VALMONTE v.

DE VILLA [GR 83988, 24 May 1990] FACTS: On 20 January 1987, the National Capital Region District Command (NCRDC) was activated pursuant to Letter of Instruction 02/87 of the Philippine General Headquarters, AFP, with the mission of conducting security operations within its area of responsibility and peripheral areas, for the purpose of establishing an effective territorial defense, maintaining peace and order, and providing an atmosphere conducive to the social, economic and political development of the National Capital Region. 1 As part of its duty to maintain peace and order, the NCRDC installed checkpoints in various parts of Valenzuela, Metro Manila. Ricardo C. Valmonte and the Union of Lawyers and Advocates for Peoples Right (ULAP) filed a petition for prohibition with preliminary injunction and/or temporary restraining order witht the Supreme Court, seeking the declaration of checkpoints in Valenzuela, Metro Manila or elsewhere, as unconstitutional and the dismantling and banning of the same or, in the alternative, to direct the respondents to formulate guidelines in the implementation of checkpoints, for the protection of the people. They aver that, because of the installation of said checkpoints, the residents of Valenzuela are worried of being harassed and of their safety being placed at the arbitrary, capricious and whimsical disposition of the military manning the checkpoints, considering that their cars and vehicles are being subjected to regular searches and check-ups, especially at night or at dawn, without the benefit of a search warrant and/or court order. Their alleged fear for their safety increased when, at dawn of 9 July 1988, Benjamin Parpon, a supply officer of the Municipality of Valenzuela, Bulacan, was gunned down allegedly in cold blood by the members of the NCRDC manning the checkpoint along McArthur Highway at Malinta, Valenzuela, for ignoring and/or refusing to submit himself to the checkpoint and for continuing to speed off inspire of warning shots fired in the air. Valmonte also claims that, on several occasions, he had gone thru these checkpoints where he was stopped and his car subjected to search/check-up without a court order or search warrant. They further contend that the said checkpoints give Gen. Renato de Villa and the National Capital Region District Command a blanket authority to make searches and/or seizures without search warrant or court order in violation of the Constitution. In the Supreme Courts decision dated 29 September 1989, Valmontes and ULAPs petition for prohibition, seeking the declaration of the checkpoints as unconstitutional and their dismantling and/or banning, was dismissed. Valmonte and ULAP filed the motion and supplemental motion for reconsideration of said decision. ISSUE: Whether checkpoints serve as a blanket authority for government officials for warrantless search and seizure and, thus, are violative of the Constitution. HELD: Nowhere in the Supreme Courts decision of 24 May 1990 did the Court legalize all checkpoints, i.e. at all times and under all circumstances. What the Court declared is, that checkpoints are not illegal per se. Thus, under exceptional circumstances, as where the survival of organized government is on the balance,

or where the lives and safety of the people are in grave peril, checkpoints may be allowed and installed by the government. Implicit in this proposition is, that when the situation clears and such grave perils are removed, checkpoints will have absolutely no reason to remain. Recent and on-going events have pointed to the continuing validity and need for checkpoints manned by either military or police forces. Although no one can be compelled, under our libertarian system, to share with the present government its ideological beliefs and practices, or commend its political, social and economic policies or performance; one must concede to it the basic right to defend itself from its enemies and, while in power, to pursue its program of government intended for public welfare; and in the pursuit of those objectives, the government has the equal right, under its police power, to select the reasonable means and methods for best achieving them. The checkpoint is evidently one of such means it has selected. Admittedly, the routine checkpoint stop does intrude, to a certain extent, on motorists right to free passage without interruption, but it cannot be denied that, as a rule, it involves only a brief detention of travellers during which the vehicles occupants are required to answer a brief question or two. For as long as the vehicle is neither searched nor its occupants subjected to a body search, and the inspection of the vehicle is limited to a visual search, said routine checks cannot be regarded as violative of an individuals right against unreasonable search. These routine checks, when conducted in a fixed area, are even less intrusive. Further, vehicles are generally allowed to pass these checkpoints after a routine inspection and a few questions. If vehicles are stopped and extensively searched, it is because of some probable cause which justifies a reasonable belief of the men at the checkpoints that either the motorist is a law-offender or the contents of the vehicle are or have been instruments of some offense. By the same token, a warrantless search of incoming and outgoing passengers, at the arrival and departure areas of an international airport, is a practice not constitutionally objectionable because it is founded on public interest, safety, and necessity. Lastly, the Courts decision on checkpoints does not, in any way, validate nor condone abuses committed by the military manning the checkpoints. The Courts decision was concerned with power, i.e. whether the government employing the military has the power to install said checkpoints. Once that power is acknowledged, the Courts inquiry ceases. True, power implies the possibility of its abuse. But whether there is abuse in a particular situation is a different ball game to be resolved in the constitutional arena. In any situation, where abuse marks the operation of a checkpoint, the citizen is not helpless. For the military is not above but subject to the law. And the courts exist to see that the law is supreme. Soldiers, including those who man checkpoints, who abuse their authority act beyond the scope of their authority and are, therefore, liable criminally and civilly for their abusive acts.

Papa vs. Mago

Facts: Petitioner Martin Alagao, head of the counter-intelligence unit of the Manila Police Department, acting upon a reliable information received on November 3, 1966 to the effect that a certain shipment of personal effects, allegedly misdeclared and undervalued, would be released the following day from the customs zone of the port of Manila and loaded on two trucks, and upon orders of petitioner Ricardo Papa, Chief of Police of Manila and a duly deputized agent of the Bureau of Customs, conducted surveillance at gate No. 1 of the customs zone. When the trucks left gate No. 1 at about 4:30 in the afternoon of November 4, 1966, elements of the counter-intelligence unit went after the trucks and intercepted them at the Agrifina Circle, Ermita, Manila. The load of the two trucks, consisting of nine bales of goods, and the two trucks, were seized on instructions of the Chief of Police. Upon investigation, a person claimed ownership of the goods and showed to the policemen a "Statement and Receipts of Duties Collected on Informal Entry No. 147-5501", issued by the Bureau of Customs in the name of a certain Bienvenido Naguit. The respondent Mago, filed a petition for mandamus and certiorari before the CFI Manila contending that the search and seizure is illegal for lack of a valid warrant. Moreover, she also contends that such articles sought from her is not included by the law for prohibited importation and that it no longer under the control of the Tariff and Customs code for it (articles) were already sold to the petitioner. She also contends that the search seizure conducted by the respondents are illegally being made outside the jurisdiction of the BOC and that the subsequent search warrant issued by the collector of customs is not valid being not issued by a judge. The respondent Mago filed an ex-parte motion to release the confiscated articles upon her posting a bond. This motion was then granted by the respondent Judge Jarencio. Issue: Was the seizure of the goods unlawful? And that the BOC has no jurisdiction over the articles sought? Held: No. it is a valid seizure. The Chief of the Manila Police Department, Ricardo G. Papa, having been deputized in writing by the Commissioner of Customs, could, for the purposes of the enforcement of the customs and tariff laws, effect searches, seizures, and arrests, and it was his duty to make seizure, among others, of any cargo, articles or other movable property when the same may be subject to

forfeiture or liable for any fine imposed under customs and tariff laws. He could lawfully open and examine any box, trunk, envelope or other container wherever found when he had reasonable cause to suspect the presence therein of dutiable articles introduced into the Philippines contrary to law; and likewise to stop, search and examine any vehicle, beast or person reasonably suspected of holding or conveying such article as aforesaid. It cannot be doubted, therefore, that petitioner Ricardo G. Papa, Chief of Police of Manila, could lawfully effect the search and seizure of the goods in question. The Tariff and Customs Code authorizes him to demand assistance of any police officer to effect said search and seizure, and the latter has the legal duty to render said assistance. This was what happened precisely in the case of Lt. Martin Alagao who, with his unit, made the search and seizure of the two trucks loaded with the nine bales of goods in question at the Agrifina Circle. He was given authority by the Chief of Police to make the interception of the cargo. Petitioner Martin Alagao and his companion policemen had authority to effect the seizure without any search warrant issued by a competent court. The Tariff and Customs Code does not require said warrant in the instant case. The Code authorizes persons having police authority under Section 2203 of the Tariff and Customs Code to enter, pass through or search any land, inclosure, warehouse, store or building, not being a dwelling house; and also to inspect, search and examine any vessel or aircraft and any trunk, package, box or envelope or any person on board, or stop and search and examine any vehicle, beast or person suspected of holding or conveying any dutiable or prohibited article introduced into the Philippines contrary to law, without mentioning the need of a search warrant in said cases. It is our considered view, therefore, that except in the case of the search of a dwelling house, persons exercising police authority under the customs law may effect search and seizure without a search warrant in the enforcement of customs laws. Note:

The Bureau of Customs has the duties, powers and jurisdiction, among others, (1) to assess and collect all lawful revenues from imported articles, and all other dues, fees, charges, fines and penalties, accruing under the tariff and customs laws; (2) to prevent and suppress smuggling and other frauds upon the customs; and (3) to enforce tariff and customs laws. The goods in question were imported from Hongkong, as shown in the "Statement and Receipts of Duties Collected on Informal Entry." As long as the importation has not been terminated the imported goods remain under the jurisdiction of the Bureau of Customs. Importation is deemed terminated only upon the payment of the duties, taxes and other charges upon the articles, or secured to be paid, at the port of entry and the legal permit for withdrawal shall have been granted.

PEOPLE v. MALMSTEDT [GR 91107, 19 June 1991] FACTS: Mikael Malmstedt, a Swedish national, entered the Philippines for the 3rd time in December 1988 as a tourist. He had visited the country sometime in 1982 and 1985. In the evening of 7 May 1989, Malmstedt left for Baguio City. Upon his arrival thereat in the morning of the following day, he took a bus to Sagada and stayed in that place for 2 days. On 11 May 1989, Capt. Alen Vasco of NARCOM, stationed at Camp Dangwa, ordered his men to set up a temporary checkpoint at Kilometer 14, Acop, Tublay, Mountain Province, for the purpose of checking all vehicles coming from the Cordillera Region. The order to establish a checkpoint in the said area was prompted by persistent reports that vehicles coming from Sagada were transporting marijuana and other prohibited drugs. Moreover, information was received by the Commanding Officer of NARCOM, that same morning, that a Caucasian coming from Sagada had in his possession prohibited drugs. At about 1:30 pm, the bus where Malmstedt was riding was stopped. Sgt. Fider and CIC Galutan boarded the bus and announced that they were members of the NARCOM and that they would conduct an inspection. During the inspection, CIC Galutan noticed a bulge on Malmstedts waist. Suspecting the bulge on Malmstedts waist to be a gun, the officer asked for Malmstedts passport and other identification papers. When Malmstedt failed to comply, the officer required him to bring out whatever it was that was bulging on his waist, which was a pouch bag. When Malmstedt opened the same bag, as ordered, the officer noticed 4 suspicious-looking objects wrapped in brown packing tape, which turned out to contain hashish, a derivative of marijuana, when opened. Malmstedt stopped to get 2 travelling bags from the luggage carrier, each containing a teddy bear, when he was invited outside the bus for questioning. It was observed that there were also bulges inside the teddy bears which did not feel like foam stuffing. Malmstedt was then brought to the headquarters of the NARCOM at Camp Dangwa for further investigation. At the investigation room, the officers opened the teddy bears and they were found to also contain hashish. Representative samples were taken from the hashish found among the personal effects of Malmstedt and the same were brought to the PC Crime Laboratory for chemical analysis, which established the objects examined as hashish. Malmstedt claimed that the hashish was planted by the NARCOM officers in his pouch bag and that the 2 travelling bags were not owned by him, but were merely entrusted to him by an Australian couple whom he met in Sagada. He further claimed that the Australian couple intended to take the same bus with him but because there were no more seats available in said bus, they decided to take the next ride and asked Malmstedt to take charge of the bags, and that they would meet each other at the Dangwa Station. An information was filed against Malmstedt for violation of the Dangerous Drugs Act. During the arraignment, Malmstedt entered a plea of not guilty. After trial and on 12 October 1989,

the trial court found Malmstedt guilty beyond reasonable doubt for violation of Section 4, Article II of RA 6425 and sentenced him to life imprisonment and to pay a fine of P20,000. Malmstedt sought reversal of the decision of the trial court. ISSUE: Whether the personal effects of Malmstedt may be searched without an issued warrant. HELD: The Constitution guarantees the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures. However, where the search is made pursuant to a lawful arrest, there is no need to obtain a search warrant. A lawful arrest without a warrant may be made by a peace officer or a private person under the following circumstances. Section 5 provides that a peace officer or a private person may, without a warrant, arrest a person (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail, and he shall be proceeded against in accordance with Rule 112, Section 7. Herein, Malmstedt was caught in flagrante delicto, when he was transporting prohibited drugs. Thus, the search made upon his personal effects falls squarely under paragraph (1) of the foregoing provisions of law, which allow a warrantless search incident to a lawful arrest.

Caballes vs. Court of Appeals [GR 136292, 15 January 2002] First Division, Puno (J): 4 concur Facts: About 9:15 p.m. of 28 June 1989, Sgt. Victorino Noceja and Pat. Alex de Castro, while on a routine patrol in Barangay Sampalucan, Pagsanjan, Laguna, spotted a passenger jeep unusually covered with kakawati leaves. Suspecting that the jeep was loaded with smuggled goods, the two police officers flagged down the vehicle. The jeep was driven by Rudy Caballes y Taio. When asked what was loaded on the jeep, he did not answer, but he appeared pale and nervous. With Caballes consent, the police officers check ed the cargo and they discovered bundles of 3.08 mm aluminum/galvanized conductor wires exclusively owned by National Power Corporation (NAOCOR). The conductor wires weighed 700 kilos and valued at P55,244.45. Noceja asked Caballes where the wires came from and Caballes answered that they came from Cavinti, a town approximately 8 kilometers away from Sampalucan. Thereafter, Caballes and the vehicle with the high-voltage wires were brought to the Pagsanjan Police Station. Danilo Cabale took pictures of Caballes and the jeep loaded with the wires which were turned over to the Police Station Commander of Pagsanjan, Laguna. Caballes was incarcerated for 7 days in the Municipal jail. Caballes was charged with the crime of theft in an information dated 16 October 1989. During the arraignment, Caballes pleaded not guilty and hence, trial on the merits ensued. On 27 April 1993, Regional Trial Court of Santa Cruz, Laguna rendered judgment, finding Caballes, guilty beyond reasonable doubt of the crime of theft. In a resolution dated 9 November 1998, the trial court denied Caballes motion for reconsideration. The Court of Appeals affirmed the trial court decision on 15 September 1998. Caballes appealed the decision by certiorari. Issue: Whether Caballes passive submission to the statement of Sgt. Noceja that the latter will look at the contents of his vehicle and he answered in the positive be considered as waiver on Caballes part on warrantless search and seizure. Held: Enshrined in our Constitution is the inviolable right of the people to be secure in their persons and properties against unreasonable searches and seizures, as defined under Section 2, Article III thereof. The exclusionary rule under Section 3(2), Article III of the Constitution bars the admission of evidence obtained in violation of such right. The constitutional proscription against warrantless searches and seizures is not absolute but admits of certain exceptions, namely: (1) warrantless search incidental to a lawful arrest recognized under Section 12, Rule 126 of the Rules of Court and by prevailing jurisprudence; (2) seizure of evidence in plain view; (3) search of moving vehicles; (4) consented warrantless search; (5) customs search; (6) stop and frisk situations (Terry search); and (7) exigent and emergency circumstances. In cases where warrant is necessary, the steps prescribed by the Constitution and reiterated in the Rules of Court must be complied with. In the exceptional events where warrant is not necessary to effect a valid search or seizure, or when the latter cannot be performed except without a warrant, what constitutes a reasonable or unreasonable search or seizure is purely a judicial question,

determinable from the uniqueness of the circumstances involved, including the purpose of the search or seizure, the presence or absence of probable cause, the manner in which the search and seizure was made, the place or thing searched and the character of the articles procured. It is not controverted that the search and seizure conducted by the police officers was not authorized by a search warrant. The mere mobility of these vehicles, however, does not give the police officers unlimited discretion to conduct indiscriminate searches without warrants if made within the interior of the territory and in the absence of probable cause. Herein, the police officers did not merely conduct a visual search or visual inspection of Caballes vehicle. They had to reach inside the vehicle, lift the kakawati leaves and look inside the sacks before they were able to see the cable wires. It thus cannot be considered a simple routine check. Also, Caballes vehicle was flagged down because the police officers who were on routine patrol became suspicious when they saw that the back of the vehicle was covered with kakawati leaves which, according to them, was unusual and uncommon. The fact that the vehicle looked suspicious simply because it is not common for such to be covered with kakawati leaves does not constitute probable cause as would justify the conduct of a search without a warrant. In addition, the police authorities do not claim to have received any confidential report or tipped information that petitioner was carrying stolen cable wires in his vehicle which could otherwise have sustained their suspicion. Philippine jurisprudence is replete with cases where tipped information has become a sufficient probable cause to effect a warrantless search and seizure. Unfortunately, none exists in the present case. Further, the evidence is lacking that Caballes intentionally surrendered his right against unreasonable searches. The manner by which the two police officers allegedly obtained the consent of Caballes for them to conduct the search leaves much to be desired. When Caballes vehicle was flagged down, Sgt. Noceja approached Caballes and told him I will look at the contents of his vehicle and he answered in the positive. By uttering those words, it cannot be said the police officers were asking or requesting for permission that they be allowed to search the vehicle of Caballes. For all intents and purposes, they were informing, nay, imposing upon Caballes that they will search his vehicle. The consent given under intimidating or coercive circumstances is no consent within the purview of the constitutional guaranty. In addition, in cases where the Court upheld the validity of consented search, it will be noted that the police authorities expressly asked, in no uncertain terms, for the consent of the accused to be searched. And the consent of the accused was established by clear and positive proof. Neither can Caballes passive submission be construed as an implied acquiescence to the warrantless search. Casting aside the cable wires as evidence, the remaining evidence on record are insufficient to sustain Caballes conviction. His guilt can only be established without violating the constitutional right of the accused against unreasonable search and seizure.

De Garcia vs. Locsin

(3) Lastly, that said person had an actual intention to relinquish the right.

Facts: Mariano Almeda, an agent of Anti-usury Board applied for a search warrant before the respondent judge against the petitioner, believing that there is a probable cause that the petitioner, Leona De Garcia, keeps and conseals in her house and store at Victoria Tarlac certain books, lists, chits, receipts and documents relating to her activities as usurer, contrary to law. The search warrant was granted and with officers of the law, Almeda et al search the person and house/store of the petitioner to seized evidence related to usury. The search proceeded without the presence of the petitioner, and thus, packages of records were confiscated, turned over to the fiscal by the Anti-Usury Board and was later filed six separate complaint against the petitioner for violation of the Anti-usury law. Thus, a motion was filed by the petitioner demanding the respondent Board to return the articles seized in the search in the ground of its invalidity. The respondent judge denied such motion and contends that even though the search warrant is invalid, the articles are still admissible as evidence since there is a waiver of right on the part of the petitioner. It is true that the petitioner did not object to the legality of the search when it was made. She could not have objected because she was sick and was not present when the warrant was served upon Alfredo Salas. Certainly, the constitutional immunity from unreasonable searches and seizures, being a personal one, cannot be waived by anyone except the person whose rights are invaded or one who is expressly authorized to do so in his or her behalf. Of course, the petitioner came to know later of the seizure of some of her papers and documents. But this was precisely the reason why she sent her attorneys to the office of the Anti-Usury Board to demand the return of the documents seized. In any event, the failure on the part of the petitioner and her bookkeeper to resist or object to the execution of the warrant does not constitute an implied waiver of constitutional right. As the constitutional guaranty is not dependent upon any affirmative act of the citizen, the courts do not place the citizen in the position of either contesting an officer's authority by force, or waiving his constitutional rights; but instead they hold that a peaceful submission to a search or seizure is not a consent or an invitation thereto, but is merely a demonstration of regard for the supremacy of the law. Moreover, the invalidity of the search warrant not only anchored in the mentioned ground, but also, the respondent judge did not follow the constitutional requirement in determining probable cause to issue warrants, such that, it is the applicant that determines the probable cause in the case at bar. In 35 constitution, it mandated the judge to personally determine th e existence of probable cause and no other.

Issue: Was there a waiver of right? If there is, would it make the search valid and therefore articles seized are admissible evidence?

Held: No. There is no waiver of right and that the articles are inadmissible evidence. The constitutional immunity against unreasonable searches and seizures is a personal right which may be waived.The waiver may be either express or implied. In the case at bar, no express waiver has been made. It is urged, however, that there has been a waiver by implication. It is well-settled that to constitute a waiver of a constitutional right, it must appear, (1) First, that the right exists; (2) Secondly, that the person involved had knowledge, either actual or constructive, of the existence of such right; and,

POSADAS VS. COURT OF APPEALS [188 SCRA 288; G.R. NO. 89139; 2 AUG 1990] Facts: Members of the Integrated National Police (INP) of the Davao Metrodiscom assigned with the Intelligence Task Force, Pat. Ursicio Ungab and Pat. Umbra Umpar conducted surveillance along Magallanes Street, Davao City. While in the vicinity of Rizal Memorial Colleges they spotted petitioner carrying a "buri" bag and they noticed him to be acting suspiciously. They approached the petitioner and identified themselves as members of the INP. Petitioner attempted to flee but his attempt to get away was unsuccessful. They then checked the "buri" bag of the petitioner where they found one (1) caliber .38 Smith & Wesson revolver with Serial No. 770196, two (2) rounds of live ammunition for a .38 caliber gun, a smoke (tear gas) grenade, and two (2) live ammunitions for a .22 caliber gun. They brought the petitioner to the police station for further investigation. In the course of the same, the petitioner was asked to show the necessary license or authority to possess firearms and ammunitions found in his possession but he failed to do so. He was then taken to the Davao Metrodiscom office and the prohibited articles recovered from him were indorsed to M/Sgt. Didoy the officer then on duty. He was prosecuted for illegal possession of firearms and ammunitions in the Regional Trial Court of Davao City. Issue: Whether or not the warantless search is valid. Held: In justifying the warrantless search of the buri bag then carried by the petitioner, argues that under Section 12, Rule 136 of the Rules of Court a person lawfully arrested may be searched for dangerous weapons or anything used as proof of a commission of an offense without a search warrant. It is further alleged that

the arrest without a warrant of the petitioner was lawful under the circumstances. in the case at bar, there is no question that, indeed, it is reasonable considering that it was effected on the basis of a probable cause. The probable cause is that when the petitioner acted suspiciously and attempted to flee with the buri bag there was a probable cause that he was concealing something illegal in the bag and it was the right and duty of the police officers to inspect the same. It is too much indeed to require the police officers to search the bag in the possession of the petitioner only after they shall have obtained a search warrant for the purpose. Such an exercise may prove to be useless, futile and much too late. Clearly, the search in the case at bar can be sustained under the exceptions heretofore discussed, and hence, the constitutional guarantee against unreasonable searches and seizures has not been violated.

PEOPLE v. MUSA G.R. No. 96177 January 27, 1993

Inside the NARCOM Office, Mari Musa was investigated by one NARCOM agent which investigation was reduced into writing. The document stated that the marijuana belonged to Mari Musa and Mari Musa was asked to sign it. But Mari Musa refused to sign because the marijuana did not belong to him. Mari Musa said he was not told that he was entitled to the assistance of counsel, although he himself told the NARCOM agents he wanted to be assisted by counsel. Mari Musa said four bullets were then placed between the fingers of his right hand and his fingers were pressed which felt very painful. The NARCOM agents boxed him and Mari Musa lost consciousness. The fiscal asked him if the marijuana was owned by him and he said "not." After that single question, Mari Musa was brought to the City Jail. Mari Musa said he did not tell the fiscal that he had been maltreated by the NARCOM agents because he was afraid he might be maltreated in the fiscal's office. Mari Musa denied the NARCOM agents' charge that he had sold two wrappers of marijuana to them; that he had received from them a P20.00 bill which he had given to his wife. He did not sell marijuana because he was afraid that was against the law and that the person selling marijuana was caught by the authorities; and he had a wife and a very small child to support. Mari Musa said he had not been arrested for selling marijuana before. _____________________ After trial, the trial court found the accused Musa guilty beyond reasonable doubt. In this appeal, the appellant contends that his guilt was not proved beyond reasonable doubt and impugns the credibility of the prosecution witnesses.

Facts: The appellant, Mari Musa, seeks the reversal of the decision of the RTC of Zamboanga City finding him guilty of selling (2) wrappers containing dried marijuana leaves in violation of R.A. No. 6425 (Dangerous Drugs Act of 1972). _______________________ Prosecution evidence shows that in the morning of December 13, 1989, T/Sgt. Belarga, leader of a NARCOTICS COMMAND (NARCOM) team instructed Sgt. Ani to conduct surveillance and test buy on a certain Mari Musa of Suterville, Zamboanga City. Sgt. Ani was able to buy one newspaper-wrapped dried marijuana for P 10.00. Sgt. Belarga inspected the stuff turned over to him and found it to be marijuana. The next day, a buy-bust was planned. Sgt. Amado Ani was assigned as the poseur buyer for which purpose he was given P20.00. Arriving at the target site, Sgt. Ani proceeded to the house of Mari Musa, while the rest of the NARCOM group positioned themselves at strategic places about 90 to 100 meters from Mari Musa's house. T/Sgt. Belarga could see what went on between Ani and suspect Mari Musa from where he was. Ani approached Mari Musa, who came out of his house, and asked Ani what he wanted. Ani said he wanted some more stuff. Ani gave Mari Musa the P20.00 marked money. After receiving the money, Mari Musa went back to his house and came back and gave Amado Ani two newspaper wrappers containing dried marijuana. Ani opened the two wrappers and inspected the contents. Convinced that the contents were marijuana, Ani walked back towards his companions and raised his right hand. The two NARCOM teams, riding the two civilian vehicles, sped towards Sgt. Ani. Ani joined Belarga's team and returned to the house. At the time Sgt. Ani first approached Mari Musa, there were four persons inside his house: Mari Musa, another boy, and two women, one of whom Ani and Belarga later came to know to be Mari Musa's wife. The second time, Ani with the NARCOM team returned to Mari Musa's house, the woman, who was later known as Mari Musa's wife, slipped away from the house. Sgt. Belarga frisked Mari Musa but could not find the P20.00 marked money with him. Mari Musa was then asked where the P20.00 was and he told the NARCOM team he has given the money to his wife (who had slipped away). Sgt. Belarga also found a plastic bag containing dried marijuana inside it somewhere in the kitchen. Mari Musa was then placed under arrest and brought to the NARCOM office. All submitted specimens were examined and gave positive results for the presence of marijuana. _________________________ According to the version of the defense, on December 14, 1989, at about 1:30 in the afternoon, Mari Musa was in his house at Suterville, Zamboanga City. With him were his wife Ara, his oneyear old child, a woman manicurist, and a male cousin named Abdul Musa. About 1:30 that afternoon, while he was being manicured at one hand, his wife was inside the one room of their house, putting their child to sleep. Three NARCOM agents, who introduced themselves as NARCOM agents, dressed in civilian clothes, got inside Mari Musa's house whose door was open. The NARCOM agents did not ask permission to enter the house but simply announced that they were NARCOM agents. The NARCOM agents searched Mari Musa's house and Mari Musa asked them if they had a search warrant. The NARCOM agents were just silent. The NARCOM agents found a red plastic bag whose contents, Mari Musa said, he did not know. Mari Musa, then, was handcuffed and when Mari Musa asked why, the NARCOM agents told him for clarification.

1st Argument: The appellant claims that the testimony of Sgt. Ani is not credible because: (1) prior to the buy-bust operation, neither Sgt. Ani nor the other NARCOM agents were personally known by the appellant or vice-versa; and (2) there was no witness to the alleged giving of the two wrappers of marijuana by the appellant to Sgt. Ani. The Court finds the testimony of Sgt. Ani regarding the buy-bust operation, which resulted in the apprehension, prosecution and subsequent conviction of the appellant, to be direct, lucid and forthright. The contention that the appellant could not have transacted with Sgt. Ani because they do not know each other is without merit. The day before the buy-bust operation, Sgt. Ani conducted a test-buy and he successfully bought a wrapper of marijuana from the appellant. Through this previous transaction, Sgt. Ani was able to gain the appellant's confidence for the latter to sell more marijuana to Sgt. Ani the following day, during the buy-bust operation. Moreover, the Court has held that what matters is not an existing familiarity between the buyer and the seller, for quite often, the parties to the transaction may be strangers, but their agreement and the acts constituting the sale and delivery of the marijuana.

2nd Argument: The appellant argues that it was impossible for the appellant to sell marijuana while his wife, cousin and manicurist were present. But the place of the commission of the crime of selling prohibited drugs has been held to be not crucial and the presence of other people apart from the buyer and seller will not necessarily prevent the consummation of the illegal sale. As the Court observed in People v. Paco, these factors may sometimes camouflage the commission of the crime. In the instant case, the fact that the other people inside the appellant's house are known to the appellant may have given him some assurance that these people will not report him to the authorities.

3rd Argument: The appellant submits that since T/Sgt. Belarga admitted that he was about 90 meters away from Sgt. Ani and the appellant, he could not have possibly witnessed the sale. The appellant invokes People v.Ale where the Court observed that from a distance of 10-15

meters, a policeman cannot distinguish between marijuana cigarette from ordinary ones by the type of rolling done on the cigarette sticks. And since T/Sgt. Belarga allegedly did not see the sale, the appellant contends that the uncorroborated testimony of Sgt. Ani cannot stand as basis for his conviction. People v. Ale does not apply here because the policeman in that case testified that he and his companion were certain that the appellant therein handed marijuana cigarettes to the poseurbuyer based on the appearance of the cigarette sticks. The Court rejected this claim, stating that: This Court cannot give full credit to the testimonies of the prosecution witnesses marked as they are with contradictions and tainted with inaccuracies. In the case at bar, however, T/Sgt. Belarga did not positively claim that he saw the appellant hand over marijuana to Sgt. Ani. What he said was that there was an exchange of certain articles between the two. Contrary to the contention of the appellant, it was not impossible for T/Sgt. Belarga to have seen, from a distance of 90-100 meters, Sgt. Ani hand to the appellant "something" and for the latter to give to the former "something." Notwithstanding the fact that T/Sgt. Belarga could not have been certain that what Sgt. Ani received from the appellant was marijuana because of the distance, his testimony, nevertheless, corroborated the direct evidence, which the Court earlier ruled to be convincing, presented by Sgt. Ani on the following material points: (1) T/Sgt. Belarga instructed Sgt. Ani to conduct a surveillance and test-buy operation on the appellant (2) later that same day, Sgt. Ani went back to their office and reported a successful operation and turned over to T/Sgt. Belarga one wrapper of marijuana; (3) T/Sgt. Belarga then organized a team to conduct a buy-bust operation the following day; (4) on December 14, 1989, T/Sgt. Belarga led a team of NARCOM agents who went to Suterville, Zamboanga City; (5) T/Sgt. Belarga gave a P20.00 marked bill to Sgt. Ani which was to be used in the buy-bust operation; (6) upon the arrival of the NARCOM agents in Suterville, Zamboanga City, Sgt. Ani proceeded to the house of the appellant while some agents stayed in the vehicles and others positioned themselves in strategic places; the appellant met Sgt. Ani and an exchange of articles took place. The testimony of the poseur-buyer is sufficient to prove the consummation of the sale of the prohibited drug.

Held: 1) No. The Constitution declares inadmissible, any evidence obtained in violation of the freedom from unreasonable searches and seizures. Rule 126, Section 12 of the Rules of Court expressly authorizes a warrantless search and seizure incident to a lawful arrest, but the "plain view" doctrine, which states that objects in the plain view of an officer who has the right to be in the position to have that view are subject to seizure without warrant or search and seizure and may be presented in evidence, does not apply under the circumstances of the case. (Sec. 12. Search incident to lawful arrest. A person lawfully arrested may be searched for dangerous weapons or anything which may be used as proof of the commission of an offense, without a search warrant.) The plastic bag was not within their "plain view" when they arrested the appellant as to justify its seizure. The marijuana contained in the plastic bag was seized illegally and cannot be presented in evidence pursuant to Article III, Section 3(2) of the Constitution because unlike in Ker v. California, where the marijuana was visible to the police officer's eyes, the NARCOM agents in this case could not have discovered the inculpatory nature of the contents of the bag had they not forcibly opened it. Even assuming then, that the NARCOM agents inadvertently came across the plastic bag because it was within their "plain view," what may be said to be the object in their "plain view" was just the plastic bag and not the marijuana. It must be immediately apparent to the police that the items that they observe may be evidence of a crime, contraband, or otherwise subject to seizure. The "plain view" doctrine may not, however, be used to launch unbridled searches and indiscriminate seizures nor to extend a general exploratory search made solely to find evidence of defendant's guilt. The "plain view" doctrine is usually applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object. It may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges. In Ker v. California 42 police officers, the admissibility of the package was challenged before the U.S. Supreme Court, which held, after observing that it was not unreasonable for the officer to walk to the doorway of the adjacent kitchen on seeing the defendant wife emerge therefrom, that "the discovery of the brick of marijuana did not constitute a search, since the officer merely saw what was placed before him in full view. The U.S. Supreme Court ruled that the warrantless seizure of the marijuana was legal on the basis of the "plain view" doctrine and upheld the admissibility of the seized drugs as part of the prosecution's evidence. The NARCOM agents had to move from one portion of the house to another before they sighted the plastic bag. Moreover, when the NARCOM agents saw the plastic bag hanging in one corner of the kitchen, they had no clue as to its contents. They had to ask the appellant what the bag contained. When the appellant refused to respond, they opened it and found the marijuana. The incriminating nature of the contents of the plastic bag was not immediately apparent from the "plain view" of said object. It cannot be claimed that the plastic bag clearly betrayed its contents, whether by its distinctive configuration, its transprarency, or otherwise, that its contents are obvious to an observer. 2) None. The exclusion of this particular evidence does not, however, diminish, in any way, the damaging effect of the other pieces of evidence presented by the prosecution to prove that the appellant sold marijuana, in violation of Dangerous Drugs Act of 1972. The Court holds that by virtue of the testimonies of Sgt. Ani and T/Sgt. Belarga and the two wrappings of marijuana sold by the appellant to Sgt. Ani, among other pieces of evidence, the guilt of the appellant of the crime charged has been proved beyond reasonable doubt. Appeal was dismissed.

MOST RELEVANT FACTS 4th Argument: Finally, the appellant assails the seizure and admission as evidence of a plastic bag containing marijuana which the NARCOM agents found in the appellant's kitchen. It appears that after Sgt. Ani gave the pre-arranged signal to the other NARCOM agents, the latter moved in and arrested the appellant inside the house. They searched him to retrieve the marked money but didn't find it. Upon being questioned, the appellant said that he gave the marked money to his wife. Thereafter, T/Sgt. Belarga and Sgt. Lego went to the kitchen and noticed what T/Sgt. Belarga described as a "cellophane colored white and stripe hanging at the corner of the kitchen." They asked the appellant about its contents but failing to get a response, they opened it and found. At the trial, the appellant questioned the admissibility of the plastic bag and the marijuana it contains but the trial court issued an Order ruling that these are admissible in evidence.

Issues: 1) Is the trial court correct in ruling that the red plastic bag containing dried marijuana leaves was admissible in evidence? 2) If No, does the inadmissibility have any effect on the innocence of Musa?

PEOPLE v DORIA 301 SCRA 668 PUNO; January 22, 1999

- In the case, Doria was caught in the act of committing an offense. When an accused is apprehended in flagrante delicto as a result of a buy-bust operation, the police are not only authorized but duty-bound to arrest him even without a warrant. - However, the warrantless arrest, search and seizure of Gaddao is invalid - Accused-appellant Gaddao was not caught red-handed during the buy-bust operation to give ground for her arrest under Section 5 (a) of Rule 113. She was not committing any crime. Contrary to the finding of the trial court, there was no occasion at all for appellant Gaddao to flee from the policemen to justify her arrest in "hot pursuit." 114 In fact, she was going about her daily chores when the policemen pounced on her. - Neither could the arrest of appellant Gaddao be justified under the second instance of Rule 113. "Personal knowledge" of facts in arrests without warrant under Section 5 (b) of Rule 113 must be based upon "probable cause" which means an "actual belief or reasonable grounds of suspicion." In case, there was no reasonable suspicion especially as she was arrested solely on the basis of the alleged identification made by her co-accused - Doria did not point to appellant Gaddao as his associate in the drug business, but as the person with whom he left the marked bills. This identification does not necessarily lead to the conclusion that appellant Gaddao conspired with her coaccused in pushing drugs as Doria may have left the money in her house, with or without her knowledge, with or without any conspiracy. Save for accused-appellant Doria 's word, the Narcom agents had no reasonable grounds to believe that she was engaged in drug pushing. - As the arrest was illegal, the search and seizure is not incidental to the arrest 2. NO - The marijuana was not in plain view of the police officers and its seizure without the requisite search warrant was in violation of the law and the Constitution as the contents of the box where the marijuana was partially hidden was not readily apparent to PO Manlangit, one of the arresting officers. - As a general rule, objects in plain view of arresting officers may be seized without a search warrant but must follow these requisites: (a) the law enforcement officer in search of the evidence has a prior justification for an intrusion or is in a position from which he can view a particular area; (b) the discovery of the evidence in plain view is inadvertent; (c) it is immediately apparent to the officer that the item he observes may be evidence of a crime, contraband or otherwise subject to seizure. - However, if it is not plain view of the police officers, it may not be seized without a warrant except if the package proclaims its contents, whether by its distinctive configuration, its transparency, or if its contents are obvious to an observer, then the contents are in plain view and may be seized. - The fact that the box containing about six (6) kilos of marijuana 137 was found in the house of accused-appellant Gaddao does not justify a finding that she herself is guilty of the crime charged.

FACTS - Philippine National Police (PNP) Narcotics Command (Narcom), received information from two (2) civilian informants (CI) that one "Jun" was engaged in illegal drug activities in Mandaluyong City. They decided to entrap him via a buy-bust operation. -The poseur-buyer, PO2 Manlangit set aside 1600 pesos as marked money for the entrapment operation, which was then handed to Jun upon transaction. Jun returned an hour later bringing marijuana where he and his associates subsequently arrested Jun but did not find the marked bills on him. Jun said he left the bills to his associate Neneth. Jun led the police to Neneths house . - The police went to Neneths house. Standing by the door, PO3 Manlangit noticed a carton box under the dining table. He saw that one of the box's flaps was open and inside the box was something wrapped in plastic. The plastic wrapper and its contents appeared similar to the marijuana earlier "sold" to him by "Jun." His suspicion aroused, PO3 Manlangit entered "Neneth's" house and took hold of the box. He peeked inside the box and found that it contained ten (10) bricks of what appeared to be dried marijuana leaves. They also found the marked bills. They arrested Jun and Neneth and brought them to headquarters. It was only then that the police learned that "Jun" is Florencio Doria y Bolado while "Neneth" is Violeta Gaddao y Catama. - The trial court found them guilty.

ISSUES 1. WON the warrantless arrest of Doria and Gaddao, the search of the latters person and house, and the admissibility of the pieces of evidence obtained therefrom is valid 2. WON the marijuana was seized validly for being in plain view of the police officers

HELD 1. YES - We also hold that the warrantless arrest of accused-appellant Doria is not unlawful. Warrantless arrests are allowed in three instances as provided by Section 5 of Rule 113 of the 1985 Rules on Criminal Procedure, to wit: Sec. 5. Arrest without warrant; when lawful. A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; - Under Section 5 (a), as above-quoted, a person may be arrested without a warrant if he "has committed, is actually committing, or is attempting to commit an offense."

SANCHEZ V. DEMETRIOU November 3, 1993 Cruz, J. FACTS: -Crime Commission requested the filing of appropriate charges against several persons, including the petitioner, in connection with the rape-slay of Mary Eileen Sarmenta and the killing of Allan Gomez. Acting on this request, the Panel of State Prosecutors of the Department of Justice conducted a preliminary investigation on August 9, 1993. Petitioner Sanchez was not present but was represented by his counsel, Atty. Marciano Brion, Jr. 93, PNP Commander Rex Piad issued an "invitation" to the petitioner requesting him to appear for investigation at Camp Vicente Lim in Canlubang, Laguna. It was served on Sanchez in the morning of August 13,1993, and he was immediately taken to the said camp. Aurelio Centeno, and SPO III Vivencio Malabanan, who both executed confessions implicating him as a principal in the rape-slay of Sarmenta and the killing of Gomez. The petitioner was then placed on "arrest status" and taken to the Department of Justice in Manila. arrival, with Atty. Salvador Panelo as his counsel. ved on Sanchez. This warrant was issued in connection with Criminal Cases for violation of Section 8, in relation to Section 1, of R.A. No. 6713. Sanchez was forthwith taken to the CIS Detention Center, Camp Crame, where he remains confined. nt prosecutors filed with the Regional Trial Court of Calamba, Laguna, seven informations charging Antonio L. Sanchez, Luis Corcolon, Rogelio Corcolon, Pepito Kawit, Baldwin Brion, Jr., George Medialdea and Zoilo Ama with the rape and killing of Mary Eileen Sarmenta. arrest of all the accused, including the petitioner, in connection with the said crime. apprehension that the trial of the said cases might result in a miscarriage of justice. SC thereupon ordered the transfer of the venue of the seven cases to Pasig, Metro Manila, where they were raffled to respondent Judge Harriet Demetriou.

seven informations were amended to include the killing of Allan Gomez as an aggravating circumstance. substantially on the grounds now raised in this petition. On September 13, 1993, after oral arguments, the respondent judge denied the motion. Sanchez then filed with this Court the instant petition for certiorari and prohibition with prayer for a temporary restraining order/writ of injunction. ISSUES: WON Sanchez was unlawfully withheld of his right to Preliminary Investigation - NO WON the arrest of Sanchez was legal - YES (by virtue of the jurisdiction subsequently acquired) The Preliminary Investigation. HELD: the petitioner's contention that he was not accorded the right to present counteraffidavits. manifestation that his counsel, Atty. Brion, was not notified of the inquest held on August 13, 1993, and that he was not furnished with the affidavits sworn to on that date by Vivencio Malabanan and Aurelio Centeno, or with their supplemental affidavits Panelo as his counsel. During the entire proceedings, he remained quiet and let this counsel speak and argue on his behalf. It was only in his tardy Reply that he has suddenly bestirred himself and would now question his representation by this lawyer as unauthorized and inofficious. the respondent cannot be subpoenaed or, if subpoenaed, does not submit counter-affidavits, the investigating officer shall base his resolution on the evidence presented by the complainant. preliminary investigation 5, so may he waive the right to present counteraffidavits or any other evidence in his defense. of a preliminary investigation does not impair the validity of the information or otherwise render the same defective and neither does it affect the jurisdiction of the court over the case or constitute a ground for quashing the information. 6 iminary investigation has been held, or if it is flawed, the trial court may, on motion of the accused, order an investigation or reinvestigation and

hold the proceedings in the criminal case in abeyance. 7 In the case at bar, however, the respondent judge saw no reason or need for such a step. Finding no arbitrariness in her factual conclusions, we shall defer to her judgment. The Arrest taking of a person into custody in order that he may be bound to answer for the commission of an offense. Under Section 2 of the same Rule, an arrest is effected by an actual restraint of the person to be arrested or by his voluntary submission to the custody of the person making the arrest. ication of actual force, manual touching of the body, physical restraint or a formal declaration of arrest is not, required. It is enough that there be an intent on the part of one of the parties to arrest the other and an intent onthe part of the other to submit, under the belief and impression that submission is necessary. 12 The petitioner was taken to Camp Vicente Lim, Canlubang, Laguna, by virtue of a letter-invitation issued by PNP Commander Rex Piad requesting him to appear at the said camp for investigation. -ranking military official and the investigation of Sanchez was to be made at a military camp. Although in the guise of a request, it was obviously a command or an order of arrest that the petitioner could hardly he expected to defy. In fact, apparently cowed by the "invitation," he went without protest (and in informal clothes and slippers only) with the officers who had come to fetch him. It may not be amiss to observe that under R.A. No. 7438, the requisites of a "custodial investigation" are applicable even to a person not formally arrested but merely "invited" for questioning. placed on "arrest status" after he was pointed to by Centeno and Malabanan as the person who first raped Mary Eileen Sarmenta. Respondent Zuo himself acknowledged during the August 13, 1993 hearing that, on the basis of the sworn statements of the two state witnesses, petitioner had been "arrested." His arrest did not come under Section 5, Rule 113 of the Rules of Court, petitioner allegedly participated in the killing of Allan Gomez and the rapeslay of Mary Eileen Sarmenta. Neither did they have any personal knowledge that the petitioner was responsible therefor because the basis of the arrest was the sworn statements of Centeno and Malabanan. Moreover, as the rape and killing of Sarmenta allegedly took place on June 28-June 29, 1993, or forty-six days before the date of the arrest, it cannot be said that the offense had "in fact just been committed" when the petitioner was arrested.

Nevertheless, the Regional Trial Court lawfully acquired jurisdiction over the person of the petitioner by virtue of the warrant of arrest it issued on August 26, 1993 against him and the other accused in connection with the rape-slay cases. It was belated, to be sure, but it was nonetheless legal. Applicable by analogy to the case at bar is Rule 102 Section 4 of the Rules of Court that: If it appears that the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or judge or by virtue of a judgment or order of a court of record, and that the court or judge had jurisdiction to issue the process, render the judgment, or make the order, the writ shall not be allowed; or if the jurisdiction appears after the writ is allowed, the person shall not be discharged by reason of any informality or defect in the process, judgment, or order. Nor shall, anything in this rule be held to authorize the discharge of a person charged with or convicted of an offense in the Philippines or of a person suffering imprisonment under lawful judgment.

BLAS F. OPLE, vs. RUBEN D. TORRES et al [G.R. No. 127685, July 23, 1998] FACTS: President Fidel V. Ramos issued Administrative Order (A.O.) 308 on December 12, 1996 entitled Adoption of National Computerized Identification Reference System or commonly known as Natioanal ID System. Senator Blas F. Ople filed a petition before the Supreme Court questioning the constitutionality of the said executive issuance on two important grounds, viz: one, it is a usurpation of the power of Congress to legislate, and two, it impermissibly intrudes on our citizenry's protected zone of privacy. We grant the petition for the rights sought to be vindicated by the petitioner need stronger barriers against further erosion. ISSUE: DOES A.0 308 VIOLATE THE RIGHT TO PRIVACY? HELD: Yes. Assuming, arguendo, that A.O. No. 308 need not be the subject of a law, still it cannot pass constitutional muster as an administrative legislation because facially it violates the right to privacy. A.O. 308 is so vague. The vagueness, the over breadth of A.O. No. 308 which if implemented will put our people's right to privacy in clear and present danger. There are no vital safeguards .A.O. No. 308 should also raise our antennas for a further look will show that it does not state whether encoding of data is limited to biological information alone for identification purposes. In fact, the Solicitor General claims that the adoption of the Identification Reference System will contribute to the "generation of population data for development planning." 54 This is an admission that the Population Reference Number (PRN) will not be used solely for identification but for the generation of other data with remote relation to the a vowed purposes of A.O. No. 308. Clearly, the indefiniteness of A.O. No. 308can give the government the roving authority to store and retrieve information for a purpose other than the identification of the individual through his PRN .The potential for misuse of the data to be gathered under A.O. No. 308cannot be underplayed as the dissenters do. Pursuant to said administrative order, an individual must present his PRN every time he deals with a government agency to avail of basic services and security. His transactions with the government agency will necessarily be recorded -- whether it be in the computer or in the documentary file of the

agency. The individual's file may include his transactions for loan availments, income tax returns, statement of assets and liabilities, reimbursements for medication, hospitalization, etc. The more frequent the use of the PRN, the better the chance of building a huge and formidable information base through the electronic linkage of the files. The data may be gathered for gainful and useful government purposes; but the existence of this vast reservoir of personal information constitutes a covert invitation to misuse, a temptation that may be too great for some of our authorities to resist. We can even grant, arguendo, that the computer data file will be limited to the name, address and other basic personal information about the individual. Even that hospitable assumption will not save A.O. No. 308 from constitutional infirmity for again said order does not tell us in clear and categorical terms how these information gathered shall be handled. It does not provide who shall control and access the data, under what circumstances and for what purpose. These factors are essential to safeguard the privacy and guaranty the integrity of the information. Well to note, the computer linkage gives other government agencies access to the information. Yet, there are no controls to guard against leakage of information. When the access code of the control programs of the particular computer system is broken, an intruder, without fear of sanction or penalty, can make use of the data for whatever purpose, or worse, manipulate the data stored within the system. It is plain and we hold that A.O. No. 308 falls short of assuring that personal information which will be gathered about our people will only be processed for unequivocally specified purposes. The lack of proper safeguards in this regard of A.O. No. 308 may interfere with the individual's liberty of abode and travel by enabling authorities to track-down his movement; it may also enable unscrupulous persons to access confidential information and circumvent the right against self-incrimination; it may pave the way for "fishing expeditions" by government authorities and evade the right against unreasonable searches and seizures. The possibilities of abuse and misuse of the PRN,biometrics and computer technology are accentuated when we consider that the individual lacks control over what can be read or placed on his ID, much less verify the correctness of the data encoded. They threaten the very abuses that the Bill of Rights seeks to prevent. Excerpts from the concurring opinion of the Supreme Court justices:

Justice Romero, concur: So terrifying are the possibilities of a law such as Administrative Order No. 308 in making inroads into the private lives of the citizens, a virtual Big Brother looking over our shoulders, that it must, without delay, be slain upon sight" before our society turns totalitarian with each of us, amindless robot. Justice Vitug, concur: Administrative Order No. 308 appears to be so extensively drawn that could, indeed, allow unbridled options to become available to it implementers beyond the reasonable comfort of the citizens and of residents alike. RIGHT TO PRIVACY RECOGNIZED UNDER THE CONSTITUTION Hereunder are the provisions in the 1987 Constitution which recognize our Right to Privacy: Section 3(1) of the Bill of Rights: "Sec. 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety ororder requires otherwise as prescribed by law." Other facets of the right to privacy are protected in various provisions of the Bill of Rights, viz: 34 "Sec. 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws. Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. xxx xxx xxx Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided bylaw. xxx xxx xxx. Sec.8. The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged. Sec.17. No person shall be compelled to be a witness against himself. Personal Analysis: A.O. 308 was declared unconstitutional by the Supreme Court en banc for reasons above stated. It bears stressing that the bulk of discussion in the case focused more on the issue of

infringement of the right to privacy. As can be gleaned from A.O. 308, the provisions were so general that there were no clear and vital guidelines to safeguard the information stored in the Identification Card. Had President Fidel V. Ramos issued a more complete and detailed guidelines providing for the metes and bounds of the ID System, the decision could have been otherwise. Even the argument of the respondents that rules and regulations would be issued by the committee later, the court still rejects the same. The court said: The rules and regulations to be drawn by the IACC cannot remedy this fatal defect. Rules and regulations merely implement the policy of the law or order. On its face, A.O. No. 308 gives the Inter-Agency Coordinating Committee (IACC) virtually unfettered discretion to determine the metes and bounds of the ID System. In one press conference last month, Presidential Spokesperson Ignacio Bunye said that there is really no need to pass a law to push through with the plan of the National ID System. An executive issuance by the President would suffice provided this time the said order will now be detailed, comprehensive and contains all the vital safeguards. From his statement, it can be deduced therefrom that the reservation and backlash by the supreme court on the on the Ople case (A.O 308) have been taken into consideration by Malacanang.

UMIL v. RAMOS [GR 81567, 9 July 1990] Facts: On 1 February 1988, the Regional Intelligence Operations Unit of the Capital Command (RIOU-CAPCOM) received confidential information about a member of the NPA Sparrow Unit (liquidation squad) being treated for a gunshot wound at the St. Agnes Hospital in Roosevelt Avenue, Quezon City. Upon verification, it was found that the wounded person, who was listed in the hospital records as Ronnie Javelon, is actually Rolando Dural, a member of the NPA liquidation squad, responsible for the killing of 2 CAPCOM soldiers the day before, or on 31 January 1988, in Macanining Street, Bagong Barrio, Caloocan City. In view of this verification, Dural was transferred to the Regional Medical Services of the CAPCOM, for security reasons. While confined thereat, or on 4 February 1988, Dural was positively identified by eyewitnesses as the gunman who went on top of the hood of the CAPCOM mobile patrol car, and fired at the 2 CAPCOM soldiers seated inside the car identified as T/Sgt. Carlos Pabon and CIC Renato Manligot. As a consequence of this positive identification, Dural was referred to the Caloocan City Fiscal who conducted an inquest and thereafter filed with the Regional Trial Court of Caloocan City an information charging Rolando Dural alias Ronnie Javelon with the crime of Double Murder with Assault Upon Agents of Persons in Authority. (Criminal Case C-30112; no bail recommended). On 15 February 1988, the information was amended to include, as defendant, Bernardo Itucal, Jr. who, at the filing of the original information, was still unidentified. Meanwhile, on 6 February 1988, a petition for habeas corpus was filed with the Supreme Court on behalf of Roberto Umil, Rolando Dural, and Renato Villanueva. The Court issued the writ of habeas corpus on 9 February 1988 and Fidel V. Ramos, Maj. Gen. Renato de Villa, Brig. Gen. Ramon Montano, and Brig. Gen. Alexander Aguirre filed a Return of the Writ on 12 February 1988. Thereafter, the parties were heard on 15 February 1988. On 26 February 1988, however, Umil and Villanueva posted bail before the Regional Trial Court of Pasay City where charges for violation of the Anti-Subversion Act had been filed against them, and they were accordingly released. Issue: Whether Dural can be validly arrested without any warrant of arrest for the crime of rebellion.

Held: Dural, it clearly appears that he was not arrested while in the act of shooting the 2 CAPCOM soldiers nor was he arrested just after the commission of the said offense for his arrest came a day after the said shooting incident. Seemingly, his arrest without warrant is unjustified. However, Dural was arrested for being a member of the New Peoples Army (NPA), an outlawed subversive organization. Subversion being a continuing offense, the arrest of Rolando Dural without warrant is justified as it can be said that he was committing an offense when arrested. The crimes of rebellion, subversion, conspiracy or proposal to commit such crimes, and crimes or offenses committed in furtherance thereof or in connection therewith constitute direct assaults against the State and are in the nature of continuing crimes. The arrest of persons involved in the rebellion whether as its fighting armed elements, or for committing non-violent acts but in furtherance of the rebellion, is more an act of capturing them in the course of an armed conflict, to quell the rebellion, than for the purpose of immediately prosecuting them in court for a statutory offense. The arrest, therefore, need not follow the usual procedure in the prosecution of offenses which requires the determination by a judge of the existence of probable cause before the issuance of a judicial warrant of arrest and the granting of bail if the offense is bailable. Obviously, the absence of a judicial warrant is no legal impediment to arresting or capturing persons committing overt acts of violence against government forces, or any other milder acts but equally in pursuance of the rebellious movement. The arrest or capture is thus impelled by the exigencies of the situation that involves the very survival of society and its government and duly constituted authorities.

GO v CA (PELAYO) 206 SCRA 138 FELICIANO; February 11, 1992

6. Prosecutor filed a MOTION FOR LEAVE TO CONDUCT PRELIMINARY INVESTIGATION and prayed that the court proceedings be suspended momentarily. 7. The trial court granted LEAVE to conduct preliminary investigation and cancelled the arraignment scheduled on August 15, 1991. - July 19, 1991: 8. Go contended through a PETITION FOR CERTIORARI, PROHIBITION AND MANDAMUS that the information was null and void because no preliminary investigation had been conducted. - July 23, 1991 Go surrendered to the police and the judge set the arraignment on August 23. - August 23, 1991: 9. Respondent judge issued a commitment order for Go. Upon arraignment, a plea of not guilty was entered because Go refused to enter a plea. 10. Go filed a PETITION FOR HABEAS CORPUS and the CA issued the writ. The petition for habeas corpus was consolidated with the petition for certiorari, prohibition and mandamus. - September 19, 1991 The trial started and the prosecution presented its first witness. This was followed by three more witnesses on October 3, 1991. - September 23, 1991 The CA dismissed the petition for habeas corpus and the petition for certiorari, prohibition and mandamus on the following grounds, among others: a) Validity of the warrantless arrest because the crime had been freshly committed. He was positively identified by the witness and his identity had been established when he came to the police station. b) Waiver of the right to preliminary investigation when he did not invoke it properly and waiver of any irregularity in his arrest when accused posted bail. c) Validity of the information against the accused precluded the grant of the petition for habeas corpus Petitioners Claim: Go contends that the crime had not been just committed because of the 6-day disparity. - None of the police officers who arrested him had any personal knowledge of the crime. Respondents Comments: Go had been validly arrested because the crime had been committed 6 days before he was arrested. - Invoking Umali vs. Ramos where the Court upheld that a warrantless arrest was valid 14 days after the crime was committed. - The prosecutor proceeded under the erroneous supposition that Section 7 of Rule 112 was applicable and required petitioner to waive the provisions of Article 125 of the Revised Penal Code as a condition for carrying out a preliminary investigation. Go was entitled to a preliminary investigation and that right should have been accorded him without any conditions.

FACTS

- July 2, 1991 Eldon Maguan entered a one-way street (Wilson St.) from the opposite direction (counterflow), heading towards P. Guevarra St. In so doing, he nearly collided with the car of accused Rolito Go. Go got out of his car and shot Maguan. - A security guard of a nearby bake shop witnessed the event and was able to note the plate number of the petitioner. The car was eventually traced to an Elisa Ang Go, wife of the accused. - The police were informed that the petitioner had a meal at the bake shop where his credit card was used to pay for the transaction. Police were able to identify the card owner as the accused Go and when his picture was shown to the security guard who positively identified him as the supposed assailant. Police then launched a manhunt for Go. - July 8, 1991 Go presented himself in the San Juan police station with his two lawyers in tow to verify reports that he was being hunted down by the police. 1. The police detained Go and a COMPLAINT for FRUSTRATED HOMICIDE was filed against him. 2. Asst. Prov. Prosecutor Villa Ignacio informed Go, in the presence of his lawyers, of his right to avail of preliminary investigation but in so doing, Go had to waive the provisions in Art. 125, RPC. Go refused. - July 9, 1991 Maguan died as a result of his gunshot wounds before an INFORMATION could be filed. - July 11, 1991: 3. The prosecutor filed an INFORMATION for murder, instead of an information for frustrated homicide. The prosecutor stated that no preliminary investigation was conducted because Go refused to waive provisions of Art. 125, RPC. 4. Gos counsel filed an OMNIBUS MOTION FOR IMMEDIATE RELEASE AND PROPER PRELIMINARY INVESTIGATION with the allegations that an illegal warrantless arrest had been effected and that no preliminary investigation had been conducted and prayed that Go be released on bail. - July 12, 1991: 5. Go filed an urgent EX-PARTE MOTION FOR SPECIAL RAFFLE in order to expedite action on the bail recommendation. The cash bond was approved and Go was released from jail. - July 16, 1991:

ISSUES 1. WON the warrantless arrest was lawful 2. WON the accused Go had waived his right to preliminary investigation

and consider it as a waiver based simply on the contention of the SolGen that the motion should have been filed with the trial court and not the prosecutor. - According to Crespo vs. Mogul: The preliminary investigation conducted by the fiscal for the purpose of determining whether a prima facie case exists warranting the prosecution of the accused is terminated upon the filing of the information in the proper court. Should the fiscal find it proper to conduct a reinvestigation of the case, at such stage, the permission of the Court must be secured. After such reinvestigation the finding and recommendations of the fiscal should be submitted to the Court for appropriate action. - However, in the case at bar, Gos omnibus motion asked for a PRELIMINARY INVESTIGATION not REINVESTIGATION as discussed in Crespo vs. Mogul. The Prosecutor also filed a MOTION for LEAVE TO CONDUCT PRELIMINARY INVESTIGATION so the omnibus motion of Go was, in effect, filed in the trial court. Go did ask for a preliminary investigation on the very day that the information was filed without such preliminary investigation, and that the trial court was 5 days later apprised of the desire of the petitioner for such preliminary investigation. - There was no waiver of the right to preliminary investigation because Go had vigorously insisted on his right to preliminary investigation before his arraignment. At the time of his arraignment, petitioner was already before the Court of Appeals on certiorari, prohibition and mandamus precisely asking for a preliminary investigation before being forced to stand trial. - Gos act of posting bail cannot be deemed to be a waiver of his right to preliminary investigation. Go asked for release on recognizance or on bail and for preliminary investigation in one omnibus motion. He had thus claimed his right to preliminary investigation before respondent Judge approved the cash bond posted by petitioner and ordered his release. Obiter - However, contrary to petitioner's contention, the failure to accord preliminary investigation, while constituting a denial of the appropriate and full measure of the statutory process of criminal justice, did not impair the validity of the information for murder nor affect the jurisdiction of the trial court. - In the case at bar, a trial for merits had already commenced and the prosecution had already presented 4 witnesses. > This, however, still entitles the accused to preliminary investigation. Trial on the merits should be suspended or held in abeyance and a preliminary investigation should accorded to petitioner, even if eventually, the prosecutor may or may not find probable cause. The point is that Go was not accorded his proper rights. > As for bail, Go is still entitled to be released on bail as a matter of right. Should the evidence against the accused be strong, the bail can then be cancelled. > To hold that the rights of Go were obliterated by the presentation of evidence in the proceedings in the trial court would be to legitimize the deprivation of due process.

HELD 1. NO, the warrantless arrest was not lawful Ratio Rule 112, Sec. 7 states that a complaint for information can be filed sans preliminary investigation when a person has been lawfully arrested without a warrant except than an affidavit should be executed by the person who was responsible for the arrest. But the person arrested can ask for preliminary investigation by the proper officer before the complaint or information can be filed. In this case, the person arrested must waive the provisions of A125, RPC with the assistance of counsel (a lawyer or another person of his choice if a lawyer is not available). He may also apply for bail despite the waiver and the investigation must terminate within 15 days. Reasoning - Umil vs. Ramos only applies to continuing crimes so it does not apply in the case at bar. Murder is not a continuing crime because it happens in one place at a particular point in time and ends there as well. - The warrantless arrest does not follow the requisites in Rule 113, Sec. 5 because: >The arrest took place 6 days after Maguan was shot whereas the RoC provide that the crime should have been just committed, is about to be committed or is being committed. >None of the arresting officers had personal knowledge of the facts indicating that Go was the gunman as required in the RoC. The information that the police had was derived from eyewitness accounts. - When Go walked into the police station 6 days after Maguan was shot, he did not surrender (so as not to imply that he committed the crime) nor was he arrested but he placed himself in the disposal of the police authorities. 2. NO, Go had not waived his right to preliminary investigation. Ratio The rule is that the right to preliminary investigation is waived when the accused fails to invoke it before or at the time of entering a plea at arraignment. Reasoning - The right to have a preliminary investigation conducted before being bound over to trial for a criminal offense and hence formally at risk of incarceration or some other penalty, is not a mere formal or technical right; it is a substantive right. - The nature of the crime demanded that a preliminary investigation be conducted. Go did ask for a preliminary investigation from the start. On the day the information for murder was filed, he also filed an OMNIBUS MOTION for IMMEDIATE RELEASE and PRELIMINARY INVESTIGATION. The Court is not ready to ignore that act by Go

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 170180 November 23, 2007

Bautista, was ordered by Mercado to open his bag. Petitioners bag allegedly contained a pair of denim pants, eighteen pieces of eggplant and dried marijuana leaves wrapped in newspaper and cellophane. It was then that petitioner was taken to the police station for further investigation.9 Aratas and Ordoo corroborated Bautistas testimony on most ma terial points. On crossexamination, however, Aratas admitted that he himself brought out the contents of petitioners bag before petitioner was taken to the house of Mercado. 10 Nonetheless, he claimed that at Mercados house, it was petitioner himself who brought out the contents of his bag upon orders from Mercado. For his part, Ordoo testified that it was he who was ordered by Mercado to open petitioners bag and that it was then that they saw the purported contents thereof.11 The prosecution likewise presented Police Inspector Valeriano Laya II (Laya), the forensic chemist who conducted the examination of the marijuana allegedly confiscated from petitioner. Laya maintained that the specimen submitted to him for analysis, a sachet of the substance weighing 23.10 grams and contained in a plastic bag, tested positive of marijuana. He disclosed on cross-examination, however, that he had knowledge neither of how the marijuana was taken from petitioner nor of how the said substance reached the police officers. Moreover, he could not identify whose marking was on the inside of the cellophane wrapping the marijuana leaves. 12 The charges were denied by petitioner. As the defenses sole witness, he testified that at around 8:30 p.m. on 17 March 2003, he arrived in Aringay from his place in Curro-oy, Santol, La Union. After alighting from the bus, petitioner claimed that he went to the house of a friend to drink water and then proceeded to walk to his brothers house. As he was walking, prosecution witness Ordoo, a cousin of his brothers wife, allegedly approached him and asked where he was going. Petitioner replied that he was going to his brothers house. Ordoo then purportedly requested to see the contents of his bag and appellant acceded. It was at this point that Bautista and Aratas joined them. After inspecting all the contents of his bag, petitioner testified that he was restrained by the tanod and taken to the house of Mercado. It was Aratas who carried the bag until they reached their destination.13 Petitioner maintained that at Mercados house, his bag was opened by the tanod and Mercado himself. They took out an item wrapped in newspaper, which later turned out to be marijuana leaves. Petitioner denied ownership thereof. He claimed to have been threatened with imprisonment by his arrestors if he did not give the prohibited drugs to someone from the east in order for them to apprehend such person. As petitioner declined, he was brought to the police station and charged with the instant offense. Although petitioner divulged that it was he who opened and took out the contents of his bag at his friends house, he averred that it was one of the tanod who did so at Mercados house and that it was only there that they saw the marijuana for the first time. 14 e. replied that he was going to his brother'en proceeded to walk to his brother'w Finding that the prosecution had proven petitioners guilt beyond reasonable doubt, the RTC rendered judgment against him and sentenced him to suffer indeterminate imprisonment ranging from eight (8) years and one (1) day of prision mayor medium as minimum to fifteen (15) years of reclusion temporal medium as maximum and ordered him to pay a fine of P350,000.00.15 Aggrieved, petitioner appealed the decision of the RTC to the Court of Appeals. 1wphi1 On 28 July 2005, the appellate court affirmed the challenged decision. The Court of Appeals, finding no cogent reason to overturn the presumption of regularity in favor of the barangay tanod in the absence of evidence of ill-motive on their part, agreed with the trial court that there was probable cause to arrest petitioner. It observed further:

ARSENIO VERGARA VALDEZ, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. DECISION TINGA, J.: The sacred right against an arrest, search or seizure without valid warrant is not only ancient. It is also zealously safeguarded. The Constitution guarantees the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures.1 Any evidence obtained in violation of said right shall be inadmissible for any purpose in any proceeding. Indeed, while the power to search and seize may at times be necessary to the public welfare, still it must be exercised and the law implemented without contravening the constitutional rights of the citizens, for the enforcement of no statute is of sufficient importance to justify indifference to the basic principles of government.2 On appeal is the Decision3 of the Court of Appeals dated 28 July 2005, affirming the Judgment4 of the Regional Trial Court (RTC), Branch 31, Agoo, La Union dated 31 March 2004 finding petitioner Arsenio Vergara Valdez guilty beyond reasonable doubt of violating Section 11 of Republic Act No. 9165 (R.A. No. 9165) 5 and sentencing him to suffer the penalty of imprisonment ranging from eight (8) years and one (1) day of prision mayor medium as minimum to fifteen (15) years of reclusion temporal medium as maximum and ordering him to pay a fine of P350,000.00.6 I. On 26 June 2003, petitioner was charged with violation of Section 11, par. 2(2) of R.A. No. 9165 in an Information7 which reads: That on or about the 17th day of March 2003, in the Municipality of Aringay, Province of La Union, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously have in his possession, control and custody dried marijuana leaves wrapped in a cellophane and newspaper page, weighing more or less twenty-five (25) grams, without first securing the necessary permit, license or prescription from the proper government agency. CONTRARY TO LAW.8 On arraignment, petitioner pleaded not guilty. Thereafter, trial on the merits ensued with the prosecution presenting the three (3) barangay tanods of San Benito Norte, Aringay, La Union namely, Rogelio Bautista (Bautista), Nestor Aratas (Aratas) and Eduardo Ordoo (Ordoo), who arrested petitioner. Bautista testified that at around 8:00 to 8:30 p.m. of 17 March 2003, he was conducting the routine patrol along the National Highway in Barangay San Benito Norte, Aringay, La Union together with Aratas and Ordoo when they noticed petitioner, lugging a bag, alight from a mini-bus. The tanods observed that petitioner, who appeared suspicious to them, seemed to be looking for something. They thus approached him but the latter purportedly attempted to run away. They chased him, put him under arrest and thereafter brought him to the house of Barangay Captain Orencio Mercado (Mercado) where he, as averred by

That the prosecution failed to establish the chain of custody of the seized marijuana is of no moment. Such circumstance finds prominence only when the existence of the seized prohibited drugs is denied. In this case, accused-appellant himself testified that the marijuana wrapped in a newspaper was taken from his bag. The corpus delicti of the crime, i.e.[,] the existence of the marijuana and his possession thereof, was amply proven by accused-appellant Valdezs own testimony.16 In this appeal, petitioner prays for his acquittal and asserts that his guilt of the crime charged had not been proven beyond reasonable doubt. He argues, albeit for the first time on appeal, that the warrantless arrest effected against him by the barangay tanod was unlawful and that the warrantless search of his bag that followed was likewise contrary to law. Consequently, he maintains, the marijuana leaves purportedly seized from him are inadmissible in evidence for being the fruit of a poisonous tree. Well-settled is the rule that the findings of the trial court on the credibility of witnesses and their testimonies are accorded great respect and weight, in the absence of any clear showing that some facts and circumstances of weight or substance which could have affected the result of the case have been overlooked, misunderstood or misapplied. 17 After meticulous examination of the records and evidence on hand, however, the Court finds and so holds that a reversal of the decision a quo under review is in order. II. At the outset, we observe that nowhere in the records can we find any objection by petitioner to the irregularity of his arrest before his arraignment. Considering this and his active participation in the trial of the case, jurisprudence dictates that petitioner is deemed to have submitted to the jurisdiction of the trial court, thereby curing any defect in his arrest. The legality of an arrest affects only the jurisdiction of the court over his person. 18 Petitioners warrantless arrest therefore cannot, in itself, be the basis of his acquittal. However, to determine the admissibility of the seized drugs in evidence, it is indispensable to ascertain whether or not the search which yielded the alleged contraband was lawful. The search, conducted as it was without a warrant, is justified only if it were incidental to a lawful arrest.19 Evaluating the evidence on record in its totality, as earlier intimated, the reasonable conclusion is that the arrest of petitioner without a warrant is not lawful as well. Petitioner maintains, in a nutshell, that after he was approached by the tanod and asked to show the contents of his bag, he was simply herded without explanation and taken to the house of the barangay captain. On their way there, it was Aratas who carried his bag. He denies ownership over the contraband allegedly found in his bag and asserts that he saw it for the first time at the barangay captains house. Even casting aside petitioners version and basing the resolution of this case on the general thrust of the prosecution evidence, the unlawfulness of petitioners arrest stands out just the same. Section 5, Rule 113 of the Rules on Criminal Procedure provides the only occasions on which a person may be arrested without a warrant, to wit: Section 5. Arrest without warrant; when lawful. A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. xxx It is obvious that based on the testimonies of the arresting barangay tanod, not one of these circumstances was obtaining at the time petitioner was arrested. By their own admission, petitioner was not committing an offense at the time he alighted from the bus, nor did he appear to be then committing an offense. 20 The tanod did not have probable cause either to justify petitioners warrantless arrest. For the exception in Section 5(a), Rule 113 to operate, this Court has ruled that two (2) elements must be present: (1) the person to be arrested must execute an overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime; and (2) such overt act is done in the presence or within the view of the arresting officer.21 Here, petitioners act of looking around after getting off the bus was but natural as he was finding his way to his destination. That he purportedly attempted to run away as the tanod approached him is irrelevant and cannot by itself be construed as adequate to charge the tanod with personal knowledge that petitioner had just engaged in, was actually engaging in or was attempting to engage in criminal activity. More importantly, petitioner testified that he did not run away but in fact spoke with the barangay tanod when they approached him. Even taking the prosecutions version generally as the truth, in line with our assumption from the start, the conclusion will not be any different. It is not unreasonable to expect that petitioner, walking the street at night, after being closely observed and then later tailed by three unknown persons, would attempt to flee at their approach. Flight per se is not synonymous with guilt and must not always be attributed to ones conscious ness of guilt.22 Of persuasion was the Michigan Supreme Court when it ruled in People v. Shabaz 23 that "[f]light alone is not a reliable indicator of guilt without other circumstances because flight alone is inherently ambiguous." Alone, and under the circumstances of this case, petitioners flight lends itself just as easily to an innocent explanation as it does to a nefarious one. Moreover, as we pointed out in People v. Tudtud,24 "[t]he phrase in his presence therein, connot[es] penal knowledge on the part of the arresting officer. The right of the accused to be secure against any unreasonable searches on and seizure of his own body and any deprivation of his liberty being a most basic and fundamental one, the statute or rule that allows exception to the requirement of a warrant of arrest is strictly construed. Its application cannot be extended beyond the cases specifically provided by law." 25 Indeed, the supposed acts of petitioner, even assuming that they appeared dubious, cannot be viewed as sufficient to incite suspicion of criminal activity enough to validate his warrantless arrest.26 If at all, the search most permissible for the tanod to conduct under the prevailing backdrop of the case was a stop-and-frisk to allay any suspicion they have been harboring based on petitioners behavior. However, a stop-and-frisk situation, following Terry v. Ohio,27 must precede a warrantless arrest, be limited to the persons outer clothing, and should be grounded upon a genuine reason, in light of the police officers experience and surrounding conditions, to warrant the belief that the person detained has weapons concealed about him.28 Accordingly, petitioners waiver of his right to question his arrest notwithstanding, the marijuana leaves allegedly taken during the search cannot be admitted in evidence against him as they were seized during a warrantless search which was not lawful.29 As we pronounced in People v. Bacla-an

A waiver of an illegal warrantless arrest does not also mean a waiver of the inadmissibility of evidence seized during an illegal warrantless arrest. The following searches and seizures are deemed permissible by jurisprudence: (1) search of moving vehicles (2) seizure in plain view (3) customs searches (4) waiver or consent searches (5) stop and frisk situations (Terry Search) and (6) search incidental to a lawful arrest. The last includes a valid warrantless search and seizure pursuant to an equally valid warrantless arrest, for, while as a rule, an arrest is considered legitimate if effected with a valid warrant of arrest, the Rules of Court recognize permissible warrantless arrests, to wit: (1) arrests in flagrante delicto, (2) arrests effected in hot pursuit, and, (3) arrests of escaped prisoners. 30 When petitioner was arrested without a warrant, he was neither caught in flagrante delicto committing a crime nor was the arrest effected in hot pursuit. Verily, it cannot therefore be reasonably argued that the warrantless search conducted on petitioner was incidental to a lawful arrest. In its Comment, the Office of the Solicitor General posits that apart from the warrantless search being incidental to his lawful arrest, petitioner had consented to the search. We are not convinced. As we explained in Caballes v. Court of Appeals 31 Doubtless, the constitutional immunity against unreasonable searches and seizures is a personal right which may be waived. The consent must be voluntary in order to validate an otherwise illegal detention and search, i.e., the consent is unequivocal, specific, and intelligently given, uncontaminated by any duress or coercion. Hence, consent to a search is not to be lightly inferred, but must be shown by clear and convincing evidence. The question whether a consent to a search was in fact voluntary is a question of fact to be determined from the totality of all the circumstances. Relevant to this determination are the following characteristics of the person giving consent and the environment in which consent is given: (1) the age of the defendant; (2) whether he was in a public or secluded location; (3) whether he objected to the search or passively looked on; (4) the education and intelligence of the defendant; (5) the presence of coercive police procedures; (6) the defendant's belief that no incriminating evidence will be found; (7) the nature of the police questioning; (8) the environment in which the questioning took place; and (9) the possibly vulnerable subjective state of the person consenting. It is the State which has the burden of proving, by clear and positive testimony, that the necessary consent was obtained and that it was freely and voluntarily given.32 In the case at bar, following the theory of the prosecution albeit based on conflicting testimonies on when petitioners bag w as actually opened, it is apparent that petitioner was already under the coercive control of the public officials who had custody of him when the search of his bag was demanded. Moreover, the prosecution failed to prove any specific statement as to how the consent was asked and how it was given, nor the specific words spoken by petitioner indicating his alleged "consent." Even granting that petitioner admitted to opening his bag when Ordoo asked to see its contents, his implied acquiescence, if at all, could not have been more than mere passive conformity given under coercive or intimidating circumstances and hence, is considered no consent at all within the contemplation of the constitutional guarantee. 33 As a result, petitioners lack of objection to the search and seizure is not tantamount to a waiver of his constitutional right or a voluntary submission to the warrantless search and seizure. 34 III. Notably, the inadmissibility in evidence of the seized marijuana leaves for being the fruit of an unlawful search is not the lone cause that militates against the case of the prosecution. We likewise find that it has failed to convincingly establish the identity of the marijuana leaves purportedly taken from petitioners bag.

In all prosecutions for violation of the Dangerous Drugs Act, the following elements must concur: (1) proof that the transaction took place; and (2) presentation in court of the corpus delicti or the illicit drug as evidence. 35 The existence of dangerous drugs is a condition sine qua non for conviction for the illegal sale of dangerous drugs, it being the very corpus delicti of the crime.36 In a line of cases, we have ruled as fatal to the prosecutions case its failure to prove that the specimen submitted for laboratory examination was the same one allegedly seized from the accused.37 There can be no crime of illegal possession of a prohibited drug when nagging doubts persist on whether the item confiscated was the same specimen examined and established to be the prohibited drug. 38 As we discussed in People v. Orteza39 , where we deemed the prosecution to have failed in establishing all the elements necessary for conviction of appellant for illegal sale of shabu First, there appears nothing in the record showing that police officers complied with the proper procedure in the custody of seized drugs as specified in People v. Lim, i.e., any apprehending team having initial control of said drugs and/or paraphernalia should, immediately after seizure or confiscation, have the same physically inventoried and photographed in the presence of the accused, if there be any, and or his representative, who shall be required to sign the copies of the inventory and be given a copy thereof. The failure of the agents to comply with the requirement raises doubt whether what was submitted for laboratory examination and presented in court was actually recovered from appellant. It negates the presumption that official duties have been regularly performed by the police officers. In People v. Laxa, where the buy-bust team failed to mark the confiscated marijuana immediately after the apprehension of the accused, the Court held that the deviation from the standard procedure in anti-narcotics operations produced doubts as to the origins of the marijuana. Consequently, the Court concluded that the prosecution failed to establish the identity of the corpus delicti. The Court made a similar ruling in People v. Kimura, where the Narcom operatives failed to place markings on the seized marijuana at the time the accused was arrested and to observe the procedure and take custody of the drug. More recently, in Zarraga v. People, the Court held that the material inconsistencies with regard to when and where the markings on the shabu were made and the lack of inventory on the seized drugs created reasonable doubt as to the identity of the corpus delicti. The Court thus acquitted the accused due to the prosecutions failure to indubitably show the identity of the shabu. In the case at bar, after the arrest of petitioner by the barangay tanod, the records only show that he was taken to the house of the barangay captain and thereafter to the police station. The Joint Affidavit40 executed by the tanod merely states that they confiscated the marijuana leaves which they brought to the police station together with petitioner. Likewise, the Receipt41 issued by the Aringay Police Station merely acknowledged receipt of the suspected drugs supposedly confiscated from petitioner. Not only did the three tanod contradict each other on the matter of when petitioners bag was opened, they also gave conflicting testimony on who actually opened the same. The prosecution, despite these material inconsistencies, neglected to explain the discrepancies. Even more damning to its cause was the admission by Laya, the forensic chemist, that he did not know how the specimen was taken from petitioner, how it reached the police authorities or whose marking was on the cellophane wrapping of the marijuana. The non-presentation, without justifiable reason, of the police officers who conducted the inquest proceedings and marked the seized drugs, if such was the case, is fatal to the case. Plainly, the prosecution neglected to establish the crucial link in the chain of custody

of the seized marijuana leaves from the time they were first allegedly discovered until they were brought for examination by Laya. The Court of Appeals found as irrelevant the failure of the prosecution to establish the chain of custody over the seized marijuana as such "[f]inds prominence only when the existence of the seized prohibited drug is denied." 42 We cannot agree. To buttress its ratiocination, the appellate court narrowed on petitioners testimony that the marijuana was taken from his bag, without taking the statement in full context. 43 Contrary to the Court of Appeals findings, although petitioner testified that the marijuana was taken from his bag, he consistently denied ownership thereof. 44 Furthermore, it defies logic to require a denial of ownership of the seized drugs before the principle of chain of custody comes into play. The onus of proving culpability in criminal indictment falls upon the State. In conjunction with this, law enforcers and public officers alike have the corollary duty to preserve the chain of custody over the seized drugs. The chain of evidence is constructed by proper exhibit handling, storage, labeling and recording, and must exist from the time the evidence is found until the time it is offered in evidence. Each person who takes possession of the specimen is duty-bound to detail how it was cared for, safeguarded and preserved while in his or her control to prevent alteration or replacement while in custody. This guarantee of the integrity of the evidence to be used against an accused goes to the very heart of his fundamental rights. The presumption of regularity in the performance of official duty invoked by the prosecution and relied upon by the courts a quo cannot by itself overcome the presumption of innocence nor constitute proof of guilt beyond reasonable doubt. 45 Among the constitutional rights enjoyed by an accused, the most primordial yet often disregarded is the presumption of innocence. This elementary principle accords every accused the right to be presumed innocent until the contrary is proven beyond reasonable doubt. Thus, the burden of proving the guilt of the accused rests upon the prosecution. Concededly, the evidence of the defense is weak and uncorroborated. Nevertheless, this "[c]annot be used to advance the cause of the prosecution as its evidence must stand or fall on its own weight and cannot be allowed to draw strength from the weakness of the defense."46 Moreover, where the circumstances are shown to yield two or more inferences, one inconsistent with the presumption of innocence and the other compatible with the finding of guilt, the court must acquit the accused for the reason that the evidence does not satisfy the test of moral certainty and is inadequate to support a judgment of conviction. 47 Drug addiction has been invariably denounced as "an especially vicious crime," 48 and "one of the most pernicious evils that has ever crept into our society," 49 for those who become addicted to it "not only slide into the ranks of the living dead, what is worse, they become a grave menace to the safety of law-abiding members of society,"50 whereas "peddlers of drugs are actually agents of destruction."51 Indeed, the havoc created by the ruinous effects of prohibited drugs on the moral fiber of society cannot be underscored enough. However, in the rightfully vigorous campaign of the government to eradicate the hazards of drug use and drug trafficking, it cannot be permitted to run roughshod over an accuseds right to be presumed innocent until proven to the contrary and neither can it shirk from its corollary obligation to establish such guilt beyond reasonable doubt. In this case, the totality of the evidence presented utterly fails to overcome the presumption of innocence which petitioner enjoys. The failure of the prosecution to prove all the elements of the offense beyond reasonable doubt must perforce result in petitioners exoneration from criminal liability.

IV. A final word. We find it fitting to take this occasion to remind the courts to exercise the highest degree of diligence and prudence in deliberating upon the guilt of accused persons brought before them, especially in light of the fundamental rights at stake. Here, we note that the courts a quo neglected to give more serious consideration to certain material issues in the determination of the merits of the case. We are not oblivious to the fact that in some instances, law enforcers resort to the practice of planting evidence to extract information or even harass civilians. Accordingly, courts are duty-bound to be "[e]xtra vigilant in trying drug cases lest an innocent person be made to suffer the unusually severe penalties for drug offenses."52 In the same vein, let this serve as an admonition to police officers and public officials alike to perform their mandated duties with commitment to the highest degree of diligence, righteousness and respect for the law. WHEREFORE, the assailed Decision is REVERSED and SET ASIDE. Petitioner Arsenio Vergara Valdez is ACQUITTED on reasonable doubt. The Director of the Bureau of Corrections is directed to cause the immediate release of petitioner, unless the latter is being lawfully held for another cause; and to inform the Court of the date of his release, or the reasons for his continued confinement, within ten (10) days from notice. No costs. SO ORDERED.

PEOPLE v. MARTI [GR 81561, 18 January 1991] FACTS: On 14 August 1987, Andre Marti and his common-law wife, Shirley Reyes, went to the booth of the Manila Packing and Export Forwarders in the Pistang Pilipino Complex, Ermita, Manila, carrying with them 4 gift-wrapped packages. Anita Reyes (the proprietress and no relation to Shirley Reyes) attended to them. Marti informed Anita Reyes that he was sending the packages to a friend in Zurich, Switzerland. Marti filled up the contract necessary for the transaction, writing therein his name, passport number, the date of shipment and the name and address of the consignee, namely, WALTER FIERZ, Mattacketr II, 8052 Zurich, Switzerland. Anita Reyes did not inspect the packages as Marti refused, who assured the former that the packages simply contained books, cigars, and gloves and were gifts to his friend in Zurich. In view of Martis representation, the 4 packages were then placed inside a brown corrugated box, with styrofoam placed at the bottom and on top of the packages, and sealed with masking tape. Before delivery of Martis box to the Bureau of Customs and/or Bureau of Posts, Mr. Job Reyes (proprietor) and husband of Anita (Reyes), following standard operating procedure, opened the boxes for final inspection, where a peculiar odor emitted therefrom. Job pulled out a cellophane wrapper protruding from the opening of one of the gloves, and took several grams of the contents thereof. Job Reyes forthwith prepared a letter reporting the shipment to the NBI and requesting a laboratory examination of the samples he extracted from the cellophane wrapper. At the Narcotics Section of the National Bureau of Investigation (NBI), the box containing Martis packages was opened, yielding dried marijuana leaves, or cake-like (bricks) dried marijuana leaves. The NBI agents made an inventory and took charge of the box and of the contents thereof, after signing a Receipt acknowledging custody of the said effects. Thereupon, the NBI agents tried to locate Marti but to no avail, inasmuch as the latters stated address was the Manila Central Post Office. Thereafter, an Information was filed against Marti for violation of RA 6425, otherwise known as the Dangerous Drugs Act. After trial, the Special Criminal Court of Manila (Regional Trial Court, Branch XLIX) rendered the decision, convicting Marti of violation of Section 21 (b), Article IV in relation to Section 4, Article 11 and Section 2 (e)(i), Article 1 of Republic Act 6425, as amended, otherwise known as the Dangerous Drugs Act. Marti appealed.

ISSUE: Whether an act of a private individual, allegedly in violation of the accuseds constitutional rights, be invoked against the State. HELD: In the absence of governmental interference, the liberties guaranteed by the Constitution cannot be invoked against the State. The contraband herein, having come into possession of the Government without the latter transgressing the accuseds rights against unreasonable search and seizure, the Court sees no cogent reason why the same should not be admitted against him in the prosecution of the offense charged. The mere presence of the NBI agents did not convert the reasonable search effected by Reyes into a warrantless search and seizure proscribed by the Constitution. Merely to observe and look at that which is in plain sight is not a search. Having observed that which is open, where no trespass has been committed in aid thereof, is not search. Where the contraband articles are identified without a trespass on the part of the arresting officer, there is not the search that is prohibited by the constitution. The constitutional proscription against unlawful searches and seizures therefore applies as a restraint directed only against the government and its agencies tasked with the enforcement of the law. Thus, it could only be invoked against the State to whom the restraint against arbitrary and unreasonable exercise of power is imposed. If the search is made upon the request of law enforcers, a warrant must generally be first secured if it is to pass the test of constitutionality. However, if the search is made at the behest or initiative of the proprietor of a private establishment for its own and private purposes, as in the case at bar, and without the intervention of police authorities, the right against unreasonable search and seizure cannot be invoked for only the act of private individual, not the law enforcers, is involved. In sum, the protection against unreasonable searches and seizures cannot be extended to acts committed by private individuals so as to bring it within the ambit of alleged unlawful intrusion by the government.

Near v Minnesota (06/01/31) Hughes, C.J. Facts: A Minnesota statute (Chap285, Session Laws 1925) provides for the abatement, as a public nuisance, of a "malicious, scandalous & defamatory newspaper, [702] magazine or other periodical. Participation in such business shall constitute a commission of such nuisance and render the participant liable & subject to the proceedings, orders & judgments provided for in the Act. Ownership, in whole or in part, directly or indirectly, of any such periodical, or of any stock or interest in any corporation or organization which owns the same in whole or in part, or which publishes the same, shall constitute such participation. In actions brought under above, there shall be available the defense that the truth was published with good motives & for justifiable ends & in such actions the plaintiff shall not have the right to report to issues or editions of periodicals taking place more than three months before the commencement of the action. The statute also provides that the County Atty, or any citizen of the county, may maintain an action in the district court of the county in the name of the State to enjoin perpetually the persons committing or maintaining any such nuisance from further committing or maintaining it. It was under this statue that the County Atty filed an action against Near (herein petitioner) for allegedly publishing & circulating a periodical that charged public & law enforcement officials, including the Mayor of Minneapolis, of inefficiency, gross neglect of duty & graft for failing to quell the city''s gangster problem. The articles made serious accusations against the public officers named & others in connection with the prevalence of crimes & the failure to expose & punish them. The District Court made findings of fact which followed the allegations of the complaint & found that the editions in question were "chiefly devoted to malicious, scandalous & defamatory articles" concerning the individuals named. The court further found that the defendants, through these publications, "did engage in the business of regularly & customarily producing, publishing & circulating a malicious, scandalous & defamatory newspaper," & that "the said publication" "under said name of The Saturday Press, or any other name, constitutes a public nuisance under the laws of the State." Judgment was thereupon entered adjudging that "the newspaper, magazine & periodical known as The Saturday Press," as a public nuisance, "is hereby abated. Near appealed to State supreme court, which upheld the decision. Near now appeals to the US SC. Petitioner (Near): - statute violates the due process clause of the 14th Amendment as it deprives him of liberty (his right to free speech & liberty of the press) & property (his publication) - District Court decision violates the due process clause of the 14th Amendment as it deprives him of any future livelihood (appellant sees the decision as a bar against his establishing any further business involving publication) Defendants: -insists that the questions of the application of the statute to appellant's periodical, &

of the construction of the judgment of the trial court, are not presented for review; that appellant's sole attack was upon the constitutionality of the statute, however it might be applied - that no question either of motive in the publication, or whether the decree goes beyond the direction of the statute, is before the court -the statute deals not with publication per se, but with the "business" of publishing defamation. -the constitutional freedom from previous restraint is lost because charges are made of derelictions which constitute crimes. - the publisher is is permitted to show, before injunction issues, that the matter published is true & is published with good motives & for justifiable ends -the statute is designed to prevent the circulation of scandal which tends to disturb the public peace & to provoke assaults & the commission of crime Issues: 1. w/n the statute is unconstitutional for being violative of the due process clause Held: YES To start, the SC notes that the liberty of the press is under the ambit of "liberty" which is guaranteed by the 14th Amendment. Gitlaw v NY, Whitney v California. In maintaining this guarantee, the State has the power to enact laws to promote the safety, health,morals & general welfare of the people, but this power is to be determined with appropriate regard to the particular subject of its exercise. Liberty of speech, & of the press, is also not an absolute right, & the State may punish its abuse. Whitney v. California. In the present instance, the inquiry is as to the historic conception of the liberty of the press & whether the statute under review violates the essential attributes of that liberty. In passing upon constitutional questions, the court has regard to substance, & not to mere matters of form, & that, in accordance with familiar principles, the statute must be tested by its operation & effect. Henderson v. Mayor. 1st The statute is not aimed at the redress of individual or private wrongs. Remedies for libel remain available & unaffected. The statute, said the state court, "is not directed at threatened libel, but at an existing business which, generally speaking, involves more than libel." It is alleged, & the statute requires the allegation, that the publication was "malicious." But, as in prosecutions for libel, there is no requirement of proof by the State of malice in fact, as distinguished from malice inferred from the mere publication of the defamatory matter. The judgment in this case proceeded upon the mere proof of publication. It is apparent that under the statute the publication is to be regarded as defamatory if it injures reputation, & scandalous if it circulates charges of reprehensible conduct, whether criminal or otherwise, & the publication is thus deemed to invite public reprobation & to constitute a public scandal. 2 nd The statute is directed not simply at the circulation of scandalous & defamatory statements with regard to private citizens, but at the continued publication by newspapers & periodicals of charges against

public officers of corruption, malfeasance in office, or serious neglect of duty. 3 rd The object of the statute is not punishment but suppression of the offending newspaper or periodical. The reason for the enactment is that prosecutions to enforce penal statutes for libel do not result in "efficient repression or suppression of the evils of scandal." Under this statute, a publisher of a newspaper or periodical, undertaking to conduct a campaign to expose & to censure official derelictions, & devoting his publication principally to that purpose, must face not simply the possibility of a verdict against him in a suit or prosecution for libel, but a determination that his newspaper or periodical is a public nuisance to be abated, & that this abatement & suppression will follow unless he is prepared with legal evidence to prove the truth of the charges & also to satisfy the court that, in addition to being true, the matter was published with good motives & for justifiable ends. 4th. The statute not only operates to suppress the offending newspaper or periodical, but to put the publisher under an effective censorship. Cutting through mere details of procedure, the operation & effect of the statute is that public authorities may bring the owner or publisher of a newspaper or periodical before a judge upon a charge of conducting a business of publishing scandalous & defamatory matter -- in particular, that the matter consists of charges against public officers of official dereliction -- &, unless the owner or publisher is able & disposed to bring competent evidence to satisfy the judge that the charges are true & are published with good motives & for justifiable ends, his newspaper or periodical is suppressed & further publication is made punishable as a contempt. This is of the essence of censorship. The question is whether a statute authorizing such proceedings in restraint of publication is consistent with the conception of the liberty of the press as historically conceived & guaranteed. In determining the extent of the constitutional protection, it has been generally if not universally, considered that it is the chief purpose of the guaranty to prevent previous restraints upon publication. This Court said, in Patterson v. Colorado, "the main purpose of such constitutional provisions is "to prevent all such previous restraints "upon publications as had been practiced by other governments," & they do not prevent the subsequent "punishment of such as may be deemed contrary to the public welfare.For whatever wrong the appellant has committed or may commit by his publications the State "appropriately affords both public & private redress by its libel laws. As has been noted, the statute in question "does not deal with punishments; it provides for no punishment, except in case of contempt for violation of the "court's order, but for suppression & injunction, that is, for restraint upon publication. The protection even as to "previous restraint is not absolutely unlimited. But the limitation has been recognized only in exceptional cases: "When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their "utterance will not be endured so long as men fight, & that no Court could regard them as protected by any "constitutional right." Schenck v. United States These limitations are not applicable here. Nor are we now concerned with "questions as to the extent of authority to prevent publications in order to protect private rights according to the "principles governing the exercise of the jurisdiction of courts of

equity. The fact that, for approximately one hundred & fifty years, there has been almost an entire absence of attempts to impose previous restraints upon publications relating to the malfeasance of public officers is significant of the deep-seated conviction that such restraints would violate constitutional right. Public officers, whose character & conduct remain open to debate & free discussion in the press, find their remedies for false accusations in actions under libel laws providing for redress & punishment, & not in proceedings to restrain the publication of newspapers & periodicals. re: defendant's contention that the statute deals not with publication per se, but with the "business" of publishing defamation: If the publisher has a constitutional right to publish, without previous restraint, an edition of his newspaper charging official derelictions, it cannot be denied that he may publish subsequent editions for the same purpose. re: the constitutional freedom from previous restraint is lost because charges are made of derelictions which constitute crimes: The freedom of the press from previous restraint has never been regarded as limited to such animadversions as lay outside the range of penal enactments. It is inconsistent with the reason which underlies the privilege, as the privilege so limited would be of slight value for the purposes for which it came to be established re:is permitted to show, before injunction issues, that the matter published is true & is published with good motives & for justifiable ends: If such a statute, authorizing suppression & injunction on such a basis, is constitutionally valid, it would be equally permissible for the legislature to provide that at any time the publisher of any newspaper could be brought before a court & required to produce proof of the truth of his publication, or of what he intended to publish, & of his motives, or stand enjoined. If this can be done, the legislature may provide machinery for determining in the complete exercise of its discretion what are justifiable ends, & restrain publication accordingly. It would be but a step to a complete system of censorship. re:the statute is designed to prevent the circulation of scandal which tends to disturb the public peace & to provoke assaults & the commission of crime: Charges of reprehensible conduct, & in particular of official malfeasance, unquestionably create a public scandal, but the theory of the constitutional guaranty is that even a more serious public evil would be caused by authority to prevent publication. As was said in New Yorker Staats-Zeitung v. Nolan,"If the township may prevent the circulation of a newspaper for no reason other than that some of its inhabitants may violently disagree with it, & resent its circulation by resorting to physical violence, there is no limit to what may be prohibited." The danger of violent reactions becomes greater with effective organization of defiant groups resenting exposure, & if this consideration warranted legislative interference with the initial freedom of publication, the constitutional protection would be reduced to a mere form of words.

New York Times vs. U.S. 403 U.S. 713 (1971) FACTS: In what became known as the "Pentagon Papers Case," the Nixon Administration attempted to prevent the New York Times and Washington Post from publishing materials belonging to a classified Defense Department study regarding the history of United States activities in Vietnam. The President argued that prior restraint was necessary to protect national security. This case was decided together with United States v. Washington Post Co. ISSUE: Did the Nixon administration's efforts to prevent the publication of what it termed "classified information" violate the First Amendment? YES RATIO: In its per curiam opinion the Court held that the government did not overcome the "heavy presumption against" prior restraint of the press in this case. Justices Black and Douglas argued that the vague word "security" should not be used "to abrogate the fundamental law embodied in the First Amendment." Justice Brennan reasoned that since publication would not cause an inevitable, direct, and immediate event imperiling the safety of American forces, prior restraint was unjustified. MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins, concurring. Madison proposed the First Amendment in three parts, one of which proclaimed: "The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable." The amendments were offered to curtail and restrict the general powers granted to the branches of govt. The Bill of Rights changed the original Constitution into a new charter under which no

branch of government could abridge the people's freedoms of press, speech, religion, and assembly. Solicitor General argues that the general powers of the Govt adopted in the original Constitution should be interpreted to limit and restrict the guarantees of the Bill of Rights. Both the history and language of the First Amendment support the view that the press must be left free to publish news, whatever the source, without censorship, injunctions, or prior restraints. First Amendment gave the free press the protection it must have to fulfill its role in our democracy. The press was to serve the governed, not the governors. Only a free and unrestrained press can effectively expose deception in govt. In revealing the workings of government that led to the Vietnam War, the newspapers nobly did precisely that which the Founders hoped and trusted they would do. The Solicitor General stated: " `no law' does not mean `no law', and I would seek to persuade the Court that is true. . . . [T]here are other parts of the Constitution that grant powers and responsibilities to the Executive, and . . . the First Amendment was not intended to make it impossible for the Executive to function or to protect the security of the United States." And the Government argues that in spite of the First Amendment, "[t]he authority of the Exec Dept to protect the nation against publication of information whose disclosure would endanger the national security stems from two interrelated sources: the constitutional power of the President over the conduct of foreign affairs and his authority as Commander-in-Chief." To find that the President has "inherent power" to halt the publication of news by resort to the courts would wipe out the First Amendment and destroy the fundamental liberty and security of the very people the Govt hopes to make "secure." The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic. The Framers of the First Amendment, fully aware of both the need to defend a new nation and the abuses of the English and Colonial governments, sought to give this new society strength and security by providing that freedom of speech, press, religion, and assembly should not be abridged.

MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK joins, concurring. There is no statute barring the publication by the press of the material which the Times and the Post seek to use. Title 18 U.S.C. 793 (e) provides that "[w]hoever having unauthorized possession of, access to, or control over any document, writing . . . or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates . . . the same to any person not entitled to receive it . . . [s]hall be fined not more than $10,000 or imprisoned not more than ten years, or both." The Government suggests that the word "communicates" is broad enough to encompass publication. There are eight sections in the chapter on espionage and censorship, 792-799. In three of those eight "publish" is specifically mentioned: 794 (b) applies to "Whoever, in time of war, with intent that the same shall be communicated to the enemy, collects, records, publishes, or communicates . . . [the disposition of armed forces]." Section 797 applies to whoever "reproduces, publishes, sells, or gives away" photographs of defense installations. Section 798 relating to cryptography applies to whoever: "communicates, furnishes, transmits, or otherwise makes available . . . or publishes" the described material. 2 (Emphasis added.) Thus it is apparent that Congress was capable of and did distinguish between publishing and communication in the various sections of the Espionage Act. The other evidence that 793 does not apply to the press is a rejected version of 793 which read: "During any national emergency resulting from a war to which the United States is a party, or from threat of such a war, the President may, by proclamation, declare the existence of such emergency and, by proclamation, prohibit the publishing or communicating of, or the attempting to publish or communicate any information relating to the national defense which, in his judgment, is of such character that it is or might be useful to the enemy.". During

the debates in the Senate the First Amendment was specifically cited and that provision was defeated. The Act of September 23, 1950, in amending 18 U.S.C. 793 states in 1 (b) that: "Nothing in this Act shall be construed to authorize, require, or establish military or civilian censorship or in any way to limit or infringe upon freedom of the press or of speech as guaranteed by the Constitution of the United States and no regulation shall be promulgated hereunder having that effect." So any power that the Government possesses must come from its "inherent power." The power to wage war stems from a declaration of war. The Constitution gives Congress power to declare War. Nowhere are presidential wars authorized. These disclosures 3 may have a serious impact. But that is no basis for sanctioning a previous restraint on the press. As stated by Chief Justice Hughes in Near v. Minnesota: "The fact that the liberty of the press may be abused by miscreant purveyors of scandal does not make any the less necessary the immunity of the press from previous restraint in dealing with official misconduct." Secrecy in government is fundamentally anti-democratic, perpetuating bureaucratic errors. Open debate and discussion of public issues are vital to our national health. On public questions there should be "uninhibited, robust, and wide-open" debate.

Ayer, et al vs. Capulong, et al (April 29, 1988) Facts: Petitioner Hal McElroy, an Australian film maker, and his movie production company, Ayer Productions, envisioned, for commercial viewing and for Philippine and international release, the historic peaceful struggle of the Filipinos at EDSA. The proposed motion picture entitled "The Four Day Revolution" was endorsed by the MTRCB as well as the other government agencies consulted. General Fidel Ramos also signified his approval of the intended film production. On 21 December 1987, private respondent Enrile replied that "[he] would not and will not approve of the use, appropriation, reproduction and/or exhibition of his name, or picture, or that of any member of his family in any cinema or television production, film or other medium for advertising or commercial exploitation" and further advised petitioners that 'in the production, airing, showing, distribution or exhibition of said or similar film, no reference whatsoever (whether written, verbal or visual) should not be made to [him] or any member of his family, much less to any matter purely personal to them. It appears that petitioners acceded to this demand and the name of private respondent Enrile was deleted from the movie script, and petitioners proceeded to film the projected motion picture. On 23 February 1988, private respondent filed a Complaint with application for TRO with the RTC of Makati, seeking to enjoin petitioners from producing the movie "The Four Day Revolution". The complaint alleged that petitioners' production of the mini-series without private respondent's consent and over his objection, constitutes an obvious violation of his right of privacy. Respondent court issued a Writ of Preliminary Injunction against the petitioners. Issue: Whether the granting of the Writ of Preliminary Injunction against the petitioners is a restraint on their right of free expression. Ruling: Considering first petitioners' claim to freedom of speech and of expression the Court would once more stress that this freedom includes the freedom to film and produce motion pictures and to exhibit such motion pictures in theaters or to diffuse them through

television. This freedom is available in our country both to locallyowned and to foreign-owned motion picture companies. The production of motion picture films is a commercial activity expected to yield monetary profit, is not a disqualification for availing of freedom of speech and of expression. To exclude commercially owned and operated media from the exercise of constitutionally protected freedom of speech and of expression can only result in the drastic contraction of such constitutional liberties in our country. The counterbalancing of private respondent is to a right of privacy. The right of privacy or "the right to be let alone," 6 like the right of free expression, is not an absolute right. The prevailing doctrine is that the clear and present danger rule is such a limitation. Another criterion for permissible limitation on freedom of speech and the press, which includes such vehicles of the mass media as radio, television and the movies, is the "balancing of interest test". The principle "requires a court to take conscious and detailed consideration of the interplay of interests observable in given situation or type of situation". The production and filming of the projected motion picture does not, in the circumstances of this case, constitute an unlawful intrusion upon private respondent's "right of privacy." The projected motion picture was as yet uncompleted and hence not exhibited to any audience. Neither private respondent nor the respondent trial Judge knew what the completed film would precisely look like. There was, in other words, no "clear and present danger" of any violation of any right to privacy that private respondent could lawfully assert. The line of equilibrium in the specific context of the instant case between the constitutional freedom of speech and of expression and the right of privacy, may be marked out in terms of a requirement that the proposed motion picture must be fairly truthful and historical in its presentation of events. Petitions for Certiorari are GRANTED DUE COURSE and the Order of respondent trial court granting a Writ of Preliminary Injunction is hereby SET ASIDE.

Title: Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council SCRA Citation: 632 SCRA 146 Date Promulgated: October 5, 2010

FACTS: This case consists of 6 petitions challenging the constitutionality of RA 9372, An Act to Secure the State and Protect our People from Terrorism, aka Human Security Act of 2007. Petitioner-organizations assert locus standi on the basis of being suspected communist fronts by the governm ent, whereas individual petitioners invoke the transcendental importance doctrine and their status as citizens and taxpayers. KARAPATAN, Hustisya, Desaparecidos, SELDA, EMJP, and PCR allege they have been subjected to close security surveillance by state security forces, their members followed by suspicious persons and vehicles with dark windshields, and their offices monitored by men with military build. They likewise claim they have been branded as enemies of the State. BAYAN, GABRIELA, KMP, MCCCL, COURAGE, KADAMAY, SCW, LFS, Anakbayan, PAMALAKAYA, ACT, Migrante, HEAD, and Agham would like the Court to take judicial notice of respondents alleged action of tagging them as militant organizations fronting for the CPP and NPA. They claim such tagging is tantamount to the effects of proscription without following the procedure under the law. Meanwhile, IBP and CODAL base their claim of locus standi on their sworn duty to uphold the Constitution. Petitioners claim that RA 9372 is vague and broad, in that terms like widespread and extraordinary fear and panic among the populace and coerce the government to give in to an unlawful demand are nebulous, leaving law enforcement agencies with no standard to measure the prohibited acts.

Petitioners: This is a consolidation of 6 petitions, thus:

KMU, NAFLU-KMU, CTUHR BAYAN, GABRIELA, KMP, MCCCL, COURAGE, KADAMAY, SCW, LFS, PAMALAKAYA, ACT, HEAD, Guingona, Jr., Lumbera, Constantino, Jr., Sr. Manansan, OSB, Dean Paz, Atty. Lichauco, Ret. Col. Cunanan, Siguion-Reyna, Dr. Pagaduan-Araullo, Reyes, Ramos, De Jesus, Baua, Casambre SELDA, EMJP, PCPR IBP, CODAL, Senator Madrigal, Osmena III, and Taada BAYAN-ST, other regl chapters and orgs mostly based in Southern Tagalog

GR No. 178581

GR No. 178890 GR No. 179157 GR. No. 179461

Respondents:
Anti-Terrorism Council, composed of: o Chairperson Eduardo Ermita o Vice-Chair Raul Gonzales o Acting Defense Secretary Alberto Romulo o National Security Adviser Norberto Gonzales o DILG Secretary Ronaldo Puno o Finance Secretary Margarito Teves AFP Chief of Staff General Hermogenes Esperon PNP Chief General Oscar Calderon PGMA Support agencies of the Anti-Terrorism Council, namely: o National Intelligence Coordinating Agency o NBI o Bureau of Immigration o Office of Civil Defense o Intelligence Service of the AFP o Anti-Money Laundering Center o Philippine Center on Transnational Crime o PNP intelligence and investigative elements

ISSUES: 1. WON petitioners resort to certiorari is proper NO. 2. WON petitioners have locus standi NO. 3. WON the Court can take judicial notice of the alleged tagging NO. 4. WON petitioners can invoke the transcendental importance doctrine NO. 5. WON petitioners can be conferred locus standi as they are taxpayers and citizens NO. 6. WON petitioners were able to present an actual case or controversy NO. 7. WON RA 9372 is vague and broad in defining the crime of terrorism NO. 8. WON a penal statute may be assailed for being vague as applied to petitioners NO.

9. WON there is merit in the claim that RA 9372 regulates speech so as to permit a facial analysis of its validity NO.

HELD AND RATIO: 1. Petition for certiorari is improper. a. Certiorari does not lie against respondents who do not exercise judicial or quasi-judicial functions. Section 1, Rule 65 of the Rules of Court states that petition for certiorari applies when any tribunal, board, or officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction. b. Petitioners do not even allege with any modicum of particularity how respondents acted without or in excess of their respective jurisdictions, or with grave abuse of discretion amounting to lack or excess of jurisdiction. c. The power of judicial review has 4 requisites: i. There must be an actual case or controversy. ii. Petitioners must possess locus standi. iii. Question of constitutionality must be raised at the earliest opportunity. iv. The issue of constitutionality must be the lis mota of the case. st The present case lacks the 1 2 requisites, which are the most essential. 2. Petitioners lack locus standi. a. Locus standi or legal standing requires a personal stake in the outcome of the controversy as to assure concrete adverseness. b. In Anak Mindanao Party-List Group v. The Executive Secretary, locus standi has been defined as that requiring: i. That the person assailing must have a direct and personal interest AND ii. That the person sustained or is in immediate danger of sustaining some direct inquiry as a result of the act being challenged. c. For a concerned party to be allowed to raise a constitutional question, he must show that: i. He has personally suffered some actual or threatened injury; ii. The injury is fairly traceable to the challenged action; AND iii. The injury is likely to be redressed by a favorable

action. d. RA 9372 is a penal statute. While Chavez v. PCGG holds that transcendental public importance dispenses with the requirement that petitioner has experienced or is in actual danger of suffering direct and personal injury, cases involving the constitutionality of penal legislation belong to an altogether different genus of constitutional litigation. Such necessitates closer judicial scrutiny of locus standi. e. The mere invocation of the duty to preserve the rule of law does no, however, suffice to clothe the IBP or any of its members with standing. They failed to sufficiently demonstrate how its mandate under the assailed statute revolts against its constitutional rights and duties. f. Former Senator Ma. Ana Consuelo Madrigal who claims to have been the subject of political surveillance also lacks locus standi. The same is true for Wigberto Taada and Osmea III, who cite their being a human rights advocate and an oppositor, respectively. No concrete injury has been pinpointed, hence, no locus standi. 3. Court cannot take judicial notice of the alleged tagging. a. Matters of judicial notice have 3 material requisites: i. matter must be one of common and general knowledge ii. must be well and authoritatively settled, not doubtful or uncertain or capable of accurate and ready determination iii. known to be within the limits of the jurisdiction of the court b. The principal guide in determining what facts may be assumed to be judicially known is that of notoriety. It can be said that judicial notice is limited to facts evidenced by public records and facts of general notoriety. Hence, it can be said that judicial notice is limited to: (1) facts evidenced by public records and (2) facts of general notoriety. c. A court cannot take judicial notice of any fact which, in part, is dependent on the existence or non-existence of a fact of which the Court has no constructive knowledge. d. Petitioners apprehension is insufficient to substantiate their plea. That no specific charge or proscription under RA 9371 has been filed against them, 3 years after its effectivity, belies any claim of imminence of their perceived threat emanating from the so-called tagging. They fail to particularize how the implementation of specific provisions of RA 9372 would result in direct injury to their organization and members. e. Notwithstanding the statement of Ermita and Gonzales that

the Arroyo administration will adopt the US and EU classification of CPP and NPA as terrorist organizations, there is yet to be filed before the courts an application to declare the CPP and NPA organizations as domestic terrorist or outlawed organization under RA 9372. 4. In Kilosbayan v. Guingona, to invoke the transcendental doctrine, the following are the determinants: a. The character of the funds or other assets involved in the case b. The presence of a clear case of disregard of a constitutional or statutory prohibition by the public respondent agency or instrumentality of the government; c. The lack of any other party with a more direct and specific interest in the questions being raised In the case at bar, there are other parties not before the Court with direct and specific interests in the questions being raised. 5. Petitioners cannot be conferred upon them as taxpayers and citizens. a. A taxpayer suit is proper only when there is an exercise of the spending or taxing power of Congress, whereas citizen standing must rest on direct and personal interest in the proceeding. b. RA 9372 is a penal statute and does not even provide for any appropriation from Congress for its implementation, while none of the individual petitioner-citizens has alleged any direct and personal interest in the implementation of the law. c. Generalized interest, albeit accompanied by the assertion of a public right, do not establish locus standi. Evidence of a direct and personal interest is key. 6. Petitioners fail to present an actual case or controversy. None of them faces any charge under RA 9372. a. Judicial power operates only when there is an actual case or controversy. An actual case or controversy means an existing case or controversy that is appropriate or ripe for determination, not conjectural or anticipatory, lest the decision of the court would amount to an advisory opinion. b. Courts do not sit to adjudicate mere academic questions to satisfy scholarly interest. The pleadings must show: i. an active antagonistic assertion of a legal right and ii. a denial thereof c. However, a reasonable certainty of the occurrence of a perceived threat to any constitutional interest suffices to provide a basis for mounting a constitutional challenge. This, however, is qualified by the presence of sufficient facts.

d. Prevailing American jurisprudence allows adjudication on the merits when an anticipatory petition clearly shows that the challenged prohibition forbids the conduct or activity that a petitioner seeks to do, as there would be a justiciable controversy. However, in the case at bar, the petitioners have failed to show that the challenged provisions of RA 9372 forbid constitutionally protected conduct or activity. No demonstrable threat has been established, much less a real and existing one. e. Petitioners have yet to show any connection between the purported surveillance and the implementation of RA 9372. Petitioners obscure allegations of sporadic surveillance and supposedly being tagged as communist fronts in no way approximate a credible threat of prosecution. From these allegations, the Court is being lured to render an advisory opinion, which is not its function. If the case is merely theorized, it lies beyond judicial review for lack of ripeness. Allegations of abuse must be anchored on real events. 7. The doctrines of void-for-vagueness and overbreadth find no application in the present case since these doctrines apply only to free speech cases and that RA 9372 regulates conduct, not speech. a. Romualdez v. Sandiganbayan: The overbreadth and the vagueness doctrines have special application only to free speech cases, and are not appropriate for testing the validity of penal statutes. b. Romualdez v. COMELEC: A facial invalidation of criminal statutes is not appropriate, but the Court nonetheless proceeded to conduct a vagueness analysis, and concluded that the therein subject election offense under the Voters Registration Act of 1996, with which the therein petitioners were charged, is couched in precise language. c. The aforementioned cases rely heavily on Justice Mendozas Separate Opinion in the Estrada case: Allegations that a penal statute is vague and overbroad do not justify a facial review of its validity. A facial challenge is allowed to be made to a vague statute and to one, which is overbroad because of possible chilling effect upon protected speech. This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect. If facial challenge is allowed, the State may well be prevented from enacting laws against socially harmful conduct. Overbreadth and vagueness doctrines then have special application only to free speech cases. They are inapt for testing the validity of penal statutes. 8. Since a penal statute may only be assailed for being vague as

applied to petitioners, a limited vagueness analysis of the definition of terrorism in RA 9372 is legally impossible absent an actual or imminent charge against them. a. The doctrine of vagueness and the doctrine of overbreadth do not operate on the same plane. i. A statute or acts suffers from the defect of vagueness when: 1. It lacks comprehensible standards that men of common intelligence must necessarily guess at its meaning and differ as to its application. It is repugnant to the Constitution in 2 ways: a. Violates due process for failure to accord fair notice of conduct to avoid b. Leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle. ii. The overbreadth doctrine decrees that a governmental purpose to control or prevent activities constitutionally subject to state regulations may not be achieved by means, which sweep unnecessarily broadly and thereby invade the area of protected freedoms. b. A facial challenge is likewise different from an as applied challenge. i. As applied challenge considers only extant facts affecting real litigants. ii. Facial challenge is an examination of the entire law, pinpointing its flaws and defects, not only on the basis of its actual operation to the parties, but also on the assumption or prediction that its very existence may cause others not before the court to refrain from constitutionally protected speech or activities. 1. Under no case may ordinary penal statutes be subjected to a facial challenge. If facial challenge to a penal statute is permitted, the prosecution of crimes may be hampered. No prosecution would be possible. 9. There is no merit in the claim that RA 9372 regulates speech so as to permit a facial analysis of its validity. a. Section 3 of RA 9372 provides the following elements of the crime of terrorism: i. Offender commits an act punishable under RPC and

the enumerated special penal laws; ii. Commission of the predicate crime sows and creates a condition of widespread and extraordinary fear and panic among the populace; iii. The offender is actuated by the desire to coerce the government to give in to an unlawful demand. b. Petitioners contend that the element of unlawful demand in the definition of terrorism must necessarily be transmitted through some form of expression protected by the free speech clause. The argument does not persuade. What RA 9372 seeks to penalize is conduct, not speech. c. Petitioners notion on the transmission of message is entirely inaccurate, as it unduly focuses on just one particle of an element of the crime. Almost every commission of a crime entails some mincing of words on the part of offender. Utterances not elemental but inevitably incidental to the doing of the criminal conduct alter neither the intent of the law to punish socially harmful conduct nor the essence of the whole act as conduct and not speech.

U.S. vs. Obrien By the 1965 Amendment, Congress added to 1948 Act the provision punishing also one who "knowingly destroys, or knowingly mutilates" a certificate. The 1965 Amendment does not abridge free speech on its face, it deals with conduct having no connection with speech. It prohibits the knowing destruction of certificates issued by the SSS, and there is nothing necessarily expressive about such conduct. The Amendment does not distinguish between public and private destruction, and it does not punish only destruction engaged in for the purpose of expressing views. II. WON the 1965 Amendment is unconstitutional as applied to him. NO For this act, O'Brien was indicted, tried, convicted, and sentenced in the US DC for the District of Mass. He stated in argument to the jury that he burned the certificate publicly to influence others to adopt his antiwar beliefs, "so that other people would reevaluate their positions with Selective Service, with the armed forces, and reevaluate their place in the culture of today, to hopefully consider my position." The DC rejected O'Brien's arguments. CA held the 1965 Amendment unconstitutional under the First Amendment as singling out for special treatment persons engaged in protests, on the ground that conduct under the 1965 Amendment was already punishable since a Selective Service System regulation required registrants to keep their registration certificates in their personal possession at all times.

FACTS: David Paul O'Brien and 3 companions burned their Selective Service registration certificates on the steps of the South Boston Courthouse. A crowd, including several agents of the FBI, witnessed the event. After the burning, members of the crowd began attacking O'Brien and his companions. An FBI agent ushered O'Brien to safety inside the courthouse. O'Brien stated to FBI agents that he had burned his registration certificate because of his beliefs, knowing that he was violating federal law.

O'Brien argues that his act of burning his registration certificate was protected "symbolic speech" within the First Amendment. Freedom of expression which the First Amendment guarantees includes all modes of "communication of ideas by conduct," and that his conduct is within this definition because he did it in demonstration against the war and against the draft.

ISSUE: I. WON the 1965 Amendment to 462 (b) (3) abridges freedom of speech. NO

Even on the assumption that the communicative element in O'Brien's conduct is sufficient to bring into play the First Amendment, it does not necessarily follow that the destruction of a registration certificate is constitutionally protected activity. When "speech" and "nonspeech" elements are combined, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms. Govt regulation is sufficiently justified if: 1. it is within the constl power of the Govt 2. it furthers an important or substantial govtal interest; 3. the govtal interest is unrelated to the suppression of free expression; and 4. the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

When a male reaches 18, he is required by the Universal Military Training and Service Act of 1948 to register with a local draft board. He is assigned a Selective Service number, and within 5 days he is issued a registration certificate He is also assigned a classification denoting his eligibility for induction, and is issued a Notice of Classification.

Under 12 (b) (3) of the 1948 Act, it was unlawful to forge, alter, "or in any manner" change a certificate. In addition, regulations of the SSS required registrants to keep both their registration and classification certificates in their personal possession at all times. (nonpossession)

All requirements met therefore O'Brien can be constitutionally convicted for violating it.

O'Brien's argues that once the registrant has received notification there is no reason for him to retain the certificates. O'Brien notes that most of the information on a registration certificate serves no notification purpose at all; the registrant hardly needs to be told his address and physical characteristics.

interest and the scope of the 1965 Amendment are limited to preventing harm to the smooth and efficient functioning of the SSS. The case at bar is therefore unlike one where the alleged govtal interest in regulating conduct arises in some measure because the communication allegedly integral to the conduct is itself thought to be harmful.

The registration certificate serves purposes in addition to initial notification: 1. as proof that the individual described thereon has registered for the draft. 2. facilitates communication between registrants and local boards. 3. reminders that the registrant must notify his local board of any change of address, and other specified changes in his status.

Because of the Govt's substantial interest in assuring the continuing availability of issued SS certificates, and because amended 462 (b) is a narrow means of protecting this interest and condemns only the noncommunicative impact of conduct within its reach, and because the noncommunicative impact of O'Brien's act of burning his registration certificate frustrated the Govt's interest, a sufficient governmental interest has been shown to justify O'Brien's conviction. III. WON the 1965 Amendment is unconstitutional as enacted because the alleged purpose of Congress was "to suppress freedom of speech." NO

The many functions performed by SS certificates establish beyond doubt that Congress has a legitimate and substantial interest in preventing their unrestrained destruction. The nonpossession regulations does negates this interest.

The purpose of Congress is not a basis for declaring this legislation unconstitutional. The Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive. The statute attacked in this case has no inevitable unconstitutional effect, since the destruction of SS certificates is in no respect inevitably or necessarily expressive. Accordingly, the statute itself is constitutional. There was little floor debate on this legislation in either House. Reports of the Senate and House Armed Services Committees make clear a concern with the "defiant" destruction of so-called "draft cards" and with "open" encouragement to others to destroy their cards, both reports also indicate that this concern stemmed from an apprehension that unrestrained destruction of cards would disrupt the smooth functioning of the Selective Service System

multiple punishment? it is not improper for Congress' to provide alternative statutory avenues of prosecution to assure the effective protection of one and the same interest. Here, the pre-existing avenue of prosecution(nonpossession) was not even statutory. Congress may change or supplement a regulation. (see difference between pre-existing and new)

Nonpossession vs. Destruction(new) They protect overlapping but not identical governmental interests. They reach different classes of wrongdoers. Whether registrants keep their certificates in their personal possession at all times, is of no particular concern under the 1965 Amendment, as long as they do not mutilate or destroy the certificates. The Amendment is concerned with abuses involving any issued SS certificates, not only with the registrant's own certificates. The knowing destruction or mutilation of someone else's certificates would therefore violate the statute but not the nonpossession regulations.

Both the govtal interest and the operation of the 1965 Amendment are limited to the noncommunicative aspect of O'Brien's conduct. The govtal

GONZALES VS. COMELEC [27 SCRA 835; G.R. L-27833; 18 APR 1969] Facts: RA 4880 which took effect on June 17, 1967, prohibiting the too early nomination of candidates and limiting the period of election campaign or partisan political activity was challenged on constitutional grounds. More precisely, the basic liberties of free speech and free press, freedom of assembly and freedom of association are invoked to nullify the act. Petitioner Cabigao was, at the time of the filing the petition, an incumbent councilor in the 4th District of Manila and the Nacionalista Party official candidate for Vice-Mayor of Manila to which he was subsequently elected on November 11, 1967; petitioner Gonzales, on the other hand, is a private individual, a registered voter in the City of Manila and a political leader of his co-petitioner. There was the further allegation that the nomination of a candidate and the fixing of period of election campaign are matters of political expediency and convenience which only political parties can regulate or curtail by and among themselves through self-restraint or mutual understanding or agreement and that the regulation and limitation of these political matters invoking the police power, in the absence of clear and present danger to the state, would render the constitutional rights of petitioners meaningless and without effect. Senator Lorenzo M. Taada was asked to appear as amicus curiae, and elucidated that Act No. 4880 could indeed be looked upon as a limitation on the preferred rights of speech and press, of assembly and of association. He did justify its enactment however under the clear and present danger doctrine, there being the substantive evil of elections, whether for national or local officials, being debased and degraded by unrestricted campaigning, excess of partisanship and undue concentration in politics with the loss not only of efficiency in government but of lives as well. The Philippine Bar Association, the Civil Liberties Union, the U.P. Law Center and the U.P. Women Lawyers' Circle were requested to give their opinions. Respondents contend that the act was based on the police power of the state. Issue: Whether or Not RA 4880 unconstitutional. Held: Yes. As held in Cabansag v. Fernandez there are two tests that may supply an acceptable criterion for permissible restriction on freedom of speech.

These are the clear and present danger rule and the 'dangerous tendency' rule. The first, means that the evil consequence of the comment or utterance must be extremely serious and the degree of imminence extremely high before the utterance can be punished. The danger to be guarded against is the 'substantive evil' sought to be prevented. It has the advantage of establishing according to the above decision a definite rule in constitutional law. It provides the criterion as to what words may be publicly established. The "dangerous tendency rule" is such that If the words uttered create a dangerous tendency which the state has a right to prevent, then such words are punishable. It is not necessary that some definite or immediate acts of force, violence, or unlawfulness be advocated. It is sufficient that such acts be advocated in general terms. Nor is it necessary that the language used be reasonably calculated to incite persons to acts of force, violence, or unlawfulness. It is sufficient if the natural tendency and probable effect of the utterance be to bring about the substantive evil which the legislative body seeks to prevent. The challenged statute could have been more narrowly drawn and the practices prohibited more precisely delineated to satisfy the constitutional requirements as to a valid limitation under the clear and present danger doctrine. As the author Taada clearly explained, such provisions were deemed by the legislative body to be part and parcel of the necessary and appropriate response not merely to a clear and present danger but to the actual existence of a grave and substantive evil of excessive partisanship, dishonesty and corruption as well as violence that of late has invariably marred election campaigns and partisan political activities in this country. The very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for redress of grievances. As in the case of freedom of expression, this right is not to be limited, much less denied, except on a showing of a clear and present danger of a substantive evil that Congress has a right to prevent. The prohibition of any speeches, announcements or commentaries, or the holding of interviews for or against the election of any party or candidate for public office and the prohibition of the publication or distribution of campaign literature or materials, against the solicitation of votes whether directly or indirectly, or the undertaking of any campaign literature or propaganda for or against any candidate or party is repugnant to a constitutional command.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-13223 May 30, 1960

OSCAR MENDOZA ESPUELAS, petitioner-appellee, vs. THE PROVINCIAL WARDEN OF BOHOL, respondent-appellant. Rolando Butalid G. for appellee. Acting Solicitor General Guillermo E. Torres and Assistant Solicitor General Florencio Villamor for appellant. PADILLA, J.: The respondent appeals from a judgment of the Court of First Instance of Bohol granting the petition for a writ of habeas corpus filed by Oscar Mendoza Espuelas and ordering his release from the custody of the respondent (special proceedings No. 343). Then petitioner was charged in the Court of First Instance of Bohol with the crime of inciting to sedition defined and penalized in article 142 of the Revised Penal Code. After trial, on 22 September 1947 the Court found him guilty as charged and sentenced to suffer an indeterminate penalty from 2 years, 4 months and 1 day of prision correccional as minimum to 5 years, 4 months and 20 days of prision correccional as maximum, to pay a fine of P1,000, to suffer subsidiary imprisonment not exceeding one-third of the principal penalty in case of insolvency, and to pay the costs (criminal case No. 576).1 He commenced to serve his sentence, but before serving it to its full extent, on 17 March 1954, upon recommendation of the Board of Pardons and Parole, the President of the Philippines granted him conditional pardon by remitting the unexpired period of his sentence and payment of the fine of P1,000, "on condition that he shall not again violate any of the penal laws of the Philippines." On 25 March 1954 he accepted the conditional pardon and was released from confinement (Exhibit A). Sometime thereafter, in the Justice of the Peace Court of Tagbilaran, Bohol, he was charged with the crime of usurpation of authority or official functions defined and penalized in article 177 of the Revised Penal Code and Republic Act No. 10. After trial, on 29 August 1956 the Court found him guilty as charged and sentenced to suffer 4 months and 1 day of arresto mayor as minimum to 2 years, 1 month and 1 day of prision correccional as maximum, the accessories of the law, and to pay the costs. He appealed to the Court of First Instance of Bohol. On 5 July 1957 the Provincial Fiscal filed a motion stating that one of the important witnesses for the prosecution was in Manila and could not appear on the day of the trial (5 July) and praying that the case be dismissed provisionally and the bond filed for the provisional release of the petitioner cancelled. On the same day, 5 July 1957, the Court granted the motion and dismissed the case (Exhibit B). On 8 November 1957, upon the recommendation of the Board of Pardons and Parole, the President ordered his recommitment to prison to serve the unexpired period of his sentence (Exhibit 1). On 9 November 1957 the petitioner

was arrested by members of the Philippine Constabulary in Tagbilaran, Bohol, and confined in the provincial jail. On 20 November 1957 he filed a petition for habeas corpus in the Court of First Instance of Bohol. After hearing, on 22 November 1957, as stated at the beginning of this opinion, the Court granted his petition. On 23 November 1957 the respondent has appealed. On the same day, 23 November, the petitioner filed a bond for his provisional release pending appeal. The question to determine is whether the President may order the reincarceration of the appellee, upon violation by the later of the terms of the conditional pardon granted to and accepted by him, to serve the unexpired term or period of his sentence. The Solicitor General maintains that the President may do so; whereas the appellee contends that he may not. In the case of Tesoro vs. The Director of Prisons, 68 Phil., 154, quite similar to the case under consideration, this Court held: xxx xxx xxx

Appellant further contends that judicial pronouncement to the effect that he has committed a crime is necessary before he can be properly adjudged as having violated his conditional parole. Under condition No. 2 of his parole, petitioner agreed that he "will not commit any other crime and will conduct himself in an orderly manner." (Emphasis ours.) It was, therefore, the mere commission not his conviction by court, of any other crime, that was necessary in order that the petitioner may be deemed to have violated his parole. And under section 64(i) of the Administrative Code the Chief Executive is authorized to order "the arrest and reincarceration of any such person, in his judgment, shall fail to comply with the condition, or conditions, of his pardon, parole or suspension of sentence. (Emphasis ours.) xxx xxx xxx

Under section 64 (i) of the Revised Administrative Code, the President is empowered "to authorize the arrest and reincarceration of any such person who, in his judgment, shall fail to comply with the condition, or conditions, of his pardon, parole, or suspension of sentence." The arrest and confinement of the appellee were ordered by the President upon the recommendation of the Board of Pardons and Parole (Exhibit 1). In Sales vs. Director of Prisons, 87 Phil., 492; 48 Off. Gaz., 576, and in Infante vs. Provincial Warden, 92 Phil., 310; 48 Off. Gaz., 5228, this Court held: The Revised Penal Code, which was approved on December 8, 1930, contains a repealing clause (article 367), which expressly repeals among other Acts sections 102, 2670, 2671, and 2672 of the Administrative Code. It does not repeal section 64(i) above quoted. On the contrary, Act No. 4103, the Indeterminate Sentence Law, which is subsequent to the Revised Penal Code, in its section 9 expressly preserves the authority conferred upon the President by section 64(i) of the Revised Administrative Code.

The legislative intent is clear, therefore, to preserve the power of the President to authorize the arrest and reincarceration of any person who violates the condition or conditions of his pardon notwithstanding the enactment of article 159 of the Revised Penal Code. In this connection, we observe that section 64(i) of the Administrative Code and article 159 of the Revised Penal Code are but a reiteration Acts Nos. 1524 and 1561, under which a violator of a conditional pardon was liable to suffer and to serve the unexpired portion of the original sentence. xxx xxx xxx

The condition of the pardon granted by the President to the petitioner is "that he shall not again violate any of the penal laws of the Philip[pines. Should this condition be violated, he will be proceeded against in the manner prescribed by law." Due process is not necessarily judicial.2 The appellee had had his day in court and been afforded the opportunity to defend himself during his trial for the crime of inciting to sedition, with which he was charged, that brought about or resulted in his conviction, sentence and confinement in the penitentiary. When he was conditionally pardoned it was a generous exercised by the Chief Executive of his constitutional prerogative. The acceptance thereof by the convict or prisoner carries with it the authority or power of the Executive to determine whether a condition or conditions of the pardon has or have been violated. To no other department of the Government such power has been entrusted. In Tesoro vs. Director of Prisons, supra, this Court held: . . . where, as in the instant case, the determination of the violation of the conditional parole rests exclusively in the sound judgment of the Chief Executive, the court will not interfere, by way of review, with any of his findings. . . . In Sales vs. Director of Prisons, supra, this court further held: xxx xxx xxx

with is a convict, that he has already been seized in a constitutional way, been confronted by his accusers and the witnesses against him, been tried by the jury of his peers secured to him by the Constitution, and by them been convicted of crime, and been sentenced to punishment therefor. In respect of that crime and his attitude before the law after conviction of it, he is not a citizen, nor entitled to invoke the organic safeguards which hedge about the citizen's liberty, but he is a felon, at large by the mere grace of the executive, and not entitled to be at large after he has breached the conditions upon which that grace was extended to him. In the absence of this statute, a convict who had broken the conditions of a pardon would, it there were no question of his identity or the fact of breach of the conditions, be subject to summary arrest, and remandment, as matter of course, to imprisonment, under the original sentence by the court of his conviction, or any court of coordinate or superior jurisdiction, a purely formal proceeding. ... But the statute supervenes to avoid the necessity for any action by the courts in the premises. The executive clemency under it is extended upon the conditions named in it, and he accepts it upon those conditions. One of these is that the governor may withdraw his grace in a certain contingency, and another is that the governor shall himself determine when that contingency has arisen. It is as if the convict, with full competency to bind himself in the premises had expressly contracted and agreed that, whenever the governor should conclude that he had violated the condition to prison should at once issue, and be conclusive upon him. . . . The judgment appealed from is reversed, with costs against the appellee.

It is contended by the petitioner that the power vested in the President by section 64(i) of the Revised Administrative Code to authorize the arrest and reincarceration of a violator of a conditional pardon is repugnant to the due process of law granted by the Constitution (sec 1, Article III). A similar contention was advanced by the petitioner in the case of Fuller vs. State of Alabama (45 L.R.A., 502), and was rejected by the Supreme Court of that state, speaking thru Chief Justice McClellan, in the following language: But it is insisted that this statute, in so far as it undertakes to authorize the governor to determine that the condition of the parole has not been complied with and the summary arrest of the convict thereupon by the direction of the governor, and his summary return or remandment to servitude or imprisonment under the sentence, is violative by organic guaranties of jury trial, that no warrant shall be issued to seize any person without probable cause, supported by oath or affirmation, etc. This position takes no account of the fact that the person being dealt

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-22979 June 26, 1967

RHEEM OF THE PHILIPPINES, INC., ET AL., petitioners, vs. ZOILO R. FERRER, ET AL., respondents. IN RE PROCEEDINGS AGAINST ALFONSO PONCE ENRILE, LEONARDO SIGUION REYNA, MANUEL G. MONTECILLO, ENRIQUE M. BELO, OSCAR R. ONGSIAKO, and JOSE S. ARMONIO, members of the Philippine Bar. Ponce Enrile, Siguion Reyna, Montecillo and Belo for petitioners. Jose T. Valmonte for respondents. RESOLUTION SANCHEZ, J.: Contempt proceedings. The following from the motion to reconsider the decision herein, filed by counsel for petitioners One pitfall into which this Honorable Court has repeatedly fallen whenever the question as to whether or not a particular subject matter is within the jurisdiction of the Court of Industrial Relations is the tendency of this Honorable Court to rely upon its own pronouncement without due regard to the statutes which delineate the jurisdiction of the industrial court. Quite often, it is overlooked that no court, not even this Honorable Court, is empowered to expand or contract through its decision the scope of its jurisdictional authority as conferred by law. This error is manifested by the decisions of this Honorable Court citing earlier rulings but without making any reference to and analysis of the pertinent statute governing the jurisdiction of the Court of Industrial Relations. This manifestation appears in this Honorable Court's decision in the instant case. As a result, the errors committed in earlier cases dealing with the jurisdiction of the industrial court are perpetuated in subsequent cases involving the same issue . . . . It may also be mentioned in passing that this Honorable Court contravened Rule 2, Section 5 of the Rules of Court when it applied the so-called "rule against splitting of jurisdiction" in its Decision in the present case. As applied by this Honorable Court, the rule means that when an employee files with the Court of Industrial Relations numerous claims relative to his employment but only one [of] which is cognizable by said court under the law, while the others pertain to other tribunals, that court has authority to entertain all the claims to avoid multiplicity, of suits. . . . . drew from the Court an order directing counsel to show cause why they should not be dealt with for contempt of court.

In respondent attorneys' verified return, they offered "their most sincere apologies for the language used" and stated that "[i]t was not and it has never been their intention to be disrespectful." They manifested that the language "was the result of overenthusiasm on the part of Atty. [Jose S.] Armonio, who thought best to focus the attention of this Honorable Court to the issue in the case, as not in any way meant to slight or offend this Honorable Court. They also said that the unfortunate Motion for Reconsideration was prepared and filed by Atty. Armonio who had been personally handling the case since its inception at the Court of Industrial Relations, and who had, perhaps, become too emotionally involved in the case." Respondent members of the law firm, namely, Attys. Alfonso Ponce Enrile, Leonardo Siguion Reyna, Manuel G. Montecillo, Enrique M. Belo and Oscar R. Ongsiako assumed "full responsibility" for what appears in the motion for reconsideration. They submitted, not as an excuse, but as fact, that not one of the partners was able to pass upon the draft or final form of the said motion, and that Atty. Armonio, an associate, prepared, signed and filed the motion "without clearing it with any of the partners of the firm." The return winds up with an expression of deep regret about the incident, coupled with an earnest pledge that it "shall never happen again." Subsequent to the return, respondent attorneys appeared in court. Attys. Ponce Enrile and Armonio were orally heard.1wph1.t 1. As we look back at the language (heretofore quoted) employed in the motion for reconsideration, implications there are which inescapably arrest attention. It speaks of one pitfall into which this Court has repeatedly fallen whenever the jurisdiction of the Court of Industrial Relations comes into question. That pitfall is the tendency of this Court to rely on its own pronouncements in disregard of the law on jurisdiction. It makes a sweeping charge that the decisions of this Court blindly adhere to earlier rulings without as much as making "any reference to and analysis of" the pertinent statute governing the jurisdiction of the industrial court. The plain import of all these is that this Court is so patently inept that in determining the jurisdiction of the industrial court, it has committed error and continuously repeated that error to the point of perpetuation. It pictures this Court as one which refuses to hew to the line drawn by the law on jurisdictional boundaries. Implicit in the quoted statements is that the pronouncements of this Court on the jurisdiction of the industrial court are not entitled to respect. Those statements detract much from the dignity of and respect due this Court. They bring into question the capability of the members and some former members of this Court to render justice. The second paragraph quoted yields a tone of sarcasm when counsel labelled as "so-called" the "rule against splitting of jurisdiction."1 By now, a lawyer's duties to the Court have become common place. Really, there could hardly be any valid excuse for lapses in the observance thereof. Section 20 (b), Rule 138 of the Rules of Court, in categorical terms, spells out one such duty: "To observe and maintain the respect due to the courts of justice and judicial officers." As explicit is the first canon of legal ethics which pronounces that "[i]t is the duty of the lawyer to maintain towards the Courts a respectful attitude, not for the sake of the temporary incumbent of the judicial office, but for

the maintenance of its supreme importance." That same canon, as a corollary, makes it peculiarly incumbent upon lawyers to support the courts against "unjust criticism and clamor." And more. The attorney's oath solemnly binds him to a conduct that should be "with all good fidelity . . . to the courts." Worth remembering is that the duty of an attorney to the courts "can only be maintained by rendering no service involving any disrespect to the judicial office which he is bound to uphold." 2 We concede that a lawyer may think highly of his intellectual endowment. That is his privilege. And, he may suffer frustration at what he feels is others' lack of it. That is his misfortune. Some such frame of mind, however, should not be allowed to harden into a belief that he may attack a court's decision in words calculated to jettison the time-honored aphorism that courts are the temples of right. He should give due allowance to the fact that judges are but men; and men are encompassed by error, fettered by fallibility. 2. What we have before us is not without precedent. Time and again, this Court has admonished and punished, in varying degrees, members of the Bar for statements, disrespectful or irreverent, acrimonious or defamatory, of this Court or the lower courts. 3 Resort by an attorney in a motion for reconsideration to words which may drag this Court down into disrepute, is frowned upon as "neither justified nor in the least necessary, because in order to call the attention of the court in a special way to the essential points relied upon in his argument and to emphasize the force thereof, the many reasons stated in the motion" are "sufficient," and such words "superfluous." 4 It is in this context that we must say that just because Atty. Armonio "thought best to focus the attention" of this Court "to the issue in the case" does not give him in bridled license in language. To be sure, lawyers may come up with various methods, perhaps much more effective, in calling the Court's attention to the issues involved. The language vehicle does not run short of expressions, emphatic but respectful, convincing but not derogatory, illuminating but not offensive. To be proscribed then is the use of unnecessary language which jeopardizes high esteem in courts, creates or promotes distrust in judicial administration, or which could have the effect of "harboring and encouraging discontent which, in many cases, is the source of disorder, thus undermining the foundation upon which rests that bulwark called judicial power to which those who are aggrieved turn for protection and relief." 5 Stability of judicial institutions suggests that the Bar stand firm on this precept. The language here in question, respondents aver, "was the result of overenthusiasm." It is but to repeat an old idea when we say that enthusiasm, or even excess of it, is not really bad. In fact, the one or the other is no less a virtue, if channelled in the right direction. However, it must be circumscribed within the bounds of propriety and with due regard for the proper place of courts in our system of government. 6 We are not unmindful of counsel's statement that the language used "was not in any way meant to slight or offend" this Court. Want of intention, we feel constrained to say, is no excuse for the language employed. For, counsel cannot

escape responsibility "by claiming that his words did not mean what any reader must have understood them as meaning." 7 At best, it extenuates liability. 3. We now turn to the partners of the law firm. They explained that not one of them cleared the motion in which the questionable portion appears. Their reason is that they were not in the office at the time said motion was filed which was the last day. They added that "it is the policy of the firm known to all its members and associates that only the partners can sign court pleadings except in rare cases where, for want of time or due to unexpected circumstances, an associate has to sign the same." We understood Atty. Alfonso Ponce Enrile to have said in open court that in his long years of practice, he knows that it serves no useful purpose to downgrade the dignity of the Court. We may overlook the shortcomings of the members of the law firm; except that, as we see it, partners are duty bound to provide for efficacious control of court pleadings and other court papers that carry their names or the name of their law firm. Seemingly, such control was absent here. In the end, we admonish Atty. Jose S. Antonio, with the warning that repetition of this incident will be dealt with accordingly. Let a copy of this resolution be attached to his record. Attention of Attys. Alfonso Ponce Enrile, Leonardo Siguion Reyna, Manuel G. Montecillo, Enrique M. Belo and Oscar R. Ongsiako is invited to the necessity of exercising adequete supervision and control of the pleadings and other documents submitted by their law firm to the courts of justice of this country. So ordered.

SOCIAL WEATHER STATIONS, INCORPORATED and KAMAHALAN PUBLISHING CORPORATION, doing business as MANILA STANDARD , petitioners, vs. COMMISSION ON ELECTIONS, respondent.

Issue: whether or not Section 5.4 of RA 9006 constitutes an unconstitutional abridgment of freedom of speech, expression and the press?

Facts: Petitioner, Social Weather Stations, Inc. (SWS) is a private non-stock, nonprofit social research institution conducting surveys in various fields. On the other hand, petitioner Kamahalan Publishing Corporation publishes the Manila Standard, a newspaper of general circulation. Petitioners brought this action for prohibition to enjoin the Commission on Elections from enforcing Section 5.4 of RA. No.9006 (Fair Election Act), which provides 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 (7) days before an election. Petitioners argue that the restriction on the publication of election survey results constitutes a prior restraint on the exercise of freedom of speech without any clear and present danger to justify such restraint. They claim that SWS and other pollsters conducted and published the results of surveys prior to the 1992, 1995, and 1998 elections up to as close as two days before the election day without causing confusion among the voters and that there is neither empirical nor historical evidence to support the conclusion that there is an immediate and inevitable danger to tile voting process posed by election surveys. No similar restriction is imposed on politicians from explaining their opinion or on newspapers or broadcast media from writing and publishing articles concerning political issues up to the day of the election. They contend that there is no reason for ordinary voters to be denied access to the results of election surveys, which are relatively objective. Respondent Commission on Elections justifies the restrictions in 5.4 of R.A. No. 9006 as necessary to prevent the manipulation and corruption of the electoral process by unscrupulous and erroneous surveys just before the election. It contends that (1) the prohibition on the publication of election survey results during the period proscribed by law bears a rational connection to the objective of the law, i.e., the prevention of the debasement of the electoral process resulting from manipulated surveys, bandwagon effect, and absence of reply; (2) it is narrowly tailored to meet the "evils" sought to be prevented; and (3) the impairment of freedom of expression is minimal, the restriction being limited both in duration, i.e., the last 15 days before the national election and the last 7 days before a local election, and in scope as it does not prohibit election survey results but only require timeliness.

Held: Based on the above reasons (petitioner), yes, it constitutes an unconstitutional abridgement of freedom of expression, speech and the press. To summarize, the Supreme Court held that 5.4 is invalid because (1) it imposes a prior restraint on the freedom of expression, (2) it is a direct and total suppression of a category of expression even though such suppression is only for a limited period, and (3) the governmental interest sought to be promoted can be achieved by means other than suppression of freedom of expression. Section 5.4 lays a prior restraint on freedom of speech, expression, and the press prohibiting the publication of election survey results affecting candidates within the prescribed periods of fifteen (15) days immediately preceding a national election seven (7) days before a local election. Because of tile preferred status of tile constitutional rights of speech, expression, and the press, such a measure is vitiated by a weighty presumption of invalidity. Any system of prior restraints of expression comes to this Court bearing a heavy Presumption against its constitutional validity. The Government thus carries a heavy burden of showing justification for in enforcement of such restraint. Nor may it be argued that because of Art. IX-C, 4 of the Constitution, which gives the COMELEC supervisory power to regulate the enjoyment or utilization of franchise for the operation of media of communication, no presumption of invalidity attaches to a measure like 5.4. For as we have pointed out in sustaining tile ban on media political advertisements, the grant of power to the COMELEC under Art. IX-C, 4 is limited to ensuring "equal opportunity, time, space, and the right to reply" as well as uniform and reasonable rates of charges for the use of such media facilities "public information campaigns and forums among candidates." MR JUSTICE KAPUNAN dissents. He rejects as inappropriate the test of clear and present danger for determining the validity of 5.4. Hence, while it may be useful for determining the validity of laws dealing with inciting to sedition or incendiary speech, it may not be adequate for such regulations as the one in question. For such a test is concerned with questions of the gravity and imminence of the danger as basis for curtailing free speech, which is not the case of 5.4 and similar regulations. Instead, MR JUSTICE KAPUNAN purports to engage in a form of balancing by "weighing and balancing the circumstances to determine whether public interest is served by the regulation of the free enjoyment of the rights". The dissenting opinion simply concludes that the objectives of Section 5.4 are valid. It may be seen that its limiting impact on the rights of free speech and of the press is not unduly

repressive or unreasonable. The dissent does not, however, show why, on balance, these considerations should outweigh the value of freedom of expression. As already stated, the purpose of Art. IX-C, 4 is to "ensure equal opportunity, time, and space and the right of reply, including reasonable, equal rates therefore for public information campaigns and forums among candidates". Hence the validity of the ban on media advertising. It is noteworthy that R.A. No. 9006, 14 has lifted the ban and now allows candidates to advertise their candidacies in print and broadcast media. Indeed, to sustain the ban on the publication of survey results would sanction the censorship of all speaking by candidates in an election on the ground that the usual bombasts and hyperbolic claims made during the campaigns can confuse voters and thus debase the electoral process. In sum, the dissent has engaged only in a balancing at the margin. This form of ad hoc balancing predictably results in sustaining the challenged legislation and leaves freedom of speech, expression, and the press, with little protection. Nor can the ban on election surveys be justified on the ground that there are other countries - 78, according to the Solicitor General, while the dissent cites 28 - which similarly impose restrictions on the publication of election surveys. At best this survey is inconclusive. In some countries, of which are no older nor more mature than the Philippines in political development, they do not restrict the publication of election survey results. The O 'Brien test could then be employed to determine the constitutional validity of 5.4. The United States Supreme Court, through Chief Justice Warren, held in United States v. O 'Brien: [A] Government regulation is sufficiently justified [1] if it is within the constitutional power of the Government; [2] if it furthers an important or substantial governmental interest; [3] if the governmental interest is unrelated to the suppression of free expression; and [4] if the incidental restriction on alleged First Amendment freedoms [of speech, expression and press] is no greater than is essential to the furtherance of that interest. Under this test, even if a law furthers an important or substantial governmental interest, it should be invalidated if such governmental interest is "not unrelated to the Expression of free expression." Moreover, even if the purpose is unrelated to the suppression of free speech, the law should nevertheless be invalidated if the restriction on freedom of expression is greater than is necessary to achieve the governmental purpose in question. First. Sec. 5.4 fails to meet criterion [3] of the O 'Brien test because the causal connection of expression to the asserted governmental interest makes such interest "not related to the suppression of free expression." By prohibiting the publication of election survey results because of the possibility that such publication might undermine the integrity of the election, 5.4 actually suppresses a whole class of expression, while allowing the expression of opinion concerning the same subject matter by newspaper columnists, radio and TV commentators, armchair theorists, and other

opinion takers. In effect, 5.4 shows a bias for a particular subject matter, if not viewpoint, by referring personal opinion to statistical results. The constitutional guarantee of freedom of expression means that "the government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." The prohibition imposed by 5.4 cannot be justified on the ground that it is only for a limited period and is only incidental. The prohibition may be for a limited time, but the curtailment of the right of expression is direct, absolute, and substantial. It constitutes a total suppression of a category of speech and is not made less so because it is only for a period of fifteen (15) days immediately before a national election and seven (7) days immediately before a local election. Second. Even if the governmental interest sought to be promoted is unrelated to the suppression of speech and the resulting restriction of free expression is only incidental, 5.4 nonetheless fails to meet criterion [4] of the O 'Brien test, namely, that the restriction be not greater than is necessary to further the governmental interest. As already stated, 5.4 aims at the prevention of last-minute pressure on voters, the creation of bandwagon effect, "junking" of weak or "losing" candidates, and resort to the form of election cheating called "dagdag-bawas." Praiseworthy as these aims of the regulation might be, they cannot be attained at the sacrifice of the fundamental right of expression, when such aim can be more narrowly pursued by punishing unlawful acts, rather than speech because of apprehension that such speech creates the danger of such evils. WHEREFORE, the petition for prohibited GRANTED and 5.4 of R.A. No. 9006 24(h) of COMELEC Resolution 3636, March 1, 2001, are declared unconstitutional.

Tulfo v. People GR Nos. 161032 and 161176 16 September 2008 Facts: Atty. Ding So of the Bureau of Customs filed four separate Informations against Erwin Tulfo, Susan Cambri, Rey Salao, Jocelyn Barlizo, and Philip Pichay, accusing them of libel in connection with the publication of articles in the column Direct Hit of the daily tabloid Remate. The column accused So of corruption, and portrayed him as an extortionist and smuggler. After trial, the RTC found Tulfo, et al. guilty of libel. The CA affirmed the decision. Issues: 1. Why was Borjal v. CA not applied to this case? 2. W/N the assailed articles are privileged. 3. W/N the assailed articles are fair commentaries. Ruling: 1. Borjal was not applied to this case because: a. Borjal stemmed from a civil action for damages based on libel, and was not a criminal case. b. The ruling in Borjal was that there was no sufficient identification of the complainant. c. The subject in Borjal was a private citizen, whereas in the present case, the subject is a public official. d. It was held in Borjal that the articles written by Art Borjal were fair commentaries on matters of public interest. 2. NO. The columns were unsubstantiated attacks on Atty. So, and cannot be countenanced as being privileged simply because the target was a public official. a. Even with the knowledge that he might be in error, even knowing of the possibility that someone else may have used Atty. Sos name, as Tulfo surmised, he made no effort to verify the information given by his

source or even to ascertain the identity of the person he was accusing. b. Although falsity of the articles does not prove malice, the existence of press freedom must be done consistent with good faith and reasonable care. This was clearly abandoned by Tulfo when he wrote the subject articles. This is no case of mere error or honest mistake, but a case of a journalist abdicating his responsibility to verify his story and instead misinforming the public. c. Tulfo had written and published the articles with reckless disregard of whether the same were false or not. The test laid down is the reckless disregard test, and Tulfo failed to meet that test. d. Evidence of malice: The fact that Tulfo published another article lambasting Atty. So after the commencement of an action. Tulfo did not relent nor did he pause to consider his actions, but went on to continue defaming Atty. So. This is a clear indication of his intent to malign Atty. So, no matter the cost, and is proof of malice. 3. NO. Good faith is lacking, as Tulfo failed to substantiate or even attempt to verify his story before publication. a. The provided no details o the acts committed by the subject. They are plain and simple baseless accusations, backed up by the word of one unnamed source. b. Not fair or true because fair is defined as having the qualities of impartiality and honesty. True is defined as comfortable to fact; correct; exact; actual; genuine; honest. Tulfo failed to satisfy these requirements, as he did not do research before making his allegations, and it has been shown that these allegations were baseless. The articles are not fair and true reports, but merely wild accusations. Velasco, Jr., J:

Elements of fair commentary (to be considered privileged): a. That it is a fair and true report of a judicial, legislative, or other official proceedings which are not of confidential nature, or of a statement, report, or speech delivered in said proceedings, or of any other act performed by a pulic officer in the exercise of his functions; b. That it is made in good faith; c. That it is without any comments or remarks. Journalists may be allowed an adequate margin of error in the exercise of their profession, but this margin does not expand to cover every defamatory or injurious statement they may make in the furtherance of their profession, nor does this margin cover total abandonment of responsibility. The mere fact that the subject of an article is a public figure or a matter of public interest does not mean it is a fair commentary within the scope of qualified privileged communication, which would automatically exclude the author from liability. The confidentiality of sources and their importance to journalists are accepted and respected. What cannot be accepted are journalists making no efforts to verify the information given by a source, and using that unverified information to throw wild accusations and besmirch the name of possibly an innocent person. Journalists have a responsibility to report the truth, and in doing so must at least investigate their stories before publication, and be able to back up their stories with proof. Journalists are not storytellers or novelists who may just spin tales out of fevered imaginings, and pass them off as reality. There must be some foundation to their reports; these reports must be warranted by facts. Freedom of expression as well as freedom of the press may not be unrestrained, but neither must it be reined in too harshly.

Obiter 1: It may be clich that the pen is mightier than the sword, but in this particular case, the lesson to be learned is that such a mighty weapon should not be wielded recklessly or thoughtlessly, but always guided by conscience and careful thought. Obiter 2: A robust and independently free press is doubtless one of the most effective checks on government power and abuses. Hence, it behooves government functionaries to respect the value of openness and refrain from concealing from media corruption and other anomalous practices occurring within their backyard. On the other hand, public officials also deserve respect and protection against false innuendoes and unfounded accusation of official wrongdoing from an abusive press. As it were, the law and jurisprudence on libel heavily tilt in favor of press freedom. The common but most unkind perception is that government institutions and their officers and employees are fair game to official and personal attacks and even ridicule. And the practice on the ground is just as disconcerting. Reports and accusation of official misconduct often times merit front page or primetime treatment, while defenses set up, retraction issued, or acquittal rendered get no more, if ever, perfunctory coverage. The unfairness needs no belaboring. The balm of clear conscience is sometimes not enough.

NEW YORK TIMES vs. SULLIVAN

FACTS: A full-page advertisement came out in the New York Times on March 29, 1960 which talked about the non-violent demonstrations being staged by Southern Negro students in positive affirmation of the right to live in human dignity as guaranteed in the Constitution and the Bill of Rights signed at the bottom by the Committee to Defend Martin Luther King and the Struggle for Freedom in the South L.B. Sullivan, the Commissioner of Public Affairs of Montgomery, Alabama, whose duties include supervision of the Police and Fire Department, brought a civil libel suit against those those who came out with the ad (4 Negro clergymen) and the NY Times Company. o Basis of the suit was statements in the text of the ad saying rd in the 3 par. that after students sang My Country, Tis of Thee on the State Capitol steps their leaders were expelled from school, policemen armed with shotguns and tear gas ringed the State College Campus, their dining hall was padlocked to starve them when the student body protested th and in the 6 par. that again and again the Southern violators have answered Dr. Kings peaceful protest with violence and intimidation going on to cite instances in which They have done this (e.g. They have assaulted his person). Neither of these statements mentions the respondent by rd name but he argues that the word police in the 3 par referred to him as Commissioner who supervised the Police th Department and that the word They used in the 6 par would be equated with the ones did the other described acts and hence be read as accusing the Montgomery police and therefore him, of answering Dr. Kings protests with violence and intimidation.

Once libel per se has been established the defendant has no defense as to stated facts unless he can persuade the jury that they were true in their particulars. Unless he can discharge the burden of proving truth, general damages are presumed and may be awarded w/o proof of pecuniary injury.

ISSUE: 1. W/N the rule of liability (regarding libel per se) regarding an action brought by a public official against critics of his official conduct abridges the freedom of speech and of the press that is guaranteed st th by the 1 and 14 Amendments. YES a. W/N the advertisement forfeits the protection guaranteed to free speech and the press by the falsity of some of its factual statements and by its alleged defamation of respondent. NO The maintenance of the opportunity for free political discussion to the end that govt may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system.

Factual error of statement: Authoritative interpretations of the First Amendment guarantees have refused to recognize an exception for any test of truth especially one that puts the burden of proving truth on the speaker. Cases which impose liability for erroneous reports of the political conduct of officials reflect the obsolete doctrine that the governed must not criticize their governors. The interest of the public outweighs the interest of any other individual. The protection of the public requires not merely discussion, but information. Errors of fact are inevitable. Whatever is added to the field of libel is taken from the field of free debate. A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions--and to do so on pain of libel judgments virtually unlimited in amount--leads to a comparable 'self-censorship.' Allowance of the defense of truth, with the burden of proving it on the defendant, does not mean that only false speech will be deterred. o Under such a rule, would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so. They tend to make only statements which 'steer far wider of the unlawful zone. The rule thus dampens the vigor and limits the variety of public

Trial judge submitted the case to the jury under instructions that the statements made were libelous per se, which implies legal injury from the bare fact of publication itself, and were not privileged therefore the only things left to be proven are whether petitioners published the ad and whether the statements were made of and concerning respondent. trial judge found for Sullivan, sustained by the Alabama SC A publication is libelous per se if the words tend to injure a person in his reputation or to bring him in public contempt this standard is met if the words are such as to injure him in his public office, impute misconduct to him in his office, or want of official integrity.

debate. It is inconsistent with the First and Fourteenth Amendments.

Reference to respondent in the ads:

Defamatory character: Criticism of their official conduct does not lose its constitutional protection merely because it is effective criticism and hence diminishes their official reputations. If neither factual error nor defamatory content suffices to remove the constitutional shield from criticism of official conduct, the combination of the two elements is no less inadequate.

Evidence is incapable of supporting conclusion that statements were made of and concerning respondent. No reference to respondent was made either by name or official position. None of the statements made suggested any basis for the belief that respondent was himself attached beyond the bare fact that he was in overall charge of the Police Department.

With regard to damages: General and punitive damages must be differentiated and since the judge did not instruct the jury to differentiate it would then be impossible to know which one they awarded and if adequate proof was presented warranting such an award of damages. Because of this uncertainty in addition to the those discussed above, the judgment must be reversed and remanded.

When an article is considered privileged: Where an article is published and circulated among voters for the sole purpose of giving what the defendant believes to be truthful information concerning a candidate for public office and for the purpose of enabling such voters to cast their ballot more intelligently, and the whole thing is done in good faith and without malice, the article is privileged, although the principal matters contained in the article may be untrue in fact and derogatory to the character of the plaintiff; and in such a case the burden is on the plaintiff to show actual malice in the publication of the article. Privilege for criticism of public official is appropriately analogues to the protection accorded a public official when he is sued for libel by a private citizen. Actual malice must be proved. o Proof of actual malice should be presented

In cases where that line must be drawn, the rule is that we examine for ourselves the statements in issue and the circumstances under which they were made to see whether they are of a character which the principles of the First Amendment, as adopted by the Due Process Clause of the Fourteenth Amendment, protect. We must make an independent examination of the whole record, so as to assure ourselves that the judgment does not constitute a forbidden intrusion on the field of free expression. Proof showing actual malice not sufficiently shown to support judgment. On the part of the NY Times, statement does not indicate malice at the time of publication and even if the ad was not substantially correct the opinion presented therein was a reasonable one and there is no evidence to impeach the good faith of the Times in publishing it.

DENNIS vs. U.S. FACTS: Eugene Dennis and others were convicted of conspiring to organize the Communist Party of the United States as a group to teach and advocate the overthrow of the Government of the United States by force and violence in violation of the conspiracy provisions of the Smith Act-- sec 2 and 3 of the Smith Act, 18 U.S.C.A. In this certiorari they assail the constitutionality of this said act alleging that it violates their freedom of speech and that it is void for indefiniteness/vagueness. ISSUES: 1. WON sec 2 or 3 of the Smith Act inherently or as construed and applied in the instant case, violates the First Amendment and other provisions of the Bill of Rights no. 2. WON either s 2 or s 3 of the Act, inherently or as construed and applied in the instant case, violates the First and Fifth Amendments because of indefiniteness. no HELD: Sections 2 and 3 of the Smith Act do not violate the 1st amendment and other provisions of the Bill of Rights, or the 1st and 4th amendments for indefiniteness. Petitioners intended to overthrow the Government of the US as speedily as the circumstances would permit. Conspiracy to organize the Communist Party and tot each and advocate the overthrow of the government of the US by force and violence created a clear and present danger. Convictions affirmed. RATIO: 1. Sections 2 and 3 of the Smith Act provide as follows: Sec. 2. (a) It shall be unlawful for any person-(1) to knowingly or willfully advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence, or by the assassination of any officer of any such

government; (2) with intent to cause the overthrow or destruction of any government in the United States, to print, publish, edit, issue, circulate, sell, distribute, or publicly display any written or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence; (3) to organize or help to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any government in the United States by force or violence; or to be or become a member of, or affiliate **861 with, any such society, group, or assembly of persons, knowing the purposes thereof. (b) For the purposes of this section, the term government in the United States means the Government of the United States, the government of any State, Territory, or possession of the United States, the government of the District of Columbia, or the *497 government of any political subdivision of any of them. Sec. 3. It shall be unlawful for any person to attempt to commit, or to conspire to commit, any of the acts prohibited by the provisions of * * * this title.

The general goal of the communist party is to achieve a successful overthrow of the existing order by force and violence Purpose of the statute: to protect the existing government not from change by peaceable, lawful and constitutional means, but from change by violence, revolution and terrorism. argument that there is a right to rebellion against dictatorial governments is without force where the existing structure of the government provides for peaceful and orderly change. Petitioners contend that the Act prohibits academic discussion of the merits of Marxism-Leninism, that it stifles ideas and is contrary to all concepts of a free speech and a free press. The court held that the language of the Smith Act is directed at advocacy not discussion. Congress did not intend to eradicate the free discussion of

political theories, to destroy the traditional rights of Americans to discuss and evaluate ideas without fear of governmental sanction. Rather Congress was concerned with the very kind of activity in which the evidence showed these petitioners engaged. Re free speech: basis of the First Amendment is the hypothesis that speech can rebut speech, propaganda will answer propaganda, free debate of ideas will result in the wisest governmental policies. Court have recognized that this is not an unlimited, unqualified right, but that the societal value of speech must, on occasion, be subordinated to other values and considerations. Justice Holmes stated that 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. The constitutionality of the statute is adjudged y whether or not it is reasonable. Since it was entirely reasonable for a state to attempt to protect itself from violent overthrow the statute was perforce reasonable. wherever speech was the evidence of the violation, it was necessary to show that the speech created the clear and present danger of the substantive evil which t he legislature had the right to prevent. Courts interpretation of the 1st amendment: (The First) Amendment requires that one be permitted to believe what he will. It requires that one be permitted to advocate what he will unless there is a clear and present danger that a substantial public evil will result therefrom. However, speech is not an absolute, above and beyond control by the legislature when its judgment, subject to review here, is that certain kinds of speech are so undesirable as to warrant criminal sanction. This case warrants a restriction of speech because overthrow of the Government by force and violence is certainly a substantial enough interest for the Government to limit speech. Indeed, this is the ultimate value of any society, for if a society cannot protect its very structure from armed internal attack, it must follow that no subordinate value can be protected.

As to the meaning of clear and present danger, court adopts the rule by Chief Justice Hand. Chief Judge Learned Hand, writing for the majority below, interpreted the phrase as follows: 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, the requisite danger existed the petitioners activities were from 1945-48 (formation of a highly organized conspiracy) when there was inflammable nature of world conditions, touch-and-go relationship of the US with other countries. Court is convinced that these satisfy convictions. It is the existence of the conspiracy which creates the danger; we cannot bind the Government to wait until the catalyst is added.

2. Re vagueness: arguments by petitioners are nonpersuasive We agree that the standard as defined is not a neat, mathematical formulary. Like all verbalizations it is subject to criticism on the score of indefiniteness. But petitioners themselves contend that the verbalization, clear and present danger is the proper standard. Court has attempted to sum up the factors that are included within its scope

Brandenburg vs. Ohio Facts: The Ohio Criminal Syndicalism Act (the Act) made it illegal to advocate crime, sabotage, violence or . . . terrorism as a means of accomplishing industrial or political reform. It also prohibited assembling with any society, group, or assemblage or persons formed to teach or advocate the doctrines of criminal syndicalism. The Defendant, a leader in the Ku Klux Klan, made a speech promoting the taking of revenge against the government if it did not stop suppressing the white race and was therefore convicted under the Act. Issue: Did the Statute, prohibiting public speech that advocated certain violent activities, violate the Defendants right to free speech under the First and Fourteenth Amendments of the United States Constitution (Constitution)? Held: Yes. (Per Curiam) The Act properly made it illegal to advocate or teach doctrines of violence, but did not address the issue of whether such advocacy or teaching would actually incite imminent lawlessness. The mere abstract teaching of the need or propriety to resort to violence is not the same as preparing a group for violent action. Because the statute failed to provide for the second part of the test it was overly broad and thus in violation of the First Amendment of the Constitution. Concurrence: Justice Hugo (J. Black) I agree with Justice William Douglas (J. Douglas) in his concurring opinion of this case that the clear and present danger doctrine should have no place in our interpretation of the First Amendment of the Constitution. J. Douglas argues that the how the clear and present danger

test has been applied in the past is disconcerting. First, the threats to which it was applied were often loud but puny. Second, the test was so perverted as to make trial of those teachers of Marxism all out political trials, which had the effect of eroding substantial parts of the First Amendment of the Constitution. Discussion: In order for incitement to violence speech to be constitutionally barred, Brandenburg sets a new standard. The language must (1) expressly advocate violence; (2) advocate immediate violence and (3) relate to violence likely to occur.

Virginia v. Black 538 U.S. 343 (2003)

even if the speaker doesnt actually intend to follow through. Intimidation is a type of true threat. In R.A.V. we held that certain types of content discrimination do not violate the 1st Amendment. The Virginia statute doesnt single out speech on one specific topic, it punishes cross burning regardless of the motive behind it. Additionally, cross burning is not directed only at religious or racial minorities. Just as a state may prohibit the most obscene language, a state may ban the form of intimidation most likely to cause fear of harm. Based on the history of cross burning signaling impending violence, a ban on cross burning with the intent to intimidate does not violate the 1st Amendment. The prima facie evidence provision is unconstitutional because it removes the element necessary for the state to convict someone for burning a cross with intent to intimidate. The provision allows the state to convict a person sonly on the fact that the individual burned a cross, regardless of the particular facts. This blurs the lines between cross burning as intimidation and as other forms (political, artistic, etc) speech, which unacceptably suppress free expression. Souter, with Kennedy and Ginsburg, concurring in part, dissenting in part: No exception under R.A.V. should make this statute constitutional. Regardless of whether any of the respondents were convicted under the prima facie provision, the statute in effect at the time of the activities contained an invalid content-based distinction. Severing the provision now doesnt not eliminate the unconstitutionality of the statute at the time the acts were committed. Thomas, dissenting: The statute here is not about speech, but conduct. The law was passed by segregationalists who didnt want to prohibit the segregationalist/racist message, but intolerable violence and terrorism. An individual or group cannot terrorize and intimidated to make a political point. Therefore, there is no need to analyze this statute under 1st Amendment tests. The majority feels the provision allows the jury to infer intent to intimidate from the act itself. This does not present a constitutional problem despite worries that the provision allows the state to arrest, try, and convict a person base soley on the act. First, it is unclear that the inference comes in prior to the jury instructions. Second, the inference is rebuttable and the intent to intimidate must still be proven beyond a reasonable doubt.

Facts: Black burned a cross on private property during a KKK rally that the owner of the property consented to. The cross burning was observable from the road and neighboring properties. Elliot and OMara planted a cross on a black mans property and burned it to get back at the black man for inquiring to Elliots mother about gun shots that came from the Elliot property. Elliot and OMara were not part of the KKK. Historically in the US, the person at whom a burning cross is directed, is being threated that if they dont comply with the Klans wishes, they will face the Klans wrath. Procedural History Blacks jury was instructed that burning a cross was sufficient evidence from which to infer intent to intimidate. Respondents were convicted on the cross burning statute. Issues: May a state ban cross burning with the intent to intimidate? Is a statute that labels any cross burning as prima facie evidence of such intent constitutional? Applicable Rules of Law Cross burning statute makes it unlawful for a person burn a cross, with intent to intimidate, on anothers property or a public place. Any such burning is considered prima facie evidence of intent to intimidate. Holdings & Court Order: Yes, and No. Reasoning (OConnor) First amendment protections are not absolute. The 1st Amendment permits restrictions on free speech in limited categories where the social benefit from the speech is outweighted by social interests in peace and morality. A state may penalize the use of words which cause injury or are intended to and likely to incite immediate disturbances of the peace, such as fighting words. Additionally, a state may ban true threats, which are serious communicated expressions of intent to direct unlawful violence at an individual or group,

ROTH vs. U.S.

FACTS: Roth (New York) is in the business of publishing & selling books, photographs & magazines. He used circulars which he mailed in order to advertise. He was convicted on the basis of a federal obscenity statute for mailing obscene circulars & advertisements. Alberts (Los Angeles) operates a mail-order business. He was charged for violation of a California Penal Statute, for "lewdly keeping for sale obscene & indecent books".

this history, it is apparent that the unconditional phrasing of the First Amendment was not intended to protect every utterance. This phrasing did not prevent this Court from concluding that libelous utterances are not within the area of constitutionally protected speech. Beauharnais v. Illinois All ideas having even the slightest redeeming social importance - unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion - have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. re: petitioner's contention on the presence of "clear & present danger of antisocial conduct" "Libelous utterances not being within the area of constitutionally protected speech, it is unnecessary, either for us or for the State courts, to consider the issues behind the phrase `clear and present danger.' Certainly no one would contend that obscene speech, for example, may be punished only upon a showing of such circumstances. Libel, as we have seen, is in the same class. Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period therefore vital that the standards for judging obscenity safeguard the protection of freedom of speech and press for material which does not treat sex in a manner appealing to prurient interest

Petitioners: obscenity statutes offend the constitutional guaranties because they punish incitation to impure sexual thoughts, not shown to be related to any overt antisocial conduct which is or may be incited in the persons stimulated to such thoughts. 2.the constitutional guaranties are violated because convictions may be had without proof either that obscene material will perceptibly create a clear and present danger of antisocial conduct, or will probably induce its recipients to such conduct.

ISSUES: 1. In Roth-w/n the federal obscenity statute is in violation of the 1st Amendment; w/n the power to punish speech and press offensive to decency and morality is in the States alone, so that the federal obscenity statute violates the Ninth and Tenth Amendments (raised in Roth 2. In Alberts- w/n the obscenity provisions fo the Cal Penal Code invade freedom of speech & press as they may be incorporated with the liberty protected from state action by the 14th Amend; w/n Congress, by enacting the federal obscenity statute, under the power delegated by Art. I, 8, cl. 7, to establish post offices and post roads, pre-empted the regulation of the subject matter 3. w/n these statutes violate due process for vagueness

Standard: 1.Regina v Hicklin: effect of a single excerpt of the supposedly "obscene" material upon particularly susceptibel persons- rejected 2. whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest- proper standard. re: lack of reasonable ascertainable standards of guilt whic violates due process; words are not sufficiently precise because they do not mean the same thing to all people, all the time, everywhere- lack of precision is not itself offensive to the requirements of due process. the Constitution does not require impossible standards; all that is required is that the language "conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices" United States v. Petrillo 3. the second issues in both Roth & Alberts fail because of the holding initially stated. Judgment affirmed.

HELD: Obscenity is not an utterance that is within the defintion of protected speech & press.

RATIO: Numerous opinions of the court have held that obscenity is not covered by the guarantee on the freedom of speech & press. Ex parte Jackson; United States v. Chase; Near v. Minnesota. Though this freedom may be in the consitution, it is not absolute. As early as 1712, Massachusetts made it criminal to publish "any filthy, obscene, or profane song, pamphlet, libel or mock sermon" in imitation or mimicking of religious services. Thus, profanity and obscenity were related offenses. In light of

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-7491 August 8, 1955 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GO PIN, defendant-appellant. J. Perez Cardenas and Castao and Ampil for defendant. Office of the Solicitor General Querube C. Makalintal and Solicitor Jesus A. Avancea for appellee. MONTEMAYOR, J.: Go Pin, an alien and a Chinese citizen, was charged with a violation of Article 201 of the Revised Penal Code for having exhibited in the City of Manila at the Globe Arcade, a recreation center, a large number of one-real 16-millimeter films about 100 feet in length each, which are allegedly indecent and/or immoral. At first, he pleaded not guilty of the information but later was allowed by the court to change his plea to that of guilty which he did. Not content with the plea of guilty the trial court had the films in question projected and were viewed by it in order to evaluate the same from the standpoint of decency and morality. Thereafter, and considering the plea of guilty entered by the accused, and the fact that after viewing the films the trial court noted only a slight degree of obscenity, indecency and immorality in them, it sentenced the appellant to 6 months and 1 day of prision correcciconal and to pay a fine of P300, with subsidiary imprisonment in case of insolvency, and to pay the costs. He is now appealing from the decision. Go Pin does not deny his guilt but he claims that under the circumstances surrounding the case, particularly the slight degree of obscenity, indecency and immorality noted by the court in the films, the prison sentence should be eliminated from the penalty imposed. His counsel brings to our attention some authorities to the effect that paintings and pictures of women in the nude, including sculptures of that kind are not offensive because they are made and presented for the sake of art. We agree with counsel for appellant in part. If such pictures, sculptures and paintings are shown in art exhibits and art galleries for the cause of art, to be viewed and appreciated by people interested in art, there would be no offense committed. However, the

pictures here in question were used not exactly for art's sake but rather for commercial purposes. In other words, the supposed artistic qualities of said pictures were being commercialized so that the cause of art was of secondary or minor importance. Gain and profit would appear to have been the main, if not the exclusive consideration in their exhibition; and it would not be surprising if the persons who went to see those pictures and paid entrance fees for the privilege of doing so, were not exactly artists and persons interested in art and who generally go to art exhibitions and galleries to satisfy and improve their artistic tastes, but rather people desirous of satisfying their morbid curiosity and taste, and lust, and for love for excitement, including the youth who because of their immaturity are not in a position to resist and shield themselves from the ill and perverting effects of these pictures. Before rendering sentence the trial court asked the prosecuting attorney for this recommendation and said official recommendation that "considering that the accused Go Pin is an alien who is supposed to maintain a high degree of morality while he is in the Philippines", and "considering that he engaged in a very nefarious trade, which degenerates the moral character of our youth, who are usually the regular customers of his trade", he recommended that appellant be sentenced to 2 years imprisonment and a fine of P300. Notwithstanding this recommendation, the trial court as already said, probably considering its opinion that the pictures were not so obscene, indecent and immoral but only slightly so, gave appellant only 6 months and 1 day of prision correccional in addition to P300 fine. The penalty imposed by the trial court is within the range provided by Article 201 of the Revised Code. We are satisfied that in imposing the penalty the trial court made use of its sound discretion, and we find no reason for modifying the said sentence. The Solicitor General in his brief even urges that we recommend to the proper authorities that deportation proceedings be instituted against appellant as an undesirable alien. The trial court could have done this but did not do so, believing perhaps that it was warranted. We repeat that we do not feel justified in interfering with the discretion of the trial court in the imposition of the sentence in this case. In view of the foregoing, the decision appealed from is affirmed, with costs.

Primicias vs. Fugoso [L-18000. Jan 27, 1948] Doctrine: Clear and Present Danger Test, Freedom of Assembly and Expression FACTS: This case is an action of mandamus instituted by petitioner Cipriano Primicias, manager of the Coalesced Minority Parties, against respondent Manila City Mayor, Valeriano Fugoso, to compel the latter to issue a permit for the holding of a public meeting at the Plaza Miranda on Nov 16, 1947. The petitioner requested for a permit to hold a peaceful public meeting. However, the respondent refused to issue such permit because he found that there is a reasonable ground to believe, basing upon previous utterances and upon the fact that passions, specially on the part of the losing groups, remains bitter and high, that similar speeches will be delivered tending to undermine the faith and confidence of the people in their government, and in the duly peace and a disruption of public order. Respondent based his refusal to the Revised Ordinances of 1927 prohibiting as an offense against public peace, and penalizes as a misdemeanor, "any act, in any public place, meeting, or procession, tending to disturb the peace or excite a riot; or collect with other persons in a body or crowd for any unlawful purpose; or disturb or disquiet any congregation engaged in any lawful assembly." Included herein is Sec. 1119, Free use of Public Place. ISSUE: Whether or not the Mayor has the right to refuse to issue permit hence violating freedom of assembly. HELD: The answer is negative. Supreme Court states that the freedom of speech, and to peacefully assemble and petition the government for redress of grievances, are fundamental personal rights of the people recognized and guaranteed by the constitution. However, these rights are not absolute. They can be regulated under the states police power that they should not be injurious to the equal enjoyment of others having equal rights, nor to the rights of the community or society. The Court holds that there can be 2 interpretations of Sec. 1119: 1) the Mayor of the City of Manila is vested with unregulated discretion to grant or refuse, to grant permit for the holding of a lawful assembly or meeting, parade, or procession in the streets and other public places of the City of Manila; and 2) The right of the Mayor is subject to reasonable discretion to determine or specify the streets or public

places to be used with the view to prevent confusion by overlapping, to secure convenient use of the streets and public places by others, and to provide adequate and proper policing to minimize the risk of disorder. The Court favored the second construction since the first construction is tantamount to authorizing the Mayor to prohibit the use of the streets. Under our democratic system of government no such unlimited power may be validly granted to any officer of the government, except perhaps in cases of national emergency. It is to be noted that the permit to be issued is for the use of public places and not for the assembly itself. The Court holds that the assembly is lawful and thus cannot be struck down. Fear of serious injury cannot alone justify suppression of free speech and assembly. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one . The fact that speech is likely to result in some violence or in destruction of property is not enough to justify its suppression. There must be the probability of serious injury to the state. PETITION IS GRANTED.

PHIL. BLOOMING MILLS EMPLOYEES ORG. vs. PHIL. BLOOMING MILLS CO., INC.

demonstration. The union panel countered that it was rather too late to change their plans inasmuch as the Malacaang demonstration will be held the following morning. 5. Because the petitioners and their members numbering about 400 proceeded with the demonstration despite the pleas of the Company that the first shift workers should not be required to participate in the demonstration and that the workers in the second and third shifts should be utilized for the demonstration from 6 A.M. to 2 P.M. on March 4, 1969, a charge against petitioners and other employees who composed the first shift was filed in the Court of Industrial Relations (CIR), charging them with a "violation of Section 4(a)-6 in relation to Sections 13 and 14, as well as Section 15, all of Republic Act No. 875, and of the CBA providing for 'No Strike and No Lockout.' 6. In their answer, petitioners claim that they did not violate the existing CBA because they gave the Company prior notice of the mass demonstration on March 4, 1969; that the said mass demonstration was a valid exercise of their constitutional freedom of speech against the alleged abuses of some Pasig policemen; and that their mass demonstration was not a declaration of strike because it was not directed against the respondent firm. 7. The CIR found the PBMEO guilty of bargaining in bad faith and the leaders of the union as directly responsible for perpetrating the said unfair labor practice and were, as a consequence, considered to have lost their status as employees of the respondent Company. 8. Petitioners filed with the CIR a petition for relief from the CIR dismissal order, on the ground that their failure to file their motion for reconsideration on time was due to excusable negligence and honest mistake committed by the president of the Union and of the office clerk of their counsel. Without waiting for any resolution on their petition for relief, petitioners filed a notice of appeal with the SC.

FACTS: 1. Philippine Blooming Mills Employees Organization (PBMEO) is a legitimate labor union composed of the employees of the respondent Philippine Blooming Mills Co., Inc. The leaders of the union that on March 1, 1969, they decided to stage a mass demonstration at Malacaang on March 4, 1969, in protest against alleged abuses of the Pasig police, to be participated in by the workers in the first shift (from 6 A.M. to 2 P.M.) as well as those in the regular second and third shifts (from 7 A.M. to 4 P.M. and from 8 A.M. to 5 P.M., respectively); and that they informed the Company of their proposed demonstration. 2. On March 2, 1969 the company learned of the projected mass demonstration at Malacaang. A meeting between the members of the union and the Company was called by the Company the next day. The Company asked the union panel to confirm or deny said projected mass demonstration at Malacaang on March 4. PBMEO confirmed the planned demonstration and stated that the demonstration cannot be cancelled because it has already been agreed upon in the meeting. PBMEO explained further that the demonstration has nothing to do with the Company because the union has no quarrel or dispute with Management. 3. The Management informed PBMEO that the demonstration is an inalienable right of the union guaranteed by the Constitution but emphasized, however, that any demonstration for that matter should not unduly prejudice the normal operation of the Company. The Company warned the PBMEO representatives that workers who belong to the first and regular shifts, who without previous leave of absence approved by the Company, the officers present who are the organizers of the demonstration, who shall fail to report for work the following morning shall be dismissed, because such failure is a violation of the existing CBA and, therefore, would be amounting to an illegal strike. 4. At about 5:00 P.M. on March 3, 1969, another meeting was convoked by the Company wherein it reiterated and appealed to the PBMEO representatives that while all workers may join the Malacaang demonstration, the workers for the first and regular shift of March 4, 1969 should be excused from joining the demonstration and should report for work; and thus utilize the workers in the 2nd and 3rd shifts in order not to violate the provisions of the CBA, particularly Article XXIV: NO LOCKOUT NO STRIKE'. All those who will not follow this warning of the Company shall be dismissed; the Company reiterated its warning that the officers shall be primarily liable being the organizers of the mass

ISSUE: WON the CIR was correct in dismissing the officers of the union for unfair labor practice for organizing and pushing through with the rally at Malacaang despite the pleas of the company for workers who belong to st the 1 shift to report to work.

DECISION: 1. The order of the CIR was declared null and void. 2. The SC ordered the reinstatement of eight (8) union leaders who were dismissed, with full back pay from the date of their separation

from the service until re instated, minus one day's pay and whatever earnings they might have realized from other sources during their separation from the service.

RATIO: 1. The demonstration held by petitioners before Malacaang was against alleged abuses of some Pasig policemen, not against their employer. The demonstration was purely and completely an exercise of their freedom of expression in general and of their right of assembly and petition for redress of grievances in particular before appropriate governmental agency, the Chief Executive, against the police officers of the municipality of Pasig. The freedoms of expression and of assembly as well as the right to petition are included among the immunities reserved by the sovereign people, in the rhetorical aphorism of Justice Holmes, to protect the ideas that we abhor or hate more than the ideas we cherish; or as Socrates insinuated, not only to protect the minority who want to talk, but also to benefit the majority who refuse to listen. The rights of free expression, free assembly and petition, are not only civil rights but also political rights essential to man's enjoyment of his life, to his happiness and to his full and complete fulfillment. Thru these freedoms the citizens can participate not merely in the periodic establishment of the government through their suffrage but also in the administration of public affairs as well as in the discipline of abusive public officers. The citizen is accorded these rights so that he can appeal to the appropriate governmental officers or agencies for redress and protection as well as for the imposition of the lawful sanctions on erring public officers and employees. The petitioners exercised their civil and political rights for their mutual aid protection from what they believe were police excesses. As matter of fact, it was the duty of herein private respondent firm to protect herein petitioner Union and its members fro the harassment of local police officers. It was to the interest herein private respondent firm to rally to the defense of, and take up the cudgels for, its employees, so that they can report to work free from harassment, vexation or peril and as consequence perform more efficiently their respective tasks enhance its productivity as well as profits. Herein respondent employer did not even offer to intercede for its employees with the local police. In seeking sanctuary behind their freedom of expression well as their right of assembly and of petition against alleged persecution of local 6.

officialdom, the employees and laborers of herein private respondent firm were fighting for their very survival, utilizing only the weapons afforded them by the Constitution the untrammelled enjoyment of their basic human rights. The pretension of their employer that it would suffer loss or damage by reason of the absence of its employees from 6 o'clock in the morning to 2 o'clock in the afternoon, is a plea for the preservation merely of their property rights. Such apprehended loss or damage would not spell the difference between the life and death of the firm or its owners or its management. The employees' pathetic situation was a stark reality abused, harassment and persecuted as they believed they were by the peace officers of the municipality. As above intimated, the condition in which the employees found themselves vis-a-vis the local police of Pasig, was a matter that vitally affected their right to individual existence as well as that of their families. To regard the demonstration against police officers, not against the employer, as evidence of bad faith in collective bargaining and hence a violation of the collective bargaining agreement and a cause for the dismissal from employment of the demonstrating employees, stretches unduly the compass of the collective bargaining agreement, is "a potent means of inhibiting speech" and therefore inflicts a moral as well as mortal wound on the constitutional guarantees of free expression, of peaceful assembly and of petition. The mass demonstration staged by the employees on March 4, 1969 could not have been legally enjoined by any court, such an injunction would be trenching upon the freedom expression of the workers, even if it legally appears to be illegal picketing or strike. The respondent Court of Industrial Relations in the case at bar concedes that the mass demonstration was not a declaration of a strike "as the same not rooted in any industrial dispute although there is concerted act and the occurrence of a temporary stoppage work." The respondent company is the one guilty of unfair labor practice. Because the refusal on the part of the respondent firm to permit all its employees and workers to join the mass demonstration against alleged police abuses and the subsequent separation of the eight (8) petitioners from the service constituted an unconstitutional restraint on the freedom of expression, freedom of assembly and freedom petition for redress of grievances.

2.

3.

7.

4.

8.

5.