Codes and Notes on Constitutional Law II

8/20/2019 Codes and Notes on Constitutional Law II

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CODES AND NOTES ON CONSTITUTIONAL LAW IINOTES AND CASES ON CONSTITUTIONAL LAW III. THE INHERENT/ FUNDAMENTAL POWERS OF THE STATE1. Police Power2. Power of Eminent Domain3. Power of Taxation

· They are inherent powers because they belong to the very essence of governmentan without them no government can exist.

Similarities, Distinctins, an! Limitatin

Similarities"· They are inherent in the !tate an may be exercise by it without nee of expressconstitutional grant.· They are necessary an inispensable The !tate cannot continue or be e"ectiveunless it is able to

exercise them.

· They are methos by which the !tate interferes with private rights.· They all presuppose an e#uivalent compensation for the private rights interferewith.· They are exercise primarily by the legislature.

Di#erences"Plice P$er Eminent Dmain Ta%atin

$s to

regulation%extent

of power

regulates both

liberty an

property

regulates property

rights only

&egulates property

rights only

$s to who may

exercise

only the

government

government an

some private

entities

only the

government

$s to the property

ta'en

estroye because

it is

noxious or

intene for

noxious purpose

(wholesome

(ta'en for a public

use or purpose

(wholesome

(ta'en for a public

use or purpose

$s to

)ompensation

intangible altruistic

feeling that the

personhas contribute to

the

general welfare

full an fair

e#uivalent of the

propertyexpropriate

protection an

public

improvements forthe taxes pai

Limitatins"*a+ ,ay not be exercise arbitrarily to the pre-uice of the ill of &ights.


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*b+ !ub-ect at all times to the limitations an re#uirements of the )onstitutionan may in proper cases be annulle by the courts/ i.e. when there is a graveabuse of iscretion.

A. POLICE POWER

Plice P$er 0 is an inherent power of the !tate to promote the welfare of societyby restraining an regulating the use of liberty an property.

&'sti(catin ) e%istence"

· Salus populi est suprema lex – the welfare of the people is the supreme law

· Sic utere tuo ut alienum non laedas – a person must use his own property soas not to in-ure another

Sc*e"*a+ cannot be bargaine away through the meium of a treaty or contract (Stone vMississippi)*b+ may use taxing power as its implement (Tio vs Videogram Regulatory Board)*c+ may use eminent omain as its implement (Assoc. of Small Landoners vs Sec.of Agrarian Reform)*+ coul be given retroactive e"ect an may reasonably impair veste rights orcontracts *police power prevails over contract+*e+ ynamic/ not static/ an must move with the moving society it is suppose toregulate

W+ ma e%ercise Plice P$er-

*a+ the egislature *inherent+*b+ Presient *by elegation+*c+ aministrative boars *by elegation+*+ lawma'ing boies on all municipal levels/ incluing barangay *by elegation+*e+ ,unicipal governments % 45s *conferre by statute 0 general welfare clause of&$ 6178+

· 9ot being a political subivision but merely an executive authority it has no policepower. MMDA . 0el1Air 2illa3e Assc.4

Tests Limitatins4"

*a+ La$)'l s'56ect 0 interests of the public generally/ as istinguishe from thoseof a particular class/ re#uire the exercise of police power

*b+ La$)'l means 0 the means employe are reasonably necessary for theaccomplishment of the purpose an not unuly oppressive upon iniviuals

A!!itinal limitatins $+en e%ercise! 5 !ele3ate4 :9achura &eviewer;"· express grant by law *e.g. &$ 6178+


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· within territorial limits *for 45s+· must not be contrary to law (!ity "overnment of #ue$on !ity vs %ricta)· for municipal orinances (

1. must not contravene the )onstitution or any statute2. must not be unfair an oppressive3. must not be partial an iscriminatory

n Ermita1Malate Htel an! Mtel O*eratrs Assciatin, Inc. . Mar )Manila/ police power has been characteri?e as the most essential/ insistent anleast limitable of powers extening as it oes @to all great public nees.A

@:TBhe mere fact that some iniviuals in the community may be eprive of their business or a particular moe of earning a living cannot prevent the exerciseof police power. .. :P;ersons license to pursue occupations which may in the publicnee an interest be a"ecte by the exercise of the police power embar' in these

occupations sub-ect to the isavantages which may result from the exercise of thatpower. A

overnment can ta'e away a license an increase the cost of license fees even toprohibitive levels/ if public interest ictates so/ without any constitutional violations.

icenses for regulating non(useful occupation are inciental to the exercise of policepower an the right to exact fees is may be implie from that power to regulate. >nsetting the fees/ municipal corporations are given wier iscretion in this class oflicenses *than for licenses issue to regular business+. )ourts have generally uphelthese because of the esirability of imposing restraints on iniviuals who engagein these unuseful enterprises.

· >n 7nt . IAC/ the )ourt here rule that the ban on transportation of carabaouner the assaile orinance an their outright conCscation an isposal withoutcourt hearing is a violation of ue process hence it is an invali exercise of policepower.

The court aopte the measures lai own in the Toribio case.

Protection general welfare is a function of police power which both restrains an isrestraine by ue process/ which re#uires notice an hearing.

)ase emphasi?e the nee to have a lawful metho to follow ue processre#uirement .

&easons why orinance is invali are 9o reasonable connection between means employe *absolute ban onmovement of carabeef+ an purpose sought to be achieve *conservation ofcarabao for general welfare+ 4nuly oppressive since petition not given ue process or opportunity to behear in proper court


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0. EMINENT DOMAIN

Eminent Dmain 0 is the use of the government of its coercive authority/ upon -ustcompensation/ to forcibly ac#uire the neee property in orer to evote the sameto public use. Eminent omain is also 'nown as expropriation/ or conemnation.

W+ ma E%ercise-1. The )ongress *inherent+2. Presient3. various local legislative boies


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:. Priate Pr*ert· ;eneral R'le" anything that can come uner the ominion of man is sub-ect toexpropriation· E%ce*tins" money an cose in action *personal right not reuce intopossession/ i.e. the right to

bring an action to recover ebt/ money or thing+· Private property alreay evote to public use cannot be expropriate by aelegate acting uner a general grant of autority (!ity of Manila vs !inese!ommunity)


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· >n Heirs ) Ar!na . Rees/ the )ourt hel that the )onstitution unerstanpublic use in a broa sense as meaning public welfare. That inclues evelopmentof tourism.

?. &'st Cm*ensatin

&'st cm*ensatin 0 is fair an full e#uivalent payment for the loss sustaine/which is the measure of the inemnity/ not whatever gain woul accrue to theexpropriating agency. >t is not mar'et value per se. E*@a . D'la4

· W+ere nl *art ) t+e *r*ert is e%*r*riate!" entitlement toconse&uential damages/ if any

L conse&uential ene*ts must be eucte from the total compensationprovie conse#uential

beneCts oes not excee conse#uential amages

Payment of the correct amount L Payment within a reasonable time

· Frm ) Cm*ensatin" ,oney *Fowever/ in Assoc. of Small Landonersvs Sec. of Agrarian Reform+ payment is allowe to be mae partly in bonsbecause it eals with a revolutionary 'in of expropriation+.

· Trans)er ) Title" payment of -ust compensation before title is transferre.

· Rec=nin3 *int ) mar=et al'e ) *r*ert" either as of the ate ofta'ing or Cling of the complaint/ whichever comes Crst

· Entitlement ) interest" General Rule: when there is elay/ there must be interest by way of

amages (Art. ,,-+ !!) Exception: when waive by not claiming the interest

· Pament ) Ta%es " taxes pai from the time of the ta'ing until the transfer ofthe title/ uring which the owner i not en-oy any beneCcial use of the property/are reimbursable by the expropriator.

· Ri3+t ) t+e lan!$ner in case ) nn1*ament" General Rule: lanowner is not entitle to recover possession of the property/but only to eman payment Exception: when the government faile to pay -ust compensation within = yearsfrom the Cnality of -ugment in expropriation proceeings/ there is a right to recoverproperty

· >n De nec+t . 0a'tista/ the court rule that the expropriation proceeingagainst the property of petitioner was arbitrary an cannot receive -uicial approval.

There was another area where the expansion of ED!$ can be unerta'en/ which willcost government less/ a"ect lesser homeowners/ etc.


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· ut in Re*'5lic s. nec+t, the same property was orere expropriate.$pparently/ P 3n the case Re*'5lic . PLDT/ the )ourt orere the PDT to allow thereconnection of telephone lines of the &epublic.

9o cogent reason appears why Eminent Domain may be availe of toimpose only a buren upon the owner of conemne property without loss oftitle or possession for public use sub-ect to -ust compensation )ase highlights that even services may be sub-ecte to eminent omain

· >n Cit ) Manila . C+inese Cmm'nit ) Manila/ the )ourt sai that @:T;hevery founation of the right to exercise eminent omain is a genuine necessity anthat necessity must be of public character.A

· >n E*@a . D'la/ P.D. 9os. 67/


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· amount of fees re#uire is usually

limite to the

cost of regulation

Sc*e

· all income earne in the taxing state/ whether by citi?ens or aliens/ an allimmovable an tangible personal properties foun in its territory/ as well as tangiblepersonal property owne by persons omicile therein

P$er t Ta% Incl'!es P$er t Destr*1+ when use valily as an implement of the police power in iscouraging an ine"ect ultimately prohibiting certain things or enterprises inimical to public welfare

P$er t Ta% Des Nt Incl'!e P$er t Destr· where the tax is use solely for the purpose of raising revenues

W+ Ma E%ercise

1. egislature % )ongress *inherent+2. Presient *by elegation % tari" powers :!ec. 2 *2+/ $rt. Q>/ )onsti;+3. local legislative boies *conferre by irect authority :!ec. =/ $rt. R/ )onsti;+

Limitatins ) Ta%atin"1. Due Process of aw2. E#ual Protection3. Public Purpose

9. D'e Prcess· S'5stantie " tax shoul not be conCscatory except when use as an implementof police power

· Prce!'ral " ue process oes not re#uire previous notice an hearing before alaw prescribing speciCc taxes on speciCc articles may be enacte. Fowever/ wherethe tax to be collecte is to be base on the value of the taxable property/ thetaxpayer is entitle to be notiCe of the assessment proceeings an to be heartherein on the correct valuation of the property.

:. E8'al Prtectin· emboie in !ec. 2 *1+/ $rt. Q>/ 1N6 )onstitution *The rule of taxation shall beuniform an e#uitable. The )ongress shall evolve a progressive system of taxation.+

· Uni)rmit 0 persons or things belonging to the same class shall be taxe at thesame rate

Re8'isites *Tan vs Del &osario+"*a+ stanars that are use are substantial an not arbitrary*b+ categori?ation is germane to achieve the legislative purpose*c+ the law applies/ all things being e#ual/ to both present an future

conitions*+ classiCcation applies e#ually well to all those belonging to the same

class

· E8'ita5le ta%atin 0 base on the capacity to pay


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· E8'alit in ta%atin 0 tax shall be strictly proportional to the relative value of theproperty

· Pr3ressie sstem ) ta%atin 0 the rate increases as the tax base increases


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t is not -ust a protection of the right to be alive or to the security of one5s limb

against physical harm. The right to life is the right to a goo life... a life of ignityan... a ecent stanar of living.:. Li5ert*1+ freeom to o right an never wrong (Maini)*2+ right to be free from arbitrary personal restraint or servituef create by statue/ it may be abolishe by the legislature at any time.· ,ere privileges are not property rights an are therefore revocable at will

As*ects ) D'e Prcess1. !ubstantive Due Process2. Proceural Due Process

· $s a substantive re#uirement/ it is a prohibition of arbitrary laws.· $s a proceural re#uirement/ it relates chiey to the moe of proceure whichgovernment agencies must follow in the enforcement an application of laws. >t is aguarantee of proceural fairness.


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S'5stantie D'e Prcess

S'5stantie !'e *rcess re#uires intrinsic valiity of the law in interfering with

the rights of the person to his life/ liberty or property

Re8'isites"*a+ awful !ub-ect*b+ awful ,eans

Prce!'ral D'e Prcess

Prce!'ral !'e *rcess is the restriction on actions of -uicial an #uasi(-uicialagencies of government.

9. &'!icial D'e Prcess

Re8'isites"*a+ >mpartial an )ompetent )ourt*b+ Hurisiction lawfully ac#uire over the person of the efenant an%or property*c+ Fearing

· not necessarily trial(type hearing submission of position papers is enough· right of a party to cross(examine the witness against him in a civil case is aninispensable part of ue process· the Cling of a motion for reconsieration cures the efect of absence of a

hearing· )ases in which notice an hearing may be ispense with without violating

ue process abatement of nuisance per se preventive suspension of a civil servant facing aministrative

charges cancellation of passport of a person sought for the commission of a

crime statutory presumptions

*+ Hugment renere upon lawful hearing 0anc Es*anl Fili*in . Palanca4

:. A!ministratie D'e Prcess

Re8'isites"*a+ &ight to a hearing*b+ Tribunal must consier the evience presente*c+ Decision must have something to support itself *+ Evience must be !ubstantial*e+ Decision must be renere on the evience presente at the hearing/ or at leastcontaine in the recor an isclose to the parties a"ecte*f+ Tribunal/ boy/ or any of its -uges must act on its or his own inepenentconsieration of the facts an law of the controversy


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*g+ Decision is renere in such a manner that the parties to the proceeing can'now the various issues involve/ an the reason for the ecision renere

· >n aministrative proceeings/ the #uantum of proof re#uire is only s'5stantialei!ence/ such relevant evience as a reasonable min might accept as ae#uateto support a conclusion.

· The la$ is a3'e when it lac's comprehensible stanars that men @of commonintelligence must necessarily guess as to its meaning an i"er as to its application.>t is repugnant to the )onstitution in two respects

J it violates ue process for failure to accor persons fair notice of conuct toavoi an/

J it leaves law enforcers unbrile iscretion in carrying out its provisionsan becomes arbitrary exing of the overnment muscle.

· >n Estra!a s. San!i3an5aan/ it was hel that there was no violation of ueprocess because the nature of the charges against the petitioner is not uncertainan voi merely because general terms are use or because it employe terms that

were not eCne. The $nti(Pluner law oes not violate ue process since it eCnesthe act which it purports to punish/ giving the accuse fair warning of the chargesagainst him/ an can e"ectively interpose a efense against on his behalf.

· A !onnecticut statute ma0ing it a crime to use any drug or article to preventconception violates te rigt of marital privacy ic is itin te penumra ofspeci*c guarantees of te Bill of Rigts.

$lthough the ill of &ights oes not mention UprivacyV the )ourt rule thatthat the right was to be foun in the WpenumbrasW of other constitutionalprotections. @The Xirst $menment has a penumbra where privacy ispenumbra where privacy is protecte from governmental intrusion.A

· >n Lc+ner . Ne$ 7r= / ochner was charge with violation of the labor laws of9ew Yor' for wrongfully an unlawfully permitting an employee to wor' more than78 hours in one wee'. The statute allegely violate manates that no employeeshall contract or agree to wor' more than 18 hours per ay.>ssue Ihether the statute is unconstitutional.&uling Yes.

The statute is unconstitutional. The statute interferes with the liberty of a personan the right of free contract between employer an employee by etermining thehours of labor in the occupation of a ba'er without reasonable groun for oing so.

The general right to ma'e a contract in relation to oneVs business is a libertyprotecte by the 1nthis instance/ the 1


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The trae of a ba'er is not an alarmingly unhealthy one that woul warrant thestateVs interference with rights to labor an contract.

1octrine2 Te rule must ave a more direct relation+ as means to an end+ and teend itself must e appropriate and legitimate+ efore an act can e eld to e validic interferes it te general rigt of an individual to e free in is person and

in is poer to contract in relation to is on laor.

· Our cases inclue )ourt of >nustrial &elations An3 Ti5a s. CIR4 as anaministrative court which exercises -uicial an #uasi(-uicial functions in theetermination of isputes between employers an employees. 9ational

Telecommunications )ompany *PF>)O,!$T vs. $lcua?+/ 9ational abor &elations)ommission or 9&) *DP vs. 9&)+ an school tribunals *$teneo vs. )$(oar ofDiscipline/ $lcua? vs. P!$/ Nn s. &'!3e Dames/ Tin'er vs. Des ,oines)ommunity !chool District+ also are clothe with #uasi(-uicial function. >t is a#uestion of whether the boy or institution has a -uicial or #uasi(-uicial functionthat ma'es it boun by the ue process clause. *Huicial function is synonymous to

-uicial power which is the authority to settle -usticiable controversies or isputes

involving rights that are legally enforceable an emanable or the reress ofwrongs for violations of such rights. >t is a etermination of what the law is an whatthe legal rights of the parties are with respect to a matter in controversy+.

· >n An3 Ti5a s. CIR/ the )ourt lai own carinal re#uirements in aministrativeproceeings which essentially exercise a -uicial or #uasi-uicial function. These are*1+ the right to a hearing/ which inclues the right to present oneVs case an submitevience in support thereof *2+ The tribunal must consier the evience presente*3+ The ecision must have something to support itself *


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· emboie in a separate clause to provie for a more speciCc guaranty againstunue favoritism or hostility from the government

D'e Prcess Cla'se attac's ar5itrariness in general

E8'al Prtectin Cla'se attac's 'n$arrante! *artialit r *re6'!ice

S'5stantie E8'alit 0 all persons or things similarly situate shoul be treateali'e/ both as to rights conferre an responsibilities impose.

E8'alit in en)rcement ) t+e la$ 0 law be enforce an applie e#ually

Re8'isites ) 2ali! Classi(catin"*a+ it must be base on substantial istinctions*b+ it must be germane to the purposes of the law*c+ it must not be limite to existing conitions only

must be enforce as long as the problem sought to be correcte exists*+ it must apply e#ually well to all members of the class

both as to rights conferre an obligations impose

· >n De ;'@man . Cmelec, petitioners theori?e that !ec. n Ormc S'3ar Central . Ormc Cit/ Ormoc )ity imposes a tax on Ormoc!ugar )entral by name. Ormos !ugar )entral is the only sugar central in Ormoc )ity.

The )ourt hel that such orinance is not vali for it woul be iscriminatooryagainst the Ormoc !ugar )entral which alone comes uner the orinance.

C. SEARCH AND SEIURESectin :, Art. III. T+e ri3+t ) t+e *e*le t 5e sec're in t+eir

*ersns,+'ses, *a*ers, an! e#ects a3ainst 'nreasna5le searc+es an!

sei@'res ) $+ateer nat're an! )r an *'r*se s+all 5e inila5le, an!

n searc+ $arrant r $arrant ) arrest s+all iss'e e%ce*t '*n *r5a5le

ca'se t 5e !etermine! *ersnall 5 t+e 6'!3e a)ter e%aminatin 'n!er

at+ r armatin ) t+e cm*lainant an! t+e $itnesses +e ma *r!'ce,

an! *artic'larl !escri5in3 t+e *lace t 5e searc+e! an! t+e *ersns r

t+in3s t 5e sei@e!.

Sectin :, Art. III 0 eals with tangiles emboies the “castle” doctrine *aman5s house is his castle a citi?en en-oys the right against oScial intrusion an ismaster of all the surveys within the omain an privacy of his own home.+


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· This provision applies as a restraint irecte only against the government an itsagencies tas'e with enforcement of the law. >t oes not protect citi?ens fromunreasonable searches an sei?ures perpetrate by private iniviuals.

Sectin


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n Terr . O+i/ the stop(an(fris' rule is state thus @*I+here a police oScerobserves unusual conuct which leas him reasonably to conclue in the light of hisexperience that criminal activity may be afoot an that the person with whom he is

ealing may be arme an presently angerous/ where in the course ofinvestigation of this behavior he ientiCes himself as a policeman an ma'esreasonable in#uiries/ an where nothing in the initial stages of the encounter servesto ispel his reasonable fear for his own or others5 safety/ he is entitle for theprotection of himself an others in the area to conuct a carefully limite search ofthe outer clothing of such persons in an attempt to iscover weapons which mightbe use to assault him.A

· St*1an!1)ris= r'le serves a t$1)l! interest*1+ the general interest of e"ective crime prevention an etection*2+ the more pressing interest of safety an self(preservation. Malacat4

G. r'tine searc+es at 5r!ers an! *rts ) entr

. searc+es ) 5'sinesses in t+e e%ercise ) isitrial *$ers t en)rce*lice re3'latins

2ali! Warrantless Arrest1. in agrante elicto2. hot pursuit3. the o"ener escape from the penal establishment

Re8'isites ) a ali! $arrantArrest Warrant Searc+ Warrant

1. Pr5a5le Ca'se

must refer to one *1+

speciCc o"ense

!uch facts an

circumstances which

woul lea a reasonably

pruent man to believe

that an

o"ense has been

!uch facts an

circumstances which

woul lea a reasonably

pruent man to believe

that an

o"ense has been


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committe an the person

sougt to e arrested ad

committed it

committe

an the o'ects sougt in

te connection of te

o3ense are in

te place sougt to e

searced2. Persnal

!eterminatin )

*r5a5le ca'se 5 t+e

6'!3e

The -uge personally

determines the existence

of probable cause it is not

necessary that he shoul

personally examine the

complainant an his

witnesses (Soliven vs

Ma0asiar)

Prce!'re"

*1+ personally evaluate

the Cscal5s report/ or

*2+ if :1; is insuScient/

isregar it an re#uire

the submission of

supporting aSavits of

witnesses

Preliminar in8'ir

*tas' of

the -uge+ 0 etermination

of probable cause for the

issuance of warrant of

arrest

Preliminar

inesti3atin *r*er

*tas' of the prosecutor+ 0

ascertainment whether

the o"ener shoul be

hel for trial or be

The -uge must personally

e4amine in the form of

searching #uestions an

answers...

in writing an uner

oath...

the complainants an his

witnesses...

on facts personally 'nown

to

them...

an attach to the recor

their

sworn statements an

aSavits.

(Silva vs 5residing 6udge)

release

3. A)ter e%aminatin

'n!er at+ r

armatin ) t+e

cm*lainant an! t+e

$itnesses +e ma

*r!'ce

9ot merely routinary but

must

be proing an exhaustive

9ot merely routinary but

must

be proing an exhaustive


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!escri*tin contain the name7s of te

persons to e arrested

E%ce*tin" if there is

some descriptio personae

which will enable the

oScer to ientify theaccuse

escription therein is as

speciCc

as the circumstances will

orinarily allow.

E%ce*tin" when no

other moreaccurate an etaile

escription coul have

been

given.

· >n 2almnte . ;en. De 2illa/ the )ourt hel that not all searches an sei?uresare prohibite. Those which are reasonable are not forbien. $ reasonable searchis not to be etermine by any Cxe formula but is to be resolve accoring to thefacts of the case. )hec'points are not illegal per se... &outine inspection an few

#uestions o not constitute unreasonable searches. >f the inspection becomes morethorough to the extent of becoming a search/ this can be one when there iseeme to be probable cause. >n the latter situation/ it is -ustiCable as a warrantlesssearch of a moving vehicle.

Pr5a5le Ca'se 0 facts an circumstances anteceent to the issuance of a warrantthat are in themselves suScient to inuce a cautious man to rely upon them.

· >n Crr . Lisin3/ the $Savit of )ol. )astillo state that in several issues of thePhilippine TimesA... we foun that the sai publication in fact foments istrust anhatre against the government of the Philippines. The )ourt hel that the aSavitoes not establish probable cause/ an is nothing but conclusions of law.

· >n 0'r3s . C+ie) ) Sta# / a search warrant for the newspaper IE Xorum isissue on the basis of a broa statement of the military that urgos/ Hr. is @inpossession of printing e#uipment an other paraphernalia... use as means ofcommitting the o"ense of subversion.A The )ourt hel that such allegation is notsuScient to establish probable cause. >t is a mere conclusion of law unsupporte byparticulars.

The )ourt also hel that the search warrant escription has the @sweeping tenorAma'ing the ocument a general warrant. The search warrant particularly statesAallprinting e#uipment/ typewriters... of the IE Xorum newspaper an any otherocuments...A >t is not re#uire that the property to be searche shoul be owne

by the person against whom the search warrant is irecte. >t is suScient that theproperty is uner the control or possession of the person sought to be searche.

· >n Slien . &'!3e Ma=asiar/ the )ourt clariCe the meaning of @personallyA inthe search an sei?ure clause. >t state that in arriving at a conclusion as to theexistence of existence of probable cause/ what is re#uire is personal eterminationan not personal examination.


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· >n Lim . Feli%/ the )ourt hel that the -uge in issuing a warrant of arrest cannotrely solely on the certiCcation or recommenation of a prosecutor that probablecause exists. The -uge must loo' at the report/ the aSavits/ the transcripts ofstenographic notes *if any+/ an all other supporting ocuments behin theProsecutor5s certiCcation.

· >n Stne+ill . Di=n/ the )ourt hel that the following escription is insuScientfor it amounts to a general warrant authori?ing the oScer to pic' up anything hepleases @ oo' of accounts/ Cnancial recors/ vouchers...an other ocumentsshowing all business transactions....A The )ourt further hel that the ob-ection to anunlawful search or sei?ure an to evience obtaine thereby is purely personal ancannot be availe by thir parties.

D. MIRANDA RI;HTSSectin 9:, Art. III.

9. An *ersn 'n!er inesti3atin )r t+e cmmissin ) an #ense s+all

+ae t+e ri3+t t 5e in)rme! ) +is ri3+t t remain silent an! t +ae

cm*etent an! in!e*en!ent c'nsel *re)era5l ) +is $n c+ice. I) t+e*ersn cannt a#r! t+e serices ) c'nsel, +e m'st 5e *ri!e! $it+

ne. T+ese ri3+ts cannt 5e $aie! e%ce*t in $ritin3 an! in t+e *resence

)

c'nsel.

:. N trt're, )rce, ilence, t+reat, intimi!atin, r an t+er means

$+ic+ itiate t+e )ree $ill s+all 5e 'se! a3ainst +im. Secret !etentin

*laces, slitar, incmm'nica!, r t+er similar )rms ) !etentin are

*r+i5ite!.

. T+e la$ s+all *ri!e )r *enal an! ciil sanctins )r ilatins ) t+is

Sectin as $ell as cm*ensatin t t+e re+a5ilitatin ) ictims ) trt're

r similar *ractices, an! t+eir )amilies.

· calle the Miran!a DctrineJ *,irana vs $ri?ona+

Miran!a Dctrine prior to any #uestioning uring custoial investigation/ theperson must be warne that he has a right to remain silent/ that any statement hegives may be use as evience against him/ an that he has the right to thepresence of an attorney/ either retaine or appointe. The efenant may waivee"ectuation of these rights/ provie the waiver is mae voluntarily/ 'nowingly/ an

intelligently.

P'r*se ) t+e Dctrine>n ,irana v $ri?ona/ the 4! !upreme )ourt establishe rules t *rtect acriminal !e)en!antKs *riile3e a3ainst sel)1incriminatin )rm t+e*ress'res arisin3 !'rin3 c'st!ial inesti3atin 5 t+e *lice. Thus/ toprovie practical safeguars for the practical reinforcement for the right against compulsory self(incrimination/ the )ourt hel that @the prosecution may not use statements/ whether exculpatory or inculpatory/ stemming from custoial


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interrogation of the efenant unless it emonstrates the use of proceural safeguars e"ective to secure the privilege against self(incrimination.

Re8'isites ) t+e Miran!a Dctrine*1+ any person uner custoial investigation has the right to remain silent*2+ anything he says can an will be use against him in a court of law

*3+ he has the right to tal' to an attorney before being #uestione an to have hiscounsel present when being #uestione an*


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*a+ &ight to remain silent*b+ &ight to )ounsel

Ri3+ts T+at Cannt 0e Waie!*a+ &ight to be informe of his right to remain silent an to counsel*b+ &ight to counsel when ma'ing the waiver of the right to remain silent or to

counsel· &ight to counsel e parte is not unlimite. $ccuse cannot repeately as'for postponement. Fe must be provie with counsel e oCcio.· &$ 638N victims of un-ust imprisonment may Cle their claims with the oarof )laims uner DOH

· Res ;estae The eclaration of the accuse ac'nowleging guilt mae to thepolice es' oScer after the crime was committe may be given in evience againsthim by the police oScer to whom the amission was mae/ as part of the resgestae.

· >n Pe*le . ;alit/ rights uner custoial investigation may be waive. The

)onstitution says @These rights cannot be waive except in writing an in thepresence of counsel.A >n localities where there are no lawyers/ the !tate must bringthe iniviual to a place where there is one.

· Terminatin ) ri3+ts 'n!er c'st!ial inesti3atin" Ihen )harges are Cleagainst the accuse *in such case/ !ections 1< an 16 come into play+.

· >n ;'tan3 . Pe*le/ the )ourt hel that urine sample is amissible. @Ihat the)onstitution prohibits is the use of physical or moral compulsion to extortcommunication from the accuse/ but not an inclusion of his boy in evience/when it may be material. >n fact/ an accuse may be valily compelle to bephotographe or measure/ or his garments or shoes remove or replace/ or tomove his boy to enabl'e the foregoing things to be one/ without running afoul of the proscription against testimonial compulsion.

E. RI;HT TO 0AIL

Sectin 9


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*b+ !ecurity bon

W+ Ma In=e-$ person uner etention even if no formal charges have yet been Cle *&ule 11


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*b+ The constitutional right is available only in criminal cases/ not/ e.g. ineportation an extraition proceeings.

Nte"*a+ &ight to bail is not available in the military.

· >n Cmen!a!r . De 2illa/ solier uner court martial oes not en-oy the rightto bail. >t is because of the isciplinary structure of the military an because soliersare allowe the Cuciary right to bear arms an can therefore cause great havoc...9or can appeal be mae to the e#ual protection clause ebcause e#ual protectionapplies only to those who are e#ually situate.

*b+ $part from bail/ a person may attain provisional liberty throughrecogni?ance.

· >n US . P'r'3anan/ the )ourt hel that extraition is not a criminal proceeing.Fence/ since bail is available only in criminal proceeings/ a responent in anextraition proceeing is not entitle to a bail. Fe shoul apply for a bail in the court

where he will be trie.

F. RI;HTS OF THE ACCUSEDSectin 9>, Art. III.

9. N *ersn s+all 5e +el! t ans$er )r a criminal #ense $it+'t !'e

*rcess ) la$.

:. In all criminal *rsec'tins, t+e acc'se! s+all 5e *res'me! inncent

'ntil t+e cntrar is *re!, an! s+all en6 t+e ri3+t t 5e +ear! 5

+imsel) an! c'nsel, t 5e in)rme! ) t+e nat're an! ca'se ) t+e

acc'satin a3ainst +im, t +ae a s*ee!, im*artial, an! *'5lic trial, t

meet t+e $itnesses )ace t )ace, an! t +ae cm*'lsr *rcess t

sec're t+e atten!ance ) $itnesses an! t+e *r!'ctin ) ei!ence in +is

5e+al). H$eer, a)ter arrai3nment, trial ma *rcee! nt$it+stan!in3 t+e

a5sence ) t+e acc'se!" Pri!e!, t+at +e +as 5een !'l nti(e! an! +is

)ail're t a**ear is 'n6'sti(a5le.

T+e Ri3+ts ) t+e Acc'se! Incl'!e1. )riminal ue process2. Presumption of innocence3. &ight to be hear by himself or counsel


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a+ >nvestigation prior to the Cling of chargesb+ Preliminary examination an investigation after charges are Clec+ Perio of trial

Re8'irements ) Criminal D'e Prcess

1. >mpartial an competent court in accorance with proceure prescribe by law2. Proper observance of all the rights accore the accuse uner the )onstitutionan the applicable statutes *example of statutory right of the accuse right toPreliminary investigation+

· Mistrial may be eclare if shown that proceeings were hel unercircumstances as woul prevent the accuse from freely ma'ing his efense or the

-uge from freely arriving at his ecision.

· There is violation of ue process when law not publishe an a person isimpleae for violation of such law.

· There is violation of ue process when appeal is permitte by law but there isenial thereof.

:. Pres'm*tin ) Inncence

· uren of proof to establish the guilt of the accuse is with the prosecution.

· )onviction epens on the strength of prosecution/ not on the wea'ness of theefense

· The presumption may be overcome by contrary presumption base on theexperience of human conuct. *e.g unexplaine ight may lea to an inference ofguilt/ as @the wic'e ee when no man pursueth/ but the righteous are as bol as alion.A+

· The constitutional presumption will not apply as long as there is some rationalconnection between the fact prove an the ultimate fact presume/ an theinference of one fact from proof of another shall not be so unreasonable as to be apurely arbitrary manate. 0 )ooley

· 9o inference of guilt may be rawn against an accuse for his failure to ma'e astatement of any sort.

· >n D'mla . Cmelec/ for the purposes of is#ualiCcation in an election/ section< of P lg. =2 says thatA the Cling of charges for the commission of such crimesbefore civil court or military tribunal after preliminary investigation shall be primafacie evience of such fact *is#ualiCcation+.A The )ourt hel that this provisionviolates the guarantee of presumption of innocence. $lthough Cling of charges isonly prima facie evience an may be rebutte/ the proximity of elections anconse#uent ris' of not having time to rebut the prima facie evience alreay ine"ect ma'e him su"er as though guilty even before trial.


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E8'i*ise R'le 0 evience of both sies are e#ually balance/ in which case theconstitutional presumption of innocence shoul tilt the scales in favor oftheaccuse.f the accuse esires counsel/ but cannot a"or one/ a counsel e oCciomust be appointe

*+ >f the accuse esires to obtain his own counsel/ the court must give hima reasonable time to get one.

>. Nat're an! Ca'se ) Acc'satin

P'r*se )r t+e Ri3+t t 5e in)rme! ) t+e Nat're an! Ca'se )Acc'satin

*1+ To furnish the accuse with a escription of the charge against him as will enablehim to ma'e his efenses*2+ To avail himself of his conviction or ac#uittal against a further prosecution for thesame cause*3+ To inform the court of the facts allege.

· The escription an not the esignation of the o"ense is controlling *The realnature of the crime charge is etermine from the recital of facts in theinformation. >t is not etermine base on the caption or preamble thereof nor fromthe speciCcation of the provision of law allegely violate.+

· >f the information fails to allege the material elements of the o"ense/ the accusecannot be convicte thereof even if the prosecution is able to present evienceuring the trial with respect to such elements.

2i! )r 2a3'eness R'le 0 accuse is enie the right to be informe of thecharge against him an to ue process as well/ where the statute itself is couche insuch inde*nite language that it is not possible for men of orinary intelligence toetermine therefrom what acts or omissions are punishe anhence/ shall be avoie.


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· >n Estra!a s San!i3an5aan, the )ourt hel that the Void for Vaguenessoctrine merely re&uires a reasonale degree of certainty and not asolute

precision or matematical e4actitude.

?. T+e Trial

Factrs in Determinin3 W+et+er T+ere Is 2ilatin*a+ Time expire from the Cling of the information*b+ ength of elay involve*c+ &easons for the elay*+ $ssertion or non(assertion of the right by the accuse*e+ Pre-uice cause to the efenant.

· E#ect ) !ismissal 5ase! n ilatin ) t+is ri3+t" it amounts to an ac#uittalan can be use as basis to claim ouble -eopary. This woul be the e"ect even ifthe ismissal was mae with the consent of the accuse

Reme! i) t+e Ri3+t is 2ilate!

*1+ Fe can move for the ismissal of the case*2+ >f he is etaine/ he can Cle a petition for the issuance of writ of habeas corpus.

S*ee! trial 11. Xree from vexatious/ capricious an oppressive elays2. To relieve the accuse from neeless anxieties before sentence is pronounceupon him

Im*artial trial 0 the accuse is entitle to the @col neutrality of an impartial -ugeA. >t is an element of ue process.

· P'5lic trial" The attenance at the trial is open to all irrespective of theirrelationship to the accuse. Fowever/ if the evience to be auce is @o"ensive toecency or public moralsA/ the public may be exclue.

· The right of the accuse to a public trial is not violate if the hearings areconucte on !aturays/ either with the consent of the accuse or if faile to ob-ectthereto.

· The right to be present covers the perio from arraignment to promulgation ofsentence.

· ;eneral R'le" the accuse may waive the right to be present at the trial by notshowing up. Fowever/ the court can still compel the attenance of the accuse ifnecessary for ientiCcation purposes.

J E%ce*tin" >f the accuse/ after arraignment/ has stipulate that he isinee the person charge with the o"ense an name in the information/an that any time a witness refers to a name by which he is 'nown/ thewitness is to be unerstoo as referring to him.


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· Trial in $bsentia is manatory upon the court whenever the accuse has beenarraigne.

· There is also Promulgation in $bsentia

· Ihile the accuse is entitle to be present uring promulgation of -ugment/ the

absence of his counsel uring such promulgation oes not a"ect its valiity

· The trial in absentia oes not abrogate the provisions of the &ules of )ourtregaring forfeiture of bail bon if the accuse fails to appear at his trial.

· $ court has the power to prohibit a person amitte to bail from leaving thePhilippines as this is a necessary conse#uence of the nature an function of a bailbon

. T+e Ri3+t t Meet t+e Witnesses Face t Face

P'r*ses ) t+e Ri3+t t Meet t+e Witnesses Face t Face

*1+ To a"or the accuse an opportunity to cross(examine the witness*2+ To allow the -uge the opportunity to observe the eportment of the witness

Princi*al E%ce*tins t t+is Ri3+t*1+ The amissibility of @ying eclarationsA*2+ Trial in absentia uner !ection 1f a prosecution witness ies before his cross(examination can be complete/ hisirect testimony cannot be stric'en o" the recor/ provie the material points ofhis irect testimony ha been covere on cross.

· The right to confrontation may be waive.

G. Cm*'lsr Prcess

· The accuse is entitle to the issuance of supoena ad testi*candum ansupoena duces tecum for the purpose of compelling the attenance of witness anthe prouction of evience that he may nee for his efense.· Xailure to obey 0 punishable as contempt of court.· There are exceptional circumstances when the efenant may as' for conitionalexamination/ provie the expecte testimony is material of any witness unercircumstances that woul ma'e him unavailable from attening the trial.

. Trial in A5sentia

Trial in A5sentia Ma Onl 0e All$e! I) t+e Fll$in3 Re8'isites Are Met"


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*1+ the accuse has been valily arraigne*2+ $ccuse has alreay been arraigne*3+ $ccuse has been uly notiCe of the trial an*


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&ight was accore a person was sentence to a longer penalty than wassubse#uently mete out to another person convicte of the same o"ense.*umabon vs Director of Prisons+

4nlawful enial of bail

W+en nt aaila5le *enumeration not exclusive+

the person allege to be restraine is in the custoy of an oScer uner a processissue by the court which has -urisiction to o so

esaparecios *isappeare persons+ 0 persons coul not be foun remey is torefer the matter to )ommission on Fuman &ights

Prce!'re9ee to comply with writ isobeience thereof constitutes contempt

W+ ma s's*en! t+e *riile3e The Presient

;r'n!s )r S's*ensin ) t+e *riile3e1. invasion or rebellion2. when public safety re#uires it

Sectin 9, Art. 2II. T+e Presi!ent s+all 5e t+e Cmman!er1in1C+ie) ) all

arme! )rces ) t+e P+ili**ines an! $+eneer it 5ecmes necessar, +e

ma call 't s'c+ arme! )rces t *reent r s'**ress la$less ilence,

inasin r re5ellin. In case ) inasin r re5ellin, $+en t+e *'5lic

sa)et re8'ires it, +e ma, )r a *eri! nt e%cee!in3 si%t !as, s's*en!

t+e *riile3e ) t+e $rit ) +a5eas cr*'s r *lace t+e P+ili**ines r an

*art t+ere) 'n!er martial la$. Wit+in )rt1ei3+t +'rs )rm t+e*rclamatin ) martial la$ r t+e s's*ensin ) t+e *riile3e ) t+e $rit

) +a5eas cr*'s, t+e Presi!ent s+all s'5mit a re*rt in *ersn r in

$ritin3 t t+e Cn3ress. T+e Cn3ress, tin3 6intl, 5 a te ) at least

a ma6rit ) all its Mem5ers in re3'lar r s*ecial sessin, ma re=e

s'c+ *rclamatin r s's*ensin, $+ic+ recatin s+all nt 5e set asi!e

5 t+e Presi!ent. U*n t+e initiatie ) t+e Presi!ent, t+e Cn3ress ma,

in t+e same manner, e%ten! s'c+ *rclamatin r s's*ensin )r a *eri!

t 5e !etermine! 5 t+e Cn3ress, i) t+e inasin r re5ellin s+all *ersist

an! *'5lic sa)et re8'ires it.

T+e Cn3ress, i) nt in sessin, s+all, $it+in t$ent1)'r +'rs )ll$in3

s'c+ *rclamatin r s's*ensin, cnene in accr!ance $it+ its r'les

$it+'t nee! ) a call.

T+e S'*reme C'rt ma reie$, in an a**r*riate *rcee!in3 (le! 5 an

citi@en, t+e s'cienc ) t+e )act'al 5asis ) t+e *rclamatin )

martialla$ r t+e s's*ensin ) t+e *riile3e ) t+e $rit r t+e e%tensin


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t+ere), an! m'st *rm'l3ate its !ecisin t+eren $it+in t+irt !as )rm

its (lin3.

A state ) martial la$ !es nt s's*en! t+e *eratin ) t+e Cnstit'tin,

nr s'**lant t+e )'nctinin3 ) t+e ciil c'rts r le3islatie assem5lies,

nr a't+ri@e t+e cn)erment ) 6'ris!ictin n militar c'rts an!a3encies er ciilians $+ere ciil c'rts are a5le t )'nctin, nr

a'tmaticall s's*en! t+e *riile3e ) t+e $rit.

T+e s's*ensin ) t+e *riile3e ) t+e $rit s+all a**l nl t *ersns

6'!iciall c+ar3e! )r re5ellin r #enses in+erent in r !irectl

cnnecte! $it+ inasin.

D'rin3 t+e s's*ensin ) t+e *riile3e ) t+e $rit, an *ersn t+'s

arreste! r !etaine! s+all 5e 6'!iciall c+ar3e! $it+in t+ree !as,

t+er$ise +e s+all 5e release!.

Lansan3 !ctrine Lansan3 s ;arcia4" !) has the power to in#uire into thefactual basis of the suspension of the privilege of the writ. >t is written in $rticle Q>>/!ec. 1 of the )onstitution.

H. WRIT OF AMPARO

A.M. N. G119:1SC:? Se*tem5er :G4

THE RULE ON THE WRIT OF AMPARO

SECTION 9. !etition" The petition for a writ of amparo is a remey available toany person whose right to life/ liberty an security is violate or threatene withviolation by an unlawful act or omission of a public oScial or employee/ or of aprivate iniviual or entity.

The writ shall cover extralegal 'illings an enforce isappearances or threatsthereof.

SEC. :. #$o %a& 'ile" The petition may be Cle by the aggrieve party or by any#ualiCe person or entity in the following orer

1. $ny member of the immeiate family/ namely the spouse/ chilren an parentsof the aggrieve party

2. $ny ascenant/ escenant or collateral relative of the aggrieve party within thefourth civil egree of consanguinity or aSnity/ in efault of those mentione in thepreceing paragraph or


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3. $ny concerne citi?en/ organi?ation/ association or institution/ if there is no'nown member of the immeiate family or relative of the aggrieve party.

The Cling of a petition by the aggrieve party suspens the right of all otherauthori?e parties to Cle similar petitions. i'ewise/ the Cling of the petition by anauthori?e party on behalf of the aggrieve party suspens the right of all others/

observing the orer establishe herein.

SEC.


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together with any report

=. The actions an recourses ta'en by the petitioner to etermine the fate orwhereabouts of the aggrieve party an the ientity of the person responsible forthe threat/ act or omission an

7. The relief praye for. The petition may inclue a general prayer for other -ust ane#uitable reliefs.

SEC. . *ssuance of t$e #rit" 4pon the Cling of the petition/ the court/ -ustice or -uge shall immeiately orer the issuance of the writ if on its face it ought to issue. The cler' of court shall issue the writ uner the seal of the court or in case ofurgent necessity/ the -ustice or the -uge may issue the writ uner his or her ownhan/ an may eputi?e any oScer or person to serve it.

The writ shall also set the ate an time for summary hearing of the petition whichshall not be later than seven *6+ ays from the ate of its issuance.

SEC. G. !enalt& for Refusing to *ssue or Serve t$e #rit" $ cler' of court whorefuses to issue the writ after its allowance/ or a eputi?e person who refuses toserve the same/ shall be punishe by the court/ -ustice or -uge for contemptwithout pre-uice to other isciplinary actions.

SEC. . +o, t$e #rit is Served" The writ shall be serve upon the responent bya -uicial oScer or by a person eputi?e by the court/ -ustice or -uge who shallretain a copy on which to ma'e a return of service. >n case the writ cannot beserve personally on the responent/ the rules on substitute service shall apply.

SEC. . Return- Contents" Iithin seventy(two *62+ hours after service of the writ/the responent shall Cle a veriCe written return together with supporting aSavitswhich shall/ among other things/ contain the following

1. The lawful efenses to show that the responent i not violate or threaten withviolation the right to life/ liberty an security of the aggrieve party/ through anyact or omission

2. The steps or actions ta'en by the responent to etermine the fate orwhereabouts of the aggrieve party an the person or persons responsible for thethreat/ act or omission

3. $ll relevant information in the possession of the responent pertaining to thethreat/ act or omission against the aggrieve party an

f the responent is a public oScial or employee/ the return shall further state theactions that have been or will still be ta'en

i. to verify the ientity of the aggrieve party


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ii. to recover an preserve evience relate to the eath orisappearance of the person ientiCe in the petition which may ai inthe prosecution of the person or persons responsible

iii. to ientify witnesses an obtain statements from them concerning theeath or isappearance

iv. to etermine the cause/ manner/ location an time of eath or

isappearance as well as any pattern or practice that may havebrought about the eath or isappearance

v. to ientify an apprehen the person or persons involve in the eathor isappearance an

vi. to bring the suspecte o"eners before a competent court.

The return shall also state other matters relevant to the investigation/ its resolutionan the prosecution of the case.

$ general enial of the allegations in the petition shall not be allowe.

SEC. 9. efenses not !leaded eemed #aived" $ll efenses shall be raise in

the return/ otherwise/ they shall be eeme waive.

SEC. 99. !ro$ibited !leadings and %otions" The following pleaings anmotions are prohibite

1. ,otion to ismiss2. ,otion for extension of time to Cle return/ opposition/ aSavit/ position paperan other pleaings3. Dilatory motion for postponementntervention18. ,emoranum11. ,otion for reconsieration of interlocutory orers or interim relief orers an12. Petition for certiorari/ manamus or prohibition against any interlocutory orer.

SEC. 9:. E.ect of 'ailure to 'ile Return" >n case the responent fails to Cle areturn/ the court/ -ustice or -uge shall procee to hear the petition ex parte.

SEC. 9


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*a+ Temporary Protection Orer. The court/ -ustice or -uge/ upon motion or motuproprio/ may orer that the petitioner or the aggrieve party an any member ofthe immeiate family be protecte in a government agency or by an accreiteperson or private institution capable of 'eeping an securing their safety. >f thepetitioner is an organi?ation/ association or institution referre to in !ection 3*c+ of

this &ule/ the protection may be extene to the oScers involve.

The !upreme )ourt shall accreit the persons an private institutions that shallexten temporary protection to the petitioner or the aggrieve party an anymember of the immeiate family/ in accorance with guielines which it shall issue.

The accreite persons an private institutions shall comply with the rules anconitions that may be impose by the court/ -ustice or -uge.

*b+ >nspection Orer. The court/ -ustice or -uge/ upon veriCe motion an after uehearing/ may orer any person in possession or control of a esignate lan orother property/ to permit entry for the purpose of inspecting/ measuring/ surveying/

or photographing the property or any relevant ob-ect or operation thereon.

The motion shall state in etail the place or places to be inspecte. >t shall besupporte by aSavits or testimonies of witnesses having personal 'nowlege ofthe enforce isappearance or whereabouts of the aggrieve party.

>f the motion is oppose on the groun of national security or of the privilegenature of the information/ the court/ -ustice or -uge may conuct a hearing inchambers to etermine the merit of the opposition.

The movant must show that the inspection orer is necessary to establish the rightof the aggrieve party allege to be threatene or violate.

The inspection orer shall specify the person or persons authori?e to ma'e theinspection an the ate/ time/ place an manner of ma'ing the inspection an mayprescribe other conitions to protect the constitutional rights of all parties. Theorer shall expire Cve *=+ ays after the ate of its issuance/ unless extene for

-ustiCable reasons.

*c+ Prouction Orer. The court/ -ustice or -uge/ upon veriCe motion an after uehearing/ may orer any person in possession/ custoy or control of any esignateocuments/ papers/ boo's/ accounts/ letters/ photographs/ ob-ects or tangiblethings/ or ob-ects in igiti?e or electronic form/ which constitute or containevience relevant to the petition or the return/ to prouce an permit theirinspection/ copying or photographing by or on behalf of the movant.

The motion may be oppose on the groun of national security or of the privilegenature of the information/ in which case the court/ -ustice or -uge may conuct ahearing in chambers to etermine the merit of the opposition.

The court/ -ustice or -uge shall prescribe other conitions to protect theconstitutional rights of all the parties.


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*+ Iitness Protection Orer. The court/ -ustice or -uge/ upon motion or motuproprio/ may refer the witnesses to the Department of Hustice for amission to theIitness Protection/ !ecurity an eneCt Program/ pursuant to &epublic $ct 9o.7N1.

The court/ -ustice or -uge may also refer the witnesses to other governmentagencies/ or to accreite persons or private institutions capable of 'eeping ansecuring their safety.

SEC. 9?. /vailabilit& of *nterim Reliefs to Respondent" 4pon veriCe motion of the responent an after ue hearing/ the court/ -ustice or -uge may issue aninspection orer or prouction orer uner paragraphs *b+ an *c+ of the preceingsection.

$ motion for inspection orer uner this section shall be supporte by aSavits ortestimonies of witnesses having personal 'nowlege of the efenses of theresponent.

SEC. 9. Contempt" The court/ -ustice or -uge may orer the responent whorefuses to ma'e a return/ or who ma'es a false return/ or any person who otherwiseisobeys or resists a lawful process or orer of the court to be punishe forcontempt. The contemnor may be imprisone or impose a Cne.

SEC. 9G. 0urden of !roof and Standard of iligence Re1uired" The partiesshall establish their claims by substantial evience.

The responent who is a private iniviual or entity must prove that orinaryiligence as re#uire by applicable laws/ rules an regulations was observe in theperformance of uty.

The responent who is a public oScial or employee must prove that extraorinaryiligence as re#uire by applicable laws/ rules an regulations wasobserve in theperformance of uty.

The responent public oScial or employee cannot invo'e the presumption thatoScial uty has been regularly performe to evae responsibility or liability.

SEC. 9. 2udgment" The court shall rener -ugment within ten *18+ ays from thetime the petition is submitte for ecision. >f the allegations in the petition areproven by substantial evience/ the court shall grant the privilege of the writ ansuch reliefs as may be proper an appropriate otherwise/ the privilege shall beenie.

SEC. 9. /ppeal" $ny party may appeal from the Cnal -ugment or orer to the!upreme )ourt uner &ule


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The appeal shall be given the same priority as in habeas corpus cases.

SEC. :. /rc$iving and Revival of Cases" The court shall not ismiss thepetition/ but shall archive it/ if upon its etermination it cannot procee for a valicause such as the failure of petitioner or witnesses to appear ue to threats on their

lives.

$ perioic review of the archive cases shall be mae by the amparo court thatshall/ motu proprio or upon motion by any party/ orer their revival when reay forfurther proceeings. The petition shall be ismisse with pre-uice upon failure toprosecute the case after the lapse of two *2+ years from notice to the petitioner ofthe orer archiving the case.

The cler's of court shall submit to the OSce of the )ourt $ministrator aconsoliate list of archive cases uner this &ule not later than the Crst wee' of

Hanuary of every year.

SEC. :9. *nstitution of Separate /ctions" This &ule shall not preclue the Clingof separate criminal/ civil or aministrative actions.

SEC. ::. E.ect of 'iling of a Criminal /ction" Ihen a criminal action has beencommence/ no separate petition for the writ shall be Cle. The reliefs uner thewrit shall be available by motion in the criminal case.

The proceure uner this &ule shall govern the isposition of the reliefs availableuner the writ of amparo.

SEC. :


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I. SPEED7 DISPOSATION OF CASESSectin 9, Art. III. All *ersns s+all +ae t+e ri3+t t a s*ee! !is*sitin

) t+eir cases 5e)re all 6'!icial, 8'asi16'!icial, r a!ministratie 5!ies.

S*ee! Trial s. S*ee! Dis*sitin ) CasesS*ee! trial S*ee! !is*sitin ) cases&efers to trial phase only &efers to isposition of cases *$ll

phases+)riminal cases only Huicial/ #uasi(-uicial or amin.

Proceeings

· Peri!s )r !ecisin )r c'rts *!ec. 1=/ $rt. Q>>>+· !) 2< months from submission· $ll lower collegiate courts 12 months unless reuce by !)· $ll other lower courts 3 months

Peri!s )r !ecisin )r Cnstit'tinal Cmmissins *!ec 6/ $rt. >R($+• 78 ays from ate of submission for ecision or resolution

Factrs cnsi!ere! in !eterminin3 $+et+er t+e ri3+t is ilate!1. ength of elay2. &eason of elay3. $ssertion of the right or failure to assert it


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any investigation conucte is immune from criminal prosecution for an o"ense towhich such compelle testimony relates.

Use an! Fr'it Imm'nit Stat'te 0 prohibits the use of the witness5 compelletestimony an its fruit in any manner in connection with the criminal prosecution foran o"ense to which such compelle testimony relates.

Ma 5e Claime! 5"

1. Acc'se! 0 at all times there is a reasonable assumption that the purpose of hisinterrogation will be to incriminate him

2. Witness 0 only en an incriminating &uestion is as0ed/ since the witness has noway of 'nowing in avance the nature or e"ect of the #uestion to be put to him

( Fe cannot invo'e right to self(incrimination whena+ The #uestion is relevant an otherwise alloed even if the answer mayten to incriminate him or sub-ect him to civil liability

b+ the #uestion relates to past criminality for which the witness can no longerbe prosecute

c+ he has been previously grante immunity uner a valily enacte statute

· Only natural persons can invo'e this right. Huicial persons are sub-ect to thevisitorial powers of the state in orer to etermine compliance with the conitions of the charter grante to them.

Sc*e"

*1+ Testimonial )ompulsion

· >n Qillaor v. !ummers/ since the @'ernel of the privilegeA was the prohibition of@testimonial compulsionA/ the )ourt was willing to compel a pregnant womanaccuse of aultery to submit to the inignity of being teste for pregnancy. eingpurely a mechanical act/ it is not a violation of her constitutional right against self(incrimination.

*2+ Prouction of Documents/ Papers an )hattels. Exception when boo's ofaccounts are to be examine in the exercise of police power an power of taxation.

· Ihat is prohibite is the use of physical or moral compulsion to extortcommunication from the witness or to otherwise elicit evience which woul notexist were it not for the actions compelle from the witness.

· The right oes not prohibit the examination of the boy of the accuse or the useof Cnings with respect to his boy as physical evience. Fence/ the Cngerprintingof an accuse woul not violate the right against self(incrimination. Fowever/obtaining a sample of the hanwriting of the accuse woul violate this right if he ischarge for falsiCcation.


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· The accuse cannot be compelle to prouce a private ocument in his possessionwhich might ten to incriminate him. Fowever/ a thir person in custoy of theocument may be compelle to prouce it.

Ri3+t Ma 5e Waie!"( Eithera+ Directly/ orb+ y failure to invo0e it P&OQ>DED the waiver is certain and une&uivocal andintelligently and illingly made.

Sectin 9 94, Art. III. N *ersn s+all 5e !etaine! slel 5 reasn ) +is

*litical 5elie)s an! as*iratins.

&. RI;HT A;AINST IN2OLUNTAR7 SER2ITUDESectin 9 :4, Art. III. N inl'ntar serit'!e in an )rm s+all e%ist

e%ce*t as a *'nis+ment )r a crime $+ere) t+e *art s+all +ae 5een !'l

cnicte!.

Inl'ntar Serit'!e 0 the conition of one who is compelle by force/ coercion/or imprisonment/ an against his will/ to labor for another/ whether he is pai or not.

Inl'ntar Serit'!e Incl'!es

*1+ Slaer 0civil relation in which one man has asolute poer over the life/fortune an liberty of another

*2+ Pena3e 0 a conition of enforce servitue by which the servitor is restraineof his liberty an compelle to labor in li&uidation of some det or oligation/ real orpretene/ against his will

;eneral R'le9o involuntary service in any form shall exist.

E%ce*tins

1. P'nis+ment )r a crime for which the party shall have been uly convicte*!ec. 1/ $rt. >>>+

2. Persnal militar r ciil serice in the interest of national efense*!ec. >+

3. Naal enlistment 0 remain in service until the en of voyage so that the crewwoul not esert the ship/ ma'ing it iScult for the owners to recruit new hans tocontinue the voyage *&obertson vs alwin+


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Stan!ar!s Use!

*1+ The punishment must not be so severe as to be egraing to the ignity ofhuman beings.*2+ >t must not be applie arbitrarily.

*3+ >t must not be unacceptable to contemporary society*t must not be excessive/ i.e. it must serve a penal purpose more e"ectively thana less severe punishment woul.

E%cessie Fine

· $ Cne is excessive/ when uner any circumstance/ it is isproportionate to theo"ense.

9ote Xr. ernas says that the accuse cannot be convicte of the crime to whichthe punishment is attache if the court Cns that the punishment is cruel/egraing or inhuman.

&eason Iithout a vali penalty/ the law is not a penal law.

L. NON IMPRISONMENT FOR DE0TSectin :, Art. III. N *ersn s+all 5e im*risne! )r !e5t r nn1*ament

) a *ll ta%.

Xor +'manitarian reasonsZ an ae guaranty of the liberty of persons againsttheir incarceration for the enforcement of purely private ebts because of theirmisfortune of being poor

De5t any civil obligation arising from a contract/ expresse or implie/ resulting inany liability to pay in money.

Sc*e ) 3'arant a3ainst im*risnment )r nn1*ament ) !e5t

· >f an accuse fails to pay the Cne impose upon him/ this may result in hissubsiiary imprisonment because his liability is e4 delicto an not e4 contractu.

A FRAUDULENT !e5t ma res'lt in t+e im*risnment ) t+e !e5tr i)"

1. The frauulent ebt constitutes a crime such as estafa an2. The accuse has been uly convicte.

POLL TAB

eneral &ule 9on(payment of taxes is punishable with imprisonment.Exception Xailure to pay a poll tax

Pll ta% a speciCc sum levie upon every person belonging to a certain classwithout regar to his property or occupation.


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· $ tax is not a ebt since it is an obligation arising from law. Fence/ its non(payment maybe valily punishe with imprisonment.

M. DOU0LE &EOPARD7 Sectin :9, Art. III. N *ersn s+all 5e t$ice *'t in 6e*ar! ) *'nis+ment

)r t+e same #ense. I) an act is *'nis+e! 5 a la$ an! an r!inance,

cnictin r ac8'ittal 'n!er eit+er s+all cnstit'te a 5ar t ant+er

*rsec'tin )r t+e same act.

D'5le 6e*ar! 0 when a person was charge with an o"ense an the case wasterminate by ac#uittal or conviction or in any other manner without his consent/ hecannot again be charge with the same or ientical o"ense.

Re8'isites ) D'5le &e*ar!

1. vali complaint or information2. Cle before a competent court

3. to which efenant has pleae/ an


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W+en !es 6e*ar! NOT attac+"

*a+ >f information oes not charge any o"ense

*b+ >f/ upon pleaing guilty/ the accuse presents evience of complete selfefense/

an the court thereafter ac#uits him without entering a new plea of not guilty foraccuse.

*c+ >f the information for an o"ense cogni?able by the &T) is Cle with the ,T).

*+ >f a complaint Cle for preliminary investigation is ismisse.

W+en !es (rst 6e*ar! TERMINATE" :ND REUISITE4

1+ $c#uittal2+ )onviction3+ Dismissal I%O the ERP&E!! consent of the accuse

f ismissal is on motion of the accuse. Exception >f motion is base onviolation of the right to a speey trial or on a emurrer to evience.

*b+ >f ismissal oes 9OT amount to an ac#uittal or ismissal on the merits

*c+ >f the #uestion to be passe upon is purely legal.

*+ >f the ismissal violates the right of ue process of the prosecution.

*e+ >f the ismissal was mae with grave abuse of iscretion.

W+at are cnsi!ere! t 5e t+e SAME OFFENSEJ"

*a+ Exact ientity between the o"enses charge in the Crst an secon cases.


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*b+ One o"ense is an attempt to commit or a frustration of the other o"ense.

*c+ One o"ense is necessarily inclue or necessary inclues the other.

· /ote2 where a single act results in the violation of i"erent laws or i"erent

provisions of the same law/ the prosecution for one will not bar the other so long asnone of the exceptions apply.

Same Act

· Double -eopary will result if the act punishable uner the law an the orinanceare the same. Xor there to be ouble -eopary/ it is not necessary that the o"ensebe the same.

S'*erenin3 Facts

1+ 4ner the &ules of )ourt/ a conviction for an o"ense will not bar a prosecution for

an o"ense which necessarily inclues the o"ense charge in the former informationwhere

*a+ The graver o"ense evelope ue to a supervening fact arising from the sameact or omission constituting the former charge.

*b+ The facts constituting the graver o"ense became 'nown or were iscovere onlyafter the Cling of the former information.

*c+ The plea of guilty to the lesser o"ense was mae without the consent of theCscal an the o"ene party.

2+ 4ner *1+*b+/ if the facts coul have been iscovere by the prosecution but werenot iscovere because of the prosecutionVs incompetence/ it woul not beconsiere a supervening event.

E#ect ) a**eal 5 t+e acc'se!

· >f the accuse appeals his conviction/ he I$>QE! his right to plea ouble -eopary. The whole case will be open to review by the appellate court. !uch courtmay even increase the penalties impose on the accuse by the trial court.

· >n $lmario v. )$/ the )ourt hel that the elays were not unreasonable hence/there was no enial of the right to speey trial. !econ/ the ismissal was with theconsent of the accuse. Fence/ reinstatement i not violate the right againstouble -eopary.

N. EB POST FACTO LAWS AND 0ILL OF ATTAINDERSectin ::, Art. III. N e% *st )act la$ r 5ill ) attain!er s+all 5e

enacte!.

in!s ) E% Pst Fact La$s


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*1+ One which ma'es an action one before the passing of the law/ an which wasinnocent when one/ criminal/ an punishes such action.

*2+ One which aggravates the crime or ma'es it greater than when it wascommitte.

*3+ One which changes the punishment an inicts a greater punishment than thatwhich the law annexe to the crime when it was committe.

*n Lacsn . E%ec. Sec./ the )ourt hel that in general/ ex post facto law prohibitsretrospectivity of penal laws. &$ 9o. 2n 0at . San!i3an5aan/ the accuse was convicte by the !aniganbayanfor estafa on ,ay 38/ 1N8. $ccuse appeale. On ,arch 17/ 1N2/ P lg. 1N= waspasse authori?ing suspension of publicoScers against whom an information may be pening at any stage. On Huly 22/1N2/ the court suspene the accuse. The !upreme )ourt rule that $rt. 2< of the&evise Penal )oe that suspension of an oScer uring trial shall not be consierea penalty. The suspension in the case is merely a preventive an not a penalmeasure which therefore oes not come uner the ex post facto prohibition.

0ILL OF ATTAINDER


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ill of attainer 0 is a legislative act which inicts punishment without -uicial trial. >f the punishment be less than eath/ the act is terme a bill of pains an penalties.AC'mmin3s . Miss'ri4

*$ll ills of $ttainer are Ex Post Xacto aws+

Elements ) 0ill ) Attain!er1. There must be a law.2. The law imposes a penal buren on a name iniviual or easily ascertainablemembers of a group.3. There is a irect imposition of penal buren without -uicial trial.

O. PRI2AC7 OF COMMUNICATIONSectin


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@>n no uncertain terms/ we also unerscores that the right to privacy oes not barall incursions into iniviual privacy. The right is not intene to stie scientiCc antechnological avancements that enhance public service an the common goo. >tmerely re#uires that the law be narrowly focuse.A >ntrusions into the right must beaccompanie by proper safeguars an well(eCne stanars to preventunconstitutional invasions.

· >n Re . Wa!e/ the )ourt hel that abortions are permissible for any reason awoman chooses/ up until the Wpoint at which the fetus becomes Uviable/V that is/potentially able to live outsie the mother5s womb.

*a+ The )onstitution oes not explicitly mention any right to privacy but the )ourthas recogni?e that such right oes exist in the )onstitution. The )ourt eemeabortion a funamental right uner the 4nite !tates )onstitution/ therebysub-ecting all laws attempting to restrict it to the stanar of strict scrutiny. Iherecertain @funamental rightsA are involve/ the )ourt has hel that regulationlimiting these rights may be -ustiCe only by a @compelling state interest.A

*b+ The right to privacy is broa enough to encompass a womanVs ecision whetheror not to terminate her pregnancy. ut a womanVs right to terminate her pregnancyat whatever time/ in whatever way an for whatever reason she alone chooses is9OT absolute. Ihile recogni?ing the right to privacy/ the )ourt also ac'nowlegesthat some state regulation in areas protecte by a right is appropriate. $ state mayproperly assert important interests in safeguaring health/ in maintaining meicalstanars/ an in protecting potential life.

. WRIT OF HA0EAS DATA

Writ ) +a5eas !ata 0 is a remey available to any person whose right to privacyin life/ liberty or security is violate or threatene by an unlawful act or omission ofa public oScial or employee/ or of a private iniviual or entity engage in thegathering/ collecting or storing of ata or information regaring the person/ family/home an corresponence of the aggrieve party.

· >t is governe by The &ule on the Irit of Fabeas Data *$.,. 9o. 8(1(17( !) 0 fulltext+/ which was approve by the !upreme )ourt on 22 Hanuary 288. That &uleshall not iminish/ increase or moify substantive rights.Cnstit'tinal 0asisSectin ??4, Art. 2III. Prm'l3ate r'les cncernin3 t+e *rtectin an!

en)rcement ) cnstit'tinal ri3+ts, *lea!in3, *ractice, an! *rce!'re in

all c'rts, t+e a!missin t t+e *ractice ) la$, t+e inte3rate! 5ar, an!

le3al assistance t t+e 'n!er1*riile3e!. S'c+ r'les s+all *ri!e asim*li(e! an! ine%*ensie *rce!'re )r t+e s*ee! !is*sitin ) cases,

s+all 5e 'ni)rm )r all c'rts ) t+e same 3ra!e, an! s+all nt !iminis+,

increase, r m!i) s'5stantie ri3+ts. R'les ) *rce!'re ) s*ecial

c'rts an! 8'asi16'!icial 5!ies s+all remain e#ectie 'nless !isa**re!

5 t+e S'*reme C'rt.


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· The &ule ta'es e"ect on 2 Xebruary 288/ following its publication in three *3+newspapers of general circulation.

W+ ma (le a *etitin )r t+e iss'ance ) a $rit ) +a5eas !ata-

· ;eneral r'le" The aggrieve party.

· E%ce*tins" >n cases of extralegal 'illings an enforce isappearances/ thepetition may be Cle by

*1+ $ny member of the immeiate family of the aggrieve party/ namely thespouse/ chilren an parents or

*2+ $ny ascenant/ escenant or collateral relative of the aggrieve party withinthe fourth civil egree of consanguinity or aSnity/ in efault of those mentione inthe preceing paragraph.

W+ere can t+e *etitin 5e (le!-

*1+ &egional Trial )ourt where the petitioner or responent resies/ or that whichhas -urisiction over the place where the ata or information is gathere/ collecteor store/ at the option of the petitioner.

*2+ !upreme )ourt

*3+ )ourt of $ppeals or

*


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of threats/ the relief may inclue a prayer for an orer en-oining the act complaineof an

*f+ !uch other relevant reliefs as are -ust an e#uitable.

W+en is t+e $rit ) +a5eas !ata iss'e!-

4pon the Cling of the petition/ the court/ -ustice or -uge shall immeiately orer theissuance of the writ if on its face it ought to issue. The cler' of court shall issue thewrit uner the seal of the court an cause it to be serve within three *3+ ays fromits issuance or/ in case of urgent necessity/ the -ustice or -uge may issue the writuner his or her own han/ an may eputi?e any oScer or person to serve it. Thewrit shall also set the ate an time for summary hearing of the petition which shallnot be later than ten *18+ wor' ays from the ate of its issuance.

· $ cler' of court who refuses to issue the writ after its allowance/ or a eputi?eperson who refuses to serve the same/ shall be punishe by the court/ -ustice or

-uge for contempt without pre-uice to other isciplinary actions.

· The writ shall be serve upon the responent by the oScer or person eputi?e bythe court/ -ustice or -uge who shall retain a copy on which to ma'e a return ofservice. >n case the writ cannot be serve personally on the responent/ the ruleson substitute service shall apply.

· The responent shall Cle a veriCe written return together with supportingaSavits within Cve *=+ wor' ays from service of the writ/ which perio may bereasonably extene by the )ourt for -ustiCable reasons.

Cntents ) Ret'rn

*a+ The lawful efenses such as national security/ state secrets/ privilegecommunication/ conCentiality of the source of information of meia an others

*b+ >n case of responent in charge/ in possession or in control of the ata orinformation sub-ect of the petition

*i+ a isclosure of the ata or information about the petitioner/ the nature of suchata or information/ an the purpose for its collection

*ii+ the steps or actions ta'en by the responent to ensure the security anconCentiality of the ata or information an

*iii+ the currency an accuracy of the ata or information hel an

*c+ Other allegations relevant to the resolution of the proceeing.

· Ihen the responent fails to Cle a return/ the court/ -ustice or -uge shall proceeto hear the petition ex parte/ granting the petitioner such relief as the petition maywarrant unless the court in its iscretion re#uires the petitioner to submit evience.


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· >nstea of having the hearing in open court/ it can be one in chambers when theresponent invo'es the efense that the release of the ata or information in#uestion shall compromise national security or state secrets/ or when the ata orinformation cannot be ivulge to the public ue to its nature or privilegecharacter.

· The hearing on the petition shall be summary. Fowever/ the court/ -ustice or -ugemay call for a preliminary conference to simplify the issues an etermine thepossibility of obtaining stipulations an amissions from the parties.

· 4pon its Cnality/ the -ugment shall be enforce by the sheri" or any lawful oSceras may be esignate by the court/ -ustice or -uge within Cve *=+ wor' ays.

· Ihen a criminal action has been commence/ no separate petition for the writshall be Cle/ but the reliefs uner the writ shall be available by motion in thecriminal case/ an the proceure uner this &ule shall govern the isposition of thereliefs available uner the writ of habeas ata.

· Ihen a criminal action an a separate civil action are Cle subse#uent to apetition for a writ of habeas ata/ the petition shall be consoliate with thecriminal action. $fter consoliation/ the proceure uner this &ule shall continue togovern the isposition of the reliefs in the petition.

· The introuction of the Irit of Fabeas Data into Philippine Hustice !ystemcomplemente several writs use in the Philippines. These writs which protect therights of the iniviual against the state are as follows

· The Writ ) Ha5eas Cr*'s 0 a writ orering a person who etaineanother to prouce the boy an bring it before a -uge or court. >ts purposeis to etermine whether the etention is lawful or not

· The Writ ) Man!am's 0 a writ orering a governmental agency toperform a ministerial function

· The Writ ) Pr+i5itin 0 a writ orering a person to prohibit thecommission of an illegal act

· The Writ ) Certirari 0 a writ orering a person to correct an erroneousact committe with grave abuse of iscretion an

· The Writ ) Am*ar 0 a writ esigne to protect the most basic right of ahuman being. These are the right to life/ liberty ansecurity guarantee bythe )onstitution.

R. ACCESS TO PU0LIC INFORMATIONSectin G, Art. III. T+e ri3+t ) t+e *e*le t in)rmatin n matters )

*'5lic cncern s+all 5e rec3ni@e!. Access t cial recr!s, an! t

!c'ments an! *a*ers *ertainin3 t cial acts, transactins, r

!ecisins, as $ell as t 3ernment researc+ !ata 'se! as 5asis )r *lic

!eel*ment, s+all 5e a#r!e! t+e citi@en, s'56ect t s'c+ limitatins as


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ma 5e *ri!e! 5 la$.

· the citi?enry has a right to 'now what is going on in the country an in hisgovernment so he can express his views thereon 'nowlegeably an intelligently.

Ri3+ts ;'arantee!

1. &ight to information on matters of public concern an

2. )orollary right of access to oScial recors an ocuments.

· These are political rights that are available to citi?ens only *ernas/ Philippine)onstitution/ p. =+.

Limitatins" @$s may be provie by lawA

Qalmonte v elmonte 1NN The people have a right to access oScial

recors but they canVt compel

custoians of oScial recors to prepare

lists/ abstracts/ summaries an the li'e/

such not being base on a emanable

legal right.

Then right to privacy belongs to the

iniviual an must be invo'e by the

iniviual. $ public agency li'e the !>!

cannot invo'e the right to privacy.alo?a v Dimaano 1N67 Huges cannot prohibit access to -uicial

recors. Fowever/ a -uge may regulatethe manner in which persons esiring to

inspect/ examine or copy recors in his

oSce/ may exercise their rights.egaspi v )ivil !ervice )ommission

1N6

Personal interest is not re#uire in

asserting the right to information on

matters of public concern. Ihat matters

constitute @public concernA shoul be

etermine by the court on a case to

case basis.)have? v P) 1NN Public concern *ef.+ 0 writings coming

into the hans of public oScers in

connection with their oScial functions >ll(

gotten wealth is/ by its nature/ a matter

of public concern. Privilege

communication *1+ national security/ *2+

trae

secrets/ *3+ criminal matters pening in


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court/

Echegaray case !) hel that ma'ing the ethal >n-ection

,anual inaccessible to the convict was

unconstitutional.

S. FREEDOM OF EBPRESSION

Free!m ) S*eec+ @at once the instrument an the guaranty an the brightconsummate ower of all liberty.A *Ienell Philips+

Sc*e

· Xreeom of Expression is available only insofar as it is exercise for the iscussion

of matters a3ecting te pulic interest . Purely private interest matters o not comewithin the guaranty *invasion of privacy is not sanctione by the )onstitution+.

· covers ieas that are acceptale to the ma-ority and the unortodo4 view. *One ofthe functions of this freeom is @to invite isputeA 0 4! !upreme )ourt @> may notagree with what you say/ but > will efen to the eath your right to say it.A (Qoltaire+

· The freeom to spea' inclues the right to silent. *This freeom was meant notonly to protect the minority who want to tal' but also to beneCt the ma-ority whorefuse to listen. ( !ocrates+

Im*rtance

The ultimate goo esire is better reache by a free trae in ieas 0 that the besttest of truth is the power of the thought to get itself accepte in the competition ofthe mar'et an that truth is the only groun upon which their wishes safely can becarrie out.

M!es ) E%*ressin

*a+ Oral an written language*b+ !ymbolisms *e.g. bene 'nee/ salute to the ag/ cartoons+

Elements ) Free!m ) E%*ressin

*1+ Xreeom from prior restraint or censorship*2+ Xreeom from subse#uent punishment

Free!m Frm Prei's Restraint r Censrs+i*

Sectin >, Art. III. N la$ s+all 5e *asse! a5ri!3in3 t+e )ree!m ) s*eec+,


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) e%*ressin, r ) t+e *ress, r t+e ri3+t ) t+e *e*le *eacea5l t

assem5le an! *etitin t+e 3ernment )r re!ress ) 3rieances.

Censrs+i* 0 conitions the exercise of freeom of expression upon the priorapproval of the government. Only those ieas acceptable to it are allowe to beisseminate.

· )ensor/ therefore/ assumes the role of arbiter for the people/ usually applying hisown sub-ective stanars in etermining the goo an the not. !uch is anathema ina free society.

· >n Ne$ 7r= Times . Unite! States/ the )ourt hel that prohibition of @priorrestraintA is not absolute/ although any system of prior restraint comes to courtbearing a heavy presumption against its constitutionality.

· >n Near . Minnesta/ the exceptions to the prohibition of @prior restraint isenumerate by the )ourt/ thus @Ihen a nation is at war/ many things that mightbe sai in time of peace are such a hinrance to its e"ort .... 9o one woul #uestionbut that government might prevent actual obstruction to its recruiting service or thepublication of sailing ates of transports or the number or location of troops.... Thesecurity of the community life may be protecte against incitements to acts ofviolence an the overthrow by force of orerly government.A

· >n SWS . Cmelec/ !ec. 1 of &$ 9o. N887/ the Xair Election $ct says that surveysa"ecting national caniates shall not be publishe Cfteen*1=+ ays before anelection an surveys a"ecting local caniates shall not be publishe seven aysbefore an election. The provision is challenge as violative of freeom of expression.

The )ourt hel that as prior restraint/ the rule is presume to be invali. The powerof the )omelec over meia franchises is limite to ensuring @e#ual opportunity/

time/ space an the right to replyA as well as to reasonable rates of charges for theuse of meia facilities for @public information an forums among caniates.A Ferethe prohibition of speech is irect/ absolute an substantial. 9or oes the rule passthe O5rien test for content relate regulation because *1+ it suppresses one type ofexpression while allowing other types such as eitorials/ etc. an *2+ the restrictionis greater than what is neee to protect government interest because the interestcan be protecte by narrower restriction such as subse#uent punishment.

· >n Re" Re8'est )r Ra!i1T2 Cera3e ) t+e Estra!a Trial/ the )ourt helthat the propriety of the Estraa trial involves the weighing out of the constitutionalguarantees of freeom of the press an the right to public information/ on the onehan/ an the funamental rights of the accuse/ on the other han/ along with the

constitutional power of a court to control its proceeings in ensuring a fair animpartial trial... Iith the possibility of losing not only the precious liberty but alsothe very life of an accuse/ it behooves all to ma'e absolutely certain that anaccuse receives a verict solely on the basis of a -ust an ispassionate

-ugment...A

· The octrine of freeom of speech was formulate primarily for the protection of@core speech/A i.e./ speech which communicates political/ social or religious ieas.)ommercial speech/ however/ oes not.


54/103

ros-ean vs $merican Press )o. There nee not be total suppression

even restriction of circulation constitutes

censorshipurgos vs )hief of !ta" the search/ paloc'ing an sealing of the

oSces of ,etropolitan ,ail an IeXorum by military authorities/ resulting

in the iscontinuance of publication of

the newspapers/ was hel to be prior

restraint,utuc vs )O,EE) the )O,EE) prohibition against the use

of tape -ingles in the mobile units use

in the campaign was hel to be

unconstitutional/ as it was in the nature

of censorship!ania vs )O,EE) the )ourt annulle the )O,EE)

prohibition against raio commentatorsor newspaper columnists from

commenting on the issues invo