Bill of Rights

A. Concept of Bill of Rights

1. Privacy and autonomy
1. The Bill of Rights establishes the relationship of a person to the State,
and defines the rights of the individual by limiting the lawful powers of the
State. (People v Marti, 1991)
2. The Bill of Rights does not govern relationships between individuals; it
cannot be invoked against the acts of private individuals. (Remegio v
People, 2017)
1. However, the Court allowed the invocation of the right to privacy of
communication by the husband against the wife. Hence, the
documents gathered from the clinic without his consent shall be
inadmissible in evidence, as provided by Sec. 3(2), Art. III. (Zulueta v
CA, 1996)
2. In the case of Dela Cruz v. People, 779 SCRA 34 (2016), involving
civilian port personnel conducting security checks, the Supreme Court
(SC) thoroughly discussed that while the Bill of Rights under Article III
of the 1987 Constitution generally cannot be invoked against the acts
of private individuals, the same may nevertheless be applicable if such
individuals act under the color of a state-related function.
1. One of the arguments presented in the instant petition is that the
search and arrest made on petitioner were illegal and, thus, the
marijuana purportedly seized from him is inadmissible in evidence.
In this relation, it is worth noting that his arresting officers, i.e., BB
Bahoyo and BB Velasquez, are mere Bantay Bayan operatives of
Makati City. Strictly speaking, they are not government agents like
the Philippine National Police (PNP) or the National Bureau of
Investigation in charge of law enforcement; but rather, they are
civilian volunteers who act as “force multipliers” to assist the
aforesaid law enforcement agencies in maintaining peace and
security within their designated areas. Particularly, jurisprudence
described the nature of Bantay Bayan as “a group of male
residents living in [the] area organized for the purpose of keeping
peace in their community[, which is] an accredited auxiliary of the
x x x PNP.”
2. The Supreme Court (SC) is convinced that the acts of the Bantay
Bayan — or any barangay-based or other volunteer organizations
in the nature of watch groups — relating to the preservation of
peace and order in their respective areas have the color of a
state-related function. As such, they should be deemed as law
 enforcement authorities for the purpose of applying the Bill of
Rights under Article III of the 1987 Constitution to them. Miguel
vs. People, 833 SCRA 440, G.R. No. 227038 July 31, 2017.
2. Relation to human rights
1. The Universal Declaration of Human Rights, the International Covenant on
Economic, Social, and Cultural Rights, and the International Covenant on
Civil and Political Rights, suggests that the scope of human rights can be
understood to include those that relate to an individual’s social, economic,
cultural, political and civil relations. These broad concepts are equally
contemplated by the framers of the Constitution in adopting the Bill of
Rights and the creation of the Commission on Human Rights. (Simon v
CHR, 1994)
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B. Due process of law
1. Concept of right to life, liberty, and property
1. Life - this guarantees essentially the right to be alive - upon which the
enjoyment of all other rights is preconditioned. (Mamba v Bueno, 2017)
2. Liberty - the right to exist and the right to be free from arbitrary restraint
or servitude. It is not merely freedom from physical restraint but also the
right to enjoy his facilities, subject only to restraint that is necessary for
the common welfare. (City of Manila v Laguio, 2005)
3. Property - it means anything that can come under the right of ownership
and be the subject of contract.
2. Kinds of due process
1. Substantive
1. Substantive due process refers to the intrinsic validity of a law that
interferes with the person’s life, liberty, or property. Violation of
substantive due process makes the law unconstitutional.
2. Publication of laws is part of substantive due process. (Tañada v
Tuvera)
3. Requisites of substantive due process: (VALID LAW; VALID
GOVERNMENTAL OBJECTIVE; LAWFUL MANNER; LAWFUL
MANES/NOT OPPRESSIVE)
1. There must be a valid law, upon which it is based; (VALID LAW)
2. The law must have been passed or approved to accomplish a valid
governmental objective; (VALID GOVERNMENTAL OBJECTIVE)
3. The objective must be pursued in a lawful manner; (LAWFUL
MANNER)
4. The law, as well as the means to accomplish the objective, must
be valid and not oppressive. (LAW/MEANS VALID NOT
OPPRESSIVE)
 1. The law, as well as the means to accomplish the objective,
must be valid and not oppressive. (LAW/MEANS VALID NOT
OPPRESSIVE)Hence, an invalid exercise of police power is
unconstitutional because it violates substantive due process.
In the Bar, use the requisites of police power instead.
2. GITO: To determine if the substantive due process is
complied with, APPLY THE POLICE POWER TEST.
3. The same are the requisites for a valid ordinance.
4. Tests of judicial scrutiny in relation to substantive due process:
1. Strict scrutiny - there must be (1) a compelling State interest,
and (2) the means used is the least restrictive means to protect
such interest or the means chosen is narrowly tailored to
accomplish the interest.
2. Intermediate scrutiny - there must be (1) an important
governmental objective and (2) the means is substantially related
to the achievement of such objective.
3. Rational basis - the test requires only that (1) there be a
legitimate government interest and that (2) there is a reasonable
connection between it and the means employed to achieve it.
(SPARK v Quezon City, 2017)
1. Strict scrutiny - applies when it interferes with fundamental
rights, or burdens suspect classes, such as protection of
public health and safety, regulation of violent crime, the
requirements of national security and military necessity, and
respect for fundamental rights. (Commonly used test because
laws are not challenged unless fundamental rights are
violated)
2. Intermediate scrutiny - does not involve suspect classes or
fundamental rights, such as gender or legitimacy
3. Rational basis - applies to all other subjects not covered by
the first two tests.
1. In the Bar, you can use either the requisites of police
power or the tests of judicial scrutiny.
5. NOTE: The applicable requisites must change depending on the
categorial question. Do not use the tests of police power if the
question is “was due process violated.”
6. The Mayor of Davao City approved an ordinance imposing a ban
against aerial spraying of pesticides as an agricultural practice by all
agricultural entities within Davao City. The ordinance states that said
ban will take effect 3 months after the said publication in the
newspaper of general circulation. The agricultural associations, as
well as agricultural corporations, are now challenging the said
ordinance for being violative of the Due Process Clause for being
 oppressive given that said corporations only has 3 months to comply
considering that the shift to another method from aerial spraying
requires large costs and long periods of time. Was there a violation of
the Due Process Clause in the implementation of the said ordinance?
1. Yes, there is a violation of the Due Process Clause for being
oppressive. In order to declare one as a valid piece of local
legislation, it must also comply with the following substantive
requirements, namely:
1. it must not contravene the Constitution or any statute;
2. it must be fair, not oppressive;
3. it must not be partial or discriminatory;
4. it must not prohibit but may regulate trade;
5. it must be general and consistent with public policy; and
6. it must not be unreasonable.
2. The ordinance is unreasonable and oppressive in that it sets the
effectiveness of the ban at three months after publication of the
ordinance. The impossibility of carrying out a shift to another
mode of pesticide application within three months can readily be
appreciated given the vast area of the affected plantations and
the corresponding resources required therefor. Thus, the
conversion to other methods will not be completed in three
months. This would result to affected entities to face the
consequences of the ban. (Mosqueda v. Pilipino Banana Growers
& Exporters Association, G.R. No. 189185, August 16, 2016)
2. Procedural
1. Procedural due process refers to the regular methods of procedure
to be observed before one‘s life, liberty, or property can be taken
away. Violation of this makes the proceeding invalid.
2. The minimum requirements are notice and hearing. (Ynot v IAC,
1987)
3. The twin rights may be dispensed with, when there is:
1. A conclusive presumption, or
2. An urgent need for immediate action, such as:
1. Summary abatement of nuisance per se, i.e., mad dog on the
loose, pornographic materials, contaminated meat, narcotic
drugs, filthy restaurants
2. Preventive suspension of a public officer charged with
violation of AGCP
3. Cancellation of passport of a person sought fo criminal
prosecution
4. Issuance of ex parte TRO with a period of 72 hours
4. Judicial
1. Judicial power - That the impartial court or tribunal trying the
 1.
case is properly clothed with judicial power to hear and determine
the matter before it;
2. Jurisdiction over person - That jurisdiction is lawfully acquired
by it over the person of the accused;
3. Opportunity to be heard - That the accused is given an
opportunity to be heard. To be heard does not mean verbal
arguments in court, as one may be heard also through pleadings;
4. Judgment lawful hearing - That judgment is rendered only upon
lawful hearing. (Allonte vs Savellano)
5. Administrative
1. Presentation
1. Right to present - it includes right to present one‘s case and
submit evidence to support thereof. A trial type hearing is not
necessary;
2. Independent consideration - The tribunal or body or any of
its judges must act on its own Independent consideration of
the law and facts of the controversy;
3. Consider evidence - The tribunal must consider the evidence
Presented;
2. Decision
1. Substantial evidence - Evidence presented must be
substantial, which means relevant evidence as a reasonable
mind might accept as adequate to support a conclusion;
2. Support - The decision must have something to support
itself;
3. Based evidence presented - The decision must be based on
evidence presented during hearing or at least contained in the
record and disclosed by the parties; and
4. Know the issues and reasons -The decision must be
rendered in a manner that the parties can know the various
issues involved and the reason for the decision rendered (Ang
Tibay v. Court of Industrial Relations).
3. Administrative due process cannot be fully equated with due
process in its strict judicial sense, for in the former a formal or trial
type hearing is not always necessary, and technical rules of
procedure are not strictly applied.
1. The essence of due process is to be heard, and, as applied to
administrative proceedings, this means a fair and reasonable
opportunity to explain one’s side, or an opportunity to seek a
reconsideration of the action or ruling complained of. Nestlè
Philippines, Inc. v. Benny A. Puedan, Jr., et al., G.R. No.
220617, January 30, 2017.
4. Due process in administrative proceedings does not require the
 4.
submission of pleadings or a trial-type of hearing.
1. Due process is satisfied if the party is duly notified of the
allegations against him or her and is given a chance to present
his or her defense. Furthermore, due process requires that the
proffered defense should have been considered by the
tribunal in arriving at its decision. Bangko Sentral ng
Pilipinas v. Commission on Audit, G.R. No. 213581,
September 19, 2017.
6. Educational Institution
1. Informed charge
1. Informed writing - The students must be informed in
WRITING of the nature and cause of any accusation against
them;
2. Right to answer counsel - They shall have the right to
answer the charges against them with the assistance of
counsel, if desired:
2. Informed evidence
1. Informed evidence - They shall be informed of the evidence
against them;
2. Right to adduce evidence - They shall have the right to
adduce evidence in their own behalf; and
3. Evidence duly considered - The evidence must be duly
considered by the investigating committee or official
designated by the school authorities to hear and decide the
case (ADMU vs Judge Capulong).
7. Preliminary investigation
1. There is no law or rule requiring the investigation prosecutor to
furnish the respondent with the copies of the counter-affidavits of
co-respondents.
2. The rights of a respondent in a preliminary investigation are
limited to those granted by procedural law.
1. Justice J.B.L. Reyes, writing for the Court, emphatically
declared in Lozada v. Hernandez, that the "rights conferred
upon accused persons to participate in preliminary
investigations concerning themselves depend upon the
provisions of law, rather than upon the phrase ‘due process of
law’." This reiterates Justice Jose P. Laurel’s oft-quoted
pronouncement in Hashim v. Boncan that "the right to a
preliminary investigation is statutory, not constitutional." In
short, the rights of a respondent ina preliminary investigation
are merely statutory rights, not constitutional due process
rights.
3. Further, a preliminary investigation is not a quasi-judicial
 3.
proceeding since "the prosecutor in a preliminary investigation
does not determine the guilt or innocence of the accused.
(Bondoc v Tan, 2010)
1. Hence, it is not part of constitutional due process.
8. Extradition
1. Neither the treaty nor the extradition law precludes these rights
from a prospective extradite. An application of the basic twin due
process rights of notice and hearing will not go against the treaty
or the implementing law (Sec. of Justice v. Lantion).
9. Deportation
1. Criminal procedure - Although a deportation proceeding does
not partake of the nature of a criminal action, considering that it is
a harsh and extraordinary administrative proceeding affecting the
freedom and liberty of a person, the constitutional right of such
person to due process should not be denied. Thus, the provisions
of the Rules of Court of the Philippines particularly on criminal
procedure are applicable to deportation proceedings (Lao Gi
Chia‖, Sr. v. CA).
10. Two criminal Informations was filed against W, X, Y, and Z charging
them with two counts of carnapping for allegedly holding up and
robbing M taking his motorcycle, Seiko watch, t-shirt, and wallet. M
was invited by the police to identify his assailants. Prior to said
presentation, M had not described his assailants to the police. At the
police station, the police presented to M four (4) persons to be
identified. M pointed to X, Y and Z as the persons who robbed him.
The RTC found X and Y guilty of carnapping on the sole basis of M’s
out-of-court identification. X filed an appeal arguing that the out-of-
court identification was not valid as it was conducted through a
police show-up, not a lineup, since only the four (4) suspects were
presented to M for identification. X argues that the procedure
conducted by the police officers in identifying the perpetrators of
the crime charged is seriously flawed and gravely violated the X's
right to due process, as it denied them their right to a fair trial to the
extent that their in-court identification proceeded from and was
influenced by impermissible suggestions. Is X correct?
1. Yes, X is correct. An out-of-court identification such as a police
show-up is inadmissible if it is tainted with improper suggestions
by police officers. Due process was not complied in the out-of-
court identification of the sole witness as it did not pass the
totality of circumstances test.
2. The court citing People v. Teehankee, Jr., stated that out-of-court
identification is conducted by the police in various ways. Courts
have fashioned out rules to assure its fairness and its compliance
 2.

with the requirements of constitutional due process. In resolving

the admissibility of and relying on out-of-court identification of
suspects, courts have adopted the totality of circumstances test
where they consider the following factors, viz: (1) the witness'
opportunity to view the criminal at the time of the crime; (2) the
witness' degree of attention at that time; (3) the accuracy of any
prior description given by the witness; (4) the level of certainty
demonstrated by the witness at the identification; (5) the length
of time between the crime and the identification; and, (6) the
suggestiveness of the identification procedure.
3. Here, the Court ruled that the identification did not pass the
totality of circumstances test to comply with due process for the
following reasons the out-of-court identification was tainted with
improper suggestion. The Court found that the identification was
tainted with improper suggestion for the following reasons: M was
invited by the police to identify his assailants knowing that he
would meet his assailants; The police showed four people which is
the same number of people that attacked him; and, there was no
prior description of his assailants, it was highly likely that M's
identification was tainted with apparent suggestiveness (Concha
v. People, G.R. No. 208114, October 3, 2018, J. Leonen).
11. X filed a complaint against Judge Y for nullifying X’s marriage
without X even knowing about it. Based on the records, no hearing
was conducted on the case at all. Judge Y was dismissed from the
service in another case dishonesty, gross ignorance of the law, gross
misconduct, and incompetency for, among others, disposing of
nullity and annulment marriages with "reprehensible" haste. Judge Y
died on April 10, 2018 from acute respiratory failure while the
administrative complaint was pending. The Office of the Court
Administrator (OCA) recommended that the case be dismissed
because continuing would violate due process. Is the OCA correct?
1. Yes. Administrative proceedings require that the respondent be
informed of the charges and be given an opportunity to refute
them. Even after judgment is rendered, due process requires that
the respondent not only be informed of the judgment but also be
given the opportunity to seek reconsideration of that judgment.
This is the true definition of the opportunity to be heard.
2. The opportunity to be heard can only be exercised by those who
have resigned or retired. The reason is obvious: They are still
alive. Even if they cease to hold public office, they can still be
made aware of the proceedings and actively submit pleadings.
Dead respondents have no other recourse. They will never know
how the proceedings will continue, let alone submit responsive
 pleadings. They cannot plead innocence or beg clemency. Death
forecloses any opportunity to be heard. To continue with the
proceedings is a violation of the right to due process (Flores-
Concepcion v. Castañeda, A.M. No. RTJ-15-2438 (Resolution),
Sept. 15, 2020, J. Leonen).
12. Notice and hearing are the essential requirements of procedural due
process. Yet, there are many instances under our laws in which the
absence of one or both of such requirements is not necessarily a
denial or deprivation of due process.
1. The immobilization of illegally parked vehicles by clamping the
tires was necessary because the transgressors were not around at
the time of apprehension. Under such circumstance, notice and
hearing would be superfluous. Nor should the lack of a trial-type
hearing prior to the clamping constitute a breach of procedural
due process, for giving the transgressors the chance to reverse
the apprehensions through a timely protest could equally satisfy
the need for a hearing. In other words, the prior intervention of a
court of law was not indispensable to ensure a compliance with
the guaranty of due process. Valentino L. Legaspi v. City of
Cebu, G.R. Nos. 159110 & 159692, December 10, 2013.
13. R.A. 9262 is not violative of the due process clause of the
Constitution.
1. Just like a writ of preliminary attachment which is issued without
notice and hearing because the time in which the hearing will take
could be enough to enable the defendant to abscond or dispose
of his property, in the same way, the victim of Violence Against
Women and Children may already have suffered harrowing
experiences in the hands of her tormentor, and possibly even
death, if notice and hearing were required before such acts could
be prevented. (Garcia v Drilon, 2013)
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C. Equal protection of laws
1. Concept
1. When is equal protection clause violated?
1. When the law makes a classification, when there should have been
none.
2. When the law does not make a classification, when there should have
been one.
2. Requisites for valid/reasonable classification (SGEE)
1. Substantial distinction which makes for real differences
2. Germane to the purpose of law
 3. Not limited to Existing conditions
4. Applies Equally to all members of the same class.
(People v Cayat)
3. Levels of scrutiny to determine if classification/distinction is reasonable
1. Strict scrutiny test
2. Intermediate scrutiny test
3. Rational basis test
1. The notes mentioned in substantive due process shall apply here.
2. In the Bar, if there is valid classification, we stick to the requisites.
3. In the Bar, if there is invalid classification, we stick to the requisites. In
addition, we use the levels of scrutiny to prove the absence of
substantial distinction.
4. Mendoza v People, 2011
1. RA 9903 - granting condonation to employer with delinquent contributions
or pending cases for their delinquencies and who pay their delinquencies
within 6 month from the effectivity of law.
2. Why are those who want to pay outside the period not allowed to do so?
1. There is substantial distinction between those who were able to pay
within the period and those who want to pay outside the period
2. In limiting the benefits of RA No. 9903 to delinquent employers who
pay within the six (6)-month period, the legislature refused to allow a
sweeping, non-discriminatory condonation to all delinquent
employers, lest the policy behind RA No. 8282 be undermined.
3. If you do not follow the condition provided by law, you are not entitled
to the benefits.
5. Quinto v COMELEC, 2010
1. Why are appointive officials ipso facto resigned when COC is filed, while
elective officials are not ipso facto resigned?
2. There is substantial distinction between these two officials.
3. The nature of the function of elective officials is to be engaged in partisan
political activity. The same is not true for appointive officials.
6. Goldenway v Equitabe PCI, 2013
1. Redemption period of property owners of mortgaged real property, i.e., 1
year for natural persons, while 3 months for juridical persons.
2. There is substantial distinction between juridical persons and natural
persons.
3. The property mortgaged by juridical persons are for business purposes,
while it is residential purposes for natural persons.
7. Garcia v Drilon, 2013
1. RA 9262 - VAWC, in favoring women over men as victims of violence and
abuse.
2. There are also men who are victims of abuse, so why is VAWC exclusive to
women?
 3. The distinction lies on the unequal power relationship between women and
men. The fact that women are more likely than men to be victims of
violence, and the wide spread gender bias and prejudice against women
all make real differences that justify classification under the law.
8. Imbong v Ochoa, 2014
1. Conscientious objector - government health workers are duty-bound to
follow RH law despite being offensive to their religion, while private health
workers are allowed to not follow RH law.
2. This is unconstitutional.
3. There is no substantial distinction between public health workers and
private health workers.
9. PJA v Prado
1. Why is franking privilege free for executive and legislative, while it is
onerous for judiciary?
2. There is no substantial distinction .
10. BOC Employees v Teves, 2011
1. The system of rewards and sanctions provided for under the Attrition law
for the benefit of employees of BIR and BOC.
2. The Attrition law provides that BIR and BOC employees can only have
bonuses if they meet their quotas.
3. Why is it Attrition Law is limited only to BOC and BIR, and not to other
government employees?
4. Because they perform a special function which is collect taxes, the life
blood of the government.
5. Hence, there is substantial distinction between BIR/BOC employees and
other government employees.
11. Ormoc Sugar v Treasurer of Ormoc City
1. The ordinance imposing 1% per export sale of any and all production of
sugar milled at Ormoc Sugar Co.
2. Is this invalid? Yes.
3. It is limited to existing conditions only. It does not apply to future
conditions, i.e., when other sugar companies build sugar mills in the
future.
4. Further, there is no substantial distinction between Ormoc Sugar Co, and
other sugar milling companies which will be organized in the future.
12. Serrano v Gallant, 2009
1. “Unexpired portion of his employment contract OR for 3 months for every
year of unexpired term, whichever is less.”
2. There is no substantial distinction between OFWs with less than 1 year
unexpired term, and OFWs with more than 1 year unexpired term.
3. There is no reason why those with longer unexpired term shall have a
LESSER entitlement than those with shorter unexpired term.
4. Hence, the phrase “for 3 months for every year of unexpired term” is held
 4.
unconstitutional, because it violations equal protection of law.
13. Can the Congress re-enact a law which was declared unconstitutional by the
Court?
1. No.
2. Once the Court declares it unconstitutional, it cannot be re-enacted,
unless there is change of relations between the parties.
3. Thus, when a law or a provision of law is null because it is inconsistent
with the Constitution, the nullity cannot be cured by reincorporation or
reenactment of the same or a similar law or provision. A law or provision of
law that was already declared unconstitutional remains as such unless
circumstances have so changed as to warrant a reverse conclusion.
(Sameer v Cabiles, 2014, Leonen)
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D. Right against unreasonable searches and seizures
1. Concept of privacy (not precisely stated in Art. III)
1. The right to privacy has been concisely defined as the right to be left
alone. It has also been defined as the right of a person to be free from
unwarranted publicity, and the right to live without interference by the
public, in matters with which the public is not necessarily concerned.
(Spouses Hing v Choachuy, 2013)
2. What are included in right to privacy?
1. Locational or situational privacy - right to move without their location
being disclosed
2. Decisional Privacy – right to independence in making certain
important decisions. (Imbong v Ochoa, 2014)
3. Informational Privacy – right in avoiding of disclosure of personal
matters, i.e., private information and surveillance
(Disini v Sec. of Justice; Spouses Hing v Choachuy; Data Privacy Act)
3. How to determine if right to privacy was violated? “Reasonable
expectation of privacy”
1. The "reasonable expectation of privacy" test is used to determine if
the right to privacy was violated.
2. It involves a two-part test:
1. Subject test (individual) - the individual, by his conduct, had
expectation of privacy; and
2. Object test (society) - the society recognizes that his
expectation is reasonable. (Ople v Torres; Vivares v St Therese
College)
1. As example, 1) by posting photos viewable to friends, there is
no expectation of privacy, and 2) the society does not
recognize the expectation as reasonable. Hence, the photos
 1.

obtained shall be admissible in evidence, since the right to

privacy was not violated.
4. Intrusion, When Allowed (Gathered from right to privacy in comm/corres)
1. By lawful order of the court; or
1. Probable cause, among others in Sec. 2, should be followed by
the court to allow intrusion.
2. Particularity of description is needed for written correspondence,
3. However, for wire-taps and the like, there is no need to describe
the content. However, identity of the person or persons whose
communication is to be intercepted, the offense or offenses
sought to be prevented, and the period of the authorization given
should be specified.
4. That a law is required before an executive officer could intrude on
a citizen’s privacy rights is a guarantee that is available only to
the public at large but not to persons who are detained or
imprisoned. Hence, pre-trial detainees and convicted prisoners
have a diminished expectation of privacy rights.
1. Hence, the items coming to or from the prisoners are subject
to reasonable measures to secure the safety of the detainee
and the jail and to prevent his escape. (Alejano v. Cabuay,
2005)
2. When public safety or order requires otherwise, as may be provided
by law. (Sec. 3(1), Art. III)
5. For public figures, the right to privacy is NOT absolute
1. A limited intrusion into a person's privacy has long been regarded as
permissible where (1) that person is a public figure and (2) the
information sought to be elicited from him or to be published about
him constitute matters of a public character.
2. The interest sought to be protected by the right of privacy is the right
to be free from the wrongful publicizing of the private affairs and
activities of an individual which are outside the realm of legitimate
public concern (Ayer Productions PTY Ltd. V. Capulong).
1. Hence, the right to privacy of a public officer is not violated if the
media publishes an article regarding anomalies in his office.
However, it is violated if the media does the same regarding his
family problems.
6. Right of privacy v Freedom of Access to Information
1. The Court held that personal matters are exempt or outside the
coverage of the people’s right to information on matters of public
concern. The data treated as “strictly confidential” under EO 420
being matters of public concern, these data cannot be released to the
public or the press. (Kilusang Mayo Uno v Director-General, NEDA,
2006)
 7. Other provisions in the Constitution, laws, and rules which tackle privacy
1. Art. III, Sec. 1 – Due Process Clause
2. Art. III, Sec. 2 – Right against unreasonable searches and seizure
3. Art. III, Sec. 3 – Privacy of communication and Correspondence
4. Art. III, Sec. 8 – Right to Form Association
5. Art. III, Sec. 6 – Liberty of Abode and travel
6. Art. III, Sec. 17 – Right Against Self Incrimination
7. The Civil Code punishes the person meddling and prying into the
privacy of another. (Art. 26, NCC)
8. Invasion of privacy is an offense in special laws like the Data Privacy
Act, the Anti-Wiretapping Law, the Secrecy of Bank Deposits Act,
Intellectual Property Code, and Anti-Photo and Video Voyeurism Act.
9. The Rules of Court on privileged communication likewise recognize
the privacy of certain information (Ople vs Torres).
2. Concept of search
1. The Constitutional guarantee does NOT prohibit all forms of search and
seizures. It is only directed against those which are UNREASONABLE.
(Veridiano v People, 2017, Leonen)
1. To be reasonable, there must be:
1. A valid warrant, or
2. A valid warrantless search/arrest.
2. The right to be secure is available to aliens and juridical persons.
(Stonehill v Diokno)
3. The right to be secure is a personal right. It may be invoked only by the
person entitled to it. Further, it can only be waived by him. (Stonehill v
Diokno)
4. The protection against unreasonable searches and seizures cannot be
extended to acts committed by private individuals, without intervention of
police officers. (People v Marti)
1. Example is search conducted by security guards of private
establishments.
2. However, search by barangay tanod is covered by Sec. 2, because he
is an agent of person in authority.
5. As a rule, only the judge has the power to issue a warrant.
1. As an exception, the Bureau of Immigration may issue warrants to
carry out a final finding of a violation, such as a legal order of
deportation issued by the Commissioner of Immigration, in pursuance
of a valid legislation. Hence, Sec. 2 does not extend to deportation
proceedings. (Morano v Vivo)
3. Requisites of a valid warrant (PPOP)
1. Probable cause
2. Determined Personally by a Judge after examination
3. Under Oath or affirmation of the complainant and the witnesses he may
3.
produce
4. Particularly describing the place to be searched and the person or things
to be seized. (Sec. 2, Art. III)
1. Probable cause:
1. Probable cause is merely “probability” and not “absolute
certainty.”
2. SW - facts and circumstances that would lead a reasonably
prudent man to believe that an offense has been committed and
that the objects sought in connection with that offense are in the
place to be searched. (Sy Tan v Sy Tiong Gue, 2010)
3. WOA - facts and circumstances that would lead a reasonably
prudent man to believe that an offense has been committed by
the person sought to be arrested. (Webb v De Leon, 1995)
2. For search warrant; personal examination:
1. The personal examination under oath or affirmation must be in
writing and in the form of searching questions and answers.
1. The oath must be made in such a manner that perjury could
be charged and the affiant be held liable for damages caused.
(Alvarez vs CFI)
1. The search questions and answers must be probing and
exhaustive and not merely routinary or pro forma. (Roan v
Gonzales, 1986)
2. Further, the complainant and/or witnesses must be examined on
facts personally known to them.
3. Lastly, the judge must attach to the record the sworn statements
and the affidavits submitted. (Sec. 5, Rule 126; Prudente v Judge
Dayrit, 1989)
3. For warrant of arrest; personal evaluation:
1. The judge need not personally examine the complainant and the
witnesses he may produce.
2. It is sufficient if he personally evaluates the report and the
supporting documents submitted by the prosecutor regarding the
existence of probable cause.
3. If on the basis thereof, the judge finds no probable cause, he may
disregard the report and require the submission of supporting
affidavits to aid him in arriving in the concluding the existence of
probable cause. (Soliven v Makasiar, 1988)
1. For warrant of arrest, probable cause during preliminary
investigation can be established with hearsay evidence.
(Estrada v Ombudsman, 2015)
2. Hence, the judge may personally evaluate a fiscal’s report
containing hearsay evidence.
3. To recall, in search warrant, the complainant/witnesses must
 3.
be examined on facts personally known to them
4. Particularity
1. For search warrant:
1. It was held that the Constitution does not require the warrant
to name the person who occupies the described premises.
(Miller v Sigler)
2. The test of particularity for the place to be searched is as
follows: whether the description is sufficient and descriptive
enough to prevent a search of other premises located within
the surrounding area or community. (Diaz v People, 2020)
3. The tests of particularity of the things to be seized are as
follows:
1. When the description described therein is as specific as
the circumstances will ordinarily allow;
2. When the description expresses conclusion of fact, not of
law, by which the warrant officer may be guided in making
the searches and seizures;
3. When the things described are limited to those which
bear direct relation to the offense for which the warrant is
being issued. (Bache & Co. v Ruiz, 1971; Uy v BIR, 2000)
2. For warrant of arrest
1. It is said to particularly describe the person to be seized, if it
contains some description, which will enable the officer to
identify the accused. (People v Veloso, 1925)
3. What is a “general” warrant?
1. General warrant is defined as a warrant that is not particular
as to the place to be searched or the person or the property
to be seized. Hence, it gives the officer the discretion over
which place to search and the persons or properties to seize.
(World Wide Web Corporation v People, 2014)
4. What is a “scatter-shot” warrant?
1. A “scatter-shot warrant” is a search warrant issued for more
than one (1) specific offense. It also violates the constitutional
requirement of particularity. (Tambasen vs. People,1995).
5. The search warrant is merely for dangerous drugs. However, the
police officers also found a firearm in the place searched. Is the
firearm admissible as evidence?
1. No. The search warrant is limited to those things particularly
described.
2. What happens to the firearm? It would merely be confiscated
for being a contraband. (Gabriel)
5. No presumptions of regularity are to be invoked in aid of the process
when an officer undertakes to justify under it. (Uy v BIR, 2000)
 6. A search warrant is severable; lack of particularity with certain things
does not render the others void. (Uy v BIR, 2000)
7. The judge issued warrant of arrest when the prosecution only
submitted the resolution and affidavits of the complainant. The
prosecutor did not attach copies of the affidavit of witnesses and the
counter-affidavit of the respondent. The judge committed grave abuse
of discretion. (Okabe v Judge Gutierrez, 2004)
4. Warrantless Searches and Seizures
1. Consented searches
1. There must be clear and convincing evidence of waiver. Otherwise,
there is no waiver. (Caballes v CA, 2002)
2. The police officer must communicate this clearly and in a language
known to the person who is about to waive his or her constitutional
rights. There must be an assurance given to the police officer that the
accused fully understands his or her rights. It is not sufficient that the
police officer introduce himself, or be known as a police officer.
People vs. Cogaed, 731 SCRA 427, G.R. No. 200334 July 30,
2014, Leonen
3. To determine if there is “consent,” the totality of the circumstances
must be determined, such as
1. the age of the defendant;
2. whether the defendant was in a public or a secluded location;
3. whether the defendant objected to the search or passively looked
on;
4. the education and intelligence of the defendant;
5. the presence of intimidating/coercive police procedures, and
others.
4. In Veridiano v People, 2017, Leonen, mere passive conformity or
silence to the warrantless search is only an implied acquiescence,
which amounts to no consent at all. The presence of intimidating/
coercive environment negates the claim that petitioner consented to
the warrantless search.
5. In People v Cogaed, 2014, Leonen, Cogaed's silence or lack of
aggressive objection was a natural reaction to a coercive environment
brought about by the police officer's excessive intrusion into his
private space. The prosecution and the police carry the burden of
showing that the waiver of a constitutional right is one which is
knowing, intelligent, and free from any coercion. In all cases, such
waivers are not to be presumed.
6. NOTE: In the Bar, lean towards NO consent, since there is always a
presence of intimidating or coercive environment brought about by
the police.
2. Search incident to lawful arrest (Rule 126, Sec. 13)
 1. A person lawfully arrested may be searched for dangerous weapons
or anything which may have been used or constitute proof in the
commission of an offense without a search warrant.
2. The cardinal rule on searches incidental to lawful arrest is that there
first be a lawful arrest before a search can be made. (Vaporoso v
People; In the Matter of Petition for Writ of Amparo of Vivan A.
Sanchez, 2019, Leonen) In other words, a valid arrest must precede
the search, the process cannot be reversed.
3. The search may be made only within the permissible area of search,
or the place within the immediate control of the person being
arrested (Espano vs CA).
1. How to determine if there is a lawful arrest? We check if there is 1)
a warrant of arrest, 2) an in flagrante delicto arrest, or 3) a hot
pursuit. If none is present, the search incidental to the arrest is
invalid because the arrest was UNLAWFUL.
2. What if the search happens first before the arrest was made? The
rule on search incident to lawful arrest shall NOT apply. For the
search to become valid, the peace officer must show that another
exception, such as stop-and-frisk, was present.
3. The phrase "within the area of his immediate control" means the
area from within which he might gain possession of a weapon or
destructible evidence. A gun on a table or in a drawer in front of
one who is arrested can be as dangerous to the arresting officer
as one concealed in the clothing of the person arrested.
4. Such warrantless search obviously cannot be made in a place
other than the place of arrest. In Espano v CA, where the accused
was outside the apartment unit and in the act of delivering to the
poseur- buyer the bag of shabu — and the apartment unit was not
even his residence but that of his girlfriend — the inside of the
apartment unit was no longer a permissible area of search, as it
could not be said to be within his reach and immediate control.
The warrantless search therein was, therefore, unlawful.
3. Stop-and-frisk
1. When there is a genuine reason (to stop-and-frisk), in light of the
police officer‘s experience and surrounding conditions, to warrant
a belief that the person detained is committing a crime. A mere
suspicion or a hunch will not validate a stop-and-frisk (Malacat vs
Court of Appeals).
2. For a valid stop and frisk search, this Court instructed in Manibag v
People that the arresting officer should have personally observed at
least two (2) or more suspicious circumstances. A reasonable
inference must be deduced from the totality of circumstances to
justify further investigation by the arresting officer. (In the Matter of
 Petition for Writ of Amparo of Vivan A. Sanchez, 2019, Leonen)
Without 2 or more suspicious circumstances, the search was not
based on a genuine reason.
3. Stop-and-frisk only extends to bodily searches or limited protective
search of outer clothing for weapons. (People v Chua)
1. Hence, the bag carried by the person searched is NOT included.
4. Search occurs BEFORE the arrest.
5. Application of Stop-and-frisk to some cases
1. In People v Cogaed, 2016, Leonen, the police officers received
information that a certain Marvin Buya would be transporting
marijuana. A passenger jeepney passed through the checkpoint
set up by the police officers. The driver then disembarked and
signaled that two (2) male passengers were carrying marijuana.
The police officers approached the two (2) men, who were later
identified as Victor Cogaed and Santiago Dayao, and inquired
about the contents of their bags. Upon further investigation, the
police officers discovered three (3) bricks of marijuana in
Cogaed's bag. In holding that the "stop and frisk" search was
invalid, this Court reasoned that "[t]here was not a single
suspicious circumstance" that gave the police officers genuine
reason to stop the two (2) men and search their belongings.
Cogaed did not exhibit any overt act indicating that he was in
possession of marijuana.
2. In Veridiano v People, 2017, Leonen, Veridiano was a mere
passenger in a jeepney who did not exhibit any act that would give
police officers reasonable suspicion to believe that he had drugs
in his possession. Reasonable persons will act in a nervous
manner in any check point. There was no evidence to show that
the police had basis or personal knowledge that would reasonably
allow them to infer anything suspicious. (Veridiano v People, 2017,
Leonen)
1. Further, this cannot be considered as a valid search in
checkpoints because in checkpoints, only VISUAL search is
allowed.
2. Lastly, this cannot be considered as an extensive search of
moving vehicle because there is no PROBABLE cause that the
passengers committed a crime.
4. Visual search at checkpoints
1. In Valmonte v. De Villa, the Court held that between the inherent right
of the state to protect its existence and promote public welfare and an
individual's right against a warrantless search which is however
reasonably conducted, the former should prevail.
2. In Valmonte v. De Villa, this Court clarified that "[f]or as long as the
 2.
vehicle is neither searched nor its occupants subjected to a body
search, and the inspection of the vehicle is limited to a visual
search, said routine checks cannot be regarded as violative of an
individual's right against unreasonable search[es]." Thus, a search
where an "officer merely draws aside the curtain of a vacant vehicle
which is parked on the public fair grounds, or simply looks into a
vehicle, or flashes a light therein" is not unreasonable.
5. Extensive searches of moving vehicles (stop-and-search)
1. The extent of routine inspections must be limited to a visual search.
Routine inspections do not give law enforcers carte blanche to
perform warrantless searches
2. However, an extensive search may be conducted on a vehicle at a
checkpoint when law enforcers have probable cause to believe that
the vehicle's passengers committed a crime or when the vehicle
contains instruments of an offense.
3. Law enforcers cannot act solely on the basis of confidential or tipped
information. A tip is still hearsay no matter how reliable it may be. It is
not sufficient to constitute probable cause in the absence of any other
circumstance that will arouse suspicion.
1. In Veridiano v People, 2017, Leonen, the extensive search
conducted by the police officers exceeded the allowable limits of
warrantless searches. They had no probable cause to believe that
the accused violated any law except for the tip they received.
They did not observe any peculiar activity from the accused that
may either arouse their suspicion or verify the tip. Moreover, the
search was flawed at its inception. The checkpoint was set up to
target the arrest of the accused.
6. Visual search and Stop-and-search
7. Stop-and-search (extensive search in moving vehicle) is different
from stop-and-frisk.
Visual Search Stop-and-search
No probable cause, just to enforce There is probable cause that the
public order passengers committed an offense
Visual search Extensive search
Stop-and-search (extensive search Stop-and-frisk
in moving vehicle)
There is probable cause that the There is genuine reason to warrant a
passengers committed an offense belief that the person is committing a
crime.
Probable cause is defined as facts and The commission of the offense need
circumstances that a reasonable not be obvious to the ordinary man,
prudent man would believe that a but a seasoned police officer.
crime has been committed by the
person sought to be arrested.
The search may extended within the The search only extends to bodily
immediate control of the person. searches or limited protective search
There is probable cause that the There is genuine reason to warrant a
passengers committed an offense belief that the person is committing a
crime.
Probable cause is defined as facts and The commission of the offense need
circumstances that a reasonable not be obvious to the ordinary man,
prudent man would believe that a but a seasoned police officer.
crime has been committed by the
person sought to be arrested.
The search may extended within the The search only extends to bodily
immediate control of the person. searches or limited protective search
of the outer clothing for weapons.
There must be a lawful arrest first There must be a search first before
before there is a search. there is arrest.
8. Customs searches
1. There are reasonable searches because of heightened security. In
Dela Cruz v. People, the search conducted on the accused was
considered valid because it was done in accordance with routine
security measures in ports. (CUSTOMS search)
2. However, the rule is not available in dwelling places.
3. The Tariff and Customs Code does not require said warrant in the
instant case. The Code authorizes persons having police authority
under Section 2203 of the Tariff and Customs Code to enter, pass
through or search any land, inclosure, warehouse, store or building,
not being a dwelling house; and also to inspect, search and examine
any vessel or aircraft and any trunk, package, box or envelope or any
person on board, or stop and search and examine any vehicle, beast
or person suspected of holding or conveying any dutiable or
prohibited article introduced into the Philippines contrary to law,
without mentioning the need of a search warrant in said cases. But in
the search of a dwelling house , the Code provides that said "dwelling
house may be entered and searched only upon warrant issued by a
judge or justice of the peace. (People vs Mago)
9. Port authorities
1. Routine baggage inspections conducted by port authorities, although
done without search warrants, are not unreasonable searches per se.
Constitutional provisions protecting privacy should not be so literally
understood so as to deny reasonable safeguards to ensure the safety
of the traveling public. (Dela Cruz v. People, G.R. No. 209387,
[January 11, 2016], Leonen)
10. Airport searches
1. RA 6235, Sec. 9 provides “Every ticket issued to a passenger by the
airline or air carrier concerned shall contain among others the
following condition printed thereon: "Holder hereof and his hand-
carried luggage(s) are subject to search for, and seizure of, prohibited
materials or substances. Holder refusing to be searched shall not be
allowed to board the aircraft," which shall constitute a part of the
 contract between the passenger and the air carrier.”
11. Conduct of aerial target zoning and saturation drives in the exercise
of military powers of the President.
12. Inspection of buildings and other premises for the enforcement of fire,
sanitary, and building regulations.
13. Search by DOLE to enforce labor law provisions
14. Plain View Doctrine
1. Requisites of Plain View Doctrine: (PIAF)
1. The executing law enforcement officer has a prior justification for
an initial intrusion or otherwise properly in a position from which
he can view a particular order;
(Prior justification for initial intrusion)
2. The officer must discover incriminating evidence inadvertently;
(Inadvertent discover)
3. It must be immediately apparent to the police that the items they
observe may be evidence of a crime, contraband, or otherwise
subject to seizure; AND
(Immediately apparent evidence of crime)
4. Plain view justified the seizure of evidence without further search.
(Without further search)
1. ILLUSTRATION: Search warrant is for more than one offense.
While implementing the warrant, the police officer saw, in
plain view, a shabu in the place searched. Is the shabu
admissible in evidence? No, because there was no prior
justification for initial intrusion on the part of the police
officer.
5. Warrantless arrests and detention
1. NOTE: The facts must clearly show for in flagrante delict arrest that there
is an OVERT ACT. If it is not clear, arrest is not valid. For hot pursuit, it is
PROBABLE CAUSE BASED ON PERSONAL KNOWLEDGE OF THE F/C. If it
is not clear, arrest is not valid.
2. In flagrante delicto - When, in his presence, the person to be arrested
has committed, is actually committing, or is attempting to commit an
offense;
3. Hot pursuit - 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; and
4. Escapee - When the person to be arrested is a prisoner who has escaped
from a penal establishment, or while being transferred from one
confinement to another. (Sec. 5, Rule 113)
5. Waiver - When the right is waived by the person arrested, i.e., failure to
raise the illegality of arrest before arraignment.
6. Continuing offense - membership in organizations like the NPA and
6.
kidnapping are continuing offenses, so a person guilty thereof can be
arrested anytime under the in flagrante principle. (Umil v Ramos, 1990)
7. Bondsmen - bondsmen may arrest the accused (Sec. 23(1), Rule 114)
8. Attempt to depart - the person released on bail attempts to depart the
Philippines without permission of the court. (Sec. 23(2), Rule 114)
1. In flagrante delicto:
1. In in flagrante delicto arrest, two (2) elements must concur: (OP)
1. The person to be arrested must execute an Overt act
indicating that he has just/actually committing/attempting to
commit a crime; and
2. Such overt act is done in the Presence or within the view of
the arresting officer. (Veridiano v People, 2017, Leonen)
1. “Presence” covers all senses, i.e., touch, smell, sight, and
hearing.
2. Application of in flagrante delicto to actual cases
1. The accused did not exhibit an overt act within the view of the
police officers suggesting that he was in possession of illegal
drugs at the time he was apprehended. (People v Cogaed,
2014, Leonen)
2. He was not committing a crime at the checkpoint. Petitioner
was merely a passenger who did not exhibit any unusual
conduct. The police officers relied solely on the tip they
received, absent any overt act. (Veridiano v People, 2017,
Leonen)
3. The time of the arrest was 11:30 p.m; PO3 Martinez was 6 to
10 meters away when he saw petitioner holding a plastic
sachet; and he was looking from a tinted windshield of a van.
Instead, the petitioner was arrested because of an informant’s
tip and because he was known to PO2 Magno and Sanchez. It
is settled that "reliable information" alone is not sufficient to
justify a warrantless arrest. Hence, the arrest is invalid
because the petitioner did not perform an overt act within the
plain view of PO3 Martinez indicating that he has just
committed a crime. (Villasana v People, 2019, Leonen)
2. Hot pursuit:
1. Three (3) important elements must concur;
1. Immediacy test - Crime has “just” been committed
2. Probable cause - actual belief or reasonable grounds of
suspicion
3. Personal knowledge - of the facts and circumstances
1. The elements must be present. Otherwise, the arrest may
be nullified, and resultantly, the items yielded through the
search incidental thereto will be rendered inadmissible in
 1.

consonance with the exclusionary rule of the 1987

Constitution. (Pestilos v Generoso, 2014)
2. “Immediacy test”
1. There must be a large measure of immediacy
between the time the offense is committed and the
time of the arrest, and if there was an appreciable
lapse of time between the arrest and the commission
of the crime, a warrant of arrest must be secured.
(People vs Del Rosario)
2. The determination of probable cause and the
gathering of facts or circumstances should be made
immediately after the commission of the crime in
order to comply with the element of immediacy.
(Pestilos v Generoso, 2014)
3. “Personal knowledge of the facts and circumstances”
1. Aside from the sense of immediacy, it is also
mandatory that the person making the arrest has
personal knowledge of certain facts indicating that
the person to be taken into custody has committed
the crime. Reliable information does not satisfy as
―personal knowledge. (People vs Del Rosario).
2. Circumstances may pertain to events or actions within
the actual perception, personal evaluation or
observation of the police officer at the scene of the
crime. (Pestilos v Generoso, 2014)
3. Thus, even though the police officer has not seen
someone actually fleeing, he could still make a
warrantless arrest if, based on his personal evaluation
of the circumstances at the scene of the crime, he
could determine the existence of probable cause that
the person sought to be arrested has committed the
crime.
4. Law enforcers need not personally witness the
commission of a crime. However, they must have
personal knowledge of facts and circumstances
indicating that the person sought to be arrested
committed it. (Veridiano v People, 2017, Leonen)
3. Waiver of illegal warrantless arrest does not include waiver of illegal
search
1. It must be emphasized that petitioner's failure to question his
arrest before he made his plea only affects the jurisdiction of
the court over his person and does NOT bar him from raising the
inadmissibility of the illegally seized shabu.
 2. A waiver of an illegal warrantless arrest does not carry with it a
waiver of the inadmissibility of the evidence obtained during the
illegal arrest. (Villasana v People, 2019, Leonen)
6. Exclusionary rule or fruit of poisonous tree
1. Evidence obtained in violation of this and the preceding Section shall be
inadmissible for any purpose in any proceeding. (Sec. 3(2), Art. III)
2. This applies not only to testimonial evidence but also to documentary and
object evidence.
7. Effects of unreasonable searches and seizures
1. To repeat, the exclusionary rule or fruit of the poisonous tree doctrine
applies.
2. Further, an unlawful search and seizure may justify:
1. The use of self-help in the form of resistance to such unlawful search
and seizure;
2. The criminal prosecution of the searching officer;
3. The civil damages against such officer; and
4. The disciplinary action against the officer by his administrative
officers. (Bautista, 2010)
8. Effects of illegal detention
1. In case the detention is without legal ground, the person arrested can
charge the arresting officer with arbitrary detention under Art. 124 of the
Revised Penal Code.
2. This is without prejudice to the possible filing of actions for damages
under Art. 32 of the Civil Code.
(In the matter of petition for issuance of writ of habeas corpus v DOJ,
2017)
9. SPO1 X and SPO1 Y saw A and B in an alley around 3 meters away. They
watched B handed A a small plastic sachet. They saw A inspect the sachet,
flicking it against the light emitted from a street light and a lamp from a
house nearby. When the police officers approached them, A and B fled. Only
A was caught. SPO1 X told A to open his hands. They found a small sachet
containing shabu, which the police officers confiscated. RTC found him guilty
beyond reasonable doubt of violating the Dangerous Drugs Act. A argued
that the evidence against him was obtained from an illegal warrantless arrest.
Decide.
1. The arrest and the search are valid. The rule that a warrantless arrest
must precede a warrantless search is not absolute. A search substantially
contemporaneous with an arrest can precede the arrest if the police have
probable cause to make the arrest at the outset of the search. In this case,
the arrest and the search were substantially contemporaneous. Thus,
what must be evaluated is whether or not the arresting officers had
probable cause for petitioner’s arrest when they made the search.
2. Here, the arresting officers saw A handed B with a small plastic sheet,
 2.
which they then inspected. Upon the officers’ approach, A and B fled.
These overt acts and circumstances were observed personally by the
arresting officers and, taken together, constitute reasonable suspicion
that A and B were violating the Dangerous Drugs Act. Thus, the search
preceded the arrest does not render invalid the search and arrest of A
(Aparante v. People, G.R. No. 205695, September 27, 2017, J. Leonen).
10. X was at the airport to catch a flight bound for Manila. Since the x-ray
machine operator at the initial security screening was not yet around, he left
the line and went outside to smoke. Airport Security Y was told by Airport
Security Z that the parking space in front of the departure area smelled like
marijuana and that he (Z) suspected that X was the one who smoked the
illegal drug. Ten minutes passed, X went back to the initial security
checkpoint carrying his check-in and cabin luggage. Afterwards, X
proceeded to the final security check where a pat down search was
conducted by Airport Security Y. A red Marlboro cigarette pack, containing
two pieces of rolled paper of what appeared to be dried marijuana leaves,
was found in X’s possession. Is there a legitimate airport search in this case?
1. No, the airport search is not valid.
2. Airport search is reasonable when limited in scope to the object of the
Anti-Hijacking program, not the war on illegal drugs. R.A. No. 6235 or the
Anti-Hijacking Law provides that an airline passenger and his hand-carried
luggage are subject to search for, and seizure of, prohibited materials or
substances and that it is unlawful for any person, natural or juridical, to
ship, load or carry in any passenger aircraft, operating as a public utility
within the Philippines, any explosive, flammable, corrosive or poisonous
substance or material. It is in the context of air safety-related
justifications, therefore, that routine airport security searches and
seizures are considered as permissible under Section 2, Article III of the
Constitution. Unlike a routine search where a prohibited drug was found
by chance, a search on the person of the passenger or on his personal
belongings in a deliberate and conscious effort to discover an illegal drug
is not authorized under the exception to the warrant and probable cause
requirement.
3. In this case, what was seized from X were two rolled sticks of dried
marijuana leaves. Obviously, they are not explosive, flammable, corrosive
or poisonous substances or materials, or dangerous elements or devices
that may be used to commit hijacking or acts of terrorism. More
importantly, the illegal drugs were discovered only during the final security
checkpoint, after a pat down search was conducted by Y, who did not act
based on personal knowledge but merely relied on an information given by
Z that X was possibly in possession of marijuana (People v. O’cochlain,
G.R. No. 229071, December 10, 2018).
11. While on a routine patrol, PO1 X spotted a passenger jeep unusually covered
 11.
with "kakawati" leaves. Suspecting that the jeep was loaded with smuggled
goods, the PO1 X flagged down the vehicle. The jeep was driven by Z. When
asked what was loaded on the jeep, Z did not answer. Z appeared pale and
nervous. With Z's consent, PO1 X checked the cargo and discovered bundles
of aluminum/galvanized conductor wires owned by National Power
Corporation (NPC). Thereafter, Z and the vehicle with the wires were brought
to the Police Station. Z contends that the flagging down of his vehicle by PO1
X who was on routine patrol, merely on "suspicion" that "it might contain
smuggled goods," does not constitute probable cause that will justify a
warrantless search and seizure. PO1 X argues the cable wires found in Z's
vehicle were in plain view. Is PO1 X correct?
1. No. Jurisprudence is to the effect that an object is in plain view if the
object itself is plainly exposed to sight. Where the object seized was
inside a closed package, the object itself is not in plain view and therefore
cannot be seized without a warrant. However, if the package proclaims its
contents, whether by its distinctive configuration, its transparency, or if its
contents are obvious to an observer, then the contents are in plain view
and may be seized. In other words, if the package is such that an
experienced observer could infer from its appearance that it contains the
prohibited article, then the article is deemed in plain view. It must be
immediately apparent to the police that the items that they observe may
be evidence of a crime, contraband or otherwise subject to seizure.
2. In this case the cable wires were not exposed to sight because they were
placed in sacks and covered with leaves. The articles were neither
transparent nor immediately apparent to the police authorities. They had
no clue as to what was hidden underneath the leaves and branches. As a
matter of fact, they had to ask petitioner what was loaded in his vehicle. In
such a case, it has been held that the object is not in plain view which
could have justified mere seizure of the articles without further search
(Caballes v. CA, G.R. No. 136292, January 15, 2002).
_______________________________________________________________________________________
_______________________________________________________________________________________
____________________
E. Privacy of communications and correspondence
1. Concept of communications, correspondence
1. Right to privacy is discussed in Sec. 2, Art. III.
2. Forms of correspondence and communication covered:
1. Letters
2. Messages
3. Telephone calls
4. Telegrams
5. Others analogous to the foregoing (Bernas)
2. Intrusion, when and how allowed (applies to right to privacy, in general)
 1. Lawful order by the court
2. When public order or safety requires as provided by law
1. Adopt the notes mentioned above.
3. Exclusionary rule or fruit of the poisonous tree
1. Evidence obtained in violation of this and the preceding Section shall be
inadmissible for any purpose in any proceeding. (Sec. 3(2), Art. III)
2. This applies not only to testimonial evidence but also to documentary and
object evidence.
_______________________________________________________________________________________
_______________________________________________________________________________________
____________________
F. Freedom of speech and expression
1. Concept
1. Continuum of thought, speech, expression, and speech acts
1. Our Constitution has also explicitly included the freedom of
expression, separate and in addition to the freedom of speech and of
the press provided in the US Constitution. The word "expression" was
added in the 1987 Constitution by Commissioner Brocka for having a
wider scope. (Diocese of Bacolod v COMELEC, 2015, Leonen)
2. The freedom of expression applies to the ENTIRE continuum of
speech, from utterances made to conduct enacted, and even inaction
itself as a symbolic manner of communication. (Diocese of Bacolod v
COMELEC, 2015)
1. Utterances made, whether written or spoken.
2. Symbolic speech/conduct/inaction, i.e., wearing of armbands as
a symbol of protest , refusing to salute the flag, sing the national
anthem, and recite the patriotic pledge. Even cancelling
celebrities is an inaction which is covered by freedom of
expression.
3. Films and TV programs (INC v CA, 1996; Gonzalez v Chariman
Katigbak)
4. Freedom as to the form of expression, i.e., the size of the
tarpaulin matters. Bigger size enhances efficiency in
communication, it underscores the importance of the message to
the reader, and it can state more messages. (Diocese of Bacolod v
COMELEC, 2015)
3. “No law shall be passed”
1. While it is true that the present petition assails not a law but an
opinion by the COMELEC Law Department, this court has applied
Article III, Section 4 of the Constitution even to governmental
acts. (Diocese of Bacolod v COMELEC, 2015, Leonen)
2. Purposes of free speech doctrines
1. Does the freedom of speech apply against private individuals? Yes.
 1. In Malabanan v Ramento, the Court ruled that the students did not
shed their freedom of expression at the schoolhouse gate. While
the educational institution has academic freedom to admit or
expel students, it cannot violate the freedom of expression.
Hence, the exercise of such freedom cannot be the basis for
barring students from enrolling.
1. However, the school is not powerless to discipline students. If
the conduct materially disrupts classwork, or it involves
substantial disorder or invasion of the rights of others, the
students may be disciplined.
1. Of course, the penalty must be proportional to the
conduct, and procedural due process must be followed.
3. Balance between unbridled expression and liberty
1. Freedom of expression is not absolute, nor is it an unbridled license
that gives immunity for every possible use of language and prevents
the punishment of those who abuse this freedom. (Chavez v
Gonzales, 2008)
2. Hence, while the right has a widespread scope, it is NOT absolute. As
examples, illegal strikes, child pornography, and libel can be
restrained/punished.
2. Types of regulation
1. Prior restraint and subsequent punishment
1. Prior Restraint
1. It refers to governmental restrictions/regulations on speech/
expression/press in advance of actual publication/expression.
(Newsounds Broadcasting Network v Dy)
2. All prior restraints are presumed invalid. (Near v Minnesota, 1931)
3. There need not be total suppression.
1. Even restriction of circulation constitutes censorship.
(Grosjean v American Press Co, 1936)
4. Content-based and content-neutral regulations and their
applicable tests apply if there is prior restraint.
2. Subsequent Punishment
1. Freedom of speech includes freedom after speech. Without this
assurance, citizens would hesitate to speak for fear that they
might be provoking the vengeance of the officials they criticized.
2. Libel, and inciting to sedition/rebellion apply if there is valid
subsequent punishment.
3. Exceptions to Libel
1. Absolute privileged communication - The speaker cannot be
punished for the speech, even if libelous.
1. No Member shall be questioned nor be held liable in any
other place for any speech or debate in the Congress or in
 1.

any committee thereof. (Sec. 11, Art. VI)

2. Qualified privileged communication - The speech is not
presumed malicious. However, the speaker may be punished
for libel if actual malice is proven.
1. Private communication in the performance of any legal,
moral, social duty
2. A fair and true report, made in good faith, without any
comments or remarks, of any judicial, legislative or other
official proceedings which are not of confidential nature.
3. Statements made in judicial proceedings are qualified
privileged communication. Statements in pleadings are
included herein. (Armovit v Purisima, 1982)
4. Fair comment doctrine
1. Fair commentaries on matters of public interest are
privileged and constitute a valid defense in an action
for libel. “Public interest” includes commentaries
about a public person in his public capacity. However,
it does not follow a public man into his private life.
(Borjal v CA, 1999; Yuchengco v Manila Chronicle,
2009)
2. Further, journalists are given leeway for honest
mistakes or imperfection in the choice of words.
(Yambot v. Tuquero, 2011)
3. After the 2010 election, Press Secretary X announced to reporter that
the opposition was planning to destabilize the administration by
releasing an audiotape conversation between President V and a high
ranking official. The DOJ also warned reporters that those who would
broadcast or publish its content could be held liable under the Anti-
Wiretapping Act. The DOJ secretary ordered the NBI to go after media
organization found to have spread the audio and printing of the
contents of the tape. The NTC also issued a press release warning
television owners and operators to observe the Anti-Wiretapping Act
and pertinent circulars.
1. What is a prior restraint?
2. M filed a petition against the DOJ secretary and the NTC to annul
void proceedings and to prevent the unlawful curtailment of
freedom of expression of the press. Decide.
1. Prior restraint refers to official governmental restrictions on
the press or other forms of expression in advance of actual
publication or dissemination. To determine if there is prior
restraint, we must distinguish between content-neutral and
content-based regulation. The former is concerned with the
incidents of speech or on that merely controls the time, place
 or manner and under well-defined standards. The latter is
based on the subject matter of the utterance of the speech.
2. Petition should be granted as the acts of the DOJ secretary
and NTC constitute prior restraint on speech. The case at bar
falls on the content-based regulation because it seeks to
regulate the contents of the audio tape and not merely the
time, place or manner of its delivery. This kind of regulation
bears the presumption of unconstitutionality and must hurdle
the clear and present danger test (which is whether the words
used in such circumstances and are of such nature as to
create a clear and present danger that they will bring about
the substantive evil that congress has a right to prevent) and
must be narrowly drawn to fit the regulatory purpose with the
least restrictive means undertaken (strict scrutiny).
3. Here the presumption is not hurdled as there is no showing
that the violation of anti-wiretapping law presents a clear and
present danger. Hence, there is a prior restraint. The writs
should be issued nullifying the statements of the DOJ
secretary and freedom of expression must be upheld (Chavez
v. Gonzales, GR 168338, February 15, 2008).
4. X is the President and is among the incorporators of PTP Inc. Among
the regular writers was X who runs the one column of the newspaper.
During a congressional hearing on the transport crisis, those who
attended agreed to organize First National Conference on Land
Transportation (FNCLT) that would embody a long-term land
transportation policy. FW was elected as Executive Director. Series of
articles were written by X in his column which dealt with the alleged
anomalous activities of an “organizer of a conference” without naming
or identifying FW. Neither did it refer to the FNCLT as the conference
mentioned. FW filed a complaint against X for unethical conduct and
Libel.
1. Is X liable?
2. May the right to privacy of FW, who is not a public figure, be
restricted?
1. No, X is not liable. The speech is considered privileged. A
privileged communication is either (1) absolute - which
exempts member of congress from liability for any speech or
debate in Congress or (2) qualified. In the latter falls private
communications and fair and true reports without any
commentary or remarks as provided in Art 354 of the RPC.
Although X’s publication fall in neither the above
classification, the Supreme Court had ruled that publications
which are privileged for reasons of public policy are protected
 by the constitutional guaranty of freedom of speech. This
constitutional right cannot be abolished by the mere failure of
the legislature to give it express recognition in the statute
punishing [Link] reiterate, fair commentaries on matters of
public interest are privileged and constitute a valid defense in
an action for libel or slander. Hence X is not liable for Libel.
2. Yes, his right to privacy may be restricted. The right to privacy
of a person who is not a public figure may likewise be
restricted if he is involved in a public issue. Even assuming ex-
gratia argumenti that private respondent, despite the position
he occupied in the FNCLT, would not qualify as a public figure,
it does not necessarily follow that he could not validly be the
subject of a public comment even if he was not a public
official or at least a public figure, for he could be, as long as
he was involved in a public issue. If a matter is a subject of
public or general interest, it cannot suddenly become less so
merely because a private individual is involved or because in
some sense the individual did not voluntarily choose to
become involved. The public's primary interest is in the event;
the public focus is on the conduct of the participant and the
content, effect and significance of the conduct, not the
participant's prior anonymity or notoriety (Borjal v. Court of
Appeals, G.R. No. 126466, January 14, 1999).
2. Content based and content neutral; subject matter and incidents of
speech
1. Content-based
1. Content-based regulation refers to restrictions based on the
subject matter of the utterance or speech. Example is regulation
as to the size of tarpaulins.(Diocese of Bacolod v COMELEC,
2015, Leonen)
2. Content-based regulation is subject to clear and present danger
test and strict scrutiny test.
1. Clear and present danger test - It means that speech may
not be restrained, unless there is a clear and present danger
that the speech will likely lead to a substantial evil, which the
State has a right to prevent. (Chavez v Gonzales, 2008)
1. “Clear” means there is connection between the danger of
substantive evil and the speech.
2. “Present” means the danger is imminent/inevitable.
(Gonzales v COMELEC)
2. Strict scrutiny test - Three (3) requisites: (CLN)
1. Compelling State interest;
2. Least restrictive means; and
 3. Narrowly tailored to the accomplish the interest.
2. Content-neutral
1. Content-neutral regulation includes controls merely on the
incidents of the speech such as time, place, or manner of the
speech. Example is BP 880. (BAYAN v Ermita, 2006)
2. Content-neutral regulation is subject to intermediate scrutiny test
(O’Brien Test). (CSUG)
1. Within Constitutional power of government;
2. Substantial governmental interest;
3. Interest is Unrelated to the suppression of free expression;
4. Restriction is no Greater than is essential to further the
interest.
3. Incitement and advocacy
1. Political discussion, even among those opposed to the present
administration, is protected by freedom of expression. The same
cannot be construed as subversive activities per se.
2. Further, the Constitutional guarantees of free speech and free press
do not permit the State to forbid advocacy, unless the advocacy is
directed to inciting or producing imminent lawless action. (Salonga v
Cruz Paño, 1985)
3. What is the heckler’s veto?
1. Heckler’s veto is an attempt to limit unpopular speech. This
occurs when the unpopular group’s right to freedom of speech is
curtailed or restricted by the government in order to prevent the
popular group’s behavior, i.e., outrage and violent protest due to
the unpopular speech.
2. This is presumed invalid, unless there is clear and present danger
that the speech will likely lead to substantial evil.
4. When can it be restrained?
1. Clear and Present Danger Test
2. Strict scrutiny Test/O’Brien Test
5. When can it be subsequently punished?
1. Libel
2. Inciting to sedition. (Espuelas v People, 1951)
4. Specificity of regulation and overbreadth doctrine
1. General Rule:
1. As applied challenge - A party can question the validity of a
statue only if, as applied to him, it is unconstitutional. (Southern
Hemisphere v Anti-Terrorism Council, 2010)
2. Exception:
1. Facial challenge - The “facial challenge” rule provides that the
legislation is always unconstitutional. (Imbong v Ochoa, 2014)
1. This only applies to free speech cases.
2. Penal statutes cannot be the subject of facial challenge,
unless it encroaches upon the freedom of speech. (Disini v
Secretary of Justice, 2014)
3. It can be contested by any person, because the rule on locus
standi does not apply. (Spouses Romualdez v COMELEC,
Separate Opinion, Carpio)
4. Kinds of facial challenges
1. Overbreadth doctrine
1. The doctrine provides that a regulation of speech is
void if it unnecessarily sweeps broadly and invades
protected and non-protected speech. In other
words, it prohibits more than is necessary to achieve
a compelling government interest. (Adiong v
COMELEC, 1992)
2. As example, the COMELEC resolution prohibits the
posting of decals and stickers not more than 8.5
inches in width and 14 inches in length, in any place,
whether public or private property. Is the regulation
overbroad? Yes. Because the resolution covers private
property. (Adiong v COMELEC)
3. As another example, the airport officials merely
sought to prohibit solicitation at the airport. However,
it passed a resolution prohibiting all First Amendment
activities at the airport. Hence, it was overbroad,
because it prohibited writing, speaking, wearing
campaign buttons, and other forms of protected
expression. (Board of Airport Commissioners v Jews
for Jesus, 1987)
2. Void for vagueness doctrine
1. A statue may be said to be vague when it lacks
comprehensible standards that men of common
intelligence must necessarily guess as to its
meaning and differ as to its application, that law is
deemed void.
2. Why is it void?
1. It fails to accord persons fair notice of the
conduct to avoid; and
2. It leaves law enforcers unbridled discretion in
carrying out its provisions and becomes an
arbitrary flexing of the Government muscle.
(Estrada v Sandiganbayan, 2001)
3. As example, the provision on aiding or abetting in the
commission of cybercrime is deemed void for
 3.

vagueness, because the crime ensnares all the actors

in the cyberspace in a fuzzy way (Disini v Secretary of
Justice, 2014)
3. X, during a launching of Bible which coincide the Feast of Saint
Jerome and while Father D was reading a passage from the bible,
entered the Church clad in black suit and went to the center aisle and
emblazoned the words “DAMASO”. Commotion ensued while X uttered
“Bishops don’t involve yourself in politics! There is a separation of
church and state!” X was later charged with an information for the
offense of Offending Religious feeling as defined and penalized under
Article 133 of the RPC. X argues the unconstitutionality of the Article
133 of the RPC claiming that it violates the constitutional right to
freedom of expression and of free speech and its overbreadth and
vagueness application results in a chilling effect. Decide if whether
the law is constitutional or unconstitutional.
1. The law is not unconstitutional. As a rule, facial challenge on penal
statutes is prohibited because facial challenges are generally
applicable only to free speech, religious and other fundamental
rights. However, as an exception, a facial challenge grounded on
void-for-vagueness doctrine may be allowed when the subject
penal statute encroaches upon the freedom of expression.
2. Here, Article 133 does not regulate free speech but punishes
disruptive acts that are notoriously offensive to the feelings of the
faithful in a place of worship. It does not seek to prevent or
restrict any person from expression his political opinions or
criticism against the catholic church or any religion (Celdran v.
People, G.R. No. 220127, November 21, 2018; Southern
Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council,
G.R. No. 178552, October 5, 2010).
5. Speech regulation in relation to election
1. The COMELEC regulates speech during elections.
1. Regulation of speech in the context of electoral campaigns made
by candidates or members of political parties may be regulated as
to the time, place, and manner. In no situation may the speech be
prohibited on the basis of its content.
2. Regulation of speech in the context of electoral campaigns made
by NON-candidates may be regulated if it is a declarative speech
which has for its principal object the endorsement of a candidate.
Again, it may only be regulated as to the time, place, and manner.
1. Why is the regulation limited to content-neutral, i.e., time,
place, and manner of speech? Because in speech relating to
elections, there is NO clear and present danger that the
speech will likely lead to substantial evil. Neither is there a
 1.

State interest that prevails over such speech.

3. Regulation of speech in the context of electoral campaigns made
by NON-candidates may NOT be regulated if it principally
advocates a social issue that the public must consider during the
elections. Such regulation shall be unconstitutional. (Diocese of
Bacolod v COMELEC, 2015)
1. Why can it not be regulated? Sec. 2(3), Art. IX-C provides that
the COMELEC has the power to decide all questions affecting
elections. It does not have the power to regulate speech of
non-candidates regarding social issues.
6. Speech regulation in relation to media
1. Four (4) aspects of Freedom of the Press
1. Freedom from prior restraint (all kinds of speech)
2. Freedom from subsequent punishment (all kinds of speech)
3. Freedom of access to information (right to be informed, under
Sec. 7)
4. Freedom of circulation. (Chavez v Gonzales, 2008)
2. Broadcast and radio media are subject to dual regulation.
1. First, by procuring a legislative franchise, and
2. Second, by registering and being subject to the regulations set by
the National Telecommunications Commission. (Divinagracia v
Consolidated Broadcasting System, 2009)
3. The freedom given to broadcast (movie, tv, radio) media is lesser than
the freedom accorded to print media (newspaper). What does this
mean?
1. The tests for regulation are the same for ALL forms of media, i.e.,
clear and present danger test/strict scrutiny test/O’Brien test.
2. However, broadcast media has “lesser freedom” in the context of:
a) requirements for licensing, b) allocation of airwaves since print
media does not need airwaves, c) pervasive presence in the lives
of the people, and d) accessibility to children. (Chavez v
Gonzales, 2008)
3. Judicial analysis, presumptions and levels and types of scrutiny
1. Presumption
1. As stated, a restraint to speech is presumed invalid.
2. Levels and types of scrutiny
1. Clear and present danger test - already discussed in content-based.
2. Strict scrutiny - already discussed in content-based.
3. Intermediate scrutiny (O’Brien) - already discussed in content-neutral.
4. Special topics in free expression cases
1. Hate speech
1. This is speech designed to promote hatred on the basis of race,
religion, ethnicity, or national origin. (Art. 20, International Covenant
 1.

on Civil and Political Rights)

2. This is unprotected speech.
2. Defamation and libel
1. Libel is unprotected speech.
2. The plaintiff/prosecution has the burden of proving malice.
3. Elements:
1. Defamatory
2. Malicious
3. Identifiable
4. Publication
4. “Identifiability”; Group libel
1. Defamatory remarks directed against a group of individuals are
not actionable unless the remarks are sweeping and all-embracing
as to apply to every individual in that group. (MVRS Publications v
Islamic Da’wah Council, 2003)
5. After the 2010 election, Press Secretary X announced to reporter that
the opposition was planning to destabilize the administration by
releasing an audiotape conversation between President V and a high
ranking official. The DOJ also warned reporters that those who would
broadcast or publish its content could be held liable under the Anti-
Wiretapping Act. The DOJ secretary ordered the NBI to go after media
organization found to have spread the audio and printing of the
contents of the tape. The NTC also issued a press release warning
television owners and operators to observe the Anti-Wiretapping Act
and pertinent circulars.
1. What is a prior restraint?
2. M filed a petition against the DOJ secretary and the NTC to annul
void proceedings and to prevent the unlawful curtailment of
freedom of expression of the press. Decide.
1. Prior restraint refers to official governmental restrictions on
the press or other forms of expression in advance of actual
publication or dissemination. To determine if there is prior
restraint, we must distinguish between content-neutral and
content-based regulation. The former is concerned with the
incidents of speech or on that merely controls the time, place
or manner and under well-defined standards. The latter is
based on the subject matter of the utterance of the speech.
2. Petition should be granted as the acts of the DOJ secretary
and NTC constitute prior restraint on speech. The case at bar
falls on the content-based regulation because it seeks to
regulate the contents of the audio tape and not merely the
time, place or manner of its delivery. This kind of regulation
bears the presumption of unconstitutionality and must hurdle
 the clear and present danger test (which is whether the words
used in such circumstances and are of such nature as to
create a clear and present danger that they will bring about
the substantive evil that congress has a right to prevent) and
must be narrowly drawn to fit the regulatory purpose with the
least restrictive means undertaken (strict scrutiny).
3. Here the presumption is not hurdled as there is no showing
that the violation of anti-wiretapping law presents a clear and
present danger. Hence, there is a prior restraint. The writs
should be issued nullifying the statements of the DOJ
secretary and freedom of expression must be upheld (Chavez
v. Gonzales, GR 168338, February 15, 2008).
3. Sedition and speech in relation to rebellion
1. Inciting to sedition/rebellion is unprotected speech.
4. Obscenity/pornography
1. What is the test employed to determine the presence of obscenity?
1. Miller test (most recent)
1. Appeal to prurient interest - Whether to the average person,
applying the contemporary community standards, the
dominant theme of the material appeals to the prurient
interest.
2. Patently offensive - Whether the work depicts or describes,
in a patently offensive way, sexual conduct specifically
defined by the law
3. Lacks value - Whether the work lacks serious literary,
political, or scientific value. (Fernando v CA, 2006, quoting
Miller v California, 1973)
2. The authorities must apply for the issuance of a search warrant. The
proper crime to be brought in the court is Art. 201 of the RPC (Pita v
CA, 1989)
5. Commercial speech
1. Commercial speech is a separate category of speech which is not
accorded the same level of protection as other forms of expression.
However, it is still entitled to protection.
2. The requisites for a valid regulation of commercial speech are as
follows:
1. Speech must not be false, misleading, or proposing an illegal
activity
2. Government interest sought to be served by regulation must be
substantial
3. The regulation must advance government interest
4. The regulation must not be overbroad. (Central Hudson Gas v
Public Service Commission, 1980)
3. Distinguish political speech from commercial speech.
1. Political speech refers to speech "both intended and received as a
contribution to public deliberation about some issue," "fostering
informed and civicminded deliberation." It is motivated by the
desire to be heard and understood, to move people to action. It is
concerned with the sovereign right to change the contours of
power whether through the election of representatives in a
republican government or the revision of the basic text of the
Constitution. On the other hand, commercial speech has been
defined as speech that does "no more than propose a commercial
transaction" (Diocese of Bacolod v. COMELEC, G.R. No. 205728,
January 21, 2015, J. Leonen).
4. The COMELEC issued Resolution No. 6486 to implement Sec 36(g) of
RA 9165 or the Comprehensive Dangerous Drugs Act of 2002,
prescribing the rules and regulations on the mandatory drug testing of
candidates for public office in connection with the May 10, 2020
synchronized national and local elections. Pepe, a senator and a
candidate for re-election in the 2020 elections, filed a Petition to
nullify Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 for
being unconstitutional because they impose a qualification for
candidates for senators in addition to those already provided for in the
Constitution. According to Pepe, Sec. 3, Article VI of the Constitution
only prescribes a maximum of 5 qualifications for one to be a
candidate for, elected to, and be a member of the Senate, to wit: (1)
citizenship, (2) voter registration, (3) literacy, (4) age, and (5)
residency. He says that both the Congress and COMELEC, by
requiring a senatorial aspirant to undergo a mandatory drug test,
create an additional qualification that all candidates for senator must
first be certified as drug free. He adds that there is no provision in the
Constitution authorizing the Congress or COMELEC to expand the
qualification requirements of candidates for senator. Decide.
1. Sec. 36(g) of RA 9165 is unconstitutional. The qualifications of
Members of the Congress are exclusive, and as such, the
Congress cannot validly amend or otherwise modify these
qualification standards, as it cannot disregard, evade, or weaken
the force of a constitutional mandate, or alter or enlarge the
Constitution. In the same vein, the COMELEC cannot, in the guise
of enforcing and administering election laws or promulgating rules
and regulations to implement Sec. 36(g), validly impose
qualifications on candidates for senator in addition to what the
Constitution prescribes.
2. Here, Sec. 36(g) of RA 9165 effectively enlarges the qualification
requirements enumerated in the Sec. 3, Art. VI of the Constitution.
 2.

It unmistakably requires a candidate for senator to be certified

illegal – drug clean, as a pre – condition to the validity of a
certificate of candidacy for senator or, with like effect, a condition
sine qua non to be voted upon and, if proper, be proclaimed as
senator-elect (SJS v. Dangerous Drugs Board, G.R. No. 157870,
November 3, 2008).
6. National emergencies
1. One of the misfortunes of an emergency, particularly, that which
pertains to security, is that military necessity and the guaranteed
rights of the individual are often not compatible. The right against
unreasonable search and seizure; the right against warrantless arrest;
and the freedom of speech, of expression, of the press, and of
assembly under the Bill of Rights suffered the greatest blow. (David v.
Macapagal-Arroyo, 2006)
7. Speech of public officers
1. As stated, the members of Congress have parliamentary immunity for
speech or debate made in Congress.
2. For unparliamentary conduct, members of the Congress have been or
could be censured, committed to prison, or even expelled by the votes
of their colleagues (Osmeña v. Pendatun, 1960)
5. Cognate rights
1. Freedom of assembly
1. “Assembly” means a right on the part of the citizen to meet
peaceably for consultation in respect to public affairs.
2. Like freedom of expression, it cannot be subject to prior restraint.
Hence, the exercise of the freedom cannot be conditioned upon the
prior issuance of a permit or authorization from the government
authorities. (Primicias v Fugoso, 1948)
3. However, if assembly is to be held at a public place, permit for the
use of such place, and not for the assembly itself may be validly
required. The power of local officials is merely for regulation and not
for prohibition, as an exercise of police power. (Primicias vs. Fugoso,
1948; Reyes v Bagatsing, 1983)
4. When is a permit not needed?
1. Freedom parks
2. Private places - only the consent of the property owner or the
person entitled to legal possession is needed.
1. An example is protests in private schools. (Malabanan v
Ramento)
3. Campus of a government-owned and operated educational
institution - subject to the rules and regulations of said
institution. (Sec. 4, BP 880)
5. When can the LGU refuse to issue the permit?
 1. It shall be the duty of the mayor to issue the permit unless there is
clear and convincing evidence that the public assembly will create
a clear and present danger to public order, safety, convenience,
morals or health. (Sec. 6(a), BP 880; David v Arroyo, 2006)
6. Sec. 8(3) of BP 880 provides that “If the mayor is of the view that
there is imminent and grave danger of a substantive evil warranting
the denial or modification of the permit, he shall immediately inform
the applicant who must be heard on the matter.”
1. Hence, in modifying the permit outright, Atienza gravely abused
his discretion when he did not immediately inform the IBP who
should have been heard first on the matter of his perceived
imminent and grave danger of a substantive evil that may warrant
the changing of the venue. (IBP v Mayor Atienza, 2010)
7. Meaning of “Maximum Tolerance”
1. “Maximum tolerance” means the highest degree of restraint that
the military, police and other peace keeping authorities shall
observe during a public assembly or in the dispersal of the same.
(Section 3[c], B.P. Blg. 880)
2. Calibrated Preemptive Response (CPR)
1. Insofar as it would purport to differ from or be in lieu of
maximum tolerance, it is null and void. CPR serves no valid
purpose if it means the same thing as maximum tolerance
[Sec. 3(c), B.P. Blg. 880], and is illegal if it means something
else. Accordingly, what must be followed is maximum
tolerance, which is mandated by the law itself [Bayan v
Ermita)
8. Political rallies during the campaign period are not governed by the
Public Assembly Act, but by the Omnibus Election Code (B.P. Blg.
881).
9. Picketing during labor strikes are governed by the Labor Code, not
by the Public Assembly Act.
10. Holding of religious processions or military parades are governed by
local ordinances.
2. Freedom of association
1. “For purposes not contrary to law”
1. Unless an association or society could be shown to create an
imminent danger to public safety, there is no justification for
abridging the right to form associations.
2. The right is recognized as belonging to people, whether employed or
unemployed, and whether in the government or in the private sector.
3. Freedom of association presupposes freedom not to associate (Sta.
Clara Homeowners Association v. Gaston)
4. Freedom of association yields to the valid exercise of police power of
 4.
the State
1. To compel a lawyer to be a member of the Integrated Bar is not
violative of his constitutional freedom to associate. It did so in the
exercise of the paramount police power of the State, in order to
raise the standards of legal profession, improve the administration
of justice, and enable the Bar to discharge its public responsibility.
(In Re: Edillion)
3. Freedom of information
1. Splendid symmetry between Sec. 7, Art. III and Sec. 28, Art. II
1. Sec. 28 complements Sec. 7. The right to information guarantees
the right of the people to demand information, while Section 28
recognizes the duty of officialdom to give information even if
nobody demands. (Province of North Cotabato v GRP, 2008)
2. Requisites to determine if the right to information can be availed
of
1. In every case, the availability of access to a particular public
record must be circumscribed by the nature of the information
sought:
1. The nature of the information sought is a matter of public
concern;
2. The information is not exempted by law/jurisprudence from
the constitutional guarantee
3. It is not available when the purpose is unlawful or sheer, idle
curiosity. (Subido v Ozaeta)
3. “Matters of public concern”
1. The term covers subjects which the public may want to know
because;
1. The subjects directly affect their lives or,
2. The subjects naturally arouse the interest of an ordinary
citizen. (Legaspi v CSC)
4. Examples of “matters of public concern”
1. It was held that the right to information contemplates inclusion of
negotiations leading to the consummation of the transaction.
Hence, the negotiations for the compromise of the Marcoses’ ill-
gotten wealth are covered by the right, because they directly
affect the lives of the public. (Chavez v PCGG)
2. The MOA-AD is a matter of public concern, because it the
sovereignty and territorial integrity of the State directly affects the
lives of the public at large. Hence, the negotiations leading to the
consummation of the MOA-AD are covered by the right. (Province
of North Cotabato v GRP Peace Panel)
3. Other examples are:
1. Regularity of real estate transactions entered in the Register
 1.
of Deeds,
2. Need for adequate notice to the public of the various laws,
3. Civil service eligibility of a public employee,
4. Proper management of GSIS funds allegedly used to grant
loans to public officials, and
5. Identity of party-list nominees. (Province of North Cotabato v
GRP Peace Panel)
5. “Information exempted by law/jurisprudence”
1. National security matters and intelligence information.
2. Diplomatic negotiations, or inter-government exchanges prior to
the conclusion of treaties and executive agreements. The reason
is if they would be revealed before conclusion, other States will
not deal with the Philippines anymore;
3. Intellectual Property Code and other related laws
4. Secrecy of Bank Deposits Act, as amended;
5. Criminal matters, such as the apprehension, the prosecution and
the detention of criminals;
6. Other confidential information. (Chavez v. PCGG, 1998)
7. Judicial Privilege
1. Court actions such as: a) the result of the raffle of cases and
b) the actions taken by the Court on each case included in the
agenda;
2. Deliberative process privilege;
3. Confidential Information secured by justices, judges, court
personnel in the course of official functions; and
4. Records of cases that are still pending for decision, except
only for pleadings, orders and resolutions.
1. These privileges belong to the Supreme Court as an
institution, not to any justice or judge in his individual
capacity. Hence, no sitting or retired justice or judge may
claim exception without the consent of the Court. (In Re:
Production of Court Records and Document, 2012).
8. Deliberative Process Privilege
1. The privilege is not exclusive to the Judiciary . We have in
passing recognized the claim of this privilege by the two other
branches of government in Chavez v. Public Estates Authority
2. To qualify for protection under the deliberative process
privilege, the branch must show that the document is both (1)
predecisional and (2) deliberative.
3. “Predecisional” means communications which were made in
an attempt to reach a final conclusion.
4. “Deliberative” means the give-and-take exchange of the
consultative process. (In Re: Production of Court Records and
 4.

Document, 2012)
9. Executive privilege
1. Discussed in Executive Department - Art. VII
10. Presidential communications privilege
1. Discussed in Executive Department - Art. VII
6. Unlawful or sheer, idle curiosity
1. Can the people inquire into the sex life of President Duterte? No,
because the purpose is sheer, idle curiosity. (Gabriel)
7. “Subject to such limitations as may be provided by law”;
Regulation and not prohibition
1. Government agencies CANNOT refuse access to information of
public concern. However, the manner of examining public records
CAN be subject to reasonable regulation by the government
agency. (Legaspi v. CSC)
2. Example of reasonable regulation:
1. Prescribing the manner and hours of examination so that:
1. Damage to the records may be avoided,
2. Undue interference with the duties of the custodian of the
books and documents and other employees may be
prevented, and
3. The right of other persons entitled to make inspection
may be insured. (Subido v. Ozaeta)
8. Should the State concern itself as to the motives of person seeking
access?
1. No. It is NOT the duty of public officers to concern themselves
with the motives, reasons, and objects of the persons seeking
access to the records. (Subido v. Ozaeta)
9. If the right to information is violated, what is the remedy?
1. The right may be properly invoked in a MANDAMUS proceeding.
(Legaspi v CSC)
10. This right does not include the right to compel the preparation of
lists, abstracts, etc.
1. The constitution does NOT accord them a right to compel public
officers to prepare lists, abstracts, summaries and the like in their
desire to acquire information or matters of public concern.
(Valmonte v Belmonte)
2. In short, they are merely entitled to ACCESS the information. If
they want a LIST, they should make it, and not the State.