2017 Bar Updates In Constitutional Law By Atty. Rene B. Gorospe

Transcript

NOTES, UPDATES AND TEASERS CONSTITUTIONAL LAW* Jurists Review Center Bar Review 2017 ENE B. GOROSPE R ENE OUTLINE A. The Fundamental Po wers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 B. Bill of Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 C. Due Process. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 D. Equal Protection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 E. Searches an and Se Seizures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 F. Privacy of Communications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 G. Freedom of Expression. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 H. Freedom of Religion.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 I. Freedom of Movement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 J. Right to Information. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 K. Right of Association. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 L. Eminent Domain. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 M. Contract Clause. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70  N. Poverty and Legal Protection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 O. Rights of Suspects. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 P. Rights of the Accused. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 Q. Writs rits of Habeas of Habeas Corpus, Corpus, Amparo and  Amparo and Kalikasan  Kalikasan.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80 R. Speedy Disposition of Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92 S. Self-Incrimination Cl C lause. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 T. Excessive Fi Fines, Cr Cruel andJIn IURISTS nhuman PR unEVIEW ishments.C . .ENTER . . . . . . . . . . . . . . . . . . . . . . . . . . . 95 U. Double Jeopardy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 V.  Ex Post Facto L Facto Laaws and Bills oB fA ttaiR ndEVIEW er. . . . . .2017 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97 AR * Caveat : While most of the materials here are taken from cases, caution should be exercised in looking at the notes as some are  personal views designed to make the pri nciple or ru le discussed more interestin g through side comments, musings and other asides. Utmost discernment, discipline and discretion are thus advised to avoid any misunderstandings. R B G Attempt had been made to carefully carefully proofread everything but it almost always happens that des pite best efforts errors will st ill crop up. Well, as J ustice Kennedy observed in his dissenting opinion in Groh v. Ramirez , 540 U.S. 551 (2004), at 568: “We all tend toward vis-à-vis A Library Of Liberties Arsenal Of Arms myopia when looking for our own errors. Every lawyer and every judge can  An recite examples of documents that they wrote, checked, and doublechecked, but that still contained glaring errors.” Murphy’s Law, anyone? R B GOROSPE  Notes, Updates and Teasers CONSTITUTIONAL LAW No Page 2 of 99 T hese notes on Constitutional on Constitutional Law are Law are to be taken as a quick reference to general ideas and fairly recent decisions which light up and enliven the study of the subject. They presuppose that one has at least done his or her homework through the years and these are just reminders of what were, ticklers of recent application ap plication of rules, principles principles and doctrines, doct rines, and an invitation invitation to an exploration of what may lie beyond. The study of law is best had if enjoyed. These notes are intended to be both informative and entertaining. Reviewees are also entitled to have fun even while preparing to take on the Bar exams.1 As had been writ: “A judicial decision does not have to be a bore.”2 Neither must a Bar review material be. It need not be a bland presentation of what has been. It might as well pick brains and prick some civic conscience in preparation for eventual practice as a responsible and respectable particle of sovereignty. So, here’s to humoring the Bar exams. There’s nothing as unnerving as approaching a problem from a perspective of trepidation. March on with confidence, head up high, a smile on your face and faith in yourself. yourself. The Bar exercise is just a good opportunity to prove and improve yourself. yourself. It is not an adversary  but an ally, ally, and and even if it were, it is one that you can persuade persuade and convince convince to become a lif lifelong elong friend. friend. THE FUNDAMENTAL POWERS AND THE BILL OF R IGHTS IGHTS Governance Governa nce is the art and science of carefully balancing competing compet ing needs, concerns, co ncerns, wants, desiderata d esiderata and values of society, all demanding acceptance and preeminence. Insofar as the government and the  people are concerned, their interests interests may every now and then clash clash or compete for ascendancy, ascendancy, for for which which a careful weighing weighing of various considerations considerations has to be done to ensure that the demands of authority do not lead to slavery and the claims of liberty do not end up in anarchy.3 More recently, the Court also framed it in this wise: “[H]ow does the Charter of a republican and democratic State achieve a viable and acceptable acceptable balance between liberty, without which, government becomes an unbearable tyrant, and authority, without which, society becomes an intolerable and dangerous for the present, present , such balancing balancing may assume assume greater great er importance as the g government overnment arrangement?”4 And, for tries to come up with a society free of drug-related crimes while still respecting basic human rights. On the side of authority, you have the inherent and fundamental powers of the government – police  power, eminent eminent domain, domain, and taxation taxation – powers by which which its its goals may may be be achieved achieved and and its its will will enforced and implemented. On the other end, you have the guarantees and safeguards found in the Bill of Rights. And, in this regard the Court has held that “[i]n the complex but exquisite scheme laid down by the Constitution, the Bill of Rights occupies a position of primacy, way above the articles on governmental JURISTS REVIEW CENTER  power.”5 1  In regard to the need for an examination in the first place, take note of wh at the Court said in  Antolin v. Domondon, Domondon , 623 SCRA 163 (2010): “Examinations have a two-fold purpose. First, they are summative; examinations are intended to assess and record what and how much the students have learned. Second, andAR perhapsEVIEW more importantly, they are formative; examinations are intended to be  part and parcel of the lear ning process. In a perfect system, they are tools for learning.” B 2 3 4 5  Francisco v. Permskul , 173 SCRA 324 (1989) R  See Calalang v. Williams, Williams, 70 Phil. 726 (1940) R 2017 B G GMA Network, Inc. v. Commission on Elections, Elections , 734 SCRA 88 (2014)  People v. Rapeza, Rapeza, 520 SCRA 596 (2007), penned by Justice Tinga. This is a reiteration of his ear lier ponencia in People in People v. Tudtud , vis-à-vis A Library Of Liberties  An Arsenal Of Arms 412 SCRA 142 (2003), where it was held : “The Bill of Rights is the bedrock of constitutional constitutional government. If people people are stripped nak ed of their rights as human beings, democracy cannot cannot survive and government becomes meaningless. This explains why the Bill of Rights, R B GOROSPE  Notes, Updates and Teasers CONSTITUTIONAL LAW No Page 2 of 99 T hese notes on Constitutional on Constitutional Law are Law are to be taken as a quick reference to general ideas and fairly recent decisions which light up and enliven the study of the subject. They presuppose that one has at least done his or her homework through the years and these are just reminders of what were, ticklers of recent application ap plication of rules, principles principles and doctrines, doct rines, and an invitation invitation to an exploration of what may lie beyond. The study of law is best had if enjoyed. These notes are intended to be both informative and entertaining. Reviewees are also entitled to have fun even while preparing to take on the Bar exams.1 As had been writ: “A judicial decision does not have to be a bore.”2 Neither must a Bar review material be. It need not be a bland presentation of what has been. It might as well pick brains and prick some civic conscience in preparation for eventual practice as a responsible and respectable particle of sovereignty. So, here’s to humoring the Bar exams. There’s nothing as unnerving as approaching a problem from a perspective of trepidation. March on with confidence, head up high, a smile on your face and faith in yourself. yourself. The Bar exercise is just a good opportunity to prove and improve yourself. yourself. It is not an adversary  but an ally, ally, and and even if it were, it is one that you can persuade persuade and convince convince to become a lif lifelong elong friend. friend. THE FUNDAMENTAL POWERS AND THE BILL OF R IGHTS IGHTS Governance Governa nce is the art and science of carefully balancing competing compet ing needs, concerns, co ncerns, wants, desiderata d esiderata and values of society, all demanding acceptance and preeminence. Insofar as the government and the  people are concerned, their interests interests may every now and then clash clash or compete for ascendancy, ascendancy, for for which which a careful weighing weighing of various considerations considerations has to be done to ensure that the demands of authority do not lead to slavery and the claims of liberty do not end up in anarchy.3 More recently, the Court also framed it in this wise: “[H]ow does the Charter of a republican and democratic State achieve a viable and acceptable acceptable balance between liberty, without which, government becomes an unbearable tyrant, and authority, without which, society becomes an intolerable and dangerous for the present, present , such balancing balancing may assume assume greater great er importance as the g government overnment arrangement?”4 And, for tries to come up with a society free of drug-related crimes while still respecting basic human rights. On the side of authority, you have the inherent and fundamental powers of the government – police  power, eminent eminent domain, domain, and taxation taxation – powers by which which its its goals may may be be achieved achieved and and its its will will enforced and implemented. On the other end, you have the guarantees and safeguards found in the Bill of Rights. And, in this regard the Court has held that “[i]n the complex but exquisite scheme laid down by the Constitution, the Bill of Rights occupies a position of primacy, way above the articles on governmental JURISTS REVIEW CENTER  power.”5 1  In regard to the need for an examination in the first place, take note of wh at the Court said in  Antolin v. Domondon, Domondon , 623 SCRA 163 (2010): “Examinations have a two-fold purpose. First, they are summative; examinations are intended to assess and record what and how much the students have learned. Second, andAR perhapsEVIEW more importantly, they are formative; examinations are intended to be  part and parcel of the lear ning process. In a perfect system, they are tools for learning.” B 2 3 4 5  Francisco v. Permskul , 173 SCRA 324 (1989) R  See Calalang v. Williams, Williams, 70 Phil. 726 (1940) R 2017 B G GMA Network, Inc. v. Commission on Elections, Elections , 734 SCRA 88 (2014)  People v. Rapeza, Rapeza, 520 SCRA 596 (2007), penned by Justice Tinga. This is a reiteration of his ear lier ponencia in People in People v. Tudtud , vis-à-vis A Library Of Liberties  An Arsenal Of Arms 412 SCRA 142 (2003), where it was held : “The Bill of Rights is the bedrock of constitutional constitutional government. If people people are stripped nak ed of their rights as human beings, democracy cannot cannot survive and government becomes meaningless. This explains why the Bill of Rights, R B GOROSPE  Notes, Updates and Teasers CONSTITUTIONAL LAW No Page 3 of 99 In this interplay interplay between power and authority aut hority,, on o n one o ne hand, and liberty liberty and freedom, on the t he other, note must be taken ta ken of the fact that just like anything else, else, values, concepts conce pts and ideas change thro ugh time. What may have been recognized as outside the domain of State State regulation in in the past would wo uld no longer  6  be so immune immune from governmental governmental interference interference in later years.   As was said in one case, “What was ‘robbery’ in 1874 is now called ‘social justice.’”7 Or, as stated in elsewhere, “Social justice is not based on rigid formulas set in stone. It has to allow for changing times and circumstances.”8 A. THE FUNDAMENTAL POWERS These fundamental powers are inherent in the national government, exercised by the legislature, and are only bestowed upon others, like the local government units, as a result of delegation. In the exercise of police power, there must be compliance with the requirements of legitimate ends  being  being accompli accomplished shed through legitim legitimate ate means. means.9 This power is the most pervasive, illimitable illimitable and plenary, affecting liberty and property of individuals for the advancement of the common good. It essentially embodies the right of the State to enact laws for the purpose of promoting the public welfare by restraining and regulating liberty and the use of property. Its also been said that “the test of  constitutionality of a police power measure is limited to an inquiry on whether the restriction imposed on constitutional rights is reasonable, and not whether it imposes a restriction on those rights,” and that it “does not rely upon the existence of definitive studies to support its use. Indeed, no requirement exists that the exercise of police power must first be conclusively justified by research. . . . Scientific certainty and conclusiveness, though tho ugh desirable, may not be demanded in every situat situation. ion. Otherwise, no government gove rnment will be able to act in situations demanding the exercise of its residual powers because it will be tied up conducting studies.”10 As for the power of condemnation, the Constitution already provides the allowable standards for its exercise – public use and just compensation.11 But then note must be taken of the expanded meaning meaning of  the term “public “public use” – “the concept of o f public public use is not limited limited to traditional tr aditional purposes. purpo ses. Here as elsewhere the idea that t hat ‘public use’ is strictly lim limited ited to clear cases of o f ‘use by the public’ has been discarded.”12 And  And case law has recently come up with newer rules relative to the exercise of this power. Taxation, of o f course, must not be exercised in an unreasonable, oppressive opp ressive and confiscato confiscatory ry manner. manner.13 Or, in the language of of Philippine  Philippine Health Care Providers, Inc. v. Commissioner of Internal Internal Revenue,600 Revenue, 600 SCRA 413 (2009), “[l]egitimate enterprises enjoy the constitutional protection not to be taxed out of  existence.” Also, it must not be forgotten that the exercise of the power of taxation constitutes a deprivation deprivation of property pro perty under the due process clause, and the taxpayer’s right right to due process is violated violated JURISTS REVIEW CENTER contained as it is in Article III of the Constitution, occupies a position of primacy in the fundamental law way above the articles on governmental power.” 6 7 8 9  See People  See People v. Pomar , 46 Phil. 440 (1924)  Bengzon v. Drilon, Drilon , 208 SCRA 133 (1992) BAR REVIEW 2017  Agabon v. Nation al Labor Relations Commission, Commission, 442 SCRA 573 (2004) Ynot v. Intermediate Appellate Court , Court , 148 SCRA 659 (1987) 10 11 12 13 R B G  Mirasol v. Department of Public Works and Highways, Highways , 490 SCRA 318 (2006)  Article III, §9  Heirs of Juancho Ar v. Reyes, ReyesOf , 125Liberties SCRA 220 (1983) vis-à-vis An A dona Library  See Reyes  See Reyes v. Almanzor , 196 SCRA 322 (1991) Arsenal Of Arms R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 4 of 99 when arbitrary or oppressive methods are used in assessing and collecting taxes.14 Further, in regard to the delegation by the Constitution itself of the taxing power to the Local Government Units, Congress is not stripped of its power to exempt certain entities from local taxation.15 And, on residual powers of  local government units, the Court has held that “[a] local government unit may exercise its residual power  to tax when there is neither a grant nor a prohibition by statute; or when such taxes, fees, or charges are not otherwise specifically enumerated in the Local Government Code, National Internal Revenue Code, as amended, or other applicable laws. In the present case, Section 140, in relation to Section 131(c), of  the Local Government Code already explicitly and clearly cover amusement tax and respondent Cebu City must exercise its authority to impose amusement tax within the limitations and guidelines as set forth in said statutory provisions.”16 1. Fernando v. St. Scholastica’s College , 693 SCRA 141 (2013) A local ordinance mandated that fences should only be one-meter high, or if they are higher, then they must be 80% see-thru, aside from requiring a 6-meter setback for parking purposes. That regulation meant that the school’s concrete perimeter fence built long time ago would have to be dismantled to make way for the set-back, as well as to comply with the height or see-thru requirement. The Court held both requirements are beyond the valid exercise of police power. The ordinance is oppressive of private rights. It did not see how an 80% see-thru fence could provide better protection and a higher level of security, or serve as a more satisfactory criminal deterrent, than a tall solid concrete wall. “It may even be argued that such exposed premises could entice and tempt would-be criminals to the property, and that a see-thru fence would be easier to bypass and breach. It also appears that the respondents’ concrete wall has served as more than sufficient protection over the last 40 years.” But would not the requirement also contribute to the aesthetic sense? Well, “the State may not, under the guise of police power, infringe on private rights solely for the sake of the aesthetic appearance of the community. Similarly, the Court cannot perceive how a see-thru fence will foster ‘neighborliness’  between members of a community.” Hence, “[c]ompelling the respondents to construct their fence in accordance with the assailed ordinance is, thus, a clear encroachment on their right to property, which necessarily includes their right to decide how best to protect their property.” In addition, the Court stated: “It also appears that requiring the exposure of their property via a see-thru fence is violative of their right to privacy, considering that the residence of the Benedictine nuns is also located within the property. The right to privacy has long been considered a fundamental right guaranteed by the Constitution that must  be protected from intrusion or constraint. The right to privacy is essentially the right to be let alone, as governmental powers should stop short of certain intrusions into the personal life of its citizens.” How about the set-back requirement? The Court saw through the real intent of the regulation – taking JURISTS REVIEW CENTER without compensation. “[T]he real intent of the setback requirement was to make the parking space free for use by the public, considering that it would no longer be for the exclusive use of the respondents as it would also be available for use by the general public. . . . The petitioners cannot justify the setback by BAR REVIEW 2017 arguing that the ownership of the property will continue to remain with the respondents. It is a settled rule that neither the acquisition of title nor the total destruction of value is essential to taking. In fact, it is usually in cases where the title remains with the private owner t hat inquiry should be made to determine R 14 15 16 B G Yamane v. BA Lepanto Condominium Corporation, 474 SCRA 258 (2005) City Government of City v. Bayan Telecommunications, Inc. , 484Arsenal SCRA 169 (2006) vis-à-vis AQuezon Library Of Liberties  An Of Arms  Alta Vista Golf and Country Club v. City of Cebu, 781 SCRA 335 (2016) R B GOROSPE  Notes, Updates and Teasers CONSTITUTIONAL LAW No Page 5 of 99 whether the impairment of a property is merely regulated or amounts to a compensable taking.” In this case, the implementati implementation on of the setback requirement would be tantamount t antamount to a taking of private property prope rty for public use without just compensation, in contravention to the t he Constituti Co nstitution. on. 2.  Hermano Oil Manufacturing Manufacturing & Sugar Corporation Corporation v. Toll Toll Regulatory Regulatory Board , 742 SCRA 395 (2014) In this case, the Court held that in a valid exercise of police power, there is no taking that has to be compensated. Here, the owner of a piece of land along the North Luzon Expressw E xpressway ay (NLEX) contended that the presence of an access fence deprived it of the enjoyment and possession of its property since it was barred from ingress ingress into into or egress from the NLEX. No t so, the Court said. The access fence is part of the safety measures in place necessary for the high-speed highway. “It is relevant to mention that the access fence was put up pursuant to Republic Act No. 2000 (Limited Access Highway Act), the enforcement of which was under the authority of the DOTC. . . . [T]he access fence was a reasonable restriction restriction on o n the petiti pet itioner’s oner’s property given the location thereof at the right side side of o f Sta. Rita Exit of the  NLEX. Although Although some adjacent adjacent properties were accorded unrestricted unrestricted access to the expressway, expressway, there was a valid and reasonable classification for doing so because their owners provided ancillary services to motorists using using the t he NLEX, like gasoline gasoline service stations and food foo d stores. st ores. A classif classificati ication on based on on  practical convenience convenience and and common common knowledge knowledge is is not not unconstitutional simply simply because it may may lack purely theoretical theo retical or scientific scientific uniformity. uniformity. Lastly, the lim limited ited access acce ss imposed imposed on the t he petitioner’s propert pro perty y did not not  partake of a compensable compensable taking due to the exercise exercise of the power po wer of eminent domain. domain. There is no question that t he property was not ta taken ken and devoted for public public use. Instead, the pro perty was subjected subjected to a certain restraint, i.e., i.e. , the access fence, in order to secure the general safety and welfare of the motorists using using the NLEX.” Secretary of the Department of Social Welfare and  3.  Manila Memorial Park, Inc. v. Secretary  Development , 711 SCRA 302, 366 (2013) With regard to the effect of the senior citizen’s discount and the element of taking  that  that is involved in it, the following passage is enlightening. “It should be noted though that potential profits or  income/gross sales are relevant in police power and eminent domain analyses because they may, in appropriate cases, serve as an indicia when a regulation has gone ‘too far’ as to amount to a ‘taking’ under the power of eminent domain. When the deprivation or reduction of profits or income/gross sales is shown to be unreasonable, oppressive or confiscatory, then the challenged governmental regulation may be nullified for being a ‘taking’ under the power of eminent domain. In such a case, it is not profits or income/gross sales which are actually taken and appropriated for public use. Rather, when the regulation causes ca uses an establishment establishment to incur losses in an unreasonable, unreaso nable, oppressive oppre ssive or confiscatory manner, what is actually taken is capital and the rightR ofEVIEW the business establishment to a reasonable return on JURISTS CENTER investment. If the business losses losses are not halted because of the continued cont inued operation operat ion of the regulation, reg ulation, this eventually leads to the destruction of the business and the total loss of the capital invested therein.” B R 2017 AR Here, the petitioners failed to prove that the EVIEW regulation is unreasonable, oppressive or confiscatory. 4. Commissioner of Internal Revenue v. United Salvage and Towage (Phils.), Inc. , 729 SCRA 113 (2014) R B G The following lines from this case provide comfort and a reassurance that the exercise of the taxing cannot countenance an  power could not be allowed allowed to berserk vis-à-vis and get wild: wil d: Arsenal “This Court A Library Ofrun Liberties  An Of Arms assessment based on estimates that appear to have been arbitrarily or capriciously arrived at  . R B GOROSPE  Notes, Updates and Teasers CONSTITUTIONAL LAW No Page 6 of 99 Although taxes are the lifeblood of the government, their assessment and collection ‘should be made in accordance with law as any arbitrariness will negate the very reason for government itself.’” The Court added: “[W]e ought to reiterate our earlier earlier teachings that ‘in balan balancin cing g the t he scales between the power of  the State Stat e to tax and its inherent inherent right to pro secute perceived transgressors of the law on one side, and t he constitutional rights rights of a citizen citizen to due process pro cess of law law and the equal protection protect ion of the laws laws on the o ther, the scales must tilt t ilt in favor of the individual, individual, for a citizen’s right is amply protected protec ted by the Bill of Rights under the Consti Co nstitution.’ tution.’ Thus, while while ‘taxes are the lifeblood lifeblood of o f the governm go vernment,’ ent,’ the power to t o tax t ax has its limits, in spite of all its plenitude. Even as we concede the inevitability and indispensability of taxation, it is a requirement in all democratic regimes that it be exercised reasonably and in accordance with the  prescribed  prescribed procedure. After all, all, the statute of limi limitations tations on the collection collection of taxes was also also enacted to  benefit  benefit and protect the t he taxpayers.” taxpayers.” B. BILL OF R IGHTS IGHTS Taking up the cudgels for liberty are the guarantees contained basically in the Bill of Rights. As the Court observed o bserved in in People v. Legaspi, Legaspi, 331 SCRA 95 (2000), the Bill of Rights is the mechanism for the delicate balance between governmental power and individual liberty, without which man is stripped of  his humanity and society becomes a putrid dump of lost lives. “The very purpose of a Bill of Rights was to withdraw withdr aw certain certa in subjects from the vicissitudes vicissitudes of political controversy, controve rsy, to place them beyond the reach of majorities and official officialss and to establish them as legal principles principles to be applied by the courts. co urts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other  fundamental fundamental rights rights may not be submitted submitted to vote; they depend on o n the outcome o utcome of no elections.” elections.”17 The bundle of freedoms and liberties guaranteed by the Bill of Rights is essentially directed against the State and its agencies and instrumentalities only. It could not be invoked against private persons.18 In  Atienza,  Atienz a, Jr. v. Commission on Elections, Elections, 612 SCRA 761 (2010), the Court held that the requirements of administrat administrative ive due process pro cess do not no t apply app ly to the internal affairs affairs of political parties. The due  process standards set in Ang in Ang Tibay cover Tibay cover only administrative bodies created by the state and through which certain governmental acts or functions are performed. “The discipline of members by a political  party does not involve involve the right right to life, life, lib liberty erty or property within within the meanin meaning g of the due process clause. An individual has no vested right, as against the state, to be accepted or to prevent his removal by a  political  political party. The only rights, if any, any, that party members members may have, in in relation relation to other party party memb members, ers, correspond to those that may have been freely agreed upon among themselves through their charter, which is a contract among the party members. Members whose rights under their charter may have been violated violated have recourse to courts of o f law for the enforcement enforcement of those rights, rights, but not as a due process proc ess issue issue against the government or any of its agencies.”RIn Sesbreño Court of Appeals, Appeals, 720 SCRA 57 (2014), JURISTS Cv. EVIEW ENTER the presence of a policeman in an inspection of the electric meter of a residence for possible meter  tampering was not considered co nsidered as a situation subject to the provisi pro vision on of the Bill of Rights on searches se arches and seizures. seizures. The part icipation icipation of the po liceman, liceman, not an employee t he private electric electric company, was to BAR R 2017of the EVIEW render police assistance to ensure the personal security of private entity’s employees during the inspection, rendering him a necessary part of the team as an authorized representative. R B G  Nevertheless,  Nevertheless, even as it is true that “[t]he Constitution cannot control [private] [private] prejudices, prejudices, but neither  17 18 West Virginia State of Education v. Barnette, Barnette , 319 US 624 (1943) vis-à-vis ABoard Library Of Liberties  An Arsenal Of Arms  See People  See People v. Marti, Marti , 193 SCRA 57 (1991) and Serrano v. NLRC , 323 SCRA 445 (2000). R B GOROSPE  Notes, Updates and Teasers CONSTITUTIONAL LAW No Page 7 of 99 can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or  indirectly, give them effect.”19 C. DUE PROCESS Due process might as well provide provide a sort of a “Swiss Army Knife” guarantee given its adaptability and flexibili flexibility ty as a legal argument. The Due The Due Process Process Clause is Clause is a handy legal legal tool too l for for the prot p rotection ection of o f the valued rights to life, liberty and property, and all other freedoms and liberties that inhere or adhere to them. It provides pro vides both a safeguard to ensure e nsure fairness fairness in the proceedin proceed ings gs that may be taken towards the t he deprivation of any liberty or property interests, or the impairment of any other right or freedom, as well as the guarantee of reasonableness in the enactment of laws and other regulations which impact life, liberty and property.  Person includes  Person includes both citizens and aliens, natural and juridical. It may not encompass, however, the foetus, or the unborn child child20 though the t he 1987 Constitution has thought it advisabl advisablee to provide protection 21 for the unborn together with its its mother.  “The clear and unequivocal intent of the Framers of the 1987 Constitution in protecting the life life of the unbor u nborn n from conception was to t o prevent the Legislature Legislature from enacting a measure legalizing abortion. It was so clear that even the Court cannot interpret it otherwise. This intent of the Framers was captured in the record of the proceedings of the 1986 Constitutional Commission.”22 Even the decedent is entitled to some form of protection in so far as his or her estate estat e is concerned.23 As for for life, life, liberty liberty and property, prop erty, while all all of these are pro tected, tect ed, the extent ext ent of the care and importance they get are not the same – some things are simpl simply y worth much more than others. Thus, when property rights come into conflict with human rights, the former must give way to the latter.24 “[W]hen freedom of the mind is imperiled by law, it is freedom that commands a momentum of respect; when property is imperiled, it is the lawmakers’ judgment that commands respect. This dual standard may not precisely reverse the t he presumption of constitutionality const itutionality in in civil civil liberties liberties cases, but obviously o bviously it it does do es set up a hierarchy 25 of values within the due process clause.”  And, the Court also stated that, “based on the hierarchy of  constitutionally constitutionally protected rights, the right to life life enjoys enjoys precedence over t he right to property. The reason is obvious: life life is irreplaceable, property pro perty is not. When the state stat e or LGU’s exercise of police power powe r clashes 26 with a few indivi individuals’ duals’ right to pro perty, the t he former should prevail.” pr evail.”  As between right not to join labor  organizations, the Court had this to say: “In the hierarchy of constitutional values, this Court has repeatedly held that the right to abstain from joining a labor organization is subordinate to the policy of  19 20 21 22 23  Palmore v. Sidoti, Sidoti , 466 U.S. 529 (1984) J  See Roe  See Roe v. Wade, Wade, 410 U.S. 113 (1973)URISTS REVIEW CENTER  The State “shall equally protect the life of the mother and the life of the unborn from conception.” (Art. II, §12)  Imbong v. Ochoa, Jr., Jr. , 721 SCRA 146 (2014) B R 2017  The Court observed in Republic in Republic v. Marcos-Manotoc, Marcos-Manotoc SCRA 367(2012): “Since the pendin g case before the Sandiganbayan AR , 665 EVIEW survives the death of Ferdinand E. Marcos, it is imperative therefore that the estate be duly represented. The purpose behind this rule is the protection of the right to due process of every party to a litigation who may be affected by the intervening death. The deceased litigant is himself protected, as he continues to be properly represented in the suit th rough the duly appointed legal representati ve of his estate.” R 24 25 26 B G  PBM Employees Org. v. PBM Co., Inc. , 51 SCRA 184 (1973) Tolentino v. Secretary of Finance, Finance ,Of 235 Liberties SCRA 630 (1994) vis-à-vis An A Library Social Justice Society v. Atienza, Jr. , 545 SCRA 92 (2008) Arsenal Of Arms R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 8 of 99 encouraging unionism as an instrument of social justice.”27 Also, “[t]he law recognizes that the enjoyment of a private reputation is as much a constitutional right as the possession of life, liberty or property.”28 (Citing Worcester v. Ocampo, 22 Phil. 42 [1912])] And, if there is a hierarchy of rights, there is also a hierarchy of evidentiary values which calls into  play the guarantee of the Due Process Clause if the inappropriate quantum of proof is demanded by the adjudicator in a particular proceeding.29 Relevant to the chore of weighing conflicting values are so-called standards of review or levels of  scrutiny, or those instruments of measurement for validity of rules and regulations, adjustable and flexible depending on the interests and values involved. These would be the deferential  or rational relationship test , the intermediate or heightened scrutiny, and finally, strict scrutiny. Determining whether there is sufficient justification for the government’s action depends very much on the level of scrutiny used.30 This simply means that “if the liberty involved were freedom of the mind or the person, the standard for the validity of governmental acts is much more rigorous and exacting, but where the liberty curtailed affects what are at the most rights of property, the permissible scope of regulatory measures is wider.” Thus, under deferential review, laws are upheld if they rationally further a legitimate governmental interest, without courts seriously inquiring into the substantiality of such interest and examining the alternative means by which the objectives could be achieved. Under intermediate review, the substantiality of the governmental interest is seriously looked into and the availability of less restrictive alternatives are considered. Under strict scrutiny, the focus is on the presence of compelling, rather than substantial governmental interest and on the absence of less restrictive means for achieving that interest. Strict scrutiny is a judicial standard for determining the quality and the amount of governmental interest bro ught to justify the regulation of fundamental freedoms. It is used to day to test the validity of laws dealing with the regulation of speech, gender, or race and facial challenges are allowed for this purpose.31 The Court has also declared: “[C]onstitutional due process demands a higher degree of clarity when infringements on life or liberty are intended. . . . In the matter of statutes that deprive a person of physical liberty, the demand for a clearer standard in sentencing is even more exacting.”32 If one were to have a better appreciation of these “standards of review,” why not try to reminisce about the law school years where classroom sessions were either a bore, moments of trepidation and incessant prayers or occasions for hilarious incidents, courtesy of members other than the ones enjoying 27  Bank of the Philippine Islands v. BPI Employees Union-Davao Chapter-Federation of Unions in BPI Unibank , 627 SCRA 590 (2010) 28 29 30 31 Ty-Delgado v. House of Representatives Electoral Tribunal , 782 SCRA 117 (2016)  Manalo v. Roldan-Confesor , 215 SCRA 808 (1992) JURISTS REVIEW CENTER City of Manila v. Laguio, Jr.,  455 SCRA 308 (2005)  See Justice V.V. Mendoza’s discussions in Estrada v. S andiganbayan, 369 SCRA 394 (2001) B R 2017 In League of Cities, 571 SCRA 263 (2008), we also this in n. 23: ARfind EVIEW “The rational basis test  is the minimum level of scrutiny that all government actions challenged under the equal protection clause must meet. The strict scru tiny test  is used in discriminations based on race or those which result in violations of fundamental rights. Under the st rict scrutiny test, to be valid the classification must promote a compelling state interest . The intermediate scrutiny test  is used in discriminations based on gender or illegitimacy of children. Under the intermediate scrutiny test, the classification must be substantially related to an important  government objective. Laws not subject to the stri ct or intermediate scrutiny test ar e evaluated under the rational basis test , which is the easiest test to satisfy since the classification must only show a rational relationship  to a legitimate government purpose. Chemerinsky, 2 nd Edition, pp. 645-646.” See ErwinOf Constitutional Law, Principles and Policies, vis-à-vis A Library Liberties  An Arsenal Of Arms R 32  People v. Bon, 506 SCRA 168 (2006) B G R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 9 of 99 the fun? A student’s preparations for each subject then were generally dictated by the kind of professors he or she might have had – whether members of terrorist cells or the soft and kind apostles of nonviolence and charity. As for property, aside from those normally owned, it must also be understood that a final judgment vests in the prevailing party a right recognized and protected by law under the due process clause of the Constitution – it is a vested interest which the government should recognize and protect, and of which the individual could not be deprived arbitrarily of without committing an act of injustice. 33 Likewise, where an employee retires and meets the eligibility requirements under the law, he acquires a vested right to benefits that is protected by the due process clause.34 And, while one may not be deprived of what is his vested right, the same may be lost if such deprivation is founded in law and jurisprudence, such as in legal separation where the guilty spouse may end forfeiting his share in the conjugal property.35 Public office is not property, and one cannot insist on staying in office if the office has already been abolished. But to the extent that one’s right to security of tenure may be impaired, to that extent may due  process be called upon for assistance. Unduly long preventive suspension could also be assailed on due  process grounds.36 Licenses, while merely in the nature of a privilege, are not also insulated from the checking effects of the Due Process Clause, especially if abuse attended their withdrawal or discontinuance.37 The mere fact that one’s claim to something might be based on a privilege and not a right is not determinative of  the appropriateness of invoking due process – reliance on the “right privilege dichotomy” has long been denigrated by leading lights in administrative law as “too crude for consistent application” by courts. 38 “Under traditional form of property ownership, recipients of privileges or largesses from the government could be said to have no property rights because they possessed no traditionally recognized proprietary interest therein. . . . But the right-privilege dichotomy came to an end when courts realized that individuals should not be subjected to the unfettered whims of government officials to withhold privileges  previously given to them. Indeed to perpetuate such distinction would leave the citizens at the mercy of  State functionaries, and worse, threaten the liberties protected by the Bill of Rights.”39 Sight must not be lost of the fact that the Clause has two faces or components – the procedural and the substantive. The former is essentially directed at officers who adjudicate while the latter is directed  basically at those who enact the laws. The first refers to the guarantees of fairness in the process of  determining whether a right, liberty or freedom is to be impaired or otherwise taken away while the latter  goes to the very power of the authorities to come up with rules and other strictures under which man may live and enjoy the blessings of a civilized society, including the price that he has to pay to stay. Then again, it must not also be forgotten that procedural due process operates differently under  33 34 35 36 JURISTS REVIEW CENTER  Manotok Realty, I nc. v. CLT Realty Development Corporation , 476 SCRA 305 (2005)  Betoy v. Board of Dir ectors, National Power Corporation, 658 SCRA 420 (2011) Quiao v. Quiao, 675 SCRA 642 (2012) BAR REVIEW 2017  See Layno, Sr. v. Sandigan bayan, 136 SCRA 536 (1985) and Deloso v. Sandig anbayan, 173 SCRA 409 (1989) 37  “[P]ilotage as a profession has taken on the nature of a property right.” ( Corona v. United Harbor Pilots Association of the  Philippines, 283 SCRA 31 [1997]) R B G On the other hand, it has been held that an “ai rman license cannot be considered a property right, it is but a mere pr ivilege, subject to the restrictions imposed by the ATO and its revocation if warranted.” ( Ledesma v. Court of Appeals, 541 SCRA 444 [2007]) 38 39  Mabuhay Textile Mills Corpor ation Ongp in, 141 SCRA 437 (1986) vis-à-vis A Library Ofv. Liberties  An Arsenal Of Arms Terminal Facilities and Services Corporation v. Philippine Ports Authority , 378 SCRA 82 (2002) R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 10 of 99 changing circumstances. “Classic procedural due process issues are concerned with what kind of notice and what form of hearing the government must provide when it takes a particular action.”40 Or, as stated in another case: “Procedural due process requires a determination of what process is due, when it is due, and the degree of what is due.”41 What may be required for purposes of judicial proceedings would not  be the same in administrative proceedings.42 Those that satisfy the requirements of due process in the investigation of local appointive officials would not suffice for elective officials,43 and so on. It has also  been held that where the trial court simply considered the person and past performance of the witness, and decided on this basis that he was a credible witness, rather than look at the merits of his testimony, such act, by itself, was a major error, a violation of due process – a court must always decide on the basis of the evidence presented, not on the basis of any other extraneous consideration not before it.44 Basic to the idea of procedural due process is the presence of an impartial magistrate or tribunal, if  fairness is to be had. 45 In Office of the Court Administrator v. Floro, Jr., 486 SCRA 66 (2006), it was held that where a judge entertains an unorthodox belief system – such as believing in “psychic visions,” and in dwarfs, and in being able to write while on trance, of having been seen by several people in two  places at the same time, and of foreseeing the future because of his power of “psychic phenomenon” –  the same indubitably shows his inability to function with the cold neutrality of an impartial judge. Such  beliefs, specially so when acted upon by the judge, are so at odds with the critical and impartial thinking required of a magistrate. The judiciary is certainly not the proper place for such a person to stay. And, in Rubin v. Corpus-Cabochan, 702 SCRA 330 (2013), the Court pointed out: “It must be borne in mind that the inhibition of judges is rooted in the Constitution, specifically Article III, the Bill of Rights, which requires that a hearing is conducted before an impartial and disinterested tribunal because unquestionably, every litigant is entitled to nothing less than the cold neutrality of an impartial judge. All the other  elements of due process, like notice and hearing, would be meaningless if the ultimate decision would come from a partial and biased judge.” On substantive due process, relevant here is the concept of the “void-for vagueness” doctrine . It is “most commonly stated to the effect that a statute establishing a criminal offense must define the offense with sufficient definiteness that persons of ordinary intelligence can understand what conduct is prohibited  by the statute. It can only be invoked against that specie of legislation that is utterly vague on its face, i.e., that which cannot be clarified either by a saving clause or by construction.”46 A statute or act may  be said to be vague when it lacks comprehensible standards that men of common intelligence must necessarily guess at its meaning and differ in its application. In such instance, the statute is repugnant to the Constitution in two (2) respects – it violates due process for failure to accord persons, especially the  parties targeted by it, fair notice of what conduct to avoid; and, it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle. And JURISTS REVIEW CENTER 40 41 42 43 44 45 City of Manila v. Laguio, Jr., 455 SCRA 308 (2005) Secretary of Justice v. Lantion, 343 SCRA 377 (2000) B R 2017 AR EVIEW Cf. Banco Español-Filipino v. Palanca, 37 Phil. 921 (1918) and Ang Tibay v. Court of Industrial Relations, 69 Phil. 635 (1940)  Joson v. Torres, 290 SCRA 279 (1998)  People v. Sanchez , 569 SCRA 194 (2008) R B G  “It must be borne in mind that the inhibition of judges is rooted in the Constitution, specifically Article III, the Bill of Rights, which requires that a hearing is conducted before an impartial and disinterested tri bunal because unquestionably, every litigant is entitled to nothing less than the cold neutrality of an impartial judge. All the other elements of due process, like notice and hearing, would be meaningless if the ultimateA d ecision wouldOf come from a partialvis-à-vis and biased judge.” v. Corpus-Cabochan, Library Liberties  An ( Rubin Arsenal Of Arms 702 SCRA 330 [2013]). 46  Estrada v. Sandiganba yan, 369 SCRA 394 (2001) R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 11 of 99 what about the overbreadth doctrine ? This doctrine decrees that a governmental purpose may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms. If one’s purpose is simply to roast a pig, then he need not have to burn the barn. Due Process guaranties have far-reaching consequences and ramifications. In the United States, for  instance, it has been implicated in the right of a woman to have an abortion,47 and likewise it has been attempted – unsuccessfully – to justify a claim to a right to suicide. 48 And, it has also been invoked to  justify the compelled production of relevant presidential materials as against a generalized assertion of  executive privilege.49  So, too, does due process makes its presence know in the requirement for  reasonableness of presumptions,50  as well as in relation to the right not to be subjected to excessive exemplary damages.51 In regard to criminal cases, due process is implicated in the determination of the voluntariness and admissibility of extrajudicial confessions,52 the requirement for public trial53 and the reasonable doubt standard   are deemed dictates of due process.54 Court access by prisoners is also considered part of the guarantee. “The constitutional guarantee of due process of law has as a corollary the requirement that prisoners be afforded access to the courts in order to challenge unlawful convictions and to seek redress for violations of their constitutional rights. This means that inmates must have a reasonable opportunity to seek and receive the assistance of attorneys.”55 In the Philippines, the Court has ruled, for instance, that inordinate reliance on technical rules of   procedure may also offend the guarantee.56 Exorbitant and unreasonable filing fees likewise violate due  process. “A filing fee, by legal definition, is that charged by a public official to accept a document for   processing. The fee should be just, fair, and proportionate to the service for which the fee is being collected, . . .” The due process clause permits the courts to determine whether the regulation imposing such fees is reasonable and within the bounds of its rate-fixing authority and to strike it down when it arbitrarily infringes on a person’s right to property.57 Due process has also been referred to in relation to 47  See Roe v. Wade, 410 U.S. 113 (1973) In Imbong v. Ochoa, 721 SCRA 146 (2014), the Court declared: “The clear and unequivocal intent of the Framers of the 1987 Constitution in protecting the life of the unborn from conception was to prevent the Legislature from enacting a measure legalizing abortion. It was so clear that even the Court cannot interpret it otherwise. This intent of the Framers was captured in the record of  the proceedings of the 1986 Constitutional Commission.” 48 49 50  See Washington v. Glucksberg , 521 U.S. 702 (1997) JURISTS REVIEW CENTER United States v. Nixon, 418 U.S. 683 (1974) Tot v. United States, 319 U.S. 463 (1943) 51 B R 2017  See BMW of North America, Inc. v. Gore, Jr. , 517 U.S. 559 (1996); Cooper Industries, Inc. v. Leatherman Tool Group, Inc., AR EVIEW 532 U.S. 424 (2001); and, State Farm Mutual Automobile Insurance Company v. Campbell , 538 U.S. 408 (2003). 52 53 54 55 56 57  See Dickerson v. United Sta tes, 530 U.S. 428 (2000)  Re Oliver , 333 U.S. 257 (1948)  In Re Winship, 397 U.S. 358 (1970) R B G  Procunier v. Martinez , 416 U.S. 396 (1974)  See Banaga v. MaA jaducon, 494 SCRA 153 (2006) vis-à-vis An Library Of Liberties Arsenal Of Arms Securities and Exchange Commission v. GMA Network, Inc., 575 SCRA 113 (2008) R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 12 of 99 the rights to counsel,58 information,59 equal protection,60 need for courts to explicitly state the factual and legal bases for their judgments,61 It has likewise been considered in connection with expropriations.62 In Republic v. Cagandahan, 565 SCRA 72 (2008), the Court recognized the right of a person with the condition of Congenital Adrenal Hyperplasia (CAH), or intersexuality, to have her birth certificate corrected to indicate the gender that such persons may think he or she has, which is different from what was indicated at the moment of birth. It is a recognition of such person’s liberty to choo se what he or she really is. It was noted that the current state of Philippine statutes apparently compels that a person be classified either as a male or as a female, but the Court is not controlled by mere appearances when nature itself fundamentally negates such rigid classification. “Ultimately, we are of the view that where the  person is biologically or naturally intersex the determining factor in his gender classification would be what the individual, like respondent, having reached the age of majority, with good reason thinks of  his/her sex. Respondent here thinks of himself as a male and considering that his body produces high levels of male hormones (androgen) there is preponderant biological support for considering him as being male. Sexual development in cases of intersex persons makes the gender classification at birth inconclusive. It is at maturity that the gender of such persons, like respondent, is fixed.”  Nevertheless, caution should also be had in using it indiscriminately for it could as soon lend itself to noticeable misuse. Depending on how well one may wield the due process argument, he may find an ally or just an illusory companion. In one case, the Supreme Court opened its opinion with this observation: “It has not escaped the attention of the Court that when a party runs out o f arguments, or never had any to begin with, it usually pleads a denial of due process. The plea may impress at first glance, what with all its plaintive invocation of the Bill of Rights, but it does not often succeed upon closer examination.”63 In another case, it concluded with this observation: “The Court is not unaware of the practice of some lawyers who, lacking plausible support for their position, simply claim a denial of due process as if it were a universal absolution. The ground will prove unavailing, and not surprisingly since it is virtually only a  pro forma argument. Due process is not to be bandied like a slogan. It is not a mere catch-phrase. As the highest hallmark of the free society, its name should not be invoked in vain but only when justice has not  been truly served.”64 The Court also observed in another case: “The Court shall not fake naiveté of the  prevalent practice among lawyers who, for lack of better argument to bolster their position, engage in waxing lyrical to ‘a denial of due process.’”65 Finally, the Court has come up with the concept of statutory due process in order to distinguish it 58  E.g., People v. Bermas, 306 SCRA 135 (1999); People v. Santocildes, Jr., 321 SCRA 310 (1999); and, People v. Liwanag , 363 SCRA 62 (2001). In People v. Ferrer , 406 SCRA 658 (200 3), the Court declared: “The right to counsel proceeds from the fundamental  principle of due process which basically means that a person must be hear d before being condemned. The due pr ocess requirement is  part of a person’s basi c rights; it is not a mere formality that may be dispensed with or performed perfunctorily.” 59 JURISTS REVIEW CENTER Tañada v. Tuvera, 136 SCRA 27 (1985) and 146 SCRA 446 (1986) 60  Philippine Judges Association v. Prado, 227 SCRA 703 (1993). ( “The equal protection of the laws is embraced in the concept of due process, as every unfair discrimination offends the requirements of justice and fair play. It has nonetheless been embodied in a separate clause in Article III, Sec. 1, of the Constitution to provide a more specific guaranty against any form of undue favoritism or  AR EVIEW hostility from the government. Arbitrariness in general may be challenged on the basis of the due process clause. But if the particular  act assailed partakes of an unwarranted partiality or prejudice, the sharper weapon to cut it down is the equal protection clause.”) B 61 62 63 64 65 R Yao v. Court of Appeals, 344 SCRA 202 (2000) R Visayan Refining Co. v. Camus, 40 Phil. 550 (1919) 2017 B G  Bautista v. Secretary of Labor and Employment , 196 SCRA 470 (1991)  Pacific Timber Export Corpo ration v. Nationa l Laborvis-à-vis Relations Commission, 224 SCRA (1993) A Library Of Liberties  An Arsenal Of860 Arms  NEECO II v. National Labor Relations Commission, 469 SCRA 169 (2005) R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 13 of 99 from constitutional  due process. In Serrano v. National Labor Relations Commission, 323 SCRA 445 (2000), the Court held that the dismissal of an employee who was separated for cause without affording him the notice required by law was considered ineffectual  until validated by final judgment. In effect, the employee would be deemed still an employee in the meantime, and accordingly entitled to his wages until his dismissal would have been affirmed. The Court majority in that case was also emphatic that such dismissal was not a violation of due process as the guarantee in the Bill of Rights is directed against governmental action, not private acts. Then, in Agabon v. National Labor Relations Commission, 442 SCRA 573 (2004), the Court characterized the dismissal without complying with the notice requirement as a violation of due process. How did it turn around in a manner that is not entirely contrary to what it said four years earlier? Simple. It came up with something new – two concepts of due process: (a) constitutional due process, and, (b) statutory due process. While under the former, its violation would lead to the nullity of the action made, in the latter it would not necessarily be the case, depending on what the statute violated itself provides.66 1. Office of the Court Administrator v. Indar , 669 SCRA 24 (2012) This case is about the administrative investigation of a judge in Cotabato who was involved in coming up with fictitious marriage annulment decisions which were thereafter registered in the Civil Registries of Manila and Quezon City.67 Since the respondent judge had moved to an unknown address, he could not be served with notice and he did not appear in the investigation. Is this fatal to the determination of  the case? No – he was given the opportunity but he tried to evade service. The investigating justice noted that all possible means to locate the respondent judge and to personally serve the court notices to him were resorted to. The Supreme Court also said that the notice of its Resolution preventively suspending the judge was mailed and sent to him at his court. The Court held that “[i]t is settled that ‘technical rules of procedure and evidence are not strictly applied to administrative proceedings. Thus, administrative due process cannot be fully equated with due  process in its strict judicial sense.’ It is enough that the party is given the chance to be heard before the case against him is decided. Otherwise stated, in the application of the principle of due process, what is sought to be safeguarded is not lack of previous notice but the denial of the opportunity to be heard.” Moreover, the constitutional precept that public office is a public trust serves as an underlying principle 66  Note what the Court said in this case, a good window to what it had done recently in changing its mind on its earlier decisions. “This is not to say that the Court was wrong when it ruled the way it did in Wenphil, Serrano and related cases. Social justice is not  based on rigid formulas set i n stone. It has to allow for changing times and circumstances.” 67  To highlight the misconduct of the respondent judge, the Court noted: J R C R 2017 “In this case, Judge Indar issued decisions on numerous annulment ofENTER marriage cases which do not exist in the records of  URISTS EVIEW RTC-ShariffAguak, Branch 15 or the Office of the Clerk of Court of the Regional Trial Court, Cotabato City. There is nothing to show that (1) pr oceedings were had on the questioned cases; (2) docket fees had been paid; (3) the part ies were notified of a scheduled hearing as calendared; (4) hearings had been conducted; or (5) the cases were submitted for decision. As found by the Audit Team, the list of  AR andEVIEW case titles submitted by the Local Civil Registrars of Manila Quezon City are not found in the lis t of cases filed, pending or decided in RTC, Branch 15, Sh ariffAguak, nor in the r ecords of the Office of the Clerk of Court of the Regional Trial Court, Cotabato City. In other words, Jud ge Indar, who had sworn to faithfully uphold the law, issued decisions on the questioned annulment of marriage cases, without any showing that such cases underwent trial and complied with the statutory and jurisprud ential requisites for voiding marriages. Such act undoubtedly constitutes gross misconduct. B R B ***** G “In this case, Judge Indar issued Decisions on numerous annulment of marriage cases when in fact he did not conduct any judicial A Library Of Liberties vis-à-vis An Arsenal Of Arms  proceedings on the cases. Not even the filing of the peti tions occurred. . . .” R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 14 of 99 for the for the relaxation of the requirements of due process of law in administrative proceedings. The Court likewise noted: “In this case, Judge Indar was given ample opportunity to controvert the charges against him. While there is no proof that Judge Indar personally received the notices of hearing issued by the Investigating Justices, the first two notices of hearing were received by one Mustapha Randang of the Clerk of Court, RTC-Cotabato, while one of the notices was received by a certain Mrs. Asok, who were presumably authorized and capable to receive notices on behalf of Judge Indar. Further, Judge Indar cannot feign ignorance of the administrative investigation against him because aside from the fact that the Court’s Resolution suspending him was mailed to him, his preventive suspension was reported in major national newspapers. Moreover, Judge Indar was repeatedly sent notices of hearings to his known addresses. Thus, there was due notice on Judge Indar of the charges against him.” 2.  Perla v. Baring , 685 SCRA 101 (2012) When it comes to complaint for support based on a child’s alleged filiation to a particular man, the Court said that the alleged filiation must be established with sufficient certainty. “Time and again, this Court has ruled that a high standard of proof is required to establish paternity and filiation. An order for  x x x support may create an unwholesome situation or may be an irritant to the family or the lives of the  parties so that it must be issued only if paternity or filiation is established by clear and convincing evidence.” 3.  Republic v. Albios, 707 SCRA 584 (2013) If a marriage of convenience – e.g., for the acquisition of foreign citizenship – does not work out as  planned, could that be a ground for declaration of nullity? No, the Court ruled in this case. “Motives for  entering into a marriage are varied and complex. The State does not and cannot dictate on the kind of  life that a couple chooses to lead. Any attempt to regulate their lifestyle would go into the realm of their  right to privacy and would raise serious constitutional questions. The right to marital privacy allows married couples to structure their marriages in almost any way they see fit, to live together or live apart, to have children or no children, to love one another or not, and so on. Thus, marriages entered into for  other purposes, limited or otherwise, such as convenience, companionship, money, status, and title,  provided that they comply with all the legal requisites, are equally valid.” Thus, although the marriage may be considered a sham or fraudulent for the purposes of immigration, it is not void ab initio and continues to be valid and subsisting.68 68  See Leus v. St. Scholastica’s College Westgrove, 748 SCRA 378 (2015), and, Capin-Cadiz v. Brent Hospital and Colleges, Inc. , 785 SCRA 18 (2016) , where the Court held invalid the sanctions – dismissal in Leus and indefinite suspension in Capin-Cadiz  – imposed on female employees in religious institut ions simply on the ground th at they got pregnant outside of marriage even as there was no legal impediment to them getting married. In Leus, the Court said that the fact of the petitioner’s pregnancy out of wedlock, without more, is not enough to characterize her conduct as disgraceful or immoral. “There must be substantial evidence to establish that pre-marital URISTS EVIEW ENTER sexual relations and , consequently, pregnancy out of wedlock, are indeed considered disgraceful or immoral.” Further, the Court hel d: “That the petitioner was employed by a Catholic educational institution per se does not absolutely determine whether her pregnan cy out of wedlock is disgraceful or immoral. There is still a necessity to determine whether the petitioner’s pregnancy out of wedlock is EVIEW considered disgraceful or immoral in accordance withAR the prevailing norms of conduct.” And, for that, secular , not religious, morality is to be the basis. J B R C R 2017 Capin-Cadiz  echoed the Court’s holding in Leus, stating, inter alia: “Jurisprudence has already set the standard of morality with which an act should be gauged – it is public and secular, not religious. Whether a conduct is considered disgraceful or immoral should  be made i n accordance with the prevailing norms of conduct, wh ich, as st ated in  Leus, refer to those conducts which are proscribed  because t hey are detrimental to conditions upon which depend the existence and progress of human society. The fact that a  particular act does not conform to the traditional moral views of a certain sectarian inst itution is not sufficient reason to qualify such vis-à-vis Library Ofconfonn Liberties Arsenal Of Arms act as immoral unless it, A likewise, does not to public and secular An standards. More importantly, there must be substantial evidence to establish that premarital sexual relations and pr egnancy out of wedlock is considered disgraceful or immoral.” And, in regard R B G R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 15 of 99 4. Obergefell v. Hodges , 576 U.S. ___ (No. 14-556, 26 June 2015) Marriage is traditionally understood as a union between a man and a woman. Do persons of the same sex have the right to demand that their similar arrangement be recognized and legitimized by the government? In this case, the U.S. Supreme Court said yes. It is part of the protected liberty interests of  individuals, a means by which they define and express their identity. The Court also noted that the institution of marriage has evolved over time. “Indeed, changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations, often through perspectives that begin in pleas or protests and then are considered in the political sphere and the judicial process. This dynamic can be seen in the Nation’s experiences with the rights of gays and lesbians. Until the mid-20th century, same-sex intimacy long had been condemned as immoral by the state itself in most Western nations, a belief often embodied in the criminal law. For this reason, among others, many persons did not deem homosexuals to have dignity in their own distinct identity. A truthful declaration by same-sex couples of what was in their hearts had to remain unspoken. . . Only in more recent years have psychiatrists and others recognized that sexual orientation is both a normal expression of human sexuality and immutable.” The Court further held that “[u]nder the Due Process Clause of the Fourteenth Amendment, no State shall ‘deprive any person of life, liberty, or property, without due process of law.’ The fundamental liberties protected by this Clause include most of the rights enumerated in the Bill of Rights. . . . In addition these liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs. . . . The identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution. That responsibility, however, ‘has not been reduced to any formula.’ . . . Rather, it requires courts to exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect.” And, to highlight the flexibility of ideas and legal principles, the Court said: “It cannot be denied that this Court’s cases describing the right to marry presumed a relationship involving oppositesex partners. The Court, like many institutions, has made assumptions defined by the world and time of  which it is a part.” For its analysis, the Court made reference to the four principles and traditions regarding marriage that to the right of women to choose whether to get married or not, the Court said: “With particular regard to women, Republic Act No. 9710 or the Magna Carta of Women protects women against discrimination in all matters relating to marriage and family relations, including the right to choose freely a spouse and to enter into marriage only with their free and full consent.   Weighed against these safeguards, it becomes apparent that Brent’s condition is coercive, oppressive and discriminatory. There is no rhyme or reason for it. It forces Cadiz to marry for economic reasons and deprives her of the freedom to choose her status, which is a privilege that inheres in her as an intangible and inalienable right.” J R C R 2017  Noteworthy also in Capin-Cadiz is the concurring opinion of Justice Jardeleza where he pointed out, among others: “While the URISTS EVIEW ENTER  ponencia views the issue from the perspective of public and secular morality, there is also a constitutional dimension to this case that should be considered. This is a woman’s right to personal autonomy as a fundamental right. The Constitution protects per sonal autonomy as part of the Due Process Clause in the Bill of Rights. Indeed, the Bill of Rights cannot be invoked against pri vate employers. However, the values expressed in the Constitu tion cannot be completely in the just adjudication of labor cases. In this case, Brent’s reliance AR ignored EVIEW on laws and governmental issuances justifies the view that the Constitution should permeate a proper adjudication of the issue. Brent invokes the MRPS to support Christine Joy’s dismissal. The MRPS is a department order issued by the Department of Education (DepEd) in the exercise of its power to regulate private schools. . . . Hence, in the application of laws and governmental regulations, their provisions should not be interpreted in a manner that will violate the fundamental law of the land.” In short, petitioner’s decision “to continue with her pr egnancy outside of wedlock is a constitutionally protected right.” On si ngle motherhood, he said: “While marriage is the ideal starting point of a family, there is no constitutional or statutory provision limiting the definition of a family or preventing any attempt to deviate from our traditional template of what a family should be. In other jurisdictions, t here is a growing clamor for laws vis-à-vis Library  An Arsenal Of Arms to be readjusted t o suit theA needs of a risin gOf classLiberties of women – single mothers by choice.” In other words, the petitioner “and other women similarly situated are free to be single mothers by choice.” B R B G R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 16 of 99 impelled it to now accord the same-sex marriages the legitimacy sought. “And in assessing whether the force and rationale of its cases apply to same-sex couples, the Court must respect the basic reasons why the right to marry has been long protected. This analysis com pels the conclusion that same-sex couples may exercise the right to marry. The four principles and traditions to be discussed demonstrate that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples.” It went to hold that “[a] first premise of the Court’s relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy.” Further, “[a] second principle in this Court’s jurisprudence is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.” And, “[a] third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of  childrearing, procreation, and education.” Ultimately, “[f]ourth and finally, this Court’s cases and the  Nation’s traditions make clear that marriage is a keystone of our social order.” Accordingly, “[t]he limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest. With that knowledge must come the recognition that laws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our basic charter.” The Court further declared: “The right to marry is fundamental as a matter of history and tradition,  but rights come not from ancient sources alone. They rise, too, from a better informed understanding of  how constitutional imperatives define a liberty that remains urgent in our own era. Many who deem samesex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical  premises, and neither they nor their beliefs are disparaged here. But when that sincere, personal opposition becomes en- acted law and public policy, the necessary consequence is to put the imprimatur  of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied. Under the Constitution, same-sex couples seek in marriage the same legal treatment as oppositesex couples, and it would disparage their choices and diminish their personhood to deny them this right. The right of same-sex couples to marry that is part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment’s guarantee of the equal protection of the laws. The Due Process Clause and the Equal Protection Clause are connected in a profound way, though they set forth independent principles. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always coextensive, yet in some instances each may be instructive as to the meaning and reach of the other. In any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way,even as the two Clauses may converge in the identification and definition of the right.” The Court then held: “These considerations lead to the conclusion that the right to marry is a fundamental right inherent in the liberty of theR person, andCunder the Due Process and Equal Protection JURISTS EVIEW ENTER Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. The Court now holds that same-sex couples may exercise the fundamental right to marry.” BAR ,R693 EVIEW 2017 5.  Maliksi v. Commission on Elections SCRA 214 and 696 SCRA 272 (2013) Procedural irregularities violate a party’s entitlement to due process of law, thereby resulting in an invalid judgment. This is about an election contest involving the position of municipal mayor. In the automated elections in 2010, Saquilayan emerged winner. Maliksi filed an election protest before the Regional Trial Court which resulted in a judgment in his favor. Saquilayan brought up the matter to the vis-à-vis A Library  An Of Arms Commission on Elections and Of the Liberties results were reversed. In Arsenal so deciding, the First Division of the R B G R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 17 of 99 Commission, without giving notice to the parties, decided to recount the ballots through the use of the  printouts of the ballot images from the CF cards. In its original decision, the Court, by a 8-7 vote, said that there was no denial of due process since Maliksi was fullyaware of the decryption, printing and use of the ballot images for the purpose of determining the true will of the electorate. Maliksi filed an  Extremely Urgent Motion for Reconsideration and the Court obliged him – also by an 8-7 vote, but this time the majority had shifted to the other side! In reversing the original disposition, the new majority said that “the First Division of the COMELEC denied to him the right to due process by failing to give due notice on the decryption and printing of the  ballot images.” The Court then annulled the recount proceedings conducted by the First Division with the use of the printouts of the ballot images. The Court explained that “the First Division should not have conducted the assailed recount proceedings because it was then exercising appellate jurisdiction as to which no existing rule of procedure allowed it to conduct a recount in the first instance. The recount  proceedings authorized under Section 6, Rule 15 of COMELEC Resolution No. 8804, as amended, are to be conducted by the COMELEC Divisions only in the exercise of their exclusive original jurisdiction over all election protests involving elective regional (the autonomous regions), provincial and city officials.” As the Court saw it, “the First Division arbitrarily arrogated unto itself the conduct of the recount proceedings, contrary to the regular procedure of remanding the protest to the RTC and directing the reconstitution of the Revision Committee for the decryption and printing of the picture images and the revision of the ballots on the basis thereof. Quite unexpectedly, the COMELEC En Banc upheld the First Division’s unwarranted deviation from the standard procedures by invoking the COMELEC’s power  to ‘take such measures as [the Presiding Commissioner] may deem proper,’ . . .” But, the Court said, “the  power of the COMELEC to adopt procedures that will ensure the speedy resolution of its cases should still be exercised only after giving to all the parties the opportunity to be heard on their opposing claims. The parties’ right to be heard upon adversarial issues and matters is never to be waived or sacrificed, or  to be treated so lightly because of the possibility of the substantial prejudice to be thereby caused to the  parties, or to any of them.” After noting that the official ballot and its picture image are considered “original documents” – both of them are given equal probative weight, that when either is presented as evidence, one is not considered as weightier than the other – the Court proceeded to qualify: “But this juridical reality does not authorize the courts, the COMELEC, and the Electoral Tribunals to quickly and unilaterally resort to the printouts of the picture images of the ballots in the proceedings had before them without notice to the parties. Despite the equal probative weight accorded to the official ballots and the printouts of their picture images, the rules for the revision of ballots adopted for their respective proceedings still consider the official ballots to be the primary or best evidence of the voters’ will. In that regard, the J picture images of the ballots are to be used only when it is first REVIEW CENTER URISTS shown that the official ballots are lost or their integrity has been compromised. ” Further, “[t]he disregard of Maliksi’s right to be informed of the decision to print the picture images Bproceedings AR REVIEW 2017 of the ballots and to conduct the recount during the appellate stage cannot be brushed aside  by the invocation of the fact that Maliksi was able to file, after all, a motion for reconsideration. To be exact, the motion for reconsideration was actually directed against the entire resolution of the First Division, while Maliksi’s claim of due process violation is directed only against the First Division’s recount proceedings that resulted in the prejudicial result rendered against him. Notably, the First Division did not issue any order directing the recount. Without the written order, Maliksi was deprived of the A Library Of Liberties vis-à-vis An Arsenal Of Arms chance to seek any reconsideration or even to assail the irregularly-held recount through a seasonable R B G R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 18 of 99  petition for certiorari in this Court. In that context, he had no real opportunity to assail the conduct of  the recount proceedings. The service of the First Division orders requiring Saquilayan to post and augment the cash deposits for the printing of the picture images did not sufficiently give Maliksi notice of the First Division’s decision to print the picture images. The said orders did not meet the requirements of due process because they did not specifically inform Maliksi that the ballots had been found to be tampered. Nor did the orders offer the factual bases for the finding of tampering. Hence, to leave for  Maliksi to surmise on the factual bases for finding the need to print the picture images still violated the  principles of fair play, because the responsibility and the obligation to lay down the factual bases and to inform Maliksi as the party to be potentially prejudiced thereby firmly rested on the shoulders of the First Division. Moreover, due process of law does not only require notice of the decryption, printing, and recount proceedings to the parties, but also demands an opportunity to be present at such proceedings or to be represented therein.” 6. Cudia v. Superintendent of the Philippine Military Academy , 751 SCRA 469 (2015) In regard to administrative investigations involving students in military schools, the Court held: “Like in other institutions of higher learning, there is aversion to wards undue judicialization of an administrative hearing in the military academy. It has been said that the mission of the military is unique in the sense that its primary business is to fight or be ready to fight wars should the occasion arise, and that over-proceduralizing military determinations necessarily gives soldiers less time to accomplish this task. Extensive cadet investigations and complex due process hearing could sacrifice simplicity, practicality, and timeliness. . . . Excessive delays cannot be tolerated since it is unfair to the accused, to his or her  fellow cadets, to the Academy, and, generally, to the Armed Forces. A good balance should, therefore,  be struck to achieve fairness, thoroughness, and efficiency.” 7. Office of the Ombudsman v. Quimbo , 751 SCRA 632 (2015) In Office of the Ombudsman v. Sison, 612 SCRA 702 (2010), the Court held that the Office of the Ombudsman could not and should not intervene in the appeal from its decision, specially if it is reversed. It should remain detached, in keeping with its role as adjudicator, not an advocate. InQuimbo, however, the Court held otherwise. It said: “The issue of whether or not the Ombudsman possesses the requisite legal interest to intervene in the proceedings where its decision is at risk of being inappropriately impaired has been laid to rest in Ombudsman v. De Chavez  [700 SCRA 399 (2013), at 404-406]. In the said case, the Court conclusively ruled that even if the Ombudsman was not impleaded as a party in the  proceedings, part of its broad powers include defending its decisions before the CA. And pursuant to Section 1 of Rule 19 of the Rules of Court, the Ombudsman may validly intervene in the said proceedings as its legal interest on the matter is beyond cavil.” The Court declared that the Court of Appeals gravely erred in disallowing the Ombudsman’s motion to intervene – it failed to consider the essence of the JURISTS REVIEW CENTER Ombudsman’s constitutionally and statutorily conferred powers establishing its clear legal interest in ensuring that its directive be implemented. BAR REVIEW 2017 8. Ylaya v. Gacott , 689 SCRA 452 (2013) In view of the fact that disciplinary proceedings against lawyers are sui generis – they are neither   purely civil nor purely criminal – and that they involve investigations by the Court into the conduct of one of its officers, not the trial of an action or a suit, it is not mandatory to have a formal hearing in which the complainant must adduce evidence. The complainant is not indispensable to the proceedings and her  vis-à-vis Library Of Liberties  An Arsenal Of Arms failure to appear forAcross-examination or to provide corroborative evidence is of not that relevant. R B G R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 19 of 99 D. EQUAL PROTECTION The guarantee of equal protection is no argument for absolute equality, for what it only assures is legal equality. It would hardly be fair nor just that people whoare not equally circumstanced be given the same treatment, otherwise, it would be as offensive to the notion as the very idea of unequal treatment among equals. Inherent therefore in the application of the Equal Protection Clause is the need for valid classifications  so as to determine who or what could properly be grouped together for particular  treatment, and excluding all others. As the Court intoned in Mirasol v. Department of Public Works and   Highways, 490 SCRA 318 (2006), “[t]o begin with, classification by itself is not prohibited,” and then went on to state that “[n]ot all motorized vehicles are created equal.” In this regard, the classification must be related to the very purpose of the law and that there should be substantial distinctions which make for real differences. Gender may be relevant in regard to certain classifications but not in others. Age, legitimacy, academic performance, courses of study, office and status, and other bases for  classification may make for some valid differences at times, but not so under other situations and climes, and so on. And, what may be constitutional when seen from one perspective may not be so from another  vantage point.69 As for you taking the Bar exams, consider yourself not just anyone. While you are like your fellow examinees with the same ambition and aim of becoming lawyers, you are still different from everyone else. And if you’re good enough, you may even end up as a class by yourself.70 1. Garcia v. Drilon, 699 SCRA 352 (2013) Republic Act No. 9262 (2004), entitled “An Act Defining Violence Against Women and Their  Children, Providing for Protective Measures for Victims, Prescribing Penalties Therefor, and for Other  Purposes,” is assailed for being allegedly violative of the guaranty of equal protection in the sense that it does not similarly protect men who are victim of the same acts which are criminalized by the law. Since R.A. 9262 is intended to prevent and criminalize spousal and child abuse, which could very well be committed by either the husband or the wife, petitioner posits, gender alone should not be enough basis to deprive the husband/father of the remedies under the law. The Court said the equal protection clause is not violated since there is a valid basis for classification. There is a substantial distinction between men and women in this particular area. “The unequal power  relationship between women and men; the fact that women are more likely than men to be victims of  violence; and the widespread gender bias and prejudice against women all make for real differences  justifying the classification under the law. As Justice McIntyre succinctly states, ‘the accommodation of  differences ... is the essence of true equality.’” The Court noted that “[a]ccording to the Philippine JURISTS REVIEW CENTER Commission on Women (the National Machinery for Gender Equality and Women’s Empowerment), violence against women (VAW) is deemed to be closely linked with the unequal power relationship between women and men otherwise known as “gender-based violence”. Societal norms and traditions BARpursuers, REVIEW 2017 and take on dominant roles in society dictate people to think men are the leaders, providers, while women are nurturers, men’s companions and supporters, and take on subordinate roles in society. 69 70 R B G  See Central Bank Employees Association, Inc. v. Bangko Sentral ng Pilipinas, 446 SCRA 299 (2004)  See Village of Willowbrook v. Olech , 528 U.S. 562 (2000) (The Equal Protection Clause gives rise to a cause of action on behalf  of a “class of one” where the plaintiff does not allege membership in a class or group, b ut alleges that she has been intentionally treated differently from others similarly situated and there is no rational basis  An for such treatment.)Of Arms vis-à-vis A Library Of that Liberties Arsenal See also Nixon v. Administra tor of General Services, 433 U.S. 425 (1977). R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 20 of 99 This perception leads to men gaining more power over women. With power comes the need to control to retain that power. And VAW is a form of men’s expression of controlling women to retain power.” Furthermore, women are the “usual” and “most likely” victims of violence. “On the other hand, no reliable estimates may be obtained on domestic abuse and violence against men in the Philippines because incidents thereof are relatively low and, perhaps, because many men will not even attempt to report the situation.” And, the Court further noted: “While there are, indeed, relatively few cases of violence and abuse perpetrated against men in the Philippines, the same cannot render R.A. 9262 invalid.” Moreover, “[t]he mere fact that the legislative classification may result in actual inequality is not violative of the right to equal protection, for every classification of persons or things for regulation by law produces inequality in some degree, but the law is not thereby rendered invalid.” As for gender biases and prejudices, the Court observed that “[f]rom the initial report to the police through prosecution, trial, and sentencing, crimes against women are often treated differently and less seriously than other crimes.” Then, it added its own judicialmea culpa – “Sadly, our own courts, as well, have exhibited prejudices and biases against our women.” Thus, “[t]he enactment of R.A. 9262 aims to address the discrimination brought about by biases and prejudices against women. As emphasized by the CEDAW [Convention on the Elimination of all Forms of Discrimination Against Women] Committee on the Elimination of Discrimination against Women, addressing or correcting discrimination through specific measures focused on women does not discriminate against men. Petitioner’s contention, therefore, that R.A. 9262 is discriminatory and that it is an “anti-male,” “husband-bashing,” and “hatemen” law deserves scant consideration. The Court also pointed out that the “distinction between men and women is germane to the purpose of R.A. 9262, which is to address violence committed against women and children, . . .” At the same time, “the application of R.A. 9262 is not limited to the existing conditions when it was promulgated, but to future conditions as well, for as long as the safety and security of women and their children are threatened by violence and abuse. R.A. 9262 applies equally to all women and children who suffer  violence and abuse.” Finally, the Court dismissed the contention that R.A. 9262 singles out the husband or father as the culprit. “As defined above, VAWC may likewise be committed ‘against a woman with whom the person has or had a sexual or dating relationship.’ Clearly, the use of the gender-neutral word ‘person’ who has or had a sexual or dating relationship with the woman encompasses even lesbian relationships.” 2.  Almario v. Executive Secretary , 701 SCRA 269 (2013) Here, the Court ruled that there was a violation of the equal protection clause when former President Arroyo gave preferential treatment to certain persons relative to the national artist awards in disregard URISTS REVIEW CENTER of the rules, guidelines and policiesJof the National Commission for Culture and the Arts and the Cultural Center of the Philippines as to the selection of the nominees for conferment of the Order of National Artists. Such guidelines and policies proscribed her from having a free and uninhibited hand in the BARdisregard REVIEW 2017 conferment of the said award. The manifest of the rules, guidelines and processes of the NCCA and the CCP was an arbitrary act which unduly favored certain nominees, and that the conferment of the Order of National Artists on them was therefore made with grave abuse of discretion. R B G 3.  Serrano v. Gallant Maritime Services, Inc. , 582 SCRA 254 (2009) At issue here is the constitutionality of the vis-à-vis of the 5 th  paragraph of §10 R.A. No. 8042 A Library Of Liberties last clause An Arsenal Of Arms (Migrant Workers and Overseas Filipinos Act of 1995). The 5th  paragraph provides: “In case of  R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 21 of 99 termination of overseas employment without just, valid or authorized cause as defined by law or contract, the workers shall be entitled to the full reimbursement of his placement fee with interest o f twelve percent (12%) per annum, plus his salaries for the unexpired portion of his employment contract or for three (3) months for every year of the unexpired term, whichever is less. ” Does this violate the guarantee of  equal protection among OFWs? Yes. The Court noted that “[t]he enactment of the subject clause in R.A. No. 8042 introduced a differentiated rule of computation of the money claims of illegally dismissed OFWs based on their  employment periods, in the process singling out  one category whose contracts have an unexpired portion of one year or more and subjecting them to the peculiar disadvantage of having their monetary awards limited to their salaries for 3 months or for the unexpired portion thereof, whichever is less, but all the while sparing the other category from such prejudice, simply because the latter’s unexpired contracts fall short of one year.” The Court further observed that “the subject clause creates a sub-layer of  discrimination among OFWs whose contract periods are for more than one year: those who are illegally dismissed with less than one year left in their contracts shall be entitled to their salaries for the entire unexpired portion thereof, while those who are illegally dismissed with one year or more remaining in their contracts shall be covered by the subject clause, and their monetary benefits limited to their salaries for three months only.”71 4.  Mosqueda v. Pilipino Banana Growers & Export Association, Inc ., – SCRA – (G.R. Nos. 189185 and 189305, 16 August 2016) In regard to the ban imposed by the City of Davao on aerial spraying as an agricultural practice, which the Court held to be invalid for being unreasonable as well as being violative of the Equal Protection Clause, the Court also discussed some significant concepts such as levels of scrutiny and overinclusiveness and underinclusiveness. “The reasonability of a distinction and sufficiency of the justification given by the Government for its conduct is gauged by using the means-end test . This test requires analysis of: (1) the interests of the  public that generally require its exercise, as distinguished from those of a particular class; and (2) the means employed that are reasonably necessary for the accomplishment of the purpose and are not unduly oppressive upon individuals. To determine the propriety of the classification, courts resort to three levels of scrutiny, viz: the rational scrutiny, intermediate scrutiny  and  strict scrutiny. The rational basis  scrutiny (also known as the rational relation test or rational basis test) demands that the classification reasonably relate to the legislative purpose. The rational basis test often applies in cases involving 71  Congress seems to have wittingly or unwittingly defied the Supreme Court in enacting R.A. No. 10222 (approved on 8 March 2010). Section 7 of the new law, amended §10, ¶5 of R.A. 8042, by writing the same language invalidated in Serrano, viz : “In case of  termination of overseas employment without just, valid or authorized cause as defined by law or contract, or any unauthorized deductions URISTS EVIEW ENTER from the migrant worker's salary, the worker shall be entitled to the full reimbursement if his placement fee and the deductions made with interest a t twelve percent (12%) p er annum, plus his salaries for t he unexpired portion of his employment contract or for three (3) months for every year of the unexpired term, whichever is less.” J R C BAR REVIEW 2017 Serrano was given a retroactive effect in other cases, like Pert/CPM Manpower Exponent Co., Inc. v. Vinuya, 680 SCRA 284 (2012)  – applying retr oactively Serrano but not R.A. 10022. The Court chose not to touch the issue of constitution ality of the amendment  brought about by R.A. No. 10222, the Court saying, “[w]hether or not R.A. 10022 is constitutional is not for us to rule upon in the present case as this is an issue that is not squarely before us. In other words, this is an issue that awaits its proper day in court; in the meanwhile, we make no pronouncement on it.” Subsequently, however, in Sameer Overseas Placement Agency, Inc. v. Cabiles , 732 SCRA 22 (2014), the Court took the bull by its horns:  “When a law is passed, this court awaits an actual case that clearly raises adversarial  positions in their proper context before considering a prayer to declare it as unconstitutional. However, we are confronted with a unique Library  An Arsenal Of Arms situation. The law passed A incorporates theOf exactLiberties clause alreadyvis-à-vis declared as unconstitutional, without any perceived substantial change in the circumstances.” The Court went on to declare the amendment invalid. R B G R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 22 of 99 economics or social welfare, or to any other case not involving a suspect class. When the classification  puts a quasi-suspect class at a disadvantage, it will be treated under intermediate or heightened review. Classifications based on gender or illegitimacy receives intermediate scrutiny. To survive intermediate scrutiny, the law must not only further an important governmental interest and be substantially related to that interest, but the justification for the classification must be genuine and must not depend on broad generalizations. The strict scrutiny review applies when a legislative classification impermissibly interferes with the exercise of a fundamental right or operates to the peculiar class disadvantage of a suspect class. The Government carries the burden to prove that the classification is necessary to achieve a compelling state interest, and that it is the least restrictive means to protect such interest.” As to whether a measure is too narrow, or too broad, the Court had t his to say: “The occurrence of   pesticide drift is not limited to aerial spraying but results from the conduct of any mode of pesticide application. Even manual spraying or truck-mounted boom spraying produces drift that may bring about the same inconvenience, discomfort and alleged health risks to the community and to the environment. A ban against aerial spraying does not weed out the harm that the ordinance seeks to achieve. In the  process, the ordinance suffers from being ‘underinclusive’ because the classification does not include all individuals tainted with the same mischief that the law seeks to eliminate. A classification that is drastically underinclusive with respect to the purpose or end appears as an irrational means to the legislative end because it poorly serves the intended purpose of the law.” Further, “[a]side from its being underinclusive, the assailed ordinance also tend to be ‘overinclusive’ because its impending implementation will affect groups that have no relation to the accomplishment of the legislative purpose. Its implementation will unnecessarily impose a burden on a wider range of individuals than those included in the intended class based on the purpose of the law. It can be noted that the imposition of the ban is too  broad because the ordinance applies irrespective of the substance to be aerially applied and irrespective of the agricultural activity to be conducted. . . . The imposition of the ban against aerial spraying of  substances other than fungicides and regardless of the agricultural activity being performed becomes unreasonable inasmuch as it patently bears no relation to the purported inconvenience, discomfort, health risk and environmental danger which the ordinance seeks to address.” E. SEARCHES AND SEIZURES A citizen in a democratic and republican state, where sovereignty resides in the people and all government authority emanates from them, may consider it his birthright to be free from unwarranted and unreasonable intrusions into his life. He would not want to have a Big Brother looking over his shoulders and minding his affairs. The guarantee against unreasonable searches and seizures upholds that JURISTS REVIEW CENTER expectation of privacy. And, for starters, it requires that before any searches or seizures be had, the same must be, as a general rule, accompanied by a warrant, issued by one who is disinterested and detached from the task of law enforcement. But even in the issuance of such warrants by a judge, the magistrate 2017 grounds. He must have probable cause AR R is not that free to simply issue it for no B reason atEVIEW all or on flimsy for the same, which he must determine personally by carefully examining the complainant, his witnesses and other supporting documents. Further, reasonableness also goes to the manner of serving and executing it. Accordingly, not because one is armed with a warrant that he would now have the perfect right to simply barge into houses or dwellings like the gestapo. He must abide by the “knock and announce” procedure.72 As much as possible, he must still do it in a civilized manner, unless his life or  R 72 A Library Of Liberties  See People v. Go, 411 SCRA 81 (2003) B G vis-à-vis An Arsenal Of Arms R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 23 of 99 safety may be in danger, or the evidence would likely be destroyed by any delay. The requirement of a search warrant being a general rule, it necessarily follows that some exceptions would have to be accommodated, exceptions which are better understood when seen in the context in which they developed, such as search incident to a lawful arrest, search of moving vehicles, the plain view doctrine, and, lately, airport searches. In regard to warrantless arrests, there are the in flagrante delicto, “hot pursuit” and escaped-prisoners exceptions. Here, whether in cases of in flagrante delicto or hot   pursuit , “[i]n both instances, the officer’s personal knowledge of the fact of the commission of an offense is absolutely required. Under paragraph (a), the officer himself witnesses the crime while under   paragraph (b), he knows for a fact that a crime has just been committed.”73 As for hot pursuit, the Court has pointed out that “[f]rom the current phraseology of the rules on warrantless arrest, it appears that for   purposes of Section 5(b), the following are the notable changes: first, the contemplated offense was qualified by the word ‘just,’ connoting immediacy; and second, the warrantless arrest of a person sought to be arrested should be based on probable cause to be determined by the arresting officer based on his  personal knowledge of facts and circumstances that the person to be arrested has committed it.”74 In considering the things and circumstances relative to the question of whether a search or seizure was in accordance with the Constitution, one must always remember that the touchstone is reasonableness.75 And that is not something cast in rigid and inflexible forms and shapes. “[T]he Fourth Amendment76 does not insist upon bright-line rules. Rather, it recognizes that no single set of legal rules can capture the ever changing complexity of human life.”77 It has also been stated that a search warrant proceeding is, in no sense, a criminal action or the commencement of a prosecution. The proceeding is not one against any person, but is solely for the discovery and to get po ssession of personal property. It is a special and peculiar remedy, drastic in nature, and made necessary because of public necessity. It resembles in some respect what is commonly known as John Doe proceedings. Further, private complainants can participate in these proceedings – they may appear, participate and file pleadings to maintain, inter alia, the validity of the search warrant issued by the court and the admissibility of the properties seized in anticipation of a criminal case to be filed. As for the search warrant itself, the Court said that it is a legal process which has been likened to a writ of  discovery employed by the State to procure relevant evidence of crime. It is in the nature of a criminal  process, restricted to cases of public prosecutions. A search warrant is a police weapon, issued under the  police power.78 In regard to anticipatory warrants – where they are applied for even before the contraband is yet to  be delivered to the place to be searched – the U.S. Supreme Court declared inUnited States v. Grubbs, 547 U.S. 90 (2006): “Because the probable-cause requirement looks to whether evidence will be found when the search is conducted , all J warrants are, a sense,C‘anticipatory.’ In the typical case where the Rin URISTS EVIEW ENTER  police seek permission to search a house for an item they believe is already located there, the magistrate’s determination that there is probable cause for the search amounts to a prediction that the item will still 73 74 75 BAR REVIEW 2017  People v. Villareal , 693 SCRA 549 (2013)  Pestilos v. Generoso, 739 SCRA 337 (2014) R B G  “[B]ecause the ultimate touchstone of the Fourth Amendment is ‘reasonableness,’ the warrant requirement is subject to certain exceptions.” ( Brigham City v. S tuart , 547 U.S. 398 [2006]) 76 77 78  This is the American counterpart to Art. III, §2 of the Philippine Constitution.  Justice Breyer, concurring in Georgia Randolph, 547 U.S. 103 (2006) vis-à-vis A Library Of v.Liberties  An United Laboratories, Inc. v. Isip, 461 SCRA 574 (2005) Arsenal Of Arms R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 24 of 99  be there when the warrant is executed.” In that sense, anticipatory warrants are no different in principle from ordinary warrants. They also require the magistrate to determine (1) that it is now probable that (2) contraband, evidence of a crime, or a fugitive will be on the described premises (3) when the warrant is executed. “In other words, for a conditioned anticipatory warrant to comply with the Fourth Amendment’s requirement of probable cause, two prerequisites of probability must be satisfied. It must  be true not only that if   the triggering condition occurs ‘there is a fair probability that contraband or  evidence of a crime will be found in a particular place,’ . . . but also t hat there is probable cause to believe the triggering condition will occur .” With regard to warrantless searches, specially of moving vehicles (and their use for smuggling), the following passage from People v. Lo Ho Wing , 193 SCRA 122 (1991),79 edifies: “[T]he rules governing search and seizure have over the years been steadily liberalized whenever a moving vehicle is the object of the search on the basis of practicality. This is so considering that before a warrant could be obtained, the place, things and persons to be searched must be described to the satisfaction of the issuing judge –  a requirement which borders on the impossible in the case of smuggling effected by the use of a moving vehicle that can transport contraband from one place to another with impunity.” Nevertheless, there must still be probable cause to justify such warrantless search of a vehicle. Directly related to the right against unreasonable searches and seizures is the right to privacy. In this regard, the Court said in Sabio v. Gordon, 504 SCRA 704 (2006): “Zones of privacy are recognized and  protected in our laws. Within these zones, any form of intrusion is impermissible unless excused by law and in accordance with customary legal process. The meticulous regard we accord to these zones arises not only from our conviction that the right to privacy is a ‘constitutional right ’ and ‘the right most valued  by civilized men,’ but also from our adherence to the Universal Declaration of Human Rights which mandates that, ‘no one shall be subjected to arbitrary interference with his privacy’ and ‘everyone has the right to the protection of the law against such interference or attacks.’” 1.  Laud v. People, 741 SCRA 239 (2014) Are “human remains” personal property which could be the subject of a search warrant? Yes, the Court said. In a case involving alleged summary executions of six victims by the Davao Death Squad , the RTC issued a warrant for the search of the remains in three caves in Davao. The warrant was sought to be quashed, among other grounds, on the claim that human remains are not personal property. The Court said that “personal property” in the context of §3, Rule 126 of the Rules of Court refers to the thing’s mobility, and not to its capacity to be owned or alienated  by a particular person. Human remains can be transported from place to place, and they qualify under the phrase “subject of the offense”given that they prove the crime’s corpus delicti. Accordingly, they may be valid subjects of a search warrant. JURISTS REVIEW CENTER 2.  People v. Cogaed , 731 SCRA 427 (2014) On silence or lack of protest as a possible manifestation of consent or waiver, the Court gave these BAR REVIEW 2017 guidelines. “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.” And, in a warning akin to Miranda waiver, the Court said: “For a valid waiver by the accused R 79 A Library Of Liberties  Cited in People v. Tuazon, 532 SCRA 152 (2007) B G vis-à-vis An Arsenal Of Arms R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 25 of 99 of his or her constitutional right, it is not sufficient that the police officer introduce himself or herself, or   be kno wn as a police officer. The police officer must also inform the person to be searched that any inaction on his or her part will amount to a waiver of any of his or her objections that the circumstances do not amount to a reasonable search. 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. The fundamental nature of a person’s constitutional right to privacy requires no less.”80 Further, for a valid stop and frisk, the policeman undertaking it must have made the personal observation about the suspicious movements of the suspect, not on the information supplied by somebody else. As the Court framed the issue: “The police officers identified the alleged perpetrator through facts that were not based on their personal knowledge. The information as to the accused’s whereabouts was sent through a text message. The accused who never acted suspicious was identified by a driver. The bag that allegedly contained the contraband was required to be opened under intimidating circumstances and without the accused having been fully apprised of his rights. This was not a reasonable search within the meaning of the Constitution. There was no reasonable suspicion that would allow a legitimate ‘stop and frisk’ action.” The Court explained that “stop and frisk” searches are conducted to prevent the occurrence of a crime. “‘Stop and frisk’ searches (sometimes referred to as Terry  searches) are necessary for law enforcement. That is, law enforcers should be given the legal arsenal to prevent the commission of  offenses. However, this should be balanced with the need to protect the privacy of citizens in accordance with Article III, Section 2 of the Constitution. The balance lies in the concept of ‘suspiciousness’ present in the situation where the police officer finds himself or herself in. This may be undoubtedly based on the experience of the police officer. Experienced police officers have personal experience dealing with criminals and criminal behavior. Hence, they should have the ability to discern – based on facts that they themselves observe – whether an individual is acting in a suspicious manner. Clearly, a basic criterion would be that the police officer, with his or her personal knowledge, must observe the facts leading to the suspicion of an illicit act.” In this particular case, Cogaed was simply a passenger carrying a bag and traveling on board a jeepney. There was nothing suspicious, moreover, criminal, about riding a jeepney or carrying a bag. The assessment of suspicion was not made by the police officer but by the jeepney driver. It was the driver who signalled to the police that Cogaed was “suspicious.” 3.  Homar v. People, 768 SCRA 584 (2015) Where there is no arrest, there could be no justification for an incidental search. Here, the petitioner  was allegedly arrested for jaywalking but the same was not duly proven. “Clearly, no arrest preceded the JURISTS REVIEW CENTER search on the person of the petitioner. When Tan and Tangcoy allegedly saw the petitioner jaywalking, they did not arrest him but accosted him and pointed to him the right place for crossing. In fact, ac cording to the RTC, Tan and Tangcoy ‘immediately accosted him and told him to cross [at] the designated area.’ BAR REVIEW 2017 Tan and Tangcoy did not intend to bring the petitioner under custody or to restrain his liberty. This lack  of intent to arrest him was bolstered by the fact that there was no criminal charge that was filed against the petitioner for crossing a ‘no jaywalking’ area. From Tan’s testimony, the intent to arrest the petitioner  only came after they allegedly confiscated the shabu.” R 80 B G  In Villanueva v. People, 740 SCRA 456 (2014) , the Court said: “Consent must also be voluntary in order to validate an otherwise vis-à-vis A Library Liberties  An Arsenal Of Arms illegal search; that is, the consent must be Of unequivocal, specific, intelligently given, and uncontaminated by any dur ess or coercion. In this case, petitioner was merely ‘ordered’ to take out the contents of his pocket.” R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 26 of 99 4.  People v. Breis, 767 SCRA 40 (2015) There is lessened expectation of privacy in a bus or other forms of public transportation. “The bus is public transportation, and is open to the public. The ex pectation of privacy in relation to the constitutional right against unreasonable searches in a public bus is not the same as that in a person’s dwelling. In fact, at that point in time, only the bus was being searched, not Yumol, Breis, or their   belongings, and the search of moving vehicles has been upheld. Moreover, appellants are not in any  position to claim protection of the right against unreasonable searches as to the warrantless search of the  bus.” And, in regard to leaving things behind, the Court pointed out: “A further point. Appellants each attempted to alight from a departing bus, leaving behind their belongings. They may be deemed to have abandoned the box in their flight. A thing is considered abandoned and possession thereof lost if the spes recuperandi (the hope of recovery) is gone and the animus revertendi (the intention of returning) is finally given up. That appellants got up to leave a departing bus without bringing their box points to the absence of both spes recuperandi and animus revertendi. Indeed, although their flight was thwarted by the PDEA agents, both appellants intended to leave the box behind without ret urning for it. Abandonment has the effect of converting a thing into res nullius.” In this regard, “[i]n the United States, abandoned articles, such as those thrown away, are considered bona vacantia, and may be lawfully searched and seized by law enforcement authorities.” Thus, “[a]pplied analogously, there is no objectionable warrantless search and seizure of the box of marijuana abandoned in the bus by appellants.” 5.  Dela Cruz v. People, 779 SCRA 34 (2016) On searches conducted in ports, “[r]outine 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.” The Court also held that “[w]hile there is a distinction between port  personnel and port police officers in this case, considering that port personnel are not necessarily law enforcers, both should be considered agents of government under Article III of the Constitution. The actions of port personnel during routine security checks at ports have the color of a state-related function.” Further, the Court distinguishedconsented searches from customs search. “Customs searches, as exception to the requirement of a valid search warrant, are allowed when “persons exercising police authority under the customs law . . . effect search and seizure . . . in the enforcement of customs laws.” The requirements for a valid customs search are: (1) the person conducting the search is exercising police authority under customs law; (2) the search is for the enforcement of customs law; and (3) the place searched is not a dwelling place or house. 6.  Dela Cruz v. People, 730 SCRA 655 (2014) JURISTSDrugs REVIEW C, ENTER In Social Justice Society v. Dangerous Board  570 SCRA 410 (2008), the Court, while upholding the validity of R.A. No. 9165’s mandatory random and suspicionless drug testing of students and employees, declared unconstitutional such drug testing for those charged with crimes punishable by AR REVIEW 2017 more than six years’ imprisonment. TheB Court held then that “[t]o impose mandato ry drug testing on the accused is a blatant attempt to harness a medical test as a tool for criminal prosecution, contrary to the stated objectives of RA 9165. Drug testing in this case would violate a persons’ right to privacy guaranteed under Sec. 2, Art. III of the Constitution. Worse still, the accused persons are veritably forced to incriminate themselves.” R B G vis-à-vis An A Library Liberties Arsenal Of Armsfor extortion. Could In the case of Dela Cruz , theOf accused was entrapped in regard to a complaint R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 27 of 99 he be forced to undergo drug testing? The Court said, NO! “The drug test in Section 15 does not cover   persons apprehended or arrested for any unlawful act, but only f or unlawful acts listed under Article  II of R.A. 9165.” The Court explained that “‘[a] person apprehended or arrested’ cannot literally mean any person apprehended or arrested for any crime . The phrase must be read in context and understood in consonance with R.A. 9165. Section 15 comprehends personsarrested or apprehended for unlawful acts listed under Article II   of the law.” Otherwise, to make the “phrase ‘a person apprehended or arrested’ in Section 15 applicable to all persons arrested or apprehended for unlawful acts, not only under R.A. 9165 but for all other crimes, is tantamount to a mandatory drug testing of all  persons apprehended or arrested for any crime. To overextend the application of this provision would run counter to our pronouncement inSocial Justice Society v. Dangerous Drugs Board and Philippine  Drug Enforcement Agency, . . .” 7.  Maryland v. King , 569 U.S. ___ (No. 12-207, 3 June 2013) In this case, King was arrested on first- and second-degree assault charges. During the processing of  his case through a facility, booking personnel used a cheek swab to take a DNA sample pursuant to the Maryland DNA Collection Act (Act). The DNA matched an unsolved 2003 rape. The accused was then charged with that crime. He was eventually convicted for the rape in spite of his move to suppress the DNA match on Fourth Amendment grounds. The U.S. Supreme Court held that when officers make an arrest supported by probable cause to hold for a serious offense and bring the suspect to the station to  be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.81 8.  Birchfield v. North Dakota, 579 U.S. ___ (No. 14-1468, 23 June 2016) Could a person arrested for drunk driving be made to undergo a warrantless breath test  or taking of a blood sample? The Court held that the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving but not warrantless blood tests. Why the difference? Breath tests do not implicate significant privacy concerns. The physical intrusion is almost negligible. The same could not be said about blood tests. They require “piercing the skin”and extract a part of the subjects’s body, and thus are more significantly more intrusive than blowing into a tube. And, on the so-called implied consent laws  which require drivers to submit to blood alcohol concentration (BAC) tests, t he Court said that its prior opinions have referred approvingly to the general concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply. However, it is another matter for a State no t only to insist upon an intrusive blood test, but also to impose criminal penalties on the refusal to submit to such a test. “There must be a limit JURISTS REVIEW CENTER to the consequences to which motorists may be deemed to have consented by virtue of a decision to drive on public roads.” 9. United States v. Jones , 565 U.S. ___R (No. 10-1259, 23 January 2012) BAR 2017 EVIEW This case illustrates once more the adjustments and adaptations that would have to be done in regard to constitutional guarantees applied in relation to modern law-enforcement amenities, such as Global Position System (GPS) tracking device. The U.S. Supreme Court held that the attachment of such a R 81 B G  DNA testing is also subject to the requirement of reasonableness. Thus, in paternity suits, before a man may be required to vis-à-vis A requiring Library Liberties OforArms undergo such a test, the one himOf to do so must be able to present  An  primaArsenal facie evidence establish a reasonable possibility of paternity. (See Lucas v. Lucas, 650 SCRA 667 [2011]) R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 28 of 99 device to an individual’s vehicle, and subsequent use of that device to monitor the vehicle’s movements on public streets, constitutes a search within the meaning of the Fourth Amendment. It is also said that it is beyond dispute that a vehicle is an “effect” as that term is used in the Amendment. The case also discussed some legal developments relative to the Fourth Amendment protection. “The text of the Fourth Amendment reflects its close connection to property, since otherwise it would have referred simply to ‘the right of the people to be secure against unreasonable searches and seizures’; the  phrase ‘in their persons, houses, papers, and effects’ would have been superfluous. Consistent with this understanding, our Fourth Amendment jurisprudence was tied to common-law trespass, at least until the latter half of the 20th century. Kyllo v. United States, 533 U. S. 27, 31 (2001); . . . Thus, in Olmstead  v. United States, 277 U. S. 438 (1928), we held that wiretaps attached to telephone wires on the public streets did not constitute a Fourth Amendment search because ‘[t]here was no entry of the houses or  offices of the defendants,’. . . Our later cases, of course, have deviated from that exclusively  property-based approach. In Katz  v. United States, 389 U. S. 347, 351 (1967), we said that ‘the Fourth Amendment protects people, not places,’ and found a violation in attachment of an eavesdropping device to a public telephone booth. Our later cases have applied the analysis of Justice Harlan’s concurrence in that case, which said that a violation occurs when government officers violate a person's ‘reasonable expectation of privacy.’” 10. Writ of Habeas Data To provide further protection to the people against assaults on their right to privacy, the Supreme Court has also come up with the Rule on the Writ of Habeas Data.82 This is a remedy available to any  person whose right to privacy in life, liberty and security is violated or threatened by an unlawful act or  omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of  the aggrieved party. Reliefs may include the enjoining of the act complained of, or the deletion, destruction, or rectification of the erroneous data or information.83 In Manila Electric Company v. Lim, 632 SCRA 195 (2010), the Court held that the writ could not  be used to thwart the exercise of management prerogative to transfer employees. The “habeas data rule, in general, is designed to protect by means of judicial complaint the image, privacy, honor, information, and freedom of information of an individual. It is meant to provide a forum to enforce one’s right to the truth and to informational privacy, thus safeguarding the constitutional guarantees of a person’s right to life, liberty and security against abuse in this age of information technology. It bears reiteration that like the writ of amparo, habeas data was conceived as a response, given the lack of effective and available remedies, to address the extraordinary rise in the number of killings and enforced disappearances. Its intent is to address violations ofJURISTS or threats R toEVIEW the rights to life, liberty or security as a remedy CENTER independently from those provided under prevailing Rules.” Further, “the writs of amparo and habeas data will NOT issue to protect purely property or commercial concerns nor when the grounds invoked in support of the petitions therefor are vague constitutes a property right under  BARorRdoubtful. 2017 EVIEW Employment the context of the due process clause of the Constitution.” 11. Gamboa v. Chan, 677 SCRA 385 (2012) R B G The petitioner, a town mayor, was named by the Philippine National Police as among those 82 83  Effective 2 February 2008, pursuant the A.M. No. 08-1-16-SC (22 January 2008). vis-à-vis A Library OftoLiberties  An Arsenal  See also the Writ of Amparo, discussed in relation to the Writ of  Habeas Corpus. Of Arms R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 29 of 99 maintaining a private army or PAG (Private Army Group) in a report it submitted to the  Zeñarosa Commission, a body created by then President Arroyo to investigate the existence of PAGs with a view to eliminating them before the 10 May 2010 elections and dismantling them permanently in the future. Portions of the confidential report were leaked to the press and Gamboa was mentioned in both broadcast and print media. She claimed that she was publicly tagged as someone who maintains a PAG on the basis of the unverified information that the PNP-Ilocos Norte gathered and forwarded to the Zeñarosa Commission, and that her malicious or reckless inclusion in the list also made her, as well as her  supporters and other people identified with her, susceptible to harassment and police surveillance operations. Contending that her right to privacy was violated and her reputation maligned and destroyed, she then sought a writ of habeas data seeking the following reliefs: (a) destruction of the unverified reports from the PNP Ilocos Norte database; (b) withdrawal of all information forwarded to higher PNP officials; (c) rectification of the damage done to her honor; (d) ordering respondents to refrain from forwarding unverified reports against her; and (e) restraining respondents from making baseless reports. The Supreme Court held that an individual’sright to privacy must be balanced with the government’s interests, and if the latter is of legitimate, overriding and compelling importance, then the individual’s claim to privacy must give way. In this particular instance, “the state interest of dismantling PAGs far  outweighs the alleged intrusion on the private life of Gamboa, especially when the collection and forwarding by the PNP of information against her was pursuant to a lawful mandate.” After noting that the issuance of Administrative Order No. 275 creating the Zeñarosa Commission “articulates a legitimate state aim, which is to investigate the existence of PAGs with the ultimate objective of dismantling them permanently,” the Court proceeded to hold that “the forwarding of  information by the PNP to the Zeñarosa Commission was not an unlawful act that violated or threatened her right to privacy in life, liberty or security. The PNP was rationally expected to forward and share intelligence regarding PAGs with the body specifically created for the purpose of investigating the existence of these notorious groups.” As for the writ of habeas data, the Court came up also with edifying elucidations. Said the Court: “The writ of habeas data is an independent and summary remedy designed to protect the image, privacy, honor, information, and freedom of information of an individual, and to provide a forum to enforce one’s right to the truth and to informational privacy. It seeks to protect a person’s right to control information regarding oneself, particularly in instances in which such information is being collected thro ugh unlawful means in order to achieve unlawful ends. It must be emphasized that in order for the privilege of the writ to be granted, there must exist a nexus between the right to privacy on the one hand, and the right to life, liberty or security on the other.” Then, taking note of the novelty of the remedy, the Court pointed out that “[t]he notion of informational privacy is still developing in Philippine law and jurisprudence. JURISTS REVIEW ENTER Considering that even the Latin American our own Rule on the Writ of Habeas habeas data, onCwhich  Data is rooted, finds its origins from the European tradition of data protection, this Court can be guided  by cases on the protection of personal data decided by the European Court of Human Rights (ECHR). B84AR EVIEW 2017 Of particular note is Leander v. Sweden,  in R which the ECHR balanced the right of citizens to be free from interference in their private affairs with the right of the state to protect its national security.” R 84 A Library Of Liberties  26 March 1987, 9 EHRR 433. B G vis-à-vis An Arsenal Of Arms R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 30 of 99 F. PRIVACY OF COMMUNICATIONS Even without the explicit guarantee of the privacy of communications and correspondence in the U.S. Constitution, the same privilege was still considered available, pursuant to the Fourth Amendment .85  This is because, wiretapping, or electronic eavesdropping, is also a form of a seizure, an intrusion into one’s sacred private precincts, which when not previously authorized by a judge, or demanded by exigencies, would be considered unreasonable and thus violative of a person’s right to be left and let alone. Spying on a person’s correspondence is also a form of unwarranted incursion into his private world. It has likewise been held that this constitutional protection is available even in highly personal relationships, such as in marital spats between Lothario-husbands and raging jealous wives.86 Related to privacy of communications is the Anti-Wiretapping Act (R.A. 4200) which the Court has declared as prohibiting the secret recording of conversations either through wiretapping87  or tape recorders. This means that whenever a recording is made of one’s conversations, the same must be with the knowledge and consent of everyone involved.88 However, this does not apply if the conversation is not intended to be private, such as an altercation where the participants do not really care who are listening.89 Also, overhearing by means of a telephone extension is not covered by R.A. No. 4200, however, so held the Court in Gaanan v. Intermediate Appellate Court , 145 SCRA 112 1986). (But nowadays, with the proliferation of cellphones, who still needs a telephone extension?)  Now, of more immediate concern is the convenience – and danger – in the use of the internet and cell  phones. 1. Vivares v. St. Theresa’s College , 737 SCRA 92 (2014) The Court asked: “The question now though is up to what extent is the right to privacy protected in OSNs [online social networks]?” In this case, graduating high school students which had revealing picture  posts – scantily clad – in Facebook   cost them their participation in the commencement exercises. Claiming that their right to privacy was violated, they availed of the remedy of habeas data. In the  process of resolving the issue, the Court provided a sort of a tour into the concept of habeas data,  privacy and Online Social Networks. The Court stressed that habeas data “was designed to safeguard individual freedom from abuse in the information age.’ It is a protection against unlawful acts or omissions of public officials and of private individuals or entities engaged in gathering, collecting, or storing data about the aggrieved party and his or her correspondences, or about his or her family. Such individual or entity need not be in the business of collecting or storing data. . . . It does not necessarily mean that the activity must be done in pursuit of a business. What matters is thatJthe person or entity must gathering, collecting or storing said data REVIEW Cbe URISTS ENTER or information about the aggrieved party or his or her family. Whether such undertaking carries the element of regularity, as when one pursues a business, and is in the nature of a personal endeavour, for  any other reason or even for no reason at immaterial and such will not prevent the writ from getting Ball, ARisR EVIEW 2017 to said person or entity.” 85 86 87 88 89  See Katz v. United Sta tes, 389 U.S. 347 (1967) R  Zulueta v. Court o f Appeals, 253 SCRA 699 (1996) B G Salcedo-Ortañez v. Court of Appeals, 235 SCRA 111 (1994)  Ramirez v. Court of 248 Of SCRA 590 (1995) vis-à-vis An AAppeals, Library Liberties  Navarro v. Court of Appeals, 313 SCRA 153 (1999) Arsenal Of Arms R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 31 of 99 As for the concept of privacy, it “has, through time, greatly evolved, with technological advancements having an influential part therein. This evolution was briefly recounted in former Chief Justice Reynato S. Puno’s speech, The Common Right to Privacy, where he explained the three strands of the right to  privacy, viz: (1) locational or situational privacy; (2) informational privacy; and (3) decisional privacy. Of the three, what is relevant to the case at bar is the right to informational privacy  –– usually defined as the right of individuals to control information about themselves . With the availability of numerous avenues for information gathering and data sharing nowadays, not to mention each system’s inherent vulnerability to attacks and intrusions, there is more reason that every individual’s right to control said flow of information should be protected and that each individual should have at least a reasonable expectation of privacy in cyberspace.” As for online networks, “[b]riefly, the purpose of an OSN is precisely to give users the ability to interact and to stay connected to other members of the same or different social media platform through the sharing of statuses, photos, videos, among others, depending on the services provided by the site. It is akin to having a room filled with millions of personal bulletin boards or ‘walls,’ the contents of which are under the control of each and every user. In his or her bulletin board, a user/owner can post anything  –– from text, to pictures, to music and videos –– access to which would depend on whether he or she allows one, some or all of the other users to see his or her posts. Since gaining popularity, the OSN  phenomenon has paved the way to the creation of various social networking sites, including the one involved in the case at bar, www.facebook.co m (Facebook), which, according to its developers, people use ‘to stay connected with friends and family, to discover what’s going on in the world, and to share and express what matters to them.’” Facebook, it noted, has provided for different privacy tools designed to regulate the accessability of a user’s profile as well as information uploaded by user. “The foregoing are  privacy tools, available to Facebook users, designed to set up barriers to broaden or limit the visibility of his or her specific profile content, statuses, and photos, among others, from another user’s point of  view. In other words, Facebook extends its users an avenue to make the availability of their Facebook  activities reflect their choice as to ‘when and to what extent to disclose facts about [themselves] – and to put others in the position of receiving such confidences.’ Ideally, the selected setting will be based on one’s desire to interact with others, coupled with the opposing need to withhold certain information as well as to regulate the spreading of his or her personal information.” And what is the relevance of the privacy settings to the case? “Without these privacy settings, respondents’ contention that there is no reasonable expectation of privacy in Facebook would, in context,  be correct. However, such is not the case. It is through the availability of said privacy tools that many OSN users are said to have a subjective expectation that only those to whom they grant access to their profile will view the information they post or upload thereto . This, however, does not mean that any Facebook user automatically a protected expectation of privacy in all of his or her  JURISTS Rhas CENTER EVIEW Facebook activities. Before one can have an expectation of privacy in his or her OSN activity, it is first necessary that said user, in this case the children of petitioners, manifest the intention to keep certain posts private, through the employment to prevent access thereto or to limit its BARofRmeasures EVIEW 2017 visibility . And this intention can materialize in cyberspace through the utilization of the OSN’s privacy tools. In other words, utilization of these privacy tools is the manifestation, in cyber world, of the user’s invocation of his or her right to informational privacy .” R B G The Court concluded: “Considering that the default setting for Facebook posts is ‘Public,’ it can be surmised that the photographs question were viewable to An everyone on Facebook, vis-à-vis A LibraryinOf Liberties Arsenal Of Armsabsent any proof that  petitioners’ children positively limited the disclosure of the photograph. If such were the case, they cannot R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 32 of 99 invoke the protection attached to the right to informational privacy. It is well to emphasize at this point that setting a post’s or profile detail’s privacy to ‘Friends’ is no assurance that it can no longer be viewed  by another user who is not Facebook friends with the source ofthe content.” The long and short of it –  even assuming that the photos in issue are visible only to the sanctioned students’ Facebook friends, respondent STC can hardly be taken to task for the perceived privacy invasion since it was the minors’ Facebook friends who showed the pictures to school officials. Respondents were mere recipients of what were posted. They did not resort to any unlawful means of gathering the information as it was voluntarily given to them by persons who had legitimate access to the said posts. Clearly, the fault, if any, lies with the friends of the minors. The Court concluded: “In sum, there can be no quibbling that the images in question, or to be more precise, the photos of minor students scantily clad, are personal in nature, likely to affect, if indiscriminately circulated, the reputation of the minors enrolled in a conservative institution. However, the records are bereft of any evidence, other than bare assertions that they utilized Facebook’s  privacy settings to make the photos visible only to them or to a select few. Without proof that they placed the photographs subject of this case within the ambit of their protected zone of privacy, they cannot now insist that they have an expectation o f privacy with respect to the photographs in question.” 2.  Riley v. California, 573 U.S. ___ (No. 13–132, 25 June 2014) May the police, without a warrant, search digital information on a cell phone seized from an arrest ed  person? The answer, as a rule, is no. Cell phones implicate extensive privacy interests which necessitate the guiding hand of a warrant. The Court reminded everyone again that “the ultimate touchstone of the Fourth Amendment is ‘reasonableness’” and that “[w]here a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing, . . . reasonableness generally requires the obtaining of a judicial warrant.” The justification for physical searches incident to lawful arrest – o fficer safety and evidence preservation – could not be extended to search of digital data in cell phones. “Cell phones, . . . place vast quantities of personal information literally in the hands of individuals. A search of the information on a cell phone bears little resemblance to the type of brief physical search.” For one, “[d]igital data stored on a cell phone cannot itself be used as a weapon to harm an arresting officer or to effectuate the arrestee’s escape. Law enforcement officers remain free to examine the  physical aspects of a phone to ensure that it will not be used as a weapon — say, to determine whether  there is a razor blade hidden between the phone and its case. Once an officer has secured a phone and eliminated any potential physical threats, however, data on the phone can endanger no one.” As for evidence destruction unique to digital data – remote wiping  and data encryption90 – the Court held: “In any event, as to remote wiping, law enforcement is not without specific means to address the threat. Remote wiping can be fully prevented by disconnecting a phone from the network. There are at least two simple ways to do this: J First, law enforcement officers can turn the phone off or remove its REVIEW C URISTS ENTER  battery. Second, if they are concerned about encryption or other potential problems, they can leave a  phone powered on and place it in an enclosure that isolates the phone from radio waves.” Moreover, “[t]o the extent that law enforcement still has specific concerns about the potential loss of evidence in a BAR REVIEW 2017  particular case, there remain more targeted ways to address those concerns. If the police are truly confronted with a ‘now or never’ situation, — for example, circumstances suggesting that a defendant’s 90 R B G  Remote wiping occurs when a phone, connected to a wireless network, receives a signal that eras es stored data. This can happen when a third party sends a remote signal or when a ph one is preprogrammed to delete data upon entering or leaving certain geographic areas (s o-called “geofencing”). vis-à-vis A feature Library Liberties  An toArsenal Of Arms Encryption is a security that s Of ome modern cell phones use in addition password protection. When such phones lock, data  becomes protected by sophisticated encryption that renders a phone all b ut “unbreakab le” unless police know the pass word. R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 33 of 99  phone will be the target of an imminent remote-wipe attempt — they may be able to rely on exigent circumstances to search the phone immediately.” While it is true that a person arrested has a reduced privacy interests, still “[t]he fact that an arrestee has diminished privacy interests does not mean that the Fourth Amendment falls out of the picture entirely. Not every search ‘is acceptable solely because a person is in custody.’” Just to illustrate the wide difference between digital contents and physical objects, the Court came up with the following observations: “The United States asserts that a search of all data stored on a cell  phone is ‘materially indistinguishable’ from searches of these sort s of physical items. . . . That is like saying a ride on horseback is materially indistinguishable from a flight to the moon. Both are ways of  getting from point A to point B, but little else justifies lumping them together. Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse. A conclusion that inspecting the contents of an arrestee’s pockets works no substantial additional intrusion on privacy beyond the arrest itself may make sense as applied to physical items, but any extension of that reasoning to digital data has to rest o n its own bottom.” And, if only to remind everyone of the world that we keep in our phones, consider these: “Cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person. The term ‘cell phone’ is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, ca lendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers. One of the most notable distinguishing features of modern cell phones is their immense storage capacity. Before cell phones, a search of a person was limited by physical realities and tended as a general matter to constitute only a narrow intrusion on privacy.” Moreover, “the  possible intrusion on privacy is not physically limited in the same way when it comes to cell phones. The current top-selling smart phone has a standard capacity of 16 gigabytes (and is available with up to 64 gigabytes). Sixteen gigabytes translates to millions of pages of text, thousands of pictures, or hundreds of videos. . . . We expect that the gulf between physical practicability and digital capacity will only continue to widen in the future.” In this regard, “[t]he sto rage capacity of cell phones has several interrelated consequences for privacy. First, a cell phone collects in one place many distinct types of information — an address, a note, a  prescription, a bank statement, a video — that reveal much more in combination than any isolated record. Second, a cell phone’s capacity allows even just one type of information to convey far more than  previously possible. The sum of an individual’s private life can be reconstructed through a thousand  photographs labeled with dates, locations, and descriptions; the same cannot be said of a photograph or  JURISTS EVIEW two of loved ones tucked into a wallet. Third,R the data onC a ENTER phone can date back to the purchase of the  phone, or even earlier. A person might carry in his pocket a slip of paper reminding him to call Mr. Jones; he would not carry a record of all his communications with Mr. Jones for the past several months, as would routinely be kept on a phone. BAR REVIEW 2017 “Finally, there is an element of pervasiveness that characterizes cell phones but not physical records. Prior to the digital age, people did not typically carry a cache of sensitive personal information with them as they went about their day. Now it is the person who is not carrying a cell phone, with all that it contains, who is the exception. . . . A decade ago police officers searching an arrestee might have occasionally stumbled across a Of highly personalvis-à-vis item such An as aArsenal diary. . .Of . Today, A Library Liberties Armsby contrast, it is no exaggeration to say that many of the more than 90% of American adults who own a cell phone keep on R B G R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 34 of 99 their person a digital record of nearly every aspect of their lives — from the mundane to the intimate.” And talking of one’s whereabouts, “GPS monitoring generates a precise, comprehensive record of  a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.” As for apps, or mobile application software, they “offer a range of  tools for managing detailed information about all aspects of a person’s life. There are apps for Democratic Party news and Republican Party news; apps for alcohol, drug, and gambling addictions; apps for sharing  prayer requests; apps for tracking pregnancy symptoms; apps for planning your budget; apps for every conceivable hobby or pastime; apps for improving your romantic life. There are popular apps for buying or selling just about anything, and the records of such transactions may be accessible on the phone indefinitely. There are over a million apps available in each of the two major app stores; the phrase ‘there’s an app for that’ is now part of the popular lexicon. The average smart phone user has installed 33 apps, which together can form a revealing montage of the user’s life.” How has the world been transformed in the relatively few years? “In 1926, Learned Hand observed (in an opinion later quoted in Chimel ) that it is ‘a totally different thing to search a man’s pockets and use against him what they contain, from ransacking his house for everything which may incriminate him.’ . . . If his pockets contain a cell phone, however, that is no longer true. Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form — unless the phone is.” How then is the government to response to criminal enterprise facilitated or enhanced by the use of  cell phones? “We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime. Cell phones have become important tools in facilitating coordination and communication among members of criminal enterprises, and can provide valuable incriminating information about dangerous criminals. Privacy comes at a cost. Our holding, of course, is not that the information on a cell phone is immune from search; it is instead that a warrant is generally required before such a search, even when a cell phone is seized incident to arrest. Our cases have historically recognized that the warrant requirement is ‘an important working part of our machinery of government,’ not merely ‘an inconvenience to be somehow ‘weighed’ against the claims of police efficiency.’ . . . Recent technological advances similar to those discussed here have, in addition, made the process of obtaining a warrant itself more efficient. . . . Moreover, even though the search incident to arrest exception does not apply to cell phones, other case-specific exceptions may still justify a warrantless search of a  particular phone” such as the exigent circumstances exception. As a reminder to everyone, “[m]odern cell phones are not just another technological convenience. With all they contain and all they J may reveal,R they hold for Americans ‘the privacies of life,’ . . . Cmany URISTS EVIEW ENTER The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before B searching a cell phone seized incident to an arrest is accordingly 2017 AR REVIEW simple — get a warrant.” Sounds so personal and familiar? R A Library Of Liberties B G vis-à-vis An Arsenal Of Arms R B GOROSPE G. CONSTITUTIONAL LAW Notes, Updates and Teasers Page 35 of 99 FREEDOM OF EXPRESSION The right to speak one’s mind freely is a highly valued freedom in a republican and democratic society.1 If the people are really to be the source of power, and that sovereignty resides in them, then they should rightfully determine the fate of the nation. But they can only do the same if they are free to know and learn and to discuss matters unfettered by restrictions placed on them by the government. The authorities are supposed to let the people decide what is good for them and the government, not t he other  way around. If the government had its way, chances are it would only be allowing the free flow of  information that would be favorable to itself. In the process, it would be filtering and managing the news and information that are to guide or influence the people in making their decisions. The interplay of  thoughts in the free and open market place of ideas provides the best means by which the interest of  society could be achieved, or so the philosophy of this freedom suggests. “First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end. The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.”2 Parenthetically, the press is at the forefront of  expression, for without it dissemination could hardly be had.“The best gauge of a free and democratic society rests in the degree of freedom enjoyed by its media.”3 Without the mass media to broadcast and  propagate a person’s ideas or speech, it would be more like flowers born to blush unseen, wasting their  sweetness in the desert air.4 In keeping with the underlying rationale for the freedom, this guarantee basically prohibits the State from exercising prior restraint  or censorship. If the people are to decide, they must be allowed access to all available ideas and information, and not simply be given a sanitized version. At the same time, the freedom also means a corresponding check on subsequent punishment . Otherwise, freedom to speak  unhindered may become a trap if a punishment so eagerly awaits a few steps away. Thus, only those which are clearly outside the scope of free expression may be subject to sanctions. In this regard, there is the concept of privileged communications which exempts the person communicating from prosecution. And here, it has been said that the enumeration under Art. 354 of the Revised Penal Code is not an exclusive list of qualifiedly privileged communications since fair commentaries on matters of public interest  are likewise privileged. The rule on privileged communications had its genesis not in the nation’s  penal code but in the Bill of Rights of the Constitution guaranteeing freedom of speech and of the press.5 It has also been held that the civic duty to see to it that public duty is discharged faithfully is inconsistent with requirements placing on citizens the burden of proving good motives and justifiable ends in airing their plaints, comments or criticisms. 6 Indeed, a government that is not afraid of its own shadow should have no problem dealing with  people’s plaints. One that sees sinister plots in every group action, one that gives strange meanings to JURISTS REVIEW CENTER ordinary words, one which employs force to prevent people from knowing about skeletons in the closets may soon be hiding real skeletons if not checked at the earliest opportunity. More than a hundred years ago, it was observed: “It may be that it is the obnoxious thing in its mildest and least repulsive form; but BAR REVIEW 2017 1 2 3 4 5 6  “Freedom of expression enjoys an exalted place in the hierarchy of constitutional rights.” ( Lopez v. People, 642 SCRA 668 [2011])  Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) R  David v. Macap agal-Arroyo, 489 SCRA 160 (2006) B G  See Thomas Gray’s Elegy Written on a Country Churchya rd   Borjal v. Court of App eals, 301 SCRA (1999) vis-à-vis An A Library Of 1Liberties Vasquez v. Court of Appeals, 314 SCRA 460 (1999) Arsenal Of Arms R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 36 of 99 illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and pr operty should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.”7 Or, in the words of Justice Black, dissenting in Board of Education v. Allen, “it nearly is always by insidious approaches that the citadels of liberty are most successfully attacked.”8 Do we really know how to learn from the past?9 Or is it much easier to go along with our indolent and careless ways to follow the path of least resistance, confident in our own safety and welfare, until we realize we are already at the edge of the precipice, needing only a slight push or whiff of air to send us  plummeting into the abyss? While the guarantee of freedom of expression has at its core political speech, it also spreads its wings to cover other forms of speech, including commercial speech. In Pharmaceutical and Health Care  Association of the Philippines v. Duque III , 535 SCRA 265 (2007), Chief Justice Puno, in his concurring opinion wrote: “I write to elucidate another reason why the absolute ban   on the advertising and  promotion of breastmilk substitutes found under Sections 4(f) and 11 of A.O. No. 2006-0012 (RIRR) should be struck down. The advertising and promotion of breastmilk substitutes properly falls within the ambit of the term commercial speech – that is, speech that proposes an economic transaction. This is a separate category of speech which is not accorded the same level of protection as that given to other  constitutionally guaranteed forms of expression but is nonetheless entitled to protection .” Any  parameters for commercial speech protection? Well, yes. C.J. Puno made reference to the four-part analysis of Central Hudson Gas & Electric v. Public Service Commission, 447 U.S. 557 (1980): “To  begin with, the commercial speech must ‘concern lawful activity and not be misleading”  if it is to  be protected under the First Amendment. Next, the asserted governmental interest must be substantial . If both of these requirements are met, it must next be determined whether the state regulation directly advances the government interest asserted , and whether it is not more extensive than is necessary to serve the interest.”  So what would all these lead to? “I proffer the humble view that the absolute ban  on advertising prescribed under Sections 4(f) and 11 of the RIRR is unduly restrictive and is more than necessary  to further the avowed governmental interest of promoting the health of infants and young children. It ought to be self-evident, for instance, that the advertisement of  such products which are strictly informative cuts too deep on free speech. The laudable concern of the respondent for the promotion of the health of infants and young children cannot justify the absolute, overarching ban.”10 JURISTS REVIEW CENTER  Estrada v. Sandiganbayan, 369 SCRA 394 (2001), discussed the concepts of facial challenge and overbreadth , explaining that a facial challenge is allowed to be made to a vague statute and to one which is overbroad because of possible “chilling effect” upon protected speech. The theory is that “[w]hen BAR REVIEW 2017 statutes regulate or proscribe speech and no readily apparent construction suggests itself as a vehicle for  7 8 9  Boyd v. United Stat es, 116 U.S. 616 (1886)  392 U.S. 236 (1968), citing Boyd . R B  Those who cannot remember the past are condemned to repeat it. 10 G S George Santayana  In his separate opinion in Chavez v. Gonzales, 545 SCRA 441 (2008), Justice Carpio, referring to Pharmaceutical and Health Of recognized Liberties  An Arsenal Of Armsexpression only in October  Care Association, pointedA outLibrary that the “Court falsevis-à-vis or misleading advertisement as unprotected 2007.” R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 37 of 99 rehabilitating the statutes in a single prosecution, the transcendent value to all society of constitutionally  protected expression is deemed to justify allowing attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with narrow specificity.” The possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that the protected speech of others may be deterred and  perceived grievances left to fester because of the inhibitory effects of overly broad statutes. David v.  Macapagal-Arroyo, 489 SCRA 160 (2006), also spoke of such concepts. “[T]he overbreadth doctrine is an analytical tool developed for testing ‘on their faces’ statutes infree speech cases, also known under  the American Law as First Amendment cases.” The Court also noted: “Moreover, the overbreadth doctrine is not intended for testing the validity of a law that ‘reflects legitimate state interest in maintaining comprehensive control over harmful, constitutionally unprotected conduct.’ Undoubtedly, lawless violence, insurrection and rebellion are considered ‘harmful’ and ‘constitutionally unprotected conduct.’ . . . Thus, claims of facial overbreadth are entertained in cases involving statutes which, by their terms, seek to regulate only ‘spoken words’ and again, that ‘overbreadth claims, if entertained at all, have been curtailed when invoked against ordinary criminal laws that are sought to be applied to protected conduct.’ . . . [F]acial invalidation of laws is considered as ‘manifestly strong medicine ,’ to be used ‘sparingly and only as a last resort ,’ and is ‘generally disfavored ;’ The reason for this is obvious. Embedded in the traditional rules governing constitut ional adjudication is the principle that a person to whom a law may be applied will not be heard to challenge a law on the ground that it may conceivably be applied unconstitutionally to others, i.e., in other situations not before the Court. ” Assembly is also a form of expression. In this regard, the pronouncements of the Court in David v.  Macapagal-Arroyo, are also enlightening. The Court said: “‘Assembly’ means a right on the part of the citizens to meet peaceably for consultation in respect to public affairs. It is a necessary consequence of  our republican institution and complements the right of speech. As in the case of freedom of expression, this right is not to be limited, much less denied, except on a showing of a clear and present danger  of  a substantive evil that Congress has a right to prevent. In other words, like other rights embraced in the freedom of expression, the right t o assemble is not subject to previous restraint or censorship. It may not  be conditioned upon the prior issuance of a permit or authorization from the government authorities except, of course, if the assembly is intended to be held in a public place, a permit for the use of such  place, and not for the assembly itself, may be validly required. The ringing truth here is that petitioner  David, et al . were arrested while they were exercising their right to peaceful assembly. They were not committing any crime, neither was there a showing of a clear and present danger that warranted the limitation of that right. As can be gleaned from circumstances, the charges of inciting to sedition  and violation of BP 880  were mere afterthought. Even the Solicitor General, during the oral argument, failed to justify the arresting officers’ conduct. In  De Jonge v. Oregon, it was held that peaceable assembly JURISTS REVIEW CENTER cannot be made a crime, . . .” 1.  Disini, Jr. v. Secretary of Justice , 716 237 (2014) and 723 SCRA 109 (2014) BAR RSCRA 2017 EVIEW Issues were raised against the constitutionality of the various provisions of Cybercrime Prevention  Act of 2012 (R.A. No. 10175). The Court upheld some provisions but struck down others. Among the highlights from the ruling: R B G Cyberspace, the benefits and costs. Cyberspace is “a system that accommodates millions and billions of simultaneous andAongoing individual accessesvis-à-vis to and uses ofArsenal the internet. cyberspace is a boon to Library Of Liberties  An OfThe Arms R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 38 of 99 the need of the current generation for greater information and facility of communication. But all is not well with the system since it could not filter out a number of persons of ill will who would want to use cyberspace technology for mischiefs and crimes.”  Levels of Scrutiny. “The Court has in a way found the strict scrutiny standard, an American constitutional construct, useful in determining the constitutionality of laws that tend to target a class of  things or persons. According to this standard, a legislative classification that impermissibly interferes with the exercise of fundamental right or operates to the peculiar class disadvantage of a suspect class is  presumed unconstitutional. The burden is on the government to prove that the classification is necessary to achieve a compelling state interest and that it is the least restrictive means to protect such interest. Later, the strict scrutiny standard was used to assess the validity of laws dealing with the regulation of  speech, gender, or race as well as other fundamental rights, as expansion from its earlier applications to equal protection.” On Illegal Access and “Ethical Hackers.” “In the cases before it, the Court finds nothing in Section 4(a)(1) that calls for the application of the strict scrutiny standard since no fundamental freedom, like speech, is involved in punishing what is essentially a condemnable act – accessing the computer system of another without right. It is a universally condemned conduct.” How about the danger of suppressing the work of ethical hackers? No problem. “Ethical hackers evaluate the target system’s security and report back to the owners the vulnerabilities they found in it and give instructions for how these can be remedied. Ethical hackers are the equivalent of independent auditors who come into an organization to verify its bookkeeping records.”  Data Interference, Vandalism and Overbreadth Doctrine. “Under the overbreadth doctrine, a proper  governmental purpose, constitutionally subject to state regulation, may not be achieved by means that unnecessarily sweep its subject broadly, thereby invading the area of protected freedoms. But Section 4(a)(3) does not encroach on these freedoms at all. It simply punishes what essentially is a form of  vandalism, the act of willfully destroying without right the things that belong to others, in this case their  computer data, electronic document, or electronic data message. Such act has no connection to guaranteed freedoms. There is no freedom to destroy other people’s computer systems and private documents.” And, moreover, “[a]ll penal laws, like the cybercrime law, have of course an inherent chilling effect, an in terrorem effect or the fear of possible prosecution that hangs on the heads of citizens who are minded to step beyond the boundaries of what is prope r.” Cybersquatting . Cyber-squatting is the acquisition of domain name over the internet in bad faith to  profit, mislead, destroy the reputation, and deprive others from registering the same. “The law is reasonable in penalizing him for acquiring the domain name in bad faith to profit, mislead, destroy JURISTS REVIEW CENTER reputation, or deprive others who are not ill-motivated of the rightful opportunity of registering the same. The challenge to the constitutionality of Section 4(a)(6) on ground of denial of equal protection is  baseless.” BAR REVIEW 2017  Privacy and Identity Theft . Computer-related Identity Theft is the intentional acquisition, use, misuse, transfer, possession, alteration, or deletion of identifying information belonging to another, whether  natural or juridical, without right. “The right to privacy, or the right to be let alone, was institutionalized in the 1987 Constitution as a facet of the right protected by the guarantee against unreasonable searches and seizures. But the Court acknowledged its existence as early as 1968 in Morfe v. Mutuc, it ruled that vis-à-vis An A Library Of Liberties Arsenal Ofis Arms the right to privacy exists independently of its identification with liberty; it in itself fully deserving of  R B G R B GOROSPE  N otes, Updates and Teasers CONSTITUTIONAL LAW No Page 39 of 99 constitutional protection.” In this connection, “[i]n assessing the challenge that the State has impermissibl impermissibly y intrud intruded ed into these zo nes of privacy, a court must determine de termine whether a person perso n has exhibited exhibited a reasonable expectation expect ation of privacy and, if so, whether whet her that ex pectation has been violated violated by unreasonable unreasonable government intrusion.” Now, how about the application of the law in this regard? “[T]he charge of  invalidity invalidity of this section based on o n the overbreadth overbre adth doctrine do ctrine will not hold water wat er since the specific specific conducts co nducts  proscribed do not intrude intrude into into guaranteed freedoms freedoms like like speech. Clearly Clearly,, what this section regulates regulates are specific actions: the acquisition, use, misuse or deletion of personal identifying data of another. There is no fundamental fundamental right right to acquire another’s personal data.” Also, Also, the Court pointed out: “Evidently “Evidently,, the t he theft of identity information must be intended for an illegitimate purpose. Moreover, acquiring and disseminating information made public by the user himself cannot be regarded as a form of theft. The Court has defined intent to gain as an internal act which can be established through the overt acts of the offender, and it may be presumed from the furtive taking of useful property pertaining to another, unless special circumstances circumstances reveal a differen differentt intent on o n the part of the perpetrato r. As such, the press, pre ss, whether  in quest of news reporting or social investigation, has nothing to fear since a special circumstance is  present to negate intent to gain which which is is required by this Section.” Section.” Cybersex. Cybersex. Cybersex, or the willful engagement, maintenance, control, or operation, directly or  indirectly, of any lascivious exhibition of sexual organs or sexual activity, with the aid of a computer  system, for favor or consideration. Would not the law, as written, invite law enforcement agencies into the bedrooms of married couples or consenting individuals? No, “the deliberations of the Bicameral Committee of Congress on this section of the Cybercrime Prevention Act give a proper perspective on the issue. These deliberations show a lack of intent to penalize a ‘private showing x x x between and among two private persons x x x although that may be a form of obscenity to some.’ The understanding of those who drew up the cybercrime law is that the element of ‘engaging in a business’ is necessary to constitute constitu te the t he illegal illegal cybersex. The Act actually act ually seeks to punish pu nish cyber prostitut ion, white slave trade, trad e, and  pornography for favor favor and consideration. consideration. This includes includes interactive interactive prostitution and pornography, pornography, i.e., i.e., by webcam.” And the Court added, “[i]n any event, consenting adults are protected by the wealth of   jurisprudence  jurisprudence delineatin delineating g the bounds of obscenity. obscenity. The Court will will not declare Section 4(c)(1) unconstitutional where it stands a construction that makes it apply only to persons engaged in the  business  business of maintain maintainin ing, g, controlling, controlling, or operating, directly directly or indirectl indirectly, y, the lasciv lascivious ious exhibiti exhibition on of sexual organs or sexual activity with the aid of a computer system as Congress has intended.” Child Pornography. Pornography. “It seems that the above merely expands the scope of the Anti-Child Pornograp Por nography hy Act of 2009 (ACPA) to cover identical activities in cyberspace. In theory, t heory, nothing not hing prevents the government go vernment from invoking invoking the ACPA when prosecuting pro secuting persons per sons who comm co mmit it child child pornography porno graphy using a computer co mputer system.” system.” JURISTS REVIEW CENTER Spam and Commercial Speech. Speech . Unsolicited Commercial Communications or  spam11  is the transmission of commercial electronic communication with the use of computer system which seeks to advertise, sell, or offer for sale products and services. “To prohibit the transmission of unsolicited ads REVIEW 2017 commercial ads addressed to him. AR would deny a person the right to read B his emails, even unsolicited Commercial speech is a separate category of speech which is not accorded the same level of protection as that given to other constitutionally guaranteed forms of expression but is nonetheless entitled to  pro tection. The State cannot rob him him of this right without violatin violating g the constitutionally constitutionally guarantee guara nteed d R 11 B G  “The term ‘spam’ surfaced in early internet chat rooms and interactive fantasy games. One who repeats the same sentence or  A Library Of term Liberties  AnFlying Arsenal Of in Arms comment was said to be maki ng a ‘spam.’ The referr ed to vis-à-vis a Monty Python’s Circus scene Circus which actors would keep saying ‘Spam, Spam, Spam, and Spam’ when reading options from a menu.” R B GOROSPE  N otes, Updates and Teasers CONSTITUTIONAL LAW No Page 40 of 99 freedom of expression. Unsolicited advertisements are legitimate forms of expression.” Cyberlibel . This would refer to the commission of libel through a computer system. The Court held that libel is is not a constitutionally constitutionally protected speech and that the government government has an obl o bligati igation on to t o protect  private indivi individuals duals from defamation. defamation. And, cyberlibel cyberlibel is actually not a new crime since Article Article 353, in relation to Article 355 of the penal code, already punishes it. In effect, Section 4(c)(4) above merely affirms that online defamation constitutes “similar means” for committing libel.” “But the Court’s acquiescence goes only insofar as the cybercrime law penalizes the author of the libelous statement or  article. Cyberlibel brings with it certain intricacies, unheard of when the penal code provisions on libel were enact ed. The culture associated with internet internet media is distinct distinct from that of print. The internet is characterized as encouraging a freewheeling, anything-goes writing style. In a sense, they are a world apart in terms of quickness of the reader’s reaction to defamatory statements posted in cyberspace, facilitated by one-click reply options offered by the networking site as well as by the speed with which such reactions are disseminated disseminated down do wn the line line to other internet users.”  Aiding or Abetting Commission Commission of Cybercrime Cybercrime.. Here, one has to differenti differentiate ate between the t he usual and traditional trad itional means means of aiding aiding or abetting abet ting from its commission commission through throug h the internet. internet . “Aiding or abetting abett ing has of course well-defined meaning and application in existing laws. When a person aids or abets another in destroying a forest, smuggling merchandise into the country, or interfering in the peaceful picketing of  laborers, his action is essentially essentially physical physical and so is susceptible to easy assessment as criminal in in character. charac ter. These forms of aiding or abetting lend themselves to the tests of common sense and human experience. But, when it comes to certain cybercrimes, the waters are muddier and the line of sight is somewhat  blurred. The idea of ‘aiding ‘aiding or abetting’ wrongdo wro ngdo ings online online threatens the heretofore popular and unchallenged dogmas of cyberspace use.” And the Court went on to elucidate elucidate how easy it would be to get trapped under the law if if it it were to  be understood in its traditional non-internet non-internet application. application. “If the post is made availabl availablee to the public, public, meaning to everyone and not only to his friends, anyone on Facebook can react to the posting, clicking any of several buttons of preferences on the program’s screen such as ‘Like,’ ‘Comment,’ or ‘Share.’ ‘Like’ signifi signifies es that the t he reader reade r likes the posting p osting while ‘Comment’ enables him to po st online his feelings feelings or views about the same, such as ‘This is great!’ When a Facebook user ‘Shares’ a posting, the original ‘posting’ will appear on his own Facebook profile, consequently making it visible to his down-line Facebook Faceboo k Friends. Twitter, on o n the other hand, is an internet social soc ial networking netwo rking and microblogging microblogging service that enables its users to send and read short text-based messages of up to 140 characters. These are known as ‘Tweets.’ ‘Twe ets.’ Microblogging Microblogg ing is is the practice of o f posting small pieces of digital content – which could  be in in the form form of text, pictures, links, links, short videos, or other media – on the internet. Instead of friends friends,, a Twitter user has ‘Followers,’ those who subscribe to this particular user’s posts, enabling them to read JURISTS REVIEW CisENTER the same, and ‘Following,’ those whom this particular user subscribed to, enabling him to read their   posts. Like Facebook, a Twitter Twitte r user can make his tweets available available only to his his Followers, Followers, or to the general public. If a post is available to the public, any Twitter user can ‘Retweet’ a given posting. BAR R 2017tweet without the need of copying and EVIEW Retweeting is just reposting or republishing another person’s  pasting it. In the cyberworld, cyberworld, there are many many actors: a) the blogger blogger who originates originates the assail assailed ed statement;  b) the blog service service provider like like Yahoo; c) the internet internet service service provider like like PLDT, Smart, Smart, Globe, Globe, or Sun; d) the t he internet café that may have have provided the computer used for po sting sting the blog; e) the t he person who makes a favorable comment on the blog; and f) the person who posts a link to the blog site.” R B G Librarythe Ofpeculiarities Liberties vis-à-vis  An and Arsenal Armsrelative to the crime Then the Court A considered of the internet onlineOf postings R B GOROSPE  N otes, Updates and Teasers CONSTITUTIONAL LAW No Page 41 of 99 of cyberlibel . “The question is: are online postings such as ‘Liking’ an openly defamatory statement, ‘Commenting’ on it, or ‘Sharing’ it with others, to be regarded as ‘aiding or abetting?’ . . . Besides, it is not clear if aiding or abetting abe tting libel in in the physical world is a crime.” crime.” Then, it noted that “in the complex world of cyberspace expressions expre ssions of thoughts, when w hen will one be liable for aiding or abetting cybercrimes? Where is the venue of the crime? Except for the original author of the assailed statement, the rest (those who pressed Like, Comment and Share) are essentially knee-jerk sentiments of readers who may think  little or haphazardly of their response to the original posting. Will they be liable for aiding or abetting? And, considering the inherent impossibility of joining hundreds or thousands of responding ‘Friends’ or  ‘Followers’ in the criminal criminal charge to be filed in court, cour t, who will make a choice as to who should go to jail for the outbreak of the challenged posting? The old parameters for enforcing the traditional form of libel would be a square peg in a round hole when applied to cyberspace libel. Unless the legislature crafts a cyber libel law that takes into account its unique circumstances and culture, such law will tend to create a chilling effect on the millions that use this new medium of communication in violation of their  constitutionally-guaranteed right to freedom of expression.” What then? Well, you can penalize certain conduct but it should not sweep too broadly. If it does, it would be a lesser evil to let the conduct go unpunished than sacrifice more important freedoms. “Libel in the cyberspace can of course stain a person’s image with just one click of the mouse. Scurrilous statements can spread and travel fast across the globe like bad ne ws. Moreover, Mo reover, cyberlibel cyberlibel often goes hand in hand with cyberbullying that oppresses the victim, his relatives, and friends, evoking from mild to disastrous reactions. Still, a governmental purpose, which seeks to regulate the use of this cyberspace communicati communication on technology to pro tect a person’s reputation reputat ion and peace of mind, mind, cannot adopt means that will unnecessarily and broadly sweep, invading the area of protected freedoms. If such means are adopted, self-inhibition borne of fear of what sinister predicaments await internet users will suppress otherwise ot herwise robust discussion d iscussion of public public issues. Democracy Democ racy will will be threatened and with it, all liberties. liberties. Penal laws should provide reasonably r easonably clear guidelines for for law enforcement offi o fficials cials and triers of facts facts to t o prevent arbitrary and discriminatory enforcement. The terms ‘aiding or abetting’ constitute broad sweep that generates generat es chillin chilling g effect effect on those tho se who express themselves through cyberspace po sts, comments, co mments, and other  messages. Hence, Section 5 of the cybercrime law that punishes ‘aiding or abetting’ libel on the cyberspace is a nullity.”  Facial Challenge and Challenge and As  As Applied Challenges. Challenges. “When a penal statute statute encroaches upon the freedom of speech, a facial challenge grounded on the void-for-vagueness doctrine is acceptable.” On the other  hand, “[i]n an ‘as applied’ challenge, the petitioner who claims a violation of his constitutional right can raise any constitutional ground – absence of due process, lack of fair notice, lack of ascertainable standards, overbreadth, or vagueness. vagueness. Here, one can challenge challenge the constitutionality constitutionality of a statute stat ute only o nly if  if  he asserts a violation of his own rights. It prohibits one from assailing the constitutionality of the statute JURISTS REVIEW CENTER  based solely solely on the violation violation of the rights rights of third persons not not before the court . This rule is is also also known as the prohibition against third-party standing. But this rule admits of exceptions. A petitioner may for  instance mount a ‘facial’ challenge to the constitutionality of a statute even if he claims no violation of  BAR REVIEW 2017 his own rights under the assailed statute where it involves free speech on grounds of overbreadth or  vagueness of the statute. statute . The rational rat ionalee for thi t hiss exception is to counter the ‘chilli ‘chilling ng effect’ on protected protect ed speech that comes from statutes violating violating free speech. A person who do es not know kno w whether his speech constitutes constitu tes a crime c rime under an overbro overbroad ad or o r vague law may simpl simply y restrain himself himself from from speaking speak ing in in order  orde r  to avoid a void being charged of a crime. The overbroad overbro ad or vague vag ue law thus chil c hills ls him him into into silence.” And, relating vis-à-vis Liberties  An medium Arsenal Armscation. It it to the t he internet, “theAcyberspace c Library yberspaceOf is an incomparable, incomparable, pervasive per vasive m edium ofOf communication. communi I t is inevitable inevitable R B G R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 42 of 99 that any government threat of punishment regarding certain uses of the medium creates a chilling effect on the constitutionally-protected freedom of expression of the great masses that use it. In this case, the  particularly complex web of interaction on social media websites would give law enforcers such latitude that they could arbitrarily or selectively enforce the law. Who is to decide when to prosecute persons who  boost the visibility of a posting on the internet by liking it? Netizens are not given ‘fair notice’ or warning as to what is criminal conduct and what is lawful conduct. When a case is filed, how will the court ascertain whether or not one netizen’s comment aided and abetted a cybercrime while another comment did not? Of course, if the ‘Comment’ does not merely react to the original posting but creates an altogether new defamatory story against Armand like “He beats his wife and children,” then that should  be considered an original posting published on the internet. Both the penal code and the cybercrime law clearly punish authors of defamatory publications. Make no mistake, libel destroys reputations that society values. Allowed to cascade in the internet, it will destroy relationships and, under certain circumstances, will generate enmity and tension between social or economic groups, races, or religions, exacerbating existing tension in their relationships.”  Aiding or Abetting Commission of Child Pornography. “Section 5 with respect to Section 4(c)(4) is unconstitutional. Its vagueness raises apprehension on the part of internet users because of its obvious chilling effect on the freedom of expression, especially since the crime of aiding or abetting ensnares all the actors in the cyberspace front in a fuzzy way. What is more, as the petitioners point out, formal crimes such as libel are not punishable unless consummated. In the absence of legislation tracing the interaction of netizens and their level of responsibility such as in other countries, Section 5, in relation to Section 4(c)(4) on Libel, Section 4(c)(3) on Unsolicited Commercial Communications, and Section 4(c)(2) on Child Pornography, cannot stand scrutiny.”  Aiding or Abetting Other Cybercrimes. “[T]he crime of aiding or abetting the commission of  cybercrimes under Section 5 should be permitted to apply to Section 4(a)(1) on Illegal Access, Section 4(a)(2) on Illegal Interception, Section 4(a)(3) on Data Interference, Section 4(a)(4) on System Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)(6) on Cyber-squatting, Section 4(b)(1) on Computer-related Forgery, Section 4(b)(2) on Computer-related Fraud, Sect ion 4(b)(3) on Computerrelated Identity Theft, and Section 4(c)(1) o n Cybersex. None of these offenses borders on the exercise of the freedom of expression.”  Double Jeopardy. Section 7 of the law provides that a prosecution under it shall be without prejudice to any liability for violation of any provision of the Revised Penal Code, as amended, or special laws. “With the exception of the crimes of online libel and online child pornography, the Court would rather  leave the determination of the correct application of Section 7 to actual cases. Online libel is different. There should be no question that if the published material on print, said to be libelous, is again posted JURISTS REVIEW CENTER online or vice versa, that identical material cannot be the subject of two separate libels. The two offenses, one a violation of Article 353 of the Revised Penal Code and the other a violation of Section 4(c)(4) of  R.A. 10175 involve essentially the same elements and are in fact one and the same offense. Indeed, the BSection AR REVIEW OSG itself claims that online libel under 4(c)(4) is2017 not a new crime but is one already punished under Article 353. Section 4(c)(4) merely establishes the computer system as another means of   publication. Charging the offender under both laws would be a blatant violation of the proscription against double jeopardy. The same is true with child pornography committed online. Section 4(c)(2) merely expands the ACPA’s scope so as to include identical activities in cyberspace. As previously discussed, ACPA’s definition of child pornography in fact already covers the use of ‘electronic, A Library Of Liberties vis-à-vis An Arsenal Of Arms mechanical, digital, optical, magnetic or any other means.’ Thus, charging the offender under both R B G R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 43 of 99 Section 4(c)(2) and ACPA would likewise be tantamount to a violation of the constitutional prohibition against double jeopardy.”  Real-Time Collection of Traffic Data. Section 12 authorized law enforcement authorities, “with due cause,” to collect or record by technical or electronic means traffic data12 in real-time associated with specified communications transmitted by means of a computer system. “The first question is whether or  not Section 12 has a proper governmental purpose since a law may require the disclosure of matters normally considered private but then only upon showing that such requirement has a rational relation to the purpose of the law, that there is a compelling State interest behind the law, and that the provision itself is narrowly drawn. In assessing regulations affecting privacy rights, courts should balance the legitimate concerns of the State against constitutional guarantees. Undoubtedly, the State has a compelling interest in enacting the cybercrime law for there is a need to put order to the tremendous activities in cyberspace for public good. To do this, it is within the realm of reason that the government should be able to monitor traffic data to enhance its ability to combat all sorts of cybercrimes.” And, given reality presently, the Court noted:“In this digital age, the wicked can commit cybercrimes from virtually anywhere: from internet cafés, from kindred places that provide free internet services, and from unregistered mobile internet connectors. Criminals using cellphones under pre-paid arrangements and with unregistered SIM cards do not have listed addresses and can neither be located nor identified. There are many ways the cyber criminals can quickly erase their tracks. Those who peddle child pornography could use relays of computers to mislead law enforcement authorities regarding their places of operations. Evidently, it is only realtime traffic data collection or recording and a subsequent recourse to court-issued search and seizure warrant that can succeed in ferreting them out.” However with regard to that dangerous authorization based on “due cause,” “the Court cannot draw this meaning since Section 12 does not even bother to relate the collection of data to the probable commission of a particular crime. It  just says, ‘with due cause,’ thus justifying a general gathering of data. It is akin to the use of a general search warrant that the Constitution prohibits. Due cause is also not descriptive of the purpose for which data collection will be used.” In short, “the authority that Section 12 gives law enforcement agencies is too sweeping and lacks restraint. While it says that traffic data collection should not disclose identities or content data, such restraint is but an illusion. Admittedly, nothing can prevent law enforcement agencies holding these data in their hands from looking into the identity of their sender or receiver and what the data contains. This will unnecessarily expose the citizenry to leaked information or, worse, to extortion from certain bad elements in these agencies.”  Disclosure of Computer Data. “[I]t is well-settled that t he power to issue subpoenas is not exclusively a judicial function. Executive agencies have the power to issue subpoena as an adjunct of their  investigatory powers. Besides, what Section 14 envisions is merely the enforcement of a duly issued court warrant, a function usually lodged in the hands of law C enforcers JURISTS REVIEW ENTERto enable them to carry out their  executive functions. The prescribed procedure for disclosure would not constitute an unlawful search or  seizure nor would it violate the privacy of communications and correspondence. Disclosure can be made only after judicial intervention.” BAR REVIEW 2017 Take-Down Clause. Section 19 authorizes the Department of Justice to issue an order to restrict or  12 R B G  “Traffic data refer only to the communication’s origin, destination, route, time, date, s ize, duration, or type of underlying service,  but not content, nor ident ities.” The Court also noted that in regard to traffic data, “[t]ransmitting communications is akin to putting a letter in an envelope properly AanLibrary Liberties Arsenal OfnoArms addressed, sealing it closed, d sending itOf through the postal svis-à-vis ervice. Those An who post letters have expectations that no one will read the information appearing outside the envelope.” R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 44 of 99  block access to computer data when computer data is prima facie found to be in violation of the  provisions of the law. “Here, the Government, in effect, seizes and places the computer data under its control and disposition without a warrant. The Department of Justice order cannot substitute for judicial search warrant. The content of the computer data can also constitute speech. In such a case, Section 19 operates as a restriction on the freedom of expression over cyberspace. Certainly not all forms of speech are protected. Legislature may, within constitutional bounds, declare certain kinds of expression as illegal. But for an executive officer to seize content alleged to be unprotected without any judicial warrant, it is not enough for him to be of the opinion that such content violates some law, for to do so would make him judge, jury, and executioner all rolled into one. Not only does Section 19 preclude any judicial intervention, but it also disregards jurisprudential guidelines established to determine the validity of  restrictions on speech. Restraints on free speech are generally evaluated on one of or a combination of  three tests: the dangerous tendency doctrine, the balancing of interest test, and the clear and present danger rule. Section 19, however, merely requires that the data to be blocked be found prima facie in violation of any provision of the cybercrime law. Taking Section 6 into consideration, this can actually  be made to apply in relation to any penal provision. It does not take into consideration any of the three tests mentioned above. The Court is therefore compelled to strike down Section 19 for being violative of the constitutional guarantees to freedom of expression and against unreasonable searches and seizures.” 2. GMA Network, Inc. v. Commission on Elections , 734 SCRA 88 (2014) In this case, what was questioned was the reso lution of the Commission on Elections which computed the allowable campaign air time limit in radio and television on a nationwide total aggregate basis instead of the previous per station basis – 180 minutes for radio advertisements and 120 minutes for television. There was also a question about the requirement allowing for a right to reply. The Court held that the new manner of determining airtime limit “is unreasonable and arbitrary as it unduly restricts and constrains the ability of candidates and political parties to reach out and communicate with the people. Here, the adverted reason for imposing the ‘aggregate-based’ airtime limits – leveling the playing field – does not constitute a compelling state interest which would justify such a substantial restriction on the freedom of candidates and political parties to communicate their ideas, philosophies,  platforms and programs of government. And, this is specially so in the absence of a clear-cut basis for  the imposition of such a prohibitive measure. In this particular instance, what the COMELEC has done is analogous to letting a bird fly after one has clipped its wings. It is also particularly unreasonable and whimsical to adopt the aggregate-based time limits on broadcast time when we consider that the Philippines is not only composed of so many islands. There are also a lot of languages and dialects spoken among the citizens across the country. Accordingly, for a national candidate to really reach out to as JURISTS REVIEW CENTERthat he convey his message through many of the electorates as possible, then it might also be necessary his advertisements in languages and dialects that the people may more readily understand and relate to. To add all of these airtimes in different dialects would greatly hamper the ability of such candidate to REVIEW 2017In short, “drastically curtailing the ability express himself – a form of suppressionB ofAR his political speech.” of a candidate to effectively reach out to the electorate would unjustifiably curtail his freedom to speak  as a means of connecting with the people.” R B G How about the right to reply provision? “The Constitution itself provides as part of the means to ensure free, orderly, honest, fair and credible elections, a task addressed to the COMELEC to provide vis-à-vis A Library Of Liberties  AnitArsenal Of Arms for a right to reply. Given that express constitutional mandate, could be seen that the Fundamental Law R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 45 of 99 itself has weighed in on the balance to be struck between the freedom of the press and the right to reply. Accordingly, one is not merely to see the equation as purely between the press and the right to reply. Instead, the constitutionally mandated desiderata of free, orderly, honest, peaceful, and credible elections would necessarily have to be factored in trying to see where the balance lies between press and the demands of a right-to-reply.” Accordingly, “the traditional notion of preferring speech and the press over  so many other values of society do not readily lend itself to this particular matter. Instead, additional weight should be accorded on the constitutional directive to afford a right to reply. If there was no such mandate, then the submissions of petitioners may more easily commend themselves for this Court’s acceptance. But as noted above, this is not the case. Their arguments simplistically provide minimal importance to that constitutional command to the point of marginalizing its importance in the equation. In fine, when it comes to election and the exercise of freedom of speech, of expression and of the press, the latter must be properly viewed in context as being necessarily made to accommodate the imperatives of fairness by giving teeth and substance to the right to reply requirement.” 3.  Diocese of Bacolod v. Commission on Elections , 747 SCRA 1 (2015) As part of the Catholic Church’s opposition to the Reproductive Health Law, the petitioners came up with a tarpaulin measuring 6’ by 10’. The said tarpaulin had the heading “Conscience Vote,” identifying candidates who voted for (Team Patay) or against the law (Team Buhay). The COMELEC advised the petitioners to pull down the same since it violated the limitations set for campaign materials, namely, that it should be no bigger than 2’ by 3.’ The Church refused and brought up t his case challenging the validity of the COMELEC directive. As a preliminary matter, could the opinion of the COMELEC be assailed on freedom of expression grounds since it is not itself a statute and the constitutional provision refers to a law? “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.” With regard to the main issue, the Court discussed: “The right to freedom of expression, thus, applies to the entire continuum of speech from utterances made to conduct enacted, and even to inaction as a symbolic manner of communication.” And, with regard to political speech, it declared: “Speech with  political consequences is at the core of the freedom of expression and must be protected by this court.” The petitioners standing as non-candidates was also highlighted. “There is no reason for the state to minimize the right of non-candidate petitioners to post the tarpaulin in their private property. The size of the tarpaulin does not affect anyone else’s constitutional rights.” Moreover, “[t]he guarantee of  freedom of expression to individuals without any relationship to any political candidate should not be held hostage by the possibility of abuse by those seeking to be elected.” Further, “[r]egulation of speech in the JURISTS Rwho CENTER EVIEW context of electoral campaigns made by persons are not candidates or who do not speak as members of a political party which are, taken as a whole, principally advocacies of a social issue that the public must consider during elections is unconstitutional.” Are they then completely beyond regulation? No. AR REVIEW 2017 “ Regulation of election paraphernaliaBwill still be constitutionally valid if it reaches into speech of   persons who are not candidates or who do not speak as members of a political party if they are not  candidates, only if what is regulated is declarative speech that, taken as a whole, has for its principal  object the endorsement of a candidate only. The regulation (a) should be provided by law, (b) reasonable, (c) narrowly tailored to meet the objective of enhancing the opportunity of all candidates to be heard and considering the primary of the guarantee of free expression, and (d) demonstrably the A Library Of Liberties vis-à-vis An Arsenal Of Arms least restrictive means to achieve that object. The regulation must only be with respect to the time, place, R B G R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 46 of 99 and manner of the rendition of the message. In no situation may the speech be prohibited or censored  on the basis of its content. For this purpose, it will not matter whether the speech is made with or on  private property.” And, with regard to form and substance, the Court declared: “We reiterate that the regulation involved at bar is content-base. The tarpaulin is not easily divorced from the size of the medium.” In other  words, “[t]he form of expression is just as important as the message itself.” The Court also saw the tarpaulins as a form of satire of political parties, something that is similarly  protected under the freedom of speech. Likewise, in so far as there are others who may not conform to the what the majority holds, “[a] becoming humility on the part of any human institution no matter how endowed with the secular ability to decide legal controversies with finality entails that we are not the keepers of all wisdom. Humanity’s lack of omniscience, even acting collectively, provides space for the weakest dissent. Tolerance has always been a libertarian virtue whose version is embedded in our Bill of  Rights. There are occasional heretics of yesterday that have become our visionaries. Heterodoxies have always given as pause.” On expression and the use of one’s own private property, the Court pointed out that “[f]reedom of  expression can be intimately related with the right to property. There may be no expression when there is no place where the expression may be made. COMELEC’s infringement upon petitioners’ property rights as in the present case also reaches out to infringement on their fundamental right to speech.” In fine, “the act of respondents in seeking to restrain petitioners from posting the tarpaulin in their own  private property is an impermissible encroachments on the right to property.” 4. 1-United Transport Koalisyon (1-Utak) v. Commission on Elections , 755 SCRA 441 (2015) What is in issue here is the ban on the posting of campaign materials in public transports and private transport terminals. The Court held that there was an invalid content-netural regulation – it is not within the power of the COMELEC since the restriction is greater than necessary to advance government interest. Moreover, regulation of franchise does not extend to regulation of other aspects of private Ownership. The Court also had occasion to discuss the Captive Audience Doctrine. That doctrine “states that when a listener cannot, as a practical matter, escape from intrusive speech, the speech can be restricted. The ‘captive-audience’ doctrine recognizes that a listener has a right not to be exposed to an unwanted message in circumstances in which the communication cannot be avoided. A regulation based on the captive-audience doctrine is in the guise of censorship, which undertakes selectively to shield the public from some kinds of speech on the ground that they are more offensive than others. Such selective restrictions have been upheld onlyJwhen the speaker intrudes on the privacy of the home or the degree REVIEW CENTER URISTS of captivity makes it either impossible or impractical for the unwilling viewer or auditor to avoid exposure.” BAR REVIEW 5.  Pleasant Grove City v. Summum , 555 U.S. 460 2017 (2009) The U.S. Supreme Court presented the gist of the case in this way: “This case presents the question whether the Free Speech Clause of the First Amendment entitles a private group to insist that a municipality permit it to place a permanent monument in a city park in which other donated monuments were previously erected. The Court of Appeals held that the municipality was required to accept the vis-à-vis Library OfisLiberties  An Arsenal Of Arms monument because A a public park a traditional public forum. We conclude, however, that although a R B G R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 47 of 99  park is a traditional public forum for speeches and other transitory expressive acts, the display of a  permanent monument in a public park is not a form of expression to which forum analysis applies. Instead, the placement of a permanent monument in a public par k is best viewed as a form of government speech and is therefore not subject to scrutiny under the Free Speech Clause.” With regard to the application of the freedom of speech to the government itself, the Court said: “The Free Speech Clause restricts government regulation of private speech; it does not regulate government speech. . . . (‘[T]he Government's own speech . . . is exempt from First Amendment scrutiny’) . . . . (‘Government is not restrained by the First Amendment from controlling its own expression’).” The  government speech doctrine  was reiterated in Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S. ___ (No. 14-144, 18 June 2015). 6.  Integrated Bar of the Philippines v. Atienza , 613 SCRA 518 (2010) In Bayan v. Ermita, 488 SCRA 226 (2006), the Court spoke of the right to peaceable assembly in this way: “The first point to mark is that the right to peaceably assemble and petition for redress of  grievances is, together with freedom of speech, of expression, and of the press, a right that enjoys  primacy in the realm of constitutional protection. For these rights constitute the very basis of a functional democratic polity, without which all the other rights would be meaningless and unprotected.” At the same time, though, it recognized the validity of the law – Public Assembly Act of 1985 (B.P. 880) – providing for guidelines in the conduct of rallies and other mass actions. B.P. 880 provides a restriction that simply regulates the time, place and manner of the assemblies – it does not impose an absolute ban on public assemblies. This set of regulations included the need to obtain a permit from the local chief executive, which may only be denied on ground of clear and present danger to public order, public safety, public convenience, public morals or public health. In Integrated Bar of the Philippines, the issue is whether the mayor could unilaterally specify a place other than the one indicated by the applicants for the public assembly? No, he cannot without an acceptable basis. Here, the Court ruled that the mayor, in modifying the permit outright, gravely abused his discretion, specially so as he did not immediately inform the applicants 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. “The opportunity to be heard precedes the action on the permit, since the applicant may directly go to court after an unfavorable action on the permit. Respondent failed to indicate how he had arrived at modifying the terms of the permit against the standard of a clear and present danger  test which, it bears repeating, is an indispensable condition to such modification.” Related to the foregoing is the holding of the Court in David v. Macapagal-Arroyo, 489 SCRA 160 (2006), that “wholesale cancellation of all permits to rally is a blatant disregard of the principle that JURISTS REVIEW CENTER ‘freedom of assembly is not to be limited, much less denied, except on a showing of a clear and   present danger  of a substantive evil that the State has a right to prevent .’ Tolerance is the rule and limitation is the exception. . . . With theB blanket of permits, the distinction between protected AR Rrevocation EVIEW 2017 and unprotected assemblies was eliminated.” 7.  Re: Letter of the UP Law Faculty Entitled “Restoring Integrity: A Statement by the Faculty of the University of the Philippines College of Law on the Allegations of Plagiarism and   Misrepresentation in the Supreme Court,”  644 SCRA 543 (2011) R B G vis-à-vis A aLibrary Ofa College Liberties  An Arms of expression and May members of faculty of of Law invoke theArsenal guaranteeOf of freedom R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 48 of 99 academic freedom to shield themselves from any possible disciplinary proceedings against them for having come up with a public statement which the Court t ook to be disrespectful and contemptuous? The Court said no, saying that the legal reasoning used in the past by this Court to rule that freedom of expression is not a defense in administrative cases against lawyers for using intemperate speech in open court or in court submissions can similarly be applied to invocation of academic freedom. The Court also pointed out that a reading of the Show Cause Resolution will plainly show that it was neither the fact that respondents had criticized a decision of the Court nor that they had charged one of its members of   plagiarism that motivated the said Resolution – it was the manner of the criticism and the contumacious language by which respondents, who are not parties nor counsels in a pending case have expressed their  opinion in favor of the petitioners in said pending case. The right to criticize the courts and judicial officers must be balanced against the equally primordial concern that the independence of the Judiciary  be protected from due influence or interference. The Court further reminded the respondents and everybody else that freedom of expression is not an absolute – there are other societal values that press for recognition, and one such societal value that  presses for recognition in the case at bar is the threat to judicial independence and the orderly administration of justice that immoderate, reckless and unfair attacks on judicial decisions and institutions  pose. The constitutional right to freedom of expression of members of the Bar may be circumscribed by their ethical duties as lawyers to give due respect to the courts and to uphold the public’s faith in the legal  profession and the justice system. And, with higher standing in the community, as an educator, for instance, comes greater  responsibility, the Court declaring that the reason that freedom of expression may be so delimited in the case of lawyers applies with greater force to the academic freedom of law professors. When the criticism comes from persons outside the profession who may not have a full grasp of legal issues or from individuals whose personal or other interests in making the criticism are obvious, the Court may perhaps tolerate or ignore them, but when law professors are the ones who appear to have lost sight of the  boundaries of fair commentary and worse, would justify the same as an exercise of civil liberties, the Court cannot remain silent for such silence would have a grave implication on legal education in the country. The Court failed to see how it can ennoble the profession if it allowed respondents to send a signal to their students that the only way to effectively plead their cases and persuade others to their point of view is to be offensive – the mark of the true intellectual is one who can express his opinions logically and soberly without resort to exaggerated rhetoric and unproductive recriminations. Further, it was pointed out that lawyers, when they teach law, are considered engaged in the practice of law – their actions as law professors must be measured against the same canons of professional responsibility applicable to acts of members of the Bar as the fact of their being law professors is REVIEW URISTS inextricably entwined with the factJthat they are lawyers. CENTER 8. Fortun v. Quinsayas , 690 SCRA 623 (2013) BARand REVIEW 2017 Disbarment proceedings are confidential premature publication of such may subject the offender  to sanctions. Here, there was a disbarment complaint filed against the lawyer for the principal accused in the Maguindanao Massacre, which fact was then reported on-line13 and in broadcast. The lawyer  against whom the complaint was filed sought to have several persons allegedly responsible for the R 13 B G   Noteworthy is what the court said about internet postings. “GMA Network did not deny that it posted the details of the Library Of Liberties  An Arsenal Of Arms disbarment complaint on A its website. It merely said that it has vis-à-vis no publication where the article could be printed and that the news was not televised. Online posting, however, is already publication considering that it was done on GMA Network’s online news website.” R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 49 of 99 dissemination declared in direct contempt. The Court declared: “As a general rule, disbarment proceedings are confidential in nature until their  final resolution and the final decision of this Court. In this case, however, the filing of a disbarment complaint against petitioner is itself a matter of public concern considering that it arose from the Maguindanao Massacre case. The interest of the public is not on petitioner himself but primarily on his involvement and participation as defense counsel in the Maguindanao Massacre case. Indeed, the allegations in the disbarment complaint relate to petitioners supposed actions involving the Maguindanao Massacre case. The Maguindanao Massacre is a very high-profile case. Of the 57 victims of the massacre, 30 were journalists. It is understandable that any matter related to the Maguindanao Massacre is considered a matter of public interest and that the personalities involved, including petitioner, are considered as public figure.” In other words, “[s]ince the disbarment complaint is a matter of public interest, legitimate media had a right to publish such fact under freedom of the press. The Court also reco gnizes that respondent media groups and personalities merely acted on a news lead they received when they reported the filing of the disbarment complaint.” Further, the Court said that “The distribution  by Atty. Quinsayas to the media of the disbarment c omplaint, by itself, is not sufficient to absolve the media from responsibility for violating the confidentiality rule. However, since petitioner is a public figure or has become a public figure because he is representing a matter of public concern, and because the event itself that led to the filing of the disbarment case against petitioner is a matter of public concern, the media has the right to report the filing of the disbarment case as legitimate news. It would have been different if the disbarment case against petitioner was about a private matter as the media would then be  bound to respect the confidentiality provision of disbarment proceedings under Section 18, Rule 139-B of the Rules of Court.” In fine, “[i]f there is a legitimate public interest, media is not prohibited from making a fair, true, and accurate news report of a disbarment complaint. In the absence of a legitimate public interest in a disbarment complaint, members of the media must preserve the confidentiality of disbarment proceedings during its pendency. Disciplinary proceedings against lawyers must still remain private and confidential until their final determination.” H. FREEDOM OF R ELIGION A man’s relationship with his idea of a deity or a Supreme Being is something which the State is not supposed to interfere with. Nor is it really competent to deal with it. Like matters of thought, concerns about conscience and belief are a man’s own business. In any case, it is hardly possible for a worldly institution that the government is to try to interest itself in spiritual matters. Religion is a matter of faith JURISTS REVIEW CENTER and belief, not of scientific fact and verification. And, getting into the act on religious matters could hardly be beneficial to anyone, either for the government itself or for any particular religion. Lessons from the past have made any such unions disastrous and counterproductive. BAR REVIEW 2017 Freedom of religion guarantees complete freedom to believe without any interference from the State. The right to act, or to translate that belief into action, however, may be subject to certain regulations consistent with the mandate of the State to promote the welfare of everyone and to provide for an orderly society. Nevertheless, this right on the part of the government is not to be lightly assumed, as it must have to be weighed carefully with any religion-grounded freedom or interest that may be interfered with. R A Library Of Liberties B G vis-à-vis An Arsenal Of Arms In Estrada v. Escritor , 408 SCRA 1 (2003), the Court noted that in the Philippines we adopt a policy R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 50 of 99 of benevolent neutrality  which allows for accommodation of religious practices and morality, and that an act or practice grounded on religious freedom may only be overcome by a compelling state interest . “ Benevolent neutrality recognizes that government must pursue its secular goals and interests but at the same time strives to uphold religious liberty to the greatest extent possible within flexible constitutional limits. Thus, although the morality contemplated by laws is secular, benevolent neutrality could allow for accommodation of morality based on religion, provided it does not offend compelling state interests.” In the final decision on the case, Estrada v. Escritor , 492 SCRA 1 (2006), the Court then went on to allow a court interpreter to continue with her conjugal arrangement with a married man not her husband, since the same was sanctioned by her religion and there was no compelling state interest that would have warranted overriding her religion-grounded practice – ““we find that in this particular case and under these distinct circumstances , respondent Escritor’s conjugal arrangement cannot be penalized as she has made out a case for exemption from the law based on her fundamental right to freedom of religion.” In Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, 565 U.S. ___ (No. 10-553, 11 January 2012), the U.S. Supreme Court discussed the socalled “ministerial exception” in regard to claims of discrimination leveled against religious organizations relative to employment relationships. In this case, Perich, a teacher who was also considered a minister  (“called teacher”) in a religious institution, developed narcolepsy (symptoms included sudden and deep sleeps from which she could not be roused). She was placed on disability leave, then after some time she notified the school that she would be able to report to work but she was informed that the school had already contracted with a lay teacher to fill her position for the remainder of the school year. The congregation subsequently offered to pay a portion of her health insurance premiums in exchange for her  resignation as a called teacher. She refused to resign and later presented herself at the school and refused to leave until she received written documentation that she had repo rted to work. The principal later called Perich and told her that she would likely be fired. Her employment was subsequently terminated on grounds which included her “insubordination and disruptive behavior,” as well as the damage she had done to her “working relationship” with the school by “threatening to take legal action.” She then filed a charge with the Equal Employment Opportunity Commission, claiming that her employment had been terminated in violation of the Americans with Disabilities Act. The EEOC brought suit against Hosanna-Tabor, alleging that Perich had been fired in retaliation for threatening to file an ADA lawsuit. Perich intervened in the litigation. Invoking what is known as the “ministerial exception,” Hosanna-Tabor  argued that the suit was barred by the First Amendment because the claims concerned the employment relationship between a religious institution and one of its ministers. The Court agreed. It held that since the passage of Title VII of the Civil Rights Act of 1964 and other  employment discrimination laws, the Courts of Appeals have uniformly recognized the existence of a “ministerial exception,” grounded J inURISTS the First Amendment, precludes application of such legislation REVIEW Cthat ENTER to claims concerning the employment relationship between a religious institution and its ministers. It explained that “[r]equiring a church to accept or retain an unwanted minister, or punishing a church for  failing to do so, intrudes upon more than a mere employment BAR REVIEW 2017decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will  personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.” vis-à-vis A First Library Of Liberties  An Arsenal Of Arms Given the text of the Amendment itself, which gives special solicitude to the rights of religious R B G R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 51 of 99 organizations, the Court said that it “cannot accept the remarkable view that the Religion Clauses have nothing to say about a religious organization’s freedom to select its own ministers.” The Court further  stated that the “purpose of the exception is not to safeguard a church’s decision to fire a minister only when it is made for a religious reason. The exception instead ensures that the authority to select and control who will minister to the faithful – a matter ‘strictly ecclesiastical,’ . . . – is the church’s alone.” The Court concluded: “The interest of society in the enforcement of employment discrimination statutes is undoubtedly important. But so too is the interest of religious groups in choosing who will  preach their beliefs, teach their faith, and carry out their mission. When a minister who has been fired sues her church alleging that her termination was discriminatory, the First Amendment has struck the balance for us. The church must be free to choose those who will guide it on its way.” 1.  Re: Letter of Tony Q. Valenciano, re: Holding of Religious Rituals at the Halls of Justice  Building in Quezon City, – SCRA – (A.M. No. 10-4-19-SC, 7 March 2017) Here, in response to an issue about the use of the basement of the Quezon City Hall of Justice for the holding of Catholic masses, the Court came up with guidelines so as not to violate the separation of  church and state while allowing for the exercise of one’s religion. The Court directed the Executive Judge of Quezon City to REGULATE and CLOSELY MONITOR the holding of masses and other religious  practices within the Quezon City Hall of Justice by ensuring, among others, that: (a) it does not disturb or interrupt court proceedings; (b) it does not adversely affect and interrupt the delivery of public service; and ( c) it does not unduly inconvenience the public. In no case shall a particular part of a public building  be a permanent place for worship for the benefit of any and all religious groups. There shall also be no  permanent display of religious icons in all halls of justice in the country. In case of religious rituals, religious icons and images may be displayed but their presentation is limited only during the celebration of such activities so as not to offend the sensibilities of members of other religious denominations or the non-religious public. After any religious affair, the icons and images shall be hidden or concealed from  public view. Such disposition shall apply to all halls of justice in the country. Other churches, religious denominations or sects are entitled to the same rights, privileges, and practices in every hall of justice. In other buildings not owned or controlled by the Judiciary, the Executive Judges should coordinate and seek approval of the building owners/administrators accommodating their courts. I. FREEDOM OF MOVEMENT Man is a peripatetic being. He keeps moving about. He would likely develop bedsores and other  maladies if he simply stayed in one place. In any case, being able to move about and go to other places JURISTS REVIEW CENTER could have an informative and educative benefit, aside from the mere pleasur e of going to places and seeing sights other than the same old boring commonplace views. And, for the purpose of going places, even as he cannot run like cheetahs, flyB like or swim2017 like fishes, he might as well approximate the REVIEW ARbirds, same by building vehicles by which he can. And, talking of contemporary events, seen in light of the ease with which men and women move and fly across boundaries, the implications of trans-national illnesses might as well be factored in the calculus. With concerns about swine flu, ebola, MERS, could one just be irresponsible in his travels? R B G vis-à-vis An Of also Liberties Arsenal Of Arms Employment in A theLibrary government has its implications relative to a person’s ability to travel abroad R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 52 of 99 as he or she pleases. As a rule, certain clearances and permits have to be secured, otherwise sanctions may be imposed, specially on those in the judiciary, from judges to personnel.14 Also, just because you have a vehicle by which you can move about does not necessarily mean that you can use it anywhere and everywhere. You can not insist on using a tricycle to traverse the expressways. In this regard, the following lines from  Mirasol v. Department of Public Works and   Highways, 490 SCRA 318 (2006), may enlighten. “A toll way is not an ordinary road. As a facility designed to promote the fastest access to certain destinations, its use, operation, and maintenance require close regulation. Public interest and safety require the imposition of certain restrictions on toll ways that do not apply to ordinary roads. As a special kind of road, it is but reasonable that not all forms of  transport could use it.” J. R IGHT TO INFORMATION Corollary to the right to express oneself freely is the right to be informed on matters which concern himself and the rest of the body politic. If the people are to make meaningful contributions to their  governance, then they must know what is happening inside and outside the halls of government. Basic to this right to be informed is the necessity for laws to be published in order to be effective. It makes no sense presuming knowledge15  if the government itself has not made provisions for the dissemination of statutes and regulations which affect the people’s lives and interests. Related to  publication, the Court held in Nagkakaisang Maralita ng Sitio Masigasig, Inc. v. Military Shrine Services-Philippine Veterans Affairs Office, Department of National Defense, 697 SCRA 359 (2013), that a handwritten addendum to a Presidential Proclamation which was not included in the published version as it appeared in the Official Gazette  will not recognized – such addendum is deemed not included as valid part of the Proclamation. It must not also be lost sight of that not only laws but also administrative circulars which are not merely internal or interpretative which must also be published. And, in regard to this, the Court has also held that publication alone is not enough – there must also be filing of copies of the said circulars, rules and regulations in the Office of the National Administrative Register (ONAR) at the University of the Philippines Law Center.16 However, there is no need for filing with the ONAR when it comes to merely internal or interpretative circulars or resolutions.17 Neither does it apply to those coming from the Judicial and Bar Council since such body is not under the executive department but the judicial department.18 On the need to balance the right to know and the government’s need to keep certain things 14 JURISTS REVIEW CENTER  See, e.g., Leave Division, Office of Administrative Services-Office of the Court Administrator v. Heusdens , 662 SCRA 126 (2011), Del Rosario v. Pascua, 667 SCRA 1 (2012), and, Office of Administrative Services-Office of the Court Administrator v.  Macarine, 677 SCRA 1 (2012). 15 BAR REVIEW 2017  “Ignorance of the law excuses no one from compliance therewith.” (Art. 3 , Civil Code) 16  See, for instance, GMA Network, Inc. v. Movie and Television Review and Classification Board , 514 SCRA 191 (2007), Republic v. Pilipinas Shell Petroleum Corporation, 550 SCRA 680 (2008), and Securities and Exchange Commission v. PICOP Resources, Inc., 566 SCRA 451 (2008). 17 R B G  Board of Trustees of the Government Service Insurance System v. Velasco, 641 SCRA 372 (2011). In Cawad v. Abad , 764 SCRA 1 (2015), it was held that Implementing Rules which merely interpret and reiterate the law and which do not create a new duty or attach a new disability need not A be published filed with ONAR. vis-à-vis An Arsenal Of Arms LibrarynorOf Liberties 18 Villanueva v. Judicial and Bar Council , 755 SCRA 182 (2015) R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 53 of 99 confidential, the Court had this to say in Senate of the Philippines v. Ermita, 488 SCRA 1 (2006): “A transparent government is one of the hallmarks of a truly republican state. Even in the early history of  republican thought, however, it has been recognized that the head of government may keep certain information confidential in pursuit of the public interest. . . . History has been witness, however, to the fact that the power to withhold information lends itself to abuse, hence, the necessity to guard it zealously.” And in that spirit, it did the delicate balancing involving the invocation of executive privilege and the power of legislative inquiry , with the concomitant right of the people to know as a consequence of such hearings. It held: “Executive privilege, whether asserted against Congress, the courts, or the  public, is recognized only in relation to certain types of information of a sensitive character . While executive privilege is a constitutional concept, a claim thereof may be valid or not depending on the ground invoked to justify it and the context in which it is made. Noticeably absent is any recognition that executive officials are exempt from the duty to disclose information by the mere fact of being executive officials. Indeed, the extraordinary character of the exemptions indicates that the presumption inclines heavily against executive secrecy and in favor of disclosure. ” Then, noting the exceptional and personal nature of Executive privilege, the Court found “it essential to limit to the President the  power to invoke the privilege. She may of course authorize the Executive Secretary to invoke the  privilege on her behalf, in which case the Executive Secretary must state that the authority is ‘By order  of the President,’ which means that he personally consulted with her. The privilege being an extraordinary  power, it must be wielded only by the highest official in the executive hierarchy. In other words, the President may not authorize her subordinates to exercise such power.” How is people’s right to information implicated in all of these? “E.O 464 is concerned only with the demands of Congress for the appearance of executive officials in the hearings conducted by it, and not with the demands of citizens for information pursuant to their right to information on matters of public concern. Petitioners are not amiss in claiming, however, that what is involved in the present controversy is not merely the legislative power of inquiry, but the right of the people to information. There are, it  bears noting, clear distinctions between the right of Congress to information which underlies the power  of inquiry and the right of the people to information on matters of public concern. . . . To the extent that investigations in aid of legislation are generally conducted in public, however, any executive issuance tending to unduly limit disclosures of information in such investigations necessarily deprives the people of information which, being presumed to be in aid of legislation, is presumed to be a matter of public concern. The citizens are thereby denied access to information which they can use in formulating their  own opinions on the matter before Congress – opinions which they can then communicate to their  representatives and other government officials through the various legal means allowed by their freedom of expression.”19 Moreover, even as “E.O. 464 applies only R to EVIEW officials of executive branch, it does not follow that JURISTS Cthe ENTER the same is exempt from the need for publication.” Since the subject matter of said executive issuance is a matter of public interest which any member of the body politic may question in the political forums or, if he is a proper party, even in courts of justice, “logic dictates that the challenged order must be BAR REVIEW 2017 covered by the publication requirement. As explained above, E.O. 464 has a direct effect on the right of  19  In Sabio v. Gordon, 504 SCRA 704 (2006), the Court said: R B G “[T]he conduct of inquiries in aid of legislation is not only intended to benefit Congress but also the citizenry. The people are equally concerned with this proceeding and have the right to participate therein in order to protect their interests. The extent of their   participation will largely depend on the information gathered and made known to them. In other words, the right to in formation really vis-à-vis Aconstitutional Library Of Liberties  Anhonesty Arsenal Of Arms goes hand-in-hand with the policies of full public disclosure and in the public service. It is meant to enhance the widening role of the citizenry in governmental decision-making as well as in checking abuse in the government.” R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 54 of 99 the people to information on matters of public concern. It is, therefore, a matter of public interest which members of the body politic may question before this Court. Due process thus requires that the people should have been apprised of this issuance before it was implemented.” With regard to judicial records, Hilado v. Reyes, 496 SCRA 282 (2006), teaches us that the term “judicial record” or “court record” does not only refer to the orders, judgment or verdict of the courts  – it comprises the official collection of all papers, exhibits and pleadings filed by the parties, all processes issued and returns made thereon, appearances, and word-for-word testimony which took place during the trial and which are in the possession, custody, or control of the judiciary or of the courts for purposes of rendering court decisions. The interest of the public hinges on its right to transparency in the administration of justice, to the end that it will serve to enhance the basic fairness of the judicial  proceedings, safeguard the integrity of the fact-finding process, and foster an informed public discussion of public affairs. Accordingly, justice requires that all should have free access to the opinions of judges and justices, and it would be against sound public policy to prevent, suppress or keep the earliest knowledge of these from the public. In fine, once a particular information has been determined to be of   public concern, the accessory right of access to official records, including judicial records, becomes available. However, there is a difference, between court orders or judgments and the parties’ pleadings and whatever may go with the same. Unlike court orders and decisions, pleadings and other documents filed by parties to a case need not be matters of public concern or interest. Information regarding the financial standing of a person at the time of his death and the manner by which his private estate may ultimately be settled is not a matter of general, public concern or one in which a citizen or the public has an interest by which its legal rights or liabilities may be affected. If the information sought is not a matter  of public concern or interest, denial of access thereto does not violate the constitutional right to information. Then, on privacy concerns, People v. Cabalquinto, 502 SCRA 419 (2006), comes to the fore. If one were to wonder why AAA is so familiar a rape victim, it is because of the policy adopted by the Court in Cabalquinto. It is normally the case that the names of the parties involved in a case, from the plaintiffs to defendants, to accused and the victims, are identified in the reports of cases which are disseminated for everyone to read. In Cabalquinto the Court adopted a new policy in regard to crimes involving violence to women and their children. Taking into consideration the need to maintain the confidentiality of information in cases involving violence against women and their children, the Court, starting with said case, withheld the real name of the victim-survivor and used fictitious initials instead to represent her. The Court further declared that, “[l]ikewise, the personal circumstances of the victims-survivors or any other  information tending to establish or compromise their identities, as well those of their immediate family or household members, shall not be disclosed.” Subsequently, in People v. Rentoria, 533 SCRA 708 (2007), the Court also decreed thatJthe exact addresses of the victims should be deleted. Thus, if you now REVIEW CENTER URISTS read initials that sound like battery sizes or advertisements comparing a named brand with their  competitors, you would understand why. BAR REVIEW 2017has held: “We are prepared to concede With regard to professional board examinations, the Court that national board examinations such as the CPA Board Exams are matters of public concern. The  populace in general, and the examinees in particular, would understandably be interested in the fair and competent administration of these exams in order to ensure that only those qualified are admitted into the accounting profession. And as with all matters pedagogical, these examinations could be not merely quantitative means of assessment, but also means to further improve the teaching and learning of the art A Library Of Liberties vis-à-vis An Arsenal Of Arms and science of accounting. On the other hand, we do realize that there may be valid reasons to limit R B G R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 55 of 99 access to the Examination Papers in order to properly administer the exam. More than the mere convenience of the examiner, it may well be that there exist inherent difficulties in the preparation, generation, encoding, administration, and checking of these multiple choice exams that require that the questions and answers remain confidential for a limited duration.”20 1.  In Re: Production of Court Records and Documents and the Attendance of Court officials and Employees as Witnesses Under the Subpoenas of February 10, 2012 and the Various  Letters for the Impeachment Prosecution Panel dated January 19 and 25, 2012 , 14 February 2012 (http://sc.judiciary.gov.ph/jurisprudence/2012/february2012/notice.pdf) Relative to the presentation of evidence against the Chief Justice in his impeachment trial, requests were made with the Supreme Court for the examination and production of certain documents and records, as well as the testimony of Justices, officials and employees of the Court, including the issuance of certified true copies of the rollos and the Agenda and Minutes of the Deliberations relative to certain cases. Here, the Court had to approach the matter from perspective of the principle of separation of powers and the concomitant independence of the judiciary. “From the constitutional perspective, a necessary starting vantage point in this consideration is the principle of separation of powers   through the recognition of the independence of each branch of government   and through the protection of   privileged and confidential documents and processes, as recognized by law, by the rules and by Court  policies.” Then, these considerations taken with the principle of comity  – the practice of voluntarily observing inter-departmental courtesy   in undertaking their assigned constitutional duties for the harmonious working of government – the Court proceeded to state that “[i]nter-departmental courtesy demands that the highest levels of each department be exempt from the compulsory processes of  the other departments on matters related to the functions and duties of their office. ” With the foregoing backdrop, the Court then discussed confidentiality of court deliberations and records. “In the Judiciary, privileges against disclosure of official records ‘create a hierarchy of rights that  protect certain confidential relationships over and above the public’s evidentiary need’ or ‘right to every man’s evidence.’ Accordingly, certain information contained in the records of cases before the Supreme Court are considered confidential and are exempt from disclosure. To reiterate, the need arises from the dictates of the integrity of the Co urt’s decision-making function which may be affected by the disclosure of information. Specifically, the Internal Rules of the Supreme Court (IRSC) prohibits the disclosure of  (1) the result of the raffle of cases, (2) the actions taken by the Court on each case included in the agenda of the Court’s session, and (3) the deliberations of the Members in court sessions on cases and matters pending before it .” JURISTS REVIEW CENTER What about the confidentiality requirement? “[T]he rules on confidentiality will enable the Members of the Court to ‘freely discuss the issues without fear of criticism for holding unpopular positions’ or fear  BARThe REVIEW of humiliation for one’s comments. privilege2017 against disclosure of these kinds of  information/communication is known as deliberative process privilege , involving as it does the deliberative process of reaching a decision. ‘Written advice from a variety of individuals is an important element of the government’s decision-making process and that the interchange of advice could be stifled if courts forced the government to disclose those recommendations;’ the privilege is intended ‘to prevent R 20 A Library Of Liberties  Antolin v. Do mondon, 623 SCRA 163 (2010). B G vis-à-vis An Arsenal Of Arms R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 56 of 99 the “chilling” of deliberative communications.’” And, in this regard, confidentiality is not something that the Court alone is claiming for itself. “[A] Senator may invoke legislative privilege when he or she is questioned outside the Senate about information gathered during an executive session of the Senate’s legislative inquiry in aid of legislation. In the same manner, a justice of the court or a judge may invoke  judicial privilege in the Senate sitting as an Impeachment Court, for proceedings in the performance of  his or her own judicial functions. What applies to magistrates applies with equal force to court officials and employees who are privy to these deliberations . They may likewise claim exemption when asked about this privileged information.” What is then the extent of this rule of confidentiality applicable to courts? The Court explained that while Section 2, Rule 10 of the Internal Rules of the Supreme Court (IRSC) speaks only of the confidentiality of court deliberations, “it is understood that the rule extends to documents and other communications which are part of or are related to the deliberative process . The deliberative  process privilege protects from disclosure documents reflecting advisory opinions, recommendations and deliberations that are component parts of the process for formulating governmental decisions and policies. Obviously, the privilege may also be claimed by other court officials and employees when asked to act on these documents and other communications. ” And, how do you draw the parameters of this judicial deliberative process privilege ? “To qualify for   protection under the deliberative process privilege, the agency must show that the document is both (1) predecisional   and (2) deliberative .” Otherwise put, “[a] document is ‘predecisional’ under the deliberative process privilege if it precedes, in temporal sequence, the decision to which it relates. In other  words, communications are considered predecisional if they were made in the attempt to reach a final conclusion . A material is ‘deliberative,’ on the other hand, if it reflects the give-and-take of the consultative process. The key question in determining whether the material is deliberative in nature is whether disclosure of the information would discourage candid discussion within the agency . If the disclosure of the information would expose the government’s decisionmaking process in a way that discourages candid discussion among the decision-makers (thereby undermining the courts’ ability to  perform their functions), the information is deemed privileged. Court records which are ‘predecisional’ and ‘deliberative’ in nature are thus protected and cannot be the subject of a subpoena if judicial privilege is to be preserved.  The privilege in general insulates the Judiciary from an improper intrusion into the functions of the judicial branch and shields justices, judges, and court officials and employees from public scrutiny or the pressure of public opinion that would impair a judge’s ability to render  impartial decisions. The deliberative process can be impaired by undue exposure of the decision-making  process to public scrutiny before or even after the decision is made,. . .” In addition, “two other grounds may be cited for denying access to court records, as well as JURISTS REVIEW CENTER  preventing members of the bench, from being subjected to compulsory process:(1) the disqualification by reason of privileged communication and (2) the pendency of an action or matter ” – “Members of the Court may not be compelled to testify in the impeachment proceedings against the Chief Justice BAR REVIEW 2017 or other Members of the Court about information they acquired in the performance of their official function of adjudication, such as information on how deliberations were conducted or the material inputs that the justices used in decision-making, because the end-result would be the disclosure of confidential information that could subject them to criminal prosecution. Such act violates judicial privilege (or the equivalent of executive privilege) as it pertains to the exercise of the constitutional mandate of  adjudication.” HowA about court Of officials and employees? Well,Arsenal the sameOf rules on confidentiality apply vis-à-vis An Library Liberties Arms to them. In this regard, too, note must be taken of the fact that “[u]nder existing laws, neither the R B G R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 57 of 99 Impeachment Court nor the Senate has the power to grant immunity from criminal prosecution for  revealing confidential information.” The Court further clarified that the rule on confidentiality applied to internal deliberations and  actions  (adjudicatory functions) as distinguished from external matters . “To state the rule differently, Justices of the Court cannot be compelled to testify on matters relating to the internal deliberations and actions of the Court , in the exercise of their adjudicatory functions and duties. This is to be differentiated from a situation where the testimony is on a matter which is external to their adjudicatory functions and duties. For example, where the ground cited in an impeachment complaint is bribery, a Justice may be called as a witness in the impeachment of another Justice, as bribery is a matter external to or is not connected with t he adjudicatory functions and duties of a magistrate. A Justice, however, may not be called to testify on the arguments the accused Justice presented in the internal debates as these constitute details of the deliberative process.” On the need to subpoena court personnel to testify, the court said, “witnesses need not be summoned to testify on matters of public record ” because “entries in official records may be presented without the necessity of presenting in court the officer or person who made the entries . Entries in public or official books or records may be proved by the pro duction of the books or records themselves or by a copy certified by the legal keeper thereof. These records, however, may be presented and marked in evidence only where they are not excluded by reasons of privilege and the other reasons discussed above .” And to make it clear for everyone, the Court declared: “As a last point and mainly for purposes of  stress, the privileges discussed above that apply to justices and judges apply mutatis mutandis to court officials and employees with respect to their official functions. If the intent only is for them to identify and certify to the existence and genuineness of documents within their custody or control that are not otherwise confidential or privileged under the above discussed rules, their presence before the Impeachment Court can be and should be excused where certified copies of these non-privileged and non-confidential documents can be provided.” 2.  Re: Request for Copy of 2008 Statement of Assets, Liabilities and Net Worth [SALN] and   Personal Data Sheet or Curriculum Vitae of the Justice of the Supreme Court and  Officers and Employees of the Judiciary , 672 SCRA 27 (2012) Relative to the issues of transparency and access to matters of public concern, this case about the request for Statements of Assets, Liabilities and Net Worth (SALN) and other related documents about members of the judiciary, the Court came up with the following guidelines: 1. All requests shall be filed with the Office the ClerkC ofENTER Court of the Supreme Court, the Court of  JURISTS RofEVIEW Appeals, the Sandiganbayan, the Court of Tax Appeals; for the lower courts, with the Office of the Court Administrator; and for attached agencies, with their respective heads of offices. AR EVIEW 2. Requests shall cover only copiesBof theR latest SALN,2017 PDS and CV of the members, officials and employees of the Judiciary, and may cover only previous records if so specifically requested and considered as justified, as determined by the officials mentioned in par. 1 above, under the terms of these guidelines and the Implementing Rules and Regulations of R.A. No. 6713. R B G 3. In the case of requests for copies of SALN of the Justices of the Supreme Court, the Court of  Appeals, the Sandiganbayan and the Court of Tax Appeals, the authority to disclose shall be made by the A Library Of Liberties vis-à-vis An Arsenal Of Arms Court En Banc. R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 58 of 99 4. Every request shall explain the requesting party’s specific purpose and their individual interests sought to be served; shall state the commitment that the request shall only be for the stated purpose; and shall be submitted in a duly accomplished request form secure d from the SC website. The use of the information secured shall only be for the stated purpose. 5. In the case of requesting individuals other than members of the media, their interests should go  beyond pure or mere curiosity. 6. In the case of the members of the media, the request shall additionally be supported by proof under  oath of their media affiliation and by a similar certification of the accreditation of their respective organizations as legitimate media practitioners. 7. The requesting party, whether as individuals or as members of the media, must have no derogatory record of having misused any requested information previously furnished to them. 3.  Sereno v. Committee on Trade and Related Matters (CTRM) of the National Economic and   Development Authority (NEDA), 782 SCRA 486 (2016) Minutes of closed-door meetings of the Committee on Trade and Related Maters (CTRM) are exempt from the constitutional right of access to information. The Court pointed out that two requisites must concur before the right to information may be compelled by writ ofmandamus. “ Firstly, the information sought must be in relation to matters of public concern or public interest. And secondly, it must not be exempt by law from the operation of the constitutional guarantee. As to the first requisite, there is no rigid test in determining whether or not a particular information is of public concern or public interest. Both terms cover a wide-range of issues that the public may want to be familiar with either because the issues have a direct effect on them or because the issues ‘naturally arouse the interest of an ordinary citizen.’ As such, whether or not the information sought is of public interest or public concern is left to the proper determination of the courts on a case to case basis. . . . The second requisite is that the information requested must not be excluded by law from the constitutional guarantee. In that regard, the Court has already declared that the constitutional guarantee of the people’s right to information does not cover national security matters and intelligence information, trade secrets and banking transactions and criminal matters. Equally excluded from coverage of the constitutional guarantee are diplomatic correspondence, closed-door Cabinet meeting and executive sessions of either house of Congress, as well as the internal deliberations of the Supreme Court. In Chavez v. Public Estates Authority, the Court has ruled that the right to information does not extend to matters acknowledged as ‘privileged information under the separation of powers,’ which include ‘Presidential conversations, correspondences, or  discussions during closed-door Cabinet meetings.’ Likewise exempted from the right to information are ‘information on military and diplomatic secrets, information affecting national security, and information on investigations of crimes by law enforcement agencies before the prosecution of the accused.’” JURISTS REVIEW CENTER Here, the respondents claim exemption on the ground that the May 23, 2005 meeting was classified as a closed-door Cabinet meeting by virtue of the committee’s composition and the nature of its mandate BARandRpolicy-making. EVIEW 2017 dealing with matters of foreign affairs, trade They assert that the information withheld was within the scope of the exemption from disclosure because the CTRM meetings were directly related to the exercise of the sovereign prerogative of the President as the Head o f State in the conduct of foreign affairs and the regulation of trade, as provided in Section 3(a) of Rule IV of the Rules Implementing R.A.  No. 6713. The Court upheld such claim. “The respondents are correct. It is always necessary, given the highly important and complex powers to fix tariff rates vested in the President, that the recommendations A Libraryconsideration Of Liberties  Anout Arsenal Of Arms submitted for the President’s bevis-à-vis well-thought and well-deliberated. The Court has R B G R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 59 of 99 expressly recognized in Chavez v. Public Estates Authority that ‘a frank exchange of exploratory ideas and assessments, free from the glare of publicity and pressure by interested parties, is essential to protect the independence of decision-making of those tasked to exer cise Presidential, Legislative and Judicial  power. . . . Without doubt, therefore, ensuring and promoting the free exchange of ideas among the members of the committee tasked to give tariff recommendations to the President were truly imperative.” In addition, the Court also declared: “Every claim of exemption, being a limitation on a right constitutionally granted to the people, is liberally construed in favor of disclosure and strictly against the claim of confidentiality. However, the claim of privilege as a cause for exemption from the obligation to disclose information must be clearly asserted by specifying the grounds for the exemption. In case of  denial of access to the information, it is the government agency concerned that has the burden of showing that the information sought to be obtained is not a matter of public concern, or that the same is exempted from the coverage of the constitutional guarantee. We reiterate, therefore, that the burden has been well-discharged herein.” Further, “executive privilege is properly invoked in relation to specific categories of information, not to categories of persons. As such, the fact that some members of the committee were not part of the President’s Cabinet was of no moment. What should determine whether or not information was within the ambit of the exception from the people’s right to access to information was not the composition of the body, but the nature of the information sought to be accessed.” Finally, “[i]n case of  conflict, there is a need to strike a balance between the right of the people and the interest of the Government to be protected. Here, the need to ensure the protection of the privilege of non-disclosure is necessary to allow the free exchange of ideas among Government officials as well as to guarantee the well-considered recommendation free from interference of the inquisitive public.” 4.  Department of Foreign Affairs v. BCA International Corporation , 795 SCRA 276 (2016) In this case involving an arbitration proceeding, BCA International  sought the issuance of a subpoena ad testificandum and subpoena duces tecum  relative to its dispute with the Department of Foreign Affairs. The DFA opposed the same, alleging that the presentation of the witnesses and documents was  prohibited by law and protected by the deliberative process privilege. In the meantime, there was an appearance of three witnesses subpoenaed during the arbitration hearings. The Supreme Court subsequently issued a TRO enjoining the arbitral tribunal from taking cognizance of the testimonies of  the 3 witnesses. It eventually held that the deliberative process privilege could be properly invoked in an arbitration proceeding if warranted under the circumstances. The Court also noted that “this case is one of first impression involving the production of evidence in an arbitration case where the deliberative process privilege is invoked.” The Court said that the Regional Trial Court was wrong in holding that the information wasno longer   privileged. “Contrary to the RTC's ruling, there is nothing our Chavez v. Public Estates Authority JURISTS REVIEW Cin ENTER ruling which states that once a ‘definite proposition’ is reached by an agency, the privileged character of  a document no longer exists. On the other hand, we hold that before a ‘definite proposition’ is reached  by an agency, there are no ‘official acts, transactions, decisions’ yet which can be accessed by the BAR REVIEWor2017  public under the right to information. Only when there is an official recommendation can a ‘definite  proposition’ arise and, accordingly, the public’s right to information attaches. However, this right to information has certain limitations and does not cover privileged information to protect the independence of decision-making by the government.” After declaring that “[d]eliberative process privilege is one kind of privileged information, which is within the exceptions of the constitutional right to vis-à-vis A Library Of  An character Arsenal of Ofthe Arms information,” the Court went on to Liberties state that “[t]he privileged information does not end R B G R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 60 of 99 when an agency has adopted a definite proposition or when a contract has been perfected or  consummated; otherwise, the purpose of the privilege will be defeated. The deliberative process privilege applies if its purpose is served, that is, ‘to protect the frank exchange of ideas and opinions critical to the government’s decision[-]making process where disclosure would discourage such discussion in the future.’ In Judicial Watch of Florida v. Department of Justice, the U.S. District Court for the District of Columbia held that the deliberative process privilege's ‘ultimate purpose xx x is to prevent injury to the quality of agency decisions by allowing government officials freedom to debate alternative approaches in private,’ and this ultimate purpose would not be served equally well by making the privilege temporary or held to have expired.” Further, “‘[t]he deliberative process privilege exempts materials that are ‘predecisional’ and ‘deliberative,’ but requires disclosure of policy statements and final opinions ‘that have the force of law or explain actions that an agency has already taken.’” In fine, “[t]he deliberative process privilege can also be invoked in arbitration proceedings under RA 9285. ‘Deliberative process privilege contains three policy bases: first, the privilege protects candid discussions within an agency; second, it prevents public confusion from premature disclosure of agency opinions before the agency establishes final policy; and third, it protects the integrity of an agency’s decision; the public should not judge officials based on information they considered prior to issuing their  final decisions.’ Stated differently, the privilege serves ‘to assure that subordinates within an agency will feel free to provide the decision[-]maker with their uninhibited opinions and recommendations without fear of later being subject to public ridicule or criticism; to protect against premature disclosure of   proposed policies before they have been finally formulated or adopted; and to protect against confusing the issues and misleading the public by dissemination of documents suggesting reasons and rationales for  a course of action which were not in fact the ultimate reasons for the agency’s action.’ Under RA 9285, orders of an arbitral tribunal are appealable to the courts. If an official is compelled to testify before an arbitral tribunal and the order of an arbitral tribunal is appealed to the courts, such official can be inhibited  by fear of later being subject to public criticism, preventing such official from making candid discussions within his or her agency. The decision of the court is widely published, including details involving the  privileged information. This disclosure of privileged information can inhibit a public official from expressing his or her candid opinion. Future quality of deliberative process can be impaired by undue exposure of the decisionmaking process to public scrutiny after the court decision is made.” The Court further held that “[t]here is a public policy involved in a claim of deliberative process  privilege – ‘the policy of open, frank discussion between subordinate and chief concerning administrative action.’ Thus, the deliberative process privilege cannot be waived.” Nevertheless, “[a]s a qualified  privilege, the burden falls upon the government agency asserting the deliberative process privilege to  prove that the information in question satisfies both requirements – predecisional and deliberative.” JURISTS REVIEW CENTER K. R IGHT OF ASSOCIATION BAR REVIEW 2017 Man being a social being necessarily finds it part of his natural inclinations that he associate with others. He would not relish the idea of simply being an island all by himself, isolated from the rest or the mainland. And the act of so joining others could be a form of expression – you link up with people who are likely to share your interests, sentiments, philosophy, ideology or affection. 21  And, the right to associate may also include as a necessary corollary, the right not to associate, though such latter right R 21 A Library Of Liberties B G vis-à-vis An  See, e.g., Griswold v. Connecticut , 381 U.S. 479 (1965) Arsenal Of Arms R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 61 of 99 may not justify a lawyer in refusing to pay his dues to the IBP.22 The right to associate may also mean that an organization would have the right to choose who its members are, excluding or expelling those whose personality traits may run into conflict with the group’s  philosophy,23 or refusing participation to a group in a parade where that gro up’s message would not be in conformity with the organizer’s own idea of what the activity is all about. 24 And, when it comes to associations directly related to one’s employment, “the right to abstain from joining a labor organization is subordinate to the policy of encouraging unionism as an instrument of social justice.”25 L. EMINENT DOMAIN While the government may negotiate with the owner for the acquisition of the latter’s property, such a procedure may not always result in a successful transaction, however, especially if there is need for  more expeditious action, or, the owner may simply be disinclined to sell. Thus, this coercive power of  the government to take property even if the owner oppo ses, provided the same is for public use and there is payment of just compensation. Accordingly, questions on expropriation may deal with issues of  necessity,26 or arbitrary exercise,27 as well as the justness and timeliness of the payment for the property taken.28 As for judicial determination of just compensation, the Court has reverted to the old rule that the same is a judicial function, not one to be simply determined by looking at what is indicated in the tax declaration. 29 With regard to public use, the same has also been construed to have a more expansive meaning so as to cover certain purposes which could not have been included in the past, such as tourism, 30 and setting up the birthplace of a known religious leader as a National Historical Landmark.31 Also, considering that the power of eminent domain involves the strong arm of the law to compel an unwilling person to part with his property,32 extreme caution is called for in resolving complaints for  condemnation – when a serious doubt arises regarding the supposed public use of property, the doubt 22  In re Edillon, 84 SCRA 554 (1978) 23  See Boy Scouts of America v. Dale, 530 U.S. 640 (2000), where the U.S. Supreme Court upheld the right of the Boy Scouts to exclude a homosexual. See also Ordinario v. People, 428 SCRA 773 (2 004), which in volves a teacher in Boy Scout who was convicted of sexual assault for putting his organ into the mouth of a male ten-year old pupil. 24 25  Hurley v. Irish American Gay, Lesbian and Bis exual Group of Bost on, 515 U.S. 557 (1995)  Bank of the Philippine Islands v. BPI Employees Union-Davao Chapter-Federation of Unions in BPI Unibank , 627 SCRA 590 (2010) 26 27 28 City of Manila v. Chinese Community of Manila , 40 Phil. 349 (1919) J  De Knecht v. Bautista, 100 SCRA 660URISTS (1980) REVIEW CENTER  The interest rate has been set at twelve  per centum (12%) per annum, to be computed from the time of taking to the date of   payment, which rate should help eliminate the constant fluctuation and inflation of the value of currency over time. ( Republic v. Court  of Appeals, 383 SCRA 611 [2002]; Reyes v. National Housing Aut hority, 395 SCRA 494 [2003]; Republic v. Court of Appeals., 454 SCRA 516 [2005]). However, star ting 1 July 2013, theAR ra te hasEVIEW been lowered to six per cent  (6%). (See Department of Agrarian Reform v. Sta. Romana, 729 SCRA 387 [2014]) B 29 30 31 32  EPZA v. Dulay, 149 SCRA 305 (1987) R R 2017 B  Heirs of Juancho Ar dona v. Reyes, 125 SCRA 220 (1983)  Manosca v. Cou rt of Appeals, 252 SCRA 412 (1996) G  “The fact that said lots are being utilized by respondents Legaspis for their own private purposes is, consequently, not a valid vis-à-vis Of Liberties  An Arsenal Of Arms reason to deny exercise ofAtheLibrary right of expropriation, for as long as the taking is for a public purpose and just compensation is paid.” ( Republic v. Legaspi, Sr. , 670 SCRA 110 [2012]) R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 62 of 99 should be resolved in favor of the property owner and against the State,33 or, that eminent domain cases are to be strictly construed against the expropriator.34  This perspective would make it easier to understand the Court’s recent rulings mandating payment within five (5) years from finality of the  judgment of expropriation, otherwise the owner would be entitled to demand recovery of possession,35 as well as the repurchase o f the property when the purpose for which it was expropriated is abandoned.36 Further, note that the exercise of the power of eminent domain is not subject to the strictures ofres  judicata or the principle of law of the case. The mere fact that the government or its agencies may not have prevailed in the first attempt to expropriate a property does not preclude them from doing so again, making adjustments or rectifications in whatever may have been the earlier deficiencies.37 Also, in the context of expropriation proceedings, the soil has no value separate from that of the expropriated land.38 1.  Hacienda Luisita, Inc. v. Presidential Agrarian Reform Council , 670 SCRA 392 (2012) In Republic v. Vda. De Castellvi, 58 SCRA 336 (1974), the Court spoke about the elements of  “taking,” in order to properly determine the reckoning date for just compensation. It made reference to entry, which must be for more than a momentary period, and which entry must also be under warrant or  color of legal authority, as well as the need to devote the property to public use, and, the ouster and deprivation of the owner of all beneficial enjoyment of the property. Meanwhile, inTiongson v. National   Housing Authority, 558 SCRA 56 (2008), the Court held that where the initial taking of a property subject to expropriation was by virtue of a law which was subsequently declared unconstitutional, just compensation is to be determined as of the date of the filing of the complaint, not the date of taking. In the case of Hacienda Luisita, the Court also had to determine when the property was deemed taken for purposes of the agrarian reform program considering that the earlier plan to co mply – by means of a “stock distribution plan” (SDP) – was eventually invalidated. So, is it at the time the SDP agreement was approved (1989), or the time when compulsory acquisition was subsequently mandated (2006) following the invalidation of the SDP agreement? The Court said, it is the former. It explained that the date of “taking” is 21 November 1989, the date when Presidential Agrarian Reform Council (PARC) approved the Hacienda’s SDP in view of the fact that this is the time that the farmworkers-beneficiaries (FWBs) were considered to own and possess the agricultural lands in Hacienda Luisita. To be precise, these lands became subject of the agrarian reform coverage through the stock distribution scheme only upon the approval of the SDP. Such approval is akin to a notice of coverage ordinarily issued under  compulsory acquisition. “‘Taking’ also occurs,” the Court further stated, “when agricultural lands are voluntarily offered by JURISTS REVIEW CENTER a landowner and approved by PARC for CARP coverage through the stock distribution scheme, as in the instant case. Thus, HLI’s submitting its SDP for approval is an acknowledgment on its part that the agricultural lands of Hacienda Luisita are covered by CARP. However, it was the PARC appro val which BAR REVIEW 2017 33 34 35 36 37 38  Barangay Sind alan, San Fernando, Pampanga v. Court of Appeals, 518 SCRA 649 (2007) San Roque Realty and Development Corporation v. Republic, 532 SCRA 493 (2007)  Republic v. Lim, 462 SCRA 265 (2005) R B G  Mactan-Cebu Internatio nal Airport Authority v. Lozada, Sr., 613 SCRA 618 (2010)  See Municipality A of Parañaque V.M.Liberties Realty Corporation, 292 SCRA (1998) vis-à-vis Libraryv.Of  An678 Arsenal  Republic v. Rural Ban k of Kabacan, In c., 664 SCRA 233(2012) Of Arms R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 63 of 99 should be considered as the effective date of ‘taking’ as it was only during this time that the government officially confirmed the CARP coverage of these lands.” Such approval operates and takes the place of  a notice of coverage ordinarily issued under compulsory acquisition. 2.  National Power Corporation v. Zabala , 689 SCRA 554 (2013) In this case, the Court reaffirmed the rule that “[l]egislative enactments, as well as executive issuances, fixing or providing for the method of computing just compensation are tantamount to impermissible encroachment on judicial prerogatives.” Thus, it disregarded the National Power  Corporation’s reliance on §3A(b) of R.A. No. 6395 (NAPOCOR Charter) which provides merely for a 10% right-of-way easement fee, instead of the full amount for the property affected by the transmission lines of NAPOCOR. “[S]ince the high-tension electric current passing through the transmission lines will  perpetually deprive the property owners of the normal use of their land, it is only just and proper to require Napocor to recompense them for the full market value of their property.” Statutes and executive issuances fixing or providing for the method of computing just compensation are not binding on courts and, at best, are treated as mere guidelines in ascertaining the amount thereof. 3.  National Power Corporation v. Cruz , 702 SCRA 359 (2013) The appointment of the Provincial Appraisal Committee ( PAC ) instead of three (3) commissioners to assist the court in determining just compensation substantially complies with §5 of Rule 67 of the Rules of Court. It was explained, thus: “Although the appointment of commissioners is mandatory, the Rules do not impose any qualifications or restrictions on the appointment, other than that the commissioners should not number more than three and that they should be competent and disinterested parties. . . . It is immaterial that the RTC appointed a committee instead of three persons to act as commissioners, since the PAC is composed of three members — the Provincial Assessor, the Provincial Engineer, and the Provincial Treasurer. Considering their positions, we find each member of the PAC competent to perform the duty required of them, i.e., to appraise the valuation of the affected lots. . . . The mere fact that they are government officials does not disqualify them as disinterested persons, as the provincial government has no significant interest in the case. Instead, what we find material is that the PAC was tasked to  perform precisely the same duty that the commissioners, under Section 5, Rule 67 of the Rules of Court, are required to discharge.” In short, “[t]he appointment of the PAC served the same function as an appointment of three persons as commissioners under the Rules.” 4. Cabahug v. National Power Corporation , 689 SCRA 666 (2013) In this case, while Cabahug granted the NPC a continuous easement of right of way for the latter’s transmission lines and their appurtenances, accepting a ten percent (10%) easement fee pursuant to Sec. 3-A of Republic Act No. 6395, heJreserved theRright to receive additional compensation pursuant to the CENTER URISTS EVIEW case of National Power Corporation v. Gutierrez , 193 SCRA 1 (1991). Cabahug subsequently filed a case for additional payment, but the NPC said it already paid what was due pursuant to R.A. No. 6395. BAR but REVIEW The trial court ruled in favor of Cabahug the Court2017 of Appeals reversed, holding that he already got what was due him as evidenced by the Grant of Right of Way he executed in favor of NPC. The Supreme Court saw otherwise, however, specially in light of the reservation made in said grant, which mean that receipt of the easement fee did not bar further compensation from NPC. “Considering that Gutierrez was specifically made the point of reference for Jesus Cabahug’s reservation to seek further  compensation from NPC, we find that the CA likewise erred in finding that the ruling in said case does A Library Of Liberties vis-à-vis An Arsenal Of Arms not apply to the case at bench.” In Gutierrez , the issue presented for the Court’s resolution was the R B G R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 64 of 99  propriety of making NPC liable for the payment of the full market value of the affected property despite the fact that transfer of title thereto was not required by said easement. “In upholding the landowners’ right to full just compensation, the Court ruled that the power of eminent domain may be exercised although title is not transferred to the expropriator in an easement of right of way. Just compensation which should be neither more nor less than the money equivalent of the property is, moreover, due where the nature and effect of the easement is to impose limitations against the use of the land for an indefinite  period and deprive the landowner its ordinary use.” Then, the Court added: “Even without the reservation made by Jesus Cabahug in the Grant of Right of Way, the application of Gutierrez to this case is not improper as NPC represents it to be. Where the right of way easement, as in this case, similarly involves transmission lines which not only endangers life and limb but restricts as well the owner's use of the land traversed thereby, the ruling in Gutierrez remains doctrinal and should be applied. It has been ruled that the owner should be compensated for the monetary equivalent of the land if, as here, the easement is intended to perpetually or indefinitely deprive the owner of his proprietary rights through the imposition of conditions that affect the ordinary use, free enjoyment and disposal of the property or through restrictions and limitations that are inconsistent with the exercise of the attributes of ownership, or when the introduction of structures or objects which, by their nature, create or increase the probability of injury, death upon or destruction of life and property found on the land is necessary.” And, just to remind everyone about who has the final say on just compensation, the Court declared: “Too, the CA reversibly erred in sustaining NPC’s reliance on Section 3-A of RA 6395 which stat es that only 10% of the market value of the property is due to the owner of the property subject to an easement of right of way. Since said easement falls within the purview of the power of eminent domain, NPC’s utilization of said provision has been repeatedly struck down by this Court in a number of cases. The determination of just compensation in eminent domain proceedings is a judicial function and no statute, decree, or executive order can mandate that its own determination shall prevail over the court’s findings. Any valuation for just compensation laid down in the statutes may serve only as a guiding principle or  one of the factors in determining just compensation, but it may not substitute the court's own judgment as to what amount should be awarded and how to arrive at such amount. Hence, Section 3A of R.A. No. 6395, as amended, is not binding upon this Court.” 5.  Secretary of the Department of Public Works and Highways v. Tecson , 700 SCRA 243 (2013) and 756 SCRA 389 (2015) The subject property was taken way back in 1940 by the government for the purpose of using it as  part of a national highway without the courtesy of any expropriation proceedings being initiated. In 1994, the owners asked for the payment of just compensation but they were not happy with the offer of the government so they went to court to recover their property. When the case eventually reached the Rwas CENTER URISTS EVIEW Supreme Court, the pivotal issue toJbe resolved the valuation to be used – the value at time of taking (1940), or value at the time of the recovery suit more than fifty years later (1995)? (Incidentally, is the action barred by laches or prescription?) BAR REVIEW 2017 On the effect of long delay, the Court stated: “Laches is principally a doctrine of equity which is applied to avoid recognizing a right when to do so would result in a clearly inequitable situation or in an injustice. This doctrine finds no application in this case, since there is nothing inequitable in giving due course to respondents’ claim. Both equity and the law direct that a property owner should be compensated if his property is taken for public use. Neither shall prescription bar respondents’ claim vis-à-vis A Library Liberties  AnisArsenal Of Government Arms following the long-standing ruleOf ‘that where private property taken by the for public use R B G R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 65 of 99 without first acquiring title thereto either through expropriation or negotiated sale, the owner’s action to recover the land or the value thereof does not prescribe.’” Any effect then of the delay? “For failure of respondents to question the lack of expropriation proceedings for a long period of time, they are deemed to have waived and are estopped from assailing the power of the government to expropriate or  the public use for which the power was exercised. What is left to respondents is the right of  compensation.”  Now for the valuation. “Just compensation is ‘the fair value of the property as between one who receives, and one who desires to sell, x x x fixed at the time of the actual taking by the government .’ This rule holds true when the property is taken before the filing of an expropriation suit, and even if it is the property owner who brings the action for compensation.” Accordingly, “just compensation due respondents in this case should, therefore, be fixed not as of the time of payment but at the time of taking, that is, in 1940.” But is it not unfair to the landowners, making use of the value in 1940 (P =0.70/sq. m) instead of the value of = P1,500 at the time the action was filed? No, the Court explained: “While disparity in the above amounts is obvious and may appear inequitable to respondents as they would be receiving such outdated valuation after a very long period, it is equally true that they too are remiss in guarding against the cruel effects of belated claim. The concept of just compensation does not imply fairness to the property owner alone. Compensation must be just not only to the property owner, but also to the  public which ultimately bears the cost of expropriation.” Then the Court added that there must be  payment of interest, at the rate of 6% per annum, to be computed from 1940 until full payment.39 On motion for reconsideration, the Court added compounding interest, exemplary damages and attorney’s fees, as well as an admonition on need for timely payment. “It is important to note, however, that interest shall be compounded at the time judicial demand is made pursuant to Article 2212 of the Civil Code of the Philippines, . . .” and, “[c]onsidering that respondents-movants only resorted to judicial demand for the payment of the fair market value of the land on March 17, 1995, it is only then that the interest earned shall itself earn interest.” Further, the Court expounded on interest payment and just compensation. “Clearly, the award of interest on the value of the land at the time of taking in 1940 until full payment is adequate compensation to respondents-movants for the deprivation of their property without the benefit of expropriation proceedings. Such interest, however meager or enormous it may be, cannot be inequitable and unconscionable because it resulted directly from the application of law and  jurisprudence – standards that have taken into account fairness and equity in setting the interest rates due for the use or forbearance of money. Thus, adding the interest computed to the market value of the 39  Justice Velasco dissented on the just compensation, pointing out that it would be very iniquitous to the property owners. He  pointed out that under the decision – after 72 years from taking – the amount to be paid would only be the measly amount of  =1,500/sq. m.) were to be followed, it would P =27,066.032 , whereas if th e judgment of the Court of Appeals (based on the valuation of P URISTS EVIEW ENTER total P =22,022,040. 00 . He lamented: “Instead of being accorded justice and equity, respondents are, thus, penalized again by being awarded a mere pittance. The Court should not countenance DPWH's illegal act and penalize respondents hy awarding them with a miserable amount of just compensation after going through the ar duous process of vindicating their constitutional and property rights.” J B R C R 2017 Justice Leonen agreed with Justice Velasco the awarded amounted to gross injust ice. He then came up with his own idea AR amount EVIEW as to how to make the compensation fairer: “[T]he proper way to resolve this would be to use the economic concept of present value. This concept is usually summarized this way: Money received today is more valuable than the same amount of money received tomorrow. By applying this concept, we are able to capture jus t compensation in a more holistic manner. We ta ke into consideration the potential of money to increase (or decrease) in value across time.” (Under the submission of Justice Leonen, at the interest rate of 6% per annum, the value of the lot would be P =49.25 per sq. m., or P =357,949.00.) He then concluded: “Using the established concept of present value incorporates the di scipline of economics into our jurispruden ce on takings. Valuation is indeed an inexact science and economics also has its own assumptions. However, in my reckoning, this is infinitely better than leaving it up to the trial court judge. I submit that th is vis-à-vis Aground. Library Of Arsenal Of and Arms  proposal is a happy middle It meets theLiberties need for doctrinal precision  An urged by Justice Peralta the thirst for substantial justice in Justice Velasco's separate opinion. After all, I am sure that we all share in each other's goals.” R B G R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 66 of 99  property at the time of taking signifies the real, substantial, full  and ample value of the property. Verily, the same constitutes due compliance with the constitutional mandate on eminent domain and serves as a basic measure of fairness.” In addition to the payment of interest, “additional compensation shall be awarded to respondents-movants by way of exemplary damages and attorney’s fees in view of the government’s taking without the benefit of expropriation proceedings.” And for the overly extended delay, “considering that respondents-movants were deprived of beneficial ownership over their property for more than seventy (70) years without the benefit of a timely expropriation proceedings, and to serve as a deterrent to the State from failing to institute such proceedings within the prescribed period under  the law, a grant of exemplary damages in the amount of One Million Pesos (P =1,000,000.00) is fair and reasonable. Moreover, an award for attorney’s fees in the amount of Two Hundred Thousand Pesos (P200,000.00) in favor of respondents-movants is in order.” The Court also referred to R.A. 8974 as sort of a guide in regard to timely payments: “This Court is not unaware that at present, stringent laws and rules are put in place to ensure that owners of real  property acquired for national government infrastructure projects are promptly paid just compensation. Specifically, Section 4 of Republic Act No. 8974 (R.A. 8974), which took effect on November 26, 2000,  provides sufficient guidelines for implementing an expropriation proceeding, . . .” From there, it held that “[w]hile the foregoing provisions, being substantive in nature or disturbs substantive rights, cannot be retroactively applied to the present case, We trust that this established mechanism will surely deter hasty acquisition of private properties in the future without the benefit of immediate payment of the value of  the property in accordance with Section 4 of R.A. 8974. This effectively addresses J . Velasco’s concerns that sustaining our earlier rulings on the matter would be licensing the government to dispense with constitutional requirements in taking private properties. Moreover, any gap on the procedural aspect of  the expropriation proceedings will be remedied by the aforequoted provisions. In effect, R.A. 8974 enshrines a new approach towards eminent domain that reconciles the inherent unease attending expropriation proceedings with a position of fundamental equity.” 6.  Mactan-Cebu International Airport Authority v. Lozada, Sr. , 613 SCRA 618 (2010) When property taken through eminent domain is no longer needed for the public purpose for which it was expropriated, does the former owner have the right to repurchase it? Generally, no. And this traces  back to Fery v. Municipality of Cabanatuan, 42 Phil. 28 (1921). In this case of Mactan-Cebu, the Court revisited Fery and came up with a new rule. After noting that Fery was not decided pursuant to our now sacredly held constitutional right that private property shall not be taken for  public use without just  compensation, it proceeded to declare that “[t]hese requirements partake of the nature of implied conditions that should be complied with to enable the condemnor to keep the property expropriated. More particularly, with respect to the element of public use, the expropriator should commit to use the JURISTS CENTER filed, failing which, it should file EVIEW  property pursuant to the purpose stated in the R petition for expropriation another petition for the new purpose. If not, it is then incumbent upon the expropriator to return the said  property to its private owner, if the latter desires to reacquire the same. Otherwise, the judgment of  BitAR REVIEW expropriation suffers an intrinsic flaw, as would lack one2017 indispensable element for the proper exercise of the power of eminent domain, namely, the particular public purpose for which the property will be devoted. Accordingly, the private property owner would be denied due process of law, and the judgment would violate the property owner’s right to justice, fairness, and equity.” R B G Then, it held: “In light of these premises, we now expressly hold that the taking of private property, vis-à-vis A Library Ofexercise Liberties  An Arsenal Of Arms consequent to the Government’s of its power of eminent domain, is always subject to the R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 67 of 99 condition that the property be devoted to the specific public purpose for which it was taken. Corollarily, if this particular purpose or intent is not initiated or not at all pursued, and is peremptorily abandoned, then the former owners, if they so desire, may seek the reversion of the property, subject to the return of the amount of just compensation received. In such a case, the exercise of the power of eminent domain has become improper for lack of the required factual justification.” In Vda. de Ouano v. Republic, 642 SCRA 384 (2011), the Court reiterated Lozada and Heirs of   Moreno,40 making the application of the principle enunciated in Lozada more explicit. The Court said, “failing to keep its end of the bargain, MCIAA can be compelled by the former landowners to reconvey the parcels of land to them, otherwise, they would be denied the use of their properties upon a state of  affairs that was not conceived nor contemplated when the expropriation was authorized. In effect, the government merely held the properties condemned in trust until the proposed public use or purpose for  which the lots were condemned was actually consummated by the government. Since the government failed to perform the obligation that is the basis of the transfer of the property, then the lot owners Ouanos and Inocians can demand the reconveyance of their old properties after the payment of the condemnation price.” It was also made clear here that “ MCIAA v. Lozada, Sr., revisited and abandoned the Fery.” Expounding on the Court’s holding, it stated: “ In esse, expropriation is forced private property taking, the landowner being really without a ghost of a chance to defeat the case of the expropriating agency. In other words, in expropriation, the private owner is deprived of property against his will. Withal, the mandatory requirement of due process ought to be strictly followed, such that the state must show, at the minimum, a genuine need, an exacting public purpose to take private property, the purpose to be specifically alleged or least reasonably deducible from the complaint. Public use, as an eminent domain concept, has now acquired an expansive meaning to include any use that is of “usefulness, utility, or advantage, or what is productive of general benefit [of the public].’ If the genuine public necessity –  the very reason or condition as it were – allowing, at the first instance, the expropriation of a private land ceases or disappears, then there is no more cogent point for the government’s retention of the expropriated land. The same legal situation should hold if the government devotes the property to another   public use very much different from the original or deviates from the declared purpose to benefit another   private perso n. It has been said that the direct use by the state of its power to oblige landowners to renounce their productive possession to another citizen, who will use it predominantly for that citizen’s own private gain, is offensive to our laws. A condemnor should commit to use the property pursuant to the purpose stated in the petition for expropriation, failing which it should file another petition for the new purpose. If not, then it behooves the condemnor to re turn the said property to its private owner, if  the latter so desires. The government cannot plausibly keep the property it expropriated in any manner  it pleases and, in the process, dishonor the judgment of expropriation. JURISTS REVIEW CENTER This is not in keeping with the idea of fair play. The notion, therefore, that the government, via expropriation proceedings, acquires unrestricted ownership over or a fee simple title to the covered land, is no longer tenable.” BARsaid REVIEW 2017  land compared to purchased  realty. It also worth highlighting what the Court about expropriated  “Expropriated lands should be differentiated from a piece of land, ownership of which was absolutely transferred by way of an unconditional purchase and sale contract freely entered by two parties, one without obligation to buy and the other without t he duty to sell. In that case, the fee simple concept really comes into play. There is really no occasion to apply the ‘fee simple concept’ if the transfer is conditional. R 40 A Library Of Liberties B G vis-à-vis An Arsenal Of Arms  Heirs of Timoteo Moreno and Maria Rotea v. M actan-Cebu Internation al Airport Author ity, 413 SCRA 502 (2003). R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 68 of 99 The taking of a private land in expropriation proceedings is always conditioned on its continued devotion to its public purpose. As a necessary corollary, once the purpose is terminated or peremptorily abandoned, then the former owner, if he so desires, may seek its r eversion, subject of course to the return, at the very least, of the just compensation received. To be compelled to renounce dominion over a piece of land is, in itself, an already bitter pill to swallow for the owner. But to be asked to sacrifice for the common good and yield ownership to the government which reneges on its assurance that the private  property shall be for a public purpose may be too much. But it would be worse if the power of eminent domain were deliberately used as a subterfuge to benefit another with influence and power in the political  process, including development firms. The mischief thus depicted is not at all far-fetched with the continued application of Fery. Even as the Court deliberates on these consolidated cases, there is an uncontroverted allegation that the MCIAA is poised to sell, if it has not yet sold, the areas in question to Cebu Property Ventures, Inc. This provides an added dimension to abandon Fery.” 7.  Republic v. Heirs of Saturnino Q. Borbon , 745 SCRA 40 (2015) In case of an aborted expropriation, there is need to pay disturbance compensation, not  just  compensation. “The expropriator who has taken possession of the property subject of expropriation is obliged to pay reasonable compensation to the landowner for the period of such possession although the  pro ceedings had been discontinued on the ground that the public purpose for the expropriation had meanwhile ceased.” 8.  National Power Corporation v. Posada , 752 SCRA 550 (2015) When the expropriation is discontinued, such as when “the taking of private pro perty is no longer for  a public purpose, the expropriation complaint should be dismissed by the trial court. The case will  proceed only if the trial court’s order of expropriation became final and executory and the expropriation causes prejudice to the property owner.” And in regard to the governing law for expropriation proceedings for national infrastructure projects, the same are governed by Rule 67 of the Rules of Court and Republic Act No. 8974, with this clarification – “The power of eminent domain is an inherent competence of the state. It is essential to a sovereign. . . . “However, the manner of its exercise such as which government instrumentality can be delegated with the power to condemn, under what conditions, and how may be limited by law. Republic Act No. 8974 does these, but it should not be read as superseding the power of this court to promulgate rules of procedure. Thus, our existing rules should be read in conjunction with the law that limits and conditions the power of eminent domain. Expropriation, the procedure by which the government takes  possession of private property, is outlined primarily in Rule 67 of the Rules of Court.” The provisional value providedJfor in R.A.R No. 8974 isCaENTER form of a frontloading  cost. “The statutory URISTS EVIEW requirement to pay a provisional amount equivalent to the full Bureau of Internal Revenue zonal valuation does not substitute for the judicial determination of just compensation. The payment to the property owner of a preliminary amount is one way to R ensure that property BAR 2017 will not be condemned arbitrarily. It EVIEW allows frontloading the costs of the exercise so that it is the government instrumentality that bears the  burden and not the owner whose property is taken. The payment of a provisional value may also serve as indemnity for damages in the event that the expropriation does not succeed.” R B G With regard to the issue as to whether an expropriator may discontinue an expropriation proceeding that it instituted, the Court said: “Considering that the National Power Corporation is no longer using A Library Of Liberties vis-à-vis An Arsenal Of Arms respondents’ properties for the purpose of building the Substation Project, it may be allowed to R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 69 of 99 discontinue with the expropriation proceedings, subject to the approval of the court. However, the grant of the Motion to Withdraw carries with it the necessary consequence of making the trial court’s order  of condemnation final and executory.” Accordingly, “expropriation proceedings must be dismissed when it is determined that it is not for a public purpose, except when: First, the trial court’s order already  became final and executory; Second, the government already took possession of the property; and Lastly, the expropriation case already caused prejudice to the landowner.” In this case, the Court noted that respondents have not yet been deprived of their property since the National Power Corporation was never  able to take possession. It could not therefore determine whether damages have been suffered as a result of the expropriation. Accordingly, the case needed to be remanded to the trial court to determine whether  respondents have already been prejudiced by the expropriation. Further, “[t]he withdrawal of the Petition  before this court will have no practical effect other than to make the trial court’s order of condemnation final and executory. In order to prevent this absurdity, the National Power Corporation should file the  proper Motion to Withdraw before the trial court,” whereupon, it would be its burden to plead and prove to the trial court its reasons for discontinuing with the expropriation while the respondents may also plead and prove damages incurred from the commencement of the expropriation, if any. 9.  National Power Corporation v. Manalastas , 782 SCRA 363 (2016) “The bone of contention in this case is the inclusion of the inflation rate of the Philippine Peso in determining the just compensation due to respondents.” Entry was in 1977 to 1978 without the knowledge or consent of owners, without any expropriation proceedings being initiated, and without any compensation made. In 2000, a complaint was filed by the landowners demanding removal of the power  lines and its accessories and payment of damages, or in the alternative, payment of the fair market value of the affected areas. The Court said that “valuation of the land for purposes of determining just compensation should not include the inflation rate of the Philippine Peso because the delay in payment of the price of expropriated land is sufficiently recompensed through payment of interest on the market value of the land as of the time of taking from the landowner.” And, for the guidance of everyone, just compensation is for the courts to determine, not the parties. “It is the courts, not the litigants, who decide on the proper interpretation or application of the law and, thus, only the courts may determine the rightful compensation in accordance with the law and evidence presented by the parties. It is incongruous for the court below to uphold a proposition merely because it was recommended by a party, despite t he same being erroneous.” The Court also condemned the expropriator to pay exemplary damages and attorney’s fees for the irregular way the property was taken. “As held in the Resolution dated April 21, 2015 inSecretary of the  Department of Public Works and Highways, et al. v. Spouses Heracleo and Ramona Tecson, additional compensation in the form of exemplary damages and attorney’s JURISTS REVIEW CENTERfees should likewise be awarded as a consequence of the government agency’s illegal occupation of the owner’s property for a very long time, resulting in pecuniary loss to the owner . Indeed, government agencies should be admonished and made to realize that B itsAR negligence and2017 inaction in failing to commence the proper  REVIEW expropriation proceedings before taking private property, as provided for by law, cannot be countenanced  by the Court.” 10. R B G  Republic v. C.C. Unson Company, Inc. , 785 SCRA 202 (2016) Where the entire property is not taken and the remaining portions are practically rendered useless for  A Librarydamages Of Liberties Arsenal Of Arms the owner, then consequential would vis-à-vis have to be An paid. Here, following the expropriation of a R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 70 of 99  portion of a property, two irregularly shaped dangling lots with an area of 750 sq.m. were left. “There is no question that the remaining 750 sq.m. dangling lots were not expropriated by petitioner. The RTC and the CA, however, agreed that Unson was entitled to just compensation with respect to the said  portions.” And, if the trial court, in arriving at the amount of just compensation already factored in the consequential damages suffered by the owner for the unusable 750 sq.m. lots, it would run against the equitable proscription of unjust enrichment for the owner to still retain ownership over it. 11.  National Power Corporation v. Heirs of Macabangkit Sangkay , 656 SCRA 60 (2011)41 And what is inverse condemnation? How does it differ from a claim for damages? The Court had occasion to discuss the same in another case involving the National Power Corporation and its tunnels  bored deep under the lands of unsuspecting owners. The Court explained that an “action to recover just compensation from the State or its expropriating agency differs from the action for damages. The former, also known as inverse condemnation, has the objective to recover the value of property taken in fact by the go vernmental defendant, even though no formal exercise of the power of eminent domain has been attempted by the taking agency. . . . On the other hand, the latter action seeks to vindicate a legal wrong through damages, which may be actual, moral, nominal, temperate, liquidated, or exemplary. When a right is exercised in a manner not conformable with the norms enshrined in Article 19 and like provisions on human relations in the Civil  Code, and the exercise results to the damage of another, a legal wrong is committed and the wrongdoer  is held responsible. The two actions are radically different in nature and purpose. The action to recover   just compensation is based on the Constitution while the action for damages is predicated on statutory enactments. Indeed, the former arises from the exercise by the State of its power of eminent domain against private property for public use, but the latter emanates from the transgression of a right. The fact that the owner rather than the expropriator brings the former does not change the essential nature of the suit as an inverse condemnation, for the suit is not based on tort, but on the constitutional prohibition against the taking of property without just compensation. It would very well be contrary to the clear  language of the Constitution to bar the recovery of just compensation for private property taken for a  public use solely on the basis of statutory prescription.” For Legal Research purposes, the Court referenced Corpus Juris Secundum (29A CJS, Eminent   Domain, §381): “Inverse condemnation is a cause of action against a governmental defendant to recover  the value of property which has been taken in fact by the governmental defendant, even though no formal exercise of the power of eminent domain has been attempted by the taking agency. While the typical taking occurs when the government acts to condemn property in the exercise of its power of eminent domain, the entire doctrine of inverse condemnation is predicated on the proposition that a taking may occur without such formal proceedings. The phrase ‘inverse as a common understanding JURISTS REVIEW Ccondemnation,’ ENTER of that phrase would suggest, simply describes an action that is the ‘inverse’ or ‘reverse’ of a condemnation proceeding.” BAR REVIEW 2017 M. CONTRACT CLAUSE R B G The weakest guarantee in the Bill of Rights, it is almost seen as a relic from days past where it must have had its grandeur. The Clause easily yields to the demands of police power such that the occasions in which it may prevail could more be the exception than the rule. “The impairment clause is no longer  41 A Library Of Liberties vis-à-vis An Arsenal Of Arms  See also National Power Corporation v. Salud ares, 671 SCRA 266 (2012) R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 71 of 99 inviolate; in fact, there are many who now believe that is an anachronism in the present-day society.”42  Nevertheless, “[w]hile it is true that the police power is superior to the impairment clause, the principle will apply only where the contract is so related to the public welf are that it will be considered congenitally susceptible to change by the legislature in the interest of the greater number. Most present-day contracts are of that nature.”43 Insofar as the taxing power is concerned, it has also been observed that: “In truth, the Contract Clause has never been thought as a limitation on the exercise of the State’s power of taxation save only where a tax exemption has been granted for a valid consideration.”44  And, that the contractual tax exemptions, in the real sense of the term and where the non-impairment clause of the Constitution can rightly be invoked, are those agreed to by the taxing authority in contracts, such as those co ntained in  government bonds or debentures , lawfully entered into by them under enabling laws in which the government, acting in its private capacity, sheds its cloak of authority and waives its governmental immunity. Tax exemptions of this kind may not be revoked without impairing the obligations of contracts. These contractual tax exemptions, however, are not to be confused withtax exemptions granted under   franchises. A franchise partakes the nature of a grant which is beyond the purview of the non-impairment clause of the Constitution.45 In Lepanto Consolidated Mining Co. v. WMC Resources Int’l. Pty. Ltd., 507 SCRA 315 (2006), the Court had occasion to apply the Contract Clause. It held that Section 40 of the Philippine Mining Act of  1995 requiring the approval of the President with respect to assignment or transfer of FTAAs, if made applicable retroactively to the Columbio FTAA, would be tantamount to an impairment of the obligations under said contract as it would effectively restrict the right of the parties thereto to assign or transfer their  interests in the said FTAA. N. POVERTY AND LEGAL PROTECTION The Constitution guarantees free access to the courts and quasi-judicial bodies, and likewise mandates that adequate legal assistance shall not be denied to any person by reason of poverty. This may mean that those who cannot afford filing fees may get some form of accommodation, such as being allowed to litigate as paupers, thereby being exempted from the payment of filing fees. Can this be availed of a  juridical person? In Re: Query of Mr. Roger C. Prioreschi re Exemption from Legal and Filing Fees of  the Good Shepherd Foundation, Inc., 596 SCRA 401 (2009), the Court held that only individuals may  be granted exemption from filing fees as indigents – foundations, even if serving indigents, are not entitled. “The clear intent and precise language of the aforequoted provisions of the Rules of Court  indicate that only a natural party litigant  may be regarded as an indigent litigant.” Accordingly, that “the Good Shepherd Foundation, Inc. is working for indigent C and underprivileged people is of no moment. JURISTS REVIEW ENTER Clearly, the Constitution has explicitly premised the free access clause on a person’s poverty, a condition that only a natural person can suffer. ” BAR REVIEW 2017 R B G 42  Juarez v. Court of Appeals, 214 SCRA 475 (1992) 43  National Development Company v. Philippine Veterans Bank , 192 SCRA 257 (1990) 44 45 Tolentino v. Secretary of Finance , 235 SCRA 630 (1994) A Library Of Liberties  Manila Electric Company vis-à-vis An v. Province of Laguna, 306 SCRA 750 (1999) Arsenal Of Arms R B GOROSPE O. CONSTITUTIONAL LAW Notes, Updates and Teasers Page 72 of 99 R IGHTS OF SUSPECTS A basket of rights that was refused recognition or parsimoniously applied by the Court in the past has now grown and expanded to afford protection greater than the text of the original. While the Supreme Court in the not-too-distant past refused to apply the Miranda doctrine46 in People v. Jose, 37 SCRA 450 (1971), and likewise did not recognize any retroactive application of the 1973 Constitution version of the  Miranda warnings,47 the same is now part of the easily-forgotten past. The doctrine has become firmly entrenched in law and jurisprudence, even constitutionalized at that.48 In regard to expanding the rights of suspects, take note of the newly minted Anti-Torture Act of 2009 (R.A. No. 9745 [2009]). It is meant to implement the guarantees in Section 12 of the Bill of Rights against torture and other related acts. It adds the right, among others, to be informed of one’s right to demand physical examination by an independent and competent doctor of his/her own choice, which may  be waived, provided it is in writing and in the presence of counsel.49 The rights given to persons somehow thought of having committed a crime or those under custodial investigation – a.k.a.,  suspects  – are meant to ensure that they are afforded the chance to exercise whatever protection is due them in any criminal prosecution. Thus, they are given the opportunity to exercise their privilege not to incriminate themselves, otherwise there would be no point keeping one’s silence at trial if the damning statements had already been secured during the investigation. Then, to make sure that the person under investigation knows what that privilege of silence is all about, he is also given a chance to have the assistance of a lawyer. He may waive his rights, including the assistance of counsel,  provided the same is done in the presence of a lawyer. In the language of the Fundamental Law, the lawyer must be competent and independent. He must be present from beginning to end, and his loyalty to the cause of his client must be beyond reproach.50 But when do the  Miranda Rights  become available? The Court has come up with apparently conflicting rulings. In People v. Marra, 236 SCRA 565 (1994), and People v. Ting Lan Uy, Jr., 475 46 47  Miranda v. Arizona, 384 U.S. 436 (1966)  Magtoto v. Manguera, 63 SCRA 4 (1975) 48  In 2000, the U.S. Supreme Court revisited Miranda and came up with a declaration that Miranda is of constitutional moorings, a “constitutional decision,” which could not therefore be overturned by Congress as it represents the Court’s reading of what the Constitution requires, at minimum. ( Dickerson v. United States, 530 U.S. 428 [2000]) 49  SEC. 12. Right to Physical, M edical and Psychological Examination. – Before and after interrogation, every person arrested, detained or under custodial investigation shall have the right to be informed of his/her right to demand physical examination by an independent and competent doctor of his/her own choice. If such person cannot afford the services of his/her own doctor, he/she shall  be provided by the State with a competent and independent doctor to conduct physical examination. The State shall endeavor to provide URISTS EVIEW ENTER the victim with psychological evaluation if available under the circumstances. If the person arrested is a female, she shall be attended to preferably by a female doctor. Furthermore, any person arrested, detai ned or under custodial in vestigation, including his/her immediate family, shall have the right to immediate access to proper and adequate medical treatment. J R C BAR REVIEW * * * * * 2017 Any person who does not wish to avail of the rights un der this pr ovision may knowingly and voluntarily waive such rights in writing, executed in the presence and assistance of his/her counsel. 50 R B G  A awyer who notarizes the sworn statement of a suspect whom he assis ts seriously compromises his independen ce, because by so doing, he vouches for the regularity of the circumstances surrounding the taking of the sworn statement by the police. ( People v.  Labtan, 320 SCRA 140 [1999]) Also, lawyers engaged the police are generally suspect,vis-à-vis as in many areas, rel ationshipOf between lawyers, and law en forcement AbyLibrary Of Liberties  AntheArsenal Arms authorities can be symbiotic. ( People v. Deniega, 251 SCRA 626 [1995]) R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 73 of 99 SCRA 248 (2005), the Court held, in effect, that the rights would only be available if a person has already  been arrested and in custody. However, in this case of People v. Reyes, 581 SCRA 691 (2009), we find this line: “The mantle of protection afforded by the above-quoted constitutional provision covers the  period from the time a person is taken into custody for the investigation of his possible participation in the commission of a crime or from the time he is singled out as a suspect in the commission of the offense although not yet in custody.” Given the historical background and the rationale for the Miranda Rights, however, it would seem to be the better view that the rights kick in the moment a person has already  become the suspect , or the one singled out for investigation for possible participation in the crime under  scrutiny. The rights are precisely intended to afford him the opportunity to avail of his right against selfincrimination at a time when he might not know any better – the Miranda Doctrine  was precisely intended to make the hapless suspect realize that he has t he right not to answer the questions asked by the police which are precisely intended to elicit incriminating answers. Then, also, the lawyer should not simply be a lawyer in form. He must also be so in substance, areal  lawyer and not one who took up Law but never made it beyond the bar examinations.51  Moreover, nobody could take the place of a lawyer. In People v. Ordoño, 334 SCRA 673 (2000), since the place had no lawyers, the statement of the accused was taken in the presence of Parish Priest, Municipal Mayor, Chief of Police, other police officers, plus the wife and mother of the accused. The Court held the confession inadmissible. Even as it commended the police, it held that there is no substitute for lawyers. “To the credit of the police, they requested the presence of the Parish Priest and the Municipal Mayor  of Santol as well as the relatives of the accused to obviate the possibility of coercion, and to witness the voluntary execution by the accused of their statements before the police. Nonetheless, this did not cure in any way the absence of a lawyer during the investigation.” R.A. 7438 does not propose that they appear in the alternative or as a substitute for counsel. How about media interviews? In People v. Endino, 352 SCRA 307 (2001), the Court advised trial courts not to simplistically admit such confessions. “[B]ecause of the inherent danger in the use of  television as a medium for admitting one’s guilt, and the recurrence of this phenomenon in several  cases, it is prudent that trial courts are reminded that extreme caution must be taken in further  admitting similar confessions . For in all probability, the police, with the connivance of unscrupulous media practitioners, may attempt to legitimize coerced extrajudicial confessions and place them beyond  the exclusionary rule by having an accused admit an offense on television. Such a situation would be detrimental to the guaranteed rights of the accused and thus imperil our criminal justice system.”52 With the foregoing pronouncements of the Court relative to admissions or confessions made to media men, should it not also consider having the right to be advised of one’s Miranda rights – including the right to counsel – to be done prior  to any interviews made by the media? The right to counsel and the right not to incriminate oneself might become useless if the printCand broadcast reporters are allowed to make JURISTS REVIEW ENTER the interviews even before the suspect had the opportunity to think for himself in a voluntary and an informed manner whether to speak or not. This element of knowing and voluntary waiver may only be safeguarded – in the spirit of the Miranda doctrine – through the assistance of counsel timely made.53 BAR REVIEW 2017 51 52  People v. Basay, 219 SCRA 404 (1993) R B G  People v. Morada, 307 SCRA 362 (1999), also carried the same message that media men must not be acting for police. A Library Of Liberties  AnRule Arsenal Of Arms  See Rene B. Gorospe, “Beyond Stonehill  : Extending vis-à-vis the Exclusionary to Uncounselled Media Confessions,” UST Law  Review, Vol. XLVIII (January-December 200 4), at 131 -190. ( http://ustlawreview.com/pdf/vol.XLVIII/Articles/Beyond_Stonehill.pdf) 53 R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 74 of 99 1.  People v. Guillen, 710 SCRA 533 (2013) Could silence and passivity at a t ime when the complainant-victim is confronting the suspect following his arrest be taken as evidence of guilt? The Court said, no. “Clearly, when appellant remained silent when confronted by the accusation of “AAA” at the police station, he was exercising his basic and fundamental right to remain silent. At that stage, his silence should not be taken against him. Thus, it was error on the part of the trial court to state that appellant’s silence should be deemed as implied admission of guilt. In fact, this right cannot be waived except in writing and in the presence of counsel and any admission obtained in violation of this rule shall be inadmissible in evidence.” 2.  People v. Lauga, 615 SCRA 548 (2010) In People v. Malngan, 503 SCRA 294 (2006), the Court considered the confessions made to a  barangay chairman inadmissible since there was no Miranda Warning  given prior to questioning. The Court observed: “ Arguably, the barangay tanods, including the Barangay Chairman, in this particular  instance, may be deemed as law enforcement officer for purposes of applying Article III, Section 12(1) and (3), of the Constitution. When accused-appellant was brought to the barangay hall in the morning of 2 January 2001, she was already a suspect, actually the only one, in the fire that destroyed several houses as well as killed the whole family of Roberto Separa, Sr. She was, therefore, already under  custodial investigation and the rights guaranteed by Article III, Section 12 (1), of the Constitution should have already been observed or applied to her.”54 Taking the teachings and spirit of Malngan further, the Court held in  Lauga that Bantay Bayan members or voluntary barangay-based anti-crime or neighborhood watch groups should similarly be covered by the Miranda Doctrine. The Court observed that they are recognized by the local government units to perform functions relating to the preservation of peace and order at the barangay level. Thus, on the authority to conduct a custodial investigation, any inquiry they make has the color of a state-related function and objective insofar as the entitlement of a suspect to his constitutional rights  provided for under Article III, Section 12 of the Constitution. Accordingly, any extrajudicial confession taken without a counsel is inadmissible in evidence. Oh, well, domino method of adjudication. 3.  People v. Pepino, 779 SCRA 170 (2016) In regard to police line-ups, the Court here said that “[a]s a rule, a police lineup is not  part of the custodial investigation; hence, the right to counsel guaranteed by the Constitution cannot yet be invoked at this stage. The right to be assisted by counsel attaches only during custodial investigation and cannot 54 J R C R 2017  In People v. Ulit , 423 SCRA 374 (200 4), the Bara ngayEVIEW chairman ordered the barangay tanods to “invite and bring” the accused URISTS ENTER to the barangay hall, and thereafter asked the accused if he raped the complainant. The suspect admitted and executed a sworn statement to that effect. The Court said that the uncounselled sworn statement of the accused was considered admissible because he was not then under arrest nor under custodial investigation. “The exclusionary rule is premised on the presumption that the defendant is thrust into EVIEW procedures where the potentiality for compulsion, physical an unfamiliar atmosphere and runs through menacingAR police interrogation and psychological, is forcefully apparent. As intended by the 1971 Constitutional Convention, this covers ‘in vestigation conducted by  police authorities which will include investigations conducted by the municipal police, the PC and the NBI and such other police agencies in our government.’ The b arangay chairman is not deemed a law enforcement officer for purposes of applying Section 12(1) and (3) of  Article III of the Constitution. Under these circumstances, it cannot be successfully claimed that the appellant’s statement before the  barangay chairman is inadmissible.” ( Both Ulit   and Samus were en banc decisions.) B R B G In People v. To maquin, 435 SCRA 23 (2004), the Court noted that a barangay captain “is called upon to enforce the law and vis-à-vis A Library Ofand Liberties  An Arsenal Of Arms ordinances in his barangay and ensure peace order at all times.” As such, he could not be considered as an i ndependent counsel for  the purpose of assisting a suspect. R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 75 of 99  be claimed by the accused during identification in a police lineup.” In his dissenting opinion, Justice Leonen had this to say: “Premature media exposure of suspected criminals affects the integrity of the identification made by a witness. Law enforcers fail to prevent undue influence and suggestion when they  present suspects to the media before the actual identification by a witness. An irregular out-of-court identification taints any subsequent identification made in court.” Thus, “when the suggestiveness is  principally due to a premature media presentation of the accused coupled with the accusation by law enforcers, it is reasonable to assume that the subsequent identification is already tainted.” P. R IGHTS OF THE ACCUSED Once a person under investigation is found to be probably guilty of the commission of a crime, he is charged in court thereby becoming an accused , entitled to another set of rights, from the presumption of innocence to an opportunity to avail of momentary liberty through bail, to being informed of the charges, to setting out his defense by himself or counsel, facing his accusers and testing their credibility, speedy, impartial and public trial, and compulsory process for the production of witnesses and evidence in his behalf. Through all of these, he is assured of the guarantee of being heard before judgment is rendered.55 With regard to bail, the Court said in Leviste v. Court of Appeals, 615 SCRA 619 (2010), that “[b]ail acts as a reconciling mechanism to accommodate both the accused’s interest in pretrial liberty and society’s interest in assuring the accused’s presence at trial.” Otherwise stated, “[a]n erroneously convicted accused who is denied bail loses his liberty to pay a debt to society he has never owed.” Now, as regards potential extraditees, take note of the metamorphosis. In Government of the United States of   America v. Purganan, 389 SCRA 623 (2002), the majority ruled that a potential extraditee is not entitled to notice and hearing before the issuance of a warrant of arrest. Confronted anew with the question in Government of Hong Kong Special Administrative Region v. Olalia, Jr., 521 SCRA 470 (2007), the Court had a change of mind. It noted that the modern trend in public international law is the primacy  placed on the worth of the individual person and the sanctity of human rights, citing the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. Fundamental among the rights enshrined in the International Covenant on Civil and Political Rights are the rights of  every person to life, liberty, and due process. Revisiting Purganan, the Court reasoned out that if bail can  be granted in deportation cases, it saw no justification why it should not also be allowed in extradition cases – clearly, the right of a prospective extraditee to apply for bail must be viewed in the light of the various treaty obligations of the Philippines concerning respect for the promotion and protection of  human rights. It further explained that while extradition is not a criminal proceeding, it is characterized JURISTSofRliberty CENTER EVIEW  by the following: (a) it entails a deprivation on the part of the potential extraditee and (b) the means employed to attain the purpose of extradition is also “the machinery of criminal law”  –  obviously, an extradition proceeding, while ostensibly administrative, bears all earmarks of a criminal BAR 2017of more than two (2) years is a serious EVIEWperiod  process . By any standard, detention for an R extended deprivation of a potential extraditee’s fundamental right to liberty. Also, while the Philippines’ extradition law does not provide for the grant of bail to an extraditee, however, there is no provision prohibiting him or her from filing a motion for bail, a right to due process under the Constitution. R B G vis-à-vis A Library Of Arsenal Of Arms  In People v. Alcanzado, 428 SCRA 681Liberties (20 04), the Court held that  An i f a demurrer to evidence with leave of court is denied, the trial court should give the accused the opportunity to present his evidence. It cannot simply proceed to convict him. 55 R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 76 of 99  Nevertheless, the Court held that the applicable standard of due process for potential extraditees seeking bail should not be the same as that in criminal proceedings – in the latter, the standard of due  process is premised on the presumption of innocence of theaccused, in the former, the assumption is that such extraditee is a fugitive from justice. Thus, the prospective extraditee bears the onus probandi of  showing that he or she is not a flight risk and should be granted bail. An extradition proceeding being sui  generis, the standard of proof required in granting or denying bail can neither be the proof beyond reasonable doubt in criminal cases nor the standard of proof of preponderance of evidence in civil cases. The potential extraditee must prove by “clear and convincing proof” that he is not a flight risk and will abide with all orders and processes of the extradition court. With regard to the question as to when the presumption of innocence comes to an end, t he Court held in Trillanes IV v. Pimentel, Sr., 356 SCRA 471 (2008), and Re: Conviction of Judge Adoracion G.  Angeles, RTC, Br. 121, Caloocan City in Criminal Cases Nos. Q-97-69655 to 56 for Child Abuse, 543 SCRA 196 (2008), that such presumption only comes to an end upon final conviction. However, in  Leviste v. Court of Appeals, 615 SCRA 650 (2010), and reiterated in Qui v. People, 682 SCRA 94 (2012), the Court declared: “After conviction by the trial court, the presumption of innocence terminates and, accordingly, the constitutional right to bail ends.” 1.  Enrile v. Sandiganbayan (Third Division) , 767 SCRA 282 (2015) In this case, the petitioner, more than 90 years of age, and of frail health, was charged with the non bailable offense of plunder. He petitioned the Court that he be allowed to post bail in view of the peculiar  his circumstances – poor health, age, and voluntary surrender. The Court obliged. On the right to bail, the Court said: “It is worthy to note that bail is not granted to prevent the accused from committing additional crimes. The purpose of bail is to guarantee the appearance of the accused at the trial, or whenever so required by the trial court. . . . [B]ail acts as a reconciling mechanism to accommodate both the accused’s interest in his provisional liberty before or during the trial, and the society’s interest in assuring the accused’s presence at trial.” The Court then went on to hold that admission to bail in otherwise non-bailable offenses is subject to judicial discretion. In the case of the  petitioner, the Court took note of his poor health as a justification in his admission to bail. The Court held: “In our view, his social and political standing and his having immediately surrendered to the authorities upon his being charged in court indicate that the risk of his flight or escape from this  jurisdiction is highly unlikely. His personal disposition from the onset of his indictment for plunder, formal or otherwise, has demonstrated his utter respect for the legal processes of this country. We also do not ignore that at an earlier time many years ago when he had been charged with rebellion with murder and JURISTS REVIEW ENTER multiple frustrated murder, he already evinced a similar C personal disposition of respect for the legal  processes, and was granted bail during the pendency of his trial because he was not seen as a flight risk. With his solid reputation in both his public and his private lives, his long years of public service, and BAR REVIEW 2017bail.” Also, “[t]he currently fragile state history’s judgment of him being at stake, he should be granted of Enrile’s health presents another compelling justification for his admission to bail.” Accordingly, the Court found that there was no question at all that Enrile’s advanced age and ill health required special medical attention. R B G The Court further declared: “Bail for the provisional liberty of the accused, regardless of the crime charged , should beA allowed the merits the charge, provided his continued vis-à-vis Library independently Of Liberties of  An of Arsenal Of Arms incarceration is clearly shown to be injurious to his health o r to endanger his life. Indeed, denying him bail R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 77 of 99 despite imperiling his health and life would not serve the true objective of preventive incarceration during the trial.” 2.  People v. Valdez , 776 SCRA 672 (2015) Bail is a matter of right, except when the offense is punishable byreclusion perpetua and the evidence of guilt is strong. How should the term “ punishable” be construed? The Court said: “In Our mind, the term “ punishable” should refer to prescribed , not imposable, penalty.” The Court explained: “The RPC provides for an initial penalty as a general prescription for the felonies defined therein which consists of a range of period of time. This is what is referred to as the ‘prescribed penalty .’ For instance, under Article 249 of the RPC, the prescribed penalty for homicide is reclusion temporal which ranges from 12 years and 1 day to 20 years of imprisonment. Further, the Code provides for attending or modifying circumstances which when present in the commission of a felony affects the computation of the penalty to be imposed on a convict. This penalty, as thus modified, is referred to as the ‘imposable penalty .’” The Court further pointed out that “[i]t would be the height of absurdity to deny Valdez the right to bail and grant her the same only after trial if it turns out that there is no complex crime committed. Likewise, it is unjust for Us to give a stamp of approval in depriving the accused person’s constitutional right to bail for allegedly committing a complex crime that is not even considered as inherently grievous, odious and hateful. To note, Article 48 of the RPC on complex crimes does not change the nature of the constituent offenses; it only requires the imposition of the maximum  period of the penalty prescribed by law. When committed through falsification of official/public documents, the RPC does not intend to classify malversation as a capital offense.” 3.  Re: Petition for Radio and Television Coverage of the Multiple Murder Cases Against   Maguindanao Governor Zaldy Ampatuan , 652 SCRA 1 (2011)56 In  Re: Live TV and Radio Coverage of the Hearing of President Corazon C. Aquino’s Libel Case57 and Re: Request Radio-TV Coverage of the Trial in the Sandiganbayan of the Plunder Cases Against  the Former President Joseph E. Estrada, 360 SCRA 248 (2001), the Supreme Court did not allow for  live radio-TV coverage of the trials involved therein. Now, in regard to the so-called Maguindanao Massacre where there were 57 victims and 197 accused, the Court is being asked once more to allow for  such live broadcast of the proceedings. Would the request fare any better. Yes, Pro hac vice. Here, the Court highlighted the delicate balance between seemingly competing yet certainly complementary rights – the right of the accused to a fair trial free from prejudice caused by undue  publicity, and the right of the people to know what is happening inside the courthouse. The Court explained: “The rationale for an outright total prohibition was shrouded, as it is now, inside the comfortable cocoon of a fearedJspeculation noCscientific URISTS Rwhich EVIEW ENTER study in the Philippine setting confirms, and which fear, if any, may be dealt with by safeguards and safety nets under existing rules and exacting regulations . In this day and age, it is about time to craft a win-win situation  that shall not compromise rights in the criminal of justice, sacrifice press freedom and allied BARadministration REVIEW 2017 rights, and interfere with the integrity, dignity and solemnity of judicial proceedings. Compliance with regulations, not curtailment of a right, provides a workable solution to the concerns raised in these administrative matters, while, at the same time, maintaining the same underlying principles upheld in the two previous cases.” The Court further stated that “the right of an accused to a fair trial is not R 56 57 B G  This was subsequently reconsidered the Court in itsvis-à-vis 23 October  An 2012 resolution. A Library OfbyLiberties Arsenal  En Banc Resolution of October 22, 1991. Of Arms R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 78 of 99 incompatible to a free press, that pervasive publicity is not per se prejudicial to the right of an accused to a fair trial, and that there must be allegation and proof of the impaired capacity of a judge to render  a bias-free decision. Mere fear of possible undue influence is not tantamount to actual prejudice resulting in the deprivation of the right to a fair trial.” Making use of the totality of circumstances test , the Court paved the way, pro hac vice, for the live  broadcast of the proceedings subject of the case. “One apparent circumstance that sets the Maguindanao Massacre cases apart from the earlier cases is the impossibility of accommodating even the parties to the cases – the private complainants/families of the victims and other witnesses – inside the courtroom.” The Court explained that “[e]ven before considering what is a ‘reasonable number of the public’ who may observe the proceedings, the peculiarity of the subject criminal cases is that the proceedings already necessarily entail the presence of hundreds of families. It cannot be gainsaid that the families of the 57 victims and of the 197 accused have as much interest, beyond mere curiosity, to attend or monitor the  proceedings as those of the impleaded parties or trial participants. It bears noting at this juncture that the  prosecution and the defense have listed more than 200 witnesses each. The impossibility of holding such  judicial proceedings in a courtroom that will accommodate all the interested parties, whether private complainants or accused, is unfortunate enough. What more if the right itself commands that a reasonable number of the general public be allowed to witness the proceeding as it takes place inside the courtroom. Technology tends to provide the only solution to break the inherent limitations of the courtroom, to satisfy the imperative of a transparent, open and public trial.” The Court then proceeded to lay down certain guidelines toward addressing the concerns mentioned in Aquino and Estrada. Towards the end the Court concluded: “Indeed, the Court cannot gloss over what advances technology has to offer in distilling the abstract discussion of key constitutional precepts into the workable context. Technology per se has always been neutral. It is the use and regulation thereof that need fine-tuning. Law and technology can work to the advantage and furtherance of the various rights herein involved, within the contours of defined guidelines.”58 On motion for reconsideration, the Court modified its earlier resolution on the issue and said, inter  alia: “In a constitutional sense, public trial is not synonymous with publicized trial. The right to a public trial belongs to the accused. The requirement of a public trial is satisfied by the opportunity of the members of the public and the press to attend the trial and to report what they have observed. The accused’s right to a public trial should not be confused with the freedom of the press and the public’s right to know as a justification for allowing the live broadcast of the trial. The tendency of high profile case like the subject case to generate undue publicity with its concomitant undesirable effects weights heavily against broadcasting the trial. Moreover, the fact that the accused has legal remedies after the fact is of no moment, since the damage has been done and may be irreparable. It must be pointed out that the JURISTS REVIEW ENTER fundamental right to due process of the accused cannot beC afforded after the fact but must be pro tected at the first instance.” How about the need to accommodate who may be personally interested to witness the BARthose REVIEW 2017  proceedings? “To address the physical impossibility of accommodating the large number of interested  parties inside the courtroom in Camp Bagong Diwa, it is not necessary to allow the press to broadcast the proceedings here and abroad, but the Court may allow the opening of closed-circuit viewing areas outside the courtroom where those who may be so minded can come and watch the proceedings. This R B G vis-à-vis A Library Ofuse Liberties  An Arsenal Of Arms  Have you noticed how you have made of modern means of communications and entertainment as tools in your study of law, such as in internet research not only for cases but also for digests, reliable or otherwise? 58 R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 79 of 99 out-of-court, real-time viewing grants to a larger audience the oppo rtunity to monitor the proceedings as if they were inside the trial court but at the same time obviates the massive publicity entailed in media  broadcasting. This is similar to the procedure adopted by this Court in allowing members of the public to watch its oral arguments at a viewing area outside of the Session Hall where a large monitor projects the images and sounds from inside the Session Hall in real time.” The Court then provided the following new guidelines for the audio-visual recording and streaming of the video coverage: a. An audio-visual recording of th e Maguindanao massacre cases may be made both for documentary purposes and for transmittal to specified closed-circuit viewing areas: (i) outside the courtroom, within the Camp Bagong   Diwa’s premises; and (ii) selected trial courts in Maguindanao, Koronadal, South Cotabato, and General Santos City where the relatives of the accused and the victims reside. Said trial courts shall be identified by the Office of  the Court Administrator. These viewing areas shal l be under the control of the tr ial court judges involved, subject to this Court’s supervision.  b. The viewing area will be installed to accommodate the public who want to observe the proceedings within the Camp Bagong Diwa premises. The streaming of this video coverage within the different court premises in Mindanao will be installed so that the relatives of the parties and the interested public can watch the proceedings in real time. c. A single fixed compact camera shall be installed inconspicuously inside the courtroom to provide a single wide-angle full-view of the sala of the trial court. No panning and zooming shall be allowed to avoid unduly highlighting or downplaying incidents in the proceedings. The camera and the necessary equipment shall be operated and controlled only by a duly designated official or employee of the Supreme Court. d. The transmittal of the audio-visual recording from inside the courtroom to the closed-circuit viewing areas shall be conducted in such a way that the least physical disturbance shall be ensured in keeping with the dignity and solemnity of the proceedings. e. The Public Information Office and the Office of the Court Administrator shall coordinate and assist the trial courts involved on the physical set-up of the camera and equipment. f. The original audio-recording shall be deposited in the National Museum and the Records Management and Archives Office for the preservation and exhibition in accordance with law. g. The audio-visual recording of the proceedings and its transmittal shall be made under the control of the trial court which may issue supplementary directives, as th exigency requires, subject to this Court’s supervision. h. In all cases, the witnesses should be excluded from watching the proceedings, whether inside the courtroom or in the designated viewing areas. The Presiding Judge shall issue the appropriate orders to insure compliance with this directive and for the imposition of appropriate sanctions for its violation. 4. Go v. People, 677 SCRA 213 (2012) This involves a prosecution for Other Deceits  brought by a foreign national (Cambodian). The Cambodian complainant was able to attend first hearing but then was subsequently unable to return. The JURISTS REVIEW Che ENTER Prosecution wanted to take his deposition in Cambodia since was allegedly a frail old businessman who was then being treated for lung infection at the Cambodia Charity Hospital in Laos, Cambodia and that, upon doctor’s advice, he could not make the long travel to the Philippines. The trial court granted such BAR REVIEW request but the RTC annulled the MeTC order while the 2017 Court of Appeals sided with the MeTC. The High Tribunal disagreed with the appellate court. “The examination of witnesses must be done orally  before a judge in open court. This is true especially in criminal cases where the Constitution secures to the accused his right to a public trial and to meet the witnessess against him face to face. The requirement is the ‘safest and most satisfactory method of investigating facts’ as it enables the judge to test the witness’ credibility through his manner and deportment while testifying. It is not without exceptions, A Library Of Liberties vis-à-vis An Arsenal Of Arms however, as the Rules of Court recognizes the conditional examination of witnesses and the use of their  R B G R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 80 of 99 depositions as testimonial evidence in lieu of direct court testimony.” And, in that regard, “for purposes of taking the deposition in criminal cases, more particularly of a prosecution witness who would forseeably be unavailable for trial, the testimonial examination should be made before the court, or at least  before the judge, where the case is pending as required by the clear mandate of Section 15, Rule 119 of  the Revised Rules of Criminal Procedure.” Accordingly, “[s]ince the conditional examination of a prosecution witness must take place at no other place than the court where the case is pending, the RTC properly nullified the MeTC's orders granting the motion to take the deposition of Li Luen Ping before the Philippine consular official in Laos, Cambodia.” The Court further noted: “Certainly, to take the deposition of the prosecution witness elsewhere and not before the very same court where the case is pending would not only deprive a detained accused of his right to attend the proceedings but also deprive the trial judge of the opportunity to observe the prosecution witness' deportment and properly assess his credibility, which is especially intolerable when the witness’ testimony is crucial to the prosecution's case against the accused.” It also explained that “[t]here is a great deal of difference between the face-to-face confrontation in a public criminal trial in the presence of the presiding judge and the cross-examination of a witness in a foreign  place outside the courtroom in the absence of a trial judge.” Would it make any difference if it is the prosecution or the accused seeking deposition? “[W]here it is the prosecution that seeks to depose the complaining witness against the accused, the stringent  procedure under Section 15, Rule 119 cannot be ignored without violating the constitutional rights of  the accused to due process.” How about if it is the accused seeking that form of accommodation? “It must be emphasized that while the prosecution must provide the accused every opportunity to take the deposition of witnesses that are material to his defense in order to avoid charges of violating the right of  the accused to compulsory process, the State itself must resort to deposition-taking sparingly if it is to guard against accusations of violating the right of the accused to meet the witnesses against him face to face. Great care must be observed in the taking and use of depositions of prosecution witnesses to the end that no conviction of an accused will rely on ex parte affidavits and depositions.” Q. WRITS OF HABEAS CORPUS, AMPARO AND K ALIKASAN The privilege of the writ of habeas corpus  affords one who may be unlawfully detained an opportunity to have an expeditious inquiry into the nature of the deprivation of liberty such that if there is no legal basis for the same then he should be set free. It also affords a remedy in custody fights in the domestic battle grounds to determine who may have better right over a person who could not take care of his own affairs. However, “[t]he mere loss or destruction of the records of a criminal case subsequent to conviction of the accused will Jnot render R theEVIEW judgment of conviction void, nor will it warrant the CENTER URISTS release of the convict by virtue of a writ of habeas corpus. The proper remedy is the reconstitution of   judicial records which is as much a duty of the prosecution as of the defense.”59 2017 AR REVIEW Years before the writ of amparo, inBSubayno v. Enrile, 145 SCRA 282 (1986), the Supreme Court said that the writ of habeas corpus may not be used as a means of obtaining evidence on the whereabouts of a person. Then, in Martinez v. Mendoza, 499 SCRA 234 (2006), the Court held that the grant of relief  in a habeas corpus proceeding is not predicated on the disappearance of a person, but on his illegal detention. It may not be used as a means of obtaining evidence on the whereabouts of a person, or as a R 59 A Library Of Liberties  Feria v. Court of Appeals, 325 SCRA 525 (2000) B G vis-à-vis An Arsenal Of Arms R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 81 of 99 means of finding out who has specifically abducted or caused the disappearance of a certain person. When forcible taking and disappearance – not arrest and detention – have been alleged, the proper remedy is not habeas corpus proceedings, but criminal   investigation and proceedings. That was then. Now, we have also the writ of amparo. Since the privilege of the writ of habeas corpus  does not reach out to cases where the fact of  detention is denied, or the identity of those keeping a person, or his whereabouts are uncertain, the Supreme Court came up with the Writ of Amparo.60 This is a remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a  public official or employee, or of a private individual or entity. It covers extralegal killings  and enforced  disappearances  or threats thereof. In contrast to the writ of habeas corpus, under the Writ of Amparo it is not enough for the respondent to simply disclaim any knowledge of the aggrieved person subject of  the writ, or the surrounding circumstances about the latter. He is also duty bound to state the steps or  actions taken to determine the fate or whereabouts of said person and the person o r persons responsible for the threat, act or omission. He is also bound to disclose all relevant information in his possession  pertaining to the threat, act or omission against the aggrieved person, as well as to state other matters relevant to the investigation, its resolution and the prosecution of the case.61 The writ of amparo is an extraordinary and independent remedy that provides rapid judicial relief, as it partakes of a summary  proceeding that requires only substantial evidence to make the appropriate interim and permanent reliefs available to the petitioner. It is not an action to determine criminal guilt requiring proof beyond reasonable doubt, or liability for damages requiring preponderance of evidence, or administrative responsibility requiring substantial evidence that will require full and exhaustive proceedings. Rather, it serves both preventive and curative roles in addressing the problem of extrajudicial killings and enforced disappearances. It is preventive in that it breaks the expectation of impunity in the commission of these offenses, and it is curative in that it facilitates the subsequent punishment of perpetrators by inevitably leading to subsequent investigation and action.62 Further, since the fundamental function of the writ of  amparo  is to cause the disclosure of details concerning the extrajudicial killing or the enforced disappearance of an aggrieved party, if the whereabouts of an individual were never hidden, there would  be no need for the issuance of the privilege of the writ of amparo.63 Among the significant characteristics and features of the remedy of writ ofamparo are the following: (a) it does not determine criminal, civil or administrative liability; (b) it simply determines responsibility and accountability ;64 (c) it allows for flexibility in regard to rules of evidence, adopting the doctrine of  totality of evidence in that courts consider all the pieces of evidence adduced in their totality, and consider  60 61 62  Effective 24 October 2007, pursuant to A.M. No. 07-0-12-SC (25 September 2007). J R C URISTS ENTER  See also the Rule on the Writ of Habeas Data discussedEVIEW in the section on Searches and Seizures.  Rodriguez v. Ma capagal-Arro yo, 660 SCRA 84 (2011), citing Secretary of National Defense v. Manalo , 568 SCRA 1 (2008) 63  Mison v. Gallegos, 760 SCRA 363 (201 5). Here, i t was held there was no need for issuance of the privilege of the writ of amparo AR EVIEW in regard to an alien who was arrested b y Bureau of Immigration agents pursuant to a Warrant of Deportation where there was no refusal to give information on his whereabouts, or any attempt to conceal him. B R 2017 64  Responsibility refers to the extent the actors h ave been established by substantial evidence to have participated  in whatever way,  by action or omission, in an e nforced disappearance, as a measure of the remedies the Court sh all craft, among them, the dir ective to file the appropriate criminal and civil cases against the responsible parties in the proper courts.  Accountability , refers to the measure of remedies that should be addressed to those [i] who exhibited involvement in the enfor ced disappearance without bringing the level  of their complicity to the level of responsibility ; or [ii] who are imputed with knowledge  relating to the enforced disappearance and vis-à-vis Aclosure; Library Arsenal Of Arms who carry the burden of dis or [iii]Of thoseLiberties who carry, but have failed  An to discharge, the burden of ex traordinary dili gence in the investigation  of the enforced disappearance. R B G R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 82 of 99 any evidence otherwise inadmissible under usual rules to be admissible if it is consistent with the admissible evidence adduced, thus allowing for the admission of hearsay evidence; (d) the doctrine of  command responsibility doctrine may likewise find application in proceedings seeking the privilege of the writ of amparo; (e) the writ is immediately executory and need not to await a motion for execution; (f) the retirement, reassignment or separation from the service of respondents does not necessarily terminate their amenability to the amparo proceedings. It has also been held that the threatened demolition of a dwelling by virtue of a final judgment of the court, is not included among the enumeration of rights for which the remedy of a writ ofamparo is made available. Such claim to dwelling does not constitute right to life, liberty and security. The Court will not waste its precious time and effort on matters not covered by the writ.65 In Navia v. Pardico, 673 SCRA 618 (2012), the Court also spelled out the elements of enforced or  involuntary disappearances, as provided for in the Philippine Act on Crimes Against International   Humanitarian Law, Genocide and Other Crimes Against Humanity (R.A. No. 9851), viz : (a) be an arrest, detention, abduction or any form of deprivation of liberty, (b) carried out by, or with the authorization, support or acquiescence of, the State or a political organization, (c) followed by the State or political organization’s refusal to acknowledge or give information on the fate or whereabouts of the  person subject of the amparo petition, and, (d) that the intention for such refusal is to remove subject  person from the protection of the law for a pro longed period of time. “As clarified in Navia, with the enactment of R.A. No. 9851, the Amparo Rule is now a procedural law anchored, not only on the constitutional rights to life, liberty and security, but on a concrete statutory definition as well of what an ‘enforced or involuntary disappearance’ is. Therefore, A.M. No. 07-9-12-SC’s reference to enforced disappearances should be construed to mean the enforced or involuntary disappearance of persons contemplated in Section 3(g) of R.A. No. 9851. Meaning, in probing enforced disappearance cases, courts should read A.M. No. 07-9-12-SC in relation to R.A. No. 9851.”66 In Balao v. Macapagal-Arroyo, 662 SCRA 312 (2011), the Court held that the “documented practice of targeting activists in the military’s counter-insurgency program by itself does not fulfill the evidentiary standard provided in the Amparo Rule to establish an enforced disappearance.” And, in connection with the constitutional policy protecting and advancing the people’s right to a  balanced and healthful ecology,67 the Court has come up with the Writ of Kalikasan  (Rules of Procedure for Environmental Cases [A.M. No. 09-6-8-SC, 29 April 2010]). The Writ of Kalikasan is a “remedy available to a natural or juridical person, entity authorized by law, people’s organization, nongovernmental organization, or any public interest group accredited by or registered with any government agency, on behalf of persons whose constitutional right to a balanced and healthful ecology is violated, or threatened with violation by anJunlawful omission of a public official or employee, or private Ror CENTER URISTSact EVIEW individual or entity, involving environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces.” Related to the foregoing is the Writ of  Continuing Mandamus  which provides remedy when any agency or instrumentality of the government BaAR REVIEW 2017 or officer thereof unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust or station in connection with the enforcement or violation of an environmental law rule or regulation or a right therein, or unlawfully excludes another from the use or  R 65 66 67 B G Canlas v. Napico Homeowners Ass’n., I – XIII, Inc. , 554 SCRA 208 (2008).  Mison v. Gall egos, SCRA 363 (2015). A760 Library Of Liberties vis-à-vis An Arsenal Of Arms  “The State shall p rotect and promote the right to h ealth of the people and instill heal th consciousness among them.” (Art. II, §15) R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 83 of 99 enjoyment of such right and there is no other plain, speedy and adequate remedy in the ordinary course of law. The person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty, attaching thereto supporting evidence, s pecifying that the petition concerns an environmental law, rule or regulation, and praying that judgment be rendered commanding the respondent to do an act or series of acts until the judgment is fully satisfied, and to pay damages sustained by the  petitioner by reason of the malicious neglect to perform the duties of the respondent, under the law, rules or regulations.” In Resident Marine Mammals of the Protected Seascape Tañon Strait v. Reyes, 756 SCRA 513 (2015), the Court pointed out that provision in the Rules of Procedure for Environmental Cases which allow for citizen suits, eliminated the need to give the Resident Marine Mammals legal standing – the  Rules permit any Filipino citizen, as a steward of nature, to bring a suit to enforce our environmental laws. And, in Mosqueda v. Pilipino Banana Growers & Export Association, Inc., – SCRA – (G.R. Nos. 189185 and 189305, 16 August 2016) , the Court noted that the so-called Precautionary Principle applied in environmental cases requires scientific basis. The  Principle  has “emerged from a need to  protect humans and the environment from increasingly unpredictable, uncertain, and unquantifiable but  possibly catastrophic risks such as those associated with Genetically Modified Organisms and climate change, among others. The oft-cited Principle 15 of the 1992 Rio Declaration on Environment and Development (1992 Rio Agenda), first embodied this principle, . . .” Nevertheless, “[i]t is notable, therefore, that the precautionary principle shall only be relevant if there is concurrence of three elements, namely: uncertainty, threat of environmental damage and serious or irreversible harm. In situations where the threat is relatively certain, or that t he causal link between an action and environmental damage can be established, or the probability of occurrence can be calculated, only preventive, not precautionary measures, may be taken. Neither will the precautionary principle apply if there is no indication of a threat of environmental harm, or if the threatened harm is trivial or easily reversible.” 1.  Secretary of National Defense v. Manalo , 568 SCRA 1 (2008) “While victims of enforced disappearances are separated from the rest of the world behind secret walls, they are not separated from the constitutional protection of their basic rights. The constitution is an overarching sky that covers all in its protection.” Thus the Court began its decision in the first very  petition filed for a Writ of Amparo.68 As to the Writ’s origin  and nature, the Court said: “The writ of amparo originated in Mexico. ‘ Amparo’ literally means ‘protection’ in Spanish.” Amparo “combines the principles of judicial review derived from the U.S. with the limitations on judicial power characteristic of the civil law tradition which  prevails in Mexico. It enables courts to enforce the constitution by protecting individual rights in JURISTS REVIEW CENTER  particular cases, but prevents them from using this power to make law for the entire nation.” Through time, adoption and adaptations in some other places, it has also begun to assume different forms for  different purposes – (1) amparo libertad  for the protection of personal freedom, equivalent to thehabeas BAR REVIEW 2017 corpus writ; (2) amparo contra leyes  for the judicial review of the constitutionality of statutes; (3) 68 R B G  An earlier petition for writ of habeas corpus had been withdr awn following the escape of the the Manalo brothers who were unti l then illegally detained following their abduction by soldiers and members of the CAFGU. Even as they were already not deprived of  their liberty, they still feared for their lives and s ecurity. Therefore, they filed a petition for Prohibition, Injunction and TRO to stop the Secretary of National Defense and the Chief of Staff of the Armed Forces, as well as persons under them, from doing them harm. The vis-à-vis A Library Of Liberties  Anthe Arsenal Of Arms moment the rules on the writ of amparo became effective, however, they asked Court to convert their petition to one for Writ of   Amparo – and the Court forthwith acceded. R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 84 of 99 amparo casacion for the judicial review of the constitutionality and legality of a judicial decision; (4) amparo administrativo for the judicial review of administrative actions; and (5) amparo agrario for the  protection of peasants’ rights derived from the agrarian reform process. In the Philippines, before the adoption of the Amparo Rules, we had the constitutional guarantee of  right to life, liberty and security under the Due Process Clause and the right against unreasonable searches and seizures (Art. II, §§1 and 2), enforceable by means of the writ of habeas corpus (Art. III, §15) as well as the Grave Abuse Clause69 (Art. VIII, §1, ¶2). On the Grave Abuse Clause, the Court said: “The Clause accords a similar general protection to human rights extended by the amparo contra leyes, amparo casacion, and amparo administrativo. Amparo libertad  is comparable to the remedy of habeas corpus  found in several provisions of the 1987 Constitution. The Clause is an offspring of the U.S. common law tradition of judicial review, which finds its roots in the 1803 case of Marbury v. Madison.” But the means then available were obviously inadequate remedy to pressing problems of extralegal  killings  and enforced disappearances  which cried out for better solutions. Thus, the writ of amparo. “While constitutional rights can be protected under the Grave Abuse Clause through remedies of  injunction or prohibition under Rule 65 of the Rules of Court and a pet ition forhabeas corpus under Rule 102, these remedies may not be adequate to address the pestering problem of extralegal killings and enforced disappearances. However, with the swiftness required to resolve a petition for a writ ofamparo through summary proceedings and the availability of appropriate interim and permanent reliefs under the  Amparo  Rule, this hybrid writ of the common law and civil law traditions – borne out of the Latin American and Philippine experience of human rights abuses – o ffers a better remedy to extralegal killings and enforced disappearances and threats thereof. The remedy provides rapid judicial relief as it partakes of a summary proceeding that requires only substantial evidence to make t he appropriate reliefs available to the petitioner; it is not an action to determine criminal guilt requiring proof beyond reasonable doubt, or liability for damages requiring preponderance of evidence, or administrative responsibility requiring substantial evidence that will require full and exhaustive proceedings.” In fine, amparo writ serves both preventive and curative roles in addressing the problem of extralegal  killings  and enforced disappearnces . The Amparo Rule was intended to address the intractable problem of “extralegal killings” and “enforced disappearances.” Its coverage, in its present form, is confined to these two instances or to threats thereof. And what do you mean by those terms? Extralegal killings are killings committed without due process of law, i.e., without legal safeguards or judicial proceedings. On the other hand, enforced disappearances   are attended by the following characteristics: an arrest, detention or abduction of a person by a government official or organized groups or private individuals acting with the direct or indirect acquiescence of the government; the refusal of the State to disclose the fate or whereabouts of the person concerned or a refusal to acknowledge the deprivation of liberty which  places such persons outside the protection of R law. JURISTS EVIEW CENTER What reliefs are available? One would be the production  by the responsible officials and persons of  all official and unofficial reports   of the investigation undertaken in connection with their case, all  BAR REVIEW 2017 medical reports, records and charts , reports of any treatment given or recommended and medicines  prescribed, if any, to include a list of medical and (sic) personnel (military and civilian)  who attended to the brothers while in detention. And, in this regard, the Court clarified the nature of an amparo  production order. “The production order under the Amparo Rule should not be confused with a search warrant for law enforcement under Article III, Section 2 of the 1987 Constitution. This Constitutional R 69 A Library Of Liberties B G vis-à-vis An  This might be the first time that the Court made use of this term. Arsenal Of Arms R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 85 of 99  provision is a protection of the people from the unreasonable intrusion of the government, not a  protection of the government from the demand of the people such as respondents. Instead, theamparo  production order may be likened to the production of documents or things under Section 1, Rule 27 of  the Rules of Civil Procedure.” Another relief  is the disclosure of the present places of official assignments of identified military  personnel  who might have had something to do with the abduction, detention and torture of theamparo  petitioners. “The disclosure of the present places of assignment of [two military men] whom respondents  both directly implicated as perpetrators behind their abduction and detention, is relevant in ensuring the safety of respondents by avoiding their areas of territorial jurisdiction. Such disclosure would also help ensure that these military officers can be served with notices and court processes in relation to any investigation and action for violation of the respondents’ rights.” And by way of final note, the Court declared: “The writ of amparo is a tool that gives voice to preys of silent guns and prisoners behind secret walls.” (Now, as for you, the Bar examinee, it is time to give voice to your silent pens and to break free from the prison walls you have made out of your unfounded trepidations about the Bar exams!) 2.  Razon, Jr. v. Tagitis, 606 SCRA 598 (2009) and 612 SCRA 685 (2010) The remedy under the Writ of Amparo is a work in progress, and we are all witnesses to the same. In this case the Court further expounded on the nature and importance of the Writ of Amparo. The Court said that the Writ of Amparo “does not determine guilt nor pinpoint criminal culpability for the disappearance; rather, it determines responsibility ,  or at least accountability , for the enforced disappearance for purposes of imposing the appropriate remedies to address the disappearance.” The Court further explained that “[i]n all these cases, the issuance of the Writ of Amparo is justified by our   primary goal of addressing the disappearance, so that the life of the victim is preserved and his liberty and security are restored. We highlight this nature of a Writ of Amparo case at the outset to stress that the unique situations that call for the issuance of the writ, as well as the considerations and measures necessary to address these situations, may not at all be the same as the standard measures and proc edures in ordinary court actions and proceedings. In this sense, the Rule on the Writ of   Amparo ( Amparo Rule) issued by this Court is unique. The  Amparo Rule should be read, too, as a work in progress, as its directions and finer points remain to evolve through time and jurisprudence and through the substantive laws that Congress may promulgate.” In regard to the need for some adjustments, specially with respect to matters of evidence, the Court explained that flexibility is necessary under the unique circumstances that enforced disappearance cases  pose to the courts. To have an effective remedy, the standard of evidence must be responsive to the JURISTS REVIEW CENTER evidentiary difficulties faced. “Thus, while we must follow the substantial evidence rule, we must observe flexibility in considering the evidence we shall take into account. The fair and proper rule, to our mind, is to consider all the pieces of evidence B adduced in their totality, 2017and to consider any evidence otherwise AR REVIEW inadmissible under our usual rules to be admissible if it is consistent with the admissible evidence adduced. In other words, we reduce our rules to the most basic test of reason – i.e., to the relevance of the evidence to the issue at hand and its consistency with all other pieces of adduced evidence. Thus, even hearsay evidence can be admitted if it satisfies this basic minimum test. ” R B G In keeping withA theLibrary idea thatOf theLiberties remedy under the Writ of Amparo is a work in progress, take note vis-à-vis  An Arsenal Of Arms of what the Court said in Burgos v. Macapagal-Arroyo, 621 SCRA 481 (2010) – even as some of the R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 86 of 99 named respondents had retired or been reassigned elsewhere, they, as present respondents, “shall continue to be personally impleaded for purposes of the responsibilities and accountabilities they may have incurred during their incumbencies.”70 3.  Boac v. Cadapan, 649 SCRA 618 (2011) Among the significant aspects of this case which arose from the abduction and disappearance of two women and a man is the recognition of the credibility of the testimony of Manalo in the earlier case of  Secretary of National Defense. “The Court takes judicial notice of its Decision in the just cited Secretary of National Defense v. Manalo which assessed the account of Manalo to be a candid and forthright narrative of his and his brother Reynaldo’s abduction by the military in 2006; and of the corroborative testimonies, in the same case, of Manalo’s brother Reynaldo and a forensic specialist, as well as Manalo’s graphic description of the detention area. There is thus no compelling reason for the Court, in the present case, to disturb its appreciation in Manalo’s testimony. The outright denial of petitioners Lt. Col. Boac, et al. thus crumbles.”  Hierarchy of Amparo Petitioners. Also, the Court spoke of a hierarchy of parties when it comes to  petitions for writs of amparo. The exclusive and successive order mandated by Section 2 of the Rule on the Writ of Amparo must be followed. “The order of priority is not without reason – ‘to prevent the indiscriminate and groundless filing of petitions for amparo which may even prejudice the right to life, liberty or security of the aggrieved party.’” Thus, the parents of the two missing persons could not file a petition on behalf of the third missing individual, specially if there is no showing that there were no known members of the immediate family or relatives of the latter. Incidentally, in this regard the Court noted that, in contrast, in a habeas corpus proceeding, any person may apply for the writ on behalf of  the aggrieved party. Command Responsibility in Amparo Proceedings. While the Court maintained the pronouncement in Rubrico in denying the application of command responsibility inamparo cases to determine criminal  liability, it nevertheless went on to state that “command responsibility may be loosely applied inamparo cases in order to identify those accountable individuals that have the power to effectively implement whatever processes an amparo court would issue. In such application, the amparo court does not impute criminal responsibility but merely pinpoint the superiors it considers to be in the best position to protect the rights of the aggrieved party. Such identification of the responsible and accountable superiors may well be a preliminary determination of criminal liability which, of course, is still subject to further  investigation by the appropriate government agency.”  Motion for Execution of Writ of Amparo. “[T]here is no need to file a motion for execution for an amparo or habeas corpus decision. Since the right to life, liberty and security of a person is at stake, the REVIEW CENTER  proceedings should not be delayedJURISTS and execution of any decision thereon must be expedited as soon as  possible since any form of delay, even for a day, may jeopardize the very rights that these writs seek to immediately protect.” Moreover, “The Rules of Court only find suppletory application in an amparo BAR Rweaken, EVIEW 2017  proceeding if the Rules strengthen, rather than the procedural efficacy of the writ. As it is, the Rule dispenses with dilatory motions in view of the urgency in securing the life, liberty or security of the 70 R B G In  Burgos, the Court concluded that “the PNP and the AFP have so far failed to conduct an exhaustive and meaningful investigation into the disapp earance of Jonas Burgos, and to exercise the extraordinary diligence (in the p erformance of their duties) that the Rule on the Writ of Amparo requires.” The Court also referred the case to the Commission on Human Rights as “the Court’s directly vis-à-vis A Library Of Liberties  An Arsenal commissioned agency tasked with the continuatio n of the investigation of the Burgos abduction Of a nd Arms the gathering of evidence, with the obligation to report its factual findings and recommendations to this Court. ” R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 87 of 99 aggrieved party. Suffice it to state that a motion for execution is inconsistent with the extraordinary and expeditious remedy being offered by an amparo proceeding. In fine, the appellate court erred in ruling that its directive to immediately release Sherlyn, Karen and Merino was not automatically executory. For  that would defeat the very purpose of having summary proceedings in amparo  petitions. Summary  proceedings, it bears emphasis, are immediately executory without prejudice to further appeals that may  be taken therefrom.”  Effect of Transfer, Retirement or Separation from Service. Finally, it is also noteworthy that some respondents remained to be such notwithstanding that they might have been reassigned or transferred or  retired. We find this in the dispositive portion: “Respondents Lt. Col. Felipe Anotado, Lt. Francis Mirabelle Samson, Gen. Jovito Palparan, Lt. Col. Rogelio Boac, Arnel Enriquez and Donald Caigas shall remain personally impleaded in the petitions to answer for any responsibilities and/or accountabilities they may have incurred during their incumbencies.” 4.  Rodriguez v. Macapagal-Arroyo , 660 SCRA 84 (2011) The Court discussed some noteworthy highlights regarding the writs of amparo and habeas data in this case. Grant of Interim Reliefs. Being interim reliefs, they can only be granted before a final adjudication of the case is made. In any case, it must be underscored that the privilege of the writ of amparo, once granted, necessarily entails the protection of the aggrieved party. Accordingly, since the Court granted  petitioner the privilege of the writ of amparo, there was no more need to issue a temporary protection order independently of the former. The order restricting respondents from going near Rodriguez is subsumed under the privilege of the writ. Concepts of Responsibility and Accountability. Since there is no determination of administrative, civil or criminal liability in amparo and habeas data proceedings, courts can only go as far as ascertaining responsibility or accountability for the enforced disappearance or extrajudicial killing.  Presidential Immunity from Suit . A non-sitting President does not enjoy immunity from suit, even for acts committed during the latter’s tenure. Courts should look with disfavor upon the presidential  privilege of immunity, especially when it impedes the search for truth or impairs the vindication of a right. Command Responsibility in Amparo proceedings. Although originally used for ascertaining criminal complicity, the command responsibility doctrine has also found application in civil cases for human rights abuses. This development in the use of command responsibility in civil proceedings shows that the application of this doctrine has been liberally extended even to cases not criminal in nature. The Court held that command responsibility may likewise find application in proceedings seeking the privilege of  JURISTS REVIEW CENTER the writ of amparo. The doctrine of command responsibility may be used to determine whether  respondents are accountable for and have the duty to address the abduction of the petitioner in order to enable the courts to devise remedial measures to protect his rights. Nothing precludes the Court from BAR REVIEW 2017 applying the doctrine of command responsibility in amparo proceedings to ascertain responsibility and accountability in extrajudicial killings and enforced disappearances. R B G Command responsibility of the President . The president, as commander-in-chief of the military, can  be held responsible or accountable for extrajudicial killings and enforced disappearances. To hold someone liable under the doctrine of command responsibility, the following elements must obtain: (a) the A Library Of Liberties  Anaccused Arsenal Of Arms existence of a superior-subordinate relationshipvis-à-vis between the as superior and the perpetrator of  R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 88 of 99 the crime as his subordinate; (b) the superior knew or had reason to know that the crime was about to  be or had been committed; and (c) the superior failed to take the necessary and reasonable measures to  prevent the criminal acts or punish the perpetrators thereof. The president, being the commander -in-chief of all armed forces, necessarily possesses control over  the military that qualifies him as a superior within the purview of the command responsibility doctrine. On the issue of knowledge, it must be pointed out that although international tribunals apply a strict standard of knowledge, i.e., actual knowledge, such may nonetheless be established through circumstantial evidence. In the Philippines, a more liberal view is adopted and superiors may be charged with constructive knowledge. This view is buttressed by the enactment of Executive Order No. 226, otherwise known as the  Institutionalization of the Doctrine of ‘Command Responsibility’ in all  Government Offices, particularly at all Levels of Command in the Philippine National Police and other   Law Enforcement Agencies (E.O. 226 [1995]). Knowledge of the commission of irregularities, crimes or offenses is presumed when (a) the acts are widespread within the government official’s area of   jurisdiction; (b) the acts have been repeatedly or regularly committed within his area of responsibility; or  (c) members of his immediate staff or office personnel are involved. As to the issue of failure to prevent or punish, it is important to note that as the commander-in-chief  of the armed forces, the president has the power to effectively command, control and discipline the military.  Doctrine of Totality of Evidence. Under the doctrine of totality of evidence in amparo cases, courts consider all the pieces of evidence adduced in their totality , and to consider any evidence otherwise inadmissible under the usual rules to be admissible if it is consistent with the admissible evidence adduced. The Court reduced the rules to the most basic test of reason – i.e., to the relevance of the evidence to the issue at hand and its consistency with all other pieces of adduced evidence. Thus, even hearsay evidence can be admitted if it satisfies this basic minimum test. Commission on Human Rights Shortcomings. Here, while the Court found that there was no substantial evince to show that the personnel of the CHR who looked into the case of Rodriguez violated, or threatened with violation, Rodriguez’s right to life, liberty and security, it nonetheless emphasized its criticism as regards their capacity to recognize torture or any similar form of abuse. The Court pointed out that the CHR, being constitutionally mandated to protect human rights and investigate violations thereof, should ensure that its officers are well-equipped to respond effectively to and address human rights violations. The actuations of respondent CHR personnel unmistakably showed their insufficient competence in facilitating and ensuring the safe release of Rodriguez after his ordeal.  Effect of Failure to Conduct a Fair and Effect Investigation. Failure to conduct a fair and effect JURISTS RtoEVIEW CENTER investigation amounts to a violation of or threat a person’s rights to life, liberty and security. The Rule on the Writ of Amparo explicitly states that the violation of or threat to the right to life, liberty and security may be caused by either an act or an omission of a public official, reiterating that in the context AR REVIEW 2017 of amparo proceedings, responsibilityB  may refer to the participation of the respondents, by action or  omission, in enforced disappearance, while accountability  may attach to respondents who are imputed  with knowledge relating to the enforced disappearance and who carry the burden of disclosure; or those who carry, but have failed to discharge, the burden of extraordinary diligence in the investigation of  the enforced disappearance. Adverting to Secretary of National Defense v. Manalo, 568 SCRA 1, 42 (2008), the Court reminded everyone that the right to security of a person includes the positive obligation A Library Of Liberties vis-à-vis An Arsenal Of Arms of the government to ensure the observance of the duty to investigate. The Court noted that in this case, R B G R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 89 of 99 there was only perfunctory investigation by the superiors, exerting no efforts to take Ramirez’s account of the events into consideration. Rather, these respondents solely relied on the reports and narration of  the military. 5.  Navia v. Pardico, 673 SCRA 618 (2012) In this case, the Court clarified, in conjunction with the provisions of the Philippine Act on Crimes  Against International Humanitarian Law, Genocide and Other Crimes Against Humanity (R.A. No. 9851), that for the protective writ of amparo to issue in enforced disappearance cases, allegation and  proof that the persons subject thereof are missing are not enough – it must also be shown by the required quantum of proof that their disappearance was carried out by, or with the authorization, support or  acquiescence of the government or a political organization, followed by a refusal to acknowledge the same or give information on the fate or whereabouts of said missing persons. The petitioner must be able to prove by substantial evidence the indispensable element of government participation. Here, guards of a subdivision invited two persons in relation to a complaint against them for theft of  electric wires and lamps in the subdivision. The two, accompanied by the mother of one of them, went to the security office, and after some questioning by the guards, one was allowed to leave while the other  (Pardico) was left behind, and he was subsequently reported by his wife as missing. After the wife could not locate him, she finally filed a petition for Writ of Amparo, which the trial court eventually granted. On appeal, the Court had to resolve the issue as to whether the disappearance of Pardico as alleged  by the wife and proved during the summary proceedings before the trial court fell within the ambit of  A.M. No. 07-9-12-SC and relevant laws. The Court said no, and came up with the following important  points to consider in an amparo proceeding, specifically in regard to enforced disappearances. “While Section 1 provides A.M. No. 07-9-12-SC’s coverage, said Rules does not, however, define extralegal killings and enforced disappearances. This omission was intentional as the Committee on Revision of the Rules of Court which drafted A.M. No. 07-9-12-SC chose to allow it to evolve through time and jurisprudence and through substantive laws as may be promulgated by Congress. Then, the  budding jurisprudence on amparo blossomed in Razon, Jr. v. Tagitis when this Court defined enforced disappearances. The Court in that case applied the generally accepted principles of international law and adopted the International Convention for the Protection of All Persons from Enforced Disappearance’s definition of enforced disappearances, . . . Not long thereafter, another significant development affecting A.M. No. 07-9-12-SC came about after Congress enacted Republic Act (RA) No. 9851 on December  11, 2009. Section 3(g) thereof defines enforced or involuntary disappearances as follows: (g) ‘Enforced or involuntary disappearance of persons’ means the arrest, detention, or abduction of persons by, or with the authorization, support or acquiescence of, a St ate or a political organization followed by a refusal to CENTER URISTS acknowledge that deprivation of J freedom or R toEVIEW give information on the fate or whereabouts of those  persons, with the intention of removing from the protection of the law for a prolonged period of time.” Given the foregoing definition, the Court held further: “Therefore, A.M. No. 07-9-12-SC’s reference to BAR Rto EVIEW 2017 enforced disappearances should be construed mean the enforced or involuntary disappearance of   persons contemplated in Section 3(g) of RA No. 9851. Meaning, in probing enforced disappearance cases, courts should read A.M. No. 07-9-12-SC in relation to RA No. 9851.” R B G After setting forth the elements ofenforced disappearances, the Court concluded that “it is now clear  that for the protective writ of amparo to issue, allegation and proof that the persons subject thereof are vis-à-vis A Library Of Liberties Arsenalevidence Of Arms missing are not enough. It must also be shown and proved  An by substantial that the disappearance R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 90 of 99 was carried out by, or with the authorization, support or acquiescence of, the State or a political organization, followed by a refusal to acknowledge the same or give information on the fate or  whereabouts of said missing persons, with the intention o f removing them from the protection of the law for a prolonged period of time.” In this particular case, while the Court basically believed the version of the petitioner seeking the writ, it nevertheless that “in an amparo petition, proof of disappearance alone is not enough. It is likewise essential to establish that such disappearance was carried out with the direct or indirect authorization, support or acquiescence of the government. This indispensable element of State participation is not  present in this case.” But is it not that under Section 1 of A.M. No. 07-9-12-SC a writ of amparo may lie against a private individual or entity? Yes, “[b]ut even if the person sought to be held accountable or responsible in an amparo petition is a private individual or entity, still, government involvement in the disappearance remains an indispensable element.” Here, the respondents were mere security guards at a private subdivision, a private entity – they did not work for the government and nothing had been presented that would link or connect them to some covert police, military or governmental operation. The Court reiterated: “As discussed above, to fall within the ambit of A.M. No. 07-9-12-SC in relation to RA No. 9851, the disappearance must be attended by some governmental involvement. This hallmark of State  participation differentiates an enforced disappearance case from an ordinary case of a missing person.” 6.  Pador v. Arcayan, 693 SCRA 192 (2013) To be entitled to the privilege of the writ ofamparo, the petitioner must prove by substantial evidence that his or her rights to life, liberty and security are being violated or threatened by an unlawful act or  omission. The writ does not envisage the protection of concerns that are purely property or commercial in nature. The Court reminded everyone that “the privilege of the writ of amparo is an extraordinary remedy adopted to address the special concerns of extralegal killings and enforced disappearances . ‘Accordingly, the remedy ought to be resorted to and granted judiciously, lest the ideal sought by the  Amparo Rule be diluted and undermined by the indiscriminate filing ofamparo petitions for purposes less than the desire to secure amparo reliefs and protection and/or on the basis of unsubstantiated allegations.’” 7.  De Lima v. Gatdula, 691 SCRA 226 (2013) In this case, the Court clarified the the difference between writ of amparo and the privilege of the Writ of Amparo . “The privilege of the Writ of Amparo should be distinguished from the actual order called the Writ of Amparo. The privilege includes availment of the entire procedure outlined in A.M. No. 07-9-12-SC, the Rule on the Writ of Amparo. examining the petition and its attached affidavits, the JURISTS After REVIEW CENTER Return and the evidence presented in the summary hearing, the judgment should detail the required acts from the respondents that will mitigate, if not totally eradicate, the violation of or the threat to the  petitioner’s life, liberty or security. A judgment simply grants ‘the privilege of the writ’ cannot be BAR Rwhich 2017 EVIEW executed. It is tantamount to a failure of the judge to intervene and grant judicial succor to the petitioner. Petitions filed to avail of the privilege of the Writ of  Amparo arise out of very real and concrete circumstances. Judicial responses cannot be as tragically symbolic or ritualistic as “granting the privilege of the Writ of Amparo.” R B G The Court explained that “the issuance of thevis-à-vis sets in motion presumptive judicial protection A Library Of Liberties writ itself An Arsenal Of Arms for the petitioner. The court compels the respondents to appear before a court o f law to show whether  R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 91 of 99 the grounds for more permanent protection and interim reliefs are necessary. The respondents are required to file a Return after the issuance of the writ through the clerk of court. The Return serves as the responsive pleading to the petition. Unlike an Answer, the Return has other purposes aside from identifying the issues in the case. Respondents are also required to detail the actions they had taken to determine the fate or whereabouts of the aggrieved party.” Thereafter, “[t]here will be a summary hearing only after the Return is filed to determine the merits of the petition and whether interim reliefs are warranted. If the Return is not filed, the hearing will be done ex parte. After the hearing, the court will render the judgment within ten (10) days from the time the petition is submitted for decision. If the allegations are proven with substantial evidence, the court shall grant the privilege of the writ and such reliefs as may be proper and appropriate. The judgment should contain measures which the judge views as essential for the continued protection of the petitioner in the Amparo case. These measures must be detailed enough so that the judge may be able to verify and monitor the actions taken by the respondents. It is this judgment that could be subject to appeal to the Supreme Court via Rule 45. After the measures have served their purpose, the judgment will be satisfied. In Amparo cases, this is when the threats to the  petitioner’s life, liberty and security cease to exist as evaluated by the court that renders the judgment. Parenthetically, the case may also be terminated thro ugh consolidation should a subsequent case be filed  – either criminal or civil. Until the full satisfaction of the judgment, the extraordinary remedy of Amparo allows vigilant judicial monitoring to ensure the protection of constitutional rights.” Among the other significant points to consider: • “It is the Return that serves as the responsive pleading for petitions for the issuance of Writs of Amparo. The requirement to file an Answer is contrary to the intention of the Court to  provide a speedy remedy to those whose right to life, liberty and security are violated or are threatened to be violated.” • “A writ of Amparo is a special proceeding . It is a remedy by which a party seeks to establish a status, a right or particular fact. It is not a civil nor a criminal action, hence, the application of the Revised Rule on Summary Procedure is seriously misplaced.” • “The Return in Amparo cases allows the respondents to frame the issues subject to a hearing. Hence, it should be done prior to t he hearing, not after.” • A memorandum is a prohibited pleading under the Rule on the Writ of Amparo. 8. Caram v. Sequi , 732 SCRA 86 (2014) A petition for a writ of amparo is not the proper recourse for obtaining parental authority and custody of a minor child. The mother’s directly accusing the Department of Social Welfare and Development JURISTS REVIEW CENTER officers of forcibly separating her from her child and placing the latter up for adoption, supposedly without complying with the necessary legal requisites to qualify the child for adoption, clearly indicated that she was not searching for a lost child but asserting her parental authority over the child and BAR REVIEW 2017 contesting custody over him. Since what is involved is the issue of child custody and the exercise of   parental rights over a child, who, for all intents and purposes, has been legally considered a ward of the State, the Amparo rule cannot be properly applied. R A Library Of Liberties B G vis-à-vis An Arsenal Of Arms R B GOROSPE R. CONSTITUTIONAL LAW Notes, Updates and Teasers Page 92 of 99 SPEEDY DISPOSITION OF CASES The Court came up with enlightening reminders on the guaranty of speedy disposition of cases in Coscolluela v. Sandiganbayan (First Division), 701 SCRA 188 (2013). This involved a criminal  prosecution which almost took eight (8) years from the time the complaint was filed with the Office of  the Ombudsman to the time that the case was filed with the Sandiganbayan. For the fundamentals, the Court lectured about the right to speedy disposition. “This constitutional right is not limited to the accused in criminal proceedings but extends to all parties in all cases, be it civil or administrative in nature, as well as all proceedings, either judicial or quasi-judicial. In this accord, any  party to a case may demand expeditious action to all officials who are tasked with the administration of   justice. It must be noted, however, that the right to speedy disposition of cases should be understood to  be a relative or flexible concept such that a mere mathematical reckoning of the time involved would not  be sufficient. Jurisprudence dictates that the right is deemed violated only when the proceedings are attended by vexatious, capricious, and oppressive delays; or when unjustified postponements of the trial are asked for and secured; or even without cause or justifiable motive, a long period of time is allowed to elapse without the party having his case tried. Hence, in the determination of whether the defendant has been denied his right to a speedy disposition of a case, the following factors may be considered and  balanced: (1) the length of delay; (2) the reasons for the delay; (3) the assertion or failure to assert such right by the accused; and (4) the prejudice caused by the delay.” As for the rationale, the Court elucidated: “Lest it be misunderstood, the right to speedy disposition of cases is not merely hinged towards the objective of spurring dispatch in the administration of justice  but also to prevent the oppression of the citizen by holding a criminal prosecution suspended over him for an indefinite time. Akin to the right to speedy trial, its ‘salutary objective’ is to assure that an innocent  person may be free from the anxiety and expense of litigation or, if otherwise, of having his guilt determined within the shortest possible time compatible with the presentation and consideration of  whatsoever legitimate defense he may interpose. This looming unrest as well as the tactical disadvantages carried by the passage of time should be weighed against the State and in favor of the individual. In the context of the right to a speedy trial, the Court in Corpuz v. Sandiganbayan (Corpuz )[, 442 SCRA 294, 312, 313-314 (2004),] illumined: ‘A balancing test of applying societal interests and the rights of the accused necessarily compels the court to approach speedy trial cases on an ad hoc  basis. ¶ ‘x x x Prejudice should be assessed in the light of the interest o f the defendant that the speedy trial was designed to protect, namely: to prevent oppressive pre-trial incarceration; to minimize anxiety and concerns of the accused to trial; and to limit the possibility that his defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. There is also prejudice if the defense witnesses are unable to recall accurately JURISTS REVIEW CENTER the events of the distant past. Even if the accused is not imprisoned prior to trial, he is still disadvantaged by restraints on his liberty and by living under a cloud of anxiety, suspicion and often, hostility. His financial resources may be drained, his association is curtailed, and he is BAR REVIEW 2017 subjected to public obloquy. ’” R A Library Of Liberties B G vis-à-vis An Arsenal Of Arms R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 93 of 99 S. SELF-INCRIMINATION CLAUSE Under this privilege, a person is free to keep within his breast any incriminatory matters and he could not be forced to disclose them. If the authorities want to pin him down, they have to co me up with their  own proof independent of what might be concealed by the person himself. Nevertheless, it must be remembered that the guarantee is against compelled testimonial evidence, not object evidence which may include fingerprints, blood samples, urine samples, DNA samples and the like. When it comes to availing of the privilege, distinctions have to be made as to whether the person invoking it is an accused, a mere witness, or a party in a civil suit. While an accused can refuse altogether  to take the witness stand, a witness may only refuse to answer incriminating questions. If he is the respondent in proceedings in which loss or forfeiture of property71 or loss of a license or profession72 is a consequence, then he may also invoke the privilege like an accused.  No inference of guilt should be made from the invocation of the privilege, otherwise it would be useless. The prosecution is still required to prove guilt by its own evidence, not by seizing upon the exercise of the right. Further, while the language of the privilege suggests an absolute right not to be compelled to provide an incriminating answer, the same is subject, however, to the so-called immunity statutes – the “use or  derivative use” or the “transactional” immunity statutes. The courts have upheld the validity of such statutes provided they accord the person compelled to testify a degree of protection coextensive with what is otherwise guaranteed by the constitutional proscription against self-incrimination. In Tanchanco v. Sandiganbayan, 476 SCRA 202 (2005), the Court held that the kind of immunity that may be granted in the Philippines is broader than American “transactional immunity” since the latter  are judge-made while in the Philippines they are granted by the legislature, while in  Mapa v. Sandiganbayan, 231 SCRA 783 (1994), the Government was held to its part of the bargain relative to grant of transactional immunity. In Disini v. Sandiganbayan, 621 SCRA 415 (2010), immunity was granted to Jesus Disini in exchange for his agreement to testify for the Government in relation to the dispute with Westinghouse regarding the Bataan Nuclear Plant. In that grant, he was also given the right not to testify against Herminio T. Disini. Subsequently the Government said that Jesus Disini could not refuse to testify against Herminio. The Court said: “Surely, the principle of fair play, which is the essence of due process, should hold the Republic on to its promise.” The guarantee given to Jesus against being compelled to testify in cases against Herminio constitutes a grant of immunity from civil or criminal  prosecution. “The grant, therefore, of immunity to petitioner Disini against being compelled to testify is ultimately a grant of immunity from being criminally prosecuted by the State for refusal to testify, something that falls within the express coverage of the immunity given him.” Then, as if to provide JURISTS REVIEW CENTER lessons on human relations, the Court said that it “should not allow respondent Republic, to put it bluntly, to double cross petitioner Disini. . . . More than any one, the government should be fair.” BAR REVIEW 2017 1.  Salinas v. Texas, 670 U.S. ___ (No. 12–246, 17 June 2013) Here, the accused, without being placed in custody or receiving Miranda warnings, voluntarily answered the questions of a police officer who was investigating a murder. But then he balked when the R 71 72 B G Cabal v. Kapunan, ., 6 SCRA 1059 AJr Library Of (1962) Liberties vis-à-vis An  Pascual, Jr. v. Boa rd of Medical Examiners, 28 SCRA 344 (1969) Arsenal Of Arms R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 94 of 99 officer asked whether a ballistics test would show that the shell casings found at the crime scene would match petitioner’s shotgun. He was subsequently charged with murder, and at trial prosecutors argued that his reaction to the officer’s question suggested that he was guilty. Is this violative of the right against self-incrimination? The U.S. Supreme Court said no. “The privilege against self-incrimination ‘is an exception to the general principle that the Government has the right to everyone’s testimony.’ . . . To prevent the privilege from shielding information not  properly within its scope, we have long held that a witness who “‘desires the protection of the privilege . . . must claim it’” at the time he relies on it.” Further, “[t]hat requirement ensures that the Government is put on notice when a witness intends to rely on the privilege so that it may either argue that the testimony sought could not be self-incriminating, . . . or cure any potential self-incrimination through a grant of immunity, . . . The express invocation requirement also gives courts tasked with evaluating a Fifth Amendment claim a contemporaneous record establishing the witness’ reasons for refusing to answer. . . . In these ways, insisting that witnesses expressly invoke the privilege ‘assures that the Government obtains all the information to which it is entitled.’”  Nevertheless, after noting some exceptions, the Court held: “[A] witness need not expressly invoke the privilege where some form of official compulsion denies him ‘a “free choice to admit, to deny, or to refuse to answer.”’” In this case, however, the accused “cannot benefit from that principle because it is undisputed that his interview with police was voluntary.” Finally, the Court noted: “Our cases establish that a defendant normally does not invoke the privilege  by remaining silent. . . . A witness does not expressly invoke the privilege by standing mute.” 2.  People v. Sandibanbayan (Fourth Division) , 699 SCRA 713 (2013) “The authority to grant immunity is not an inherent judicial function,” the Court declared in this involving a denial of the Ombudsman’s motion to discharge an accused pursuant to an immunity agreement. “Indeed, Congress has vested such power in the Ombudsman as well as in the Secretary of  Justice. Besides, the decision to employ an accused as a state witness must necessarily originate from the  public prosecutors whose mission is to obtain a successful prosecution of the several accused before the courts. The latter do not as a rule have a vision of the true strength of the prosecution’s evidence until after the trial is over. Consequently, courts should generally defer to the judgment of the prosecution and deny a motion to discharge an accused so he can be used as a witness only in clear cases of failure to meet the requirements of Section 17, Rule 119.” The Court explained that the authority of the Ombudsman to enter into grant immunity enables him “to carry out his constitutional mandate to ensure accountability in the public service. It gives the Ombudsman wide latitude in usingJURISTS an accusedRdischarged from the information to increase the chances EVIEW C ENTER of conviction of the other accused and attain a higher prosecutorial goal. Immunity statutes seek to  provide a balance between the state’s interests and the individual’s right against self-incrimination. To secure his testimony without exposing him to the risk of prosecution, the law recognizes that the witness BAR REVIEW 2017 can be given immunity from prosecution. In such a case, both interests and rights are satisfied.” What benefit would it be to grant immunity to one who is a co-conspirator? “One rule of wisdom is that where a crime is contrived in secret, the discharge of one of the conspirators is essential so he can testify against the others. Who else outside the conspiracy can testify about the goings-on that took place among the accused involved in the conspiracy to defraud the government in this case? No one can A Library Of Liberties vis-à-vis An Arsenal Of Arms underestimate Mercado’s testimony since he alone can provide a det ailed picture of the fraudulent scheme R B G R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 95 of 99 that went into the approval and issuance of the tax credit certificates. The documents can show the irregularities but not the detailed events that led to their issuance. As correctly pointed out by the  prosecution, Mercado’s testimony can fill in the gaps in the evidence.” But is this not rewarding the criminal? Well, the immunity granted does not blot out the fact that such co-conspirator committed the offense. “While he is liable, the State saw a higher social value in eliciting information from him rather  than in engaging in his prosecution.” 3.  Dela Cruz v. People, 730 SCRA 655 (2014) Where there is coerced drug testing following an arrest relative to a complaint not related to drugs, the same may amount to a violation of the right against self-incrimination. The Court said: “We are aware of the prohibition against testimonial compulsion and the allowable exceptions to such proscription. Cases where non-testimonial compulsion has been allowed reveal, however, that the pieces of evidence obtained were all material to the principal cause of the arrest .” In this particular case, “[i]t is incontrovertible that petitioner refused to have his urine extracted and tested for drugs. He also asked for a lawyer prior  to his urine test. He was adamant in exercising his rights, but all of his efforts proved futile, because he was still compelled to submit his urine for drug testing under those circumstances.” The Court then concluded that “[i]n the face of these constitutional guarantees [against unreasonable searches and seizures and right against self-incrimination], we cannot condone drug testing of all arrested persons regardless of the crime of offense for which the arrest is being made.” T. EXCESSIVE FINES, CRUEL AND INHUMAN PUNISHMENTS Punishment is supposed to be the price that has to be paid by those found guilty of crimes against the State – a way of making amends for violation of society’s rules. It is the manner by which society may somehow exact a form of retribution. The constitutional guarantee on punishments is geared towards seeing to it that whatever penalty is imposed does not become such that it violates the very notion of a civilized society where the mandates of substantive due process reigns. Penalties could not be grossly disproportionate to the infraction of society’s rules.73  Nevertheless, the Court refused to make adjustments in the penalty for imprisonment for estafa, which punishments had been pegged to amounts determined way back in the 1930s.74 Fines should not be excessive, and other forms of punishments should not be cruel or inhuman as determined by present day standards. Likewise, just because a person may have been sent to prison does it mean that he is completely cut off from the world, stripped of all constitutional rights. He still retains some, though to the extent only that would be consistent with his status as prisoner. JURISTS REVIEW CENTER In the case of Brown v. Plata, 563 U.S. ___ (2011), the U.S. Supreme Court held that overcrowding in prisons resulting in deficiencies in the medical care of the prisoners violate the Eighth Amendment BAR REVIEW guarantee against cruel and unusual punishments. In other2017 words, if a prison deprives prisoners of basic sustenance, including adequate medical care, the courts have a responsibility to remedy the resulting Eighth Amendment violation. R 73 74 B G  See De La Salle University, Inc. v.Of Court of Ap peals, vis-à-vis 541 SCRA 22 An (2007) A Library Liberties Arsenal Corpuz v. People, 724 SCRA 1 (2014) Of Arms R B GOROSPE U. CONSTITUTIONAL LAW Notes, Updates and Teasers Page 96 of 99 DOUBLE JEOPARDY The guarantee against double jeopardy is another assurance of fairness – that a person be not exposed more than once to the danger of being punished for the commission of the same offense . In this regard, it must be remembered that the guarantee is in relation to the same offense. Thus, it may be that a single act  could give rise to two or more offenses,75 prosecution for which will not give rise to a violation of  the constitutional proscription. However, if the act  gives rise to violation of a national law and a local  ordinance, conviction or acquittal under either shall be a bar to prosecution for the same act. It has also  been noted that double jeopardy attaches if one is tried by both a military court and a civilian court over  the same act.76 The rule is also that an acquittal puts an end to the criminal case and the prosecution could not elevate it to a higher tribunal except in case of a mistrial 77 or when there is grave abuse of discretion on the part of the judge amounting to lack or excess of jurisdiction which then renders the resulting judgment void.78 Thus, a violation of the basic rules of statutory construction which amounts to grave abuse of discretion would render any judgment of acquittal useless.79 Further, where a Motion to Dismiss/Quash is based on the ground that the “facts charged do not constitute an offense,” the Sandiganbayan cannot proceed to dismiss the case based on insufficiency of evidence. As a consequence, jeopardy would not at tach.80 The prosecution may not also appeal to increase the penalty, though if the accused himself does appeal, he stands the risk of having the penaltyrectified  – and increased!81 And, the employer, too, cannot appeal on behalf of an employee who has jumped bail.82 1.  People v. Atienza, 673 SCRA 470 (2012) Here the Court reiterated the general rule that the grant of a demurrer to evidence operates as an acquittal and is, thus, final and unappealable otherwise it would place the accused in double jeopardy –  the verdict being one of acquittal, the case ends there. Nevertheless, the Court added: “Although the dismissal order is not subject to appeal, it is still reviewable but only through certiorari under Rule 65 of the Rules of Court. For the writ to issue, the trial court must be shown to have acted with grave abuse of discretion amounting to lack or excess of jurisdiction such as where the prosecution was denied the opportunity to present its case or where the trial was a sham, thus, rendering the assailed judgment void. The burden is on the petitioner to clearly demonstrate that the trial court blatantly abused its authority to a point so grave as to deprive it of its very power to dispense justice.” 75  E.q., Nierras v. Dacuycuy, 181 SCRA 1 (19 90) [bouncing checks], and, People v. Ortiz-Miyake, 279 SCRA 180 (1997) [ill egal recruitment]; and, Ramiscal, Jr. v. Sandiganba yan, 499 SCRA 375 (2006) [R.A. 3019 and Revised Penal Code] 76 77  See separate opinion of Justice Tinga in Gonzales v. Abaya, 498 SCRA 445 (2006). JURISTS REVIEW CENTER Galman v. Sandiganbayan, 144 SCRA 43 (1986) 78  People v. Laguio, Jr., 518 SCRA 393 (2007). See also Heirs of Jane Honrales v. Honrales, 629 SCRA 423 (2010), and, Cerezo v. People, 650 SCRA 222 (2011). 79 80 81 82 BAR REVIEW 2017  People v. Sandiganbayan, 559 SCRA 449 (2008)  People v. Dumlao, 580 SCRA 409 (2009)  People v. Rondero, 320 SCRA 383 (1999) R B G  In Philippine Rabbit Bus Lines, Inc. v. People, 427 SCRA 456 (2004), the Court held that, in accordance with the rul e that only the accused may appeal, the employer cannot, independently of the convicted employee, appeal that aspect relat ing to its subsi diary civil liability. Where the latter jumps bail, the former cannot, by itself alone, undertake to appeal the civil aspect of the judgment. If it were vis-à-vis A Library Of Liberties  An Arsenal Of Arms otherwise allowed, such employer’s appeal would violate the employee’s right against double jeopardy since the judgment against the latter could become subject to modification without his consent, appeal opening up the whole case for review. R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 97 of 99 2.  Ivler v. Modesto-San Pedro , 635 SCRA 191 (2010) If irresponsible driving leads to a vehicular collision resulting in damage to property, injuries to a  passenger and death to another passenger, how many offensesare committed? Technically, only one even as there would be two resulting charges – one for reckless imprudence resulting in physical injuries, and, another one for reckless imprudence resulting in homicide and damage to property. What if the accused  pleads guilty to the lesser charge involving physical injuries, could he plead this as a way to preclude the second charge involving homicide? The Court said yes because double jeopardy would have set in – there is actually only one offense of reckless imprudence ! In other words, reckless imprudence is a single crime, and its consequences on persons and property are material only to determine the penalty. V. EX POST FACTO LAWS AND BILLS OF ATTAINDER  The constitutional proscription against ex post facto laws and bills of attainder ensures fundamental fairness. No man should be punished for acts which when done were perfectly lawful. Due process requires at the very least that before a person could be held to account for what alleged wrong he committed, he was forewarned o f the consequences of his act. Both ex post facto  laws and bills of attainder are retroactive in their application. They impose a  penalty or disability after the act has been committed when no such disadvantageous effect was yet  present when the act was done. Worse, in the case of bills of attainder, the sanction is imposed without  judicial proceedings. Thus, there is also a violation of the principle of separation of powers – Congress legislates but it is the judiciary that adjudicates. Where an amendatory law imposes a new penalty, such as a fine, could that penalty be imposed on someone who committed the offense before the amendment, and whose case was t hen on appeal at the time of effectivity of the amendatory law? In Gonzales v. Court of Appeals, 277 SCRA 518 (1997), as well as in Cadua v. Court of Appeals,  312 SCRA 703 (1999), the Court said the new penalty may be imposed since an appeal throws the entire case open for review. One may wonder, however, how such reasoning could provide a satisfactory answer to the question as to why the imposition of the new penalty (fine) is not a violation of the proscription against ex post facto laws. Would it not be a case of a law “which changes the punishment and inflicts a greater punishment than the law annexed to the crime when it was committed”? Valeroso v. People, 546 SCRA 450 (2008), provided a better answer. There is no violation where overall the resulting penalty is still more beneficial to the accused, such as when the total  period imprisonment is reduced. REVIEW ENTER With regard to the rule againstJ exURISTS post facto laws, it hasCalso been observed that, “[a]s the text of the Clause makes clear, it ‘is a limitation upon the powers of the Legislature, and does not of its own force apply to the Judicial Branch of government.’” Nevertheless, “limitations on ex post facto  judicial BARofRdue EVIEW 2017 decisionmaking are inherent in the notion process.” Indeed, “[d]eprivation of the right to fair  warning, . . . can result both from vague statutory language and from an unforeseeable and retroactive  judicial expansion of statutory language that appears narrow and precise on its face.”83 R 83 A Library Of Liberties  Rogers v. Tennessee, 532 U.S. 451 (2001) B G vis-à-vis An Arsenal Of Arms R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers Page 98 of 99 1.  Republic v. Cojuangco, Jr., 674 SCRA 492 (2012) If the prescriptive period is extended by law such that it makes it longer, does it affect those crimes which were committed prior to the amendment of the law? In Romualdez v. Marcelo, 497 SCRA 89 (2006), the Court said no. It there observed: “Notably, Section 11 of R.A. 3019 now provides that the offenses committed under that law prescribes in 15 years. Prior to its amendment by Batas Pambansa (B.P.) Blg. 195 on March 16, 1982, however, the prescriptive period for offenses punishable under R.A. 3019 was only 10 years. Since the acts complained of were committed before the enactment of B.P. 195, the prescriptive period for such acts is 10 years as provided in Section 11 of R.A. 3019, as originally enacted.” The Court made reference to its earlier pronouncement in People v. Pacificador , 354 SCRA 310 (2001) that the longer prescriptive period of fifteen (15) years would not apply for the reason that the amendment, not being favorable to the accused cannot be given retroactive effect. Cojuangco applied and reiterated the foregoing principle. And, the Court reminded us also of the rationale for the rule on prescription: “Prescription of actions is a valued rule in all civilized states from the beginning of organized society. It is a rule of fairness since, without it, the plaintiff can postpone the filing of his action to the point of depriving the defendant, through the passage of time, of access to defense witnesses who would have died or left to live elsewhere, or to documents that would have been discarded or could no longer be located. Moreover, the memories of witnesses are eroded by time. There is an absolute need in the interest of fairness to bar actions that have taken the plaintiffs too long to file in court.”84 2.  Bureau of Customs Employees Association (BOCEA) v. Teves, 661 SCRA 589 (2011) Here, the argument was advanced that the Attrition Law (R.A. No. 9335) is a bill of attainder. The Court said no, it is not. It explained that “[a] bill of attainder is a legislative act which inflicts punishment on individuals or members of a particular group without a judicial trial. Essential to a bill of attainder are a specification of certain individuals or a group of individuals, the imposition of a punishment, penal or  otherwise, and the lack of judicial trial.” It also gave a brief background o n bills of attainder as discussed  by Justice Feliciano in his concurring opinion inTuason v. Register of Deeds, Caloocan City, 157 SCRA 613 (1988), specifically that bills of attainder are “an ancient instrument of tyranny” whereby Parliament would at times enact bills or statutes which declared certain persons attainted and their blood corrupted so that it lost all heritable quality, though “[i]n more modern terms, a bill of attainder is essentially a usurpation of judicial power by a legislative body. It envisages and effects the imposition of a penalty –  the deprivation of life or liberty or property – not by the ordinary processes of judicial trial, but by legislative fiat. While cast in the form of special legislation, a bill of attainder (or bill of pains and 84 J R C  Take note of the difference between the URISTS discovery of possible criminal acts in behest loans in earlier cases and in the investment  EVIEW ENTER involved in the instant case: “In the prosecution of cases of behest loans, the Court reckoned the prescriptive per iod from the discovery of such loans. The reason for this is that the government, as aggrieved party, could not have known that those loans existed when they were made. Both parties AR to such loans supposedly conspired to perpetrate fraud againstEVIEW the government. They could only have been discovered after the 1986 EDSA Revolution when the people ousted President Marcos from office. And, prior to that date, no person would have dared question the legality or propriety of the loans. B R R 2017 B G “Those circumstances do not obtain in this case. For one thing, what is questioned her e is not the grant of behest loans that, by their  nature, could be concealed from the public eye by the simple expedient of suppressing their documentations. What is rather involved here is UCPB’s in vestment in UNICOM, which corporation is allegedly owned by respondent Cojuangco, supposedly a Marcos crony. That investment does not, however, appear to have been wi thheld from the curious or from those who were minded to know like banks vis-à-vis A Library Arsenal OfofArms or competing businesses. Indeed, the OSGOf madeLiberties no allegation that responden An t members of the board directors of UCPB connived with UNICOM to suppress public knowledge of the investment.”