Consti 2 - Finals

EH 406 | Constitutional Law II Finals
Atty. Renato Galeon

Doliente | Malazarte | Menil | Torres
CUSTODIAL INVESTIGATION CONFINEMENT OR EX- COMMUNICADO: When the
person detained will be put in a dark room all by
Miranda Rights for persons under Custodial Investigation is not himself.
considered valid if it is done without the assistance of a lawyer.
Are those the only rights or is there no other law w/c confers
additional rights of the person detained?
RIGHT TO REMAIN SILENT: When you are detained
you have the right not to answer any interrogation that is -R.A 7438 which provides that a person arrested shall have
conducted by the Police authorities. Except when you are the right to confer with any of his immediate family, family
merely asked about your name or anything that pertains only doctor and *not clear. IMMEDIATE FAMILY includes,
to your identification. However, if there are questions tending spouse, parents. Fiancé, grandparents/ children, brothers/
to prove your possible involvement in a crime, then that’s when sisters, Uncle/ Aunt and Niece/ Nephew.
you invoke your right to remain silent.
What happens if police authorities’ extracted confession EJC at
that without the accused having been assisted by lawyer?
NOTE: Once you are already in detention, everything
you way will be used against you. -Plain and evident, any evidence obtained in violation of
Sec 17, Art 3 referring to the right of persons against self-
 RIGHT TO HAVE COMPETENT AND incrimination is inadmissible.
INDEPENDENT COUNSEL: It is further provided in
the constitution that when the person detained cannot SEC 12 (3), ART 3
afford a lawyer then he should be provided with a “Any confession or admission obtained in
lawyer for free. violation of this of Section 17 hereof shall be
inadmissible in evidence against him.”
NOTE: It is important that the counsel for the
accused is competent and independent meaning, Q: What happens if police authorities extracted an
capable of discharging his duties effectively. extrajudicial confession without the accused properly assisted
by a lawyer? Would that be admissible?
 RIGHT TO BE INFORMED OF HIS RIGHT TO
REMAIN SILENT AND TO HAVE A COUNSEL: A: The answer is plain and evident because the law
Reason for this is that how can a person detained is very clear. Sec 12(3), Article III provides that any
evidence obtained in violation of Sec 12, Article III as
invoke or waive such rights if in the first place he did
well as Sec. 17, Article III referring to the right against
not know that he have any. (THIS RIGHT CANNOT self-incrimination is inadmissible.
BE WAIVED)
Q: What’s gonna happen if the written extrajudicial
For waiver to be valid, it must be in writing signed by the confession or extrajudicial confession is decreed to be
person concerned, in the presence of the lawyer, and in the inadmissible? Would that necessary result in the acquittal of
absence of a lawyer, upon a valid waiver it needs to be the accused? Is it an absolute no or a conditional no? The
attested to by any of the parents, brothers or sisters, spouse, evidence is thrown out. The extrajudicial confession of the
municipal mayor, judge, among others. accused is inadmissible. Would that necessarily result in the
acquittal of the accused?
Q: Isn’t it rather ridiculous to require the presence of the
lawyer when the accused have already waived his right to A: where the excluded extrajudicial confession is the
have one? only evidence supposedly establishing the guilt of the
accused and that is inadmissible, then no doubt, the
-Reason is to insure that such waiver is done voluntarily, accused is entitled to an acquittal. But if that is not
equivocally and freely and for the accused to be informed the only evidence against the accused, or where
of the legal effect of such waiver. there are other evidence which could possibly point
out the culpability of the accused, then the accused
 PROHIBITION AGAINST EMPLOYMENT OF may still be convicted.
TORTURE, VIOLENCE, INTIMIDATION AND
THREAT. Example: accused committed a crime in the
presence of eye-witnesses. Then, he was arrested,
 PROHIBITION OF THE USE AND EMPLOYMENT he confined it to the police without or in violation of
OF SICK DETENTION PLACES OR SOLITARY his Miranda rights. So in that situation, even if his
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Atty. Renato Galeon
extrajudicial confession is excluded, there is a good accused without the assistance of a lawyer is declared to
chance that accused may still be convicted by the be inadmissible.
Court if the material-witnesses or material
witnesses would come and testify in the ensuing
trial. But if the excluded extrajudicial confession is Now, we will file the situation further. After the raid is
the in-all of the case or the only evidence against the
conducted, after the accused was made to sign a confiscation
accused, then accused, no doubt, is entitled to an
acquittal. That is, if the evidence is the only evidence
receipt which we know to be inadmissible, accused is already
against the accused be excluded with an brought to the police station where the station is required to
extrajudicial confession. sign the arrest report. Log book, “pirma diri that you were
arrested for illegal possession of shabu. You were booked for
I mentioned already that it is a requirement in law that for an allegedly illegally possessing shabu.”
extrajudicial confession of a person detained or arrested to be
admissible, it has to be in writing, signed in the presence of a Q: is that arrest report admissible if the accused signs the
lawyer, or in the absence of a lawyer or waiver, it has to be same without the assistance of a lawyer? Confiscation receipt
attested to the persons enumerated earlier. But that’s about is inadmissible, but how about the arrest report signed by the
accused without the presence of a lawyer and without a valid
extrajudicial confession.
waiver of the right? Would that arrest report be admissible?
Situation: How about if the accused is, for example, arrested
A: the answer is a reverberating yes. While arrest
because there is a search warrant against him and the police report is not an admission thereof. It is nothing but an
authorities conducted a search on his subject premises and it evidence that accused was already conducted to the
yielded a positive result, resulting in the arrest of the accused, police station where he is already detained. So it’s
but then the raiding team or the police officers, required the only an evidence where he was brought to the police
accused to sign the confiscation receipt. Let’s say for example, station, nothing more, nothing less. So there is no
the warrant is for the search and confiscation of shabu. After crime actually in having him sign the same even
the raid, it is found out that accused indeed is in possession of without the assistance of a lawyer.
shabu. And you can expect that whenever there is shabu or
anything that is considered illegal, the raiding team would That’s the ruling in the case of People v. Manzano GR
always prepare what is known as confiscation receipt; listing 836345 October 13, 1990.
down therein the incriminating evidence or objects that were
found or discovered in the course of the raid. Now let us But let us assume that the person is arrested for allegedly
assume that after the raid is conducted, after the accused is killing another person with the use of a gun. There is no
found to be in possession of shabu, the police officers had him confiscation receipt but he is brought to the police station
sign the confiscation receipt without him having been assisted where in the police station, he was made to undergo a paraffin
by a lawyer. testing where he would be required to place his hands on the
table and a wax will be poured in his hands to check if he is
Q: Is that confiscation receipt admissible where the accused is positive of gun-power residue. Such that, if the result of the
not yet interrogated. There is no question and answer therein. paraffin test is positive, then that can be used as an evidence
The police officers merely prepared the confiscation receipt and against him that he had fired a gun. If that would be negative,
once he was arrested, merely said “Oh, pirmahi.” Would that then that works for his favor.
receipt be admitted over the objection of the accused or can the
accused legally object to the admissibility of the receipt while Let’s assume that a paraffin test is done and that it turned out
he signed the same but without the assistance of a lawyer? to be positive that indeed, he fired a gun but the paraffin
testing is done without the assistance of a lawyer. Gi-picture-
A: that is not the result of the interrogation, but that is an pa para mugshot.
no doubt, that piece of evidence would be
incriminating. By signing the confiscation receipt, no
Q: Is the result of the paraffin testing and these mugshots
doubt, the accused therefor admits that this illegal
admissible where these things are done without the presence of
evidence or objects were taken from his possession.
the lawyer of the accused? If the result is positive, of course
So it amounts to an admission of guilt. Such that, it is
imperative for the accused to be assisted by a that would be prejudicial to the accused. But the same is done
lawyer. without having assistance of the lawyer, without him having
made to have his counsel. Would that be admissible? That’s no
longer a confiscation receipt.
This is the ruling in the case of People v. De Guzman 194
SCRA 206 where the confiscation receipt signed by the
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Atty. Renato Galeon
A: Yes, what is proscribed is the extraction of - It depends, where the excluded EJC is the only
confession without him having been afforded of his evidence supposedly tending to establish the guilt of
Miranda rights. And when we mentioned about the accused, if proved to be inadmissible, then no
confession, it is connected with mental activity. Of doubt he will be entitled to acquittal. But if that EJC is
course, if you sign the confiscation receipt, that also not the only evidence, which could possibly point out
involves mental activity whether you have to make a the culpability of the accused, then other evidence
decision whether you will sign the receipt or not. But may still be presented.
paraffin testing is nothing but a pure mechanical or Ex:
physical activity. So that is not the kind of confession Crime committed in the presence of material witnesses, then
that is prohibited under Sec 12, Article III of the 1987 he was arrested and by the police without afforded with his
Constitution. Miranda Rights. The EJC can be excluded as evidence, and
then the material witnesses would come testify at the
That is the ruling of the other case of People v. De ensuing trial. But if the excluded EJC is the only evidence
Guzman. against the accused, then no doubt is afforded to by
Miranda Rights.
Exclusionary Rule to Apply

Interpose a timely objection, if not complied, then the REQUIREMENTS, FOR EJC TO BE ADMISSIBLE
evidence will become admissible. In writing signed by him, in the presence of lawyer, if
not in their presence, attested to by their by any of the
Otherwise, where there is no objection, then such evidence or parents, brothers and sisters, spouse, municipal
extrajudicial confession, otherwise inadmissible would become mayor, judge, among others. (ENUMERATION IS
admissible. Then the rule of merisi would apply. EXCLUSIVE)
Let us move on with the discussion. SITUATION: You got detained, then there is a written
Situation: Let us assume that a person is arrested but then he extrajudicial confession for you to sign and execute and then
is duly afforded with his Miranda rights. He did not execute an you signed the same in the presence of a lawyer, is that valid
extrajudicial confession upon advice of the lawyer but there are even if you’re not assisted by your parents, spouse etc.?
other evidence supposedly tending to establish his guilt and
A: YES. Because those persons are required only to
the information is already filed in court.
attest in the absence of a lawyer and upon a valid
Q: At that stage, what right or what rights does that person waiver.
have where he is already afforded of his Miranda rights but
notwithstanding that, the police officers conceded with the SITUATION: There is a written extrajudicial confession signed
filing of Information? Does he have an additional right to by the accused but without the presence of a lawyer because
bail? There is prior pronouncement but Information is already there is no available lawyer in the place but the same is
out resulting in the issuance of a competent order because he attested to by any of the parents, spouse. Brother and sister,
is already detained. What is his right? etc., is that valid?
A: The right to bail. Such that where the offense is A: NO. there must be a valid waiver of a lawyer and
bailable, then he has a right to put up bail to secure without such, the attestation of all those people will
his temporary liberty.
not constitute a valid extrajudicial confession.
SEC 17, ART 3 Q: When can we invoke the so called MIRANDA RIGHTS?
“No person shall be compelled to be a witness
A: During custodial investigation or when the person
against himself.”
[INADMISSIBLE] is already arrested.
Classmate: if a private person will conduct the arrest can we
R.A. 7438, Sec 2 (d)
still invoke such rights?
An Extrajudicial Confession (EJC herein forward) that is
not compliant with the requirement therein is likewise A: No. because the Bill of Rights is directed only
decreed to be inadmissible. against the state.
If the written EJC is decreed to be inadmissible, will it result How about this practice of the law enforcement
to the acquittal of the accused? agencies to send out invitation letters to person who
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Atty. Renato Galeon
is suspected to have committed a crime to shed light took the witness stand and testify on the extrajudicial
on your possible involvement on any crime, does that confession of Molanos. Molanos, thru his lawyer
already amount to a custodial investigation? YES objected saying that the testimony of the police officer
under R.A 7438, so if you receive a so called is inadmissible because such confession was done
invitation letter then you can already invoke your when there was already custodial investigation but
MIRANDA rights. the state countered that at that time there was as yet
no formal investigation hence typically, according to
How about if a person is interrogated by the police the state there was no custodial investigation to
while the person is said to be a material witness to a
speak of and the state argued that MIRANDA rights
crime, can he invoke his MIRANDA rights while he is will only be availing to the person durong custodial
questioned by the police because this person investigation.
happened to have witnessed a commission of a
crime? NO because you are not the person who is Q: is Molanos’ confessiona admissible?
suspected in committing a crime you are merely a
witness to a crime. A: NO. the supreme court said in this case that while
it may be true that there was as yet no formal
How about investigations conducted by employers to interrogation yet the fact remain that Molanos was
employees suspected to have committed an infraction already arrested, he was already in the custody of
of its policy or even theft, is it necessary for the the law enforcer hence according to the supreme
employer to inform the employee of its MIRANDA court, MIRANDA RIGHTS will already be available to
rights? NO because that is not a custodial
the accused
investigation. Custodial investigation refers to an
investigation that is conducted by law enforcement ➢ PP Vs. Dela Cruz: Where a husband killed his wife,
agencies. the husband was arrested and then when he was
arrested he even volunteered to the Police Authorities
✓ Investigation is conducted by the Civil Service
the place where he buried remains of the wife. In the
Commission that is already considered a custodial
trial, the police officer who heard the confession of
investigation. So, if the respondent is an advocate
Dela Cruz testified to the confession of Dela Cruz.
before the CSC doesn’t have a lawyer the CSC is in
Dela Cruz objected saying that the testimony should
fact mandated to provide such with a lawyer.
be inadmissible because it pertains to a confession
When a person is already interrogated by a Police that was allegedly given when Dela Cruz was already
authority, then the person interrogated if he is under custodial investigation but the state again
interrogated as a suspect could already invoke his countered that there was no as yet formal
Miranda rights because in that situation there is already interrogation.
custodial investigation. Q: Was it admissible?
But problem arises when there is no formal A: No. because just he was already under arrest
interrogation that is being conducted
➢ PP vs Medina: This happened in the remote place of
➢ PP vs. Molanos: where Molanos was one of the Santol La Union, this involved raoe with homicide
suspect for supposedly killing their drinking buddy, involving a 15 yr. old girl. The investigation pointed
they were suspected as the culprits because of the out to Orgonio and Medina as the possible culprits so
statements of the material witnesses pointing to the they were summoned to appear before the police
fact that Molanos and one other were the last person authorities where they were invited for questioning but
who were with the deceased before the killing. Acting after conducting the interrogation they were released
on that information, the police authorities arrested by the Police authorities because the Police could not
Molanos , when Molanos was on board the Police Car make out a case against them but days after Orgonio
one of the police officer asked Molanos if he did kill and Medina came back to the police station to
the victim and Molanos replied “yes because he was confess because they were haunted by their
very abusive. At the time of the trial the police office conscience, after that the police officers started to ask
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Atty. Renato Galeon
questions as to how it happened and why it happened testified as to the oral testimony of Lee. Lee objected
and upon hearing that, the police officers prepared contending that the testimony should be inadmissible
the extrajudicial confession of the culprits, and as because at the time Lee was already under custodial
much as there was no lawyer in the place, so the investigation and that it was done without having him
chief of police rather requested the presence of the afforded with the so called MIRANDA rights.
municipal mayor, the priest was also there and as
The Supreme Court here ruled that his
well as the relatives of Orgonio and Medina and in the
presence of these people Orgonio and Medina confession to the Police officer is admissible
voluntarily signed the extra judicial confession. Trial because unlike the case of Orgonio and Medina
ensued, but in all likelihood Orgonio and Medina where the Police officers interrogated. In this
recanted their confessions. Extra judicial confession case the police officers did not interrogate they
executed by them were presented but Orgonio and simply listen to the confession. In this case the
Medina argued that their extrajudicial confession were Supreme Court decreed that such confession
executed without the presence of a lawyer and was spontaneous hence admissible as evidence.
therefore should be inadmissible because of
invalidity, the prosecution argued that while there was ➢ PP vs Baloloy: Rape with homicide involving an 11 yr.
no lawyer, the priest and the mayor were around and old girl in Aurora, Zamboanga. The accused here
they attested to the extrajudicial confession and it was confessed to the Brgy. Chairman after such
also argued by the prosecution that in the first place it confession the latter turned over Baloly to the police
was the culprit who voluntarily went back to confess. station and while being detained in the Police station
the police officers interrogated Baloloy and prepared
Q: Are the confessions admissible? extrajudicial confession, since there are no lawyers in
A: The confessions before the police officer, NO the the place accused was brought to the Municipal
Judge to attest to his extrajudicial confession and the
Supreme Court said that even if it was them who
judge also got mad, he interrogated Baloloy and the
voluntarily came back to the police station to
latter confessed before the judge and the confession
confess, the fact remain that they were not assisted
was heard by other court personnel but in the ensuing
by a lawyer and then there was also no valid waiver trial Baloloy recanted thereafter the prosecution
of a lawyer therefore the attestation of the mayor presented the municipal judge, the police officer to
and the priest would not confer validity to the whom Baloloy confided, the brgy. Captain and the
extrajudicial-confession notwithstanding that they court personnel who heard the confession of
voluntarily confessed because it was also established Baloloy.
that the police officers conducted interrogation
o Is the confession before the judge valid? No. because
thereafter. But, the accused were convicted not on
you cannot expect the judge to be an independent
the basis of the extrajudicial confession but on the
counsel in the first place and there was no valid
basis of the testimony of a radio reporter who paid
waiver of the right to have a counsel.
them a visit and interviewed them and to whom
Orgonio and Medina confessed to raping and killing o How about the testimony of the police officer? No.
the child. Supreme Court in this case ruled that because he was already under arrest at that time.
confessions made to media practitioners may stand o How about the confession to the brgy. Captain? Isn’t
in court. Because the Bill of Rights may only be it that the brgy. Captain is also a public official? Yes. it
invoked against the state. was an spontaneous confession because take note
that at that time he was not as yet arrested, the arrest
➢ PP vs Lee: Accused is the owner of a restaurant in
came in only after. Likewise the confession by the
Boracay, he had a quarrel with one of his customer Baloloy to the judge that was overheard by court
and in the course of the heated argument he lost his personnel.
temper and killed the Caucasian, and Accused went
straight to the nearest Police station and narrated the
incident. In the course of the trial the police officer
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Atty. Renato Galeon
➢ PP vs Andan: rape of a nursing student, when the girl your Miranda Rights. Because anything you say will be
passed by Andan he requested the former to take the used against you.
blood pressure of his mother in law the girl entered
Q: how about this so called police line-ups? Will
the house of Andan only to be raped and eventually
Miranda rights be available during this stage? (where
killed. The investigations pointed to Andan as the
culprit and he was arrested and in the police station the victims will identify the possible suspect)
there was an interrogation at that time there was no A: YES. GR: MIRANDA RIGHTS is available only during
lawyer and then sometime thereafter the mayor of the custodial investigations. EX: If the investigation has
place went to visit to the police station also to see
already shifted from being investigatory to being
Andan but when Andan saw the mayor, he requested
accusatory, as when the police officers had already a
to have an audience with the mayor, he then confided
particular suspect in mind or when the police officers
with the mayor that indeed he did rape the victim, the
mayor opened the door of the police station and had already particular witness, then Miranda rights
invited the other people in the area to come inside will already be availing to the accused.
and right in the presence of the people Andan again
➢ PP vs. Custodial: 3 lady boarders were awaken by
confessed. In the trial, the police officer testified to the
their sleep when one person barged in and
confession of Andan but it was called out as
announced robbery. After a while the accused had a
inadmissible by the court.
change of plan instead of just robbing the victims he
o How about the testimony of the mayor would that be intended to rob the bodies of one of them, he used
admissible? Where no doubt in this case Andan was soap as lubricant after, he succeeded raping the girl.
already under custodial investigation when he Custodial thereafter went home to his town in Negros,
confessed to the mayor? The Supreme court ruled in he was pursued by police authorities because there
this case that the testimony if the mayor is admissible, were 2 children who’re playing near the boarding
according to the Supreme Court while in the first house and identify and saw Custodial coming out
place it is not the Mayor who sought for an from the boarding house. When Custodial was
audience with Andan, it was the other way around. It arrested and brought to Bacolod Police Station where
was rather a spontaneous confession of Andan. he was presented to the two children who supposedly
saw custodial the night or hours before the incident.
More so in confessions made to private persons. In the ensuing trial, there was also a written
extrajudicial confession executed by Custodial. In the
➢ PP vs Maingan: Maingan here was a house helper,
ensuing trial however before the Supreme Court, the
he set the house of her employer on blaze resulting to
SC rule out the extrajudicial confession of Custodial
the death of her employer and their children and the
because the SC believed that the person was tortured
houses of the neighbors. Maingan got arrested and
into executing the same, the supreme court also
was interrogated by the brgy. Captain, she owned up
pointed out that when custodial was presented to
to the crime and the while she was detained, she also
Police station, custodial in that moment of time must
confessed to the crime before a neighbor of her
be assisted already with a lawyer. Fast forward,
employer. Q: was the confession before the brgy.
Custodial was acquitted by the SC.
Captain admissible (she was interrogated after she
was arrested)? No doubt it should be decreed
inadmissible but as regards to the confession to the Arrest was made because there was a search warrant and
neighbor is admissible. subsequently conducted a search of the premises which yielded
positive result, then required the accused to sign the
Obiter: If you are the police officer, what would you do confiscation receipt.
if there is no lawyer available to make the extrajudicial
confession admissible? Invite private individuals so that After raid conducted, the accused has been found to be in
possession of shabu. Without having been assisted by the
in the ensuing trial, while you cannot as a police officer
lawyer to sign the confiscation receipt, is the evidence
testify to the confession, you can have the other admissible? There was an interrogation thereafter.
persons testify. But if you are the accused, you invoke
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Atty. Renato Galeon
- That piece of evidence will be incriminating against the privilege of the writ of habeas corpus
accused. By signing the confiscation receipt, the accused is suspended. Excessive bail shall not be
admits that the evidence was taken from his possession. His
action amounts to a confession of guilt which should have
required.”
been attested by lawyer.
- People v De Guzman The right shall not be impaired even if the writ of
Confiscation receipt signed by the accused without habeas corpus is suspended.
assistance of a lawyer, deemed inadmissible.
It guarantees the right to put up bail, when the offense
Presence of a lawyer should be at the time the accused is not punishable by reclusion perpetua and the
signed the confiscation receipt. evidence of guilt is not strong.
After the raid is conducted, the accused was made to sign the
confiscation receipt. Later on, the accused was brought to the BAIL, is a security or surety to secure the needs of
police station and signed the arrest report for illegal the persons from the custody of the law for temporary
possession of shabu, without assistance of a lawyer. Will the liberty. Is nothing but a surety or security to secure
arrest report be admissible without the signature of the the liberty of the person pending his case.
lawyer?
Yes, as the arrest report is not an admission yet. It is
-
nothing but evidence where the accused is brought to
Kinds of Bail
 Cash bail bond
the police station. Nothing more nothing less.
 Property Bond
- People vs Manzano
 Surety Bond
The accused was arrested for killing another person with the  Released on Recognizance
use of a gun, there was no confiscation receipt, and the
accused was brought to the police station and underwent a Bond, property bond, surety bond, release on recognizance,
paraffin testing. Such that if the result is positive, then it cash bail (payment of sum of money). Pay through check,
may be used as evidence against him. If negative, works the money, tender of payment when encashed.
same. The result turns out to be positive, but it was conducted
without the presence of his lawyer. Is the result and mugshot
admissible while it was done without the presence of a lawyer?
- What is proscribed is the extraction of confession Cash bail
without him afforded with his Miranda rights. Paraffin It requires payment in a sum of money. You can pay
testing is nothing but a mechanical and physical ?. It
through cheque, but that would not be considered as
is not prohibited within Art 3, Sec 12 (3), 1987
Constitution. Even if the same is conducted without
payment unless there is already encashment.
having been assisted by the lawyer.
If there is a confession extracted from the arrested person.

Property Bond
When the accused does not have the necessary amount to
The person arrested was afforded with his Miranda rights and pay the bail, then he will furnish his property to secure his
did not execute his EJC and was proceeded with an temporary liberty.
information to the court resulting to a commitment order.
What right/s does the person have? To secure temporary liberty, the property to be furnished must
be a real property; it has to be covered by a certificate of title. If
it is without its tax declaration, then it will not be approved by
➢ RIGHT TO BAIL the court. The property must be free of any liens or
SEC 13, ART 3, encumbrances. Mortgaged properties cannot be admitted.
“All persons, except those charged
with offenses punishable by reclusion REQUIREMENTS:
perpetua, when evidence of guilt is  Real property
strong, shall, before conviction, be  Covered by a Certificate of Title
bailable by sufficient sureties, or be  Covered by a Tax Declaration
released on recognizance as may be  Free from any or existing encumbrances
provided by law. The right to bail shall
not be impaired even when the
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Atty. Renato Galeon
If you have the funds, then put up a cash bail to expedite the lawyer and the penalty is such, file petition for bail.
release of detention. Since property bond takes time because Even if that is the penalty, yet the evidence is
you have to present the certified true copy of the property and nonetheless not that strong. There will be a summary
convince the court that it is fully paid and free from any hearing, then the prosecution will present evidence,
encumbrances and liens. While on cash bail, if the case is hearing is required even if the fiscal will oppose to
terminated, the bail may or can be recovered by the accused. bail. 224 SCRA 110
Then there’s no harm.
Take Note: RP AND evidence of guilt is
strong.
Surety Bond
If you don’t have the money then avail of surety companies
and pay premiums. There is still a good chance, when the person is
already terminally ill. (Dela Rama vs. People’s Court)
Downside: You have to pay in premium and you cannot
recover such amount. Normally 20% of the recommended pay, Is that the reason why Sen. Ponce Enrile is posted for
so ilaa na to. And almost always, the surety company will bail?
require you to issue a PDC to guarantee the amount the → The SC in view was that the evidence against
security for you. Or if you have a deposit with the bank, it will Enrile was not that strong. The amount is
require you to execute undertaking allocating a sum of money exorbitant.
which you can’t withdraw from your account because that is
already marked for the surety company in case you will be held The rule is that there should be a hearing even if the offense is
liable. reclusion perpetua.
Bail is not a matter of right facing a case before the

Hence, it is still better to put up a cash bail.
court marshall.
- Facing cases before the court marshall. Reason is that,
Bail on Cognizance the SC tried applying the articles of war and not an
- Not for heinous crimes; and ordinary offense. After all, they pose danger to the
- Only on minor offenses, availed of by children in society if they are guilty with a criminal offense 200
conflict with the law. SCRA 80, the SC said bail cannot be a matter of right
pending before the courts marshall or military court.
Extradition cases, is bail a matter of right?

- USA v Purganan, for one, bail is normally applicable
in criminal cases. Bail can be availed of before
When information is already filed in court and placed bail. The conviction. When there is no pronouncement of guilt.
accused will be placed under arrest and there will be no filing Cases sui generis. Somehow modified in, bail may be
of necessary information in the court. availed in extradition cases, as long as it is established
by clear and convincing evidence that he will abide
Can you put up bail even before filing of information on the with the orders of the court…? Burden is on the part
offense? of the expedite.
- The accused don’t have to wait. Once detained, the
accused can already apply for bail. When there is as
yet, then file for a petition for bail. Alleged for the Circumstances that will affect the
offense this is bailable. If established, then granted. determination of account
In practice, the Office of the Prosecution Bail Bond
Is it a matter of right in all criminal cases?
Right. For every offense, there is already a
- No, bail is not applicable in cases falling under
corresponding bail. If the prosecution recommend for
summary procedure. Since there is no issuance of
filing of information in court, there is already an
warrant of arrest. Such as cases filed on BP22 which
amount recommended for bail. Even if there is a bail
there is no arrest, also oral defamation. Bail
bond guide, the judge has always the authority to fix
therefore, not applicable on cases falling under
summary procedure.
the amount of bail. Accept the recommendation of
fiscal, or may reduce or increase the amount.
➢ In cases also when the penalty of reclusion perpetua
and the evidence of guilt is strong. If you are the
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Atty. Renato Galeon
CONSIDERATIONS The crime is cognizible and filed with the RTC, the offense at
its inception is a bailable offense. The penalty does not exceed
reclusion perpetua?
Financial Capacity - Yes, in fact a matter of right,
If the accused is poor or does not have visible
means of income, file for motion for deduction of After trial RTC renders judgement for conviction, then
bail. If you are the defense lawyer of the motion accused filed appeal on CA?
for deduction of bail, secure the conformity of the - Yes, while the case is still pending in the CA. It is a
fiscal. As much as 50% recommended, fiscal will matter of discretion, the discretion is with the RTC
not interpose any objection as long as there is a
cash bail. If the CA renders judgment affirming the RTC, then elevated
further to the SC?
Before filing for motion, go to fiscal and ask for conformity, - Bail can no longer be availed of..
there should be no objection. Otherwise, if there is no consent
in advance, motion will be set for hearing. There is of course, Cognizable by the RTC, the offense is considered a non-
delay. Best secure the conformity of the fiscal first. bailable offense (qualified theft, amount exceed 750
pesos) Evidence of guilt is strong. Bail may not be a
availed of.
Nature and the Circumstances
of the offense After trial the RTC convicts the accused for the lesser offense
Penalty which is a bailable offense (estafa). Accused questioned on
Character appeal to the CA. May accused be admitted to bail during
appeal?
Age (old age, in all likelihood will be granted)
- Yes, after all he was convicted but this time for a
Waiver of evidence bailable offense. Is it a matter of right or discretion?
Forfeiture of previous bail bond Matter of discretion belongs to the CA.
accused jumps bail. Motion will be denied
If the CA affirms the decision of RTC, and elevated
Pendency of other cases further to the SC. It cannot be availed of anymore.
Probability of abscond, the judge will not grant. If Offense was at its inception considered bailable and the RTC
the accused is a recidivist, expect that motion for convicts the accused, thereafter, accused filed an appeal with
deduction will be denied. Risk also that it will be the CA
increased. - Bail may be denied.
Below reclusion perpetua, bail is a matter of right. Such that if

Sec 5, Rule 113
the offense is cognizable by the MTC. Bail is a matter or right.
Not exceeding six years, would fall with the MTC. If the offense Judgement of conviction with the RTC. Bail was put up while
is has a penalty exceeding six years, then RTC. the case is pending, the same may be denied if among others,
the accused is found to be recidivist, quasi-recidivist, habitual
After trial, the accused was found guilty, with a penalty of 3
delinquent, committed with character of committing another
months to 3 years. MTC renders judgment of conviction; the
crime
accused then filed an appeal with the RTC. During the
- the motion will be denied.
pendency of the appeal, may the accused be admitted to bail?
- Yes, in fact, considered a matter of right. Even after If accused has previously escaped from a penal institution, the
conviction by the MTC. application for bail would have to be denied.
The RTC renders judgment affirming in toto the decision of If the accused violated his parole, conditional pardon,
MTC. The accused filed appeal to the CA. May the accused application for bail would have to be denied.
admitted to bail?
- Yes, is it a matter of right? It’s a matter of discretion Absconded or escaped, denied.
and the discretion is with the RTC.
If the accused filed further to the Supreme Court? The accused committed another offense while the case is
- The accused can’t file further. pending before the court. During promulgation of judgment,
the accused threatened the judge. The accused then filed an
appeal for CA.
9
Atty. Renato Galeon
- There is a strong indication that the accused will published first on the Official Gazette, or newspaper
commit another crime. Then the judge will deny the of general circulation. Moreso, on the penal laws.
motion for bail.
Is there such thing as right to Preliminary Investigation?
If there is no special circumstance, it will depend on the - It depends, in Sec 1, Rule 112, it becomes a matter of
discretion of the RTC. right if the penalty exceeds 2 years 1 month and 2
days. If the penalty is below, then it cannot be a
Can the accused travel to any other place (abroad) when the matter of right.
bail is granted?
- The accused should ask permission from the court, if Appeal, only a statutory right
otherwise, the bail will be cancelled and the judge will
issue a hold departure order.
Criminal cases penalty imposed is
Note: reclusion perpetua
Sec 13, Art. 3.
Even if there is already a suspension of writ of habeas
corpus. Right to bail can never be waived. Sec 5 par 2 (b), Art 8
“(2) Review, revise, reverse, modify, or affirm
Even if there is Suspension on the writ of habeas corpus on appeal or certiorari as the law or the rules
- to apply for bail if the writ is revived of court may provide, final judgments and
orders of lower courts in:
RIGHTS OF PERSON FACING
CRIMINAL CASE (B) All cases involving the legality of any tax,
impost, assessment, or toll, or any penalty
Sec 14, Art 3 imposed in relation thereto.”
“(1) No person shall be held to answer for a
criminal offense without due process of law. Appeal before SC is guaranteed. There is a remedy of appeal.
If the penalty is reclusion perpetua or higher, any appeal
(2) In all criminal prosecutions, the accused should have to be taken.
shall be presumed innocent until the contrary is
proved, and shall enjoy the right to be heard People vs. Mateo G.R. No. 147648, July 7, 2004
by himself and counsel, to be informed of the - If the penalty of the RP or higher, must be had with
nature and cause of the accusation against him, the CA before the SC. Even if it is more favourable
to have a speedy, impartial, and public trial, to with the accused, it has to be filed first in CA then with
the SC. At least, the accused is given two chances.
meet the witnesses face to face, and to have
compulsory process to secure the attendance
Amended to the end, where the penalty imposed is death,
of witnesses and the production of evidence in
appeal is automatic. Even if the accused does not want to
his behalf. However, after arraignment, trial appeal, it will be reviewed automatically first by the CA.
may proceed notwithstanding the absence of
the accused provided that he has been duly When the penalty is death, automatic review.
notified and his failure to appear is
unjustifiable.”
Right to be presumed innocent until
proven otherwise.
Right to criminal due process
- Giving the person an opportunity to be heard. Even if caught in flagrante delicto, the accused is to be
Accused should be given a chance to present presumed innocent even if found otherwise.
evidence, if fettered away with that right. The rule of
merisi applies. The opportunity to be heard is the It becomes a matter of obligation, incumbent upon the
essence in criminal due process. prosecution to prove the guilt of the accused, the proof of guilt
- Not confined during actual trial, it starts with the beyond reasonable doubt founded on moral certainty. There is
publication of the law. In Persons and Family doubt even if the accused is guilty or not.
Relations, before a law to be applicable, it should be
10
Atty. Renato Galeon
accused. This is in pursuant to the right of innocence until
Requirement: PROOF OF GUILT BEYOND REASONABLE proven otherwise.
DOUBT, burden of proof in prosecution.
Equipoise Rule
Solayao, Dunlao
There are instances where the burden of evidence will be Right to be heard by his counsel or his lawyer,
shifted from the prosecution to the defense. Lawyers never lose their appeal.
- Murder or homicide, Custodial investigation, the right to counsel can still be waived.
During trial accused admits to the facts of
killing but interposes self-defense. It is incumbent Right to be heard by himself and his own
upon the defense to prove the burden of evidence. counsel
Where this happens, there will be a reverse trial. In the
ordinary course of things, the prosecution have the In civil cases, if the accused doesn’t want to have his lawyer,
burden of proving the guilt. and he is required to submit an answer and subsequently
failed to do such, then the rule of merisi applies. There will be
Those where the accused… an ex parte judgment. In other words, the right to have counsel
in civil cases is highly waivable.
- Pleads insanity, then there will be a reverse trial
During CI, the right to counsel can still be waived subject to
- The case is for illegal possession of prohibited drugs, some qualification.
there will be a shifting of proving the evidence. The
accused must prove that the things were not really Actual trial, the right to have counsel or assisted of a counsel
from him. can never be waived. Presumption in law is that even if the
accused is highly intelligent, he will be no match for a lawyer
- Falsification of documents, if the prosecution is who is already skilful at trial and also in litigation.
already established in the court, and the coument is
reconvered from the accused, then there is a In actual criminal proceedings, the right can never be
presumption that the holder is guilty. Prove that he is waived even if the accused is highly intelligent
not the owner of the do - The rule is so sacred, even in remote places, when
there are no lawyers available the court will appoint a
Sec 14, Art 3 counsel de officio, even a barrister will do.
is clear, notion is that the duty of the prosecution to
prove the accused on guilt on reasonable doubt. The right to be informed of the nature of
Confession, highest form of evidence the accusation levelled against him
During arraignment The accused pleaded guilty, there was If the accused is illiterate, it will be translated to him in
admission and confession. Will the judge render judgment of vernacular. The purpose is to prepare the prosecution
conviction at once? with.
➢ It depends, applying Sec 3 Rule 116, if during
arraignment the accused pleads guilty to a capital
offense; the judge is mandated to ask probing
questions to the plea of guilt of the accused and to
explain the consequences. The judge still has to
present evidence to the degree culpability of the DOUBLE JEOPARDY
accused. Even if the accused entered a guilty plea, the
judge is not authorized to render forthwith to convict
Double jeopardy, to fairly gauged to the fact of the offense as
the accused.
charged in the information
Where the evidence for the prosecution and defense are even,
People vs. Crisologo
then any such situation will have to be resolved in favor of the
11
Atty. Renato Galeon
- accused charged for robbery with homicide, he was
deaf-mute, the court nullified the charge against him The separate provision Sec 14, Art 3 refers to criminal cases,
because the judge could not find a person to explain
to the accused the offense charged.
While Sec 16, Art 3 involves civil and administrative cases, and
all cases pending before judicial, quasi-judicial or
The right is very important, as the accused cannot be administrative bodies therefore, it is broad and encompassing.
convicted for an offense graver that what is charged.
During the trial the accused is able to present evidence; will it R.A. 8493
not qualify the offense from homicide to murder? Speedy disposition of criminal cases, arraignment
must be scheduled in 30 days, and should
Charge is for murder, can accused be convicted of homicide? commence 30 days after arraignment. The case
- Yes shall be determined after 180 days following
commencement of litigation. But then it is hardly
The crime was Rape but was charged for qualified seduction followed.
- In People v Ramirez it was considered as invalid.
Because there is a variance of proof, comparing the Sec 15, Art 8
two crimes, “The privilege of the writ of habeas corpus
shall not be suspended except in cases of
Accused need to be informed of the accusations levelled
invasion or rebellion when the public safety
against him
requires it.”
The information charged was murder, but the accused likewise
inflicted serious physical injuries not just on the victim but as All the periods therein are merely directory and not mandatory.
well as to the mother and brother of the victim?
- No, the accused may only be convicted of the crime Impartial
as charged in the information. If the judge is perceived to be bias, move for inhibition
Rule 137.
In People v Paglinawan, the conviction of the accused is
invalidated by the SC. The information has to charge only for Public trial
one specific offense, except if it is a special complex crime. not correlated with publicised trial. Meaning the trial is
Estoppel if the defense doesn’t interpose any objection therein. open to the public.
Sec 14, Art 3 But there are situations where the trial has to be behind closed
doors.
Right to have a speedy, impartial, and
public trial Right to confront the witnesses face to
Speedy face
refers to the right of the accused to cross-examine the
If there has been a repeated failure on the part of the
prosecution witnesses. If not testified to by the affiant,
prosecution to present evidence for 3 consecutive trial
then such affidavit will not be considered in evidence.
dates, then the accused can move for the dismissal of
Mere affidavits will suffice in admin cases, but not in
the case.
criminal cases, where the right of the accused to meet
the witnesses face to face is significant.
That dismissal is with prejudice; the case cannot
anymore be filed. Adjudication will be based on the
But cross-examination can be conducted sometimes
merits.
not face to face, especially if the witness is a child.
The cross-examination will happen while the child is
Should be read in conjunction with:
in the chambers of the judge and the lawyer will be on
the courtroom.
Sec 16, Art 3
“All persons shall have the right to speedy
disposition of their cases before all judicial,
quasi-judicial or administrative bodies.”
12
Atty. Renato Galeon
Right to avail of the compulsory In civil cases, it is also applicable. But the invocation is akin or
similar to an invocation of a witness in a criminal case. The
processes to secure the attendance of plaintiff can be compelled to take the witness stand. Unlike in
the witnesses, criminal case, a party litigant in the civil case can only be
If the purpose of the person is to bring some evidence invoked if there is already incriminating questions.
in court.
If there is criminal case as well as a civil case
Right to have trial in absentia ➢ Called to testify in a civil case, then the accused can
works not just for the defense but also for the be compelled.
prosecution. Can be had if there is already an
Is it available in additional inquiries?
arraignment, but does not show up without any
➢ that a person, being subpoena to cannot refuse by
justifiable reason even without the presence. Accused
expedite
may not be required to be present at any stage of the
proceedings. The presence of the accused may only
be required during arraignment and during identifying
the accused. There has to be arraignment.
Available in Legislative Inquiries as well
And those rights as provided under Sec 14. as Administrative Proceedings
invocation of admin cases similar in invocation of
Sec 17, Art 3 criminal cases, except when the admin case partakes
“No person shall be compelled to be a witness of the nature of the criminal case, forfeiture of license
against himself.” or forfeiture of property.
Rights against self-incrimination Cabal v Capunan

No person can be compelled to testify against him. In - the administrative case involves illegal accumulation
criminal cases, persons cannot be compelled by the of wealth. It partook of the nature of a criminal case,
prosecution to take the witness stand and testify on the respondent then could not be compelled to take
witness stand.
his behalf.
Cannot be done in criminal cases, the right against In admin cases, where the penalty is minor, the accused
self-incrimination is of paramount importance. The cannot invoke to take the witness stand. This right is available
judge cannot compel the accused to take the witness in all cases then, but there is an evaluation to the invocation of
stand and testify against himself. If the accused takes the case.
the witness stand, then he thereby waives against his
right. The employment of physical or moral
If at all to be invoked by the accused in a criminal
force
Does not proscribe or prohibit the inclusion of the
case, it justifies the accused.
body of the accused where that is material or what it
prohibits is testimonial compulsion.
Not just to accused but also to witnesses in criminal
cases.
Ordinary witnesses in a criminal case, for the accused DOUBLE JEOPARDY

can he invoked against self-incrimination.
- The manner significantly varies from invocation by the
accused. If the right is invoked by an ordinary witness Section 19, Article III of the 1987
he cannot refuse to take the witness stand and can be Constitution
compelled to take such. The moment he is asked with “Excessive fines shall not be imposed, nor
an incriminating question then the witness can invoke cruel, degrading, or inhuman punishment
such right. inflicted. Neither shall the death penalty be
As a rule, the accused cannot refuse to answer the question imposed, unless for compelling reasons
for a crime that has already prescribed. involving heinous crimes, the Congress
hereafter provides for it. Any death penalty
13
Atty. Renato Galeon
already imposed shall be reduced to reclusion That explains why there is a pending bill, which is already
perpetua. The employment of physical, approved by the House of Reps, re-imposing death penalty.
psychological, or degrading punishment Because, again, Section 19, Article III, while it abolishes death
against any prisoner or detainee, or the use of penalty, it does not altogether outlaw the imposition of the
substandard or inadequate penal facilities same.
under subhuman conditions shall be dealt with
by law.” In the past, in the time of Erap, the Philippines had a death
penalty law (R.A. 7659) and it was sustained as valid. In fact,
EXCESSIVE FINES SHALL NOT BE IMPOSED, that was the law that served as basis for the execution of
Echegaray (267 SCRA 682) through lethal injection where he
NOR CRUEL, DEGRADING, OR INHUMAN was accused of raping his daughter. He was the first person
PUNISHMENT INFLICTED who was executed through such.
Example: If the City Council of Cebu would enact an We should bear in mind that in the event that death penalty will
ordinance penalizing of jaywalking with a fine of be imposed, we have the provisions, as amended, under
500,000 to be sure, such ordinance will be nullified Section 3(b), Section 10, of Rule 122 which all provide for an
because definitely, it imposes a fine which is already automatic review of a case where the penalty of death is
very excessive. imposed.
Section 19 also prohibits a punishment which is cruel or The rules were amended in conformity with the ruling of
degrading. Such that, where a person is found guilty of theft, the case of People v. Mateo to the end that any such
then we cannot impose a penalty of dismemberment of his automatic review where the penalty imposed in a criminal
hands or cutting off of his fingers because that will be case is death, shall be done first by the CA before the
considered as a cruel punishment. And I, for one, will object to same will be reviewed eventually by the Supreme Court,
any such kind of punishment because you can just imagine and that’s the beauty of having this kind of review because
what the penalty of rape would be, diba? If the cutting off of accused will have 50% chance of reversing a judgment of
one’s hands or fingers ang sa theft, unsa nalang kaha ang I- conviction.
cut off if the crime committed is rape.
However, in the case of Louisiana v. Resweber, 329 U.S.
Human punishment is also prohibited. If a person is found 459, the execution through an electric chair was
guilty for oral defamation or slander by deed, he can’t be postponed because of a power failure. It was argued by
penalized with a penalty requiring him to do something which the accused that death penalty could no longer be
is degrading. But perhaps you may ask what happened in imposed on him because it would amount to a cruel
BBRC where the inmates were required to strip off their punishment. He said that he would be subjected to
clothing. It was considered as part of their routine, especially to psychological trauma because it’s like prolonging his
their inspection. But what was degrading there was the male agony. But the Supreme Court disagreed, noting that it
inmates were required to strip off their clothes on the presence was not also the failure or the fault of the prosecution why
of the female inmates. So that was the part which is there was a brownout on that day where the death through
considered objectionable. electrocution was supposed to be carried out. So patay
gyud intawon ang accused because that was not
NEITHER SHALL THE DEATH PENALTY BE considered as a cruel punishment.
IMPOSED, UNLESS FOR COMPELLING
REASONS INVOLVING HEINOUS CRIMES, THE I would like to stress that death penalty is simply abolished but
CONGRESS HEREAFTER PROVIDES FOR IT it is not completely declared as outlawed.
It should be noted that Section 19, Article III, abolishes death THE EMPLOYMENT OF PHYSICAL,
penalty but it does not altogether outlaw the imposition of PSYCHOLOGICAL, OR DEGRADING
death penalty. It abolishes but that it provides that any death PUNISHMENT AGAINST ANY PRISONER OR
penalty that is imposed shall be reduced to Reclusion DETAINEE, OR THE USE OF SUBSTANDARD OR
Perpetua, yet it gives Congress the power to reenact death INADEQUATE PENAL FACILITIES UNDER
penalty involving heinous crimes. SUBHUMAN CONDITIONS SHALL BE DEALT
WITH BY LAW
14
Atty. Renato Galeon
the same. In that, instead of having it signed by the
While this provision is good, I don’t think this is implemented in prosecutor, it is rather signed by a mere clerk of the
light of the fact that our jails now is already decongested in fiscal’s office. That is definitely invalid. Such that, if the
light of the government’s active campaign against drugs or use case is dismissed and a new information, this time,
thereof. So diba, very crumped up na atong jail karon. Ang signed by an authorized personnel is filed in court, then
uban, mag barog nalang. Usahay, naay shifting. Again, it the accused cannot put up the defense of double
should be dealt with by law. But how can we, of course, jeopardy.
penalize those who are in power? But that is the provision
under such section. DOUBLE JEOPARDY CANNOT BE RAISED IF
THE CASE WAS DISMISSED IN THE
SECTION 21, Article III FISCAL/PROSECUTOR’S LEVEL
“No person shall be twice put in jeopardy of
punishment for the same offense. If an act is Icasiano v. Sandiganbayan, 209 SCRA 377. If the case is
punished by a law and an ordinance, conviction dismissed at the fiscal level, it follows that the information
or acquittal under either shall constitute a bar has not been filed in court. So if the complainant in that
to another prosecution for the same act.” case, refiles the case, advancing some newly discovered
evidence, then the filing of the case before the prosecutor
NO PERSON SHALL BE TWICE PUT IN will not give rise to accused or respondent’s invocation of
JEOPARDY OF PUNISHMENT FOR THE SAME double jeopardy because in the first place, no complaint or
OFFENSE information has yet been filed in court.
When we speak of double jeopardy, it refers to a situation Such valid complaint or information
where a person, after his being acquitted or convicted, or a must be filed with the proper court
case against him is dismissed without his expressed consent,
is again, prosecuted for the same offense. That is, of course, As a rule, venue in criminal cases is jurisdictional. Such
prohibited by Section 21, Article III of the 1987 Philippine that, if the crime is committed in Lapu-lapu City, then
Constitution. that case should be tried before Lapulapu city courts.
Conversely, if the offense is committed in Mandaue
REQUISITES FOR DOUBLE JEOPARDY TO SET City, then such offense should be tried before Mandaue
IN City courts. Such that, if the offense, for example is
committed in Lapu-lapu city but the case is rather filed
1. Valid complaint or information in Mandaue City, then if that case is dismissed by
2. Such valid complaint or information must be filed with Mandaue City court and if that case is refiled before the
the proper court Lapu-lapu city courts, accused cannot interpose the
3. Accused must have been validly arraigned or defense of double jeopardy because the second
accused must have already plead to the charge requirement is one thing. It requires that the information
4. The case is dismissed without the express consent of must be filed with the appropriate court.
the accused or that, it is terminated or dismissed,
resulting in the acquittal or the conviction of the Conversely, if the offense is cognizable by the MTC, but
accused perhaps by share of advertence, and filed by RTC, and
such case is filed by the RTC, and the same is filed, this
time with the MTC, accused cannot also interpose the
Valid complaint or information defense of double jeopardy.
This requirement is very important, such that, if an SITUATION: The crime of rape. No doubt, it is cognizable by
Information is filed in court, and that is not signed by the RTC. But let us assume that by the ignorance of the fiscal, the
fiscal, then that information is valid. Such that, if the case was rather filed with the MTC and it was dismissed after
case is dismissed for the reason that the information is arraignment of the accused. But it was found out that MTC
invalid, then the case will be filed anew, then the had no jurisdiction over the case hence it was immediately
accused cannot put up the defense of double jeopardy. dismissed. It is then refiled with the RTC. Can the accused, in
Or, if an information, for example, is filed in court and that case, invoke double jeopardy?
validly signed by a person who has no authority to file
15
Atty. Renato Galeon
A: No. True, that there was a complaint or terminated already before he can interpose the defense of
information, yet it was filed with the wrong court. double jeopardy.
Another example would be the case of BP22, cognizable by A case in point is the case of People v. Judge Pineda,
MTC but it was erroneously filed by the RTC. Then, RTC G.R. No. 44205, February 11, 1993. In this case, accused
dismissed the same. If that case for BP 22 is refiled with the was facing 2 criminal charges – 1 for falsification of
MTC, the accused therein cannot interpose or invoke double document and 1 for estafa. While the 2 cases are pending
jeopardy because in the first place, the court, to which the case before separate courts, the accused filed a motion to
was filed, had no jurisdiction over the case. dismiss on the ground of double jeopardy. At first, the
court denied the motion, but on motion for reconsideration,
Accused must have been validly Judge Pineda granted the motion to quash the
arraigned or accused must have information, saying that indeed, accused was put twice in
jeopardy. The court sided with the accused when accused
already plead to the charge argued that the crime for falsification was but a means or
method of committing the other crime of estafa. It has
If before arraignment, accused, through his lawyer, filed something to do with a falsification of document. The
a motion to quash the information, say for example, for prosecution filed a petition for certiorari, questioning the
want of jurisdiction over his person because he ruling of the judge and it was sustained. In that case,
questioned the validity of his arrest, and if the case was according to the SC, while it is true that there were 2
dismissed, then it is refiled, accused cannot invoke cases extensively arising from the same offense were
double jeopardy because the third requisite is wanting filed, yet not one of the 2 cases had been terminated.
that accused must have been validly arraigned. Double jeopardy cannot as yet be invoked. SC said that
filing of 2 Information against the same accused will not
You take note that a motion to quash shall be filed prior afford him to invoke his right against double jeopardy.
to the arraignment. So if the motion to quash the There should be termination first.
information is favorably acted upon by the court, then
the filing of the case will not give rise to accused’s TERMINATION BY ACQUITTAL OF
invocation of double jeopardy because there was, as
yet, no arraignment. ACCUSED
The case is dismissed without the Illustration of application of double jeopardy:

express consent of the accused or that, A case is filed against Atty. Gravador for illegal possession
it is terminated or dismissed, resulting in of firearm or discharge of firearm. There was valid
the acquittal or the conviction of the information, filed in a proper court, and after hearing, he was
acquitted by the court. Remember that there is already a
accused judgment of acquittal.
In other words, there should be termination of the first Q: Can the state or prosecution file a motion for
jeopardy before the accused can invoke his right reconsideration? Will it violate his right against
against double jeopardy. double jeopardy?
A: No. It cannot file a motion for reconsideration.
Termination of the first jeopardy may be through: Take note that a judgment of acquittal is
1. The acquittal of the accused immediately executory. Therefore, the prosecution
2. The conviction of the accused cannot file a motion for reconsideration.
3. The termination of a case without his express consent Conversely, if the prosecution cannot file a motion
of conformity for reconsideration, it follows just as clearly that it
cannot file an appeal.
If there are 2 information or complaints filed at a same accused
Q: But is this rule absolute that prosecution cannot
arising from a same act or offense, then the pendency of these
cases would not afford the accused the right to invoke double file an appeal from judgment of acquittal?
jeopardy. The requirement is that the case must have been A: The GENERAL RULE is that, if there is a judgment of
acquittal in a criminal case, the State cannot file a motion
for reconsideration and it cannot file for an appeal
16
Atty. Renato Galeon
EXCEPT if there is a denial of due process that was Where the dismissal or acquittal of the case is capricious,
committed against the State or against the prosecution. then appeal may be resorted to by the State or the
prosecution.
TWO ASPECTS WHERE APPEAL CAN BE
FILED BY PROSECUTION/STATE Appeal for civil aspect
While, as a rule, the State cannot file an appeal from a
 There is a denial of due process that was committed judgment of acquittal, yet the State is allowed to file a notice
against them of appeal questioning the decision, not necessarily affecting
 It is for the civil aspect the criminal liability of the accused, but merely in respect to
the civil aspect thereof.
There is a denial of due process that was
committed against them The rule is that, if the private complaining witness actively
participates in a criminal prosecution with his own lawyer,
A case in point is the case of Gorion v. Regional Trial then the civil aspect is deemed constituted in that criminal
Court of Cebu, 213 SCRA 138, where the case was case. If, by chance, there is a judgment of acquittal, the
dismissed because in the scheduled trial, the private complaining witness can still file an appeal not for the
prosecution did not show up. But there was a reason criminal liability of the accused because he was already
why the fiscal and the witnesses for prosecution did not acquitted but in respect to his possible civil liability.
show up because there was a notice of resetting
transferring the hearing of the case later on. However, Appeal on the civil aspect may be allowed but appeal on the
on the original date, the accused, lawyer, and the judge criminal aspect thereof where there is already judgment of
showed up as they failed to remember of the new acquittal is prohibited.
schedule. Forthwith, the accused acted on his speedy
disposition of trial and the judge acted thereon over the TERMINATION BY CONVICTION OF
dismissal of the case. Now contending that there was ACCUSED
abuse of discretion committed by the judge, the
prosecution filed an appeal and it was sustained as Let us say, for example that Atty. Gravador was convicted by
there was a denial of due process committed against the Trial Court for illegal possession of firearms.
them.
Q: Can the State file a motion for reconsideration or
Another case worthy of consideration is the case of an appeal in the hope of increasing the penalty that is
People v. Judge Tac-an, G.R. No. 148000, February 27, imposed on the accused as they were not satisfied by
2003. There was a criminal case wherein the accused
the penalty given?
was arraigned upon a valid complaint or information. It
A: No. That is not allowed because that will run
was filed with the proper court and subsequently, afoul with the right of the accused against double
calendared for trial. During the pre-trial, however, the jeopardy.
private complaining witness appeared but the other
material witnesses for the prosecution did not appear. This is the dicta in the case of People v. Dela Torre, GR
Take note that the victim was there but the other 137953, March 1, 2002. In the event of Conviction, the
corroborative witnesses did not show up. But for one prosecution cannot file a motion for reconsideration or
reason or another, the judge got irked with the absence appeal in the hope of increasing the penalty that is
of the other prosecution witnesses and ordered the meted out to the accused because doing such would
dismissal of the case. Aggrieved, the State filed an violate his right against double jeopardy.
appeal and of course, the accused interposed the
defense of double jeopardy. But the State was Q: But is there no way that, where in a criminal case,
sustained because clearly in that case, there was a there is a judgment for conviction, the State can file a
denial of due process because after all, under the rules, motion for reconsideration or an appeal without
the presence of prosecution witnesses during pre-trial is running afoul with the rights of the accused against
not really required. The one required to be around is the
double jeopardy?
private complainant but not the other prosecution
witnesses.
17
Atty. Renato Galeon
A: GR: Judgment of conviction, prosecution or state example, is when complainant simply moves for the
cannot file for an MR or appeal in the hope of withdrawal of the case by executing an affidavit of
imposing a graver penalty on the accused desistance.
EXCPTN: If accused also files a MR or for appeal
where in such case, the accused already waives
Q: What is the effect if the case is simply terminated
his right against double jeopardy.
without any judgment of acquittal or conviction on the
If after conviction, accused files a motion for reconsideration right of the accused to invoke double jeopardy?
or an appeal, then that could give license to the State or A: The rule is that, where the criminal case is simply
prosecution to also file an MR or appeal. There is estoppel terminated without a judgment of acquittal or conviction,
or waiver on the part of the accused in this case. then if such termination of the case is without the
expressed consent of the accused, then the case is re-
Illustration: But let us assume that in a criminal case, filed, accused can invoke his right against double
there are 2 accused and 2 of them are convicted by the jeopardy. After all, it was not with his consent that this
trial court while 1 of the accused filed an appeal and case was terminated.
the other did not. Assume further that the appellate
Conversely, if the termination of the criminal case is with the
court renders a judgment of conviction and this time
expressed consent of the accused and if the case is re-filed,
around, the appellate court imposes a higher penalty
accused, as a rule cannot invoke his right against double
than what was imposed by the TC. jeopardy. After all, he consents to such termination of the
Q: Will that affect the right of accused who did not file case.
an appeal?
A: No. GR: Judgment becomes immutable in When we speak of expressed consent, it has to be given
respect to the party who does not file an appeal
unequivocally, be it orally or in writing. Mere silence is not to
therefrom. In that situation, such imposition of
higher penalty would only affect those who filed an
be taken as expressed conformity.
appeal.
Such that if during the trial, for example, the
Illustration: 1 did not file an appeal, 2 others filed an complainant would say “Your Honor, I have a change
appeal before the higher court. In consideration on the of heart. I have already forgiven the accused, so I move
appeal, appellate court found the 2 other innocent of for the withdrawal of the case. I move for the dismissal
the charge as well as the person who did not file of the case.” Muingon ang judge, “Oh, accused, what
appeal. Upon review, niingon gyud ang appellate would you say?” and wala nitingog ang accused,
court that they were not guilty. therefore the case was dismissed. Eventually, or
Q: would it affect the person who did not file an subsequently, naay case gi-refile. Can accused his
appeal? right against double jeopardy?
A: Yes, because this ruling is favorable to him. A: YES. Express consent has to be given in
an unequivocal manner. Otherwise, if
accused merely remained silent, it cannot
To simplify: be construed as consent on his part.
If there are 2 or more accused and some of them appealed
o Adverse result – not affect the accused who did not
Sec 8, Rule 117 of the Criminal
interpose an appeal Procedure
o Favorable finding or advantage – benefits those who did
not appeal from the judgment of conviction Revival of the criminal cases provisionally dismissed. It
provides a time-bar of two (2) years within which the State
TERMINATION WITHOUT may revive criminal cases provisionally dismissed with the
express consent of the accused and with a priori notice to
PRONOUNCEMENT AS TO THE GUILT the offended party, if the offense charged is penalized by
OR INNOCENCE OF THE ACCUSED more than six (6) years imprisonment; and one (1) year if the
penalty imposable does not exceed six (6) years
The case here is terminated without pronouncement as to imprisonment or a fine in whatever amount. This rule took
the guilt or innocence of the accused. The criminal case is effect on December 1, 2000, and must be applied
self-determinated without any pronouncement. One for prospectively in order to prevent injustice to the State and
18
Atty. Renato Galeon
avoid absurd, unreasonable and wrongful results in the without violating the rights of the accused against
administration of justice double jeopardy.
It allows provisional dismissal of cases. Under this section, a This is the ruling in the case of People v. Vera,
case before the MTC may be provisionally dismissed and it GR. 134732, May 19, 2002. While as a rule, that
may be refiled within a period of 1 year reckon from the date the case is terminated with the expressed
of its provisional dismissal. Where the case however, is consent of the accused, then the event the case
cognizable in RTC, then the case may be refiled within 2 is refiled, accused cannot invoke his right against
years from the date of its dismissal. double jeopardy EXCEPT when such
termination, upon the instance of the accused, or
But under this Section, there may only be valid provisional his consent, is anchored on his right to speedy
dismissal of cases if such is done with the conformity of the trial or the same is anchored is anchored on the
accused. insufficiency of the evidence of the prosecution.
Precisely, the case may be filed within 1 year or 2 years as Take note that in Criminal Cases, after the prosecution
the case may be, because accused cannot invoke his right has rested in the case and the defense is of the
against double jeopardy because he consents to the considered view that the evidence would not sustain
provisional dismissal of the case. conviction, the defense may want to file a demurer to
If ever the fiscal would suggest that instead of having the evidence.
case dismissed because of the violation of your client to
speedy trial, do not consent to such proposal because if you By filing such demurer to evidence, the defense is asking
give your consent, the case may be refiled within 1 or 2 the court to forthwith render a judgment on the basis
years as the case may be and you cannot interpose the solely on the evidence for the prosecution. If the motion is
defense of double jeopardy. After all, you had given your granted, then that’s the end of the case. Meaning to say,
consent to such provisional dismissal. the State cannot anymore refile the case even the State
would contend that it had found newly discovered
evidence because that is already adjudication on the
GR: If the termination is with the consent of the accused, he merits.
cannot invoke his right against double jeopardy in the event
the case is refiled.
Section 7, Rule 117 anent double
EXCEPTIONS TO THIS RULE: jeopardy
1. When even the dismissal or termination of the case is
Section 21, Article III is plain and simple. It merely states that
upon the instance of the accused or with his consent,
no person shall be put twice in jeopardy of punishment for the
such termination of the case would not foreclose his
same offense.
right to invoke his right against double jeopardy.
Take note that Section 7, Rule 117 of Criminal Procedure puts
- If this is anchored in the violation of his right to
more teeth on the rights of the accused against double
speedy trial. If the case is terminated even upon the
jeopardy.
instance of the accused because there is an apparent
violation of his right to speedy trial because of
While the provision under Section 21, Article III is simplistic,
unreasonable postponement, then such dismissal,
the provision under Sec. 7, Rule 117 is very detailed.
although upon the instance of the accused, will not
foreclose his right to invoke double jeopardy in the
event that the case would be refiled. It provides that when an accused is convicted, acquitted, or the
case against him dismissed without his express conformity by
2. When the termination of the case is with the consent, or a court of competent jurisdiction upon a valid complaint or
even upon the instance of the accused is grounded on information or after of any formal charge that is sufficient in
insufficiency of the evidence for prosecution form and in substance that would sustain a conviction, and
after accused had pleaded to the charge, then the conviction
In such case, any such dismissal would be treated as
acquittal. Hence, the case may no longer be refiled and acquittal of accused shall be a bar to another prosecution
for the same offense, or for any attempt to commit the same,
19
Atty. Renato Galeon
or for frustration thereof, or for any offense which necessarily same event was filed and the second charge was no
includes, or is necessarily included in the offense charged in longer for SPI but for less serious physical injuries.
the previous complaint or information. Q: Will it prosper?
A: No, because the second charge for LSPI is
Illustration of Application: necessarily included in the charge for SPI. Verily,
Let us assume that the charge is for Homicide. Then after if the second charge is for slight physical injuries,
trial, accused is acquitted. then no doubt, that case will not also prosper
because it will run afoul with the right of the
Q: May accused be charged again for the same offense
accused against double jeopardy.
when he was already previously acquitted (same facts)?
A: No, double jeopardy.
EXCEPTIONAL CIRCUMSTANCES PROVIDED
Let’s assume that the second charge after the acquittal of FOR UNDER SECTION 7, RULE 117 WHERE
the accused was not for Homicide but for Frustrated A FILING OF A SECOND CHARGE FOR A
Homicide (same fact). GRAVER OFFENSE WILL PROSPER WITHOUT
Q: Will that prosper? VIOLATING THE RIGHT AGAINST DOUBLE
A: No, because Sec. 7, Rule 117 is very clear that
JEOPARDY
after judgment of acquittal or judgment of
conviction is rendered, accused cannot be
prosecuted for the same offense or an attempted  When the graver offense developed due to
case that is the same as the one charged. Where supervening facts arising from the same acts or
the second charge is for frustrated homicide or omission constituting the same offense charged
attempted homicide, then for sure, it will not
under the previous complaint or information
prosper because that is prohibited.
Example: Gikulata kong Gravador but buhi pa ko. I was

Hence, filing of a similar charge or any attempt to commit the
still alive when I was brought to the hospital. And in the
same or a frustration of the offense charged under the
filing of information was only for Serious Physical Injuries.
previous information will be prohibited because that will be
The arraignment was had on March 10, 2017 and during
violative of the right of the accused against double jeopardy.
arraignment, Atty. Gravador pleaded guilty to the offense.
But on March 12, however, namatay ko because of
Situation: The case is Homicide but accused, after trial
complications (tetanus, probably). When that happens and
was acquitted. Private complainant and heirs filed
a graver offense will be filed against Atty. Gravador on
another case arising from the same event, and the case
March 17, 2017, then that is perfectly allowed. That would
now is for murder, alleging special aggravating
not be violative of his right against double jeopardy
circumstances. because in the first place, it is developed due to
Q: Will that prosper? supervening facts arising from the same event, or act or
A: No, under Section 7, Rule 117, after a omission constituting the offense in the complaint.
judgment of acquittal or conviction, accused
cannot be prosecuted for an offense which
Let us assume that the reason for my death was not
necessarily includes the offense charged under
the original complaint or information. And no due to tetanus, but because of a heart attack because
doubt, the offense or crime of murder necessarily when I got my billing, perteng mahala!
includes the crime of Homicide. Hence, it is Q: can Atty. Gravador be prosecuted for homicide?
proscribed. A: No, that cannot be considered as a
supervening fact because it has nothing to do
Another situation, first offense is serious physical with the injury that was inflicted on me by Atty.
injuries. Accused was acquitted but after trial and after Gravador.
accused was acquitted, another charge arising from the
20
Atty. Renato Galeon
 The facts constituting the graver offense became complainant did not show up for no justifiable reason and
known or discovered only after accused had the fiscal accepts the plea bargaining proposal of the
entered his plea under the previous complaint or offense, then the rule of mirisi will apply on the
complainant. After all, he was notified but he did not show
information
up without any justifiable reason. Hence, in the absence of
an explained reason of the private complainant during
Example: same situation where I was inflicted
arraignment or plea bargaining with conformity of fiscal,
physical injuries by Atty. Gravador. The
then victim cannot refile the case.
information then was filed on March 2 and
arraignment was scheduled on March 10 at
Q: How do we apply the right against double
8:30AM. During arraignment, Atty. Gravador
jeopardy in relation to the so-called single
pleaded guilty or entered his plea to the charge of
application?
SPI and entered a guilty plea. But unknown to the
fiscal, I was succumb to tetanus. And on March 10,
Example: A person surreptitiously enters in a compound
8:29AM I died. Unknown to the fiscal, I died prior with an intention of cutting away or stealing the fighting
to the arraignment but lage, on arraignment, he roosters that were inside the compound. In the process,
pleaded guilty to SPI. he was able to steal 7 fighting roosters. As a rule, there
Q: Where that happens, can he be prosecuted anew should only be 1 criminal information filed for that. but less
to the graver offense of Homicide? us assume that instead of filing for an information of
A: Yes, that is the second exceptional stealing of 7 fighting roosters, the information merely
circumstance where filing of second case for charged him for stealing 4 fighting roosters where accused
graver offense will be sustained as valid. As pleaded guilty to the information charged. Another
when the facts constituting the graver offense
information for theft was filed against him involving the
became known or were discovered only after
remaining 3 fighting roosters.
accused has already entered a plea under the
previous complaint or information. Q: can accused invoke his right against double jeopardy?
A: the filing of the second information will not
prosper because it will run afoul against his
 When, during arraignment, accused was allowed
right to double jeopardy because it is very
to plea bargain to a lesser offense without the clear that when he entered into the
conformity of the fiscal and the private compound, he was animated by 1 single
complaining witness criminal intent and that is stealing the fighting
roosters.
Normally, there will be plea bargaining. For example,
charge is for frustrated homicide, the defense would ask if But there is another situation where a person has a single
accused would be allowed to plea bargain to a lesser criminal intent but it caused more offenses.
offense. That can happen during plea bargaining. If the
court allows the accuse to plea bargain to a lesser offense Example: You are driving your car and in the
without the conformity of the fiscal and the private process, you hit and bumped a sari-sari store
complaining witness, then, of course if the case will be resulting in the damage of the property. Then, you
refiled, this time around, accused cannot interpose the were prosecuted for reckless imprudence resulting in
defense of double jeopardy. After all, he was allowed to damage to property. You pleaded guilty to the charge
plea bargain to the offense without the conformity of the but after which, you are prosecuted anew this time
fiscal and the private complaining witness. around violation of the motor vehicle law.
Q: Is that allowed?
But if the private complaining witness was notified of such A: Yes, it is perfectly allowed. The double
purported arraignment or plea bargaining but the private jeopardy that is prohibited or proscribed under
the 1st sentence of Sec. 21, Art III is premised
21
Atty. Renato Galeon
on the sameness of the offense. Take note all, the offense was for reckless imprudence.
that reckless imprudence resulting in damage According to the SC, it arose out of the same
to property, its elements is far more different act, that is, of driving his car in a rather,
from violation of the motor vehicle law. reckless manner. It doesn’t matter if two
offenses or two victims were involved in that
Another situation: Person is prosecuted for killing case.
another person with the use of an unlicensed
But the ruling in the case of Ivler was in
firearm. There was information for murder
contrast with the previous ruling in the case of
Q: Can he be prosecuted separately for illegal People v. Glenn Delos Santos GR 131588,
possession of firearm? March 27, 2001. This happened in Cagayan
A: In the past, in People v. Tac-an, the where the cadets in the military were having
filing of a separate complaint or their morning activity but then, Delos Santos,
information of illegal possession of firearm driving a 10-wheeler truck, was driving
was sustained. But PD 1866 was already downhill and ran over the PNP cadets
amended and under said law, there was a resulting in the death of 12, 11 serious
physical injuries on others, and slight physical
provision to the end that if the killing is
injuries on 10 other cadets. Such that, what
done with an unlicensed firearm, the fact
was filed against him was not reckless
of such use may only be considered as an imprudence but Multiple Murder, Multiple
aggravating circumstance. In fact, the Frustrated Murder, and Multiple Attempted
amendatory provision is considered as Murder. Delos Santos was convicted and
valid in the case of People v. Malinao GR elevated further to the Supreme Court and SC
124148, Feb 16, 2004. affirmed the conviction but not for murder. For
SC, he could only be convicted for Reckless
Another situation: You are driving your car in a Imprudence resulting in Multiple Homicide, RI
resulting in SPI, RI resulting in Slight PI.
reckless manner and you ended up in a vehicular
According, further, to the Supreme Court, the
accident with another motor vehicle where there are
crime of RI resulting in Slight PI cannot be
2 passengers thereon. In the process or as a result, fused together with the other cases charged
one of the passengers died on the spot while other because it is just a light offense which cannot
one sustained Slight PI. Assume further that 2 be complexed with another offense pursuant
information were filed in court. 1 is for reckless to Art. 48 of your RPC. In fact, in that case,
imprudence resulting in slight PI and other is our SC ruled emphatically that the other case
for RI resulting in slight PI should be covered
reckless imprudence resulting in homicide. Accused
by a separate information and should be
pleaded guilty to the offense of reckless imprudence treated as a separate case, knowing full-well
resulting in slight physical injuries. that it is governed by the Rules in Summary
Q: May accused move for the dismissal of the other Procedure. Affidavit lang na, whereas the
case for reckless imprudence resulting in homicide other offenses would entail the observance of
citing his previous conviction in the other related other criminal procedure.
case (R.I. resulting in Slight PI)
A: While that seem unfair, that is the ruling of Q: Which is the controlling doctrine?
the SC in the case of Jason Aguilar Ivler v. A: Until now, I have yet to encounter a case
Hon Judge San Pedro GR 172716, November which resolve distinctively as to which case is
17, 2010. Forthwith, the accused pleaded controlling. This is my dilemma.
guilty to the lower charge and used that to
plead for the dismissal of the graver offense The kind of double jeopardy proscribed deals mainly with
grounded on his right against double the sameness of the offense. That is the central point of
jeopardy. That was sustained by the SC. After consideration. But there is another kind of double jeopardy
22
Atty. Renato Galeon
that is proscribed therein and this is the 2nd sentence of A: Yes, because penalty is not about failure to
Sec. 21 of Art. III Constitution. It provides that “if an act is pay but for misappropriating the funds which
penalized as a crime under law and in ordinance, were for specific purpose.
conviction or acquittal of the either shall operate as a bar
to another prosecution to the same act.” Here, what Sec 4, Art 3
should be taken into consideration is not the sameness of “No law shall be passed abridging the freedom
the elements between the first charge and the second of speech, of expression, or of the press, or the
charge, but the sameness of the act. Such that, if there is
right of the people to peaceably assemble and
petition the government for redress of
an ordinance prohibiting jueteng, which is also penalized
grievances.”
under our special law, if he is prosecuted under our
ordinance, he cannot be prosecuted for violating the Tax on periodicals where the Publication of periodicals would
republic law. exceed 20k copies a higher tax is to be imposed. US SC
declared that it would limit the publication of the periodicals
because the publishers would not publish periodicals
exceeding 20k copies as they will have to pay higher taxes.
SECTION 20, ARTICLE III According to them, this constitutes a suppression of the
“No person shall be imprisoned for debt or freedom of the press and of expression.
nonpayment of tax”
Suppression of the freedom of speech
Tax here refers to your community tax certificate. You cannot and the press
be imprisoned for that because that is not tax evasion. Does not have to be a total suppression, mere
restriction may be considered restriction, prior
Walay napriso sa utang, and there is truth to that. restraint or censorship
But what is going to happen if you contracted a
loan and to guarantee payment thereof, you issued Philippine Cases
- struck down as void for being a form of prior restraints
checks which bounced?
various governmental regulations, laws or resolutions
Q: Can you be imprisoned for BP22? Would it be because they run counter to the right or offensive to
valid? freedom of speech, of the press and of expression.
A: Yes, it is not violative of the right because in
this case, the penalty there is not meted on the Adiong v COMELEC
failure to pay for your indebtedness but your act - COMELEC issued resolution prohibiting the posting of
of issuing bank check which would erode the stickers or political decals on private cars. The
confidence of our banking system. Hence, you resolution to the end, that posting such stickers or
decals on cars was prohibited.
are penalized not for your loan but for issuing
bank checks. This is the import in the case of
The SC struck down such resolution for being violative
People v. Judge Mangruban, GR 152895, June
of the freedom of speech, of the press and of
15, 2004, where the validity of BP22 was upheld expression.
as valid.
Motuk v COMELEC
Q: How about if you receive something, say money, to - SC invalidated the COMELEC resolution prohibiting
be invested in a particular business venture. Such that, the airing of taped or recorded political jingles
you were made to sign a trust agreement. Subsequently,
SC, declared the resolution void for being
you failed to comply with your obligation to invest the unconstitutional, any such COMELEC resolution would
money and that you rather misappropriated the same. be violative of the freedom of speech, of the press
You were then prosecuted for violation of BP 115, the and of expression.
anti-trust receipt law. Can you be imprisoned for that?
ABS-CBN v COMELEC
23
Atty. Renato Galeon
- COMELEC resolution prohibiting ABS-CBN from - SC sustained the decision of the Diocese of Bacolod
conducting exit polls after every election. According City in refusing to obey the directives of the COMELEC
to the COMELEC somehow such exit poll would to tear down or to remove the tarpaulin in which the
compromise the sanctity of the ballot archdiocese listed down the names of the senators,
congressman who voted for in favor or against the RH
SC said, if resolution would be sustained it would bill. Thus, Team buhay and Team Patay. COMELEC
amount to a suppression of the press and of directed the Archdiocese of Bacolod City to remove
expression. that tarpaulin because according to the COMELEC it
was no doubt a political propaganda and exceeded
Social Weather Station v COMELEC, G.R. No. the allowable size for the campaign materials.
147571, May 5 2001
- COMELEC resolution prohibiting SWS from SC disagreed; according to them such directive of the
conducting surveys prior to the election. According to COMELEC violated the freedom or the right to free
the COMELEC that would condition the mind of the speech or expression. The action of the refusal of the
voters and create a mind to the voters as trending. Diocese of Bacolod to remove the questioned
tarpaulin was sustained as valid as a form of freedom
SC declared that such resolution would amount to a of expression.
violation of the right of the press and of expression.
Cases in which the SC sustained the
Chavez v Gonzales, G.R. No. 168338, validity of some restrictions in the exercise
February 15, 2008
- Airing out of the famous ‘Hello Garci’ tape alleging
of the freedom of speech, of the press
the conversation between former President Arroyo and of expression
and then COMELEC Chairman in the 2003 Elections.
National Press Club v COMELEC
Gonzales threatened that he would file a case for - The SC sustained the validity of Sec 11 (b) of R.A 6646
anyone in violation of the Anti Wire-Tapping Act which prohibited newspapers, radio stations, and TV
those who will air the ‘Hello-Garci’ tape, likewise the companies to sell or donate spaces to political
National Telecommunications Corporation threatened candidates except for the COMELEC.
those TV or radio stations that be close down upon
airing out such taped. SC sustained such prohibition, according to the SC the
purpose of the law is somehow to level the playing
Chavez questioned, as former Solicitor General field in that there should only be one space, and that
hereby, in that it is violative of the freedom of speech, it should be devoted for the COMELEC in which the
of the press and of expression. COMELEC would post the name of the political
candidates. But the case was questioned again.
SC sided with Chavez, according to SC, the directive of
then Department of Justice Sec and then Director of
Osmena v COMELEC, G.R. No. 132231,
the NTC clearly amounted an attempt to supress the
March 31, 1998
freedom of expression and the press among others.
- SC sustained the validity of that prohibition.
David v Arroyo, G.R. No. 171396, May 3 2006

But later on such law was amended, in that TV, radio stations
- After the declaration of the state of national
and newspaper companies are now allowed to sell a portion of
emergency the Philippine National Police operatives
their spaces to candidates but subject to some restrictions in
rounded up the premises of Daily Tribune, Malaya and
among others
respect to the number of publications and airtime in respect to
radio or TV propaganda.
In that case, the SC declared the acts of the PNP be
invalidated as it amounted to a suppression of the Philippine Press Institute v COMELEC,
freedom of the press. 244. RA 272
- COMELEC resolution directing newspaper companies
Dioceses of Bacolod v COMELEC, G.R. No. 205728, among others to provide free print space in which ½
January 21 2015 of the newspaper page is in favor of the COMELEC.
24
Atty. Renato Galeon
SC, declared it as invalid because according to the SC
it would amount to a taking of a property without Chavez v Gonzales
payment of just compensation in violation of the - the basis of such restriction is prohibition of playing
requirement anent the valid exercise of eminent the ‘Hello Garci’ tape and more than that such
domain. regulation was solely based on the contents of the
questioned publication. Hence, the SC adopted a
Should be distinguished from the case of, more censorious attitude in reviewing the regulation
Telecommunications and Broadcast Attorneys of or directive that was issued by Gonzales. In the end,
the Philippines v COMELEC, G.R. No. 132922, the SC declared such directive as invalid for being
April 21 1998 violative of the freedom of speech, of expression and
- A law providing that radio and TV stations should of the press.
provide free airtime to the COMELEC. They assailed
such law as invalid because according to the On the other hand, where what is imposed is a content-neutral
petitioners it would amount as taking of property restriction, then almost always such restriction is sustained,
without payment of just compensation citing the after all such restriction does not altogether prohibit the
previous ruling in the case of PPI v COMELEC. exercise the freedom of speech, of the press, in that it merely
regulates the time, date as well as the manner of such
SC sustained the validity of the regulation because to exercise.
operate a radio or TV station you need to have a
legislative franchise, and under the constitution Bayan v Ermita, G.R. No. 169838, April 23, 2006
particularly under Article 12, any franchise that is - where Bayan questioned the validity of B.P. 880 which
granted by the government is subject to regulation, requires that in order that there may be a valid public
modification, revocation or even nullification. Whereas assembly, then a permit has to be secured coming
there is no need for a franchise for a newspaper from the city or municipality as the case may be.
publishing, network or company. And more than that Except where such assembly is to be held in a private
print space is tangible whereas airspace is intangible. place or a ground of a campus or an educational
institution operated by the government or the same is
Supreme Court classifies restriction in the to be held at a freedom park. Bayan argued that such
freedom of speech, of the press and of regulation partook of a nature of a restriction or a
form of censorship or very still a prior restraint. It was
expression into: a prior restraint according to Bayan as in respect to
the right to peaceably assemble and address redress
1. Content-based restriction to the government. And under B.P. 880, any such
application for permit to hold a rally or to assembly
2. Content neutral restriction be filed at least 5 days prior the intended day of the
rally and had to be acted within 2 days if not, it is
Content-based restriction considered or deemed approved and any decision has
to be communicated to the applicant within 24 hours.
truly based on the contents of the questioned
And in the decision is the denial of the permit, then it
publication
may be questioned before the appropriate court such
as the MTC where they are directed to render a
Content-neutral restriction decision on the case win 24 hours from the filing of
does not altogether prohibit the publication in that it the case. But again, Bayan argued that it was a form of
merely regulates the time, date as well as the manner prior restraint. But the SC disagreed, according to
of such publication. them what was imposed under BP 880 was a content-
neutral restriction, it did not prohibit the contents but
Where what is imposed is classified as a content based merely regulated the time, date and manner of
restriction is subject to a more censorious scrutiny by the assembly.
courts of law, whereas if what is imposed is a content neutral
restriction, it is only subjected to an intermediate review. That Where what is imposed is a content-based restriction,
is why in the Philippines, where what is imposed partakes of a almost always the SC would declare these restrictions
nature of a content base restriction, based on the cases as invalid but where what is imposed is a content-
reviewed, almost always the SC would declare such restriction neutral restriction, then you can expect that it will
as invalid. pass the bar of scrutiny. Because it does not
25
Atty. Renato Galeon
altogether prohibit the freedom of speech, of the - Our SC again affirmed the power of the MTRCB to
press and of expression and the right of people to review TV programs. In that case, Soriano was
assemble. suspended for having allegedly uttering profanities in
the course of airing out his TV program Ang Dating
Daan. There our SC, so simply upheld the power of
Sec 4, Art 3
the MTRCB to review TV programs and movies among
“No law shall be passed abridging the freedom
others.
of speech, of expression, or of the press, or the
right of the people to peaceably assemble and Excepting the power of the MTRCB to review are TV programs
petition the government for redress of aired by the government of the Philippines or any agency or
grievances.” department thereof, or those merely considered as newsreels
or plain news reports.
Prohibits the imposition of a form of a prior restraint or scrutiny.
In the case of,
There may not be a directive or a law creating a public office MTRCB v ABS-CBN, G.R. No. 155282, January 17,
which would act as a board of censor in the respect to any
2005
publication of periodicals books or newspapers articles
- The power of the MTRCB was put in question. What
because that would be considered as a prior restraint. The rule
happened there is that the MTRCB denied or refused
however is different to TV programs or movies thereat. to air out the program dubbed as the Inside Story.
Where in that program the plight of the students in
MTRCB (Movie and Television Review and one school of manila (Philippine Woman’s College)
Classification Board) was portrayed where some of the female students
would dabble as prostitutes at night if only to pay off
P.D. 1986 the MTRCB is given the power to review their tuition fees. According to ABS-CBN it was error
TV programs and movies except where those are on the part of the MTRCB to have denied the airing
exhibited by the government or any department or out of the program, to their mind it was nothing but a
agency thereof, and excepting news reel or plain plain news reporting. The SC sided with the MTRCB;
news report. All other programs on the TV would have they noted that contrary to the postulation of ABS-
to be reviewed by the MTRCB. CBN it was not plain news reporting in that the
program or that segment likewise included
The validity of such law was put to test and even the power of commentaries from the host of the program. It was
MTRCB was put in question in the case of, not straight news reporting. Hence, it fell within the
Iglesia ni Cristo v MTRCB 259, SCRA 529 purview of the power of the MTRCB to review the TV
- Decision by the MTRCB prohibiting the airing out of programs and movies, among others.
the purported program of the Iglesia ni Cristo for
being allegedly offensive. Because it was the Willie Revillame, has been suspended for a lot of times by the
considered view of the MTRCB that the minister of the MTRCB, in fact what happened to him would only accentuate
Iglesia ni Cristo attacked the other forms of religion that MTRCB has that power to review TV programs and
like the Roman Catholic Church and the protestant. In movies among others.
that case, the power of the MTRCB to review such
program was put in question. But the SC said that no Why it is that newspaper reports or articles are not reviewed
doubt the MTRCB has the power and competence to whereas TV programs have to be reviewed by the MTRCB?
review the TV program of the Iglesia ni Cristo. What’s the difference when newspaper reporting and TV
Although the SC disagreed that the minister of the programs movies are nothing but forms or different forms of
Iglesia ni Cristo attacked the other forms of religion expressions?
like the Roman Catholic Church among others. So - Any form of restriction in respect to the publication of
while it upholds the power of the MTRCB to review newspapers or articles will be sustained as invalid. But
the program, our SC said however, that is was error on the power of the MTRCB to review TV programs and
the part of the MTRCB to have denied the airing of movies is sustained, which of course includes
the TV program. But just the same, the SC upheld the censorship.
power of the MTRCB.
What’s their difference? Which of the two forms of media will
Soriano v Laguardian have a far reaching effect?
26
Atty. Renato Galeon
- TV Programs, because there is a wider coverage that
could reach even on far flung areas. Areas which In the case of,
cannot be reached by newspapers. In other words, People v Gupin
recognizing that TV programs and movie would have - where the accused is convicted and his conviction was
far reaching effect on the public then it is only proper sustained by the SC because he conducted an exhibit
said the SC that there should be a form of review in where he displayed his nude paintings. The SC said
respect to programs that are to be aired out through that inasmuch as he did it for a fee, than he was
TV and to be shown in movies. That explains why your rightfully convicted for violation of Article 201 of the
professor Gravador cannot forget the movies he has RPC for obscenity. There the SC laid down the three
seen in the past. Where the principal characters are tests to determine where the questioned publication
Priscilla Almeda, Gutierrez, and Mark Joseph among is already considered obscene.
others.
It is now clear why censorship in TV programs and movies is Test for Obscenity
allowed, whereas the same is not allowed in respect to 1. Where such publication merely
publication of newspapers. appears to the prurient interest of
man.
Sec. 4, Art. 3, prohibits any form of prior restraint or 2. If that depicts in a rather offensive
censorship excepting when it comes to TV programs or
movies. More than that, it likewise prohibits the imposition of manner, a sexual conduct
subsequent penalty. Otherwise stated, the provision 3. If the questioned publication clearly
guarantees freedom from subsequent punishment. The lacks literary, artistic, scientific and
purpose
political relevance.
What is the purpose if we allow publication of an article or the
exercise of the freedom of speech and of the press if Where these criteria are not met, then that question publication
subsequently the person publishing the same would be may be considered as obscene.
penalized?
But if those were the criteria, how would you characterize this
practice of fraternity in the UP? Where the members thereof
In other words, the provision not only prohibits the prior
would conduct the so called oblation run. Is that punishable?
restraint or censorship in that it likewise guarantees freedom
Is that not obscenity? How would you characterize protesters
from subsequent punishment. from this animal group PETA where they would display their
nude bodies?
This rule however is not absolute, in like - In other words, the ruling in the case of People v
Gupin is no longer controlling. That the magistrates of
manner the exercise of your rights is not the SC were just pissed off that they were not given
considered absolute free admissions to the nude exhibits of Gupin. It was
an old case and I doubt that the ruling would still be
Such that, if you write an article maligning the reputation of controlling as of the present. The thinking of the SC
others or even if you write articles in the newspapers maligning then was still conservative at the time.
baselessly the reputation of others, then you can be held liable
for libel defined and penalized under Article 353 of the RPC. Freedom of speech, of the press and
expression among others
If you malign the reputation of others through spoken
language, not necessarily through medium of communication, The question now is do we have the right to criticize or
then you may be held liable for oral defamation penalized as comment on the lives of our public officials? Is that covered
a crime under Article 358 of the RPC. under the protection afforded by the provision?
- Yes, because by becoming a public official they have
If what you displayed or what you exhibited is considered a therefore become a public commodity or figure. So
form of nudity, then there is a good chance that you may be that even their private lives would become or
held liable for obscenity penalized as a crime under Article subjected to scrutiny by their constituents.
201 of the RPC.
27
Atty. Renato Galeon
Ayer Production v Judge Capulong In the matter of Sotto, the father of Sen. Sotto was cited in
- where Enrile sought the prohibition of the showing of contempt by the SC by criticizing a decision that was decided
that documentary dubbed or titled as the dangerous by the SC wherein sotto mentioned that the magistrates of the
life depicting the EDSA People Power Revolution. SC are narrow minded people. And for that, he was cited in
Enrile wanted that if at all such movie be shown, then contempt.
his participation therein should not be depicted in the
movie. Because at that time Senator Ponce Enrile had Ramon Tulfo was also cited in contempt of the SC for calling
a falling out with former president Corazon Aquino. the magistrates thereof as sangkatutak na bobo. But for me, of
But the SC disagreed, according to them, Enrile no course he deserved to be cited in contempt of court in that it
doubt by his active participation in that historic event was already below the belt.
had already become a public figure. Such that he no
longer had any right to complain that his privacy is In fact, we have this rule wherein you are not allowed to
supposedly pried into by the public. Because that’s criticize or give commentaries anent a case that is still pending
the price of becoming a public official. in court. That is why sometimes the court would issue a gag
order directing the parties and even the public not to discuss
That explains why the private life of De Lima is supposedly the merits of the case in the open. It would appear that the SC
exposed. I don’t know really if that is De Lima, well I haven’t is lenient when it comes to criticism directed at public officials
seen really. but where the criticisms are directed against the SC, then it
would become very odiously. Pikon ang SC.
But the ruling in the case of,
Lagunzad v Sotto Vda. de Gonzales
➢ is different, in that case what was supposed to be Test of Validity of the government
shown in the movies was this story about the life of restriction or regulation involving the
Moises Padilla, the predecessor of Robin Padilla
because they belong to the same political clan. The
exercise of free speech, of expression, of
mother of Moises Padilla complained because in that the press and or the freedom of assembly
movie, there were scenes that were included therein
which she considers as a form of fictional romanticism
that his son Padilla was a womanizer. The mother filed 1. Clear and present danger test
a complaint to enjoin and prohibit the showing of that words used are under such circumstances
movie, unless that part would be deleted. And she was and nature as would create clear and
sustained; the SC declared that while it is true that present danger of an evil that the state has a
Moises Padilla had become a public figure yet there is right to suppress.
no saying of the fact also that there were fictional
events that were depicted in the movie that would Case in point, an application to hold a rally at Plaza
malign his reputation. Miranda was denied by the mayor, in reviewing the
action, the SC said that there was no reason on his
In other words, while you are free to criticize your public part to deny the application to hold the rally. There
officials, you are not however permitted to ascribe to your was at that time no present danger to conduct a rally,
public officials baseless accusation or those that are clearly and such there was no threat in respect to peace and
unfounded because there is limitation in the exercise of order.
freedom of speech and of the press.
Reyes v Bagatsing
If you can criticize your public officials are you free to criticize
→ Application to hold rally at Luneta. According
the magistrates of the Supreme Court or judges of the courts of
to the mayor, the rally should be held in the
law?
Rizal Coliseum. SC denied, because at that
time there was no present danger and no
Incident about plagiarism committed by of the justices of the
threat in respect to peace and order.
Supreme Court?
- The UP College of Law, with professors therein, as well
as the officers of the newspapers of up were directed
Navarro v Villegas
to explain or show cause where they should not be → Application to hold public rally participated
cited in contempt by the SC in discussing that issue. by students. The purported rally was at Plaza
Miranda, but the mayor suggested that the
28
Atty. Renato Galeon
rally should just be in UP Sunken Garden. held in private places, educational institutions operated by the
The students wanted in the Plaza Miranda government or freedom parks.
instead. The SC sustained the mayor, at that
time it was already the height of student What is worthy of consideration, in the case of Bayan v
activism and there was already martial law. In Ermita, of all cities in the Philippines at that time only Cebu
that case, there was a clear and present City had a Freedom park, SC ordained that in places which
danger that any such rally would create have no Freedom park then rallies to be held at public plazas
public disturbance. should be exempt from applying permit. Somewhat a judicial
legislation.
2. Dangerous tendency test
Words or publication would create a Rights of the students to hold strikes
dangerous tendency to brought about an evil - According to Malabanan v Ramento, students do not
which the state has a right to suppress that necessarily shed off their right to freedom of
form of publication may be validly regulated. expression, speech or of right to peaceably assemble
the moment they enter the portals or the gates of the
People v Perez, school. As long as they will not resort to coercion or
to damage properties belonging to the school
→ SC upheld the conviction of accused Perez to
administration.
the effect that his actions rather bordered on
the commission of the crime of that sedition.
That kind of act is not guaranteed by Sec 4, Sec 7, Art 3
Art 3. “The right of the people to information on
matters of public concern shall be recognized.
Access to official records, and to documents,
3. Balancing of interest test and papers pertaining to official acts,
Test applied on NPC v COMELEC, transactions, or decisions, as well as to
questioned provision of Sec. 11 (b), R.A. government research data used as basis for
6646. According to the SC, we have to policy development, shall be afforded the
balance the interest of the political
citizen, subject to such limitations as may be
candidates’ vis-à-vis the rights of the voting
provided by law.”
public. According to the SC, the purpose of
Freedom or right to information
the provision was somehow to provide a
common space to be provided by the
Hallmark of a free and democratic society,
COMELEC in which the COMELEC itself
after all, ours is a democratic government
would publish the names of the candidate
and there should be transparency in the
also to level the playing field between the
transaction of the government.
rich and poor candidates to be provided by
them. That law was already amended, there
is now an allowable propaganda in the Chavez v Presidential Commission on Good
media subject to some limitations. Governance, G.R. No. 130716,
December 9, 1998
Compelled the Presidential Commission of
Sec 4, art 3 -
government to furnish to him a copy of memorandum
“No law shall be passed abridging the agreement between PCGG and the heirs of Marcos.
freedom of speech, of expression, or of the Based on the tax exemption to the heirs of Marcos, his
press, or the right of the people to peaceably legal standing was sustained as he sought to be
assemble and petition the government for informed or furnished with the MOA with PCGG and
redress of grievances.” the heirs of Marcos.
Right to peaceably assemble and address redress to the Valmonte v Belmonte, G.R. No. 74930,
government February 13, 1989
- Petition to compel the GSIS to furnish the petitioners
B.P. 880, application of permits for public assemblies to be the list of the names of the Batasang Pambansa
held in public grounds or areas except where such rally is to be members belonging to the UNIDO and PDP-Laban
29
Atty. Renato Galeon
who were able to secure clean loans immediately
before the February 7 election thru the Provision in a CBA to the end that newly hired employees in a
intercession/marginal note of the then First Lady company where there is already a union; such automatically
Imelda Marcos. To furnish petitioners with certified becomes a member of the existing labor union for the purpose
true copies of the documents evidencing their of preserving the existence of the union.
respective loans and/or to allow petitioners access to
the public records for the subject information. Is it valid?
There is nothing in there that copies of the documents you Liberty Flour Mill Corporation case
need should be provided for you for free. You have to shoulder
- SC sustained them valid, that provision is essential for
the expenses or cost. the continued existence in that CBA.
In 2016, where President Digong issued Executive Order No. Right not to join exception where there is a close shop
2, which mandated departments under the Executive agreement in a particular working environment.
Department to make available any records to the public except
those affecting national security. On the view that every citizen Exception to the exception happens when the newly hired
has a right to secure copies or documents belonging to employee is prohibited by his religion to join particular
government offices for transparency except but those affecting organizations like Jehovah’s Witness.
national security cannot be availed.
R.A. 3350, providing those who are prohibited by their
Sec. 8, Art. 3 organization by their religion are to be exempted from
“The right of the people, including those membership to the CSA prohibited from joining a labor
employed in the public and private sectors, to organization. Gives more weight to the right of the persons
form unions, associations, or societies for
purposes not contrary to law shall not be Victoriano v Elizarde
abridged.” - SC said that exception to csa when a persons is
prohibited from joing a labor organization.
Workers in private and public enterprises have a right to form Case of Edillon
organizations and unions for purposes not contrary to law. - refusal of payment of IBP dues. Citing or invoking his
right not to join a particular organization, the SC
warned that should he not pay or refuse to be a
Sec 3 (2) art 13
member of the IBP then he will not be allowed to
“It shall guarantee the rights of all workers to
practice law.
self-organization, collective bargaining and
negotiations, and peaceful concerted activities,
including the right to strike in accordance with Employed in public sector
law. They shall be entitled to security of
tenure, humane conditions of work, and a How about government employees? Do they have a right to
living wage. They shall also participate in form organization?
policy and decision-making processes
affecting their rights and benefits as may be Yes, Sec. 8, Art. 3, the right of the people including those
provided by law.” employed in public enterprise/government service.
For those employed in private sectors, they are given the right
to stage strikes in accordance with law.
Sec. 2 (5), Art. 9
Provides that those employed in the public sectors have the
The right to form such or to become a member of any
organization includes also the right not to join any organization. right to form their own organization or labor organizations.
If in the company there is already a union, one may not be Do they have the right to stage a strike?
compelled to be a member of that union. Except, where in
such bargaining unit there is already a collective bargaining
GSIS v Kapisanan ng mga Manggagawa ng GSIS
unit, in where it contains a close shop provision.
G.R. No. 170132, December 6, 2006
30
Atty. Renato Galeon
➢ SC while they have the right to form their organization writ of habeas data may only be directed against a private
yet they do not have the power or authority to individual or a private entity engaged in the business of
conduct strikes gathering, collecting or disseminating of personal data or
information. The school said further that it was not engaged in
To allow them would cripple the delivery of basic such business. According to the SC, The contention of the
services. school that the writ of habeas data may only be availed of in
cases of extrajudicial killing or forced disappearances is not
They may not have the right to strike but they can air meritorious. According to them, this remedy is available in all
out their grievances through a grievance machinery cases wherein there is threat or invasion of a person’s privacy in
system. life, security or liberty. In other words, the writ is not solely
confined to cases pertained herein. As for the contention that
CSC 010113, every government offices must have their own that writ could not be availed of against the STC because it was
not engaged in such business. The SC declared that STC
grievance machinery mechanism. So that the employees have
obviously misread the rule. There is nothing in the rules that
the faculty to air out their grievances
the private individual to whom the writ will be directed must be
engaged in the business of gathering data among others and it
Sec. 3, Art. 3 is enough that the private individual or entity is engage in
“(1)The privacy of communication and gathering, collecting or disseminating information. So the fact
correspondence shall be inviolable except that an entity or a private person gathers information or
upon lawful order of the court, or when public personal information without the authority of the aggrieved
safety or order requires otherwise as precrbied party, then that can met out in the case involving the
by law. availability of the writ of habeas data. But the saving grace for
STC in that case, according to the SC, the pictures subject
matter to the case were however posted in the Facebook
(2) Any evidence obtained in violation of this
accounts of the students. And what was more telling according
or the preceding section shall be inadmissible
to SC, is that the school administration got hold of these
for any purpose in any proceeding.” pictures not because the school resorted in hacking in that
these pictures were rather downloaded by students who are
Writ of Habeas Data friends in Facebook of the complained students. According to
the SC, in effect by posting those picture in the Facebook
Nevarez v STC, G.R. No. 202666 account whereby the students did not restrict the setting
September 29, 2014 thereof to custom only or only me, then according to SC, they
Graduating students of the Saint Theresa’s College Cebu were thereby lose their privacy over those pictures. Noting that in
barred from participating in the graduating rites. The case is the Facebook, according to the SC, there are settings that are
supposedly to enjoin the school for implementing such ruling. available to the facebook user, one is public, friends of friends,
In that case, the respondent school filed its answer attaching friends, custom and only me. The SC said that it is wrong to say
thereto the pictures showing that indeed the students were that there is no degree of privacy if ever a person uses a
committing such violation of the schools rules and regulations. facebook account. There is still privacy provided that the
The pictures were some of them were wearing just brassieres, facebook account owner would have to press the necessary or
were some also were drinking and smoking. The students filed choose particular setting probably only me or customs.
a petition for the writ of Habeas Data in the hope of Pressing such options, by doing such you thereby lose some
suppressing the submission, the photocopying as well as the degree of privacy. Because, the SC noted that in Facebook, one
presentation in evidence of the pictures showing the students or a person may be friends who are total strangers. Another,
in a rather compromising situation. So the writ of habeas data it’s normal in facebook to have hundreds or even thousands of
was availed of by the petitioners in the hope of suppressing the friends. More than that, if you post a picture in your Facebook
presentation in evidence of the subject pictures. The RTC account and your friend would press the button like or share,
denied the application and the case was elevated further to the even those who are not your friends may have a chance of
Supreme Court. Before reaching the SC, it was argued by the viewing those pictures. In effect, by not opting for a setting
STC that the writ of habeas data would be unavailing in that that is custom or only me. You thereby lose some degree of
case because according to the STC, the writ of habeas data privacy in posting pictures in the account. Basis why the SC said
could only be availed of in cases relating to extrajudicial killing that the writ of habeas data would not be availed of by the
or forced disappearances. And more than that, the school also students in that case because in that situation there was no
contended that the writ of habeas data could not be directed privacy to speak of in respect to the pictures posted. But again,
against the respondent school because according to them, the the SC accentuated that there are still some degree of privacy
31
Atty. Renato Galeon
provided that it has to be particularly chosen by the account that the data stored in his computer could only be
holder. accessed through a password, somehow probably
Right to privacy and communication is they have resorted into hacking and the CSC was able
to phish out the data stored in the computer. So that
very important in fact sacred such that where he questioned the admissibility of the data
Sec. 3 (2), Art. 3 presented in evidence, invoking his right under Sec 3
(2), Art 3. But in that case, the SC ruled in favor of the
(2) Any evidence obtained in violation of this respondent CSC. Because there was a memorandum
or the preceding section shall be inadmissible that CSC 10-2002 which contained to waiver in
for any purpose in any proceeding.” respect to privacy of the data anything that is stored,
created, set or received through the computer using
the internet or computer network of the CSC. And
Provides, any evidence obtained in violation of the preceding under that memorandum, it was clearly stipulated that
paragraph shall be inadmissible for any purpose in any the use of any password does not give the owner or
proceeding. user of the computer any degree of privacy over
anything that is stored in the computer that is
So sacred that there are provisions in the RPC penalizing in assigned to him by the CSC. In effect, pursuant to that
violation of the right to privacy and communication. Article memorandum, there was some kind of a waiver on
290, defines penalizes discovery of secrets through seizure the part of the accused in respect to the data that
of correspondents, it becomes illegal for a person to seize were stored in the computer unit assigned to him.
the letters correspondence or papers addressed to another And that was of course the saving grace on the part of
person and revealing the secrets thereof to another person. If the CSC.
you seized the correspondents addressed to another person
and reveal the contents thereof to another person, you are Privacy of communication and correspondence is sacred such
thereby liable under article 290. that other than Art 290 of the RPC, we have the Article 291 of
the same RPC penalizing revelation of secrets with abuse of
Briccio Pollo v Civil Service Commission G.R. No. office. It defines and penalizes the crime of revelation by a
181881, October 18, 2011 manager, servant or an employee who acquires the secrets of
➢ Complaint was lodged before the CSC that there was his employer or master and reveals the same to another
a certain employee at the legal department of the CSC person. Indeed, Article 291 of the RPC accentuates the
who would act as a lawyer of one of the party litigants importance or the sanctity of our right to privacy over our
or those persons having cases before the CSC. In that, communication and correspondence.
it was alleged that this personnel whose name was
not divulge in the complaint would prepare pleadings Article 292 of the RPC, penalizing revelation of trade
in favor of a person who have a case pending before secrets. There it is provided that a person in charge, an
the CSC. Acting on that complaint, there was, more or employee, or a workman who reveals the trade secret of his
less a search or a raid conducted on the computers employer if he is employed in a trade establishment or a
that were supplied to the employees assigned to the manufacturing establishment is already considered as a crime.
legal department of the CSC. It was found out that the So indeed, there ought to be privacy in our communications
computer that was used by the POLLO contained files, and correspondence.
pleadings that was prepared by him in favor of party
disputants or persons having a cases before the legal Article 299 (b)(2) of the RPC, penalizing as a form of robbery
department of the CSC. He was terminated and of in an inhabited place if a person takes away a closed
course protested to the presentation of evidence the receptacle, wardrobe or a chest in order to be broken or be
data or the files that was gathered from his computer, opened outside the place where the receptacle is located.
and objected to the admissibility thereof. The accused Indeed, there ought to be privacy in our communications and
argued that the same could not be admitted in correspondence.
evidence because such data or information, the
pleadings, was gathered from the computer assigned Going back to Article 290, excepting from the coverage or
to him in violation of his right to privacy,
from the punishment of crime discovery of secrets to revelation
communication and correspondence. According to
of seizure or correspondence are the parents, persons
him, he has some degree of privacy considering that
entrusted with the custody of the minor or the guardians in
he was even using a password before data stored in
respect to papers or letters of their minor children or the wards,
the computer could be accessed. Indeed, it was true
or spouse in respect to papers and letters of either of the
32
Atty. Renato Galeon
spouses. This proviso under Article 290 of the RPC all the that Sec 4 of R.A. 4200 has this exclusionary rule excluding in
more makes me question the wisdom in the ruling of the case evidence anything that is obtained in violation of that law, be
of Zulueta. it a judicial, quasi-judicial, administrative or legislative
proceedings. But again, in the given situation the one
Where the wife ransacked the correspondence of her husband responsible for the unauthorized recording or wire-tapping of
where the SC said that it should be inadmissible so how could the conversation is a private person. Would that be
that be when it runs contradictory in the case of admissible?
Bongcarawan? Then you have Article 290 excepting the ➢ No, because R.A. 4200 is very clear that the crime is
spouse from incurring any liability if he intercepts the committed by any person. Any person, he be a private
communication and correspondence of his/her spouse. person or a public officer or an agent of the state.
➢ That’s why I don’t understand the ruling in the case of That is why where there is evidence obtained in
Zulueta. Well that is the ruling of the SC. Probably the violation of the Anti-Wire Tapping Act, if you object to
male chauvinist of the SC justices therein are afraid its admissibility, do not invoke this exclusionary
that their wives would do that to them. So, it pays provision under the second paragraph of Sec 3, Art 3
really to be a good husband. but invoke the exclusionary provision under Sec 4 of
R.A. 4200. Kay kung muadto ka sa Sec 3(2), Art 3
Other than the provisions in the RPC, we also have the special then the case of Bongcarawan would be a good
law which highlights or accentuates the importance of this right argument. So you invoke not the exclusionary rule
to have privacy over our communications and correspondence. under the Constitution but rather Sec 4 of R.A. 4200.
But you may want to fortify the same by revocation of
the exclusionary rule at Sec 3(2), Art 3 but your
R.A. 4200, the Anti-Wiretapping Act primary ground should be Sec 4, R.A. 4200.
This law prohibits any person, who not being authorized
by all parties to a private conversation or spoken word As the name of the law suggest, it prohibits wire-tapping that’s
from a tapping a wire or cable or any device or any why it’s commonly referred to as the Anti-Wire Tapping act.
arrangement so as to secretly overhear, intercept, or But do not be misled by the title of that law, because that law
itself likewise authorizes wire-tapping for as long as the same
record such spoken word or language with the use of
is done upon application by law enforcement agency and there
devices such as dictaphone, dictagraph, walkie-talkie and is an order by a competent court, the RTC allowing wire-
tape recorder or however otherwise described. And tapping. But under Sec 3 of the Anti-Wire Tapping Act any
more than that, the Anti-Wiretapping Act prohibits mere such authorized wire-tapping pursuant to the order of the RTC,
possession of these unauthorized recording, it likewise may only be had in the following crimes:
prohibits and penalize crime the mere playing of these
unauthorized recording or communicating the contents → Treason
thereof either in writing or verbally or furnishing a → Espionage
transcription of contents thereof to another person. → Provoking War or Disloyalty in the case
of War
So what is going to happen if there is an unauthorized → Piracy
recording of a private communication or spoken word in → Mutiny in the High Seas
violation of the Anti-Wire Tapping Act? Will that evidence
stand in court? Is that admissible? If the ones responsible for
→ Rebellion
the unauthorized recording is a private person? → Conspiracy and Proposal to Commit
Rebellion
In the case of Bongcarawan if the illegal search or arrest in → Inciting to Rebellion
perpetrated by a private person without the active → Sedition
participation of the State then any evidence obtained thereby
→ Conspiracy to Commit Sedition
may be admissible. Because in the provisions in the Bill of
Rights may only be invoked against the State. The provisions → Inciting to Sedition
therein govern the relationship between the state and the
private persons or citizens but not the private relations by and Only in these crimes may there be a valid order from the RTC
among private citizens which is the import in the case of authorizing law enforcement agencies to resort to wire-tapping.
Bongcarawan. If the unauthorized recording in violation of the
Anti-Wire Tapping Act is done by a private person the Take note further that under the Anti-Wiretapping Act, any
question now is will the evidence be admissible? Take note such court order allowing wiretapping is effective only for a
33
Atty. Renato Galeon
period of 60 days and this period is to be reckoned from the businesses or in private homes. There is nothing
issuance of such order allowing wiretapping. Only for a limited sinister according to the SC with the use of telephone
period of 60 days reckoned from the issuance of such order extension wire and that is not among the devices that
allowing wiretapping. And once there are recordings in your were prohibited under the Anti-Wiretapping Act.
name, this has to be fully accounted for by the persons Gaanan was acquitted.
enforcing the law. It has to be supported by affidavits stating
the number of copies made, the time, place and also the dates Socorro Ramirez v CA, G.R. No. 93833
which such recording were made. In other words, the August 28, 1995
recordings pursuant to such order must be fruitfully accounted ➢ Ramirez and Garcia were officemates but it would
for. It has to be supported by sworn statements and affidavits. appear that Garcia was the superior officer of Ramirez.
But this Ramirez was however chided by Garcia, so
In respect to Anti-Wire Tapping Act the case of during their conversation Garcia berated Ramirez
Gaanan v Intermediate Appellate Court calling her “bobo ka talaga, wala kang utak” that were
➢ Gaanan is a lawyer, and then there was this case actually defamatory statements imputed against
involving two personnel of the Don Bosco Technical Garcia. But unknown to Garcia, Ramirez recorded their
School. A certain Montebon filed a case of direct private conversations. Using that evidence, Ramirez
assault against Laconico and the lawyer for Montebon filed a case for damages against Garcia for supposedly
was a certain Atty. Pintor. He called up Laconico maligning her reputation causing her moral and
calling the accused in that case as they were mental anguish and anxiety among others. When
discussing about possible settlement. And of course, Ramirez presented in evidence the recorded
Atty. Pintor demanded payment from Laconico in conversations, Garcia filed a case for violation of Anti-
exchange for the dropping or dismissal of the case. It Wiretapping Act against Ramirez. In her defense,
so happened that the lawyer for Laconico was not in Ramirez argued that she could not be prosecuted and
town such that he called up Atty. Gaanan to come to be held liable for violating Anti-Wiretapping Act
his place to listen to the conversation in the event that because according to her while she was the one who
Atty. Pintor would call up again. Indeed, Atty. Pintor took the recording but she was a party to that private
called up and they were discussing about the possible communications. In other words, she argued that she
settlement pursuant in which Atty. Pintor demanded could not be held liable because she was not a third
payment of 8,000 to cover damages as well as party in that she was actually the party with whom
attorneys’ fees. During the conversation Atty. Gaanan Garcia had a private conversation.
upon the instance or with the permission of Laconico,
listened to the conversation by and between the two Then how could she be held liable? The question is, is
through or with the use of the telephone extension that correct?
wire. Laconico reported the matter to the defunct
Philippine Constabulary and in fact that operation was The wording of the Anti-Wiretapping Act is very clear,
staged supposedly for extorsion and when Laconico if any person who not being authorized by all parties
handed the money to Atty. Pintor he was arrested to a private conversation. So, while it is true that she
supposedly for extorsion. But it was not actually was a party to the private conversation, she took the
extorsion it was settlement. And in the case for recording without the knowledge and acquiescence of
extorsion, Atty. Gaanan despite executing an affidavit the other party. And that makes her liable for the
stating that he heard the private conversation Anti-Wiretapping Act.
between Pintor and Laconico when Gaanan used the
telephone extension wire. Upon learning of that, Atty. What about the fact that you are recording our discussion?
Pintor countered by filing a case against Gaanan for Can I hold you responsible? Did you ask for my permission?
violation of the Anti-Wiretapping Act. Gaanan was ➢ Probably the answer to that is the case of
convicted by the RTC in like manner that he was Felipe Navarro v CA G.R. No. 121087
convicted by the CA. But the SC acquitted Atty. August 26, 1999
Gaanan. According to the SC, what the Anti- Navarro was a policeman. This happened in Lucena
Wiretapping Act prohibits is the employment of a City where three media personnel went to a particular
device with a purpose of secretly overhearing or club because it was reported that this club was
intercepting any private conversation. But, in respect somehow displaying indecent shows. So they let them
to a telephone extension line that device is not observe while it was about midnight, it was then one
purposely use so as to secretly intercept a private of the dancers was already performing some kind of a
conversation because that is normally used in nude dance. In that, in the process she was starting to
34
Atty. Renato Galeon
remove her garments. This certain Jalbuena, took his Gonzales then DOJ Secretary during the time of Gloria
camera and took pictures of the dancer and was directed or prohibited the playing of the so-called
noticed by the bouncer as well as the club manager ‘Hello Garci’ tape contending in the litigation those
ensuing a confrontation and the three ran away and who would play such unauthorized recording.
went to the nearby police station to report what was Gonzales threatened that those who would play such
happening inside the club. Navarro at that time was taped would be prosecuted in violation of the Anti-
off duty and was having a drinking spree with his Wiretapping Act. But it was questioned by Chavez,
fellow police officers and then of course Jalbuena according to him that would amount to a suppression
reported that they will show to the desk officers. But it or a violation of the freedom of speech, and of
would appear that this police station was under the expressions and more than that the freedom of the
payola of the owner of the club. Because the owner press. If there is an attempt to muzzle the media or
and the manager were at the police station and told prevent them from airing the so-called tape. In the
Navarro that Jalbuena who took pictures of the end, the SC sided with Chavez for one according to
dancers was about to perform a strip dance. Navarro the SC, why would Gloria Arroyo complain where in
of course got mad and confronted Jalbuena because the first place she denied at first that she was the one
he said “Hindi mo kilala ang binabangga mo…”, so talking to Garcia over the telephone and more than
there was a heated argument between Jalbuena and that there was no showing or any iota evidence to
Navarro and this Lingan intervened and in the process prove that it was indeed a result of an unauthorized
it was Lingan and Navarro who then had another wiretapping. The source of such recording was never
argument and in the process Lingan challenged authenticated. It was presumptuous on the part DOJ
Navarro to a fist fight. But before Lingan could act, to say that it was a result of an unauthorized
Navarro pistol whipped Lingan and there he was wiretapping. More than that, the SC said that it would
down in the floor and when he was about to get up, amount to a suppression of the freedom of the press.
he was boxed in his forehead by Navarro and Lingan So, all things considered, SC said that the directive of
was floored again that ultimately lead to his death. In Gonzales therefore is violative of the Constitution.
the ensuing trial, Jalbuena testified. Because unknown
to Lingan and Navarro, Jalbuena recorded the heated It’s not only R.A. 4200 which authorizes wiretapping upon
exchange between the arguments involving Navarro proper application because there is another law and that is the
and Lingan. And when that was presented in evidence, Human Security Act of 2007 R.A. 9372. Under which, in
Navarro objected saying that it was obtained in particular Sec. 7 thereof, the Court of Appeals may authorize
violation of the Anti-Wiretapping Act because wiretapping for persons suspected of or guilty of the crimes or
according to Navarro such was recorded without the acts of terrorism. But take note that under the law the one
knowledge and acquiescence of Navarro and even authorize or has the power to issue such order allowing
Lingan. But the SC disagreed, because according to wiretapping is not the RTC but the Court of Appeals.
the SC what the Anti-Wiretapping Act prohibits is the
unauthorized recording of a private conversation, and Under the Anti-Wiretapping Act, the proper court that could
the same was not a private conversation. More than
issue and order authorizing wiretapping is within the RTC. But
that, they had a heated argument so they could
under the Human Security Act for acts involving terrorism, the
reasonably expect that other people would hear such
proper court that could issue an order allowing wiretapping is
conversation. And that answers the question whether
the Court of Appeals and validity of such order is allowed to 30
or not you can be held liable for Anti-Wiretapping Act
days but such period is to be counted from the time that such
for recording our discussion.
a copy of such order is served upon or received by the
applicant for such purpose. As for R.A. 4200, the 60 day
Very still, if you are participating in an admin investigation,
period is to be reckoned from the date of the issuance allowing
better to ask permission to announce your intention to have the
wiretapping. Under R.A. 9372, it’s only good for 30 days but
proceedings recorded. Although, you can basically can take
should be counted from receipt of a copy of such order by the
records of such proceedings especially if the same can be
applicant or the law enforcement agency implementing such
done in the presence of many people because there you
order of the CA.
cannot say that such proceeding is confidential n nature.
Chavez v Gonzales G.R. No. 168338

February 15, 2008
➢ the one mentioned relevant to the discussion on
freedom of the press, and of expression where
35
Atty. Renato Galeon
FREEDOM OF RELIGION US CASES:
Theodore vs Board of Education
Sec. 5, Art 3 - US SC declared as invalid the practice of the members
“No law shall be made respecting an of the society in distributing bibles in public school
because in doing that, they solicited the assistance of
establishment of religion, or prohibiting the free
public school teachers. Through the teachers, the
exercise thereof. The free exercise and
society will distribute the request forms which will be
enjoyment of religious profession and worship, collected by the teachers, then turn them over to the
without discrimination or preference, shall society. The society would then distribute the bibles
forever be allowed. No religious test shall be as requested by the students through the assistance
required for the exercise of civil or political of public school teachers. SC said that that should not
rights.” be had because it would run afoul with the separation
March 18, 2017 of the church and the State.
Section 5 Article III of the 1987 Constitution is commonly Engel vs Vitale

referred to as the non-establishment clause, considering the - concerning the practice of requiring students of public
fact that the State is enjoined to stay neutral. The State, schools to recite the school prayer that was composed
therefore, shall not sponsor any particular religion and like by the board of regents. According to the SC, it would
manner that it is prohibited from discriminating a particular run afoul with the separation of the church and the
form of religion. State. The board of regent has no business composing
a prayer to be recited by the students in public school.
In other words, it protects any and all forms of religion and it
should not favor one over the others for disparages. PH Jurisdiction:
Gerona vs Sec of Education
This section is also in the furtherance of the policy that is - where the students who were members of the
announced under Section 6 Article 2.1 It is said that the fusion Jehova’s sect were expelled because of their stubborn
of the State and the religion destroys the State or destroys the refusal to participate in the flag ceremony. They would
religion. But more than that, it is prejudicial or detrimental to not to participate and refused to salute the PH flag
the people. ie land grabbing by triads during the Spanish Era. because to them, they are not allowed to worship any
image. SC said that PH flag is devoid of any religious
This section should be read in conjunction with Sec 6 Art 2. significance. It has no religious implication, rather it is
Other provisions in the Constitution that accentuate the a symbol of Statehood(?) and unity. In this case, SC
separation of the church and the State: affirmed the expulsion of the students who wouldn’t
1. Section 29(2) Article 62 want to participate in the flag ceremony.
2. Section 2(5) Article 9(3)3
3. Section 5(2) Article 64 Imbong vs Ochoa
If you will examine decisions decided by the SC, and even US - where the SC refused to rule on the morality of the RH
SC, there are a lot of cases where there was a strict observance law on the basis of, or applying the doctrine of the
of the separation of the church and the State. opposing religious sectors because according to the
SC, there is indeed a separation between the church
and the State. What may be legal may not be moral.
And what may be moral may not necessarily be legal.
1
The separation of Church and State shall be inviolable.
2
No public money or property shall be appropriated, applied, paid, or Islamic Da’wah Council vs Office of the
employed, directly or indirectly, for the use, benefit, or support of any Executive Secretary, G.R. No. 153888,
sect, church, denomination, sectarian institution, or system of religion,
or of any priest, preacher, minister, or other religious teacher, or July 3, 2003
dignitary as such, except when such priest, preacher, minister, or - Through EO 46, the Office of the Muslim Affairs was
dignitary is assigned to the armed forces, or to any penal institution, or
conferred power to classify food as passing the halal
government orphanage or leprosarium.
3
xxx Religious denominations and sects shall not be registered. xxx standard or accreditation. It was questioned by the
4
xxx one-half of the seats allocated to party-list representatives shall Islamic Da’wah Council contending that any such
be filled, as provided by law, by selection or election from the labor,
power should not be vested on a government office
peasant, urban poor, indigenous cultural communities, women, youth,
and such other sectors as may be provided by law, except the religious because of the separation of the Church and the
sector. State. SC upheld the position of the petitioner
36
Atty. Renato Galeon
because indeed, in determining whether or not the Section 3(3) Art XIV
food would pass the halal standard, what would be Allowing the optional teaching of religion in public
applied is the doctrine enunciated in the Qur’an, not elementary and public high schools as long as the
our civil laws. It was error on the part of the President
same is done with the written consent of the parents
to have conferred on the OMA the power to classify
or the guardians of the students.
foods as halal accredited.
Taruc vs Bishop dela Cruz, G.R. No. 144801, Section 4(2) Art XIV
Which provides that educational institutions shall be
March 10, 2005
wholly owned by Filipinos except those established by
- It was an intramural dispute because Taruc was
suspended and declared heretic. He was
religious groups.
excommunicated from the church and he questioned
his expulsion from the church. The SC said that such There are provisions in the Constitution that strictly observes
case could not be taken cognizance by the regular the separation of the church and the State but there also
courts because in recording that dispute, what would provisions that somehow gives due accreditation to the church.
be applied will not be the laws of the republic but the That explains why there are cases decided by the SC where
doctrines of the church concerned. So when the there is ostensible relaxation on the application of the doctrine
dispute is purely intramural in character, then that of the separation of the church and the state. Examples are the
cannot be decided by our courts. But if the dispute ff:
concerns property rights, but in the process we need
to touch on the doctrines of the church, then there’s a
good chance that the case maybe taken cognizance if
US Cases:
the primary purpose is to adjudicate property rights.
Sorac vs Causnon(?)
American Bible Society vs City of Manila - where the students of public schools were allowed to
- our SC said that City of Manila could not impose tax take the time off to attend the religious instruction
or license fee with respect to the distribution of bibles that is conducted in the nearby private building on
by the ABS because in doing that would run afoul with the condition that they should make up for the lost
the freedom of religion that is guaranteed by our time. That was questioned and it was alleged that it
Constitution. would be violated of the separation of the church and
the state because public students would be receiving
The wall that separates the church and the state should not be religious instructions. But SC somehow relaxed the
a wall of hostility because members of the church are also the separation of the church and the State and said that it
very citizens of the State. was perfectly fine for as long as the students
concerned should make up for the time that was lost.
That explains why there are also provisions that the State
would somehow steps backward and give due accreditation to Bureau of Education vs Allen
the church, to wit: - concerning the distribution of the free textbooks
including those students enrolled in the parochial
schools. It was questioned contending that it was
Section 29(2) Art 6 which may allow the disbursement of violative of the separation of the church and the State
public funds in favor of priests, religious ministers among but the SC disagreed because the primary purpose of
others if that person is assigned in the AFP, penal institutions, such policy was to provide textbooks to all students
government orphanage or leprosarium. without distinction or preference.
As a rule, there should not be a disbursement of public Everson vs Board of Education

funds in favor of a priest except if the priest is assigned in - concerning the free transport system that somehow
those cases above. benefited also the students enrolled in parochial
schools. SC said that there was nothing wrong
Section 28(3) Art 6 because the primary purpose was to provide free
Recall the discussion in taxation. There is that transportation to all students without distinction or
provision that church properties that are actually, preference.
directly, and exclusively used for religious purposes
shall be exempt from real property tax.
37
Atty. Renato Galeon
where she was able to present an evidence, a
PH Cases: document pledging faithfulness, which to the
members of the Jehova’s sect, is already accorded
respect just like that of a marriage contract. SC said
Aglipay vs Ruiz that if that is the view of the Jehova’s sect, then who
- whereby on occasion of the 33rd Eucharistic Congress, are we to disagree.
the Bureau of Postal Services printed commemorative
stamps. The original design of which was a chalice
with a grapevine but it was changed to the map of the It should be noted that freedom of
Philippines where the stamp across the name which religion consists of:
reads 33rd Eucharistic Congress. Monsieur Aglipay
contends that by doing that, the State simply favored
the Roman Catholic Church. SC disagreed, saying that a. Freedom to believe
the primary purpose there is to promote PH as the – this right is absolute
tourism destination on occasion of that activity. SC
further noted that not a single centavo out of the
b. Freedom to act on one’s belief
proceeds of such sale of the stamp would be donated - this is not absolute
to the Roman Catholic Church, hence, there was no - includes also the freedom not to act on one’s belief.
violation. This is illustrated in Imbong vs Ochoa and this was
used as basis by our SC in declaring as void the
Garces vs Estenzo provision under Section 5.34 of the RH Law which
- where the action of brgy officials in purchasing a provides in essence that doctors, nurses, health
religious icon in connection with their fiesta was workers employed in the government hospitals,
questioned for being violative of the separation of the offices, agencies, or departments could not become
church and the state. The funds that they used in members of the so called contentious group, which is
purchasing the icon came from private donations. It a group of religious members who are justified in
did not come from public funds. SC: not violative refusing to administer medical procedures in the
furtherance of RH Law. Under Sec 5.34, even if you
Archdiocese of Bacolod vs COMELEC are a member of such group, you cannot refuse in
- where SC sustained the refusal of the church in performing your job. SC said this provision is invalid.
refusing to tear down or remove the poster: Team
Buhay, Team Patay giatbangan sa Team Tatay.
Section 5 Article III further provides that no religious test
shall be required for the exercise of civil or political rights.
Ebralinag vs Division Superintendent
- This case was the one in which the ruling in the case
Of course, it cannot be made as a condition for you to vote or
of Gerona was overturned. In Gerona, the SC
to exercise your right to vote to become a member of a
sustained the expulsion of the students who refused
to participate in the FC. But in this case, same thing
particular religion.
happened again. This time around, the SC had a 360-
degree somersault. The religious view of the members
In the case of Summers where a lawyer passed the bar exam
of the Jehova’s sect should be respected if according given by the State of Louisiana but he was not allowed to
to them, the PH flag has a religious significance. SC practice his profession as a lawyer because he refused to take
said, so be it. an oath to swear his allegiance to the US Constitution because
of the provision “all persons are required to render personal
Controlling doctrine: Ebralinag military service in defense of the State”. According to
Summers, to kill is against his religion, but he was not allowed
Estrada vs Escritor to practice because he did not take his oath. He petitioned to
- Here, the respondent is a court employee. She was the SC and the SC sustained the action of the Court of
sued for immorality because she cohabited with a Louisiana.
man other than her husband but she has long been
separated from her husband. If you look at the civil If the freedom of religion would conflict with the right of
service rules, that is immorality. But our SC exonerated the state to survival, then naturally the latter should be
the respondent notwithstanding the fact that the upheld.
husband was very much alive while she cohabited
with a man other than her husband. SC said that
38
Atty. Renato Galeon
In fact, if it is against your will to kill or be killed, if you That explains why there was a travel ban with respect to
are required to render personal service, you may want to female entertainers abroad. It was challenged but the
be employed not as combatant but as an ordinary clerk ban was sustained.
or worker. This happened in People vs Sosa. Sosa (or
Versosa?) was convicted for refusing to render the In Marcos vs Manglapus
compulsory military service on account of his religious - where a few years after the EDSA 1, there was an
belief. SC said that you cannot refuse to render attempt on the part of the heirs of Marcos to bring his
compulsory military service if that is required by the remains back to the PH. But there was a ban imposed
State. by the Corazon Aquino administration. The Marcoses
argued that they have the right to travel. But SC
sustained the action of the government because at
LIBERTY OF ABODE AND TRAVEL that time, there was as yet no political stability.
One thing you should consider if you are on bail, you are not
Section 6, Article 3 free to travel overseas without asking permission from the
“The liberty of abode and of changing the court, otherwise, a hold departure order maybe issued against
same within the limits prescribed by law shall you.
not be impaired except upon lawful order of
the court. Neither shall the right to travel be What happened to Arroyo vs De Lima? De Lima, then
impaired except in the interest of national DOJ Secretary, included the names of the Arroyo family
security, public safety, or public health, as may in the watch list. Under DOJ Circular No. 41, if your
be provided by law.” name is included in the watch list, you maybe barred
from leaving the country. It was questioned by GMA.
Liberty of Abode – pertains to our right to choose the place
SC sided with GMA. It issued a TRO against the hold
where we want to live.
departure order issued by De Lima. But De Lima openly
Only when there is a court order can one be compelled to disobeyed the SC.
change his residence.
NON-IMPAIRMENT OF
In Ruby vs Provincial Board of Mindoro OBLIGATIONS OF CONTRACT
- there was an ordinance requiring certain members of
tribe to live in an area just so their children can
receive proper education. This was questioned Section 10, Article 3
because according to the petitioner, that violated the “No law impairing the obligation of contracts
liberty of abode on the part of the persons concerned. shall be passed.”
But our SC upheld the validity of the ordinance. SC
said that it was a valid exercise of a delegated police Contract referred to in Sec 10 Article III does not include
power because the purpose thereof is noble. marriage contract because this provision prohibits the
enactment of a law that would impair vested rights – rights
In Villavicencio vs Lukban that are conferred pursuant to contractual obligations.
- the Mayor of Manila rounded up some 170 women of
ill repute and deported them to Davao. It was When it comes to marriage contract, that is imbued with public
questioned. SC said that even if those women are interest such that a law pertaining to marriage may have
considered to be women of ill repute, they still have retroactive application affecting marriages prior to the
their rights, one of which is the freedom of abode. It enactment of the law.
should be respected according to the SC.
What is prohibited under this provision is a contract
Liberty of Travel – refers to the right to travel abroad such that has a retroactive application that is prejudicial or
that if you have the means, you may want to travel to US or that may impair vested rights pursuant to a contract.
Europe. But just like the liberty of abode, it may be restricted in
the name of national security, public health, public safety There is impairment when there is a diminution of the value of
among others. the obligations under the contract.
39
Atty. Renato Galeon
Example:
Prescription period for written contracts is 10 years. In like manner that the power of taxation is also superior
compared to the non-impairment clause.
Let us assume that Atty Gravador borrowed money from Recall Cassanova vs Hord
Atty Galeon secured by a collateral constituted of his - When a tax exemption is granted pursuant to an
parcel of land by way of real estate mortgage. Obligation onerous contract, that should be respected. Even if
is due in 2010. Atty Galeon has until 2020 to foreclose the tax exemption is granted pursuant to a contract,
but it is given gratuitously, then it can be withdrawn
the mortgaged property.
or revoked with or without reason.
Assume further that in 2018, Congress enacted a law In like manner that the exercise of the power of eminent
providing that actions founded on written contracts domain is superior compared to the non-impairment clause.
shall prescribe only in 5 years. The same to apply to
contractual obligations as of 2010 or beyond. Example:
Atty Galeon rented a parcel of land from Atty Gravador
Would that be valid? No. That contract has a retroactive for agricultural purposes. But the State expropriated the
application that is prejudicial to Atty Galeon’s interest. land to be utilized as a site for government facilities.
This will preclude Atty Galeon from filing foreclosure
proceedings as well as from collecting the amount due Can it be expropriated?
because the obligation has already prescribed. - Yes. Because the expropriation is pursuant to eminent
domain.
Note: What is prohibited is a law that has retroactive
application that is prejudicial to the interest of the Non-impairment clause is only subsidiary to the inherent
contracting parties because even if that law has a powers of the State.
retroactive application but that is favorable to the
contracting parties, then that is not prohibited by The law proscribed in this provision is one that is not penal in
Section 10 Article III. character. Because if a law that has retroactive application is
enacted that is prejudicial to the parties, that is invalid not
Example: because of Sec 10 Art III but pursuant to Sec 22 Art III which
Atty Gravador sold to Atty Galeon his parcel of land in prohibits the enactment of ex post facto law or bill of attainder.
March 2017. Under the existing laws, there should be a
payment of 6% capital gains tax. But a law is enacted in EX POST FACTOR LAW AND BILL
2018, with retroactive application, exempting the CGT OF ATTAINDER
in such particular transaction.
Section 22, Article 3
Is this invalid? “No ex post facto law or bill of attainder shall
No. Valid because this is not the law that is prohibited
be enacted.”
under Sec 10 Art III. This is also not prejudicial, but
favorable to the parties.
Ex post facto law – a law that is penal in character, has
Recall the police power discussion. The non-impairment a retroactive application that is prejudicial to the interest
clause is subservient to a valid exercise of any or all of the of the person.
inherent powers of the State. It is subservient to police power.
Example:
Recall the Ortigas case • A law which makes an act a crime although it was not a
- It was clearly stipulated in the deed of sale that the crime at the time of the commission.
land should only be utilized for residential purposes • A law which makes an offense graver than what it was at
but subsequently it was reclassified pursuant to an the time of the commission.
ordinance. The zoning ordinance was sustained. It was • A law which imposes a higher penalty than what is
a valid exercise of delegated police power of the imposed at the time of the commission of the offense.
State. Although retroactive application, that should be • A law which lessens the quantum of evidence required
respected because police power is superior to the than that at the time of the commission of the offense.
non-impairment clause.
40
Atty. Renato Galeon
• A law which removes a protection afforded to persons at already imposes a punishment without a benefit of
the time of the commission of the offense. ie longer trial.
prescription period for crimes
FREE ACCESS TO COURTS
Note: If penal in nature, covered by Sec 22. If not penal in
nature, Sec 10 applies.
Section 11, Article 3
Case in point: “Free access to the courts and quasi-judicial
Republic vs Fernandez bodies and adequate legal assistance shall not
- A law was passed imposing a tax on properties be denied to any person by reason of
acquired during the Japanese occupation. It was poverty.”
assailed of as invalid for being supposedly an ex post
facto law but SC said that it was not an ex post facto This provision has long been implemented such that we have
law noting that it was a tax law, not a penal law. agencies of the government providing assistance to indigents:
Public Attorney’s Office, if you happen to be the accused in the
People vs Guido (or Velo?) criminal case or defendant, and Public Prosecution’s Office,
- At the time the commission of the offense, what was providing free legal services if you are the complaining party.
required to sustain a judgment where death penalty is
imposed, is unanimous votes of the justices of the SC
but Guido (or Velo?) was convicted. When the case SUSPENSION OF THE PRIVILEGE
was on appeal to SC, another law was enacted OF THE WRIT OF HABEAS
providing that the votes of at least 8 justices would
suffice to sustain a judgment where death penalty is CORPUS
imposed. SC said that it is valid because although that
law touches on death penalty, it concerns mainly on Section 15, Article 3
procedural rules. It is actually not penal in character. “The privilege of the writ of habeas corpus
shall not be suspended except in cases of
People vs Estrada invasion or rebellion when the public safety
- Erap got prosecuted for supposedly violating RA 9160 requires it.”
which penalizes as a crime the opening of anonymous
bank account. But Erap was prosecuted for an act that This provision should be read in conjunction with Section 18
was done prior to the enactment of that law. When he Art VII, conferring upon the president intermediary powers
was prosecuted for violating the law which was
which includes the power to suspend the writ of habeas
subsequently enacted, the SC said that that could not
corpus.
be done because that could be considered as ex post
facto law if applied to Erap.
Under Sec 15 Art III, there are only few conditions in which
writ of habeas corpus may be suspended. Only in cases of
But even if the law is penal in character, and even if it has a
invasion, rebellion, or when public safety requires it.
retroactive application, but its retroactive application is
beneficial to the person, the law is valid. It becomes only an ex
What can be ordered suspended is not the filing of the petition
post facto law if the retroactive application is prejudicial to the
for writ of habeas corpus, but only the privilege of writ of
person. Such that under Sec 19 Art III, death penalty imposed
habeas corpus.
shall be reduced to only reclusion perpetua.
In other words, even if the president declares that there be a
Bill of Attainder – a law which inflicts punishment without the
suspension of the privilege of the writ of habeas corpus, the
benefit of trial.
aggrieved party can still file a petition for habeas corpus in
case of illegal detention. The filing of the petition is not
In Ynot vs IAC prohibited. The court can still issue a writ of habeas corpus
- there was EO No. 6 prohibiting the inter-provincial commanding a person to produce the warm body of the person
transport of the carabaos without permit. Ynot
detained but the writ will just be returned answered if it is
transported his carabaos and was confiscated outright
established that at such time, there is already a proclamation
even prior to a hearing. Among other things, SC
by the president suspending the privilege of the writ of habeas
declared the law invalid for being a bill of attained. It
corpus.
41
Atty. Renato Galeon
Under Sec 18 Art VII, there are numerous limitations imposed Peonage, where a person is compelled to perform services to
on the suspension of the privilege of habeas corpus: pay off his monetary obligation, is also not allowed. Art 274 of
• initially, it shall only be good for 60 days the RPC punishes a creditor if he compels his debtor to
• within 48 hours following such suspension, the perform services just to pay his loan and interest.
president shall make a report to the Congress
personally or in writing. If Congress is not in session, it In Caunca vs Salazar, a petition for habeas corpus was filed
has to convene without need of special call, within 24 on behalf of the house helper who was not allowed to leave by
hours therefrom his employer unless she will be able to pay off her
• Congress is given the power to revoke such indebtedness; petition was granted. SC said that could not be
proclamation. Vote needed: majority, voting jointly. If done.
separately, there can be a deadlock. Note: Decision or
resolution by the Congress revoking such proclamation Exceptions:
cannot be overturned by the president. He cannot • If you are convicted of a crime
exercise his veto power. • Compulsory military service
• SC is now vested with the power the sufficiency of the • If you are enlisted as a merchant marine
factual basis for suspension of the privilege. There is a • Posse Comitatus – you can be compelled to render
relaxation in the on the rule of locus standi. It is assistance to apprehend criminals
enough that there is a verified petition filed by a citizen • Patria Potestas – parental authority; if you are still
of the PH. It does not matter if the petitioner is unable under parental authority, you can be compelled to do
to show that he is affected by such declaration. household chores
• Any such case must be decided within 30 days • If there is a strike pursuant to labor dispute, then the
following the filing. Secretary of Labor assumes jurisdiction over the same,
• Proclamation of the martial law does not ipso facto and it issues return to work order. They have to return
automatically carry with it the suspension of the to work, otherwise, they may be terminated.
privilege of the writ.
• Any such suspension may only apply to persons
charged with rebellion or any offense in connection
with invasion.
• Persons arrested must be judicially charged within 3
days following the arrest, otherwise, they shall be
released from the custody. Note: The right to bail shall
not be impaired even when the privilege is suspended
(Sec 13 Art III)
INVOLUNTARY SERVITUDE
Section 18 (1), Article 3

“No person shall be detained solely by reason
of his political beliefs and aspirations.”
(2) No involuntary servitude in any form shall exist

except as a punishment for a crime whereof the party
shall have been duly convicted.
Paragraph 1 prevents the recurrence of what happened during

the dark ages where members of the opposition were put
behind bars by Marcos.
Slavery is outlawed through Sec 18(2) Art III.
42

Consti 2 - Finals

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EH 406 | Constitutional Law II Finals

Atty. Renato Galeon

Exclusionary Rule to Apply

If there is a confession extracted from the arrested person.

Bail is not a matter of right facing a case before the

Extradition cases, is bail a matter of right?

Below reclusion perpetua, bail is a matter of right. Such that if

Rights against self-incrimination Cabal v Capunan

Ordinary witnesses in a criminal case, for the accused DOUBLE JEOPARDY

The case is dismissed without the Illustration of application of double jeopardy:

Example: Gikulata kong Gravador but buhi pa ko. I was

David v Arroyo, G.R. No. 171396, May 3 2006

Chavez v Gonzales G.R. No. 168338

Section 5 Article III of the 1987 Constitution is commonly Engel vs Vitale

As a rule, there should not be a disbursement of public Everson vs Board of Education

Section 18 (1), Article 3

(2) No involuntary servitude in any form shall exist

Paragraph 1 prevents the recurrence of what happened during

Slavery is outlawed through Sec 18(2) Art III.

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