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Section 5 – The Non-Establishment Clause and the Free Exercise Clause

- continuation of Article 4 on Freedom of Speech and Expression

- CR: Art VI, Sec. 29 (payment of money for religious purposes); Art. II Sec. 6 (Separation of church and State)

THE NON-ESTABLISHMENT CLAUSE

- the State cannot establish or sponsor an official religion

- it cannot pass laws which aid one religion, aid all religions or prefer one over the others

protected values:

1. voluntarism – religions must gain support from its members voluntarily
2. insulation- - from political influence

4 general propositions:

1. government must not prefer any religion
2. government funds must not be applied to religious purposes
3. government action must not aid religion
4. it must not result in excessive entanglement with religion

tests on the permissible aid to religion (Lemon Test):

1. the Statute must principally serve a governmental or secular purpose
2. it should principally neither advance nor prohibit a religion
3. it must not foster excessive governmental entanglement with religion

cases:

1. Aglipay – postage stamps
2. Garces – Statute of a patron saint
3. Pamil – disqualification of ecclesiastics to hold municipal positions
4. Austria – pastor who was dismissed

1. Long – expulsion of a member without notice and hearing
2. Lladoc – property tax exemptions

Exceptions:

1. Art VI Section 28 – exemption from property tax
2. Section 29- payment of public fund for ministers, priests, etc in the AFP, Penal Institution, etc.
3. ART XIV – religious instructions in public schools

THE FREE EXERCISE CLAUSE

Scope:

1. freedom to believe or not to believe – absolute
2. freedom to act on that belief – regulated

-         justification is POLICE POWER

-         comes under freedom of speech and expression

-         tests: dangerous tendency test and the clear and present danger test

cases:

1. Fabillar – authority to determine whether a church is in good repute
2. ABS – mayor’s permit not needed on authority to disseminate religious information
3. Tolentino – sales tax upheld
4. Victoriano – exclusion of a member of a sect in participating a labor union – valid
5. INK – judge criticized the activities of the INK as mere gimmickry
6. Gerona – compelled students to attend the flag ceremony as a show of love and loyalty to our country
7. Ebralinag – reversed Gerona

Section 6 – Freedom Of Religion

Scope:

1. LIBERTY OF ABODE
2. FREEDOM TO TRAVEL

LIBERTY OF ABODE

- no one could be compelled to change his or her home except in accordance with law

case: Villavicencio v. Lukban

impairment: only upon lawful order of the court guided by the limits prescribed by law

ie:  Yap – grant of bail or parole

RIGHT TO TRAVEL

- right to go from one place to another within the Philippines or outside the Philippines

impairment: by law in the interest of national security, public safety, or public health

cases:

1.  Marcos – right to travel within the country, right to leave the country but not to return; justified by public safety

2.  Manotok – conditions before an accused may be allowed to travel;

1. show urgency of travel
2. state the duration
3. obtain the consent of the surety

Section 7 – Right to Information

-         a public right where the real parties in interest are the people – standing

-         may be asserted even against GOCCs

-         rests in the premise that ultimately it is an informed and critical public opinion which alone can protect the values of a democratic government.

limitations:

1. by law
2. inherent power of an officer to control his office and the records under his custody (regulatory discretion)

a.                authority to determine what matters are of public concern

Public concern – anything which the public may want to know either because it affects them or simply

because such matters arouse the interest of an ordinary citizen

a.                manner of access to these public records

- to prevent loss or damage of data, to minimize interference of official duties, to respect the rights of others who wish to inspect the same

case:  PCGG – limitations

1. national security matters – state secrets
2. trade secrets and banking transactions
3. criminal matters
4. other confidential matters

Marquez – Bank Secrecy Law v. prosecution of Anti-Graft cases

1. notice to the bank exec. and the account holder
2. a pending case before a court of competent jurisdiction
3. account must be clearly identified
4. subject matter of the case

Section 8 - Right of Association

-         given to all citizen, employed or unemployed in the government or private sectors

-         often invoked in labor cases CR: Art XIII Section 3

-         right to strike is not given to government employees

cases:

1.       BelAir- membership in the HOA upon purchase of lot

2.      Tanduay – membership in the union upon employment

3.      PAFLU – registration of LO to acquire legal personality

4.      Hernandez – CPP membership not illegal; HUK – illegal

5.      Ferrer – CPP – overthrow of government

Section 9 – Eminent Domain

Elements:

public contracts

1. substantial impairment only

-         a mere change in procedural remedies which does not diminish substantive rights or increase substantive obligations does not violate the guarantee

2. a limit on the exercise of legislative power and not of judicial or quasi-judicial power

3. limited by the exercise of the three inherent powers

4. change should not alter the relations between parties  ie:  taxation

Reservation Clause:  Article XII Section 11

- with or without it, the non-impairment clause shall bow to police power and taxation

cases:

1. Co – redemption of foreclosed property
2. Ortigas – zoning regulations as a valid exercise of police power
3. Abella – separation pay law – valid
4. Victoriano – contracts must yield to religion
5. Oposa – TLAs are subject to police power

Section 11 – Free Access to Courts

- litigation in forma pauperis

- indigents – persons who have no property or sources of income sufficient for their support aside from their own labor though self-supporting when able to work and in employment

- applicable even in appellate litigation

Government programs:

1. Counsel de Oficio
2. Government-based legal aid (PAO)
3. Bar Association-based

Section 12 – rights of a person under investigation

-         a guarantee of the right to proper treatment of those under investigation

-         the judicial system is founded on the principle that “it is better to free a hundred criminals than to imprison one innocent man.”

# Qs:

1. when do rights begin to be available?
2. what rights are available?
3. when do rights cease to be available?

The 3 stages of criminal investigation:

1. investigation prior to the filing of charges

-         inquiry is under the control of the police officers – section 12

2. preliminary examination and investigation after the charges are filed
3. trial – sections 14 and 17

2 American Jurisprudence:

1.  Escobedo v. Illinois – rights of a person under custodial investigation – the time when the investigation is no longer a general inquiry into an unsolved crime but has began to focus on a particular suspect

- the police would carry out a process of interrogations that lends itself to eliciting incriminating statements

2.  Miranda v. Arizona – enumeration of rights available to a person under custodial investigation

a.  informed of the right to remain silent

b.  told that anything he says can and will be used against him in court

c.  informed of his right to have counsel

d.  if he is indigent, a lawyer would be provided him

e.  the moment he asks for a lawyer in stage of the investigation, all inquiry shall cease until a lawyer arrives

f.  no evidence obtained in violation of the above enumeration can be used against the accused

- lends itself to the fact that the psychological if not physical atmosphere of a custodial investigation, in the absence of proper safeguards, is inherently coercive.

Adoption by Philippine jurisprudence prior to the 1987 Constitution: Pp. v. Duero – when confession is presented in court, present proof that the same was done intelligently and voluntarily.

Requisites when right attaches:

1.        in custody of a law enforcer, in jail or deprived of freedom of action in a significant way

2.       must be under investigation

Investigation – that which is conducted by the police authorities which will include investigations by the PNP, NBI and other police agencies in our government.

Case: Hermoso – includes investigations done by a Barangay Captain during custodial investigation

3.       when such questioning is made in relation to a crime.

- the rights are not available before government investigations become involved

cases:

1.       Ayson - PAL officers

2.     Kimpo – confessions made to a private person

3.     Ordono – radio announcer

4.      Zuela – mayor

5.     Endino – recorded interview with newsmen

6.     Taylaran – admissions during a voluntary surrender

7.     Baloloy – spontaneous statements (res gestae)

8.     Galman – covers persons not yet in custody but are already under investigation; extends to the time immediately after the commission of the offense even if the suspect is not yet deprived of his liberty

9.     Marra – custodial investigation only

1.       Principe – extended to those persons merely invited for questioning (RA 7438)

2.     Gamboa – paraffin test is not a communicative action or a testimonial compulsion

3.     Hatton – police line-up

4.     Macam – police line-up but already under custodial investigation

Rights of a person under custodial investigation:

1. right to remain silent – may not be used against him

2. right to competent and independent counsel – preferably of the detainee’s own choice

-         in cases where lawyers are appointed, the accused has the option to accept or reject the lawyer

-         once you cooperate with the lawyer, you are deemed to have accepted his services

cases:

a.  Fabro – designated by the police

b.  Taliman - mayor

c.  Morial/Suela – effective counsel from start to finish

* also the belated presence of a lawyer the following day

* or when the lawyer has been hired and paid for by the police

d.  Diokno – even in times of emergency

3. right to be informed of his rights

case: Rojas – involves the transmission of meaningful information rather than just the ceremonial and perfunctory recitation of an abstract constitutional principle

-         police officers must explain the effects

Waiver – Pp. v. Galit

1. inform him of the reason for his arrest
2. present the warrant if any
3. inform him of his rights and that any statement he makes may be used against him – not waivable
4. must have the right to communicate with his lawyer or a relative
5. investigation must be conducted in the presence of counsel (engaged by the person arrested or appointed by the court)
6. if he waives, the same must be made with counsel

case: Jara – presumption is against the waiver

Coerced Confessions (section 12(2)):

Exclusionary Rule – covers every form of confession/evidence obtained in violation of sections 12 and 17

- excluded evidence can be used against the officer who obtained it

Cases:

1.       Penillos – even if true and made voluntarily

2.      Olvis – applies to a re-enactment

3.      Jungco – or pictures of a re- enactment

4.      Morico – signed receipt of the seized property

5.      Enriquez – accused wrote his name on the evidence

6.      Bandin – booking sheet and arrest

7.      Aballe – absolute inadmissibility provided under section 3

RA 7438 (AN ACT DEFINING CERTAIN RIGHTS OF PERSON ARRESTED, DETAINED OR UNDER CUSTODIAL INVESTIGATION AS WELL AS THE DUTIES OF THE ARRESTING, DETAINING AND INVESTIGATING OFFICERS, AND PROVIDING PENALTIES FOR VIOLATIONS THEREOF.)

-          additional requirement that the confession should be in writing

-         made oral confessions void.

Who can assist the accused? Any lawyer except:

1.       fiscal

2.     ombudsman

3.     members of the COMELEC

4.     DENR

5.     those directly affected by the case

6.     those charged with conducting preliminary investigation

7.     those charged with the prosecution of crimes

8.     municipal attorney

What happens after the waiver and a confession was executed?

- lawyer is not needed anymore but the following must be present:

1.       parents

1.       brother/sister

2.     spouse

3.     mayor

4.     priest

5.     etc.

important:  they are not substitutes for the assistance of counsel during waiver\