Political Law Essay

Custom Student Mr. Teacher ENG 1001-04 23 March 2016

Political Law

1. Define Political Law It is that branch of public law which deals with the organization and operations of the governmental organs of the State and defines the relations of the State with the inhabitants of its territory. (PEOPLE VS. PERFECTO, 43 Phil. 887) 2. What are included in Political Law? Constitutional Law; Administrative Law Law of Public Officers Law on Public Corporation Election Law 3. What is the doctrine of constitutional supremacy? Under the doctrine of constitutional supremacy, if a law or contract violates any norm of the constitution that law or contract whether promulgated by the legislative or by the executive branch or entered into by private persons for private purposes is null and void and without any force and effect. Thus, since the Constitution is the fundamental, paramount and supreme law of the nation, it is deemed written in every statute and contract.

4. What are the requisites for the exercise of “people’s initiative” to amend the Constitution? It is provided under Section 2, Art. XVII of the Constitution which provides that ―Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least 12% of the total number of registered voters, of which every legislative district must be represented by at least 3% of the registered voter therein.‖ The Congress shall provide for the implementation of the exercise of this right. 5. Is there a law which would provide for the mechanism for the people to propose amendments to the Constitution by people’s initiative?

While Congress had enacted RA 6735 purportedly to provide the mechanisms for the people‘s exercise the power to amend the Constitution by people‘s initiative, the Supreme Court in MIRIAM DEFENSOR-SANTIAGO, et al. Vs. COMELEC, G.R. No. 127325, March 19, 1997 & June 10, 1997, the Supreme Court held that RA 6735 is incomplete, inadequate or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is concerned. Its lacunae on this substantive matter are fatal and cannot be cured by “empowering” the COMELEC to promulgate such rules and regulations as may be necessary to carry the purposes of this act. In LAMBINO VS. COMELEC, however, the Supreme Court on November 21, 2006, in the Minute Resolution of the petitioner‟s Motion for Reconsideration held that RA No. 6735 is adequate and complete for the purpose of proposing amendments to the Constitution through people‟s initiative by a vote of 10 members as per Certification of the En Banc‟s Clerk of Court.

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5-a. May the question “Do you approve the amendment of Articles VI and VII of the 1987 Philippine Constitution changing the form of government from Presidential-Bicameral to Parliamentary-Unicameral” be allowed to be submitted to the people for their ratification or rejection as a means of amending the Constitution by people’s initiative if the requisite number of signatories (12% nationwide and at least 3% for every legislative district) are met? No for two (2) reasons. 1. The said ―proposal‖ did not indicate which provisions of Articles VI and VII are actually being amended which is a must under Section 2, Art. XVII. Otherwise, who shall make the amendments if the people in a plebiscite approve the same; 2. Changing the form of government from presidential to parliamentary is an act of REVISING the Constitution which is not allowed under Art. XVII, Section 2. People‘s initiative may only be allowed to propose amendments to the Constitution, not revision. 6. What are the requisites before an amendment to the Constitution by “people’s initiative” is sufficient in form and in substance? In the case of RAUL L. LAMBINO and ERICO B. AUMENTADO , together with 6,327,952 registered voters vs. THE COMMISSION ON ELECTIONS, G.R. No. 174153, October 25, 2006, 505 SCRA 160, the following requisites must be present: 1. The people must author and must sign the entire proposal. No agent or representative can sign for and on their behalf;

2. As an initiative upon a petition, THE PROPOSAL MUST BE EMBODIED IN A PETITION. These essential elements are present only if the full text of the proposed amendments is first shown to the people who will express their assent by signing such complete proposal in a petition. Thus, an amendment is ―DIRECTLY PROPOSED BY THE PEOPLE THROUGH INITIATIVE UPON A PETIITON ― ONLY IF THE PEOPLE SIGN ON A PETITION THAT OCNTAINS THE FULL TEXT OF THE PROPOSED AMENDMENTS. 7. Distinguish “Revision” from “amendment” of the Constitution. “Revision” is the alterations of the different portions of the entire document [Constitution]. It may result in the rewriting whether the whole constitution, or the greater portion of it, or perhaps some of its important provisions. But whatever results the revision may produce, the factor that characterizes it as an act of revision is the original intention and plan authorized to be carried out.

That intention and plan must contemplate a consideration of all the provisions of the Constitution to determine which one should be altered or suppressed or whether the whole document should be replaced with an entirely new one. “Amendment” of the Constitution, on the other hand, envisages a change or only a few specific provisions. The intention of an act to amend is not to consider the advisability of changing the entire constitution or of considering that possibility. The intention rather is to improve specific parts of the existing constitution or to add to it provisions deemed essential on account of changed conditions or to suppress portions of it that seem obsolete, or dangerous, or misleading in their effect. (SINCO, Vicente, PHILIPPINE POLITICAL LAW) 8. May Congress propose amendments to the Constitution while at the same time calling for a Constitutional Convention to amend the Constitution?

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Yes, there is no prohibition for Congress to propose amendments to the Constitution and at the same time call for the convening of a Constitutional
Convention to amend the Constitution. The word “or” in the provision “…Congress, upon a vote of ¾ of all its members; OR [2] A constitutional Convention” under Section 1, Art. XVII also means “AND”. (GONZALES VS. COMELEC, 21 SCRA 774) 9. What is the “Doctrine of Proper Submission” in connection with proposed amendments to the Constitution? “Doctrine of Proper Submission” means all the proposed amendments to the Constitution shall be presented to the people for the ratification or rejection at the same time, not piecemeal. (TOLENTINO VS. COMELEC, 41 SCRA 702) 10. What is the archipelagic doctrine or archipelago theory? It is the 2nd sentence of Section 1, Art. I of the Constitution which states that ―the waters around, between and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines.‖ 11. What are the elements of a “state”? As held in COLLECTOR VS. CAMPOS RUEDA, 42 SCRA 23, the elements of a state are. 1. people 2. territory 3. sovereignty 4. government 12. Are the two-fold function of government as enumerated by the Supreme Court in BACANI VS. NACOCO, 100 Phil. 468 (Ministrant [merely directory] and Constituent [Mandatory] Functions) still applicable today?

No more as held in ACCFA VS. CUGCO, 30 SCRA 649. This is due to complexities of the changing society, the two-fold function of the government as classified by President Wilson is no longer relevant as a result of the changing society wherein what are considered merely ministrant functions of the State before are now considered constituent , or vice versa. 13. What kind of government was the “Aquino Government” after former President Marcos left Malacanang for Hawaii due to the EDSA Revolution in February 1986. As held in In Re: SATURNINO BERMUDEZ, 145 SCRA 160, the same is de jure. A government formed as a result of a people‘s revolution, is considered de jure if it is already accepted by the family of nations or other countries like the United States, Great Britain, Germany, Japan, and others. 14. What are the three (3) kinds of de facto government?

As held in CO KIM CHAM VS. VALDEZ TAN KEH, 75 Phil. 113, the three (3) kinds of de facto governments are: a. The first, or government de facto in a proper legal sense, is that government that gets possession and control of, or usurps, by force or by the voice of the majority, the rightful legal governments and maintains itself against the will of the latter, such as the government of England under the Commonwealth, first by Parliament and later by Cromwell as Protector. b. The second is that which is established and maintained by military forces who invade and occupy a territory of the enemy in the course of war, and BAR OPERATIONS 2011 Page 3

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which is denominated a government of paramount force, as the cases of Castine, in Maine, which was reduced to British possession in the war of 1812, and Tampico, Mexico, occupied during the war with Mexico, by the troops of the United States. c. And the third is that established as an independent government by the inhabitants of a country who rise in insurrection against the parent state of such as the government of the Southern Confederacy in revolt not concerned in the present case with the first kind, but only with the second and third kinds of de facto governments. “But there is another description of government, called also by publicists a government de facto, but which might, perhaps, be more aptly denominated a government of paramount force. Its distinguishing characteristics are (1), that its existence is maintained by active military power with the territories, and against the rightful authority of an established and lawful government; and (2), that while it exists it necessarily be obeyed in civil matters by private citizens who, by acts of obedience rendered in submission to such force, do not become responsible, or wrongdoers, for those acts, though not warranted by the laws of the rightful government. 15. What is the postliminy theory or jus postliminium?

When a foreign power occupies a state and exercises the powers of government, the political laws of the said state are deemed automatically suspended but the former government automatically comes to life and will be in force and in effect again upon the re-establishment of the former government. (Taylor, International Law, p. 615.) 16. What is the doctrine of sovereignty as “auto limitation”? In the succinct language of Jellinek, it “is the property of a state-force due to which it has the exclusive capacity of legal self-determination and self-restriction.” A state then, if it chooses to, may refrain from the exercise of what otherwise is illimitable competence.”

The opinion was at pains to point out though that even then, there is at the most diminution of jurisdictional rights, not its disappearance. (Cited in Reagan vs. Commissioner, PEOPLE VS. GOZO, 53 SCRA 476 and COMMISSIONER VS. ROBERTSON, 143 SCRA 397) 17. What is the “incorporation theory” or the “Incorporation Clause” of the Constitution? It is the principle embodied in Section 2, Article II of the Constitution which states that ―The Philippines adopts the generally accepted principles of international law as part of the law of the land”. (MEJOFF VS. DIRECTOR OF PRISONS, 90 Phil. 70, KURODA VS. JALANDONI, 83 Phil 171, and AGUSTIN VS. EDU, 88 SCRA 195). 18. In case of conflict between a constitutional right of a citizen and a generally accepted principle of international law, which shall prevail? In the case of 4) AGUSTIN VS. EDU, 88 SCRA 195 REYES VS. BAGATSING,125 SCRA 553, the Supreme Court held that the constitutional right shall prevail. Though Article 22 of the Vienna Convention on Diplomatic Relations prohibits rallies within 500 feet of any foreign embassy, the same shall give way to the constitutional right of the citizens to ―peaceably assemble and to petition the government for redress of their grievances‖.

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19. May a citizen refuse to render personal military service/training because he does not have military inclination or he does not want to kill or be killed? No as held in PEOPLE VS. LAGMAN, 66 Phil. 13. “The appellant’s argument that he does not want to join the armed forces because “he does not want to kill or be killed” and that “he has no military inclination” is not acceptable because it is his obligation to join the armed forces in connection with the “defense of the State” provision of the Constitution. 20. Is the “separation of church and state” a myth or a reality? It is a reality as shown by the following provisions of the Constitution. 1. ART. III, Sec. 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. NO RELIGIOUS TEST SHALL BE REQUIRED FOR THE EXERCISE OF CIVIL OR POLITICAL RIGHTS. 2. ART. VI, Sec. 28 (3). Charitable institutions, churches, mosques, non-profit cemeteries…actually, directly and exclusively used for religious, charitable, or educational purposes shall be exempt from taxation. 3. ART. VI, Sec. 29 .(2). No public money or property shall be appropriated, applied, paid, for the benefit, directly or indirectly, for the use, benefit, or support of any sect, church, denomination or religion, except when such priest, minister.. is assigned to the armed forces, or to any penal institution, or government orphanage or leprosarium. 4. ART. IX, C, 2(5). Religious denominations and sects shall not be registered…as political parties. (NOTE: Religious organizations are also prohibited ion connection with sectoral representatives under Art. VI) 5. ART. XIV, Sec. 3(3).

At the option in writing by parents, religion shall be allowed to be taught to their children in elementary and high schools within the regular class hours by instructors designated or approved by religious authorities to which said children belong, without additional cost to the government. 21. What are the factors to be considered by the Philippines in dealing with other nations? As provided in Section 7 of Art. II, The Philippines shall pursue an independent foreign policy. In its relations with other states the paramount consideration shall be [1] national sovereignty, [2] territorial integrity, [3] national interest, and [4] the right to self-determination, 22. Is there absolute prohibition for the Philippines to be equipped with nuclear weapons? No, as stated in Section 8, Art. II, ―the Philippines, consistent with the national interest, adopts and pursues a policy of freedom from nuclear weapons in its territory.‖ As such, if it is consistent with national interest, the same is not prohibited. 23. Is “divorce” prohibited by the 1987 Philippine Constitution? : Father Bernas opines that the provision of the Constitution (Section 12, Art. III) which provides in part that the ―State shall strengthen the family‖ does not take a stand on divorce though it appears that a divorce law would ―break‖ the family instead of ―strengthening‖ it. As such, a Divorce Law to be passed by Congress may or may not be unconstitutional. 23. Is abortion allowed in the Philippines? BAR OPERATIONS 2011 Page 5

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Section 12, Art. II prohibits all forms of abortion except ―therapeutic abortion‖ or when the life of the mother is in danger. (Note: In the United States, abortion is allowed but only up to the 2 nd trimester of the pregnancy [ROE vs. WADE]) 24. Is a law prohibiting the sale of “girlie(bold) magazines” to minors violates the right of parents in rearing their children for civic efficiency? No, as held in the case of GINSBERG VS. NEW YORK, 390 US 629 (1969), a law prohibiting the sale of ―girlie magazines‖ [bold?) is constitutional and does not violate the above provision. This is so because parents could buy said magazines for their children if they believe the same is already suitable to the understanding of their child. This is in accordance with this provision which states that the parents have the ―natural and primary right in rearing their child for civic efficiency…‖ 25. May the State prohibit the teaching of a particular language in any school? No as held in MEYER VS. NEBRASKA, 260 US 260 (1922) because the child is not a mere creature of the State and the parents have the natural right and duty of rearing their children for civic efficiency. 26. May the State require parents to enroll their small children only to public schools valid? As held in PIERCE VS. SOCIETY OF SISTERS, 268 US 510 (1925), a law requiring small kids to be enrolled in public schools only is unconstitutional since it interferes with the right of parents in rearing their children.

They have the right to choose which school is best suited for the development of their children without interference from the State. THIS IS SO BECAUSE THE CHILDREN ARE NOT MERE CREATURES OF THE STATE. 27. Do we practice the free enterprise system in the Philippines or is it the welfare state concept? Distinguish the two. As held in ACCFA VS. CUGCO, 30 SCRA 649 “the Philippines never practiced the free enterprise system. It is the welfare-state concept which is being followed as shown by the constitutional provision on agrarian reform, housing, protection to labor… (NOTE, however, that the 1987 Constitution have provisions which provide for ―free enterprise). The said doctrine was reiterated in PHILIPPINE COCONUT DESICCATORS VS. PHILIPPINE COCONUT AUTHORITY, 286 SCRA 109 where it was held that the Philippine Constitutions, starting from the 1935 document, HAVE REPUDIATED laissez faire (or the doctrine of free enterprise) as an economic principle, and although the present Constitution enshrines free enterprise as a policy, it nevertheless reserves to the government the power to intervene whenever necessary to promote the general welfare.

As such, free enterprise does not call for the removal of ―protective regulations‖ for the benefit of the general public. This is so because under Art. XII, Sections 6 and 9, it is very clear that the government reserves the power to intervene whenever necessary to promote the general welfare and when the public interest so requires. 27-a. May the PCGG Commissioners refuse to appear before a Senate Committee conducting alleged irregularities committed by them while sitting in the Board of PHILCOMSAT, a private firm sequestered by the government on account of Executive Order No. 1 providing that they should not be the subject of any investigation in connection with their acts in connection with the performance of their duties as such? No. Such act would violate Section 28, Art. II of the Constitution mandating disclosure of all public transactions involving the public interest. Such act would also violate the “right to information on matters of public concern” as well as the “public accountability of public officials” as embodied in Section 1, Art. XI of the 1987 Constitution, not to mention that such would render nugatory the power of Congress under Section 21, Art. VI. IN FACT, GOVERNMENT OFFICIALS HAVE LIMITED RIGHT TO PRIVACY. (SABIO VS. GORDON, 504 SCRA 704) BAR OPERATIONS 2011 Page 6

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28. What Are the limitations to the Congress power to exercise legislative power? The limitations are: 1. it cannot pass irrepealable laws 2. principle of separation of powers 3. non-delegability of legislative powers 29. What are the constitutionally allowed “delegation of legislative power” by Congress? The permissible delegation of legislative power are. 1) Sec. 23 (2) of Article VI (Emergency powers to the President in case of war or other national emergency, for a limited period and subject to such restrictions as Congress may provide, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by Resolution of Congress, such powers shall cease upon the next adjournment thereof. 2) Sec. 28 (2) of Article VI. 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. 3) Delegation to local governments 4) Delegation of Rule-making power to administrative bodies

5) Delegation to the People (Section 2, Art. XVII of the Constitution and Section 32, Article VI—The Congress shall, as early as possible, provide for a system of initiative and referendum, and the exceptions therefrom, whereby the people can directly propose and enact laws or approve or reject any act or law or part thereof passed by the Congress of local legislative body after the registration of a petition thereof signed by at least 10% of the total number of registered voters, of which every legislative district must be represented by at least 3% of the registered voters thereof. 30. What is the completeness test? The sufficiency of standard test? As held in PELAEZ VS. AUDITOR GENERAL, 15 SCRA 569: (a) Completeness Test simply means that the law must be complete in itself when it left Congress. It must set forth therein the policy to be executed, carried out or implemented by the delegate which is not given any discretion; and (b) Sufficiency of Standards Test simply requires Congress to fix a standard, the limits of which are sufficiently determinate or determinable to which the delegate must conform in the performance of his functions.

Some of the standards to guide the delegate are general welfare, public interest, etc. 31. Is it constitutional for the COMELEC to require candidates for all elective offices, including those for President, VP, Senators and members of the House of Representatives to submit a Certification from a government-accredited drug-testing centers that they are free from prohibited drugs before their Certificate of Candidacy is admitted? No, the COMELEC Resolution is unconstitutional. It adds additional qualifications for the President, VOP, Senators and Members of the House of Representatives not required by the Constitution. (PIMENTEL VS. COMELEC, G.R. No. 161658, November 3, 2008)

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31-a. Is a Filipino citizen who became a member of the US Armed Forces and therefore at one time a US Citizen considered “natural born” for purposes of complying with the qualifications of a member of the House of Representatives? Yes as held in ANTONIO BENGSON III VS. HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL and TEODORO CRUZ, 357 SCRA 545 because Rep. Act No. 2630 provides that ―Any person who had lost his Philippine Citizenship by rendering service to, or accepting commission in, the Armed Forces of the United States, or after separation from the Armed Forces of the United states, acquired US citizenship, MAY REACQUIRE PHILIPPINE CITIZENSHIP BY TAKING AN OATH OF ALLEGIANCE TO THE REPUBLIC OF THE PHILIPPINES AND REGISTERING THE SAME WITH THE LOCAL CIVIL REGISTRY IN THE PLACE WHERE HE RESIDES OR LAST RESIDED IN THE PHILIPPINES. The said Oath of allegiance shall contain a renunciation of any other citizenship.‖ And he shall still be considered ―natural born‖ Filipino citizen. 32. If the candidate for Congressman is subsequently disqualified for non-compliance of the residence requirement under Art. VI, may the 2nd placer be declared the winner in his place? When may the 2nd placer be allowed to be declared the winner? It depends.

As held in OCAMPO VS. HOUSE ELECTORAL TRIBUNAL and MARIO CRESPO, a.k.a. MARK JIMENEZ, June 15, 2004. 1. There must be a final judgment disqualifying a candidate in order that the votes of a disqualified candidate can be considered ―stray‖. This final judgment must be rendered BEFORE THE ELECTION. This was the ruling in the case of CODILLA VS. DE VENECIA. Hence, when a candidate has not been disqualified by final judgment during the election day he was voted for, the votes cast in his favor cannot be declared stray. To do so would amount to disenfranchising the electorate in whom sovereignty resides. The reason behind this is that the people voted for him bona fide and in the honest belief that the candidate was then qualified to be the person to whom they would entrust the exercise of the powers of government. 2. The disqualification of a candidate who obtained the highest number of votes AFTER THE ELECTION does not entitle the second placer to be declared the winner. The said principle was laid down as early as 1912 and reiterated in the cases of LABO VS. COMELEC, ABELLA VS. COMELEC and DOMINO VS. COMELEC.

32-a. In order to validly create an aditional district for Cagayan de Oro City, must the law creating it be first submitted to the people therein in a plebiscite in accordance with Section 10, Art. X of the 1987 Constitution? No, because the creation of another district when the same is warranted as when there is an increase of population justifying the creation of a new district does not create a new or divide a local government unit. (BAGABUYO VS. COMELEC, December 8, 2008) 32-b. In the computation of party-list representatives, is the Veterans Federation Party vs. COMELEC Formula or the Panganiban Formula still applicable? No more because it results in a mathematical impossiblity. To strictly comply with it requiring at least 2% for every sectoral representative to obtain in order to garner 1 seat would require 110% in order that there will be 55 sectoral representatives based on the number of legislative districts. 33. In case of vacancy in the Senate or in the House of Representatives under Section 9 of Article VII, is it automatic for the COMELEC to hold a special election?

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No, there must be a law passed by Congress appropriating the funds for the said purpose. ( LOZADA vs. COMELEC, 120 SCRA 337) 34. While a Member of Congress is not allowed to appear as counsel for any party in court or before administrative bodies, may he do so as a “stockholder”? No as held in PUYAT vs. DE GUZMAN, 113 SCRA 31. What could not be done directly could not likewise be done indirectly. So a member of Congress who is a stockholder of the corporation involved in a case is not allowed to appear under the guise that he is appearing as such, not as counsel for the corporation. 35. May a court suspend a member of Congress when Section 16 [3], Article VI appears to give such exclusive power to each House only for disorderly behavior, and with the concurrence of 2/3 of all its members, suspend or expel a Member. A penalty of suspension, when imposed, shall mot exceed sixty days? Yes, this was the rulings of the Supreme Court in the cases of MIRIAM DEFENSOR and REP. PAREDES VS. SANDIGANBAYAN. RA 3019 applies to all government officers and employees.

36. In case of conflict between the entries in a journal of both Houses of Congress and extraneous evidence like affidavits of witnesses, which shall prevail? As held in U.S. vs. PONS, 34 Phil. 729, the journal prevails over extraneous evidence like accounts of newspaper journalists and reporters as to what the proceedings all about. 37. In case of conflict between the journal and the enrolled bill, which shall prevail? In CASCO PHIL. VS. GIMENEZ, 7 SCRA 347, it was held by the Supreme Court that The enrolled bill prevails over the journal. If the enrolled bill provides that it is urea formaldehyde is the one exempt from tax, and not urea and formaldehyde which appears in the journal which was really approved, the former prevails and only CURATIVE LEGISLATION COULD CHANGE THE SAME, NOT JUDICIAL LEGISLATION. However, if the President of the Philippines, Senate President and the Speaker of the House of Representatives withdraw their signatures as a result of an anomaly surrounding the printing of the final copy of the bill, then, the journal will prevail since what is left is no longer considered an ―enrolled bill.‖ (NOTE, however, that the journal prevails over the enrolled bill on all matters required to be entered in the journals, like yeas and nays on the final reading of a bill or on any question at the request of 1/5 of the members present. [Justice Isagani Cruz])

38. May Congress change the existing membership of the Commission on Appointments or Electoral Tribunals as a result of the changes of membership of the different political parties? Yes If the changes in the political party affiliations of the members of Congress is substantial and at the same time permanent so as to dramatically increase the membership of one party while significantly reducing the other, the number of representatives of the different parties in the Commission on Appointments may also be changed in proportion to their actual memberships. (NOTE: In Cunanan vs. Tan, the membership of the Senators was only “temporary” so as not to result in the change of membership in the Commission on Appointments) 38-a. May a political party (LDP) replace its representative in the House of Representatives Electoral Commission who, in a preliminary voting in a protest case against an LDP Member, voted in favor of the other party and against the candidate of his very own party?

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While as a rule the different political parties may change their representatives in the Electoral Tribunal or Commission on Appointments, it may not change a Member who completely heard and participated in a particular case [and has already indicated his vote to the members of the tribunal] and replace him with another who has no participation therein, except only to vote for a party-mate who is involved in the protest. Such would be a travesty of justice. (BONDOC VS. PINEDA, September 26, 1991) 39. May a committee of Congress cite a person for contempt of court for refusing to answer its questions during investigations in aid of legislation? How long may it imprison such witness? As held in ARNAULT vs. NAZARENO, 87 Phil. 29, “A witness who refuses to answer a query by the Committee may be detained during the term of the members imposing said penalty but the detention should not be too long as to violate the witness‟ right to due process of law.”

40. May the President validly prohibit members of the Cabinet and those of the executive department from appearing before any Committee of Congress without her consent? It depends. If the appearance is due to the power of Congress to investigate in aid of legislation under Section 21, Art. VI, such act of the President is unconstitutional for it would violate the oversight powers of Congress and because the appearance of said executive officers is MANDATORY. It would also violate the right to information on the part of the citizens. However, if the invitation to appear is based on Section 22, Art. VI or during the ―question hour‖, then the President may validly demand that they must get her consent first because such appearance is DISCRETIONARY. (SENATE OF THE PHILIPPINES, represented by SENATE PRESIDENT FRANKLIN DRILON, ET AL., VS. EXEC. SEC. EDUARDO ERMITA, ET AL., G.R. No. 16977, April 20, 2006 , 488 SCRA 1) 40-a. While a Member of the Cabinet may be compelled to appear before Congress under Section 21, Art. VI of the Constitution, may he be compelled to answer questions regarding his conversations with the President on matters subject of the investigation/inquiry in aid of legislation? NO IF THE CONVERSATIONS ARE COVERED BY THE ―EXECUTIVE PRIVILEGE‖.

THE “EXECUTIVE PRIVILEGE” DOCTRINE. DISTINGUISH THE “PRESIDENTIAL COMMUNICATIONS PRIVILEGE” AND THE “DELIBERATIVE PROCESS PRIVILEGE” WHICH COMPRISE SAID “EXECUTIVE PRIVILEGE”. WHO ARE COVERED BY THIS RULE?

40-B. EXPLAIN

The Nixon and post-Watergate cases established the broad contours of the presidential communications privilege.1[28] In United States v. Nixon,2[29] the U.S. Court recognized a great public interest in preserving “the confidentiality of conversations that take place in the President‟s performance of his official duties.” It thus considered presidential communications as ―presumptively privileged.‖ Apparently, the presumption is founded on the ―President‟s generalized interest in confidentiality.‖ The privilege is said to be necessary to guarantee the candor of presidential advisors and to provide ―the President and those who assist him… with freedom to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately.” In In Re: Sealed Case, 3[30] the U.S. Court of Appeals delved deeper.

It ruled that there are two (2) kinds of executive privilege; one is the presidential communications privilege and, the other is the deliberative process privilege. The former pertains to “communications, documents or other materials that reflect presidential decision-making and deliberations and that the President believes should remain confidential.” The latter includes „advisory opinions, recommendations 1[28] 2[29] 3[30]

CRS Report for Congress, Presidential Claims of Executive Privilege: History, Law, Practice and Recent Developments at p. 2. 418 U.S. 683. In Re: Sealed Case No. 96-3124, June 17, 1997.

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and deliberations comprising part of a process by which governmental decisions and policies are formulated.” Accordingly, they are characterized by marked distinctions. Presidential communications privilege applies to decision-making of the President while, the deliberative process privilege, to decision-making of executive officials. The first is rooted in the constitutional principle of separation of power and the President‘s unique constitutional role; the second on common law privilege. Unlike the deliberative process privilege, the presidential communications privilege applies to documents in their entirety, and covers final and post-decisional materials as well as pre-deliberative ones4[31] As a consequence, congressional or judicial negation of the presidential communications privilege is always subject to greater scrutiny than denial of the deliberative process privilege.

Turning on who are the officials covered by the presidential communications privilege, In Re: Sealed Case confines the privilege only to White House Staff that has ―operational proximity‖ to direct presidential decision-making. Thus, the privilege is meant to encompass only those functions that form the core of presidential authority, involving what the court characterized as ―quintessential and non-delegable Presidential power,‖ such as commander-in-chief power, appointment and removal power, the power to grant pardons and reprieves, the sole-authority to receive ambassadors and other public officers, the power to negotiate treaties, etc.5[32] The situation in Judicial Watch, Inc. v. Department of Justice6[33] tested the In Re: Sealed Case principles. There, while the presidential decision involved is the exercise of the President‘s pardon power, a non-delegable, core-presidential function, the Deputy Attorney General and the Pardon Attorney were deemed to be too remote from the President and his senior White House advisors to be protected.

The Court conceded that functionally those officials were performing a task directly related to the President‘s pardon power, but concluded that an organizational test was more appropriate for confining the potentially broad sweep that would result from the In Re: Sealed Case’s functional test. The majority concluded that, the lesser protections of the deliberative process privilege would suffice. That privilege was, however, found insufficient to justify the confidentiality of the 4,341 withheld documents. But more specific classifications of communications covered by executive privilege are made in older cases. Courts ruled early that the Executive has a right to withhold documents that might reveal military or state secrets,7[34] identity of government informers in some circumstances,,8[35] and information related to pending investigations.9[36] An area where the privilege is highly revered is in foreign relations.

Majority of the above jurisprudence have found their way in our jurisdiction. In Chavez v. PCGG10[38], this Court held that there is a ―governmental privilege against public disclosure with respect to state secrets regarding military, diplomatic and other security matters.‖ In Chavez v. PEA,11[39] there is also a recognition of the confidentiality of Presidential conversations, correspondences, and discussions in closed-door Cabinet meetings. In Senate v. Ermita, the concept of presidential communications privilege is fully discussed. As may be gleaned from the above discussion, the claim of executive privilege is highly recognized in cases where the subject of inquiry relates to a power textually committed by the Constitution to the President, such as the area of military and foreign relations. Under our Constitution, 4[31] 5[32]

Id. CRS Report for Congress, Presidential Claims of Executive Privilege: History, Law, Practice and Recent Developments at pp.

18-19.
6[33] 7[34]

365 F.3d 1108, 361 U.S.App.D.C. 183, 64 Fed. R. Evid. Serv. 141. See United States v. Reynolds, 345 U.S. 1, 6-8 (1953); Chicago v. Airlines, Inc. v. Waterman Steamship Corp., 333 U.S. 103, 111; Totten v. United States, 92 U.S. 105, 106-107 (1875). 8[35] Roviaro v. United States, 353 U.S. 53, 59-61. 9[36] See Friedman v. Bache Halsey Stuart Shields, Inc. 738 F. 2d 1336,1341-43 (D.C. Cir. 1984). 10[38] 360 Phil. 133 (1998). 11[39] Supra.

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the President is the repository of the commander-in-chief, 12[40] appointing,13[41] pardoning,14[42] and diplomatic15[43] powers. Consistent with the doctrine of separation of powers, the information relating to these powers may enjoy greater confidentiality than others. The above cases, especially, Nixon, In Re Sealed Case and Judicial Watch, somehow provide the elements of presidential communications privilege, to wit: 1) The protected communication must relate to a ―quintessential and non-delegable presidential power.‖ The communication must be authored or ―solicited and received‖ by a close advisor of the President or the President himself. The judicial test is that an advisor must be in ―operational proximity‖ with the President. The presidential communications privilege remains a qualified privilege that may be overcome by a showing of adequate need, such that the information sought ―likely contains important evidence‖ and by the unavailability of the information elsewhere by an appropriate investigating authority. 16[44]

2)

3)

Simply put, the bases are presidential communications privilege and executive privilege on matters relating to diplomacy or foreign relations. Using the above elements, we are convinced that, indeed, the communications elicited by the three (3) questions are covered by the presidential communications privilege. First, the communications relate to a ―quintessential and non-delegable power‖ of the President, i.e. the power to enter into an executive agreement with other countries. This authority of the President to enter into executive agreements without the concurrence of the Legislature has traditionally been recognized in Philippine jurisprudence. 17[45] Second, the communications are ―received‖ by a close advisor of the President. Under the ―operational proximity‖ test, petitioner can be considered a close advisor, being a member of President Arroyo‘s cabinet. And third, there is no adequate showing of a compelling need that would justify the limitation of the privilege and of the unavailability of the information elsewhere by an appropriate investigating authority.

(NOTE: In Nixon, the US Supreme Court held that invocation of “executive privilege” is unavailing if it involves the commission of a crime and there is already a pending criminal case.) We see no dispute on this. It is settled in United States v. Nixon18[48] that ―demonstrated, specific need for evidence in pending criminal trial‖ outweighs the President‘s ―generalized interest in confidentiality.‖ However, the present case‘s distinction with the Nixon case is very evident. In Nixon, there is a pending criminal proceeding where the information is requested and it is the demands of due process of law and the fair administration of criminal justice that the information be disclosed. This is the reason why the U.S.

Court was quick to ―limit the scope of its decision.‖ It stressed that it is “not concerned here with the balance between the President‟s generalized interest in confidentiality x x x and congressional demands for information.” Unlike in Nixon, the information here is elicited, not in a criminal proceeding, but in a legislative inquiry. In this regard, Senate v. Ermita stressed that the validity of the claim of executive privilege depends not only on the ground invoked but, also, on the procedural setting or the context in which the claim is made. Furthermore, in Nixon, the President did not interpose any claim of need to protect military, diplomatic 12[40] 13[41] 14[42] 15[43] 16[44]

Section 18, Article VII. Section 16, Article VII. Section 19, Article VII.
Section 20 and 21, Article VII. CRS Report for Congress, Presidential Claims of Executive Privilege: History, Law Practice and Bernas, S.J., The 1987 Constitution of the Republic of the Philippines, A Commentary, 2003 Ed. p. 903. Supra.

Recent Developments,

supra..
17[45] 18[48]

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or sensitive national security secrets. In the present case, Executive Secretary Ermita categorically claims executive privilege on the grounds of presidential communications privilege in relation to her executive and policy decision-making process and diplomatic secrets. 41. May a person validly refuse to honor an invitation to appear before the Senate Blue Ribbon Committee in connection with its alleged investigation “in aid of legislation”? Yes. In Bengzon, Jr. vs. Senate Blue Ribbon Committee, Nov. 20, 1991, it was held that “the power of both houses of Congress to conduct inquiries in aid of legislation is not, absolute or unlimited. “The rights of persons appearing in or affected by such inquiries shall be respected.” It follows then that the rights of persons under the Bill of Rights must be respected, including the right to due process and the right not to be compelled to testify against one’s self. But broad as is this power of inquiry, it is not unlimited. There is no general authority to expose the private affairs of individuals without justification in terms of the functions of Congress. Nor is the Congress a law enforcement or trial agency.

These are functions of the executive and judicial departments of government. No inquiry is an end in itself; it must be related to and in furtherance of a legitimate task of Congress. Investigations conducted solely for the personal aggrandizement of the investigators or to “punish” those investigated are indefensible. As such, if the person invited is already an accused before the Sandiganbayan or facing a case in the Ombudsman in connection with a subject matter related to the House or Senate inquiry, then he could validly refuse to attend to said hearing. 41-a. May the PCGG Chairman and commissioners refuse to attend inquiries in ad of legislation being done by the Senate because Executive Order No. 1 provides that they should not be questioned regarding their activities as such? No, the provision of Exec. Order No. 1 regarding their privilege not to attend such hearings is unconstitutional. It violates Section 28, Art. II, The right to information under Art. III, Section 21, Art. VI and Section 1, Art. XI or the accountability of public officers. 41-b. May local legislative bodies validly cite a person in contempt of court (as what Congress could do) for refusing to appear therein or to answer the questions of the members thereof? No. In NEGROS ORIENTAL II ELECTRIC COOPERATIVE VS. SANGGUNIANG PANGLUNGSOD OF DUMAGUETE CITY, G.R. No. 72492, Nov. 5, 1987, 155 SCRA 421, the Supreme Court held that such power was not delegated by Congress to local government units.

42. What are the bills that must exclusively originate from the House of Representatives? Under Section 24, Art. VI, All appropriations, revenue or tariff bills, bills authorizing increase of the public debt, bills of local application, and private bills shall originate exclusively in the House of representatives, but the Senate may propose or concur with amendments. (NOTE: In Tolentino vs. Secretary of Finance, the Supreme Court held that the E-VAT Law is constitutional even if the same was the VERSION which came from the Senate, not from the House of Representatives. This is so because the Senate is allowed to ―propose amendments‖ to bills which must exclusively originate from the House of Representatives.) 43. When is transfer of appropriations allowed by the Constitution? Only those covered by Section 25 [5] which provides that ―No law shall be passed authorizing any transfer of appropriations; however, the President, the President of the Senate, the Speaker of the house of Representatives, the Chief justice of the Supreme Court, and the heads of the constitutional commissions may, by law, be authorized to augment any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations.‖ BAR OPERATIONS 2011 Page 13

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44. What is the so-called “executive impoundment”? It means that although an item of appropriation is not vetoed by the President, he however refuses for whatever reason, to spend funds made possible by Congress. It is the failure to spend or obligate budget authority of any type. Proponents of impoundment have invoked at least three (3) principal sources of authority of the President. [1] authority to impound given to him by Congress, either expressly or impliedly; [2] the executive power drawn from his power as Commander-in-chief; and [3] the Faithful execution clause of the Constitution. Note that in this case the SC held that the Countryside Development Fund (CDF) or ―Pork Barrel‖ of Congressmen and Senators is CONSTITUTIONAL because the same is ―set aside for ‗infrastructure, purchase of ambulances and computers and other priority projects and activities, and credit facilities to qualified beneficiaries as proposed and identified by said Senators and Congressmen. (PHILCONSA VS. ENRIQUEZ, 235 SCRA 506) 45. May the President refuse to enforce a law on the ground that in his opinion it is unconstitutional?

No. Otherwise, he will be violating the doctrine of separation of powers because by doing so, he will be arrogating unto himself the power to interpret the law, not merely to implement it. (L.S. MOON & CO. VS. HARRISON, 43 Phil.38) 46. The President of the Philippines, by Administrative Order, mandates the “ADOPTION OF A NATIONAL COMPUTERIZED IDENTIFICATION REFERENCE SYSTEM” and appropriating funds therefore?Is this within his “executive power”? No as held by the Supreme Court in BLAS OPLE VS. RUBEN TORRES, ET AL., G.R. No. 127685, July 23, 1998, the AO establishes a system of identification that is all-encompassing in scope, affects the life and liberty of every Filipino citizens and foreign residents and therefore, it is supposed to be a law passed by Congress that implements it, not by an Administrative Order issued by the President.

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

47. What is the “totality test” used by the Supreme Court in holding that former President Joseph Estrada resigned as President on January 20, 2007? THIS IS THE TOTALITY TEST, THE TOTALITY OF PRIOR, CONTEMPORANEOUS AND POSTERIOR FACTS AND CIRCUMSTANTIAL EVIDENCE BEARING MATERIAL RELEVANCE TO THE ISSUE. 48. Is President Gloria Macapagal Arroyo a de jure or a de facto President? If de jure, how did she succeed? Resignation or permanent disability of former President Estrada? Since both Houses of Congress had recognized that Arroyo is the President when they passed Resolution ―expressing their support to the administration of Her Excellency Gloria Macapagal Arroyo, President of the Philippines‖ which was passed on January 24, 2001; another resolution dated January 24, 2001 ―expressing full support to the assumption into office by VP Arroyo as President of the Philippines‖; and the Resolution dated February 7, 2001 ―confirming President Arroyo‘s nomination of Senator Teopisto Guingona, Jr. as Vice President of the Philippines‖, her government is de jure. BAR OPERATIONS 2011 Page 14

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49. May the President makes appointment to vacancies in the judiciary within two months immediately before the next presidential election and up to the end of his term” in order to comply with the requirement of Sections 4 and 8, Art. VIII for him to fill up vacancies in the judiciary within 90 days from the submission of the list of nominees by the Judicial and Bar Council? No. Section 15, Article VII applies only to temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety and not to the judiciary. 50. What appointments made by the President shall be the subject of confirmation by the Commission on Appointments? Only those covered by the 1st sentence of Section 16, Art. VII which are the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers are vested in him in this Constitution.

51. May the President make temporary appointments involving the members of the Cabinet while Congress in session or not in session? Distinguish ad interim appointment and appointment in an acting capacity. Yes provided the temporary appointments of cabinet members do not exceed one (1) year. (SEN. AQUILINO PIMENTEL, et al., vs. EXEC. SECRETARY EDUARDO ERMITA, et al., 472 SCRA 587) 1. The temporary appointments are valid. The power to appoint is essentially executive in nature and the legislature may not interfere with the exercise of this executive power except in those instances when the Constitution expressly allows it to interfere. The essence of an appointment in an acting capacity is its temporary nature. It is a stop-gap measure intended to fill an office for a limited time until the appointment of a permanent occupant to the office. In case of vacancy in an office occupied by an alter ego of the President, such as the office of a department secretary, the President must necessarily appoint an alter ego of her choice as acting secretary before the permanent appointee of her choice could assume office. Congress, through a law cannot impose on the President the obligation of automatically appointing the Undersecretary as her alter ego.

He must be of the President‘s confidence and provided that the temporary appointment does not exceed one (1) year. There is a need to distinguish ad interim appointments and appointments in an acting capacity. While both are effective upon acceptance, ad interim appointments are extended only during the recess of Congress, whereas acting appointments may be extended any time that there is a vacancy. Moreover, ad interim appointments are submitted to the Commission on Appointments for confirmation or rejection; acting appointments are not submitted to the Commission on appointments. Acting appointments are a way of temporarily circumventing the need of confirmation by the Commission on Appointments. 52. What is the “take care power” of the President of the Philippines?

It is the power of the President under Section 17, Art. VII which provides that The President shall have control of all the executive departments , bureaus and offices. He shall ensure that the laws be faithfully executed. 53. What is the power of control of the President. Distinguish it from power of supervision. “Control” has been defined as “the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for test of the latter.” “Supervision” on the other hand means “overseeing or the power or authority of an officer to see that subordinate officers perform their duties. (MONDANO VS. SILVOSA) BAR OPERATIONS 2011 Page 15

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54. May the President validly require all officers and employees under the executive department to maintain ID systems and have ID cards? Yes in accordance with her power of control under Section 17, Art. VII of the Constitution. (KILUSANG MAYO UNO VS. EXECUTIVE SECRETARY EDUARDO ERMITA, ET AL., April 19, 2006 & June 20, 2006) But not for a national ID system which includes civilians as held in Ople vs. Torres, supra. 55. What is the doctrine of qualified political agency? It simply means that ―the President is not expected to perform in person an the multifarious executive and administrative functions. The Office of the Executive Secretary is an auxillary unit which assists the President. Under our constitutional set-up, the Executive Secretary acts for and in behalf of the President: and by authority of the President, he has undisputed jurisdiction to affirm, modify, or even reverse any order of the Secretary of Natural Resources and other Cabinet Secretaries. Where the Executive Secretary acts “by authority of the President” his decision is that of the President. (Lacson-Magallanes Co., Inc. vs. Pano, 21 SCRA 895). 56. What are the differences between the power of the President to declare martial law or suspend the privilege of the writ of habeas corpus under the 1987 Constitution and the previous Constitutions? Under the 1987 Philippine Constitution, such acts of the President may be reviewed not only by the Supreme Court but also the Congress of the Philippines. Previously, such would be considered ―political question‖ which is beyond the review powers of the courts. Likewise, there is a definite period for the said suspension unlike before and more importantly, the grounds are only invasion and rebellion WHEN THE PUBLIC SAFETY REQUIRES IT.

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within 30 days from its filing. A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ. The suspension of the privilege of the writ 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 charged within 3 days, otherwise, he shall be released. 57. May the President under the 1987 Constitution validly issue decrees after declaring a state of national emergency.

May she direct the take over of business affected with national interest by reason of the “emergency” which she herself proclaimed? I n t h e c a s e o f PROF. RANDOLF S. DAVID, et Al VS. GLORIA MACAPAGAL-ARROYO, AS PRESIDENT AND COMMANDER-IN-CHIEF, et al., G.R. No. 171396, May 3, 2006, it was held that in declaring a state of national emergency, President Arroyo did not only rely on Section 18, Article VII of the Constitution, a provision calling on the AFP to prevent or suppress lawless violence, invasion or rebellion. She also relied on Section 17, Article XII, a provision on the State‘s extraordinary power to take over privately-owned public utility and business affected with public interest. The Supreme Court ruled that the assailed PP 1017 is unconstitutional insofar as it grants President Arroyo the authority to promulgate ―decrees.‖ Legislative power is peculiarly within the province of the Legislature. Section 1, Article VI categorically states that ―[t]he legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of BAR OPERATIONS 2011 Page 16

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Representatives.‖ To be sure, neither Martial Law nor a state of rebellion nor a state of emergency can justify President Arroyo‘s exercise of legislative power by issuing decrees. Likewise, the exercise of emergency powers, such as the taking over of privately owned public utility or business affected with public interest, is also unconstitutional. This requires a delegation from Congress. 58. What are the requisites of judicial review? Courts may exercise the power of judicial review only when the following requisites are present: first, there must be an actual case or controversy; second, petitioners have to raise a question of unconstitutionality; third, the constitutional question must be raised at the earliest opportunity; and fourth, the decision of the constitutional question must be necessary to the determination of the case itself. 59. When may the courts still validly decide moot and academic cases? A moot and academic case is one that ceases to present a justiciable controversy by virtue of supervening events,19 so that a declaration thereon would be of no practical use or value. Generally, courts decline jurisdiction over such case 20 or dismiss it on ground of mootness.

The “moot and academic‖ principle is not a magical formula that can automatically dissuade the courts in resolving a case. Courts will decide cases, otherwise moot and academic, if: first, there is a grave violation of the Constitution (Province of Batangas vs. Romulo, .R. No. 152774, May 27, 2004, 429 SCRA 736). second, the exceptional character of the situation and the paramount public interest is involved (Lacson vs. Perez, G.R. No. 147780, May 10, 2001, 357 SCRA 756); third, when constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public (Province of Batangas vs. Romulo); and fourth, the case is capable of repetition yet evading review (Albaña v. Commission on Elections, G.R. No. 163302, July 23, 2004, 435 SCRA 98, Acop v. Guingona, Jr., G.R. No. 134855, July 2, 2002, 383 SCRA 577, Sanlakas v. Executive Secretary, G.R. No. 159085, February 3, 2004, 421 SCRA 656. ) 60. Define locus standi. Locus standi is defined as ―a right of appearance in a court of justice on a given question.‖ 21 In private suits, standing is governed by the ―real-parties-in interest‖ rule as contained in Section 2, Rule 3 of the 1997 Rules of Civil Procedure, as amended. It provides that ―every action must be prosecuted or defended in the name of the real party in interest.‖ Accordingly, the ―real-party-in interest‖ is ―the party who stands to be benefited or injured by the judgment in the suit or the party entitled to the avails of the suit.‖22 Succinctly put, the plaintiff‘s standing is based on his own right to the relief sought. 61. What are the tests of locus standi in the Philippines?

19 20 21 22

Province of Batangas v. Romulo, G.R. No. 152774, May 27, 2004, 429 SCRA 736. Royal Cargo Corporation v. Civil Aeronautics Board, G.R. Nos. 103055-56, January 26, 2004, 421 SCRA 21; Vda. De Dabao v. Court of Appeals, supra. Black‘s Law Dictionary, 6 th Ed. 1991, p. 941. Salonga v. Warner Barnes & Co., 88 Phil. 125 (1951).

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The original was: [1] If the act involves the disbursement of public funds, mere taxpayer has the capacity to sue and question such act. [2] If it does not involve disbursement of public funds, only those who are ―directly injured‖ by the said law or contract entered into by the government. Case law in most jurisdictions now allows both ―citizen‖ and ―taxpayer‖ standing in public actions. The distinction was first laid down in Beauchamp v. Silk,23 where it was held that the plaintiff in a taxpayer‘s suit is in a different category from the plaintiff in a citizen‘s suit. In the former, the plaintiff is affected by the expenditure of public funds, while in the latter, he is but the mere instrument of the public concern

However, to prevent just about any person from seeking judicial interference in any official policy or act with which he disagreed with, and thus hinders the activities of governmental agencies engaged in public service, the United State Supreme Court laid down the more stringent ―direct injury‖ test in Ex Parte Levitt,24 later reaffirmed in Tileston v. Ullman.25 The same Court ruled that for a private individual to invoke the judicial power to determine the validity of an executive or legislative action, he must show that he has sustained a direct injury as a result of that action, and it is not sufficient that he has a general interest common to all members of the public.

This Court adopted the “direct injury” test in our jurisdiction. In People v. Vera,26 it held that the person who impugns the validity of a statute must have ―a personal and substantial interest in the case such that he has sustained, or will sustain direct injury as a result.‖ The Vera doctrine was upheld in a litany of cases, such as, Custodio v. President of the Senate,27 Manila Race Horse Trainers’ Association v. De la Fuente,28 Pascual v. Secretary of Public Works29 and Anti-Chinese League of the Philippines v. Felix.30 However, being a mere procedural technicality, the requirement of locus standi may be waived by the Court in the exercise of its discretion. This was done in the 1949 Emergency Powers Cases, Araneta v. Dinglasan,31 where the ―transcendental importance‖ of the cases prompted the Court to act liberally. Such liberality was neither a rarity nor accidental. In Aquino v. Comelec,32 this Court resolved to pass upon the issues raised due to the ―far-reaching implications‖ of the petition notwithstanding its categorical statement that petitioner therein had no personality to file the suit. Indeed, there is a chain of cases where this liberal policy has been observed, allowing ordinary citizens, members of Congress, and civic organizations to prosecute actions involving the constitutionality or validity of laws, regulations and rulings. 33

23 24 25 26 27 28 29 30 31

275 Ky 91, 120 SW2d 765 (1938). 302 U.S. 633. 318 U.S. 446. 65 Phil. 56 (1937). G.R. No. 117, November 7, 1945 (Unreported). G.R. No. 2947, January 11, 1959 (Unreported). 110 Phil. 331 (1960). 77 Phil. 1012 (1947). 84 Phil. 368 (1949) The Court held: ―Above all, the transcendental importance to the public of these cases demands that they be settled promptly and definitely, brushing aside, if we must, technicalities of procedure.‖ L-No. 40004, January 31, 1975, 62 SCRA 275. Tañada v. Tuvera, G.R. No. 63915, April 24, 1985, 136 SCRA 27, where the Court held that where the question is one of public duty and the enfor cement of a public right, the people are the real party in interest, and it is sufficient that the petitioner is a citizen interested in the execution of the law; Legaspi v. Civil Service Commission, G.R. No. 72119, May 29, 1987, 150 SCRA 530, where the Court held that in cases involving an assertion of a public right, the requirement of personal interest is satisfied by the mere fact that the petitioner is a citizen and part of the general public which possesses the right.

Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan, L. No. 81311, June 30, 1988, 163 SCRA 371, where the Court held that objections to taxpayers‘ lack of personality to sue may be disregarded in determining the validity of the VAT law; Albano v. Reyes, G.R. No. 83551, July 11, 1989, 175 SCRA 264, where the Court held that while no expenditure of public funds was involved unde r the questioned contract, nonetheless considering its important role in the economic development of the country and the magnitude of the financial consideration involved, public interest was definitely involved and this clothed petitioner with the legal personality under the disclosure provision of the Constitution to question it. Association of Small Landowners in the Philippines, Inc. v. Sec. of Agrarian Reform, G.R. No. 78742, July 14, 1989, 175 SCRA 343, where the Court ruled that while petitioners are strictly speaking, not covered by the definition of a ―proper party,‖ nonetheless, it has the discretion to waive the requirement, in determining the validity of the implementation of the CARP.

32 33

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Thus, the Court has adopted a rule that even where the petitioners have failed to show direct injury, they have been allowed to sue under the principle of ―transcendental importance.‖ Pertinent are the following cases: (1) Chavez v. Public Estates Authority,34 where the Court ruled that the enforcement of the constitutional right to information and the equitable diffusion of natural resources are matters of transcendental importance which clothe the petitioner with locus standi; (2) Bagong Alyansang Makabayan v. Zamora,35 wherein the Court held that “given the transcendental importance of the issues involved, the Court may relax the standing requirements and allow the suit to prosper despite the lack of direct injury to the parties seeking judicial review” of the Visiting Forces Agreement;

(3) Lim v. Executive Secretary, 36 while the Court noted that the petitioners may not file suit in their capacity as taxpayers absent a showing that ―Balikatan 02-01‖ involves the exercise of Congress‘ taxing or spending powers, it reiterated its ruling in Bagong Alyansang Makabayan v. Zamora,37 that in cases of transcendental importance, the cases must be settled promptly and definitely and standing requirements may be relaxed. By way of summary, the following rules may be culled from the cases decided by this Court. Taxpayers, voters, concerned citizens, and legislators may be accorded standing to sue, provided that the following requirements are met: 1. 2. 3. 4. 5. the cases involve constitutional issues; for taxpayers, there must be a claim of illegal disbursement of public funds or that the tax measure is unconstitutional; for voters, there must be a showing of obvious interest in the validity of the election law in question; for concerned citizens, there must be a showing that the issues raised are of transcendental importance which must be settled early; and for legislators, there must be a claim that the official action complained of infringes upon their prerogatives as legislators.

Significantly, recent decisions show a certain toughening in the Court‘s attitude toward legal standing. In Kilosbayan, Inc. v. Morato,38 the Court ruled that the status of Kilosbayan as a people‘s organization does not give it the requisite personality to question the validity of the on-line lottery Gonzales v. Macaraig, Jr., G.R. No. 87636, November 19, 1990, 191 SCRA 452, where the Court held that it enjoys the open discretion to entertain taxpayer‘s suit or not and that a member of the Senate has the requisite personality to bring a suit where a constitutional issue is raised. Maceda v. Macaraig, Jr., G.R. No. 88291, May 31, 1991, 197 SCRA 771, where the Court held that petitioner as a taxpayer, has the personality to file the instant petition, as the issues involved, pertains to illegal expenditure of public money;

Osmeña v. Comelec, G.R. No. 100318, 100308, 100417,100420, July 30, 1991, 199 SCRA 750, where the Court held that where serious constitutional questions are involved, the ―transcendental importance‖ to the public of the cases involved demands that they be settled promptly and definitely, brushing aside technicalities of procedures; De Guia v. Comelec, G.R. No. 104712, May 6, 1992, 208 SCRA 420, where the Court held that the importance of the issues involved concerning as it does the political exercise of qualified voters affected by the apportionment, necessitates the brushing aside of the procedural requirement of locus standi. 34 35 36 37 38

G.R. No. 133250, July 9, 2002, 384 SCRA 152. G.R. Nos. 138570, 138572, 138587, 138680, 138698, October 10, 2000, 342 SCRA 449. G.R. No. 151445, April 11, 2002, 380 SCRA 739. Supra. G.R. No. 118910, November 16, 1995, 250 SCRA 130.

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contract, more so where it does not raise any issue of constitutionality. Moreover, it cannot sue as a taxpayer absent any allegation that public funds are being misused. Nor can it sue as a concerned citizen as it does not allege any specific injury it has suffered. In Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Comelec,39 the Court reiterated the ―direct injury‖ test with respect to concerned citizens‘ cases involving constitutional issues. It held that ―there must be a showing that the citizen personally suffered some actual or threatened injury arising from the alleged illegal official act.‖ In Lacson v. Perez, 40 the Court ruled that one of the petitioners, Laban ng Demokratikong Pilipino (LDP), is not a real party-in-interest as it had not demonstrated any injury to itself or to its leaders, members or supporters. In Sanlakas v. Executive Secretary,41 the Court ruled that only the petitioners who are members of Congress have standing to sue, as they claim that the President‘s declaration of a state of rebellion is a usurpation of the emergency powers of Congress, thus impairing their legislative powers. As to petitioners Sanlakas, Partido Manggagawa, and Social Justice Society, the Court declared them to be devoid of standing, equating them with the LDP in Lacson. 62. What is the “take over” provision of the Constitution.

May the President validly exercise the same? This is Section 17, Article XII , which reads: Sec. 17. In times of national emergency, when the public interest so requires, the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately-owned public utility or business affected with public interest. While the President alone can declare a state of national emergency, however, without legislation, he has no power to take over privately-owned public utility or business affected with public interest. The President cannot decide whether exceptional circumstances exist warranting the take over of privately-owned public utility or business affected with public interest. Nor can he determine when such exceptional circumstances have ceased. Likewise, without legislation, the President has no power to point out the types of businesses affected with public interest that should be taken over.

In short, the President has no absolute authority to exercise all the powers of the State under Section 17, Article VII in the absence of an emergency powers act passed by Congress. 63. What are the limitations of the President’s power of executive clemency? The same is not available in cases of impeachment as well as violation of election laws, rules and regulations without the favorable recommendation of the Commission on Elections. (Section 19, Art. VII and Section 5, Art. IX-C)) 64. Distinguish pardon from amnesty. As held in BARRIOQUINTO VS. FERNANDEZ, 82 Phil. 642, the distinctions are as follows: [1] Pardon is granted by the Chief Executive and as such it is a private act which must be pleaded and proved by the person pardoned, because the courts take no notice thereof; while amnesty by Proclamation of the Chief Executive with the concurrence of Congress, and it is a public act of which the courts should take judicial notice. 39 40 41

G.R. No. 132922, April 21, 1998, 289 SCRA 337. G.R. No. 147780, 147781, 147799, 147810, May 10, 2001, 357 SCRA 756. G.R. No. 159085, February 3, 2004, 421 SCRA 656.

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[2] Pardon is granted to one after conviction (of ordinary crimes) ; while amnesty is granted to classes of persons or communities who may be guilty of political offenses, generally before or after the institution of the criminal prosecution and sometimes after conviction. [3] Pardon looks forward and relieves the offender from the consequences of an offense of which he has been convicted, that is, it abolished or forgives the punishment, and for that reason it does “”nor work the restoration of the rights to hold public office, or the right of suffrage, unless such rights be expressly restored by the terms of the pardon,” and it “in no case exempts the culprit from the payment of the civil indemnity imposed upon him by the sentence” article 36, Revised Penal Code). while amnesty looks backward and abolishes and puts into oblivion the offense itself, it so overlooks and obliterates the offense with which he is charged that the person released by amnesty stands before the law precisely as though he had committed no offense. (section 10[6], Article VII, Philippine Constitution; State vs. Blalock, 62 N.C., 242, 247; In re Briggs, 135 N.C., 118; 47 S.E. 402., 403; Ex parte Law, 35 GA., 285, 296; State ex rel AnheuserBusch Brewing Ass’n. vs. Eby, 170 Mo., 497; 71 S.W 52, 61; Burdick vs United States, N.Y., 35 S. Ct., 267; 271; 236 U.S., 79; 59 Law. ed., 476.) [4]

Pardon is complete with the act of the President while Amnesty is valid only with the concurrence of the majority of the members of all the members of Congress. 65. Is it required for the person applying for amnesty to admit his guilt before his amnesty application be considered? Yes as held in VERA VS. PEOPLE, 7 SCRA 152. Before one may validly apply for executive clemency (pardon or amnesty) he MUST ADMIT HAVING COMMITTED THE ACTS WHICH RESULTED IN HIS IMPRISONMENT. This rule abandoned the contrary ruling in Barrioquinto vs. Fernandez. 66. May a public officer, who has been granted an absolute pardon by the Chief Executive, entitled to automatic reinstatement to her former position without need of a New appointment?

No. As held in MONSANTO VS. FACTORAN,February, 1989, a pardon looks to the future. It is not retrospective. It makes no amends for the past. It affords no relief for what has been suffered by the offender. It does not impose upon the government any obligation to make reparation for what has been suffered. “Since the offense has been established by judicial proceedings, that which has been done or suffered while they were in force is presumed to have been rightfully done and justly suffered, and no satisfaction for it can be required.” This would explain why petitioner, though pardoned, cannot be entitled to reinstatement, unless appointed again by the appointing authority, receive backpay for lost earnings and benefits.

67. May the power of executive clemency applied to administrative cases like the suspension of a Provincial Governor? Yes. This was the ruling of the Supreme Court in Llamas vs. Exec. Sec. Orbos, Oct. 15, 1991. The word “conviction in Section 19, Art. VII of the Constitution may be used either in a criminal case or in an administrative case. 68. Is the mere filing of a criminal case against a recipient of a conditional pardon with the condition “not again violate any of the penal laws of the Philippines and this condition be violated, he will be proceeded against in the manner prescribed by law” sufficient to revoke such conditional pardon without first securing conviction against the grantee? Yes. As held in TORRES VS. GONZALES, 152 SCRA 272, the determination of whether the conditions of a convict‘s pardon had been breached rests exclusively in the sound judgment of the BAR OPERATIONS 2011 Page 21

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President and that such determination would not be reviewed by the courts. As held in Tesoro vs. Director of Prisons, in accepting the terms under which the parole had been granted, Tesoro had in effect agreed that the Governor-General’s determination (rather than that of the regular courts of law) that he had breached one of the conditions of his parole by committing adultery while he was conditionally at liberty, was binding and conclusive upon him. 69. What are the requisites before the President or his representatives may validly contract or guarantee foreign loans? Under Section 20, Art. VII, the President may contract or guarantee foreign loans on behalf of the Republic of the Philippines subject to the following conditions: a. there must be prior concurrence of the Monetary Board; b. subject to such limitations as may be provided for by law.

Further, the Monetary Board shall, within 30 days from the end of every quarter of the calendar year, submit to the Congress a complete report of its decisions on applications for loans to be contracted or guaranteed by the government or government owned and controlled corporations which would have the effect of increasing the foreign debt, and containing other matters as may be provided for by law. 70. What is judicial power? 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 in excess of jurisdiction on the part of any branch or instrumentality of the government. 71. May judicial power be exercised by the Supreme Court in cases of decisions of the House of Representatives Electoral tribunal since Section 16, Art. VI of the Constitution provides that the HRET is the “sole judge” of all contestests involving the election, returns and qualifications of the members of the House of Representatives? Yes if there is allegation of grave abuse of discretion amounting to lack or in excess of jurisdiction on the part of the HRET (BONDOC VS. PINEDA)

72. What is a political question? In ALMARIO VS. ALBA, 127 SCRA 6, it was defined as a question which deals with the necessity, expediency and wisdom of a particuar act, the same is political and not justiciable In Sanidad vs. Comelec, 73 SCRA 333, political questions was defined as questions which are neatly associated with the wisdom, not the legality of a particular act. Where the vortex of the controversy refers to the legality or validity of the contested act, the matter is definitely justiciable or non-political. In Tanada vs. Cuenco, 103 Phil., political question was defined as questions to be answered by the people in their sovereign capacity or in regard to which full discretionary authority is vested to the executive or legislative branch of the government. Or in Gonzales vs. COMELEC, 21 SCRA 774 , when the crux of the problem deals with the wisdom of an act, it is political). 73. What is the extent of the fiscal autonomy granted to the judiciary under the 1987 Constitution? As provided under Section 3, At. VIII, the judiciary shall enjoy fiscal autonomy and as such appropriations for the judiciary may not be reduced by the legislature below the amount BAR OPERATIONS 2011 Page 22

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appropriated for the previous year and, after approval, shall be automatically and regularly released. 74. What are the cases to be decided by the Supreme Court en banc? All cases involving the constitutionality of a treaty, international or executive agreement, or law, which shall be heard by the Supreme Court en banc, including those involving the constitutionality, application, or operation of presidential decrees, proclamations, orders, instructions, ordinances, and other regulations, shall be decided with the concurrence of a majority of the members who actually took part in the deliberations on the issues in the case and voted thereon. Also, no doctrine or principle of law laid down by the court en banc or in division may be modified or reversed except by the court sitting en banc. Also if two (2) divisions of the Supreme Court have conflicting decisions, the same shall be resolved by the Supreme Court en banc. Cases referred to by the division to the banc involving novel questions of law , the same shall be decided by the en banc accepted by the latter. Finally, dismissal of judges and disbarment of lawyers are also decided by the Supreme Court en banc.

75. What are the powers of the Supreme Court? As enumerated in Art. VIII, Section 5, t he Supreme Court shall have the following powers: (1) Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus. (2) Review, revise, reverse, modify, or affirm on appeal or certiorari as the law or the Rules of Court may provide, final judgments and orders of lower courts in: (a) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question; (b) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto; (c) All cases in which the jurisdiction of any lower court is in issue; (d) All criminal cases in which the penalty imposed is reclusion perpetua or higher; (e) All cases in which only an error or question of law is involved.

(3) Assign temporarily judges of lower courts to other stations as public interest may require. Such temporary assignment shall not exceed 6 months without the consent of the judge concerned. (4) Order a change of venue or place of trial to avoid a miscarriage of justice. (5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading , practice , and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court. BAR OPERATIONS 2011 Page 23

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(6) Appoint all officials and employees of the judiciary in accordance with the civil service law. 76. What is the “writ of amparo”? It is a writ issued by the courts for the protection and enforcement of the constitutional rights of a person under detention. (Section 5 (5), Art. VIII) 77. What are the 3-fold Functions of Judicial Review? These are the: 1) legitimizing function or to declare the law valid and constitutional; 2) checking function or to declare the law unconstitutional; 3) symbolic or educational function or when the supreme court decide a case even if it is moot and academic to educate the lower courts and other government officials. 78. May inferior courts also exercise the power of judicial review (declaring a law, treaty, etc. unconstitutional) in the light of the requirements of Section 4(2) of Article VIII that not even any of the Supreme Court’s three (3) divisions, sitting separately could not declare a law, treaty, etc., unconstitutional? Yes because the power of judicial review is just a part of judicial power which is available to all courts (Section 1, Art. VIII).

Likewise, as shown by Section 5 [2] (a), the decision of lower courts declaring a law unconstitutional is subject to review by the Supreme Court. (YNOT VS. IAC, March 20, 1987) 79. What is the “operative fact doctrine”? It simply means that the declaration of unconstitutionality of a law, treaty, etc., is prospective. As such, all acts done in connection with the said law before its declaration of unconstitutionality shall be considered legal, valid and binding. It is only the declaration of unconstitutionality which is the ―operative fact‖ which would stop the people from complying with its provisions. (DE AGBAYANI VS. PNB, 38 SCRA 429) 80. What are the qualities of one aspiring to become a member of the judiciary aside from the citizenship and age qualifications? A member of the judiciary must be a person of proven competence, integrity, probity and independence. 81. Under the 1987 Constitution, may the salaries of the members of the judiciary be taxed without violating Section 10, Article VIII which would have the effect of decreasing the same?

No. This was the ruling in NITAFAN VS. COMMISSIONER, 152 SCRA 284 which abandoned the contrary rulings in the cases of PERFECTO VS. MEER, 85 Phil. 552 and ENDENCIA VS. DAVID, 93 Phil. 696 82. Up to when are members of the judiciary entitled to hold on to their positions? Section 11, Art. VIII provides that the Members of the Supreme Court and judges of the lower court shall hold office during good behavior until they reach the age of 70 years or become incapacitated to discharge the duties of their office. The Supreme Court en banc shall have the power to discipline judges of lower courts, or order their dismissal by a vote of majority of the members who actually took part in the deliberations on the issues in the case and voted thereon. 83. May an RTC Judge be appointed as a member of the Provincial Peace and Order Council of the place where he holds office? BAR
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No. The members of the Supreme Court and other courts established by law shall not be designated to any agency performing quasi-judicial or administrative functions. (IN RE: JUDGE RODOLFO MANZANO, October 5, 1988) 84. Are the different administrative and quasi-judicial bodies (COMELEC, NLRC, NAPOLCOM, MILITARY COMMISSIONS) bound by the requirement of Section 14, Art. VIII that “No decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based”? No. It applies only to the courts as defined or included by Section 1, Art. VIII. (AIR FRANCE VS. CARRASCOSO, 18 SCRA 155, VDA DE ESPIRITU VS. CFI, 47 SCRA 354, BUSCAYNO VS. ENRILE, 102 SCRA 7, MANGCA VS. COMELEC, 112 SCRA 273, VALLADOLID VS. INCIONG, 121 SCRA 205, NAPOLCOM VS. LOOD, 127 SCRA 75, NUNAL VS. CA, 169 SCRA 356 and Mangelen vs. CA, 215 SCRA 230) 85.

What are the periods given to the different courts to decide cases before them? Under Section 15, Art. VIII, all cases or matters filed after the effectivity of this Constitution must be decided or resolved within 24 months from date of submission for the Supreme Court, and unless reduced by the Supreme Court, 12 months for all lower collegiate courts, and 3 months for all other lower courts. A case shall be deemed submitted for decision or resolution upon the filing of the last pleading, brief or memorandum required by the Rules of Court or by the court itself. Under Section 18, Art. VII, however, a case questioning the validity of the declaration of martial law or suspension of the writ of habeas corpus must be decided within 30 days from the date of filing. 86. Is the requirement under Section 15, Art. VIII mandatory or merely directory? Section 15, Art. VIII is mandatory in all courts except the Supreme Court where said provision is considered merely directory.

This is so because it is ―impossible‖ for the Supreme Court to comply with such provision considering the volume of cases filed before it. (CORPUS VS. CA 98 SCRA 424, MALACORA VS. CA, 117 SCRA 435, MARCELINO VS. CRUZ, 121 SCRA 51 and DE ROMA VS. CA, 152 SCRA 205) 87. What are covered by the powers of the Civil Service Commission? Under Section 2,

Article IX-B of the Constitution, the civil service embraces all branches, subdivisions, instrumentalities, and agencies of the government, including government owned and controlled corporations WITH ORIGINAL CHARTERS. 88. What are the requirements before one may be appointed in the civil service? Exceptions? Appointments in the CS shall be made only according to merit and fitness to be determined as far as practicable, and except as to positions which are policy determining, primarily confidential or highly technical, by competitive examination. 89. Define the three (3) exceptions to the rule that the appointee must be chosen based on merit and fitness to be determined by competitive examination? Policy determining is one charged with laying down of principal or fundamental guidelines or rules, such as that head of a department. Primarily confidential position is one denoting not only confidence in the aptitude of the appointee for the duties of the office but primarily close intimacy which ensures freedom of BAR OPERATIONS 2011 Page 25

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intercourse without embarrassment or freedom from misgivings or betrayals of the personal trust on confidential matters of the state (Example: Chief Legal Counsel of the PNB, Besa vs. PNB, 33 SCRA 330) Highly technical position requires the appointee thereto to possess technical skill or training in the supreme or superior degree. 90. Is the position of City Engineer of Baguio City a “highly technical” position? No. The position of City Engineer of Baguio City is technical ―but not highly so.‖ (DE LOS SANTOS VS. MALLARE, 87 Phil. 289) 91. Is there such a thing as “next-in-rank” or seniority rule in filling up vacancies in the classified civil service? No. As held in Medenilla vs. CSC, February 19, 1991, there is no need “to wait for the deadwoods to retire” before one may be promoted to fill-up a vacancy as a result of the presence of other employees with longer years of service or “next-in-rank”. What is important is that the appointee meets all the qualifications for the said position.

92. What is the extent of the powers of the CSC in appointment cases? It has only the power to approve the appointment if the appointee meets all the qualifications and the power to deny the appointment if the appointee does not meet the qualifications. IT DOES NOT HAVE THE POWER TO SUBSTITUTE THE APPOINTEE CHOSEN BY THE APPOINTING AUTHORITY WITH ANOTHER WHICH IT BELIEVES TO BE MORE QUALIFIED. 93. Is the position of City or Provincial Legal Officer a primarily confidential position? Yes, as held in CADIENTE VS. SANTOS, 142 SCRA 280, the Provincial Legal Officer is a primarily confidential office, but not his assistant. The same was reiterated in SAMSON VS. CA, 145 SCRA where it was held that The City Legal officer is a primarily confidential officer. 94. May gov’t. employees form unions for purposes of collective bargaining and to strike against the government? As held in ALLIANCE OF GOVT. WORKERS VS. MOLE,

124 SCRA and Executive Order No. 180 , June 1, 1987, government employees may form unions but not authorized to strike or demand for collective bargaining agreement with the government. authorizing govt. employees to form unions. 95. May government employees be removed without cause as a result of a government reorganization? No. This is clear from RA 6656, June 10, 1988 , which is ―An act to protect the security of tenure of civil service officers and employees in the implementation of government reorganization.‖ There must be full compliance of the due process requirement. It must be based on just cause and with due process.( DARIO VS. MISON, August 8, 1989, FLOREZA VS. ONGPIN, February 26, 1990, MENDOZA VS. QUISUMBING, June 4, 1990, DOTC vs. CSC, October 3, 1991, Romualdez vs. CSC, August 12, 1993 and Torio vs. CSC, 209 SCRA 677) 96. May a person be appointed in a temporary capacity as a Commissioner of the Commission on Elections? No, Section 1, Art. IX-C provides that ―In no case shall any member be appointed or designated in a temporary or acting capacity. ―)Brillantes vs. Yorac, Dec. 18, 1991) BAR OPERATIONS 2011 Page 26

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97. What are the more important powers of the COMELEC? Under Section 2, Art. IX-C, its powers are to enforce and administer all laws relative to the conduct of election, plebiscite, initiative, referendum and recall….original jurisdiction over all contests relating to the elections, returns, and qualifications of all elective regional, provincial and city officials and appellate jurisdiction over all contests involving elective municipal officials decided by courts of general jurisdiction and elective barangay officials decided by trial courts of limited jurisdiction. Also, it has the power to: a. b. c. d. Deputize law enforcement agencies, including the AFP.. Register political parties, except religious groups File complaints for violation of election laws Regulate the enjoyment or utilization of all franchises for the operation of transportation and other public utilities, media of communication..

98. Which court has jurisdiction over election cases involving municipal and barangay officials? Election cases involving municipal official shall be filed before the RTC whose decision may be appealed to the COMELEC. Those involving barangay officials shall be filed with the MTC whose decision is likewise subject to appeal to the COMELEC whose decision in both instances is final and not appealable. 99. Where must election cases involving city and provincial officials be filed? It must be filed with the COMELEC, not with the courts. 100. Does the President have discretion on the release of the Internal Revenue Allotment (IRA) for the Local Government Service Equalization Fund (LGSEF) and may she validly impose conditions for the release thereof?

No, local governments have fiscal autonomy under Art. X of the 1987 Constitution. As held by the Supreme Court in the case of PROVINCE OF BATANGAS VS. HON. ALBERTO ROMULO, ET AL., May 27, 2004, automatic release of funds of Local Government Units, particularly the IRA, is mandated with no conditions imposed for its release. To allow the President to impose conditions for the release of the IRA amounts to control to local government units when the President‘s power over local government units is confined to general supervision, not power of control as enunciated in Drilon vs. Lim, 235 SCRA 135. 101. What are the requirements for a valid change of residence for purposes of the requirement on “residence” under the Local Government Code? In the case of DUMPIT-MICHELENA VS. COMELEC, it was held that to validly effect a change of residence, there must be animus manendi coupled with animus non revertendi. The intent to remain in the new domicile of choice must be for an indefinite period of time, must be voluntary and the residence at the new domicile must be actual. 102. Is the 3-term limit of elected local officials applicable to a term acquired through succession?

No, the 3-term limit applies only if the official was DULY ELECTED to the said position for three (3) consecutive terms, not by succession. (BENJAMIN BORJA VS. COMELEC, and JOSE T. CAPCO, JR., G.R. No. 133495, September 3, 1998) 102-a. Montebon was elected Municipal Councilor of Tuburan, Cebu during the 1998, 2001 and 2004 elections. He was number councilor in the election of 2004. In 2005, the Vice Mayor died BAR OPERATIONS 2011 Page 27

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and he took over the said position by way of succession in accordance with the Local Government Code. May validly run again for Municipal Councilor during the May, 2007 elections? Yes, because there was ―INVOLUNTARY RENUNCIATION‖ of his 3 rd terms. It was not voluntary which could have resulted in the counting of his election in 2004 as his 3 rd term. He was forced by law to vacate his position as Municipal Councilor. (MONTEBON VS. COMELEC, April 8, 2008) 102-b. Nicasio Bolos, Jr. was elected Barangay Captain of Barangay Biking, Dauis, Bohol during the 1994, 1997 and 2002 Barangay elections. Without having completed his 3rd term, he ran for Municipal Councilor of Dauis, Bohol during the 2004 National and Local Elections and won.

His term ended on June 30, 2007. Is he qualified to run for Barangay Captain of his barangay during the barangay elections of October, 2007? No more because he was elected to three consecutive terms. His non-completion of his 3rd term WAS VOLUNTARY when her run for Municipal Councilor. (BOLOS, JR. VS. COMELEC, March 17, 2009) 103. In the creation of a new province, city, municipality or barangay or when it will be divided, merged or abolished, or its boundary substantially altered, who shall vote in the plebiscite to be conducted? All the residents of the political units affected, i.e., former and new local government unit to be formed, must participate in the plebiscite. (TAN VS. COMELEC, 142 SCRA 727 and Padilla vs. COMELEC, 214 SCRA 735 abandoning the doctrines in PAREDES VS. EXECUTIVE SECRETARY, 128 SCRA 6 and LOPEZ VS. METRO MANILA COMMISSION, 136 SCRA 633) 104. What are the grounds for impeachment?

105. What is the extent of a judgment in impeachment cases?

106. When is an impeachment complaint deemed “initiated” to bar another complaint within a period of one year? As held in FRANCISCO VS. SPEAKER JOSE DE VENECIA, ET AL, 415 SCRA 44, November 10, 2003, an impeachment complaint deemed ―initiated‖ to be a bar to the filing of another complaint within a 1-year period upon its [a] filing; and [b] COUPLED WITH CONGRESS TAKING INITIAL ACTION OF SAID COMPLAINT.‖

107. Who investigates and prosecutes public officials for crimes committed in the performance of their official duties? Exception It is the Office of the Ombudsman and the Office of the Special Prosecutor except if the offense is in violation of election laws, rules and regulations wherein only the COMELEC has the power to investigate and to file the appropriate information in court. (Corpuz vs. Tanodbayan, 149 SCRA 281) 108. What is covered by the “academic freedom” provision of the 1987 Constitution? It covers not only academic freedom on the part of the school but also those of the teachers, professors and the students because the provision states that ―Academic freedom shall be enjoyed in all BAR OPERATIONS 2011 Page 28

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institutions of higher learning‖ while under the 1973 Constitution, only institutions of higher learning enjoy academic freedom because the provision then states that “all institutions of higher learning shall enjoy academic freedom (Art. XV, Section 8 [1], 1973 Constitution.‖ 109. What is the extent of academic freedom on the part of schools? It includes the power to determine: a. who may teach, b. what may be taught, c. how it shall be taught, and d. who may be admitted to study”‘ (Emphasis supplied; citing Sinco, Philippine Political Law, 491, (1962) and the concurring opinion of Justice Frankfurter in Sweezy v. New Hampshire (354 US 234 [1957], GARCIA VS. FACULTY ADMISSION, 68 SCRA 277). 110. Does academic freedom on the part of the school carries with it the power to revoke a degree or honor it has bestowed to its students? Yes. As held in UP BOARD OF REGENTS VS. CA, August 31, 1999, ―academic Freedom includes the power of a University to REVOKE a degree or honor it has conferred to a student after it was found out that the student‘s graduation was obtained through fraud. Academic freedom is given a wide sphere of authority. If an institution of higher learning can decide on who can and cannot study in it, it certainly can also determine on whom it can confer the honor and distinction of being its graduates. 111. May a school punish its students for illegal acts committed outside the school premises and beyond school hours but within the semester where they are enrolled? Yes because they still carry the name of the school and their actuations affect the reputation of the school. ( ANGELES VS. SISON, 112 SCRA 26) This rule was reiterated in the cased of DE LA SALLE UNIVERSITY VS. CA (2008) where a rumble between two fraternities took place outside the school campus but the students involved were EXPELLED by the school.

The Supreme Court, however, while conceding the power of the school over its students held that the penalty of expulsion is too harsh a penalty. It should be EXCLUSION, meaning, they are not allowed to enroll at the De La sale but they should be given transfer credentials so that they may enroll in another school. 112. What are the underlying principles behind the constitutional proscription that the State may not be sued without its consent? By reason of public policy (if every citizen is allowed to sue the government, it will be distracted from performing its functions to serve the people and it will be left just answering cases in court), by reason of sovereignty (the people shall not be allowed to sue the very entity that gives it said right;) and by reason of consent (when the people ratified the Constitution which includes the provision that the State cannot be sued without its consent, it has consented or waived said right to sue). 113. How may the State gives its consent to be sued? Expressly when there is a law allowing it and impliedly when it enters into a contract with an individual because in the latter, it descended to the level of an individual making it susceptible to counterclaims or suits. 114. May the government be sued in the exercise of its governmental functions? Yes if the government agency has a charter which allows it to be sued. (RAYO VS. CFI OF BULACAN, 110 SCRA 456). Also, the government is not allowed to invoke its immunity from suit if by doing so, it will be causing an injustice to its citizens. (MINISTERIO VS. CFI of Cebu, 40 SCRA and SANTIAGO VS. REPUBLIC, 87 SCRA 294) BAR OPERATIONS 2011 Page 29

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115. Is the US Government also immune from suit in the Philippines in connection with the exercise of its governmental functions? Yes. This was the ruling in U.S. VS. RUIZ, 136 SCRA where it was held that even if there is a contract entered into by the US Government but the same involves its “jusre imperii” functions (governmental functions”, it cannot be sued. It is only when the contract involves its “jus gestiones” or business or proprietary functions that it may be sued. 116. Are local governments also entitled to invoke immunity from suit? Yes. 117. May a municipality be held liable for damages as a result of the death of a person arising from the collapse of a stage constructed by the local government in connection with its town fiesta? Yes, a town fiesta is a business or proprietary function, not governmental, since no law requires any town, city, province or barangay to hold an annual fiesta. (TORIO VS. FONTANILLA, 85 SCRA 599) 117. May the government still be held liable to a private individual if the contract it entered into is void but the other party had already complied with his obligations under said agreement? Yes, because the government shall not enrich itself at the expense of its citizens. (DEPARTMENT OF HEALTH VS. C.V. CANCHELA, et al., 475 SCRA 218) Also, the said immunity from suit defense is not applicable if to do so would cause an injustice to a citizen (MINISTERIO VS. CFI OF CEBU, 40 SCRA) It does not also apply if it was the government which violated its contract with its citizen (SANTIAGO VS. REPUBLIC, 87 SCRA 294)

PART II CONSTITUTIONAL LAW 1. Define police power. It is the power vested in the legislature by the Constitution to make, ordain, establish all manner of wholesome and reasonable laws for the good and welfare of the State and its people. (ERMITA MALATE HOTEL VS. CITY MAYOR, July 31, 1967) 2. What are the basic purposes/aspects of police power: a. to promote the general welfare, comfort and convenience of the people; (ASSOCIATION OF SMALL LANDOWNERS VS. SECRETARY, 175 SCRA 343; US VS. TORIBIO, 15 Phil. 85 b. to promote and preserve public health; (VILLANUEVA VS. CASTANEDA, September 21, 1987; DECS VS. SAN DIEGO, 180 SCRA 533 [NMAT]; LORENZO VS. DIRECTOR OF HEALTH, 50 Phil.
595—apprehend and confine lepers in a leprosarium) c. to promote and protect public safety; (AGUSTIN VS. EDU, 88 SCRA 195; TAXICAB OPERATORS VS. JUINIO, 119 SCRA 897 ) d. to maintain and safeguard peace and order; (GUAZON VS. DE VILLA) e. to protect public morals; (DE LA CRUZ VS. PARAS, 123 SCRA 569; ERMITA MALATE HOTEL VS. CITY MAYOR, July 31, 1967; JMM PROMOTIONS VS. CA, 260 SCRA 319; VELASCO VS. VILLEGAS, February 13, 1983) BAR OPERATIONS 2011 Page 30

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f. to promote the economic security of the people. (ICHONG VS. HERNANDEZ, 101 Phil. 11155) 2-a. May an Ordinance of the City of Manila validly require people/couples checking in the different motels in the city to [1] register at the motel’s desk facing a public street; and [2] show their identification card, etc.? A. Yes. It is a valid exercise of police power to promote public morals, i.e., curb prostitution or illicit relationships. ERMITA MALATE HOTEL VS. CITY MAYOR, July 31, 1967) 2-b. May the City of Manila validly prohibit the operation of night clubs, sauna parlors, massage parlors, karaoke bars, beerhouses, and similar establishments in the Ermita-Malate Area and gives the existing establishments three (3) months to transfer to any place outside said area under pain of imprisonment of up to 1 year and fine of P5,000.00 or change the nature of their business to gift shops, restaurants, etc. ? A. The Ordinance is unconstitutional. It violates the due process clause by depriving the owners of said establishments of their legitimate businesses. It likewise violates the equal protection clause. There is no logic in allowing said establishments in other parts of the City of Manila but not in the Ermita-Malate area. Finally, even assuming that the said Ordinance is intended to promote public morals, the means employed is constitutionally infirm and not a valid exercise of police power. (CITY OF MANILA, represented by Mayor Alfredo Lim VS. JUDGE PERFECTO LAGUIO, JR. and MALATE TOURIST DEVELOPMENT CORPORATION, G.R. No. 118127, April 12, 2008) 2-c. May the City of Manila validly prohibit hotels and motels, etc., at the Ermita-Malate area, to offer “short time” admission therein? A. The Ordinance is unconstitutional and is not a valid exercise of police power.

There is nothing immoral in staying in a motel or hotel for a period of three (3) hours only because a person‘s stay therein could be for purposes other than having sex or using illegal drugs. Further, there is nothing that would prevent people engaged in illicit relationships to check in in said motels by paying 12 hours or more though they will just stay there for 3 hours. (WHITE LIGHT CORPORATION VS. CITY OF MANILA, represented by MAYOR ALFREDO LIM, G.R. No. 122846, January 20, 2009.) 3. Distinguish police power with power of eminent domain. The distinctions are: 1. The power of eminent domain is the inherent right of the State to condemn or to take private property for public use upon payment of just compensation while police power is the power of the state to promote public welfare by restraining and regulating the use of liberty and property without compensation; 2. In the exercise of police power, enjoyment of a property is restricted because the continued use thereof would be injurious to public welfare. In such case, there is no compensable taking provided none of the property interests is appropriated for the use or for the benefit of the public. Otherwise, there should be compensable taking if it would result to public use. 3. Properties condemned under police power are usually noxious or intended for noxious purpose; hence , no compensation shall be paid. Likewise, in the exercise of police power, property rights of private individuals are subjected to restraints and burdens in order to secure the general comfort, health and prosperity of the state. (DIDIPIO EARTH SAVERS MULTI PURPOSE ASSOCIATION VS. DENR SEC. ELISEA GOZU, ET AL., 485 SCRA 586) 4. What are the tests for a valid exercise of police power

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a. the interests of the public, not mere particular class, require the exercise of police power; (LAWFUL SUBJECT) b. the means employed is reasonably necessary for the accomplishment of the purpose and not unduly
oppressive to individuals. (LAWFUL MEANS). In short, the end does not justify the means. 5. Define due process. Due process is a law which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial (Per Daniel Webster in the DARTMOUTH COLLEGE CASE) 6. What are the Kinds of Due Process? a. substantive due process—requires the intrinsic validity of the law in interfering with the rights of the person to life, liberty or property. In short, it is to determine whether it has a valid governmental objective like for the interest of the public as against mere particular class. b. Procedural due process—one which hears before it condemns, or the procedure as pointed out by Daniel Webster. 7. What are the requisites of “judicial due process”? As held in BANCO ESPANOL VS. PALANCA, 37 Phil. 921. The requisites are: 1. There must be an impartial court or tribunal clothed with judicial power to hear and decide the matter before it; 2. Jurisdiction must be lawfully acquired over the person of the defendant or over the property subject of the proceedings; 3. The defendant must be given the opportunity to be heard; 4. Judgment must be rendered only after lawful hearing. 8. What are the requisites of due process before administrative bodies? As held in TIBAY VS. CIR, 69 Phil. 635, the requisites are: a. b. c. d. e. f. g. the right to a hearing which includes the right to present evidence; the tribunal must consider the evidence presented; the decision must have something to support itself; the evidence must be substantial; the decision must be based on the evidence presented during the hearing; the tribunal or body must act on its own independent consideration of the law or facts; the board or body shall in all controversial questions, render its decision in such a manner that the parties to the proceedings can know the various issues involved.

9. If an accused was represented by a non-lawyer during the trial of his criminal case, what right of the said accused was violated? Is he entitled to a new trial? If an accused was represented by a non-lawyer during the entire trial (though she thought that he was a lawyer), his right to due process was violated and therefore, he entitled to a new trial. (DELGADO VS. CA, November 10, 1986). However, even if he was not represented by a nonlawyer at the start of the criminal trial, particularly when the prosecution presented its evidence, but was represented by a lawyer when he presented his evidence, there is no violation of his right to due process or right to counsel. (CONSULTA VS. PEOPLE, G.R. No. 179642, February 12, 2009) 10. What are the requisites of procedural due process in disciplinary actions against students? BAR OPERATIONS 2011 Page 32

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As held in GUZMAN VS. NU, 142 SCRA 706, the requisites are: 1. the students must be informed in writing of the nature and cause of any accusation against them; 2. they shall have the right to answer the charges against them, with the assistance of counsel; 3. they shall be informed of the evidence against them; 4. they shall have the right to adduce evidence in their own behalf; 5. the evidence must be duly considered by the investigating committee or official designated by the school authorities to hear and decide the case. 11. What are the requisites of due process before an employee may be dismissed from his work? The requisites of Due Process before the NLRC are: 1. Notice; and 2. Hearing 12. Is due process satisfied in administrative proceedings if the respondent is not assisted by counsel? There is no law, whether the Civil Service Act or the Administrative Code of 1987, which provides that a respondent in an administrative case should be assisted by counsel in order that the proceedings therein is considered valid. Not only, that, petitioner herein was given the opportunity several times to engage the services of a lawyer to assist him but he confidently informed the investigators that he could protect himself. (LUMIQUED VS. EXENEA, 282 SCRA 125) 12-a. Is there a violation of a person’s right to due process before an administrative body like the Civil Service Commission if a party was not allowed to cross-examine the witnesses against him despite his request? No.

The right to due process is not violated even if a party to an administrative case was not allowed to cross-examine the other party or his witnesses. What he is entitled to is the right to be heard. (ATTY. ROMEO ERECE VS. LYN MACALINGAY, ET AL., G.R. No. 166809, April 22, 2008) 12-b. How about in investigations involving disciplinary actions against students, are the latter entitled to cross-examine the complainant and his witnesses? A. No. The right to due process on the part of a student is not violated even if he was not allowed to cross-examine the other party or his witnesses. Due process is served if was given the chance to present his evidence. (DE LA SALLE UNIVERSITY VS. JUDGE WILFREDO REYES, RTC 36, Manila, G.R. No, 127980, December 19, 2007) 13. What are the requisites for a valid classification? As held in People vs. Cayat, 68 Phil. 12, the requisites are: a. b. c. d. There must be real and substantial distinctions; It must be germane tot he purposes of the law; It must not be limited to existing conditions only; and It must apply equally to all members of the same class. Page 33

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14. Is there violation of the equal protection clause if policemen who are charged of a criminal offense punishable for more than six (6) years will remain suspended until after the his acquittal unlike other public officers whose maximum suspension even when facing graft and corrupt charges is only three (3) months? No there is o violation. In HIMAGAN VS. PEOPLE, the Supreme Court held that the fact that policemen charged with a criminal offense punishable by more than 6 years are to be suspended during the entire duration of the case unlike other government employees is valid since it rests on valid classification because policemen carry weapons and the badge of the law which can be used to harass or intimidate witnesses against them. 14-a. Is there a violation of the right to equal protection of the laws of appointed government officials who are deemed automatically resigned upon the filing of their certificate of candidacy while elected officials are not? No, there is real and substantial distinction. Most elected officials have a fixed term under the Constitution and said term could not be shortened by means of a law. (QUINTO VS. COMELEC, February 22, 2010) 14-b. Is there violation of the equal protection clause if policemen and soldiers are given allowances in the General Appropriations Act while other government workers are not since the allowances of all government workers were incorporated already in their salaries under the Compensation and Position Classification Act of 1989? No. There is real and substantial distinction. Policemen and soldiers are in charge of the defense of the country and could be transferred to virtually anywhere in the country. Since their basic pay does not vary on location, the continued grant of COLA to them is intended to help them offset the effects of living in higher cost areas. (GUTIERREZ VS. DEPARTMENT OF BUDGET AND MANAGEMENT, March 18, 2010)

15. What are the requisites of a valid search warrant or warrant of arrest? No search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. (Section 2, Art. III) In addition, Rule 126 of the Rules on Criminal Procedure requires that no warrant shall be issued for more than one (1) specific offense and that in the implementation of a search warrant when the respondent is not present, witnesses are required. Finally, a Circular issued by the Supreme Court requires that no warrant or warrant of arrest shall be implemented during the night, week-ends or holidays, except in exceptional circumstances. 15-a. What are the two (2) kinds of probable cause? The two (2) kinds of probable cause are: a. The executive determination of probable cause by the Prosecutor where he determines whether to file a criminal case in court or not; and b. Judicial determination of probable cause to be done by the judge for the purpose of issuing a warrant of arrest against the accused. (LEVISTE VS. JUDGE ALAMEDA, August 3, 2010) NOTE: Under the Human Security Act/Anti-Terrorism Law, Republic Act No. 9372, Approved on March 6, 2007 and effective on July 15, 2007 BAR OPERATIONS 2011 Page 34

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(This Law shall be automatically suspended one (1) month before and two (2) months after the holding of any election) a person may be taken into custody by the police if there is a written authorization by the AntiTerrorism Council and such detention may be extended upon written approval of the Commission of Human Rights in case of actual or imminent terrorist attack.. Sec. 18. Period of detention without judicial warrant of arrest.- The provisions of Article 125 of the Revised Penal Code, notwithstanding, any police or law enforcement personnel, who, having been duly authorized in writing by the Anti-Terrorism Council has taken custody of a person charged with or suspected of the crime of terrorism or the crime of conspiracy to commit terrorism shall, WITHOUT INCURRING ANY CRIMINAL LIABILITY FOR DELAY IN THE DELIVERY OF DETAINED PERSONS TO THE PROPER JUDICIAL AUTHORITIES, DELIVER SAID CHARGED OR SUSPECTED PERSON TO THE PROPER JUDICIAL AUTHORITY WITHIN A PERIOD OF THREE (3) DAYS counted from the moment said charged or suspected person has been apprehended or arrested, detained, and taken into custody by the said police, or law enforcement personnel: Provided, That the arrest of those suspected of the crime of terrorism or conspiracy to commit terrorism must result from the surveillance under Section 7 and examination of bank deposits under Section 27 pf this Act.

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

The judge shall forthwith submit his report within 3 calendar days from the time the suspect was brought to his/her residence or office. Immediately after taking custody of a person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism, the police or law enforcement personnel shall notify in writing the judge of the court nearest the place of apprehension or arrest; provided, That where the arrest is made during Saturdays, Sundays, holidays or after office hours, the written notice shall be served at the residence of the judge nearest the place where the accused was arrested. The penalty of 10 years and 1 day to 12 years imprisonment shall be imposed upon the police or law enforcement personnel who fails to notify any judge as provided in the preceding paragraph. Section 19. Period of Detention in the event of an actual or imminent terrorist attack.- In the vent of an actual or imminent terrorist attack,, suspects may not be detained for more than three days without the written approval of a municipal, city, provincial or regional official of a Human Rights Commission, or judge of the municipal, regional trial court, the Sandiganbayan or a justice of the Court of Appeals nearest the place of arrest. If the arrest is made during Saturdays, Sundays or holidays, or after office hours, the arresting police of law enforcement personnel shall bring the person thus arrested to the residence of any of the officials mentioned above that is nearest the place where the accused was arrested. The approval in writing of any of the said officials shall be secured by the police or law enforcement personnel concerned within five days after the date of the detention of the persons concerned; Provided, however, That within three BAR OPERATIONS 2011 Page 35

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days after the detention the suspects whose connection with the terror attack or threat is not established, shall be released immediately. 16. In case the place to be searched as indicated in the search warrant is erroneous because it is different from the place mentioned by the applicants who searched the place indicated by them in their affidavit, are the things seized admissible in evidence? No. As held in PEOPLE VS. CA, 291 SCRA 400, WHAT IS MATERIAL IN DETERMINING THE VALIDITY OF A SEARCH IS THE PLACE STATED IN THE WARRANT ITSELF, NOT WHAT THE APPLICANTS HAD IN THEIR THOUGHTS, OR HAD REPRESENTED IN THE PROOFS THEY SUBMITTED TO THE COURT ISSUING THE WARRANT. 17. What are the different instances when a warrantless search and seizure is allowed under our existing jurisprudence? Warrantless search is allowed in the following instances: 1. 2. 3. 4. 5. 6. customs searches; searches of moving vehicle; seizure of evidence in plain view; consented searches; search incidental to a lawful arrest; and stop and frisk measures. (PEOPLE VS. ARUTA, 288 SCRA 626)

18. May a judge deputize his Clerk of Court to take the deposition of the applicant for a search warrant subject to clarificatory questions after his hearing in other cases? No. As held in Bache vs. Ruiz, 37 SCRA 823, the examination of the complainant ant the witnesses he may produce must be done personally by the judge. Otherwise, the warrant shall be void. As such, the SC held in PENDON VS. CA, November 16, 1990 that when the questions asked to the applicant for a search warrant was pre-typed, the same is not valid since there could have been no searching questions. 19. May a search warrant be issued for the crimes of search warrant for estafa, falsification, tax evasion and insurance fraud? No, such would be a ―general warrant‖ and violates the rule that a warrant shall be issued for one (1) specific offense. (Asian Surety vs. Herrera, 54 SCRA 312) 20. What is a “scatter-shot warrant”? It is a search warrant issued for more than one (1) specific offense like a search warrant issued for more than one specific offense like one for estafa, robbery, theft and qualified theft‖.

(TAMBASEN VS. PEOPLE, July 14, 1995; PEOPLE VS. CA, 216 SCRA 101) 21. May a judge validly issue a warrant of arrest based from the Information and the Resolution of the Prosecutor finding probable cause against the accused? No. There will be no basis for the issuance since the Prosecutor is neither the complainant nor the witness to the case. He could not have determined probable cause based from the said documents. (VICENTE LIM,SR. AND MAYOR SUSANA LIM VS.HON. N. FELIX , G.R. NO. 99054-57). As held in the case of Soliven vs. Makasiar, decided under the 1987 Constitution, the Court noted that the addition of the word personally after the word determined and the deletion of the grant of authority by the 1973 Constitution to issue warrants to other respondent officers as to may be authorized by law does not require the judge to personally examine the complainant and his witness in his determination of probable cause for the issuance of a warrant of arrest.What the Constitution underscores is the exclusive BAR OPERATIONS 2011 Page 36

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and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause. Following established doctrine and procedures, he shall: (1) personally evaluate the reports and the supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; (2) If on the basis thereof he finds no probable cause, he may disregard the fiscal’s report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause. The case of People vs. Honorable Enrique B. Inting reiterates the following doctrines: (1) The determination of probable cause is a function of the judge. It is not for the Provincial Fiscal or Prosecutor nor for the Election Supervisor to ascertain. Only the judge alone makes this detemination. (2) The preliminary inquiry made by the prosecutor does not bind the judge. It merely assist him to make the determination of probable cause. The judge does not have to follow what the prosecutor’s present to him. By itself, the prosecutor’s certification of probable cause is ineffectual.

It is the report, the affidavits, the transcripts of stenographic notes, and all other supporting documents behind the prosecutor’s certification which are material in assisting the judge to make his determination. (3) Preliminary inquiry should be distinguished from the preliminary investigation proper. While the former seeks to determine probable cause for the issuance of warrant of arrest, the latter ascertains whether the offender should be held for trial or be released. 22. As to the requirement that the judge must “personally” determine probable cause, must he examine the complainant and his witnesses face to face in order to comply with the said constitutional provision? It depends. In connection with the issuance of a SEARCH WARRANT, he must personally examine the complainant and the witnesses, with searching questions, face to face. In connection with the issuance of a warrant of arrest, however, the word “personally‖ after the word determined does not necessarily mean that the judge should examine the complainant and his witnesses personally or face to face before issuing the warrant of arrest but the exclusive responsibility on the part of said judge to satisfy himself of the existence of probable cause. As such, there is no need to examine the complainant and his witnesses face to face.

It is sufficient if the judge is convinced of the existence of probable cause upon reading the affidavits or deposition of the complainant and his witnesses. SOLIVEN VS. MAKASIAR, 167 SCRA 393 23. Is the judge bound by the findings of existence of “probable cause” by the Prosecutor as indicated in his Certification in the information so that the issuance of a warrant of arrest is only ministerial? If not satisfied of the existence of probable cause, may the judge require the Prosecutor to submit additional evidence? The judge is not bound by the findings of the Prosecutor because the said finding is only ―probable cause‖ that a crime was committed. Probable cause to justify the issuance of a warrant of arrest is a judicial function vested only in the judge. In fact, he can require the Prosecutor to submit additional evidence if he is not convinced of the existence of probable for the issuance of a warrant of arrest. (P. vs. Villanueva, 110 SCRA 465; Placer vs. Villanueva, 126 SCRA 463).

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24. Is “Operation Kapkap” being done by the police because the suspect has something bulging in his waist and keeps on touching his abdomen as if touching a gun valid? As held in PEOPLE VS. MENGOTE, G.R. No. 87059, June, 1992, 210 SCRA 174, ―OPERATION KAPKAP‖ or warrantless search without probable cause is unconstitutional. Such search is valid only if covered by Section 5, Article 113 of the Rules of Court which provides: Sec. 5. Arrest without warrant; when lawful.- A peace officer or private person may, without warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. Compare this case to MANALILI VS. PEOPLE, October 9, 1997.

The policemen saw several suspicious looking men at dawn who ran when they went near them. As the policemen ran after them, an unlicensed firearm was confiscated. The search was declared valid by the Supreme Court. Note, however, that in MALACAT VS. CA, 283 SCRA 159, the SC held that mere suspicions not sufficient to validate warrantless arrest. 25. May the Iloilo Police arrests without warrant or search the person disembarking from a ship without warrant based solely on an information relayed to them by an informant that the suspect‟s bag contains marijuana? No. As held in PEOPLE vs. AMMINUIDIN, 163 SCRA 402 a warrantless arrest of the accused was unconstitutional. This was effected while he was coming down the vessel, to all appearances no less innocent than the other disembarking passengers. He had not committed nor was actually committing or attempting to commit an offense in the presence of the arresting officers. He was not even acting suspiciously. In short, there was no probable cause that, as the prosecution incorrectly suggested, dispensed with the constitutional requirement of a warrant. 26. In arrests without warrant based on the fact that a crime has just been committed, what kind of knowledge is required on the part of the arresting officer? In PEOPLE VS. GALVEZ, 355 SCRA 246, the Supreme Court held that t he policeman arrested the accused-appellant on the basis solely of what Reynaldo Castro had told him and not because he saw the accused-appellant commit the crime charged against him. Indeed, the prosecution admitted that there was no warrant of arrest issued against accused-appellant when the latter was taken into custody.

Considering that the accused-appellant was not committing a crime at the time he was arrested nor did the arresting officer have any personal knowledge of facts indicating that accused-appellant committed a crime, his arrest without a warrant cannot be justified. 27. What is the effect on the illegality of the arrest by the subsequent act of the accused in posting bond for his provisional liberty and entering a plea during his arraignment? By entering a plea of not guilty during the arraignment, the accused-appellant waived his right to raise the issue of illegality of his arrest. IT IS NOW SETTLED THAT OBJECTION TO A WARRANT OF ARREST OR THE PROCEDURE BY WHICH A COURT ACQUIRES JURISDICTION OVER THE PERSON OF AN ACCUSED MUST BE MADE BEFORE HE ENTERS HIS PLEA, OTHERWISE, THE OBJECTION IS DEEMED WAIVED. THE FACT THAT THE ARREST WAS BAR OPERATIONS 2011 Page 38

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ILLEGAL DOES NOT RENDER THE SUBSEQUENT PROCEEDINGS VOID AND DEPRIVE THE STATE OF ITS RIGHT TO CONVICT THE GUILTY WHEN ALL THE FACTS POINT TO THE CULPABILITY OF THE ACCUSED. (PEOPLE VS. GALVEZ, 355 SCRA 246) 28. Is a warrantless search and seizure by a private individual valid? Yes since the constitutional provision is not applicable to him. (PEOPLE OF THE PHILIPPINES VS. ANDRE MARTI, G.R. NO. 81561, January 18, 1991; SILAHIS INTERNATIONAL HOTEL, INC. VS. ROGELIO SOLUTA, ET AL., 482 SCRA 660) 29. What are the requisites of a valid search incidental to a valid arrest? As held in NOLASCO VS. PANO, 139 SCRA 541, a search incidental to a valid arrest must be done at the place where the accused is arrested or its immediate vicinity or on the person of the accused. As such, if accused was arrested while inside a jeepney, there is no valid search incidental to a valid arrest if she will be brought to her residence and thereafter search the said place.

Or as held in ESPANO VS. CA, 288 SCRA 588, if the accused was arrested in the street during a buy-bust operation, the search of his house nearby is not a valid search incidental to a valid arrest. 30. If the accused was validly arrested without warrant inside a night club for illegal possession of firearm, may the arresting officers validly search his car parked several meters from the place of arrest based on “search incidental to a valid arrest”? Where the gun tucked in a person‘s waist is plainly visible to the police, no search warrant is necessary and in the absence of any license for said firearm, he may be arrested at once as he is in effect committing a crime in the presence of the police officers. No warrant is necessary in such a situation, it being one of the recognized exceptions under the Rules. As a consequence of the accused‘s valid warrantless arrest inside the nightclub, he may be lawfully searched for dangerous weapons or anything which may be used as proof of the commission of an offense, without a search warrant in accordance with Section 12, Rule 126. This is a valid search incidental to a lawful arrest. In fact, the subsequent discovery in his car which was parked in a distant place from where the illegal possession of firearm was committed [after he requested that he will bring his car to the Police Station after his warrantless arrest) , of a drug paraphernalia and shabu, CANNOT BE SAID TO HAVE BEEN MADE DURING AN ILLEGAL SEARCH because of his consent, not due to search incidental to a valid arrest. As such, the items do not fall under the exclusionary rule and the unlicensed firearms, drug paraphernalia and the shabu, can be used as evidence against the accused.

(PEOPLE VS. GO, 354 SCRA 338) 31. May the police authorities validly search the rented apartment of a suspect without a search warrant or without the consent of the said person BUT WITH THE CONSENT OF THE OWNER OF THE APARTMENT? No. PEOPLE VS. DAMASO, 212 SCRA 547 abandoned the ruling in Lopez vs. Commissioner. In order that there is a valid consent to a warrantless search, the consent must come from the person directly affected by said warrantless search. 32. What is the “plain view doctrine” in connection with warrantless search and seizure? As held in PEOPLE VS. VALDEZ, 341 SCRA 25, the “plain view” doctrine, which may justify a search without warrant, APPLIES ONLY WHERE THE POLICE OFFICER IS NOT SEARCHING FOR EVIDENCE AGAINS THE ACCUSED, BUT INADVERTENTLY COMES ACROSS AN INCRIMINATING OBJECT. As such, “plain view doctrine could not be used to justify the seizure of an unlicensed firearm in People vs. Damaso, supra, which was seen on top of a table after the opening of the apartment‟s door without a warrant nor consent of the occupant therein. BAR OPERATIONS 2011 Page 39

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33. Define probable cause in connection with the issuance of a search warrant. The “probable cause” for a valid search warrant, has been defined “as such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed, and that the objects sought in connection with the offense are in the place sought to be searched”. (Quintero vs. NBI, June 23, 1988). This probable cause must be shown to be within the personal knowledge of the complainant or the witnesses he may produce and not based on mere hearsay. (P. VS. SY JUCO, 64 PHIL. 667; ALVAREZ VS. CFI, 64 PHIL. 33; US VS. ADDISON, 28 PHIL. 566). 34. What is the “sufficiency test” in connection with applications for a search warrant? “The true test of sufficiency of a deposition or affidavit to warrant issuance of a search warrant is whether it was drawn in a manner that perjury could be charged thereon and the affiant be held liable for damage caused.

The oath required must refer to the truth of the facts within the personal knowledge of the applicant of a search warrant and/or his witnesses, not of the facts merely reported by a person whom one considers to be reliable.” (DR. NEMESIO PRUDENTE VS. THE HON. EXECUTIVE JUDGE ABELARDO M. DAYRIT, RTC 33, Manila & People of the Philippines, GR No. 82870, December 14, 1989) 35. May the police and military authorities validly search the citizens without warrant in checkpoints set up by them? What is the extent of the search that they may conduct? In RICARDO VALMONTE VS. GEN RENATO DE VILLA, GR No. 83988, September 29, 1989, the Supreme Court held that warrantless searches and seizures in military and police checkpoints are not illegal as these measures to protect the government and safeguards the lives of the people. The checkpoints are legal as where the survival of the organized government is on the balance, or where the lives and safety of the people are in grave peril. However, the Supreme Court clarified that the military officers manning the checkpoints may conduct VISUAL SEARCH ONLY, NOT BODILY SEARCH.

36. Is an unlicensed firearm seized in the house of the accused without warrant by the military authorities, after they were given consent by the said owner of the house for them to search for rebel soldiers, admissible in evidence? No. In VEROY VS. LAYAGUE, 210 SCRA 97, the Supreme Court held that the owner of the house allowed the policemen to enter his house because they will be searching for rebel soldiers but when inside the house, they instead seized an unlicensed firearm. As such, there was no consent to search for firearms and as a consequence, the firearm is not admissible as evidence. 37. If the judge finds that there’s probable cause, must he issue a warrant of arrest as a matter of course? It depends: 1. SAMULDE VS. SALVANI, SEPTEMBER 26, 1988 (No because a warrant is issued in order to have jurisdiction of the court over the person of an accused and to assure the court of his presence whenever his case is called in court. As such, if the court believes that the presence of the accused could be had even without a warrant of arrest, then he may not issue said warrant. Note: This case involves a minor offense) 2. GOZO VS. TAC-AN, 300 SCRA 265. If the offense committed is a serious one like that obtaining in this case for murder, the Judge must issue a warrant of arrest after determining the existence of probable cause) 38. If the applicant for a search warrant testifies that his knowledge of the facts and circumstances was derived from a “highly reliable informant”, would such fact sufficient to convince the court of the existence of “probable cause”? BAR OPERATIONS 2011 Page 40

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No, knowledge based on hearsay information does not justify the existence of probable cause. (Prudente vs. Dayrit, supra.) In fact, when the statements in the affidavits of witnesses are mere generalities, mere conclusions of law, and not positive statements of particular acts, the warrant issued by virtue thereof is not valid. Ponsica vs. Ignalaga, July 31,1987) 39. In the seizure of alleged pirated tapes, what must the applicant submit to the court in order that the search warrant to be issued shall be valid? In Century Fox vs. CA, 164 SCRA 655 and COLUMBIA PICTURES VS. CA, 261 SCRA 144, it was held that the master copy of the allegedly pirated tape should be presented before the judge in order to convince him of the existence of probable cause) 40. What is the effect on the evidence obtained in violation of Sections 2 and 3 of Article III? Any evidence obtained in violation of Sections 2 and 3 of Article III shall be inadmissible for any purpose in any proceeding. 41. Under the Human Security Act/Anti-Terrorism Law, Republic Act No. 9372, Approved on March 6, 2007 and effective on July 15, 2007, may police authorities the listen to, intercept and record, with the use of any mode, form or kind or type of electronic or other surveillance equipment or intercepting and tracking devices, or with the use of any other suitable ways or means for that purpose, any communication, message, conversation, discussion, or spoken or written words of a person without violating the right to privacy? Yes under Sections 7 and 8 of the law which provides: Section 7. Surveillance of suspects and interception and recording of communications.

The provisions of RA 4200 (Anti-Wiretapping Law) to the contrary notwithstanding, a police or law enforcement official and the members of his team may, upon a written order of the Court of Appeals, listen to, intercept and record, with the use of any mode, form or kind or type of electronic or other surveillance equipment or intercepting and tracking devices, or with the use of any other suitable ways or means for that purpose, any communication, message, conversation, discussion, or spoken or written words between members of a judicially declared and outlawed terrorist organization, association, or group of persons or of any person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism. Provided, That surveillance, interception and recording of communications between lawyers and clients, doctors and patients, journalists and their sources and confidential business correspondence shall not be authorized. Section 8. Formal Application for Judicial Authorization.- The written order of the authorizing division of the Court of Appeals to track down, tap, listen, intercept, and record communications, messages, conversations, discussions, or spoken or written words of any person suspected of the crime of terrorism or the crime of conspiracy to commit terrorism, shall only be granted by the authorizing division of the Court of Appeals UPON AN EX-PARTE written application of a police or law enforcement official who has been duly authorized in writing by the Anti-Terrorism Council created in Section 53 of this Act to file such ex-parte application, and upon examination under oath and affirmation of the applicant and the witnesses who may produce to establish: That there is probable cause to believe based on personal knowledge of facts and circumstances that the said crime of terrorism or conspiracy to commit terrorism has been committed, or is being committed, or is about to be committed; BAR OPERATIONS 2011 Page 41

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That there is probable cause to believe based on personal knowledge of facts and circumstances that evidence which is essential to the conviction of any charged or suspected person for, or to the solution or prevention of any such crimes, will be obtained; and That there is no other effective means readily available for acquiring such evidence. Sec. 9. Classification and Contents of the Order of the Court. The written order granted by the authorizing division of the Court of Appeals as well as its order, if any, to extend or renew the same, the original application of the applicant, including his application to extend or renew, if any, and the written authorizations of the AntiTerrorism Council shall be deemed and are hereby declared as classified information: Provided, That the person being surveilled or whose communications, letters, papers, messages, conversations, discussions, spoken or written words and effects have been monitored, listened to, bugged or recorded by law enforcement authorities has the right to be informed of the acts done by the law enforcement authorities in the premises or to challenge, if he or she intends to do so, the legality of the interference before the Court of Appeals which issued said written order.

The written order of the authorizing division of the court of Appeals shall specify the following: The identity, such as name and address, if known, of the charged of suspected persons whose communications, messages, conversations, discussions, or spoken or written words are to be tracked down, tapped, listened to, intercepted or recorded and, in case of radio, electronic, or telephone (whether wireless or otherwise) communications, messages, conversations, discussions, or spoken or written words, the electronic transmission systems or the telephone numbers to be tracked down, tapped, listened to, intercepted, and recorded and their locations if the person suspected of the crime of terrorism or conspiracy to commit terrorism is not fully known, such person shall be subject to continuous surveillance provided there is reasonable ground to do so; The identity (name and address, and the police or law enforcement organization) of the members of his team judicially authorized to track down, tap, listen to, intercept, and record the communications, messages, conversations, discussions, or spoken or written words;

The offense or offenses committed, or being committed, or sought to be prevented; and The length of time which the authorization shall be used or carried out. Section. 10. Effective Period of Judicial Authorization. Any authorization granted by the authorizing division of the court of Appeals…shall only be effective for the length of time specified in the written order of the authorizing division of the Court of Appeals, which shall not exceed 30 days from the date of receipt of the written order of the authorizing division of the court of Appeals by the applicant police or law enforcement official. The CA may extend or renew the said authorization for another non-extendible period, which shall not exceed 30 days from the expiration of the original period…The ex-parte application for renewal has been duly authorized by the Anti-terrorism Council in writing. 42. Under the Human Security Act/Anti-Terrorism Law, Republic Act No. 9372, Approved on March 6, 2007 and effective on July 15, 2007, may police authorities examine the bank accounts of individuals without violating their right to privacy? Yes under Sections 27 and 28 of the said law. It provides: BAR OPERATIONS 2011 Page 42

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Section 27. Judicial authorization required to examine bank deposits, accounts and records. The justices of CA designated as special court to handle anti-terrorism cases after satisfying themselves of the existence of probable cause in a hearing called for that purpose that: A person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism; Of a judicially declared and outlawed terrorist organization or group of persons; Of a member of such judicially declared and outlawed organization, association or group of persons, may authorize in writing any police or law enforcement officer and the members of his team duly authorized in writing by the anti-terrorism council to: 1. examine or cause the examination of, the deposits, placements, trust accounts, assets, and records in a bank or financial institution; and 2. gather or cause the gathering of any relevant information about such deposits, placements, trust accounts, assets, and records from a bank or financial institution. The bank or financial institution shall not refuse to allow such examination or to provide the desired information, when so ordered by and served with the written order of the Court of Appeals. Sec. 28. Application to examine deposits, accounts and records.

The written order of the CA authorizing the examination of bank deposits, placements, trust accounts, assets and records: A person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism; Of a judicially declared and outlawed terrorist organization or group of persons; Of a member of such judicially declared and outlawed organization, association or group of persons, in a bank or financial institution-SHALL ONLY BE GRANTED BY THE AUTHORIZING DIVISION OF THE CA UPON AN EX-PARTE APPLICATION TO THAT EFFECT OF A POLICE OR LAW ENFORCEMENT OFFICIAL who has been duly authorized by the Anti-Terrorism Council to file such ex-parte application and upon examination under oath or affirmation of the applicant and his witnesses he may produce to establish the facts that will justify the need and urgency of examining and freezing the bank deposits, placements, trust accounts, assets and records:

Of A person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism; Of a judicially declared and outlawed terrorist organization or group of persons; Of a member of such judicially declared and outlawed organization, association or group of persons. 43. May a wife validly seize the diaries, checks and greeting cards of the alleged paramours of her husband in the latter’s clinic and use the same as evidence in a legal separation case between them? As held in ZULUETA VS. CA, February 10, 1996, the evidence obtained by the wife who forcibly opened the drawers at the clinic of her doctor-husband and took diaries, checks and greeting cards of his alleged paramours is inadmissible as evidence. This is so because the intimacies of husband and wife does not justify the breaking of cabinets to determine marital infidelity. 43. Is the freedom of speech and expression affected by the Human Security Act? Yes, under Section 26 of the law, it provides that persons who have been charged with terrorism or conspiracy to commit terrorism—even if they have been granted bail because evidence of guilt is not BAR OPERATIONS 2011 Page 43

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strong—can be: ―Prohibited from using any cellular phones, computers, or other means of communications with people outside their residence.‖ 44. What is the rule on criticisms on the acts of public officers? A public official should not be too onion-skinned with reference to comments upon his official acts. The interest of the government and the society demands full discussion of public affairs. (US vs. Bustos, 37 Phil. 731) 45. May the above rule applicable to private individuals who are public figures or private individuals who are candidates for public office? As held by the Supreme Court in the case of BAGUIO MIDLAND COURIER & CECILLE AFABLE VS. COURT OF APPEALS & RAMON LABO, JR., 444 SCRA 28 [November 25, 2004 , the article involving a private individual running for Mayor of Baguio City is still within the mantle of protection guaranteed by the freedom of expression provided in the Constitution since it is the public‘s right to be informed of the mental, moral and physical fitness of candidates for public office.

This was recognized as early as the case of US VS. SEDANO, 14 Phil. 338 [1909] and the case of NEW YORK TIMES VS. SULLIVAN, 376 U.S. 254 where the US Supreme Court held: “…it is of the utmost consequence that the people should discuss the character and qualifications of candidates for their suffrages. The importance to the State and to society of such discussions is so vast, and the advantages derived so great, that they more than counterbalance the inconvenience of private persons whose conduct may be involved, and occasional injury to the reputations of individuals must yield to the public welfare, although at times such injury may be great. The public benefit from publicity is so great and the chance of injury to private character so small, that such discussion must be privileged. “ Clearly, the questioned articles constitute fair comment on a matter of public interest as it dealt with the character of the private respondent who was running for the top elective post in Baguio City at that time. 46. May the COMELEC validly prohibit columnists, radio announcers and TV commentator for commenting for or against any issue during the plebiscite period since they can air their views in a program sponsored by the COMELEC itself? No, such would be an undue interference on the freedom of expression.

IT IS STILL A RESTRICTION ON THE COLUMNIST, ANNOUNCER OR COMMENTATOR‘S CHOICE OF THE FORUM WHERE HE MAY EXPRESS HIS VIEW. Plebiscite issues are matters of public concern and importance. The people’s right to be informed and to be able to freely and intelligently make a decision would be better served by access to an unabridged discussion of the issues, INCLUDING THE FORUM. The people affected by the issues presented in a plebiscite should not be unduly burdened by restrictions on the forum where the right to expression may be exercised. (PABLITO V. SANIDAD VS. COMELEC, G.R. NO. 90878, January 29, 1990) 47. What are the requisites that a newspaper must comply in order that its news item on an ongoing trial in court will not be actionable for being libelous? In Elizalde vs. Gutierrez,76 SCRA 448, it was held that in order that any news item relating to a judicial proceeding will not be actionable, the same must be [a] a true and fair report of the actual

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proceedings; [b] must be done in good faith; and [c] no comments nor remarks shall be made by the writer} 48. What are the tests of obscenity? The three (3) tests as held in Miller vs. California, 37 L. Ed. 2d 419 are: 1. Whether the average person applying to contemporary community standards would find the work appeals to prurient interest; 2. Whether the work depicts or describes a patently offensive sexual conduct; 3. Whether the work as a whole lacks serious literary , artistic, political or scientific value. 49. May the City Mayor order the confiscation without a search warrant magazines which he believes to be obscene? What is the correct procedure for him to follow? No. (Pita vs. CA, 178 SCRA 362). A City Mayor may not order the warrantless seizure of magazines which he believes to be obscene; otherwise, he will become the complainant, prosecutor and judge at the same time. He should obtain a search warrant from a judge by following the procedure laid down by the Rules on how to secure a search warrant. 50. May public school teachers validly file mass leaves, instead of going on strike, after their demand to the government was not met” In GESITE et al. vs. COURT OF APPEALS, 444 SCRA 51 held that ―these mass actions were to all intents and purposes a strike; they constituted a concerted and unauthorized stoppage of, or absence from, work which it was the teachers‘ duty to perform, undertaken for essentially economic reasons.‖

It is undisputed fact that there was a work stoppage and that petitioners‘ purpose was to realize their demands by withholding their services. The fact that the conventional term ―strike‖ was not used by the striking employees to describe their common course of action is inconsequential, SINCE THE SUBSTANCE OF THE SITUATION, AND NOT ITS APPEARANCE, WILL BE DEEMED CONTROLLING. The right of government employees to organize IS LIMITED TO THE FORMATIONS OF UNIONS OR ASSOCIATIONS ONLY, WITHOUT INCLUDING THE RIGHT TO STRIKE. (Bangalisan vs. CA, 276 SCRA 619) 51. What is the procedure to be followed in the application of rally permits before the City or Municipal Mayor in accordance with BP Bilang 880? The applicants for a permit to hold an assembly should inform the licensing authority of the date, the public place where and the time when it will take place. If it were a private place, only the consent of the owner or the one entitled to its legal possession is required.

Such application should be filed well ahead in time to enable the public official concerned to appraise whether there may be valid objections to the grant of the permit or to its grant but at another public place. It is an indispensable condition to such refusal or modification that the clear and present danger test be the standard for the decision reached. If he is of the view that there is such an imminent and grave danger of a substantive evil, the applicants must be heard on the matter. Thereafter, his decision, whether favorable or adverse, must be transmitted to them at the earliest opportunity. Thus if so minded, they can have recourse to the proper judicial authority. (BAYAN, KARAPATAN, KILUSANG MAGBUBUKID NG PILIPINAS (KMP), and GABRIELA vs. EDUARDO ERMITA, in his capacity as Executive Secretary, Manila City Mayor LITO ATIENZA, Chief of the Philippine National Police, Gen. ARTURO M. LOMIBAO, NCRPO Chief Maj. Gen. VIDAL QUEROL, and Western Police District Chief Gen. PEDRO BULAONG, G.R. No. 169848, May, 2006)

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52. Is BP 880 unconstitutional for being vague (Void for Vagueness Doctrine) and overbroad (Overbreadth Doctrine)? No. It is very clear that it deals only on public assemblies that deals with rallies, mass actions and similar acts and not all kinds of public assemblies. As such, it is not vague. Neither is the law overbroad. It regulates the exercise of the right to peaceful assembly and petition only to the extent needed to avoid a clear and present danger of the substantive evils Congress has the right to prevent. 53. Is the Calibrated Pre-emptive Response (CPR) of the Arroyo Administration towards rallyists constitutional? The Court reiterates its basic policy of upholding the fundamental rights of our people, especially freedom of expression and freedom of assembly. For this reason, the so-called calibrated preemptive response policy, the policy of dispersing rallyists through water cannons, has no place in our legal firmament and must be struck down as a darkness that shrouds freedom. It merely confuses our people and is used by some police agents to justify abuses.

On the other hand, B.P. No. 880 cannot be condemned as unconstitutional; it does not curtail or unduly restrict freedoms; it merely regulates the use of public places as to the time, place and manner of assemblies. Far from being insidious, ―maximum tolerance‖ is for the benefit of rallyists, not the government. The delegation to the mayors of the power to issue rally ―permits‖ is valid because it is subject to the constitutionally-sound ―clear and present danger‖ standard. (BAYAN, KARAPATAN, KILUSANG MAGBUBUKID NG PILIPINAS (KMP), and GABRIELA vs. EDUARDO ERMITA, in his capacity as Executive Secretary, Manila City Mayor LITO ATIENZA, Chief of the Philippine National Police, Gen. ARTURO M. LOMIBAO, NCRPO Chief Maj. Gen. VIDAL QUEROL, and Western Police District Chief Gen. PEDRO BULAONG, G.R. No. 169848, May, 2006) 54. May the MTRCB suspend for three (3) months the airing of the program Ang Dating Daan of Brother Eliseo Soriano as a result of vulgar and uncouth language he uttered against the host of the program Ang Tamang Daan of the Iglesia Ni Kristo? A. Yes as “subsequent punishment”.

In fact, it is a valid “prior restraint” measure on the part of the MTRCB (SORIANO VS. LAGUARDIA, April 29, 2009) [Dissenting Opinion: The suspension of the program is illegal. It constitutes “prior restraint”. He is prevented from hosting the program during the succeeding days even if he will just say the “Lord‟s Prayer” or to greet “good morning” to his viewers. Per Justice Antonio Carpio] 54-a. May the City of Cauayan, Isabela, validly close the Bombo Radio Stations therein on the ground that their building was constructed on an “agricultural land” [that is why the City did not issue business permit for it to operate] which has not been converted to “commercial land” by the DAR despite the fact that it has been there for so many years and was questioned only when the said station was critical of the Dy’s in Isabela who own the only other radio station therein? A. The act of the City of Cauayan, Isabela constitutes prior restraint. It shall pay P10M in damages for the losses suffered by Bombo Radyo as a result of the illegal closure. (NEWSOUNDS BROADCASTING NETWORK INC. and CONSOLIDATED BROADCASTING SYSTEM, INC. vs. HON. CEASAR G. DY, FELICISIMO G. MEER, BAGNOS MAXIMO, RACMA FERNANDEZ-GARCIA and THE CITY OF CAUAYAN, G.R. Nos. 170270 &179411, April 2, 2009) 54-b. Distinguish “clear and present danger”, “dangerous tendency rule” and “balancing of interest test”.

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Clear and present danger and dangerous tendency rule (whether the words used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that the State has the right to prevent) Dangerous tendency rule (If the words uttered create a dangerous tendency which the State has the right to prevent, then such words are punishable) The balancing-of-interest test (When a particular conduct is regulated in the interest of the public order, and the regulation results in an indirect, conditional, partial abridgment of speech, the duty of the courts is to determine which of the 2 conflicting interests demand greater protection under the circumstances presented.) 55. May Senator Juan Ponce Enrile prevent the movie producer of the EDSA I Revolution movie from including his participation during the uprising since it violates his right to privacy? No, as between Enrile‘s right to privacy and the freedom of expression on the part of the movie producer, the latter‘s right prevail because Enrile‘s part in the movie deals solely on his acts as a public officer then. To exclude him as integral part of the revolution would be a distortion of history. (AYER PRODUCTION VS. JUDGE CAPULONG, JUAN PONCE ENRILE, ET AL., 160 SCRA 861)

56. May the mother of a murdered Mayor stop the filming of the life story of her son which would include his alleged love affairs which would blacken his memory? Yes. As between the right to privacy invoked by the mother and the freedom of expression invoked by the movie producer, the state shall balance their respective interests. Since the movie producer is primarily after profits only, the right to privacy shall prevail. (Lagunzad vs. Gonzales). 57. What are the two (2) aspects of the RIGHT TO RELIGIOUS PROFESSION AND WORSHIP ? Distinguish each. a. Freedom to believe; and b. Freedom to act. IN the first, such freedom is absolute. He may indulge in his own theories about life and death; worship any god he chooses, or none at all. He may not be punished even if he cannot prove what he believes. In the second, if the individual externalizes what he believes, his freedom to do so becomes subject to the authority of the State. This is so because religious freedom can be exercised only with due regard to the rights of others.

Example: ―Go forth and multiply—cannot marry several times just to comply. 58. May a Jehovah’s Witnesses Member who is the Court Interpreter of RTC Branch 253, Las Pinas City, be held liable for “grossly immoral conduct” for living with a married man while her very own marriage was still subsisting? No. As held in ESTRADA VS. SOLEDAD ESCRITOR, 492 SCRA 1 (Resolution of the Motion for Reconsideration), 408 SCRA 1, the Supreme Court held that she is not liable for grossly immoral conduct because: She is a member of the Jehovah‘s Witnesses and the Watch Tower Society; That the conjugal arrangement was in conformity with their religious beliefs; That the conjugal arrangement with Quilapio has the approval of her congregation. Escritor likewise claimed that she had executed a ―DECLARATION OF PLEDGING FAITHFULNESS‖ in accordance with her religion which allows members of the Jehovah‘s witnesses who have been abandoned by their spouses to enter into marital relations. The BAR OPERATIONS 2011 Page 47

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Declaration thus makes the resulting union moral and binding within the congregation all over the world except in countries where divorce is allowed. Escritor‘s conjugal arrangement cannot be penalized as she has made out a case for exemption from the law based on her fundamental right to religion. However, this mode of living with another other than his or her spouse by a married person does not apply in places where divorce is allowed. 59. May children of Jehovah’s Witnesses in public schools be forced to sing the National Anthem; recite the Patriotic Pledge; and Salute the Flag under pain of being expelled for noncompliance? No since such is in violation of their religious beliefs. (ROEL EBRALINAG, ET AL VS. THE DIVISION SUPERINTENDENT OF SCHOOLS OF CEBU, March 1, 1993). Religious freedom is superior to the statute requiring the pupils to sing the National Anthem; recite the Patriotic Pledge; and Salute the Flag.

The doctrine laid down in Gerona vs. Secretary of Education was reversed. 60. How may the right to travel be impaired? The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law. 61. Is the right to travel affected by the Human Security Act? Yes, Section 26 provides that persons who have been charged with terrorism or conspiracy to commit terrorism—even if they have been granted bail because evidence of guilt is not strong—can be: Detained under house arrest; Restricted from traveling; and/or Upon application of the prosecutor, the suspect‘s right to travel shall be limited to the municipality or city where he resides or where the case is pending, in the interest of national security and public safety.

Travel outside of said municipality or city, without the authorization of the court, shall be deemed a violation of the terms and conditions of the bail which shall then be forfeited as provided in the Rules of Court. These restrictions shall be terminated upon acquittal of the accused; or the dismissal of the case filed against him; or earlier upon the discretion of the court or upon motion of the prosecutor. 62. May Former President Marcos validly compel the government to issue him his travel papers in order that he could return to the Philippines from his US exile in accordance with his constitutional right to travel? No. (FERDINAND MARCOS, ET AL. VS. HON. RAUL MANGLAPUS, ET AL., G.R. NO. 88211, September 15, 1989 and the Resolution of the Motion for Reconsideration dated October 27, 1989). What is provided by the Philippine Constitution is the right to travel and not the right to return. These two (2) rights are different under the Universal Declaration of Human Rights and International Covenant on Civil and Political Rights. THE RIGHT TO RETURN TO ONE’S COUNTRY IS NOT AMONG THE RIGHTS SPECIFICALLY GUARANTEED BY THE BILL OF RIGHTS, WHICH TREATS ONLY OF THE LIBERTY OF ABODE AND THE RIGHT TO TRAVEL, BUT IT IS OUR WELL-CONSIDERED VIEW THAT THE RIGHT TO RETURN MAY BE CONSIDERED AS A GENERALLY ACCEPTED PRINCIPLE OF INTERNATIONAL LAW, UNDER OUR CONSTITUTION, IS PART OF THE LAW OF THE LAND. 63. What is the “residual power” of the President?

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It is the power of the President in balancing the general welfare and the common good against the exercise of rights of certain individuals. The power involved is the President’s RESIDUAL POWER to protect the general welfare of the people. 64. May a person out on bail be validly allowed to travel abroad? Yes, subject to the following requisites ( Manotoc vs. CA, 142 SCRA 149): He must however [1] convince the courts of the urgency of his travel, [2] the duration thereof, and [3] that his sureties are willing to undertake the responsibility of allowing him to travel. 65. Is the right to information on matters of public concern absolute? No. While the right of the people to information on matters of public concern shall be recognized and access to official records…shall be afforded the citizen, it must be subject to such limitations as may be provided by law as well as reasonable conditions imposed by public officials in custody of said records like the payment of the expenses of reproduction of public documents; the request must be done during office hours, etc.

66. May the COMELEC be compelled to publish the names of the nominees of the different party-list groups for the May 14, 2007 elections despite the prohibition on such publication as embodied by the Party-List Act? YES, the COMELEC must publish the same despite the prohibition in the law. Such prohibition violates the right to information on matters of public concern on the part of the citizen. (BANTAY REPUBLIC VS. COMELEC, MAY 4, 2007) 67. May the President validly prohibit members of her Cabinet as well as other officers in the executive department from attending investigations in aid of legislation by Congress? No. Such would violate the right of the people to information on matters of public concern. It is only through said investigations that the people will be informed of the workings of the different departments of the government. (SENATE OF THE PHILIPPINES, represented by SENATE PRESIDENT FRANKLIN DRILON, ET AL., VS. EXEC. SEC. EDUARDO ERMITA, ET AL., G.R. No. 16977, April 20, 2006 ) 68. May a Barangay validly exercise the power of eminent domain? Yes, subject to the approval by the President.( Barangay Matictic vs. Elbinias, 148 SCRA 83) 69. What are the requisites before an expropriator may validly obtain a writ of possession to take over possession of the expropriated property?

It depends: 1. If the expropriation is for a ―National government projects‖ or ―national infrastructure projects‖, like those covered by the ―Build-Operate-Transfer‖, RA 8974 shall be followed. This means that there must be a [a] Complaint for expropriation which is sufficient in form and in substance; and [2] the 100% of the market value of the property sought to be expropriated must first be paid to the owner of the property. (REPUBLIC OF THE PHILIPPINES VS. JUDGE GINGOYON, 478 SCRA 474) 2. In ordinary expropriation cases, the rule is that in the case of BIGLANG-AWA VS. JUDGE BACALLA, 354 SCRA 562. It provides: PURSUANT TO SECTION 2, RULE 67 OF THE 1997 RULES OF CIVIL PROCEDURE AND THE DOCTRINE LAID DOWN IN THE ROBERN DEVELOPMENT CASE, THE ONLY BAR OPERATIONS 2011 Page 49

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REQUISITES FOR THE IMMEDIATE ENTRY BY THE GOVERNMENT IN EXPROPRIATION CASES ARE: the filing of a complaint for expropriation sufficient in form and substance; and the making of a deposit equivalent to the ASSESSED VALUE OF THE PROPERTY SUBJECT TO EXPROPRIATION. 3. If the expropriation is being done by a Local Government Unit, the Supreme Court decision in the case of THE CITY OF ILOILO VS. JUDGE LEGASPI, RTC 22, ILOILO CITY, 444 SCRA 269, shall be complied with: 1. the complaint for expropriation filed in court is sufficient in form and substance; and 2. the expropriator must deposit the amount equivalent to 15% of the fair market value of the property to be expropriated based on its current tax declaration. 70. Who determines the just compensation in expropriation cases? What are the factors to be considered in determining the same? Determination of just compensation is a judicial function with the assistance or recommendation of the court-appointed commissioners. (Manotok vs. CA, May 21,1987)

The factors to be considered in determining the just compensation/market value are: 1. cost of acquisition; 2. the current value of like proerties; 3. its actual or potential uses; 4. particular case of lands; 5. their size, shape, location; and 6. the tax declarations thereon. Finally, note that as held in the case of Republic vs. Santos, 141 SCRA 30, the market value as recommended by the board of commissioners appointed by the court were at best only ADVISORY AND PERSUASIVE AND BY NO MEANS FINAL OR BINDING. (BERKENKOTTER, INC. VS. COURT OF APPEALS AND REPUBLIC OF THE PHILIPPINES, December 14, 1992). 71. What are the requisites of “taking” in expropriation cases? The Requisites of taking are: a. b. c. d. e. the expropriator must enter the property; the entrance must not be for just a momentary period; the entry must be under warrant of color or title; the property must be devoted for public use; and the owner must be ousted from beneficial use of his land. (Rep. vs. Castellvi, 58 SCRA 336)

72. May a private property already used as a private cemetery be expropriated for a public purpose? No, a private property which is already devoted to public use may not be expropriated for another public purpose. (City of Manila vs. Chinese Community, 40 Phil. 349). 73. What are the rights of a person under custodial investigation under the “Mahinay Doctrine” or the “Expanded Miranda Doctrine”? BAR OPERATIONS 2011 Page 50

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The rights are: 1. The person arrested, detained, invited or 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 a copy of the warrant of arrest, if any; Every other warnings, information or communication must be in a language known to and understood by said person; 2. He must be warned that he has the right to remain silent and that any statement he makes may be used as evidence against him; 3. He must be informed that he has the right to be assisted at all times and have the presence of an independent and competent lawyer, preferably of his own choice; 4. He must be informed that if he has no lawyer or cannot afford the services of a lawyer, one will be provided for him; and that a lawyer may also be engaged by any person in his behalf, or may be appointed by the court upon petition of the person arrested or one acting in his behalf;

5. That whether or not the person arrested has a lawyer, , he must be informed that no custodial investigation in any form shall be conducted except in the presence of his counsel or after a valid waiver has been made; 6. The person arrested must be informed that, at any time, he has the right to communicate or confer by the most expedient means—telephone, radio, letter or messenger—with his lawyer (either retained or appointed), any member of his immediate family; or any medical doctor, priest or minister chosen by him or by any one from his immediate family or by his counsel, or be visited by/confer with duly accredited national or international non-governmental organization. IT SHALL BE THE RESPONSIBILITY OF THE OFFICER TO ENSURE THAT THIS IS ACCOMPLISHED; 7. He must be informed that he has the right to waive any of said rights provided it is made voluntarily, knowingly and intelligently and ensure that he understood the same;

8. In addition, if the person arrested waives his right to a lawyer, he must be informed that it must be done in writing AND in the presence of counsel, otherwise, he must be warned that the waiver is void even if he insist on his waiver and chooses to speak; 9. That the person arrested must be informed that he may indicate in any manner at any time or state of the process that he does not wish to be questioned with the warning that once he makes such indication, the police may not interrogate him if the same had not yet commenced, or the interrogation has begun;

10. The person arrested must be informed that his initial waiver of his right to remain silent, the right to counsel or any of his rights does not bar him from invoking it at any other time during the process, regardless of whether he may have answered some questions or volunteered some information or statements; 11. He must be informed that any statement OR EVIDENCE, as the case may be, obtained in violation of any of the foregoing, whether inculpatory or exculpatory, in whole or in part, SHALL BE INADMISSIBLE IN EVIDENCE. 74. What are the rights of a person under “custodial detention” for one suspected or arrested as a terrorist under the Human Security Act? The rights are embodied under Section 21 thereof which states: BAR OPERATIONS 2011 Page 51

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Section 21. Rights of a person under custodial detention.- The moment a person charged with or suspected of the crime of terrorism or the crime of conspiracy to commit terrorism is apprehended or arrested and detained, he shall forthwith be informed by the arresting police or law enforcement officers to whose custody the person concerned is brought, of his or her right: 1. to be informed of the nature and cause of his arrest, to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel of his or her choice, the police or law enforcement officers concerned shall immediately contact the free legal assistance unit of the IBP or the Public attorney‘s office (PAO). It shall be the duty of the free legal assistance unit of the IBP or the PAO‘s thus contacted to immediately visit the person detained and provide him with legal assistance. These rights cannot be waived except in writing and in the presence of the counsel of choice;

2. informed of the cause or causes of his detention in the presence of his legal counsel; 3. allowed to communicate freely with his legal counsel and to confer with them at any time without restriction; 4. allowed to communicate freely and privately without restrictions with the members of his family or with his nearest relatives and be visited by them; and 5. allowed freely to avail of the services of a physician or physicians of choice. 75. Are the above rights available to a suspect if he is under investigation by a private person? No. (THE PEOPLE OF THE PHILIPPINES VS. JOSE TING LAN UY, JR., et al., 475 SCRA 248). The claim that his affidavit is inadmissible in evidence in accordance with section 12 [1] of the Bill of Rights is not tenable. The ―investigation‖ under said provision refers to ―custodial investigation where a suspect has already been taken into police custody and that the investigating officers begin to ask questions to elicit information and confessions or admissions from the suspect. Succinctly stated, custodial investigation refers to the critical pre-trial stage when the investigation ceases to be a general inquiry into an unsolved crime but has began to focus on a particular person as a suspect (People vs. Duenas, Jr., 426 SCRA 666). Clearly, therefore, the rights enumerated by the accused are not available BEFORE GOVERNMENT INVESTIGATORS ENTER THE PICTURE. The protective mantle of section 12, article III does not apply to administrative investigations (People vs. Judge Ayson, 175 SCRA 216); confession to a private individual (Kimpo vs. CA, 232 SCRA 53); verbal admission made to a radio announcer who was not a part of the investigation (People vs. Ordono, 334 SCRA 673); or even to a Mayor approached as a personal confidante and not in his official capacity (People vs. Zuela, 323 SCRA 589).

In fact, even a videotaped interview where the accused willingly admit his guilt in the presence of newsmen is not covered by the said provision though the trial courts were warned by the supreme Court to take extreme caution in admitting similar confessions because of the distinct possibility that the police, with the connivance of unscrupulous media practitioners, may attempt to legitimize coerced extrajudicial confessions and place them beyond the exclusionary rule by having an accused admit an offense on television (People vs. Endino, 353 SCRA 307). 76. When is custodial investigation deemed to have started so as to entitle the suspect to be informed of his rights under the “Mahinay Doctrine” or the “Expanded Miranda Doctrine”? Custodial investigation begins when it is no longer a general inquiry into an unsolved crime but starts to focus on a particular person as a suspect, i.e., when the police investigator starts interrogating or exacting confession from the suspect in connection with an alleged offense.

THE PLACE OF INTERROGATION IS NOT DETERMINATIVE OF THE EXISTENCE OR ABSENCE OF CUSTODIAL INVESTIGATION BUT THE TONE AND MANNER OF QUESTIONING BY THE POLICE AUTHORITIES. Thus, there was custodial investigation when the police authorities, upon their arrest of some of the accused, immediately asked them regarding their participation in the commission of the crime , even while they were still walking along the highway on their way to the police station. (PEOPLE VS. BARIQUIT, 341 SCRA 600) BAR OPERATIONS 2011 Page 52

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77. Are spontaneous admissions made before a person could be informed of his rights during custodial investigation admissible as evidence? Yes. Spontaneous statements voluntarily given, as where appellant orally admitted killing the victim before the barangay captain (who is neither a police officer nor a law enforcement agent), do not fall under custodial investigation. Such admission, even without the assistance of a lawyer, does not violate appellant‟s constitutional rights

AND THEREFORE ADMISSIBLE IN EVIDENCE. (PEOPLE VS. DANO, G.R. NO. 117690, 339 SCRA 515, SEPT. 1, 2000; PEOPLE VS. MAYORGA, G.R. NO. 135405, 346 SCRA 458, NOVEMBER 29, 2000). 78. What are the requisites before an extrajudicial confession is admissible? To be admissible in evidence, an extrajudicial confession must be: (i) voluntary; (ii) made with the assistance of competent and independent counsel; (iii) express; and (iv) in writing. A suspect‘s confession, whether verbal or non-verbal, when taken without the assistance of counsel, without a valid waiver of such assistance, regardless of the absence of coercion or the fact that it had been voluntarily given, is inadmissible in evidence, even if appellant‘s confession were gospel truth. (PEOPLE VS. DANO, G.R. NO. 117690, 339 SCRA 515, SEPT. 1, 2000; PEOPLE VS. SAMOLDE, G.R. NO. 128551, 336 SCRA 632, JUL. 31, 2000).

To be admissible in evidence, an extrajudicial confession must be: (i) voluntary; (ii) made with the assistance of competent and independent counsel; (iii) express; and (iv) in writing. A suspect‘s confession, whether verbal or non-verbal, when taken without the assistance of counsel, without a valid waiver of such assistance, regardless of the absence of coercion or the fact that it had been voluntarily given, is inadmissible in evidence, even if appellant‘s confession were gospel truth. 79. Is the presence of a lawyer to assist the suspect during custodial investigation sufficient to comply with the requirements of the Constitution? No. As held in PEOPLE VS. PATUNGAN, 354 SCRA 413, the mere presence of a lawyer is not sufficient compliance with the constitutional requirement of assistance of counsel.

Assistance of counsel must be effective, vigilant and independent. A lawyer who could just hear the investigation going on while working on another case hardly satisfies the minimum requirements of effective assistance of counsel. Not only was the accused subjected to custodial investigation without counsel, he was likewise denied effective assistance of counsel during the taking of his extra-judicial confession. 80. From what time must the counsel assist the suspect during custodial investigation? Who must choose such counsel? In PEOPLE V. JIMENEZ, G.R. No. 82604. December 12, 1991, it was held that the counsel must be present from the inception of the custodial investigation not at any time thereafter.

Also, the lawyer who assists the suspect under custodial interrogation should be of the latter’s own choice, not one foisted on him by the police investigators or other parties. In this case, the former judge whose assistance was requested by the police was evidently not of Marcos Jimenez’ own choice; she was the police officers’ own choice; she did not ask Marcos if he was willing to have her represent him. This is not the mode of solicitation of legal assistance contemplated by the Constitution. Furthermore, the former judge was not present when Marcos was being interrogated by the police. While she asked him if he had voluntarily given the statements contained in the typewritten document, this is far from being BAR OPERATIONS 2011 Page 53

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substantial compliance with the interrogation.

constitutional duty of police investigators during custodial

81. Is the extrajudicial confession of a suspect obtained without the assistance of a lawyer, but speaks of gospel truth, admissible in evidence? No. In PEOPLE VS. GALIT, 135 SCRA 465, PEOPLE VS. PANFILO CABILES, 284 SCRA 199; and PEOPLE VS. TAN, 286 SCRA 207, it was held that even if the confession of the accused speaks the truth, if it was made without the assistance of counsel, it is inadmissible in evidence regardless of the absence of coercion or even if it was voluntarily given. In order that a confession is admissible, the following requisites must be present: a. the confession must be voluntary; b. the confession must be made with the assistance of a competent and independent counsel; c. the confession must be express; and d. the confession must be in writing.

The above requirements, however, are not applicable when the suspect makes an spontaneous statement, not elicited through questioning by the authorities, BUT GIVEN IN AN ORDINARY MANNER WHEREBY THE ACCUSED ORALLY ADMITTED HAVING COMMITTED THE CRIME. This was the decision of the Supreme Court in the case of PEOPLE VS. ANDAN, March 3, 1997 when the accused made a voluntary and verbal confession to the Municipal Mayor that he committed the crime imputed to him. As such, his uncounselled confession is admissible in evidence. 82. What are the two (2) kinds of coerced or involuntary confessions under Section 12, Art. III of the Constitution? The two (2) kinds of involuntary or coerced confessions under Art. III, Section 12 of the Constitution. These are: a. confession which are the product of third degree methods such as torture, force, violence, threat, intimidation; and b. those which are given without the benefit of Miranda Warnings.

PEOPLE VS. OBRERO, 332 SCRA 190 83. What is the status of coerced confessions as evidence in court? Coerced or involuntary confessions are inadmissible as evidence being the ―fruit of the poisoned tree.‖ 84. Is the right to counsel satisfied if the suspect was assisted by the Station Commander of the Western Police District while he was being investigated by the policemen of the same station? How about if the investigation is being conducted by the NBI and the suspect was ordered assisted by a lawyer-applicant therein? There is no compliance of the constitutional requirement of competent and independent counsel to assist an accused during custodial investigation when the accused was assisted by the Station Commander of the WPD, Atty. De los Reyes, while being investigated by other policemen of the same police station because the interest of the police is naturally adverse to the accused. In fact, the SC in the case of PEOPLE VS. JANUARIO, 267 SCRA 608 held that a lawyer applying for a position in the NBI could not validly assist an accused being investigated then by the NBI. (PEOPLE VS. OBRERO, 332 SCRA 190)

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85. Is the right to counsel available to a suspect during a police line-up? The Supreme Court had conflicting decisions on this aspect but ended up with the rule that since the accused will not be made to make any testimony during the police line-up, then he is not under custodial investigation and therefore, there is no need for him to be assisted by a lawyer. ( P vs. Usman Hassan, 157 SCRA 261; Gamboa vs. Judge Cruz, 162 SCRA 642; DE LA TORRE VS. CA, 294 SCRA 196 and PEOPLE VS. HATTON) 86. Is there a valid custodial investigation if the lawyer who assisted him during custodial investigation is a public attorney who was not chosen by the accused himself but given to him free of charge? Could the Fiscal also represent the accused during custodial investigation to satisfy the requirement of the Constitution that the accused is assisted by counsel?

The counsel must be the choice of the accused or suspect. (P. vs. Alegria, September 28, 1990) Also, the Fiscal could not have protected the rights of the suspect, even if they are known to each other, since the Fiscal is there for the private complainant. (P. vs. Matos-Viduaya, September 11, 1990) 86-a. The appellants were arrested by the PAOCTF for Kidnapping and Murder of two (2) minor children of a businessman from Bulacan. While under custodial investigation by Col. Cesar Mancao, the lawyers given to assist them tare the lawyers of PAOCTF. Was the confessions obtained during the custodial investigation admissible in evidence? Yes. As held in the case of PEOPLE OF THE PHILIPPINES VS. DOMINGO REYES, ET AL., G.R. No. 178300, March 17, 2009, the Supreme Court held that since the evidence shows that the lawyers of PAOCTF assisted them from the start up to the end of their custodial investigation and that their rights were protected, the same is admissible as evidence especially so that there is no evidence of compulsion. 86-b.

What are the evidence of voluntariness in the suspect’s extrajudicial confession making it admissible in evidence? May such confession be used against a co-accusd? Up to what extent? In People vs. Pia, 229 Phil. 577 and PEOPLE VS. REYES, G.R. No. 178300, March 17, 2009, the Supreme Court enumerated the following as evidence of voluntariness in the extrajudicial confession of a suspect: Their physical examination reports certify that no external signs of physical injury or any form of trauma were noted during their examination. 42[93] In People v. Pia, we held that the following factors indicate voluntariness of an extra-judicial confession: (1) where the accused failed to present credible evidence of compulsion or duress or violence on their persons; (2) where they failed to complain to the officers who administered the oaths; (3) where they did not institute any criminal or administrative action against their alleged intimidators for maltreatment; (4) where there appeared to be no marks of violence on their bodies; and (5) where they did not have themselves examined by a reputable physician to buttress their claim. It should also be noted that the extra-judicial confessions of appellants Arnaldo and Flores are replete with details on the manner in which the kidnapping was committed, thereby ruling out the possibility that these were involuntarily made.

Their extra-judicial confessions clearly state how appellants and their cohorts planned the kidnapping as well as the sequence of events before, during and after its occurrence. The voluntariness of a confession may be inferred from its language if, upon its face, the confession exhibits no suspicious circumstances tending to cast doubt upon its integrity, it being replete with details which could only be supplied by the accused. With respect to appellant Reyes‘s claim that the extra-judicial confessions of appellants Arnaldo and Flores cannot be used in evidence against him, we have ruled that although an extra-judicial confession is admissible only against the confessant, jurisprudence makes it admissible as corroborative 42[93]

Id. at 19.

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evidence of other facts that tend to establish the guilt of his co-accused. 43[96] In People v. Alvarez, 44[97] we ruled that where the confession is used as circumstantial evidence to show the probability of participation by the co-conspirator, that confession is receivable as evidence against a co-accused. In People v. Encipido45[98] we elucidated as follows: 87. If the extrajudicial admission or confession of the accused is declared inadmissible as evidence, must the accused be acquitted as a matter of right? No. In PEOPLE VS. ROLANDO FELIXMINIA y CAMACHO, GR No. 125333, March 20, 2002, the Supreme Court held that though the extrajudicial confession of the accused was declared inadmissible for violation of his right to counsel, if there are evidence sufficient to prove his guilt beyond reasonable doubt, like circumstantial evidence, then he can still be convicted of the crime charged.

This is so because [1] the compromising circumstances were duly proven which were consistent with each other and which lead with moral certainty to the conclusion that he was guilty of the crime charged; and [2] the totality of such circumstances eliminated beyond doubt the possibility of his innocence. In People vs. Mahinay, it was held that conviction may be had on circumstantial evidence provided the following requisites are present: [a] there is more than one circumstance; [b] the facts from which the inferences are derived are proven; and [c] the combination of all circumstances is such as to produce a conviction beyond reasonable doubt. 88. May a convicted person be released from jail through recognizance? No. In ATTY. JULIANA ADALIM-WHITE VS. JUDGE ARNULFO BUGTAS, RTC 2 BORONGAN, SAMAR, 475 SCRA 175, it was held that respondent Judge is guilty of gross ignorance of the law for ordering the release of Bagaporo pending the approval of his application for parole and before the completion of the minimum period of the sentence imposed upon him.

It is patently erroneous to release a convict on recognizance. Section 24, Rule 114 provides that there shall no bail for a convict after final judgment. The only exception is when the convict applies for Probation before he commences to serve his sentence and that the offense and the penalty for the offense is within the purview of the Probation Law. Sections 5 and 16 of Rule 114 of the Rules of Court (on the different kinds of bail) APPLIES ONLY TO AN ACCUSED UNDERGOING PREVENTIVE IMPRISONMENT DURING TRIAL OR ON APPEAL. THEY DO NOT APPLY TO A PERSON CONVICTED BY FINAL JUDGMENT AND ALREADY SERVING SENTENCE. 89. May a judge require “cash bond” only? No. The Rules provides for four (4) ways of posting bond and it is grave abuse of discretion on the part of the judge to require cash bond only. (Almeda vs. Villaluz, 66 SCRA 38). 90. May an accused charged of a capital offense and the evidence of guilt is strong be granted bail? Yes. The purpose of the bond is to assure the court of the presence of the accused during the trial of his case. If the probability of ―flight‖ is nil, then the accused may be allowed to post bail. (BELTRAN VS. THE SECRETARY OF JUSTICE, April, 2007) 91. May a person subject of extradition from another country and where the cases against him in said country are bailable, be allowed to post bail pending the extradition hearings? No. As held in UNITED STATES VS. JUDGE PURUGGANAN & MARK JIMENEZ, 389 SCRA 623 through former Chief justice Panganiban, the Supreme Court held that a person facing 43[96] 44[97] 45[98]

Santos v. Sandiganbayan, 400 Phil. 1175, 1206 (2000). G.R. No. 88451, 5 September 1991, 201 SCRA 364, 377. 230 Phil. 560, 574 (1986).

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extradition proceedings is not entitled to bail even if the crime he was charged of in a foreign country is bailable. This is so because the constitutional provision on the right to bail under Art. III of the 1987 Constitution applies only to criminal cases, not in extradition proceedings. (EDUARDO RODRIGUEZ VS. THE PRESIDING JUDGE, RTC 17, MANILA, 483 SCRA 290). This is so because of the possibility of flight. BUT IN THE CASE OF GOVERNMENT OF HONGKONG VS. OLALIA, 521 SCRA 470, it was held that the potential extradite may be granted bail if he can prove by clear and convincing evidence that he is not a flight risk and will abide with all the orders and processes of the extradition court. “Clear and convincing evidence” is an evidence with a standard lower than proof beyond reasonable doubt but more than preponderance of evidence. 92. In extradition cases, is the respondent therein entitled to notice and hearing before the issuance of a warrant of arrest against him? No. In SECRETARY OF JUSTICE VS. JUDGE LANTION, 322 SCRA 160 (The Mark Jimenez Case) , the Supreme Court on a 9-6 vote held that the extraditee is entitled to notice and hearing when a request for extradition by another country is still being evaluated. However, on Motion for Reconsideration in the same case, in a 9-6 decision, the Supreme Court held that the prospective extraditee is not entitled to notice and hearing while his case is still under evaluation because this would defeat the purpose of the arrest warrant since it could give warning that respondents would be arrested and even encourage them to flee but entitled to notice and hearing if the case is already filed in court.

However, if bail was granted to an extradite, the same may not be cancelled without notice and hearing. Otherwise, his right to due process will be violated. (EDUARDO RODRIGUEZ VS. THE PRESIDING JUDGE, RTC 17, MANILA, 483 SCRA 290) 93. What is the “EQUIPOISE RULE”? If the evidence in a criminal case is evenly balanced, the constitutional presumption of innocence tilts the scale of justice in favor of the accused and he should be acquitted from the crime charged. Where the inculpatory facts and circumstances are capable of two or more interpretations one of which is consistent with the innocence of the accused and the other consistent with his guilt, then the evidence does not fulfill the test of moral certainty and is not sufficient to support a conviction because of the accused‘s constitutional presumption of innocence.(PEOPLE VS. DE LOS SANTOS, 355 SCRA 415) 94. May the court reverse the order of trial in a criminal case? No. such would violate the right of the accused to presumption of innocence. To be required to present his evidence first would be making him prove his innocence and not the State proving his guilt. (Alejandro vs. Pepito, 96 SCRA 322) However, if the accused does not object to such a procedure, then a reverse order of trial is allowed by the Rules. (Sacay vs. Sandiganbayan, July 10,l986) In fact it should be noted that under the newly adopted 1985 Rules of Criminal Procedure (Sec. 3e), Rule 119)the said procedure is now expressly sanctioned.

Thus: “However, when the accused admits the act or omission charged in the complaint or information but interposes a lawful defense, the order of trial may be modified accordingly.” 95. What is the extent of the obligation of a counsel de oficio for an accused in a criminal case? While an accused may be given a counsel de oficio which is not a lawyer of his own choice because he could not afford the services of a de parte lawyer, only the faithful performance by counsel of his duty towards his client can give meaning and substance to the accused‘s right to due process and to be presumed innocent until proven otherwise. Hence, a lawyer‘s duty, especially that of a defense counsel, must not be taken lightly. It must be performed with all the zeal and vigor at his command to protect and safeguard the accused‘s fundamental rights. The cavalier attitude of Atty. Manolo Brotonel of the PAO cannot go unnoticed. It is discernible in [a] his refusal to cross-examine Oleby Nadera (the BAR OPERATIONS 2011 Page 57

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complainant for RAPE); [b] the manner in which he conducted Maricris Nadera‘s cross-examination; and [c] his failure not only to present evidence for the accused but to inform the accused of his right to do so, if he desires. (PEOPLE VS. NADERA, JR., 324 SCRA 490) 96. If the accused has the right to be present during the trial of his case, can he also refuse to appear during the hearings of his case? No. During arraignment, promulgation of the decision and when he is to be identified by the witnesses for the prosecution, he must be present. However, he can validly waive his presence after arraignment when he state in open court or in an affidavit that whenever a witness mentions his name during the presentation of the prosecution‟s evidence, he admits that he is the one being referred to. (Aquino vs. Military Commission, 63 SCRA 546; P vs. Judge, 125 SCRA 269) 97. When may “speedy trial” be raised by the accused to cause the dismissal of his case? What kind of delays must occur before the same could be invoked? In JAIME BERNAT VS. SANDIGANBAYAN, May 20, 2004, it was held that the right to speedy trial is violated only if the proceedings were attended by vexatious, capricious and oppressive delays. The determination of whether the delays are of said nature is relative and cannot be based on mere mathematical reckoning of time. Particular regard to the facts and circumstances of the case. As held in the case of DE LA PENA VS.

SANDIGANBAYAN, certain factors shall be considered and balanced to determine if there is delay, as follows: Length of the delay; Reasons for the delay; Assertion or failure to assert such right by the accused; and Prejudiced caused by the delay. There is no violation of the right to speedy disposition of his case because petitioner failed to assert his constitutional right to a speedy disposition of his case. During the 8-year period prior to April 19, 2002, petitioner did not complain about the long delay in deciding his case. 98. May the right to speedy disposition of cases be invoked for the dismissal of cases pending before quasi-judicial bodies like the Office of the Ombudsman? Yes, unreasonable delays like failure to decide a complaint against the respondent for more than three (3) years from the time all the pleadings were filed violates the respondent‘s right to a speedy disposition of his case and the case must be dismissed. (DUTERTE VS. SANDIGANBAYAN, 289 SCRA 721; ANGCHANGCO VS. OMBUDSMAN, 269 SCRA 301)

The determination of whether an accused had been denied the right to speedy trial depends on the surrounding circumstances of each case. Although it took about 8 years before the trial of this case was resumed, such delay did not amount to violation of petitioner‘s right to speedy trial considering that such delay was not attributable to the prosecution. The factors to consider in determining whether or not such right has been violated: 1. length of delay, 2. reasons for such delay, and 3. assertion or failure to assert such rights by the accused and the prejudice caused by the delay. (ii) Speedy Trial Act of 1998. The authority of the Secretary of Justice to review resolutions of his subordinates even after an information has already been filed in court does not present an irreconcilable conflict with the 30-day period prescribed in Sec. 7 of the Speedy Trial Act of 1998. (SUMBANG VS. GEN. COURT MARTIAL, G.R. NO. BAR OPERATIONS 2011 Page 58

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140188, 337 SCRA 227, AUG. 3, 2000; BLANCO VS. SANDIGANBAYAN, G.R. NOS. 136757 – 58, 346 SCRA 108, NOV. 27, 2000; SOLAR TEAM ENTERTAINMENT, INC. HON. HOW, G.R. NO. 140863, 338 SCRA 51, AUG. 22, 2000). 99. Was the failure of the court to have a sign language expert to inform the accused who is a deaf-mute of the contents of the criminal information fatal to the validity of the proceedings which resulted in the conviction of the said accused? Yes because the accused was denied of the right to be informed of the nature and cause of the accusation against him. As such, the entire proceedings is null and void and another trial be conducted in the presence of a sign language expert to inform the accused of the proceedings. (Sales vs. CA, 164 SCRA 717; P vs. Crisologo, 150 SCRA 653) 100. May an accused in a “Homicide” case be convicted of “Murder” without violating his right to be informed of the nature and cause of accusation against him?

Yes. Even if the Information was captioned ―For: Homicide‖ only but the body of the Information alleges ―treachery‖ or ―evident premeditation‖ and the same was read to the accused, he could be convicted of Murder. This is so because it is the body of the Information that is binding, not the caption thereof and therefore, the accused was duly informed of the nature and cause of accusation against him. (P vs. Resavaga, 159 SCRA 426) 101. What is the effect of the testimony of a witness who did not return to court for his cross examination? How about if there is only partial cross-examination? A witness who did not return to court for his cross-examination would render his entire testimony inadmissible for being hearsay. It likewise violated the right of confrontation on the part of the accused. (Ortigas, JR. vs. Lufthansa, 64 SCRA 610) If the witness was partially examined, only the portion of his direct testimony where he was cross-examined shall be admissible as evidence.( P vs. Seneris, 99 SCRA 92) 102. What are the requisites of a valid trial in absentia? May an accused who jumped bail after arraignment be validly convicted by the trial court?

The requisites of a valid trial in absentia are the following: The accused was duly arraigned; The accused was notified of the hearing; and The accused‘s absence [during the trial] is unjustifiable. 103. May an accused compel the trial court to issue subpoena to a Physician who is already working in the United States to testify on his treatment of the accused? Would the failure of said witness to appear and testify for the accused violates his right to subpoena witnesses and the production of evidence in his favor? No. Such witness is beyond the jurisdiction of the Philippine Courts. Further, his right to subpoena witnesses and the production of evidence will not be violated since the hospital could produce said records and another physician could testify on the contents thereof. (Cavili vs. Hon. Florendo, 154 SCRA 610; Fajardo vs. Garcia, 98 SCRA 514) 104. May the accused be presented by the prosecution as the latter’s witness? No. Such would violate the right of the accused against self-incrimination and if such happened, the proceedings shall be null and void. (Chavez vs. CA, 24 SCRA 663) 105. Generally, to what kind of evidence does the right against self-incrimination applies? BAR OPERATIONS 2011 Page 59

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Generally, it applies only to ―testimonial compulsion.‖ As such, forcing a person to give a sample of his urine to determine whether a woman is pregnant (Villaflor vs. Summers, 41 Phil. 62); whether a person is suffering from sexually transmitted disease (US vs. Tang Teng, 23 Phil. 145) or under the influence of prohibited drugs (PEOPLE VS. BANIHIT, G.R. NO. 132045, 339 SCRA 86, AUG. 25, 2000; PEOPLE VS. CONTINENTE, G.R. NOS. 100801- 02, 339 SCRA 1, AUG. 25, 2000) does not violate the person‘s right against self-incrimination. Likewise forcing one to try a pair of shoes, pants or shirt does not fall under the above proscription. 106. How about forcing a person to give a sample of his handwriting?. Though the same does not require testimonial compulsion, the right against self-incrimination will be violated by said act.

This is so because it involves the use of the intelligence of the person. (Beltran vs. Samson, 50 Phil. 570) 107. Does the right against self-incrimination applicable to civil and administrative cases also? Yes but unlike in criminal cases where the accused could not be presented by the prosecution and his right not to take the witness stand is absolute, an adverse party in a civil or administrative cases may be presented by the other party but could refuse to answer only if the question propounded calls for an incriminatory answer. 108. May a court stenographer who had resigned from the government be compelled to transcribe her notes under pain of contempt without violating her right against involuntary servitude? Yes. This is so because the testimony was taken while she was still in the government and as such, it was her obligation to transcribe the same, having received her salary for the day when the testimony was taken. (Aclaracion vs. Gatmaitan, 64 SCRA 131) 109. Is the Death Penalty already abolished by the 1987 Constitution?

While the Supreme Court answered the same in the affirmative in the cases of P vs. Gavarra, 155 SCRa 327; P vs. Masangkay, 155 SCRA 113; P vs. Atencio, 156 SCRA 242; P vs. Intino, September 26, 1988 it held in People vs. Munoz, 170 SCRA 107 that it was merely suspended. 110. Is death as a penalty a cruel or unuasual punishment?

No. (P vs. Estoista, 93 Phil. 647). It is only when the punishment is shocking to the conscience of the community and disproportionate to the offense charged that the penalty becomes cruel and unusual. In fact, the Supreme Court held in ECHEGARAY VS. SECRETARY OF JUSTICE that death through Lethal Injection is the most humane way of implementing the death penalty. 111. What are the requisites before an accused may validly invoke double jeopardy? There is double jeopardy when there is: [1] valid complaint of information; [2] filed in a court of competent jurisdiction; [3] the accused was validly arraigned; and [4] the accused was convicted or acquitted, or the case was dismissed or otherwise terminated without the express consent of the accused. (PEOPLE VS. ALMARIO, 355 SCRA 1) 112. If the dismissal was with the express consent of the accused, may the dismissal result in double jeopardy?

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Yes in two (2) instances. As a general rule, if the dismissal is through the instance of the accused or with his express consent, there is no double jeopardy. However, this rule admits of two (2) exceptions: 1) the motion to dismiss is based on insufficiency of evidence or Demurrer to Evidence; and 2) the motion to dismiss is based on the denial of the accused’s right to speedy trial. (PEOPLE VS. ALMARIO, 355 SCRA 1) -double jeopardy has set in. In these two (2) instances, the correct description of what happened is that the accused was ―acquitted‖ and not ―the case was dismissed with his consent‖. It must be pointed out, however, that in PEOPLE VS. TAMPAL, 244 SCRA 202 and PEOPLE VS. LEVISTE, 255 SCRA 238, the SC reversed the dismissal of the criminal case by the trial court based on ―speedy trial‖ since the same was not predicated ―on the clear right of the accused to speedy trial.‖ It is only when there is a clear violation of the accused‘s right to speedy trial that the dismissal results in double jeopardy. 113. The accused was charged of theft of electricity based on the City Ordinance of Batangas City. After arraignment, the case was dismissed because it was found out that the same has prescribed because it was filed after more than 60 days.

The Fiscal filed another information based on the Revised Penal Code. Has double jeopardy set in? Yes. If the accused was charged of ―theft of electricity‖ based on the City Ordinance of Batangas and not based on the Revised Penal Code and later on the case is dismissed by the judge due to the fact that the crime has prescribed, the government can no longer charge the accused of the same crime under the Revised Penal Code since double jeopardy has set in. If an act is punished by law and an ordinance, acquittal or conviction in one shall bar prosecution from the other. (PEOPLE VS. RELOVA, 148 SCRA 292) 114. The accused was charged of grave coercion before the MTC and was duly arraigned. The Judge dismissed it without any motion form the accused because the case is allegedly outside the MTC’s jurisdiction. Another information for the same offense was filed with the RTC which was likewise dismissed because of lack of jurisdiction. As such, the Fiscal filed a 3 rd information for grave coercion before the MTC.

The accused pleaded double jeopardy. Is he correct? Yes. Since the accused was already arraigned in the 1st information before the MTC which has jurisdiction over the same and the case was subsequently dismissed without his express consent, then double jeopardy has set in. 115. The accused was arraigned of homicide and entered a plea of guilty but prayed that he be given the chance to prove incomplete self-defense which the court granted. After presenting his evidence to prove “incomplete self-defense”, the court acquitted him because what was allegedly proven by him was complete self-defense. May the accused validly invoke double jeopardy if the Prosecutor moves for the reinstatement of the case for him to present the evidence of the prosecution? No because one of the requisites of double jeopardy is missing. There was no valid arraignment. This is so because his plea was one of guilty and yet, he was acquitted. In this case, he has to be rearraigned for him to enter a plea of ―not guilty‖ in order that he could be validly acquitted. 116. The accused was convicted of frustrated murder. Within 15 days from promulgation, he filed a Motion for New Trial based on a “newly-discovered evidence” which was granted by the court. After the presentation of the alleged “newly-discovered evidence”, the accused was acquitted. May the prosecution appeal the acquittal since the evidence presented was not really a newly-discovered BAR OPERATIONS 2011 Page 61

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evidence but a forgotten one and that even assuming that the same is a newly-discovered evidence, it was insufficient to overturn the evidence of guilt as proven by the prosecution. In the case of P vs. Judge Hernando, 108 SCRA 121, the Supreme Court held that indeed, the evidence presented was not ―newly-discovered evidence‖ and that assuming it to be so, it was not sufficient to overturn the evidence of guilt as shown by the prosecution‘s evidence. However, though the decision was erroneous, double jeopardy has set in and the government could no longer appeal the decision. So even if the court obviously erred in the appreciation of the evidence resulting in a decision of acquittal instead of conviction, appeal would put the accused in double jeopardy. (Mazo vs. Mun. Court, 113 SCRA 217) 117. May the government appeal a judgment of acquittal or for the increase of the penalty imposed? No since double jeopardy has set in. (PEOPLE VS. HON. VELASCO, G.R. NO. 127444, 340 SCRA 207, SEPT. 13, 2000). As mandated by the Constitution, statutes and cognate jurisprudence, an acquittal is final and unappealable on the ground of double jeopardy, whether it happens at the trial court of a judgment of acquittal brought before the Supreme Court on certiorari cannot be had unless there is a finding of mistrial, as in Galman vs. Sandiganbayan.

However, if the accused was the one who appealed the decision of the CFI convicting him of homicide (though he was charged of murder), the appellate court may convict him of murder if the evidence warrants and that the lower court mis-appreciated the evidence. This is so because if the accused appeals the decision, the same will be subject to a complete re-examination of the evidence on record. 118. What is the “Supervening Fact Doctrine.” It simply provides that an accused‘s conviction shall not be a bar to another prosecution for an offense which necessarily includes the offense charged in the former complaint or information when the graver offense developed due to supervening facts arising from the same act or omission constituting the former charge or that the facts constituting the graver charge became known only or were discovered after a plea was entered in the former complaint or information. (Section 7, Rule 117, 2000 Rules of Criminal Procedure; P vs. Tarok, 73 Phil. 260; P vs. Villasis, 46 O.G. 268; Melo vs. People, 85 Phil. 766; P vs. Buling, 107 Phil. 712; P vs. Adil, 76 SCRA 462; P. vs. Tac-an, 182 SCRA 601; and P vs. City Court of Manila, 121 SCRA 637 119. When may the “ex-post facto law” rule be invoked? Only if the law sought to be applied is a ―criminal law or penal‖. Otherwise, the same may not be invoked as when the questioned law involves the jurisdiction of the Sandiganbayan which is not a penal law.

Ex post facto law prohibits the retrospectivity of penal laws. RA 8249 is not a penal law. It is a substantive law on jurisdiction which is not penal in character. (PANFILO M. LACSON VS. THE EXECUTIVE SECRETARY, THE SANDIGANBAYAN, ET AL., ROMEO ACOP & FRANCISCO ZUBIA, JR., G.R. No. 128096, January 20, 1999) 120. What are the different forms of ex-post facto law? In order that a law is an ex post facto law, the same must be one— a. which makes an act done criminal before the passing of the law and which was innocent when committed, and punishes such action; b. which aggravates a crime or makes it greater than when it was committed; c. which changes the punishment and inflicts a greater punishment than the law annexed to the crime when it was committed;

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d. which alters the legal rules of evidence and receives less or different testimony than the law required a the time of the commission of the offense in order to convict the defendant; e. every law which, in relation to the offense or its consequences, alters the situation of a person to his disadvantage; f. that which assumes to regulate civil rights and remedies but in effect imposes a penalty or deprivation of a right which when done was lawful; g. 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 (KAY VILLEGAS KAMI, 35 SCRA 429; MEJIA VS. PAMARAN, 160 SCRA 457; TAN VS. BARRIOS, 190 SCRA 686; PEOPLE VS. SANDIGANBAYAN, 211 SCRA 241). *******************************************

THE BARRISTERS’ CLUB OFFICERS:
Virgel Amor Vallejos
(Chancellor) (Secretary)

Seychelles June M. Doringo Janilet Mishelle R. Carillo
(Treasurer)

Art Miguel B. Sanlao and Angelito Velasquez Jr.
(Business Managers) (PRO)

Rachelle May Gallego Paul Dean Mark Pila
(SSG Representative)

Brenda Filipinas Danganan
(Ex-officio) (Adviser)

Atty. Isagani Calderon Atty. Reynaldo U. Agranzamendez
(Dean,College of Law)

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