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CONSTITUTIONAL LAW –BILL OF RIGHTS Dean Hilario Justino F. Morales Police Power 01. Define police

CONSTITUTIONAL LAW –BILL OF RIGHTS

Dean Hilario Justino F. Morales

Police Power

01. Define police power. What are the two tests, requisites or limitations for the valid exercise of

police power?

ANSWER: Police power is the power to make, ordain, and establish all manner of wholesome and reasonable laws, statutes, ordinances whether with penalties or without, not repugnant to the Constitution, the good and welfare of the commonwealth, and for the subjects of the same. (MMDA vs . Garin, GR No. 130230, April 15,

2005)

1) Lawful Subject – the interest of the public in

general, and not of a particular subject, requires an interference with private rights, and 2) Lawful Means- the means adopted must be reasonably necessary for the accomplishment of the purpose It must not be unduly

oppressive upon individuals. (City of Manila vs. Laguio, GR No.118127, April 12, 2005)

02. Upon whom is police power lodged? May it be delegated? What are the limitations if the

exercise of police power is merely delegated? ANSWER: Police power is lodged with the National Legislature which in turn may delegate it to local government units. Congress has delegated police to the LGU’s in the Local Government Code of 1991. The other limitations if the exercise of police power is merely delegated are: 1) the delegation is by express provision of law, 2) it must be exercised within the territorial limits of the delegate, and 3) such exercise is not contrary to law.

03. Does the MMDA have the power to confiscate, suspend or revoke drivers’ licences?

ANSWER: NO. the MMDA does not have the power to confiscate, suspend or revoke drivers’ licences without a traffic law or regulation validly enacted by the legislature or those of the local government units to whom legislative powers have been delegated. Once there is such a law, MMDA is duty-bound to confiscate, suspend or revoke drivers’ licences in the exercise of its mandate of transport and traffic management. License to operate a motor vehicle is not a property, but a privilege granted by the state which may be suspended or revoked by the state in the exercise of its police power, in the interest of public safety and welfare, subject to the procedural requirements of due process. (MMDA vs . Garin, supra.)

04. The Expanded Senior Citizens Act of 2003 grants to senior citizens 20% discount from all

establishments relative to the utilization of services in hotels and similar establishments as well as purchases of medicines. State the nature or justification of the law. ANSWER: The law is a legitimate exercise of police power which, similar to the power of eminent domain, has the general welfare for its object. When conditions so demand as determined by the legislature, property rights must bow to the primacy of police power because property rights, though sheltered by due process, must yield to the general welfare. (Carlos Super Drug Corp. vs. DSWD, GR No. 166494, January 29, 2007)

Power of Eminent Domain

05. What is the power of eminent domain? What are the constitutional limitations in the exercise of

The two tests for the valid exercise of police power are:

the power of eminent domain?

ANSWER: The power of eminent domain is the “rightful authority, which exists in every sovereignty to control and regulate those rights of public nature which pertain to its citizens in common, and to appropriate and control individual property for the public benefit, as the public safety, necessity, convenience, or welfare may demand. The exercise of the power of eminent domain is constrained by two constitutional provisions: (1) that private property shall not be taken for public use without just compensation under Article III, Section 9 on Bill of Rights and (2) the due process clause which states that no person shall be deprived of life, liberty or property without due process of law also under Article III, Section 1. (Lagcao vs. Labra, GR No. 155746, October 13,

2004)

06.

Distinguish the power of eminent domain from police power.

ANSWER: In the exercise of the power of eminent domain, the taking of property is for public use while in the exercise of police power, the taking is a mere incident to a valid regulation to promote public interest. In the exercise of eminent domain, property or right of property is taken from the owner and transferred to a public agency to be enjoyed by its as its own while in the exercise of police power, the taking of property or a right therein is accomplished not by transfer of ownership but by destroying the property or impairing its value.

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07. Distinguish the effects of the exercise of police power and the power of imminent domain in

relation to the right to private property. ANSWER: In the exercise of police power, there is a limitation or restriction of property interests to promote public welfare which involves no compensable taking. Compensation is necessary only when the state’s power of eminent domain is exercised. In eminent domain, property is appropriated and applied to some public purpose. Property condemned under the exercise of police power, on the other hand, is noxious or intended for noxious or forbidden purpose, and consequently, is not compensable. The restriction imposed to protect lives, public health and safety from danger is not a taking. It is merely the prohibition or abatement of noxious use which interferes with paramount right of the public. (Social Justice Society vs. Atienza, 545 SCRA

92)

08.

What are the two limitations in the expropriation of lands for socialized housing under Sec. 9

of RA 7279, otherwise known as the Urban Development and Housing Act of 1992? ANSWER:1) it shall be resorted to only when the other modes of acquisition have been exhausted; and 2) parcels of land owned by small property owners are exempt from such acquisition. (City of Mandaluyong vs. Aguilar, 350 SCRA 487)

09. May LGU’s exercise the power of eminent domain? May LGU’s validly expropriate small lots to accommodate no more than few tenants or squatters?

ANSWERS: YES. While LGU’s have no inherent power of eminent domain, by virtue of the Local Government

C o d e ,

NO. Condemnation of small private lots in an irrational or piecemeal fashion or the random expropriation of small lots to accommodate no more than a few tenants or squatters is certainly not the condemnation for public

use contemplated by the Constitution. This is depriving a citizen of his property for the convenience of a few without perceptible benefit to the public. While housing is one of the most serious problems of the country, LGU’s do not possess unbridled authority to exercise their power of eminent domain in seeking solutions to this

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10. What are the additional limitations on the exercise of the power of eminent domain by

local government units? ANSWER: 1) To be exercised only by the local chief executive, acting pursuant to a valid ordinance 2) For public use or purpose or welfare, for the benefit of the poor and the landless 3) Only after a valid and definite offer had been made to, and not accepted by, the owner.

11. May a barangay government expropriate a property which shall be used as a feeder road for the

benefit of the residents of Purok Paraiso, yet the Purok is within a private subdivision? ANSWER: NO. The expropriation was intended for private purpose. It would benefit only the owners of the subdivision who will be able to circumvent the commitment to provide road access to the subdivision and relieved from spending their funds for a right of way. The intended expropriation of private property for the

benefit of a private individual is clearly proscribed by the Constitution, declaring that it should be for public use

or purpose. Likewise, public fund can be used only for a public purpose. In this proposed condemnation,

government funds would be employed for the benefit of a private individual without any legal mooring. (Barangay Sindalan vs. CA, GR No. 150640, March 22, 2007)

12. Spouses H and W were the lessees of a parcel of land in Quezon City. A law was enacted

authorizing the national government to expropriate certain properties, among others, for the extension of EDSA. The land leased by H and W was part of those expropriated under the said law. They were not included in the expropriation proceedings because they were mere lessees of the property, according to the Solicitor General. To be entitled to just compensation, should the defendant be the owner of the property expropriated?

ANSWER: NO. The defendants in an expropriation case are not limited to the owners of the property

condemned. They include all other persons, owning, occupying, or claiming to own the property. When a parcel

of land is taken by eminent domain, the owner of the fee is not necessarily the only person entitled to

compensation. A lessee, mortgagee, or a vendee in possession under an executory contract of the land has the right to take part in the expropriation proceeding. If a person claiming an interest in the land sought to be

condemned is not made a party, he is given the right to intervene and lay claim to the compensation. (Knecht vs. CA, GR No. 108015, May 20 1998)

13. A property was converted into an airport by the Air Transportation Office (ATO) depriving the

owners of the beneficial use and enjoyment of the same as early as 1948 without an expropriation proceeding. It was contended that there was taking, hence, just compensation should be reckoned from 1948. Is the contention legally tenable?

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ANSWER: NO. As a general rule, the determination of just compensation in eminent domain cases is reckoned from the time of taking. (Gabatin vs. LBO, 444 SCRA 176) In this case, however, application of the said rule would lead to grave injustice. Note that the ATO had been using the property as airport since 1948 without having instituted the proper expropriation proceedings. To peg the value of the property at the time of taking in 1948, despite the exponential increase in its value considering the lapse of over half a century, would be iniquitous. ATO cannot conveniently invoke the right of eminent domain to take advantage of the ridiculously low value of the property at the time of taking that it arbitrarily chooses to the prejudice of the owners. Justice and fairness dictate that the appropriate reckoning point for the valuation of the property is when the trial court made its order of expropriation in 2001. (Heirs of Mateo Pidacan and Romana Eigo vs. ATO, GR No. 162779, June 15, 2007)

Bill of Rights

14. What is the Bill of Rights? Can the Bill of Rights be invoked against private

individuals? ANSWERS: It is a set of prescriptions setting forth the fundamental civil and political rights of the individual, and imposing limitations on the powers of government as a means of securing the enjoyment of those rights. NO. In the absence of governmental interference, the liberties guaranteed by the Constitution cannot be invoked. The Bill of Rights is not meant to be invoked against acts of private individuals. (Yrasegui vs. PAL, Inc. GR No. 168081, October 17, 2008)

Concept of Due Process

15. What is due process? What are its purposes? Who are covered by the due process clause?

ANSWERS: There is no controlling and precise definition of due process but its standard may be described. This standard may be described as responsiveness to the supremacy of reason, obedience to the dictates of justice, and as such, it is a limitation upon the exercise of police power. Among the purposes of the guaranty of the right to due process area: 1) to prevent governmental encroachment against the life, liberty and property of individuals, and 2) to secure to all persons equal and impartial justice and the benefit of the general law. (City of Manila vs. Laguio, supra.) The guarantee serves as protection against arbitrary regulation, and private corporations and partnerships are persons within the scope of the guaranty insofar as their property is concerned. (Ibid.)

16. Distinguish procedural from substantive due process and constitutional from statutory due

process. ANSWER: Procedural due process is essentially directed at officers who adjudicate while substantive due process is directed basically at those who enact the laws. Procedural due process refers to the guarantees of fairness in the process of determining whether aright, liberty or freedom is to be impaired while substantive due process goes to the very power of the authorities to come up with rules. Constitutional due process when violated would lead to the nullity of the action made, while statutory due process would not necessarily nullify the action made, depending on what the statute itself provides.

Due Process and Preliminary Investigation

17. The charge filed against petitioner was modified from violation of Art. 220 (Technical

Malversation) of the Revised Penal Code to violation of Secs. 3(e) and 3(h), RA 3019. Petitioners claim that their right to due process was denied since they were not given the opportunity to answer and present evidence on the new charge in a preliminary investigation. Decide. ANSWER: The petition lacks merit. The right to a preliminary investigation is not a constitutional right but it is merely conferred by statute. The absence of a preliminary investigation does not impair the validity of Information or otherwise render the same defective. The denial of the motion for reinvestigation cannot likewise invalidate the Information or oust the court of its jurisdiction over the case. Petitioners were not denied due process because they had the opportunity to refute the charges by filing their counter-affidavits. The modification of the offense charged was based on the same set of facts and the same allegedly illegal acts. Furthermore, the right to preliminary investigation is deemed waived when the accused fails to invoke it before or at the time of entering a plea on arraignment. (Budiongan vs. dela Cruz, GR No. 170288, Sept. 22, 2006)

18. A respondent claim denial of due process when she was given the opportunity to file her

affidavits and other pleadings and submit evidence before the DOJ during the preliminary investigation of her case and before the Information was filed against her. Decide. ANSWER: There is no denial of due process. Due process is merely an opportunity to be heard. In addition, preliminary investigation conducted by the DOJ is merely inquisitorial. It is not a trial of the case on the merits. Its sole purpose is to determine whether a crime has been committed and whether the respondent therein is probably guilty of the crime. It is not the occasion to the full and exhaustive display of the parties’ evidence.

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Hence, if the investigating prosecutor is already satisfied that he can reasonably determine the existence of probable cause based on the parties’ evidence thus presented, he may terminate the proceedings and resolve the case. (Santos vs. People, GR No. 173176, August 26, 2008)

19. Is there a violation of the right due process if members of a faction of the Liberal Party were

expelled from said party in a meeting where they were not even notified nor given the chance to be heard? ANSWER: NO. Due process could be invoked only before tribunals created by the State through which governmental acts or functions are performed. The right to due process guards against unwarranted encroachment by the State into fundamental rights and cannot be invoked in private controversies involving private rights. (Atienza vs. COMELEC, February 16, 2010)

Overbreadth Doctrine and Void for Vagueness Doctrine

20.

Define/explain briefly the following doctrines:

 

(1)

Overbreadth Doctrine

(2)

Void for Vagueness Doctrine

(1)

The Overbreadth Doctrine states that “a governmental purpose may not be achieved by means which

(2)

sweep unnecessarily broadly and thereby invade the area of protected freedoms.” In David vs. Ermita, the Supreme Court prevented the government, pursuant to Presidential Proclamation 1017 and General Order No. 5, from hunting down terrorists since “acts of terrorism” had not been defined and made punishable by Congress. The Void for Vagueness Doctrine which renders a law invalid “if men of common intelligence must

necessarily guess at its meaning and differ as to its application. Thus, a statute may be rendered void

its terms are uncertain or not sufficiently definite rendering it incomprehensible to ordinary people and thereby making the enforcement of the law arbitrary and subject to abuse. Such a vague or ambiguous piece of legislation is repugnant to the Constitution in two respects: 1) it violates due

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process for failure to accord persons fair notice of what conduct to avoid and 2) it leaves law enforcers unbridled discretion in carrying out its provision. The doctrine provides a rule to the effect that a statute establishing a criminal offense must define the offense with sufficient definiteness that persons

of

ordinary intelligence can understand what conduct is condemned.

21.

R challenges the validity of Section 5 of RA 3019, a penal statute on the ground that the act

constituting the offense is allegedly vague and “impermissibly broad” and thus violated due process right of individual to be informed of the nature and cause of accusation against him. Will his suit prosper? ANSWER: NO. overbreadth and vagueness doctrine have special application only to free speech cases. They are not appropriate for testing the validity of penal statutes. When the allegation in the information is vague or indefinite, the remedy of the accused is not a motion to quash, but a motion for a bill of particulars. (Romualdez vs. Sandiganbayan, 435 SCRA 371)

A statute or regulation is considered void for overbreadth when it offends the constitutional principle

that a governmental purpose to control or prevent activities constitutionally subject to State regulation may not be achieved by means that sweep unnecessarily broadly and thereby invade the area of protected freedoms. (Chavez vs. COMELEC, 437 SCRA 415)

22. What is the effect of an “on its face” invalidation of criminal statutes? What is the test in

determining whether a criminal statute is void? ANSWER: The test in determining whether a criminal statute is void for uncertainty is whether the language conveys a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice. The vagueness doctrine merely requires a reasonable degree of certainty for the statute to be upheld – not absolute precision or mathematical exactitude. Facial invalidation or an “on its face” invalidation of criminal statutes is not appropriate because it would result in a mass acquittal of parties whose cases may not have even reached the courts. Such invalidation would constitute a departure from the usual requirement of “actual case and controversy” and permit decisions to be made in a sterile abstract context having no factual concreteness. The test in determining whether a criminal statute is void for uncertainty is whether the language conveys a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice. The vagueness doctrine merely requires a reasonable degree of certainty for the statute to be upheld – not absolute precision or mathematical exactitude. (Romualdez vs. Sandiganbayan, supra.)

Concept of Equal Protection

23. What is your understanding of the equal protection clause? Does it take way from the State the

power to classify? What are the requisites of valid classification? ANSWER: The guaranty to equal protection and uniformity is satisfied 1) when the laws operate uniformly on all persons under similar circumstances, and 2) all persons are treated in the same manner in terms of both privileges conferred and liabilities imposed, the conditions not being different, and that favoritism and

preference are not allowed.

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NO. The equal protection clause does not take away from the state the power to classify in the adoption of police power laws, but admits of the exercise of the wide scope of discretion in that regards and avoids what is done only when it is without any reasonable basis, and therefore is purely arbitrary. (Re: Request for the grant of Special Distortion Allowance, A.M. No. 03-11-25-SC, October 1, 2004) The requisites of valid classification are: 1) there must substantial distinctions which must make for real differences; 2) the classification must be germane to the issue; 3) it must apply not only to existing conditions but future conditions as well; and 4) it must be applicable to all members of the same class. (People vs. Vera, 65 Phil 56)

Judicial Standards of Review

24. What is the so-called Rational Basis Test? Strict Scrutiny Test? Intermediate Scrutiny Test?

ANSWER: The rational basis test is the minimum level of scrutiny that all government actions challenged under the equal protection clause must meet. The strict scrutiny test is used in discriminations based on race or those which result in violations of fundamental rights. Under this test, to be valid the classification the classification must promote a compelling state interest. The intermediate scrutiny test is used in discriminations based on gender or illegitimacy of children. Under this test, the classification must be substantially related to an important

government objective.

25. The President issued an EO creating the Philippine Truth Commission of 2010 to investigate

“officers and employees of the previous administration for graft and corruption . The constitutionality of the said EO was questioned on the ground that it violates the equal protection clause of the Constitution. Decide with reasons. ANSWER: The EO is unconstitutional for violation of the equal protection clause. It singles out the officials of the previous administration only even though there are also alleged graft and corruption in other administration before that of president Arroyo. (Biraogo v. Philippine Truth Commission, December 7, 2010)

26. The petitioners assail the validity of Administrative order No. 1, which prohibited motorcycles

on limited access highways on the basis of RA 2000 (Limited Access Highway Act). The petitioner seeks redress from the motorcycle ban under the equal protection clause, because AO 1 singled out motorcycles. Decide. ANSWER: There is a real and substantial distinction between a motorcycle and other motor vehicles. Not all motorized vehicles are created equal – real and substantial differences exist between a motorcycle and other forms of transport sufficient to justify its classification among those prohibited from plying the toll ways. (Mirasol vs. DPWH, GR No. 158793, June 8, 2006)

27. Does the VAT Law violate the due process and equal protection clauses when it reduced the input credits to only 70% of output VAT?

ANSWER: NO. Input VAT is not a property or a property right within the constitutional purview of the due process clause being merely a statutory privilege. Persons have no vested rights in statutory privileges. The State may change or take away rights, which were created by laws of the State, although it may not take away property, which was vested which was vested by virtue of such rights. (Abakada Guro PartyList vs. Ermita, GR

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28.

Does a city ordinance that prohibit motels and inns in the Ermita-Malate area but not outside of

?

ANSWER: YES. A city ordinance violates the equal protection clause where it prohibits motels and inns but not pension houses, hotels, lodging houses or other similar establishments despite the fact that these establishments are all similarly situated. Furthermore, it prohibits the business and operation of motels in the Ermita-Malate area but not outside of this area. There is no valid classification because a noxious establishment does not become any less noxious if located outside the area. (City of Manila vs .Laguio, supra.)

Search and Seizure; Probable Cause

29. What are the requisites for issuing a search warrant? What are the two kinds of probable

cause? What are the requisites in the determination of the existence of probable cause? ANSWER: A search warrant shall not issue but 1) upon probable clause 2) in connection with one specific offense a) to be determined personally by the judge b) after examination under oath or affirmation of i) the complainant ii) the witness he may produce, and 3) particularly describing a) the place to be searched and b) the things to be seized i) anywhere in the Philippines. The two kinds of probable cause are: 1) the executive determination of probable cause by the Prosecutor where he determines whether to file a criminal in court or not; and 2) judicial determination of probable cause to be done by the judge for the purpose of issuing a warrant of arrest against the accused. ( Leviste v. Judge Alameda, August 3, 2010) Under the Constitution and the Rules of Court, the issuance of a search warrant is justified only upon a finding of probable cause. In determining the existence of probable cause, it is required that: (1) the judge must examine the complainant of his witness personally; (2) the examination must be under oath; and (3) the examination must be reduced in writing in the form of searching questions and answers. In People vs.

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Mamaril, GR No. 147607, January 22, 2004, the records only show the existence of an application for search warrant, the affidavits of complainant’s witnesses and return of the search warrant. The prosecution failed to prove that the issuing judge put into writing his examination of the applicant and his witnesses in the form of searching questions and answers before issuance of the search warrant, rendering the search warrant invalid and the evidence seized pursuant thereto is inadmissible.

30. May the constitutional protection against unreasonable searches and seizures be extended to

acts committed by private individuals? ANSWER: NO. As held in People vs. Marti, 193 SCRA 57, the constitutional protection against unreasonable searches and seizures refers to the immunity of one’s person from interference by government and it cannot be extended to acts committed by private individuals so as to bring it within the ambit of alleged unlawful intrusion. (People vs. Mendoza, 301 SCRA 66)

31. What are the instances of valid warrantless searches and seizures?

ANSWER: 1) search incident to a lawful arrest 2) when it involves prohibited articles in “plain view.” 3) search of a moving vehicle 4) consented warrantless search 5) customs searches 6) searches without warrant of automobiles 7) “Stop and frisk” 8) Exigent and emergency circumstances . (People vs. Nuevas, GR No. 170233, Feb. 22, 2007)

32. What is probable cause in warrantless arrest?

ANSWER: Probable cause means an actual belief or reasonable ground of suspicion. Thus, there is no “personal knowledge of facts” where the police officers merely relied on information given to them by others such as a report of the killing, information from a witness who saw the killing, the physical description given of

the last man who saw the victim fitting the person arrested and information where this man lived. (People vs. Cubcubin, GR No. 136267,July 10, 2001)

33. What is the “plain view doctrine”?

ANSWER: Objects falling within the plain view of an officer who has a right to be in the position to have that view are subject to seizure even without search warrant and may be introduced in evidence.

34. What is the “Fruit of the Poisoned Tree” Doctrine?

ANSWER: Evidence obtained from illegal search and seizure shall be inadmissible for any purpose in any

proceedings. [Art. III, Sec. 3(2)]

35. EJ sought the assistance of police officers NM and ER regarding a shooting incident. The police officers immediately responded to said complaint by proceeding to 5 th Avenue St. where they found a white taxi. While approaching the said vehicle, two armed men, one of them C, alighted therefrom, fired their guns towards the responding police officers and ran away. The lawmen chased them and they were subdued. PO NM recovered from C a black bag containing two bricks of dried marijuana fruiting tops and a magazine of super 38 stainless with ammos while PO ER recovered from C’s companion a .38 revolver. C was charged and subsequently convicted of illegally possessing dangerous drugs. C questions the admissibility of the marijuana found in his possession on the ground that it was discovered via an illegal search not having been within the apprehending officers “plain view.” Decide.

ANSWER: The Plain View Doctrine is actually the exception to the inadmissibility of evidenced obtained in a warrantless search incident to a law arrest outside the suspect’s person and premises under his immediate control. The Doctrine thus finds no applicability in C’s situation because the police officers purposely search him upon his arrest. The police officers did not inadvertently come across the black bag, which was in C’s possession; they deliberately opened it as part of the search incident to C’s lawful arrest. (People v. Calantiao, GR No. 203984, June 28 2014; 727 SCRA 20)

36. Can the place to be searched, as set out in the warrant, be amplified or modified by the officers’

own personal knowledge of the premises, or the evidence they adduce in support of their application for warrant? ANSWER: NO. Such a change is proscribed by the Constitution which requires inter alia the search warrant to particularly describe the place to be searched as well as the persons or things to be seized. It would concede to the police officers the power of choosing the place to be searched, even if it not be that delineated in the warrant. It would open wide the door to abuse of the search process, and grant to officers executing a search warrant that discretion which the Constitution has precisely removed from them. The particularization of the description of the place to be searched may properly be done only by the judge, and only in the warrant itself; it cannot be left to the discretion of the police officers conducting the search. (People vs. CA, 291 SCRA 400)

Right to Privacy & Reasonable Expectation of Privacy Test

37. (1)

Define right to privacy.

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(2)

Does the installation of a revolving camera by an owner of an adjacent lot overlooking the fenced side lot of a neighbor where there is an on-going construction violate the latter’s right to privacy?

ANSWERS:

(1)The right to privacy is defined as the right of an individual to be free from unwarranted exploitation of one’s person or from intrusion into one’s private activities in such a way as to cause humiliation to a person’s ordinary sensibilities. It is the right to be free from unwarranted publicity, or to live without interference by the public in matters in which the public is not necessarily concerned. Simply put, the right to privacy is the “right to be let alone.”

The Bill of Rights guarantees the people’s right to privacy and protects them against the State’s abuse of power. In this regard, the State recognizes the right of the people to be secure in their houses. No one, not even the State, except “in case of overriding social need and then only under the stringent procedural safeguards,” can disturb them in the privacy of their homes.”

(2) The phrase “prying into the privacy of another’s residence” covers places, locations, or even situations which an individual considers as private. The application of Article 26 (1) of the Civil Code is not limited only to residence. A business office is entitled to the same privacy when the public is excluded therefrom and only such individuals as are allowed to enter may come in.

In ascertaining whether there is a violation of the right to privacy, courts use the “reasonable expectation of privacy test”. This test determines whether a person has reasonable expectation of privacy and whether the expectation has been violated. The installation of video surveillance should not cover places where there is reasonable expectation of privacy, unless consent of the individual, whose right to privacy would be affected, was obtained. Nor should these cameras be used to pry into the privacy of another’s residence or business office as it would be no different from eavesdropping, which is a crime under RA 4200 of the Anti Wiretapping Law.(Hing v. Choachuy Sr, GR No. 179736, June 26, 2013; 669 SCRA 667)

OSN Expectation of Privacy

38. AAA and BBB, students of a high school in Cebu City, and about to go into a beach party, took

digital pictures of themselves from waist up and in brassieres drinking hard liquor, smoking cigarettes, along with several others. These pictures were then uploaded by CCC on her Facebook profile. The uploaded picture were shown to Mylene, a computer teacher at the school who reported the matter to, and showed the pictures through the Facebook profile of one of the students to Rose, the school’s Discipline-In-Charge. After investigation, the school was able to identify the students who violated the school’s Student Handbook. The erring students were subsequently barred from joining the commencement exercises. The parents of the students then filed a Petition for Issuance of Writ of Habeas Data for the following reasons: the photos of the children were merely taken for posterity; the privacy settings of their children’s Facebook accounts was set at “Friends Only”, thus they have a reasonable expectation of privacy; respondents being school officials ought to know that the girls whose privacy were violated were the victims in this case; the photos belong to the girls thus cannot be reproduced without their consent. Mylene violated that right by saving digital copies of the pictures and subsequently showing it to the school officials; the violation happened at the school premises; and the data were boldly shown and attached by the respondents in their memorandum in the civil case. Was there a violation of the students’ right to privacy by the school officials? Reasons.

ANSWER: NONE. Before one can have an expectation of privacy in his or her Online Social Network (OSN) activity it is first necessary that said user, manifest the intention to keep certain post private, through the employment of measures to prevent access thereto or to limit is visibility. And this intention can materialize in cyberspace through the utilization of the OSN’s privacy tools. In other words, utilization of this privacy tools is the manifestation, in cyber world, of the user’s invocation of his or her right to informational privacy. Also, respondents were mere recipients of what were posted. They did not resort to any unlawful means of gathering the information as it was voluntarily given to them by persons who had legitimate access to the said posts. Clearly, the fault, if any, lies with the friends of the mines. (Vivares v. St. Theresa’s College, GR No. 202666, September 29, 2014)

Privacy of Communication

39. ANDREA and MONICA had confrontation in the latter’s office. ANDREA secretly taped the

conversation. The conversation between them bordered on humiliating and vexing the personality and dignity of MONICA for which she filed a civil case for damages. During the hearing ANDREA produced

the recorded tape t o prove that MONICA indeed insulted her.

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MONICA, in a countersuit filed a criminal case against ANDREA for violation of RA 4200 which prohibits and penalizes wire tapping and other violations of private communications. ANDREA moved to dismiss the criminal case on the ground that the allegations do not constitute an offense and that the taping of conversation between the parties is not covered by RA 4200. The trial court granted said motion which decision was reversed by the Court of Appeals. ANDREA elevated the case to the Supreme Court on certiorari. Is ANDREA liable for violation of RA 4200? Decide. ANSWER: YES. Section 1 of RA 4200 clearly and unequivocably prohibits any person, not authorized by all the parties to any private conversation, to secretly tape record any communication by means of a tape recorder. Congressional records support the view that the intention of the lawmakers in enacting RA 4200 is to make illegal any unauthorized tape recording of private conversation or communication taken by either of the parties themselves or third persons. Absent a clear showing that both parties to the telephone conversations allowed the recording of the same, the inadmissibility of the subject tapes is mandatory under RA 4200. (Ramirez vs. CA, 248 SCRA 590 and Salcedo-Ortanez vs. CA, 235 SCRA 111) In Mamba vs. Judge Garcia, A.M. No. MTJ-96-1110, June 25, 2001, the Supreme Court likewise ruled that the investigating judge’s reliance on the tape-recorded conversation is erroneous. The recording of private conversation, without the consent of the parties, contravenes the provisions of RA 4200, otherwise known as the Anti-Wire Tapping Law, and renders the same inadmissible in evidence in any proceeding. The law covers even those recorded by persons privy to the conversation, as in this case.

40. Can a detention prisoner validly invoke his right to privacy of communication guaranteed under

Section 3 of the Bill of Rights? ANSWER: I qualify. While letters containing confidential communication between detainees and their lawyers enjoy a limited protection in that prison officials can open and inspect the mail for contraband but could not read the contents thereof without violating the inmates’ right to correspondence, letters folded but not in a sealed envelope and are not confidential communication between the detainees and their lawyers, the officials of the ISAFP Detention Center could read the letters. If the letters are marked confidential communication between detainees and their lawyers, the detention officials should not read the letters but only open the envelopes for inspection in the presence of the detainees. (Alejano vs. Cabuay, 468 SCRA 188)

Right to Privacy and Right Against Self-incrimination

41. Does a Senate Committee inquiry violate Philcomsat Holding Corporation and Standard Charter

Bank’s right to privacy and right against self-incrimination? ANSWER: NO. Since the inquiry focused on the acts committed in the discharge of their duties as officers and directors of said corporations, they have no reasonable expectation of privacy on matters involving their offices in a corporation where the government has interest. Such matters are of public concern and over which the people have the right to information. This goes to show that the right to privacy is not absolute where there is an overriding compelling state interest.(Sabio vs. Gordon, 504 SCRA 704) Employing the rational basis relationship test, as laid down in Morfe vs. Mutuc, 22 SCRA 424, there is no infringement on the individual’s right to privacy as the requirement to disclose information is for valid purpose, in this case, to ensure that the government agencies involved in regulating banking transactions adequately protect the public who invest in foreign securities. Suffice it to say that this purpose constitutes a reason compelling enough to proceed with the assailed legislative investigation. (Standard Charter Bank vs. Senate Committee on Banks, GR 167173, December 27, 2007) The right against self-incrimination may be invoked by the said directors and officers of the corporations only when the incriminating question is being asked, since they have no way of knowing in advance the nature or effect of the questions to be asked of them. That this right may possibly violated or abused is no ground for denying the Senate Committees their power of inquiry. When this power is abused, it may be presented before the courts. What is important is that the Senate Committees have sufficient Rules to guide them when the right against self-incrimination is invoked. (Sabio vs. Gordon, supra.) An accused occupies a different tier of protection from an ordinary witness. Whereas an ordinary witness may be compelled to take the witness stand and claim the privilege as each question requiring an incriminating answer is shot at him, an accused may altogether refuse to take the witness stand and refuse to answer any questions. In this case, petitioners neither stand as accused in criminal case nor will they be subjected by the respondent to any penalty by reason of their testimonies. Hence, they cannot altogether decline appearing before respondent, although they may invoke the privilege when a question calling for an incriminating answer is propounded. (Standard Charter Bank vs. Senate Committee, supra)

Right to Privacy and the Human Security Act

42. May police authorities listen to, intercept and record any communication of as person without

violating the right to privacy? ANSWER: YES. Under RA 9372, a law enforcement official and the members of his team, may upon written order of the Court of Appeals, listen to, intercept and record, with the use of any mode, form or kind or type of electronic or other surveillance equipment, any communication, message, conversation between members of a

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judicially declared and outlawed organization or group of persons or of any person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism. The surveillance, interception and recording of communications, however, between lawyers and clients, doctors and patients, journalists and their sources and confidential business correspondence shall not be authorized.

Freedom of Expression

43. What is the scope of protected freedom of expression under the Constitution? What are the

forms of protected speech? ANSWERS: 1) Freedom of speech 2) Freedom of the press 3) Right to form associations not contrary to law 4) Right of assembly and to petition the government 5) Right to access to information on matters of public concern and 6) Freedom of religion Protected speech includes every form of expression, whether oral, written, tape or disc recorded. It includes motion pictures as well as what is known as symbolic speech such as wearing of armband as a symbol of protest. Peaceful picketing has also been included within the coverage of protected speech.

44. What are the four aspects of freedom of speech and press? What are the limitations on the

freedom of expression? ANSWERS: 1) Freedom from censorship or prior restraint 2) Freedom from subsequent punishment 3) Freedom of access to information 4) Freedom of circulation. Among the limitations in the exercise of freedom of expression are: 1) Laws against libel, slander and obscenity as they are contrary to public policy 2) Laws against sedition 3) acts violative of the right to privacy of an individual 4) Fraudulent matters 5) Legislative immunities 6) Advocacy of imminent lawless conduct and 7) Fighting words.

Freedom of expression must be exercised within the bounds of laws enacted for the promotion of social interests as well as the protection of other equally important individual rights. Freedom of expression implies only the right to reach a willing audience but not the right to compel others to listen, see or read.

45. Distinguish content-based restraint from content-neutral regulation.

ANSWER: Content-based restraints are given the strictest scrutiny because of their inherent and invasive impact. They bear a heavy presumption against its unconstitutionality and thus measured against the clear and present danger rule giving the government a heavy burden to show justification for the imposition of such restraint. Content-neutral regulations are not subject to the strictest form of judicial scrutiny but only an intermediate review. Substantial government interest is required for their validity.

46. What is the so-called Doctrine of Fair Comment?

ANSWER: The Doctrine of Fair Comment postulates that while as a general rule, every discreditable public imputation is false because every man is presumed innocent, thus every false imputation is deemed malicious. An exception, however, is when the discreditable imputation is directed against a public person in his public capacity, such is not necessarily actionable. For it to be actionable, it must be shown that there is a false allegation of facts or comment based on false supposition. However, if the comment is an expression of an opinion, based on established facts, it is immaterial whether the opinion happens to be mistaken, as long as it might reasonably be inferred from facts. (Borjal vs. CA, GR No. 126466, January 14, 1999)

47. The National Telecommunications Commission issued this press release: “NTC GIVES FAIR WARNING TO RADIO AND TELEVISION OWNERS TO OBSERVE ANTI-WIRETAPPING LAW AND PERTINENT CIRCULARS ON PROGRAM STANDARDS.” Petitioner Chavez filed a petition alleging that the acts of respondents are violation of the freedom on expression and of the press, and the right of the people on information on matters of public concern.

ANSWER: It is clear that the challenged acts in the case at bar need to be subjected to the clear and present danger rule, as they are content-based restrictions. The acts of the respondents focused solely on but one subject – a specific content- fixed as these were on the alleged tape conversation between the President and a COMELEC official. Undoubtedly, these did not merely provide regulations as to the time, place or manner of the dissemination of speech and expression. The records of the case at bar, however are confused and confusing, and respondent’s evidence fall short of satisfying the clear and present danger test. (Chavez vs. Gonzalez, GR No. 168338, February 15, 2008)

48. Is freedom of speech and expression affected by RA 9372?

ANSWER: YES. Section 26 of the Human Security Act provides that persons who have been charged with terrorism or conspiracy to commit terrorism – even if they have been granted bail because the evidence of guilt is not strong – can be prohibited from using any cellular phones, computers, or other means of communication with people outside their residence.

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49. What is heckler’s Veto?

ANSWER: It is an impermissible content-based restriction on speech where the speech is prohibited due to an anticipated disorderly or violent reaction of the audience.

50. A tarpaulin was posted by the Diocese of Bacolod within a private compound housing the San

Sebastian Cathedral of Bacolod containing the heading “Conscience Vote” and lists candidates as either “(Anti-RH) Team Buhay with a check mark, or “Pro-RH) Team Patay with an “X” mark. The tarpaulin was neither sponsored nor paid for by any candidate. The COMELEC Law Department issued a letter ordering the immediate removal of the tarpaulin as it will be constrained to file an election offense against the Diocese. Is the order of the COMELEC Law Department valid? ANSWER: NO. While respondent COMELEC cited the Constitution, laws and jurisprudence to support their position that they had the power to regulate the tarpaulin, however, all these provisions pertain to candidates and political parties. Petitioners are not candidates. Neither do they belong to any political party. COMELEC does not have the authority to regulate the enjoyment of the preferred right to freedom of expression exercised by a non-candidate in this case. Regulation of election paraphernalia will still be constitutionally valid if it reaches into speech of persons who are not candidates or who do not speak as members of a political party if they are not candidates, only if what is regulated is declarative speech that, taken as a whole, has for its principal object the endorsement of a candidate only. The regulation (a) should be provided by law, (b)reasonable, (c) narrowly tailored to meet the objective of enhancing the opportunity of all candidates to be heard and considering the primacy of the guarantee of free expression, and (d) demonstrably the least restrictive means to achieve that object. The regulation must only be with respect to the time, place and manner of the rendition of the message. In no situation may the speech be prohibited or censored on the basis of its content. For this purpose, it will not matter whether the speech is made with or on private property.

The present case also involves one’s right to property. Even though the tarpaulin is seen by the public, it remains the private property of petitioners. Freedom of expression can be intimately related with the right to property. There may be no expression when there is no place where expression may be made. COMELEC’s infringement upon petitioners’ property rights as in the present case also reaches out to infringement of their fundamental right to speech. (The Diocese of Bacolod vs. COMELEC, GR No. 205728, January 21, 2015)

Freedom of Religion

51. Explain briefly the two constitutional guarantees of religious freedom, i.e., Establishment

Clause and Free Exercise Clause, in relation to the RH Law. ANSWER: The Establishment Clause “principally prohibits the State from sponsoring any religion or favouring any religion as against other religions. It mandates a strict neutrality in the affairs of religious groups.” Essentially, it prohibits the establishment of a state religion and the use of public resources for the support or prohibition of a religion. The basis of the Free Exercise Clause is the respect for the inviolability of the human conscience. Under this part of religious freedom guarantee, the State is prohibited from unduly interfering with the outside manifestation of one’s belief and faith. Moreover, the guarantee of religious freedom is necessarily intertwined with the right of free speech, it being an externalization of one’s thought and conscience. This in turn includes the right to be silent. With the constitutional guarantee of religious freedom follows the protection that should be afforded to individuals in communicating their beliefs to others as well as the protection for being simply silent. The Bill of Rights guarantees the liberty of the individual to utter what is in his mind and the liberty not to utter what is not in his mind. While the RH Law seeks to provide freedom of choice through informed consent, freedom of choice guarantees the liberty of the religious conscience and prohibits any degree of compulsion or burden, whether direct or indirect, in the practice of one’s religion. (Imbong v. Ochoa, GR No.204819, April 8, 2014)

52. Are the following provisions of the Reproductive Health Law constitutional? Cite a principle of law to support your answers.

(1)

A requirement for would-be spouses to attend a seminar on parenthood and family planning as a condition for the issuance of a marriage license. (4 pts.)

(2)

Before undergoing tubal ligation or vasectomy, a requirement of a spousal consent in case of married persons, provided that in case of disagreement the decision of the one undergoing the procedure shall prevail. (4 pts.)

(3) Imposing to health providers public or private, the duty to refer the patient seeking reproductive health services to another medical practitioner, if the same is in conflict with their religious beliefs and moral convictions. (4 pts.)

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ANSWERS: (1) CONSTITUTIONAL. The requirement is a reasonable exercise of police power by the government. A cursory reading of the assailed provision bares that religious freedom of the petitioners are not at all violated. All the law requires is for would-be spouses to attend a seminar on parenthood, family planning, breastfeeding and infant nutrition. It does not even mandate the type of family planning methods to be included in the seminar, whether they be natural or artificial. As correctly noted by the OSG, those who received any information during their attendance in the required seminars are not compelled to accept the information given to them, are completely free to reject the information given to them, are completely free to reject the information they find unacceptable, and retain the freedom to decide on matters of family life without the intervention of the State. (Imbong v. Ochoa, GR No.204819, April 8, 2014)

(2) UNCONSTITUTIONAL. By their very nature they should require mutual consent and decision between the husband and the wife as they affect issues intimately related to the founding of a family. The Constitution spouses the State shall defend the “right of the spouses to found a family” One person cannot found a family. The right, therefore , is shared by both spouses. The RH Law cannot be allowed to infringe upon this mutual decision-making. By giving absolute authority to the spouse who undergo a procedure, and barring the other spouse from participating in the decision would drive a wedge between the husband and wife, possibly resulting in bitter animosity, and endanger the marriage and the family, all for the sake of reducing the population. This would be a marked departure from the policy of the State to protect marriage as an inviolable institution. Decision-making involving a reproductive health procedure is a private matter which belongs to the couple, not just one of them. Any decision they would reach would affect their future as a family because the size of the family or the number of their children significantly matters. The decision whether or not to undergo the procedure belongs exclusively to, and shared by, both spouses as a cohesive unit as they chart their own destiny. It is a constitutionally guaranteed right. Unless it prejudices the State, which has not shown any compelling interest, the State should see to it that they chart their destiny together as one family. (Imbong v. Ochoa, GR No.204819, April 8, 2014)

(3) UNCONSTITUTIONAL. In case of conflict between the religious beliefs and moral convictions of individuals, on one hand, and the interest of the State, on the other, to provide access information on reproductive health products, services, procedures and methods to enable the people to determine the timing, number and spacing of the birth of their children, the Court is of the strong view that religious freedom of health providers, whether public or private, should be accorded primacy. Accordingly, a conscientious objector, should be exempt from the compliance the mandates of the RH Law. If he would be compelled to act contrary to his religious belief and conviction, it would be violative of “the principle of non-coercion” enshrined in the constitutional right to free exercise of religion. VALID EXCEPTION: While generally healthcare service providers cannot be forced to render reproductive health care procedures if doing it would contravene their religious beliefs, an exception must be made in life-threatening cases that require the performance of emergency procedures. In this situations, the right of life of the mother should be given preference, considering that a referral by a medical practitioner would amount to a denial of service, resulting to unnecessarily placing the life of a mother in grave danger. (Imbong v. Ochoa, GR No.204819, April 8, 2014)

Separation of Church & State

53. Can the courts, in the performance of their judicial functions, exercise control over church

authorities in the performance of their discretionary and official functions? ANSWER: NO. The expulsion/excommunication of members of a religious institution or organization is a matter best left to the discretion of the officials, and laws and canons, of said institution/organization. It is not for the courts to exercise control over church authorities in the performance of their discretionary and official

functions. In disputes involving religious institution or organization, there is one area which the Court should not touch: doctrinal and disciplinary matters. The amendments of the constitution, re-statement of articles of religion and abandonment of faith or abjuration alleged by the appellant, having to do with faith, practice, doctrine, form of worship, ecclesiastical law, custom and rule of a church and having reference to the power of excluding from the church those allegedly unworthy of membership, are unquestionably ecclesiastical matters which are outside the province of civil courts. (Taruc vs. Cruz, 453 SCRA 123)

54.

BENEVOLENT NEUTRALITY or

ACCOMMODATION? ANSWER: The doctrine believes that the wall of separation that divides the church and the state is meant to protect the church from the state. The principle recognizes that the state is not hostile to religion because it plays an important role in public life. It believes that the wall of separation does not require the state to be adversary, rather, the state must be neutral in its relations with groups or religious believers and non-believers. Under the doctrine, accommodation of religion may be allowed not to promote the government’s favored form of religion, but to allow individuals and groups to exercise their religion without hindrance. Thus, the Philippine Constitution provides for tax exemption of church properties, salary of religious officers in government institutions, and optional religious instructions in public schools. The adoption of the benevolent neutrality-accommodation approach does not mean that the Court ought to grant exemption every time a free exercise claim comes before it. (Estrada vs. Escritor, 492 SCRA 1)

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Liberty of Abode & Travel

55. What are the limitations on liberty of abode? What are the limitations on the right to travel?

ANSWER: The limitation on the liberty of abode is upon lawful order of the court while on the right to travel is in

the interest of national security, public safety or public health, as may be provided by law. (Art. III, Sec. 6)

56. Is the right to travel affected by the Human Security Act?

ANSWER: YES. Section 26 of the law provides that persons who have been charged with terrorism or conspiracy to commit terrorism – even if they have been granted bail because the evidence of guilt is not strong – can be detained under house arrest; restricted from travelling; and/or upon application of the prosecutor, the suspects right to travel shall be limited to the municipality or city where he resides or the case is pending, in the interest of national security and public safety. These restrictions shall be terminated upon acquittal of the accused; or the dismissal of the case filed against him; or earlier upon the discretion of the court or upon motion of the prosecutor.

Right to Information

57. Does the COMELEC have the constitutional duty to disclose and release the names of

the nominees of the party-list groups. ANSWER: YES. The right to information is a public right where the real parties in interest are the public or the citizens. The right to information is limited to “matters of public concern” and is further subject to such limitations as may be provided by law. Also, the policy of public disclosure on Art. II Sec. 28, is confined to transactions involving “public interest and is subject to reasonable conditions prescribed by law. However, no national security is involved in the disclosure of the names of the nominees of the party-list groups in question. (Bantay RA 7941 vs. COMELEC, GR No. 177271, May 4, 2007)

58. Are the offers made by the Philippine and Japanese governments during the negotiations of the Japan-Philippines Economic Partnership Agreement (JPEPA) covered by the executive privilege on diplomatic communications?

ANSWER: YES. In Akbayan Citizens Action Party vs. Aquino, GR No. 170516,July 16, 2008, it was held that the Japanese representatives submitted their offers with the understanding that ‘historic confidentiality’ would govern the same and that they continue to be privilege even after the agreement has been published. Disclosing these offers could impair the ability of the Philippines to deal not only with Japan but with other foreign governments in future negotiations. A ruling that Philippines offers in treaty negotiation should now be open to public scrutiny would discourage future Philippine representatives from frankly expressing their views during negotiations. The diplomatic negotiation privilege bears a close resemblance to the deliberative process and presidential communication privilege.

59. What are the limitations on the right to information? Some of the recognized limitations on the right to information as enumerated by jurisprudence are 1)

national security matters, including state secrets regarding military, diplomatic and other national security

concerns, and information on inter-government

agreements; 2) trade secrets and banking transactions, pursuant to the Intellectual Property Code and other related laws, and to the Secrecy of Bank Deposits Act; 3) criminal matters or classified law enforcement matters, “such as those relating to the apprehension, the prosecution and the detention of criminals, which courts may not inquire into prior to such arrests, detention, and prosecution; and 4)) other confidential matters, including diplomatic correspondence, closed-door cabinet meetings and executive sessions of Congress, and internal deliberations of the Supreme Court.

Right to Form Associations

60. Does the right the right to strike form a part of the freedom of expression?

ANSWER: NO. The claim that the right to strike is a part of the freedom of expression and the right to peacefully assemble and petition the government for redress of grievances, and should thus, be recognized even in the case of government employees, was rejected by the Supreme Court in (GSIS vs. Kapisanan ng Mga Manggagawa sa GSIS, GR No. 170132, December 6, 2006)

Non-impairment Clause

61. What is the non-impairment clause?

ANSWER: The non-impairment clause is a constitutional prohibition for Congress and Sanggunians to enact a law or ordinance which changes the terms of a legal contract between parties, either in the time or mode of performance, or imposes new conditions, or dispenses with those expressed or authorizes for its satisfaction something different from that provided in its term. It impairs the obligation of a contract and is therefore null and void. To constitute impairment, the law must affect a change in the rights of the parties with reference to its other and not with respect to non-parties. (PHILRECA v. The Secretary, DILG, GR No. 143076, June 10, 2003)

exchanges prior to the conclusion of treaties and executive

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62. United BF Homeowners Associations, Inc., questions the constitutionality of a zoning ordinance reclassifying certain portions of BF Homes Paranaque from residential to commercial zone because it impairs the contracts between the developer and the lot buyers. One of the promises of the developer is that the property shall be used for residential purposes only. Is the ordinance violative of the non-impairment clause in the Bill of Rights?

ANSWER: NO. The Court has upheld in several cases the superiority of police power over the non-impairment clause. The constitutional guarantee of non-impairment of contracts is limited by the exercise of police power of the State, in the interest of public health, safety, morals and general welfare. (United BF Homeowners’ Associations, Inc. vs. The City Mayor, Paranaque City) In Ortigas & Co. vs. Feati Bank and Trust Co., 94 SCRA 533, The Court held that contractual restrictions on the use of property could not prevail over the reasonable exercise of police power through zoning regulations.

Right to Remain Silent and to Counsel

63. What is custodial investigation? What are the rights of a person under custodial investigation?

ANSWER: Custodial investigation is the stage of police investigation 1) when a person is taken into custody and 2) is singled out as a suspect in the commission of the crime under investigation and 3) the police officers begin to ask questions on a) the suspect’s participation therein and b) which tend to elicit an admission. (People vs. Pavillare, GR No. 129970, April 5, 2000)

The “Miranda” rights of a person under custodial investigation are the right 1) to be informed of his right to remain silent, 2) to have competent and independent counsel preferably of his own choice and the right to be informed of such rights. If the person cannot afford the services of counsel, he must be provided with one. These rights, except the right to be informed of such rights, cannot be waived except in writing and in the presence of counsel. (People vs. Naag, GR No. 123860, January 20, 2000)

The person under custodial investigation must be informed in a language known to and understood by him of the reason for the arrest and he must be shown the warrant of arrest, if any. (People vs. Mahinay, GR No. 122485, February 1, 1999)

Exclusionary Rule

64. Does the exclusionary rule under paragraph 2, Section 12 of the Bill of Right apply to

admissions made in an administrative investigation? What about extrajudicial statements made before an employer? ANSWER: NO. The exclusionary rule under paragraph (2), Section 12 of the Bill of Rights applies only to admissions made in a criminal investigation but not to those made in an administrative investigation. Admissions made by a respondent during an administrative investigation may be used as evidence to justify his dismissal. As such, the hearing conducted by the investigating authority is not part of criminal prosecution. The right to counsel attaches only upon the start of a custodial investigation. The right to counsel under Section 12 of the Bill of Rights is meant to protect a suspect in a criminal case under custodial investigation. (Remolana vs. CSC, 362 SCRA 304) NO. Admissions made during the course of administrative investigation by an employer (Philippine Airlines) do not come within the purview of Section 12. The protective mantle of the constitutional provision also does not extend to admissions or confessions made to a radio announcer who was not part of the investigation, or even to a mayor approached as a personal confidante and not in his official capacity. The right exist only in “custodial investigations,” or “in-custody custody interrogation of accused persons.” And, by custodial interrogation is meant “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” (People vs. Ayson, 175 SCRA 216; People vs. Tin Lan Uy, 475 SCRA 248: Astudillo vs. People, GR No. 159734, Nov. 30, 2006)

Right to Bail

65. What is bail? What are the forms of bail?

ANSWER: Bail is a security given for the release of a person in custody of the law, furnished by him or a

bondsman, to guarantee his appearance before any court as required under the conditions hereinafter specified. (Sec. 1, Rule 114, ROC) Bail may be in the form of corporate surety, property bond, cash deposit or recognizance.

66. When is bail a matter of right?

ANSWER: All persons in custody shall be admitted to bail as a matter of right, with sufficient sureties, or be released on recognizance as prescribed by law of the Rules of Court 1) before conviction by the Metropolitan Trial Court, Municipal Trial Court, Municipal Trial Court in Cities, or Municipal Circuit Trial Court, and 2) before

conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment. (Sec. 4, Rule 114, ROC)

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67. When is bail matter of discretion? In what court can the application for bail be filed?

ANSWER: Upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment, the court, on application, admission to bail is discretionary. xxx Should the court

grant the application, the accused may be allowed provisional liberty during the pendency of the appeal under the same bail subject to the consent of the bondsman. (Sec. 5, Rule 114) Whenever the grant of bail is a matter of discretion, or the accused seeks to be released on recognizance, the application can only be filed in the court where the case is pending, whether on preliminary investigation, trial, or appeal. (Sec. 17, Rule 114)

68. Explain the concept of discretionary bail pending appeal after conviction for non-capital

offense. ANSWER: The discretion to extend bail during the course of the appeal should be exercised with grave caution and for strong reasons, considering that the accused has been in fact convicted by the trial court. Reason: Bail should be granted only when it is uncertain whether the accused is guilty or innocent, and therefore, where that uncertainty is removed by conviction it would, generally speaking be absurd to admit bail. From another point of view, it may be properly argued that the probability of ultimate punishment is so enhanced by the conviction that the accused is more likely to escape if liberated on bail than before conviction. (Yap, Jr. vs. CA, GR No.

141529)

69.

Is hearing mandatory when the accused is charged with an offense punishable by reclusion

perpetua, or life imprisonment? ANSWER: YES. The judge shall conduct a hearing whether summary or otherwise, not only to take into account the guidelines set forth under the Rules for the grant of bail, but primarily to determine the existence of strong evidence of guilt or lack of it, against the accused, only for purposes of the bail. If evidence of guilt is not strong, bail becomes a matter of right.

Presumption of Innocence

70. Are the signatures of the accused on the boxes and on the plastic bags tantamount to

uncounselled extrajudicial confessions and therefore inadmissible in evidence? ANSWER: YES. They are not sanctioned by the Bill of Rights and are therefore inadmissible as evidence. The fact that all of the accused are foreign nationals does not preclude application of the “Exclusionary rule” because the constitutional guarantee embodied in the Bill of Rights are given and extends to all persons, both aliens and citizens. (People vs. Wong Chuen Ming, GR No. 112801-11, April 12, 1996) The accused have the constitutional presumption of innocence.

Right to Speedy Trial

71. When is the right to speedy trial deemed violated?

ANSWER: Mere mathematical reckoning of time involved is not sufficient in determining violation of right to speedy trial. It is violated only when the proceedings is attended by vexatious, capricious and oppressive delays

or when unjustified postponements of the trial are asked and secured, or when without cause or unjustifiable motive, along period of time is allowed to lapse without the party having his case tried. (Ty-Dazo vs. Sandiganbayan, GR No. 143885-86, January 21, 2002)

Suspension of the Writ of Habeas Corpus

72. What is writ of habeas corpus? When may the privilege of the writ of habeas corpus be suspended? To whom may the suspension be applied?

ANSWERS: The writ of habeas corpus is issued when one is either deprived of liberty or is wrongfully being prevented from exercising legal custody over another person.

In case of invasion or rebellion, when the public safety requires it, the President may suspend the privilege of the writ of habeas corpus. (Art. III, Sec. 15, PC) The suspension of the privilege of the writ of habeas corpus shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion. During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially released within three days, otherwise he shall be released. (Art. VII, Sec. 18, 5 th and 6 th pars. PC)

73. What is the Writ of Amparo? Writ of Habeas Data?

ANSWERS: The Writ of Amparo is a special constitutional writ or order issued by a court to protect or enforce a constitutional right (other than physical liberty which is already covered by the writ of habeas corpus) in consonance with the power of the Supreme Court to adopt rules to protect or enforce constitutional rights, including life, liberty and security. The writ is confined only to cases of extrajudicial killings and enforced disappearances and it must be shown and proved by substantial evidence that the disappearance was carried out by, or with authorization, support or acquiescence by the State. In the Philippines, the remedy resorted to by relatives of missing persons is the petition for the writ of habeas corpus. While petitions for habeas corpus just ended up with state agents saying the missing person was not in their custody, under the writ of Amparo, it

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is not enough for officials to say that. The writ compels state agents to look for the missing person. And if the court finds that the officials did not exert enough effort in finding the person, it can hold them liable. The Writ of Habeas Data is an independent and summary remedy designed to protect the image, privacy, honor, information and freedom of information of an individual, and to provide a forum to enforce one’s right to the truth and to informational privacy. It includes the right of a person (1) to access registries (data bank); (2) right to complement information contained in the registries and (3) the right to rectification of said registries. It is a legal process by which an individual may petition, through courts, that government present to the petitioner all information gathered by government on his person, and demand that said data be corrected if erroneous, or totally destroyed if ridiculous.

Right Against Self-Incrimination

74. What is the scope of the right against self-incrimination? What are the mechanical acts that,

without the use of intelligence, do not fall within the scope of the protection? ANSWER: The scope of the right includes 1) prohibition against testimonial evidence and 2) prohibition against act that require use of intelligence, such as providing handwriting for comparison. Some acts which are not covered by the right against self-incrimination are: 1) Fingerprinting, photographing and paraffin testing, physical examination; 2) Physical examination of a woman accused of adultery to determine if she is pregnant; 3) Undergoing ultra-violet rays examination to determine presence of fluorescent powder on the hands; 4) Subpoena directing government officials top produce official documents or public records in their custody; and 5) Fitting the accused foot over a foot print, putting on a pair of trousers, shoes, etc.

75. Can an accused invoke the right against self-incrimination? What about ordinary witnesses?

ANSWER: An accused is exempt from being compelled to be a witness against himself [Sec 1 (e), Rule 115, ROC], so he could validly refuse to take the witness stand. An ordinary witness who is not the accused may be compelled to testify. However, he could claim the privilege against self-incrimination and refuse to answer only as each question requiring an incriminatory answer is propounded to him. (Badiong vs. Gonzales, 94 SCRA 906)

Double Jeopardy

76. What is the concept of double jeopardy?

ANSWER: When an accused 1) has been convicted or acquitted, or 2) the case against him dismissed or otherwise terminated a)without his consent b) by a court of competent jurisdiction, c) upon a valid complaint or other formal charge sufficient in form and substance to sustain a conviction and 3)after the accused had pleaded guilty to the charge, 4) the conviction or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution a) for the offense charged, or b) for any attempt to commit the same or frustration thereof, or c) for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information. 1 st par. Sec. 7, Rule 117 ROC)

77. What are the protection afforded by the right against double jeopardy?

ANSWER: 1) Against a second prosecution for the same offense after acquittal 2) Against a second prosecution for the same offense after conviction 3) Against multiple punishments for the same offense

78. What are the requisites for double jeopardy? What are the proofs that the first jeopardy had

attached? ANSWER: Requisites:1) the first jeopardy must have attached prior to the second; 2) the first jeopardy must have been validly terminated; 3) the second jeopardy must be a) for the same offense; b) the second offense includes or is necessarily included in the offense charged in the first information, or is 3) an attempt to commit the same or is a frustration thereof. (Cudia vs. CA, GR No. 110315, January 16, 1998)

4) valid

plea; and 5) the defendant was acquitted or convicted or the case was dismissed or otherwise terminated without the express consent of the accused. (Cudia vs. CA, supra.)

79. Is there double jeopardy if acquittal violates due process?

ANSWER: NONE. The only instance when double jeopardy will not attach is when the trial court acted with grave abuse of discretion amounting to lack or excess of jurisdiction due to a violation of due process, ie, that the prosecution was denied the opportunity to present its case, in which case certiorari may be resorted to cure an abusive denial. In that extraordinary proceeding it must be clearly demonstrated that the trial court blatantly abused its authority to a point so grave as to deprive it of its very power to dispense justice. (People vs. Sandiganbayan, GR No. 140633, February, 2002)

Proofs: 1) court of competent jurisdiction;

2) valid complaint or information

3) arraignment;

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80. Is there double jeopardy upon a conviction for violation of Anti-Graft Law and a subsequent

charge for falsification of public documents? ANSWER: NONE. One of the elements of double jeopardy that is missing is that the second jeopardy (falsification of public documents) must be for the same offense as that in the first (Anti-Graft and Corrupt Practices). The crime of falsification of public documents is not necessarily included in Anti-Graft and Corrupt Practices. They have different elements. The guilt or innocence of the accused in the anti-graft case does not hinge on the validity or falsity of the documents which is the subject of the falsification. Furthermore, it is clear that the Sandiganbayan did not rule on the validity or falsity of the public documents. (Suero vs. People, GR No. 156408, January 31, 2005)

81. When it became manifest before the judgment that a mistake has been made in charging the

proper offense against A, the first charge was dismissed to pave the way for the filing of the proper offense. Does the filing of the proper offense constitute double jeopardy? ANSWER: No. The dismissal of the first case will not give rise to double jeopardy inasmuch as the proper offense was not the one charged against A in such case. The filing of the proper offense, therefore, does not constitute double jeopardy. (Gonzales vs. Court of Appeals, 232 SCRA 667)

82. What is the so-called Finality-of-Acquittal Doctrine?

ANSWER: The doctrine is a safeguard against double jeopardy where verdicts of acquittal are to be regarded as absolutely final and irreviewable. In the absence of a finding of mistrial, i.e., the criminal trial was a sham, a judgment of acquittal is final and unappealable on the ground of double jeopardy whether it happens at the trial court level or at the Court of Appeals. In People vs. CA, GR No. 142051, February 24, 2004, the special civil action of certiorari seeking a review and reversal of decision acquitting an accused on ground of grave abuse of discretion is not proper. If the petition, regardless of its nomenclature, merely calls for an ordinary review of the findings of the court a quo, without demonstrating that the lower court blatantly abused its authority to a point so grave as to deprive it of its very power to dispense justice, the constitutional right against double jeopardy would be violated. Such recourse is tantamount to converting the petition for certiorari into an appeal, contrary to the express injunction of the Constitution, the R of Court and prevailing jurisprudence on double jeopardy. (Ibid.)

83. What is the effect when an accused appeals from the sentence of the trial court?

ANSWER: An appeal in a criminal case opens the entire case for review on any question including one not raised by the parties. When an accuse appeals from the sentence of the trial court, he or she waives the constitutional safeguard against double jeopardy and throws the whole case open to the review of the appellate court, which is then called upon to render judgment as law and justice dictates. An appeal confers upon the appellate court jurisdiction to examine the records, revise the judgment appealed from, increase (or reduce) the penalty, and cite the proper provision of the penal law. The appellate court may, and generally does, look into the entire records to ensure that no fact of weight or substance has been overlooked, misapprehended, or misapplied by the trial court. (Geroche v. People, GR No. 179080, November 26, 2014)

No ExPost Facto Law

84. What is ex post facto law? What are the characteristics of ex-post facto law?

ANSWER: Ex post facto law which penalizes a person for having committed an act which was not punishable at the time of its commission. Such retroactive application violates a person’s right to due process. An ex post facto law is one that 1) Makes an act done before the passage of the law and which was innocent when done, and punishes such an act; 2) Aggravates a crime, or makes it greater that it was, when committed; 3) Changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed; 4) Alters the legal rules of evidence, authorizes conviction upon less or different testimony than the law required at the time of the commission of the offense; 5) Assuming to regulate civil rights and remedies only, in effect imposes penalty or deprivation of a right for something which when done was lawful; and 6) Deprives a person accused of a crime of some lawful protection to which he has become entitled, such as the protection of a former conviction or acquittal, or a proclamation of amnesty. The prohibition against ex post facto law applies only to penal laws which are given retroactive effect. Penal law is one that prescribes a criminal penalty imposable in a criminal trial. A law is also penal if it prescribes a burden equivalent to a criminal penalty (eg. disqualification from the practice of a profession) even if such burden is imposed in an administrative proceeding (Pascual vs. Board of Medical Examiners, 28 SCRA

344)

85.

Australia and the Philippines entered into an extradition treaty. The treaty provided that

extradition may be granted irrespective of the date when the offense was committed. Australia asked that WRIGHT be extradited for swindling and perjury committed before the treaty took effect. WRIGHT argued that his extradition for offenses committed before the effectivity of the extradition treaty violates the prohibition against ex post facto laws. Decide. ANSWER: The prohibition against ex post facto laws applies to penal laws only. The extradition treaty is not a criminal statute. (Wright vs. Court of Appeals, 235 SCRA 341)

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Academic Freedom

86. Does the Civil Service Commission have the power to terminate employment of a UP professor

or other academic personnel? ANSWER: NO. The Civil Service Commission has no authority to dictate to UP the outright dismissal of its personnel. On its own, the CSC does not have the power to terminate employment or to drop workers from the rolls. Academic freedom encompasses the autonomy to choose who should teach and, concomitant therewith, who should be retained in its rolls of professors and other academic personnel. The UP by opting to retain a professor and even promoting him despite his absence without leave, exercised its freedom to choose who may teach or, more precisely, who may continue to teach within its faculty. (UP vs. CSC, 356 SCRA 57)

87. Does academic freedom encompass a university’s discretion to determine who shall be

conferred academic honors? ANSWER: YES. Academic freedom accords an institution of higher learning the right to decide for itself its aims and objectives and how best to attain them. Academic freedom extends to the right to confer academic honors. Thus, the exercise of academic freedom grants the University the exclusive discretion to determine to whom among its graduates it shall confer academic recognition based on its established standards. And the courts may not interfere unless there is a clear showing that the University has arbitrarily and capriciously exercised its judgments. (Morales vs. UP Board of Regents, 446 SCRA 227)

88. May a university validly revoke a degree or honor it has conferred to a student after the graduation of the latter after finding that such degree or honor was obtained through fraud?

ANSWER: YES. Academic freedom of institution of higher learning is a freedom granted to “institutions of higher learning” which is thus given a “wide sphere of authority certainly extending to the choice of students.” If such institution of higher learning can decide who can and who cannot study in it, it certainly can also determine on whom it can confer the honor and distinction of being its graduates. Where it is shown that the conferment of an honor or distinction was obtained through fraud, a university has the right to revoke or withdraw the honor or distinction it has thus conferred. This freedom of a university does not terminate upon the “graduation” of a student, for it is precisely the “graduation” of such a student that it is in question. (UP Board of Regents vs. CA and Celine, GR No. 134625, August 31, 1999)

89. The Board of Regents of the Benguet State University approved a resolution granting rice

subsidy and health care allowance to BSU’s employees. The grant of this rice subsidy and health care allowance in the amount of P4.35M was disallowed in audit by the Commission on Audit stating that RA 9282, the Higher Education Modernization Act of 1997, does not provide for the grant of said allowance to employees and officials to the university. BSU argued that the authority given to the Governing Board is plenary and absolute invoking the academic freedom clause of the Constitution. Is the contention of BSU legally tenable? ANSWER: NO. BSU cannot find solace in the academic freedom clause of the Constitution. Academic freedom as adverted to in the Constitution and in RA 9282 only encompasses the freedom of the institution of higher learning to determine for itself, on academic grounds, who may teach, what may be taught, how it shall be taught and who may be admitted to study. The guaranteed academic freedom does not grant the institution of higher learning unbridled authority to disburse its funds and grant additional benefits sans statutory basis that would justify the grant of these additional benefits to its employees. (BSU vs. COA, 524 SCRA 437)

90. Does the assumption by the Civil Service Commission of jurisdiction over a president of a state

university violate academic freedom? ANSWER: NO. A complaint against a state university official may be filed either with the university’s Board of Regents or directly with the Civil Service Commission which has concurrent jurisdiction. Contrary to the matters traditionally held to be justified to be within the bounds of academic freedom, the administrative complaints filed against a state university president involves violations of the civil service rules. The guaranteed academic freedom does not give an institution the unbridled authority to perform acts without any statutory basis. For that reason, a school official, who is a member of the civil service, may not be permitted to commit violations of civil service rules under the justification that he was free to do so under the principle of academic freedom. (Civil Service Commission vs. Sojor, GR 168766, May 22, 2008)

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