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 illrepute and establishments of the like.

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pending appeal as been allowed even lawful pursuits which are not per se offensive when the employer is willing to post a to the moral welfare of the community. bond. o Magtajas vs. Pryce Properties PP enjoys the presumption of constitutionality While gambling is prohibited, when it is o The presumption is al in favour of validity The allowed, the courts will not pass judgment on judiciary should not lightly set aside legislative the choice of Congress. action when there is no clear invasion of Morality of gambling is not a justiciable issue. personal or property rights under the guise of Gambling is no illegal per se. police regulation. (Us vs. Salaveria) There is nothing in the Constitution that catergorically proscribe or penalize gambling, Life, Liberty, Property for that matter, even mentioning at all. The guarantees extended by the Congress of the Left to the discretion of the Congress to deal United States to the Philippines have been used with the activity as they see fit. in the same sense as like provisions found in the Local governments may not, in spite of United States Constitution... provisions on local autonomy, contravene on Due process of law and equal protection of the judgment of Congress to prohibit laws reach of protection touched all persons, gambling. they be citizens or aliens, natural or corporate. PP to promote general welfare ~a number of cases affirm that the civil o Regulating the slaughter of carabaos rights of aliens are basically the same as o Prescribing provisions for the suppression of those of citizens. The exceptions are the agricultural pets political rights of aliens. o Regulating nuisances ~There is no significant Philippine o Laying down rules for deportation of aliens Jurisprudence on the inherent differences o Regulating building construction and the between natural persons for purposes of the activities of town criers and the noise of bells protection given by the due process o Prescribing registration of land under the clause.~ Torrens System The guarantees of the 14th amendment and so of o Zoning regulations the first paragraph of the Philippine Bill of Rights o Moratorium laws are universal in their application to all persons o Anti-graft laws designed to curb activities of within the territorial jurisdiction without regard public officials to any differences of race, color or nationality. o Restriction on foreign exchange The word person includes aliens private o Limitation on the net profits realized by public corporations, likewise, are persons within the utilities scope of the guarantees in so far as their ~In People vs. Palomar: RA 2631, providing property is concerned. for the raising of funds for the Philippine The guarantee protects liberty. Tuberculosis Society by the issuance of the anti-TB postal stamps could have been Liberty by Justice Malcolm treated as an exercise of the police power. Civil Liberty- may be said to mean that The majority treated it as an exercise of measure of freedom which may be enjoyed in a taxing power, (Fernando, J- concurring)~ civilized community, consistently with the Areas where use of PP has shown peaceful enjoyment of like freedom in others. significant development and change in the The right to liberty guaranteed by the Philippine jurisprudence Constitution includes the right to exist and the o Labor right to be free from arbitrary personal restraint o Agricultural tenancy or servitude. o Social legislation Deemed to embrace the right of man to enjoy The direction of change has been away from the faculties to which he had been endowed by laissez faire1. his creator, subject only to subject on to such PP has been used even in the face of restraints necessary for common welfare. apparent conflict with both the freedom of Liberty includes the right of the citizen to be free contract and the sacredness of contractual to use his faculties: obligations. Even employers choices may o In all lawful ways to live also be curtailed. o to live and work where he will o Thus, the law requiring the decision of o to earn his livelihood by any lawful calling a labor arbiter ordering reinstatement
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SC held- The enumerated establishments are

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 ones 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.

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 Ones profession, employment, trade or calling is a protected property.

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

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 law allowing only skilled workers to be a transportation company confers no property deployed for oversees employment can be right on the route covered thereby. valid. o American Inter-Fashion Corporation vs. No right is absolute and the proper regulation Office of the President of a profession, calling, business or trade has always been upheld as a legitimate subject of Even a privilege may evolve into some sort of a valid exercise for the police power by the property protected by the Constitution as for legitimate governmental functions, the instance when a holder of an export quota has preservation of the State, or the public health been enjoying it for so long and has put and welfare and public morals. substantial investment in making the business o Beltran vs. Secretary of Health the source of employment for thousands o Corona vs. United Harbor Pilots Private commercial blood banks are protected Association of the Philippines by property. An administrative officer shortened the life of However, although their phase out can be existing license of harbour pilots to a certain disadvantageous to the owners as it can date before their retirement but without any affect their business and existing contracts hearing. with hospitals and other health institutions, it can be justified by the duty of the State to Court ruled that the order was a violation of promote the general welfare. the right of the pilots: The state may interfere with personal liberty, It is this pre-evaluation cancellation which with property and with business and primarily makes PPA-AO No. 04-92 occupations in order to secure general unreasonable and constitutionally infirm. welfare. o In a real sense it is a deprivation of o Lucena Grand Central Terminal, Inc. vs. property without due process of the law. JAC Liner, Inc. o Bell vs. Burson An EO requiring the closure of bus terminals Pronouncements which say that licenses are in the city was found to be an unreasonable not protected property but mere privileges exercise of police power as it would seriously cannot be taken as a sweeping declaration inconvenience the riding public. that revocation of licenses never require Even in EO was valid, the MMDA would be the opportunity for a hearing. wrong person to carry it out since this matter Once licenses are issued continuous has been given by law to the DOTC. possession may become essential in the pursuit of a livelihood. Suspension of issued licenses thus involves state action that Right to Life The Constitutional protection of the right of life is adjudicate important interests of licenses. not just a protection of the right to be alive or to o Army and Navy Club of Manila, Inc. vs. the scrutiny of ones limb against physical harm. Court of Appeals The right to life is also the right to good life. Classification of property into historical Importance of quality of living, emphasized in treasures or landmarks to the extent that it Constitution: will involve the imposition of limits on o On Social justice (Article XIII) ownership, must also be done with both o Life of the unborn (Article II, Section 12) procedural and substantive due process. o Policy against nuclear arms (Article II, Section o Duncan Association of Employees vs. 8) Glaxo Welcome o Abolition of death penalty (Article III, Section Policy against employees having marital or 19) romantic relationship with employees of Reflective of the high value the Constitution competitor companies can be justified if places on life. based on the right to guard a companys trade secrets, for instance, those of a pharmaceutical company. Where, however, there is no reasonable Hierarchy of Rights Convention deliberations (session of November necessity for the prohibition, it is an illegal 25, 1972) clearly recognized that the social limitation on employment as property. (as character of private property, emphatically held in Star Paper vs. Simbol) enunciated in [1935] Article II, Section 6 o Executive Secretary vs. Court of Appeals definitely placed property in a position inferior to life of liberty.
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 What cannot be stressed sufficiently is that if

social compact and that the absence of such the liberty involved were the freedom of the protection would lead to anarchy and tyranny. mind or the person, the standard for the validity Property is an important instrument for the of governmental acts is much more rigorous and preservation and enhancement of personal exacting, but where the liberty curtailed affects dignity, at the most the rights of property, the o The poor are oppressed because they are poor. permissible scope of regulatory measure is In their regard, property is as important as life wider Justice Fernando and liberty and to protect their property is to Philippine Blooming Mills Employees protect their life and liberty. Organization vs. Philippine Blooming Mills Property tends to be relegated to a lower level Co, Inc. 1973- Justice Makaisar than life or liberty, it is not because its intimate o While the Bill of Rights also protects property connection with life or liberty is being forgotten. rights, the primacy of human rights over On the contrary, todays hierarchical property rights is recognized. Because these arrangement of values is precisely a recognition freedoms are delicate and vulnerable, as well of the importance of property for man. as supremely precious in our society and the The object of more intensive and extensive threat of sanctions may deter their exercise government regulation of property is to make its almost as potently as the actual application of beneficent purpose equitably available to all. sanctions, they need breathing space to Property is more closely regulated not in order to survive. Permitting government regulation oppress the owner but in order to impress upon only with narrow specificity. him the social order of what he holds. o Property and property rights can be lost Property stands a good chance of serving and enhancing the life and liberty of all. through prescription; but human rights are There are various provisions in the Constitution imprescriptible. If human rights are (especially Article XIII) to protect property but extinguished by the passage of time, then the always with the explicit or implicit reminder that Bill of Rights is a useless attempt to limit the property has a social dimension and that the power of the government and ceases to be an right to property is weighted with social efficacious shield against tyranny of officials, of obligation. 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 restraint was construed mainly in the narrow free expression and of assembly occupy a sense that a legislature must provide due preferred position, as they are essential to the process in the enforcement of law (early history preservation and vitality of our civil and of due process clause in US Constitutional Law). political institutions; and such priority gives Due process these liberties the sanctity and the sanction not o Understood to relate chiefly to the mode of permitting dubious intrusions. procedure which government agencies must o The superiority of these freedoms over follow. property rights is underscored by the fact that o Guarantee of procedural fairness a mere reasonable or rational relation between o A law which hears before it condemns. the means employed by the law and its object or purpose that the law is neither arbitrary Daniel Webster nor discriminatory nor oppressive would o It is not possible to hold that a party, without suffice to validate a law which restricts or due process of law, been deprived of his impairs property rights. On the other hand, a property, when, as regards the issue affecting constitutional or valid infringement of human it, he has, by the laws of the State, a fair trial in rights requires a more stringent criterion, a court of justice, according to the mode of namely existence of a grave and immediate proceeding applicable to such case. (Davidson danger of a substantive evil which the State vs. New Orleans) has the right to prevent. Early decisions in Philippine jurisprudence This is not to, however, that property is not a attempt to define due process (of law): basic right. Property has an intimate relation o U.S. vs. Ling Su Fan with life and liberty. First. That there shall be a law prescribed in You take my life, when you do take the means harmony with the general powers of the whereby I live. Shylock legislative department of the Government; Founders of the US Constitution were aware that Second. That this law shall be reasonable in protection if property was a primary object of the its operation. Third. That it shall be enforced according to the regular methods of
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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 Websters 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 ones 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 Websters 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 Websters 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 Espaol 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 evidencesuch 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 respondents 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.
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o What is required is not an actual hearing but a The contractual obligation of a school to real opportunity to be heard. afford its students a fair opportunity to complete a course is recognized. Assistant executive Secretary vs. Court of Appeals However, the students forfeits his rights and courts are at liberty to reverse the discretion One who refuses to appear at a hearing is of university authorities when: not thereby denied due process if the decision is reached without waiting for him. A student commits a serious breach of Likewise, the requirement of due process discipline can be satisfied by a subsequent due A student fails to maintain the required hearing. academic standards of the school. This has been the gist of later decisions. It is But the courtshas also set down the procedure a rule that guarantees fairness in the which educational institutions must follow. enforcement of laws which effect deprivation. the case of Guzman vs. National Univertsity Examples of these decisions: presents the minimum standards which must be ~On the ejectment of squatters (Mendoza met to satisfy the demands of procedural due vs. National Housing Authority) process: o that the students must be informed in writing Enforcement of responsibility of responsibility of surety (Malayan Insuran vs. the nature and cause of any accusation against Salas) them. o They shall have the right to adduce evidence in On the discipline of students (Molino vs. CA, their own behalf. Benigna vs. Philippine Maritime Institute) o The even must be duly considered by the g For purposes of a hearing on an application committee or official designated by the school for a certificate of public convenience, aside authorities to hear and decide the case. from notice by publication there is required individual notice to operators affected and Similarly, a teacher in a school administrative whose names appear in the list attached to proceeding has a right to be assisted by counsel. the order. (Cordero vs. Public Service Commission)~ Substantive Due Process As a rule of fairness, procedural due process The clause must be understood to guarantee nor helps achieve two purposes: just forms of procedure but also the very o Instrumentality, it contributes to accuracy and substance of life, liberty and property. thus minimizes errors in deprivations. The due process clause must be interpreted both o Intrinsically, to the person who is the subject of as a procedural and as a substantive guarantee. deprivation, it gives him a sense of rational It must be a guarantee against the exercise of participation in a decision that can affect his arbitrary power even when the power is destiny and thus enhances his dignity as a exercised according to proper forms and thinking person. procedure. o The Courts are at liberty indeed under a It has been recently heard that while fairness is solemn duty to look at the substance of not violated in administrative proceedings when things, whenever they enter upon the enquiry the hearing is not the same person who decides whether the legislature has transcended the the case, there is violation of due process when limits if its authority. Justice Harlan the officer who reviews a case is the same person whose decision is on appeal. US vs. Toribio It has also been held that, while notice of hearing o Set the pattern for substantive due process are required in the judicial and quasi-judicial o A statute regulating the slaughter of large proceedings, they are not prerequisites in the cattle, a measure designated to preserve work promulgation of general rules. But fixed rates, animals needed for agriculture, was challenged being a quasi-judicial process, requires hearing. as unlawful deprivation of property. A relatively recent development in Philippine law o The Court, quoting Lawton vs. Steel held: is the articulation of specific due process The State may interfere whenever the public guidelines for the handling of disciplinary cases interest demands it, and in this particular a in schools. large discretion is necessarily vested in the o The development has come about as the legislature to determine, not only what the balancing instruments in conflicts involving the interests of the public require but what rights of the students and the rights of schools measures are necessary for the protection of to academic freedom. such interests. o Licup vs. University of San Carlos
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 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
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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. Childrens Hospital: o The right to contract about ones 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

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 Reaffirmed decisions in the cases Rubi and de Palad for the care and welfare of nonChristian 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 an oppressive in that it operated to 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 appellants 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 OGorman vs. Hartfird Fire Insurance Co. and required 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 Homeowners Association o the Philippines, Inc. vs. Municipal Board of Manila Rare case where a police power measure was deemed unconstitutional.
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 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
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cannot be deprived of life without due process of law. ~But see Teehankees 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

Taada 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
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and well-defined parameters which would enable the 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 distinguished from statutes that are malversation of public funds apparently ambiguous yet fairly applicable to certain types of activities; it may not be 2. receiving (directly or indirectly) any challenged whenever directed against such activities commission, gift, share, percentage, kickback or Parker vs. Levy any pecuniary benefit from any person or entity prosecution originally under the US Uniform in connection with any government contract by Code of Military Justice reason of his office or position the defendant was an army officer who had urged his men not to go Vietnam and called the 3. by illegal or fraudulent conveyance or Special Forces trained to fight their thieves and disposition of assets belonging to the National murderers Government he was not allowed to invoke the void for vagueness doctrine on the premise that accepted 4. obtaining, receiving or accepting (directly or military interpretation and practice had provided enough standards and a fair notice that his conduct indirectly) any shares of stock or equity, was impermissible including a promise of future employment 5. by establishing agricultural, industrial or People vs. de la Piedra commercial monopolies to benefit particular person Criminal statute that 'fails to give a person of or special interests ordinary intelligence fair notice that his 6. by taking advantage of official position, contemplated conduct is forbidden by the statute,' authority, relationship, connection or influence to or is so indefinite that 'it encourages arbitrary and unjustly enrich himself or themselves at the erratic arrests and convictions' is void for expense and to the damage and prejudice of vagueness. Filipinos and Philippines The defense bewailed the vagueness of Estrada vs. Sandiganbayan combination and series. effort of defense of Pres. Estrada to declare the Words of the statute will be interpreted in their Plunder Law (RA 7089) invalid for being vague. natural, plain and ordinary acceptation and The defense attacked the law and claimed that: signification, unless evident that legislature 1.) it suffered from vice of vagueness intended a technical or special meaning. Combination- the result or product of combining; 2.) it dispensed with reasonable doubt standard the act or process of combining in criminal prosecutions Series- a number of things or events of the same class coming one after another in spatial and 3.) it abolished temporal succession The doctrine of void for vagueness does not SC was unconvinced. It said that the burden of apply as against legislations that are merely rebutting the presumption weighs heavily on the couched in imprecise language but which party challenging the validity and must demonstrate nonetheless specify though defectively phrased beyond any tinge of doubt that there is indeed an (may be saved by proper construction); or to infringement of constitution. those that are apparently ambiguous yet fairly Justice Malcolm: To doubt is to sustain. applicable to certain types of activities (no challenge Plunder Law contains ascertainable standards
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illegal for 3 or more persons to assemble on any 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

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.

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 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 People vs. Cayat vague that men of common intelligence must For classification to be reasonable: necessarily guess at its meaning and differ as to its 1. rest on substantial distinctions application (violates first essential due process of law) 2. germane to the purpose of the law overbreadth doctrinedecrees that a governmental purpose may not be achieved by 3. not limited to existing conditions only means which sweep unnecessarily broadly and thereby invade the area of protected freedoms. 4. must apply equally to all members of the same class 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 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 Overbroad law does not need to lack clarity or serves an important state interest and precision while vagueness law does. classification is at least substantially Laws which do not involve speech can be related to serving that interest declared invalid for vagueness. (Lanzetta vs. New Jersey- invalidated a statute for (gender, illegitimacy) vagueness because it criminalized being a member 3.) minimum/ rational basis scrutiny test (most of a gang. liberal) show that challenged classification is rationally related to serving a legitimate Equal protection state interest specific constitutional guarantee of Equality of the Person (all subjects other than those listed above) 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
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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 fencedin 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

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

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

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
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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

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 nonChristians (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 lawmaking 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

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

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
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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.

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.

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

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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 process and the political

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.
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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:

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 courts 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 societys 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 mans 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 persons home and possessions. More important, it protects the privacy and
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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 individuals 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 individuals 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

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firearms and the absence of license of such Court said: firearms. the failure of the witness to mention o Sony Music vs Judge Espaol particular individuals did not necessarily To prevent stealthy encroachment upon, or prove that he had no personal knowledge of gradual depreciation of the right of privacy, a specific illegal transaction even if the liberal construction in search and seizure names were unknown to him. cases is given in favor of the individual. The interest of the law in regulating this Hence, there is no presumption of regularity particular type of operation was not of searches. necessarily to protect a specific victim but to o Columbia Pictures vs. CA protect the public against actual as well as potential injury. In an application for a search warrant for contraband videotapes the presentation of the master tapes of copyrighted films from Determination of Probable Cause to be determined by the judge after examination which copies has been made is essential but under oath or affirmation of the complaint and only if there is doubt about the true nexus the witness he may produce. between the master tape and the copies. o Stonehill vs. Diokno Who may determine probable cause? Court said: Existence of a probable cause o 1935 Constitution: presupposes the introduction of competent proof that the party against whom it is sought Probable cause can only be determined by a has performed particular acts, or committed judge and no other officer. specific omissions violating a given provision of criminal law. Qua Chee Gan vs. Deportation board called attention to this rule which is a departure The court, in invalidating the warrant issued, from 4th Amendment. said that the description of the offense simply o ~probable cause however for the purpose as violation of central bank laws, tariff and Customs Laws, Internal Revenue Code and of filing an information is determined by Revised Penal Code, made it impossible for the prosecuting officer. the judges who issued the warrants to have The court noted: Under the express term of found existence of probable cause. our constitution, it is, therefore doubtful Probable cause of something specific whether the arrest of an individual may be ~The court stressed the seriousness of the ordered by any authority other than the irregularity by pointing to the amended judge if the purpose is merely to determine provision of the Rules of Court which now the existence of probable cause, leading to says that a search warrant shall not issue an administrative investigation. The but upon probable cause in connection with Constitution does not distinguish between one specific offense and that no search warrants in a criminal case and warrant shall issue for more than one administrative proceedings. specific offense. [section 3 of rule 126] It is however different if the order of arrest is passed post the issuance of stonehill issued to carry out a final finding of a warrants. violation, either by an executive or o Central Bank vs, Judge Morfe legislative officer or agency duly authorized for the purpose, as then the warrant is not Failure to show probable cause was raised by that mentioned in the Constitution which is a respondent savings and loan association. issuable only on probable cause. The association was not authorized to accept Cases on judges determining probable deposit of funds from the public nor to engage cause: in the banking business nor to perform any o Collector of Customs vs. Villaluz banking activity or function. After observing activities, member of Central Court ruled that since the Constitution Bank filed an application for a search warrant has conferred upon them the power to alleging that the organization was engaging in determine probable cause for the unauthorized banking activity without purpose of issuing warrants, necessarily, complying with RA 337 they also have the power to conduct preliminary examination even if statues Sufficiency was challenged on the ground that are silent on such power. there was no showing of personal knowledge ~does not include the power to conduct specific illegal transactions with identical preliminary investigation~ parties.
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o Solid Triangle Sales vs. Sheriff Inherent in the courts 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 Returned to the 1935 rule that warrants may for legislature to authorize prosecution or law be issued only by judges. enforcement officers to issue search warrants However, the Commissioner of Immigration or warrants of arrest. may order the arrest of an alien in order to Could any of the responsible officer then carry out a deportation order that has already authorized to determine probable cause? become final. 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.

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 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 fiscals 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
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 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 fiscals 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 fiscals bare certification. All these should be Particularity of Description before the judge. Whatever is not included in the description may The extent of a judges personal examination not be seized. depends on the circumstances of each case. The judge has to exercise sound discretion Cases on the requirement of Particularity of because after all, the personal determination description. is vested in the Judge by the Constitution. o Uy Khyetin vs, Villareal To be sure, the judge must go beyond the The evident purpose and intent of this Prosecutors certification and investigation requirement is to limit the things to be seized report whenever necessary. He should call for to those and only those particularly described the complainant and witnesses themselves to In the search warrant to leave the officers of answer the courts probing questions when the law with no discretion regarding what the circumstances of the case so warrants. articles they shall seize, to the end that unreasonable searches and seizures may not The court thereby returned to the 1935 rule in be made, -- that abuses may not be Alvarez which said that neither the Constitution committed and GOs 48 provides that it is of imperative o Bache and Co vs. Ruiz necessity to take the depositions of witnesses to be presented by the applicant or complainant I A search warrant may be said to particularly addition to the affidavit of the latter. describe the things to be seized when the The purpose of requiring the presentation of description therein is as specific as the depositions is to satisfy the committing circumstances will ordinarily allow or when magistrate of the existence of probable cause. the description expresses a conclusion of fact not of law by which the warrant officer be Notwithstanding Soliven case, subsequent guided in making the search and seizure; or decisions still cite Section 4 of Rule 126 of the when the things described are limited to New Rules on Criminal Procedure: those which bear direct relation to the offense o The judge must before issuing the warrant for which the warrant is being issued. personally examine in the form of searching o People vs. Veloso questions and answers in writing and under oath the complainant and the witnesses he Pre-Commonwealth and early postmay produce on the facts personally known to Commonwealth period them and attach to the record their sworn The legality of a John Doe warrant of arrest statements together with any affidavits was questioned. 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 prosecutors 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.

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 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.
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 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.
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o Also literally applicable warrants comes down Those are impositions which the legislative did not prescribe as to the bank inquiry under the to specification of the documents to be produced AMLA. adequate but not excessive for the purposes of o Simply put, bank inquiry order is not a search relevant inquiry. warrant or a warrant of arrest as it Second Penumbral Area: yet untouched contemplates a direct object but not a seizure by RP jurisprudence, became subject in of persons or property 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 Even when a petitioner admits to opening his inspect appellants dwelling. bag when police asks to see its contents, it does o Sc reversed conviction: We hold that not necessarily follow that the action signifies administrative searches of the kind at issue valid consent. here are significant intrusions upon the th o May be passive conformity due to coercion or interests protected by the 4 amendment, that intimidation 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 o Application for bail or the admission to bail by guaranteed to the individual. an accused is not a waiver of his right to assail o In arriving at conclusion court was aware that the warrant issued for his arrest of the the only effective way to seek universal legalities of irregularities thereof. compliance with the minimum standards required by the municipal codes is through Warrantless Searches and Seizures routine periodic inspections of all structures. The rule that searches and seizures must be o For the determination of probable cause, the supported by a valid warrant is not an absolute court did not require specification of evidence rule. Five exceptions: of violation but allowed the issuing magistrates o The search incidental to arrest evaluation to rest upon the passage of time, o Search of moving vehicles the nature of the building or the condition of o Seizure of evidence in plain view the entire area. o Customs searches KMU vs, Director o Where there is a waiver of a right o Requirement of IDs rare exception is the rule on exigent o EO 240 standardized IDs in government offices, circumstance and stop and frisk rule. 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 Purpose of exception: compel all citizens to have an ID card. EO 240 o Both to protect the arresting officer against applied only to government entities that under physical harm from the person being arrested existing laws were already collecting data and who might be armed with a concealed weapon issuing ID cards as part of their governmental and also to prevent the person arrested from functions. Hence, it did not require legislation. destroying evidence within his reach. Republic vs. Eugenio The exception should not be strained beyond o Bank enquiries raising privacy issues what is needed in order to serve its purpose. o Requirements for search warrants were not Cases on warrantless arrest: imposed by AMLA with respect to bank inquiry o Moreno vs Ago Chi orders. A constitutional warrant requires that An officer making an arrest may take from the the judge personally examine under oath or person arrested any money or property found affirmation the complainant and the witnesses upon his person which was used in the he may produce such examination being in the commission of the crime or was the fruit of form of searching questions and answers. the crime or which might furnish the prisoner
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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. Pao 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 .
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o Checkpoint has been set up on the basis of reports that vehicles from Sagada were being used to transport marijuana. o During inspection, officers saw bulge in accuseds waist. o Accused refuse to comply with request for identification papers, he was made to show what was on his waist it was found to contain hashish. Eurocar Sales o Warrantless search was justified o Attempted coup in 1989 o There was an immediate need to search the suspected arsenal of arms. o In addition, there was general chaos and disorder. o In such situation, waiting for a warrant could give suspects time to hide instruments of the crime Aniag Jr. vs. COMELEC o Recalled case of Valmonte vs. De Villa: An extensive search without warrant could only be resorted to if the officers conducting the search had reasonable or probable cause to believe before the search that either the motorist was a law offender or that they would find the instrumentality or evidence pertaining to the commission of the crime in the vehicle to be searched. o However, search in this case or a car made by police officers twenty meters away from the entrance to the batasan complex was not justified by any earlier confidential report nor by the behavior or appearance of motorists. Caballes vs. CA o the mere mobility of these vehicles does not give the police unlimited discretion to conduct indiscriminate searches without warrants if made within the interior of the territory and the absence of probable cause. o One such form of search of moving vehicles is the stop and search without warrant at military or police checkpoints which has been declared to be not illegal per se, for as long as it is warranted by the exigencies of public order and conducted in a way least intrusive to motorists. o Routine inspections not regarded as violative:

Simply looks into vehicle Flashes a light therein without opening car door. Where occupants are not subjected to physical or body search Where the inspection of vehicle is limited to visual search or visual inspection. Where routine check is conducted in fixed area. 1. WARRANTLESS SEARCHES AND SEIZURES: 3) EVIDENCE IN PLAIN VIEW PEOPLE VS. TABAR Thus, where marijuana sticks fall before the eyes of a police officer from an object a person is carrying, seizure of the sticks would not require a warrant. 2. WARRANTLESS SEARCHES AND SEIZURES: 4) 3. CUSTOMS INSPECTIONS UY KHEYTIN VS. VILLAREAL(#50, 58) It has been traditionally understood that customs officers or border officers may search incoming persons and goods to look for either goods concealed to avoid duties or other illegal materials. 4. WARRANTLESS SEARCHES AND SEIZURES: (5) WAIVER The waiver can be shown by failure to make any objection or even mutter a bit of protest.

DE GARCIA VS. LOCSIN [stated the rule] It is well-settled that to constitute a waiver of a constitutional right, it must appear, First, that the right exists; Secondly, that the person involved had knowledge, either actual or constructive, of the existence of such right; Lastly, that said person had an actual intention to relinquish the right. In this case, there was failure to object an objectionable warrant. But the Court added: In any event, the failure on the part of the petitioner and her bookkeeper to resist or object to the execution of the warrant does not constitute an implied waiver of constitutional right. It is but a submission to the authority of the law. As the constitutional guaranty is not dependent upon any 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 officers authority by force, or waiving his fair grounds constitutional rights; but instead they hold that a
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peaceful submission to a search or seizure is not a consent or an invitation thereto, but is merely a demonstration of regard for the supremacy of the law. PEOPLE VS. COMAPACION Where the raid was conducted by armed officers, the Court said: The act of the accused-appellant in allowing the members of the military to enter his premises and his consequent silence during the unreasonable search and seizure could not be construed as voluntary submission or an implied acquiescence to warrantless search and seizure especially so when members of the raiding team were intimidatingly numerous and heavily armed. His implied acquiescence, if any, could not have been more than mere passive conformity given under coercive or intimidating circumstance and is, thus, considered no consent at all within the purview of the constitutional guarantee. Consequently, herein accused-appellants lack of objection to the search and seizure is not tantamount to a waiver of his constitutional right or a voluntary submission to the warrantless search and seizure. LOPEZ VS. COMMISSIONER OF CUSTOMS The Court saw waiver in the fact that a mere manicurist found in a hotel room allowed officers to make a search in the absence of the registered occupant. The Court said: Under the circumstance, that was the most prudent course of action [for the manicurist]. It would save her and even petitioner Velasco himself from any gossip or innuendo. Nor could the officers of the law be blamed if they would act on appearances. There was a person inside who from all indications was ready to accede to their request. Even common courtesy alone could have precluded them from inquiring too closely as to why she was there. (But if the defense of illegality of the search is purely personal, can it be waived by any other than the person himself?) Thus, Velasco became the victim of gentlemanliness!

prohibition against warrantless search. In the first place, the military operatives, taking into account the facts obtaining in this case, had reasonable ground to believe that a crime was being committed. There was consequently more than sufficient probable cause to warrant their action. Furthermore, under the situation then prevailing, the raiding team had no opportunity to apply for and secure a search warrant from the courts. The trial judge himself manifested that on December 5, 1989 when the raid was conducted, his court was closed. Under such urgency and exigency of the moment, a search warrant should lawfully be dispensed with. 6. THE STOP AND FRISK RULE TERRY VS. OHIO (ADOPTED BY POSADAS VS. CA) In this case, two men repeatedly walked past a store window and returned to a spot where they apparently conferred with a third man. This aroused the suspicion of a police officer. To the experienced officer, the behavior of the men indicated that they were sizing up the store for an armed robbery. When the police officer approached the men and asked them their names, they mumbled a reply. Whereupon, the officer grabbed on of them, spun him around and frisked him. Finding a concealed weapon, he did the same to the other two and found another weapon. In prosecution for the offense of carrying a concealed weapon, the defense of illegal search and seizure was put up.

Finally, a stop and frisk serves a two-fold interest: (1) the general interest of effective crime prevention and detection, which underlies the recognition that a police officer may, under appropriate circumstances and in an appropriate manner, approach a person for purposes of investigating possible criminal behavior even without probable cause; and (2)the more pressing interest of safety and selfpreservation 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 detat. 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
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intrusion on the individuals 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 Franciscos 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 Francisons 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 fiscals 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
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(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. PEOPLE VS. JAYSON Where, however, while patrolling in their car, policemen received a radio message from their camp directing them to proceed to ihaw-ihaw where there had been a shooting, went to the place and there saw the victim and bystanders pointing to the accused fleeing from the scene, the Court ruled under Rule 113 Sec. 5(b): an offense had in fact just been committed, and the officers had personal knowledge of the facts indicating that the accused had committed it.

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. It should, however, also be noted that both statutory law and the 1973 and 1987 Constitutions speak of seizure and arrest and that, while an arrest is necessarily a seizure, not every seizure is an arrest.

An arrest, according to Rules of Court, is the taking of a person into custody in order that he may be forthcoming to answer for the commission of an offense. There are, however, deprivations of physical liberty whose object is not necessarily detention in order to be available to answer for an offense. The classic case is the stop and frisk PEOPLE VS. DORIA 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
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suspended by the same P.D. No. 2045. LOI 1211 said that the PCO would issue: (a) When resort to judicial process is not possible or expedient without endangering public order and safety; or (b) When the release on bail of the person or persons already under arrest by virtue of a judicial warrant would endanger said public order or safety. Two questions were posed by the PCO in relation to the search and seizure clause: (1) Did the President have the poser to order arrest and detention in times of crises? (2) Must the order of arrest and detention conform with the requirements of a valid warrant? These questions were both dealt with in the landmark cases of Garcia-Padilla vs. Enrile and Morales vs. Enrile. And although these cases dealt with the PCO, the doctrine formulated also applied to the earlier ASSO. Although these case happened under the regime of the 1973 Constitution, there are elements in it which have applicability to the current Constitution. The Presidents power of preventive detention rests on solid foundation. The crisis powers of the President as Commander-in-Chief in Article VII, Section 9 of the 1973 Constitution, in hierarchic order were: (1) to call on the armed forces to suppress or prevent lawless violence, invasion, insurrection or rebellion; (2) to suspend the privilege of the writ of habeas corpus; (3) to impose martial law. In the concrete, LOI 1211 linked the PCO with the suspension of the privilege, the second of the Presidents crisis powers; Granted, however, that the President has the power to order preventive detention, is his order beyond judicial review? The question is still relevant because the 1987 provision on emergency retains much of the old rule. But could the answer really be as simple as that? And, even if it could under the 1973 Constitution, can the same be said under the 1987 Constitution? As the question arose in the concrete cases of Garcia-Padilla and Morales, the PCO was inextricably tied to the suspension of the privilege of the writ of habeas corpus.

means for inquiry, the privilege of the writ, had been suspended. Note, however, that the privilege of the writ was merely suspended; it was not forever abolished. Hence, when the suspension of the privilege is lifted and the person is still in detention, should a habeas corpus case be entertained? Similarly, if the preventive detention is ordered on the occasion merely of the calling of the armed forces but without suspension of the privilege, will a habeas corpus case be entertained? The Chief of Justice seemed to suggest that preventive detention, for as long as it remained only preventive, was not subject to judicial review. The detention could be actionable by habeas corpus only should it continue for such a length of time as to make it punitive in character. Assuming that the above is a correct reading of the view of the Chief Justice on the justiciability of the preventive detention under circumstances where neither martial law nor suspension of the privilege is in effect, it is submitted that a contrary view more hospitable to individual liberty is defensible. Admittedly, the language of Justice Holmes in Moyer vs. Peabody on which the Chief Justice relied was sweeping in its affirmation of executive discretion. But executive discretion in MOYER VS. PEABODY was affirmed as possessing finality not for the purpose of blocking release of Moyer but for the purpose of protecting Peabody, a former governor, from being made to answer for action he took while governor. Holmes in fact conceded that the action taken by the then Governor Peabody was without sufficient reason but Holmes absolved the governor of liability because the governor had acted in good faith. The significance of the ruling in Moyer vs. Peabody becomes clearer when compared with the later case of Sterling vs. Constantin.

STERLING VS. CONSTANTIN In Sterling, the object of the suit was not to make a 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
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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
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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 intrusion upon an order of a court. He argued: We LAW. (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 secret involves public questions which the State PROCEEDING. should and ought to know, the State may infringe I. PRIVACY OF COMMUNICATION AND that privacy of communication by some process or by appealing to the Court for the purpose of CORRESPONDENCE Invasion of communication and correspondence is determining whether or not the privacy should be maintained. one kind of search. 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 safety and order require otherwise. poses 2 questions: 1. What type of communication and correspondence It is clear therefore that the 1935 Constitution allowed intrusion into the privacy of communication does the provision cover? 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 demands. correspondence? 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 may be seen in the development of American and great harm be inflicted upon the citizens. 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 ones person. MATERIAL DISTIBUTORS, INC. VS. communication and correspondence were used in a (see NATIVIDAD) general sense. 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? When the correspondence sought is written eavesdropping? Definitely it does. 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. But if the intrusion is to be done through wire-taps, 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 of the offense or offenses sought to be prevented, 1935 Constitution. 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,
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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. . 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 officials 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 dhotel 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. Rodrigos and Regalados 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 that a public officer who exercises this power must 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 Courts 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 Bengzons 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
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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 mans domicile. With Bengzons 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 selfincrimination 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 Concepcions 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 Concepcions 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
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*ever since Stonehill, this rule has been in firm private individuals so as to bring it within the ambit of alleged unlawful intrusion by the government. possession *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 Civil Code searches and seizures. *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.

I. THE 1987 CONSTITUTION IV. VIOLATIONS BY PRIVATE PERSONS *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: *for some, it is essential for the search of individuals acting on their own 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 *Spains 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. if the search is made upon the request of the law enforcers, a warrant must generally be first secured if it is to pass the test of constitutionality. However, if the search is made at the behest or initiative of the proprietor of a private establishment for its own and private purposes, as in the case at bar, and without the intervention of police authorities, the right against unreasonable search and seizure 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 *the privilege was not known to Filipinos until it was transplanted by President McKinleys Instruction to the second Philippine Commission *Justice Malcolm said, a reform so sacred to the people of these islands and won at so dear a cost, should now be protected and carried forward as one would protect and preserve the covenant of liberty itself

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*common law doctrineelevated to a constitutional principle through first amendment of American Federal Constitutionwas summarized y Blackstone: the liberty of the press is indeed essential to the nature of a free state. Every freeman has an 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 consequence of his own temerity.

-on June 30, 1971 the US SC refused injunction; it reiterated the traditional presumption against prior restraint. -the court held that the Government had not met that burden IV. PRIOR RESTRAINT, MOVIES AND 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 petitioners 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
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which essentially required hearing and 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 freedom of broadcast media is lesser in scope than the press because of their pervasive presence in the lives of people and because of their accessibility to children -the performance of the duty of determining whether a publication contains printed matter of libellous character rest with the Director of Posts and involves the exercise of his judgment and 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 prior submission of a film to a censor avoids constitutional infirmity only if takes a place under procedural safeguards designed to obviate dangers of a censorship system. First, the burden of proving that the film is unprotected expression must rest on the censor. Second, the requirement cannot be administered in a manner which would lend an effect of finality to the censors determination. Only a procedure requiring a judicial determination suffices to impose a valid final restraint. The procedure must also assure a prompt judicial decision, to minimize the deterrent effect of an interim and possibly erroneous denial of a license. -under the decree a movie classification board is made the arbiter of what movies and television programs or parts of either are fit for public consumption.; it decides what movies are immoral, indecent, contrary to law and/or good customs, injurious to the prestige of the RP or its people and what tend to incite subversion, insurrection, rebellion, or sedition or tend to undermine the faith and confidence of the people in their government and/or duly constituted authorities. Its decisions are executor unless stopped by court. V. MEDIA AND JUDICIAL PROCESS

the

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-ofextremely 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 judges applicable to the supposed objectionable responsibility to avoid actual prejudice to the publication defendant, it may as well affect his own
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performance. Judges are human beings also and are subject to the same psychological reactions as laymen. For the defendant, telecasting is a form of mental harassment and subjects him to excessive public exposure and distracts him from the effective presentation of his defense.

-the court had to balance Enriles claim to the right of privacy against the producers FOE. The court began its disquisition with the assertion that FOE as applicable to motion pictures:

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 reporters 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 defendants 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 persons 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)
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*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) Arose out of Communist disturbances of the done.. early 30s. Speaking before a group of about 100 or so, -the most stringent protection of free speech would among whom were soldiers of the Phil. not protect a man in falsely shouting fire in a theatre Constabulary, Feleo had made a special and causing a panic appeal to the soldiers in the crowd urging them to imitate the French solders, who shot *clear and present danger rule: test evolved in the their chiefs, to desert their ranks, and to join context of prosecutions for crimes involving the Communists against Americans, to get overthrow of the government, the test can be rid of their leaders and to take possession of applied to other substantive evils which the state the haciendas of the rich landlords. has the right to prevent even if these evils do not Prosecuted for seditious utterances, Feleo clearly undermine the safety of the Republic CONVICTED Justice Street (Borrowing from Gitlow v. New (8) The Constitutional Guarantee in Action: York): Words of this kind are properly Seditious speech considered seditious because they tend to incite the people to take up arms against the People v. Perez (1923- begins the line of constituted authorities and to rise against seditious tackling cases) the established govt. - A decision of a nervous colonial govt. Thus, the doctrine in Perez was given an disturbed by the unrest of the natives. American garb the Dangerous Tendency Arose time when there was a great Rule dissatisfaction with the admin. Of Gov-Gen THE SPEECH IN SUBSTANCE SAID: My bros.: Wood. Nobody violates the law but he who makes - In a pol. discussion that lacked the calm it; and it is necessary here; Russia is the 1st detachment found in a graduate seminar, country where the laborers have their citizen Perez had made this remark: And the emancipation from oppression, imperialism, Fil., like myself must use bolos for cutting off and capitalism. It is necessary that all Woods head for having recommended a bad property should be delivered tot eh govt. for thing for the Phil. its admin., and from this we will see the Prosecuted for seditious speech, redemption of the Fil. People PerezCONVICTED
-

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.

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 (Tafts words in Balzac v. Puerto Rico) did not appeal to the sense of humor of the court.

People v. Evangelista (1932) In a public meeting, Evangelista had read the Consti. and bylaws 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
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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.
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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 Peoples 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 peoples 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
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Parts of the series of vindications of the dignity of the SC, may even give the impression that the final nails have been In Re Subido (1948) in relation with the case driven into the coffin of critics of such an above august body. Article further said <In Re Subido- Angel Parazo, a reporter from Star 1948>: My informant told me that the Reporter, had published an article court held three sessions to deliberate on alleging that the Br exam questions for this petition to withdraw. These sessions, the 1948 had leaked out. The exams were he said, were featured by tumultuous and conducted under direct supervision of the violent discussions among the justices. Sc in the exercise of a consti. duty. He also told me that my series of - The Court, ordered Parazo to reveal the editorials attacking the source of his information unconstitutionality of Justice Secretary Courts question Parazos refusal Ozaeta's order helped in a big way make declared him in CONTEMPT the justices decide against the Court: we have the inherent power of withdrawal. This official pointed out that courts in general, specially of the SC as the position of the petitioner was strong representative of the Judicial Dept., to because the office of the solicitor general, proper and adequate measures to which represented the government in the preserve their integrity, and render case, agreed to the withdrawal. Had the possible and facilitate the exercise of withdrawal been allowed, my informant their functions, including, as in the indicated, the Supreme Court would have present case, the investigation of charges culpably abdicated its important function of error, abuse and misconduct of their as guardian or protector of the Philippine officials and subordinates, including Constitution. lawyers, who are officers of Court - Turned out that Subidos informant was <Parazos defense was the RA 53, sec. 1, one of the Justices of the SC, who leaked newspapermen could be compelled to out the information because he was reveal the source of their news only when disturbed by the delay of the revelation was demanded by the interest promulgation of the decision. of the state. He claimed that the interest Court Subido in CONTEMPT (based on of the state meant security of the state. Torres ruling) The court did not accept his defense. i. Although the information was Subsequent to and because of this furnished by a member of the decision, Congress, by RA 1477, amended court, it nonetheless was the law to read security of the State unauthorized and therefore security of the state. The question may constituted contempt therefore be asked whether such ii. That the article may have amendment can affect what the court hastened the promulgation of claims to be its inherent power> the decision and thus In Re Sotto (1948) forestalled certain evils was Senator Vicente Sotto published an article not recognized as a valid in the Manila Times w/ read partly as defense. Nor did the fact that follows: I regret to say that our High the source of the information Tribunal... is once more putting in was a member of the Court evidence the incompetence or narrow excuse the respondent mindedness o the majority of its iii. His responsibility was members, In the wake of so many considered distinct from that of mindedness of the majority deliberately the Justice concerned. And committed during these last years, I newspaper should restrain the believe that the only remedy to put an desire to satisfy the publics end to so much evil, is to change the yen for news <since the Phil. members of the Supreme Court. To his Judiciary had been liberal to effect, I announce that one of the first the press, the latter should measures, which I will introduce in the reciprocate w/ respect> coming congressional sessions, will have In Re Parazo (1948) and as its object the complete reorganization of the Supreme Court. As it is now
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appear as taking the cue from him. And so of other phases of the issue.

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.

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 Courts 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
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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 courts act of decision making or disrespect and disobedience w/c can breed popular distrust in courts and courts decisions

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 drawnout 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
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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 reexamination.

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.

ABS- CBN v. COMELEC (2000) Exit polls are of recent origin in the country. It is a species of electoral survey conducted by qualified individuals Adiong v. COMELEC (1992) or groups of individuals for the purpose of - Companion case of National Press Club determining the probable result of an - HELD: COMELEC may not prohibit the election by confidentially asking posting of decals and stickers of randomly selected voters whom they candidates on mobile places, public or
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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.

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 peoples right to be informed must be preserved. Moreover, the peoples choice of forum for discussion should not be restricted.

have voted for, immediately after they - ISSUE: An ordinance banning distribution have officially cast their ballots. The in the streets of printed handbills bearing results of the survey are announced to commercial advertising material. the public, usually through the mass HELD (in favor of the ban): It is enough media, to give an advance overview of for the present purpose that the how, in the opinion of the polling stipulated facts justify the conclusion that individuals or organizations, the the affixing of the protest against official electorate voted conduct to the advertising circular was - COMELEC, however, promulgated a with the intent, and for the purpose, of resolution restraining ABS- CBN or any evading the prohibition of the ordinance. other groups, its agents or reps. From If that evasion were successful, every conducting such exit survey. merchant who desires to broadcast - ABS-CBN challenged the resolution- as advertising leaflets in the streets need violative of freedom of expression. only append a civic appeal, or a moral HELD (in favor of the broadcast platitude, to achieve immunity from the company): The holding of exit polls and law's command. 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 - consti. protection of commercial them totally in the guise of promoting advertising was recognized clean, honest, orderly and credible involved the advertising of prescription elections. Quite the contrary, exit polls -drugs and affirmed that commercial properly conducted and publicized -- can advertising enjoyed 1st Amendment be vital tools in eliminating the evils of protection. election-fixing and fraud. - Advertising, however tasteless and excessive it sometimes may seem, is nonetheless dissemination of information Social Weather (SWS) v. COMELEC (2001) as to who is producing and selling what - another landmark decision on media and product, for what reason, and at what electoral process. price. It is a matter of public interest that SWS brought action for prohibition to those decisions, in the aggregate, be enjoin COMELEC from enforcing Sec 5.4 intelligent and well informed. To this end, of RA 9006 (Fair Election Act) w/c provide the free flow of commercial information is that Surveys affecting national indispensable candidates shall not be published fifteen (15) days before an election and surveys affecting local candidates shall not be Commercial Speech- has not been accorded the same published seven (7) days before an level of protection as that given to what is called core election. speech such as political speech. - 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 Hudson Gas v. Public Service limited to ensuing equal opportunity, Commission (1980) time, space and the right to reply as well - Set down the requirements for the as uniform and reasonable rates of protection of commercial speech: charges for the use of such media i. Speech must not be false/ facilities for public info. Campaigns and misleading/ proposing an forums among candidates. illegal activity ii. Governmental interest sought to (11) Commercial Speech be served by the regulation must be substantial Commercial Speech- simple means communication iii. The regulation must directly whose sole purpose is to propose a commercial advance the govt. interest iv. Regulation must not be overbroad Valentine v. Chrestensen (1942)
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Pharmaceutical v. Secretary of Health (2007) - The court found ad absolute ban on advertising breast milk substitutes as unduly restrictive and as more than necessary to further the avowed governmental interest of promoting the health of infants and young children. Additional details

response to duty but merely to injure the reputation of the person who claims to have been defamed. But if speech is not malicious even if defamatory, it is privileged. BORJAL VS. COURT OF APPEALS (1999)

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 libel there is no occasion for choosing between the 2. Obscenity 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 qualifications for office, are of vital concern to the is defined in Article 353 of the RPC thus: 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 public figures. blacken the memory of one who is dead. There is libel when the imputation is public and malicious. Publicity means making the defamatory matter, after it has been written, known US VS. SEDAO (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.
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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. SEDAO 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 persons mental, moral or physical fitness for office, criticism, while liberally treated, enjoys constitutional protection only when it is fair. And SEDAO says that fair criticism means 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. True criticism, therefore, of a persons fitness for 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 persons private life.

PEOPLE VS. TITULAR (1927) Upheld by the decision was a statute which punished anonymous criticism of candidates by means of posters and circulars. What it intended to punish, said the Court, was the anonymous character of the criticism. Such criticism, according to the Court, tended to mislead the voters and tended to injure and defeat a candidate while at the same time denying him the opportunity of searching out his detractors and answering them.

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 persons 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
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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.

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 SEDAO case that true criticism of a persons fitness for office is always fair and therefore a valid defense by itself? The meaning of this conclusion in the analysis of the Sedao case is that truth of the criticism of a persons 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.

Under Section 3 of the Libel Law - the existence of Then the prosecution must come up with proof of malice in fact to rebut the prima facie proof of justifiable motives was an absolute defense. 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.
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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 proved by the prosecution. Further, although the charges are probably not true as to the justice of the peace, they were believed to be true by the petitioners. Good faith surrounded their action. Probable cause for them to think that malfeasance in office existed is apparent. The ends and the motives of these citizens- to secure the removal from office of a person thought to be venal- were justifiable. In no way did they abuse the privilege.

While the BUSTOS decision was not unanimous, the objection raised by the dissent was against the interpretation given to the qualified privilege found in Section 9.

The purpose of Section 9, according to the majority, was to permit all interested persons or citizens with grievances, to freely communicate, with immunity, to the persons who could furnish the protection asked for, requiring, however, at all times that such petitions or communications shall be made in good How did this differ from the first Busto case? faith or with justifiable motives. The majority, however, did not consider the Secretary of Justice a person who could give the relief expected. Moreover, the Court said that the publication had not been made, in the language of the statue, for the sole purpose of protecting the interests of the Secretary of Finance and Justice, to whom it was made, but merely to have one Jose Rivera brought to trial upon a charge of the crime of robbery.

The Court said: in the Julio Bustos case we find wild statements, with no basis in fact, made against reputable members of the judiciary, to persons who could not furnish protection. US VS. CAETE The privilege was applied to communication to religious superior.

The present law on presumption of malice and on The burden of Justice Carsons 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 Carsons thinking.
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2. A 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 confidential nature, or of any statement, report, or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their function.

relating to his official conduct unless he proves that the statement was made with actual malice- that is, with knowledge that it was false or with reckless disregard of whether it was false or not.

Fernando also agreed with the later rule in CURTIS 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 public officials. The rationale behind this rule is that, interest 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 plaintiffs 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 for her, said: It goes without saying that newspapers must enjoy a certain degree of discretion in determining the manner in which a given event should be presented to the public, and the importance to be attached thereto as a news item, and that its presentation in a sensational manner is not per se illegal. To enjoy immunity, a publication containing derogatory information must be not only true but, also, fair, and it must be made in good faith and without comments or remarks. The privilege protected under the New York Times case was conditioned upon the status of the complainant, that is, that he be a public officer. Butts extended the rule to statements affecting public figures. As to Philippine jurisprudence, however, the general rule remains: every defamatory imputation is presumed to be malicious. But the New York Times rule was finally accepted in Borjal vs. Court of Appeals and Jalandoni vs. Drilon JAL VS. SIMANGAN (April 2008)

LOPEZ VS. COURT OF APPEALS

[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 Byrons Julia saying: Ill neer 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
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-there were three reported decisions on this matter a. People v Kottinger b. People v Go Pin c. People v Padan

are not in a position to resist and shield themselves from the ill and preventing effects of these pictures.

-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 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 courts 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 Websters definition of ... the pictures here in question were used not prurient: ...itching, longing; uneasy with desire or exactly for arts 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,
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act

against

good

-it likewise accepted that definition of obscenity -the CA had upheld the banning of the French movie suggested in the American Law Institutes Model version of H.D. Lawrences Lady Chatterleys 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 obscenity is not constitutionally protected. publication of this sort may fall *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 Memoirs v Massachusetts prurient interest. -the court reformulated the test in a manner that *the judges instruction to the jury in the Roth case, sharply departed from Roth in the direction of greater liberality. reproduced by the SC, explains the test well: The test in each case is the effect of the book, picture or publication considered as a whole, not upon any particular class, but upon all those whom it is likely to reach. In other words, you determine its impact upon the average person in community. The books, pictures, and circulars must be judged as a whole, in their entire context, and you are not to consider detached or separate portions in reaching a conclusion. You judge the circulars, pictures and publications which have been put in evidence by present- day standards of the community. Kingsley Pictures v N.Y. Regents Three elements must coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value. -seven years later, the court admitted that Memoirs test was unworkable Miller v California

-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.

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-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. -Miller also clarified the meaning of community standards, it said that although fundamental First Amendment limitations on the powers of the State do not vary from community to community...this does not mean that there are, or should or can be, fixed, uniform national standards of precisely what appeals to the prurient interest or is patently offensive. These are essentially questions of fact, and our nation is simply too big and too diverse for this Court to reasonably expect that such standards could be articulated for all 50 States in a single formulation... To require a State to structure obscenity proceeding around evidence of a national community standard would be an exercise in futility.

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 -petition for mandamus instituted by Cipriano Primicias, campaign manager of the Coalesce Minority Parties, against Mayor Valeriano Fugoso of Manila to compel him to issue a permit for the holding of a public meeting at Plaza Miranda. -the meeting was to be an indignation rally in protest against the alleged fraud committed by the Liberal Party in the recent elections.

-in rejecting the Mayors contention, the Court said that the right of the applicant to a permit was subject only to the Mayors reasonable discretion to 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
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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? -the SC found vigor to say that permit should be granted. In sum the Court said: (1) to justify limitations on freedom of assembly there must be proof of sufficient weight to satisfy the clear and present danger test; (2) there was no showing that 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 Constitution.

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.

(2) Free exercise religion: In general

&

non-establishment

of

1935 Consti. Sec 1 (7) of the Bill of rights:

No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof, and the free exercise and enjoyment of religious profession and worship, without discrimination or US v Grace -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 governments 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 contentneutral, 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 McKinleys Instruction and of Justice Trent) stated The separation of church and state shall be inviolable
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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.

with the courts (Gerona v. Sec. of Education, 1959) Traditionally def. couched on theistic terms o Has reference to ones 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)

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) Defined in Non-theistic terms unnecessary if not dangerous Justice Black included religions such as invitation to excessive entanglement Buddhism, ethical culture and secular of church with state and vice versa. humanism as within the ambit of constitutional protection. 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 Traditional minded reserve the protection articulation and acceptance of an expanding of religion clause for theistic religion concept of religion. Non- Theistic religions offer protection of TWO TERMS Conflict more often freedom of expression clause (where the o Tension exists between the free involved, or the due process clause and the exercise and Non-establishment equal protection clause, where action is clauses involved. 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. Basis of the free exercise clause is the respect for The determination of whether a certain the inviolability of the human conscience. ritual is or not a religious ceremony must rest 2 streams of thought:

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 ones 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.

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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.

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.

...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 The statute itself, allowed the state to enquire second cannot be. whether the religion of the applicant was in good repute. 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 functionary to measure good 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. - different form of licensing was involved HELD upholding legal disqualification, Court FACTS Plaintiff was a non-stock, non-profit, said: religious missionary corp. w/c in the course of o That the free exercise clause permits its ministry sold bibles and gospel portions of the state to prohibit peyote use and to the bible. An attempt was made by the City deny unemployment benefits to those of Manila to compel the plaintiff to obtain discharged for the violation of the both a Mayors permit and a municipal prohibition. license required of those who are engaged in o The court ruled that the religion the business of general merchandise. Plaintiff clause does not relieve an individual challenged this attempt on the ground that it of the obligation to comply with the amounted to religious censorship and law that incidentally forbids (or restrained the free exercise and enjoyment requires) the performance of an act of religious profession, to wit: the distribution w/c his religious belief requires (or and sale of bibles and other religious forbids) if the law is not specifically literature to the people of the Phil. directed to religious practice and is HELD (for the plaintiff) SC said that the otherwise constitutional as applied to consti. guarantee was plaintiffs license. those who engage in the specified o The constitutional guarantee of the acts for non-religious reasons. free exercise and enjoyment of
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religious profession and worship necessary to prevent an immediate carries with it the right to disseminate and grave danger to the security and religious information. Any restraints of welfare of the community that such right can only be justified like infringement of religious freedom may other restraints of freedom of be justified, and only to the smallest expression on the grounds that there extent necessary to avoid the is a clear and present danger of any danger. substantive evil which the State has the right to prevent" Gerona v. Secretary of Education (1959) - SC made a significant departure from Tolentino v. Secretary of Finance (1994) American Guidelines - The Phil. Bible study questioned the validity FACTS Involved a challenge by Jehovahs of the registration provisions of the Value Witnesses against Dept. Order issued by the Added Tax Law, RA 7716, as a prior restraint. Secretary of Education implementing RA Court distinguished it from American Bible 1265 (which prescribed compulsory flag Study case (as to the registration ceremonies in all public schools. Petitioners requirement): Children had refused to salute the Phil. Flag, sing the national anthem, or recite the - The fee in Section 107, although a fixed patriotic pledge; hence they were expelled amount [P1,000], is not imposed for the from school. exercise of a privilege but only for the Observation of the Court (take note daw!): purpose of defraying part of the cost of registration. The registration requirement is - The realm of belief and creed is infinitive and a central feature of the VAT system. It is limitless bounded only by one's imagination designed to provide a record of tax credits and though. So is the freedom of belief, because any person who is subject to the including religious belief, limitless and payment of the VAT pays an input tax, even without bounds. One may believe in most as he collects an output tax on sales made or anything, however strange, bizarre and services rendered. The registration fee is unreasonable the same may appear to thus a mere administrative fee, one not imposed on the exercise of a privilege, much others, even heretical when weighed in the less a constitutional right. scales of orthodoxy or doctrinal standards. But between the freedom of belief and the Centeno v. Villalon- Pornillos (1904) obiter exercise of said belief, there is quite a dictum stretch of road to travel. If the exercise of - Court ruled that the law in question did not said religious belief clashes with the prohibit solicitation for religious purposes but established institutions of society and with only solicitation of contributions for the law, then the former must yield and give charitable or general welfare purposes. way to the latter. The Government steps in - Court ruled that solicitation of contributions in general, w/c may include contributions for and either restrains said exercise or even religious purposes, may be regulated by prosecutes the one exercising it. general law for the protection of the public: Most Significant lines in the decision: Victoriano v. Elizalde Rope Workers Union After all, the determination of whether a (1974) certain ritual is or is not a religious ceremony - Upheld a provision of the old Industrial Peace must rest with the courts. It cannot be left to Act w/c excluded from the application and a religious group or sect, much less to a coverage of a closed shop agreement follower of said group or sect; otherwise, employees belonging to any religious sect w/c prohibits affliction of any of their there would be confusion and members w/ any labor organization misunderstanding for there might be as - Court held: many interpretations and meaning to be o It may not be amiss to point out here given to a certain ritual or ceremony as there that the free exercise of religious are religious groups or sects or followers, all profession or belief is superior to depending upon the meaning which they, contract rights Contractual rights, though in all sincerity and good faith, may therefore, must yield to freedom of religion. It is only where unavoidably want to give to such ritual or ceremony.
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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 color-blind to religious categories and merely look at them as theologically uncategorized overt actions with potential for public disturbance and, therefore, subject to reasonable regulation?
-

At one end, relevant to American federalism but not to the Philippine unitary system, is the view that the clause merely insulates state policy on religion from federal interference. At the other end is the formulation found in Everson vs. Board of Education.

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 2. Both direct and indirect aid to religion are does not involve any religious ceremony... 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 of the political process from interfaith dissension. for instilling patriotism! Gerona lasted til 1993 Voluntarism as a value is both personal and social. As a personal value, it is nothing more than the 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.
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Court chose to categorize and said:

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.

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 The case involved a statue of San Vicente Ferrer general propositions: 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 refused to return the statue. When resolutions were dissension; 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 AGLIPAY VS. RUIZ governmental. The purchase of the statue is more 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 freeVI, 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: It is obvious that while the issuance and sale of the stamps in question may be said to be inseparably linked with an event of a religious character, the resulting propaganda, if any, received by the Roman Catholic Church, was not the aim and purpose of the Government. We are of the opinion that the Government should not be embarrassed in its activities simply because of incidental results, more or less religious in character, if the purpose had in view is one which could legitimately be undertaken by appropriate legislation. The main purpose should not be frustrated by its subordination to mere incidental results not contemplated. GARCES VS. ESTENZO Justice Fernando put it thus: The challenged Administrative Code provision, certainly insofar as it declares ineligible ecclesiastics to any elective or appointive office, is, on its face, inconsistent with the religious freedom guaranteed by the Constitution. Five justices approached the case from a nonestablishment point of view and upheld the law as a safeguard against the constant threat of union of church and state that has marked Philippine history. Under the rules of the 1973 Constitution, however, the vote of the seven justices for declaring the law unconstitutional was one short of the required qualified majority. American jurisprudence is rich with cases on the non-establishment clause and no serious student of
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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. What clearly appears from American jurisprudence on the subject is that Jeffersons 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)

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. 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 Court: of the First Amendment. ZORACH VS. CLAUSON (1952) The test may be stated as follows: what are the purpose and primary effect of the enactment? If
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either is the advancement or inhibition of religion then the enactment exceeds the scope of legislative power as circumscribed by the Constitution. That is to say that to withstand the strictures of the Establishment Clause there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion.

The Court was faced with a statute which required local public school authorities to lend textbooks free of charge to all students in grades seven through twelve; students attending private schools were included.

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 laws 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 Pennsylvanias Non-public First, and in violation of the 14th Amendment to the Elementary and Secondary Education Act, and the companion cases of EARLEY VS. DICENSO and Constitution. ROBINSON VS. DICENSO dealt with Rhode Islands The second category of cases put various forms of Salary Supplement Act. public aid to sectarian institution to the neutrality The Pennsylvania Law authorized the test. 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 authorized the township to reimburse all parents of children of school-age for bus fares pain in transporting their children to school. The statute, therefore, helped the children get to church schools. It was nevertheless held to be valid. Reimbursement was restricted to courses in specified secular subjects, the textbooks and materials had to be approved by the Superintendent, and no payment was to be made for any course containing any subject matter expressing religious teaching, or the morals or forms of worship of any sect. Most of the schools with Justice Blacks 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 BOARD OF EDUCATION VS. ALLEN (1968) school at which the average per pupil expenditure 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
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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 teachers 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 The case involved a New York program which sent could not be ignored. 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 Citys 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 The act was found to be within the principal and primary effect doctrine of Allen and without the entanglement effects of Kurtzman and DiCenso. However, the part providing for unlimited use after 20 years was invalidated as amounting to a contribution to a religious body. (see also COMMITTEE FOR PUBLIC EDUCATION VS. NYQUIST) did not require pervasive monitoring by public authorities, and that administrative cooperation between the government and parochial schools and the dangers of political divisiveness were insufficient to create an excessive entanglement because they are present no matter where such services are offered, and that no court has held that such services cannot be offered off campus.

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 nonin more recent years a number of cases have been establishment cases.] decided which seem to indicate a liberalizing of the The case involved Ohios Pilot Project Scholarship doctrine on non-establishment. 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.
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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 5. NON-DISCRIMINATORY CONCESSIONS: TAX the matter was an ecclesiastical affair outside the EXEMPTIONS AND CHAPLAINCIES 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. 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 LONG VS. BASA (2001) cemeteries, and all lands, buildings, and improvements, actually, directly, and exclusively This was a matter of religious discipline. The disciplinary regulation of the church involved used for religious, charitable, or educational allowed the Board of Directors to expel a member purposes shall be exempt from taxation. for dishonorable conduct injurious to the character Thus the Philippine legal problem is not how to and interest of the Institution without notice and justify the concession but to find out what its scope hearing. The Court observed: is. The established doctrine in this jurisdiction is that The present provision is an adaptation, first made in such action from the church authorities is conclusive 1973, of Article VI, Section 22(3) of the1935 upon the civil courts. Constitution which gave tax exemption to As far back in 1918, we held in US VS. CAETE cemeteries, churches, and parsonages appurtenant thereto, and all lands, building, and improvements that: used exclusively for religious, charitable, or in matters purely ecclesiastical the decision of the educational purposes. proper church tribunals are conclusive upon the civil tribunals. A church member who is expelled from The new provision exempts not all cemeteries but the membership by the church authorities, or a only non-profit cemeteries. Moreover, the condition priest, or a priest of minister who is by them for exemption under the new provision is not just deprived of his sacred office, is without remedy in that the property be used exclusively for religious
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purposes but that it be used actually, directly and school is situated, either in person or by designated exclusively for such purpose. teacher of religion, to teach religion for one-half hour three times a week, in the school building, to Even as it stands, however, the exemption is a those public schools pupils whose parents or remarkable form of aid to religion. It therefore guardians desire it and express their desire thereof presents a problem under the non-establishment in writing filed with the principal teacher of the clause. There has as yet been no case which treats school, to be forwarded to the Division the full import of the changes originally made by the Superintendent, who shall fix the hours and rooms 1973 Constitution. for such teaching. But no public-school teachers shall either conduct religious exercise or teach For the Philippine law the problem is solved by the religion or act as a designated religious teacher in explicit constitutional provision. American the school or building under the foregoing authority, constitutional law, which possesses no similar and no pupils shall be required by any public-school provision, had occasion to grapple with the problem teacher to attend and receive the religious in Walz vs. Tax Commission. instruction herein permitted. Should the opportunity Another direct financial aid to religion comes in the thus given to teach religion be used by the priest, form of salary for chaplains of the armed forces, minister or religious teacher for the purpose of penal institutions, orphanages and leprosaria. Again arousing disloyalty to the Republic of the Philippines, in Philippine law, the constitutional problem is or of discouraging the attendance of pupils at such solved by an explicit provision allowing salary for public school, or creating a disturbance of public priests, preacher, ministers or dignitaries assigned order, or of interfering with the discipline of the to the armed forces, or to any penal institution, or school, the Division Superintendent, subject to government orphanage or leprosarium. (Article VI, approval of the Director of Public Schools, may, after due investigation and hearing, forbid such offending Section 29 (2)) priest, minister, or religious teacher from entering American law likewise allows such financial aid in the public school building thereafter. spite of the absence of a constitutional provision to that effect. Justice Brennan gives the rationale thus: To the proposed constitutional provision, Delegate Since government has deprived such persons Artadi presented the following amendment: [soldiers and inmates] of the opportunity to practice In all public schools, morals or religious instruction their faith at places of their choices, the argument at the option of parents or guardians shall be made runs, government may, in order to avoid infringing a part of the curriculum. the free exercise guarantees, provide substitutes where it requires such persons to be. Artadis original idea was to propose compulsory instruction in religion and morals; but it was Thus, in effect, government maintains its neutrality immediately obvious to him and to his advisers that by affording a balancing factor for the restriction of such a proposal would meet with approval neither free exercise. from the Convention nor from the President of the US. Hence, he proposed that religion and morals, 6. RELIGION IN THE PUBLIC SCHOOLS while made part of the school curriculum, should be The original draft of the 1935 Constitution contained taken only at the option of parents or guardians. He the following provision: Optional religious believed that such instruction was needed for the instruction in public schools as now authorized by welfare of the country and that the option given to parents was sufficient to free the provision from the law shall be maintained. restriction of the Tydings-McDuffie Law prescribing The law on the subject at the time of the Convention separation of church and state. was Section 98 of the Revised Administrative Code. Moreover, he said, the actual practice of allowing It read: religious instruction in the public schools was proof 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.
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Artadi even drew applause from the delegates when doctrine without having to take a religion course in he said: public schools. If the knowledge of grammar and of arithmetic were not required in our schools, sooner or later the child would nevertheless realize the importance of knowing them, because he will come to realize that, in the struggle for life, knowledge of a language and arithmetic is necessary. This realization does not come about with regard to religion. Many students do not come to realize this importance because they do not feel its relevance to their material needs. Because of this, the state, the nation, loses the opportunity of molding the character of Filipino youth according to sound principles; the state loses the occasion for creating in the individual a habit of mind which rationally chooses good and rejects evil Moreover, he said, the proposal would not cost the government any money because the financial burden would be borne, as in the existing system, by the religious groups. Answering Artadis speech, Delegate Roxas very pointedly showed that the suggestion was impracticable: We would have to have a professor for every religion. And it will very easily happen that the father of a child will say that he wants his son to be instructed in the religion, for example, of Zoroaster or the Mormons. Aradis amendment was rejected and the original proposal was approved. It became Article XIV, Section 5 of the 1935 Constitution. As with tax exemption and chaplaincies, therefore, the constitutional problem of religion in the public schools was solved by a specific constitutional provision. Since, however, the constitutional provision made reference to religious instruction as now authorized by law, the question arose whether Section 928 of the Revised Administrative Code, which was the existing law on the subject, itself became part of the Constitution. Some argued that the Constitution had merely approved the concept of religious instruction in the public schools and had left the details of implementation to the legislature. Others maintained that Section 928 had been incorporated into the Constitution by reference and hence could no longer be touched except by constitutional amendment.

The question was never settled under the 1935 Constitution but it was rendered academic by the 1973 Constitution. Article XV, Section 8(8) (1973) 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 writing is respected and as long as the system is schools. He argued that the proposals: 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
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of the religion to which the children or wards belong, It was, however, not a simple intramural property without additional cost to the government. conflict. What made it more complicated was the fact that the property conflict could be settled only The 1973 requirement that the option of the parents by the resolution of an eminently ecclesiastical or guardians be expressed in writing was retained question: Who was the legitimate bishop of the against the argument that such a requirement would church? The SC cut this initial knot by a simple impose an unnecessary and, in some instances, appeal to a passage in American Jurisprudence: difficult burden. The new provision, however specifies that religion classes may be held during Where, however, a decision of an ecclesiastical regular class hours. This specification provides a court plainly violates the law it professes to uniform rule to be followed by all school administer, or is in conflict with the law of the land, administrators. it will not be followed by the civil courts In some instances, not only have the civil courts assumed In specifying that the instructors must be the right to inquire into the jurisdiction of religious designated or approved by religious authorities of tribunals and the regularity of their procedure, but the religion to which the children or wards belong they have subjected their decisions to the test of the law spares the school administrator from the fairness or to the test furnished by the constitution responsibility of having to decide who among and the law of the church. Thus, it has been held competing claimants is the person entitled to teach that expulsion of a member without notice or an a particular religious group. opportunity to be heard is not conclusive upon the civil courts when a property right is involved. Moreover, it was the sense of the Commission that volunteering public school teachers may be allowed Having said this, the Court ruled, on the basis of the to teach religion but, in order to avoid any suspicion internal laws of the Philippine Independent Church, of religious pressure on pupils they may be regularly that Fonancier was not the legitimate bishop, that teaching, not in the school where he or she may be his ouster had been legitimately done, and that his regularly teaching. rival, de los Reyes, was the duly elected head of the As to the phrase without additional cost the Government, its meaning is that religious instruction should not cost government anything over and above normal maintenance costs such as the cost of wear and tear on the building, janitorial services, and electrical cost to light the building. The 1973 provision which said that the teaching should not involve additional cost for parents was removed on the reasoning that, at any rate, government cannot impose extra cost on parents. 7. INTRAMURAL RELIGIOUS DISPUTES Philippine Independent Church. The next question was: Whose faction should control the controverted property? The contention of Fonancier was that his faction should control the property because de los Reyes opposing faction consisted of schismatics. He argued that in case of schism within a church its properties should remain with the faction that continues adhering to the original doctrines and practices of the church irrespective of whether it constitutes a majority or minority thereof.

Another type of cases which has reached the Court The Court answered with another ecclesiastical deals with the intramural conflicts within the ruling: the factions arose not out of a schism, which Philippine Independent Church. requires doctrinal differences, but out of a simple physical division into two groups. The doctrinal FONANCIER VS. COURT OF APPELAS (1955) differences, the Court found, came after the physical division became a reality. [This is the leading case on the subject.] The ultimate position taken by the SC, however, did At issue in the case was the right of control over not require any further discussion of the question certain properties of the Philippine Independent whether there was or there was not in fact schism. Church. Whether the civil courts could take The Court said that even if there in fact had been cognizance of such conflict was problem enough.
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schism, the law could no favor Fonancier. The Court said that the rule established in Watson vs. Jones 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.

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.

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, For, indeed, to allow religious tests would have the whichever principle was applied, Fonancier should effect of formal or practical establishment of lose the case. And lose he did. particular religious faiths with consequent burdens The decision in Fonancier should be compared with imposed on the free exercise of the faiths of nonthose in Gonzales and in the two Verzosa cases. favored believers. 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.

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 principle that decisions of civil courts should not the US SC. be made to turn upon whether one or other of the US VS. MACKINTOSH (1931) competing factions has departed from orthodox doctrine has found affirmation in recent American The SC upheld the denial of citizenship to one who decisions. because of religious scruples refused to take an oath to bear arms in defense of the US. 8. RELIGIOUS TESTS AND OBLIGATIONS OF CITIZENSHIP GIROUARD VS. US (1946)
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This overruled Mackintosh saying: The test oath is abhorrent to our tradition We do not believe that Congress intended to reverse that policy when it came to draft the naturalization oath. Such an abrupt and radical departure from our traditions should not be implied. IN RE SUMMERS (1945) A divided SC upheld the denial of a license to practice law to one who entertained conscientious scruples against participation in war. The decision drew this dissent form Justice Black:

welfare, to uphold the constitution and obey the laws, and to cooperate with the duly constituted authorities in the attainment and preservation of a just and orderly society. This does not appear in the 1987 Constitution.) GIROUARD VS. US

Defense of ones country, however, is not limited to the bearing of arms. Total war in its modern form dramatizes as never before the great cooperative effort necessary for victory. The nuclear physicists 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 The opposite side of religious tests is the imposition of civic obligations that might conflict with a persons religious beliefs. Aspects of this problem have already been seen in the discussion of the Flag Salute Law in Gerona vs. Secretary of Educatio, later reversed by Ebralinag vs. Division Superintendent of Schools, and of compulsory schooling in Wisconsin vs. Yoder. that have been handled by American courts have mainly dealt with the problem of determining not whether anybody should be exempt but rather which classes of persons are covered by existing statutory exemptions.

It should be noted, however, that when the State exempts a person from military service on religious 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 nonwhen bearing arms is contrary to the persons 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,
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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. The provision was supported by penal legislation but no case involving the provision reached the SC. The obligation has since been removed by the 1987 Constitution by being silent about it. 9. CHURCH AND STATE UNDER MARTIAL RULE The decade of martial rule brought about near confrontations between the state and the Catholic Church. The tension continued even in the postmartial law era chiefly because of two factors: the expanded powers of the state under the 1973 Constitution on the one hand, and on the other the churchs perception of an expanded mission.

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 churchs changed understanding of its vocation in the world today. It expresses the churchs 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. This new understanding logically led to major shifts in the churchs social action programs. The most important expression of this shift was the simultaneous rise in diverse places and in diverse forms of Basic Christian Communities. Their common denominator was the effort to integrate social action and faith within community.

These shifts of apostolate have required and in turn have been influenced by new methods of analysis and organization. Structural Analysis together with other methods have been very effective in conscientizing different sectors, giving participants a 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 churchs 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 churchs socio-economic- After martial law shocked many into the need for action and involvement, for a long while martial law political position over the past decade or so. 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
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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 nonexpansive meaning, e.g. in Torcaso and Gironella, it establishment. seems that religion for purposes of the nonestablishment 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 nonDouglas said: Free movement by the citizen is of establishment clause. course as dangerous to a tyrant as free expression Similarly, in our Philippine context, while some activities of basic Christian communities and church social action centers might not materially differ from those of barangay action groups or of government welfare agencies, in motivation and initial inspiration at least church related activities are arguably religious and therefor should be jealously protected by the free exercise clause; and since these same activities are also arguably non-religious but social and humanitarian, they can be the subject of state support without violating the non-establishment clause. of ideas or the right of assembly and it is therefore controlled in most countries in the interest of security... that is why the ticketing of people and the use of identification papers are routine matters under totalitarian regimes.

*under the 1935 constitution, the two liberties were treated under one provision. Article III, section 14 said: The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired. CASE: Villavicencio v. Lukban

-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 the rebel areas during the regime of Mr. Marcos but also and especially for the boat rockers. 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
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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 Sernas 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 limits on the right given by the Constitution. The be prevented from leaving the country. right, moreover, was a public right where the real parties in interest are the people. Hence, every Marcos v Manglapus (celebrated case) -dealt with the ban of President Aquino on the citizen has standing to challenge any violation of former Presidents 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 ones 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 knowledge of the public whenever such data unstated in the Constitution, explicit and residual. contradicted polices which the government wanted to espouse. The reference, however, id to 2. Aliens and right of entry *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 privately funded research over which private the same right. proprietary rights might exist. *as a result, norms for admission of aliens into the country are political matters virtually beyond the Chavez v PCGG reach of judicial review. -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 interOFFICIAL 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 confidence and given scrupulous AFFORDED THE CITIZEN, SUBJECT TO SUCH strict protection. LIMITATIONS AS MAY BE PROVIDED BY LAW. 1. Right to documents information, access to public 2. Trade secrets and banking transactions, pursuant to the Intellectual Property Code and other related laws, and to the Secretary of Bank Deposits Act.
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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 publishers 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
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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 Laurels 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 (Ambroses 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
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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 associations 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 homeowners 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) o 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 selforganizations, 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 unionize, addressed the question of the When we proposed this amendment providing right to strike thus: for self-organization of 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 78 of 103 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 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.

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

Article XII, Section 18, of the new Constitution now also provides: The State may in 3. The Right of association in action: labor, subversion the interest of national welfare or defense, establish 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: utilities and other private enterprises to be operated o Labor unionism by the government. o Communist organization

SECTION 9. PRIVATE PROPERTY SHALL NOT BE TAKEN FOR PUBLIC USE WITHOUT JUST COMPENSATION.

II. Eminent domain: Definition, nature.

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 transportation and communication, and, upon payment of just compensation, transfer to public ownership utilities and other private enterprises to be operated by the government, and

Churches are outside the commerce of man under the Spanish Civil Code. But in Barlin v. Ramirez, the Court said that by virtue of the power of eminent domain the government might have appropriated this church or other churches.

The delegated power of eminent domain of local governments is strictly speaking not a power of
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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 property- which accounts for the present extension eminent authority would allow it to be. 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 founded and maintained by the spontaneous and fraternal contribution of their protector, merchants and industrialists. It was a cemetery adjusted to the taste and traditional practices of those born and educated in China and authorized by the Spanish government as a mark of recognition of the civic contribution of Chinese nationals.

III. PUBLICE USE

Article III, Section 9, puts the matter more succinctly: Private property shall not be taken for public use without just compensation.

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.

There are thus two constitutional limitations on the power of eminent domain:

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.

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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).

IV. JUST COMPENSATION

8. NATIONAL POWER CORPORATION V. COURT OF APPEALS 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 value of the property has increased because of the use to which the expropriator has put it, the value is that of the time of the earlier taking. Otherwise the owner would gain undeserved profit. But if the value increased independently of what the expropriator did, then the values is that of the later filing of the case.

Much of the eminent domain litigation that has reached the SC deals with the adequacy of the compensation given. For this reason, the concept of just compensation has received ample treatment for the Court and a fairly complete explanation of the concept was formed even in the early 1900s.

PROVINCE OF TAYABAS V. PEREZ

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 9. FORFOM DEVT VS. PNR the expropriation.

Moreover, between the time payment is due and the actual payment, legal interest accrues.

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.

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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 PNRs 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 Court.

11.DE KNECHT V. COURT OF APPEALS

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
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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, common in provincial towns, of long delays in the 15.CITY OF MANILA V. BATTLE grant of final compensation. He argued that seldom The governments 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 companys 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. It was thought that while such a requirement would not unduly paralyze the state (because immediate assessment would be made by the judge and not by commissioners), it would at least assure private owners prompt payment.

Reviewing conflicting American authorities, the Court said that according to the weight of authority, if the constitution or statutes do not expressly require it, actual payment or tender before taking is unnecessary, and it will be sufficient 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.
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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 confused the issue in this case.

18.TUASON V. COURT OF APPEALS

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 condemnees 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?

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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 this question could have been squarely set before the Court. It should be noted, however, that, just as the Constitution does not require prior compensation, neither does it specify that compensation be in money. What it does require is just compensation. Jurisprudence has recognized that land owners seldom get what they want for their land, a situation which can be aggravated should they be compelled to accept land Bank notes at discount.

23.RAMIREZ V. COURT OF APPEALS

If landowners are called to sacrifice in the interest o f land reform, by their acceptance of Land Bank 21.MANILA RAILROAD CO. V. PAREDES 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
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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.

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.

24.EXPORT PROCESSING ZONE V. DULAY The just compensation provision of P.D. 42 and similar decrees were declared unconstitutional:

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 compensation under the aforecited decrees constitutes impermissible encroachment on judicial prerogatives. It tends to render this Court inutile in a matter which under the Constitution is reserved to it for final determination.

REPUBLIC V. COURT OF APPEALS However, cases applying P.D. No. 42 and similar laws which have long become final may no longer be opened for enquiry.

JUST COMPENSATION IN LAND REFORM In a long line of cases, the Court has consistently ruled that compensation for property expropriated must be determined as of the time the expropriating authority takes possession thereof and not as of the institution of the proceedings. (REPUBLIC V. SARABIA)

Thus, although in an expropriation proceeding the court technically would still have the power to determine the just compensation for the property, following the applicable decrees, its task would be 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.
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But this is because normally the time of the taking coincides with the filing of the complaint for expropriation. The general rule, however, admits of an exception. Simply stated, the exception finds application where the owner would be given undue incremental advantages arising from the use to which the government devotes the property expropriated- as for instance, the extension of a main thoroughfare, which increased the value of the property after it, was taken but before expropriation petition was filed. (NPC V. LUCMAN IBRAHIM)

JUGALBOT V. COURT OF APPEALS Since land acquisition under either P.D. No. 27 and the Comprehensive Agrarian Reform Law is an extraordinary method of expropriating private property, the law must be strictly construed. Faithful compliance with legal provision especially those which relate to the procedure for acquisition of expropriated lands, e.g., the need for notice, should be observed.

LAND BANK V. DOMINGO MIAA V. RODRIGUEZ Thus where the government occupied a piece of private land for the extension of its airport runway but without expropriating it and after lapse of many years the owner seeks compensation and rental, for purposes of compensation the value of the land should be based on what it was worth at the time of 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. As a concept in the Bill of Rights, just compensation is defined as the fair or market valued of the property as between one who receives, and one who desires to sell. R.A. No. 6657 requires that just compensation should be the full and fair equivalent of the property taken from its owner by the expropriator, the equivalent being real, substantial, full and ample.

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 actually receiving the compensation. 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)

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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 Constitutional Commission reveal both adherence to traditional jurisprudence on the subject and adjustment to the demands of social justice. *Commissioner Bernas pointed out that that this would fine tune the meaning of just compensation in order to give substance and meaning to the 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 *yielding to Oples argument, Bernas withdrew his the courts. 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 reform, since expropriation in land reform is both an Court. Export Processing Zone v Dulay) 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 *another matter taken up by the Commission was determined by the proper court. 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 Regalados explanation, however, revealed that all in payment of just compensation. With just he wanted was what already obtains 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 Commissions 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
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is such a matter of great urgency that both the 1935 and 1973 Constitution already saw fit to formulate a special provision on expropriation of land for resale. The extent of this power, as presently understood, took a little while to get accepted. *the significance of expropriation of large landed estates may be gathered from the role land tenure had held in the political and social history of the country. One of the immediate causes of the revolt against Spain were the abuses connected with extensive land holdings of various religious corporations. So intense was the feeling of the Filipino leadership in this regard that one article of the Malolos Constitution said: ...all the buildings, properties, and other belongings possessed by the religious corporations in these islands will be understood as restored to the Filipino government. *after the transfer of sovereignty over the islands by the Treaty of Paris, this demand of the Filipino leadership was not forgotten and the American administration was confronted with the problem of winning Filipino corporation and at the same time reconciling Filipino demands with the terms of the Treaty of Paris which protected religious and property rights of persons and corporations.

the sale of bonds. In a large measure, therefore, the friar land question was solved without the need of the exercise of eminent domain powers. *The religious corporations, however, were not only holders of large landed estates. The encomienda system brought to the Philippines by the Spaniards created a big landlord class formed from aristocratic families who had served Spanish officialdom well. (footnote: The Spaniards took to the Philippines the encomienda system which they used in their American possessions. A large part of the land, and the best at that, was thus handed over with its natives to the ownership of the Catholic Church or to Spanish or half-caste families, who were termed Caciques. The natives who cultivated the encomiendas were not hired labourers, but remnants of small holders or inquilinos.

*and it is not disputed that the communist uprisings of the 1930s arose largely out of discontent over the inequitable distribution of land. The speeches and publications of socialist leaders which became the basis of prosecutions for seditious utterances in the 1930s sufficiently illustrate this fact. And the continuing effort of the government to remedy this 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 states 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 *Tafts belief that religious authorities were a categorical answer to Aranetas question; but willing to negotiate the sale of religious property implicit in the formers 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 martyrs 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 heros 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 Cuadernos 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
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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 ones 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 plaintiffs 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 familys 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. Cuadernos 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.
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misconstruing the real meaning of Article XIII, Section 4. The majority, he said, made two erroneous assumptions: 1. That Section 4, Article XIII, is an end in itself, when actually it is but one of the means chosen by the framers of the Constitution to attain social justice, amelioration and tranquillity; 2. that the constitutional policy is 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 Pablos 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 Guidos 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 *Clearly, then, the Guido and subsequent rulings equated public use with public welfare. But does this enlarged concept of public use, when applied to expropriation of land, require as a constant factor that the land be immense in size, or is it possible for public welfare to be served by the expropriation of a small tract of land?
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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 Montemayors 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 states 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 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 Fernandos 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. 7. Judicial Review Exercise of Power of Eminent Domain subject to judicial 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 have accepted their report and rendered judgment in accordance with their recommendations Page 93 of 103 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 (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 the legislative authority but by another 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 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
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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

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
-

Municipality of Meycauayan v. Intermediate Court of Appeals (1988) As early as City of Manila v. Chinese United States v. Welch (1946) Community of Manila (40 Phil. 349) this Court o Clear implication of the finality of legislative held that the foundation of the right to exercise judgment the power of eminent domain is genuine J. Black: We think that it is the function necessity and that necessity must be of a public of Congress to decide what type of taking character. Condemnation of private property is is for a public use, and that the agency justified only if it is for the public good and there authorized to do the taking may do so to is a genuine necessity of a public character. the full extent of its statutory authority. Cases involving expropriation of have for resale Consequently, the courts land the power to inquire into the legality of the exercise were for the most part a discussion whether theof the Philippine Jurisprudence authority of the courts right of eminent taking, exercised by thedomain and the Rural agencies like to determine to review the legislative judgment has never been whether Administration therefore Progress there is a genuine necessityTenure or Land seriously questioned Administration, satisfied the requirement of public Courts can look into the public character of the use. purpose of the taking by the government agencies other than the legislature NARRA v. Francisco (1960) When the legislature specified the purpose of the o FACTS: Involves RA no. 1266 (specifically authorized the National Resettlement and taking and singles out the property to be taken, can Rehabilitation Administration to the Courts review the judgment made by the expropriate Hacienda del Rosario situated in legislature?? Valdefuente, Cabanatuan City, for subdivision and resale to occupants Chinese community case contradictory
-

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)

answers American jurisprudence ambivalent judicial attitude to the question o Common Accepted American Rule the issue of public use is a judicial question

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CHALLENGE: The size of the land did not satisfy the Guido Rule o NARRA appealed to the obiter dictum in the Chinese Community Where the legislature has directly determined the necessity of appropriating private property for a particular public improvement at a specified location, the utility, necessity and expediency of the improvement and the suitable of the location are questions for the legislature to determine and the courts have no power to interfere and 8. Regulation versus taking. substitute their own discretion. Title to property transferred to the expropriating o COURT did not accept the argument But did not categorically rejected the authority clear case of compensable taking principle stated Principle involved entirely But it will be seen that... inappropriate, for the question now before the Court is not the necessity of Settled rule: the expropriation but the power or - Neither the acquisition of the title nor total authority to expropriate under Article XIII, destruction of value is essential to taking. Sec. 4, of the Constitution. The validity of It is in cases where title remains with the the statute directing the expropriation is private owner that inquiry must be made certainly a judicial question. whether the impairment of property right is IMPLICATION if the issue had been the merely regulation or already amounts to necessity of the expropriation, the Court compensable taking. might have upheld the argument Court could not even begin to consider the question of necessity because it felt constrained by the mechanistic land-size Guido test for public use which, as the Court was careful to not, while not unanimous, still stood unreversed. Police Power Power of Eminent 8. Does res judicata apply? Domain - When once the right to expropriate has been denied the states in specific case, it does not OBJECT: General Welfare mean that the state may not come back to the same property. Achieves object by Achieves object by The very nature of eminent domain, as an regulation taking inherent power of the State, dictates that the Scope of eminent domain plenary and (like police right to exercise the power be absolute and Property impaired by Property is taken power) can reach every form ofor res judicata the unfettered by prior judgment property which just compensation regulation State might need for public use required compensation not required
o

Impropriety of res judicata does apply to specific issue decided in a previous case e.g. Final judgment dismissing an expropriation suit on the ground that there was no prior offer precluded another suit raising the same issue; it cannot, however, bar the State or its agent from thereafter complying with this requirement, as prescribed by law, and subsequently exercising its power of eminent domain over the same property.

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Property Interest US v. Toribio (1915) o A statute regulating the slaughter of carabao for the purpose of conserving a adequate supply of draft animals was upheld as a legitimate exercise of police power and not a form of taking under eminent domain as to require compensation o American Doctrine on zoning ordinances was likewise adopted Seng Kee & Co. v. Earnshaw (1931) 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. People v. de Guzman (1987) 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 Compensable taking 1. Appropria ted and applied to some public purpose 2. Merely restricted: (because continued unrestricted use would be injurious to public welfare) 3. Destroyed (because continued existence of the property would be injurious to public interest)

NO Compensable taking

NO Compensable taking

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 Note: This case involves a statute authorizing the destruction of red cedar trees infested with rust

People v. Fajardo (1958) 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
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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 Fajardos 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

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 plaintiffs property below the navigable airspace resulting in the ruin of plaintiffs 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 o 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 NPCs 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."

- The establishment of easement is a form of compensable taking is illustrated in a number of American cases, all of which rest upon the owners 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)

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 latters 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.
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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.

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 plaintiffs 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 dominical rights of the owners (Familiara v. J.M. Tuason & Co.)

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

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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.

Such an action is not far different from zoning regulations although its economic impact on a piece of property might be more that that of mere zoning regulation.Factors for determination (whether action amounts to taking or mere regulation): economic impact of the regulation on the property the extent to w/c the regulation might interfere w/ investment expectations Penn Central Transportation Co. v. New York (1978) o o Ruled that the landmark law w/c did not interfere w/ the terminals 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

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 governments holding of the property.

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

When does classification of property into a historical landmark resulting in a limitation of its economic 10. EXPROPRIATION OF MUNICIPAL PROPERTY usefulness amount to compensable taking?

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In a set of cases involving the National Waterworks and Sewerage Authority (NAWASA), the Court unmasked an attempt to expropriate under the guise of exercising police power. A law was passed authorizing the transfer of municipal waterworks systems to the NAWASA. NAWASA understood the law to mean that it could take the waterworks system of Baguio City under the claim of exercising police power.

Congress has no absolute control. The municipality cannot be deprived of it without due process and payment of just compensation.

CITY OF BAGUIO V. NAWASA After finding that the waterworks system was not 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 said that the act did not authorize the confiscation nor appropriation of the property belonging to cities but merely directed that the waterworks belonging to municipal corporations be transferred to the NAWASA with a view to more efficient management. But the Act itself directed that the municipal corporation be paid with an equal value of the assets of the NAWASA.

While the principle itself is simple, its application has been complicated by a certain degree of confusion 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 municipal property is found in the Civil Code which says:

Art. 243. The property of provinces, cities, and municipalities id divided into property for public use and patrimonial property. Art. 424. Property for public use, in the provinces, cities, and municipalities, consist of the provincial roads, city streets, municipal streets, the squares, fountains, public waters, promenades, and public works for public service paid for by said provinces, cities, or municipalities.

All other property possessed by any of them is patrimonial and shall be governed by this Code, The same ruling requiring the NAWASA to pay for without prejudice to the provisions of special laws. the value of the waterworks system of municipal corporations was followed in subsequent cases. CEBU CITY V. NAWASA The series of NAWASA cases underscores the need Interpreting this provision in the NAWASA cases, for clarifying the distinction between patrimonial with reference to municipal waterworks, the property of a municipal corporation and property Supreme Court said: Thus the term public works which it holds for public use. 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 and promenades which are used freely by all, OF ZAMBOANGA 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
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water to the inhabitants for profit is a corporate function of the municipality.

SALAS V. JARENCIO

This involved such type of land. When R.A. No. 4118 PROVINCE OF ZAMBOANGA DEL NORTE V. CITY converted the land, which was situated in Manila, OF ZAMBOANGA into alienable land of the state and provided for its subdivision and resale to the occupants, the City of This Zamboanga del Norte case pointed to the Manila objected to the statute as a deprivation of existence of another line of cases which classified municipal property without proper compensation. property according to the use to which it is devoted. 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, concluded: made open to the public.

The Court concluded: We are more inclined to uphold this latter view. The controversy here is more along the domains of the Law of Municipality Corporations State v. Province- than along that of Civil Law. Moreover, this Court is not inclined to hold that municipal property held and devoted to public service is in the same category as ordinary private property. The consequences are dire. As ordinary private properties, they can be levied upon and attached. They can even be acquired through adverse possession- all these to the detriment of the local community. Lastly, the classification of properties other than those for public use in the municipalities as patrimonial under Art. 424 of the Civil Code is without prejudice to the provisions of special laws. For purposes of this article, the 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 public should prevail over the Civil Code classification in this particular case.

It may, therefore, be laid down as a general rule that regardless of the source or classification of land in the po9ssession of a municipality, excepting those acquired with its own funds in its private or corporate capacity, such property is held in trust for the State for the benefit of its inhabitants, whether it be for governmental or proprietary purposes. It holds such lands subject to the paramount power of the legislature to dispose of the same, for after all it owes its creation to it as an agent for the performance of a part of its public work, the municipality being but a subdivision or instrumentality thereof for purposes of local administration. Accordingly, the legal situation is the same as if the State itself holds the property and puts it to a different use.

11. EXPROPRIATION GOVERNMENT

BY

MUNICIPAL

Another type of municipal property is the legua communal or communal lands of a town. These came into existence upon the establishment of a town or pueblo under Spain. The Spanish Law provided that the usufruct of a portion of the public domain adjoining municipal territory might be granted by the government for communal purposes. The ultimate title, however, remained with the sovereign.

HEIRS OF SUGUITAN MANDALUYONG

V.

CITY

OF

The power of eminent domain has been given to local governments by the Local Government Code. The essential requisites are that it must be exercised for public use and with just compensation and after a valid offer. In addition, it must be done on the strength of a legislative act of the local government, that is, an ordinance. It cannot be done merely on the strength of resolution. A resolution is
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not a legislative act. It is merely a declaration of the between the owners of the building and the city, sentiment or opinion of a lawmaking body on a there is no reason for the expropriation. specific matter. 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.

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

Thus, a local government may not expropriate on The US SC allowed the condemnation saying that the strength merely of a sangunian resolution alone. since there can be no right to restrain by contact the power of eminent domain, it must also of necessity follow that any contract by which it was sought to accomplish that result would be 12. EMINENT DOMAIN AND CONTRACTS inefficacious for want of power. In one of the earlier cases decided during the 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,
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