section IV and V

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CITIZENSHIP AND SUFFRAGE

This paper explains briefly Article IV (Citizenship) and Article V (Suffrage) of the 1987 Philippine

Constitution.

At the end the discussion, the students are expected to:

1. Explain the meaning and requirements of Philippine citizenship;

2. Discuss and distinguish the different principles and concepts involving citizenship;

3. Explain the meaning and requirements of suffrage; and

4. Discuss the various related concepts and principles in suffrage.

PRELIMINARIES

Need for Citizenship Education

1. Citizenship education, which is the primary purpose of studying Philippine politics and

governance, entails knowing the basic rights as well as the corresponding duties of the citizens.

Section 3 (2), Article XIV provides that all educational institutions “shall inculcate patriotism and

nationalism, foster love of humanity, respect for human rights, appreciation of the role of national

heroes in the historical development of the country, teach the rights and duties of citizenship,

strengthen ethical and spiritual values, develop moral character and personal discipline, encourage

critical and creative thinking, broaden scientific and technological knowledge, and promote

vocational efficiency.”

2. It must also be noted that one of the State Policies of the Philippines is the rearing of the youth for

civic efficiency. Section 13, Article II provides that “the State recognizes the vital role of the youth innation-building and shall promote and protect their physical, moral, spiritual, intellectual, and social

well-being. It shall inculcate in the youth patriotism and nationalism, and encourage their

involvement in public and civic affairs.” This is also why, under Section 12, Article II, the State

supports the parents in their primary right and duty in rearing the youth for civic efficiency and

development of moral character.

3. Before delving on the rights and duties of the citizens, it is logically important to know first who

are the citizens of the Philippines, the modes of acquiring citizenship, the types of citizens, and

difference between a citizen and a non-citizen as to possession of rights, privileges, and duties.

Knowing these concepts will preparatory for the discussion of suffrage, which is one of the rights and

duties of a citizen, and the bill of rights, which is the declaration and enumeration of the rights

individuals as will be discussed in Chapter 9.

Constitutional Provisions on Citizenship and Suffrage

Article IV of the 1987 Constitution discusses Citizenship. Article V discusses Suffrage. These

provisions will be explained in detail in the following subtopics.


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CITIZENSHIP

Meaning of Citizenship

Citizenship refers to the membership of a person to a democratic state which bestows upon him/her

full civil and political rights (unless especially disqualified by law), and the corresponding duty to

support and maintain allegiance to the state. Such membership underscores the symbioticrelationship of the state, which on the one hand gives protection to the citizen, and the citizen, who

on the other hand is duty bound to support the state.

Citizens of the Philippines

1. Classification. There are four instances enumerated in the Constitution as to who are considered

citizens of the Philippines. Section 1, Article IV of the Constitution, provides:

“The following are citizens of the Philippines:

(1) Those who are citizens of the Philippines at the time of the adoption of this Constitution;

(2) Those whose fathers or mothers are citizens of the Philippines;

(3) Those born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship upon

reaching the age of majority; and

(4) Those who are naturalized in accordance with law.”

First, those who are citizens of the Philippines at the time of the adoption of the 1987 Constitution,

referring to those who were already Filipinos under the 1973 Constitution and were still citizens at

the time of the passage of the 1987 Constitution. Second, those who are Philippine citizens because

either their fathers “or” mothers are Philippine citizens. Third, those whose fathers are foreigners,

and then later elected their Philippine citizenship upon reaching 18 years old in accordance with

1935 Constitution which was in effect at the time of their birth. And fourth, those who are naturalized

under the procedures provided by law.

2. Natural Born and Naturalized Citizens. Basically, there are only two categories of Philippine

citizens: the natural born and the naturalized. On the one hand, a natural born citizen is someone

who is already a Filipino at the time of his birth and does not have to do anything to acquire or

perfect his citizenship (Sec. 2, Art. II). In other words, he is a Filipino by birth. On the other hand, a

naturalized citizen is someone who was once a foreigner then later on became a Filipino by legal

fiction. Paragraph 2 (Either father or mother is a Filipino) and paragraph 3 (Elect Philippine

Citizenship) of the above provision are natural born citizens, while paragraph 4 (naturalized under

the law) refers to the naturalized citizen. Paragraph 1 (citizen at the time of the adoption of the

Constitution) may refer to either a natural born or naturalized citizen depending on the kind of

citizenship he has at the time of the adoption of the 1987 Constitution.3. Principles Determining Citizenship. How can birth determine citizenship in the case of natural

born citizens? There are two principles that could answer this. First is the jus sanguinis principle,

which states that “blood relations” determine citizenship, and the second is the jus soli or jus loci

principle, which states that the “place of birth” determines citizenship. The Philippines adopts the jus

sanguinis principle and is now the underlying theory behind Article IV. Thus, someone becomes a

Filipino by birth if either his mother “or” father is a Filipino, so that by virtue of his blood relations to


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either his Filipino parents he is also a Filipino. If Pedro, for example, has a Filipino mother and a

foreigner father, then he is still a Filipino by birth, and therefore a natural born citizen.

4. Old Rule. It must be noted that the present rule is different from that in the 1935 Constitution.

Under the old rule, those whose fathers are foreigners and whose mothers are citizens of the

Philippines must still elect their Philippine citizenship upon reaching 18 years old. In other words,citizenship depends upon blood relations with the father. This was no longer the rule under the 1973

Constitution and under the present Constitution. Citizenship is now attributable to both the father

and mother. But for those who were born during the effectivity of the 1935 Constitution, or before

January 17, 1973 (the date of promulgation of the 1973 Constitution), they must still elect their

Philippine citizenship upon reaching the age of majority. For instance, if Pedro was born in January

1, 1970, of a Chinese father and a Filipino mother, then in 1988 when he is already 18 years old, he

must elect his Philippine citizenship. Under Section 2, Article II, those who elect their Philippine

citizenship are still deemed natural born citizens.

Naturalized Citizens

1. Who are Naturalized Citizens? Naturalized citizens those are clothed by law with the rights and

privileges accorded to a citizen of the Philippines, as well as bound by their duties to the State. In

other words, they are also Filipinos. Thus they can vote during elections, acquire real property, and

engage in business, among others. They must likewise observe loyalty to the Philippines, pay their

taxes, and obey the laws and duly constituted authorities of the land. However, they cannot be

elected President or Vice-President, or member of the Congress, or appointed justice of the Supreme

Court or lower collegiate courts, or member of any of the Constitutional Commissions, or

Ombudsman or his Deputy, or member of the Central Monetary Agency. These are among the

restrictions to a naturalized citizen which are reserved only to a natural born citizen, who is by birth

and heart a Filipino.

2. Naturalization entails renunciation of former allegiance and the subsequent act of formal entrance

into a new body politic. The grant of citizenship by naturalization is an act of grace on the part of the

State. Just as the State can confer or grant citizenship, it can also withhold or take away the same.

Thus, aliens or foreigners do not have a natural or inherent right to demand membership to the

State.

3. Kinds of Naturalization. The government, through its three branches, can confer citizenship by

naturalization. Hence, a foreigner can be naturalized in either of three ways:

(a) Judicial naturalization refers to naturalization by means of court judgment pursuant to the

“Revised Naturalization Act.” Applications are filed with the proper Regional Trial Court which w illrender the decree of naturalization;

(b) Legislative naturalization refers to naturalization by means of a direct act of Congress, that is, by

the enactment of a law by the Congress declaring therein that a foreigner is conferred citizenship and

admitted into the political community; and

(c) Administrative naturalization is naturalization by means of administrative proceedings before the

Special Committee on Naturalization pursuant to the “Administrative Naturalization Law of 2000.”


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Applicants must be aliens born and residing in the Philippines with all of the qualifications and none

of the disqualifications provided by law.

Lost and Reacquisition of Citizenship

1. Lost of Citizenship. Section 3, Article 4 of the Constitution states that “Philippine citizenship may

be lost or reacquired in the manner provided by law.” There are two laws which provide the mannerof loss of citizenship. First is “Commonwealth Act No. 63” which provides that citizenship is lost by

naturalization in another country, by express renunciation of citizenship, by subscribing to an oath of

allegiance to support the constitution and laws of another country, by rendering service to a foreign

armed forces, and by deserting the armed forces of the Philippines. Second is Commonwealth Act

No. 473 which states that citizenship is lost by cancellation of certificate of naturalization by court, by

permanent residence in the country of origin for a period of five years from the time of

naturalization, by an invalid declaration of intent in the petition, by failure to with the educational

requirements of the minor children, and by allowing oneself to used by a foreigner.

2. Reacquisition of Citizenship. As far as reacquisition of citizenship is concerned, Commonwealth

Act No. 63 also provides that citizenship which was lost may be reacquired by naturalization, by a

direct act of Congress, or by repatriation.

(a) Naturalization may be applied for by a former Philippine citizen who lost his citizenship under

any of the aforesaid ways. For example, Pedro was a Filipino who became a naturalized citizen in

another country, and as a result he lost his Philippine citizenship. If he applies for naturalization and

later on the court gave him a decree of naturalization, then he reacquires his Philippine citizenship.

(b) The Congress can also reinstitute, by means of a law, citizenship to those who lost it.

(c) Repatriation is accomplished by taking the necessary oath of allegiance to the Republic of the

Philippines and then registering the same in the proper Civil Registry and in the Bureau of

Immigration. This is available to women who have lost their citizenship through marriage to aliens,

those who lost their citizenship on account of economic and political necessity not otherwise

disqualified by law, and deserters of the Armed Forces of the Philippines.

3. R.A. No. 9225. Special note must be given to Republic Act No. 9225, otherwise known as

“Citizenship Retention and Reacquisition Act of 2003,”which amended Commonwealth Act No. 63.

It provides that natural born citizens of the Philippines who lost their citizenship because of

naturalization in a foreign country shall be deemed to have reacquired their Philippine citizenship

upon taking the oath of allegiance to the Republic of the Philippines. After the effectivity of RA 9225,

those who are naturalized in a foreign country shall retain their Philippine citizenship also upon

taking the oath of allegiance to the Republic of the Philippines. Thus, under the present law, it is thetaking of the necessary oath of allegiance and registration of the same that retains and reacquires

Philippine citizenship.

4. Marriage to an Alien. Under Section 4, Article IV, mere marriage to an alien is not a ground for

losing Philippine citizenship, unless there is implied or express renunciation through acts or

omissions. For example, if Maria is married to Friedrich, a foreigner, and in Friedrich’s country his

marriage confers on Maria their citizenship, then Maria will not automatically lose her citizenship as


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provided by the Constitution. What she has is dual citizenship. But if Maria subscribes to an oath of

allegiance to her husband’s country, then her act is deemed a renunciation of her Philippine

citizenship, thus, a ground for losing her citizenship.

Dual Allegiance and Dual Citizenship

1. Dual Allegiance as Provided in the Constitution. Section 5, Article IV states, “Dual allegiance ofcitizens is inimical to the national interest and shall be dealt with by law.” Dual allegiance happens

when a naturalized citizen of the Philippines maintains his allegiance to his country of origin. For

example, if Joe, who was a foreigner, becomes a naturalized citizen of the Philippines, and after

naturalization he still maintains his allegiance to his mother country, then his case is said to be one

of dual allegiance. This is prohibited by the Constitution to prevent a former foreigner, who gained

political membership, to have false allegiance or pretend loyalty to the Philippines.

2. Dual Allegiance vs. Dual Citizenship. The Constitution, however, does not prohibit dual

citizenship. Dual allegiance is different from dual citizenship. Dual citizenship happens when an

individual is a citizen of two countries because the laws of both countries confer upon him

membership to their State. For example, if Pedro’s parents are Filipinos and he is born in United

State of America, he acquires Philippine citizenship under the principle of jus sanguinis and

American citizenship under the principle of jus soli. Thus, he has dual citizenship because of the

respective laws of the two countries. Another example is when a Filipino marries a foreigner and

thereby acquires the citizenship of the spouse, there is also dual citizenship. The Philippines cannot

prohibit dual citizenship because its laws cannot control the laws of other states. It is dual allegiance

that is prohibited because it is intentional while dual citizenship is generally unintentional, in that it

is only accidentally cause by birth in a foreign state or marriage with a foreigner.

3. Limitation on Dual Citizenship. Dual citizenship may be prohibited under special cases. For

instance, pursuant to the Constitution, RA 9225 requires that all those who are seeking elective

public offices in the Philippines to execute a personal and sworn renunciation of any and all foreign

citizenship to qualify them as candidates in the Philippine elections.

SUFFRAGE

Meaning of Suffrage

Suffrage is the right and obligation to vote. It is a political right conferred by the Constitution

empowering a citizen to participate in the process of government which makes the State truly

democratic and republican. Section 1, Article V, however, provides that “suffrage may be exercised…”

thus, making it non-mandatory. Failure to exercise such right is not punishable by law, but

nonetheless makes a citizen irresponsible. In other words, suffrage is an obligation but a non-

mandatory one.

When Suffrage may be Exercised

Suffrage is exercised not only during elections, but also during initiatives, referendums, plebiscite,

and recalls. Election is the means by which the people choose their representatives who are entrusted

the exercise of the powers of the government. Initiative is the means by which people directly


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propose and enact laws, that is, they initiate the law-making process. Referendum refers to process

by which the people ratify or reject a law or part thereof referred or submitted to them by the

national or local law-making body. Plebiscite entails a process by which the people either ratify or

reject an amendment or revision to the Constitution. And recall is a mode of removing an incumbent

official from office by a vote of the people upon proper registration of a petition signed by therequired number of qualified voters. In all these instances, a qualified citizen can rightfully exercise

suffrage.

Who may Exercise Suffrage

1. Qualified Citizens Only. Suffrage can be exercised only by a citizen of the Philippines, who has

none of the disqualifications, at least eighteen years of age on the day of the election, and a resident

of the Philippines for at least one year and of the place where he intends to vote for at least six

months immediately preceding the election (Section 1, Article V). Suffrage is an attribute of

citizenship, and therefore aliens cannot exercise the same.

2. Reason for Lowering the Voting Age. The voting age was lowered down from 21 to 18 years old to

broaden the electoral base. If the voting age is 21, then only a small percentage of the total

population of the Philippines can vote. Moreover, according to psychologists, 18 to 21 year-old

Filipino youth, living in urban or rural areas, have the same political maturity. This is affirmed in

many provisions of Philippine law, in that the marrying age, the age when someone can enter into a

contract, and the age when someone can be called to defend the State, is 18 years old. It must be

noted, however, “registration” may be done before reaching the age of majority for as long as the

voter is 18 years old on the day of the election.

3. Explanation of Residency Requirement. A citizen, in order to be qualified to vote, must have

resided in the Philippines for at least one year and for at least six months on the place where he

intends to vote immediately preceding the elections. The “one year residency requirement” means

“permanent residence” while the “six month residency requirement” means either “permanent or

temporary residence.” On the on hand, permanent residence or domicile requires bodily presence in

the locality, the intention to remain there (animus manendi), and an intention to return to it if one

goes somewhere else (animus revertendi). If a new residence is established, permanent residence

requires an intention not to return to the old domicile (animus non revertandi). For example, if a

Filipino citizen works abroad to look for greener pastures, but still has the “intention to return” to

the Philippines, he can still exercise his right to vote since his domicile is still in the Philippines. On

the other hand, temporary residence only requires the intention to reside in a fixed place. To be

familiar with the needs of the locality, a voter must reside therein for at least six months immediatelypreceding the elections. This is requirement for both national and local elections. In here, since

residence can also mean temporary residence, one can vote in either his locality of permanent

residence or locality of temporary residence during local or national elections. For example, Pedro is

domiciled in Tuguegarao City and is a registered voter therein. But he is working in Manila for more

than six months already, has established a temporary residence, and is likewise a registered voter

there. Under the law, he can vote in Tuguegarao city since he is a permanent resident of the place or


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in Manila since he has a temporary residence there.

4. No Additional Substantive Requirement. Still in keeping with the trend for broadening electoral

base, the Constitution does not provide for “literacy, property or other substantive requirements.”

Rather it encourages the “participation” and “equalization” of the privileges and rights of the people.

Being democratic and republican, the State endeavors for the establishment of a wide base ofelectoral involvement by the people, not only by the rich minority who joy the privilege of formal

education, but also by the poor majority who are usually unlettered because of poverty. It must also

be emphasize that there is no direct relationship between education or property, on the one hand,

and capacity for intelligent voting, on the other, in that even a rich and highly educated person may

initiate and be swayed by sham elections.

Absentee Voting

Because of the phenomenon of “Filipino labor explosion overseas,” the so-called “absentee voting

system” is mandated by the Constitution to be provided f or, or legislated, by the Congress. Section 2,

Article V states, “The Congress shall provide… a system for absentee voting by qualified Filipinos

abroad.” For as long as they are qualified, overseas Filipino workers can still participate in elections

despite their temporary absence in the Philippines. While residency is a voting requirement, it must

not be a reason for disenfranchising thousands of Filipinos abroad whose hearts are still with the

Philippines.

Importance of Suffrage

As a final note, the importance of suffrage cannot be overemphasized as it is the bed rock of

Philippine democracy and republicanism. Removed, then the Philippines is no longer democratic

and republican. This is why the Constitution mandates the Congress “to provide a system for

securing the secrecy and sanctity of the ballot.” The mandate becomes especially important now that

the electoral base is broadened to include the illiterate and the disabled who are the usual prey of

unscrupulous politicians. Thus, to secure the very essence of Philippine democracy and to protect the

illiterates and disabled from being disenfranchised, the Constitution also provides that “The

Congress shall also design a procedure for the disabled and the illiterates to vote without the

assistance of other persons. Until then, they shall be allowed to vote under existing laws and such

rules as the Commission on Elections may promulgate to protect the secrecy of the ballot.”


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Government Power vs. I ndivi dual F reedom

1. Among the changes brought about by the Period of Enlightenment was the shift of power from the

crown to the individual. The long reign of monarchs came to an end, and the rule of the people

became the standard. The government, while still the repository of power, was limited to its role as

the protector of the people and the guardian of rights. Liberalism, which took its cue from

individualism, advocated the principle of egalitarianism, in which men, regardless of their status in

life, are regarded as equals in terms of rights before the law. Modern democracies are founded on

these liberal ideals, in that the heart of democratic objectives is the protection of human dignity and

respect for human rights.

2. Nonetheless, the government remains to be a powerful institution, capable of summoning the

military, evoking its past image as the uncontestable holder of sovereignty. In fact, republicanism

essentially requires delegation of powers to the government; that although the people remain to be

the sovereign, actual exercise of it is given to the government. Protection and service of the people is

the primal duty of the government, but be that as it may, the government is still the single biggest

institution that exercises sovereign powers.

3. More so, it possesses the “inherent powers” which the Constitution itself does not confer. Every

government for it to exist exercises “police power,” “power of eminent domain,” and “power of

taxation.” A constitution does not grant such powers to the government; a constitution can only

define and delimit them and allocate their exercise among various government agencies.[1] These are

awesome powers, which, if left uncheck, may seriously restrict and jeopardize the freedom of

individuals. Thus, it is inbuilt in every democratic constitution to meticulously include provisions

guaranteeing the rights of the individuals and those restricting the powers of the government. This isto prevent the tragedy that the government created by the people will in turn be the instrument to

enslave and abuse them.

4. The Bill of Rights (Article III) is an indispensable part of the Constitution. In fact, it is one of the

most important parts of the fundamental law since it aims at balancing the power of the government

and the various freedoms of the individual. As will be seen below, the Bill of Rights provide for two

things: first, restrictions directed against the state, and, second, explicit identification and limitation

of rights of the individuals. On the one hand, the government exercises its tremendous powers, but

its powers are limited by the Constitution. On the other hand, the individuals are guaranteed of their

rights, but subject also to limitations in recognition of the powers of the government. What balances

the two (power and freedom) are the limitations provided by the Constitution, which limitations are

by nature compromises or solutions to situations resulting from the overlapping or conflict of the

two realms. For example, while the government has the inherent authority to take and convert a

property for public use, and the people on the other have the right to hold their private property, the

Constitution, contemplating a case of overlap or conflict between the two, compromises both by

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prescribing that the government gives just compensation to the private owner who in turn must

surrender his property.

Meaning of the Bill of Rights

1. From the foregoing, it is not difficult to understand that the Bill of Rights refers to the declaration and

enumeration of the fundamental civil and political rights of a person with the primary purpose of safeguarding

the person from violations by the government, as well as by individuals and group of individuals. It includes

the protection of the following rights:

(a) Civil rights or those rights belonging to individuals by virtue of their citizenship, such as freedom

to contract, right to property, and marriage among others;

(b) Political rights which are rights pertaining to the citizenship of the individual vis-à-vis the

administration of the government, such as right of suffrage right to hold office, and right to petition

for redress of wrong;

(c) Socio-economic rights or those which ensure the well-being and economic security of an individual;

and(d) Rights of the accused which refer to protections given to the person of an accused in any criminal

case.

2. It must be noted that the restriction provided in the Bill of Rights is directed against the

government, so that it does not govern private relations. As far as the Constitution is concerned,

Article III can be invoked only against the government. Nonetheless, with the inclusion of almost all

the constitutional rights in Article 32 of the Civil Code, the same may now be invoked in civil cases

involving relations between private persons. Thus, the definition above indicates that the bill of

rights is a safeguard not just against the abuses of the government but also of individuals or group of

individuals.

RIGHT TO DUE PROCESS AND EQUAL PROTECTION

L if e, Liberty, and Property

1. Constitutional Provision. Section 1, Article III of the Constitution states “No person shall be deprived

of life, liberty, or property without due process of law, nor shall any person be denied the equal

protection of the laws.” The provision speaks of “due process” and “equal protection.”

2. Scope of Protection. The protection covers all persons, whether citizens or aliens, natural or juridical.

3. Meaning of Life, Liberty, and Property. Due process and equal protection cover theright to life, liberty,

and property. It is important therefore to know the meaning of the three.

(a) Life. When the constitution speaks of right to life, it refers not just to physical safety but also to the

importance of quality of life. Thus, right to life means right to be alive, right to one’s limbs against

physical harm, and, equally important, right to a good quality of life.[2] Life means something more

than mere animal existence.[3]

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(b) Liberty. It includes “negative” and “positive” freedom. Negative freedom means freedom from, or

absence of, physical constraints, while positive freedom means freedom to exercise one’s faculties.

Right to liberty therefore includes the two aspects of freedom and it cannot be dwarfed into mere

freedom from physical restraint or servitude, but is deemed to embrace the right of man to enjoy his

God-given faculties in all lawful ways, to live and work where he will, to earn his livelihood by anylawful calling, to pursue any vocation, and enter into contracts.[4]

(c) Property. It refers either to the thing itself or right over the thing. As a thing, property is anything

capable of appropriation, and it could be personal or real. As a right, it refers to right to own, use,

possess, alienate, or destroy the thing. The constitution uses property in the sense of right, and as

such it includes, among others, right to work, one’s employment, profession, trade, and other vested

rights. It is important to note however that privileges like licenses are not protected property; but

they may evolve in a protected right if much is invested in them as means of livelihood. Public office

is not also a property; but to the extent that security of tenure cannot be compromised without due

process, it is in a limited sense analogous to property .[5]

5. These rights are intimately connected . For example, if one’s property right over employment is taken

away, the same will adversely affect one’s right to life since quality of living is jeopardized.

Consequently, in the absence of property and a good quality of life, the ability to do what one wants is

impeded.

6. Hierarchy of Rights. While the rights are intimately related, they have a hierarchy. As to their order

of importance, right to life comes first, followed by right to liberty, and then right of property.

Due Process

1. Meaning . Due process of law is a constitutional guarantee against hasty and unsupported

deprivation of some person’s life, liberty, or property by the government. While is it true that the

state can deprive its citizens of their life, liberty, or property, it must do so in observance of due

process of law. This right is “the embodiment of the supporting idea of fair play”[6] and its essence is

that it is “a law which hears before it condemns, which proceeds upon inquiry and renders judgment

only after trial.”[7]

2. When Invoked . The right is invoked when the act of the government is arbitrary, oppressive,

whimsical, or unreasonable. It is particularly directed against the acts of executive and legislative

department.

3. Two Aspects of Due Process. Due process of law has two aspects: procedural and substantive. Basically,

the procedural aspect involves the method or manner by which the law is enforced, while the

substantive aspect involves the law itself which must be fair, reasonable, and just.4. Procedural due process requires, essentially, the opportunity to be heard in which every citizen is

given the chance to defend himself or explain his side through the protection of general rules of

procedure. It contemplates notice and opportunity to be heard before judgment is rendered.

In judicial proceedings, the requirements of procedural due process are:[8]

(a) An impartial or objective court or tribunal with jurisdiction over the subject matter;

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(b) Court with jurisdiction over the person of the defendant or the property which is the subject of

the proceeding;

(c) Defendant given the opportunity to be heard (requirement on notice and hearing); and

(d) Judgment rendered after lawful hearing.

Since some cases are decided by administrative bodies, the Court also provides requirements of

procedural due process in administrative proceedings. These requirements, also known as “seven

cardinal primary rights,” are:[9]

(a) The right to a hearing, where a party may present evidence in support of his case;

(b) The tribunal must consider the evidence presented;

(c) The decision of the tribunal must be supported by evidence;

(d) The evidence must be substantial. Substantial evidence is such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion;

(e) The evidence must have been presented at the hearing, or at least contained in the record and

known to the parties affected;

(f) The tribunal or body or any of its judges must rely on its own independent

consideration of evidence, and not rely on the recommendation of a subordinate; and

(g) The decision must state the facts and the law in such a way that the parties are apprised of the

issues involved and the reasons for the decision.

5. Notice and Opportunity to be Heard . What matters in procedural due process arenotice and

an opportunity to be heard .

(a) Notice. This is an essential element of procedural due process, most especially in judicial

proceedings, because without notice the court will not acquire jurisdiction and its judgment will not

bind the defendant. The purpose of the notice is to inform the defendant of the nature and character

of the case filed against him, and more importantly, to give him a fair opportunity to prepare his

defense. Nevertheless, the notice is useless without the opportunity to be heard.

(b) Opportunity to be Heard . It must be emphasized that what is required is not “actual” hearing but a

real “opportunity” to be heard.[10] If, for instance, a person fails to actually appear in a hearing eventhough he was given the chance to do so, a decision rendered by the court is not in violation of due

process. Moreover, strict observance of the rule is not necessary, especially in administrative cases.

In fact, in administrative proceedings, notice and hearing may be dispensed with for public need or

for practical reasons. It is also sufficient that subsequent hearing is held if the same was not

previously satisfied.



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6. Substantive due process requires that the law itself is valid, fair, reasonable, and just. For the law to

be fair and reasonable it must have a valid objective which is pursued in a lawful manner. The

objective of the government is valid when it pertains to the interest of the general public, as

distinguished from those of a particular class. The manner of pursuing the objective is lawful if the

means employed are reasonably necessary and not unduly oppressive.7. Under the doctrine of void for vagueness, a statute or law that is vague is void because it violates the

rights to due process. A statute is vague when it lacks comprehensible standards which men of

ordinary intelligence must necessarily know as to its common meaning but differ as to its

application. Such kind of statute is opposed to the Constitution because it fails to accord persons

proper understanding or fair notice, and because the government is given unbridled freedom to carry

out its provision. For this doctrine to be operative, however, the statute must be utterly vague. Thus,

if a law, for example, could be interpreted and applied in various ways, it is void because of

vagueness. Corollary to this is the doctrine of overbreadth which states that a statute that is “overly

broad” is void. This is because it prevents a person from exercising his constitutional rights, as it fails

to give an adequate warning or boundary between what is constitutionally permissive and not. If a

law, for instance, prohibits a bystander from doing any “annoying act” to passersby, the law is void

because “annoying act” could mean anything to a passerby and as such, overly broad.

Equal Protection

1. Meaning . The guarantee of equal protection means that “no person or class of persons shall be

deprived of the same protection of the laws which is enjoyed by other persons or other classes in the

same place and in like circumstances.”[11] It means that “all persons or things similarly situated

should be treated alike, both as to rights conferred and responsibilities imposed.” The guarantee

does not provide absolute equality of rights or indiscriminate operation on persons. Persons or

things that are differently situated may thus be treated differently. Equality only applies among

equals. What is prohibited by the guarantee is the discriminatory legislation which treats differently

or favors others when both are similarly situated.

2. Purpose. The purpose of the guarantee is to prohibit hostile discrimination or undue favor to

anyone, or giving special privilege when it is not reasonable or justified.

3. Reasonable Classification. Well established is the rule that reasonable classificationdoes not violate

the guarantee, provided that the classification has the following requisites:[12]

(a) It must be based upon substantial distinctions;

(b) It must be germane to the purpose of the law;

(c) It must not be limited to existing conditions only; and

(d) It must apply equally to all members of the class.

4. Example. In one case,[13] Section 66 of the Omnibus Election Code was challenged for being

unconstitutional, as it is violative of the equal protection clause. The provision distinguishes between

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an elective official and an appointive official in the filing of theire certificate of candidacy. While

elective officials are not deemed resigned upon the filing their certificates, appointive officials are.

The Supreme Court held that the law is constitutional and not violative of equal protection since the

classification is valid. The Court argues that elective office is different from appointive office, in that

the mandate of the former is from the people, while that of the latter is from the appointingauthority. The term of the elective officials are likewise longer than that of the appointive officials.

Thus, the classification is adjudged reasonable and valid.

5. Discrimination against Aliens. Although the protection extends to both citizens and aliens,

discrimination against aliens may be held valid under certain circumstances. For example, citizens

by virtue of their membership to the political community possess complete civil and political rights,

while aliens do not have complete political rights. The former can vote during elections, run for

public office, own real property, while aliens cannot.

6. Review of Laws. If the laws are scrutinized by the court, it said to be subject to “judicial review.”

There are three standards followed by the court in judicial review, these are:

(a) Deferential review in which laws are upheld to be valid or consistent to the guarantee of equal

protection when they are rational and the classifications therein bear a relation to a legitimate

governmental interests or purpose. In here the courts do not seriously inquire into the substantiality

of the interest and possibility of alternative means to achieve the objectives;

(b) Intermediate review in which the substantiality of the governmental interest is closely scrutinized

as well as the availability of less restrictive means or alternatives. This standard is used if the

classification involves important but not fundamental interests; and

(c) Strict scrutiny in which the government is required to show the presence of a compelling

government interest, rather than a mere substantial interest, and the absence of a less restrictive

means for achieving the interest. Upon showing of these requirements, the limitation of a

fundamental constitutional right is justified. This standard is used if the law classifies persons and

limits others of their exercise of fundamental rights.

ARRESTS, SEARCHES AND SEIZURES

Right against Unreasonable Searches and Seizures

1. Constitutional Provision. Section 2, Article III states that people have the inviolable right to be

secure in their persons, houses, papers, and effects against unreasonable searches and seizures of

whatever nature and for any purpose, and a search warrant or warrant of arrest can only be issued

upon showing of a probable cause determined personally by the judge after examination under oath

or affirmation of the complainant and the witnesses he may produce, and particularly describing theplace to be searched and the persons or things to be seized.

2. Scope. The protection extends to all persons, aliens or citizens, natural or juridical. It is a personal

right which may be invoked or waived by the person directly affected[14]against unreasonable arrests

or searches by the government and its agencies. It cannot, however, be invoked against private

individuals.

Warr ant of Ar rest and Search Warrant

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1. Generally, the right against unreasonable searches and seizures requires that before a person is

arrested or a personal property seized, it must be supported by a valid warrant of arrest or a search

warrant. The exceptions are in cases of valid warrantless arrests and searches.

2. A warrant of arrest is a written order of the court, issued in the name of the Philippines, authorizing

a peace officer to arrest a person, and put him under the custody of the court.

3. A search warrant is a written order of the court, authorizing or directing a peace officer to search a

specific location, house, or other premises for a personal property allegedly used in a crime or may be

utilized as a tool to prove a crime.

Requisites of a Vali d Warr ant

1. Since as a general rule, an arrest or search is reasonable when it is covered by a valid warrant, it is

thus important to know the requisites a valid warrant . The Court enumerates the requisites as follows:

(a) It must be based upon a probable cause. Probable cause refers to such facts and circumstances

which would lead a reasonably discreet and prudent man to believe that an offense has been

committed and that the objects sought in connect with the offense are in the place sought to besearched;

(b) The probable cause must be determined personally by the judge. That the judge “personally”

determines the probable cause means that “he personally evaluates the report and the supporting

documents submitted by the public prosecutor regarding the existence of the probable cause,” or, if

the same is insufficient, “require additional evidence to aid him in arriving at a conclusion as to the

existence of probable cause.”[15]Thus, personal determination does not mean that he must

personally examine the complainant and his witnesses.[16] He may rely on reports and evidence

submitted to him, on the basis of which he determines the existence of probable cause and orders the

issuance of warrant. What is prohibited is to rely solely on the recommendation of the prosecutors without doing any determination on his own;

(c) The determination must be made after examination under oath or affirmation of the complainant

and the witness he may produce; and

(d) It must particularly describe the place to be searched and the persons or things to be seized. The

property subject to search includes those used in the commission of the offense, stolen or embezzled

and other proceeds or fruits of the offense, or used or intended to be used in the commission of the

offense.

2. General warrants are those that do not particularly describe the place to be searched or the persons

or things to be seized. They are unconstitutional because the sanctity of the domicile and privacy of

communication and correspondence of individuals are placed at the mercy, caprice, and passion of

peace officers.[17]

Warr antless Ar rest

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1. When Warrantless Arrest Valid . Arrest without warrant is strictly construed as an exception to the

general rule requiring warrant. Under the Rules of Court,[18] a peace officer or a private person may

arrest a person even without a warrant under the following instances:

(a) In flagrante delicto arrest . When, in his presence, the person to be arrested has committed, is

actually committing, or is attempting to commit an offense;(b) Hot pursuit . When an offense, has in fact just been committed, and he has personal knowledge of

facts indicating that the person to be arrested has committed it; and

(c) Arrest of escaped prisoners. When the person to be arrested is a prisoner who has escaped from a

penal establishment of place where he is serving final judgment or temporarily confined while his

case is pending, or has escaped while being transferred from one confinement to another.

2. Citizen Arrest . It must be noted that a lawful warrantless arrest may be performed not just by a

peace officer but also by a civilian. This is permitted under the rules under limited circumstances,

and it is called citizen arrest .

3. In the case of flagrante delicto arrest , an offense is committed “in the presence” of the arresting

officer or civilian. For example, if a person pushes illegal drugs in the presence of a police officer, the

latter can arrest the pusher even without a warrant of arrest because an offense is actually being

committed in his presence. The same principle underlies the “buy - bust” or “entrapment” operations

conducted by police officers in catching law offenders. In one case,[19] the Court held that rebellion

is a continuing offense, and so the rebel may be arrested anytime even without a warrant because he

is deemed to commit the offense in the presence of the arresting officer or person.

4. Illegal Detention is the offense committed by the arresting officer or civilian if the warrantless arrest

is performed outside the above rules.

Warrantless Searches

A search is valid even without a warrant, under the following instances:

(a) Search as an incident to a lawful arrest . When a valid arrest precedes the search or

contemporaneous with it, and the search is limited to the immediate vicinity of the place of arrest,

for purposes of securing dangerous objects and effects of the crime;

(b) Consented search. When the right has been voluntarily waived by person who has a right, aware of

such right, and has an actual intention to relinquish such right;

(c) Plainview search. When prohibited articles are within the sight of an officer who has the right to be

in a position to that view;

(d) Visual search at checkpoints. When the search at stationary checkpoints is pre-announced, and

limited to a visual search only;

(e) Terry search. When a police officer, in interest of effective crime prevention, performs a “stop-and-

frisk” or patting of outer clothing for dangerous weapons, after observing a suspicious conduct on the

part of a citizen;

(f) Search of moving vehicles, vessels, and aircrafts for violation of laws;



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(g) Inspection of buildings and other premises for the enforcement of fire, sanitary, and building

regulations; and

(h) Search in airports and other populous places.

Administrative Searches and Ar rests

1. In cases of deportation, where the State expels an undesirable alien from its territory, courtintervention and proceedings are not required. Nonetheless, the alien’s constitutional rights are still

preserved because they are given fair trial and administrative due process.

2. Important to note is that no probable cause is required in deportation proceedings.[20] It is the

Commissioner of Immigration or any officer designated by him, not the judge, who issues the

administrative warrant, after determination by the Board of Commissioners of the existence of a

ground for deportation.

RIGHT TO PRIVACY

Provisions and Laws on Right to Pri vacy

1. Constitutional Provisions. The right to privacy is scattered throughout the Bill of Rights.[21] The

right against unreasonable searches and seizures, in Section 2, is an expression of this right,

inasmuch as it is based on the sacred right to be secure in the privacy of one’s person, house, paper,

and effects. Due process of law, in Section 1, also provides the same privacy security by protecting an

individual’s life, liberty, and property against undue interference by the government. Section 6

speaks of the right to establish and change one’s home which likewise deals with the privacy and

comfort of one’s home. The right to form unions or associations under Section 8, and the right

against self-incrimination under Section 17 are also privacy rights which need protection against

undue intrusion by the government.

2. Nonetheless, the word “privacy” is expressly provided in Section 3(1), Article III, which states that“the privacy of communication and correspondence shall be inviolable except upon lawful order of

the court, or when public safety or order requires otherwise, as prescribed by law.” Privacy of

communication and correspondence is also an expression of the right to privacy.

3. Statutory Reinforcements. To reinforce these constitutional provisions, the Congress has passed laws

that recognize and protect the zones of privacy of an individual. These laws include: (a) The Civil

Code of the Philippines; (b) The Revised Penal Code; (c) Anti-Wire Tapping Act; (d) The Secrecy of

Bank Deposits; and (e) Intellectual Property Code.

Pri vacy of Communication and Corr espondence

1. Subject of the Right . Invasion of communication and correspondence is one kind ofsearch.[22] However the subject of search is not a tangible object but an intangible one, such as

telephone calls, text messages, letters, and the like. These forms of communication and

correspondence may be intruded into by means of wiretapping or other means of electronic

eavesdropping. What the constitution prohibits is government intrusion, by means of wiretapping or

electronic eavesdropping, into the privacy of communication without a lawful court order or when

public safety and order does not demand.

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2. Rule. As a rule, the government cannot intrude into the privacy of communication and

correspondence. The exceptions are: (a) when the court allows the intrusion, and (b) when public

safety and order so demands.

Anti-Wi re Tapping Act

1. R.A. 4200 or the Anti-Wire Tapping Act, as a reinforcement of privacy of communication, is a law

which prohibits a person not authorized by all the parties to any private communication, to wire tap

or use any devise to secretly overhear, intercept, record, or communicate the content of the said

communication to any person.

2. Wire tapping or the use of record may be permitted in civil or criminal proceedings involving

specified offenses principally affecting national security, and only with previous authorization by the

court which must comply with the requirements of a warrant. The authority is effective only for sixty

days.

Writ of Habeas Data

The writ of habeas data is a remedy available to any person whose right to privacy in life, liberty, or

security is violated or threatened to be violated by an unlawful act or omission of a public official or

employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or

information regarding the person, family, home, and correspondence of the aggrieved party.

Exclusionary Rule

1. The exclusionary rule states that any evidence unlawfully obtained is inadmissible as evidence

before the courts. This is based on Section 3(2), Article III which provides that any evidence obtained

in violation of right to privacy of communication or right to due process of law shall be inadmissiblefor any purpose in any proceeding. The same rule is applied to any evidence taken in violate of R.A.

4200.

2. The rule is also called Fruit of the Poisonous Tree Doctrine. The name of the doctrine metaphorically

describes what happens to an “evidence” (fruit) taken through “unlawful means” (poisonous tree).

The evidence-fruit is discarded because it may infect or destroy the integrity of the case and forfeit

the purpose of the law.

3. For example, if police officers search a house without a search warrant and the same does not fall

under any of the instances of a valid warrantless search, the evidence obtained even if material in the

case cannot be admitted in court. Or if police officers wiretap a conversation without court

authorization, the recorded conversation shall be excluded as an evidence in court. Thus, the

evidences are said to be fruits of a poisonous tree.

FREEDOM OF EXPRESSION

Meaning and Scope


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1. Constitutional Provision. Section 4, Article III provides that “no law shall be passed abridging the

freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and

petition the government for redress of grievances.” The right underscores tolerance to different views

and thoughts.

2. Aspects of the Right . Freedom of expression has four aspects, to wit: (a) freedom of speech; (b)freedom of expression; (c) freedom of the press; and (d) freedom of assembly. Nonetheless, the scope

of the protection extends to right to form associations or societies not contrary to law, right to access

to information on matters of public concern, and freedom of religion. These are all crucial to the

advancement of beliefs and ideas and the establishment of an “uninhibited, robust and wide-open

debate in the free market of ideas.”[23]

3. Importance of the Right . Freedom of expression is accorded the highest protection in the Bill of

Rights since it is indispensable to the preservation of liberty and democracy. Thus, religious,

political, academic, artistic, and commercial speeches are protected by the constitutional guarantee.

4. Limitation. The right is not absolute. It must be exercised within the bounds of law, morals, public

policy and public order, and with due regard for others’ rights. Thus, obscene, libelous, and

slanderous speeches are not protected by the guarantee. So are seditious and fighting words that

advocate imminent lawless conduct.

Freedom from Prior Restraint and Subsequent Puni shment

1. Freedom of speech and of the press has two aspects: (a) freedom from prior restraint, and (b)

freedom from subsequent punishment.

2. On the one hand, freedom from prior restraint means freedom from censorship or governmental

screening of what is politically, morally, socially, and artistically correct. In here, persons and the

media are freed from total suppression or restriction by the government of what could be

disseminated, and prevents the government from being a subjective arbiter of what is acceptable and

not. Although the system of prior restraint is presumed unconstitutional, it is allowed under the

following instances:[24]

(a) Undue utterances in time of war;

(b) Actual obstruction or unauthorized dissemination of military information;

(c) Obscene publication; and

(d) Inciting to rebellion.

3. On the other hand, freedom from subsequent punishment refers to the assurance that citizens can

speak and air out their opinions without fear of vengeance by the government. Subsequent

chastisement has the effect of unduly curtailing expression, and thus freedom therefrom is essential

to the freedom of speech and the press. The State, however, can validly impose subsequent

punishment under the following instances:



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(a) Libel which is the most common form of subsequent punishment, refers to a public and malicious

imputation of a crime, vice or defect, real or imaginary or any act or omission, status tending to cause

dishonor, discredit or contempt of a natural or juridical person, or blacken the memory of one who is

dead;[25]

(b) Obscenity which includes works (taken as a whole) appealing to prurient interest or depictingsexual conduct as defined by law or lacking of serious literary, artistic, political or scientific

value;[26]

(c) Criticism of official conduct made with actual malice;[27] and

(d) School articles which materially disrupt class work or involves substantial disorder or invasion of

rights of others.[28]

Tests to Determine When Right Maybe Suppressed

There are six tests or rules to determine when the freedom may be suppressed. These are:

(1) Dangerous Tendency Test which provides that if a speech is capable of producing a substantive evil

which the State is mandated to suppress or prevent, even if it did not materialize, the State is

justified of restricting the right. This rule has already been abandoned;

(2) Clear and Present Danger Test which is a more libertarian rule, provides that the finding out of

substantive evil is not enough to suppress the right. Rather the substantive evil must have clear and

present danger type depending on the specific circumstances of the case. This rule is consistent with

the principle of “maximum tolerance” and is often applied by the Court in freedom of expression

cases;

(c) Balancing of Interest Test which provides that when there is conflict between a regulation and

freedom of speech, the court has the duty to determine which of the two demands greater protection;

(d) Grave-but-Improbable Danger Test which was meant to supplant the clear and present danger test,

determines whether the gravity of the evil, less its improbability to happen, can justify the

suppression of the right in order to avoid the danger;[29]

(e) O’Brien Test which provides that when “speech” and “non-speech” elements are combined in the

same course of conduct, a sufficiently important government interest that warrants the regulation of

the “non-speech” element can also justify incidental limitations on the speech element; and

(f) Direct Incitement Test which determines what words are uttered and the likely result of the

utterance, that is, whether or not they will directly incite or produce imminent lawless action.

Restr icti ons on F reedom of Speech

1. Two Kinds of Restrictions. The State may impose two kinds of restrictions on speech under a systemof prior restraint: content-based restriction and content-neutral restriction. The restriction is content-

based when restriction is directed to the speech itself, while the restriction is content-neutral when it

is directed, not to the speech itself, but to the incidents (such as time, place, or manner) of the

speech. An example of a content-based restriction is when the government prohibits speeches

against the President, in which case the restriction is on the speech itself. An example of a content-

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neutral restriction is when the government regulates the manner of posting campaign

advertisements, in which case the restriction is on the manner the right is made.

2. Appropriate Tests for Each Restriction. If the governmental restriction is content-based, the

applicable rule or test is the clear and present danger test. This is to give the government a heavy

burden to show justification for the imposition of such prior restraint which bears a heavypresumption of unconstitutionality. If the restriction is content-neutral, the applicable rule is only an

intermediate approach, inasmuch as the restraint is only regulatory and does not attack the speech

directly.

3. Example. In one case, the court held that the act of granting a permit to rally under the condition

that it will be held elsewhere is a content-based restriction and not content-neutral because it is

directed to the exercise of the speech right itself and not merely to the manner. As such, the

applicable test is the clear and present danger test.[30]

Regulations on Mass Media

Mass media may be broadcast media (e.g. television and radio) or print media (e.g. newspaper). The

two have a substantial difference in that broadcast media has a uniquely pervasive presence in the

lives of Filipinos. Thus, freedom of television and radio broadcasting is somewhat lesser than the

freedom accorded to the print media;[31]greater regulation is imposed over broadcast media because

of its greater tendency to invade the privacy of everyone than print media.

Doctrine of F air Comment

1. Meaning . Under the doctrine of fair comment, a discreditable imputation directed against a public

person in his public capacity, does not necessarily make one liable. Although generally every

discreditable imputation publicly made is deemed false and malicious because every man is

presumed innocent until proven guilty, nevertheless, if the imputation directed against a person in

his public is based on “established facts,” even if the inferred opinion is wrong, the comments as

justified. As long as the opinion might reasonably inferred from the facts, it is not actionable. In

order to that such discreditable imputation to a public official may be actionable, it must either be a

“false allegation” or a “baseless comment.”[32]

2. Example. If a case of theft was filed against a barangay official, and someone commented that he

maliciously stole things from the local residents, the doctrine of fair comment is applicable,

inasmuch as the opinion was based on such fact. In here, the comment is justified.

Commercial Speech

1. Meaning . Commercial speech is one that proposes a commercial transaction done in behalf of a

company or individual for purposes of profit. It is a protected speech for as long as it is not false ormisleading and does not propose an illegal transaction.[33]

2. But if the government has a substantial interest to protect, even a truthful and lawful commercial

speech may be regulated.[34]

3. Private speech is accorded more freedom and protection than commercial speech.

Freedom of Assembly

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1. Meaning . Freedom of assembly refers to the right to hold a rally to voice out grievances against the

government.

2. Freedom not Subject to Prior Restraint . As a rule, freedom of assembly is not subject to prior restraint

or prior issuance of permit by government authorities. Nevertheless, it must be exercised in such a

way that will not to prejudice public welfare. Freedom of assembly is reinforced by Batas PambansaBlg. 880, otherwise known as the Public Assembly Acts of 1985, which basically provides the

requirements and procedure for holding rallies. It also implements the observance of “maximum

tolerance” towards participants of rallies consistent with the clear and present danger test.

3. Permit Requirement . Under the said law, permit is required to hold a rally. It must be emphasized,

however, that the permit is not a requirement for the validity of the assembly or rally, because the

right is not subject to prior restraint. Rather, the permit is a requirement for the use of the public

place.

4. When Permit not Required . Permit is not required if the rally is held in a private place, in a campus of

a state college or university, or in a freedom park, in which case only coordination with the police is

required. If the application for permit is not acted upon by the mayor within two working days, then

the same is deemed granted.

5. Political rally during election is regulated by the Omnibus Election Code, not by BP 880.

Right to Form Associations

1. Constitutional Provision. Section 8, Article III provides that “the right of the people, including those

employed in the public and private sectors, to form unions, associations, or societies for purposes not

contrary to law shall not be abridged.”

2. Who may Exercise the Right . The right of association may be exercised by the employed or the

unemployed and by those employed in the government or in the private sector. It likewise embraces

the right to form unions both in the government and private sector. The right of civil servants to

unionize is expressly provided in Section 2(5), Article IX-B: “The right to self -organization shall not

be denied to government employees.” The right of labor in general to unionize is likewise provided in

Section 3, Article XIII: “[The State] shall guarantee the rights of all workers to self-organization,

collective bargaining and negotiations, and peaceful concerted activities, including the right to strike

in accordance with law.”

3. Right to Strike not Included . The right to form associations or to self-organization does not include

the right to strike. Thus, public school teachers do not enjoy the right to strike even if they are given

the constitutional right of association.[35] The terms and conditions of employment in the

Government, including in any political subdivision or instrumentality thereof and government

owned and controlled corporations with original charters, are governed by law and the employees

therein shall not strike for purposes of securing changes.[36]

Right to I nformation

1. Constitutional Provision. Section 7, Article III provides that “the right of the people to information

on matters of public concern shall be recognized. Access to official records, and to documents and



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papers pertaining to official acts, transactions, or decisions, as well as to government research data

used as basis for policy development, shall be afforded the citizen, subject to such limitations as may

be provided by law.”

2. Scope and Limitation. The right guarantees access to official records for any lawful purpose.

However, access may be denied by the government if the information sought involves: (a) Nationalsecurity matters, military and diplomatic secrets; (b) Trade or industrial secrets; (c) Criminal

matters; and (d) Other confidential information (such as inter-government exchanges prior to

consultation of treaties and executive agreement, and privilege speech).

FREEDOM OF RELIGION

Two Aspects of Freedom of Religion

1. Freedom of religion has two aspects: (a) the freedom to believe, and (b) the freedom to act on one’s

belief . The first aspect is in the realm of the mind, and as such it is absolute, since the State cannot

control the mind of the citizen. Thus, every person has the absolute right to believe (or not to believe)

in anything whatsoever without any possible external restriction by the government. The aspect

refers to the externalization of belief as it is now brought out from the bosom of internal belief. Since

it may affect peace, morals, public policy, and order, the government may interfere or regulate such

aspect of the right.

2. The second aspect is expressed in Section 5, Article III, thus “… 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.”

Non-establi shment Clause

1. Constitutional Provision. Section 5, Article III provides that “no law shall be made respecting an

establishment of religion, or prohibiting the free exercise thereof.”

2. Explanation. The non-establishment clause holds that the State cannot set up a church or pass laws

aiding one religion, all religion, or preferring one over another, or force a person to believe or

disbelieve in any religion.[37] In order words, it prohibits the State from establishing an official

religion. It discourages excessive government involvement with religion and manifest support to any

one religious denomination. Manifestly, the clause is rooted in the principle of separation of church

and state.

3. Particular Prohibitions. In particular, the non-establishment clause prohibits, among others,

prayers of a particular denomination to start a class in public schools,[38]f inancial subsidy of a

parochial school,[39] display of the ten commandments in front of a courthouse,[40] law prohibitingthe teaching of evolution,[41] mandatory reading of the bible,[42] and using the word “God” in the

pledge of allegiance.[43]

4. Exceptions to the Prohibition. The clause, however, permits the following:

(a) Tax exemption on property “actually, directly and exclusively used” for religious purposes;[44]

(b) Religious instruction in sectarian schools[45] and expansion of educational facilities in parochial

schools for secular activities;[46]

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(c) Religious instruction in public schools, elementary and high school, at the option of parents or

guardians expressed in writing, within regular class hours by designated instructors, and without

additional costs to the government;[47]

(d) Financial support given to priest, preacher, minister, or dignitary assigned to the armed forces,

penal institution or government orphanage or leprosarium;[48] (e) Government sponsorship of town fiestas which traditions are used to be purely religious but have

now acquired secular character;[49] and

(f) Postage stamps depicting Philippines as the venue of a significant religious event, in that the

benefit to religious sect is incidental to the promotion of the Philippines as a tourist destination.[50]

Tests to Determine whether Governmental Act Violates Freedom of Religi on

1. Different tests are used to determine if there are governmental violations of non-establishment

clause and free exercise clause. On the on hand, Lemon Test is used to determine whether an act of the

government violates the non-establishment clause. Under this test, a law or a governmental act does

not violate the clause when it has a secular purpose, does not promote or favor any set of religious

beliefs, and does not get the government too entangled with religion.[51]

2. On the other hand, Compelling State Interest Test and Clear and Present Danger Test are used to

determine whether there is violation of free-exercise clause. Compelling state interest test is used to

determine if the interests of the State are compelling enough to justify intrusion into an individual’s

freedom of religion. Under this test, government infringement is justified if the burden it creates on

freedom of religion is due to a sufficiently compelling state interest and the means used to attain its

purpose is the least intrusive. Clear and present danger test is used to determine whether the

circumstance are of such nature as to create a clear and present danger that will bring about a

substantive evil which the state has the right to prevent.

3, Example. In one case,[52] the Court held that expulsion from school is unjustified if is based on the

conflict between religious beliefs and school practices (saluting the flag). The expulsion violates the

right of children to education. Using the clear and present danger test, the Court held that the danger

of disloyalty which the government is trying to prevent may be the very same thing that it advocates

if expulsion is validated. Times have changed. Freedom of religion is now recognized as a preferred

right.

Religious Solicitations

Under Presidential Decree No. 1564, also known as the Solicitation Law, permit is required before

solicitations for “charitable and public welfare purposes” may be carried out. The purpose of the law

is to protect the public from fraudulent solicitations. Nonetheless, permit is no longer required if thesolicitation is for “religious purposes.” Fraud is much less in religion. If the law is extended to

religion, then it becomes unconstitutional; it constitutes restriction on freedom of religion as

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