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Bernas Reviewer
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9
The freedom of expression is
not limited to ideas which is
acceptable to the majority, or
to the powers-that-be, for this
freedom is meant to invite
fomenting anddiscussing of
different ideas in the public
arena.Modes of expression :

1) Verbal& Written Language

2) SymbolsElements:1)
Freedom from prior
restraint/censorship

Prohibits the unlawful

curtailment of the of the flow
of ideas

Prohibits censor from

applying it own subjective
standards in determining
whats good or not

There need no be a total

suppression; even the

restriction of circulation is an
unconstitutional restraint2)
Freedom from subsequent
punishment

This freedom is included and

as important like the first, for
it would be absurd that one
can be allowed to express yet
be held liable for such
expression;however, it is
subject to certain limitations
as discussed
below.Limitations of Freedom
of Expression1. Subject to
POLICE POWER and can be
regulated to protect public

interest2. Does not include

ideas offensive to public
order or decency, or
reputation of personsTo be
able to know whether or not
an expression is protected or
not, certain tests have been
developed by the courts:1.
CLEAR & PRESENT DANGER
TEST-liberty over authority

If the words or utterances

used are of such a nature as
to create a clear and present
danger that they will bring
about substantive evils that
the state has theright to

prevent, such utterance is not

protected.

Thus, it is a question of
proximity and degree since
Clear means that there
must be a causal connection
between danger and the
utterance while
Presentrefers to time in
relation to Danger that is
extremely serious and highly
imminent.

This gives way to States

right to self-preservation

Differs from Dangerous

Tendency with regards to
proximity2. DANGEROUS
TENDENCY TEST-authority
over liberty

Also known as Clear and

Probable Danger

If the words or utterances

create a dangerous tendency
that the state has a right to
protect, such utterance is
punishable. It is sufficient if
the naturaltendency and
probable effect of the

utterance is to bring about

the substantive evil that the
legislative body seeks to
prevent.3. BALANCING OF
INTEREST TEST-liberty or
authority

When a specific act or

conduct is regulated in the
interest of public order but
such regulation results in an
indirect, conditional and
partial abridgment
of expression, it is the courts
duty to determine which of
the two conflicting interest it
should protect. It resolves the

issue in light of the

peculiar circumstances of the
case. It has an inherent
weakness in that it allows the
courts freedom to choose
which interest to
protect.Criticism of Official
Conduct

People have the right to

criticize or commend the
conduct of elected officials
since the public servants
acts are legitimate subjects
of public discussion. Aslong
as the comments are made in
good faith and with justifiable

ends (ex. better public

service), such comments are
protected. This rule is
applicable to both public
officers and public figures
(ex. Joyce Jimenez or Tom
Welling). However, such
criticism must always be in
respectful language.

10
Art & Obscenity

Obscenity is not
constitutionally protected,
but the problem is, what the
hell obscenity means. There

have been various tests

enunciated in the cases
infreedom of the press of this
compilation.
ASSEMBLY & PETITION
FOR REDRESS

The right to lawful assembly

is important because there
are certain issues better
resolved after exchanging
views in a meeting for that
purpose. Such publicmeeting
is effective in airing ideas or
concerns affecting the public.

This right is not subject to

prior restraint (ex. the need
for a permit) unless the
meeting takes place in a
public area (ex. Rizal
Park).Tests for a lawful
assembly:1. Lawful purpose2.
The group/association holding
the meeting is not illegal
(ex.ElShaddai)An untoward
incident (ex. riot) in a lawful
assembly does not make the
assembly unlawful, only
unruly. However, the lawenforcers can intervene in
suchincidents in name of
public safety.

5. FREEDOM OF &
FREEDOM FROM
RELIGION
Section 5. No law shall be
made respecting an
establishment of religion, or
prohibiting the free exercise
thereof. The free exercise
and enjoyment of religious
profession and worship,
without discrimination or
preference, shall forever be
allowed. No religious test
shall be required for the
exercise of civil or political
rights.

2 Aspects:1)
Freedom to Believe (or
Disbelieve)- However absurd
ones belief is, even if it is
deemed by society as
heretical or hostile it cannot
be punished as long as
itremains in the realm of
thought.2)
Freedom to Act on Ones
Belief As soon as one
externalizes his belief, his/her
freedom becomes the subject
of States inherent police
power if it theexercise of

police power is inimical or

beneficial to society (ex.
Prevention of a cults mass
suicide)

6. LIBERTY OF
ABODE AND
TRAVEL
Section 6. The liberty of
abode and of changing the
same within the limits
prescribed by law shall
not be impaired except upon
lawful order of the
court. Neither shall the right
to travel be impaired except
in the interest of national

security, public safety, or

public health, as may be
provided by law.
The purpose of this right is to
further emphasize individual
liberty as safeguarded in the
general terms of the due
process clause. This right
includes the rightto choose
ones residence, leave it
whenever he/she pleases ,
and travel where he
wants.This right, as in all
rights have limitations; This is
limited by a lawful order of
the court and can be

impaired in the interest of

public safety, security, health
asprovided by law.
Obiter: The Marcos v.
Manglapus Case is unique &
is not a precedent for
normalcases, kung baga
pan-diktador lang.

7. ACCESS TO
PUBLIC
INFORMATION
Section 7. The right of the
people to information on
matters of public concern
shall be recognized. Access
to official records, and

to documents, and papers

pertaining to official acts,
transactions, or decisions, as
well as to government
research data used as basis
for policy development, shall
be afforded thecitizen,
subject to such limitations as
may be provided by law.

11
Access to public info is
essential in the exercise of
freedom of expression, for
every citizen has a right to
know what is happening in

his/her country and

his/her govt so that he/she
can express her views
intelligently. It can be limited
if the info being sought would
endanger national interest or
security (ex. The plan
of attack against Abu
Sayyaf)As enunciated in the
Tanda v. Tuvera case,
a law will only be effective
upon publication in the
Official Gazette, or
alternatively in 2 newspapers
of generalcirculation.

8. FREEDOM OF
ASSOCIATION

Section 8. The right of the

people, including those
employed in the public and
private sectors, to form
unions, associations, or
societies for purposes
not contrary to law shall not
be abridged.
RIGHT TO ASSOCIATION

It is deemed embraced in the

freedom of expression
because a lawful association
or organization can be used
as a vehicle to express views
that affect the public, which
can be more effectively

disseminated by an
organization.

Art. 3 Sec 8 guarantees

private and public employees
the right to form unions so
long as it is lawful. However
in the SSS vs. SSSEA, govt
employeeswere not allowed
to strike.

9. EMINENT
DOMAIN
Section 9. Private property
shall not be taken for public
use
without just compensation.

Also known as the power of

expropriation (that is govt
buying private property to
be used publicly), it is
primarily lodged in the
national legislature. But
can be validly delegated and
exercised to other govt
entities (President, local
legislative bodies, certain
public corporations, like
NAPOCOR) even
privatecompanies serving
essential public needs or
operates public utilities (PLDT
or Bayantel)Eminent Domain
is different from destruction

from necessity in that the

latter: 1) property may be
taken by private individuals;
2) no need to convert
taken property to public use;
3) there is no requirement for
just compensationQuestions
of necessity or wisdom of the
exercise of the power of
expropriation are essentially
political and not usually
subject to judicial review. But
whenthese questions are
decided by a delegate of the
national legislature (ex. Local
city council), the Supreme
Court has assumed the power

to inquire into it, whether the

delegated authority has been
correctly or properly
exercised, by looking into the
wisdom or necessity of the
expropriation.All real and
personal, tangible and
intangible properties can be
subject to expropriation
except money and choses in
action (Choses in actionpersonal rightnot reduced
into possession but
recoverable by a suit at law
ex. Right to demand &
recover a debt). Property
already devoted to public use

is still subject
toexpropriation, as long as it
is done by Congress or under
a specific grant of authority
to the delegate. It should be
observed that the to-be
expropriated propertymust be
by its nature and condition
wholesome, as it is intended
for public use. This differs
from property taken under
police power, because the
propertydestroyed, or sought
to be destroyed is noxious to
the general welfare.Just
compensation-a full and fair
equivalent of the property

taken from the private owner

by the expropriator. The
property taken is assessed as
to the time of the taking ,
which usually coincides with
the commencement of the
expropriation proceedings.
Only the judiciary has the
right to ascertain whether or
not thecompenastion was just
(see EPZA vs. Dulay)

12

10. CONTRACTS
CLAUSE
X. Contracts Clause
Section 10.

No law impairing the

obligation of contracts shall
be passed.
The purpose of the
impairment clause is to
safeguard the integrity of
valid contractual agreements
against unwarranted
interference by the State.
Thedegree of dimunition is
immaterial. As long as the
original rights of either
parties are changed to
his/her prejudice, there is an
impairment of the obligation
of thecontract. This clause,
however, is not absolute. If

the law is a proper exercise of

police power, a contract valid
at the time of its execution
can be completelyinvalidated
or modified.

11. EXPOST FACTO

LEGISLATION
Section 22. No ex post facto
law or bill of attainder shall
be enacted.
EX POSTO FACT LAWoperates retroactively to
affect antecedent
facts.Characteristics: 1)
Refers to Criminal matters; 2)
Retroactive application;3)
Prejudicial to Accused.BILL OF

ATTAINDER-legislative act
inflicting punishment without
trial. A statue that applies
either to named individuals or
easily ascertainablemembers
of a group in such a way as to
inflict punishment without
trial

12. NONIMPRISONMENT
FOR DEBT
Section 20. No person shall
be imprisoned for debt
or non-payment of a poll tax.

Although a debtor cannot be

imprisoned for the failure to
pay his debt, he can still be
punished in a criminal case if
he contracted his debt
through fraud.In suc case, the
act he is being penalized is
the fraud employed to secure
the debt not in the default of
payment.

13. INVOLUNTARY
SERVITUDE
Section 18. (2) No
involuntary servitude in any
from shall exist except
as punishment for a crime

whereof the party shall

be duly convicted.
The concept includes slavery
(absolute power of one over
the other in their civil
relation) and peonage
(condition of enforced
servitude in which one
iscompelled to labor in
liquidation of some debt
against his will.).Exceptions:
1) Punishment for a crime
where one is duly
convicted;2) Compulsory
Military Training

14. WRIT OF
HABEAS CORPUS

Section 15. The privilege of

the writ of habeas corpus
shall not be suspended
except in cases of invasion
or rebellion when the public
safety requires it.

13
It is the prerogative writ of
liberty employed to test the
validity of a persons
detention. The petition for
habeas corpus must be acted
upon immediately. It isthe
privilege itself, and not the
writ, which may be
suspended.It is available

when he is subject to: 1)

physical or moral restraint; 2)
sentenced to a longer penalty
than that is subsequently
meted out to another for the
sameoffense; 3) questions
courts jurisdiction; 4)
unlawful denial of
bail.Procedure: As soon as
application is filed and the
court finds it in the proper
form, the issuance of the writ
follows. It is only when the
person in custody is being
held for a crime mentioned in
the proclamation suspending
the privilege of the writ and

in a place where it is effective

such petition is denied. In
theabsence of invasion or
rebellion, when public safety
requires it, privilege of the
writ cannot be
suspended.The President has
the power to suspend the
privilege of the writ and the
SC has the power to annul
such suspension if not based
on the 2 grounds (Art7,
Sec.18).

15. RIGHTS OF
THE ACCUSED
Sec. 11 Free access to the
courts and quasi-judicial

bodies and adequate legal

assistance shall not be
denied to any person by
reason of poverty.Sec. 12
(1) Any person under
investigation for the
commission of an offense
shall have the right to be
informed of his right to
remain silent and to
havecompetent and
independent counsel
preferably of his own choice.
If the person cannot afford
the services of counsel, he
must be provided with one.
These rightscannot be

waived except in writing and

in the presence of counsel.
(2) No torture, force,
violence, threat,
intimidation, or any other
means which vitiate the free
will shall be used against
him. Secret detention
places, solitary,
incommunicado, or other
similar forms of
detention are prohibited.(3)
Any confession or admission
obtained in violation of this
or Sec. 17 hereof shall be
inadmissible in
evidence against him.(4) The

law shall provide for penal

and civil sanctions for
violations of this section as
well as compensation to and
rehabilitation of victims
of torture or similar
practices, and their
families.Section 14. (1) No p
erson shall be held to answer
for a criminal offense without
due process of law. In all
criminal prosecutions, the
accused shall be presumed
innocent until the contrary is
proved, and shall enjoy the
right to be heard by himself
and counsel, to be informed

of the nature and cause of

the accusation against him,
to have a speedy, impartial,
and public trial, to meet the
witnesses face to face,and to
have compulsory process to
secure the attendance of
witnesses and the
production of evidence in his
behalf. However, after
arraignment, trial
may proceed
notwithstanding the absence
of the accused provided that
he has been duly notified
and his failure to appear is
unjustifiableSec. 16 All

persons shall have the right

to a speedy disposition of
their cases before all judicial,
quasi-judicial
or administrative bodies.
A. COLD NEUTRALITY
Accused must be tried in an
impartial and competent
court in accordance with the
rules on criminal procedure;
His/her constitutional rights
must be observedat all
applicable times. The basic
ingredient is that the trial be
conducted in accordance with
the rudiments of fair play.

B. AGAINST SELFINCRIMINATION
Section 17. No person shall
be compelled to be a witness
against himself.
2 Fold Purpose:

14
1)
Humanitarian to prevent
the State, using its coercive
power, from extracting from
the suspect testimony which
would furnish the missing
evidencenecessary for his
conviction.2)

Practical-Suspect would
usually be under the
compulsion to commit perjury
to protect himself.This rule is
mandatory and applicable in
all other government
proceedings. It can also be
claimed by any witness to
whom an incriminating
question isaddressed. If it is
the accused himself/herself,
s/he can refuse at the outset
to take the stand as a
prosecution witness, on the
reasonable presumption
thatinterrogations purpose is

to incriminate him.The right

is limited to a prohibition
against compulsory
testimonial
self-incrimination, and thus
excludes urine, hair and
blood samples, even
ocular inspection of the
suspects body on the proviso
that force and torture was not
used.This right can be validly
waived if the waiver is
certain, unequivocal and
made by the accused
willingly, intelligently and
understood the
consequences of his action.

C. RIGHT TO COUNSEL
The right to competent and
independent counsel,
prefereably choice of accused
can be waived so long as it is
written and upon counsels
presence andadvice of the
consequences of his action.
Such right attaches upon the
start of the investigation,
when officer asks questions
that elicit information,
confession or admissions of
the accused thus has begun
to focus on a particular
suspect.(

please read RA 7438 and

the 2001
Rules on Criminal
Procedure)
D. RIGHT TO BE INFORMED
OF ACCUSATION
This necessarily includes the
prohibition of changing crime
charged in the information
without court approval. The
information filed must
necessarilyinclude the
specific crime committed and
the acts/evidences which
tends to show the ones guilt.
E. RIGHT TO BAIL

Section 13. All persons,

except those charged with
offenses punishable by
reclusion perpetua when
evidence of guilt is strong,
shall, before
conviction, bebailable by
sufficient sureties, or be
released on recognizance as
may be provided by law. The
right to bail shall not be
impaired even when the
privilege of thewrit of habeas
corpus is suspended.
Excessive bail shall not be
required.

It cannot be impaired even

with the suspension of the
privilege of the writ.
F. CRUEL PUNISHMENTS
Section 19. (1) Excessive
fines shall not be imposed, n
or cruel, degrading or inhum
an punishment inflicted. Neit
her shall death penalty be im
posed,unless, for compelling
reasons involving heinous
crimes, the Congress
hereafter provides for it. Any
death penalty already
imposed shall be reduced to
reclusion perpetua.The
employment of physical,

psychological, or degrading
punishment against any
prisoner or detainee or the
use of substandard or
inadequate penal facilities
under subhuman conditions
shall be dealt with by law.
Mere fines and imprisonment
are not violative unless the
penalty is barbarous or
shocking to the senses or
conscience and such cruelty
is inherent in the penalty. But
where an unforeseeable
event adds to convicts
suffering, penalty is still
valid .

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