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Eminent Domain
the property at the level of the buyer and the seller. It is only
when the property owner is not going to sell or that there is no
agreement as to the price to the property like in an ordinary sale,
that there should be eminent domain. So the question of
necessity or propriety.
In one old case, the question of propriety was asked because the
private property of the petitioner was expropriated despite the
fact that the local government unit has existing vacant property.
The question is, could the expropriator expropriate a property, in
this case a LGU, for purposes of let us say construction of an
amusement center when it has an existing vacant lot which could
serve the same purpose? The SC said you cannot because
again it is always be a question of propriety or necessity.
By the way, the power to tax, there is not much to discuss than
your knowledge of taxation. The only reference to the part of tax
in the Constitution is the uniform and equitable rule in taxation
under Article VI section 28 paragraph 1,
Power of Taxation
But that's not all the law is. The law is also memory;
the law also records a long-running conversation, a
nation arguing with its conscience.
Barack Obama, Dreams from My Father
1 August 2012
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The rest of the rights in our Constitution are only provided for
peculiar to our Constitution. These are eminent domain, nonimpairment clause, right to bail, suspension of the writ of the
habeas corpus, speedy disposition of cases, use of inadequate
or substandard penal facility and non-imprisonment for debt.
These are so called peculiar to our Constitution because they are
not normally found in other constitutions or more else which
discusses the so called hierarchy of rights.
Now in substantive due process, there are 3 general standards
being used. This has been discussed in the case of Southern
vs. Anti-terrorism, 632 SCRA 146. These 3 general standards
used to review substantive due process if there is a question of
whether the law or action of the government violates substantive
due process. The 3 tests are (very important!):
1. Strict Scrutiny Test
2. Intermediate Scrutiny Test
3. Rational or Differential Test.
These 3 tests were originally or first used under the discussion of
equal protection on the basis of classification. However, the SC
has used these tests to test cases involving questions of
substantive due process.
In strict scrutiny test, there must have to be a compelling state
interest that must have to be shown and that there are available
means which are less restrictive to individual freedoms (murag
ang dapat kay there are no other available less restrictive
available means ) that must be proven also to allow a valid
government regulation. So if a regulation is to be tested under
strict scrutiny there must have to be 2 things to be proven;
1. That there is a compelling state interest that
must have to be observed and
2. There are less restrictive available means of
regulating individual liberties to allow possible
state regulation. (I think dapat there are no other
less restrictive available means )
But this test is usually used when the law in question deals with
fundamental rights such as speech, gender or race. In strict
scrutiny, the presumption of constitutionality has a very narrow
application. To state it differently, the presumption of
constitutionality may not even apply because the State has to
prove that there is a compelling state interest and that there are
no other less restrictive means available to regulate individual
liberties.
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The void for vagueness doctrine has resulted into three other
discussions. They are:
1. Facial Challenge
2. Overbreadth doctrine
3. As applied challenge
Facial Challenge is a challenge of law that it is not constitutional.
There is a word by word, phrase by phrase, provision by
provision examination on whether or not the law is valid or
whether the law is unconstitutional. Facial challenges are
generally allowed only in cases involving free speech and
related activities. It is also extended to religious freedom and
other fundamental rights such as life, liberty, conscience, petition,
assembly, pursuit of happiness and privacy. It is not however
applicable to penal laws in general. The reason for disallowing
facial challenges on penal laws in general is because it will
prevent the state from prosecuting any person simply because
the person can question the constitutionality of penal statute
which ruling may also affect part persons who are not parties to
the case.
That is the difference with respect to as applied challenge.
When the criminal statute is questioned as unconstitutional and it
does not involve speech and any of those fundamental rights,
as applied challenge maybe allowed, the reason for that as to
that specific accused or defendant, the law maybe
unconstitutional. I may have mentioned here before about the
decision of RTC 11 Judge Europa about unconstitutionality of
that provision on vagrancy law. That is an example of as applied
challenge as against that individual the law has to be considered
by that court as unconstitutional. Of course it does not apply to all
the rest who are not parties to the case. That is allowed because
each person charged before the court in violation of criminal
statute may have different circumstance than the rest. If the
circumstance is so and that tested against the law in question,
that law maybe considered as unconstitutional to him if applied.
So that maybe allowed even in ordinary criminal case provided it
is made as applied challenge.
Again, facial invalidation is generally not allowed in criminal
cases except those involving speech or those involving
fundamental rights. This allowance is considered by court as
permissible because these are our fundamental rights. If this
regulation of ones right to speech is declared unconstitutional,
the effect would not only be to the person challenging the
constitutionality of the law but also to those who may in the
future commit the same act or exercise the same right and also
with respect to other fundamental rights.
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iii.
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EQUAL PROTECTION
Now, lets go to equal protection.
Theres a case between Surigao Electric vs. ERC. This is a
case involving imposition of rates by public utilities. The question,
can they be regulated under the police power? It is a no brainer,
it should be regulated. The only discussion here perhaps is the
nature of the rate fixing authority of our regulatory bodies. In rate
fixing, there are two considerations: One, the quasi-judicial
function of the regulatory office or the quasi-legislative function of
the regulating office in fixing the rate. If the rates are fixed under
the bodys quasi-judicial function, then the requirements of due
process or notice and hearing must have to be satisfied. Because
it will only apply to a particular party or particular operator in that
case. But if the rate is fixed under the exercise of its quasilegislative power then notice and hearing need not be complied
as a requirement of due process because regulatory departments
or offices involved in public utilities are always given the power to
fix the rates based on public hearings and consultations and that
should satisfy the requirement of due process because anyway it
is not only applicable to one specific operator or public utility
operator but it will affect the rest or all of those in the particular
industry. There is no specific operator targeted because all of the
operators are targeted and the power of these regulatory offices
to fix rates are not limited to the exercise of quasi-judicial power.
This case of White Light vs. City of Manila... This is an old case
involving an old problem in the City of Manila. As you have read,
this involves the power of the local government unit to enact an
ordinance to limit or regulate the business involving operations of
hotels and motels to curb the increasing problem of prostitution.
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Ok. Equal protection. We have said that the inclusion of the equal
protection clause under the same Section 1 of the due process
clause is by design and not by accident. General violations of
due process or arbitrariness are usually questioned under the
due process clause but specific instances of violations or acts of
arbitrariness are usually raised under equal protection issues
because it affects a particular class or individual. Now, the equal
protection clause in the Constitution simply requires that all
persons or things similarly situated should be treated alike both
as to the rights conferred and responsibilities imposed.
The equal protection just like due process has two components:
(1) the substantive parts and (2) the procedural parts. Procedural
is simply that the law must have to be applied equally to those in
the same class. Equal protection does not require absolute
equality, it only requires substantive equality among equals
and the equality is measured or determined on the basis of valid
classification which is based on similarities and some particular
which is not shared by the rest with respect to the same
particulars. There is, again, no absolute similarity in all but at
least to these specifics they are similar and they are not shared
with the rest who do not belong to said class.
Now for there to be a valid classification the law has always
required that the classification must rest on (1) substantial
distinction. (2) It must be germane to the purpose of the law. The
classification must (3) not be limited to existing conditions only
and that (4) it must be equally applicable to those belonging to
the same class.
When it is said that the law must be based on substantial
distinction, the distinction must be of considerable value or
importance. As to what or how considerable the classification or
distinction is actually based on the second condition that it must
be germane to the purpose of the law, meaning, there is
reasonable connection with the means to accomplish the
purpose of the law. For example, when you say classification
based on gender, it may be substantial if the purpose of the law
is to grant maternity or paternity benefits but gender if used for
purposes of granting minimum wages then it is not substantial
because it is not germane to the purpose of the law. The purpose
being is to give a fair days wage to a fair days labor. A fair days
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due process. The strictest test here would be the strict scrutiny
test and this is used on issues on a equal protection or
discrimination is based on the fundamental rights. So I think if
the local ordinance in Davao on anti-discrimination eventually
pass and if there should be a question, it should be tested under
the strict scrutiny test. Whether or not it is a valid regulation on an
issue on discrimination based on race, gender, power, religion
and other factors mentioned therein. There are constitutionallyimposed equalities in the Constitution: provisions on economic
equality, on political equality and on social equality. There is a
provision there where political wealth or economic wealth should
be diffused or property ownership, I have read somewhere, I do
not know who wrote this which says you cannot legislate the
poor into prosperity by legislating the wealthy out of property
which is actually true, you take property from the wealthy does
not mean that the poor can prosper. I dont know. You cannot
multiply wealth by dividing it or that the government cannot give
to anybody anything that the government does not take first from
somebody else. The government will not actually give something
it owns to the poor to prosper. It takes it somewhere else
normally from the rich to give to the poor. So, we, the poor will be
happy. I remember those because I had a discussion one time
with another professor and he said these are fundamental
mistakes in the Constitution. Fundamental because it is the
fundamental law of the land. How could you diffuse property or
legislate the poor into prosperity by taking the wealth of the rich?
Because if you take it from the rich, normally, government will still
have to pay just compensation. So where will the government
take what it will have to pay for just compensation? Take them
from the rich, but as Obama would have it, tax the rich to give to
the poor. Probably I took this from Obamas political opponents.
Ok, lets continue tomorrow.
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2 August 2012
EQUAL PROTECTION
Before we leave the item on Equal Protection, theres 1 case
involving EO 1 of PNoy creating the Philippine Truth
Commission. In this case of Biraogo vs. Philippine Truth
Commission, the SC nullified the creation of the Commission on
the ground of violation of equal protection. The dismissal was
based on the reasoning that the non-inclusion of past
administrations similarly situated (since the only object of the
investigation was the Arroyo administration) constitutes
arbitrariness. The Arroyo administration, according to the SC, is
not a class by itself and if the object of the commission is to
inquire into the excesses of the previous administration, then
everybody (i.e. those before Arroyo) must have to be included.
The non-inclusion therefore of the other past administrations
constitutes class legislation.
LOUIS "BAROK" C. BIRAOGO vs.
THE PHILIPPINE TRUTH COMMISSION OF 2010
G.R. No. 192935
December 7, 2010
Concept of the Equal Protection Clause
One of the basic principles on which this government was founded
is that of the equality of right which is embodied in Section 1,
Article III of the 1987 Constitution. The equal protection of the laws
is embraced in the concept of due process, as every unfair
discrimination offends the requirements of justice and fair play. It
has been embodied in a separate clause, however, to provide for a
more specific guaranty against any form of undue favoritism or
hostility from the government. Arbitrariness in general may be
challenged on the basis of the due process clause. But if the
particular act assailed partakes of an unwarranted partiality or
prejudice, the sharper weapon to cut it down is the equal protection
clause.
"According to a long line of decisions, equal protection simply
requires that all persons or things similarly situated should be
treated alike, both as to rights conferred and responsibilities
imposed." It "requires public bodies and institutions to treat
similarly situated individuals in a similar manner." "The purpose of
the equal protection clause is to secure every person within a
states jurisdiction against intentional and arbitrary discrimination,
whether occasioned by the express terms of a statue or by its
improper execution through the states duly constituted
authorities." "In other words, the concept of equal justice under the
law requires the state to govern impartially, and it may not draw
distinctions between individuals solely on differences that are
irrelevant to a legitimate governmental objective."
The equal protection clause is aimed at all official state actions, not
just those of the legislature. Its inhibitions cover all the
departments of the government including the political and
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It, however, does not require the universal application of the laws
to all persons or things without distinction. What it simply requires
is equality among equals as determined according to a valid
classification. Indeed, the equal protection clause permits
classification. Such classification, however, to be valid must pass
the test of reasonableness. The test has four requisites: (1) The
classification rests on substantial distinctions; (2) It is germane to
the purpose of the law; (3) It is not limited to existing conditions
only; and (4) It applies equally to all members of the same class.
"Superficial differences do not make for a valid classification."
For a classification to meet the requirements of constitutionality, it
must include or embrace all persons who naturally belong to the
class. "The classification will be regarded as invalid if all the
members of the class are not similarly treated, both as to rights
conferred and obligations imposed. It is not necessary that the
classification be made with absolute symmetry, in the sense that
the members of the class should possess the same characteristics
in equal degree. Substantial similarity will suffice; and as long as
this is achieved, all those covered by the classification are to be
treated equally. The mere fact that an individual belonging to a
class differs from the other members, as long as that class is
substantially distinguishable from all others, does not justify the
non-application of the law to him."
The classification must not be based on existing circumstances
only, or so constituted as to preclude addition to the number
included in the class. It must be of such a nature as to embrace all
those who may thereafter be in similar circumstances and
conditions. It must not leave out or "underinclude" those that
should otherwise fall into a certain classification. As elucidated in
Victoriano vs. Elizalde Rope Workers' Union and reiterated in a
long line of cases,
The guaranty of equal protection of the laws is not a guaranty of
equality in the application of the laws upon all citizens of the state.
It is not, therefore, a requirement, in order to avoid the
constitutional prohibition against inequality, that every man, woman
and child should be affected alike by a statute. Equality of
operation of statutes does not mean indiscriminate operation on
persons merely as such, but on persons according to the
circumstances surrounding them. It guarantees equality, not
identity of rights. The Constitution does not require that things
which are different in fact be treated in law as though they were the
same. The equal protection clause does not forbid discrimination
as to things that are different. It does not prohibit legislation which
is limited either in the object to which it is directed or by the
territory within which it is to operate.
The equal protection of the laws clause of the Constitution allows
classification. Classification in law, as in the other departments of
knowledge or practice, is the grouping of things in speculation or
practice because they agree with one another in certain
particulars. A law is not invalid because of simple inequality. The
very idea of classification is that of inequality, so that it goes
without saying that the mere fact of inequality in no manner
determines the matter of constitutionality. All that is required of a
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22
The Rules of Court provide for the requirements for the issuance
of search warrants:
1. an application must be under oath or affirmation;
2. there is determination of probable cause to be done
personally by the judge.
Probable cause has been defined as such amount of facts or
circumstances which would lead a prudent judge to believe that a
crime has been committed and that the fruits, effects or objects of
the crime are in the place to be searched. There is also a
requirement of a hearing for the determination of probable cause.
The hearing is obviously summary in character but what is
required under the Rules is that there must have to be an oath or
affirmation during or before the examination and that the judge
must have to ask searching questions on the applicant and/or
witnesses. There were several cases in the past that [ruled that]
leading questions would not be allowed or are insufficient for the
judge to determine probable cause. The answers must have to
be based on the personal knowledge of the applicant and/or
witnesses. This is a rule on Evidence i.e. that a person can only
be allowed to testify on facts which he has perceived through the
use of his senses so that if the matters taken in the application
turn out to be false, such applicant and/or witnesses can be held
liable for false testimony.
Now in one case, People vs. Mamaril (October 6, 2010), the SC
had occasion to characterize the test for the proper determination
of probable cause. The issue raised by the appellant on appeal
was that there was no proper determination of probable cause
based on the line of questioning of the applicant (a police officer)
considering that there were only few questions asked. The SC
said that there are no general criteria on the amount of probable
cause (or the amount of questions that the judge must ask for
probable cause to be properly determined). What is important is
that the judge must personally believe that there exists probable
cause based on the facts and circumstances of the case. Again,
there is no hard and fast rule as to how the determination of
probable cause should be made because it is largely dependent
on findings and the application of these facts by the judge.
PEOPLE OF THE PHILIPPINES vs. OLIVE RUBIO MAMARIL
G.R. No. 171980
October 6, 2010
The contention of the accused-appellant, as asserted through the
Public Attorneys Office, is that the issued search warrant was not
based on probable cause. The accused-appellant relied heavily on
its argument that SPO4 Gotidoc, as the applicant of the search
warrant, did not testify on facts personally known to him but simply
relied on stories that the accused- appellant was peddling illegal
drugs.
The requisites for the issuance of a search warrant are: (1)
probable cause is present; (2) such probable cause must be
determined personally by the judge; (3) the judge must examine, in
writing and under oath or affirmation, the complainant and the
witnesses he or she may produce; (4) the applicant and the
witnesses testify on the facts personally known to them; and (5)
the warrant specifically describes the place to be searched and the
things to be seized.
On the other hand, probable cause means such facts and
circumstances which would lead a reasonable discreet and
prudent man to believe that an offense has been committed and
that the objects sought in connection with the offense are in the
place sought to be searched.
Based on the records, the Court is convinced that the questioned
search warrant was based on a probable cause. A portion of the
direct testimony of SPO4 Gotidoc is hereby quoted:
Q: What is your basis for applying for search warrant against the
accused?
A: Because there were many persons who were going to her place
and weve been hearing news that she is selling prohibited drugs
and some of them were even identified, sir.
Q: But you did not conduct any surveillance before you applied for
search warrant?
A: Prior to the application for search warrant, we conducted
surveillance already.
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Now, dont confuse this with that old case involving PICOP in
Bislig City. The issue there was on the particularity in the
description of the place (to be searched) because PICOP is a
very big compound. What was sought to be searched there were
the structures where illegal firearms and ammunitions were
supposed to have been kept and stored. In that case, the SC
said that the warrant failed to describe the particular structure to
be searched simply because it (PICOP) is a very big compound
(including forest land, among others). So if it were to be a big
compound where the structures are considerably separated from
each other, there must have to be a sufficient description of
which structure in the said address is sought to be searchednot
only of the address of the big compound.
PAPER INDUSTRIES CORPORATION OF THE
PHILIPPINES (PICOP) vs.
JUDGE MAXIMIANO C. ASUNCION
G.R. No. 122092 May 19, 1999
Thus, this Court has held that "this constitutional right [i]s the
embodiment of a spiritual concept: the belief that to value the
privacy of home and person and to afford it constitutional
protection against the long reach of government is no less than to
value human dignity, and that his privacy must not be disturbed
except in case of overriding social need, and then only under
stringent procedural safeguards." Additionally, the requisite of
particularity is related to the probable cause requirement in that, at
least under some circumstances, the lack of a more specific
description will make it apparent that there has not been a
sufficient showing to the magistrate that the described items are to
be found in particular place.
In the present case, the assailed search warrant failed to described
the place with particularly. It simply authorizes a search of "the
aforementioned premises," but it did not specify such premises.
The warrant identifies only one place, and that is the "Paper
Industries Corporation of the Philippines, located at PICOP
Compound, Barangay Tabon, Bislig[,] Surigao del Sur." The
PICOP compound, however, is made up of "200 offices/building,
15 plants, 84 staff houses, 1 airstrip, 3 piers/wharves, 23
warehouses, 6 POL depots/quick service outlets and some 800
miscellaneous structures, all of which are spread out over some
one hundred fifty-five hectares." Obviously, the warrant gives the
police officers unbridled and thus illegal authority to search all the
structures found inside the PICOP compound.
In their Opposition, the police state that they complied with the
constitutional requirement, because they submitted sketches of the
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27
xxx
Fourth. The issue of ownership of the seized branded LPG
cylinders is irrelevant and hence need no belaboring. BP 33, as
amended, does not require ownership of the branded LPG
cylinders as a condition sine qua non for the commission of
offenses involving petroleum and petroleum products. Verily, the
offense of refilling a branded LPG cylinder without the written
consent of the brand owner constitutes the offense regardless of
the buyer or possessor of the branded LPG cylinder.After all, once
a consumer buys a branded LPG cylinder from the brand owner or
its authorized dealer, said consumer is practically free to do what
he pleases with the branded LPG cylinder. He can simply store
the cylinder once it is empty or he can even destroy it since he has
paid a deposit for it which answers for the loss or cost of the empty
branded LPG cylinder. Given such fact, what the law manifestly
prohibits is the refilling of a branded LPG cylinder by a refiller who
has no written authority from the brand owner. Apropos, a refiller
cannot and ought not to refill branded LPG cylinders if it has no
written authority from the brand owner.
Fifth. The ownership of the seized branded LPG cylinders,
allegedly owned by Omni customers as petitioners adamantly
profess, is of no consequence. The law does not require that the
property to be seized should be owned by the person against
whom the search warrants is directed. Ownership, therefore, is of
no consequence, and it is sufficient that the person against whom
the warrant is directed has control or possession of the property
sought to be seized. Petitioners cannot deny that the seized LPG
cylinders were in the possession of Omni, found as they were
inside the Omni compound.
In fine, we also note that among those seized by the NBI are 16
LPG cylinders bearing the embossed brand names
of Shellane, Gasul andTotalgaz but
were
marked
as
Omnigas. Evidently, this pernicious practice of tampering or
changing the appearance of a branded LPG cylinder to look like
another brand violates the brand owners property rights
as infringement under Sec. 155.1 of RA 8293. Moreover,
tampering of LPG cylinders is a mode of perpetrating the criminal
offenses under BP 33, as amended, and clearly enunciated under
DOE Circular No. 2000-06-010 which provided penalties on a per
cylinder basis for each violation.
Foregoing considered, in the backdrop of the quantum of evidence
required to support a finding of probable cause, we agree with the
appellate court and the Office of the Chief State Prosecutor, which
conducted the preliminary investigation, that there exists probable
cause for the violation of Sec. 2 (a) in relation to Sec. 3 (c) of BP
33, as amended.
Probable cause has been defined as the existence of such facts
and circumstances as would excite belief in a reasonable mind,
acting on the facts within the knowledge of the prosecutor, that the
person charged was guilty of the crime for which he was
prosecuted.
After all, probable cause need not be based on clear and
convincing evidence of guilt, as the investigating officer acts upon
reasonable beliefprobable cause implies probability of guilt and
requires more than bare suspicion but less than evidence which
would justify a conviction.
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29
a)
b)
Philip Morris Products, Inc. Philip Morris wrote the NBI, requesting
assistance in curtailing the proliferation of fake Marlboro cigarettes
in Angeles City, Pampanga. After doing surveillance work in that
city, Respondent Donato, Jr., the NBI agent assigned to the case,
succeeded in confirming the storage and sale of such fake
cigarettes at the house that belonged to petitioner del Rosario.
Respondent Donato applied for a search warrant. The NBI agents
proceeded to implement the warrant; however, their search yielded
no fake Marlboro cigarettes.
Subsequently, Petitioners filed a complaint for P50 million in
damages against Respondents. The latter answered the complaint
with a motion to dismiss on the grounds of: a) the failure of the
complaint to state a cause of action; b) forum shopping; and c) the
NBI agents immunity from suit, they being sued as such
agents. The RTC denied the motion, which was annulled by CA.
Petitioners sought reconsideration of the decision but the CA
denied it; hence, this petition for review.
Issues
1.
Whether or not the CA correctly ruled that the complaint of
the petitioners did not state a cause of action; and
2.
Whether or not the CA correctly ruled that the petitioners
were guilty of forum shopping.
Rulings
[One]
The CA held that the petitioners complaint before the RTC failed
to state a cause of action. This was because while said complaint
alleged that the NBI agents unlawfully procured and enforced the
search warrant issued against the Del Rosarios, it failed to state
the ultimate facts from which they drew such conclusion.
According to the Del Rosarios, the allegations in their complaint
stated a cause of action against respondents NBI agents.
However, the court found that all that the Del Rosarios alleged was
that respondents NBI agents used an unlawfully obtained search
warrant against them, evidenced by the fact that, contrary to the
sworn statements used to get such warrant, the NBI agents found
no fake Marlboro cigarettes in petitioner Alexander del Rosarios
premises.
It must be noted that a judicially ordered search that fails to
yield the described illicit article does not of itself render the
courts order unlawful.
The Del Rosarios did not allege that respondents NBI agents
violated their right by fabricating testimonies to convince the RTC
of Angeles City to issue the search warrant. Their allegation that
the NBI agents used an unlawfully obtained search warrant is a
mere conclusion of law. While a motion to dismiss assumes as
true the facts alleged in the complaint, such admission does not
extend to conclusions of law. Statements of mere conclusions of
law expose the complaint to a motion to dismiss on ground of
failure to state a cause of action.
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Further, the allegation that the search warrant in this case was
served in a malicious manner is also not sufficient. Allegations
of bad faith, malice, and other related words without ultimate facts
to support the same are mere conclusions of law.
The Del Rosarios broad assertion in their complaint that the
search was conducted in full and plain view of members of the
community does not likewise support their claim that such search
was maliciously enforced. There is nothing inherently wrong with
search warrants being enforced in full view of neighbors. In fact,
when the respondent or his representative is not present during the
search, the rules require that it be done in the presence of two
residents of the same locality. These safeguards exist to protect
persons from possible abuses that may occur if searches were
done surreptitiously or clandestinely.
[Two]
Invoking Section 21 of this Courts AM 02-1-06-SC, the CA held
that, rather than file a separate action for damages, the Del
Rosarios should have filed their claim for compensation in the
same proceeding and with the same court that issued the writ of
search and seizure. The Del Rosarios were thus guilty of forum
shopping.
The SC found this untenable as the subject search warrant was
not issued under A.M. 02-1-06-SC, which governed the issuance
of a writ of search and seizure in a civil action for infringement filed
by an intellectual property right owner against the supposed
infringer of his trademark or name.
Philip Morris, the manufacturer of Marlboro cigarettes, did not go
by this route. Philip Morris did not file a civil action for infringement
of its trademark against the Del Rosarios before the RTC of
Angeles City. Instead, Philip Morris sought assistance from the
NBI for the apprehension and criminal prosecution of those
reportedly appropriating its trademark and selling fake Marlboro
cigarettes.
In turn, the NBI instituted a police action that included applying for
a search and seizure warrant under Sections 3, 4, 5 and 6 of Rule
126 of the Rules of Criminal Procedure (not under the provisions of
A.M. 02-1-06-SC) against the Del Rosarios upon the belief that
they were storing and selling fake Marlboro cigarettes in violation
of the penal provisions of the intellectual property law.
The proceeding under Rule 126, a limited criminal one, does
not provide for the filing of counterclaims for damages
against those who may have improperly sought the issuance
of the search warrant. Consequently, the Del Rosarios had the
right to seek damages, if the circumstances warranted, by
separate civil action for the wrong inflicted on them by an
improperly obtained or enforced search warrant. Unfortunately,
their complaint, as worded, failed to state a proper cause of action.
Petitioner Arthur del Rosario claims that respondents NBI agents
wrongfully included him as respondent in their application for a
search warrant since he neither owned the house at 51 New York
Street nor resided in it.
In the old case of Lim (no citation), the SC said that the judge in
determining the probable cause for the existence of a warrant is
actually performing a judicial function, whereas the determination
by the investigating officer as to the existence of a probable
cause to indict a person in court is an executive function.
But now, under the Rules of Court, the judge, upon receiving the
full set of documents from the investigating officer can both, one,
perform the executive function by determining the existence of
probable cause whether or not there is a well-engendered belief
to charge the person in court. If there is none (probable cause),
the judge must require the prosecution to submit additional
evidence.
As to Warrants of Arrest
Under the Rules of Court, the criminal case against an accused
has already been processed during preliminary investigation or
preliminary examination. As such, what is now before the court
for the issuance of warrant (of arrest) is a complete set of records
coming from the investigating officer him or herself (whether from
the prosecutor or the MTC judge [if s/he is still allowed to do so,
today? No longer] or by the Ombudsman in appropriate cases).
And second, if after that or even before that the judge really
believes there is no really probable cause to continue with the
indictment or prosecution of the case, then the judge can dismiss
the case. This is the second right:
a)
b)
If the judge does not find any probable cause or does not
continue with the indictment, the judge must require the
investigating officer (the prosecutor) to submit, within a certain
period of time, further documents or evidence for him or her (the
judge) to determine whether or not there is probable cause to
proceed.
It would seem that under the Rules of Court, the judge can
determine probable cause just like a prosecutor (referring to this
right). This is a variation from the previous discussions that the
determination by the judge of the existence of a probable cause,
when the case docket is received by him from the investigating
31
2.
3.
2.
3.
As to the
time
of
implementat
ion
As a rule, it
must be in
daytime.
As to the
manner of
implementat
ion
It must be
shown to the
person who
is in control
of the place
intended to
be searched
Further Distinctions
1.
As to
lifetime
its
SEARCH
WARRANT
10 days from
its issuance
WARRANT OF ARREST
None.
It is valid until it is served.
The 10 day period referred
to under the Rules of
Court (Sec. 4, Rule 113)
refers to the requirement
of return or the duty of the
enforcing officer to return
the warrant to the court,
whether or not it has been
served. This is not the life
of warrant of arrest.
In practice, if after the
return was made the
accused was not yet
indicted or the arrest was
not successful, an alias
warrant is issued upon
application
by
the
prosecution. This issues
as a matter of course.
32
1.
2.
3.
4.
33
34
35
ASONG, JP LEO
KINTANAR, KRISZA JOY
LAMAN, JAHMES WA EL
"I returned, and saw under the sun, that the race is not to the
swift, nor the battle to the strong, neither yet bread to the wise,
nor yet riches to men of understanding, nor yet favour to men
of skill; but time and chance happeneth to them all."
~Ecclesiastes 9:11
36
August 7, 2012
VALID INSTANCES OF WARRANTLESS
SEARCHES AND SEIZURES
A. SEARCH OF MOVING VEHICLES
The exception as to warrantless searches and seizures has also
been applied to searches and seizure of MOVING VESSELS.
Like searches on MOTOR VESSELS (in the same
characterization of MOVING VEHICLES), [they] can be also be
brought out of the territorial jurisdiction of the search warrant
where it is supposed to be implemented or served.
As such, searches of moving vessels are considered covered by
the instance of search of moving vehicles. Thus, there must have
to be also that minimum determination of probable cause.
Also covered are searches on AIRCRAFTS. These vehicles have
the same characteristics as that of those previously mentioned.
In their case, however, the visible searches will be to determine
violations of customs and tariff laws as well as immigration laws.
Also, in some cases, the search-of-moving-vehicles-exception
has been applied to cover instances of SEARCHES OF
VEHICLES IN BORDERS.
In that case, checkpoints are conducted at the borders (land
border, no border as to seas). These are [conducted and]
allowed when the vehicles to be searched would cross the border
to get to another state.
So again, invariably, those instances are covered under searches
of moving vehicles, which by their nature, are moving in or out
the territory where the search warrant will have to be
implemented.
B. PLAIN VIEW DOCTRINE
barged into the residence. There, they verified the informants tip
that the accused were actually in pot session. There were several
items taken consisting of sachets which turn out to be MET
(shabu). So, the question was whether or not the search and
seizure of these drugs was considered valid and therefore
admissible under the doctrine of pain view.
The SC reiterated the conditions in which search in plain view
shall be applicable.
The firstand which is the most important requisite or
conditionis that there must have to be a valid prior intrusion.
The intrusion must have to be valid before all the rest of the
conditions will be appreciated in favor of the applicability of the
doctrine.
Now, based on the facts of the case, the knowledge of the police
officers was based on the informants tip. Neither did they have
any personal knowledge, nor anything which consisted of
probable cause so as to make the entry.
Therefore, the intrusion was not justifiable. Since the intrusion
was not justified, the discovery of the drugs later on would not be
justified as well because they should not have been there to
begin with.
37
(b)
(c)
38
39
the
40
41
42
43
Boulevard. The caller did not explain why he thought the men
looked suspicious nor did he elaborate on the impending crime.
Police officer Fami then revealed that when the receipt of the
evidence was prepared, all 3 accused were not represented by
counsel. He likewise disclosed that he was the one who escorted
all the accused during their physical examination. He also escorted
all 3 to the fiscals office where they were informed of the charges
against them.
The 3 were found guilty by the trial court, and the case was
automatically elevated to the CA for review. However, Nuevas
withdrew his appeal. Thus, the case was considered closed and
terminated as to him. The CA affirmed the trial court.
Issue
Whether or not Din and Inocencio waived their right against
unreasonable searches and seizures?
Held
No. The search conducted in Nuevas case was made with his
consent. However, in Dins case there was none.
There is a reason to believe that Nuevas indeed willingly submitted
the plastic bag with the incriminating contents to the police officers.
It can be seen that in his desperate attempt to exculpate himself
from any criminal liability, he cooperated with the police, gave them
the plastic bag, and even revealed his associates, offering himself
as an informant.
His actuations were consistent with the lamentable human
inclination to find excuses, blame others, and save oneself even at
the cost of others lives. Thus, the Court would have affirmed
Nuevas conviction had he not withdrawn his appeal.
On the other hand, with respect to the search conducted in the
case of Din, the Court finds that no such consent had actually been
given. The police officers gave inconsistent, dissimilar testimonies
regarding the manner by which they got hold of the plastic bag.
Neither can Dins silence at the time be construed as implied
acquiescence to the warrantless search. Thus, the prosecution
failed to clearly show that Din intentionally surrendered his right
against unreasonable searches.
As to Inocencios case, his supposed possession of the dried
marijuana leaves was sought to be shown through his act of
looking into the plastic bag that Din was carrying. The act
attributed to Inocencio is insufficient to establish illegal possession
of the drugs or even conspiracy to illegally possess the same. The
prosecution failed to show by convincing proof that Inocencio knew
of the contents of the bag and that he conspired with Din to
possess the illegal items.
But in one case, that case of VEROY vs. LAYAGUE, the consent
there to conduct a search was allowed [but only for the purpose
of ] searching the house for the presence of rebel soldiers. So
these are people supposedly hiding in the residential building.
44
Petitioners are husband and wife who owned and formerly resided
at Skyline, Davao City. In June 1988, they transferred to Quezon
City where they are presently residing. The care and upkeep of
their residence was left to two (2) houseboys. The key to the
master's bedroom as well as the keys to the children's rooms were
retained by petitioners.
On April 12, 1990, Capt. Obrero, raided the house of herein
petitioners in Davao City on information that the said residence
was being used as a safehouse of rebel soldiers. They were able
to enter the yard with the help of the caretakers but did not enter
the house since the owner was not present and they did not have a
search warrant.
Petitioner Ma. Luisa was contacted by telephone to ask permission
to search the house. Ma. Luisa Veroy responded that she is flying
to Davao City to witness the search but relented if the search
would not be conducted in the presence of Major Ernesto
Macasaet.
The authority given by Ma. Luisa Veroy was relayed by Capt.
Obrero to Major Macasaet who answered that Ma. Luisa Veroy has
called him twice by telephone on the matter and that the
permission was given on the condition that the search be
conducted in his presence.
The following day, Capt. Obrero and Major Macasaet conducted
the search pursuant to the authority granted by petitioner Ma.
Luisa Veroy. The caretakers facilitated their entry into the yard,
and using the key entrusted to Edna Soguilon, they were able to
gain entrance into the kitchen. A locksmith, Badiang, had to be
employed to open the padlock of the door leading to the children's
room. Capt. Obrero and Major Macasaet then entered the
children's room and conducted the search. Capt. Obrero recovered
handgun, printed materials, etc.
Issue
Whether the articles were inadmissible as evidence for being
violative of the prohibition against unreasonable searches and
seizures?
Held
Yes. Petitioners aver that while they concede that Capt. Obrero
had permission from Ma. Luisa Veroy to break open the door of
their residence, it was merely for the purpose of ascertaining
45
SO, the waiver must have to be express and not implied. Failure
to object is not considered an express waiver.
G. JAIL SAFETY
a cake, the guard can slice it without violation because the right
to privacy is diminished because you are supposed to be
incarcerated. It is based on the protection of STATE INTEREST.
REMEDIES
The 2nd remedy is civil action for damages under Article 32 of the
CC. This refers to violation of civil liberties including the rights
against unreasonable searches and seizure. You can claim
damages under CIVIL LAW.
ART 129 -
3.
ART 130 -
These crimes carry the penalty from the range of arresto mayor
maximum to prision correccional minimum.
MOTION to QUASH
There is also another procedure by which you could seek a ruling
on the admissibility and this is to file a motion to quash the
information.
COMMON INSTANCES
LIMINE
There is also what have been allowed (at least in local practice
but not in the rules of court) the so-called LIMINE. This is a pre
trial proceeding where the accused would ask the court before
trial for [a] determination whether [an evidence] should be
excluded.
46
In fact, not only the person conducting the search and seizure,
but also the officials who ordered the same under the concept of
RESPONDEAT SUPERIOR.
1.
The last instance is still under Rules of Court, Sec. 13, Rule 113:
1. The person legally arrested can be rearrested without
warrant.
2.
So, a person who was legally arrested but has escaped before
he was turned over to penal facility or has been rescued, then
that person can be rearrested without warrant.
So those are the 6 common instances of warrantless arrest.
DISCUSSIONS
So the discussions here are on the first 2 instances. First, the in
flagrante delicto case and second, where an offense has just
been committed.
Now, in the in flagrante delicto cases, a personal knowledge is
required that there has been a commission of an offense
because the offense here is being committed, has just been
committed, is about to be committed, is being committed, or has
just been committed in the presence of the person arresting.
So, the personal knowledge is upon the offense. It goes without
saying that since it is in flagrante delicto, the identity goes there
as well. But then again, the emphasis is on the offense because
the offense must have been committed in the presence of the
person arresting.
Now, as to the second situation, there are two considerations: the
phrase that the offense has just been committed and the 2nd
phrase personal knowledge of facts indicating to the person to
be arrested has committed it.
47
Now, in the phrase that the offense has just been committed.
the safest rule, I think, is less than 24 hours.
When the call for police investigation came, the police officer
went to the hospital and there, they were able to see the
condition of the victim, that is, there were pieces of wood and
hollow block in his skull. Also, they went to the scene of the crime
and they discovered that there was a wood and broken hollow
Thus, the officers eventually made the arrest within 12 hours and
the SC said that it was valid based on Rule 113 section 5
paragraph B because the personal knowledge of the witness
were also confirmed by the person who were in the scene of the
crime upon their investigation.
In the famous case of ROLITO GO vs. CA, while the name of the
accused ROLITO GO was simply relayed to them, being the
arresting officer, the arresting officer was able to determine his
identity through the credit card receipt payment that the accused
paid. His identity was also determined based on the car
registration and therefore based on their investigation, there is a
reasonable conclusion that the identity of the accused was not
merely provided to them by the witness but they were also able
to personally determine by their investigation that that is the
identity of the person to be arrested.
CARCEDO, HARVEY
LADEZA, ROEL
PAGUICAN, JOSHUA
PELONIO, AM
48
August 8, 2012
Rendition normally is not allowed under our Constitutional set-up
because warrants of arrest are supposed to be issued only after
the determination of probable cause in relation to the criminal
offense. We have said earlier that in case of the president, in the
exercise of his powers over foreign relations, he has the authority
to issue a warrant for the arrest of an undesirable alien for his
immediate deportation. That is a form of an administrative arrest.
It is a long established exception to the rule that warrants of
arrest can only be issued by the courts.
Now the other form of administrative arrest would be the
issuance of warrants of arrest on account of a refusal or
disobedience to a subpoena. If it is issued by a court in relation
to a court case, there might not be a difficulty of understanding
that such warrant may be issued for disobeying the subpoena
because that would constitute contempt of court. Nonetheless, in
our system there are certain non-judicial bodies which have the
power to issue subpoena where the refusal or disobedience
would also result into a contemptuous act resulting into that body
to issue a warrant for the arrest. That is also a form of an
administrative arrest. So for example, Congress has the power to
issue subpoena and while it is not based on any positive rule or
express provision of law, but by reason of its mission that the
National Legislature should have all the necessary authority to
ensure that all its processes are made effective (just like the
courts, in relation to its legislative functions specifically in its
legislative investigations, its can issue warrants of arrest directing
the arrest of persons for refusal to obey or follow the subpoena
and that contempt power of the national legislature need not be
exercised by the courts). That is again a form of an administrative
arrest.
The next item in your outline is
PRIVACY OF COMMUNICATIONS
We have made mention already that this privacy of
communications or privacy or the right to privacy is not actually a
--- there is no direct provision in the constitution with respect to
ones right to privacy, at most is this Section 3, Article III
Privacy of Communications:
Section 3.
1. The privacy of communication and
correspondence shall be inviolable
except upon lawful order of the court, or
49
2.
50
of the joke that there was this man, because of the unavailability
of these kinds of information or education in Philippine society,
Filipinos would normally have a hard time dealing with these
things, words or phrases. So there was this one man who was to
buy a condom and so he told the pharmacist, the sales lady in
the pharmacy: Miss, condom Miss in a very low tone and voice
as if and the sales lady said Saiz Sir and then he said again
Miss, condom Miss. Lady: Saiz lagi Sir, Man: Small Miss,
Lady: Tag Saiz Pisos Sir ba, Sa-iz. By the way, do they
come in sizes? Ive heard they come in different flavors?
This also led to the controversial decision in that American
decision in Roe vs. Wade. Abortion or the right to have an
abortion has long been decided by the US Supreme Court in this
case where in the first trimester it is allowed and there is no
limitation or regulation allowed by the State. In the second
trimester, there is a little regulation; in the third trimester, State
has the right to regulate abortion except for medical reasons. So
that is something which is not an issue about anything else but
more on the right of the mother to be let and left alone in her
decision whether she would want to have a child. Again this is in
relation to her right to privacy, to be left her the decision whether
she would want a child.
Now, in the Constitution, this right to privacy under Sec. 3, Article
III was included for the first time in the 1935 Constitution and the
prevailing rule from which this was copied from (American rule)
was that the right to privacy is extended only to tangible objects
(Tangibles Only Rule) and there must be a trespass. Now in the
privacy of communication and correspondence, if there is no
trespass, there is no applicability of the right (to privacy in relation
to the search and seizure clause). Thats why it has to be
extended. The search and seizure clause in the American
experience at the time this provision was included in 1935
Constitution was that for the search and seizure clause to apply,
there must have to be an actual trespass and what is sought to
be seized are tangible items. Now letters of communication are
not tangible if they are electronically transmitted and normally if
there is such electronic seizure of this communication, there is no
actual trespass. So to extend that to communications and
correspondence they can include this provision in 35, which was
copied until the present Constitution.
The term communications here is used in its general sense. But
what is actually covered by this privacy of communications is
communications between a government official and a private
citizen, and the communications between private citizens which
cannot be violated by the State. So the question is, what about
51
the trial court rendered judgment for Martin. It (1) declared that the
documents and papers are properties of Dr. Martin, (2) ordered
Zulueta to return them and (3) enjoined her from using them in
evidence. On appeal, the Court of Appeals affirmed the decision of
the Regional Trial Court. Hence, Zulueta filed this petition for
review with the Supreme Court.
Issue:
Whether or not the constitutional injunction declaring that the
privacy of communication and correspondence to be inviolable
apply even to the spouse of the aggrieved party.
Held:
The documents and papers are inadmissible in evidence. The
constitutional injunction declaring the privacy of communication
and correspondence [to be] inviolable is no less applicable simply
because it is the wife (who thinks herself aggrieved by her
husbands infidelity) who is the party against whom the
constitutional provision is to be enforced. The only exception to the
prohibition in the Constitution is if there is a lawful order [from a]
court or when public safety or order requires otherwise, as
prescribed by law. Any violation of this provision renders the
evidence obtained inadmissible for any purpose in any
proceeding.
The intimacies between husband and wife do not justify any one of
them in breaking the drawers and cabinets of the other and in
ransacking them for any telltale evidence of marital infidelity. A
person, by contracting marriage, does not shed his/her integrity or
his right to privacy as an individual and the constitutional protection
is ever available to him or to her.
The law insures absolute freedom of communication between the
spouses by making it privileged. Neither husband nor wife may
testify for or against the other without the consent of the affected
spouse while the marriage subsists. Neither may be examined
without the consent of the other as to any communication received
in confidence by one from the other during the marriage, save for
specified exceptions. But one thing is freedom of communication;
quite another is a compulsion for each one to share what one
knows with the other. And this has nothing to do with the duty of
fidelity that each owes to the other.
Hence, the petition for review is DENIED.
52
53
54
TRINIDAD, CHE
MAGABILEN, DARLENE
August 9, 2012
FREEDOM OF EXPRESSION
55
Now in freedom of the press there are four aspects to it that was
discussed in the cases of News Sound Broadcasting vs Dy and
Soriano vs Laguardia. The four aspects are as follows:
1. Freedom from prior restraint
2. Freedom from subsequent punishment
which are actually the two main components of free speech
3. Freedom to access for information under Article
3,Section 7
4. Freedom of circulation (CHAVEZ vs GONZALES)
G.R. No. 168338
February 15, 2008
FRANCISCO CHAVEZ vs. RAUL M. GONZALES
THIS CASE IS ABOUT THE GARCI SCANDAL
Generally, restraints on freedom of speech and expression are
evaluated by either or a combination of three tests, i.e., (a) the
dangerous tendency doctrine which permits limitations on
speech once a rational connection has been established between
the speech restrained and the danger contemplated; (b) the
balancing of interests tests, used as a standard when courts
need to balance conflicting social values and individual interests,
and requires a conscious and detailed consideration of the
interplay of interests observable in a given situation of type of
situation; and (c) the clear and present danger rule which rests
on the premise that speech may be restrained because there is
substantial danger that the speech will likely lead to an evil the
government has a right to prevent. This rule requires that the evil
consequences sought to be prevented must be substantive,
"extremely serious and the degree of imminence extremely high."
As articulated in our jurisprudence, we have applied either the
dangerous tendency doctrine or clear and present danger test
to resolve free speech challenges. More recently, we have
concluded that we have generally adhered to the clear and
present danger test.XXX
Anatomy of Restrictions: Prior Restraint, Content-Neutral and
Content-Based Regulations
Philippine jurisprudence, even as early as the period under the
1935 Constitution, has recognized four aspects of freedom of the
press. These are (1) freedom from prior restraint; (2) freedom from
punishment subsequent to publication; (3) freedom of access to
information; and (4) freedom of circulation.
Considering that petitioner has argued that respondents press
statement constitutes a form of impermissible prior restraint, a
closer scrutiny of this principle is in order, as well as its sub-specie
of content-based (as distinguished from content-neutral)
regulations.
56
57
58
59
or
Not
the
COMELECs
prohibition
60
the more for the utmost respect when what may be curtailed is the
dissemination of information to make more meaningful the equally
vital right of suffrage. The so-called balancing of interests
individual freedom on one hand and substantial public interests on
the other is made even more difficult in election campaign cases
because the Constitution also gives specific authority to the
Commission on Elections to supervise the conduct of free, honest,
and orderly elections. When faced with border line situations where
freedom to speak by a candidate or party and freedom to know on
the part of the electorate are invoked against actions intended for
maintaining clean and free elections, the police, local officials and
COMELEC, should lean in favor of freedom. The regulation of
election campaign activity may not pass the test of validity if it is
too general in its terms or not limited in time and scope in its
application, if it restricts one's expression of belief in a candidate or
one's opinion of his or her qualifications, if it cuts off the flow of
media reporting, and if the regulatory measure bears no clear and
reasonable nexus with the constitutionally sanctioned objective.
The posting of decals and stickers in mobile places like cars and
other moving vehicles does not endanger any substantial
government interest. There is no clear public interest threatened by
such activity so as to justify the curtailment of the cherished
citizen's right of free speech and expression. Under the clear and
present danger rule not only must the danger be patently clear and
pressingly present but the evil sought to be avoided must be so
substantive as to justify a clamp over one's mouth or a writing
instrument to be stilled. The regulation strikes at the freedom of an
individual to express his preference and, by displaying it on his car,
to convince others to agree with him. A sticker may be furnished by
a candidate but once the car owner agrees to have it placed on his
private vehicle, the expression becomes a statement by the owner,
primarily his own and not of anybody else. The restriction as to
where the decals and stickers should be posted is so broad that it
encompasses even the citizen's private property, which in this
case is a privately-owned vehicle. In consequence of this
prohibition, another cardinal rule prescribed by the Constitution
would be violated. Section 1, Article III of the Bill of Rights provides
that no person shall be deprived of his property without due
process
of
law.
The prohibition on posting of decals and stickers on "mobile"
places whether public or private except in the authorized areas
designated by the COMELEC becomes censorship.
61
2.
3.
4.
That is why even in the FAIR ELECTIONS ACT you may have
noticed that during election campaign, there are a lot of posters
or streamers which are not compliant that are posted in private
places. Because there is a question, even if you read the Fair
Elections Act, what is covered by the regulation to be posted in
COMELEC spaces must have to be compliant is no question. It
must compliant to the regulated sizes. But what if you would want
it to be placed in your own private place, should your poster or
sticker be compliant?
In the past several elections, this 2001 Fair Elections Act had
always maintained that if it is in a private property, you can put
everything there, in whatever size, because it is your expression.
If you have a wall by your building, write your name there, put
your face there and let the COMELEC bring it down and let us
see who shall win because it is your expression. The reason why
they regulate the sizes in the COMELEC Space is to give
everybody a fair chance. If the regulation is one long bond paper
size, why put up a poster size? Your face will be bigger than the
rest.
FREEDOM OF ASSEMBLY
The other allowable or which still continue to be allowed under
present day consideration is the Public Assembly Act of 1985
or BP 880. Under BP 880, the law primarily requires a permit to
be secured first if the public assembly is to be held in a public
place other than those designated as freedom parks. Now, this
requirement of permit is content neutral because it has nothing to
do with the utterances or the expression made in that public
assembly. The reason why permit is required is in-order for the
LGU or for the State, for that matter, to allocate from among the
public using the public facility on who shall be allowed to use this
for the efficient use of everybody.
If it is in a private place, BP 880 is not applicable. So you can do
your own thing in that private place. The only requirement is that,
there must have consent from the private place owner. If it is in
the freedom park or established to be a freedom park, still no
requirement of permit because it is supposed to be established
for such purpose.
Now, if you have noticed there was an issue on this permit during
the last SONA because from the vantage point of the applicant,
the one who conducted the rally going to Batasang Pambansa
they said they have made an application and there was no
response - either to grant it or to deny it.
62
(a) It shall be the duty of the mayor or any official acting in his
behalf to issue or grant a permit unless there is clear and
convincing evidence that the public assembly will create a clear
and present danger to public order, public safety, public
convenience, public morals or public health.(b) The mayor or any
official acting in his behalf shall act on the application within two (2)
working days from the date the application was filed, failing which,
the permit shall be deemed granted. Should for any reason the
mayor or any official acting in his behalf refuse to accept the
application for a permit, said application shall be posted by the
applicant on the premises of the office of the mayor and shall be
deemed to have been filed.(c) If the mayor is of the view that there
is imminent and grave danger of a substantive evil warranting the
denial or modification of the permit, he shall immediately inform the
applicant who must be heard on the matter.
(d) The action on the permit shall be in writing and served on the
application within twenty-four hours.
(e) If the mayor or any official acting in his behalf denies the
application or modifies the terms thereof in his permit, the applicant
may contest the decision in an appropriate court of law.
(f) In case suit is brought before the Metropolitan Trial Court, the
Municipal Trial Court, the Municipal Circuit Trial Court, the
Regional Trial Court, or the Intermediate Appellate Court, its
decisions may be appealed to the appropriate court within fortyeight (48) hours after receipt of the same. No appeal bond and
record on appeal shall be required. A decision granting such permit
or modifying it in terms satisfactory to the applicant shall, be
immediately executory.
(g) All cases filed in court under this Section shall be decided
within twenty-four (24) hours from date of filing. Cases filed
hereunder shall be immediately endorsed to the executive judge
for disposition or, in his absence, to the next in rank.
2.
63
What happened in this case was that the IBP National Office
applied for a rally permit to conduct a rally at Mendiola Bridge. It
was granted without any hearing but they were allowed to
conduct that public assembly or rally at Plaza Miranda. The IBP
still proceeded to conduct their rally at the designated time and
date per application and also at the place of the application but
not in the place as indicated in the permit. They went to Plaza
Mendiola and they were charge for violation of BP 880, for
conducting a rally without a permit. They went to the SC on that
issue eventually and the SC upheld the position of the IBP
because the change of the tenor of the application in the grant of
the permit as applied for can only be done if there is justifiable
reasons for doing so under the clear and present danger rule and
there is a hearing conducted to determine whether or not indeed
there is a need to alter or change the terms of the application.
OK!
G.R. No. 175241
February 24, 2010
INTEGRATED BAR OF THE PHILIPPINES
vs. MAYOR JOSE "LITO" ATIENZA
In Bayan, Karapatan, Kilusang Magbubukid ng Pilipinas (KMP) v.
Ermita, the Court reiterated:
x x x Freedom of assembly connotes the right of the people to
meet peaceably for consultation and discussion of matters of
public concern. It is entitled to be accorded the utmost deference
and respect. It is not to be limited, much less denied, except on
a showing, as is the case with freedom of expression, of a
clear and present danger of a substantive evil that the state
has a right to prevent. Even prior to the 1935 Constitution,
Justice Malcolm had occasion to stress that it is a necessary
consequence of our republican institutions and complements the
right of free speech. To paraphrase the opinion of Justice
Rutledge, speaking for the majority of the American Supreme
Court in Thomas v. Collins, it was not by accident or coincidence
that the rights to freedom of speech and of the press were coupled
in a single guarantee with the rights of the people peaceably to
assemble and to petition the government for redress of grievances.
All these rights, while not identical, are inseparable. In every case,
therefore, where there is a limitation placed on the exercise of this
right, the judiciary is called upon to examine the effects of the
challenged governmental actuation. The sole justification for a
64
was slated for a specific public place. It is thus reversible error for
the appellate court not to have found such grave abuse of
discretion and, under specific statutoryprovision, not to have
modified the permit "in terms satisfactory to the applicant."
65
MACLA, JAMAIL
ORCULLO, HAZEL BETH
- J.M. Power
66
67
FREEDOM OF INFORMATION
Section 7. The right of the people to information on matters of
public concern shall be recognized. Access to official records,
and to documents and papers pertaining to official acts,
transactions, or decisions, as well as to government research
data used as basis for policy development, shall be afforded the
citizen, subject to such limitations as may be provided by law.
Now this case of CenPEG vs COMELEC involves freedom of
information refers to the matter of disclosure of the source code
of the automated national and local elections of 2010. The source
code is actually as described in this case the readable
representation of the instructions on how the machine would
work during the elections. In simple terms, the SC even likened it
to a blueprint of instructions or a recipe if you would want to be
more simple about it on how the machine would read and
eventually count, canvass and eventually transmit the votes.
Freedom of information-- the petitioner here wanted to examine
the source code. The COMELEC, however, failed to make the
source code available until the source code was delivered and
deposited with the Banko Sentral ng Pilipinas. It was too late
because the elections have already been conducted. But still in
this petition for mandamus, the SC granted the petition
compelling the COMELEC to disclose the source code of the
AES technology for the automated elections. Rightfully so
because this will be the same source code, perhaps, that we will
be using in the 2013 elections.
G.R. No. 189546 September 21, 2010
CENTER FOR PEOPLE EMPOWERMENT IN
GOVERNANCE, vs.COMMISSION ON ELECTIONS,
68
69
1.
2.
3.
4.
70
you should pass the subject and not fail the subject. So
everything is given for you to explain or even allowed you to
attach your countervailing evidence if there is.
But for violation of the schools rules on discipline, you always
follow that procedural due process. It has been applied in several
cases already. One of the landmark cases is that of the Ateneo
involving fraternity Aquila Legis where the SC said that the
respondent student must be furnished with the charge in writing,
given the opportunity to present his evidence. There must be a
hearing conducted where the parties be allowed to offer
evidence. Although, there is no allowance for cross examination.
The investigating committee must act independently and must
also decide the case based on the evidence on record adduced
by the parties. These are the minimum requirements for
procedural due process when the school for higher learning will
impose sanctions upon a student.
ADMU vs Capulong
G.R. No. 99327 May 27, 1993
Corollary to their contention of denials of due process is their
argument that it is Ang Tibay case 25 and not theGuzman case
which is applicable in the case at bar. Though both cases
essentially deal with the requirements of due process,
the Guzman case is more apropos to the instant case, since the
latter deals specifically with the minimum standards to be satisfied
in the imposition of disciplinary sanctions in academic institutions,
such as petitioner university herein, thus:
(1) the students must be informed in writing of the nature and
cause of any accusation against them; (2) that they shall have the
right to answer the charges against them with the assistance of
counsel, if desired: (3) they shall be informed of the evidence
against them (4) they shall have the right to adduce evidence in
their own behalf; and (5) the evidence must be duly considered by
the investigating committee or official designated by the school
authorities to hear and decide the case.
It cannot seriously be asserted that the above requirements were
not met. When, in view of the death of Leonardo Villa, petitioner
Cynthia del Castillo, as Dean of the Ateneo Law School, notified
and required respondent students on February 11, 1991 to submit
within twenty-four hours their written statement on the
incident, 27 the records show that instead of filing a reply,
respondent students requested through their counsel, copies of the
charges. 28While of the students mentioned in the February 11,
1991 notice duly submitted written statements, the others failed to
do so. Thus, the latter were granted an extension of up to February
18, 1991 to file their statements.
Indubitably, the nature and cause of the accusation were
adequately spelled out in petitioners' notices dated February 14
and 20, 1991. 30 It is to be noted that the February 20, 1991 letter
71
72
73
so, as you may have seen, the bigger religious groups or sects,
we have are those who encourage freedom of thought and
freedom conscience of its members.
For those who have these thought and conscience imposed on
them, they may be good in numbers but they are not good in
()
The Philippines is how many percent Catholics? (80% according
to Wikipedia, citing the NSO Census of 2000 as its source.)
NON-ESTABLISHMENT CLAUSE
1.
2.
74
2.
Establish and maintain, a system of free public
education in the elementary and high school levels. Without
limiting the natural rights of parents to rear their children,
elementary education is compulsory for all children of school age;
RELIGIOUS INSTRUCTIONS IN PUBLIC
SCHOOLS
ARTICLE XIV, Section 3.
1.
XXX
2.
XXX
3.
At the option expressed in writing by the parents or
guardians, religion shall be allowed to be taught to their children
or wards in public elementary and high schools within the regular
class hours by instructors designated or approved by the
religious authorities of the religion to which the children or wards
belong, without additional cost to the Government.
CIVIL CODE, Article 359. The government promotes the full
growth of the faculties of every child. For this purpose, the
government will establish, whenever possible:
(1) Schools in every barrio, municipality and city where optional
religious instruction shall be taught as part of the curriculum at
the option of the parent or guardian;
PUBLIC AID TO RELIGION
ARTICLE VI, Section 29.
1.
XXX
2.
No public money or property shall be appropriated,
applied, paid, or employed, directly or indirectly, for the use,
benefit, or support of any sect, church, denomination, sectarian
institution, or system of religion, or of any priest, preacher,
minister, other religious teacher, or dignitary as such, except
when such priest, preacher, minister, or dignitary is assigned to
the armed forces, or to any penal institution, or government
orphanage or leprosarium.
3.
XXX
Aglipay vs. Ruiz (Not Discussed by Atty. Montejo)
In Aglipay v. Ruiz, this Court had occasion to state that the
government should not be precluded from pursuing valid objectives
secular in character even if the incidental result would be favorable
to a religion or sect. It has likewise been held that the statute, in
order to withstand the strictures of constitutional prohibition, must
have a secular legislative purpose and a primary effect that neither
advances nor inhibits religion. Assessed by these criteria, Republic
75
ELMAN, JENIKA
TRAVILLA, CHERRYL
PENDATUN, DATS
DUMAGAN, MENCHIE
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77
In the case of Texas vs. Johnson regarding the flag burning issue
it has been upheld that such is a valid freedom of expression
provided that the flag that you burn is you own, meaning that it is
your own property and for so long as you burn your own property
which will not result in burning of another person's property that
is sufficiently protected under freedom of expression. So the flag
is therefore not icon or an object which would be imbued with
such interest that it will promote nationalism or patriotism on
individual. There are a lot of acts which would ordinarily be
shown as disrespect in relation to how flags are tainted in certain
national activities. Of course it would be different if it is the flag
owned by the state which would be subjected to such acts
because that would necessarily show disrespect.
Even in the Philippines, we still have that law which would
penalize unauthorized use or destruction of Philippine flag which
are ordinarily used in the course or conduct of official business.
There is a way of disposing a tattered flags which if not followed
will subject the person to a criminal liability.
The other case is Estrada vs. Escritor, if you remember this case,
there was an administrative case for gross immorality involving a
Supreme Court employee because of a supposed to be immoral
liaison between two married individuals separated from their
respective spouses. They have claimed that their association or
union is authorized as part of their religious practices and in fact
they were able to show that this practice had long been practiced
in their religion and there is a document signed by them,
supposedly witnessed by their God that their union is a union
base on their belief. The SC applied the compelling interest test.
We have discussed this already in freedom of expression, that if
there is a compelling state interest, the state has the right to
protect. The state may regulate the expression, in this case
between the exercise of religion.
As we have known from our freedom of expression discussion,
there must have a compelling interest that must be shown. What
that compelling state interest is not defined or contained in an
enumerated list of items that would fall under that. It is merely
characterized as something preferred like national security,
preservation of the lives of multiple individuals and not violating
explicit constitutional protection. So if we go by the extreme of
your religion. Take for example your religion believes of offering a
virgin to your god, we have always said that it may be regulated
not only because it is difficult to find one now (just kidding ) but
because it would result to something that the state has the right
to prevent. Nobody is entitled to kill a person; it is said under the
Constitution, without due process of law. So even if with the claim
of religious right, that this is free exercise -- we believed that we
can be saved from all of these if we offer a virgin to our god
78
case at bar, the State has not evinced any concrete interest in
enforcing the concubinage or bigamy charges against respondent
or her partner. Thus the States interest only amounts to the
symbolic
preservation
of
an
unenforced
prohibition.
Furthermore, a distinction between public and secular morality and
religious morality should be kept in mind. The jurisdiction of the
Court extends only to public and secular morality.
The Court further states that our Constitution adheres the
benevolent neutrality approach that gives room for accommodation
of religious exercises as required by the Free Exercise Clause.
This benevolent neutrality could allow for accommodation of
morality based on religion, provided it does not offend compelling
state interests. Assuming arguendo that the OSG has proved a
compelling state interest, it has to further demonstrate that the
state has used the least intrusive means possible so that the free
exercise is not infringed any more than necessary to achieve the
legitimate goal of the state. Thus the conjugal arrangement cannot
be penalized for it constitutes an exemption to the law based on
her right to freedom of religion.
79
This old case of Pamil vs. Teleron discuss the old provision of the
Revised Administrative Code that there is a disqualification for
priest or religious persons to participate in elections or to be
elected to the public office because of the Constitutional
principle of the separation of the Church and the state.
PAMIL v. TELERON
G.R. No. L-34854 November 20, 1978
Facts: Private respondent, Father Margarito R. Gonzaga, was, in
1971, elected to the position of municipal mayor of Alburquerque,
Bohol. Therefore, he was duly proclaimed. A suit for quo warranto
was then filed by petitioner, himself an aspirant for the office, for
his disqualification based on this Administrative Code provision: "In
no case shall there be elected or appointed to a municipal office
ecclesiastics, soldiers in active service, persons receiving salaries
or compensation from provincial or national funds, or contractors
for public works of the municipality." The suit did not prosper,
respondent Judge sustaining the right of Father Gonzaga to the
office of municipal mayor. He ruled that such statutory ineligibility
was impliedly repealed by the Election Code of 1971. The matter
was then elevated to this Tribunal by petitioner. It is his contention
that there was no such implied repeal, that it is still in full force and
effect. Thus was the specific question raised.
Issue: WON the disqualification of the respondent based on
Administrative Code provision Constitutional.
Held: The challenged Administrative Code provision, certainly
insofar as it declares ineligible ecclesiastics to any elective or
appointive office, is, on its face, inconsistent with the religious
freedom guaranteed by the Constitution. To so exclude them is to
impose a religious test. Here being an ecclesiastic and therefore
professing a religious faith suffices to disqualify for a public office.
There is thus an incompatibility between the Administrative Code
provision relied upon by petitioner and an express constitutional
mandate.
80
attorneys and Ali himself (and after reviewing the report generated
by the FBI to which he had access), recommended to the Justice
Department that Ali be granted his conscientious objector status.
However, the Justice Department, in a letter to the Appeal Board,
advised against granting such status. The Board honored this
request without stating the reasons it was basing its decision.
According to the U.S. Supreme Court:
"That denial, for which no reasons were ever given, was,
as we have said, based on a recommendation of the
Department of Justice, overruling its hearing officer and
advising the Appeal Board that it 'finds that the
registrant's conscientious-objector claim is not sustained
and recommends to your Board that he be not [so]
classified.' This finding was contained in a long letter of
explanation, from which it is evident that Selective
Service officials were led to believe that the Department
had found that the petitioner had failed to satisfy each of
the three basic tests for qualification as a conscientious
objector."
The three basic tests for conscientious objector status that the
Justice Department letter argued Ali did not meet were:
1.
2.
3.
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82
83
Escobedo v. Illinois
378 U.S. 478
June 22, 1964
Facts: Danny Escobedo's brother-in-law was killed on January 19,
1960. At about 2:30 in the morning, Escobedo was arrested
without a warrant and taken to the Chicago police headquarters for
questioning. Escobedo made no statement to the police and was
released at approximately 5:00 that afternoon, after his lawyer
obtained a writ of habeascorpus.
Ten days later, on January 30, Escobedo was again arrested,
handcuffed, and driven to the police station. On the way to the sta
tion, the police allegedly informed Escobedo that a man named
Benedict DiGerlando had said it was Escobedo who had fired the
shots that killed his brother-in-law. The police also allegedly told
Escobedo that the case against him was pretty secure and he
might as well "come clean" and admit to the killing. At that point,
Escobedo asked to have his lawyer present before answering any
questions.
The police questioned Escobedo for several hours, during which
he continued to ask for his attorney. He was told that he could do
so after the police concluded their interrogation. Escobedo's
attorney, who was at the police station on another matter,
discovered that Escobedo was in custody. He asked repeatedly to
speak to his client but got the same answer: He could see
Escobedo after the questioning.
While interrogating Escobedo, the police told him that they had
DiGerlando in custody. They asked Escobedo if he would like to
call DiGerlando a liar to his face. Escobedo said he would, and
when the two men met, Escobedo said to DiGerlando: "I didn't
shoot Manuel-yo4 did." This statement placed Escobedo at the
crime scene for the first time or, at the least, showed that he had
knowledge of the crime. As the questioning continued, Escobedo
gave other information that incriminated himself, his sister, and
DiGerlando in the murder of his brother-in-law.
Before his trial, and on appeal, Escobedo asked the court
to suppress all information gathered during the interrogation
without his attorney. The motion was denied, and Escobedo was
convicted of the murder of his brother-in-law.
In February 1963, the Illinois Supreme Court heard Escobedo's
appeal, ruled that the information should not have been allowed as
evidence, and reversed the decision of the lower court. However,
the state appealed for a rehearing. Saying that Escobedo had
given the information voluntarily, the state asked the court to rule in
favor of the prosecution and admit the evidence. The court
agreed.
Escobedo then petitioned the United States Supreme Court to
review the case.
Issue: Was the refusal by police to honor Escobedo's request to
consult with his lawyer a violation of his Sixth Amendment rights?
Held: The U. S. Supreme Court, by a vote of 5-4, said that
Escobedo's rights had been violated. Overturning the ruling of the
state supreme court, it declared that the information was not
admissible as evidence because it had been unlawfully obtained.
Writing for the Court, Justice Arthur Goldberg explained the point
at which a police procedure became "accusatory" instead of
'investigatory:"
... [when] the investigation is no longer a general inquiry
into an unsolved crime but has begun to focus on a
particular subject, ... the police carry out a process of
interrogation that lends itself to eliciting incriminating
statements, the suspect has requested and been denied
an opportunity to consult with his lawyer, and the police
have not effectively warned him of his absolute
constitutional right to remain silent, the accused has
been denied 'the Assistance of Counsel" in violation of
the Sixth Amendment .... [N]o statement elicited by the
police during the interrogation may be used against him
at a criminal trial.
The dissenting justices expressed their serious concerns
that this decision would make it much more difficult for
the police to obtain information and for prosecutors to
gain convictions.
84
85
4.) That the waiver has been given with the assistance of a
counsel.
But with respect to the confession, we still follow the presumption
that people would always easily confess if they are liable or guilty
of it. So that if the confessant or the person investigated would
claim otherwise, it is his burden to prove that the confession was
obtained by reason of vitiated consent, or by force, intimidation,
torture or the like. There is no presumption of torture or any
vitiation of consent even if it were true. The presumption is that,
the police officers are performing their regular function and
torture is not part of their regular function.
Republic Act No. 7438
86
In the absence of any lawyer, no custodial investigation shall be
conducted and the suspected person can only be detained by the
investigating officer in accordance with the provisions of Article 125
of the Revised Penal Code.
Section 4. Penalty Clause. (a) Any arresting public officer or
employee, or any investigating officer, who fails to inform any
person arrested, detained or under custodial investigation of his
right to remain silent and to have competent and independent
counsel preferably of his own choice, shall suffer a fine of Six
thousand pesos (P6,000.00) or a penalty of imprisonment of not
less than eight (8) years but not more than ten (10) years, or both.
The penalty of perpetual absolute disqualification shall also be
imposed upon the investigating officer who has been previously
convicted of a similar offense.
PINOON, LOREVILL
~Owen Feltham
87
88
RIGHT TO BAIL
When Right may be Invoked
Right to bail. It must be understood in relation to Rule 114 of the
Rules on Criminal Procedure because when the Constitution
provides when bail is a matter of right or when it is a matter of
discretion, the basis is when the offense which a person is
charged would carry with it the penalty of Reclusion Perpetua or
higher, bail is a matter of discretion. However, in the Rules of
Court, it provides for certain circumstances which a person in a
criminal case may have bail as a matter of discretion even if the
penalty is less than Reclusion Perpetua, this is when the penalty
is six years and one day to twenty years and there is showing of
the following circumstances such as being a recidivist, habitual
delinquent, that the accused has previously escape, there is
probability of flight a free list or on bail or risk that he would
commit another crime. Rule 114 section 5.
Sec. 5. Bail, when discretionary. XXX
If the penalty imposed by the trial court is imprisonment
exceeding six (6) years, the accused shall be denied bail, or his
bail shall be cancelled upon a showing by the prosecution, with
notice to the accuse, of the following or other similar
circumstances:
(a) That he is a recidivist, quasi-recidivist, or habitual delinquent,
or has committed the crime aggravated by the circumstance of
reiteration;
(b) That he has previously escaped from legal confinement,
evaded sentence, or violated the conditions of his bail without
valid justification;
(c) That he committed the offense while under probation, parole,
or conditional pardon;
(d) That the circumstances of his case indicate the probability of
flight if released on bail; or
(e) That there is undue risk that he may commit another crime
during the pendency of the appeal.
XXX
If a person is not yet charged, can a person put up bail? If he is
under custody he could. What if the accused is already charged
in court but not yet arrested? Can he put up bail? I think the
2.
3.
Now in relation to the court where you have to post bail when
bail is a matter of discretion, you cannot file it anywhere but in the
issuing court. If you want bail to be reduced or want to post
another kind of bail other than cash, it must be applied for in the
issuing court. It is only the issuing court can exercise discretion if
there is a need to exercise discretion if there is none then you
could file it in any of those court mentioned under the rules.
Section 17, Rule 114.
Sec. 17. Bail, where filed. (a) Bail in the amount fixed may
be filed with the court where the case is pending, or in the
absence or unavailability of the judge thereof, with any regional
trial judge, metropolitan trial judge, municipal trial judge, or
municipal circuit trial judge in the province, city or municipality. If
the accused is arrested in a province, city, or municipality other
than where the case is pending, bail may also be filed with any
regional trial court of said place, of if no judge thereof is
available, with any metropolitan trial judge, municipal trial judge,
or municipal circuit trial judge therein.
(b) Where the grant of bail is a matter of discretion, or the
accused seeks to be released on recognizance, the application
may only be filed in the court where the case is pending, whether
on preliminary investigation, trial, or appeal.
89
Now these standards in section 9 are not the hard and fast rule,
they are just guidelines that may be used in determining amount
of bail the court may use any other reason for granting bail.
Lets go to rights during trial. Now, the first of these rights during
trial is your due process in criminal cases. We have said that in
section 14, that is a restatement of the due process right or rule
in criminal cases, not because of anything else but because there
is a need to restate that considering that in our system, an
accused is charged an the entire resources of the government is
against him. Thats why there is a need to restate, to put more
emphasis on that due process clause in criminal cases.
Court of Appeals and when the lawyer received the notice to file
the appellants brief within 20 days, in relation to Rule 124 of our
Rules of Court, the lawyer failed to file the appellants brief
despite 4 extensions sought. The appeal was dismissed on the
ground of failure to prosecute by the Court of Appeals. The
accuseds lawyer filed a motion for reconsideration stating,
among others, that the reason for failure to file the brief was his
own fault considering that he was suffering from some personal
problem on account of an ailment and, on the same motion for
reconsideration, undertook to file the appellants brief within a
period of 7 days. Despite that, he still failed to file the appellants
brief for which reason the motion for reconsideration was denied.
Thereafter, the accused filed an omnibus motion for
reconsideration stating again the reasons for the delay, and this
time raising the ground that based on the Rules of Court, there
must have to be a notice to the appellant. The CA is allowed to
dismiss the appeal motu proprio upon the failure of the appellant
to file the appellants brief but with prior notice to the appellant.
The reason for granting the appellant to give the appellant such
notice is to give the appellant to state the reason for the failure
and for the court to determine whether the reasons are
satisfactory or justified. Can the CA in this particular case motu
proprio dismiss the appeal for failure to file the appellants brief
even without notice to the appellant and if so should this be a
violation of his right to due process? The Supreme Court said in
this case, there is no violation of due process. There is even no
need for notice as may have been required by the rules.
Ordinarily, it is so required in order to give the accused the
reasons for the failure and for the court to appreciate whether
those reasons are satisfactory or justified. But, the facts of the
case would tell us, according to the SC, that accuseds appellant
failed to file appellants brief despite 4 extensions sought and
granted. He even failed to file the undertaking in the motion for
reconsideration filed. Again due process is merely to give an
opportunity to the party to plead his case. The facts of the case
would show that more than sufficient opportunity has been
granted. It also highlights the constitutional discussion on due
process which does not include the right to appeal. As we made
mention, the right to appeal is only included in the Rules of Court
under Rule 115, Section 1(i) with respect to the accused having
this right to appeal. The right to appeal is therefore statutory and
not constitutional with respect to cases or parties where cases
are filed in our system because the due process is satisfied
substantially when the case is heard even in the first instance
that it is filed, tried and decided.
Now, bail is not required when the law does not require any bail
or would allow recognizance. When is recognizance allowed?
Ordinarily, if the person is charged with a violation of ordinance
or of a light felony, the bail to be granted there is merely
recognizance. Under R.A. 7636, when the penalty range does
not exceed 6 months or a fine of not more than P2000.00 or both,
recognizance shall be granted. When the accused has been
incarcerated for a period of at least equal to or more than the
minimum of the principal penalty, without applying the modifying
circumstances, the accused shall be released on recognizance
even if that case shall have to continue. If the accused has
applied for probation and he is not on bail pending the grant of
the application, the accused may be released on recognizance.
Youthful offender under P.D. 603 shall be released on
recognizance. No bail shall be required. And, as we all know
recognizance shall be to place the obligation to a responsible
member of the community to ensure that the accused will be
present every time the case is called and the presence of the
accused is required.
Now, in cash, property or surety as bond, it is quite easy to
understand that in case of violation of the undertaking of the
accused, the cash bond shall be forfeited in favor of the
government as well as the property bond and the surety
company will be liable for the entire amount of bail under his
guaranty. Now, what should happen if the accused is released on
recognizance and the accused does not appear as required by
the court? Will that responsible member of the community be
incarcerated instead until the accused appears? What happens?
OK.
RIGHTS DURING TRIAL
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PRESUMPTION OF INNOCENCE
The next right of the accused is the presumption of innocence.
The presumption of innocence, as the term suggests, is merely a
presumption. It does not create any protection on the part of the
accused that the state cannot in any other way prove his guilt.
The presumption simply gives the state the burden of proving,
first, that the accused has committed the act and that the act
constitutes a crime. When that burden is met, then, the burden of
evidence shifts to the accused. The accused has now the burden
of proving his innocence. The state is not even barred from
legislating a law which would provide for a prima facie
presumption of guilt like your law on anti-fencing. When you are
in possession of a property which was not brought through legal
means, which you know or should have known to have been
stolen, you are supposed to be prima facie liable for fencing.
Now, that law has not been declared as unconstitutional because
what the law creates is merely a prima facie presumption. It does
not destroy the presumption of innocence because presumption
of innocence is also prima facie in effect because the state can
prove that you are not innocent of such crime. The same thing
with the procedure on preliminary investigation or examination,
when a complaint is processed in the investigation level, whether
it be the prosecutor or any other authorized officer. The
determination of that investigating officer as to the guilt is only
prima facie. Meaning, they find probable cause or a well-founded
belief that the accused has committed the offense and therefore
must be held for trial. That does not destroy the presumption
because its only a prima facie finding of liability. The state still
has the burden in the first instance to prove that the accused has
committed the act and that the act is constitutive of a crime and
that the accused must therefore be held liable.
RIGHT TO BE HEARD PERSONALLY OR BY
COUNSEL
This simply means the right to present your evidence. I often
would relate that to my personal experience with Atty. Gil dela
Banda. When we were still in the legal aid office we have this
accused who was charged with possessing and or pushing
marijuana leaves one sack of that. The penalty was death. There
was still death penalty before. Since he was my supervising
lawyer, I was just a new lawyer then. We kept on arguing or
discussing whether or not we should allow the accused to be
heard in person because the accused wanted to say his piece,
saying that if he will be allowed to testify, he will be able to
convince the judge that he did not commit the crime. The usual
thing with the legal aid office before, during our time, when it
comes to drugs or drug related cases, its always the
inadmissibility of the evidence because we were not there, we
would not know what would have happened and while there may
be reason to doubt as to the doing of the police officers, we have
no basis in fact to doubt what they say. So its their word against
the word of the police. But we had difficulty because there were, I
think 4 occasions that we interviewed the accused, some in the
jail, some in the courthouse, switching his story 4 times also. So
we said, ok should we present him or not? You know Sir Gil, hes
a, not that I am not, but he was looking at the moral side of it.
Meaning, if you know that the accused is going to perjure himself,
would you as an officer of the court participate in that actuation?
To allow a witness to state a falsehood and be an instrument in
that falsehood. On the other hand, theres a question of, again,
either legal or moral, what authority do you have as a lawyer to
prevent the accused from taking his constitutional right to be
heard in person simply because you have your opinion that he is
going to tell a lie? So, thats the moral or legal dilemma. Finally,
we said that we will file a motion for leave to file a motion for a
demurrer to evidence and file a demurrer and cross a bridge
when there is a bridge. Because, when you file a demurrer there
is no defense evidence yet. So we did just that and try to put the
question to be answered later hoping that the demurrer will be
granted. The demurrer was granted, and so, we did not cross the
bridge because there was no bridge yet. The short of the long
story is that the accused was killed. You know the Davao Dog
Squad.
Ok, the question is, if the accused had the right to be heard by
himself personally, again, theres that moral or legal question, if
you know that he is going to perjure himself would you put him in
the stand? You ask the question, what made you conclude that
he is going to tell a falsehood? Was his first story the correct
story? The second, the third, the fourth? You can never know
because you were never really there as much as the court was
not there and also the prosecutors. So it leaves him to tell his
story. Objectively, we have known in legal ethics, you take the
case regardless of your opinion as to the innocence or guilt of the
person. At least, thats what the book says. Its different if you tell
the person to tell a lie. But, with your set of questions, the
answers have been different in four occasions. While there may
be suspicion that he is not telling the truth, the question is, which
truth? Your truth or his truth? Or which of those answers really
are true? And which are not? So, that is when he has to claim
his right to be heard.
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DUMANDAN, GAB
ILUSTRISIMO, ROGIE
TORRES, EGAY
Speedy Trial
This includes the right of the parties to a free and impartial court
or tribunal. The impartiality is not only required as a matter of
procedure but the judge must also be impartial for which there is
a corresponding rule in the Rules of Court for mandatory
disqualification of judges by reason of conflicting interests and
the voluntary grounds for their inhibition. There is no mandatory
ground if the judge may still be sought to be refused from hearing
the case on the voluntary ground provision (of the Rules) on the
assumption that judge can no longer be impartial in this case.
The most that is asked with respect to the impartiality during the
conduct of the trial is the behavior of Judges in relation to the
proceedings. Ideally, though (the one) presiding in the conduct of
the hearing must have to be an innocent bystander with respect
to the respective claims of the parties, nonetheless, the judge is
not also prohibited from asking clarificatory questions in order
that he may be clarified as to certain matters. But the line dividing
what is clarificatory and what is helping the cause of one party is
very thin; this is where most motions to refuse answer
because of the assumption or the notion that the judge asking
questions are actually helping a party in his cause or defense.
The right to speedy trial is given to the accused and it is
characterized as a trial that is (free) from any capricious/
unauthorized delay. This characterization however is not subject
to hard and fast rule. There is no definite set of rules even if the
right to speedy trial act has been incorporated in the Rules of
Court. We are aware that there is a law, the right of speedy trial
act, and there is an allowable number of days for the time of
filing, from the time of arraignment and from the time of the
prosecution to present evidence and defense (vice versa)
including the full presentation of respective rebuttal and answer
to rebuttal by the parties. The case is thereafter submitted for
decision. The Rules of Court as well as the law itself have been
interpreted by the court to allow reasonable and justifiable
delays. In the case of Olbes vs. Buemio, 607 SCRA 336, there
was a total of 253 days from the time the accused was
arraignedor a lapse of 105 days and from the first pre-trial to
the actual trial conducted there was a lapse of 148 days, a total
of 253 days delayed. The claim of the accused (was ) that there
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Public Trial
The Right to Public Trial is not to be understood to (apply to)
everybody i.e. the public to observe the conduct of the trial.
97
VIATORY RIGHTS
The right of the accused to meet the witnesses face to face
would include the right to cross-examine them. It has a two-fold
purpose : 1. to test the credibility of the witness ; 2. to observe
the demeanor of the witness when testifying, this is based on the
principle that the evidence to be credible must not only be
credible in itself but must also come from a credible witness. So
in order to test the credibility of the witness the accused must
have the right to cross examine. Of course, there are some
exceptions. One, from dying declarations. Also during preliminary
investigation stage. We all know that even if there should be a
clarificatory hearing required by the investigating officer to be
conducted, the parties do not have the right to cross examine the
other witness. During preliminary conference/investigation, if
there are matters which they wish to ask ot the other party on the
matter under investigation, the question must have to be
coursed through a hearing officer or prosecutor. He cant be
asked directly because there is no right to cross-examine the
witnesses of the respondent.
Right to Secure the Attendance of Witnesses
subpoena
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4.)
Right to speedy discharge in relation to right to counsel
is the same. It would still remain.
5.)
Right to speedy, impartial public trial. That would, with
respect to impartial public trial they would technically not be
affected. With respect to speedy trial, there may be some effects
though it does not give the State the right or license to delay the
proceedings for the trial. Then they must have to conduct trial
consistent with the demands of speedy trial taking into
consideration the fact of course that the accused has jumped bail
or has escaped from prison.
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which if the matter or the mechanical act would require the use
of ones intelligence, the use of ones mind or brain, then it does
not become a purely mechanical act.
The most common example is handwriting. When the issue in the
criminal case involves handwriting, say falsification, it requires
the signature, of course, you only falsify a signature. Forgery in
our Revised Penal Code refers to bank notes, you make one and
make it appear as if it were a valid bank notes. You do not forge
a signature. But outside of law school i-forge na bai, i-forge na
bai. Sige i-forge nalang. But it is actually falsification. You make it
appear in Articles 171 and 172 of RPC that the person
participated in the making of an act when in fact that should not
have been done.
So when the issue in the criminal case is falsification whether a
signature or a writing and the accused is made to copy certain
words and phrases to prove that his handwriting is similar to that
in the questioned document. The Supreme Court has said that is
not a purely mechanical act because to copy a writing with his
own handwriting would require him to use his intelligence or use
of his brain.
So it would go with an act that an accused is required to by the
police officers to reenact a crime. In reenactment, if the person is
compelled, again there must be compulsion, to reenact a crime
then it may be covered by the privilege because the accused will
have the right to refuse to answer the question requiring him to
reenact the commission of the offense. Because if he really did
the act or crime, that he would have to recall what he had done
with the use of his intelligence or his brain or his mind and it is
not a purely mechanical act.
The problem however with this privilege against self-incrimination
although it is applicable to any person, in any proceedings
regardless of whether it is civil or criminal or administrative,
whether the person is the accused or party defendant maybe or
an ordinary witness is that this right is waivable immediately upon
the fact that the question is answered. Unlike in say, rights under
investigation even if you answered right then and there, even if
you said I do not need a lawyer, but if such waiver is not valid in
law you can still ask for its exclusion when it is presented in
evidence.
But in the privilege against self-incrimination, to refuse to answer
under a claim of the privilege of an incriminating question, it must
have to be raised before the question is answered. Once the
question is answered, it is automatically. You can not say Oopps!
Mali ako. Can I have it stricken off the record? In fact it can not
be done because you must have to claim it before it is answered.
That is why we said the difference between the privilege and the
right under Section 12 is that, in Section 12 you can have it
excluded later. And in Section 17 you can not. You must refuse
to answer by claiming the privilege. Also in section 12, if there is
a lawyer assisting you, the lawyer may very well that if it is the
investigation is conducted he may very well protect your rights by
preventing you from answering the question because there is a
lawyer assisting the confessant during an investigation.
But in section 17, let us say, as made mention yesterday, if you
were to make an investigation in the company level and the
employee was not assisted by a counsel, he may not know of his
privilege against self-incrimination. He may be answering these
questions subjecting himself not only by answering administrative
liability on account of his employment or by violation of company
rules and policy but he may open himself up to a criminal liability.
So, for example, a cashier in a private company has been
charged administratively of a violation of a fact that he has taken
some money she has received in trust for the company and this
was for cashiers violation of companys rules and violation
against taking company property and when it is considering it
may result to dismissal even if it were committed as a first
offense based on companys rules.
Now if the cashier answers that question: did you take that?
Yes. Do you admit how much money? Yes. And used it for your
own benefit? The cashier may not only be liable administratively,
the cashier can be dismissed from employment and he can also
be subjected to a criminal liability. And the claim that he was not
afforded his Miranda warnings during that administrative
investigation will not prevent the filing of the criminal case nor the
admission of his testimony during that administrative proceeding
because he was not actually investigated for a commission of an
offense but for a commission of an act in violation of a company
rule.
IMMUNITIES
The final item would be the so-called immunities. In your outline,
there are two immunities stated. They are USE IMMUNITY and
TRANSACTIONAL IMMUNITY. There are situations where a
person maybe compelled to testify and by reason of his
compulsion to testify, his right against self-incrimination maybe
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102
Motion on May 8, 2008, which was four (4) months after the finality
of the resolution dismissing the appeal.
Having been afforded the opportunity to seek reconsideration and
setting aside of the motu proprio dismissal by the CA of his appeal
for non-filing of the appeal brief, and with his subsequent inaction
to have his appeal reinstated after the denial of his motion for
reconsideration, petitioner cannot impute error or grave abuse on
the CA in upholding the finality of its dismissal order. Noncompliance with the requirement of notice or show cause order
before the motu proprio dismissal under Section 8, paragraph 1 of
Rule 124 had thereby been cured. Under the circumstances, the
petitioner was properly declared to have abandoned his appeal for
failing to diligently prosecute the same.
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The Constitution mandates that all cases or matters filed before all
lower courts shall be decided or resolved within 90 days from the
time the case is submitted for decision. Judges are enjoined to
dispose of the courts business promptly and expeditiously and to
decide cases within the period fixed by law. Failure to comply with
the mandated period constitutes a serious violation of the
constitutional right of the parties to a speedy disposition of their
cases a lapse that undermines the peoples faith and confidence
in the judiciary, lowers its standards and brings it to disrepute. This
constitutional policy is reiterated in Rule 3.05, Canon 3 of the Code
of Judicial Conduct which requires a judge to dispose of the courts
business promptly and decide cases within the required periods.
In the present case, the subject cases had been submitted for
decision since October 12, 2005. As correctly pointed out by the
OCA, while the respondent judge attributed his failure to render a
decision to the heavy caseload in his sala, he did not ask for an
extension of time to decide the cases. This failure to decide within
the required period, given that he could have asked for an
extension, is inexcusable; it constitutes neglect of duty as well as
gross inefficiency that collectively warrant administrative sanction.
Unlike speedy trial, if there is a valid claim and the grant is also
valid and justified, it will be put to a stop to the criminal
prosecution. It means that the Court will grant the right of the
accused to speedy trial, will dismiss the case, and the dismissal
is always with prejudice. It would be considered as an
adjudication of the merits, and the accused is thereby freed. But
if all the evidences are in, the trial has already been terminated
and the only reason why there is no disposition yet is because
the court has failed to resolve the case by failing to render a
decision or failing in to render a resolution on the motion for
reconsideration on account of a motion for reconsideration filed.
This will not mean that if the right to speedy disposition of cases
is claimed that that court will consider the case dismissed.
The only situation, as you may have noticed in all these cases on
the speedy disposition of the cases you may have read, that will
result in the dismissal of the charges is when it is still on
reinvestigation stage.
Take for example the old case of TATAD VERSUS
SANDIGANBAYAN. When Tatad was investigated it took eleven
years for the investigation to be completed. And so when Tatad
asked for dismissal, the Sandiganbayan refused. However, the
Supreme Court granted the petition, and it caused the dismissal
of the case because there is no justifiable reason why the
investigation by the investigating officer would determine whether
there is probable cause or well founded belief to charge
KINTANAR, LOVELY
LIMBO-CABUHAT, VERNA
DINIAY, DONNI
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would show that the penalty imposable under the said law was
placed there to compel, to make good the payment of the check,
the check being paid for an outstanding obligation. The fact that
the issuance of check was attended by fraud takes it away from
the protection of non-payment or non-imprisonment for nonpayment of civil debts and obligations because that would
substantively change the nature of the violation of a mere civil
obligation to one which would be criminal in character. As have
been discussed therein the Supreme Court said that the
gravamen of the offense is the introduction into the economy or
in circulation checks which are valueless or which would bounce
or without which could not have been cashed upon presentment
or when it is presented for payment when it is due and
demandable. So it is not simply by reason of non-payment of a
debt.
Lozano vs. Martinez (Dec. 18, 1986)
Facts: A motion to quash the charge against the petitioners for
violation of the BP 22 was made, contending that no offense was
committed, as the statute is unconstitutional. Such motion was
denied by the RTC. The petitioners thus elevate the case to the
Supreme Court for relief. The Solicitor General, commented that it
was premature for the accused to elevate to the Supreme Court
the orders denying their motions to quash. However, the Supreme
Court finds it justifiable to intervene for the review of lower court's
denial of a motion to quash.
Issue: Whether BP 22 transgresses the constitutional inhibition
against imprisonment for debt.
Held: The offense punished by BP 22 is the act of making and
issuing a worthless check or a check that is dishonored upon its
presentation for payment. It is not the non-payment of an obligation
which the law punishes. The law is not intended or designed to
coerce a debtor to pay his debt. The thrust of the law is to prohibit,
under pain of penal sanctions, the making of worthless checks and
putting them in circulation.
take note of the term - contractual debts
So is the same reason for the subsidiary imprisonment for nonpayment of a fine. Under the Revised Penal Code the judgment
imposed of penalizing the accused to pay a fine and if such fine
may not be paid, subsidiary imprisonment may be imposed. That
is not a violation of this Section 20 because the payment of a fine
is not a payment of a contractual debt. It is supposed to be a
form of a penalty which if not paid can make the accused convict
subjected to subsidiary imprisonment.
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Section 18.
xxx
No involuntary servitude in any form shall exist except as a
punishment for a crime whereof the party shall have been duly
convicted.
The first there is under Section 18 (2) that would be involuntary
servitude. We all understand that involuntary servitude is allowed
only when it is so provided for in the Constitution or by law. And
these would cover only involuntary servitude based upon a lawful
order of the court. The other is when there is involuntary
servitude in the sense or in the form of compulsory military or civil
training with respect to defense of the State. When we discussed
the freedom of religion we discussed that matter of conscientious
objector, a person by reason of his freedom of conscience or
thought or religion may object to such form of compulsory military
service because this is disallowed by his religion. But
nonetheless that is a form of an involuntary service that the
Constitution would allow.
Now similar with non-imprisonment for non-payment of debt, this
involuntary servitude was based on the anti-slavery provision in
the American Constitution under its Thirteenth Amendment. The
13th Amendment of the US Constitution prohibits or punished
acts of slavery. This technically ended the slavery period as
practiced in the American jurisdiction. However when as mention
if it is by reason of punishment for a crime upon a lawful order of
the court where the accused has been duly convicted there may
be a form of involuntary servitude. And when one is under
detention to serve the sentence this form of forced labor, the
chained gangs during the days of slavery have been reaming as
rehabilitation. So when prisoners are compelled to perform work,
they are not actually forced to work but are actually rehabilitated.
This is part of their rehabilitation in order to make them ready for
their future reintegration into the society.
Now the early cases on domestic service which are the usual
form of involuntary servitude are before the enactment of the
Labor Code and its amendment particularly on the rights and
benefits or privileges of helpers or house helpers. The common
practice is that these house helpers if they would still have some
debt from their employers they are made to work continuously
until their debts are paid. Under the Labor Code now as
amended in relation to the rights of house helpers that are not
supposed to be allowable. If the employer still has money claim
against the house helper or employee then the employee cannot
be forced to continue working because that is a form of
involuntary servitude.
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In a later case, the SC, the case of People vs. Yorac, the SC did
not apply the supervening fact doctrine because the victim was
mauled and he was hit in different parts of his body including his
head but the initial medical examination showed that his injuries
will heal or there is only a 10-day period for him to heal or to be
out of his regular confinement(?) for which he was only charged
with slight physical injuries. Not more than 10 days, slight
physical injuries. The accused upon arraignment has pleaded
guilty and was sentenced accordingly. However, when the victim
was still in the hospital had undergone another medical
examination. And found that under the second medical
examination that the victim was actually suffering from or has
suffered from severe head concussion which if not attended may
result to his death. There was actually a crack which was not
seen before when he underwent his first medical examination. So
they filed this time another case for frustrated murder and the SC
said that this is not a supervening fact. The injury was there
before, however, it was not discovered and so the
2.
Second exception now has been provided for by the
rules, the facts constituting the graver offense became known or
were discovered only after the filing of the former information.
I think that they put it in a very simple term that there is a filing of
a former information. It should have been that after the first
jeopardy could have attached. Filing an information and there
must have to be arraignment at least of the accused. At the very
least. Just the same when it could not be a supervening fact, the
fact constituting graver offense was discovered or was made
known to him only after the first information.
3.
When there is an invalid plea of guilt to a lesser
offense.
PEOPLE VS. YORAC (1971)
Rodrigo Yorac was prosecuted for frustrated murder arising
allegedly from having assaulted, attacked, and hit with a piece of
wood the offended party, for which he had been previously tried
and sentenced for slight physical injuries, his plea being one of
guilt. The later information for frustrated murder was based on a
second medical certificate after the lapse of one week from the
former previously given by the same physician who, apparently,
was much more thorough the second time, to the effect that the
victim did suffer a greater injury than was at first ascertained. The
lower court, considering that there was no, supervening fact that
would negate the defense of double jeopardy, sustained the
motion to quash.
Issue: Whether the defendant, who had already been convicted of
slight physical injuries before the City Court of Bacolod for injuries
inflicted upon Lam Hock, and had served sentence therefore, may
be prosecuted anew for frustrated murder for the same act
committed against the same person.
Held: If after the first prosecution a new fact supervenes on which
defendant may be held liable, resulting in altering the character of
the crime and giving rise to a new and distinct offense, the
accused cannot be said to be in second jeopardy if indicted for the
new offense.
We attribute the new finding of fracture, which evidently
lengthened the period of healing of the wound, to the very
superficial and inconclusive examination made on December 10,
1956. Had an X-ray examination been taken at the time, the
fracture would have certainly been disclosed. The wound causing
the delay in healing was already in existence at the time of the first
examination, but said delay was, caused by the very superficial
examination then made. As we have stated, we find therefore that
no supervening fact had occurred which justifies the application of
the rule in the case of Melo vs. People and People vs. Manolong
111
Then the final items here in your outline would be the privilege of
the writ of habeas corpus. The writ of habeas corpus as we have
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114
It bears reiteration that like the writ of amparo, habeas data was
conceived as a response, given the lack of effective and available
remedies, to address the extraordinary rise in the number of
killings and enforced disappearances. Its intent is to address
violations of or threats to the rights to life, liberty or security as a
remedy independently from those provided under prevailing Rules.
Now, both the Writ of Amparo and the Writ of Habeas Data, as
discussed in this case of Manila Electric Company versus
Rosario Gopez Lim, 632 SCRA 195 (2010), are both based on a
reaction of the court to so-called extra-legal killing and enforced
disappearances or threats thereof.
Manila Electric Company case does not actually say what are the
matters actually covered, like the Writ of Habeas Data, unlike in
the case of Tapuz vs. del Rosario and this case of Secretary vs.
Manalo (568 SCRA 1), the Supreme Court was able to explain
what the so-called Writ of Amparo should or would lie on.
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and a secure quality of life, live not in fear that this person may
be unreasonably violated by a powerful ruler, but a life lived with
the assurance that the Government he established and
consented to will protect the security of this person.
And it goes to tell that it includes therefore the right to be
protected or secure in your whole person and in your limbs and in
your parts of your body there will be nothing that should harm,
much more that will cause your death, because again it is a
reaction against extra-legal killings.
Right to liberty. According to the Supreme Court, citing the
case of City of Manila vs. Honorable Judge Laguio, includes the
right to live and the right to be free from arbitrary restraint or
servitude, not limited to freedom from physical restraint of a
person or citizen, but is deemed to embrace the right to
command and the right to enjoy the liberties in which he has
been endowed by his creator, subject only to such restraint as
may be necessary for common welfare.
For him to defeat the Writ of Habeas Corpus, they can simply
reason with the court that the person supposedly detained is not
detained by them.
The issue in this Petition under Rule 45 seeking the reversal of the
Decision of the RTC of Manila is the validity of Ordinance No. 7783
of the City of Manila.
The Ordinance disallows the operation of sauna parlors, massage
parlors, karaoke bars, beerhouses, night clubs, day clubs, super
clubs, discotheques, cabarets, dance halls, motels and inns in the
Ermita-Malate area. In Section 3 thereof, owners and/or operators
of the enumerated establishments are given three (3) months from
the date of approval of the Ordinance within which to wind up
business operations or to transfer to any place outside the ErmitaMalate area or convert said businesses to other kinds of business
allowable within the area. Further, it states in Section 4 that in
cases of subsequent violations of the provisions of the Ordinance,
the premises of the erring establishment shall be closed and
padlocked permanently.
It is readily apparent that the means employed by the Ordinance
for the achievement of its purposes, the governmental interference
itself, infringes on the constitutional guarantees of a persons
fundamental right to liberty and property.
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In the Writ of Amparo, it goes right beyond that because the right
of security includes a guarantee that the State will protect you.
The Writ of Amparo requires the respondent not simply to show
reason why the writ is defeated or it to be dismissed, but to show
to the courts what steps or actions were taken by the, to
ascertain what happened to this person, what is the fate of this
person supposedly subject of the Writ of Amparo.
It is not enough for them to just to state that these persons are
not in their custody, or they were not responsible for their arrest
but there must have been steps taken by them once the report or
demand be made by those who filed the petition for the persons
who disappeared to show to the court what actions or steps were
taken by them to ascertain the whereabouts and fate.
It goes beyond the usual coverage or command or directive of
Habeas Corpus.
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some would turn up dead, some would turn up, well not to be
found at all.
Just like yesterday, there was this supposed suspect in the killing
of that gym instructor. And supposedly that suspect fought it out
with the police, that is why he died. Common sense would dictate
that that is not easily acceptable, if you only knew where that
killing happened. It was in that Panganiban St. if youre familiar
with that. Its that small alley, its a road actually, perpendicular to
both Torres and Mapa, where only one vehicle can pass at a time
or if two, they must have to be very careful so that their sidemirrors would not hit each other. And with the number of polices
officers which supposedly had to shoot down, its a house or a
shanty actually, would you expect that the suspect would fight it
out with the police officers?
So this is part of, perhaps, with by reason of the practices of
these state agents and where information is gathered, stored and
collected and thereafter stored on some individuals which will
meet the definition of the state, that you have a right, this is the
ruling
in
the
case
of
Manila
Electric Company, the Supreme Court said this is the sign to
protect by means of judicial complaint, the image, privacy, honor,
information and freedom of information of an individual. It is
meant to provide a forum to enforce ones right to the truth and to
informational privacy.
Thus safeguarding the constitutional guarantee of a persons
right to life, regarding liberty and security against abuse in this
age of information or technology.
In the Writ of Habeas Data Rule, if a complaint is filed, and the
court finds the petition to be sufficient and duly proven in the
course of time, the court can direct these persons who are
responsible for collecting, storing and gathering and storing these
data to:
1.
2.
The court can do that. But who are the persons tasked with
gathering, collecting or storing data? Nobody would admit that.
We have filed a case here, involving some lawyers who were
supposed to have been in the list of, in the order of battle(?) of
the military. The problem is nobody would admit that there is
such a order of battle.The military officers simply argued before
the court, No we dont have any recording. Do you store or
gather data, No we dont. So what is there to erase or what is
there to correct? So that petition was dismissed. We filed a
MANILA
ELECTRIC COMPANY, ALEXANDER S. DEYTO
and RUBEN A. SAPITULA vs. ROSARIO GOPEZ LIM, (G.R. No.
184769, October 5, 2010)
ISSUE: May an employee invoke the remedies available under
such writ where an employer decides to transfer her workplace on
the basis of copies of an anonymous letter posted therein
imputing to her disloyalty to the company and calling for her to
leave, which imputation it investigated but fails to inform her of the
details thereof?
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