Political Law (Atty. Gacayan) (2)

UNIVERSITY OF THE CORDILLERAS BAR OPERATIONS 2011POLITICAL law Prepared by: ATTY. LARRY D. GACAYAN 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. 4. What are the requisites for the exercise of “people’s initiative” to amend the Constitution? It is provided under Section 2, Art. XVII of the Constitution which provides that “Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least 12% of the total number of registered voters, of which every legislative district must be represented by at least 3% of the registered voter therein.” The Congress shall provide for the implementation of the exercise of this right. 5. Is there a law which would provide for the mechanism for the people to propose amendments to the Constitution by people’s initiative? While Congress had enacted RA 6735 purportedly to provide the mechanisms for the people’s exercise the power to amend the Constitution by people’s initiative, the Supreme Court in MIRIAM DEFENSOR-SANTIAGO, et al. Vs. COMELEC, G.R. No. 127325, March 19, 1997 & June 10, 1997, the Supreme Court held that RA 6735 is incomplete, inadequate or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is concerned. Its lacunae on this substantive matter are fatal and cannot be cured by “empowering” the COMELEC to promulgate such rules and regulations as may be necessary to carry the purposes of this act. In LAMBINO VS. COMELEC, however, the Supreme Court on November 21, 2006, in the Minute Resolution of the petitioner’s Motion for Reconsideration held that RA No. 6735 is adequate and complete for the purpose of proposing amendments to the Constitution through people’s initiative by a vote of 10 members as per Certification of the En Banc’s Clerk of Court. BAR OPERATIONS 2011 Page 1 GREEN NOTES IN POLITICAL LAW Prepared by: ATTY. LARRY D. GACAYAN 5-a. May the question “Do you approve the amendment of Articles VI and VII of the 1987 Philippine Constitution changing the form of government from Presidential-Bicameral to Parliamentary-Unicameral” be allowed to be submitted to the people for their ratification or rejection as a means of amending the Constitution by people’s initiative if the requisite number of signatories (12% nationwide and at least 3% for every legislative district) are met? No for two (2) reasons. 1. The said “proposal” did not indicate which provisions of Articles VI and VII are actually being amended which is a must under Section 2, Art. XVII. Otherwise, who shall make the amendments if the people in a plebiscite approve the same; 2. Changing the form of government from presidential to parliamentary is an act of REVISING the Constitution which is not allowed under Art. XVII, Section 2. People’s initiative may only be allowed to propose amendments to the Constitution, not revision. 6. What are the requisites before an amendment to the Constitution by “people’s initiative” is sufficient in form and in substance? In the case of RAUL L. LAMBINO and ERICO B. AUMENTADO , together with 6,327,952 registered voters vs. THE COMMISSION ON ELECTIONS, G.R. No. 174153, October 25, 2006, 505 SCRA 160, the following requisites must be present: 1. The people must author and must sign the entire proposal. No agent or representative can sign for and on their behalf; 2. As an initiative upon a petition, THE PROPOSAL MUST BE EMBODIED IN A PETITION. These essential elements are present only if the full text of the proposed amendments is first shown to the people who will express their assent by signing such complete proposal in a petition. Thus, an amendment is “DIRECTLY PROPOSED BY THE PEOPLE THROUGH INITIATIVE UPON A PETIITON “ ONLY IF THE PEOPLE SIGN ON A PETITION THAT OCNTAINS THE FULL TEXT OF THE PROPOSED AMENDMENTS. 7. Distinguish “Revision” from “amendment” of the Constitution. “Revision” is the alterations of the different portions of the entire document [Constitution]. It may result in the rewriting whether the whole constitution, or the greater portion of it, or perhaps some of its important provisions. But whatever results the revision may produce, the factor that characterizes it as an act of revision is the original intention and plan authorized to be carried out. That intention and plan must contemplate a consideration of all the provisions of the Constitution to determine which one should be altered or suppressed or whether the whole document should be replaced with an entirely new one. “Amendment” of the Constitution, on the other hand, envisages a change or only a few specific provisions. The intention of an act to amend is not to consider the advisability of changing the entire constitution or of considering that possibility. The intention rather is to improve specific parts of the existing constitution or to add to it provisions deemed essential on account of changed conditions or to suppress portions of it that seem obsolete, or dangerous, or misleading in their effect. (SINCO, Vicente, PHILIPPINE POLITICAL LAW) 8. May Congress propose amendments to the Constitution while at the same time calling for a Constitutional Convention to amend the Constitution? BAR OPERATIONS 2011 Page 2 GREEN NOTES IN POLITICAL LAW Prepared by: ATTY. LARRY D. GACAYAN Yes, there is no prohibition for Congress to propose amendments to the Constitution and at the same time call for the convening of a Constitutional Convention to amend the Constitution. The word “or” in the provision “…Congress, upon a vote of ¾ of all its members; OR [2] A constitutional Convention” under Section 1, Art. XVII also means “AND”. (GONZALES VS. COMELEC, 21 SCRA 774) 9. What is the “Doctrine of Proper Submission” in connection with proposed amendments to the Constitution? “Doctrine of Proper Submission” means all the proposed amendments to the Constitution shall be presented to the people for the ratification or rejection at the same time, not piecemeal. (TOLENTINO VS. COMELEC, 41 SCRA 702) 10. What is the archipelagic doctrine or archipelago theory? It is the 2nd sentence of Section 1, Art. I of the Constitution which states that “the waters around, between and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines.” 11. What are the elements of a “state”? As held in COLLECTOR VS. CAMPOS RUEDA, 42 SCRA 23, the elements of a state are. 1. people 2. territory 3. sovereignty 4. government 12. Are the two-fold function of government as enumerated by the Supreme Court in BACANI VS. NACOCO, 100 Phil. 468 (Ministrant [merely directory] and Constituent [Mandatory] Functions) still applicable today? No more as held in ACCFA VS. CUGCO, 30 SCRA 649. This is due to complexities of the changing society, the two-fold function of the government as classified by President Wilson is no longer relevant as a result of the changing society wherein what are considered merely ministrant functions of the State before are now considered constituent , or vice versa. 13. What kind of government was the “Aquino Government” after former President Marcos left Malacanang for Hawaii due to the EDSA Revolution in February 1986. As held in In Re: SATURNINO BERMUDEZ, 145 SCRA 160, the same is de jure. A government formed as a result of a people’s revolution, is considered de jure if it is already accepted by the family of nations or other countries like the United States, Great Britain, Germany, Japan, and others. 14. What are the three (3) kinds of de facto government? As held in CO KIM CHAM VS. VALDEZ TAN KEH, 75 Phil. 113, the three (3) kinds of de facto governments are: a. The first, or government de facto in a proper legal sense, is that government that gets possession and control of, or usurps, by force or by the voice of the majority, the rightful legal governments and maintains itself against the will of the latter, such as the government of England under the Commonwealth, first by Parliament and later by Cromwell as Protector. b. The second is that which is established and maintained by military forces who invade and occupy a territory of the enemy in the course of war, and BAR OPERATIONS 2011 Page 3 ROBERTSON. it "is the property of a state-force due to which it has the exclusive capacity of legal self-determination and self-restriction.GREEN NOTES IN POLITICAL LAW Prepared by: ATTY. 15. Its distinguishing characteristics are (1). may refrain from the exercise of what otherwise is illimitable competence. 88 SCRA 195 REYES VS. be more aptly denominated a government of paramount force. 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”. do not become responsible. KURODA VS. though not warranted by the laws of the rightful government. DIRECTOR OF PRISONS." A state then. 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. LARRY D. International Law. occupied during the war with Mexico. and Tampico. 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”. EDU.125 SCRA 553." The opinion was at pains to point out though that even then. (Taylor. which was reduced to British possession in the war of 1812. and against the rightful authority of an established and lawful government. "But there is another description of government. PEOPLE VS. 88 SCRA 195). called also by publicists a government de facto. perhaps. GOZO. Though Article 22 of the Vienna Convention on Diplomatic Relations prohibits rallies within 500 feet of any foreign embassy. 53 SCRA 476 and COMMISSIONER VS. in Maine. 615. Mexico. BAGATSING. and (2). JALANDONI.) 16. or wrongdoers. 90 Phil. What is the doctrine of sovereignty as “auto limitation”? In the succinct language of Jellinek. (MEJOFF VS. What is the postliminy theory or jus postliminium? When a foreign power occupies a state and exercises the powers of government. GACAYAN which is denominated a government of paramount force. Commissioner. 18. but which might. which shall prevail? In the case of 4) AGUSTIN VS. 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. there is at the most diminution of jurisdictional rights. c. by acts of obedience rendered in submission to such force. if it chooses to. but only with the second and third kinds of de facto governments. What is the “incorporation theory” or the “Incorporation Clause” of the Constitution? It is the principle embodied in Section 2. for those acts. 143 SCRA 397) 17. not its disappearance. that its existence is maintained by active military power with the territories. by the troops of the United States. 70. and AGUSTIN VS. (Cited in Reagan vs. that while it exists it necessarily be obeyed in civil matters by private citizens who. as the cases of Castine. 83 Phil 171. In case of conflict between a constitutional right of a citizen and a generally accepted principle of international law. p. the Supreme Court held that the constitutional right shall prevail. EDU. BAR OPERATIONS 2011 Page 4 . 2. The free exercise and enjoyment of religious profession and worship. if it is consistent with national interest. “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. 66 Phil. VI. VI. Is abortion allowed in the Philippines? BAR OPERATIONS 2011 Page 5 . as stated in Section 8. Sec. adopts and pursues a policy of freedom from nuclear weapons in its territory. LARRY D. ART. No public money or property shall be appropriated. 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. IX. or to any penal institution. or prohibiting the free exercise thereof.(2). 3(3). II. 29 . for the benefit. 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. Sec. Art. consistent with the national interest.” As such. 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. NO RELIGIOUS TEST SHALL BE REQUIRED FOR THE EXERCISE OF CIVIL OR POLITICAL RIGHTS. [2] territorial integrity. (NOTE: Religious organizations are also prohibited ion connection with sectoral representatives under Art. VI) 5. 22. or government orphanage or leprosarium. Is “divorce” prohibited by the 1987 Philippine Constitution? : Father Bernas opines that the provision of the Constitution (Section 12. Religious denominations and sects shall not be registered…as political parties. 21. charitable. church. 20. 23. churches. except when such priest. 1. II. What are the factors to be considered by the Philippines in dealing with other nations? As provided in Section 7 of Art. III. Sec. C. The Philippines shall pursue an independent foreign policy. [3] national interest. 13. 28 (3). for the use. paid. directly and exclusively used for religious. minister. a Divorce Law to be passed by Congress may or may not be unconstitutional. Art. denomination or religion. As such. XIV. shall forever be allowed. ART. mosques. or educational purposes shall be exempt from taxation. “the Philippines. 23. LAGMAN. without additional cost to the government.. ART. ART. 3. 4. No law shall be made respecting an establishment of religion. Is there absolute prohibition for the Philippines to be equipped with nuclear weapons? No. benefit. In its relations with other states the paramount consideration shall be [1] national sovereignty. ART. and [4] the right to self-determination. is assigned to the armed forces. Charitable institutions. 5. applied. directly or indirectly. or support of any sect. 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. GACAYAN 19. the same is not prohibited. At the option in writing by parents. Sec. without discrimination or preference. 2(5). non-profit cemeteries… actually.GREEN NOTES IN POLITICAL LAW Prepared by: ATTY. (Note: In the United States. a private firm sequestered by the government on account of Executive Order No. As such. II prohibits all forms of abortion except “therapeutic abortion” or when the life of the mother is in danger. free enterprise does not call for the removal of “protective regulations” for the benefit of the general public. 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. 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. PHILIPPINE COCONUT AUTHORITY. IN FACT. NEBRASKA. May the State prohibit the teaching of a particular language in any school? No as held in MEYER VS. abortion is allowed but only up to the 2 nd trimester of the pregnancy [ROE vs. This is in accordance with this provision which states that the parents have the “natural and primary right in rearing their child for civic efficiency…” 25. and although the present Constitution enshrines free enterprise as a policy. not to mention that such would render nugatory the power of Congress under Section 21. NEW YORK. May the State require parents to enroll their small children only to public schools valid? As held in PIERCE VS. Do we practice the free enterprise system in the Philippines or is it the welfare state concept? Distinguish the two. however. starting from the 1935 document. GORDON. Sections 6 and 9. Such act would violate Section 28. HAVE REPUDIATED laissez faire (or the doctrine of free enterprise) as an economic principle.GREEN NOTES IN POLITICAL LAW Prepared by: ATTY. They have the right to choose which school is best suited for the development of their children without interference from the State. 504 SCRA 704) BAR OPERATIONS 2011 Page 6 . Art. 390 US 629 (1969). GOVERNMENT OFFICIALS HAVE LIMITED RIGHT TO PRIVACY. Art. 26. a law prohibiting the sale of “girlie magazines” [bold?) is constitutional and does not violate the above provision. GACAYAN Section 12. 27-a. 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. SOCIETY OF SISTERS. May the PCGG Commissioners refuse to appear before a Senate Committee conducting alleged irregularities committed by them while sitting in the Board of PHILCOMSAT. 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. This is so because under Art. housing. XII. CUGCO. It is the welfare-state concept which is being followed as shown by the constitutional provision on agrarian reform. WADE]) 24. 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. protection to labor… (NOTE. XI of the 1987 Constitution. As held in ACCFA VS. it nevertheless reserves to the government the power to intervene whenever necessary to promote the general welfare. The said doctrine was reiterated in PHILIPPINE COCONUT DESICCATORS VS. Art. II of the Constitution mandating disclosure of all public transactions involving the public interest. 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. that the 1987 Constitution have provisions which provide for “free enterprise). (SABIO VS. 286 SCRA 109 where it was held that the Philippine Constitutions. LARRY D. 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. 268 US 510 (1925). Art. VI. 30 SCRA 649 “the Philippines never practiced the free enterprise system. 27. THIS IS SO BECAUSE THE CHILDREN ARE NOT MERE CREATURES OF THE STATE. as held in the case of GINSBERG VS. R. 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. No. COMELEC. the COMELEC Resolution is unconstitutional. and (b) Sufficiency of Standards Test simply requires Congress to fix a standard. It adds additional qualifications for the President. for a limited period and subject to such restrictions as Congress may provide. 15 SCRA 569: (a) Completeness Test simply means that the law must be complete in itself when it left Congress. Article VI---The Congress shall. GACAYAN 28. 23 (2) of Article VI (Emergency powers to the President in case of war or other national emergency. VP. the limits of which are sufficiently determinate or determinable to which the delegate must conform in the performance of his functions. of which every legislative district must be represented by at least 3% of the registered voters thereof. (PIMENTEL VS. 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. 2) Sec. 31. What are the constitutionally allowed “delegation of legislative power” by Congress? The permissible delegation of legislative power are. non-delegability of legislative powers 29. tariff rates. to exercise powers necessary and proper to carry out a declared national policy. Some of the standards to guide the delegate are general welfare. it cannot pass irrepealable laws 2. XVII of the Constitution and Section 32. VOP. import and export quotas. and the exceptions therefrom. 161658. 28 (2) of Article VI. etc. Senators and Members of the House of Representatives not required by the Constitution. authorize the President to fix within specified limits. Is it constitutional for the COMELEC to require candidates for all elective offices. 30. LARRY D. G. as early as possible. What Are the limitations to the Congress power to exercise legislative power? The limitations are: 1. and subject to such limitations and restrictions as it may impose. 3) Delegation to local governments 4) Delegation of Rule-making power to administrative bodies 5) Delegation to the People (Section 2. principle of separation of powers 3. Art. and other duties or imposts within the framework of the national development program of the government. 1) Sec. Unless sooner withdrawn by Resolution of Congress. 2008) BAR OPERATIONS 2011 Page 7 . The Congress may by law. including those for President. What is the completeness test? The sufficiency of standard test? As held in PELAEZ VS. provide for a system of initiative and referendum. carried out or implemented by the delegate which is not given any discretion.GREEN NOTES IN POLITICAL LAW Prepared by: ATTY. AUDITOR GENERAL. November 3. tonnage and wharfage dues. such powers shall cease upon the next adjournment thereof. It must set forth therein the policy to be executed. public interest. GREEN NOTES IN POLITICAL LAW Prepared by: ATTY. LARRY D. GACAYAN 31-a. Is a Filipino citizen who became a member of the US Armed Forces and therefore at one time a US Citizen considered “natural born” for purposes of complying with the qualifications of a member of the House of Representatives? Yes as held in ANTONIO BENGSON III VS. HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL and TEODORO CRUZ, 357 SCRA 545 because Rep. Act No. 2630 provides that “Any person who had lost his Philippine Citizenship by rendering service to, or accepting commission in, the Armed Forces of the United States, or after separation from the Armed Forces of the United states, acquired US citizenship, MAY REACQUIRE PHILIPPINE CITIZENSHIP BY TAKING AN OATH OF ALLEGIANCE TO THE REPUBLIC OF THE PHILIPPINES AND REGISTERING THE SAME WITH THE LOCAL CIVIL REGISTRY IN THE PLACE WHERE HE RESIDES OR LAST RESIDED IN THE PHILIPPINES. The said Oath of allegiance shall contain a renunciation of any other citizenship.” And he shall still be considered “natural born” Filipino citizen. 32. If the candidate for Congressman is subsequently disqualified for non-compliance of the residence requirement under Art. VI, may the 2 nd placer be declared the winner in his place? When may the 2nd placer be allowed to be declared the winner? It depends. As held in OCAMPO VS. HOUSE ELECTORAL TRIBUNAL and MARIO CRESPO, a.k.a. MARK JIMENEZ, June 15, 2004. 1. There must be a final judgment disqualifying a candidate in order that the votes of a disqualified candidate can be considered “stray”. This final judgment must be rendered BEFORE THE ELECTION. This was the ruling in the case of CODILLA VS. DE VENECIA. Hence, when a candidate has not been disqualified by final judgment during the election day he was voted for, the votes cast in his favor cannot be declared stray. To do so would amount to disenfranchising the electorate in whom sovereignty resides. The reason behind this is that the people voted for him bona fide and in the honest belief that the candidate was then qualified to be the person to whom they would entrust the exercise of the powers of government. 2. The disqualification of a candidate who obtained the highest number of votes AFTER THE ELECTION does not entitle the second placer to be declared the winner. The said principle was laid down as early as 1912 and reiterated in the cases of LABO VS. COMELEC, ABELLA VS. COMELEC and DOMINO VS. COMELEC. 32-a. In order to validly create an aditional district for Cagayan de Oro City, must the law creating it be first submitted to the people therein in a plebiscite in accordance with Section 10, Art. X of the 1987 Constitution? No, because the creation of another district when the same is warranted as when there is an increase of population justifying the creation of a new district does not create a new or divide a local government unit. (BAGABUYO VS. COMELEC, December 8, 2008) 32-b. In the computation of party-list representatives, is the Veterans Federation Party vs. COMELEC Formula or the Panganiban Formula still applicable? No more because it results in a mathematical impossiblity. To strictly comply with it requiring at least 2% for every sectoral representative to obtain in order to garner 1 seat would require 110% in order that there will be 55 sectoral representatives based on the number of legislative districts. 33. In case of vacancy in the Senate or in the House of Representatives under Section 9 of Article VII, is it automatic for the COMELEC to hold a special election? BAR OPERATIONS 2011 Page 8 GREEN NOTES IN POLITICAL LAW Prepared by: ATTY. LARRY D. GACAYAN No, there must be a law passed by Congress appropriating the funds for the said purpose. ( LOZADA vs. COMELEC, 120 SCRA 337) 34. While a Member of Congress is not allowed to appear as counsel for any party in court or before administrative bodies, may he do so as a “stockholder”? No as held in PUYAT vs. DE GUZMAN, 113 SCRA 31. What could not be done directly could not likewise be done indirectly. So a member of Congress who is a stockholder of the corporation involved in a case is not allowed to appear under the guise that he is appearing as such, not as counsel for the corporation. 35. May a court suspend a member of Congress when Section 16 [3], Article VI appears to give such exclusive power to each House only for disorderly behavior, and with the concurrence of 2/3 of all its members, suspend or expel a Member. A penalty of suspension, when imposed, shall mot exceed sixty days? Yes, this was the rulings of the Supreme Court in the cases of MIRIAM DEFENSOR and REP. PAREDES VS. SANDIGANBAYAN. RA 3019 applies to all government officers and employees. 36. In case of conflict between the entries in a journal of both Houses of Congress and extraneous evidence like affidavits of witnesses, which shall prevail? As held in U.S. vs. PONS, 34 Phil. 729, the journal prevails over extraneous evidence like accounts of newspaper journalists and reporters as to what the proceedings all about. 37. In case of conflict between the journal and the enrolled bill, which shall prevail? In CASCO PHIL. VS. GIMENEZ, 7 SCRA 347, it was held by the Supreme Court that The enrolled bill prevails over the journal. If the enrolled bill provides that it is urea formaldehyde is the one exempt from tax, and not urea and formaldehyde which appears in the journal which was really approved, the former prevails and only CURATIVE LEGISLATION COULD CHANGE THE SAME, NOT JUDICIAL LEGISLATION. However, if the President of the Philippines, Senate President and the Speaker of the House of Representatives withdraw their signatures as a result of an anomaly surrounding the printing of the final copy of the bill, then, the journal will prevail since what is left is no longer considered an “enrolled bill.” (NOTE, however, that the journal prevails over the enrolled bill on all matters required to be entered in the journals, like yeas and nays on the final reading of a bill or on any question at the request of 1/5 of the members present. [Justice Isagani Cruz]) 38. May Congress change the existing membership of the Commission on Appointments or Electoral Tribunals as a result of the changes of membership of the different political parties? Yes If the changes in the political party affiliations of the members of Congress is substantial and at the same time permanent so as to dramatically increase the membership of one party while significantly reducing the other, the number of representatives of the different parties in the Commission on Appointments may also be changed in proportion to their actual memberships. (NOTE: In Cunanan vs. Tan, the membership of the Senators was only “temporary” so as not to result in the change of membership in the Commission on Appointments) 38-a. May a political party (LDP) replace its representative in the House of Representatives Electoral Commission who, in a preliminary voting in a protest case against an LDP Member, voted in favor of the other party and against the candidate of his very own party? 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 BAR OPERATIONS 2011 Page 9 GREEN NOTES IN POLITICAL LAW Prepared by: ATTY. LARRY D. GACAYAN heard and participated in a particular case [and has already indicated his vote to the members of the tribunal] and replace him with another who has no participation therein, except only to vote for a party-mate who is involved in the protest. Such would be a travesty of justice. (BONDOC VS. PINEDA, September 26, 1991) 39. May a committee of Congress cite a person for contempt of court for refusing to answer its questions during investigations in aid of legislation? How long may it imprison such witness? As held in ARNAULT vs. NAZARENO, 87 Phil. 29, “A witness who refuses to answer a query by the Committee may be detained during the term of the members imposing said penalty but the detention should not be too long as to violate the witness’ right to due process of law.” 40. May the President validly prohibit members of the Cabinet and those of the executive department from appearing before any Committee of Congress without her consent? It depends. If the appearance is due to the power of Congress to investigate in aid of legislation under Section 21, Art. VI, such act of the President is unconstitutional for it would violate the oversight powers of Congress and because the appearance of said executive officers is MANDATORY. It would also violate the right to information on the part of the citizens. However, if the invitation to appear is based on Section 22, Art. VI or during the “question hour”, then the President may validly demand that they must get her consent first because such appearance is DISCRETIONARY. (SENATE OF THE PHILIPPINES, represented by SENATE PRESIDENT FRANKLIN DRILON, ET AL., VS. EXEC. SEC. EDUARDO ERMITA, ET AL., G.R. No. 16977, April 20, 2006 , 488 SCRA 1) 40-a. While a Member of the Cabinet may be compelled to appear before Congress under Section 21, Art. VI of the Constitution, may he be compelled to answer questions regarding his conversations with the President on matters subject of the investigation/inquiry in aid of legislation? NO IF THE CONVERSATIONS ARE COVERED BY THE “EXECUTIVE PRIVILEGE”. 40-B. 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 BAR OPERATIONS 2011 Page 10 Court of Appeals delved deeper.S.3[30] the U.S. There. BAR OPERATIONS 2011 Page 11 . Law. Serv. congressional or judicial negation of the presidential communications privilege is always subject to greater scrutiny than denial of the deliberative process privilege. The majority concluded that. June 17. Practice and Recent Developments at pp. the power to negotiate treaties. R. 96-3124. Nixon. The Court conceded that functionally those officials were performing a task directly related to the President’s pardon power. 64 Fed.2[29] the U.App. the lesser protections of the deliberative process privilege would suffice. 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. 18-19. and covers final and post-decisional materials as well as pre-deliberative ones 4[31] As a consequence. 6 [33] 365 F. the presumption is founded on the “President’s generalized interest in confidentiality.1[28] In United States v. the privilege is meant to encompass only those functions that form the core of presidential authority. however.” It thus considered presidential communications as “presumptively privileged. the other is the deliberative process privilege. to decision-making of executive officials. 183. etc.8[35] and 1 2[29] 3[30] 4[31] 5[32] [28] CRS Report for Congress.” Accordingly.3d 1108. In Re: Sealed Case No. In Re: Sealed Case confines the privilege only to White House Staff that has “operational proximity” to direct presidential decision-making.S. Presidential communications privilege applies to decision-making of the President while. GACAYAN communications privilege.GREEN NOTES IN POLITICAL LAW Prepared by: ATTY. But more specific classifications of communications covered by executive privilege are made in older cases. while the presidential decision involved is the exercise of the President’s pardon power. documents or other materials that reflect presidential decision-making and deliberations and that the President believes should remain confidential. Inc. 1997. Court recognized a great public interest in preserving “the confidentiality of conversations that take place in the President’s performance of his official duties. LARRY D. 683. Id. Presidential Claims of Executive Privilege: History.” such as commander-in-chief power. 361 U. The former pertains to “communications. they are characterized by marked distinctions. 2. one is the presidential communications privilege and. a non-delegable. the presidential communications privilege applies to documents in their entirety. Turning on who are the officials covered by the presidential communications privilege. the sole-authority to receive ambassadors and other public officers. Thus.341 withheld documents. the second on common law privilege.5[32] The situation in Judicial Watch. Law. 418 U. 141. v..D. 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. appointment and removal power.” In In Re: Sealed Case. Unlike the deliberative process privilege. involving what the court characterized as “quintessential and non-delegable Presidential power. Evid. found insufficient to justify the confidentiality of the 4. That privilege was. the power to grant pardons and reprieves.S. Presidential Claims of Executive Privilege: History.” Apparently.7[34] identity of government informers in some circumstances. Practice and Recent Developments at p.” The latter includes ‘advisory opinions.” 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.C. It ruled that there are two (2) kinds of executive privilege. CRS Report for Congress. The first is rooted in the constitutional principle of separation of power and the President’s unique constitutional role. recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated. the deliberative process privilege. core-presidential function. Department of Justice 6[33] tested the In Re: Sealed Case principles. Courts ruled early that the Executive has a right to withhold documents that might reveal military or state secrets. Article VII.12[40] appointing. 133 (1998).1341-43 (D. Totten v. 3) The presidential communications privilege remains a qualified privilege that may be overcome by a showing of adequate need.13[41] pardoning. This authority of the President to enter into executive agreements without the concurrence of the Legislature has traditionally been recognized in Philippine jurisprudence. (NOTE: In Nixon.11[39] there is also a recognition of the confidentiality of Presidential conversations. 15 [43] Section 20 and 21. and discussions in closed-door Cabinet meetings. PEA. Nixon. Chicago v. Under our Constitution.14[42] and diplomatic15[43] powers. PCGG . the power to enter into an executive agreement with other countries. correspondences. 1. Using the above elements.C. especially. 8 [35] Roviaro v. 13 [41] Section 16.17[45] Second. The judicial test is that an advisor must be in “operational proximity” with the President. being a member of President Arroyo’s cabinet. In Senate v.” In Chavez v. 12 [40] Section 18. 53. Article VII. to wit: 1) The protected communication must relate to a “quintessential and non-delegable presidential power. petitioner can be considered a close advisor. the concept of presidential communications privilege is fully discussed. 103. 2d 1336. 1984). 59-61. Inc. i. 738 F. this Court held that there is a “governmental privilege against public disclosure with respect to state secrets regarding military. 6-8 (1953). 333 U.. United States. Article VII. Under the “operational proximity” test. United States. The above cases. BAR OPERATIONS 2011 Page 12 . Reynolds.” 2) The communication must be authored or “solicited and received” by a close advisor of the President or the President himself. In Re Sealed Case and Judicial Watch. there is no adequate showing of a compelling need that would justify the limitation of the privilege and of the unavailability of the information elsewhere by an appropriate investigating authority. Consistent with the doctrine of separation of powers. such that the information sought “likely contains important evidence” and by the unavailability of the information elsewhere by an appropriate investigating authority. 14 [42] Section 19. Airlines. 105.S. v. 111.GREEN NOTES IN POLITICAL LAW Prepared by: ATTY. somehow provide the elements of presidential communications privilege. 345 U. the claim of executive privilege is highly recognized in cases where the subject of inquiry relates to a power textually committed by the Constitution to the President. First. Waterman Steamship Corp. Inc. the communications elicited by the three (3) questions are covered by the presidential communications privilege. Law Practice and Recent Developments. we are convinced that. Majority of the above jurisprudence have found their way in our jurisdiction.S. Presidential Claims of Executive Privilege: History. 16[44] CRS Report for Congress. the US Supreme Court held 7[34] See United States v. 9 [36] See Friedman v. supra. the information relating to these powers may enjoy greater confidentiality than others. the communications relate to a “quintessential and non-delegable power” of the President. Ermita. such as the area of military and foreign relations. And third.S. In Chavez v.16[44] Simply put. Cir. the communications are “received” by a close advisor of the President. 10 [38] 360 Phil.S. 106-107 (1875).9[36] An area where the privilege is highly revered is in foreign relations. 92 U. 11[39] Supra. LARRY D. diplomatic and other security matters. 10[38] As may be gleaned from the above discussion. Article VII.e. Bache Halsey Stuart Shields. the President is the repository of the commander-in-chief. 353 U.. indeed. the bases are presidential communications privilege and executive privilege on matters relating to diplomacy or foreign relations. GACAYAN information related to pending investigations. if the person invited is already an accused before the Sandiganbayan or facing a case in the Ombudsman in connection with a subject matter related to the House or Senate inquiry. the Supreme Court held that such power was not delegated by Congress to local government units. In NEGROS ORIENTAL II ELECTRIC COOPERATIVE VS.” 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. II. In this regard. Section 21. Senate Blue Ribbon Committee.J. What are the bills that must exclusively originate from the House of Representatives? 17[45] 18 [48] Bernas. SANGGUNIANG PANGLUNGSOD OF DUMAGUETE CITY. it is not unlimited. 155 SCRA 421. G. 72492. 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. May the PCGG Chairman and commissioners refuse to attend inquiries in ad of legislation being done by the Senate because Executive Order No. VI and Section 1. BAR OPERATIONS 2011 Page 13 . This is the reason why the U. XI or the accountability of public officers. Nov. The 1987 Constitution of the Republic of the Philippines. 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. Nov. GACAYAN that invocation of “executive privilege” is unavailing if it involves the commission of a crime and there is already a pending criminal case. As such. There is no general authority to expose the private affairs of individuals without justification in terms of the functions of Congress. Art. No. Senate v. Art. Jr. 1987. it was held that “the power of both houses of Congress to conduct inquiries in aid of legislation is not.) We see no dispute on this. Nor is the Congress a law enforcement or trial agency. In the present case. S. 20. A Commentary. 41-b." It follows then that the rights of persons under the Bill of Rights must be respected. not in a criminal proceeding. 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. Ermita stressed that the validity of the claim of executive privilege depends not only on the ground invoked but. on the procedural setting or the context in which the claim is made. including the right to due process and the right not to be compelled to testify against one's self. It is settled in United States v. III. specific need for evidence in pending criminal trial” outweighs the President’s “generalized interest in confidentiality. 41-a. the present case’s distinction with the Nixon case is very evident. p. But broad as is this power of inquiry. Court was quick to “limit the scope of its decision. 5. 903. "The rights of persons appearing in or affected by such inquiries shall be respected.S. 1 provides that they should not be questioned regarding their activities as such? No.” Unlike in Nixon. 2003 Ed. 1991. Investigations conducted solely for the personal aggrandizement of the investigators or to "punish" those investigated are indefensible. vs.” However. 42. it must be related to and in furtherance of a legitimate task of Congress. Order No.. Supra. Furthermore. The right to information under Art. the information here is elicited. in Nixon. These are functions of the executive and judicial departments of government. also. It violates Section 28. diplomatic or sensitive national security secrets. 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. absolute or unlimited. In Bengzon. Nixon18[48] that “demonstrated. LARRY D. the President did not interpose any claim of need to protect military. but in a legislative inquiry. Art.R. the provision of Exec. 41. 1 regarding their privilege not to attend such hearings is unconstitutional. No inquiry is an end in itself. then he could validly refuse to attend to said hearing. In Nixon.GREEN NOTES IN POLITICAL LAW Prepared by: ATTY. and [3] the Faithful execution clause of the Constitution. mandates the “ADOPTION OF A NATIONAL COMPUTERIZED IDENTIFICATION REFERENCE SYSTEM” and appropriating funds therefore?Is this within his “executive power”? No as held by the Supreme Court in BLAS OPLE VS. What is the so-called “executive impoundment”? It means that although an item of appropriation is not vetoed by the President.GREEN NOTES IN POLITICAL LAW Prepared by: ATTY. by Administrative Order. [2] the executive power drawn from his power as Commander-in-chief. he however refuses for whatever reason. Prescinding from the foregoing precepts. the President. Secretary of Finance. but the Senate may propose or concur with amendments. be authorized to augment any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations. (PHILCONSA VS. An administrative order is an ordinance issued by the President which relates to specific aspects in the administrative operation of the government. Art. purchase of ambulances and computers and other priority projects and activities. GACAYAN Under Section 24. however. [1] authority to impound given to him by Congress. which is supposed to be exercised by the President. ENRIQUEZ. BAR OPERATIONS 2011 Page 14 .R. the President of the Senate.38) 46. bills of local application. VS. not from the House of Representatives. either expressly or impliedly. revenue or tariff bills. the AO establishes a system of identification that is all-encompassing in scope. 43 Phil. the Chief justice of the Supreme Court. 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. RUBEN TORRES. 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. and the heads of the constitutional commissions may. is concerned with the work of applying policies and enforcing orders as determined by proper governmental organs. bills authorizing increase of the public debt. and private bills shall originate exclusively in the House of representatives. It enables the President to fix a uniform standard of administrative efficiency and check the official conduct of his agents. AO 308 involves a subject that is not appropriate to be covered by an Administrative Order. Administrative Power. Otherwise. 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. not by an Administrative Order issued by the President. the Speaker of the house of Representatives. July 23. (L. by law. The President of the Philippines. 235 SCRA 506) 45. not merely to implement it. Proponents of impoundment have invoked at least three (3) principal sources of authority of the President. May the President refuse to enforce a law on the ground that in his opinion it is unconstitutional? No.S. he will be violating the doctrine of separation of powers because by doing so. No. affects the life and liberty of every Filipino citizens and foreign residents and therefore. ET AL. All appropriations. MOON & CO. 127685.” 44. 1998. the Supreme Court held that the E-VAT Law is constitutional even if the same was the VERSION which came from the Senate. he will be arrogating unto himself the power to interpret the law. and credit facilities to qualified beneficiaries as proposed and identified by said Senators and Congressmen.. VI. (NOTE: In Tolentino vs. G. HARRISON. LARRY D. to spend funds made possible by Congress. it is supposed to be a law passed by Congress that implements it. This is so because the Senate is allowed to “propose amendments” to bills which must exclusively originate from the House of Representatives. It is the failure to spend or obligate budget authority of any type.) 43. GACAYAN 47. and other officers are vested in him in this Constitution. 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. other public ministers and consuls. (SEN. 2001 “confirming President Arroyo’s nomination of Senator Teopisto Guingona. 48. her government is de jure. 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. 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. 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. et al. 50. THE TOTALITY OF PRIOR. What is the “totality test” used by the Supreme Court in holding that former President Joseph Estrada resigned as President on January 20. Section 15. President of the Philippines” which was passed on January 24. 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. ad interim appointments are submitted to the Commission on BAR OPERATIONS 2011 Page 15 . ad interim appointments are extended only during the recess of Congress. The essence of an appointment in an acting capacity is its temporary nature. and the Resolution dated February 7. EXEC. AQUILINO PIMENTEL. 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. 2007? THIS IS THE TOTALITY TEST. The temporary appointments are valid. Moreover. such as the office of a department secretary. et al. 51. In case of vacancy in an office occupied by an alter ego of the President. 49. SECRETARY EDUARDO ERMITA. another resolution dated January 24. Yes provided the temporary appointments of cabinet members do not exceed one (1) year. CONTEMPORANEOUS AND POSTERIOR FACTS AND CIRCUMSTANTIAL EVIDENCE BEARING MATERIAL RELEVANCE TO THE ISSUE. Jr.. Art. 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. VIII for him to fill up vacancies in the judiciary within 90 days from the submission of the list of nominees by the Judicial and Bar Council? No. as Vice President of the Philippines”. ambassadors. Congress. 2001 “expressing full support to the assumption into office by VP Arroyo as President of the Philippines”. Art. through a law cannot impose on the President the obligation of automatically appointing the Undersecretary as her alter ego. VII which are the heads of the executive departments.. Is President Gloria Macapagal Arroyo a de jure or a de facto President? If de jure. LARRY D. While both are effective upon acceptance. He must be of the President’s confidence and provided that the temporary appointment does not exceed one (1) year.GREEN NOTES IN POLITICAL LAW Prepared by: ATTY. 2001. or officers of the armed forces from the rank of colonel or naval captain. 472 SCRA 587) 1. vs. the President must necessarily appoint an alter ego of her choice as acting secretary before the permanent appointee of her choice could assume office. There is a need to distinguish ad interim appointments and appointments in an acting capacity. whereas acting appointments may be extended any time that there is a vacancy. (KILUSANG MAYO UNO VS. nor automatically suspend the privilege of the writ. 56." "Supervision" on the other hand means "overseeing or the power or authority of an officer to see that subordinate officers perform their duties. 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. GACAYAN Appointments for confirmation or rejection. BAR OPERATIONS 2011 Page 16 . bureaus and offices. 55. nor supplant the functioning of the civil courts or legislative assemblies. Art. The Supreme Court may review. Previously. April 19. Art. modify. Pano. VII which provides that The President shall have control of all the executive departments . 52. the Executive Secretary acts for and in behalf of the President: and by authority of the President. he has undisputed jurisdiction to affirm. acting appointments are not submitted to the Commission on appointments. 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. 21 SCRA 895). and must promulgate its decision thereon within 30 days from its filing. SILVOSA) 54. there is a definite period for the said suspension unlike before and more importantly. in an appropriate proceeding filed by any citizen. Torres. ET AL. What is the power of control of the President. Acting appointments are a way of temporarily circumventing the need of confirmation by the Commission on Appointments. the sufficiency of the factual basis of the proclamation of martial law or suspension of the privilege of the writ or the extension thereof. 53. LARRY D. the grounds are only invasion and rebellion WHEN THE PUBLIC SAFETY REQUIRES IT. (Lacson-Magallanes Co.GREEN NOTES IN POLITICAL LAW Prepared by: ATTY. "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. EXECUTIVE SECRETARY EDUARDO ERMITA. Likewise.. Inc. 2006 & June 20. Under our constitutional set-up. or even reverse any order of the Secretary of Natural Resources and other Cabinet Secretaries.. 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. such acts of the President may be reviewed not only by the Supreme Court but also the Congress of the Philippines. nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function. May the President validly require all officers and employees under the executive department to maintain ID systems and have ID cards? Yes in accordance with her power of control under Section 17. 2006) But not for a national ID system which includes civilians as held in Ople vs. He shall ensure that the laws be faithfully executed. Where the Executive Secretary acts "by authority of the President" his decision is that of the President. supra. The Office of the Executive Secretary is an auxillary unit which assists the President. Distinguish it from power of supervision. What is the “take care power” of the President of the Philippines? It is the power of the President under Section 17. such would be considered “political question” which is beyond the review powers of the courts. (MONDANO VS. A state of martial law does not suspend the operation of the Constitution. VII of the Constitution. vs. the decision of the constitutional question must be necessary to the determination of the case itself. Likewise. there must be an actual case or controversy. 59. Section 1. it was held that in declaring a state of national emergency. such as the taking over of privately owned public utility or business affected with public interest. May 3. 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.” Legislative power is peculiarly within the province of the Legislature. and fourth. 171396. RANDOLF S.GREEN NOTES IN POLITICAL LAW Prepared by: ATTY. DAVID. When may the courts still validly decide moot and academic cases? BAR OPERATIONS 2011 Page 17 . No. invasion or rebellion. GLORIA MACAPAGAL-ARROYO. a provision calling on the AFP to prevent or suppress lawless violence. GACAYAN During the suspension of the privilege of the writ.R. second. et Al VS. he shall be released. 58. 57. Article XII. otherwise. LARRY D. May the President under the 1987 Constitution validly issue decrees after declaring a state of national emergency. is also unconstitutional.. Article VII of the Constitution. 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. the exercise of emergency powers. the constitutional question must be raised at the earliest opportunity. This requires a delegation from Congress. President Arroyo did not only rely on Section 18. third. a provision on the State’s extraordinary power to take over privately-owned public utility and business affected with public interest. et al. Article VI categorically states that “[t]he legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives. any person thus arrested or detained shall be judicially charged within 3 days.” To be sure. She also relied on Section 17. G. 2006. The Supreme Court ruled that the assailed PP 1017 is unconstitutional insofar as it grants President Arroyo the authority to promulgate “decrees. AS PRESIDENT AND COMMANDER-IN-CHIEF. petitioners have to raise a question of unconstitutionality. What are the requisites of judicial review? Courts may exercise the power of judicial review only when the following requisites are present: first. February 3. 1991. G. No. May 27. G. ) 60. as amended. courts decline jurisdiction over such case20 or dismiss it on ground of mootness. Court of Appeals. Define locus standi. second.” 21 In private suits. 383 SCRA 577. otherwise moot and academic. standing is governed by the “real-parties-in interest” rule as contained in Section 2. the plaintiff’s standing is based on his own right to the relief sought. It provides that “every action must be prosecuted or defended in the name of the real party in interest.23 where it was held that the plaintiff in a taxpayer’s suit is in a different category from the plaintiff in a citizen’s suit. No. 429 SCRA 736)..R. only those who are “directly injured” by the said law or contract entered into by the government. 120 SW2d 765 (1938). the United State Supreme Court laid down the more stringent “direct injury” test in Ex Parte Levitt. third.24 later reaffirmed in Tileston v. Locus standi is defined as “a right of appearance in a court of justice on a given question. In the former. No. 421 SCRA 21.R.” Accordingly. 159085. to prevent just about any person from seeking judicial interference in any official policy or act with which he disagreed with. 21 Black’s Law Dictionary. there is a grave violation of the Constitution (Province of Batangas vs.R. Romulo. 23 275 Ky 91.19 so that a declaration thereon would be of no practical use or value. if: first. p. De Dabao v.R.R. when constitutional issue raised requires formulation of controlling principles to guide the bench.GREEN NOTES IN POLITICAL LAW Prepared by: ATTY. Executive Secretary. 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. G. 2001. while in the latter. 147780. LARRY D. Guingona. he is but the mere instrument of the public concern However. Silk. May 27. No. mere taxpayer has the capacity to sue and question such act. Commission on Elections. What are the tests of locus standi in the Philippines? The original was: [1] If the act involves the disbursement of public funds. and fourth.”22 Succinctly put. [2] If it does not involve disbursement of public funds. the bar. July 23. Acop v. The “moot and academic” principle is not a magical formula that can automatically dissuade the courts in resolving a case.R. and the public (Province of Batangas vs. Ullman. Nos.25 The same Court ruled that for a private individual to invoke the judicial power to determine the validity of an executive or legislative action. 421 SCRA 656. 941. the case is capable of repetition yet evading review (Albaña v. January 26. and thus hinders the activities of governmental agencies engaged in public service. 125 (1951). 134855. 2004. No. BAR OPERATIONS 2011 Page 18 . he must show that he has sustained a direct injury as a result of that action. Perez. 2004. 2004. 357 SCRA 756). 19 Province of Batangas v.. G. supra. Case law in most jurisdictions now allows both “citizen” and “taxpayer” standing in public actions. May 10. Warner Barnes & Co. 22 Salonga v. and it is not sufficient that he has a general interest common to all members of the public. GACAYAN A moot and academic case is one that ceases to present a justiciable controversy by virtue of supervening events. Courts will decide cases. Romulo). G. . Rule 3 of the 1997 Rules of Civil Procedure. Vda. 435 SCRA 98. July 2. 429 SCRA 736. 6th Ed. The distinction was first laid down in Beauchamp v. G. 2002. 152774. Sanlakas v. the plaintiff is affected by the expenditure of public funds. 2004. 163302. 20 Royal Cargo Corporation v. 61. 103055-56. Romulo. 2004. Jr.R. 88 Phil. the exceptional character of the situation and the paramount public interest is involved (Lacson vs. 152774. Generally. Civil Aeronautics Board. No. 28 Pascual v.GREEN NOTES IN POLITICAL LAW Prepared by: ATTY. 1945 (Unreported). 1985. No. 30 77 Phil. De Guia v. and civic organizations to prosecute actions involving the constitutionality or validity of laws. public interest was definitely involved and this clothed petitioner with the legal personality under the disclosure provision of the Constitution to question it. brushing aside. 199 SCRA 750. 1991. Albano v. BAR OPERATIONS 2011 Page 19 . brushing aside technicalities of procedures. 25 318 U.R. July 14. where the Court held that the importance of the issues involved concerning as it does the political exercise of qualified voters affected by the apportionment. 1990.” L-No. November 7. May 6. Comelec. Association of Small Landowners in the Philippines. it has the discretion to waive the requirement. where the Court held that petitioner as a taxpayer. 100318. not covered by the definition of a “proper party. No. 72119. May 31. Tuvera. G. Sec. 197 SCRA 771. No. No.27 Manila Race Horse Trainers’ Association v. No. 191 SCRA 452. Civil Service Commission. the people are the real party in interest. has the personality to file the instant petition. January 11. and it is sufficient that the petitioner is a citizen interested in the execution of the law.R. regulations and rulings. if we must. May 29. July 30.R. G.S. No. Legaspi v. 1959 (Unreported).33 Thus. 331 (1960). Gonzales v. 1975. 1989.R. 29 110 Phil. L. nonetheless considering its important role in the economic development of the country and the magnitude of the financial consideration involved. necessitates the brushing aside of the procedural requirement of locus standi. President of the Senate. the Court has adopted a rule that even where the petitioners have failed to show direct injury. Indeed. November 19. Inc. pertains to illegal expenditure of public money. 1988. G.31 where the “transcendental importance” of the cases prompted the Court to act liberally.R.32 this Court resolved to pass upon the issues raised due to the “far-reaching implications” of the petition notwithstanding its categorical statement that petitioner therein had no personality to file the suit. allowing ordinary citizens. Public Estates Authority. technicalities of procedure. No. No. Jr. where the Court held that where serious constitutional questions are involved. 446. 136 SCRA 27. 1991. 27 G. Tan . July 11. 2947. 1989. G. as the issues involved.R. Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas. Felix. 175 SCRA 343.30 However. 1012 (1947). 34 G. where the Court held that while no expenditure of public funds was involved under the questioned contract.” The Vera doctrine was upheld in a litany of cases. 63915. Secretary of Public Works29 and Anti-Chinese League of the Philippines v. the requirement of personal interest is satisfied by the mere fact that the petitioner is a citizen and part of the general public which possesses the right. they have been allowed to sue under the principle of “transcendental importance. G. where the Court held that where the question is one of public duty and the enforcement of a public right. Maceda v. the “transcendental importance” to the public of the cases involved demands that they be settled promptly and definitely. there is a chain of cases where this liberal policy has been observed. Vera. 100308.” nonetheless.34 where the Court ruled that the enforcement of the constitutional right to information and the equitable diffusion of natural resources are matters of transcendental importance which clothe the petitioner with locus standi. or will sustain direct injury as a result . June 30. Macaraig.100420. Comelec. No. LARRY D.R. Reyes. 384 SCRA 152.S. 208 SCRA 420. in determining the validity of the implementation of the CARP. 88291. Araneta v. Comelec. Tañada v. 1987. G. 28 G. 133250. No.. 163 SCRA 371. De la Fuente. where the Court ruled that while petitioners are strictly speaking. July 9. being a mere procedural technicality.. where the Court held that in cases involving an assertion of a public right. where the Court held that objections to taxpayers’ lack of personality to sue may be disregarded in determining the validity of the VAT law. January 31.” Pertinent are the following cases: (1) Chavez v. 83551. the transcendental importance to the public of these cases demands that they be settled promptly and definitely. April 24. 1992. Such liberality was neither a rarity nor accidental.R. 633. v. No.R. where the Court held that it enjoys the open discretion to entertain taxpayer’s suit or not and that a member of the Senate has the requisite personality to bring a suit where a constitutional issue is raised. Osmeña v. In Aquino v. 78742. 62 SCRA 275. 150 SCRA 530.R. 26 65 Phil. 175 SCRA 264. 56 (1937). GACAYAN This Court adopted the “direct injury” test in our jurisdiction. the requirement of locus standi may be waived by the Court in the exercise of its discretion. 104712. 87636. No. 24 302 U. In People v. 31 32 33 84 Phil. G. members of Congress. v. such as. Macaraig. 117. G. 2002. of Agrarian Reform.26 it held that the person who impugns the validity of a statute must have “a personal and substantial interest in the case such that he has sustained. This was done in the 1949 Emergency Powers Cases. 100417. Dinglasan. 40004.R. 368 (1949) The Court held: “Above all. Custodio v. Inc. Jr. 81311. Inc. Comelec. it cannot sue as a taxpayer absent any allegation that public funds are being misused. April 11. (3) Lim v.37 that in cases of transcendental importance. the following rules may be culled from the cases decided by this Court. for concerned citizens. is not a real party-in-interest as it had not demonstrated any injury to itself or to its leaders. As to 35 G. By way of summary. and 5. members or supporters. In Kilosbayan. No. thus impairing their legislative powers. 4. GACAYAN (2) Bagong Alyansang Makabayan v.36 while the Court noted that the petitioners may not file suit in their capacity as taxpayers absent a showing that “Balikatan 02-01” involves the exercise of Congress’ taxing or spending powers. Perez. Executive Secretary. 380 SCRA 739. 2002. 342 SCRA 449. more so where it does not raise any issue of constitutionality. concerned citizens. it reiterated its ruling in Bagong Alyansang Makabayan v.R. Significantly. there must be a claim of illegal disbursement of public funds or that the tax measure is unconstitutional. there must be a showing that the issues raised are of transcendental importance which must be settled early. 138698. the cases involve constitutional issues. 37 Supra. Taxpayers. for taxpayers. there must be a showing of obvious interest in the validity of the election law in question. Inc. 138587. Nor can it sue as a concerned citizen as it does not allege any specific injury it has suffered. Nos. 138572. October 10.41 the Court ruled that only the petitioners who are members of Congress have standing to sue.” In Lacson v. 36 G. Zamora. LARRY D. Moreover. Zamora.GREEN NOTES IN POLITICAL LAW Prepared by: ATTY.R. Morato. In Telecommunications and Broadcast Attorneys of the Philippines. 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. the cases must be settled promptly and definitely and standing requirements may be relaxed. as they claim that the President’s declaration of a state of rebellion is a usurpation of the emergency powers of Congress. 138680. v. BAR OPERATIONS 2011 Page 20 . there must be a claim that the official action complained of infringes upon their prerogatives as legislators. Laban ng Demokratikong Pilipino (LDP). 2. 151445.38 the Court ruled that the status of Kilosbayan as a people’s organization does not give it the requisite personality to question the validity of the on-line lottery contract. 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. Executive Secretary. provided that the following requirements are met: 1. 138570.39 the Court reiterated the “direct injury” test with respect to concerned citizens’ cases involving constitutional issues. for legislators. for voters. v. 3.35 wherein the Court held that “given the transcendental importance of the issues involved. and legislators may be accorded standing to sue. In Sanlakas v. voters.40 the Court ruled that one of the petitioners. recent decisions show a certain toughening in the Court’s attitude toward legal standing. 2000. 402. In short. he has no power to take over privately-owned public utility or business affected with public interest. 82 Phil.. February 3. 247. State ex rel 38 G. No. 135 N. the President has no absolute authority to exercise all the powers of the State under Section 17. In times of national emergency. during the emergency and under reasonable terms prescribed by it. 642. 1995. 62. generally before or after the institution of the criminal prosecution and sometimes after conviction. 35 GA.. Article VII. Ex parte Law. because the courts take no notice thereof. Nor can he determine when such exceptional circumstances have ceased. 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. April 21. which reads: Sec. the President has no power to point out the types of businesses affected with public interest that should be taken over. Philippine Constitution. 39 G. 40 41 G. while amnesty is granted to classes of persons or communities who may be guilty of political offenses. VII and Section 5. (section 10[6]. 147799. 118910. Likewise. while amnesty looks backward and abolishes and puts into oblivion the offense itself. 159085. and it is a public act of which the courts should take judicial notice. LARRY D.C.R. 147810. unless such rights be expressly restored by the terms of the pardon. 357 SCRA 756. 250 SCRA 130. BAR OPERATIONS 2011 Page 21 . 289 SCRA 337. Distinguish pardon from amnesty. Article VII in the absence of an emergency powers act passed by Congress. The President cannot decide whether exceptional circumstances exist warranting the take over of privately-owned public utility or business affected with public interest. 147780. [3] Pardon looks forward and relieves the offender from the consequences of an offense of which he has been convicted. 47 S. it abolished or forgives the punishment. the State may. when the public interest so requires. As held in BARRIOQUINTO VS. rules and regulations without the favorable recommendation of the Commission on Elections.C. however. the Court declared them to be devoid of standing. November 16. State vs. GACAYAN petitioners Sanlakas. 2001. temporarily take over or direct the operation of any privately-owned public utility or business affected with public interest. 132922. May 10. Revised Penal Code). 1998. 118. 17. 421 SCRA 656. 2004. What is the “take over” provision of the Constitution." and it "in no case exempts the culprit from the payment of the civil indemnity imposed upon him by the sentence" article 36. and for that reason it does ""nor work the restoration of the rights to hold public office. 296. No.GREEN NOTES IN POLITICAL LAW Prepared by: ATTY. May the President validly exercise the same? This is Section 17.R. G. equating them with the LDP in Lacson. Partido Manggagawa. Blalock. Art. (Section 19. that is.R. or the right of suffrage. No. 285. No. 403. and Social Justice Society. without legislation.. FERNANDEZ. [2] Pardon is granted to one after conviction (of ordinary crimes) .. 242. Article XII . while amnesty by Proclamation of the Chief Executive with the concurrence of Congress.R. 62 N.E. In re Briggs. Art. IX-C)) 64. 147781. While the President alone can declare a state of national emergency. without legislation. 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. 63. What are the limitations of the President’s power of executive clemency? The same is not available in cases of impeachment as well as violation of election laws. 67. 1991. 15. 476. Before one may validly apply for executive clemency (pardon or amnesty) he MUST ADMIT HAVING COMMITTED THE ACTS WHICH RESULTED IN HIS IMPRISONMENT. a pardon looks to the future. Eby. vs.Y. ed. As held in TORRES VS. was binding and conclusive upon him. in accepting the terms under which the parole had been granted. It is not retrospective.W 52. the President may contract or guarantee foreign loans on behalf of the Republic of the Philippines subject to the following conditions: a. FACTORAN. 152 SCRA 272. It does not impose upon the government any obligation to make reparation for what has been suffered. N. subject to such limitations as may be provided for by law. It affords no relief for what has been suffered by the offender.. 66. 61. 1989.. 170 Mo. GONZALES. 35 S. Exec. receive backpay for lost earnings and benefits. 497. May a public officer. VII. 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.S. 79. there must be prior concurrence of the Monetary Board. Is it required for the person applying for amnesty to admit his guilt before his amnesty application be considered? Yes as held in VERA VS. 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.February. 236 U. Burdick vs United States. who has been granted an absolute pardon by the Chief Executive. cannot be entitled to reinstatement. 267. 71 S. Art. entitled to automatic reinstatement to her former position without need of a New appointment? No. GACAYAN AnheuserBusch Brewing Ass'n. May the power of executive clemency applied to administrative cases like the suspension of a Provincial Governor? Yes. 65. 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. Ct. As held in MONSANTO VS. that which has been done or suffered while they were in force is presumed to have been rightfully done and justly suffered. "Since the offense has been established by judicial proceedings. and no satisfaction for it can be required. b.. As held in Tesoro vs. Orbos. Fernandez. Director of Prisons. Sec. This rule abandoned the contrary ruling in Barrioquinto vs.) [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. It makes no amends for the past. 271.." This would explain why petitioner. This was the ruling of the Supreme Court in Llamas vs. VII of the Constitution may be used either in a criminal case or in an administrative case. BAR OPERATIONS 2011 Page 22 . PEOPLE. LARRY D. 69. 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. unless appointed again by the appointing authority. Oct.GREEN NOTES IN POLITICAL LAW Prepared by: ATTY. The word “conviction in Section 19. 59 Law. 68.. What are the requisites before the President or his representatives may validly contract or guarantee foreign loans? Under Section 20. 7 SCRA 152. Art. though pardoned. What are the cases to be decided by the Supreme Court en banc? All cases involving the constitutionality of a treaty. LARRY D. What is a political question? In ALMARIO VS. Cuenco. 103 Phil. it was defined as a question which deals with the necessity.. the Monetary Board shall. 21 SCRA 774 . Where the vortex of the controversy refers to the legality or validity of the contested act. the same is political and not justiciable In Sanidad vs. and containing other matters as may be provided for by law. 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. after approval. expediency and wisdom of a particuar act. international or executive agreement. 70. or law. COMELEC. and other regulations. the matter is definitely justiciable or non-political. Art. 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. What is the extent of the fiscal autonomy granted to the judiciary under the 1987 Constitution? As provided under Section 3. GACAYAN Further. 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. May judicial power be exercised by the Supreme Court in cases of decisions of the House of Representatives Electoral tribunal since Section 16. instructions. 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. 71. In Tanada vs. BAR OPERATIONS 2011 Page 23 . 73 SCRA 333. 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. 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. which shall be heard by the Supreme Court en banc. not the legality of a particular act. or operation of presidential decrees. 73. ordinances. proclamations. PINEDA) 72. Comelec. when the crux of the problem deals with the wisdom of an act. shall be automatically and regularly released.GREEN NOTES IN POLITICAL LAW Prepared by: ATTY. including those involving the constitutionality. Also. VI of the Constitution provides that the HRET is the “sole judge” of all contestests involving the election. orders. Or in Gonzales vs. returns and qualifications of the members of the House of Representatives? Yes if there is allegation of grave abuse of discretion amounting to lack or in excess of jurisdiction on the part of the HRET (BONDOC VS. ALBA. application. 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. 74. VIII. it is political). 127 SCRA 6. At. within 30 days from the end of every quarter of the calendar year. political questions was defined as questions which are neatly associated with the wisdom. assessment. 2) checking function or to declare the law unconstitutional. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases. impost. the admission to the practice of law.GREEN NOTES IN POLITICAL LAW Prepared by: ATTY. the Integrated Bar. Section 5. and shall not diminish. or any penalty imposed in relation thereto. pleading . proclamation. LARRY D. final judgments and orders of lower courts in: (a) All cases in which the constitutionality or validity of any treaty. instruction. (b) All cases involving the legality of any tax. t he Supreme Court shall have the following powers: (1) Exercise original jurisdiction over cases affecting ambassadors. presidential decree. shall be uniform for all courts of the same grade. (Section 5 (5). What are the powers of the Supreme Court? As enumerated in Art. 76. the same shall be decided by the en banc accepted by the latter. (6) Appoint all officials and employees of the judiciary in accordance with the civil service law. prohibition. (5) Promulgate rules concerning the protection and enforcement of constitutional rights. practice . Such temporary assignment shall not exceed 6 months without the consent of the judge concerned. and procedure in all courts. other public ministers and consuls. GACAYAN Also if two (2) divisions of the Supreme Court have conflicting decisions. order. and over petitions for certiorari. (e) All cases in which only an error or question of law is involved. (d) All criminal cases in which the penalty imposed is reclusion perpetua or higher. (3) Assign temporarily judges of lower courts to other stations as public interest may require. or affirm on appeal or certiorari as the law or the Rules of Court may provide. or toll. Cases referred to by the division to the banc involving novel questions of law . revise. VIII) 77. mandamus. quo warranto. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court. What are the 3-fold Functions of Judicial Review? These are the: 1) legitimizing function or to declare the law valid and constitutional. modify. (4) Order a change of venue or place of trial to avoid a miscarriage of justice. Art. reverse. BAR OPERATIONS 2011 Page 24 . dismissal of judges and disbarment of lawyers are also decided by the Supreme Court en banc. law. What is the “writ of amparo”? It is a writ issued by the courts for the protection and enforcement of the constitutional rights of a person under detention. VIII. (2) Review. increase or modify substantive rights. 75. Finally. the same shall be resolved by the Supreme Court en banc. or regulation is in question. (c) All cases in which the jurisdiction of any lower court is in issue. and habeas corpus. international or executive agreement. and legal assistance to the underprivileged. ordinance. integrity. INCIONG.. 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. VDA DE ESPIRITU VS. IAC. Art. March 20. Are the different administrative and quasi-judicial bodies (COMELEC. ENRILE. MEER. the decision of lower courts declaring a law unconstitutional is subject to review by the Supreme Court. (IN RE: JUDGE RODOLFO MANZANO. COMELEC. 1988) 84. valid and binding. 93 Phil. treaty. MANGCA VS. Up to when are members of the judiciary entitled to hold on to their positions? Section 11. 1987) 79. (DE AGBAYANI VS. etc. 83. sitting separately could not declare a law. CARRASCOSO. 78. Art. treaty. It applies only to the courts as defined or included by Section 1. etc. as shown by Section 5 [2] (a). CFI. As such. (YNOT VS. treaty. This was the ruling in NITAFAN VS. May an RTC Judge be appointed as a member of the Provincial Peace and Order Council of the place where he holds office? No. probity and independence. DAVID. What is the “operative fact doctrine”? It simply means that the declaration of unconstitutionality of a law. ( AIR FRANCE VS. 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. VIII provides that the Members of the Supreme Court and judges of the lower court shall hold office during good behavior until they reach the age of 70 years or become incapacitated to discharge the duties of their office. BUSCAYNO VS. PNB. VALLADOLID VS. may the salaries of the members of the judiciary be taxed without violating Section 10. LARRY D. 47 SCRA 354. BAR OPERATIONS 2011 Page 25 . Likewise. 552 and ENDENCIA VS. MILITARY COMMISSIONS) bound by the requirement of Section 14. 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. It is only the declaration of unconstitutionality which is the “operative fact” which would stop the people from complying with its provisions. VIII.GREEN NOTES IN POLITICAL LAW Prepared by: ATTY. unconstitutional? Yes because the power of judicial review is just a part of judicial power which is available to all courts (Section 1. Under the 1987 Constitution. Article VIII which would have the effect of decreasing the same? No. Art. COMMISSIONER. May inferior courts also exercise the power of judicial review (declaring a law. October 5. is prospective. etc. 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. VIII). The Supreme Court en banc shall have the power to discipline judges of lower courts. 112 SCRA 273. all acts done in connection with the said law before its declaration of unconstitutionality shall be considered legal. Art.. NAPOLCOM. 696 82. 85 Phil. 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. 18 SCRA 155. 102 SCRA 7. 81. NLRC. GACAYAN 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. 38 SCRA 429) 80. 152 SCRA 284 which abandoned the contrary rulings in the cases of PERFECTO VS. and unless reduced by the Supreme Court. by competitive examination. What are covered by the powers of the Civil Service Commission? Under Section 2. 88. 12 months for all lower collegiate courts. Under Section 18. 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. Article IX-B of the Constitution. Art. 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. GACAYAN 121 SCRA 205. and agencies of the government. NUNAL VS. MALACORA VS. the civil service embraces all branches. including government owned and controlled corporations WITH ORIGINAL CHARTERS. primarily confidential or highly technical. This is so because it is “impossible” for the Supreme Court to comply with such provision considering the volume of cases filed before it. 86. 90. MALLARE. 89.GREEN NOTES IN POLITICAL LAW Prepared by: ATTY. 33 SCRA 330) Highly technical position requires the appointee thereto to possess technical skill or training in the supreme or superior degree. Art. Besa vs. brief or memorandum required by the Rules of Court or by the court itself. (CORPUS VS. VIII. CA. 152 SCRA 205) 87. however. 127 SCRA 75. Is the position of City Engineer of Baguio City a “highly technical” position? No. VIII mandatory or merely directory? Section 15. CA. 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. CA.” (DE LOS SANTOS VS. CRUZ. subdivisions. VII. Is the requirement under Section 15. instrumentalities. 87 Phil. such as that head of a department. The position of City Engineer of Baguio City is technical “but not highly so. 117 SCRA 435. 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. 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. Art. VIII is mandatory in all courts except the Supreme Court where said provision is considered merely directory. 169 SCRA 356 and Mangelen vs. 121 SCRA 51 and DE ROMA VS. A case shall be deemed submitted for decision or resolution upon the filing of the last pleading. 289) BAR OPERATIONS 2011 Page 26 . LARRY D. CA 98 SCRA 424. What are the periods given to the different courts to decide cases before them? Under Section 15. PNB. MARCELINO VS. and except as to positions which are policy determining. CA. and 3 months for all other lower courts. 215 SCRA 230) 85. Art. LOOD. NAPOLCOM VS. 209 SCRA 677) 96. Art. employees form unions for purposes of collective bargaining and to strike against the government? As held in ALLIANCE OF GOVT. June 1. 180 . 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. 1989. 1987. 124 SCRA and Executive Order No. Yorac. its powers are to enforce and administer all laws relative to the conduct of election. 1990. 1993 and Torio vs. but not his assistant. IX-C provides that “In no case shall any member be appointed or designated in a temporary or acting capacity. Deputize law enforcement agencies. including the AFP. May government employees be removed without cause as a result of a government reorganization? No. except religious groups c.( DARIO VS. What are the more important powers of the COMELEC? Under Section 2. IX-C. government employees may form unions but not authorized to strike or demand for collective bargaining agreement with the government. Register political parties. February 26. initiative. ONGPIN. as held in CADIENTE VS. CSC. Art. FLOREZA VS. 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”. employees to form unions. What is important is that the appointee meets all the qualifications for the said position. WORKERS VS. IT DOES NOT HAVE THE POWER TO SUBSTITUTE THE APPOINTEE CHOSEN BY THE APPOINTING AUTHORITY WITH ANOTHER WHICH IT BELIEVES TO BE MORE QUALIFIED. May gov't. plebiscite. MOLE. authorizing govt.GREEN NOTES IN POLITICAL LAW Prepared by: ATTY. Romualdez vs. August 8. May a person be appointed in a temporary capacity as a Commissioner of the Commission on Elections? No. SANTOS. DOTC vs. 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 must be based on just cause and with due process. 93. CSC. Dec.original jurisdiction over all contests relating to the elections.. which is “An act to protect the security of tenure of civil service officers and employees in the implementation of government reorganization. “)Brillantes vs. 94. MENDOZA VS. referendum and recall…. LARRY D. This is clear from RA 6656. 95. 1991) 97. GACAYAN 91. 145 SCRA where it was held that The City Legal officer is a primarily confidential officer. returns. File complaints for violation of election laws BAR OPERATIONS 2011 Page 27 . CA. 18. b. 1991.” There must be full compliance of the due process requirement. Is the position of City or Provincial Legal Officer a primarily confidential position? Yes. June 4. Also. the Provincial Legal Officer is a primarily confidential office. As held in Medenilla vs. The same was reiterated in SAMSON VS. CSC. Is there such a thing as “next-in-rank” or seniority rule in filling up vacancies in the classified civil service? No. June 10. CSC. Section 1. 142 SCRA 280. and qualifications of all elective regional. October 3. August 12. MISON. February 19. 1991. 1988 . 92. QUISUMBING. 1990. it has the power to: a. . JR. because there was “INVOLUNTARY RENUNCIATION” of his 3 rd terms. 1998) 102-a. 2001 and 2004 elections. COMELEC. HON. Regulate the enjoyment or utilization of all franchises for the operation of transportation and other public utilities. 2007? BAR OPERATIONS 2011 Page 28 . 1997 and 2002 Barangay elections. His term ended on June 30. Montebon was elected Municipal Councilor of Tuburan. not power of control as enunciated in Drilon vs. September 3.R. 99. 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.. 133495. Is he qualified to run for Barangay Captain of his barangay during the barangay elections of October. the 3-term limit applies only if the official was DULY ELECTED to the said position for three (3) consecutive terms. X of the 1987 Constitution. COMELEC. LARRY D. 101. the Vice Mayor died and he took over the said position by way of succession in accordance with the Local Government Code. GACAYAN d. The intent to remain in the new domicile of choice must be for an indefinite period of time. Nicasio Bolos. ET AL. Those involving barangay officials shall be filed with the MTC whose decision is likewise subject to appeal to the COMELEC whose decision in both instances is final and not appealable. 98. As held by the Supreme Court in the case of PROVINCE OF BATANGAS VS. is mandated with no conditions imposed for its release. 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. Lim. CAPCO. Jr. COMELEC. Without having completed his 3 rd term. there must be animus manendi coupled with animus non revertendi. In 2005. Is the 3-term limit of elected local officials applicable to a term acquired through succession? No. Where must election cases involving city and provincial officials be filed? It must be filed with the COMELEC. and JOSE T. 2007 elections? Yes. must be voluntary and the residence at the new domicile must be actual. 2007. 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. Dauis. G. it was held that to validly effect a change of residence. not by succession. 100. was elected Barangay Captain of Barangay Biking. ALBERTO ROMULO. 2008) 102-b. May 27. 235 SCRA 135. particularly the IRA. No. media of communication. (BENJAMIN BORJA VS. 102. He was forced by law to vacate his position as Municipal Councilor. April 8. Bohol during the 1994. automatic release of funds of Local Government Units. Bohol during the 2004 National and Local Elections and won. He was number councilor in the election of 2004. 2004. 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 with the courts. Cebu during the 1998.GREEN NOTES IN POLITICAL LAW Prepared by: ATTY. May validly run again for Municipal Councilor during the May.. local governments have fiscal autonomy under Art. It was not voluntary which could have resulted in the counting of his election in 2004 as his 3 rd term. he ran for Municipal Councilor of Dauis. (MONTEBON VS. VS. and BAR OPERATIONS 2011 Page 29 . b. and [b] COUPLED WITH CONGRESS TAKING INITIAL ACTION OF SAID COMPLAINT. rules and regulations wherein only the COMELEC has the power to investigate and to file the appropriate information in court. 415 SCRA 44. other high crimes. trial and punishment according to law. March 17. 2009) 103. 142 SCRA 727 and Padilla vs. 214 SCRA 735 abandoning the doctrines in PAREDES VS. (TAN VS. city. (Corpuz vs. who shall vote in the plebiscite to be conducted? All the residents of the political units affected. must participate in the plebiscite. 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. treason.” 109.. how it shall be taught. EXECUTIVE SECRETARY. 136 SCRA 633) 104. November 10. an impeachment complaint deemed “initiated” to be a bar to the filing of another complaint within a 1-year period upon its [a] filing. 149 SCRA 281) 108. merged or abolished. METRO MANILA COMMISSION. 106. ET AL. (BOLOS. i. COMELEC. COMELEC. 128 SCRA 6 and LOPEZ VS. 105. bribery. SPEAKER JOSE DE VENECIA. What is the extent of academic freedom on the part of schools? It includes the power to determine: a. His non-completion of his 3rd term WAS VOLUNTARY when her run for Municipal Councilor. or betrayal of public trust”. 1973 Constitution. LARRY D. 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. graft and corruption. What are the grounds for impeachment? Only for “Culpable violation of the constitution. c. former and new local government unit to be formed. Section 8 [1]. or its boundary substantially altered. 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. JR. COMELEC. Tanodbayan. In the creation of a new province. what may be taught. 2003. only institutions of higher learning enjoy academic freedom because the provision then states that “all institutions of higher learning shall enjoy academic freedom (Art. GACAYAN No more because he was elected to three consecutive terms. XV.” 107. When is an impeachment complaint deemed “initiated” to bar another complaint within a period of one year? As held in FRANCISCO VS.GREEN NOTES IN POLITICAL LAW Prepared by: ATTY. who may teach. 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. municipality or barangay or when it will be divided.e. 40 SCRA and SANTIAGO VS. it will be distracted from performing its functions to serve the people and it will be left just answering cases in court). 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”. The Supreme Court. 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. it has consented or waived said right to sue). 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. the government is not allowed to invoke its immunity from suit if by doing so. 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. (RAYO VS. Philippine Political Law. 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. (MINISTERIO VS. (1962) and the concurring opinion of Justice Frankfurter in Sweezy v. it certainly can also determine on whom it can confer the honor and distinction of being its graduates. 110. it descended to the level of an individual making it susceptible to counterclaims or suits. VS. 491. 1999. CFI OF BULACAN. citing Sinco. RUIZ. LARRY D. Are local governments also entitled to invoke immunity from suit? BAR OPERATIONS 2011 Page 30 . 111. it will be causing an injustice to its citizens. New Hampshire (354 US 234 [1957]. REPUBLIC. This was the ruling in U. “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. ( ANGELES VS. GARCIA VS. 112 SCRA 26) This rule was reiterated in the cased of DE LA SALLE UNIVERSITY VS. It should be EXCLUSION. 116. who may be admitted to study"' (Emphasis supplied. by reason of sovereignty (the people shall not be allowed to sue the very entity that gives it said right. Is the US Government also immune from suit in the Philippines in connection with the exercise of its governmental functions? Yes. CA (2008) where a rumble between two fraternities took place outside the school campus but the students involved were EXPELLED by the school. CA.S. CFI of Cebu. SISON.) and by reason of consent (when the people ratified the Constitution which includes the provision that the State cannot be sued without its consent. As held in UP BOARD OF REGENTS VS. It is only when the contract involves its “jus gestiones” or business or proprietary functions that it may be sued. 113. Also.GREEN NOTES IN POLITICAL LAW Prepared by: ATTY. GACAYAN d. they are not allowed to enroll at the De La sale but they should be given transfer credentials so that they may enroll in another school. 87 SCRA 294) 115. 68 SCRA 277). FACULTY ADMISSION. meaning. August 31. 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 cannot be sued. Academic freedom is given a wide sphere of authority. 114. however. while conceding the power of the school over its students held that the penalty of expulsion is too harsh a penalty. If an institution of higher learning can decide on who can and cannot study in it. 112. 110 SCRA 456). sauna parlors. CITY MAYOR. REPUBLIC. VILLEGAS. 260 SCRA 319. (VILLANUEVA VS. (GUAZON VS. May the City of Manila validly prohibit the operation of night clubs. beerhouses. massage parlors. 1987. US VS. not governmental. DE VILLA) e. etc. (AGUSTIN VS. February 13. GACAYAN Yes.V. 117. 1967) 2-b. LARRY D. EDU. TORIBIO. a town fiesta is a business or proprietary function. since no law requires any town. September 21. 85 SCRA 599) 117. (TORIO VS. SECRETARY.. July 31. 15 Phil. PARAS. CANCHELA. 11155) 2-a. because the government shall not enrich itself at the expense of its citizens. 180 SCRA 533 [NMAT]. (ERMITA MALATE HOTEL VS. CITY MAYOR. SAN DIEGO. ERMITA MALATE HOTEL VS. JUINIO. TAXICAB OPERATORS VS. to maintain and safeguard peace and order. 475 SCRA 218) Also. 1967) 2. 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. ERMITA MALATE HOTEL VS. 595—apprehend and confine lepers in a leprosarium) c. CITY MAYOR. It is a valid exercise of police power to promote public morals. 50 Phil. 88 SCRA 195. (ASSOCIATION OF SMALL LANDOWNERS VS. CA.. 119 SCRA 897 ) d. 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. 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. FONTANILLA. 175 SCRA 343. curb prostitution or illicit relationships. 87 SCRA 294) PART II CONSTITUTIONAL LAW 1.e. (DE LA CRUZ VS. 101 Phil. CASTANEDA. DIRECTOR OF HEALTH. karaoke bars. et al. province or barangay to hold an annual fiesta. 1983) f.GREEN NOTES IN POLITICAL LAW Prepared by: ATTY. DECS VS. 85 b. ordain. It is the power vested in the legislature by the Constitution to make. to promote and preserve public health. and similar establishments in the Ermita-Malate Area and gives BAR OPERATIONS 2011 Page 31 . July 31. LORENZO VS. Yes. i. HERNANDEZ. July 31. (ICHONG VS. JMM PROMOTIONS VS. 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. establish all manner of wholesome and reasonable laws for the good and welfare of the State and its people. C. 123 SCRA 569. 1967. to promote the economic security of the people. What are the basic purposes/aspects of police power: a. to promote the general welfare. city. VELASCO VS.? A. Define police power. to protect public morals. and [2] show their identification card. comfort and convenience of the people. to promote and protect public safety. 40 SCRA) It does not also apply if it was the government which violated its contract with its citizen (SANTIAGO VS. (DEPARTMENT OF HEALTH VS. require the exercise of police power. ? A. the interests of the public. It violates the due process clause by depriving the owners of said establishments of their legitimate businesses. There is no logic in allowing said establishments in other parts of the City of Manila but not in the Ermita-Malate area. (DIDIPIO EARTH SAVERS MULTI PURPOSE ASSOCIATION VS. represented by Mayor Alfredo Lim VS. represented by MAYOR ALFREDO LIM. which proceeds upon inquiry and renders judgment only after trial (Per Daniel Webster in the DARTMOUTH COLLEGE CASE) 6. (LAWFUL SUBJECT) b. What are the Kinds of Due Process? BAR OPERATIONS 2011 Page 32 . the end does not justify the means. health and prosperity of the state. The distinctions are: 1. even assuming that the said Ordinance is intended to promote public morals. May the City of Manila validly prohibit hotels and motels.00 or change the nature of their business to gift shops. at the Ermita-Malate area. January 20. 5. 118127. the means employed is reasonably necessary for the accomplishment of the purpose and not unduly oppressive to individuals. ET AL. Properties condemned under police power are usually noxious or intended for noxious purpose. 485 SCRA 586) 4. CITY OF MANILA. Likewise. JR. (CITY OF MANILA. property rights of private individuals are subjected to restraints and burdens in order to secure the general comfort. and MALATE TOURIST DEVELOPMENT CORPORATION. April 12. the means employed is constitutionally infirm and not a valid exercise of police power. GACAYAN 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. Finally. JUDGE PERFECTO LAGUIO. 2008) 2-c. ELISEA GOZU. there should be compensable taking if it would result to public use. (WHITE LIGHT CORPORATION VS. The Ordinance is unconstitutional. in the exercise of police power. no compensation shall be paid. 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. G. Define due process. It likewise violates the equal protection clause. In short. No. 2. The Ordinance is unconstitutional and is not a valid exercise of police power.GREEN NOTES IN POLITICAL LAW Prepared by: ATTY. G.R. Due process is a law which hears before it condemns. etc. In the exercise of police power. In such case. not mere particular class. hence . to offer “short time” admission therein? A. 122846. etc. 3.. Otherwise.000. DENR SEC. Distinguish police power with power of eminent domain. 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. 2009. Further. enjoyment of a property is restricted because the continued use thereof would be injurious to public welfare.) 3. restaurants. LARRY D. What are the tests for a valid exercise of police power a. 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. (LAWFUL MEANS).R. No. there is no compensable taking provided none of the property interests is appropriated for the use or for the benefit of the public.. In short. the tribunal must consider the evidence presented. his right to due process was violated and therefore. particularly when the prosecution presented its evidence. Jurisdiction must be lawfully acquired over the person of the defendant or over the property subject of the proceedings. 4. 635. G. What are the requisites of “judicial due process”? As held in BANCO ESPANOL VS. 1986). the evidence must be substantial. there is no violation of his right to due process or right to counsel. 3.R. 4. Procedural due process---one which hears before it condemns. 921. CA. (CONSULTA VS. However. liberty or property. Judgment must be rendered only after lawful hearing. they shall have the right to adduce evidence in their own behalf. 2009) 10. The defendant must be given the opportunity to be heard. they shall be informed of the evidence against them. b. the tribunal or body must act on its own independent consideration of the law or facts. What are the requisites of procedural due process in disciplinary actions against students? As held in GUZMAN VS. February 12. 142 SCRA 706. 69 Phil. 3. the evidence must be duly considered by the investigating committee or official designated by the school authorities to hear and decide the case. it is to determine whether it has a valid governmental objective like for the interest of the public as against mere particular class. 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). November 10. 37 Phil. 179642. he entitled to a new trial. The requisites are: 1. b. 2. they shall have the right to answer the charges against them. the board or body shall in all controversial questions. PEOPLE. but was represented by a lawyer when he presented his evidence. If an accused was represented by a non-lawyer during the trial of his criminal case. the requisites are: 1. g. BAR OPERATIONS 2011 Page 33 .GREEN NOTES IN POLITICAL LAW Prepared by: ATTY. 2. render its decision in such a manner that the parties to the proceedings can know the various issues involved. the decision must have something to support itself. 9. NU. 5. substantive due process---requires the intrinsic validity of the law in interfering with the rights of the person to life. even if he was not represented by a nonlawyer at the start of the criminal trial. There must be an impartial court or tribunal clothed with judicial power to hear and decide the matter before it. f. the students must be informed in writing of the nature and cause of any accusation against them. GACAYAN a. d. 7. the requisites are: a. PALANCA. the right to a hearing which includes the right to present evidence. 8. CIR. or the procedure as pointed out by Daniel Webster. No. What are the requisites of due process before administrative bodies? As held in TIBAY VS. with the assistance of counsel. c. LARRY D. e. the decision must be based on the evidence presented during the hearing. (DELGADO VS. What he is entitled to is the right to be heard. What are the requisites for a valid classification? As held in People vs. 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. Manila. It must be germane tot he purposes of the law. No. What are the requisites of due process before an employee may be dismissed from his work? The requisites of Due Process before the NLRC are: 1. 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. G. December 19. 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. (ATTY. JUDGE WILFREDO REYES. (LUMIQUED VS. ROMEO ERECE VS. Not only. G. and 2. Hearing 12. 14. ET AL. 68 Phil. 282 SCRA 125) 12-a. Cayat. April 22. 2007) 13. In HIMAGAN VS.R. the requisites are: a. GACAYAN 11. which provides that a respondent in an administrative case should be assisted by counsel in order that the proceedings therein is considered valid. and It must apply equally to all members of the same class. 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. whether the Civil Service Act or the Administrative Code of 1987. c. 12.GREEN NOTES IN POLITICAL LAW Prepared by: ATTY. There must be real and substantial distinctions. RTC 36. Due process is served if was given the chance to present his evidence. It must not be limited to existing conditions only. d. No. (DE LA SALLE UNIVERSITY VS. PEOPLE. 166809. LYN MACALINGAY. EXENEA. No. that. Is due process satisfied in administrative proceedings if the respondent is not assisted by counsel? There is no law. LARRY D. 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. are the latter entitled to cross-examine the complainant and his witnesses? A. 127980. Notice.. How about in investigations involving disciplinary actions against students. b. 2008) 12-b. 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.R. BAR OPERATIONS 2011 Page 34 . 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. 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. notwithstanding. week-ends or holidays. the continued grant of COLA to them is intended to help them offset the effects of living in higher cost areas. (LEVISTE VS. February 22. GACAYAN 14-a. any police or law enforcement personnel. Art. August 3. Sec. Since their basic pay does not vary on location. a Circular issued by the Supreme Court requires that no warrant or warrant of arrest shall be implemented during the night. The executive determination of probable cause by the Prosecutor where he determines whether to file a criminal case in court or not. (GUTIERREZ VS. COMELEC. LARRY D. 15-a. 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 AntiTerrorism Council and such detention may be extended upon written approval of the Commission of Human Rights in case of actual or imminent terrorist attack. Finally. witnesses are required. What are the two (2) kinds of probable cause? The two (2) kinds of probable cause are: a. March 18. 2010) 15. 18. 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. (QUINTO VS. 9372. 2007 and effective on July 15. except in exceptional circumstances. JUDGE ALAMEDA. There is real and substantial distinction. 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. Approved on March 6. Republic Act No. having been duly authorized in writing by the Anti-Terrorism BAR OPERATIONS 2011 Page 35 . 2010) 14-b. Period of detention without judicial warrant of arrest. who. DEPARTMENT OF BUDGET AND MANAGEMENT. and b. Policemen and soldiers are in charge of the defense of the country and could be transferred to virtually anywhere in the country.. (Section 2. there is real and substantial distinction. III) In addition. and particularly describing the place to be searched and the persons or things to be seized.The provisions of Article 125 of the Revised Penal Code. Judicial determination of probable cause to be done by the judge for the purpose of issuing a warrant of arrest against the accused. Most elected officials have a fixed term under the Constitution and said term could not be shortened by means of a law. 2010) NOTE: Under the Human Security Act/Anti-Terrorism Law..GREEN NOTES IN POLITICAL LAW Prepared by: ATTY. 16.In the vent of an actual or imminent terrorist attack. however. OR HAD BAR OPERATIONS 2011 Page 36 . Period of Detention in the event of an actual or imminent terrorist attack. WITHOUT INCURRING ANY CRIMINAL LIABILITY FOR DELAY IN THE DELIVERY OF DETAINED PERSONS TO THE PROPER JUDICIAL AUTHORITIES. provincial or regional official of a Human Rights Commission. Provided. before detaining the person suspected of the crime of terrorism. If the arrest is made during Saturdays. LARRY D. That where the arrest is made during Saturdays. 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. As held in PEOPLE VS. among other things. The judge shall then submit a written report of what he/she had observed when the subject was brought before him to the proper court that has jurisdiction over the case of the person thus arrested. the police or law enforcement personnel shall notify in writing the judge of the court nearest the place of apprehension or arrest. 291 SCRA 400. the Sandiganbayan or a justice of the Court of Appeals nearest the place of arrest. 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. or law enforcement personnel: Provided. 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 police or law enforcement personnel concerned shall.GREEN NOTES IN POLITICAL LAW Prepared by: ATTY. GACAYAN 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. city. WHAT IS MATERIAL IN DETERMINING THE VALIDITY OF A SEARCH IS THE PLACE STATED IN THE WARRANT ITSELF. Sundays. the written notice shall be served at the residence of the judge nearest the place where the accused was arrested. suspects may not be detained for more than three days without the written approval of a municipal. to inquire of them the reasons why they have arrested the person and determine by questioning and personal observation whether or not the subject has been subjected to any physical. to ascertain the identity of the police or law enforcement personnel and the person or persons they have arrested and presented before him or her. provided. Sundays or holidays. or after office hours. moral or psychological torture by whom and why. The penalty of 10 years and 1 day to 12 years imprisonment shall be imposed upon the police or law enforcement personnel who fails to notify any judge as provided in the preceding paragraph. It shall be the duty of the judge. Section 19. holidays or after office hours. CA. The judge shall forthwith submit his report within 3 calendar days from the time the suspect was brought to his/her residence or office. present him or her before any judge at the latter’s residence or office nearest the place where the arrest took place at any time of the day or night.. and taken into custody by the said police. Immediately after taking custody of a person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism. That within three days after the detention the suspects whose connection with the terror attack or threat is not established. That the arrest of those suspected of the crime of terrorism or conspiracy to commit terrorism must result from the surveillance under Section 7 and examination of bank deposits under Section 27 pf this Act. shall be released immediately. detained. are the things seized admissible in evidence? No. 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. or judge of the municipal. regional trial court. NOT WHAT THE APPLICANTS HAD IN THEIR THOUGHTS. He could not have determined probable cause based from the said documents. falsification. tax evasion and insurance fraud? No. 3. 1990 that when the questions asked to the applicant for a search warrant was pre-typed. 17. issue a warrant of arrest. the same is not valid since there could have been no searching questions. (TAMBASEN VS. July 14. 54 SCRA 312) 20. PEOPLE VS. searches of moving vehicle.HON. 19. Ruiz. G. the warrant shall be void. 1995. 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. he shall: (1) personally evaluate the reports and the supporting documents submitted by the fiscal regarding the existence of probable cause and. search incidental to a lawful arrest. 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. PEOPLE. customs searches. 288 SCRA 626) 18.GREEN NOTES IN POLITICAL LAW Prepared by: ATTY. NO. As held in Bache vs. decided under the 1987 Constitution.What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause. May a judge validly issue a warrant of arrest based from the Information and the Resolution of the Prosecutor finding probable cause against the accused? No. the examination of the complainant ant the witnesses he may produce must be done personally by the judge. (VICENTE LIM.SR. 5. and stop and frisk measures. What is a “scatter-shot warrant”? It is a search warrant issued for more than one (1) specific offense like a search warrant issued for more than one specific offense like one for estafa. FELIX . 2. Herrera. Following established doctrine and procedures. 216 SCRA 101) 21. 99054-57). seizure of evidence in plain view. Makasiar. such would be a “general warrant” and violates the rule that a warrant shall be issued for one (1) specific offense. LARRY D. N. 37 SCRA 823. BAR OPERATIONS 2011 Page 37 . the SC held in PENDON VS. November 16. ARUTA. CA. 6. CA. May a search warrant be issued for the crimes of search warrant for estafa. GACAYAN REPRESENTED IN THE PROOFS THEY SUBMITTED TO THE COURT ISSUING THE WARRANT. As held in the case of Soliven vs. (Asian Surety vs. There will be no basis for the issuance since the Prosecutor is neither the complainant nor the witness to the case. consented searches. AND MAYOR SUSANA LIM VS.R. (2) If on the basis thereof he finds no probable cause. 4. 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. Otherwise. theft and qualified theft”. on the basis thereof. (PEOPLE VS. robbery. 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 such. 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. and all other supporting documents behind the prosecutor's certification which are material in assisting the judge to make his determination.A peace officer or private person may. vs. 126 SCRA 463).. 167 SCRA 393 23. 1992. Is the judge bound by the findings of existence of “probable cause” by the Prosecutor as indicated in his Certification in the information so that the issuance of a warrant of arrest is only ministerial? If not satisfied of the existence of probable cause. 210 SCRA 174. Arrest without warrant. Villanueva. 24. Placer vs. In connection with the issuance of a SEARCH WARRANT. 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. “OPERATION KAPKAP” or warrantless search without probable cause is unconstitutional. Such search is valid only if covered by Section 5. As such. GACAYAN The case of People vs. MENGOTE. The judge does not have to follow what the prosecutor's present to him. when lawful. 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. the latter ascertains whether the offender should be held for trial or be released.R. without warrant. Article 113 of the Rules of Court which provides: Sec. (3) Preliminary inquiry should be distinguished from the preliminary investigation proper. the prosecutor's certification of probable cause is ineffectual. (2) The preliminary inquiry made by the prosecutor does not bind the judge. MAKASIAR. with searching questions. In connection with the issuance of a warrant of arrest. LARRY D. there is no need to examine the complainant and his witnesses face to face. As to the requirement that the judge must “personally” determine probable cause.GREEN NOTES IN POLITICAL LAW Prepared by: ATTY. In fact. It is the report. face to face. Inting reiterates the following doctrines: (1) The determination of probable cause is a function of the judge. By itself. he must personally examine the complainant and the witnesses. G. It merely assist him to make the determination of probable cause. 110 SCRA 465. Honorable Enrique B. the transcripts of stenographic notes. Probable cause to justify the issuance of a warrant of arrest is a judicial function vested only in the judge. 87059. however. arrest a person: BAR OPERATIONS 2011 Page 38 . 22. June. While the former seeks to determine probable cause for the issuance of warrant of arrest. must he examine the complainant and his witnesses face to face in order to comply with the said constitutional provision? It depends. the affidavits. 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. 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. It is not for the Provincial Fiscal or Prosecutor nor for the Election Supervisor to ascertain. (P. SOLIVEN VS. No. Only the judge alone makes this detemination. 5. Villanueva. there was no probable cause that. or has escaped while being transferred from one confinement to another. however. his arrest without a warrant cannot be justified. The policemen saw several suspicious looking men at dawn who ran when they went near them. May the Iloilo Police arrests without warrant or search the person disembarking from a ship without warrant based solely on an information relayed to them by an informant that the suspect’s bag contains marijuana? No. (PEOPLE VS. 482 SCRA 660) BAR OPERATIONS 2011 Page 39 . 355 SCRA 246) 28. 1991. As held in PEOPLE vs. as the prosecution incorrectly suggested. CA. ANDRE MARTI. or is attempting to commit an offense. dispensed with the constitutional requirement of a warrant. SILAHIS INTERNATIONAL HOTEL. 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. PEOPLE. the SC held that mere suspicions not sufficient to validate warrantless arrest. Is a warrantless search and seizure by a private individual valid? Yes since the constitutional provision is not applicable to him. that in MALACAT VS. GALVEZ. LARRY D. Compare this case to MANALILI VS. the prosecution admitted that there was no warrant of arrest issued against accused-appellant when the latter was taken into custody. (b) When an offense has in fact just been committed. 81561. January 18. 355 SCRA 246. (PEOPLE OF THE PHILIPPINES VS. OTHERWISE. NO. 1997. In short. what kind of knowledge is required on the part of the arresting officer? In PEOPLE VS. in his presence. is actually committing. The search was declared valid by the Supreme Court. an unlicensed firearm was confiscated.GREEN NOTES IN POLITICAL LAW Prepared by: ATTY. 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. AMMINUIDIN. This was effected while he was coming down the vessel. As the policemen ran after them. the accused-appellant waived his right to raise the issue of illegality of his arrest. ROGELIO SOLUTA. to all appearances no less innocent than the other disembarking passengers. 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. 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. 163 SCRA 402 a warrantless arrest of the accused was unconstitutional. Indeed. VS. G. In arrests without warrant based on the fact that a crime has just been committed. October 9. GALVEZ. 283 SCRA 159. Note. the Supreme Court held that t he policeman arrested the accused-appellant on the basis solely of what Reynaldo Castro had told him and not because he saw the accused-appellant commit the crime charged against him. the person to be arrested has committed.. 25. He had not committed nor was actually committing or attempting to commit an offense in the presence of the arresting officers. THE OBJECTION IS DEEMED WAIVED. He was not even acting suspiciously. GACAYAN (a) When. 26.R. 27. 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. ET AL. INC. PANO. Define probable cause in connection with the issuance of a search warrant. In fact. 139 SCRA 541. if accused was arrested while inside a jeepney. of a drug paraphernalia and shabu. (PEOPLE VS. As such. LARRY D. What is the “plain view doctrine” in connection with warrantless search and seizure? As held in PEOPLE VS. NBI. he may be lawfully searched for dangerous weapons or anything which may be used as proof of the commission of an offense. If the accused was validly arrested without warrant inside a night club for illegal possession of firearm. 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) . As such. not due to search incidental to a valid arrest. there is no valid search incidental to a valid arrest if she will be brought to her residence and thereafter search the said place. Rule 126. 32. This probable cause must be shown to be within the BAR OPERATIONS 2011 Page 40 . This is a valid search incidental to a lawful arrest. the consent must come from the person directly affected by said warrantless search. VALDEZ. 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. 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. which may justify a search without warrant. 288 SCRA 588. Commissioner. As such. 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. it being one of the recognized exceptions under the Rules. CANNOT BE SAID TO HAVE BEEN MADE DURING AN ILLEGAL SEARCH because of his consent. PEOPLE VS. (Quintero vs. 341 SCRA 25. 212 SCRA 547 abandoned the ruling in Lopez vs. Damaso. if the accused was arrested in the street during a buy-bust operation. Or as held in ESPANO VS. June 23. What are the requisites of a valid search incidental to a valid arrest? As held in NOLASCO VS. No warrant is necessary in such a situation. without a search warrant in accordance with Section 12. 354 SCRA 338) 31. As a consequence of the accused’s valid warrantless arrest inside the nightclub. DAMASO.GREEN NOTES IN POLITICAL LAW Prepared by: ATTY. 1988). The "probable cause" for a valid search warrant. the “plain view” doctrine. BUT INADVERTENTLY COMES ACROSS AN INCRIMINATING OBJECT. supra. which was seen on top of a table after the opening of the apartment’s door without a warrant nor consent of the occupant therein. GACAYAN 29. and that the objects sought in connection with the offense are in the place sought to be searched". can be used as evidence against the accused. the items do not fall under the exclusionary rule and the unlicensed firearms. the search of his house nearby is not a valid search incidental to a valid arrest. CA. APPLIES ONLY WHERE THE POLICE OFFICER IS NOT SEARCHING FOR EVIDENCE AGAINS THE ACCUSED. 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. drug paraphernalia and the shabu. “plain view doctrine could not be used to justify the seizure of an unlicensed firearm in People vs. In order that there is a valid consent to a warrantless search. 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. 30. 33. GO. VS." (DR. Ponsica vs. SY JUCO. NOT BODILY SEARCH. (P. December 14. ALVAREZ VS. As such. 1989. admissible in evidence? No. would such fact sufficient to convince the court of the existence of “probable cause”? No. not of the facts merely reported by a person whom one considers to be reliable. 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. 83988. the Supreme Court clarified that the military officers manning the checkpoints may conduct VISUAL SEARCH ONLY. In the seizure of alleged pirated tapes.) In fact. GEN RENATO DE VILLA. July 31. If the applicant for a search warrant testifies that his knowledge of the facts and circumstances was derived from a “highly reliable informant”. Manila & People of the Philippines. CFI. then he may not issue said warrant. Ignalaga. NEMESIO PRUDENTE VS. GR No.1987) 39. DAYRIT. 37. 34. GR No. 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. If the offense committed is a serious one like that obtaining in this case for murder. However. knowledge based on hearsay information does not justify the existence of probable cause. 210 SCRA 97. what must the applicant submit to the court in order that the search warrant to be issued shall be valid? BAR OPERATIONS 2011 Page 41 . must he issue a warrant of arrest as a matter of course? It depends: 1. In VEROY VS. As such. they instead seized an unlicensed firearm. mere conclusions of law. the Judge must issue a warrant of arrest after determining the existence of probable cause) 38. SAMULDE VS. 33. 82870. EXECUTIVE JUDGE ABELARDO M. September 29. If the judge finds that there's probable cause. the firearm is not admissible as evidence. Note: This case involves a minor offense) 2. The checkpoints are legal as where the survival of the organized government is on the balance.GREEN NOTES IN POLITICAL LAW Prepared by: ATTY. 28 PHIL. US VS. Is an unlicensed firearm seized in the house of the accused without warrant by the military authorities. RTC 33. when the statements in the affidavits of witnesses are mere generalities. LAYAGUE. 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. 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. after they were given consent by the said owner of the house for them to search for rebel soldiers. THE HON. supra. 566). GACAYAN personal knowledge of the complainant or the witnesses he may produce and not based on mere hearsay. LARRY D. 667. if the court believes that the presence of the accused could be had even without a warrant of arrest. or where the lives and safety of the people are in grave peril. (Prudente vs. GOZO VS. SEPTEMBER 26. 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. 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. TAC-AN. 1989) 35. the warrant issued by virtue thereof is not valid. 300 SCRA 265. 36. 64 PHIL. there was no consent to search for firearms and as a consequence. and not positive statements of particular acts. Dayrit. ADDISON. 64 PHIL. SALVANI. to BAR OPERATIONS 2011 Page 42 . Provided. and upon examination under oath and affirmation of the applicant and the witnesses who may produce to establish:    That there is probable cause to believe based on personal knowledge of facts and circumstances that the said crime of terrorism or conspiracy to commit terrorism has been committed.. association. listen to. Formal Application for Judicial Authorization. it was held that the master copy of the allegedly pirated tape should be presented before the judge in order to convince him of the existence of probable cause) 40. 261 SCRA 144. conversations. any communication. discussion. or spoken or written words of any person suspected of the crime of terrorism or the crime of conspiracy to commit terrorism. or to the solution or prevention of any such crimes. Classification and Contents of the Order of the Court. That surveillance. listen. or group of persons or of any person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism. message. a police or law enforcement official and the members of his team may. CA. The provisions of RA 4200 (Anti-Wiretapping Law) to the contrary notwithstanding. conversation. or spoken or written words between members of a judicially declared and outlawed terrorist organization.GREEN NOTES IN POLITICAL LAW Prepared by: ATTY. 41. The written order granted by the authorizing division of the Court of Appeals as well as its order. message. or with the use of any other suitable ways or means for that purpose. any communication. journalists and their sources and confidential business correspondence shall not be authorized. shall only be granted by the authorizing division of the Court of Appeals UPON AN EX-PARTE written application of a police or law enforcement official who has been duly authorized in writing by the Anti-Terrorism Council created in Section 53 of this Act to file such ex-parte application. if any. may police authorities the listen to. 9. discussions. with the use of any mode. or is about to be committed. with the use of any mode. upon a written order of the Court of Appeals. tap. form or kind or type of electronic or other surveillance equipment or intercepting and tracking devices. 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. 164 SCRA 655 and COLUMBIA PICTURES VS. will be obtained. 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. Surveillance of suspects and interception and recording of communications. 2007 and effective on July 15. Sec. GACAYAN In Century Fox vs. messages. form or kind or type of electronic or other surveillance equipment or intercepting and tracking devices. conversation. and That there is no other effective means readily available for acquiring such evidence. Under the Human Security Act/Anti-Terrorism Law. intercept and record. intercept and record. Republic Act No. 9372.The written order of the authorizing division of the Court of Appeals to track down. intercept. doctors and patients. Approved on March 6. discussion. and record communications. or with the use of any other suitable ways or means for that purpose. That there is probable cause to believe based on personal knowledge of facts and circumstances that evidence which is essential to the conviction of any charged or suspected person for. Section 8. CA. LARRY D. or is being committed. 2007. interception and recording of communications between lawyers and clients. listened to. of the charged of suspected persons whose communications. messages. conversations. listened to. and record the communications. 42. accounts and records. 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. Judicial authorization required to examine bank deposits. discussions. and recorded and their locations if the person suspected of the crime of terrorism or conspiracy to commit terrorism is not fully known. the original application of the applicant. The CA may extend or renew the said authorization for another non-extendible period. which shall not exceed 30 days from the date of receipt of the written order of the authorizing division of the court of Appeals by the applicant police or law enforcement official. in case of radio. Approved on March 6. and The length of time which the authorization shall be used or carried out. including his application to extend or renew. which shall not exceed 30 days from the expiration of the original period…The ex-parte application for renewal has been duly authorized by the Anti-terrorism Council in writing. The identity (name and address. tap. the legality of the interference before the Court of Appeals which issued said written order. Effective Period of Judicial Authorization. conversations. if known. discussions. The written order of the authorizing division of the court of Appeals shall specify the following:     The identity. It provides: Section 27. LARRY D. conversations. conversations. 2007 and effective on July 15. papers. and the police or law enforcement organization) of the members of his team judicially authorized to track down. intercepted. Section. if any. bugged or recorded by law enforcement authorities has the right to be informed of the acts done by the law enforcement authorities in the premises or to challenge. 9372. such person shall be subject to continuous surveillance provided there is reasonable ground to do so. discussions. 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. GACAYAN extend or renew the same.GREEN NOTES IN POLITICAL LAW Prepared by: ATTY. if he or she intends to do so. messages. such as name and address. intercept. messages. Republic Act No. intercepted or recorded and. electronic. tapped. or sought to be prevented. BAR OPERATIONS 2011 Page 43 . 2007. or spoken or written words. The offense or offenses committed. spoken or written words and effects have been monitored. or being committed. That the person being surveilled or whose communications. 10. the electronic transmission systems or the telephone numbers to be tracked down. or telephone (whether wireless or otherwise) communications. or spoken or written words. Under the Human Security Act/Anti-Terrorism Law. listen to. listened to. letters. discussions. Any authorization granted by the authorizing division of the court of Appeals…shall only be effective for the length of time specified in the written order of the authorizing division of the Court of Appeals. Of a judicially declared and outlawed terrorist organization or group of persons. and the written authorizations of the AntiTerrorism Council shall be deemed and are hereby declared as classified information: Provided. or spoken or written words are to be tracked down. tapped. messages. and 2. the evidence obtained by the wife who forcibly opened the drawers at the clinic of her doctor-husband and took diaries. may authorize in writing any police or law enforcement officer and the members of his team duly authorized in writing by the anti-terrorism council to: 1. Of a judicially declared and outlawed terrorist organization or group of persons. Is the freedom of speech and expression affected by the Human Security Act? Yes. and records from a bank or financial institution. 43. The bank or financial institution shall not refuse to allow such examination or to provide the desired information. 1996. placements. association or group of persons. This is so because the intimacies of husband and wife does not justify the breaking of cabinets to determine marital infidelity. Application to examine deposits. under Section 26 of the law. Of a judicially declared and outlawed terrorist organization or group of persons. assets. GACAYAN  Of a member of such judicially declared and outlawed organization. accounts and records. May a wife validly seize the diaries. 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. 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. February 10. gather or cause the gathering of any relevant information about such deposits. when so ordered by and served with the written order of the Court of Appeals. computers. and records in a bank or financial institution.” 44. 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.GREEN NOTES IN POLITICAL LAW Prepared by: ATTY. assets. What is the rule on criticisms on the acts of public officers? BAR OPERATIONS 2011 Page 44 . assets and records:    Of A person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism. trust accounts. or other means of communications with people outside their residence. checks and greeting cards of his alleged paramours is inadmissible as evidence. 28. The written order of the CA authorizing the examination of bank deposits. Sec. the deposits. trust accounts. placements. 43. LARRY D. placements. Of a member of such judicially declared and outlawed organization. association or group of persons. trust accounts. trust accounts. placements. examine or cause the examination of. Of a member of such judicially declared and outlawed organization. association or group of persons. CA. assets and records:    A person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism. [b] must be done in good faith. The interest of the government and the society demands full discussion of public affairs. 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. 37 Phil.GREEN NOTES IN POLITICAL LAW Prepared by: ATTY. 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. 2d 419 are: BAR OPERATIONS 2011 Page 45 .76 SCRA 448. 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. The public benefit from publicity is so great and the chance of injury to private character so small. that they more than counterbalance the inconvenience of private persons whose conduct may be involved. ANNOUNCER OR COMMENTATOR’S CHOICE OF THE FORUM WHERE HE MAY EXPRESS HIS VIEW. “ Clearly.S. (PABLITO V. INCLUDING THE FORUM. This was recognized as early as the case of US VS. (US vs. 1990) 47. GACAYAN A public official should not be too onion-skinned with reference to comments upon his official acts. and occasional injury to the reputations of individuals must yield to the public welfare. What are the tests of obscenity? The three (3) tests as held in Miller vs. 338 [1909] and the case of NEW YORK TIMES VS. Ed.. NO. California. Gutierrez. and [c] no comments nor remarks shall be made by the writer} 48. 444 SCRA 28 [November 25. January 29. although at times such injury may be great. LARRY D. that such discussion must be privileged. 37 L. G. the same must be [a] a true and fair report of the actual proceedings. 731) 45. 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. 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. 46. such would be an undue interference on the freedom of expression. COURT OF APPEALS & RAMON LABO. 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. and the advantages derived so great. 14 Phil. 90878. COMELEC. 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 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. Plebiscite issues are matters of public concern and importance. it was held that in order that any news item relating to a judicial proceeding will not be actionable. The importance to the State and to society of such discussions is so vast. Bustos. 376 U.R. SANIDAD VS. IT IS STILL A RESTRICTION ON THE COLUMNIST. May the COMELEC validly prohibit columnists. SULLIVAN. JR. 2004 . SEDANO. moral and physical fitness of candidates for public office. Thereafter. LARRY D. 444 SCRA 51 held that “these mass actions were to all intents and purposes a strike. 2006) 52. If he is of the view that there is such an imminent and grave danger of a substantive evil. G. he will become the complainant. 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. As such. otherwise. artistic. Gen. GACAYAN 1. ARTURO M. 169848. No.” It is undisputed fact that there was a work stoppage and that petitioners’ purpose was to realize their demands by withholding their services. vs. PEDRO BULAONG. The right of government employees to organize IS LIMITED TO THE FORMATIONS OF UNIONS OR ASSOCIATIONS ONLY. 178 SCRA 362). work which it was the teachers’ duty to perform. whether favorable or adverse. WILL BE DEEMED CONTROLLING. 2. in his capacity as Executive Secretary. prosecutor and judge at the same time. only the consent of the owner or the one entitled to its legal possession is required. they constituted a concerted and unauthorized stoppage of. 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. CA. undertaken for essentially economic reasons. AND NOT ITS APPEARANCE. 276 SCRA 619) 51. CA. VIDAL QUEROL. WITHOUT INCLUDING THE RIGHT TO STRIKE. Whether the average person applying to contemporary community standards would find the work appeals to prurient interest. A City Mayor may not order the warrantless seizure of magazines which he believes to be obscene. (BAYAN. LOMIBAO. BAR OPERATIONS 2011 Page 46 . Whether the work as a whole lacks serious literary . (Pita vs. Thus if so minded. Chief of the Philippine National Police. 3. KARAPATAN. Is BP 880 unconstitutional for being vague (Void for Vagueness Doctrine) and overbroad (Overbreadth Doctrine)? No. the public place where and the time when it will take place. and GABRIELA vs. SINCE THE SUBSTANCE OF THE SITUATION. It is an indispensable condition to such refusal or modification that the clear and present danger test be the standard for the decision reached. 50. EDUARDO ERMITA. Manila City Mayor LITO ATIENZA. It is very clear that it deals only on public assemblies that deals with rallies. COURT OF APPEALS. political or scientific value. If it were a private place. May public school teachers validly file mass leaves. The fact that the conventional term “strike” was not used by the striking employees to describe their common course of action is inconsequential. his decision.R. the applicants must be heard on the matter. and Western Police District Chief Gen. May. 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. mass actions and similar acts and not all kinds of public assemblies. NCRPO Chief Maj. KILUSANG MAGBUBUKID NG PILIPINAS (KMP). after their demand to the government was not met” In GESITE et al. must be transmitted to them at the earliest opportunity. Whether the work depicts or describes a patently offensive sexual conduct. (Bangalisan vs.GREEN NOTES IN POLITICAL LAW Prepared by: ATTY. or absence from. 49. Gen. instead of going on strike. 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. they can have recourse to the proper judicial authority. it is not vague. Chief of the Philippine National Police. the policy of dispersing rallyists through water cannons. May. 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. GACAYAN Neither is the law overbroad. B. VIDAL QUEROL. LAGUARDIA. BAGNOS MAXIMO.GREEN NOTES IN POLITICAL LAW Prepared by: ATTY. the so-called calibrated preemptive response policy. not the government. 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. FELICISIMO G. The act of the City of Cauayan. In fact. RACMA FERNANDEZ-GARCIA and THE CITY OF CAUAYAN. 2006) 54. (BAYAN. PEDRO BULAONG. 2009) [Dissenting Opinion: The suspension of the program is illegal. May the City of Cauayan. LOMIBAO. Nos. ( NEWSOUNDS BROADCASTING NETWORK INC. LARRY D. Gen.P. it is a valid “prior restraint” measure on the part of the MTRCB (SORIANO VS. On the other hand. EDUARDO ERMITA. place and manner of assemblies. No. ARTURO M. 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. 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. DY. Isabela. Yes as “subsequent punishment”. Per Justice Antonio Carpio] 54-a. Manila City Mayor LITO ATIENZA. MEER. KILUSANG MAGBUBUKID NG PILIPINAS (KMP). especially freedom of expression and freedom of assembly. and CONSOLIDATED BROADCASTING SYSTEM. vs. Distinguish “clear and present danger”. 169848. 53. INC. 880 cannot be condemned as unconstitutional. G. then such words are punishable) BAR OPERATIONS 2011 Page 47 . G. HON. in his capacity as Executive Secretary. “dangerous tendency rule” and “balancing of interest test”. Isabela constitutes prior restraint. No. “maximum tolerance” is for the benefit of rallyists.R. and Western Police District Chief Gen. April 29. it merely regulates the use of public places as to the time. May the MTRCB suspend for three (3) months the airing of the program Ang Dating Daan of Brother Eliseo Soriano as a result of vulgar and uncouth language he uttered against the host of the program Ang Tamang Daan of the Iglesia Ni Kristo? A. 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. 2009) 54-b. For this reason. has no place in our legal firmament and must be struck down as a darkness that shrouds freedom. Far from being insidious. 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. KARAPATAN. It merely confuses our people and is used by some police agents to justify abuses.R. It constitutes “prior restraint”. and GABRIELA vs. CEASAR G. April 2. NCRPO Chief Maj. It shall pay P10M in damages for the losses suffered by Bombo Radyo as a result of the illegal closure. it does not curtail or unduly restrict freedoms. 170270 &179411. Gen. However. Example: “Go forth and multiply---cannot marry several times just to comply. his freedom to do so becomes subject to the authority of the State. SOLEDAD ESCRITOR. Freedom to act. 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. 58. and b. Escritor likewise claimed that she had executed a “DECLARATION OF PLEDGING FAITHFULNESS” in accordance with her religion which allows members of the Jehovah’s witnesses who have been abandoned by their spouses to enter into marital relations.GREEN NOTES IN POLITICAL LAW Prepared by: ATTY. (AYER PRODUCTION VS. 160 SCRA 861) 56. Freedom to believe. and the regulation results in an indirect. the latter’s right prevail because Enrile’s part in the movie deals solely on his acts as a public officer then. ET AL. IN the first. The Declaration thus makes the resulting union moral and binding within the congregation all over the world except in countries where divorce is allowed. He may not be punished even if he cannot prove what he believes. 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. JUDGE CAPULONG. if the individual externalizes what he believes. May Senator Juan Ponce Enrile prevent the movie producer of the EDSA I Revolution movie from including his participation during the uprising since it violates his right to privacy? No. This is so because religious freedom can be exercised only with due regard to the rights of others.. May a Jehovah’s Witnesses Member who is the Court Interpreter of RTC Branch 253. the state shall balance their respective interests. be held liable for “grossly immoral conduct” for living with a married man while her very own marriage was still subsisting? No. To exclude him as integral part of the revolution would be a distortion of history. 408 SCRA 1.) 55. (Lagunzad vs. Las Pinas City. What are the two (2) aspects of the RIGHT TO RELIGIOUS PROFESSION AND WORSHIP ? Distinguish each. the duty of the courts is to determine which of the 2 conflicting interests demand greater protection under the circumstances presented. partial abridgment of speech. That the conjugal arrangement was in conformity with their religious beliefs. BAR OPERATIONS 2011 Page 48 . As held in ESTRADA VS. conditional. As between the right to privacy invoked by the mother and the freedom of expression invoked by the movie producer. 57. as between Enrile’s right to privacy and the freedom of expression on the part of the movie producer. the right to privacy shall prevail. such freedom is absolute. the Supreme Court held that she is not liable for grossly immoral conduct because:    She is a member of the Jehovah’s Witnesses and the Watch Tower Society. In the second. Gonzales). GACAYAN The balancing-of-interest test (When a particular conduct is regulated in the interest of the public order. He may indulge in his own theories about life and death. LARRY D. That the conjugal arrangement with Quilapio has the approval of her congregation. 492 SCRA 1 (Resolution of the Motion for Reconsideration). worship any god he chooses. a. or none at all. Since the movie producer is primarily after profits only. 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. JUAN PONCE ENRILE. VS. RAUL MANGLAPUS. September 15. The doctrine laid down in Gerona vs. as may be provided by law.R. without the authorization of the court. 64. 1989 and the Resolution of the Motion for Reconsideration dated October 27. BUT IT IS OUR WELL-CONSIDERED VIEW THAT THE RIGHT TO RETURN MAY BE CONSIDERED AS A GENERALLY ACCEPTED PRINCIPLE OF INTERNATIONAL LAW. 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. ET AL. public safety. recite the Patriotic Pledge. 61. Restricted from traveling. May children of Jehovah’s Witnesses in public schools be forced to sing the National Anthem. THE DIVISION SUPERINTENDENT OF SCHOOLS OF CEBU. 63. the suspect’s right to travel shall be limited to the municipality or city where he resides or where the case is pending. 60. WHICH TREATS ONLY OF THE LIBERTY OF ABODE AND THE RIGHT TO TRAVEL. May a person out on bail be validly allowed to travel abroad? Yes. (FERDINAND MARCOS. 142 SCRA 149): BAR OPERATIONS 2011 Page 49 . ET AL. Is the right to travel affected by the Human Security Act? Yes. and/or Upon application of the prosecutor. UNDER OUR CONSTITUTION. Neither shall the right to travel be impaired except in the interest of national security. Travel outside of said municipality or city. CA. 1989). THE RIGHT TO RETURN TO ONE'S COUNTRY IS NOT AMONG THE RIGHTS SPECIFICALLY GUARANTEED BY THE BILL OF RIGHTS. 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. LARRY D. 62. HON.GREEN NOTES IN POLITICAL LAW Prepared by: ATTY. 88211. (ROEL EBRALINAG. What is provided by the Philippine Constitution is the right to travel and not the right to return. subject to the following requisites ( Manotoc vs. NO. or the dismissal of the case filed against him. and Salute the Flag. The power involved is the President's RESIDUAL POWER to protect the general welfare of the people. 1993). GACAYAN 59. or public health. or earlier upon the discretion of the court or upon motion of the prosecutor. G. and Salute the Flag under pain of being expelled for noncompliance? No since such is in violation of their religious beliefs. These restrictions shall be terminated upon acquittal of the accused. These two (2) rights are different under the Universal Declaration of Human Rights and International Covenant on Civil and Political Rights. Secretary of Education was reversed. recite the Patriotic Pledge.. 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. March 1. ET AL VS. 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. Religious freedom is superior to the statute requiring the pupils to sing the National Anthem. 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. in the interest of national security and public safety. IS PART OF THE LAW OF THE LAND. GACAYAN He must however [1] convince the courts of the urgency of his travel. It provides: PURSUANT TO SECTION 2. (SENATE OF THE PHILIPPINES. May the COMELEC be compelled to publish the names of the nominees of the different party-list groups for the May 14. represented by SENATE PRESIDENT FRANKLIN DRILON. RA 8974 shall be followed. 478 SCRA 474) 2. 2007) 67. Is the right to information on matters of public concern absolute? No.( Barangay Matictic vs. 354 SCRA 562. 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. EXEC. the rule is that in the case of BIGLANG-AWA VS. 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. This means that there must be a [a] Complaint for expropriation which is sufficient in form and in substance.R. BAR OPERATIONS 2011 Page 50 . What are the requisites before an expropriator may validly obtain a writ of possession to take over possession of the expropriated property? It depends: 1. No. [2] the duration thereof. JUDGE BACALLA. JUDGE GINGOYON. 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. April 20. EDUARDO ERMITA. Such would violate the right of the people to information on matters of public concern. In ordinary expropriation cases. ET AL. 2006 ) 68. 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. (BANTAY REPUBLIC VS. Elbinias. It is only through said investigations that the people will be informed of the workings of the different departments of the government. 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. ET AL.GREEN NOTES IN POLITICAL LAW Prepared by: ATTY. 2007 elections despite the prohibition on such publication as embodied by the Party-List Act? YES. 66. LARRY D. the COMELEC must publish the same despite the prohibition in the law. and [3] that his sureties are willing to undertake the responsibility of allowing him to travel. Such prohibition violates the right to information on matters of public concern on the part of the citizen. (REPUBLIC OF THE PHILIPPINES VS. SEC. MAY 4. like those covered by the “Build-Operate-Transfer”. 65. G. If the expropriation is for a “National government projects” or “national infrastructure projects”. May a Barangay validly exercise the power of eminent domain? Yes. the request must be done during office hours. VS. and the making of a deposit equivalent to the ASSESSED VALUE OF THE PROPERTY SUBJECT TO EXPROPRIATION. 148 SCRA 83) 69. RULE 67 OF THE 1997 RULES OF CIVIL PROCEDURE AND THE DOCTRINE LAID DOWN IN THE ROBERN DEVELOPMENT CASE. COMELEC... 16977. etc. subject to the approval by the President. the current value of like proerties. shall be complied with: 1. What are the rights of a person under custodial investigation under the “Mahinay Doctrine” or the “Expanded Miranda Doctrine”? The rights are: 1. 1992). the tax declarations thereon. 3. c. INC. vs. 71. shape. 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. COURT OF APPEALS AND REPUBLIC OF THE PHILIPPINES. information or communication must be in a language known to and understood by said person. the entrance must not be for just a momentary period. the entry must be under warrant of color or title. (BERKENKOTTER. d. The person arrested. their size. Santos. the property must be devoted for public use. and 6. (City of Manila vs. a private property which is already devoted to public use may not be expropriated for another public purpose. 4. LARRY D. 70. detained. 5. 444 SCRA 269. 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. 349). What are the requisites of “taking” in expropriation cases? The Requisites of taking are: a. CA. VS. the expropriator must enter the property. 2.1987) The factors to be considered in determining the just compensation/market value are: 1. 58 SCRA 336) 72. December 14. (Rep.GREEN NOTES IN POLITICAL LAW Prepared by: ATTY. May 21. Every other warnings. (Manotok vs. 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. 73. e. JUDGE LEGASPI. BAR OPERATIONS 2011 Page 51 . GACAYAN 3. Chinese Community. and the owner must be ousted from beneficial use of his land. cost of acquisition. May a private property already used as a private cemetery be expropriated for a public purpose? No. 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. the Supreme Court decision in the case of THE CITY OF ILOILO VS. location. If the expropriation is being done by a Local Government Unit. note that as held in the case of Republic vs. particular case of lands. the complaint for expropriation filed in court is sufficient in form and substance. 40 Phil. its actual or potential uses. if any. b. and 2. Castellvi. ILOILO CITY. Finally. RTC 22. whether inculpatory or exculpatory. GACAYAN 2. preferably of his own choice. letter or messenger---with his lawyer (either retained or appointed). 10. at any time. he must be warned that the waiver is void even if he insist on his waiver and chooses to speak. 74. The person arrested must be informed that. any member of his immediate family. one will be provided for him. knowingly and intelligently and ensure that he understood the same. or the interrogation has begun. He must be informed that he has the right to waive any of said rights provided it is made voluntarily. Rights of a person under custodial detention. 8. and that a lawyer may also be engaged by any person in his behalf. 7. regardless of whether he may have answered some questions or volunteered some information or statements. LARRY D. radio. or be visited by/confer with duly accredited national or international non-governmental organization. 4. 5. The person arrested must be informed that his initial waiver of his right to remain silent.GREEN NOTES IN POLITICAL LAW Prepared by: ATTY. of his or her right: BAR OPERATIONS 2011 Page 52 . 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. SHALL BE INADMISSIBLE IN EVIDENCE. He must be informed that any statement OR EVIDENCE. he has the right to communicate or confer by the most expedient means---telephone. 3. the police may not interrogate him if the same had not yet commenced. He must be informed that if he has no lawyer or cannot afford the services of a lawyer. In addition. IT SHALL BE THE RESPONSIBILITY OF THE OFFICER TO ENSURE THAT THIS IS ACCOMPLISHED. obtained in violation of any of the foregoing. 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. if the person arrested waives his right to a lawyer. priest or minister chosen by him or by any one from his immediate family or by his counsel. 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. otherwise. in whole or in part. 9. he shall forthwith be informed by the arresting police or law enforcement officers to whose custody the person concerned is brought. That whether or not the person arrested has a lawyer. . or any medical doctor. What are the rights of a person under “custodial detention” for one suspected or arrested as a terrorist under the Human Security Act? The rights are embodied under Section 21 thereof which states: Section 21.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. 11. or may be appointed by the court upon petition of the person arrested or one acting in his behalf. That the person arrested must be informed that he may indicate in any manner at any time or state of the process that he does not wish to be questioned with the warning that once he makes such indication. the right to counsel or any of his rights does not bar him from invoking it at any other time during the process.. he must be informed that it must be done in writing AND in the presence of counsel. 6. as the case may be. When is custodial investigation deemed to have started so as to entitle the suspect to be informed of his rights under the “Mahinay Doctrine” or the “Expanded Miranda Doctrine” ? Custodial investigation begins when it is no longer a general inquiry into an unsolved crime but starts to focus on a particular person as a suspect. informed of the cause or causes of his detention in the presence of his legal counsel. immediately asked them regarding their participation in the commission of the crime .e. 75. and 5. Zuela. JOSE TING LAN UY. allowed freely to avail of the services of a physician or physicians of choice. even while they were still walking along the highway on their way to the police station. i. In fact. 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. CA... 323 SCRA 589). Succinctly stated. Jr. Judge Ayson. Spontaneous statements voluntarily given. 334 SCRA 673). Duenas. 175 SCRA 216). These rights cannot be waived except in writing and in the presence of the counsel of choice. or even to a Mayor approached as a personal confidante and not in his official capacity (People vs. upon their arrest of some of the accused. GACAYAN 1. The protective mantle of section 12. to remain silent and to have competent and independent counsel preferably of his own choice. Are the above rights available to a suspect if he is under investigation by a private person? No. 76. 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. therefore. 3. allowed to communicate freely with his legal counsel and to confer with them at any time without restriction. Clearly. JR. Are spontaneous admissions made before a person could be informed of his rights during custodial investigation admissible as evidence? Yes. there was custodial investigation when the police authorities. confession to a private individual (Kimpo vs. Ordono.. 232 SCRA 53). BARIQUIT. 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. et al. verbal admission made to a radio announcer who was not a part of the investigation (People vs. as where appellant orally admitted killing the victim before the barangay captain (who is neither a police officer nor a law BAR OPERATIONS 2011 Page 53 . The claim that his affidavit is inadmissible in evidence in accordance with section 12 [1] of the Bill of Rights is not tenable. Endino. (THE PEOPLE OF THE PHILIPPINES VS. 2.. 475 SCRA 248). If the person cannot afford the services of counsel of his or her choice. 426 SCRA 666). 353 SCRA 307). when the police investigator starts interrogating or exacting confession from the suspect in connection with an alleged offense. LARRY D. 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. 4. to be informed of the nature and cause of his arrest. 341 SCRA 600) 77. 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. (PEOPLE VS. allowed to communicate freely and privately without restrictions with the members of his family or with his nearest relatives and be visited by them. Thus. 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. with the connivance of unscrupulous media practitioners. article III does not apply to administrative investigations (People vs. 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).GREEN NOTES IN POLITICAL LAW Prepared by: ATTY. the rights enumerated by the accused are not available BEFORE GOVERNMENT INVESTIGATORS ENTER THE PICTURE. 117690. 1991. without a valid waiver of such assistance. 339 SCRA 515. is inadmissible in evidence. PATUNGAN. vigilant and independent.GREEN NOTES IN POLITICAL LAW Prepared by: ATTY. NO. the former judge was not present when Marcos was being interrogated by the police. even if appellant’s confession were gospel truth. 135405. (iii) express. and (iv) in writing. 1. NO. 82604. 80. whether verbal or non-verbal. 2000. an extrajudicial confession must be: (i) voluntary. even without the assistance of a lawyer. Assistance of counsel must be effective. DANO. is inadmissible in evidence. To be admissible in evidence. PEOPLE VS. Also.R. What are the requisites before an extrajudicial confession is admissible? To be admissible in evidence. when taken without the assistance of counsel. 79. 336 SCRA 632. 81. G. A suspect’s confession. (iii) express. Is the presence of a lawyer to assist the suspect during custodial investigation sufficient to comply with the requirements of the Constitution? No. December 12.R. 354 SCRA 413. (ii) made with the assistance of competent and independent counsel. JUL. not one foisted on him by the police investigators or other parties. it was held that the counsel must be present from the inception of the custodial investigation not at any time thereafter. While she asked him if he had voluntarily given the statements contained in the typewritten document. NO. she was the police officers' own choice. Furthermore. without a valid waiver of such assistance. (PEOPLE VS. Is the extrajudicial confession of a suspect obtained without the assistance of a lawyer. but speaks of gospel truth. regardless of the absence of coercion or the fact that it had been voluntarily given. the mere presence of a lawyer is not sufficient compliance with the constitutional requirement of assistance of counsel. do not fall under custodial investigation. G. 1. when taken without the assistance of counsel. Not only was the accused subjected to custodial investigation without counsel. 117690.R. DANO. GACAYAN enforcement agent). this is far from being substantial compliance with the constitutional duty of police investigators during custodial interrogation. As held in PEOPLE VS. the lawyer who assists the suspect under custodial interrogation should be of the latter's own choice. A suspect’s confession. she did not ask Marcos if he was willing to have her represent him. (PEOPLE VS. G. does not violate appellant’s constitutional rights AND THEREFORE ADMISSIBLE IN EVIDENCE. 78. he was likewise denied effective assistance of counsel during the taking of his extra-judicial confession. regardless of the absence of coercion or the fact that it had been voluntarily given. In this case. NOVEMBER 29. 339 SCRA 515. SEPT. No. 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. 346 SCRA 458. SAMOLDE. Such admission. PEOPLE VS. the former judge whose assistance was requested by the police was evidently not of Marcos Jimenez' own choice. 2000). NO. even if appellant’s confession were gospel truth. SEPT. MAYORGA. (ii) made with the assistance of competent and independent counsel. 2000. This is not the mode of solicitation of legal assistance contemplated by the Constitution.R. G. admissible in evidence? BAR OPERATIONS 2011 Page 54 . From what time must the counsel assist the suspect during custodial investigation? Who must choose such counsel? In PEOPLE V. JIMENEZ.R. 128551. whether verbal or non-verbal. and (iv) in writing. 31. an extrajudicial confession must be: (i) voluntary. G. LARRY D. 2000). GREEN NOTES IN POLITICAL LAW Prepared by: ATTY. are not applicable when the suspect makes an spontaneous statement. the following requisites must be present: a. 284 SCRA 199. JANUARIO. III. De los Reyes. As such. it is inadmissible in evidence regardless of the absence of coercion or even if it was voluntarily given. These are: a. In PEOPLE VS. the confession must be made with the assistance of a competent and independent counsel. Section 12 of the Constitution. 82. PEOPLE VS. 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. PEOPLE VS. his uncounselled confession is admissible in evidence. The above requirements. and b. 332 SCRA 190) 85. TAN. confession which are the product of third degree methods such as torture. Art. What are the two (2) kinds of coerced or involuntary confessions under Section 12. the confession must be voluntary. while being investigated by other policemen of the same police station because the interest of the police is naturally adverse to the accused. (PEOPLE VS. LARRY D. however. GALIT. the confession must be in writing. Is the right to counsel available to a suspect during a police line-up? The Supreme Court had conflicting decisions on this aspect but ended up with the rule that since the accused will not be made to make any testimony during the police line-up. ( P vs. the SC in the case of PEOPLE VS. if it was made without the assistance of counsel. b. 332 SCRA 190 83. Usman BAR OPERATIONS 2011 Page 55 . those which are given without the benefit of Miranda Warnings. In fact. violence. BUT GIVEN IN AN ORDINARY MANNER WHEREBY THE ACCUSED ORALLY ADMITTED HAVING COMMITTED THE CRIME. intimidation. 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. ANDAN. it was held that even if the confession of the accused speaks the truth. March 3. GACAYAN No. threat. 1997 when the accused made a voluntary and verbal confession to the Municipal Mayor that he committed the crime imputed to him. and d. not elicited through questioning by the authorities. and PEOPLE VS. In order that a confession is admissible. Atty. 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. there is no need for him to be assisted by a lawyer.” 84. III of the Constitution? The two (2) kinds of involuntary or coerced confessions under Art. OBRERO. the confession must be express. OBRERO. c. then he is not under custodial investigation and therefore. 286 SCRA 207. PANFILO CABILES. 135 SCRA 465. force. This was the decision of the Supreme Court in the case of PEOPLE VS. 1990) 86-a.R. at 19. While under custodial investigation by Col. No. September 11. that confession is receivable as evidence against a co-accused. The appellants were arrested by the PAOCTF for Kidnapping and Murder of two (2) minor children of a businessman from Bulacan. vs. 2009. Judge Cruz. Alvarez. 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. Encipido45[98] we elucidated as follows: 42[93] Id. 2009. LARRY D. 229 Phil. 42[93] In People v. ET AL. March 17.GREEN NOTES IN POLITICAL LAW Prepared by: ATTY. since the Fiscal is there for the private complainant. (P. No. thereby ruling out the possibility that these were involuntarily made. REYES. and (5) where they did not have themselves examined by a reputable physician to buttress their claim. the same is admissible as evidence especially so that there is no evidence of compulsion. 294 SCRA 196 and PEOPLE VS. Pia. HATTON) 86. during and after its occurrence. (4) where there appeared to be no marks of violence on their bodies. GACAYAN Hassan. 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. 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. (2) where they failed to complain to the officers who administered the oaths. As held in the case of PEOPLE OF THE PHILIPPINES VS. jurisprudence makes it admissible as corroborative evidence of other facts that tend to establish the guilt of his co-accused. 178300. 162 SCRA 642. DE LA TORRE VS. Cesar Mancao. Was the confessions obtained during the custodial investigation admissible in evidence? Yes. What are the evidence of voluntariness in the suspect’s extrajudicial confession making it admissible in evidence? May such confession be used against a co-accusd? Up to what extent? In People vs. (P. it being replete with details which could only be supplied by the accused. (3) where they did not institute any criminal or administrative action against their alleged intimidators for maltreatment. the lawyers given to assist them tare the lawyers of PAOCTF. 86-b. G. 577 and PEOPLE VS. Their extra-judicial confessions clearly state how appellants and their cohorts planned the kidnapping as well as the sequence of events before.R. BAR OPERATIONS 2011 Page 56 . September 28. Pia.44[97] we ruled that where the confession is used as circumstantial evidence to show the probability of participation by the co-conspirator. Gamboa vs. we have ruled that although an extra-judicial confession is admissible only against the confessant. DOMINGO REYES. The voluntariness of a confession may be inferred from its language if.. the confession exhibits no suspicious circumstances tending to cast doubt upon its integrity. CA. vs. Matos-Viduaya. 178300. upon its face. With respect to appellant Reyes’s claim that the extra-judicial confessions of appellants Arnaldo and Flores cannot be used in evidence against him. even if they are known to each other. Alegria. the Fiscal could not have protected the rights of the suspect. 1990) Also. 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. 43[96] In People v. In People v. G. 157 SCRA 261. March 17. 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. 521 SCRA 470. 5 September 1991. not in extradition proceedings. 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. MANILA. RTC 17.R. 90. JULIANA ADALIM-WHITE VS. it was held that the potential extradite may be granted bail if he can 43[96] 44[97] 45[98] Santos v. 483 SCRA 290). 475 SCRA 175. Rule 114 provides that there shall no bail for a convict after final judgment. 560. 400 Phil. then he can still be convicted of the crime charged. LARRY D. 389 SCRA 623 through former Chief justice Panganiban. 1206 (2000). it was held that conviction may be had on circumstantial evidence provided the following requisites are present: [a] there is more than one circumstance. May a person subject of extradition from another country and where the cases against him in said country are bailable. If the extrajudicial admission or confession of the accused is declared inadmissible as evidence. 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. GR No. RTC 2 BORONGAN. (EDUARDO RODRIGUEZ VS. (BELTRAN VS. like circumstantial evidence. ROLANDO FELIXMINIA y CAMACHO. and [2] the totality of such circumstances eliminated beyond doubt the possibility of his innocence. THE SECRETARY OF JUSTICE. then the accused may be allowed to post bail. The purpose of the bond is to assure the court of the presence of the accused during the trial of his case. THEY DO NOT APPLY TO A PERSON CONVICTED BY FINAL JUDGMENT AND ALREADY SERVING SENTENCE. 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. THE PRESIDING JUDGE. This is so because the constitutional provision on the right to bail under Art. and [c] the combination of all circumstances is such as to produce a conviction beyond reasonable doubt. It is patently erroneous to release a convict on recognizance. III of the 1987 Constitution applies only to criminal cases. 88451. This is so because of the possibility of flight. 2007) 91. 88. SAMAR. the Supreme Court held that though the extrajudicial confession of the accused was declared inadmissible for violation of his right to counsel. In PEOPLE VS. be allowed to post bail pending the extradition hearings? No. JUDGE PURUGGANAN & MARK JIMENEZ. Section 24. 377. if there are evidence sufficient to prove his guilt beyond reasonable doubt. 1175. May a convicted person be released from jail through recognizance? No. April. 574 (1986). May a judge require “cash bond” only? No. 230 Phil. 66 SCRA 38). 89. May an accused charged of a capital offense and the evidence of guilt is strong be granted bail? Yes. If the probability of “flight” is nil. In People vs. BAR OPERATIONS 2011 Page 57 . BUT IN THE CASE OF GOVERNMENT OF HONGKONG VS. 2002. The Rules provides for four (4) ways of posting bond and it is grave abuse of discretion on the part of the judge to require cash bond only. 125333. OLALIA. Sandiganbayan. 201 SCRA 364. G. [b] the facts from which the inferences are derived are proven. (Almeda vs. 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. 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. must the accused be acquitted as a matter of right? No. In ATTY. JUDGE ARNULFO BUGTAS. As held in UNITED STATES VS. Mahinay. March 20.GREEN NOTES IN POLITICAL LAW Prepared by: ATTY. No. Villaluz. GACAYAN 87. May the court reverse the order of trial in a criminal case? No. a lawyer’s duty. It is discernible in [a] his refusal to cross-examine Oleby Nadera (the complainant for RAPE). 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. Thus: "However. Rule 119)the said procedure is now expressly sanctioned. Manolo Brotonel of the PAO cannot go unnoticed. especially that of a defense counsel. such would violate the right of the accused to presumption of innocence. It must be performed with all the zeal and vigor at his command to protect and safeguard the accused’s fundamental rights. Hence. must not be taken lightly. and [c] his failure not only to present evidence for the accused but to inform the accused of his right to do so." 95. However.GREEN NOTES IN POLITICAL LAW Prepared by: ATTY. 355 SCRA 415) 94.. JUDGE LANTION. 324 SCRA 490) 96. [b] the manner in which he conducted Maricris Nadera’s cross-examination. The cavalier attitude of Atty.(PEOPLE VS. 322 SCRA 160 (The Mark Jimenez Case) . 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. NADERA. 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. Otherwise. if the accused does not object to such a procedure.l986) In fact it should be noted that under the newly adopted 1985 Rules of Criminal Procedure (Sec. then a reverse order of trial is allowed by the Rules. 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. If the accused has the right to be present during the trial of his case. What is the “EQUIPOISE RULE”? If the evidence in a criminal case is evenly balanced. can he also refuse to appear during the hearings of his case? BAR OPERATIONS 2011 Page 58 . July 10. the constitutional presumption of innocence tilts the scale of justice in favor of the accused and he should be acquitted from the crime charged. the same may not be cancelled without notice and hearing. MANILA. 483 SCRA 290) 93. 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. in a 9-6 decision. However. Sandiganbayan. In extradition cases. (PEOPLE VS. In SECRETARY OF JUSTICE VS. LARRY D. 3e). DE LOS SANTOS. is the respondent therein entitled to notice and hearing before the issuance of a warrant of arrest against him? No. if he desires. THE PRESIDING JUDGE. his right to due process will be violated. on Motion for Reconsideration in the same case. GACAYAN prove by clear and convincing evidence that he is not a flight risk and will abide with all the orders and processes of the extradition court. JR. 92. when the accused admits the act or omission charged in the complaint or information but interposes a lawful defense. (Alejandro vs. (Sacay vs. To be required to present his evidence first would be making him prove his innocence and not the State proving his guilt. the order of trial may be modified accordingly. 96 SCRA 322) However. if bail was granted to an extradite. (EDUARDO RODRIGUEZ VS. 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. “Clear and convincing evidence” is an evidence with a standard lower than proof beyond reasonable doubt but more than preponderance of evidence. RTC 17. Pepito. SOLAR TEAM ENTERTAINMENT. 2000. HON. AUG.R. he admits that he is the one being referred to. 7 of the Speedy Trial Act of 1998.GREEN NOTES IN POLITICAL LAW Prepared by: ATTY. 140863. 338 SCRA 51. Military Commission. 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. 2. During arraignment. he must be present. (DUTERTE VS. HOW. May 20. Assertion or failure to assert such right by the accused.R. G. 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. Reasons for the delay. 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. BLANCO VS. 140188. 136757 – 58.R. COURT MARTIAL. GEN. SANDIGANBAYAN. P vs. 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. (SUMBANG VS. INC. capricious and oppressive delays. petitioner did not complain about the long delay in deciding his case. 2002. 2000). The determination of whether the delays are of said nature is relative and cannot be based on mere mathematical reckoning of time. G. as follows: Length of the delay. Particular regard to the facts and circumstances of the case. However. OMBUDSMAN. and 3. it was held that the right to speedy trial is violated only if the proceedings were attended by vexatious. (ii) Speedy Trial Act of 1998. Although it took about 8 years before the trial of this case was resumed. ANGCHANGCO VS. certain factors shall be considered and balanced to determine if there is delay. 3. 346 SCRA 108. G. 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. and Prejudiced caused by the delay. 98. LARRY D. BAR OPERATIONS 2011 Page 59 . NO. 125 SCRA 269) 97. 63 SCRA 546. length of delay. 22. 337 SCRA 227. SANDIGANBAYAN. NOV. promulgation of the decision and when he is to be identified by the witnesses for the prosecution. SANDIGANBAYAN. 289 SCRA 721. 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. reasons for such delay. NOS. assertion or failure to assert such rights by the accused and the prejudice caused by the delay. SANDIGANBAYAN. (Aquino vs. 2000. Judge. such delay did not amount to violation of petitioner’s right to speedy trial considering that such delay was not attributable to the prosecution. AUG. NO. GACAYAN No. 2004. During the 8-year period prior to April 19. The factors to consider in determining whether or not such right has been violated: 1. As held in the case of DE LA PENA VS. 27. unreasonable delays like failure to decide a complaint against the respondent for more than three (3) years from the time all the pleadings were filed violates the respondent’s right to a speedy disposition of his case and the case must be dismissed. Resavaga. 339 SCRA 86. What are the requisites of a valid trial in absentia? May an accused who jumped bail after arraignment be validly convicted by the trial court? The requisites of a valid trial in absentia are the following:    The accused was duly arraigned. Further. only the portion of his direct testimony where he was cross-examined shall be admissible as evidence. 41 Phil. (P vs. As such. (Chavez vs. 159 SCRA 426) 101. (Cavili vs. Tang Teng. vs.” As such. 145) or under the influence of prohibited drugs (PEOPLE VS. (Sales vs. 99 SCRA 92) 102. Crisologo. JR. It likewise violated the right of confrontation on the part of the accused. 98 SCRA 514) 104. 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. Generally. This is so because it is the body of the Information that is binding. GACAYAN 99. CA.R. he could be convicted of Murder. Such would violate the right of the accused against self-incrimination and if such happened. 132045. P vs. 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. G. The accused was notified of the hearing. (Ortigas. 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. NO. 103. forcing a person to give a sample of his urine to determine whether a woman is pregnant (Villaflor vs. whether a person is suffering from sexually transmitted disease (US vs.( P vs. 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. LARRY D. 164 SCRA 717. and The accused’s absence [during the trial] is unjustifiable. Seneris. CA. 64 SCRA 610) If the witness was partially examined. the proceedings shall be null and void. the accused was duly informed of the nature and cause of accusation against him. BAR OPERATIONS 2011 Page 60 . BANIHIT. it applies only to “testimonial compulsion. Garcia. not the caption thereof and therefore. 23 Phil. Lufthansa. to what kind of evidence does the right against self-incrimination applies? Generally. 62). 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. Fajardo vs. Such witness is beyond the jurisdiction of the Philippine Courts. 150 SCRA 653) 100.GREEN NOTES IN POLITICAL LAW Prepared by: ATTY. 24 SCRA 663) 105. 154 SCRA 610. May the accused be presented by the prosecution as the latter’s witness? No. 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. 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. Florendo. Hon. Summers. CONTINENTE.02. (PEOPLE VS. AUG. Is death as a penalty a cruel or unuasual punishment? No. 50 Phil. Does the right against self-incrimination applicable to civil and administrative cases also? Yes but unlike in criminal cases where the accused could not be presented by the prosecution and his right not to take the witness stand is absolute. Though the same does not require testimonial compulsion.R. P vs. Likewise forcing one to try a pair of shoes. 570) 107. (P vs. 2000) does not violate the person’s right against self-incrimination. 355 SCRA 1) 112. 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. having received her salary for the day when the testimony was taken. 106. 25. 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. If the dismissal was with the express consent of the accused. 64 SCRA 131) 109. G. What are the requisites before an accused may validly invoke double jeopardy? There is double jeopardy when there is: [1] valid complaint of information. 2000. 110. 155 SCRa 327. 111. 100801. 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. the right against self-incrimination will be violated by said act. Estoista. and [4] the accused was convicted or acquitted. Atencio. 170 SCRA 107 that it was merely suspended. In fact. How about forcing a person to give a sample of his handwriting?. Gatmaitan. NOS.GREEN NOTES IN POLITICAL LAW Prepared by: ATTY. 25. [3] the accused was validly arraigned. (Beltran vs. 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. P vs. September 26. pants or shirt does not fall under the above proscription. Intino. 339 SCRA 1. [2] filed in a court of competent jurisdiction. P vs. (Aclaracion vs. Gavarra. LARRY D. Samson. Masangkay. ALMARIO. PEOPLE VS. 156 SCRA 242. 647). GACAYAN AUG. or the case was dismissed or otherwise terminated without the express consent of the accused. BAR OPERATIONS 2011 Page 61 . This is so because the testimony was taken while she was still in the government and as such. Munoz. 93 Phil. 155 SCRA 113. it was her obligation to transcribe the same. may the dismissal result in double jeopardy? Yes in two (2) instances. SECRETARY OF JUSTICE that death through Lethal Injection is the most humane way of implementing the death penalty. the Supreme Court held in ECHEGARAY VS. This is so because it involves the use of the intelligence of the person. 108. 1988 it held in People vs. there is no double jeopardy. 116. May the prosecution appeal the acquittal since the evidence presented was not really a newly-discovered BAR OPERATIONS 2011 Page 62 . 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. (PEOPLE VS. ALMARIO. 115. GACAYAN As a general rule. The Judge dismissed it without any motion form the accused because the case is allegedly outside the MTC’s jurisdiction.GREEN NOTES IN POLITICAL LAW Prepared by: ATTY. After the presentation of the alleged “newly-discovered evidence”. (PEOPLE VS. the case was dismissed because it was found out that the same has prescribed because it was filed after more than 60 days. the accused was acquitted. In this case. he filed a Motion for New Trial based on a “newly-discovered evidence” which was granted by the court. acquittal or conviction in one shall bar prosecution from the other. 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. 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.” It is only when there is a clear violation of the accused’s right to speedy trial that the dismissal results in double jeopardy. Another information for the same offense was filed with the RTC which was likewise dismissed because of lack of jurisdiction. If an act is punished by law and an ordinance. the correct description of what happened is that the accused was “acquitted” and not “the case was dismissed with his consent”. Is he correct? Yes. After presenting his evidence to prove “incomplete self-defense”. LEVISTE. 355 SCRA 1) -double jeopardy has set in. 244 SCRA 202 and PEOPLE VS. LARRY D. As such. 113. It must be pointed out. then double jeopardy has set in. Within 15 days from promulgation. 148 SCRA 292) 114. 255 SCRA 238. TAMPAL. the Fiscal filed a 3 rd information for grave coercion before the MTC. The accused was convicted of frustrated murder. However. if the dismissal is through the instance of the accused or with his express consent. The accused was charged of grave coercion before the MTC and was duly arraigned. This is so because his plea was one of guilty and yet. the court acquitted him because what was allegedly proven by him was complete self-defense. he has to be rearraigned for him to enter a plea of “not guilty” in order that he could be validly acquitted. that in PEOPLE VS. The accused pleaded double jeopardy. this rule admits of two (2) exceptions: 1) the motion to dismiss is based on insufficiency of evidence or Demurrer to Evidence. RELOVA. In these two (2) instances. The accused was charged of theft of electricity based on the City Ordinance of Batangas City. 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. The Fiscal filed another information based on the Revised Penal Code. 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. he was acquitted. however. the government can no longer charge the accused of the same crime under the Revised Penal Code since double jeopardy has set in. After arraignment. Has double jeopardy set in? Yes. and 2) the motion to dismiss is based on the denial of the accused’s right to speedy trial. There was no valid arraignment. In the case of P vs. the same will be subject to a complete re-examination of the evidence on record. the evidence presented was not “newly-discovered evidence” and that assuming it to be so. What are the different forms of ex-post facto law? In order that a law is an ex post facto law. What is the "Supervening Fact Doctrine. However.R. P vs. and P vs. an acquittal is final and unappealable on the ground of double jeopardy. which makes an act done criminal before the passing of the law and which was innocent when committed. 121 SCRA 637 119. Villasis. vs. and punishes such action. So even if the court obviously erred in the appreciation of the evidence resulting in a decision of acquittal instead of conviction.R. LARRY D. Tarok. double jeopardy has set in and the government could no longer appeal the decision. 107 Phil. 118. appeal would put the accused in double jeopardy. 85 Phil.G. ET AL. RA 8249 is not a penal law. Court. Otherwise. LACSON VS. Rule 117. May the government appeal a judgment of acquittal or for the increase of the penalty imposed? No since double jeopardy has set in. Mun. P vs. Sandiganbayan. NO. the Supreme Court held that indeed. Buling. c. People. the same may not be invoked as when the questioned law involves the jurisdiction of the Sandiganbayan which is not a penal law.. 73 Phil. Tac-an. Adil. VELASCO. ROMEO ACOP & FRANCISCO ZUBIA. HON. G. GACAYAN evidence but a forgotten one and that even assuming that the same is a newly-discovered evidence. b.GREEN NOTES IN POLITICAL LAW Prepared by: ATTY. It is a substantive law on jurisdiction which is not penal in character. as in Galman vs. Ex post facto law prohibits the retrospectivity of penal laws. BAR OPERATIONS 2011 Page 63 . 268. (PEOPLE VS. JR. 113 SCRA 217) 117. 260. P. 340 SCRA 207. Judge Hernando. As mandated by the Constitution. 127444. When may the “ex-post facto law” rule be invoked? Only if the law sought to be applied is a “criminal law or penal”. (Section 7. G. No. (PANFILO M. (Mazo vs. P vs. Melo vs. it was insufficient to overturn the evidence of guilt as proven by the prosecution. P vs. THE SANDIGANBAYAN. THE EXECUTIVE SECRETARY. which aggravates a crime or makes it greater than when it was committed.. City Court of Manila. 766. January 20. SEPT. 182 SCRA 601. the same must be one— a. This is so because if the accused appeals the decision. 13. 108 SCRA 121. 1999) 120. 2000 Rules of Criminal Procedure. the appellate court may convict him of murder if the evidence warrants and that the lower court mis-appreciated the evidence." 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. 128096. statutes and cognate jurisprudence. it was not sufficient to overturn the evidence of guilt as shown by the prosecution’s evidence. 76 SCRA 462. 46 O. which changes the punishment and inflicts a greater punishment than the law annexed to the crime when it was committed. However. 712. 2000). though the decision was erroneous. if the accused was the one who appealed the decision of the CFI convicting him of homicide (though he was charged of murder). 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. LARRY D. 190 SCRA 686. every law which. or a proclamation of amnesty (KAY VILLEGAS KAMI. 211 SCRA 241). 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. Isagani Calderon (Adviser) Atty. TAN VS. 35 SCRA 429.College of Law) BAR OPERATIONS 2011 Page 64 . 160 SCRA 457. 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. Carillo (Treasurer) Art Miguel B. deprives a person accused of a crime of some lawful protection to which he has become entitled. SANDIGANBAYAN.GREEN NOTES IN POLITICAL LAW Prepared by: ATTY. MEJIA VS. e. BARRIOS. g. ******************************************* THE BARRISTERS’ CLUB OFFICERS: Virgel Amor Vallejos (Chancellor) Seychelles June M. PEOPLE VS. Sanlao and Angelito Velasquez Jr. Agranzamendez (Dean. Doringo (Secretary) Janilet Mishelle R. alters the situation of a person to his disadvantage. PAMARAN. Reynaldo U. such as the protection of a former conviction or acquittal. GACAYAN d. f. (Business Managers) Rachelle May Gallego (PRO) Paul Dean Mark Pila (SSG Representative) Brenda Filipinas Danganan (Ex-officio) Atty. in relation to the offense or its consequences.