From: Mark Xavier Oyales Sent: Sunday, November 13, 2016 11:06 PM To: Aris Dumlao Subject: Re: very good, 28/30 = 93.3% Aris Dumiao ‘gyalesmarlxavier@vahoo. com 1a) No. The wait of habeas corpus in itself cannot be suspended. Called the" great wait of liberty,” the writ of habeas corpus was devised and exists asa speedy and effectual remedy to relieve persons from unlawful restraint, and as the best and only sufficient defense of personal freedom The remedy of habeas corpus is extraordinary and summary in nature, consistent with the law’s "zealous regard for personal liberty" (In re Salibo v. Warden G Ro. 197597, April 8, 2015). What may only be suspended is the privilege of the writ of habeas corpus. [Ipt] 1b) Under Section 15, Article III of the 1987 Constitution, “[t]he privilege of the writ of habeas corpus shall not be suspended except in cases of invasion or rebellion, when the public safety requires it” This means that the suspension should only be grounded on: (@ Invasion, when public safety requires it, or (b) Rebellion, when public safety requires it. [2pts] 16) No. Like the wait of habeas corpus, the writ of amparo ( and the writ of habeas data) cannot be suspended by the President. \What may also be suspended is the privilege of these writs. The writ of amparo isa complementary wnit added by the Supreme Court to make the wnt of habeas corpus mare efficacious (Isagani Cruz, Political Law, 2014 edition, page 631). By analogy, when the privilege of the wnit of habeas corpus is suspended in case of either “invasion or rebellion, when public safety requires it,” the privileges of the writs of amparo and habeas data are also deemed suspended and unavailable they being auxiliary ‘its or processes and so cannot remain standing without the main remedy (Retired Justice of the Supreme Court Vicente V. Mendoza, A Note on the Writ of Amparo, Philippine Law Journal Vol. 28, page 7). [2pts] 2a) No. There is no valid cause of action for the petition of wait of comparo, Ina wit of amparo, the violation or threatened violation ofa person's right to life, liberty and security, especially extralegal killings and enforced disappearance, should have been perpetrated by the Govemment, i.e. personsacting in official capacity or agents of the State OR private individuals WITH GOVERNMENT AID ORPARTICIPATION. The Supreme Court emphasized this in the case of Racon Jr. v. Tagitis (GR No. 182498, December 3, 2009, 606 SCRA 598) saying that “extralegal ldllings and enforced disappearances under the writ of amparo refer to the arrest, detention, abduction, or any other form of depnvation of liberty by agents of the State, or by [private] persons or group of persons acting with authorization, acquiescence, or support of the State” Inthe case at bar, Juana’s father, while a retired general of the Philippine army, cannot be deemed as a perpetrator acting in behalf or with the support and authorization of the State Neither are his body guards ‘who executed the abduction are acting in behalf of the State since they receive orders directly froma privateindividual. There being no showing the the abduction of Jose is committed with State participation or authority, the writ of amparo shall not issue. [4pts] 20) No. A general denial is prohibited in the rules governing wait of amparo, which is AM. No. 07-9-12- Sc In the said AM., Section 9 thereof expressly provides that in the return, “[a] general denial of the allegations in the petition shall not be allowed’. In the same section, specifically subsection “a”, the rules mandate that among the material contents of the retum include “the lawful defenses to show that the respondent did not violate or threaten with violation the right to life, liberty and security of the aggrieved party, through any act or omission’, This means that a mere specific denial cannot suffice, the denial should be coupled with lawfl defenses and proofs that the respondent did not do what has been alleged of him” [pts] 3) Yes. There is a valid cause of action in the petition for habeas data, since there is a violation by an unlawful act or omission of a public official a person's right to privacy in life, liberty or security. HOWEVER, while there is indeed a cause ofaction, the parties who filed the habeas data are not the proper parties Section 2 of A. M. No. 08-1-16-SC, or the rules govemiing the IVrit of Habeas Data provides that, except for extralegal killings and enforced disappearances, only the aggrieved party may file a petition for the wnt of habeas data Inthe case here, petitioner Bantay Katarungan isa civic organization who can not file on behalf of the senator in the drug list either fora violation of the latter's right to privacy in life, liberty, or secunty, or in case the latter has been victimized by enforced disappearance or extralegal lallings. In the latter, the law allows only the following to file the habeas data: (a) Any member of the immediate family ofthe aggrieved party, namely: the spouse, children and parents, or (b) Any ascendant, descendant or collateral relative of the agerieved party within the fourth civil degree of consanguinity or affinity, in default of those mentioned in the preceding paragraph. [4pts] 4) No. The judge cannot be held civilly liable for denying the accused bail. While itis true that under Art 32 of the Civil Code, the liability of the public officer may accrue even if he/she acted in good faith, as long as there is a violation of constitutional rights because it is not necessary that the public officer acted wath malice or bad faith, the plaintiff must be able to show or allege that it suffered a particular or special injury on account of the public officer's improper performance or non-performance of his public duty. In such a case, there is damage to the individual but no wrong to him In performing or failing to perform a public duty, the officer has touched his interest to his prejudice, but the officer owes no duty to him as an individual. The remedy in this case is not judicial but political. Ruling otherwise will send a chilling effect to public officers, and will adversely affect the performance of their duties (Vinzons-Chato v. Fortune Tobacco Coporation, G.R. No. 141309, December 23, 2008). [3pts, Check the last paragraph of Article 32] 5) No. The Govemment of the Philippines cannot be considered in breach of the Intemational Covenant on Economic, Social and Cultural Rights (ICESCR)on the ground that it failed to recognize “the night to ‘work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts” assuming that the unemployment rate of the country is at 20%. The ICESCR is generally not justiciable. The breac) mentioned is not an actionable wrong, and the provision commanding itand the whole ICESCR should be progressively realized through time. [4pts] 6a) I will file a petition against the police officers for violating AkBayanKo's constitutional right to peaceably assemble for the redress of grievance and of their right to expression. In this case, the police officers had.no reasonable ground to restrain the assembly because there is no clear and present danger, that is, existing, imminent and active danger which will imperil the State due to the said assembly. I wall file anadministrative case against the police officers for their dismissal in the service because, irrespective of a civil complaint for the recovery of damages under Art. 32 of the Civil Code. Under the said provision, one of the constitutional rights that need protection even against private individuals is the right to peaceably assemble and petition for redress of grievance. The police officers failed to follow the maximum tolerance rule and have employed disproportionate force asa restraint to the activists by bulldozing the activists wath a police van. The activists thus suffered a particular or specific injury with which damages could be collected. [4pts] 6) I wall filea motion for judicial determination of probable cause [there is already a judicial determination of probable cause because there is a warrant issued] or the concluct of preliminary investigation when there is no preliminary investigation conducted yet. In case of adverse resolution, I will file a motion for reconsideration and if the same is denied, a petition for review before the Secretary of Justice, but if the offense is punishable by reciusion perpefua, to the Office of the President. In case of denial, I will file a petition for review to the CA if the adverse resolution came from OP, but if came from the Secretary of Justice, the same should be filed before the OP then to CA if denied again. Ifthe decision is again adverse, Iwill filea petition for certiorart before the Supreme Court is there isa grave abuse of discretion or denial of due process. If there is no probable cause, I will file for a motion to dismiss the complaint or a motion to release Roby from detention on the ground of lack of probable cause. I may also file fora motion for reinvestigation if proper, or a motion to quash in case there is a valid ground. In the latter, ifthe same is denied, I will proceed with the trial and in case of adverse decision, I will raise not only as an error the denial of the motion to quash, but also as an added ground for the overtuming of the ruling. [2pts]