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3.

SEARCHES AND SEIZURES


The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and
no search warrant or warrant of arrest shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be searched and the persons or
things to be seized. (Sec. 2, Art. 3)

Section 2, Article III deals with tangibles; embodies the castle doctrine (a man's house is
his castle; a citizen enjoys the right against intrusion and is master of all the surveys within the
domain and privacy of his own home.)
Section 3 (1), Article III deals with intangibles
Section 3 (2), Artivle III Exclusionary Rule (which embodies the Doctrine of the Fruit of the
Poisonous Tree)

A. Scope
-Available to all persons, including aliens, whether accused of a crime or not.
-Artificial persons are also entitled to the guarantee, although they may be required to open their
books of accounts for examination by the State in the exercise of police and taxing powers.
-Right is personal.
**Objection must be raised before the accused enters his plea.

B. Procedural Rules
1. warrantless arrest is not a jurisdictional defect and any objection thereto is waived when the
person arrested submits to arraignment without any objection;
2. where a criminal case is pending, the Court wherein it is filed, or the assigned branch, has
primary jurisdiction to issue the search warrant;
3. where no criminal case has been filed, the executive judges or their lawful substitutes, in the
areas and for the offense contemplated shall have primary jurisdiction;
4. moment the information is filed with the RTC, it is that court which must issue the warrant of
arrest;
5. The judge may order the quashal of a warrant he issued even after the same had already been
implemented, particularly when such quashal is based on the finding that there is no offense
committed.
-Items seized shall be inadmissible in evidence.

Only a judge may issue a warrant


Exception: order of arrest may be issued by administrative authorities but only for the
purpose of carrying out a final finding of aviolation of law, e.g. an order of deportation or
an order of contempt but not for the sole purpose of investigation or prosecution.

C. Requisites for a Valid Warrant


1. Probable cause.
2. Determination of probable cause personally by the judge.
3. After examination under oath or affirmation of the complainant and the witnesses he may
produce.
4. Particularity of description.

The judge shall:


1. Personally evaluate the report and the supporting documents submitted by the fiscal
regarding the existence of probable cause and, on the basis thereof, issue a warrant of
arrest; or
2. If on the basis thereof, he finds no probable cause, he may disregard the prosecutors
report band require the submission of supporting affidavits of witnesses.

Principles:
1. The determination of probable cause is a function of the judge.
2. The preliminary inquiry made by the prosecutor does not bind the judge, as it is the
report, affidavits, the transcript of stenographic notes and all other supporting documents
behind the prosecutors certification which are material in assisting the judge in his
determination of probable cause.
3. Judges and prosecutors should distinguish the preliminary inquiry which determines
probable cause for the issuance of the warrant of arrest from the preliminary investigation
proper which ascertains whether the offender should be held for trial or be released.
4. Only a judge may issue a warrant of arrest.

Judge himself conducts the preliminary investigation, for him to issue a warrant of arrest,
the investigating judge must:
1. Have examined, under oath, the complainant and the witnesses;
2. Be satisfied that there is probable cause; and
3. That there is a need to place the respondent under immediate custody in order not to
frustrate the ends of justice

Particularity of Description:
1. Readily identify the properties to be seized and thus prevent them from seizing
the wrong items.
2. Leave peace officers with no discretion regarding the articles to be seized and thus
prevent unreasonable searches and seizures.
Warrant of Arrest - particularly describe the person to be seized if it contains the name/s of the
person/s to be seized.
John Doe warrant - descriptio persona

D. Properties Subject of Seizure:


1. Subject of the offense
2. Stolen or embezzled property and other proceeds or fruits of the offense; and
3. Property used or intended to be used as means for the commission of an offense.

E. Conduct of the Search


1. Lawful occupant;
2. Any member of his family; and
3. 2 witnesses, of sufficient age and discretion, residing in the same locality.

F. 1.1 Warrantless arrests by a peace officer or a private person:


1. When the person to be arrested has committed, is actually committing or is attempting to commit
an offense in his presence (IN FLAGRANTE DELCITO);
2. When the offense had just been committed and there is probable cause to believe, based on his
personal knowledge of facts and of other circumstances, that the person to be arrested has
committed the offense (HOT PURSUIT);
3. 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 (ESCAPEE); and
4. When the right is voluntarily waived.

Buy-bust operation is a valid in flagrante arrest.

In flagrante arrests:
1. The person to be arrested must execute an overt act indicating that he had just committed, is
actually committing, or is attempting to commit a crime; and
2. Such overt act is done in the presence or within the view of the arresting officer.

In (2):
1. there must be immediacy between the time the offense is committed and the time of the arrest.
If there was an appreciable lapse of time between the arrest and the commission of the crime, a
warrant of arrest must be secured and
2. the person making the arrest has personal knowledge of certain facts indicating that the person
to be taken into custody has committed the crime.

Question the validity of the arrest before entering plea; failure to do so would constitute a waiver
of his right against unlawful restraint of his liberty. However, waiver is limited to the illegal arrest.
It does not extend to the search made as an incident thereto, or to the subsequent seizure if evidence
allegedly found during the search.

F 1.2 Warrantless Searches


1. When the right is voluntarily waived;
2. When there is a valid reason to stopand- frisk;
3. Where the search (and seizure) is an incident to a lawful arrest;
4. Search of vessels and aircrafts;
5. Search of moving vehicles;
6. Inspection of buildings and other premises for the enforcement of fire, sanitary and
building regulations;
7. Where prohibited articles are in plain view;
8. Search and seizure under exigent and emergency circumstances; and
9. Conduct of areal target zoning or saturation drive/s as valid exercise of military powers
of the President (Guanzon vs. de Villa)
Valid Waiver of Constitutional Right
1. Right exists
2. That the person involved had knowledge, either actual or constructive of the existence
of such right; and
3. That the person had an actual intention to relinquish the right.

Searches of Passengers at Airports


- When the accused checked in his luggage as a passenger of a plane, he agreed to the
inspection of his luggage in accordance with customs laws and regulations, and thus waived any
objection to a warrantless search.
- Search made pursuant to routine airport security is allowed under RA 6235, which
provides that every airline ticket shall contain a condition that hand-carried luggage, etc., shall be
subject to search, and this condition shall form part of the contract between the passenger and the
air carrier.

Stop and Frisk


- Vernacular designation of the right of a police officer to stop a citizen on the street,
interrogate him and pat him for weapons whenever he observes unusual conduct which leads him
to conclude that criminal activity may be afoot.
Requisites:
1. police officer should properly introduce himself and make initial inquiries
2. approach and restrain a person who manifests unusual and suspicious conduct in order
to check the latters outer clothing for possible concealed weapon
3. must have a genuine reason, in accordance with experience and the surrounding
conditions, to warrant the belief that the person to be held has weapons or contraband
concealed about him
4. search and seizure should precede the arrest.
Exception:
-People vs. Sucro warrantless search and seizure can be made without necessarily being
preceded by an arrest provided that the said search is effected on the basis of probable cause.
- People vs. Chua Ho San: contemporaneous search of a person arrested may be effected
for dangerous weapons or proofs or implements used in the commission of the crime and which
search may extend to the area within his immediate control where he might gain possession of a
weapon or evidence he can destroy, a valid arrest must preceded a search.

Where the search (and seizure) is an incident to a lawful arrest;


- Search must be contemporaneous to arrest and made within a permissible area of search.
Requisites:
1. arresting officer must have probable cause in effecting the arrest; and
2. probable cause must be based on reasonable ground of suspicion or belief that a crime
has been committed or is about to be committed.

Permissible area of search


- may extend beyond the person of the one arrested to include the premises or surroundings
under his immediate control.
Seizure of allegedly pornographic material
1. criminal charge must be brought against the person/s for purveying the pornographic
material/s;
2. application for a search and seizure warrant obtained from a judge (who shall determine
the existence of probable cause);
3. material confiscated brought to the court in the prosecution of the accused for the crime
charged;
4. court will determine whether the confiscated items are really pornographic; and
5. judgment of acquittal or conviction rendered by the court accordingly

Fishing vessel found to be violating fishery laws may be seized without a warrant:
1. usually equipped with powerful motors that enable them to elude pursuit and
2. seizure would be incident to a lawful arrest.

Search of moving vehicles


- justified on the ground that it is not practicable to secure a warrant because the vehicle
can be moved quickly out of the locality or jurisdiction in which the warrant may be sought.
- Prevent violations of smuggling or immigration laws, provided that such searches are
made at borders or constructive borders (e.g. checkpoints near the boundary lines of the state).

Stop and search without a warrant at a military or police checkpoints.


- Not illegal per se so long as it is required by the exigencies of public order and conducted
in a way least intrusive to motorists. (Valmonte vs. de Villa)

Checkpoint Search
1. Mere routine inspection: the search is normally permissible when it is limited to a mere
visual search, where the occupants are not subjected to a physical or body search.
2. Extensive search: constitutionally permissible if the officers conducting the search had
reasonable or probable cause to believe, before the search, that either the motorist is a law
offender or they will find the instrumentality or evidence pertaining to a crime in the
vehicle to be searched.
Inspection of buildings and other premises for the enforcement of fire, sanitary and building
regulations
- Exercise of police power of the State
- Must be conducted during reasonable hours

Prohibited articles are in plain view


- Objects in plain view of the officer who has the right to be in the position to have that
view.
- Police officer is not searching but inadvertently comes upon an incriminating object.
Requisites:
1. Prior valid intrusion based on a valid warrantless arrest in which the police are legally
present in the pursuit of their official duties;
2. Evidence was inadvertently discovered by the police who have the right to be where
they are;
3. Evidence must be immediately apparent; and
4. Plain view justified the seizure of the evidence without any further search.

Plain View
- Object is plainly exposed to sight.
- Where the object seized is inside a closed package, the object is not in plain view and,
therefore, cannot be seized without a warrant.
- Package proclaims its contents - transparency, distinctive configuration or contents are
obvious to an observer.
- People vs. Salanguit: once the valid portion of the search warrant has been executed, the
plain view doctrine can no longer provide any basis for admitting the other items subsequently
found (marijuana was also wrapped in newspaper which was not transparent.warrant for
shabu and drug paraphernalia, found the shabu first)
- Doctrine is not an exception to thewarrant. It serves to supplement the prior justification.
It is a recognition that of the fact that when executing police officers come across immediately
incriminating evidence not covered by the warrant, they should not be required to close their eyes
to it, regardless of whether it is evidence of the crime they are investigating or evidence of some
other crime. It would be needless to require the police to obtain another warrant.

Immediately apparent test


- Does not require an unduly high degree of certainty.
- Requires merely that the seizure be presumptively reasonable assuming that there is probable
cause to associate the property with criminal activity.
- Nexus exists between the viewed object and the criminal activity.

G. Exclusionary Rule
Evidence obtained in violation of Section 2, Article 3 shall be inadmissible for any purpose
in any proceeding because it is the fruit of the poisoned tree.
- Property illegally seized may be used in evidence in the case filed against the officer responsible
for the illegal seizure.

***

available to natural and artificial persons, but the latter's books of accounts may be required
to open for examination by the State in the exercise of police power or power of taxation
The right is personal (Stonehill vs Diokno)
may be invoked only against the State (People vs Marti)
Only a judge may issue a warrant. EXCEPTION: orders of arrest may be issued by
administrative authorities but only for the purpose of carrying out a final finding of a
violation of a law
VALID WARRANTLESS SEARCHES [NOTE: each of these requires probable cause,
except stop and frisk]
1. searches incidental to lawful arrest (rule 126, Rules of Court) for dangerous weapons or
anything that may have been used or constitute in the commission of an offense
Requisites:
1. the item to be searched was within the arrestee's custody or area of immediate
control
2. the search was contemporaneous with the arrest
2. searches of moving vehicles
3. searches of prohibited articles in plain view
Requisites:
1. prior valid intrusion to a place
2. evidence was inadvertently discovered by the police who has the right to be there
3. evidence is immediately apparent
4. there is no further search
4. enforcement of customs law
5. consented searches
6. stop and frisk (limited protective search of outer clothing for weapons)
7. routine searches at borders and ports of entry
8. searches of businesses in the exercise of visitorial powers to enforce police regulations

- VALID WARRANTLESS ARREST:


1. in flagrante delicto
2. hot pursuit
3. the offender escaped from the penal establishment

Requisites of a valid warrant:

REQUISTES ARREST WARRANT SEARCH WARRANT


1. Probable Cause such facts and circumstances such facts and circumstances
- must refer to 1 specific which would lead a reasonably which would lead a reasonably
offense prudent man to believe that an prudent man to believe that an
offense has been committed and offense has been committed and
the person sought to be arrested the objects sought in the
had committed it connection of the offense are in
the place sought to be searched
2. Personal determination of the judge personally determines the judge must personally
probable cause by the judge the existence of probable cause; examine in the form of searching
it is not necessary that he should questions and answers...
personally examine the in writing and under oath...
complainant and his witnesses the complainants and his
(Soliven vs Makasiar) witnesses...
on facts personally known to
them...
-procedure; (1) personally and attach to the record their
evaluate the fiscal's report, or (2) sworn statements and affidavits.
if [1] is insufficient, disregard it (Silva vs Presiding Judge)
and require the submission of
supporting affidavits of
witnesses
*PRELIMINARY INQUIRY
(task of the judge)
determination of probable cause
for the issuance of warrant of
arrest

*PRELIMINARY
IVESTIGATION PROPER (task
of the prosecutor)
ascertainment whether the
offender should be held for trial
or be released
3. After examination under oath not merely routinary but must be not merely routinary but must be
or affirmation of the complainant probing and exhaustive probing and exhaustive
and the witnesses he may
produce
4. Particularity of description GENERAL RULE: it must GENERAL RULE: when the
contain the name/s of the persons description therein is as specific
to be arrested as the circumstances will
EXCEPTION: if there is some ordinarily allow.
descriptio personae which will EXCEPTION: when no other
enable the officer to identify the more accurate and detailed
accused description could have been
given.

4. PRIVACY OF COMMUNICATIONS AND CORRESPONDENCE

The privacy of communication and correspondence shall be inviolable except upon lawful
order of the court, or when public safety or order requires otherwise, as prescribed by law. (Sec. 3
(1), Art. III)
Any evidence obtained in violation of this or the preceding section shall be inadmissible
for any purpose in any proceeding. (Sec. 3 (2), Art. III)

- The privacy of communication and correspondence shall be inviolable EXCEPT upon lawful
order of the court OR when public safety or order requires otherwise as prescribed by law.
- Any evidence obtained in violation of this or the preceding section shall be inadmissible for any
purpose in any proceeding.

Inviolability
- Exceptions:
1. Lawful order of the court;
2. Public safety or order requires otherwise, as may be provided by law.
- Includes tangible and intangible objects.
- RA 4200: illegal for any person not authorized by all the parties to any privatecommunication,
to secretly record such communications by means of a tape recorder. Telephone extension was
not among the devices covered by this law.

5. FREEDOM OF EXPRESSION
No law shall be passed abridging the freedom of speech, of expression, or of the press, or
the right of the people peaceably to assemble and petition the government for redress of grievances.
(Sec. 4, Art. III)

Freedom of Speech at once the instrument and the guaranty and the bright consummate
flower of all liberty. (Wendell Philips)

A. CONDCEPT/SCOPE

Scope - Any and all modes of expression.


Freedom of Expression is available only insofar as it is exercised for the discussion of
matters affecting the public interest. Purely private interest matters do not come within the
guaranty (invasion of privacy is not sanctioned by the Constitution).
covers ideas that are acceptable to the majority and the unorthodox view. (One of the
functions of this freedom is to invite dispute US Supreme Court; I may not agree with
what you say, but I will defend to the death your right to say it. - Voltaire)
The freedom to speak includes the right to silent. (This freedom was meant not only to
protect the minority who want to talk but also to benefit the majority who refuse to listen.
- Socrates)

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

Modes of Expression
Oral and written language
Symbolisms (e.g. bended knee, salute to the flag, cartoons)

B. ASPECT

1. FREEDOM FROM PREVIOUS RESTRAINT OR CENSORSHIP


2. FREEDOM FROM SUBSEQUENT PUNISHMENT

1. Freedom from censorship or prior restraint


- Need not be total suppression, even restriction of circulation constitutes censorship.
- Section 11 (b), RA 66461: legitimate exercise of the police power of the State to regulate
media or communication and information for the purpose of ensuring equal opportunity, time and
space for political campaigns. Unrelated to suppression of speech as it is only incidental and no
more than is necessary to achieve the purpose of achieving the purpose of promoting equality.
- Movie censorship: movie, compared to other media of expression, have a greater capacity
for evil and must, therefore, be subjected to a greater degree of regulation.
- Power of MTRCB can be exercised only for purposes of classification not censorship.
- Primacy of freedom of expression over Enriles right to privacy because Enrile was a
public figure and a public figures right to privacy is narrower than that of an ordinary citizen.
(Ayer Productions vs. Judge Capulong)
- Board of Review for Motion Pictures and Television (BRMPT) X-rating when the
program would create a clear and present danger of an evil which the State has the right to prevent.
(Inglesi ni Cristo vs. CA)
- No law prohibiting the holding and reporting of exit poll. (ABS-CBN Broadcasting
Corporation vs. COMELEC)

FREEDOM FROM PREVIOUS RESTRAINT OR CENSORSHIP

Embodied in Art. III, Sec. 4 [No law shall be passed abridging the freedom of speech, of
expression, or of the press, or the right of the people peacably to assemble and petition the
government for redress of grievances.]

CENSORSHIP conditions the exercise of freedom of expression upon the prior approval of
the government. Only those ideas acceptable to it are allowed to be disseminated.

CENSOR, therefore, assumes the role of arbiter for the people, usually applying his own
subjective standards in determining the good and the not. Such is anathema in a free society.

Grosjean vs American There need not be total suppression; even restriction of circulation constitutes
Press Co. censorship
Burgos vs Chief of Staff the search, padlocking and sealing of the offices of Metropolitan Mail and We Forum
by military authorities, resulting in the discontinuance of publication of the
newspapers, was held to be prior restraint
Mutuc vs COMELEC the COMELEC prohibition against the use of taped jingles in the mobile units used in
the campaign was held to be unconstitutional, as it was in the nature of censorship
Sanidad vs COMELEC the Court annulled the COMELEC prohibition against radio commentators or
newspaper columnists from commenting on the issues involved in the scheduled
plebiscite on the organic law creating the Cordillera Autonomous Region as an
unconstitutional restraint on freedom of expression
But...
Gonzales vs COMELEC the Court upheld the validity of the law which prohibited, except during the prescribed
election period, the making of speeches, announcements or commentaries for or
against the election of any party or candidate for public office.
JUSTIFICATION: the inordinate preoccupation of the people with politics tended
toward the neglect of the other serious needs of the nation and the pollution of its
suffrages.
Iglesia ni Cristo vs CA The Board of Review for Motion Pictures and Television (BRMPT) has the authority
to review the petitioner's television program.
However, the Board acted with grave abuse of discretion when it gave an X-rating
to the TV program on the ground of attacks against another religion. Such a
classification can be justified only if there is a showing that the tv program would
create a clear and present danger of an evil which the State ought to prevent.
Primicias vs Fugosos The respondent mayor could only reasonably regulate, not absolutely prohibit, the use
of public places for the purpose indicated.
National Press Club vs the Supreme Court upheld the validity of Sec. 11(b), RA 6646, which prohibited any
COMELEC person making use of the media to sell or to give free of charge print space or air time
for campaign or other political purposes except to the COMELEC. This was held to
be within the power of the COMELEC to supervise the enjoyment or utilization of
franchises for the operation of media of communication and information, for the
purpose of ensuring equal opportunity, time and space, and the right to reply, as
well as uniform and reasonable rates of charges for the use of such media facilities.
Osmea vs COMELEC SC reaffirmed validity of RA 6646 as a legitimate exercise of police power. The
regulation is unrelated to the suppression of speech, as any restriction on freedom of
expression occasioned thereby is only incidental and no more than is necessary to
achieve the purpose of promoting equality.
NOTE: This is not inconsistent with the ruling in PPI vs COMELEC, because in the
latter, SC simply said that COMELEC cannot procure print space without paying just
compensation.
Adiong vs COMELEC COMELEC's resolution prohibiting the posting of decals, and stickers in mobile units
like cars and other moving vehicles was declared unconstitutional for infringmenet of
freedom of expression.
Besides, the constitutional objective of giving the rich and poor candidates' equal
opportunity to inform the electorate is not violated by the posting of decals and
stickers on cars and other vehicles.
Overbreadth doctrine = prohibits the government from achieving its purpose by
means that weep unnecessarily broadly, reaching constitutionally protected as well as
unprotected activity; the government has gone too far; its legitimate interest can be
satisfied without reaching so broadly into the area of protected freedom.
Gonzales vs katigbak petitioner questioned the classification of the movie as for adults only. the petition
was dismissed because the Board did not commit grave abuse of discretion.

2. Freedom from subsequent punishment


- Without this assurance, the individual would hesitate to speak for fear that he might be
held accountable for his speech, or that he might be provoking the vengeance of the officials he
may have criticized.
- Not absolute and may be properly regulated in the interest of the public.

FREEDOM FROM SUBSEQUENT PUNISHMENT

Embodied in Art. III, Sec. 18 (1) [No person shall be detained solely by reason of his political beliefs
and aspirations]

without this assurance, the individual would hesitate to speak for fear that he might be held to account
for his speech, or that he might be provoking the vengeance of the officials he may have criticized.

not absolute; subject to police power and may be regulated (freedom of expression does not cover
ideas offensive to public order)

- Obscenity
US vs Kottinger SC acquitted accused who was charged of having offered for sale pictures of
half-clad members of non-Christian tribes, holding that he had only
presented them in their native attire
People vs Go Pin Accused was convicted for exhibiting nude paintings and pictures,
notwithstanding his claim that he had done so in the interest of art. SC, noting
that he has charged admission fees to the exhibition, held that his purpose
was commercial, not merely artistic.
Pita vs CA SC declared that the determination of what is obscene is a judicial function.
Miller vs California Test of Obscenity:
whether the average person, applying contemporary community
standards, would find that the work, taken as a whole, appeals to the
prurient interest
whether the work depicts, in a patently offensive way, sexual
conduct specifically defined by the applicable law
whether the work, taken as a whole, lacks serious literary, artistic,
political or scientific value

Justice Douglas, dissent: I do not think we, the judges, were ever given the
constitutional power to make definitions of obscenity. Obscenity is a
hodgepodge.
- The Courts should not apply a national standard but the standard of the community in which the
material is being tested.

- Criticism of Official Conduct


Lagunzad vs Sotto Vda. the Court granted the petition to restrain the public exhibition of the movie
de Gonzales Moises Padilla Story, because it contained fictionalized embellishments.
Being a public figure does not destroy one's right to privacy.
Ayer Productions vs the tribunal upheld the primacy of freedom of expression over Enrile's right
Judge Capulong to privacy, because Enrile was a public figure and a public figure's right to
privacy is narrower than that of an ordinary citizen. Besides, the movie Four
Days of Revolution (sabi ni Cruz) / A Dangerous Life (sabi ni Nachura)
/ The Four Day Revolution (sabi sa case) would not be historically faithful
without including therein the participation of Enrile in the EDSA revolution.
US vs Bustos SC compared criticism of official conduct to a scalpel that relieves the
abscesses of officialdom
People vs Alarcon newspaper publications tending to impede, obstruct, embarrass or influence
the courts in administering justice in a pending suit or proceeding constitutes
criminal contempt which is summarily punishable by the courts.
In re Jurado a publication that tends to impede, embarrass or obstruct the court and
constitutes a clear and present danger to the administration of justice is not
protected by the guarantee of press freedom and is punishable by contempt.
It is not necessary that publication actually obstructs the administration of
justice, it is enough that it tends to do so.
In re Sotto a senator was punished for contempt for having attacked a decision of SC
which he called incompetent and narrow-minded, and announcing that he
would file a bill for its reorganization
In re Tulfo Tulfo's Sangkatutak na Bobo column was held contumacious. Freedom of
the press is subordinate to the decision, authority and integrity of the
judiciary and the proper administration of justice.
In re Laureta a lawyer was held in contempt and suspended from the practice of law for
wrting individual letters to members of the SC division that decided a case
against his client, arrogantly questioning their decision
Zaldivar vs a member of the Bar who imputed charges of improper influence, corruption
Sandiganbayan and other misdeeds to members of the Supreme Court was suspended from
the practice of law as neither the right of free speech nor the right to engage
in political activities can be so construed or extended as to permit any such
liberties to a member of the bar.

Right of students to free speech in school premises not absolute.


GENERAL RULE: a student shall not be expelled or suspended solely on the basis of
articles he has written
EXCEPTION: when the article materially disrupts class work or involves substantial
disorder or invasion of rights of others, the school has the right to discipline its students (in
such a case, it may expel or suspend the student)

C. TEST OF VALID GOVERNMENTAL INTERFERENCE

- Test for the validity of government regulation, valid if (OBrien Test):


1. within the constitutional power of government;
2. furthers an important or substantial government interest;
3. government interest is unrelated to the suppression of free expression; and
4. incidental restriction on the freedom is no greater than is essential to the furtherance of that
interest.
- Overbreadth Doctrine: prohibits government from achieving its purpose by means that sweep
unnecessarily broadly, reaching constitutionally protected as well as unprotected activity.

Test of valid government interference


1. Clear and Present Danger Rule
- Whether the words are used in such circumstances and of such nature as to create a clear and
present danger that they will bring about the substantive evils that the State has the right to prevent.
- The substantive evil must be extremely serious and the degree of imminence extremely high
before utterances can be punished.
- Rule: the danger created must not only be clear and present but also traceable to the ideas
expressed.
- clear: seems to point to a causal connection with the danger of the substantive evil arising from
the utterance questioned
- present refers to the time element, identified with imminent and immediate danger
- The danger must not only be probable, but very likely inevitable.
2. Dangerous Tendency Rule
- Words uttered create a dangerous
tendency of an evil which the State has the right to prevent, then such words are punishable.
- Sufficient if the natural tendency and the probable effect of the utterance were to bring about the
substantive evil that the legislative body seeks to prevent.
3. Balancing of Interests Test
- When particular conduct is regulated in the interest of public order, and the regulation results in
an indirect, conditional or partial abridgment of speech, the duty of the courts is to determine which
of the two conflicting interests demands the greater protection under the particular circumstances
presented.
- Requires a court to take conscious and detailed consideration of the interplay of interests
observable in a given situation.
Tests of valid governmental interference (criteria in determining the liability of the
individual for ideas expressed by him) :

1. Clear and Present Danger Rule


- Most libertarian
- whether the words are used in such circumstances and of such a nature as to create a clear
and present danger that they will bring about the substantive evils that the State has the
right to prevent.
- The substantive evil must be extremely serious and the degree of imminence extremely
high before utterances can be punished
- CLEAR = causal connection with the danger of the substantive evil arising from the
utterance
- PRESENT = time element; imminent and immediate danger (the danger must not only
be probable but also inevitable)

Terminiello vs City (speech inside an auditorium with 800 persons)


of Chicago speech is often provocative and challenging. hence, fighting
words are not sufficient to convict a person absent a clear and
present danger of a serious substantive evil
Primicias vs Fugosos The respondent mayor could only reasonably regulate, not absolutely
prohibit, the use of public places for the purpose indicated.
the condition of Manila at that time did not justify the mayor's
fears. there was no clear and present danger.
decided in 1947
Navarro vs Villegas (compare with Primicias case)
SC sustained respondent mayor's act of refusing to issue a permit
enabling students to hold a public rally. Mayor feared the rally would
result to public disorder.
- decided in 1970
Reyes vs Bagatsing the denial of a permit to hold a public rally was invalid as there was
no showing of the probability of a clear and present danger of an evil
that might arise as a result of the meeting. The burden of proving such
eventually rests on the Mayor.

2. Dangerous Tendency Doctrine


- if the words uttered create a dangerous tendency of an evil which the State has the right to prevent,
then such words are punishable.
- Justice Holmes, critique of this doctrine: Every idea is an incitement. If believed, it is acted on
unless some other belief outweighs it, or some failure of energy stifles the movement at its birth.

Bayan vs Executive 1. the Calibrated Pre-emptive Response Policy is null and void.
Secretary Ermita Respondents are enjoined from using it and to strictly observe the
requirements of maximum tolerance.
Cabansag vs It is not necessary that some definite or immediate acts of force or
Fernandez violence be advocated. It is sufficient that such acts be advocated in
general terms.
A mere tendency toward the evil was enough.
People vs Perez Accused declared: The Filipinos like myself must use bolos for
cutting off (Governor-General) Wood's head for having
recommended a bad thing for the Filipinos, for he has killed our
independence.
He was sentenced to jail.

3. Balance of Interest Test


- when particular conduct is regulated in the interest of public order, and the regulation
results in an indirect, conditional, partial abridgment of speech, the duty of the courts is to
determine which of the two conflicting interests demands the greater protection under the
circumstances presented.
- Justice Black, critique: it, in effect, allows the courts to decide that this freedom may not
be enforced unless they believe it is reasonable to do so.

CLEAR AND PRESENT DANGEROUS TENDENCY BALANCE OF INTEREST


DANGER RULE RULE RULE
liberty is preferred Authority is preferred the issue is resolved in the light of
the peculiar circumstances
obtaining in each particular case

D. LIBEL

- Public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or


any act, omission, condition, status or circumstance tending to cause the dishonor, discredit or
contempt of a natural or juridical person, or to blacken the memory of one who is dead.
- Oral defamation is called slander.
- Every defamatory imputation is presumed to be malicious.
Exceptions:
1. a private communication made by any person to another in the performance of any legal,
moral or social duty; and
2. fair and true report, made in good faith, without any comments or remarks, of any
judicial, legislative or other official proceedings which are not of a confidential nature, or
of any statement, report or speech delivered in said proceedings, or of any act performed
by public officers in the exercise if their functions.
- Public has the right to be informed on the mental, moral and physical fitness of candidates for
public officer. The rule applies only to fair comments on matters of public interest, fair comment
being that which is true, or if false, expresses the real opinion of the author based upon reasonable
degree of care and on reasonable grounds.

E. MOVIE CENCORSHIP

F. CRITICISM OF OFFICIAL CONDUCT

- US vs. Bustos: individual is given the widest latitude in criticism of official conduct.
- Publication that tends to impede, embarrass or obstruct the court and constitutes a clear
and present danger to the administration of justice is not protected by the guarantee of press
freedom and punishable by contempt. It is not necessary to show that the publication actually
obstructs the administration of justice; it is enough that it tends to do so.
- Freedom of press is subordinate to the decision, authority, integrity and independence of
the judiciary and the proper administration of justice.

Right of students to free speech in school premises not absolute


- Campus Journalism Act provides that a student shall not be expelled or suspended solely
on the basis of articles he or she has written, the same should not infringe on the schools right to
discipline its students.
- The school cannot suspend or expel a student solely on the basis of the articles he or she
has written, except when such article materially disrupts class work or involves substantial disorder
or invasion of rights of others.

G. OBSCENITY

Determination of what is obscene is a judicial function.

H. ASSEMBLY AND PETTITION

Assembly and Petition


- Right to assemble is not subject to prior restraint.
- It may not be conditioned upon prior issuance of a permit or authorization from
government authorities.
- It must be exercised in such a way as will not prejudice the public welfare.
- PUBLIC PLACE: permit for the use of such place, and not for the assembly itself, may be
validly required. The power of local officials is merely one of regulation.
- Permit to hold public assembly shall not be necessary where the meeting is to be held in
a PRIVATE PLACE.

Public Assembly Act: a permit shall not be necessary where the meeting is to be heldin a
private place, in the campus of the government-owned or operated educational institution, or
in a freedom park.
Where permit is required, written application shall be filed with the mayors office at least 5
days before the scheduled meeting and shall be acted upon within 2 days. Otherwise, permit
shall be deemed granted.
Denial shall be justified only upon clear and convincing evidence that the public assembly will
create a cleat and present danger to public order, safety, convenience, morals and health.
Action shall be communicated within 24 hours to the applicant may appeal to appropriate
courts.
Decision must be reached within 24 hours.
The law permits law enforcement agencies to detail a contingent under a responsible officer at
least 100 meters away from the assembly in case it becomes necessary to maintain order.

- Academic freedom of institutions of higher learning cannot be utilized to discriminate against


those who exercise their constitutional rights.
- Right to free assembly and petition prevails over economic rights.
- Education of the youth occupies a preferred position over the freedom of assembly and petition.

Tests priorly applied by the court:


1. Purpose Test
2. Auspice Test
Tests of a lawful assembly
Purpose Test
- Ideally, the test should be the purpose for which the assembly is held, regardless of the
auspices under which it is organized
Auspices Test
- Evangelista vs Earnshaw: the mayor of Manila prohibited the members of the Communist
Party from holding any kind of meeting, revoking all permits previously granted by him
on the ground that the party had been found (by the fiscal's office) to be an illegal
association.

Assembly and Petition


Public issues are better resolved after an exchange of view among citizens meeting with each
other for the purpose.
not subject to previous restraint or censorship
regulated by BP 880 (Public Assembly Act)

Tanada vs SC sustained the petitioner's motion compelling the mayor of Manila to issue a permit
Bagatsing to hold a rally, but changed the meeting place to Ugarte Field, a private park
Malabanan vs (several students were suspended for 1 year for conducting demonstration in the
Ramento premises of a university outside the area permitted by the school authorities)
SC emphasized that the students did not shed their constitutional rights to free speech
at the schoolhouse gate, and permitted the students to re-enroll and finish their studies.
Villar vs TIP (several students were barred from re-enrollment for participating in demonstrations)
while the Court upheld the academic freedom of institutions of higher learning, which
includes the right to set academic standards to determine under what circumstances
failing grades suffice for expulsion of students, it was held that this right cannot be
utilized to discriminate against those who exercise their constitutional rights to
peaceful assembly.
Non vs Dames SC abandons its ruling in Alcuaz vs PSBA (that enrolment of a student is a semester-
to-semester contract and the school may not be compelled to renew the contract)
upholding the primacy of freedom of expression, because the students do not shed theur
constitutionally protected rights at the school gate.
PBM Employees right to free assembly and petition prevails over economic rights.
Assoc vs PBM

Right of Association

Art. III, Sec. 8

deemed embraced in freedom of expression because the organization can be used as a vehicle
for the expression of views that have a bearing on public welfare.
SSS Employees right to organize does not carry with it right to strike
Assoc vs CA
Victoriano vs
Elizalde Rope
Workers' Union
Occena vs right of association was not violated where political parties were prohibited from
COMELEC participating in the barangay elections to insure the non-partisanship of the candidates.
In re Edillon Bar integration does not compel the lawyer to associate with anyone. Integration does
not make a lawyer a member of any group of which he is not already a member.

Access to Information

- the citizenry has a right to know what is going on in the country and in his government so he can
express his views thereon knowledgeably and intelligently

Valmonte v The people have a right to access official records but they cannot compel custodians
Belmonte of official records to prepare lists, abstracts, summaries and the like, such not being
1989 based on a demandable legal right.
Baldoza v Judges cannot prohibit access to judicial records. However, a judge may regulate the
Dimaano manner in which persons desiring to inspect, examine or copy records in his office,
1976 may exercise their rights.
Legaspi v Civil Personal interest is not required in asserting the right to information on matters of
Service public concern.
Commission What matters constitute public concern should be determined by the court on a
1987 case to case basis.
Chavez v PCGG Public concern (def.) writings coming into the hands of public officers in
1998 connection with their official functions
Ill-gotten wealth is, by its nature, a matter of public concern.
Privileged communication: (1) national security, (2) trade secrets, (3) criminal
matters pending in court,
Echegaray case SC held that making the Lethal Injection Manual inaccessible to the convict was
unconstitutional.

I. BP 880 (PUBLIC ASSSEMBLY ACT OF 1985)

Public Assembly Act: a permit shall not be necessary where the meeting is to be heldin a
private place, in the campus of the government-owned or operated educational institution, or
in a freedom park.

BATAS PAMBANSA BLG. 880


AN ACT ENSURING THE FREE EXERCISE BY THE PEOPLE OF THEIR RIGHT
PEACEABLY TO ASSEMBLE AND PETITION THE GOVERNMENT FOR OTHER
PURPOSES

Section 1. Title - This Act shall be known as "The Public Assembly Act of 1985."

Section 2. Declaration of policy - The constitutional right of the people peaceably to assemble and
petition the government for redress of grievances is essential and vital to the strength and stability of the
State. To this end, the State shall ensure the free exercise of such right without prejudice to the rights of
others to life, liberty and equal protection of the law.

Section 3. Definition of terms - For purposes of this Act:

(a) "Public assembly" means any rally, demonstration, march, parade, procession or any other
form of mass or concerted action held in a public place for the purpose of presenting a lawful
cause; or expressing an opinion to the general public on any particular issue; or protesting or
influencing any state of affairs whether political, economic or social; or petitioning the
government for redress of grievances.

The processions, rallies, parades, demonstrations, public meetings and assemblages for religious
purposes shall be governed by local ordinances: Provided, however, That the declaration of
policy as provided in Section 2 of this Act shall be faithfully observed.

The definition herein contained shall not include picketing and other concerted action in strike
areas by workers and employees resulting from a labor dispute as defined by the Labor Code, its
implementing rules and regulations, and by the Batas Pambansa Bilang 227.

(b) "Public place" shall include any highway, boulevard, avenue, road, street, bridge or other
thoroughfare, park, plaza, square, and/or any open space of public ownership where the people
are allowed access.

(c) "Maximum tolerance" means the highest degree of restraint that the military, police and other
peace keeping authorities shall observe during a public assembly or in the dispersal of the same.

(d) "Modification of permit" shall include the change of the place and time of the public
assembly, rerouting of the parade or street march, the volume of loud-speakers or sound system
and similar changes.

Section 4. Permit when required and when not required - A written permit shall be required for any
person or persons to organize and hold a public assembly in a public place. However, no permit shall be
required if the public assembly shall be done or made in a freedom park duly established by law or
ordinance or in private property, in which case only the consent of the owner or the one entitled to its
legal possession is required, or in the campus of a government-owned and operated educational institution
which shall be subject to the rules and regulations of said educational institution. Political meetings or
rallies held during any election campaign period as provided for by law are not covered by this Act.

Section 5. Application requirements - All applications for a permit shall comply with the following
guidelines:
(a) The applications shall be in writing and shall include the names of the leaders or organizers;
the purpose of such public assembly; the date, time and duration thereof, and place or streets to be
used for the intended activity; and the probable number of persons participating, the transport and
the public address systems to be used.

(b) The application shall incorporate the duty and responsibility of applicant under Section 8
hereof.

(c) The application shall be filed with the office of the mayor of the city or municipality in whose
jurisdiction the intended activity is to be held, at least five (5) working days before the scheduled
public assembly.

(d) Upon receipt of the application, which must be duly acknowledged in writing, the office of the
city or municipal mayor shall cause the same to immediately be posted at a conspicuous place in
the city or municipal building.

Section 6. Action to be taken on the application -

(a) It shall be the duty of the mayor or any official acting in his behalf to issue or grant a permit
unless there is clear and convincing evidence that the public assembly will create a clear and
present danger to public order, public safety, public convenience, public morals or public health.

(b) The mayor or any official acting in his behalf shall act on the application within two (2)
working days from the date the application was filed, failing which, the permit shall be deemed
granted. Should for any reason the mayor or any official acting in his behalf refuse to accept the
application for a permit, said application shall be posted by the applicant on the premises of the
office of the mayor and shall be deemed to have been filed.

(c) If the mayor is of the view that there is imminent and grave danger of a substantive evil
warranting the denial or modification of the permit, he shall immediately inform the applicant
who must be heard on the matter.

(d) The action on the permit shall be in writing and served on the application within twenty-four
hours.

(e) If the mayor or any official acting in his behalf denies the application or modifies the terms
thereof in his permit, the applicant may contest the decision in an appropriate court of law.

(f) In case suit is brought before the Metropolitan Trial Court, the Municipal Trial Court, the
Municipal Circuit Trial Court, the Regional Trial Court, or the Intermediate Appellate Court, its
decisions may be appealed to the appropriate court within forty-eight (48) hours after receipt of
the same. No appeal bond and record on appeal shall be required. A decision granting such permit
or modifying it in terms satisfactory to the applicant shall, be immediately executory.

(g) All cases filed in court under this Section shall be decided within twenty-four (24) hours from
date of filing. Cases filed hereunder shall be immediately endorsed to the executive judge for
disposition or, in his absence, to the next in rank.

(h) In all cases, any decision may be appealed to the Supreme Court.
(i) Telegraphic appeals to be followed by formal appeals are hereby allowed.

Section 7. Use of public thoroughfare - Should the proposed public assembly involve the use, for an
appreciable length of time, of any public highway, boulevard, avenue, road or street, the mayor or any
official acting in his behalf may, to prevent grave public inconvenience, designate the route thereof which
is convenient to the participants or reroute the vehicular traffic to another direction so that there will be no
serious or undue interference with the free flow of commerce and trade.

Section 8. Responsibility of applicant - It shall be the duty and responsibility of the leaders and organizers
of a public assembly to take all reasonable measures and steps to the end that the intended public
assembly shall be conducted peacefully in accordance with the terms of the permit. These shall include
but not be limited to the following:

(a) To inform the participants of their responsibility under the permit;

(b) To police the ranks of the demonstrators in order to prevent non-demonstrators from
disrupting the lawful activities of the public assembly;

(c) To confer with local government officials concerned and law enforcers to the end that the
public assembly may be held peacefully;

(d) To see to it that the public assembly undertaken shall not go beyond the time stated in the
permit; and

(e) To take positive steps that demonstrators do not molest any person or do any act unduly
interfering with the rights of other persons not participating in the public assembly.

Section 9. Non-interference by law enforcement authorities - Law enforcement agencies shall not
interfere with the holding of a public assembly. However, to adequately ensure public safety, a law
enforcement contingent under the command of a responsible police officer may be detailed and stationed
in a place at least one hundred (100) meter away from the area of activity ready to maintain peace and
order at all times.

Section 10. Police assistance when requested - It shall be imperative for law enforcement agencies, when
their assistance is requested by the leaders or organizers, to perform their duties always mindful that their
responsibility to provide proper protection to those exercising their right peaceably to assemble and the
freedom of expression is primordial. Towards this end, law enforcement agencies shall observe the
following guidelines:

(a) Members of the law enforcement contingent who deal with the demonstrators shall be in
complete uniform with their nameplates and units to which they belong displayed prominently on
the front and dorsal parts of their uniform and must observe the policy of "maximum tolerance"
as herein defined;

(b) The members of the law enforcement contingent shall not carry any kind of firearms but may
be equipped with baton or riot sticks, shields, crash helmets with visor, gas masks, boots or ankle
high shoes with shin guards;
(c) Tear gas, smoke grenades, water cannons, or any similar anti-riot device shall not be used
unless the public assembly is attended by actual violence or serious threats of violence, or
deliberate destruction of property.

Section 11. Dispersal of public assembly with permit - No public assembly with a permit shall be
dispersed. However, when an assembly becomes violent, the police may disperse such public assembly as
follows:

(a) At the first sign of impending violence, the ranking officer of the law enforcement contingent
shall call the attention of the leaders of the public assembly and ask the latter to prevent any
possible disturbance;

(b) If actual violence starts to a point where rocks or other harmful objects from the participants
are thrown at the police or at the non-participants, or at any property causing damage to such
property, the ranking officer of the law enforcement contingent shall audibly warn the
participants that if the disturbance persists, the public assembly will be dispersed;

(c) If the violence or disturbances prevailing as stated in the preceding subparagraph should not
stop or abate, the ranking officer of the law enforcement contingent shall audibly issue a warning
to the participants of the public assembly, and after allowing a reasonable period of time to lapse,
shall immediately order it to forthwith disperse;

(d) No arrest of any leader, organizer or participant shall also be made during the public assembly
unless he violates during the assembly a law, statute, ordinance or any provision of this Act. Such
arrest shall be governed by Article 125 of the Revised Penal Code, as amended:

(e) Isolated acts or incidents of disorder or branch of the peace during the public assembly shall
not constitute a group for dispersal.

Section 12. Dispersal of public assembly without permit - When the public assembly is held without a
permit where a permit is required, the said public assembly may be peacefully dispersed.

Section 13. Prohibited acts - The following shall constitute violations of this Act:

(a) The holding of any public assembly as defined in this Act by any leader or organizer without
having first secured that written permit where a permit is required from the office concerned, or
the use of such permit for such purposes in any place other than those set out in said permit:
Provided, however, That no person can be punished or held criminally liable for participating in
or attending an otherwise peaceful assembly;

(b) Arbitrary and unjustified denial or modification of a permit in violation of the provisions of
this Act by the mayor or any other official acting in his behalf.

(c) The unjustified and arbitrary refusal to accept or acknowledge receipt of the application for a
permit by the mayor or any official acting in his behalf;

(d) Obstructing, impeding, disrupting or otherwise denying the exercise of the right to peaceful
assembly;
(e) The unnecessary firing of firearms by a member of any law enforcement agency or any person
to disperse the public assembly;

(f) Acts in violation of Section 10 hereof;

(g) Acts described hereunder if committed within one hundred (100) meters from the area of
activity of the public assembly or on the occasion thereof;

1. the carrying of a deadly or offensive weapon or device such as firearm, pillbox, bomb,
and the like;

2. the carrying of a bladed weapon and the like;

3 the malicious burning of any object in the streets or thoroughfares;

4. the carrying of firearms by members of the law enforcement unit;

5. the interfering with or intentionally disturbing the holding of a public assembly by the
use of a motor vehicle, its horns and loud sound systems.

Section 14. Penalties - Any person found guilty and convicted of any of the prohibited acts defined in the
immediately preceding Section shall be punished as follows:

(a) violation of subparagraph (a) shall be punished by imprisonment of one month and one day to
six months;

(b) violations of subparagraphs (b), (c), (d), (e), (f), and item 4, subparagraph (g) shall be
punished by imprisonment of six months and one day to six years;

(c) violation of item 1, subparagraph (g) shall be punished by imprisonment of six months and
one day to six years without prejudice to prosecution under Presidential Decree No. 1866;

(d) violations of item 2, item 3, or item 5 of subparagraph (g) shall be punished by imprisonment
of one day to thirty days.

Section 15. Freedom parks - Every city and municipality in the country shall within six months after the
effectivity of this Act establish or designate at least one suitable "freedom park" or mall in their respective
jurisdictions which, as far as practicable, shall be centrally located within the poblacion where
demonstrations and meetings may be held at any time without the need of any prior permit.

In the cities and municipalities of Metropolitan Manila, the respective mayors shall establish the freedom
parks within the period of six months from the effectivity of this Act.

Section 16. Constitutionality - Should any provision of this Act be declared invalid or unconstitutional,
the validity or constitutionality of the other provisions shall not be affected thereby.

Section 17. Repealing clause - All laws, decrees, letters of instructions, resolutions, orders, ordinances or
parts thereof which are inconsistent with the provisions of this Act are hereby repealed, amended, or
modified accordingly.
Section 18. Effectivity - This Act shall take effect upon its approval.

Approved, October 22, 1985.