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Constitutional Law 2

Atty. Rovynne Jumao-as


Day 1 (Nov 20, 2012) By: Charmaine Incio (From 2012 MCQ Bar Questionnaire) Constitution is defined by Cooley as: a. a body of statutory, administrative and political provisions by which the three branches of government are defined; (does not) b. a body of rules and maxims in accordance with which the powers of sovereignty are habitually exercised; c. a body of rules and edicts emanating from the rulings of courts and written guidelines of the executive and the legislature by which government is governed; (does not) d. a body of interpretations and rules by which the three branches of government are judged for purposes of sovereign compliance with good corporate governance. (does not) Q: What is the Doctrine of Constitutional Supremacy? A: All laws must bow to the Constitution (Consti) because it is the fundamental law of the land. BASIC PRINCIPLES ON CONSTITUTIONAL LAW AND THE BILL OF RIGHTS A. NATURE OF THE CONSTITUTION

Q: Sec 10 of Art 12 contains 3 paragraphs. The SC that the 1 st and the 3rd pars are self-executing or not? A: Not self-executing. Q: The 2nd par w/c was invoked by MPH is? A: The only self-executing. Q: When will you say that it is self-executing? A: When it is complete on its terms and that we can invoke a right from that specific par/provision. Q: What is self-executing? A: Self-executing is when you can invoke a right from that provision and when that specific right is violated you can go to court and seek for redress. Q: That is, the right is judicially demandable w/o a need of what? A: Any enacting laws/legislation that will support such. Q: Not all provisions are self-executory, what are those provisions? A: Article 2 Statement of State Policies and Principles. Q: These will only serve as guidelines. Non self-executing means that? A: There is a need for a law for that to be enforceable. Case: Tanada vs. Angara (1997) Q: It is about a XXX (not clear) agreement and the petitioners are questioning the validity of the agreement that it violates the Consti particularly certain provisions under Article 2. What is the ruling of SC? A: The SC ruled that it should be dismissed. Q: The petitioners are invoking the provision in A2 particularly the Filipino First Policy. Why did they dismiss the case? Are the petitioners correct in invoking A2? A: The SC ruled otherwise because A2 is non-self executing. When you read A2 it must be read together w/ the other provisions of the Consti. The petitioners even cited Sec10 of A12. When you the declaration of principles you must read it along w/ the other provisions. Q: Can you remember the provision in this case that was declared as self-executing by the SC? A: the doctrine of inter-generational policy. In case of Oposa V Factoran. The right to balance ecology. The SC held that that particular provision is self-executing. Meaning, there is no need for you to go into other existing laws.

A Constitution should have 3 essential parts: 1. 2. 3. Constitution of Government- 3 branches of govt Constitution of Liberty- Bill of Rights Constitution of Sovereignty Amendment and Repeal

Definition of Philippine Constitution A written instrument whereby the powers of the government are established, written and defined and by which these are distributed to several department for a more effective service and exercise for the benefit of the body politic.

Essence of Government To ensure that the people who drafted the Constitution be made to enjoy their freedom; The government is supposed to be the defender of our freedom. Abuse of government would be curtailemtn of freedom vis--vis Abuse of freedom could also be disobedience to the government. If we limit our Constitution on the Constitution of government, how are we supposed to enfrorce or invoke our freedom? We have now the BILL OF RIGHTS.

CONSTRUCTION OF THE CONSTITUTION

BILL OF RIGHTS As an essential part of a good Constitution- the Bill of Rights is an enumeration and of a declaration of an individuals rights against violations of the government. It is a charter or liberty for the individual and a limitation of the powers of the government. [ a constitutional limit of the powers of the government; safeguard against abuse of power] In the context of a government protecting a right, how should we understand the Constitution? Case: Manila Prince Hotel vs. GSIS (1997) Q: Between the Renong Berhad and MPH, GSIS must choose? A: The Filipino firm.

The GENERAL RULE is that the provisions here are selfexecuting. Otherwise, the effectivity of the Consti would be left in the discretion of the Congress and would be dependent WON the Congress will enact a law. So it must be that the provisions of the Consti are self-executing. The exemption is that, if the provision itself provides that it is to be effected only if there is an enabling law. Example is the provision on dual allegiance w/c is inimical and must be dealt w/ in accordance w/ the law. In other words, if there is no law yet then you have no violation if you have dual allegiance because it is not yet self-executing. Thats the Conti in general. On Bill of Rights PBMEO V PBMCI (1973)

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Constitutional Law 2
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Q: The demonstration is against the? A: Pasig Police not on the company. Q: they left their work, whats the consequence of their actions? A: they were terminated. Q: whats the ruling of CIR (industrial relation)? Is the termination valid? A: PBMEO was found guilty of bargaining in bad faith. Case went to SC. Q: is this a labor issue? Why? A: no. This is a mass demonstration against the Pasig Police not against the employer. Thats why we are talking about the bill of rights (BOR). Q: why the CIR ruled in favor of the company? Surely the company also has its rights. Is it conflict w/ the freedom of expression etc? M: This case talks about conflicts of 2 rights both protected by the BOR. Human rights v property rights of the company. But the ruling of the SC is that the human rights are supreme over the property rights because the latter is prescribed by prescription while the former is imprescriptible so it must be prevail over the latter. So in this case even if the rights are protected equally there is still a hierarchy of rights and ultimately human rights prevail. Q: under the Consti, whats the effect if there is no warrant? A: that would be a violation of the consti right of being secured against the unreasonable search and seizure. Q: what would be the effect of that? A: that would be inadmissible as evidence. Q: the ruling then? A: Marti cannot invoke such Conti right of unreasonable search and seizure and private communication because it was not done by a public official/authority but by a private person. These rights can only be invoke had it been done by a public authority. The BOR therefore can only be invoked against the State. M: the BOR is a proscription designed as protection for the people against the acts of the State. He cannot claim the BOR against Mr. Reyes who is a private individual. It is not a set of rights invoke against another individual. This covers violations of the State against the citizens. If violations against the individual against another individual that would be Civil Law. WATEROUS DRUG VS. NLRC (1997) Q: between Catolico and her employer, was she dismissed? A: she was dismissed. Q: so she filed a case of illegal dismissal. Then NLRC held? A: NLRC affirmed the findings of the Labor Arbiter. There was failure on the part of the company to show Catolicos dishonesty. The issue is WON there is a violation Consti rights. Q: Whats the right? A: Unlawful seizure and searches. Q: whats the evidence? A: the open check and an opened envelope that was alleged to be given to her as a refund of the overprice. M: thats the only evidence. According to her it is inadmissible because it was obtain w/o proper search warrant. If it is inadmissible, there would be no evidence against her. If there is no evidence against her the dismissal will be illegal. The court held that the BOR cannot be invoke w/ regard to the unlawful search because from People V Marti, the court held in this case that the BOR protect the citizen from unreasonable searches and seizures perpetrated by private individual. However, the court in this case emphasized that it is not true that citizens dont have recourse for such assaults. They held that on the contrary such invasion of BOR is both liable for criminal and civil liabilities on the part of the perpetrator. The distinction is when it is violated by another individual you can claim right under the Civil Law or when it is a violation of law and there is a penalty you can claim it under Crim Laws. But if it is a violation BY THE STATE against YOU, you can claim that right under the BOR. YRASUEGI VS. PAL (2008) The superiority of these freedoms over property rights is underscored by the fact that a mere reasonable or rational relation between the means employed by the law and its object or purpose that the law is neither arbitrary nor discriminatory nor oppressive would suffice to validate a law which restricts or impairs property rights. 12 Q: how his weight related to his work? Why? A: flight safety. Weight would affect his performance in case of emergency during flights. Q: he is invoking his Consti right. Whats that? A: People protection as guaranteed by the Consti. Meaning against discrimination. But here he failed to substantiate that there was discrimination. FILOTEO VS. SANDIGANBAYAN (1996) Q: was he convicted? A: yes. Q: whats the basis of his convictions? A: extra-judicial confessions Q: Meaning?

Excerpt from the Case:


(5) While the Bill of Rights also protects property rights, the primacy of human rights over property rights is recognized. 8 Because these freedoms are "delicate and vulnerable, as well as supremely precious in our society" and the "threat of sanctions may deter their exercise almost as potently as the actual application of sanctions," they "need breathing space to survive," permitting government regulation only "with narrow specificity." 9 Property and property rights can be lost thru prescription; but human rights are imprescriptible. If human rights are extinguished by the passage of time, then the Bill of Rights is a useless attempt to limit the power of government and ceases to be an efficacious shield against the tyranny of officials, of majorities, of the influential and powerful, and of oligarchs political, economic or otherwise. In the hierarchy of civil liberties, the rights of free expression and of assembly occupy a preferred position as they are essential to the preservation and vitality of our civil and political institutions; 10 and such priority "gives these liberties the sanctity and the sanction not permitting dubious intrusions." 11

PEOPLE VS. MARTI (1991) Q: before a search and seizure can be had, what is reqd? A: warrant Q: when the package was opened is there a warrant? A: no warrant.

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A: xxx (not clear) Q: Extrajudicial confessions made by the police officers. These confessions were reduced into writing as evidence against him. He was convicted. Whats his ground for appealing? A: xxx Q: whats the basis of his contentions? A: 1987 Consti, provides that Section 12. 1. Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. No counsel was around but extra-judicial questions were taken. Even if it was voluntary accdng to him such is not assisted by a counsel. But the confession was taken in 1982. The court said he cannot be covered xxx. M: Another rule in construction of consti is that it should be interpreted prospectively. Even if the extrajudicial confession was made w/o counsel at that moment that it was taken there was no violation of the Consti yet. It was still under the 1973-consti w/c this right cannot be found in the 1987 consti. Q: who states that the executive is wrong or that the legis dept is wrong? A: the judiciary. Q: what is judicial power? A: article 2 sec 1 Locus Standi. That the party will sustain or sustained injury from that act. Thats the direct injury test. But in jurisprudence the SC allowed tax payers suit, voters suit and citizens suit. Earliest opportunity. Cases filed on the lowest court, it must be raise there. If not raised, that would not be tackled during trial. If not tackled, you cannot claim that during appeal. If not claim during appeal the more you cannot change the entire theory of the case when you reach the SC. Lis mota. The issue is unavoidable. Every act of the pres or the legislative (for instance) are presumed to be constitutional. The SC will only come in and say that it is not constitutional if that is the lis mota of the case. Meaning, if there are other grounds by w/c the SC can decide the case w/o touching the issue of constitutionality the SC can do it. It will defer the issue constitutionality until later or only when they cannot avoid the issue constitutionality because the judiciary is supposed to respect the presumption of constitutionality. So the SC can only determine the issue of constitutionality only when it is now the very lis mota of the case. That is, the SC cannot decide the case in some other grounds. It is already unavoidable. REVIEW: (taken from previous consti 2 notes) BASIC PRINCIPLES 1. The Constitution is the supreme law of the land and all laws must bow to it. Otherwise, any law, act/enactment shall be considered null and void. In construing the Constitution, unless it is expressly provided that a legislative act is necessary to enforce a Consitutional mandate, the presumption is that ALL PROVISIONS OF THE CONSTITUTION ARE SELFEXECUTING. A provision of the Constitution should be presumed self-executing unless it necessarily provides that is needs a legislative enactment for it to be effective. Non-self executing: Usually, the provision would start with, as provided for by law, Congress must enact.. It must be understood that the Constitution is drafted on the pretext that the Consti already embodies a code of effective laws. It has an effect upon the people in the same way that laws have that effect upon the people. If the constitutional provisions are construed as nonself-executing, the Constitution would be dependent on the action of the legislative department and its effectivity primarily rest on WON Congress will enact a law. The legislative department is not the Consti. The Consti was made by the people and that should already be given effect. If that would be otherwise, the legislative department would have then the power to ignore and practically nullify the mandate of the fundamental law if its effectivity would be dependent on the action of the Congress. A provision which lays down a general principle such as that of Article 2 of the 1987 Constitution is non-selfexecuting. By the title itself, Art. 2 are the general principles of the Constitution. There is no conflict actually. In the first, when there is a mandate, all provisions should be presumed to be self-executing. If the provision partakes of a general principle, then it requires legislative enactment- therefore, NSE. E.g. Article II- which part is declared as selfexecuting?

2.

Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and 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.
General Definition of Judicial Power 1987 Consti expanded it. Why expanded? Because it can now check the acts of the other branch of the govt. Some says that it is a violation of separation of power. But in this case, we say that it is not in fact we have expanded it and brought it to the Consti (thats why we call it expanded judicial power). Q: So what s the power of judicial review? A: So when you ask the constitution to determine the constitutionality of particular act of other department eg exec agreement (exec dept) or constitutionality of laws (legis dept). when you invoke that power you are invoking the power of judicial review. In that sense, only the SC can declare a particular act of other dept as unconstitutional. So you distinguish that to the judicial power. The power of judicial review is just an aspect of judicial power. So when you say judicial review put into mind that the question will only be constitutionality. Since it is determining acts of other depts the SC will not exercise this power worklessly because it could be encroachment in the separation of powers. So there are determinants whether they will entertain the consti issues. Actual case/controversy w/c means there is legal rights invoke. Ripe. Meaning, you cannot ask if that would only be for educational purposes.

3.

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Answer: RIGHT TO ECOLOGY AND ENVIRONMENT because of intergenerational responsibility. dependent to the discretion of the congress WON to effective of the provision. But in some instances there are provisions which are not self-executing it means that there is a need of legislation to give effect to these provisions. In other words, you can claim rights under these provisions for it is not judicially determinable. It is just a declaration of state policy and nothing more. Another rule in construing the constitution is that it is prospective in application and it cannot be given a retroactive effect. When a right does not exist in the moment you cannot invoke that constitution wherein the right exist. Ex. Is the right to counsel, when giving/ or waiving the right to counsel must be in the presence of a lawyer/counsel it came out only during the 1987 constitution and when the confession was taken prior to that, even if you were tried in the 1987 constitution, you cannot claim such right under the new constitution.

4.

Human rights prevail or are given primacy over property rights. In fact, property rights could prescribe. E.g. recovery of possession. If you dont exercise that, you lose your right to recover. In human rights, it does not prescribe. The BOR govern the relationship between the individual and the State. Therefore it is not meant to be invoked against acts committed by private individuals. In the absence of governmental interference, the liberties guaranteed by the BOR cant be invoked against the state. The BOR can only be invoked against governmental acts. It is designed as a protection by the individual against governmental acts and not by acts of an individual against another individual. What is the persons relief then if a right is violated by another private individual? Civil and crim laws which has sanctions and penalties against these violations. You cannot really invoke your constitutional rights based on BOR if the one violating your right is a private individual. Constitution/ Bill of Rights may only be given prospective effect.

5.

BILL OF RIGHTS We said that bill of rights is against the state, it is a proscription against the state action. It limits the action of the state. So when there is no governmental interference , one cannot invoke the bill of rights. If it is a violation of an individual by a private person, one can claimed relief in our civil laws or criminal laws. But if it is the state that violates the rights of individual, you go to your constitutional particularly the bill of rights. Another principle is the hierarchy of rights. The highest in the hierarchy is the human rights and then comes the property rights. But when it comes to human rights the freedom of expression takes the highest place in the hierarchy. WHEN THE LAW IS DECLARED AS UNCONSTITUTIONAL WHAT WOULD BE THE EFFECT? We have two effects. The Supreme Court can apply either:

6.

Classification of Rights Civil Rights 2. Political Rights 4. Social and Economic Rights 5. Human rights Qualities and essential parts of a good written Constitution

Every failure brings with it the seed of an equivalent success.


Napoleon Hill-

Orthodox view, or Modern view

Day 2

Transcribed by: Glowing Gloria


Yesterday we reviewed the basic concept of the constitution. That it is the basic law of the land. We have the doctrine of constitutional supremacy that all statutes and relations must conform to it. Manila Prince Hotel vs GSIS In the case of Manila Prince hotel, based on the doctrine of constitutional supremacy, the constitution is deemed written in the law and the provisions of the contract. PARTS OF THE CONSTITUTION In the declaration of constitutionality, the Supreme Court exercises the power of judicial review which is part and parcel of judicial power. We also discuss construction of the constitution. RULE OF CONSTRUING GR: The provisions of the constitution should be construed as self executing otherwise, it will deem be

Orthodox view- an unconstitutional law is not a law. It never exist therefore there can be no right that may arise under such law. Modern view/operative fact doctrine- that prior to its declaration of its unconstitutionality, the law is under operation. Therefore, those who are bound to follow it must follow the said law prior to its declaration of unconstitutionality. THREE FUNDAMENTAL AND INHERENT POWERS OF THE STATE Police power Power of expropriation Power of Taxation Police power- it is the power to regulate liberty and property for the purpose of general welfare. It is the power of the state to enact legislation in relation to person and properties as may promote public health, public morals and public safety and the general welfare and convenience of the people. ED- it is the power of the state to forcibly take private property for purposes of public purpose provided just compensation is duly served.

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TAXATION- here the state can forcibly require contribution from the members of the society for the maintenance of the government. Any force contribution. SIMILARITIES OF THESE POWERS 1ST- All of them are inherent in the state. It existence because the state exist. In other words, these powers are not dependent in the grant of power in the fundamental law of the land (Constitution). It means that these takes place the moment that the state exists. 2nd These powers are indispensible. To destroy it would be to destroy the very purpose of the state if it could be deprived of its competence to promote the general welfare, competence to demand contribution, and competence to forcibly take private property for public purpose use. These powers are necessary for the continuance and existence of the state. The state cannot exist without these powers. 3rd all of these powers are methods by which the state interfere with private rights. When the state exercise police power say it prohibits smoking, when the state prohibits smoking to public places, it takes away the ones right to smoke. So this is one way to interfere private rights. When the state for example takes your property forcibly, it is one way of interfering of your right to enjoy your property. Recall again that the Bills of rights are the proscriptions of the bill of rights and the provisions therewith, serves as the defense to these methods where the state interferes with private rights. 4TH- each of these powers presupposes compensation. The state takes something away, you get something in return. In the exercises of taxation for example, what is the return? Infrastructures and promotion of governments projects dba. In the exercise of eminent domain, just compensation dba. It is guaranteed by the constitution the payment of just compensation. In the exercised of police power, the compensation will not be directly felt. Example requiring the use of seat belt, it is an exercise of police power. The benefit will not be directly felt unless you meet an accident and you will say kamshamida state 5th- these are primarily exercised by the legislative department. These are powers by the state and it can only be expressed through laws. Now lets go to police power POLICE POWER It is the power of the state to enact laws or regulations. Taking quo of that, it is the power exercised by the legislative body through enactment of a law or regulation. The law and regulation is in relation.. The purpose is to provide for the general welfare. Public health, morals, safety and convenience of the people. PP is inherent power of the state to prohibit any harmful to the confort and dsafety and wekfare of the society. It is the power of promoting the general welfare by restraining and regulating liberty and property. CHARACTERISTICS OF POLICE POWER 1st it is the most persuasive. It affects almost all aspects of life. I always say that police power affect one form womb to tomb. From the moment you are born the state requires for you to be registered in the LCR. The moment that you are called by the creator, kailangan parin mag- registered. It affects all kahit magwalk lang along the street, kailangan maga walk sa pedestrian lane. 2nd It is the least limitable. It cannot be limited by treaty or by any contract. As we cannot foresee incidents, the state cannot be limited in its duty to secure the general welfare. The constitution therefore does not define the scope of police power. Like in the case of the anti-cybercrime law. Before the concept of the crime virtually has not be thought of. Is this covers the police power of the state? Yes (yes yoh) It is because police power is dynamic and least limitable. 3rd it can be exercised through the use the power of taxation and the power of eminent domain. In other words the state can exercised the power of police power regulate rights prohibits acts through the use of power of taxation and power of eminent domain. How Example: When the state wants to promote public health and prohibits smoking, it can do it by directly prohibiting smoking or by increasing taxes in cigarettes. If the state wants to protect the youth from alcoholism, the state can increase the taxes on alcoholic beverages. Although collaterally, there is an increase of public funds, the main purpose is regulation. It is more on the exercise of police power rather than the exercise of the power of taxation. When the state, provide for equal distribution of agricultural lands, it can do it by expropriating privately own. Normally, that would be an exercised of power of ED but since the main purpose is the equal distribution of agricultural lands, in promotion of general welfare; it is an exercise of PP. It is a police power exercise in the power of ED. Lets go to the cases>>>> ERMITA VS CITY OF MANILA GlowingGLoriaNotes(GGN): - In the case of Ermita Malate Hotel Operators v. Mayor of Manila, take note this was way back in the 60s. This does not hold true at present. You know the SC even has to adjust to the changing time. And so in this ordinance enacted by the municipality of manila, the ordinance prohibited persons from entering the premises of any of the rooms of any of the hotels, motels, inns, pension houses located in Ermita Malate unless he registered in a book registry located at the lobby at the hotel and in no case may any minor be allowed, be admitted to any of the premises or rooms of such hotels without being accompanied by his parent or guardian. You can just imagine this ordinance is passed here. So certainly at that time, the Sc ruled for the validity of this ordinance because the objective here is to promote public morals. So it is in safeguarding morality and here the SC observed the increasing incidents of prostitution, fornication, because of the establishment of these hotels, motels in this area.--- Attys Elman Lectures-FACTS : An ordinance was passed by then the Municipality of manila providing for the increase of the license fee for those hotels along ermita and malate in addition the ordinace also stated that in no case any person be allowed to enter the premise and be admitted in any of the rooms without registering in a book registry which woul be situated in the lobby open in public view and it is further provided that in no case should any person below 18 years of age be admitted to any rooms without being accommodated by his parents or guardians. This was so contested by Petitioner representing 18 hotels in the Ermita Malate area. The following are their contentions: that Section 1 of the challenged ordinance is unconstitutional

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and void for being unreasonable and violative of due process insofar as it would impose P6,000.00 fee per annum for first class motels and P4,500.00 for second class motels;( License fee increase) that the provision in the same section which would require the owner, manager, not to entertain/accept costumer without signing a record book in the lobby of the hotel open to public is unconstitutional on due process grounds, and likewise for the alleged invasion of the right to privacy and the guaranty against self-incrimination; that Section 2 of the challenged ordinance classifying motels into two classes and requiring the maintenance of certain minimum facilities in first class motels such as a telephone in each room, a dining room or, restaurant and laundry similarly offends against the due process clause for being arbitrary, unreasonable and oppressive, a; that prohibiting a person less than 18 years old from being accepted in such hotels, motels, unless accompanied by parents or a lawful guardian runs counter to the due process guaranty for lack of certainty and for its unreasonable, arbitrary and oppressive character; and that insofar as the penalty provided automatic cancellation of the license of the offended party, in effect causing the destruction of the business and loss of its investments, there is once again a transgression of the due process clause. SC RULED upholding the constitutionality of the said ordinance. The following are the reasons in upholding the said ordinance: There being a presumption of validity of the ordinance, the necessity for evidence to rebut it is unavoidable, unless the statute or ordinance is void on its face which is not the case here. No such factual foundation being laid in the present case, the lower court deciding the matter on the pleadings and the stipulation of facts, the presumption of validity must prevail and the judgment against the ordinance set aside. The Petitioners assert with plausibility that on its face the ordinance is fatally defective as being repugnant to the due process clause of the Constitution must likewise fail. ( Halos tanan rason nalng nila kay against due process for being vague lage daw). The mantle of protection associated with the due process guaranty does not cover petitioners. There can be a violation of due process if the said ordinance is unreasonable etc. This particular manifestation of a police power measure being specifically aimed to safeguard public morals is immune from such imputation of nullity resting purely on conjecture and unsupported by anything of substance. ( wala evidence to prove its nullity on the grounds of being a unreasonable) LICENSE FEE INCREASE. The increase in the licensed fees was intended to discourage "establishments of the kind from operating for purpose other than legal" and at the same time, to increase "the income of the city government." It would appear therefore that the stipulation of facts, far from sustaining any attack against the validity of the ordinance, argues eloquently for it. o As was explained more in detail in the above Cu Unjieng case: (2) Licenses for non-useful occupations are also incidental to the police power and the right to exact a fee may be implied from the power to license and regulate, but in fixing amount of the license fees the municipal corporations are allowed a much wider discretion in this class of cases than in the former, and aside from applying the well-known legal principle that municipal ordinances must not be unreasonable, oppressive, or tyrannical, courts have, as a general rule, declined to interfere with such discretion. The desirability of imposing restraint upon the number of persons who might otherwise engage in non-useful enterprises is, of course, generally an important factor in the determination of the amount of this kind of license fee. Hence license fees clearly in the nature of privilege taxes for revenue have frequently been upheld, especially in of licenses for the sale of liquors. In fact, in the latter cases the fees have rarely been declared unreasonable.23 GGN: Notes from somewhere. Government can take away a license and increase the cost of license fees even to prohibitive levels, if public interest dictates so, without any constitutional violations.

RIGHT TO PRIVACY AND RIGHT AGAINST SELF INCRIMINATION. There is no occasion to consider even cursorily the alleged invasion of the right of privacy or the prohibition against self-incrimination. Petitioners obviously are not the proper parties to do so. Nor may such an incurable defect be remedied by an accommodating intervenor "who has always taken advantage of as he exclusively relies on, the facilities, services and accommodations offered by petitionermotels. AS TO THE ARGUMENT THAT IT IS A RESTRICTION TO CONTRACT. Nor does the restriction on the freedom to contract, insofar as the challenged ordinance makes it unlawful for the owner of hotel or inns etc, to lease or rent rooms more than twice every 24 hours. Again, such is not a transgression against the command of due process. It is neither unreasonable nor arbitrary. It was intended to curb the opportunity for the immoral or illegitimate use. How could it then be arbitrary or oppressive when there appears a correspondence between the undeniable existence of an undesirable situation and the legislative attempt at correction. The mere fact, that some individuals in the community may be deprived of their present business or a particular mode of earning a living cannot prevent the exercise of the police power. As was said in a case, persons licensed to pursue occupations which may in the public need and interest be affected by the exercise of the police power embark in these occupations subject to the disadvantages which may result from the legal exercise of that power THE SAID ORDINANCE IS A VALID EXERCISE OF POLICE POWER. The objective here is to safeguard of public morals the SC took notice of the increase in prostitution attributed one of the reasons is the increase of motels in the said area. RECITATION: What is the ruling of SC? Would you agree or would you like to disagree? This case was on 1967, today it will not apply because the concept of morality is dynamic (White light case). In this case SC declared that such ordinance is very valid for it is in for the purpose of public morals. It is protects against immorality, prostitution and adultery and fornication. TAXI OPERATORS VS BOT GlowingGlowingNotes (GGN) BOT issued a circular. What was issued here is a circular in performing police power and not an ordinance kay dili man siya LGU. BOT issued an circular mandating that taxi 6 years old should be banned from operating. The SC ruled that in the absence of any constitutional infirmity the said circular is valid on the ground of general welfare in safety and welfare of the society.

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thereby certain groups may plausibly assert that their interests are disregarded".

Facts: BOT of Manila issued a memorandum circular which provides taxi units with year models over six (6) years old are now banned from operating as public utilities in Metro Manila (considered as automatically dropped as public utilities and, therefore, do not require any further dropping order from the BOT.) Likewise taxi units within the NCR having year models over 6 years old shall be refused registration. Petitioner contends That they were denied procedural due process, on the ground that they were not caged upon to submit their position papers, nor were they ever summoned to attend any conference prior to the issuance of the questioned BOT Circular. That fixing the ceiling at six (6) years is arbitrary and oppressive because the roadworthiness of taxicabs depends upon their kind of maintenance and the use to which they are subjected, and, therefore, their actual physical condition should be taken into consideration at the time of registration. ( depende sa pag-alaga sa taxi ) That the Circular in question violates their right to equal protection of the law because the same is being enforced in Metro Manila only and is directed solely towards the taxi industry. SC Ruled: The said Circular is valid exercised of police power on the following grounds: IT DOES NOT VIOLATE PROCEDURAL PROCESS. BOT gives it a wide range of choice in gathering necessary information or data in the formulation of any policy, plan or program. It is not mandatory that it should first call a conference or require the submission of position papers or other documents from operators or persons who may be affected, this being only one of the options open to the Board, which is given wide discretionary authority. Petitioners cannot justifiably claim, therefore, that they were deprived of procedural due process. Neither can they state with certainty that public respondents had not availed of other sources of inquiry prior to issuing the challenged Circulars. operators of public conveyances are not the only primary sources of the data and information that may be desired by the BOT. AS TO THE ISSUE NA DAPAT ACTUAL CONDITION SA TAXI ANG DAPAT ICONSIDER IN REGISTRATION. A reasonable standard must be adopted to apply to a vehicles affected uniformly, fairly, and justly. The span of six years supplies that reasonable standard. The product of experience shows that by that time taxis have fully depreciated, their cost recovered, and a fair return on investment obtained. They are also generally dilapidated and no longer fit for safe and comfortable service to the public especially considering that they are in continuous operation practically 24 hours every day in three shifts of eight hours per shift. With that standard of reasonableness and absence of arbitrariness, the requirement of due process has been met. EQUAL PROTECTION. This is of common knowledge. Considering that traffic conditions (grabe sa Manila) are not the same in every city, a substantial distinction exists so that infringement of the equal protection clause can hardly be successfully claimed. The State, in the exercise, of its police power, can prescribe regulations to promote the health, morals, peace, good order, safety and general welfare of the people. It can prohibit all things hurtful to comfort, safety and welfa re of society. 5 It may also regulate property rights. 6 In the language of Chief Justice Enrique M. Fernando "the necessities imposed by public welfare may justify the exercise of governmental authority to regulate even if

Atty Jumao-as : What about the argument that the criteria of 6 years is suppressive because the roadworthiness of a car depends upon its maintenance? Why not based it on the actual performance of the taxi? ( read the above digest) So class, there is this reasonable standard in the case that the 6 years roadworthiness of the taxi. In particular, taxis are used 24 hours a day not like private cars diba na work and home lang and even it is still 6 years old it is still new. In the case at bar, there must be a reasonable standard. To make the actual physical condition of the taxi as the criteria would open up subjectively and correction and inclusion in fact. SC said it is a valid criteria ( yung 6 years criteria) See, the state can even dictate how can you use your car for business. Taht is police power. INCHONG vs HERNANDEZ

( Sari-sari store case)


NOTE: Girls, dili ko confident ani akong digest kay dili ko ganahan sa case. Facts: Republic Act No. 1180 is entitled "An Act to Regulate the Retail Business." In effect it nationalizes the retail trade business. The main provisions of the Act are: (1) a prohibition against aliens from engaging directly or indirectly in the retail trade; (2) an exception from the above prohibition in favor of aliens actually engaged in said business on May 15, 1954, who are allowed to continue to engaged therein, unless their licenses are forfeited in accordance with the law, (3) an exception therefrom in favor of citizens and juridical entities of the United States; (4) a provision for the forfeiture of licenses (to engage in the retail business) for violation of the laws on nationalization, control weights and measures and labor and other laws relating to trade, commerce and industry; (5) a prohibition against the establishment or opening by aliens actually engaged in the retail business of additional stores or branches of retail business, (6) a provision requiring aliens actually engaged in the retail business to present for registration with the proper authorities a verified statement concerning their businesses, giving, among other matters, the nature of the business, their assets and liabilities and their offices and principal offices of judicial entities; and (7) a provision allowing the heirs of aliens now engaged in the retail business who die, to continue such business for a period of six months for purposes of liquidation. Petitioner contends: Petitioner attacks the constitutionality of the Act, contending that: (1) That its exercise in this instance is attended by a violation of the constitutional requirements of due process and equal protection of the laws (2) the Act violates international and treaty obligations of the Republic of the Philippines; (3) that the provisions of the Act against the transmission by aliens of their retail business thru hereditary succession, and those requiring 100% Filipino capitalization for a corporation or entity to entitle it to engage in the retail business, violate the spirit of Sections 1 and 5, Article XIII and Section 8 of Article XIV of the Constitution. SC ruled upholding the said law on the following grounds:

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IT IS A VALID EXERCISE OF POLICE POWER. It has been said the police power is so far - reaching in scope, that it has become almost impossible to limit its sweep. As it derives its existence from the very existence of the State itself, it does not need to be expressed or defined in its scope; it is said to be co extensive with self-protection and survival, and as such it is the most positive and active of all governmental processes, the most essential, insistent and illimitable. Otherwise stated, as we cannot foresee the needs and demands of public interest and welfare in this constantly changing and progressive world, so we cannot delimit beforehand the extent or scope of police power by which and through which the State seeks to attain or achieve interest or welfare. So it is that Constitutions do not define the scope or extent of the police power of the State; what they do is to set forth the limitations thereof. The most important of these are the due process clause and the equal protection clause. IT DOES NOT VIOLATE EQUAL PROTECTION CLAUSE: the power of the legislature to make distinctions and classifications among persons is not curtailed or denied by the equal protection of the laws clause. The legislative power admits of a wide scope of discretion, and a law can be violative of the constitutional limitation only when the classification is without reasonable basis. Aliens are under no special constitutional protection which forbids a classification otherwise justified simply because the limitation of the class falls along the lines of nationality. Broadly speaking, the difference in status between citizens and aliens constitutes a basis for reasonable classification in the exercise of police power. Aliens do not naturally possess the sympathetic consideration and regard for the customers with whom they come in daily contact, nor the patriotic desire to help bolster the nation's economy, except in so far as it enhances their profit, nor the loyalty and allegiance which the national owes to the land. The difference of aliens aim and purpose is a sufficient ground for distinction as to warrant classification. Note however, these constitutional guarantees which embody the essence of individual liberty and freedom in democracies, are not limited to citizens alone but are admittedly universal in their application, without regard to any differences of race, of color, or of nationality. But in the case at bar, valid ang classification. IT DOES NOT VIOLATE DUE PROCESS., The privilege (retailed business) has been so grossly abused by the alien, thru the illegitimate use of pernicious designs and practices, that he now enjoys a monopolistic control of the occupation and threatens a deadly stranglehold on the nation's economy endangering the national security in times of crisis and emergency. The law is not unreasonable. A cursory study of the provisions of the law immediately reveals how tolerant, how reasonable the Legislature has been. The law is made prospective and recognizes the right and privilege of those already engaged in the occupation to continue therein during the rest of their lives; and similar recognition of the right to continue is accorded associations of aliens. The right or privilege is denied to those only upon conviction of certain offenses. In the deliberations of the Court on this case, attention was called to the fact that the privilege should not have been denied to children and heirs of aliens now engaged in the retail trade. Such provision would defeat the law itself, its aims and purposes. Besides, the exercise of legislative discretion is not subject to judicial review. Furthermore, the test of the validity of a law attacked as a violation of due process is not its reasonableness, but its unreasonableness, and we find the provisions are not unreasonable. These principles also answer various other arguments raised against the law, some of which are: that the law does not promote general welfare; that thousands of aliens would be thrown out of employment; that prices will increase because of the elimination of competition; that there is no need for the legislation; that adequate replacement is problematical; that there may be general breakdown; that there would be repercussions from foreigners; etc. Many of these arguments are directed against the supposed wisdom of the law which lies solely within the legislative prerogative; they do not import invalidity. DOES NOT VIOLATE THE TREATY. But even supposing that the law infringes upon the said treaty, the treaty is always subject to qualification or amendment by a subsequent law and the same may never curtail or restrict the scope of the police power of the State CONCLUSION : SC hold that the disputed law was enacted to remedy a real actual threat and danger to national economy posed by alien dominance and control of the retail business and free citizens and country from dominance and control; that the enactment clearly falls within the scope of the police power of the State, thru which and by which it protects its own personality and insures its security and future; that the law does not violate the equal protection clause of the Constitution because sufficient grounds exist for the distinction between alien and citizen in the exercise of the occupation regulated, nor the due process of law clause, because the law is prospective in operation and recognizes the privilege of aliens already engaged in the occupation and reasonably protects their privilege.

ATTY JUMAO-AS- in this case, Aliens are prohibited to engaged in real trade business ( sari-sari store) pero pwede sila ug whole sale. The petitioners here are aliens kay sila nagfile na case kasi affected sila. What the law is trying to protect? DECS vs San Diego (1989) ( NMAT CASE) The case at bar involves the sentiments of a student graduate at the UE (BS in zoology). This is a petition that challenges the constitutionality of MECS Order No. 12, Series of 1972, containing the three-flunk rule in taking the NMAT. The additional grounds raised were due process and equal protection. There is also part of the argument involving her right to quality education. SC ruled upholding the constitutionality of MECS Order as a valid exercise of Police power on the following grounds: Police power is validly exercised if (a) the interests of the public generally, as distinguished from those of a particular class, require the interference of the State, and (b) the means employed are reasonably necessary to the attainment of the object sought to be accomplished and not unduly oppressive upon individuals. In other words, the proper exercise of the police power requires the concurrence of a lawful subject and a lawful method. The subject of the challenged regulation is certainly within the ambit of the police power. It is the right and indeed the responsibility of the State to insure that the medical profession is not infiltrated by incompetents to whom patients may unwarily entrust their lives and health. The method employed by the challenged regulation is not irrelevant to the purpose of the law nor is it arbitrary or oppressive. The three-flunk rule is intended to insulate the medical schools and ultimately the medical profession from the intrusion of those not qualified to be doctors. While every person is entitled to aspire to be a doctor, he does not have a constitutional right to be a doctor. This is true of any other calling in which the public interest is involved; and the closer the link, the longer the bridge to one's ambition. The State has the responsibility to harness its human resources and to see to it that they are not dissipated

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or, no less worse, not used at all. These resources must be applied in a manner that will best promote the common good while also giving the individual a sense of satisfaction. THE RIGHT TO QUALITY EDUCATION INVOKED BY THE PRIVATE RESPONDENT IS NOT ABSOLUTE. The Constitution also provides that "every citizen has the right to choose a profession or course of study, subject to fair, reasonable and equitable admission and academic requirements. The Court feels that it is not enough to simply invoke the right to quality education as a guarantee of the Constitution: one must show that he is entitled to it because of his preparation and promise. The private respondent has failed the NMAT five times. 7 While his persistence is noteworthy, to say the least, it is certainly misplaced, like a hopeless love. EQUAL PROTECTION CLAUSE: there is a substantial distinction exists between medical students and other students who are not subjected to the NMAT and the three-flunk rule. The medical profession directly affects the very lives of the people, unlike other careers which, for this reason, do not require more vigilant regulation. The accountant, for example, while belonging to an equally respectable profession, does not hold the same delicate responsibility as that of the physician and so need not be similarly treated. ATTY JUMAO-AS: The student is invoking his constitutional right. What is that? ( Right to quality education). Do you have a constitutional right to become a lawyer? (Ana ang gwapo nakung katapad na no daw kay mere privilege lng daw well i guess his right cheesssy) Why the SC is said he cannot be a doctor? One have the constitutional right to aspire for that profession but one does not have the constitutional right to practice for such profession if he does not qualify based on the qualifications as provided by law. The law has these qualifications as a means of regulations. The more your profession affects the general welfare , the more it is regulated. So in this case, the practice of medicine directly affects the practice of public health and welfare therefore the state has the right to regulate the practice of the profession and its starts by implementing qualifications of who are allowed to take the NMAT. This is the same in the study of law dba kasi may limit na ang examination of the bar. (3-bar flunk rule) CARLOS SUPERDRUG vs DSWD The state wants to promote the welfare of Senior citizen. How? By requiring the establishment to issue discounts. How much? 20%. In return what will the establishment get? They will get Tax deduction of the gross not even on the particular item. What will happen is that they will be spending more not for their benefit but for the benefit of the SC. In other words, private institution are ask to subsidized what would have been the function of the state to promote the welfare of the SC. Para bang may funds naman kayo bat pa kayo kukuha sa amin. So they question the validity of the law. SC held that their property rights of their income should yield to right of the state to ..welfare as stated in Article II section 10. Carlos Superdrug cannot assert their property right over the state in view of PP. The state can even ask private institution to subsidized programs of the government which i think if i would be the lawyer i will ask reconsideration of the case ( ) Because , if the police power is to regulate , iba ang case na ito for the state is asking for contribution from the capital itself. I think it is taken from the net but you ask for the deduction from the gross. WHO EXERCISES POLICE POWER? We said it is primary exercise by the legislature. Because it is the power to enact laws to regulate liberty and property for general welfare. The legislation however can delegate this power through proper delegation of legislative powers. Delegation of PP pwede sa president, admin bodies and LGU. Police power is an inherent attribute of sovereignty. It has been defined as the power vested by the Constitution in the legislature to make, ordain, and establish all manner of wholesome and reasonable laws, statutes and ordinances, either with penalties or without, not repugnant to the Constitution, as they shall judge to be for the good and welfare of the commonwealth, and for the subjects of the same. The power is plenary and its scope is vast and pervasive, reaching and justifying measures for public health, public safety, public morals, and the general welfare. It bears stressing that police power is lodged primarily in the National Legislature. It cannot be exercised by any group or body of individuals not possessing legislative power. The National Legislature, however, may delegate this power to the President and administrative boards as well as the lawmaking bodies of municipal corporations or local government units. Once delegated, the agents can exercise only such legislative powers as are conferred on them by the national lawmaking body. A local government is a "political subdivision of a nation or state which is constituted by law and has substantial control of local affairs." The Local Government Code of 1991 defines a local government unit as a "body politic and corporate." one endowed with powers as a political subdivision of the National Government and as a corporate entity representing the inhabitants of its territory. Local government units are the provinces, cities, municipalities and barangays. 19 They are also the territorial and political subdivisions of the state. 20 ( MMDA case) REVIEW CENTER vs ERMITA This is in relation to the leakage of the nursing board examination which leakage was sourced from the nursing board itself. The president issued an EO wherein she commanded the CHED to supervise review centers which are not degree granting institution. The CHED, under the law creating such, only supervise institutions of higher education. It does not cover review centers. Now it supervising review centers is the president exercising police power? SC ruled that she can only exercise that through a law that grants her to supervise educational institution. Unfortunately, the law that existed is that law that creates the CHED and the same limits the CHED only to institution of higher education. Therefore it does not cover review centers. Also in this case, the congress has not delegated Police power to the president to regulate review centers. The exercised of PP of the president therefore is invalid. TAXICAB operators VS. BOT The exercise of police power in this case was delegated in the BOT. So as long as there is a law granting the admin body to exercised Police power, that exercise in valid. RULE IN LOCAL GOVERNMENT UNITS- (LGU) The LGU as understand in our constitution is a government unit as a "body politic and corporate." It endowed with powers as a political subdivision of the National Government and as a corporate entity representing the inhabitants of its territory. Local government units are the provinces, cities, municipalities and barangays. They are also the territorial and political subdivisions of the state. The congress delegated the exercised of Police power in the LGU thru the local government code of 1991 particularly sec 16 of the general welfare clause: Sec. 16. General Welfare. Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers

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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. NOTE : Local government units exercise police power ONLY through their respective local legislative bodies . Ex. SB , SP Sanguniang barangays. THE MAYOR does not exercised police power. Take note of that. MMDA VS Bell Air Village MMDA here issued a resolution ordering the open up of the street in the bell air village for the purpose of solving traffic problems. Can he do that? NO. take note that MMDA is not a local government unit. Much more it is not a legislative body and has no legislative powers. It is only a development authority. If it wants to open up a street it should course it through the local government of Makati. MMDA is not a local sanggunian. NOTE: 1ST EXAM is on 1st SATURDAY OF January 2013. Recit: PPI vs COMELEC( Comelec Space case) Atty Jumao-as: So the COMELEC demand space from whom? (Publishers) It was argued by Petitioner it is tantamount to a taking without just compensation. The SC ultimately ruled in this case that there is no need yet for the comelec to exercise such power. Why? (there is no necessity- since it was not shown by the comelec that the petitioner was not willing to sell the said space) it other class , there would be a necessity to exercise of ED if the private owner is willing to sell such property. TELEBAP vs COMELEC ( Comelec Time Case) The Comelec is demanding this free airtime from whom? (TV and Radio Broadcast companies/networks) SC ruled that there is no necessity in the exercise of ED here, why? The subject of the taking here class in the air frequencies. Air Frequencies are allotted by the state to those who are qualified. Air frequencies are not a product. Therefore, air frequency is not a private property. In other words there is a necessity to exercised ED if there is a private property-owned otherwise there is no need to exercise such power. (Note: in the case at bar, what was subject to expropriation is the airwaves. SC ruled that what the petition mere own is the license over such franchise which is a mere privilege only. Air waves and Air frequencies are owned by the state in view of the concept of jura regalia. So here no necessity) WHO MAY EXERCISE THE POWER OF EMINENT DOMAIN The legal authority to exercised ED

Dont say you dont have enough time. You have exactly the same number of hours per day that were given to Helen Keller, Pasteur, Michaelangelo, Mother Teresea, Leonardo da Vinci, Thomas Jefferson, and Albert Einstein. H. Jackson Brown Jr.

Our greatest weakness lies in giving up. The most certain way to succeed is always to try just one more time. Thomas A. Edison

Ive seen dreams that move the mountains, hope that doesnt ever end, even when the sky is falling. Ive seen miracles just happen, silent prayers get answered, broken hearts become brand new Thats what faith can do ~ Kutless
______ DAY 3 lecture, November 27, 2012

We said primarily that it can be exercised by the legislative department via a LAW. Like police power however this can also be delegated. The power of ED can be delegated to the Executive branch, to the president. This can also be exercised by the LGU via its sanguniang or the local legislative body. It can also be delegated to public corporation. What are public corporations? These are government owned corporations which are imbued with corporate personality. They have their own state personality and own corporate powers example is the NHA, DCWD. It is like these corporation is engaged in business but is it owned by the government. ED can also be exercised by QUASI PUBLIC CORPORATION. A quasi-public corporation, these are actually privately owned corporation but they are engaged in the business of rendering public service. Usually more on public utilities. Ex. PLDT- it is privately own but its service , communication, is public utility. Why are they allowed? It is because when you collect public lines, it would require expropriation of private lands. We have also Davao Light. NOTE: Unlike police power, the power of eminent domain may be delegated in the quasi-public corporation. If this power is delegated, the scope of this authority is necessary narrower than that of the delegating authority or to the congress. Other than that the exercise of this power must be pursuant to strict compliance with the terms of the law delegating it. Once ED is exercise other than congress, the legal basis must be a LAW. There must be a law authorizing that body to exercise ED. Such exercise must be in the terms and conditions stipulated and provided for by law.

By: Glowing Gloria


EMINENT DOMAIN The power of the state to forcibly take private properties. Being inherent power of the state, there is no need the grant of the constitution or the fundamental law of the land. In fact, if there was a mention of such power in the constitution, it was for its limitation. As it is inherent power, this power is superior to individual rights but it cannot be overlook that individual need protection against its power and that protection is enshrined in our bill of rights. Before the state can exercise the power of ED as mentioned in the case of PPI vs COMELEC, the two-threshold requisites must be first determine namely: There must be a necessity- there would instances wherein there is no need to resort into the exervcsie of ED. Ex. PPI vs COMELEC

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ESTATE OF SUGUITAN VS CITY Recitation: What is the basis for exercise of this power, the legal basis, legal authority? It is the Local Government code-particularly SEC 19- It is not inherent power of the local government unit but it is delegated by the congress via a law and such law is in Sec 19 of RA 7160 the local government Code.

Section 19. Eminent Domain. - A local government unit may, through its chief executive and acting pursuant to an ordinance, exercise the power of eminent domain for public use, or purpose or welfare for the benefit of the poor and the landless, upon payment of just compensation, pursuant to the provisions of the Constitution and pertinent laws: Provided, however, That the power of eminent domain may not be exercised unless a valid and definite offer has been previously made to the owner, and such offer was not accepted: Provided, further, That the local government unit may immediately take possession of the property upon the filing of the expropriation proceedings and upon making a deposit with the proper court of at least fifteen percent (15%) of the fair market value of the property based on the current tax declaration of the property to be expropriated: Provided, finally, That, the amount to be paid for the expropriated property shall be determined by the proper court, based on the fair market value at the time of the taking of the property.
What are the conditions for the LGU to exercise ED under Sec 19? First, there must be an ordinance- the ordinance authorize must be chief executive Second, there must be for public use- benefit for the landless 3rd payment of just compensation 4th there must have been an offer but the same was not accepted. The particular circumstance here, the LGU issued a resolution and not an ordinance. So SC ruled that the exercise of the respondent city of ED is invalid in contravention with the law grating them such authority. An ordinance is a law, but a resolution is merely a declaration of the sentiment or opinion of a lawmaking body on a specific matter. An ordinance possesses a general and permanent character, but a resolution is temporary in nature. Additionally, the two are enacted differently a third reading is necessary for an ordinance, but not for a resolution, unless decided otherwise by a majority of all the Sanggunian members. There was a ruling in the RTC, that such resolution will suffice because according to the lower court the compliance of having an ordinance can be complied or complied by the respondent city subsequent issuance of an ordinance which is only necessary upon payment of JC. This is wrong. The LGC required an ordinance. It cannot be cured by subsequent issuance of an ordinance. Only an ordinance can authorize the Chief executive to exercise ED. It is incorrect to say that the ordinance is needed later for the payment of JC. It cannot pay the JC without the legal authority of exercising the power of eminent domain. So, here the exercise of ED is invalid for wanting of legal authority. ESTATE OF REYES VS CITY OF MANILA

Here, the city executed an expropriation case against the property own by Justice JB (JustineBeiber) Reyes. The circumstance here is that the property was sold to a private corporation. The private corporation was about to evict the occupants and then the city came. It exercise ED so that it can give such property to the occupants. There was compliance of the ordinance requirement and all the rest requirements. What is the purpose of such exercise? It is to give out to give land or for land reform housing program. It was argued by the petitioner, that despite of compliance of the requirements under the LGC, it is still improper for the city to exercise such power. SC ruled that, the LGU, other than the local government code, would still have to observe other existing and applicable laws. Unfortunately or fortunately, there is an existing law governoing the expropriation of private properties- RA 7279 (the Urban Development and Housing Act of 1992)Sec. 9. Priorities in the acquisition of Land Lands for socialized housing shall be acquired in the following order: (a) Those owned by the Government or any of its sub-divisions, instrumentalities, or agencies, including government-owned or controlled corporations and their subsidiaries; (b) Alienable lands of the public domain; (c) Unregistered or abandoned and idle lands; (d) Those within the declared Areas of Priority Development, Zonal Improvement sites, and Slum Improvement and Resettlement Program sites which have not yet been acquired; (e) Bagong Lipunan Improvement sites and Services or BLISS sites which have not yet been acquired; and (f) Privately-owned lands. So if the government authority would like to expropriate property for socialize housing program, the above-mentioned order must be complied. It must 1st consider publicly owned lands. And last of the list is the privately owned lands. Private lands has the last priority which means that only when all the rest are not available can it only be expropriated. In this case, the exercise of the delegated authority is still subject to existing laws. The LGUnits , not only the local government code but also other applicable laws. MCWD VS KINGS AND SON This case is an example of the exercise of ED by a GOCC ( local water district) under RA 8974. RA 8974 requires the following: first, its board of directors passed a resolution authorizing the expropriation, and; second, the exercise of the power of eminent domain was subjected to review by the LWUA. We have here an example a public corporation exercising power of eminent domain. They can exercise provide they have the legal basis. The legal basis here is RA 8974 and such law provides for its conditions. That is what we mean that the delegate exercising ED is subject to the terms and condition of that law delegating them such authority. NOTE: the power of ED is immense, superior and is superior over private rights and the limits can only be sought under the constitution. Limitations of Eminent Domain

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. (Bill of Rights) Section 9. Private property shall not be taken for public use without just compensation.
1st there must be payment of JC

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2nd- if the state takes a private property it must be solely for public use. 3rd observance of Due process THE CONCEPT OF TAKING Republic, as shown by the renewal of the lease contract from year to year, and by the provision in the lease contract whereby the Republic undertook to return the property to Castellvi when the lease was terminated. Neither was Castellvi deprived of all the beneficial enjoyment of the property, because the Republic was bound to pay, and had been paying, Castellvi the agreed monthly rentals until the time when it filed the complaint for eminent domain on June 26, 1959. The government entered into the property by means of a lease contract. NPC vs CA NPC entered into the property in 1978 and start the expropriation proceedings in 1992. It was the contention of NPC that taking is on 1978. Remember, that the determination of taking is necessary in order to determine the JC compensation, the law requires that the assessment of the value of JC shall be in the time of taking or the filing of expropriation case whichever is earlier. SC ruled that it was on 1992 upon filing the complaint. In this case, the petitioners entrance in 1978 was without intent to expropriate or was not

Taking under our own understanding entails the dispossession to


ones property to the other. But under the legal sense, there may be taking by the government without actual dispossession of the property and the title remains in the hands of the private owner. There is taking in the aforementioned situation because the actual owner is deprived of the beneficial use of the said property. There may be no dispossession but there is a burden on the part of the private owner, that is still a taking. Republic vs Castellvi SC here established the 5 requisites in order of WON or not there is a taking. 1. The expropriator must enter a private property. 2. the entrance into private property must be for more than a momentary period. "Momentary" means, "lasting but a moment; of but a moment's duration.- something that is oindefinte or more or less permanent. 3. The entry into the property should be under warrant or color of legal authority. 4. The property must be devoted to a public use or otherwise informally appropriated or injuriously affected. 5. The utilization of the property for public use must be in such a way as to oust the owner and deprive him of all beneficial enjoyment of the property. The government enters the property in 1947, but its start to have it expropriated only in 1959. When was there taking in 1947 when it entered the property or 1959? SC said its not on 1947, because the requistes are not complete no. 2,3,4 and 5 The expropriator must enter a private property. This circumstance is present in the instant case, when by virtue of the lease agreement the Republic, through the AFP, took possession of the property of Castellvi. the entrance into private property must be for more than a momentary period. "Momentary" means, "lasting but a moment; of but a moment's duration. The aforecited lease contract was for a period of one year, renewable from year to year. The entry on the property, under the lease, is temporary, and considered transitory. The fact that the Republic, through the AFP, constructed some installations of a permanent nature does not alter the fact that the entry into the land was transitory, or intended to last a year, although renewable from year to year by consent of 'The owner of the land. The entry into the property should be under warrant or color of legal authority. This circumstance in the "taking" may be considered as present in the instant case, because the Republic entered the Castellvi property as lessee. The property must be devoted to a public use or otherwise informally appropriated or injuriously affected. It may be conceded that the circumstance of the property being devoted to public use is present because the property was used by the air force of the AFP. The utilization of the property for public use must be in such a way as to oust the owner and deprive him of all beneficial enjoyment of the property. In the instant case, the entry of the Republic into the property and its utilization of the same for public use did not oust Castellvi and deprive her of all beneficial enjoyment of the property. Castellvi remained as owner, and was continuously recognized as owner by the

made under warrant or color of legal authority, for it believed the property was public
land covered by Proclamation No. 1354. The requisites of no. 3 is wanting. In this case, there was no taking at the time, NPC believed that such property was not own privately and such it was a public domain which is owned by the state. NPC at that time has no intention to expropriate the land believing it to be part of public domain. Why not in 1990? What happen in 1990? In 1990 they attempted to enter into a contract of sale. And SC ruled that is not the reckoning point. When the goevrnmnet enter into a contract of sale, is there an expropriation? NO. no necessity of expropriation because the private owner is willing to sell the property. Only in 1992 they exercise ED thus taking took place on 1992 and the value of the property must be assessed not on 1990, 1978 but on 1992. December 03, 2012

Transcribed by: Marlie Muoz

Last time we are talking about the ELEMENTS OF TAKING in the case of NPC vs CA

When was it that there was taking? The last case NPC vs CA, it is said there that there was NO TAKING, the element was lacking, the lack of authority to expropriate the property because NPC in that case there has the belief that the property donated or been used is owned by the public under a particular act or proclamation, so when they entered the property there was really no intention to expropriate the property. In fact they vehemently deny the private owners assertion that there should be just compensation. Thus, in the case it was not in 1978 there was NO TAKING but it was in 1992. In 1992, when the state or NPC file petition for expropriation, at that time they really have the intention to expropriate the property. They said also that TAKING is not to be understood in its literal sense, wherein there would be TAKING that you would dispossesses your property. There would still be TAKING even if the private owner retains ownership over the property. But if the private owner retains his property, he is subjected to a certain BURDEN, wherein he will be deprive of the beneficial use of the property there is TAKING.

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So the cases give us an example, NPC vs GUTTIERREZ and NPC vs IBRAHIM decided on 2007 and 2009 and REPUBLIC vs CA. NPC VS GUTTIERREZ What are the rights of the owner when it comes to lands? How far can a private owner enjoy the use of his land? In the Civil Code, in your PROPERTIES wala pa kayong properties noh?, the land owner will have the beneficial use and enjoyment of his property including the surface above the property and the surface below that property, as far as there would be beneficial use of that property, as far as the owner is protected in its use. So, in this case, even if the constructions are subterranean or even if it seems that it does not affect the beneficial use of the property by the owner, this is still a proper subject for expropriation. So thats the belief in the case of NPC vs Ibrahim decided on 2009, that is actually an off shoot of the earlier case in 2007. So, in 2007, the SC said that there should be JUST COMPENSATION BECAUSE THEY USE THE PROPERTY FOR PUBLIC USE. So, there is expropriation, even if there is only use of the remaining portion of the property. Now, in this case of NPC vs Ibrahim 2009, the NPC now in filing a case for certioraris asking to order the private owner to transfer the title to the NPC. WHY? The order in the earlier case is for NPC to pay, like in NPC vs GUTTIERREZ, to pay the value of the entire property. So NPC now argues that if you were order to pay the value of the entire property the corresponding effect or consequence is that the owner of the land should surrender the title of the property to us. Thats the usual say, why would we retain the ownership when there was already payment of the full value of that property and the SC said there, that could be TAKING WITHOUT NECESSARILY DISPOSSESSING the private owner of his obligation entitled to that property and this is one instances. The earlier case did not order the NPC to pay full compensation and the private owner to transfer the title, there is no such order in the earlier case and if there is no such order, then it is not mandatory for private owner to surrender ownership of that property. So, expropriation is not limited to the acquisition of that property with corresponding transfer title or possession. This BURDEN place upon the private owners restricts or limits the property rights over the land of the private owner. So, it is still the proper subject for expropriation. REPUBLIC vs PLDT Likewise, in REPUBLIC vs PLDT, PLDT as the clear franchise owner while maybe required to give telephone services upon PAYMENT OF JUST COMPENSATION. PLDT retains the ownership of the services deprived of the possession of the property but what is imposed upon PLDT is only the BURDEN. So, in this case you should not abuse your mind, that when we say expropriation, it would not necessarily mean that you use ownership of that property, it depends upon the character of the use of that property. So, there might be instances that there is expropriation but as private owners they have the right to retain ownership of the property.

In this case the NPC intended to use a portion of the property, take note only a portion of a property for the transmission lines of the NPC to transverse. The argument in here is that there is no need to emphasize the POWER OF EMINENT DOMAIN or PAYMENT OF JUST COMPENSATION because what they intended to do is only to transverse the transmission lines above the property and if there will be required to pay it will just be easement fee for the right of way. In fact, it is according to NPC that they are not asking the private owner to surrender the title or ownership of his property. The title remains to the private

owner, only a portion is affected.


So, the portion, only the portion, the only question in this case is WON an EASEMENT is the proper subject for expropriation. EASEMENT would only affect a portion of that property but you retain the title of that property. Now, the SC said that EASEMENT would be the proper subject for expropriation in this case. WHY? Although, the ownership is retained the private owner, the private owner is deprived of the beneficial use of that property, because there are CONDITIONS made by the NPC for the use of the property. What CONDITIONS? One is the private owner cannot plant and or build on the land under the transmission lines. The SC even further said that you cannot discount the fact that the emission of the sum of 220 kilo volts of the electricity it would pose the danger of life and limbs of the private owner and his family. In fact he may no longer use of the property because of the danger it may impose. The SC said that although there has been the use of the transmission lines, the private owner retains the ownership, NPC is not asking for the transfer of the title, there is still expropriation and NPC is still required to pay just compensation. What is JUST COMPENSATION in this case? The SC said that the EASEMENT FEE is not JUST COMPENSATION. The JUST COMPENSATION would be the value of the entire property, the deprived property. So, you have here the BURDEN on the property which is the proper subject for expropriation. If we understood as layman, there is NO TAKING. That is one example of TAKING is when there is MERELY a BURDEN and NOT DISPOSSESSION. Another example is the case of NPC vs IBRAHIM ( 2007) What happened in the case? They say, the NPC that they need to sample the water from Lanao lake, the 200 pipes lane. What NPC did is to dig underground tunnels under the property of Ibrahim. The argument of NPC is that, this is also not proper subject from expropriation. WHY? The surface of the property is not affected. In fact, in some cases like the case of NPC vs CA and the cases earlier, some property owner that even now that their properties were being used. Now, what we have here are constructions that are subterranean, is this still a proper subject for EMINENT DOMAIN OR EXPROPRIATION, when in this case the property is not even protected. The SC said, YES! In the same way that the transmission lines of all the property are proper subjects for expropriation there is TAKING. This is also that the subterranean digging of the tunnel underneath the property was still a proper subject for expropriation.

So when is TAKING not COMPENSABLE?


Earlier we said that when there is TAKING there must be JUST COMPENSATION. But there are these instances, when although there is TAKING there is NO JUST COMPENSATION. I mentioned that before, when we discussed the POWER or exercise POLICE POWER, when POLICE POWER is exercise through EMINENT DOMAIN or is TAKING otherwise. When the TAKING is made the valid is exercise is POLICE POWER in improving the general welfare. The Classic Example is a building or property that is nuisance per se, or a building that is about to collapse, posing danger to the community, so what can the city do or what can the state do? It can order the removal of that property and it can validly do so

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without being required to pay just compensation. But if I were the City I would penalize you for maintaining that property which is dangerous to the community. So, in case the state or whatever authority, may remove the property, may take that property, without being required payment of just compensation. WHY? This is no longer an exercise of EMINENT DOMAIN but an exercise of POLICE POWER it is for the general welfare. The same thing, when there is fire in the community, it is necessary that your property will be destroyed, so that the fire trucks could have the easiest and nearest access to the fire. Then it can do so without being required to pay you just compensation. The damage to the property owner would only be collateral or incidental damage. Now, that is what we call, DAMNUM ABSQUE INJURIA, there is damage without injury. What is the compensation? The ALTRUISTIC FEELING that is contributed to the general welfare. What if your property is not destroyed, dahil na sunog ang bahay ng kapitbahay mo so Joke lang yun hehe (because your neighbors house was consumed by fire, that was a jokelol) So, thats an instance, although there is TAKING but there is NO REQUIREMENT by the state TO PAY JUST COMPENSATION. CARLOS SUPERDRUG VS DSWD Which we already discussed. In that case the state required the pharmaceutical companies to subsidize this program, of the government to provide for better medical access, access to medicines by the senior citizens. Now, the SC with the furtherance we came into conclusion, but the conclusion is the tax reduction, would not be sufficient to recompense the loss obtained by the pharmaceutical companies. So here, there is TAKING of the property and here what we see is that compensation is not just to the tax reduction. Well, the SC said that this is an instance when there is TAKING, and now is the exercise of POLICE POWER for the benefit of the general public. Hence, there is no need to pay just compensation. MARCAPI vs REYES We have there are private companies engaging in business of providing communication service from shore to ship, or form ship to shore. So they have been providing this business and this business is good. But, now here comes the state, providing that the same service through the DEPARTMENT OF TRADE AND COMMUNICATION. This time free, so what happen to the business? Their business would become obsolete. There, they are being deprived of the beneficial use of their property. So, should they be paid just compensation? Of course, NOT! What we have here is an exercise of POLICE POWER for the general welfare. This is for the safety of the seas, for general welfare. So, if the State, by analogy there is building of the bridge, so if the building of the bridge would result to the boatman would be losing their industry, then would mean that the state would require to pay them just compensation. Now, I will recall a 1990 case. There was yet no Cellular Phones during that time, I was still a student during this time, Wala pay Cellular Phone (NO CP YET DURING THAT TIME) what we have is AT&T, we can access our relatives from provinces or elsewhere via AT&T, or owners of boarding houses, where they rent out their landline, So Bayad jud kaBayadBayad (So you will pay PAYPAY) so that we can use their telephones. In fact, there are already landlines before, but the boarders you could always find ways, mischievous ways how to use the phone without the landlady knowing. That was our scenario before, we go to public telephones just to communicate to our relatives to other places. Now, when Cellular Phones became common, they lost their business. Now, could they demand that the state will recompense them from losing their business? NO! This is one case for providing the services for free, even if consequently will deprive these businessmen of their entrepreneur, but this time no requirement of paying just compensation. Lets recap, when we say there is EXERCISE OF EMINENT DOMAIN of the state or whatever authority would exercise this power, it needs to prove first that there must be NECESSITY FOR THAT EXERCISE and there is LEGAL AUTHORITY FOR THAT EXERCISE. Thus, the exercise of that power, the constitution provides for certain rules. What are these?

First, is there must be observance of DUE PROCESS There must be PAYMENT OF JUST COMPENSATION; and There must be TAKING FOR PUBLIC USE.

DUE PROCESS. What do you mean by due process? How is this observe? Now, as you observe in the cases that weve rea d, that expropriation usually starts with the filing of an expropriation action, that is the proceeding, that is the formal proceeding required. The State must file a PETITION FOR EXPROPRIATION. What is the purpose of that petition? The expropriation must prove that the property will be expropriated for public use and then it will be the owner who will make the just compensation. That is also the proceeding, where the private owner would argue that the intended use is not valid or the intended payment is not just. If there is proper observance, then there is proper observance of due process. PUBLIC USE

Now, lets go to PUBLIC USE. What do you mean by PUBLIC USE? This is the first element, where the state must prove it intention for expropriation. PUBLIC USE, used to have in this jurisdiction a literal meaning. Before we understood PUBLIC USE, there was a time that the literal meaning should be attached to such requirement. Thus, it is PUBLIC USE, if the project undertaken is to be enjoyed by the PUBLIC IN GENERAL. Common, example is when the property is condemned or used because it will be made into a street or public street or a park. Necessarily, a street or a park is a public use, because both are accessible to the public. Now, since we said, we know that society is dynamic and constitution is also dynamic, we also have changed our understanding of what PUBLIC USE means. The term PUBLIC USE as discussed in SUMULONG vs. GUERRERO, has part on comprehensive privilege, the literal import of the term, signifying strict use or employment by the public as to a broad notion of indirect public benefit or advantage. So, its no longer strict PUBLIC USE but is has BROADER NOTION of INDIRECT PUBLIC BENEFIT or ADVANTAGE. SUMULONG vs GUERRERO Example in the case of SUMULONG vs GUERRERO, in that case, private lands where expropriated and the lands condemned were given out to beneficiaries of a housing project. Now, it argued, that since the housing project would benefit only a few member of the community, so it cannot be accessible by anybody, so it is impossible. There was an argument that it is not for PUBLIC USE because that could benefit only a few and not the general public. So, whats the ruling of the SC? This housing project is condemning a property and giving it to a small portion of the community for public use, and the SC said YES! So we have a BROADER NOTION of INDIRECT PUBLIC BENEFIT or ADVANTAGE. Housing is a basic human need. Shortage of housing is in fact a

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manner of state concern. Since, it directly and significantly affects public health, the income, public safety, protect the environment and affects the general welfare. Although, directly only a few benefits from that project, indirectly still the general welfare enjoys that housing project. In fact, the goal of any State would be that everyone would have their own houses and removed squatters because it affects public safety, public health and the environment. So, this is one example, although indirectly the public benefits is still for public purpose, although the housing is for certain qualified applicants only, it is still for public use. ESTATE vs. PHIL EXPORT we have there the PEZA. Philippine Export Processing Zone. The PEZA authorizes to expropriate pursuant to a??? ha??? How can one be a This is a public corporation, PEZA? How can it be authorize to expropriate? through a? Through a charter or a law. CONSTITUTION?..Ah LEGISLATION!Through legislation of a law. So here, we have the law authorizing the PEZA to expropriate private property for specific purposes, what are the purposes under that law? First for expropriation for housing or establishment. Now, PEZA expropriated 3 parcel of alienated rice lands. Now, a portion of that land would be leased out to private banking institutions. Now, does this lose the CHARACTER it is made of for PUBLIC USE? Now, that the portion has been leased out to the bank. Now, banks are private institutions will benefit from that expropriation. Would that mean that it was no longer for public use. That is the only issue in this case. The Sc said NO! It does not lose its PUBLIC CHARACTER, even if the portion of that land is leased out to the banks. What is the purpose of the tradition of the PEZA? PEZA was created to be a viable commercial, industrial, investment area. How can it be a viable, industrial, commercial, or investment area if there are no banking facilities available and accessible to the public. Thus, the leasing of the portion of the property to the banking institution is a necessary consequence for the attainment of the objectives of PEZA. So, it is still part of PUBLIC USE for which the property was intended, when it was expropriated. MASIKIP vs CITY of PASIG What do we have here? The City of Pasig expropriated parcel of land of MASIPIT, 4,000 square meters something. The intended use allegedly, that will use the property as a playground, sports development or recreational facilities. For there is this particular baranggay in that city, but it was proven that there was already an existing rainforest park which could be use as recreational area or for activity on sports development. Further investigation and proof revealed that the ultimate intention is for the property could be use as exclusive and private playground and recreational activity area for a certain home owners association. A home owners association is a private entity at that. So, is this public use? The SC said that it is not for public use. If they take away indirect public benefit, because there is already a recreational park of general public, it only redounded to the exclusive benefit of that private association and this time the expropriation is not allowed because it is not for PUBLIC USE. When Public Use is abandoned Now what happens if PU is abandoned or PU is not initiated/implemented? What is now the right of the private owner? Say your property is condemned / it was taken forcibly and the intended purpose is for PU. Or you discovered that it was no longer used by the state. What is your right? You have the right to ask for the return of the property. You have that right? Well we 1st if the land is expropriated for a particular purpose, with the condition that when that purpose is ended or abandoned the property shall return to its former owner, then, of course, when the purpose is terminated or abandoned the former owner reacquires the property so expropriated. o Example: If it is expropriated for a public street and the expropriation is granted upon condition that the city can only use it for a public street, then, of course, when the city abandons its use as a public street, it returns to the former owner, unless there is some statutory provision to the contrary. 2nd If, upon the contrary, however, the decree of expropriation gives to the entity a fee simple title, then, of course, the land becomes the absolute property of the expropriator, whether it be the State, a province, or municipality, and in that case the non-user does not have the effect of defeating the title acquired by the expropriation proceedings. When land has been acquired for public use in fee simple, unconditionally, either by the exercise of eminent domain or by purchase, the former owner retains no rights in the land, and the public use may be abandoned, or the land may be devoted to a different use, without any impairment of the estate or title acquired, or any reversion to the former owner. What we have here in this case is that the expropriator and the owner has a condition that if public use was lost, the state will return it to the private owner. 1st if the land is expropriated for a particular purpose, with the condition that when that purpose is ended or abandoned the property shall return to its former owner, then, of course, when the purpose is terminated or abandoned the former owner reacquires the property so expropriated. Heirs of Moreno vs Mactan Cebu In that case, it still involves property situated in Lahug . It is intended for airport use but later is no longer used an airport and now being used as an Ayala IT Park in Cebu. So, it is being leased to the Ayalas (Private Corporation). In fact the property of this particular petitioner is being used as a jail institution (presuhan na xa) not being used as an airport as we understood as it was meant to be used earlier around 1940s when it was expropriator. Now, lets just say that there was no condition for the return, will the private owner have the right to demand for the return of the property because it was no longer used as an airport in that case. And the SC said : YES! We now expressly hold that the taking of have these cases of Heirs of Moreno vs, Reyes vs. NHA, Mactan vs. Lozada. In these cases it discussed the concept of this case of

Fery v. Municpality of Cabanatuan


This case defines the rights and obligation of owners whose property is expropriated for which the public purpose for which it was exercise no longer subsist. According to this case, sc declare that the government acquire only such right in expropriated parcels of lands as may be allowed by the character of its title over the properties. The state acquires only such rights as may be allowed by the character of its title over the properties. How?

private property, consequent to the Governments exercise of its power of eminent domain, is always subject to the condition that the property be devoted to the specific public purpose for which it was taken. Nonetheless its purpose that it be used for public
purposes is always there. That once the public use does no longer exist, there is no longer need for the continued exercise of the

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power of ED. Thus the property must be returned to the private owner. So.. if this particular purpose or intent is not initiated or not at all pursued, and is peremptorily abandoned, then the former owners, if they so desire, may seek the reversion of the property, subject to the return of the amount of just compensation received. How is that so? We said that due process demands so there is a petition for expropriation right? And what will the expropriator proved? That the property is for public use. Now, if after the grant of expropriation he will no longer use the property as he asserted in his petition, then he will be denied due process on the part of the land owner. In fact, the SC is suggesting here that he expropriator should commit to use the property pursuant to the purpose stated in the petition for expropriation filed, failing which, it should file another petition for the new purpose. So the element of PP therefore is CONTINUING as asserted in the petition filed. So if not, it is incumbent upon the expropriator to return the said property to its private owner otherwise there will be violation of due process. Now what would be the obligation fo the private owner in this case? Since the property is returned, the owner of the property should also return the just compensation. In what amount? The exact amount that he received at the time that he was paid JC because of the principle of unjust enrichment, it would be unjust to consider the increase of the value of the property or the decrease of the value of the property because in a way it could happen. So here the SC said the amount that could be returned is only the JC that the private owner received plus legal interest of course if there is default. Default starts when the private owner failed to return the JC even after the state already returned the property. So the moment that the private owner receives the title, default starts. So he will be obligated to pay legal interest. REYES vs. NHA The property is sugar cane lands in Cavite were expropriated by the National Housing Authority. The intended use is socialized housing. In fact resettlement of the squatters from Dasma (Cavite). So, there was expropriation. What happened along the way is that NHA subcontracted the property to developers. So these developers constructed the houses and then there were already houses, NHA made this available for sale at low-cost. So naging low-cost housing xa and it will be available to those are qualified. Question is , was there a deviation of the Public Use for which it was originally intended? Because if there was , the private owner has the right to ask for the return of the property. So was there a deviation. The intended Dasmarinas Resettlement Area naging low-cost housing project. Was the PU abandoned/ deviated? The SC said no. this is just the same as socialized housing. Thus, NHA has not deviated from the public use for which it intended to ___ the property. Here, it follows that the low-cost housing of NHA on the expropriated lots is consistent with the Public Use. Just take not that the PU must be abandoned- totally abandoned or not initiated/not implemented. So in this case related panaman xa sa housing so its still for public use. result of expropriation. To be truly just, the private owner of the property should be compensated only for what he actually uses so that the measure of just compensation is that the gain of expropriator but the loss that the property owner will suffer. Factors in determining just compensation: 1. Current condition of the property. 2. Actual potential uses of the land (if its a land). 3. Size, shape, location, tax declarations of the land. Who determines just compensation? CASES EPZA VS DULAY The issue is how to determine just compensation. Whats the argument of the expro priator, how should it be determined? Fair market value of the land sought to be expropriated as declared by the assessor or the owner whichever is lower. Is this correct? In determining just compensation, how it should be done? The issue is which should prevail Rule 67 or the PD? What does Rule 67 provide that supersede the PD? Just compensation is a function of a judiciary. To determine it requires judicial determination. That is why in Rule 67 Sec 4 it provides that to determine just compensation the court will appoint 3 commissioners each will give their own assessment of the value of the property. These assessment will be submitted to the court and ultimately it is still the court that will determine which will be best to be the value of the property. However, prior to that there is the PD issued by Marcos wherein the just compensation is based on either the assessment of the assessor or the property owner himself whichever is lower. That decree is unconstitutional in the light of the Rules of Court and our Constitution as it is now a judicial determination or function. Whatever it is the Congress may provide for the value of the property or like this by PD made by the Pres whom can peg the value of the property. But these are just initial determinations and since we have said that it requires due process to be valid that due process must be accorded to the land owner. If the land owner says that his right has been violated that his property is taken without payment of just compensation then he has the right to prove what is just under the circumstances. It is still a judicial determination. When it should be fixed? ESTEBAN vs VDA. DE ONORIO When was the year of the taking? 1981. They constructed a canal. To peg the just compensation that should be when? Pursuant to the rules, the value of the property should be either at the time of taking or filing of the complaint of expropriation whichever comes first. In this case, taking happen in 1981. The filing of the complaint happen in 1990. In this case there is clear taking in 1981. So it should be in 1981. What happened is only a delay on the payment in this case. NPC V Ibrahim When did the NPC enter the property? 1978 How? No permission. Was there taking during that time? No. The underground tunnels where only discovered in 1992. What should be used in determining the value of the property? The value in 1978 or 1992? In 1992. Why? Based on the rules date of filing of the complaint (because it is either the date of taking or filing of the complaint whichever comes first). It is not in

December 5, 2012 By: Charmaine Incio JUST COMPENSATION What is just compensation? Full and fair equivalent of the property taken from the private owner by the expropriator. This is intended to indemnify the owner xxx by the laws of the State as a

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1978, because there was no taking at that time there was no intention on the part of NPC to take the property. TAN VS REPUBLIC Did they enter the private owners property? When was that? April 11, 1985. When was the complaint filed? Sep 22, 2003. PEA entered the property in 1985 but the complaint in 2003. When would be based the value of the property? The expropriator would definitely say in 1985 (because the value is much lower). The private owner will say that it should be on 2003 (for higher price). What the SC said? It must be computed in 2003. Why? There was condition of monthly rental in 1985. The government entered the property of the private owner but it has the consent of the private owner because the latter demands for the payment of monthly rentals. When the State pays monthly rentals it was not for momentary period and the owner was not deprived of the beneficial use of the property because it intended use was being rented out. Therefore, there was not taking in 1985 and the filing of the complaint came first. HEIRS OF PIDACAN VS ATO The order of expropriation was made in 2001. This is an exceptional case. The SC pegged the value of the property not at the time of taking, not at the time of filing of the complaint but at the time of the order of the expropriation which is much later in 2001. Why not in 1948? SC ruled that it would be unfair. In fact ATO has no intention to file a complaint of expropriation. It was only at the instant of the private owner when they file a complaint for a payment of just compensation. SC sees to it that the State has no intention of expropriating the property yet ATO have been using the property since 1948. There was taking in 1948 but if it would be peg at that period that would be a grave injustice on the part of the private owner. In other words, SC set aside the rules and used the principle of equity. If strict compliance to the rules will give grave injustice to the owner, SC will apply the rule on equity Form of payment To be just the payment should always be in cash but we have exceptional case. SANTOS vs. LAND BANK The case exercised the power of eminent domain for the implementation of the CARP Law where the State will divide the property and give it to the landless farmers. In this case, RTC ordered the Land Bank to pay. How much? 49M (that is only one of the owners where the State can exercise the power of eminent domain). The CARP provides that the payment be made in cash or bonds. SC said that this is exceptional. If you require the State to pay in cash the State will be bankrupt. Before we discussed the effect of abandonment so whats the effect? The owners have the right to ask for the return of the property. What is the effect? If theres a downpayment of just compensatio n. Effect of nonpayment REYES vs NHA Where the lands expropriated? Yes. The lands now belong to NHA. Where the petitioners paid the just compensation as ordered by the court? They were not. They are asking for the return of the property. So in case of nonpayment of just compensation do private owners have the right to ask for the return of the property in case of nonpayment? SC held it should not be returned back to them. The doctrine is that the nonpayment of just compensation does not entitle the land owner to recover possession. The right of the private owner is only to demand the payment of the value of the property for just compensation with legal interest from the time the expropriator failed to pay the just compensation. It is not the same of non-use for public purposes because on that case the private owner has the right to recovery of possession. But in case of non-payment of just compensation what the private owner has is the right to recover just compensation plus legal interest (12%). This is not a normal case of contract of sale wherein if he fails for a certain obligation, he has the right of rescission what has been received or not. Again the right is only to claim for just compensation. REPUBLIC VS. CA 12% legal interest will cover the value of the property based on the fluctuations of the value of peso. Before it was intended for public use, but later it was use for a university. What was the ruling of SC? If the property is taken for public use. Was there abandonment of public use? No. when they file for expropriation, what is the intended use? As alleged in the complaint, it is use for radio stations. They file the complaint and the expropriation was granted based on that allegations. Later, they change the use of the property. SC said here though there is change of use it is still for public use. The 2010 case of mactan intl airport, SC suggest that if you want it to use for another public purpose you file a new petition that is the new process. So this was not included because this is decided in 2002. Take note of the current ruling. Use the current ruling. REPUBLIC VS. LIM Doctrine of nonpayment of just compensation they cannot file to recover the property but only to recover just compensation with 12% legal interest. In this the additional doctrine: in 1948 until now the State still did not pay and the private owner file another case wherein they have to pay. In this case the SC see that there was no intention for the person to take the property hence, as swift justice we will rule that you return the property (rule on equity) to the private owner. More than half of the century has passed and you fail to pay the small amount. An exceptional case. December 11, 2012

By: Glowing Gloria


Judicial Review in Eminent Domain Is the power of eminent domain subject to the power of review by the supreme court? By 1987 the constitution that is already a settled issue for our constitution provides that the SC exercises an expanded jurisdiction which determines if there is grave and abuse jurisdiction amounting to lack or excess of jurisdiction. SC now can review the validity of a law or ordinance providing for the exercises of eminent domain. DE KNETCH VS BAUTISTA This was decided even prior the 1987 constitution wherein the SC review the exercise of power of domain even there is no grant in the consti. The SC ruled WON it is proper for the congress to transfer or change the site of the property expropriated because initially there was already an identified place to be expropriated but then congress change its mind and transfer it to another location. This is for the EDSA highway. The SC limits its discussion to the recent site identified by congress and ruled that it is a proper exercise of ED. REPUBLIC VS LA ORDEN This case also involves an extension of some street in sta mesa where in it was decided prior to the effectively of the 1987

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constitution. SC review such case WON it is proper to expropriate property owned by order st. benidice because such portion of the property was already use for academic institution which is already for public use. SC here said it can review won the exercise of ED was proper. o Except: when the business license is non useful and sought to be discourage by the legislature. In which case a high licenses fee may be imposed Ex. Billiard halls, cigarettes. The state cannot prohibit because it is not illegal. What i can only do is to provide for higher fees. In this sense, the power of tax includes the power to destroy would be true. It is because the state will raise it to the point that the person will not continue anymore the business.

POWER OF TAXATION TAX- enforced proportional contributions from person or property levied by the state by virtue of its sovereignty for the support of the government and for all public needs. The idea is that, the state proportion the cost of the government among the people according to their ability to take and on the basis of a scientific, classification as much as possible. How can the government, be operated or where should it get its funds? It forced contributions from the people under their protections. Remember this are enforced contributions. Importance of taxation The importance of taxation is derived form the unavoidable duty of the government to protect its people and render them benefits. This is chicken and egg thing. like you are protected because you are forced to contributeThe exercise of the power Of Taxation, is inherent in the state and primary vested in the national legislature thus taxation can ONLY be imposed pursuant to law. CAN LGU EXERCISE THE POWER OF TAXATION? Yes. NOTE: unlike the exercise of ED and PP, the exercise of the power of taxation by LGU is not pursuant to a delegated authority but by a direct grant of such power under the constitution. Article 10 sec 5

G.R.: The idea should be is that the power of Tax should not include the power to destroy. Because what will only required to us is that proportionate amount sufficient for our contribution to the amount of the government Taxes are imposed as the power of taxation while licenses, since it is for the purpose of regulating, are imposed as an exercise of police power REQUIREMENT FOR THE EXERCISE OF THE POWER OF TAXATION 1. Due process taxes might not be allowed if they are confiscatory except created precisely for the destruction as an instrument of police power. Taxes should not confiscatory (GR) 2. Equal protection clause- the mode of taxation shall be uniform and equitable (Art 6 sec 28 1987 Consti). a. Uniformity of taxation shall mean that persons belong to the same class shall be taxed in the same rate. b. Equally in taxation means, that the tax shall be strictly proportional to the relative value of the property. c. Equitable taxation connotes that taxes should be proportion to people according to thir capacity to pay. Thats why we have braketting in income. Trhe higher you earn , the higher you tax.

Article 10 Section 5. Each local government unit shall have the power to create its own sources of revenues and to levy taxes, fees and charges subject to such guidelines and limitations as the Congress may provide, consistent with the basic policy of local autonomy. Such taxes, fees, and charges shall accrue exclusively to the local governments.
LGU exercise this again through its local legislative body like Sangguniang Panlalawigan, panglungsod etc. NOTE: The obligation to pay taxes is not based on contracts rather it is duty imposed upon the individual by a mere fact of his contribution in the community. CAN A PERSON BE IMPRISONED BY HIS REFUSAL TO PAY TAXES? Yes, the constitutional prohibition of non imprisonment does not apply because again, taxes are not born out of an obligation but a enforced duty among the citizen. We have tax evasion which entails with a criminal liability TAXES VS LICENSES Taxes- enforced contribution levied to raise revenue. Impose as a power of taxation License- are imposed for regulatory purposes only. Impose as an exercise of police power

Article VI Section 28. 1. 2. The rule of taxation shall be uniform and equitable. The Congress shall evolve a progressive system of taxation. The Congress may, by law, authorize the President to fix within specified limits, and subject to such limitations and restrictions as it may impose, tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts within the framework of the national development program of the Government. Charitable institutions, churches and personages or convents appurtenant thereto, mosques, non-profit cemeteries, and all lands, buildings, and improvements, actually, directly, and exclusively used for religious, charitable, or educational purposes shall be exempt from taxation. No law granting any tax exemption shall be passed without the concurrence of a majority of all the Members of the Congress.

3.

4.

TAX EXEMPTIONS Tax exemption may be sourced by the following: From the constitution From a statute From the constitution Religious, education and charitable institution but only with respect to the land occupied for such purpose. It

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must directly and actually used for such purpose ( Lung center case in Consti 1) From the Statute or Statutory exemptions Who gave statutory exemptions? Only the congress. The president has no power to do so. When the congress passes a law providing for tax exemptions, it has to be with the conference of all members of the congress. It means that absolute majority is required. Lets go to the case >>> Lladoc vs CIR The priest here has received donations. According to him the church has to be exempt form taxation. SC said that based on the constitution the exception does not extend to such because the exception is only for the lands, buildings and equipments. WHAT IS THE PURPOSE OF THE EXCEPTION? These exceptions are granted by the constitution/state because they gave considerable assistance to the state in the improvement of the morality of the people. They care for the handicap which is a ministerial function of the state which unfortunately it is not able to fully discharge thats why they are exempted. SEC 1. DUE PROCESS AND EQUAL PROTECTION LIFE LIBERTY AND PROPERTY officials file their COC for the 2007 elections, they found out they have already disqualify for having exceeded in the term limit of 3 terms. They question now the validity of such law. SC ruled: that if you want to argue it as a violation of due process, you must, fist show that there is a violation of your right to life, liberty and property. We are not talking about life, liberty and property here. SC further ruled that there is no property right to public office. Public office is a public trust. A public officer is merely an agent of the people and serves the office pursuant to the provisions of the law. Now the law says here that he is no longer qualified then that law cannot be voided on the round that it violates his propertarial rights. As to the issue of retroactivity in this case, SC SAID that the closest as to the issue of reactivity clause of genuine constitutional issue is if a laws in retroactive application will impair vested right. In this case, there is no vested right in public office. In fact under the constitution the congress is authorize to determine the term limit of barangays officials. Others Public official have their term limit provided for by the constitution. The 3 term limit is even enacted prior to the LGC. When LGC was enacted in 1992 also provides for the 3 term limit. Here there is no retroactive application aside from above reason because the 3 term limit is always provided for by law. PIMENTEL VS COMELEC Involve here is Coco Martin este Coco Pimentel . Whom you know has been vindicated because zubiri has resigned recently. Prior to that he was questioning the canvassing of the comelec. He was leading in the canvassing in the senator vs zubiri. Now during the canvassing, he was trying to .. question for the comelc officials particularly Bidol (who was now under investigation) for election fraud. In this case while canvassing was on going, coco Pimentel was asking question directly before the comelec officials. He was not entertained according to him. According to him, his right to due process was violated. Again, SC Ruled: before you can claim your rights under due process you must first show that there was a violation in your right to life, liberty and property substantially. Substantial due process will require that you must present a law which violates you rights to life , liberty and property. Here, No such rights were violated. The canvassing was still ongoing, although he is the leading senator, there is yet no proclamations of winners. What right are you claiming? Wala dba. As to procedural due process, election officers during canvassing are not part of the canvassing. In this case, Pimentel cannot claim that youre right to procedural due process was violated because of the absence of such procedure that is being violated. DUE PROCESS Aspect of due process Substantive due process Procedural due process A. SUBSTANTIVE DUE PROCESS Substantive due process- would require the intrinsic validity of the law in interfering with right to life , liberty and property. It means that the law itself must be valid. This is actually a provision against oppressive and arbitrary laws. The issue here is WON the law is being enforced in accordance with the prescribe manner. To begin with, is it a proper exercise of legislative power? It inquires whether the government has sufficient justification for depriving the person of his right liberty and property. What would be such justification? It depends, PP, ED of taxation. In depriving life liberty and property, the conformers of substantive due process is necessary required the following: 1. There must be a valid law upon which it is based; 2. The law was passed for a valid governmental objectives;

SEC 1: 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.
Section 1 has two clauses, one for the due process and the other for the equal protection clause. WHAT IS DUE PROCESS? There is no exact definition of due process. In the cases that you read it may provide for the following definition: Responsive of supremacy of reason and obedience to the dictate of justice. A law which hears before it condemns and renders judgment only after trial. Opportunity to reason out before penalize. The common requirement isfair play, respect for justice and respect for the better rights of others. When you say due process you equate it with fair play. IS DERIVATION PERSE OF ONES LIFE, LIBERTY AND PROPERTY PROHIBITED? Actually, no. because we have the 3 inherent power which the state deprived his life liberty or property. Such deprivation is not unconstitutional. However we have the constitution that limits such exercise of this deprivation. There must be due process of law. HOW CAN YOU JUSTIFY A PERSON BEING SENTENCED TO DEATH AND LIFE IMPRISONMENT? IS THAT ALLOWED? Yes provided it is accorded with due process. NOTE: When you claim you right under due process in the constitution you must 1st proved that you have been derived of life, liberty and property. Life means- physical integrity Liberty it is not limited to the freedom of physical restraint but also connotes the rights to exist and to be free from arbitrary restraint or servitude. (White light case SC defined liberty as the right to contract,, occupation in life.) PropertyAnything that may be subject to the commerce of man. Anything that will come to the right of ownership. CASES COMELEC VS CRUZ Congress enacted a law which provides for the 3 term limit of barangays officials and provides further that the said 3 term limit should start to reckon from 1994. When barangays

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The objective must be pursued in a long term manner; and 4. The means of such law is valid and not oppressive. In sum, in order to comply with substantive due process, the law must have a valid subject and a valid means. VALID subject- the law must have a valid governmental objective. That is the interest of the public in general as distingued form those of particular class requires the intervention of the state. VALID means- the means employed must be reasonably necessary to accomplish that government cause. It must be evident that no other alternative for the accomplishment of that purpose that is less intrusive that is available. Because if there is a less intrusive means that is available then that means shall be preferred. Lets go to the cases>>>> VELASCO vs VILLEGAS- ( 1983 ) Subject: Valid- promote morals and protect/prevent prostitution Means: Valid- Licensing The city of manila passed an ordinance prohibiting barber shops to conduct the business of massaging costumers in a separate room. The ordinance also required a license another license for the baber shop and for the massaging business apart from the barbershop business. What is the subject of the ordinance? According to the SC prostitution is practice in the separate room for massaging. The subject of the ordinance is to promote or protect the morals and prevent prostitution. Is the subject Valid? YES. What about the means? Licensing and prohibiting in the close room is a valid means. BALACUIT vs CFI Subject- Valid Means- Invalid The municipality of Butuan enacted an ordinance requiring theatre owners from imposing only 50% of the value of movie tickets for children around 7-12 years old. The purpose of the ordinance is that children of this age usually do not understand what they are watching. The lower court in this case said is that they must pay less, because they understand less. The ultimate purpose is to unburden the parents. Is the purpose valid? SC said that there is no governmental objective that is necessary be attained. As to the aspect of morality, according to the municipality, parents would be encouraged bring the children to wholesome movies. SC said that means is not valid. It would instead discourage theatre owners from showing wholesome movies. The effects would be not in accordance to the subject of the law. The subject here is valid but the means is invalid because it will not seek to attain the subject which is to promote morality Besides, the means is silent as how to identify the age of the children. Requiring them to bring their birth certificate would be impractical. We have here a situation where the objective/subject is there but the means is invalid. DEL ROSARIO vs. BENGZON Subject- Valid Means- Valid This case questions the validity of Generic Acts. What is the purpose or the governmental objective there? It is to provide or protect for the general welfare. That is to make medicines available to the poor. Prior to the generics act, private practitioners would prescribe their preferred products. The poor would therefore have no choice at all which medicine to buy. The purpose of the law is to give choice to the poor by providing medicines having the same therapeutic effect but the cost is much cheaper. The subject here is valid. What about the means? The generics acts provide that the practitioners in the medicines are 3. required to prescribe first the generic name of the drug. It is not prohibited or it is allowed to write his preferred product but there are questioning the provision of the said law in writing no substitution. Is that a valid means? SC ruled that yes ye s yoh. The physician can still write down the product that he prefers and the consumer can have a choice of WON to buy the generic available. It attains actually the government aim in making the medicine available to the poor. The generic act is constitutional. Another issue raised here is that, the generic act violates the contract. According to the petitioners, there is a doctor and patient relationship here. The Physicians argue that they have the sole prerogative to prescribe the medicine they preferred to their patient for he know his patient better. Is there that relationship? SC ruled that there is no doctor-patient relationship and contract here. It is because even if the doctor will prescribe a certain medicine, there is no guarantee that the patient will really buy such prescription. In fact, even the patient will buy that medicine there is no guarantee that the patient will drink that medicine.

Furthermore, assuming that the doctor will prescribe that medicine there is no guarantee that the patient has the money to buy that medicine hehe atik lang- So, SC ruled that there is no aspect of
violation of contract here for in fact there is no contract to speak of. This case, SC upheld the said law constitutionality. GSIS VS. MONTECLAROS Subject- Valid Means- Invalid This is a case involving a handsome 72 year old, a widower, who was still lucky to marry again. In 1983 he got married and in 1985 he retired, he is a SP/SB member. He received his benefits from the GSIS and 7 years later , he died. The wife is now claiming for survivorship benefit which is allowed by the GSIS law. She was, however, rejected of her claimed by GSIS and said that such law which provide for survivorship pension denies this pension to the spouse if the marriage took place 3 years before the grant of the retirement benefits. GSIS seem to presume that marrying someone who is about to retire is only for deceptive purposes. Its like you marry for a pension alone. The purpose of the GSIS pension is to provide for a comprehensive social security benefits not only for the pensioner but also to his dependents and beneficiaries. Why would you discriminate who will be those surviving spouse that will qualify just like in this case. At the end of the day, she is still the legal spouse. Dapat nga may reward sya for marrying a 72 years old bachelor. SC ruled that the means employed is invalid. There is discrimination. Here, there is a lawful subject but nonetheless the means employed is invalid. Therefore, it is an invalid exercise of police power. GlowingGloriaNotes: The heart has its own reason and the reason which we dont know why. Drama Mode of SCCHAVEZ vs COMELEC Subject- Valid Means- Valid The comelec issued a resolution addressing the problem of EPAL.. What is EPAL? The said resolution imply that all advertisement in Radio and TV or mentioning his name and thereafter such person subjects to such advertisement becomes a candidate, is required to remove his advertisement. Chavez anchored his argument basing his right of freedom of expression. Is the law a valid exercise of Police Power? SC ruled that indeed, it is valid exercise of Police power. The aim is to equalize the playing field in election with the rich-known and artistahing candidate with the poor-yagit and lagum na candidates which cannot afford exposure in media kasi ang skin nila mala the grudge. The means here is also valid for they are only required to remove such advertisement and billboard in 3 dyas giving them time/oppurtunity to comply with

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the resolution. The ultimate objective also in this case is to prevent premature campaign. MMDA vs Viron Subject- Valid Means- Invalid Recall what is the purpose of MMDA- among others to provide means to ease the traffic conditions in Metro Manila pursuant to a certain E.O. pursuant further of this E.O. MMDA ordered the closure of private bus terminals along EDSA to decongest traffic along EDSA. Will the closure of private bus terminals decongest traffic along that area? SC sailed that there is a lawful subject but ordering the closure of these private terminals will only invite busses to load and unload passengers somewhere else other than the usual place of loading and unloading. Instead of decongesting the traffic, it now adds to the burden or the congestion of the traffic because of the possibility of transference of loading and unloading of passengers. Furthermore, SC ruled that there are less intrusive measures that are available. Measures those are less intrusive to the right of private bus operators. What are those? Curved colorom busses/van (unclear) Like enforcing traffic rules. In fact just recently my motorcycle lane na sila sa edsa. To order the closure of these private buss terminal deprive the owners of their right to ownership of their business and doing so will not address to the main problem. In fact, youll making it worst. So here valid subject, invalid means. GlowingGloriaNotes: The following cases are for sure included in the 1st examination. The transcription is insufficient due to the minimum time left. Favourite questions ni Maam Jumao -as so BEWARE. CASES INVOLVING PFA-Prostitution, Fornication and Adulteration 1. 2. 3. ERMITA VS CITY MAYORCity of Manila vs. Laguio WhiteLight vs City of Manila according to SC is not illegal and not immoral perse. These are valid business enterprises. Operating hotels, motels, bar wherein it provides for women services are valid business. These are not itself illegal. Less intrusive means would be available and recommendable rather than prohibiting totally. SC said instead, the city should regulate human conduct (what... unsaun kaya pagregulate sa city beh.. ) SC further said that the establishments are lawful pursuit which is not offensive to the moral welfare. And Im sure that is also true if we take it back to the 1967 Ermita case in which the SC strike declared the ordinance valid but further declared that this business is lawful per se and not per se offensive to public morals. So here there is a change when it comes to the exercise of police power and morality. Read white light: GlowingGloriaNotes: White is the current decision of SC and i believe there is a change in the SC decision so Beware girls. JOY to the WORD! Feliz Navidad Everyone!!

WELCOME YEAR 2013!! January 7, 2013 (Monday)

Transcribed by: Jefferson Victoriano


SUBSTANTIVE DUE PROCESS In Substantive due process, there must be a valid subject and a valid means. The subject must be valid the means employed to attain that subject must also be valid. We left without discussing, I left without discussing White Light vs. City of Manila. WHITE LIGHT vs. CITY OF MANILA As Ive said, this is the last or the latest of the series of case involving the Ermita Malate and involving that subject of immorality, and prostitution, purification, adulteration. So thats the latest of the cases. Now the city is attempting several ways in order to curb immorality, this time it thought of enacting an ordinance and the objective is to prohibit wash up rates or time rates. So the ordinance is an ordinance prohibiting short time admission rates in hotels, motels, inns, and lodging houses. The subject is to curb immorality, so is the subject valid? Yes, it is valid because it is for the general welfare particularly promoting morality. Now, is the means employed valid? Now for an Ordinance to be valid it must appear that the interest of the public generally as distinguished from a particular group require an interference with private rights and the means must be reasonably necessary for the accomplishment of the purpose and not unduly oppressive of private rights. What we have here is the City interfering with the private rights of hotel owners, motel owners, and not only of the owners but also the patrons or those who go to these establishments. So is that means with interfering with the private rights necessary to attain the objective of curbing immorality. It must also be evident that no other alternative for the establishment of the purpose less intrusive of private rights can work. In other words, whatever that legislature or local legislature may be think of, it must be the least intrusive of private rights. INTERVIEWER: Ano ang plano nyo sa mga homeless? ERAP: Marami, kaso may problema. INTERVIEWER: Ano po yun?

All of these cases involve the same part of metro manila, the Malate area. All the ordinance here are enacted to address the same problem which is PFA prostitution, fornication and adulteration- (adultery ). Issues in morality. 1967- Ermita vs City of Manila- The city here issued an ordinance requiring hotels, motels, inns, to well lighted registration area open for public view wherein the guest will have to fill up basic info open for public, no children below 18 years old are allowed unless accompanied by the parents and to check inn only in hotel not more than 2 times. SC said this is a VALID exercise of Police power. 2005- City of Manila vs Laguio- the same problem: PFA! The city here issued an ordinance this time, prohibiting a person engaging in the business where certain form of entertainment, amusement and services and facilities where women are used as tools in entertainment including sauna parlors, cabarets, bar houses, motels and inns. If i am therefore a singer in a cabaret, i will run out of business which is a means of livelihood that is because i am a woman but if i am a man it means that business goes on. Is the ordinance valid? SC held no. There is discrimination. SC said, the promotion of morals is indubitably one of the duty of city on manila however the promotion of such can be achieve through less restrictive of private rights. It can be attained by reason of a lawful restriction and regulation rather than absolute prohibition such as the case at bar. You can observed here that when a local government unit exercise police power it is only limited to regulation and not prohibition. What we have in this case is a total prohibition of business which

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ERAP: Ang hirap nilang hanapin, kasi wala silang address. If there is a lesser, or much more, much less intrusive way then that alternative should be taken. More importantly, a reasonable relation must exist between the purpose of the measure and the means employed for its accomplishment. So lets see, will prohibiting short time admissions, wash up admissions curb immorality? The SC said in this case, because we have a more open minded SC this time, we cannot discount other legitimate activities which the ordinance would proscribe or impair. Any person or group of persons in need of comfortable spaces for a span of few hours for purposes other than having sex or using illegal drugs can legitimately stay in motel or hotel as a convenient alternative. In addition, by now making any classifications of places in lodging, the ordinance makes no distinction between places prompted by patrons engaged in licit activities and those patrons engaged in legitimate actions. Thus it prevents legitimate use of places where illicit activities are rare or even concurred of. So what we have here is the state interfering with the private rights to engage in the business of hotels and motels to use rooms in hotels, motels, lodging houses etc.. Can you think of other uses of a room in a hotel or motel other than sex or using illegal drugs? Yes, some of you can afford and go there to study. I know of a coworker whose work is piled up, he absents himself from work and checks himself in a hotel because he wanted that privacy. So there are other legitimate uses of the room and in interfering with that private right the state is interfering not only with those alleged illegitimate activities but also with legitimate ones. So the ordinance rashly equates wash rates and rent out rooms more than twice a day with immorality without accommodating innocuous intentions. So what we have is an ordinance with a valid subject but the means does not attain the objective of the subject so invalid means. Now, perhaps the local sanggunian in later saggunian should be much more creative if they want to curb immorality. Again as suggested by the SC, better control the conduct rather than prohibit the business. In fact when we discussed about the exercise of police power when it comes to the municipalities or cities this is more of a regulation not a prohibition when you prohibit usually it is in a nature of being invalidated for being unconstitutional. So thats the last case under substantial due process. PROCEDURAL DUE PROCESS Now having published its rules and procedure the subject of the inquiry in aid of legislation conducted by the 14 senators therefore are procedurally infirm. That is why nakalusot si Garcillano because the senate failed to republish its new set of ruyles and procedure. Why is that the result? Because publication goes to the very essence of due process, without publication Garcillano is denied of his right to due process and due process is the no. 1 right in the Bill Of Rights so it is a constitutional right. So a violation of a constitutional right, the procedure is infirm and null and void all because there was no publication. VOID FOR VAGUENESS DOCTRINE There is a doctrine known as the VOID FOR VAGUENESS DOCTRINE. If the statute is vague, it is void. But in the first place what is a vague statute? A statute is vague when facts of comprehensible standards that man of common intelligence, thats us, must necessarily guess as its meaning and differ as to its application. So it is vague, it lacks comprehensible standards that man of common intelligence will differ as to its meaning and as to its notice to apprise everyone of the efficacy of the law. For us who are covered by the law or targeted by the law owe would know what conduct to avoid. This is also in relation to another significant provision that says ignorance of the law excusus no one from compliance therewith. Now it cannot be a defense that you dont know that there is such a law provided that there is such publication there is presumption of notice to everyone because ignorance of the law excuses no one from compliance therewith. So, what is the form of publication required? Under the Civil Code as sited in the case of Tanada vs. Tuvera, it must be published in the official gazette or in the news paper of general circulation, so that is the general rule. Now the number of days of publication may vary but the requirement of publication is constant. GARCILLANO VS. SENATE COMMITTEE

That is why in the case of Garcillano vs. Senate Committee, Garcillano was off the hook in the legislative inquiry but because of the failure of the senate to publish its rules and procedures regarding the legislative inquiry. What is the constitutional provision regarding legislative inquiry? The Senate or the House of Representative or any respective committee may conduct inquiries in aid of legislation in accordance with the duly published rules and procedures.

Now it happened that the last publication of the rules of procedure on the legislative inquiry of the senate was made in 2006. Now it was the 14th congress with the senate having its new composition in 2007, now does that mean that the senate has republished its rules and procedure and the SC said that the phrase duly

published rules and procedures requires the senate of every congress to publish new rules and procedure governing inquiries in aid of legislation because every senate
is distinct from the one before it or after it since senatorial elections are held every after 3 years or half of the membership the composition of the senate also changes by the end of each term so the senate must enact a new set of rules as it may deem fit.

Now lets go to the procedural due process. What do you recall about procedural due process?

It is a law which hears before it condemns.


It refers to the enforcement of law rather than the law itself or how judgment is reached. It requires whether or not the law is enforced in accordance with the prescribed manner. Now there are different proceedings, so there could be different venues for these proceedings. It could be a judicial proceeding, or administrative proceeding. Now whatever proceeding it is, there is a common requirement of procedural due process that is NOTICE and OPPORTUNITY TO BE HEARD or HEARING. Now there is what we call a general notice, so general that it is in fact necessary for the validity of the law without which the law is invalid. What is that? Yes, PUBLICATION is actually a form of general notice so it is essential for the validity of the law. (Read civil code: case of Tanada vs Tuvera). Publication serves as due notice to the whole world of the existence or coverage of the law. So the law must be published in its entirety or without publication there is denial of due process. So publication is a fair

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application. Now it is void because it is repugnant to the constitution into aspects: First, It violates due process for failure to afford persons especially the parties ___ clear notice of the conduct ____ indeed if the law is vague you wouldnt know what conduct to avoid, it violates the due process, therefore the conclusion is that it must be void so void for being vague. Second, it leaves the law enforcers unbridled digression in carrying out its provisions and becomes an arbitrary ___ of the government muscle because it can be interpreted in various ways, it gives the state unbridled digression in applying the law thus it is oppressive to the individual so it must be void, but to be void the act must be utterly vague meaning it is vague on its face the SC even used the word It must be perfectly vague it cannot be clarified by a saving clause or by construction. PEOPLE vs. NAZARIO This is discussed in the case of People vs. Nazario. In that case, it even sited as an example the case in the USA wherein the SC of USA struck down an ordinance that made it illegal three or more persons to assemble on side walks and there conduct themselves in a manner annoying to persons passing by. Now why is it vague? It could be illegal for 3 or more persons to assemble on side walks and there conduct themselves in a manner annoying to persons passing by. Why is it vague? What could be annoying to you could not be annoying to me. So in that case it is void. ___ we will not know what conduct to avoid. So it must be perfectly vague and its obscurity must be evident on its face. It is to be distinguished however from legislation couch in imprecise language but which normally specifies the standard though ___ in which case it may be saved by proper construction. That is why you will be studying the rules on statutory construction because these are statues which have standards but couch in imprecise language so you will have to apply the rules on construction. That is why we also have the courts to interpret these kinds of laws but it does not mean that they are already vague on their faces. Prima facie vague. ROMUALDEZ VS. COMELEC Now in the case of Romualdez vs. COMELEC the SC even further clarifies that this void for vagueness doctrine is applicable only to statutes involving free speech, freedom of religion, freedom of assembly, free press, meaning STATUTES INVOLVING FUNDAMENTAL RIGHTS. Statutes involving those rights under the Bill Of Rights. Now the SC distinguished this from criminal cases. The SC said that it cannot facially challenge a penal statute for being vague, on its face challenge; you can only do the face challenge on statutes involving fundamental rights. Why? Why not in criminal cases? With respect to this criminal statute, the established rule is that one to whom application of statute is constitutional will have the effect on the statues on the ground that impliedly it might also be taken to apply to other person or another situation in which the application might be unconstitutional. If the application of that penal statute to the accused is constitutional that is sufficient. The accused cannot attack the penal law by saying that it is unconstitutional, for example you apply it to another person or in another situation. Why? ___ it will result to a mass acquittal of parties in which cases may not have been reached in court, it would constitute a departure from the usual requirement of actual fees or controversy. Imagine I your charged of an offense under the Revised Penal Code, say estafa, can you say that article something something is unconstitutional therefore it is vague. Therefore the Revised Penal Code in its entirety is void. That attack could not be allowed. So instead of an on its face challenge of a Penal statute, that is only allowed is an applied challenge as APPLIED CHALLENGE. So case to case basis. Again , void for vagueness doctrine is only applicable in challenging statutes involving fundamental rights, freedom of speech, freedom of religion, right to assembly or freedom to assemble, press freedom etc. etc. but it is not applicable as held in Romualdez vs. COMELEC when it comes to criminal cases. DIFFERENT ASPECTS OF PROCEDURAL DUE PROCESS Lets go to the different aspects of procedural due process, different aspects because there are different proceedings because when you say procedural due process we are talking about PROCEEDINGS. The proceeding may be judicial or administrative. 1.) JUDICIAL SYSTEM What are the aspects of procedural due process in a judicial system? When we say judicial system this involves the parts. 1.1 THERE MUST BE AN IMPARTIAL COURT FOR THE JUDICIAL POWER TO HEAR AND DETERMINE THE MATTER BEFORE IT. So there must be a court that is impartial and is competent to hear the matter before it. What do you mean competent to hear the matter before it. Do you mean to say maam that some court do not have the competent to hear a matter before it? Well the reality is that we have different types of courts which have different kinds of jurisdiction. When you say jurisdiction it is the authority to hear and decide cases. The MTC for example does not have the same types of cases which it can hear as that with the RTC. For example in the MTC, eviction cases, yung unlawful detainer, this can only be heard by MTCs have exclusive jurisdiction over eviction cases. In other words, when you file an eviction case with the RTC that court is incompetent to hear that type of case, therefore whatever the type of proceeding it conducts, whatever decision it makes, it is null and void. So that is what we mean by the court must be competent.

1.2. JURISDICTION LAWFULLY ACQUIRED OVER THE PERSON OF THE DEFENDANT WHERE THE PROPER SUBJECT MATTER OF THE PROCEEDINGS. Now other than jurisdiction to hear and decide a case the court must acquire jurisdiction over the persons of the defendant or the accused. What do you mean by that? Trial or proceedings may go on, but the court has no jurisdiction over the defendant or the accused, whatever decision it may have it will not be binding to this parties, so how is jurisdiction acquired over this person or defendant in a civil case? Usually it is through the proper service of summons. When it comes to criminal cases, how will the court acquire jurisdiction over the accused? How? Usually by? Arrest or voluntary surrender. If the accused is not arrested, can trial proceed? It cannot because the court has no jurisdiction over the accused, para silang gago, nagtrial trial sila, may overwhelming evidence, but if it has no jurisdiction over the person of the accused or the

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defendant then it is useless it is not binding over the accused. Now, I thing youve heard about trial in absentia. Trial may proceed without the presence of the accused or even if the accused is a fugitive from justice, the first requirement being that the court has initially acquired jurisdiction over the accused, so there must be initially an arrest. In other words still if there is no jurisdiction there is no valid proceedings.

1.7. THE JUDGMENT MUST STATE THE FACTS AND THE LAW IN SUCH A WAY THAT THE PARTIES MAY KNOW ALL THE ISSUES INVOLVED AND THE REASONS FOR THE DECISION. In the case of FABELLA VS. CA, it summarized what are included in an administrative due process or administrative proceeding. 1.) the right to acquire reconstructive notice of the institution of the proceeding which (28:29) which may affect the ____s Bill of Rights. So the law may be actual or constructive. 2.) a real opportunity to be heard, personally or with the assistance of counsel to present witnesses and evidence his favor and for the defense of ones rights. 3.) a tribunal vested with competent jurisdiction in so constituted for the person charged administratively and a reasonable guaranty to honesty as well as impartiality. There is a finding by the tribunal which is supported by substantial evidence submitted for consideration during the hearing obtained in the records or made known to the parties affected. The same, the substantial evidence may be either those that are submitted during the hearing or at least contained in the records made known to the parties. In Fabella vs. CA, involved here are public school teachers now in an administrative proceeding involving public school teachers there is that law known as the Magna Carta for public school teachers. It provides that when it comes to administrative cases the committee to hear public school teachers in an administrative case should compose or consist of the following: the School superintendent of the division as chairman, a representative of the local or any teachers organization, and the supervisor of the division. The committee to hear public school teachers must have this composition, yung a school superintendent of the division as chairman, a teacher or representative of the local or any teachers organization and a supervisor. Now in hearing this administrative case of these teachers in Fabella vc. CA, because of engaging in public strike, it does not include that member of a teachers organization.

1.3. DEFENDANT MUST BE GIVEN THE OPPORTUNITY TO BE HEARD. So the correct phrase is opportunity to be heard. The defendant or the accused may not be actually heard provided that there is that opportunity to be heard. How does that happen maam? Youre given the opportunity, you are given notice that there is a hearing and you did not appear, you waived that opportunity. So it is not necessary that you are actually heard. What is required with due process is, there is that opportunity to be heard.

1.4. JUDGMENT MUST BE RENDERED UPON LAWFUL HEARING THERE MUST BE HEARING. In fact, what is the requirement of the constitution review? When it comes to granting decisions? And the decision must? Contain the? Facts and the Law in which it is based. This is to prove or to show that the person or the party was accorded due process. Let us go to administrative proceedings. The 2nd cardinal primary rights are enunciated in the earlier case of Ang Tibay vs. CIR. So the 2nd cardinal primary rights of the respondent is that there must be a hearing, the tribunal must be consider the evidence presented, decision must be supported by evidence, the evidence supporting the decision must be substantial, before I proceed, distinguish this kind of evidence, substantial, from the evidence required in the civil procedure. What is required in Civil Procedure? Preponderance of evidence. Preponderance of evidence means paramihan ng ebidensya that is in civil case. When it comes to criminal cases, what is the quantum of proof? Proof beyond reasonable doubt. It is higher than preponderance of evidence. Substantial evidence is such evidence as necessary to support the decision so substantial evidence is lower than preponderance kung e hierarchy natin. Proof beyond reasonable doubt, preponderance of evidence then substantial evidence. When it comes to administrative proceedings what is required will be substantial evidence.

So the question is, is that committee hearing the administrative case competent? Does it have jurisdiction?
The SC said that these committees are deemed to have no competent jurisdiction. All proceedings undertaken by them are necessarily void the institution of School superintendent of the division as chairman, a representative of the local or any teachers organization in these committees was indispensable to insure an impartial tribunal. Thus absent one member, the tribunal is incompetent to hear the administrative case. So in fact the case was decided not based on substantial due process, they did not discuss on whether or not the teachers violated the law but it was decided based on violation of procedural due process. The decision of the SC was based on whether or not the teachers were denied of their rights to procedural due process. GO VS. NAPOLCOM

1.5. EVIDENCE MUST HAVE BEEN PRESENTED IN THE HEARING OR IT IS KNOWN TO THE PARTIES WHAT CONTAINED IN THE RECORDS. So this is again another distinction from a court proceedings or judicial proceedings. The evidence in administrative proceedings must at least be presented in the hearing or pwede bang hindi napresent? Yes, provided that it is known to the parties and contained in the records. Even if it is not presented during the hearing, it may still be admitted. That is the difference between an administrative and a court proceedings. 1.6. TRIBUNAL MUST RELY ON HIS OWN INDEPENDENT JUDGMENT.

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This is an administrative case involving a policeman the problem is that administrative case is under a summary dismissal proceeding and it is conducted by the summary dismissal court. So what happens when under a summary dismissal proceeding. It can proceed without proper or formal investigation. Now the problem here is that, Go is saying that he was dismissed without evidence. It now turned out that NAPOLCOM did not even submitted a single evidence to prove the administrative case against Go. According to NAPOLCOM, there was overwhelming evidence consisting of a report of a raid that was conducted in his house wherein they obtained several paraphernalia and there were two witnesses. That was according to NAPOLCOM, but the records did not show that there was any evidence that there was a report of any raid nor the two affidavits of witnesses. So this violates the rule that in an administrative proceeding a decision must be rendered on the evidence contained in the records and disclosed to the party affected. Thus, even if the petitioner here Go is very guilty of being involved in gambling, his dismissal cannot be sustained because of the violation of due process. MOLLANEDA VS. UMACOB This involves a DECS division superintended in Davao City, charged before the Civil Service Com. with 3 misconduct and conduct grossly prejudicial arising from an act of sexual harassment. Now, the charge was before the CSC, the commission itself, now the commission sent an investigating or designated an investigation officer who is authorized to receive evidence to hear witnesses. Now after the receipt of the evidence and the hearing the witnesses, the investigation officer submitted his recommendation and the commission gave out its decision and then the DECS division superintended was dismissed from service. He now questions the proceeding Rivera is the manager of Land Bank. Now he was charged for receiving allowances from the clients for the approval of their loans. He was found guilty by Land Bank and he was meted with a penalty of forced resignation and forfeiture of benefits. He appealed his case before the MPB under the CSC. The Merits Protection Board, reduced his penalty to mere suspension, so the LB appealed before the CSC, Rivera also appealed because according to him he should not also be suspended so both appeals were raised before the CSC. Now it turned out that this Thelma, already a CSC commissioner was also the chairman of the MPB, but Riveras case was appealed there. So we have the same officer supposedly reviewing his own work so was he denied due process? You have the same officer before because she was with the MPB when the appeal was taken up. Now when it was submitted for another appeal to the higher office with the CSC, na promote din siya at naging CSC commissioner din siya so kasama na siya sa appeal mo. So will there be denial of due process? The SC said yes, in order that the review of the decision of a subordinate officer might not turn out to be farce (absurd), then the reviewing officer must perforce (Used to express necessity or inevitability) the other officer whose decision is under review. It must be another officer, otherwise there could be no different view or other view or real review of the case the decision of the reviewing officer will be a biased view, indubitably it would be the same view. Hindi siya review, same view na siya. Since being human, he would not admit that he was mistaken in his 1st view of the case. Distinguish this from a Motion for Reconsideration, because some rules would allow a MoR that is before appealing the decision of the officer you are allowed for 1 MoR, you file it with the same officer. That is different because that is a matter of procedure that is allowed by the rules and the intention is to give the officer the opportunity to change his mind if he sees that there is something wrong with his decision or give opportunity to the party to at least convince the officer that the decision was wrong. That is a matter of procedure, that is OK. But when you appeal a case to a different office, a higher office at that, it must be a different officer otherwise there is denial of due process.

because according to him, the decision was only based on the recommendation of the hearing officer, the testimony was not actually heard by the commission. Therefore, according to him he was denied due process.
The question is, does due process require that the hearing officer be the same as the deciding officer or if they not the same, will one be denied of due process? The SC said, No. Due process of law or the requirement of fair play does not require that the actual testimony be before the same officer who will make the decision, as long as the parties were not deprived to present his own case and submit evidence in support thereof and the decision is supported by evidence in the record, there is no question that the requirement of due process or the requirement of fair play are fully met. In other words, do not complain if the investigating officer is different from the deciding officer because the essence there is opportunity to be heard. RIVERA VS. CSC

JokeTime Anak : Dad im fifteen na pwede na ba ako mag BRA? Dad : Di pwede! Anak : But dad all of my friends wear bra na!!! Dad : Tigilan mo nga ako RENATO!!! Baka pisain ko itlog mu

January 08, 2013

Transcribed by: April Armilla


Yesterday we were talking about judicial aspect and administrative aspect of procedural due process. The cases of De la Salle and ADM deal with school disciplinary proceedings. Is due process also served in school administrative disciplinary proceedings? It seems that the answer is Yes because of these cases in DLSU va Ca and ADM vs Capulong.

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DLSU vs CA is about a fraternity war resulting to injuries, constraining the schools of the students to convene a joint committee to hear the disciplinary proceedings of the students. In the case of ADM vs Capulong, it also involves a frat activity i.e. frat initiation resulting to the death of a student. So, ADM had to conduct the disciplinary proceeding. What are the rights of the students when it comes to schools disciplinary tribunal? employee who terminated the employment) the Labor Code requires the one terminating the employment particularly the employer to give notice. The argument here is that the notice requirement is part of the Constitutional requirement of due process to the effect that if there is no notice, the termination of the employment is invalid, null and void. You are an employer for example and you caught your employee taking company property so you terminated him there and then. You forgot to give out the notice pursuant to the notice requirement of the Labor Code. If you accept that argument, what is the effect? The termination is null and void. So is that argument correct?

1. 2.

3. 4. 5.

The students must be informed in writing over the nature and cause of any accusation against them; They shall have the right to answer the charges against them and with the assistance of counsel if desired; They shall be informed of the evidence against them; They should have the right to adduce evidence in their own behalf; The evidence must be duly considered by the investigating committee or official designated by proper authorities to hear and decide the case.

Is the notice requirement in the Labor Code indispensable in the due process under the Constitution? The Supreme Court answered it in the
negative. WHY? 1. Due process under the Constitution is a limitation on government powers. What we have here is the power of the employer against the employee and both are private entities. So thats the basic understanding that we have of the Bill of Rights. Notice and hearing are required only under due process clause before the power the powers of organized society are come to bear upon the individual. What we have here is that an employee is not being made to face an adversarial system. SERRANO VS. NLRC In particular, this case of Serrano vs NLRC he was laid off because there is no violation but the company found it as its material prerogative to hire instead a security agency rather than to hire individual security guards. But he was not notified. Supposedly, it should take effect 30 days after but the termination was made effective immediately so there is a violation of the notice requirement. But here, it is not an adversarial system. Why would you require the employee to defend himself when there is no allegation of a violation? So the due process issue should not come in. 3. The notice requirement under Article 283 of the Labor Code cannot be considered a requirement under due process clause because the employer cannot really be expected to be an impartial judge of his own cause. So you cannot expect an employer to present a case against himself, he is then the prosecutor and the judge. You cannot expect the employer to comply with that requirement. So it is not a Constitutional requirement but rather it is more of an application of the Civil Code provision in Article 19. What is that? Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith. So the notice requirement is more of an application of that rather than an application of a Constitutional requirement. The effect is not in the validity of the termination but those who violated the notice requirement will be liable for damages. Yan naman ang nasa Civil Code dba? If you violate a Civil Code provision, the liability is more on damages. So it is different if the termination is illegal because the effect is reinstatement and/or payment of back wages. Again, when it comes to the provision of the Labor Code, this is not a due process requirement under the Constitution but more of a Civil Code provision application.

Whats the problem in DLSU and ADM cases? The students in both cases were claiming that they were denied due process particularly procedural due process . According to them, they were not allowed to cross examine the witnesses against them or to examine the evidence against them. In ADM case, they would like to cross examine the neophytes. The question is Is cross examination part of due process or a right under due process?, or are the students right violated because they were denied to cross examine? In both cases the Supreme Court said that students may not use that argument. And since they were not afforded the opportunity to see and examine the witnesses statements, which became the basis of petitioners order or the order of the school, they were denied procedural due process. Granting that they were denied such opportunity, the same may not be said that it detract from the observance of procedural due process for disciplinary cases involving students does not necessarily include the right to cross examination. An administrative proceeding conducted to investigate students participation in a hazing activity should not be clothed with the attributes of judicial proceedings. So this should not be equated to judicial proceedings, therefore, the right to cross examination is not a part of that right. So again, due process in disciplinary cases involving students does not entail proceedings and hearings similar to those prescribed or actions and proceedings in courts of justice. The proceedings in student discipline cases made in summary and cross examination is not an essential part thereof. Again, the required proof in administrative cases requires only substantial evidence. In the case of ANG TIBAY VS CIR it means such reasonable evidence that a reasonable mind might accept as adequate to support the conclusion. LABOR CODE Under the Labor Code when it comes to the termination of employees whether it is because of the fault of the employee or through an authorizing cause under Article 283, the Code requires the one terminating the employment (since it could be either the employer or the

2.

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judicial proceedings is possible only if it is a nuisance per se. A gas station is not a nuisance per se or one affecting the immediate safety of persons and property, hence, it cannot be closed down or transferred summarily to another location. Quisumbing vs MERALCO In this case officers of MERALCO check upon the property of Quisumbing and they found out that the electric meter being used is tampered. Can they immediately disconnect the service? They cannot because there is a law governing this. The law is RA 7832 which provides that a public utility cannot be immediately disconnected even if there is prima facie evidence of illegal use of electricity. The requirement is that the discovery must be witnessed and attested to by officers of the law of duly authorized representative of the Energy Regulatory Board (ERB). The presence of the government agents may authorize immediate disconnection going through the essence of due process. Now you may ask that MERALCO is a private corporation so will they have to observe due process? It may be a private company but it involves public interest because it is a public utility. In fact, it is a monopoly, it is a big electric company serving the entire Luzon. It is still governed by the law so procedural due process must be observed.

OTHER CASES INVOLVING PROCEDURAL DUE PROCESS Estate of Francisco vs CA The issue here is whether or not the local government can summarily abate or destroy a private property. Whats particular in this case is the property violates the zoning ordinance; it did not conform to the zoning ordinance. Can the Mayor immediately order the abatement or destruction of the property? The Supreme Court ruled NO, the Ordinance itself does not provide for that and in fact, the ordinance require that those that cannot comply must obtain or secure a nonperforming certificate. If he does not comply with that requirement on that certificate then the property can be abated or destroyed but only after proper judicial proceedings. If the ordinance authorizes the Mayor to summarily abate or destroy the property then that ordinance will be null and void for violation of procedural due process. Again, the essence of procedural due process is notice and hearing. In fact, when it comes to LGUs when there is a violation of an ordinance there is no punishment or penalty. The authority of the Mayor under the Local Government Code is to bring the case into court. You can also read here the distinction between a nuisance per se and nuisance per accidens when it comes to property which is a nuisance per se then the LGU can summarily abate that but only after it is determined that it really is a nuisance per se, so there is no need for judicial intervention. What is nuisance per se? Its something that poses immediate danger to property, person or life. So thats nuisance per se. It is nui sance per accidens only if there is a property termination. Still, there is a judicial proceeding required.

EQUAL PROTECTION Section 1 provides that no person should be deprived of life,

liberty and property without due process of law nor shall a person be denied of equal protection of laws.
So there are two parts in section 1: Due Process 2: Equal Protection. Technically, equal protection is part of due process because any form of unfair discrimination opens the requirement of justice which is part of due process. But in this case or under the Constitution it has always been emphasized in the sense that if the question is based on general arbitrariness you can attack it based on violation of due process, but if there is specific arbitrariness or specific discrimination or specific partial prejudice, you can immediately attack it as a violation of equal protection clause. Equal protection means that all persons or things similarly situated must be treated alike both as rights confirmed and responsibilities imposed. It does not mean however that there is a universal application of laws or that all laws must apply to all because there are substantial distinctions between classes of persons and things. For example, women could be different from men in some ways like only women can be given maternity benefits not men, or in your DOTC case old dilapidated taxis are different from new taxis, or children from adults. So again, universal application of laws in not required because of differences. The Legislators are authorized to make classifications which depend on the object or purpose of the law. In equal protection take note that like all other rights in the Constitution it is dynamic, it may change based on the changing of times. For example, before in the classification of children you have spurious children, natural children, etc but now you only have two classifications which are the legitimate and illegitimate children. As Ive said Legislators are allowed to make classifications based on the intent of the law.

NUISANCE PER SE vs. NUISANCE PER ACCIDENS 1. Nuisance per se is a nuisance at all times and under any circumstances, regardless of location or surroundings. It is of itself hurtful to the health, tranquility, or morals, of the community and as such outrage the decency of the community, since they affect the immediate safety of persons, property, they may be summarily abated under the undefined law of necessity. Nuisance per accidens are those which become nuisances by reason of circumstances are surroundings, and if an act creates any danger and inflicts injury upon person or property. In other words, nuisance per accidens is not a nuisance as such, but becomes a nuisance in the manner in which it is operated. Even the Municipal authorities, under their power to declare and abate nuisances, do not have the right to compel the abatement of a particular thing or act as a nuisance without reasonable notice to the person alleged to be maintaining or doing the the same at the time and place of hearing before the tribunal authorized to decide whether such a thing or act does in law constitute a nuisance.

2.

Estate of Francisco vs CA Petitioners business could not be considered a nuisance which respondent municipality could summarily abate in the guise of exercising its police powers. The abatement of a nuisance without

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officers stay in their offices for a definite term while appointive officers hold theirs in a permanent capacity and entitled to security of tenure. So there is a distinction between them. Central Bank Employees vs Bangko Sentral Central Bank is a GFI or Government Financial Institution. There are other GFIs like GSIS, SSS, Land Bank, DBP, ect. Now, under the Central Bank Act rank-and-file employees are still covered by the Salary Standardization Law. That is the charter of the Central bank. The charters of the other GFIs were amended to the point where all of them now have provisions exempting the rank-and-file employees from the Salary Standardization Law. So what we have now is a classification of the rank-and-file employees of Central Bank and those coming from the other GFIs. The question is: Is there substantial distinction between

For classification to be valid the following are required: 1.) The classification must be based on substantial distinction; 2.) The classification must be germane to the purpose of the law. There must be a relationship between the classification made and the intent of the law; 3.) It must not apply to existing conditions only, so it must also be apply to other similar situations; 4.) It must apply equally to all members of the same class. SUBSTANTIAL DISTINCTIONS Mirasol vs DPWH

the two given that all of them are rand-and-file employees of GFIs?
According to the Supreme Court, all of these GFIs are historically classified as one or treated as one classification. So there is now a resulting discrimination against the employees of Central Bank. So this provision of the law now becomes unconstitutional. They should be treated equally as the other rank-and-file employees of GFIs because there is no substantial distinction between them. Beltran vs Secretary This case is about the phasing out of commercial blood banks in relation to the National Blood Services Act. The purpose of the law is to provide the Nation with an adequate supply of safe blood by promoting voluntary blood transfusion and treating it as humanitarian medical service rather than a commodity. Because of that aim of the law which is to provide of safe blood, it is now mandated to phase out commercial blood banks. The owners of these commercial blood banks are now alleging undue discrimination.

Is there a substantial distinction between a motorcycle and other motor vehicles?


In this case DPWH issued an Administrative order prohibiting motorcycles from passing through toll roads and limited-accesshighways. According to drivers of motorcycles, they have been discriminated against because why would they be classified other motor vehicles. They said that the valid classification should only be between motorized and non-motorized vehicles. So their theory is that they should be allowed as motorcycle drivers to pass through the said roads and bicycles should not be allowed or kareton, kalesa. Is there a valid classification between a

motorcycle and other vehicles?


The Supreme Court said YES. Not all motorized vehicles are the same. A sixteen wheeler truck is substantially different from light vehicles. The former may be denied access to some roads where the latter are free to drive. All vehicles may be reasonably differentiated from each other so the classification could be heavy and light vehicles, old vehicle and new vehicles, etc. But in this case, as to who can pass through these toll roads and limitedaccess-highways, the classification of motorcycles as against other motor vehicles is valid. Whats the substantial distinction between

them?
Motorcycles only have two wheels while the rest have four wheels. Two-wheeled vehicles, according to the Supreme Court, obviously are more prone to accidents. So there is a substantial distinction between two-wheel vehicles and four-wheel vehicles. Farinas vs Executive This case pertains to the current Fair Elections Act particularly, on the deemed resigned issue. When an elective officer files a certificate of candidacy, he is considered not deemed resigned meaning he retains his office. So if he is an incumbent Vice-Mayor and he files his certificate of candidacy he shall continue to serve his position even if he filed a certificate of candidacy as Mayor. There is no effect on his position but when an Appointive Officer of the Civil Service files his certificate of candidacy, he is deemed or considered resigned. He loses his position/job the moment he files his certificate of candidacy. The issue is: Is there a substantial distinction between an

Is there a substantial distinction between a commercial blood bank and the non-profit blood bank?
The Supreme Court said YES. Commercial blood banks are motivated by profit so they would take any blood available and those who will sell their blood would sell their blood even if they know that it is infected because the motivation is also money. So in that sense, you cannot really say that the blood is safe. And to address that problem you remove commercial blood banks. Whereas for not profit blood banks they are run via donation and donation is more of a humanitarian act. So as to safety, they conclude that its safer to take donated blood. So theres that substantial distinction between commercial blood banks and non-profit blood banks. City of Manila vs Laguio This is one of the string of the Ermita Malate cases. The Ordinance here is the prohibition of businesses using women as source of entertainment including sauna parlors, beer houses and cabarets, dance halls, motels and inns. This ordinance is questioned for undue discrimination. For what? That women are discriminated as against men. There is an idea that women have more propensities to prostitution than men. So you disabuse that idea, men and women have equal propensity to prostitution. Another one, it discriminates against the same types of businesses. Whats common among these businesses? They provide lodging and meals. They are not different in the sense with hotels, lodging

elective officer and an appointive officer both filing their certificates of candidacy?
The Supreme Court said YES. However, the law prior to this treats them equally, but in the Fair Elections Act they are treated different. The Supreme Court said there is substantial distinction between the two. Elective officers serve based on the mandate of the people while an appointive officers occupy their positions by virtue of their designation by the appointing authority. Elective

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houses, pension houses, etc but the latter were not covered by the Ordinance. So there is discrimination. And another one, only those businesses found in the Ermita Malate area are prohibited. So theres discrimination because those businesses found outside the said area are not included. So there is no substantial distinction between those businesses and those that are found within the Malate area. GERMANE TO THE PURPOSE OF THE LAW Himagan vs People The accused here is a police man charged of murder. He was suspended for more than 90 days. The legal suspension of a government employee should not be more than 90 days . municipality for more than four years. There is reassignment every four years.

Whats the purpose of the law? To ensure impartiality of


elections of the election officials by preventing them developing familiarity of people in their place of assignment. Thats the purpose of the law. Is it now particularizing election officers or treating them as a different class from the other public officials of the COMELEC?

Is it germane to the purpose of the law?


The Supreme court said treating them differently is germane to the purpose of the law. The purpose of the law is to ensure impartiality and it will be served by breaking up important links in the chain of corruption. So it is germane to the purpose of the law. They were discriminated upon but the discrimination is valid. Quinto vs. COMELEC The same issue, appointive officials and elective officials -the former deemed ipso facto resigned upon filing of the certificate of candidacy while the latter not considered ipso facto resigned. Quinto further explains that the distinction is in fact initially made under the Constitution. Under the Constitution, appointive Civil Servants are prohibited from engaging in political partisan activities. But that is not prohibited when it comes to elective officials because precisely they are participants in the election. Appointive Civil Servants can only participate in the electoral process via voting but other than that they are prohibited by the Constitution. The prohibition goes to the Administrative Code; civil servants are prohibited to join partisan political affiliations. So there is a substantial distinction. Now, when it comes to elective officials the explanation is this: An election is the embodiment of the popular will perhaps the purest expression of the sovereign power of the people. It involves a choice or selection of candidates to public office by popular vote, considering that elected officials are put in office by the constituents for a definite term. It may be justifiably be said that they were excluded from the ambit of deemed resigned provision of the law. This is with utmost respect on the mandate of the sovereign will kasi the mandate is for them to serve in a definite term unlike appointive officials. IT MUST NOT BE LIMITED TO EXISTING CONDITIONS ONLY Ormoc vs Ormoc The Ordinance is assailed and the Supreme Court sustained the challenge to its constitutionality because it imposes tax for export sale on centrifugal sugar produced and exported by Ormoc Sugar Company, Inc. only. The Ordinance mentions the name of the corporation and only that corporation. So the tax per export sale is only applicable to Ormoc Sugar Company, Inc. What happens if another sugar company starts to operate? It will not be covered by the law so it does not apply to other similar conditions. So it is limited only to existing conditions and that is an invalid. It must apply equally to all members of the same class. People vs Jalosjos

So is there a valid distinction between a police man who is a public officer and an ordinary government employee?
The purpose of the law providing for preventive suspension, once you are charged of murder, is to prevent officer from intimidating or harassing witnesses or tampering the evidence.

Now is there a difference in providing for a longer preventive suspension to police men charged of murder based on the intention of the law? Is it germane to the purpose of the law?
YES, because police men have the badge of law and they are authorized to carry guns. So the more they are capable of harassing witnesses. Therefore, the distinction is germane to the purpose of the law. Dycaico vs SSS Bonifacio Dycaico here had a common-law relationship with Elena. They had eight children. Bonifacio retired and they were not yet married. Several years after the retirement, they got married then Bonifacio died later. Elena is claiming benefit as the surviving spouse. The SSS denied her of the benefits because according to SSS the marriage should take place before retirement. What do we have here? A distinction or classification between marriages that took place before retirement and marriages that took place after. In the sense that the latter marriage is not entitled to benefits. Whats the purpose of the SSS law particularly the benefits under it?

What was the objective of the law?


To provide meaningful protection to members and beneficiaries against the hazards of disabilities, sickness, maternity, old age and death. If you discriminate marriages which took place after the retirement, are you now saying that those marriages are not entitled to the protection that the law offers? There is no distinction and the distinction is not germane to the purpose of the law. In fact, it violates the objective of the law. What the law does is to unfairly lock all of these marriages that took place after the retirement as sham relationships or contracted only for the sole purpose of benefits accruing after the death of the other spouse. So the distinction here is not germane to the purpose of the law. De Guzman vs COMELEC COMELEC officers under the Voters Registration Act are required to be transferred to another jurisdiction every four years. So no election officers should be assigned to a particular city or

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Under the law of imprisoning a convict, will there be a justification for a prisoner to be allowed to leave the prison? Jalosjos is saying since he is an elected Congressman not withstanding that he was convicted of statutory rape two counts, and acts of lasciviousness. While his case was pending on appeal his naturally still in prison, but since he ran for election and his constituents voted for him notwithstanding that he is in prison he won as Congressman. So according to him, his duty calls and he must be allowed to attend Congressional sessions and meeting of the Committees of the Congress. Will that be a valid justification to discriminate or to give him special treatment from the rest of the prisoners? Supreme Court said NO, there is no substantial distinction between him and the other convicts. All of them are convicted. So the performance of legitimate and even essential duties of public officials has never been an excuse to free a person in prison. The law on imprisonment should apply equally to all prisoners. 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 the affidavits submitted. Sec. 6. Issuance and form of search warrant. If the judge is satisfied of the existence of facts upon which the application is based or that there is probable cause to believe that they exist, he shall issue the warrant, which must be substantially in the form prescribed by these Rules. Sec. 7. Right to break door or window to effect search. The officer, if refused admittance to the place of directed search after giving notice of his purpose and authority, may break open any outer or inner door or window of a house or any part of a house or anything therein to execute the warrant to liberate himself or any person lawfully aiding him when unlawfully detained therein. Sec. 8. Search of house, room, or premises to be made in presence of two witnesses. No search of a house, room, or any other premises shall be made except in the presence of the lawful occupant thereof or any member of his family or in the absence of the latter, two witnesses of sufficient age and discretion residing in the same locality. chan robles virtual law library Sec. 9. Time of making search. The warrant must direct that it be served in the day time, unless the affidavit asserts that the property is on the person or in the place ordered to be searched, in which case a direction may be inserted that it be served at any time of the day or night. Sec. 10. Validity of search warrant. A search warrant shall be valid for ten (10) days from its date. Thereafter, it shall be void. Sec. 11. Receipt for the property seized. The officer seizing the property under the warrant must give a detailed receipt for the same to the lawful occupant of the premises in whose presence the search and seizure were made, or in the absence of such occupant, must, in the presence of at least two witnesses of sufficient age and discretion residing in the same locality, leave a receipt in the place in which he found the seized property. Sec. 12. Delivery of property and inventory thereof to court; return and proceedings thereon. (a) The officer must forthwith deliver the property seized to the judge who issued the warrant, together with a true inventory thereof duly verified under oath. (b) Ten (10) days after issuance of the search warrant, the issuing judge shall ascertain if the return has been made, and if none, shall summon the person to whom the warrant was issued and require him to explain why no return was made. If the return has been made, the judge shall ascertain whether section 11 of this Rule has been complied with and shall require that the property seized be delivered to him. The judge shall see to it that subsection (a) hereof has been complied with. (c) The return on the search warrant shall be filed and kept by the custodian of the log book on search warrants who shall enter therein the date of the return, the result, and other actions of the judge. A violation of this section shall constitute contempt of court. Sec. 13. Search incident to lawful arrest. A person lawfully arrested may be searched for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense without a search warrant. Sec. 14. Motion to quash a search warrant or to suppress evidence; where to file. A motion to quash a search warrant and/or to suppress evidence obtained thereby may be filed in and acted upon only by the court where the action has been instituted. If no criminal action has been instituted, the motion may be filed in and resolved by the court that issued search warrant. However, if such court failed to resolve the motion and a criminal case is subsequently filed in another court, the motion shall be resolved by the latter court.

January 9 , 2012

Transcribed by: Mario Raymund Yap

Sec.2 SEARCHES AND SEIZURES A. SEARCH WARRANT RULE 126 - SEARCH AND SEIZURE Section 1. Search warrant defined. A search warrant is an order in writing issued in the name of the People of the Philippines, signed by a judge and directed to a peace officer, commanding him to search for personal property described therein and bring it before the court. Sec. 2. Court where application for search warrant shall be filed. An application for search warrant shall be filed with the following: (a) Any court within whose territorial jurisdiction a crime was committed. chan robles virtual law library (b) For compelling reasons stated in the application, any court within the judicial region where the crime was committed if the place of the commission of the crime is known, or any court within the judicial region where the warrant shall be enforced. However, if the criminal action has already been filed, the application shall only be made in the court where the criminal action is pending Sec. 3. Personal property to be seized. A search warrant may be issued for the search and seizure of personal property: (a) Subject of the offense; (b) Stolen or embezzled and other proceeds, or fruits of the offense; or (c) Used or intended to be used as the means of committing an offense. Sec. 4. Requisites for issuing search warrant. A search warrant shall not issue except upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witness he may produce, and particularly describing the place to be searched and the things to be seized which may be anywhere in the Philippines Sec. 5. Examination of complainant; record. The judge must, before issuing the warrant, personally examine in the form of

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So we are now in Section 2, the right to unreasonable searches and seizures. Section 2 provides the right to be secured against official intrusion whether in the form of search and seizure or in the form of arrest. Now, covered by this right are all persons, even aliens, citizens whether accused of a crime or not. This also covers natural or artificial persons such as corporations. Now, what is the scope of the guarantee? Only unreasonable searches and seizures and unreasonable arrest. In other words, there are searches and seizures and arrest that are allowed. Now why is it unreasonable? When there is a warrant, the search, seizure, or arrest maybe unreasonable if the warrant has been illegally obtained or illegally executed. Now, when there is no warrant, is it ipso facto unreasonable? No! because there are circumstances or situations which are exceptional. So it is unreasonable if it is without a warrant and it does not call for any of the exceptional circumstances. Now, in understanding search and seizures and arrest, it would be_ for us to cross reference it with the rules of court. So I suggest that you get the copy of the rules of court, its in the outline. We will start with search and seizure. Now, for this particular subject, you cross reference it with rule 126 of the rules of court. You should have a copy of that. So youre having an advance class in your criminal procedure. So what is the search warrant? You will know the definition of a search warrant by referencing it of section 1 of rule 126 which has defined that a search warrant is an order in writing issued in the name of People of the Philippines signed by a judge and directed to a peace officer commanding him to search for a person or property described therein and bring him before the court. particular article, article 38 of the Labor Code is declared in this case as unconstitutional. So what are the guidelines of the___ the SC firmly said under Article 3 Section 2 of the 1987 constitution, it is only the judge or judges and no other who may issue warrants of arrest and search but there is an exception, the exception is in cases of deportation of illegal and undesirable aliens. Why? The authority to deport aliens or undesirable non-citizens is inherent in the state. It is inherent that it can be done even the Chief Executive even without a law authorizing to do that. Thus, under this principle, the Chief Executive or the President through his immigration officer Commission on Immigration can issue warrants of arrest, search and seizure in relation to deportation of aliens through the deportation proceedings. Thats the only exception and nothing else. So under Section 2 of Rule 126, where should one apply for a search warrant? Where should a peace officer apply for a search warrant? Which court? Because we said its only the judge. Which court? An application for a search warrant should be filed with the following: a.) Any court within whose territorial jurisdiction a crime was committed. Now when it comes to criminal law or the prosecution of crime, the jurisdiction is the same as the venue. In other words, only the courts where the crime was committed have jurisdiction over the crime. Again if criminal proceedings, jurisdiction is the same as venue. Because if the crime was committed in Davao City, only the courts in Davao City can have jurisdiction over the particular act or crime. Now thats the first rule. Second, for compelling reasons stated in the application, meaning there has to be justification and the court within the judicial region where the crime was committed if the place of the commission is known or any court within the judicial region where the warrant should be enforced. Now the second rule is, if its not possible to file it within the territorial jurisdiction, where the crime is committed. We can file it anywhere within the judicial region where the crime was committed. _. Now our courts are classified or group into judicial regions, for example we have the ARMM judicial region. Covered by the 11 judicial region are the regional trial courts of Davao City, RTC of Tagum City, RTC of Panabo, Digos, so there is a grouping of courts according to Regional Jurisdiction or Judicial Region I mean. So in other words, if for compelling reasons you cannot file it in Davao City, with regard our 1 st example, you can file it in Tagum City because it is within the same Judicial Region of the courts in Davao City. That is for compelling reasons. So if the place of the commission of crime is known, if not known, you may file it within the judicial region of the place where the warrant is to be served. If we do not know where the crime is committed and you know that the person to be arrested is in manila, you can file it within the judicial region of NCR, National Capital Region. However, if the criminal action has already been filed, the application shall only be made in the court where the criminal action is pending. The prime rules that we read are in relation where there yet no criminal action. There is yet no case. But if there is already a case, criminal case has already been docketed, that there is already a sala hearing in that case, then the only court that can issue the search warrant or the search warrant is that court where the case is pending. Kenneth Roy vs. Taypan (2000) the NBI here applied for a search warrant in the RTC of Cebu or particulary in branch 12. The alleged crime is one in violation of intellectual property code or the laws of intellectual property. Now you will learn later on in your rules of procedure that the courts again even if there is regional trial courts have different specific

Who may issue a search warrant?


In fact in that condition, you will already know that the search warrant is issued by the judge. And it is connected only with that peace officer. That would be relevant later on when it comes to arrest because I think you have an idea that there is such a term as Citizens arrest. So when it comes to search warrants, this can only be implemented or executed by a peace officer. Now, who may issue a search warrant? The provision itself section 2 provides that there is no search warrant or warrant of arrest which shall be issued except upon a probable cause to be determined personally by the judge. So, under the constitution, it is the judge in fact who is constitutionally authorized to issue a search warrant. Now in the case of.. Salazar vs. Achacoso (1990) There is a particular provision under the old labor code particularly under article 38 authorizing the Secretary of Labor and even the POEA to issue search warrants and warrants of arrest in relation to illegal recruitment. That provision of the Labor Code has been in existence prior to the effectivity of the 1987 Constitution. Let me repeat, that provision authorizes the Secretary of Labor to issue a search warrant in relation to illegal recruitment. Now under the constitution, is that provision valid? So read the provision again of search warrant, shall issue on the ground of probable cause to be determined by the judge. So it is only the judge who will issue warrants of search and arrest. That s the categorical ruling of this case. So, the Secretary of Labor not being a judge may no longer issue search or arrest warrants. Hence, the authority must go to the judicial process. Thats the

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designations. For example in the Davao City alone, we have Regional Trial Courts branch 9, 10, 11, 12, 13, 14, 15, 16, 33, among these same RTCs, some of them are designated as family courts. Some of them are designated as drugs court. Some of them are designated as intellectual property rights court. Now, in this case, where the application was made is not an intellectual property rights court. Does it have jurisdiction to issue the search warrant? And the answer is yes! When you say issuance of search warrant, it is merely a process, it is not a case. So jurisdiction when it comes to the hearing of the case, should not be an issue. Again under the rules, any court may issue the search warrant. The only exception is when the case is already pending, you can file it there. Now issuance of a search warrant is only an ancillary power of the court. Part of the power of any court. So it is not yet a case therefore, there is no issue of jurisdiction vis--vis the authority to hear and decide the case. So branch 2 here or branch 12 may validly issue the search warrant. Sony Computer vs. Supergreen (2007) here the application for the search warrant is for the same crime of in violation of intellectual property code. That is unfair competition, mga computers making his product, imitating his product and making prepared (generally regarded as competitors) (?). The place to be searched is in Cavite, because allegedly the imitation process is that in Cavite. Cavite belongs to the fourth judicial region. The application of the search warrant was made in Manila. Manila belongs to the National Capital Region. Manila issued the search warrant. Does Manila have jurisdiction? Ordinarily, it will not have jurisdiction. Right? Because only those courts within the territorial jurisdiction of within the judicial region may issue the search warrant. In this case however, that while the imitation of the goods was made in Cavite, the sale of the imitated goods was made in Mandaluyong City which belong to the National Capital Judicial Region. The SC said, what is involved here is a transitory or continuing crime. Meaning if one of the elements of a crime is committed in another place, particularly in Mandaluyong. Therefore, any court where any of the element of the crime is committed if it is a continuing or transitory crime may issue the search warrant. So here the SC said that the Manila Court has authority, has validly issued the search warrant. Now what are the requirements for the valid execution or issuance of a search warrant? Your_ is in section 2 of article 3 of the Bill of Rights and Section 4 of Rule 126. So you read them together. Let us reread section 2, No search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the Judge after examination under oath and 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. Requirements for Search Warrants to issue with one specific offense. So in addition to it must be issued upon probable cause, and it must particularly describe the place to be searched and the things to be seized, the search warrant must only be issued in connection only with one specific offense. And the last requirement for a valid search warrant is under section 10 of rule 126, it must have been issued not more than 10 days prior to the search made pursuant thereto. In other words, the life of a search warrant has an expiration date. It has only a life of 10 days. Beyond 10 days, it is no longer a valid search warrant. Okay lets go to probable cause, the first requirement. What is probable cause? Probable cause to issue a search warrant are such facts and circumstances as would lead a reasonable man to believe that an offense has been committed and the documents or things sought to be searched or seized is in the possession of the person against whom the warrant is issued. So that the same probable cause, you must present facts and circumstances to convince the judge that the crime has been committed. The judge would be in the level of a reasonable prudent man that a crime has been committed and the thing sought to be searched and seized, he is in the possession of a person against whom the search is issued. So facts and circumstances. What would be that facts and circumstances? Now, such facts and circumstances that will show probable cause must be the best evidence available that will be obtained under the circumstances. 1st reqt PROBABLE CAUSE

PICOP vs. Asuncion (1999) An application for search warrant for search of several armalite rifles and other assorted firearms, once filed by the court with the Philippine National Police, the court of Quezon City, they wanted to search and seized seventy armalite rifles and other assorted firearms. The applicant however did not allege before the trial court that PICOP, the company to be searched, has no license to possess the firearms. So it was not alledged that PICOP has no licensed. More was there any certification from the firearms and explosives unit and certification in the attachment of application that there was no license. Now given this application ,would you say that there is probable cause to issue a search warrant? No! There is not even an allegation that the firearms were not licensed or that PICOP has no license. So clearly there is no probable cause, again, the facts and circumstances must be the best evidence that could be obtained under the circumstances particularly in this case wherein you are proving the existence of a negative ingredient of offense charged. No license, how would you therefore proved at least show probable cause when there was no license? Whats the best evidence that you could obtain? A certification from whatever authority that hear the firearms and explosives unit, a certification that PICOP has no license. That would be the best evidence to show probable cause.

People vs. Estrada (1998) Here the application was made by the Bureau of Philippine Drug before the RTC of Quezon City. Well the issue or seizure is the undetermined quantity of drugs alleged to have been distributed by the respondent without the necessary license from the Department of Health. Now what happened here? What happened in the application? The applicant of the search warrant alleged in his sworn statement that he verified from BFAD that respondent has no license to sell drugs. Now if you were the judge, would that allegation that he verified from BFAD that the respondent has to license to sell drugs, would it suffice to constitute probable cause for you to issue search warrant? Here, what we have is a mere allegation, he verified. Now did he verify? The best evidence therefore under the circumstances is he must obtain a certification

1. Probable Cause 2. Examination of Applicant 3. Particularity of the place to be searched and the things to be seize 4. One Specific Offense
So the search warrant may only be issued if there is probable cause and the search warrant issued must particularly describe the place to be searched and the persons to be seized. So these are the two requirements. Another requirement, in Section 4 of Rule 126, a search warrant shall not issue except upon probable cause in connection with one specific offense to be determined personally by the judge, the rest is worded the same or similarly worded as section 2 except the phrase in connection

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from BFAD that indeed there was no license to sell drugs. So in other words, that mere allegation is not sufficient to constitute probable cause. Coca-Cola vs. Gomez (2008) These are the things that competitors engage in just to be ahead of the game. So, in here, Pepsi allegedly hoarded Coca-Cola bottles in their compound. Now for Coca Cola it is an unfair competition because it will prevent them from selling their products using their own bottles. And it would be more costly if they have to produce new bottles. So the application is for hoarding of bottles allegedly punishable as an unfair competition under the intellectual property code. Now, a perusal of the intellectual property code however, revealed that there is no provision that penalizes hoarding of bottles as unfair competition. So it does not fall under the coverage of the intellectual property code. What do we have here therefore? What kind of scenario we have here? An application for a search warrant with no alleged violation of law. So if there is no offense that is punishable, alleged to have been committed, there is no probable cause. How can you show probable cause when there is no crime which is punishable? People vs. Salanguit (2001) The search warrant issued by the judge here is for an undetermined quantity of shabu and drug paraphernalia. If the law_ that during the deposition taking of the applicant or during the application, there was no witness could testify anything about drug paraphernalia. But there were witnesses justify about shabu. Now, should the warrant be nullified in toto?, for having been issued without probable cause because if there are no witnesses justifying the drug paraphernalia, then theres no probable cause to issue search warrant or that paraphernalia. Should the warrant, be now nullified in toto or its entirety because a portion has been issued without probable cause. The SC said, the fact that there is no probable cause to support the application for the seizure of drug paraphernalia does not warrant the conclusion that the search warrant is void. This fact, yung pag-issue against drug paraphernalia would be material only if drug paraphernalia were seized by the police. In this case however no drug paraphernalia was seized. So the search warrant remains to be valid. In so far as the seizure (?) is concern. But it is invalid or void insofar as it authorized the seizure of the paraphernalia. So, what do we have here therefore is the SC allowing a party defective of search warrant to be enforceable, to remain to be enforceable. Where you can void a part that has not been, when there was no showing of probable cause but the valid one remains to be enforceable. So it would be unjustly friendly if a warrant which was issued with probable cause and particularly discredit the items to be seized on the basis thereof is to be invalidated in toto because the judge heard in authorizing a search for other items not supported by evidence. SO LET US SUMMARIZE! When it comes to probable cause, to show probable cause, there must be showing of facts and circumstances. And this must be the best evidence that is available, for that to be obtained under the circumstances. Probable cause cannot be shown also if there is no allege crime that has been committed. And finally, if a portion is shown to have probable cause and the other portion of a search warrant has no probable cause, it does not mean the nullity of the entire search warrant. Only the invalid portion will be nullified. Okay! Now how is probable cause determined? Number 1, the guide is still in section 2.

1.) The probable cause must be determined personally by the judge.


- This has a literal meaning. It means that the judge must personally conduct the questioning. This personal questioning cannot be delegated. It must be the judge himself who conducts the questioning. So there was a case wherein the judge was then conducting a hearing when somebody was applying for a search warrant, he delegated the receiving of evidence to the Clerk of Court. The Clerk of court just had it into writing and just reread it all over again to the applicant and the judge said, is youre your statement? Yes thats my statement and he issues the warrant. That is the case wherein it was not, the determination was not done personally by the judge and it is invalid. 2nd reqt Examination of Application

2.) The determination must be in the form of searching question and answer searching probative proving questions not superficial or _ in allegation of the petition.
In other words, leading questions are not allowed. The judge cant say, did you come here because you want to apply for a search warrant (Yes)! Or you apply for a search warrant because you think there are firearms unlicensed in that place? Yes! These are leading questions, questions that are answerable by yes or no! the judge must probe. Why did you come here? Whats your purpose? Whats your proof? Okay! So leading questions again like in the case of Silva vs. Presiding officer (1991) Wherein the examination reduced into writing consisting only of 4 leading questions answerable only by merely yes or no! So the SC here said that the examination failed to conform with the requirement. It must be in the form of searching question and answer. 3.) On how probable cause is determined. The examination must be under oath or affirmation and in writing. - Under oath and affirmation, what do you mean by that? The applicant must swear to the veracity, to the truthfulness of his allegations. Now in order for him to do that, the applicant must have personal knowledge of the facts and circumstances to which he is testifying to. Again the facts testified by the applicant or the witnesses must be personal knowledge. What do you mean by personal knowledge? A fact that is personally known to the applicant. The applicant must have personally seen it, has personally perceive it, has personally smelled it kung pwede. Now how would we be guided to say that this is personal knowledge? And this one is hearsay? Prudente vs. Dayrit (1989) The applicant there peace officer, testified during the determination of probable cause that he has been informed that prevented his control and possession the firearms and explosives described therein and he has verified the report and found it to be a fact. Thats his testimony. Now attached to his application is also his affidavit of another police officer and according to that police officer, they gathered the information from verified sources.

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Now would you say that these are facts within the personal knowledge of the applicant? When you say that you have been informed by reliable source, is that really his personal knowledge? No! The personal knowledge comes from the one he said to be a reliable source. Now what is the test therefore? The true test of sufficiency of a deposition or affidavit to warrant issuance of a search warrant is whether it has been done in a manner forgery could be charged thereon and the _ may not be liable for the damage caused. The true test therefore is if the applicant could be charged for forgery and he would be liable for damages. Now in that case, I have been informed by a reliable source that si ano is buntis. Now si ano lumapit sayo, bakit sinabi mo na buntis ako? What will you say in your defense? Its not me, its from a reliable source. Then you are not liable for forgery, not liable for damages in so far as that statement is concerned. Its the same here, I have been informed that, and I have verified, that is a fact that there are unlicensed firearms. But you cannot be charged for forgery because you always have the defense that its not me, I have just been informed by stating I have just been informed. I do not claim that I was the one who saw the firearms unlicensed. So the true test again is liability for forgery and damages. Okay and the next requirement, last requirement, under the determination of the probable cause. 4.) The examination under oath or affirmation and in writing must be attached to the records of the case including all the statements or affidavits submitted by the applicant, complainants and witnesses in _. Again the examination prior to this, the examination must be in writing. So after examination, it must be transcribed into what we call as the stenographic notes. You call it transcription. Yung nrerecord ninyo yung lectures nga teachers, yun! So its stenographic notes. It must be in writing. And this in relation to that, the next requirement that we just read is that, it must be attached to the records. In writing and attached to the records. What happens if it is not attached to the records? The presumption is that no examination or personal determination was conducted, thats in the case of People vs. Mamaril (2004) Here, the place of search warrant stated that the judge issued it after examining the applicant and its witnesses in the form of searching questions and answers. However, there was no stenographic notes of that examination attached to the application and attached to the records. The records would show that there was stenographic notes. The SC said that even if we say that there was indeed an examination of the witnesses but the fact remains that it was not made into writing and it was not attached to the record. Thus, in this case, this is a fatal error because this invalidates the search warrant issued. So it is really important or crucial for the determination or for the searching questions and answers to be attached, to be made into writing and attached to the records of the case. Okay, so we talk about search warrant, we talk about the requirements for the issuance of search warrant. It must be issued upon probable cause particularly describing the place to be searched and the place to be seized in connection with what specific offense (he does a validity?) period of validity. Now we talk about probable cause, what probable cause and how is it determined.

Last time we were talking about the issuance of Search warrant that under Section 2, Article 3, there are two (2) basic requisites 1.) there must be probable cause 2.) the warrant must particularly describe the place to be search and the thing to be seized we discussed probable cause (PC) . so the next requirement that is .. Particularity of the place to be searched and the things to be seized. Ok. 3rd reqt - Particularity of the place to be searched Now the particularity requirement in the search warrant is to prevent that what is referred to in the case of STONEHILL vs. DIOKNO as a roving commission/ a general warrant. When you say general warrant, it will only serve as a tool for fishing expedition. If a General Warrant (GW) is issued, there is no particularity of the place to be searched and the things to be seized; the police officer executing the warrant who will be able to exercise discretion and unbridled discretion is what we do not want. It is what the constitution tries to prevent . So it has to be particularity or specific. When you say particularity of the place to be search, how particular is it? Under the Constitution, the description of the place is sufficient if the officer with the warrant can with reasonable effort ascertain and identify the place intended to be search and distinguish it from other places in the community. In other words, the evidence need not be technical as long as the description points out the place to the exclusion of all others ibig sabihin hindi malilito ung searching officer then it is sufficient. Example is that case of UY vs. BIR UY vs. BIR ( G.R. No. 129651. October 20, 2000] The caption of the SW states that the address is Hernan Cortez street, Cebu City. In the body however in the SW, the address is Hernan Cortez st., Mandaue City. Now based on this alone, would you say that the SW is invalid because the place to be searched is not particular? Now as it turned out, it was not shown that the street similarly Hernan Cortes st could be found in Cebu City. In other words there is no Hernan st. in Cebu city so that what is controlling therefore is the body- Hernan st., Mandaue City. So it was not therefore established that the enforcing officers had difficulty in finding the place. Now therefore that the warrant inconsistently identified the city where the premises to be searched is not a defect that would spell out the invalidity of the SW as long as (you go back to the basics) the searching officer with reasonable effort, ascertain and identify the place. In other words if there is a difference or there is a discrepancy in the caption or in the body, we could not ipso facto invalidate the warrant as long as the searching officer can still look for the place. In UY vs BIR also, they also questioned the SW because the SW mentions the name of the owner of the place. There are two warrants issued, the second warrant apparently to correct the inconsistencies of the 1st warrant. The 1st warrant was issued against UY Ching Co alias Frank Uy. I think they thought that it was incorrect, they applied for the issuance of the 2 nd warrant, this time Frank Uy and ___ and unifish packaging Corp, now is this a defect in the description of the place to be searched? Now the constitution does not actually require the warrant to name the person who occupies the named premises if what is to be search is a place and not the person. So when the warrant is issued for the search of specifically described premises only and not for a search of a person ___ the name of the owner in the warrant does not

January 19, 2013 (Make-up Class) 1st Part

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invalidate the warrant and when the name of the owner of the premises is inserted, it is not also a fatal defect because what is to be searched is the place and it not irrelevant who the person who occupies the place or who owns the place so as long as no discretion is left to the officer making the search as to the place to be searched. The same happened in QUELNAN VS. PEOPLE (526 Scra 653)z In that case the SW was issued against a certain Bernard Lim of ROOM 615, ___ Condominium, Makati City. Search Warrant issued against Bernard Lim. Now, it turned out when the peace officer or the executing officer searched the place, no Bernard Lim was found there but there was one kernan the accused. So when they found him and a few grams of shabu. So charged with violation of dangerous drugs act, he claims that the shabu is inadmissible against him since the warrant is issued against Bernard lim. Is he correct? Again, the constitution does not require that the warrant to name the person as long as the intention is to search the place and not the person. If he happens to be there and he has found to have violated or committed a crime, he can still be arrested. In fact he was caught in flagrante delicto. So it is irrelevant that the warrant is named after Bernard lim. PEOPLE VS. SALANGUIT they were able guns/explosives. to arrest 4 Pakistani nationals, seized

Are these evidences admissible in court? Or is the search valid? It is NOT! Because it was not their fault that they have applied for the search of the variety store when what they in mind is the house adjacent to the store. So what is material in determining the validity of the search is the place stated in the warrant itself. Actually thats the general rule. Exception ung sinabi ko kanina na if even if its not specific but there are __ record pointing out to the particular place, then that would be sufficient. The General Rule is that what is material in determining the validity of the search is the place stated in the warrant itself not what the applicants have in their thoughts otherwise it would conceived to the police officers the __- choosing the place to be search even if not delineated in the warrant. PPL vs. FRANCISCO (387 Scra 569/ 2002) Here the judge issued a SW for the seizure of shabu in the house of Francisco at address, 122 the application was in fact accompanied by a sketch specifying the location of the house and during the hearing of the application, the police een describe the house having 2 floors, semi-concrete, colored green. Now when they executed the warrant, they searched the residence of the accused which turned out to be not in 122 but in 120. There they obtained 200 g shabu, some paraphernalias , are the evidence admissible? So you have to look at the facts and the circumstances why it happened that way. Here, 122 Hizon st is nowher near the description of 122 Hizon st., the latter (122) is a 2storey residential building, owned by some other person. Ung 120 is actually a compound consisting of 2 apartments enclosed in one gate marked as 120. The accused there actually rented the 3 rd unit. So malayo xa sa description ng 122 which is semi-concrete, 2 floors etc. so here at first glance you would seem that the SW is sufficient but when they executed the SW, it turns out that the searching officer cannot with reasonable effort, identify the place intended precisely because it was wrongly described as 122. Now the searching officer cannot amplify or modify sorry nalang xa kahit nakita pa nia ang accused nagwawalis sa labas . he cannot modify the SW because again the general rule is hwat is material is the description set out in the warrant.

To what extension should description be specific?


The SW order the search of the residence of Robert Salanguit at Binhagan St., Q.C as shown in Annex A, so thats the description. Now take note that theres no house number. Would you say that its automatically invalid? So you have to look into the application of the warrant because this may be considered. Now in this case, attach to the application is the application itself which state the premises to be searched was located in between No. 7 and 11 at Binhagan Street, San Jose, Quezon City- to me that is sufficient enough because the officer can determine which is number 7 and 11. There was also deposition of witnesses to which they described the residence as house without a number located in Binhagan st and mre to the point, there is a pencil sketch to the place. So the location of Saranguits house being indicated in the evidence on record, there can be no doubt that the warrant __ place to be searched is sufficient with particularity. Again, it does not have to be technically precise as long as there are other descriptions as in this case of PPL vs. Salanguit. Now, the place to be search as a rule as set out in the warrant cannot be modified or ampliy with the officers own knowledge of the premises. The place to be search as set out in the warrant, kung ano ung nakalagay sa warrant and thats it, the peace officer or the searching officer cannot amplify or modify it. Then in the case of PEOPLE vs. CA PEOPLE vs. CA (1998) In this case, because of the application of the peace officers, the SW was issued ordering the search of Abegail Variety Store Apartment no. 7, in San Jose Del Monte Bulacan . So thats specific enough. Now when the peace officer went there, they realized that it was not the place they intended to search. Its actually apartment no. 1 immediately adjacent to the store. So they searched the apartment adjacent to the store because thats what they had in mind when they applied for SW. during the search,

What about if the search to be made is a COMPOUND?


PPL vs. ESTRADA (1998) in relation to violation of the consumer act, BFAD applied for and was issued a SW. the warrant was issued against this person of 516 San Jose de la Montana St., Mabolo, Cebu City., seizure of drugs when they went to the place, they found a 5,000 sqm compound. Now, that compound has 15 structures used as residences , offices, factories, workhouse, etc. is the warrant valid? Whats the principle if the serving officer with reasonable effort ascertain the place to be searched? Now how can you ascertain that when what is in the warrant is 516 san jose, cebu city. Saan doon sa 15 structures ang hahanapin niya? Therefore although prima facie it seems that the warrant is valid, when executed it is already invalid because it turned out that ithas not particularly described the place to be searched. Secondly, the place sought to be searched had not been described with sufficient particularity in the questioned search warrant, considering that private respondent Aiden Lanuza's residence is actually located at Lot No. 41, 516 San Jose de la

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Montana St., Mabolo, Cebu City, while the drugs sought to be seized were found in a warehouse at Lot No. 38 within the same compound. The said warehouse is owned by a different person. Again, the respondent Judge is correct on this point. This Court has held that the applicant should particularly describe the place to be searched and the person or things to be seized, wherever and whenever it is feasible.[28] In the present case, it must be noted that the application for search warrant was accompanied by a sketch[29]of the compound at 516 San Jose de la Montana St., Mabolo, Cebu City. The sketch indicated the 2-storey residential house of private respondent with a large "X" enclosed in a square. Within the same compound are residences of other people, workshops, offices, factories and warehouse. With this sketch as the guide, it could have been very easy to describe the residential house of private respondent with sufficient particularity so as to segregate it from the other buildings or structures inside the same compound. But the search warrant merely indicated the address of the compound which is 516 San Jose de la Montana St., Mabolo, Cebu City. This description of the place to be searched is too general and does not pinpoint the specific house of private respondent. Thus, the inadequacy of the description of the residence of private respondent sought to be searched has characterized the questioned search warrant as a general warrant, which is violative of the constitutional requirement.

heads/hoses and appurtenances or LPG filling assembly; LPG pipeline gate valve or ball valve and handles and levers; LPG weighing scales; and Seals simulating the shell trademark. In other
words there was no need to particularize the area to be search because all the structures constitutes the essential and necessary components of the petitioners business and cannot be ___separately as they formed part of the 1 hectare compound. So here the SC said that the SW has particularly described the place to be searched because the intention really is to search the entire compound.

Things to be seized (Section 3, Rule 126) What personal property can be seized? (Section 3) Subject of the offense Stolen or embezzled and other proceeds, or fruits of the offense; or Used or intended to be used as means of committing an offense.
Under Section 3, Rule 126 Personal property to be seized subject of the offense (shabu, documents) Stolen and embezzled (money paid in the sales of drugs, for example) So what is the rule? The things to be seized must be described with particularity as to the person serving the warrant to identify them more or less same rule with the particularity of the place.

PICOP vs. ASUNCION (1999) Remember PICOP? They were searching for illegal firearms dba? We discussed this under probable cause. Now they also questioned the validity of the SW because the description is to search that place located in PICOP compound, brgy pabon, bislig, surigao del sur. Now is the description of the place to be search sufficient? Now when they went to the place, PICOP is not even compoun ESTRADA (case) is a 5,000 sqm property. PICOP is a 155 hectares property. 1 hectare is 10,000 sqm right? Yes. So 155 x 10,000 thats around 1,000,555 sqm that they would have to search! (werla) now that compound has 200 offices/buildings, 15 plants, 84 staff houses, 1 airstrip, 3 piers/wharves, 23 warehouses, 6 POL depots/quick service outlets and some 800 miscellaneous structures, all of which are spread out over some one hundred fifty-five hectares. So again it would seem on its face that the warrant is valid, but when executed that it turned out that the place was not described with particularity . in other words if it can be held to be valid, it will authorize the searching officer to search the entire premises. Now what you have now is the general warrant and you can use that for fishing expedition and that is not allowed by the constitution. YAO, SR. VS. PEOPLE Also involves a compound, Masagana Compound located at Governors Drive, Barangay Lapidario, Trece Martires, Cavite City, for alleged violation of Section 155, in relation to Section 170 of Republic Act No. 8293, otherwise known as The Intellectual Property. Now you know what the decision of the SC here is for the validity of the SW. the SC said here that the SW has particularly described the place to be search, this is a compound consisting of 10,000 sqm so 1 hectare xa. Why is this now valid? So you relate that with the reason for the application and what is to be search. The application is for violation of Intellectual Property. The accused here is charged for infringement of Petron and Pilipinas Shell product. They used the logo of Gasul and Shellane in their cylinders. So merong imitation. So the entire compound is dedicated to these imitations- from the machinery

Now how particular?


KHO VS. MACALINTAL ( 1999 ) 3 warrants were issued and the following are its description Are the things to be seized particularly described? If you are the searching officer would you know now what to look for ? the SC said: The law does not require that the things to be seized must

be described in precise and minute detail as to leave no room for doubt on the part of the searching authorities. Otherwise, it would be virtually impossible for the applicants to obtain a warrant as they would not know exactly what kind of things they are looking for. In other words it does not need to be that technically precise
as long as the searching officer with reasonable effort, determine and ascertain the thing to be seized. So are the SW valid? YES because they have particularly described the things to be seized. AL GHOUL vs. CA (2001) What they did is to describe the things to be seized with particularity . 1.45 caliber pistol, 2 M-16 rifles with 2 magazines and 20 live M-16 ammunitions, 19 mm pistol with ammunitions, 3 boxes of explosives , 10 sticks of dynamites, More or less thirty (30) pieces of blasting caps pieces of detonating cords.. what if instead 3 boxes of explosives and nakita 10? Would that now invalidate the search or seizure? In fact, when they made the search, the police found

being used, LPG hydraulic pump/s,

LPG refilling

2 M-16 rifles with 2 magazines and 20 live M-16 ammunitions 1 Bar of demolition charge 1 Caliber Pistol with no. 634 and other nos. were placed with magazine of Caliber .45 and 3 live 45 ammunitions

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1 22 Caliber handgun with 5 live ammunitions in its cylinder 1 Box containing 40 pieces of .25 caliber ammunitions 2 pieces of fragmentation grenade 1 roll of detonating cord color yellow 2 big bags of ammonium nitrate suspected to be explosives substance 22 detonating cords with blasting caps and pound of high explosives TNT 1 timer alarm clock 2 bags of suspected gun powder 2 small plastic bag of suspected explosive substance 1 small box of plastic bag of suspected dynamites One weighing scale Two (2) batteries 9 volts with blasting caps and detonating cord.[5]
Question: are the things seized admissible? YES! Because they are in the same kind and nature as those things set out in the SW. in other words, the rule is substantial similarity would suffice because the consti did not require precise description or technical description as long as they are in the same nature / kind of the things to be seized as set out in the SW. Substantial similarity of those articles described as a class or species would suffice. Microsoft vs. Maxicorp (2004) So the SW issued by the court here is to order the seizure of Sundry items such as labels, boxes, prints, packages, wrappers, receptacles, advertisements and other paraphernalia bearing the copyrights and/or trademarks owned by MICROSOFT CORPORATION; In another set b PPL vs. TEE (2003) Seizure of undetermined amount of marijuana. Is that valid/ sufficient? Now when they executed the SW, they got flowery tops , leaves of marijuana totaling to 33.93 kilos (kadami) the description in the SW is undetermined amount of marijuana is that sufficient? YES as long as you can see marijuana. So again , it does not need to be technically precise. It cannot expectedly to know the exact weight noh. Tulad nung kanina 20 pcs. of dynamite kung kumulang yan ibig bang sabihin invalid yun, no thats not the rule as long as it can sufficicently be ascertain with minimal effort. PPL vs. NUNEZ (2009) The SW is for a search of shabu and paraphernalia. In the course of the search, believing that certain objects were bartered for shabu, so for the executing officer, he believed that this would be considered as proceeds of an offense (bartered for shabu), kinuha nia kasali ung ladies wallet, cash, camera, component, speakers, electric tester, hanger polo, etc. is the search valid? Yes but is the actual search valid? What did the searching officer did here? He modified the SW. he exercise discretion which is un na nga pineprevent ng constitution. These items which he believed as proceeds from the crime would be considered inadmissible.

So lets go to the 2nd requirement of a valid SW it must be in relation to one specific offense. 4th reqt - ONE SPECIFIC OFFENSE

Computer hardware, including central processing units including hard disks, CD-ROM drives, keyboards, monitor screens and diskettes, photocopying machines and other equipment or paraphernalia used or intended to be used in the illegal and unauthorized copying or reproduction of Microsoft software and their manuals, or which contain, display or otherwise exhibit, without the authority of MICROSOFT CORPORATION, any and all Microsoft trademarks and copyrights; and
So this is for an alleged copyright infringement. QUESTION: ulitin ko ung first ha sundry items such as labels, etc.bearing the trademark owned by Microsoft corp . yung l etter B ung equipment used for illegal and unauthorized copy of Microsoft software. Has the search warrant particularly described the things to be seized?? As to letter B, the answer is YES! The articles to be seized were not only sufficiently identified physically, they were also specifically identified by stating their relation to the offense charged. So ok yun. What about letter a any item bearing the trademark of Microsoft Corp., ? the SC said NO! because it does not specify whether they have been legally or illegally obtained by the owner. Malay mo dinonate yun. It was not also specified whether they were for personal use or business use. Some items may not have been legally secured or obtained. So in this case is an all-embracing description . it covers property used for personal or other purposes not related to copyright infringement or unfair competition. Ok letter A is valid letter B is invalid. So the next question is , is the entire SW invalid? What did we learn with that? In can be invalid in part and valid in another part. A search warrant therefore is SEPERABLE. It can be separated. You can separate the invalid portion and you can execute the valid portion because no provision of law exists which requires that a warrant, partially defective in specifying some items sought to be seized yet particular with respect to the other items, should be nullified as a whole.

STONEHILL vs. DIOKNO Landmark case (G.R. No. L-19550 , June 19, 1967)

In that case, the SW was issued upon application stating that the accused therein had committed vilation of Central Banks law, Tariff and customs law, Internal Revenue Code, RPC, kahit sabihin mu pang violation of RPC, ilang crimes nanjan sa RPC . ngaun, in this case the SW was issued for violation of not only the RPC but several other laws (Central Bank laws, Tariff laws, Internal Revenue Code) what do you have ? you have a general warrant, a roving commission (commission is authority) . the police officer can only use that for fishing expedition. Because of this case, the SC has ruled that a SW must be used for one-specific offense. Why? This is inrelaiton for the determination of probable cause. Why again? If you are to prove PC you must show certain facts and circumstances. So if there are several offenses, you have to show several facts and circumstances. And that cannot be done in one application. In other words, if there are several offenses, the presumption is that there is no PC. So anong gagawin mo if these are related offenses? You make as many applications as there are offenses. Because admittedly an object can be used as an evidence for one charge and for another charge. So there should be many application as there are many offenses and this is the most important one, the SW must be for one specific offenses. Therefore, if you have 3 offenses, there must be three (3) search warrants. Such is the seriousness of the irregularities committed in connection with the disputed search warrants, that this Court deemed it fit to amend Section 3 of Rule 122 of the former Rules of Court 14 by providing in its counterpart, under the Revised Rules

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of Court 15 that "a search warrant shall not issue but upon probable cause in connection with one specific offense." Not satisfied with this qualification, the Court added thereto a paragraph, directing that "no search warrant shall issue for more than one specific offense." The grave violation of the Constitution made in the application for the contested search warrants was compounded by the description therein made of the effects to be searched for and seized, to wit: Books of accounts, financial records, vouchers, journals, correspondence, receipts, ledgers, portfolios, credit journals, typewriters, and other documents and/or papers showing all business transactions including disbursement receipts, balance sheets and related profit and loss statements. Thus, the warrants authorized the search for and seizure of records pertaining to all business transactions of petitioners herein, regardless of whether the transactions were legal or illegal. The warrants sanctioned the seizure of all records of the petitioners and the aforementioned corporations, whatever their nature, thus openly contravening the explicit command of our Bill of Rights that the things to be seized be particularly described as well as tending to defeat its major objective: the elimination of general warrants.

So it took a __ this was a 1993 case it took a 1989 case in Prudente vs. Dayrit. In this case is a violation of PD illegal possession of firearms . so here, firearms, ammunitions and explosives so the same theory, .. the SC said no! all these belong to the same category , the possession of illegal firearms, explosives or other ammunitions, tetc are covered bythe special law because they belong to the same species, as to be subsumed
within the category of illegal possession of firearms, etc. under P.D. No. 1866. So here, all these itmes are destructive of life and property and are related to the same offenses- they belong to the same specie. Ok. With these cases as guide, PPL vs. Simbahon (2003) This case is for violation of RA 6465 (Dangerous Drugs) the warrant contained to search for shabu packaging sniffing paraphernalia and a .38 caliber . is the SW valid? Is the pistol categorized as the same nature as the drugs? No! what do you have therefore is a search warrant not for one specific offense but two i.e. violation of dangerous drugs act and violation of illegal possession of firearms. Gejoin nia ang Prudente and Lichoso so in that case the warrant is invalid because there are more than 1 specific offense BADYAO VS. CA??

PPL vs. DICHOSO (1993) SW is for search of shabu, marijuana and paraphernalia. And the body of the SW mentions that this is for the illegal possession of marijuana shabu and paraphernalia in connection therewith. Now, matalino ang lawyer! (haha) the lawyer said, the SW is invalid. Kasi they obtained marijuana, they obtained shabu, and also got paraphernalia, according to the bright lawyer, the SW is invalid because the constitution requires that it must be for one specific offense. Now the dangerous drugs act law penalizes possession of shabu, marijuana and paraphernalia under different sections or provisiosns. So his theory is that it is not for one specific offense. Is he correct? NO! pero kung ikaw ang kalaban ng lawyer na ito , paano mu e-aargue ito? (haha) he has a point actually pinalosopo lang yung sa kanya (haha) . the SC said he is engaging in legal semantics, his arguments are unpersuasive. Pero atleast a good try noh. Appellant's contention that the search warrant in question was issued for more than one (1) offense, hence, in violation of Section 3, Rule 126 of the Rules of Court, is unpersuasive. He engages in semantic juggling by suggesting that since illegal possession of shabu, illegal possession of marijuana and illegal possession of paraphernalia are covered by different articles and sections of the Dangerous Drugs Act of 1972, the search warrant is clearly for more than one (1) specific offense. In short, following this theory, there should have been three (3) separate search warrants, one for illegal possession of shabu, the second for illegal possession of marijuana and the third for illegal possession of paraphernalia. This argument is pedantic. The Dangerous Drugs Act of 1972 is a special law that deals specifically with dangerous drugs which are subsumed into "prohibited" and "regulated" drugs and defines and penalizes categories of offenses which are closely related or which belong to the same class or species. Accordingly, one (1) search warrant may thus be

Ok. The search is for fake land title because there seem to be LRA (land registration authority)issues fake land title so pinasearch ung office nia for fake land titles and in fact all documents nasa kanyang office. So the search warrant is in relation to falsification of land titles under Arcti 213, RPC, and RA 31 anti-graft law is about to be committed by the accused, is the warrant valid? Theres another term for a roving commission and this is a scatter shot warrant! A general warrant/ roving commission and it is invalid because it is for more than one specific offense.. So lets have a break, have a kitkat.. for 10 minutess (Weeeee! Thank you Lord)

January19, 2013 Transcribed by: Glowing Gloria


WARRANT OF ARREST WHAT ARE THE CONSTITUTIONAL REQUISITES FOR THE ISSUANCE OF WARRANT OF ARREST? Ans: the same of that issuance of a search warrant because both are governed by the same section. There should be an issuance of warrant of arrest Probable cause And particularlity of the person to be seized.

Arrest- is the taking of a person into custody in order that he may be bound to answer for the commission of an offense.

validly issued for the said violations of the Dangerous Drugs Act.

So they belong to the same class or specie, one search warrant would be valid.

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

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describing the place to be searched and the persons or things to be seized
PROBABLE CAUSE Probable Cause in the issuance of a warrant of arrest are the 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. been furnished and to copy them at his expense. If the evidence is voluminous, the complainant may be required to specify those which he intends to present against the respondent, and these shall be made available for examination or copying by the respondent at his expense. Objects as evidence need not be furnished a party but shall be made available for examination, copying, or photographing at the expense of the requesting party. (c) Within ten (10) days from receipt of the subpoena with the complaint and supporting affidavits and documents, the respondent shall submit his counter-affidavit and that of his witnesses and other supporting documents relied upon for his defense. The counter-affidavits shall be subscribed and sworn to and certified as provided in paragraph (a) of this section, with copies thereof furnished by him to the complainant. The respondent shall not be allowed to file a motion to dismiss in lieu of a counter-affidavit. (d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits within the ten (10) day period, the investigating officer shall resolve the complaint based on the evidence presented by the complainant. (e) The investigating officer may set a hearing if there are facts and issues to be clarified from a party or a witness. The parties can be present at the hearing but without the right to examine or cross-examine. They may, however, submit to the investigating officer questions which may be asked to the party or witness concerned. The hearing shall be held within ten (10) days from submission of the counter-affidavits and other documents or from the expiration of the period for their submission. It shall be terminated within five (5) days. (f) Within ten (10) days after the investigation, the investigating officer shall determine whether or not there is sufficient ground to hold the respondent for trial. (3a) Section 4. Resolution of investigating prosecutor and its review . If the investigating prosecutor finds cause to hold the respondent for trial, he shall prepare the resolution and information. He shall certify under oath in the information that he, or as shown by the record, an authorized officer, has personally examined the complainant and his witnesses; that there is reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof; that the accused was informed of the complaint and of the evidence submitted against him; and that he was given an opportunity to submit controverting evidence. Otherwise, he shall recommend the dismissal of the complaint. Within five (5) days from his resolution, he shall forward the record of the case to the provincial or city prosecutor or chief state prosecutor, or to the Ombudsman or his deputy in cases of offenses cognizable by the Sandiganbayan in the exercise of its original jurisdiction. They shall act on the resolution within ten (10) days from their receipt thereof and shall immediately inform the parties of such action. No complaint or information may be filed or dismissed by an investigating prosecutor without the prior written authority or approval of the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy. Where the investigating prosecutor recommends the dismissal of the complaint but his recommendation is disapproved by the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy on the ground that a probable cause exists, the latter may, by himself, file the information against the respondent, or direct any other assistant prosecutor or state

RULE 112 of the Rules of Court RULE 112 Preliminary Investigation Section 1. Preliminary investigation defined; when required. Preliminary investigation is an inquiry or proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial. Except as provided in section 7 of this Rule, a preliminary investigation is required to be conducted before the filing of a complaint or information for an offense where the penalty prescribed by law is at least four (4) years, two (2) months and one (1) day without regard to the fine. (1a) 2. Officers investigations. Section

authorized

to

conduct

preliminary

The following may conduct preliminary investigations: (a) Provincial or City Prosecutors and their assistants; (b) Judges of the Municipal Trial Courts and Municipal Circuit Trial Courts; (c) National and Regional State Prosecutors; and (d) Other officers as may be authorized by law. Their authority to conduct preliminary investigations shall include all crimes cognizable by the proper court in their respective territorial jurisdictions. (2a) Section 3. Procedure. The preliminary investigation shall be conducted in the following manner: (a) The complaint shall state the address of the respondent and shall be accompanied by the affidavits of the complainant and his witnesses, as well as other supporting documents to establish probable cause. They shall be in such number of copies as there are respondents, plus two (2) copies for the official file. The affidavits shall be subscribed and sworn to before any prosecutor or government official authorized to administer oath, or, in their absence or unavailability, before a notary public, each of who must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits. (b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss it if he finds no ground to continue with the investigation, or issue a subpoena to the respondent attaching to it a copy of the complaint and its supporting affidavits and documents. The respondent shall have the right to examine the evidence submitted by the complainant which he may not have

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prosecutor to do so without conducting another preliminary investigation. If upon petition by a proper party under such rules as the Department of Justice may prescribe or motu proprio, the Secretary of Justice reverses or modifies the resolution of the provincial or city prosecutor or chief state prosecutor, he shall direct the prosecutor concerned either to file the corresponding information without conducting another preliminary investigation, or to dismiss or move for dismissal of the complaint or information with notice to the parties. The same rule shall apply in preliminary investigations conducted by the officers of the Office of the Ombudsman. (4a) Section 5. Resolution of investigating judge and its review . Within ten (10) days after the preliminary investigation, the investigating judge shall transmit the resolution of the case to the provincial or city prosecutor, or to the Ombudsman or his deputy in cases of offenses cognizable by the Sandiganbayan in the exercise of its original jurisdiction, for appropriate action. The resolution shall state the findings of facts and the law supporting his action, together with the record of the case which shall include: (a) the warrant, if the arrest is by virtue of a warrant; (b) the affidavits, counter-affidavits and other supporting evidence of the parties; (c) the undertaking or bail of the accused and the order for his release; (d) the transcripts of the proceedings during the preliminary investigation; and (e) the order of cancellation of his bail bond, if the resolution is for the dismissal of the complaint. Within thirty (30) days from receipt of the records, the provincial or city prosecutor, or the Ombudsman or his deputy, as the case may be, shall review the resolution of the investigating judge on the existence of probable cause. Their ruling shall expressly and clearly state the facts and the law on which it is based and the parties shall be furnished with copies thereof. They shall order the release of an accused who is detained if no probable cause is found against him. (5a) Section 6. When warrant of arrest may issue. (a) By the Regional Trial Court. Within ten (10) days from the filing of the complaint or information, the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause. If he finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused has already been arrested pursuant to a warrant issued by the judge who conducted the preliminary investigation or when the complaint or information was filed pursuant to section 7 of this Rule. In case of doubt on the existence of probable cause, the judge may order the prosecutor to present additional evidence within five (5) days from notice and the issue must be resolved by the court within thirty (30) days from the filing of the complaint of information. (b) By the Municipal Trial Court. When required pursuant to the second paragraph of section 1 of this Rule, the preliminary investigation of cases falling under the original jurisdiction of the Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court, or Municipal Circuit Trial Court may be conducted by either the judge or the prosecutor. When conducted by the prosecutor, the procedure for the issuance of a warrant or arrest by the judge shall be governed by paragraph (a) of this section. When the investigation is conducted by the judge himself, he shall follow the procedure provided in section 3 of this Rule. If the findings and recommendations are affirmed by the provincial or city prosecutor, or by the Ombudsman or his deputy, and the corresponding information is filed, he shall issue a warrant of arrest. However, without waiting for the conclusion of the investigation, the judge may issue a warrant of arrest if he finds after an examination in writing and under oath of the complainant and his witnesses in the form of searching question and answers, that a probable cause exists and that there is a necessity of placing the respondent under immediate custody in order not to frustrate the ends of justice. (c) When warrant of arrest not necessary. A warrant of arrest shall not issue if the accused is already under detention pursuant to a warrant issued by the municipal trial court in accordance with paragraph (b) of this section, or if the complaint or information was filed pursuant to section 7 of this Rule or is for an offense penalized by fine only. The court shall then proceed in the exercise of its original jurisdiction. (6a) Section 7. When accused lawfully arrested without warrant . When a person is lawfully arrested without a warrant involving an offense which requires a preliminary investigation, the complaint or information may be filed by a prosecutor without need of such investigation provided an inquest has been conducted in accordance with existing rules. In the absence or unavailability of an inquest prosecutor, the complaint may be filed by the offended party or a peace office directly with the proper court on the basis of the affidavit of the offended party or arresting officer or person. Before the complaint or information is filed, the person arrested may ask for a preliminary investigation in accordance with this Rule, but he must sign a waiver of the provisions of Article 125 of the Revised Penal Code, as amended, in the presence of his counsel. Notwithstanding the waiver, he may apply for bail and the investigation must be terminated within fifteen (15) days from its inception. After the filing of the complaint or information in court without a preliminary investigation, the accused may, within five (5) days from the time he learns of its filing, ask for a preliminary investigation with the same right to adduce evidence in his defense as provided in this Rule. (7a; sec. 2, R.A. No. 7438) Section 8. Records. (a) Records supporting the information or complaint. An information or complaint filed in court shall be supported by the affidavits and counter-affidavits of the parties and their witnesses, together with the other supporting evidence and the resolution on the case. (b) Record of preliminary investigation. The record of the preliminary investigation, whether conducted by a judge or a fiscal, shall not form part of the record of the case. However, the court, on its own initiative or on motion of any party, may order the production of the record or any its part when necessary in the resolution of the case or any incident therein, or when it is to be introduced as an evidence in the case by the requesting party. (8a) Section 9. Cases not requiring a preliminary investigation nor covered by the Rule on Summary Procedure. (a) If filed with the prosecutor. If the complaint is filed directly with the prosecutor involving an offense punishable by imprisonment of less four (4) years, two (2) months and one (1) day, the procedure outlined in section 3(a) of this Rule shall be observed. The prosecutor shall act on the complaint based on the affidavits and other supporting documents submitted by the complainant within ten (10) days from its filing. (b) If filed with the Municipal Trial Court . If the complaint or information is filed directly with the Municipal Trial Court or Municipal Circuit Trial Court for an offense covered by this section, the procedure in section 3(a) of this Rule shall be observed. If within ten (10) days after the filing of the complaint or information, the judge finds no probable cause after personally evaluating the evidence, or after personally examining in writing and under oath the complainant and his witnesses in the form of searching question and answers, he shall dismiss the same. He may, however, require the submission of additional evidence, within ten (10) days from notice, to determine further the existence of probable cause. If the judge still finds no probable cause despite the additional evidence, he shall, within ten (10) days from its submission or expiration of said period, dismiss the case. When he finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused had already been

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arrested, and hold him for trial. However, if the judge is satisfied that there is no necessity for placing the accused under custody, he may issue summons instead of a warrant of arrest. (9a) NOTE: The constitutional proscription is against unreasonable seizure. 1st requirement, there must be probable cause in the issuance of warrant of arrest . WHAT IS PROBABLE CAUSE? Again, these are facts and circumstances which would lead to a reasonable prudent man to believe that a crime has been committed and it has been committed by the person to be arrested. This is just the same with the probable cause in the issuance of a search warrant. NOTE: prudent man should not be equated to a person who learned in law. A prudent man is a reasonable man. it would be any man with common sense. As long as the facts and circumstances would somehow support the conclusion that the crime has been committed and the person to be arrested has committed it then it is sufficient as a probable cause. It refers to man in a street not a judge, prosecutor or even a law student. The guideline remembers is the common sense. WHEN SHALL A WARRANT OF ARREST BE ISSUED? This is in relation to who will determine probable cause. It may be issued by : Regional Trial Court Municipal trial court ( there instances that the judge conduct the preliminary investigation in the issuance of warrant of arrest) WHY WOULD HE LOOK FOR THE PROBABLE CAUSE? Because when he goes to trial the prosecutor is the lawyer of the state. Remember in the criminal proceedings it is caption as people of the Philippines vs blabala because in the criminal proceeding it is against the individual who commits an offense against the state. That is why in criminal prosecution the lawyer is a government officials.so the role of the prosecution is to find the probable cause. When he finds a probable cause he will file the charge. The charge is called the information. This is what it means the after the filling the complaint or the resolution, the judge shall personally evaluate the complaint or the resolution and the prosecutor if it is worthy of evidence. The information now is filled in the court. We now have a case and it will be docketed as a case. Lets say for example, he receives an affidavit of complaint charging him of an offense, theft. Bay nangawatdawkougmanok, maprisonabako? He is still prior to this preliminary investigation stage. The compolaiant is actually filed in the prosecutor and the prosecutor will required him to file a reply. As to the question, ma prison a basya? The information is to be filed with the court. Now, it is now the duty of the judge. When the prosecutor determines the existence of a probable cause, that state is what we call the preliminary stage. The preliminary investigation stage is a function of the prosecutor- the executive department. Resolution When it goes to the judge, he will determine the probable cause. Remember this is not like the probable cause in the preliminary investigation stage, but a probable cause for the issuance of a arrest. WHY IS ARREST IMPORTANT? Remember, arrest determines the jurisdiction of the court. Arrest is resorted in a criminal proceeding because it is arrest in which the court acquires jurisdiction. PROBABLE CAUSE IN DETERMINATION OF WARRANT OF ARREST- where a reasonable man believes that the crime has been committed that the crime has been committed and the person to be arrested has committed it. HOW WILL THE JUDGE DETERMINE THE PROBABLE CAUSE? The constitution said that he must personally determine. This is the constitutional provisions. In reality, there is ainvolvement of the prosecutor dba. Nagdetermine na sya na probable cause. Personal determination would mean personal evaluation. Ersonally evolution of the resolution of the prosecutor. The resolution by the prosecutor is where the prosecutor result in a preliminary investigation that there is a crime. There is a crime, there is a probable cause. The personal evaluation of the probable cause and the certification of the prosecutor that there is a probable cause, the judge will personally evaluate that. By this juncture, we can now determine the issuance of probable cause in the search warrant and warrant of arrest. WHATS THE DISTINCTION? In search warrant it is the judge who personally asks probing questions. In warrant of arrest, since the prosecutor already done. Personal determination here would mean personally evaluation of the judge.

RULE 112 section 6 WHY THERE A NEED FOR THE RESOLUTION BY THE PROSECUTOR? General rule: after the filling of the information or complaint, the Judge may start to determine the existence of probable cause and defines that there exist a probable cause; he may then issue a warrant of arrest. RECALL YOU SEARCH WARRANT, WHEN IS A SEARCH WARRANT ISSUED? Upon an application by a police officer diba. Police direstosa judge, usually walang pang case. The judge will personally determine existence of probable cause by personally asking the complainant or the applicant. WHAT ABOUT IN THE WARRANT OF ARREST? This is the usual criminal procedure when it comes in filing a criminal case. It comes with the filling of a complaint or an affidavit of complaint. The complainant may be any person, police or private person. The complaint is filled with the prosecutor. The office of the prosecutor is under DOJ , so therefore executive department. WHATS THE ROLE OF THE PROSECUTOR? The prosecutor will determine the existence of probable cause that a crime has been committed and the respondent is probable guilty thereof. If he finds that there is fact and circumstances to show crime has been committed and the respondent has committed it, the respondent has a probable cause to file the case. The termination of probable cause, if there has been a crime and the person is probably guilty.

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The rule said, the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence. What can the judge do? He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause. Moreover, if he finds probable cause, he will issue warrant of arrest. If it is not satisfied with the resolution of the prosecutor , pero parang probability, he (judge) may in case of doubt of the existence of the probable cause, the judge may order the prosecutor to present additional evidence within 5 days of notice that the issue .. This is he may ask the prosecutor to present the witnesses or the complainant only in case of doubt and present additional evidence as a general rule. RECAP: Preliminary investigation is the inquiry to determine WON there is a sufficient ground to probable cause founded by a reasonable belief that there is a crime committed and the respondent is probable guilty therefore and should be held FOR TRIAL!. Right after the preliminary stage, it is now in the judge. The judge now shall personally evaluate the resolution of the prosecutor to determine there is a probable cause and if there is the judge shall now issue a warrant (probable cause for the issuance of warrant) MAY THE JUDGE RELY SOLELY ON THE CERTIFICATION OR THE RESOLUTION OF THE PROSECUTOR? NO! The must satisfy himself of the existence of a probable cause before issuance a warrant of arrest. The option of the judge are the ff: Dismissed it Grant the issuance of a warrant of arrest Or require additional evidence/testimony witnesses Preliminary Investigation Facts and circumstances which would engender a well founded belief that a crime has been committed and the respondent is probable guilty thereof, and should be held for trial A function of the executive (Prosecutor ) Warrant of Arrest Facts and circumstances which would lead a reasonable discreet and prudent man to believe that an offense has been committed by the person sought to be arrested. A function of the judiciary (Judge)

Soliven vs Makasiar What the constitution underscores is the exclusive and the personal responsibility of the issuing judge to satisfy himself in the existence of a probable cause for the warrant of arrest. For the issuance of warrant of arrest, the judge shall not be required to personality examine the complaint and his witnesses. Right now you can distinguish probable cause in the preliminary investigation and probable cause in warrant of arrest. PRELIMINARY INVESTIGATION- the facts and circumstances to determine that a crime has been committed and the respondent has committed it and he should be in trial PROBABLE CAUSE IN WARRANT OF ARREST (judge)- a crime has been committed and the person to be arrested has probable committed it.

THE JUDGE MERELY DETERMINE THE PROBABILITY AND NOT THE GUILT IF THE ACCUSED! If the judge shall personally examine the witnesses, it will take so much of his time. He can do this in the actual trial. And besides, there is already an initial conduct of examination by the prosecutor. Ito ang wala sa issuance ng search warrant. Walang involvement ang prosecutor. So para hindi maduplicte nd functions, the function of the judge is to review the report made by the prosecutor. The prosecutor can perform the same function as the commissioner in taking the same evidence however there should be a report and additional evidence to support the fiscal assertions. People vs Grey The judge should not rely solely on the investigation of the prosecutor, if he does, the judge should not only consider the report of the prosecutor but also the affidavit and documentary evidence of the complainant and counter affidavit of the accused as well as the transcript of the stenographic notes stated in the preliminary investigation. This necessity arises only when there is a failure in the establishment of PC. LIM VS FELIX This case arises in the murder of Moises Espinosa. The crime was committed in Masbate. When it comes to criminal proceedings, venue is jurisdictional. Kung saan nacommit ang crime doon lng ang jurisdiction. The accused here ask for the transfer of the venue which is the function of SC under article 8. The SC can order the transfer of the case. So eventually it was transfer to Makati. When he receives the initial information, the Makati judge issued the warrant of arrest pursuant to the rules. As it turn out the rest of the record is still with the Masbate court. WHAT IS THE CONCLUSION THEREFORE? The judge in Makati really solely on

of

the

In other words, the judge should not rely solely on the resolution or certification made by the prosecutor. He must review the records filed, affidavits ect. Personally determination is required in the constitution therefore takes a different meaning. as held in Soliven vs Makasiar and reiterated in Webb vs De leon PRELIMINARY INVESTIGATION Preliminary investigation is an inquiry or proceeding to determine whether there is sufficient ground to engender a well founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for the trial ( section 1 Rule 112) If the investigating prosecutor finds cause to hold the respondent for trial, he shall prepare the resolution for trial, he shall prepare resolution and information ( section 4)

WHEN SHALL A WARRANT OF ARREST BE ISSUED? 1. a. By the regional trial court ( RTC) After the filing of the complaint or information the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause. If he finds probable cause, he shall issue a warrant of arrest In case of doubt on the existence of probable cause, the judge may order the prosecutor to present additional evidence.

b. c. d.

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the information that there is a probable cause to file a case/charge against the accused. So in this case the warrant of arrest is invalid. In this case of Lim vs Felix there are certain rules that are laid for the warrant to be valid. SUMMARY: certain rules laid down in Lim vs Felix 1. The preliminary investigation to determine probable cause whether a person should be held for trial for the commission of an offense, is the function of the prosecutor ( executive function) Preliminary inquiry to determine probable cause whether a warrant of arrest be issued is the function of the judge (judicial function) The findings of the prosecutor does not bind the judge. The judge should go over the documents To personally determine the existence of probable cause, the judge could do either two things, namely a. Personally evaluate the reports and documents submitted by the fiscal; or b. Disregard the report and require submission of additional or supporting evidence. TALINGDAN VS EDUARTE Here the compliant for libel was filed directly with the judge. This will happen if you do not get a lawyer. His fortunate that the judge is ignorant of the law. Why? The clerk of court issued the warrant of arrest and according to him he merely signed it. So the complaint was filed and the warrant was issued? This is an admin case. The warrant is invalid. It is the exclusive and personal responsibility of the judge to satisfy himself in the existence of probable cause. SC said that the judge fails in his duty as he merely relies on the investigating officer as to the existence of PC making him administratively liable. We can do no less samot na ing-ani na case where there is even no certification or resolution coming from the fiscal and worst merely in the instance of the clerk. ARE THERE INSTANCES OF WARRANTLESS ARREST WHERE IT CAN BE CONSIDERED AS VALID? Yesyesyoh! The rules even provide for these instances. so justified by exigency where there is no material lack of time to secure a warrant. There are certain instances a valid warrant of arrest is recognize as an exception in the rule of requiring a warrant. These are summarizing in RULE 113 section 5 and 13 of criminal rules of procedure and Rule 114 section 23. RULE 113 SECTION 5 Section 5. Arrest without warrant; when lawful. A peace officer or a private person may, without a 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;- IN FLAGRANTE DELICTO CASES (b) When an offense has just been committed, and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; - HOT PURSUIT ARREST, katatapos lng and There is no need of any showing that evidence of the crime will be found at premise under that persons control ( remember here that the function of a warrant of arrest is to arrest and not to search) In the issuance of warrant of arrest, section 6 rule 112 simply provides that upon filing of an information, the regional trial court may issue a warrant of arrest of the accused The judge is not required to personally examine the complainant and his witnesses (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. In cases falling under paragraph (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with section 7 of Rule 112. (5a) RULE 113 SECTION 13 Section 13. Arrest after escape or rescue. If a person lawfully arrested escapes or is rescued, any person may immediately pursue or retake him without a warrant at any time and in any place within the Philippines. RULE 114 SECTION 23 Section 23. Arrest of accused out on bail. For the purpose of surrendering the accused, the bondsmen may arrest him or, upon written authority endorsed on a certified copy of the undertaking, cause him to be arrested by a police officer or any other person of suitable age and discretion. NOTE: under rule 113 section 5 , even a private person can seized a person. So here another distinction of a search warrant to a

2. 3. 4.

ISSUANCE OF WARRANT OF ARREST VS ISSUANCE OF SEARCH WARRANT 1st the same quantum of evidence is required. what is that? A reasonable prudent man. SEARCH WARRANT In search cases, two conclusion must be supported by substantial evidence: a. That the items sought are in fact seizable by virtue of being connected with criminal activity and b. That the items will be found in the place to be searched It is not also necessary that a particular person be implicated WARRANT OF ARREST In arrest cases there must be probable cause that a crime has been committed and that the person to be arrested committed it.

In the issuance of search warrant, the procedure to be followed in provided in sec 4,5, and 6 Rule 126 Requires personal determination by the judge of the existence of probable cause for the issuance of a search warrant

ABDULA VS GUIDANI According to the accused warrant of arrest is void because the judge did not personally examine the evidence nor, he called the complainant and the witnesses. The judge made a reply and he committed that there was no reason for him to doubt the validity of the certification of the fiscal. SAAN NAGKAMALI ANG JUDGE? There was a admission that the judge rely solely in the certification of the prosecutor. So in this case, the warrant of arrest was invalidly issued because of such admission.

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warrant of arrest. Under search warrant, only a police officer can conduct searches. However, under a warrant of arrest, even a private person can seize a person provided the following instances under rule 113 section 5 are complied with. constitutional right.

People vs. Montilla (1998)

Jan 23, 2013 (Wednesday) Transcribed by: Kirstin dela Cruz --------------------------------------------------------Last time we were talking about valid warrantless arrests. First instance is search incidental to valid arrest. Second instance would be what we call a consented search. If there is consent in the search and seizure, there is no need of warrant. To constitute a waiver of this constitutional right, it must appear first that the right exists. Second, that the person involved has a knowledge of that right and that person has the actual intention to relinquish that right. Thus, if a person consents to a warrantless search and seizure knowingly, intendedly, and voluntarily. Now based on this, the consent must be unequivocal, specific and intelligently give. CONSENTED SEARCH

In this case there was information that the excuse would arrive on the following day somewhere in Dasma. The informer pinpointed to the accused when the latter alighted from a jeepney. Taken from his bag without a search warrant were 28 kilos of marijuana.

Was the warrantless search valid?


This sounds familiar, may informer, the informer would point to the accused, and the police will arrest the accused or ask the accused to show the contents of his bag. Now it will not be a valid warrantless arrest. It cannot fall under a search incident to a valid arrest. It also cannot fall under the in flagrante delicto case nor any of the hot pursuit cases. So to justify the search, the police said that it was a consented search because the accused apparently consented to the opening of his bag.

What was the ruling of the SC?


Actually, the SC said YES, it was a consented search. "Even

Valdez vs. People Doubtless, the constitutional immunity against unreasonable searches and seizures is a personal right which may be waived. The consent must be voluntary in order to validate an otherwise illegal detention and search, i.e., the consent is unequivocal, specific, and intelligently given, uncontaminated by any duress or coercion.

assuming that the policemen were not pressed for time, this would be beside the point for, under these circumstances, the information relayed was too sketchy and not detailed enough for the obtention of the corresponding arrest or search warrant."
This statement alone is dubitable or doubtful. If the circumstances are too sketchy or not detailed enough if you apply for a search warrant, the judge will definitely not issue a search warrant. How can it be now a justification to search without a warrant? Even the SC said that the details were not enough for the obtention of a search warrant but it may give a justification to the conduction of the warrantless search. The informant did not even know to whom the drugs will be delivered as well as the exact place or time or the means of transportation. They said that the search was incident to a valid arrest and the police officers had a probable cause If we look at the decision of the SC here, (personally, ha) goes against what we are studying here. But take note that this was a 1998 case, the case of Valdez v Pp, where the court clarified how a consented search is to be made, was decided on 2007. That would be the standing proof. That's why I said before that when it comes to searches and arrests, the SC is not consistent. I don't know what the consideration is but sometimes it is obvious that they will fit the facts and circumstances to how they want to decide the case whether it is valid or invalid. But we should just be guided by this case of Valdez v Pp and all the other cases that we have studied earlier. So, mere silence should not even be construed as consent. People vs. Compacion (2001) Here, this was also based on a tip supplied by an informant. So, the police conducted surveillance on the residence of the accused and there they saw 2 tall marijuana plants in the backyard of the accused. Actually, the police tried to apply for a warrant.

Whether or not there is consent is a case-to-case basis and that can be shown by clear and convincing evidence. Fourth, we will look at the instances or the circumstances and the voluntariness as well as the way that the consent was given must be based on the totality of the circumstances.

Hence, consent to a search is not to be lightly inferred, but must be shown by clear and convincing evidence. The question whether consent to a search was in fact voluntary is a question of fact to be determined from the totality of all the circumstances. Relevant to this determination are the following characteristics of the person giving consent and the environment in which consent is given: 1. 2. 3. 4. 5. 6. 7. 8. The age of the defendant; Whether he was in a public or secluded location; Whether he objected to the search or passively looked on; The education and intelligence of the defendant; the presence of coercive police procedures; the defendant's belief that no incriminating evidence will be found; (7) the nature of the police questioning; the environment in which the questioning took place; and the possibly vulnerable subjective state of the person consenting.

Based on these, mere failure to resist or object to the execution of the warrant does not constitute an implied waiver of a

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On the first instance, they apply it to the court without territorial jurisdiction over the case. On the second instance, it was filed on the proper court but it was already night. They cannot wait so they conducted the search and seizure at dawn as if the marijuana plants would be uprooted anytime soon. So they conducted the search and seizure without a warrant, they asked the accused to open the gate and to let them in and the accused did. It was even the accused who led them to where the marijuana is planted. law. In other words, regard to the one with the guns or the badges. In this case, under the circumstances, the police team were numerous. Now under the requirements for the warrantless search to be valid, since this is, like any other constitutional right, a personal right, only the person to whom the search is made or whose right is to be violated, can give the consent. It cannot be made or given for him by another. People vs. Asis

So was it a consented search?


The SC said that under the circumstances that the accused merely remained silent, it does not mean that he consented to the search.

"It is extant from the records that accusedappellant did not consent to the warrantless search and seizure conducted. While the right to be secure from unreasonable search and seizure may, like every right, be waived either expressly or impliedly, such waiver must constitute a valid waiver made voluntarily, knowingly and intelligently. The act of the accused-appellant in
allowing the members of the military to enter his premises and his consequent silence during the unreasonable search and seizure could not be construed as voluntary submission or an implied acquiescence to warrantless search and seizure especially so when members of the raiding team were intimidatingly numerous and heavily armed. His implied acquiescence, if any, could not have been more than mere passive conformity given under coercive or intimidating circumstances and is, thus, considered no consent at all within the purview of the constitutional guarantee. Consequently, herein accused-appellants lack of objection to the search and seizure is not tantamount to a waiver of his constitutional right or a voluntary submission to the warrantless search and seizure.[28] The case of People v. Burgos,[29] is instructive. In Burgos, the Court ruled that the accused is not to be presumed to have waived the unlawful search simply because he failed to object. There, we held: xxx To constitute a waiver, it must appear first that the right exists; secondly, that the person involved had knowledge, actual or constructive, of the existence of such a right; and lastly, that said person had an actual intention to relinquish the right (Pasion Vda. De Garcia v. Locsin, 65 Phil. 689). The fact that the accused failed to object to the entry into his house does not amount to a permission to make a search therein (Magoncia v. Palacio, 80 Phil. 770). As pointed out by Justice Laurel in the case of Pasion Vda. De Garcia v. Locsin (supra);" x x x As the constitutional guaranty is not dependent upon any affirmative act of the citizen, the courts do not place the citizen in the position of either contesting an officers authority by force, or waiving his constitutional rights; but instead they hold that a peaceful submission to a search or seizure is not a consent or an invitation thereto, but is merely a demonstration of regard for the supremacy of the law.

In this case, the accused was a deaf-mute. He was arrested for robbery with hiomicide. He was brought to his house and his wife and mother was there. Not knowing what was going on, the sister of the victim went with the team and asked for the return of the bag and the wife did (not knowing what was going on). The bag contained the bloody pair of shorts belonging to the victim.

Is this a consented search?


To be a consented search, the consent should be given by the deaf-mute himself, not by his wife or mother for him.

"Primarily, the constitutional right against unreasonable searches and seizures, being a personal one, cannot be waived by anyone except the person whose rights are invaded or who is expressly authorized to do so on his or her behalf.. In the present case, the testimonies of the
prosecution witnesses show that at the time the bloodstained pair of shorts was recovered, Appellant Formento, together with his wife and mother, was present. Being the very subject of the search, necessarily, he himself should have given consent. Since he was physically present, the waiver could not have come from any other person." REQUIREMENTS FOR CONSENTED SEARCH TO BE VALID

1.) First requirement is that consent must be given knowingly, voluntarily and intelligently. 2.) Is it should be given by the one whose right is being violated. And the third one is that the waiver must be understood to cover only what is included within the terms of the language If you consent to the search of your room and your room only, this should not included other areas of the house. Example is the case of . Veroy vs Layague

Here, the house of Veroy is situated at Skyline and it was suspected to be a safe house of the rebels. Since the Veroys were in Manila at that time, the team called them over the phone. The Veroys gave their consent and said "okay, since you are saying that there are rebels in our house, take a look at our house." So, pinapasok sila. Now, when they entered the house, they searched not only the rooms but cabinets and drawers and under the bed. Definitely, you will not find a rebel inside the drawers. So, what they found were firearms and ammunitions.

Sino pa ang hihindi kung napakarami na nila? In fact, the SC said in one case that it is but a submission to the supremacy of the

Will these firearms and ammunitions be admissible in court as proof of a consented search?

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The consent was only up to the search for rebels, it cannot expand to searches of other objects. So, that should be the scope of the search. Now under the circumstances, the SC also noted that it is undeniable that the police officers had ample time to procure a search warrant but they did not. Even if they found the firearms and ammunitions in the drawers, they cannot take them. What they can do is to go to court and ask for a search warrant.

The policeman here was urinating at a fence. Now, he happened to see a garden about 70 square meters which has camote and corn tops concealing marijuana plants. So, umiihi sya (whistling) then he happened to see these marijuana plants. Then he reported what he saw to his superior. The superior set out a team. Saan ang mali dun? They should have obtained a search warrant. So, he dispatched a team then an hour later they went straight to the house and asked the accused to lead them to the backyard. So, they uprooted the plants. Very obvious ang mali dun diba? In the first place, there was no prior justification to be there. In fact, if I were to be asked, he was violating an ordinance for urinating at a fence. In this case, there was no prior justification to be there. Next requirement, the officer must discover the evidence inadvertently. Meaning, it was not deliberately sought. So, the discovery of evidence in plain view must be inadvertent and the officer must not be poking around, yung tipong nag fi-fishing expedition sya. Inadvertent also means that e evidence must be open to the hands and eyes of the searching officer. Hindi yung hahanapin pa sa drawer.

EVIDENCE IN PLAIN VIEW The plain view doctrine states that the law enforcer can make a search and seizure without a warrant if he has a prior justification for the intrusion, the discovery of evidence in plain view is inadvertent (hindi sinasadya) and the illegality of the object is immediately apparent. These are actually the requirements. First, there must be a prior justification for the intrusion of the officer or that the officer is in a position from which he can view a particular area. Hindi sinasadya na nandun sya. He was there for other valid reasons.

PEOPLE VS. QUE MING KHA (2002) Here, the police having received information that a van with a particular plate will be passing by in a certain barangay and that van contains shabu. In response to that, one police saw this van which figured in an accident and hit a boy. The van stopped, the driver got out and attempted to bring the boy to the hospital. The police responded to the vehicular incident. Since the windows are lightly tinted, he was able to see sacks or packages containing crystalline and since he knows na may hinihintay sila na van, he has a probable cause to believe that the crystalline is shabu. He peeped in the window and saw the packages of shabu. In this case, he searched and seized them. Is the search valid?

PEOPLE VS. VALDEZ (2000) In this case, the police were informed of a marijuana plantation. The following day, a police team was sent accompanied by the informer. They have to make a 3-hour uphill trek and when they reached the place, they found a nipa hut and they were still looking for the exact place where the marijuanas were planted. Would you say that the marijuanas were inadvertently discovered? In this case, they actually went there precisely to look for the marijuana plant. So, this is not a case of inadvertence. The marijuana plant here is deliberately sought. The last requirement is the illegality is immediately apparent. Meaning, upon seeing the object, you can already say that it is illegal.

Are the packages of shabu admissible?


Under the circumstances, there was a prior justification for the police to be there. What was the justification? Vehicular incident. Hindi niya sinasadya. Vehicular incident ang sadya nya and then he saw the shabu. There is a prior justification. Thus, this is an instance falling under the plain view doctrine. He has the right to be in that position to have that view because of that vehicular incident.

PEOPLE VS. DORIA (1999)

PEOPLE VS. ELAMPARO (2000)

Ito yung napakatugma na situation. Buy-bust operation. They arrested a certain person. That person was able to escape so hinabol ng police. Then the former entered the house of another person because probably kasama nya or gusto nya lang damayin. Because it is a hot pursuit case, the police is justified in running after him as well as the act of entering the house. Continuous yun. Timing, the accused here was seen repacking bricks of marijuana on top of the table. So this is actually a classic case of plain view doctrine. Hindi mo sinasadya, diba? Dumaan ka tapis nakita mo sya repacking marijuana. So the marijuana would be admissible. This is a valid plain view search. There's no need to secure first a warrant. They're already there.

Remember Doria and Ms. Nenette?doria was arrested and Nenette was also arrested because she was the one to whom Doria gave out the money. When they went to Nenette's house, the police saw a box under the table. The box was partially opened and there was something wrapped in plastic. As the plastic looked similar to the one they seized from Doria, the police opened it and found marijuana. Now, important to know here is that the marijuana here were individually wrapped in newspapers and then placed inside a plastic bag. Here, you cannot say that the illegakity of the evidence is immediately apparent. In fact, the police had to open each newspaper packages to see what's inside. So this would not qualify under the plain view doctrine.

PEOPLE VS. SALANGUIT (2001)

PEOPLE VS. PASUDAG (2001)

There is a search warrant here for undetermined quantity of shabu and drug paraphernalia. During the search, however, in

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addition to shabu, the police found and seized two bricks of marijuana leaves weighing some 1, 254 grams. If there is a search warrant, the first rule is that the search is only limited to the objects or things particularly described in the warrant. Can the police search or seize other objects which they would inadvertently discover and the illegalities of the objects are evident? Yes, under the plain view doctrine. Pwede. But I don't know what happened here. The SC said they cannot take the marijuana. The SC said that because they knew that the shabu was in the cabinet, it is reasonable to assume (assumption lang pala ang basis ng SC) that they found it first and having found it, they have no more justification to be there, they should have left. But my problem with this decision is it was only based on an assumption. There was actually no proof that they found it first but there was also no proof that they found the marijuana first. But actually, what you have to learn in this case is even if there is a warrant and the warrant is limited to certain objects, the police can still search and seize those objects of which the illegality is immediately apparent under the plain view doctrine because there is a prior justification to be there since there was a search warrant and the illegality of the object is immediately apparent and they came across the object inadvertently. REVALDO vs. PEOPLE (2009) MANALILI VS. CA (1998) Read the case of Revaldo v Pp and determine for yourself if you agree with the decision of the SC. here, there was information that the accused is in possession of lumber without the necessary documents then the police went to the place without a warrant and they saw the lumber lying around. And based on that, they searched the place and seized the lumber. But before that, they asked the person whether or not he has a license. I have a problem with this decision because first, the illegality of the object must be apparent. Diba, kita mo yung lumber. Sabi nung tao, I'm using that to build my house. What if that is true? So, you read this case and see for yourself if you agree with the decision of the SC. So, we already discussed search incident to a valid arrest, consented search and the plain view doctrine. Next valid instance of valid warrantless search is the search falling under the stop and frisk doctrine. STOP & FRISK DOCTRINE Stop and Frisk Doctrine states that a where a police officer observes unusual conduct which leads him reasonably to conclude in the light of his experience that criminal activity may be (?) ___ and the person he is dealing may be armed and presently dangerous, where in the course of investigating this behavior, he identified himself as a policeman and makes reasonable inquiries and when nothing in the initial stage of encounter serves to dispel this reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area, he is entitled to conduct a carefully limited search over the outer clothing of such person in an attempt to discover weapons which might be used to assault him. This is the ruling in the US case of Terry v Ohio decided in 1968. In that case, the police officer sometime in night saw two persons repeatedly walking in front of a store. This aroused the suspicion of the officer because when they returned to the same spot, they apparently conversed with a third man. In the light of his experience as a police officer, he has a reasonable basis to suspect that a criminal activity is going on. As far as his experience would say, the behavior of the men indicated that they were sizing up the store for robbery. Gabi, walang tao, dalawa sila pabalik-balik and then a third man came. So, The policemen were conducting surveillance in response to reports that drug addicts were roaming in front of Caloocan Cemetery. Then they chance upon a male person and observed that he have reddish eyes and walking in a sway manner as though he was high with drugs. So under the circumstances, as police officers it is expected for them to suspect that person since they were responding to reports of drug addicts in place. So they stopped the person, asked him to disclose what was in his wallet, the one that he was trying to hide, then frisked him when he refused to do so. So in his wallet was a pack of marijuana. So in this case, the Supreme Court said this will fall under stop and frisk doctrine. The same principle in the light of the policemen experience has reasonable basis to believe that a criminal activity could be ongoing. POSADAS VS. CA (1990) A case which happened in Davao City decided in 1990 but it happened in 1986 (peak of alsa masa). There were lots of rapes and homicide (an Ateneo student was raped and her body was thrown along Diversion Road). So here, the accused was seen roaming along Magallanes Street in front of RMC. Now there was a surveillance team in that spot or place. Now they saw this petitioner carrying a bagi bag and the petitioner actually escape, acting suspiciously and this is where the arguments would come in. he approached the 3 men, identified himself as a poloceman and he asked questions in an attempt to somehow remove that doubt. But after questioning them, he was just given fumble answers. This aroused his suspicion even more. So, he grabbed one of them, spun him around and frisked him (ala James Bond) and then he found a concealed weapon on one. He did the same on the other two and found a weapon. During the trial of the case, the three accused invoked violation of their constitutional rights. The US SC in this case of Terry v Ohio enunciated the "Stop and Frisk Doctrine". So here, the police officer observed an unusual conduct. The police officer has a reasonable basis to conclude in the light of his experience that a criminal activity is going on. The police officer would identify himself to the person and then he will ask initial questions. Now, of he is not satisified and he has more suspicion that there is a concealed weapon, he can do a limited search in the person of the accused. Take note here that in this instance, the search comes prior to the arrest. Baliktad sya ng search incidental to a valid arrest. Nauna ang search bago pa ang arrest.

What do you mean by acting suspiciously?


Pero for me, under the circumstances na magulo and Davao, everyone would be acting suspiciously, the police approached him, made initial inquiries and as a result nag panic sya, he attempted to flee or to run so that when he was arrested or captured his bag was inspected and inside were several firearms and ammunitions including tear gas and some other ammunitions like revolver. So during the appeal the solicitor general argue that it is a search incident to a valid arrest because at the time of the arrest he was committing an offense and he is carrying illegal weapons. The SC, said there has to be overt acts showing criminal activity, but in this case there is none. So it cannot fall under valid search

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incident to a valid arrest and the SC here observed that the search came first because he was asked to disclose his possession so he tried to run, this is an instance according to SC of a stop and frisk situation and the police acted legitimately under this doctrine. So at the time the peace officer in this case identified themselves and apprehended the petitioner, there is a probable cause where the petitioner acted suspiciously and attempted to flee. So this, according to the SC, is qualified or this is classified under the Terry vs. Ohio doctrine. PEOPLE VS. MENGOTE (1992) petitioner attempted to flee to her house nearby but was timely restrained by PO1 Cruzin who then requested her to take out the transparent plastic sachet from the cigarette case. After apprising petitioner of her constitutional rights, PO1 Cruzin confiscated the plastic sachet7 on which he marked her initials "SRE." With the seized item, petitioner was brought for investigation to a Pasay City Police Station where P/Insp. Aquilino E. Almanza, Chief of the Drug Enforcement Unit, prepared a memorandum8 dated December 10, 2002 addressed to the Chief Forensic Chemist of the NBI in Manila requesting for: 1) a laboratory examination of the substance contained in the plastic sachet to determine the presence of shabu, and 2) the conduct of a drug test on the person of petitioner. PO1 Cruzin and PO2 Aguas soon executed a Joint Affidavit of Apprehension9 recounting the details of their intended surveillance and the circumstances leading to petitioners arrest. In her present petition, petitioner assails the appellate courts application of the "stop-and-frisk" principle in light of PO1 Cruzins failure to justify his suspicion that a crime was being committed, he having merely noticed her placing something inside a cigarette case which could hardly be deemed suspicious. To petitioner, such legal principle could only be invoked if there were overt acts constituting unusual conduct that would arouse the suspicion. 17 HELD: That a search may be conducted by law enforcers only on the strength of a valid search warrant is settled. The same, however, admits of exceptions, viz: (1) consented searches; (2) as an incident to a lawful arrest; (3) searches of vessels and aircraft for violation of immigration, customs, and drug laws; (4) searches of moving vehicles; (5) searches of automobiles at borders or constructive borders; (6) where the prohibited articles are in "plain view;" (7) searches of buildings and premises to enforce fire, sanitary, and building regulations; and (8) "stop and frisk" operations.20 (emphasis underscoring supplied) In the instances where a warrant is not necessary to effect a valid search or seizure, the determination of what constitutes a reasonable or unreasonable search or seizure is purely a judicial question, taking into account, among other things, the uniqueness of the circumstances involved including the purpose of the search or seizure, the presence or absence of probable cause, the manner in which the search and seizure was made, the place or thing searched, and the character of the articles procured. Elucidating on what includes "stop-and-frisk" operation and how it is to be carried out, the Court in People v. Chua22 held:

There was a report by a telephone call that there were three suspicious looking persons at the cor. of Juan Luna, tondo Manila. So police officers were dispatched to the place and when they reached the place, they saw this three persons just alighting a jeepney, now one of the three persons was holding his abdomen and looks side to side, so because of that action, the policemen (arrested him)' they stop and frisk him. SC said there is nothing wrong in holding your abdomen and looking side to side, and it happened in broad daylight in a place where there are a lot of people, so it cannot be said that they are in suspicious circumstances, so it was not a valid warrantless search. PEOPLE vs. CHUA HO SAN

Note: Atty. J does not agree 100% with the SC

There was a report that an unfamiliar speed boat would be docking along the coast line, so there was a report of illegal smuggling. So the police officers went to the place and waited for that unfamiliar boat to arrive. When it came, there was a man carrying a straw bag so he was accosted and then he changed direction and tried to run. When he was arrested, it turned out that he was a Taiwanese who spoke no English and he was carrying a bag containing 28.7 kilos of shabu. The SC said it is not a valid search and seizure case. Although the boat is unfamiliar, there's no probable cause to suspect anyone alighting from it. Supposed to be it should dock somewhere where there is a proper immigration proceeding. So I think the place alone where it docked should be probable cause to question the person alighting from the unfamiliar boat. And besides, it turned out that he had no visa. But then, even if he had no visa the police had no knowledge that he was an illegal alien. Esquillo vs people just read daaaw. :) ESQUILLO vs. PEOPLE (2010) FACTS: On the basis of an informants tip, PO1 Cruzin, together with PO2 Angel Aguas (PO2 Aguas), proceeded at around 4:00 p.m. on December 10, 2002 to Bayanihan St., Malibay, Pasay City to conduct surveillance on the activities of an alleged notorious snatcher operating in the area known only as "Ryan." As PO1 Cruzin alighted from the private vehicle that brought him and PO2 Aguas to the target area, he glanced in the direction of petitioner who was standing three meters away and seen placing inside a yellow cigarette case what appeared to be a small heatsealed transparent plastic sachet containing white substance. While PO1 Cruz was not sure what the plastic sachet contained, he became suspicious when petitioner started acting strangely as he began to approach her. He then introduced himself as a police officer to petitioner and inquired about the plastic sachet she was placing inside her cigarette case. Instead of replying, however,

. . . the act of a police officer to stop a citizen on the street, interrogate him, and pat him for weapon(s) or contraband. The police officer should properly introduce himself and make initial inquiries, approach and restrain a person who manifests unusual and suspicious conduct, in order to check the latters outer clothing for possibly concealed weapons. The apprehending police officer must have a genuine reason, in accordance with the police officers experience and the surrounding conditions, to warrant the belief that the person to be held has weapons (or contraband) concealed about him. It should therefore be emphasized that a search and seizure should precede the arrest for this principle to apply.
This principle of "stop-and-frisk" search was invoked by the Court in Manalili v. Court of Appeals. In said case, the policemen chanced upon the accused who had reddish eyes, walking in a swaying manner, and who appeared to be high on drugs. Thus,

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we upheld the validity of the search as akin to a "stop-and-frisk." In People v. Solayao, we also found justifiable reason to "stopand-frisk" the accused after considering the following circumstances: the drunken actuations of the accused and his companions, the fact that his companions fled when they saw the policemen, and the fact that the peace officers were precisely on an intelligence mission to verify reports that armed persons w[h]ere roaming the vicinity. (emphasis and underscoring supplied; citations omitted)1wphi1 What is, therefore, essential is that a genuine reason must exist, in light of the police officers experience and surrounding conditions, to warrant the belief that the person who manifests unusual suspicious conduct has weapons or contraband concealed about him. Such a "stop-and-frisk" practice serves a dual purpose: (1) the general interest of effective crime prevention and detection, which underlies the recognition that a police officer may, under appropriate circumstances and in an appropriate manner, approach a person for purposes of investigating possible criminal behavior even without probable cause; and (2) the more pressing interest of safety and self-preservation which permit the police officer to take steps to assure himself that the person with whom he deals is not armed with a deadly weapon that could unexpectedly and fatally be used against the police officer.23 From these standards, the Court finds that the questioned act of the police officers constituted a valid "stop-and-frisk" operation. The search/seizure of the suspected shabu initially noticed in petitioners possession - later voluntarily exhibited24 to the police operative - was undertaken after she was interrogated on what she placed inside a cigarette case, and after PO1 Cruzin introduced himself to petitioner as a police officer. And, at the time of her arrest, petitioner was exhibiting suspicious behavior and in fact attempted to flee after the police officer had identified himself. It bears recalling that petitioner admitted the genuineness and due execution of the Dangerous Drugs and Toxicology Reports, subject, however, to whatever available defenses she would raise. While such admissions do not necessarily control in determining the validity of a warrantless search or seizure, they nevertheless provide a reasonable gauge by which petitioners credibility as a witness can be measured, or her defense tested. It has not escaped the Courts attention that petitioner seeks exculpation by adopting two completely inconsistent or incompatible lines of defense. On one hand, she argues that the "stop-and-frisk" search upon her person and personal effects was unjustified as it constituted a warrantless search in violation of the Constitution. In the same breadth, however, she denies culpability by holding fast to her version that she was at home resting on the date in question and had been forcibly dragged out of the house by the police operatives and brought to the police station, for no apparent reason than to try and extort money from her. That her two witnesses a daughter and a friend who were allegedly present at the time of her arrest did not do anything to report it despite their claim that they were not informed why she was being arrested, should dent the credibility of their testimony. Courts have tended to look with disfavor on claims of accused, such as those of petitioners, that they are victims of a frame-up. The defense of frame-up, like alibi, has been held as a shop-worn defense of the accused in drug-related cases, the allegation being easily concocted or contrived. For this claim to prosper, the defense must adduce clear and convincing evidence to overcome the presumption of regularity of official acts of government officials. This it failed to do. Absent any proof of motive to falsely accuse petitioner of such a grave offense, the presumption of regularity in the performance of official duty and the findings of the trial court with respect to the credibility of witnesses prevail over that of petitioner.

January 28, 2013 (MON) Transcribed by: Marlie Muoz

Last time we were talking about incidence of valid searches without arrest. Now can you tell me, what are these instances?

1. Search incident to a valid arrest 2. Search of evidence in plain view 3. Stop and frisk doctrine
SEARCH of MOVING VEHICLE ...the next one is the search of moving vehicle, now as we study this type of exception. Forget everything that we learn about valid searches without a warrant as we learned earlier. When it comes to searches of moving vehicles the SC takes a more liberal approach. Why? Because a moving vehicle, the fact that it is moving could be easily removed from the jurisdiction. In other words, there is no instance wherein the police office could secure the search warrant for that purpose because the object is moving, it could be readily, easily taken out of the jurisdiction of the police. Thus, the SC takes a more liberal approach. Now, ordinarily a police office is not authorized to plug down any vehicle just for the purpose of the search. Now, what is required therefore is he must have before the search a probable cause to conduct the search, extensive search of that, because what you should know about searches of vehicles is that, that is just part of the standard procedure. The police office can only do visual search (limited visual search). When can a police conduct an extensive search? There must be a probable cause to do so.

What do you mean with probable cause? Again, facts and circumstances, which will give you that suspension, that a crime is being committed by the occupant or the goods or effects of the crime can be found inside the vehicle.
ASUNCION vs. CA (1999) -Here there was an intensive campaign against illegal drugs in the city of Malabon. Now, the response of the chief of police is order his men to watch out for a certain Vic Vargas, he happened to be in a watch list of the police as among the known drug dealers. So while patrolling there was an informant, take note here there was an informant and he said that a particular vehicle will pass by, on board of which is Vic Vargas, or more importantly the vehicle would be transporting shabu. Now the police found this vehicle and then the police flagged down the vehicle in the course of the search, thereafter the police found a small quantity of shabu beneath the drivers seat; this is the classic example of a search of a moving vehicle.

What's the probable cause? The information of the informant.


Another probable cause is they already know Vic Vargas as one of the suspected drug dealers; he is already in the watch list of the police. So they know whom to caught, they even have information of the area wherein usually he stay and they saw this vehicle in the area. Here, there is probable cause to flag down the vehicle and conduct a search. This is a valid search without a warrant because the seArch is made in a moving vehicle. Again the

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purpose is to avoid evasion by the culprit because a moving vehicle can be easily removed from the jurisdiction of the police. PEOPLE vs VALDEZ (1999) In this case the policemen is just waiting for a ride then an informant approach them and that a certain thin, Ilocano carrying a green bag would be passing by on board a bus. He would be transporting marijuana. Acting on this information the police flagged down busses. On their 2nd bus he found the thin Ilocano person carrying a green bag. Before I go on, what's the description? Thin, Ilocano Person with green bag. We will remove the Ilocano person because how would we know that the person is Ilocano. So what's left in the description is thin and carrying a green bag, you don't even know if the person is male or female. But this thin person with a green bag would be riding a bus. Now is that information sufficient, would that now constitute probable cause, actually no diba!? But in this case, the SC said that the search and warrant was valid. The police acted on with the spot information, he had to act quickly thus, the search is valid. My only problem with that findings is what it naka ten na sya ka buses, ilang thin persons na ang sinerch Nya with green bag..madali Lang naman yun. PEOPLE vs BAGISTA (1992) There was also an information, the informant said that a certain woman with curly hair around 5'2 in height would be transporting marijuana from up north, based on this information the police established a checkpoint, what the police did was to flag down not only public buses/ transportation but they also flagged down private cars. Finally, they chance upon a bus and they found this woman with naturally curly hair, and the same description. They ask her to open her bag and inside the bag where some kilos of marijuana and the SC said that the search was valid, there was probable cause that the police flagged down the vehicle both public and private, there was probable cause for the police to search for the woman. The dissenting opinion of Justice Padilla states that, "if indeed it was true and you have this information earlier, they would not have search all of the passenger inside that bus, regardless of he is a man or a woman which is what they did. They would have also did not search all of the bags found inside the bus according to justice Padilla they conducted a fishing expedition until they found the person now based on this decision., I do not say that the SC is wrong but what i am saying and asking from you is that to be critical about the decision of the SC. You go to the basics, what are the establish principles, what is the law, what is the constitutional provisions and go from there, that is also applicable in all subject matter, cases assigned in all other subjects, be critical about the decisions of the Supreme Court. In this case what did we learn? kulang ang informtion as a police officer would you have reasonable ground to flagged down every bus, private vehicle. PEOPLE vs ARUTA Now this case is more like it, they have information that the certain aling rosa would be traveling, arriving from baguio. The bag that she brings with a large volume of marijuana. Aling rosa is the name(galing bagyo)there is an informant ready to point who is aling rosa. So they deploy themselves on the street of olongapo city, take note that shes gonna be on board of a victory liner bus. So when she alighted from the bus, the informer pointed to her sya si aling rosa, now the police went after her and they asked her to open her bag and indeed there was marijuana inside. Question: saan sa mga exceptions that you have learned would this search be justified? Is this a search incident a valid arrest? can you identify the search under valid arrest? why? ans. in a valid arrest/ search there must be an overt act, showing that the accused is committing an offense, here she just alighted from the bus and walking does not show that a crime is being committed. Question: Is this a search of evidence in plain view? Ans: of course not, because she was asked to open her bag. Question: is this a search of a moving vehicle? Ans: no, because she was no longer on board on a vehicle, she already alighted from the bus. Question: is this a search of / or a consented search because she handed down the bag? Ans: you know the rules of consented search, it must be unequivocal, clear, voluntary. In this case with the police man ano gagawin mo? So this case cannot fall under any of the circumstances that are considered as exceptional and it is more like it. PEOPLE vs GONZALES (2001)

(for atty. jumao-as this is the worst among the cases)


There was an information that a certain woman with long hair, wearing maong pants with jacket and rayban sunglasses, would be tranporting marijuana along the national highway and she will be carrying with her a traveling bag and she would be on-board a trisykad not even a tricycle. To cut the story short, the SC said that the search is valid, this is a search of a moving vehicle, because it can easily be remove from the jurisdiction of the police. So again, be critical, at least alam nyo Kung saan kaayo titirahin in case you already have clients. PEOPLE vs QUEBRAL (2009) This is more like it. This is a good decision. - Here the police was (seeking) informed that two men and a woman on-board an owner type jeep with specific plate number target. And that they would deliver shabu on a petrol gasoline station. This is the information as far as the police is concerned is probable enough so they found this jeep, followed the jeep until it park at the petron gasoline station. Until finally another vehicle arrives and the drivers of the fx and the jeep talked and there was an exchanged of envelope, so after that the police move and then cease the envelope and it turned out that it contained marihuana. So is this a search of moving vehicle? Yes, this is a good example and there was a probable cause to do an extensive search. Is there a sufficient time to secure warrant? No, it was a more or less on the spot information. So this is a valid search. So what is the common characteristic of all these cases? That to qualify as a search of moving vehicle 1. Reliable information is sufficient. Pwede ka Lang if naa Kay informant, now that information must be couple with other facts and circumstances like in this case, by handling the shabu.

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probable cause to open the bag? No! In fact the driver was very calm because there's no way to say that he is acting suspicious, because he knows that he is not violating any law. In this case the police abuse there authority which is limited only to visual search. Search pursuant to CUSTOM LAWS

2. The suspect is on board a vehicle. Thats why in the case of aruta, she was not on board, there is no search of a moving vehicle, but in the case of trysikad when she is on board that is valid. 3. There is a definite target. Meaning that the accused or suspect or vehicle is sufficiently described. 4. The most important one is, the lack of material time to secure a warrant. Now, a police checkpoint can also be the occasion of a search of a moving vehicle. Actually, most searches of a moving vehicle happen during or in a police check point. We will discuss the constitutionality of a police check point. Now again, even if yung sinabi ko earlier when it comes to checking a vehicle, even in the police checkpoint the police is also limited to visual search, the police cannot and should not conduct an extensive search, except when there is only probable cause to do so. Probable cause of facts and circumstances that would lead the conducting of searcher officer to believe that even the motorist was a law offender or they could find the instrumental evidence pertaining to the crime in the vehicle to be search. What would be the example of this. - what If the police ask a question and the driver gave an answer Different from the question asked, that would be enough for the police officer to suspect that something is going on. - another example you conduct a visual search and in the process of doing so you smell something, that as far as your experience is concerned it is closed to a marijuana smell, so in that case there is a reasonable ground to believe that the motorist is a law offender and there is a probable cause to conduct extensive search PEOPLE vs VINECARIO (2004) There is a comelec gun ban and the police officer establishes several checkpoints. When manning the checkpoint the police saw this motor vehicle, where three (3) men on-board but they did not stop at the checkpoint. Then the police have to blow their whistle to catch their attention. Now when they finally stop and interviewed one of them, he said that he is a police officer, but when he asked to present an identification but he failed to give. One of the passengers was wearing a black bag and when they asked him of the contents he said that it is a mat (banig), then he acted unusual and pass around the bag. There was a probable action based on their response, when the police inspected the bag they found a marijuana. The marihuana is admissible evidence; this is a good example of a search of moving vehicle. In Davao : the police would ask the driver to step down from the car then asked them to open the compartment, this is constitutionally questionable. ANIAG vs COMELEC (1994) Here there is also a Comelec Gun Ban. A congress man to whom a gun was issued, order his driver to return the gun to the bata sang pambansa complex. His driver took the gun, place it inside a bag and inside the compartment. When he reaches a comelec Checkpoint, the police ask him to open the compartment and the bag found inside. In this instance would you say that there is a

Another exemption or instance wherein search is valid even without a warrant is enforcement of CUSTOM LAWS. The search and seizure of goods suspected to be introduced in the country in violation of the customs law is one of the exception. So what are the custom code? It allows police authorities enter / pass through or search any land, enclosures, warehouse, store, bldgthat is not dwelling house and also to inspect, search, examine any vessel, air craft or any trunk, package box or anything or any person on board. They stop and search any people, persons, holding, things may dutiable or prohibited article if deal in the Philippines contrary to law. It is the discretion of an officer implementing the law. RIETA vs. PEOPLE (2004) For the officers who intercepted the truck and a toyota car, in response to a report that there were syndicated group engaged in smuggling activities. They intercepted the truck, the car and they search it and found a blue seal or unpacked cigarette. SALVADOR vs PEOPLE (2005) Here the search was conducted by members of the Philippine Air Force. The search was conducted with in the premises of ninoy Aquino intl airport to check a report of smuggling by PAL personnel. Now while conducting surveillance they saw this three 3 person boarding from the airbus, when they alighted from the plane, they observe that this three person has a bulging abdomen obviously not because of what they ate. So they search the three personnel and found out that there are expensive / branded watches amounting to sum of 1m, hidden in their stomachs. There is no need for them to secure a search warrant. This is an enforcement of custom laws. Watches and dutiable goods should be paid with the necessary taxes. Now take note that this is the phil. Airforce conducting police work. Is the action valid? Yes! They were given authorities pursuant to the enforcement of custom laws. Another exempting circumstance is EXIGENCY PEOPLE vs. DE GRACIA In this case there was a quo attempt in the time of pres. Ramos and there was actually active exchange of fires from the govt., man against the rebels. The military tried to penetrate the euro cars sales office, the rebel were there. But before that they happen to see several ammunitions and guns. Now they plan to get inside and search further and sees whatever they make take and they were able to retrieve firearms and ammunitions without the search warrant. The SC said that this is an unusual circumstance because of the urgency/ exigency of the situation there is no need for a search warrant, because what you have here is actual and active firing between the military and rebels. It is also a fact that the court is closed, so under the circumstances

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there is no court. Now exigency at this point according to the SC, would mean that the existence of the govt., is in the line. Take note here: Walay court, delikado sa safety ng military. In case of calamity, can this be applied? It's a case to case basis but if you're critical enough you can apply this case. AIRPORT SECURITY So when you are issued a ticket there is already an agreement to abide by the rules of the aircraft. What you have therefore is a contract between the passenger and the airline, this provision constitute that contract, so apart from the reasoning in People v Johnson, there is infact an agreement. JAIL SAFETY

SEC. 9. Every ticket issued to a passenger by the airline or air carrier concerned shall contain among others the following condition printed thereon: Holder hereof and his hand -carried luggage(s) are subject to search for , and seizure of, prohibited materials or substances. Holder refusing to be searched shall not be allowed to board the aircraft, which shall constitute a part of the contract between the passenger and the air carrier.

Now when it comes to security procedures in airport and jail,

Persons may lose the protection of the search and seizure clause by exposure of their persons or property to the public in a manner reflecting a lack of subjective expectation of privacy, which expectation society is prepared to recognize as reasonable. Such recognition is implicit in airport security procedures. With increased concern over airplane hijacking and terrorism has come increased security at the nations airports. Passengers attempting to board an aircraft routinely pass through metal detectors; their carry-on baggage as well as checked luggage are routinely subjected to x-ray scans. Should these procedures suggest the presence of suspicious objects, physical searches are conducted to determine what the objects are. There is little question that such searches are reasonable, given their minimal intrusiveness, the gravity of the safety interests involved, and the reduced privacy expectations associated with airline travel. Indeed, travelers are often notified through airport public address systems, signs, and notices in their airline tickets that they are subject to search and, if any prohibited materials or substances are found, such would be subject to seizure. These announcements place passengers on notice that ordinary constitutional protections against warrantless searches and seizures do not apply to routine airport procedures.
Now what are the searches conducted in the airport as a matter of standard procedure, passing through an X-ray machine and frisking. Was there an instance that one can say this is unreasonable? What we have here is, it is the society itself that accepts this minimum intuition as reasonable. Why? The consideration here is safety of the passengers and crew. Again, it is the society that accepts this kind of intuition as reasonable, given the gravity of the consideration of safety. Again, there is reasonable reduce expectation of privacy. PEOPLE vs JOHNSON (2000) A former Filipino citizen while in NAIA she was frisked and the lady who frisked her felt something hard in her abdomen, she asked her to stripped down in the cr and found Half kilo of shabu in her girdle. She invokes violation of section 2 of art III of the 1987 constitution. In addition to that reasoning for allowing searches in airport. PEOPLE vs CANTON (2002) the same thing happen, there is hard found in her abdominal area and found to have 1 kilo of shabu in her girdle. The SC court said there is a law governing and allowing this search. This is RA 6235.

PEOPLE vs CONDE (2001) The accused here was detained as a suspect in a robbery with homicide. One day he was visited by his wife. Before she was allowed to come inside, her bag was checked and inside was a knife allegedly used by her husband to kill the victim. Now can it be used as evidence against the accused? The primordial consideration is safety of the personnel inside and the prisoners. So the search is found to be in order, it is recognize as part of the pre-cautionary procedures. SEARCH BY PRIVATE PERSONS PEOPLE V MARTI (1991) The landmark case here is PEOPLE V MARTI. It was the courier who opens the package and when he saw the illegal drugs he reported this to nbi. The SC said that the search was made by a private person and in the absence of the govt. interference. The liberty guaranteed by the constitution cannot be invoked against the state, this constitutional right against unreasonable search and seizure records the immunity of the person wether citizen or allien from the interference of the govt., The bill of rights embody in the constitution is not meant to be invoke against the act of private individuals. PEOPLE vs BONGCAWARAN (2002) The accused here was on board mv super ferry (ship/ public transport). Inside the ship there were complaints of thief of jewelry, because of this complaint the security personnel of the vessel conducted searches on the baggages of the passengers, when they open the baggage of the accused they did not find the jewelry but found a shabu. Could this shabu be admissible as evidence? When the security personnel found the shabu they contacted the Phil. Coastguard and the Phil. Coast guard arrested the accused. Did the Phil. Coast guard acted properly? Was the search valid? There is an argument that the security personnel is an agent of the state? No! They are the agent of the vessel which is a private entity. Now the Phil. Coastguard can validly arrest him and then thereafter the evidence presented against the accused. PEOPLE vs MENDOZA (1999)

In the present case, the search was made pursuant to routine airport security procedure, which is allowed under Section 9 of Republic Act No. 6235 reading as follows:

This is the case of parricide. The husband killed the wife. The father of the disease went to the house of the husband to secure the belongings of his daughter now in the process of taking the properties/belongings he also found a document particularly the

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mission order and memorandum receipt for a .38 caliber revolver issued in the name of the accused and this was used as an evidence against him. Can this evidence be admissible? Can the police use this against the accused? Remember that the police took this document from the father of the victim. Was there a right violated? If there was any, this is covered by the civil law. GUIDE 1. Individual against individual - civil laws 2. Individual against the violation of the state - constitution 3. Individual committing against the state - the revised penal code. January 28, 2013 to make some issuances with regards to the proceedings or what should be observed when it comes to establishing checkpoints. So, that was only declared in the motion for recon. Thus, to be valid, search in the checkpoint should only involve a brief detention of travellers during which the occupants of the said vehicle are required to answer a brief question or two. Was this what happened in Valenzuela? Actually, there were reports that the military were committing "kotong". Checkpoints are centers or areas where the military could commit these crimes against individuals. Other than that, there was this incident of a municipal employee who have been hunted down in cold blood because he refused to accede to the checkpoint. First, a checkpoint must only be for brief detention of travellers and the traveller can be required to answer only a question or two. And the inspection of the vehicle is limited only to visual search. Finally, based on a US jurisprudence, the location of a checkpoint is fixed and it is not chosen by the officers in the field but by officers responsible for making overall decisions as to the effective allocation of limited enforcement resources. This is also in relation to the fact that checkpoints can also affect the flow of the traffic. And besides, the reason of the SC is if it is inconvenient for travellers, then they can always evade or avoid the checkpoints if they know where it is. There is nothing wrong with that. Read the dissenting opinion of Justices Cruz and Sarmiento. They do not accept the reasoning of the SC.

Transcribed by: Kirstin dela Cruz

SOME ISSUES OF CONSTITUTIONALITY CHECKPOINTS

Valmonte vs. De Villa (1989) Pursuant to a Letter of Instruction 02/87 of the Philippine Gen Headquarters, AFP, the National Capital Region District Command installed checkpoints in various parts of Valenzuela, Metro Manila. Petitioners herein aver that checkpoints are unconstitutional. According to them there were violations in the checkpoints. What did the SC say? Is the checkpoint in that particular place illegal? According to the SC, the petitioners were not able to present proofs to show the alleged violations. So, the decision of the SC is more on technical ground that there were no proofs or evidence or witnesses. There's a motion for reconsideration, what happened in that case? Was this a routine search? What was the purpose of establishing the checkpoint? In the first case, SC said that without requiring proof, they took judicial notice of the fact that rebels already started basing in urban areas. In order to plush out this alleged criminals and criminal activities, SC said that it was proper for the military to establish checkpoints. My problem with this decision is that it declared that the checkpoint is valid without looking at the factual circumstances and even one justice said that he experienced one of the checkpoints. Was the Philippines under martial law at that time? No, we already had a new Constitution at that time. What did the Constitution say about the tradition under Martial Law vis-a-vis the rights under the Constitution? What have you learned in Consti I? When martial law is declared, what happens to the Constitution? Martial law does not suspend the operation or effectivity of the Constitution. In this case, there is no martial law. There is only this fact of criminal activities in urban areas, in this case, Valenzuela. So, the SC in the motion for reconsideration, clarified that it was not declaring that all the checkpoints are legal or allowed but the checkpoint in this particular area is valid and checkpoints per se is not illegal. Also in this motion for recon, the SC enumerated certain requirements regarding checkpoints, which was actually the prayer of the petitioners in the first case. If they can't declare it as illegal, at least they require the military

CRUZ, J., dissenting: I dissent. The sweeping statements in the majority opinion are as dangerous as the checkpoints it would sustain and fraught with serious threats to individual liberty. The bland declaration 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. What is worse is that the searches and seizures are peremptorily pronounced to be reasonable even without proof of probable cause and much less the required warrant. The improbable excuse is that they are aimed at 'establishing an effective territorial defense, maintaining peace and order, and providing an atmosphere conducive to the social, economic and political development of the National Capital Region." For these purposes, every individual may be stopped and searched at random and at any time simply because he excites the suspicion, caprice, hostility or malice of the officers manning the checkpoints, on pain of arrest or worse, even being shot to death, if he resists. I have no quarrel with a policeman flashing a light inside a parked vehicle on a dark street as a routine measure of security and curiosity. But the case at bar is different. Military officers are systematically stationed at strategic checkpoint to actively ferret out suspected criminals by detaining and searching any individual who in their opinion might impair "the social, economic and political development of the National Capital Region." It is incredible that we can sustain such a measure. And we are not even under martial law. Unless we are vigilant of our rights, we may find ourselves back to the dark era of the truncheon and the barbed wire, with the Court itself a captive of its own complaisance and sitting at the deathbed of liberty. SARMIENTO, J., dissenting: I join Justice Isagani Cruz in his dissent, delivered so staightforwardly and eloquently. I am agreed that the existence alone of checkpoints makes search done therein, unreasonable

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and hence, repugnant to the Constitution. The Charter says that the people enjoy the right of security of person, home, and effects. (CONST., art. III, sec. 2.) It is also the bedrock the right of the people to be left alone on which the regime of law and constitutionalism rest. It is not, as the majority would put it, a matter of "occasional inconveniences, discomfort and even irritation." (Resolution, 4.) To say that it is, is so I submit to trivialize the plain command of the Constitution. Checkpoints, I further submit, are things of martial rule, and things of the past. They first saw the light of day by virtue of General Order No. 66 (AUTHORIZING THE CHIEF OF CONSTABULARY TO ESTABLISH CHECKPOINTS, UPDATE LISTS OF WANTED PERSONS AND CONDUCT DRAGNET OPERATIONS AND FOR OTHER PURPOSES), a martial law issuance, as amended by General Order No. 67 (AMENDING AND AMPLIFYING PARAGRAPH 7 OF GENERAL ORDER NO. 66 DATED SEPTEMBER 12, 1980), yet another martial law issuance. (See O.G. 4224-4226; 4226-4227 [Aug., 1983].) They are, so I strongly submit, repressive measures, the same measures against which we had fought so painstakingly in our quest for liberty, a quest that ended at EDSA and a quest that terminated a dictatorship. How soon we forget. While the right against unreasonable searches and seizures, as my brethren advance, is a right personal to the aggrieved party, the petitioners, precisely, have come to Court because they had been, or had felt, aggrieved. I submit that in that event, the burden is the State's, to demonstrate the reasonableness of the search. The petitioners, Ricardo Valmonte in particular, need not, therefore, have illustrated the "details of the incident" (Resolution, supra, 4) in all their gore and gruesomeness. In any event, the absence alone of a search warrant, as I have averred, makes checkpoint searches unreasonable, and by itself, subject to constitutional challenges. (Supra.) As it is, "checkpoints", have become "search warrants" unto themselves a roving one at that. That "[n]ot all searches and seizures are prohibited," the majority points out, is fine. And so is "a reasonable search is not to be determined by any fixed formula but is to be resolved according to the facts of each case." (Supra) But the question, exactly, is: Is (are) the search(es) in this case reasonable? I submit that it (they) is (are) not, for one simple reason: No search warrant has been issued by a judge. I likewise do not find this case to be a simple matter of an "officer merely draw(ing) aside the curtain of a vacant vehicle ... or simply look(ing) (supra) there, "or flash(ing) a light therein." (Supra) What we have here is Orwell's Big Brother watching every step we take and every move we make. As it also is, "checkpoints" are apparently, State policy. The American cases the majority refers to involve routine checks compelled by "probable cause". What we have here, however, is not simply a policeman on the beat but armed men, CAFGU or Alsa Masa, who hold the power of life or death over the citizenry, who fire with no provocation and without batting an eyelash. They likewise shoot you simply because they do not like your face. I have witnessed actual incidents. "Between the inherent right of the state to protect its existence ... and on individual's right against a warrantless search, which is reasonably conducted, "so my brethren go on, the former shall prevail. (Supra) First, this is the same lie that the hated despot foisted on the Filipino people. It is a serious mistake to fall for it a second time around. Second, the checkpoint searches herein are unreasonable: There was no warrant. Search and seizure in the first place must be made in pursuant to a valid warrant. Checkpoints in this instance would authorize the military and the police to conduct warrantless searches. As of the current jurisprudence and as how we understood it, extensive search can only be done when? When there is probable cause to believe that a person has committed a crime. Now, probable cause, example would be the case of Pp v ? (Sorry guys, i just can't understand what she was saying. I had other people listen to it and unfortunately dili pud nila masabtan. :/) According to that case, ayaw nilang idisclose dito cause it seems that the rights has to yield to the demands of national security and this ignores the fact that the Bill of Rights was intended precisely to limit the authority of the State even if this authority is asserted based on national security. The more that national security is imbalanced, the more the rights of the people should be protected. That's their point. It doesn't mean that since the military or the police failed in the law enforcement area kasi dumami daw yung mga rebels, dumami yung mga unlicensed firearms, the individuals and their rights must suffer. So that is the only point of J. Cruz and J. Sarmiento. So, that's why when it comes to checkpoints, remember the requirements: 1) Brief momentary period of detention; 2) Limited to visual search and; 3) Fixed place

People vs Exala (1993)

On 2 November 1982, at about 8:15 in the evening, a private jeep driven by accused-appellant Restituto B. Bocalan was stopped at a police checkpoint in Cavite City for routine inspection regarding unlicensed firearms and other prohibited items. With Bocalan were his co-accused Jaime P. Fernandez and Rodelio C. Exala. Pfc. Ricardo Galang, a member of the inspection team, went near the jeep and asked the occupants if there were firearms inside. They answered in the negative. Pfc. Galang then proceeded to inspect the vehicle by beaming a flashlight inside. He noticed a black leather bag measuring about one (1) foot wide and two (2) feet long with its sides bulging. He asked what it contained. There was deadening silence. Nobody answered. Instead, the three (3) accused, Restituto B. Bocalan, Jaime P. Fernandez and Rodelio C. Exala, suddenly became fidgety. Suspicious, Pfc. Galang ordered the bag opened. He found what he excitedly described as "marijuana, marijuana, napakaraming marijuana!" At this juncture, the three (3) remained motionless in their seats and appeared petrified with fear. They were brought to the police station that same night for further investigation. 2 after laboratory examination, the bag was verified to contain more than two (2) kilos of Indian hemp otherwise known as marijuana. 3 Thereafter, Rodelio C. Exala, Restituto B. Bocalan and Jaime P. Fernandez were accordingly charged for violation of Sec. 4, Art. II, of R.A. 6425, as amended. After trial, Bocalan was held guilty as principal and sentenced to life imprisonment. A fine of P25,000.00 was also imposed. 4 The other two (2) were convicted as accomplices and received lighter penalties. Fernandez appealed to the Court of Appeals. Exala did not. Bocalan, whose punishment is reviewable only by this Court, is now before us assailing his conviction; hence, We deal only with him in this appeal. So, the issue of probable cause is actually factual and evidentiary. So, it is up to now whether you are representing the accused or the State to prove this factual circumstance that there is probable cause. How can you say that a person acted suspiciously? (Atty. J talked about her experience in a checkpoint)

Again, you have the principles, you have the Constitutional provisions, you have the law but what you need to prove in court are the factual circumstances. Whether an act is suspicious or not

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is in the judges' hands. The legal issue is already established pero sa factual magkakatalo. AREAL TARGET ZONINGS What is Areal Target Zoning activity? It is also called Saturation Drives. This activity is common after the Martial Law. The police would go to a particular area and cordon the place. The area to them is a suspected place for criminals, drug addicts or pushers. So, they just knock on the door or if not, they forcibly open the door. They forcibly let the residents out, gathered in a particular area and are asked to kneel down. Then they are checked for certain tattoos nd some other marks in their bodies and then if they are suspicious, they are arrested. And while this physical body search is going on, some other police authorities will continue searching inside the houses. Based on what you learned in your constitutional law is this search valid? Of course, not! The first requirement of search and seizure is search warrant. If there is none, there are instances that would be valid. But none of these instances can be a qualification for this kind of searches. GUANZON vs. DE VILLA (1990) In the case of Guanzon v De Villa, the petitioners would like the SC to declare areal target zonings and saturation drives as illegal and unconstitutional. What was the ruling of the SC? Even in the description, it is easy to say that saturation drives do not have a place in the Philippine Constitution. However, the SC said that it is for the executive to make a policy and not the SC to make such declaration. What was the SC saying? It says that if the policy is to allow saturation drives, then it is valid. The SC actually evaded the question by saying that there are no specific complaints, no specific complainants, no witnesses, no proofs, no evidence. Based on technicality, they avoided answering the question but as a law student, pwede na mo mag qualify as SC Justice because you can already make a dissenting opinion regarding that. J. cruz said that the petition was dismissed based on technical grounds. Let's just say that there was no violation of human rights but the fact that the houses we forcibly entered upon, the residents were forcibly let out, gathered, and searched, kahit pa sabihin mong "Excuse me, Sir. Pwede pakihubad ng t-shirt?", there is no violation of human rights but the fact is, it was done without a warrant. Where is the search warrant or the warrant of arrest required by the Bill of Rights? Where is the probable cause that must be determined personally by the judge, and by no other, to justify the warrant? Where is the examination under oath or affirmation of the complainant and the witnesses he may produce to establish the probable cause? Where is the particular description that must be stated in the warrant, of the places to be searched and the persons or things to be seized? And where, assuming all these may be dispensed with is the admissible exception to the rule? Saturation drives are not among the accepted instances when a search or an arrest may be made without warrant. They come under the concept of the fishing expeditions stigmatized by law and doctrine. At any rate, if the majority is really introducing the "zona" as another exception to the rule, it must not equivocate. It must state that intention in forthright language and not in vague generalizations that concede the wrong but deny the right. I urge my brethren to accept the fact that those drives are per se unconstitutional. I urge them to accept that even without proof of the hooded figure and the personal indignities and the loss and destruction of properties and the other excesses allegedly committed, the mere waging of the saturation drives alone is enough to make this Court react with outraged concern.

So, let us just hope and pray that these drives will not happen again. So far, wala pa naman. Sa that is one sad decision of the SC. It refused to declare the saturation drives unconstitutional. For me, it is per se unconstitutional unlike checkpoints na pwede pa ma-justify. But when it comes to saturation drives, mean kaayo ang mga policemen. They just enter your house without justification. I don't think one can find any justification under our Constitution.

We're now done with Sec. 2.

Sec. 3 The Right to Privacy of Communication and Correspondence

In the dissent of J. Cruz: While acknowledging that the military is conducting the saturation drives, the majority practically blinks them away on mere technicalities. First, there are no proper parties. Second, there is no proof. Therefore, the petition is dismissed. The ruling 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. The saturation drive is not unfamiliar to us. It is like the "zona" of the Japanese Occupation. An area was surrounded by soldiers and all residents were flushed out of their houses and lined up, to be looked over by a person with a bag over his head. This man pointed to suspected guerrillas, who were immediately arrested and eventually if not instantly executed. Yet in the dead of night, armed soldiers may knock on one's door and command him at gunpoint to come out so he and his neighbors, who have also been rounded up, can all be placed on public examination, as in a slave market. This is followed by the arrest and detention of those suspected of villainy, usually on the basis only of the tattoos on their bodies or the informer's accusing finger.

The right to privacy is actually not just protected under Sec. 3 but even in Sections 1, 2, 6, 8, and 17. In search and seizure, that also protects your right to privacy. The right to privacy is also known as the right to be let alone. What is the extent of that right? We said that it is constitutionally protected but there should be that reasonable expectation of privacy.

1.

RIGHT TO PRIVACY

OPLE vs. TORRES (1998)

Thus, in the case of Ople v Torres, the SC nullified the administrative order mandating a national ID System because it violates the right to privacy the fact being that there is no restriction or limitation to this ID system. It does not limit what information you acquire from the person, what info shall be shared to others, who has the authority to view this personal information. So, it is violative of one's right to privacy. Here, the burden of the government is to show that its restriction is justified by some compelling state interest and that restriction is not withdrawn to

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protect that interest. SC said that the purpose of the ID system (just to do some transactions with the government) does not justify the gathering of too much (unlimited) information. However, the SC said in this case that it must be noted that the envelopes were not sealed in the first place, so, the military officers handling them can read them. The only time they cannot read them is when the letter comes from the prisoner's lawyer because there is confidentiality. So, these letters can be read and it is the same as opening packages to inspect for some contrabands. The SC further said that the detainees' right to privacy has that limitations inherent in lawful detention or imprisonment. By the fact of their detention, pre-trial and convicted detainees have a diminished expectation of privacy rights. Again, the letters can be read but it would be different if the envelopes were sealed. Maybe then, there would be a different ruling that they can be opened but not read. Now, there is another questionable decision by the SC. However, it still remains valid. Hndi pa sya na-overturn.

Now, distinguish that with >>> KMU v Director-General (2006)

Yung isa, under yun sa time ni Ramos. Ang KMU was during the time of Arroyo. She also mandated a national ID system. This time, the SC said it was valid. Why? The info to be taken from the individual is limited. There are only 14 items to be asked from an individual and the authority that has the right to view this information was also limited and specified. So, in this case, the national ID system per se would not be unconstitutional because it is in fact been observed by other nations. Only that the law itself has to provide for the limits on how much info will be taken from an individual who has the authority to access the info.

Zulueta vs. CA (1996)

IN RE: SABIO (2006)

We said that there must be that reasonable expectation of privacy. Here, Sabio and others are public officers and their offices are under investigation in a legislative inquiry. The inquiry focuses on their acts as such public officer. Will you have that reasonable expectation of privacy? Can you just invoke your right to privacy? NO because your acts as an official are supposed to be open to the public because of your accountability. In this case, there is no right to speak of. That is a reduced expectation of right to privacy.

Sec. 3 (1) actually speaks of communication and correspondence. Art III Sec 3 (1) Now, right to privacy of communication & correspondence refers to spoken communication and also other tangible forms of communication such as letters, messages, and also those type of communication made possible by modern technology as well as the intangibles such as eavesdropping (oh, mga chismoso, chismosa) and private communications through the use of electronic gadgets. Your right to privacy of communication and correspondence is guaranteed by the Constitution. The only time that the State can intrude is through a lawful order by the court or public order or safety requires it as prescribed by law.

In this case, it is the wife who ransacked the drawer of the husband in the latter's office. The opening of the drawer was witnessed by some ither witnesses. She was looking for evidence of her husband's infidelity. She found several letters from several paramours and used these as evidence in her action for legal separation. Are these letters admissible in evidence or does it constitute a violation of right to privacy of correspondence? As to our fundamental understanding of the Bill of Rights, we said that it can only be invoked or claimed against the State. Take note, it is the wife who opened the drawers. But here, the SC said (siguro prevalent yung men sa SC dito) that the letters were inadmissible in evidence because it violated the husband's constitutional right under Sec 3. Intimacies between husband and wife do not justify any one of them in breaking the drawers and cabinets of the other and in ransacking them for any telltale evidence of marital infidelity. A person, by contracting marriage, does not shed his/her integrity or his right to privacy as an individual (I believe in this! May pinaghuhugutan Ma'am? LOL) and the constitutional protection is ever available to him or her. But for me, I don't think you can claim a violation of the of your constitutional right at this point for me. As a wife, I have the right to open the drawers of my husband. :)

3. WIRE TAPPING

2. PRIVACY OF COMMUNICATIONS

In relation to the right to privacy of communication & correspondence is the Anti-Wire Tapping Law (RA 4200).

On the second instance, there must be a law allowing the intrusion to your right to privacy of communication and correspondence.

IN RE: ALEJANO (2005)

The petitioners here are military officers that are detained in prison in connection with their participation in a coup attempt. Now, while in detention, their unsealed letters, letters inside unsealed envelopes were read by the military prior to the handling of these letters to them. Was there a violation of the right to privacy of communication and correspondence? Now, the theory is that, when it comes to letters, you can just open them but not read them.

Sec. 1. It shall be unlawful for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or detectaphone or walkie-talkie or tape-recorder, or however otherwise described. .

If all the parties authorized the tapping, then that would be valid. My only problem here is the "authorized to secretly overhear". Paano naging secret yun eh inauthorize nga. That's my problem with the phrasing of the law. Other than that, wala na. What do you mean by wire tapping? What do you mean by any

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other device or arrangement? Is an extension telephone considered a violation of the anti-wiretapping law? originally announced in Stonehill v Diokno.

GAANAN VS. IAC (1986)

In this case of Gaanan v IAC, conversation was heard and recorded using the telephone extension line. Now the question is, is it covered under any other device or arrangement? The SC said NO. The law attacks those cables or wires for the purpose of secretly overhearing a private communication. There must either be physical interception to wire tap or deliberate installation of a device or arrangement in order to overhear or record the spoken words. An extension telephone cannot be placed on the same category of dictaphone, dictagraph or other devices enumerated in

Prior to Stonehill v Diokno (1968), the general policy is the State should not suffer if the officer blunders. Pag nagkamali ang officer, the evidence will still be admissible without prejudice to the officer being liable. But the SC in the case of Stonehill v Diokno said that the only way that we can demand the officers to observe the rights under Sections 2 and 3 is to make that evidence inadmissible. Ksi, what happens is they abuse this policy. Bahala na walang search warrant, we can convict the accused anyway.

Sec. 1. The use thereof cannot be considered ad "tapping" the wire or cable of a telephone line. This section refers to
instruments whose installation or presence cannot be presumed by the party or parties being overheard because, by their very nature, they are not of common usage and their purpose is precisely for tapping, intercepting, or recording a telephone conversation. With regards to an extension telephone, it is natural to presume that every telephone would have an extension line, so that anyone who is talking in the telephone should have that natural presumption that someone might be listening. In this case, the SC said that since it is usually used as a part of a regular telephone, it is not something that you did not expect to be present there. Because of that circumstance, an extension telephone is not covered under those other devices.

What do we mean by inadmissible? Inadmissible means it cannot be used as evidence against the accused but it can be used as evidence against the officer. The evidence though inadmissible does not necessarily be returned where it came from. If the object is not prohibited, it must be returned. However, if it is a contraband, it can be confiscated. Kung money yun, it is not illegal per se. It has to be returned. Pero kung drugs, alangan naman noh? Now, can this exclusionary rule be claimed? Yes. (I'm not quite sure though if I heard it right. Sorry. Hinay kaayo boses ni Atty. J) When can you assail the illegality of a search and seizure? It has been said that the failure to assail would validate the invalid search because you didn't question it.

PASTRANO vs. CA (1997)

What is the effect of the violation of this anti-wire tapping law?

The petitioner was charged and convicted of illegal possession of firearms. It was only in his petition for certiorari filed before the SC where it questioned the admissibility of evidence against him. He claimed that the search warrant was invalid. Can he question that for the first time before the SC?

Sec. 4. Any communication or spoken word, or the existence, contents, substance, purport, or meaning of the same or any part thereof, or any information therein contained, obtained or secured by any person in violation of the preceding sections of this Act shall not be admissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation.
This was applied in the case of Salcedo-Ortanez v CA.

Here, annulment of marriage na naman. This time, the husband asked his military friend to tap their telephone to overhear the conversations of his wife to her paramour. He presented in evidence the recorded conversation. Can he claim that the tapping was done by a private individual? No, because he asked his military friend to do the tapping. Even then, the anti-wire tapping law covers any person whether as agents of the State or as private individuals. So, it is illegal for anyone of us to tap our boyfriend's or girlfriend's phone. In this case, the recorded conversation cannot be admitted in evidence.

The SC said that this is a ground for quashing a search warrant but he should have quashed this at the very initiation of the case. He did not move the quash the information before the trial court nor did he question the presentation of evidence obtained as a product of the illegal search. At any rate, objections to the legality of the search warrant and to the admissibility of the evidence obtained thereby were deemed waived when no objection to the legality of the search warrant was raised during the trial of the case nor to the admissibility of the evidence obtained through said warrant. Petitioner thus waived any objection based on the illegality of the search.

EXCLUSIONARY RULE

Par. 2 of Sec. 3 is the exclusionary rule. There is no need to further elaborate on that because we've been hearing it ever since we studied Sec. 3 - the fruit of the poisonous tree. It bars the admission of illegally obtained evidence pursuant to the doctrine

Who may invoke or waive the right? The legality of the search and seizure can be invoked or waived only by the party whose rights have been impaired thereby. The objection to unlawful search and seizure is purely personal. It cannot be waived by third parties. What about illegality of the arrest, when should you assail it? The better rule is to assail it before arraignment. Why? What is the effect or implication of arrest? It is jurisdictional. The moment that you're arrested, the court acquires jurisdiction over your person. So of you attended the arraignment and you entered your plea whether you are guilty or not. You already submitted yourself to the jurisdiction of the court. Therefore, it is now immaterial whether the arrest is valid or not. In fact, as practiced by lawyers, they question the validity of the arrest as early as the serving of the information. They immediately move to quash the information because there is a legal problem in the arrest of the accused. The moment you submit yourself to the

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jurisdiction of the court. There is already a waiver to question the validity of the arrest. That is the ruling of the SC in Pp v Biyok. VALDEZ VS. PEOPLE (2007)

The accused here was allegedly arrested without a warrant and thereafter, his belongings were searched. Later, it was found out that the arrest without a warrant was illegal. However, he failed to question the illegality of his arrest. Will it affect the illegality of the search? Because this seemed to be a search incidental to a valid arrest. If the arrest is later on declared as invalid, the search would also be invalid. But if the accused failed to question the validity of the arrest, he already participated in the trial, he entered his plea, can he still question the legality of the search and seizure? Yes. It doesn't mean, therefore, that if there is a waiver of the arrest, there is also an automatic waiver of the illegality of the search. In this case, citing PP vs. BACLAAN, a waiver of a warrantless arrest does not also mean a waiver of the inadmissibility of evidence seized during an illegal warrantless arrest. Arrest affects only the validity of the jurisdiction over the person of the accused.

End of First Exam Coverage (Consti 2)


Far better it is to dare mighty things, to win glorious triumphs even though checkered by failure, than to rank with those poor spirits who neither enjoy nor suffer much because they live in the gray twilight that knows neither victory nor defeat. Theodore Roosevelt via Mike Jones Success is a lousy teacher, it seduces smart people into thinking they cant lose Bill Gates via Ryan Seitz

Prayer succeeds when all else fails" God Bless Us Guys!

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