CONSTITUTIONAL LAW II (16 May 2018)

Final Exams Review Materials

Sections 1-O and 1-Q
Comm. Wilhelm D. Soriano
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Article III – Bill of Rights

Q- Why Article III is called the Bill of Rights?

A - The set of prescriptions setting forth the fundamental civil and

political rights of the individual, and imposing limitations on the powers
of the government as a means of securing the enjoyment of those rights

Q- What is the purpose of the Bill of Rights?

A - The Bill of Rights is designed to preserve the ideals of liberty,

equality and security against the assaults of opportunism, the
expediency of the passing hour, the erosion of small encroachments, and
the scorn and derision of those who have no patience with general
principles

Civil rights are those rights appertaining to a person by virtue of his

citizenship in a State, and of which are capable of being enforced or
redressed in a civil action. Ex – rights to property, enter into a contract

Political rights are those rights appurtenant to citizenship vis-à-vis the

management of government, or the right to participate in the
establishment and administration of government. Ex- the right of
suffrage, the right to hold office

Section 1 – no person shall be deprived of life, liberty or property

without due process of law, nor shall any person denied the equal
protection of the laws

Q- What are the rights protected under section 1?

A- Life, liberty, property, and equal protection of the laws

Q- What is the hierarchy of rights under section 1?

A- Life, liberty and property

The application of hierarchy of rights is when the crime committed is

against property but the punishment is deprivation of life or any part of
the human body. Ex – if you are convicted for stealing, your hand is cut,
or if you are convicted as peeping tom, your eyes will be plucked out

Meaning of life, liberty and property as contemplated under section 1

Life includes the right of an individual to his body in its completeness,

free from dismemberment, and extends to the use of God-given faculties
which makes life enjoyable

Liberty includes the right to exist and the right to be free from arbitrary
personal restraint or servitude. It includes the right of the citizen to be
free to use his faculties in a lawful ways

Property is anything that can come under the right of ownership and be
the subject of contract

Section 1 allows the State to interferes on the rights of the people

provided that due process is observed

Q- What is the aspects of due process?

A - Due process of law has to be understood simply as a process or

proceeding according to the law of the land

Due process of law as a process refers to the substantive due process,

which refers to the intrinsic validity of the law in interfering with the
rights of the person to his life, liberty, or property. Hence, the
substantive due process must be understood to guarantee not just the
forms and procedure but also the very substance of the law

Due process of law as a proceeding refers to procedural fairness

observed by the state in interfering with the life, liberty or property of a
person, the minimum requirement is notice and hearing
Q- What is the essence of due process?

A- Notice and Hearing

Q- Is Appeal part of due process?

A - No, appeal is not a natural right nor is it part of due process. But
where the constitution or a law grants a person the right to appeal,
denial of the right to appeal constitute a violation of due process

Q- What is the scope of the equal protection of the laws clause?

A - All persons or things similarly situated should be treated alike,

both as to rights conferred and responsibilities imposed. Natural and
juridical persons are entitled to this guarantee, but with respect to
juridical persons, only their property is protected

Section 2 – the right of the people to be secure in their persons,

houses, papers and effects against unreasonable search 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 a
judge, after examination under oath or affirmation of the
complainant and the witnesses he may produce, particularly
describing the place to be searched, or the persons or things to be
seized

Q- What kind of search or seizure is prohibited under section 2?

A- Unreasonable search and seizure

Q- What is an unreasonable search and seizure?

A- Unreasonable search and seizure is when not accompanied by a

valid warrant

Q- What are the requirements for the issuance of a valid warrant?

A- 1) It must be based upon probable cause

2) The probable cause must be determined personally by the

judge

3) The determination must be made after examination under oath

or affirmation of the complainant and the witnesses he may
produce

4) It must particularly describe the place to be searched and the

person or things to be searched

The rule that searches and seizures must be supported by a valid

warrant is not an absolute rule. The search and seizure clause has two
parts; the first prohibits unreasonable searches and seizures, the
second, lays down the requirements for a valid warrant. Hence, a search
or seizures without warrant is not necessarily unreasonable. The court
has recognized well-established exceptions to the warrant requirement
and these are;

1. Search incidental to an arrest

2. Search of a moving vehicle
3. Seizure of evidence in plain view
4. Custom searches
5. Where there is a waiver of right
6. Exigent circumstance
7. Stop and frisk rule

Section 3 - the privacy of communication and correspondence shall

be inviolable except upon lawful order of the court or when public
safety or order requires otherwise as prescribed by law

Any evidence obtained in violation of this or the preceding

section shall be inadmissible for any purpose in any proceeding

Privacy is a constitutional right, this includes, privacy to persons,

privacy at home, privacy of papers and effects, now section 3 deals with
privacy of communication and correspondence. It is a recognized
universal norm that a person is entitled to his secrets

The guarantee under section 3 is not absolute. Meaning, if there is a

lawful order from the court then the government may intrude. However,
before the court may issue an order, the judge has to personally
determine probable cause, because the application partakes of an
application for search warrant

Section 3 also allows intrusion if public safety or order requires it as

prescribed by law. However, there is yet no law that would authorize
intrusion by reason of public safety or order. This exception seems to
have been rendered obsolete by, first, the anti-wire tapping law, and
now, the cybercrime law

Section 3, par 2 is what is known as the exclusionary rule – which

bars the admission of illegally obtained evidence. The figure of
speech refers to it as – the fruit of the poisonous tree

Earlier in the People vs Moncado case, evidence obtained illegally may

still be admitted as evidence to prosecute the accused, but the officer
involved may be liable for the wrong committed. The prevailing rule
now is the case of Stonehill vs Diokno, that illegally obtained evidence
is inadmissible in any proceeding for any purpose

Section 4 – no law shall be passed abridging (to diminish or curtail)

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

Section 4 is a protection against the government’s exercise of its police

power that through a law, government may diminish or curtail the
exercise of the freedom of speech, expression, or of the press, as well as,
the peoples’ right to assemble peacefully and petition the government
for redress

Please take note, that section 4 of the 1987 constitution has added
freedom of expression, which was not found in the 1973 constitution,
particularly Article IV, section 9, and also not found in the 1935
constitution, particularly Article III, section 8, as well as, from the very
first law when the bill of rights was introduced to the Philippine Islands,
US Act 235, section 5, aka the Philippine Bill of 1902

In the case of Diocese of Bacolod vs Comelec, G.R. No. 205728 (2015),

the Supreme Court introduced several theories and schools of thought
that strengthen the need to protect the freedom of expression;

1. The first pertains to what is referred to as “deliberative

democracy” which would include the right of the people to
participate in public affairs, including the right to criticize
government actions
2. Considers free speech as being under the concept of a market
place of ideas, and should therefore be encourage
3. Free speech likewise involves self-expression that enhances
human dignity
4. Free expression as a marker for group identity
5. It protects individuals and minorities against majoritarian abuses
perpetrated through the framework of democratic governance
6. Freedom of expression must be protected under the safety valve
theory. This provides the non-violent manifestations of dissent
reduce the likelihood of violence

Freedom of speech is not absolute and the government may curtail such
exercise if it would incite to illegal action. In the early stages of
Philippine jurisprudence, the accepted rule was that speech, may be
curtailed or punished when it creates a dangerous tendency which has
the right to prevent (seditious speech)

In the Philippine jurisprudence, Justice Fernando had the occasion to

explain the clear and present danger. The term clear point to a causal
connection with the danger of the substantive evil arising from the
utterance questioned; present refers to the time element, the danger
must not only be probable but very likely inevitable

Forms of speech which are not protected by the constitution are 1)

Libel; and, 2) Obscenity
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 be forever allowed. No religious
test shall be required for the exercise of civil or political rights

Two guarantees contained in section 5 -1) non-establishment clause;

and 2) freedom of religious profession and worship

Non-establishment clause reinforces section 6, Article II on the

separation of Church and State, which means that the State cannot set
up a church, nor pass laws which aid one religion, aid all religion, or
prefer one religion over another, nor force nor influence a person to go
to or remain away from church against his will or force him to profess a
belief or disbelief in any religion

Freedom of religious profession and worship – the right to believe is

absolute, but the right to act according to one’s belief is not absolute, the
manner of worship is subject to regulation

Section 6 – the liberty of abode and of changing the same within the
limits prescribed by law shall not be impaired except upon lawful
order of the court

Neither shall the right to travel be impaired except in the

interest of national security, public safety, or public health, as may
be provided by law

Q- What is the purpose of section 6?

A - The purpose of section 6 is to further emphasize importance of

the freedom of movement of person and his freedom to choose where to
reside in a democratic regime. This is complimentary with section 1,
where the right of liberty of any individual shall not be denied without
due process

Freedom of movement under section 6 involves two rights, first – the

right to choose where to reside, and second – the right to travel
N.B. – the protection of liberty under section 1 refers to the measure of
freedom, which may be enjoyed by an individual in a civilized
community. The right of liberty in the context of section 1 and section 6,
includes the right to be free from arbitrary restraint or servitude. As
enunciated in so many cases decided by the Supreme Court, liberty
includes the right of the citizen to be free to use his faculties in all lawful
ways; to live and work where he choose; to earn his livelihood by any
lawful calling; to pursue any vocation; and to enter into all contracts
which may be proper; and the most important to liberty of an individual
is the freedom of locomotion

Section 7 – The right of the people to information on matters of

public concern shall be recognized.

Access to official records, and to documents and papers pertaining

to official acts, transactions, or decisions, as well as to government
research data used as basis for policy development, shall be
afforded the citizen subject to such limitations as may be provided
by law

Section 7 now expressly recognizes that the people are entitled to

information on matters of public concern and also entitled to be granted
access to official records, documents, transactions, policy decisions,
subject to certain limitations prescribed by law

The recognition of this right in the constitution is an affirmation that of

the fundamental role of free exchange of information in a democracy.
There can be no realistic perception by the public of the nation’s
problems, nor, meaningful democratic decision-making if they are
denied access to information of matters of public concern

The reason for this provision is to provide the people sufficient

information on the decision-making and operations of the government,
as well as, to check on the accountability of the government officials, for
unless the citizens have the proper information they cannot hold public
officials accountable for anything. An informed citizenry is essential to
the existence and proper function of any democracy
A complimentary to section 7 is section 28 of Article II – subject to
reasonable conditions prescribed by law, the State adopts and
implements a policy of full public disclosure of all its transactions
involving public interest

Section 28 purpose is to impose upon the government officials the duty

to disclose to the public all their transactions involving public interest,
even without any demand from the public. Unfortunately, section 28 is
considered as non-executory, hence, it requires a law to be
operationalized. The Freedom of Information Bill has been filed and
refilled every Congress, but for the last 29 years, Congress has not acted
on it, for their own personal reasons

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 abridge

As the saying goes – ‘no man is an island,” meaning man must live with
men or in a community or a civilized society. The instinct to organize
and form an association or a particular grouping is a very basic human
drive, and therefore, the framers of the constitution had seen it fit to
protect it with an express provision such as section 8
Page eight:

However, this guarantee is not absolute since it requires that the

purpose of such organization, association, or union, must not be
contrary to law. It simply means that the right guaranteed under section
8, while, no less than the constitution itself that guarantees it,
nonetheless, it is also recognized that the exercise of such guarantee is
subject to the inherent police power of the State to regulate the conduct
and activities of the people

Section 9 – Private property shall not be taken for public use

without just compensation

Section 10 – no law impairing the obligation of contracts shall be

passed

Both sections are not included in the final exams

Section 11 – free access to courts and quasi-judicial bodies and
adequate legal assistance shall not be denied to any person by
reason of poverty

Q– What is the purpose of this provision?

A - The purpose of section 11 is to afford citizens who have less in life

that they can seek justice through the courts for the wrong done to them
by exempting them from paying filing fees, dockets fees, and other
incidental fees. As well as, providing them adequate legal assistance for
free

The purpose of this provision is to level the playing field between the
poor and the rich. Again this compliment the equal protection of the law
provision

Q - Is this not redundant since there is a similar provision in section

12, which provides that “if the accused cannot afford a lawyer, the court
may provide him counsel de officio?

A - Apparently it is but actually it is not redundant since section 11 is

available to all persons, while in section 12, only persons who are
accused of a criminal offense may avail of the same

Section 12 – Any person under investigation for the commission of

an offense shall have the right to be informed of his right to remain
silent and to have competent and independent counsel preferably
of his own choice. If the person cannot afford the services of
counsel, he must be provided with one. These rights cannot be
waived except in writing in the presence of counsel

No torture, force, violence, threat, intimidation, or any other means

which vitiate the free will shall be used against him. Secret
detention places, solitary, incommunicado, or other similar forms
of detention are prohibited
Any confession or admission obtained in violation of this section or
section 17 (no person shall be compelled to be a witness against
himself) hereof shall be inadmissible in evidence against him

The law shall provide for penal and civil actions for violations of
this section as well as compensation to and rehabilitation of
victims of torture (now a criminal offense) or similar practices, and
their families

Q- What are the rights available under section 12?

A- a) The right to be informed of his right to remain silent

b) The right to have a competent and independent counsel
c) If he cannot afford a counsel, he must be provided with a
counsel
d) That these rights cannot be waived except in writing and in the
presence of a counsel

Under the 1987 constitution, the person under investigation in relation

to the commission of an offense need not be under custody. In the case
of Galman vs Pamaran, 138 SCRA 294, 319 (1985), the Supreme Court
explained the intention of the framers of 1973 constitution of not
including the term “custodial investigation” but simply used the words
“under investigation” that they did not adopted entirely the doctrines
laid down in the Miranda vs Arizona case. Therefore, the rights began
the moment a person becomes the focus of investigation by the law
enforcement agents in relation to the commission of an offense, or,
when the person is a suspect even if he is not yet under custody but the
investigation is no longer a general inquiry in relation to the
commission of a criminal offense but has began to focus on the said
person. And of course, if a person has been taken under police custody,
definitely, he may already avail of the rights under section12

Q - Does section 12 apply when a person is under administrative

investigation? Or an investigation being conducted by the Commission
on Audit? Or an investigation being conducted by the Bureau of Custom?
Or the Bureau of Immigration?
A - No, section 12 does not apply to administrative investigation.
Section 12 applies only to an investigation being conducted by police
officers in relation to the commission of a criminal offense. In other
words, if the investigation is not in relation to a criminal offense and,
even if there is a criminal offense but the person is in no way involve in
the criminal offense, section 12 does not apply

Q - What about in section 17, when does the right against self-
incrimination apply?

A - In section 17, the right may be availed of by a person who is

accused of a crime, or even a mere witness who is not an accused may
invoke section 17 when asked a questioned that his answer would
incriminate him. Recent Supreme Court decisions, however, extended
the scope of section 17, that would include administrative investigation
partaking the nature of a criminal proceeding or analogous to a criminal
proceeding

Section 13 – All persons, except those charged with offenses

punishable by reclusion perpetua, when evidence of guilt is strong,
shall, before conviction, be bailable by sufficient sureties, or be
released on recognizance as may be provided by law

The right to bail shall not be impaired even when the

privilege of the writ of habeas corpus is suspended

Excessive bail shall not be required

Q- What are the modes of obtaining immediate release from custody?

A - Petition for Bail or the privilege of the writ of habeas corpus, and
the most recent was the writ of amparo

The right to bail is complimentary to section 14, the right to be

presumed innocent until proven guilty. This is again to level the playing
field and for fairness and justice to the accused because it has already
been determined by the government that indeed a criminal offense has
already been committed and that there is a probable cause that the
accused was the one committed the crime, and therefore, to counter this
position of the government, the constitution declares that the accused
must still be presumed innocent until proven otherwise

Section 14, Article III –

1) No person shall be held to answer for a criminal offense

without due process of law (Section 1 – no person shall be
deprived of life, liberty, and property without due process
of law; Both substantive and procedural, section 14 only
procedural; Section 21 – No person shall be twice put in
jeopardy of punishment for the same offense. If an act is
punished by a law and an ordinance, conviction or
acquittal under either shall constitute a bar to another
prosecution for the same act)

2) In all criminal prosecutions, the accused shall be

presumed innocent until the contrary is proved (the
purpose is to level the playing field, since there was
already a determination of probable cause that the
accused most probably had committed the criminal
offense)

3) And shall enjoy the right to be heard by himself and

counsel (Section 12 – the right to have competent and
independent counsel preferably of his own choice. If the
person cannot afford the services of counsel, he must be
provided with one)

4) To be informed of the nature and cause of the accusation

against him

5) To have a speedy, impartial, and public trial (section 16 –

All persons shall have the right to a speedy disposition of
their cases before all judicial, quasi-judicial, or
administrative bodies)

6) To meet the witnesses face to face

 7) And, to have a compulsory process to secure the
attendance of witnesses and the production of evidence
on his behalf

However, after arraignment, trial may proceed

notwithstanding the absence of the accused provided that
he has been duly notified and his failure to appear is
unjustifiable

The right to be heard – In a very broad sense, in can be understood to

mean the totality of the rights embodied in an adequate criminal
procedural system. The more active role of the accused in expressing
the right to be heard includes three (3) specific rights;

1) The right to present evidence and the right to be present at the trial;
2) The right to be assisted by counsel;
3) The right to compulsory process to compel the attendance of
witnesses in his behalf

An important aspect of the right to be heard is the right to be present at

the trial, from the arraignment all the way to the promulgation of the
decision
Since the last sentence of section 14 allows “trial in absentia,” by the
leave of court, the accused may waive his attendance except when his
presence is needed for purposes of identification

The right to counsel – in section 12, the right to counsel arises

immediately when the person is under investigation by law enforcers in
relation to a commission of an offense. Under section 14, the right to
counsel arises during the arraignment

Take note, however, that unlike the right to counsel under section 12,
the counsel preferably the choice of the person under investigation,
under section 14, counsel need not be the choice of the defendant. What
is important is that there is a counsel assisting him during the
arraignment. Take note, further, that the assistance of a counsel is
mandatory during the arraignment, but after the arraignment and the
trial has began, the assistance of a counsel is no longer mandatory
Like other personal rights, the right to counsel may be waived

In section 12, it is expressly provided that the right to counsel may be

waived on the condition that it must be in writing and assisted by
counsel.

There is no express provision in section 14 does this mean the right

cannot be waived?

The answer is no, like all constitutional rights, the right to counsel may
also be waived by the accused, but the waiver must be clear and must be
coupled with an actual intention to relinquish the right to counsel

In section 12, the waiver must be in writing and assisted by counsel,

otherwise, the court will not accept it

In section 14, however, the waiver may not be in writing, but rather
through an overt act of refusal to be assisted by lawyer, thus, there is no
need for the presence of counsel during the actual waiver

Please take note of this distinction because this matter would be one of
the questions in the final exams. In this regard, please read the case of
People vs Sim Ben, 98 Phil 138,139 (1955)

The description and not the designation of the offense is controlling.

Hence, even if there be an erroneous designation of the offense, the
accused may be validly convicted of the crime described in the
information

Q – May the prosecution realizing some defects in the information

change or amend the information?

A- Section 14 of Rule 110 of the Rules of Court provides –

Amendment or Substitution.

A complaint or information may be amended, in form or substance,

without leave of court, at any time before the accused enters his plea.
After the plea and during trial, a formal amendment may only be made
with leave of court and when it can be done without causing prejudice
to the rights of the accused

Section 18 –

1) No person shall be detained solely by reason of his political

beliefs
2) No involuntary servitude in any form shall exist except as a
punishment for a crime whereof the party shall have been duly
convicted

Section 19 –

1) Excessive fines shall not be imposed, nor cruel, degrading or

inhuman punishment inflicted. Neither shall death penalty be
imposed, unless, for compelling reasons involving heinous
crimes, the Congress hereafter provides for it. Any death
penalty already imposed shall be reduced to reclusion
perpetua
2) The employment of physical, psychological, or degrading
punishment against any prisoner or detainee, or the use of
substandard or inadequate penal facilities under subhuman
conditions shall be dealt by law

Death penalty was imposed under R.A. No. 7659 (1993) complimented
by R.A. No. 8177, the Lethal Injection Law (1993), but suspended by R.A.
No. 9346 (2006)

Section 20 – No person shall be imprisoned for debt or non-

payment of a poll tax

Section 21 – No person shall be twice put in jeopardy of

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

a) Valid complaint or information

b) Filed before a competent court
c) The defendant had already entered a plea
d) Defendant was previously acquitted or convicted or the case
dismissed or otherwise terminated without his express consent

Supervening fact – the subject of sameness of offense is also affected

by the rule that one is not in jeopardy for an offense which is not in
existence at the time of the filing of the charge

Section 22 – No ex post facto law or bill of attainder shall be

enacted

An ex post facto law has been defined as –

1) Which makes an act done criminal and punishes such act but was
not yet a criminal offense when it was done
2) Which aggravates a crime or makes it greater than when it was
committed
3) Which changes the punishment and inflicts greater punishment
that the law annexed to the crime when it was committed
4) Which alters the legal rules of evidence and receives less or
different testimony than the law required at the time of the
commission of the offense in order to convict the defendant

Applying the constitutional right, the Supreme Court has held that the
prohibition applies only to criminal legislation which affects the
substantial rights of the accused. It also applies to procedural law
prejudicial to the accused

The same principle is also embodied in Article 21 of the Revised Penal

Code – no crime or misdemeanor shall be punished by a penalty
which was not established by law prior to its commission

Amendment of an existing law under which a person is being

prosecuted can be applied retroactively to him if the amendment is
favorable to him (R.A. No. 8249 amended P.D. 1866 – Illegal possession
of firearms)

The Supreme Court had adopted a US decision that statutory changes in

the mode of trial or the rules of evidence, which do not deprive the
accused of a defense and which operate only in a limited and
unsubstantial manner to his disadvantage, are not prohibited (Nunez vs
Sandiganbayan, 111 SCRA 449)

A bill of attainder is a legislative act, which inflicts punishment without

judicial trial

For a full understanding of the application of a bill of attainder, please

read the case of People vs Ferrer, 48 SCRA 382 (1972), this is about R.A.
No. 1700, aka Anti-Subversion Act – declaring the CPP as outlawed and
illegal organization and mere membership is punishable