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“Political Law and Commercial

Law Bar Questions”

A Term Paper
Presented to
Manuel L Quezon University
Quiapo, Manila

In Partial Fulfillment
of the Requirements for
“Legal Research”

Submitted By:

Ms. Elizabeth Jacinto Abu


Ms. Kae Balboa
Mr. Artchie Jay Viloria
Ms. Cresel Orolfo
Ms. Rosie Azcarraga

Submitted To:

Atty. Calderon

October 2004

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POLITICAL LAW BAR QUESTION 1998

Q -- The law creating the PAGCOR, P.D. 1869 and regulating and centralizing
the operation and control of all games of chance was questioned as
unconstitutional because it legalized gambling while other forms of industries
or ceilings are outlawed. Is the contention valid? Why?

ANS: No. Police power can regulate gambling. The mere fact that gambling activities
like cockfighting and horse racing are legalized while others are not, does not
render the decree unconstitutional. Equal protection clause does not prohibit the
legislature from establishing classes of industries or objects upon which different
rules shall operate. The constitution does not require situation which are different
in fact or opinion to be treated in law as though they are the same. (Basco, et al.
vs. PAGCOR, G.R. No. 91649, May 14, 1991)

Q– The City of Manila enacted an ordinances prohibiting aliens from being


employees and engaging in any occupation or business, whether permanent
or temporary or casual, without first securing permits. Respondent
challenged the validity of the ordinances for being violative of due process
and equal protection clause of the Constitution and the rule of uniformity in
taxation. The mayor argued that the ordinance was not a tax measure but a
regulatory measure.

ANS: Requiring the payment of fifty pesos as fee makes the ordinance a tax measure,
not a regulatory measure. If it were a regulatory measure, there is no logic in
exacting the payment of fifty pesos from aliens who have already secured a
clearance for employment. The fee is unreasonable because it is excessive and it
fails to consider substantial differences in the situation of the aliens required to
pay it. The same amount is collected from every alien, whether he is casual or
permanent, part time to full time, a lowly employee or a highly paid executive.
The ordinance is also void because it does not contain any standard to guide the
issuance of permits. Requiring the permit from the mayor who may withhold or
refuse it at will is tantamount to denial of the right of the people to engage in a
means of livelihood. (Villegas vs. Hui Chiong Tsai Pao Ho, 86 SCRA 270).

Q– Petitioner challenged the constitutionality of the lawyer which prohibited


voters in highly urbanized cities from participating in provincial elections;
for violating equal protection clause, as the basis for the classification of the
highly urbanized cities was their annual income, for imposing a substantial
requirement on the exercise of suffrage and for gerrymandering.

ANS: Corollary to the independence of highly urbanized cities from provinces is the
loss of their right to participate in the elections of provincial officials, since
provincial officials have ceased to exercise any authority over highly urbanized
cities on the basis of income is based on substantial distinctions. Revenue shows
whether a city is capable of existence as an independent unit. The argument that
the probation imposes a substantial requirement on the exercise of suffrage in
violation of the Constitution contemplates requirement such as the payment of
poll tax. The charge of gerrymandering has no basis. Gerrymandering involves
apportionment of representative districts. The law in question does not apportion
any representative districts. (Ceniza vs. Commission on Elections, 95 SCRA 763)

Q. – X, a practicing lawyer, challenged the Constitutionality of the law, which


based the income tax of salaried employees on gross income, on the ground
that it violated equal protection, due process, and the rule of uniformity of
taxation, since he would be paying higher income tax.

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ANS: Inequalities which results from singling out one particular class of taxation or
exemption infringe no constitutional limitation. The rule of uniformity does not
call for perfect uniformity. This requirement is met if the tax operates with the
same force and effect in every place where the subject may be found. Petitioner
failed to take into the consideration the distinction between a tax rate and the tax
base. There is no legal objection to a broader tax base or taxable income by
eliminating all deductible income and reducing the applicable tax rate. Taxpayers
may be classified in to different categories. It is enough that the classification rest
upon the substantial distinctions that make the differences. In the case of the
taxpayers who receives salaries, there is no overhead expense. In the case of
professionals and businessmen, there is no uniformity in the cost and expenses
necessary to produce their income. There is ample justification for the law than to
adopt the gross system of taxation for compensation employees while continuing
the system of net income taxation as regards professionals and business income.
(Sison vs. Ancheta, 130 Scra 654)

Q -- May a person who is charged of selling shabu be convicted of possession of


the same contained in a canister allegedly seized at his house? Why?

ANS: No, because sale is totally different from possession. Accused cannot be convicted
of a crime which is not charged in the information, for to so would deny him the
due process of law. (People vs. Del Rosario, 53 SCAD 359, G.R. No. 109633,
July 20, 1994, citing People vs. Despavallador, 1 SCRA 205 (1961); People vs.
Mori, 55 SCRA 382 [1974]).

Q -- State the constitutional guarantee on the right of the people against


unreasonable searches and seizures.

ANS; The Constitution provides that the right of the people to be secure in their persons,
houses, papers, and effects against unreasonable searches and seizures of
whatever nature and for every purpose shall be inviolable, and no search warrant
of arrest shall issue except upon probable cause to be determined personally by
the judge after examination after oath or affirmation of the complaint and the
witnesses he may produce, and particularly describing the place to be searched
and the persons or things to be seized. ( Art III, Sec.2, Constitution).

Q -- What is a “scatter – shot warrant?” Is it valid?

ANS: A “scatter – shot warrant” is a search warrant issued for more than one (1)
specific offense, like violation of P.D. No. 1866 and RA 1700. Is is void because it
violates the constitutional requirement that there must be a particularity of the
things to be seized and, persons and places to be searched. ( Leon Tambasen vs.
People, et al., 62 SCAD 679, G.R. No. 89103, July 14, 1995).

Q– What is the basis of the power to search? Is its exercise absolute? Explain.

ANS: It is based on public policy. However, in Tambasen vs. People, et al., 62 SCAD
679, G.R. No. 89103, July 14, 1995, it was said that although public welfare is the
foundation of the power to search and seize, such power must be exercised and
the law enforced without transgressing the constitutional rights of the citizens.

Q -- When may there be search without warrant?

ANS: Search may be made without warrant under the following cases:

(1) In times of war and within the area of military operation.

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(2) As an incident of a lawful arrest, subject to the following requisites:

a) the arrest must be lawful

b) the arrest and seizure must be contemporaneous with arrest;

c) the search must be within permissible areas of search.

(3) when there are prohibited articles open to eye and hand.

(4) when there is consent, subject to the following requisites:

a) there is a right;

b) there must be knowledge of the existence of such right;

c) there must be intention to waive.

(5) when it is an incident of inspection.

Q– What is meant by probable cause?

ANS: Probable cause is defined as such facts and circumstances which lead a reasonably
discreet and prudent man to believe that an offense has been committed and that
the subjects sought in connection with the offenses are in the place sought to be
searched. (20th Century Fox Film Corp vs. CA, G.R. No. 76649-51, Aug. 19,
1988)

Q– Who has the power to determine the existence of a probable cause for the
issuance of search warrant?

ANS: The determination of probable cause is the function of the judge. It is not for the
prosecutor to determine. Only the judge and the judge alone makes this
determination. (People vs. Hon. Enrique Inting, et al., G.R. No. 88919, July 25,
1990).

Q– Information were filed against the accused owing to the killing of Cong.
Moises Espinosa and others in Masbate. The Supreme Court resolved to
effect a change of venue from Masbate to Makati, to avoid miscarriage of
justice. Judge Felix of Makati issued warrant of arrest without bail by simply
relying on the prosecution’s certification and recommendation that a
probable cause exists. This was done prior to the records of preliminary
investigation to Makati. Whether the judge could issue warrant of arrest
under the circumstances, was the issue. Decide.

ANS: Under Art III, Sec. 2 of the Constitution, no warrant of arrest shall issue except
upon probable cause to be determined personally by the judge after the
examination under oath or affirmation of the complainant and the witnesses he
may produce. What the constitution underscores is the exclusive and the personal
responsibility of the issuing judge to satisfy himself of the existence of the
probable cause. The judge is not required to personally examine the complainant
and witnesses. Following established the doctrine and procedure, he shall: (1)
personally evaluate the report and the supporting documents submitted by the
fiscal regarding the existence of probable cause, and on the basis thereof, issue a
warrant of arrest; or (2) if on the basis thereof, he finds no probable cause, he may
disregard the fiscal’s report and require the submission of supporting affidavits of
witnesses to aid him in arriving at a conclusion as to the existence of probable
cause.

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Sound policy dictates this procedure, otherwise judges would be unduly
laden with preliminary examinations and investigations of criminal complaints
instead of contracting on hearing and deciding cases filed before their courts.
(Lim vs. Hon. Nemesio Felix, G.R. No. 94054, Feb. 19, 1991)

Q– Is the preliminary inquiry by the fiscal or prosecutor binding upon the judge
in the determination of probable cause for the issuance of a warrant of
arrest? Why?

ANS: No. The preliminary inquiry made by a prosecutor does not bind the judge. It
merely assists him to make the determination of probable cause. The prosecutor’s
certification of probable cause by itself is ineffectual. It is the report, affidavits,
the transcripts of stenographic notes and all other supporting document behind the
prosecutor’s certification which are material in assisting the judge to make his
determination.

If a judge relies solely on the certification of the prosecutor, he or she not


personally determined probable cause. The determination is made by the fiscal.
The constitutional requirement is not satisfied. The judge comments grave abuse
of discretion regarding the existence of probable cause. (Lim vs. Felix, G.R. No.
94054, Feb. 19, 1991).

Q -- If the judge does not feel bound by the certification by the fiscal, what should
he do?

ANS: The judge should call for the complainant and the witnesses to answer the court’s
probing questions when the circumstances so require. In this case, he must go
beyond the fiscal’s certification. (Lim vs. Felix, supra).

Q -- What is the purpose of the safeguard against warrantless arrest? Explain.

ANS: The constitutional provision against warrantless arrest is a safeguard against


wanton and unreasonable invasion of the privacy and liberty of a citizen as to be
secure against an unreasonable seizure of his body and any deprivation of his
liberty is a most basic and fundamental one. A statute, or rule or situation which
allows exception to the requirement of a warrant of arrest or search warrant must
be strictly construed. We cannot liberally consider arrest or seizures without
warrant or extend their application beyond the cases specifically provided or
allow by law. To do so would infringe upon personal liberty and set back a basic
right so often violated and yet, so deserving of full protection and vindication.
(People vs. Lambijon, et al., G.R. No. 89543, Nov. 13, 1992).

Q– May the POEA or Secretary of Labor issue warrant of search and seizure?
Why?

ANS: No, because only a judge can do so. Section 38 of the Labor Code which
authorized the Secretary of Labor or the POEA administrator to issue search
warrant is void and unconstitutional. (Salazar vs. Achacoso, et al., G.R. No.
81510, March 14, 1990)

Q– The acts of the military and the police of conducting saturation drives in
some areas were some questioned as they resorted to forcibly extracting
things from the stomach of those subject to saturation drive. Rule on the
validity of such acts.

ANS: The acts offend even hardened sensibilities. The methods are too close to the rack
and screw to permit of constitutional differentiation. But the individual’s right to

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immunity from such invasion of his body is considered as far overweighed by the
value of its deterrent effect to be avoided by the police action. (Guanzon vs. De
Villa, G.R. No. 80508, Jan. 30, 1990)

Q– The police saw two (2) suspiciously-moving persons at dawn, hence, they stop
them. They were carrying bags. When they were stopped they ran, and when
apprehended, a revolver was found in one (1) bag. Charged with illegal
possession of firearms, they contended that the search was void. Rule on the
contention.

ANS: The search without warrant was valid. Stop and frisk situation is valid and search
on that occasion even without warrant is valid. Frisking them was merely a
precautionary measure for the protection of the police officers. It is too much to
require the police officer to obtain a search warrant for that purpose, otherwise the
exercise will be prove futile, useless and too late. In this case, the probable cause
is when the accused acted suspiciously and attempted to flee with the buri bag,
there was probable cause that they were concealing something illegal and it was
the right and duty of the police officers to inspect it. (People vs. Posadas, 188
SCRA 288)

Q– What could be the reason behind the validity of the act of the police officer in
conducting frisk and search on the suspect and arresting him without
warrant if found illegally possessing a gun? Explain.

ANS: The frisk and search of appellant’s person upon his arrest was a permissible
precautionary measure of arresting officers to protect themselves, for the person
who is about to be arrested may be armed and might attack them unless he was
first disarmed. In Adams vs. Williams, 47 U.S. 143, it was ruled that “the
individual being arrested may be frisked for concealed weapons that may be use
against the arresting officer and all unlawful articles found in this person, or
within his immediate control may be seized. (People vs Gabriel Gerente, G.R. No.
95847-48, March 10, 1993).

Q– The policeman arrested Gerente only some three (3) hours after Gernte and
his companion had killed Blace. They saw Blace died in the hospital and
when they inspected the scene of the crime, they found the instrument of
death: a piece of wood and a concrete hollow block which the killers had used
to bludgeon him to death. The eyewitness, Edwina Reyes, reported the
happening to the policemen and pinpointed her neighbor, Gerente, as one of
the killers. He was arrested without warrant. Was the arrest valid? Why?

ANS: Yes, since the policemen had personal knowledge of the circumstances, of the
violent death of Blace and of facts indicating that Gerente and two others had
killed him. Before they could obtain a warrant, he would have fled the law as his
own companions did. (People vs. Gerente, G.R. No. 95847-48, March 10, 1993)

In Umil vs. Ramos, 187 SCRA 311, the arrest of the accused without
warrant was effected one (1) day after he had shot to death two CapCom soldiers.
The arrest was held lawful by the Court upon the rationale stated in People vs.
Malasugui, 63 Phil. 221, 228, thus:

“To hold that no criminal can, in any case be arrested and searched for te
evidence and tokens of his crime without a warrant, would be to leave society to a
large extent, at the mercy of the shrewdest, the most expert, and the most
depraved of criminals, facilitating their escape in many instances.”

Q– X was one of 22 aliens suspected to be pedophiles, who were apprehended in

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Pagsanjan Laguna by virtue of a mission order by the CID. He was found
with two (2) young boys. Seized from him were photograph of young children
in sexual acts. There were also posters of advertising child prostitution in the
Philippines confiscated from him. Deportation proceedings were filed against
him and subsequently, warrant was issued for his arrest. He challenged the
issuance of the warrant, that only a judge can issue a warrant of arrest. Rule
on X”s contention.

ANS: The arrest is valid. Although pedophilia is not a crime, it could be a subject of a
warrantless arrest if committed under the circumstances specified in Rule 113,
Section 5 of the Rules of Court which provides:

“A peace officer or a private person, may without a warrant, arrest a


person;

a) when in his presence, the person has committed, is actually committing, or is


attempting to commit an offense;

b) when the offense has in fact just been committed, and he has personal
knowledge of facts indicating that the person to be arrested has committed it;
and
c) when the person to be arrested is a prisoner who has escaped from penal
institution or place where he is serving final judgment or temporarily confined
while his case is pending, or has escaped while being transferred from one
confinement to another.”

It is also contrary to the constitutional policy in Article II, Section 13 of


the Constitution which seeks to protect the moral and spiritual well-being of the
youth. CID agents had reasonable ground to believe the commission of the act of
pedophilia. CID can order the arrest of aliens whose stay in the Philippines is in
violation of any conditions under which they were admitted. There was
surveillance and probable cause. (Harvey vs. Santiago, G.R. No. 82544, June 28,
1988).

Q– What is the justification for the validity of search of a moving vehicle?


Explain.

ANS: In People vs. Bagista, G.R. No. 86218, Sept. 18, 1992, the Supreme Court said:

“With regard to the search of moving vehicle, these had been justified on
the ground that the mobility of motor vehicles makes it possible for the vehicle to
be searched to move out of the locality or jurisdiction in which the warrant must
be sought. This is no way, however, gives the police unlimited discretion to
conduct warrantless searches of automobiles in the absence of probable cause.
When a vehicle is stopped and subjected to extensive search, such a warrantless
search has been held to be valid only as long as the officers conducting the search
have reasonable or probable cause to believe before the search that they will find
the instrumentality or evidence pertaining to a crime, in the vehicle to be
searched. In the case at bar, the Narcotics Command (NARCOM) officers had
probable cause to stop and search all vehicles coming from the north in view of
the confidential information they receive from their regular informant that a
woman having the same appearance as that of accuse-appellant would be bringing
marijuana from up north. They likewise have probable cause to search accuse
appellant’s belongings since she fits the description given by the NARCOM
informant. Since there was a valid warrantless search by the NARCOM agents,
any evidence obtained during the course of said search is admissible against
accuse- appellant. At any rate, no objection was raised by the accuse-appellant in
the court below on the inadmissibility of the evidence against her on the ground
that the same was obtained in a warrantless search. This amounts to a waiver of
objection on the legality of the search and the admissibility of the evidence
obtained therefrom. Amid a waiver, the court is duty bound to accept the

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evidence.” (See also People vs. Lo Ho Wing, G.R. No. 88017, Jan 21, 1991; Papa
vs. Mago, 22 SCRA 858; People vs. Que, 77 SCAD 469, G.R. No. 120365, Dec.
17, 1996).

Q- Suppose the search warrant states: “Violation of R.A. No. 6425, otherwise
Known as the Dangerous Drugs Act,’ for possession, control or custody of
Marijuana dried stalks or leaves. The specific section of the law was not
cited. Is the search warrant valid? Why?

ANS: Yes, Even if the specific section of the law was not pinpointed, still there is a
Probable cause. The search warrant satisfies the requirements in the Bill of Rights
on the particularity of description to be made of the place to be searched and
persons or things to be seized. ( G.R. No. 78347-49, Nov. 9, 1987).

Q -- NARCOM agents received persistent reports that a vehicle coming from


Sagada was transporting marijuana and other prohibited drugs. Their
commanding officer also received information that a Caucasian coming from
Sagada on that particular day had prohibited drugs in his possession. The
CO then ordered his men to set up temporary check points from purposes of
checking all vehicles coming from the Cordillera region. A Caucasian was
found riding in a bus. The officers found a bulge on the waist of the accused,
hence, he was asked to produce his passport. He failed to do so. It proved to
be positive that he was possessing marijuana. He was convicted after trial.
On appeal, He contended that he was searched without warrant, therefore,
the prohibited drugs which were discovered during the illegal search were
not admissible as evidence against him. Is the contention valid? Why?

ANS: No. Accused was searched and arrested while transporting prohibited drugs. A
crime was actually being committed by the accused and he was caught in
flagrante delicto. The search made upon his personal effects falls squarely under
paragraph (a) of Section 5, Rule 113 of the Rules on Criminal Procedure, which
allows a search without warrant.

While it is true that the NARCOM officers were not armed with a search
warrant when the search was made over the personal effects of the accused,
however, under the circumstances of the case, there was sufficient probable cause
for said officers to believe that accused was then and there committing a crime.
To deprive the NARCOM agents of the ability to act accordingly, including the
search without warrant, in the light of such circumstances, would be to sanction
impotence and ineffectiveness in law enforcement, to the detriment of society.
(People vs. Malmstedt, G.R. No. 84019, May 6, 1991; People vs. Hilario, G.R.
No. 94037, May 6, 1991).

Q -- A checkpoint was established in Benguet to check the correctness of the


confidential information that accused and others would transport Marijuana
to Baguio City. The operatives intercepted a jeep of the accused were
marijuana was found. The accused admitted that the marijuana was
confiscated from the jeep, but pointed ownership to two of the passengers.
When charged, they were convicted. Before the Supreme Court, they
question the admissibility of the confiscated marijuana because it was the
product of an unlawful search without a warrant. Decide.

ANS: In the earlier case of Valmonte vs. De Villa, G.R. No. 83988, Sept. 29, 1989, it
was said that, true, the manning of checkpoints is susceptible of abuse by the men
in uniform, in the same way that all government power is susceptible of abuse.
But a cost of occasional inconvenience, discomfort even irritation to the citizen,
the checkpoints during the abnormal times when conducted within reasonable
limits are part of the price we pay for an orderly society and peaceful community.
The search was conducted within reasonable limits. But even without the

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Valmonte ruling, the search would still be valid because it falls under Sec. 12 of
Rule 126 and Sec. 5 (1), Rule 113 of the Rules of Court (1985).

The appellants were caught in flagrante delicto since they were


transporting the prohibited drugs at the time of their arrest. A crime was actually
committed. (See also People vs. Auciano, et al., G.R. No. 88937, Sept. 13, 1990;
People vs. Maspil, et al., G.R. No. 85177, Aug. 20, 1990; People vs. Rogelio
Mortos, 44 SCAD 405, G.R. No. 103622, Sept. 1, 1993; People vs. Acuran, 209
SCRA 281 [1992].

Q -- An informant apprised Sgts. Sudiacal and Ahamad of the presence of a drug


pusher at the corner of 3rd Street and Rizal Avenue, Olongapo City.
Responding to the information, they, together with Capt. Castillo, gave the
informant marked money to buy marijuana. The informant now turned
poseur buyer, returned with two-sticks of marijuana. Capt. Castillo again
gave said informant marked money to purchase marijuana. The informant
poseur buyer thereafter returned with another two-sticks of marijuana. The
police officers then proceeded to the corner of 3rd Street and Rizal Avenue
and effected the arrest of the appellant which was questioned as
unconstitutional. Rule on the contention.

ANS: The arrest was legal because the arresting officers had personal knowledge of the
facts implicating the appellant with the sale of marijuana to the informant poseur
buyer. The arrest therefore, was legal and the consequent search which yielded 20
sticks of marijuana was lawful for being incident to a valid arrest.

The fact that the prosecution failed to prove the sale of marijuana beyond
reasonable doubt does not undermine the legality of appellant’s arrest.

It is not necessary that the crime should have been established as fact in
order to regard the detention as legal. The legality of detention does not depend
upon the actual commission of the crime, but upon the nature of the deed such
characterization may reasonably be inferred by the officer or functionary to whom
the law at the moment leaves the decision or the urgent purpose of suspending the
liberty of the citizen.

The obligation to make an arrest by reason of a crime does not pre-


suppose as a necessary requisite for the fulfillment thereof, the indubitable
existence of a crime.

The twenty sticks of marijuana are admissible in evidence and the trial
court’s finding that the appellant is guilty of possession is correct. (People vs.
Ramos, G.R. No. 85401-02, June 4, 1990).

Q -- In a buy-bust operation., accused contended that he was framed up. The


Narcotics Command in Calamba, Laguna received an information that the
accused was selling marijuana. He contended that there was illegal search
and seizure. Is the contention correct? Why?

ANS: Accused’s submission that he was subjected to an illegal search and seizure is not
acceptable. The demonstrated facts are that he was arrested in flagrante and so
came under the exception to the rule requiring previous obtainment of a warrant
to justify a search or seizure. Rule 113, Sec. 5, provides that a peace officer or
indeed even a private person may, without warrant, arrest a person who, “in his
presence, has committed, is actually committing or is attempting to commit an
offense.” In these circumstance, a search may also be Articles seized as a result of
such lawful search are admissible in evidence. (People vs. Ortiz, G.R. No. 82115,
Dec. 3, 1990; People vs. Ernesto Quejada, G.R. No. 97309-10, June 3, 1993;
People vs. Andal, et al., G.R. No. 124933, Sept. 25, 1997).

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In People vs. Mortos, sept. 1, 1993, it was even said that since the accused
was caught in flagrante delicto, the arresting officers were not only authorized but
were under obligation to apprehend him even without a warrant of arrest. (citing
People vs. Paco, 170 SCRA 681; Alvero vs. Dizon, 78 Phil. 637 (1946); People
vs. Claudio, G.R. No. 72564, April 15, 1988).

Q -- In Umil vs. Ramos, a confidential information was given to the CAPCOM,


that a member of the Sparrow Unit of the NPA was being treated at a
hospital in Quezon City. It turned out to be positive. He was arrested.

In Roque vs. De Villa, when Buenaobra was apprehended, he


admitted that he was an NPA courier.

In Anonuevo vs. Ramos, the petitioners were admittedly members of


the NPA and when apprehended they had a bag containing subversive
materials and they were carrying firearms and ammunitions. Were they
arrested illegally? Decide.

ANS: No. Arrest without a warrant of arrest, under Sec. 5 paragraphs (a) and (b) of
Rule 113 of the Rules of Court, as amended, is justified when the person arrested
is caught in flagrante delicto, viz., in the act of committing an offense; or when an
offense has just been committed and the person making the arrest has personal
knowledge of the facts indicating that the person arrested committed it. The
rationale behind lawful arrests, without warrant, was stated by Supreme Court in
the case of People vs. Kagui Malasugui (63 Phil. 221) Thus:

“To hold that no criminal can, in any case, be arrested and searched
for the evidence and tokens of his crime without a warrant; would be to
leave society, to a large extent, at the mercy of the shrewdest of criminals,
facilitating their escape in many instances.”

The claim of the petitioners that they were initially arrested illegally is,
therefore, without basis in law and in fact. The crime of insurrection or rebellion,
subversion, conspiracy or proposal to commit such crimes, and such other crimes
and offenses committed in the furtherance, on the occasion thereof, or incident
thereto, or in connection therewith under Presidential Proclamation No. 2045, are
all in the nature of continuing offenses which set them apart from the common
offenses, aside from their essentially involving a massive conspiracy of
nationwide magnitude. Clearly then, the arrest of the herein detainees was well
within the bounds of the law and existing jurisprudence in our jurisdiction.

The arrest of persons involved in the rebellion, whether as fighting armed


elements or for committing non-violent acts but in furtherance of the rebellion, is
more an act of capturing then in the course of an armed conflict to quell the
rebellion, than for the purpose of immediately prosecuting them in court for a
statutory offense. The arrest, therefore, need not follow the usual procedure in
prosecution of offenses which requires by the determination by the judge of the
existence of probable cause before the issuance of a judicial warrant of arrest and
the granting of bail if the offense is bailable. Obviously, the absence of a judicial
warrant is no legal impediment to arresting or capturing persons committing overt
acts of violence against government forces, or any other milder acts but equally in
pursuance of the rebellious movement. The arrest or capture is thus impelled by
the exigencies of the situation that involves the very survival of society and its
government and duly constituted authorities. If killing and other acts of violence
against the rebels find justification in the exigencies of armed hostilities which is
of the essence of waging a rebellion or insurrection, most assuredly so in case of
invasion, merely, seizing their persons and detaining them while any of these
contingencies continues cannot be less justified. x x x (Garcia-Padilla vs. Enrile,
121 SCRA 472)

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Anonuevo and Casiple’s arrest cannot be illegal since they were carrying
firearms at the time they were arrested. (Umil, et al., vs. Ramos, G.R. No. 81567;
Roque vs. De Villa, G.R. No. 84518-82; Anonuevo vs. Ramos, G.R. No. 84583-
84, July 9, 1990).

Q -- X, a police officer knocked at the door of the house of Y. He got inside when
the door was opened. He was offered coffee and while Y was preparing it, X
searched the place. If X would be able to obtain anything, is the search valid?
Why?

ANS: No, because there was no consent to the search.

Q– On June 28, 1998, Pat. Pamintuan, et al., cordoned the house where the
accused sought refuge. They were not armed with a warrant of arrest.
Without any protest, however, accused went out of the house and gave
himself up to the police officers. The owner of the house then turned over his
luggage to the authorities. With his acquiescence, his suitcase was searched
and it yielded a firearm and ammunition. He then signed and acknowledge a
receipt certificate that one homemade shotgun with one live ammunition and
one empty shell were confiscated from him. Later on, he contended that he
was searched without warrant. Rule on the contention.

ANS: The contention is not correct. He waived his constitutional right against
unreasonable search and seizure by his acquiescence. In People vs. Ramos, 41
SCAD 734, G.R. No. 101804-07, May 25, 1993, it was said:

“When one voluntarily submits to a search or consents to have it


made on his person or premises, he is precluded from later complaining
thereof (Cooley, Constitutional Limitations, 8th ed., Vol. I. Page 631). The
right to be secured from unreasonable search may, like every right, be
waived and such waiver be made either expressly or impliedly.”

And the product of such a lawful search is admissible in evidence.

Since accused appellant was found in flagrante delicto with possession of


an unlicensed firearm and ammunition, his arrest without warrant was proper.
(People vs. Fernando, 87 SCAD 481, G.R. No. 113474, Dec. 13, 1994).

Q– Accused was charged with violation of Sec. 4, Art. 11, Dangerous Drugs Act.
The evidence showed that there was a check point put up in Bontoc, Mt.
Province. The soldiers asked permission to inspect the vehicle of the accused
who consented. A bag was found containing marijuana. After trial, he was
convicted. On appeal, he questioned his conviction, invoking the fact that
there was search without warrant.

ANS: The accused waved his right against unreasonable searches and seizures. As held
in People vs. Malasugui, 63 Phil. 221:

“When one voluntarily submits to a search or consents to have


it made on the person or premises, he is precluded from later
complaining thereof. The right to be secure may like every right, be
waived and such waiver may be made either expressly or impliedly.”

Since in the course of the valid search, 41 packages of drugs


were found, it behooves the officers to seize the same; no warrant was
necessary for such seizure. (People vs. Omaweng, G.R. No. 99050,
Sept. 2, 1992).

Along the same line, in People vs. Armentavo, G.R. No.


90803, July 3, 1992, the SC said that if an accused is arrested in
flagrante delicto, he comes under Rule 113, Sec. 5 (a) authorizing a

11
warrantless arrest where a crime is actually being committed in the
presence of the person making the arrest. The arrest being lawful,
the search incidental thereto was also lawful. (People vs. Sucro, 195
SCRA 388 (1991); Manipon vs. SB, 143 SCRA 267; People vs.
Castillo, 188 SCRA 376 (1991); People vs. Madriage, et al., G.R. No.
82293, July 23, 1992; People vs. Merabueno, 57 SCAD 502, G.R. No.
87179, Dec. 14, 1994; People vs. Pablo, 57 SCAD 753, G.R. No.
105326, Dec. 28, 1994; People vs. Santos, 55 SCAD 521, G.R. No.
106213, Sept. 23, 1994).

Q -- One of the instances when search may be made without warrant is when it is
an incident of inspection. Explain the justification for the same.

ANS: Checkpoints are valid as long as they are limited to visual search. The vehicle
must be subjected to search; the occupants must not be subjected to bodily search.
If conducted in fixed areas, it is less intrusive, for the motorists know that there
are checkpoints. They are not then taken by surprise. But vehicles are stopped and
extensively searched, it is because of some probable cause which justify a
reasonable belief of the men conducting the search that the motorists is a law
offender. Check-points are designed to promote public interest, safety and
necessity. (Valmote vs. De Villa, G.R. No. 83988, May 24, 1990; People vs.
Maspil, Aug. 20, 1990).

Q -- In an application for search warrant for violation of the Copyright Law, is


there necessity to present the master tapes? Why?

ANS: Yes. The Supreme Court in 20th Century Fox Film Corp. vs. CA, G.R. No. 76649-
51, Aug. 19, 1988, said that the presentation of the master tapes of the copyrighted
films from which the pirated films were allegedly copied is necessary for the
validity of search warrant against those who have in their possession the pirated
films. The argument that they are evidentiary is not meritorious. The court cannot
presume the duplicate or copied tapes were necessarily reproduced from master
tapes that it owns.

Q -- A complaint was filed by petitioners for violation of PD 49 as amended by PD


1988 before the NBI which conducted a surveillance. The agents applied for a
search warrant and were granted where the court ordered the classification
of:

“Television sets, video cassette recorders, rewinders, tape head


cleaners, accessories, equipment and other machines and paraphernalia
or materials used or intended to be used in the unlawful sale, lease,
distribution, circulation or public exhibition of the above-mentioned
pirated video tapes which they are keeping and concealing in the
premises above-described, which should be seized and brought to the
court after service of the warrant, the aforesaid things were seized.”

A motion for the immediate release of the objects was filed


contending that the owner was legitimate or licensed video producers,
hence, it has the right to maintain possession seized equipment. It was
approved on the ground that the possessor , FGT was a videogram
distributor and not a reproducer, hence, it may be logically concluded
that such 634 VCR’s accessories, etc., “were used or intended to be used
in the unlawful sale, lease, distribution, circulation or public exhibition
of, at the very least, the 310 video cassette tapes containing the
copyrighted films/motion pictures.”

12
The RTC ruled in favor of FGT and ordered the release of the
seized materials. Is the order proper? Why?

ANS: Yes, because the language in the search warrant was all-embracing, hence, a
general warrant. It violated the requirement of the specificity of description. In
the earlier case of 20th Century Fox Film Corp. vs. CA, 164 SCRA 655 (1988), it
was said: television sets, video cassette recorders, rewinders and tape cleaners are
articles which can be found on the video tape store engaged in legitimate business
of lending or renting out betamax tape. In short, these articles and appliances are
generally connected with, or related to a legitimate business not necessarily
involving piracy of intellectual property or infringement or copyright laws.
Hence, including these articles without specification and/or particularity that they
were really instruments in violating an Anti-Piracy Law makes the search warrant
too general which could result in the confiscation of all items found in any video
store.

The language used in paragraph © of Search Warrant No. 45 is thus too


all-embracing as to include all the paraphernalia of FGT in the operation of its
business. As the search warrant is in the nature of a general one, it is
constitutionally objectionable. (Corro vs. Lising, 137 SCRA 541 [1995).

In issuing the release order, the Judge was merely correcting his erroneous
conclusion in issuing the search warrant. ( Columbia Pictures, Inc., et al., vs.
Flores, 42 SCAD 764, G.R. No. 78631, June 29, 1993).

Q -- On August 14, 1991, appellant and his common-law-wife went to the booth of
the Manila Packing and Export Forwarders, carrying with them four (4) gift
wrapped packages which they wanted to send to Switzerland. Appellant
filled up the contract. The proprietress asked that the packages be opened
but customs/post office, Mr. Job Reyes, following standard operating
procedures, opened the boxes for final inspection. He found dried leaves
inside the gloves. He prepared a letter to the NBI and reported the matter.
He was investigated and told the NBI that the shipment was at his office. He
brought out the box in the presence of the agents. Dried marijuana leaves
were found. An inventory was made and the NBI took custody of the said
effects. On August 27, 1991 while claiming his mail, he was invited by the
NBI to shed light on the attempted later on filed. He was convicted after
trial for violation of R.A. No. 6425, the Dangerous Drugs Act. He contested
his conviction, contending that there was violation of his constitutional rights
against unreasonable search and seizure, and privacy of communication. Is
the contention valid? Why?

ANS: No, because what is sought to be excluded was discovered and obtained by a
private person, acting in a private capacity without the intervention and
participation of state authorities. Under the exclusionary principle initiated in a
cases series of cases, the evidence so obtained where invariably procured by the
state thru the medium of its law enforcers or other authorized government
agencies. In absence of governmental interference, the liberties guaranteed by the
constitution cannot be invoke against the state. As held in Villanueva vs.
Querubin: (48) SCRA 345 [1972]):

“This constitutional right (against unreasonable search and seizure)


refers to the immunity of one’s person, whether citizen or alien, from
interference by government, included in which his residence, his papers,
and other possessions. xxx

“xxx There the State, however, powerful thus not have the access
except under the circumstances above noted, for in the traditional
formulation, his house, however, humble, is his castle. Thus is out- lawed
any unwarranted intrusion by the government which is called upon to
refrain from any invasion of his dwelling and to respect the privacy of his

13
life. Xxx” ( Cf. Schermenber vs. California, 384 U.S. 757 (1966) and
Boyd vs. United State, 116 U.S. 616 (1886); See also Burdan vs.
McDowell, 256 US 465 (1921) 41 SC, 574, 65 L. Ed. 1048) .

There was no transgression of the rights of the appellant by the


government because:

(1) The inspection done by a private individual as part of the standard procedure
and precautionary measure before the delivery of the packages to the Bureau of
Customs or the Bureau of Post:

(2) The NBI did not search. The mere presence of the NBI agents of the time of
the packages were opened did not convert reasonable search by a private
individual into a warrantless search and seizure. Merely to observe and look at
that which is in plain sight is not a search. (People vs. Andre Marti, G.R. No.
81561, Jan. 18, 1991).

Q -- What is a general warrant?

ANS: It is a search warrant which vaguely describes and does not particularize the
personal properties to the seized without the definite guidelines to the searching
team as to what items might be lawfully seize, thus giving the officers of the law
discretion regarding what articles they should seize. (Nolasco vs. Pano, G.R. No.
69803, Oct. 8, 1985; Stonehill vs. Diokno; Burgos vs. Chief of Staff, 133 SCRA
800).

Q -- Is a general warrant valid? Why?

ANS: No, because it infringes on the constitutional mandate requiring particular


description of the things to be seized. (Nolasco vs. Pano).

Q -- The items listed in the search warrant stated “Napocor galvanized bolts,
grounding motor drive assembly, aluminum wire and other Napocor tower
parts and line accessories. “ Is to search and seizure valid? Why?

ANS: No, because it is a general warrant, falling short of the constitutional requirements
that the description should be specific. That the seized materials are
incriminating, the Supreme Court said, is beside that point. It was contended that
under Sec. 5, PD 1612, mere possession of any goods, items, articles, object or
anything of value which has been the subject of robbery or thievery shall be
prima facie evidence of fencing.

No matter how incriminating the articles taken from the petitioner may be,
their seizure cannot validate an invalid warrant. Since there is no showing that
the possession of seized articles is illegal, the return to the possessor is proper and
the use of the same as evidence is enjoined. (Peudon vs. CA, et al.,)

Q -- Two Hundred Philippine Marines and elements of the CHDF raided the
compound of Alih, in search for loose firearms. The people inside the
compound resisted, hence, a gunfight ensued. The officers confiscated 19
rifles and several ammunitions. Was the search valid? Why?

ANS: No, because there was no search warrant. The military officers bypassed the
civilian authority who must have determined whether there was probable cause or
not. (Alih vs. Castro, G.R. No. 69401, June 23, 1987).

14
Q -- Can Alih file a motion for replevin over the 19 rifles? Why?

ANS: No, because the rifles were illegally possessed. (Alih vs. Castro, supra).

Q -- In an application for a search warrant, it was admitted that the questions


propounded in the supposed to be searching questions were pretyped, that
the only participation of the applicant for search warrant was to subscribed
before the judge.

Rule on the validity of the search warrant.

ANS: The search warrant is void because the rule that the judge must conduct searching
questions and answers before issuance of the warrant were not complied with.
(Peudon vs. CA, et al., G.R. No. 84873, Nov. 16, 199In fact, in Roan vs.
Gonzales, G.R. No. 71410, Nov. 25, 1986, it was said that the depositions must be
taken and attached to the report.

Q -- May a search be issued on the basic of a hearsay evidence? Why?

ANS: No, because it must based in the personal information of the applicant. The
rationale for the requirement is to provide a ground for a prosecution. For perjury
in case the applicant’s declarations found to be false. (Roan vs. Gonzales, et al.,
G.R. No. 71410, Nov. 25, 1986),

Q -- Does the finding of probable cause require and inquiry into whether there is
sufficient evidence to procure a conviction? Explain.

ANS: No. It is enough that it is believed that the acted or omission complained of
constitutes the offense charged. Precisely, there is a trial for the Reception of
evidence of the prosecution in support of the charge. (Allado et al., vs. Hon.
Roberto Diokno, et al., 51 SCAD 91, G.R. No. 113630, May 5, 1994; Pilapil vs.
SB, 221 SCRA 349, April 7, 1993).

Q -- What is the standard in determining probable cause?

ANS: In order that there be probable cause, the facts and circumstances must be such as
would warrant belief by a reasonably discreet and prudent man that the accused is
guilty of the crime which has been committed. This is so because the probable
cause test is an objective one. Hence, if upon the filing of the information and the
document cause exists, he must either call for the complainant and witnesses
themselves or simply dismiss the case there is no reason to hold the accused for
trial and further expose him to an open and public accusation of the crime when
no probable cause exists. (Allado vs. Diokno supra).

Q -- What is the “multifactor balancing test” in determining probable cause?


Illustrate.

ANS: It is one which requires the officer to weight the manner and intensity of the
interference on the right of the people, the gravity of the crime committed and the
circumstances attending the incident. ( Allado, et al., vs. Diokno et al., 51 SCAD
91, G.R. No. 113630, May 5, 1994 citing Alschuler, Bright Line Fever and the
Fourth Amendment, 45 U.Pitt. L. Rev. 227, pp. 243-256 (1984); Grano, Probable
Cause and Common Sense: A Reply to the Critics of Illinois vs. Gates, 17 U.
Mich. J.L. Ref. 465, 501-06([1984]).

In Allado et al., vs. Diokno, et al., it was observed by the Supreme Court
that from the gathering evidence until the termination of the preliminary

15
investigation, that state prosecutors were overly eager to file the case and secure a
warrant for the arrest of the accused without bail and there consequent detention.
The affidavit of the witnesses were laden with inconsistencies. The PACC which
had a hand in the determination of probable cause in the preliminary inquiry. The
Supreme Court said:

“The sovereign power has the inherent right to protect itself and its
people from vicious acts which endanger the proper administration of
justice; hence, the state has every right to prosecute and punish violators
of the law. This is essential for its self preservation, nay, its very existence
but this does not confer a license for pointless assaults on its citizens, The
right of the state to prosecute is not a casrte blanche for government
agents to defy disregard the rights of its citizens under the constitution”.

Q -- During the buy-bust operation. The accused handed over the poseur-buyer, a
quantity of shabu. He then turned over a marked P100.00 bill to the accused,
then he returned to the headquarters. The raiding team proceeded to the
house of accused and implemented the search warrant and arrested the
accused. Was the arrested and search valid? Why?

ANS: No. He should have been arrested when he handed the shabu. The usual
procedure in a buy-bust operation is for the police officers to arrest the pusher of
drugs at the very moment he hands over the dangerous drugs to the poseur buyer.
That is the reason why such a police operation is called a “buy-bust” operation.
(People vs. Del Rosario, 52 SCAD 359, G.R. No. 109633, July 20, 1994).

Q -- The search warrant authorized the seizure of shabu and its paraphernalia.
In the implementation of the warrant, firearms were seized. Are they
admissible in evidence? Why?

ANS: No, because the raiding team was authorized to seize only shabu or paraphernalia
for the use thereof and no other. A search warrant is not a sweeping authority
empowering a raiding team undertake a fishing expedition to seize or confiscate
any and all kinds of evidence of articles relating to a crime. The Constitution
( Sec. 2 Article 111) and the Rules of Court (Sec. 3, Rule 126) specifically
mandate that the search warrant must particularly describe the things to be seized.
Thus the warrant was not authority for the police officers to seize the firearms
which were not mentioned, much less described with particularity in the search
warrant neither may it be obtained that the gun was seized in the course of an
arrest, for the arrest was not legal. Said firearm, having been illegally seized, the
same is not admissible in evidence. ( People vs. Del Rosario, 53 SCAD 359, G.R.
No. 109633, July 20, 1994, citing Stonehill vs. Diokno, 20 SCRA 383 [1967]).

Q -- X threw a bag from a truck and marijuana leaves spilled out of the bag. He
was arrested and searched without warrant. He contended that hen could
not be searched without warrant. Decide.

ANS: The warrantless search is not illegal. There was no search conducted since the
marijuana was open to view as they lay on the road. ( People vs. Alfonso, 219
SCRA 102).

Q -- Give examples of situations were there was waiver of the right against
unreasonable searches and seizure.

ANS: (1) In People vs. Tabar, 41 SCAD 359, G.R. No. 101124, May 17, 1993, upon
seeing that the boy to whom she gave marijuana, was arrested, she left her
shanty. She was seen by the policeman who arrested the boy. When they
asked her spread out the pair of trousers, she complied. Three packs of
marijuana were expose. The accused questioned the seizure of marijuana as

16
illegal. The Supreme Court said that by voluntarily spreading out the rolled
pair of trousers, the accused waive right against unreasonable searches and
seizure.

(2) In People vs. Ramos, 41 SCAD 734, G.R. No. 101804-07, May 25, 1993, after
five armed men robbed a house, the police officers reconnoited the house of
the accused. When they saw him, and was identified by the victim, he allowed
the police to frisk him. A revolver was discovered. He was charged by illegal
possession of firearms, but he contended that he had been illegally searched.
The Supreme Court said waive his right against unreasonable searches and
seizure. ( See also People vs. Doro, 42 SCAD 18, G.R. No. 99866, June 12,
1993).

Q -- Mayor Antonio Sanchez was arrested 46 days after the commission of the
alleged rape, etc. Against Mary Eileen Sarmenta and killing of Allan Gomez
and Sarmenta. He was arrested before warrants was issued. Rule on validity
of his arrest.

ANS: The arrest is illegal because the police officers who arrested him were not present
when he allegedly participated in the rape and killing. They had no personal
knowledge of the allege criminal liability of Mayor Sanchez that merely relied on
the sworn statements of two witnesses. Since he was arrested 46 days after the
commission of the crimes in question, it could not be said that he had just
committed a crime at the time of the arrest. ( Sanchez vs. Demetriou, 46 SCAD
152, G.R. No. 111771-77, Nov. 9, 1993; See also People vs. Enrile, 41 SCAD
767, G.R. No. 74189, may 26, 1993).

Q -- Is it possible that search and seizure be effected before an arrest.?

ANS: Yes. Search and seizure may be effected without necessarily being preceded by
an arrest. An illustration is in a stop-and-search without warrant at a military or
police checkpoint. (People vs. Exala, G.R. No. 76005, April 23, 1993, citing
Valmonte vs. de Villa, 178 SCRA 211).

In this case of People vs. Exala, supra, when the vehicle of the accused
was stopped and searched, the peculiar apprehensiveness of the accused provided
a probable cause which justified a more extensive search leading to the discovery
of the prohibited stuff. No sign of protest when made to the search. Their
submissive stance and the absence of protest when arrested cast doubts on their
innocence and confirms their acquiescence to the search and their waiver of their
rights against unreasonable searches and seizures. Their arrest after discovery of
the prohibited drug in their possession was legal. There was no need for a warrant
of arrest, for the arrest was made while a crime was committed.

RULE:
In People vs. Bautista, 45 SCAD 262, G.R. No. 102618, October 12, 1993,
the station commander got his information directly from his own men and he saw
for himself the presence of the purchased drug and the culprit from whom it was
purchased. To say that he is required to secure a warrant to arrest the perpetrator
of the crime is to unduly limit the power of our police in enforcing the laws of the
land. To require search warrants during the on-the-spot apprehensions of drug
pushers would make it difficult, it not impossible, to contain the crimes
committed by these persons. (People vs. Tangliban, 184 SCRA 220 (1990).

Facts: On the strength of an alleged extrajudicial confession of a


security guard, the petitioners were ordered arrested as they were linked by him in
the kidnapping and murder of Van Twest. He alleged that the petitioners
masterminded the offense; burned the victim with the use of gasoline and tires.
The Department of Justice organized a panel of prosecutors which filed the case

17
in court in the basis of the aforesaid affidavit of the security guard. Another
witness who waived the right to submit his affidavit asked for leave to file one,
confessing participation in the abduction and slaying of Van Twest and
implicating petitioners. He later on moved to suppress the same contending that it
was extracted through intimidation and duress. After the information was filed,
the petitioners requested for ample time to file an opposition to the motion of
issuance of a warrant of arrest which was granted. They also filed an appeal to
the Secretary of Justice for the reversal of the undated resolution of the panel, but
the Judge issued the warrant of arrest despite the motion to defer the proceedings,
hence, this petition. They contended that the judge abused his discretion
amounting to lack of jurisdiction in whimsically holding that there is probable
cause without determining the admissibility of the evidence against petitioners
and without stating the basis of his findings.

The Supreme Court quashed the warrant and

Held: Section 2, Art. III, of the 1987 Constitution lays down the
requirements for the issuance of a warrant of arrest, i.e., a warrant of arrest shall
issue only upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complaint and the witnesses he may
produce.

Before issuing a warrant of arrest, the judge must satisfy himself that
based on the evidence submitted, there is sufficient proof that a crime has been
committed and that the person to be arrested is probably guilty thereof. In the
Order of respondent judge, dated 11 February 1994, it was expressly stated that
“[t] his court after careful evaluation of the evidence on record, believes and rules
that probable cause exists; and therefore, a warrant of arrest should be issued.”
However, we are unable to see how respondent judge arrived at such ruling. We
have painstakingly examined the records and we cannot find any support for his
conclusion. The evidence submitted is not sufficient for the following reasons:

(1) The PACC relied heavily on the sworn statement of the security guard.
There is doubt on Van Twest’s death since the corpus delicti has not been
established. He said the body was burned to ashes. A human body cannot
be pulverized into ashes by simply burning it with the use of gasoline and
rubber tires. Even crematoria use entirely closed incinerators where the
corpse is subjected to intense heat. (See Abbey Land vs. Country of San
Mateo, 167 Cal. 434, 139, p.1068). Thereafter, there mains undergo a
process where the bones are completely ground to dust.

(2) The investigators never exerted efforts to go to the place of cremation.

(3) After his abduction, his counsels still represented him before judicial and
quasi-judicial proceedings.

(4) Van Twest is known to be an international fugitive from justice.


Petitioner’s theory is that his supposed death may stop his manhunt. In
U.S. vs. Samarin, 1 Phil. 239 (1902) it has been held that:

“When the supposed victim is wholly unknown, his body not


found, and there is but one witness who testifies to the killing, the corpus
delicti is not sufficiently proved.”

(5) PACC said that the security guard has been in their custody since
September 15, 1993. He was interrogated only on September 16, 1993
and at the security barracks of Valle Verde V, Pasig, where he was a
security guard

The judge did not personally examine the evidence or called for the
complainant and his witnesses in the face of their incredible accounts. Instead, he

18
merely relied on the certification of the prosecutor’s that probable cause existed.
For, otherwise, he would have found out that the evidence thus far presented was
utterly insufficient to warrant the arrest of petitioners. In this regard, we restate
the procedure we outlined in various cases we have already decided”.

In Soliven vs. Makasiar, 167 SCRA 393 (1988), we said that the judge (a)
shall personally evaluate the report and the supporting documents submitted by
the fiscal regarding the existence of probable cause and, on the basis thereof, issue
a warrant of arrest; or, (b) if on the basis thereof he finds no probable cause, he
may disregard the fiscal’s report and require the submission of supporting
affidavits of witnesses to aid him in arriving at a conclusion on the existence of
probable cause.

In People vs. Inting, 187 SCRA 788 (1990), we emphasized the important
features of the constitutional mandate: (a) the determination of the probable cause
is a function of the judge; it is not for the provincial fiscal or prosecutor to
ascertain. Only the judge and the judge alone makes this determination; (b) the
preliminary injury made by a prosecutor that not bind the judge. It merely assists
him in making the determination of probable cause. The judge does not have to
follow what the prosecutor presents to him. By itself, the prosecutor’s
certification of probable cause in ineffectual. It is the report, the affidavits, the
transcript of stenographic notes (if any), and all other supporting documents
behind the prosecutor’s certification which are material in assisting the judge in
his determination of probable cause; and, (c) judges and prosecutors alike should
distinguish the preliminary inquiry which determines probable cause for the
issuance of a warrant of arrest from the preliminary investigation proper which
ascertains whether the offender be held for trial or released.

In Lim vs. Felix, 187 SCRA 292 (1991), where we reiterated Soliven vs.
Makasiar and People vs. Inting, we said –

“The Judge does not have to personally examine the complainant


and his witnesses. The prosecutor can perform the same functions as a
commissioner for the taking of the evidence. However, there should be a
report and necessary documents supporting the fiscal’s bare certification.
All these should be before the judge. (Allado, et al., vs. Dikno, et al., 51
SCAD 91, G.R. No. 113630, May 3, 1994)”.

Q-- The search warrant authorized the officers only the search and seizure of the
described quantity of shabu and its paraphernalia. If they seized firearms
ammunitions, can the accused be convicted of illegal possession of firearms
and ammunitions? Why?

ANS: No. The officers were only authorized to seize shabu and paraphernalia for the
use of the same. A search warrant is not a sweeping authorize empowering a
raiding party to undertake a fishing expedition to seize and confiscate any and all
kinds of evidence or articles relating to a crime. The constitution mandates that
the search warrant must particularly describe the things to be seized. The search
warrant was not an authorized for the police officers to seize firearms which was
not mentioned or particularly described. In People vs. Del Rosario, 53 SCAD
359, G.R. No. 1093633, July 20, 1994, it was said neither may it maintain that the
gun was seized in the course of an arrest, for in this case, the arrest was irregular
and illegal. Said firearm, having been illegally seized, the same is not admissible
in evidence. (citing Stonehill vs. Diokno, 20 SCRA 383 ).

Q -- The police apprehended the accused for possession of marijuana because


he was acting suspiciously. But he testified that the did not actually see the
accused selling marijuana. The other police officers said he did not have
personal knowledge whether the accused was in possession of marijuana. Is
the arrest without warrant valid? Is the evidence admissible? Why?

19
ANS: No. The cardinal rule is that no person may be subjected by the police to a search
in his house, body or personal belonging except by virtue of a search warrant or
on the occasion of a lawful arrest. (People vs. dela Cruz, 184 SCRA 416 [1990).
If a person is arrested merely on suspicion that he is engaged in some felonious
enterprise, and in order to discover if he has indeed committed a crime, it is not
only the arrest which is illegal but also, the search on the occasion thereof as
being ‘the fruit of the poisonous tree.” (People vs. Aminudin, 16, SCRA 402). In
that event, any evidence taken, even if confirmatory of the initial suspicion, in
inadmissible for any purpose in any proceedings. (People vs. Rodriguez, 51
SCAD 355, G.R. No. 79965, May 25, 1994).

Q -- What is the extent of the validity of a warrantless search of a motor vehicle?

ANS: A warrantless search of a motor vehicle is limited only to a visual search thereof
and its occupants. An extensive search without a warrant can only be resorted to,
if the police believe before the search that either the motorist was a law offender
or that they would find the instrument or evidence pertaining to the commission
of a crime in the vehicle to be searched. The existence of probable cause
justifying the warrantless search is determined by the facts of each case. (People
vs. Balingan, 58 SCAD 861, G.R. No. 105834, Feb. 13, 1995).

Q -- In Richard Hizon, et al., vs. CA, G.R. No. 119619, Dec. 13, 1996, it appears
that the PNP Maritime Command of Puerto Princesa City, Palawan received
reports of illegal fishing operations in the coastal waters of the city. When the
same of policemen responded, they found several men fishing in motorized
sampans and a big fishing boat within the 7-kilometers shoreline in the city.
They boarded the F/B Robinson and inspected the boat with the consent of
the captain and found a large aquarium full of live lapu-lapu and assorted
fish. They also found two (2) foreigners with only xerox copies of their
passports. After bringing them to the headquarters, they got random
samples of the fish from the aquarium, to be submitted for examination to
determine the method of catching the fish for record or evidentiary purposes.
After examination by the NBI, it was reported that the specimen gave
positive results to the test for the presence of Sodium Cinamide, a violent
poison; hence, a complaint was filed against the accused. An information
was filed. After trial, they were convicted.

On appeal, they questioned the admissibility of the evidence against


them in view of the warrantless search of the fishing boat and arrest of the
accused. It was with the concurrence of the Solicitor General. Rule on the
contention and explain.

ANS: “Our Constitution proscribes search and seizure and the arrest of persons without
a judicial warrant. As a general rule, any evidence obtained without a judicial
warrant is inadmissible for any purpose in any proceeding. The Rule is, however,
subject to certain exceptions. Some of these are (1) as search incident to a lawful
arrest; (2) seizure of evidence in plain view; (3) search of a moving motor vehicle;
and (4) search in violation of customs law.

Search and seizure without search warrant or vessels and aircrafts for
violation of customs law have been the traditional exception to the constitutional
requirement of a search warrant. It is noted on the recognition that a vessel and
an aircraft, like motor vehicles, can be quickly moved out of the locality or
jurisdiction in which the search warrant must be sought and secured. Yielding to
his reality, judicial authorities have not required a search warrant of vessels and
aircrafts before their search and seizure can be constitutionally effected. (Papa vs.
Mago).

20
The same exception ought to apply to seizure of fishing vessels and boats
breaching our fishery laws. These vessels are normally powered by high-speed
motors that enable them to elude arresting ships of the Philippine Navy, the Coast
Guard and other government authorities enforcing our fishery laws. (Roldan, Jr.,
Vs. Arca).“The warrantless search of the F/B Robinson, a fishing boat
suspected of having engaged in illegal fishing was valid. The fish and
other evidence seized in the course of the search were properly admitted
by the trial court. Moreover, petitioners failed to raised the issue during
trial and hence, waived their right to question any irregularity that may
have attended the said search and seizure.” (Hizon, et al., vs. CA, et al.,
77 SCAD 281. G.R. No. 119619, Dec. 13, 1996).

Q-- X, a police officer was granted permission by the owner of a house to break
open the same to determine the presence of “rebel soldiers.” Upon entry into
the house, can be conduct search without warrant? Why?

ANS: No, because the permission was merely to determine the presence of rebel
soldiers. The permission did not include any authority to conduct a room-to-room
search once inside the house. The items taken therefore, were products of illegal
search; hence, inadmissible in evidence. (Veroy vs. Layague, 210 SCRA 97
[1992]).

Q-- Cong. Francisco Aniag, Jr. was one of those who were issued firearms by the
House of Representatives. Pursuant to the “Gun Ban” issued by the Comelec
the Sergeant-at-Arms of the House wrote him a letter requesting the return
of the guns. So, he immediately instructed his driver to get the guns from his
house at Valle Verde and return the same. He complied, but immediately, a
checkpoint was established outside of the Batasan Complex some 20 meters
away from the entrance. When the driver approached the checkpoint, the
car was searched and the police found the guns at the compartment, placed
in a bag. He was apprehended. He was charged before the Quezon City
Prosecutor’s Office, but it was dismissed. The Law Department of the
Comelec, however, recommended the prosecution of the driver and the Aviag
for violation of the Omnibus Election Code. They questioned the manner by
which the search was conducted, as it was without any warrant. Decide.

ANS: No, once a court has been informed that a search warrant has been issued by
another court, it cannot require a sheriff or any proper officer of the court to take
property subject of the replevin action, if therefore it came into custody of another
public officer by virtue of a search warrant. Only the Court of First Instance (now
RTC) that issued such a search warrant may order its release. A judge who
presides in branch of a court cannot modify or annul the orders issued by another
branch of the same court, since the two (2) courts are of the same rank, and act
independently but coordinately. (Chua vs. CA, et al.,41 SCAD 298, G.R. No.
79021, May 17, 1993 citing Montessa vs. Manila Cordage Co., 92 Phil. 25).

Q-- Suppose it was a motorcycle or a typewriter that was taken by two military
officers would replevin be proper? Why?

ANS: Yes, because they are not illegally possessed. (Alih vs. Castro, June 27, 1992).

Q-- The accused was convicted of murder. During custodial investigation, he did
not want to admit his guilt but he was told by the police, “baka hindi ka
tumagal diyan,” so he signed the statement without counsel. He was
allegedly maltreated by having his genital poured with water diluted with hot
pepper being subjected to electric shock; and by being allowed to be mauled
by the father of the deceased. Nevertheless, he was convicted by the court
giving credence to his confession. Was the admission of his extra-judicial
confession proper? Why?

21
ANS: No, because he was not assisted by counsel when he made the waiver. The fatal
omission renders his extrajudicial confession inadmissible. Any statement
obtained in violation of the constitution provision whether exculpatory or
inculpatory, in whole or in part, shall be inadmissible in evidence. Even if the
confession speaks the truth if it was made without the assistance of counsel, it
becomes inadmissible in evidence regardless of the absence of coercion or even if
it has been voluntarily given. (People vs. Javar, 44 SCAD 483, G.R. No. 82769,
Sept. 6, 1993; citing People vs. Esteran, 186 SCRA 34; People vs. Nolasco, 163
SCRA 623).

However, if there is independent evidence to prove his guilt, then, he can


still be guilty. (People vs. Cono, 202 SCRA 200).

Q-- In a buy-bust operation, the accused was found in possession of dried


marijuana leaves and one stick of marijuana cigarette. After the arrest, he
was booked and he signed the booking sheet and arrest report. What is the
importance of the signing of such booking sheet and arrest report? Explain.

ANS: None, because when a person arrested signs a booking sheet and arrest report at a
Police Station he does not admit the commission of an offense nor confess to any
incriminating circumstance. The Booking Sheet is merely a statement of the
accused being booked and of the date which accompanies the fact of an arrest. It
is a police report and may be useful in charges of arbitrary detention against the
police themselves. It is not a extrajudicial statement and cannot be basis of a
judgment of conviction. (People vs. Bandin, 44 SCAD 684, G.R. No. 104494,
Sept. 1993, citing People vs. Rualo, 152 SCRA 635).

Q-- What is the effect if the person arrested signs the receipt of property seized
without the aid of counsel? Explain.

ANS: The receipt is inadmissible in evidence, because it was given without assistance of
counsel. In the cases of People vs. Mauyao, 207 SCRA 732 and People vs. Turla,
167 SCRA 278, the SC said that the signature of the accused-appellant on the
receipt of property seized is a declaration against his interest and tacit admission
of the crime charged, for unexplained position of prohibited drugs is punished by
law. The signature of the accuse-appellant on the receipt is tantamount to an un-
counseled extra-judicial confession prohibited by the Bill of Rights (Sec. 12(i),
Art.111, 1987 Constitution). It is, therefore, in admissible because evidence for
any admission obtained from the accused in violation of his constitutional rights is
inadmissible against him. ( People vs. Bandin, G.R. No. 104494, Sept. 10, 1993;
See also People vs. De Guzman, G.R. No. 86172, March 4,m `1991; People vs.
De Las Marinas, G.R. No. 87215, April 30, 1991); (People vs. Morico, 62
SCAD 706, G.R. No. 92660, July 14, 1995).

Q-- After the accused was arrested, he was subjected to paraffin test. He was
convicted. He contended on appeal that when his paraffin test was taken, he
was not assisted by counsel; hence, his constitutional right to counsel was
violated. Is the contention valid? Why?

ANS: No. The right to counsel is afforded to any person under investigation for the
commission of an offense whose confession or admission may not be taken unless
he is informed of his right to remain silent and to have competent and independent
counsel on his own choice. His right against self –incrimination is not violated by
the taken paraffin test of his hands. This constitutional right extends only to
testimonial compulsion not when the body of the accused is proposed to be
examined. The paraffin test proved positively that he would just recently fired a
gun. This kind of evidence buttresses the case of prosecution. (People vs.
Gamboa, G.R. No. 91374, Feb. 25, 1991).

22
Q-- The accused was not assisted by counsel when he initialed the P10.00 bills
which the police found tucked in his waist while selling marijuana cigarettes.
He was convicted. On appeal, he questioned the uncounselled signing of the
bills. Rule on the contention.

ANS: The accused was not denied due process during the custodial investigation.
Although he was not assisted by counsel when he initialed the P10.00 bills that
the found tucked in his wallet, his right against self-incrimination was not violated
for his possession of the marked bills did not constitute a crime. The subject pf
the prosecution was his act of selling marijuana cigarettes. His conviction was
not base on the presence of his initials on the P10.00 bills, but on the fact that the
trail court believes the testimony of the policemen that they arrested him while he
was actually engaged in selling marijuana cigarettes to a member of the arresting
party. The trial court gave more credence to their categorical declarations than the
appellant’s denials. Law enforcers are presumed to have performed their official
duties in a regular manner. (People vs. Linsangan, G.R. No. 88589, April 16,
1991).

Q-- X was a runner of the police officers who tipped to them that a man was
selling marijuana inside a hut. X then entered the hut and gave marked
money to Y, the man. The police pounced on Y, and seize a stick of
marijuana from the buyer. Was the arrested valid? Why?

ANS: No, because the police officers were not armed with a search warrant. No crime
was committed or being committed. No marijuana was found in the buyer. The
accused was not in the act of selling marijuana. In fact, he was in bed. (People
vs. Zapanta, G.R. No. 90853, march 13, 1991).

Q-- X was arrested by the police who found marijuana on him. He admitted that
it came from Y. He agree to pose a buyer to entrap the seller. He was given
marked money. He then went to the compound where the seller was found.
After coming out from the compound, he surrendered the marijuana to the
police who entered the house of the alleged seller. They seized the marked
money from him and confiscated marijuana. Was the search valid? Why?

ANS: No, because the police had no personal knowledge of what transpired in the
house. They only learned of the consummation of the sale when they were given
the go signal by the buyer after the latter left the house of the seller. (People vs.
Olaes, 188 SCRA 91; See also People vs., Manlulu, 50 SCAD 71, G.R. No.
102140, April 22, 1994; People vs. Yap, 48 SCAD 190, G.R. No. 103517, Feb. 9,
1994).

Q-- Accused was arrested on the basis of the fact that he had his bio-data at the
scene of the crime. Was his arrest legal? Why?

ANS: No, because by no means this bio-data indicated that the committed the offense
charged. It did not even connote that the accused was at the scene of the crime at
that time or it could have been obtained by anyone and left at the scene of the
crime long before and after the crime was committed.

The police therefore had no personal knowledge of the accused’s guilt. At


best, he had unreasonable suspicion; hence, the arrest was illegal. (People vs.
Sequino, et al., 76 SCAD 63, G.R. No. 117397, Nov. 13, 1996).

PRIVACY OF COMMUNICATIONS

23
Q-- Under what circumstances may the privacy of communications and
correspondence be violated?

ANS: The constitution says that the privacy of communications and correspondence
shall be inviolable except upon lawful of the court, or when public safety or order
requires otherwise as prescribed by law. (Art. III, Sec. 3, Constitution).

Q-- Cecilia Zulueta, the wife of Dr. Alfredo Martin, forcibly opened the drawer
and cabinet of her husband’s clinic and took 157 documents consisting of
private communications between the doctor and his alleged paramours,
greeting cards, checks and diaries. They were seized for use in an action for
legal separation and to disqualify him from the practice of his profession. Are
the pieces of evidence admissible? Why?

ANS: The constitutional injunction declaring privacy of communication and


correspondence to be inviolable is no less applicable simply because it is the wife
who feels aggrieved by her husband’s infidelity and who is the party forced. The
only exception is if there is a lawful order of 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 an proceeding.

The intimacies between husband and wife do not justify any one of them
breaking the cabinets and drawers of the other and in ransacking them for any
telltale evidence of marital infidelity. A person, by contracting marriage, does not
shed his or her or her integrity or right to privacy as an individual and
constitutional protection is ever available to him or to her. (Zulueta vs. CA, et al.,
68 SCAD 440, G.R. No. 107383, Feb. 20, 1996).

Q-- If a spouse files a petition for annulment of marriage on the ground of


psychological incapacity, can he/she testify on a confidential psychiatric
evaluation report on the defendant? Explain.

ANS: Yes. In a petition for annulment of marriage ground on psychological incapacity,


a confidential psychiatric evaluation report on the defendant wife may be testified
to by the plaintiff husband without offending the privileged communication rule.
(Krohn vs. CA, 52 SCAD 250, G.R. No. 108854, June 14, 1994).

Q-- Edgard Krolin filed a petition for annulment of marriage on the ground of
psychological incapacity against his wife, Ma. Paz Fernandez. When he
testified, he testified on a confidential psychiatric evaluation report, hence,
the wife objected invoking the rule on privileged communication between
physician and patients. Is the objection tenable? Why?

ANS: No, because the witness testifying on the report is the husband who initiated the
annulment proceedings, not the physician who prepared the report. Plainly and
clearly, this does not fall within the claimed prohibition. Neither can his
testimony be considered a circumvention of the prohibition because his testimony
cannot have the force and effect of the testimony of the physician who examined
the patient and executed the report. (Krohn vs. CA, 52 SCAD 250, G.R. No.
108854, June 14, 1994).

FREEDOM OF EXPRESSION

Q-- State the constitutional provision respecting the freedom of expression.

24
ANS: No law shall be passed abridging the freedom of speech, of expression, or of the
press, or the right of the people to peaceably assemble and petition the
government for redress of grievances. (Art. III, Sec. 4, 1987 Constitution).

Q -- What is the basis for the constitutional guarantee?

ANS: It is said that it is better to have an irresponsible press than to have a timid press
putting it in the extremes, in reporting official acts and conduct of government
and public officials, it is better to have an irresponsible press than to have a timid
press. But in discharging the media responsibility as watchdog of public officials,
the newspaperman will always adhere to the ethical standards of truth and
fairness.

The theory behind freedom of expression is that ours is a democratic


society and so the only way to rule ultimately is by means of public opinion,
which is possible only when everyone can speak their minds and compete in the
free marketplace of ideas.

Q-- What are the three aspects of freedom of expression?

ANS: The three (3) aspects of freedom of expression are:

(1) Freedom from censorship;


(2) Freedom of circulation;
(3) Freedom from liability.

Q-- Is the election of government men into the board of a newspaper publication
violative of the freedom of the press? Explain.

ANS: Yes. In Liwayway Publishing Co., vs. PCGG, April 15, 1988, the Supreme Court
said that there should be no participation or intervention of government in the
management of the affairs of the press. The presence of government in the board
of newspaper publishing companies can cast a shadow and threaten the protected
and guaranteed press. (Ayer Production Pty. Ltd. Vs. Capulong, April 29, 1988).

Q-- Emiliano Jurado was asked to explain why he should not be cited for
contempt of the Supreme Court for his half-truth reports about the Magic
Seven judges in Makati and the Dirty Seven in the Supreme Court, all
members of the judiciary whom he imputed to be corrupt. He also wrote
about a party tendered by Equitable Bank where members of the Supreme
Court, Court of Appeals, other judges, prosecutors and lawyers were invited.
It turned out that it was the birthday of Atty. William Veto. He contended
that his acts were part of his freedom of expression. Rule on his contention.
Explain.

ANS: His contention is not proper. The Supreme Court said that:

(1) the utterance or publication by a person of falsehoods or half-


truths, or of slanted or distorted version of facts – or accusations
which he made no bona fide effort previously to verify, and which
he does not or disdains to prove—cannot be justified as a
legitimate exercise of the freedom of speech and of the press
guaranteed by the Constitution, and cannot be deemed an activity
shielded from sanction by that constitutional guaranty;

(2) such utterance or publication is also violative of “The Philippine


Journalist’s Code of Ethics” which inter alia commands the

25
Journalist to “scrupulously report and interpret the news, taking
care not to suppress essential facts nor emphasis,” and make it his
duty “to air the other side and to correct substantive errors
promptly.”

(3) that such an utterance or publication, when it is offensive to the


dignity and reputation of a Court or of the judge presiding over it,
or degrades or tends to place the courts in disrepute and disgrace or
otherwise to debase the administration of justice, constitutes
contempt of court and is punishable as such after due proceedings,
and

(4) that prescinding from the obvious proposition that any aggrieved
party may file a complaint to declare the utter or writer in
contempt, the initiation of appropriate contempt prerogative but
indeed its duty, imposed by the overmastering need to preserve and
protect its authority and the integrity, independence and dignity of
the nation’s judicial system.

Q-- Emil Jurado contended that the Supreme Court has no jurisdiction over him
as a member of the press or over his works as a journalist. Is the contention
correct? Why?

ANS: No, the Supreme Court may hold anyone to answer for utterances offensive to its
dignity, honor, or reputation, which tend to put it in disrepute, obstruct the
administration of justice, or interfere with the disposition of its business or the
performance of its functions in an orderly manner. He cannot say that he was
singled out. He is open to sanctions as journalist who has misused and abused
press freedom to put the judiciary in clear and present danger of disrepute and of
public odium and opprobrium, to the detriment and prejudice of the
administration of justice. That he is at the same time, a member of the bar has
nothing to do with the setting in of those sanctions, although it may aggravate
liability. (In Re Emil Jurado, 60 SCAD 364, Adm. Matter No. 93-2-0371).

Q-- How do you characterize the freedom of expression rights?

ANS: Freedom of expression, the right of speech and of the press is, to be sure, among
the most zealously protected rights in the Constitution. But every person
exercising it is, as the Civil Code stresses, obliged “to act with justice, give
everyone his due, and observe honesty and good faith.” The constitutional right
of freedom of expression may not be availed of to broadcast lies or half-truths—
this would not be “to observe honesty and good faith;” it may not be used to insult
others, destroy their name or regulation or bring them into disrepute—this would
not be “to act with justice” or “give everyone his due.”

Although honest utterances, even if inaccurate, may further the fruitful


exercise of the right of free speech, it does not follow that a lie, knowing and
deliberately published about a public official should enjoy immunity. A
knowingly false statement made with reckless disregard of the truth, does not
enjoy constitutional protection. For the use of calculated falsehood would put a
different cast on the constitutional question of protection of the writer. ( In Re:
Emil Jurado, 60 SCAD 364, Adm. Matter No. 93-2-0317).

Q-- Can the writer of a news item or report which is not true or any half true
refuse to reveal his source of the news invoking RA No. 53 as amended by RA
1477 which shields a write from forced revelation of confidential news
sources? Why?

26
ANS: No. Surely it cannot be postulated that the law protects a journalist who
deliberately prints lies or distorts the truth; or that a newsman may escape liability
who publishes derogatory or defamatory allegations against a person or entity, but
recognizes no obligation bona fide to establish beforehand the factual basis of
such imputations and refuses to submit proof thereof when challenged to do so. It
outrages all notions of fair play and due process, and reduces to uselessness all the
injunctions of the Journalists Code of Ethics to allow a newsman, with all the
potentials of his profession to influence popular belief and shape public opinion,
to make shameful and offensive charges destructive of personal or institutional
honor and repute, and when called upon to justify the same, cavalierly beg off by
claiming that to do so would compromise his sources and demanding acceptance
of his word for the reliability of those sources. (In re: Emil Jurado, 60 SCAD
364, Adm. Matter No. 93-2-0371).

Q-- Philippine Press Institute contended that the removal of the press from the
VAT exemption while maintaining those granted to others in
unconstitutional, as it discriminated against the press. It even contended that
even nondiscriminatory taxation of constitutionally guaranteed freedom is
unconstitutional. Rule on the contention.

ANS: The contention is not correct. As a rule, the press is not exempt from the taxing
power of the State. What the constitutional guarantee of free press prohibits are
laws which single out the press or target a group belonging to the press for special
treatment or which in any way discriminate against the press on the basis of the
content of the publication. There is none in RA 7716. Since the law granted the
press a privilege, the law could take it back anytime without offense to the
Constitution. By granting exemptions, the state does not forever waive the
exercise of its sovereign prerogatives. In withdrawing the exemption, the law
merely subjects the press to the same tax burden to which other business have
long ago been subject. (Tolentino vs. Sec. of Finance).

Q-- Is the imposition of value added tax upon publishers of newspapers and
magazines violative of the freedom of the press? Why?

ANS: No, because the press is not immune from non discriminatory taxes imposed on
business. The press was not singled out because other business transactions
which were previously exempt from the value added tax have also been subjected
to it. The fee being imposed for the registration for the BIR is not being imposed
for the exercise of the freedom of the press but is an administrative fee being
imposed to defray the cost of registration. (Tolentino vs. Sec. Of Finance, 54
SCAD 671, G.R. No. 115455, August 25, 1994).

Q-- X, a newspaper woman, was invited by the military during marital law to
determine her way of thinking based on her writing. Is there prior restraint
on the freedom of expression of X? Why?

ANS: Yes. In Babet vs. Minister of National Defense, 132 SCRA 316, it was ruled that
an invitation given to a journalist by the military to determine her way of thinking
based on past writings has a chilling effect even on future writings and thus,
amounts to prior restraint.

Q-- Respondent university granted the students a permit to hold a rally at the
basketball court. Instead of limiting it to the area designated, they went
outside of it and disturbed the classes. They were suspended for one (1) year.
The act of the school was questioned as violative to their right to peaceably
assemble. Is their contention correct? Explain.

27
ANS: Yes. The rights to peaceably assemble and of free speech are guaranteed to the
students. If the assembly is held in the school premises, a permit must be sought
from the school authorities, who have no power to deny the request arbitrarily but
may impose conditions as to the time and place to avoid disruption of classes or
stoppage of work of the non-academic personnel. While there was a violation of
the terms of the permit, the penalty was disproportionate to the offense. One
week suspension was enough. (Malabanan vs. Ramento, 129 SCRA 359; See
also BP 880).

Q-- May a newspaper reporter or editor who published an inaccurate account of


a close-door investigation of a judge be cited for contempt? Why?

ANS: Yes. In Re: Lozano vs. Quevedo, 54 Phil. 801, the Supreme Court said:

“The rule is well established that news paper publications tending


to impeded, obstruct, embarrass, or influence the courts in the
administration of justice in attending a suit or proceeding constitute
criminal contempt which is summarily punishable by the courts. The rule
is otherwise after the case ended. It is also regarded as an interference with
the work of the courts to publish any matters which their policy requires
should be kept private, as for example the secrets of the jury room, or
proceedings in camera. ( 6 R.C.L., pp. 508-515).

The organic act wisely guarantees freedom of speech and of the press.
This constitutional right must be protected in each fullest extent. The court has
heretofore given evidence of its tolerant regard for changes under the Libel Law
which come dangerously close to its violation. We shall continue in this chosen
path the liberty of the citizen must be preserve in all of its completeness. But
license or abuse of liberty of the press and of the citizen should not be confused
with liberty in its true sense. As important as in the maintenance of an unmuzzled
press and the free exercise of the rights of the citizen is the maintenance of the
independents of the judiciary. Respect to the judiciary cannot be had if persons
are privileged to scorn a resolution of the court adopted for good purposes and if
such persons are to be permitted by subterranean means to diffuse inaccurate
accounts of confidential proceedings to the embarrassment of the parties and the
court. (See also In Re Sotto, 82 Phil. 575).

Q-- In the column of Atty. Emil Jurado he wrote: “well placed sources at the
Supreme Court, the court upheld a long-standing legal precedent known as
the Hernandez Doctrine and reaffirmed that the crime of rebellion
complexed with murder and other common offenses does not exist.” He has
required to explain why he should not be dealt with contempt, why he had to
publish false statements relative to the Court’s action on a pending case or
otherwise indulging in speculation or conjecture or airing illicit information.

In his “Compliance” with the show cause resolution, he justified his at


under the freedom of the press and the right of the people to information on
matters of public concern. What is contention proper? Why?

ANS: No. While his rights are guaranteed, a publication, however, relating to judicial
action in a pending case which tends to impede, embarrass, or obstruct the court
and constitutes a clear present danger to the administration of justice is not
protected by the guarantee of press freedom.

What is fundamental is the principle of confidentiality of all actuations of,


or records or proceedings before a court in a pending action, which are not
essentially public in character. As far as the proceedings are concerned, those
confidential matters include, among others, raffling of cases, deliberations and
discussions of the en banc or the division, drafts of decisions ands resolutions

28
agreed upon by the members in consultation. (In Re: Atty. Emiliano Jurado, Jr.,
Adm. Matter No. 90-5-2373, July 12, 1990).

Q-- May students who demonstrated in a school in the exercise of the freedom of
assembly be bared from enrolling? Why?

ANS: No. The exercise of freedom of assembly could not be a bases for barring
students from enrolling. The schools and its officials are enjoined from acts of
surveillance, black listing, suspension and refusal to re-enroll. Schools however,
may refuse to re-enroll students who clearly incurred marked academic
deficiency.

The academic freedom enjoyed by institutions of higher learning includes


the right to set academic standards to determine under what circumstances failing
grades suffice for the expulsion of students. Once it was done, however, that
standard should be against those students who exercise their constitutional rights
peaceable assembly and free speech if it does so, then there is a legitimate
grievance by the students thus prejudice to invoke their right to equal protection
being disregarded.

The school cannot inflict high-disproportionate penalty of denial of


enrollment and the consequent failure of senior students to graduate, if in the
exercise of the cognate rights of free speech and peaceable assembly, improper
conduct could be attributed to them. (Non vs. Damis II, G.R. No. 89317, May 20,
1990).

Q-- If the SEC denies the registration of an association which seeks the
Statehood of the Philippines in the USA is this tantamount to a abridging the
freedom of association? Why?

ANS: No. The freedom of association can be exercised without individual or group of
individuals incorporating themselves to acquire juridical personality distinct and
separate from their individual personalities as a nature person, likewise with the
freedom of expression, which can be exercised without incorporation.

If all that petitioners intent to do is to conduct a study, survey, the search


and subsequently publish or disseminate the results of such study, survey and
research as a corporation, which is not an objectionable purpose, then, the
incorporation should be done in accordance with legal requirements provided
under the Corporation Code specifically, the provisions of Section 17 of
Corporation Code. Pursuant to said section, petitioners should given a reasonable
time to correct or modify the objectionable portions in the subject of
incorporation. ( Phil. Statehood, USA, Inc., vs. SEC, et al., G.R. No. 82493, Jan.
24, 1990).

Q -- After Atty. Raul Gonzales was stripped of his power of investigation as


Tanodbayan pursuant to the 1987 Constitution, he hurled several attacks on
the Supreme Court through the media. He was suspended on the basis of the
same. Rule on the validity of his suspension, whether it violated his freedom
of speech.

ANS: His suspension is valid. Respondent Gonzales is entitled to the constitutional


guarantee of free speech. No one seeks to deny him that right list of all, this
court. What respondent seems unaware of is that freedom of speech and
expression, like all constitutional freedoms, is not absolute and that freedom of
expression needs occasion to be adjusted to and accommodated with the
requirement of equally important public interest. One of this fundamental public
interest is the maintenance of the integrity and orderly functioning of the
administration of justice. There is no animosity between free expression and the

29
integrity of the system of administering justice. For the protection and
maintenance of freedom of expression itself can be secured only within the
context of a functioning and orderly system of dispensing justice, within the
context, in other words, of viable independent institution for delivery of justice
which are accepted by the general community. As Mr. Justice Frankfurter puts it:
“xxx A free press is not to be preferred to an independent judiciary, nor an
independent judiciary to a free press. Neither has primacy over the other; both are
indispensable to a free speech. “(Zaldivar vs. Sandigan Bayan and Raul
Gonzales, G.R. No. 74690-707, and 80578, Feb. 1, 1989).

Q-- May not Atty. Gonzales invoke his right to expression as a lawyer? Why?

ANS: No. A lawyer’s right to free expression may have been more limited than that of a
layman. A lawyer, acting in a professional capacity, may have fewer rights of free
speech than would a private citizen. Neither the right of free speech nor the right
to engaged in political activities be construed or extended as to permit any such
liberties to a member of the bar. A layman may, perhaps, pursue his theories of
free speech or political activities until he runs afoul of the penalties of libel or
slander, or into some infraction of the statutory law. A member of the bar can, and
will, be stopped at the point were he infringes the Canons of Ethics; and if he
wishes to remain a member of the bar, he will conduct himself in accordance
therewith. (Zaldivar vs. SB, G.R. No. 79690-707; Zaldivar vs. Gonzales, G.R.
No. 80578, Oct. 7, 1988).

Q-- Senator Salonga in a speech stated that there is a need for a violent struggle
in the Philippines should Pres. Marcos failed to institute reforms. He was
charged under the Anti-Subversion Law. Rule on the validity of the charge,
stating your reason.

ANS: He should been charged. There was no teaching of the moral propriety of a resort
to violence, much less on advocacy of force, or a conspiracy to organized the use
of force against the duly constituted authorities. The alleged remark was not a
threat to the government. The speech did not constitute incitement, but merely an
expression of opinion. (Salonga vs. Pano, 134 SCRA 438). Political discussion is
within the protective clause of freedom of speech and expression. It cannot be
construed a subversive.

If the speech, however, incites immediate action of the people listening to


the speaker to resort violence, then, that is not part of the protection. There is
immediate action.

Q-- X, the mother of Moises Padilla, filed an action for some of money against Y
under a contract they signed which allowed the filming of the life of Moises
Padilla. Y refused to pay, contending that under his freedom of speech and of
the press, he had the right to express his thoughts in the film concerning the
life of Padilla. Is the contention proper? Why?

ANS: No. Being a public figure does not automatically destroy completely a persons
right to privacy. The right to disseminate public information does not extend to a
fictional representation of a person even if he is a public figure.

In accordance with the balancing of interest test, the validity of the contract must be
upheld because the limits of freedom of expression are reached when expression catches
upon matters of private concern. (Lagunzad vs. Gonzales, 92 SCRA 476).

Q -- Respondent Katigbak permitted the showing of the film “Kapit sa Patalim”.


It was however, classified as “for adults only” which petitioner questioned. Discuss
the validity or invalidity of the act of respondent. Cite your reasons.

30
ANS: The act is valid. Motion pictures are a medium of communication of ideas and
are covered by the constitutional guarantee of freedom of expression. Lack of
previous restraint is necessary for the exercise of such right. The power of the
Board of Review for Motion Pictures and television is limited to the classification
of films. The law, however, frowns of obscenity. Respondent did not act with
grave abuse of discussion in classifying the film as “for adults only” because
some of its contents are not fit for the young. Some scene showed some women
erotically dancing naked. Another scene depicted lesbians kissing and caressing.
(Gonzales vs. Katigbak, 137 SCRA 717).

Q-- Suppose there are changes to be made and the permit should not be issued
unless the same are made. Is the action proper? Why?

ANS: No, the power is limited to the classification and not to the issuance or denial of
permit because that is a previous restraint tantamount to censorship. However,
would respect to television, the principle is difference. Parens patriae will come
into protect the children. The clear and present danger rule will become a valid
test. (Gonzales vs. Katigbak, supra).

Q-- Is the restriction on the part of the military officer against issuing any press
statements during the period of his house arrest valid without infringing his
freedom of speech? Explain your answer.

ANS: Yes, it is valid. The restriction imposed on a military officer as a condition for his
“house arrest”, particularly that he may not issue any press statements or give any
press conference during the period of his detention, such condition are justified by
the requirement of military discipline. It cannot be gain-said that certain liberties
of persons in a military service including the freedom of speech, may be
circumscribed by the rule of military discipline. Thus, to a certain degree,
individual rights may be curtailed, because the effectiveness of the military in
fulfilling its duties under the law depends to a large extent on the maintenance of
discipline within each ranks. Hence, lawful orders must be followed without
question and rules must be faithfully complied with respective of a soldier’s
personal views on the matter. (Kapunan, Jr., vs. AFP Chief of Staff etc., et al.,
G.R. No. 83177, Dec. 6, 1988).

Q-- Senator Juan Ponce Enrile sought to prevent the filming of the docudrama
on the February 1986 Revolution known as “Dangerous Life”. He invoked
his privacy. He sought to forbid the use of his name. The RTC issued an
injuction. Is the injuction valid? Why?

ANS: No. Movies come within the protection of the free speech clause. The
circumstance that the production is a commercial activity expected to yield profit
is not disqualification for availing of the freedom of speech and of the press or
expression. The right to privacy cannot be invoked to resist publicity of matters
of public interest. Senator Enrile is a public figure, whose right to privacy is
narrower than that of an ordinary citizen. He has not retired from public service.
The injuction is a prior restraint of the freedom of expression.

With respect to Honasan, by turning a fugitive from justice, he had


forfeited any right to claim privacy. (Ayer Production vs. Capulong, G.R. No.
82380, 82398, April 29, 1988).

Q-- X, a practicing lawyer, sent a letter to the chairman of the Anti-Smuggling


Action Center denouncing certain agents of the ASAP for allegedly
subjecting his client to indignities and taking a necklace and bracelet and her
son’s watch plus certain amount of money. The agents were charged but

31
were exonerated. He was prosecuted for libel because the Bulletin Today
published the news about the letter. He filed a motion to Quash, but it was
denied. If you were the ponente on appeal, how would you decide? Explain.

ANS: I would rule that the letter is a privileged communication. As a lawyer and
citizen, he has the right to complain against official abuses. He acted in good
faith in for justifiable ends in making the alleged libelous imputations. The
vitality of republicanism derives from an alert citizenry. When citizen discover
anomalies, it is their duty to expose in denounce it. The sins of the public are
imputable to those who commit them. There are also imputable to those who by
their silence or inaction permit or encourage their commission. (Manuel vs. Pano,
G.R. No. 4679, April 17, 1989; See also Lopez vs. CA, 34 SCRA 116; Bulletin
Pub. Corp. vs. Noel, G.R. No. 76565, Nov. 9, 1988).

Q-- Is the freedom of expression absolute? Why?

ANS: No. It is subject to police power of the State, for the protection of public peace,
morals, order, safety and general welfare. While a person may exercise such
freedom, the publishers of news magazines should check the sources of their
information to ensure the publication of the truth. Freedom of the press like all
other freedoms should be exercised with responsibility. (Newsweek vs. IAC,
G.R. No. 6359, May 30, 1987.).

Q-- State the nature of the clear and present danger rule.

ANS: Under the clear and present danger rule, there must be substantive evil which
must be serious and the degree of occurrence is imminent. Time element is of the
essence as there is a casual relationship between the utterance and the publication
and the evil sought to be prevented. Substantive evil will occur as a matter of
course because of the utterance and the publicity. There is no time to avert the
danger by an information campaign .

Q-- ABC Organization asked for a permit to use Luneta from 10 a.m. to 6 p.m.
but it was denied because of the recommendation of the police that trouble
might arise. Instead, they were asked to use Liwasang Bonifacio. Is the
denial valid? Why?

ANS: No. The officers must grant the permit because they cannot pinpoint any grave or
imminent danger to justify the denial. Mere recommendation of the police and
existence of proof of clear and present danger is not enough reason to withhold
the permit. (Labor Advisory and Consultative Council vs. Lopez, G.R. No. 82844,
April 29, 1988).

Q-- The Civil Liberties Union asked for permit to use a portion in front of the
Army and Navy Club to express their views concerning the nuclear weapon
free provision on the Constitution. The respondent recommended the use of
Plaza Moriones in Tondo, Manila contending that there is clear and present
danger of substantive evil rising at the demonstration. Is the denial valid?
Why?

ANS: No, the denial is a grave abuse of discretion. In fact the proffer of another venue
is abuse of discretion. Considering however, the proximity of the area of the
Army and Navy Club to the US Embassy, the permit should be granted subject to
appropriate limitations such as:

1. they should not obstruct free access and egress to the Army and Navy
Club;

32
2. they should observe not less than 500 feet distance from the US Embassy.

The conditions are pursuant to Ord. No. 7259of the City of Manila
prohibiting the holding of rallies within a radius of 500 feet from foreign missions
or chancery. It implements the commitment under the 1961 Vienna Convention to
protect premises of foreign missions against intrusion or damage and prevent
disturbance of peace and dignity. (Civil Liberties Union vs. Lopez, G.R. No.
83830, June 10, 1988; See also German vs. Barangan).

Q-- Before the rally may be held, outline the procedure under the Public
Assembly Act.

ANS: The following procedures should be followed under the Public Assembly Act:

1. An application for a permit must be filed with the Mayor’s office at least
Five (5) working days before the rally;

2. It must be filed in writing stating the names of the organizations and the
leaders, dates, size of the crowd, manner of the use of street, sound system
to be used;

3. If the Officer of the mayor refuses to accept, it is enough that a copy be


posted in the premises of the Office of the Mayor;

4. The Mayor has two working days to act on the application. If no action, is
made, it is deemed granted. If the Mayor determines that under the clear
disorder, he should not deny it. A hearing should be conducted. If not
satisfied that no danger will result, then the Mayor may deny it;

5. If denied, the applicant can go to court, but not the Supreme Court. The
court has 24 hours to act on the issue. If it is reversed, it is final. If it is
against the applicants, they can appeal to the Supreme Court.
(Public Assembly Act, BP Blg. 880).

Q-- When a permit not necessary in the conduct of a rally?

ANS: There is no need for a permit when the rally is conducted in:

1. freedom parks;
2. inside private properties;
3. campuses of state colleges and universities.

Q-- If the rally is done inside a private property, what should the rallyists do?

ANS: They have to ask for permit from the owner of the property.

Q -- During a rally, is police presence allowed? What rule should be followed?

ANS: Police presence is allowed but for purposes of maintenance of peace and order
only. They should be in full uniform and 100 meters away from the rallyists.
There should be no firearms and their names should be visibly written on their
uniforms. If there is violence, they should give warnings and if it persists, they
can fight back. (B.P. Blg. 880).

Q-- If the rallyists have no permit, what should the police do?

ANS: The police can disperse them, but they should not use violence.

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Q-- During a rally, what are the duties of the rallyists?

ANS: They should do the following:

1. The leaders should inform the members of their duties;

2. They should police their ranks;

3. They should cooperate with local officials in maintaining peace and


order. (B.P. Blg. 880).

Q-- At the height of student demonstrations, Nelson Navarro, et al., applied for a
permit to use Plaza Miranda as their site of a student’s demonstration.
Mayor Villegas denied the application and instead suggested the use of the
Mehan Garden as the use of Plaza Miranda would cause undue disruption of
business and that lessons from past demonstrations of the group proved to be
destructive to properties in the area. Was the action of the Mayor correct?
Why?

ANS: Yes, The Mayor can modify a permit for a rally. He can use reasonable discretion
to determine and specify streets or public places to be use by rallyists to lessen
possibility of disorder. The Mayor did not absolutely deny or refuse to issue a
permit. The freedom of speech and of the press, the right of assembly and petition
are cognate with and inseperable from each other. The sole justification of the
limitation is the existence of danger grave enough to pose a serious threat to
public safety, morals, health and legitimate public interest. (Navarro vs. Villegas,
31 SCRA 730).

Q-- Mayor Ramon D. Bagatsing refused to give petitioner a permit to hold a rally
at Luneta because of reports that subversive elements planned to disrupt the
rally. He wanted the group of the petitioner to hold it in an enclosed area,
hence, a petition for mandamus was filed. If you were the judge, would you
grant the petition? Why?

ANS: If I were the judge, I would grant the petition. There can be no previous restraint
on the rights of free speech and peaceful assembly unless there is clear and
present danger of a substantive evil that the state has a right to prevent. There can
be no legal objection, absent the existence of a clear and present danger of a
substantive evil, on the choice of Luneta, streets and parks have immemorially
been used for purposes of assembly. There can be no valid objection to the use of
the streets to the gates of the United States Embassy. The requirement for a
permit must be construed as authorizing respondent to consider the time, place
and manner of the rally to preserve public convenience. While the Vienna
Convention imposes on the receiving state the duty to protect the premises of
foreign missions, there is no clear and present danger. The mere assertion that
subversives may infiltrate the ranks of demonstrators is not sufficient. It is the
duty of the authorities to provide police protection to those exercising the right to
peaceful assembly and freedom of information. Respondent cannot invoke the
ordinance prohibiting rallies within 500 feet of any foreign mission or chancery.
There is no showing the distance between the chancery and the embassy gates is
less than 500 feet. (Reyes vs. Bagatsing, 125 SCRA 553).

The right cannot be abridged on the plea that it may be exercised in some
other place. The rallyists should apply ahead of time to give public officials time
to appraise whether there is valid objection to its grant. If there is clear and
present danger that trouble may arise, the applicant should be heard and there may
be judicial recourse if necessary.

34
Q-- Petitioner’s radio station was closed on the basis of the allegation that it was
being used to incite people to rebellion. He filed a petition to compel its
reopening on the ground he was denied due process, since no hearing was
conducted before its closure. Will the petition prosper? Why?

ANS: Yes, the petition will prosper. All forms of media enjoy freedom of speech and
expression. The test for limitation on freedom of expression is the clear and
present danger rule. The requirements of due process should be followed before a
radio station may be closed. (Eastern Broadcasting Corp. vs. Dans, 137 SCRA
628).

Q-- Respondent Araneta University Foundation refused to accept the petitioners


for enrollment because they participated in a demonstration to voice their
opposition to the abolition of the Institute of Animal Sciences alleging that
the created disturbance on the campus. Petitioners filed a petition for
mandamus to compel their re-enrollment. Is the petition proper? Why?

ANS: Yes, because the penalty of denial of enrollment is highly disproportionate to the
infraction of university rules if in the exercise of their rights of free speech and
peaceable assembly, proper conduct could attributed to the petitioner. However,
an educational institution may drop a students if failing grades under the standards
set by it and applied to all similarly situated. (Arreza vs. Gregorio Araneta
University Foundation, 137 SCRA 94).

Q -- Respondent Technological Institute of the Philippines barred petitioners


from enrollment from holding demonstration. Three other petitioners had
failing grades. Will mandamus lie to compel TIP to accept them? Explain.

ANS: Would respect to the student who participated in the demonstration, mandamus
will lie. Students enjoy freedom of expression and the right of peaceable
assembly.

Petitioners have a valid cause for complaints inasfar as their exercise of


the constitutional rights of free speech and peaceful assembly was visited with
expulsion. However, the petitioners who had failing grades can be denied
enrollment. The constitutional provision on academic freedom enjoyed by
institutions of higher learning justifies such refusal. Academic freedom includes
the right to set academic standard to determine under what circumstance failing
grades suffice for the expulsion of students. (Villar vs. Technological Institute of
the Philippines, 135 SCRA 106).

Q-- Petitioner Adiong questioned the validity of a Comelec Resolution dated


January 13, 1992, prohibiting the posting of stickers or decals on mobile
places, public or private, and limiting their location or publication to the
authorized posting areas fixed by it. He contended that as a neophyte
candidate for senator, he would suffer grave and irreparable injury as the
posting of decals and other stickers on cars ands other moving vehicles would
be his least medium to inform the electorate that he was a senatorial
candidate. Decide.

ANS: The Comelec’s prohibitions on posting of decals and stickers on mobile places
whether public or private is void on constitutional grounds, for the following
reasons:

(1) The prohibition unduly infringes only the citizen’s fundamental right of
free speech enshrined in the Constitution (Sec. 4, Art. III). There is no
public interest substantial enough to warrant the kind of restriction
involved in this case. The posting of decals and stickers in mobile places

35
like cars and other moving vehicles does not endanger any substantial
government interest. There is no clear public interest threaten 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 also be so substantive as to justify a clamp over
one’s mouth or a writing instrument to be stilled.

Significantly, the freedom of expression curtailed by the


questioned prohibition is not so much that of the candidate or the
political party. 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 one’s the car owner agrees to have it placed on
his private vehicle, the expression becomes statement by the
owner, primarily his own and not of anybody else. (Adiong vs.
Comelec, G.R. No. 103956, March 31, 1992).

(2) The questioned prohibition premised on the statute and as couched in their
resolution is void for overbreadth.

A statute is considered void for overbreadth when “it offends the


constitutional principle that the governmental purpose to prevent
control activities constitutionally subject to state regulations may
not be achieve by means which sweep unnecessarily, broadly and
thereby invade the area of protected freedom. “(Zwickler vs.
Koota, 19L Ed. 2 d 444 [1967]).

Q -- Is the Comelec prohibition on the posting of decals and stickers violative of


the property rights of the candidate and the owners of the cars, etc.?
Explain.

ANS: Yes. In Adiong vs. Comelec, G.R. No. 103956, March 31, 1992, it was said that
the prohibition intruded into the property rights of the candidate guarantee rights
of the candidate guaranteed in that no person shall be deprived of his property
without due process of law (Art. II, Sec. 1, Constitution). Property is more the
mere thing which a persons owns. It includes the right to acquire, use and dispose
of it. In the posting of decals and stickers on cars and other moving vehicles, the
candidate needs the consent of the owner of the vehicle. In such a case, the
prohibition will not only deprived the owner who consents to such posting of the
decals and stickers of the use of his property but more importantly in the process,
it would deprive the citizen of his right to free speech and information.

Q-- Do you consider the posting of stickers and decals of candidates in your car
apart of your freedom of expression? Why?

ANS: Yes. There are many candidates whose names alone evoked qualifications,
flatforms, programs and ideologies which the voter may accept or reject. When a
person attaches a sticker with such a candidate’s name of his car bumper he is
expressing more than the name; he is espousing ideas. A review of the validity of
the challenged regulation includes its effects in today’s particular circumstances.
We are constraint to rule against the Comelec prohibition. (Adiong vs. Comelec,
March 31, 1992).

Q-- The Comelec issued a resolution banning mass media columnists,


commentators and announcers from using their columns and radio programs
in campaigning against the Cordillera Organic Act. Is the resolution valid?
Why?

36
ANS: No, it is unconstitutional because it restricted the freedom of expression of the
mass media, columnist or commentator. (Sanidad vs. Comelec, 181 SCRA 529).

Q -- R.A. 6646, Section 11(b) prohibits paid political advertisements by


candidates. It was questioned as unconstitutional as it violated the freedom of
speech and of access to media by the candidates. Is the contention correct?

ANS: No. What the law limits is paid partisan political advertisements other than
Comelec time and space as provided for under Section 90 and 92 respectively of
the Omnibus Election Code (BP 881). It is conceded that it somehow restricts the
right of free speech and of access to media by candidates, rich or poor, of the
quality of opportunity to proffer oneself for a public office without regard to the
level of financial resources that one may have at his disposal. (NPC vs. Comelec,
207 SCRA 1, March 1, 1992).

POLITICAL LAW BAR REVIEW 2001

Q– What is political law?

ANS: Political law is that branch of public law which deals with the organization and
operations of the governmental organs of the State and defines the relation of the
State with the inhabitants of its territory.

Q -- What is constitutional law?

ANS: It is the study of the maintenance of the proper balance between authority as
represented by the three (3) inherent powers of the State and liberty as guaranteed
by the Bill of Rights.

Q -- What is administrative law?

ANS: It is that branch of public law which fixes the organization of the government,
determines the competence of the administrative authorities who execute the law,
and indicates to the individual, remedies for the violation of his rights.

Q– What is a Constitution?

ANS: A Constitution is the fundamental organic law of a State which contains the
principles on which government is founded, and regulates the division and
exercise of sovereign powers. (16 C.J.S Note 1, p.20). It is that body of rules and
maxim in accordance with which the powers of sovereignty are habitually
exercised. (Political Law, Neptali A. Gonzales, 1966 edition, p. 61, citing Cooley,
Constitutional limitations, 8th Ed., p. 4)

Q– Are there any distinction between a Constitution and a statute?

ANS: Yes. A Constitution is a legislation direct from the people; a statute is a legislation
from the people representatives. A Constitution states general principles; a statute
provides the details of the subject of which it treats. A constitution is intended not
merely to meet existing condition; a statute is intended primarily to merely
existing conditions only. A Constitution is the fundamental law of the State to
which all other laws and statute must conform. (Neptali A. Gonzales, Political
Law, citing Malcolm, p. 61)

37
Q– Is the constitution a conferment of the powers or a limitation of the same?

ANS: It is both a conferment of powers and limitation of the same. The constitution
allocates powers to the three (3) departments of the government. It also provides
for limitations on the exercise of such powers, like the provisions of the Bill of
Rights.

Q– What are the essential part of the written Constitution?

ANS: They are:

(1) Constitution of liberty which provides for the civil and political rights of
citizen and the limitation of the powers of the government to secure those
rights.

(2) Constitution of the government which provides for the organization of the
government, and enumerates the powers of the same; and

(3) Constitution of sovereignty which provides the manner of changing the


fundamental law as making amendments thereto.

Q– What is meant by the statement, “the Constitution is a social contract?”

ANS: The Constitution as a social contract means that it is where the people have
surrendered their sovereign powers to the State for the common good. Hence, as
held by Marcos vs. Manglapus, et al., G.R. No. 88211, September 15, 1959, lest
the officers of the government exercising the powers delegated by the people
forget and the servants of the people become a rulers, the Constitution reminds
everyone that “sovereignty resides in the people and all government authority
emanates from them.” (Sec. 1, Art. II, 1987 Constitution).

Q– What is a State?

ANS: It is a community of persons, more or less numerous, permanently occupying a


definite portion of territory, independent of external control, and processing a
government to which a great body of inhabitants render habitual obedience.
(Collector of Internal Revenue vs. Campos Rueda, 42 SCRA 23).

Q– What are the elements of a State?

ANS: The elements of a State are: people; territory; sovereignty; and government.

Q– How is a State distinguished from nation? From government?

ANS: State is a legal or juristic concept; nation is an ethic or racial concept.

Q– What comprises the national territory of the Philippines?

ANS: The national territory comprises the Philippines archipelago, with all the islands
and waters embraced therein, and all other territories over the Philippines has
sovereignty or jurisdiction, consisting of its terrestrial, fluvial and aerial domains,
including its territorial sea, the seabed, the subsoil, the insular shelves, and other
submarine areas. The waters around, between, and connecting the islands of the
archipelago, regardless of their breadth and dimensions, form part of the internal
waters of the Philippines, (Art. I, 1987 Constitution)

38
Q– What is the archipelago doctrine and how is it adopted in the Constitution?

ANS: It is a principle where appropriate points are set along the coast of the archipelago
including the outermost islands and then connect those points with straight lines.
All waters within the baselines are considered internal waters of the archipelago
state. It is adopted in the constitution when it says that, “ the waters, around,
between, and connecting the islands of archipelago, regardless of their breadth
and dimension, form part of the internal waters of the Philippines.”

Q– Is the archipelago principle a part of international law?

ANS: No. The archipelago principle is not a part of international law. Until The
International Convention on the Law of the Sea comes into force and effect, it is
not a part of international law. It is merely a part of municipal law and therefore, it
depends upon our capacity to enforce our own claim.

Q– What is a government?

ANS: Government is defined as that institution or aggregate of institutions by which an


Independent society makes and carries out those rules of action which are
necessary to enable men to live in a social State, or which are imposed upon the
people forming that society by those who possess the power or authority of
prescribing them. Government is the aggregate of authorities which rule a society.
(U.S. vs. Dorr, 2 Phil. 332).

Q– What are the distinction between de jure and de facto governments?

ANS: (1) A de jure government is a government of right; a government established


according to the Constitution of the State and lawfully entitled to a recognition
and supremacy and the administration of the State but is actually ousted from
power or control, it is true and lawful government. (Gonzales, Phil. Political Law,
1966 Edition, p. 16 citing Aruego, pp. 133-136)

(2) A de facto government, on the other hand, is that government which


unlawfully gets the possession and control of the rightful legal government, and
maintains itself there by force and arms against the will of the rightful
government of fact. (Gonzales, Phil. Political Law, 1966 Edition, p. 16, citing
Black’s Law Dictionary; Co Kim Chan vs. Valdez Tan Keh, 75 Phil. 113)

Q– Are there any distinction between the constituent and ministrant functions of
government? Explain.

ANS: None. Under the expanded provisions of the Constitution on social justice, what
used to be optional functions of the government became mandated or imposed,
hence, they are now mandatory. In ACCFA vs. Federation of Labor Unions, 30
SCRA 649, and PVTA vs. CIR, 65 SCRA 416, the supreme Court, explaining the
irrelevance of the distinctions between the two (2) functions said that the growing
complexities of modern society have rendered the traditional classification of the
functions of the government quite unrealistic, not to say obsolete. The areas which
used to be left to private enterprise to enter optionally and only because it was
better equipped to administer for the public welfare than any private individual or
group of individuals continue to lose their well-defined boundaries and to be
undertaken in its sovereign capacity if it is to meet the increasing challenges of
the times. Here, as almost everywhere else, the tendency is undoubtedly towards a
greater socialization of economic forces,. Here, of course, this development was
envisioned, indeed adopted as a national policy by the Constitution itself in its

39
declaration of principles concerning the promotion of social justice. In PHHC vs.
CIR, et al., L-31890, May 29, 1987, it was also held that considering the social
justice provisions of the Constitution, the constituent-ministrant classification of
functions of government had become unrealistic, if not obsolete. In its earlier
ruling, it gave its assent to a social-political philosophy espousing a greater
socialization of economic forces, as there is nothing objectionable in the
government, undertaking in its sovereign capacity activities which by the
constituent-ministrant test would have been merely optional.

Q– What is the doctrine of parens patriae?

ANS: It means parent of the country. The State acts as the guardian of persons under
disabilities.

Q -- Pilapil had an acknowledged natural child with Cabanas. He took out a


policy on his life and made his acknowledge natural daughter his sole
beneficiary, but stipulated that in the event of his death, the proceeds of his
life insurance policy shall be administered by his brother in accordance with
the policy stipulations. Cabanas the mother of the acknowledge natural child,
filed a compliant in order to recover the administration of the property and
invoked Art. 320 (now Art. 225, Family Code) of the New Civil Code which
provides that “the father, or in his absence, the mother, is the legal
administrator of the property pertaining to the child under parental
authority.” There seems to be a clash between the provisions of Art. 320 of
the Civil Code and a stipulation in the life insurance policy. Which right will
you now prevail?

ANS: It should be Article 320 of the New Civil Code (now Art. 225 of the Family Code)
not only by virtue of its explicit provision but because it is the legal provisions
that will give meaning and substance to Art. II, Sec. 4 (now Sec. 12) of the
Constitution which provides that “The State shall strengthen the family as a basic
social institution.” The child is not a creature of the State.

In emphasizing the doctrine of parens patriae, the Supreme Court said:

“The appealed decision is supported by another cogent consideration. It is


buttressed by the adherence to the concept that the judiciary, as an agency of the
State acting as a parens patriae, is called upon a pending suit or litigation affects
one who is a minor to accord priority to his best interest. It may happen, as it
occur here, that family relations may press their respective claims. It would be in
more consonance not only with the natural order of things but the tradition of the
country for a parent to be preferred. It could have been different if the conflict
were between father and mother. Such is not the case at all. It is a mother
asserting priority. Certainly the judiciary as the instrumentality of the State in its
role of parens patriae cannot remain insensible to the validity of her plea. In a
recent case, there is this quotation from an opinion of the United States Supreme
Court: “This prerogative of parens patriae is inherent in the supreme power of
every State, whether the power is lodge in a royal person or in the Legislature,
and has no affinity to those arbitrary powers which are sometimes exerted by
irresponsible monarchs to the great detriment of the people and the destruction of
their liberties. If, as the Constitution so wisely dictates, it is the family as a unit
that has to be strengthened, it does not admit of doubt that even if a stronger case
were presented for the uncle, still deference to a constitutional mandate would
have led the lower court to decide as it did.” (Cabanas vs. Pilapil, 58 SCRA 94).

Q– Parens patriae is exercised by the State for the purpose of seeing to it that the
welfare of the citizens are taken cared of. Does this apply in the criminal
cases? Give an example.

40
ANS: Yes, it is also applicable in criminal cases, like in People vs. Casipit, 51 SCAD
482, G.R. No. 88229, May 31, 1994, where it was said that where the victims of
rape are of tender years, there is a marked receptivity on the part of the courts to
lend credence to their version of what transpired, a matter not to be wondered at,
since the State, as parens patriae, is under obligation to minimize the risk of harm
to those who, because of their minority, are not yet able to fully protect
themselves.

Q– What is an “Act of State?”

ANS: It is an exercise of sovereign power which cannot be challenged, controlled or


interfered with by municipal courts. It refers to the political acts of a State which
are exercised as exclusive prerogatives by the political departments of the
government and not subject to judicial review and for the consequences of which,
even when affecting private interests, they will not hold legally responsible those
who command or perform them. This in its broadest sense. In its limited sense, it
refers to the acts taken by the State concerning as affecting aliens, like the
inherent right of every sovereign State to exclude resident aliens from its territory
when their continued presence is no longer desirable from the standpoint of its
domestic interest and tranquility. (Political Law, Neptali A. Gonzales, p. 28, 1966
Ed.).

Q– What is sovereignty?

ANS: Juristically speaking, sovereignty means the supreme, uncontrollable power, the
jures summi imperri, the absolute right to govern. (Story on the Constitution,
cited in Gonzales, Phil. Political Law, 1966 Edition, p. 23). It is the supreme will
of the State, the power to make laws and enforce them by all the means of
coercion it cares to employ (Strong on the Constitution, cited in Gonzales, Phil.
Political Law, 1966 Edition, p. 23).

Q– What is legal sovereignty? Upon whom is it conferred?

ANS: Legal sovereignty is the possession of unlimited power to make laws. (Sinco,
Political Law, p. 20, cited in Phil. Political Law, Gonzales, 1966 Ed., p. 24). It is
the authority by which a law has the power to issue final commands. (Gilebrist,
Principles of Political Science, pp. 97-98). It is conferred upon the Congress.

Q– What are the dual aspect of sovereignty? Explain.

ANS: The dual aspect of sovereignty are:

(1) Internal – which means the supremacy of the person or body of persons in the
state over the individual or association of the individual within the area of its
jurisdiction. (Gonzales, Phil Political Law, 1966 edition, p. 23, citing Sinco, Phil.
Political Law, p.18).

(2) External – which means the absolute independence of one state as a whole
with reference to the other state. External sovereignty is nothing more than the
freedom of the state from subjection to or control by a foreign state, that is the
supremacy of the state as against all foreign states (Gonzales, Phil. Political Law,
supra; citing Garner, p.168).

Q– What is the political sovereignty?

ANS: Political sovereignty is the some total of all influences in a state which lie behind
the law. It is roughly defined as a power of the people. It is the sovereignty of the

41
electorate, or in its general sense, the sovereignty of the whole body politic.
(Gonzales, Phil. Political Law, 1966 Ed., p. 24; citing Aruego, p. 36). It is
conferred upon the people.

Q– What is imperium? Dominium?

ANS: Imperium is the right of the state to pass or enact its own laws and employed
force to secure obedience thereto, maintain peace and order within its territorial
limits, defined the state against foreign invasion, and do any other act of
government over its people and territory.

Dominium refers to the independent proprietary rights of possession, use,


conservation, disposition or sale, and control by the state over its territorial lands.

Q– How do you treat the claim of the Philippines over Sabah? Is it imperium or
dominium?

ANS: It is both imperium and dominium. We seek to own exclusively Sabah and in so
owning, will have to exercise our sovereignty to govern the same.

Q– Is there any distinction between possession of sovereignty and exercise of


sovereignty?

ANS: Yes. Sovereignty itself resides and remains with the state as a juristic person,
while the exercise of the sovereignty is delegated as a rule to the government or
its organs, which maybe a king or president, parliament, or a Congress, the
electorate, or some other entity. (Philippine Political law, Neptali A Gonzales, p.
25, 1966, Ed., citing Sinco).

Q– May sovereignty be suspended? Why?

ANS: No, because the existence of sovereignty cannot be suspended without putting it
out of existence or divesting the possessor thereof at least during the period of
suspension, what may be suspended is the exercise of the right of sovereignty
when the control and government of the territory by the enemy passes temporarily
to the occupant. (Laurel vs Misa, 44 O.G. 1176). So that, during the Japanese
occupation in the Philippines, sovereignty itself was not suspended for what was
suspended was merely the exercise of the rights of sovereignty.

Q– X country passed laws but it lacks the course to compel compliance. Does it
possesses sovereignty? Why?

ANS: Yes, because lack of adequate force to compel compliance with its laws is not
essential to, or in compatible with, the possession of sovereignty. Legally, a
sovereign may well promulgate laws which he is actually unable to enforce. (43
Pol. Science Quarterly, pp. 32, 43; citing Professor Dickenson, cited in Phil.
Political Law, Gonzales, p. 25, 1966 Edition).

Q– Discuss the effect of change of sovereignty on the laws of a ceded or annexed


territory.

ANS: The political laws of the cede State fall to ground as a matter of course upon the
change of sovereignty and are automatically replaced by those of the new
sovereign. However, such political laws of the prior sovereign may be continued
in forced by the affirmative act of the Commander-in-Chief during the war and
the Congress in time of peace. But the non-political or municipal laws are
impliedly continued unless they are not inconsistent with the constitutional laws

42
and institutions of the new sovereign. Their continuance is equivalent to their re-
enactment by the Legislature of the new sovereign, thereby becoming entirely
new laws of the latter. (Villas vs City of Manila, 220 U.S. 345; People vs.
Perfecto, 43 Phil. 887; People vs. Lo-Lo, 43 Phil. 19; In Re Shoop, 41 Phil. 23).

Q– What are the political laws? Give example.

ANS: Political laws are those laws regulating the relations sustained by the inhabitants
to the sovereign. Examples are laws on citizenship, right of assembly, freedom of
speech, press, etc.

Q– What are non-political laws or municipal laws? Give examples.

ANS: Non-political laws are those which regulate the social, economic, or commercial
life of the country of the inhabitants with each other. Examples are civil, or
commercial laws.

Q– When is there military occupation over a territory?

ANS: There is military occupation over territory when: (1) There is war between two (2)
states; (2) The armed forces of one of the belligerents take actual physical
possession of the territory of the other States; (3) The armed of the belligerent is
able to establish effective control and administration. If one of these is lacking,
there can be no military occupation in the legal sense.

Q– Anastacio Laurel was charged with treason for alleged collaboration with the
enemy during the Japanese occupation. He filed a petition for habeas corpus
on the theory that the sovereignty of the legitimate government of the
Philippines and the allegiance of all Filipinos were suspended. Is the
contention correct? Why?

ANS: In Laurel vs Misa, 44 O.G. 1176, the Supreme Court said that the absolute and
permanent allegiance of the inhabitants of a territory occupied by the enemy to
their legitimate government or sovereign is not abrogated or severed by the enemy
occupation, because the sovereignty of the government or sovereign de jure is not
transferred thereby to the occupier, and if it is not transferred to the occupant, it
must necessarily remain vested in the titular government. What may be suspended
is the government of the territory occupied by the enemy which passes
temporarily to the occupant. Since sovereignty itself is not suspended and subsists
during the enemy occupation, the allegiance of the inhabitants to their legitimate
government or sovereign subsists and therefore, there is no such thing as
suspended allegiance.

The rule, however, that political laws of the occupied territory are suspended or
held in abeyance during the military occupation is a rule intended for the
government of the civil inhabitants of the occupied territory and does not bind the
enemies at war. (Ruffy, et. al. vs Chief of Staff, 75 Phil. 875). In this case, Ruffy
et. al., were charge in a court-martial proceeding for violation of Articles 93 and
95 of the Articles of War. They filed probation proceedings contending that by the
enemy occupation of the Philippines, the National Defense Act and the Articles of
War as well as the rules creating and regulating the Philippine Army, were
suspended, being political in nature. The Supreme Court said:

“The rule invoked by counsel, namely, that laws of political nature or affecting
political relations are considered suspended or held in abeyance during the
military occupation, is intended for the governance of the civil inhabitants of the

43
occupied territory. It is not intended for and does not bind the enemies in arms.
This is self-evident from the very nature of things. The paradox of a country
ruling should readily manifest itself. Under the petitioner’s theory, the forces or
resistance operating in an occupied territory would have to abide by the outlawing
of their own existence. They would be stripped of the very life-blood of an army,
the right and the ability to maintain order and discipline within the organization
“if you do not try the men guilty of breach thereof.”

Q– Is there any requirement as to the number of people that may comprise the
State?

ANS: None. It is enough that the number is sufficient to maintain its existence and
defend itself.

Q– Is there any requirement as to the area of the territory of a State?

ANS: There is none. It is enough that it is large enough to be able to sustain itself.

Q– Is there any Constitutional provision forbidding any suit against the State?

ANS: Yes. The Constitution provides expressly that the State cannot be sued without its
consent. (Sec.3, Art. XVI, 1987 Constitution)

Q– How may consent of the State to be sued given?

ANS: The consent of the State to be given expressly or impliedly. There is express
consent when it gives it by way of a general law. (Act No.3083; C.A. No. 327, as
amended by P.D. No. 1445; Arts. 2180, 2189, NCC, or by special law).

There is implied consent when it files a suit or when it enters into a contract in the
exercise of its proprietary capacity. (United States of America vs. Ruiz, 135
SCRA 487).

Q– Who gives the consent to be sued?

ANS: It is the Congress by way of the law that gives the State’s consent to be sued. The
law may be a general statute or a special law.

Q– May the Consent to be sued be given by a lawyer of an unincorporated


agency of the State?

ANS: No, because the consent to be effective, must be given by the State through a duly
enacted statute. The consent given by the lawyer of the unincorporated agency of
the State is not the binding upon it as he is considered to have gone beyond the
scope of his authority. (Republic vs. Purisima, 78 SCRA 470).

Q– What is the basis of the State’s immunity from suit? Explain.

ANS: The State’s immunity from suit doctrine rest upon reasons of public policy and the
inconvenience and danger which would flow from a different rule. “It is obvious
that the public service would be hindered and public safety endangered if the
supreme authority could be subjected to suits at the instance of every citizen, and,
consequently, controlled in the use and disposition of the means required for the
proper administration of the government. “ (Siren vs. U.S. Wall, 152, 19L.
Ed.129, as cited in 78 SCRA 477). In the same vein, this Court in republic vs.
Purisima (78 SCRA 470, 473) rationalized:

44
“Nonetheless, a continued adherence to the doctrine of non-suability is not
be deplored for as against the inconvenience that may be caused (by)
private parties, The loss of governmental efficiency and the obstacles to
the performance of its multifarious functions are far greater if such
fundamental principle were abandoned and the availability of judicial
remedy were not thus restricted. With the well-known propensity on the
part of our people to go to court, at the least provocation, law suits, in the
absence of such a basic principle that be imagined.” (citing Providence
Washington Insurance Co. vs. Republic, 29 SCRA 598). (See also
Veterans Manpower and Protective Services, Inc. vs. CA, G.R. No. 91359,
Sept. 25, 1992).

It is also founded on the principle that there can be no right as against the
authority that makes the law upon which that right depends. (Republic vs.
Villasor, 54 SCRA 83).

Q– What does it mean when the State gives its consent to be sued? Explain.

ANS: When the State consents to be sued, it does not necessarily concede its liability.
By consenting to be sued, it waives immunity from suit, but it does not waive its
lawful defenses to the action. (Meritt vs. Government, 31 SCRA 311, 318). Even
when the government has been adjudged liable in a suit to which it has consented,
it does not necessarily follow that the judgment can be enforced by execution
against its funds for, as held in Republic vs. Villasor (54 SCRA 84), every
disbursement of public funds shall be covered by a corresponding appropriation
passed by the Legislature.

A judgment against the State, in a case where it consents to be sued, simply


implies that the Legislature will recognized the judgment as final and make
provisions for its satisfaction. The decision of this Court in Republic vs. Palacio
(23 SCRA 899) is relevant.

Q– When the State files a suit, it waives its right against immunity from suit. Is
the rule absolute? Why?

ANS: As a rule, when the State files a suit it becomes vulnerable to suits or counter
claims. (Factoran vs. Pan Oriental Shipping, L-6060, Sept. 30, 1950). But not if
the State intervenes in a suit not for the purpose of asking any affirmative relief
but for the purpose of resisting the claim precisely because of State immunity.
(Lim vs. Brownell, 107 Phil. 345).

Q– How should the waiver of State immunity be construed? Explain.

ANS: Waiver of the State’s immunity from suit, being a derogation of sovereignty, will
not be lightly inferred, but must be construed strictissimi juris. (Republic vs.
Feliciano, 148 SCRA 424). The consent of the State to be sued must emanate
from statutory authority, hence, from a legislative act, not from a mere
memorandum. Without such consent, the trial court did not acquire jurisdiction
over the public respondents. (Veterans Manpower and Protective Services, Inc. vs.
CA, G.R. No. 91359, Sept. 25, 1992).

Q– In a complaint against the State, the plaintiff failed to allege the existence of
State’s consent. Give the effect of such failure to allege State’s consent to be
sued?

ANS: It is a rule that the complaint must allege that the State gave its consent to be sued,
otherwise, it would be dismissed. This is so because waiver of the immunity being

45
in derogation of sovereignty will not be inferred lightly and must be construed
strictissimi juris. (Republic vs. Feliciano, 148 SCRA 424).

Q– Is there any distinction between suability and liability of the State? Explain.

ANS: Yes. “Suability depends on the consent of the State to be sued. Liability on the
applicable law and the established facts. The circumstances that the State is
suable does not necessary mean that it is liable, on the other hand, it can never be
held liable if it does not first consent to be sued. Liability is not conceded by the
mere fact that the State has allowed itself to be sued. When that State does waive
its sovereign immunity, it is only giving the plaintiff the chance to prove, if it can,
that the defendant is liable.” (United States of America vs. Guinto, supra; Mun.
of San Fernando, La Union vs. Judge Firme, supra).

Q– Does the doctrine of State immunity from suit extend to foreign states?

ANS: Yes. Consistent with recognized principles of international law, adopted under the
Constitution as part of the law of the land, a foreign State or government may not
be sued in the courts of another State or its own courts without its consent.
(Syquia vs. Almeda, L-1648; Johnson vs. Turner, L-6118, April 26,1954; Jusmag
vs. NLRC, 57 SCAD 526, G.R. No. 108813, Dec. 15, 1994).

Q– A piece of real property was acquired by the Holy See by way of donation
from the Archdiocese of Manila. The purpose was the construction of the
official place of residence of the Papal Nuncio. Such right to acquire was
recognized in the 1961 Vienna Convention on Diplomatic Relation s. It was,
however, sold to another. The Holy See was sued through its representative
Msgr. Cirilos Jr. for failure to comply with the condition to evict the
squatters. It was contended, however, that it cannot invoke immunity from
suit since it entered into a commercial transaction. Rule on the contention.

ANS: The contention is not correct. The Holy See is immune from suit because the
decision to transfer the property was clothed with a governmental character, as it
did not do it for profit or gain. The mere entering into a contract by a foreign State
with a private party cannot be the determining factor whether it engaged in a
business or trade, the particular act or transaction must be tested by its nature. If
the act is in pursuit of a sovereign activity, or an incident thereof, it is an act jure
imperii, especially when it is not undertaken for gain or profit. If it is bought and
sold in the ordinary course of a real state business, then it is jure gestionis. (Holy
See vs. Judge Rosario, Jr., et al., 57 SCRA 92, G.R. No. 101949, Dec. 1, 1994).

Q– What department of the government determines whether a foreign State is


entitled to immunity from suit and what is the nature of such determination?

ANS: The executive department is the branch that is empowered to determine whether a
foreign State is entitled to immunity from suit.

The determination of the executive arm of the government that a State or


instrumentality is entitled to sovereign or diplomatic immunity is a political
question that is conclusive upon the courts. (International Catholic Migration
Commission vs. Calleja, 190 SCRA 130 [1990]). Where the plea of immunity is
recognized and affirmed by the executive arm of the government in conducting
the country’s foreign relations. (World Health Organization vs. Aquino, 48 SCRA
242 [1972]; Callado vs. IRRI, 61 SCAD 204, G.R. No. 106483, May 22, 1995).

Q– What is the raison d’etre for immunity of international organizations or


foreign states?

46
ANS: The raison d’etre for these immunities is the assurance of unimpeded
performance of their functions by the agencies concerned. In Callado vs. IRRI, 61
SCAD 204, G.R. No. 106483, May 22, 1995, it was said:

“The grant of immunity from local jurisdiction to x x x and IRRI is clearly


necessitated by their international character and respective purposes. The
objective is to avoid the danger of partiality and interference by the host country
in their internal workings. The exercise of jurisdiction by the Department of Labor
in these instances would defeat the affairs of international organizations, in
accordance with international practice, from political pressure or control by the
host country to the prejudice of member States of the organization, and to ensure
the unhampered performance of their functions.” (See also WHO vs. Aquino, 190
SCRA 140).

Q– What do you call the process done whenever a foreign state is sued and
pleads its immunity from suit? How is it done?

ANS: It is called the process of suggestion.

In the United States, the procedure followed is the process of suggestion,” where
the foreign State or international organization sued in an American court requests
the Secretary of State to make a determination as to whether it is entitled to
immunity. If the Secretary of the State finds that the defendant is immune from
suit, he, in turn, asks the Attorney General to submit to the court a “suggestion”
that the defendant is entitled to immunity. In England, a similar procedure is
followed, only the Foreign Affairs Office issues a certification to that effect
instead of submitting a “suggestion.” (O’Connell, I International Law 130
[1965]; Note: Immunity from Suit of Foreign Sovereign Instrumentalities and
Obligations, 50 Yale Law Journal 1088 [1941]}.

In the Philippines, the practice is for the foreign government or the International
organization to fist secure an executive endorsement of its claim of sovereign or
diplomatic immunity. But how the Philippine Foreign Affairs Office conveys its
endorsement to the court varies. In International Catholic Migration Commission
vs. Calleja, 190 SCRA 130 (1990)., the Secretary of Foreign Affairs just sent a
letter directly to the Secretary of Labor and Employment, informing that the latter
that the respondent-employer could not be sued because it enjoyed diplomatic
immunity.

Q -- Is the Vatican City a State?

ANS: Yes. The Vatican City first fell into none of the established categories of States,
and the attribution to it of “sovereignty” must be made in the sense different from
that in which it is applied to other States. (Fenwick, International Law, pp.124-
125 [1948]; Cruz, International Law, 37 [1991]. In a community of national
States, the Vatican City represents an entity organized not for political but for
ecclesiastical purposes and international objects. Despite its size and object, the
Vatican City has an independent government of its own, with the Pope, who is
also head of the Roman Catholic Church, as the Holy See or Head of the State, in
conformity with its traditions, and the demands of its mission in the world.
Indeed, the worldwide interests and activities of the Vatican City are such as to
make it in a sense an “international State.” (Fenwick, supra, 125; Kelsen,
Principles of International Law, 160 [1956]).

One authority wrote that the recognition of the Vatican City as a state has
significant implication – that it is possible for any entity pursuing objects
essentially different from those pursued by States to be invested with international
personality. (Kunz, The Status of the holy see in international Law, 46 The

47
American Journal of International Law,308 [1952]; Holy see vs. Rosario, et al., 57
SCAD 92, G.R. No. 101949, Dec. 19940.

Q -- Are there conflicting concepts of sovereignty? Explain

ANS: Yes. And these are the classical or absolute theory and restrictive theory.
According to the classical or absolute theory, a sovereign cannot, without its
consent, be made a respondent in the courts of another sovereign. According to
the newer or restrictive theory, the immunity of the sovereign is recognized only
with regard to public acts jure imperii of a state, but not with regard to private
acts or jure gestionis. (United State of America vs. Ruiz, 136 SCRA 487 [1987];
Coquia and Defensor-Santiago, Public International Law, 194 [1984]).

Some states passed legislation to serve as guidelines for the executive or judicial
determination when an act may be considered as jure gestionis. The United States
passed the Foreign Sovereign Immunities Act of 1976, which defines a
commercial activity as “either a regular course of commercial conduct or a
particular commercial transaction or act, rather than by reference to its purpose.”
The Canadian Parliament enacted in 1982 an act to provide for state Immunity in
Canadian courts. The Act defines a “commercial activity” as any particular
transaction, act or conduct or any regular course of conduct that by reason of its
nature, is of a “commercial character.”

The restrictive theory, which is intended to be a solution to the host of problems


involving the issue of sovereign immunity, has created problems of its own. Legal
treaties and the decision difficulty in characterizing whether a contract of a
sovereign state with a private party is an act jure gestionis or act jure imperii.

The restrictive theory came about because of the entry of sovereign State into
purely commercial activities remotely connected with the discharge of
governmental functions. (Holy see vs. Rosario, supra

Q- Enumerate some acts of foreign state with private parties as acts jure
gestionis.

ANS: The following transactions by a foreign state with private parties are acts jure
gestionis: (1) the hiring of a cook in the recreation center, consisting of three (3)
restaurants, a cafeteria, a bakery, a store, and a coffee and pastry shop at the John
Hay Air Station in Baguio city, to cater to Americans and other customers; and (2)
the bidding for the operation of barber shop in Clark Air Base in Angeles city.
(United States of America vs. Guinto, 182 SCRA 644 [1990]). The operation of
the restaurants and other facilities open to the general public is undoubtedly for
profits as a commercial and not a governmental activity.

Q- Give examples of Laws where the state has given its consent to be sued.

ANS: In the following Laws, the State has given its consent to be sued:

(1) Act No. 3083 which provides that:

“Subject to the provisions of this Act, the government hereby consents and
submits itself to be sued upon moneyed claims involving liability arising
from contracts, express or implied which could serve as basis of civil
action between private parties.”

(2) CA No. 327 as amended by P.D. no. 1445, Secs. 49-50 which state that:

48
“Any claim against the government must first be filed with the
commission on audit which must act on it with in sixty (60) days. Appeal
may be made to Supreme Court certiorari.”

(3) Art. 2189, Civil Code which provides that:

“Provinces, cities, or municipalities shall be liable for damages for the


death of, or injuries suffered by any person by reason of the defective
condition of roads, streets, bridges, public buildings and other public
works under their control or supervision.”

(4) Art. 2180, Civil Code which states that:

“The State is responsible in like manner when it acts through a special


agent.”

Q- May the State be obliged to litigate in an inter pleader? Why?

ANS: No. The prohibition that the government cannot be sued without its consent
applies not only when the government is included as a defendant, but also when it
is sought to be obliged to be litigate without its consent against other person.
There is no substantial difference between obliging it without its consent as
defendant in a case and obliging it without its consent to litigate as interpleader in
an action commenced by other persons. In one and in the other case, it is obliged
without its consent to sustain a suit or litigation and this is what to legal principle
prohibits. (Alvarez vs Philippine Commonwealth, 65 Phil. 302).

Q -- Bredco was awarded by Bacolod City a contract of reclamation, such that as


of 1975, a big area had already been reclaimed from the sea. Titles were
issued in Bredco’s name. Later, it engaged Marsteel’s services and would
received 65% of the excess revenues over all expenses. Hence, Bredco
conveyed to Marsteel 65% of each lot already reclaimed.

In 1977, Marsteel assigned to MCI, which owned 100% of each capital


stock, all of its rights and obligation in the project. To enable MCI to expand
its based of negotiation for loans needed in the project, Bredco stockholders
transferred to MCI their respective shares of stock amounting to 70% of the
capital stock of Bredco. In return, the MCI shall be entitled to a share of
35% in excess of all revenues overall disbursement of the projects.

In September 1986, the PCGG sequestered all assets of Marsteel, MCI


and Bredco. In July 1987, the complaint at bar was filed. The pleadings
alleged that the defendant amassed ill-gotten wealth listed in Annex-A,
among which are the Bredco lots and shares of stock. However, the
complaints did not mentioned Bredco, its projects and stocks nor did it made
mentioned of MCI.

Before the case could be set for hearing, Palanca, in his behalf and as
stockholder of Bredco and other stockholder similarly situated, filed with the
Sandigan Bayan a motion for leave to intervene by attaching their answer in
intervention.

The Sandigan Bayan granted the motion of four interventions and


admitted their answer in intervention.

The petitioner contends that the Sandigan Bayan acted in


contravention of a national policy embodied in Executive Orders Nos. 1, 2,
and 4, because petitioner being a sovereign State, cannot be sued without its

49
consent and the intervention is in legal effects, a suit against the sovereign
State. Decide.

ANS: Petitioners contention that the State cannot be sued without its consent and that
Palanca’s action for intervention is a suit for countersuit against the sovereign is
untenable. In intervening, Palanca and his co-stockholders have for their purpose
to exclude the Bredco lots, or at least their 35% interest in the Bredco project
from any possible judgment directing reconveyance of the alleged ill-gotten
wealth to the plaintiff. They did not pray for damages against the latter. In effect,
they occupied a defensive position as regards to those share of stocks or interest.
The fact that they interjected themselves into this litigation of their own initiative
does not alter the essential nature of their intervention. The action for intervention
is not a suit or countersuit against the Republic of the Philippines. They intervene
merely to unit with the defendant there in, resisting the claims of the PCGG as
plaintiff, and for that reason, asked for no affirmative relief against any party in
their party in intervention. This is not a case where the intervenors take the
initiative in an action against the PCGG by filling a complaint in intervention or a
complaint. (Republic vs Sandigan Bayan, G.R. No. 85284, Feb. 28, 1990;
Republic vs SV, April 17, 1990).

Q- If the State conduct business through a government owned or controlled


corporation, can the agency be sued and its money garnished? Explained.

ANS: Yes. If the government conducts business through either a government owned and
controlled corporation or a non-corporate agency set up primarily for business
purpose, the entity enjoys no immunity from suit even if there is no express grant
of authority “to sue or be sued.” Having a juridical personality separate and
distinct from the government the funds of such government-owned and controlled
corporation and non-corporate agency, although consider in public in character
are not exempt from garnishment. This doctrine was applied to suits filed against
the Philippine Virginia Tabacco Administration (PNB vs Pabalan, et al., 83 SCRA
595); the National Shipyard and Steel Corporation (NASSCA vs CIR, 118 Phil.
782); the Manila Hotel Company (Manila Hotel Employees Assn. vs Manila Hotel
Co., 73 Phil. 374); and the Peoples’s Homesite and Housing Corporation (PNB vs
CIR, 81 SCRA 314). See also Philrock, Inc. vs. Board of Liqiudators, G.R No.
84992,Dec. 15, 1989.

Q -- Sometimes in May 1972, the United States advertised for bidding, projects
involving the repair of wharves and certain works on the shorelines at its
naval base in Subic, Zambales. Eligio de Guzman Co., Inc. Submitted
proposals in connection with which it receive two telegrams from the U.S.
Government asking it to confirm its price proposals and the name of its
bonding company. However, in June 1982, the said company was inform that
its proposals had been rejected and the projects had been awarded to third
persons, hence, it brought a suit in the Court of First Instance of Zambales to
compel the US Government to allow it to perform the work on the projects.
It also asked for a writ of preliminary injunction to restrain the US
Government from entering into contract with third parties on the projects.

The US Government filed a motion to dismiss the complaint but its


motion was denied, even as it was enjoined from awarding the contract to
third parties, hence, this petition for review.

ANS: It is necessary to distinguish between sovereign and governmental acts (jure


imperii) and private, commercial or proprietary acts ( jure gestionis). The result
is that the state immunity now extence only to acts jure imperii. However, the
respondent judge held that by entering into a contract for the repair of wharves or
shorelines, the state did not act in its governmental capacity.

50
The State maybe considered as having descended to the level of the individual
and can be deemed to have tacitly given its consent to be sued only when it enters
into a business contract. The rule does not apply where to contract relates to the
exercise of its sovereign function. In the case at bar, the projects are considered as
integral parts of the naval base which is devoted to the defense of both the United
States and the Philippines, indisputably, a function of the government of the
highest order, they are not utilized nor dedicated to commercial or business
purposes. (USA vs. Ruiz, 136 SCRA 487).

Q -- In 1966, the petitioners filed a civil suit against the Public Highways
Commissioner and the Auditor General seeking payment of just
compensation for the land which the government in 1927 took for the
purpose of widening a road. The petitioners asked that they be paid or that
the land be restored to them. The CF1 dismissed the case on the ground that
the suit was against the government and that the government cannot be sued
without its consent. The petitioner asked the Supreme Court to review the
case.

ANS: The doctrine of government immunity from suit cannot serve as an instrument for
perpetrating as injustice on a citizen. Had the government followed the procedure
indicated by the governing law at the time, a complaint would have been filed by
it, and only upon payment of just compensation fixed by the judgment, or after
tender to the party entitled to such payment of the amount fixed, may it have the
right to enter in and upon the same so condemned to appropriate the same to the
public use defined in the judgment. It is not too much to say that when the
government takes any property for public use, it manifests that the doctrine of
immunity from suit could still be appropriately invoked. (Ministerio vs. CFI of
Cebu, L-31635, August 31, 1971)

Q -- A donation was made by the petitioners in favor of the Bureau of Plant


Industry with the condition that the donee shall install lighting and water
system on the property and build an office building with parking thereon not
later than December 7, 1974. The Bureau failed to comply with the condition
imposed by the donors, hence, the latter filed an action for revocation of the
deed of donation. The trial court dismissed the action on the ground that the
State cannot be sued without its consent. Decided.

ANS: The dismissal of the action is not proper. Ordinarily, a suit of this nature cannot
proper. It would, however, however, be manifestly unfair for the government, as
donee, which is alleged to have violated the condition under which it received
gratuitously certain property, to invoke its immunity. It would be against equity
and justice to allow such defense. (Santiago vs. Republic, 87 SCRA 294).

Q -- If the State is sued for the recovery of the value of the land it took possession
of and converted into a public street without payment of just compensation,
can it move to dismiss the complaint on the ground of State immunity from
suit?

ANS: No, even if the owner did not previously filed the claim with the Auditor General.
In the earlier case of Ministerio vs. Cebu City, 40 SCRA 464, the Supreme Court
held that if the constitutional mandate that the owner be compensated for property
taken for public use were to be respected, as it should, then the suit of this
character should not be summarily dismissed. The doctrine of immunity of the
State from suit cannot serve as an instrument for perpetrating an injustice on a
citizen. The government did not follow the procedure laid down by law, so that it
is not too much to say that when the government takes any property for public
use, which is conditioned upon payment of just compensation to be judicially
ascertained, it makes manifest that it submits to the jurisdiction of any court of

51
justice. The doctrine of State immunity then, cannot be invoked. (Amigable vs.
Cuenca, 43 SCRA 360).

Q -- Are government funds subject to garnishment? Explain.

ANS: As a general rule, no. In Pasay City Government vs. CFI of Manila, 132 SCRA
156 (1984), it was held that whether the money is deposited by way of general or
special deposit, it remains as government fund and may not be subject to
garnishment.

The exception is when a law or an ordinance has been enacted appropriating a


specific amount to pay a valid government obligation, then, the money can be
garnished.

Q -- May a suit lie against incorporated agencies of the State?

ANS: Yes, because they are not performing governmental functions, but merely
proprietary functions, hence, they may not invoke the sovereign prerogative of
immunity of the State from suits. These agencies are conferred with charters and
are given personalities separate and distinct from the Sate and they are clothed
with the power to sue and be sued.

Q -- Petitioner sued the Philippine National Railways for damages for the death
of their son who fell from an overloaded train belonging to the PNR
sometime on October 30, 1977. The Trial Court dismissed the suit on the
ground that the charter of the PNR, as amended by PD 741 has made the
same a government instrumentality, and thus, immune from suit.

ANS: The dismissal is not proper. The correct rule, the Supreme Court said, is that not
all government entities whether corporate or non-corporate, are immune from
suits. Immunity from suit is determined by the character of the objects for which
the entity is organized. (National Airport Corp. vs. Teodoro, 91 Phil., 206; Santos
vs. Santos, 92 Phil., 281; Harry Lyons vs. U.S., 104 Phil. 539). When the
government enters into a commercial business, it abandons its sovereign capacity
and is to be treated like any other corporation. In this case, the State divested itself
of its sovereign capacity when it organized the PNR which is no different from its
predecessors, the Manila Railroad Company. (Malong vs. PNR, 138 SCRA 63).

Q -- May NIA be liable for damages for the injuries sustained by the crops of the
private respondents due to the inundation of their landholdings? It was
contented that NIA could be sued, it is not liable for tort since it did not act
through a special agent as required under paragraph 6, Article 2180 of the
Civil Code. Decide.

ANS: NIA is in error. It is not immune from suit by virtue of the express provision of
P.D. No. 552. Under its charter (R.A. No. 3601, as amended), it has the power to
exercise all the powers of a corporation under the Corporation Law. It may sue
and be sued. NIA is a government agency with a juridical personality separate
and distinct from the government. It is not a mere agency of the government but a
corporate body performing proprietary functions. (Fontanilla vs. Maliaman, 194
SCRA 486 [1991]; NIA vs. IAC, et al., G.R. No. 73919, September 18, 1992).

Q -- The petitioner filed a suit for specific performance with damages against
respondent (formerly Reparation Com.) praying for the replacement of a
defective rock pulverizing machinery with a new one, or in the alternative,

52
replace the same. The respondent denied responsibility for damages
contending that the same was inspected by reputable companies under the
Reparation Law. The RTC ruled for the petitioner and issued an order of
execution pending appeal. The CA set aside the order, hence, this petition.

The issue raised is whether the funds of REPACOM in the


account of the Board of Liquidators in the Philippine National Bank may be
garnished to satisfy a money judgment against the BOARD. Decide.

ANS: No, because the suit against REPACOM was a suit against the State. The Board of
Liquidators is a government agency under the direct supervision of the President
of the Republic created by E.O. 372, dated Nov. 24, 1950. Pursuant to P.D. Nos.
629 and 635-A, it is tasked with the specific duty of administering the assets and
paying the liabilities of the defunct REPACOM. It was not created for profit nor
to engage in business. Hence, a government agency which is unincorporated
possesses no juridical personality of its own, the suit against it becomes a suit
against the agency ‘s principal, i.e., the State.

The sale of the rock pulverizing plant to PHILROCK by the Board of Liquidators,
although proprietary in nature was merely incidental to the performance of the
Board’s primary and governmental functions of settling and closing the affairs of
the REPACOM. Hence, its funds in the Philippine National Bank are public
funds which are exempt from garnishment. The SC ruled in Commission of
Public Highways vs. San Diego ( 31 SCRA 616):

“All government funds deposited with PNB by any agency or instrumentality of


the government, whether by way of general or special deposit, remain
government funds since such government agencies or instrumentalities do not
have any non-public or private funds of their own. They are not subject to
garnishment or levy. Even assuming that the funds become commingled with
other funds of the bank, this does not remove the character of the fund as a credit
representing government funds, thus deposited.” (See Philrock, Inc. vs. Board of
Liquidators, G.R. No. 84992, Dec. 15, 1989).

Q- NMPC and PSI represented by Romeo Jalosjos borrowed money from


Traders Royal Bank in the sum of P2.5M through a standby letter of credit,
the amount of which was used to guarantee the payment of the coverage of
the right to broadcast the 1981 PBA Season with condition that collections
from the sponsors should be deposited with Traders. NMPC and PSI. The
OSG filed a Motion to Dismiss invoking immunity of State from suit. The
agency, it was contented, is performing governmental functions. It was
denied on the ground that the State may be sued if it entered into a contract.
Decide.

ANS: The agency was organized to disseminate governmental information to assist in


the hastening of the slow economic development of the country. When it entered
into a contract of loan to facilitate the broadcast of the 1981 basketball season, it
was engaged in an undertaking which was certainly beyond its function of
disseminating governmental information.

The doctrine of the State immunity from suit may not be invoked as a shield in the
same manner but it cannot serve as an instrument in perpetrating an injustice.

The NMPC’s implied consent to be sued notwithstanding, the trial court did not
have the power to garnish NMPC funds to answer for any eventual judgment
against it. Being public funds, the deposits are not within reach of any
garnishment or attachment proceedings. The reason, as cited in Com. of Public
Highways vs. San Diego, 81 SCRA 616, is public policy. Disbursement of public
funds must be covered by the corresponding appropriations as required by law.
The functions and public service rendered by the State cannot be allowed to be
paralyzed or disrupted by the diversion of public funds from their legitimate and

53
specific objects, as appropriated by law. (Traders Royal Bank vs. IAC, et al., G.R.
No. 68514, Dec. 17, 1990).

Q -- In G.R. No. 76607, several officers of the U.S. Air Force were sued in
connection with the bidding conducted for the contracts of barbering services
in said base. The bidding was won by Dizon, but it was questioned by private
respondents asking for the cancellation of the award and for the rebidding
for the barbershop concessions. A complaint was filed to that effect.
Petitioners filed a Motion to Dismiss invoking immunity of State from suit.

In G.R. No. 79470, Fabian Genove filed a complaint for damages against
petitioners for his dismissal as cook at the U.S. Air Force Recreation Center
at the John Hay Air Station in Baguio City. It was ascertained that Genove
had poured urine into the soup stock used in cooking the vegetables served to
the club customers.

In G.R. No. 80018, Luis Bautista, an employee of the barracks in


Camp O’Donnell was arrested following a buy-bust operation conducted by
the petitioners. As a consequence, he was removed.

In G.R. No. 80258, a complaint for damages was filed against


petitioners for injuries suffered by respondents. According to the plaintiffs,
they were beaten, handcuffed by the defendants, and dogs unleashed on them
which bit them in several parts of their bodies. The defendants denied this
but instead contented that the plaintiffs were bitten by the dogs when they
resisted arrest for the theft.

In their Motion to Dismiss, the defendants said that the suit against
them is a suit against the USA. The Motion to Dismiss was denied, hence,
this petition. Decide, stating your reasons.

ANS: The rule that a State may not be sued without its consent, now expressed in
Section 3, Article XV1 of the 1987 Constitution is one of the generally accepted
principles of international law, adopted as part, of the law of land under Article
II, Section 2. This latter provision merely reiterates a policy earlier embodied in
the 1935 and 1973 Constitutions and also intended to manifest our resolve to
abide by the rules of the international community.

Even without such affirmation, we will still be bound by the generally accepted
principles of international law under the doctrine of incorporation. Under this
doctrine, as accepted by the majority of States, such principles are deemed
incorporated in the law of every civilized. State as a condition and consequence
of its membership in the society of nations. Upon its admission to such society,
the States is automatically obligated to comply with these principles in its
relations with other States.

As applied to the local States, the doctrine of State immunity is essential to the
justification given by Justice Holmes that “there can be no legal right as against
the authority which makes the law on which the right depends.” There are other
practical reasons for the enforcement of the doctrine. In the case of the foreign
State sought to be impleaded in the local jurisdiction, the added inhibition is
expressed in the maxim par in parem, non habet imperium. .All States are
sovereign equals cannot assert jurisdiction over another. A contrary disposition
would, in the language of a celebrated case, “unduly vex the peace of nations.”

While the doctrine appears to prohibit only suits against the State without its
consent, it is also applicable to complaints filed against officials of the State for
acts allegedly performed by them in the charged of their duties. The rule is that, if
the judgment against such officials will require the State, itself to perform an
affirmative act to satisfy the same, such as the appropriation of the amount needed
to pay the damages awarded against them, the suit must be regarded as against the

54
State, itself although it has not been formally impleaded. In such a situation, the
State may move to dismiss the complaint on the ground that it has been filed
without its consent.

In connection with G.R. No. 80018, the petitioners were acting in the exercise of
their official functions when they conducted the buy-bust operation against the
complainant and thereafter testified against him at his trial. The said petitioners
were in fact connected with the Air Force office as Special Investigators and were
charged precisely with the functions of preventing the distribution, possession and
use of prohibited drugs and prosecuting those guilty of such acts. It cannot for a
moment be imagined that they were acting in their private or unofficial capacity
when they were apprehended and later testified against the complainant. It follows
that for discharging their duties as agent of the United States, they cannot be
directly impleaded for acts imputable for their principal which has not given its
consent to be sued. As observed in Sanders vs. Veridiano:

“Given the official character of the above-described letter, we have to conclude


that the petitioners were, legally speaking, being sued as officers of the United
States government, and within the scope of their authority, it is that government,
and not the petitioners personally, that is responsible for their acts.”

In G.R. No. 79470, the restaurant service cannot be considered as a government


function, hence, the doctrine of State immunity from suit cannot be invoked. The
restaurant service partakes of the nature of a business enterprise undertaken by the
USA in its proprietary capacity. The services were not exclusive to the
servicemen, they were not also for free. Tourists could avail of the same.

As regards G.R. No. 76607, the barber shops subject of the concessions are
commercial enterprises operated by private persons. They are not agencies of the
USA, hence, the doctrine of the State immunity cannot be invoked. (USA vs.
Guinto and other cases, G.R. Nos. 76607; 79470; 80018; 80258, Feb. 26, 1990).

Q -- At the rally of the Kilusang Magbubukid ng Pilipinas on January 22, 1987,


22 rallyists, in what was dubbed as the Mendiola Massacre, were killed by
the military or police. The State and the military and police officers were
sued for damages. The claim for damages is grounded for government-
formed Mendiola Commission’s recommendation for indemnification of the
victims and Pres. Aquino’s public addresses in the aftermath of the killings
that the government would address the grievances of the rallyists. It is the
claimant’s view that the latter are tantamount to the State’s waiver of its
immunity from suit. Decide.

ANS: On the issue of whether the State waived its immunity from suit, it was held that
although consent to be sued maybe given impliedly, still it can not be maintained
that such consent was given in the instant case.

The recommendation made by the Commission regarding indemnification of the


victims does not in any way mean that liability automatically attaches to the State,
it not having in any way, become final and executory. The shall only serve as
cause of action in the event that any party decides to litigate his claim.

Whatever acts or utterances that Pres. Aquino may have made are not tantamount
to the State having waived its immunity from suit nor to the State’s admission of
any liability. At least, the President’s acts were merely acts of solidarity by the
government with the people.

Whether the military of police officers can invoke immunity of State from suit,
the Supreme Court said no, as it did not qualify as a against the State. While the
republic is sued in this case by name, the ultimate liability does not pertain to the
government but to the other military and police officers and personnel who have

55
been found to have acted beyond the scope of their authority. Although the
military officers and personnel were discharging their official functions when the
incident occurred, their function ceased to be official the moment they exceeded
their authority. Based on the Commission’s findings’ there lack of justification by
the government forces in the use of firearms in the dispersal of the marchers.
(Republic vs. Sandoval G.R. Nos. 84607, 84645, March 19, 1993).

Q-- After respondent Montoya purchased some items from the retail store at
NEX JUSMAG Headquarters. The change Manager at the JUSMAG
Headquarters. The searched was conducted at the parking lot. Montoya
filed a complaint against Bradford for damage due to the oppressive and
discriminatory acts committed by the latter in excess of her authority.
Bradford filed to motions for extensions to file her answer. However, instead
of filing an answer, Bradford, together with the government of the USA, filed
a motion to dismiss which was denied. Decide.

ANS: The USA intervened in the case through a motion to dismiss. Because of its
voluntary appearance, it must be deemed to have submitted itself to the
jurisdiction of the trial court. Bradford was sued in her private and personal
capacity for act done beyond the scope and even beyond her place of official
functions. The complaint is for damages arising from illegal search of Montoya’s
persons and belongings conducted outside the JUSMAG premises in front of
many people and upon others of Bradford, who has the propensity of laying
suspicious on Filipinos, for theft.

In Shauf vs. CA (191 SCRA 713), the Supreme Court held that unauthorized acts
of government officials or officers are not acts of the State. In Wylie vs. raring
(May 28, 1992), as reiterated in Minucher vs. CA (Sept. 24, 1992), it was held
that American naval officers who commit a crime of tortuous act while
discharging official functions are not covered by the principle of State immunity
from suit.

Moreover, Bradford cannot claim diplomatic immunity as she is not among those
grnated such privilege. And even under Art. 31 of the Vienna Convention on
Diplomatic relations, a diplomatic agent shall not enjoy immunity from civil and
administrative jurisdiction from an “action relating to any professional or
commercial activity exercised outside of his official function.” (USA vs. reyes,
G.R. No. 79233, march 1, 1993).

Q-- Arthur Scalzo, Jr. had several business transactions with petitioner, but it
turned out that petitioner was being framed up for drug trafficking. It was
alleged that private respondent falsely testified against him in the criminal
case for violation of R.A. No. 6425.

He also averred that unlawful arrest, robbery, and estafa have been filed
against the respondent. The basic issue was: May a complaint for damages
be dismissed on the sole basis of a statement contained in a Diplomatic Note,
belatedly issued after an answer to the said complaint had already been filed,
that the defendant was a member of the diplomatic staff of the United States
Diplomatic Mission in the Philippines at the time the cause of action
accrued? Why?

ANS: No, since said complaint contained sufficient allegations which indicate that
respondent committed the imputed acts in his personal capacity and outside of the
scope of his official duties and functions.

In Shauf vs. Court of Appeals, 191 SCRA 713 (1990) the SC ruled:

“The aforecited authorities are clear on the matter. They state that the
doctrine of immunity from suit will not apply and may not be invoked when the
public official is being sued in his private and personal capacity as an ordinary
citizen. The cloak of protection afforded the officers and agents of the

56
government is removed the moment they are sued in their individual capacity.
This situation usually arises where the public official acts without authority or in
excess of the powers vested in him. It is a well-settled principle of law that a
public official may be liable in his personal or private capacity for whatever
damage he may have caused by his act done with malice and in bad faith, or
beyond the scope of his authority or jurisdiction.” (Dumlao vs. Court of Appeals,
et al., 114 SCRA 247 [1982]).

Even Article 31 of the Vienna Convention on Diplomatic Relations admits of exceptions.


It reads:

1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the
receiving State. He shall also enjoy immunity from its civil and administrative
jurisdiction except in the case of:

x x x

c) an action relating to any professional or commercial activity exercised by


the diplomatic agent in the receiving State outside his official functions.”
(Emphasis supplied). (Minucher vs. CA, et al., G.R. No. 97765, sept. 24,
1992).

Q-- Respondent sued M.H. Wylie, and other naval officers of the US Naval Base
in Subic Bay for all alleged libelous and injurious publications. They filed a
motion to dismissed alleging immunity from suit. The basic question was
whether naval officers who commit a crime or tortuous act while discharging
their official functions are covered by the State’s immunity from suit.

ANS: No, The general le in that a State may not be sued without its consent. The
doctrine is also applicable to complaints filed against officials of the State for acts
performed by them in the discharged of their duties. Consent of the State to be
sued may be manifested expressly or impliedly. Express consent may be
embodied in a general or special law. Consent is implied when the State enters
into a contract it itself commences litigations.

It must be noted that in this case, the petitioners were negligent because
under their direction they issued the publication without deleting the name
“Auring”. Such act or omission is ultra vires and cannot be part of official duty.
Being sued in their personal capacities, they are liable for damages.

Q-- A suit was filed against the PC Chief for failure to act on the request by
petitioner seeking to set aside the findings of PADPAO expelling it from
PADPAO and considering its application for renewal of its license even
without the certificate of membership from PADPAO. A Motion to Dismiss
was filed invoking that it is a suit against the State which had not given its
consent. Decide.

ANS: Yes, it is suit against the State, the PC Chief and PC SUSIA being
instrumentalities of the State exercising the government function of regulating the
organization and operation of private detective watchmen or security guard
agencies. Even if its action prospers, the payment of its monetary claims may not
be enforced because the State did not consent to appropriate the necessary funds
for the purpose.

A public official may sometimes be held liable in his personal of private


capacity if he acts in bad faith, or beyond the scope of his authority or jurisdiction
(Shauf vs. Court of Appeals, supra), however, since the acts for which the PC
Chief and PC-SUSIA are being called to account in this case, were performed by
them as part of their official duties, without malice, gross negligence or bad faith,
no recovery may be held against them in their private capacities.

57
The memorandum of Agreement did not constitute an implied consent by
the State to be sued because it was intended to professionalize the industry and to
standardize the salaries of security guards. It was merely incidental to the
purposes of R.A. No. 5487 which is to regulate the organization and operation of
private security agencies. As held in USA vs. Guinto, 136 SCRA 487, a State
may be said to have descended to the level of an individual and can thus be
deemed to have tacitly given its consent to be sued only when it enters into a
contract. It does not apply where the contract relates to the exercise of its
sovereign functions. (Veterans manpower and Protective Service, Inc. vs. CA, et
al., G.R. No. 91359, Sept. 25, 1992).

Q-- The Republic through the PCGG filed a suit against Eduardo Cojuangco, Jr.
and Juan Ponce Enrile for reconveyance, reversion, accounting restitution
and damages. It was with the assistance of Sol. Gen. Francisco Chavez.
Enrile filed a motion to dismiss, but when it was denied, he filed his answer.
The Sandiganbayan granted Enrile’s request that Chavez be impleaded as
party defendant as well as the PCGG officials, for lodging the alleged
harassment suit against him. All PCGG officials filed their answer, invoking
immunity under Sec. 4, E.O. 1. Is the contention proper? Why?

ANS: No. There is no general immunity arising solely from occupying a public
position. The general rule is that public officials can be held personally liable for
acts claimed to have been performed in connection with official duties where they
have acted untra vires or where there is showing of bad faith. A mere invocation
of the immunity clause does not ipso facto result in charges being automatically
dropped.

Immunity from suit cannot institutionalize irresponsibility and non-


accountability nor grant a privileged status not claimed by other officials of the
Republic.

If the Solicitor General maliciously conspires with the PCGG in


persecuting respondent by filing against him an evidently bareless suit in
derogation of the latter’s constitutional rights and liberties, a complaint for
damages can be filed against him. High position in government does not confer a
license to persecute or recklessly injure another. (Arts. 19, 20, 21, and 32, NCC).

To vindicate his rights, Enrile has to file a separate and distinct action for
damages against the Solicitor General. (Chavez vs. Sandiganbayan, G.R. No.
91391, Jan. 24, 1991).

Q-- The petitioners filed a complaint for damages against Don Detroiler and
Anthony Persi for having discriminated against Loida Shauf by reason of her
sex and nationality thus, violating her right to earn a living which is an
aspect of the right to life. She filed an application for the position of
Guidance Counselor but she was not appointed despite her qualifications and
assurance that she would be appointed. The RTC awarded moral damages,
but the CA reversed the decision on the ground that the act of respondents is
attributable to the USA, hence, they are immune from suit.

ANS: They are liable for damages in their personal capacities.

The rule that a State may not be sued without its consent, now expressed
in Section 3, Article XV1 of the 1987 Constitution, is one of the generally
accepted principles of international law that we have adopted as part of the law
of our land under Section 2, Article II. This latter provision merely reiterates a
policy earlier embodied in the 1935 and 1973 Constitutions and also intended to
manifest our resolve to abide by the rules of the international community. (USA
vs. Guinto, G.R. No. 76607, Feb. 26, 1990).

58
While the doctrine appears to prohibit only suits against the State without
its consent, it is also applicable to complaints filed against officials of the State
for acts allegedly performed by them in the discharge of their duties. The rule is
that, If the judgment against such officials will require the State itself to perform
an affirmative act to satisfy the same, such as the appropriation of the amount
needed to pay the damages awarded against them, the suit must be regarded as
against the State itself although it has not been formally impleaded. It must be
noted, however, that the rule is not so all-encompassing as to be applicable
under all circumstances

It is a different matter where the public official is made to account in his


capacity as such, for acts contrary to law and injurious to the right of plaintiff. As
was clearly set forth by Justice Zaldivar in Director of the Bureau
Telecommunications, et al., vs. Aligaen, et al., (33 SCRA 368): “In much as the
State authorizes only legal acts by its officers, unauthorized acts of government
officials or officers are not acts of the State, and an action against the officials or
officers by one whose rights have been invaded or violated by such acts, for the
protection of his rights, it not a suit against the State within the rule of immunity
of the State from a suit. In the same tenor, it has been said that an action at law or
suit in equity against a State officer or the director of a State department on the
ground that, while claiming to act for the State, he violates or invades the personal
and property rights of the plaintiff, under the unconstitutional act or under an
assumption of authority which he does not have, is not a suit against the State may
not be sued without its consent. The rationale for his ruling is that the doctrine of
State immunity cannot be used as an instrument for perpetrating an injustice.”
(Sanders vs. Veridiano, 162 SCRA 88).

In this case, they acted beyond the scope of their authority, hence, they are
personally liable. (Shauf, et al., vs. CA, et al., G.R. No. 90314, Nov. 17, 1990).

Q-- What is the true test in determining whether a suit against a public officer is
a suit against the State?

ANS: The test if the public officer or agency is sued and made liable, the State will have
to perform an affirmative act of appropriating the needed amount to satisfy the
judgment. If the State does so, 148 SCRA 424; Sanders vs. Veridiano, L-46930,
June 10, 1988).

Q-- If a government employee is performing his duties with the scope of his
functions and he is sued for damages, may the suit be filed without the
consent of the State? Why?

ANS: No, because the suit is actually a suit against the State which cannot be done
without its consent. In Republic vs. CA, 182 SCRA 721, it was held that an
action for damages filed against the Director of the Child and Youth Research
Center when she refused to reinstate the assistant director to his post because
there was no authorization to do so from the Minister of Education who had
temporarily reassigned him to another post will not prosper. She was acting
within her authority. The claim for damages was a suit against the State.

Q-- ICMC was one of those accredited by the Phil. Gov’t to operate the refugee
processing center. It was incorporated in the USA as a non-profit agency
involved in international humanitarian and voluntary work. In 1986, the
Trade Union of the Phil. Allied Services (TUPAS) file with the MOLE a
petition for certification election among the rank-and-file members,
employed by ICMC which was disapproved by the latter, contending that it
enjoys diplomatic immunity. It was dismissed by the Mid-Arbiter, but
reversed by BLR Director Pura-Calleja. At that time, ICMC’s application

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for recognition by the DFA was still pending. On July 15, 1988, its
application was approved, granting it the status of a specialized agency with
corresponding diplomatic privileges and immunities. It then sought the
dismissal of the petition, but the BLR denied it, hence, this petition.

ANS: The petition should be granted. The immunity granted being “from every form of
legal processes except in so far as in any particular case they have expressly
waived their immunity.” It is inaccurate to state that a certification election is
beyond the scope of the immunity for the reason that it is not a suit against ICMC.
A certification election cannot be viewed as an independent or isolated process. It
could trigger off a series of events in the collective bargaining process together
with related incidents and/or concerted activities, which could inevitably involve
ICMC in the “legal process,” which includes “any penal, civil and administrative
proceedings.” The eventuality of court litigation is neither remote and from
which international immunity are said to be functions. Clauses on jurisdictional
immunity are said to be standard provisions in the Constitutions of international
organizations. “The immunity covers the organizations concerned, its property
and its assets. It is equally applicable to proceedings in personam and
proceedings in rem.” (International Catholic Migration Commission vs. Hon.
Pura-Calleja, et al., G.R. No. 89331, Sept. 28, 1990; See also Callado vs. IRRI, 61
SCAD 204, G.R. No. 106483, May 22, 1995).

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