SEARCHES AND SEIZURES

ARTICLE 3, 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 upon probable cause to be determined
personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the
place to be searched and the persons or things to be seized.
Scope:

Available to all persons, including

aliens whether accused of a crime
or not.
Available to artificial persons like
corporations (But they might be
required by the state to open their
books of account in the exercise of
police power or power of taxation)
Right against unreasonable
searches and seizure is personal
and may be invoked only by the
person entitled to it
Requisites of valid warrant:
1. It must be based on Probable
cause
2. The probable cause must be
personally determined by the
judge
3. The determination must be made
after examination under oath or
affirmation of the complaint and
the witnesses he may produce
4. It must particularly describe the
place to be searched and the
persons or things to be seized.
Probable Cause
Such facts and circumstances
antecedent to the issuance of the
warrant that in themselves is sufficient
to induce a cautious man to rely on them
and act in pursuance thereof.
Rule 126, Section 3 of the Rules of
Court
Corollary to the requirement of probable

Burgos v Chief of Staf

Probable cause for a search is defined as
such facts and circumstances which
would lead a reasonably discreet
prudent man to believe that an offnse
has been committed and that the objects
sought in connection with the offense
are in athe place sought to be searched
Stonehill v Diokno

cause is the rule that the warrant must

refer to only one specific ofense
Probable cause is concerned with
probability, not absolute or even moral
certainty.
Finding of probable cause does not
ensure a conviction or a conclusive
finding beyond reasonable doubt since
the accused has yet to present evidence
to prove his innocence and to rebut the
finding of the probable cause.
Determination of probable cause
Shall be made personally by the
judge

The word judge is interpreted in

generic sense and includes judges
of all levels

Rule 112, Section 6 of the Rules of court:

a judge may issue a warrant of arrest
only if he is satisfied from the
investigation conducted by him on the
prosecutor that there is probable cause.
Requisites:
1. The judge must before issuing the
warrant, personally examine the
complainant and the witnesses in the
form of searching questions and answers
2. The examination must be under oath
3. The examination must be in writing
4. The complainant and the witnesses
must be examined on facts personally
known to them
5. The judge must attach to the record
the sworn statements of the complainant
and the witnesses together with the
affidavit submitted.
The judge must not rely alone on
the recommendation of the
prosecutor but must
independently arrive at his own

In other words, no specific offense had

been alleged in said applications. The
averments thereof with respect to the
offense committed were abstract. As a
consequence, it was impossible for the
judges who issued the warrants to have
found the existence of probable cause,
for the sane presupposes the
introduction of competent proof that the
party against whom ut is sought has
performed particular acts, committed
specific omissions, violating a given
provision of our criminal law
Ho v People
Objectives of the prosecutor:
determines whether there is reasonable
ground to believe that the accused is
guilty and should be held for trial.
Objective of the judge: determines if
a warrant of arrest should be issued to
place the accused immediate custody so
as not to frustrate the ends of justice.

conclusions based not only on the

bare report of the prosecutor but
also on other relevant documents.

Warrant of arrest may be issued

by administrative authorities only
for the purpose of carrying out a
final finding of a violation of law,
like an order of deportation or an
order of contempt and not for the
sole purpose of investigation or
prosecution.

Requirement of probable cause is,

strictly speaking, not applicable to
deportation proceedings, which
are not criminal in nature.

Examination of applicant
Rule 126, section 4 of the rules of court:
The judge before issuing the warrant,
must personally examine in the form of
searching questions and answers, in
writing and under oath the complainant
and any witnesses he may produce on
facts personally known to them, and
attach to the record their sworn
statements together with any affidavits
submitted"--- the same requirement is to
be observed in the issuance of warrant
of arrest.
The evidence differed by the
complainant and his witnesses should be
based on their own personal knowledge
and not on mere information of belief.
Not allowed:
Hearsay- It must be based on
mere information or belief.
Hearsay are those facts which a
person derives not from his own
perception but from perception of
others

Reliable information e.g. "correct

to the best of his knowledge and

belief"(Alvarez v CFI)

"Evidence gathered and collated

by our unit"-- the constitution
requires no less than personal
knowledge by the complainant or
his witnesses of the facts upon
which the issuance of a sear h
warrant may be justified (Burgos v
Chief of staff)

Mere conclusions and not positive

statements of particular facts
within their personal knowledge

Oath- Any form of attestation by which a

party signifies that he is bound in
conscience to perform an act faithfully
and truthfully; and it is sometimes
defined as an outward pledge given by
the person taking it that his attestation
or promise is made under an immediate
sense of responsibility to God ( Alvarez v
CFI)
The personal examination must not be
routinary or pro forma, but must be
probing and exhaustive. The purpose of
this rule is to satisfy the examining judge
as to the existence of probable cause.
( Roan v Gonzales)
When are witnesses not necessary?
- When the affidavit of the applicant or
complainant contains sufficient facts
within his personal and direct
knowledge, it is sufficient if the judge is
satisfied that there exists probable
cause. However, if the applicants
personal knowledge is mere
hearsay, the affidavit of one or more
witnesses is necessary(Alvarez v CFI)
Particularity of description
The constitution requires that the place
to be searched or the person or things to
be seized be described with such

Alvarez v CFI
The search and seizure of books,
documents, receipts, lists chits, and
other papers used by him in connection

particularity to enable the person

servant the warrant to identify
them.
Person to be seized must be
identified by name.
Without name or with the name in blank
such that it can be enforced to against
any person or john Doe or Richard Roe
or whose other true name is to your
complainant unknown =VOID
Premises sought to be searched
Description of premises
A description of a place to be
searched is sufficient if the officer
with the warrant can, with
reasonable effort, ascertain and
identify the place intended.
Articles to be searched
Their description could be general, it is
not required that a technical description
be given
Sufficiency of the description of the
object is closely related with the
sufficient particularity of the avements
of the offense
PROPERTIES SUBJECT TO SEIZURE
1. Subject of the offense
2. Stolen or embezzeled and other
proceeds or fruits of the offense
3. Use or intended to bw used as the
means of committing an offense
*Search and seizure made only for the
purpose of obtaining evidence to be
used against the accused, the warrant is
unlawful as it would violate the
constitutional right against selfincrimination.
Searches for fishing expedition
A search warrant is not a sweeping
authority empowering a raiding party to

with his activities as money-lender,

charging a usurious interest, in violation
of law was held valid on the ground that
no more adequate and detailed
description could have been given

People v Marti
Right against unreasonable operates
only against the state not when the
search is made by a private person.
Steele v U.S. 267 US 498
A description of the placw to be
searched is sufficient if the officer with
the warrant can, with reasonable effort,
ascertain and identify the place
intended.
Bache & Co v Ruiz
A search warrant may be said to
particularly describe the things to be
seized when the description therein is as
specific as the circumstances will
ordinarily allow and by which the
warrant officer may be guided in making
the search and seizure.
Stonehill v Diokno
The evidence obtained even though
contrabaned can not be used if it was
obtained in unreasonable search and
seizures.(Exclusionary Rule)
Bagalihog v Fernandez and Roan v
Gonzales
The illegally seized item shall be
returned if it is not a prohibited object. If
it is subject of litigation, it will remain
custodia legis until the case is
terminated.
Del Rosario v People
Seizure is limited to those items
particularly described in a valid search

undertake a fishing expedition to seize

and confiscate any and all kinds of
evidence on articles relating to a crime.
(people v del rosario) Recovery of seized articles
Should there be no ensuing criminal
prosecution in which the personal
property seized is used as evidence, its
return to the person from whom it was
taken, or to the person who is entitled to
its possession is but a matter of course,
except if it is contrabaned or illegal per
se. A proper court may order the return
of property held solely as evidenced
should the government be unreasonably
delayed in bringing a criminal
prosecution. The order for the disposition
of such property can be made only when
the case is finally terminated. ( PDEA v
Brodett and Joseph)

warrant. Searching officers are without

discretion regarding what articles they
shall seize. Evidence seized on the
occasion of such an unreasonable search
and seizure is tainted and excluded for
being the proverbial "fruit of poisonous
tree". In the language of the
fundamental law, it shall be
inadmissable evidence for any purpose
in the proceeding.
Even if the warrant was decided to be
illegal, The articles seized in the
premises of respondent Yu Cua Sio show
that he was in possession of these
articles mentioned in the application for
search warrant and in the search warrant
itself. Possession of said fake stamps is
illegal and the same should not be
returned to respondent Yu Cua
Sio(People v Marcos)

Search Warrant

Warrant of Arrest
-Taking into custody a person in
order to be subject to interview
Probable cause(WON the offense was
committed)
Such facts and circumstances which
would lead a reasonably discrete and
prudent man to believe that an offense
has been committed by the person
sought to be arrested. ( Webb v De Leon
Determination of probable cause
personally by the judge
The judge is not required to personally
examine the complainant and the
witnesses. Following established doctrine
and procedure, he shall:
A. Personally evaluate the report and the
supporting documents submitted by the
fiscal regarding the existence of
probable cause and, on the basis
thereof, issue a warrant of arrest; or
B. If on the basis thereof he finds no
probable cause, he may disregard the

Probable cause
Such facts ans circumstances which
would lead a reasonably discreet and
prudent man to believe that an offense
has to been committed And That the
objects sought in connection with the
offense are in the place sought to be
searched(Burgos v Chief of Staff
Determination of probable cause
personally by the judge
The determination of probable cause
depends to a large extent upon the
finding /opinion of the judge who
conducted the required examination of
the applicant and the witnesses (Kho v
judge Makalintal)

Description of property
The description of property to be seized
need not to be technically accurate nor
necessarily precise, and its nature will
necessarily vary according to whether
the identity of the property or its
character is a matter of concern;it is
required to be specific only in so far as
the circumstances will allow(Kho v Judge
Makalintal)
Procedure:
Same as warrant of arrest except
that: in a search warrant the judge cant
rely on the findings of the fiscal there
must be a personal examination by a
judge on the witnesses or pieces of
evidence.
*from atty Dacanay's lecture

Warrantless searches, when valid

1. When right has been voluntarily
waived
2. A person caught in flagrante delicto as
an incident to a lawful arrest, provided
search is contemporaneous to arrest and
within permissible area of search
3. Searches of vessel and aircraft for
violation of fishery, immigration and
customs laws
4. Searches of automobiles at borders or
constructive borders for violating of
immigration and smuggling laws.
Custom searches however are not
available in dwelling places
5. Inspection of buildings and other
premises for the enforcement of fire,
sanitary and building regulation.
6. Visual search at checkpoints

fiscal's report and require the submission

of supporting affidavits of witnesses to
aid him in arriving at a conclusion as to
the existence of probable cause (Soliven
v Makasiar)
Description of property
"General Warrants" are proscribed and
unconstitutional (Nolasco v Puno) but a
john doe Warrant( wherevthe tru name
of the person to be atrested is unknown)
satisfies the constitutional requirement if
there is some descriptio personae which
will enable the officer to identify the
accused ( Pangandarnan v Casar)
Procedure:
Criminal complaint fron the police>
Prosecutors Office( for the determination
of probable causr)> submission of
subpoena (Respondent indeed commit
the crime) > Court- Warrant of arrest
( the judge will review the findings of the
Fiscal.
*from atty Dacanay's lecture
Warrantless arrest when valid
1. When, in his presence, the person to
be arrested has committed, is actually
committing, or is attempting to commit
an offense;(In flagrante Delicto)
2. When an offense has just been
committed and he has probable
cause to believe based on personal
knowledge of facts or circumstances
that the person to be arrested has
committed it;(hot pursuit)
3. When the person to be arrested
is a prisoner who has escaped from
a penal establishment or place
where he is serving final judgment or
is temporarily confined while his case is
pending, or has escaped while being

7. Conduct of " aerial target zoning" and

" saturation drive" in the of military
powers of the president
8. When there is a genuine reason to
"stop-and-frisk" in the light of the police
officer's experience and surrounding
conditions to warrant a belief that the
person detained has weapons concealed.
9. Where prohibited articles in plain view
10. Doctrine of extingent circumstances
- under and exigency of the moment
where a search warrant should be
lawfully dispensed with
Cases:
Valmonte v. De Villa checkpoints
Section 2 is a personal right invocable
only by those whose rights have been
infringed or threatened to be infringed;
reasonableness is determined by a fixed
formula but from the circumstances of
the case; not all searches and seizures
are not allowed; between the inherent
right of the state to protect its existence
and promote public welfare and an
individual; right against warrantless
search which was reasonably
conductedm the former should prevail
B. Requisites of a Valid Warrant
Alvarez v. CFI of Tayabas definition of a
search warrant an order in writing,
issued in the name of the People of the
Philippine Islands, signed by a judge or
justice of peace and directed to a peace
officer commanding him to search for
personal property and bring it before
court, OATH - any form of
attestation that a party signifies that he
is bound by conscience to perform an
act faithfully or truthfully
People v. CA the general rule is that
search warrants must be served during

transferred from one confinement to

another
4 Membership in organizations like NPA
is a continuing offense, thus, a person
can be arrested anytime(Umil v Ramos)
5. When the right is waived by the
person arrested, provided he knew of
such right and knowingly decided not to
invoke it.
Application for bail not a bar to question
validity of arrest.
Administrative arrest
GR: only the judge has the power to
issue a warrant after the proper
procedure has been fully taken.
Exception:
A. A commissioner of Immigration
and Deportation may issue
warrants to carry out a final
finding of a violation l, either by
an executive or legislative officer
or agency duly authorized for the
purpose. B. Warrant of arrest may
be issued by administrative
authorities only for the purpose of
carrying out. Final finding of a
violation of law and not for the
sole purpose of investigation or
prosecution. It may be issued only
after the proceeding has taken
place as when there is already a
final decision of the administrative
authorities

the daytime (protect the public from the

abrasiveness of official intrusions).
Exception: a search at any reasonable
hour
of day or night may be made when the
application asserts that the property in
on the person or place ordered to be
searched. Absence of abuse of
discretion, a search conducted at night
where so allowed is not improper
People v. Veloso parliamentary club JOHN DOE WARRANTS Valid IF the best
description possible is given in the arrest
warrant it must be sufficient to indicate
clearly on whom it is to be served by
stating his occupation, personal
appearance or peculiarities, place of
residence or other circumstances which
he may be identified
Microsoft v. Maxicorp software
probable cause 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; OATH must refer
to the truth of the facts WITHIN THE
PERSONAL KNOLEDGE OF THE
PETITIONER OR HIS WITNESSES;
probable cause deals with probability
and not absolute certainty
Burgos Sr. v. Chief of Staff, AFP
Metropolitan Mail and We Forum
typographical error in specifying the
address to be searched not sufficient to
invalidate search warrant where the
address intended appears on the face of
the warrant; probable cause such facts
or circumstances which would lead a
reasonably prudent man to believe that
an offense has been committed and the

objects sought in connection with the

offense are in the place sought to be
searched
People v. CA Abigails Variety Store
VOID warrant the claim that the place
actually searched although not the one
specified in the warrant is exactly what
they had in view when they applied for
the warrant is unacceptable. What is
material in determining the validity of
the warrant is the place stated in the
warrant, not the one they had in their
thoughts; particularization of description
may properly be done only by the judge
and only in the warrant itself
Corro v. Lising Philippine Times
conclusions of law of military officers will
not satisfy probable cause requirement
for issuance of search warrants
Soliven v. Makasiar The judge is not
required to personally examine the
complainant and his witnesses. He shall:
1) personally evaluate the report and the
supporting documents submitted by the
fiscal regarding the existence of
probable cause and on the basis thereof,
issue a warrant of arrest OR 2) if on the
basis thereof, he does not find 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 of the
existence of probable cause
Lim Sr. v. Felix certification by the
fiscal of the existence of probable cause
does not bind the judge. Preliminary
inquiry determines probable cause for
the issuance of a search warrant
(prosecutor); preliminary examination
(judge) - investigation for the

determination of a probable cause for

the issuance of a warrant of arrest;
preliminary investigation proper
ascertains whether the offender should
be held for trial or be released.
Yao Sr. v. People GASUL and
SHELLANE v. MASAGANA examination of complainant and
witnesses must be probing and
exhaustive not merely routinary,
general, peripheral, perfunctory or pro
forma; law,does not require that the
thihgs to be seized should be described
in very precise and minute details.
C. Warrantless Searches and Seizures
Nolasco v. Pano articles seized by void
warrants should be retuned to its owners
Papa v. Mago Customs Search search
warrant not necessary except if the
place to be searched is a dwelling or
house Tariff and Customs Code
People v. CFI of Rizal search of moving
vehicle Carroll doctrine search of
moving vehicles or automobiles no
search warrant needed
People. V. Lo Ho Wing - exception to the
issuance of search warrant: 1) search
incidental to a lawful arrest; 2) search of
moving vehicle; 3) seizure of evidence in
plain view
People v. Evaristo evidence in plain
view Harris v. Coolidge, Coolidge v.
New Hampshire no search warrant
needed; Malacat v. CA valid waiver
must be made in writing and in the
presence of
counsel; search incidental to a lawful
arrest v. stop and frisk Terry Case

probable cause is not required to

conduct stop and frisk but mere
suspicion or a hunch will not validate it.
A genuine reason must exist.
People v. De Gracia Eurocar Sales
Office crime was in fact being
committed search incidental to lawful
arrest valid
People v. Johnson inspection at airports
Persons may lose the protection of the
search and seizure clause by exposure of
their persons or property to the public in
a manner reflecting lack of subjective
expectation of privacy
David v. Macapagal-Arroyo PP 1017
case doctrines same as the ones above
(related topics: freedom of expression;
freedom to peaceably assemble)
People v. Nuevas illegal possession of
marijuana - in cases of searches
incidental to a lawful arrest, the arrest
must precede the search; warrantless
search, when valid: 1) incidental to
lawful arrest; 2) evidence in plain view
[a) valid prior intrusion, police are legally
present in the pursuit of their
official duties, b) evidence was
inadvertently discovered, c) evidence
immediately apparent, d) plain view
justified mere seizure with =out further
search]; 3) search of moving vehicle; 4)
consented warrantless search; 5)
customs search; 6) stop and frisk; 7)
exigent and emergency circumstances
D. Searches and seizures of whatever
nature for any purpose
E. Warrantless Arrests

Umil v. Ramos subversion a continuing

offense - arrest without a warrant is
justified if the person arrested in caught
in flagrante delicto
People v. Aminudin - M/V Wilcon;
marijuana not caught in flagrante
delicto; search was unreasonable;
evidence inadmissible
Harvey v. Defensor-Santiago
pedophiles the rights granted in
Section 2 are available to all persons
including aliens, whether accused of a
crime or not People v. Mengote
suspicious man outside a person may
not be stopped and frisked in broad
daylight on a bust street on a mere
unexplained suspicion
Posadas v. Ombudsan Sigma Rho v.
Scintilla Juris Arrest made without a
valid warrant: Rule 113, Section 5 of the
Rules of Court when in the presence of
a police officer or a private individual: 1)
the person arrested has committed, is
actually committing, or attempting to
commit an offense; 2) when an offense
has actually been committed, and he
has personal knowledge of the facts
indicating that the
person to be arrested commited it; 3)
when the person arrested is a prisoner
who has escaped from a penal
establishment or place where his is
serving final or temporary judgment
(pending), escaped while being
transferred
Ladlad v. Velasco imprisoned by PP
1017; rebellion/sedition doctrine same
as above and People v. De Gracia

PRIVACY OF COMMUNICATION AND CORRESPONDENCE

Art 3 Section3(1) The privacy of communication and correspondence shall be
inviolable except upon lawful order of the court, or when public safety or order
requires otherwise as prescribed by law.
Requisites of existence of
People v. Marti package bound for
privacy right
Switzerland The Bill of Rights is not
1. A person has exhibited an
meant to be invoked against act of
actual (subjective) expectation of
private individuals. It is directed against
privacy.
the government and its agencies tasked
2. The expectation be one that
with the enforcement of the law. The
society is prepared to recognize as constitutional against unreasonable
reasonable (objective)
searches and seizures cannot be
extended to acts committed by a private
individual.
B. Waiver of Rights
Veroy v. Layague search of rebels in a
house Permission was granted by Veroy
to enter the house but only to ascertain
the presence of rebel soldiers. Where
permission to enter a residence was
given,
it is illegal to search the rooms therein
and seize firearms without as search
warrant.
Okabe v. Gutierrez estafa case An
application for or admission to bail shall
not bar the accused from challenging the
validity of his arrest or the legality of the
warrant issued therefore.. An application
for bail SHALL NOT BE considered as a
waiver of rights. A valid waiver,
requisites. 1) rights must exist; 2) there
must be clear and convincing proof that
there was an actual intention to
relinquish the right
D. Privacy of Bank Accounts
Marquez v. Desierto secrecy of bank
deposits exceptions: 1) depositor
consents in writing; 2) subject of an
impeachment case; 3) by court order in

cases of bribery and dereliction by public

officials, 4) deposit is subject of
litigation; 5) unexplained wealth
Privacy of Communication
Roxas v. Zuzuaregui contempt of the
Supreme Court the letter ceased to be
private when Roxas furnished the letter
to the all the justices and not just to the
one whom it is addressed
Forms of correspondence and
communication covered:
1. Letters
2. Messages
3. Telephone calls
4. Telegrams
5. Other analogous to the
foregoing
Intrusion, when allowed :
1. By lawful order of the court
2. Public safety or public order requires
otherwise, as may be provided.
Grounds to allow intrusion
The text does not give any ground. It is
submitted requirement of probable
cause in section 3, ArticleI III should be
followed
Anti wire tapping Act (Ra 4200)
Prohibits any person, not authorized by
all the parties to any private
communication or spoken word to tap
any wire or cable, or any other device or
arrangement to secretly overhear,
intercept or record the same, or to
communicate the content thereof to any
other person.
NOTES: It is illegal for any person not
authorized by all parties to any
communictaion by means of twpe
recorder. The law does not make any
distinction, and such, RA 4200 may be
violated even by a party to the
communications.

Gaanan v intermediate Appellate

Court
Telephone extension was not among the
devices covered by this law and that the
use of that instrument to listen in on a
private conversation was not prohibited
as a "tap".
Navarro v. CA
police complaint gone bad where the
exchange between two persons is not
private, the tape recording is not
prohibited
Salcedo-Ordonez v. CA
annulment with damages husband is

A telephone extension line is not among

the devices covered by RA 4200
The law prohibits the overhearing,
intercepting, or recording of private
comunications but not those whichare
public in character
Unauthorized tape recordings of
telephone conversation are not
admissible
Right to privacy of detainees
The right to privacy of those detained is
subject to Section 4 of RA 7438,stating in
part that any security officer with
custodial responsibility over a detainee
may undertake such measures
reasonable to secure his safety and
prevent his escape. By the very fact of
their detention, pre-trial detainees and
convicted prisoners have a diminished
expectation of privacy rights.
Limitations under Human Security Act
( RA 9372)
The authorities may, upon a written
order of the court of appeals, listen to,
intercept, and record, with the use of
any mode, form, kind or type of
electronic or other surveillance
equipment or intercepting and tracking
devices or with the use of any otheer
suitable ways and means for that
purpose, any communication, message,
conversation, discussion or spoken or
written words between members of
terroristgroup as defined in the Human
Security Act of 2007. Provided, that the
surveillance, interception and recording
of communication between lawyers and
clients, doctors and patients, journalists
and their sources and confidential
business correspondence shall not be
authorized.
Examination of letters and sealed
packages

cheating on me case Unauthorized

tape recordings of telephone
conversations not admissible

US Supreme Court: Letters and sealed

packages in the mails may be examined
only as to their external appearance and
weight and may not be opened except in
accordance with the constitutional
requirements of search and seizure.
Writ of Habeas Data
Under Section 1 of A.M. No. 08-1-16-SC,
the writ whose habead data is a remedy
available to any person whose right to
privacy in life, liberty or security is
violated or threatened by an unlawful act
or omission of a public official or
employee, or of a private individual or
entity engaged in the gathering,
collecting or storing of data or
information regarding the person, family,
home and correspondence of the
aggrieved party.
It is intended to insure the human right
to privacy by requiring the respondent to
produce the necessary information to
locate the missing person or such data
about him that have been gathered in
secret to support violation of his
constitutional rights or worse, has been
salvaged without benefit of a lawful trial.
The writ may also be sought to secure
destruction of such secret information
gathered in violation of the person's
right to privacy to justify summary
action against him by the government or
any private entity.

FREEDOM OF EXPRESSION
Article III Section 4
No law shall be passed abridging the freedom of speech, of expression, or of the
press, or the right of the people peaceably to assemble and petition the
government for redress of grievances.
Freedom of expression includes:
Chavez v Gonzales
1. Free speech and Free press
Department of Justice (DOJ) Secretary

2. Freedom of Assembly
3. Freedom of petition
4. Freedom of Religion
5. Right of association or the right to
form association,
6. Right to Religious Freedom
7. Right to be silent (cruz)
Elements/ aspects of freedom of
expression
1. Freedom from censorship or prior
restraint
- refers to official governemental
restrictions on the press or other forms
of expression in advance of actual
publication or dissemination.
-even before the speech is made it is
prohibited(Atty. Dakanay)
-Prior restraint refers to official
governmental restrictions on the press
or other forms of expression in advance
of actual publication or dissemination.
(Chavez v Gonzales)
Examples of prior restraint
A. System licensing administered by an
executive officer
B. Judicial prior restraint- Injunction
against publication
C. License taxes measured by gross
receipts for the privilege of engaging in
the business of advertising in any
newspaper
Exceptions( Subjects where prior
restraint is permitted)
A. Movies,television and radio broadcast
censorship in view of its access to
numerous people, including the young
who must be insulted from the
prejudicial effects of unprotected speech
B. Pornography
C. False or misleading Commercial
Statement
D. Advocacy of of imminent lawless
action
E. Press statement made by persons, for
and on behalf of the government,
uttered while in the exercise of their

Raul Gonzales warned reporters that

those who had copies of the compact
disc (CD) and those broadcasting or
publishing its contents could be held
liable under the Anti-Wiretapping Act. He
also stated that persons possessing or
airing said tapes were committing a
continuing offense, subject to arrest by
anybody who had personal knowledge if
the crime was committed or was being
committed in their presence.
Ruling: Freedom from prior restraint is
largely freedom from government
censorship of publications, whatever the
form of censorship and regardless of
whether it is wielded by the executive
legislative or judicial branch of
government.
Iglesia ni cristo v CA
Issue: Whether the MTRCB had the
power to review the petitioners
programs and clear them for showing on
television and, assuming it had whether
it gravely abused in prohibiting their
exhibition as x rated material.
Held: The majority of the court held for
the board on the first issue but found
that it should not have banned the
telecast of the programs because they
did not attack but merely criticized the
other religions in the exercise by the INC
of its freedom of expression and religion
such criticism didn't create clear and
present dangrr requiring prior restraint
of the State.
Primicias v Fugoso
The mayor of Manila sought indirectly to
mizzle the opposition party by denying
its application for a permit to hold a
public meeting at Plaza Miranda. The SC
ordered the permit issued holding that
the respondent could only reasonably
regulate, not absolutely prohibit, the use
of public faces for the purpose indicated.

official functions
F. Danger to national security
*right of impartial trial of accused
prevails over freedom of press

Distinction of Restraint
Content-Based Regulations(Chavez v
Gonzales)
content-based restraint or censorship,
i.e., the restriction is based on the
subject matter of the utterance or
speech.
a governmental action that restricts
freedom of speech or of the press based
on content is given the strictest scrutiny
in light of its inherent and invasive
impact. Only when the challenged act
has overcome the clear and present
danger rule will it pass constitutional
muster, 65 with the government having
the burden of overcoming the presumed
unconstitutionality.
Unless the government can overthrow
this presumption, the content-based
restraint will be struck down
content-based restrictions, the
government must also show the type of
harm the speech sought to be restrained
would bring about especially the
gravity and the imminence of the
threatened harm otherwise the prior
restraint will be invalid. Prior restraint on
speech based on its content cannot be
justified by hypothetical fears, "but only
by showing a substantive and imminent
evil that has taken the life of a reality
already on ground."
bears a heavy presumption of invalidity
and is measured against the clear and
present danger rule

Contents neutral Regulation (Chavez

v Gonzales)
merely concerned with the incidents of
the speech, or one that merely controls
the time, place or manner, and under
well defined standards(Chavez v
Gonzales)
only a substantial governmental interest
is required for its validity. Because
regulations of this type are not designed
to suppress any particular message,
they are not subject to the strictest form
of judicial scrutiny but an intermediate
approach somewhere between the
mere rationality that is required of any
other law and the compelling interest
standard applied to content-based
restrictions. The test is called
intermediate because the Court will not
merely rubberstamp the validity of a law
but also require that the restrictions be
narrowly-tailored to promote an
important or significant governmental
interest that is unrelated to the
suppression of expression. The
intermediate approach has been
formulated in this manner:
A governmental regulation is
sufficiently justified if it is within
the constitutional power of the
Government, if it furthers an
important or substantial
governmental interest; if the
governmental interest is unrelated
to the suppression of free
expression; and if the incident

restriction on alleged [freedom of

speech & expression] is no greater
than is essential to the
furtherance of that interest.
subjected to an intermediate review.
(Memory Aide-Osmena v COMELEC)
Restraint is aimed at the message or
idea of the expression, "distort public
debate,have improper motivation and
are usually imposed because of fear of
how people will react to a particular
speech.
Test of validity
Strict scrutiny test
Challenged act must overcome the clear
and present rule to be valid
Application
A rule such as that involved in Sanidad v
COMELEC prohibiting
columnist,commentators and
announcers for campaigning either for or
against an issue in a plebiscite must
have a compelling reason to support it,
or it will not muster under strict scrutiny.

Freedom from subsequent

punishment
-limitation on the power of the state to
impose a punishment after publication or
dissemination
Scope:Speech, expression and press
include every form of expression,
whether oral,written,tape or disc
recorded. It also includes movies as well
as symbolic speechsuch as the wearing
of an arm band as symbol of protest, as
well as peaceful picketing
The constitution guarantees the liberty
to utter what is in his mind and also

Restraint aims to regulate the time,

place or manner of the expression in
public places without any restraint on
the content of the expresion
Test of validity
Intermediate approach: A government
regulation is justified if
1. If it is within the constitutional power
of the government
2. It furthers an important substabtial
government interest.
3. The government interest is unrelated
to the suppression of free expression
4. The incident restriction on alleged
freedom of speech and expression is no
greater than is essential to the
furtherance of that interest
Only a substantial government interest is
required for its validity
Application
Regulation of time,place and manner of
holding public assembles under BP Blg.
880,Public assembly act of 1985

guatantees him the liberty not to utter

what is not in his mind.
The freedom also includes the right to an
audience, in the sense that the state
cannot prohibit the people from hearing
what a person has to say, whatever
maybe the quality of his thoughts.
Availability
Athe constitutional right guaranteeing
the freedom of expression is available
only against government intrusion. This
is appareng in the provision since it says
"no law" shall be passed abridging the
freedom.
However, an action for damages
pursuant to Article32 of the Civil Code
can be raised by an aggrieved party
against another private individual. A
violation of the Bill of Rights precisely as
a constitutional guarantee can be done
only by public officials. But almost all
these liberties are also guaranteed by
Article32 of the civil code thus making
private violations actionable even if the
violation does not have a constitutional
consequence (Silahis International Hotel
v Soluta)
Test for valid government
interference to freedom of
expression
1 the clear and present danger rule
which rests on the premise that speech
may be restrained because there is
substantial danger that the speech will
likely lead to an evil the government has
a right to prevent. This rule requires that
the evil consequences sought to be
prevented must be substantive,
"extremely serious and the degree of
imminence extremely high."(Chavez v
Gonzales)
When words are used in such
circumstance and on such nature as to

NAVARRO V. VILLEGAS - Sunken

Gardens as alternative to Plaza Miranda The Mayor cannot be compelled to issue
the permit. A permit should recognize
the right of the applicants to hold their
assembly at a public place of their
choice, another place may be designated
by the licensing
authority if it be shown that a clear and
present danger of a substantive evil if no
change was made.
JBL REYES V. MAYOR BAGATSING - a
peaceful march and rally from Luneta
park to the gates of the US Embassy. -

create a clear and present danger that

will bring about substantive evil that the
state has a right to prevent
A.Clear-casual connecting eith the
danger of the substantive evil arising
from the utterance questioned
B.Present- time element; identified with
imminent and immediate danger,the
danger must not only be probable but
very likely inevitable
-proximity;danger and substantive evil
created by the speech. The evil may be
upheld by the state

2. the dangerous tendency doctrine

which permits limitations on speech
once a rational connection has been
established between the speech
restrained and the danger contemplated;
(Chavez v Gonzales)
A person could be punished for words
uttered or for ideas expressed which
create a dangerous tendency, or which

(1) The applicants for a permit to hold an

assembly should inform the licensing
authority of the date, the public place
where and the time when it will take
place. (2) If it were a private place, only
the consent of the owner or the one
entitled to its legal possession is
required. (3) Application for permit
should be filed well ahead in time to
enable the public official concerned to
appraise whether there may be valid
objections to the grant but at another
place. It is an indispensable condition to
such refusal or modification that the
clear and present danger test be the
standard for the decision reached. If he
is of the view that there is such
imminent and grave danger of a
substantive evil, the applicants must be
heard on the matter. (4) Decision of the
licensing authority must be transmitted
to the applicants at the earliest
opportunity.
MIRIAM COLLEGE V. COURT OF
APPEALS Libog Article - (1) The right
of the students to free speech in school
premises is not absolute. The right to
free speech must always be applied in
light of the special characteristics of the
school environment. Thus, while the
court upheld the right of the students to
free expression in these cases,
disciplinary action by the school for
"conduct by the student, in class or out
of it, which for any reason - whether it
stems from time, place, or type of
behavior - which materially disrupts
classwork or involves substantial
disorder or invasion of the rights of
others were not ruled out. (2) The school
cannot suspend or expel a student solely
on the basis of the articles he or she has
written, except when such articles
materially disrupt class work or involve

will cause or bring about a substantive

evil which the state has a right to
prevent
If the words uttered create a
dangerous tendency which the
state has the right to prevent,
then such words are punishable. It
is not necessary that some
definite or immediate acts or
force, violence or unlawfulness be
advocated.
It is sufficient if the natural
tendency and probable effect of
the utterance be to bring about
the substantive evil which the
legislative body seek to prevent
-there should be a law on the onset
which will penalize such conduct
-Won the utterance will fall within the
concept of the law in which case it will
be restricted
- Natural and probable effect which the
law seek to avoid
3. the balancing of interests tests,
used as a standard when courts need to
balance conflicting social values and
individual interests, and requires a
conscious and detailed consideration of
the interplay of interests observable in a
given situation of type of
situation(Chavez v Gonzales)
A principle which requires a court to
consider the circumstances in each
particular case, and thereafter, it shall
settle issue of which right demands
greater value.
Authority is preffered than liberty

substantial disorder or invasion of the

rights of others
Gitlow v Newyork
Facts. The Petitioner was charged with
criminal anarchy because he was an
advocate of socialist reform in the United
States. The Petitioner is a member of the
Left Wing Section of the Socialist Party.
He served as the business manager for
the paper that was run by the
organization. In 1919 he published the
groups manifesto and prepared for
widespread distribution from the New
York City headquarters.
Issue. Did the statute prohibiting such
activity deprive the Petitioner of his First
Amendment constitutional right to
freedom of expression?
Held: No. The current statute is not an
unreasonable or arbitrary means of
exercising the states police power. It is
within the states power to prevent the
disturbance of the peace and regulate
speech that may incite crime even if the
threat of such action is not immediate.
Discussion. Freedom of speech and press
do not confer an absolute right to
publish or speak without being held
responsible for the results of such
speech. The state may regulate to
protect its interests in general welfare of
its citizens.

American Communication
Association v Douds
The US supreme court applied, in liue of
the clear and present danger rule, a
different test to determine the validity of
a state requiring non-Communist
affidavits of labor union officials. This
was the balancing test:
When particular conduct is

regulated in the interest of public

order, and the regulation results in
an indirect, conditional, partial
abridgement of speech, the duty
of the court is to determine which
of tbe two conflicting interests
demands the greater protection
under the particular circumstance
presented.
Criticism of official Conduct

US V BUSTOS
Facts:
In the latter part of 1915, numerous
citizens of the Province of Pampanga
assembled, then prepared and signed a
petition to the Executive Secretary, and
five individuals signed affidavits,
charging Roman Punsalan, justice of the
peace of Macabebe and Masantol,
Pampanga, with malfeasance in office
and asking for his removal. The
complainants charged that the justice of
the peace solicited bribe money in
consideration of favorable decisions. The
Executive Secretary referred the papers
to the judge of first instance of the
district. The judge of first instance, after
investigation, recommended to the
Governor-General that the justice of the
peace be removed from office. After
filing a motion for new trial, the judge of
first instance ordered the suppression of
the charges and acquitted the justice of
the peace of the same. Criminal action
was then begun against the petitioners,
now become the defendants, charging
that portions of the petition presented to
the Executive Secretary were libelous.
The trial court found thirty-two of the
defendants guilty and sentenced each of
them to pay a nominal fine. The case
was elevated to the Supreme Court for
review of the evidence.
Held:The interests of society and the

State regulation of diferent types

of media

maintenance of good government

demand a full discussion public affairs.
Complete liberty to comment on the
conduct of public men is necessary for
free speech. "The people are not obliged
to speak of the conduct of their officials
in whispers or with bated breath in a free
government, but only in a despotism.
Estern Broadcasting Corp v Dans
Facts: A petition was filed to reopen the
Radio Station DYRE. DYRE was
summarily closed on grounds of
national security. The radio station was
allegedly used to incite people to
sedition. Petitioner, DYRE contends that
they were denied due process. There
was no hearing to establish factual
evidence for the closure. Furthermore,
the closure of the radio station violates
freedom of expression. Before the court
could even promulgate a decision upon
the Issue raised, Petitioner, through its
president Mr. Rene Espina, filed a motion
to withdraw the petition. The rights of
the station were sold to a new owner,
Manuel Pastrana; who is no longer
interested in pursuing the case. Despite
the case becoming moot and academic,
(because there are no longer interested
parties, thus the dismissal of the case)
the Supreme Court still finds that there is
need to pass a RESOLUTION for the
guidance of inferior courts and
administrative tribunals in matters as
this case.
Issue:
Whether or not due process was
exercised in the case of DYRE.
Whether or not the closure of DYRE is a
violation of the Constitutional Right of

Freedom of Expression.
Held: The court finds that the closure of
the Radio Station in 1980 as null and
void. The absence of a hearing is a
violation of Constitutional Rights. The
primary requirements in administrative
proceedings are laid down in the case of
Ang Tibay v. Court of Industrial Relation
(69 Phil.635). The Ang Tibay Doctrine
should be followed before any broadcast
station may be closed. The Ang Tibay
Doctrine provides the following
requirements:
(1) The right to hearing, includes the
right to present ones case and submit
evidence presented.
(2) The tribunal must consider the
evidence presented
(3) The decision must have something to
support itself.
(4) Evidence must be substantial
(reasonable evidence that is adequate to
support conclusion)
(5) Decision must be based on the
evidence presented at hearing
(6) The tribunal body must act on its own
independent consideration of law and
facts and not simply accept
subordinates views
(7) Court must render decision in such a
manner that the proceeding can know
the various issued involved and reasons
for decisions rendered.
The court stresses that while there is no
controlling and precise definition of Due

Process, it gives an unavoidable

standard that government actions must
conform in order that deprivation of life,
liberty and property is valid.
The closure of the radio station is like
wise a violation of the constitutional
right of freedom of speech and
expression. The court stresses that all
forms of media, whether print or
broadcast are entitled to this
constitutional right. Although the
government still has the right to be
protected against broadcasts which
incite the listeners to violently overthrow
it. The test for the limitation of freedom
of expression is the clear and present
danger rule. If in the circumstances that
the media is used in such nature as to
create this danger that will bring in such
evils, then the law has the right to
prevent it. However, Radio and television
may not be used to organize a rebellion
or signal a start of widespread uprising.
The freedom to comment on public
affairs is essential to the vitality of a
representative democracy. The people
continues to have the right to be
informed on public affairs and broadcast
media continues to have the pervasive
influence to the people being the most
accessible form of media. Therefore,
broadcast stations deserve the the
special protection given to all forms of
media by the due process and freedom
of expression clauses of the Constitution.
Divinagracia v Consolidated
Broadcasting System
It rests on the fallacy that broadcast
media are entitled to the same
treatment under the free speech
guarantee of the Constitution as the
print media. There are important
differences in the characteristics of the

two media, however, which justify their

differential treatment for free speech
purposes. Because of the physical
limitations of the broadcast spectrum,
the government must, of necessity,
allocate broadcast frequencies to those
wishing to use them. There is no similar
justification for government allocation
and regulation of the print media.
Commercial Speech
-communication whose sole purpose is
to propose commercial transaction. It
has not heen accorded the same levelvl
of protection as that given to what is
called "core" speech such as political
speech
Commercial speech may be regulated if:
A. Government has substantial interest
to protect
B.thee regulation directly advances that
interest
C. It is not more extensive than is
necessary to protect that interest
D. It nust not be overboard
Art and obscenity
Test of obscenity:
Whether "the average person,
applying contemporary
community standards", would find
that the work, taken as a whole,
appeals to the prurient interest,
Whether the work depicts or
describes, in a patently offensive
way, sexual conduct specifically
defined by applicable state law,
Whether the work, taken as a
whole, lacks serious literary,
artistic, political, or scientific value
Privileged Communication
Requisites:
1. Person who made the communication
had a legal moral social duty to make
the communication, or at least had an
interest to protect which may either be

Ledesma v CA
The rule on privileged communication is
that a communication made in good
faith on any subject matter in which the
communicator has an interest, or
concerning which he has a duty, is

his own or the one whom it is made

2. Communication is addressed to an
officer or a board or superior having
some interest or duty in the matter
andvwho has the power to furnish the
protection sought
3. Statements in the communication are
made in good faith and without malice.
Libel of public officials and public
figures

Lawful Assembly
-Mayors cannot prohibit, they can only
regulate
Rules on assembly and petition:
1.The applicants for a permit to hold an
assembly should inform the licensing
authority of the date, the public place
where and the time when it will take
place
2.Such application should be filed well
ahead in time to enable the public
official concerned to appraise whether
there may be valid objections to the
grant of the permit or to its grant but at
another public place. It is an
indispensable condition to such refusal
or modification that the clear and
present danger test be the standard for
the decision reached.
3.Thereafter, his decision, whether
favorable or adverse, must be
transmitted to them at the earliest
opportunity. Thus if so minded, then, can
have recourse to the proper judicial
authority.

privileged if made to a person having a

corresponding interest or duty, although
it contains incriminatory matter which,
without the privilege, would be libelous
and actionable.

New york times co v Sullivan

A public official is prohibited from
recovering damages for a defamatory
falsehood relating to his official conduct
unless he prives that the statemsnt was
made with actual malice
PRIMICIAS VS. FUGOSO [80 PHIL 71; L1800; 27 JAN 1948]
Facts: An action was instituted by the
petitioner for the refusal of the
respondent to issue a permit to them to
hold a public meeting in Plaza Miranda
for redress of grievances to the
government. The reason alleged by the
respondent in his defense for refusing
the permit is, "that there is a reasonable
ground to believe, basing upon previous
utterances and upon the fact that
passions, specially on the part of the
losing groups, remains bitter and high,
that similar speeches will be delivered
tending to undermine the faith and
confidence of the people in their
government, and in the duly constituted
authorities, which might threaten
breaches of the peace and a disruption
of public order." Giving emphasis as well
to the delegated police power to local
government. Stating as well Revised
Ordinances of 1927 prohibiting as an
offense against public peace, and
penalizes as a misdemeanor, "any act, in
any public place, meeting, or procession,
tending to disturb the peace or excite a
riot; or collect with other persons in a

body or crowd for any unlawful purpose;

or disturb or disquiet any congregation
engaged in any lawful assembly."
Included herein is Sec. 1119, Free use of
Public Place.1

Issue: Whether or Not the freedom of

speech was violated.
Held: Yes. Dealing with the ordinance,
specifically, Sec. 1119, said section
provides for two constructions: (1) the
Mayor of the City of Manila is vested with
unregulated discretion to grant or refuse,
to grant permit for the holding of a
lawful assembly or meeting, parade, or
procession in the streets and other
public places of the City of Manila; (2)
The right of the Mayor is subject to
reasonable discretion to determine or
specify the streets or public places to be
used with the view to prevent confusion
by overlapping, to secure convenient use
of the streets and public places by
others, and to provide adequate and
proper policing to minimize the risk of
disorder. The court favored the second
construction. First construction
tantamount to authorizing the Mayor to
prohibit the use of the streets. Under our
democratic system of government no
such unlimited power may be validly
granted to any officer of the
government, except perhaps in cases of
national emergency.
The Mayors first defense is untenable.
Fear of serious injury cannot alone justify
suppression of free speech and
assembly. It is the function of speech to
free men from the bondage of irrational
fears. To justify suppression of free
speech there must be reasonable ground
to fear that serious evil will result if free
speech is practiced. There must be

reasonable ground to believe that the

danger apprehended is imminent. There
must be reasonable ground to believe
that the evil to be prevented is a serious
one . The fact that speech is likely to
result in some violence or in destruction
of property is not enough to justify its
suppression. There must be the
probability of serious injury to the state.
Dela Cruz v Ela
Municial mayor when asked to issue
permit for the use of a particular part of
a publicvplaza, desigmaged part on the
ground that the place requested might
lead to disruption of the rites that might
be held in a nearby church.
NAVARRO V. VILLEGAS - Sunken
Gardens as alternative to Plaza Miranda The Mayor cannot be compelled to issue
the permit. A permit should recognize
the right of the applicants to hold their
assembly at a public place of their
choice, another place may be designated
by the licensing authority if it be shown
that a clear and present danger of a
substantive evil if no change was made
Permit for public assembly not
necessary
1.private place
2. Campus of a government owned or
operated educational institution
3. Freedom park
BP 880
Section 4. Permit when required and
when not required - A written permit
shall be required for any person or
persons to organize and hold a public
assembly in a public place. However, no
permit shall be required if the public
assembly shall be done or made in a
freedom park duly established by law or
ordinance or in private property, in

which case only the consent of the

owner or the one entitled to its legal
possession is required, or in the campus
of a government-owned and operated
educational institution which shall be
subject to the rules and regulations of
said educational institution. Political
meetings or rallies held during any
election campaign period as provided for
by law are not covered by this Act.
Section 5.
Application requirements All applications for a permit shall comply
with the following guidelines:
(a)
The applications shall be in writing
and shall include the names of the
leaders or organizers; the purpose of
such public assembly; the date, time and
duration thereof, and place or streets to
be used for the intended activity; and
the probable number of persons
participating, the transport and the
public address systems to be used.
(b)
The application shall incorporate
the duty and responsibility of applicant
under Section 8 hereof.
(c)
The application shall be filed with
the office of the mayor of the city or
municipality in whose jurisdiction the
intended activity is to be held, at least
five (5) working days before the
scheduled public assembly.
(d)
Upon receipt of the application,
which must be duly acknowledged in
writing, the office of the city or municipal
mayor shall cause the same to
immediately be posted at a conspicuous
place in the city or municipal building.
Flag Law

Texas v johnson
Burning of flag constitutes a symbolic

speech
Libel
Defenses:
1. Truth
2. Elements
3. Privileged communication- include
pleadings in the court
libel is defined as a public and malicious
imputation of a crime, or of a vice or
defect, real or imaginary, or any act,
omission, condition, status or
circumstance tending to discredit or
cause the dishonor or contempt of a
natural or juridical person, or to blacken
the memory of one who is dead. Thus,
the elements of libel are: (a) imputation
of a discreditable act or condition to
another; (b) publication of the
imputation; (c) identity of the person
defamed; and, (d) existence of malice.
Right to association
Embraced in the frreedom of expression
because it can be used as vehicle for
expressing of views that has a bearing
on public welfare
The constitutional right to association
does not preclude the imposition of
relevant qualificatiob for membership in
any organization

Victoriano v Elizalde Rope workers

The right to association includes the
right not to join any organization

FREEDOM OF RELIGION
Article III, Section 5
No law shall be made respecting an establishment of religion, or prohibiting the free
exercise thereof. The free exercise and enjoyment of religious profession and
worship, without discrimination or preference, shall forever be allowed. No religious

test shall be required for the exercise of civil or political rights.

Art. II, Sec.6
The separation of Church and State shall be inviolable.
Art VI, Sec. 28(3)
Charitable institutions, churches and parsonages or convents appurtenant thereto,
mosques, non-profit cemeteries, and all lands, buildings, and improvements,
actually, directly, and exclusively used for religious, charitable, or educational
purposes shall be exempt from taxation.
Art. VI, Sec. 29(2)
No public money or property shall be appropriated, applied, paid, or employed,
directly or indirectly, for the use, benefit, or support of any sect, church,
denomination, sectarian institution, or system of religion, or of any priest, preacher,
minister, or other religious teacher, or dignitary as such, except when such priest,
preacher, minister, or dignitary is assigned to the armed forces, or to any penal
institution, or government orphanage or leprosarium.
Art. XIV, Sec. 4(2)
Educational institutions, other than those established by religious groups and
mission boards, shall be owned solely by citizens of the Philippines or corporations
or associations at least sixty per centum of the capital of which is owned by such
citizens. The Congress may, however, require increased Filipino equity participation
in all educational institutions.
Art. XIV, Sec.3(3)
(3) At the option expressed in writing by the parents or guardians, religion shall be
allowed to be taught to their children or wards in public elementary and high
schools within the regular class hours by instructors designated or approved by the
religious authorities of the religion to which the children or wards belong, without
additional cost to the Government.
Religion
Any specidic system of
belief,worship, conduct,etc often
involving a code of ethics and
philosophy.
A profession of faitb to an active
power that binds and elevates
man to his creator.(Aglipay v Ruiz)
Freedom of religion
Includes a rejection of religion, a
refusal to believe in a hereafter or
in the supremacy of a
supernatural person with powers
over life and death.
Separation of Church and State
Aglipay v Ruiz
- the idea is to delineate the boundaries
between the two institutions and thus
The Director of Posts announced on May

avoid encroachments by one against the

other because of a misunderstanding of
the limits of their respective exclusive
jurisdiction
Section VI 29(2)
Does not onhibit the use of public
property for religious purposes when the
religious character of such use is merely
incidental to a temporary use which is
available indiscriminately to the public in
general.
Art. XIV, Sec.3 (3)
As an exception to the general rule,
public elementary and high schools may
may be used for optional religious
instruction.
Intramural Religious dispute
Intramural disputes regarding
religious dogma and other matters
of faith are outside the jurisdiction
of the secular authorities.
Whatever dogma is adopted by a
certain religious group cannot be
binding upon the state if it
contravenes its valid laws.

1936 in Manila newspapers that he

would order the issuance of postage
stamps for the commemoration of the
33rd International Eucharistic Congress
celebration in the City of Manila. The
said event was organized by the Roman
Catholic Church. Monsignor Gregorio
Aglipay, the petitioner, is the Supreme
Head of the Philippine Independent
Church, requested Vicente Sotto who is a
member of the Philippine Bar to raise the
matter to the President. The said stamps
in consideration were actually issued
already and sold though the greater part
thereof remained unsold. The further
sale of the stamps was sought to be
prevented by the petitioner.
Issue:
Whether or not the respondent violated
the Constitution in issuing and selling
postage stamps commemorative of the
Thirty-third International Eucharistic
Congress
Held:
No, the respondent did not violate the
Constitution by issuing and selling the
commemorative postage stamps. Ruiz
acted under the provision of Act No.
4052, which contemplates no religious
purpose in view, giving the Director of
Posts the discretion to determine when
the issuance of new postage stamps
would be advantageous to the
Government. Of course, the phrase
advantageous to the Government does
not authorize the violation of the
Constitution. In the case at bar, the
issuance of the postage stamps was not
intended by Ruiz to favor a particular
church or denomination. The stamps did

Non establishment clause (First

sentence,Sec. 5 art3)
Prohibits the state from passing
laws which aid one religion, aid all
religions or prefer one religion
over another ( Everson v Board of
Education)
Scope: 1. The state cannot set up
a church. 2. Cannot pass law
which aid one or all religions or
prefer one over another. 3. Cannot
influence a person to go-to or
remain away from church against
his will 4. Force him to profess a
belief or disbelief in any religion.
Test to determine when there is no
establishmeny clause: 1.The statute

not benefit the Roman Catholic Church,

nor were money derived from the sale of
the stamps given to that church. The
purpose of issuing of the stamps was to
actually take advantage of an
international event considered to be a
great opportunity to give publicity to the
Philippines and as a result attract more
tourists to the country. In evaluating the
design made for the stamp, it showed
the map of the Philippines instead of
showing a Catholic chalice. The focus
was on the location of the City of Manila,
and it also bore the inscription that reads
Seat XXXIII International Eucharistic
Congress, Feb. 3-7, 1937. In considering
these, it is evident that there is no
violation of the Constitution therefore
the act of the issuing of the stamps is
constitutional
Garces v Estenzo
There was no violation of the
Constitution whwere it was shown that
the money used by a barangay council
for the purchase of a religious image was
raised by it from peivate contributions
and did not constitute public funds.
FACTS:
An administrative complaint was
filed by Estrada against Escritor before
Branch 253 of the RTC of Las Pinas City
for living with a man not her husband
and having borne a child within this livein arrangement. Escritor is the court
interpreter of RTC Branch 253. Estrada
believes that Escritor is committing an
immoral act that tarnishes the image of
the court, thus she should not be
allowed to remain employed therein as it
might appear that the court condones
her act. She was charged with
committing disgraceful and immoral
conduct under Book V, Title I, Section

has a secular legislative purpose 2. Its

principal or primary effect is one that
neither advances nor inhibits religion 3.
It does not foster an excessive
government entanglement with religion
(Lemon v Kurtzman)
Manifestastation of non
establishment clause under the
constitution:
1. Art VI Section28 (3) - exemption from
taxation of roerties actually, directly and
exclusively used for religious purposes
2. Article XIV Section 3 (3) ( optional
religious instruction in public elementary
and high school)
3. Article XIV Section4(2) ( Citizenship
requirement of ownership of educational
institutions; except those established by
religious groups and mission boards)
4. Article VI Section 29(2) ( Appropriation
allowed where ecclesiastic is employed
in armed forces, in a penal institution, or
in a govetnment-owned orphanage or
leprosarium)
Test applied by courts in
determining violationa against nonestablishment clause
1. Strict Neutrality- examines only
whether government action is for a
secular puepose and does not consider
inadvertent burden ob religious exercise;
a rigid reading of the principle of
separation between church and state.
2.Benevolent NeutralityAn approach that looks further than the
secular purposes of government action
and examines the effect of those actions
on religious exercise; the Court will strive
to accommodate religious beliefs and
practices when it can within flexible
constitutional limits.The philippines
adheres to those.
Non-violative of the non-

46 (b) (5) of the Revised Administrative

Code.
Escritor was already a widow
when she entered the judiciary in 1999.
She started living with Luciano Quilapio,
Jr. without the benefit of marriage more
than twenty years ago when her
husband was still alive but living with
another woman. They have a son. After
ten years of living together, she
executed on July 28, 1991 a Declaration
of Pledging Faithfulness in conformity
with their religious beliefs and has the
approval of her congregation, the
Jehovahs Witnesses and the Watch
Tower and Bible Tract Society.
Once all legal impediments for the
couple are lifted, the validity of the
declarations ceases and the couple
should legalize their union. Insofar as the
congregation is concerned, there is
nothing immoral about the conjugal
arrangement and they remain members
in good standing in the congregation.
Escritor appears to be sincere in
her religious belief and practice and is
not merely using the Declaration of
Pledging Faithfulness to avoid
punishment for immorality. Ministers
from her congregation testified on the
authenticity of this practice and that this
is to make the union of their members
under such circumstances honorable
before God and men.
The court could not rule on the
issue of whether or not Escritor was to
be held administratively liable so the
case was remanded to the Office of the
Court Administrator (OCA) and ordered
the Office of the Solicitor General (OSG)
to intervene in the case.

establishment clause, based on

jurusprudence:
1. Postage stamps depicting Philippines
as the site of a significant religious event
(Aglipay v Ruiz)
2. Government sponsorship pf town
fiestas ( Garces v Eztenzo)
3. Book lending program for students of
parochial schools (Book of Education v
Allen)
4. Display of creche in a secular setting (
Lynch v Donnely)
5. Financial support for seculsr academic
facilities( Tilton v Richardson)
6. Exemption from zoning requirements
to accomodate unique architectural
features of religious buildings(Martin v
corporation of presiding bishop)

B. Freedom of Religious belief and

worship
Dual aspect of freedom of religious
belief and worship:
1.Freedom to believe - Absolute as long
as it is confined in the real of thought
2. Freedom to act on one's belief- subject
to regulation where the belief is
translated into external acts that affect

ISSUE:
Whether or not Escritors
religious belief and practice should
warrant her claim of religious freedom
under Article III, Section 5 of the
Constitution.
HELD:
The administrative complaint
was dismissed. The OSG categorically
concedes that the sincerity and
centrality of Escritors claimed religious
belief and practice are beyond serious
doubt. Her request to be exempt from
attending the flag ceremony on the
ground of the Jehovahs Witnesses
contrary belief and practice was duly
noted. The OSG failed to demonstrate
the gravest abuses, endangering
paramount interests which could limit
or override Escritors fundamental right
to religious freedom.

In this particular case and under

these distinct circumstances, Escritors
conjugal arrangement cannot be
penalized as she has made out a case
for exemption from the law based on her
fundamental right to freedom of religion.
Man stands accountable to an authority
higher than the state
Ebralinag v the division
Superintendent of schools of Cebu
Facts:
All the petitioners in these two cases
were expelled from their classes by the
public school authorities in Cebu for
refusing to salute the flag, sing the
national anthem and recite the patriotic
pledge as required by Republic Act No.

the public welfare.

Freedom to believe not subject to
regulation
Freedom to believe carries with it the
corollary expectation. That the
government,while it may look into the
good faith of a person, cannot inquire
into a person's religious pretensions.
However, the moment belief flows into
action it becomes subject to government
regulation

1265 and DECS Department Order No. 8

which stipulated compulsory flag
ceremonies in all educational
institutions. Jehovah's Witnesses
admittedly teach their children not to
salute the flag, sing the national anthem,
and recite the patriotic pledge for they
believe that those are "acts of worship"
or "religious devotion" which they
"cannot conscientiously give . . . to
anyone or anything except God". They
consider the flag as an image or idol
representing the State. They allege that
the action of the local authorities in
compelling the flag salute and pledge
transcends constitutional limitations on
the State's power and invades the
sphere of the intellect and spirit which
the Constitution protects against official
control. In requiring school pupils to
participate in the flag salute, the State
thru the Secretary of Education is not
imposing a religion or religious belief or
a religious test on said students. It is
merely enforcing a non-discriminatory
school regulation applicable to all alike.
Under the Administrative Code of 1987,
Any teacher or student or pupil who
refuses to join or participate in the flag
ceremony may be dismissed after due
investigation. In 1989, the DECS
Regional Office in Cebu received
complaints about teachers and pupils
belonging to the Jehovah's Witnesses,
and enrolled in various public and
private schools, who refused to sing the
Philippine national anthem, salute the
Philippine flag and recite the patriotic
pledge. Cebu school officials resorted to
a number of ways to persuade the
children of Jehovah's Witnesses to obey
the memorandum. In the Buenavista
Elementary School, the children were
asked to sign an Agreement promising to

sing the national anthem, place their

right hand on their breast until the end
of the song and recite the pledge of
allegiance to the flag. However, things
took a turn for the worst. In the Daan
Bantayan District, the District
Supervisor, Manuel F. Biongcog, ordered
the "dropping from the rolls" of students
who "opted to follow their religious belief
which is against the Flag Salute Law" on
the theory that "they forfeited their right
to attend public schools." 43 students
were subsequently expelled after
refusing to sing. The petition in G.R. No.
95887 was filed by 25 students who
were similarly expelled because Dr.
Pablo Antopina, who succeeded Susana
Cabahug as Division Superintendent of
Schools, would not recall the expulsion
orders of his predecessor. Instead, he
verbally caused the expulsion of some
more children of Jehovah's Witnesses.
The petitioning students filed on account
of grave abuse of discretion on the part
of the respondents in violating their due
process and their right to education.
They alleged for the nullity of the
expulsion or dropping from the rolls of
petitioners from their respective schools,
prohibiting respondents from further
barring the petitioners from their
classes, and compelling the respondent
and all persons acting for him to admit
and order the re-admission of petitioners
to their respective schools. They also
prayed for a TRO. On November 27,
1990, the Court issued a TRO and a writ
of preliminary mandatory injunction
commanding the respondents to
immediately re-admit the petitioners to
their respective classes until further
orders from this Court. The OSG
commented on the defense of the
expulsion orders and claimed that the

flag salute was devoid of any religious

significance and the State had
compelling interests to expel the
children.
Issue:
Whether school children who
are members of Jehovah's Witnesses
may be expelled from school (both
public and private), for refusing, on
account of their religious beliefs, to take
part in the flag ceremony which includes
playing or singing the Philippine national
anthem, saluting the Philippine flag and
reciting the patriotic pledge.

Held:
No. Religious freedom is a fundamental
right which is entitled to the highest
priority and the amplest protection
among human rights, for it involves the
relationship of man to his Creator. The
right to religious profession and worship
has a two-fold aspect, vis., freedom to
believe and freedom to act on one's
belief. The first is absolute as long as the
belief is confined within the realm of
thought. The second is subject to
regulation where the belief is translated
into external acts that affect the public
welfare. Petitioners stress, however, that
while they do not take part in the
compulsory flag ceremony, they do not
engage in "external acts" or behavior
that would offend their countrymen who
believe in expressing their love of
country through the observance of the
flag ceremony. The sole justification for a
prior restraint or limitation on the
exercise of religious freedom is the
existence of a grave and present danger
of a character both grave and imminent,
of a serious evil to public safety, public

morals, public health or any other

legitimate public interest, that the State
has a right and a duty to prevent. We are
not persuaded that by exempting the
Jehovah's Witnesses from saluting the
flag, singing the national anthem and
reciting the patriotic pledge, this
religious group which admittedly
comprises a "small portion of the school
population" will shake up our part of the
globe and suddenly produce a nation
"untaught and uninculcated in and
unimbued with reverence for the flag,
patriotism, love of country and
admiration for national heroes. Expelling
or banning the petitioners from
Philippine schools will bring about the
very situation that this Court had feared
in Gerona. Forcing a small religious
group, through the iron hand of the law,
to participate in a ceremony that
violates their religious beliefs, will hardly
be conducive to love of country or
respect for dully constituted authorities.
Furthermore, let it be noted that coerced
unity and loyalty even to the country,
assuming that such unity and loyalty can
be attained through coercion, is not a
goal that is constitutionally obtainable at
the expense of religious liberty. A
desirable end cannot be promoted by
prohibited means. Moreover, the
expulsion of members of Jehovah's
Witnesses from the schools where they
are enrolled will violate their right as
Philippine citizens, under the 1987
Constitution, to receive free education,
for it is the duty of the State to "protect
and promote the right of all citizens to
quality education . . . and to make such
education accessible to all. We hold
that a similar exemption may be
accorded to the Jehovah's Witnesses
with regard to the observance of the flag

ceremony out of respect for their

religious beliefs, however "bizarre" those
beliefs may seem to others.
Nevertheless, their right not to
participate in the flag ceremony does not
give them a right to disrupt such
patriotic exercises. Paraphrasing the
warning cited by this Court in Non vs.
Dames II, while the highest regard must
be afforded their right to the free
exercise of their religion, "this should not
be taken to mean that school authorities
are powerless to discipline them" if they
should commit breaches of the peace by
actions that offend the sensibilities, both
religious and patriotic, of other persons.
If they quietly stand at attention during
the flag ceremony while their classmates
and teachers salute the flag, sing the
national anthem and recite the patriotic
pledge, we do not see how such conduct
may possibly disturb the peace, or pose
"a grave and present danger of a serious
evil to public safety, public morals,
public health or any other legitimate
public interest that the State has a right
(and duty) to prevent.

FREEDOM OF RELIGION