CONSTITUTIONAL LAW

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CONSTITUTIONAL LAW

CHAPTER I – FUNDAMENTAL POWERS OF THE STATE

 (Police Power)

1.            Define:

police power—is the power vested in the legislature by the Constitution to make, ordain, establish all manner of wholesome and reasonable laws for the good and welfare of the State and its people. (ERMITA MALATE HOTEL VS. CITY MAYOR, July 31, 1967)

The basic purposes of police power are:

a.            to promote the general welfare, comfort and convenience of the people;(ASSOCIATION OF SMALL LANDOWNERS VS. SECRETARY, 175 SCRA 343; US VS. TORIBIO, 15 Phil. 85

b.            to promote and preserve public health; (VILLANUEVA VS. CASTANEDA, September 21, 1987; DECS VS. SAN DIEGO, 180 SCRA 533 [NMAT]; LORENZO VS. DIRECTOR OF HEALTH, 50 Phil. 595—apprehend and confine lepers in a leprosarium)

 

PROFESSIONAL REGULATIONS COMMISSION VS. ARLENE DE GUZMAN, ET AL., June 21, 2004

POLICE POWER/Public Health; THE RIGHT TO PRACTICE A PROFESSION

Facts:

After the Professional Regulations Commission (PRC) released the names of successful examinees in the Medical Licensure Examination, the Board of Medicines observed that the grades of the 79 Fatima College of Medicine  successful examinees  were unusually and exceptionally high in the two (2) most difficult subjects of the exam, i.e., Biochemistry and Obstetrics and Gynecology.

The Board then issued Resolution No. 19 withholding the registration as physicians of all the examinees from Fatima College of Medicine. Compared with other examines from other schools, the results of those from Fatima were not only incredibly high but unusually clustered close to each other. The NBI  Investigation found that the “Fatima examinees gained early access to the test questions.”

On July 5, 1993, the respondents-examinees filed a petition for mandamus before the RTC of Manila to compel the PRC  to give them their licenses to practice medicine. Meanwhile on July 21, 1993, the Board of medicine issued Resolution No. 21 charging the respondents of immorality, dishonest conduct, fraud and deceit and recommended that the test results of the Fatima Examinees be nullified.

On December 19, 1994, the RTC of Manila promulgated its decision ordering the PRC to allow the respondents to take the physician’s oath and to register them as physicians. The same was appealed by the PRC to the Court of Appeals which sustained the RTC decision.

Hence, this petition.

Held:

It must be stressed that the power to regulate the practice of a profession or pursuit of an occupation cannot be exercised by the State in an arbitrary, despotic or oppressive manner. However, the regulating body has the right to grant or forbid such privilege in accordance with certain conditions.

But like all rights and freedoms guaranteed by the Constitution, their exercise may be regulated pursuant to the police power of the State to safeguard health, morals, peace, education, order, safety, and general welfare of the people. As such, mandamus will not lie to compel the Board of Medicine to issue licenses for the respondents to practice medicine.

RA 2382 which prescribes the requirements for admission to the practice of medicine, the qualifications of the candidates for the board examination, the scope and conduct of the examinations, the grounds for the denying of the issuance of a physician’s license, or revoking a license that has been issued. It is therefore clear that the examinee must prove that he has fully complied with all the conditions and requirements imposed by law and the licensing authority to be granted the privilege to practice medicine. In short, he shall have all the qualifications and none of the disqualifications. The petition is therefore granted.

c.            to promote and protect public safety; (AGUSTIN VS. EDU, 88 SCRA 195; TAXICAB OPERATORS VS. JUINIO, 119 SCRA 897 )

d.            to maintain and safeguard peace and order; (GUAZON VS. DE VILLA)

e.            to protect public morals; (DE LA CRUZ VS. PARAS, 123 SCRA 569; ERMITA MALATE HOTEL VS. CITY MAYOR, July 31, 1967; JMM PROMOTIONS VS. CA, 260 SCRA 319; VELASCO VS. VILLEGAS, February 13, 1983)

f.             to promote the economic security of the people. (ichong vs. hernandez, 101 Phil. 11155)

Not a valid exercise of police power:

a.            CITY GOVERNMENT OF QC VS. ERICTA, 122 SCRA 759; (6%)

b.            YNOT VS. IAC, 148 SCRA 659; the Director of Animal Industry or the Chairman if the National Meat Commission “may dispose of the carabeef to charitable agencies as he may deem fit”. This is oppressive and unreasonable since the owner is denied due process of law and he is given so much discretion as the law is not complete in itself nor is there a standard to guide the official.

c.            DE LA CRUZ VS. PARAS, 123 SCRA 569

power of eminent domain

power of taxation

2.            Differences and similarities

Didipio earth savers multi purpose association vs. denr sec.  Elisea gozu, et al., 485 scra 586

Chico-Nazario, J.

1.            The power of eminent domain is the inherent right of the State to condemn or to take private property for public use upon payment of just compensation while police power is the power of the state to promote public welfare by restraining and regulating the use of liberty and property without compensation;

2.            In the exercise of police power, enjoyment of a property is restricted because the continued use thereof would be injurious to public welfare. In such case, there is no compensable taking provided none of the property interests is appropriated for the use or for the benefit of the public. Otherwise, there should be compensable taking if it would result to public use.

3.            Properties condemned under police power are usually noxious or intended for noxious purpose; hence , no compensation shall be paid. Likewise, in the exercise of police power, property rights of private individuals are subjected to restraints and burdens in order to secure the general comfort, health and prosperity of the state.

While the power of eminent domain often results in the appropriation of title to or possession of property, it need not always be the case. Taking may include trespass without actual eviction of the owner, material impairment of the value of the property or prevention of the ordinary uses for which the property was intended such as the establishment of an easement.

As such, an imposition of burden over a private property through easement (by the government) is considered taking; hence, payment of just compensation is required. The determination of just compensation, however, is a judicial function (EPZA vs. Dulay, 149 SCRA 305) and initial determinations on just compensation by the executive department and Congress cannot prevail over the court’s findings.

Finally, service contracts with foreign corporations is not prohibited under the 1987 Philippine Constitution with foreign corporations or contractors would invest in and operate and manage extractive enterprises, subject to the full control and supervision of the State; this time, however, safety measures were put in place to prevent abuses of the past regime.

3.            Limitations in the exercise of said powers

4.            Tests for a valid exercise of police power

a.            the interests of the public, not mere particular class, require the exercise of police power; (LAWFUL SUBJECT)

b.            the means employed is reasonably necessary for the accomplishment of the purpose and not unduly oppressive to individuals. (LAWFUL MEANS). In short, the end does not justify the means.

5.            Read:

a.            JMM Promotions vs. CA, 260 SCRA 319

b.            ERMITA-MALATE HOTEL VS. MAYOR OF MANILA, July 31, 1967;

c.            ICHONG VS. HERNANDEZ, 101 Phil. 1155

d.            CHURCHILL VS. RAFFERTY, 32 Phil. 580

e.            PEOPLE VS. POMAR, 46 Phil. 447

f.             US VS. TORIBIO, 15 Phil. 85

g.            VELASCO VS. VILLEGAS, February 13, 1983

h.            ILOILO ICE & COLD STORAGE VS. MUNICIPAL COUNCIL, 24 Phil. 471

i.              AGUSTIN VS. EDU, 88 SCRA 195

j.             YNOT VS. IAC, 148 SCRA 659

RESTITUTO YNOT VS. THE ITERMEDIATE APPELLATE COURT, G.R. No. 74457,March 20, 1987

Cruz, J.

Facts:

1.   On January, 13, 1984, Ynot transported six carabaos by using a pumpboat from Masbate to Iloilo. The six carabaos, were, however, confiscated by the Police Station Commander of Baratoc Nuevo, Iloilo for alleged violation of Executive Order No. 626-A which prohibits the inter-provincial transporting of carabaos and carabeefs which does not comply with the provisions of Executive No.626;

2.   That Section 1 of the said law provides that “henceforth, no carabaos regardless of age, sex physical condition or purpose and no carabeef shall be transported from one province to another. The carabao or carabeef transported in violation of the said law shall be subjected to confiscation and forfeiture by the government to be distributed to charitable institution and similar institutions as the Chairman of the National meat inspection Commission may see fit in the case of the carabeef, and to deserving farmers through the dispersal of the Director of Animal Industry, in the   case of carabaos;

3.   Ynot filed a suit for recovery and the carabao were returned to him upon the issuance of a writ of replevin upon his filing of a supersede as bond in the amount of P12,000.00;

4.   After trial of the case, the Judge upheld the validity of the act of the Police Station Commander in confiscating the carabaos. Ynot was ordered to returned the carabaos but since he could not do so, the court ordered the confiscation of the bond. The court refused to rule on the constitutionality of the said Executive Order on the ground of lack of authority to do so and also because of its presumed validity;

5.   The petitioner appealed to the IAC but the said court upheld the decision of the Trial Court. Hence this petition for review on certiorari before the Supreme Court where YNOT claimed that the penalty of confiscation is INVALID the same was imposed without according the owner the right to be heard before a competent and impartial tribunal as guaranteed by due process.

Issues:

1.   May a lower court (like the MTC, RTC, of the Court of Appeals) declare a law unconstitutional?

2.   Is Executive Order No. 626-A constitutional?

Sub-issues under this are:

a. Was it a valid police power measure?

b. Was there an undue delegation of legislative power?

Held:

1.   While the lower courts should observe a becoming modesty in examining constitutional question, THEY ARE NOT PREVENTED FROM RESOLVING THE SAME WHENEVER WARRANTED, subject only to review by the supreme court. This is so because under Section 5,[2(a)], Art. VIII, of the 1987 Constitution provides that the Supreme Court has the power to “review, revise, reverse, modify or affirm on appeal” or certiorari as the rules of court may provide, final judgements and orders of the lower courts in all cases involving the constitutionality of certain measures. This simply means that lower courts may declare whether or not a law is constitutional.

2.   In order that a measure or law may be justified under the police power of the state, it must meet two tests:

     a. the subject must be lawful; and

    b. the means employed is lawful.

Since the prohibition of the slaughtering of carabaos except where they are at least 7 years old when male and at least 11 years old when female is in furtherance of the public interest since said carabaos are very useful to the work at the farm, it is conceded that the Executive Order meets the first test—- it has  lawful subject.

But does the law meets the second requisite or test which is lawful method?

Executive Order No. 626-A imposes an absolute ban not on the slaughtering of carabaos BUT ON THIER MOVEMENT, providing that “no carabao regardless of age, sex, physical condition or purpose and no carabeef shall be transported from one province to another.” The reasonable connection between the means employed and the purpose sought to be achieved by the question measure is missing. We do not see how the prohibition of the  inter-provincial transport can prevent their indiscriminate slaughter considering that they can be killed any where, with no less difficulty in one province than in the other. Obviously, retaining a carabao in one province will not prevent their slaughter there, any more than moving them to another province will make it easier to kill them there.

The law is unconstitutional because it struck at once and pounced upon the petitioner without giving him a chance to be heard, thus denying him the centuries-old guarantee of elementary fair play.

Since  the Executive Order in question is a penal law, then violation thereof should be pronounce not by the police BUT BY A COURT OF JUSTICE, WHICH ALONE WOULD HAVE HAD THE AUTHORITY TO IMPOSE THE PRESCRIBED PENALTY, AND ONLY AFTER TRIAL AND CONVICTION OF THE ACCUSED.

Also, there is no reasonable guidelines or bases of the Director of Animal Industry or the Chairman of the NATIONAL Meat Inspection Commission in the disposition of the carabaos or carabeef other than what “they  may see fit” which is very dangerous and could result to opportunities for partiality and abuse, and even graft and corruption.

The Executive Order is, therefore, invalid  and unconstitutional and not a valid police power measure because the METHOD EMPLOYED TO CONSERVE CARABAOS IS NOT REASONABLY NECESSARY TO THE PURPOSE OF THE LAW AND, WORSE IS UNDULY OPPRESSIVE. DUE PROCESS IS VIOLATED BECAUSE THE OWNER OF THE PROPERTY CONFISCATED IS DENIED THE RIGHT TO BE HEARD IN HIS DEFENSE AND IS IMMEDIATELY CONDEMNED AND PUNISHED. THE CONFERMENT ON THE ADMINISTRATIVE AUTHORITIES (like the police) OF THE POWER TO ADJUDGE THE GUILT OF THE SUPPOSED OFFENDER IS A CLEAR ENCROACHMENT OF JUDICIAL FUNCTIONS AND MILITATES AGAINST THE DOCTRINE OF SEPARATIION OF POWERS.

Also, there is undue delegation of legislative power to the officers mentioned therein  (Director of Animal Industry and Head of the National Meat Commission) because they were given unlimited discretion in the distribution of the property confiscated.

k.            TAXICAB OPERATORS VS. BOT, 119 SCRA 597

l.              BAUTISTA VS. JUINIO, 127 SCRA 329

MARY CONCEPCION-BAUTISTA VS. ALFREDO JUINIO, ET AL,  127 SCRA 329

Fernando, C.J

Facts:

1. On May 31, 1979, President Marcos issued Letter of Instruction No. 869 prohibiting  the use of private motor vehicles with H (Heavy Vehicles) and EH (Extra Heavy Vehicles) on week-ends and holidays from 12:00 a.m. Saturday morning to 5:00 a.m. Monday morning, or 1:00 a.m. of the holiday to 5:00 a.m. of the day after the holiday. Motor vehicles of the following classifications are however, exempted:

1. S—-service;

2. T—-Truck;

3. DPL–Diplomatic;

4. CC—Consular Corps; and

5. TC—Tourist Cars

2. On June 11, 1979, the then Commissioner of Land Transportation, ROMEO EDU issued Circular No. 39 imposing “the penalties of fine, confiscation of vehicle and cancellation of registration on owners of the above-specified found violating such letter of Instructions”;

3. Bautista is questioning the constitutionality of the LOI and the Implementing Circular on the grounds that:

a. The banning of H and EH vehicles is unfair, discriminatory, and arbitrary and thus contravenes the EQUAL PROTECTION CLAUSE; and

b. The LOI denies the owners of H and EH vehicles of due process, more specifically of their right to use and enjoy their private property and of their freedom to travel and hold family gatherings, reunions, outings on week-ends and holidays, while those not included in the prohibition are enjoying unrestricted freedom;

c. The Circular violates the prohibition against undue delegation of legislative power because the LOI does not impose the penalty of confiscation.

HELD:

1. It must be pointed out that the LOI was promulgated to solve the oil crisis which was besetting the country at that time. It was therefore a valid police power measure to ensures the country’s economy as a result of spiralling fuel prices. In the interplay of Bautista’s right to due process and the exercise of police power by the State, the latter must be given leeway. The police power is intended to promote public health, public morals, public safety  and general welfare.

2. The petitioners’ claim that their right to equal protection was violated is without basis. This is so because there is a valid classification in this case. Definitely, Heavy and Extra-Heavy vehicles consume more gasoline that the other kinds of vehicles and it is but proper to regulate the use of those which consumes more gasoline. If all the owner of H and EH vehicles are treated in the same fashion, or whatever restrictions cast on some in the group is held equally binding on the rest, there is no violation of the equal protection clause.

3. The penalty of “impounding” the vehicle as embodied in Circular No. 39 has no statutory basis. Therefore, it is not valid being an “ultra vires”.

m.          ASSOCIATION OF SMALL LANDOWNERS VS. SECRETARY OF AGRARIAN REFORM, 175 SCRA 343

n.            DECS VS. SAN DIEGO, 180 SCRA 533

o.            VILLANUEVA VS. CASTANEDA, September 21, 1987

5-a. Not a valid exercise of police power

CITY GOVERNMENT OF QUEZON CITY VS. ERICTA, 122 SCRA 759


 

CONSTITUTIONAL LAW

CHAPTER II— DUE PROCESS

Section 1—NO PERSON SHALL BE DEPRIVED OF LIFE, LIBERTY OR PROPERTY WITHOUT DUE PROCESS OF LAW, NOR SHALL ANY PERSON BE DENIED EQUAL PROTECTION OF THE LAWS.

Kinds of Due Process:

a.            substantive due process—requires the intrinsic validity of the law in interfering with the rights of the person to life, liberty or property. In short, it is to determine whether it has a valid governmental objective like for the interest of the public as against mere particular class.

b.            Procedural due process—one which hears before it condemns as pointed out by Daniel Webster.

Due process is a law which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial (Per Daniel Webster in the DARTMOUTH COLLEGE CASE)

1.            Requisites of “judicial due process”.

a.            BANCO ESPANOL VS. PALANCA, 37 Phil. 921

Requisites:

1.            There must be an impartial court or tribunal clothed with judicial power to hear and decide the matter before it;

2.            Jurisdiction must be lawfully acquired over the person of the defendant or over the property subject of the proceedings;

3.            The defendant must be given the opportunity to be heard;

4.            Judgment must be rendered only after lawful hearing.

a. GALMAN VS. PAMARAN (the 1st case)

b.            IMELDA MARCOS VS. SANDIGANBAYAN, October 6, 1998

IMELDA R. MARCOS VS. SANDIGANBAYAN, G.R. No. 126995, October 6, 1998

Purisima, J.

Facts:

1.            On  June 8, 1984, IMELDA MARCOS and JOSE DANS, as Chairman and  Vice Chairman of the Light Railway Transit Authority (LRTA) entered into a Lease Contract with the Philippine General Hospital Foundation (PGHFI) involving an LRTA property  in Pasay City for P102,760.00 per month for 25 years;

2.            On June 27,1984, the PGHFI subleased the said property for P734,000.00 per month to the Transnational Construction Corporation represented by one Ignacio Jumenez;

3.            After   petitioner’s husband was deposed as President of the Philippines, she and Dans were charged of alleged violation of Section 3 [g] of RA 3019, otherwise known as the Anti-Graft and Corrupt Practices Act before the Sandiganbayan;

4.            After trial , the First Division of the Sandiganbayan failed to comply with the legal requirement that all the 3 justices must be unanimous in its Decision because Justice Garchitorena and Justice Jose Balajadia voted for the conviction of both accused while Justice Narciso Atienza voted to acquit them;

5.            Thereafter, Justice Garchitorena as Presiding Justice issued Administrative Order No. 288-93 constituting a Special Division of  five and designating Justices Augusto Amores and Cipriano del Rosario;

6.            On September 21, 1993, Justice Amores wrote Justice Garchitorena that he be given 15 days his Manifestation. On the same date, however, Justice Garchitorena   dissolved the division of 5 allegedly because he and Justice Balajadia had agreed to the opinion of Justice del Rosario;

7.            On September 24, 1993, a Decision was rendered convicting the  petitioner and Dans of violation of Sec. 3 [g] of RA 3019;

8.            On June 29, 1998, the Third Division of the Supreme Court by a vote of 3-2 affirmed the conviction of the petitioner but acquitted DANS;

9.            Petitioner then filed a Motion for Reconsideration and at the same time prayed that her Motion be heard by the Supreme Court en banc claiming that her right to  due process of law, both  substantive and procedural, was violated:

a.             as a result of the fact that she was convicted as a result of the alleged disparity of the rentals agreed upon with PGHFI and the subsequent sub-lease contract between PGHFI and Transnational Construction Corporation; and

b.            the First Division convicted her after Justice Garchitorena  dissolved the Special Division of 5 after a lunch in a Quezon City restaurant where they agreed to convict her in one case and acquit her in her other cases. The said meeting was attended by another  justice who is not a member of the First Division or the Special Division in violation of the Rules of the Sandiganbayan which requires that sessions of the court shall be done only in its principal office in Manila and that only justices belonging to the division should join the deliberations.

Held:

The petitioner is hereby acquitted.

1. The great disparity between the rental price of the lease agreement signed by the petitioner (P102,760.00 per month)  and the sub-lease rental (P734,000.00 per month) does not necessarily render the monthly rate of P102,760.00 manifestly and grossly disadvantageous to the government in the absence of any evidence using rentals of adjacent properties showing that the rentals in the property subject of the lease agreement  is indeed very low. NO EVIDENCE WHATSOEVER WAS PRESENTED BY THE PROSECUTION REGARDING THE RENTAL RATE OF ADJACENT PROPERTIES.. As such,  the prosecution failed to prove the guilt of the petitioner   reasonable doubt.

2. The court notes likewise the bias and prejudice of Presiding Justice Garchitorena against the petitioner as shown by his  leading, misleading and baseless hypothetical questions of said justice to RAMON F. CUERVO, witness for the petitioner. Said justice asked 179 questions to the witness as against the prosecutor who cross-examined the witness which was 73. Said number of questions could no longer be described as “clarificatory questions”. Another ground therefore for the acquittal of the petitioner is that she was denied IMPARTIAL TRIAL before the Sandiganbayan. This is one reason why the case could no longer be remanded to the Sandiganbayan especially so that the other Sandiganbayan Justices in the Special Division of 5 have retired. There is therefore no compelling reason why the case should still be remanded to the lower court when all the evidence are already with the Supreme Court.

(NOTE: The vote was 9-5 for Acquittal. CJ Narvasa, Justices Regalado, Davide, Jr., Romero, and Panganiban voted for conviction while Justice Vitug was the only Justice who voted for the return of the case to the Sandiganbayan “to allow the corrections of the perceived ‘irregularities’ in the proceedings below.)

c.            DBP VS. CA, January 29, 1999

d.            MATUGUINA VS. CA, 263 SCRA 490

e.            PEOPLE VS. CA, 262 SCRA 452

f.             JAVIER VS. COMELEC, 144 SCRA 194

 

                  JAVIER VS. COMELEC

       G.R. No.L- 68379-812, September 22, 1986

FACTS:

1.   The petitioner Evelio Javier and the private respondent Arturo Pacificador were candidates in Antique for the Batasang Pambansa election in May 1984;

2.   Alleging serious anomalies in the conduct of the elections and the canvass of the election returns, Javier went to the COMELEC to prevent the impending proclamation of his rival;

3.   On May 18, 1984, the Second Division of the COMELEC directed the provincial board of canvassers to proceed with the canvass but to suspend the proclamation of the winning candidate until further orders;

4.   On June 7, 1984, the same Second Division ordered the board to immediately convene and to proclaim the winner without prejudice to the outcome of the petition filed by Javier with the COMELEC;

5.   On certiorari with the S.C. the proclamation made by the Board of Canvasser was set aside as premature, having been made before the lapse of the 5 – day period of appeal, which the petitioner seasonably made;

6.   On July 23, 1984 the Second Division itself proclaimed Pacificador the elected assemblyman of Antique.

ISSUE:

Was the Second Division of the COMELEC, authorized to promulgate its decision of July 23, 1984 proclaiming Pacificador the winner in the election ?

APPLICABLE PROVISIONS OF THE CONSITUTION:

The applicable provisions of the 1973 Constitution are Art. XII-C, secs. 2 and 3, which provide:

“Section 2. Be the sole judge of all contests relating to the election, returns and qualifications of all members of the Batasang Pambansa and elective provincial and city officials.”

“Section 3. The Commission on Elections may sit en banc or in three divisions. All election casesa may be heard and decided by divisions except contests involving members of the Batasang Pambansa, which shall be heard and decided en banc. Unless otherwise provided by law, all election cases shall be decided within ninety days from the date of their submission for decision.”

CONTENTIONS OF THE PARTIES:

Petitioner:

The proclamation made by the Second Division is invalid because all contests involving members of the Batasang Pambansa come under the jurisdiction of the Commission on Elections en banc.

Respondents:

Only “contests” need to be heard and decided en banc, all other cases can be – in fact, should be – filed with and decided only by any of the three divisions.

There is a difference between “contests” and “cases” and also a difference between “pre-proclamation controversies” and “election protests”. The pre-proclamation controversy between the petitioner and the private respondent was not yet a contest at the time and therefore could be validly heard by a mere division of the Commission on elections, consonant with Sec. 3. The issue at that stage was still administrative and could be resolved by a division.

HELD:

a.   The S.C. decided to resolve the case even if the Batasang Pambansa had already been abolished by the Aquino government, and even if Javier had already died in the meantime. This was because of its desire for this case to serve as a guidance for the future. Thus it said: “The Supreme Court is not only the highest arbiter of legal questions but also the conscience of the government. The citizen comes to us in quest of law but we must also give him justice. The two are not always the same. There are times when we cannot grant the latter because the issue has been settled and decision is no longer possible according to law. But there are also times when although the dispute has disappeared, as in this case, it nevertheless cries out to be resolved. Justice demands that we act, then, not only for the vindication of the outraged right, though gone, but also for the guidance of and as a restraint upon the future.”

b.   The S.C. held on the main issue that in making the COMELEC the sole judge of all contests involving the election, returns and qualifications of the members of the Batasang Pambansa and elective provincial and city officials, the Constitution intended to give it full authority to hear and decide these cases from beginning to end and on all matter related thereto, including those arising before the proclamation of the winners.

The decision rendered by the Second Division alone was therefore set aside as violative of the Constitution. The case should have been decided en banc.

c.   Pre-proclamation controversies became known and designated as such only because of Sec. 175 of the 1978 Election Code. The 1973 Constitution could not have therefore been intended to have divided contests between pre and post proclamation when that Constitution was written in 1973.

d.   The word “contests” should not be given a restrictive meaning; on the contrary, it should receive the widest possible scope conformably to the rule that the words used in the Constitution should be interpreted liberally. As employed in the 1973 Constitution, the term should be understood as referring to any matter involving the title or claim of title to an elective office, made before or after the proclamation of the winner, whether or not the contestant is claiming the office in dispute.

e.   There was also a denial of due process. One of the members of the Second Division, Commissioner Jose Opinion was a law partner of Pacificador. He denied the motion to disqualify him from hearing the case. The Court has repeatedly and consistently demanded “the cold neutrality of an impartial judge” as the indispensable imperative of due process. To bolster that requirement we have held that the judge must not only be impartial but must also appear to be impartial as an added assurance to the parties that his decision will be just.

FELICIANO and MELENCIO-HERRERA, concurring:

All election contests involving members of the Batasang Pambansa must be decided by the Commission on Elections en banc  under Secs. 2 and 3 of Art. XII-C of the 1973 Constitution. These sections do not distinguish between “pre-proclamation” and “post-proclamation” contests nor between “cases” and “contests”.

g.            AZUL VS. CASTRO, 133 SCRA 271

h.            PADERANGA VS. AZURA, 136 SCRA 266

i.             DAVID VS. AQUILIZAN, 94 SCRA 707

j.             LORENZANA VS. CAYETANO, 78 SCRA 485 (respondent was not a party to the ejectment case) so to enforce the decision on her violates her right to due process of law

k.            ZAMBALES CHROMITE MINING VS. CA, 94 SCRA 261

l.             ANZALDO VS. CLAVE, 119 SCRA 353

m.          SINGSON VS. NLRC, 273 SCRA 258

n.            ANZALDO VS. CLAVE, 119 SCRA 353

o.            MAYOR ALONTE VS. JUDGE SAVELLANO, 287 SCRA 245

 

MAYOR BAYANI ALONTE VS. JUDGE SAVELLANO, 287 SCRA 245

Vitug, J.

Mayor Alonte of Binan, Laguna was charged of rape before Branch 25, RTC of Laguna. However, as a result of a petition for a transfer of venue filed by the prosecution and granted by the SC, his case was transferred to RTC Branch 53, Manila, presided over by the respondent judge.

After the petitioner’s arraignment, the prosecution submitted an AFFIDAVIT OF DESISTANCE signed by the private complainant JUVIE-LYN PUNONGBAYAN where she prayed for the withdrawal of the case because she is no longer interested in pursuing the same with no intention of re-filing the said case in the future.

Pending resolution of the said motion to withdraw, the petitioner filed a motion for bail. The same was not resolved despite several motions filed by the petitioner to resolve the same.

On December 17, 1997, counsel for the petitioner, ATTY. PHILIP SIGFRID FORTUN, received a notice from the respondent judge notifying him of the promulgation of the decision in this case despite the fact that the prosecution and the defense have not presented their evidence in court.

On December 18, 1997, the respondent judge issued a Decision convicting the petitioner of rape and sentenced to suffer a penalty of RECLUSION PERPETUA.

Issue:

Whether or not the petitioner was denied his right to due process of law.

Held:

In order that an accused in a criminal proceedings is deemed to have been given the right to due process of law, the following requisites must be complied with before a decision is rendered:

1.            the court or tribunal trying the case is clothed with jurisdiction to hear and determine the matter before it;

2.            that jurisdiction was lawfully acquired by it over the person of the accused;

3.            that the accused is given the opportunity to be heard; and

4.            that judgment is rendered only upon lawful hearing (PEOPLE VS. DAPITAN, 197 SCRA 378)

The act of the respondent judge in rendering a decision without even giving the petitioner the right to adduce evidence in his behalf is a gross violation of his right to due process of law.  The Decision rendered is NULL AND VOID for want of due process.

p.            DBP VS. CA, January 29, 1999

2.            Procedural due process before administrative bodies

a.            TIBAY VS. CIR, 69 Phil. 635

          Requisites:

a.            the right to a hearing which includes the right to present evidence;

b.            the tribunal must consider the evidence presented;

c.            the decision must have something to support itself;

d.            the evidence must be substantial;

e.            the decision must be based on the evidence presented during the hearing;

f.             the tribunal or body must act on its own independent consideration of the law or facts;

g.            the board or body shall in all controversial questions, render its decision in such a manner that the parties to the proceedings can know the various issues involved.

b.            AMERICAN TOBACCO VS. DIRECTOR,  67 SCRA 287

c.            MANILA ELECTRIC COMPANY VS. NLRC, 263 SCRA 531

d.            DELGADO VS. CA, November 10, 1986

If an accused was represented by a non-lawyer during the trial (though he thought that he was a lawyer), his right to due process was violated and therefore entitled to a new trial.

3.            Procedural due process in disciplinary actions against students

Academic freedom; due process in disciplinary actions involving students

DE LA SALLE UNIVERSITY VS. COURT OF APPEALS, HON.WILFREDO D. REYES, in his capacity as Presiding Judge of Branch 36, Regional Trial Court of Manila, THECOMMISSION ON HIGHER EDUCATION, THE DEPARTMENT OF EDUCATION CULTURE ANDSPORTS, ALVIN AGUILAR, JAMES PAUL BUNGUBUNG, RICHARD REVERENTE and ROBERTOVALDES, JR., G.R. No. 127980,  December 19, 2007

REYES, R.T., J.:

THE FACTS:

PRIVATE respondents Alvin Aguilar, James Paul Bungubung, Richard Reverente and Roberto Valdes, Jr. are members of Tau Gamma Phi Fraternity who were expelled by the De La Salle University (DLSU) and College of Saint Benilde (CSB)[1][1] Joint Discipline Board because of their involvement in an offensive action causing injuries to petitioner James Yap and three other student members of Domino Lux Fraternity.

On  March 29, 1995,   James Yap was eating his dinner alone in Manang’s Restaurant near La Salle, when he overheard two men bad-mouthing and apparently angry at Domino Lux.  He ignored the comments of the two. When he arrived at his boarding house, he mentioned the remarks to his two other brods while watching television. These two brods had earlier finished eating their dinner at Manang’s. Then, the three, together with four other persons went back to Manang’s and confronted the two who were still in the restaurant.  By admission of respondent Bungubung in his testimony, one of the two was a member of the Tau Gamma Phi Fraternity.  There was no rumble or physical violence then.

After this incident, a meeting was conducted between the two heads of the fraternity through the intercession of the Student Council.  The Tau Gamma Phi Fraternity was asking for an apology.  “Kailangan ng apology” in the words of respondent Aguilar.  But no apology was made.

On March 25, 1995, Ten minutes before his next class at 6:00 p.m.,   James Yap went out of the campus using the Engineering Gate to buy candies across Taft Avenue.  As he was about to re-cross Taft Avenue, he heard heavy footsteps at his back.  Eight to ten guys were running towards him.  He panicked.  He did not know what to do.  Then, respondent Bungubung punched him in the head with something heavy in his hands – “parangknuckles.”  Respondents Reverente and Lee were behind Yap, punching him.  Respondents Bungubung and Valdes who were in front of him, were also punching him.  As he was lying on the street, respondent Aguilar kicked him.  People shouted; guards arrived; and the group of attackers left. Yap could not recognize the other members of the group who attacked him.  With respect to respondent Papio, Mr. Yap said “hindi ko nakita ang mukha niya, hindi ko nakita sumuntok siya.”  What Mr. Yap saw was a long haired guy also running with the group.

The mauling incidents were a result of a fraternity war.  The victims, namely: petitioner James Yap and Dennis Pascual, Ericson Cano, and Michael Perez, are members of the “Domino Lux Fraternity,” while the alleged assailants, private respondents Alvin Aguilar, James Paul Bungubung, Richard Reverente and Roberto Valdes, Jr. are members of “Tau Gamma Phi Fraternity,” a rival fraternity.

The next day, March 30, 1995, petitioner Yap lodged a complaint[2][7] with the Discipline Board of DLSU charging private respondents with “direct assault.”  Similar complaints[3][8]were also filed by Dennis Pascual and Ericson Cano against Alvin Lee and private respondents Valdes and Reverente.  Thus, cases entitled “De La Salle University and College of St. Benilde v. Alvin Aguilar (AB-BSM/9152105), James Paul Bungubung (AB-PSM/9234403), Robert R. Valdes, Jr. (BS-BS-APM/9235086), Alvin Lee (EDD/9462325), Richard Reverente (AB-MGT/9153837) and Malvin A. Papio (AB-MGT/9251227)” were docketed as Discipline Case No. 9495-3-25121.

The Director of the DLSU Discipline Office sent separate notices to private respondents Aguilar, Bungubung and Valdes, Jr. and Reverente informing them of the complaints and requiring them to answer. Private respondents filed their respective answers.[4][9]

Said notices  issued by De La Salle Discipline Board uniformly stated as follows:

Please be informed that a joint and expanded Discipline Board had been constituted to hear and deliberate the charge against you for violation of CHED Order No. 4 arising from the written complaints of James Yap, Dennis C. Pascual, and Ericson Y. Cano.

You are directed to appear at the hearing of the Board scheduled on April 19, 1995 at 9:00 a.m. at the Bro. Connon Hall for you and your witnesses to give testimony and present evidence in your behalf.  You may be assisted by a lawyer when you give your testimony or those of your witnesses.

On or before April 18, 1995, you are further directed to provide the Board, through the Discipline Office, with a list of your witnesses as well as the sworn statement of their proposed testimony.

Your failure to appear at the scheduled hearing or your failure to submit the list of witnesses and the sworn statement of their proposed testimony will be considered a waiver on your part to present evidence and as an admission of the principal act complained of.

During the proceedings before the Board on April 19 and 28, 1995, private respondents interposed the common defense of alibi. No full-blown hearing was conducted nor the students allowed to cross-examine the witnesses against them.

On May 3, 1995, the DLSU-CSB Joint Discipline Board issued a Resolution[5][18] finding private respondents guilty.  They were meted the supreme penalty of automatic expulsion,[6][19] pursuant to CHED Order No. 4.[7][20]  The dispositive part of the resolution reads:

WHEREFORE, considering all the foregoing, the Board finds respondents ALVIN AGUILAR (AB-BSM/9152105), JAMES PAUL BUNGUBUNG (AB-PSM/9234403), ALVIN LEE (EDD/94623250) and RICHARD V. REVERENTE (AB-MGT/9153837) guilty of having violated CHED Order No. 4 and thereby orders their automatic expulsion.

In the case of respondent MALVIN A. PAPIO (AB-MGT/9251227), the Board acquits him of the charge.

I  S S U E 

Were private respondents accorded due process of law because there was no full-blown hearing nor were they allowed to cross-examine the witnesses against them?

H E L D:

Private respondents’ right to due process of law  was not violated.

In administrative cases, such as investigations of students found violating school discipline, “[t]here are withal minimum standards which must be met before to satisfy the demands of procedural due process and these are: that (1) the students must be informed in writing of the nature and cause of any accusation against them; (2) they shall have the right to answer the charges against them and with the assistance if counsel, if desired;       (3) they shall be informed of the evidence against them; (4) they shall have the right to adduce evidence in their own behalf; and (5) the evidence must be duly considered by the investigating committee or official designated by the school authorities to hear and decide the case.”[8][66]

Where a party was afforded an opportunity to participate in the proceedings but failed to do so, he cannot complain of deprivation of due process.[9][67]  Notice and hearing is the bulwark of administrative due process, the right to which is among the primary rights that must be respected even in administrative proceedings.[10][68]  The essence of due process is simply an opportunity to be heard, or as applied to administrative proceedings, an opportunity to explain one’s side or an opportunity to seek reconsideration of the action or ruling complained of.[11][69]  So long as the party is given the opportunity to advocate her cause or defend her interest in due course, it cannot be said that there was denial of due process.[12][70]

A formal trial-type hearing is not, at all times and in all instances, essential to due process – it is enough that the parties are given a fair and reasonable opportunity to explain their respective sides of the controversy and to present supporting evidence on which a fair decision can be based.[13][71]  “To be heard” does not only mean presentation of testimonial evidence in court – one may also be heard through pleadings and where the opportunity to be heard through pleadings is accorded, there is no denial of due process.[14][72]

Private respondents were duly informed in writing of the charges against them by the DLSU-CSB Joint Discipline Board through petitioner Sales.  They were given the opportunity to answer the charges against them as they, in fact, submitted their respective answers.  They were also informed of the evidence presented against them as they attended all the hearings before the Board.  Moreover, private respondents were given the right to adduce evidence on their behalf and they did.  Lastly, the Discipline Board considered all the pieces of evidence submitted to it by all the parties before rendering its resolution in Discipline Case No. 9495-3-25121.

Private respondents cannot claim that they were denied due process when they were not allowed to cross-examine the witnesses against them.  This argument was already rejected in Guzman v. National University[15][73] where this Court held that “x x x the imposition of disciplinary sanctions requires observance of procedural due process.  And it bears stressing that due process in disciplinary cases involving students does not entail proceedings and hearings similar to those prescribed for actions and proceedings in courts of justice.  The proceedings in student discipline cases may be summary; and cross examination is not, x x x an essential part thereof.”

GUZMAN VS. NU, 142 SCRA 706

 

                 GUZMAN VS. NATIONAL UNIVERSITY

                 G.R. No. L-68288, July 11, 1986

FACTS:

Petitioners who are students of the National University were barred from enrolment. The school claims that their scholastic standing is poor and that they have been involved in activities that have disrupted classes and had conducted mass actions without the required permits.

HELD:

a.   It is apparent that despite the accusations of alleged violations hurled by the school against the petitioners, the fact is that it had never conducted proceedings of any sort to determine whether or not petitioners-students had indeed led or participated “in activities within the university premises, conducted without prior permit from school authorities, that disturbed or disrupted classes therein”.

Also apparent is the omission of respondents to cite any duly published rule of theirs by which students may be expelled or refused re-enrollment for poor scholastic standing.

b.   Under the Education Act of 1982, students have the right “to freely choose their field of study subject to existing curricula and to continue their course therein up to graduation, EXCEPT in case of academic deficiency, or violation of disciplinary regulations.”

The petitioner were denied of this right, and were being disciplined without due process, in violation of the admonition in the Manual of Regulations for Private Schools that “no penalty shall be imposed upon any student except for cause as defined in *** (the) Manuel and/or in the school rules and regulations as duly promulgated and only after due investigation shall have been conducted. It has already been held in Berina vs. Philippine Maritime Institute, 117 SCRA 581, that it is illegal of a school to impose sanctions on students without conducting due investigation.

c.   Of course, all schools have the power to adopt and enforce its rules. In fact the maintenance of good school discipline is a duty specifically enjoined on every private school. The Manual of Regulations for Private Schools provides that:

“* * The school rules governing discipline and the corresponding sanctions therefor must be clearly specified and defined in writing and made known to the students and/or their parents or guardians. Schools shall have the authority and prerogative to promulgate such rules and regulations as they may deem necessary from time to time effective as of the date  of their promulgation unless otherwise specified.”

d.   The imposition of disciplinary sanctions requires observance of procedural due process. Due process in disciplinary cases involving students:

a. need not entail proceedings and hearing similar to those prescribed for actions and proceedings in court of justice;

b. the proceedings may be summary;

c. cross-examination is not an essential part thereof.

But the S.C. said that the following minimum standards must be met to satisfy the demands of procedural due process:

1.   the students must be informed in writing of the nature and cause of any accusation against them;

     2.   they shall have the right to answer the charges against them, with the assistance of counsel;

     3.   they shall be informed of the evidence against them;

     4.   they shall have the right to adduce evidence in their own behalf;

     5.   the evidence must be duly considered by the investigating committee or official designated by the school authorities to hear and decide the case.

a.            BERINA VS. PMI, September 30, 1982

Due process in the dismissal of employees

   Requisites of Due Process before the NLRC

1.            Notice; and

2.            Hearing

a.            MGG  Marine Services vs. NLRC, 259 SCRA 664

b.            Philippine Savings Bank vs. NLRC, 261 SCRA 409

c.            RAYCOR AIR CONTROL VS. NLRC, 261 SCRA 589

d.            WALLEM MARITIME SERVICES VS. NLRC, 263 SCRA 174

e.            SAMILLANO VS. NLRC, 265 SCRA 788

f.             STOLT-NIELSEN VS. NLRC, 264 SCRA 307

g.            GARCIA VS. NLRC, 264 SCRA 261

4.            Effect of a Motion for Reconsideration to violation of the right to due process

a.            CASUELA VS. OFFICE OF THE OMBUDSMAN, 276 SCRA 635

b.            CORDENILLO VS. EXECUTIVE SECRETARY, 276 SCRA 652

5.            In administrative proceedings, does due process require that a party be assisted by counsel and be able to cross-examine the witnesses?

LUMIQUED VS. EXENEA, 282 SCRA 125

          There is no law, whether the Civil Service Act or the Administrative Code of 1987, which provides that a respondent in an administrative case should be assisted by counsel in order that the proceedings therein is considered valid. Not only, that, petitioner herein was given the opportunity several times to engage the services of a lawyer to assist him but he confidently informed the investigators that he could protect himself.

Administrative Due Process

ATTY. ROMEO ERECE VS. LYN MACALINGAY, ET AL., G.R. No. 166809, April 22, 2008

THE FACTS:

Petitioner is the Regional Director of the Commission on Human Rights (CHR) Region I, whose office is located in San Fernando City, La Union.  Respondent employees of the CHR Region I filed an Affidavit-Complaint dated October 2, 1998 against petitioner alleging that he denied them the use of the office vehicle assigned to petitioner, that petitioner still claimed transportation allowance even if he was using the said vehicle, and that he certified that he did not use any government vehicle, when in fact he did, in order to collect transportation allowance.

Respondent filed his answer denying  the allegations against him.

After a fact-finding investigation, the CSC Proper in CSC Resolution No. 99-1360 dated July 1, 1999 charged petitioner with Dishonesty and Grave Misconduct for using a government vehicle in spite of his receipt of the monthly transportation allowance and for certifying that he did not use any government vehicle, when in fact, he did, in order to receive the transportation allowance.

Pertinent portions of the formal charge read:

1.       That despite the regular receipt of Erece of his monthly Representation and Transportation Allowance (RATA) in the amount of P4,000.00, he still prioritizes himself in the use of the office vehicle (Tamaraw FX) in spite of the directive from the Central Office that he cannot use the service vehicle for official purposes and at the same time receive his transportation allowance;

2.       That Erece did not comply with the directive of the Central Office addressed to all Regional Human Rights Directors, as follows: ‘to regularize your receipt of the transportation allowance component of the RATA to which you are entitled monthly, you are hereby directed to immediately transfer to any of your staff, preferably one of your lawyers, the memorandum receipt of the vehicle(s) now still in your name;’

3.       That he certified in his monthly liquidation of his RATA that he did not use any government vehicle for the corresponding month, which is not true because he is the regular user of the government vehicle issued to CHR-Region I.

The foregoing facts and circumstances indicate that government service has been prejudiced by the acts of Erece.

WHEREFORE, Romeo L. Erece is hereby formally charged with Dishonesty and Grave Misconduct.  Accordingly, he is given five (5) days from receipt hereof to submit his Answer under oath and affidavits of his witnesses, if any, to the Civil Service Commission-Cordillera Administrative Region (CSC-CAR).  On his Answer, he should indicate whether he elects a formal investigation or waives his right thereto.  Any Motion to Dismiss, request for clarification or Bills of Particulars shall not be entertained by the Commission.  Any of these pleadings interposed by the respondent shall be considered as an Answer and shall be evaluated as such.  Likewise, he is advised of his right to the assistance of counsel of his choice.[16][4]

After a formal investigation of the case, the CSC issued Resolution No. 020124, dated January 24. 2002, finding petitioner guilty of dishonesty and conduct prejudicial to the best interest of the service and penalizing him with dismissal from the service.

Petitioner filed a petition for review of the CSC Resolution with the CA.

In the Decision promulgated on January 7, 2005, the CA upheld the CSC Resolution, the dispositive portion of which reads:

WHEREFORE, in view of the foregoing, the petition is DENIED and the assailed Resolutions of the Civil Service Commission are hereby AFFIRMED.[17][5]

Hence, this petition.

I S S U E:

Petitioner raised the issue of violation of his right to due process because he was denied the right to cross-examine the respondents on their affidavit-complaint.

H e l d:

Petitioner contends that he was denied due process as he was not afforded the right to cross-examine his accusers and their witnesses.  He stated that at his instance, in order to prevent delay in the disposition of the case, he was allowed to present evidence first to support the allegations in his Counter-Affidavit.  After he rested his case, respondents did not present their evidence, but moved to submit their position paper and formal offer of evidence, which motion was granted by the CSC over his (petitioner’s) objection.   Respondents then submitted their Position Paper and Formal Offer of Exhibits.

Petitioner submits that although he was allowed to present evidence first, it should not be construed as a waiver of his right to cross-examine the complainants.  Although the order of presentation of evidence was not in conformity with the procedure, still petitioner should not be deemed to have lost his right to cross-examine his accusers and their witnesses.  This may be allowed only if he expressly waived said right.

The Court agrees with the CA that petitioner was not denied due process when he failed to cross-examine the complainants and their witnesses since he was given the opportunity to be heard and present his evidence. In administrative proceedings, the essence of due process is simply the opportunity to explain one’s side.[18][6]

Velez v. De Vera[19][7]   held:

Due process of law in administrative cases is not identical with “judicial process” for a trial in court is not always essential to due process.  While a day in court is a matter of right in judicial proceedings, it is otherwise in administrative proceedings since they rest upon different principles.  The due process clause guarantees no particular form of procedure and its requirements are not technical.  Thus, in certain proceedings of administrative character, the right to a notice or hearing are not essential to due process of law.  The constitutional requirement of due process is met by a fair hearing before a regularly established administrative agency or tribunal. It is not essential that hearings be had before the making of a determination if thereafter, there is available trial and tribunal before which all objections and defenses to the making of such determination may be raised and considered.  One adequate hearing is all that due process requires. . . .

The right to cross-examine is not an indispensable aspect of due process.  Nor is an actual hearing always essential. . . . [20][8]

The dismissal of the petitioner from the government is valid.

[1][1]  College of Saint Benilde is an educational institution which is part of the De La Salle System.

[2][7]  Id. at 127.

[3][8]  Id. at 128-129.

[4][9]  Id. at 130-133.

[5][18] Id. at 139-150.

[6][19] Manual of Regulations for Private Schools (1992), Sec. 77(c) provides that expulsionis “an extreme penalty of an erring pupil or student consisting of his exclusion from admission to any public or private school in the Philippines and which requires the prior approval of the Secretary.  The penalty may be imposed for acts or offenses constituting gross misconduct, dishonesty, hazing, carrying deadly weapons, immorality, selling and/or possession of prohibited drugs such as marijuana, drug dependency, drunkenness, hooliganism, vandalism, and other serious school offenses such as assaulting a pupil or student or school personnel, instigating or leading illegal strikes or similar concerned activities resulting in the stoppage of classes, preventing or threatening any pupil or student or school personnel from entering the school premises or attending classes or discharging their duties, forging or tampering with school records or school forms, and securing or using forged school records, forms and documents.”

[7][20] Rollo, pp. 151-153.

[8][66] Guzman v. National University, G.R. No. L-68288, July 11, 1986, 142 SCRA 699, 706-707.

[9][67] Bautista v. Court of Appeals, G.R. No. 157219, May 28, 2004, 430 SCRA 353.

[10][68] Globe Telecom, Inc. v. National Telecommunications Commission, G.R. No. 143964, July 26, 2004, 435 SCRA 110.

[11][69] Valiao v. Court of Appeals, G.R. No. 146621, July 30, 2004, 435 SCRA 543.

[12][70] Barza v. Dinglasan, Jr., G.R. No. 136350, October 25, 2004, 441 SCRA 277.

[13][71] Seastar Marine Services, Inc. v. Bul-an, Jr., G.R. No. 142609, November 25, 2004, 444 SCRA 140.

[14][72] Batul v. Bayron, G.R. Nos. 157687 & 158959, February 26, 2004, 424 SCRA 26.

[15][73] Supra note 66, at 706.

[16][4]     Id. at 35-36.

[17][5]     Id. at 34.

[18][6]     Velez v. De Vera, A.C. No. 6697, July 25, 2006, 496 SCRA 345.

[19][7]     Id. at  387-388.

[20][8]     Emphasis supplied.

 

CONSTITUTIONAL LAW

CHAPTER III – THE EQUAL PROTECTION CLAUSE

…nor shall any person be denied the equal protection of the laws.

1. The scope of the equal protection clause, 95 SCRA      420

2.  Equal protection of the law, 13 SCRA 266

3. Requisites for a valid classification-

Read:

1.            People vs. Cayat, 68 Phil. 12

a.            There must be real and substantial distinctions;

b.            It must be germane tot he purposes of the law;

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

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

2. Read again, Association of Small Landowners vs.  Sec. of Agrarian reform, July 14, 1989

4. Equal protection in general-

Read:

1.            P. vs. Vera, 65 Phil. 56

2.            TIU VS. CA, 301 SCRA 278  (There is real and substantial distinction between business inside  the Subic Special Economic Zone and outside wherein those inside are exempt from other taxes as a result of the policy of the government to accelerate the development of the portion of Subic left by the Americans)

3.            MELDA MARCOS VS. CA, 278 SCRA 843

4.            HIMAGAN VS. PEOPLE, October 7, 1994

The fact that policemen charged with a criminal offense punishable by more than 6 years are to be suspended during the entire duration of the case unlike other government employees is valid since it rests on valid classification because policemen carry weapons and the badge of the law which can be used to harass or intimidate witnesses against them.

2-A  Gumabon vs. Director of Prisons, 37 SCRA 420

2-b. PANFILO LACSON VS. SANDIGANBAYAN, January 20, 1999

2-b-1. BASCO VS. PAGCOR, May 14, 1991

No violation of the equal protection clause if Congress would legalize cock-fighting and horse racing since police power could regulate gambling.

1.            PHILIPPINE JUDGES ASSOCIATION VS. PRADO, November 11, 1993

There is no valid distinction for a law removing the franking privilege of the judiciary while leaving the same to the Executive and Legislative despite the fact that there is considerable volume of mails from the courts. Loss of revenue is not a valid ground unless it would be withdrawn to all government offices.

FRANCISCO TATAD vs.  THE SECRETARY OF DEPARTMENT OF ENERGY, G. R. No. 124360, November 5, 1997

 

EDCEL LAGMAN, JOKER ARROYO, ENRIQUE GARCIA, WIGBERTO TANADA,  FLAG HUMAN RIGHTS FOUNDATION vs. HON. RUBEN TORRES, HON. FRANCISCO VIRAY, PETRON, FILIPINAS SHELL and CALTEX PHILIPPINES, G.R. No. 127867, November 5, 1997.

PUNO, J.

These petitions challenge the constitutionality of Republic Act No. 8180 entitled “An Act Deregulating the Downstream Oil Industry and for Other Purposes”. RA   8180 seeks to end  26 years of  government regulation of the downstream  oil industry.

The facts:

1.            Prior to 1971, no government agency  was regulating the oil industry. New players were free to enter the oil market without any government interference. There were four (4) refining companies at that time.  SHELL, CALTEX, BATAAN REFINING COMPANY and FILOIL MARKETING and six (6) petroleum marketing companies: ESSO, FILOIL, CALTEX, GETTY, MOBIL and SHELL;

2.            In 1971, the country was driven to its knees by the crippling oil crisis and in order to remedy the same,  the OIL INDUSTRY COMMISSION ACT was enacted  REGULATING the oil industry ;

3.            On November 9, 1973, then President Marcos  created the Philippine national Oil Corporation (PNOC) t break the control of the foreigners to the oil industry. It  acquired ownership of ESSO Philippines and Filoil and likewise bought controlling shares of the Bataan Refining Corporation. PNOC then operated under the business name PETRON CORPORATION and for the first time, there was a Filipino presence in the Philippine oil market;

4.            In 1984, Pres. Marcos through section 8 of PD 1956 created the OIL PRICE STABILIZATION FUND (OPSF) to cushion the effects of frequent changes in the price of oil caused by the exchange rate adjustments or increase of the world market prices crude oil and imported petroleum products;

5.            By 1985, only three (3) oil companies were left operating in the country. These are: CALTEX, FILIPINAS SHELL and PNOC;

6.            In May, 1987, Pres. Corazon Aquino signed Executive Order No. 172 creating the ENERGY REULATORY BOARD to regulate the business of importing, exporting, shipping, transporting, processing, refining, marketing and distributing energy resources “WHEN WARRANTED AND ONLY  WHEN PUBLIC NECESSITY REQUIRES”. The Board was empowered to “fix and regulate the prices of petroleum products and other related merchandise;

7.            In March, 1996, Congress enacted RA 8180 deregulating the Oil Industry not later than March, 1997. The law requires that the implementation of the regulation, shall as far as practicable be made at a time WHEN THE PRICES OF CRUDE OIL AND PETROLEUM PRODUCTS IN THE WORLD ARE DECLINING AND WHEN THE EXCHANGE RATE OF THE PESO IN RELATION TO THE US DOLLAR; IS STABLE;

8.            On February 8, 1997, Executive Order No. 372  was issued by President Fidel  Ramos  implementing full deregulation ON THE GROUND THAT THE OPSF FUND HAS BEEN DEPLETED;

9.            The petitioners questioned the constitutionality of RA 8180 on the following grounds:

a.            Section 5 of RA 8180 violates the equal protection clause of the Constitution;

b.            The imposition of different tariff rates does not deregulate the oil industry and even bars the entry of other players in the oil industry but instead effectively protects the interest  of the oil companies with existing refineries. Thus, it runs counter to the objective of the law “to foster a truly competitive market”; The inclusion of  Sec. 5 [b]  providing for tariff differential violates Section 26 [1] of Art. VI of the 1987 Constitution which requires  every law to have only one subject which should be expressed in the title thereof;

c.            Section 15 of RA 8180 and EO No. 392 are unconstitutional  for undue delegation of legislative power to the President and the Secretary of Energy;

d.            EO 392 implementing the full deregulation of the oil industry is unconstitutional since it is arbitrary and unreasonable since it was enacted due to the alleged depletion of the OPSF fund, a condition which is not found in RA No. 8180;

e.            Section 15  of RA 8180  is unconstitutional for it allows the formation of a de facto cartel among three existing oil companies in violation of the Constitution prohibiting against monopolies, combination in restraint of trade and unfair competition.

The provisions of the law being questioned as unconstitutional are Section 5 [b] and Section 15 which provide:

“Section 5 [b] Any law to the contrary notwithstanding and starting with the effectivity of this Act, tariff duty shall be imposed and collected on imported crude oil at the rate of 3% and imported refined petroleum products at the rate of seven (7%) percent, except fuel oil and LPG, the rate for which shall be the same; Provided, that beginning on January 1, 2004, the tariff rate on imported crude oil and refined petroleum products shall be the same; Provided, further, that this provision  may be amended only by an Act of Congress.”

x x x

“Section 15. Implementation of  full deregulation. Pursuant to Section 5 [e] of RA 7638, the DOE, upon approval of the President, implement full deregulation of the downstream oil industry not later than March, 1997. As far as practicable, the DOE shall time the full deregulation when the prices of crude oil and petroleum products in the world market are declining and when the exchange rate of the peso in relation to the US dollar is stable.”

The issues are:

Procedural Issues:

a.            Whether or not the petitions raise justiciable controversy; and

b.            Whether or not  the petitioners  have the standing to question the validity of the subject law and executive order.

Substantive Issues:

a.            Whether or not Section 5 of RA 8180 violates the one title—one subject requirement of the Constitution;

b.            Whether or not Section 5 of RA 8180 violates the equal protection clause of the Constitution;

c.            Whether section 15 violates the  constitutional prohibition on undue delegation of legislative power;

d.            Whether or not EO 392 is arbitrary and unreasonable; and

e.            Whether or not RA 8180 violates the constitutional prohibition against monopolies, combinations in restraint of trade and unfair competition.

HELD:

1.            Judicial power includes not only the duty of the courts to settle controversies involving rights but also the duty to determine  whether or not there has been grave abuse of  discretion amounting to lack or excess of jurisdiction on the part of any agency or branch of the government. The courts, as guardians of the Constitution, have the inherent  authority to determine whether a statute enacted by the legislature transcends the limit imposed by the fundamental law. When the statute violates the Constitution, it is not only the right  of the judiciary to declare such act as unconstitutional and void.

2.            The question of locus standi must likewise fall . As held in KAPATIRAN NG MGA NAGLILINGKOD SA PAMAHALAAN NG PILIPINAS, INC. VS. TAN, it was held that:

“Objections to taxpayer’s suit for lack of sufficient personality, standing, or interest are , however, in the main procedural matters. CONSIDERING THE IMPORTANCE OF THE CASES TO THE PUBLIC, AND IN KEEPING WITH THE COURT’S DUTY TO DETERMINE WHETHER OR NOT THE OTHER BRANCHEDS OF GOVERNMENT HAVE KEPT THEMSELVES WITHIN THE LIMITS OF THE CONSTITUTION AND  THE LAWS AND THAT THEY HAVE NOT ABUSE THE DISCRETION GIVEN TO THEM, THE COURT HAS BRUSHED ASIDE TECHNICALITIES OF PROCEDURE AND HAS TAKEN COGNIZANCE OF THESE PETITIONS.”

There is no disagreement on the part of the parties as to the far-reaching importance of the validity of RA 8180. Thus, there is no good sense in being hyper-technical on the standing of the petitioners for they pose issues which are significant to our people and which deserve our forthright resolution.

3.            It is contended that Section 5[b[ of RA 8180 on tariff differentials violates the Constitutional prohibition requiring every law to have only one subject which should be expressed in its title. We do not concur with this contention. As a policy, the Court has adopted a liberal construction of the one title—one subject rule. We have consistently ruled that the title need not mirror, fully index or catalogue all contents and minute details of a law. A law having a single general subject indicated in the title may contain a number of provisions, no matter how diverse they may be, so long as they are not inconsistent with or foreign to the general subject, and may be considered in furtherance of such subject by providing for the method and means of carrying out the general subject. We hold that Section 5 providing for tariff differential is germane to the subject  of RA 8180 which is the deregulation of the downstream oil industry.

4.            The contention that there is undue delegation of legislative power when it authorized the President to determine when deregulation starts is without merit. The petitioners claim that the phrases “as far as practicable”, “decline of crude oil prices in the world market” and “stability of the peso exchange rate to the US dollar” are ambivalent, unclear and inconcrete in meaning and could not therefore provide the “determinate or determinable standards” which can guide the President in his decision to fully deregulate the oil industry. The power of Congress to delegate the execution of laws has long been settled by this Court in 1916 in the case of COMPANIA GENERAL DE TABACOS DE FILIPINA VS. THE BOARD OF PUBLIC UTILITY COMMISSIONERS WHERE IT WAS HELD THAT:

“The true distinction is between the delegation of power to make the law , which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter, no valid objection can be made.”

wo tests have been  developed to determine whether the delegation of the power to execute laws does not involve the abdication of the power to make law itself. We delineated the metes and bounds of these tests in EASTERM SHIPPING LINES VS. POEA, thus:

There are two accepted tests to determine whether or not there is a valid delegation of legislative power , viz: the completeness test and the sufficiency of standard test. Under the first test, the law must be complete in all its terms and conditions when it leaves the legislative such that when it reaches the delegate, the only thing he will do is enforce it. Under the sufficient standard test, there must be adequate guidelines or limitations in the law to map out the boundaries of the delegate’s authority and prevent the delegation from running riot. BOTH TESTS ARE INTENDED TO PREVENT A TOTAL TRANSFERENCE OF LEGISLATIVE AUTHORITY TO THE DELEGATE, WHO IS NOT ALLOWED TO STEP INTO THE SHOES OF THE LEGISLATURE AND EXERCISE A POWER ESSENTIALLY LEGISLATIVE.”

The validity of delegating legislative power is now a quiet area in our constitutional landscape because such has become an inevitability in light of the increasing complexity of the task of government. In fact, in HIRABAYASHI VS. UNITED STATES, the Supreme Court through Justice ISAGANI CRUZ held that  “even if the law does not expressly pinpoint the standard, THE COURTS WILL BEND BACKWARD TO LOCATE THE SAME ELSEWHERE IN ORDER TO SPARE THE STATUTE; IF IT CAN, FROM CONSTITUTIONAL INFIRMITY.”

5.            EO  No. 392 failed  to follow faithfully the standards set by RA 8180 when it considered the extraneous factor of depletion of the OPSF Fund. The misapplication of this extra factor cannot be justified. The executive is bereft of any right to alter either by addition or subtraction the standards set by RA 8180 for it has no power to make laws. To cede to the executive the power to make laws would invite tyranny and to transgress the separation of powers. The exercise of delegated power is given a strict scrutiny by courts for the delegate is a mere agent whose action cannot infringe the terms of the agency.

6.            Section 19 of Article XII of the Constitution provides:

“The state shall regulate or prohibit monopolies when the public interests so requires. No combinations in restraint of trade or unfair competition shall be allowed.”

A monopoly  is a privilege or peculiar advantage vested in one or more persons or companies, consisting of the exclusive  right or power to carry on a particular business or trade, manufacture a particular article or control the sale or the whole market structure in which one or  only a few firms dominate the total sales of a product or service. On the other hand, a combination in restraint of trade is an agreement or understanding between two or more persons, in the form of contract, trust, pool, holding company, for the purpose of unduly restricting  competition, monopolizing trade and commerce in  a certain commodity, controlling its production, distribution and price or otherwise interfering with freedom of trade without statutory authority. Combination in restraint of  trade refers to means while monopoly refers to the end.

Respondents  aver that the 4% tariff differential is designed to encourage new entrants to invest in refineries. They stress that the inventory requirement is meant to guaranty continuous domestic supply of  petroleum and to discourage fly-by-night operators. They also claim that the prohibition against predatory pricing is intended to protect prospective entrants.

The validity of the assailed provisions of RA 8180 has to be decided in the light of the letter and spirit of Section 19, Art. XII of the Constitution. While the Constitution embraced free enterprise as an economic creed, it did not prohibit per se the operation of monopolies which can, however,  be regulated in the public interest. This distinct free enterprise system is dictated by the need to achieve the goals of our national economy as defined under Section 1, Art. XII of the Constitution which are: more equitable distribution of opportunities, income and wealth; a sustained increase in the amount of goods and services produced by the nation for all, especially the underprivileged. It also calls for the State to protect Filipino enterprises against unfair and trades practices.

The provisions on 4% tariff differential, predatory pricing and inventory requirement blocks the entry of other players and give undue advantage to the 3 oil companies resulting to monopolies or unfair competition. This is so because it would take billions for new players to construct refineries, and to have big inventories. This would effectively prevent new players.

In the case at bar, it cannot be denied that our oil industry is operated and controlled by an oligopoly (dominated by a handful of players) and a foreign oligopoly at that. As the dominant players, SHELL, CALTEX & PETRON boast of  existing refineries of various capacities. The tariff differential of 4% works to their immense advantage. Yet, this is only one edge on tariff differential. THE OTHER EDGE CUTS AND CUTS DEEP IN THE HEART OF THEIR COMPETITORS. IT ERECTS HIGH BARRIERS TO NE PLAYERS. New players in order to equalize must build their refineries worth billions of pesos. Those without refineries had to compete with a higher cost of 4%.They will be competing on an uneven field.

The provision on inventory widens the advantage of PETRON, SHELL AND CALTEX against prospective new players. The three (3) could easily comply with the inventory requirement in view of their numerous storage facilities. Prospective competitors  again find compliance oft his requirement  difficult because of prohibitive cost in constructing new  storage facilities. The net effect would be to effectively prohibit the entrance of new players.

Now comes the prohibition on predatory pricing or “selling or offering to sell any product at a price unreasonably below the industry average cost so as to attract customers to the detriment of the competitors”. According to HOVENKAMP:

“The rationale for predatory pricing is the sustaining of losses today that will give a firm monopoly profits in the future. The monopoly profits will never materialize, however, if the market is flooded with new entrants as soon as the successful predator attempts to raise its price. Predatory pricing will be profitable only if the market contains significant barriers to new entry.”

Coupled with the 4% tariff differential and the inventory requirement, the predatory pricing is a significant barrier which discourage new players to enter the oil market thereby promoting unfair competition, monopoly and restraint of trade which are prohibited by the Constitution.

________________________

2-d.LACSON VS. SANDIGANBAYAN, January 20, 1999

3. Taxicab Operators vs. BOT, September 30,l982

4. Bautista vs. Juinio,127 SCRA 329

5. Dumlao vs. COMELEC, 95 SCRA 392

6. Villegas vs. Hiu, 86 SCRA 270

7. Ceniza vs. COMELEC, 95 SCRA 763

8. UNIDO vs. COMELEC, 104 SCRA 38

9. Nunez vs. Sandiganbayan, 111 SCRA 433(Read also the dissenting opinion of Justice Makasiar

10. Sison vs. Ancheta, 130 SCRA 654

11. Citizens Surety vs. Puno, 119 SCRA 216

12. Peralta vs. COMELEC, 82 SCRA 30

13. Hawaiian-Phil. Co. vs. Asociacion, 151 SCRA 306

14. Ormoc Sugar Co. vs. Ormoc City, 22 SCRA 603

15. Flores vs. COMELEC, 184 SCRA 484

CONSTITUTIONAL LAW

CHAPTER IV – THE SEARCH AND SEIZURE PROVISION

Section 2. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.

NOTE: Applicable provisions of the Human Security Act/Anti-Terrorism Law, Republic Act No. 9372, Approved on March 6, 2007 and effective on July 15, 2007 (This Law shall be automatically suspended one (1) month before and two (2) months after the holding of any election)

Sec. 18. Period of detention without judicial warrant of arrest.- The provisions of Article 125 of the Revised Penal Code, notwithstanding, any police or law enforcement personnel,who, having been duly authorized in writing by the Anti-Terrorism Council has taken custody of a person charged with or suspected of the crime of terrorism or the crime of  conspiracy to commit terrorism shall, WITHOUT INCURRING ANY CRIMINAL LIABILITY FOR DELAY IN THE DELIVERY OF DETAINED PERSONS TO THE PROPER JUDICIAL AUTHORITIES, DELIVER SAID CHARGED OR SUSPECTED PERSON TO THE PROPER JUDICIAL AUTHORITY WITHIN A PERIOD OF THREE (3) DAYS counted from the moment said charged or suspected person has been apprehended or arrested, detained, and taken into custody by the said  police, or law enforcement personnel: Provided, That the arrest of those suspected of the crime of terrorism or conspiracy to commit terrorism must result from the surveillance under Section 7 and examination of bank deposits under Section 27 pf this Act.

The police or law enforcement personnel concerned shall, before detaining the person suspected of the crime of terrorism, present him or her before any judge at the latter’s residence or office nearest the place where the arrest took place at any time of the day or night. It shall be the duty of the judge, among other things, to ascertain the identity of the police or law enforcement personnel  and the person or persons they have arrested and presented before him or her, to inquire of them the reasons why they have arrested the person and determine by questioning and personal observation whether or not the subject has been  subjected to any physical, moral or psychological torture by whom and why. The judge shall then submit a written report of what he/she had observed when the subject was brought before him to the proper court that has jurisdiction over the case of the person thus arrested.

The judge shall forthwith submit his report within 3 calendar days from the time the suspect was brought to his/her residence or office.

Immediately after taking custody  of a person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism, the police or law enforcement personnel shall notify in writing the judge of the court nearest the place of apprehension or arrest; provided, That where the arrest is made during Saturdays, Sundays, holidays or after office hours, the written notice shall be served at the residence of the judge nearest the place where the accused was arrested. The penalty of 10 years and 1 day to 12 years imprisonment shall be imposed upon the police or law enforcement personnel who fails to notify any judge as provided in the preceding paragraph.

Section 19. Period of Detention in the event of an actual or imminent terrorist attack.- In the vent of an actual or imminent terrorist attack,, suspects may not be detained for more than three days without the written approval of a municipal, city, provincial or regional official of a Human Rights Commission, or judge of the municipal, regional trial court, the Sandiganbayan or a justice of the Court of Appeals nearest the place of arrest. If the arrest is made during Saturdays, Sundays or holidays, or after office hours, the arresting police of law enforcement personnel shall bring the person thus arrested to the residence of any of the officials mentioned above that is nearest the place where the accused was arrested. The approval in writing of any of the said officials shall be secured by the police or law enforcement personnel concerned within five days after the date of the detention of the persons concerned; Provided, however, That within three days after the detention the suspects whose connection with the terror attack or threat is not established, shall be released immediately.

Section 26 provides that persons who have been charged with terrorism or conspiracy to commit terrorism—even if they have been granted bail because evidence of guilt is not strong—can be:

  • Detained under house arrest;
  • Restricted from traveling; and/or
  • Prohibited from using any cellular phones, computers, or other means of communications with people outside their residence.

Section 39. Seizure and Sequestration.- The deposits and their outstanding balances, placements, trust accounts, assets, and records in any bank or financial institution, moneys, businesses, transportation and communication equipment, supplies and other implements, and property of whatever kind and nature belonging:

  • To any person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism;
  • to a judicially declared and outlawed terrorist organization or group of persons;
  • to a member of such judicially declared and outlawed organization, association or group of persons,

-shall be seized, sequestered, and frozen in order to prevent their use, transfer or conveyance for purposes that are inimical to the safety and security of the people or injurious to the interest of the State.

The accused or suspect may withdraw such sums as are reasonably needed by his family including the services of his counsel and his family’s medical needs upon approval of the court. He or she may also use any of his property that is under seizure or sequestration or frozen because of his/her indictment as a terrorist upon permission of the court for any legitimate reason.

Section 40. The seized, sequestered and frozen bank deposits…shall be deemed property held in trust by the bank or financial institution and that their use or disposition while the case is pending shall be subject to the approval of the court before which the case or cases are pending.

Section 41. If the person suspected as terrorist is acquitted after arraignment or his case dismissed before his arraignment by a competent court, the seizure…shall be lifted by the investigating body or the competent court and restored to him without delay. The filing of an appeal or motion for reconsideration shall not stay the release of said funds from seizure, sequestration and freezing.

If convicted, said seized, sequestered and frozen assets shall automatically forfeited in favor of the government.

Requisites of a valid search warrant

Read:

a. Essentials of a valid search warrant,145 SCRA          739

b. Validity of a search  warrant and the admissibility  of  evidence obtained in          violation thereof.

c.  The place to be searched as indicated in the warrant is controlling

            PEOPLE VS. CA, 291 SCRA 400

Narvasa, CJ

In applying for a search warrant, the police officers had in their mind the first four (4) separate apartment units at the rear of ABIGAIL VARIETY STORE in Quezon City to be the subject of their search. The same was not, however, what the Judge who issued the warrant had in mind, AND WAS NOT WHAT WAS ULTIMATELY DESCRIBED IN THE SEARCH WARRANT. As such, any evidence obtained from the place searched which is different from that indicated in the search warrant is inadmissible in evidence for any purpose and in any proceeding.

This is so because it is neither licit nor fair to allow police officers to search a place different from that stated in the warrant on the claim that the place actually searched—although not that specified in the search warrant—is exactly what they had in view when they applied for the warrant and had demarcated in their supporting evidence. WHAT IS MATERIAL IN DETERMINING THE VALIDITY OF A SEARCH IS THE PLACE STATED IN THE WARRANT ITSELF, NOT WHAT THE APPLICANTS HAD IN THEIR THOUGHTS, OR HAD REPRESENTED IN THE PROOFS THEY SUBMITTED TO THE COURT ISSUING THE WARRANT.  As such, it was not just a case of “obvious typographical error”, but a clear case of a search of a place different from that clearly and without ambiguity identified in the search warrant.

NOTE: Very Important: Where a search warrant is issued by one court and the criminal action base don the results of the search is afterwards commenced in another court, IT IS NOT THE RULE THAT A MOTION TO QUASH THE WARRANT (or to retrieve the things seized) MAY BE FILED ONLY IN THE ISSUING COURT—SUCH A MOTION MAY BE FILED FOR THE FIRST TIME IN EITHER THE ISSUING COURT OR THAT IN WHICH THE CRIMINAL PROCEEDING IS PENDING.

d. Validity of a warrantless search and seizure as a result of an informer’s tip. Note the two (2) conflicting decisions of the Supreme Court.

PEOPLE VS. ARUTA, 288 SCRA 626

On December 13, 1988, P/Lt. Abello of the Olongapo PNP was tipped off by an informer that Aling Rosa would be arriving from Baguio City  the following day with a large volume of marijuana. As a result of the tip,  the policemen waited for a Victory Bus from Baguio City near the PNB Olongapo, near Rizal Ave. When the accused got off, she was pointed to by the informer. She was carrying a traveling bag at that time. She was not acting suspiciously. She was arrested without a warrant.

The bag allegedly contained 8.5 kilos of marijuana. After trial, she was convicted and imposed a penalty of life imprisonment.

Issue:

Whether or not the marijuana allegedly taken from the accused is admissible in evidence.

Held:

             Warrantless search is allowed in the following instances:

1.            customs searches;

2.            searches of moving vehicle;

3.            seizure of evidence in plain view;

4.            consented searches;

5.            search incidental to a lawful arrest; and

6.            stop and frisk measures.

The above exceptions to the requirement of a search warrant, however, should not become unbridled licenses for law enforcement officers to trample upon the conditionally guaranteed and more fundamental right of persons against unreasonable search and seizures. The essential requisite of probable cause must still be satisfied before a warrantless search and seizure can be lawfully conducted. In order that the information received by the police officers may be sufficient to be the basis of probable cause, it must be based on reasonable ground of suspicion or belief a crime has been committed or is about to be committed.

The marijuana obtained  as a result of a warrantless search is inadmissible as evidence for the following reasons:

a.            the policemen had sufficient time to apply for a search warrant  but they failed to do so;

b.            the accused was not acting suspiciously;

c.            the accused’s identity was previously ascertained so applying for a warrant should have been easy;

d.            the accused in this case was searched while innocently crossing a street

Consequently, there was no legal basis for the police to effect a warrantless search of the accused’s bag, there being no probable cause and the accused’s not having been legally arrested. The arrest was made only after the accused was pointed to by the informant at a time when she was not doing anything suspicious. The arresting officers do not have personal knowledge that the accused was committing a crime at that time.

            Since there was no valid warrantless arrest, it logically follows that the subsequent search is similarly illegal, it being not incidental to a lawful arrest. This is so because if a search is first undertaken, and an arrest effected based on the evidence produced by the search, both such search and arrest would be unlawful, for being contrary to law.

This case is similar tot he case of PEOPLE VS. AMINNUDIN,  and PEOPLE VS. ENCINADA.

PEOPLE VS. MONTILLA, 284 SCRA 703

            On June 19, 1994, at about 2 p.m., SPO1 Talingting and SPO1 Clarin of the Dasmarinas, Cavite PNP were informed by an INFORMER that a drug courier would be arriving in Barangay Salitran, Dasmarinas, Cavite, from Baguio City, with an undetermined amount of marijuana. The informer likewise informed them that he could recognize said person.

            At about 4 in the morning of June 20, 1994, the appellant was arrested by the above-named police officers while alighting from a passenger jeepney  near a waiting shed in Salitran, Dasmarinas, Cavite, upon being pointed to by the informer. The policemen recovered 28 kilos of dried marijuana leaves. The arrest was without warrant.

            The trial court convicted the appellant for transporting marijuana based on the testimonies of the Above-named police officers without presenting the alleged informer.

Issue:

            Was the warrantless arrest valid?

Held:

            The accused claims that the warrantless search and seizure is illegal because the alleged information was received by the police on June 19, 1994 and therefore, they could have applied for a search warrant. The said contention is without merit considering that the information given by the informer is too sketchy and not detailed enough for the obtention of the corresponding arrest or search warrant. While there is indication that the informer knows the courier, the records do not show that he knew his name. On bare information, the police could not have secured a warrant from a judge.

            Furthermore, warrantless search is allowed in the following instances:

1.            customs searches;

2.            searches of moving vehicle;

3.            seizure of evidence in plain view;

4.            consented searches;

5.            search incidental to a lawful arrest; and

6.            stop and frisk measures.

Since the accused was arrested for transporting marijuana, the subsequent search on his person is justified. An arresting officer has the right to validly search and seize from the offender (1) dangerous weapons; and (2) those that may be used  as proof of the commission of the offense.

In the case at bar, upon being pointed to by the informer as the drug courier, the policemen requested the accused  to open and show them the contents of his bag and the cartoon he was carrying and he voluntarily opened the same and upon cursory inspection, it was found out that it contains marijuana. Hence the arrest.

The accused insists that it is normal for a person traveling with a bag and cartoon which should not elicit the slightest suspicion that he was committing a crime. In short, there was no probable cause for these policemen to think that he was committing a crime.

The said contention was considered without merit by the Supreme Court considering the fact that he consented to the search as well as the fact that the informer was a reliable one who had supplied similar information to the police in the past which proved positive.

(NOTE: The SC held that the non-presentation of the informer does not affect the case for the prosecution because he is not even the best witness. He is merely a corroborative witness to the arresting officers. )

JUSTICE PANGANIBAN:

To say that “reliable tips” from informers constitute probable cause for a warrantless arrest or search IS A DANGEROUS PRECEDENT AND PLACES IN GREAT JEOPARDY THE DOCTRINES LAID DOWN IN MANY DECISIONS MADE BY THIS COURT. (PEOPLE VS. BURGOS, 144 SCRA 1; PEOPLE VS. AMINNUDIN, 163 SCRA 402; PEOPLE VS. ENCINADA, October 2, 1997; PEOPLE VS. MENGOTE, 220 SCRA).

The case is similar to the case of People vs. Encimada where the appellant was searched without a warrant while disembarking from a ship on the strength of a tip from an informer received by the police the previous afternoon that the appellant would be transporting prohibited drugs. The search yielded a plastic package containing marijuana. On Appeal, the SC reversed the decision of conviction and held that Encinada did not manifest any suspicious behavior that would necessarily and reasonably invite the attention of the police.

ELI LUI, ET AL. VS. MATILLANO, May 27, 2004

Right against unreasonable searches and seizures; Mission Order does not authorize an illegal search. Waiver of the right against an unreasonable search and seizure.

In search of the allegedly missing amount of P45,000.00 owned by the employer, the residence of a relative of the suspect was forcibly open by the authorities by kicking the kitchen door to gain entry into the house. Thereafter, they confiscated different personal properties therein which were allegedly part of those stolen from the employer. They were in possession of a mission order but later on claimed that the owner of the house gave his consent to the warrantless search.  Are the things admissible in evidence? Can they be sued for damages as a result of the said warrantless search and seizure?

Held:

The right  against unreasonable searches and seizures is a personal right which may be waived expressly or impliedly. BUT A WAIVER BY IMPLICATION CANNOT BE PRESUMED. There must be clear and convincing evidence of an actual intention to relinquish the right. There must be proof of the following:

a.            that the right exists;

b.            that the person involved had knowledge, either constructive or actual, of the existence of said right;

c.            that the said person had an actual intention to relinquish the right.

Finally, the waiver must be made voluntarily, knowingly and intelligently in order that the said is to be valid.

The search was therefore held illegal and the members of the searching party held liable for damages in accordance with the doctrine laid down in Lim vs. Ponce de Leon and MHP Garments vs. CA.

e.  General or roving warrants

Read:

1.            Stonehill vs. Diokno,June 19,1967

Concepcion, C.J.

The petitioners are questioning the validity of a total of 42 search warrants issued on different dates against them and the corporations in which they are officers, directing the peace officer to search the persons above-named and/or the premises of their offices, warehouses and to seize and take possession of the following personal property, to wit:

“Books of accounts, financial records, vouchers, correspondence, receipts, ledgers, journals, typewriters and other documents or papers showing all business transactions including disbursement receipts, balance sheets and profit and loss statements”

since they are the subject of the offense of violating the CENTRAL BANK LAWS, TARIFF AND CUSTOMS LAWS, INTERNAL REVENUE CODE AND THE REVISED PENAL CODE.

The petitioners claim that the search warrants are void being violative of the Constitutional provision on search and seizure on the ground that:

a. The search warrants did not particularly describe the documents, books and things to be seized;

b. cash money not mentioned in the warrant were actually seized;

c. The warrants were issued to fish evidence in the deportation cases against them;

d. the searches and seizures were made in an illegal manner;

e. the things seized were not delivered to the court to be disposed of in a manner provided for by law.

Issue:

Were the searches and seizures made in the offices and residences of the petitioners valid?

a. As to the searches made on their offices, they could not question the same in their personal capacities because the corporations have a personality separate and distinct with its officers. An objection to an unlawful search and seizure IS PURELY PERSONAL AND CANNOT BE AVAILED OF BY THIRD PARTIES. CONSEQUENTLY, THE PETITIONERS MAY NOT VALIDLY OBJECT TO THE USE IN EVIDENCE AGAINST THEM OF THE DOCUMENTS, PAPERS AND THINGS SEIZED FROM THE OFFICES AND PREMISES OF THE CORPORATIONS, TO WHOM THE SEIZED EFFECTS BELONG, AND MAY NOT BE INVOKED BY THE CORPORATE OFFICERS IN PROCEEDINGS AGAINST THEM IN THEIR INDIVIDUAL CAPACITY.

b. As to the documents seized in the residences of the petitioners, the same may not be used in evidence against them because the warrants issued were in the nature of a general warrant for failure to comply with the constitutional requirement that:

1. that no warrant shall issue but upon probable cause, to be determined by the judge in the manner set forth in said provision; and

2. that the warrant shall particularly describe the things to be seized.

None of these requirements has been complied with in the contested warrants. They were issued upon applications stating that the natural and juridical persons therein named had committed a violation of Central bank Laws, Tariff and Customs Laws, Internal revenue Code and Revised Penal Code. IN OTHER WORDS, NO SPECIFIC OFFENSE HAD BEEN ALLEGED IN SAID APPLICATIONS. THE AVERMENTS THEREOF WITH RESPECT TO THE OFFENSE COMMITTED WERE ABSTRACT. AS A CONSEQUENCE, IT WAS IMPOSSIBLE FOR THE JUDGE WHO ISSUED THE WARRANTS TO HAVE FOUND THE EXISTENCE OF PROBABLE CAUSE, FOR THE SAME PRESUPPOSES THE INTRODUCTION OF COMPETENT PROOF THAT THE PARTY AGAINST WHOM IT IS SOUGHT HAS PERFORMED PARTICULAR ACTS, OR COMMITTED SPECIFIC OMISSIONS, VIOLATING A GIVEN PROVISION OF OUR CRIMINAL LAWS.

2. Bache vs. Ruiz, 37 SCRA 823

3. Secretary vs. Marcos, 76 SCRA 301

4. Castro vs. Pabalan, April 30,l976

5. Asian Surety vs. Herrera, 54 SCRA 312 (A search warrant for estafa, falsification, tax evasion and insurance fraud is a general warrant and therefore not valid)

6. Collector vs. Villaluz, June 18,1976

7. Viduya vs. Verdiago, 73 SCRA 553

8. Dizon vs. Castro, April 12, 1985

9. People vs. Veloso, 48 Phil. 169

1.            TAMBASEN VS. PEOPLE, July 14, 1995; PEOPLE VS. CA, 216 SCRA 101. “A SCATTER-SHOT WARRANT is a search warrant issued for  more than one specific offense like one for estafa, robbery, theft and qualified theft”)

f. Define probable cause. Who determines probable cause?

a.            ROBERTS VS. CA, 254 SCRA 307

b.            DE LOS SANTOS VS. MONTESA, 247 SCRA 85

VICENTE LIM,SR. AND MAYOR SUSANA LIM

VS.HON. N. FELIX (G.R. NO. 99054-57)

EN BANC

 GUTIERREZ, JR.  J.

Facts:

Petitioners are suspects of the slaying of congressman Moises Espinosa, Sr. and three of his security escorts and the wounding of another. They were initially charged, with three others, with the crime of multiple murder with frustrated murder. After conducting a preliminary investigation, a warrant of arrest was issued on July 31, 1989. Bail was fixed at P200,000.

On September 22, 1989, Fiscal Alfane, designated to review the case, issued a Resolution affirming the finding of a prima facie case against the petitioners but ruled that a case of Murder for each of the killing of the four victims and a physical injuries case for inflicting gunshot wound on the survivor be filled instead against the suspects. Thereafter, four separate informations to that effect were filed with the RTC of Masbate with no bail recommended.

On November 21, 1989, a motion for change of venue, filed by the petitioners was granted by the SC. It ordered that the case may be transferred from the RTC of Masbate to the RTC of Makati.

Petitioners then moved that another hearing ba conducted to determine if there really exists a prima facie case against them in the light of documents showing recantations of some witnesses in the preliminary investigation. They likewise filed a motion to order the transmittal of initial records of the preliminary investigation conducted by the municipal judge of Barsaga of Masbate. These motions were however denied by the court because the prosecution had declared the existence of probable cause, informations were complete in form  in substance , and there was no defect on its face. Hence it found it just and proper to rely on the prosecutor’s certification in each information.

ISSUE:

Whether or not a judge may issue a warrant of arrest without bail by simply relying on the prosecutions certification and recommendation that  a probable cause exists?

     Held:

1.  The judge committed a grave abuse of discretion.

In the case of Placer vs. Villanueva, the sc ruled that a judge may rely upon the fiscal’s certification of the existence of a probable cause and on the basis thereof, issue a warrant of arrest. However, the certification does not bind the judge to come out with the warrant of arrest. This decision interpreted the “search and seizure” provision of the 1973 Constitution. Under this provision, the judge must satisfy himself of the existence of probable cause before issuing a warrant of order of arrest. If on the face of information, the judge finds no probable cause, he may disregard the fiscal’s certification and require the submission of the affidavits of witness to aid him at arriving at a conclusion as to the existence of a probable cause. This has been the rule since U.S vs. Ocampo and Amarga vs. Abbas.

2.  In the case of Soliven vs. Makasiar, decided under the 1987 Constitution, the Court noted that the addition of the word personally after the word determined and the deletion of the grant of authority by the 1973 Constitution to issue warrants to other respondent officers as to may be authorized by law does not require the judge to personally examine the complainant and his witness in his determination of probable cause for the issuance of a warrant of arrest.What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause. Following established doctrine and procedures, he shall:

(1)  personally evaluate the reports and the supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest;

(2)  If on the basis thereof he finds no probable cause, he may disregard the fiscal’s report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause.

3.    The case of People vs. Honorable Enrique B. Inting reiterates the following doctrines:

(1)  The determination of probable cause is a function of the judge. It is not for the Provincial Fiscal or Prosecutor nor for the Election Supervisor to ascertain. Only the judge alone makes this detemination.

(2)  The preliminary inquiry made by the prosecutor does not bind the judge. It merely assist him to make the determination of probable cause. The judge does not have to follow what the prosecutor’s present to him. By itself, the prosecutor’s certification of probable cause is ineffectual. It is the report, the affidavits, the transcripts of stenographic notes, and all other supporting documents behind the prosecutor’s certification which are material in assisting the judge to make his determination.

(3)  Preliminary inquiry should be distinguished from the preliminary investigation proper. While the former seeks to determine probable cause for the issuance of warrant of arrest, the latter ascertains whether the offender should be held for trial or be released.

4.     4.  In the case of Castillo vs. Villaluz, the court ruled that judges of RTC no longer have authority to conduct preliminary investigations: This authority was removed from them by the 1985 Rules on Criminal Procedure, effective on January 1, 1985.

5.      In the present case, the respondent judge relies solely on the certification of the prosecutor. Considering that all the records of the investigation are in Masbate, he has not personally determined the existence of probable cause. The determination was made by the provincial prosecutor. The constitutional requirement had not been satisfied.

The records of the preliminary investigation conducted by the Municipal Court of Masbate and reviewed by the respondent Fiscal were still in Masbate when the respondent Fiscal issued the warrant of arrest against the petitioners. There was no basis for the respondent judge to make his personal determination regarding the existence of probable cause from the issuance of warrant of arrest as mandated by the Constitution. He could not have possibly known what has transpired in Masbate as he had nothing but a certification. Although the judge does not have to personally examine the complainant and his witnesses (for the prosecutor can perform the same functions as commissioner for taking of evidence) there should be a report and necessary documents supporting the Fiscal’s bare certification. All of these should be before the judge.

1. Amarga vs. Abbas, 98 Phil. 739

1-a. 20th Century Fox vs. CA, 164 SCRA 655

1-b. Quintero vs. NBI, 162 SCRA 467

1-c. The Presidential Anti-Dollar Salting Task Force vs. CA, GR No. 83578, March 16,    1989

SOLIVEN VS. MAKASIAR, 167 SCRA 393

The word “personally” after the word determined does not necessarily mean that the judge should examine the complainant and his witnesses personally before issuing the search warrant or warrant of arrest but the exclusive responsibility on the part of said judge to satisfy himself of the existence of probable cause. As such, there is no need to examine the complainant and his witnesses face to face. It is sufficient if the judge is convinced of the existence of probable cause upon reading the affidavits or deposition of the complainant and his witnesses.

1-e. Pendon vs. CA, Nov. 16, 1990

1-f. P. vs. Inting, July 25, 1990

1-g. Umil vs. Ramos, et al., July 9, 1990 with the Resolution of the Motion for Reconsideration in November, 1991

1-h. Paderanga vs. Drilon, April 19, 1991

2. Department of Health vs. Sy Chi Siong,               Inc., GR No. 85289, February 20, 1989

2-a. P. vs. Villanueva, 110 SCRA 465

2-b. Placer vs. Villanueva, 126 SCRA 463 (Only a judge has the power to determine probable insofar as the issuance of a warrant of arrest is concerned)

3. Tolentino vs. Villaluz,July 27,1987

4. Cruz vs. Gatan, 74 SCRA 226

5. Olaes vs. P., 155 SCRA 486

1.            Geronimo vs. Ramos, 136 SCRA 435

7.JUAN PONCE ENRILE VS. JUDGE JAIME SALAZAR, ET AL., G.R.NO. 92163, June 5, 1990

Due process; right to bail; warrant of arrest

(Note: This might be useful also in your Criminal Law)

Narvasa, J.

On February 27, 1990, Senator Juan Ponce Enrile was arrested by law enforcement officers led by NBI Director Alfredo Lim on the strength of a warrant of arrest issued by the respondent judge, HON. JAIME SALAZAR, Regional trial Court, Branch 103, Quezon City in Criminal Case No. 90-10941. The warrant was issued on an information signed and filed earlier in the day by Senior State Prosecutor AURELIO TRAMPE charging Senator Enrile, the spouses Rebecco and Erlinda Panlilio, and Gregorio Honasan with the crime of rebellion with murder and multiple frustrated murder allegedly committed during the period of the failed coup attempt from November 29 to December 10, 1990. Senator Enrile was taken to and held overnight at the NBI Headquarters on Taft Ave., Manila, WITHOUT BAIL, NONE HAVING BEEN RECOMMENDED IN THE INFORMATION AND NONE FIXED IN THE WARRANT OF ARREST.

On February 28, 1990, petitioner through counsel filed a petition for Habeas Corpus alleging that he was deprived of his constitutional rights in being, or having been:

a. held to answer for a criminal offense which does not exist in the statute books;

b. charged with a criminal offense in an information for which no complaint was initially filed or preliminary investigation was conducted, hence, he was denied due process;

c.  denied the right to bail; and

d.  arrested or detained on the strength of  warrant issued without the judge who issued it first having personally determined the existence of probable cause.

HELD:

The parties’ oral and written arguments presented the following options:

1. Abandon the Hernandez Doctrine and adopt the dissenting opinion of Justice Montemayor  that “rebellion cannot absorb more serious crimes”;

2. Hold Hernandez Doctrine applicable only to offenses committed in furtherance, or as necessary means for the commission, of rebellion, BUT NOT TO ACTS COMMITTED IN THE COURSE OF A REBELLION WHICH ALSO CONSTITUTE COMMON CRIMES OF GRAVE OR LESS GRAVE CHARACTER;

3. Maintain Hernandez Doctrine as applying to make rebellion absorb all other offenses committed in its course, whether or not necessary to its commission or in furtherance thereof.

1. On the first option, 11 justices voted AGAINST abandoning Hernandez. Two members felt that the doctrine should be re-examined. In view of the majority, THE RULING REMAINS GOOD LAW, ITS SUBSTANTIVE AND LEGAL BASES HAVE WITHSTOOD ALL SUBSEQUENT CHALLENGES AND NO NEW ONES ARE PRESENTED HERE PERSUASIVE ENOUGH TO WARRANT A COMPLETE REVERSAL. This is so because of the fact that the incumbent President (exercising legislative  powers under the 1986 Freedom Constitution) repealed PD No. 942 which added a new provision of the Revised Penal Code, particularly Art. 142-A which sought to nullify if not repealed the Hernandez Doctrine. In thus acting, the President in effect by legislative fiat reinstated the Hernandez as a binding doctrine with the effect of law. The Court can do no less than accord it the same recognition, absent any sufficiently powerful reason against so doing.

2. On the second option, the Supreme Court was unanimous in voting to reject the same though four justices believe that the arguments in support thereof is not entirely devoid of merit.

3. With the rejection of the first two options, the Hernandez Doctrine remains a binding doctrine operating to prohibit the complexing of rebellion with any other offense committed on the occasion thereof, either as a means necessary to its commission or as unintended effect of an activity that constitutes rebellion.

On the issues raised by the petitioner:

a. By a vote of 11-3, the Court ruled that the information filed against the petitioner does in fact charge an offense despite the objectionable phrasing that would complex  rebellion with murder and multiple frustrated murder, that indictment is to be read as charging SIMPLE REBELLION. The petitioner’s contention that he was charged with a crime that does not exist in the statute books, WHILE TECHNICALLY CORRECT SO FAR AS THE COURT RULED THAT REBELLION MAY NOT BE COMPLEXED WITH OTHER OFFENSES COMMITTED ON THE OCCASION THEREOF, MUST THEREFORE BE DISMISSED AS A MERE FLIGHT OF RHETORIC. Read in the context of Hernandez, the information does indeed charge the petitioner with a crime defined and punished by the Revised Penal Code: SIMPLE REBELLION.

b. Was the petitioner charged without a complaint having been initially filed and/or preliminary investigation conducted? The record shows that a complaint for simple rebellion against petitioner was filed by the NBI Director and that based on the strength of said complaint a preliminary investigation was conducted by the respondent prosecutors culminating in the filing of the questioned information. THERE IS NOTHING INHERENTLY IRREGULAR OR CONTRARY TO LAW IN FILING AGAINST A RESPONDENT AN INDUCTMENT FOR AN OFFENSE DIFFERENT FROM WHAT IS CHARGED IN THE INITIATORY COMPLAINT, IF WARRANTED BY THE EVIDENCE DEVELOPED DURING THE PRELIMINARY INVESTIGATION.

c. The petitioner claims that the warrant issued is void because it was issued barely one hour and twenty minutes after the case was raffled to the respondent judge which could hardly gave him sufficient time to personally go over the voluminous records of the preliminary investigation. Also, the petitioner claims that the respondent judge issued the warrant for his arrest without first personally determining the existence of  probable cause by examining under oath or affirmation the complainant and his witnesses, in violation of Art. III, Section 2, of the Constitution. This Court has already ruled that it is not unavoidable duty of the judge to make such a personal examination, it being sufficient that he follows established procedure by PERSONALLY EVALUATING THE REPORT AND THE SUPPORTING  DOCUMENT SUBMITTED BY THE PROSECUTOR. MEREBY BECAUSE SAID RESPONDENT JUDGE HAD WHAT SOME MIGHT CONSIDER ONLY A RELATIVELY BRIEF PERIOD WITHIN WHICH TO COMPLY WITH THAT DUTY , GIVES NO REASON TO ASSUME THAT HE HAD NOT, OR COULD NOT HAVE, SO COMPLIED; NOR DOES THAT SINGLE CIRCUMSTANCE SUFFICE TO OVERCOME THE LEGAL PRESUMPTION THAT OFFICIAL DUTY HAS BEEN REGULARLY PERFORMED.

d. Petitioner also claims that he is denied of his constitutional right to bail. In the light of the Court’s affirmation of Hernandez as applicable to petitioner’s case, and of the logical and necessary corollary that the information against him should be considered as charging only the crime of simple rebellion which is bailable before conviction, THAT MUST NOW BE ACCEPTED AS A CORRECT PROPOSITION.

NOTES:

This might be useful also in your Remedial Law.

Was a petition for Habeas Corpus before the Supreme Court the appropriate vehicle for asserting a right to bail or vindicating its denial?

The Supreme Court held that the criminal case before the respondent judge is the normal venue for invoking the petitioner’s right to have provisional liberty pending trial and judgment. The correct course was for the petitioner to invoke that jurisdiction by filing a petition to be admitted to bail, claiming a right to bail per se or by reason of the weakness of the evidence against him. ONLY AFTER THAT REMEDY WAS DENIED BY THE TRIAL COURT SHOULD THE REVIEW JURISDICTION OF THE SUPREME COURT BE INVOKED, AND EVEN THEN, NOT WITHOUT FIRST APPLYING TO THE COURT OF APPEALS IF APPROPRIATE RELIEF WAS ALSO AVAILABLE THERE.

Even assuming that the petitioner’s premise that the information charges a non-existent crime would not excuse or justify his improper choice of remedies. Under either hypothesis, the obvious recourse would have been a motion to quash brought in the criminal action before the respondent judge.

g. Warrantless searches and seizures–when valid or not. Is “Operation Kapkap” valid?

Read:

PEOPLE VS. MENGOTE, G.R. No. 87059, June, 1992, 210 scra 174

Warrantless search and seizure

Cruz, J.

Facts:

1. On August 8, 1987, the Western Police District received a telephone call from an informer that there were three suspicious-looking persons at the corner of Juan Luna and North Bay Blvd., in Tondo, Manila;

2. When the surveilance team arrived therein, they saw the accused “looking from side to side” and “holding his abdomen”. They approched these persons and identified themselves as policement that is why they tried to ran away because of the other lawmen, they were unable to escape;

3. After their arrest, a .38 cal. Smith and Wessor revolver was confiscated from the accused and several days later, an information for violation of PD 1866 was filed against him;

4. After trial, Mengote was convicted of having violated PD 1866 and was sentenced to suffer reclusion perpetua based on the alleged gun as the principal evidence. Hence this automatic appeal.

Issue:

Was there a valid warrantless search and seizure?

Held:

There is no question that evidence obtained as a result of an illegal search or seizure is inadmissible in any proceeding for any purpose. That is the absolute prohibition  of Article III, Section 3 [2], of the Constitution. This is the celebrated exclusionary rule based on the justification  given by  Justice Learned Hand that “only in case the prosecution, which itself  controls the seizing officials, knows that it cannot profit  by their wrong will the wrong be repressed.”

Section 5,  Article 113 of  the Rules  of Court  provides:

Sec.  5. Arrest without warrant; when lawful.-  A peace officer or 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;

(b) 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) 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 temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

x  x  x

          We have carefully examined the wording of this Rule and cannot see how we we can agree with the prosecution.

Par. (c) of Section 5 is  obviously inapplicable as Mengote was not an escapee from a penal institution when he was arrested. We therefore confine ourselves to determining  the lawfulness of his arrest under either  Par. (a) or Par. (b) of this Section.

Par. (a) requires that the person be arrested (1) after he has  committed or while he is actually committing or is at least attempting to commit an offense, (2) in the presence of the arresting officer.

These requirements have not been established in the case at bar. At the time of the arrest in question, the accused-appellant was merely “looking from side to side”  and “holding his abdomen,” according to the arresting officers themselves. There was apparently no offense that had just  been committed or was being actually committed  or at least being attempted by  Mengote in thie presence.

The Solicitor  General  submits that the actual  existence  of an offense was not necessary  as long as Mengote’s  acts created  a reasonable suspicion  on the part of the arresting officers and induced in them the belief that an offense had been committed and that accused-appellant had committed it”. The question is, What offense? What offense  could possibly have been suggested by a person “looking from side to side” and  “holding his abdomen” and in  aplace not exactly  forsaken.

These are certainly not sinister acts. And the setting of the arrest  made them less so, if at all. It might have been different if Mengote had been apprehended at an unholy hour and in a  place where he  had  no reason to be, like a darkened alley at 3 o’clock in the morning. But he was arrested at 11:30 in the morning  and in  a  crowded street  shortly after alighting from a passenger jeep  with his companion.He was not skulking in the shadows but walking in the clear light of day. There was nothing clandestine about his being on that street at that busy hour in the blaze of the noonday sun.

On the other  hand, there could  have  been a number of  reasons, all of them innoent, why hiseyes were darting from  side to sideand he was holding his  abdomen. If they excited suspicion in the minds of the arresting officers, as the prosecution suggests, it has nevertheless  not  been shown what their suspicion was all about.

x x x

          The case before us is different because there was nothing to support the arresting  officers’ suspicion other than Mengote’s darting eyes and his hand on his abdomen. By no stretch of the imagination could it have been inferred from these acts that  an offense had just been committed, or was  actually being committed, or was at least being attempted  in their presence.

This is similar to PEOPLE vs. AMMINUIDIN, 163 SCRA 402 where the Court held that  a warrantless arrest of the accused was unconstitutional. This was effected while he was coming  down the vessel, to all appearances no less innocent than the other disembarking passengers. He had  not  committed nor was actually committing  or attempting to commit an offense  in the presence of the arresting officers. He was not even acting suspiciously. In short, there was no probable cause that, as the prosecution incorrectly suggested, dispensed with the constitutional requirement of a warrant.

Par. (b) is no less applicable because its no  less stringent requirements have also not been satisfied. Theprosecution has not shown that at the time  of Mengote’s arrest an offense had in fact been committed and that the arresting officers had  personal knowldge of facts indicating that Mengote had committed it.  All they had was hearsay information from the  telephone caller, and  about a crime that had yet  to   bem committed.

x x x

  Before these events, the peace  officers   had no knowledge even of  Mengote’s  identity,  let  alone   the  fact that he was  involved in  the  robbery of  Danganan’s house.

In  the landmark case  of  People vs. Burgos, 144  SCRA 1, this  Court declared:

Under Section 6(a) of Rule 113, the officer arresting a person who has just committed, is committing, or is about to commit an offense must have personalknowledge of that fact. The offense must also be committed in his presence or within his view. (SAYO vs. CHIEF OF POLICE, 80 Phil. 859).

x x x

          In arrests without a warrant under Section 6(b), however, it is not enough that there is reasonable ground to believe that the person to be arrested has committed a crime. A crime must in fact or actually have been committed first. That a crime has actually been committed is an essential precondition. It is not enough to suspect that a crime may have been committed. The fact of the commission of the offense must be undisputed. The test of reasonable ground applies only to the identity of the perpetrator..

This doctrine was affirmed  in Alih vs. Castro, 151 SCRA 279, thus:

If the arrest  was  made under Rule 113,  Section 5, of the Rules of Court in connection with a crime about to be committed, being committed,  or  just  committed, what was that crime? There is no allegation in the record of such a  falsification. Parenthetically, it  may be observed that  under the Revised Rule  113, Section 5(b), the officer making the arrest must have personal knowledge of the ground therefor as  stressed in the recent case of  People vs.  Burgos.

It would be a  sad day, indeed, if any person could be summarily arrested and searched just because he is holding  his abdomen,  even if it be possibly because of a stomach-ache, or  if a peace officer could clamp handcuffs on any person with a shifty look on suspicion that  he may have committed a criminal act is actually committing or   attempting it. This simply  cannot be done in  a free society. This is not a police state where order   is exalted over liberty or, worse, personal malice on the part ofthe arresting officer may be  justified  in the name of security.

x x x

          The court feels that if the  peace officers had been  more mindful of the provisions of the Bill of Rights, the prosecution of the accused-appellant might have succeeded. As it happened, they allowed their over zealousness  to get the better of them, resulting in their disregard     of the requirements of a valid search and seizure  that rendered inadmissible the evidence they had invalidly seized.

This should be a lesson to other  peace officers. Their impulsiveness may be the very  cause   of the acquittal of persons who deserve to be convicted, escaping the clutches of  the law, because, ironically  enough, it  has not been observed by those  who are supposed to  enforce it.

When illegal arrest is deemed waived.

Warrantless arrest; no personal knowledge of the arresting officer

PEOPLE VS. GALVEZ, 355 SCRA 246

Mendoza, J.

The policeman  arrested the accused-appellant on the basis solely of what Reynaldo Castro had told him and not because he saw the accused-appellant commit the crime charged against him. Indeed, the prosecution admitted that there was no warrant of arrest issued against accused-appellant when the latter was taken into custody. Considering that the accused-appellant was not committing a crime at the time he was arrested  nor did the arresting officer have any personal knowledge of facts indicating that accused-appellant committed a crime, his arrest without a warrant cannot be justified.

However, by entering a plea of not guilty during the arraignment, the accused-appellant waived his right to raise the issue of illegality of his arrest. IT IS NOW SETTLED THAT OBJECTION TO A WARRANT OF ARREST OR THE PROCEDURE BY WHICH A COURT ACQUIRES JURISDICTION OVER THE PERSON OF AN ACCUSED MUST BE MADE BEFORE HE ENTERS HIS PLEA, OTHERWISE, THE OBJECTION IS DEEMED WAIVED. THE FACT THAT THE ARREST WAS ILLEGAL DOES NOT RENDER THE SUBSEQUENT PROCEEDINGS VOID AND DEPRIVE THE STATE OF ITS RIGHT TO CONVICT THE GUILTY WHEN ALL THE FACTS POINT TO THE CULPABILITY OF THE ACCUSED.

g-1. Warrantless Search and seizure by a private person. (Valid since the constitutional provision is not applicable to him; when it is not valid)

Read:

1.            PEOPLE VS. MENDOZA, 301 SCRA 66

Warrantless searches and seizures by private individuals

2. SILAHIS INTERNATIONAL HOTEL, INC. VS. ROGELIO SOLUTA, ET AL., 482 SCRA 660

Carpio-Morales, J.

The petitioner suspects that the respondents who are officers of the Silahis International Hotel Union were using the Union Office located inside the hotel in the sale or use of marijuana, dollar smuggling, and prostitution. They arrived at the said conclusion through surveillance.

In the morning of January 11, 1988, while the respondent union officer was opening the Union Office, security officers of the plaintiff entered the union office despite objections thereto by forcibly opening the same. Once inside  the union office they started to make searches which resulted in the confiscation of  a plastic bag of marijuana. An information for violation of the dangerous drugs act was filed against the respondent before the RTC of Manila which acquitted them on the ground that the search conducted was illegal since it was warrantless and without consent by the respondents.

After their acquittal, the respondents filed a case for Malicious Prosecution against the petitioner for violation of Art. 32 of the Civil Code. After trial, the  Regional Trial Court held that petitioners are liable for damages as a result of an illegal search. The same was affirmed by the Court of Appeals.

Issue:

Whether the warrantless search conducted by the petitioners (private individual and corporation) on the union office of the private respondents is valid.

Held:

The search is not valid and they are civilly liable under Art. 32 of the Civil Code. The fact that the union office is part of the hotel owned by the petitioners does not justify the warrantless search. The alleged reports that the said union office is being used by the union officers for illegal activities does not justify their acts of barging into the said office without the consent of the union officers and without a search warrant. If indeed there was surveillance made, then they should have applied for a search warrant.

The ruling in People vs. Andre Marti is not applicable here because in Marti, a criminal case, the issue was whether an act of a private individual, allegedly in violation of one’s constitutional rights may be invoked against the State. In other words, the issue in Marti is whether the evidence obtained by a private person acting in his private capacity without the participation of the State, is admissible.

3.  PEOPLE OF THE PHILIPPINES VS. ANDRE MARTI

G.R. NO. 81561, January 18, 1991

Warrantless Search and seizure

by a private person

Bidin, J.

FACTS:

Andre Marti and his common-law wife, Shirley Reyes went to Manila Packaging and Export Forwarders to send four (4) packages to Zurich, Switzerland. Anita Reyes, owner of the place (no relation to Shirley), received said goods and asked if she could examine and inspect it. Marti refused. However later, following standard operating procedure, Job Reyes, co-owner and husband of Anita opened the boxes for final inspection, before delivering it to the Bureau of Customs and/or Bureau of Posts.

Upon opening, a peculiar odor emanated from the box that was supposed to contain gloves. Upon further perusal, he felt and saw a dried leaves inside the box. Job Reyes then brought samples to the NBI, he told them that the boxes to be shipped were still in his office. In the presence of the NBI agents, Reyes opened the box and discovered that the odor came from the fact that the dried leaves were actually those of the marijuana flowering tops.

Two other boxes,marked as containing books and tabacalera cigars; also revealed bricks or case-like marijuana leaves and dried marijuana leaves respectively.

Marti was later invited by the NBI to shed light on the attempted shipment of the dried leaves. Thereafter an information was filed against the appellant for violating RA 6425 or the Dangerous Drugs Act. The Special Criminal Court of Manila convicted accused Marti of violating sec.21(b) of said RA.

ISSUES:

1. Did the search conducted by a private person, violate accused’s right against unreasonable searches seizures and invocable against the state?

2.  Was the evidence procured from the search admissible?

Held:

1. No, constitutional protection on search and seizure is imposable only against the state and not to private persons.

Since Art. III,2 of the 1987 constitution is almost verbatim from the United States constitution, the SC may consider US Fed. SC cases as likewise doctrinal in this jurisdiction. Hence, in US cases, the constitutional provision against unreasomable searches and seizure was intended as a restraint upon the activities of the sovereign authority and NOT intended against private persons. If a search was initiated by a private person the provision does not apply since it only proscribes government action. This view is supported by the deliberations by the 1986 Constitutional Commission.

In short, the protection against unreasonable searches and seizures cannot be extended to acts comitted by private individuals so as to bring it within the ambit of alleged unlawful intrusion.

Case at bar will show that it was Job Reyes` initiative that perpetrated the search. He opened the packages and took the samples to NBI. All the NBI agents did was to observe and look in plain sight. This did not convert it to a search as contemplated by the constitution.

2. Yes, since the search was valid, the evidence from therein is admissible evidence.

Art.III [2], on the admissibility of evidence in violation of the right against unreasonable searches and seizures, likewise applies only to the government and its agencies and not to private persons.

(U.S. cases cited: Burdeau v. McDowell  (256 us 465 [1921], state v. Bryan (457 p 2d 661 [1968], Walker v. state (429 s.w 2d 121 [1969]), Barnes v. us (373 F 2d 517  [1967]), Chadwick v. state (329 sw 2d 135).

VALID WARRANTLESS SEARCH AND SEIZURE:

1.            Search made incidental to a valid arrest

a.            Moreno vs. Ago Chi, 12 Phil. 439

b.            PEOPLE VS. ANG CHUN KIT, 251 SCRA 660

c.            PEOPLE VS. LUA, 256 SCRA 539

d.            PEOPLE VS. Figueroa, 248 SCRA 679

e.            NOLASCO VS. PANO, 139 SCRA 541 (A search incidental to a valid arrest must be done at the place where the accused is arrested. As such, if  accused was arrested while inside a jeepney, there is no valid search incidental to a valid arrest if she will be brought to her residence and thereafter search the said place)

f.             ESPANO VS. CA, 288 SCRA 588 (If the accused was arrested in the street during a buy-bust operation, the search of his house nearby is not a valid search incidental to a valid arrest)

PEOPLE VS. GO, 354 SCRA 338

Where the gun tucked in a person’s waist is plainly visible to the police, no search warrant is necessary and in the absence of any license for said firearm, he may be arrested at once as he is in effect committing a crime in the presence of the police officers. No warrant is necessary in such a situation, it being one of the recognized exceptions under the Rules.

As a consequence of the accused’s valid warrantless arrest inside the nightclub, he may be lawfully searched for dangerous weapons or anything which may be used as proof of the commission of an offense, without a search warrant in accordance with Section 12, Rule 126. This is a valid search incidental to a lawful arrest.

In fact, the subsequent discovery in his car which was parked in a distant place from where the illegal possession of firearm was committed [after he requested that he will bring his car to the Police Station after his warrantless arrest) , of a drug paraphernalia and shabu, CANNOT BE SAID TO HAVE BEEN MADE DURING AN ILLEGAL SEARCH. As such, the items do not fall under the exclusionary rule and the unlicensed firearms, drug paraphernalia and the shabu, can be used as evidence against the accused.

2.            Search of moving vehicles

a.            Carrol vs. US, 267 US 132

b.            PEOPLE VS. LO HO WING, et al.

(G.  R.  No. 88017) January 21, 1991

c.            MUSTANG LUMBER VS. CA, 257 SCRA 430

d.            PEOPLE VS. CFI, 101 SCRA 86

e.            PEOPLE VS. MALMSTEDT198 SCRA 401

f.             PEOPLE VS. LO HO WING, 193 SCRA 122

FACTS:

In July 1987, the Special Operations Group of the CIS received a tip from one of its informers about an organized group engaged in importation of illegal drugs and smuggling of contraband items. To infiltrate the crime syndicate, they recruited confidential men and “deep penetration agents” under OPLAN SHARON 887. One such agent was Reynaldo Tia  (the dicharged/accused). As an agent, he submitted regular reports of undercover activities of suspected syndicates. CAPTAIN PALMERA, head of oplan sharon 887, in turned informed the Dan

gerous Drugs Board of Tia’s activities.

Tia was introduced to his co-accused Lim Cheng Huat by another agent named George. Lim wanted a male travelling companion for his business trips abroad. Tia offered his services and was hired by Lim. Later, Tia was introduced to Peter Lo (alias of accused/appellant Lo Ho Wing), the later turning out to be Tia’s intended companion.

Appellant Lo Ho Wing and Tia left for Hongkong on October 4, 1987. Tia telephoned Capt. Palmera that they would return to the Philippines on October 6. From Hongkong, the two proceeded to Guangzhou in mainland China. There, appeallant Lo Ho Wing bought six (6) cans of tea.Tia saw these 6 bags when they were opened for examination. That evening, they went to Lo Ho Wing’s room and he saw two other men with him. One was fixing the tea bags, while the other was burning a substance on a piece of aluminum foil using a lighter. Appellant Lo Ho Wing joined the second man and sniffed the smoke emitted by the burning substance. When Tia asked Lo Ho Wing what cargo they would bring to Manila, the latter replied that they would be bringing Chinese drugs.

The next day en route to Manila, customs examiners inspected the bags containing the tin cans of tea. Since the bags were not closely examined, appellant Lo Ho Wing and Tia were cleared. In Manila, They were met by Lim Cheng Huat. Appelant Lo Ho Wing and Tia boarded a taxi from the airport and loaded their luggage in the taxi’s compartment. Lim Cheng Huat followed them in another taxi.

Meamwhile, a team composed by Capt. Palmera positioned themselves in strategic areas around the airport. The CIS men who first saw Lo Ho and Tia followed them. Along Imelda Avenue, the CIS car overtook the taxi ridden by Lo Ho Wing and Tia , forcing the taxi driver to stop his vehicle. The CIS team asked  the taxi driver to open the baggage compartment. The CIS team asked permission to search their luggage.

A tin can of tea was taken out of the compartment. Sgt. Cayabyab of the CIS pried the lid open  and pressed it in the middle to pull out the contents. Crystalline white powder resmbling crushed alum came out. Suspecting the crystalline powder to be a dangerous drug, he had the three travelling bags opened for inspection. All the bags threshed out a total of six tin cans. Tia and appellant were taken to the CIS headquarters for questioning. Meanwhile, the second taxi carrying Lim Cheng Huat sped in attempt to escape. However, they were later captured.

Samples from the bag tested positive for metamphetamine. The three suspects were indicted for violating Art. III, sec.15 of the Dangerous Drug Act. Appellant Lo Ho Wing and Lim Cheng Huat were sentenced to suffer life imprisonment and to pay a fine of P25,000 each. Reynaldo Tia was discharged as a state witness. The trial court gave full credence to the testimonies of government agents since the presumption of regularity in the performance of official duties were in their favor.

ISSUES:

1.  Was the warrantless search valid?

2. Are the effects taken admissible as evidence?

HELD:

1. This is a case of search on a moving vehicle which is one of the well-known exceptions to the valid warrantless search and seizure. To stilol get a search warrant from a judge would allow the accused go scot-free.

2. Since the search and seizure are valid, the evidence obtained is admissible as evidence in any proceeding.

3.            Seizure of goods concealed to avoid duties/taxes (Valid)

a.            Papa vs. Mago, 22 SCRA 857

b.            Pacis vs. Pamaran, 56 SCRA 16

c.            HIZON VS. CA, 265 SCRA 517

d.            PEOPLE VS. QUE, 265 SCRA 721

4.            Seize of evidence in plain view

a.            Harris vs. US, 390 US 234

b.            PEOPLE VS. DAMASO, 212 SCRA 547

c.            PEOPLE VS. VELOSO, 252 SCRA 135

d.            PEOPLE VS. LESANGIN, 252 SCRA 213

5.            When there is waiver of right or gives his consent;

a.            De Garcia vs. Locsin, 65 Phil. 689

b.            Lopez vs. Commissioner, 65 SCRA 336

c.            PEOPLE VS. DAMASO, 212 SCRA (In order that there is a valid waiver to a warrantless search, the waiver or consent  should be given by the person affected, not just anybody. Example: The landlady could not give a valid consent to the search of a room occupied by a tenant. Said tenant himself should give the consent in order to be valid. The doctrine in Lopez vs. Commissioner to the effect that it could be given by any occupant of a hotel room being rented by the respondent is deemed abandoned)

d.            VEROY VS. LAYAGUE, 210 SCRA 97. (If the owner of the house allowed the policemen to enter his house because they are searching for rebel soldiers but when inside the house, they instead seized an unlicensed firearm, there is no consent to a warrantless search)

6.            STOP AND FRISK.

a.            People vs. Mengote, June, 1992

b.            PEOPLE VS. POSADAS, 188 SCRA 288

c.            MANALILI VS. PEOPLE, October 9, 1997. (The policemen saw several suspicious looking men at dawn who ran when they went near them. As the policemen ran after them, an unlicensed firearm was confiscated. The search is valid)

d.            MALACAT VS. CA, 283 SCRA 159. (Mere suspicions not sufficient to validate warrantless arrest)

6. EDDIE GUAZON, ET AL. VS. MAJ. GEN. RENATO DE VILLA, ET AL., GR NO. 80508, January 30, 1990

Warrantless searches;

 “zonings” and “saturation drives”

Section 17, Art. VII of the Constitution

Gutierrez, Jr.,  J.

Facts:

This is a petition for Prohibition with preliminary injunction to prohibit military and police officers from conducting “Areal target zonings” or “saturation drive” in Metro Manila particularly in places where they suspect that the subversives are hiding. The 41 petitioners claim that the saturation drives conducted by the military is in violation of their human rights because with no specific target house in mind, in the dead of the night or early morning hours, police and military officers without any search warrant cordon an area of more than one residence and sometimes the whole barangay. Most of them are in civilian clothes and w/o nameplates or identification cards; that the raiders rudely rouse residents from their sleep by banging on the walls and windows of their homes, shouting, kicking their doors open (destroying some) and ordering the residents to come out; the residents are herded like cows at the point of high powered guns, ordered to strip down to their briefs and examined for tattoo marks; that while examination of the bodies of the men are being conducted, the other military men conduct search and seizures to each and every house without civilian witnesses from the neighbors; some victims complained that their money and other valuables were lost as a result of these illegal operations.

The respondents claim that they have legal authority to conduct saturation drives under Art. VII, Sec. 17 of the Constitution which provides:

The respondents would want to justify said military operation  on the following constitutional provisions:

     The President shall be the Commander-in-Chief of all the armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion

x x x x x x

The President shall have control of all the executive departments, bureaus and offices. He shall ensure that the laws are faithfully executed.

Held:

There can be no question that under ordinary circumstances, the police action of the nature described by the petitioners would be illegal and blatantly violative of the Bill of Rights. If the military wants to flush out subversive and criminal elements, the same must be consistent with the constitutional and statutory rights of the people. However, nowhere in the Constitution can we see a provision which prohibits the Chief Executive from ordering the military to stop unabated criminality, rising lawlessness and alarming communist activities. However, all police actions are governed by the limitations of the Bill of Rights. The government cannot adopt the same reprehensible methods of authoritarian systems both of the right and of the left. This is so because Art. III, Section 3 of the Constitution is very clear as explained in Roan vs. Gonzales, 145 SCRA 687 and Century Fox vs. Court of Appeals, 164 SCRA 655. Also, it must be pointed out that police actions should not be characterized by methods that offend one’s sense of justice (Rochin vs. California, 342 US 165).

The Court believes it highly probable that some violations were actually committed. But the remedy is not to stop all police actions, including the essential and legitimate ones. A show of force is sometimes necessary as long as  the rights of people are protected and not violated. However, the remedy of the petitioners is not an original action for prohibition since not one victim complains and not one violator is properly charged. It is basically for the executive department and the trial courts. The problem is appropriate for the Commission of Human Rights.

The petition was therefore remanded to the Regional Trial Courts of Manila, Malabon and Pasay City where the petitioners may present evidence supporting their allegations so that the erring parties may be pinpointed and prosecuted. In the meantime, the acts violative of human rights alleged by the petitioners as committed during the police actions are ENJOINED until such time as permanent rules to govern such actions are promulgated.

********************

Cruz, Padilla and Sarmiento, JJ. , Dissenting

The ruling of the majority that the petitioners are not proper parties is a specious pretext for inaction. We have held that technical objections may be brushed aside where there are constitutional questions that must be met (RODRIGUEZ VS. GELLA, 92 PHIL. 603; TOLENTINO VS. COMELEC, 41 SCRA 702; PHILCONSA VS. JIMENEZ, 65 SCRA 479; EDU VS. ERICTA, 35 SCRA 481; GONZALES VS. COMELEC, 27 SCRA 835; LAGUNZAD VS. CA, 154 SCRA 199; DEMETRIA VS. ALBA,148 SCRA 208). Lozada was in fact an aberration.

Where liberty is involved, every person is a proper party even if he may not be directly injured. Each of us has a duty to protect liberty and that alone makes him a proper party. It is not only the owner of a burning house who has the right to call the firemen.

Section 2, Art. III of the constitution is very clear: Unreasonable searches and seizures of whatever nature and for whatever purpose is prohibited.

Saturation drives are NOT AMONG THE ACCEPTED INSTANCES WHEN A SEARCH OR AN ARREST MAY BE MADE WITHOUT A WARRANT. THEY COME UNDER THE CONCEPT OF  THE FISHING EXPEDITIONS STIGMATIZED BY LAW AND DOCTRINE X X X I submit that this court should instead categorically and emphatically that these saturation drives are violative of human rights and individual liberty and should be stopped immediately. While they may be allowed in the actual theater of military operations against the insurgents, the Court should also make it clear that Metro Manila is not such a battleground.

7. IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ROBERTO UMIL, ROLANDO DURAL and RENATO VILLANUEVA. MANOLITA UMIL and NICANOR DURAL, FELICITAS SESE VS. FIDEL RAMOS, ET AL. and companion cases, G.R. No. 81567, July 9, 1990 (An NPA may be arrested without warrant while sleeping or being treated in a hospital because his being a communist rebel is a continuing crime)

h. If the judge finds that there’s probable cause, must he issue a warrant of arrest as a matter of course? See the distinctions.

Read:

1.            SAmulde vs. Salvani, September 26,  1988 (No because a warrant is issued in order to have jurisdiction of the court over the person of an accused and to assure the court of his presence whenever his case is called in court. As such, if the court believes that the presence of the accused could be had even without a warrant of arrest, then he may not issue said warrant. Note: This case involves a minor offense)

2.            GOZO VS. TAC-AN, 300 SCRA 265. If the offense committed  is a serious one like that obtaining in this case for murder, the  Judge must issue a warrant of arrest after determining the existence of probable cause)

i. Searching questions

Read:

DR. NEMESIO PRUDENTE VS. THE HON. EXECUTIVE JUDGE ABELARDO M. DAYRIT, RTC 33, Manila & People of the Philippines, GR No. 82870, December 14, 1989 (En Banc)

Search and seizure; requirements/requisites of a valid search warrant; searching questions

Padilla, J.

This is a petition to annul and set aside the Order of respondent Judge DENYING the motion of the petitioner to quash Search Warrant No. 87-14 as well as its Order denying the petitioner’s Motion for Reconsideration.

Facts:

1. On October 31, 1987, P/Major Alladin Dimagmaliw, Chief of the Intelligence Special Action Division (ISAD) of the Western Police District (WPD) filed with the Regional Trial Court of Manila, Branch 33, presided by the respondent Judge, an application for the issuance of a Search Warrant for violation of PD 1866 against the petitioner;

2. In his application for search warrant, P/Major Dimagmaliw alleged that:

“1. That he has been informed and has good and sufficient reasons to believe that NEMESIO PRUDENTE who may be found at the Polytechnic University of the Philippines x x x has in his control or possession firearms, explosives, hand grenades and ammunition intended to be used as the means of committing an offense x x x;

“2. That the undersigned has verified the report and found it to be a fact x x x “.

In support of said application, P/Lt. Florencio Angeles executed a “Deposition of Witness dated October 31, 1987 .

3. On November 1, 1987, a Sunday and All Saints Day, the search warrant was enforced by some 200 WPD operatives led by Col. Edgar Dula Torre and Major Maganto;

4. On November 2, 1987, Ricardo Abando, a member of the searching team executed an affidavit alleging that he found in the drawer  of a cabinet inside the wash room of Dr. Prudente’s office a bulging brown envelope with three live fragmentation hand grenades separately with old newspapers;

5. On November 6, 1987, the petitioner moved to quash the search warrant on the grounds that:

a. the complainant’s lone witness, Lt. Angeles had no personal knowledge of the facts which formed the basis for the issuance of the search warrant;

b. the examination of said witness was not in the form of searching questions and answers;

c. the search warrant was a general warrant, for the reason that it did not particularly describe the place to be searched and that it failed to charge one specific offense; and

d. the warrant was issued in violation of Circular No. 19 of the Supreme Court in that the complainant failed to allege that the issuance of the search warrant on a Saturday was urgent.

6. On March 9, 1986, the respondent judge denied the motion to quash and on April 20, 1988, the same judge denied petitioner’s motion for reconsideration. Hence this petition.

Issue:

Was the Search Warrant issued by the respondent judge valid? Was there probable cause?

Held:

a. For a valid search warrant to issue, there must be probable cause, which is to be determined by the judge, after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. The probable cause must be in connection with one specific offense and the judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath, the complainant and the witnesses he may produce, on facts personally known to them and attach to the record their sworn statements together with any affidavits submitted.

The “probable cause” for a valid search warrant, has been defined “as 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 connection with the offense are in the place sought to be searched”. (Quintero vs. NBI, June 23, 1988). This probable cause must be shown to be within the personal knowledge of the complainant or the witnesses he may produce and not based on mere hearsay. (P. VS. SY JUCO, 64 PHIL. 667; ALVAREZ VS. CFI, 64 PHIL. 33; US VS. ADDISON, 28 PHIL. 566).

In his affidavit, Major Dimagmaliw declared that “he has been informed” that Nemesio Prudente “has in his control and possession” the firearms and explosivees described therein, and that he “has verified the report and found it to be a fact.” On the other hand, Lt. Angeles declared that as a result of continuous surveillance for several days, they “gathered information’s from verified sources” that the holders of said firearms and explosives are not licensed t possess them. It is clear from the foregoing that the applicant and his witness HAD NO PERSONAL KNOWLEDGE OF THE FACTS AND CIRCUMSTANCES which became the basis for issuing the questioned search warrant, but acquired knowledge thereof only through information from other sources or persons.

Despite the fact that Major Dimagmaliw stated in his affidavit that “he verified the information he had earlier received and found it to be a fact, YET THERE IS NOTHING IN THE RECORD TO SHOW OR INDICATE HOW AND WHEN SAID APPLICANT VERIFIED THE EARLIER INFORMATION ACQUIRED BY HIM AS TO JUSTIFY HIS CONCLUSION. He might have clarified this point if there had been searching questions and answers, but there were none. In fact, the records yield no questions and answers, whether searching or not, vis-a-vis the said applicant.

In ALVAREZ VS. CFI, 64 PHIL. 33, it was held that the following test must be complied with in an application for search warrant or in a supporting deposition based on personal knowledge or not-

“The true test of sufficiency of a deposition or affidavit to warrant issuance of a search warrant is whether it was drawn in a manner that perjury could be charged thereon and the affiant be held liable for damage caused. The oath required must refer to the truth of the facts within the personal knowledge of the applicant of a search warrant and/or his witnesses, not of the facts merely reported by a person whom one considers to be reliable.”

Tested by the above standards, the allegation of the witness, Lt. Angeles, do not come up to the level of facts based on his personal knowledge so much so that he cannot be held liable for perjury for such allegations in causing the issuance of the questioned search warrant.

Besides, respondent judge did not take the deposition of the applicant as required by the Rules of Court. As held in Roan vs. Gonzales, 145 SCRA 694, “mere affidavits of the complainant and his witnesses are thus insufficient. The examining judge has to take the depositions in writing of the complainant and the witnesses he may produce and attach them to the record.”

b. There was also no searching questions asked by the respondent judge because as shown by the record, his questions were too brief and short and did not examine the complainant and his witnesses in the form of searching questions  and answers. On the contrary, the questions asked were leading as they called for a simple “yes” or “no” answer. As held in Quintero vs. NBI, June 23, 1988, “the questions propounded are not sufficiently searching to establish probable cause. Asking of leading questions to the deponent in an application for search warrant and conducting of examination in a general manner would not satisfy the requirements for the issuance of a valid search warrant.”

The Court avails of this decision to reiterate the strict requirements for determination of probable cause in the valid issuance of a search warrant as enunciated in earlier cases. True, this requirements are stringent but the purpose is to assure that the constitutional right of the individual against unreasonable search and seizure shall remain both meaningful and effective.

c. The rule is, that a description of a place to be searched is sufficient if the officer with the warrant can with reasonable effort ascertain and identify the place intended (P VS. VELOSO, 48 PHIL. 180). In the case at bar, the warrant described the place to be searched as the premises of the PUP, more particularly the offices of the Department of Science and Tactics as well as the Office of the President, Nemesio Prudente.

There is also no violation of the “one specific offense” requirement considering that the application for a search warrant explicitly described the offense: illegal possession of firearms and ammunitions under PD 1866.

d. CIRCULAR NO. 19 OF THE SUPREME COURT merely provides for a guideline, departure from which would not necessarily affect the validity of the search warrant provided the constitutional requirements are complied with.

a.            HUBERT WEBB VS. DE LEON, 247 SCRA 650

Read also:

1. Alvarez vs. CFI, 64 Phil. 33 (When the applicant is basing his knowledge from an informant, the same is not valid)

2. Luna vs. Plaza, 26 SCRA 313

3. De Mulata vs. Irizari, 62 SCRA 210

4. Marinas vs. Siochi, 104 SCRA 423

5. Roan vs. Gonzales, 145 687

6. Mata vs. Bayona, 128 SCRA 388 (Depositions of the applicants and witnesses should be attached to the record of the case)

7. Corro vs. Lising, 137 SCRA 541

8. Nolasco vs Pano, 147 SCRA 509

9. Burgos vs. Chief of Staff, 133 SCRA 800

10. P. vs. Burgos, September 14,1986

11. P. vs. Aminnudin Y Ahni, July 6,1988

12. Ponsica vs. Ignalaga, July 31,1987 (When the statements in the affidavits of witnesses are mere generalities, mere conclusions of law, and not positive statements of particular acts, the warrant is not valid)

13. Aberca vs. Ver, April 15,1988

2.            Panganiban vs. Cesar, 159 SCRA 599

3.            PENDON VS. CA, November 16, 1990. (When the questions asked to the applicant for a search warrant was pre-typed, the same is not valid since there could have been no searching questions)

j. Warrantless searches and seizures–when valid or not.

Read:

1. RICARDO VALMONTE VS. GEN RENATO DE VILLA,              GR No. 83988, September 29, 1989

Warrantless searches and seizures;

validity of checkpoints

Padilla, J.

Facts:

1. On January 20, 1987, the National Capital Region District Command (NCRDC) was activated with the mission of conducting security operations within its area of responsibility for the purpose of maintaining peace and order. As part of its duty to maintain peace and order, the NCRDC installed checkpoints in various parts of Valenzuela, Metro Manila.

Petitioners claim that because of these checkpoints, the residents of Valenzuela, MM are worried of being harassed and of their safety being placed at the arbitrary, capricious and whimsical disposition of the military authorities manning the checkpoints considering that their cars and vehicles are being subjected to regular searches and check-ups, especially at night or dawn, without the benefit of a search warrant and/or court order.

2. On July 9, 1988 at dawn, the apprehensions of the residents of Valenzuela increased because Benjamin Parpon, the supply officer of the Municipality of Valenzuela was gunned down in cold blood by the military men manning the checkpoints for ignoring or refusing to submit himself to the checkpoint and for continuing to speed off inspite of several warning shots fired in the air.

Issue:

Whether or not the existence of said checkpoints as well as the periodic searches and seizures made by the military authorities without search warrant valid?

Held:

Petitioners’ concern for their safety and apprehension at being harassed by the military manning the checkpoints are not sufficient grounds to declare the checkpoints as per se illegal.

Not all searches and seizures are prohibited. Those which are reasonable are not forbidden. A reasonable search is not to be determined by any fixed formula but is to be resolved according to the facts of each case.

Where, for example, the officer merely draws aside the curtain of a vacant vehicle which is parked on a public fair grounds (People vs. Case, 190 MW 289), or simply looks into a vehicle (State vs. Gaina, 97 SE 62), or flashes a light therein (Rowland vs. Commonwealth, 259 SW 33), these do not constitute unreasonable search.

The setting up of checkpoints in Valenzuela, Metro Manila may be considered as security measure to effectively maintain peace and order and to thwart plots to destabilize the government.  In this connection, the Court may take judicial notice of the shift to urban centers and their suburbs of the insurgency movement, so clearly reflected in the increased killings in cities of police and military men by NPA’s “sparrow units,” not to mention the abundance of unlicensed firearms.

BETWEEN THE INHERENT RIGHT OF THE STATE TO PROTECT ITS EXISTENCE AND PROMOTE PUBLIC WELFARE AND AN INDIVIDUAL’S RIGHT AGAINST A WARRANTLESS SEARCH WHICH IS HOWEVER REASONABLY CONDUCTED, THE FORMER SHALL PREVAIL.

True, the manning of these checkpoints by the military is susceptible of abuse by the men in uniform, in the same manner that all governmental power is susceptible to abuse. BUT , AT THE COST OF OCCASIONAL INCONVENIENCE, DISCOMFORT AND EVEN IRRITATION TO THE CITIZEN, THE CHECKPOINTS DURING THESE ABNORMAL TIMES ARE PART OF THE PRICE WE PAY FOR AN ORDERLY SOCIETY AND PEACEFUL COMMUNITY.

Finally, it must be emphasized that on July 17, 1988, the military checkpoints in Metro Manila were temporarily lifted and a review and refinement of the rules in the conduct of the police and military manning the checkpoints upon order of the NCRDC Chief.

Cruz and Sarmiento, JJ., dissenting:

The bland declaration by the majority that individual rights must yield to the demands of national security ignores the fact that the Bill of Rights was intended precisely to limit the authority of the State even if asserted on the ground of national security.

RESOLUTION  ON  THE MOTION  FOR RECONSIDERATION, JUNE  15, 1990

Very  Important:

     The Supreme Court in its Resolution of the Motion for Reconsideration dated 15 June, 1990, held that military and police checkpoints are not illegal as these measures to protect the government and safeguards the lives of the people. The checkpoints are legal as where the survival of the organized government is on the balance, or where the lives and safety of the people are in grave peril. However, the Supreme Court held further that the military officers manning the checkpoints may conduct VISUAL SEARCH ONLY, NOT BODILY SEARCH.

Read also the RESOLUTION  ON  THE MOTION  FOR RECONSIDERATION dated JUNE 15, 1990, 185 SCRA 665

Read also:

1-a. Rizal Alih vs. Gen. Castro, June 23,1987

1-b. P s. Cendana, October 17, 1990

1-c. P. vs. Castiller, August 6, 1990

1-d. P. vs. Olaes, July 30, 1990

2. Papa vs. Mago, 22 SCRA 857

3. Roldan vs. Arca, 65 SCRA 336

4. P. vs. CFI, 101 SCRA 86

5. Pacis vs. Pamaran, 56 SCRA 16

6. Lopez vs. Commisioner, 65 SCRA 336

7. P vs. Cruz, 165 SCRA 135

8. Nolasco vs. Pano, 147 SCRA 509 & 139 SCRA              152

9. P vs. Claudio, 160 SCRA 646 (There is a valid warrantless search if a NARCOM officer arrests the person who owns a bag which contains marijuana which he found out when he smelled the same. Here , there is a probable cause since he was personal knowledge due to his expertise on drugs)

2.            PEOPLE VS. DEL ROSARIO, July 10, 1994. (After the informant was given by the police the amount of P100.00, he went to buy marijuana from the accused then return to the police headquarters with said article. Thereafter, the policemen went to arrest the accused without warrant. The arrest is not valid since it does not fall under Section 5 Rule 113)

Likewise, after securing a search warrant authorizing the seizure of shabu and its paraphernalia and instead, an unlicensed firearm was seized instead, said gun is inadmissible in evidence.

k. May a non-judicial officer issue a warrant of  arrest? (NO)

Read:

1.            Harvey vs. Miriam Defensor-Santiago, June 26,1988

2.            Moreno vs. Vivo, 20 SCRA 562

3.            Lim vs. Ponce de Leon, 66 SCRA 299

4.            HORTENCIA SALAZAR VS. HON TOMAS ACHACOSO, G.R. NO. 81510, March 14, 1990 (En banc)

5.            Presidential Anti_Dollar Salting Task Force vs.  CA, March 16, 1989

l. Properties subject to seizure

Read:

1. Sec. 2, Rule 126,1985 Rules on Crimial Procedure, as amended

2. ESPANO VS. CA, 288 SCRA 558

m. Warrantless searches and arrests

Read:

1. P. vs. Bati, August 27, 1990

1-a. Manuel et al., vs. Judge Tirso Velasco, GR No. 84666, February 9, 1989

1-b. Garcia-Padilla vs. Enrile,121 SCRA 47 &               137 SCRA 647

1-c. P. vs. Maspil, Jr., August 20, 1990 (Compare with P. vs. Aminnudin, July 6, 1988, supra)

1-d. Posadas vs. CA, Aug. 2, 1990

1-e. P. vs. De la Cruz

1-f. P. vs. ortiz, Dec. 3, 1990

1-g. Rolito Go vs. CA, Feb. 11, 1992

1-h. People vs. Mati, January 18, 1991

2. Morales vs. Ponce Enrile, 121 SCRA 538

2-a. P vs. Burgos, 144 SCRA 1

2-b. People vs. de la Cruz, 184 SCRA 416

2-c. Gatchalian vs. Board, May 31, 1991

2-d. People vs. Sucro, March 18, 1991

2-e. PEOPLE VS. SOLAYAO, 262 SCRA 255

2-f. PEOPLE VS. CUISON, 256 SCRA 325

2-g. PEOPLE VS. DAMASO, 212 SCRA 547

2-h. OPOSADAS VS. CA, 258 SCRA 188

2-i. PEOPLE VS. JUATAN, 260 SCRA 532 (Buy-bust operation)

3. Sec. 6, Rule 113, 1985 Rules on Criminal Procedure, as amended

n. Effect posting bail or entering a plea during the arraignment, if the arrest was  illegal. (The alleged illegality of the arrest is deemed waived upon posting of the bond by the accused)

PEOPLE VS. GALVEZ, 355 SCRA 246

Mendoza, J.

           The policeman  arrested the accused-appellant on the basis solely of what Reynaldo Castro had told him and not because he saw the accused-appellant commit the crime charged against him. Indeed, the prosecution admitted that there was no warrant of arrest issued against accused-appellant when the latter was taken into custody. Considering that the accused-appellant was not committing a crime at the time he was arrested  nor did the arresting officer have any personal knowledge of facts indicating that accused-appellant committed a crime, his arrest without a warrant cannot be justified.

However, by entering a plea of not guilty during the arraignment, the accused-appellant waived his right to raise the issue of illegality of his arrest. IT IS NOW SETTLED THAT OBJECTION TO A WARRANT OF ARREST OR THE PROCEDURE BY WHICH A COURT ACQUIRES JURISDICTION OVER THE PERSON OF AN ACCUSED MUST BE MADE BEFORE HE ENTERS HIS PLEA, OTHERWISE, THE OBJECTION IS DEEMED WAIVED. THE FACT THAT THE ARREST WAS ILLEGAL DOES NOT RENDER THE SUBSEQUENT PROCEEDINGS VOID AND DEPRIVE THE STATE OF ITS RIGHT TO CONVICT THE GUILTY WHEN ALL THE FACTS POINT TO THE CULPABILITY OF THE ACCUSED.

Read:

1.            Callanta vs. Villanueva, 77 SCRA 377

2.            PEOPLE VS. NAZARENO, 260 SCRA 256

3.            FILOTEO VS. SANDIGANBAYAN, 263 SCRA 222

4.            PEOPLE VS. NAZARENO, 260 SCRA 256

5.            PEOPLE VS. LAPURA, 255 SCRA 85

6.            PEOPLE VS. SILAN, 254 SCRA 491

o . Penalty for illegal arrest

Read:

Palon vs. NAPOLCOM, May 28, 1989

p. Judicial pronouncements on illegally seized          evidence, 106 SCRA 336

q. The exclusionary rule,155 SCRA 494

n. What is the status of a document obtained through subpoena?

Read:

Dianalan vs. Pros., Office of the Tanodbayan, Nov. 27, 1990

r. Search warrant for pirated video tapes

1.            Century Fox vs. CA, 164 SCRA 655 (The master copy of the allegedly pirated tape should be presented before the judge in order to convince him of the existence of probable cause)

2.            COLUMBIA PICTURES VS. CA, 261 SCRA 144

LATEST CASES ON SEARCH AND SEIZURES

UY VS. BIR, 344 SCRA 36

          The following are the requisites of a valid search warrant:

1.            The warrant must be issued upon probable cause;

2.            The probable cause must be determined by the judge himself and not by applicant or any other person;

3.            In determining probable cause, the judge must examine under oath and affirmation the complainant and such  witnesses as the latter may produce; and

4.            The warrant issued must particularly describe the place to be searched and the person or things to be seized.

            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 and distinguish it from other places in the community. Search warrants are not issued on loose, vague or doubtful basis of fact, nor on mere suspicion or belief. In this case, most of the items listed in the warrants fail to meet the test of particularity, especially since the witness had furnished the judge photocopies of the documents sought to be seized. THE SEARCH WARRANT IS SEPARABLE, AND THOSE ITEMS NOT PARTICULARLY DESCRIBED MAY BE CUT OFF WITHOUT DESTROYING THE WHOLE WARRANT.

PEOPLE VS. VALDEZ, 341 SCRA 25

            The protection against unreasonable search and seizure covers both innocent and guilty alike against any form of highhandedness of law enforces.

            The “plain view” doctrine,  which may justify a search without warrant, APPLIES ONLY WHERE THE POLICE OFFICER IS NOT SEARCHING FOR EVIDENCE AGAINS THE ACCUSED, BUT INADVERTENTLY COMES ACROSS AN INCRIMINATING OBJECT.

            Just because the marijuana plants were found in an unfenced lot does nor prevent the appellant from invoking the protection afforded by the Constitution. The right against unreasonable search and seizure is the immunity of one’s person, which includes his residence, papers and other possessions. For a person to be immune against unreasonable searches and seizures, he need not be in his home or office, within a fenced yard or private place.

PEOPLE VS. BAULA, 344 SCRA 663

            In case of consented searches or waiver of the constitutional guarantee against obtrusive searches, it is fundamental that to constitute waiver, IT MUST APPEAR THAT THE RIGHT EXISTS; THE PERSONS INVOLVED HAD KNOWLEDGE, EITHER ACTUAL OR CONSTRUCTIVE, of the existence of such right. The third condition did not exist in the instant case. Neither was the search incidental to a valid warrantless arrest. (PEOPLE VS. FIFUEROA, July 6, 2000) An alleged consent to a warrantless search and seizure cannot be based merely on the presumption of regularity in the performance of official duty. THE PRESUMPTION BY ITSELF, CANNOT PREVAIL AGAINST THE CONSTITUTIONALLY PROTECTED RIGHTS OF AN INDIVIDUAL, AND ZEAL IN THE PURSUIT OF CRIMINALS CANNOT ENNOBLE THE USE OF ARBITRARY METHODS THAT THE CONSTITUTION ITSELF ABHORS.

 

CONSTITUTIONAL LAW

CHAPTER V – THE RIGHT TO PRIVACY

Section 3. 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.

Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.

Read:

NOTE: Applicable provisions of the Human Security Act/Anti-Terrorism Law, Republic Act No. 9372, Approved on March 6, 2007 and effective on July 15, 2007 (This Law shall be automatically suspended one (1) month before and two (2) months after the holding of any election).

Please observe the procedure in obtaining the “The Warrant [or Order] of Surveillance”,not found in the 1987 Philippine Constitution.

SURVEILLANCE OF SUSPECTS AND INTERCEPTION AND RECORDING OF COMMUNICATIONS OF SUSPECTS OR CHARGED OF TERRORISM

Section 7. Surveillance of suspects and interception and recording of communications. The provisions of RA 4200 (Anti-Wiretapping Law) to the contrary notwithstanding, a police or law enforcement official and the members of his team may, upon a written order of the Court of Appeals, listen to, intercept and record, with the use of any mode, form or kind or type of electronic or other surveillance equipment or intercepting and tracking devices, or with the use of any other suitable ways or means for that purpose, any communication, message, conversation, discussion, or spoken or written words between members of a judicially declared and outlawed terrorist organization, association, or group of persons or of any person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism.

Provided, That surveillance, interception and recording of communications between lawyers and clients, doctors and patients, journalists and their sources and confidential business correspondence shall not be authorized.

Section 8. Formal Application for Judicial Authorization.- The written order of the authorizing division of the Court of Appeals to track down, tap, listen, intercept, and record communications, messages, conversations, discussions, or spoken or written words of any person suspected of the crime of terrorism or the crime of conspiracy to commit terrorism, shall only be granted by the authorizing division of the Court of Appeals UPON AN EX-PARTE written application of a police or law enforcement official who has been duly authorized in writing by the Anti-Terrorism Council created in Section 53 of this Act to file such ex-parte application, and upon examination under oath and affirmation of the applicant and the witnesses who may produce to establish:

  • That there is probable cause to believe based on personal knowledge of facts and circumstances that the said crime of terrorism or conspiracy to commit terrorism has been committed, or is being committed, or is about to be committed;
  • That there is probable cause to  believe based on personal knowledge of facts and circumstances that evidence which is essential to the conviction of any charged or suspected person for, or to the solution or prevention of any such crimes, will be obtained; and
  • That there is no other effective means readily available for acquiring such evidence.

Sec. 9. Classification and Contents of the Order of the Court. The written order granted by the authorizing division of the Court of Appeals as well as its order, if any, to extend or renew the same, the original application of the applicant, including his application to extend or renew, if any, and the written authorizations of the Anti-Terrorism Council shall be deemed and are hereby declared as classified information: Provided, That the person being surveilled or whose communications, letters, papers, messages, conversations, discussions, spoken or written words and effects have been monitored, listened to, bugged or recorded by law enforcement authorities has the right to be informed of the acts done by the law enforcement authorities in the premises or to challenge, if he or she intends to do so, the legality of the interference before the Court of Appeals which issued said written order. The written order of the authorizing division of the court of Appeals shall specify the following:

  • The identity, such as name and address, if known, of the charged of suspected persons whose communications, messages, conversations, discussions, or spoken or written words are to be tracked down, tapped, listened to, intercepted or recorded and, in case of radio, electronic, or telephone (whether wireless or otherwise) communications, messages, conversations, discussions, or spoken or written words, the electronic transmission systems or the telephone numbers to be tracked down, tapped, listened to, intercepted, and recorded and their locations if the person suspected of the crime of terrorism or conspiracy to commit terrorism is not fully known, such person shall be subject to continuous surveillance  provided there is reasonable ground to do so;
  • The identity (name and address, and the police or law enforcement organization) of the members of his team judicially authorized to track down, tap, listen to, intercept, and record the communications, messages, conversations, discussions, or spoken or written words;
  • The offense or offenses committed, or being committed, or sought to be prevented; and
  • The length of time which the authorization shall be used or carried out.

Section. 10. Effective Period of Judicial Authorization.  Any authorization granted by the authorizing division of the court of Appeals…shall only be effective for the length of time specified in the written order of the authorizing division of the Court of Appeals, which shall not exceed 30 days from the date of receipt of the written order of the authorizing division of the court of Appeals by the applicant police or law enforcement official.

The CA may extend or renew the said authorization for another non-extendible period, which shall not exceed 30 days from the expiration of the original period…The ex-parte application for renewal has been duly authorized by the Anti-terrorism Council in writing.

If no case is filed within the 30-day period, the applicant police or law enforcement official shall immediately notify the person subject  of the surveillance, interception, and recording of the termination of the said surveillance, interception and recording. [Penalty to be imposed on the police official who fails to inform the person subject of surveillance of the termination of the surveillance, monitoring, interception and recording shall be penalized to 10 years and 1 day to 12 years.

Section 15. Evidentiary Value of Deposited Materials. Any listened to, intercepted, and recorded communications, messages, conversations…WHICH HAVE BEEN SECURED IN VIOLATION OF THE PERTINENT PROVISIONS OF THIS ACT, SHALL ABSOLUTELY NOT BE ADMISSIBLE AND USABLE AS EVIDENCE AGAINST ANYBODY IN ANY JUDICIAL, QUASI-JUDICIAL, LEGISLATIVE, OR ADMINISTRATIVE INVESTIGATION, INQUIRY, PROCEEDING, OR HEARING.

JUDICIAL AUTHORIZATION TO EXAMINE BANK DEPOSITS, ACCOUNTS,  AND RECORDS OF SUSPECTED OR CHARGED TERRORISTS

Section 27. judicial authorization required to examine bank deposits, accounts and records.

The justices of CA designated as special court to handle anti-terrorism cases after satisfying themselves of the existence of probable cause in a hearing called for that purpose that:

  • A person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism;
  • Of a judicially declared and outlawed terrorist organization or group of persons;
  • Of a member of such judicially declared and outlawed organization, association or group of persons, may authorize in writing any police or law enforcement officer and the members of his team duly authorized in writing by the anti-terrorism council to:

1.            examine or cause the examination of, the deposits, placements, trust accounts, assets, and records in a bank or financial institution; and

2.            gather or cause the gathering of any relevant information about such deposits, placements, trust accounts, assets, and records from a bank or financial institution. The bank or financial institution shall not refuse to allow such examination or to provide the desired information, when so ordered by and served with the written order of the Court of Appeals.

Sec. 28. Application to examine deposits, accounts and records.

The written order of the CA authorizing the examination of bank deposits, placements, trust accounts, assets and records:

  • A person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism;
  • Of a judicially declared and outlawed terrorist organization or group of persons;
  • Of a member of such judicially declared and outlawed organization, association or group of persons, in a bank or financial institution-

-SHALL ONLY BE GRANTED BY THE AUTHORIZING DIVISION OF THE CA UPON AN EX-PARTE APPLICATION TO THAT EFFECT OF A POLICE OR LAW ENFORCEMENT OFFICIAL who has been duly authorized by the Anti-Terrorism Council to file such ex-parte application and upon examination under oath or affirmation of the applicant and his witnesses he may produce to establish the facts that will justify the need and urgency of examining and freezing the bank deposits, placements, trust accounts, assets and records:

  • Of A person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism;
  • Of a judicially declared and outlawed terrorist organization or group of persons;
  • Of a member of such judicially declared and outlawed organization, association or group of persons.

Section 35. Evidentiary value of deposited bank materials.- Any information, data, excerpts, summaries, notes, memoranda, work sheets, reports or documents acquired from the examination of the bank deposits, placements, trust accounts, assets and records of:

  • A person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism;
  • Of a judicially declared and outlawed terrorist organization or group of persons;
  • Of a member of such judicially declared and outlawed organization, association or group of persons,

-which have been secured in violation of the provisions of this Act, shall absolutely not be admissible and usable as evidence against anybody in any judicial, quasi-judicial, legislative or administrative investigation, inquiry, proceeding or hearing.

1. PEOPLE VS. CABALQUINTO, September 19, 2006, 502 SCRA 419

2. ZULUETA VS. CA, February 10, 1996

The wife forcibly opened the drawers at the clinic of her doctor-husband and took diaries, checks and greeting cards  of his alleged paramours. Thereafter, she used the same in their legal separation case. Said documents are inadmissible in evidence. This is so because the intimacies of husband and wife does not justify the breaking of cabinets to determine marital infidelity.

3. OPLE VS. TORRES, July 23, 1998

Puno, J.

Facts:

          On December 12, 1996, then President FIDEL V. RAMOS issued Administrative Order No. 308 entitled “ADOPTION OF A NATIONAL COMPUTERIZED IDENTIFICATION REFERENCE SYSTEM”.

The AO seeks to have all Filipino citizens and foreign residents to have a Population Reference Number (PRN) generated by the National Statistics Office (NSO) through the use of BIOMETRICS TECHNOLOGY .

The AO was questioned by Senator Ople on the following grounds:

1.            The establishment of the PRN without any law is an unconstitutional usurpation of the legislative powers of the Congress of the Philippines;

2.            The appropriation of public funds for the implementation of the said AO is unconstitutional since Congress has the exclusive authority to appropriate funds for such expenditure; and

3.            The AO violates  the citizen’s right to privacy protected by the Bill of Rights of the Constitution.

Held:

1.            The AO establishes a system of identification that is all-encompassing in scope, affects the life and liberty of every Filipino citizens and foreign residents and therefore, it is supposed to be a law passed by Congress that implements it, not by an Administrative Order issued by the President. Administrative Power,  which is supposed to be exercised by the President, is concerned with the work of applying policies and enforcing orders as determined by  proper governmental organs. It enables the President to fix a uniform standard of administrative efficiency and check the official conduct of his agents. Prescinding from the foregoing precepts, AO 308 involves a subject that is  not appropriate to be covered by an Administrative Order. An administrative order is an ordinance issued by the President which relates to specific aspects in the administrative operation of the government. It must be in harmony with the law and should be for the sole purpose of implementing the law and carrying out the legislative policy. The subject of AO 308 therefore is beyond the power of the President to issue and it is a usurpation of legislative power.

2.            The AO likewise violates the right to privacy since its main purpose is to provide a “common reference number to establish a linkage among concerned agencies through the use of BIOMETRICS TECHNOLOGY. Biometry is the science of the application of statistical methods to biological facts; a mathematical analysis of a biological data. It is the confirmation of an individual’s identity through a fingerprint, retinal scan, hand geometry or  facial features. Through the PRN, the government offices has the chance of building a huge and formidable information base through the electronic linkage of the files of every citizen. The data, however, may be gathered for gainful and useful government purposes; but the existence of this vast reservoir of personal information constitutes a covert invitation to misuse, a temptation that may be too great for some of our authorities to resist.

Further, the AO does not even tells us in clear and unequivocal terms how these informations gathered shall be handled. It does not provide who shall control and access the data and under what circumstances and for what purpose. These factors are essential to safeguard the privacy and guaranty the integrity of the information. The computer linkage gives other government agencies access to the information. YET, THERE ARE NO CONTROLS TO GUARD AGAINST LEAKAGE OF INFORMATIONS. WHEN THE ACCESS CODE OF THE CONTROL PROGRAMS OF THE PARTICULAR COMPUTER SYSTEM IS BROKEN, AN INTRUDER, WITHOUT FEAR OF SANCTION OR PENALTY, CAN MAKE USE OF THE DATA FOR WHATEVER PURPOSE, OR WORSE, MANIPULATE THE DATA STORED WITHIN THE SYSTEM.

AO No. 308 is unconstitutional since it falls short of assuring that personal information gathered about our people will be used only for specified purposes thereby violating the citizen’s right to privacy.

KILUSANG MAYO UNO VS. EXECUTIVE SECRETARY EDUARDO ERMITA, ET AL., April 19, 2006 & June 20, 2006

BAYAN MUNA VS. EXECUTIVE SECRETARY EDUARDO ERMITA, ET AL., April 19, 2006 & June 20, 2006

Carpio, J.

President Gloria Macapagal-Arroyo issued Presidential Proclamation No. 420 that mandates the Adoption of a Unified, Multi-purpose Identification System by all Government Agencies in the Executive Department. This is so despite the fact that the Supreme Court held in an En Banc decision in 1998 OPLE VS. EXECUTIVE SECRETARY RUBEN TORRES Administrative Order No. 308[National computerized Identification Reference System] issued by then President Fidel V. Ramos that the same is unconstitutional because “a national ID card system requires legislation because it creates a new national data collection and  card issuance system, where none existed before”. The Supreme Court likewise held that EO 308 as unconstitutional for it violates the citizen’s right to privacy.

Based on the Ople ruling, the petitioners claimed that Proclamation No. 420 is unconstitutional on two (2) grounds:

a.            usurpation of legislative powers; and

b.            it infringes on the citizen’s right to privacy

Held:

The said Executive Order No. 420 does not violate the citizen’s right to privacy since it does not require all the citizens to be issued a national ID as what happened in AO 308. Only those dealing or employed with the said government entities who are required to provide the required information for the issuance of the said ID.

CAMILO L. SABIO vs. GORDON, G.R. No. 174340,  October 17, 2006, 504 SCRA 704

Sandoval-Gutierrez, J.

The Facts:

On February 20, 2006, Senator Miriam Defensor Santiago introduced Philippine Senate Resolution No. 455 (Senate Res. No. 455),[1][4] “directing an inquiry in aid of legislation on the anomalous losses incurred by the Philippines Overseas Telecommunications Corporation (POTC),  Philippine Communications Satellite Corporation (PHILCOMSAT), and PHILCOMSAT Holdings Corporation (PHC) due to the alleged improprieties in their operations by their respective Board of Directors.”

On May 8, 2006, Chief of Staff  Rio C. Inocencio, under the authority of Senator Richard J. Gordon, wrote Chairman Camilo L. Sabio of the PCGG, one of the herein petitioners, inviting him to be one of the resource persons in the public meeting jointly conducted by the Committee on Government Corporations and Public Enterprises and Committee on Public Services.  The purpose of the public meeting was to deliberate on Senate Res. No. 455.[2][6]

On May 9, 2006, Chairman Sabio and other commissioners of the PCGG declined the invitation because of prior commitment.[3][7] At the same time, they invoked Section 4(b) of           E.O. No. 1 earlier quoted.

On September 12, 2006, at around 10:45 a.m., Major General Balajadia arrested Chairman Sabio in his office at IRC Building, No. 82 EDSA, Mandaluyong City and brought him to the Senate premises where he was detained.

Hence, Chairman Sabio filed with the Supreme Court a petition for habeas corpus against the Senate Committee on Government Corporations and Public Enterprises and Committee on Public Services, their Chairmen, Senators Richard Gordon and Joker P. Arroyo and Members.

I S S U E S:

Is the investigation conducted on the petitioners violative of their right to privacy?

H E L D:

The claim of immunity is without merit.

Zones of privacy are recognized and protected in our laws.[4][46]  Within these zones, any form of intrusion is impermissible unless excused by law and in accordance with customary legal process. The meticulous regard we accord to these zones arises not only from our conviction that the right to privacy is a “constitutional right” and “the right most valued by civilized men,”[5][47] but also from our adherence to the Universal Declaration of Human Rights which mandates that, “no one shall be subjected to arbitrary interference with his privacy” and “everyone has the right to the protection of the law against such interference or attacks.”[6][48]

Our Bill of Rights, enshrined in Article III of the Constitution, provides at least two guarantees that explicitly create zones of privacy. It highlights a person’s “right to be let alone” or the “right to determine what, how much, to whom and when information about himself shall be disclosed.”[7][49]   Section 2  guarantees  “the  right  of  the  people  to be secure in their persons,  houses,  papers and effects against unreasonable searches and seizures of whatever nature and for any purpose.”   Section 3 renders  inviolable  the  “privacy  of  communication and correspondence” and  further  cautions  that  “any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.”

In evaluating a claim for violation of the right to privacy, a court must determine whether a person has exhibited a reasonable expectation of privacy and, if so, whether that expectation has been violated by unreasonable government intrusion.[8][50]   Applying this determination to these cases, the important inquiries are: firstdid the directors and officers of Philcomsat Holdings Corporation exhibit a reasonable expectation of privacy?; and second, did the government  violate  such  expectation?

The answers are in the negative. Petitioners were invited in the Senate’s public hearing to deliberate on Senate Res. No. 455, particularly   “on the anomalous losses incurred by the Philippine Overseas Telecommunications Corporation (POTC), Philippine Communications Satellite Corporation (PHILCOMSAT), and Philcomsat Holdings Corporations (PHC) due to the alleged improprieties in the operations by their respective board of directors.”   Obviously, the inquiry focus on petitioners’ acts committed in the discharge of their duties as officers and directors of the said corporations, particularly Philcomsat Holdings Corporation.  Consequently, they have no reasonable expectation of privacy over matters involving their offices in a corporation where the government has interest. Certainly, such matters are of public concern and over which the people have the right to information.

This goes to show that the right to privacy is not absolute where there is an overridingcompelling state interest.   In Morfe v. Mutuc,[9][51] the Court, in line with Whalen v. Roe,[10][52] employed the rational basis relationship test when it held that there was no infringement of the individual’s right to privacy as the requirement to disclosure information is for a valid purpose, i.e., to curtail and minimize the opportunities for official corruption, maintain a standard of honesty in public service, and promote morality in public administration.[11][53] In Valmonte v. Belmonte,[12][54] the Court remarked that as public figures, the Members of the  former Batasang Pambansa enjoy a more limited right to privacy as compared to ordinary individuals, and their actions are subject to closer scrutiny.  Taking this into consideration, the Court ruled that the right of the people to access information on matters of public concern prevails over the right to privacy of financial transactions.  

Under the present circumstances, the alleged anomalies in the PHILCOMSAT, PHC and POTC, ranging in millions of pesos, and the conspiratorial participation of the PCGG and its officials are compelling reasons for the Senate to exact vital information from the directors and officers of Philcomsat Holdings Corporations, as well as from Chairman Sabio and his Commissioners to aid it in crafting the necessary legislation to prevent corruption and formulate remedial measures and policy determination regarding PCGG’s efficacy.  There being no reasonable expectation of privacy on the part of those directors and officers over the subject covered by Senate Res. No. 455, it follows that their right to privacy has not been violated by respondent Senate Committees.

Let it be stressed at this point that so  long as the constitutional rights of witnesses, like Chairman Sabio and his Commissioners,  will be respected by respondent Senate Committees, it their duty to cooperate with them in their efforts to obtain the facts needed for intelligent legislative action. The unremitting obligation of every citizen is to respond to subpoenae, to respect the dignity of the Congress and its Committees, and to testify fully with respect to matters within the realm of proper investigation.

In fine, PCGG Chairman Camilo Sabio and Commissioners Ricardo Abcede, Narciso Nario, Nicasio Conti, and Tereso Javier; and Manuel Andal and Julio Jalandoni, PCGG’s nominees to Philcomsat Holdings Corporation, as well as its directors and officers, must comply with the Subpoenae Ad Testificandum issued by respondent Senate Committees directing them to appear and testify in public hearings relative to Senate Resolution No. 455.

[1][4]      Annex “E” of the Petition in G.R. No. 174318.

[2][6]      Annex “F” of the Petition in G.R. No. 174318.

[3][7]      Annex “G” of the Petition in G.R. No. 174318.

[4][46]     Marquez v. Desierto, G.R. No. 135882, June 27, 2001, 359 SCRA 772.

[5][47]               See Morfe v. Mutuc  No. L-20387, January 31, 1968, 22 SCRA 424.

[6][48]     Article 12 of the Universal Declaration of Human Rights. See also Article 17 (1) and (2) of the International Covenant on Civil and Political Rights.

[7][49]     Constitutional and Legal Systems of ASEAN Countries, Sison, Academy of ASEAN Law and Jurisprudence, 1990, at 221, citing I.R. Cortes, The Constitutional Foundations of Privacy, 7 (1970).

[8][50]     Burrows v. Superior Court of San Bernardino County, 13 Cal. 3d 238, 529 P 2d 590 (1974).   See Katz v. United states (1967), 389 U.S. 347, 350-352, 88 S. Ct. 507, 19 L. Ed. 2d 576; People v. Krivda (1971) 5 Cal. 3d 357, 364, 96 Cal. Rptr. 62, 486 P. 2d 1262; 8 Cal. 3d 623-624,105 Cal. Rptr. 521, 504 P. 2d 457. INSERT  Herrera’s Handbook on Arrest, Search and Seizure.

[9][51]     Supra.

[10][52]    429 U.S. 589 (1977).

[11][53]    Justice Puno, Lecture on Legislative Inquiry and Right to Privacyp. 60.

[12][54]    170 SCRA 256 (1989)

 

CONSTITUTIONAL LAW

CHAPTER VI – FREEDOM OF SPEECH, PRESS, EXPRESSION, etc.

Section 4. 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 the redress of their grievances.

NOTE: Applicable provisions of the Human Security Act/Anti-Terrorism Law, Republic Act No. 9372, Approved on March 6, 2007 and effective on July 15, 2007 (This Law shall be automatically suspended one (1) month before and two (2) months after the holding of any election)

Section 26 provides that persons who have been charged with terrorism or conspiracy to commit terrorism—even if they have been granted bail because evidence of guilt is not strong—can be:

  • Detained under house arrest;
  • Restricted from traveling; and/or
  • Prohibited from using any cellular phones, computers, or other means of communications with people outside their residence.

1. Rule on criticisms against acts of public officers

Read:

1. Espuelas vs. People, 90 Phil. 524

2. US vs. Bustos, 37 Phil. 731 (A public official should not be  onion-skinned with reference to comments upon his official acts. The interest of the government and the society demands full discussion of public affairs)

3. P. vs. Perez, 45 Phil. 599

4. Mercado vs. CFI, 116 SCRA 93

2. Freedom of the press, in general

Read:

BAGUIO MIDLAND COURIER & CECILLE AFABLE VS. COURT OF APPEALS & RAMON LABO, JR., 444 SCRA 28 [November 25, 2004]

Freedom of Expression; the public has the right to be informed on the mental, moral and physical fitness of candidates for public office.

FACTS:

1.            In the January 3, 1988 issue of the Baguio Midland Courier (BMC),  Cecille Afable, the Editor-in-Chief, in her column “In and Out of Baguio”  made the following comments:

“Of all the candidates for Mayor of Baguio City), Labo has the most imponderables about him. People would ask: “can he read and write”? Why is he always talking about his Japanese father-in-law? Is he really a Japanes Senator or a barrio Kapitan? Is it true that he will send P18M aid to Baguio? Somebody wanted to put an advertisement of Labo in the Midland Courier but was refused because he has not yet paid his account of the last time he was a candidate for Congress. We will accept all advertisements for him if he pays his old account first.”

2.            In the same column, Cecille Afable wrote the following comments in her  January 10, 1988 column at the Courier:

“I heard that the ‘Dumpty in the Egg’ is campaigning for Cortes. Not fair. Some real doctors are also busy campaigning against Labo because he has not also paid their medical services with them. Since he is donating millions he should also settle his small debts like the reportedly insignificant amount of P27,000 only. If he wins, several teachers were signifying to resign and leave Baguio forever, and Pangasinan will be the franca-liqua of Baguio.”

3.            As a result of the above articles, Ramon Labor, Jr. filed a complaint for Damages  before the regional trial Court of Baguio City as he claimed said articles were libelous. He likewise filed a separate criminal complaint before the Office of the City Prosecutor of Baguio but was dismissed;

4.            Labo claimed that the said articles were tainted with malice because he was allegedly described as “Dumpty in the Egg”  or one “who is a failure in his business” which is false because he is a very successful businessman or to mean “zero or a big lie”;  that he is a “balasubas” due to his alleged failure to pay his medical expenses;

The petitioners, however, were able to prove that Labo has an unpaid obligation to the Courier in the amount of P27,415.00  for the ads placed by his campaigners for the 1984 Batasang Pambansa elections;

The Regional Trial Court, Branch 6, Baguio City, in its Decision dated June 14, 1990 dismissed Labo’s complaint for damages on the ground that the article of petitioner Afable was privileged and constituted fair comment on matters of public interest as it dealt with the integrity, reputation and honesty of private respondent Labo who was a candidate for Mayor of Baguio City;

On January 7, 1992, the Court of Appeals reversed the RTC Decision and ordered the petitioners to pay Ramon Labo, Jr.  damages in the total amount of P350,000.00 after concluding that the “Dumpty in the Egg” refers to no one but Labo himself.

Hence, the Petition to the Supreme Court.

ISSUES:

1.            Was Labo the “Dumpty in the Egg” described in the questioned article/

2.            Were the articles subject of the case libelous or privileged/

HELD:

1.            The Court of Appeals is wrong when it held that Labo is the “Dumpty in the Egg” in the questioned article. This is so because the article stated that “The Dumpty in the Egg is campaigning for Cortes”, another candidate for mayor and opponent of Labo himself. It is unbelievable that Labo campaigned for his opponent and against himself. Although such gracious attitude on the part of Labo would have been commendable, it is contrary to common human experience. As pointed out by the petitioners, had he done that, it is doubtful whether he could have won as City Mayor of Baguio in the 1988 elections, which he actually did. In line with the doctrine in BORJAL VS. CA, 310 SCRA 1, that ‘it is also not sufficient that the offended party recognized himself as the person attacked or defamed, but it must be shown that at least a 3rd person could identify him as the object of the libelous publication’, the case should be dismissed since Labo utterly failed to dispose of this responsibility.

2.            Labo claims that the petitioners could not invoke “public interest” to justify the publication since he was not yet a public official at that time. This argument is without merit since he was already a candidate for City mayor of Baguio. As such, the article is still within the mantle of protection guaranteed by the freedom of expression provided in the Constitution since it is the public’s right to be informed of the mental, moral and physical fitness of candidates for public office. This was recognized as early as the case of US VS. SEDANO, 14 Phil. 338 [1909] and the case of NEW YORK TIMES VS. SULLIVAN, 376 U.S. 254where the US Supreme Court held:

“…it is of the utmost consequence that the people should discuss the character and qualifications of candidates for their suffrages. The importance to the State and to society of such discussions is so vast, and the advantages derived so great, that they more than counterbalance the inconvenience of private persons whose conduct may be involved, and occasional injury to the reputations of individuals must yield to the public welfare, although at times such injury may be great. The public benefit from publicity is so great and the chance of injury to private character so small, that such discussion must be privileged. “

Clearly, the questioned articles constitute fair comment on a matter of public interest as it dealt with the character of the private respondent who was running for the top elective post in Baguio City at that time.

            2. PABLITO V. SANIDAD VS. COMELEC,

   G.R. NO. 90878, January 29, 1990

 

Freedom of expression and of the press

(Note: Unanimous en banc decision)

Medialdea, J.

 

Facts:

1. On October 23, 1989, RA 6766, entitled “AN ACT PROVIDING FOR AN ORGANIC ACT FOR THE CORDILLERA AUTONOMOUS REGION” was enacted into law;

2. Pursuant to said law, the City of Baguio and Provinces of Benguet, Abra, Mt. Province, Ifugao and Kalinga-Apayao, all comprising the autonomous region shall take part in a plebiscite originally scheduled for December 27, 1989 but was reset to January 30, 1990 specifically for the ratification or rejection of the said act;

3. By virtue of the 1987 Constitution and the Omnibus Election Code (BP 881), the Comelec issued Comelec Resolution No. 2167, Section 19 of which provides:

“Section 19. Prohibition on columnist, commentators or announcers.- During the plebiscite campaign period, on the day before and on plebiscite day, no mass media columnist, commentator, announcer or personality shall use his column or radio or television time to campaign for or against the plebiscite issues.”

4. On November 20, 1989, petitioner PABLITO V. SANIDAD who is a columnist (“OVERVIEW”) for the Baguio Midland Courier, a weekly newspaper circulated in the City of Baguio and the Cordilleras, filed a petition for Prohibition with prayer for the issuance of a temporary restraining order or a writ of preliminary injunction against the Comelec to enjoin the latter from enforcing Section 19 of resolution No. 2167. Petitioner claims that the said provision is violative of his constitutional freedom of expression and of the press and it also constitutes a prior restraint because it imposes subsequent punishment for those who violate the same;

5. On November 28, 1989, the Supreme Court issued a temporary restraining order enjoining the respondent from enforcing Section 19 of Resolution No. 2167;

6. On January 9, 1990, Comelec through the Solicitor General filed its Comment and moved for the dismissal of the petition on the ground that Section 19 of Resolution No. 2167 does not absolutely bar the petitioner from expressing his views because under Section 90 and 92 of BP 881, he may still express his views or campaign for or against the act through the Comelec space and airtime.

Held:

What is granted by Art. IX-C of the Constitution to the Comelec is the power to supervise and regulate the use and enjoyment of franchises, permits or other grants issued for the operation of transportation or other public utilities to the end that equal opportunity, time and space, and the right to reply, including reasonable, equal rates therefor, for public information campaigns and forums among candidates are insured. The evil sought to be prevented by this provision is the possibility that a franchise holder may favor or give undue advantage to a candidate in terms of advertising time and space. This is also the reason why a columnist, commentator or announcer is required to take a leave of absence from his work during the campaign period if he is a candidate.

HOWEVER, NEITHER ARTICLE IX-C OF THE CONSTITUTION NOR SECTION 11(B), 2ND PAR. OF RA 6646 CAN BE CONSTRUED TO MEAN THAT THE COMELEC HAS ALSO BEEN GRANTED THE RIGHT TO SUPERVISE AND REGULATE THE EXERCISE BY MEDIA PRACTITIONERS THEMSELVES OF THEIR RIGHT TO  EXPRESSION DURING THE PLEBISCITE PERIODS. Media practitioners exercising their freedom of expression during the plebiscite periods are neither the franchise holders nor the candidates. In fact, there are no candidates in a plebiscite.

While it is true that the petitioner is not absolutely barred from campaigning for or against the Organic Act, said fact does not cure the constitutional infirmity of Section 19, Comelec Resolution No. 2167. This is so because IT IS STILL A RESTRICTION ON HIS CHOICE OF THE FORUM WHERE HE MAY EXPRESS HIS VIEW.

Plebiscite issues are matters of public concern and importance. The people’s right to be informed and to be able to freely and intelligently make a decision would be better served by access to an unabridged discussion of the issues, INCLUDING THE FORUM. The people affected by the issues presented in a plebiscite should not be unduly burdened by restrictions on the forum where the right to expression may be exercised.

ACCORDINGLY, Section 19 of Comelec Resolution No. 2167 is hereby declared UNCONSTITUTIONAL.

Read also:

1.            In re: Ramon Tulfo,March 19, 199

2.             In re: Atty. Emil Jurado, July 12, 1990

3.            Burgos vs. Chief of Staff, 133 SCRA 800

4.            Corro vs. Lising, 137 SCRA 448

5.            Babst vs. NIB, 132 SCRA 316

6.            Elizalde vs. Gutierrez,76 SCRA 448 (In order that any news item relating to a judicial proceeding will not be actionable, the same must be [a] a true and fair report of the actual proceedings; [b] must be done in good faith; and [c] no comments nor remarks shall be made by the writer}

7.             Policarpio vs. Manila Times, 5 SCRA 148

8.            Lopez vs. CA, 34 SCRA 116

9.            New York Times vs. Sullivan,376 U.S.254

10.          Liwayway Publishing vs. PCGG, April 15,l988

3. Freedom of expression in general

    Read:

1.            RANDY DAVID VS. ARROYO, May 3, 2006, 489 SCRA 160;

2.            Adiong vs. Comelec, March 31, 1992 (putting of decals and stickers in one’s car is within the protected freedom of expression)

3.            National Press Club vs. Comelec, March 5, 1992. Real also the dissenting and separate opinions of the justices. (Preventing campaigns through radio, TV and newspapers is valid in order to even the playing field between rich and poor candidates)

4.            Zaldivar vs. Sandiganbayan, GR No. 7960-707 &          Zaldivar vs. Gonzales, GR No. 80578, February          1, 1989

5.            Eastern Broadcasting vs. Dans,137 SCRA 628

6.            Newsweek vs. IAC, 142 SCRA 171

7.             Kapisanan vs. Camara Shoes, 11 SCRA 477

8.            IN RE: Atty. Tipon, 79 SCRA 372

9.            Lacsa vs. IAC, May 23,1988

10.         Kapunan vs. De Villa, December 6, 1988

4. Not within the protection of the freedom of     expression clause of the Constitution

1. Obscenity; test of

Read:

a. P. vs. Kottinger, 45 Phil. 352

a.            P vs. GO PIN, August 8, 1955

Tests:

a.            Whether the average person applying to contemporary community standards would find the  work appeals to prurient interest;

b.            Whether the work depicts or describes a patently offensive sexual conduct;

c.            Whether the work as a whole lacks serious literary , artistic, political or scientific value.

c. Miller vs. California, 37 L. Ed. 2d 419

d. Ginsberg vs. New York,390 U.S. 629

e. Pita vs. CA, 178 SCRA 362 (A City Mayor may not order the warrantless seizure of magazines which he believes to be obscene; otherwise, he will become the complainant, prosecutor and judge at the same time. He should obtain a search warrant from a judge)

2. Libel or slander; test of-

Read:

a. Lopez and Manila Times cases, supra

b. Quisumbing vs. Lopez, 96 Phil. 510

3. Cases undersub-judice

Read:

a. P. vs. Alarcon, 69 Phil. 265

5. Freedom of assembly and to petition the government      for redress of grievances

GESITE et al. vs. COURT OF APPEALS, 444 SCRA 51

Freedom of public school teachers to peaceably assemble and petition the government for redress of grievances; right of public school teachers to form union.

            The petitioners admitted that they participated in concerted mass actions in Metro Manila from September to the first half of October, 1990 which temporarily disrupted classes in Metro Manila but they claimed that they were not on strike. They claimed that they were merely exercising their constitutional right to peaceably assemble and petition the government for redress of their grievances. Thus, they may not be penalized administratively.

HELD:

The issue of whether or not the mass action launched by the public school teachers during the period from September up to the 1st half of October, 1990 was a strike or not has been decided in the case of MANILA PUBLIC SCHOOL TEACHERS ASSOCIATION VS. LAGUIO, 200 SCRA 323 where it was held that “these mass actions were to all intents and purposes a strike; they constituted a concerted and unauthorized stoppage of, or absence from, work which it was the teachers’ duty to perform, undertaken for essentially economic reasons.”

It is undisputed fact that there was a work stoppage and that petitioners’ purpose was to realize their demands by withholding their services. The fact that the conventional term “strike” was not used by the striking employees to describe their common course of action is inconsequential, SINCE THE SUBSTANCE OF THE SITUATION, AND NOT ITS APPEARANCE, WILL BE DEEMED CONTROLLING.

Despite the constitutional right to form associations under the Constitution, employees in the public service may not engage in strikes, mass leaves, walkouts and other forms of mass actions that will lead to temporary stoppage or disruption of public service. The right of government employees to organize IS LIMITED TO THE FORMATIONS OF UNIONS OR ASSOCIATIONS ONLY, WITHOUT INCLUDING THE RIGHT TO STRIKE. (Bangalisan vs. CA, 276 SCRA 619)

The petitioners are not therefore entitled to their salaries during their suspension because the general proposition is that a public official is not entitled to any compensation if he had not rendered any service.

BAYAN, KARAPATAN, KILUSANG MAGBUBUKID NG PILIPINAS (KMP),  and GABRIELA vs.EDUARDO ERMITA, in his capacity as Executive Secretary, Manila City Mayor LITO ATIENZA, Chief of the Philippine National Police, Gen. ARTURO M. LOMIBAO, NCRPO Chief Maj. Gen. VIDAL QUEROL, and Western Police District Chief Gen. PEDRO BULAONG G.R. No. 169848, May, 2006

AZCUNA, J.:

The Facts:

Petitioners come in three groups.

The first petitioners, Bayanet al., in G.R. No. 169838, allege that they are citizens and taxpayers of the Philippines and that their rights as organizations and individuals were violated when the rally they participated in on October 6, 2005 was violently dispersed by policemen implementing Batas Pambansa (B.P.) No. 880.

The second group consists of 26 individual petitioners, Jess del Pradoet al., in G.R. No. 169848, who allege that they were injured, arrested and detained when a peaceful mass action they held on September 26, 2005 was preempted and violently dispersed by the police.  They further assert that on October 5, 2005, a group they participated in marched to Malacañang to protest issuances of the Palace which, they claim, put the country under an “undeclared” martial rule, and the protest was likewise dispersed violently and many among them were arrested and suffered injuries.

The third group, Kilusang Mayo Uno (KMU), et al., petitioners in G.R. No. 169881, allege that they conduct peaceful mass actions and that their rights as organizations and those of their individual members as citizens, specifically the right to peaceful assembly, are affected by Batas Pambansa No. 880 and the policy of “Calibrated Preemptive Response” (CPR) being followed to implement it.

KMU, et al., claim that on October 4, 2005, a rally KMU co-sponsored was to be conducted at the Mendiola bridge but police blocked them along C.M. Recto and Lepanto Streets and forcibly dispersed them, causing injuries to several of their members.  They further allege that on October 6, 2005, a multi-sectoral rally which KMU also co-sponsored was scheduled to proceed along España Avenue in front of the University of Santo Tomas and going towards Mendiola bridge.  Police officers blocked them along Morayta Street and prevented them from proceeding further.  They were then forcibly dispersed, causing injuries on one of them. Three other rallyists were arrested.

All petitioners assail Batas Pambansa No. 880, some of them in toto and others only Sections 4, 5, 6, 12, 13(a), and 14(a), as well as the policy of CPR.  They seek to stop violent dispersals of rallies under the “no permit, no rally” policy and the CPR policy recently announced.

B.P. No. 880, “The Public Assembly Act of 1985,” provides:

Batas Pambansa Blg. 880

An Act Ensuring The Free Exercise By The People Of Their Right Peaceably To Assemble And Petition The Government [And] For Other Purposes.

Be it enacted by the Batasang Pambansa in session assembled:

Section 1. Title . – This Act shall be known as “The Public Assembly Act of 1985.”

Sec. 2.  Declaration of policy. – The constitutional right of the people peaceably to assemble and petition the government for redress of grievances is essential and vital to the strength and stability of the State.  To this end, the State shall ensure the free exercise of such right without prejudice to the rights of others to life, liberty and equal protection of the law.

Sec. 3.  Definition of terms. – For purposes of this Act:

(b)      “Public place” shall include any highway, boulevard, avenue, road, street, bridge or other thoroughfare, park, plaza square, and/or any open space of public ownership where the people are allowed access.

(c)      “Maximum tolerance” means the highest degree of restraint that the military, police and other peace keeping authorities shall observe during a public assembly or in the dispersal of the same.

Sec. 4.  Permit when required and when not required.–  A written permit shall be required for any person or persons to organize and hold a public assembly in a public place.  However, no permit shall be required if the public assembly shall be done or made in a freedom park duly established by law or ordinance or in private property, in which case only the consent of the owner or the one entitled to its legal possession is required, or in the campus of a government-owned and operated educational institution which shall be subject to the rules and regulations of said educational institution. Political meetings or rallies held during any election campaign period as provided for by law are not covered by this Act.

Sec. 5.  Application requirements.–  All applications for a permit shall comply with the following guidelines:

1.            The applications shall be in writing and shall include the names of the leaders or organizers; the purpose of such public assembly; the date, time and duration thereof, and place or streets to be used for the intended activity; and the probable number of persons participating, the transport and the public address systems to be used.

2.            The application shall incorporate the duty and responsibility of applicant under Section 8 hereof.

3.            The application shall be filed with the office of the mayor of the city or municipality in whose jurisdiction the intended activity is to be held, at least five (5) working days before the scheduled public assembly.

4.            Upon receipt of the application, which must be duly acknowledged in writing, the office of the city or municipal mayor shall cause the same to immediately be posted at a conspicuous place in the city or municipal building.

Sec. 6.  Action to be taken on the application. –

1.            It shall be the duty of the mayor or any official acting in his behalf to issue or grant a permit unless there is clear and convincing evidence that the public assembly will create a clear and present danger to public order, public safety, public convenience, public morals or public health.

2.            The mayor or any official acting in his behalf shall act on the application within two (2) working days from the date the application was filed, failing which, the permit shall be deemed granted.  Should for any reason the mayor or any official acting in his behalf refuse to accept the application for a permit, said application shall be posted by the applicant on the premises of  the office of the mayor and shall be deemed to have been filed.

3.            If the mayor is of the view that there is imminent and grave danger of a substantive evil warranting the denial or modification of the permit, he shall immediately inform the applicant who must be heard on the matter.

4.            The action on the permit shall be in writing and served on the applica[nt] within twenty-four hours.

5.            If the mayor or any official acting in his behalf denies the application or modifies the terms thereof in his permit, the applicant may contest the decision in an appropriate court of law.

6.            In case suit is brought before the Metropolitan Trial Court, the Municipal Trial Court, the Municipal Circuit Trial Court, the Regional Trial Court, or the Intermediate Appellate court, its decisions may be appealed to the appropriate court within forty-eight (48) hours after receipt of the same.  No appeal bond and record on appeal shall be required.  A decision granting such permit or modifying if in terms satisfactory to the applicant shall be immediately executory.

7.            All cases filed in court under this section shall be decided within twenty-four (24) hours from date of filing.  Cases filed hereunder shall be immediately endorsed to the executive judge for disposition or, in his absence, to the next in rank.

8.            In all cases, any decision may be appealed to the Supreme Court.

CPR, on the other hand, is a policy set forth in a press release by Malacañang dated September 21, 2005, shown in Annex “A” to the Petition in G.R. No. 169848, thus:

Malacañang                       Official

Manila, Philippines               NEWS

Release No. 2                                       September 21, 2005

STATEMENT OF EXECUTIVE SECRETARY EDUARDO ERMITA

On Unlawful Mass Actions

In view of intelligence reports pointing to credible plans of anti-government groups to inflame the political situation, sow disorder and incite people against the duty constituted authorities, we have instructed the PNP as well as the local government units to strictly enforce a “no permit, no rally” policy, disperse groups that run afoul of this standard and arrest all persons violating the laws of the land as well as ordinances on the proper conduct of mass actions and demonstrations.

The rule of calibrated preemptive response is now in force, in lieu of maximum tolerance.  The authorities will not stand aside while those with ill intent are herding a witting or unwitting mass of people and inciting them into actions that are inimical to public order, and the peace of mind of the national community.

Unlawful mass actions will be dispersed.  The majority of law-abiding citizens have the right to be protected by a vigilant and proactive government.

We appeal to the detractors of the government to engage in lawful and peaceful conduct befitting of a democratic society.

The President’s call for unity and reconciliation stands, based on the rule of law.

Petitioners Bayan, et al., contend that Batas Pambansa No. 880 is clearly a violation of the Constitution and the International Covenant on Civil and Political Rights and other human rights treaties of which the Philippines is a signatory.

They argue that B.P. No. 880 requires a permit before one can stage a public assembly regardless of the presence or absence of a clear and present danger.  It also curtails the choice of venue and is thus repugnant to the freedom of expression clause as the time and place of a public assembly form part of the message for which the expression is sought.  Furthermore, it is not content-neutral as it does not apply to mass actions in support of the government.  The words “lawful cause,” “opinion,” “protesting or influencing” suggest the exposition of some cause not espoused by the government.  Also, the phrase “maximum tolerance” shows that the law applies to assemblies against the government because they are being tolerated.  As a content-based legislation, it cannot pass the strict scrutiny test.

            Furthermore, the law delegates powers to the Mayor without providing clear standards.  The two standards stated in the laws (clear and present danger and imminent and grave danger) are inconsistent.

Regarding the CPR policy, it is void for being an ultra vires act that alters the standard of maximum tolerance set forth in B.P. No. 880, aside from being void for being vague and for lack of publication.

Finally, petitioners KMU, et al., argue that the Constitution sets no limits on the right to assembly and therefore B.P. No. 880 cannot put the prior requirement of securing a permit.  And even assuming that the legislature can set limits to this right, the limits provided are unreasonable:  First, allowing the Mayor to deny the permit on clear and convincing evidence of a clear and present danger is too comprehensive.  Second, the five-day requirement to apply for a permit is too long as certain events require instant public assembly, otherwise interest on the issue would possibly wane.

As to the CPR policy, they argue that it is preemptive, that the government takes action even before the rallyists can perform their act, and that no law, ordinance or executive order supports the policy.  Furthermore, it contravenes the maximum tolerance policy of B.P. No. 880 and violates the Constitution as it causes a chilling effect on the exercise by the people of the right to peaceably assemble.

I s s u e s:

1.            On the constitutionality of Batas Pambansa No. 880, specifically Sections 4, 5, 6, 12 13(a) and 14(a) thereof, and Republic Act No. 7160:

1.            Are these content-neutral or content-based regulations?

2.            Are they void on grounds of overbreadth or vagueness?

3.            Do they constitute prior restraint?

4.            Are they undue delegations of powers to Mayors?

5.            Do they violate international human rights treaties and the Universal Declaration of Human Rights?

2.            On the constitutionality and legality of the policy of Calibrated Preemptive Response (CPR):

1.            Is the policy void on its face or due to vagueness?

2.            Is it void for lack of publication?

3.            Is the policy of CPR void as applied to the rallies of September 26 and October 4, 5 and 6, 2005?

H e l d:

Petitioners’ standing cannot be seriously challenged.  Their right as citizens to engage in peaceful assembly and exercise the right of petition, as guaranteed by the Constitution, is directly affected by B.P. No. 880 which requires a permit for all who would publicly assemble in the nation’s streets and parks.  They have, in fact, purposely engaged in public assemblies without the required permits to press their claim that no such permit can be validly required without violating the Constitutional guarantee.  Respondents, on the other hand, have challenged such action as contrary to law and dispersed the public assemblies held without the permit.

Section 4 of Article III of the Constitution provides:

Sec. 4.  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 first point to mark is that the right to peaceably assemble and petition for redress of grievances is, together with freedom of speech, of expression, and of the press, a right that enjoys primacy in the realm of constitutional protection.  For these rights constitute the very basis of a functional democratic polity, without which all the other rights would be meaningless and unprotected.  As stated in Jacinto v. CA, the Court, as early as the onset of this century, in U.S. v. Apurado  already upheld the right to assembly and petition, as follows:

There is no question as to the petitioners’ rights to peaceful assembly to petition the government for a redress of grievances and, for that matter, to organize or form associations for purposes not contrary to law, as well as to engage in peaceful concerted activities.  These rights are guaranteed by no less than the Constitution, particularly Sections 4 and 8 of the Bill of Rights, Section 2(5) of Article IX, and Section 3 of Article XIII. Jurisprudence abounds with hallowed pronouncements defending and promoting the people’s exercise of these rights.  As early as the onset of this century, this Court in U.S. vs. Apurado, already upheld the right to assembly and petition and even went as far as to acknowledge:

“It is rather to be expected that more or less disorder will mark the public assembly of the people to protest against grievances whether real or imaginary, because on such occasions feeling is always wrought to a high pitch of excitement, and the greater, the grievance and the more intense the feeling, the less perfect, as a rule will be the disciplinary control of the leaders over their irresponsible followers.  But if the prosecution be permitted to seize upon every instance of such disorderly conduct by individual members of a crowd as an excuse to characterize the assembly as a seditious and tumultuous rising against the authorities, then the right to assemble and to petition for redress of grievances would expose all those who took part therein to the severest and most unmerited punishment, if the purposes which they sought to attain did not happen to be pleasing to the prosecuting authorities.  If instances of disorderly conduct occur on such occasions, the guilty individuals should be sought out and punished therefore, but the utmost discretion must be exercised in drawing the line between disorderly and seditious conduct and between an essentially peaceable assembly and a tumultuous uprising.”

Again, in Primicias v. Fugoso, the Court likewise sustained the primacy of freedom of speech and to assembly and petition over comfort and convenience in the use of streets and parks.

Next, however, it must be remembered that the right, while sacrosanct, is not absolute.  InPrimicias, this Court said:

The right to freedom of speech, and to peacefully assemble and petition the government for redress of grievances, are fundamental personal rights of the people recognized and guaranteed by the constitutions of democratic countries.  But it is a settled principle growing out of the nature of well-ordered civil societies that the exercise of those rights is not absolute for it may be so regulated that it shall not be injurious to the equal enjoyment of others having equal rights, nor injurious to the rights of the community or society.  The power to regulate the exercise of such and other constitutional rights is termed the sovereign “police power,” which is the power to prescribe regulations, to promote the health, morals, peace, education, good order or safety, and general welfare of the people.  This sovereign police power is exercised by the government through its legislative branch by the enactment of laws regulating those and other constitutional and civil rights, and it may be delegated to political subdivisions, such as towns, municipalities and cities by authorizing their legislative bodies called municipal and city councils enact ordinances for purpose

Reyes v. Bagatsing further expounded on the right and its limits, as follows:    

It is thus clear that the Court is called upon to protect the exercise of the cognate rights to free speech and peaceful assembly, arising from the denial of a permit.  The Constitution is quite explicit:  “No law shall be passed abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and petition the Government for redress of grievances.”  Free speech, like free press, may be identified with the liberty to discuss publicly and truthfully any matter of public concern without censorship or punishment.  There is to be then no previous restraint on the communication of views or subsequent liability whether in libel suits, prosecution for sedition, or action for damages, or contempt proceedings unless there be a “clear and present danger of a substantive evil that [the State] has a right to prevent.”  Freedom of assembly connotes the right of the people to meet peaceably for consultation and discussion of matters of public concern.  It is entitled to be accorded the utmost deference and respect.  It is not to be limited, much less denied, except on a showing, as is the case with freedom of expression, of a clear and present danger of a substantive evil that the state has a right to prevent.  Even prior to the 1935 Constitution, Justice Malcolm had occasion to stress that it is a necessary consequence of our republican institutions and complements the right of free speech.  To paraphrase the opinion of Justice Rutledge, speaking for the majority of the American Supreme Court in Thomas v. Collins, it was not by accident or coincidence that the rights to freedom of speech and of the press were coupled in a single guarantee with the right of the people peaceably to assemble and to petition the government for redress of grievances.  All these rights, while not identical, are inseparable.  In every case, therefore, where there is a limitation placed on the exercise of this right, the judiciary is called upon to examine the effects of the challenged governmental actuation.  The sole justification for a limitation on the exercise of this right, so fundamental to the maintenance of democratic institutions, is the danger, of a character both grave and imminent, of a serious evil to public safety, public morals, public health, or any other legitimate public interest.

3. Nowhere is the rationale that underlies the freedom of expression and peaceable assembly better expressed than in this excerpt from an opinion of Justice Frankfurter:  “It must never be forgotten, however, that the Bill of Rights was the child of the Enlightenment.  Back of the guaranty of free speech lay faith in the power of an appeal to reason by all the peaceful means for gaining access to the mind.  It was in order to avert force and explosions due to restrictions upon rational modes of communication that the guaranty of free speech was given a generous scope.  But utterance in a context of violence can lose its significance as an appeal to reason and become part of an instrument of force.  Such utterance was not meant to be sheltered by the Constitution.”  What was rightfully stressed is the abandonment of reason, the utterance, whether verbal or printed, being in a context of violence.  It must always be remembered that this right likewise provides for a safety valve, allowing parties the opportunity to give vent to their views, even if contrary to the prevailing climate of opinion.  For if the peaceful means of communication cannot be availed of, resort to non-peaceful means may be the only alternative.  Nor is this the sole reason for the expression of dissent.  It means more than just the right to be heard of the person who feels aggrieved or who is dissatisfied with things as they are.  Its value may lie in the fact that there may be something worth hearing from the dissenter.  That is to ensure a true ferment of ideas.  There are, of course, well-defined limits.  What is guaranteed is peaceable assembly.  One may not advocate disorder in the name of protest, much less preach rebellion under the cloak of dissent.  The Constitution frowns on disorder or tumult attending a rally or assembly.  Resort to force is ruled out and outbreaks of violence to be avoided.  The utmost calm though is not required.  As pointed out in an early Philippine case, penned in 1907 to be precise, United States v. Apurado:  “It is rather to be expected that more or less disorder will mark the public assembly of the people to protest against grievances whether real or imaginary, because on such occasions feeling is always wrought to a high pitch of excitement, and the greater the grievance and the more intense the feeling, the less perfect, as a rule, will be the disciplinary control of the leaders over their irresponsible followers.”  It bears repeating that for the constitutional right to be invoked, riotous conduct, injury to property, and acts of vandalism must be avoided.  To give free rein to one’s destructive urges is to call for condemnation.  It is to make a mockery of the high estate occupied by intellectual liberty in our scheme of values.

There can be no legal objection, absent the existence of a clear and present danger of a substantive evil, on the choice of Luneta as the place where the peace rally would start.  The Philippines is committed to the view expressed in the plurality opinion, of 1939 vintage of, Justice Roberts in Hague v. CIO:  “Whenever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.  Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights and liberties of citizens.  The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but must not, in the guise of respondents, be abridged or denied.”  The above excerpt was quoted with approval in Primicias v. Fugoso.  Primicias made explicit what was implicit in Municipality of Cavite v. Rojas, a 1915 decision, where this Court categorically affirmed that plazas or parks and streets are outside the commerce of man and thus nullified a contract that leased Plaza Soledad of plaintiff-municipality.  Reference was made to such plaza “being a promenade for public use,” which certainly is not the only purpose that it could serve.  To repeat, there can be no valid reason why a permit should not be granted for the proposed march and rally starting from a public park that is the Luneta.

4.       Neither can there be any valid objection to the use of the streets to the gates of the US embassy, hardly two blocks away at the Roxas Boulevard.  Primicias v. Fugoso has resolved any lurking doubt on the matter.  In holding that the then Mayor Fugoso of the City of Manila should grant a permit for a public meeting at Plaza Miranda in Quiapo, this Court categorically declared:  “Our conclusion finds support in the decision in the case of Willis Cox v. State of New Hampshire, 312 U.S., 569.  In that case, the statute of New Hampshire P.L. chap. 145, section 2, providing that no parade or procession upon any ground abutting thereon, shall be permitted unless a special license therefor shall first be obtained from the selectmen of the town or from licensing committee,’ was construed by the Supreme Court of New Hampshire as not conferring upon the licensing board unfettered discretion to refuse to grant the license, and held valid.  And the Supreme Court of the United States, in its decision (1941) penned by Chief Justice Hughes affirming the judgment of the State Supreme Court, held that ‘a statute requiring persons using the public streets for a parade or procession to procure a special license therefor from the local authorities is not an unconstitutional abridgment of the rights of assembly or of freedom of speech and press, where, as the statute is construed by the state courts, the licensing authorities are strictly limited, in the issuance of licenses, to a consideration of the time, place, and manner of the parade or procession, with a view to conserving the public convenience and of affording an opportunity to provide proper policing, and are not invested with arbitrary discretion to issue or refuse license, * * *.  “Nor should the point made by Chief Justice Hughes in a subsequent portion of the opinion be ignored: “Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestricted abuses.  The authority of a municipality to impose regulations in order to assure the safety and convenience of the people in the use of public highways has never been regarded as inconsistent with civil liberties but rather as one of the means of safeguarding the good order upon which they ultimately depend.  The control of travel on the streets of cities is the most familiar illustration of this recognition of social need.  Where a restriction of the use of highways in that relation is designed to promote the public convenience in the interest of all, it cannot be disregarded by the attempted exercise of some civil right which in other circumstances would be entitled to protection.”

x x x

          6.       x x x The principle under American doctrines was given utterance by Chief Justice Hughes in these words:  “The question, if the rights of free speech and peaceable assembly are to be preserved, is not as to the auspices under which the meeting is held but as to its purpose; not as to the relations of the speakers, but whether their utterances transcend the bounds of the freedom of speech which the Constitution protects.”  There could be danger to public peace and safety if such a gathering were marked by turbulence.  That would deprive it of its peaceful character.  It is true that the licensing official, here respondent Mayor, is not devoid of discretion in determining whether or not a permit would be granted.  It is not, however, unfettered discretion.  While prudence requires that there be a realistic appraisal not of what may possibly occur but of what may probably occur, given all the relevant circumstances, still the assumption – especially so where the assembly is scheduled for a specific public place – is that the permit must be for the assembly being held there.  The exercise of such a right, in the language of Justice Roberts, speaking for the American Supreme Court, is not to be “abridged on the plea that it may be exercised in some other place.”

x x x

          8.       By way of a summary.  The applicants for a permit to hold an assembly should inform the licensing authority of the date, the public place where and the time when it will take place.  If it were a private place, only the consent of the owner or the one entitled to its legal possession is required.  Such application should be filed well ahead in time to enable the public official concerned to appraise whether there may be valid objections to the grant of the permit or to its grant but at another public place.  It is an indispensable condition to such refusal or modification that the clear and present danger test be the standard for the decision reached.  If he is of the view that there is such an imminent and grave danger of a substantive evil, the applicants must be heard on the matter.  Thereafter, his decision, whether favorable or adverse, must be transmitted to them at the earliest opportunity.  Thus if so minded, they can have recourse to the proper judicial authority.  Free speech and peaceable assembly, along with the other intellectual freedoms, are highly ranked in our scheme of constitutional values.  It cannot be too strongly stressed that on the judiciary, — even more so than on the other departments – rests the grave and delicate responsibility of assuring respect for and deference to such preferred rights.  No verbal formula, no sanctifying phrase can, of course, dispense with what has been so felicitiously termed by Justice Holmes “as the sovereign prerogative of judgment.”  Nonetheless, the presumption must be to incline the weight of the scales of justice on the side of such rights, enjoying as they do precedence and primacy. x x x.

B.P. No. 880 was enacted after this Court rendered its decision in Reyes.

The provisions of B.P. No. 880 practically codify the ruling in Reyes:

Reyes v. Bagatsing

(G.R. No. L-65366, November 9, 1983, 125 SCRA 553, 569)

8. By way of a summary.  The applicants for a permit to hold an assembly should inform the licensing authority of the date, the public place where and the time when it will take place.  If it were a private place, only the consent of the owner or the one entitled to its legal possession is required.  Such application should be filed well ahead in time to enable the public official concerned to appraise whether there may be valid objections to the grant of the permit or to its grant but at another public place.  It is an indispensable condition to such refusal or modification that the clear and present danger test be the standard for the decision reached.  If he is of the view that there is such an imminent and grave danger of a substantive evil, the applicants must be heard on the matter.  Thereafter, his decision, whether favorable or adverse, must be transmitted to them at the earliest opportunity.  Thus if so minded, they can have recourse to the proper judicial authority.

B.P. No. 880

 Sec. 4.  Permit when required and when not required.–  A written permit shall be required for any person or persons to organize and hold a public assembly in a public place.  However, no permit shall be required if the public assembly shall be done or made in a freedom park duly established by law or ordinance or in private property, in which case only the consent of the owner or the one entitled to its legal possession is required, or in the campus of a government-owned and operated educational institution which shall be subject to the rules and regulations of said educational institution. Political meetings or rallies held during any election campaign period as provided for by law are not covered by this Act.

Sec. 5.  Application requirements.–  All applications for a permit shall comply with the following guidelines:

(a) The applications shall be in writing and shall include the names of the leaders or organizers; the purpose of such public assembly; the date, time and duration thereof, and place or streets to be used for the intended activity; and the probable number of persons participating, the transport and the public address systems to be used.

(b) The application shall incorporate the duty and responsibility of applicant under Section 8 hereof.

(c) The application shall be filed with the office of the mayor of the city or municipality in whose jurisdiction the intended activity is to be held, at least five (5) working days before the scheduled public assembly.

(d) Upon receipt of the application, which must be duly acknowledged in writing, the office of the city or municipal mayor shall cause the same to immediately be posted at a conspicuous place in the city or municipal building.

Sec. 6.  Action to be taken on the application. –

(a) It shall be the duty of the mayor or any official acting in his behalf to issue or grant a permit unless there is clear and convincing evidence that the public assembly will create a clear and present danger to public order, public safety, public convenience, public morals or public health.

(b) The mayor or any official acting in his behalf shall act on the application within two (2) working days from the date the application was filed, failing which, the permit shall be deemed granted.  Should for any reason the mayor or any official acting in his behalf refuse to accept the application for a permit, said application shall be posted by the applicant on the premises of  the office of the mayor and shall be deemed to have been filed.

(c) If the mayor is of the view that there is imminent and grave danger of a substantive evil warranting the denial or modification of the permit, he shall immediately inform the applicant who must be heard on the matter.

(d) The action on the permit shall be in writing and served on the applica[nt] within twenty-four hours.

(e) If the mayor or any official acting in his behalf denies the application or modifies the terms thereof in his permit, the applicant may contest the decision in an appropriate court of law.

(f) In case suit is brought before the Metropolitan Trial Court, the Municipal Trial Court, the Municipal Circuit Trial Court, the Regional Trial Court, or the Intermediate Appellate Court, its decisions may be appealed to the appropriate court within forty-eight (48) hours after receipt of the same.  No appeal bond and record on appeal shall be required.  A decision granting such permit or modifying it in terms satisfactory to the applicant shall be immediately executory.

(g) All cases filed in court under this section shall be decided within twenty-four (24) hours from date of filing.  Cases filed hereunder shall be immediately endorsed to the executive judge for disposition or, in his absence, to the next in rank.

(h) In all cases, any decision may be appealed to the Supreme Court.

(i) Telegraphic appeals to be followed by formal appeals are hereby allowed.

It is very clear, therefore, that B.P. No. 880 is not an absolute ban of public assemblies but a restriction that simply regulates the time, place and manner of the assemblies.  This was adverted to in Osmeña v. Comelec,[1] where the Court referred to it as a “content-neutral” regulation of the time, place, and manner of holding public assemblies.[2]

A fair and impartial reading of B.P. No. 880 thus readily shows that it refers to all kinds of public assemblies[3] that would use public places.  The reference to “lawful cause” does not make it content-based because assemblies really have to be for lawful causes, otherwise they would not be “peaceable” and entitled to protection.  Neither are the words “opinion,” “protesting” and “influencing” in the definition of public assembly content based, since they can refer to any subject.  The words “petitioning the government for redress of grievances” come from the wording of the Constitution, so its use cannot be avoided.  Finally, maximum tolerance is for the protection and benefit of all rallyists and is independent of the content of the expressions in the rally.

Furthermore, the permit can only be denied on the ground of clear and present danger to public order, public safety, public convenience, public morals or public health.  This is a recognized exception to the exercise of the right even under the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.

Neither is the law overbroad.  It regulates the exercise of the right to peaceful assembly and petition only to the extent needed to avoid a clear and present danger of the substantive evils Congress has the right to prevent.

There is, likewise, no prior restraint, since the content of the speech is not relevant to the regulation.

As to the delegation of powers to the mayor, the law provides a precise and sufficient standard – the clear and present danger test stated in Sec. 6(a).  The reference to “imminent and grave danger of a substantive evil” in Sec. 6(c) substantially means the same thing and is not an inconsistent standard.  As to whether respondent Mayor has the same power independently under Republic Act No. 7160[4] is thus not necessary to resolve in these proceedings, and was not pursued by the parties in their arguments.

Finally, for those who cannot wait, Section 15 of the law provides for an alternative forum through the creation of freedom parks where no prior permit is needed for peaceful assembly and petition at any time:

Sec. 15.  Freedom parks. – Every city and municipality in the country shall within six months after the effectivity of this Act establish or designate at least one suitable “freedom park” or mall in their respective jurisdictions which, as far as practicable, shall be centrally located within the poblacion where demonstrations and meetings may be held at any time without the need of any prior permit.

In the cities and municipalities of Metropolitan Manila, the respective mayors shall establish the freedom parks within the period of six months from the effectivity this Act.

2

The Court now comes to the matter of the CPR.  As stated earlier, the Solicitor General has conceded that the use of the term should now be discontinued, since it does not mean anything other than the maximum tolerance policy set forth in B.P. No. 880.  This is stated in the Affidavit of respondent Executive Secretary Eduardo Ermita, submitted by the Solicitor General, thus:

The truth of the matter is the policy of “calibrated preemptive response” is in consonance with the legal definition of “maximum tolerance” under Section 3 (c) of B.P. Blg. 880, which is the “highest degree of restraint that the military, police and other peacekeeping authorities shall observe during a public assembly or in the dispersal of the same.”  Unfortunately, however, the phrase “maximum tolerance” has acquired a different meaning over the years.  Many have taken it to mean inaction on the part of law enforcers even in the face of mayhem and serious threats to public order.  More so, other felt that they need not bother secure a permit when holding rallies thinking this would be “tolerated.”  Clearly, the popular connotation of “maximum tolerance” has departed from its real essence under B.P. Blg. 880.

It should be emphasized that the policy of maximum tolerance is provided under the same law which requires all pubic assemblies to have a permit, which allows the dispersal of rallies without a permit, and which recognizes certain instances when water cannons may be used.  This could only mean that “maximum tolerance” is not in conflict with a “no permit, no rally policy” or with the dispersal and use of water cannons under certain circumstances for indeed, the maximum amount of tolerance required is dependent on how peaceful or unruly a mass action is.  Our law enforcers should calibrate their response based on the circumstances on the ground with the view to preempting the outbreak of violence.

Thus, when I stated that calibrated preemptive response is being enforced in lieu of maximum tolerance I clearly was not referring to its legal definition but to the distorted and much abused definition that it has now acquired.  I only wanted to disabuse the minds of the public from the notion that law enforcers would shirk their responsibility of keeping the peace even when confronted with dangerously threatening behavior.  I wanted to send a message that we would no longer be lax in enforcing the law but would henceforth follow it to the letter.  Thus I said, “we have instructed the PNP as well as the local government units to strictly enforce a no permit, no rally policy . . . arrest all persons violating the laws of the land . . . unlawful mass actions will be dispersed.”  None of these is at loggerheads with the letter and spirit of Batas Pambansa Blg. 880.  It is thus absurd for complainants to even claim that I ordered my co-respondents to violate any law.

In sum, this Court reiterates its basic policy of upholding the fundamental rights of our people, especially freedom of expression and freedom of assembly.   For this reason, the so-called calibrated preemptive response policy has no place in our legal firmament and must be struck down as a darkness that shrouds freedom.  It merely confuses our people and is used by some police agents to justify abuses.  On the other hand, B.P. No. 880 cannot be condemned as unconstitutional; it does not curtail or unduly restrict freedoms; it merely regulates the use of public places as to the time, place and manner of assemblies.  Far from being insidious, “maximum tolerance” is for the benefit of rallyists, not the government.  The delegation to the mayors of the power to issue rally “permits” is valid because it is subject to the constitutionally-sound “clear and present danger” standard.

WHEREFORE, the petitions are GRANTED in part,  and Calibrated Preemptive Response (CPR), insofar as it would purport to differ from or be in lieu of maximum tolerance, isNULL and VOID and respondents are ENJOINED to REFRAIN from using it and to STRICTLY OBSERVE the requirements of maximum tolerance.

 Read:

1. Right of assembly..31 SCRA 734 and 742

2. Evangelista vs. Earnshaw, 57 Phil 255

3. Primicias vs. Fuguso, 80 Phil. 71

4. De la Cruz vs. Ela, 99 Phil. 346

5. Navarro vs. Villegas, 31 SCRA 731

6. Philippine Blooming Mills Case,51 SCRA 189

7. Reyes vs. Bagatsing, 125 SCRA 553;see         guidelines

8. Ruiz vs. Gordon, 126 SCRA 233

9. Villar vs. TIP, 135 SCRA 705

10. Malabanan vs. Ramento, 129 SCRA 359

11. Carpio vs. Guevara, 106 SCRA 685

12. Nestle’ Phils. vs. Sanchez, 154 SCRA 542

13. Arreza vs. Araneta University Foundation, 137          SCRA 94

6. Freedom from prior restraint

  Read:

1. Gonzales vs. Kalaw Katigbak, 137 SCRA 717

2. New York Times vs. U.S., 403 U.S. 713 (Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its validity)

3. Near vs. Minnesota, 283 U.S. 697

4. Times Film vs. City of Chicago, 365 U.S. 43

5. Freedman vs. Maryland, 380 U.S. 51

5.            Clear and present danger and dangerous tendency rule (whether the words used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that the State has the right to prevent)

7-a. Dangerous tendency rule (If the words uttered create a dangerous tendency which the State has the right to prevent, then such words are  punishable)

  Read:

1. Cabansag vs. Fernandez, 102 Phil. 152

2. Read again the Reyes and Ruiz cases, supra

3. Read again Zaldivar vs. Sandiganbayan, GR No.          7960-707& Zaldivar vs. Gonzales, GR No.          80578, February 1, 1989

8. The balancing-of-interest test (When a particular conduct is regulated in the interest of the public order, and the regulation results in an indirect, conditional, partial abridgment of speech, the duty of the courts is to determine which of the 2 conflicting interests demand greater protection under the circumstances presented.)

Read:

AYER PRODUCTION VS. JUDGE CAPULONG, JUAN PONCE ENRILE, ET AL., 160 SCRA 861

Read also:

1. Lagunzad vs. Gonzales, 92 SCRA 476

2. Gitlow vs. New York, 268 U.S. 652, including           the criticism on this test by Justice Holmes

3. See also Zaldivar case above

[1]         G.R. No. 132231, March 31, 1998, 288 SCRA 447.

[2]         Ibid, p. 478.

[3]         Except picketing and other concerted action in strike areas by workers and employees resulting from a labor dispute, which are governed by the Labor Code and other labor laws; political meeting or rallies held during any election campaign period, which are governed by the Election Code and other election related laws; and public assemblies in the campus of a government-owned and operated educational institution, which shall be subject to the rules and regulations of said educational institution. (Sec. 3[a] and Sec. 4 of B.P. No. 880).

[4]         The Local Government Code.  Specifically, Section 16 stating the general welfare clause, thus:

Sec. 16.  General Welfare. – Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare.  Within their respective territorial jurisdictions, local government units shall ensure and support among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific and technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants.

 

CONSTITUTIONAL LAW

CHAPTER VII – THE NON-ESTABLISHMENT OF RELIGION CLAUSE

Section 5.  No law shall be made respecting the 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.

ESTRADA VS. SOLEDAD ESCRITOR, 492 SCRA 1 (Resolution of the Motion for Reconsideration), 408 SCRA 1

Puno, J.

Respondent is the Court interpreter of RTC Branch 253, Las Pinas City. Complainant requested for an investigation  of respondent for living with a man not her husband while she was still legally married and having borne a child within this live-in arrangement. Estrada believes  that Escritor is committing a grossly immoral act which tarnishes the image of the judiciary, thus she should not be allowed to remain employed  therein as it might appear that the court condones her act.

Respondent admitted she started living with Luciano Quilapio, Jr. more than 20 years ago when her husband was still alive but living with another woman. She likewise admitted having a son with Quilapio but denies any liability for alleged grossly immoral conduct because:

  • She is a member of the Jehovah’s Witnesses and the Watch Tower Society;
  • That the conjugal arrangement was in  conformity  with their religious beliefs;
  • That the conjugal arrangement with Quilapio has the approval of her congregation.

Escritor likewise claimed that she had executed a “DECLARATION OF PLEDGING FAITHFULNESS” in accordance with her religion which allows members of the Jehovah’s witnesses who have been abandoned by their spouses to enter into marital relations. The Declaration thus makes the resulting union moral and binding within the congregation all over the world except in countries where divorce is allowed.

HELD:

Escritor’s conjugal arrangement cannot be penalized as she has made out a case for exemption from the law based on her fundamental right to religion. The Court recognizes that state interests must be upheld in order that freedoms—including religious freedom—may be enjoyed. IN THE AREA OF RELIGIOUS EXERCISE AS A PREFERRED FREEDOM, HOWEVER, MAN STANDS ACCOUNTABLE TO AN AUTHORITY HIGHER THAN THE STATE, and so the stateinterest sought to be upheld must be so compelling that its violation will erode the very fabric of the state that will also protect the freedom. In the absence of a showing that the state interest exists, man must be allowed to subscribe to the Infinite.

Escritor was therefore held not administratively liable for grossly immoral conduct.

 FREEDOM OF RELIGION

-                      Any specific system of belief, worship or conduct, often involving a code of ethics and philosophy.

-                      A profession of faith to an active power that binds and elevates man to his Creator.

The existence of a Divine being is not necessarily inherent in religion; the Buddhists espouses a way of life without reference to an omnipotent God.

“Strong fences make good neighbors”. The idea is to delineate the boundaries between two institutions and prevent encroachments by one against the other.

The doctrine cuts both ways. It is not only the State that is prohibited from interfering in purely ecclesiastical affairs; the Church is likewise barred from meddling  in purely secular matters.

 

NON-STABLISHMENT CLAUSE:

It simply means “that the State cannot set up a church; nor pass laws which aids one religion; aid all religion, or prefer one religion over another nor force nor influence a person to go to or remain away from church against his will; or force him to profess a belief or disbelief; that the State cannot openly or secretly participate in the affairs of any religious organization or group and vice versa” (EVERSON VS. BOARD OF EDUCATION, 330 US 1)

This clause seeks to protect:

Voluntarism—must come into existence through the voluntary support of its members;

Insulation from political process—growth through voluntary support of its members will not take place if there is intervention from the State.

There will be no violation of the non-establishment clause if:

1. the statute has a secular legislative purpose;

2. its principal or primary effect is one that neither advances nor inhibits religion; and

3. it does not foster an excessive government entanglement with religion. (LEMON VS. KURTZMAN, 403 US 602)

 

The government is neutral  and while protecting  all, it prefers none and disparages none. “All” here applies both to the believer and the non-believer. FREEDOM OF RELIGION INCLUDES FREEDOM FROM RELIGION; THE RIGHT TO WORHIP INCLUDES THE RIGHT NOT TO WORSHIP.

SCHOOL PRAYER CASE (ENGEL VS. VITALE, 370 US 421)

“It is unconstitutional for a school to require the students to recite  a prayer composed by the Board of Regents at the starts of the day’s class. “It is no part of the business of government to compose official prayers for any group of the American People.”

 

SCHOOL DISTRICT OF ABINGTON VS. SCHEMPP, 374 US 203

It is unconstitutional for a law to require  that at least 10 verses from the Holy Bible  be read daily without comment because the same constitute a religious exercise which violates the non-establishment clause.

 

BOARD OF EDUCATION VS. ALLEN, 392 US 236

A law requiring the Board of Education to lend textbooks free of charge to all students from grades 7-12 of parochial school. This is constitutional since it is not the parochial school which gets the benefits but the parents.

EVERSON  VS. BOARD OF EDUCATION, 330 US 1

The law authorizing reimbursement of transportation expenses of school children going to and from parochial schools is not violative of the non-establishment clause because it will be the parents who get benefits, not the parochial  school.

RIGHT TO RELIGIOUS PROFESSION AND WORSHIP HAS TWO ASPECTS:

a.            Freedom to believe; and

b.            Freedom to act.

IN the first, such freedom is absolute. He may indulge in his own theories about life and death; worship any god he chooses, or none at all. He may not be punished even if he cannot prove what he believes.

In the second, if the individual externalizes what he believes, his freedom to do so becomes subject to the authority of the State. This is so because religious freedom can be exercised only with due regard to the rights of others. Example: “Go forth and multiply—cannot marry several times just to comply.

PEOPLE VS. LAGMAN & ZOSA, 38 O.G. 1676

Avoiding military duties based on religious grounds is not allowed in the Philippines because of Section 4, Article II—The state is the protector of the people and it is the prime duty  of the people to defend the State and in the fulfillment of this duty, the State may call  all citizens to render military or civil service.

IN RE SUMMERS, 325 US 561

The act of the Illinois Supreme Court denying admission to the bar because of his refusal to take in good faith an oath to support the Constitution of the State of Illinois which requires mandatory service in the military in times of war was reversed by the US Supreme Court stating that this constitutes a violation of the 1st Amendment which guarantees religious freedom.

1.  Religious freedom in relation to impairment of            contracts and the right to join associations,36            SCRA 445

2. Read:

1. Aglipay vs. Ruiz, 64 Phil. 201

2. Garces vs. Estenzo, 104 SCRA 510

3. INK vs. Gironella, 106 SCRA 1

4. American Bible Society vs. City of Manila, 101         Phil. 398

5. Gerona vs. Sec. of Education, 106 Phil. 11

6. Pamil vs. Teleron, November 20, 1978

7. Victoriano vs. Elizalde Rope, 59 SCRA 54

1.            German vs. Barangan, 135 SCRA 514

ROEL EBRALINAG, ET AL VS. THE DIVISION SUPERINTENDENT OF SCHOOLS OF CEBU, March 1, 1993

Grino–Aquino, J.

 

Facts:

1. The petitioners are high school and grade schools students enrolled in the different public schools of the Province of Cebu and who belong to the religious group known as the Jehovah’s Witnesses;

2. That they rrefused to take part in the flag ceremony which includes playing by a band or singing the Philippine National Anthem, saluting the Philippine Flag and reciting the patriotic pledge because they considered the flag as an image and they should not worship it except GOD;

3. That because of their refusal to perform the foregoing acts as required by RA 1265 of July 11, 1955 and by Department Order No. 8 dated July 21, 1955 of the DECS making the flag ceremony compulsory in all educational institutions, they were expelled by the respondent school authorities.

Hence this petition.

Issue:

May the petitioners be expelled for refusing to salute the flag, recite the patriotic pledge or sing the national anthem in order to follow their religious beliefs?

Held:

The same issue was raised in Gerona vs. Secretary of Education, 106 Phil. 2 (1959) and Balbuna vs. Secretary of Education, 110 Phil. 150 (1960) where the SC held that:

The flag is not an image but a symbol of the Republic of the Philippines, an emblem of national sovereignty, of national unity and cohesion and of freedom and liberty which it and the Constitution guarantee and protect. Under a system of complete separation of church and state in the government, the flag is utterly devoid of any religious significance.

The law, RA 1265 was likewise incorporated in Executive Order No. 297, September 21, 1988.

Our task is extremely difficult for the 30-year old decision of this Court in GERONA upholding the salute law and approving the expulsion of students who refuse to obey it, is not lightly to be trifled with.

The idea that one may be compelled to salute the flag, sing the national anthem, and recite the patriotic pledge, during flag ceremony on pain of being dismissed from one’s job or be expelled in school, IS ALIEN TO THE CONSCIENCE OF THE PRESENT GENERATION OF FILIPINOS WHO CUT THEIR TEETH ON THE BILL OF RIGHTS WHICH GUARANTEES THEIR RIGHTS TO FREE SPEECH AND THE FREE EXERCISE OF RELIGIOUS PROFESSION AND WORSHIP (Section 5, Art. III, 1987 Constitution).

Religious freedom is a fundamental right which is entitled to the highest priority and the amplest protection among human rights, for it involves the relationship of man and his Creator (Chief Justice Fernando’s separate opinion in German vs. Barangan, 135 SCRA 530).

The right to religious profession has a two-fold aspect, vis., freedom to believe and freedom to act on one’s belief. The first is absolute as long as the belief is confined within the realm of the thought. The second is subject to regulation where the belief is translated into external acts that affect the public welfare.

The sole justification for a prior restraint or limitation on the exercise of religious freedom (according the Former Chief justice Teehankee in his dissenting opinion in German vs. Baranagan) is the existence of a grave and present danger of a character both grave and imminent, of a serious evil to public safety, public morals, public health or any other legitimate public interest, that the State has the right and duty to presvent. Absent such a threat to public safety, the expulsion of the petitioners from the schools is not justified since they are not doing anything that could warrant their expulsion since during flag ceremonies, they just quietly stand at attention to show their respect for the rights of others who choose to participate in the solemn proceedings.

In Victoriano vs. Elizalde Rope Workers Union, 59 SCRA 54, we upheld the exemption of the members of the Iglesia ni Kristo from the coverage of the closed-shop agreement between the labor union and the company because it would violate the teaching of their church not to join any labor group.

We hold that a similar exemption may be accorded to the Jehovah’s Witnesses with regard to the observance of the flag ceremony out of respect to their religious beliefs, however “bizarre” those beliefs may seem to others.

 

CONSTITUTIONAL LAW

CHAPTER VIII – THE CONSTITUTIONAL RIGHT TO TRAVEL

 

Section 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law.

NOTE: THE APPLICABLE PROVISION OF THE HUMAN SECURITY ACT ON THE RIGHT TO TRAVEL

Section 26 provides that persons who have been charged with terrorism or conspiracy to commit terrorism—even if they have been granted bail because evidence of guilt is not strong—can be:

  • Detained under house arrest;
  • Restricted from traveling; and/or
  • Prohibited from using any cellular phones, computers, or other means of communications with people outside their residence.

Upon application of the prosecutor, the suspect’s right to travel shall be limited to the municipality or city where he resides or where the case is pending, in the interest of national security and public safety. Travel outside of said municipality or city, without the authorization of the court, shall be deemed a violation of the terms and conditions of the bail which shall then be forfeited as provided in the Rules of Court.

These restrictions shall be terminated upon acquittal of the accused; or the dismissal of the case filed against him; or earlier upon the discretion of the court or upon motion of the prosecutor.

1. The constitutional as well as human right to travel,    129 SCRA

2. Read:

FERDINAND MARCOS, ET AL. VS. HON. RAUL MANGLAPUS, ET AL., G.R. NO. 88211, September 15, 1989 and the Resolution of the Motion for Reconsideration dated  October 27, 1989

Right to travel; liberty of abode and “right to return”

En banc

 

Cortes, J.

This is a petition for mandamus and prohibition asking the Supreme Court to Order the respondents to issue travel documents to the petitioners and to enjoin the implementation of the President’s decision to bar their return to the Philippines.

The case for the petitioners is founded on the assertion that their right to return to the Philippines is guaranteed by the following provisions of the Constitution:

Section 1. No person shall be deprived of life liberty or property without due process of law, nor shall any person  be denied equal protection of the laws.

Section 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except in the interest of national security, public safety or public health, as may be provided by law.

The petitioners contend that the President has no power to impair the liberty of abode of the Marcoses because only the Courts may do so “within the limits prescribed by law”. Nor may the President impair the right to travel because no law has authorized her to do so.

Also, the petitioners claim that under international law, particularly the Universal Declaration of Humjan Rights guaranteed the right of the Marcoses to return to the Philippines. Thus:

Art. 13 (1) Everyone has the right to freedom of movement and residence within the borders  of each state.

(2) Everyone has the right to leave any country, including his own, AND TO RETURN TO HIS COUNTRY.

Likewise, under the International Covenant on Civil and Political Rights, which had been ratified by the Philippines, provides:

Art. 12

4) No one shall be arbitrarily deprived of the right to enter his own country.

The respondents argue that the issue in this case involves a political question which is therefore beyond the jurisdiction of the Court. Furthermore, they argue that the right of the state to national security prevails over individual rights, citing Section 4, Art. II of the 1987 Philippine Constitution.

Issue:

Whether or not, in the exercise of the powers granted in the Constitution, the President may prohibit the Marcoses from returning to the Philippines.

The sub-issues, which could help in the determination of the main issue, are:

1. Does the President have the power to bar the Marcoses to return to the Philippines?

a. Is this a political question?

2. Assuming that the President has the power to bar former Pres. Marcos and his family from returning to the Philippines, in the interest of national security, public safety or public health, has the President made a finding that the return of the petitioners to the Philippines is a clear and present danger to national security, public welfare or public health. And if she has made that finding, have the requirements of due process been complied with in making such finding? Has there been prior notice to the petitioners?

Held:

It must be emphasized that the individual right involved in this case is not the right to travel from the Philippines to other countries or within the Philippines. These are what the right to travel connote. Essentially, the right to return to one’s country, a totally distinct right under international law, independent  from, though related to the right to travel. Thus, even the Universal declaration of Human Rights and the International Covenant on Civil and Political Rights treat the right to freedom of movement and abode within the territory of the state, the right to leave a country and the right to enter one’s country as separate and distinct rights.

THE RIGHT TO RETURN TO ONE’S COUNTRY IS NOT AMONG THE RIGHTS SPECIFICALLY GUARANTEED BY THE BILL OF RIGHTS, WHICH TREATS ONLY OF THE LIBERTY OF ABODE AND THE RIGHT TO TRAVEL, BUT IT IS OUR WELL-CONSIDERED VIEW THAT THE RIGHT TO RETURN MAY BE CONSIDERED AS A GENERALLY ACCEPTED PRINCIPLE OF INTERNATIONAL LAW, UNDER OUR CONSTITUTION, IS PART OF THE LAW OF THE LAND.

To the President, the problem is one of balancing the general welfare and the common good against the exercise of rights of certain individuals. The power involved is the  President’s RESIDUAL POWER to protect the general welfare of the people.

The court cannot close its eyes to present realities and pretend that the country is not besieged by the insurgency, separatist movement in Mindanao, rightist conspiracies to grab power, etc. With these before her, the President cannot be said to have acted arbitrarily, capriciously and whimsically.

Lastly, the issue involved in the case at bar is not political in nature since under Section 1, Art. VIII of the Constitution, judicial power now includes the duty to “determine whether or not  there has been a grave abuse of discretion amounting to lack of jurisdiction on the part of any branch or instrumentality of the government.”

NOTE:

The main opinion was concurred in by 7 justices (CJ Fernan,  Narvasa, Melencio-Herrera, Gancayco, Grino-Aquino, Medialdea and Regalado) or a total of 8 justices in voting in favor of DISMISSING the petition. Seven justices filed separate dissenting opinions (Gutierrez, Jr., Cruz, Paras, Feliciano, Padilla, Bidin and Sarmiento).

***********************

Gutierrez, Jr., J., dissenting.

With all due respect for the majority in the Court that the main issue in this case is not one of power but one on RIGHTS. If he comes home, the government has the power to arrest and punish him but does it have the power to deny him his right to come home and die among familiar surroundings? x x x The government has more than ample powers under existing laws to deal with a person who transgresses the peace and imperils public safety. BUT THE DENIAL OF TRAVEL PAPERS IS NOT ONE OF THOSE POWERS BECAUSE THE BILL OF RIGHTS SAY SO. THERE IS NO LAW PRESCRIBING EXILE IN FOREIGN LAND AS THE PENALTY FOR HURTING THE NATION.

1. The fears expressed by its representatives were based on mere conjectures of political and economic destabilization without any single piece of concrete evidence to back up their apprehensions.

Amazingly, however, the majority has come to the conclusion that there exist “factual bases for the President’s decision” to bar Marcos’s return. That is not my recollection of the impressions of the Court after the hearing.

2. Silverio vs. CA, April 8, 1991

Read also:

1. Caunca vs. Salazar, 82 Phil. 851

2. Kwong vs. PCGG, December 7,l987

3. Manotoc vs. CA, 142 SCRA 149

1.   Petitioner Ricardo Manotoc, Jr. has 6 criminal cases for estafa pending against him. In said cases he was admitted to bail with the FGU Insurance Corporation as surety.

He is also involved in a case pending before the Securities and Exchange Commission.

2.   The SEC requested the Commissioner on Immigration not to clear petitioner for departure pending disposition of the case involving him. The same was granted by the Commissioner.

3.   Petitioner subsequently filed before the trial courts a motion entitled “motion for permission to leave the country” stating as ground therefor his desire to go to the United States, “relative to his business transactions and opportunities”.

4.   The motion was denied by the lower courts and the matter was elevated to the Court of Appeals which also denied the same. Petitioner brings the matter to the S.C. claiming his constitutional right to travel and also contending that having been admitted to bail as a matter of right, neither the courts which granted him bail nor the SEC would have jurisdiction over his liberty.

HELD:

Petition denied.

a.   A court has the power to prohibit a person admitted to bail from leaving the Philippines. This is a necessary consequence of the nature and function of a bail bond. The condition imposed upon petitioner to make himself available at all times whenever the court requires his presence operates as a valid restriction on his right to travel.

b.   “x  x  x the result of the obligation assumed by appellee to hold the accused amenable at all times to the orders and processes of the lower court, was to prohibit the accused from leaving the jurisdiction of the Philippines, because, otherwise, said orders and processes will be nugatory, and inasmuch as the jurisdiction of the courts from which they issued does not extend beyond that of the Philippines they would have no binding force outside of said jurisdiction.”(People vs. Uy Tuising, 61 Phil. 404 (l935)

c.   To allow the petitioner to leave the Philippines without sufficient reason would place him beyond the reach of the courts.

d.   Petitioner cites the Court of Appeals case of People vs. Shepherd (C.A.-G.R. No. 23505-R, Feb. 13, 1980) as authority for his claim that he could travel. The S.C. held however that said case is not squarely on all fours with the case at bar. Unlike the Shepherd case, petitioner has failed to satisfy the courts of the urgency of his travel, the duration thereof, as well as the consent of his surety to the proposed travel.

e.   It may thus be inferred that the fact that a criminal case is pending against an accused does not automatically bar him from travelling abroad. He must however convince the courts of the urgency of his travel, the duration thereof, and that his sureties are willing to undertake the responsibility of allowing him to travel.

4. Villavicencio vs. Lukban, 39 Phil. 778

5. Roan vs. Gonzales, supra.

6. Salonga vs. Hermoso, 97 SCRA 121

7. Read also the Ferdinand Marcos Cases of August         & October, 1989

 

ARTICLE I – THE NATIONAL TERRITORY

The national territory of the Philippines comprises:

  1. The Philippine archipelago
  2. With all the islands and waters embraced therein
  3. And all other territories over which the Philippines has sovereignty or jurisdiction
  4. Consisting of its
    1. Terrestrial
    2. Fluvial; and                                                                      CODE:  TFA
    3. Aerial domains
  5. Including its
    1. Territorial sea
    2. Theseabed
    3. Thesubsoil                                                                       CODE: TSSIO
    4. Theinsular shelves; and
    5. Theother submarine areas
  6. The waters
    1. Around
    2. Between and
    3. Connecting
    4. Theislands of the archipelago                                          CODE:  ABCI

Regardless of their breadth and dimensions

Form part of the INTERNAL WATERS of the Philippines

Definition of Archipelago

An archipelago is a body of water studded with islands.  The Philippine archipelago is that body of water studded with islands which is delineated in the Treaty of Paris (1898), as amended by the Treaty of Washington (1900) and the Treaty of Great Britain (1930).

Definition of “all other territories over which the Philippines has sovereignty or jurisdiction”

It includes any territory that presently belongs or might in the future belong to the Philippines through any of the internationally accepted modes of acquiring territory.

Archipelagic principle

Two elements:

  1. The definition of internal waters (as provided above);
  2. Thestraight baseline methodof delineating the territorial sea – consists of drawing straight lines connecting appropriate points on the coast without departing to any appreciable extent from the general direction of the coast.

Important distances with respect to the waters around the Philippines

1.  Territorial sea                      -           12 nautical miles (n.m.)

2.  Contiguous zone                 -           12 n.m. from the edge of the territorial sea

3.  Exclusive economic zone   -          200 n.m. from the baseline [includes (1) and (2)]

 

ARTICLE II – DECLARATION OF PRINCIPLES AND STATE POLICIES

Selected principles

Sec 1.  The Philippines is a democratic and republican State.  Sovereignty resides in the people and all government authority emanates from them. 

Elements of a State (for municipal law purposes)              CODE:  PTSG

  1. A community of persons, more or less numerous (PEOPLE)
  2. Permanently occupying a definite portion of territory (TERRITORY)
  3. Independent of external control (SOVEREIGNTY)
  4. Possessing an organized government to which the great body of inhabitants render habitual obedience (GOVERNMENT)

Definition of “People”                                                           CODE:  CNCH

  1. ACommunity of persons;
  2. Sufficient inNumber;
  3. Capable of maintaining the continued existence of the community; and
  4. Held together by a common bond of law.

Definition of “Sovereignty”

  1. LEGAL sovereignty
  2. The supreme power to make law.
  3. It is lodged in the people.
  1. POLITICAL sovereignty
  2. The sum total of all the influences in a state,
  3. Legal and non-legal,
  4. Which determine the course of law.
  5. According to thePrinciple of AUTO-LIMITATION:

Sovereignty is the property of the state-force due to which it has the exclusive capacity of legal self-determination and self-restriction.

Definition of “Government”

  1. That institution or aggregate of institutions
  2. by which an independent society
  3. makes and carries out those rules of action
  4. which are necessary to enable men to live in a social state
  5. or which are imposed upon the people forming that society by those who possess the power or authority of prescribing them.

Classification of governments

1.  De jure       – one established by the authority of the legitimate sovereign

2.  De facto      – one established in defiance of the legitimate sovereign

Classification of de facto governments

  1. De factoproper
    1. That government that gets possession and control of
    2. or usurps by force or by the voice of majority
    3. the rightful legal government
    4. and maintains itself against the will of the latter.
  2. Government ofparamount force
    1. That which is established and maintained by military forces
    2. who invade and occupy a territory of the enemy
    3. in the course of war.
  3. That established as an independent governmentby the inhabitants of a country who rise ininsurrectionagainst the parent state.

Definition of “Republican State”

It is one wherein all government authority emanates from the people and is exercised by representatives chosen by the people.

Definition of Democratic State

This merely emphasizes that the Philippines has some aspects of direct democracy such as initiative and referendum.

Sec. 2.  The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.

 

Kind of war renounced by the Philippines

The Philippines only renounces AGGRESSIVE war as an instrument of national policy.  It does not renounce defensive war.

Some “generally accepted principles of international law” recognized by the Court:

  1. Right of an alien to be released on bail while awaiting deportation when his failure to leave the country is due to the fact that no country will accept him (Mejoff v. Director of Prisons, 90 Phil. 70)
  2. The right of a country to establish military commissions to try war criminals (Kuroda v. Jalondoni,83 Phil. 171)
  3. The Vienna Convention on Road Signs and Signals (Agustin v. Edu,88 SCRA 195)

Amity with all nations

This does not mean automatic diplomatic recognition of all nations.  Diplomatic recognition remains a matter of executive discretion.

Sec 3.  Civilian authority is, at all times, supreme over the military.  The Armed Forces of the Philippines is the protector of the people and the State.  Its goal is to secure the sovereignty of the State and the integrity of the national territory.

 

Civilian authority/supremacy clause (1st sentence)

  1. Civilian authority simply means the supremacy of the law because authority, under our constitutional system, can only come from law.
  2. Under this clause, the soldier renounces political ambition.

Mark of sovereignty (2nd and 3rd sentences)

  1. Positively, this clause singles out the military as the guardian of the people and of the integrity of the national territory and therefore ultimately of the majesty of the law.
  2. Negatively, it is an expression of disapproval of military abuses.

Sec 4.  The prime duty of the Government is to serve and protect the people.  The Government may call upon the people to defend the State and, in the fulfillment thereof, all citizens may be required, under conditions provided by law, to render personal, military, or civil service.

Sec. 5.  The maintenance of peace and order, the protection of life, liberty and property, and the promotion of the general welfare are essential for the enjoyment by all the people of the blessings of democracy.

Sec. 6.  The separation of Church and State shall be inviolable.

Selected state policies

Sec. 7.  The State shall pursue an independent foreign policy.  In its relations with other states, the paramount consideration shall be national sovereignty, territorial integrity, national interest, and the right to self-determination.

Sec. 8.  The Philippines, consistent with the national interest, adopts and pursues a policy of freedom from nuclear weapons in its territory.

Policy of freedom from nuclear weapons
  1. The policy PROHIBITS:
    1. The possession, control and manufacture of nuclear weapons
    2. Nuclear arms tests.
  2. The policy does NOT prohibit the peaceful uses of nuclear energy.

Sec. 12.  The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution.  It shall equally protect the life of the mother and the life of the unborn from conception. etc.

Principle that the family is not a creature of the state.

Protection for the unborn
  1. It is not an assertion that the unborn is a legal person.
  2. It is not an assertion that the life of the unborn is placed exactly on the level of the life of the mother.  Hence, when it is necessary to save the life of the mother, the life of the unborn may be sacrificed.
  3. Under this provision, the Roe v. Wade doctrine allowing abortion up to the 6thmonth of pregnancy cannot be adopted in the Philippines because the life of the unborn is protected from the time of conception.

Sec. 16.  The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.

  1. While the right to a balanced and healthful ecology is found under the declaration of Principle and State Policies and not under the Bill of Rights, it does not follow that it is less important than any of the civil and political rights enumerated in the latter. (Oposa v. Factoran)
  2. The right to a balanced and healthful ecology carries with it the correlative duty to refrain from impairing the environment.  (Oposa v. Factoran)

Sec. 26.  The State shall guarantee equal access to opportunities for public service, and prohibit political dynasties as may be defined by law.

Sec. 27.  The State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption.

Sec. 28.  Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.

 

ARTICLE III – BILL OF RIGHTS

Section 1. 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.

Definition of “Police Power”:

1)      Power vested in the legislature

2)      By the Constitution

3)      To make, ordain, and establish

4)      All manner of wholesome and reasonable laws, statutes, and ordinances

5)      Either with penalties or  without

6)      Not repugnant to the constitution

7)      As they shall judge to be for the good and welfare of the commonwealth and of the subjects of the same.

Aspects of “Due Process”:

  1. Procedural due process– refers to the mode of procedure which government agencies must follow in the enforcement and application of laws.
  2. Substantive due process– prohibition against arbitrary laws.

Note:  PROCEDURAL DUE PROCESS:

  1. A law which hears before it condemns.
  2. Due process of law contemplates notice and opportunity to be heard before judgment is rendered affecting one’s person or property (Lopez v. Dir. of Lands)
  3. Due process depends on circumstances; it varies with the subject matter and the necessities of the situation.

Requisites of PROCEDURAL due process:

For JUDICIAL proceedings:  CODE:  C J N O H
  1. Acourt or tribunal clothed with judicial power to hear and determine the matter before it.
  2. Jurisdiction must be lawfully acquired over the person of the defendant or over the property which is the subject of the proceedings.
  3. The defendant must be givennoticeand an opportunity to be heard.
  4. Judgment must be rendered upon a lawfulh

For ADMINISTRATIVE proceedings: CODE: H E D S H I P

  1. The right to ahearing, which includes the right to present one’s case and submit evidence in support thereof.
  2. The tribunal must consider theevidence presented.
  3. Thedecision must have something to support itself.
  4. Evidence supporting the conclusion must bes
  5. The decision must be based on the evidence presented at thehearing or at least contained in the record and disclosed to the parties affected.
  6. The tribunal or body or any of its judges must act on its or his ownindependent consideration of the law and facts of the controversy, and not simply accept the views of a subordinate in arriving at a decision.
  7. The board or body should, in all controversial questions, render its decision in such a manner that theparties to the proceeding can know the various issues involved and the reasons for the decision rendered.

Note:

  1. What is required is not actual hearing, but a real opportunity to be heard.
  2. The requirement of due process can be satisfied by subsequent due hearing.
  3. Violation of due process: when same person reviews his own decision on appeal.
  4. Notice and hearing are required in judicial and quasi-judicial proceedings, but not in the promulgation of general rule.

For SCHOOL DISCIPLINARY proceedings:  CODE: W A In A D P

  1. The student must be informed inwriting of the nature and cause of any accusation against them.
  2. The student shall have the right toanswer the charges against him, with the assistance of counsel if desired.
  3. The student has the right to beinformed of the evidence against him.
  4. The student has the right toadduce evidence in his own behalf.
  5. The evidence must beduly considered by the investigating committee or official designated by the school authorities to hear and decide the case.
  6. The penalty imposed must beproportionate to the offense.

Note:

  1. The school has a contractual obligation to afford its students a fair opportunity to complete the course a student has enrolled for.
  2. Exceptions:
  3. Serious breach of discipline; or
  4. Failure to maintain the required academic standard.
  5. Proceedings in student disciplinary cases may be summary; cross-examination is not essential

Instances when hearings are NOT necessary:

  1. When administrative agencies are exercising theirquasi-legislative
  2. Abatement ofnuisance per se.
  3. Granting by courts ofprovisional remedies.
  4. Cases ofpreventive suspension.
  5. Removalof temporary employees in the government service.
  6. Issuance of warrants ofdistraint and/or levy by the BIR Commissioner.
  7. Cancellation of the passportof a person charged with a crime.
  8. Issuance ofsequestration orders(considered a provisional remedy).
  9. Judicial order which prevents an accused fromtravelling abroadin order to maintain the effectivity of the court’s jurisdiction.
  10. Suspension of a bank’s operationsby the Monetary Board upon a prima facie finding of liquidity problems in such bank.

Note:

  1. The right to counsel is a very basic requirement of substantive due process and has to be observed even in administrative and quasi-judicial bodies.
  2. The right to appeal is astatutory privilegethat may be exercised only in the manner in accordance with law.

Requisites of SUBSTANTIVE due process: CODE: I M

  1. TheINTERESTSof the public generally, as distinguished from those of a particular class, requires the interference by the government and
  2. TheMEANSemployed are necessary for the accomplishment of the purpose and not unduly oppressive upon individuals.

Requirements of a valid ordinance:

  1. Must not contravene the Constitution or any statute
  2. Must not be unfair or oppressive
  3. Must not be partial or discriminatory
  4. Must not prohibit, but may regulate trade
  5. Must be general and consistent with public policy
  6. Must not be unreasonable
When is a law VAGUE?
  1. When it lacks COMPREHENSIBLE STANDARDS
  2. That men of ordinary intelligence must necessarily GUESS as to its meaning
  3. And differ as to its application

Equal Protection of the law

The equality that it guarantees is legal equality or the equality of all persons before the law.  It does not demand absolute equality.  It merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced.

Requisites for valid classification for purposes of the equal protection clause

The classification must:        CODE:  SGEE

  1. Rest onSUBSTANTIAL DISTINCTIONS
  2. BeGERMANE to the purposes of the law
  3. Not limited toexisting conditions only
  4. APPLYEQUALLY to all members of the SAME CLASS.

Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the person or things to be seized.

General Rule: Search and seizures are unreasonable unless authorized by a validly issued search warrant or warrant of arrest

Requisites for a valid warrant:            CODE:                P  J  E  D

  1. It must be issued uponPROBABLE CAUSE.
  2. The existence of probable cause is determined personally by theJUDGE.
  3. The judge mustEXAMINE UNDER OATH the complainant and the witnesses he may produce.
  4. The warrant must PARTICULARLYDESCRIBE the place to be searched and person or things to be seized.
Definition of “PROBABLE CAUSE”

For the issuance of a warrant of arrest:

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 by the person sought to be arrested.

For the issuance of a search warrant:

Probable cause would mean 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 connection with the offense are in the place to be searched.

Note:   Probable cause for the issuance of a search warrant does NOT require that the probable guilt of a specific offender be established, unlike in the case of a warrant of arrest.

Existence of probable cause “DETERMINED PERSONALLY BY THE JUDGE”

The judge is NOT required to personally examine the complainant and his witnesses. What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause (Soliven v. Makasiar, 167 SCRA 394).

To be sure, the Judge must go beyond the prosecutor’s certification and investigation report whenever necessary (Lim v. Felix).

Procedure:

  1. The judge personally evaluates the report and supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest or
  2. If on the basis thereof, the judge finds no probable cause, he may disregard the fiscal’s report and require the submission of supporting affidavits of witnesses to aid him in arriving at the conclusion as to the existence of probable cause.

Examination “UNDER OATH OR AFFIRMATION OF THE COMPLAINANT AND WITNESSES”

  1. The oath required must refer to the truth of the facts within the personal knowledge of the complainant or his witnesses because the purpose is to convince the judge of the existence of probable cause (Alvarez v. CFI, 64 Phil. 33).
  2. The true test of sufficiency of an affidavit to warrant the issuance of a search warrant is whether it has been drawn in such a manner that perjury could be charged thereon and affiant be held liable for the damages caused (Alvarez v. CFI).

PARTICULARITY OF DESCRIPTION (SEARCH WARRANT)

  1. A search warrant may be said to particularly describe the things to be seized whenthe description therein is as specific as the circumstances will ordinarily allowor
  2. Whenthe description expresses a conclusion of fact – not of law – by which the warrant officer may be guided in making the search and seizure or
  3. Whenthe things described are limited to those which bear a direct relation to the offense for which the warrant is being issued (Bache and Co. v. Ruiz, 37 SCRA 823).

JOHN DOE WARRANT

A “John Doe” warrant can satisfy the requirement of particularity of description if it contains a descriptio personae such as will enable the officer to identify the accused (People v. Veloso, 48 Phil. 159)

GENERAL WARRANT

A general warrant is one that does not allege any specific acts or omissions constituting the offense charged in the application for the issuance of the warrant. It contravenes the explicit demand of the Bill of Rights that the things to be seized be particularly described.

VALID WARRANTLESS SEARCH

  1. Search made as an incident to lawful arrest
  2. An officer making an arrest may take from the person arrested:
    1. Any money or property found upon his person which was used in the commission of the offense or
    2. Was the fruit thereof or
    3. Which might furnish the prisoner with the means of committing violence or escaping or
    4. Which may be used in evidence in the trial of the case
  3. The search must be made simultaneously with the arrest and it may only be made in the area within the reach of the person arrested
  4. Search of moving vehicles
  5. This exception is based on exigency. Thus, if there is time to obtain a warrant in order to search the vehicle, a warrant must first be obtained.
  6. The search of a moving vehicle must be based on probable cause.
  7. Seizure of goods concealed to avoid customs duties/authorized under the Tariffs and Customs Code
  8. The Tariffs and Customs Code authorizes persons having police authority under the Code to effect search and seizures without a search warrant to enforce customs laws.
  9. Exception: A search warrant is required for the search of a dwelling house.
  10. Searches under this exception include searches at borders and ports of entry. Searches in these areas do not require the existence of probable cause.
  11. Seizure of evidence in plain view
  12. To be a valid warrantless search, the articles must be open to the eye and hand.
  13. The peace officer comes upon them inadvertently.
  14. Waiver of right
  15. Requisites of a valid waiver:
  16. The right exists.
  17. The person had actual or constructive knowledge of the existence of such right.
  18. There is an actual intention to relinquish such right.
  19. The right against unreasonable searches and seizures is a personal right. Thus, only the person being searched can waive the same.
  20. Waiver requires a positive act from the person. Mere absence of opposition is not a waiver.
  21. The search made pursuant to the waiver must be made within the scope of the waiver.

Note:

  1. Checkpoints: as long as the vehicle is neither searched nor its occupants subjected to a body search and the inspection of the vehicle is limited to a visual search = valid search (Valmonte V. De Villa)
  2. Carroll rule: warrantless search of a vehicle that can be quickly moved out of the locality or jurisdiction
  3. The 1987 Constitution has returned to the 1935 rule that warrants may be issued only by judges, but the Commissioner of Immigration may order the arrest of an alien in order to carry out a FINAL deportation order.

VALID WARRANTLESS ARRESTS

  1. When the person to be arrested has committed, is actually committing, or is about to commit an offense in the presence of the arresting officer.
  2. When an offense has in fact just been committed and the arresting officer has personal knowledge of facts indicating that the person to be arrested has committed it.
  3. 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 temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.
  4. Waiver of an invalid arrest: 

When a person who is detained applies for bail, he is deemed to have waived any irregularity which may have occurred in relation to his arrest.

  1. Hot pursuit

A.  The pursuit of the offender by the arresting officer must be continuous from the time of the commission of the offense to the time of the arrest.

B.  There must be no supervening event which breaks the continuity of the chase.

  1. Stop and frisk

When a policeman observes suspicious activity which leads him to believe that a crime is about to be committed, he can investigate the suspicious looking person and may frisk him for weapons as a measure of self-protection. Should he find, however, a weapon on the suspect which is unlicensed, he can arrest such person then and there for having committed an offense in the officer’s presence.

Section 3.  (1)  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.

(2)    Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceedings.

 

R.A. 4200 (Anti-Wiretapping Act)

  1. The law does not distinguish between a party to the private communication or a third person.  Hence, both a party and a third person could be held liable under R.A. 4200 if they commit any of the prohibited acts under R.A. 4200 (Ramirez v. Ca)
  2. The use of a telephone extension to overhear a private conversation is not a violation of R.A. 4200 because it is not similar to any of the prohibited devices under the law.  Also, a telephone extension is not purposely installed for the purpose of secretly intercepting or recording private communication.  (Gaanan v. IAC, 145 SCRA 112)

Types of communication protected:

Letters, messages, telephone calls, telegrams and the like.

Exclusionary rule:

Any evidence obtained shall be inadmissible for any purpose in any proceeding.  However, in the absence of governmental interference, the protection against unreasonable search and seizure cannot be extended to acts committed by private individuals. (People v. Martin)

Section 4.  No law shall be passed abridging the freedom of speech, of expression, or of the press, or of the right of the people peaceably to assemble and petition the government for redress of grievances.

 

What are considered protected speech:

Protected speech includes every form of expression, whether oral, written, tape or disc recorded.  It includes motion pictures as well as what is known as symbolic speech such as the wearing of an armband as a symbol of protest.  Peaceful picketing has also been included within the meaning of speech.

Prohibitions under Section 4
  1. Prohibition against PRIOR RESTRAINT
  2. Prohibition against SUBSEQUENT PUNISHMENT
Prohibition against prior restraint
  1. Prior restraint means official governmental restrictions on the press or other forms of expression in advance of actual publication or dissemination.
  2. Examples/forms of prior restraint
    1. movie censorship
    2. judicial prior restraint = injunction against publication
    3. license taxes based on gross receipts for the  privilege of engaging in the business of advertising in any newspaper
    4. flat license fees for the privilege of selling religious books
When prohibition does not apply
  1. During a war.  Ex.  Government can prevent publication about the number/locations of its troops (Near v. Minnesota, 238 US 697)
  2. Obscene publications.
Standards for allowable subsequent punishment

    TEST                                                   CRITERION

1.  Dangerous Tendency Test                         There should be a RATIONAL CONNECTION between the speech and the evil apprehended.

2.  Clear and Present Danger Test                  There should be a clear and present danger that the words when used under such circumstances are of such a nature as to create a CLEAR AND PRESENT DANGER that they will bring about the substantive evils that the State has a right to prevent.

3.  Balancing of Interests Test                        The courts should BALANCE the PUBLIC INTEREST served by legislation on one hand and the FREEDOM OF SPEECH (or any other constitutional right) on the other.  The courts will then decide where the greater weight should be placed.

Freedom of Speech

The doctrine on freedom of speech was formulated primarily for the protection of “core” speech, i.e. speech which communicates political, social or religious ideas.  These enjoy the same degree of protection.  Commercial speech, however, does not.

Commercial Speech

  1. A communication which no more than proposes a commercial transaction.
  2. To enjoy protection:
    1. It must not be false or misleading; and
    2. It should not propose an illegal transaction.
  3. Even truthful and lawful commercial speech may be regulated if:
    1. Government has a substantial interest to protect;
    2. The regulation directly advances that interest; and
    3. It is not more extensive than is necessary to protect that interest.  (Central Hudson Gas and Electric Corp. v. Public Service Commission of NY,447 US 557)

Unprotected Speech

  1. LIBEL
  2. FAIR COMMENT (U.S. Rule). These are statements of OPINION, not of fact, and are not considered actionable, even if the words used are neither mild nor temperate.  What is important is that the opinion is the true and honest opinion of the person.  The statements are not used to attack personalities but to give one’s opinion on decisions and actions.
  3. With respect to public personalities (politicians, actors, anyone with a connection to a newsworthy event), opinions can be aired regarding their public actuations.  Comment on their private lives, if not germane to their public personae, are not protected.
  4. OBSCENITY
  5. Test for obscenity(Miller v. California)
  6. Whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest.
  7. Whether the work depicts or describes, in a patently offensive way, sexual conduct, specifically defined by law.
  8. Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.
  9. Procedure for seizure of allegedly obscene publications
  10. Authorities must apply for issuance of search warrant.
  11. Court must be convinced that the materials are obscene.  Apply clear and present danger test.
  12. Judge will determine whether they are in fact “obscene”.
  13. Judge will issue a search warrant.
  14. Proper action should be filed under Art. 201 of the RPC.
  15. Conviction is subject to appeal.

Right of Assembly and Petition

  1. The standards for allowable impairment of speech and press also apply to the right of assembly and petition.
  2. Rules on assembly in public places:
  3. Applicant should inform the licensing authority of the date, the public place where and the time when the assembly will take place.
  4. The application should be filed ahead of time to enable the public official concerned to appraise whether there are valid objections to the grant of the permit or to its grant, but in another public place.  The grant or refusal should be based on the application of the Clear and Present Danger Test.
  5. If the public authority is of the view that there is an imminent and grave danger of a substantive evil, the applicants must be heard on the matter.
  6. The decision of the public authority, whether favorable or adverse, must be transmitted to the applicants at the earliest opportunity so that they may, if they so desire, have recourse to the proper judicial authority.
  7. Rules on assembly in private properties:

Only the consent of the owner of the property or person entitled to possession thereof is required.

Section 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.

 

Clauses under Section 5

  1. Non-establishment clause
  2. Free exercise of Religion

Distinction between the clauses (School District v. Schempp, 374 US 203)

  1. Thenon-establishment clausedoes not depend upon any showing of direct governmental compulsion.  It is violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce non-observing individuals or not.  The test of compliance with the non-establishment clause can be stated as follows: What are the purposes and primary effect of the enactment?  If either is the advancement or inhibition of religion, the law violates the non-establishment clause.  Thus, in order for a law to comply with the non-establishment clause, two requisites must be met.  First, it has a secular legislative purpose.  Second, its primary effect neither advances nor inhibits religion.
  2. Thefree exercise of religion clausewithdraws from legislative power the exertion of any restraint on the free exercise of religion.  In order to show a violation of this clause, the person affected must show the coercive effect of the legislation as it operates against him in the practice of his religion.  While the freedom to believe (non-establishment) is absolute, the moment such belief flows over into action, it becomes subject to government regulation.

Requisites for government aid to be allowable:

  1. It must have a secular legislative purpose;
  2. It must have a primary effect that neither advances nor inhibits religion;
  3. It must not require excessive entanglement with recipient institutions.

Section 6.  The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court.  Neither shall the right to travel be impaired except in the interest of national security, public safety or public health, as may be provided by law.

 

Rights guaranteed under Section 6:

  1. Freedom to choose and change one’s place of abode.
  2. Freedom to travel within the country and outside.

Curtailment of rights:

RIGHT                                                                        MANNER OF CURTAILMENT

1.  Liberty of abode                            Lawful order of the court and within the limits prescribed by law.

2.  Right to travel                                May be curtailed even by administrative officers (ex. passport officers) in the interest of national security, public safety, or public health, as may be provided by law.

Note:  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 that the Declaration of Human Rights and the Covenant on Human Rights have separate guarantees for these.  Hence, the right to return to one’s country is not covered by the specific right to travel and liberty of abode.  (Marcos v. Manglapus)

Section 7.  The right of the people to information on matters of public concern shall be recognized.

 

Rights guaranteed under Section 7

  1. Right to information on matters of public concern
  2. Right of access to official records and documents

Persons entitled to the above rights

Only Filipino citizens.

Discretion of government

The government has discretion with respect to the authority to determine what matters are of public concern and the authority to determine the manner of access to them.

Recognized restrictions on the right of the people to information:

  1. National security matters
  2. Intelligence information
  3. Trade secrets
  4. Banking transactions
  5. Diplomatic correspondence
  6. Executive sessions
  7. Closed door cabinet meetings
  8. Supreme Court deliberations

Section 8.  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.

The right to form associations shall not be impaired without due process of law and is thus an aspect of the right of liberty.  It is also an aspect of the freedom of contract.  In addition, insofar as the associations may have for their object the advancement of beliefs and ideas, the freedom of association is an aspect of the freedom of speech and expression, subject to the same limitation.

The right also covers the right not to join an association.

Government employees have the right to form unions.  They also have the right to strike, unless there is a statutory ban on them.

Section 9.  Private property shall not be taken for public use without just compensation.

Who can exercise the power of eminent domain:

1)      The national government

  1. Congress
  2. Executive, pursuant to legislation enacted by Congress

2)      Local government units, pursuant to an ordinance enacted by their respective  legislative bodies (under LGC)

3)      Public utilities, as may be delegated by law.

When is the exercise of the power of eminent domain necessary?

It is only necessary when the owner does not want or opposes the sale of his property.  Thus, if a valid contract exists between the government and the owner, the government cannot exercise the power of eminent domain as a substitute to the enforcement of the contract.

Elements of the power of eminent domain

1)      There is a TAKING of private property

2)      Taking is for PUBLIC USE

3)      Payment of JUST COMPENSATION

“TAKING”

 

A.  Elements:  CODE:  E P A P O

  1. Theexpropriator enters the property
  2. The entrance must not be for a momentary period, i.e., it must bepermanent
  3. Entry is made under warrant or color of legalauthority
  4. Property is devoted to public use
  5. Utilization of the property must be in such a way as tooust the owner and deprive him of the beneficial enjoyment of his property.

B.  Compensable taking does not need to involve all the property interests which form part of the right of ownership.  When one or more of the property rights are appropriated and applied to a public purpose, there is already a compensable taking, even if bare title still remains with the owner.

“PUBLIC USE”

  1. Public use, for purposes of expropriation, is synonymous with public welfare as the latter term is used in the concept of police power.
  2. Examples of public use include land reform and socialized housing.

“JUST COMPENSATION”

  1. Compensation is just if the owner receives a sum equivalent to the market value of his property.  Market value is generally defined as the fair value of the property as between one who desires to purchase and one who desires to sell.
  2. The point of reference use in determining fair value is the value at the time the property was taken.  Thus, future potential use of the land is not considered in computing just compensation.

Judicial review of the exercise of the power of eminent domain

  1. To determine the adequacy of the compensation
  2. To determine the necessity of the taking
  3. To determine the “public use” character of the taking.  However, if the expropriation is pursuant to a specific law passed by Congress, the courts cannot question the public use character of the taking.

When municipal property is taken by the State:

Compensation is required if the property is a patrimonial property, that is, property acquired by the municipality with its private funds in its corporate or private capacity.  However, if it is any other property such a public buildings or legua comunal held by the municipality for the State in trust for the inhabitants, the State is free to dispose of it at will.

Point of reference for valuating a piece of property:

General rule:  The value must be that as of the time of the filing of the complaint for expropriation.

Exception:  When the filing of the case comes later than the time of taking and meanwhile the value of the property has increased because of the use to which the expropriator has put it, the value is that of the time of the earlier taking.  BUT if the value increased independently of what the expropriator did, then the value is that of the latter filing of the case.

Section 10.  No law impairing the obligation of contracts shall be passed.

When does a law impair the obligation of contracts:

1)      If it changes the terms and conditions of a legal contract either as to the time or mode of performance

2)      If it imposes new conditions or dispenses with those expressed

3)      If it authorizes for its satisfaction something different from that provided in its terms.

A mere change in PROCEDURAL REMEDIES which does not change the substance of the contract, and which still leaves an efficacious remedy for enforcement does NOT impair the obligation of contracts.

A valid exercise of police power is superior to obligation of contracts.

Section 12.  Rights of person under investigation for the commission of an offense.

Rights of person under investigation for the Commission of an offense CODE:  SCISI

1)      Right to remain silent

2)      Right to have competent and independent counsel, preferably of his own choice

3)      Right to provided with the services of counsel if he cannot afford the services of one.

4)      Right to be informed of these rights.

When rights are available:

1)      AFTER a person has been taken into custody or

2)      When a person is otherwise deprived of his freedom of action in any significant way.

3)      When the investigation is being conducted by the government (police, DOJ, NBI) with respect to a criminal offense.

4)      Signing of arrest reports and booking sheets.

When rights are not available:

1)      During a police line-up.  Exception:  Once there is a move among the investigators to elicit admissions or confessions from the suspect.

2)      During administrative investigations.

3)      Confessions made by an accused at the time he voluntarily surrendered to the police or outside the context of a formal investigation.

4)      Statements made to a private person.

Exclusionary rule

1)      Any confession or admission obtained in violation of this section shall be inadmissible in evidence against him (the accused).

2)      Therefore, any evidence obtained by virtue of an illegally obtained confession is also inadmissible, being the fruit of a poisoned tree.

Requisites of valid waiver:

1)      Waiver should be made in WRITING

2)      Waiver should be made in the PRESENCE OF COUNSEL.

Section 13.  Right to bail

Who are entitled to bail:

1)      All persons ACTUALLY DETAINED

2)      shall, BEFORE CONVICTION

3)      Be entitled to bail.

Who are not entitled to bail:

1)        Persons charged with offenses PUNISHABLE by RECLUSION PERPETUA or DEATH, when evidence of guilt is strong

2)        Persons CONVICTED by the trial court.  Bail is only discretionary pending appeal.

3)        Persons who are members of the AFP facing a court martial.

Other rights in relation to bail.

1)      The right to bail shall NOT be impaired even when the privilege of the writ of habeas corpus is suspended.

2)      Excessive bail shall not be required.

Factors considered in setting the amount of bail:

1)      Ability to post bail

2)      Nature of the offense

3)      Penalty imposed by law

4)      Character and reputation of the accused

5)      Health of the accused

6)      Strength of the evidence

7)      Probability of appearing at the trial

8)      Forfeiture of previous bail bonds

9)      Whether accused was a fugitive from justice when arrested

10)  If accused is under bond in other cases

Implicit limitations on the right to bail:

  1. The person claiming the right must be in actual detention or custody of the law.
  2. The constitutional right is available only in criminal cases, not, e.g. in deportation proceedings.

Note: 

  1. Right to bail is not available in the military.
  2. Apart from bail, a person may attain provisional liberty through recognizance.

Section 14. Rights of an accused

Rights of a person charged with a criminal offense

  1. Right to due process of law
  2. Right to be presumed innocent
  3. Right to be heard by himself and counsel
  4. Right to be informed of the nature and cause of the accusation against him
  5. Right to have a speedy, impartial and public trial
  6. Right to meet the witnesses face to face
  7. Right to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf

 

“DUE PROCESS”

This means that the accused can only be convicted by a tribunal which is required to comply with the stringent requirements of the rules of criminal procedure.

“PRESUMPTION OF INNOCENCE”

The Constitution does not prohibit the legislature from providing that proof of certain facts leads to a prima facie presumption of guilt, provided that the facts proved have a reasonable connection to the ultimate fact presumed.

Presumption of guilt should not be conclusive.

“RIGHT TO BE HEARD BY HIMSELF AND COUNSEL”

The right to be heard includes the following rights:

  1. Right to be present at the trial
  2. The right to be present covers the period from ARRAIGNMENT to PROMULGATION of sentence.
  3. After arraignment, trial may proceed notwithstanding absence of accused, provided 2 requisites are met. Note, that trial in absentia is allowed only if the accused has been validly arraigned.

(i)                 Accused has been duly notified; and

(ii)               His failure to appear is unjustifiable.

  1. The accused may waive the right to be present at the trial by not showing up. However, the court can still compel the attendance of the accused if necessary for identification purposes. Exception: If the accused, after arraignment, has stipulated that he is indeed the person charged with the offense and named in the information, and that any time a witness refers to a name by which he is known, the witness is to be understood as referring to him.
  2. While the accused is entitled to be present during promulgation of judgement, the absence of his counsel during such promulgation does not affect its validity.

2.  Right to counsel

(a)    Right to counsel means the right to EFFECTIVE REPRESENTATION.

(b)   If the accused appears at arraignment without counsel, the judge must:

(i)     Inform the accused that he has a right to a counsel before arraignment

(ii)   Ask the accused if he desires the aid of counsel

(iii) If the accused desires counsel, but cannot afford one, a counsel de oficio must be appointed

(iv) If the accused desires to obtain his own counsel, the court must give him a reasonable time to get one.

3.  Right to an impartial judge

4.  Right of confrontation and cross-examination

5.  Right to compulsory process to secure the attendance of witnesses

“RIGHT TO BE INFORMED OF THE NATURE AND CAUSE OF ACCUSATION AGAINST HIM”

Purposes of the right:

1)      To furnish the accused with a description of the charge against him as will enable him to make his defenses

2)      To avail himself of his conviction or acquittal against a further prosecution for the same cause

3)      To inform the court of the facts alleged.

If the information fails to allege the material elements of the offense, the accused cannot be convicted thereof even if the prosecution is able to present evidence during the trial with respect to such elements.

The real nature of the crime charged is determined from the recital of facts in the information. It is not determined based on the caption or preamble thereof nor from the specification of the provision of law allegedly violated

“RIGHT TO SPEEDY, IMPARTIAL AND PUBLIC TRIAL”

Factors used in determining whether the right to a speedy trial has been violated.

1)      Time expired from the filing of the information

2)      Length of delay involved

3)      Reasons for the delay

4)      Assertion or non-assertion of the right by the accused

5)      Prejudice caused to the defendant.

Effect of dismissal based on the ground of violation of the accused’s right to speedy trial

If the dismissal is valid, it amounts to an acquittal and can be used as basis to claim double jeopardy. This would be the effect even if the dismissal was made with the consent of the accused

Remedy of the accused if his right to speedy trial has been violated

He can move for the dismissal of the case.

If he is detained, he can file a petition for the issuance of writ of habeas corpus.

Definition of impartial trial

The accused is entitled to the “cold neutrality of an impartial judge”.

It is an element of due process.

Definition of public trial

The attendance at the trial is open to all irrespective of their relationship to the accused.  However, if the evidence to be adduced is “offensive to decency or public morals”, the public may be excluded.

The right of the accused to a public trial is not violated if the hearings are conducted on Saturdays, either with the consent of the accused or if failed to object thereto.

 

“RIGHT TO MEET WITNESS FACE TO FACE”

Purposes of the right:

  1. To afford the accused an opportunity to cross-examine the witness
  2. To allow the judge the opportunity to observe the deportment of the witness

Failure of the accused to cross-examine a witness

If the failure of the accused to cross-examine a witness is due to his own fault or was not due to the fault of the prosecution, the testimony of the witness should be excluded.

When the right to cross-examine is demandable

It is demandable only during trials. Thus, it cannot be availed of during preliminary investigations.

Principal exceptions to the right of confrontation
  1. The admissibility of “dying declarations”
  2. Trial in absentia under Section 14(2)
  3. With respect to child testimony

Section 16.  All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies.

Distinction between Section 14 and Section 16

While the rights of an accused only apply to the trial phase of criminal cases, the right to a speedy disposition of cases covers ALL phases of JUDICIAL, QUASI-JUDICIAL or ADMINISTRATIVE proceedings.

Section 17.  No person shall be compelled to be a witness against himself.

When is a question incriminating:

A question tends to incriminate when the answer of the accused or the witness would establish a fact which would be a necessary link in a chain of evidence to prove the commission of a crime by the accused or the witness.

Distinction between an accused and an ordinary witness

  1. An accused can refuse to take the witness stand by invoking the right against self-incrimination.
  2. An ordinary witness cannot refuse to take the stand.  He can only refuse to answer specific questions which would incriminate him in the commission of an offense.

Scope of right

  1. What is PROHIBITED is the use of physical or moral compulsion to extort communication from the witness or to otherwise elicit evidence which would not exist were it not for the actions compelled from the witness.
  2. The right does NOT PROHIBIT            the examination of the body of the accused or the use of findings with respect to his body as physical evidence.  Hence, the fingerprinting of an accused would not violate the right against self-incrimination.  However, obtaining a sample of the handwriting of the accused would violate this right if he is charged for falsification.
  3. The accused cannot be compelled to produce a private document in his possession which might tend to incriminate him.  However, a third person in custody of the document may be compelled to produce it.

When the right can be invoked:

  1. In criminal cases
  2. In administrative proceedings if the accused is liable to a penalty (Ex. Forfeiture of property)

Who can invoke the right:

Only natural persons.  Judicial persons are subject to the visitorial powers of the state in order to determine compliance with the conditions of the charter granted to them.

Section 18.  Right against involuntary servitude

 

Definition of involuntary servitude

It is every condition of enforced or compulsory service of one to another no matter under what form such servitude may be disguised.

Exceptions:

  1. Punishment for a crime for which the party has been duly convicted
  2. Personal military or civil service in the interest of national defense
  3. Return to work order issued by the DOLE Secretary or the President

Section 19.  Prohibition against cruel, degrading and inhuman punishment

When is a penalty “cruel, degrading and inhuman”?

  1. A penalty is cruel and inhuman if it involves torture or lingering suffering.  Ex. Being drawn and quartered.
  2. A penalty is degrading if it exposes a person to public humiliation.  Ex.  Being tarred and feathered, then paraded throughout town.

Standards used:

  1. The punishment must not be so severe as to be degrading to the dignity of human beings.
  2. It must not be applied arbitrarily.
  3. It must not be unacceptable to contemporary society
  4. It must not be excessive, i.e. it must serve a penal purpose more effectively than a less severe punishment would.

Excessive fine

A fine is excessive, when under any circumstance, it is disproportionate to the offense.

Note:  Fr. Bernas says that the accused cannot be convicted of the crime to which the punishment is attached if the court finds that the punishment is cruel, degrading or inhuman.

Reason:  Without a valid penalty, the law is not a penal law.

Section 20.  No person shall be imprisoned for debt or non-payment of a poll tax.

Definition of debt under Section 20

1)      Debt refers to a CONTRACTUAL obligation, whether express or implied, resulting in any liability to pay money.  Thus, all other types of obligations are not within the scope of this prohibition.

2)      Thus, if an accused fails to pay the fine imposed upon him, this may result in his subsidiary imprisonment because his liability is ex delicto and not ex contractu.

3)      A FRAUDULENT debt may result in the imprisonment of the debtor if:

  1. The fraudulent debt constitutes a crime such as estafa and
  2. The accused has been duly convicted.

Section 21.  No person shall be twice put in jeopardy of punishment for the same offense.  If an act punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act.

Requisites for a valid defense of double jeopardy:  CODE: ATS

1)      First jeopardy must have attached prior to the second.

2)      The first jeopardy must have terminated.

3)      The second jeopardy must be for the same offense as that in the first.

When does jeopardy ATTACH:  (1st requisite) CODE:  CICAV

1)      A person is charged

2)      Under a complaint or information sufficient in form and substance to sustain a conviction

3)      Before a court of competent jurisdiction

4)      After the person is arraigned

5)      Such person enters a valid plea.

When does jeopardy NOT attach:

1)      If information does not charge any offense

2)      If, upon pleading guilty, the accused presents evidence of complete self-defense, and the court thereafter acquits him without entering a new plea of not guilty for accused.

3)      If the information for an offense cognizable by the RTC is filed with the MTC.

4)      If a complaint filed for preliminary investigation is dismissed.

When does first jeopardy TERMINATE:  (2ND REQUISITE)

1)      Acquittal

2)      Conviction

3)      Dismissal W/O the EXPRESS consent of the accused

4)      Dismissal on the merits.

Examples of termination of jeopardy:

1)       Dismissal based on violation of the right to a speedy trial.  This amounts to an acquittal.

2)       Dismissal based on a demurrer to evidence.  This is a dismissal on the merits.

3)       Dismissal on motion of the prosecution, subsequent to a motion for reinvestigation filed by the accused.

4)       Discharge of an accused to be a state witness.  This amounts to an acquittal.

When can the PROSECUTION  appeal from an order of dismissal:

1)      If dismissal is on motion of the accused.  Exception:  If motion is based on violation of the right to a speedy trial or on a demurrer to evidence.

2)      If dismissal does NOT amount to an acquittal or dismissal on the merits

3)      If the question to be passed upon is purely legal.

4)      If the dismissal violates the right of due process of the prosecution.

5)      If the dismissal was made with grave abuse of discretion.

What are considered to be the “SAME OFFENSE”:  (under the 1st sentence of Section 21)

1)      Exact identity between the offenses charged in the first and second cases.

2)      One offense is an attempt to commit or a frustration of the other offense.

3)      One offense is necessarily included or necessary includes the other.

Note:  where a single act results in the violation of different laws or different provisions of the same law, the prosecution for one will not bar the other so long as none of the exceptions apply.

Definition of double jeopardy (2nd sentence of Sec. 21)

Double jeopardy will result if the act punishable under the law and the ordinance are the same.  For there to be double jeopardy, it is not necessary that the offense be the same.

SUPERVENING FACTS

1)      Under the Rules of Court, a conviction for an offense will not bar a prosecution for an offense which necessarily includes the offense charged in the former information where:

  1. The graver offense developed due to a supervening fact arising from the same act or omission constituting the former charge.
  2. The facts constituting the graver offense became known or were discovered only after the filing of the former information.
  3. The plea of guilty to the lesser offense was made without the consent of the fiscal and the offended party.

2)      Under (1)(b), if the facts could have been discovered by the prosecution but were not discovered because of the prosecution’s incompetence, it would not be considered a supervening event.

Effect of appeal by the accused:

If the accused appeals his conviction, he WAIVES his right to plead double jeopardy.  The whole case will be open to review by the appellate court.  Such court may even increase the penalties imposed on the accused by the trial court.

Section 22.  No ex post facto law or bill of attainder shall be enacted.

Definition of ex-post facto law.

1)       One which makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes such action.

2)       One which aggravates the crime or makes it greater than when it was committed.

3)       One which changes the punishment and inflicts a greater punishment than that which the law annexed to the crime when it was committed.

4)       One which alters the legal rules of evidence and receives less testimony than the law required at the time of the commission of the offense in order to convict the accused.

5)       One which assumes to regulate civil rights and remedies only BUT, in effect, imposes a penalty or deprivation of a right, which, when done, was lawful.

6)       One which deprives a person accused of a crime of some lawful protection to which he has become entitled such as the protection of a former conviction or acquittal, or a proclamation of amnesty.

Note:  The prohibition on ex post facto laws only applies to retrospective PENAL laws.

Definition of BILL OF ATTAINDER

1)      A bill of attainder is a LEGISLATIVE act which inflicts punishment W/O JUDICIAL trial.

2)      The bill of attainder does not need to be directed at a specifically named person.  It may also refer to easily ascertainable members of a group in such a way as to inflict punishment on them without judicial trial.

3)      Elements of the bill of attainder

  1. There must be a LAW.
  2. The law imposes a PENAL burden on a NAMED INVIDIDUAL/EASILY ASCERTAINABLE MEMBERS of a GROUP.
  3. The penal burden is imposed DIRECTLY by the LAW W/O JUDICIAL trial.

 

ARTICLE IV – CITIZENSHIP

Who are citizens of the Philippines?

1)      Those who are citizens of the Philippines at the time of the adoption of the 1987 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.

4)      Those who are naturalized in accordance with law.

Modes of acquiring citizenship:

1)      Jus Soli – acquisition of citizenship on the basis of place of birth

2)      Jus Sanguinis – acquisition of citizenship on the basis of blood relationship

3)      Naturalization – the legal act of adopting an alien and clothing him with the privilege of a native-born citizen.

Note:  The Philippines follows (2) and (3)

Election of citizenship under the 1987 Constitution:

Prior to the 1973 Constitution, if a Filipina married an alien, she lost her Filipino citizenship.  Hence, her child would have to elect Filipino citizenship upon reaching the age of majority.  Under the 1973 Constitution, however, children born of Filipino mothers were already considered Filipinos.  Therefore, the provision on election of citizenship under the 1987 Constitution only applies to those persons who were born under the 1935 Constitution.  In order for the children to elect Filipino citizenship, the mothers must have been Filipinos at the time of their marriage.  So, if your mother was a Filipina who married an alien under the 1935 constitution and you were born before January 17, 1973, you can elect Filipino citizenship upon reaching the age of majority.

When must the election be made:

The election must be made within a reasonable period after reaching the age of majority.

Effects of naturalization:

1)      The legitimate minor children of the naturalized father become Filipinos as well.

2)      The wife also becomes a Filipino citizen, provided that she does not have any disqualification which would bar her from being naturalized.

Natural-born citizens:

1)      Citizens of the Philippines from birth who do not need to perform any act to acquire or perfect their Philippine citizenship.

2)      Those who elect Philippine citizenship under Art. IV, Sec. 1(3) of 1987 Constitution.

Marriage of Filipino with an alien:

1)      General Rule:  The Filipino RETAINS Philippine citizenship

2)      Exception:  If, by their act or omission they are deemed, under the law, to have renounced it.

Examples of renunciation of Philippine citizenship:

1)      Voluntarily obtaining foreign passport

2)      Pledging allegiance to another country (ex. by becoming a naturalized citizen of another country)

Re-acquisition of citizenship

Natural-born Filipinos who are deemed to have lost their citizenship may re-acquire the same via repatriation proceedings.  This involves taking an oath of allegiance and filing the same with the civil registry.

How may one lose citizenship:

  1. By naturalization in a foreign country
  2. By express renunciation of citizenship
  3. By subscribing oath or allegiance to a foreign Constitution
  4. By serving in the armed forces of an enemy country
  5. By being a deserter of the armed forces of one’s country

How may one reacquire citizenship:

  1. By direct act of Congress
  2. By naturalization
  3. By repatriation

 

ARTICLE V – SUFFRAGE

 

Qualifications:                                                CODE:  CD18RR

1)      Citizen of the Philippines

2)      Not Disqualified by law

3)      At least 18 years old

4)      Resident of the Philippines for at least 1 year

5)      Resident of the place wherein he/she proposes to vote for at least 6 months immediately preceding the election.

Note:  NO literacy, property or other substantive requirement can be imposed on the exercise of suffrage.

Residency requirement

Residency, under Article V has 2 senses:

1.  DOMICILE – This is in reference to the 1 year residency requirement in the Philippines.

2.  TEMPORARY RESIDENCE – This is in reference to the 6 month residency requirement in the place where one wants to vote.  In this case, residence can either mean domicile or temporary residence.

Disqualifications:

1)      Any person sentenced by final judgment to imprisonment of not less than 1 year, which disability has not been removed by plenary pardon.

2)      Any person adjudged by final judgment of having violated his allegiance to the Republic of the Philippines.

3)      Insane or feeble-minded persons.

Note:  Under the 2nd disqualification, the right to vote is automatically re-acquired upon the expiration of 5 years after the service of sentence.

 

ARTICLE VI – THE LEGISLATIVE DEPARTMENT

Sec. 1.  The legislative power shall be vested in the Congress of the Philippines, which shall consist of a Senate and a House of Representatives, except to the extent reserved to the people by the provision on initiative and referendum.

 

Definition of Legislative Power:

The authority to make laws and to alter or repeal them.

Classification of legislative power: (O De CO)

  1. Original – Possessed by the people in their sovereign capacity
  2. Delegated – Possessed by Congress and other legislative bodies by virtue of the Constitution
  3. Constituent – The power to amend or revise the Constitution
  4. Ordinary – The power to pass ordinary laws

Note:

The original legislative power of the people is exercised via initiative and referendum.  In this manner, people can directly propose and enact laws, or approve or reject any act or law passed by Congress or a local government unit.

Limits on the legislative power of Congress:

  1. Substantive – limitations on the content of laws. E.g. no law shall be passed establishing a state religion.
  2. Procedural – limitations on the manner of passing laws. E.g. generally a bill must go through three readings on three separate days.

Note:

Provided that these two limitations are not exceeded, Congress’ legislative power is plenary.

Corollaries of legislative power:

  1. Congress cannot pass irrepealable laws.  Since Congress’ powers are plenary, and limited only by the Constitution, any attempt to limit the powers of future Congresses via an irrepealable law is not allowed.
  2. Congress, as a general rule, cannot delegate its legislative power.  Since the people have already delegated legislative power to Congress, the latter cannot delegate it any further.

EXCEPTIONS:

  1. Delegation of legislative power to local government units;
  2. Instances when the Constitution itself allows for such delegation [see Art. VI Sec. 23(2)]

What may Congress delegate:

Congress can only delegate, usually to administrative agencies, RULE-MAKING POWER or LAW EXECUTION.  This involves either of two tasks for the administrative agencies:

  1. “Filling up the details” on an otherwise complete statute; or
  2. Ascertaining the facts necessary to bring a “contingent” law or provision into actual operation.
Sections 2-4.  SENATE

Composition

24 senators who shall be elected at large by the qualified voters of the Philippines, as may be provided by law.

Qualifications

  1. Natural-born citizen;
  2. At least 35 years old on the day of election;
  3. Able to read and write;
  4. A registered voter; and
  5. Philippine resident for at least 2 years immediately preceding the day of the election.

Note:  The qualifications of both Senators and Members of the House are limited to those provided by the Constitution.  Congress cannot, by law, add or subtract from these qualifications.

Term of Office:

6 years, commencing (unless otherwise provided by law) at noon, 30 June next following their election.

Term Limitations:

  1. No Senator shall serve for more than 2 consecutive terms.
  2. Voluntary renunciation of office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected.
Sections 5-7.  HOUSE OF REPRESENTATIVES

Composition:

  1. Not more than 25 members, unless otherwise fixed by law; and
  2. Party-list Representative

Election of 250 members

  1. They shall be elected from legislative districts apportioned among the provinces, cities and the Metropolitan Manila area.
  2. Legislative districts are apportioned in accordance with the number of inhabitants of each area and on the basis of a uniform and progressive ratio.
  3. Each district shall comprise, as far as practicable, contiguous, compact and adjacent territory;
  4. Each city with at least 250,000 inhabitants will be entitled to at least one representative.
  5. Each province will have at least one representative.
  6. Legislative districts shall be re-apportioned by Congress within 3 years after the return of each census.  According to Jack, however, while the apportionment of districts is NOT a political question, the judiciary CANNOT compel Congress to do this.
  7. The standards used to determine the apportionment of legislative districts is meant to prevent ‘gerrymandering’, which is the formation of a legislative district out of separate territories so as to favor a particular candidate or party.

Qualifications

  1. Natural born citizen of the Philippines;
  2. At least 25 years old on the day of the election;
  3. Able to read and write;
  4. Registered voter in the district he seeks to represent; and
  5. A resident of such district for at least one year immediately preceding the day of the election.

Term of Office

  1. Each member of the House shall be elected for a term of three (3) years which shall commence (unless otherwise provided for by law) at noon on 30 June next following their election.
  2. Voluntary renunciation of office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected.

Term Limitations

No member of the House of Representatives shall serve for more than three (3) consecutive terms.

Distinctions between Term and Tenure

  1. Definition
  2. Termsmeans the period during which the elected officer is legally authorized to assume his office and exercise the powers thereof.
  3. Tenureis the actual period during which such officer actually holds his position.
  4. Limitation/Possible Reduction
    1. Term CANNOT be reduced.
    2. Tenure MAY, by law, be limited.  Thus, a provision which considers an elective office automatically vacated when the holder thereof files a certificate of candidacy for another elective office (except President and Vice-President) is valid, as it only affects the officers tenure and NOT his constitutional term.

Party-List Representatives

  1. Constitute 20% of the total number of representatives, including those under the party-list system (thus a maximum of 50 party-list members of the House)
  2. However, for 3 consecutive terms from 2 February 1987 (i.e., the 1987-92, 92-95 and 95-98 terms), 25 seats shall be allotted to sectoral representatives.  Under Art. XVIII, Sec. 7, the sectoral representatives are to be appointed by the President until legislation otherwise provides.
  3. Mechanics of the party-list system:
    1. Registered organizations submit a list of candidates in order of priority.
    2. During the elections, these organizations are voted for at large.
    3. The number of seats that each organization gets out of the 20% allotted to the system depends on the number of votes they get.
  4. Qualifications
  5. Natural born citizen of the Philippines
  6. At least 25 years of age on the day of the election
  7. Able to read and write

Sec. 9.  In case of vacancy in the Senate or in the House of Representatives, a special election may be called to fill such vacancy in the manner prescribed by law, but the Senator or Member of the House of Representatives thus elected shall serve only for the unexpired term.  

Sec. 10.  Salaries of Senators and Members of the House

Determination of Salaries:

Salaries of Senators and Members of the House of Representatives shall be determined by law.

Rule on increase in salaries:

No increase in their salaries shall take effect until after the EXPIRATION OF THE FULL TERM (NOT TENURE) OF ALL THE MEMBERS OF THE SENATE AND THE HOUSE OF REPRESENTATIVES APPROVING SUCH INCREASE.

Note: Since the Constitution ‘provides for rules on “salaries” and not on ‘emoluments,’ our distinguished legislators can appropriate for themselves other sums of money such as travel allowances, as well as other side ‘benefits.’

Sec. 11: CONGRESSIONAL IMMUNITIES

1.)    Immunity from arrest:

  1. Legislators are privileged from arrest while Congress is “in session” with respect to offenses punishable by up to 6 years of imprisonment.  Thus, whether Congress is in regular or special session, the immunity from arrest applies.
  2. If Congress is in recess, members thereof may be arrested.
  3. The immunity is only with respect to arrests and NOT to prosecution for criminal offenses.

2.)    Legislative privilege:

  1. No member shall be questioned or held liable in any forum other than his/her respective Congressional body for any debate or speech in the Congress or in any Committee thereof.
  2. Limitation on the privilege:

(i)                 Protection is only against forum other than Congress itself.  Thus for inflammatory remarks which are otherwise privileged, a member may be sanctioned by either the Senate or the House as the case may be.

(ii)               The ‘speech or debate’ must be made in performance of their duties as members of Congress.  This includes speeches delivered, statements made, votes cast, as well as bills introduced, and other activities done in performance of their official duties.

(iii)             Congress need NOT be in session when the utterance is made, as long as it forms part of ‘legislative action,’ i.e. part of the deliberative and communicative process used to participate in legislative proceedings in consideration of proposed legislation or with respect to other matters with Congress’ jurisdiction.

Sec. 12.  All Members of the Senate and the House of Representatives shall, upon assumption of office, make a full disclosure of their financial and business interests.  They shall notify the House concerned of a potential conflict of interest that may arise from the filing of a proposed legislation of which they are authors.

Sec. 13-14: CONGRESSIONAL DISQUALIFICATIONS:

Disqualifications:

DISQUALIFICATION                               

WHEN APPLICABLE

1. Senator/Member of the House cannot hold any other office or employment in the     Government or any subdivision, agency or Instrumentality thereof, including GOCCS or their subsidiaries.

During his term.  If he does so, he forfeits his seat.

2. Legislators cannot be appointed to any office.

IF the office was created or the emoluments thereof increased during the term for which he was elected.

3. Legislators cannot personally appear as counsel before any court of justice, electoral tribunal, quasi-judicial and    administrative bodies.

During his term of office.

4. Legislators cannot be financially interested directly or indirectly in any contract with or in any franchise, or special privilege granted by the Government, or any subdivision, agency or instrumentality thereof, including any GOCC or its subsidiary.

 During his term of office.

5. Legislators cannot intervene in any matter  before any office of the government.

When it is for his pecuniary benefit or where he may be called upon to act on account of his office.

 

Sec. 15: REGULAR AND SPECIAL SESSIONS

Regular Sessions:

1.)    Congress convenes once every year on the 4th Monday of July (unless otherwise provided for by law)

2.)    Continues in session for as long as it sees fit, until 30 days before the opening of the next regular session, excluding Saturdays, Sundays, and legal holidays.

Special Sessions:

Called by the President at any time when Congress is not in session.

Sec. 16.  Officers:

1.)    Senate President;

2.)    Speaker of the House; and

3.)    Each House may choose such other officers as it may deem necessary.

Election of Officers

By a majority vote of all respective members.

Quorum to do business:

  1. Majority of each House shall constitute a quorum.
  2. A smaller number may adjourn from day to day and may compel the attendance of absent members.
  3. In computing a quorum, members who are outside the country and thus outside of each House’s coercive jurisdiction are not included.

Internal Rules:

  1. Each House shall determine its own procedural rules.
  2. Since this is a power vested in Congress as part of its inherent powers, under the principle of separation of powers, the courts cannot intervene in the implementation of these rules insofar as they affect the members of Congress.
  3. Also, since Congress has the power to make these rules, it also has the power to ignore them when circumstances so require.

Discipline:

1.)    Suspension

  1. Concurrence of 2/3 of ALL its members and
  2. Shall not exceed 60 days.

2.)    Expulsion

  1. Concurrence of 2/3 of ALL its members.

Congressional Journals and Records:

1.)    The Journal is conclusive upon the courts.

2.)    BUT an enrolled bill prevails over the contents of the Journal.

3.)    An enrolled bill is the official copy of approved legislation and bears the certifications of the presiding officers of each House.  Thus where the certifications are valid and are not withdrawn, the contents of the enrolled bill are conclusive upon the courts as regards the provision of that particular bill.

Adjournments:

1.)    Neither House can adjourn for more than 3 days during the time Congress is in session without the consent of the other House.

2.)    Neither can they adjourn to any other place than that where the two houses are sitting, without the consent of the other.

Section 17: THE ELECTORAL TRIBUNAL

The Senate and the House shall each have an Electoral Tribunal which shall be composed of:

  1. 3 Supreme Court Justices to be designated by the Chief Justice; &
  2. 6 Members of the Senate or House, as the case may be.

The senior Justice in the Electoral Tribunal shall be its Chairman.

Note: The congressional members of the ET’s shall be chosen on the basis of proportional representation from the political parties and party-list organizations.

Jurisdiction:

1.)    Each ET shall be the sole judge of all CONTESTS relating to the election, returns, and qualifications of their respective members.  This includes determining the validity or invalidity of a proclamation declaring a particular candidate as the winner.

2.)    An ‘election contest’ is one where a defeated candidate challenges the qualification and claims for himself the seat of a proclaimed winner.

3.)    In the absence of an election contest, the ET is without jurisdiction.  However, the power of each House to expel its own members or even to defer their oath-taking until their qualifications are determined may still be exercised even without an election contest.

Issues regarding the Electoral Tribunals:

1.)    Since the ET’s are independent constitutional bodies, independent even of the House from which the members are respectively taken, neither Congress nor the Courts may interfere with procedural matters relating to the functions of the ET’s, such as the setting of deadlines or filing their election contests with the respective ETs.

2.)    The ETs being independent bodies, its members may not be arbitrarily removed from their positions in the tribunal by the parties which they represent.  Neither may they be removed for not voting according to party lines, since they are acting independently of Congress.

3.)    The mere fact that the members of either the Senate or the House sitting on the ET are those which are sought to be disqualified due to the filing of an election contest against them does not warrant all of them from being disqualified from sitting in the ET.  The Constitution is quite clear that the ET must act with both members from the SC and from the Senate or the House.  If all the legislator-members of the ET were to be disqualified, the ET would not be able to fulfill its constitutional functions.

4.)    Judicial review of decisions of the ETs may be had with the SC only insofar as the decision or resolution was rendered without or in excess of jurisdiction or with grave abuse of discretion constituting denial of due process.

Section 18: THE COMMISSION ON APPOINTMENTS

Composition:

1.)    Senate President as ex-officio chairman;

2.)    12 Senators; and

3.)    12 Members of the House.

Note: The 12 Senators and 12 Representatives are elected on the basis of proportional representation from the political parties and party-list organizations.

Voting/Action

1.)    The chairman shall only vote in case of a tie.

2.)    The CA shall act on all appointments within 30 session days from their submission to Congress.

3.)    The Commission shall rule by a majority vote of all the Members.

Jurisdiction

1.)    CA shall confirm the appointments by the President with respect to the following positions:

  1. Heads of the Executive Departments (except if it is the Vice-President who is appointed to the post).
  2. Ambassadors, other public ministers or consuls.
  3. Officers of the AFP from the rank of Colonel or Naval Captain: and
  4. Other officers whose appointments are vested in him by the Constitution (e.g. COMELEC members).

2.)    Congress CANNOT by law prescribe that the appointment of a person to an office created by such law shall be subject to confirmation by the CA.

3.)    Appointments extended by the President to the above-mentioned positions while Congress is not in session shall only be effective until disapproval by the CA or until the next adjournment of Congress.

Meetings of the CA

1.)    CA meets only while Congress is in session.

2.)    Meetings are held either at the call of the Chairman or a majority of all its members.

3.)    Since the CA is also an independent constitutional body, its rules of procedure are also outside the scope of congressional powers as well as that of the judiciary.

Note:  The ET and the CA shall be constituted within 30 days after the Senate and the House of Representative shall have been organized with the election of the President and the Speaker.

Sections 21-22: LEGISLATIVE INQUIRIES

Scope:

  1. Either House or any of their committees may conduct inquires ‘in aid of legislation’.
  2. “In aid of legislation” does not mean that there is pending legislation regarding the subject of the inquiry.  In fact, investigation may be needed for purposes of proposing future legislation.
  3. If the stated purpose of the investigation is to determine the existence of violations of the law, the investigation is no longer ‘in aid of legislation’ but ‘in aid of prosecution’.  This violates the principle of separation of powers and is beyond the scope of congressional powers.

Enforcement:

  1. Since experience has shown that mere requests for information does not usually work, Congress has the inherent power to punish recalcitrant witnesses for contempt, and may have them incarcerated until such time that they agree to testify.
  2. The continuance of such incarceration only subsists for the lifetime, or term, of such body.  Once the body ceases to exist after its final adjournment, the power to incarcerate ceases to exist as well.  Thus, each ‘Congress’ of the House lasts for only 3 years.  But if one is incarcerated by the Senate, it is indefinite because the Senate, with its staggered terms, is a continuing body.
  3. BUT, in order for a witness to be subject to this incarceration, the primary requirement is that the inquiry is within the scope of Congress’ powers. i.e. it is in aid of legislation.
  4. The materiality of a question is determined not by its connection to any actually pending legislation, but by its connection to the general scope of the inquiry.
  5. The power to punish for contempt is inherent in Congress and this power is sui generis.  It cannot be exercised by local government units unless they are expressly authorized to do so.

Limitations:

  1. The inquiry must be conducted in accordance with the ‘duly published rules of procedure’ of the House conducting the inquiry; and
  2. The rights of persons appearing in or affected by such inquiries shall be respected.  Ex. The right against self-incrimination.

Appearance by department heads before Congress:

  1. Since members of the executive department are co-equals with those of the legislative department, under the principle of separations of powers, department heads cannot be compelled to appear before Congress.  Neither may the department heads impose their appearance upon Congress.
  2. Department heads may appear before Congress in the following instances.
  3. Upon their own initiative, with the consent of the President (and that of the House concerned); or
  4. Upon the request of either House (which cannot compel them to attend)
  5. The appearance will be conducted in EXECUTIVE SESSION when:
  6. Required by the security of state or required by public interest; and
  7. When the President so states in writing

Sections 23-24.  DECLARATION OF WAR/EMERGENCY POWERS

Vote requirement:  (to declare the existence of a state of war)

  1. 2/3 of both Houses, in joint session
  2. Voting separately

Emergency powers:

  1. During times of war or other national emergency, Congress may, BY LAW, authorize the President to exercise powers necessary and proper to carry out a declared national policy.
  2. Limitations:
    1. Powers will be exercised for a limited period only; and
    2. Powers will be subject to restrictions prescribed by Congress
  3. Expiration of emergency powers
    1. By resolution of Congress or
    2. Upon the next adjournment of Congress

Sections 24-27, 30-31 LEGISLATION

Bills that must originate from the House of Representatives (Section 24)   

CODE: A R T Pu Lo P

  1. Appropriation bills
  2. Revenue bills
  3. Tariff bills
  4. Bills authorizing the increase ofpublic debt
  5. Bills oflocal application
  6. Private bills

Note:  The Senate may, however, propose or concur with amendments.

Appropriation bills

  1. The primary and specific aim of an appropriation bill is to appropriate a sum of money from the public treasury.
  2. Thus, a bill enacting the budget is an appropriations bill.
  3. BUT:  A bill creating a new office, and appropriating funds therefor is NOT an appropriation bill.

Revenue Bill

  1. A revenue bill is one specifically designed to raise money or revenue through imposition or levy.
  2. Thus, a bill introducing a new tax is a revenue bill, but a provision in, for instance, the Videogram Regulatory Board law imposing a tax on video rentals does not make the law a revenue bill.

Bills of local application

A bill of local application, such as one asking for the conversion of a municipality into a city, is deemed to have originated from the House provided that the bill of the House was filed prior to the filing of the bill in the Senate even if, in the end, the Senate approved its own version.

Limitations:

  1. For appropriation bills:
  2. Congress cannot increase the appropriations recommended by the President for the operation of the Government as specified in the budget.
  3. Each provision or enactment in the General Appropriations Bill must relate specifically to some particular appropriation therein and any such provision or enactment must be limited in its operation to the appropriation to which it relates.
  4. The procedure in approving appropriations for Congress shall strictly follow the procedure for approving appropriations for other departments and agencies.
  5. A special appropriations bill must specify the purpose for which it is intended and must be supported by funds actually available as certified by the National Treasurer or to be raised by a corresponding revenue proposal therein.
  6. Transfer of appropriations:
  7. Rule:  No law shall be passed authorizing any transfer of appropriations
  8. BUT the following may, BY LAW, be authorized to AUGMENT any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations

-          President

-          President of the Senate

-          Speaker of the House of Representatives

-          Chief of Justice of the Supreme Court

-          Heads of the Constitutional Commissions

  1. Discretionary funds appropriated for particular officials shall be:
    1. Disbursed only for public purposes;
    2. Should be supported by appropriate vouchers; and
    3. Subject to guidelines as may be prescribed by law.
  2. If Congress fails to pass General Appropriations Bill (GAB) by the end of any fiscal year:

i.  The GAB for the previous year is deemed reenacted

ii.  It will remain in full force and effect until the GAB is passed by Congress.

  1. For law granting tax exemption

It should be passed with the concurrence of a MAJORITY of ALL the members of Congress.

  1. For bills in general
  2. Every bill shall embrace only one (1) subject, as expressed in the title thereof

i.          As a mandatory requirement

ii.         The title does not have to be a complete catalogue of everything stated in the bill.  It is sufficient if the title expresses the general subject of the bill and all the provisions of the statute are germane to that general subject.

iii.        A bill which repeals legislation regarding the subject matter need not state in the title that it is repealing the latter.  Thus, a repealing clause in the bill is considered germane to the subject matter of the bill.

  1. Readings
  2. In order to become a law, each bill must pass three (3) readings in both Houses.
  3. General rule: Each reading shall be held on separate days & printed copies thereof in its final form shall be distributed to its Members three (3) days before its passage.
  4. Exception:  If a bill is certified as urgent by the President as to the necessity of its immediate enactment to meet a public calamity or emergency, the 3 readings can be held on the same day.
  5. First reading – only the title is read; the bill is passed to the proper committee

Second reading – Entire text is read and debates are held, and amendments introduced.

Third reading – only the title is read, no amendments are allowed.  Vote shall be taken immediately thereafter and the yeas and nays entered in the journal.

Veto power of President:

  1. Every bill, in order to become a law, must be presented to and signed by the President.
  2. If the President does not approve of the bill, he shall veto the same and return it with his objections to the House from which it originated.  The House shall enter the objections in the Journal and proceed to reconsider it.
  3. The President must communicate his decision to veto within 30 days from the date of receipt thereof.  If he fails to do so, the bill shall become a law as if he signed it.
  4. This rule eliminates the ‘pocket veto’ whereby the President would simply refuse to act on the bill.
  1. To OVERRIDE the veto, at least 2/3 of ALL the members of each House must agree to pass the bill.   In such case, the veto is overriden and becomes a law without need of presidential approval.
  2. Item veto
  3. The President may veto particular items in an appropriation, revenue or tariff bill.
  4. This veto will not affect items to which he does not object.
  5. Definition of item

TYPE OF BILL                                                        ITEM

1.  Revenue/tax bill                 Subject of the tax and the tax rate imposed thereon

2.  Appropriations bill             Indivisible sum dedicated to a stated purpose

  1. Veto of RIDER
  2. A rider is a provision which does not relate to a particular appropriation stated in the bill.
  3. Since it is an invalid provision under Section 25(2), the President may veto it as an item.

Specific limitations on legislation

  1. No law shall be enacted increasing the Supreme Court’s appellate jurisdiction without the SC’s advice and concurrence.
  2. No law shall be enacted granting titles of royalty or nobility.

Section 28.  POWER TO TAX

Limitations:

1)      The rule of taxation should be UNIFORM

2)      It should be EQUITABLE

3)      Congress should evolve a PROGRESSIVE system of taxation.

4)      The power to tax must be exercised for a public purpose because the power exists for the general welfare

5)      The due process and equal protection clauses of the Constitution should be observed.

Delegation of power to fix rates

1)      Congress may, BY LAW, authorize the President to fix the following:

a)      Tariff rates

b)      Import and Export Quotas

c)      Tonnage and wharfage dues

d)     Other duties and imposts

Within the framework of the national development program of the Government

2)      The exercise of such power by the President shall be within the specified limits fixed by Congress and subject to such limitations and restrictions as it may impose.

Constitutional tax exemptions:

1)      The following properties are exempt from REAL PROPERTY taxes

(CODE: Cha Chu M- CA)

a)      Charitable institutions

b)      Churches, and parsonages or convents appurtenant thereto

c)      Mosques

d)     Non-profit cemeteries; and

e)      All lands, buildings and improvements actually, directly and exclusively used for religious, charitable, or educational purposes.

2)      All revenues and assets of NON-STOCK NON-PROFIT EDUCATIONAL institutions are exempt from taxes and duties PROVIDED that such revenues and assets are actually, directly and exclusively used for educational purposes.  (Art. XIV Sec 4 (3))

3)      Grants, endowments, donations or contributions used actually, directly and exclusively for educational purposes shall be exempt from tax.  This is subject to conditions prescribed by law.  (Art. XIV. Sec 4 (4))

Section 29.  Power of the Purse

1)      No money shall be paid out of the National Treasury EXCEPT in pursuance of an appropriation made by law.

a)      This places the control of public funds in the hands of Congress.

b)      BUT:  This rule does not prohibit continuing appropriations. e.g. for debt servicing.  This is because the rule does not require yearly, or annual appropriation.

2)      Limitations.

a)      Appropriations must be for a PUBLIC PURPOSE

b)      Cannot appropriate public funds or property, directly or indirectly, in favor of

(i)                 Any sect, church, denomination, or sectarian institution or system of religion or

(ii)               Any priest, preacher, minister, or other religious teacher or dignitary as such.

EXCEPT if the priest, etc is assigned to:

-          the Armed Forces; or

-          any penal institution; or

-          government orphanage; or

-          leprosarium

c)      BUT the government is not prohibited from appropriating money for a valid secular purpose, even if it incidentally benefits a religion, e.g. appropriations for a national police force is valid even if the police also protects the safety of clergymen.

d)     ALSO, the temporary use of public property for religious purposes is valid, as long as the property is available for all religions

3)      Special Funds

a)      Money collected on a tax levied for a special purpose shall be treated as a special fund and paid out for such purpose only.

b)      Once the special purpose is fulfilled or abandoned, any balance shall be transferred to the general funds of the Government

Section 32.  INITIATIVE AND REFERENDUM

1)      Through the system of initiative and referendum, the people can directly propose and enact laws or approve or reject any act or law or part thereof passed by the Congress or local legislative body.

2)      Required Petition

a)      Should be signed by at least 10% of the total number of registered voters

b)      Every legislative district should be represented by at least 3% of the registered voters

c)      Petition should be registered

 

ARTICLE VII.  THE EXECUTIVE DEPARTMENT

Section 1.  EXECUTIVE POWER

Scope:

1)    Executive power is vested in the President of the Philippines.

2)    The scope of this power is set forth in Art. VII of the Constitution.  But this power is not limited to those set forth therein.  The SC, in Marcos v. Manglapus, referred to the RESIDUAL powers of the President as the Chief Executive of the country, which powers include others not set forth in the Constitution.  EXAMPLE:  The President is immune from suit and criminal prosecution while he is in office.

3)    Privilege of immunity from suit is personal to the President and may be invoked by him alone.  It may also be waived by the President, as when he himself files suit.

4)    BUT The President CANNOT dispose of state property unless authorized by law.

Section 2.  QUALIFICATIONS

1)    Natural-born citizen of the Philippines

2)    Registered voter;

3)    Able to read and write;

4)    At least 40 years old on the day of election

5)    Philippine resident for at least 10 years immediately preceding such election.

Note:  The Vice-President has the same qualifications & term of office as the President.  He is elected with & in the same manner as the President.  He may be removed from office in the same manner as the President.

Section 4.  MANNER OF ELECTION/ TERM OF OFFICE

Manner of Election

1)    The President and Vice-President shall be elected by direct vote of the people.

2)    Election returns for President and Vice-President, as duly certified by the proper Board of Canvassers shall be forwarded to Congress, directed to the Senate President.

3)    Not later than 30 days after the day of the election, the certificates shall be opened in the presence of both houses of Congress, assembled in joint public session.

4)    The Congress, after determining the authenticity and due execution of the certificates, shall canvass the votes.

5)    The person receiving the highest number of votes shall be proclaimed elected.

6)    In case of a tie between 2 or more candidates, one shall be chosen by a majority of ALL the members of both Houses, voting separately.  In case this results in a deadlock, the Senate President shall be the acting President until the deadlock is broken.

7)    The Supreme Court en banc shall act as the sole judge over all contests relating to the election, returns, and qualifications of the President or Vice-President and may promulgate its rules for the purpose.

Term of Office

1)    President

a)    6 years beginning at noon on 30 June immediately following the election and ending at noon on the same day 6 years later.

b)    Term limitation: Single term only; not eligible for any reelection.

c)    Any person who has succeeded as President, and served as such for more than 4 years shall NOT be qualified for election to the same office at any time.

2)    Vice-President:

a)    6 years, starting and ending the same time as the President.

b)    Term limitation: 2 successive terms.

c)    Voluntary renunciation of the office for any length of time is NOT an interruption in the continuity of service for the full term for which the Vice-President was elected.

Section 6.  SALARIES AND EMOLUMENTS

1)    Official salaries are determined by law.

2)    Salaries cannot be decreased during the TENURE of the President and the Vice-President.

3)    Increases take effect only after the expiration of the TERM of the incumbent during which the increase was approved.

4)    Prohibited from receiving any other emolument from the government or any other source during their TENURE

Sections 7-12, PRESIDENTIAL SUCCESSION

  1. Vacancies at the beginning of the term

VACANCY

SUCCESSOR

President-elect fails to qualify or to be chosen

VP-elect will be Acting President until someone is qualified/chosen as President.

President-elect dies or is permanently disabled.

VP becomes President.

Both President and VP-elect are not chosen or do not qualify or both die, or both become permanently disabled.

1.    Senate President or

2.    In case of his inability, the Speaker of the House shall act as President until a President or a VP shall have been chosen and qualified.

In case of death or disability of (1) and (2), Congress shall determine, by law, who will be the acting President.

2.  Vacancies after the office is initially filled:

VACANCY

SUCCESSOR

President dies, is permanently disabled, is impeached, or resigns.

Vice-President becomes President for the unexpired term.

Both President and Vice-President die, become permanently disabled, are impeached, or resign.

1.    Senate President or

2.    In case of his inability, the Speaker of the House shall act as President until the President or VP shall have been elected and qualif

3)    Vacancy in office of Vice-President during the term for which he was elected:

a)    President will nominate new VP from any member of either House of Congress.

b)    Nominee shall assume office upon confirmation by majority vote of ALL members of both Houses, voting separately.  (Nominee forfeits seat in Congress)

4)    Election of President and Vice-President after vacancy during tem

a)     Congress shall convene 3 days after the vacancy in the office of both the President and the VP, without need of a call.  The convening of Congress cannot be suspended.

b)     Within 7 days after convening, Congress shall enact a law calling for a special election to elect a President and a VP.  The special election cannot be postponed.

c)     The special election shall be held not earlier than 45 days not later than 60 days from the time of the enactment of the law.

d)     The 3 readings for the special law need not be held on separate days.

e)     The law shall be deemed enacted upon its approval on third reading.

BUT:  No special election shall be called if the vacancy occurs within 18 months before the date of the next presidential election.

5)    Temporary disability of the President:

The temporary inability of the President to discharge his duties may be raised in either of two ways:

a)    By the President himself, when he sends a written declaration to the Senate President and the Speaker of the House.  In this case, the Vice-President will be Acting President until the President transmits a written declaration to the contrary.

b)    When a majority of the Cabinet members transmit to the Senate President and the Speaker their written declaration.

(i)            The VP will immediately be Acting President.

(ii)           BUT:  If the President transmits a written declaration that he is not disabled, he reassumes his position.

(iii)          If within 5 days after the President re-assumes his position, the majority of the Cabinet retransmits their written declaration, Congress shall decide the issue.  In this event, Congress shall reconvene within 48 hours if it is not in session, without need of a call.

(iv)         Within 10 days after Congress is required to assemble, or 12 days if Congress is not in session, a 2/3 majority of both Houses, voting separately, is needed to find the President temporarily disabled, in which case, the VP will be Acting President.

6)    Presidential Illness:

a)    If the President is seriously ill, the public must be informed thereof.

b)    Even during such illness, the National Security Adviser, the Secretary of Foreign Affairs, and the Chief of Staff of the AFP are entitled to access to the President

Section 13.  DISQUALIFICATIONS

SUBJECT

SOURCE OF DISQUALIFICATION

President, Vice-President, Cabinet Members, Deputies or Assistants of Cabinet Members

Prohibited from:

1.    Holding any office or employment during their tenure, UNLESS:

1.    otherwise provided in the Constitution (e.g.  VP can be appointed a Cabinet Member, Sec. of Justice sits on Judicial and Bar Council); or

2.    the positions are ex-officio and they do not receive any salary or other emoluments therefor (e.g. Sec. of Finance is head of Monetary Board).

1.    Practicing, directly or indirectly, any other profession during their tenure;

1.    Participating in any business;

1.    Being financially interested in any contract with, or in any franchise, or special privilege granted by the government or any subdivision, agency or instrumentality thereof, including GOCC’s or their subsidiaries.

N.B.  The rule on disqualifications for the President and his Cabinet are stricter than the normal rules applicable to appointive and elective officers under Art. IX-B, Sec. 7.

Spouses and 4th degree relatives of the President (consanguinity or affinity)

Cannot be appointed during President’s tenure as:

1.    Members of the Constitutional Commissions;

2.    Office of the Ombudsman;

3.    Department Secretaries;

4.    Department under-secretaries;

5.    Chairman or heads of bureaus or offices including GOCC’s and their subsidiaries.

N.B.

1.    If the spouse, etc., was already in any of the above offices at the time before his/her spouse became President, he/she may continue in office.  What is prohibited is appointment and reappointment, NOT continuation in office.

2.    Spouses, etc., can be appointed to the judiciary and as ambassadors and consuls.

Sections 14-16.  POWER TO APPOINT

Principles:

1)     Since the power to appoint is executive in nature, Congress cannot usurp this function.

2)     While Congress (and the Constitution in certain cases) may prescribe the qualifications for particular offices, the determination of who among those who are qualified will be appointed is the President’s prerogative.

Scope:

The President shall appoint the following:

1)    Heads of executive departments (CA confirmation needed):

2)    Ambassadors, other public ministers, and consuls (CA confirmation needed).

3)    Officers of AFP from rank of colonel or naval captain (CA confirmation needed).

4)    Other officers whose appointment is vested in him by the Constitution (CA confirmation needed), such as:

a)    Chairmen and members of the COMELEC, COA and CSC.

b)    Regular members of the Judicial and Bar Council.

c)    The Ombudsman and his deputies;

d)    Sectoral representatives in Congress.

  • B. President also appoints members of the Supreme Court and judges of the lower courts, but these appointments do not need CA confirmation.

5)    All other officers whose appointments are not otherwise provided for by law; and those whom he may be authorized by law to appoint.

a)     This includes the Chairman and members of the Commission on Human Rights, whose appointments are provided for by law NOT by the Constitution.

b)     Congress may, by law, vest the appointment of other officers lower in rank in the President alone or in the courts, or in the heads of departments, agencies, boards or commissions.

c)     BUT:  Congress cannot, by law, require CA confirmation of the appointment of other officers for offices created subsequent to the 1987 Constitution (e.g. NLRC Commissioners, Bangko Sentral Governor).

d)      ALSO: Voluntary submission by the President to the CA for confirmation of an appointment which is not required to be confirmed does not vest the CA with jurisdiction.  The President cannot extend the scope of the CA’s power as provided for in the Constitution.

Procedure:

1)    CA confirmation needed:

a)    Nomination by President

b)    Confirmation by CA

c)    Appointment by President; and

d)    Acceptance by appointee.

Note:  At any time before all four steps have been complied with, the President can withdraw the nomination/appointment.

2)    No CA confirmation:

a)    Appointment; and

b)    Acceptance.

Note:  Once appointee accepts, President can no longer withdraw the appointment.

Ad-interim appointments:

1)    When Congress is in recess, the President may still appoint officers to positions subject to CA confirmation.

2)    These appointments are effective immediately, but are only effective until they are disapproved by the CA or until the next adjournment of Congress.

3)    Appointments to fill an office in an ‘acting’ capacity are NOT ad-interim in nature and need no CA approval.

Appointments by an Acting President:

These shall remain effective UNLESS revoked by the elected President within 90 days from his assumption or re-assumption of office.

Limitation

1)    2 months immediately before the next Presidential elections, and up to the end of his term, the President or Acting President SHALL NOT make appointments.  This is to prevent the practice of ‘midnight appointments.”

2)    EXCEPTION:

a)    Can make TEMPORARY APPOINTMENTS

b)    To fill EXECUTIVE POSITIONS;

c)    If continued vacancies therein will prejudice public service or endanger public safety.

Section 17.  Power of Control and Supervision

Power of Control:

The power of an officer to alter, modify, or set aside what a subordinate officer has done in the performance of his duties, and to substitute the judgment of the officer for that of his subordinate.  Thus, the President exercises control over all the executive departments, bureaus, and offices.

The President’s power over government-owned corporations comes not from the Constitution but from statute.  Hence, it may be taken away by statute.

Qualified Political Agency:

1)    Since all executive and administrative organizations are adjuncts of the Executive Department, the heads of such departments, etc. are assistants and agents of the President.

2)    Thus, generally the acts of these department heads, etc, which are performed and promulgated in the regular course of business, are presumptively the acts of the President.

3)    Exception:  If the acts are disapproved or reprobated by the President.

4)    Under Administrative Law, decisions of Department Secretaries need not be appealed to the President in order to comply with the requirement of exhaustion of administrative remedies.

5)    Qualified political agency does NOT apply if the President is required to act in person by law or by the Constitution.  Example:  The power to grant pardons must be exercised personally by the President.

Disciplinary Powers:

1)    The power of the President to discipline officers flows from the power to appoint the, and NOT from the power control.

2)    BUT While the President may remove from office those who are not entitled to security of tenure, or those officers with no set terms, such as Department Heads, the officers, and employees entitled to security of tenure cannot be summarily removed from office.

Power of Supervision:

1)    This is the power of a superior officer to ensure that the laws are faithfully executed by subordinates.

2)    The power of the president over local government units is only of general supervision.  Thus, he can only interfere with the actions of their executive heads if these are contrary to law.

3)    The execution of laws is an OBLIGATION of the President.  He cannot suspend the operation of laws.

4)    The power of supervision does not include the power of control; but the power of control necessarily includes the power of supervision.

Section 18.  COMMANDER-IN-CHIEF POWERS

Scope:

1)    The President is the Commander-in-Chief of the Armed Forces.

2)    Whenever necessary, the President may call out the AFP to PREVENT or SUPPRESS:

a)    Lawless violence;

b)    Invasion; or

c)    Rebellion.

3)    The President may also:

a)    Suspend the privilege of the writ of habeas corpus; and

b)    Proclaim a state of martial law.

Suspension of the privilege of the writ of habeas corpus and declaring martial law;

  1. Grounds
  2. Invasion or
  3. Rebellion; and
  4. Public safety requires it.
  5. The invasion or rebellion must be ACTUAL and not merely imminent.
  6. Limitations:
  7. Suspension or proclamation is effective for only 60 days.
  8. Within 48 hours from the declaration or suspension, the President must submit a report to Congress.
  9. Congress, by majority vote and voting jointly, may revoke the same, and the President cannot set aside the revocation.
  10. In the same manner, at the President’s initiative, Congress can extend the same for a period determined by Congress if:

i.  Invasion or rebellion persist and

ii.  Public safety requires it.

NOTE:  Congress CANNOT extend the period motu propio.

  1. Supreme Court review:

i.  The appropriate proceeding can be filed by any citizen.

ii.  The SC can review the FACTUAL BASIS of the proclamation or suspension.

iii.  Decision is promulgated within 30 days from filing.

  1. Martial Law does NOT:

i.  Suspend the operation of the Constitution.

ii.  Supplant the functioning of the civil courts or legislative assemblies.

iii.  Authorize conferment of jurisdiction on military courts over civilians where civil courts are able to function and

iv.  Automatically suspend the privilege of the writ.

  1. Suspension of privilege of the writ:

i.  Applies ONLY to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion.

ii.  Anyone arrested or detained during suspension must be charged within 3 days.  Otherwise he should be released.

Note:  While the suspension of the privilege of writ and the proclamation of martial law is subject to judicial review, the actual use by the President of the armed forces is not.  Thus, troop deployments in times of war is subject to the President’s judgment and discretion.

Section 19: EXECUTIVE CLEMENCY

Scope:

1.)    The President may grant the following: [ Pa R C Re]

  1. Pardons (conditional or plenary)
  2. Reprieves
  3. Commutations
  4. Remittance of fines and forfeitures

2.)    These may only be granted AFTER conviction by final judgment.

3.)    ALSO: The power to grant clemency includes cases involving administrative penalties.

4.)    Where a conditional pardon is granted, the determination of whether it has been violated rests with the President.

Limitations:

1.)    As to scope:

Cannot be granted:

a.)    Before conviction

b.)    In cases of impeachment

c.)    For violations of election laws, rules, and regulation without the favorable recommendation of the COMELEC

d.)    In cases of civil or legislative contempt

2.)    As to effect:

a.)    Does not absolve civil liabilities for an offense.

b.)    Does not restore public offices already forfeited, although eligibility for the same may be restored.

Amnesty:

1.)    An act of grace concurred in by Congress, usually extended to groups of persons who commit political offenses, which puts into oblivion the offense itself.

2.)    President alone CANNOT grant amnesty.  Amnesty needs concurrence by a majority of all the members of Congress.

3.)    When a person applies for amnesty, he must admit his guilt of the offense which is subject to such amnesty.  If his application is denied, he can be convicted based on this admission of guilt.

4.)    Amnesty V. Pardon

AMNESTY

PARDON

Addressed to POLITICAL offenses

Addressed to ORDINARY offenses

Granted to a CLASS of persons

Granted to INDIVIDUALS

Need not be accepted

Must be accepted

Requires concurrence of majority of all members of Congress

No need for Congressional concurrence

A public act. Subject to judicial notice

Private act of President. It must be proved.

Extinguishes the offense itself

Only penalties are extinguished.

May or may not restore political rights. Absolute pardon restores. Conditional does not.

Civil indemnity is not extinguished.

May be granted before or after conviction

Only granted after conviction by final judgement

Section 20. Power to Contract or Guarantee Foreign Loans

Limitations:

(1) The President may contract or guarantee foreign loans on behalf of the Republic of the Philippines with the prior concurrence of the Monetary Board; and

(2) Subject to such limitations as may be provided by law.

Section 21. Foreign Relations Powers include:

(1)  Power to negotiate treaties and other international agreements

(a)  BUT: Such treaty of international agreement must be concurred in by at least 2/3 of all Senators in order to be valid and effective in our country.

(b)  Options of Senate when a treaty is submitted for its approval:

(i)                 Approve with 2/3 majority;

(ii)               Disapprove outright; or

(iii)             Approve conditionally, with suggested amendments.

(c)  If treaty is not re-negotiated, no treaty

(d)  If treaty is re-negotiated and the Senate’s suggestions are incorporated, the treaty will go into effect without need of further Senate approval.

Note:  While our municipal law makes a distinction between international agreements and executive agreements, with the former requiring Senate approval and the latter not needing the same, under international law, there is no such distinction.

Note: The President cannot, by executive agreement, undertake an obligation which indirectly circumvents a legal prohibition.

(e)  Conflict between treaty and municipal law.

(i)  Philippine court:

The later enactment will prevail, be it treaty or law, as it is the latest expression of the State’s will.

(ii)  International tribunal

Treaty will always prevail.  A State cannot plead its municipal law to justify noncompliance with an international obligation.

(2)  Power to appoint ambassadors, other public ministers, and consuls.

(3) Power to receive ambassadors and other public ministers accredited to the Philippines.

(4)  Power to contract and guarantee foreign loans on behalf of the Republic

(5)  Power to deport aliens

(a)    This power is vested in the President by virtue of his office, subject only to restrictions as may be provided by legislation as regards the grounds for deportation.

(b)   In the absence of any legislative restriction to authority, the President may still exercise this power.

(c)    The power to deport aliens is limited by the requirements of due process, which entitles the alien to a full and fair hearing.

BUT:    The alien is not entitled to bail as a matter of right.

 

 

ARTICLE VIII. THE JUDICIAL DEPARTMENT

Sec. 1.  JUDICIAL POWER

Scope:

1. Judicial power is the authority to settle justiciable controversies or disputes involving rights that are enforceable and demandable before the courts of justice or the redress of wrongs for violations of such rights.

2.  Vested in the Supreme Court and such lower courts as may be established by law.

3. Since the courts are given ‘judicial power’ and nothing more, courts may neither attempt to assume or be compelled to perform non-judicial functions.  They may not be charged with administrative functions except when reasonably incidental to the fulfillment of their duties.

4.  In order that courts may exercise this power, there must exist the following:

  1. An actual controversy with legally demandable and enforceable rights;
  2. Involving real parties in interest;
  3. The exercise of such power will bind the parties by virtue of the court’s application of existing laws.

5.  Judicial power cannot be exercised in vacuum.  Without any laws from which rights arise and which are violated, there can be no recourse to the courts.

6.  The courts cannot be asked for advisory opinions.

7.  Judicial power includes:

  1. The duty of the courts to settle actual controversies involving rights which are legally demandable and enforceable; and
  2. To determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government.

Political Questions:

1.  A ‘political question’ is one the resolution of which has been vested by the Constitution exclusively in either the people, in the exercise of their sovereign capacity, or in which full discretionary authority has been delegated to a co-equal branch of the Government.

2.  Thus, while courts can determine questions of legality with respect to governmental action, they cannot review government policy and the wisdom thereof, for these questions have been vested by the Constitution in the Executive and Legislative Departments.

Sec. 2.  ROLES OF CONGRESS

1.  Defining enforceable and demandable rights and prescribing remedies for violations of such rights; and

2.  Determining the court with jurisdiction to hear and decide controversies or disputes arising from legal rights.

3.  Thus, Congress has the power to define, prescribe and apportion the jurisdiction of various courts.

  1. BUT, Congress cannot deprive the Supreme Court of its jurisdiction over cases provided for in the Constitution.
  2. Creation and abolition of courts:
    1. The power to create courts implies the power to abolish and even re-organize courts.
    2. BUT this power cannot be exercised in a manner which would undermine the security of tenure of the judiciary.
    3. If the abolition/re-organization is done in good faith and not for political or personal reasons, then it is VALID.  (same rule applies for civil servants)

Sec. 3.  FISCAL AUTONOMY

  1. The entire judiciary shall enjoy fiscal autonomy.
  2. Annual appropriations for the judiciary cannot be reduced below the amount appropriated for the previous year.
  3. Once approved, appropriations shall be automatically and regularly released.

Secs. 4-7; 12 JUDICIARY

Composition of the Supreme Court:

  1. Chief Justice and
  2. 14 Associate Justices

Note:  Members of the Supreme Court and of other courts established by law shall not be designated to any agency performing quasi-judicial or administrative functions.

Qualifications of members of the SC:

1.  Natural born citizen of the Philippines

2.  At least 40 years old

3.  At least 15 years of experience as a judge or in the practice of law in the Philippines

4.  Person of proven competence, integrity, probity and independence.

Qualifications of members of lower collegiate courts (CA, CTA, Sandiganbayan)

1.  Natural born citizen of the Philippines

2.  Member of the Philippine bar

3.  Possesses other qualifications prescribed by Congress

4.  Person of proven competence, integrity, probity and independence.

Qualifications of judges of lower non-collegiate courts:

1.  Citizen of the Philippines (may be a naturalized citizen)

2.  Member of the Philippine Bar

3.  Possesses other qualifications prescribed by Congress

4.  Person of proven competence, integrity, probity and independence.

Section 8.  JUDICIAL AND BAR COUNCIL

1.  The Judicial and Bar Council is under the supervision of the SC.

A.  Is under the supervision of the Supreme Court and is composed of:

  1. Chief Justice, as ex-officio chairman
  2. Secretary of Justice, as an ex-officio member
  3. Representative of Congress, as an ex-officio member
  4. Representative of the Integrated Bar
  5. A professor of law
  6. A retired member of the SC; and
  7. Private sector representative

Note:  The last four re the regular members of the JBC.  Regular members are appointed by the President with CA approval.  Regular members serve for 4 years, with staggered terms.

B.  Functions of JBC

  1. Principal function:  recommend appointees to the Judiciary
  2. Exercise such other functions as the SC may assign to it.

C.  Appointments to the Judiciary  

  1. President shall appoint from a list of at least 3 nominees for each vacancy, as prepared by the JBC.
  2. No CA confirmation is needed for appointments to the Judiciary.
  3. Vacancies in SC should be filled within 90 days from the occurrence of the vacancy.
  4. Vacancies in lower courts should be filled within 90 days from submission to the President of the JBC list.

Sec. 10.  SALARIES

1.  Salaries of SC Justices and judges of lower courts shall be fixed by law.

2.  Cannot be decreased during their continuance in office, but can be increased.

3.  Members of the Judiciary are NOT exempt from payment of income tax.

Sec. 11.  TENURE/DISCIPLINARY POWERS OF SC

1.  Members of the SC and judges of the lower courts hold office during good behavior until

a.  The age of 70 years old; or

b.  They become incapacitated to discharge their duties.

2.  Disciplinary action against judges of lower courts:

a.  Only the SC en banc has jurisdiction to discipline or dismiss judges of lower courts.

b.  Disciplinary action/dismissal:  Majority vote of SC Justices who took part in the deliberations and voted therein.

3.  Removal of SC Justices:

a.  Only by IMPEACHMENT.

b.  Cannot be disbarred while they hold office.

Secs. 4-6, 13.  THE SUPREME COURT

Hearing of cases:

  1. En banc; or
  2. Divisions of 3, 5, or 7.

Cases required to be heard en banc:

1.  All cases involving constitutionality of a/an:

a.  Treaty

b.  International or executive agreement or

c.  Law.

2.  All cases required to be heard en banc under the Rules of Court:

a.  Appeals from Sandiganbayan; and

b.  From the Constitutional Commissions

3.  All cases involving the constitutionality, application or operation of

a.  Presidential decrees

b.  Proclamations

c.  Orders

d.  Instructions

e.  Ordinances; and

f.   Other regulations.

4.  Cases heard by a division where required majority of 3 was not obtained.

5.  Cases where SC modifies or reverses a doctrine or principle of law laid down by the SC en banc or by a division.

6.  Administrative cases to discipline or dismiss judges of lower courts; and

7.  Election contests for President and Vice-President.

Cases heard by division

1.  Must be decided with the concurrence of a majority of the members who took part in the deliberations and voted thereon.

2.  Majority vote in a division should be at least 3 members.

Powers of the SC

1.  SC has ORIGINAL jurisdiction over

a.  Cases affecting ambassadors, other public ministers and consuls.

Note:  This refers to foreign ambassadors, etc., stationed in the Philippines.

b.  Petitions for certiorari, prohibiton, mandamus, quo warranto, and habeas corpus.

2.  SC has APPELLATE jurisdiction over final judgments and orders in the following:

a.  All cases involving the constitutionality or validity of any

  1. treaty
  2. international or executive agreement
  3. law
  4. presidential decree
  5. proclamation
  6. order
  7. instruction
  8. ordinance, or
  9. regulation;

b.  All cases involving the legality of any

  1. tax
  2. impost
  3. assessment or
  4. toll or
  5. any penalty imposed in relation thereto;

c.  All cases in which the jurisdiction of any lower court is in issue

d. Criminal cases where the penalty imposed is reclusion perpetua or higher; and

e.  All cases where ONLY errors or questions of law are involved.

3.  Temporarily assign lower court judges to other stations in the public interest.

Note:  Temporary assignment shall not exceed 6 months without the consent of the judge concerned.

4.  Order a change of venue or place of trial to avoid a miscarriage of justice.

5.  Promulgate rules concerning:

a.  The protection and enforcement of constitutional rights;

b.  Pleading, practice and procedure in all courts;

c.  Admission to the practice of law;

d.  The Integrated Bar; and

e.  Legal assistance to the underprivileged.

Limitations on Rule Making Power

a. It should provide a simplified and inexpensive procedure for the speedy disposition of cases.

b.  It should be uniform for all courts of the same grade.

c.  It should not diminish, increase, or modify substantive rights.

6.  Appoint ALL officials and employees of the Judiciary, in accordance with Civil Service Law.

7. Exercise administrative supervision over ALL courts and the personnel thereof.

Decisions of the Supreme Court:

1. Reached in consultation before being assigned to a member for the writing of the opinion.

2. A certification to this effect must be signed by the Chief Justice and attached to the record of the case and served upon the parties.

3. Members of the SC who took no part, or who dissented or abstained must state the reasons therefore.

Note:  This procedure shall also be observed by all lower collegiate courts (CA, CTA, and theSandiganbayan).

JUDICIAL REVIEW

Definition

1.  Judicial Review is the power of the SC to declare a law, treaty, ordinance etc. unconstitutional.

2.    Lower courts may also exercise the power of judicial review, subject to the appellate jurisdiction of the SC.

3.   Only SC decisions are precedent, and thus, only SC decisions are binding on all.

Requisites                                            Code:   [A R S Co R]

1.  An ACTUAL CASE calling for the exercise of judicial power

2.  The question involved must be RIPE FOR ADJUDICATION, i.e. the government act must have had an adverse effect on the person challenging it.

3.  The person challenging the governmental act must have ‘STANDING’, i.e. a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement.

4.  The question of Constitutionality must be raised in the first instance, or at the earliest opportunity.

5.  Resolution of the issue of constitutionality is unavoidable or is the very lis mota.

Effect of a declaration of unconstitutionality:

1.  Prior to the declaration that a particular law is unconstitutional, it is considered as an ‘operative fact’ which at that time had to be complied with.

2.  Thus, vested rights may have been acquired under such law before it was declared unconstitutional.

3. These rights are not prejudiced by the subsequent declaration that the law is unconstitutional.

Sec. 14.  DECISIONS

1.  Decisions MUST state clearly and distinctly the facts and the law on which it is based.

2.  Refusal to give due course to petitions for review and motions for reconsideration must state the legal basis for such refusal.

3.  Memorandum decisions, where the appellate court adopts the findings of fact and law of the lower court, are allowed as long as the decision adopted by reference is attached to the Memorandum for easy reference.

4.  These rules only apply to courts.  They do not apply to quasi-judicial or administrative bodies nor to military tribunals.

ARTICLE IX – THE CONSTITUTIONAL COMMISSIONS

Section 1.   Constitutional Commissions

Independent Constitutional Commissions:

1) Civil Service Commission (CSC)

2) Commission on Elections (COMELEC)

3) Commission on Audit (COA)

Why Independent?

They perform vital functions of government.  Their integrity is protected by the fact that they:

1) Are constitutionally created (Sec. 1)

2) Have independent powers of appointment (Sec. 4)

3) Each Commission may promulgate its own procedural rules (Sec. 6)

4) Fiscal autonomy (Sec. 5)

5) Salaries may not be diminished during their office (Sec. 3)

6) Commissioners have a fixed term

7) Commissioners are removable by impeachment only.

Section 2.  DISQUALIFICATIONS

Disqualifications:

Members cannot, during their tenure:

1) Hold any other office or employment;

2) Engage in the practice of any profession;

3) Engage in the active management or control of any business, which, in any   way, may be affected by the functions of their office; and

4) Be financially interested, direct or indirect, in any contract, franchise, privilege granted by the government, any of its subdivisions, agencies, instrumentalities, including GOCC’s and their subsidiaries.

Note:  The Ombudsman and his deputies are subject to the same qualifications.

 Section 3.  SALARIES

Salaries

1) Salaries are fixed by law and shall not be decreased during their TENURE.

2) Decreases in salaries only affect those members appointed AFTER increase.

3) Incumbent members do not lose any salary.

4) Increases take effect IMMEDIATELY.

Section 6.  RULES OF PROCEDURE

Procedures:

1) Rules:  The Commissions may promulgate its own rules EN BANC.

2) Limitation:  It shall not:

a) Diminish,

b) Increase, or

c) Modify substantive rights.

3) Power of SC

a). The SC may not, under Art. VIII Sec. 5(5), exercise the power to disapprove rules of “special courts and quasi-judicial  bodies.”

b). In proceedings before the Commissions, the rules of the Commission prevail.

c). In proceedings before a court, the Rules of Court prevail.

d). The SC may, however, in appropriate cases, exercise JUDICIAL REVIEW

Section 7.  DECISION MAKING/APPEAL

Decision-Making:

1) Each commission shall decide matter or cases by a majority vote of all the members within 60 days from submission.

  • COMELEC may sit en banc or in 2 divisions.
  • Election cases, including pre-proclamation controversies are decided in division, with motions for reconsideration filed to the COMELEC en banc.
  • The SC has held that a majority decision decided by a division of the COMELEC is a valid decision.

2) As COLLEGIAL BODIES, each commission must act as one, and no one member can decide a case for the entire commission.  (i.e.  The Chairman cannot ratify a decision which would otherwise have been void).

Appeals:

1) Decisions, orders or rulings of the COMELEC/COA may be brought on certiorari to  the SC under Rule 65.

2) Decisions, orders or ruling of the CSC should be appealed to the CA under Rule 43.

Enforcement:

  • It has been held that the CSC can issue a writ of execution to enforce judgments which are final.
THE CIVIL SERVICE COMMISSION

Section 1.  COMPOSITION/QUALIFICATIONS/TERM

Composition:

1) Chairman

2) Commissioners – 2 commissioners

Qualifications:

1) Natural-born citizens of the Philippines;

2) At least 35 years old at the time of their appointments;

3) With proven capacity for public administration; and

4) NOT candidates for any elective position in the elections immediately preceding their appointment.

5) Appointees by the President to the CSC need Commission on Appointments (CA) confirmation

Term:

1) Chairman -7 years; Commissioner1 – 5 yrs; Commissioner2 – 3 yrs

2) Limitation:  single term only, no reappointment

3) Appointment to vacancy: only for unexpired term of predecessor

4) No temporary appointments, or appointments in acting capacity.

Section 2.   Scope:

The Civil Service embraces all:

A.  branches,

B.  subdivisions,

C.  instrumentalities,

D.  agencies of the government,

E.  including GOCCs with original charters.

1.”With Original Charter” means that the GOCC was created by special law/by Congress

2. If incorporated under the Corporation Code, it does not fall within the Civil Service, and is not subject to the CSC jurisdiction.

3. Even if once government-controlled, then becomes privatized, ceases to fall under CSC.

4. Jurisdiction is determined as of the time of filing the complaint.

Appointments to civil service shall be:

A. Competitive positions

  • According to merit and fitness to be determined by competitive examinations, as far as practicable except to positions which are policy-determining, primarily confidential, or highly technical.

B. Non-competitive positions

1). No need for competitive examinations.

2). 3 kinds

a) Policy-determining –           formulate a method of action for the gov’t

b) Primarily confidential –      more than ordinary confidence; close intimacy insures freedom of intercourse without betrayals of personal trust…

c) Highly technical     –           requires technical skill to a superior degree.

C. The TEST to determine whether non/competitive is the Nature of the responsibilities, NOT the administrative or legislative description given to it.

D. Both types of positions are entitled to security of tenure. They only differ in the MANNER in which they are filled.

E. Who may be appointed:

1). RULE:  Whoever fulfills all the qualifications prescribed by law for a particular position may be appointed therein.

2). The CSC cannot disapprove an appointment just because another person is better qualified, as long as the appointee is himself qualified.

3). The CSC CANNOT add qualifications other than those provided by law.

F. Next-In-Rank Rule

  • While a person next in rank is entitled to preferential consideration, it does not follow that only he, and no one else, can be appointed.  Such person has no vested right to the position and the appointing authority is not bound to appoint the person next in rank.

Tenure (Classification of Positions)

Career Service

Non-Career Service

1. Entrance based on merit and fitness to be determined as far as practicable by competitive examinations or based on highly technical qualifications.

1. Entrance on bases OTHER than usual tests of merit and fitness.

2. Entitled to security of tenure

1.    Tenure limited to:

a)      Period specified by law,

b)      Coterminous with the appointing authority or subject to his pleasure, or

c)      Limited to the duration of a particular project for which purpose the employment was made.

3. With opportunity for advancement to higher career positions.

 

Security of Tenure:

1) Officers or employees of the Civil Service cannot be removed or suspended EXCEPT for cause provided by law. It guarantees both procedural and substantive due process.

2) For “LEGAL CAUSE” – Cause is:

a). related to and affects the administration of office, and

b). must be substantial (directly affects the rights & interests of the public)

3) Security of tenure for Non-competitive positions

a). Primarily confidential officers and employees hold office only for so long as confidence in them remains.

b). If there is GENUINE loss of confidence, there is no removal, but the expiration of the term of office

c). Non-career service officers and employees do not enjoy security of tenure.

d). Political appointees in the foreign service possess tenure coterminous with  that of the appointing authority or subject to his pleasure.

4) One must be VALIDLY APPOINTED to enjoy security of tenure. Thus, one who is not  appointed by the proper appointing authority does not acquire security of tenure.

Abolition of Office

To be valid, abolition must be made:

(a) In good faith;  (good faith is presumed)

(b) Not for political or personal reasons; and

(c) Not in violation of law

Temporary employees are covered by the following rules:

1). Not protected by security of tenure – can be removed anytime even without cause

2). If they are separated, this is considered an expiration of his term.

3). BUT:  They can only be removed by the one who appointed them.

4). Entitled only to such protection as may be provided by law.

No officer or employee in the Civil Service shall engage in any electioneering or in partisan political activity

1) Cannot solicit votes in favor of a particular candidate.

2) Cannot give campaign contributions or distribute campaign materials.

3) BUT:  Allowed to express views on political issues, and to mention the names of the candidates whom he supports.

4) Prohibition does not apply to department secretaries

Right to organize

The right to organize does NOT include the right to strike

Sections 6-7.  DISQUALIFICATION

Disqualifications

1) Losing candidates in any election

a). Cannot be appointed to any office in the government or GOCC’s or their subsidiaries.

b). Period of disqualification: One (1) year after such election.

2) Elective officials

a). Not eligible for appointment or designation ANY CAPACITY to ANY PUBLIC OFFICE or position during their tenure.

b). EXCEPTION:  May hold ex officio positions.

  • Examples:
    • The Vice President may be appointed Cabinet member
    • Congressman may sit in the Judicial and Bar Council

c). To be eligible to hold any other office, the elected official must first resign his office

d). Even Congress cannot, by law, authorize the appointment of an elective official.

3). Appointive officials

a). Cannot hold any other office or employment in the government, any subdivision, agency, instrumentality, including GOCC’s and their subsidiaries.

b). EXCEPTION:  Unless otherwise allowed by law, or by the primary functions of his position.

c). This exception DOES NOT APPLY to Cabinet members, and those officers mentioned in Art. VII, Sec. 13.  They are governed by the stricter prohibitions contained therein.

Section 8. COMPENSATION

1) Prohibitions:  applies to elected or appointed officers and employees                     

Cannot receive:

A. Additional   -  an extra reward given for the same office i.e. bonus

B. Double  -  when an officer is given 2 sets of compensation for 2 different offices held concurrently by 1 officer

C. Indirect Compensation

2) EXCEPTION:  Unless specifically authorized by law

A. “SPECIFICALLY AUTHORIZED” means a specific authority particularly directed to the             officer or employee concerned.

B. BUT: per diems and allowances given as REIMBURSEMENT for expenses actually incurred are not prohibited

3) Cannot accept any present, emolument, office, title of any kind from foreign governments UNLESS with the consent of Congress.

4) Pensions and gratuities are NOT considered as additional, double, or indirect compensation.

THE COMMISSION ON ELECTIONS

Section 1.  COMPOSITION/QUALIFICATIONS/TERM

Composition: (7)

1) Chairman and

2) Commissioners (6)

Qualifications:

1) Natural-born citizens of the Philippines;

2) At least 35 years old at the time of appointment

3) Holders of college degrees; and

4) Not candidates for any elective position in the immediately preceding elections.

5) Majority of the Commission, including the Chairman must be:

a). Members of the Philippines Bar

b). Engaged in the practice of law for at least 10 years: “any activity in or out of court, which requires the application of law, legal procedure, knowledge, training and experience.”

6) Appointments subject to CA approval

Term:

1) Chairman -7 yrs; 3 Members – 7 yrs; 2 Members – 5 yrs; 1 Member – 3 yrs.

2) LIMITATION:  Single term only: no reappointment allowed

3) Appointment to a vacancy: only for unexpired portion of predecessor’s term

4) No temporary appointments, or appointments in acting capacity

a). Thus, the President cannot designate an incumbent commissioner as acting Chairman.

b). The choice of temporary chairman falls under the COMELEC’s discretion.

Section 2. POWERS AND FUNCTIONS

Powers:

1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall.

(a)    Ex: COMELEC can enjoin construction of public works within 45 days of an election.

1)      Exercise:

A. Exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all elective

1. Regional,

2. Provincial, and

3. City officials

B. Appellate jurisdiction over all contests involving:

1. Elective municipal officials decided by trial courts of general jurisdiction

2. Elective barangay officials decided by trial courts of limited jurisdiction.

C. Decisions, final orders, or rulings of the Commission on election contests involving elective municipal and barangay offices shall be final, executory, and not appealable.

Exception: Appealable to the SC on questions of law.

  1. Contempt powers

1. COMELEC can exercise this power only in relation to its adjudicatory or quasi-judicial functions.  It CANNOT exercise this in connection with its purely executive or ministerial functions.

2. If it is a pre-proclamation controversy, the COMELEC exercises quasi-judicial/administrative powers.

3. Its jurisdiction over ‘contests’ (after proclamation), is in exercise of its judicial functions.

E. The COMELEC may issue writs of certiorari, prohibition and mandamus in exercise of its appellate jurisdiction.  This is not an inherent power.

3) Decide, except those involving the right to vote, all questions affecting elections, including determination of the number and location of polling places, appointment of election officials and inspectors, and registration of voters.

Note: Questions involving the right to vote fall within the jurisdiction of the ordinary courts.

4) Deputize, with the concurrence of the President, law enforcement agencies and instrumentalities of the Government, including the Armed Forces of the Philippines, for the exclusive purpose of ensuring free, orderly, honest, peaceful, and credible elections.

a). This power is NOT limited to the election period.

b). Applies to both criminal and administrative cases.

5) Registration of political parties, organizations, or coalitions/accreditation of citizens’ arms of the Commission on Elections.

a). The political parties etc. must present their platform or program of government.

b). There should be sufficient publication

c). Groups which cannot be registered:

i. Religious denominations/sects

ii. Groups which seek to achieve their goals through violence or unlawful means

iii. Groups which refuse to uphold and adhere to the Constitution

iv. Groups which are supported by any foreign government.

d). BUT:  Political parties with religious affiliation or which derive their principles from religious beliefs are registerable.

e). Financial contributions from foreign governments and their agencies to political parties, organizations, coalitions, or candidates related to elections constitute interference in national affairs.  If accepted, it is an additional ground for the cancellation of their registration with the Commission, in addition to other penalties that may be prescribed by law.

1)    File, upon a verified complaint, or on its own initiative, petitions in court for inclusion of exclusion of voters; investigate and, where appropriate, prosecute cases of violations of election laws, including acts or omissions constituting elections frauds, offenses and malpractices.

  1. COMELEC has exclusive jurisdiction to investigate and prosecute cases for violations of election laws.
  2. COMELEC can deputize prosecutors for this purpose.  The actions of the prosecutors are the actions of the COMELEC
  3. Preliminary investigation conducted by COMELEC is valid.

2)    Recommend to the Congress effective measures to minimize election spending, including limitation of places where propaganda materials shall be posted, and to prevent and penalize all forms of election frauds, offenses, malpractices, and nuisance candidacies.

3)    Recommend to the President the removal of any officer or employee it has deputized, or the imposition of any other disciplinary action, for violation or disregard or, or disobedience to its directive, order, or decision.

4)    Submit to the President and the congress a comprehensive report on the conduct of each election, plebiscite, initiative, referendum, or recall.

Section 3.  RULES OF PROCEDURE/DECISION-MAKING

Rules of Procedure

1)    COMELEC can sit en banc or in two divisions

2)    It has the power to promulgate its own rules of procedure in order to expedite disposition of election cases, including pre-election controversies.

Decision-Making

1) Election cases should be heard and decided in division. Provided that,

2) Motions for reconsideration of decisions should be decided by COMELEC en banc.

3) ”Decisions” mean resolutions on substantive issues.

2)    If a division dismisses a case for failure of counsel to appear, the Motion for Reconsideration here may be heard by the division.

3)    EXCEPTION: COMELEC en banc may directly assume jurisdiction over a petition to correct manifest errors in the tallying of results by Board of Canvassers.

Section 4.  SUPERVISION/REGULATION OF FANCHISES / PERMITS / GRANTS / SPECIAL PRIVILEGES / CONCESSIONS

Regulation of franchises

A. What can COMELEC supervise or regulate

1). The enjoyment or utilization of all franchises or permits for the operation of transportation and other public utilities, media of communication or information.

2). Grants, special privileges or concessions granted by the Government or any subdivision, agency or instrumentality thereof, including any GOCC or its subsidiary

B. When can COMELEC exercise this power

 1). During the election period

a). Under Article XI, Section 9, the election period commences 90 days before

the day of the election and ends 30 days thereafter.

b). In special cases, COMELEC can fix a period.

2). Applies not just to elections but also to plebiscites and referenda.

3). Plebiscite: Submission of constitutional amendments or important legislative measures to the people ratification

4). Referendum:  power of the electorate to approve or reject legislation through an election called for that purpose.

COMELEC and the MEDIA

1). COMELEC cannot compel print media to donate free space to the COMELEC.  It may, however, compel it to provide space after paying just compensation.

2). Power of COMELEC is over franchises and permits, NOT individuals. For example, COMELEC may not regulate media practitioners, for this would violate the freedom of expression.

Section 5.  No pardon, amnesty, parole, or suspension of sentence for violation of election laws, rules, and regulations shall be granted by the President without the favorable recommendation of the Commission.

Section 6

Definition of Political Party

  • organized group of persons pursuing the same political ideals in a government and includes its branches, and divisions

Importance of registration of a political party

1)    Registration confers juridical personality on the party.

2)    It informs the public of the party’s existence and ideals.

3)    It identifies the party and its officers for purposes of regulation by the COMELEC.

Section 7.  No votes cast in favor of a political party, organization, or coalition shall be valid, except for those registered under the party-list system as provided in this Constitution.

Prohibition on block-voting

1) General rule: Block voting NOT allowed

2) EXCEPTION: those registered under the party-list system

Section 8.  PARTY LIST SYSTEM

No Right to be Represented in Various Boards

  • Political parties, organizations, or coalitions registered under the party-list system shall NOT be represented in the following:

1). Voters’ registrations boards,

2). Boards of election inspectors,

3). Boards of canvassers, or

4). Other similar bodies.

Poll Watchers

  • Political parties, etc. are entitled to appoint poll watchers in accordance with law.

Section 10.  Bona fide candidates for any public office shall be free from any form of harassment and discrimination.

  • This section does not give candidates immunity from suit.
  • Discrimination includes unequal treatment in the availment of media facilities.

Section 11.  FUNDING

How provided

1)    Funds certified by the COMELEC as necessary to defray the expenses for holding regular and special elections, plebiscites, initiative, referenda and recalls, shall provided in the regular or special appropriations.

2)    Funds should be certified by the COMELEC as necessary.

Release of funds

  • Once approved, funds should be released automatically upon certification by the Chairman of COMELEC.

THE COMMISSION ON AUDIT

Section 1.  COMPOSITION/QUALIFICATIONS

Composition:

1)    Chairman, and

2)    Commissioners (2).

Qualifications:

1)    Natural-born citizens of the Philippines

2)    At least 36 years old at the time of their appointment;

3)    Either:

a). CPA’s with at least 10 years auditing experience; or

b). Members of Phil. Bar with 10 years of practice.

4)    Members cannot all belong to the same profession.

5)    Subject to confirmation of the CA.

6)    Must not have been candidates for any elective position in the elections immediately preceding their appointment.

Term:

1)    Chairman -7 yrs; Commissioner1 -5yrs; Commissioner – 2 -3 yrs.

2)    LIMITATION: – Single terms only; no re-appointment allowed

3)    Appointments to any vacancy shall only be for the unexpired portion of predecessor’s term.

Section 2.  POWERS

1)    Examine, audit, and settle accounts pertaining to:

  1. Revenue and receipts of funds or property; or
  2. Expenditures and uses of funds or property

Owned or held in trust by, or pertain to:

  1. The Government;
  2. Any of its subdivisions, agencies or instrumentalities;
  3. Including GOCC’s with original charters.

2)    Conduct post-audit with respect to the following:

  1. Constitutional bodies, commissions, and offices granted fiscal autonomy;
  2. Autonomous state colleges and universities;
  3. GOCC’s and their subsidiaries incorporated under the Corporation Code.
  4. None-governmental entities receiving subsidies or equity, directly or indirectly, from or through the government, which are required by law of the granting of institution to submit to such audit.

3)    If COA finds internal control system of audited agencies as inadequate, COA may adopt measures, including temporary or special pre-audit, as may be necessary.

4)    Keep the general accounts of the government, preserving vouchers and other supporting papers pertaining thereto.

5)    Exclusive authority to define the scope of COA’s audit and examination and to establish the techniques and methods required therefor.

6)    Promulgate accounting and auditing rules and regulations.

  1. Including those for the prevention or disallowance of irregular, unnecessary, excessive, extravagant, or unconscionable expenditures or uses of government funds and properties.
  2. Failure to comply with these rules can be a ground for disapproving the payment of a proposed expenditure.

Note:

1)    The functions of COA can be classified as:

  1. Examine and audit all forms of government revenues;
  2. Examine and audit all forms of gov’t expenditures
  3. Settle gov’t accounts
  4. Promulgate accounting and auditing rules (including those for the prevention of irregular…expenditures.
  5. To decide administrative cases involving expenditures of public funds.

2)    COA can settle only LIQUIDATED ACCOUNTS or those accounts which may be adjusted simply by arithmetic process.

3)    COA has authority not just over accountable officers but also over other officers who perform functions related to accounting such as verification of evaluations and computation of fees collectible, and the adoption of internal rules of control.

4)    COA does not have the power to fix the amount of an unfixed or undetermined debt.

5)    Where the following requirements are complied with, it becomes the ministerial duty of the COA to approve and pass in audit vouchers for payment:

  1. There is a law appropriating funds for a particular purpose;
  2. There is a contract, made by the proper officer, entered into in conformity with the above-mentioned law;
  3. The goods or services covered by such contract have been delivered or rendered in pursuance to such contract, as attested by the proper officer; and
  4. Payment has been authorized by officials of the corresponding department or bureau.

6)    Prosecutors may still review accounts already settled and approved by COA for the purpose of determining possible criminal liability.  This is because COA’s interest in such accounts is merely administrative.

7)      COA has the power to determine the meaning of ‘public bidding’ and what constitutes failure when regulations require public bidding for the sale of government property.

Section 3.  No law shall be passed exempting any entity of the Government or its subsidiary in any guise whatever, or any investment of public funds, from the jurisdiction of the Commission on Audit.

ARTICLE X: LOCAL GOVERNMENT

 

Section 1.  TERRITORIAL/POLITICAL SUBDIVISIONS OF THE REPUBLIC OF THE PHILIPPINES ARE THE:

Composition:

1)      Provinces

2)      Cities;

3)      Municipalities; and

4)      Barangays

There shall be Autonomous regions in:

1)      Muslim Mindanao, and

2)      Cordileras [At present, it is only the Cordilera ADMINISTRATIVE region]

Note:    1) A third autonomous regions would require a constiutional amendment.

2) These political subdivisions, created by the Constitution cannot be replaced by AMENDMENT, and not by law.

3) While Congress can abolish or eradicate individual units, it cannot abolish an entire class of LGU’s

Section 2.  Local Autonomy

1)      All political subdivisions shall enjoy local autonomy

2)      This does not mean that the LGU’s are completely free from the central government.

  1. Judiciary may still pass on LGU actions
  2. President may exercise disciplinary power over LGU officials.

Sec. 3. Congress shall enact a local government code which shall provide for a more responsive and accountable local government structure instituted through a system of decentralization with effective mechanisms of recall, initiative, and referendum, allocate among the different local government units their powers, responsibilities, and resources, and provide for the qualifications, election, appointment and removal, term, salaries, powers and functions and duties of local officials, and all other matters relating to the organization and operation of the local units.

Section 4.  PRESIDENTIAL SUPERVISION OF LGUS

Supervision of President

1)      The President exercises general supervision over all LGUs

2)      The President exercises DIRECT supervision over

  1. Provinces
  2. Autonomous regions and
  3. Independent cities.

3)      This power is limited to ensuring that lower officers exercise their functions in accordance with law.

4)      The president cannot substitute his judgment for that of an LGU official unless the latter is acting contrary to law.

5)      The President may, however, impose administrative sanctions against LGU officials, such as suspension for 120 days, and may even remove them from their posts, in accordance with law.

6)      Provinces exercise direct supervision over component cities and municipalities.

7)      Cities and municipalities exercise direct supervision over component barangays.

Section 5.  EACH LOCAL GOVERNMENT SHALL HAVE THE POWER TO CREATE OWN SOURCES OF REVENUE/LEVY TAXES, FEES AND CHARGES ETC.

Limitations on Power

1)      It is subject to such guidelines and limitations as Congress may provide.  See Local Government Code for examples.

2)      The guidelines set by Congress should be consistent with the basic policy of local autonomy.

Accrual of taxes, fees, charges

The taxes, fees and charges shall accrue exclusively to the local governments.

Section 6. LGUs SHALL HAVE A JUST SHARE IN NATIONAL TAXES, AS DETERMINED BY LAW, WHICH SHALL BE AUTOMATICALLY RELEASED TO THEM

Internal Revenue Allotment (IRA)

1)      Share of LGUs in national taxes is limited to the internal revenue taxes.

2)      The share of each LGU should be released, without need of any further action, directly to the provincial, city, municipal or barangay treasurer.  Release is made on a quarterly basis within 5 days after the end of each quarter.

3)      The share of each LGU should not be subject to any lien or holdback that may be imposed by the national government for whatever purpose.

4)      Each LGU should appropriate in its annual budget at least 20% of its annual IRA for development projects.

5)      Adjustments in IRA

  1. Ground:  Unmanageable public section deficit
  2. President can make the necessary adjustments in the IRA upon the recommendation of the following:
  3. Department of Finance Secretary
  4. DILG Secretary
  5. DBM Secretary

6)      IRA considered for purposes of conversion from one political subdivision to the next.  (Alvarez v. Guingona)

Section 7.  SHARE OF LGUS IN NATIONAL WEALTH

Share of LGUs in national wealth

1)      LGUs are entitled to an equitable share in the proceeds of the utilization and development of the national wealth within their respective areas in the manner provided by law.

2)      This includes share the same with the inhabitants by way of direct benefits.

Under the LGC

1)      LGUs have a share of 40% of the gross collection derived by the national government from the preceding fiscal year from

  1. Mining taxes
  2. Royalties
  3. Forestry and fishery charges
  4. Other taxes, fees and charges
  5. Share in any co-production, joint venture or production sharing agreement in the utilization and development of the national wealth w/in their territorial jurisdiction

Sec. 8.  TERM OF OFFICE

Term of Office

Elective local officials, now including barangay officials have a term of 3 years.

Limitations:

1)      No elective official shall serve for more than 3 consecutive terms

2)      Voluntary renunciation of office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected.

Sec. 9.  SECTORAL REPRESENTATION IN LGUS

Legislative bodies of the local governments shall have Sectoral Representation (under the LGC) as may be provided by law

There should be representatives from:

1)      The women’s sector

2)      The workers

3)      Third sector (can choose from any of the following)

A)    Urban poor

B)     Indigenous cultural communities

C)     Disabled persons

D)    Any other sector as may be determined by the sanggunian

Election of Sector Representatives

Sec. 10. Creation, abolition and division of LGU’s

1)      Requisites

  1. Compliance with the requirements of the Local Government Code; and
  2. Approved by a majority of the votes cast in a plebiscite held in the political units DIRECTLY affected.

2)      Thus, a province is supposed to be divided into 2 separate provinces, plebiscite will include voters of the ENTIRE province, and not just the area to comprise the new province.

3)      LGC requirements relate to matters such as population, revenue, and area requirements.

Sec. 11.  Metropolitan political subdivisions

Creation:

1)      Congress may create special metropolitan political subdivisions by law.

2)      It is subject to a plebiscite

Jurisdiction of Metropolitan authority

It is limited to basic services requiring coordination.

Basic Autonomy of Component Cities and Municipalities

1)      The component cities and municipalities retain their basic autonomy

2)      They shall be entitled to their own local executive and legislative assemblies.

Sec. 12.  CITIES

Classification of Cities:

1)      Highly urbanized (as determined by law)

2)      Component cities (cities still under provincial control); and

3)      Independent component cities (non-highly urbanized cities whose voters are prohibited by thecity charter from voting in provincial elections)

Independence from the Province

1)      Highly urbanized cities and independent component cities are independent of the province.

2)      Component cities whose charter contain no such prohibition are still under the control of the province and its voters may still vote for elective provincial officials.

Section 13.  Coordination among LGUS

Consolidation and Coordination of Efforts, Services and Resources

1)      It is optional on the part of LGUs as shown by the use of the word “may”

2)      It can be done for purposes commonly beneficial to them in accordance with the law.

Under LGC (Section 33)

1)      Consolidation and coordination may be done through appropriate ordinances.

2)      A public hearing should be conducted and the approval of the sanggunian obtained.

3)      An LGU can:

  1. Contribute funds, real estate, equipment and other kinds of property
  2. Appoint/assign personnel under such terms and conditions as may be agreed upon by the participating LGUs through Memoranda of Agreement.

Section 14.  REGIONAL DEVELOPMENT COUNCILS

Who can provide for RDC

The President shall provide for RDC or other similar bodies composed of:

Composition

1)      Local government officials

2)      Regional heads of departments and other government offices

3)      Representatives of NGOS within the regions

For Purpose of

1)      Administrative decentralization

2)      To strengthen local autonomy

3)      To accelerate the economic and social growth and development of the units in the region

Section 15.  AUTONOMOUS REGIONS

Where:

1)      Muslim Mindanao

2)      Cordillera region

Factors:

1)      Historical heritage

2)      Cultural heritage

3)      Economic and social structures,

4)      Other relevant characteristics within:

  1. The framework of the consititution
  2. National sovereignty
  3. Territorial integrity.

Creation:

1)      Provided by law.

2)      EFFECTIVITY of such creation occurs only when it is approved by a majority of the votes cast in a plebiscite held among the constituent units.

3)      Only those Provinces, Cities, and Geographical Areas voting favorably in such plebiscite shall form part of the autonomous region.

4)      If only 1 province approved the law, NO AUTONOMOUS REGION created, since the constitution requires more than one province to constitute one (like what happened in the Cordillera plebiscite)

5)      The question of which LGU’s shall constitute an autonomous region is one which is exclusively for Congress to decide.

Section 16.  GENERAL SUPERVISION OVER AUTONOMOUS REGIONS

By Whom:

The President

Purpose:

To ensure that the laws are faithfully executed.

Sec. 17.  All powers, functions and responsibilities not granted by this Constitution or by law to the autonomous region shall be vested in the National Government.

Examples:        1) Foreign relations,

2) National defense and Security

3) Monetary Affairs

Section 20.  LEGISLATIVE POWERS

The Organic Act of Autonomous Region shall provide for legislative powers over:

1)      Administrative organization;

2)      Creation of sources of revenues;

3)      Ancestral domain and natural resources

4)      Personal, family and property relations

5)      Regional, urban, and rural planning development;

6)      Economic, social, and tourism development;

7)      Educational policies;

8)      Preservation and development of the cultural heritage; and

9)      Such other matters as may be authorized by law for the promotion of the general welfare of the people of the region.

Limitations:

1)      Subject to the provisions of the Constitution and national laws

2)      To be exercised within its territorial jurisdiction

Section 21.  PRESERVATION OF PEACE AND ORDER/DEFENSE AND SECURITY

Peace and Order

It shall be the responsibility of the local police agencies.

Defense and Security

It shall be the responsibility of the national government.

ARTICLE XI: ACCOUNTABILITY OF PUBLIC OFFICERS

 

Section 1: PUBLIC OFFICE AS A PUBLIC TRUST

Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency, act with patriotism and justice and lead modest lives.

 

Section 2: IMPEACHMENT/REMOVAL FROM OFFICE

Impeachment: (as means of removal from office)

1.  Who may be impeached:

- President

- VP

- SC Justices

- Constitutional Commission members

- Ombudsman

2.  Grounds

- Culpable violation of the Constitution

- treason

- bribery

- graft and corruption

- other high crimes or

- betrayal of public trust

Note: It is an exclusive list.  Congress cannot, by law, add to the list of impeachable offenses.

  1. These officers cannot be charged in court with offenses that have removal from office as penalty.
  2. The President cannot be charged with murder.
  3. A SC Justice cannot be disbarred because this would disqualify him from his position.
  4. BUT AFTER an official has been impeached, he can be charged with the appropriate offense.
  5. Resignation by an impeachable official does not place him beyond the reach of impeachment proceedings; he can still be impeached

All Other Public Officers and Employees

1.  They may be removed from office as provided by law

2.  BUT: NOT by impeachment

Section 3: PROCEDURE FOR IMPEACHMENT

Exclusive Power of House of Representatives

The House of Representatives has exclusive power to INITIATE all cases of impeachment.

Procedure:

1.  Filling of verified complaint

  1. Can be filed by:
  2. Any member of the House of Representatives or
  3. Any citizen upon a resolution of endorsement by any Member of the House or
  4. By at least 1/3 of all the Members of the House of Representatives

2.)  Inclusion of complaint in the order of business with 10 session days

3.)  Referral to proper Committee within 3 session days thereafter

4.)   Submission of Committee report to the House together with corresponding resolution

  1. There should be a hearing
  2. There should be a majority vote of the members
  3. The report should be submitted within 60 days from referral, after hearing, and by a majority vote of ALL its members.

5.)  Calendaring of resolution for consideration by the House

Should be done within 10 session days from receipt thereof

6.)   Vote of at least 1/3 of all Members of the House necessary to:

  1. Affirm a favorable resolution with the Articles of Impeachment of the Committee or
  2. To override its contrary resolution

Note: If the verified complaint or resolution of impeachment was filed by at least 1/3 of all the Members of the House, it shall constitute the Articles of Impeachment.  Trial in the Senate shall proceed.

7.)        Trial in the Senate

  1. Senate has the sole power to try and decide all cases of impeachment
  2. For this purpose, the Senators shall be under oath or affirmation
  3. When the President of the Philippines is on trial, the CJ of the Supreme Court presides.  However, he/she will not vote.

8.)          Judgment of Conviction

This requires the concurrence of 2/3 of all the Members of the Senate

9.)          Effect of the Impeachment

  1. Removal from office of the official concerned
  2. Disqualification to hold any office under the Republic of the Philippines
  3. Officer still liable to prosecution, trial, and punishment if the impeachable offense committed also constitutes a felony or crime.

Section 4: SANDIGANBAYAN

Sandiganbayan = the anti-graft court

Sections 5-6, 8-14:  OFFICE OF THE OMBUDSMAN

Composition:

1.)                Ombudsman/Tanodbayan

2.)                Overall deputy

3.)                At least one Deputy each for Luzon, Visayas and Mindanao

4.)                Deputy for military establishment may be appointed

Qualifications: (Ombudsman and his deputies)

1.)    Natural born citizen of the Philippines

2.)    At least 40 years old at time of appointment

3.)    Of recognized probity and independence

4.)    Member of the Philippine bar

5.)    Must not have been candidate for any elective office in the immediately preceding election

6.)    For Ombudsman: He must have been for ten years or more

  1. A judge or
  2. Engage in the practice of law in the Philippines

Disqualifications/Prohibitions (under Article IX, Section 2)

1.)    Cannot hold any other office or employment during his tenure

2.)    Cannot engage in the practice of any profession or in the active management or control of any business which may be affected by the functions of his office

3.)    Cannot be financially interested, directly or indirectly, in any contract with or in any franchise or privilege granted by the Government, any of its subdivisions, agencies or instrumentalities, including GOCCs or their subsidiaries.

Appointment

1.  Of Ombudsman and deputies

  1. By the president from a list of at least 6 nominees prepared by the Judicial and Bar Council. Vacancies will be filled from a list of 3 nominees
  2. Appointments do NOT require confirmation
  3. All vacancies shall be filled within 3 months after they occur.

2.  Of other officials and employees of the Office of the Ombudsman

  1. By the Ombudsman
  2. In accordance with Civil Service Law

Term: (Ombudsman and deputies)

1.  7 years with reappointment

2.  They are NOT qualified to run for any office in the election immediately succeeding their cessation from office

Rank/Salaries:

1.  The Ombudsman has the rank of Chairman of a Constitutional Commission

2.  The Members have the rank of members of a Constitutional Commission

3.  Their salaries cannot be decreased during their term of office.

Powers, Functions and Duties of the Office of the Ombudsman

1.  Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient.

  1. The SC held that the power to investigate and prosecute cases involving public officers and employees has been transferred to the Ombudsman.
  2. The Ombudsman may always delegate his power to investigate.
  3. The power to investigate includes the power to impose preventive suspension.
  4. This preventive suspension is not a penalty.
  5. “INVESTIGATE” does not mean preliminary investigation.
  6. The complaint need not be drawn up in the usual form.
  7. The “ILLEGAL” act or omission need not be in connection with the duties of the public officer or employee concerned.
  8. ANY illegal act may be investigated by the Ombudsman.  In this regard, the Ombudsman’s jurisdiction is CONCURRENT with that of the regular prosecutors.

2.  Direct, upon complaint or at its own instance, any public official or employee of the government, or any subdivision, agency or instrumentality thereof, as well as of any government-owned or controlled corporation with original charter, to perform and expedite any act of duty required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of duties.

  1. The Ombudsman has PERSUASIVE POWER, and may require that proper legal steps are taken by the officers concerned.
  2. The public official or employee must be employed in:

(I).       The Government

(II).      Any subdivision, agency, or instrumentality thereof; or

(III).     GOCC’s with original charters

  1. The SC has held that the SP may prosecute before the Sandiganbayan judges accused of graft and corruption, even if they are under the Supreme Court.

3.)  Direct the officer concerned to take the appropriate action against a public official or employee at fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith.

  1. The Ombudsman does NOT himself prosecute cases against public officers or employees.
  2. Final say to prosecute still rests in the executive department.
  3. The Ombudsman or Tanodbayan may use mandamus to compel the fiscal to prosecute.

4.)  Direct the officer concerned, in any appropriate case, and subject to such limitations as may be provided by law to furnish it with copies of documents relating to contracts or transactions entered into by his office involving the disbursement or use of public funds of properties, and report any irregularity to COA for appropriate action.

5.) Request any government agency for assistance and information necessary in the discharge of its responsibilities, and to examine, if necessary, pertinent records and documents.

6.) Public matters covered by its investigation when circumstances so warrant and with due process.

7.) Determine the cause of inefficiency, red tape, mismanagement, fraud and corruption in the government and make recommendations for their elimination and the observance of high standards of ethics and efficiency

8.) Promulgate its rules of procedure and exercise such other powers or perform such functions or duties as may be provided by law.

Note: The Office of the Ombudsman also has the duty to act promptly on complaints filed in any form or manner against public officials or employees of the government, or any subdivision, agency or instrumentality including GOCCs and their subsidiaries.  In appropriate cases, it should notify the complainants of the action taken and the result thereof.

Fiscal Autonomy

The Office of the Ombudsman enjoys fiscal autonomy.  Its approved annual appropriations should be automatically and regularly released.

Section 7:  OFFICE OF THE SPECIAL PROCECUTOR

1. Under the 1987 Constitution, the existing Tanodbayan became the Office of the Special Prosecutor

2. Powers

  1. It will continue to function and exercise its powers as now or hereafter may be provided by law
  2. Exception: Powers conferred on the Office of the Ombudsman

3. The Office of the Special Prosecutor is subordinate to and acts under the orders of the Ombudsman

Note: According to Jack, the SC was wrong because the ConCom intended that the SP was to prosecute anti-graft cases.

Section 15: RECOVERY OF ILL-GOTTEN WEALTH

Prescription, Laches, Estoppel

1.)    The right of the State to recover properties unlawfully acquired by public officials and employees from them or from their nominees or transferees shall NOT be barred by prescription, laches or estoppel.

2.) Their right to prosecute criminally these officials and employees may prescribe.

Section 16: PROHIBITION ON CERTAIN FINANCIAL TRANSACTIONS

Coverage:

This prohibition applies to:

1.)    President

2.)    Vice-President

3.)    Members of the Cabinet

4.)    Members of Congress

5.)    Members of Supreme Court

6.)    Members of Constitutional Commissions

7.)    Ombudsman

8.)    Any firm or entity in which they have controlling interest

When prohibition applies:

Prohibition applies during their TENURE.

Scope of prohibition:

1.)    The above mentioned officials cannot obtain, directly or indirectly for BUSINESS PURPOSES:

  1. Loans
  2. Guarantees
  3. Other forms of financial accommodation

From:

  1. Government owned or controlled banks; or
  2. Government owned or controlled financial institutions.

2.)    If the loan, etc, is NOT for business purpose, e.g. a housing loan, the prohibition does not apply.

Section 17: Statements of assets, liabilities and net worth

When submitted:

Public officer and employee shall submit a declaration under oath of his assets, liabilities and net worth upon assumption of office and as often as required under the law.

When declaration shall be disclosed to the public:

These declarations shall be disclosed to the public in a manner provided by law in the case of:

1.)    President

2.)    Vice-President

3.)    Members of the Cabinet

4.)    Members of Congress

5.)    Justices of the Supreme Court

6.)    Members of Constitutional Commissions

7.)    Other constitutional offices

8.)    Officers of the armed forces with general or flag rank

Section 18: Allegiance of public officers and employees

Allegiance to the State and to the Constitution

Change in Citizenship/Immigrant Status

1.)    Incumbent public officers and employees who seek either:

  1. Change his citizenship; or
  2. Acquire immigrant status in another country

Shall be dealt with by law.

2.)    If Philippine citizenship is one of the qualifications to the office, the loss of such citizenship means the loss of the office by the incumbent.

3.)    The Election Code provides the rules with respect to non-incumbents, i.e. persons running for elective offices.

  1. The Code provides that permanent residents of or immigrant to a foreign country cannot file certificates of candidacy unless they expressly waive their status as such

This renunciation must be some other than, and prior to, the filling of the certificate of candidacy.

 

ARTICLE XII – NATIONAL ECONOMY AND PATRIMONY

 

Sec. 1.  GOALS OF THE NATIONAL ECONOMY

Three-fold goal:

1.  More equitable distribution of opportunities, income and wealth;

2.  Sustained increase in the amount of goods and services produced by the nation for the benefit of the people; and

3.  Expanding productivity, as the key to raising the quality of life for all.

The State shall promote industrialization and full employment

1.  It should be based on sound agricultural development and agrarian reform

2.  It should be through industries that make full and efficient use of human and natural resources.  Industries should also be competitive in both domestic and foreign markets.

Protection of Filipino enterprises

The State shall protect Filipino enterprises against unfair foreign competition and trade practices.

Role of Private Enterprises

Private enterprises, including corporations, cooperatives, and similar collective organizations, shall be encouraged to broaden the base of their ownership

Section 2. REGALIAN DOCTRINE

Distinction between Imperium and Dominium.

1.  Imperium

Government authority possessed by the State which is appropriately embraced in sovereignty.

2.  Dominium

  1. The capacity of the State to own and acquire property.
  2. It refers to lands held by the government in a proprietary character: can provide for the exploitation and use of lands and other natural resources.

Scope:

The following are owned by the State:

1.  Lands of the public domain:

Waters

Minerals, coals, petroleum, and other mineral oils;

All sources of potential energy;

Fisheries;

Forests or timber;

Wildlife;

Flora and fauna; and

Other natural resources.

Alienation of Natural Resources

1.  General Rule:  All natural resources CANNOT be alienated

2.  Exception:  Agricultural lands

Exploration, Development and Utilization of Natural Resources

1.  Shall be under the full control and supervision of the State

2.  Means

A.  The state may DIRECTLY UNDERTAKE such activities

B. The state may enter into CO-PRODUCTION, JOINT VENTURE OR PRODUCTION-SHARING arrangements with

  1. Filipino citizen or
  2. Corporation or association at least 60% of whose capital is owned by such citizens

3.  Limitations:

A.  Period:  It should not exceed 25 years, renewable for not more than 25 years

B.  Under terms and conditions as may be provided by law.

4. In case of water rights/water supply/fisheries/industrial uses other than the development of water power

The beneficial use may be the measure and limit of the grant.

Small-scale Utilization of Natural Resources

1. Congress may, by law, authorize small-scale utilization of natural resources by Filipino citizens

2. Congress may also authorize cooperative fish farming with priority given to subsistence fishermen and fishworkers in the rivers, lakes, bays and lagoons.

Large-Scale Exploration, Development and Utilization of Minerals/Petroleum/Other Mineral Oils

1.  The President may enter into agreements with foreign owned corporations involving technical or financial assistance for large-scale exploration etc. of minerals, petroleum, and other mineral oils.  These agreements should be in accordance with the general terms and conditions provided by law.

2.  They should be based on the real contributions to economic growth and general welfare of the country.

3.  In the agreements, the State should promote the development and use of local scientific and technical resources.

4.  The President should notify Congress of every contract under this provision within 30 days from its execution.

5.  Management and service contracts are not allowed under this rule.

Protection of Marine Wealth

1.  The State shall protect its marine wealth in its

Archipelagic waters

Territorial sea &

EEZ

2.  The State shall reserve its use and enjoyment exclusively to Filipino citizens.

Section 3.  LANDS OF THE PUBLIC DOMAIN ARE CLASSIFIED INTO

1.  Agricultural

2.  Forest/timber

3.  Mineral lands &

4.  National Parks

Note:

1.  Classification of public lands is an exclusive prerogative of the Executive Department through the Office of the President, upon recommendation by the DENR.

2.  Classification is descriptive of the legal nature of the land and NOT what it looks like.  Thus, the fact that forest land is denuded does not mean it is no longer forest land.

Alienable lands of public domain

1.  Only agricultural lands are alienable.

2.  Agricultural lands may be further classified by law according to the uses to which they may be devoted.

Limitations regarding Alienable Lands of the Public Domain

1.  For private corporations or associations

A.  They can only hold alienable lands of the public domain BY LEASE

            B.  Period:  Cannot exceed 25 years, renewable for not more than 25 years

C.  Area:  Lease cannot exceed 1,000 hectares

Note:  A  corporation sole is treated like other private corporations for the purpose of acquiring public lands.

2.  For Filipino citizens

A.  Can lease up to 500 hectares

B.   Can ACQUIRE not more than 12 hectares by purchase, homestead or grant.

Taking into account the requirements of conservation, ecology and development, and subject to the requirements of agrarian reform, Congress shall determine by law the size of the lands of the public domain which may be acquired, developed, held or lease and the conditions therefore.

Means by Which Lands of the Public Domain Become Private Land

1.  Acquired from government by purchase or grant;

2.  Uninterrupted possession by the occupant and his predecessors-in-interest since time immemorial; and

3.  Open, exclusive, and undisputed possession of ALIENABLE (agricultural) public land for a period of 30 years.

A.  Upon completion of the requisite period, the land becomes private property ipso jure without need of any judicial or other sanction.

B.  Here, in possession since time immemorial, presumption is that the land was never part of public domain.

C.  In computing 30 years, start from when land was converted to alienable land, not when it was still forest land

D.  Presumption is that land belongs to the State.

Section 4.  Congress shall, as soon as possible, determine by law, the specific limits of forest lands and national parks, marking clearly their boundaries on the ground.  Thereafter, such forest lands and national parks shall be conserved and may not be increased or diminished, EXCEPT by law.  Congress shall provide measures to prohibit logging in

  1. Endangered forest and
  2. Watershed areas for such period as it may determine.

Section 5.  ANCESTRAL LANDS

Protection of Indigenous Cultural Communities

1.  The State protects the rights of indigenous cultural communities to their ancestral lands

A.  Subject to Constitutional provisions

B.  Subject to national development policies and programs

2.  In determining ownership and extent of ancestral domain, Congress may use customary laws on property rights and relations.

3.  “ANCESTRAL DOMAIN”

A.  It refers to lands which are considered as pertaining to a cultural region

B.  This includes lands not yet occupied, such as deep forests.

Section 7.  PRIVATE LANDS

General rule

1.  Private lands CAN only be transferred or conveyed to:

A.  Filipino citizens

B. Corporations or associations incorporated in the Philippines, at least 60% of whose capital is owned by Filipino citizens

2.  Exceptions

A.  In intestate succession, where an alien heir of a Filipino is the transferee of private land.

B.  A natural born citizen of the Philippines who has lost his Philippine citizenship may be a transferee of PRIVATE ALND, subject to limitation provided by law.  Hence, land can be used only for residential purposes.  In this case, he only acquires derivative title.

C.  Foreign states may acquire land but only for embassy and staff residence purposes.

3.  Filipino citizenship is only required at the time the land is acquired.  Thus, loss of citizenship after acquiring the land does not deprive ownership.

4.  Restriction against aliens only applies to acquisition of ownership.  Therefore:

A.  Aliens may be lessees or usufructuaries of private lands

B.  Aliens may be mortgages of land, as long as they do not obtain possession thereof and do not bid in the foreclosure sale.

5.  Land tenure is not indispensable to the free exercise of religious profession and worship.  A religious corporation controlled by non-Filipinos cannot acquire and own land, even for religious purposes.

Remedies to recover private lands from disqualified aliens:

1.  Escheat proceedings

2.  Action for reversion under the Public Land Act

3.  An action by the former Filipino owner to recover the land

A.  The former pari delicto principle has been abandoned

B.  Alien still has the title (didn’t pass it on to one who is qualified)

Section 10.  NATIONAL ECONOMY AND PATRIMONY/INVESTMENTS

Power of Congress

1.  Congress, upon the recommendation of NEDA, can reserve to Filipino citizens or to corporations or associations at least 60% of whose capital is owned by such citizens, or such higher percentage as Congress may prescribe, certain areas of investment.  This may be done when the national interest dictates.

2.  Congress shall also enact measures to encourage the formation and operation of enterprises whose capital is wholly owned by Filipinos.

National Economy and Patrimony

In the grant of rights, privileges and concessions covering the national economy and patrimony, the State shall give preference to QUALIFIED Filipinos.

Section 11.  FRANCHISES FOR PUBLIC UTILITIES

Power to grant:

1.  Congress may directly grant a legislative franchise; or

2. Power to grant franchises may be delegated to appropriate regulatory agencies and/or LGU’s

Public utility

1.  In order to be considered as a public utility, and thus subject to this provision, the undertaking must involve dealing directly with the public.

2.  Thus, a Build-Operate-Transfer grantee is NOT a public utility.  The BOT grantee merely constructs the utility, and it leases the same to the government.  It is the government which operates the public utility (operation separate from ownership).

To whom granted:

1.  Filipino citizens or

2.  Corporations or associations incorporated in the Philippines and at least 60% of the capital is owned by Filipino citizens.

Terms and conditions:

1.  Duration:  Not more than 50 years

2.  Franchise is NOT exclusive in character

3.  Franchise is granted under the condition that it is subject to amendment, alteration, or repeal by Congress when the common good so requires.

Participation of Foreign Investors

1. The participation of foreign investors in the governing body of any public utility enterprise shall be limited to their proportionate share in its capital.

2.  Foreigners cannot be appointed as the executive and managing officers because these positions are reserved for Filipino citizens.

Section 16.  FORMATION/ORGANIZATION/REGULATION OF CORPORATIONS

1.  Private corporations

Congress can only provide for the formation, etc of private corporations through a general law.

2.  GOCC’s

They may be created by:

a. Special charters in the interest of the common good and subject to the test of  economic viability.

b. By incorporation under the general corporation law.

Sections 18-19.  SPECIAL ECONOMIC POWERS OF THE GOVERNMENT

1.  Temporary takeover or direction of operations:

A.  Conditions

i.  National emergency and

ii.  When the public interest requires

B.  May be used against privately owned public utilities or businesses affected with public interest.

C.  Duration of the takeover:  period of emergency

D.  Takeover is subject to reasonable terms and conditions

E.  No need for just compensation because it is only temporary.

2.  Nationalization of vital industries:

A.  Exercised in the interest of national welfare or defense

B.  Involves either:

i.  Establishment and operation of vital industries; or

ii. Transfer to public ownership, upon payment of just compensation, public utilities and other private enterprises to be operated by the government.

Section 19.  MONOPOLIES

1.  The Constitution does NOT prohibit the existence of monopolies.

2. The State may either regulate or prohibit monopolies, when public interest so requires.

3.  Combinations in restraint of trade or unfair competition are prohibited.

Filipino citizenship or equity requirements:

ACTIVITY REQUIREMENTS                                             CITIZENSHIP AND/OR EQUITY

Exploitation of natural resources                     1.  Filipino citizens; or

2. Corporations incorporated in RP, with 60% Filipino ownership

Operation of Public Utilities                              1.  Filipino citizens; or

2. Corporations incorporated in RP, with 60% Filipino ownership

Acquisition of alienable lands of the public domain

1.  Filipino citizens;

2. Corporations incorporated in RP, with 60% Filipino ownership;

3.  Former natural-born citizens of RP, as transferees, with certain legal restrictions; and

4.  Alien heirs as transferees in case of intestate succession.

Practice of ALL Professions                            Filipino citizens only (natural persons)

*Congress may, by law, otherwise prescribe

Mass Media                                                             1.  Filipino citizens; or

2. Corporations incorporated in RP, and 100% Filipino owned

Advertising                                                            1.  Filipino citizens; or

2. Corporations incorporated in RP, and 70% Filipino owned.

Educational institution                                     1.  Filipino citizens; or

2. Corporations incorporated in RP, with 60% Filipino ownership

EXCEPT Schools established by religious groups and mission boards.

*Congress may, by law, increase Filipino equity requirements for ALL educational institutions.

Other economic activities                                Congress may, by law, reserve to Filipino citizens or to corporations 60% Filipino owned (or even higher) certain investment areas.

ARTICLE XIII – SOCIAL JUSTICE AND HUMAN RIGHTS

Social Justice

1)   Social justice in the Constitution is principally the embodiment of the principle that those who have less in life should have more in law.

2)   The 1987 Constitution advances beyond what was in previous Constitutions in that it seeks not only economic social justice but also political social justice.

Principal activities in order to achieve social justice

1)   Creation of more economic opportunities and more wealth; and

2)   Closer regulation of the acquisition, ownership, use and disposition of property in order to achieve a more equitable distribution of wealth and political power.

Labor

  • Section 3 of Article XIII elaborates on the provision in Article II by specifying who are protected by the Constitution, what rights are guaranteed, and what positive measures the state should take in order to enhance the welfare of labor.

Right to organize and to hold peaceful concerted activities

  • Ø The right to organize is given to all kinds of workers BOTH in the PRIVATE and PUBLIC sectors.
  • Ø The workers have a right to hold peaceful concerted activities except the right to strike, which is subject to limitation by law.

Right to participate in the decision making process of employers

The workers have the right to participate on matters affecting their rights and benefits, “as may be provided by law”.  This participation can be through

1)               collective bargaining agreements,

2)               grievance machineries,

3)               voluntary modes of settling disputes, and

4)               conciliation proceedings mediated by government.

Agrarian Reform

Goals:

Agrarian reform must aim at

1)  efficient production,

2)  a more equitable distribution of land which recognizes the right of farmers and regular farmworkers who are landless to own the land they till, and

3)  a just share of other or seasonal farmworkers in the fruits of the land.

CARL as an exercise of police power and power of eminent domain
  • To the extent that the law prescribes retention limits for landowners, there is an exercise of police power. But where it becomes necessary to deprive owners of their land in excess of the maximum allowed there is compensable taking and therefore the exercise of eminent domain.
Reach of agrarian reform
  • It extends not only to private agricultural lands, but also to “other natural resources,” even including the use and enjoyment of “communal marine and fishing resources” and “offshore fishing grounds”.

The Commission on Human Rights

Composition:

1)   Chairman; and

2)   4 members

Qualifications:

1)   Natural-born citizens of the Philippines;

2)   Majority of the Commission must be members of the Philippine Bar;

3)  Term of office, other qualifications and disabilities shall be provided by law;

4)  The appointment of the CHR members is NOT subject to CA confirmation; and

5)  The CHR is not of the same level as the COMELEC, CSC, or COA.

Powers:

1)  Investigate all forms of human rights violations involving civil or political rights

A. Violations may be committed by public officers or by civilians or rebels.

B. CHR cannot investigate violations of social rights.

C. CHR has NO adjudicatory powers over cases involving human rights violations.

D. They cannot investigate cases where no rights are violated.

E. Example: There is no right to occupy government land, i.e. squat thereon. Therefore, eviction therefrom is NOT a human rights violation.

2)  Adopt operational guidelines and rules of procedure.

3)  Cite for contempt for violations of its rules, in accordance with the Rules of Court.

4) Provide appropriate legal measures for the protection of the human rights of all persons, within the Philippines, as well as Filipinos residing abroad, and provide for preventive measures and legal aid services to the underprivileged whose human rights have been violated or need protection.

A. CHR can initiate court proceedings on behalf of victims of human rights violations.

B. They can recommend the prosecution of human rights violators, but it cannot itself prosecute these cases.

C. BUT: The CHR cannot issue restraining orders or injunctions against alleged human rights violators. These must be obtained from the regular courts.

5)  Exercise visitorial powers over jails, prisons and other detention facilities.

6) Establish continuing programs for research, education and information in order to enhance respect for the primacy of human rights.

7)  Recommend to Congress effective measures to promote human rights and to provide compensation to victims of human rights violations or their families.

8)  Monitor compliance by the government with international treaty obligations on human rights.

9) Grant immunity from prosecution to any person whose testimony or whose possession of documents or other evidence is necessary or convenient to determine the truth in any CHR investigation.

10) Request assistance from any department, bureau, office, or agency in the performance of its functions.

11)  Appoint its officers and employers in accordance with law.

12)  Perform such other functions and duties as may be provided for by law

ARTICLE XIV – EDUCATION, SCIENCE AND TECHNOLOGY,

ARTS, CULTURE, AND SPORTS

Education

Goals of the State:

The State shall promote and protect:

1) The right to quality education at all levels;

2) The right to affordable and accessible education; and

3) Education that is relevant to the needs of people and society.

Right to Education and Academic Freedom

The right to education must be read in conjunction with the academic freedom of schools to require “fair, reasonable, and equitable admission requirements.”

Power to Dismiss Students

1) Schools have the power to dismiss students, after due process, for disciplinary reasons.

2)  Acts committed outside the school may also be a ground for disciplinary action if:

a) It involves violations of school policies connected to school-sponsored activities; or

b) The misconduct affects the student’s status, or the good name or reputation of the school.

Regulation of Right to Education

The right to education in particular fields may be regulated by the State in the exercise of its police power, e.g. the State may limit the right to enter medical school by requiring the applicants to take the NMAT.

Free Education

1) The State shall maintain a system of free education in:

a) Elementary level, and

b) High school level.

2) Elementary education is compulsory for all children of school age. However, this is a moral rather than a legal compulsion.

Educational Institutions

I. Filipinization

A. Ownership:

1). Filipino citizens, or

2). Corporations incorporated in RP and 60% Filipino-owned.

EXCEPT: Schools established by religious groups and mission boards.

3). Congress may increase Filipino equity requirements in ALL educational institutions.

B. Control and Administration:

1). Must be vested in Filipino citizens

2). Refers to line positions, such as President, Dean, Principal, and Trustees

3). Faculty members may be foreigners.

C.  Student Population:

1). GENERAL RULE: Cannot establish school exclusively for aliens. Aliens can only comprise up to 1/3 of total enrollment.

2). EXCEPTIONS: Schools established for foreign diplomatic personnel and their dependents, and unless otherwise provided for by law for other foreign temporary residents.

II. Tax Exemptions

A. Non-stock, non-profit educational institutions:

1) All revenues and assets actually, directly and exclusively used for educational purposes are exempt from taxes and duties.

2) This is self-executory

    B. Proprietary educational institutions, including cooperatives:

1) Entitled to exemptions as may be provided by law, including restrictions on dividends and re-investment

2) Requires an enabling statute

3) Grants, endowments, donations and contributions actually, directly and exclusively used for educational purposes are exempt from taxes, subject to conditions prescribed by law.

III. Academic Freedom

A. Educational Institutions

Schools have the freedom to determine:

1) Who may teach,

2) What may be taught,

3) How it shall be taught, and

4) Who may be admitted to study.

      B. Faculty members

1) Full freedom in research and in the publication of the results, subject to the adequate performance of their other academic duties.

2) Freedom in the classroom in discussing their subjects, but they should be careful not to introduce into their teaching controversial matter which has no relation to their subjects.

3) When faculty members speak or write in their capacity as citizens, then they are free from institutional censorship or discipline.

     C. Students

They have the right to enjoy in school the guarantees of the Bill of Rights.

    D. Limitations

1) Dominant police power of the State

2) Social interest of the community

    E. Budgetary Priority:

1). Education must be assigned the highest budgetary priority.

2). BUT: This command is not absolute.  Congress is free to determine what should be given budgetary priority in order to enable it to respond to the imperatives of national interest and for the attainment of other state policies or objectives.

Religious Education in Public Schools:

Religion may be taught in public schools subject to the following requisites:

1) Express written option by parents and guardians;

2) Taught within regular class hours;

3) Instructors are designated and approved by the proper religious authorities; and

4) WITHOUT ADDITIONAL COST TO THE GOVERNMENT.

Section 6. Language

1) National language: Filipino

2) Official Languages: Filipino, and unless otherwise provided by law, English.

3) Regional languages are auxiliary to the official languages.

4 (Spanish and Arabic are promoted only on an optional and voluntary basis.

ARTICLE XVI – GENERAL PROVISIONS

Sections 1-2. Symbols of Nationality

1) Flag

  • Red, white, and blue.
  • With a sun and 3 stars
  • The design may be changed by constitutional amendment.

2) Congress may, by law, adopt a new:

(a) Name for the country,

(b) National anthem, or

(c) National seal.

Note: Law will take effect upon ratification by the people in a NATIONAL REFERENDUM.

Section 3.  State Immunity

Suability of State

1) The State cannot be sued without its consent.

2) When considered a suit against the State

a).  The Republic is sued by name;

b).  Suits against an un-incorporated government agency;

c).  Suit is against a government official, but is such that ultimate liability shall devolve on the government

i.  When a public officer acts in bad faith, or beyond the scope of his authority, he can be held personally liable for damages.

ii.  BUT:  If he acted pursuant to his official duties, without malice, negligence, or bad faith, they are not personally liable, and the suit is really one against the State.

3) This rule applies not only in favor of the Philippines but also in favor of foreign states.

4) The rule likewise prohibits a person from filing for interpleader, with the State as one of the defendants being compelled to interplead.

Consent to be sued

A. Express consent:

1). The law expressly grants the authority to sue the State or any of its agencies.

2). Examples:

a). A law creating a government body expressly providing that such body “may sue or be sued.”

b). Art. 2180 of the Civil Code, which creates liability against the State when it acts through a special agent.

B. Implied consent:

1). The State enters into a private contract.

a). The contract must be entered into by the proper officer and within the scope of his authority.

b). UNLESS:  The contract is merely incidental to the performance of a governmental function.

2). The State enters into an operation that is essentially a business operation.

a). UNLESS:  The operation is incidental to the performance of a governmental        function (e.g. arrastre services)

b). Thus, when the State conducts business operations through a GOCC, the latter can generally be sued, even if its charter contains no express “sue or be sued” clause.

3). Suit against an incorporated government agency.

a) This is because they generally conduct propriety business operations and have charters which grant them a separate juridical personality.

4). The State files suit against a private party.

UNLESS:  The suit is entered into only to resist a claim.

Garnishment of government funds:

1) GENERAL RULE:  NO.  Whether the money is deposited by way of general or special deposit, they remain government funds and are not subject to garnishment.

2) EXCEPTION:  A law or ordinance has been enacted appropriating a specific amount to pay a valid government obligation, then the money can be garnished.

Consent to be sued is not equivalent to consent to liability:

1) The Fact that the State consented to being sued does not mean that the State will ultimately be held liable.

2) Even if the case is decided against the State, an award cannot be satisfied by writs of execution or garnishment against public funds.  Reason:  No money shall be paid out of the public treasury unless pursuant to an appropriation made by law.

Section 4.  THE ARMED FORCES OF THE PHILIPPINES

Composition:

A citizen armed force

Prohibitions and disqualifications:

1) Military men cannot engage, directly or indirectly, in any partisan political activity, except to vote.

2) Members of the AFP in active service cannot be appointed to a civilian position in the government, including GOCCs or their subsidiaries.

The Chief of Staff:

1) Tour of duty: Not exceed to three years

2) EXCEPTION:  In times of war or other national emergency as declared by Congress, the President may extend such tour of duty.

ARTICLE XVII- AMENDMENTS OR REVISIONS

 

Definitions:

1) Amendment:  an alteration of one or a few specific provisions of the Constitution.  Its main purpose is to improve specific provisions of the Constitution.  The changes brought about by amendments will not affect the other provisions of the Constitution.

2) Revision:  An examination of the entire Constitution to determine how and to what extent it should be altered.  A revision implies substantive change, affecting the Constitution as a whole.

Constituent power v. Legislative power

1)      Constituent power is the power to formulate a Constitution or to propose amendments to or revisions of the Constitution and to ratify such proposal. Legislative power is the power to pass, repeal or amend or ordinary laws or statutes (as opposed to organic law).

2)      Constituent power is exercised by Congress (by special constitutional conferment), by a Constitutional Convention or Commission, by the people through initiative and referendum, and ultimately by sovereign electorate, whereas legislative power is an ordinary power of Congress and of the people, also through initiative and referendum.

3)      The exercise of constituent power does not need the approval of the Chief Executive, whereas the exercise of legislative power ordinarily needs the approval of the Chief Executive, except when done by people through initiative and referendum.

Three (3) steps necessary to give effect to amendments and revisions:

1) Proposal of amendments or revisions by the proper constituent assembly;

2) Submission of the proposed amendments or revisions; and

3) Ratification

Proposal of amendments:

Amendments may be proposed by:

A. Congress, acting as a constituent assembly, by a 3/4 vote of all its members.

  • The power of Congress to propose amendments is NOT part of its ordinary legislative power.
  • The only reason Congress can exercise such power is that the Constitution has granted it such power.

B. Constitutional Convention:

1) How a Constitutional Convention may be called

a). Congress may call a ConCon by a 2/3 vote of all its members; or

b). By a majority vote of all its members, Congress may submit to the electorate the question of whether to call a ConCon or not.

2) Choice of which constituent assembly (either Congress or ConCon) should initiate amendments and revisions is left to the discretion of Congress.  In other words, it is a political question.

3) BUT:  The manner of calling a ConCon is subject to judicial review, because the Constitution has provided for vote requirements.

4) If Congress, acting as a constituent assembly, calls for a ConCon but does not provide the details for the calling of such ConCon, Congress – exercising its ordinary legislative power – may supply such details.  But in so doing, Congress (as legislature) should not transgress the resolution of Congress acting as a constituent assemble.

5) Congress, as a constituent assembly and the ConCon have no power to appropriate money for their expenses.  Money may be spent from the treasury only to pursuant to an appropriation made by law.

C. People’s Initiative

1) Petition to propose such amendments must be signed be at least 12% of ALL registered voters.

2) Every legislative district represented by at least 3% of the registered voters therein.

3) Limitation:

It cannot be exercised oftener than once every 5 years.

Note:

1)      While the substance of the proposals made by each type of constituent assembly is not subject to judicial review, the manner the proposals are made is subject to judicial review.

2)      Since these constituent assemblies owe their existence to the Constitution, the courts may determine whether the assembly has acted in accordance with the Constitution.

3)      Examples of justiciable issues:

a)      Whether a proposal was approved by the required number of votes in Congress (acting as a constituent assembly).

b)      Whether the approved proposals were properly submitted to the people for ratification.

Proposal of Revisions

1)      By Congress, upon a vote of 3/4 of its members

2)      By a constitutional convention

Ratification

1)      Amendments and revisions proposed by Congress and/or by a ConCon:

a)      Valid when ratified by a MAJORITY of votes cast in a plebiscite.

b)      Plebiscite is held not earlier than 60 days nor later than 90 days from the approval of such amendments or revisions.

2)      Amendments proposed by the people via initiative:   

a)      Valid when ratified by a MAJORITY of votes cast in a plebiscite.

b)      Plebiscite is held not earlier than 60 days nor later than 90 days after the certification by COMELEC of the petition’s sufficiency

3)      Requisites of a valid ratification:

a)      Held in a plebiscite conducted under the election law;

b)      Supervised by the COMELEC; and

c)      Where only franchised voters (registered) voters take part.

4)      Issues regarding ratification:

a)      The Constitution does not require that amendments and revisions be submitted to the people in a special election. Thus, they may be submitted for ratification simultaneously with a general election.

b)      The determination of the conditions under which proposed amendments/revisions are submitted to the people falls within the legislative sphere. That Congress could have done better does not make the steps taken unconstitutional.

c)      All the proposed amendments/revisions made by the constituent assemblies must be submitted for ratification in one single plebiscite. There cannot be a piece-meal ratification of amendments/revisions.

d)      Presidential proclamation is NOT required for effectivity of amendments/revisions, UNLESS the proposed amendments/revisions so provide.

ARTICLE XVIII – TRANSITORY PROVISIONS

 

Effectivity of the 1987 Constitution

  • The 1987 Constitution took effect immediately upon its ratification.
  • According to the SC, this took place on February 2, 1987, which was the day the people cast their votes ratifying the Constitution.

Military bases agreements

1)      Renewals of military bases agreements must be through a strict treaty.

2)      Ratification of the agreement in a plebiscite is necessary only when Congress so requires.

3)      Section 25 of Article XVIII allows possible local deployment of only AMERICAN forces.