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CHAPTER 13: FREEDOM OF EXPRESSION

At once the instrument and the guaranty and the bright


consummate flower of all liberty Wendell Philips.

Interpretation: Freedom of Expression is granted a


predominant status in the hierarchy of individual rights. It is
founded on the belief that the final end of the state was to make
men free to develop their faculties and that freedom to think as
you will and to speak as you think are means indispensable to the
discovery and spread of political truth. Its purpose is to preserve
an uninhibited marketplace of ideas where truth will ultimately
prevail.

Freedom of Expression is available only insofar as it is exercised


for the discussion of matters affecting the public interest (private
matters do not come within the guaranty).

I. IMPORTANCE

Assertion of Freedom of Expression is a manifestation of the


peoples exercise of sovereignty (sovereignty resides in the
people).

Justice Holmes in Abrams vs US The ultimate good desired


is better reached by a free tradethat the best test of truth is the
power of the thought to get itself accepted in the competition of
the market; and that truth is the only ground upon which their
wishes safely can be carried out.

Supreme Court in Diocese of Bacolod vs COMELEC


Theories and School of thought (Freedom of Expression)

1. Deliberative Democracy includes the right of the people


to participate in public affairs, including the right to
criticize government actions.
2. Market Place of Ideas free speech should be encouraged
3. Self-Expression a means of assuring individual self-
fulfillment; enhances human dignity.
4. Marker for Group Identity
5. Bill Of Rights protect individuals and minorities against
majoritarian abuses
6. Safety Valve Theory nonviolent manifestations of dissent
reduce the likelihood of violence.

Free Expression and Political Participation people can


vote for candidates who share their views, petition their
legislators to make or change laws, and distribute literature
alerting other citizens of their concerns and conduct peaceful
rallies and other similar acts.

TWO PARADIGMS OF FREE SPEECH

1. Equality-Based Approach politically disadvantaged


speech prevails over regulation, but regulation promoting
political equality prevails over speech.

Purpose: to redistribute or equalize the speaking power


within societys ideological ladder where the majoritarian
may drown out the message of others.

2. Equality of Opportunity members of the public are


trusted to make their own individual evaluations of speech,
and government is forbidden to intervene for paternalistic or
redistributive reasons. Ideas are best left to a freely
competitive ideological market.

Purpose: Evaluate the constitutional validity or invalidity of


speech.

II. SCOPE

The scope is not only confined to those that are sympathetic or


acceptable to the majority. Freedom of speech permits the
articulation of even the unorthodox (unconventional) view, though
it be hostile to or derided by others, or induces a condition of
unrest, creates dissatisfaction with conditions as they are, or even
stirs people to anger. One function of this freedom is to invite
dispute.

The freedom to speak includes the right to be silent. The right


to listen includes the right not to listen. (Freedom of Expression is
still a regulated freedom)

III. MODES OF EXPRESSION

1. Oral
2. Written
3. Symbolism

Form of expression is just as important as the information


conveyed that it forms part of the expression.

IV. ELEMENTS

Article III, Sec. 4, No law shall be passed abridging the freedom


of speech, of expression, or of the press, or the right of the
people peaceably to assemble and petition the Government for
redress of grievances

Sec. 18 (1), No person shall be detained solely by reason of his


political beliefs and aspirations.

ELEMENTS OF FREEDOM OF EXPRESSION

1. Freedom from previous restraint or censorship


2. Freedom from subsequent punishment

TYPES OF FREEDOM RESTRAINTS


1. Content-based restriction is based on subject matter of
the utterance or speech. It is aimed at the contents or
idea of the expression. It is based on the viewpoint of the
speaker or the subject of the expression. It bears a heavy
presumption of invalidity and is measured against the
clear and present danger rule. It is given the strictest
scrutiny, in that, the evil consequences sought to be
prevented must be substantive, extremely serious and the
degree of imminence extremely high.

2. Content Neutral concerned with the incidents of the


speech, or one that merely controls the time, place or
manner, and under well-defined standards. (example: A
person is told when and where he may speak). Has to be
justified by a compelling reason. It only requires a
substantial governmental interest for validity. This is
subjected to intermediate approach of judicial scrutiny,
where the court will not merely rubber-stamp the validity
of a law but also require that the restrictions be narrowly-
tailored to promote an important or significant
governmental interest that is unrelated to the suppression
of expression.

Overbreadth Doctrine a proper governmental purpose,


constitutionally subject to state regulation, may not be
achieved by means that unnecessarily sweep its subject
broadly, thereby invading the area protected freedoms.
When a penal statute encroaches upon the freedom of
speech, a facial challenge grounded on the void-for-
vagueness doctrine is acceptable.

A. FREEDOM FROM CENSORSHIP

Conditions the exercise of freedom of expression upon the


prior approval of the government. Only those ideas
acceptable to it are allowed to be disseminated; all others
are restricted or suppressed.

B. FREEDOM FROM PUNISHMENT

Includes freedom after the speech.


Qualified Privilege Communication
Freedom of Expression is regulated, thus, any unprotected
speech which would be libelous in nature and shall give rise
to false, malicious and prejudicial to the best interest of a
person will be dealt with.

Criteria for Determining Liability of Individual Ideas (TESTS)


1. The clear and present danger rule
2. The dangerous tendency doctrine
3. The balancing test

a. PRESENT DANGER RULE


A question of proximity and degree.
If the words used in such circumstances create a
clear (causal connection) and present (time
element) danger that bring about the substantive
evils, the state will have a right to prevent it.
The danger created must not only be clear and
present but also traceable to the ideas expressed;
not only be probable but also very likely inevitable.
Substantive evil must be extremely serious and
the degree of imminence extremely high before
utterances can be punished.
Hecklers Veto refers to a restriction imposed
by the government upon a persons exercise of his
freedom of speech for purposes of maintaining the
peace or preventing unlawful or violent reactions
to the same (Feiner v New York). Example: Trouble
which erupted was caused by some members of
the speakers audience, and not by the speaker.
Here, the speaker, not the people, was adjudged
guilty for a genuine attempt to arouse the Negro
People against the whites (preservation of order
and protection of general welfare was the main
concern).
Violent Picketing (protest) would create a clear and
present danger to the safety of persons and the
public order and is therefore not entitled to the
protection of the constitution. (This case is an
exception where Hecklers Veto does not apply.)

b. THE DANGEROUS TENDENCY DOCTRINE


It is sufficient that acts be advocated in general
terms (not necessary that some definite or
immediate acts of force, violence or unlawfulness
be advocated). It is also sufficient that the natural
tendency and probable effect of the utterance be
to bring about the substantive evil which the
legislative body seeks to prevent.
Under this test the person could be punished for
his ideas even if they only tended to create the
evil sought to be prevented. A mere tendency
towards the evil is enough (example: Instigation,
incitement and uttering seditious words against
the government).

c. THE BALANCE-OF-INTEREST TEST


When particular conduct is regulated in the
interest of public order, and the regulation results
in an indirect, conditional, partial abridgment of
speech, the duty of the courts is to determine
which of the two conflicting interests demands the
greater protection under the particular
circumstances presented (example: Regulating
the exercise of freedom of expression to protect
national security)
Authority is preferred in the Dangerous Tendency
Doctrine
Liberty is preferred under the Clear and Present
Danger Rule
Resolution is preferred under the Balancing Test.
It focuses on resolving the issue in the light of the
peculiar circumstances obtaining in each particular
case.

V. CRITICISM OF OFFICIAL CONDUCT

People have the complete liberty to scrutinize and


commend or condemn the conduct of their chosen
representatives in the government as long as their
comments are made in good faith and with justifiable
ends. This liberty however is regulated and can only go
insofar as it does not affect private rights of an individual.

Contumacious speech and conduct directed against the


courts done by any person, whether or not a member of
the bar, may be considered as indirect contempt under
Rule 71, Sec 3 of the Rules of Court.

The power to punish contempt is inherent in all courts


as it is indispensable to their right of self-preservation, to
the execution of their powers, and to the maintenance of
their authority; and consequently to the due
administration of justice.

TWO KINDS OF PUBLICATION THAT WARRANT THE


EXERCISE OF THE POWER TO PUNISH CONTEMPT

1. That which tends to impede , obstruct, embarrass or


influence the courts in administering justice in a pending suit
or proceeding;
2. That which tends to degrade the courts and to destroy public
confidence in them or that which tends to bring them in any
way into disrepute.

VI. ARTS AND OBSCENITY

TEST OF OBSCENITY

1. Whether the average person, applying contemporary


community standards, would find that the work, taken as
a whole, appeals to the prurient (lustful) interest.
2. Whether the work depicts or describes, in a patently
offensive way, sexual conduct specifically defined by the
applicable law.
3. Whether the work, taken as a whole, lacks serious literary,
artistic, political or scientific value.

Courts should not apply a national standard test of decency,


rather, the courts should apply the standards of the
community in which the material is being tested.

VII. ASSEMBLY AND PETITION

The public meeting is an effective forum for the ventilation


of ideas affecting the common welfare.

The right to assemble is not subject to previous restraint or


censorship. If the assembly is intended to be held in a public
place, a permit for the use of such place, and not for the
assembly itself, may be validly required. However, if the
assembly is to be conducted in a private place, a permit is
no longer necessary.

TESTS
The test of a lawful assembly should be the purpose for
which it is held, regardless of the auspices under which it is
organized. If the purpose of assembly is against public
welfare and safety, it has to be restricted and the acts are
punished.

RIGHT TO ASSOCIATION

Article III, Sec. 8 The right of the people, including those


employed in the public and private sectors, to form unions,
associations or societies for purposes not contrary to law
shall not be abridged.

The right is already comprehended in due process, as it


protects the persons liberty.
This right is embraced under Freedom of Expression because
the organization can be used as a vehicle for the expression
of views that have a bearing on the public welfare.
Self-preservation is the ultimate value of society. It surpasses
and transcends every other value for if society cannot
protect its very structure from armed internal attack, no
subordinate value can be protected.

ACCESS TO INFORMATION

A Self-Executory constitutional right.


Promotes transparency in policy-making and in the
operations of the government, as well as provide the people
sufficient information to exercise effectively other
constitutional rights.
Article III, Sec. 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 decision, as well as to
government research data used as basis for policy
development, shall be afforded the citizen subject to such
limitations as may be provided by law.
Article VI, Sec. 20 the records and books of accounts of the
Congress shall be open to the public in accordance with law,
and such books shall be audited by the Commission on Audit
which shall publish annually an itemized list of amounts paid
and expenses incurred for each member.
Note: If it is deemed unlawful and violative, the right to
access to information is restricted.

CHAPTER 14: THE IMPAIRMENT CLAUSE

No law impairing the obligation of contracts shall be


passed

Purpose: To safeguard the integrity of valid contractual


agreements against unwarranted interference by the State. As a
rule, they should be respected by the legislature and not
tampered with by subsequent laws that will change the intention
of the parties or modify their rights and obligations.

Note: The protection of the impairment clause is not absolute.

CONTRACT

A contract refers to any lawful agreement on property or property


rights, whether real or personal, tangible or intangible. The
agreement may be executed or executory. The parties may be
private persons only, natural or artificial, or private persons on
the one hand and the government or its agencies on the other
hand.
Franchises or charters can be considered contracts in that they
are granted to private persons or entities, like an authorization to
operate a public utility.

In our jurisdiction, a franchise has been held as partaking (part of)


of the nature of grant and is beyond the purview (scope) of the
non-impairment clause of the constitution.

Licenses are not considered contracts because they involve


grants of privileges only that are essentially revocable.

Marriage Contracts are not also included since they are


regarded as a social institution subject at all times to regulation
by the legislature and to change of the original conditions.
(Example: allowing divorce to marriages solemnized under a law
which previously prohibits their dissolution)

A public Office is not a property right and therefore cannot be


subject of a contract between the incumbent and the government
since a public office can be modified or abolished.

LAW

As used in the impairment clause, law, includes statutes enacted


by the national legislature, executive orders and administrative
regulations promulgated under a valid delegation of power, and
municipal ordinances passed by the local legislative bodies.

It does not include judicial decisions, or adjudications made by


administrative bodies in the exercise of their quasi-judicial
powers.

To impair, the law must retroact so as to affect existing contracts


concluded before its enactment. If it operates prospectively, then,
there is no impairment.
OBLIGATION

The Obligation of the contract is the vinculum juris. It is the tie


that binds the parties to each other. The Obligation of a contract
is the law or duty which binds the parties to perform their
undertaking or agreement according to its terms and intent.

IMPAIRMENT

Impairment is anything that diminishes the efficacy of the


contract.

As long as the original rights of either of the parties are changed


to his prejudice, there is an impairment of the obligation of the
contract.

In the case of remedies, there will be impairment only if all of


them are withdrawn with the result that either of the parties will
be unable to enforce his rights under the original agreement. If
the substantial and efficacious remedy remains, there is no
impairment.

LIMITATIONS

Despite the impairment clause, a contract valid at the time of its


execution may be legally modified or even completely invalidated
by a subsequent law. If the law is a proper exercise of the police
power, it will prevail over the contract.
The police power is superior to the non-impairment clause, The
constitutional guaranty of non-impairment of contracts is limited
by the exercise of the police power of the State, in the interest of
public health, safety, morals, and general welfare of the
community.

Like Police Power, the other inherent powers of eminent domain


and taxation may validly limit the impairment clause.
Where a law grants a tax exemption in exchange for valuable
consideration, such exemption is considered a contract and
cannot be repealed because of the impairment clause.

Lawful tax does not interfere with a contract or impair its


obligation within the meaning of the Constitution.

CHAPTER 15: EX POST FACTO LAWS

No ex post facto law or bill of attainder shall be enacted

The equivalent of the impairment clause in the criminal


matters is the prohibition against the passage of the ex post facto
law. The reason is that, ex post facto law operates retroactively to
affect antecedent acts.

An ex post facto law is the one that would make a previous


act criminal although it was not so at the time it was committed.

KINDS

1. Every law that makes criminal an act done before the


passage of the law and which was innocent when done, and
punishes such an act.
2. Every law that aggravates a crime or makes it greater than it
was when committed.
3. Every law that changes punishment, and inflicts greater
punishment than the law annexed to the crime when
committed.
4. Every law that alters the legal rules of evidence, and
receives less or different testimony than the law required at
the time of the commission of the offense, in order to convict
the offender.
5. Every law which, assuming to regulate civil rights and
remedies only, in effect imposes a penalty or the deprivation
of a right for something which when done was lawful.
6. Every law which deprives persons accused of crime of some
lawful protection to which they have become entitled, such
as the protection of a former conviction or acquittal or a
proclamation of amnesty.

CHARACTERISTICS

1. Refer to criminal matters


2. Be retroactive in its application; (3) to the prejudice of the
accused

Administrative Orders and Memorandum Orders have also


been held as not being covered by the proscription against
ex-post facto laws.
A law can never be considered ex-post facto as long as it
operates prospectively since it strictures would cover only
offenses committed after and note before its enactment.
It has been consistently held that remedial laws may be
given retroactive effect, and may be made to apply to
actions pending and undetermined at the time of their
passage, there being no vested rights in the rules of
procedure. Reason: A remedial statute or a statute relating
to remedies or modes of procedure does not create new
rights or take away vested rights but only operates in
furtherance of the remedy or the confirmation of already
existing rights.
Even if the law be penal and retroactive, it will still not be ex
post facto if it does not operate to the disadvantage of the
accused.

BILL OF ATTAINDER

If a Statute is a bill of attainder, it is also an ex post facto


law.

CHARACTERISTICS
Definition: A Bill of Attainder is a legislative act that inflicts
punishment without trial, its essence being the substitution
of legislative fiat (decree) for a judicial determination of
guilt. Often, such bills are simulated by ambition or
personal resentment, and vindictive malice.
Remember: Test Oaths (in Cummings v. Missouri) have been
held odious in modern ages, for two (2) reasons: One,
because they were inquisitorial: and the other, because they
were used as instruments of prescription and cruelty.

CHAPTER 16: NON-IMPRISONMENT FOR DEBT

No person shall be imprisoned for debt or non-payment of a


poll tax (cedula)

DEBT

Refers to any civil obligation arising from contract, expressed


or implied.
(Ganaway v Quillen), held that debt includes those
obligations obtained through fraud since no distinction is
made in the constitution.
As long as the obligation to pay arises ex contractu (from a
contract), it is considered a private matter between the
creditor and the debtor and the punitive arm of the State
cannot be employed in a criminal action to enforce the
formers right.
Remedy: file a civil case for the recovery of the unpaid debt.

CRIME

A debtor can be validly punished in a criminal action if he


contracted his debt through fraud. He is penalized for the
deception he employed in securing the debt, not his default
in paying it.
POLL TAX

Definition: a specific fixed sum levied upon every person


belonging to a certain class without regard to his property or
occupation. Note: Failure to pay Poll tax is not punishable
with imprisonment.
Note: A TAX is an obligation of a person to contribute his
share in the maintenance of the government. Failure to pay
can be validly punished with imprisonment.

CHAPTER 17: INVOLUNTARY SERVITUDE

This is in connection to RPC 247 as well. Please read the


provision.

Sec. 18 (1) 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.

DEFINITION

Definition: Involuntary Servitude is the condition of one who


is compelled by force, coercion, or imprisonment, and
against his will, to labor for another, whether he is paid or
not.
Slavery defined: A civil relation in which one man has
absolute power over the life, fortune and liberty of another. A
condition of enforced servitude by which the servitor is
restrained of his liberty and compelled to labor in liquidation
of some debt or obligation, real or pretended, against his
will.
EXCEPTION

punishment for a crime whereof the party shall have


been duly convicted.
Article II, Sec 4. All citizens may be required, under
conditions provided by law, to render personal military or
civil service.
Under posse comitatus (body of men, typically armed,
summoned by the sheriff to enforce the law), persons may
be validly pressed into service for the apprehension of
criminals.
In patria protestas: a teenager who wants to go to a disco
cannot invoke the Constitution against her mother, who
insists that she spruce (clean) up her bedroom and the whole
house as well.

APPLICATION

Refer to RPC 247 for the ruling on how the law punishes
those violate the involuntary servitude law.
CHAPTER 18: THE WRIT OF HABEAS CORPUS

DEFINITION:

A prerogative writ of liberty employed to test the validity of a


persons detention.
The writ is directed to the person detaining another,
commanding him to produce the body of the prisoner at a
designated time and place, with the day and cause of his
caption and detention, to do, to submit to, and receive
whatever the court or judge awarding the writ shall consider
in his behalf.
It is issued only for the lone purpose of obtaining relief for
those illegally confined or imprisoned without sufficient legal
basis.
The writ cannot be used to investigate and consider
questions or error that might be raised relating to procedure
or on merits. The inquiry in habeas corpus proceeding is
addressed o the question whether the proceedings and the
assailed order are for any reason null and void.
The only question to be resolved is whether the custodian
has authority to deprive the petitioner of his liberty.
The primary object of the writ of habeas corpus ad
subjuciendum is to determine the legality of the restraint
under which a person is held.
Habeas corpus may also be resorted to in case of unlawful
denial of bail.

WHEN AVAILABLE

Even moral restraint is a ground for the issuance of this writ.


(ex. Si Inday ay hindi hinayaang umalis o mag-resign ni
Maam. Inday! Invoke the writ against Maam!)
Restrictive custody is, nominal restraint which is beyond the
ambit of habeas corpus. Nominal (moral) restraint means
that it is a restraint that serves as a precautionary measure
to assure that the peace officers will be accounted for such
restraint. Normally, cases that concerns with administrative
violation is placed under restrictive custody.

PROCEDURE

It is not the writ itself but only its privilege that may be
suspended.
Procedure: 1.) File application for writ. 2.) If court finds the
petition in proper form, writ is issued.
Note: Once the person subject of the writ will be produced,
respondent, who detained the person shall be required to
justify detention. Furthermore, if the person in custody was
held for a crime covered by the proclamation suspending the
privilege of the writ of the habeas corpus and detained in a
place where such suspension is effective, the court shall
dismiss the petition.
Article III, Sec. 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.

GROUNDS FOR SUSPENSION

Article VII, Sec. 18 (the gist in order)

>In case of invasion or rebellion, when the public safety


requires it, the President may suspend the writ of
Habeas Corpus or place the Philippines or any part
thereof under Martial Law for a period not exceeding 60
days.

>Within 48 hours from such proclamation, the President


shall submit a report in person or in writing to the
Congress.

>The Congress (voting jointly), by a vote of at least


majority of all its members in regular or special session,
may revoke such proclamation or suspension (President
cannot revoke).

>Upon the initiative of the President, the Congress may


extend such proclamation or suspension. Note:
extension is indefinite. The period to be determined by
the Congress if such the requisites persist.

>If not in session, the Congress shall, within 24 hours


following such proclamation or suspension convene in
accordance with its rules without need of a call.

>The Supreme Court may review the sufficiency of the


factual basis of the proclamation (martial law) or the
suspension of the privilege of the writ or the extension
thereof, within 30 days from its filing. Note: This means
that the action of the President and the Congress shall
be subject to review by the Supreme Court.

>The Challenge may be file by any citizen.

>The state of martial law does not suspend the


operation of the Constitution, nor supplant the
functioning of the civil courts or legislative assemblies
nor authorize the conferment of jurisdiction on military
courts and agencies over civilians where civil courts are
able to function, nor automatically suspend the
privilege of the writ.

>Suspension of the privilege of the writ applies only to


persons judicially charged for rebellion or invasion.

>Persons who are thus arrested during the period of


suspension of the privilege of the writ shall be judicially
charged, otherwise, he shall be released.

The Supreme Court has the power to annul suspension of the


privilege of the writ of habeas corpus if the same is not
based on either of the two grounds enumerated in the
constitution to wit: invasion or rebellion, when the public
safety requires it

THE ILAGAN CASE

Atty. Ilagan, Atty. Arellano and Atty. Risonar were arrested by


the Military on the basis of a Mission Order signed by
General Echevarria and issued by the Ministry of National
Defense.
A writ was subsequently filed by IBP, FLAG and MABINI on
behalf of the three Lawyers.
>Grammar Lesson: On behalf is slightly different from in
behalf. The former denotes being an agent of the latter
means for the benefit of something or someone
The respondents contended that the detainees were covered
by a preventive detention action, and that the privilege of
the writ of habeas corpus was suspended as far as the three
lawyers are concerned.
Ruling: The Remedy of habeas corpus no longer lies because
the petition (pertains to the petition filed by the defendants)
has been rendered moot and academic by virtue of the filing
of an information against the three lawyers for rebellion, a
capital offense, before the RTC of Davao City. The
incarceration of the lawyers is now by virtue of a judicial
order in relation to criminal cases.

THE WRITS OF AMPARO AND HABEAS DATA

These are complementary writs.


The Guarantee under the writ of Amparo: The courts will be
more diligent in the protection of the life, liberty and security
of the desaparecido (a person who disappeared) and can
order the respondent to exert more and actual effort in
locating the missing person and showing that he is in good
condition and has not been maltreated by the authorities.
Note: Amparo means Protection
The Definition of the writ of Amparo: The writ of Amparo is a
remedy available to any person whose right to life, liberty
and security is violated or threatened with violation by an
unlawful act or omission of a public official or employee or of
a private individual or entity. Mere substantial evidence is
required.
Note: In view of the recognition of the evidentiary difficulties
attendant to the filing of a petition for the privilege of the
writs of amparo and habeas data, not only direct evidence,
but circumstantial evidence, indica (something that points to
the existence of a given fact), and presumptions may be
considered, so long as they lead to conclusions consistent
with the admissible evidence adduced.
Circumstantial Evidences defined: These are evidences that
are merely based on inference, and thus called, indirect
evidence. Example: Si Inday nakita niya si Dodong og
kurapeka nga nisulod sa kwarto sa ilang amo dayon
nanirado. Si Inday nang-eavesdrop didto sa bongbong sa
kwarto og nadunggan niya nga naglalis ang duha kung kinsa
jud ang dapat mag-Darna si Angel Locsin ba gyud or si Karla
Estrada. Then after sa lalis, nadungog ni Inday nga naay
niboto. Dayon nahilom. Nigawas si Dodong sa kwarto nga
nagbibit og pusil nga naag-aso pa. If this testimony is to be
presented by Inday at the court, the jury has to determine if
the Indays testimony is credible.

ELEMENTS OF AN ENFORCED DISAPPEARANCES (RA


9851)
a.) That there be an arrest, detention, abduction or
any form of deprivation of liberty;
b.) That it be carried out by, or with the authorization,
support or acquiescence of, the State or political
organization; c.) that it be followed by the State or
political organizations refusal to acknowledge or
give information on the fate or whereabouts of the
person subject of the amparo petition;
c.)That the intention for such refusal is to remove
subject person from the protection of the law for a
prolonged period of time.
Mere inclusion of persons name in an Order of Battle List
would not warrant the issuance of a writ of amparo.
By Doctrine of Command Responsibility, the President, as
Commander-in-Chief can be held responsible or accountable
for extrajudicial killings and enforced disappearances in the
context of amparo proceedings, following the requisites
mentioned hereunder:
a.) The existence of a superior-subordinate
relationship between the accused as the superior and
the perpetrator of the crime as his subordinate.
b.) The superior knew or had reason to know that the
crime was about to be or had been committed.
c.)The superior failed to take the necessary and
reasonable measures to prevent the criminal acts or
punish the perpetrators thereof.
The writ of Amparo may not be issued in favor of persons
merely in the custody of the police and allegedly under the
threat of deprivation of liberty, or for the protection of
property or commercial rights
The Writ of Habeas Data Defined: The writ is intended to
insure the human right to privacy by requiring the
respondent to produce the necessary information to locate
the missing person or such data about him that have been
gathered in secret to support the suspicion that he has been
taken into custody in violation of his constitutional rights, or
worse, has been salvaged without benefits of lawful trial.
It requires concrete allegations of unjustified or unlawful
violation of the right to privacy related to the right to life,
liberty or security and should not issue for purposes of
fishing expeditions.

CHAPTER 19: SPEEDY DISPOSITION OF CASES

Justice delayed is justice denied

Sec 16. All persons shall have the right to speedy


disposition of their cases before all judicial, quasi-judicial or
administrative bodies.

Sec. 14 (2) the rule that the accused shall be entitled to a


speedy trial
Art. VIII, Sec. 5 (3) Supreme Court is now expressly permitted
to temporarily assign a judge from one station to another
when the public interest so requires, as when there is
necessity for a less occupied judge to help a busier colleague
in another district.
PERIODS PRESCRIBED FOR THE DECISION OR
RESOLUTION OF CASES:
1.) 24 months Supreme Court
2.) 12 months All lower collegiate courts
3.) 3 months all other lower courts
Even an ombudsman may be compelled by madamus to
resolve both administrative and criminal cases.
RULES IN DETERMINING THE EXISTENCE OF DELAY
1.) Fixed-time Period Rule a delay is considered if proper
resolution of a case is not done within a specified time
period.
2.) Demand-Waiver Rule a defendant is considered to
have waived any consideration of his right to a speedy
trial for any period prior to which he has not demanded
trial. A prior demand is necessary.
3.) Balancing Test for the purpose of determining whether
or not there has been inordinate delay, the conduct of
both the prosecution and defendant are weighed.
Following factors are undertaken:
a.) The length of the delay
b.) The reasons of the delay
c.)The assertion of failure to assert such right by the
accused
d.) The prejudice and cause of the delay

CHAPTER 20: RIGHTS OF THE ACCUSED

CRIMINAL DUE PROCESS

Sec. 4 (1) No person shall be held to answer for a criminal


offense without due process of law.

Covers both substantive and procedural aspects.


SUBSTANTIVE DUE PROCESS (Requisites):
1.) The interest of the public generally as
distinguished from those of a particular class require
the intervention of the State.
2.) The means employed must be reasonable related
to the accomplishment of the purpose and not
unduly oppressive.
PROCEDURAL DUE PROCESS
1.) There must be an impartial court or tribunal clothe
with judicial power to hear and determine the matter
before it
2.) Jurisdiction must be lawfully acquired over the
person of the defendant and over the property which
is the subject matter of the proceeding
3.) The defendant must be given an opportunity to be
heard
4.) Judgment must be rendered upon lawful hearing

Section 14 (1) is restricted to criminal cases only and purely


to their procedural requirements.
It should be noted that the right to a preliminary
investigation is not among the rights granted to the accused
in the Bill of Rights. It is purely statutory.
When an accused pleads to the charge, he is deemed to
have waived the right to preliminary investigation and the
right to question any irregularity that surrounds it.
The basic ingredient of a criminal due process is a trial
conducted in accordance with the rudiments of fair play.
A mistrial may be declared if it is shown that the proceedings
were held under such circumstances as would prevent the
accused from freely making his defense or the judge from
freely arriving at his decision.
Due process is also denied where a person is impleaded for
violation of a law, administrative regulation or municipal
ordinance not previously published as he would not know
what acts he must do or avoid to prevent prosecution.
Under Executive order No. 200, issued on June 18, 1987,
publication may now be made in a newspaper of general
circulation in the Philippines with the same efficacy as the
publication in the Official Gazette.

SELF-INCRIMINATION

Sec. 17. No person shall be compelled to be a witness


against himself

This rooted in common law based on Humanitarian and


practical considerations.
Humanitarian Consideration: it is intended to prevent the
State, with all its coercive powers, from extracting from the
suspect testimony that may convict him.
Practical Considerations: a person subjected to such
compulsion is likely to perjure (give false testimony) himself
for his own protection.
Can be claimed by both the accused and the witnesses.

SCOPE

As long as the question will tend to incriminate, the witness


is entitled to the privilege.
The right may not be invoked where the question asked
relates to a past criminality for which the witness can no
longer be prosecuted as where the crime has already
prescribed or he has already been acquitted or convicted
thereof.
The kernel (the most important part) of the right, it has been
held, is against not all compulsion but testimonial
compulsion (giving evidence against himself through
testimonial act) only.
In Holt vs United States it held: The prohibition of
compelling a man in a criminal court to be a witness against
himself is a prohibition of the use of physical or moral
compulsion to extort communications from him, not an
exclusion of his body as evidence when it may be material.
The prohibition applies to the compulsion for the production
of documents, papers, and chattels that may be used as
evidence against the witness, except where the State has a
right to inspect the same, such as the books of accounts of
corporations, under the police power.
The prohibition also protects the accused against any
attempt to compel him to furnish a specimen of his
handwriting in connection with his prosecution for
falsification (Beltran vs Samson).

WHEN AVAILABLE

The privilege against self-incrimination may be invoked only


when and as the incriminating question is asked.

WAIVER

The right against self-incrimination may be waived, either


directly or by a failure to invoke it, provided the waiver is
certain and unequivocal and intelligently, understandingly
and willingly made.
Examples: one under subpoena voluntarily surrenders;
accused who takes the witness stand (here the accused may
be open for cross-examination); a person who failed to
invoke his right at the appropriate time.

CUSTODIAL INVESTIGATION

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 have a competent and
independent counsel preferably of his own choice. If the person
cannot afford the services of counsel, he must be provided with
one. These rights cannot be waived except in writing and in the
presence of counsel.

(2) No torture, force, violence, threat, intimidation, or any


other means which vitiate the free will shall be used against him.
Secret detention places, solitary, incommunicado, or other similar
forms of detention are prohibited.
(3) Any confession or admission obtained in violation of this
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.

Custodial investigation means questioning initiated by law


enforcement officers after a person has been taken into
custody or otherwise deprived of his freedom of action in any
significant way.
A custodial investigation begins when there is no longer a
general inquiry into an unsolved crime and the investigation
has started to focus on a particular person as a suspect.
Note: Statements that are spontaneously and voluntarily
made by the accused (as such when he goes to the police
and voluntarily made statements that were used against
him) are not covered by Right to self-incrimination.
Evidentiary value of an inventory receipt signed by the
accused upon his arrest without the assistance of counsel
would be irrelevant.
Note: All kinds of evidence presented so long as the accused
or the counsel gave their consent that such evidence exist or
can be presented, otherwise, the evidences are treated
invalid or inadmissible.
RA 7438, Custodial Investigation shall include the practice of
issuing an invitation to a person who is investigated in
connection with an offense he is suspected to have
committed, without prejudice to the liability of the inviting
officer for any violation of the law.
HOW EXTRAJUDICIAL CONFESSION BE ADMISSIBLE? IT
MUST BE:
1.) Voluntary
2.) With assistance of counsel
3.) In writing
4.) Express

BAIL

Sec. 13. All persons except those charged with offenses


punishable by reclusion perpetua when evidence of guilt is
strong shall before conviction, be bailable by sufficient
sureties, or be released on recognizance as may be provided
by law. The right to bail shall not be impaired even when the
privilege of the writ of habeas corpus is suspended.
Excessive bail shall not be required.
Definition: Bail is the security given for the release of a
person in custody of the law, furnished by him or a
bondsman, conditioned upon his appearance before any
court as may be required.
Rule 114: Any person in custody who is not yet charged in
court may apply for bail with any court in the province, city
or municipality where he is held.
There are times that an accused is still entitled to bail even if
the crime imputed to him is punishable by reclusion
perpetua, provided that the evidence of guilt is not strong.
The prosecution has to prove this.
DUTIES OF THE JUDGE ONCE BAIL IS FILED:
1.) In all cases whether bail is a matter of right or
discretion, notify the prosecutor of the hearing of the
application for bail or require him to submit his
recommendation
2.) Where bail is a matter of discretion, conduct of
hearing of the application for bail regardless of
whether or not the prosecution refuses to present
evidence to show that the guilt of the accused is
strong for the purpose of enabling the court to
exercise its sound discretion
3.) Decide whether the guilt of the accused is strong
based on the summary of evidence of the
prosecution
4.) If the guilt of the accused is not strong, discharge
the accused upon the approval of the bail bond,
otherwise, the petition should be denied.
Mere probability of escape does not warrant denial of the
right to bail; the remedy is to increase the bail, provided it is
not excessive.

PRESUMPTION OF INNOCENCE

Sec. 14 (a) in all criminal prosecutions, the accused shall be


presumed innocent until the contrary is proven.
Accusation is not synonymous with guilt.
Where there is reasonable doubt, the accused must be
acquitted even though their innocence may not have been
established.
The constitution presumes a person innocent until proven
guilty by proof beyond reasonable doubt.
In case of conflict between the presumption of regularity of
police officers and the presumption of innocence of the
accused, the latter must prevail, as the law imposes upon
the prosecution the highest degree of proof of evidence to
sustain conviction.
Presumption of innocence is the highest in the hierarchy of
presumptions.
In a criminal case, the presumption of innocence can be
overcome by the presumption of regularity when the latter is
accompanied by strong evidence supporting the guilt of the
accused.
On the right to be silent: no inference of guilt may be drawn
against an accused for his failure to make a statement of any
sort.

RIGHT TO BE HEARD

and shall enjoy the right to be heard by himself and


counsel (Sec. 14 (2))
Includes the right to present evidence in ones defense, as
well as the right to present and defend oneself in person at
every stage of the proceedings.

1.) Assistance to Counsel


The right to counsel begins from the time a person is
taken into custody and placed under investigation for
the commission of the crime. This has never been
considered subject to waiver.
A counsel de oficio, shall be appointed by the court if
the accused cannot afford a counsel of his own choice.
Note: Counsel de parte is the lawyer retained by a party
litigant.

NATURE AND CUASE OF ACCUSATION

to be informed of the nature and cause of the accusation


against him

The defendant is entitled to know the nature and cause if the


accusations against him so he can adequately prepare for his
defense.
Accused cannot be convicted of an offense that is not clearly
charged in the complaint or information. Reason: For doing
so will be violative of the constitutional right to be informed
of the nature and cause of the accusation.
THE CONSTITTUTIONAL GUARANTY OF THE NATURE
AND CAUSE OF ACCUSATION:
1.) To furnish the accused with such a description of the
charge against him as will enable him to make his defense
2.) To avail himself of his conviction or acquittal for
protection against further prosecution for the same cause
3.) To inform the court of the facts alleged, so that it may
decide whether they are sufficient in law to support a
conviction.

Arraignment the acts or omissions complained of as


constituting the offense must be stated in ordinary and
concise language without repetition, not necessarily in the
terms of the statute defining the offense, but in such form as
is sufficient to enable a person of common understanding to
know what offense is intended to be charged and enable the
court to pronounce proper judgment. This is a constitutional
right of the accused to be informed.
TEST OF SUFFICIENCY OF THE COMPLAINT OR
INFORMATION:
1.) If it states the name of the accused
2.) If it states the designation of the offense given by the
statute
3.) If it states the acts or omissions complained of as
constituting the offense
4.) If it states the name of the offended party
5.) If it states the approximate date of the commission of
the offense
6.) If it states the place where the offense was committed
Note: The void-for-vagueness rule also applies in the right of
the accused to be informed of the nature and cause of the
accusation against him.
Remember: The test as to when the rights of an accused
are prejudiced by the amendment of a complaint or
information is when a defense under the complaint or
information, as it originally stood, would no longer be
available after the amendment is made and when any
evidence the accused might have, would be inapplicable to
the complaint or information as amended.
An information which lacks essential allegations may still
sustain a conviction when the accused fails to object to its
sufficiency during the trial, and the deficiency was cured by
competent evidence presented therein.

THE TRIAL

to have a speedy, impartial and public trial

Calls for the cold neutrality of an impartial judge


Publicity of the trial is necessary to prevent abuses that may
be committed by the court to the prejudice of the defendant.
Publicity of the trial ensure whether or not the constitutional
safeguards for the benefit of the accused are being
observed.
Speedy Trial defined: one free from vexatious, capricious
and oppressive delays and is intended to relieve the accused
of needless anxieties and inconveniences before sentence is
pronounced upon him.
Sec. 16 of the Bill of Rights. All persons shall have the right
to a speedy disposition of their cases before all judicial,
quasi-judicial, or administrative bodies.
Inordinate delay in resolving a criminal complaint being
violative of the constitutionally guaranteed right to due
process and to the speedy disposition of cases, warrants the
dismissal of the criminal case.

1.) Trial In Absentia


Sec. 14 (2) after arraignment, trial may proceed
notwithstanding the absence of the accused provided
that he has been duly notified and his failure to appear
is unjustifiable.
REQUISITES:
1.) The accused has already been arraigned
2.) He has been duly notified of the trial
3.) His failure to appear is unjustified.
Note: If the accused has not been arraigned and remained at
large, the case is archived.
Purpose of Trial in Absentia: to speed up the disposition of
criminal cases

THE RIGHT OF CONFRONTATION

to meet the witnesses face to face


This procedure determines the credibility of the witnesses.
TWO-FOLD PURPOSE:
1.) To afford the accused an opportunity to test the
testimony of the witness by cross-examination
2.) To allow the judge to observe the deportment of
witnesses.

COMPULSORY PROCESS

and to have compulsory process to secure the


attendance of witnesses and the production of evidence in
his behalf.
Issuance of subpoena ad testicandum ordering a person to
attend the court trial
Issuance of subpoena duces tecum order of the court to
produce documentary evidence.
Purpose: compelling the attendance of witnesses and the
production of evidence that he may need for his defense.
Must be invoke during trial.

PROHIBITED PUNISHMENTS

Sec 19 (1) Excessive fines shall not be imposed nor cruel,


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

(2) The employment of physical, psychological, or degrading


punishment against any prisoner or detainee or the use of
substandard or inadequate penal facilities under subhuman
conditions shall be dealt with by the law.

DOUBEL JEOPARDY

Sec. 21 No person shall be twice put in jeopardy of


punishment for the same offense. If an act is punished by a law
and an ordinance, conviction or acquittal under either shall
constitute a bar to another prosecution for the same act.

Prohibits the prosecution again of any person for a crime of


which he has previously been acquitted or convicted.
Purpose: to set the effects of first prosecution forever at rest,
assuring the accused that he shall not thereafter be
subjected to the dangers and anxiety of a second charge
against him for the same offense.

REQUISITES:
1.) Valid complaint or information (must not be defective.
Should be complete)
2.) Filed before a competent court (must have jurisdiction);
(3) to which the defendant had pleaded (there must be an
arraignment); and (4) of which he had been previously
acquitted or convicted or which was dismissed or
otherwise terminated without his express consent (there
is a judgment that is rendered final and executory).

APPEAL OF PROSECUTION

A judgment of acquittal is final and is no longer reviewable.


Cannot be reconsidered because if so, it would place the
accused in double jeopardy.
The prosecution can appeal where the accused is deemed to
have waived or is estopped from invoking his right against
double jeopardy.

CRIMES COVERED

The accused may not be prosecuted anew for the original


offense charged, or for any attempt to commit the same or
frustration thereof, or for any offense which necessarily
includes or is necessarily included in the offense charged in
the original complaint or information

DOCTRINE OF SUPERVENING EVENT

The accused may be prosecuted for another offense if a


subsequent development changes the character of the first
indictment under which he may have already been charged
or convicted.
Rule 117 Section 7 of the Rules of Court, additional
instances:
1.) The graver offense developed due to supervening facts
arising from the same act or omission constituting the
former charge;
2.) The facts constituting the graver charge became known
or were discovered only after the filing of the former
complaint or information; or
3.) The plea of guilty to the lesser offense was made
without the consent of the prosecutor and of the offended
party except as provided in Section 1 (f) of Rule 116.

INSEPARABLE OFFENSES
Where an offense is inseparable from another and proceeds
from the same act, they cannot be the subject of separate
prosecutions.
However, it is possible for one act to give rise to several
crimes, in which case separate prosecutions for each crime
may be filed, provided the elements of the several crimes
are not identical.

ACT VIOLATING LAW AND ORDINANCE

If an act is punished by a law and an ordinance, conviction


or acquittal under either shall constitute a bar to another
prosecution for the same act.

CHAPTER 21: FREE ACCESS TO COURTS

Art. III, Sec 11. that free access to the courts and quasi-
judicial bodies and adequate legal assistance shall not be denied
to any person by reason of poverty.

Basic premise: The existence of this law is essential in a


democracy and in the rule of law. Without doubt, one of the
most precious rights which must be shielded and secured is
the unhampered access to the justice system by the poor,
the underprivileged and the marginalized.