Constitutional Law II Summary
(Fr. Joaquin Bernas)
Bill of Rights
Section 1: No person shall be deprived of life,
liberty or property without due process of the
law, nor shall any person be denied the equal
protection of law
Bill of Rights: Protection Against Abuse of
Power
• “The perfection of humanity is not possible
without freedom for the individual. The existence
of social institutions and all political
organizations and relationships are justified
insofar as they have for their primary aim the
defense and protection of freedom, however a
political institution must possess power. Hence,
government becomes the delicate art of
balancing the power of government and freedom
of the governed.” - Apolinario Mabini
• Spanish Rule- power outweighed freedom
• Aim of RP revolution- achieve a just restraint of
governmental power and the corresponding
expansion of individual freedom.
• Gift of American conqueror- system that
promised achievement between power and
freedom.
3 Great powers (totality of governmental
powers)
• police power (PP)
o most essential, most insistent and least
limitable of powers, extending as it does on all
the great public needs
o negatively- that inherent and plenary power in
the State which enables it to prohibit all that is
hurtful to the comfort, safety and welfare of
society
o “the power vested in the legislature by the
constitution to make, ordain, and establish all
manner of wholesome and reasonable laws,
statutes, and ordinances, either with penalties
or without, not repugnant to the constitution,
as they shall judge to be for the good and
welfare of the commonwealth, and of the
subject of the same.” - Justice Shaw
o Rests upon public necessity and the right of the
state and of the public to self- protection.
o Scope expands and contracts with changing
needs.
o Deemed within the field of private liberty and
property rights.
• power of imminent domain
• power of taxation
→ These powers are inherent
→ A constitution does not grant such power to the
government; a constitution can only define and
delimit them and allocate their exercise among
various government agencies.
→ Constitutional jurisprudence- strive a balance
between governmental power and personal
freedom
• PP used to justify public health measures
• requirements to make house repairs
o compulsory connection to a city sewerage
system
o the licensing of practice of medicine
• PP used to justify public safety measures
o building regulations
o regulations of the carrying of deadly weapons
o the requirement of rotational participation in
patrol duty
o regulation of gasoline stations and movie
theaters
• PP used to justify public morals
o basis for judicial approval of legislation
punishing vagrancy and classifying a pimp as a
vagrant
o regulating operations of public dance halls
o prohibiting gambling
o regulating the days when the panguingui may
be played
o licensing cockpits
o penalizing various activities connected with the
use of opium
o prohibiting the operation of motels and hotels
o regulating establishment of massage parlors
• Cases on PP used to justify public morals:
o Dela Cruz vs. Judge Paras
 municipality refused to give any permit for
night clubs and any license for professional
dancers
 court held that ordinance was unconstitutional
as going beyond mere regulation into
prohibition of a profession or calling which,
properly regulated can be legiitimate.
o City of Manila vs. Judge Laguio
 City council prohibited sauna parlors,
massage parlors, karaoke bars, night clubs,
day clubs, supper clubs, discotheques,
cabarets, dance halls, motels and inns in the
Ermita-Malate area contending they are within
the classification as that with house of ill-
repute and establishments of the like.
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  SC held- The enumerated establishments are
lawful pursuits which are not per se offensive
to the moral welfare of the community.
o Magtajas vs. Pryce Properties
 While gambling is prohibited, when it is
allowed, the courts will not pass judgment on
the choice of Congress.
 Morality of gambling is not a justiciable issue.
 Gambling is no illegal per se.
 There is nothing in the Constitution that
catergorically proscribe or penalize gambling,
for that matter, even mentioning at all.
 Left to the discretion of the Congress to deal
with the activity as they see fit.
 Local governments may not, in spite of
provisions on local autonomy, contravene on
the judgment of Congress to prohibit
gambling.
• PP to promote general welfare
o Regulating the slaughter of carabaos
o Prescribing provisions for the suppression of
agricultural pets
o Regulating nuisances
o Laying down rules for deportation of aliens
o Regulating building construction and the
activities of town criers and the noise of bells
o Prescribing registration of land under the
Torrens System
o Zoning regulations
o Moratorium laws
o Anti-graft laws designed to curb activities of
public officials
o Restriction on foreign exchange
o Limitation on the net profits realized by public
utilities
~In People vs. Palomar: RA 2631, providing
for the raising of funds for the Philippine
Tuberculosis Society by the issuance of the
anti-TB postal stamps could have been
treated as an exercise of the police power.
The majority treated it as an exercise of
taxing power, (Fernando, J- concurring)~
• Areas where use of PP has shown
significant development and change in the
Philippine jurisprudence
o Labor
o Agricultural tenancy
o Social legislation
→ The direction of change has been away from
laissez faire1.
→ PP has been used even in the face of
apparent conflict with both the freedom of
contract and the sacredness of contractual
obligations. Even employer’s choices may
also be curtailed.
o Thus, the law requiring the decision of
a labor arbiter ordering reinstatement
pending appeal as been allowed even
when the employer is willing to post a
bond.
• PP enjoys the presumption of
constitutionality
o The presumption is al in favour of validity… The
judiciary should not lightly set aside legislative
action when there is no clear invasion of
personal or property rights under the guise of
police regulation. (Us vs. Salaveria)
Life, Liberty, Property
• The guarantees extended by the Congress of the
United States to the Philippines have been used
in the same sense as like provisions found in the
United States Constitution...
• Due process of law and equal protection of
laws’ reach of protection touched all persons,
they be citizens or aliens, natural or corporate.
~a number of cases affirm that the civil
rights of aliens are basically the same as
those of citizens. The exceptions are the
political rights of aliens.
~There is no significant Philippine
Jurisprudence on the inherent differences
between natural persons for purposes of the
protection given by the due process
clause.~
• The guarantees of the 14th amendment and so of
the first paragraph of the Philippine Bill of Rights
are universal in their application to all persons
within the territorial jurisdiction without regard
to any differences of race, color or nationality.
The word “person” includes aliens… private
corporations, likewise, are “persons within the
scope of the guarantees in so far as their
property is concerned.
• The guarantee protects liberty.
Liberty by Justice Malcolm
• Civil Liberty- may be said to mean that
measure of freedom which may be enjoyed in a
civilized community, consistently with the
peaceful enjoyment of like freedom in others.
• The right to liberty guaranteed by the
Constitution includes the right to exist and the
right to be free from arbitrary personal restraint
or servitude.
• Deemed to embrace the right of man to enjoy
the faculties to which he had been endowed by
his creator, subject only to subject on to such
restraints necessary for common welfare.
• Liberty includes the right of the citizen to be free
to use his faculties:
o In all lawful ways to live
o to live and work where he will
o to earn his livelihood by any lawful calling
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 o to pursue any avocation
o to enter into all contracts which may be proper,
necessary, and essential to the carrying out of
these purposes to a successful conclusion.
• Chief elements of the guarantee are the: right
to contract, the right to choose one’s
employment, the right to labor and the
right of locomotion.
• Borrowed from Apolinario Mabini, calling liberty
“freedom to do right and never wrong… ever
guided by reason and the upright and
honourable conscience of the individual.”
• The core of protected liberties includes not
merely freedom from bodily restraint but also
the right of the individual to contract, to engage
in any common occupation of life, to acquire
useful knowledge, to marry, to establish a home
and bring up children [and] to worship God
according to the dictates of conscience.
• Liberty is so important, that Justice Conception
emphasized how it is not only preserved in the
1st paragraph of the bill of rights but also in other
provisions of the Constitution.
• Writ of Amparo
o Section 1. Petition – The petition for a writ of
amparo is a remedy available to any person
whose right to life, liberty and security is
violates or threatened with violation by any
unlawful act or omission of a public official or
employee, or of a private official or entity.
The writ shall cover extralegal killings and
enforced disappearances or threats thereof.
o Under the guidance of Justice Renato Puno
o Borrowed from Latin American Tradition
o A new safeguard of liberty
o Canlas vs. Napico Homeowners
 A threatened demolition of dwelling is not
included among the enumeration of rights as
stated in the above- quoted provision since it
does not constitute right to life, liberty and
security.
o Manalo vs. PNP Chief
 But where the limitation imposed upon public
officers is that their movements within the
premises of the camp shall be monitored,
they have to be escorted whenever the
circumstances warrant they leave the camp,
and that their estimated time of departure
and arrival shall be entered in the handbook,
there is no deprivation of liberty.
o In re Petition for Habeas Corpus
 Upheld blanket restriction on contact visits of
military detainees as a practice reasonably
related to maintaining security.
• Visitors and staff may be held hostage to
effect escape.
• Leaves jail vulnerable to visitors smuggle
weapons, drugs and other contraband.
 Security consideration outweighs
sentimentality of the detainees.
Protected Property
• Deemed to include vested rights such as:
o Perfected mining claim
o Perfected homestead
o A final judgment
• Right to work
• Right to earn a living
• One’s profession, employment, trade or calling is
a protected property.
• Public office is not a property but a “public
trust or agency”
~ The basic idea of the government in the
Philippine Islands, as in the United States,
is that of a popular representative
government, the officers being mere
agents and not the rulers of the people,
one where no one man or set of men has
propriety or contractual right to an office,
but where every officer accepts office… as
a trust for the people whom he represents.
(Cornejo vs. Gabriel citing Taylor vs.
Beckham)~
• This is not to say however that the right to office
is not a protected right.
~subject properly belongs to the Law on
Public Officers and the Civil Service System
whose establishment is authorized by the
Constitution itself (Segovia vs. Noel). ~
• Due process may be relied upon by public
officials to protect the security of tenure which in
the limited sense is analogous to property.
~subject properly belongs to the Law on
Public Officers and the Civil Service System
whose establishment is authorized by the
Constitution. (Morfe vs. Mutuc). ~
• Cases on Protected Property
o Pedro vs. Provincial Board of Rizal
 A license to operate a cockpit is not
considered a protected property.
 Deemed merely a privilege withdrawable
when public interest required its withdrawal.
o Luque vs. Villegas
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  A certificate of public convenience granted to
a transportation company confers no property
right on the route covered thereby.
o American Inter-Fashion Corporation vs.
Office of the President
 Even a privilege may evolve into some sort of
property protected by the Constitution as for
instance when a holder of an export quota has
been enjoying it for so long and has put
substantial investment in making the business
the source of employment for thousands
o Corona vs. United Harbor Pilots
Association of the Philippines
 An administrative officer shortened the life of
existing license of harbour pilots to a certain
date before their retirement but without any
hearing.
 Court ruled that the order was a violation of
the right of the pilots:
• “It is this pre-evaluation cancellation which
primarily makes PPA-AO No. 04-92
unreasonable and constitutionally infirm.”
o In a real sense it is a deprivation of
property without due process of the law.
o Bell vs. Burson
 Pronouncements which say that licenses are
not protected property but mere privileges
cannot be taken as a sweeping declaration
that revocation of licenses never require
opportunity for a hearing.
 “Once licenses are issued… continuous
possession may become essential in the
pursuit of a livelihood. Suspension of issued
licenses thus involves state action that Right to Life
adjudicate important interests of licenses.
o Army and Navy Club of Manila, Inc. vs.
Court of Appeals
 Classification of property into historical
treasures or landmarks to the extent that it
will involve the imposition of limits on
ownership, must also be done with both
procedural and substantive due process.
o Duncan Association of Employees vs.
Glaxo Welcome
 Policy against employees having marital or
romantic relationship with employees of
competitor companies can be justified if
based on the right to guard a company’s
trade secrets, for instance, those of a
pharmaceutical company.
 Where, however, there is no reasonable Hierarchy of Rights
necessity for the prohibition, it is an illegal • Convention deliberations (session of November
limitation on employment as property. (as
held in Star Paper vs. Simbol)
o Executive Secretary vs. Court of Appeals
 A law allowing only skilled workers to be
deployed for oversees employment can be
valid.
 No right is absolute and the proper regulation
of a profession, calling, business or trade has
always been upheld as a legitimate subject of
a valid exercise for the police power by the
legitimate governmental functions, the
preservation of the State, or the public health
and welfare and public morals.
o Beltran vs. Secretary of Health
 Private commercial blood banks are protected
by property.
 However, although their phase out can be
disadvantageous to the owners as it can
affect their business and existing contracts
with hospitals and other health institutions, it
can be justified by the duty of the State to
promote the general welfare.
 The state may interfere with personal liberty,
with property and with business and
occupations in order to secure general
welfare.
o Lucena Grand Central Terminal, Inc. vs.
JAC Liner, Inc.
 An EO requiring the closure of bus terminals
in the city was found to be an unreasonable
exercise of police power as it would seriously
inconvenience the riding public.
 Even in EO was valid, the MMDA would be the
wrong person to carry it out since this matter
has been given by law to the DOTC.
• The Constitutional protection of the right of life is
not just a protection of the right to be alive or to
the scrutiny of one’s limb against physical harm.
• The right to life is also the right to good life.
• Importance of quality of living, emphasized in
Constitution:
o On Social justice (Article XIII)
o Life of the unborn (Article II, Section 12)
o Policy against nuclear arms (Article II, Section
8)
o Abolition of death penalty (Article III, Section
19)
→Reflective of the high value the Constitution
places on life.
25, 1972) clearly recognized that the social
character of private property, emphatically
enunciated in [1935] Article II, Section 6
definitely placed property in a position inferior to
life of liberty.
Page 4 of 104
• “What cannot be stressed sufficiently is that if
the liberty involved were the freedom of the
mind or the person, the standard for the validity
of governmental acts is much more rigorous and
exacting, but where the liberty curtailed affects
at the most the rights of property, the
permissible scope of regulatory measure is
wider” – Justice Fernando
• Philippine Blooming Mills Employees
Organization vs. Philippine Blooming Mills
Co, Inc. 1973- Justice Makaisar
o “While the Bill of Rights also protects property
rights, the primacy of human rights over
property rights is recognized. Because these
freedoms are “delicate and vulnerable, as well
as supremely precious in our society” and the
“threat of sanctions may deter their exercise
almost as potently as the actual application of
sanctions, “they need breathing space to
survive.” Permitting government regulation
only “with narrow specificity.
o Property and property rights can be lost
through prescription; but human rights are
imprescriptible. If human rights are • There are various provisions in the Constitution
extinguished by the passage of time, then the
Bill of Rights is a useless attempt to limit the
power of the government and ceases to be an
efficacious shield against tyranny of officials, of
majorities, of the influential and powerful, of
oligarchs – political, economic or otherwise.
o In the hierarchy of civil liberties; the rights of Due Process as Procedural Fairness
free expression and of assembly occupy a
preferred position, as they are essential to the
preservation and vitality of our civil and
political institutions; and such priority “gives
these liberties the sanctity and the sanction not
permitting dubious intrusions.
o The superiority of these freedoms over
property rights is underscored by the fact that
a mere reasonable or rational relation between
the means employed by the law and its object
or purpose – that the law is neither arbitrary
nor discriminatory nor oppressive – would
suffice to validate a law which restricts or
impairs property rights. On the other hand, a
constitutional or valid infringement of human
rights requires a more stringent criterion,
namely existence of a grave and immediate
danger of a substantive evil which the State
has the right to prevent.
• This is not to, however, that property is not a
basic right. Property has an intimate relation
with life and liberty.
• “You take my life, when you do take the means
whereby I live.” –Shylock
• Founders of the US Constitution were aware that
protection if property was a primary object of the
social compact and that the absence of such
protection would lead to anarchy and tyranny.
• Property is an important instrument for the
preservation and enhancement of personal
dignity,
o The poor are oppressed because they are poor.
In their regard, property is as important as life
and liberty – and to protect their property is to
protect their life and liberty.
• Property tends to be relegated to a lower level
than life or liberty, it is not because its intimate
connection with life or liberty is being forgotten.
On the contrary, today’s hierarchical
arrangement of values is precisely a recognition
of the importance of property for man.
• The object of more intensive and extensive
government regulation of property is to make its
beneficent purpose equitably available to all.
• Property is more closely regulated not in order to
oppress the owner but in order to impress upon
him the social order of what he holds.
• Property stands a good chance of serving and
enhancing the life and liberty of all.
(especially Article XIII) to protect property – but
always with the explicit or implicit reminder that
property has a social dimension and that the
right to property is weighted with social
obligation.
• restraint was construed mainly in the narrow
sense that a legislature must provide “due
process in the enforcement of law” (early history
of due process clause in US Constitutional Law).
• Due process
o Understood to relate chiefly to the mode of
procedure which government agencies must
follow.
o Guarantee of procedural fairness
o “A law which hears before it condemns.” –
Daniel Webster
o “It is not possible to hold that a party, without
due process of law, been deprived of his
property, when, as regards the issue affecting
it, he has, by the laws of the State, a fair trial in
a court of justice, according to the mode of
proceeding applicable to such case. (Davidson
vs. New Orleans)
• Early decisions in Philippine jurisprudence
attempt to define due process (of law):
o U.S. vs. Ling Su Fan
 First. That there shall be a law prescribed in
harmony with the general powers of the
legislative department of the Government;
Second. That this law shall be reasonable in
its operation. Third. That it shall be enforced
according to the regular methods of
Page 5 of 104
 procedure prescribed; and Fourth. That it shall
be applicable alike to all citizens of a state of
to all of a class.
o Forbes vs. Chuoco Tiaco
 an exercise of the powers of the government
as the settled maxims of the law permit and
sanction under such safeguards for the
protection of individual rights as those
maxims prescribe for the class of cases to
which the one in question belongs.
o Lopez vs. Director of Lands (recalling
Webster’s remark)
 Is more clearly intended the general law, a
law which hears before it condemns; which
proceeds upon enquiry, and renders judgment
only after trial. The meaning is that every
citizen shall hold his life, liberty, property and
immunities under the protection of general
rules which govern society.”
 It contemplates notice and opportunity to be
heard before judgment is rendered, affecting
one’s person or property.
 It is not every act, legislative in form.
 ...Arbitrary power, enforcing its edicts to the
injury of the person and property of citizens,
is not law
→ ~Schwartz points out that in Webster’s
conception, due process is more than a
procedural guarantee, since the law must be
a “general law” (i.e. a law which is nor
discriminatory). Philippine decisions
generally look on Webster’s definition as
merely one of due process.~
• What is due process of law depends on
circumstances. It varies with the subject matter
and the necessities of the situation.
• The case of Banco Español Filipino vs.
Palanca, however, presents what has been
considered a clear delineation of the essentials
of procedural fairness in judicial proceedings.
The Court said:
o The requirement of due process is satisfied if
the following conditions are present:
 There must be a court or tribunal clothed with
judicial power to hear and determine the
matter before it.
 Jurisdiction must be lawfully acquired over the
person of the defendant or over the property
which is the subject of proceedings
 The defendant must be given an opportunity
to be heard.
 Judgment must be rendered upon lawful
hearing.
→ these are minimum requirements. They are
spelled out in the details of procedural
statutes and the Rules of Court.
• Due process, however, is not always a judicial
process.
• It does not always include “actor reus, judex,
regular allegations, opportunity to answer and a
trial according to some settled course of judicial
proceedings.
o These are required in the courts of justice; but
frequently legal controversies have to be
decided not by courts of justice but by
administrative bodies which are not often
bound by judicial due process though they are
bound by the due process clause.
• The case of Ang Tibay vs. Court of Industrial
Relations has called the “cardinal primary”
requirements in administrative proceedings:
o The right to a hearing- which includes the right
to present ones case and submit evidence in
support thereof.
o The tribunal must consider the evidence
presented.
o The decision must have something to support
itself.
o The evidence must be substantial.
 Substantial evidence- such reasonable
evidence as a reasonable mind might accept
as adequate to support a conclusion.
o The decision must be based on the evidence
presented at the hearing; or at least contained
in record and disclosed to the parties affected.
o The tribunal or body or any of its judges must
act on its own independent consideration of the
law and the facts of the controversy and not
simply accept the views of a subordinate.
o The board of body should, in all controversial
questions, render its decision in such manner
that the parties to the proceeding can know the
various issues involved.
o The reason for the decision rendered.
• ~a briefer statement of the requirements:
 The right to actual or constructive notice of
the institution of proceedings which may
affect respondent’s legal rights.
 a real opportunity to be heard personally or
with the assistance of counsel, to present
witnesses and evidence in ones favour and to
defend ones rights.
 A tribunal vested with competent jurisdiction
and so constituted as to afford a person
charged administratively a reasonable
guarantee of evidence submitted for
consideration during the hearing or contained
the records or made known the parties
affected.~
~in administrative proceedings, the quantum of
proof required is only substantial evidence.~
• Whether in judicial or administrative
proceedings, the heart of due process is the
need for notice and opportunity to be heard.
Page 6 of 104
 o What is required is not an actual hearing but a
real opportunity to be heard.
 Assistant executive Secretary vs. Court
of Appeals
• One who refuses to appear at a hearing is
not thereby denied due process if the
decision is reached without waiting for him.
Likewise, the requirement of due process
can be satisfied by a subsequent due
hearing.
→ This has been the gist of later decisions. It is
a rule that guarantees fairness in the
enforcement of laws which effect deprivation.
Examples of these decisions:
• ~On the ejectment of squatters (Mendoza
vs. National Housing Authority)
• Enforcement of responsibility of
responsibility of surety (Malayan Insuran vs.
Salas)
• On the discipline of students (Molino vs. CA,
Benigna vs. Philippine Maritime Institute)
• For purposes of a hearing on an application
for a certificate of public convenience, aside
from notice by publication there is required
individual notice to operators affected and
whose names appear in the list attached to
the order. (Cordero vs. Public Service
Commission)~
• As a rule of fairness, procedural due process
helps achieve two purposes:
o Instrumentality, it contributes to accuracy and
thus minimizes errors in deprivations.
o Intrinsically, to the person who is the subject of
deprivation, it gives him a sense of rational
participation in a decision that can affect his
destiny and thus enhances his dignity as a
thinking person.
• It has been recently heard that while fairness is
not violated in administrative proceedings when
the hearing is not the same person who decides
the case, there is violation of due process when
the officer who reviews a case is the same
person whose decision is on appeal.
• It has also been held that, while notice of hearing
are required in the judicial and quasi-judicial
proceedings, they are not prerequisites in the
promulgation of general rules. But fixed rates,
being a quasi-judicial process, requires hearing.
• A relatively recent development in Philippine law
is the articulation of specific due process
guidelines for the handling of disciplinary cases
in schools.
o The development has come about as the
balancing instruments in conflicts involving the
rights of the students and the rights of schools
to academic freedom.
o Licup vs. University of San Carlos
 The contractual obligation of a school to
afford its students a fair opportunity to
complete a course is recognized.
 However, the students forfeits his rights and
courts are at liberty to reverse the discretion
of university authorities when:
• A student commits a serious breach of
discipline
• A student fails to maintain the required
academic standards of the school.
• But the courtshas also set down the procedure
which educational institutions must follow.
• the case of Guzman vs. National Univertsity
presents the minimum standards which must be
met to satisfy the demands of procedural due
process:
o that the students must be informed in writing
the nature and cause of any accusation against
them.
o They shall have the right to adduce evidence in
their own behalf.
o The even must be duly considered by the g
committee or official designated by the school
authorities to hear and decide the case.
• Similarly, a teacher in a school administrative
proceeding has a right to be assisted by counsel.
Substantive Due Process
• The clause must be understood to guarantee nor
just forms of procedure but also the very
substance of life, liberty and property.
• The due process clause must be interpreted both
as a procedural and as a substantive guarantee.
• It must be a guarantee against the exercise of
arbitrary power even when the power is
exercised according to proper forms and
procedure.
o “The Courts are at liberty – indeed under a
solemn duty – to look at the substance of
things, whenever they enter upon the enquiry
whether the legislature has transcended the
limits if its authority.” – Justice Harlan
• US vs. Toribio
o Set the pattern for substantive due process
o A statute regulating the slaughter of large
cattle, a measure designated to preserve work
animals needed for agriculture, was challenged
as unlawful deprivation of property.
o The Court, quoting Lawton vs. Steel held:
 The State may interfere whenever the public
interest demands it, and in this particular a
large discretion is necessarily vested in the
legislature to determine, not only what the
interests of the public require but what
measures are necessary for the protection of
such interests.
Page 7 of 104
  To justify the state in thus interposing its
authority to the public it must appear that:
• The interests of the public, generally as
distinguished from those of a particular
class, require such interference.
• The means are reasonably necessary for the
accomplishment of the purpose and not
unduly oppressive upon individuals.
o The court may not under the guise of
protecting public interest, arbitrarily interfere
with private businesses or impose unusual and
unnecessary restrictions upon lawful
occupations.
 Its determination as to what is proper
exercise of its police powers is not final or
conclusive, but is a subject to supervision of
the courts.
• Court considers itself as a competent arbiter of
the objective reasonableness of legislative
action. But it also allowed such competency to
be limited by the recognition of the presumptive
reasonableness of governmental action.
• Cases illustrating how substantive due process
was allowed to operate:
o U.S. vs. Salaveria
 The court was willing to defer to the
legislative judgment of a municipal council,
the lowest law making authority under the
existing system.
 Court held that the municipality is in a better
position to say whether playing panguingi (on
weekdays) is deleterious to social order and
public interest.
• The judiciary should not lightly set aside
legislative action where there is no clear
invasion of personal or property rights under
the guise of police regulation.
o Churchill vs. Rafferty
 Court favoured an unusual piece of nuisance
abatement.
 It upheld the validity of a portion of a statute
authorizing the Collector of Internal Revenue
to remove any sign, signboard or billboard
found by him to be offensive to the sight or
otherwise a nuisance.
 Applied the rule in Munn v. Illinois
• If no state of circumstances could exist to
justify such statute, then we may declare
thus one void because in excess of the
legislative power of this state; but if it could,
we must presume it did. Of the propriety of
legislative interference, within the scope of
the legislative power, a legislature is the
exclusive judge.
 Court added
• Sight is as valuable to a human being as any
other sense, and that the proper
ministration of this sense conduces as much
to his contentment as the care bestowed.
Upon the senses of hearing and smell, and
probably as much both together.
o State Bank vs. Hankel
 Objection of aesthetic taste as already
adopted in several cases… that the prevailing
morality or strong and prepondering opinion
demands such legislation
→ Thus, by this juxtaposition of principles, and
unwilling to accept the American rule that
aesthetic considerations are a matter of
luxury and not justify the exercise of police
power, the Supreme Court in its ruling no
new doctrine but merely a new application of
an old principle.
• History of aesthetics in police power
jurisprudence in the US:
o City of Passic vs, Patterson Bill Posting
 Aesthetic considerations are a matter of
luxury and indulgence rather than of
necessity , and it is necessity alone which
justifies the exercise of police power.
o Varney and Greens vs. Williams
 We find that the one ground upon which the
town council may be thought to have acted is
that appearance of billboards is, or may be,
offensive to the sight of persons or refined
taste… it has never been held that these
considerations alone justify, as an exercise of
police power, a radical restriction of an owner
of property to use his property in an ordinary
and beneficial way.
→ Gradually, however, “persons of redefined
taste” slowly gained ground by pairing
considerations of aesthetics with health,
safety, and morals as our courts did with
Churchill.
o “Beauty may not be queen, but she is
not an outcast beyond the pale
protection or respect. She may at least
shelter herself under the wing of safety,
morality or decency. – Justice Pound
(Perlmutter vs. Greene)
o General Outdoor Advertising Co vs.
Department of Public Works
 In 1935, through a law which disallowed
billboards that blocked the view of areas of
scenic beauties.
 Massachusetts court said: “the preservation
of scenic and places of historical interest
would be of sufficient support [for advertising
regulation]. Considerations of taste and
fitness may be a proper basis for action in
Page 8 of 104
 granting and denying permits for locations for
advertising devices.”
o Berman vs. Parker
 US Supreme Court in 1954 held: “The concept
of public welfare is broad and inclusive… the
values it represents are spiritual as well as
physical, aesthetic as well as monetary. It is
within the power of the legislature to
determine that the community should be
beautiful as well as healthy, spacious as well
as clean, well balanced and as well as
carefully patrolled.
→ State courts soon followed.
• Regulation of billboards:
o Depend on whether they are on site or off
site.
 On site- to advertise goods and services which
may be found in the place where billboards
stand.
• The regulatory power over on sight
billboards can be necessarily narrower
because of the freedom of persons to treat
their premises as they please.
 Off site- billboards erected in public places or
away from the goods or services being
advertised.
o Whether on site or off site, billboards can be
regulated for the purpose of safeguarding
public safety or avoiding visual clutter or urban
blight.
• Cases illustrating how substantive due process
was allowed to operate:
o Rubi vs. Provincial Board of Mindoro
 A law creating reservations for the Mangyan
tribes and prescribing penalties for Mangyan
non-conformists was challenged as
deprivation of liberty without due process of
law.
 The law was justified by demands of general
welfare and public interest.
o de Palad vs. Saito
 the objection of deprivation of liberty without
due process was raised against an act
prescribing that “conveyances and
encumbrances made by persons belonging to
the so-called ‘non-Christian tribes,’ when
proper, shall not be valid unless duly
approved by the Director of the Bureau of
non-Christian Tribes.”
o Binay vs. Domingo
 Similarly, applying principles of social justice,
the municipality of Makati was allowed to use
public money for burial assistance to
indigents.
o Villavicencio vs. Lukban
 Not successful to clean the city of prostitutes
by the Mayor and Chief of Police of Manila
 Not authorized by any law, order or
regulation, they herded together prostitutes
of Manila and shipped them to Davao.
 At that time, there was no provision in the
constitution guaranteeing to citizens the right
not to be made to change their residence.
• Nevertheless, the Liberty of abode and
changing of same was subsumed under the
due process clause.
 Court granted a writ of habeas corpus and
ordered the return of the deportees.
 Court held:
• The courts will assist in retaining it as
government of laws and not of men, and
that no official however high, is not above
the law, and that the courts are the forum
which function to safeguard individual liberty
and to punish official transgressors.
o People vs Pomar
 At issue was freedom of contract. The case
dealt with a statute prescribing a thirty day
vacation with pay both before and after
confinement arising from pregnancy.
 Court held:
• The rule in this jurisdiction is that the
contracting parties may establish
agreements, terms and conditions they may
deem advisable, provided they are not
contrary to law, morals or public policy.
 The Philippine Supreme Court struck down the
statute as an invasion of freedom of contract.
 Court cited Adkins vs. Children’s Hospital:
o The right to contract about one’s own
affairs is a part of the liberty of the
individual guaranteed by this [due process]
clause]…
 Court also approved of Adair vs. US’ “equality
of rights” principle:
• In all such particulars the employers and the
employee have equality of right, and any
legislation that disturbs that equality is an
arbitrary interference with the liberty of
contract which no government can legally
justify in a free land…” Police power, the
court conceded, is an expanding power; but
it “cannot grow faster than the fundamental
law of the State,.. if the people desire to
have the police power extended and applied
to conditions and things prohibited by the
organic law, they must first amend the law.”
o Caunca vs. Salazar
 Court said that liberty could be impaired in
the absence of physical force: freedom could
be lost through moral compulsion.
o People vs. Cayat
Page 9 of 104
  Reaffirmed decisions in the cases Rubi and de
Palad for the care and welfare of non-
Christian tribes.
o People vs. Ventura
 Affirmed decision in Gomes Jesus case
regarding the right of the state to provided
the citizens with the competent medical
assistance through the licensing of physicians.
o People vs. Fajardo
 A building permit was denied to an owner of a
piece of land on the ground that the proposed
construction would block the view from the
highway towards the municipal plaza.
 Court said:
• The ordinance is unreasonable
oppressive in that it operated
permanently divest appellants of the right to
use their own property; hence, it oversteps
the bounds of police power, and amounts to
a taking of appellant’s property without just
compensation.
• The State may not under the guise of police
power permanently divest owners of the
beneficial use of their property and
practically confiscate them solely to
preserve or assure the aesthetic appearance
of the community.
 In effect, aesthetics may be used as a reason
for “taking”, but then there must be due
process and just compensation.
o Ermita Malate Hotel and Motel Operators,
Inc. vs. City Mayor of Manila
 The constitutionality of a city ordinance
designed in part to curb rampant use of hotels
and motels as places of illicit assignation was
questioned on the following grounds:
• The license fee imposed is unreasonably
high
• The registration requirements for guests
violated due process not only for being
arbitrary and oppressive but also for being
vague, uncertain and likewise for being an
invasion of privacy and of the guarantee
against self-incrimination.
• Official inspection requirements violated due
process
• Minimum facilities requirements were
arbitrary and oppressive
• The requirements that persons less than 18
years of age may not be accepted unless
accompanied by guardians and that no room
may be let out more than twice every 24
hours lacked certainty and were
unreasonable and arbitrary.
• The penalty of automatic cancellation of
license was violative of due process.
 Invasion of the right to privacy and of right
against self-incrimination were dismissed as
not having raised by the proper parties.
 The court was left, therefore, with a simple
case of the exercise of police power to
regulate the use of property for the purpose
of checking “the alarming increase in the rate
of prostitution, adultery and fornication in
Manila traceable in great part to the existence
of motels, which ‘provide a necessary
atmosphere for clandestine entry, presence
and exit’ and thus become the “ideal haven
for prostitutes and thrill-seekers!”
 Court recalled US vs. Salaveria and O”Gorman
an vs. Hartfird Fire Insurance Co. and required
to that since underlying questions of fact might
condition the constitutionality of this type of
legislation, some factual foundation was
presented and the presumption of validity
was allowed to prevail.
 Petitioners, on reconsideration, invoked
principle of laissez faire, Court merely
reminded them that the principle had long
ago given way to the assumption by the
government of the right of intervention.
o Morfe vs. Mutuc
 A provision in the Anti-Graft Law which
required public officers to submit periodically
a sworn statement of assets and liabilities was
challenged as an oppressive exercise of police
power.
 Court said: it would be to dwell in the realm of
abstractions and to ignore the harsh and
compelling realities of public service with its
ever-present temptation to heed the call of
greed and avarice” were it to condemn such
requirement as arbitrary and oppressive.
o Alalayan vs. National Power Corporation
 The requirement tat electric power franchise
holders, receiving at least fifty percent of its
electric power from the National Power
Corporation, “shall not realize a net profit of
more than 12% annually of its investments
plus two-month operating expenses” was
branded as confiscatory by the petitioner.
 The Court said: to speak of it as confiscatory...
is to employ the language of hyperbole.”
• Such comment was made in context of an
earlier case, Manila Electric Co. vs. Public
Service Commission, where 12% rate of
return had been challenged, unsuccessfully,
as too generous.
o Homeowner’s Association o the
Philippines, Inc. vs. Municipal Board of
Manila
 Rare case where a police power measure was
deemed unconstitutional.
Page 10 of 104
  At issue was a municipal ordinance declaring
a state of emergency in the matter of housing
accommodations and regulating rentals of lots
and buildings for residential purposes.
 It was deemed unconstitutional on the ground
that said ordinance did not fix the period of its
effectivity.
 Court held:
• Individual rights may be adversely affected
by the exercise of police power to the extent
only – and only to the extent – that may
fairly be required by the legislative demands
of public interest or public welfare. If such
demands are brought about by a state of
emergency, the interference upon individual
rights, resulting from the regulations
adopted to meet the situation, must be, by
and large, coextensive, coeval or
coterminous with the existence thereof. And
since the emergency is by nature temporary
so must the legislation be.
 That a regulation designed to meet a
temporary need must of necessity also be
temporary in duration is undeniable.
 It is clear from this case that the Court
requires a fixed period; the cardinal sin of the
ordinance in question was found to be the fact
that it did not fix a period at all.
 Case relied on the cases Rutter vs. Esteban
and the Emergency Powers Cases.
o Rutter vs, Esteban- what the court declared
unconstitutional was the continued application
of the mandatory law even after the lapse of
eight years. The court presumed the initial
validity of the law.
o Emergency Powers Cases (Araneta vs.
DInglasan and companion cases)
 although the Congress did not set the time to
limit the grant of emergency powers to the
president, the court did not question the
validity of the initial grant. Rather, the cases
on the emergency powers were an exercise in
search for a time that could not be found in
the statute itself.
 the error in the questioned ordinance, was it
would seem, more tactical than substantial. It
declared a state of emergency.
 What is state of emergency?
• Generally, it is a sudden or unexpected
event which creates a temporary dangerous
condition usually necessitating immediate or
quick action.
• Ordinary or customary existing conditions
are not emergencies. War or threatened
economic collapse would be such
emergency
 Ordinary housing shortage is not an
emergency.
• As one American decision has said, “The
word ‘emergency,’ as used in the housing
legislation... does not have the meaning
given to it by lexicographers. The legislature
has given the word ‘emergency’ a new and
peculiar meaning which is a permanent
condition of insufficiency or service or of
facilities, resulting in social disturbance or
distress.” – this is the type of emergency
contemplated by the questioned Manila
ordinance
 It is the subject of ordinary police power, not
of emergency power. The court considered it
as such, “the authority of the municipal
corporations to regulate is essentially police
power.”
 The court, however, was diverted into
considerations of emergency legislation by
the language of the questioned ordinance.
Hence, instead of presuming the
constitutionality of the regulation and asking
for a demonstration of its unreasonableness,
the court immediately declared it
unreasonable and a violation of due process.
• The most significant dues process decisions,
however, were cases which completely
obliterated laissez faire from constitutional
jurisprudence:
o Those that were upheld:
 Regulations requiring cars to be equipped
with “early warning devices” (EWD) [Agustin
vs. Edu]
 An ordinance regulating the storage of copra
[Procter and Gamble vs. Municiplaity]
 An ordinance regulating public markets
[Javellana vs. Judge Kintanar]
 Regulation imposing the age limits of taxi
cabs [Taxicab operators vs. Board of
Transportation]
 Notice and hearing while required for judicial
and quasi-judicial proceedings, is not needed
in the promulgation of general regulations.
o Those that were not upheld:
 Law requiring that skimmed milk carry the
warning that is not suitable for infants were
found to be a deprivation of property without
due process. [Vera vs. Cuevas]
 An ordinance requiring aliens to obtain a
permit from the mayor before accepting
employment was declared unconstitutional.
[People vs. Hiu Chiong Tsai Pao Ho]
• “While it is true that the Philippines as a
State is not obliges to admit aliens within its
territory, once an alien is admitted, he
Page 11 of 104
 cannot be deprived of life without due
process of law.”
→ ~But see Teehankee’s concurrence which
prefers to treat the matter as ultra vires
problem under the law of public corporations]
• Addtional Cases:
o Metropolitan Traffic Command vs. Judge
Gonong
 Thus car license plates may not be detached
by traffic officers in the absence of a law
prescribing such police action.
o Ynot vs. Intermediate Court of Appeals
 Indelible markings on a foreigner as a
requisite for the exercise of suffrage is a
reasonable instrument for preserving the
sanctitiy of the ballot.
o Lupangco vs. Court of Appeals
 A rule of the Professional regulatory
Commission where restricted reviewees from
attending review classes, briefing conferences
or the like and receiving any hand out, review
material, etc.. was deemed unreasonable and
arbitrary and violative of academic freedom of
schools.
o Balacuit vs. Court of First Instance
 An ordinance prescribing that children
between the ages of 7 and 12 should be
charged only of half the admission price in
movie houses was found to be unrelated to a
public purpose.
o Deloso vs. Sandiganbayan
 Indefinite suspension of a person under
investigation is unreasonable.
o National Development Co. and New Agrix
vs. Philippine Veterans Bank
 The cancellation of all mortgages and other
liens was found to be an arbitrary violation of
the rights of the vreditors.
o Genaro Reyes Construction vs. Court of
Appeals
 An arbitrary cancellation of a government
contract was found to be unconstitutional.
o Tatel vs. Municipality of Virac
 Even the fractured syntax of an ordinance
was not enough to defeat the validity of one
regulating the construction of warehouses
wherein flammable materials are stored.
• Cases regarding principle of presumptive
validity:
o Development Bank of the Philppines vs.
Pundugar
 To recover property lost to the government
after a series of Jacinto lawyers withdrew from
the case was branded by the court as “fraud
and misrepresentation”… perpetrated under
the mantel of due process.
o Lim vs. Pacquing
 Upheld the validity of PD 771 which had
stripped Associated Development Corporation
of its jai-alai franchise but only to give it two
months later to a Marcos relative.
• Publication and clarity of laws as a
requirement of due process
Tañada vs. Tuvera
→ central issue: meaning to be given to the Civil
Code's requirement of publication
→ “unless otherwise provided” refers not to the
need of publication in the Official Gazette but to
the requirement of “15 days.”
→ 15 days can be lengthened or shortened but not
to the point of allowing no publication at all.
Due process: requires that those who must obey
a command must first know the command
Requirement for publication for effectivity
applies to statutes, presidential decrees, executive
orders, administrative rules and regulations (if
purpose is to enforce or implement existing law
pursuant also to a valid delegation)
Rule on vagueness
→ A law that is utterly vague is defective because it
fails to give notice of what it commands.
People vs. Nazario
A statute is vague when it lacks comprehensible
standards that men “of common intelligence must
necessarily guess at its meaning and differ as to its
application.” (Connally vs. General Construction Co.;
American Constitutional Law)
It is repugnant to the Constitution in 2 aspects:
1. violates due process for failure to accord
persons fair notice of the conduct to avoid
2. leaves law enforcers unbridled discretion in
carrying out its provisions and becomes an
arbitrary flexing of the government muscle
→ Act must be utterly vague on its face, it
cannot be clarified by either saving clause
or by construction
→ Coates vs. City of Cincinnati
→ US SC struck down an ordinance that made it
Page 12 of 104
 illegal for “3 or more persons to assemble on anyand well-defined parameters which would enable the
sidewalk and there conduct themselves in a
manner annoying to persons passing.”
→ it imposed no standard at all because one
may never know in advance what annoys some
people but does not annoy others.
→ Highlights “perfectly vague” act as
distinguished from legislation couched in
imprecise language which may be saved by
proper construction
• distinguished from statutes that are
apparently ambiguous yet fairly applicable to
certain types of activities; it may not be
challenged whenever directed against such
activities
• Parker vs. Levy
• prosecution originally under the US Uniform
Code of Military Justice
• the defendant was an army officer who had
urged his men not to go Vietnam and called the
Special Forces trained to fight their thieves and
murderers
• he was not allowed to invoke the void for
vagueness doctrine on the premise that accepted
military interpretation and practice had provided
enough standards and a fair notice that his conduct
was impermissible
• People vs. de la Piedra
• Criminal statute that 'fails to give a person of or special interests
ordinary intelligence fair notice that his
contemplated conduct is forbidden by the statute,'
or is so indefinite that 'it encourages arbitrary and
erratic arrests and convictions' is void for
vagueness.
• Estrada vs. Sandiganbayan
• effort of defense of Pres. Estrada to declare the “combination”
Plunder Law (RA 7089) invalid for being vague.
• The defense attacked the law and claimed that:
1.) it suffered from vice of vagueness
2.) it dispensed with reasonable doubt standard
in criminal prosecutions
3.) it abolished
• SC was unconvinced. It said that the burden of
rebutting the presumption weighs heavily on the
party challenging the validity and must demonstrate
beyond any tinge of doubt that there is indeed an
infringement of constitution.
• Justice Malcolm: “To doubt is to sustain.”
• Plunder Law contains ascertainable standards
accused to determine the nature of his violation.
Sec. 2 is explicit in its description of acts,
conducts and conditions required or forbidden and
prescribes the elements of the crime with
reasonable certainty and particularity.
That offender is a public officer (by himself or in
connivance with members of his family, relatives by
affinity or consanguinity, business associates,
subordinates or other persons)
amassed, accumulated or acquired ill-gotten
wealth through combination or series of:
1. misappropriation, conversion, misuse, or
malversation of public funds
2. receiving (directly or indirectly) any
commission, gift, share, percentage, kickback or
any pecuniary benefit from any person or entity
in connection with any government contract by
reason of his office or position
3. by illegal or fraudulent conveyance or
disposition of assets belonging to the National
Government
4. obtaining, receiving or accepting (directly or
indirectly) any shares of stock or equity,
including a promise of future employment
5. by establishing agricultural, industrial or
commercial monopolies to benefit particular person
6. by taking advantage of official position,
authority, relationship, connection or influence to
unjustly enrich himself or themselves at the
expense and to the damage and prejudice of
Filipinos and Philippines
The defense bewailed the vagueness of
and “series.”
Words of the statute will be interpreted in their
natural, plain and ordinary acceptation and
signification, unless evident that legislature
intended a technical or special meaning.
Combination- the result or product of combining;
the act or process of combining
Series- a number of things or events of the same
class coming one after another in spatial and
temporal succession
The doctrine of void for vagueness does not
apply as against legislations that are merely
couched in imprecise language but which
nonetheless specify though defectively phrased
(may be “saved” by proper construction); or to
those that are apparently ambiguous yet fairly
applicable to certain types of activities (no challenge
Page 13 of 104
 may be mounted whenever directed against such
activities).
• Test in determining whether a criminal
statute is void for uncertainty- whether the
language conveys a sufficiently definite warning as
to the proscribed conduct when measured by
common understanding and practice.
• Justice Mendoza: void for vagueness doctrine persons or other classes in the same place and in
and “overbreadth doctrine” do not apply to criminal like circumstances
cases in general but only to cases involving speech.
• Void for vagueness- a statute which either
forbids or requires the doing of an act in terms so
vague that men of common intelligence must
necessarily guess at its meaning and differ as to its
application (violates first essential due process of
law)
• overbreadth doctrine- decrees that a
governmental purpose may not be achieved by
means which sweep unnecessarily broadly and
thereby invade the area of protected freedoms.
• Broadrick vs. Oklahoma
• Court ruled that claims of facial overbreadth
have been entertained in cases involving statutes
which seek to regulate only spoken words and that
overbreadth claims, if entertained at all, have been
curtailed when invoked against ordinary criminal
laws that are sought to be applied to protected
conduct.
• Doctrine of strict scrutiny, overbreadth and
vagueness are analytical tools for testing “on their
faces” statutes in free speech cases or First
Amendment cases
• Overbroad law does not need to lack clarity or
precision while vagueness law does.
• Laws which do not involve speech can be
declared invalid for vagueness.
(Lanzetta vs. New Jersey- invalidated a statute for
vagueness because it criminalized being a member
of a “gang.”
→ Equal protection
• specific constitutional guarantee of Equality of
the Person
• “legal equality” or equality of all persons before
the law
• (goddess of Justice with a blindfold so that she
may not discriminate against suitors before her, − Most used test- liberal rational scrutiny test
dispensing instead an even handed justice to all.)
• BUT, is not a disembodied equality for the state
has the power to recognize and act upon factual
differences between individuals and classes
The problem in equal protection cases is the
determination of validity of classification made by
the law
guarantee of equal protection according to
Tolentino vs. Board of Accountancy: “no person or
class of persons shall be deprived of the same
protection of the laws which is enjoyed by other
People vs. Cayat
For classification to be reasonable:
1. rest on substantial distinctions
2. germane to the purpose of the law
3. not limited to existing conditions only
4. must apply equally to all members of the
same class
Test of Reasonableness
1.) strict scrutiny test (most demanding)
requires government to show challenged
classification serves compelling state
interest and that the classification is
necessary to serve the interest
(race, national origin, religion, alienage,
denial of right to vote, interstate migration,
access to court)
2.) intermediate or middle-tier scrutiny test
serves an important state interest and
classification is at least substantially
related to serving that interest
(gender, illegitimacy)
3.) minimum/ rational basis scrutiny test (most
liberal)
show that challenged classification is
rationally related to serving a legitimate
state interest
(all subjects other than those listed above)
Page 14 of 104
− Tiu vs. CA
− RA 7227- challenged as violative of equal
protection because it granted tax and duty
incentives only to business and residents within
the “secured area” of the Subic Special
Economic Zone and denied them to those who
lived within the Zone but outside such “fenced-
in” territory
− Court held that Constitution does not require
absolute equality among residents.
− The real concern of RA 7227 is to convert the
formerly occupied by US military bases into
economic and industrial areas to encourage
investors
− International School Alliance of Educators vs.
Quisumbing
− the practice of giving higher salary for foreign
hires than Filipinos of equal rank- declared
unconstitutional
− Court argued: “equal pay for equal work,”
required that persons who work with
substantially equal qualifications, skill, effort and −
responsibility should be paid similar salaries.
− Abakada Guru vs. Purisima
− RA 9335, the Attrition Act of 1995
− BIR and BOC were authorized to give awards to
those who surpass the revenue collection
targets and to impose sanction on those who fall
short
− the rational for the classification was that BIR
and BOC personnel were involved in revenue
collection, hence, incentives should be given to
them
− British American Tobacco vs Camacho
− Lucky Strike Filter, Lucky Strike Lights and Lucky
Strike Menthol Lights were introduced in the
market in 2001 and validated by BIR survey in
2003, were found to have retail prices lower than
Marlboro and Philip Morris; however, since they
were newly introduced brands, they were taxed
based on their current retail prices and fell under
the premium-priced tax bracket with a higher
excise tax
− Court said that the method of classification was
the only way of establishing a disparate tax
treatment of old brands and petitioner's newly
introduced brands. The classification is
significant because a declaration of
unconstitutionality would entail nullifying the
whole mechanism of the law
− Sison, Jr. vs. Ancheta
− Court explained the applicable standard inn
deciding equal protection and uniformity of
taxation challenges:
− to demonstrate that the governmental act
assailed was prompted by spirit of hostility or
discrimination that finds no support in reason.
− Classification, if rational in character, is
allowable
− Lutz vs Araneta Justice JBL Reyes- It is inherent
in the power to tax that a state be free to select
the subjects of taxation; 'inequalities which
result from a singling out of one particular class
for taxation, or exemption infringe no
constitutional limitation
− Requirement of uniformity is met when the tax
“operates with the same force and effect in
every place where the subject may be found.”
− The taxing power has the authority to
make reasonable and natural classification
for purposes of taxation.
Justice Tuason where the differentiation
complained of conforms to the practical dictates
of justice and equity it is not discriminatory
within the meaning of this clause and is
therefore uniform
− Central Bank Employees vs. Bangko Sentral
− Court applied Cayat's quadruple test:
classification must not apply not to present
conditions only
− Court held that a law valid at one time may be
rendered invalid by subsequent developments.
− With the passage of subsequent laws amending
the charter of 7 other governmental financial
institutions removing limitations on employees,
the continued operation of limitation on CB
employees under Sec. 15 c, Art. II of CB Law has
become invidious discrimination on the 2994
rank-and-file employees of BSP
− relative unconstitutionality
8. Alienage as basis of classification
− Smith, Bell and Co. vs. Natividad
− leading case before Commonwealth
− constitutionality of the exclusion of non-Filipinos
and non-Americans from coastwise trade
− “guaranties extended by the Congress of the US
to the Philippine Islands have been used in the
same sense as like provisions found in the US
Page 15 of 104
 constitution.
− None of the provisions of the Philippine Organic
Law could have had the effect of denying to the
Government of the Philippine Islands, through its
Legislature, the right to exercise that most
essential, insistent and illimitable of powers, the
sovereign police power, in the promotion of the
general welfare and public interest.
− Boats owned by foreigners might traverse the
waters of the Philippines for ages without doing
any particular harm but some evil-minded
foreigner might very easily take advantage of
such lavish hospitality to chart Philippine waters,
to obtain valuable information for unfriendly
powers to stir up insurrection or to prejudice
Filipino or American commerce.
− Common carriers which in the Philippines as in
the US and other countries are (Lord Hale)
“affected with public interest,” can only be
permitted to use these public waters as a
privilege and under such conditions
− while the apparent purpose of the Legislature to
enact anti-alien shipping act BUT its purpose is
to encourage Philippine shipbuilding
− challenged law did not belong to that vicious
species of class legislation which must always be
condemned
− Kwong Sing vs. City of Manila
− an ordinance requiring that receipts be issued in
English and Spanish
− Yick Wo vs. Hopkins- background
− Court held that the ordinance was not invalid for
being unduly discriminatory even the rights of
the plaintiffs were “not less because they be
Chinese aliens.”
− The ordinance was applied to all without
distinction
− could satisfy today's strict scrutiny
− A statute prohibiting anyone engaged in
commerce from keeping “its account books −
in any language other than English,
Spanish or any local dialect
− Yu Cong Eng vs. Trinidad
− Justice Malcolm: tried to save the law by −
interpreting it as applicable only to “sales books
and other records and returns required for
taxation purposes by regulations of BIR.
− Justice Street and Justice Johns:
− invalidated the statute as discriminatory
− Li Seng Giap and Co. vs. Director of Lands
− law prohibiting aliens from acquiring certain
public lands
− Court rejected; appealed to the right of the state
to the integrity of its territory and the exclusive
and peaceable possession of its dominions.
− It deals with the enforcement of the first organic
law and those of Jones Law (sec. 9), to the effect
that lands of public domain should not be
disposed of or alienated to persons who are not
inhabitants or citizens of the Philippine Islands
− Civil rights- aliens have equal footing with those
of citizens
− political rights- do not enjoy the same protection
− Rubi vs. Provincial Board of Mindoro
− restrictive measures imposed upon non-
Christians (descriptive of their state of cultural
advancement and not religious designation) for
their benefit were upheld as non-discriminatory
− Equal protection cases involving nationalization
measures passed by Congress or by local law-
making bodies
− 2 approaches: 1.) to test the reasonableness of
the classification and the uniformity of its
application
− 2.) to apply one or other of the Filipinization
provisions of the 1935 Constitution
RA 1180, Retail Trade Nationalization Law – most
economically far-reaching nationalization statute
passed; prohibited aliens from engaging in the retail
trade
− Ichong vs. Hernandez
− The characteristics of the exercise of retail trade
by aliens (actual and real) furnish sufficient
grounds for legislative classification of retail
traders into nationals and aliens.
The questioned law is deemed absolutely
necessary to bring about the desired legislative
intent such as to free the national economy from
alien control and dominance.
The court quoted the resolution passed by
Constitutional Convention leaving the subject of
nationalization of retail to the discretion of
Congress
− King vs. Hernandez
− whether the prohibition (under Anti-Dummy Law
<reinforcement of NRNL>) of the employment of
aliens in control and non-control positions in a
retail establishment or trade was
Page 16 of 104
 unconstitutional
− Court held: The nationalization of an economic
measure when founded on grounds of public
policy cannot be branded as unjust, arbitrary,
oppressive or contrary to Constitution because −
its aim is merely to further the material progress
and welfare of the citizens of a country.
− Meyer vs. Nebraska
− guaranteed the right to engage in the common
occupations of life
− Court justified the act by quoting from Ichong in
view of the monopolistic control exercised by −
aliens in the retail business and their deadly −
stranglehold on the national economy
endangering the national security of crisis.
− Co Chiong vs Cuaderno and Co Chiong vs Mayor
of Manila
− first opportunity of the court to use the
nationalization provision in art. XIV, sec. 8
(1935).
− involved respectively a statute and an ordinance
terminating the occupancy of public stalls by
Chinese nationals.
− The court declared the measure constitutional
while asserting the principle used in Li Seng Giap
vs. Director of Lands.
− Public markets are public services or utilities, the
operation of which is reserved by the
Constitution to Filipinos or corporations 60 per
centum owned by Filipinos.
− Villegas vs. Hiu Chiong
− invalidated on equal protection grounds a Manila
ordinance imposing a uniform license fee of 50
pesos on all aliens as precondition for accepting −
employment.
− It teaches that a law can offend against equal −
protection when it classifies and also when it −
fails to classify.
− The uniform fee was unlawful because it fails to
consider valid substantial difference in situation
among individual aliens who are required to pay.
9. Equal protection and laws of local
application
EPC does not require territorial uniformity of laws.
(Zoning ordinances- e.g. Of how constitution allows
different treatment of different places)
− People vs. Vera
− Act No. 2221, Probation Act- empowered
Provincial Boards to appropriate salaries of
probation officers for the maintenance of the
probation system in their respective provinces.
SC said that such delegation of legislative power
to the local law making bodies could result in
gross inequalities among provinces and will
permit denial of equal protection.
− Is distinguishable from other cases since
Probation Act was not a law of local application
but intended for the entire nation.
Ocampo vs US
Court pointed that the system approved was one
which preserved substantial uniformity:
preliminary investigation required by General
Order no. 58 for territories outside Manila had its
equivalent, for Manila, in the prescribed
investigation conducted by the prosecuting
attorney.
− Punzalan vs. Municipal Board of Manila
− Court rejected the contention that the power
given to Manila to impose an occupation tax was
invalid because the same power was not enjoyed
by other municipal corporations.
− Tibon vs Auditor Generality
− not all local police and fire department officers
uniformly enjoyed the right to compensation for
death in line of duty was not considered
discriminatory.
− Ermita-Malate Hotel and Motel Operators, Inc.
vs. Mayor of Manila
− regulatory disadvantages imposed on hotels and
motels in Manila were upheld in the face of the
challenge that hotels and motels outside Manila
did not suffer the same disadvantages.
Local laws themselves must also equally apply to
all those coming within their jurisdiction.
Viray vs. City of Caloocan
SC invalidated as discriminatory against private
cemeteries a city ordinance which imposed a
burial fee solely on cadavers coming from places
outside the territory of Caloocan for private
cemeteries within the city.
Page 17 of 104
 10.Adjustments resulting from war
− The handling of a large number of political
prisoners necessitated some change in
existing procedural law.
− Laurel vs. Misa
− answered the challenge to Commonwealth Act
No. 682 which extended the period for filing an
information beyond the limit prescribed in Art.
125 of RPC.
− “There were 600 [political prisoners] in round
numbers. The problem was momentous and
urgent. Criminal information against all, or a
majority or even a substantial number could not
be properly filed within the 6 hour period.”
− The handling of tax delinquency after the
war necessitated adjustment.
− Juan Luna Subdivision, Inc. vs. Sarmiento
− Commonwealth Act No. 703, remitted taxes that
were due and payable for the last semester of
1941, was challenged as discriminatory against
those who had already paid.
− Court said that: The property owners who had
paid their taxes before liberation and those who
had not were not on the same on the same
footing on the need of material relief. The taxes
paid during the occupation had been satisfied in
Japanese military notes, that were well-nigh
worthless. To refund those taxes with restored
currency would be unduly to enrich many of the
payers at a greater expense to the people at
large. And that the process of refunding would
entail a tremendous amount of work and
difficulties.
11.Equal protection and the political
process
− Philippine Constitutional Association vs. Jimenez
− involved a politically scandalous legislation: “An
Act Amending Subsection C, Section Twelve of
Commonwealth Act No. 186 as Amended by RA
1396.
− the amendatory paragraph provided for
retirement benefits for Senators and Members of
the House of Representatives.
− Seems to make an unwarranted denial of the
possibility of grouping members of Congress as a
class and considering them worthy of treatment
different from that given to other elective
officials or other members of the government
system.
− The censurable inequalities created by law:
1. retirement benefits given to members of
Congress were not given to other elective
officials
2. members of the Congress could be entitled to
retirement benefits after serving 12 years while
other officers of the government would wait at
least 20 years
3. all other government officers could only earn
one retirement benefit irrespective of length of
service while members of Congress could be
entitled to retirement benefits after 20 years of
service
4. most grantees of retirement benefits had to
be members of GSIS or at least contribute a
portion of their monthly salaries while member
of the Congress were not and did not have to be
members of the system
− Martinez vs. Morfe
− invalidated Art. 145 of RPC which gave immunity
to legislators for certain criminal offenses for it
would amount to the creation of a privileged
class without justification in reason.
− Nullified by 1973 and 1987 Constitution
12.Equal protection and land reform
− J.M. Tuason & Co. vs Land Tenure Administration
− singling out of the property of the petitioners for
expropriation would violate equal protection
clause
− To compel the government to take “all or none”
would be practically to strip the government of
the power of eminent domain.
13.Equality in the criminal process
− Article III Sec 1 ordains 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.
− Himagan v People
− Court allowed different treatment for accused
police officers .
− Suspension of police man can continue beyond
90 days until the case is terminated
− Policemen carry weapons and the badge of law
which can be used to harass or intimidate
witnesses against them.
Page 18 of 104

14.Equal protection and women, etc.
− Reed v Reed
− invalidated the Idaho Probate Code provision
giving mandatory preference to men over
women when members of the same entitlement
class apply for appointment as the administrator
of an estate.
Miscellany on Equal Protection
• Many appeals made to the equal protection
clause may be classes as appeals to the “usual
last refuge of the constitutional arguments.
• The court’s task has simply been to point out
either the obvious reasonableness of the
challenges classification or the uniform
applicability of a particular restraint to all of a
class.
• Rafael vs. Embroidery and Apparel Control
Board
o Petitioner, member of the Philippine
Embroidery and Apparel Producers, Inc.
(PCEAP) objected to the provisions of RA 3137
which prescribed that representative of the
private sector shall be chosen from the
Philippine Association of Embroidery and
Apparel Exporters Inc. Petitioners considered
this discriminatory against PCEAP. The court
answered:
 Argument is without merit PAEA was not
singled out by the law in order to favor it over
and above others but rather because it is the
dominant organization in the field. Non
membership in the PAEAE does not mean that
the benefits granted and the restrictions
imposed by the act shall not apply to those
who choose to venture into the business
independently.
• In Vera vs. Cuevas an unequal application of the
requirement of warning markers on infant feed
was proscribed while in Taxicab Operators vs.
Board of Transportation, special regulations
imposed on taxicabs as distinct from other
modes of public transportation was upheld.
The Future of Equal Protection
• Does the equal protection clause merely prohibit
the state from institutionalizing inequality or
does it command the state to take positive
measures to eradicate inequalities that have
arisen not necessarily through state action?
o The equal protection clause in the constitution
is a legacy from “a nation which depends so
greatly on initiative and achievement in the
private sector to determine the distribution of
most society’s goods”, and which consequently
has not recognized in the state a
constitutionally imposed “duty to raise
everyone to a minimum acceptable standard of
living.”
• RP Constitutional law, however, does not have to
take its cue from American developments in law
before it can take bolder strides towards
equalization.
• Equality is one ideal which cries out for bold
attention in the Constitution.
• Preamble proclaims “equality” as an ideal
precisely in protest against crushing inequalities
in the Philippine society.
• The Philippine Constitution does not lack
doctrinal support for a more vigorous state effort
towards achieving a reasonable measure of
equality.
• Equality is not an ideal which can be achieved by
doctrinal fiat alone. The practical problems
surmounting the monumental obstacles that
stand in the way towards approximating the
ideal remain as one of the most daring
challenges to any government administration.
Section 2: The right of the people to be secure
in their persons, houses, papers, and effects
against unreasonable searches and seizures of
whatever nature and for any purpose shall be
inviolable and no search warrant or warrant of
arrest shall issue except on probable cause to
be determined by the judge after examination
under oath or affirmation of the complaint and
the witness he may produce, and particularly
describing the place to be searched and the
persons or things to be seized.
Purpose of the provision
• Protection against unreasonable searches and
seizures as what was clearly set out in an early
decision of the SC:
o The privacy of the home is one of the most
fundamental of all individual rights declared
and recognized in the political codes of civilized
nations. No one can enter into the home of
another without the consent of its owners or
occupants.
o The privacy of the home… has always been
regarded by civilized nations as one of the
most sacred personal rights to which men are
entitled.
o A man’s home is his castle.
• This guarantee prevents a person from being
irreversibly “cut off from that domestic security
which renders the lives of the most unhappy in
some measure agreeable.”
• Section 2 is not a circumscription of the power of
the state over a person’s home and possessions.
More important, it protects the privacy and
Page 19 of 104
 sanctity of the person himself. It is a guarantee
of the right of the people to be secure in their
“persons”… against unreasonable searches and
seizures. It is therefore also a guarantee against
unlawful arrests and other forms of restraint on
the physical liberty of the person.
• Only a prohibition against unreasonable
searches and seizures.
• General rule- searches and seizures are
unreasonable unless authorized by a validly
issued search warrant or warrant of arrest.
• The fundamental protection given by the search
and seizure clause is that between person and
police must stand the protective authority of a
magistrate clothed with power to issue or refuse
to issue search warrants or warrants of arrest.
• Cases on unreasonable search and seizures:
o Valmonte vs. Villa
 There is as yet no case for the application of
the constitutional rule when what are involved
are routine checks consisting of a “brief
question or two. For as long as the vehicle is
neither searched nor its occupants subjected
to a body search. And the inspection of the
vehicle is limited to a visual search, said
routine checks cannot be regarded as
violative of an individual’s right against
unreasonable searches and seizures.
o People vs. Escano
 Elaborated it further in dealing with
checkpoints when a gun ban has been
imposed by COMELEC
 Those which are warranted by exigencies of
public order and are conducted in a way least
intrusive to motorists are allowed. For
admittedly, routine checkpoints do intrude, to
a certain extent, on motorists rights to ‘free
passage without interruption,” but it cannot
be denied that as a rule it involves only a brief
detention of travelers during which the
vehicles occupants are required to answer a
brief question or two. For as long as vehicles
is neither searched nor its occupants
subjected to a body search and the inspection
of the vehicle is limited to a visual search,
said routine checks cannot be violative of an
individual’s right against unreasonable
searches and seizures.
Probable Cause
o Is a primary requirement for the issuance of a
warrant and its existence is also one of the
requirements for the narrowly drawn instances
when search or seizure may be made without a
warrant.
o What is probable cause:
 In dealing with probable cause… we deal with
possibilities. These are not technical; they are
the factual and practical considerations of
everyday life on which reasonable and
prudent men, not legal technicians act.
 Probability, not absolute or moral certainty.
o Defined generally
 as such reasons supported by facts and
circumstances as will warrant a cautious man
in the belief that his action and the means
taken in prosecuting it are legally just and
proper.
 It is such facts and circumstances antecedent
to the issuance of a warrant, that are in
themselves sufficient to induce a cautious
man to rely upon them and act in pursuance
thereof.
o Specifically
 Probable cause must be defined in relation to
the action which it justifies.
• Probable cause for an arrest or for the
issuance of a warrant of arrest would mean
such facts and circumstances which would
lead a reasonably discreet and prudent man
to believe that an offense has been
committed by the person sought to be
arrested.
• Probable cause for a search would mean
such facts and circumstances which would
lead a reasonably discreet and prudent man
to believe that an offense has been
committed and that the objects sought in
connection with the offense are in the place
sought to be searched.
• Unlike proof of probable cause for a warrant of
arrest, probable cause for a search warrant need
not point to a specific offender.
o In either case, it should be emphasized that
what is required is not proof beyond reasonable
doubt but merely probable cause. “Evidence
required to establish guilt is not necessary.”
• Sufficient evidence differs from case to case
depending on the nature of the search.
• Requirements for issuance of warrants (found in
rules of court)
o That a judge issue a warrant of arrest if he
finds after an examination in writing and under
oath if the complaint and his witness in the
form of searching questions and answers, that
a probable cause exists.
• Cases on probable cause:
o Betoy vs, Judge
 To establish probable cause of illegal
possession of firearms the witness must have
personal knowledge of the existence of the
Page 20 of 104
 firearms and the absence of license of such
firearms.
o Sony Music vs Judge Español
 To prevent stealthy encroachment upon, or
gradual depreciation of the right of privacy, a
liberal construction in search and seizure
cases is given in favor of the individual.
 Hence, there is no presumption of regularity
of searches.
o Columbia Pictures vs. CA
 In an application for a search warrant for
contraband videotapes the presentation of
the master tapes of copyrighted films from Determination of Probable Cause
which copies has been made is essential but
only if there is doubt about the true nexus
between the master tape and the copies.
o Stonehill vs. Diokno
 Court said: Existence of a probable cause
presupposes the introduction of competent
proof that the party against whom it is sought
has performed particular acts, or committed
specific omissions violating a given provision
of criminal law.
 The court, in invalidating the warrant issued,
said that the description of the offense simply
as “violation of central bank laws, tariff and
Customs Laws, Internal Revenue Code and
Revised Penal Code, made it impossible for
the judges who issued the warrants to have
found existence of probable cause.”
• Probable cause of something specific
• ~The court stressed the seriousness of the
irregularity by pointing to the amended
provision of the Rules of Court which now
says that “a search warrant shall not issue
but upon probable cause in connection with
one specific offense” and “that no search
warrant shall issue for more than one
specific offense”. [section 3 of rule 126]—
passed post the issuance of stonehill
warrants.
o Central Bank vs, Judge Morfe
 Failure to show probable cause was raised by
a respondent savings and loan association.
 The association was not authorized to accept
deposit of funds from the public nor to engage
in the banking business nor to perform any
banking activity or function.
 After observing activities, member of Central
Bank filed an application for a search warrant
alleging that the organization was engaging in
unauthorized banking activity without
complying with RA 337
 Sufficiency was challenged on the ground that
there was no showing of personal knowledge
“specific illegal transactions” with identical
parties.
 Court said:
• the failure of the witness to mention
particular individuals did not necessarily
prove that he had no personal knowledge of
specific illegal transaction… even if the
names were unknown to him.
• The interest of the law in regulating this
particular type of operation was not
necessarily to protect a specific victim but to
protect the public against actual as well as
potential injury.
• to be determined by the judge after examination
under oath or affirmation of the complaint and
the witness he may produce.
• Who may determine probable cause?
o 1935 Constitution:
 Probable cause can only be determined by a
judge and no other officer.
• Qua Chee Gan vs. Deportation board called
attention to this rule which is a departure
from 4th Amendment.
o ~probable cause however for the purpose
of filing an information is determined by
the prosecuting officer.
• The court noted: Under the express term of
our constitution, it is, therefore doubtful
whether the arrest of an individual may be
ordered by any authority other than the
judge if the purpose is merely to determine
the existence of probable cause, leading to
an administrative investigation. The
Constitution does not distinguish between
warrants in a criminal case and
administrative proceedings.
• It is however different if the order of arrest is
issued to carry out a final finding of a
violation, either by an executive or
legislative officer or agency duly authorized
for the purpose, as then the warrant is not
that mentioned in the Constitution which is
issuable only on probable cause.
• Cases on judges determining probable
cause:
o Collector of Customs vs. Villaluz
 Court ruled that since the Constitution
has conferred upon them the power to
determine probable cause for the
purpose of issuing warrants, necessarily,
they also have the power to conduct
preliminary examination even if statues
are silent on such power.
 ~does not include the power to conduct
preliminary investigation~
Page 21 of 104
 o Solid Triangle Sales vs. Sheriff
 Inherent in the court’s power to issue
search warrants is the power to quash
warrants already issued.
 The motion to quash should be filed in
the court that issued the warrant unless
a criminal case has already been
instituted in another court. In this case,
the motion should be filed with the
latter.
• Since Qua Chee Gan, in an undeviating line
of cases, the SC has held that the
Commissioner of Immigration, an executive
officer, cannot issue warrants of arrest in aid
merely of his investigatory power.
o 1973 Constitution
 Probable cause could be determined also by
“such other responsible officer as may be
authorized by law
 The Constitution also authorized the
legislative authority to designate other
“responsible officers” to perform the same
function.
 November 27, 1972- Delegate Suarez moved
for its deletion arguing that the determination
was essentially a judicial function. Convention
supported him but reversed itself hours later
on the motion of Delegate Dauvit.
 Difficult to support Suarez claim,
jurisprudence showing the contrary:
• Ocampo vs. US
o The function of determining whether
probable cause exists for the arrest of a
person accused is only quasi-judicial and
not such that, because of its nature, it
must necessarily be confided to a strictly
judicial officer or tribunal.
• Shadwick vs. City of Tampa
o US court upheld the validity of a warrant
issued by a municipal clerk who was not
even a lawyer.
 Who are these officers who may be
authorized by law to issue warrants? –
Delegate De La Serna
• The provision contemplated the situation
where the law may authorize fiscals to issue
search warrants or warrants of arrest. o 1987 Constitution
 Intent of the provision was to make it possible
for legislature to authorize prosecution or law
enforcement officers to issue search warrants
or warrants of arrest.
 Could any of the responsible officer then
authorized to determine probable cause?
• According to American rule- that the
estimate of a probable cause must be made Personal Examination of Witness
upon a “detached scrutiny of a neutral
magistrate” and not by a policeman or
government enforcement agent.
• Shadwick vs. Tampa
o The term magistrate and judicial officer
have been used interchangeably.
o An issuing magistrate must meet two tests:
he must be neutral and detached and he
must be capable of determining whether
probable cause exists for the requested
arrest of search.
o What we do reject today is any per se
invalidation of a state or local warrant
system on the ground that the issuing
magistrate is not a lawyer or judge.
Community may have sound reasons for
delegating the responsibility of issuing
warrants to competent personnel other
than judges or lawyers. Many municipal
courts face stiff and unrelenting case
loads. Thus, states are entitled to some
flexibility and leeway in their designation of
magistrates, so long as all are neutral and
detached and capable of the probable
cause determination required of them.
 This rule of US jurisprudence is a requirement
of due process. Due process is basically a rule
on fair play and fair play demands an arbiter
of humans rights be both competent and
impartial. Due process, as a rule of fair play is
also a basic principle in RP Constitutional Law.
Thus, the term responsible officer in the 1973
search and seizure clause should have been
given a meaning that did not do violence to
due process.
 On June 18, 1976, the Court still say that no
law had as yet been passed authorizing an
executive officer to issue warrants.
Thereafter, however, a number of
administrative boards were given such
authority.
 Moreover, in People vs. Villanueva Justice
Aquino made the assertion that a fiscal is a
responsible officer authorized by law. This,
however, was decided in division and the
assertion carried the concurrence of only two
other Justices. It is not an established
doctrine.
 Returned to the 1935 rule that warrants may
be issued only by judges.
 However, the Commissioner of Immigration
may order the arrest of an alien in order to
carry out a deportation order that has already
become final.
Page 22 of 104
• The determination of probable cause must be
made only “after examination under oath or
affirmation of the complainant and the witnesses
he may produce.” And the warrant must contain
particularity of description.
• Section 3 of Jones Law- No warrant shall be
issued but upon probable cause, supported by
oath or affirmation and particularly describing
the place to be searched and the person to be
arrested.
o Supplemented by GO 58, section 98:
• Thus it was considered an irregularity for the
judge to issue a search warrant without first
examining the complaint or any witnesses under
oath.
• Upon adoption of 1935 Constitution Section 98 of
GO 58 became an organic law. Constitutional
provision read:
o No warrant shall be issued but upon probable
cause, to be determined by the judge after
examination under oath pr affirmation of the
complainant and witnesses he may produce.
• Cases on personal examination of witnesses:
o Alvarez vs. CFI
 Settled the import of the 1935 provision
 Government agent applying for a search
warrant admitted under oath that he had no
knowledge of the facts which were to serve as
a basis for the issuance of the warrant but he
had knowledge of them through mere
information secured from a person he
considered reliable.
 Court said:
• The oath requires must refer to the truth of
the facts within the personal knowledge of
the petitioner or his witnesses, because the
purpose thereof is to convince the
committing magistrate, not the individual
making the affidavit and seeking the
issuance of the warrant, of the existence of
probable cause.
• Test of sufficiency: whether it has been
drawn in such a manner that perjury could
be charged thereon and affiant be held
liable for damages caused.
o Bache and Co vs. Ruiz
 deputy clerk took the deposition of the
complainant and his witnesses, after which
the stenographic notes of the deposition were
read to the judge in the presence of the
complaint and his witness. The judge inquired
about the correctness of what was read with a
few words of warning against the commission
of perjury. Thereafter, judge issued warrant.
 SC declared that warrant was invalidly issued:
• This cannot be considered personal
examination. The reading of the
stenographic notes to respondent judge did
not constitute sufficient compliance with the
constitutional mandate and the rule; for by
that manner respondent judge did not have
the opportunity to observe the demeanor of
the complainant and his witness and to
propound initial and follow up questions
which the judicial mind, on account of its
training, was in the best position to
conceive.
o Roan vs. Gonzales
 Mere affidavits of the complainant and his
witnesses are not sufficient. The examining
judge was to take depositions on writing of
the complainant and the witnesses he may
produce and attach them to the record.
o Soliven vs. Judge Makaisar
 The addition of the word personally after the
word determined has apparently convinced
Beltran that the [1973] Constitution now
requires the judge to personally examine the
complainant and his witnesses in his
determination of probable cause for the
issuance of warrant s of arrest. This is not an
accurate interpretation.
 What the Constitution underscores is the
exclusive and personal responsibility of the
issuing judge to satisfy himself of the
existence of probable cause.
 Following established doctrine and procedure,
he shall:
• Personally evaluate the report and the
supporting documents submitted by the
fiscal regarding the existence of probable
cause on the basis thereof issue a warrant of
arrest
• If on the basis thereof he finds no probable
cause, he may disregard the fiscal’s report
and require the submission of supporting
affidavits of witnesses to aid him in arriving
at a conclusion as to the existence of
probable cause.
 Pendon vs. CA
Page 23 of 104
 • The requirement mandated by the law and
the rules that the judge must personally
examine the applicant and his witnesses in
the form of searching questions and answers
before issuing the warrant was not
sufficiently complied with.
o This means that depending on the
circumstances of the case, the judge may
or may not rely on fiscal’s evaluation.
o Lim Sr vs. Judge Felix
 Reiterate the ruling in Soliven vs. Makaisar
that judge does not have to personally
examine the complainant and his witnesses.
 The prosecutor can perform the same
functions as a commissioner in taking the
evidence. However, there should be a repot
and necessary documents supporting a
fiscal’s bare certification. All these should be
before the judge.
 The extent of a judge’s personal examination
depends on the circumstances of each case.
The judge has to exercise sound discretion
because after all, the personal determination
is vested in the Judge by the Constitution.
 To be sure, the judge must go beyond the
Prosecutor’s certification and investigation
report whenever necessary. He should call for
the complainant and witnesses themselves to
answer the court’s probing questions when
the circumstances of the case so warrants.
• The court thereby returned to the 1935 rule in
Alvarez which said that neither the Constitution
and GOs 48 provides that it is of imperative
necessity to take the depositions of witnesses to
be presented by the applicant or complainant I
addition to the affidavit of the latter.
• The purpose of requiring the presentation of
depositions is to satisfy the committing
magistrate of the existence of probable cause.
• Notwithstanding Soliven case, subsequent
decisions still cite Section 4 of Rule 126 of the
New Rules on Criminal Procedure:
o The judge must before issuing the warrant
personally examine in the form of searching
questions and answers in writing and under
oath the complainant and the witnesses he
may produce on the facts personally known to
them and attach to the record their sworn
statements together with any affidavits
submitted.
• IT IS CLEAR that a judge is not required to
personally examined the complainant and his
witnesses and to await the submission of counter
affidavits from the accused.
• The judge shall:
o Personally evaluate the report and the
supporting documents submitted by the
prosecutor regarding the evidence of probable
cause, and on the basis thereof, make a
personal determination of a probable cause.
o If he is not satisfied that probable cause exists,
he may disregard the prosecutor’s report and
require the submission of supporting affidavits
of witnesses to aid him in arriving at a
conclusion as to the existence of probable
cause.
Particularity of Description
• Whatever is not included in the description may
not be seized.
• Cases on the requirement of Particularity of
description.
o Uy Khyetin vs, Villareal
 The evident purpose and intent of this
requirement is to limit the things to be seized
to those and only those particularly described
In the search warrant – to leave the officers of
the law with no discretion regarding what
articles they shall seize, to the end that
unreasonable searches and seizures may not
be made, -- that abuses may not be
committed…
o Bache and Co vs. Ruiz
 A search warrant may be said to particularly
describe the things to be seized when the
description therein is as specific as the
circumstances will ordinarily allow… or when
the description expresses a conclusion of fact
– not of law – by which the warrant officer be
guided in making the search and seizure…; or
when the things described are limited to
those which bear direct relation to the offense
for which the warrant is being issued….
o People vs. Veloso
 Pre-Commonwealth and early post-
Commonwealth period
 The legality of a John Doe warrant of arrest
was questioned.
Page 24 of 104
  Court upheld its validity examining the
warrant as a whole.
 While person to be seized was John Doe, the
place occupied by him was identified as “the
building numbered 124 Calle Arzobispo, City
of Manila, Philippine Islands:
• The description must be sufficient to
indicate clearly the proper person upon
whom the warrant is to be served. … the
police could identify John Doe as Jose Maria
Veloso
 There is a limit to john doe warrants. Thus
warrant for arrest of 50 John Does is a general
warrant and does not satisfy requirement.
o People vs. Rubio
 With reference to property, court said that the
description is required to be specific only so
far as the circumstances will ordinarily allow
and where by nature of the goods to be
seized, their description must be rather
general, it is not required that a technical
description be given, as this would mean that
no warrant could issue.
 Thus, the description of fraudulent books,
invoices and records was found sufficient.
o Alvarez vs. CFI
 The description of books, documents,
receipts, lists, chits and other papers used by
him in connection with his activities as
money-lender, charging usurious rate of
interest in violation of the law is also
sufficient.
 Court said: the description so made
substantially complies with the legal provision
because the officer of the law who executed
the warrant was thereby placed in a position
enabling him to identify the articles which he
did.
→ From the cases above, the court has taken
broad view of what particularity of
description means and this should be given a
liberal construction or a strict construction in
favor of the individual.
o Stonehill vs. Diokno
 court set the limit to permissible generality.
 Warrant simply said:
• Books of accounts, financial records,
vouchers, journals, correspondence,
receipts… etc.
 the warrants authorized the search for the
seizure of records pertaining to all businesses
transactions of petitioners herein, regardless,
of whether the transactions were legal or
illegal. The warrants sanctioned the seizure of
all records of the petitioners and the
aforementioned corporations, whatever their
nature, this openly contravening with the
explicit command of the bill of rights – that
the things to be seized be particularly
described – as well as tending to defeat its
major objective : the elimination of general
warrants.
o Columbia Pictures vs. Flores
 Similarly, these description is insufficient:
• Television sets, video cassette recorders,
rewinders, tape head cleaners, etc…
→ The items mentioned may be found in
legitimate business shops.
• The sufficiency of the description of the object of
the search is closely related with the sufficient
particularity of the averments of the offense.
• The possibility of properly identifying the object
of the search may depend on the proper
identification of the offense committed.
o Central Bank vs. Judge Morfe
 The failure of the witness to identify the
names of the parties to the transaction was
raised as proof of failure to prove probable
cause and hence as evidence of the
impossibility of properly identifying the
corporate papers which were the object of the
search.
 It was guaranteed that the warrant containing
merely an itemized list of the type of books
whose seizure was desired, amounted to a
roving commission.
 The books it argued should have been
identified according to specific transactions
with named persons.
 Court rejected argument. The Central Bank in
this case petitioned for a search warrant in its
capacity as the state administrative superior
of the operation of banks. If the court had
barred access to the records of the mutual
savings and loans association by asking for an
unreasonable degree of particularity in the
description of the books whose inspection was
desired. It would have unduly paralyzed the
regulatory power of the central bank.
Page 25 of 104
 • It is not enough that the object be sufficiently
described. It is necessary besides that the
warrant be applied to what is described.
o People vs. CA
 Warrant indicated:
• “Abigail variety store, apt. 1207. Area-F,
Bagong Buhay Avenue, Sapanag Paly, San
Jose del Monte Bulacan”
 It was illegitimate to apply it to a unit at the
rear of and immediately next to what is
described.
 It is neither fair nor licit to allow police officers
to search a place different from that stated on
the claim that the place actually searched
although not that specified in the warrant.
 What is material in determining the validity of
the search is the place stated in the warrant
itself, not what the applicants had in their
thought or had represented in the proofs they
submitted to the court issuing the warrant.
Searches and Seizures of whatever nature and
for any purpose
• The new phrase has effectively extended the
search and seizure clause to at least two
penumbral areas: (not explicitly supported in
convention discussions)
• First Penumbral area- Subpoena duces
tecum or an order for the production of
books and papers. Rule 27 of Rules of Court
(RoC) says:
o Upon motion of any of the party showing good
cause therefore and upon notice to all other
parties, the court in which an action is pending
may: (1) order any party to produce and permit
the inspection and copying or photographing,
by or on behalf of the moving party, of any
designated documents, papers, books,
accounts, letters, photographs, objects or
tangible things not privileged which constitute
or contain evidence material to any matter
involved in the action and which are in his
possession, custody or control…
• Cases about Rule 27 of RoC
o Material Distributors (Phil) Inc vs,
Judge Natividad
 Under Rule 27 of RoC Natividad granted
motion for production and inspection among
others of books, papers, letters, etc.
 Against such order, three constitutional
issues were raised:
• Self incrimination
• Unreasonable search and seizure
• Violation of the privacy of communication
 Court dismissed issue of self-incrimination:
We have considered carefully the reasons
advanced by petitioners… and found nothing in
them to show, how with the inspection of
annexes A and B of the complaints, the
petitioners may incriminate themselves.
 Violation of search and seizure, court held:
the orders in question pertain to civil procedure
that cannot be identified or confused with
unreasonable searches prohibited by the
Constitution.
o Pantranco vs Judge Legaspi
 rule 27 permits ‘fishing ‘ for evidence.
 Reiterated in Caltex Inc. vs. Caltex Dealers
Association, where the court said:
• Fishing for evidence is not prohibited but
allowed under the present RoC on discovery
and deposition for the reason that it enables
litigants adequately to prepare their pleadings
and for trial, this, in turn, resulting often in the
simplification or reduction of triable issues.
• When it is realized that the power of the SC
to issue rules of procedure is subject to
specific constitutional limitation that they shall
not diminish substantive rights; it becomes
clear that the application of rule 27 must
follow constitutional principles on search and
seizure.
• Language of Rule 27 satisfies what the
search and seizure clause demands as a minimum
requirement. Probable cause is the minimum
requirement of the search and seizure clause.
• 1948 american case putting analogy on
search and seizures;
o It is not necessary that in a case of a warrant,
that a specific charge or complaint or violation of
law be pending or that the order be made
pursuant to one. It is enough that the
investigation be for a lawfully authorized purpose,
within the power of the Congress to command.
o The requirement for probable cause
supported by oath pr affirmation… is for a
purpose Congress can order, and the documents
sought are relevant to the inquiry.
Page 26 of 104
 o Also literally applicable warrants comes down
to specification of the documents to be produced
adequate but not excessive for the purposes of
relevant inquiry.
• Second Penumbral Area: yet untouched
by RP jurisprudence, became subject in
Camara vs. Municipal Court
o Case arose out of conviction of the appellant
for refusing entry to a housing inspector, who
unarmed with a search warrant, sough to Waiver of Rights
inspect appellant’s dwelling.
o Sc reversed conviction: We hold that
administrative searches of the kind at issue
here are significant intrusions upon the
th
interests protected by the 4 amendment, that
such searches when authorized and conducted
without a warrant procedure lack the traditional • Section 114 of Rules in Criminal Procedure:
safeguards which the 4th amendment
guaranteed to the individual.
o In arriving at conclusion court was aware that
the only effective way to seek universal
compliance with the minimum standards
required by the municipal codes is through Warrantless Searches and Seizures
routine periodic inspections of all structures.
o For the determination of probable cause, the
court did not require specification of evidence
of violation but allowed the issuing magistrate’s
evaluation to rest upon “the passage of time,
the nature of the building or the condition of
the entire area.
• KMU vs, Director
o Requirement of IDs
o EO 240 standardized IDs in government offices,
was challenged.
o Court said EO sis not establish a national ID (1) Search incidental to arrest
card system injurious to privacy. EO did not
compel all citizens to have an ID card. EO 240
applied only to government entities that under
existing laws were already collecting data and
issuing ID cards as part of their governmental
functions. Hence, it did not require legislation.
• Republic vs. Eugenio
o Bank enquiries raising privacy issues
o Requirements for search warrants were not
imposed by AMLA with respect to bank inquiry
orders. A constitutional warrant requires that
the judge personally examine under oath or
affirmation the complainant and the witnesses
he may produce such examination being in the
form of searching questions and answers.
Those are impositions which the legislative did
not prescribe as to the bank inquiry under the
AMLA.
o Simply put, bank inquiry order is not a search
warrant or a warrant of arrest as it
contemplates a direct object but not a seizure
of persons or property
• Even when a petitioner admits to opening his
bag when police asks to see its contents, it does
not necessarily follow that the action signifies
valid consent.
o May be passive conformity due to coercion or
intimidation
o Application for bail or the admission to bail by
an accused is not a waiver of his right to assail
the warrant issued for his arrest of the
legalities of irregularities thereof.
→ The rule that searches and seizures must be
supported by a valid warrant is not an absolute
rule. Five exceptions:
o The search incidental to arrest
o Search of moving vehicles
o Seizure of evidence in plain view
o Customs searches
o Where there is a waiver of a right
→ rare exception is the rule on exigent
circumstance and stop and frisk rule.
• Purpose of exception:
o Both to protect the arresting officer against
physical harm from the person being arrested
who might be armed with a concealed weapon
and also to prevent the person arrested from
destroying evidence within his reach.
• The exception should not be strained beyond
what is needed in order to serve its purpose.
• Cases on warrantless arrest:
o Moreno vs Ago Chi
 An officer making an arrest may take from the
person arrested any money or property found
upon his person which was used in the
commission of the crime or was the fruit of
the crime or which might furnish the prisoner
Page 27 of 104
 with the means of committing violence or
escaping or which may be used in evidence in
the trial of the cause.
o Chimel vs. California
 Established rule that the scope of allowable
warrantless search is limited to the area
within which the person arrested could reach
for a weapon or reach for evidence to destroy
it.
 Subsequent to this case, US SC disallowed
warrantless search of house following an
arrest on the steps, search of a house
following an arrest twenty feet from the house
and search of a car parked on the driveway
following an arrest in the house.
o Nolasco vs. Paño
 Arrest had been made while Nolasco was
riding jeepney and the search was made in
her house several blocks away from the place
of arrest.
 Reversed ruling that such incident is justified
as search incidental to arrest.
 Justice Teehankee concurred:
• The better and established rule is a strict
application of the exception provided in Rule
126, Sec. 12 and that is to absolutely limit a
warrantless search of a person who is
lawfully arrested to his or her person at the
time of and incident to his or her arrest and
‘to dangerous weapons or anything which
may be used as proof of the commission of
the offense. Such warrantless search
obviously cannot be made in a place other
than the place of arrest.
(2) Search of moving vehicles
• Papa vs. Mago
o Involved the seizure without a warrant of two
trucks coming from the customs zone of the
port of Manila and allegedly loaded with
misdeclared and undervalued imported goods.
In upholding the validity of the search and
seizure without warrant, as authorized by Tariff
and Customs Code, the court, relied solely on
distinction on moving vehicles and stationary
vehicles;
o Cited Carroll vs. US:
 A search of a ship. Motorboat, wagon. Or
automobile for contraband goods, where it not
practicable to secure a warrant, because the
vehicle can be quickly moved out of the
locality or jurisdiction on which the warrant
must be sought.
• Carroll rule arose out of a portion of the
Volstead act providing for warrantless
searches of a moving automobile on the
open road “ where it is not practicable to
secure a warrant because the vehicle can be
quickly moved our of the locality or
jurisdiction in which the warrant must be
sought.
• It is thus founded on an exigent
circumstance which demanded immediate
action.
• Carroll does not dispense with it the
requirement of probable cause.
o Involved the enforcement of custom laws which
is also an exception for warrants.
o “Travelers may be stopped in crossing an
international boundary because of national self
protection reasonably requiring one entering
the country to identify himself as entitled to
come in, and in his belongings as effects which
may be lawfully brought in.—Carroll case
o The doctrine in papa cannot be applied without
necessary purification to any and every search
of moving vehicles.
o The Carroll doctrine did not declare a field day
for the police in searching automobiles.
• Coolidge vs. New Hampshire
 Courts did not allow a warrantless search of a
parked car because the facts did not indicate
that it was impracticable to secure a warrant.
• Automobile or no automobile there must be a
probable cause for the search.
• Rules on moving vehicles were also applies by
court to a fishing vessel found violating fishery
laws but not to a motor launch that had already
been stripped of its engine.
• Warrantless arrest was also not allowed where
the peace officers had the evidence and every
opportunity to obtain a warrant while waiting for
an inter-island boat to arrive.
• People vs. Malmstedt
o A police checkpoint can also be the occasion
for a search of a moving vehicle.
o Accused, Malmstedt, was a passenger from
Sagada to Baguio which was stopped at Camp
Dangwa .
Page 28 of 104
 o Checkpoint has been set up on the basis of  Simply looks into vehicle
reports that vehicles from Sagada were being  Flashes a light therein without opening car
used to transport marijuana. door.
o During inspection, officers saw bulge in  Where occupants are not subjected to
accused’s waist. physical or body search
o Accused refuse to comply with request for  Where the inspection of vehicle is limited to
identification papers, he was made to show visual search or visual inspection.
what was on his waist… it was found to contain  Where routine check is conducted in fixed
hashish. area.
• Eurocar Sales
o Warrantless search was justified 1. WARRANTLESS SEARCHES AND SEIZURES:
o Attempted coup in 1989 3) EVIDENCE IN PLAIN VIEW
o There was an immediate need to search the
PEOPLE VS. TABAR
suspected arsenal of arms.
Thus, where marijuana sticks fall before the eyes of
o In addition, there was general chaos and a police officer from an object a person is carrying,
disorder. seizure of the sticks would not require a warrant.
o In such situation, waiting for a warrant could
give suspects time to hide instruments of the 2. WARRANTLESS SEARCHES AND SEIZURES:
crime 4)
• Aniag Jr. vs. COMELEC
3. CUSTOMS INSPECTIONS
o Recalled case of Valmonte vs. De Villa:
 An extensive search without warrant could UY KHEYTIN VS. VILLAREAL(#50, 58)
only be resorted to if the officers conducting It has been traditionally understood that customs
the search had reasonable or probable cause officers or border officers may search incoming
to believe before the search that either the persons and goods to look for either goods
concealed to avoid duties or other illegal materials.
motorist was a law offender or that they
would find the instrumentality or evidence 4. WARRANTLESS SEARCHES AND SEIZURES:
pertaining to the commission of the crime in (5) WAIVER
the vehicle to be searched. The waiver can be shown by failure to make any
o However, search in this case or a car made by objection or even mutter a bit of protest.
police officers twenty meters away from the
entrance to the batasan complex was not DE GARCIA VS. LOCSIN
[stated the rule]
justified by any earlier confidential report nor
It is well-settled that to constitute a waiver of a
by the behavior or appearance of motorists.
constitutional right, it must appear,
• Caballes vs. CA • First, that the right exists;
o the mere mobility of these vehicles does not • Secondly, that the person involved had
give the police unlimited discretion to conduct knowledge, either actual or constructive, of the
indiscriminate searches without warrants if existence of such right;
• Lastly, that said person had an actual intention
made within the interior of the territory and the
absence of probable cause. to relinquish the right.
In this case, there was failure to object an
o One such form of search of moving vehicles is
objectionable warrant. But the Court added:
the stop and search without warrant at military
In any event, the failure on the part of the petitioner
or police checkpoints which has been declaredand her bookkeeper to resist or object to the
to be not illegal per se, for as long as it is
execution of the warrant does not constitute an
implied waiver of constitutional right. It is… but a
warranted by the exigencies of public order and
submission to the authority of the law. As the
conducted in a way least intrusive to motorists.
constitutional guaranty is not dependent upon any
o Routine inspections not regarded as violative:
affirmative act of the citizen, the courts do not place
 Officer merely draws aside the curtains of a the citizen in the position either of contesting an
vacant vehicle which is parked on the public officer’s authority by force, or waiving his
fair grounds constitutional rights; but instead they hold that a
Page 29 of 104
peaceful submission to a search or seizure is not a prohibition against warrantless search. In the first
consent or an invitation thereto, but is merely a place, the military operatives, taking into account
demonstration of regard for the supremacy of the the facts obtaining in this case, had reasonable
law. ground to believe that a crime was being
committed. There was consequently more than
PEOPLE VS. COMAPACION sufficient probable cause to warrant their action.
Where the raid was conducted by armed officers, Furthermore, under the situation then prevailing, the
the Court said: The act of the accused-appellant in raiding team had no opportunity to apply for and
allowing the members of the military to enter his secure a search warrant from the courts. The trial
premises and his consequent silence during the judge himself manifested that on December 5, 1989
unreasonable search and seizure could not be when the raid was conducted, his court was closed.
construed as voluntary submission or an implied Under such urgency and exigency of the moment, a
acquiescence to warrantless search and seizure search warrant should lawfully be dispensed with.”
especially so when members of the raiding team
were intimidatingly numerous and heavily armed. 6. THE “STOP AND FRISK” RULE
His implied acquiescence, if any, could not have
been more than mere passive conformity given TERRY VS. OHIO (ADOPTED BY POSADAS VS.
under coercive or intimidating circumstance and is, CA)
thus, considered no consent at all within the purview “In this case, two men repeatedly walked past a
of the constitutional guarantee. Consequently, store window and returned to a spot where they
herein accused-appellant’s lack of objection to the apparently conferred with a third man. This aroused
search and seizure is not tantamount to a waiver of the suspicion of a police officer. To the experienced
his constitutional right or a voluntary submission to officer, the behavior of the men indicated that they
the warrantless search and seizure. were sizing up the store for an armed robbery. When
the police officer approached the men and asked
LOPEZ VS. COMMISSIONER OF CUSTOMS them their names, they mumbled a reply.
The Court saw waiver in the fact that a “mere Whereupon, the officer grabbed on of them, spun
manicurist” found in a hotel room allowed officers to him around and frisked him. Finding a concealed
make a search in the absence of the registered weapon, he did the same to the other two and found
occupant. The Court said: “Under the circumstance, another weapon. In prosecution for the offense of
that was the most prudent course of action [for the carrying a concealed weapon, the defense of illegal
manicurist]. It would save her and even petitioner search and seizure was put up.
Velasco himself from any gossip or innuendo. Nor
could the officers of the law be blamed if they would Finally, a ‘stop and frisk’ serves a two-fold
act on appearances. There was a person inside who interest:
from all indications was ready to accede to their (1) the general interest of effective crime prevention
request. Even common courtesy alone could have and detection, which underlies the recognition that a
precluded them from inquiring too closely as to why police officer may, under appropriate circumstances
she was there. (But if the defense of illegality of the
and in an appropriate manner, approach a person
search is purely personal, can it be waived by any for purposes of investigating possible criminal
other than the person himself?) Thus, Velasco behavior even without probable cause; and
became the victim of gentlemanliness! (2)the more pressing interest of safety and self-
preservation which permit the police officer to take
5. “EXIGENT CIRCUMSTANCE” steps to assure himself that the person with whom
PEOPLE VS. DE GARCIA he deals is not armed with a deadly weapon that
What precipitated its birth were intelligence reports could unexpectedly and fatally be used against the
that a building was being used as headquarters by police officer.
the RAM during the 1989 attempted coup d’etat. A
surveillance team was fired at by a group of armed 7. SUSPICIONLESS DRUG TESTS
men coming out of the building and the occupants
of the building refused to open the door despite VERNONIA SCHOOL DISTRICT VS. ACTON
repeated requests. Indications were that there were
large quantities of explosives and ammunitions Issue: Whether or not implementing the Student
inside the building. Nearby courts were closed and Athlete Drug Policy is an unconstitutional search?
general chaos and disorder prevailed.
The Court ruled: “Under the foregoing Held: The Court acknowledged that compelled
circumstances, it is our considered opinion that the urinalysis was a form of search but that its
instant case falls under one of the exceptions to the “reasonableness” must be judged by balancing the

Page 30 of 104
intrusion on the individual’s interests against the
promotion of legitimate government interests.
Student athletes have a lesser privacy expectation
than free adults because an element of communal
undress is inherent in athletic participation and
athletes are subject to preseason physical
examinations. The privacy interests involved in the
process of obtaining urine samples are negligible
since the conditions of collection are almost
identical with those found in public restrooms.
Moreover, the tests looked only for standard drugs
and not medical conditions, and the results would be
released only to a selected group. The legitimate
interest of the state in reducing the risk of physical
harm to the athlete and to others outweighs the
privacy interest of the student athlete.
8. ARRESTS WITH WARRANT
Both the 1973 and the 1987 texts moved any doubt
about the correctness of the Amarga decision since
the new provision now specifically imposes the same
requirements for both search warrants and warrants
of arrest. Hence, what has been said about probable
cause and particularity of description in the
discussion of the search warrants can with equal
truth be said of warrants of arrest, and little need be
said on these two subjects.
In the discussion of probable cause, it will be
recalled that for its determination the judge is bound
to examine the complainant and the witnesses the
complainant may produce. In other words, it is the
judge himself who must personally determine
whether probable cause exists or not..
A doubt arose in this case when the question was
asked whether, after the filing of the information by
the fiscal (which presupposes that the fiscal has
found probable cause after preliminary
investigation), a judge could still refuse to issue a
warrant of arrest.
[The background of this question goes back to pre
1935 doctrine of subject: in the next case]
Nothing, indeed, was said in the Convention about
abuses in the issuance of warrants of arrest. But
Francisco, speaking for the incorporation of Sec. 98
of G.O. NO. 58 in the provision on search and
seizure, did say that the manner of determining
probable cause for the issuance of search warrants
should also apply to warrants of arrest.
In the context, however, of Francisco’s speech,
dealing with the abuses in the issuance of search
warrants, it is not clear that the Convention
approved his amendment with the intention of
extending it to warrants of arrest. Either for this
reason, or, perhaps, because Chief Justice Paras was
not aware of Francison’s convention remark, the
Chief Justice did not make use of this argument in
the majority opinion.
In holding that the judge was not bound by the
findings of the fiscal as to probable cause, Paras
merely appealed to the text of the constitutional
provision and to the ruling in the 1910 case of US vs.
Ocampo. Thus, in effect and without saying so many
words, Paras rejected the US SC ruling in Ocampo
vs. US in favor of the original Philippine decision. But
Paras also said that the judge may issue a warrant
of arrest on the basis merely of the fiscal’s findings
recited in the information, if he is satisfied with its
adequacy.
In Amarga, the doctrine on the verification of
probable cause for the issuance of arrest of warrants
was less than lucidly clear, subsequent decisions
emphasized that it is the judge who must determine
probable cause. In the immigration cases discussed
above, the Court reiterated that only a judge can
issue warrants. The legislature also affirmed the
constitutional need for judicial intervention when by
R.A. No. 3828 (1963) it amended Sec. 87 (c) of the
Judiciary Act of 1948 by inserting: “No warrant of
arrest shall be issued by any justice of the peace in
any criminal case filed with him unless he first
examines the witness or witnesses personally, and
the examination shall be under oath and reduced to
writing in the from of searching questions and
answers.
But again, as in the case of search warrants, must
the judge personally examine the complainant and
the witnesses or can he rely on evidence presented
by the prosecuting officer?
It should be noted that the Rules of Court prescribe
detailed rules which municipal judges must follow:
SEC. 6. When warrant of arrest may issue.- xxx
(b) By the Municipal Trial Court.- xxx The judge may
issue a warrant of arrest if he finds after an
examination in writing and under oath of the
complainant and his witnesses in the form of
searching questions and answers, that a probable
cause exists and that there is a necessity of placing
the respondent under immediate custody in order
not to frustrate the ends of justice.
9. WARRANTLESS ARREST
Exceptions to the requirement of an arrest
warrant (Rule 113, Sec. 5, Rules of Court)
Sec. 5. Arrest without a warrant; when lawful.- A
peace officer or private person may, without a
warrant , arrest a person:
(a) When, in his presence, the person to be arrested
has committed, is actually committing, or
attempting to commit an offense;
(b) When an offense has in fact been committed,
and he has personal knowledge of facts indication
that the person to be arrested has committed it; and
Page 31 of 104
(c) When the person to be arrested is a prisoner who
has escaped from a penal establishment or place
where he is serving final judgment or temporarily
confined while his case is pending, or has escaped
while being transferred from one confinement to
another.
In cases falling under paragraphs (a) and (b) hereof,
the person arrested without a warrant shall be
forthwith delivered to the nearest police station or
jail, and he shall be proceeded against in
accordance with Rule 112, Sec. 7.
Hence, he may be arrested any time he may be
encountered. [This reaffirmed on reconsideration in
In Re Umil. The decision was a reaffirmation of the
notorious Garcia-Padilla vs. Enrile]
Regarding Sec. 5(b), “it is not enough that there is
reasonable ground to believe that the person to be
arrested has committed a crime. A crime must in
fact or actually have been committed first. That a
crime has been committed is an essential
precondition.

PEOPLE VS. JAYSON It should, however, also be noted that both statutory
Where, however, while patrolling in their car, law and the 1973 and 1987 Constitutions speak of
policemen received a radio message from their “seizure” and “arrest” and that, while an “arrest” is
camp directing them to proceed to “ihaw-ihaw” necessarily a “seizure,” not every seizure is an
where there had been a shooting, went to the place arrest.
and there saw the victim and bystanders pointing to
the accused fleeing from the scene, the Court ruled An arrest, according to Rules of Court, “is the taking
under Rule 113 Sec. 5(b): an offense had in fact just of a person into custody in order that he may be
been committed, and the officers had personal forthcoming to answer for the commission of an
knowledge of the facts indicating that the accused offense.” There are, however, deprivations of
had committed it. physical liberty whose object is not necessarily
detention in order to be available to answer for an
PEOPLE VS. DORIA offense. The classic case is the “stop and frisk”
A “buy bust operation thus is closely related to already discussed above.
“entrapment.” Entrapment may or may not be
allowed depending on the circumstances. “It is 10.WHEN TO CHALLENGE VALIDITY OF ARREST
recognized that in every arrest, there is a certain
amount of entrapment used to outwit the persons *Any objection involving a warrant of arrest or
violating or about to violate the law. Not every procedure in the acquisition by the court of
deception is forbidden. The type of entrapment the jurisdiction over the person of the accused must be
law forbids is the inducing of another to violate the made before he enters his plea, otherwise the
law, the ‘seduction’ of an otherwise innocent person objection is deemed waived.
into a criminal career. Where the criminal intent
originates in the mind of the entrapping person and ASSOS AND PRESIDENTIAL COMMITMENT
the accused is lured into the commission of the ORDERS (PCO)
offense charged in order to prosecute him, there is During the period of martial law, searches and
entrapment and no conviction may be had. seizures by the military of persons suspected to be
Where, however, the criminal intent originates in the engaged in revolutionary activity were carried out
mind of the accused and the criminal offense is by an Arrest, Search and Seizure Order (ASSO)
completed, the fact that a person acting as a decoy generally issued by the Minister of National
for the state, or public officials furnished the Defense. Such orders by the Minister of Defense
accused an opportunity for commission of the were made in virtue of General Order No.2-A
offense, or that the accused is aided in the issued by the President pursuant to the
commission of the crime in order to secure the proclamation of martial law and specifically
evidence necessary to prosecute him, there is no authorizing the Minister to arrest and detain such
entrapment and the accused must be convicted. The persons until released by the President himself.
law tolerates the use of decoys and other artifices to After the lifting of martial law came the use of
catch a criminal. another instrument, the Presidential
Commitment Order or PCO. In a general sense,
UMIL AND DURAL VS. FIDEL RAMOS the PCO was an order of preventive detention issued
A controversial application of the in flagrante delicto by the President as Commander-in-Chief. As
rule is its use with regard to “continuing crimes.” concretized in Letter of Instruction No. 1211, it
Rebellion and conspiracy or proposal to commit was an order issued by the President to his
rebellion are considered continuing crimes. In subordinates for the arrest and detention of persons
continuing crimes the accused is assumed to be committing crimes mentioned in P.D. No. 2045 with
always committing the offense even when asleep. respect to which the privilege of the writ remained
Page 32 of 104
suspended by the same P.D. No. 2045. LOI 1211 means for inquiry, the privilege of the writ, had been
said that the PCO would issue: suspended. Note, however, that the privilege of the
(a) When resort to judicial process is not possible or writ was merely suspended; it was not forever
expedient without endangering public order and abolished.
safety; or
(b) When the release on bail of the person or Hence, when the suspension of the privilege is lifted
persons already under arrest by virtue of a and the person is still in detention, should a habeas
judicial warrant would endanger said public corpus case be entertained? Similarly, if the
order or safety. preventive detention is ordered on the occasion
Two questions were posed by the PCO in relation merely of the calling of the armed forces but without
to the search and seizure clause: suspension of the privilege, will a habeas corpus
(1) Did the President have the poser to order arrest case be entertained?
and detention in times of crises?
(2) Must the order of arrest and detention conform The Chief of Justice seemed to suggest that
with the requirements of a valid warrant? preventive detention, for as long as it remained only
These questions were both dealt with in the preventive, was not subject to judicial review. The
landmark cases of Garcia-Padilla vs. Enrile and detention could be actionable by habeas corpus only
Morales vs. Enrile. And although these cases dealt should it continue for such a length of time as to
with the PCO, the doctrine formulated also applied make it punitive in character.
to the earlier ASSO.
Although these case happened under the regime of Assuming that the above is a correct reading of the
the 1973 Constitution, there are elements in it which view of the Chief Justice on the justiciability of the
have applicability to the current Constitution. The preventive detention under circumstances where
President’s power of preventive detention rests on neither martial law nor suspension of the privilege is
solid foundation. The crisis powers of the President in effect, it is submitted that a contrary view more
as Commander-in-Chief in Article VII, Section 9 of hospitable to individual liberty is defensible.
the 1973 Constitution, in hierarchic order were:
(1) to call on the armed forces to suppress or Admittedly, the language of Justice Holmes in Moyer
prevent lawless violence, invasion, insurrection or vs. Peabody on which the Chief Justice relied was
rebellion; sweeping in its affirmation of executive discretion.
(2) to suspend the privilege of the writ of habeas
corpus; But executive discretion in MOYER VS. PEABODY
(3) to impose martial law. was affirmed as possessing finality not for the
In the concrete, LOI 1211 linked the PCO with the purpose of blocking release of Moyer but for the
suspension of the privilege, the second of the purpose of protecting Peabody, a former governor,
President’s crisis powers; from being made to answer for action he took while
governor. Holmes in fact conceded that the action
Granted, however, that the President has the power taken by the then Governor Peabody was “without
to order preventive detention, is his order beyond sufficient reason” but Holmes absolved the governor
judicial review? The question is still relevant of liability because the governor had acted “in good
because the 1987 provision on emergency retains faith.”
much of the old rule.
But could the answer really be as simple as that? The significance of the ruling in Moyer vs. Peabody
And, even if it could under the 1973 Constitution, becomes clearer when compared with the later case
can the same be said under the 1987 Constitution? of Sterling vs. Constantin.
As the question arose in the concrete cases of
Garcia-Padilla and Morales, the PCO was inextricably STERLING VS. CONSTANTIN
tied to the suspension of the privilege of the writ of In Sterling, the object of the suit was not to make a
habeas corpus. state governor civilly or criminally liable but to
enjoin him from proceeding with measures he was
The argument in GARCIA-PADILLA AND MORALES bent on taking pursuant to a martial law declaration
was that the restrictive effect of the PCO may not be and on the claim that discretionary measures taken
inquired in to by the courts through a habeas corpus by him were not subject to judicial review.
action because the privilege of the writ, whose
object precisely is the inquiry into the validity of a Chief Justice Hughes, writing for the Court in Sterling
detention, had been suspended. In other words, said: It does not follow from the fact that the
inquiry was not possible not because the nature of Executive has this range of discretion, deemed to be
the detention was preventive but because the a necessary incident of his power to suppress
Page 33 of 104
disorder, that every sort of action the Governor may
take, no matter how unjustified by the exigency or
subversive of private right and the jurisdiction of the
courts, otherwise available, is conclusively
supported by mere executive fiat. The contrary is
well established. What are the allowable limits of
military discretion, and whether or not they have
been overstepped in a particular case, are judicial
questions.
By analogy, while the President may indeed have
final discretion on whether or not to call on the
armed forces or to suspend the privilege or to
impose martial law, it does not follow that
everything he does in the name of necessity or that
everything he orders the armed forces to do is legal.
The contrary position completely subverts the
supremacy of the constitution.
Hence, in the PCO in Garcia-Morales and Padilla
were not subject to judicial inquiry then, it was not
because they were orders of preventive detention
but because the suspension of the writ of habeas
corpus temporarily prevented inquiry into their
legality. In other words, if the President wishes to
close off inquiry into the legality of emergency
detentions, it is not enough that the detentions be
characterized as preventive; the President must in
addition close the avenue to inquiry by suspending
the privilege of the writ. Which was that in fact
President Marcos had done. And since by its nature
a suspension of the privilege is temporary, the
exclusion of the courts from inquiry into questions of
legality must also be temporary. Which in turn
brings up the question of standards for measuring
the legality of the detention.
The purpose of the inquiry into the legality of
detention can be either for determining the criminal
or civil liability of the persons responsible for the
arrest and detention, or for the release of the person
detained. For the purposes of determining liability,
the standard is the good or bad faith of the
executive ordering the arrest. As already shown, this
was the case in Moyer vs. Peabody. In the language
of Justice Holmes: “So long as such arrests are
made in good faith and in the hones belief that they
are needed in order to head the insurrection off, the
Governor is the final judge and cannot be subjected
to an action after he is out of office on the ground
that he had no reasonable ground for his belief.
In the concrete case of our constitutional system
under the 1973 Constitution, however, for purposes
of civil or criminal liability, the good or bad faith of
the Executive was irrelevant. Executive immunity,
for the President and for those who act on his
specific instructions, was guaranteed in sweeping
terms by the mantle of immunity woven by the
geniuses of the Batasan. Article VII, Section 15
(1973), said: “The President shall be immune from
suit during his tenure. Thereafter, no suit
whatsoever shall lie for official acts done by him or
others pursuant to his specific orders during his
tenure.
Immunity of the executive from liability, however, is
one thing; the legality of keeping a person under
detention is another. The suspension of the privilege
of the writ, while it prevents inquiry into the legality
of the detention, does not legalize the detention.
Once the suspension is lifted, the legality of the
detention, even under the 1973 Constitution, should
be examined by the courts for the purpose of
determining whether release should be ordered. For
this purpose, the standard of legality cannot be
simply the good faith or bad faith of the executive. It
must be something more objective.
Must the standard be the requirements for a valid
warrant?
Justice Hermogenes Concepcion in Morales
says that the PCO is a warrant issued by the
President and therefore must comply with the
requirements of a valid warrant “in the same
manner and to the same extent as a warrant of
arrest issued by a judge.” This, of course, is obiter
dictum because both Garcia-Padialla and Morales
found the arrests to be justifiable as exceptions to
the ordinary requirement of a warrant. Moreover, it
overstates the case.
The PCO can come in the form of a warrant, in which
case it must conform to the requirements of a valid
warrant. But the PCO can also be a simple go-signal
given by the President for a warrantless arrest. It is
established doctrine that warrantless arrests can be
valid, and the procedural requirements, such as
examination under oath, applicable to a warrant of
arrest do not apply to allowable arrests without
warrant. However, as already seen, the rule
consecrated by the Constitution for the validity of
arrests, whether the arrests be with warrant or
without warrant or whether the warrant be issued by
a judge or by any other responsible officer
authorized by law, is that the arrest must be based
on the existence of “probable cause.” This is the
bottom line. To require les and to say that the
ultimate test for the validity of a detention is not
probable cause but the good or bad faith of the
executive is to trivialize personal dignity.
But now under the 1987 Constitution, Article VII,
Section 1 provides: “Judicial power includes the duty
of the courts of justice… to determine whether or
not there has been a grave abuse of discretion
Page 34 of 104
amounting to lack or excess of jurisdiction of the The guarantee given by the privacy provision is not
part of any branch or instrumentality of the absolute. But what is the measure of allowable state
Government. intrusion into privacy?
The original proposal at the 1935 Constitution read:
SEC. 3 (1) THE PRIVACY OF COMMUNICATION “The privacy of communication and correspondence
AND CORRESPONDENCE SHALL BE INVIOLABLE shall be inviolable except upon lawful order of the
EXCEPT UPON LAWFUL ORDER OF THE COURT, court.”
OR WHEN PUBLIC SAFETY OR ORDER It was obviously the intent of the proponent of the
REQUIRES OTHERWISE AS PRESCRIBED BY provision, Delegate Laurel, to condition allowable
LAW. intrusion upon an order of a court. He argued: We
(2) ANY EVIDENCE OBTAINED IN VIOLATION OF state the fundamental principle that a person is
THIS OR THE PRECEDING SECTION SHALL BE entitled to the privacy of communication; that he is
INADMISSIBLE FOR ANY PURPOSE IN ANY entitled to his secrets, but in those cases where a
PROCEEDING. secret involves public questions which the State
should and ought to know, the State may infringe
I. PRIVACY OF COMMUNICATION AND that privacy of communication by some process or
CORRESPONDENCE by appealing to the Court for the purpose of
Invasion of communication and correspondence is determining whether or not the privacy should be
one kind of search. maintained.
The 1st paragraph of the present provision on Laurel won approval for his proposal. But the
privacy of communication and correspondence Committee on Style added to it: “or when public
poses 2 questions: safety and order require otherwise.”
1. What type of communication and correspondence It is clear therefore that the 1935 Constitution
does the provision cover? allowed intrusion into the privacy of communication
2. What are the conditions for allowable intrusion either upon lawful order of a court or even without a
into the privacy of communication and court order when public safety and order so
correspondence? demands.
When intrusion is sought through an order of a
At the 1935 Constitutional Convention, Delegate court, upon what grounds may the court allow
Laurel said that the object of the provision was to intrusion?
provide adequate protection for “letters and The text does not give any ground. It is submitted
messages” carried by the agencies of the that the requirement of probable cause in the
government lest “their privacy be wantonly violated preceding section should be followed. After all, as
and great harm be inflicted upon the citizens.” may be seen in the development of American
When asked whether the protection covered jurisprudence on the subject, the privacy right is but
telephone calls, he replied that the terms an aspect of the right to be secure in one’s person.
communication and correspondence were “used in a (see MATERIAL DISTIBUTORS, INC. VS.
general sense.” NATIVIDAD)
The clarification of the scope of the privacy provision Should the order also particularly describe the
is crucial for present day constitutional law. Does it communication or correspondence sought to be
in fact cover wiretaps or other methods of electronic seized?
eavesdropping? Definitely it does. When the correspondence sought is written
When the 1935 Constitution was being formulated correspondence, it would seem that there should be
the controlling doctrine was that the search and no inconvenience in requiring particularity of
seizure clause did not prohibit non-trespassory wire- description.
taps. But if the intrusion is to be done through wire-taps,
The framers of the 1935 Constitution were quite how is the description to be made?
aware of the Olmstead doctrine and their realization Evidently, it would be impossible to describe the
of the inadequacy of the search and seizure clause contents of a communication that had not yet been
as a protection for personal privacy must have at made. Hence, it would be unreasonable to require a
least partly motivated the adoption of the privacy description of the contents of the communication.
provision. It has no counterpart in the American But the identity of the person or persons whose
Constitution nor in Phil. Organic law earlier than the communication is to b intercepted, and the identity
1935 Constitution. of the offense or offenses sought to be prevented,
and the period of the authorization given can be
In effect, the privacy provision anticipated future specified.
development of American jurisprudence, for in 1967: In fact, an attempt in this direction is made by
Section 3 of R.A. 4200, the Anti-Wiretapping Law,

Page 35 of 104
and similar safeguards also found in Title III of the
Omnibus Crime Control and Safe Streets Act, 18
U.S.C. Section 2518, which was discussed in the
wiretapping case of US VS. US DISTRICT CT.,
EASTERN MICHIGAN.
. that a public officer who exercises this power must
When intrusion is made without a judicial order, how
is the matter to be approached?
It would have to be based upon a non-judicial
government official’s assessment that public safety
and order demands such intrusion. In addition to
what has been said about what transpired at the
1935 Convention, it was made clear in the 1972
Convention that an executive officer can order
intrusion when in his judgment and even without
prior court approval he believes that public safety or
order requires.
And public order and safety were defined as “the
security of human lives, liberty and property against
the activities of invaders, insurrectionists and
rebels.”
Thus the law stood during the period of martial law,
which did not leave behind any clarificatory
jurisprudence on the subject. In reviewing this
provision, the 1986 Constitutional Commission
sought to find ways of ensuring that the power will
not be abused by executive officers.
The Committee Report sought to modify the 1935
and 1973 versions to read “The privacy of
communication and correspondence shall be
inviolable except upon lawful order of the court
when public safety or order requires otherwise.”
By the simple expedient of dropping the word “or,”
the effect sought was the restoration of the original
1935 proposal of Laurel which required court order
for a valid intrusion.
This was resisted as being too restrictive of
executive power. Commission Rodrigo argued:
“We must not hamper the activities for the
intelligence service of the government. This is
specially true now that there are threats to the
stability of the government; for example, there is
the criticism of why the armed Forces seemed not to
have known beforehand about the aborted coup
d’hotel that happened a few Sundays ago. … While I
myself would want all my communications and
correspondence absolutely untampered with,… we
should not tie the hands of government. So I would
be willing to subordinate my personal privacy to
public safety.
But Commissioner Regalado added that intrusion
without court order should be “resorted to only in
the extreme cases.”
Rodrigo’s and Regalado’s argument struck a
responsive chord and the word “or” was restored.
But Commissioner Davide was quick to add a new
phrase, “as prescribed by law,” which
Commissioner Bernas immediately accepted for
the Committee.
The effect of this addition, made in the interest of
safeguarding liberty, is not only that the discretion
of the executive officer is limitable by law but also
be able to point to a law under which he acts. To
hold otherwise would be to opt for a government of
men and not of laws.
Every police agent would feel authorized to snoop.
Moreover, it goes without saying that “abuse of
discretion amounting to lack or excess of
jurisdiction” can be checked through judicial review.
II. EXCLUSIONARY RULE: HISTORICAL
DEVELOPMENT
The exclusionary rule bars admission of illegally
obtained evidence. The second paragraph of Section
3, Article III makes the rule applicable to evidence
obtained under both Section 2 and Section 3(1).
The rule, which first became explicit in Article IV,
Sec. 4(2) of the 1973 Constitution, has had an
uneven history in Philippine jurisprudence. It was
first brought into prominence in a case involving the
activities of agents of the Anti-Usury Board.
From this brief survey it can be gathered that, at the
start of the Second World War, the Supreme Court’s
teaching on search and seizure of books and papers
was this:
(1) To use a search warrant to obtain private papers
for the purpose of using them as evidence of crime
against the person from whom they are taken is
equivalent to self-incrimination and is “unreasonable
search and seizure.” Such papers are not admissible
evidence.
(2) However, for one to be able to use this privilege,
the illegality of the search and seizure should first
have been directly litigated and established by a
motion, made before trial, for the return of the
things seized.
(3) This privilege does not extend to books in whose
regulation the public has an interest.
(4) Nor may an individual person avail himself of this
privilege with respect to papers belonging to a
corporation.
(5) The privilege does not apply to books used in the
perpetration of a crime, i.e., when they constitute
the corpus delicti.
The close of the 2nd World War and the prosecution
of treason cases brought in new opportunities for
the court to develop its teaching on search and
seizure.
To no avail was Justice Cesar Bengzon’s appeal to
history in his dissent. Bengzon argued that the 1935
Philippine Constitutional Convention wanted the
search and seizure provision to be exactly like the
provision of the Fourth Amendment of the American
Page 36 of 104
Federal Constitution. The Convection made specific
reference to Boyd and Gouled.
Subsequently, under the 1935 Constitution, the
Court adopted in Alvarez the ruling in Boyd, and
this, in spite of the fact that the Court, as shown in
Carlos, was aware of the divergent courses taken by
Federal and State decisions. Hence, Bengzon
concluded, “we are not at liberty now to select
between two conflicting theories. The selection has
been made by the 1935 Constitutional Convention
when it impliedly chose to abide by the Federal
decisions, upholding to the limit the inviolability of a
man’s domicile.
With Bengzon’s failure to win the other justices to
his side and to the side of the ruling in Uy Kheytin
and Alvarez, a new era was introduced for the role
of search and seizure in the Philippines.
It is paradoxical that this doctrine, oppressive to free
people, was occasioned in part, at least, by the
arrival of American forces come to liberate the
Philippines from the Japanese. The circumstances of
liberation and the establishment of temporary
American military government brought about a
temporary duality of internal jurisdiction which
allowed judicial appeal to the Weeks, Burdeau and
Gambino decisions which the US SC would
eventually reject.
[Both Weeks and Gambino were rejected in ELKINS
VS. US. Burdeau may also not be able to stand now
in view of WEEKS and of MAPP VS. OHIO.]
The pre-Moncado rule, however, was not allowed
to die. Justice Roberto Concepcion kept it alive in
dissent in MEDINA VS. CIR appealing both to
Weeks and the more recent case of ELKINS VS. US.
Hence, it was fitting that Concepcion should pen the
1967 decision in Stonehill vs. Diokno formally
rejecting Moncado: “Upon mature deliberation… we
are unanimously of the opinion that the position
taken in the MOncado case must be abandoned.”
It is noteworthy, however, that while the Stonehill
decision rejected the Moncado doctrine that
evidence illegally obtained was admissible, it was
not a complete return to the pre-Moncado rule. The
Uy Kheytin and the Alvarez cases appealed to the
theory that seizure of papers amounted to self-
incrimination and thus rendered the seizure
unreasonable.
The Stonehill case, on the other hand, considered
the search and seizure clause by itself: admission of
illegally obtained evidence makes the rule of
freedom from stat invasion of privacy “so ephemeral
and so neatly severed from its conceptual nexus
with freedom from all brutish means of coercing
evidence.
To the argument that prosecution of those guilty of
illegal search and seizure sufficed to protect the
constitutional guarantee, the Court answered that
such argument overlooks the fact that violation
thereof are, in general, committed by agents of the
party in power, for, certainly, those belonging to the
minority could not possibly abuse a power they do
not have.
Regardless of the handicap under which the minority
usually- but, understandably- finds itself in
prosecuting agents of the majority, one must not
lose sight of the fact that the psychological and
moral effect of the possibility of securing their
conviction is watered down by the pardoning power
of the party for whose benefit the illegality has been
committed.
In spite of the patent illegality of the search warrant,
however, and in spite of the reversal of the Moncado
doctrine, not all the evidence seized in virtue of the
warrants was barred from admission.
Justice Concepcion made a distinction between the
documents, papers and effects “found and seized in
the offices of the aforementioned corporations” and
those “found and seized in the residences of the
petitioners.” The latter, Concepcion said, were
barred from admission whereas the former were not,
because Stonehill, being a person separate and
distinct from the corporations, had no personality to
raise unconstitutional seizure of the evidence found
in corporation premises. No effort, however, was
made to determine which items among the two sets
of evidence belonged to Stonehill and which to the
corporations. Concepcion made place of seizure the
sole standard for distinguishing the admissible from
the inadmissible. He seemed to assume that the
location of the items seized also determined
ownership.
Even assuming, however, that Concepcion’s
distinction had the effect of separating personal
papers from corporate papers, and admitting further
that the right against unreasonable searches and
seizures is a personal right, the distinction, under
the circumstances, smacked of hyperlegalism. The
warrants were issued as part of a single operation
and they were couched in identically defective
forms. Under such circumstances, to allow the
distinction made by Concepcion on the basis of “lack
of standing” seems to render the constitutional
provision “so ephemeral and so neatly severed from
its conceptual nexus with freedom from all brutish
means of coercing evidence.” This conclusion is
especially cogent since Concepcion’s “location test”
did not effectively divide the personal from the
corporate effects.
At any rate, Stonehill also clearly affirmed that “the
legality of a seizure can be contested only by the
party whose rights have been impaired thereby, and
that the objection to an unlawful search and seizure
is purely personal and cannot be availed of by third
parties.
III. EXCLUSIONARY RULE: CURRENT STATUS
Page 37 of 104
*ever since Stonehill, this rule has been in firm private individuals so as to bring it within the ambit
possession of alleged unlawful intrusion by the government.”

*reiterated in Bache & Co. V Ruiz which upheld the *public officials – violation of bill of rights
right of a corporation to object against unreasonable *private individual – violation of Article 32 of the
searches and seizures. Civil Code

*the specific incorporation of the rule into the

constitutional text, aside from friming up the rule,
produces two other consequences: 1. It divorces the
rule from the self-incrimination clause. 2. By making
such evidence inadmissible for any purpose in any
proceeding.
SECTION 4. NO LAW SHALL BE PASSED
ABRIDGING THE FREEDOM OF SPEECH, OR
EXPRESSION, OR OF THE PRESS, OF THE RIGHT
OF THE PEOPLE PEACEABLY TO ASSEMBLE AND
PETITION THE GOVERNMENT FOR REDRESS OF
GRIEVANCES.

IV. VIOLATIONS BY PRIVATE PERSONS I. THE 1987 CONSTITUTION

*to come under exclusionary rule, evidence must be *several reasons why freedom of expression is
obtained by government agents and not by private guaranteed by the Constitution:
individuals acting on their own *for some, it is essential for the search of
truth
*that it is needed for democracy to work
People v Andre Mari
properly
-a private firm engaged in the business of
*it promotes individual self-realization and
forwarding packages, opened boxes entrusted to it
self-determination
by a customer for final inspection as part of
standard its operating procedure before delivery of
*the sentiment was that the provision had become
packages to the Bureau of Posts or Bureau of
the subject of an extensive body of jurisprudence,
Customs.
both Philippine and American, and should be
preserved
-finding dried marijuana leaves inside a package,
the firm took samples to the NBI, who verified that
*the Committed noted that the proposed
the dried leaves were marijuana leaves.
reformulation of the provision, which came from the
floor, did not contain anything not already contained
-when presented by the NBI as evidence for
in the old formula.
prosecution for violation of drug laws, its
admissibility was challenged on ground that it was
fruit of an illegal search
II. FREEDOM OF SPEECH AND PRESS: PRIOR
RESTRAINT AND SUBSEQUENT PUNISHMENT
-brushing aside such defense, the Court said:
*Freedom of expression (FOE) was a concept
“the constitutional proscription against unlawful
unknown to Philippine jurisprudence prior to 1900
searches and seizures therefore applies as a
restraint directed only against the government and
*Spain’s refusal to recognize FOE was a prime cause
its agencies tasked with the enforcement of the law.
of the revolution (Jose Rizal in his work Filipinas
Thus, it could only be invoked against the State to
Despues de Cien Anos counted FOE as one of the
whom the restraint against arbitrary and
reforms sine quibus non demanded by the Filipinos)
unreasonable exercise of power is imposed.”
*the privilege was not known to Filipinos until it was
“if the search is made upon the request of the law
transplanted by President McKinley’s Instruction to
enforcers, a warrant must generally be first secured
the second Philippine Commission
if it is to pass the test of constitutionality. However,
if the search is made at the behest or initiative of
*Justice Malcolm said, “a reform so sacred to the
the proprietor of a private establishment for its own
people of these islands and won at so dear a cost,
and private purposes, as in the case at bar, and
should now be protected and carried forward as one
without the intervention of police authorities, the
would protect and preserve the covenant of liberty
right against unreasonable search and seizure
itself”
cannot be invoked for only the act of private
individual, not the law enforcers, is involved. In sum,
the protection against unreasonable search and
seizure cannot be extended to acts committed by
Page 38 of 104
*common law doctrine—elevated to a constitutional -on June 30, 1971 the US SC refused injunction; it
principle through first amendment of American reiterated the traditional presumption against prior
Federal Constitution—was summarized y Blackstone: restraint.
“the liberty of the press is indeed essential to the -the court held that the Government had not met
nature of a free state. Every freeman has an that burden
undoubted right to lay what sentiments he pleases
before the public; but if he publishes what is
improper, mischievous, or illegal, he must take the IV. PRIOR RESTRAINT, MOVIES AND
consequence of his own temerity. ELECTRONIC MEDIA
*radio and televisions, same fate during martial rule
*the first prohibition of the constitutional provision is
thus a prohibition of prior restraint Santiago v Far East Broadcasting
-an illustration of less than total obeisance to the
*prior restraint means official governmental prior restraint rule
restrictions on the press or other forms of
expression in advance of actual publication or *Commonwealth Act 98 gave the Secretary of
dissemination. Interior power to censor all programs and to
eliminate or cancel from the program such number
or parts thereof as in his opinion are neither moral,
III. PRIOR RESTRAINT AND THE PRESS educational, nor entertaining and prejudicial to
public interest.
Near vs Minnesota
-the issue was a statute authorizing the state to Pursuant to this, the Secretary of Interior issued a
obtain an injunction against the continued regulation requiring the submission of speeches
publication of any newspaper or magazine after twenty four hours before broadcast time.
finding by a court that such newspaper or magazine
has become a public nuisance by engaging in the Was the requirement valid?
business of regularly publishing “MALICIOUS,
SCANDALOUS AND DEFAMATORY” articles. The Court said it was, as a proper exercise of its
police power; however, we are not called upon here
-The Saturday Press was found to be such a public to inquire into the constitutionality and validity of
nuisance because of series of viciously anti-Semitic said Act...because the petitioner has not specifically
articles it had published. The articles in substance raised it..
charged that “a Jewish gangster was in control of
gambling, bootlegging and racketeering in If the petitioner would have raised it, the Court
Minneapolis, and that law enforcement agencies made clear when it said:
were not energetically performing their duties.
...[a] speech that may endanger the public safety
-on this basis, further publication of the newspaper may be censored and disapproved for broadcasting.
was permanently enjoined. How could the censor verify the petitioner’s claim
-the operation and effect of the STATUTE in that the speeches he intended to broadcast offered
substance is that public authorities may bring the no danger to public safety or public morality, if the
owner or publisher of a newspaper or periodical petitioner refused to submit the manuscript or event
before a judge upon a charger of conducting a the gist thereof?
business of publishing scandalous and defamatory
matter. Far Eastern Broadcasting v Dans, Jr
-in 1985
New York Times vs United States -had the opportunity to deal with a radio station,
-1971 case which had been summarily closed on the grounds of
-arose when the New York Times started publication nationals security.
of excerpts from a classified Pentagon study entitled
History of U.S. Decision Making Process on Vietnam -in the midst of the litigation for the reopening of the
Policy. station, ownership of the station passed to someone
-the NIXON administration claimed that continued to whom the government willingly gave a permit to
publication of the study would pose a serious threat operate.
to national security.
-for the guidance of inferior courts and
administrative tribunals, the Court issued guidelines

Page 39 of 104
which essentially required hearing and the
application of the clear and present danger rule -in order to for there to be due process of law, the
action of the Director of Posts must be subject to
-the need for licensing was for proper allocation of revision by the courts in case he had abused his
airwaves discretion or exceeded his authority

-the Court at the same time pronounced that the -the performance of the duty of determining
freedom of broadcast media is lesser in scope than whether a publication contains printed matter of
the press because of their pervasive presence in thelibellous character rest with the Director of Posts
lives of people and because of their accessibility to
and involves the exercise of his judgment and
children discretion; the rule is that the courts will not
interfere with the decision of the Director of Posts
NOTE: same observation made in Gonzales v unless clearly of opinion that it was wrong.
Kalaw Katigbak with respect to television
-under the martial rule in Philippines, strict movie
censorship procedures were in effect. But even now
Freedman v Maryland after martial rule movies are still under the
-the Court took pains to set down strict standards constricting grip of the as yet judicially unchallenged
and procedural safeguards for movie censorship; the censorship body created by Presidential Decree
Court said: 1986.

[we] hold that a non-criminal process which requires -under the decree a movie classification board is
prior submission of a film to a censor avoids made the arbiter of what movies and television
constitutional infirmity only if takes a place under programs or parts of either are fit for public
procedural safeguards designed to obviate dangers consumption.; it decides what movies are immoral,
of a censorship system. First, the burden of proving indecent, contrary to law and/or good customs,
that the film is unprotected expression must rest on injurious to the prestige of the RP or its people and
the censor. Second, the requirement cannot be what tend to incite subversion, insurrection,
administered in a manner which would lend an rebellion, or sedition or tend to undermine the faith
effect of finality to the censor’s determination. Only and confidence of the people in their government
a procedure requiring a judicial determination and/or duly constituted authorities. Its decisions are
suffices to impose a valid final restraint. The executor unless stopped by court.
procedure must also assure a prompt judicial
decision, to minimize the deterrent effect of an V. MEDIA AND JUDICIAL PROCESS
interim and possibly erroneous denial of a license.
Secretary of Justice vs. Sandiganbayan
Iglesia ni Kristo v CA -This case involved a petition to allow live television
-this thoughtful thesis is an attempt to transplant coverage of the trial of former President Estrada.
another American rule in our jurisdiction
-In denying the petition the Court relied completely
-we are not ready to hold that it is unconstitutional on American jurisprudence: In Estes vs. Texas, the
for Congress to grant an administrative body quasi- US Supreme Court held that television coverage of
judicial power to preview and classify TV programs judicial proceedings involves an inherent denial of
and enforce its decision subject to review by our the due process rights of a criminal defendant.
courts Voting 5-4, the Court through Mr. Justice Clark,
identified four (4) areas of potential prejudice which
-Sotto v Ruiz cited: the use of the mails by private might arise from the impact of the cameras on the
persons is in the nature of a privilege which can be jury, witnesses, the trial judge and the defendant.
regulated in order to avoid is abuse. Persons The decision in part pertinently stated:
possess no absolute right to put into the mail
anything they please, regardless of its character -Experience likewise has established the prejudicial
effect of telecasting on witnesses. Witnesses might
-the exclusion of newspaper and other publications be frightened, play to the camera, or become
from the mails, in the exercise of executive power, is nervous. They are subject to extraordinary out-of-
extremely delicate in nature and can only be court influences which might affect their testimony.
justified where the statue is unequivocably Also, telecasting not only increases the trial judge’s
applicable to the supposed objectionable responsibility to avoid actual prejudice to the
publication defendant, it may as well affect his own

Page 40 of 104
performance. Judges are human beings also and are -the court had to balance Enrile’s claim to the right
subject to the same psychological reactions as of privacy against the producer’s FOE. The court
laymen. For the defendant, telecasting is a form of began its disquisition with the assertion that FOE as
mental harassment and subjects him to excessive applicable to motion pictures:
public exposure and distracts him from the effective
presentation of his defense. The court would once more stress that this FOE
includes the freedom to film and produce motion
-The television camera is a powerful weapon which pictures and to exhibit such motion pictures in
intentionally or inadvertently can destroy an theatres or to diffuse them through television.
accused and his case in the eyes of the public.
Representatives of the press have no special Cited: Gonzales v Katigbak: motion pictures are
standing to apply for a writ of mandate to compel a important both as a medium for the communication
court to permit them to attend a trial, since within of ideas and the expression of the artistic impulse.
the courtroom, a reporter’s constitutional rights are In Burstyn v Wilson, the importance of motion
no greater than those of any other member of the pictures as an organ of public opinion lessened by
public. Massive intrusion of representatives of the the fact that they are designed to entertain as well
news media into the trial itself can so alter or as to inform.
destroy the constitutionally necessary judicial
atmosphere and decorum that the requirements of This freedom is available in our country both to
impartiality imposed by due process of law are locally owned and to foreign owned motion picture
denied the defendant and a defendant in a criminal companies. Yielding to profit is not a disqualification
proceeding should not be forced to run a gauntlet of for this freedom. To exclude commercially owned
reporters and photographers each time he enters or and operated media from the exercise of this
leaves the courtroom. freedom can only result to drastic contraction of
such constitutional liberties in our country.
-Considering the prejudice it poses to the
defendant’s right to due process as well as to the -against FOE must be balanced the right of privacy
fair and orderly administration of justice, and which is recognized by law as the right to be left
considering further that the freedom of the press alone. The court said:
and the right of the people to information may be
served and satisfied by less distracting, degrading A limited intrusion into a person’s privacy has long
and prejudicial means, live radio and television been regarded as permissible where that person is a
coverage of court proceedings shall not be allowed. public figure and the information sought to be
Video footages of court hearings for news purposes elicited from him or to be published about him
shall be restricted and limited to shots of the constitute matters of public character. Succinctly
courtroom, the judicial officers, the parties and their put, the right of privacy cannot be invoked to resist
counsel taken prior to the commencement of official publication and dissemination of matters of public
proceedings. No video shots or photographs shall be interest. The interest sought to be protected by the
permitted during the trial proper. right of privacy is the right to be free from
‘unwarranted publicity’, from the wrongful
-Accordingly, in order to protect the parties’ right to publicizing of the private affairs and activities of an
due process, to prevent the distraction of the individual which are outside the realm of legitimate
participants in the proceedings and in the last public concern.
analysis, to avoid miscarriage of justice, the Court
resolved to PROHIBIT live radio and television -clearly, Enrile was a public figure; he had no right to
coverage of court proceedings. Video footages of prevent publication of the story of his participation
court hearings for news purposes shall be limited in the event
and restricted as above indicated.
NOTE: there must be no presentation of the private
VI. MEDIA AND PIRACY life of the unwilling private respondent and certainly
no revelation of intimate or embarrassing personal
Ayer Productions v Capulong facts.

-the case involved the production of “the four day

revolution” a movie account of the bloodless coup VII. SUBSEQUENT PUNISHMENT: STANDARDS
that toppled the Marcos regime. (movie about Juan FOR RESTRAINT
Ponce Enrile)

Page 41 of 104
*FOE also means that there are limit to the power of
government to impose rules or regulations curtailing
freedom or speech and of the press.
Schenck v US
-Justice Holmes rejected the absolutist view of
freedom of speech saying that the haracter of every
act depends upon the circumstances in which it is People v. Feleo (1932)
done..
-the most stringent protection of free speech would
not protect a man in falsely shouting fire in a theatre
and causing a panic
*clear and present danger rule: test evolved in the
context of prosecutions for crimes involving
overthrow of the government, the test can be
applied to other substantive evils which the state
has the right to prevent even if these evils do not
clearly undermine the safety of the Republic
(8) The Constitutional Guarantee in Action:
Seditious speech
People v. Perez (1923- begins the line of
‘seditious tackling cases’)
- A decision of a nervous colonial govt.
disturbed by the unrest of the natives.
- Arose time when there was a great
dissatisfaction with the admin. Of Gov-Gen
Wood.
- In a pol. discussion that lacked the calm
detachment found in a graduate seminar,
citizen Perez had made this remark: “And the
Fil., like myself must use bolos for cutting off
Wood’s head for having recommended a bad
thing for the Phil.”
- Prosecuted for seditious speech,
PerezCONVICTED
- Justice Malcolm (court)  “Criticism, no
matter how severe, on the exec., legis., and
the judiciary, is within the range of liberty of
speech, unless the intention and effect be
seditious.”
- Malcolm found in them “a seditious tendency
w/c would easily produce disaffection among
the people and a state of feeling
incompatible with a disposition to remain
loyal to the govt. and obedient to the laws.
- That the char. Of the threatened
extermination of Wood was “so excessive
and outrageous” as to suggest that the
“superlative vilification” had “overleapt itself
and become unconsciously humorous (Taft’s
words in Balzac v. Puerto Rico)” did not
appeal to the sense of humor of the court.
- Malcolm wrote: “... We nevertheless
entertain the conviction that the courts
should be the 1st to stamp out the embers of
insurrection. The fugitive flame of disloyalty,
lighted by an irresponsible indiv., must be
dealt with firmly before it endangers the
general peace.”
- Arose out of Communist disturbances of the
early 30’s.
- Speaking before a group of about 100 or so,
among whom were soldiers of the Phil.
Constabulary, Feleo had made a special
appeal to the soldiers in the crowd urging
them to imitate the French solders, who shot
their chiefs, to desert their ranks, and to join
the Communists against Americans, to get
rid of their leaders and to take possession of
the haciendas of the rich landlords.
- Prosecuted for seditious utterances, Feleo
CONVICTED
- Justice Street (Borrowing from Gitlow v. New
York): “Words of this kind are properly
considered seditious because they tend to
incite the people to take up arms against the
constituted authorities and to rise against
the established govt.”
- Thus, the doctrine in Perez was given an
American garb – the “Dangerous Tendency
Rule”
- THE SPEECH IN SUBSTANCE SAID: “My bros.:
Nobody violates the law but he who makes
it; and it is necessary here; Russia is the 1st
country where the laborers have their
emancipation from oppression, imperialism,
and capitalism. It is necessary that all
property should be delivered tot eh govt. for
its admin., and from this we will see the
redemption of the Fil. People”
People v. Evangelista (1932) –In a public
meeting, Evangelista had read the Consti. and by-
laws of the Communist Party, had explained the
advantages of the Russian form f govt., and had
distributed pamphlets urging the seizure of the govt.
- Prosecuted for inciting to sedition,
Evangelista offered the defense that the
meeting was unaccompanied by public
disturbance.
- Court defense untenable (in view of the
doctrine laid down in the case of People v.
Perez)
- “It is not necessary that there should be any
disturbance or breach of the peace in order
that the act may come under the sanction of
the Penal Code It is sufficient that it incites
uprisings or produces a feeling incompatible
Page 42 of 104
 with the permanency of the govt. Nor can
the acts charged be considered as mere
exposition in astracto, coming within the
exemption set out in Gitlov. People of New
York.”
Espuelas v. People (1951) –decided under 1935
consti.
- Prosecution for inciting to sedition.
- Espuelas had his picture taken making it
appear that he was hanging lifeless at the
end of a piece of rope suspended from the
limb of a tree. He, was in fact, standing on a
barrel, He had then this picture published in
several papers of general circulation
accompanied by a letter whose gist contains
words (see p. 255 for whole letter)
- “My dear wife, if someone asks to you
why I committed suicide, tell them I did it
because I was not pleased with the
administration of Roxas. Tell the whole
world about this...point out to them the
situation in Central Luzon, the Leyte our
government is infested with many Hitlers
and Mussolinis...Teach our children to
burn pictures of Roxas...I committed
suicide because I am ashamed of our
government under Roxas... I cannot hold
high my brows to the world with this dirty
government.”
- Court <endnote: US v. Dorr – ‘The essence of
seditious libel may be said to be its
immediate tendency to stir up general
discontent to the pitch of illegal courses; that
is to say induce people to resort to illegal
methods other than those provided by the
Consti, in order to repress the evils w/c press
upon their minds’>  “letter is scurrilous
libel against govt. It calls our govt. one of
crooks and dishonest persons infested with
Nazis and Fascists (dictators). And the
communication reveals a tendency to
produce dissatisfaction or a feeling
incompatible with the disposition to remain
loyal to the govt. Writings w/c tend to
overthrow or undermine the security of the
govt. or to weaken the confidence of the
people in the govt. are against the public
peace, and are criminal not only because
they are conducive to the destruction of the
very government itself. Regarded as
seditious libels they were the subject of crim.
Proceedings since early times in England.”
- Dissent of J Tuason (w/ CF Paras and J Feria)
 ancient background of penal prov. on
seditious libel (just a gist – “Posses the
people with an ill opinion of the govt. is a
seditious libel...but no one would accept the
doctrine now. Unless the words used directly
tend to foment ...rebellion or disturb peace
and tranquility of the kingdom, the utmost
latitude is allowed in the discussions of all
public affairs. Judge Cooley says that English
common law w/c makes libels on the consti.
indictable seems to be unsuited to the
condition of and circumstances of people of
America and therefore never to have been
adopted in the several states.”)
Espiritu v. Lim (1991)
- <endnote: Since the arrest itself took place
sometime after the utterance was made, the
validity of the warantless arrest was
questioned in the dissenting opinions>
- Espiritu in the gathering of drivers and
sympathizers at the corner of Valencia St.
and Magsaysay Blvd., said among others:
“Bukas tuloy ang welga natin...hanggang
magkagulo na”.
- The facts, were similar to Perez
- Later, At a conference at the Natl. Press
Club, he called for a Nationwide strike.
- He was arrested w/o warrant, for inciting to
sedition
- Decision on habeas corpus petition, however,
touched only on the validity of the arrest w/o
warrant and said that while people may
differ as to the crim. Char. Of the speech, w/c
at any rate will be decided in court, for
purposes of the arrest, not for conviction,
there was sufficient ground for the officer to
believe that Espiritu was the act of
committing a crime.
(9) Id.; Contempt of court by publication
 The Freedom of the press to express in good faith
legal opinions on legal questions pending before the
Courts is guaranteed by the Consti.
US v. Bustos (1918)
- Justice Malcolm (the man who more than
any single American contributed most to
early consti.-devt. in the Phil.) asserted
that the guarantees of a free speech and
press include right to criticize judicial
conduct
- “The interest of society and the
maintenance of a good govt. demand a
full discussion of public affairs. Complete
liberty to comment on the conduct of
public men is scalpel in the case of free
speech. The sharp incision of its probe
relieves the abscesses of officialdom...A
public officer must not be too thin
skinned w/ reference to comment upon
his official acts.
Page 43 of 104
 - Note that in the decision that the official
‘contemned’ was not a member of the SC
but a judge of an inferior court
In Re Lozano and Quevedo (1930)
- contempt decision penned by Mr. Justice
Malcolm
- Arose out of an article published in ‘El
Pueblo’ (Iloilo newspaper) purporting to
relate the proceedings I an investigation
of district judge
- Investigation had been held behind
closed doors in compliance with a
resolution of the SC making such
investigations secret and confidential
- Editor of paper and author of the article
were cited for contempt
- Malcolm approached the case and w/ the
realization that English jurisprudence
supported SC and that American state
courts were divided on the subject and
that there was no authoritative Federal
Supreme Court decision he could rely
upon.
- “What is the best for the maintenance of
the judiciary in the Phil. Should be the
criterion. Here, in contrasts to the other
jurisdictions, we need not to be overly
sensitive because of the sting of
newspaper articles, for there are no juries
to be kept free from outside influence.
Here also we are not restrained by
regulatory law. The only law, and that
judge made, w/c is at all applicable to the
situation, is the resolution adopted by
this court.”
- Court proceeded Lozano and Quevedo
in CONTEMPT
- REASON for ruling: The SC resolution
requiring secrecy was intended as a
protection ‘against the practice of
litigants and others making vindictive and
malicious charges against lawyers and
judges of First Instances, w/c are ruinous
to the reputations of the respondent
lawyers and judges’. From that, it was
only 1 step to saying that “respect for the
Judiciary cannot be ahs if persons are
privileged to scorn a resolution of the
court adopted for good purposes....” And
disrespect, in the form of disregard of this
resolution, prevents the court from
proceeding ‘with the disposition of its
business in an orderly manner free from
outside interference obstructive of its
consti. functions.’
In Re Quirino (1946)
- To expedite the prosecution of the
numerous treason cases w/ arose out of
the war against Japan; a People’s court w/
special jurisdiction over the crime of
treason was established.
- A resolution of the 5th division of this
court denying bail to an accused was
reversed by the SC.
- 3 days after the reversal, Judge Quirino of
the 5th division openly criticized the action
of the SC before a group of
newspapermen.
i. Calling the decision the “biggest
blunder” and claiming that it
‘robbed’ the people’s court of its
jurisdiction,
ii. Accused the SC of lacking
‘intellectual leadership’
iii. Decision characterized as a result
of intellectual dishonesty and of
quantitative and not qualitative
voting
- Remarks were published in the local
dailies at a time when, technically, the
case was still pending before the SC
<Court had not yet written the extended
opinion w/c it announced would be given
and the case was still open to a motion
for reconsideration>
- Court  Quirino in CONTEMPT ( remarks
were merely ‘tended to embarrass this
Court’)
- Court said: “To be specific: At the time of
adopting the resolution, the majority
members made up their minds to
announce in the extended decision that,
as a general rule, in cases of abuse of
discretion in the matter of bail, our
judgment should be to return the case to
the People's Court with a direction for the
granting of bail; but in this particular
case, in view of the long process which
the petitioner had to undergo, the
majority thought it conformable to equity
and justice that she should be bailed
immediately. After the criticism had been
launched, it became a bit embarrassing
for said majority members to expound
that view in the full-dress opinion,
because the public might suspect they
had receded somewhat from their stand,
falsely represented as "robbing" the
People's Court of its power to grant bail.
Again, the minority members proposed to
question our authority directly to grant
bail. After Judge Quirino, without waiting
for their dissent, had publicly raised the
same doubt, said minority felt uneasy to
Page 44 of 104
 appear as taking the cue from him. And
so of other phases of the issue.”
In Re Subido (1948) – in relation with the case
above
- Article further said <In Re Subido-
1948>: “My informant told me that the
court held three sessions to deliberate on
this petition to withdraw. These sessions,
he said, were featured by tumultuous and
violent discussions among the justices.
He also told me that my series of
editorials attacking the
unconstitutionality of Justice Secretary
Ozaeta's order helped in a big way make
the justices decide against the
withdrawal. This official pointed out that
the position of the petitioner was strong
because the office of the solicitor general,
which represented the government in the
case, agreed to the withdrawal. Had the
withdrawal been allowed, my informant
indicated, the Supreme Court would have
culpably abdicated its important function
as guardian or protector of the Philippine
Constitution.”
- Turned out that Subido’s informant was
one of the Justices of the SC, who ‘leaked
out’ the information because he was
disturbed by the delay of the
promulgation of the decision.
- Court  Subido in CONTEMPT (based on
Torres ruling)
i. Although the information was
furnished by a member of the
court, it nonetheless was
unauthorized and therefore
constituted contempt
ii. That the article may have
hastened the promulgation of
the decision and thus In Re Sotto (1948)
forestalled certain evils was
not recognized as a valid
defense. Nor did the fact that
the source of the information
was a member of the Court
excuse the respondent
iii. His responsibility was
considered distinct from that of
the Justice concerned. And
newspaper should restrain the
desire to satisfy the public’s
yen for news <since the Phil.
Judiciary had been liberal to
the press, the latter should
reciprocate w/ respect>
In Re Parazo (1948) and
- Parts of the series of vindications of the
dignity of the SC, may even give the
impression that the final nails have been
driven into the coffin of critics of such an
august body.
- Angel Parazo, a reporter from “Star
Reporter”, had published an article
alleging that the Br exam questions for
the 1948 had leaked out. The exams were
conducted under direct supervision of the
Sc in the exercise of a consti. duty.
- The Court, ordered Parazo to reveal the
source of his information
- Court’s question  Parazo’s refusal 
declared him in CONTEMPT
- Court: “we have the inherent power of
courts in general, specially of the SC as
representative of the Judicial Dept., to
proper and adequate measures to
preserve their integrity, and render
possible and facilitate the exercise of
their functions, including, as in the
present case, the investigation of charges
of error, abuse and misconduct of their
officials and subordinates, including
lawyers, who are officers of Court”
<Parazo’s defense was the RA 53, sec. 1,
newspapermen could be compelled to
reveal the source of their news only when
revelation was demanded by the ‘interest
of the state’. He claimed that the ‘interest
of the state’ meant ‘security of the state’.
The court did not accept his defense.
Subsequent to and because of this
decision, Congress, by RA 1477, amended
the law to read ‘security of the State’
‘security of the state.’ The question may
therefore be asked whether such
amendment can affect what the court
claims to be its ‘inherent power’>
- Senator Vicente Sotto published an article
in the “Manila Times” w/ read partly as
follows: “I regret to say that our High
Tribunal... is once more putting in
evidence the incompetence or narrow
mindedness o the majority of its
members, In the wake of so many
mindedness of the majority deliberately
committed during these last years, I
believe that the only remedy to put an
end to so much evil, is to change the
members of the Supreme Court. To his
effect, I announce that one of the first
measures, which I will introduce in the
coming congressional sessions, will have
as its object the complete reorganization
of the Supreme Court. As it is now
Page 45 of 104
 constituted, the SC of today constitutes a
constant peril to liberty and
democracy...”
- Sotto went the way of Parazo
- Court unanimously said: “criticism or
comment on the correctness or
wrongness, soundness or unsoundness of
the decision of the court in a pending
case made in good faith may be
tolerated” and may even “enlighten the
court and contribute to the correction of
an error.” But “to intimidate the
members of this Court with the
presentation of a bill in the next
Congress” and falsely charge “that that
this Court has been for the last years
committing deliberately ‘so many
blunders and injustices,’ “constitute
contempt.
i. “As a member of the bar and an
officer of the courts Atty. Vicente
Sotto, like any other, is in duty
bound to uphold the dignity and
authority of this Court, to which he
owes fidelity according to the oath
he has taken as such attorney,
and not to promote distrust in the
administration of justice. Respect
to the courts guarantees the
stability of other institutions,
which without such guaranty
would be resting on a very shaky
foundation.”
Prelim. observations: note!
1. Only publication made during the pendency
of a case is punishable as contempt. A case
pending not only prior to the promulgation of
the decision but even after promulgation
when the possibility of reconsideration by the
same court <this & the preceding note seem
to indicate a tendency to prolong the
‘pending’ status of a case precisely for the
purpose of prosecution> still exists.
2. The only test conclusively established by the
SC decisions is the ‘dangerous tendency
rule’. However, in certain cases, involving
contempt of inferior courts, the ‘clear and
present danger rule’ has been given at least
a nodding assent <people v. Alarcon;
Cabansag case>
3. The danger guarded against in punishing for
contempt is either extraneous influence on
the court’s act of decision making or
disrespect and disobedience w/c can breed
popular distrust in courts and courts
decisions
4. In every case reaching the SC where the
questioned publication was alleged to be
contemptuous of the SC over its Justices, the
publication was contemptuous <exception
would be In Re Gomez, but the charges made
by respondent were not made in relation to a
pending case>; but in every case where an
inferior court or its judge was the target,
absolution followed.
5. In the early cases, where the rule for
contempt by publication was forged, reliance
was had on American state court cases and
on federal Supreme court cases decided at a
time when the guarantees of the 1st
amendment had not yet been recognized as
extending to state actions via the 14th
amendment <extension was made in Gitlow
v. New York, In Re Kelly>
6. At least 1 decision suggests that the
freedom of lawyers in relation to courts is
less than of the ordinary citizens.
From this, it should be reasonable to conclude that
the Court should exercise greater tolerance for
rhetorical effusions of lawyers such as those found
in the Ponce Enrile case. But the jealousy with w/c
the courts guards its dignity persists even under the
under the 1987 consti. Judicial tolerance of the court
was put to the test soon after the ratification of the
new Consti.
SEC. 4
(10) Purifying the Electoral Process
Gonzales v. COMELEC
- 1st of the series of cases designed to
maintain the purity and integrity of the
electoral process, set the tone for the
Court’s approach to subsequent cases
involving the same topic.
- RA 4880, amending the revised election
code, prohibited the too early nomination
of candidates & limited the period of
election campaign and partisan political
activity. The statute was challenged as a
violation of the rights of free speech, free
press, freedom of assembly and freedom
of assoc.
- Principal contention is this prov.
SEC 50-B. Limitation upon the period of
Election Campaign or Partisan Political
Activity. — It is unlawful for any person
whether or not a voter or candidate, or for
any group or association of persons, whether
or not a political party or political committee,
to engage in an election campaign or
Page 46 of 104
partisan political activity except during the
period of one hundred twenty days
immediately preceding an election for any
public office.
The term "Candidate" refers to any person
aspiring for or seeking an elective public
office, regardless of whether or not said
person has already filed his certificate of
candidacy or has been nominated by any
political party as its
The term "Election Campaign" or "Partisan
Political Activity" refers to acts designed to
have a candidate elected or not or promote
the candidacy of a person or persons to a
public office which shall include:
(a) Forming Organizations,
Associations, Clubs, Committees or
other groups of persons for the
purpose of soliciting votes and/or
undertaking any campaign or
propaganda for or against a party or
candidate;
(b) Holding political conventions,
caucuses, conferences, meetings,
rallies, parades, or other similar
assemblies, for the purpose of
soliciting votes and/or undertaking
any campaign or propaganda for or
against any candidate or party;
(c) Making speeches, announcements
or commentaries or holding interviews
for or against the election of any party
or candidate for public office;
(d) Publishing or distribution
campaign literature or materials;
(e) Directly or indirectly soliciting vote
and/or undertaking any campaign or
propaganda for or against any
candidate or party;
(f) Giving, soliciting, or receiving
contributions for election campaign
purposes, either directly or indirectly:
Provided, That simple expressions or
2 opinion and thoughts concerning
the election shall not be considered as
part of an election campaign:
Provided, further, That nothing herein
stated shall be understood to prevent
any person from expressing his views
on current political problems or
issues, or from mentioning the names
of the candidates for public office
whom he supports
- The law avoided the consti-objection
of vagueness (by enumerating the
acts included in the terms ‘election
campaign’ or ‘partisan pol.-activity’)
and at the same time enabled the
Court to take separate votes on the
enumerated acts and measure them
against the substantive evil the
prohibitions were intended to prevent.
J Sanchez described the evil in his
separate opinion  “Such (state)
authority here manifests itself in
legislation intended as an answer to
the strong public sentiment that
politics is growing into a way of life,
that political campaigns are becoming
longer and more bitter. It is a result of
legislative Appraisal that protracted
election campaign is the root of
undesirable conditions. Bitter rivalries
precipitate violence and deaths. Huge
expenditures of funds give deserving
but poor candidates slim chances of
winning. They constitute an
inducement to graft to winning
candidates already in office in order
to recoup campaign expenses.
Handouts doled out by and expected
from candidates corrupt the
electorate. Official duties and affairs
of state are neglected by incumbent
officials desiring to run for reelection.
The life and health of candidates and
their followers are endangered.
People's energies are dissipated in
political bickerings and long drawn-
out campaigns. 7 Indeed, a drawn-out
political campaign taxes the reservoir
of patience and undermines respect
of the electorate for democratic
processes. Sustained and bilious
political contests eat away even the
veneer of civility among candidates
and their followers and transplant
brute force into the arena.”
- Justice Fernando approached the question
through the clear and present danger test
whereas Justice Castro expressed
preference for balancing of interests test.
- Statute was upheld by divided vote
i. Par. A, B, F – upheld by vote of 6
to 5
ii. Par. C, d, E – 5 dissenters were
joined by 2 others for total of 7,
one short of the required 2/3 to
declare a statute unconstitutional
- explaining his switch to the side of the
dissenters in the vote on par. C, D, and E,
Fernando emphasized that the “scope of
the curtailment to which freedom of
expression may be subjected is not
foreclosed by the recognition of the
existence of a clear and present danger
Page 47 of 104
 of a substantive evil, the debasement of
the electoral process.”
- For him, these paragraphs prohibited
“what under the Constitution cannot by
any law be abridged”
- Justice Sanchez
i. Explaining his switch, the
vagueness of par. C, D and E
“opens wide latitude t law
enforcers. Arbitrary enforcement
of the letter of the law by an
expansive definition of election
campaign or partisan political
activity should not be branded as
improbable. For, political rivalries
spawn persecution. The law then
becomes an unwilling tool.”
ii. The Justices who concurred in the
result (4 members) preferred to
leave the statute well alone in
order to allow the courts of justice
“to hammer out the contours of
the statute case by case.
- Therefore (doctrinally speaking)
GONZALES v. COMELEC left the validity of
all the prohibitions open to re-
examination.
Badoy, Jr. v. COMELEC
- ISSUE Paragraph F of Sec. 12 of RA
6132 (COMELEC shall procure a free
space for all candidates to use and
anything outside it shall be unlawful)
- HELD (J. Makasiar)  The evident
purpose of this limitation, on the freedom
of the candidate or his sympathizer to
spend his own money for his candidacy
alone and not for the furtherance of the
candidacy of his opponents, is to give the
poor candidates a fighting chance in the
election. Neither it is true that the mere
mention of the poor opponent in the
same advertisement or paid article does
not by itself alone engender per feet
equality of chances; at least the chance
of the poor candidate for victory is
improved because thereby his name will
be exposed to the reading public in the
same article as that of the wealthy
candidate.
ABS- CBN v. COMELEC (2000)
- “Exit polls” are of recent origin in the
Adiong v. COMELEC (1992)
- Companion case of National Press Club
- HELD: COMELEC may not prohibit the
posting of decals and stickers of
candidates on ‘mobile’ places, public or
private. The portion of Sec. 11 of RA 6646
was declared unconstitutional for
infringing freedom of speech and for
being an undue delegation of rule making
authority.
- The prohibited acts were found to present
no substantial danger to the govt. and
thus the prohibition did not satisfy the
requisites of the clear and present danger
rule.
- The regulation strikes at the freedom of
an individual to express his preference
and, by displaying it on his car, to
convince others to agree with him.
- Prohibition was found to suffer from over
breadth
i. It encompassed the use of
privately owned property such as
vehicle
ii. Was an unreasonable restriction
on the use of the property
iii. Consti objective to give rich and
poor candidates equal opportunity
was not seen as served by the
prohibition of decals.
Sanidad v. COMELEC (1990)
- On the occasion of the ratification
campaign for the Autonomy Act for the
Cordillera, the COMELEC had issued a
resolution prohibiting columnists,
commentators and announcers from
using their columns or radio or television
time to campaign for or against the
plebiscite during the period of the
campaign.
- HELD: the authority given by the Consti
was over holders of franchises and that
the purpose was to assure candidates
equal opportunity and equal access to
media.
- Sanidad was not a candidate & in fact, in
a plebiscite, there are no candidates.
- Plebiscite issues are matters of public
concern. The people’s right to be
informed must be preserved. Moreover,
the people’s choice of forum for
discussion should not be restricted.
country. It is “a species of electoral
survey conducted by qualified individuals
or groups of individuals for the purpose of
determining the probable result of an
election by confidentially asking
randomly selected voters whom they
Page 48 of 104
 have voted for, immediately after they
have officially cast their ballots. The
results of the survey are announced to
the public, usually through the mass
media, to give an advance overview of
how, in the opinion of the polling
individuals or organizations, the
electorate voted”
- COMELEC, however, promulgated a
resolution restraining ABS- CBN or any
other groups, its agents or reps. From
conducting such exit survey.
- ABS-CBN challenged the resolution- as
violative of freedom of expression.
- HELD (in favor of the broadcast
company): “The holding of exit polls and
the dissemination of their results through
mass media constitute an essential part Virginia State Bd. Of Pharmacy v. Virginia
of the freedoms of speech and of the Citizens Consumer Council (1976)
press. Hence, the Comelec cannot ban
them totally in the guise of promoting
clean, honest, orderly and credible
elections. Quite the contrary, exit polls --
properly conducted and publicized -- can
be vital tools in eliminating the evils of
election-fixing and fraud.”
Social Weather (SWS) v. COMELEC (2001)
- another landmark decision on media and
electoral process.
- SWS brought action for prohibition to
enjoin COMELEC from enforcing Sec 5.4
of RA 9006 (Fair Election Act) w/c provide
that  Surveys affecting national
candidates shall not be published fifteen
(15) days before an election and surveys
affecting local candidates shall not be
published seven (7) days before an
election.
- HELD: Court saw the law as a form of
prior restraint thus presumed to be
INVALID. The grant of power to the
COMELEC under Art. IX-C Sec 4 was Central
limited to ensuing equal opportunity, Commission (1980)
time, space and the right to reply’ as well
as uniform and reasonable rates of
charges for the use of such media
facilities for ‘public info. Campaigns and
forums among candidates’.
(11) Commercial Speech
Commercial Speech- simple means communication
whose sole purpose is to propose a commercial
Valentine v. Chrestensen (1942)
- ISSUE: An ordinance banning distribution
in the streets of printed handbills bearing
commercial advertising material.
- HELD (in favor of the ban): “It is enough
for the present purpose that the
stipulated facts justify the conclusion that
the affixing of the protest against official
conduct to the advertising circular was
with the intent, and for the purpose, of
evading the prohibition of the ordinance.
If that evasion were successful, every
merchant who desires to broadcast
advertising leaflets in the streets need
only append a civic appeal, or a moral
platitude, to achieve immunity from the
law's command.”
- consti. protection of commercial
advertising was recognized
- involved the advertising of prescription
drugs and affirmed that commercial
advertising enjoyed 1st Amendment
protection.
- Advertising, however tasteless and
excessive it sometimes may seem, is
nonetheless dissemination of information
as to who is producing and selling what
product, for what reason, and at what
price. It is a matter of public interest that
those decisions, in the aggregate, be
intelligent and well informed. To this end,
the free flow of commercial information is
indispensable
Commercial Speech- has not been accorded the same
level of protection as that given to what is called ‘core’
speech such as political speech.
Hudson Gas v. Public Service
- Set down the requirements for the
protection of commercial speech:
i. Speech must not be false/
misleading/ proposing an
illegal activity
ii. Governmental interest sought to
be served by the regulation must
be substantial
iii. The regulation must directly
advance the govt. interest
iv. Regulation must not be
overbroad
Page 49 of 104
Pharmaceutical v. Secretary of Health (2007) response to duty but merely to injure the reputation
- The court found ad absolute ban on of the person who claims to have been defamed.”
advertising breast milk substitutes as But if speech is not malicious even if defamatory, it
unduly restrictive and as more than
is privileged.
necessary to further the avowed
governmental interest of promoting the
health of infants and young children. BORJAL VS. COURT OF APPEALS (1999)
- Additional details 
The rule on privileged communication is found in
Article 354 (2) of the RPC. Article 354, however, is
(12) UNPROTECTED SPEECH: LIBEL not an exclusive list of qualifiedly privileged
communications since fair commentaries on matters
Both historically and doctrinally, freedom of of public interest are likewise privileged. The
expression has never been understood to be an concept of privileged communications is implicit in
absolute right. the freedom of the press. Fair commentaries on
matters of public interest are privileged and
Two types of unprotected speech have in fact
constitute a valid defense in an action for libel or
received considerable attention from the courts:
slander.
1. Libel; and
Thus, it is immediately obvious that in the matter of
2. Obscenity libel there is no occasion for choosing between the
“clear and present danger rule” or the “dangerous
Thus, in dealing with them there is no call for the tendency rule.”
application of the clear and present danger
rule or the dangerous tendency rule or the The characterization of libel as constitutionally
balancing of interests test because these are unprotected speech is easily understandable when
essentially methods of weighing competing values. the object of vilification is not a public figure. A
But that is not the end of the problem; it is merely private person is entitled to the protection of his
the beginning. For there still remains the reputation, and the stupidity or immortality of his
complicated task of discovering the norms for acts affecting only his private life are not of vital
determining what speech is libelous or what speech concern to the common weal.
is obscene.
But when a person becomes a public figure, either
The jurisprudence on libel has developed around the as an occupant of or an aspirant to a public office,
statutory provisions on the subject with only the wisdom or unwisdom of his actions and the
occasional excursions to constitutional issues. Libel absence or abundance of his mental and moral
is defined in Article 353 of the RPC thus: qualifications for office, are of vital concern to the
public.
A libel is a public and malicious imputation of a
crime, or of a vice or a defect, real or imaginary, or Hence, it is in this area of the libel law that the
any act, omission, condition, status, or circumstance constitutional guarantee of freedom of expression
tending to cause the dishonor, discredit, or deserves to be carefully guarded. Two early cases
contempt of a natural or juridical person, or to serve to illustrate the allowable limits of criticism of
blacken the memory of one who is dead. public figures.

There is libel when the imputation is public and

malicious. Publicity means “making the
defamatory matter, after it has been written, known US VS. SEDAÑO (1909)
to someone other than the person to whom it has
The subject of the prosecution was an article
been written.
criticizing Rafael Palma, incumbent delegate to the
It is malicious “when the author of the imputation is Philippine Assembly and, at the time of the
prompted by ill-will or spite and speaks not in publication, a candidate for re-election.

Page 50 of 104
The Court enunciated the rule relative to candidates
thus: Such comment or criticism, if defamatory in its
nature, constitutes a criminal libel if it appears that
it was actuated by actual or express malice; that
from the very nature of the privilege claimed the
freedom of such criticism is necessarily limited to
fair comment. Fair comment being comment which
is true, or which, if false, expresses the real opinion
of the author, such opinion having been formed with
a reasonable degree of care and on reasonable
grounds; and that such criticism cannot be used as a
cloak for malicious assaults on the private life and
character of the person criticized.
The accused was convicted.
When the object of criticism is his strictly private
life, defamatory imputations are not constitutionally
protected expression.
When, however, his public acts are the object of
criticism, constitutionally immunity applies. SEDAÑO
says that “public acts of public men may lawfully be
made the subject of comment and criticism.”
When such comment or criticism is done in good
faith, it is privileged. CONTRERAS even goes a step
further in that it protects criticism of official acts
even when the criticism is done in bad faith: “They
may destroy by fair means or foul, the whole fabric
of his statesmanship.”

When, finally, the object of the criticism is a public

person’s “mental, moral or physical fitness” for
PEOPLE VS. TITULAR (1927) office, criticism, while liberally treated, enjoys
constitutional protection only when it is fair.
Upheld by the decision was a statute which
punished anonymous criticism of candidates by And SEDAÑO says that fair criticism means
means of posters and circulars. What it intended to comment “which is true, or which, if false, expresses
punish, said the Court, was the anonymous the real opinion of the author, such opinion having
character of the criticism. Such criticism, according been formed with a reasonable degree of care and
to the Court, tended to mislead the voters and on reasonable grounds.”
tended to injure and defeat a candidate while at the
same time denying him the opportunity of searching True criticism, therefore, of a person’s fitness for
out his detractors and answering them. office is always fair and, therefore, privileged; false
criticism is not privileged if malicious, that is, when
used as a cloak for assaults on a person’s private
life.
US VS. CONTRERAS
Hence, good faith is always a valid defense in a suit
The case was one of libel of the governor of the for defamatory imputations against a person’s
province of Ambos Camarines. In convicting the moral, mental or physical fitness for office.
author of the publication, the Court said:
The early Philippine cases on libel were decided
Men have the right to attack, rightly or wrongly, the under Act No. 277, the Libel Law in effect prior to its
policy of a public official with every argument which incorporation into the RPC. Three sections of this law
ability can find and ingenuity can invent. But the law are important for an understanding of the role of
does not permit men falsely to impeach the motives, malice or absence of good faith in libel prosecutions.
attack the honesty, blacken the virtue, or injure the
reputation of that official. Section 3 apportioned the burden of proof: “An
injurious publication is presumed to have been
What the Court has done in these two cases is to malicious if no justifiable motives for making it are
compartmentalize the life of a public figure into 3 shown.”
possible objects of criticism: 1) his public and
official acts; 2) his “mental, moral, and Section 4 set out the requisites for a valid defense:
physical fitness” for office; 3) his strictly “In all criminal prosecutions for libel the truth may
private life. be given in evidence to the Court, and if it appears
to the Court that the matter charged as libelous is
true and was published with good motives and for

Page 51 of 104
justifiable ends, the party shall be acquitted;
otherwise, he shall be convicted; but to establish
this defense, not only must the truth of the matter
so charged be proven but also that it was published
with good motives and for justifiable ends.”
Section 9 contained the provision on “privilege:” A
private communication made by any person to
another in good faith, in the performance of any
duty, whether legal, moral, or social, solely with the
fair and reasonable purpose of protecting the
interests of the person making the communication,
or in the interest of the person to whom the
communication is made, is a privileged
communication, and the person making the same
shall not be guilty of libel within the provision of this
Act.
By a laborious process of interpretation of the
apparent clash of privileged and presumption in
these three sections of the Libel Law, the Court
arrived at what basically is still the present doctrine
on libel.
US VS. LERMA (1903)
[This case created some confusion.]
The case was a prosecution arising out of a petition
written by the defendant to the local justice of the
peace. Several criminal cases were at that time
pending against the defendant before this same
judge. The petition state that it was rumored that a
plan had been formed to prosecute the petitioner for
the purpose of discrediting his candidacy for the
governorship of the province. He attributed the
rumored prosecutions to the malicious machinations
of certain provincial officials. He considered the
rumored accusations fabricated and the testimonial
affidavits extorted.
From the evidence presented during the trial, the
Court concluded that “the circumstances of the case
showed quite conclusively that the sole motive of
the defendant in presenting the petition was to
defend himself against those charges.
Under Section 3 of the Libel Law - the existence of Then the prosecution must come up with proof of
justifiable motives was an absolute defense. malice in fact to rebut the prima facie proof of
justifiable motives. “When malice in fact is shown to
The accused was therefore acquitted. exist the publisher cannot be relieved from liability
by a pretense of ‘justifiable motives.’
In refusing to consider the truth or untruth of the
allegations of Lerma, did the Court run counter to
the requisites for a valid defense in Section 4 of the
Libel Law?
It seems that it did not. A careful reading of Section
4 will reveal that it does not require truth as an
essential element for a valid defense. What it does
say is that truth alone, unaccompanied by good
motives and justifiable ends, is not sufficient
defense.
But was it not said in the analysis of the SEDAÑO
case that true criticism of a person’s fitness for
office is always fair and therefore a valid defense by
itself?
The meaning of this conclusion in the analysis of the
Sedaño case is that truth of the criticism of a
person’s fitness for office justifies itself because of
the public interest in the preservation of the
integrity of the office.
While the conclusion arrived at in US VS. LERMA was
sound, it was unfortunate in that the conclusion was
reached by looking to Section 3 alone and seeing in
it the establishment of “justifiable motives” as an
absolute defense. This view of Section 3 may
perhaps be attributed to the misleading
awkwardness of its formulation. But its proper role in
libel prosecutions seems to have been better
understood in the 1909 case of US VS. BUSTOS.
US VS. BUSTOS (1909)
This was a prosecution for a written statement made
to the Secretary of Justice impeaching the honesty
and reputation of a judge and a fiscal. Bustos
admitted that the letter was defamatory in content
but he claimed that the communication was
privileged because it was done in good faith.
The Court answered that it was not an initial
showing of justifiable motive. If justifiable motives
were shown, the only effect this had was to rebut
the prima facie presumption of malice in law.
Page 52 of 104
Court found that there was malice in fact because
during the trial the defendant had admitted that “he
had personally made no investigation with reference
to the truth of the statements made in said
communication.”
US VS. BUSTOS (1918)
The charges which were made the basis of the
prosecution for libel were misfeasance and
malfeasance in office. These charges, accompanied
by affidavits, were sent to the Executive Secretary.

This time the Court said: We do not have at present

a simple case of direct and vicious accusations
published in the press, but of charges predicated on
affidavits made to the proper official and thus
qualified privileged. Express malice has not been
While the BUSTOS decision was not unanimous, the
proved by the prosecution. Further, although the
objection raised by the dissent was against the
charges are probably not true as to the justice of the
interpretation given to the “qualified privilege”
peace, they were believed to be true by the
found in Section 9.
petitioners. Good faith surrounded their action.
The purpose of Section 9, according to the majority, Probable cause for them to think that malfeasance
“was to permit all interested persons or citizens with in office existed is apparent. The ends and the
grievances, to freely communicate, with immunity, motives of these citizens- to secure the removal
to the persons who could furnish the protection from office of a person thought to be venal- were
asked for, requiring, however, at all times that such justifiable. In no way did they abuse the privilege.
petitions or communications shall be made in good
How did this differ from the first Busto case?
faith or ‘with justifiable motives.’
The Court said: “…in the Julio Bustos case we find
The majority, however, did not consider the
wild statements, with no basis in fact, made against
Secretary of Justice a person who could give the
reputable members of the judiciary, ‘to persons who
relief expected. Moreover, the Court said that the
could not furnish protection.’”
publication had not been made, in the language of
the statue, “for the sole purpose of protecting the US VS. CAÑETE
interests of the Secretary of Finance and Justice, to
whom it was made,” but merely to have one “Jose The privilege was applied to communication to
Rivera brought to trial upon a charge of the crime of religious superior.
robbery.”
The present law on presumption of malice and on
The burden of Justice Carson’s dissent in Bustos was qualified privilege is now found in Article 354 of
that the decision placed “almost insurmountable the RPC. It reads:
difficulties in the way of clean administration of
government in these Islands, and materially Every defamatory imputation is presumed to be
abridged the right of the people to petition the malicious, even if it be true if no good intention and
Government for redress of grievances, and seek justifiable motive for making it shown, except in the
relief from the abuses at the hands of those set in following cases:
authority over them.
1. A private communication made by any person to
Carson suggested that the accused, as a citizen of another in the performance of any legal, moral, or
the province and as a litigant in the courts of that social duty; and
province, had an interest in the removal of
incompetent and corrupt officials in the judiciary.

A second Bustos case came nine years later, and its

view on qualified privilege was along the lines of
Carson’s thinking.

Page 53 of 104
2. A fair and true report, made in good faith, without relating to his official conduct unless he proves that
any comments or remarks, of any judicial, the statement was made with ‘actual malice’- that
legislative, or other official proceedings which are is, with knowledge that it was false or with reckless
not of confidential nature, or of any statement, disregard of whether it was false or not.”
report, or speech delivered in said proceedings, or of
any other act performed by public officers in the Fernando also agreed with the later rule in CURTIS
exercise of their function. PUBLISHING CO. VS. BUTTS (1967) extending
the New York Times rule to statements referring to
3. Borjal case: fair comments on matters of public public figures regardless whether or not they are
interest public officials. The rationale behind this rule is that,
in the discussion of public issues, the issues cannot
The Court had occasion to apply this provision in the be fully meaningful unless reference is made to the
next case and the results are not too encouraging men involved on both sides who may not necessarily
for the Philippine press. be public officials.

POLICARPIO VS. MANILA TIMES PUBLISHING Nonetheless, Fernando awarded damages in this
CO. (1962) action for libel arising from the publication in a
weekly magazine of plaintiff’s photograph
Policarpio was Executive Secretary of the UNESCO. erroneously captioned as that of the person
In that capacity, she worked under the Executive responsible for a widely publicizes hoax. In
Office of the Philippine government. An article was justification of the award, Fernando said: “Here
published in the Saturday Mirror imputing various there was no pressure of a daily deadline to meet,
acts of dishonesty to her, much of which were no occasion to act with haste as the picture of
untrue. respondent was published in a weekly magazine.”
Policarpio sued for damages and the Court, finding
The privilege protected under the New York Times
for her, said: It goes without saying that newspapers
case was conditioned upon the status of the
must enjoy a certain degree of discretion in
complainant, that is, that he be a public officer.
determining the manner in which a given event
should be presented to the public, and the Butts extended the rule to statements affecting
importance to be attached thereto as a news item, public figures.
and that its presentation in a sensational manner is
not per se illegal. To enjoy immunity, a publication As to Philippine jurisprudence, however, the
containing derogatory information must be not only general rule remains: every defamatory
true but, also, fair, and it must be made in good imputation is presumed to be malicious.
faith and without comments or remarks.
But the New York Times rule was finally accepted in
Borjal vs. Court of Appeals and Jalandoni vs. Drilon

LOPEZ VS. COURT OF APPEALS JAL VS. SIMANGAN (April 2008)

[Penned by Justice Fernando; does not depart from Public officials must prove actual malice in order to
the Policarpio rule] recover damages for alleged libel. The rule on
privileged commentaries on matters of public
Here Fernando takes his turn to play the part of interest applies to it. The privilege applies not only
Byron’s Julia saying: “I’ll ne’er consent” but to criticism of public officials but extends to the
nonetheless consenting. Fernando quoted with criticism of a great variety of subjects, and includes
approval the rule established in the landmark case matters of public concern, public men, and
of NEW YORK TIMES VS. SULLIVAN (1964): candidates for office.”

“The constitutional guarantees require, we think, a

federal rule that prohibits a public official from 13. Unprotected speech: obscenity
recovering damages for a defamatory falsehood

Page 54 of 104
-there were three reported decisions on this matter are not in a position to resist and shield themselves
a. People v Kottinger from the ill and preventing effects of these
b. People v Go Pin pictures.”
c. People v Padan
-thus, the outcome is made to depend not so much
-in words of Supreme Court, the words obscene or on the character of the object itself as on the
indecent are themselves descriptive; they are words manner of purveyance and on the intended
in common use and every person of average audience.
intelligence understands their meaning
-the second contribution of the Go Pin cases is its
Kottinger Case recognition of redeeming aesthetic values
-made an attempt in defining by borrowing from
American Jurisprudence -it recognizes that there are people who can
perceive “the element of art” and derive legitimate
-the word obscene and the term obscenity may be aesthetic “inspiration in the showing of pictures in
defined as meaning something offensive to chastity, the nude, or the human body exhibited in sheer
decency or delicacy nakedness as models or in tableaux vivants.”

-the word indecency is an act against good

behaviour and a just delicacy Padan Case
-does not help to clarify this question in spite of its
-this case’ chief contribution to Philippine reiteration of the theory of redeeming values.
Jurisprudence consists in the obscenity tests which it
likewise borrowed from American jurisprudence: -the defendants in this case were prosecuted for
performing carnal intercourse for the benefit of
...the test ordinarily followed by the courts..is paying viewers
whether the tendency of the matter charged as
obscene is to deprave or corrupt those whose minds -the court concluded that the act inspired and
are open to such immoral influences and into whose caused “nothing but lust and lewdness” and
hands a publication or other article charged as therefore, was obscene
being obscene may fall. Another test of obscenity is
that which shocks the ordinary and common sense Interstate Circuit, Inc v Dallas
of men as an indecency. -a survey of American material on what Justice
Harlan has characterized as “the intractable
People v Go Pin obscenity problem” should help underscore the
-has two noteworthy contributions to offer: delicate problem of balancing freedom speech and
1. relative theory of obscenity of the press against the duty of the state providing a
2. theory of redeeming social values wholesome atmosphere of public morality

-the case involved movie shorts which the lower Roth v United States
court characterized as possessing “only slight -established “that obscenity is not within the area of
degree of obscenity, indecency and immorality.” constitutionally protected speech or press”

-in upholding the lower court’s decision, the SC -the SC defined obscenity as “material which deals
made these observations on the exhibition of nudes: with sex in a manner appealing to prurient interest”.
The court likewise cited Webster’s definition of
... the pictures here in question were used not “prurient”: “...itching, longing; uneasy with desire or
exactly for art’s sake but rather for commercial longing; of persons, having itching, morbid, or
purposes. In other words, the supposed artistic lascivious longings; of desire, curiosity, or
qualities of said pictures were being commercialized propensity, lewd...”
so that the cause of art was only of secondary or
minor importance. -the SC put an end to all doubts by branding the
“isolated passages test” as unconstitutionally
-the court further said that those who went to see restrictive of the freedom of speech and the press in
the pictures upon payment of a fee were most likely that is “might well encompass material legitimately
more interested in “satisfying their morbid curiosity treating of sex.”
and taste, and lust, and love for excitement,
including youth who, because of their immaturity,

Page 55 of 104
-it likewise accepted that definition of obscenity -the CA had upheld the banning of the French movie
suggested in the American Law Institute’s Model version of H.D. Lawrence’s “Lady Chatterley’s Lover”
Penal code: because, although not obscene, it “alluringly
portrays adultery as proper behaviour” and as “right
...a thing is obscene if, considered as a whole, its and desirable for certain people under certain
predominant appeal is to prurient interest, i.e. a circumstances.”
shameful or morbid interest in nudity, sex, or -the SC accepted these findings but refused to ban
excretion, and if it goes substantially beyond the picture.
customary limits of candor in description or - Constitutional guarantee is not confined to the
representation of such matters.. expression of ideas that are conventional or shared
by a majority. It protects advocacy of the opinion
that adultery may sometimes be proper, no less
than advocacy of socialism or the single tax.
Regina v Hicklin
-arose out of a prosecution for obscene libel for the -the court however, admitted two limitations to this
publication of an anti-Catholic piece entitled “The rule: (1) the advocacy must not be conducted in a
Confessional Unmasked,” Lord Cockburn wrote out manner that is itself obscene (2) such advocacy to
the verbal formula now known as the Hicklin rule: be constitutionally protected, must not amount to
incitement to immediate illegal action.
I think the test of obscenity is this, whether the
tendency of the matter charged as obscene is to In other words, if the advocacy itself is not
deprave and corrupt those whose minds are open to conducted in a manner that is obscene, the “clear
such immoral influences, and into whose hands a and present danger rule” has no place because
publication of this sort may fall obscenity is not constitutionally protected.

*the Hicklin rule, moreover, as adopted by some

American Courts, admitted the “isolated passages
test,” i.e. a book could be rejected on the basis of
isolated obscene passages without regard to the
total effect of the entire work.
*with the “susceptible person test” and the “isolated
passages test” of the Hicklin rule rejected, the Roth
and Alberts opinion adopted as its own test which
many American courts had already been using:
whether to the average person applying
contemporary community standards, the dominant
theme of the material takes as a whole appeals to
prurient interest.”
*the judge’s instruction to the jury in the Roth case, sharply departed from Roth in the direction of
reproduced by the SC, explains the test well:
-to sum up then, by the Roth-Alberts opinion three
rules were definitely established: 1. Appeal to
prurient interest must be measured by the effect of
the work not on susceptible persons but on the
average person 2. The material must exceed the
limits of tolerance imposed by contemporayry
standards of the community with respect to freedom
of expression in matters concerning sex 3. The
material must be judged by its dominant theme as
whole and not by isolated passages.
Memoirs v Massachusetts
-the court reformulated the test in a manner that
greater liberality.

Three elements must coalesce: it must be

The test in each case is the effect of the book, established that (a) the dominant theme of the
picture or publication considered as a whole, not material taken as a whole appeals to a prurient
upon any particular class, but upon all those whom interest in sex (b) the material is patently offensive
it is likely to reach. In other words, you determine its because it affronts contemporary community
impact upon the average person in community. The standards relating to the description or
books, pictures, and circulars must be judged as a representation of sexual matters; and (c) the
whole, in their entire context, and you are not to material is utterly without redeeming social value.
consider detached or separate portions in reaching
a conclusion. You judge the circulars, pictures and -seven years later, the court admitted that Memoirs
publications which have been put in evidence by test was unworkable
present- day standards of the community.
Miller v California
Kingsley Pictures v N.Y. Regents

Page 56 of 104
-the basic guidelines for the trier of facts must be:
(a) whether “the average person, applying
contemporary community standards’ would find that
the work, taken as a whole, appeals to the prurient
interest... (b) whether the work depicts or
describes, in a patently offensive way, sexual
conduct specifically defined by the applicable state
law, and (c) whether the work, takes as a whole,
lacks serious literary, artistic, political, or scientific
value.
and petition, was willing to allow for a certain
amount of disorder. But the utmost discretion must
be exercised in drawing the line between disorderly
conduct and seditious conduct and between an
essentially peaceable assembly and a tumultuous
uprising.
Primicias v Fugoso
-decided under the 1935 constitution

-Miller also clarified the meaning of community -petition for mandamus instituted by Cipriano
standards, it said that although fundamental First Primicias, campaign manager of the Coalesce
Amendment limitations on the powers of the State Minority Parties, against Mayor Valeriano Fugoso of
do not vary from community to community...this Manila to compel him to issue a permit for the
does not mean that there are, or should or can be, holding of a public meeting at Plaza Miranda.
fixed, uniform national standards of precisely what
appeals to the “prurient interest” or is “patently -the meeting was to be an indignation rally in
offensive.” These are essentially questions of fact, protest against the alleged fraud committed by the
and our nation is simply too big and too diverse for Liberal Party in the recent elections.
this Court to reasonably expect that such standards
could be articulated for all 50 States in a single -in rejecting the Mayor’s contention, the Court said
formulation... To require a State to structure that the right of the applicant to a permit was
obscenity proceeding around evidence of a national subject only to the Mayor’s “reasonable discretion to
community standard would be an exercise in futility. determine or specify the streets or public places to
be used for the purpose, with a view to prevent
-the Miller doctrine was followed for movies in confusion by overlapping, to secure convenient use
Gonzales v Kalaw of the streets and public places by others, and to
provide adequate and proper policing to minimize
Pita v CA the risk of disorder.”
-the court did not offer standards but said that for
the purpose of determining whether to issue a
warrant for the seizure of obscene publications, the Navarro v Villegas
authorities must convince the court that the - Student leader Navarro had asked Manila Mayor
materials sought to be seized are “obscene” and Antonio Villegas for a permit to hold a rally on a
pose a clear and present danger of an evil week-day at Plaza Miranda.
substantive enough to warrant State interference
and action. Using his sound discretion, the judge - the Mayor was willing to allow a rally at Plaza
must determine whether the material is obscene. Miranda on a Saturday, Sunday, or holiday; but for a
But if obscenity is not protected speech, why appeal week-day rally the Mayor offered the Sunken
to the clear and present danger test? Gardens as an alternative location.
- HELD: the Mayor possessed “reasonable discretion
to determine or specify the streets or public places
14. Miscellany on Freedom of Expression to be used for the assembly in order to secure
convenient use thereof by others and provide
adequate and proper policing to minimize the risks
15. Assembly and petition of disorder and maintain public safety and order.
- Dangerous tendency
- Clear and present danger JBL Reyes v Mayor Bagatsing
- Balancing of interest
-Retired Justice JBL Reyes, in behalf of the Anti-bases
coalition, sought a permit from the Mayor of Manila
US v Apurado for the use of the empty field in front of the Luneta
-involved a spontaneous gathering of some five Grandstand and Roxas Boulevard in front of the US
hundred men to demand the ouster of certain embassy on October 26, 1983, from 2 to 5pm. The
municipal officials. No permit was involved. But the Mayor refused the permit (1) because his office was
significant point was that, in prosecution for “in receipt of police intelligence reports which
sedition, the Court, invoking the right of assembly strongly militate against the advisability of issuing

Page 57 of 104
such permit at this time at the place applied for”
and (2) because Ordinance No. 7295, in accordance
with the Vienna Convention, prohibits rallies or
demonstrations within a radius of 500 feet from any
foreign mission or chancery. Should permit be
granted?
was in effect in the Philippines. Thus, of the offenses
enumerated in the chapter of the Penal Code
entitled “Crimes against Religion and Worship,” six
specifically and solely referred to crimes against the
state religion.

-the SC found vigor to say that permit should be

granted. In sum the Court said: (1) to justify (2) Free exercise & non-establishment of
limitations on freedom of assembly there must be religion: In general
proof of sufficient weight to satisfy the “clear and
present danger test;” (2) there was no showing that 1935 Consti. Sec 1 (7) of the Bill of rights:
the distance between the chancery and the gate is
less than 500 feet. And even if it were, the
ordinance would not be conclusive because it still
must be measured against the requirement of the “No law shall be made respecting an establishment
Constitution.
of religion, or prohibiting the free exercise thereof,
and the free exercise and enjoyment of religious
US v Grace profession and worship, without discrimination or
-the question raised was whether the curtailment on preference, shall forever be allowed. No religious
communicative activity and assembly could be test shall be required for the exercise of civil or
applied to “sidewalks” immediately outside the SC political rights.”
grounds. The US Court considered the proscription
unconstitutional when applied to sidewalks.

-the Court characterized the sidewalks immediately
outside the SC building as a “public place” like
streets and parks historically associated with the
free exercise of expressive activities. They are
considered without more to be “public forums.” The
Court said: In such places, the government’s ability
to permissively restrict expressive conduct is very
limited: the government [that is, Congress] may
enforce reasonable time, place, and manner
regulations as long as the restrictions are content-
neutral, are narrowly tailored to serve a significant
government interest, and leave open ample
alternative channels of communication.”
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 OF
PREFERENCE, SHALL FOREVER BE ALLOWED.
NO RELIGIOUS TEST SHALL BE REQUIRED FOR
THE EXERCISE OF CIVIL OR POLITICAL RIGHTS.
1. Jurisprudence before the 1935 Constitution
-under the Spanish Constitution of 1876, Catholicism
was the state religion and Catholics alone enjoyed
the right of engaging in public ceremonies of
worship.
- As the established church, Catholicism was
protected by the Spanish Penal Code of 1884, which
 Effectively transplanted the American prov. &
earlier Phil. Organic law and jurisprudence- except
to the extent that they are modified, if indeed they
are modified, by the ‘concessions indiscriminately
granted’.
• Focus
o “concessions...indiscriminately
accorded to religious sects and
denominations” (As called by Justice
Laurel; Aglipay v. Ruiz, 1937) :
• Tax emption of prop. Devoted
exclusively to religious use
• Salary for priests and ministers
in chaplaincy service
• Optional religious instruction in
the public schools
• 1973 Consti.  Preserved the basic 1935 text
by reproducing it as Sec. 8 of Art. IV
o ‘Concessions...indiscriminately
accorded to religious sects and
denomination’ were preserved but
with some modifications w/c will be
noted in their proper place.
o Art. XV, Sec. 15 (borrowing the
language of President McKinley’s
Instruction and of Justice Trent) stated
 “The separation of church and state
shall be inviolable”
Page 58 of 104
 o THEREFORE, the 1973 Consti.
Preserved earlier church and state
doctrine w/ revolved around the free
exercise and non-establishment
clauses.
 Except for some changes on
the religious instruction in
public schools.
• Additional sentence “The State, however,
welcomes the cooperation of the church and
religious bodies to promote the well-being of CASES attempting to define constitutionally
the citizens” was rejected . (Proposed by protected religion:
Bacani, resisted by Bernas)
o Even if salutary on its face, the
language could be taken as an Torcaso v. Watkins (1961)
unnecessary if not dangerous
invitation to excessive entanglement
of church with state and vice versa.
Twin Clauses:
1. Free Exercise
2. Non-establishment clause
• Both express the underlying relational
concept of the separation of the church and
the State.
• Relation not immobile concepts (need for
continuing re-examination) because...
• Terms dealt with
o On one hand, the human experience
expressed by the word ‘religion’
o On the other, Proper actions within
the domain of the state
• Modern Society  faced w/ the phenomenon
of expanding govt. reaching out its
regulatory arm to an ever growing
articulation and acceptance of an expanding
concept of religion.
• TWO TERMS  Conflict more often
o Tension exists between the free
exercise and Non-establishment
clauses
• Literal interpretation does not suffice be
based NOT SOLELY on the phraseology but
especially on the SOCIETAL VALUES these
prov. are intended to protect.
• Conceptual Problem common to the 2 (3) The free exercise of clause
clauses definition of RELIGION for the
constitutional purposes.
• “The determination of whether a certain
ritual is or not a religious ceremony must rest
with the courts” (Gerona v. Sec. of
Education, 1959)
• Traditionally def. couched on theistic terms
o Has “reference to one’s view of his
relations to his creator, and to the
obligations that they impose of
reverence for his being and character,
and of obedience to his will” (Davis v.
Beason, 1890)
- Defined in ‘Non-theistic’ terms
- Justice Black  included religions such as
Buddhism, ethical culture and secular
humanism as within the ambit of
constitutional protection.
United States v. Seeger (1965)
- While it deals w/ statutory interpretation of
draft exemption for conscientious objectors,
is nonetheless constitutionally significant in
that it upheld the right to exemption on
religious grounds of one who denied any
belief in God.
- Theoretically  Seeger is founded on that
branch of religious thought influenced by
Paul Tillich w/c views religion as
encompassing beliefs and views w/c
illuminate the ‘very ground of one’s being’
and w/c give life meaning and direction.
Historic Purpose of the Consti. Prov. best served
by extending it to changing notions of religion.
- Traditional minded reserve the protection
of religion clause for ‘theistic religion’
- Non- Theistic religions offer protection of
freedom of expression clause (where the
involved, or the due process clause and the
equal protection clause, where action is
involved.
Basis of the free exercise clause is the respect for
the inviolability of the human conscience.
2 streams of thought:
Page 59 of 104
1. Protestant dissenter – the inviolability of the
conscience was rooted in an ultimate allegiance to
higher power
2. Humanistic rationalism – the basis was the
anteriority of the individual to the state and the
reservation to the individual, in the social contract,
of the right to his opinions and beliefs.
“The constitutional inhibition of legislation on the
subject of religion has a double aspect. On the one
hand, ...
 it forestalls compulsion by law of the acceptance
of any creed or the practice of any form of worship.
Freedom of conscience and freedom to adhere to
such religious organization or form of worship as the
individual may choose cannot be restricted by law.
On the other hand,
 it safeguards the free exercise of the chosen form
of religion.
...Thus, the constitution embraces two concepts,
that is, freedom to believe and freedom to act. The Critique of Bernas  line drawn is very thin.
first is absolute but, in the nature of things, the
second cannot be.”
Employment Division v. Smith (1990)
- FACTS Smith and Black were fired by a
private rehabilitation organization because [Such] vague standard will made it easy for a
they ingested peyote, a hallucinogenic drug, bureaucratic
for worship purposes under their Native reputation in terms of locally accepted standards of
American Church. For this reason they were religious orthodoxy.
denied unemployment compensation on the
legal ground that their dismissal was for American Bible Society v. City of Manila (1957)
work-related misconduct.
- HELD upholding legal disqualification, Court
said:
o That the free exercise clause permits
the state to prohibit peyote use and to
deny unemployment benefits to those
discharged for the violation of the
prohibition.
o The court ruled that the religion
clause does not relieve an individual
of the obligation to comply with the
law that incidentally forbids (or
requires) the performance of an act
w/c his religious belief requires (or
forbids) if the law is not specifically
directed to religious practice and is
otherwise constitutional as applied to
those who engage in the specified
acts for non-religious reasons.
People v. Fabillar (1939)
- Sec. 34 of the old Marriage Law 
empowered the Director of the National
library to satisfy himself whether the
“church, sect or religion of the applicant [for
license to perform marriage] operates in the
Phil. Islands and is in good repute” was
challenged as unconsti.
o On the ground that that it in effect
empowered the Director to enquire
into the organization and doctrine of
the church or sect.
- Court defended statute (an instance of the
exercise of police power)
o Power given in the statute was not a
power to inquire into the organization
or doctrine of a particular religion but
merely a power to distinguish
between legitimate religions and mere
marriage agencies posing as religion
and exploiting the public.
The statute itself, allowed the state to enquire
whether the religion of the applicant was “in good
repute”.
functionary to measure good
- different form of licensing was involved
- FACTS Plaintiff was a non-stock, non-profit,
religious missionary corp. w/c in the course of
its ministry sold bibles and gospel portions of
the bible. An attempt was made by the City
of Manila to compel the plaintiff to obtain
both a Mayor’s permit and a municipal
license required of those who are engaged in
the business of general merchandise. Plaintiff
challenged this attempt on the ground that it
amounted to “religious censorship and
restrained the free exercise and enjoyment
of religious profession, to wit: the distribution
and sale of bibles and other religious
literature to the people of the Phil.”
- HELD (for the plaintiff) SC said that the
consti. guarantee was plaintiff’s license.
o “The constitutional guarantee of the
free exercise and enjoyment of
Page 60 of 104
 religious profession and worship
carries with it the right to disseminate
religious information. Any restraints of
such right can only be justified like
other restraints of freedom of
expression on the grounds that there
is a clear and present danger of any
substantive evil which the State has
the right to prevent"
Tolentino v. Secretary of Finance (1994)
- The Phil. Bible study questioned the validity
of the registration provisions of the Value
Added Tax Law, RA 7716, as a prior restraint.
- Court distinguished it from American Bible
Study case (as to the registration
requirement):
- “The fee in Section 107, although a fixed
amount [P1,000], is not imposed for the
exercise of a privilege but only for the
purpose of defraying part of the cost of
registration. The registration requirement is
a central feature of the VAT system. It is
designed to provide a record of tax credits
because any person who is subject to the
payment of the VAT pays an input tax, even
as he collects an output tax on sales made or
services rendered. The registration fee is
thus a mere administrative fee, one not
imposed on the exercise of a privilege, much
less a constitutional right.”
Centeno v. Villalon- Pornillos (1904) –obiter
dictum
- Court ruled that the law in question did not
prohibit solicitation for religious purposes but
only solicitation of contributions for
charitable or general welfare purposes.
- Court ruled that solicitation of contributions
in general, w/c may include contributions for
religious purposes, may be regulated by
general law for the protection of the public:
Victoriano v. Elizalde Rope Workers Union
(1974)
- Upheld a provision of the old Industrial Peace
Act w/c excluded from the application and
coverage of a closed shop agreement
employees belonging to any religious sect
w/c prohibits affliction of any of their
members w/ any labor organization
- Court held:
o “It may not be amiss to point out here
that the free exercise of religious
profession or belief is superior to
contract rights Contractual rights,
therefore, must yield to freedom of
religion. It is only where unavoidably
necessary to prevent an immediate
and grave danger to the security and
welfare of the community that
infringement of religious freedom may
be justified, and only to the smallest
extent necessary to avoid the
danger.”
Gerona v. Secretary of Education (1959)
- SC made a significant departure from
American Guidelines
- FACTS Involved a challenge by Jehovah’s
Witnesses against Dept. Order issued by the
Secretary of Education implementing RA
1265 (which prescribed compulsory flag
ceremonies in all public schools. Petitioner’s
Children had refused to salute the Phil. Flag,
sing the national anthem, or recite the
patriotic pledge; hence they were expelled
from school.
- Observation of the Court (take note daw!):
- The realm of belief and creed is infinitive and
limitless bounded only by one's imagination
and though. So is the freedom of belief,
including religious belief, limitless and
without bounds. One may believe in most
anything, however strange, bizarre and
unreasonable the same may appear to
others, even heretical when weighed in the
scales of orthodoxy or doctrinal standards.
But between the freedom of belief and the
exercise of said belief, there is quite a
stretch of road to travel. If the exercise of
said religious belief clashes with the
established institutions of society and with
the law, then the former must yield and give
way to the latter. The Government steps in
and either restrains said exercise or even
prosecutes the one exercising it.
- Most Significant lines in the decision:
“After all, the determination of whether a
certain ritual is or is not a religious ceremony
must rest with the courts. It cannot be left to
a religious group or sect, much less to a
follower of said group or sect; otherwise,
there would be confusion and
misunderstanding for there might be as
many interpretations and meaning to be
given to a certain ritual or ceremony as there
are religious groups or sects or followers, all
depending upon the meaning which they,
though in all sincerity and good faith, may
want to give to such ritual or ceremony.”
Page 61 of 104
 4. THE NON-ESTABLISHMENT CLAUSE

Questions: The core problem of the non-establishment clause is

the task of finding the political principle that it
Should the court really attempt to determine embodies. Its minimal sense is that the state cannot
whether a particular ritual is religious or not? establish or sponsor an official religion. Beyond that,
opinions on the subject range from one extreme to
If it does, what norm can it possibly use?
the other.
Should not the Court rather view rituals with eyes
At one end, relevant to American federalism but not
color-blind to religious categories and merely look at
to the Philippine unitary system, is the view that the
them as theologically uncategorized overt actions
clause merely insulates state policy on religion from
with potential for public disturbance and, therefore,
federal interference. At the other end is the
subject to reasonable regulation?
formulation found in Everson vs. Board of Education.
- Court  chose to categorize and said: The non-establishment clause prohibits the state
from passing “laws which aid one religion, aid all
The flag is not an image but a symbol of the religions, or prefer one religion over another.”
Republic of the Philippines, an emblem of national
The intermediate views are chiefly two:
sovereignty, of national unity and cohesion and of
freedom and liberty which it and the Constitution 1. The non-establishment clause prohibits only
guarantee and protect. Considering the complete direct support of institutional religion but not
separation of church and state in our system of support indirectly accruing to churches and church
governments, the flag is utterly devoid of any agencies through support given to members;
religious significance. Saluting the flag consequently
does not involve any religious ceremony... 2. Both direct and indirect aid to religion are
prohibited but only if the support involves
o The only object of the law was to preference of one religion over another or
see to it that all schools aim to preference of religion over irreligion.
develop civic conscience and teach
the duties of citizenship pursuant to While there is no unanimity in non-establishment as
the mandate of Art. XIV, Sec. 5 (1935)
a political principle, there is substantial agreement
Constitution
- Strong words, indeed, and such great on the values non-establishment seeks to protect.
confidence in flag ceremony as an instrument These are two: 1) voluntarism and 2) insulation
for instilling patriotism! of the political process from interfaith dissension.

- Gerona lasted til’ 1993 Voluntarism as a value is both personal and social.

As a personal value, it is nothing more than the

Ebralinag v. Division Superintendment of
Schools of Cebu (1993)
- reversed Gerona
- For reasons already stated in the criticisms of
Gerona freedom of religion requires that
protesting members be exempted from the
operation of the law.
Gerona and Ebralinag Cases  illustrates that there is a
need for delicate balancing of legitimate interests of
parents in the religious upbringing of their children.
inviolability of the human conscience which is also
protected by the free exercise clause. As a social
value, protected the non-establishment clause, it
means that the growth of a religious sect as a social
force must come from the voluntary support of its
members because of the belief that both spiritual
and secular society will benefit if religions are
allowed to complete on their own intrinsic merit
without benefit of official patronage.
Such voluntarism cannot be achieved unless the
political process is insulated from religion and unless
religion is insulated from politics.

Page 62 of 104
In effect, therefore, what non-establishment calls for [A similar approach, but in a confused sort of way,
is government neutrality in religious matters. Such was followed by the Court in this case.]
government neutrality may be summarized in four
general propositions: The case involved a statue of San Vicente Ferrer
which the barangay council had bought with funds
1) Government must not prefer one religion over obtained through solicitation from residents of the
another or religion over irreligion because such barrio. On the occasion of the town fiesta, the statue
preference would violate voluntarism and breed was lent to the church; but after the fiesta the priest
dissension; refused to return the statue. When resolutions were
passed by the council towards recovering the
2) Government funds must not be applied to statue, the priest challenged the resolutions as
religious purposes because this too would violate violative of the non-establishment clause.
voluntarism and breed interfaith dissension;
“As noted in the first resolution, the barrio fiesta is a
3) Government action must not aid religion because socio-religious affair. Its celebration is an ingrained
this too can violate voluntarism and breed interfaith tradition in rural communities. The fiesta relieves
dissension; the monotony and drudgery of the lives of the
masses.”
4) Government action must not result in excessive
entanglement with religion because this too can Unstated in this decision is the fact that a municipal
violate voluntarism and breed interfaith dissension. corporation has a dual character, proprietary and
governmental. The purchase of the statue is more
AGLIPAY VS. RUIZ easily defensible when seen as a proprietary act the
municipality.
It involved a challenge made by the Philippine
Independent Church to the constitutionality of the PAMIL VS. TELERON (1978)
issuance and sale of postage stamps
rd
commemorative of the 33 International Eucharistic This case upheld the validity of Section 2175 of the
Congress of the Catholic Church. Administrative Code disqualifying “ecclesiastics”
from being appointed or elected as municipal officer.
The challenge was based on the prohibition in Article Seven justices approached the problem from a free-
VI, Section 23(3) of the 1935 Constitution against exercise point of view and considered the law a
the use of public money for religious purposes. prohibited religious test.
HELD: Justice Fernando put it thus: “The challenged
Administrative Code provision, certainly insofar as it
“It is obvious that while the issuance and sale of the
declares ineligible ecclesiastics to any elective or
stamps in question may be said to be inseparably
appointive office, is, on its face, inconsistent with
linked with an event of a religious character, the
the religious freedom guaranteed by the
resulting propaganda, if any, received by the Roman
Constitution.”
Catholic Church, was not the aim and purpose of the
Government. We are of the opinion that the Five justices approached the case from a non-
Government should not be embarrassed in its establishment point of view and upheld the law as a
activities simply because of incidental results, more safeguard against the constant threat of union of
or less religious in character, if the purpose had in church and state that has marked Philippine history.
view is one which could legitimately be undertaken
by appropriate legislation. The main purpose should Under the rules of the 1973 Constitution, however,
not be frustrated by its subordination to mere the vote of the seven justices for declaring the law
incidental results not contemplated. unconstitutional was one short of the required
qualified majority.
GARCES VS. ESTENZO
American jurisprudence is rich with cases on the
non-establishment clause and no serious student of

Page 63 of 104
Philippine constitutional law can afford to bypass
them. With the addition in Article XV, Section 15, of
the 1973 Constitution (now Article II, Section 6 of
the 1987 Constitution) that “The separation of
church and state shall be inviolable,” it becomes all
the more necessary to find out what this phrase
means and what it does not mean in American
constitutional law from which the phrase has been
borrowed.
The SC upheld a New York released time program
which allowed students to be released from school
to attend religious instruction or services out of
school.
The Court said that this did not involve prohibited
aid to religion because “the public schools do no
more than accommodate their schedules to a
program of outside religious instruction.

What clearly appears from American jurisprudence
on the subject is that Jefferson’s metaphoric “wall of
separation” is not without bends and may constitute
a “blurred, indistinct, and variable barrier depending
on all the circumstances of a particular
relationship.” (LEMON vs. KURTZMAN)
In the cases that followed Zorach, the Court had the
opportunity to indicate specific ways of union and
concert and dependency prohibited by the
Constitution.

What in fact has been more useful for the Court in

settling recent non-establishment problems is not ENGEL VS. VITALE (1962)
the metaphor of a dividing “wall” but the concept of
neutrality. This involved a prayer which the local school board
had prescribed for recitation by each class in the
Some of the most important non-establishment beginning of each day.
cases that have come to the American SC have
involved the relation between religion and Finding the recitation of the prayer “a religious
education. These cases may be divided into two activity,” the Court said that “it is no part of the
general categories: (1) those dealing with religious business of government to compose official prayers
activities within the public school system and (2) for any group of the American people to recite as
those involving aid to sectarian schools. part of a religious program carried on by the
government.
The first 2 important cases under the first category,
McCollum vs. Board of Education and Zorach vs. Then the Court added: “The Establishment Clause,
Clauson, although they are not authoritative in unlike the Free Exercise Clause, does not depend
Philippine law because the Philippine Constitution upon any showing of direct governmental
specifically allows religion in the public schools, are compulsion and is violated by the enactment of laws
nonetheless important because of the principle they which establish an official religion whether those
teach. laws operate directly to coerce non-observing
individuals or not.
MCCOLLUM VS. BOARD OF EDUCATION (1948)
ABINGTON SCHOOL DISTRICT VS. SCHEMPP
This involved a released time program of religious (1963)
education in Chicago which allowed sectarian
representatives to teach religion during regular At issue was the validity of a state law requiring that
school hours in the school building. selections from the Bible be read in public schools at
the opening of each school day. The Court
The Court said: “This is beyond all question a invalidated the law. Bible reading was found to be a
utilization of the tax-established and tax-supported religious exercise.
public school system to aid religious groups to
spread their faith. And it falls squarely under the ban The law did not pass the test formulated by the
of the First Amendment. Court:

ZORACH VS. CLAUSON (1952) “The test may be stated as follows: what are the
purpose and primary effect of the enactment? If
Page 64 of 104
either is the advancement or inhibition of religion The Court was faced with a statute which required
then the enactment exceeds the scope of legislative “local public school authorities to lend textbooks
power as circumscribed by the Constitution. That is free of charge to all students in grades seven
to say that to withstand the strictures of the through twelve; students attending private schools
Establishment Clause there must be a secular were included.”
legislative purpose and a primary effect that neither
advances nor inhibits religion.” Although evidently the law could have a financially
beneficial effect on sectarian schools, the law was
EPPERSON VS. ARKANSAS (1968) nonetheless upheld. Applying the neutrality test
formulated in Schempp, the statute which covered
The Court reached a similar conclusion in this case only secular textbooks, was found to have “a secular
when it was faced with an Arkansas statute which legislative purposes and a primary effect that
prohibited its public schools and universities from neither advances nor inhibits religion.”
teaching the theory that man evolved from a lower
species of life. The statute attempted to tailor Subsequent cases have supplemented the Allen
teaching and learning to the principles and decision by employing another aspect of the
prohibitions of “fundamentalism.” neutrality test, namely, the prohibition against
excessive state entanglement with religion.
The law’s effort was confined to an attempt to blot
out a particular theory because of its supposed LEMON VS. KURTZMAN (1971)
conflict with the Biblical account, literally read.
Plainly, the law is contrary to the mandate of the This case dealt with Pennsylvania’s Non-public
First, and in violation of the 14th Amendment to the Elementary and Secondary Education Act, and the
Constitution. companion cases of EARLEY VS. DICENSO and
ROBINSON VS. DICENSO dealt with Rhode Island’s
The second category of cases put various forms of Salary Supplement Act.
public aid to sectarian institution to the neutrality
test. The Pennsylvania Law authorized the
Superintendent of Public Instruction to “purchase”
EVERSON VS. BOARD OF EDUCATION (1947) certain “secular educational services” from
nonpublic schools, directly reimbursing those for
[The case itself was the foundation of the neutrality teachers’ salaries, textbooks, and instructional
test formulated in Schempp.] materials.

This involved a New Jersey ordinance which Reimbursement was restricted to courses in
authorized the township to reimburse all parents of specified secular subjects, the textbooks and
children of school-age for bus fares pain in materials had to be approved by the
transporting their children to school. The statute, Superintendent, and no payment was to be made for
therefore, helped the children get to church schools. any course containing “any subject matter
It was nevertheless held to be valid. expressing religious teaching, or the morals or forms
of worship of any sect.” Most of the schools with
Justice Black’s opinion for the Court stated that the
whom contracts had been were affiliated with the
New Jersey “legislation, as applied does no more
Roman Catholic Church.
than provide a general program to help parents get
their children, regardless of their religion, safely and The Rhode Island Law provided for a salary
expeditiously, to and from accredited schools.” supplement to be paid to teachers in non-public
school at which the average per pupil expenditure
BOARD OF EDUCATION VS. ALLEN (1968)
on secular education was below the average in the
public schools. Eligible teachers must teach only
courses offered in the public schools and must use
only materials used in the public schools and must
agree not to teach courses in religion. At the time of
the litigation about 250 teachers at Roman Catholic
Page 65 of 104
parochial schools were the sole beneficiaries of the The Court argued that the Establishment Clause
law. does not prevent the state from furnishing a
disabled child enrolled in a sectarian school with a
Both laws were found unconstitutional on the ground sign language interpreter in order to facilitate his
that the substantial religious character of the education. Government programs that neutrally
schools involved and the comprehensive measures provide benefits to a broad class of citizens defined
of surveillance which the provisions of the acts without reference to religion are not readily subject
required would give rise to excessive church-state to an Establishment Clause challenge just because
entanglement contrary to the non-establishment sectarian institutions may also receive an
clause. attenuated financial benefit. (MUELLER VS.
ALLEN)
Distinguishing the case from Allen, the Court said
that the content of a textbook can easily be
ascertained while a teacher’s treatment of a subject
cannot and that the danger to separation of church AGOSTINI VS. FELTON (1997)
and state posed by a teacher under religious control
could not be ignored. The case involved a New York program which sent
public school teachers into parochial schools to
provide remedial education to disadvantaged
children. The SC ruled that a federally funded
TITLON VS. RICHARDSON (1971) program providing supplemental, remedial
instruction to disadvantaged children on a neutral
In this case, decided on the same day, the SC
basis was not invalid under the Establishment
upheld the validity of the Higher Education Facilities
Clause when such instruction is given on the
Act of 1963. The act provided federal construction
premises of sectarian schools by government
grants for colleges and universities, excluding “any
employees under a program containing safeguards
facility used or to be used for sectarian instruction or
such as those present in New York City’s program.
as a place for religious worship, or … primarily in
connection with any part of the program of a school Finally, as to an excessive entanglement between
or department of divinity.” church and state, the Court said that the program
did not require “pervasive monitoring by public
The act was found to be within the principal and
authorities,” and that “administrative cooperation”
primary effect doctrine of Allen and without the
between the government and parochial schools and
“entanglement” effects of Kurtzman and DiCenso.
the dangers of “political divisiveness” were
However, the part providing for unlimited use after
insufficient to create an “excessive entanglement”
20 years was invalidated as amounting to a
because they are present no matter where such
contribution to a religious body. (see also
services are offered, and that no court has held that
COMMITTEE FOR PUBLIC EDUCATION VS.
such services cannot be offered off campus.
NYQUIST)
ZELMAN VS. SIMMONS-HARRIS (2002)
Many other US cases have followed, most of them
characterized by sharply divided opinions. However, [This is the latest on school related non-
in more recent years a number of cases have been establishment cases.]
decided which seem to indicate a liberalizing of the
doctrine on non-establishment. The case involved Ohio’s Pilot Project Scholarship
Program, a voucher program, which gave
ZOBREST VS. CATALINA FOOTHILLS SCHOOL educational choices to families in any Ohio school
DISTRICT (1993) district that is under state control. The program
provides tuition aid for certain students in the
The case involved a deaf child and his parents who Cleveland City School District to attend participating
filed this suit after the school district refused to public or private schools of their parents choosing
provide a sign language interpreter to accompany and tutorial aid for students who choose to remain
the child to classes at a Roman Catholic high school. enrolled in public school.

Page 66 of 104
The program was upheld on the ground that it was the civil courts, which will not inquire into the
for a valid secular purpose of providing educational correctness of the decisions of the ecclesiastical
assistance to poor children in a demonstrably failing tribunals.
public school system.

Notably, however, all the above recent cases were

reached by a sharply divided Court.

As for the Philippine doctrine, one important point to

understand is the meaning of ecclesiastical matters
over which secular authority has no jurisdiction.

AUSTRIA VS. NLRC (1999)

This case dealt with a pastor of 28 years experience

who could not account for church tithes and
offerings collected by his wife. He was dismissed.
When the dismissal was upheld by the NLRC, Austria
challenged the jurisdiction of the NLRC saying that
the matter was an ecclesiastical affair outside the
jurisdiction of the NLRC.

The Court said that what was involved in the case

was relationship of the church as an employer and
the minister as an employee, a purely secular
matter.” It is purely secular and has no relation
whatsoever with the practice of faith, worship or
doctrines of the church. The Court saw the matter as
a pure labor case.

LONG VS. BASA (2001)

This was a matter of religious discipline. The

disciplinary regulation of the church involved
allowed the Board of Directors to expel a member
for dishonorable conduct “injurious to the character
and interest of the Institution” without notice and
hearing. The Court observed:

The established doctrine in this jurisdiction is that

such action from the church authorities is conclusive
upon the civil courts.

As far back in 1918, we held in US VS. CAÑETE

that:

…in matters purely ecclesiastical the decision of the

proper church tribunals are conclusive upon the civil
tribunals. A church member who is expelled from
the membership by the church authorities, or a
priest, or a priest of minister who is by them
deprived of his sacred office, is without remedy in
Page 67 of 104
5. NON-DISCRIMINATORY CONCESSIONS: TAX
EXEMPTIONS AND CHAPLAINCIES

Unlike the American Constitution whose text does

not embody non-discriminatory concessions to
religion, the Philippine Constitution explicitly
embodies some. Tax exemption of religious property
is one of them.

Article VI, Section 28(3) says: “Charitable

institutions, churches and parsonages or convents
appurtenant thereto, mosques, non-profit
cemeteries, and all lands, buildings, and
improvements, actually, directly, and exclusively
used for religious, charitable, or educational
purposes shall be exempt from taxation.”

Thus the Philippine legal problem is not how to

justify the concession but to find out what its scope
is.

The present provision is an adaptation, first made in

1973, of Article VI, Section 22(3) of the1935
Constitution which gave tax exemption to
“cemeteries, churches, and parsonages appurtenant
thereto, and all lands, building, and improvements
used exclusively for religious, charitable, or
educational purposes.”

The new provision exempts not all cemeteries but

only non-profit cemeteries. Moreover, the condition
for exemption under the new provision is not just
that the property be used “exclusively” for religious
purposes but that it be used “actually, directly and
exclusively” for such purpose.
Page 68 of 104
Even as it stands, however, the exemption is a
remarkable form of aid to religion. It therefore
presents a problem under the non-establishment
clause. There has as yet been no case which treats
the full import of the changes originally made by the
1973 Constitution.
For the Philippine law the problem is solved by the
explicit constitutional provision. American
constitutional law, which possesses no similar
provision, had occasion to grapple with the problem
in Walz vs. Tax Commission.
Another direct financial aid to religion comes in the
form of salary for chaplains of the armed forces,
penal institutions, orphanages and leprosaria. Again
in Philippine law, the constitutional problem is
solved by an explicit provision allowing salary for
priests, preacher, ministers or dignitaries “assigned
to the armed forces, or to any penal institution, or
government orphanage or leprosarium.” (Article VI,
Section 29 (2))
American law likewise allows such financial aid in
spite of the absence of a constitutional provision to
that effect. Justice Brennan gives the rationale thus:
“Since government has deprived such persons
[soldiers and inmates] of the opportunity to practice
their faith at places of their choices, the argument
runs, government may, in order to avoid infringing
the free exercise guarantees, provide substitutes
where it requires such persons to be.”
Thus, in effect, government maintains its neutrality
by affording a balancing factor for the restriction of
free exercise.
6. RELIGION IN THE PUBLIC SCHOOLS
The original draft of the 1935 Constitution contained
the following provision: “Optional religious
instruction in public schools as now authorized by
law shall be maintained.”
The law on the subject at the time of the Convention
was Section 98 of the Revised Administrative Code.
It read:
“It shall be lawful, however, for the priest or minister enough that religious instruction was not and would
of any church to establish in the town where a public not be a source of religious discord in the schools.
school is situated, either in person or by designated Artadi even drew applause from the delegates when
teacher of religion, to teach religion for one-half he said:
hour three times a week, in the school building, to
those public schools pupils whose parents or
guardians desire it and express their desire thereof
in writing filed with the principal teacher of the
school, to be forwarded to the Division
Superintendent, who shall fix the hours and rooms
for such teaching. But no public-school teachers
shall either conduct religious exercise or teach
religion or act as a designated religious teacher in
the school or building under the foregoing authority,
and no pupils shall be required by any public-school
teacher to attend and receive the religious
instruction herein permitted. Should the opportunity
thus given to teach religion be used by the priest,
minister or religious teacher for the purpose of
arousing disloyalty to the Republic of the Philippines,
or of discouraging the attendance of pupils at such
public school, or creating a disturbance of public
order, or of interfering with the discipline of the
school, the Division Superintendent, subject to
approval of the Director of Public Schools, may, after
due investigation and hearing, forbid such offending
priest, minister, or religious teacher from entering
the public school building thereafter.
To the proposed constitutional provision, Delegate
Artadi presented the following amendment:
“In all public schools, morals or religious instruction
at the option of parents or guardians shall be made
a part of the curriculum.”
Artadi’s original idea was to propose compulsory
instruction in religion and morals; but it was
immediately obvious to him and to his advisers that
such a proposal would meet with approval neither
from the Convention nor from the President of the
US. Hence, he proposed that religion and morals,
while made part of the school curriculum, should be
taken only at the option of parents or guardians. He
believed that such instruction was needed for the
welfare of the country and that the option given to
parents was sufficient to free the provision from the
restriction of the Tydings-McDuffie Law prescribing
separation of church and state.
Moreover, he said, the actual practice of allowing
religious instruction in the public schools was proof
Page 69 of 104
…If the knowledge of grammar and of arithmetic Aradi’s amendment was rejected and the original
were not required in our schools, sooner or later the proposal was approved. It became Article XIV,
child would nevertheless realize the importance of Section 5 of the 1935 Constitution. As with tax
knowing them, because he will come to realize that, exemption and chaplaincies, therefore, the
in the struggle for life, knowledge of a language and constitutional problem of religion in the public
arithmetic is necessary. This realization does not schools was solved by a specific constitutional
come about with regard to religion. Many students provision.
do not come to realize this importance because they
do not feel its relevance to their material needs. Since, however, the constitutional provision made
Because of this, the state, the nation, loses the reference to religious instruction “as now authorized
opportunity of molding the character of Filipino by law,” the question arose whether Section 928 of
youth according to sound principles; the state loses the Revised Administrative Code, which was the
the occasion for creating in the individual a habit of existing law on the subject, itself became part of the
mind which rationally chooses good and rejects Constitution.
evil…
Some argued that the Constitution had merely
Moreover, he said, the proposal would not cost the approved the concept of religious instruction in the
government any money because the financial public schools and had left the details of
burden would be borne, as in the existing system, implementation to the legislature. Others
by the religious groups. maintained that Section 928 had been incorporated
into the Constitution by reference and hence could
Answering Artadi’s speech, Delegate Roxas very no longer be touched except by constitutional
pointedly showed that the suggestion was amendment.
impracticable: “… We would have to have a
professor for every religion. And it will very easily The question was never settled under the 1935
happen that the father of a child will say that he Constitution but it was rendered academic by the
wants his son to be instructed in the religion, for 1973 Constitution. Article XV, Section 8(8) (1973)
example, of Zoroaster or the Mormons.” said: “At the option expressed in writing by the
parents or guardians, and without cost to them and
Another Delegate who spoke against the the government, religion shall be taught to their
amendment was Delegate Castro, himself a religious children or wards in public elementary and high
minister of his church. Castro spoke both against the schools as may be provided by law.”
amendment and against the original provision
allowing optional religious instruction in public Thus, as long as the option of parents expressed in
schools. He argued that the proposals: writing is respected and as long as the system is
without expense to the parents and to the
1) Violated the non-establishment clause, government, religion may be taught in the public
schools. Implicit in this provision therefore is that
2) Violated the prohibition against the use of public school physical facilities may be used and all
public funds for religious purposes, other details are left to ordinary legislation.

3) Could make dangerous books available to the The provision has once again undergone
young, transformation under the 1987 Constitution. Article
XIV, Section 3(3) now reads: “At the option
4) Could facilitate the way for any demagogue
expressed in writing by the parents or guardians,
bent on spreading anarchical ideas.
religion shall be allowed to be taught to their
Then he concluded: “To make one a good Christian children or wards in public elementary and high
and a virtuous man, it is more than sufficient if he schools within the regular class hours by instructors
learn by memory any compendium of Christian designated or approved by the religious authorities
doctrine without having to take a religion course in of the religion to which the children or wards belong,
public schools.” without additional cost to the government.”

Page 70 of 104
The 1973 requirement that the option of the parents fact that the property conflict could be settled only
or guardians be expressed in writing was retained by the resolution of an eminently ecclesiastical
against the argument that such a requirement would question: Who was the legitimate bishop of the
impose an unnecessary and, in some instances, church? The SC cut this initial knot by a simple
difficult burden. The new provision, however appeal to a passage in American Jurisprudence:
specifies that religion classes may be held “during
regular class hours.” This specification provides a “Where, however, a decision of an ecclesiastical
uniform rule to be followed by all school court plainly violates the law it professes to
administrators. administer, or is in conflict with the law of the land,
it will not be followed by the civil courts… In some
In specifying that the instructors must be instances, not only have the civil courts assumed
“designated or approved by religious authorities of the right to inquire into the jurisdiction of religious
the religion to which the children or wards belong” tribunals and the regularity of their procedure, but
the law spares the school administrator from the they have subjected their decisions to the test of
responsibility of having to decide who among fairness or to the test furnished by the constitution
competing claimants is the person entitled to teach and the law of the church. Thus, it has been held
a particular religious group. that expulsion of a member without notice or an
opportunity to be heard is not conclusive upon the
Moreover, it was the sense of the Commission that civil courts when a property right is involved.”
volunteering public school teachers may be allowed
to teach religion but, in order to avoid any suspicion Having said this, the Court ruled, on the basis of the
of religious pressure on pupils they may be regularly internal laws of the Philippine Independent Church,
teaching, not in the school where he or she may be that Fonancier was not the legitimate bishop, that
regularly teaching. his ouster had been legitimately done, and that his
rival, de los Reyes, was the duly elected head of the
As to the phrase “without additional cost the Philippine Independent Church.
Government,” its meaning is that religious
instruction should not cost government anything The next question was: Whose faction should control
over and above normal maintenance costs such as the controverted property?
the cost of wear and tear on the building, janitorial
services, and electrical cost to light the building. The The contention of Fonancier was that his faction
1973 provision which said that the teaching should should control the property because de los Reyes’
not involve additional cost for parents was removed opposing faction consisted of schismatics. He
on the reasoning that, at any rate, government argued that “in case of schism within a church its
cannot impose extra cost on parents. properties should remain with the faction that
continues adhering to the original doctrines and
7. INTRAMURAL RELIGIOUS DISPUTES practices of the church irrespective of whether it
constitutes a majority or minority thereof.
Another type of cases which has reached the Court
deals with the intramural conflicts within the The Court answered with another ecclesiastical
Philippine Independent Church. ruling: the factions arose not out of a schism, which
requires doctrinal differences, but out of a simple
FONANCIER VS. COURT OF APPELAS (1955) physical division into two groups. The doctrinal
differences, the Court found, came after the physical
[This is the leading case on the subject.] division became a reality.
At issue in the case was the right of control overThe ultimate position taken by the SC, however, did
certain properties of the Philippine Independent not require any further discussion of the question
Church. Whether the civil courts could take whether there was or there was not in fact schism.
cognizance of such conflict was problem enough. The Court said that even if there in fact had been
schism, the law could no favor Fonancier. The Court
It was, however, not a simple intramural property
said that the rule established in Watson vs. Jones
conflict. What made it more complicated was the

Page 71 of 104
was that in the case of property controversies within
religious congregations strictly independent of any
other superior ecclesiastical association (such as the
Philippine Independent Church was), the rules for
resolving such controversies should be those of any
voluntary association.
If the principle adopted by the congregation is rule
by majority vote, then the vote of the majority
should prevail; if the principle followed is adherence
to duly constituted authorities within the
congregation, then the voice of duly constituted
authorities should prevail. The Court concluded that,
whichever principle was applied, Fonancier should
lose the case. And lose he did.
The decision in Fonancier should be compared with
those in Gonzales and in the two Verzosa cases.
These latter set of cases also involved an intramural
property dispute, but, it will be recalled, the Court
took a neutral position. The matter was left to the
decision of intramural authorities. The difference
between this and the Fonancier case lies in the fact
that, whereas in the Fonancier case the disputants
were not subject to a higher ecclesiastical authority,
in the Gonzales and Verzosa cases both disputants
were subject to superior Catholic Church law and
judicial authority. But, even in the Fonancier case,
there was one area which the Court would not
touch: doctrinal and disciplinary differences. The
Court said:
“The amendments of the constitution, restatement
of articles of religion and abandonment of faith or
abjuration alleged by appellant, having to do with
faith, practice, doctrine, form of worship,
ecclesiastical law, custom and rule of a church and
having reference to the power of excluding from the
church those allegedly unworthy of membership, are
unquestionably ecclesiastical matters which are
outside the province of the civil courts.”
[the principle that decisions of civil courts should not
be made to turn upon whether one or other of the
competing factions has departed from orthodox
doctrine has found affirmation in recent American
decisions.
The SC upheld the denial of citizenship to one who
8. RELIGIOUS TESTS AND OBLIGATIONS OF
because of religious scruples refused to take an oath
CITIZENSHIP
to bear arms in defense of the US.
The third sentence of Section 5, Article III says: “No
religious test shall be required for the exercise of
civil or political rights.”
TORCASO VS. WATKINS
The purpose of this provision, which is but a
corollary of the freedom and non-establishment
clause, is to render the government powerless “to
restore the historically and constitutionally
discredited policy of probing religious beliefs by test
oaths or limiting public officers to persons who have,
or perhaps more properly, profess to have a belief in
some particular king of religious concept.”
For, indeed, to allow religious tests would have the
effect of “formal or practical ‘establishment’ of
particular religious faiths… with consequent burdens
imposed on the free exercise of the faiths of non-
favored believers.
As already seen in Pamil vs.Teleron, the SC
rejected the notion that the prohibition imposed on
“ecclesiastics” from holding appointive or elective
municipal offices was a religious test.
But, as already noted, McDaniel vs. Patty declared
a similar law violative of the free exercise clause.
When the religious test that is imposed by law is
overt and clear, the constitutional problem it
presents is easy to resolve.
TORCASO VS. WATKINS (1961)
This presented a clear case. At issue there was the
state law which required belief in the existence of
God as a qualification for a notary public
commission.
The SC had no difficulty in declaring the law to be an
unconstitutional religious test.
There are, however, certain requirements partaking
of the nature of religious tests which have divided
the US SC.
US VS. MACKINTOSH (1931)
GIROUARD VS. US (1946)
Page 72 of 104
This overruled Mackintosh saying: “The test oath is welfare, to uphold the constitution and obey the
abhorrent to our tradition… We do not believe that laws, and to cooperate with the duly constituted
Congress intended to reverse that policy when it authorities in the attainment and preservation of a
came to draft the naturalization oath. Such an just and orderly society.” This does not appear in
abrupt and radical departure from our traditions the 1987 Constitution.)
should not be implied.
GIROUARD VS. US
IN RE SUMMERS (1945)
Defense of one’s country, however, is not limited to
A divided SC upheld the denial of a license to the bearing of arms. “Total war in its modern form
practice law to one who entertained conscientious dramatizes as never before the great cooperative
scruples against participation in war. The decision effort necessary for victory. The nuclear physicists
drew this dissent form Justice Black: who developed the atomic bomb, the worker at his
lathe, the seamen on cargo vessels, construction
“I cannot agree that a State can lawfully bar from a
battalions, nurses, engineers, litter bearers, doctors,
semi-public position a well qualified man of good
chaplains-these, too, made essential contributions.”
character solely because he entertains a religious
belief which might prompt him at some time in the Thus, it is that from the earliest history of American
future to violate a law which has not yet been and constitutional law conscientious objectors have been
may never be enacted.” exempted from direct military service. The cases
that have been handled by American courts have
The opposite side of religious tests is the imposition
mainly dealt with the problem of determining not
of civic obligations that might conflict with a
whether anybody should be exempt but rather
person’s religious beliefs. Aspects of this problem
which classes of persons are covered by existing
have already been seen in the discussion of the Flag
statutory exemptions.
Salute Law in Gerona vs. Secretary of Educatio,
later reversed by Ebralinag vs. Division It should be noted, however, that when the State
Superintendent of Schools, and of compulsory exempts a person from military service on religious
schooling in Wisconsin vs. Yoder. grounds, the State in effect gives preferential
treatment to religious affiliations which object to war
Another important aspect is the problem raised by
over religious affiliations which do not object to war.
conscientious objectors. Can the state compel a
person to bear arms in defense of the country even Is not such an exemption then contrary to the non-
when bearing arms is contrary to the person’s establishment clause?
religious beliefs?
GILLETTE VS. US
That a citizen has the duty to defend the country is
clear from Article II, Section 4 (“The primary duty of It dealt with this question and answered that the
the Government is to serve and protect the people. exemption could violate neutrality only if it is
The Government may call upon the people to defend religiously motivated on its face, or when it is
the State and, in the fulfillment thereof, all citizens religiously discriminatory.
may be required, under conditions provided by law,
to render personal military or civil service.” The This was not the case in Gillette because the Court
1973 version, Article II, Section 2, read: “The found that the exemption in question was supported
defense of the state is a prime duty of the by valid reasons, neutral with respect to religion,
Government and the people, and in the fulfillment of such as the need to insure a fair and uniform system
this duty all citizens ma be required by law to render for deciding who will and who will not be forced to
personal military or civil service.”), and from the serve.
former Article V, Section 1 of the 1973 Constitution.
(“It shall be the duty of the citizen to be loyal to the Philippine jurisprudence has not yet had the
Republic and to honor the Philippine flag, to defend opportunity to deal with the problem of
the state and contribute to its development and conscientious objectors. When such opportunity
comes, it will be well to recall Article XIV, Section 11,
Page 73 of 104
of the 1973 Constitution, which says: “The State
shall consider the customs, traditions, beliefs, and
interests of national cultural communities in the
formulation and implementation of State policies.”
The same sentiment is now expressed in Section 17,
Article XIV, of the 1987 Constitution: “The State
shall recognize, respect, and protect the rights of
indigenous cultural communities to preserve and
develop their cultures, traditions, and institutions. It
shall consider these rights in the formulation of
national plans and policies.” In other words, the fact
that an obligation has been imposed on citizens by
the Constitution to defend the State does not mean
that the obligation imposed overrides all rights.
The approach followed by the US SC in dealing with
conscientious objectors to war could have been
useful in dealing with the problem regarding
suffrage arising from Article V, Section 4, of the
1973 Constitution which imposed the obligation to
register and vote.
new vision of what she is called to do and which has
led to the adoption of methods of action more suited
to the demands of the new awareness and of the
new vision. This new version refers to the
preferential option of the poor.
This new awareness is clearly visible in the Pastoral
Letter Evangelizatino and Development issued by
the Catholic Bishops Conference of the Philippines in
July 1973. The letter reflects on the inequitable
distribution of income, on unemployment and
underemployment, on housing and land use.
It criticized ostentatious display of wealth and a tax
structure biased against the poor. The pastoral letter
clarifies the church’s changed understanding of its
vocation in the world today. It expresses the
church’s concern for society and for the poor no
longer mainly in terms of personal almsgiving or
working in charitable institutions but especially in
terms of its duty to participate in the building of a
new social order.

The provision was supported by penal legislation but This new understanding logically led to major shifts
no case involving the provision reached the SC. The in the church’s social action programs. The most
obligation has since been removed by the 1987 important expression of this shift was the
Constitution by being silent about it. simultaneous rise in diverse places and in diverse
forms of Basic Christian Communities.
9. CHURCH AND STATE UNDER MARTIAL RULE
Their common denominator was the effort to
The decade of martial rule brought about near integrate social action and faith within community.
confrontations between the state and the Catholic
Church. The tension continued even in the post- These shifts of apostolate have required and in turn
martial law era chiefly because of two factors: the have been influenced by new methods of analysis
expanded powers of the state under the 1973 and organization. Structural Analysis together with
Constitution on the one hand, and on the other methods have been very effective in
other the church’s perception of an expanded conscientizing different sectors, giving participants a
mission. sharper understanding of the forces operation in
society, of the need for structural reform, of the role
The expanded powers of the state were most they can play in the process of change.
dramatically manifest in the martial law
jurisprudence under the 1973 Constitution and in The forces of change described above were already
Amendment 6 of the same Constitution. The present before martial law was imposed in 1972; but
expansion of the notion of protected religion beyond the advent of martial law served to heighten both
the theistic has been seen in Torasco vs. Watkins. the church’s awareness of her necessary role and
It is also necessary to explain the forces that have her position of leadership in the socio-political field.
influenced and shaped the church’s socio-economic- After martial law shocked many into the need for
political position over the past decade or so. action and involvement, for a long while martial law
left the church as the only forum where opposition
The transformation of the church in recent years and criticism could still be openly voiced.
was brought about by a new awareness of what she
is, a new awareness which in turn has resulted in a

Page 74 of 104
It is in this context of expanded governmental to the expansive reach of government and prevents
powers and of a more socially involved church that a situation where every “humane” program of
the two religion clauses must be read. government could be rendered suspect as an act of
establishment of religion. The thinking in Garces
It should be noted that while religion for purposes of vs. Estenzo goes in the direction of a narrow
the free exercise clauses has been given an definition of religion for purposes of non-
expansive meaning, e.g. in Torcaso and Gironella, it establishment.
seems that religion for purposes of the non-
establishment clause has been kept narrow. The
difference in scope is sometimes expressed thus:
everything that is arguably religious is protected by SECTION 6. THE LIBERTY OF ABODE AND OF
CHANGING THE SAME WITHIN THE LIMITS
the free exercise clause, but everything that is
PRESCRIBED BY LAW SHALL NOT BE IMPAIRED
arguably non-religious may be the subject of state EXCEPT UPON LAWFUL ORDER OF THE COURT.
support of involvement. NEITHER SHALL THE RIGHT TO TRAVEL BE
IMPAIRED EXCEPT IN THE INTERESTS OF
Thus, while transcendental meditation may not be NATIONAL SECURITY, PUBLIC SAFETY, OR
much different from secular methods of body control PUBLIC HEALTH, AS MAY BE PROVIDED BY
and concentration, for some at least it is a form of LAW.
religious practice and therefor is protected by the
free exercise clause; conversely, since it is also 1. freedom of movement: liberty of abode and
of travel
arguably non-religious, presenting it as a course in a
*concurring in Aptheker v Sec of State, Justice
public school should not violate the non-
Douglas said: “Free movement by the citizen is of
establishment clause. course as dangerous to a tyrant as free expression
of ideas or the right of assembly and it is therefore
Similarly, in our Philippine context, while some controlled in most countries in the interest of
activities of basic Christian communities and church security... that is why the ticketing of people and the
social action centers might not materially differ from use of identification papers are routine matters
those of barangay action groups or of government under totalitarian regimes.”
welfare agencies, in motivation and initial inspiration
at least church related activities are arguably *under the 1935 constitution, the two liberties were
treated under one provision. Article III, section 14
religious and therefor should be jealously protected
said:
by the free exercise clause; and since these same
activities are also arguably non-religious but social “The liberty of abode and of changing the same
and humanitarian, they can be the subject of state within the limits prescribed by law shall not be
support without violating the non-establishment impaired.” CASE: Villavicencio v. Lukban
clause.
-the teaching then was that no one could be
It should be pointed out on the one hand that the compelled to change his or her home except in
main beneficiaries of the expanded notion of religion accordance with law.
for purposes of free exercise are what one might call
*the 1973 Constitution altered the 1935 text to
the “freak minority,” or the innovative ones, or the read: “The liberty of abode and of travel shall not be
unorthodox, or those who might rock the boat. impaired except upon lawful order of the court, or
when necessary in the interest of national security,
And in our context, it is the boat rockers, howsoever public safety, or public health.”
gently they might rock, that make the pilots of our
ship of state nervous. But the constitutional *publicized cases of ‘hamletting’ or the herding of
guarantee exists not just for the traditionally pious people into a militarily quarantined sanctuary within
but also and especially for the boat rockers. the rebel areas during the regime of Mr. Marcos
should have come under this provision; but they
On the other hand, it should also be pointed out that never reached the Supreme Court. Thus there are
no decided cases touching on liberty of abode under
maintaining a narrow definition of religion for
the 1973 Constitution. But drastic attempts by the
purposes of non-establishment is an accommodation government to control the travel of citizens during

Page 75 of 104
the period of martial law did reach the court. *original draft of this provision presented to the
Curtailment took the form of denial of exit permits 1971 Constitution Convention simply said that
to some who wanted leave the country. access to official records and the right to
information “shall be afforded the citizens as may be
*as to liberty of travel, under the 1987 law, it may provided by law.” Delegate De la Serna, at the
be impaired even without court order, but the Meeting of the 166-Man Special Committee on
appropriate executive officer is not armed with November 16, 1972, pointed out that the proposed
arbitrary discretion to impose limitations. He can provision did not grant a self- executory right to
impose limits only on the basis of “national security, citizens. It still had to be implemented by statute.
public safety, or public health” and “as may be De la Serna therefore proposed that the draft be
provided by law,” a limitive phrase which did not reworded so that the Constitution itself should give
appear in the 1973 text. the right but subject to statutory limitations. The
final provision followed De la Serna’s suggestion.
The Constitution itself sets down the measure of
allowable impairment: necessity “in the interest of *the 1973 Constitution went beyond the Subido case
national security, public safety, or public health” and recognized the right of access to public
(Edwards v California) as well as explicit documents and records as a self-executory
provisions of statutory law or the Rules of Court. constitutional right. The role given to the National
Thus, for instance, a person who is out on bail may Assembly was not to give the right but simply to set
be prevented from leaving the country. limits on the right given by the Constitution. The
right, moreover, was a public right where the real
Marcos v Manglapus (celebrated case) parties in interest are the people. Hence, every
-dealt with the ban of President Aquino on the citizen has “standing” to challenge any violation of
former President’s return to the Philippines. The ban the right and may seek its enforcement by
was challenged as violative of the right to travel and mandamus.
the right to return to one’s abode. The court treated
it merely as involving the right to travel. And since *the 1987 Constitution has preserved the 1973 text
the authority to impair the right to travel must be but with the addition of the phrase “as well as to
based on law, the President had to be able to point government research data used as basis for policy
to a law giving her such authority. The Court, development.” The amendment came as a reaction
speaking through Justice Cortes, found this in the to the government practice during the martial law
totality of executive powers, both stated and regime of withholding social research data from the
unstated in the Constitution, explicit and residual. knowledge of the public whenever such data
contradicted polices which the government wanted
2. Aliens and right of entry to espouse. The reference, however, id to
*while the right to travel of citizens covers both exit “government research data,” that is, to the findings
from and entry into the country, aliens cannot claim of government funded research and not to finding of
the same right. privately funded research over which private
proprietary rights might exist.
*as a result, norms for admission of aliens into the
country are political matters virtually beyond the
reach of judicial review. Chavez v PCGG
-the Court enumerated some of the recognized
limitations on the right to information. These are:
SECTION 7. THE RIGHT OF THE PEOPLE TO 1. National security matters. These include state
INFORMATION ON MATTERS OF PUBLIC secrets regarding military, diplomatic and other
CONCERN SHALL BE RECOGNIZED. ACCESS TO national security, and information on inter-
OFFICIAL RECORDS, AND TO DOCUMENTS, AND government exchanges prior to the conclusion of
PAPERS PERTAINING TO OFFICIAL ACTS, treaties and executive agreements. Where there is
TRANSACTIONS, OR DECISIONS, AS WELL AS no need to protect state secrets, the privilege to
TO GOVERNMENT RESEARCH DATA USED AS withhold documents and other information may not
BASIS FOR POLICY DEVELOPMENT, SHALL BE be invoked, provided that they are examined “in
AFFORDED THE CITIZEN, SUBJECT TO SUCH strict confidence” and given “scrupulous
LIMITATIONS AS MAY BE PROVIDED BY LAW. protection.”

1. Right to information, access to public 2. Trade secrets and banking transactions, pursuant
documents to the Intellectual Property Code and other related
laws, and to the Secretary of Bank Deposits Act.
Page 76 of 104
3. Criminal matters or classified law enforcement
matters, “such as those relating to the
apprehension, the prosecution and the detention of
criminals, which courts may not inquire into prior to
such arrest, detention and prosecution.” Otherwise,
efforts at effective law enforcement would be
seriously jeopardized.
4. Other confidential matters. The Ethical Standards
Act prohibits public officials and employees from
using or divulging “confidential or classified
information officially known to them by reason of
their office and not made available to the public.”
Other acknowledged limitations include diplomatic
correspondence, closed door cabinet meetings and
executive sessions of wither house of Congress, and
the internal deliberations of the SC.
Of great interest to the public are the efforts of
government through the PCGG to recover illegally
obtained wealth. The extent to which the public has
a right to obtain information about the matter was
also determined in Chavez: considering the intent of
the framers of Constitution, we believe that it is
incumbent upon the PCGG, and its officers, as well
as other government representatives, to disclose
sufficient public information on any proposed
settlement they have decided to take up with the
ostensible owners and holders of ill-gotten wealth.
Such information, though, must pertain to definite
propositions of the government, not necessarily to
intra-agency or inter-agency recommendations or
communications during the stage when common
assertions are still in the process of being
formulated or are in the ‘exploratory’ stage.
Marques v Desierto
-another area of interest are bank accounts of
suspects in Anti-Graft cases. The question raised in
Court was whether the Ombudsman, in the course of
an investigation and in the exercise of his powers
under the Ombudsman Act, RA No 6770 may
“examine and have access to bank accounts and
records” and order an in camera inspection of
questioned accounts in spite of the Bank Secrecy
Law. The Court answered the question thus: before
an in-camera inspection may be allowed, there must
be a pending case before a court of competent
jurisdiction. Further, the account must be clearly
identified, the inspection limited to the subject
matter of the pending case before the court of
competent jurisdiction. The bank personnel and the
account holder must be notified to be present during
the inspection, and such inspection may cover only
the account identified in the pending case. Since
these conditions are not fulfilled, the Ombudsman
may not hold back official in contempt.
Gonzalez v Narvasa
-the question raised was whether the Executive
Secretary, upon petition of a citizen, may be ordered
to give access to the names of executive officials
holding multiple positions in government, copies of
their appointments, and a list of the recipients of
luxury vehicles seized by the Bureau of Customs and
turned over to Malacanang. The Court held the
information to be a of public concern but called
attention to the limitations on the right found in RA
No 6713, otherwise known as the “Code of Conduct
and Ethical Standards for Public Officials and
Employees,” which took effect on March 25, 1989.
This law provides that, in the performance of their
duties, all public officials and employees are obliged
to respond to letters sent by the public within fifteen
working days from receipt thereof and to ensure the
accessibility of all public documents for inspection
by the public within reasonable working hours,
subject to the reasonable claims of confidentiality.
*what the SC has said about land records is
pertinent: the power is “confined to prescribing the
manner and hours of examination to the end that
damage to, or loss of, the records may be avoided,
that undue interference with the duties of the
custodian of the books and documents and other
employees may be prevented, that the right of other
persons entitled to make inspection may be insured,
and the like.”
*the Court also added: except, perhaps, when it is
clear that the purpose of the examination is
unlawful, or sheer, idle, curiosity, we do not believe
it is the duty under the law of registration officers to
concern themselves with the motives, reasons, and
objects of the person seeking access to the records.
It is not their prerogative to see that the information
which the records contain is not flaunted before
public gaze, or that scandal is not made of it. If it be
wrong to publish the contents of the records, it is
the legislative and not the officials having custody
thereof which is called upon to devise a remedy. As
to the moral or material injury which the publication
might inflict on other parties, that is the publisher’s
responsibility and lookout. The publication is made
subject to the consequences of the law.
Aquino-Sarmiento v Morato
-even the voting slips of individual members of the
Censorship Board when they pass judgment on
movies may be opened for inspection.
*but then there is also the obvious need, especially
in matters of national security and foreign relations,
of preserving a measure of confidentiality. Thus, the
right of the people to information must be balanced
Page 77 of 104
against other genuine interests necessary for the •
proper functioning of government. This is a new
area of constitutional jurisprudence for it involves
not just the right to disseminate information but the
right of access to information that is within the
control of government. While, however, it is a new
area, it is not a totally unexplored one. It is
submitted that the standards that have been
developed for the regulation of speech and press
and of assembly and petition and of association are
applicable to the right of access to information.
These, after all, are cognate rights, for they all
commonly rest on the premise that ultimately it is
an informed and critical public opinion which alone
can protect the values of democratic government.
*the government, whether carrying out its sovereign
attributes or running some business, discharges the
same function of service to the people.
Consequently, that the GSIS, in granting the loans,
was exercising a proprietary function would not
justify the exclusion of the transactions from the
coverage and scope of the right to information.
Thus, the GSIS, a government institution, may be
compelled to show documents evidencing behest
loans even if the transactions are proprietary in
nature. But while a government owned and
controlled corporation like the Government Service
Insurance System (GSIS) may be compelled to make
available the documents evidencing clean loans to
legislators, the GSIS may not be compelled to
compile a list or make abstracts of the transactions.
(on the issue of privacy, the Court said that such
matter should be raised not by GSIS but by the
borrowers)
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.
1. Right to Association
• Original provision (on right to form association)
 inserted in the bill of rights by the 1935
constitution
o Proposed provision: “The right to form
association for purposes not contrary to
law shall not be abridged.”
o Proponent Delegate Laurel (borrowed
from Art. 20, title IV, Malolos Constitution)
 Admitted that - Right was already •
recognized constitutional right
although not protected by explicit
constitutional guarantee
(American or early Philippine
Consti-law)
Debate  Whether the phraseology of Laurel’s
proposal was a desirable one
o Delegate Ventanilla – fear that the phrase
“for purposes not contrary to law” might
have the effect of elevating existing
statutory laws on association to the level
of constitutional precepts (This objection
was not seriously considered)
o Delegate Perfecto - fear that the phrase
“for purposes not contrary to law” would
render the guarantee like the “carabina
de Ambrosio, colgado de un clavo”
(“Ambrose’s carbine, to hang on a nail”)
o Delegate Roxas – fear that the phrase
“for purposes not contrary to law” could
be interpreted by the courts to mean that
the existence ore legality of associations
depended on the whim of the legislature
 Admitted that – phrase could also
mean that the right was “subject
to police power”
 Opposed the phrase – an explicit
statement of the limitive effect of
police power on one right might
give the impression that the other
rights were not so limited if their
corresponding constitutional
guarantee did not contain a similar
limiting phrase
o Delegate Orense – satisfied with the hope
that the courts would interpret the phrase
in Roxas’ second sense
o Delegate Laurel – phrase meant that the
right was subject to police power and,
rather inconsistently with the position he
had taken in the debates on obligation of
contracts, he argued there that there was
no harm in making the limitive force of
police power explicit
1935 provision was approved as proposed
o Right to form associations shall not be
impaired without due process of law
o Therefore, an aspect of general right of
liberty
o Specifically, an aspect of freedom of
contract
 In so far as associations may a
have for their object the
advancement f beliefs and ideas,
freedom of association is an
aspect of freedom of expression
and of belief
Forms of associations
o Contractual associations
o Associations for the advancement of
ideas and beliefs
Page 78 of 104
 o Other purposes – social clubs, athletic
clubs, fraternal societies, garden clubs
and etc.
• The instinct to organize is a very basic human
drive (all these are protected by Sec. 8)
o Framers of the 1935 Consti. Recognized
the importance of this drive and saw fit to
protect it with a special provision rather
than merely infer its protection from the
due process clause or from other consti.
guarantees.
• Section 1 – consti. Recognizes a hierarchy of
values (  footnote: Phil. Blooming Mills
Employees v. Phil. Blooming Mills, 1973)
o Degree of protection an association
enjoys depends on the position which the
association’s objective or activity
occupies in the constitutional hierarchy of
values
o E.g.  object of association is the
advancement of a common political belief
such as racial equality, in any law which
either ha the effect of limiting
membership in such association or
blunting its effectivity must satisfy the
more stringent standards for allowable
limitation of expression and belief ( 
footnote: NAACP v. Alabama, 1958;
NAACP v. Button, 1963)
• Provision guarantees the right to form
associations
o Not include the right to compel others to
form an association
o Except – situations which by entering into
a contract, one may also be agreeing to
join an association
 E.g.  A land buyer who buys a lot
with an annotated lien that the lot
owner becomes an automatic
member of a homeowner’s
association thereby voluntarily
joins the association (  footnote:
Bel- Air v. Dionisio, 1989)
 E.g.  One who becomes an
employee of an establishment that
has a closed shop agreement with
the union thereby becomes a
member of the union (  footnote:
Tanduay Distillary Labor Union v.
NLRC, 1987; Volkschel Labor
Union v. Bureau of Labor
Relations, 1985)
2. Right of Association in the 1987 text
• 1973 Consti.  Preserved the 1935 text
• 1987 Consti.  significant changes (for the text,
pls. refer to section 8 – go to the previous page)
• Right  recognized belonging to the people
o Includes those who are:
 Employed or unemployed
 Government employee or Private
employee
• Provision  recognizes right to form associations
includes the right to unionize
• Commissioner Eulogio R. Lerum
o Explained that the modification included
three categories:
 Government employees
 Supervisory employees
 Security guards
o Made of record the explicit intent to
repeal provisions of PD No. 442 the Labor
Code:
• Right of civil servants to unionize is also
recognized in Article IX, V, Section 2(5) which
says: “ The right to self-organization shall not be
denied to government employees”
o Recognized whether employees perform
government or propriety functions
• Commissioner Blas Ople (Minister of Labor under
the Marcos Regime) pointed out  government
tended to interpret the Civil Service provisions of
the 1973 Consti. In so narrow a manner as to
deprive 1,200, 000 government employees of
there right to self-organization
• Right of labor in general to unionize is again
recognized in Article XIII, Section 3: “[The State]
shall guarantee the rights of all workers to self-
organizations, and peaceful concerted activities,
including the right to strike in accordance with
law.”
o Right to strike - qualified by the phrase
“in accordance with law”
o Right to organize – seen as broader than
the right to strike
 Right to strike may be limited by
law and may be narrowly curtailed
in case of certain classes of
workers in both the public and
private sector
o Commissioner Lerum – who argued for
the right of the government employees to
When we unionize,
proposed addressed the question
this amendment of the
providing
right to strikeof
for self-organization thus:
government employees,
it does not mean that because they have the
right to organize, they also have the right to
strike. That is a different matter. We are only
talking about organizing, uniting as a union.
With regard to the right to strike, everyone will
remember that in the Bill of Rights, there is a
provision that the right to form associations or
Page 79 of 104
societies whose purpose is not contrary to law
shall not be abridged. Now then, if the purpose
of the state is to prohibit the strikes coming
from employees exercising government
 Article XIV, Section 13, which said: “The
National Assembly may authorize, upon payment of
just compensation, the expropriation of private
lands to be subdivided into small lots and conveyed
a cost to deserving citizens.”

The former was a copy of Article XIII, Section

• Thus ‘they’ do not have a constitutional right to
strike
o Employees of the Social Security System (
 footnote: Social Security System v. CA,
1989)
o Public School teachers (  footnote:
Manila Public School Teachers Association
v. Secretary of Education, 1991 –The
dissenting justices argued that the right
to strike could be deduced from the
freedom of speech)
 Current ban on them against
strikes is statutory and may be
lifted by statute
3. The Right of association in action: labor,
subversion
• Phil. Jurisprudence – The right of Association has and operate vital industries and, upon payment of
figured in litigation involving two areas of just compensation, transfer to public ownership
associational activity:
o Labor unionism
o Communist organization
6 of the 1935 Constitution and the later modified
Section 4, Article XIII, of the 1935 Constitution (“The
Congress may authorize, upon payment of just
compensation, the expropriation of lands to be
subdivided into small lots and conveyed at cost to
individuals.”
The provision on social justice and equitable
diffusion (Article II, Sec. 6 [1973]) of property as well
as the provision on agrarian reform (Article XIV,
Section 12 [1973]) of the earlier constitutions also
affect the jurisprudence on expropriation for resale.
Article XII, Section 18, of the new
Constitution now also provides: “The State may in
the interest of national welfare or defense, establish
utilities and other private enterprises to be operated
by the government.”

SECTION 9. PRIVATE PROPERTY SHALL NOT BE

TAKEN FOR PUBLIC USE WITHOUT JUST II. Eminent domain: Definition, nature.
COMPENSATION.
“The right of eminent domain is usually
understood to be he ultimate right of the
sovereign power to appropriate, not only the
I. Eminent Domain
public but the private property of all citizens
Aside from the above provision, there were within the territorial sovereignty, to public
two other eminent domain provisions in the 1973 purpose.”
Constitution:

Article XIV, Section 6, which said: “The State

may, in the interest of national welfare or defense,
establish and operate industries and means of
Churches are outside the commerce of man under
transportation and communication, and, upon
the Spanish Civil Code. But in Barlin v. Ramirez,
payment of just compensation, transfer to public
the Court said that “by virtue of the power of
ownership utilities and other private enterprises to
eminent domain… the government might have
be operated by the government,” and
appropriated this church or other churches.

The delegated power of eminent domain of local

governments is strictly speaking not a power of

Page 80 of 104
eminent but of inferior domain- a share merely in And that is what the legislature did; it authorized the
eminent domain. Hence, it is only as broad as the City of Manila to expropriate the specific parcel of
eminent authority would allow it to be. property- which accounts for the present extension
of Rizal Avenue across what once was a portion of
the Chinese cemetery.

City of Manila v. Chinese Community of Manila

At issue in the case was authority over a portion of a

Chinese cemetery which had been established under
authority of the Spanish Governor-General and III. PUBLICE USE
“founded and maintained by the spontaneous and
fraternal contribution of their protector, merchants
and industrialists.” It was a cemetery “adjusted to
Article III, Section 9, puts the matter more
the taste and traditional practices of those born and
succinctly: “Private property shall not be taken for
educated in China” and authorized by the Spanish
public use without just compensation.”
government as a mark of recognition of the civic
contribution of Chinese nationals.

There are thus two constitutional limitations on the

power of eminent domain:
The city was seeking to expropriate a portion of the
property in order to open a street through the (1)The purpose of the taking must be public use,
cemetery. Did the city have authority to do it? and

(2) Just compensation must be given to the private

owner.
Considering the nature of the property,
expropriation was doubtless offensive to the cultural
sensibilities of the Chinese. The Court, while
disavowing the belief “that the dead must not give What then is the meaning of public use which can
place to the living,” did find a legal solution to what justify state appropriation of private property?
was undoubtedly also a social dilemma.

Time was when the term “public use” was

The Court asserted that a cemetery open to the understood as the equivalent of “use by the public.”
public was already in public use “and no part of the
ground could be taken for other public uses under a
general authority.
The eminent Cooley, writing in 1868, said that there
can be no government seizure and appropriation of
property unless the purpose implies “possession,
And general authority was all that the City of Manila occupation, and enjoyment of the land by the public
could show. Hence, it was without authority to or public agencies.”
expropriate the property. But the Court said that “if
the legislature under proper authority should grant
the expropriation of a certain or particular parcel of
This narrow definition of public use, however, has
land for some specified purpose, the courts would
since been rejected.
be without authority to enquire into the purpose of
the legislation.”

Page 81 of 104
Thus, what has emerged is a concept of public use price; the general or ordinary price for which
which is as broad as public welfare. The scope of the property may be sold in the locality.”
power of eminent domain has become as broad as
the expansive and ever expanding scope of police
power itself.
In terms of time, what is the point of reference for
assessing the value of a piece of property?

Moreover, jurisprudence considers action by the

state to carry out its duty to provide housing as an The general rule is that the value must be that as of
exercise of police power superior to the obligation of the time of the filing of the complaint for
contracts. expropriation. (Section 4, Rule 67, Rules of Court).

8. NATIONAL POWER CORPORATION V. COURT

OF APPEALS
IV. JUST COMPENSATION
The filing of the case generally coincides with the
taking. When, however, the filing of the case comes
later than the time of taking and meanwhile the
Much of the eminent domain litigation that has
value of the property has increased because of the
reached the SC deals with the adequacy of the
use to which the expropriator has put it, the value is
compensation given. For this reason, the concept of
that of the time of the earlier taking. Otherwise the
“just compensation” has received ample treatment
owner would gain undeserved profit. But if the value
for the Court and a fairly complete explanation of
increased independently of what the expropriator
the concept was formed even in the early 1900s.
did, then the values is that of the later filing of the
case.

PROVINCE OF TAYABAS V. PEREZ Moreover, between the time payment is due and the
actual payment, legal interest accrues.
Just compensation has been described as the “just
and complete equivalent of the loss which the owner
of the thing expropriated has to suffer by reason of
the expropriation.” 9. FORFOM DEV’T VS. PNR

This is clearly illustrated in this case.

MANILA RAILROAD CO. V. FABIE

Expressed differently, the compensation given to
the owner is just if he receives for his property a
sum equivalent to its “market value.” “Market
value” has been described in a variety of ways. It is
the “price fixed by the buyer and seller in the open
market in the usual and ordinary course of legal
trade and competition; the price and value of the
article established or shown by sale, public or
private, in the ordinary way of business; the fair
value of property as between one who desires to
purchase and one who desires to sell; the current
The Philippine National Railway had taken
possession of property to be used for the extension
of a railway system. No expropriation case was filed
and no compensation was given while the PNR
continued to negotiate with the owners. Years later,
with the owners still unpaid, they asked for the
return of property and damages based on unrealized
profits. Clearly there was taking and it was for public
use.

Page 82 of 104
The Court ruled that the proper remedy was for an
expropriation court to appoint assessors to
determine the value of the property as of the time of
the PNR’s entry. The just compensation could be the
amount determined by assessors together with 6%
interest.
The owners also asked for the surrender to them of
whatever rental PNR might have received for the
leased portions of the property. But the property
had been leased out by PNR for the purpose of
relieving housing problem along the railway. It was
therefore also a public use.
Just compensation, moreover, is due not to the
owner alone. “The defendants in an expropriation
case are not limited to the owners of the property
condemned. They include all other persons owning,
occupying or claiming to own the property. When a
parcel of land is taken by eminent domain, the
owner of the fee is not necessarily the only person
who is entitled to compensation. In the American
jurisdiction, the term ‘owner’ when employed in
statutes relating to eminent domain to designate the
persons who are to be made parties to the
proceeding, refer, as is the rule in respect of those
entitled to compensation, to all those who have
lawful interest in the property to be condemned,
including a mortgagee, a lessee and a vendee in the
possession under an executor contract.

Moreover, the face that the owners had negotiated

with the PNR for whatever compensation might be
Every person having an estate or interest at law or
due stopped them from asking for the return of the
in equity in the land taken is entitled to share in the
property which, in any case, had to remain with the
award. If a person claiming an interest in the land
PNR as a matter of public policy.
sought to be condemned is not made a party, he is
given the right to intervene and lay claim to the
compensation.
10.COMMISSIONER OF PUBLIC HIGHWAYS V.
BURGOS

It has also been held that Article 1250 of the Civil 12.MANILA RAILROAD CO. V. PAREDES
Code governing adjustments needed due to inflation
is a rule on contracts and is not applicable to the A similar right of immediate entry was given to
computation of compensation in expropriation even railroad companies by Section 1 of Act 1592.
if payment comes long after actual taking.

Now the rule is found in Rule 67 of the Rules of

11.DE KNECHT V. COURT OF APPEALS Court.

13.KNECHT V. MUNICIPALITY OF CAINTA

For purposes of entry into the property prior to full

payment, Section 10 of R.A. 7160 requires a deposit
with the proper court of at least 15% of the fair
market value of the property based on the current
tax declaration of the property to be expropriated.

14.REPUBLIC V. JUDGE GINGOYON

There is a special rule, however, in expropriation for

infrastructure projects. Whereas under Rule 67 of

Page 83 of 104
the Rules of Court entry may be made into the
property even before payment provided that a
deposit of an amount fixed by the court is made,
under R.A. No. 8974 the government, in
infrastructure projects, must make a direct payment
(not just a deposit under Rule 67) of the proffered
value of the property before it can enter and
exercise proprietary rights. Against the objection
that Congress may not amend the Rules of Court,
the argument given was that expropriation involves
both substance and procedure and the substantive
aspect is within the reach of the legislature to
regulate.
During the debates on Article III, Section 1 (1), of the
1935 Constitution, several amendments, the
principal tenor of which was to demand “previous
compensation,” were proposed.
Delagate Diez argued that the provision was not
novel one in Philippine legal history: it was
embodied in Article 349 of the Spanish Code, it was
embodied in the Malolos Constitution; it was
provided for in an early constitutional draft prepared
by Cayetano Arellano.

Is the right of immediate entry before payment

constitutional? Moreover, he added that it was provided for in the
constitutions of many American states. Such a
provision, he said, would prevent the said cases,
15.CITY OF MANILA V. BATTLE common in provincial towns, of long delays in the
grant of final compensation. He argued that seldom
The government’s right of immediate entry was had there been a real necessity for the state to take
involved. The Court said that the deposit of the immediate possession and, in these rare instances
money with the court was necessary and sufficient of real necessity, exceptions, he said, could be made
to satisfy the compensation requirement of the by law.
constitution.

16.MANILA RAILROAD CO. V. PAREDES

Unconvinced by Diez’ argument and fearing undue
A railroad company’s right to immediate entry was paralyzation of governmental efforts, the
discussed more extensively and the discussion is Convention rejected the amendment.
applicable to any situation where a right of
immediate entry may be given to the condemnor.

Another amendment proposed was the require

“compensation previously assessed and tendered.”
Reviewing conflicting American authorities, the It was thought that while such a requirement would
Court said that “according to the weight of not unduly paralyze the state (because immediate
authority, if the constitution or statutes do not assessment would be made by the judge and not by
expressly require it, actual payment or tender commissioners), it would at least assure private
before taking is unnecessary, and it will be sufficient owners prompt payment.
if a certain and adequate remedy is provided by
which the owner can obtain compensation without
any unreasonable delay.”
The proponents of this amendment seemed to have
had in mind a procedure not unlike that already
found in Section 2 of Act 2826 and in Section 1 of
The Court opted for this more liberal view and found Act 1592 which required, as a pre-requisite for
that the statute in question with its provision for immediate possession, the deposit of an amount
deposit of the money with the courts satisfied summarily determined by the judge and changeable
constitutional requirements. in its total sum upon appraisal of proper evidence.

Page 84 of 104
 The reason for this is that both the Bill of Rights and
Article XIII, Section 4 (1935), “prohibit any
The proposed amendment therefore, while it did not disturbance of proprietary rights without coetaneous
improve existing statutory law, could have raised payment of just indemnity.”
the statute to the level of a constitutional precept.
But the proposal was rejected by the Convention.

19.FAMILARA V. J. M. TUASON & CO.

At present, the right to enter into immediate As the Court said:

possession of the property even before the final
ascertainment and payment of just compensation is
given to any plaintiff. The pertinent Rules of Court “Definitely, to hold that the mere declaration of an
provision (Section 2, Rule 67) reads: intention to expropriate, without instituting the
corresponding proceeding therefor before the
courts, with assurance of just compensation, would
“Upon the filing of the complaint or at any time already preclude the exercise by the owner of his
thereafter the plaintiff shall have the right to take or rights of ownership over the land, or bar the
enter upon the possession of the real or personal enforcement of any final ejectment order that the
property involved if he deposits with the National or owner may have obtained against any intruder into
Provincial Treasurer its value, as provisionally and the land, is to sanction an act which is indeed
promptly ascertained and fixed by the court having confiscatory and therefore offensive to the
jurisdiction of the proceedings, to be held by such Constitution.”
treasurer subject to the orders and final disposition
of the court…

20.SAN DIEGO V. VALDELLON

17.NATIONAL POWER CORPORATION V. JUDGE
JOCSON It has been held, however, that where entry is to be
made upon payment of the amount fixed in P.D. No.
Moreover, P.D. No. 42 removed the discretion of the
42 which governs entry before actual payment, prior
court in determining provisional value. What is to be
hearing for the purpose of determining necessity is
deposited is an amount equivalent to the assessed
not required.
value for taxation purposes. No hearing is required
for that purpose. All that is required is notice to the
owner of the property sought to be condemned.
Reliance on the Transitory Provisions (1973) as
confirmatory of P.D. No. 42, however, somehow
18.TUASON V. COURT OF APPEALS confused the issue in this case.

The SC, however, has been careful to point out that

it is not the mere filing of the condemnation
Aside from the assurance of adequate
proceedings which suspends the condemnee’s
compensation, does the Constitution also specify
dominical rights but the deposit of the amount
the form of compensation?
summarily determined by the court.

Must compensation be in cash?

Page 85 of 104
The Rules of Curt, Rule 67, Section 10, speaks of the constitutional requirement, so also it would not be
“amount” to be paid as compensation, and Section 9 unreasonable for a liberal approach to the problem
of the same Rule speaks of “sum or sums.” to allow compensation in the form described above.

Jurisprudence which treats of compensation speaks
of “price, sums of money, amount of money.” One
writer would go so far as to say that by existing
jurisprudence “just compensation has invariably
been construed to mean fair market value in cash.
Indeed, a liberal approach to the problem seems to
be dictated by constitutional policy on land
distribution. Both the Agricultural Land Reform Law
and Presidential Decree No. 27 under the former
dispensation were attempts to solve this problem of
land distribution which, in the present history of the
country, has bee clamoring for an adequate solution.

Section 80, however, of the Agricultural Land

Reform Code, R.A. No. 3844, provided that the
condemnee should be paid 10% in cash and the And now, Article XIII, Section 8, of the 1987
remaining 90% in bonds issued by the Land Bank. Constitution, which says “Financial instruments used
as payment for their lands shall be honored as
equity in enterprises of their choice,” clearly means
that payment need not be in cash.
A similar structure of payment is also provided for in
P.D. No.27 which calls for payment in fifteen equal
annual installments guaranteed with shares of
stocks in government owned or controlled The Agrarian Reform Law now provides for partial
corporations. payment in bonds and it has been ruled that
government owned corporations like the GSIS are
obliged to accept at face value Land Bank notes
earlier received as payment for expropriated land.
Do these forms of payment satisfy the requirements
of just compensation?

22.MADDUMBA V. GSIS
No case arose under the 1973 Constitution in which Jurisprudence has recognized that land owners
this question could have been squarely set before seldom get what they want for their land, a situation
the Court. It should be noted, however, that, just as which can be aggravated should they be compelled
the Constitution does not require prior to accept land Bank notes at discount.
compensation, neither does it specify that
compensation be in money. What it does require is
just compensation.
23.RAMIREZ V. COURT OF APPEALS

“If landowners are called to sacrifice in the interest o

21.MANILA RAILROAD CO. V. PAREDES f land reform, by their acceptance of Land Bank
bonds in payment of their agricultural lands,
“It will be sufficient if a certain and adequate government lending institutions should share in the
remedy is provided by which the owner can obtain sacrifice by accepting the same Land Bank bonds at
compensation without any unreasonable delay.” their face value, as tendered by landowners in
payment of their loans with such government
lending institutions, as long as such Land Bank
bonds are derived by landowners from the sale of
And just as entry by the condemnor prior to actual
their agricultural lands to the Land Bank.”
payment has been upheld as satisfying the

Page 86 of 104

Finally, of interest is the question whether just
compensation may be fixed by legislation.
Presidential Decree No. 42 fixed the just
compensation at either the value declared by the
owner for tax purposes or the assessed value,
whichever is lower.
commissioners under Rule 67 of the Rules of
Court. Moreover, the need to satisfy the due
process clause in the taking of private
property is seemingly fulfilled since it cannot
be said that judicial proceeding was not had
before the actual taking.

The decree was issued November 9, 1972, two
months before the declared ratification of the 1973
Constitution.
A number of decisions (Arce v. Genato; San Diego v.
Valdellon; Municipality of Daet v. CA) assumed that
the decree became part of the law of the land via
the Transitory Provisions.
24.EXPORT PROCESSING ZONE V. DULAY
The just compensation provision of P.D. 42 and
similar decrees were declared unconstitutional:
However, the strict application of the decrees
during the proceedings would be nothing
short of a mere formality or charade as the
court has only to choose between the
valuation of the owner and that of the
assessor, and its choice is always limited to
the lower of the two.
The court cannot exercise its discretion or
independence in determining what is just or
fair. Even a grade school pupil could
substitute for the judge insofar as the
determination of constitutional just
compensation is concerned.”

“The method of ascertaining just REPUBLIC V. COURT OF APPEALS

compensation under the aforecited decrees However, cases applying P.D. No. 42 and similar
constitutes impermissible encroachment on laws which have long become final may no longer be
judicial prerogatives. It tends to render this opened for enquiry.
Court inutile in a matter which under the
Constitution is reserved to it for final
determination.
JUST COMPENSATION IN LAND REFORM

In a long line of cases, the Court has consistently

Thus, although in an expropriation ruled that compensation for property expropriated
proceeding the court technically would still must be determined as of the time the expropriating
have the power to determine the just authority takes possession thereof and not as of the
compensation for the property, following the institution of the proceedings. (REPUBLIC V.
applicable decrees, its task would be SARABIA)
relegated to simply stating the lower value of
the property as declared either by the owner
of the assessor.
There is, however, a little confusion in this because
the general rule in the Rules of Court for
determining “just compensation” in eminent domain
As a necessary consequence, it would be is the value of the property as of the date of the
useless for the court to appoint filing of the complaint.

Page 87 of 104
But this is because normally the time of the taking JUGALBOT V. COURT OF APPEALS
coincides with the filing of the complaint for
Since land acquisition under either P.D. No. 27 and
expropriation. The general rule, however, admits of
the Comprehensive Agrarian Reform Law is an
an exception. Simply stated, the exception finds
extraordinary method of expropriating private
application where the owner would be given undue
property, the law must be strictly construed. Faithful
incremental advantages arising from the use to
compliance with legal provision especially those
which the government devotes the property
which relate to the procedure for acquisition of
expropriated- as for instance, the extension of a
expropriated lands, e.g., the need for notice, should
main thoroughfare, which increased the value of the
be observed.
property after it, was taken but before expropriation
petition was filed. (NPC V. LUCMAN IBRAHIM)

LAND BANK V. DOMINGO

MIAA V. RODRIGUEZ As a concept in the Bill of Rights, just compensation

is defined as the fair or market valued of the
Thus where the government occupied a piece of
property as between one who receives, and one who
private land for the extension of its airport runway
desires to sell. R.A. No. 6657 requires that just
but without expropriating it and after lapse of many
compensation should be the full and fair equivalent
years the owner seeks compensation and rental, for
of the property taken from its owner by the
purposes of compensation the value of the land
expropriator, the equivalent being real, substantial,
should be based on what it was worth at the time of
full and ample.
entry and not its value after many years. Beyond the
payment for the value of the land the owner is
entitled to legal interest, not rental.
The concept of just compensation, however,
embraces not only the correct determination of the
amount to be paid to the owners of the land, but
Just compensation also applies in agrarian reform.
also payment within a reasonable time from its
taking. Without prompt payment, compensation
cannot be considered “just” inasmuch as the
Section 4, Article XIII of the 1987 Constitution property owner is made to suffer the consequences
mandates that the redistribution of agricultural of being immediately deprived of his land while
lands shall be “subject to the payment of just being made to wait for a decade or more before
compensation.” actually receiving the compensation.

The deliberations of the 1986 Constitutional
Commission on this subject reveal that just
compensation should not do violence to the Bill of
Rights but should also not make an insurmountable
obstacle to a successful agrarian reform. Hence,
landowners’ right to just compensation should be
balanced with the purpose of agrarian reform. It is
the duty of the court to protect the weak and the
underprivileged, but this duty should not be carried
out to such an extent as to deny justice to the
landowner whenever truth and justice happen to be
on his side.
Put differently, while prompt payment of just
compensation requires the immediate deposit and
release to the landowner of the provisional
compensation as determined by the DAR, it does not
end there. Verily, it also encompasses the payment
in full of the just compensation to the landholders as
finally determined by the courts. Thus, it cannot be
said the there is already prompt payment of just
compensation when there is only a partial payment
thereof. (LAND BANK V. SPOUSES ORILLA)

Page 88 of 104
 step in to make up the difference between what the
farmer can afford and what is due to the landowner.
5. Just Compensation in the 1987 Constitution
*the discussions of just compensation by the 1986 *Commissioner Bernas pointed out that that this
Constitutional Commission reveal both adherence to would fine tune the meaning of just compensation in
traditional jurisprudence on the subject and order to “give substance and meaning to the
adjustment to the demands of social justice. general concept of social justice as an attempt to
enable the law to make things more affordable for
*the subject was first discussed during the those who cannot afford.
deliberations on the Bill of Rights provision. The
Commission saw just compensation as an amount *However, an explicit constitutional provision
equal to the market value of the property: “that is, proposed by Commissioner Bernas authorizing state
the price which the property will command if the subsidy for land reform was resisted.
seller is not bound to sell and the buyer is not bound
to buy.” –commissioner bernas *Commissioner Ople argued: “I think I made my
meaning clear that subsidies may be necessary to
*when the question was asked what effect a make up the difference in price so that the
statutory determination of the amount of just landowner may be justly compensated. But, at the
compensation would have, Commissioner Bernas same time, subsidy must always be a last resort.
answered that any statutory determination of just And I think the less that is said about it the better,
compensation would be “only a prima facie so that it does not become an open invitation in the
assessment. In the end, the final determination of future to potential confabulators. We know all about
whether or not the compensation is just will have to some of these scandals in land pricing. It is very
be made by the court.” He added that any law fixing easy for a government bureaucrat and a landowner
the amount that would constitute just compensation in Mindanao to fix a price so that both of them will
would not be binding on the courts “because it is a gain the expense of the taxpayer.”
question of fact which is always subject to review by
the courts.” *yielding to Ople’s argument, Bernas withdrew his
proposal adding: “I also want to avoid a situation
*and no one contradicted him when he said: “I think where we make acquisition of land so easy that, in
I will be speaking for the Bill of Rights Committee effect, it may encourage the inefficient use of
when I say that whatever determination there may resources.”
be in a decree or law of what just compensation is,
is always subject to review by the courts.” (as *it is arguable, however, as will be pointed out under
already seen, this view has been affirmed by the Article XIII, Section 4, that just compensation in land
Court. Export Processing Zone v Dulay) reform, since expropriation in land reform is both an
eminent domain act and a police power act, can be
*thus, Bernas resisted as unnecessary an made less than market value.
amendment which sought to add the phrase “as
determined by the proper court.” *another matter taken up by the Commission was
the proposal to require “prior payment of just
*the subject of just compensation again came up for compensation” in land reform expropriations.
discussion during the deliberations on land reform. Commissioner Regalado proposed the amendment
Article XIII, Section 4 dictates that the redistribution as a measure to protect the interest of landowners.
of agricultural lands shall be “subject to the Regalado’s explanation, however, revealed that all
payment of just compensation.” With just he wanted was what already obtains in
compensation seen as equivalent to the market expropriation laws which requires a court deposit
value of the property, the requirement of payment prior to entry into the condemned property. But
of just compensation was seen by some sectors as Regalado was satisfied when this meaning was
an insurmountable obstacle to the achievement of accepted by the Commission and he did not insist on
the goals of land reform because the intended an explicit constitutional provision.
beneficiaries would not be able to afford the
payment of market value. 6. Expropriation for resale to the landless.
*although there has been clear and constant
*the Commission’s understanding, however, was affirmation in Philippine Jurisprudence that the
that full compensation need not come from the power of eminent domain is inherent in government
beneficiary. Land reform could require that the state and, hence, need not be specifically granted by the
Constitution, redistribution of land in the Philippines

Page 89 of 104
is such a matter of great urgency that both the 1935 the sale of bonds. In a large measure, therefore, the
and 1973 Constitution already saw fit to formulate a friar land question was solved without the need of
special provision on expropriation of land for resale. the exercise of eminent domain powers.
The extent of this power, as presently understood,
took a little while to get accepted. *The religious corporations, however, were not only
holders of large landed estates. The encomienda
*the significance of expropriation of large system brought to the Philippines by the Spaniards
landed estates may be gathered from the role land created a big landlord class formed from aristocratic
tenure had held in the political and social history of families who had served Spanish officialdom well.
the country. One of the immediate causes of the (footnote: “The Spaniards took to the Philippines the
revolt against Spain were the abuses connected with encomienda system which they used in their
extensive land holdings of various religious American possessions. A large part of the land, and
corporations. So intense was the feeling of the the best at that, was thus handed over with its
Filipino leadership in this regard that one article of natives to the ownership of the Catholic Church or to
the Malolos Constitution said: “...all the buildings, Spanish or half-caste families, who were termed
properties, and other belongings possessed by the Caciques. The natives who cultivated the
religious corporations in these islands will be encomiendas were not hired labourers, but
understood as restored to the Filipino government.” remnants of
small holders or inquilinos.”
*after the transfer of sovereignty over the
islands by the Treaty of Paris, this demand of the *and it is not disputed that the communist uprisings
Filipino leadership was not forgotten and the of the 1930’s arose largely out of discontent over
American administration was confronted with the the inequitable distribution of land. The speeches
problem of winning Filipino corporation and at the and publications of socialist leaders which became
same time reconciling Filipino demands with the the basis of prosecutions for seditious utterances in
terms of the Treaty of Paris which protected the 1930s sufficiently illustrate this fact. And the
religious and property rights of persons and continuing effort of the government to remedy this
corporations. situation has not yet totally resolved the problem. A
disenchanted peasantry remains even today a major
*confiscation of friar lands was out of the source of recruitment for the armed forces of
question. The Schurman Commission, sent by communism in the Philippines.
President Mckinley to survey the Philippine situation,
suggested that the purchase of the friar lands *during the debates on Article XIII, Section 4 (1935),
“would have good results” and recommended “early authorizing the expropriation of lands for subdivision
consideration of this solution by the government of lands for subdivision and resale, Delegate Araneta
hereafter to be established in the Archipelago.” raised the question whether the provision was at all
necessary considering the state’s inherent power of
*the Taft Commission which followed up the eminent domain. In reply, Delegate Laurel recalled
work of Schurman Commission renewed the same that Secretary Elihu Root had expressed the opinion
recommendation and more specifically asked for that the expropriation and redistribution of lands for
“authority to issue bonds with which to buy up the the purpose of preserving peace and order was a
agricultural holdings and other property of the public enough purpose to come under the right of
religious orders...” The Taft Commission moreover eminent domain; but Governor Taft, according to
believed itself in a position to say that there was a Laurel, was of the contrary opinion. Whether or not
willingness on the part of ecclesiastical authorities Laurel accurately reported the opinions of Root and
“to negotiate and part with all the land to the Taft is not important for the purpose of this essay. It
government at reasonable prices.” should also be recalled that religious authorities
were not unwilling to sell. Laurel himself did not give
*Taft’s belief that religious authorities were a categorical answer to Araneta’s question; but
willing to negotiate the sale of religious property implicit in the former’s reply wad the significant
was subsequently borne out by history. The problem suggestion that Article XIII, Section 4 (1935), would
thereby was removed from the strict ambit of remove whatever doubt Governor Taft might have
eminent domain powers and was treated as a succeeded in raising, if indeed, he entertained the
diplomatic challenge. Taft himself headed a doubt attributed to him.
diplomatic mission to Rome in 1902 and, within two
and a half years, there was effected a purchase of *a fuller explanation of the purpose of Article XIII,
nearly all the lands in question for the amount of a Section 4 (1935), may be found in a speech of
little over seven million dollars, which was raised by Delegate Cuaderno, the author and sponsor of the

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provision. In a speech before the Convention
entitled “Large Estates and Trusts in Perpetuity,” he *The resolution of the doubt mentioned by Aruego
said: and alluded to by Laurel hinged on an
understanding of the concept of “public use.”
There has been an impairment of pubic tranquillity, Strangely enough, however, almost nothing was said
and to be sure a continuous impairment of it, about the concept in the abstract. The statement
because of the existence of these conflicts. In our was made that “public use” was an elastic concept
folklore the oppression and exploitation of the that could mean “public utility” or “public
tenants are vividly referred to; their sufferings at the necessity.” It was also said that an elaborate
hand of the landlords are emotionally pictured in our irrigation system undertaken by the government to
drama; and even in the native movies and talkies of benefit large tracts of arid private and would still
today, this theme of economic slavery has been satisfy the flexible the requirement of “public use.”
touched upon. In official documents these same Beyond this, nothing else was said on the concept.
conflicts are narrated and exhaustively explained as And, certainly, there was no direct attempt to link
a threat to social order and stability. expropriation and resale of land with the concept of
“public use.”
But we should go to Rizal for inspiration and
illumination in this problem of the conflicts between Guido v Rural Progress Administration
landlords and tenants. The national hero and his -the most interesting eminent domain decisions
family were persecuted because of these same under the 1935 Constitution were those dealing with
conflicts in Calamba, Rizal himself met a martyr’s expropriation under Article XIII, Section 4. The first
death because of his espousal of the cause of the significant decision which put the article to use
tenant class, because he would not close his eyes to -under the authority of this constitutional provision
oppression and persecution with his own people as the National Assembly had passed Commonwealth
victims. Act no. 539. Sections 1 and 2 of the statue read:

I ask you gentleman of the Convention, knowing this
as you do and feeling deeply as you must feel over
the immolation of the hero’s life, would you not
write in the Constitution the provision on large
estates and trusts in perpetuity, so that you would
be the very instrument of the Providence to
complete the labours of Rizal to insure domestic
tranquillity for the masses of our people?
If we are to be true to our trust, if it is our purpose in
drafting our constitution to insure domestic
tranquillity and to provide for the well-being of our
people, we cannot, we must not fail to prohibit the
ownership of large estates, to make it the duty of
the government to break up existing large estates,
and to provide for their acquisition by purchase or
through expropriation and sale to their occupants,
as has been provided in the Constitution of Mexico
and Yugoslavia.
*no amendment was offered and no debate ensued.
The resolution was readily and totally approved by
the Convention. Delegate Aruego, in his
authoritative account of the Convention debates,
has offered the interpretation that the purpose of
Cuaderno’s recommendation was to “remove all
doubts as to the power of the government to
expropriate the then existing landed estates to be
distributed at cost to the tenant-dwellers thereof in
the event that in the future it would deem such
expropriation necessary to the solution of agrarian
problems therein.
Section 1. The President of the Philippines is
authorized to acquire private lands or any interest
therein, through purchase or expropriation, and to
subdivide the same into home lots or small farms for
resale at reasonable prices and under such
conditions as he may fix to their bona fide tenants or
occupants or to private individuals who will work the
lands themselves and who are qualified to acquire
and own lands in the Philippines.
Section 2. The President may designate any
department, bureau, office or instrumentality of the
National Government, or he may organize a new
agency to carry out the objectives of this Act. For
this purpose, the agency so created or designated
shall be considered a public corporation.
-defendant Rural Progress Administration was the
administrative agency charged with implementing
the law. The law was now being invoked to justify
the purchase of two adjoining lots belonging to
plaintiff and having a combined area of 22, 655 sq.
meters. The Court was faced with a fundamental
question: What ‘lands’ did Article XIII, Section 4
have in view? The Court ruminated thus:
There are indeed powerful considerations, aside
from the intrinsic meaning of section 4 of Article XIII
of the Constitution, for interpreting Act No. 539 in a
restrictive sense. Carried to extremes, this Act
would be subversive of the Philippine political and
social structure. It would be in derogation of

Page 91 of 104
individual rights and the time-honored constitutional doubts as to the power of the government to
guarantee that no private property shall be taken for expropriate the then existing landed estates to be
private use without due process of law... distributed at cost to the tenant-dwellers thereof in
the event that in the future it would deem such
Hand in hand with the announced principle, herein expropriation necessary to the solution of agrarian
invoked, that “the promotion of social justice to problems therein.”
insure the well-being and economic security of all
the people should be the concern of the state,” is a -hence, the size of the land expropriated, the large
declaration, with which the former should be number of people benefited, and the extent of the
reconciled, that “the Philippines is a Republican social and economic reform secured by the
state created to secure to the Filipino people “the condemnation must be such as to clothe the
blessings of independence under a regime of justice, expropriation with the character of public interest
liberty and democracy.” Democracy, as a way of life and public use. Such requirement is satisfied when
enshrined in the Constitution, embraces as its the lands expropriated are “large estates, trusts in
necessary components freedom of conscience, perpetuity, and land that embraces a whole town or
freedom of expression, and freedom in the pursuit of city.” Thus the Court concluded:
happiness. Along with these freedoms are included
economic freedom and freedom of enterprise within The condemnation of a small property in behalf of
reasonable bounds and under proper control. In 10, 20 or 50 persons and their families does not
paving the way for the breaking up of existing large insure to the benefit of the public to a degree
estates, trusts in perpetuity, feudalism, and their sufficient to give the use public character. The
concomitant evils, the Constitution did not propose expropriation proceedings at bar have been
to destroy or undermine property rights, or to instituted for the economic relief of a few families
advocate equal distribution of wealth, or to devoid of any consideration of public health, public
authorize the taking of what is in excess of one’s peace and order, or other pubic advantage. What is
personal needs and the giving of it to another. proposed to be done is to take plaintiff’s property,
Evincing much concern for the protection of which, for all we know she acquired by sweat and
property, the Constitution distinctly recognizes the sacrifice for her family’s security, and sell it at cost
preferred position which real estate has occupied in to a few lessees who refuse to pay the stipulated
law for ages... rent or leave the premises.

The promotion of social justice ordained by the
Constitution does not supply paramount basis for
untrammelled expropriation of private land by the
Rural Progress Administration or any other
government instrumentality. Social justice does not
champion division of property or equality of
opportunity, equality of political rights, equality
before the law, equality between values given and
received, and equitable sharing of the social and
material goods on the basis of efforts exerted in
their production...
-what then must be the guiding principle in
interpreting Article XIII, Section 4 (1935)? Or, to use
the language of the Court, what is its “intrinsic
meaning”? It is that the constitutional provision adds
nothing beyond a clarification of the scope of the
inherent power of eminent domain:
In reality, section 4 of Article XIII of the Constitution
is in harmony with the Bill of Rights. Without the
provision the right of eminent domain, inherent in
the government, may be exercised to acquire large
tracts of lands as a means reasonably calculated to
solve serious economic and social problem. As Mr.
Aruego says, “the primary reason” for Mr.
Cuaderno’s recommendation was “to remove all
-the Guido ruling was adhered to closely by the
cases that immediately followed.
Urban Estates, Inc. v Montesa
-summed up the doctrine thus:
In brief, the Constitution contemplates large-scale
purchases or condemnation of lands with a view to
agrarian reforms and the alleviation of acute
housing shortage. These are vast social problems
with which the Nation is vitally concerned and the
solution of which redound to the common weal.
Condemnation of private lands in a makeshift or
piecemeal fashion, random taking of a small lot here
and a small lot there to accommodate a few tenants
or squatters is a different thing. This is true, be the
land urban or agricultural. The first sacrifices the
rights and interests of one or a few for the good of
all; the second is deprivation of a citizen of his
property for the convenience of another citizen or a
few other citizens without perceptible benefit to the
public. The first carries the connotation of public
use; the last follows along the lines of faith or
ideology alien to the institution of property and the
economic and social systems consecrated in the
Constitution and embraced by the great majority of
the Filipino people.

Page 92 of 104
 misconstruing the real meaning of Article XIII,
*Clearly, then, the Guido and subsequent rulings Section 4. The majority, he said, made two
equated “public use” with “public welfare.” But does erroneous assumptions: 1. That “Section 4, Article
this enlarged concept of “public use,” when applied XIII, is an end in itself, when actually it is but one of
to expropriation of land, require as a constant factor the means chosen by the framers of the Constitution
that the land be immense in size, or is it possible forto attain social justice, amelioration and
“public welfare” to be served by the expropriation of tranquillity”; 2. “that the constitutional policy is
a small tract of land? attained by the breaking up of landed estates into
smaller portions, entirely disregarding the
Rural Progress Administration v Reyes constitutional direction that the lands condemned
-the answer to the above question given in this case are to be ‘subdivided into small lots and conveyed at
was that the size of the land need not be a constant cost to individuals.’ i.e., the tenants and occupants.”
factor. Involved in this case was a mere two hectare
lot, of which more than half were fishponds. The lot *from the premises that expropriation, subdivision
formed a part of a bigger area occupied from time and resale to tenants and occupants were
immemorial by various individual. The expropriation inseparable components of the constitutional
was made in favour of four families. scheme and that the constitutional provision
-Justice Pablo penned the decision; two other obviously had reference only to large estates in
Justices concurred; and two more concurred in the existence at the time of the adoption of the
result. The thrust of Justice Pablo’s opinion was Constitution in 1935, Justice JBL Reyes concluded
away from the land-size norm set by Guido. that any landed estate in existence in 1935
Although the small lot was considered by the Court “became liable to condemnation for the benefit of
to be part of a bigger area of friar land, the the tenants, and any subsequent acquirer of these
emphasis was not on the size of the land but on the lands took them subject to that burden or infirmity.”
requirements of social amelioration.
*after the Baylosis case, decisions closely followed
Republic v Baylosis the lines drawn in Guido.
-within two years, the Reyes decision was rejected
in this case National Resettlement and Rehabilitation
-at issue was the expropriation of 67 hectares of Administration [NARRA] v Francisco
agricultural land consisting of several smaller lots -NARRA appealed to the statement in City of
belonging to various owners. The land had formerly Manila v Chinese Community of Manila to the
formed part of a huge estate. The tenants and effect that, where the legislature itself has
occupants of the land for whom expropriation determined the necessity of the expropriation, the
proceedings had been instituted had been, by Court has no power to interfere.
themselves and by their ancestors, occupying, -the Court, however, gave the cryptic reply that “the
clearing and cultivating the land for many years. It doctrine thus invoked [was] entirely inappropriate,
was also claimed that the situation was far from for the question now before the Court is not the
peaceful because of misunderstandings between necessity of the expropriation but the power or
landlords and tenants. authority to expropriate under Article XIII, Section 4
-the SC, reversing a lower court ruling in favor of of the Constitution. The validity of the statute
expropriation, returned to the Guido rule that directing the expropriation is certainly a judicial
“Section 4, Article XIII of the Constitution had question.”
reference only to large estates, trusts in perpetuity,
and lands that embrace a whole town or a large *this quotation in NARRA in effect excluded all
portion of a town or city.” consideration of questions of necessity whenever
-it rejected the argument that “as long as any land the “area test” prescribed in Guido had not been
formerly formed part of a landed or large estate, it followed. Thus, Justice JBL Reyes was correct when
may, regardless of its present area, be still subject he said in Baylosis case that Article XIII, Section 4
to expropriation under Section 4, Article XIII.” (1935) had become an end in itself for the Court.
-finally, the Court made explicit its abandonment of
the Reyes decision and its return to the Guido *the provision had become a symbol of what the
ruling. Guido case called the “preferred position” of land.
While “public use” might indeed be equated with
*in a well-reasoned dissent, Justice JBL Reyes, after “public welfare,” the expropriation of smaller areas
criticizing the reasoning of the majority as an of land was, by Guido’s interpretation of the
unwarranted entry into the area of “wisdom” of Constitution, conclusively not for the public welfare.
expropriation policies, accused the Court of Thus, what had originally been intended as a

Page 93 of 104
clarification of the concept of “public use” received
an interpretation which “froze” the concept when
applied to land. It was an interpretation which did
disservice to the flexibility of the concept of “public
use.”
JM Tuason and Co., Inc. v Land Tenure
Administration
-on the eve of the birth of the 1973 Constitution, the
caser attempted to restore flexibility to the 1935
constitutional provision
-it revived the neglected argument of Justice JBL
Reyes found in his dissent in Baylosis and rejected
the “undue stress on property rights” found in
Justice Montemayor’s argument in Guido.
-emphasis was placed on the fact that the
Constitution speaks of “lands” and not “landed
estates”. The “area test” was rejected in favour of
the state’s “quest for social justice and peace.”
-Justice Barredo, in fact, in his concurring opinion
espoused a broader power for Congress: “I take it
that the constitutional provision itself declares the
public objective, purpose or use of the expropriation
contemplated, which is the amelioration of the long
standing socio-agrarian conditions endangering the
very ideology on which our government and way of
list rest, hence, it should follow that as long as a
congressional legislation declares that
condemnation of a particular land is for the specific
purpose stated in the Constitution, it is not for the
judiciary to enquire as o whether or not the taking of
such land is for public use.
*unfortunately, however, the majority opinion of JM
Tuason penned by Justice Fernando cannot be 7. Judicial to judicialReview
considered a definitive rejection of the main thrust
of Guido. In the first place, what was in issue in
Guido was the scope of the expropriatory powers
delegated to the President by statute, whereas, in
JM Tuason, the challenge was addressed to the
validity of a statute specifically made applicable to a
particular piece of land. Secondly, in effect, only four
Justices concurred in Fernando’s opinion; the seven
others either dissented or for procedural reasons,
concurred merely in the result.
*after the 1973 Constitution took effect, what was
the force of the Guido-Baylosis rule? It is
submitted that the Fernando-Barredo opinion set out
in JM Tuason became the controlling doctrine. The
insistence of the Guido-Baylosis line of decisions
on making the size of the land to be expropriated
the controlling factor for legitimating expropriation
for resale could not be justified in the light of new
provisions found in the 1973 Constitution. In relation
to Article II, Section 6 (1973), the power of eminent
domain must be recognized as the most effective
instrument to “equitably diffuse property ownership”
and in relation to Article XIV, Section 12 (1973), the
power of eminent domain could most effectively
serve to “implement an agrarian reform program
aimed at emancipating the tenant from the bondage
of the soil.” And the problem of inequitable
distribution of land in the Philippines under the 1973
Constitution did not consist merely in the existence
of single tracts of land that, to paraphrase Guido,
embraced whole towns or cities and belonged to one
owner. The problem also consisted in extensive land
holdings by single owners, although these land
holdings might not be all in one piece. Hence,
although Guido might have been correct in saying
that this latter type of extensive land holdings was
not the “lands” contemplated by the 1935
Constitution; this type of land holdings came within
the ambit of the 1973 Constitution. By then there
were very few, if indeed there still were at all single
owner land holdings that embraced whole towns and
cities.
*when expropriation for resale to farmers was
discussed in the Constitutional Commission of 1986,
nobody even adverted to the Guido –Baylosis rule.
It was then taken for granted that expropriation for
resale for the purpose of alleviating the condition of
landless farmers is a state duty in social justice.
Exercise of Power of Eminent Domain  subject
review (J.R.)
Aspects included to judicial scrutiny:
1. Adequacy of the compensation
2. Necessity of the taking
3. “Public use” character of the purpose of
the taking
- Propriety of J.R of the valuation of the
property made by property assessors  has
never been seriously questioned
- Even when there is a statutory determination
of just compensation due  courts may still
review the adequacy of even such
determination
- Procedure in expropriation cases (Code of
Civil Procedure superseded by the Rules of
Court)  provided for the judicial appointment
of 3 commissioners to view the premises and
asses the damages to be paid for the
condemnation
- Commissioners  made report to court
- Sec. 245 of Code “none of their
proceedings shall be effectual to bind the
property or the parties until the court shall
Page 94 of 104
have accepted their report and rendered
judgment in accordance with their
recommendations”
Thus...

• City of Manila v. Estrada (1913)
o There is ample authority in the statue to
authorize the courts to change or modify the
report of the commissioners by increasing or
decreasing the amt. of the award, if the facts
of the case will justify such change or
modifications”
 Statement is merely an affirmation of the
statutory authority to review the
valuation made by assessors  the legislative authority but by another
(constitutionally significant) as an
affirmation that judicial review of
administrative valuation is not
incompatible with the fact that the power
of eminent domain is lodged with the
legislative and executive departments.
o Established Doctrine  Courts can review the
report of commissioners
o Commissioners’ powers  ‘discretionary’
 Task  not only mere mechanical work of
taking down the evidence presented
before them trial
 Their valuation can not be reversed by
courts unless “palpably excessive or
inadequate”
 Trial by Commissioners  substantive
right which a judge may not dispense
with
• City of Manila v. Chinese Community of
Manila (1919)
o Issue: Whether the Court can review a
legislative or administrative judgment that a
particular “use” to which the property will be
put is a public use or a public necessity.
o SC: “It cannot be denied, if the legislature
under proper authority should grant the
expropriation of a certain or particular parcel
of land for some specified public purpose,
that the courts would be without jurisdiction
to inquire into the purpose of that
legislation.”
• Traction Co. v. Mining co. (1904)
o Original name of the American case:
Madisonville Traction Company v. St.
Bernard Mining Company
o Contradicted the previous statement of the
SC from the previous case: "It is erroneous to
suppose that the legislature is beyond the
control of the courts in exercising the power
of eminent domain, either as to the nature of
the use or the necessity to the use of any
particular property. For if the use be not
public, or no necessity for the taking exists,
the legislature cannot authorize the taking of
private property against the will of the
owner, notwithstanding compensation may
be required."
Controlling doctrine:
- When the expropriation is done not directly by
government agency or by a municipal
corporation and in virtue of an authorizing
statute which neither specifies the purpose of
the taking nor the property to be taken, there
should be no doubt but that the courts must
come in to perform its duty of enforcing the
provision of the constitution.
- Court can look into the necessity of the taking
as it did in the Manila Chinese Community
case and Republic v. La Orden de PP.
Benedictinos de Filipinos
o Both cases involved expropriation that
was clearly for the public purpose
(construction of public road)
• Manila Chinese Community case (1919)
o Attempt by the city of Manila to expropriate
in virtue of a general authorization in its
charter
o SC disallowed the expropriation
 “In the present case, even granting that
a necessity exists for the opening of the
street in question, the record contains no
proof of the necessity of opening the
same through the cemetery. The record
shows that adjoining and adjacent lands
have been offered to the city free of
charge, which will answer every purpose
of the plaintiff.”
• Republic v. La Orden de PP. Benedictinos
de Filipinas (1961)
o Attempt by the Philippine Government by
authority of the President pursuant to the
general authority given by Sec. 64(b) of the
Revised Administrative Code
Page 95 of 104
 o Court:
 “It is the rule in this jurisdiction that
private property may be expropriated for
public use and upon payment of just
compensation; that condemnation of
private property is justified only if it is for
the public good and there is a genuine
necessity therefor of a public character.
Consequently, the courts have the power
to inquire into the legality of the exercise
of the right of eminent domain and to
determine whether or not there is a
genuine necessity therefore”
o Principle:
 The necessity of taking was a question
of fact which must be established  by
proper evidence
 More need for J.R.  were the legislative
act was authored not by a legislative
body but by a President exercising
authority
• Arce v. Genato (1979)
o Principle above was put in doubt
• De Knecht v. Bautista (1990)
o Principle was once again forcefully
recognized
 When the Court ruled that there was no
real necessity for Epifanio de los Santos
(EDSA) to be extended to Roxas Blvd.
through Rein and del Pan Streets instead
of through Cuneta Avenue
• Municipality of Meycauayan v. Intermediate
Court of Appeals (1988)
• “As early as City of Manila v. Chinese
Community of Manila (40 Phil. 349) this Court
held that the foundation of the right to exercise United States v. Welch (1946)
the power of eminent domain is genuine
necessity and that necessity must be of a public
character. Condemnation of private property is
justified only if it is for the public good and there
is a genuine necessity of a public character.
Consequently, the courts have the power to
inquire into the legality of the exercise of the
right of eminent domain and to determine
whether there is a genuine necessity therefore”
Courts  can look into the public character of the
purpose of the taking by the government agencies
other than the legislature
Cases involving expropriation of land for resale
were for the most part a discussion whether the
taking, exercised by the agencies like the Rural
Progress Administration or Land Tenure
Administration, satisfied the requirement of public
use.
When the legislature specified the purpose of the
taking and singles out the property to be taken, can
the Courts review the judgment made by the
legislature??
- Chinese community case contradictory
answers
- American jurisprudence ambivalent
judicial attitude to the question
o Common Accepted American Rule
 the issue of public use is a
judicial question
•
•
If it had been disposed to, the Court in NARRA might
•
have side-stepped the Guido rule by distinguishing the
statues involved in the two cases
-Statute in Guido DID NOT PICK OUT the
specific property to be expropriated
- Statute in NARRA  PICKED OUT ...
NARRA court did not even avert to the distinction
J. Reyes, JBL (who wrote the opinion in NARRA)  did
not yet deem it opportune to revive the arguments raised
in his dissent in Baylosis (arguments which 10 years later
would not only be revived but also be elaborated on in
the main opinion in J.M. Tuason & Co. v. Land Tenure
Administration)
o Clear implication of the finality of legislative
judgment
 J. Black: “We think that it is the function
of Congress to decide what type of taking
is for a public use, and that the agency
authorized to do the taking may do so to
the full extent of its statutory authority.”
Philippine Jurisprudence authority of the courts
to review the legislative judgment has never been
seriously questioned
Page 96 of 104
• NARRA v. Francisco (1960)
o FACTS: Involves RA no. 1266 (specifically Scope of eminent domain plenary and (like police
authorized the National Resettlement and power) can “reach every form of property which the
Rehabilitation Administration to State might need for public use”
expropriate Hacienda del Rosario situated in
Valdefuente, Cabanatuan City, for
subdivision and resale to occupants
o CHALLENGE: The size of the land did not Impropriety of res judicata “does apply to specific
satisfy the Guido Rule issue decided in a previous case”
o NARRA appealed to the obiter dictum in the
Chinese Community e.g. Final judgment dismissing an
 “Where the legislature has directly expropriation suit on the ground that there was no
determined the necessity of prior offer precluded another suit raising the same
appropriating private property for a issue; it cannot, however, bar the State or its agent
particular public improvement at a
from thereafter complying with this requirement, as
specified location, the utility, necessity
and expediency of the improvement and prescribed by law, and subsequently exercising its
the suitable of the location are questions power of eminent domain over the same property.
for the legislature to determine and the
courts have no power to interfere and
substitute their own discretion.”
o COURT  did not accept the argument
 But did not categorically rejected the
principle stated
 Principle involved  “entirely 8. Regulation versus taking.
inappropriate, for the question now
before the Court is not the necessity of Title to property transferred to the expropriating
the expropriation but the power or authority  clear case of compensable taking
authority to expropriate under Article XIII,
Sec. 4, of the Constitution. The validity of But it will be seen that...
the statute directing the expropriation is
certainly a judicial question.” Settled rule:
 IMPLICATION  if the issue had been the
necessity of the expropriation, the Court - Neither the acquisition of the title nor total
might have upheld the argument destruction of value is essential to taking.
• Court  could not even begin to - It is in cases where title remains with the
consider the question of necessity private owner that inquiry must be made
because it felt constrained by the whether the impairment of property right is
mechanistic land-size Guido test for merely regulation or already amounts to
“public use” which, as the Court was compensable taking.
careful to not, “while not unanimous,
still stood unreversed”.

8. Does “res judicata” apply?

Police Power Power of Eminent
- When once the right to expropriate has been Domain
denied the states in specific case, it does not
mean that the state may not come back to the OBJECT: General Welfare
same property.
- The very nature of eminent domain, as an Achieves object by Achieves object by
inherent power of the State, dictates that the regulation taking
right to exercise the power be absolute and
unfettered by prior judgment or res judicata Property impaired by Property is taken 
regulation  just compensation
compensation not required
required Page 97 of 104
 Property Interest
• US v. Toribio (1915)
1. Appropria 2. Merely 3. Destroyed
o A statute regulating the slaughter of carabao
ted and restricted:
for the purpose of conserving a adequate applied to
supply of draft animals was upheld as a some (because
legitimate exercise of police power and not a public (because continued
form of taking under eminent domain as to purpose continued existence of
require compensation
o American Doctrine on zoning ordinances was unrestricted the property
likewise adopted use would be would be
injurious to injurious to
public public
• Seng Kee & Co. v. Earnshaw (1931) welfare) interest)
o Followed Murphy v. California (1910) that the
ordinance dividing a city into industrial and
residential areas was a legitimate regulation
and not a taking of property without just
compensation.
Compensable NO NO
taking Compensable Compensable
• People v. de Guzman (1987) taking taking
o When a zoning ordinance prohibiting the
operation of a lumber yard within certain
areas was challenged as confiscatory
o Court upheld it as a valid exercise of police
power

• People v. Fajardo (1958)

Commonality (with the cases above):
- While the regulations in question affected the
right of ownership, none of the property
interests in the bundle of rights which
constitute ownership was appropriated for use
by or for the benefit of the public
- Use of the property by the owner was limited,
but no aspect of the property was used by or
for the public.
Deprivation of use can in fact be a total and it will not
constitute compensable taking if nobody else acquires
use of the property or any property interest therein
e.g. Miller v. Schoene (1928)
If in order to check the spread of
Kadang-Kadang a law were to be passed
authorizing the destruction of coconut trees
infected with Kadang-Kadang, coconut tree
owners whose trees are ordered cut down
could not complain of unlawful deprivation of
property without just compensation. There
would be destruction but no compensable
taking
o Illustrates compensable taking that does not
involve transfer of title
o FACTS: The municipal mayor on the strength
of an authorization given by a municipal
ordinance, had refused Fajardo permission to
put up a house on his land on the ground
that the proposed structure would “destroy
the view or beauty of the public plaza”
o It is true that the ordinance upon which
denial had been based was also declared
fatally defective for being an invalid
delegation of legislative authority
o COURT considering the ordinance, arguendo,
as a valid delegation of authority to issue
zoning regulations said:
“Even thus interpreted, the ordinance is
unreasonable and oppressive, in that it operates to
permanently deprive appellants of the right to use
their own property; hence, it oversteps the bounds
of police power, and amounts to a taking of
appellants property without just compensation. We
do not overlook that the modern tendency is to
regard the beautification of neighborhoods as
conducive to the comfort and happiness of
residents. But while property may be regulated in
the interest of the general welfare, and in its
Page 98 of 104

Note: This case involves a statute authorizing the

destruction of red cedar trees infested with rust
pursuit, the State may prohibit structures offensive
to the sight (Churchill and Tait vs. Rafferty, 32 Phil.
580), the State may not, under the guise of police
power, permanently divest owners of the beneficial
use of their property and practically confiscate them
solely to preserve or assure the aesthetic
appearance of the community. As the case now
stands, every structure that may be erected on
appellants' land, regardless of its own beauty,
stands condemned under the ordinance in question,
because it would interfere with the view of the
public plaza from the highway. The appellants
would, in effect, be constrained to let their land
remain idle and unused for the obvious purpose for
which it is best suited, being urban in character. To
legally achieve that result, the municipality must
give appellants just compensation and an
opportunity to be heard.”
o Does this mean that is the permanence and
the totality of the deprivation which
constitute compensable taking?
 Total destruction w/o utilization is not
appropriation but merely regulation of
police power
 One must therefore:
• Look beyond the deprivation
• Ask for the Ultimate purpose
o E.g. (in the given case)  the
purpose was to preserve “the
view or beauty of the public
plaza”
o In effect, what the municipality
wanted was to impose an
easement on the property of
Fajardo, which was a form of
utilization of Fajardo’s property
for public benefit
 Case was distinguishable from
the destruction of billboards in
Churchill v. Rafferty, which
had for its purpose the •
general object of preventing
structures offensive to sight
- The establishment of easement is a form of
compensable taking is illustrated in a number of
American cases, all of which rest upon the owner’s
right not only over the surface of the land but also to
a reasonable height of the airspace above it.
e.g.
- Portsmouth Harbor Land v. US (1922)
o Repeated firing or guns over a piece
of land was considered a
compensable taking
- US v. Causby (1946)
o Flight of planes from a nearby military
airport over plaintiff’s property below
the navigable airspace resulting in the
ruin of plaintiff’s chicken farm was
considered compensable taking
- Griggs v. Allegheny County (1926)
o Low landing and take-off flights which
made the nearby residential are
unlivable
• National power Corporation v. Spouses
Misericordia Gutierrez (1991)
o FACTS: Basis on easement that the
owners of the land was awarded full
compensation against the NPC’s
argument that the owners were not
totally deprived of the sue of the land
and could not still plant the same
crops as long as they did not come
into contact with the wires.
o COURT: “The right-of-way easement,
it nevertheless perpetually deprives
defendants of their proprietary rights
as manifested by the imposition by
the plaintiff upon defendants that
below said transmission lines no plant
higher than three (3) meters is
allowed. Furthermore, because of the
high-tension current conveyed
through said transmission lines,
danger to life and limbs that may be
caused beneath said wires cannot
altogether be discounted, and to cap
it all plaintiff only pays the fee to
defendants once, while the latter shall
continually pay the taxes due on said
affected portion of their property."
Republic v. Philippine Long Distance Co. –
PLDT (1969)
o Phil. Example of compensable taking w/c did
not involve transfer of title
o FACTS: the Bureau of Telecommunications,
an instrumentality of the government
performing governmental functions, had
contracted with the PLDT for the use of the
latter’s lines in order to enable government
offices serviced by the Bureau of
Telecommunications to call private parties.
The Bureau of Telecommunications wanted
to expand its use of the PLDT lines in order to
expand the services to government offices.
Page 99 of 104

PLDT, however, and the Bureau of
Telecommunications could not reach
agreement on the terms of the contract for
the use of PLDT facilities
o COURT said:
“While the Republic may not compel the PLDT to
celebrate a contract with it, the Republic may, in the
exercise of the sovereign power of eminent domain,
require the telephone company to permit
interconnection of the government telephone
system and that of the PLDT, as the needs of the
government service may require, subject to the
payment of just compensation to be determined by
the court. Nominally, of course, the power of
eminent domain results in the taking or
appropriation of title to, and possession of, the
expropriated property; but no cogent reason
appears why the said power may not be availed of
to impose only a burden upon the owner of
condemned property, without loss of title and
possession. It is unquestionable that real property
may, through expropriation, be subjected to an
easement of right of way. The use of the PLDT's
lines and services to allow inter-service connection
between both telephone systems is not much
different. In either case private property is subjected
to a burden for public use and benefit. If, under
section 6, Article XIII, of the Constitution, the State
may, in the interest of national welfare, transfer
utilities to public ownership upon payment of just
compensation, there is no reason why the State
may not require a public utility to render services in
the general interest, provided just compensation is
paid therefor. Ultimately, the beneficiary of the
interconnecting service would be the users of both
telephone systems, so that the condemnation would
be for public use.”
• Cabrera v. CA (1991)
o FACTS: A lot owner was prejudiced by the
closure of a road in that his access to the
national road had been limited,
compensation was not allowed.
o “Petitioner is not entitled to damages
because the injury he has incurred, such as it
is, is the price he and others like him must
pay for the welfare of the entire community.
This is not a case where his property has
been expropriated and he is entitled to just
compensation. The construction of the new
road was undertaken under the general
In the context of determining as of what date the value
of the property must be fixed, recent decisions have
helped clarify the constitutional meaning of taking.
Compensation is fixed 9as of the time the property is
taken)  it becomes important when the property is
deemed to have been taken, esp. in situations where
there is a transformation in the nature of the
government’s holding of the property.
welfare clause.” And thus was an exercise of
police power
• Bel- Air Village Association v. Intermediate
Court of Appeals (1989)
o Subdivision was ordered to open a gate to a
road within the subdivision; the order to open
the road was ruled to be an exercise of police
power and not of eminent domain.
o Found that the deed of donation covering the
road stipulated that the road would also be
for the general public.
o Order to open the gate was deemed an
abatement of public nuisance
- 2 other cases, which at 1st-glance look like zoning
cases which should not require compensation, were
in fact found to be confiscatory
• Hipolito v. City of Manila (1950)
o Court  to deny plaintiff a building permit on
the ground that eh land on w/c he planned to
build would be used for widening the street
and before such land is expropriated is to
make plaintiff’s property w/o due process of
law
• Clemente v. Municipal Board of Iloilo (1955)
o An ordinance w/c looking to eventual
expropriation proceedings, prohibited
property owners along a portion of a street
from erecting new buildings or repair old
ones, under penalty of fine, was also
declared to be confiscatory.
- Both cases  intent to appropriate the
property for public use was clear
- Anticipatory of any expropriation proceedings
 there was an attempt to deprive the
owners of their dominical right under the
guise of regulation.
- A mere declaration of an intention to
expropriate does not yet serve to curtail the
Page 100 of 104
 dominical rights of the owners (Familiara v. • economic impact of the regulation on the
J.M. Tuason & Co.) property
• the extent to w/c the regulation might interfere
w/ investment expectations

• Penn Central Transportation Co. v. New

• Republic v. Vda. de Castellvi (1974)
o Where the government had initially held the
land as lessee
o COURT: the government became an
expropriator only when it took steps that
satisfied the elements of taking;
 That the entrance & occupation by the
condemnor must be for a permanent, or •
indefinite period
 That in devoting the property for public
use the owner was ousted from the
property and deprived of its beneficial
use
o For as long as the government was still
paying rent there was no “taking” in
expropriatory sense
o For as long as the government was still
staying in the property only “by permission”
of the owner, there was as yet no taking
o If the expropriating authority chooses not to
take possession of the property until after
judgment is rendered, the moment of taking,
for purposes of fixing compensation, is not
the date of filing the condemnation suit but
the date of the judgment (Municipality of
Daet v. CA, 1979- Suit was filed 1962 and
the lower court judgment was rendered in
1969 and affirmed by the appellate court in
1972. it was only in 1972 that the state took
steps to make the deposit and take
possession of the property)
Issue of “taking”  becomes involved when a piece
of private property is classified by the state as a
“historical landmark”
York (1978)
o
o Ruled that the landmark law w/c did not
interfere w/ the terminal’s present uses or
prevent Penn Central from realizing a
“reasonable turn” on its investment did not
constitute taking but was merely an exercise
of police power
o Such cases, standard of legitimacy is not
compensation but the reasonableness of the
regulation
Other cases (involving meaning of taking)
o Dipidio Earth Savers, et al. v. Secretary
(2006)
 Where the entry into the private property
is not just a simple right of way, w/c is
ordinarily allowed under the provisions of
the Civil Code, but the entry is for the
purpose of conducting mining activities
such as exploration, extraction and
processing of minerals, there already is
compensable taking.
 All these will definitely oust the owners or
occupants of the affected areas the
beneficial ownership of their lands
o Republic v. Andaya (2007)
 Right of way enforced by the state results
in making adjoining property unusable,
just compensation is due
o NPC v. San Pedro
 Where the nature and effect of the
installation of the 230 KV Mexico-Limay
transmission lines results in the
imposition of limitation against the use of
the land for an indefinite period, there is
compensable taking
10. EXPROPRIATION OF MUNICIPAL PROPERTY

When does classification of property into a historical

landmark resulting in a limitation of its economic
usefulness amount to compensable taking? In a set of cases involving the National Waterworks
and Sewerage Authority (NAWASA), the Court
Such an action is not far different from zoning unmasked an attempt to expropriate under the
regulations although its economic impact on a piece guise of exercising police power. A law was passed
of property might be more that that of mere zoning authorizing the transfer of municipal waterworks
regulation.Factors for determination (whether action systems to the NAWASA. NAWASA understood the
amounts to taking or mere regulation):
Page 101 of 104
law to mean that it could take the waterworks While the principle itself is simple, its application has
system of Baguio City under the claim of exercising been complicated by a certain degree of confusion
police power. in determining what property is held by a
municipality in its public and governmental capacity
and what property is held in its private or
proprietary capacity. One norm for classification of
CITY OF BAGUIO V. NAWASA
municipal property is found in the Civil Code which
After finding that the waterworks system was not says:
national property merely held in trust by the city for
the benefit of the public but was private property
held by the city in its proprietary capacity, the Court Art. 243. The property of provinces, cities, and
said that the act did not authorize the confiscation municipalities id divided into property for public use
nor appropriation of the property belonging to cities and patrimonial property.
but merely directed that the waterworks belonging
to municipal corporations be transferred to the Art. 424. Property for public use, in the provinces,
NAWASA with a view to more efficient management. cities, and municipalities, consist of the provincial
But the Act itself directed that the municipal roads, city streets, municipal streets, the squares,
corporation be paid with an equal value of the fountains, public waters, promenades, and public
assets of the NAWASA. works for public service paid for by said provinces,
cities, or municipalities.

All other property possessed by any of them is

The same ruling requiring the NAWASA to pay for patrimonial and shall be governed by this Code,
the value of the waterworks system of municipal without prejudice to the provisions of special laws.
corporations was followed in subsequent cases.

CEBU CITY V. NAWASA

The series of NAWASA cases underscores the need
for clarifying the distinction between patrimonial Interpreting this provision in the NAWASA cases,
property of a municipal corporation and property with reference to municipal waterworks, the
which it holds for public use. Supreme Court said: “Thus the term “public works
for public service” must be interpreted, following the
principle of ejusdem generis, in the concept of the
preceding words, “provincial roads, city streets,
PROVINCE OF ZAMBOANGA DEL NORTE V. CITY municipal streets, squares, fountains, public waters
OF ZAMBOANGA and promenades” which are used freely by all,
without distinction. Hence, if the public works is not
The principle itself is simple: If the property is owned
for such free public service, it is not within the
by the municipality (meaning municipal corporation)
purview of the first paragraph, but the second
in its public and governmental capacity, the
paragraph of Article 424, and, consequently,
property is public and Congress has absolute control
patrimonial in character. And as already held by this
over it. But if the property is owned in its private or
Court, a municipal water system designed to supply
proprietary capacity then it is patrimonial and
water to the inhabitants for profit is a corporate
Congress has no absolute control. The municipality
function of the municipality.”
cannot be deprived of it without due process and
payment of just compensation.

PROVINCE OF ZAMBOANGA DEL NORTE V. CITY

OF ZAMBOANGA

Page 102 of 104

This Zamboanga del Norte case pointed to the subdivision and resale to the occupants, the City of
existence of another line of cases which classified Manila objected to the statute as a deprivation of
property according to the use to which it is devoted. municipal property without proper compensation.
According to this line of cases, if the property is
devoted to governmental purposes like local
administration, public education, etc., the property
Upholding the statute, the SC, after a narration of
is not patrimonial even if it is not indiscriminately
the history of communal lands under Spanish Law,
made open to the public.
concluded:

The Court concluded: “We are more inclined to

It may, therefore, be laid down as a general rule that
uphold this latter view. The controversy here is more
regardless of the source or classification of land in
along the domains of the Law of Municipality
the po9ssession of a municipality, excepting those
Corporations – State v. Province- than along that of
acquired with its own funds in its private or
Civil Law. Moreover, this Court is not inclined to hold
corporate capacity, such property is held in trust for
that municipal property held and devoted to public
the State for the benefit of its inhabitants, whether it
service is in the same category as ordinary private
be for governmental or proprietary purposes. It
property. The consequences are dire. As ordinary
holds such lands subject to the paramount power of
private properties, they can be levied upon and
the legislature to dispose of the same, for after all it
attached. They can even be acquired through
owes its creation to it as an agent for the
adverse possession- all these to the detriment of the
performance of a part of its public work, the
local community. Lastly, the classification of
municipality being but a subdivision or
properties other than those for public use in the
instrumentality thereof for purposes of local
municipalities as patrimonial under Art. 424 of the
administration. Accordingly, the legal situation is the
Civil Code is “… without prejudice to the provisions
same as if the State itself holds the property and
of special laws.” For purposes of this article, the
puts it to a different use.
principles obtaining under the Law of Municipal
Corporations can be considered as “special laws.”
Hence, the classification of municipal property
devoted for distinctly governmental purposes as 11. EXPROPRIATION BY MUNICIPAL
public should prevail over the Civil Code GOVERNMENT
classification in this particular case.”

HEIRS OF SUGUITAN V. CITY OF

Another type of municipal property is the legua MANDALUYONG
communal or communal lands of a town. These
came into existence upon the establishment of a The power of eminent domain has been given to
town or pueblo under Spain. The Spanish Law local governments by the Local Government Code.
provided that the usufruct of a portion of the public The essential requisites are that it must be
domain adjoining municipal territory might be exercised for public use and with just compensation
granted by the government for communal purposes. and after a valid offer. In addition, it must be done
The ultimate title, however, remained with the on the strength of a legislative act of the local
sovereign. government, that is, an ordinance. It cannot be done
merely on the strength of resolution. A resolution is
not a legislative act. It is merely a declaration of the
sentiment or opinion of a lawmaking body on a
SALAS V. JARENCIO specific matter.

This involved such type of land. When R.A. No. 4118

converted the land, which was situated in Manila,
into alienable land of the state and provided for its
Page 103 of 104
Recent decisions have affirmed the limited
expropriation powers of local government. Thus has
been held that expropriation by local governments
under Section 19 of the Local Government Code (R.
A. 7160) must follow the following rules:
1. “An ordinance is enacted by the local legislative
council authorizing the local chief executive, in
behalf of the LGU.”
This is not to say, however, that the power of
eminent domain can be contracted away. Like police
power, the power of eminent domain is inalienable.
The Noble case simply says that the power of
eminent domain cannot be used to achieve an
object when there is a subsisting contract for the
precise same object. But a contract right is property
and is itself subject to expropriation.

2. “The power of eminent domain is exercised for

public use, purpose or welfare, or for the benefit of PENNSYLVANIA HOSPITAL V. PHILADELPHIA
the poor and the landless.”
In return for certain payments from the hospital and
3. “There is payment of just compensation; and for land supplied by the hospital for a public street,
the state legislature passed a statute forbidding the
4. “A valid and definite offer has been previously opening of any street through the hospital grounds.
made to the owner of the property sought to be Subsequently, by authority of the state, the city
expropriated, but said offer was not accepted.” sought to open a street through the hospital
grounds.

Thus, a local government may not expropriate on

the strength merely of a sangunian resolution alone. The US SC allowed the condemnation saying that
since “there can be no right to restrain by contact
the power of eminent domain, it must also of
12. EMINENT DOMAIN AND CONTRACTS necessity follow that any contract by which it was
sought to accomplish that result would be
In one of the earlier cases decided during the inefficacious for want of power.
Commonwealth, the SC had a chance to look into
the relation of the power of eminent domain to
contractual obligation. The City of Manila, in an
attempt to back out of a contract of sale, started
proceedings for the expropriation of the property
involved.

NOBLE V. CITY OF MANILA

In this case, the Court stopped the city short:

“Expropriation lies only when it is made necessary
by the opposition of the owner to the sale of by the
lack of any agreement as to price. There being in
the present case a valid and subsisting contract,
between the owners of the building and the city,
there is no reason for the expropriation.”

Page 104 of 104