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POLITICAL LAW REVIEWER

(October 1, 2018)

Prepared by

ATTY. LARRY D. GACAYAN


Professor of Law
UNIVERSITY OF THE CORDILLERAS
Baguio City
(P OLITICAL L AW R EVIEW , C ONSTITUTIONAL L AW I, C ONSTITUTIONAL L AW II )

BAR REVIEWER
(Constitutional Law)

VILLASIS LAW CENTER


Manila, Cebu City, Quezon City and Makati City

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PART I

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. (Manila Prince Hotel
Corporation Case)

4. What are the requisites for the valid exercise of “people’s


initiative” to propose amendments to 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
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implementation of the exercise of this right---which means that there must be


complete and adequate law for the said purpose.

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.

However, in LAMBINO VS. COMELEC, 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.

6. 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.

7. 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
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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 THE PETITION ITSELF.

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 CONTAINS THE FULL TEXT OF THE PROPOSED AMENDMENTS.

8. 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, as cited in Santiago vs.
COMELEC & LAMBINO VS. COMELEC)

9. May Congress propose amendments to the Constitution while at


the same time enacting a law calling for a Constitutional Convention to
propose amendments to the Constitution?

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). IN SHORT, IT APPEARS THAT THERE IS NO
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PROHIBITION FOR CONGRESS, A CONSTITUTIONAL CONVENTION AND


THE PEOPLE MAKING A PROPOSAL TO AMEND THE CONSTITUTION AT
THE SAME TIME SINCE THIS IS A POWER SEPARATELY GRANTED TO
THEM BY THE CONSTITUTION UNDER ART. XVII OF THE 1987
CONSTITUTION.

10. 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 their ratification or rejection
at the same time, not piecemeal. (TOLENTINO VS. COMELEC, 41 SCRA 702)

11. 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.”

12. 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

13. 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.

14. 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.

15. What are the three (3) kinds of de facto government?


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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
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.

16. What is the postliminy theory or jus postliminium?


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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.)

17. 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)

18. 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) As such, even if the Philippines is not a signatory
to a generally accepted principle of international law like the Geneva
Convention on Land Warfare, it may validly use the same in the trial of war
criminals during the Second World War. KURODA VS. JALANDONI, 83 Phil
171, and AGUSTIN VS. EDU, 88 SCRA 195).

19. 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 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”.

20. 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.
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21. 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.

22. 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,

23. 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
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weapons in its territory.” As such, if it is consistent with national interest, the same
is not prohibited.

24. 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.

25. Is abortion allowed in the Philippines?

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])

26. Is the provision of the Reproductive Health law allowing


contraceptives violative of Section 12, Art. II of the Constitution which
prohibits abortion?

No provided said contraceptives do not kill or destroy a fertilized ovum.


But contraceptives that prevent the union of male sperm and female ovum are
not prohibited by the Constitution. Contraceptives before fertilization are not
prohibited. (IMBONG VS. OCHOA, GR No. 204819, April 8, 2014)

27. Does the provision of the RH Law allowing a spouse to undergo


reproductive health procedures like tubal ligation or vasectomy without
the knowledge and consent of the husband constitutional?

It is unconstitutional because it violates the provisions on “family. Family is


shared by both souses. One person cannot complete a family. There should be
mutual decision-making on the part of the spouses on said procedures. IMBONG
VS. OCHOA, GR No. 204819, April 8, 2014)

28. Does the provision of the RH Law allowing contraceptives


violative of the constitutional provision on the right to health since
contraceptives are hazardous to one’s health?

No. There exists adequate safeguards in the RH Law which safeguards


that only contraceptives which are safe shall be made available to the public
because dispensation and distribution of contraceptives shall still require the
prescription of a physician. IMBONG VS. OCHOA, GR No. 204819, April 8,
2014)
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29. 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…”

30. 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.

31. 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.

32. 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.
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33. Is the Trade Liberalization Act of 2000, RA No. 8762 which allows
foreigners to engage in retail trade in the Philippines violative of Secs. 9,
19 and 20 , At. II of the Constitution which mandates that the national
economy shall be effectively controlled by Filipinos?

No, said law is constitutional. As held by the Supreme Court in REP.


GERARDO ESPINA ET AL VS. EXEC. SEC. RONALDO ZAMORA, G.R. No.
143855, September 21, 2010 (The Trade Liberalization Act of 2000, RA No.
8762) which allows foreigners to engage in retail trade in 4 categories is not
unconstitutional for alleged violation of Secs. 9, 19 and 20 of Art. II which
mandates that the national economy shall be effectively controlled by Filipinos.
The constitutional provisions does not prohibit foreign investments BUT ONLY
TO REGULATE THE SAME. As such, the claim that as a result of the law,
WALMART and KMART retailers could come to the Philippines and would KILL
Filipino retailers has no basis because foreign participation in retail business is
limited.

34. 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
ONLY A LIMITED RIGHT TO PRIVACY. (SABIO VS. GORDON, 504 SCRA 704)

35. 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

36. Is the Pork Barrel System or the Priority Development Assistance


Fund (PDAF) of Senators and Congressmen constitutional?

It is unconstitutional for it violates the following provisions or principles


under the Constitution:

1. SEPARATION OF POWERS. This is so because Congress should


enact laws only and that the executive department shall implement the
same.In the case of the Pork Barrel System, Congress will enact it but
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the individual members of Congress still play a role in its


implementation. The Supreme Court in ABAKADA PARTY LIST VS.
PURISIMA, 562 SCRA 251 had already held that “from the moment
the law becomes effective, any provision of the law which
empowers Congress or any of its Members to play any role in the
implementation or enforcement of the law violates the separation
of powers”.

2. NON-DELEGATION OF LEGISLATIVE POWERS. The power of


appropriation is lodged in CONGRESS AS A WHOLE. The Pork Barrel
System confers on INDIVIDUAL LEGISLATORS post-enactment
authority on his “pork barrel” . This violates the non-delegation of
legislative power because such act ALLOWS EACH LEGISLATOR TO
EFFECTIVELY EXERCISE THE POWER OF LEGISLATION on his
appropriated “pork barrel.”

3. CHECKS AND BALANCES. Since the PDAF does not contain


“specific appropriations of money” but only a general provision granting
P200,000,000.00 for each Senator and P70,000,000.00 for each
Member of the House of Representatives, the President is deprived of
his veto power on “specific item” in the General Appropriations Act. The
PDAF violates Section 25 [4], Art. VI of the 1987 Philippine
Constitution which provides that special appropriations shall specify
the purpose for which it is intended. In the case of the PRIORITY
DEVELOPMENT ASSISTANCE FUND (PDAF), after the General
Appropriations Act is passed, individual legislators would then receive
their personal lump-sum allocations and could effectivewly appropriate
PDAF Funds based on their discretion.

4. ACCOUNTABILITY OF PUBLIC OFFICERS. While Congress has the


oversight powers over the funds which it appropriated and
implemented by the executive agencies of the government and
therefore they could monitor the use of said funds during budget
hearings through examination of the officials of the executive
department and its power of inquiry in aid of legislation, the same could
not be done for the lump-sum allocations or PDAF of members of
Congress.

5. AUTONOMY OF LOCAL GOVERNMENT. As a result of the power


granted by the General Approriations Act authorizing the Members of
Congress to participate in the post-enactment implementation of the
funds covered by their “pork barrel”, it subverts local autonomy
because legislators, in effect, intervene in purely local matters.
GRECO BELGICA, ET AL. VS. EXECUTIVE SECRETARY
PPAQUITO OCHOA, ET AL., G.R. No. 208560, November 19, 2013
and companion cases)
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NOTE: The Supreme Court did not rule on whether or not the “pork barrel
system” perpetuates “political dynasty” because up to the present, there is yet no
“Political Dynasty Law” enacted by Congress even though the latter was
mandated by the Constitution to enact on. The Supreme Court, however,
recognized the effect of said “pork parrel” of each legislator as very effective in
perpetuating his and his family’s control over his district.

37. 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.

38. 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
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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.

39. 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 to those provided for by the Constitution for the President, VP,
Senators and Members of the House of Representatives. (PIMENTEL VS.
COMELEC, G.R. No. 161658, November 3, 2008)

40. 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.

41. If the candidate for Congressman is subsequently disqualified for


non-compliance of the residence requirement under Art. VI, may the 2 nd
placer be declared the winner in his place? When may the 2 nd 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. (FR. NARDO
CAYAT VS. COMELEC, 2007). This was the ruling in the case of
CODILLA VS. DE VENECIA. Hence, when a candidate has not been
disqualified by final judgment and on election day he obtained the highest
number of votes, 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
15

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 in
TOPACIO VS. PAREDES and reiterated in the cases of LABO VS.
COMELEC, ABELLA VS. COMELEC and DOMINO VS. COMELEC.

[NOTE: WHILE THIS CASE INVOLVES A MEMBER OF THE HOUSE OF


REPRESENTATIVES, THE SUPREME COURT IN THE CASE OF MAQUILING
VS. COMELEC & ARNADO THAT IF THE CANDIDATE FOR MAYOR WHO
RECEIVED THE HIGHEST NUMBER OF VOTES IS DISQUALIFIED EVEN
AFTER THE ELECTION, THE SECOND PLACER SHALL TAKE HIS PLACE,
NOT THE VICE MAYOR, BECAUSE THE FORMER’S VOTES SHOULD NOT
HAVE BEEN COUNTED AND THE LATTER IS THE QUALIFIED CANDIDATE
WHO OBTAINED THE HIGHEST NUMBER OF VOTES. (MAQUILING VS.
COMELEC, G.R. No. 195649, April 16, 2013)

41-a. Is the losing candidate for the position of SPEAKER of the House
of Representatives automatically becomes the minority floor-leader based
on “long-standing tradition” valid?

No. The new rule requiring those in the minority to elect the minority floor-
leader and not the losing candidate is valid and cannot be declared invalid by
the Supreme Court since it would be an unwarranted invasion of the prerogative
of a co-equal department. (TEDDY BRAWNER vs. SPEAKER PANTALEON
ALVAREZ ET AL., GR NO. 227757, July 25, 2017)

42. In order to validly create an additional 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. What is
applicable is Section 5, Art. VI of the Constitution, not Section 10, Art. X.
(BAGABUYO VS. COMELEC, December 8, 2008)

43. Is the creation of a fifth district in Camarines Sur by dividing the


existing 1st District into two (2) valid even though it will only have
177,000 plus population which is short of 250,000 as required under
Section 5 [3], Art. VI of the Constitution?

No. The 250,000 population requirement applies only to make a city


entitled to one legislative district or in the creation of a new province,
NOT IN THE CREATION OF A NEW DISTRICT IN AN EXISTING
16

PROVINCE. (BENIGNO AQUINO III VS. COMELEC, April 7, 2010)


[Dissenting Opinion of Justice Carpio: If the majority ruling is to be
followed, as long as the new district or districts will be carved out from
an existing province, then, even an area with only 200 inhabitants are
allowed to constitute a new district? It violates the requirement of
proportional representation as well as based on “uniform and
progressive ratio”]

44. Is the law creating the new legislative district for Malolos City
constitutional since the National Statistics Office had projected that it
will have a population of 254,030 by ”the year 2010”?

No, there must be 250,000 population on or before the May 10, 2010
elections. In this case, it was not clear that it has complied with the population
requirement on election day. 2010 is up to December of said year. (ALDABA
VS. COMELEC, G.R. No. 188078, January 25, 2010)

45. 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 116% in order that there will be 58 sectoral
representatives [in 20130 based on the number of legislative districts at
present. Also, the 20% party-list membership in the House of Representatives
shall be fully filled up, not just 20, 21, 22, or 23 when the Panganiban Formula
was used.

46. Is Dan Fernandez qualified to run for Congressman of the First


District of Laguna since he is renting an apartment in Sta. Rosa,
Laguna, even though his residential house is at Pagsanjan, Laguna
which is a part of the 5th district where he was residing before though he
resided in that rented apartment for more than 1 year before the 2007
elections?

Yes. Ownership of a real property in the place where one runs for
Congressman is not required by Section 6, Art. VI of the Constitution. (DAN
FERNANDEZ VS. HRET, December 21, 2009)

47. If a candidate for the House of Representatives, actor Richard


Gomez, was disqualified by the COMELEC based on Section 78 of the
Omnibus Election Code because “he was not a resident of Ormoc City”
at least one (1) year before the May 10, 2010 elections, may he be
substituted by his wife Lucy Torres? Assuming Lucy wins, may she
validly be declared the representative for said District?

No, a candidate disqualified under Section 78 of the Omnibus Election


Code cannot be substituted because the Certificate of Candidacy of of
17

Richard is not valid for lack of the qualification mandated by the Constitution.
A valid COC is a condition sine qua non for a valid candidate substitution.
Thewre was “material representation” in the COC of Richard when he claimed
he is a resident of Ormoc City when he was not. As such, Richard was not
considered a “candidate” or there was no candidate to speak of so there
would be no candidate to be substituted.

It is different for a candidate disqualified under Section 68 of the OEC. He


could be substituted because he has all the qualifications but was disqualified
due to an election offense like vote-buying, terrorism, etc. (TAGOLINO VS.
HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL AND LUCY
TORRES-GOMEZ, March 19, 2013)

48. 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?

No, there must be a law passed by Congress appropriating the funds for
the said purpose. ( LOZADA vs. COMELEC, 120 SCRA 337)

49. 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.

(Note: Was the Supreme Court correct in allowing Senator Joker Arroyo to
argue before the Supreme Court as COUNSEL for the Senate of the Philippines
in the cases (Drilon vs. Ermita, NERI vs. Blue Ribbon Committee, etc.) where
the Senate was a respondent therein despite Section 14, Art VI which provides
that “No Senator or Member of the House of Representatives may personally
appear as counsel before any court of justice…”?

50. 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.
18

51. 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.

52. 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])

53. May the COMELEC continue to decide a pending disqualification


petition against a candidate for the House of Representatives after
said candidate has been proclaimed and already discharging his
duties as such?

No more. Only the House of Representatives Electoral Tribunal (HRET)


has the jurisdiction to do that being “the sole judge of all contests relating
to the election, returns and qualifications” of said Member in accordance
with Section 17, Art. VI of the Constitution. [LIMKAICHONG VS.
COMELEC, April 1, 2009]

54. How about members of the House of Representative representing


the party-list groups?

All questions regarding the qualifications of members of the


different party-list groups are within the exclusive jurisdiction of the HRET
after their proclamation as such and that the COMELEC may no longer
continue to decide it. (ABAYON & PALPARAN VS. HRET, February 11,
2010)
19

55. May Lesbians, Gays, Bisexuals and Transgenders marginalized or


under-represented considering that they are not included in the
twelve “marginalized groups” enumerated by the Supreme Court in
ANG BAGONG BAYANI VS. COMELEC?

Yes because the enumerated sectors therein, i.e., labor, peasant,


fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped,
women, youth, veterans, overseas workers, and professionals, “is not
exclusive”.

56. May an individual who does not belong to a particular


marginalized group validly become the nominee of said sector?

Yes provided he must have a track record of advocacy for their


respective sectors. (ATONG PAGLAUM, INC VS. COMELEC, G.R. No.
203766, and companion cases, February 26, 2013).

57. May national parties qualified to join the party-list elections?

While the Supreme Court answered the same in the negative in the cases
of Ang Bagong Bayani and BANAT, they were allowed in ATONG PAGLAUM,
INC VS. COMELEC, G.R. No. 203766, and companion cases, February 26,
2013.

58. 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. [DAZA VS. SINGSON, December 21, 1989]
(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)

59. 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?

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
20

would be a travesty of justice. (BONDOC VS. PINEDA, September 26,


1991)

60. May the COMELEC continue to decide a disqualification case


against a candidate for the House of Representatives after the latter
has been proclaimed and taken her oath or shall it be the House of
Representatives Electoral Tribunal?

In the case of REGINA ONSIAKO REYES VS. COMELEC, GR No.


207264, June 25, 2013, the Supreme Court held that the COMELEC
retains jurisdiction because a 3rd requisite before the COMELEC loses
jurisdiction and that the HRET takes over jurisdiction, is absent. This is the
assumption of office. Senators and Congressmen assume office on the
30th day of June following their elections. Since the COMELEC’s decision
was promulgated before June 30, 2013, then, it still has jurisdiction to
decide the disqualification case.

61. 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.”

62. 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)

63. 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?
21

No if the conversations are covered by the “executive privilege”.

64. Explain 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?

The Nixon and post-Watergate cases established the broad contours of


the presidential communications privilege . In United States v. Nixon , 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, 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 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 ones . 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,
22

the power to negotiate treaties, etc .

The situation in Judicial Watch, Inc. v. Department of Justice , 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.

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 .

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 . 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
23

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. Nixon , 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 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.

65. 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
24

matter related to the House or Senate inquiry, then he could validly refuse to
attend to said hearing.

66. 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.

67. 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.

68. May the Senate Committee on Foreign Affairs conduct an


investigation of an incident involving ranking members of the PNP that
took place in Moscow, Russia?

Yes. It has the authority to investigate on “all matters relating to the


relations of the Philippines with all other nations”. (DE LA PAZ VS. SENATE
COMMITTEE ON FOREIGN AFFAIRS, February 13, 2009)

69. 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.)

70. 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
25

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.”

71. Is the Disbursement Acceleration Program (DAP) of the executive


department under the Department of Budget and Management
constitutional if it uses: [1]savings from completed programs; [2]
funds intended for discontinued or abandoned programs; and [3]
unpaid appropriatons for compensation--- to be used for projects
without a law appropriating it for specific projects or to be given to
Members of Congress for projects identified by them?

It is unconstitutional. It violates Section 25 [5] and Section 29 [1] of Article


VI of the 1987 Constitution which provides that “no money shall be paid out of the
Treasury except in pursuance of an appropriations made by law.” ARAULLO VS.
BENIGNO SIMEON C. AQUINO III, et al., GR No. 209287, July 1, 2014)

72. What is the Disbursement Acceleration Program (DAP)? Is DAP


an appropriation measure?

It is a government policy or strategy designed to stimulate the economy


through accelerated spending. It is not an appropriation measure and as such, no
law was necessary for the adoption and implementation of the DAP because it is
neither a fund nor an appropriation, but a program or an administrative system of
prioritizing spending and that the adoption of the DAP was by virtue of the
authority of the President as the Chief Executive to ensure that laws are faithfully
executed. (ARAULLO VS. BENIGNO SIMEON C. AQUINO III, et al., GR No.
209287, July 1, 2014)

73. Are the unreleased appropriations and withdrawn unobligated


allotments under the DAP considered as SAVINGS ?

No. They are not SAVINGS and therefore, its use in the DAP violates
Section 25 [5] Art. VI of the Constitution.

74. What are the requisites before appropriated funds may be validly
transferred under Section 25 [5] Art. VI of the Constitution?

The requisites are:

1. There must be a law authorizing the President, Senate President,


Speaker of the House of Representatives, Chief Justice and heads of
the Constitutional Commissions to TRANSFER FUNDS WITHIN
THEIR RESPECTIVE OFFICES;

2. The funds to be transferred are savings generated from the


appropriations for their respective offices; and
26

3. The purpose of the transfer is to augment an item in the general


appropriations law for their respective offices. (ARAULLO VS.
BENIGNO SIMEON C. AQUINO III, et al., GR No. 209287, July 1,
2014)

75. Are the unreleased appropriations and unobligated allotments


may be considered savings to be used for DAP purposes before the end of
the fiscal year?

No. (ARAULLO VS. BENIGNO SIMEON C. AQUINO III, et al., GR


No. 209287, July 1, 2014)

76. What is known as the “cross-border augmentations” or “cross-


border transfers”? Is it allowed by the Constitution?

It is the transfer of savings from one department to the other like


savings in the executive department “crossing its borders” and given to the
legislative department under the guise of augmentation of a deficient item
or items in the latter’s budget. This is what is exactly prohibited by Section
25 [5] of Article VI. (ARAULLO VS. BENIGNO SIMEON C. AQUINO III, et
al., GR No. 209287, July 1, 2014)

77. 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)

78. 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)

79. The President of the Philippines, by Administrative Order,


mandates the “ADOPTION OF A NATIONAL COMPUTERIZED
27

IDENTIFICATION REFERENCE SYSTEM” and appropriating funds therefor?


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.

80. 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.

81. Is President Gloria Macapagal Arroyo a de jure or a de facto


President when she took over President Joseph Estrada in January 2001?
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.

82. 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?
28

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. (IN RE VALENZUELA
& IN RE: JUDGE VALLARTA. November, 1998)

However, in the case of ARTURO DE CASTRO VS. JUDICIAL AND


BAR COUNCIL, G.R. No. 191032, March 17, 2010 , a divided Supreme Court
allowed President Arroyo to appoint a new Chief Justice within the prohibited
period by holding that “the prohibition under Section 15, Article VII does not
apply to appointments to fill a vacancy in the Supreme Court or to other
appointments to the Judiciary”.

Note, however, that while nine (9) justices voted to allow the President
to appoint the Chief Justice during the prohibited period, only five (5)
justices voted to reverse IN RE VALENZUELA & IN RE: JUDGE VALLARTA.
As such, the President is not allowed to make any other appointments in
the judiciary during said period, except the Chief Justice. IS THE
APPOINTMENT OF THE CHIEF JUSTICE MADE AS AN EXCEPTION IN
SECTION 15, ART. VII?

83. 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”.

84. 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,
29

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.

85. May the President appoint a Chief Justice within the prohibited
period under Section 15, Art. VII of the Constitution?

Yes because the prohibition applies only to the Executive Department.


(ARTURO DE CASTRO VS. JBC, MARCH 17, 2010 & APRIL 20, 2010 ON THE
MOTION FOR RECONSIDERATION. [Note, however, that only five justices
voted on the issue on whether the President could appoint justices and judges
lower than the Chief Justice. Therefore, the doctrine in IN RE VALENZUELA &
IN RE VALLARTA, 298 SCRA 408 is still applicable]

86. Must the Commissioner of Customs be subjected to confirmation


by the Commission on Appointments considering the importance of his
position?

No because he does not fall under the 1 st sentence of Section 16, Art. VII
of the Constitution. (SARMIENTO VS. MISON, 156 SCRA 549)

87. Shall the new Bangko Sentral Governor be required to be


confirmed by the Commission on Appointments as the law creating it
requires?

No. Congress could not add to the list of officials subject of confirmation
by the Commission on Appointments under the 1 st sentence of Section 16, Art.
VII of the Constitution. (TARROSA VS. SINGSON, May 25, 1994; CALDERON
VS. CARALE, April 23, 1992). Congress may not add the officials subject of
confirmation by the Commission on Appointments in Section 16 [First
Sentence], Art. VII of the Constitution.

88. May the President validly appoint the DOTC Assistant Secretary
Maria Elena Bautista as Acting Manager of MARINA which is under DOTC?

No. The same falls under the prohibition on multiple positions of officials in
the executive department under Section 13, Art. VII of the Constitution. (DENNIS
FUNA VS. ERMITA & MARIA ELENA BAUTISTA, February 11, 2010)
30

89. 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 (RANDY
DAVID VS. ARROYO, G.R. No. 171396, May 3, 2006).

90. 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)

91. May the President validly require all officers and employees
under the executive department to maintain an ID system 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.

92. 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).

93. What is the power of 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 the authority of the President on this matter. [1] authority
to impound given by Congress, either expressly or impliedly; [2] the executive
power drawn from his power as the commander-in-chief; and [3] the faithful
31

execution clause of the Constitution under Section 17, Art. VII of the
Constitution. (PHILCONSA VS. ENRIQUEZ, 235 SCRA 506)

94. 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.

95. May the President under the 1987 Constitution validly issue
decrees “which shall form part of the laws of the land” after declaring a
state of national emergency but did not declare martial law. 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 businesses 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
32

that “[t]he legislative power shall be vested in the Congress of the Philippines
which shall consist of a Senate and a House of 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 which shall
enumerate the said “businesses affected with national interest”.

96. May the President validly declare a State of National Emergency


in the Province of Maguindanao without a law enacted by Congress in
accordance with Section 23 [2], Art. VI of the Constitution?

Yes because the calling out the armed forces is within the President’s
power under the 1st Section of Section 18, Art. VII of the Constitution. (ZALDY
AMPATUAN VS. PUNO, June 7, 2011)

96-a. May the President validly declare martial law throughout


Mindanao due to “terrorism” perpetrated by the Maute Group, not rebellion
or invasion in accordance with Section 18, Art. VII of the Constitution?

Yes. This is so because Terrorism neither negates nor absorbs rebellion.


Rebellion is subsumed under the crime of terrorism which has a broader source.
Rebellion is only one of the means by which terrorism can be committed.
(EDCEL LAGMAN VS. EXECUTIVE SECRETARY, GR No. 231658, July 4,
2017.

96-b. Is a Joint Session of the Senate and House of Representatives


required in case of extension of martial law by the President?

No. Section 18, Art. VII requires Joint Session only if Congress will
REVOKE the declaration of martial law, not if they will extend. (PADILLA VS.
CONGRESS OF THE PHILIPPINES, GR NO. 231671, July 25, 2017).

97. Is former President Joseph Estrada qualified to run for Mayor of


the City of Manila as a result of his conviction for Plunder with “accessory
penalties of civil interdiction during the period of sentence and perpetual absolute
disqualification” despite the pardon extended to him by former President Gloria
Arroyo?

Yes because the pardon extended to him was absolute. The power of the
President to extend pardon could not be limited by Section 40 of the Local
Government Code nor Section 12 of the Omnibus Election Code. There are only
three (3) restrictions on the pardoning power of the President. These are:

 impeachment cases;
 cases that have not yet resulted in a final conviction; and
33

 cases involving violations of election laws, rules and regulations in which


there was no favorable recommendation coming from the COMELEC.

-under Section 19, Art. VII of the Constitution. ( ATTY. ALICIA RISOS-
VIDAL VS. COMMISSION ON ELECTIONS AND JOSEPH EJERCITO
ESTRADA, GR No. 206666, JANUARY 21, 2015)

98. 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.

99. 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, so that a declaration thereon would
be of no practical use or value. Generally, courts decline jurisdiction over such
case 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. )

100. Define locus standi.

Locus standi is defined as “a right of appearance in a court of justice on a


given question.” In private suits, standing is governed by the “real-parties-in
34

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.” Succinctly
put, the plaintiff’s standing is based on his own right to the relief sought.

101. What are the tests of locus standi in the Philippines?

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, 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, later reaffirmed in Tileston v. Ullman. 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, 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, Manila Race Horse
Trainers’ Association v. De la Fuente, Pascual v. Secretary of Public Works and
Anti-Chinese League of the Philippines v. Felix.

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, 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, 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,
35

members of Congress, and civic organizations to prosecute actions involving the


constitutionality or validity of laws, regulations and rulings.

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, 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, 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, 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, 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. the cases involve constitutional issues;

2. for taxpayers, there must be a claim of illegal disbursement of


public funds or that the tax measure is unconstitutional;

3. for voters, there must be a showing of obvious interest in the


validity of the election law in question;

4. for concerned citizens, there must be a showing that the issues


raised are of transcendental importance which must be settled early;
and

5. for legislators, there must be a claim that the official action


complained of infringes upon their prerogatives as legislators.
36

Significantly, recent decisions show a certain toughening in the Court’s


attitude toward legal standing.

In Kilosbayan, Inc. v. Morato, 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 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, 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, 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, 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.

102. 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
37

Section 17, Article VII in the absence of an emergency powers act passed by
Congress.

103. What are the limitations of the President’s power of executive


clemency?

The same is not available in cases of [1] impeachment as well as [2]


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). [3] It is not also available unless there is already
conviction by final judgment if the one to be exercised are those
enumerated in the first paragraph of Section 19, Art. VII of the Constitution.
(Atty. Vidal vs. COMELEC & JOSEPH ESTRADA, G. R. No. 206666, January
21, 2015)

104. Was the pardon extended to former President Joseph Estrada


conditional or absolute which would qualify him to be a candidate for
Mayor in the City of Manila wherein one of the “whereas clauses” provides
that “ WHEREAS, JOSEPH EJERCITO ESTRADA HAS PUBLICLY
COMMITTED TO NO LONGER SEEK ANY ELECTIVE POSITION OR
OFFICE”?

Yes because the said whereas clause is not controlling but the phrase “HE
IS HEREBY RESTORED TO HIS CIVIL AND POLITICAL RIGHTS”. (Atty. Vidal
vs. COMELEC & JOSEPH ESTRADA, G. R. No. 206666, January 21, 2015)

105. 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.

[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
38

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.

106. Is it required for the person applying for amnesty to admit his
guilt before his amnesty application can 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.

107. 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, as well as to receive backpay for lost
earnings and benefits.

108. 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.
39

109. 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 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.

110. 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.

111. 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. (Section 1, 2 nd paragraph, Art. VIII of the
Constitution)

112. May judicial power be exercised by the Supreme Court in cases


involving the 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 contests involving the election, returns and
qualifications of the members of the House of Representatives?
40

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. HRET &
PINEDA)

113. 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).

114. 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 appropriated for the previous
year and, after approval, shall be automatically and regularly released.

115. 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.
41

Finally, dismissal of judges and disbarment of lawyers are also decided by


the Supreme Court en banc.

116 . 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.
42

(6) Appoint all officials and employees of the judiciary in


accordance with the civil service law.

117. 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.

118. 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)

119. 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)

120. Is the declaration of the DAP as unconstitutional covered by the


“operative fact” doctrine?

Yes. Its application to DAP proceeds from equity and fair play. The
consequences resulting from the DAP and its related issuances could not
be ignored or could no longer be undone. (ARAULLO VS. BENIGNO
SIMEON C. AQUINO III, et al., GR No. 209287, July 1, 2014). Otherwise,
the executive department and the offices under it could be required to
undo everything they have implemented in good faith under the DAP. Thar
scenario would be enourmously burdensome for the government since
the DAP yielded undeniably positive results that enhanced the economic
welfare of the country. To count the positive results like public
infrastructure, roads, bridges, homes for the homeless, hospitals,
classrooms and the like may be impossible but not to apply the operative
fact doctrine for the DAP could literally cause the physical undoing of such
43

worthy results by destruction, and would result in most undesirable


wastefulness.

120-a. Is Section 23, RA 9165 which does not allow plea bargaining in
drugs cases constitutional?

It is unconstitutional. It violates Section 5 (5) of Art. VIII of the


Constitution which gives the Supreme Court the power to promulgate rules
in connection with the practice and procedure in all courts. (ESTIPONA
VS. JUDGE LOBRIGO, August 15, 2017).

121. “A”, an employee of the Sandiganbayan, was found guilty of


dishonesty by the Civil Service Commission and ordered dismissed
from the government service because it was shown that another
person took the Civil Service Examination for him that is why he
passed. He was given the opportunity to answer said charge but
failed to do so. Decide.

The Decision of the Civil Service Commission is not valid. Only the
Supreme Court has the power remove officials and employees in the
judiciary under its power enunciated in Section 6, Art. VIII of the
Constitution. (CSC VS. ANDAL, December 16, 2009)

122. 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.

123. 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

124.. May the Congress of the Philippines be represented by a


Member of the House of Representatives and a member of the Senate in
the Judicial and Bar Council separately?

No. Under Section 8, Art. VIII of the Constitution, the Judicial and Bar
Council shall have seven (7) members only and the Congress of the Philippines
is entitled to only one (1) member. As such, the House of Representatives shall
send only one (1) member in the Judicial and Bar Council. (FRANCISCO
CHAVEZ VS. JUDICIAL AND BAR COUNCIL, July 18, 2012 and April 13,
2013)
44

124-a. Is the “clustering of nominees” by the JBC of several


vacancies in the Sandiganbayan valid?

No. The JBC cannot restrict the President’s appointing power. As long as
the President appoints someone nominated by the JBC, the appointment is valid.
(AGUINALDO VS PRES. BENIGNO AQUINO III, November 29, 2016;
February 21, 2017 and August 8, 2017)

125. 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 [1] during good behavior until they
reach the age of 70 years or [2] 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.

126. May an RTC Judge be appointed as a member of the Provincial


Peace and Order Council of the place where he holds office?

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)

127. 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)

128. 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
45

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.

129. 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)

130. 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.

131. 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.

132. 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 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.
46

133. May a government employee under “probationary period”


entitled to security of tenure? May he be dismissed without just cause and
due process?

No. The CSC position that a civil service employee does not enjoy
security of tenure during his 6-month probationary period is contrary to the
Constitution and the Civil Service Law itself. Section 3 (2) Article 13 of the
Constitution guarantees the rights of all workers not just in terms of self-
organization, collective bargaining, peaceful concerted activities, the right to
strike with qualifications, humane conditions of work and a living wage but also to
security of tenure, and Section 2(3), Article IX-B is emphatic in saying that, "no
officer or employee of the civil service shall be removed or suspended
except for cause as provided by law."

Consistently, Section 46 (a) of the Civil Service Law provides that “no
officer or employee in the Civil Service shall be suspended or dismissed
except for cause as provided by law after due process.”

Our Constitution, in using the expressions “all workers” and “no officer or
employee,” puts no distinction between a probationary and a permanent or
regular employee which means that both probationary and permanent employees
enjoy security of tenure. Probationary employees enjoy security of tenure in the
sense that during their probationary employment, they cannot be dismissed
except for cause or for failure to qualify as regular employees . (CSC vs.
Magnaye, April 23, 2010)

134. 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)

135. 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.

136. 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
47

WITH ANOTHER WHICH IT BELIEVES TO BE MORE QUALIFIED. (BARROZO


VS. CSC & VALENTINO JULIAN)

137. 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.

138. 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.

139. 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)

140. 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)

141. 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:
48

a. Deputize law enforcement agencies, including the AFP..


b. Register political parties, except religious groups
c. File complaints for violation of election laws
d. Regulate the enjoyment or utilization of all franchises for the
operation of transportation and other public utilities, media of
communication..

142. 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 appeallable.

143. Where must election protest cases involving city and provincial
officials be filed?

It must be filed with the COMELEC, not with the courts.

144. May the COMELEC EN BANC decide on Appeal the Decision of


RTC Agoo, La Union, regarding the election protest involving candidates
for Municipal mayor because the Division where the appeal was raffled
could not decide it due to the inhibition of its members resulting in no
quorum therein?

No. The COMELEC en banc could only decide Motions for


Reconsideration from a Decision of a Division of the COMELEC.(SANDRA
ERIGUEL VS. COMELEC, February 26, 2010)

145. 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.

146. May the Secretary of Environment and Natural Resources


validly reverse and set aside the “small-scale mining permit” issued by a
Provincial Governor without violating Section 4, Art. X of the Constitution
49

which provides that the President shall have general supervision only, not
control, over local governments?

Yes. Paragraph 1 of Section 2, Article XII (National Economy and


Patrimony) of the Constitution provides that “[t]he exploration, development
and utilization of natural resources shall be under the full control and supervision
of the State “. Moreover, paragraph 3 of Section 2, Article XII of the
Constitution provides that “[t]he Congress may, by law, allow small-scale
utilization of natural resources by Filipino citizens x x x.” Pursuant to Section
2, Article XII of the Constitution, R.A. No. 7076 or the People's Small-Scale
Mining Act of 1991, was enacted, establishing under Section 4 thereof a People's
Small-Scale Mining Program to be implemented by the DENR Secretary in
coordination with other concerned government agencies. (LEAGUE OF
PROVINCES OF THE PHILIPPINES vs. DEPARTMENT OF ENVIRONMENT
and NATURAL RESOURCES and HON. ANGELO T. REYES, in his capacity
as Secretary of DENR, GR. No. 175368, APRIL 11, 2013)

147. 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, 475 SCRA 290, 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.

148. 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, 295 SCRA 157)

149. 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 and he took over the said
position by way of succession in accordance with the Local Government
Code. May he validly run again for Municipal Councilor during the May,
2007 elections?

Yes, because there was “INVOLUNTARY RENUNCIATION” of his


3rd terms. It was not voluntary which could have resulted in the counting of his
election in 2004 as his 3rd term. He was forced by law to vacate his position as
Municipal Councilor. (MONTEBON VS. COMELEC, April 8, 2008)
50

150. 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)

151. Hagedorn was elected and served for three (3) consecutive
terms as Mayor of Puerto Princesa City but did not run during his
supposed 4th term. However, after just a year in office of his successor, a
recall election was held. May Hagedorn run in the recall elections without
violating the 3-consecutive rule provision of the Constitution?

Yes. An elective official, who has served for three consecutive terms and
who did not seek the elective position for what could be his fourth term, but later
won in a recall election, had an interruption in the continuity of the official’s
service. For, he had become in the interim, i.e., from the end of the 3rd term up to
the recall election, a private citizen for more than 1 year. (Adormeo vs.
COMELEC, February 4, 2002 and Socrates vs. COMELEC and Edward
Hagedorn, , November 12, 2002).

152. For four (4) successive regular elections, namely, the 2001,
2004, 2007 and 2010 national and local elections, Abundo vied for the
position of municipal mayor of Viga, Catanduanes. In both the 2001 and
2007 runs, he emerged and was proclaimed as the winning mayoralty
candidate and fully served the corresponding terms as mayor. In the 2004
elections, however, the Viga municipal board of canvassers initially
proclaimed as winner one Jose Torres (Torres), who, in due time,
performed the functions of the office of mayor. Abundo protested Torres’
election and proclamation. Abundo was eventually declared the winner of
the 2004 mayoralty electoral contest, paving the way for his assumption of
office starting May 9, 2006 until the end of the 2004-2007 term on June 30,
2007, or for a period of a little over one year and one month. May he validly
run for the same position in the May, 2010 elections?

Yes. He has not served 3-consecutive terms. The consecutiveness


of what otherwise would have been Abundo’s three successive, continuous
mayorship was effectively broken during the 2004- 2007 term when he was
initially deprived of title to, and was veritably disallowed to serve and occupy, an
office to which he, after due proceedings, was eventually declared to have been
the rightful choice of the electorate.

The three-term limit rule for elective local officials, a disqualification rule, is
found in Section 8, Article X of the 1987 Constitution, which provides:
51

Sec. 8. The term of office of elective local officials, except


barangay officials, which shall be determined by law, shall be three
years and no such official shall serve for more than three
consecutive terms.

Voluntary renunciation of the office for any length of time


shall not be considered as an interruption in the continuity of his
service for the fullterm for which he was elected. (Emphasis
supplied.)

To constitute a disqualification to run for an elective local office pursuant to


the aforequoted constitutional and statutory provisions, the following requisites
must concur.

(1) that the official concerned has been elected for three
consecutive
terms in the same local government post; and

(2) that he has fully served three consecutive terms. (MAYOR


ABELARDO ABUNDO., SR. VS. COMELEC & ERNESTO VEGA,
G.R. No. 201716, JANUARY 08, 2013)

153. He was elected for 3-consecutive terms as Municipal Mayor of Digos,


Davao del Sur. Her served 9 years as such. Before the end of his 3 rd term,
Digos was converted into a component city. May he run again for City
Mayor?

No. The abolition of an elective local office due to the conversion of


a municipality to a city does not, by itself, work to interrupt the incumbent official’s
continuity of service. He is barred by the 3-consecutive rule. (Latasa vs.
COMELEC, December 10, 2003).

154. He was elected for 3-consecutive terms but was the subject of a
preventive suspension by the Ombudsman for several months during one
of his terms. Is he qualified for a 4th term?

No. Preventive suspension is not a term-interrupting event as the elective


officer’s continued stay and entitlement to the office remain unaffected during the
period of suspension, although he is barred from exercising the functions of his
office during this period (Aldovino, Jr. vs. COMELEC, December 23, 2009).

155. A candidate for mayor was elected to 3-consecutive terms. In


one of his terms 3 terms, however, he was proclaimed winner but he was
ousted from office due to an election protest several months before the
end of his term. May he run again for a “supposed” 4th term?

Yes. When a candidate is proclaimed as winner for an elective position


and assumes office, his term is interrupted when he loses in an election protest
and is ousted from office, thus disenabling him from serving what would
52

otherwise be the unexpired portion of his term of office had the protest been
dismissed. The break or interruption need not be for a full term of three years or
for the major part of the 3-year term; an interruption for any length of time,
provided the cause is involuntary, is sufficient to break the continuity of service.
(Lonzanida vs. COMELEC, 311 SCRA 602 and Dizon vs. COMELEC )

156. Mayor Morales was elected for 3 consecutive terms and had
FULLY SERVED said 3 terms. However, in one of said terms, his opponent
protested and was declared the real winner, not Morales. Unfortunately,
said decision removing Morales from office became final only after he had
fully served the same. May he run again for a “4 th term”?

No more. The case of Lonzanida is not applicable because he was


not able to serve the full term and his opponent took over the rest of one of his
terms thus “disenabling” him to full serve 3 consecutive terms. When an official is
defeated in an election protest and said decision becomes final after said official
had served the full term for said office, then his loss in the election contest does
not constitute an interruption since he has managed to serve the term from start
to finish. His full service, despite the defeat, should be counted in the application
of term limits because the nullification of his proclamation came after the
expiration of the term (Ong vs. COMELEC, January 23, 2006 and Rivera vs.
COMELEC & MARINO “BOKING “ MORALES, May 9, 2008).

157. If the mayor-elect is declared inieligible as a result of the fact


that after re-acquiring his Philippine citizenship, he again used his US
Passport, who shall be declared the new Mayor? The Vice mayor or the
second placer?

Since the votes cast for an ineligible candidate are considered stray votes,
then the second placer shall be declared as the duly elected mayor since he
obtained the highest number of valid votes during the elections. (MAQUILING
VS. COMELEC and ARNADO, G.R. No. 195649, April 16, 2013)

158. After his disqualification in the 2010 elections because of his


use of his US Passport after he executed an Affidavit of Repatriation,
Arnado again executed another Affidavit of Repatriation and did not use
anymore his US Passport, is he now qualified to be elected Municipal
Mayor of Kauswagan, Lanao del Norte for the May, 2013 elections?

No. in order to be qualified for any elective position, the candidate must
have total and undivided allegiance to the Republic of the Philippines. (ARNADO
VS. COMELEC, August 18, 2015)

159. What is the “condonation theory” or the “forgiveness doctrine”


as applied to local government officials?

It simply means that the administrative liability of elected local officials


committed in their previous term is deemed forgiven if they were reelected by
htheir constituents in the next election. However, their criminal liability for the said
53

acts is not affected.(AGUINALDO VS. HON. LUIS SANTOS, G. R. No. 94115,


August 21, 1992)

160. 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

Please take note of the contrary rulings in PAREDES VS. EXECUTIVE


SECRETARY, 128 SCRA 6 and LOPEZ VS. METRO MANILA COMMISSION,
136 SCRA 633)

161. Is the CONDONATION Or FORGIVENESS or AGUINALDO


DOCTRINE still applicable for local officials who won re-election?

No more. Election is not a mode of condoning an administrative offense.


There is no legal or statutory basis. Administrative offense committed before re-
election can still proceed and re-elected official punished if found liable.
(MORALES VS. BINAY, JR., November 10, 2015)

161-a. Are the statement of assets and liabilities and , Personal Data
Sheet of Justices and Judges confidential and shall not be released to the
public?

No. In the case of IN RE: REQUEST OF THE PHILIPPINE CENTER FOR


INVESTIGATIVE JOURNALISM (PCIJ) FOR THE 2008 STATEMENT OF
ASSETS AND LIABILITIES AND NET WORTH (SALN) AND PERSONAL DATA
SHEETS OF THE SUPREME COURT AND COURT OF APPEALS JUSTICES,
A.M. No. 0908-07-CA, June 13, 2012, the Supreme Court held that they could
be given to requesting parties subject to the limitations and prohibitions provided
in R.A. No. 6713, its implementing rules and regulations, and the following
guidelines:

1. All requests shall be filed with the Office of the Clerk of Court
of the Supreme Court, the Court of Appeals, the
Sandiganbayan, the Court of Tax Appeals; for the lower courts,
with the Office of the Court Administrator; and for attached
agencies, with their respective heads of offices.
2. Requests shall cover only copies of the latest SALN, PDS and
CV of the members, officials and employees of the Judiciary,
and may cover only previous records if so specifically requested
and considered as justified, as determined by the officials
mentioned in par. 1 above, under the terms of these guidelines
and the Implementing Rules and Regulations of R.A. No. 6713.
54

3. In the case of requests for copies of SALN of the Justices of


the Supreme Court, the Court of Appeals, the Sandiganbayan
and the Court of Tax Appeals, the authority to disclose shall be
made by the Court En Banc.
4. Every request shall explain the requesting party’s specific
purpose and their individual interests sought to be served; shall
state the commitment that the request shall only be for the
stated purpose; and shall be submitted in a duly accomplished
request form secured from the SC website. The use of the
information secured shall only be for the stated purpose.
5. In the case of requesting individuals other than members of
the media, their interests should go beyond pure or mere
curiosity.
6. In the case of the members of the media, the request shall
additionally be supported by proof under oath of their media
affiliation and by a similar certification of the accreditation of
their respective organizations as legitimate media practitioners.
7. The requesting party, whether as individuals or as members of
the media, must have no derogatory record of having misused
any requested information previously furnished to them.
The requesting parties shall complete their requests in accordance with
these guidelines. The custodians of these documents (the respective Clerks of
Court of the Supreme Court, Court of Appeals, Sandiganbayan, and Court of Tax
Appeals for the Justices; and the Court Administrator for the Judges of various
trial courts) shall preliminarily determine if the requests are not covered by
the limitations and prohibitions provided in R.A. No. 6713 and its implementing
rules and regulations, and in accordance with the aforecited guidelines.
Thereafter, the Clerk of Court shall refer the matter pertaining to Justices to the
Court En Banc for final determination.
This is in accordance with the constitutional provision on public
accountability and transparency under Section 1, Art. XI and Section 7, Art. III or
the right to information on matters of public concern as well as access to official
records…

162. What are the grounds for impeachment?

Only for “Culpable violation of the constitution, treason, bribery, graft and
corruption, other high crimes, or betrayal of public trust”.

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

Judgment in cases of impeachment shall not extend further than removal


from office and disqualification to hold any other office under the Republic of the
Philippines but shall nevertheless be liable to prosecution, trial and punishment
according to law.
55

164. 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.”

165. Does the prohibition under Section 3 [5] of Art. XI applies when
the 1st impeachment complaint was filed on July 22, 2010 and the 2 nd on
July 27, 2010 against the same impeachable officer though both complaints
were referred to the appropriate committee on the same day?

No. What is prohibited is having more than one impeachment proceedings


within a period of one (1) year. Even if there are several cases filed on different
dates but simultaneously tried against the said impeachable officer, there is no
prohibition to Section 3 [5] of Art. XI. (GUTIERREZ VS. HOUSE OF
REPRESENTATIVES COMMITTEE ON JUSTICE, ET AL., February 15, 2011)

165-a. May the Chief Justice of the Supreme Court be removed from
office through a Quo Warranto Petition instead of an impeachment
proceedings under Section 2, Art. XI of the Constitution?

Yes. Impeachment is premised on the fact that the election or appointment


of a public official is valid. The same does not apply if the appointment is void
from the beginning because the appointee is not qualified for the position he or
she is presently occupying. (REPUBLIC OF THE PHILIPPINES VS. MA.
LOURDES SERENO, May 11, 2018)

166. 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)

167. 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 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.”
56

168. 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).

169. 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.

170. 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 members of 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 Salle but they
should be given transfer credentials so that they may enroll in another school.

171. Are students entitled to cross-examine the witnesses against


them in an administrative case to satisfy their right to due process?

No. What is important is that they were given the opportunity to be heard.
DE LA SALLE UNIVERSITY VS. CA (December, 2008).

172. 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
57

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).

173. 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.

174. 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)

175. 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.

176. Are local governments also entitled to invoke immunity from


suit?

Yes.

177. 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)

178. May a local government validly invoke state immunity from suit
in a case where there is a contract entered into with a private corporation
for the delivery of trucks to the said municipality? May the court trying the
same validly issue a writ of preliminary attachment against the
municipality?
58

The municipality may not validly invoke its immunity from suit in a case
where it entered into a contract with a private corporation since it is deemed to
have waived state immunity from suit. However, unlike in cases of ordinary
defendants, the Trial Court may not validly issue a writ of preliminary attachment
against the properties of the municipality even if the grounds under Section 1,
Rule 57 of the 1997 Rules of Civil Procedure are present. Suability is different
from liability. (MUNICIPALITY OF HAGONOY, BULACAN VS. JUDGE
DUMDUM, JR., RTC 7, CEBU CITY, March 22, 2010)

179. 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)
59

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)
f. to promote the economic security of the people. (ICHONG VS.
HERNANDEZ, 101 Phil. 11155)

3. 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)

4. 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
60

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)

5. 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.)

2-d. requisites of a valid ordinance;

1. Must not be contrary to the Constitution or the laws;


2. Must not be partial or discriminatory;
3. it must not be unfair oppressive;
4. It must not be unreasonable;
5. Must not prohibit but may regulate trade;
6. it must be general and consistent with public policy. (CITY OF MANILA
VS. LAGUIO, 455 SCRA 308, WHITE LIGHT CORPORATION VS. CITY OF
MANILA, January 20, 2009)

6. 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
61

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)

7. What are the tests for a valid exercise of police power

a. the interests of the public, not mere particular class, require the
exercise of police power; (LAWFUL SUBJECT)
b. the means employed is reasonably necessary for the
accomplishment of the purpose and not unduly oppressive to
individuals. (LAWFUL MEANS). In short, the end does not
justify the means.

8. 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)

9. 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.

10. 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.

11. What are the requisites of due process before administrative


bodies?

As held in TIBAY VS. CIR, 69 Phil. 635, the requisites are:

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


62

b. the tribunal must consider the evidence presented;


c. the decision must have something to support itself;
d. the evidence must be substantial;
e. the decision must be based on the evidence presented during the
hearing;
f. the tribunal or body must act on its own independent consideration
of the law or facts;
g. the board or body shall in all controversial questions, render its
decision in such a manner that the parties to the proceedings can
know the various issues involved.

12. 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).

13. Consulta was represented by one “Atty. Jocelyn Reyes” from


arraignment up to the time that the prosecution rested its case. He was
represented by another lawyer when he presented his evidence. It turned
out that “Atty. Reyes” was not a member of the Bar. May he validly claim
violation of his right to due process and have a new trial like in “Delgado”?

No more. Even if he was not represented by a non-lawyer 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. All the
requisites of judicial due process are present. (CONSULTA VS.
PEOPLE, G.R. No. 179642, February 12, 2009)

14. Mayor Maliksi was furnished copies of the Resolutions of the


COMELEC directing his opponent, who appealed the decision of the RTC
against him, to deposit amounts for the decrypting, copying and printing of
the ballot images from CF Cards. Thereafter, the COMELEC unseated
Mayor Maliksi. He went to the Supreme Court and claimed violation of his
right t to due process because he was not informed of the dates when the
“decryption, copying and printing” of the ballot images.

Yes, his right to due process was violated. HE WAS NOT INFORMED OF
THE DATES WHEN THE “decryption, copying and printing” of the ballot images
took place.

15. Is Senator Jinggoy Estrada’s right to due process of law violated


when the Ombudsman did not furnish him copies of the Counter-Affidavits
of his co-respondents in the graft and plunder cases against him?
63

No. There is no law or rule which requires the Ombudsman to furnish a


respondent with copies of the counter-affidavits of his co-respondents. Sen.
Estrada claims that the denial of his Request for the counter-affidavits of his co-
respondents violates his constitutional right to due process. Sen. Estrada,
however, fails to specify a law or rule which states that it is a compulsory
requirement of due process in a preliminary investigation that the
Ombudsman furnish a respondent with the counter-affidavits of his co-
respondents. Neither Section 3(b), Rule 112 of the Revised Rules of Criminal
Procedure nor Section 4(c), Rule II of the Rules of Procedure of the Office of the
Ombudsman supports Sen. Estrada’s claim. The right is merely statutory, not
constitutional in preliminary investigation of criminal complaints before the
Prosecutor’s Office or Office of the Ombudsman. (SENATOR JINGGOY
EJERCITO vs. OFFICE OF THE OMBUDSMAN, G.R. Nos. 212140-41,
January 21, 2015)

16. How about if the case is an administrative case? Is a respondent


entitled to be furnished copies of the Counter-Affidavits of his co-
respondents?

Yes. (Office of the Ombudsman v. Reyes) , an administrative case, in


which a different set of rules of procedure and standards apply. Sen. Estrada’s
Petition, in contrast, involves the preliminary investigation stage in a criminal
case. Rule III on the Procedure in Administrative Cases of the Rules of
Procedure of the Office of the Ombudsman applies in the Reyes case, while Rule
II on the Procedure in Criminal Cases of the Rules of Procedure of the Office of
the Ombudsman applies in Sen. Estrada’s Petition. In both cases, the Rules of
Court apply in a suppletory character or by analogy.

In the Reyes case, failure to furnish a copy of the counter-affidavits


happened in the administrative proceedings on the merits, which resulted
in Reyes’ dismissal from the service. In Sen. Estrada’s Petition, the denial of
his Request happened during the preliminary investigation where the only issue
is the existence of probable cause for the purpose of determining whether an
information should be filed, and does not prevent Sen. Estrada from requesting a
copy of the counter-affidavits of his co-respondents during the pre-trial or even
during the trial. We should remember to consider the differences in adjudicating
cases, particularly an administrative case and a criminal case:

Note that in administrative cases, the same may be decided on the merits
immediately based on said pleadings unlike in preliminary investigations
where the only issue is the existence of probable cause before trial could
proceed where all those evidence are available to the respondent.

17. Is there a violation of the accused’s right to due process when


his motion for a new trial because he was “accorded grossly insufficient legal
assistance by his former lawyer” was denied by the Sandiganbayan?

No. The petitioner was given an opportunity to be heard during


trial. This opportunity to be heard is the essence of due process. While petitioner
64

claims that he was incorrectly advised by his former counsel that the presentation
of evidence is no longer necessary, this unfortunate mistake cannot qualify as
gross negligence or incompetence that would necessitate a reopening of the
proceedings. In fact, not once did petitioner refute, or at the very least, address
the Sandiganbayan’s finding that he had expressly consented to the waiver of the
presentation of evidence by affixing his signature as conformity to the
manifestation submitted by his former (EDELBERT C. UYBOCO vs. PEOPLE
OF THE PHILIPPINES, G.R. No. 211703, December 10, 2014 )

18. Is the accused’s right to due process of law violated when the
court denied his motion for reconsideration and/or new trial based on
former counsel’s mistake who categorically admitted that he did not know
of petitioner’s ailment and thus did not make the proper manifestations in
Court?

No. . While his counsel represents him, the latter’s mistakes should not
deprive him of his day in court to present his side. (ALEJANDRO C.
ALMENDRAS, JR. vs. ALEXIS C. ALMENDRAS, G.R. No. 179491, January
14, 2015.)
.

19. What are the requisites of procedural due process in disciplinary


actions against students?

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.

20. What are the requisites of due process before a private


employee may be dismissed from his work?

The requisites of Due Process before the NLRC are:

1. Notice; and
2. Hearing

21. Is due process satisfied in administrative proceedings if the


respondent was not assisted by counsel?
65

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)

22. 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)

23. 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 he 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)

24. Is there a violation of the right to due process if members of a


faction of the Liberal Party were expelled from said party in a meeting
where they were not even notified nor given the chance to be heard?

No. Due process could be invoked only before tribunals created by the
State through which governmental acts or functions are performed. The
right to due process guards against unwarranted encroachment by the
State into fundamental rights and cannot be invoked in private
controversies involving private rights. (ATIENZA VS. COMELEC &
MANUEL ROXAS III, ET AL., February 16, 2010)

25. What are the requisites for a valid classification?

As held in People vs. Cayat, 68 Phil. 12, the requisites are:

a. There must be real and substantial distinctions;


b. It must be germane tot he purposes of the law;
c. It must not be limited to existing conditions only; and
d. It must apply equally to all members of the same class.
66

26. 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.

27. 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)

28. 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)

29. Is Executive Order No. 1, Series of 2010 creating the Philippine


Truth Commission of 2010 to investigate “officers and employees of
the previous administration for graft and corruption” constitutional?

It is unconstitutional for violation of the equal protection clause. It singles


out the officials of the previous administration only even though there are
also alleged graft and corruption in other administrations before that of
President Arroyo. (BIRAOGO VS. PHILIPPINE TRUTH COMMISSION,
December 7, 2010)

30. Is there a violation of the equal protection clause if appointed


government officials are deemed automatically resigned upon the
filing of their certificates of candidacy while elected officials may
67

continue discharging the duties of their office despite the filing of


their COC’s?

No violation of their right to equal protection because there is real and


substantial distinctions. Note that the term of office of Members of
Congress, President and Vice President are mandated by the Constitution
which is up to noon of June 30, 3 years or 6 years after their election and
as such, Congress could not shorten their term by providing that they are
deemed resigned upon the filing of their COC’s..

31. Is there a violation of the equal protection clause if medical


practitioners may not be compelled to perform a reproductive health
procedure by reason of their religious beliefs but provincial health
officers, city or municipal health officers, chiefs of hospitals, , nurses
and midwifes must do it regardless of their religious beliefs by
reason of their offices and they could not be considered as
“conscientious objectors”?

Yes, said provision is violative of the equal protection clause. There


is no real and substantial distinction why medical practitioners could not be
compelled by reason of their religious beliefs while the provincial health
officers, city or municipal health officers, chiefs of hospitals, , nurses and
midwifes could be compelled just because that is their work even if against
their religious beliefs. (IMBONG VS. OCHOA, GR No. 204819, April 8,
2014)

32. Is there a violation of the equal protection clause because the


penalty for online Libel is one degree higher than the penalty for libel
through newspapers, etc.?

No violation. Aside from the fact that fixing the penalties is the prerogative
of Congress, the stiffer penalty is justified because the offender in using
the internet often evades identification and is able to reach far mor victims
or cause greater harm. The higher penalties is proportionate to the evil
sought tro be punished. (DISINI VS. SECRETARY OF JUSTICE, GR No.
203335, February 18, 2014)

33. 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,
68

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 cases.

34. What are the two (2) kinds of probable cause?

The two (2) kinds of probable cause are:

[1] The executive determination of probable cause by the Prosecutor


where he determines whether to file a criminal case in court or not; and

[2] Judicial determination of probable cause to be done by the judge for


the purpose of issuing a warrant of arrest against the accused. (LEVISTE
VS. JUDGE ALAMEDA, August 3, 2010)

35. May the Anti-Terrorism Council issue a warrant of detention


against terrorists or suspected terrorists without violating Section 2, Art.
III of the Constitution which allows only “judges” to issue warrants?

In the cases of [1]


[1] SOUTHERN HEMISPHERE ENGAGEMENT
NETWORK, INC., on behalf of the South-South Network (SSN) for
Non-State Armed Group Engagement, and ATTY. SOLIMAN M.
SANTOS, JR., [2] KILUSANG MAYO UNO (KMU; [3] BAGONG
ALYANSANG MAKABAYAN (BAYAN), [4] KARAPATAN, ALLIANCE
FOR THE ADVANCEMENT OF PEOPLE’S RIGHTS, [5] THE
INTEGRATED BAR OF THE PHILIPPINES (IBP), vs. THE ANTI-
TERRORISM COUNCIL, ET AL., G.R. No. 178552, October 5, 2010 ,
the Supreme Court failed to decide on the constitutionality of the said law
because the petitioners were held to have no legal standing or personality
to sue.

Please note of the questionable provisions of the said law:

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
69

commit terrorism must result from the surveillance under Section 7


and examination of bank deposits under Section 27 pf this Act.

Section 19. Period of Detention in the event of an actual or


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

(NOTE: Under the Human Security Act/Anti-Terrorism


Law, Republic Act No. 9372, Approved on March 6,
2007 and effective on July 15, 2007 (This Law shall
be automatically suspended one (1) month before and
two (2) months after the holding of any election) a
person may be taken into custody by the police if
there is a written authorization by the Anti-Terrorism
Council and such detention may be extended upon
written approval of the Commission of Human Rights
in case of actual or imminent terrorist attack..)

36. May the Municipal Trial Court of Gattaran, Cagayan issue a


search warrant for illegal possession of prohibited drugs
which is within the exclusive original jurisdiction of the
Regional Trial Court to try and decide?

Yes. This is so because Section 2, Art. III of the Constitution


allows a “judge” to issue a search warrant without any distinction
or qualification. (People vs. Judge Edmar Castillo, Jr., Presiding
Judge, Aparri, Cagayan, G. R. No. 204419, November 7, 2017)

37. May the Municipal Trial Court of Gattaran, Cagayan issue a


search warrant for illegal possession of prohibited drugs in
Aparri, Cagayan, which is outside its territorial jurisdiction?

Yes since the Municipality of Gattaran, Cagayan and Aparri,


Cagayan belong to the same Judicial Region. (People vs. Judge
70

Edmar Castillo, Jr., Presiding Judge, Aparri, Cagayan, G. R.


No. 204419, November 7, 2017)

38. 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.

39. 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. customs searches;
2. searches of moving vehicle;
3. seizure of evidence in plain view;
4. consented searches;
5. search incidental to a lawful arrest; and
6. stop and frisk measures. (PEOPLE VS. ARUTA, 288
SCRA 626)

40. 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.

41. May a single search warrant be issued for the crimes of 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)

42. 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 estafa, robbery, theft and qualified theft”.
71

(TAMBASEN VS. PEOPLE, July 14, 1995; PEOPLE VS. CA, 216 SCRA
101)

43. May a judge validly issue a warrant of arrest based only 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 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 determination.

(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.
72

44. 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.

[1]. In connection with the issuance of a SEARCH WARRANT, he must


personally examine the complainant and the witnesses, with searching
questions, face to face. (Bache vs. Judge Ruiz, supra)

[2]. 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

45. 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 on his part? 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).

46. 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;
73

(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.

47. Is the provision of the Online Libel Law which authorizes the DOJ
to restrict or block computer data because in its opinion, the same is
obscene, pornographic, etc.?

The said provision is unconstitutional. It would violate the search and


seizure provision and makes the DOJthe judge, jury and executioner rolled into
one. It also restrains free speech. (DISINI VS. SECRETARY OF JUSTICE, GR
No. 20335, February 18, 2014)

48. May the Iloilo Police arrest or makes a search without warrant
the person disembarking from a ship 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.

49. 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
the policeman arrested the accused-appellant on the basis solely of what
Reynaldo Castro had told him and not because he saw the accused-appellant
commit the crime charged against him. Indeed, the prosecution admitted that
74

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.

50. 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 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)

51. 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)

52. 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.

53. 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
75

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---with a policeman escorting him]) , 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.
accused. (PEOPLE
(PEOPLE VS. GO, 354 SCRA 338)

54. 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 where the alleged “wife” could give a valid consent for
the search of the hotel room of her husband as held by the Supreme Court---
even though it turned out that she was just a “manicurist” of the suspect . 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.

55. 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 AGAINST 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 his apartment’s door without a warrant nor consent of
the occupant therein.

56. The police received an information that accused’s house is


surrounded by fully grown marijuana. Thereafter, the police went to the
place of the accused and it turned out that the information was correct. The
accused was arrested and the police took his pictures infront of his
marijuana plants and other pictures with him after uprooting the same. Is
the seizure of the marijuana plants justified under the “plain view
doctrine”?

No, the seizure is not valid. Nor can it be justified under the plain view
doctrine. In order that the plain view doctrine could be validly applied, the
76

marijuana plants must have been INADVERTENTLY FOUND. In this case, the
policemen went there specifically to look for it. (PEOPLE VS. VALDEZ, 341
SCRA 25)

57. 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).

58. 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)

59. 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.

60. 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
77

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.

61. 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)

62. 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”?

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)

63. 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)

64. 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.

65. Under the Human Security Act/Anti-Terrorism Law, Republic Act


No. 9372, Approved on March 6, 2007 and effective on July 15, 2007, may
78

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.

66. 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:

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:
79

examine or cause the examination of, the deposits, placements,


trust accounts, assets, and records in a bank or financial
institution; and
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.

67. 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. It
violates the right to privacy.

68. What are the two (2) categories of the right to privacy?
80

The two (2) categories are:

1. Decisional privacy which involves the right to independence in


making certain important decisions; and

2. Informational privacy which refers to the interest in avoiding


disclosures on personal matters. (WHALEN VS. ROE, 429 US 589, cited in
DISINI VS. SECRETARY OF JUSTICE, GR No. 20335, February 18, 2014)

69. What are the two (2) aspects of informational privacy?

These are: [1] the right not to have private information disclosed;
and [2] the right to live freely without surveillance and intrusion. DISINI VS.
SECRETARY OF JUSTICE, GR No. 20335, February 18, 2014)

70. 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 strong—can be: “Prohibited
from using any cellular phones, computers, or other means of
communications with people outside their residence.”

71. Is the act of the COMELEC in ordering the Diocese of Bacolod


City to remove its big tarpaulin where it impliedly asked the voters to vote
for the TEAM BUHY or the Senators or Congressmen who opposed the
Reproductive Health Bill and against the members of TEAM PATAY or the
Senators and Congressmen who voted in favor of the Reproductive Health
Bill VALID? (DIOCESE OF BACOLOD VS. COMELEC, G.R. No. 205728,
January 21, 2015)

No, the order violates the freedom of speech on the part of the
Diocese of Bacolod and the other petitioners.

72. Was there violation of the law regulating the size of tarpaulin to
be used during election campaign because the tarpaulin used by ther
Diocese of Bacolod in the TEAM BUHAY AND TEAM PATAY campaign is
bigger than that allowed by the law?

There is no violation because the size of the tarpaulins in this case is


beyond the constitutional powers of the COMELEC to regulate because this is
part of the protected speech of the petitioners WHO ARE NOT CANDIDATES.
DIOCESE OF BACOLOD VS. COMELEC, G.R. No. 205728, January 21, 2015)

73. Distinguish political speech from commercial speech.


81

Political speech refers to speech both intended and received as a contribution to


public deliberation about the same issue fostering informed and civic-minded
deliberation while commercial speech is a speech that does no more than to
propose a commercial transaction. DIOCESE OF BACOLOD VS. COMELEC,
G.R. No. 205728, January 21, 2015)

74. Distinguish content-based regulation from content-neutral


regulation as restrictions to free speech.

Content-based regulation can either be based on the viewpoint of the


speaker or the subject of the expression. Content-based regulations bears a
heavy presumption of invalidity and the Supreme Court had consistently used the
clear and present danger as a measure of its validity or invalidity. A content-
based restraint or censorship refers to restrictions based on the subject matter of
the utterance or speech.

Content-neutral regulation controls merely on the incident of free speech


such as time, place or the manner of the speech. DIOCESE OF BACOLOD VS.
COMELEC, G.R. No. 205728, January 21, 2015)

75. 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)

76. 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
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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.

77. 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)

78. 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 proceedings; [b] must be done in good
faith; and [c] no comments nor remarks shall be made by the writer}

79. 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.
83

80. 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.

81. 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)

82. 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,
84

and Western Police District Chief Gen. PEDRO BULAONG, G.R. No. 169848,
May, 2006)

83. May the City Mayor of Manila validly deny the application for a
rally permit, or to change the venue thereof, if he finds evidence of clear
and present danger in accordance with the JBL Reyes vs. Mayor Bagatsing
doctrine?

Compliance with the Reyes vs. Bagatsing doctrine is no longer enough.


Under the Public Assemble Act, if the Mayor believes in the existence of clear
and present danger, HE MUST FIRST INFORM THE APPLICANT OF THE SAID
EVIDENCE AND GIVE HIIM THE CHANCE TO SUBMIT CONTROVERTING
EVIDENCE BEFORE HE COULD DENY THE SAID APPLICATION FOR A
RALLY PERMIT. (INTEGRATED BAR OF THE PHILIPPINES VS. MAYOR JOSE
ATIENZA, JR., February 24, 2010)

84. 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.

85. 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)
85

86. 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?

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]

87. 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)

88. Distinguish “clear and present danger”, “dangerous tendency


rule” and “balancing of interest test”.

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.)

89. 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?
86

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)

90. 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).

91. 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.

92. Is the holding of religious rituals at the Justice Hall of Quezon


City violative of the separation of church and state and the prohibition in
the use of public money or property in favour of a specific religion?

No. It is just an “accommodation” by the State. Please note that even our
brother Muslims are allowed to express their worship during office hours in
government offices is allowed. The same is true with Members of the Jehovah’s
Witnesses are exempted from rendering Saturday duty because their religion
prohibits them from working on a Saturday. We now adhere to the
ACCOMODATION THEORY instead of the STRICT SEPARATION THEORY. (In
re: LETTER OF TONY VALENCIANO TO CHIEF JUSTICE RENATO PUNO
REGARDING THE REGULAR HOLDING OF RELIGIOUS RITUALS AT THE
HALL OF JUDTICE OF QUEZON CITY, A. M. No. 10-4-19 SC, March 7, 2017).

93. May a Jehovah’s Witnesses Member who is the Court Interpreter


of RTC Branch 253, Las Pinas City, be held liable for “grossly immoral
87

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:

1. She is a member of the Jehovah’s Witnesses and the Watch Tower


Society;
2. That the conjugal arrangement was in conformity with their religious
beliefs;
3. That the conjugal arrangement with Quilapio has the approval of her
congregation.

Escritor likewise claimed that [4] she had executed a “DECLARATION


OF PLEDGING FAITHFULNESS” in accordance with her religion which
allows members of the Jehovah’s witnesses who have been abandoned
by their spouses to enter into marital relations. The Declaration thus
makes the resulting union moral and binding within the congregation all
over the world except in countries where divorce is allowed. 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.

949. 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 non-compliance?

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.

95. May LGBT Party of lesbians, gays bisexuals and transgenders


be denied accreditation as a party-list group because it allegedly espouses
an obscene doctrine of “same sex marriage” which is allegedly contrary to
the teachings of the Bible and the Koran?

Our Constitution provides in Article III, Section 5 that “[n]o law shall be
made respecting an establishment of religion, or prohibiting the free exercise
thereof.” At bottom, what our non-establishment clause calls for is “government
neutrality in religious matters.” Clearly, “governmental reliance on religious
justification is inconsistent with this policy of neutrality.” We thus find that it was
grave violation of the non-establishment clause for the COMELEC to utilize the
Bible and the Koran to justify the exclusion of Ang Ladlad. (ANG LADLAD LGBT
PARTY VS. COMELEC, G.R. No. 190582, April 7, 2010 )
88

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?

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
89

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?
90

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 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 properties;
3. its actual or potential uses;
4. particular case of lands;
91

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. the expropriator must enter the property;


b. the entrance must not be for just a momentary period;
c. the entry must be under warrant of color or title;
d. the property must be devoted for public use; and
e. 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 another 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).

72-a. In case the government will not be able to use the land
expropriated for the purpose for which it was intended, may the landowner
ask for its reversion to him?

Yes, provided he complies with the following:

1. Return the just compensation paid by the government;


2. pay the legal interest;
3. pay the necessary expenses incurred by the government in
maintaining the lot; and
4. pay the pecuniary value of the services in managing it to the extent
that the landowner will be benefited thereby. (MACTAN CEBU
INTERNATIONAL AIRPORT AUTHORITY VS. LOZADA,
February 25, 2010)

73. What are the rights of a person under custodial investigation


under the “Mahinay Doctrine” or the “Expanded Miranda Doctrine”?

The rights are:


92

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
93

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” or


for one suspected or arrested as a terrorist under the Human Security Act?

The rights of an accused under the Anti-Terrorism Act are embodied under
Section 21 thereof which states:

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.
94

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:

[1] to administrative investigations (People vs. Judge Ayson, 175 SCRA


216);

[2] confession to a private individual (Kimpo vs. CA, 232 SCRA 53);

[3] verbal admission made to a radio announcer who was not a part of the
investigation (People vs. Ordono, 334 SCRA 673);

[4] or even to a Mayor approached as a personal confidante and not in his


official capacity (People vs. Zuela, 323 SCRA 589).

[5] 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”? How about if the suspect
is walking towards the police station with the policemen who invited him to
the police station, is he entitled to be informed of his rights already if the
latter will ask him questions regarding the commission of a crime where he
is the suspect?

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.
95

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)

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.
96

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 select 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 substantial compliance with the
constitutional duty of police investigators during custodial interrogation.

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.
97

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)

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 or
statement 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)
98

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-accused? 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 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.
99

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 evidence of
other facts that tend to establish the guilt of his co-accused . In People v.
Alvarez , 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

86-c. If a lawyer applying for a position in the NBI will be the one to assist
during the custodial investigation of a person arrested by the NBI, is his
confession admissible in evidence?

No. There is violation of the constitutional right to a competent and


independent counsel of his own choice. (PEOPLE VS. JUANERIO, 267 SCRA
608)

86-d. Is the right to counsel during custodial investigation carries


with it the obligation of preventing the suspect from admitting the
commission of a crime or incriminating himself?

No. The presence of a lawyer during custodial investigation is not intended


to stop an accused from saying anything which might incriminate him; but rather,
it was adopted in our Constitution to preclude the slightest coercion on the
accused to admit something else. THE COUNSEL SHOULD NEVER PREVENT
AN ACCUSED FROM FREELY AND VOLUNTARILY TELLING THE TRUTH.
(PEOPLE VS. BASE, 385 Phil. 803 (2000) and reiterated in People vs.
Domingo Reyes.

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?

If there is no other evidence aside from the extrajudicial confession, yes,


as held by the Supreme Court in People vs. Galit, supra. However, if there are
other evidence to prove his guilt beyond reasonable doubt, 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
100

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 provide for four (4) ways of posting bond (cash, property,
surety and recognizance) 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. It is a matter of discretion on the part of the court. 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)

90-a. Senator Enrile was charged of the capital offense of Plunder which
is non-bailable. He filed a Motion to Fix Bail before the Sandiganbayan, instead
of Petition for Bail. Where the prosecution shall be given the opportunity to prove
101

that the evidence of guilt is strong and therefore, bail shall be denied. Enrile
claims that since he is over 90 years old and he voluintarily surrendered which
constitutes 1 degree lower, even if he will be convicted, the penalty imposable on
him is not reclusion pewrpetua or life imprisonment. The same was denied by
the Sandiganbayan. Is Enrile correct?

A. Yes. Coupled with the fact that he is over 90 years old and with failing
health, bail is justified. These are the factors in fixing bail as enunciated in the
case of VILLASENOR VS. ABANO and the Rules on Criiminal Procedure.
(ENRILE VS. SANDIGANBAYAN, August 17, 2015)

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 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 extraditee may be granted bail if :

[1] he can prove by clear and convincing evidence that he is not a


flight risk; and

[2] 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.
102

(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 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?
103

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)

96-a. May a Judge direct the witnesses for the prosecution to appear
before him and examined them anew regarding their testimonies in a
Homicide case, without notice to the prosecution and the counsel for the
accused, and after the latter had already filed a Demurrer to Evidence with
leave of court by the previous judge?

No. The judge committed gross ignorance of the law. It is also


violative of the right to impartial trial on the part of the accused. (GACAYAN
VS. JUDGE PAMINTUAN, September 17, 1999)

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
104

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, not a
mathematical computation of the years, months and days. 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. 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. In an Information for “RAPE”, is there violation of the right to be


informed of the nature and cause of accusation against the accused if the
alleged rape took place “sometime from January 1990 up to December 6,
1998” or a period of almost nine (9) years, without specifying the exact
date when the alleged rape took place?

None. The accused should have filed a Motion for a Bill of Particular or a
Motion to Quash. When he failed to do any of the two (2), he is deemed to have
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waived the defect in the information. Clearly, he slumbered on his rights and
awakened too late. Finally, the date is not an element in rape cases. (PEOPLE
VS. JERRY NAZARENO, April 8, 2008)

100-a. 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)

100-b. May an accused for alleged “sale” of marijuana be convicted


of “possession” of marijuana without violating his right to informed of the
nature and cause of accusation against him?

No. While no conviction for the unlawful sale of prohibited drugs may be
had under the present circumstances, the established principle is that possession
of marijuana is absorbed in the sale thereof, except where the seller is further
apprehended in possession of another quantity of the prohibited drugs not
covered by or included in the sale and which are probably intended for
some future dealings or use by the seller. (PEOPLE OF THE PHILIPPINES
vs. CHAD MANANANSALA, G.R. No. 175939, April 3, 2013) The rule is that
when there is a variance between the offense charged in the complaint or
information, and that proved or established by the evidence, and the offense as
charged necessarily includes the offense proved, the accused shall be convicted
of the offense proved included in that which is charged. According to Section 5,
Rule 120, Rules of Court (1985), the rule then applicable, an offense charged
necessarily includes that which is proved, when some of the essential elements
or ingredients of the former, as this is alleged in the complaint or information,
constitute the latter.

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; DELA CRUZ VS. PAPA, December 8, 2010) 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?
106

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?

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?
107

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
(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?

Yes in two (2) instances.


108

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.
trial. (PEOPLE
(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.

112-a. The accused was arrested with an unlicensed firearm in


Mabalacat, Pampanga. He was charged for violation of PD 1866 with the
RTC of Pampanga in an Information signed by the City Prosecutor of
Angeles City. At the middle of the trial, the Judge dismissed the case
without the consent of the accused. When another information for the
same offense was filed by the Provincial prosecutor of Pampanga, the
accused moved for the dismissal of the 2 nd case based on double jeopardy.
Decide.

Double jeopardy has not set in because the first requisite of valid
complaint or information is not present. The City Prosecutor of Angeles City has
no jurisdiction to file an information for an offense that took place in Mabalacat,
Pampanga. (CUDIA VS. CA, 284 SCRA 173)

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
109

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 3rd information for grave coercion before the MTC. The accused pleaded
double jeopardy. Is he correct?

Yes. Since the accused was already arraigned in the 1 st 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 re-arraigned for him to enter a plea
of “not guilty” in order that he could be validly acquitted.(PEOPLE VS.
BALISACAN, 17 SCRA 1119)

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 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)
110

117. May the government appeal a judgment of acquittal or for the


increase of the penalty imposed?

As a general rule, 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. (PEOPLE VS. DOMINGO, March 2, 2009)

Please take note, however, that in the case of [1] ARTEMIO VILLAREAL
VS. PEOPLE OF THE PHILIPPINES, G.R. No. 151258, February 1, 2012 ; [2]
PEOPLE OF THE PHILIPPINES VS. THE HOMORABLE COURT OF
APPEALS, et al., G.R. No. 154954, February 1, 2012; [3] PEOPLE OF THE
PHILIPPINES VS. SANDIGANBAYAN, IMELDA MARCOS, JOSE CONRADO
BENITEZ and GILBERT DULAY, G.R. No. 153304-05, February 7, 2012; and
[4] YSIDORO VS. HON. TERESITA CASTRO, February 6, 2012, the Supreme
Court held that a PETITION FOR CERTIORARI UNDER RULE 65 IS ALLOWED
IF THERE IS GRAV E ABUSE OF DISCRETION ON THE PART OF THE
LOWER COURT IN DISMISSING THE CRIMINAL CASE OR IN IMPOSING A
LOWER PENALTY.

118-a. May the government , by way of Petition for Certiorari under


Rule 65, question the Decision of Acquittal by the trial court, or for the
increase of the penalty imposed by the trial court?

Yes. In cases of: [1] in a judgment of acquittal rendered with grave abuse
of discretion amounting to lack or in excess of jurisdiction [PEOPLE VS.
SANDIGANBAYAN, 491 SCRA 185, June 16, 2000]; and [2] where the
prosecution had been deprived of due process due to misfeasance of the
prosecutor. [MERCIALES VS. COURT OF APPEALS, 379 SCRA 345; PEOPLE
VS. VELASCO, 340 SCRA 207, September 13, 2000], cited PEOPLE VS.
SANDIGANBAYAN & IMELDA MARCOS, ET AL., February 7, 2012;
VILLAREAL VS. PEOPLE, February 1, 2012; YSIDORO VS. HON. TERESITA
CASTRO, February 6, 2012.

Likewise if the penalty was wrong like imposing slight physical injuries to
some accused and Homicide for the others when all of them participated in
inflicting injuries resulting into the death of Lenny during his initiation rites , the
111

defense of double jeopardy is unavailing and the Supreme Court increased the
penalties for those earlier sentenced to slight physical injuries only. (VILLAREAL
VS. PEOPLE, February 1, 2012)

118-b. Jason Ivler was charged of: [1] Reckless imprudence resulting
to slight physical injuries; and [2] Reckless imprudence resulting to
Homicide and Damage to Property as a result of his single negligent act of
bumping the vehicle of the victims. He entered a plea of guilty in the first
case and was sentenced to CENSURE. When he was about to be arraigned
in the second case, he invoked double jeopardy and prayed for the
dismissal of the said 2nd case. Decide.

Yes, double jeopardy has set in. He could not be tried again for the 2 nd
case. A single negligent act could not be the subject of two (2) criminal
informations. [IVLER VS. JUDGE PEDRO, G.R. No. 172716, November 17,
2010] (NOTE: Very important in your Criminal Law. Article 48 of the Revised
Penal Code allows complexing a crime if it involves grave and less grave felonies
but the Ivler case does not involve grave or less grave felonies. The Supreme
Court held that Art. 48 does not apply to negligence cases and should be
complexed regardless of the kind of felonies involved)

118-c. May the private complainant validly file a Motion for


Reconsideration of a Decision of the Supreme Court ACQUITTING Hubert
Webb and company of Rape with Homicide and Murder without violating
the rule on double jeopardy?

No. The acquittal of Hubert Webb and his co-accused by the Supreme
Court in the Vizconde Rape/Murder cases is final. Double jeopardy has set in.
(LEJANO VS. PEOPLE & PEOPLE VS. HUBERT WEB ET AL., January 18,
2011)

118-d. Sharon Cuneta filed two (2) cases of Libel against the editors and
columnist of the tabloid Bandera. After the prosecution rested its case, the
accused filed a Demurrer to Evidence which the trial court granted. Sharon
questioned the dismissal before the Court of Appeals on Certiorari under Rule 65
which was granted by the latter and ordered the trial court shall proceed to
receive the evidence of the accused. The editors went to the Supreme Court
alleging that their right against double jeopardy was violated.

Yes, the right of said accused against double jeopardy will be violated by
remanding the case for the reception of evidence for the said accused. Dismissal
of a criminal case based on demurrer to evidence amounts to acquittal and as
such, double jeopardy has set in.

Finally, the Court of Appeals should not have entertained Sharon’s petition
because only the Solicitor General could file such a petition questioning the
decision of the lower court in criminal cases before the CA or SC, not the private
complainant. (BAUTISTA VS. Sharon Cuneta-Pangilinan, October 24, 2012)
112

118-e. 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

118-f. If the same libelous article will be published by the author in


the internet and in a daily newspaper, can he be charged separately for
Libel under the Revised Penal Code and Libel under the Cybercrime
Prevention Act of 2012 since the acts are covered by two (2) different
laws?

No, that would violate his right against double jeopardy. (DISINI VS.
SECRETARY OF JUSTICE, GR No. 203335, February 18, 2014)

118-g. May a person be criminally charged separately under the


Cybercrime Prevention Act of 2012 and Anti-Child Pornography Act
since they are punished by different laws?
No, that would violate his right against double jeopardy. (DISINI VS.
SECRETARY OF JUSTICE, GR No. 203335, February 18, 2014)

119. When may the “ex-post facto law” rule be invoked?

Only if the law sought to be applied is a “[1] criminal law or penal in nature;
[2] it is applied retroactively; and that [3] it is prejudicial to the accused”.
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;
113

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;
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).