Lecture Notes on the Bill of Rights PDF

Bill of Rights – It is a set of prescriptions setting forth the fundamental civil and political rights of the individual, and imposing limitations on the powers of the government as a means of securing the enjoyment of those rights. (PBM Employees Org vs PBM, 51 SCRA 189) Kinds Classification of Ri...

Bill of Rights – It is a set of prescriptions setting forth the fundamental civil and political rights of the individual, and imposing limitations on the powers of the government as a means of securing the enjoyment of those rights. (PBM Employees Org vs PBM, 51 SCRA 189) Kinds Classification of Rights: 1. Political rights – granted by law to members of community in relation to their direct or indirect participation in the establishment or administration of the government; 2. Civil rights – rights which municipal law will enforce at the instance of private individuals for the purpose of securing them the enjoyment of their means of happiness. p 91 Nachura The Bill of Rights governs the relationship between the individual and the State. Its concern is not the relation of individuals, between a private individual and other individuals. What the Bill of Rights does is to declare some forbidden zones in the private sphere inaccessible to any power holder (People vs Marti GR 81561) It is generally self- executing. (p. 91 Nachura) DUE PROCESS Due Process simply states that it is part of the sporting idea of fair play to hear the other side before an opinion is formed or a decision is made by those who sit in judgment. (Ynot vs. IAC, 148 SCRA 659) A law which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial (Dartmouth College v. Woodward, 4 Wheaton 518). a) Relativity of DP - In the book of Bernas at page 32, it was asked: “Is the requirement of substantive DP a rigid concept?” Bernas answered that: the heart of substantive DP is the requirement of reasonableness or absence of exercise of arbitrary power. These are NECESSARILY RELATIVE CONCEPTS which depend on the circumstances of every case.  The phrase due process itself is a term that defies exact definition or meaning, the same being left to be developed and applied as cases and situations come along. Appltying the Due Process Clause necessarily involves valud judgments,as there constantly comes into play the imperative to make adjustments and accommodations to the various needs and demands of society. Once it is determined that DP applies, the question remains what process is due. DP is flexible, and calls for such procedural protections as the particular situation demands. Consideration of what procedures DP may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved, as well as of the private interest that has been affected by a governmental action. In the case of Sec of Justice vs Lantion 343 SCRA 377, Justice Puno said that procedural DP required by a given set of circumstances must begin with the determination of the precise nature of the government function involved as well as the private interests that has been affected by the governmental action. The concept of DP is flexible for not all situations calling for procedural safeguards call for the same kind of procedure. (Gorospe p. 80 – 82) b) Procedural and Substantive DP Substantive due process – Asks whether the government has an adequate reason for taking away a person’s life, liberty or property. In other words, substantive DP looks to whether there is a sufficient justification for the government’s action. Whether there is such a justification depends very much on the level of the scrutiny used. -If a law is in an area where only the rational basis test is applied – substantive DP is met so long as the law is rationally related to a legitimate governmental purpose. -If such is an area where strict scrutiny is used, then the government will meet substantive DP only if it can prove that the law is necessary to achieve compelling government purpose. (City of Manila vs Laguio GR 118127; p. 75 Duka) Substantive DP serves as a restriction on the government’s law and rule-making powers. The following are the requisites: 1. the interests of the public in general, as distinguished from those of a particular class, require the intervention of the State; (Lawful Subject)  2. the means employed are reasonably necessary for the accomplishment of the purpose and not unduly oppressive on individuals. (Lawful Means) (p. 93 Nachura). Publication of laws is part of substantive DP. Without such notice and publication, there would be no basis for the application of the maxim ignorantia legis non excusat. It would be the height of injustice to punish or otherwise burden a citizen for the transgression of a law of w/c he had no notice whatsoever, not even a constructive one. It is needless to say that the publication of presidential issuances "of a public nature" or "of general applicability" is a requirement of due process. It is a rule of law that before a person may be bound by law, he must first be officially and specifically informed of its contents. (Tañada vs Tuvera 136 SCRA 27) Take Note: Presumption when the State acts to interfere with life, liberty, or property – Valid Procedural DP – refers to the procedures that the government must follow before it deprives a person of life, liberty, or property. Essence of procedural DP – embodied in the basic requirement of notice and real opportunity to be heard. (Casimiro vs Tandog GR 146137) Procedural due process – this serves as a restriction on actions of judicial and quasi-judicial agencies of the government. Requisites of Civil DP: 1. an impartial court or tribunal clothed with judicial power to hear and determine the matters before it; 2. jurisdiction properly acquired over the person of the defendant and over property which is the subject matter of the proceeding; 3. opportunity to be heard; 4. judgment rendered upon lawful hearing and based on evidence adduced (Banco Español Filipino v. Palanca, G.R. No. L-11390, March 26, 1918). Requisites of Criminal DP 1. Accused is heard by a court of competent jurisdiction; 2. Accused is proceeded against under the orderly process of law; 3. Accused is given notice and opportunity to be heard; 4. Judgment rendered is within the authority of the constitutional law (People vs Vera) Requisites of Administrative DP 1. Right to hearing – includes right to present one’s case and submit evidence to support thereof; 2. Tribunal or body or any of its judges must act on its own independent consideration of the law and facts of the controversy; 3. Tribunal must consider the evidence presented; 4. Evidence must be substantial, which means relevant evidence as a reasonable might accept as adequate to support a conclusion; 5. Decision must have something to support itself; 6. Decision must be based on evidence presented during hearing or at least contained in the record and disclosed by the parties; 7. Decision must be rendered in a manner that the parties can know the various issues involved and the reason for the decision rendered (Ang Tibay vs CIR) Requisites for DP for students before imposition of disciplinary actions 1. must be informed in writing of the nature and cause of the accusation against him; 2. right to answer charges against him, with the assistance of counsel, if desired.;  3. Informed of the evidence against him; 4. Right to adduce evidence in his behalf; 5. Evidence must be duly considered by the investigating committee or official designated by the school to hear and decide the case. (ADMU vs Capulong 222 SCRA 644) Take Note: Appeal is not a natural right nor a part of DP. But where the Constitution gives a person the right to appeal, e.g. cases under the minimum appellate jurisdiction of the SC, denial of right to appeal constitutes violation of DP. Also, if there is a statutory grant provided that the same is made in accordance with the provisions of the law. (Sapad vs CA GR 132153) Take Note: Preliminary investigation is not a constitutional right but merely statutory. But where there is a statutory grant for PI, denial of the same is an infringement of DP. Constitutional and Statutory DP – See Serrano vs NLRC and Agabon vs NLRC 323 SCRA 445 (442 SCRA 573) Constitutional DP – protects the individual from the government and assures him of his rights in criminal, civil, or administrative proceedings. Statutory DP – found in the Labor Code and Implementing Rules protects employees from being unjustly terminated without just cause after notice and hearing. In these cases, the 30-day notice requirement in case of termination for an authorized cause is held to be not a part of DP. First, the DP clause in the Constitution is a limitation on governmental powers. It does not apply to the exercise of a private power, such as the termination of employment. Second, the purpose for requiring such notice is only to give the employee time to prepare for the eventual loss of his job. Third, the employer cannot really be expected to be entirely an impartial judge. It was also held in these cases that not all notice requirements are requirements of DP. It was held that not all notice requirements are requirements of DP. Some are simply part of procedure to be followed before a right granted to a party can be exercised. Others are simply an application of the Justinian precept, embodied in the Civil Code, to act with justice, give everyone xxx. Such is the notice requirement in Arts 282-283. The consequence of the failure either of the employer or the employee to live up to this precept is to make him liable in damages, not to render his act void. Hierarchy of Rights In SJS vs Atienza, 545 SCRA 92, it was held that the right to life enjoys precedence over the right to property. Freedom of expression has gained recognition as a fundamental principle of every democratic government, and given a preferred right that stands on a higher level than substantive economic freedom or other liberties. (Chavez vs Gonzales 545 SCRA 441) In Philippine Blooming Mills Employees Organization vs PBM Co GR L-31195, Justice Makasiar stressed that: In a democracy, the preservation and enhancement of the dignity and worth of the human personality is the central core as well as the cardinal article of faith of our civilization. The happiness of the individual, not the well-being of the State, was the criterion by which its behaviour was to be judged. His interests, not its power, set the limits to the authority it was entitled to exercise. The rights of free expression, free assembly and petition, are not only civil rights but also political rights essential to man’s enjoyment of his life, to his happiness and to his full and complete fulfillment. While the Bill of Rights also protects property rights, the primacy of human rights over property rights is recognized. Property and property rights can be lost thru prescription; but human rights are imprescriptible. In the hierarchy of civil liberties, the rights of free expression and of assembly occupy a preferred position as they are essential to the preservation and vitality of our civil and political institutions; and such priority “gives these liberties the sanctity and the sanction not permitting dubious intrusions”. The superiority of these freedoms over property rights is underscored by the fact that a mere reasonable or rational relation between the means employed by the law and its object or purpose – that the law is neither arbitrary nor discriminatory nor oppressive – would suffice to validate a law which restricts or impairs property rights. On the other hand, a constitutional or valid infringement of human rights requires a more stringent criterion, namely existence of a grave and immediate danger of a substantive evil which the State has the right to prevent. (p. 17-19 Duka). In the case of People vs Tudtud 412 SCRA 142, it was held – The right against unreasonable search and seizure in turn is at the top of the hierarchy of rights, next only to, if not on the same plane as, the right to life, liberty and property, which is protected by the due process clause. Whenever rights founded on life or liberty clash with rights founded on property considerations, the proper allocation of weights would have to be undertaken. (Blo Umpar Adiong vs COMELEC 207 SCRA 712) Judicial Standards of Review These are the following: Mere rationality deferential review standard – 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 (Estrada vs Sandiganbayan 369 SCRA 394). It has been described as adopting a deferential attitude towards legislative classifications. The Rational Basis Test remains the primary standard for evaluating the constitutionality of a statute. (Central Bank Employees Assn vs BSP 446 SCRA 299). Middle-level review or intermediate review or heightened scrutiny standard – Under the intermediate review, the substantiality of the governmental interest is seriously looked into and the availability of less restrictive alternatives are considered. Such classifications must be substantially related to a sufficiently important governmental interest. The US SC has generally applied Intermediate Review when the challenged statute’s classification is based on either gender, illegitimacy and under certain circumstance, legal residency with regard to availment of free public education, civil service employment preference for armed forces veterans who are state residents upon entry to military service, and the right to practice for compensation the profession for which certain persons have been qualified and licensed. (Estrada vs Sandiganbayan) Strict Scrutiny Standard 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 applied when the challenged statute either (1) classifies on the basis of inherently suspect characteristic or (2) infringes fundamental constitutional rights. With respect to such classifications, the usual presumption of constitutionality is reversed, and it is incumbent upon the government to demonstrate that its classification has been narrowly tailored to further compelling governmental interests, otherwise the law shall be declared unconstitutional for being violative of the Equal Protection Clause. In San Antonio Independent School Dist vs Rodriguez 411 US 1, the US SC articulated that suspect classifications were not limited to classifications based on race, alienage, or national origin but could also be applied to other criteria such as religion. Void-for-vagueness doctrine Void-for-vagueness rule – accused is denied the right to be informed of the charge against him, and to due process as well, where the statute itself is couched in such indefinite language that it is not possible for men of ordinary intelligence to determine therefrom what acts or omissions are punished and, hence shall be avoided. It is repugnant to the Constitution in two respects:it violates DP for failure to accord persons, especially the parties targeted by it, fair notice of the conduct to avoid.  It leaves law enforcers unbridled discretion in carrying out its provisions and become an arbitrary flexing of the Government muscle. (People v. Nazario, G.R. No. 44143) An act will be declared void and inoperative on the ground of vagueness and uncertainty only upon a showing that the defect is such that the courts are unable to determine, with any reasonable degree of certainty, what the legislature intended. (p. 76 Duka). Vagueness doctrine merely requires a reasonable degree of certainty for the statute to be upheld – not absolute precision or mathematical exactitude. Flexibility, rather than meticulous specificity is permissible as long as the metes and bounds of the statute are clearly delineated. (Estrada vs Sandiganbayan 369 SCRA 394) 4. EQUAL PROTECTION a) Concept - The equal protection of the law clause is against undue favor and individual or class privilege, as well as hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation, which it is limited either in the object to which it is directed or by territory within which is to operate. It does not demand absolute equality among residents; it merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced. The equal protection clause is not infringed by legislation which applies only to those persons falling within a specified class, if it applies alike to all persons within such class, and reasonable grounds exists for making a distinction between those who fall within such class and those who do not. (Ichong vs Hernandez) But substantive equality is not enough. It is also required that the law be enforced and applied equally. As held by the US Supreme Court, even if the law be fair and impartial on its face, it will still violate equal protection if it is administered “with an evil eye and an uneven hand”, so as to unjustly benefit some and prejudice others. (p. 124 Cruz) The clause also commands the State to pass laws which positively promote equality or reduce existing inequalities. (p. 37 Bernas)  b) Requisites of Valid Classification: 1. Such classification rests upon substantial distinctions; 2. It is not confined to existing conditions only; 3. It applies equally to all members of the same class; 4. It is germane to the purposes of the law. (People v. Cayat), - reasonable relation to the purpose of the law. 5. SEARCHES ANS SEIZURES a) Concept - The right against unreasonable searches and seizures is the immunity of one's person, which includes his residence, his papers, and other possessions. The guarantee refers to "the right of personal security" of the individual. What is sought to be protected against the State's unlawful intrusion are persons, not places. To conclude otherwise would lead to the absurd logic that for a person to be immune against unreasonable searches and seizures, he must be in his home or office, within a fenced yard or a private place. The Bill of Rights belongs as much to the person in the street as to the individual in the sanctuary of his bedroom. (People v. Valdez, 25 September 2000) - Available to all persons, including aliens whether accused of crime or not. - Artificial persons are entitled to the guaranty but they may be required to open their books of accounts for examination by the State in the exercise of the police power or the power of taxation. Their premises may be not be searched nor may their papers and effects be seized except by virtue of a valid warrant. (Qua Chee Gan vs Deportation Board) - The right is personal; it may be invoked only by the person entitled to it Such right may be waived either expressly or impliedly. (Stonehill v. Diokno) Who can invoke – All persons, including aliens, whether accused of a crime or not. Artificial persons are also entitled to the guarantee, though may be required to open their books of accounts for examination by the State in the exercise of PP and taxing powers. (Moncada vs People’s Court 80 Phil 1.)  The right is personal. Hence, waiver, express or implied, must be made by the person entitled to it. (Stonehill vs Diokno 20 SCRA 383). To whom does the right apply The right applies as a restraint directed only against the government and its agencies tasked with the enforcement of the law. (People vs Marti GR 81561). The Bill of Rights does not protect citizens from unreasonable searches and seizure by private individuals. (Waterous Drug Corp vs NLRC.) However, it may be possible to find a remedy in the Civil Code. (p. 38 Bernas) What the constitutional prohibition prohibits are unreasonable searches and seizures. Searches and seizures are normally unreasonable unless authorized by a validly issued search warrant or warrant of arrest. A reasonable search is not to be determined by any fixed formula but is to be resolved according to the facts of the case. There is no presumption of regularity in search cases. (p. 38 Bernas.) Purpose of Sec 2 Article III To protect the privacy and sanctity of the person and of his house and other possessions against arbitrary intrusions by State officers. p. 37 Bernas. What could be referred to by the phrase searches and seizures of whatever nature and for whatever purpose? It extends to 2 penumbral areas. First, subpoena duces tecum. Second, building inspection by administrative officers. (Bernas p. 45) Take Note: Illegality of the arrest – is not jurisdictional; objection thereto is waived where the person submits to arraignment without any objection. (People vs Del Rosario GR 127755) Where to file A. Search Warrant: 1) Where a case is pending – Court wherein the same is filed or the assigned branch thereof has primary jurisdiction to issue the search warrant.  2) No criminal case pending yet – The executive judges, or their lawful substitutes, in the areas and for the offense contemplated in Circular 1-91, shall have primary jurisdiction. (Malalaon vs CA 232 SCRA 249) > This does not mean however, that a Court, whose territorial jurisdiction does not embrace the place to be searched cannot issue a search warrant therefore, where the obtention of such warrant is necessitated and justified by compelling considerations of urgency, subject, time, and place. (Ilano vs CA 244 SCRA 346) Determination thereof rests with the court where application is filed subject to review with the appellate court in case of grave abuse of discretion. (People vs Chui GR 142915-16) Where a search warrant is issued by one court and the criminal action based on the results of the search is commenced in another court, motion to quash the warrant or to retrieve things thereunder seized may be filed in either issuing court or that in which the criminal action was filed. (People vs CA GR 126379) Such remedy however is alternative, not cumulative. The court first taking cognizance of the motion does so to the exclusion of the other and the proceedings thereon are subject to the Omnibus Motion Rule and the rule against forum-shopping. (Garaygay vs People GR 135503) The judge may order the quashal of the warrant he issued even after the same had already been implemented, particularly when such quashal is based on the finding that there was no offense committed. The effect oof such quashal is that the items seized shall be inadmissible in evidence. (People vs Francisco GR 129035) B. Warrant of Arrest: Court where the information is filed. (People vs Chui GR 142915-16) Permutations of the right to the security of persons: a. The right to security of person is freedom from fear.  b. The right to a security of a person is a guarantee of bodily and psychological integrity or security. c. The right to security of a person is a guarantee of protection of one’s rights by the government. (p. 86-88 Duka) Exclusionary Rule >Consequence of a search or seizure without a warrant – Any evidence obtained in such shall be inadmissible in ANY proceeding. [Art II Sec 3(2).] >Effect of application for bail wrt to validity of a warrant – (Section 26, Rule 114 ROC) b) Warrant Requirement As mentioned earlier, warrant is necessary for the arrest or the seizure to be “reasonable”. Read Sec 6 Rule 112 of the ROC Requisites of a valid warrant 1. it must be issued upon probable cause 2. probable cause must be determined personally by a judge 3. such judge must examine under oath or affirmation the complainant and the witnesses he may produce 4. the warrant must particularly describe the place to be searched and the person or things to be seized. (p. 39 Bernas) Probable Cause Probable cause for the issuance of a warrant of arrest – Such facts and circumstances which would lead a reasonable discreet and prudent man to believe that an offense has been committed by the person sought to be arrested. (Henry vs US, 1959 case, p. 40 Bernas) Probable cause for search– Such facts and circumstances which would lead a reasonable discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place to be searched. (Henry vs US, 1959 case, p. 40 Bernas) Warrant must refer to one specific offense However, in the case of People vs Dichoso 223 SCRA 174, it was held that one search warrant may be validly issued for several violations of the Dangerous Drugs Act. Evidence needed to establish PC – those of a reasonably prudent man, not the exacting calibrations of a full blown trial. PC is concerned with probability, not absolute or even moral certainty. (Microsoft vs Maxicorp GR 140946) Should proof of PC refer to a specific offender? a. Search warrant – No b. Warrant of arrest – Yes (Webb vs de Leon GR 121234) Personal Determination Meaning of “personally” in the search and seizure clause As to warrant of arrest - personal determination and not personal examination of a judge. (Soliven vs Makasiar). The judge shall personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of PC and, on the basis thereof, issue a warrant of arrest; or if, on the basis thereof, he finds no PC, he may disregard the prosecutor’s report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of PC. (Cruz vs Judge Areola AM No. RTJ-01-1642.) The judge must look at the report, the affidavits, the transcripts of steno notes (if any), and all other supporting documents behind the Prosecutor’s certification. (Lim vs Felix GR 94054-57). The same rule applies to election offenses even if, in such cases, the PI is done by the COMELEC. (People vs Delgado. 189 SCRA 715.) Hearing is not necessary. In Webb vs De Leon 247 SCRA 652, it was held that the judge would simply personally review the initial determination of the prosecutor to see if it is supported by substantial evidence.  The judge is not tasked to review in detail the evidence submitted during PI. It is sufficient that the judge should personally evaluate the report and supporting documents submitted by the prosecution in determining probable cause. (Cruz vs People 233 SCRA 439) As to search warrant - the examining magistrate must make probing and exhaustive, not merely routine or pro forma examination of the applicant and the witnesses. (p. 92 Duka) Determination of PC for filing an information Such lies with the prosecution which is an executive function. Its correctness is a matter that the trial court itself does not and may not be compelled to pass upon. (People vs CA GR 126005) Examination under oath or affirmation General Rule: Where the judge failed to conform with the essential requisites of taking the deposition in writing and attaching them to the record, it was held that search warrant is invalid, and the fact that the objection thereto was raised only during the trial is of no moment, because the absence of such depositions was discovered only after the arrest and during the trial. (People vs Mamaril GR 147607) Exception: Such omission is not fatal if there is evidence on record showing that such personal examination was conducted and what testimony was presented. (People vs Tee GR 140546-47) Particularity The rule is that a description of the place to be searched is sufficient if the officer with the warrant can, with reasonable effort, ascertain and identify the place intended to be searched. (People v. Salanguit, G.R. Nos. 133254-55.) In determining the sufficiency of the description of the address, the executing officer’s prior knowledge of the place intended in the warrant is relevant eg. the executing officer was also the affiant on whose affidavit the warrant had issued. (Burgos Sr. vs Chief of Staff. 133 SCRA 800.)  A search warrant may be said to particularly describe the things to be seized when the description therein is as specific as the circumstances will ordinarily allow and by which the warrant officer may be guided in making the search and seizure. However, it is not required that a technical description be given. (People v. Rubio) Purpose of particularity – To prevent abuse by the officer enforcing the warrant by leaving to him no discretion as to who or what to search or seize. Take Note: Gen Rule : John Doe warrants are void. Exception: If such warrants contain a description personae to enable the officer to identify the accused. General Rule: Only the judge has the power to issue a warrant after the proper procedure has been duly taken. Exceptions: 1. The Commissioner of Immigration and Deportation may issue warrants only for the purpose of carrying out a final decision of deportation (CID v. Judge De la Rosa, G.R. No. 95122-23, May 31, 1991) or if there is sufficient proof of guilt of an alien (Harvey v. Defensor- Santiago, G.R. No. 82544, June 28, 1988; Qua Chee Gan v. Deportation Board. ) In such case, probable cause is not necessary. Warrant of arrest may be issued by administrative authorities only for the purpose of carrying out a final finding of a violation of law and not for the sole purpose of investigation or prosecution. – It may be issued only after the proceeding has taken place as when there is already a final decision of the administrative authorities.(Morano vs Vivo 20 SCRA 562) c. Warrantless Searches In these cases (except Terry search), probable cause is necessary. PC, in these cases, must only be based on reasonable grounds of suspicion or belief that a crime has been committed or is about to be committed as determined by the searching officer. (People vs Aruta GR 120915)  a. Search incident to a lawful arrest. A person lawfully arrested may be searched for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense without a search warrant. (Sec. 13, Rule 126, ROC) A person lawfully arrested may be searched for dangerous weapons or anything which may be used as proof of the commission of the offense. The search may extend beyond the person of the one arrested to include the permissible area or surroundings within his immediate control. The lawful arrest being the sole justification for the validity of the warrantless search under the exception, the same must be limited to and circumscribed by the subject, time and place of the arrest. As to subject, the warrantless search is sanctioned only with respect to the person of the suspect, and things that may be seized from him are limited to “dangerous weapons” or “anything which may be used as proof off the commission of the offense.” With respect to time and place of the warrantless search, it must be contemporaneous with the lawful arrest. Stated otherwise, to be valid the search must be conducted at about the time of the arrest or immediately thereafter and only at the place where the suspect was arrested, or the premises or surroundings under his immediate control. (People v. Ting, etc., G.R. Nos. 130568-69) Tests for a valid warrantless search incidental to lawful arrest: 1. item to searched was within the arrestee’s custody or area of immediate control. 2. the search was contemporaneous with the arrest. (Bernas p. 47) b. When it involves prohibited articles in "plain view." Requisites: 1. prior valid intrusion into a place; 2. the evidence inadvertently discovered by the police who had the right to be where they are; 3. the legality of the evidence must be immediately apparent; 4. is noticed without further search  c. Search of a moving vehicle. Highly regulated by the government, the vehicle's inherent mobility reduces expectations of privacy especially when its transit in public thoroughfares furnishes a highly reasonable suspicion amounting to probable cause that the occupant committed a criminal activity. Probable cause for warrantless search of vehicles (EXTENSIVE SEARCH). Although the term eludes exact definition, probable cause 1) signifies a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man’s belief that the person accused is guilty of the offense with which he is charged; or 2) the existence of such facts and circumstances which could lead a reasonably discreet and prudent man to believe that an offense has been committed and that the items, articles or objects sought in connection with said offense or subject to seizure and destruction by law is in the place to be searched. The required probable cause that will justify a warrantless search and seizure is not determined by a fixed formula but is resolved according to the facts of each case. (Caballes v. Court of Appeals, et al., G.R. No. 136292, January 15, 2002) ROUTINE INSPECTIONS are not regarded as violative of an individual’s right against unreasonable search. The search which is normally permissible is limited to the following instances: a) where the officer merely draws aside the curtain of a vacant vehicle which is parked on the public fair grounds; b) simply looks into a vehicle; c) flashes a light therein without opening the car’s doors; d) where the occupants are not subjected to a physical or body search; e) where the inspection of the vehicles is limited to a visual search or visual inspection; and f) where the routine check is conducted at a fixed area. (Caballes v. Court of Appeals, et al., G.R. No. 136292 d. Consented warrantless search.  In case of consented searches or waiver of the constitutional guarantee, against obtrusive searches, it is fundamental that to constitute a waiver, it must first appear that: a. The right exists; b. The person involved had knowledge, either actual or constructive, of the existence of such right; and c. The said person had an actual intention to relinquish the right. (People v. Figueroa, et al., G.R. No. 124056) Relevant to this determination are the following characteristics of the person giving consent and the environment in which consent is given: 1) The age of the defendant; 2) Whether he was in a public or secluded location; 3) Whether he objected to the search or passively looked on; 4) The education and intelligence of the defendant; 5) The presence of coercive police procedures; 6) The defendant’s belief that no incriminating evidence will be found; the nature of the police questioning; the environment in which the questioning took place; and 7) the possibly vulnerable subjective state of the person consenting. It is the State which has the burden of proving, by clear and positive testimony, that the necessary consent was obtained and that it was freely and voluntarily given. (Caballes v. Court of Appeals, et al., G.R. No. 136292) A peaceful submission to a search or seizure is not consent or an invitation thereto, but is merely a demonstration of regard for the supremacy of the law. (People v. Cubcubin) Permission granted for officers to enter a house to look for rebel soldiers does not include permission for a room to room search. (Spouses Veroy vs Layague GR 95632) e. Customs searches. – Seizure of goods concealed to avoid duties. (Pacis vs Pamaran 56 SCRA 16) People v. Escano, et al., G.R. Nos. 129756-58  REASONS why there is no necessity for the Bureau of Customs to secure a judicial search warrant where the place to be searched is not a dwelling place: 1) There should be no unnecessary hindrance on the government’s drive to prevent smuggling and other frauds upon the Customs; 2) To render effective and efficient the collection of import and export duties due the State, which enables the government to carry out the functions it has been instituted to perform (Jao, et al., v. Court of Appeals, et al., and companion case, 249 SCRA 35, 43); and 3) The doctrine of primary jurisdiction. Searches without warrant of automobiles is also allowed for the purpose of preventing violations of smuggling or immigration laws, provided such searches are made at borders or ‘constructive borders’ like checkpoints near the boundary lines of the State. (Caballes v. Court of Appeals, et al., G.R. No. 136292, January 15, 2002) f. Terry search: "Stop and frisk" is a "limited protective search of outer clothing for weapons." While probable cause is not required to conduct a "stop and frisk," mere suspicion or a hunch will not invalidate it. A GENUINE REASON must exist, in light of the police officer’s experience and surrounding conditions, to warrant the belief that the person detained has weapons concealed about him. (Malacat v. Court of Appeals, G.R. No. 123595) It serves a two-fold interest: 1) the general interest of effective crime prevention and detection, which underlies the recognition that a police officer may, under appropriate circumstances and in an appropriate manner, approach a person for purposes of investigating possible criminal behavior even without probable cause. 2) the more pressing interest of safety and self-preservation which permit the police officer to take steps to assure himself that the person with whom he deals is not armed with a deadly weapon that would unexpectedly and fatally be used against the police officer. (Malacat vs CA)  g. Administrative Searches – Inspection of buildings and other premises to enforcement of fire, sanitary, and building regulations. Camara vs Municipal Court 387 US 523 held that to sustain such searches without a search warrant; there must be probable cause and urgency to justify the inspection. h. Warrantless search arising from exigent circumstance This was applied in People vs De Gracia GR 102009-10 where there were intelligence reports that the buikding was being used as headquarters by the RAM during the 1989 coup d etat. Surveillance indicated rebel activities in the building. Nearby courts were closed and general chaos and disorder prevailed. Under these situations, the raiding team had no opportunity to apply foor and secure a search warrant from the courts. Under such urgency and exigency of the moment, a search warrant should be lawfully be dispensed with. >Property to be searched need not be owned by the person against whom the search warrant is directed. Sufficient that the property is under control or possession of the person sought to be searched. d. Warrantless Arrests A peace officer or a private person may, without warrant, arrest a person: (a) When in his presence, the person to be arrested has committed, is actually committing or is attempting to commit an offense. Requisites for valid in flagrante warrantless arrest 1. The person to be arrested must execute an overt act indicating that he a. has just committed, b. is actually committing, or c. is attempting to commit a crime; and; 2. Such overt act is done in the presence or within the view of the arresting officer. (People v. Molina, G.R. No. 133917) Entrapment; when allowed  Where the criminal intent originates in the mind of the entrapping person and the accused is lured into the commission of the offense charged in order too prosecute him, there is entrapment and no conviction may be had. Where the criminal intent originates in the mind of the accused and the criminal offense is completed, the fact that a person acting as a decoy for the state, or public officials furnished the accused an opportunity for commission of the offense, or that the accused is aided in the commission of the crime in order to secure the evidence necessary to prosecute him, there is no entrapment and the accused must be convicted. (People vs Doria GR 125299) (b) When an offense has in fact just been committed, and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it (Rule 113 Sec 5 ROC) Personal knowledge of facts” in warrantless arrest must be based upon probable cause, which means an actual belief or reasonable ground of suspicion. Person charged with rebellion, subversion, conspiracy or proposal to commit such crimes, and crimes or offenses committed in furtherance thereof may be arrested without a warrant these being continuing offenses and therefore the accused are assumed to be always continuing the offense. (Umil vs Ramos GR 81567) (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with section 7 of Rule 112. (Sec. 5, Rule 113, ROC) Remedies for unlawful arrest:  a. Motion for the quashal of the warrant; b. Motion for reinvestigation. Instances considered as waiver of illegal arrest: 1) Failure to challenge the validity of the arrest and search, as well as the admission of the evidence obtained thereby, is considered a waiver of the constitutional rights, particularly against unreasonable searches and seizures. (People v. Cuison, et al., G.R. No. 109287) 2) Any irregularity attendant to the arrest was cured by voluntary submission to the jurisdiction of the trial court upon entering a plea and participation during the trial. (People v. Tumaneng, G.R. No. 117624) 3) The filing of charges and the subsequent issuance of a warrant of arrest against a person invalidly detained will cure the defect of that detention or at least deny him the right to be released because of such defect. (The minor Larranaga, et al., v. Court of Appeals, et al., G.R. No. 130644) 4) Failure to question the legality of the arrest before arraignment is deemed a waiver of such defense. (People v. Deang, et al., G.R. No. 128045) e) Administrative arrests Warrant of arrest may be issued by administrative authorities only for the purpose of carrying out a final finding of a violation of law, like an order of deportation or an order of contempt, and not for the sole purpose of investigation or prosecution. – It may be issued only after the proceeding has taken place as when there is already a final decision of the administrative authorities. The requirement of probable cause, to be determined by the Judge, does not extend to deportation proceedings. (Morano vs Vivo 20 SCRA 562) In the case of Harvey vs Santiago 162 SCRA 840, it was held that the arrest is a step preliminary to the deportation of the aliens who had violated the conditions of their stay in this country. To rule otherwise would be to render the authority given the Commissioner nugatory to the detriment of the State. f) Drug, Alcohol, and Blood Tests Doctrine in SJS vs DDB Drug Testing of those charged with a crime We find the situation entirely different in the case of persons charged before the public prosecutor's office with criminal offenses punishable with six (6) years and one (1) day imprisonment. The operative concepts in the mandatory drug testing are "randomness" and "suspicionless." In the case of persons charged with a crime before the prosecutor's office, a mandatory drug testing can never be random or suspicionless. The ideas of randomness and being suspicionless are antithetical to their being made defendants in a criminal complaint. They are not randomly picked; neither are they beyond suspicion. When persons suspected of committing a crime are charged, they are singled out and are impleaded against their will. The persons thus charged, by the bare fact of being haled before the prosecutor's office and peaceably submitting themselves to drug testing, if that be the case, do not necessarily consent to the procedure, let alone waive their right to privacy.40 To impose mandatory 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. Random Drug Test for students and public and private employees As the warrantless clause of Sec. 2, Art III of the Constitution is couched and as has been held, "reasonableness" is the touchstone of the validity of a government search or intrusion. And whether a search at issue hews to the reasonableness standard is judged by the balancing of the government - mandated intrusion on the individual's privacy interest against the promotion of some compelling state interest. In the criminal context, reasonableness requires showing of probable cause to be personally determined by a judge. Given that the drug - testing policy for employees-- and students for that matter--under RA 9165 is in the nature of administrative search needing what was referred to in Vernonia as "swift and informal disciplinary procedures," the probable - cause standard is not required or even practicable. Be that as it may, the review should focus on the reasonableness of the challenged administrative search in question.  To reiterate, RA 9165 was enacted as a measure to stamp out illegal drug in the country and thus protect the well - being of the citizens, especially the youth, from the deleterious effects of dangerous drugs. The law intends to achieve this through the medium, among others, of promoting and resolutely pursuing a national drug abuse policy in the workplace via a mandatory random drug test. To the Court, the need for drug testing to at least minimize illegal drug use is substantial enough to override the individual's privacy interest under the premises. The Court can consider that the illegal drug menace cuts across gender, age group, and social - economic lines. And it may not be amiss to state that the sale, manufacture, or trafficking of illegal drugs, with their ready market, would be an investor's dream were it not for the illegal and immoral components of any of such activities. The drug problem has hardly abated since the martial law public execution of a notorious drug trafficker. The state can no longer assume a laid back stance with respect to this modern - day scourge. Drug enforcement agencies perceive a mandatory random drug test to be an effective way of preventing and deterring drug use among employees in private offices, the threat of detection by random testing being higher than other modes. The Court holds that the chosen method is a reasonable and enough means to lick the problem. Taking into account the foregoing factors, i.e., the reduced expectation of privacy on the part of the employees, the compelling state concern likely to be met by the search, and the well - defined limits set forth in the law to properly guide authorities in the conduct of the random testing, we hold that the challenged drug test requirement is, under the limited context of the case, reasonable and, ergo, constitutional. Blood Tests US Cases In the criminal context, reasonableness usually requires a showing of probable cause. The probable-cause standard, however, is peculiarly related to criminal investigations and may be unsuited to determining the reasonableness of administrative searches where the Government seeks to prevent the development of hazardous conditions. The American Court has held that a warrant and finding of probable cause are unnecessary in the public school context because such requirements would unduly interfere with the maintenance of the swift and informal disciplinary procedures that are needed. (Board of Education vs Earls No. 01332 June 27 2002) However, it was held in Skinner vs Railway Labor Executives’ Assn [489 US 602 (1989)], that requiring a person to submit urine or blood, or to undergo breathalyzer testing for the purpose of determining whether he is under the influence of alcohol or drugs are considered a species of search that is governed by the constitutional proscription against unreasonable searches and seizures. (Meaning PROBABLE CAUSE or an Individualized Suspicion is Required) The exception to this is the doctrine under US vs Martinez-Fuerte (428 US 560) where it was held that, in limited circumstances, where the privacy interests implicated by the search are minimal and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion, a search may be reasonable despite the absence of such suspicion. (probably the reason why we have the US case of BOE vs Earls) 6. PRIVACY OF COMMUNICATIONS AND CORRESPONDENCE What it covers: Letters, messages, telephone calls, telegrams and the like. (p. 56 Bernas) Intrusion allowed: Lawful order of the court, or when public safety or order requires otherwise as prescribed by law. Grounds when a court may allow intrusion: Requirement of probable cause. (p 56 Bernas) Requisites when intrusion is made without judicial order: a) Must be based on the government official’s assessment that public safety and order demand such intrusion. b) The exercise of this power by an executive officer is subject to judicial review. c) Such executive officer must be properly authorized except the President.  > Exclusionary Rule applies > The right is personal. See RA 4200 a) Private and Public communications Navarro vs CA 313 SCRA 153 Thus, the law prohibits the overhearing, intercepting, or recording private communications (RA 4200). Since the exchange between petitioner Navarro and Lingan was not private, its tape recording is not prohibited, hence, admissible in evidence. In Chavez vs Gonzales, the airing of the Garci Tapes does not violate the right to privacy because the content of the Garci Tapes is a matter of important public concern – the Constitution guarantees the people’s right to information on matters of public concern (even if the communications between GMA and Garci are private in nature.) In the case of Garcillano vs House of Rep (575 SCRA 170), it was held that a private communication is characterized as such based not on the content of the communication, but on the context that it was said in private and not for public consumption. The nature of the conversations is immaterial to a violation of the statute (RA 4200 or Anti-Wiretapping Law). The substance of the same need not be alleged in the information. What RA 4200 penalizes are the acts of secretly overhearing, intercepting, or recording private communications by means of devices enumerated therein. According to Senate deliberations re this statute, what is contemplated in the law is the communication between one person and another person – not between a speaker and a public. Says Senator Tanada (author of the law), “Because precisely, the speaker speaks so that the public may know what he has in mind, what he wants to communicate to the people, and there should be no objection to tape recording that speech..”RA 4200 however provides for exceptions when wiretapping is allowed by written order of the court under its Section 3. When legal – when done with consent of the parties or lawful court order. Notably, in the exceptions to the right in Art III Section 3, no law has been passed except RA 4200 depicting the phrase “when public safety or order requires otherwise as PRESCRIBED BY LAW”. b) Writ of Habeas Data  The writ of habeas data was conceptualized as a judicial remedy enforcing the right to privacy, most especially the right to informational privacy of individuals. The writ operates to protect a person’s right to control information regarding himself, particularly in the instances where such information is being collected through unlawful means in order to achieve unlawful ends. An indispensable requirement before the privilege of the writ may be extended is the showing, at least by substantial evidence, of an actual or threatened violation of the right to privacy in life, liberty or security of the victim. Meralco vs Lim GR 184769 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 of or threats to the rights to life, liberty or security as a remedy independently from those provided under prevailing Rules 7. FREEDOM OF EXPRESSION Concept and Scope In Blo Umpar Adiong vs COMELEC, it was held that freedom of expression is the matrix, the indispensable condition of nearly every other freedom. Under this guarantee, the people are to determine their own direction and chart their own destiny through the free exchange of ideas and not through dictation from or coercion of the government or anybody else’s.  Historically, the guarantees of free expression were intended to provide some assurance that government would remain responsive to the will of the people, in line with the constitutional principle that sovereignty resides with the people and all government authority emanates from them. (Gonzales vs COMELEC 27 SCRA 835 Sep.Opinion ) The doctrine of freedom of speech was formulated primarily for the protection of the “core speech”, speech which communicates political, social, or religious ideas. It does not apply to commercial speech or the communication which no more than proposes a commercial transaction. (Beda Reviewer 2010 p. 19) Scope: Any and all modes of expression are embraced in the guaranty. (Nachura p. 147) Prior Restraint Prior restraint means official government restrictions on the press or other forms of expression in advance of actual publication or dissemination. Forms: 1. System of licensing administered by an executive officer 2. Movie censorship 3. Press censorship 4. Judicial prior restraint – takes form of an injunction against publication (Bernas p. 58) There need not be total suppression; even restriction of circulation constitutes censorship. (Grossjean vs American Press 297 US 233) Power of MTRCB can be exercised only for purposes of classification, not censorship. Live TV Coverage may be prohibited since the right of the accused must prevail over the right of the public to information and freedom of the press. (AM No. 01-4-03-SC) Can only be justified under the clear and present danger test. (Viva Productions vs CA GR 123881) O’Brien test – a governmental regulation is valid if:  a) it is within the constitutional power of the government; b) it furthers an important or substantial governmental interest; c) the governmental interest is unrelated to the suppression of expression; d) the incidental restriction on the freedom is no greater than is essential to the furtherance of that interest. In the case of Chavez vs Gonzales, (545 SCRA 4451), it was held that the alleged violation of the Anti-Wiretapping Law is not in itself a ground to impose a prior restraint on the airing of the Garci Tapes because the Constitution expressly prohibits the enactment of any law, and that includes anti-wiretapping laws, curtailing freedom of expression Subsequent Punishment Freedom from subsequent punishment is not absolute, and may be properly regulated in the interest of the public. The State may validly impose penal and/or admin sanctions such as the following: A. Libel – Art 353 RPC.There is presumption of malice here with exceptions under the RPC provision. The remedy of the person libeled is to show proof that an article was written with the author’s knowledge that it was false or with reckless disregard of whether it was false or not. (Baguio Midland vs CA GR 107566.) B. Obscenity Tests of Obscenity: 1. whether the average person, applying contemporary standards, would find the work, taken as a whole, appeals to the prurient interest; 2. whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by law; 3. whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value. Determination as to what is obscene is a judicial function. C. Fighting words – those which by their very utterance, inflict injury or tend to incite an immediate breach of the peace – since they are no essential part of any exposition of ideas, are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. (Chaplinsky vs New Hampshire 315 US 568) Content-Based and Content-Neutral Regulations a) Content-based Regulations These restrictions are imposed because of the content of the speech itself; distort public debate, have improper motivation, and are usually imposed because of fear how people will react to a particular speech. This is subject to a clear-and-present danger rule. (p. 171 Duka) xxx what to read or see or hear, regulations which are content-based – those which either approve or disapprove based on the contents of the expression, such a favoring or disfavoring some topics – are subjected to strict scrutiny, ie the government is required to justify them by the presence of a compelling state interest and a showing of an absence of any other means by which the state objective could be attained. These restrictions, it will be seen, are censorial and therefore they bear a heavy presumption of constitutional invalidity. In addition, they will be tested for possible overbreadth and vagueness. (Osmeña vs COMELEC 288 SCRA 447) b) Content-Neutral Regulations These restrictions are not concerned with the content of speech. These regulations need only a substantial governmental interest to support them. A deferential standard of review will suffice to test their validity. The restriction simply regulates the time, place or manner of the dissemination of speech or expression. c) Facial Challenges and the Overbreadth Doctrine (government act necessary) Facial Challenge - The established rule is that a party can question the validity of a statute only if, as applied to him, it is unconstitutional. The exception is the so-called facial challenge. But the ONLY time a facial challenge to a statute is allowed is when it operates in the area of freedom of expression. In such instance, the “overbreadth doctrine” permits a party to challenge the validity of a statute even though, as applied to him, it is not unconstitutional. Invalidation of the statute “on its face”, rather than “as applied”, is permitted in the interest of preventing a “chilling effect” on freedom oof expression. (Cruz vs DENR GR 135385.) A facial challenge to a legislative act is the most difficult challenge to mount successfully since the challenge must establish that no set of circumstances exists under which the act would be valid. (Estrada vs Sandiganbayan GR 148560). (Termed as facial review USING the overbreadth doctrine in the case of David vs Macapagal-Arroyo) In the latter case, the following doctrines were made: 1. The overbreadth doctrine is an analytical tool developed for testing on their face statutes in free speech cases, not for testing the validity of a law that reflects legitimate state interest in maintaining comprehensive control over harmful, constitutionally unprotected conduct. 2. Facial invalidation of laws is considered a manifestly strong medicine, to be used sparingly and only as a last resort. In the case of Romualdez vs COMELEC (573 SCRA 639), it was held that only statutes on free speech, religious freedom and other fundamental rights may be facially challenged; Under no case may ordinary penal statutes be subjected to facial challenges. Overbreadth Doctrine – prohibits the government from achieving its purpose by means that sweep unnecessarily broadly, reaching constitutionally protected as well as unprotected activity. The essence of “overbreadth” is that the government has gone too far; its legitimate interest can be satisfied without reachingso broadly into the area of protected freedom. (p 152 Nachura.) The SC in one case held that a statute or regulation is void for overbreadth when it offends the constitutional principle that a government purpose to control or prevent activities constitutionally subject to State regulation may not be achieved by means that sweep unnecessarily broadly and thereby invade the area of protected freedoms. (Chavez vs COMELEC 437 SCRA 415).  In the case of Romualdez vs COMELEC (553 SCRA 370), it was held that overbreadth and vagueness doctrines may be applied to free speech cases and penal statutes as well. d) Tests It is accepted view that prior restraint can only be justified under the clear and present danger test. (refer to discussions above) In Schanck vs US (No. 437, 438), it was held that the test is used when words are used in such circumstance and of such nature as to create a clear and present danger that will bring about the substantive evil that the State has the right to prevent. Clear – Causal connection with the danger of the substantive evil arising from the utterance questioned. Present – time element, identified with imminent and immediate danger; the danger must not only be probable, but very likely inevitable. (Gonzales vs COMELEC Np. L – 27833) In “subsequent punishment”, however, there are three tests which are 1) Clear and Present Danger Test; 2) Dangerous Tendency Test; and 3) Balancing of Interests Test. Dangerous Tendency Test – In Cabansag vs Fernandez (102 Phil 152) if the words uttered create a dangerous tendency of an evil which the State has the right to prevent, then such words are punishable. It is sufficient if the natural tendency and the probable effect of the utterance were to bring about the substantive evil that the legislative body seeks to prevent. Balancing of Interests Test – When particular conduct is regulated in the interest of public order, and the regulation results in an indirect, conditional, or partial abridgment of speech, the duty of the courts is to determine which of the two conflicting interests demands the greater protection under the particular circumstances presented. (American Communications Assoc vs Douds 339 US 282). It requires a court to take conscious and detailed consideration of the interplay of interests observable in a given situation. (Zaldivar vs Sandiganbayan.)  The test applied when two legitimate values not involving national secuirty crimes compete. Involves an appoint of the competing interest. (Gonzales v. Comelec). In Aver v. Capulong and Enrile, for instance, it is a question of balancing the freedom of expression of the producer and the right to privacy of Enrile. Grave-but-improbable danger: Whether the gravity of the evil, discounted by its improbability, justifies such an invasion of free speech as is necessary to avoid the danger. (Dennis v. United States, 341 US 494 (1951), quoting Judge Learned Hand.) This test was meant to supplant the clear and present danger. They both emphasize the circumstances of the speech, but this latter test consider the weighing of values. Direct Incitement Test: The constitutional guarantees of free speech and press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation, except where such advocacy or speech is directed to inciting or producing imminent lawless action, and is likely to incite or produce such action. [Brandenburg v. Ohio, 395 U.S. 444 (1969), cited in Salonga v. Cruz Pano, 134 SCRA 438 (1985).] The test emphasizes the very words uttered: (a) What words did he utter? (b) What is the likely result of such utterance? It criticizes the clear and present danger test for being too dependent on the circumstances. Speaker may, when tested show no incitement but you know the speaker is inciting to sedition. State Regulation of Different Types of Mass Media Depending on the form and medium in which speech is being exercised, to that extent may it also affect the extent of governmental power expended. Thus the power applied is not the same in regard to regulation of pure speech as against expressive conduct, the print media vis-à-vis the broadcast media, or that between TV and movies. In the same way, differences in situation between a daily newspaper and a weekly magazine may call for a different standard of diligence which would affect the liability of damages. Further, while mere possession of obscene materials might not be criminalized, it would be an entirely different matter if the material involves child pornography. Relevant cases: Pure speech vs Expressive speech The government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word. (Texas vs Johnson 491 US 397) Print vs Broadcast media All forms of media, whether print or broadcast, are entitled to the broad protection of the freedom of speech and expression clause. The test for limitations on freedom of expression continues to be the clear and present danger rule. The clear and present danger test, however, does not lend itself to a simplistic and all embracing interpretations applicable to all utterances in all forums. All forms of communication are entitled to the broad protection of the freedom of expression clause. Necessarily, however, the freedom of television and radio broadcasting is somewhat lesser in scope than the freedom accorded to newspaper and print media. In American Court in Federal Communications Commission vs Pacifica (438 US 726), it was held by the US SC that radio broadcasting receives the most limited protection from the free expression clause. First, broadcast media have established a uniquely pervasive presence in the lives of all citizens. Material presented over the airwaves confronts the citizen, not only in public, but in the privacy of his home. Second, broadcasting is uniquely accessible to children. Bookstores and motion pictures theaters may be prohibited from making certain material available to children, but the same selectivity cannot be done in radio or TV, where the listener or viewer is constantly turning in and out. (Eastern Broadcasting vs Dans 137 SCRA 628)  While all forms of communication are entitled to the broad protection of freedom of expression clause, the freedom of film, television and radio broadcasting is somewhat lesser in scope than the freedom accorded to newspapers and other print media. (Chavez vs Gonzales) The broadcast media have also established a uniquely pervasive presence in the lives of all Filipinos. Newspapers and current books are found only in metropolitan areas and in the poblaciones of municipalities accessible to fast and regular transportation. Even here, there are low income masses who find the cost of books, newspapers, and magazines beyond their humble means. Basic needs like food and shelter perforce enjoy higher priorities. On the otheRhand, the transistor radio is found everywhere. The TV set is also becoming universal. Their message may be simultaneously received by a national or regional audience or listeners including the indifferent and the unwilling who happen to be within reach of a blaring radio or TV set. Unlike readers of the printed work, the radio audience has lesser opportunity to cogitate analyze, and reject the utterance. Re Broadcast vs Printed media 1st, the difference in treatment, in the main, is in the regulatory scheme applied to broadcast media that is not imposed on traditional print media, and narrowly confined to unprotected speech (e.g. obscenity, porno, seditious and inciting speech) or is based on a compelling government interest that also has constitutional protection, such as national security or the electoral process. 2nd, regardless of the regulatory schemes that broadcast media is subjected to, the Court has consistently held that the clear and present danger test applies to content-based restrictions on media, without making a distinction as to traditional print or broadcast media. (Chavez vs Gonzales.) Internet Internet remains largely unregulated, yet the Internet and the broadcast media share similarities, and the rationales used to support broadcast regulation apply equally to the Internet. Thus, it has been argued that courts, legislative bodies and the government agencies regulating media must agree to regulate both, regulate neither or develop a new regulatory framework and rationale to justify the differential treatment. (Chavez vs Gonzales.) TV and movies All that remains to be said is that the ruling is to be limited to the concept of obscenity applicable to motion pictures. It is the consensus of this Court that where television is concerned: a less liberal approach calls for observance. This is so because unlike motion pictures where the patrons have to pay their way, television reaches every home where there is a set. Children then will likely will be among the avid viewers of the programs therein shown. As was observed by Circuit Court of Appeals Judge Jerome Frank, it is hardly the concern of the law to deal with the sexual fantasies of the adult population. It cannot be denied though that the State as parens patriae is called upon to manifest an attitude of caring for the welfare of the young. (Gonzales vs Kalaw Katigbak 137 SCRA 717) Daily and weekly magazines Pressure of deadline not a defense in libelous application in a weekly magazine.. While a newspaper should not be held to account for honest mistakes owing to the pressure of a daily deadline, there is no such pressure to meet and no occasion to act with haste in a weekly magazine. (Lopez vs CA 34 SCRA 116 (1970) Halos end..No. 3) Commercial Speech Commercial Speech – It is a communication which no more than proposes a commercial transaction Advertisement of goods or services is an example. To enjoy protection, commercial speech must not be false or misleading (Friedman vs Rogers 440 US 1) and should not propose an illegal transaction. (Pittsburgh Press vs Human Relations Commission 413 US 376.) However, even truthful and lawful commercial speech may be regulated if: 1. Government has substantial interest to protect 2. The regulation directly advances that interest  3. It is not more extensive than is necessary to protect the interest. (Central Hudson vs Public Service Commission No 79-565. ) Private and Government Speech (?) Heckler’s Veto It is where, literally, the opposition of a rowdy or obstreperous crowd might as well drown out the voice of the one seeking to exercise the right to speak. In legal context, that might come in the form of regulations tending to prevent the expression of an idea in view of the reaction that might be engendered among those opposed to it. This may be in the guise of a permit requirement in the holding of rallies, parades or demonstrations conditioned on the payment of a fee computed on the basis of the cost needed to keep order in view of the expected opposition by persons holding contrary views. (Forsyth County vs Nationalist Movement. 505 US 123) 8. FREEDOM OF RELIGION Art. III, Sec. 5. No law shall be made respecting an establishment of religion; or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights. a. Non-Establishment Clause The clause prohibits excessive government entanglement with, endorsement or disapproval of religion. (Victoriano v. Elizalde Rope Workers Union 59 SCRA 54) The clause prohibits the State from establishing a religion. In assessing the validity of the law, the questions to be asked are: a. Is the purpose of the law religious, or is it secular? b. Does it or does it not inhibit or advance religion? c. Is its effect to promote or to avoid an excessive entanglement between the State and religious matters in religion? The Non-Establishment clause is violated when the State gives any manifest support to any one religion, even if nothing is done against the individual. Purpose of the NE Clause Voluntarism and insulation of the political process from interfaith dissension. Other Constitutional provisions which support the non-establishment clause: Sec 2(5), Article IX-C (A religious sect or denomination cannot be registered a a political party) Sec 5(2), Article VI (No sectoral representative from the religious sector) Sec 29(2), Article VI (Prohibition against the use of public money or property for the benefit of religion, or of any priest, minister, or ecclesiastic) Exceptions to the NE Clause: (p. 60 Nachura) Sec 28(3), Art VI (exemption from taxation of properties ADE for religious purposes) Sec 4(2), Article XIV (citizenship requirement of ownership of educational institutions except those established by religious groups and mission boards) Sec 3(3), Article XIV (optional religious instruction) Sec 29(2) Article VI (appropriation allowed to minister or ecclesiastic) Scope: 1. The State cannot set-up a church 2. The State cannot pass laws which aid one religion, all religions or prefer one over another. 3. The State cannot influence a person to remain or to go away from a church against his will. 4. The State cannot force a person to profess a belief or disbelief in any religion. (p. 212-213 Duka) Intramural religious dispute – Where a civil right depends upon some matter pertaining to ecclesiastical affairs, the civil tribunal tries the civil right and nothing more. (Gonzales vs Archbishop 51 Phil 420) In matters purely ecclesiastical the decisions of the proper church tribunals are conclusive upon the civil tribunal. (Long and Almeria vs Basa GR 134963-64.)  While the State is prohibited from interfering in purely ecclesiastical affairs, the Church is likewise barred from meddling in purely secular matters. (Austria vs NLRC GR 124382). Ecclesiastical affair – one that concerns doctrine, creed or form of worship of the church, or the adoption and enforcement within a religious association of needful laws and regulations for the government of the membership, and the power of excluding from such associations those deemed unworthy of membership. (p. 162 Nachura) When is government aid allowable? When all the following requisites are present: 1. must have a secular legislative purpose 2. must have a primary effect that neither advances nor inhibits religion 3. must not require excessive entanglement with recipient institutions. b) Free Exercise clause Aspects: 1. Freedom to believe – Absolute 2. Freedom to act according to one’s belief – Where the individual externalizes his beliefs in acts or omissions that affect the public, his freedom to do so becomes subject to the authority of the State. The exercise of religious freedom does not exempt anyone from compliance with reasonable requirements of the law, including civil service laws. (AM No. 02-2-10 SC) Compelling State Interest Test In applying the test: The 1st inquiry is whether respondent’s right to religious freedom has been burdened. The 2nd step is to ascertain respondent’s sincerity in her religious belief. The 3rd inquiry is whether there is a compelling state interest the burden of evidence of which must be discharged by the government. (Estrada vs Escritor; AM No P-02-1651) Compelling means that the violation will erode the very fabric of the state that will also protect the freedom. (Estrada vs Escritor; AM No P-02- 1651) The constitution’s religion clauses prescribe not strict but benevolent neutrality. Benevolent neutrality recognizes that government must pursue its secular goals and interests, but at the same time, strive to uphold religious liberty to the greatest extent possible within flexible constitutional limits. (Estrada vs Escritor; AM No P-02-1651) Some doctrines: Ebralinag vs Division upheld the petitioner’s right of the petitioners to refuse to salute the Philippine flag on account of religious scruples Invocation of religious scruples in order to avoid military service was brushed by the SC in People vs Zosa SC upheld the validity of RA 3350, exempting members of religious sect from being compelled to join a labor union. This guarantee includes the right to disseminate religious information, and any restraint on such right can be justified only on the ground of clear- and-present-danger test. 9. LIBERTY OF ABODE AND FREEDOM OF MOVEMENT Art 13(2) UDHR, - provide that everyone has the right to leave any country, including his own, and to return to his country. Art 12 (4), Covenant on Civil and Political Rights provide that no one shall be arbitrarily deprived of the right to enter his own country. Liberty guaranteed by the Constitutional provision Freedom to choose and change one’s place of abode. (See RA 8368 and RA 7279) Freedom to travel both within the country and outside. (Bernas p. 89) Purpose To further emphasize the individual’s liberty as safeguarded in general terms in the due process clause. (p 168 Cruz 2000 ed.) Squatting now decriminalized under RA 8368 (Duka p. 222) Limitations  Limitations on liberty of abode – lawful order of the Court Some recognized exceptions to the right 1. A lessee may be judicially ejected for violation of his contractual duties 2. Forced evacuation in volcanic eruption. (p. 169 Cruz 2000 ed) 3. Rubi vs Provincial Board of Mindoro requiring non-Christian to reside in a reservation (validated by the court under PP) Limitations on the liberty to travel – Interest of national security, public safety, or public health, as may be provided by law; including lawful order of the court (as when an accused is released on bail). (Nachura p. 165) While the liberty of travel may be impaired even without court order, the appropriate executive officers or administrative authorities are not armed with arbitrary discretion to impose limitations. They can impose limits only on the basis of national security, public safety, or public health and as may be provided by law. (Manotoc vs CA 142 SCRA 149) Re: Hold Departure Order. In Defensor-Santiago vs Vasquez (217 SCRA 633), the Court further clarified the foregoing principles: 1) HDO is but an exercise of the court’s inherent power to preserve and maintain the effectiveness of its jurisdiction over the case and over the person of the accused, 2) by posting bail, the accused holds herself amenable to the orders and processes of the court thus, she may be legally prohibited from leaving the country, 3) parties with pending cases should apply for permission to leave the country from the same courts Some recognized exceptions to the right 1. A person facing criminal charges may be restrained by the court from leaving the country or, if abroad, compelled to return. 2. The judge may prevent a person from entering certain premises under dispute or declared off-limits by the proper authorities. 3. Health officers may restrict access to contaminated areas and also quarantine those already exposed to disease sought to be contained. 4. Secretary of State may regulate or even prohibit the travel of citizens to hostile countries to prevent possible international misunderstanding and conflict. (p 169 Cruz 2000 ed) Return to one’s Country In Marcos vs Manglapus (178 SCRA 660), the SC sustained the refusal of the government to allow the petitioner’s return to the Philippines, on the ground that it would endanger national security. The right to travel and the liberty of abode are distinct from the right to return to one’s country, as shown by the fact the UDHR and the Covenant on HR have separate gurantees for these. Hence the right to return to one’s country is not covered by the specific right to travel and liberty of abode. Consequently, the requirements prescribed in Section 6 relative to the right to travel and the liberty of abode do not apply. (Implicitly the Court says that the right to return, not being specifically guaranteed, must be treated simply under the general rubric of liberty.) The Court also said that the right to travel guaranteed in the Constitution involves the right to travel within the country, the right to leave the country, but not the right to retun to one’s country. It arrived at this conclusion from the fact that the Universal Declaration of HR has one provision for the right to move within the country and out of the country and another for the right to return to one’s country. Thus, whereas the UDHR is normally used to affirm or supplement rights in domestic law, the Court chose to use it to curtail the guarantee of our domestic law. (Bernas, *Thick book, p. 379) 10. RIGHT TO INFORMATION Rights granted are: 1. The right to information on matters of public concern 2. The corollary right of access to official record and documents (given as an implementation of the right to information). (p. 91 Bernas) Access to information on matters of public concern is essential to the proper exercise of freedom of expression. (Cruz 2000 ed p 246) Take Note: These are POLITICAL RIGHTS available to citizens only.  Under RA 6713, public officials and employees are mandated to provide information on their policies and procedures in clear and understandable language, and ensure openness of information, public consultations and hearings whenever appropriate”, except when otherwise provided by law or when required by the public interest. In particular, the law mandates free public access, at reasonable hours, to the annual performance reports of offices and agencies of GOCCs and the statement of assets, liabilities and financial disclosures of all public officials and employees. Limitations The people’s right to know is limited to matters of public concern and is further subject to such limitation as may be provided by law. Similarly, the policy of full disclosure is confined to transactions involving public interest and is subject to reasonable conditions prescribed by law. The terms public concerns and public interest have eluded precise definition. But both terms embrace a broad spectrum of subjects which the public may want to know, either because these directly affect their lives or simply because such matters naturally whet the interest of an ordinary citizen. At the end of the day, it is for the courts to determine, on a case to case basis, whether or not an issue is of interest or importance to the public. (BA-RA 7941 vs COMELEC GR 177271) However, the following are recognized restrictions: 1. National security matters and intelligence information There is governmental privilege against public disclosure with respect to state secrets regarding the military, diplomatic and other national security matters. But where there is no need to protect such state secrets, the privilege may not be invoked to withhold documents and other information, provided that they are examined in strict confidence and given scrupulous protection. 2. Trade secrets and banking transactions – Ruling in Garcia vs Board of Investments; See: Bank Secrecy Law 3. Criminal matters Also excluded are classified law enforcement matters, such as those relating to the apprehension, the prosecution and the detention of criminals, which courts may not inquire into prior to such to such arrest, detention and prosecution. 4. Other confidential information The Ethical Standards Act further prohibits public officials and employees from using or divulging confidential or classified information officially known to them by reason of their office and not made available to the public. These include, diplomatic correspondence, closed door Cabinet meetings and executive sessions of either house of Congress, as well as the internal deliberations of the Supreme Court. (p. 235 Duka) 5. Privileged information rooted in separation of powers (p. 166 Nachura) In Legaspi vs CSC , it was held that while the manner of examining public records may be subject to reasonable regulation by the government agency in custody thereof, the duty to disclose the information of public concern, and to afford access to public records, cannot be discretionary on the part of said agencies. Publication of Laws and Regulations Mysterious pronouncements and rumored rules cannot be recognized as binding unless their existence and contents are confirmed by a valid publication intended to make full disclosure and give proper notice to the people. (Tanada vs Tuvera 146 SCRA 446) See: EO 200 and Article 2 CC Circulars having been issued for the implementation of the law authorizing its issuance has the force and effect of law, according to settled jurisprudence. (US vs Tupas Molina 29 Phil 119. ) Circulars which are mere statements of general policy as to how the law should be construed do not need presidential approval and publication. (Victoria Milling Corp vs Social Security Commission L-16704.) Rule on publication is applied to executive orders and admin rules the same having the force of the law. (p. 16 De Leon 2002 ed.) Access to Court Records In Baldoza vs Dimaano (71 SCRA 14), the SC sustained the right of a municipal mayor to examine judicial records , subject to reasonable rules and conditions. Quoting from Subido vs Ozaeta, (80 Phil 383), the Court said “ Except perhaps when it is clear that the purpose of the examination is unlawful or sheer, idle curiosity, we do not believe it is the duty under the law of registration officers to concern themselves with the motives, reasons and objects of the person seeking access to the records. In Hilado vs Reyes, (GR 163155), where petitioners, who had filed an action for damages against the decedent during its lifetime and whose claims for damages were included in the inventory of the liabilities in the proceedings for the settlement of the estate, sought to see the court records and obtain true copies of the inventory of the assets of the deceased but was denied the probate court, the SC granted access to the information sought. The Court held that unlike court orders and decisions, pleadings and other documents filed by parties to a case need not be matters of public concern or interest, and that access to public records may be restricted on a showing of good cause. In Lantaco vs Llamas, (108 SCRA 502), where a judge gave petitioners a run-around in obtaining a copy of a court decision, the Court said: “While public officers in custody or control of public records have the discretion to regulate the manner in which such records may be inspected, examined or copied by interested persons, such discretion does not carry with it the authority to prohibit access, inspection, examination, or copying. Right to Information Relative to Government Contract Negotiations In the case of Chavez vs PEA, it was held that the constitutional right to information includes official information on on-going negotiations before a final contract. The information, however, must constitute definite propositions by the government and should not cover recognized exceptions like privileged information, military and diplomatic secrets and similar matters affecting national security and public order. Information, for instance, on on-going evaluation or review of bids or proposals being undertaken by the bidding or review committee is not immediately accessible under the right of information. While the evaluation or review is still on-going, there are no “official acts, transactions or decisions” on the bids or proposals. However, one the committee makes it official recommendation; there arises a definite proposition on the part of the government. From this moment, the public’s right to information attaches, and any citizen can access all the non- proprietary information leading to such proposition. Congress has also prescribed other limitations on the right to information in several legislations. In Chavez vs PCGG, it was held that it is incumbent upon the PCGG, and its officers, as well as other government representatives, to disclose sufficient public information on any proposed settlement they have decided to take up with the ostensible owners and holders of ill-gotten wealth. Such information though must pertain to definite propositions of the government, not necessarily to intra-agency or inter-agency recommendations or communications during the stage when common assertions are still in the process of being formulated or are in the “exploratory stage”. Right to Information Relative to Diplomatic Negotiations In PMPF v. Manglapus, the therein petitioners were seeking information from the President’s representatives on the state of the then on- going negotiations of the RP-US Military Bases Agreement. The Court denied the petition, stressing that “secrecy of negotiations with foreign countries is not violative of the constitutional provisions of freedom of speech or of the press nor of the freedom of access to information.” The Resolution went on to state, thus: The nature of diplomacy requires centralization of authority and expedition of decision which are inherent in executive action. Another essential characteristic of diplomacy is its confidential nature. In Akbayan vs Aquino, it was held that The privileged character of diplomatic negotiations has been recognized in this jurisdiction. In discussing valid limitations on the right to information, the Court in Chavez v. PCGG held that “information on inter-government exchanges prior to the conclusion of treaties and executive agreements may be subject to reasonable safeguards for the sake of national interest. Applying the principles adopted in PMPF v. Manglapus, it is clear that while the final text of the JPEPA may not be kept perpetually confidential – since there should be “ample opportunity for discussion before [a treaty] is approved” – the offers exchanged by the parties during the negotiations continue to be privileged even after the JPEPA is published. It is reasonable to conclude that the Japanese representatives submitted their offers with the understanding that “historic confidentiality” would govern the same. Disclosing these offers could impair the ability of the Philippines to deal not only with Japan but with other foreign governments in future negotiations. 11. RIGHT OF ASSOCIATION O Meaning of the provision: All it means is that the right to form associations shall not be impaired without due process of law. It includes the right not to join. (p. 97 Bernas)  Scope: The right to form, or join, unions or associations, includes the right not to join or, if one is already a member, to disaffiliate from the association. (p. 169 Nachura). Right not absolute however. 1. In Occena vs COMELEC, it was held that the right was not violated when political parties were prohibited from participating the barangay elections in order to insure the partisanship of political candidates; political neutrality is needed to discharge the duties of barangay officials. 2. In Victoriano vs Elialde Rope, SC upheld the validity of RA 3350, allowing workers to dissociate from or not to join a labor union despite a closed shop agreement, if they are members of any religious sect which prohibits such affiliation. 3. Art 245 of the Labor Code. 4. Compulsory membership of lawyers in the IBP held in In Re: Edillon. 5. Anti Subversion Act The right to unionize or to form organizations is now explicitly recognized and granted to employees in both governmental and the private. Art III; Article XIII, Sec 3 Constitution. As to strike, involving government employees, one has to determine whether the government corporation was established under the Corporation Code or an original charter. In the absence of a statute, public employees do not have the right to engage in concerted work stoppages for any purpose. (GSIS vs KMG GR 170132) Government employees may, therefore, through their unions or associations, either petition the Congress for the betterment of the terms and conditions of employment which are within the ambit of legislation or negotiate with the appropriate government agencies for the improvement of those which are not fixed by law. If there be any unresolved grievances, the dispute may be referred to the Public Sector Labor—Mgt Council for appropriate action. (SSSEA vs CA GR 85279)  12. EMINENT DOMAIN O a) Concept - Discussed b) Expansive Concept of Public Use - Discussed c) JC - Discussed 1) Determination - Discussed 2) Effect of Delay – Please refer to previous discussions as well As to interest: Nepomuceno vs Surigao held that once the value of the property is fixed by the court, the amount shall earn interest at the legal rate until full payment is effected. NAPOCOR vs Angas (208 SCRA 542) held that interest must be fixed at 6% pa as prescribed by Art 2209 CC as the kind of interest here is by way of damages. Title to property Title does not pass until after payment of JC. Thus, the owner of land subject to expropriation may still dispose of the same before payment of JC. (LBP vs CA 258 SCRA 404) Exception herein is in case of agrarian reform in the case of Land Bank vs CA (258 SCRA 404) d) Abandonment of intended Use and Right of Repurchase - Please refer to previous discussions as well Heirs of Moreno vs Mactan- Cebu International Airport (Prop devoted to pvt use) xxx however, if the condemning authority ceases to use the property to a public purpose, property reverts to the owner in fee simple. The government’s taking of private property, and then transferring it to private persons under the guise of public purpose is the despotism found in the immense power of ED. Xxx Right to repurchase or re-acquire the property The property owner’s right to repurchase the property depends upon the character of the title acquired by the expropriator, ie if land is expropriated for a particular purpose with the condition that when that purpose is ended or abandoned, the property shall revert to the former owner then the former owner can reacquire the property. (MCIAA vs CA GR 139495) e) Miscellaneous Application 13. CONTRACT CLAUSE As to intrusions by private persons into contractual obligations, the Court has said that this is governed by statutory enactments not by the impairment clause of the Constitution. The sole purpose of this provision is to safeguard the integrity of valid contractual agreements against unwarranted interference by the State in the form of laws. (New Sampaguita vs PNB 435 SCRA 565) We all know that contracts must yield to the State’s exercise of power. However, one has to know whether the State’s exercise of PP is valid. Contemporary Application of the Contract Clause In the case of CBC vs ADB (GR 172192), it was held that the non- impairment clause is a limit on the exercise of legislative power and not of judicial or quasi-judicial power. Considerations which prevail over contracts: Demands of police power prevail over contracts. (p. 498 Suarez). However, some books also say that eminent domain and the State’s power of taxation also does. 14. LEGAL ASSISTANCE AND FREE ACCESS TO COURTS The right to litigate is an escape valve to relieve the pressures of personal disagreements that might otherwise explode into physical confrontation. (Que vs CA 169 SCRA 137) While authorities are not required to relieve the accused of his poverty, they have the obligation not to take advantage of indigence in the administration of justice. (Miranda vs Arizona 384 US 436.) Even in case, xxx, where the accused had signified his intent to withdraw his appeal, the court is required to inquire into the reason for the withdrawal. Where it finds the sole reason for the withdrawal to be poverty, as in this case, the court must assign a counsel de officio, for despite such withdrawal, the duty to protect the rights of the accused subsists and perhaps with greater reason. (People vs Rio 201 SCRA 702) Indigent party – 1997 Rules of CivPro Sec 21 Rule 3. Indigence include an exemption from payment of docket and other lawful fees and of transcripts of steno notes which the court may order to be furnished him. The amount of the docket and other lawful fees which the indigent was exempted from paying shall be a lien on any judgment rendered in the case favorable to the indigent, unless the court otherwise provides. (Duka p. 257) Read RA 9406 – PAO It must be pointed out that not simply because there is a guarantee of free access to the courts that Philippine Courts could and should always assume