2013-Constitutional Law-Reminders by Atty. Carlo L. Cruz

JURISTS BAR REVIEW CENTER™ 2013 REMINDERS ON THE BILL OF RIGHTS, CITIZENSHIP and SUFFRAGE Carlo L. Cruz The POLICE POWER The police power may use both the power of taxation and the power of eminent domain as implements for the attainment of a legitimate police objective. Subsequent law prohibiting gambling upheld as a valid exercise of the police power. [Stone v. Mississippi, 101 US 814] In the context of municipal law, a law takes precedence as against a treaty obligation, for a treaty may never curtail or restrict the scope of the police power. [Ichong v. Hernandez, 101 Phil. 155] note - As has been observed by US constitutional scholars, a treaty has greater “dignity” than an executive agreement, because its constitutional efficacy is beyond doubt, a treaty having behind it the authority of the President, the Senate, and the people; a ratified treaty, unlike an executive agreement, takes precedence over any prior statutory enactment. [Bayan Muna v. Romulo - G.R. No. 159618, February 1, 2011] Exercise of the Police Power – primarily exercised by the legislature; may be delegated to the President and administrative boards as well as the lawmaking bodies on all municipal levels, including the barangays – vested in local government units under the general welfare clause of the Local Government Code. NOTE - The integration of the Philippine Bar under the Constitution does not make a lawyer a member of any group of which he is not already a member. “Such compulsion is justified as an exercise of the police power of the State.” [In re Edillon, 84 SCRA 554] THE LEGISLATURE MAY NOT BE COMPELLED [by mandamus] to exercise the police power. Tests for a Valid Exercise of the Police Power - [1] Lawful Subject - the interests of the public generally, as distinguished from those of a particular class, require the exercise of the police power, and [2] Lawful Means - the means employed are reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon the individual. Matters which have been recognized by the Supreme Court as lawful subjects – Billboards [Churchill & Tait v. Rafferty, 32 Phil. 580] – prices of prime commodities [Yakus v. White, 321 US 414] – six-year-old cabs [Taxicab Operators of Metro Manila v. Board of Transportation, 119 SCRA 597] – barber shops and massages services [Velasco v. Villegas, 120 SCRA 568] – heavy vehicles and public streets [Bautista v. Juinio, 127 SCRA 329] – video piracy [Tio v. Videogram Regulatory Board, 151 SCRA 208] – bouncing checks [Lozano v. Martinez, 146 SCRA 323] – private roads inside subdivisions [Sangalang v. IAC, 176 SCRA 719] - National Medical Admission Test – 3-test limitation rule [Dept. of Education v. San Diego, 180 SCRA 533] – free air time for COMELEC [Telecommunications and Broadcast Attorneys of the Philippines v. COMELEC, 289 SCRA 337] – Generics Act [Del Rosario v. Bengzon, 180 SCRA 521] – books of account [Yu Cong Eng v. Trinidad, 271 US 500] – EO 420 requiring government agencies and GOCCs to streamline their identification card systems – [KMU v. Director General-NEDA, April 19, 2006] BUT NOTE Ople v. Torres [293 SCRA 141], where the Supreme Court rejected a National ID System on the basis of the people’s right to privacy – the regulation of rates imposed by a public utility such as SURNECO [Surigao del Norte Electric Cooperative, Inc. v. Energy Regulatory Commission, G.R. No. 183626, October 4, 2010]; ban against the importation of used motor vehicles to protect the domestic industry [G.R. No. 164172 (Executive Secretary v. Subic Integrated Macro Ventures Corp.) and G.R. No. 168741 (Executive Secretary v. Motor Vehicle Importers Association of Subic Bay Freeport, Inc.), cited in Executive Secretary v. Forerunner Multi Resources, Inc. - G.R. No. 199324, January 7, 2013]; a law removing the remedy or right of redemption in cases of foreclosures of real estate mortgages already in place upon the effectivity of said new law [Goldenway Merchandising Corporation v. Equitable PCI Bank –G.R. No. 195540, March 13, 2013] Regulations which have been acknowledged by the Supreme Court as lawful means for attaining police power objectives - Leprosariums for lepers [Lorenzo v. Director of Health, 50 Phil. 595] – reasonable working hours and minimum wages [Ramos v. Poblete, 73 Phil. 241] - full-time pharmacist in drug stores [Roschen v. Ward, 277 US 337] – blood tests before issuance of a marriage license [Gould v. Gould, 61 Atl. 604] – limiting the capacity of common carriers, or theaters [People v. Chan, 65 Phil. 611] – sterilization of imbeciles [Buck v. Bell, 274 US 195] 1

Instances when the means for the attainment of an apparently legitimate police objective rejected for being unlawful – EO prohibiting the inter-provincial transport of carabaos to prevent their indiscriminate slaughter [Ynot v. IAC, 148 SCRA 659 - Note: SC commented on the absurdity of the method] – prohibition against the use of a material known as shoddy for the making of mattresses annulled, there being no basis for fear that it was inimical to the health of the user [Weaver v. Palmer Bros. Co., 270 US 402] – prohibition against distribution of handbills in public places (annulled on the ground of freedom of expression) [Jamison v. Texas, 318 US 413] – prohibition against wash room rates and renting out rooms more than twice a day, to minimize if not eliminate the use of the covered establishments for illicit sex, prostitution, drug use and alike. – you cannot legislate morality! [White Light Corporation v. City of Manila - G.R. No. 122846, January 20, 2009] – regulation of parking fees in malls - The power to regulate does not include the power to confiscate [OSG v. Ayala Land, Inc. - G.R. No. 177056, September 18, 2009] – ordinance regulating the construction of fences and walls [requiring setbacks and see through fences] [Fernando v. St. Scholastica’s College - G.R. No. 161107, March 12, 2013] Standards for Judicial Review [for the validity of ordinances] - strict scrutiny for laws dealing with freedom of the mind or restricting the political process, and the rational basis standard of review for economic legislation; heightened or immediate scrutiny, for evaluating classifications based on gender and legitimacy. The overbreadth doctrine applies when a statute needlessly restrains even constitutionally guaranteed rights. [White Light Corporation v. City of Manila - G.R. No. 122846, January 20, 2009] The POWER OF EMINENT DOMAIN The power of eminent domain may be exercised by the Legislature, the President, various local legislative bodies, certain public corporations like the Land Authority and even quasi-public corporations, like the PLDT and the PNR. (Water districts may be given the power to expropriate. [Metropolitan Cebu Water District v. J. King and Sons Company, Inc., G.R. No. 175983, April 16, 2009] Necessity of Exercise- The power of eminent domain should be construed liberally in favor of the property owner; courts can look into whether the expropriation by the delegate is necessary or wise, unless there is a specific, as opposed to a general, grant of authority to expropriate. [City of Manila v. Chinese Community, 40 Phil. 349; Republic of the Philippines v. La Orden de PP. Benedictinos de Filipinas, 1 SCRA 646] Private Property – anything that can come under the dominion of man – MUST BE WHOLESOME real, personal, tangible and intangible properties, franchises, churches and other religious properties, cemeteries EXCEPT money and choses in action because just compensation is usually paid also in money. SERVICES are considered embraced in the concept of property subject to taking. The subject of this case was the interconnection between the Government Telephone System and the PLDT, so that the former can use the lines and facilities of the PLDT. [RP v. PLDT, 26 SCRA 620] In PLDT v. NTC [190 SCRA 717], PLDT was required to interconnect with a private communications company Taking – imports a physical dispossession of the owner, deprivation of all beneficial use and enjoyment of his property. Requisites of Taking in Eminent Domain - [1] expropriator must enter a private property [2] entry must be for more than a momentary period [3] entry must be under warrant or color of legal authority [4] property must be devoted to public use or otherwise informally appropriated or injuriously affected [5] utilization of the property for public use must be in such a way as to oust the owner and deprive the owner of beneficial enjoyment of the property. [Republic v. Castelvi, 58 SCRA 336] Instances of Taking, as recognized by the Courts – Permanent inundation of a farmland because of the construction of a dam nearby [US v. Lynch, 18 US 445] – government planes constantly flying over private property at very low altitudes [US v. Causby, 328 US 256] – easement over a three-meter strip of private property [Ayala de Roxas v. City of Manila, 9 Phil. 215] – ordinance prohibiting the construction of any building which would obstruct the view of a plaza from a highway [People v. Fajardo, 104 Phil. 443] – COMELEC Resolution requiring newspapers to provide it with free space of not less than ½ page for the common use of political parties and candidates [Philippine Press Institute v. COMELEC, 244 SCRA 272] - right-of-way [aerial] easements, resulting in the restriction on property rights over land traversed by transmission lines [NPC v. Aguirre-Paderanga, 464 SCRA 481; National Power Corporation v. Purefoods 2

Corporation, G.R. No. 160725, September 12, 2008; National Power Corporation v. Co, G.R. No. 166973, February 10, 2009; National Power Corporation v. Ileto - G.R. No. 169957, July 11, 2012, Second Division, Brion] - exhaust fan in a tunnel directly blowing smoke into a house [Richards v. Washington Terminal, 233 US 546] – agrarian reform [Association of Small Landowners v. Secretary of Agrarian Reform, 175 SCRA 343] – construction of a tunnel under the land [National Power Corporation v. Heirs of Sangkay - G.R. No. 165828, August 24, 2011] - ordinance requiring private cemeteries to reserve 6% of their total areas to paupers [City Government of Quezon City v. Ericta, 122 SCRA 759] – effort to prohibit malls from collecting parking fees - The power to regulate, however, does not include the power to prohibit. The power to regulate does not include the power to confiscate. [OSG v. Ayala Land, Inc., G.R. No. 177056, September 18, 2009] – agrarian reform – stock distribution [Section 31 of RA6657 (CARL)] or collective ownership, provided control of the corporation or cooperative is vested in farmers-beneficiaries [Hacienda Luisita Incorporated v. Presidential Agrarian Reform Council - G.R. No. 171101, April 24, 2012] – ordinance requiring setback requirement for walls [to make available more parking space for free for the general public] [Fernando v. St. Scholastica’s College - G.R. No. 161107, March 12, 2013, En Banc, Mendoza] AN ORDINANCE requiring private cemeteries to reserve 6% of their total areas to paupers is not a valid exercise of the police power but an exercise of the power of eminent domain, which requires the payment of just compensation. [City Government of Quezon City v. Ericta, 122 SCRA 759] A COMELEC RESOLUTION requiring newspapers to provide it with free space of not less than ½ page for the common use of political parties and candidates constitutes taking of private property without payment of just compensation. [Philippine Press Institute v. COMELEC, 244 SCRA 272] Mere intention to expropriate does not bind the owner, who may still sell the property before actual expropriation. [People v. Fajardo, 104 Phil. 443] Public Use – any use directly available to the general public as a matter of right and not merely forbearance or accommodation. Examples – parks which are res communes; agrarian reform [Association of Small Landowners v. Secretary of Agrarian Reform, 175 SCRA 343]; property devoted to public services administered by privately-owned public utilities, like telephone or light companies (demandable as a matter of right by anyone prepared to pay for said services) [Denieter Land Co. v. Florida Public Service Co., 128 S0. 402] - pilot development center [Province of Camarines Sur v. CA , 222 SCRA 173]; expropriation for slum clearance and urban development is for a public purpose even if the developed area is later sold to private homeowners, commercial firms, entertainment and service companies and other private concerns [Reyes v. NHA, 395 SCRA 494]; urban land reform and housing, or socialized housing program involving only a one-half hectare area [Manapat v. Court of Appeals, G.R. No. 110478, October 15, 2007]; socialized housing, whereby housing units are distributed and/or sold to qualified beneficiaries on much easier terms, has already been included in the expanded definition of “public use or purpose” in the context of the State’s exercise of the power of eminent domain. [Sumulong v. Guerrero, No. L-48685, September 30, 1987, 154 SCRA 461, citing the earlier case of Heirs of Juancho Ardona v. Reyes, Nos. L-60549, 6055360555, October 26, 1983, 125 SCRA 220, cited in [City of Manila v. Te – G.R. No. 169263, September 21, 2011, Third Division, Peralta] - Property already devoted to public use can still be expropriated. [City of Manila v. Chinese Community, 40 Phil. 349] There is collective ownership as long as there is a concerted group work by the farmers on the land, regardless of whether the landowner is a cooperative, association or corporation composed of farmers. However, this definition of collective ownership should be read in light of the clear policy of the law on agrarian reform, which is to emancipate the tiller from the bondage of the soil and empower the common people. Worth noting too is its noble goal of rectifying “the acute imbalance in the distribution of this precious resource among our people.” [Association of Small Landowners in the Philippines, Inc. v. Secretary of Agrarian Reform, G.R. No. 78742, July 14, 1989, 175 SCRA 343, 352] Accordingly, HLI’s insistent view that control need not be in the hands of the farmers translates to allowing it to run roughshod against the very reason for the enactment of agrarian reform laws and leave the farmers in their shackles with sheer lip service to look forward to. [Hacienda Luisita Incorporated v. Presidential Agrarian Reform Council - G.R. No. 171101, April 24, 2012] In expropriation proceedings, the value of the land and its character at the time it was taken by the government are the criteria for determining just compensation. [Philipine National Oil Company v. Maglasang, G.R. No. 155407, November 11, 2008] Property taken should be assessed as of the time of the taking, which usually coincides with the commencement of expropriation proceedings. [Republic v. Castelvi, 58 SCRA 336]

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Just Compensation – full and fair equivalent of he property taken; must be fair to both parties. THE DETERMINATION OF JUST COMPENSATION is a judicial function [Land Bank of the Philippines v. Escandor, G.R. No. 171685, October 11, 2010] Payment of just compensation in bonds is allowed. [Association of Small Landowners v. Secretary of Agrarian Reform, 175 SCRA 343] THE PRESENCE OF TRANSMISSION LINES undoubtedly restricts respondent’s use of his property. Petitioner is thus liable to pay respondent the full market value. [National Power Corporation v. Co, G.R. No. 166973, February 10, 2009] Payment of just compensation shall be made to the owner, which refers to all those who have lawful interest in the property, including a mortgagee, a lessee and a vendee. [Knecht v. CA, 207 SCRA 754] BUT see Land Bank of the Philippines v. AMS Farming Corporation [G.R. No. 174971, October 15, 2008] - Since AMS was not a landowner, but a mere lessee of the agricultural land owned by TOTCO, it had no right under the CARL to demand from LBP just compensation for its standing crops and improvements. As a lessee, the rights of AMS over its standing crops and improvements on the leased property are defined, conferred, as well as limited by the provisions of the MOA it executed with TOTCO. Just compensation was determined in 1973 as of the time of the taking of the property in 1924. However, the Supreme Court did not apply Article 1250 of the Civil Code calling for the adjustment of the peso rate in times of extraordinary inflation or deflation because, in eminent domain cases. “The obligation to pay arises from law, independent of contract.” [Commissioner of Public Highways v. Burgos, 96 SCRA 831] Administrative agencies have no jurisdiction over just compensation cases. Thus, as a rule, the DARAB’s decision setting the amount of just compensation is merely preliminary and not executory if challenged before the SAC. xxx. The determination of the amount of just compensation is a judicial function that cannot be usurped by administrative agencies. [Land Bank v. Heirs of Listana, G.R. No. 182758, May 30, 2011] The owner is entitled to payment of interest from the time of taking until actual payment of just compensation; interest must be claimed or is deemed waived. [Urtula v. Republic, 22 SCRA 477] Interest of 12% per annum on the just compensation is due the landowner in case of delay in payment, which will, in effect, make the obligation on the part of the government one of forbearance. [Land Bank of the Philippines v. Chico, G.R. No. 168453, March 13, 2009] Taxes paid by the owner from the time of the taking until actual transfer of title are reimbursable by the expropriator. [City of Manila v. Roxas, 60 Phil. 215] Title to the property shall not be transferred until after actual payment of just compensation. [Visayan Refining Co. v. Camus, 40 Phil. 550] The failure for a long time of the owner to question the lack of expropriation proceedings covering a property that the government had taken constitutes a waiver of his right to gain back possession. The Mendozas’ remedy is an action for the payment of just compensation, not ejectment. [Republic v. Mendoza, G.R. No. 185091, August 8, 2010, 2nd Division, Abad] LGUs may expropriate but ordinances, and not mere resolutions, would be needed for them to do so. [Yusay v. Court of Appeals, G.R. No. 156684, April 6, 2011] The action to recover just compensation from the State or its expropriating agency differs from the action for damages. The former, also known as inverse condemnation, has the objective to recover the value of property taken in fact by the governmental defendant, even though no formal exercise of the power of eminent domain has been attempted by the taking agency. [According to 29A CJS, Eminent Domain, §381: “Inverse condemnation is a cause of action against a governmental defendant to recover the value of property which has been taken in fact by the governmental defendant, even though no formal exercise of the power of eminent domain has been attempted by the taking agency. While the typical taking occurs when the government acts to condemn property in the exercise of its power of eminent domain, the entire doctrine of inverse condemnation is predicated on the proposition that a taking may occur without such formal proceedings. The phrase “inverse condemnation,” as a common understanding of that phrase would suggest, simply describes an action that is the “inverse” or “reverse” of a condemnation proceeding.”] [National Power Corporation v. Heirs of Sangkay - G.R. No. 165828, August 24, 2011, First Division, Bersamin] The POWER OF TAXATION Distinguish from licenses [for regulatory purposes; exercise of the police power]. Taxes are for purposes of raising revenues. - Includes all properties, whether tangible or intangible, found in the 4

territory of the taxing jurisdiction - even shares of stock issued by a foreign corporation, but “in action” in the local state may be taxed by it [Wells Fargo v. CIR, 40 OG 159]; also insurance proceeds from a policy issued abroad [Manila Electric Co. v. Yatco, 69 Phil. 89] Tax on knowledge not allowed - a tax based on circulation was annulled for being process and freedom of expression. [Grosjean v. American Press Co., 297 US 233]

violative of due

Double taxation – when additional taxes are laid on the same subject by the same taxing jurisdiction during the same taxing period and for the same purpose. There is no specific prohibition in the Constitution against double taxation. No Supreme Court decision also. “Double taxation is no more prohibited than doubled taxation.” “The power to tax twice is as ample as to tax once.” An additional P25 tax on professionals who were already paying the P50 occupation tax under the Revised Internal Revenue Code would be valid - different taxing jurisdictions – local and national. [Punzalan v. Municipal Board of Manila, 95 Phil. 46] Possible remedy – if the second tax constitutes a violation of the equal protection clause. In the Punzalan case, the SC said there was no violation of the equal protection clause because there was a substantial distinction between practitioners in Manila as opposed to practitioners elsewhere, who earned less. Public Purpose – a tax must be for a public purpose – the mere fact that a tax will be directly enjoyed only by a private individual will not make it invalid so long as some link to the public welfare is established. Examples – cash incentives for athletes; pensions paid to veterans; unemployment relief; support for the handicapped, etc. A tax levy [LOI No. 1695] on sale of fertilizers for purposes of benefiting a private corporation, Philippine Planters, Inc. is invalid. Not even a valid exercise of the police power. [Planters Products Inc. v. Fertiphil Corporation, G.R. No. 166006, March 14, 2008] The imposition of a vehicle registration fee is not an exercise by the State of its police power, but of its taxation power - mainly to raise funds for the construction and maintenance of highways and to a much lesser degree, pay for the operating expenses of the administering agency. x x x Fees may be properly regarded as taxes even though they also serve as an instrument of regulation. [Philippine Airlines, Inc. v. Edu, G.R. No. L-41383, August 15, 1988, 164 SCRA 320] The term "tax" frequently applies to all kinds of exactions of monies which become public funds. It is often loosely used to include levies for revenue as well as levies for regulatory purposes such that license fees are frequently called taxes although license fee is a legal concept distinguishable from tax: the former is imposed in the exercise of police power primarily for purposes of regulation, while the latter is imposed under the taxing power primarily for purposes of raising revenues. [Compania General de Tabacos de Filipinas v. City of Manila, 118 Phil. 383; 8 SCRA 370 (1963); Pacific Commercial Co. v. Romualdez, 49 Phil, 917 (1927)] Thus, if the generating of revenue is the primary purpose and regulation is merely incidental, the imposition is a tax; but if regulation is the primary purpose, the fact that incidentally revenue is also obtained does not make the imposition a tax. [Manila Electric Company v. El Auditor General y La Comision de Servicios Publicos, 73 Phil. 133 (1941); Republic v. Philippine Rabbit Bus Lines, 32 SCRA 215 (1970)] xxx. As a general rule, there must be a statutory grant for a local government unit to impose lawfully a gross receipts tax, that unit not having the inherent power of taxation. The rule, however, finds no application in the instant case where what is involved is an exercise of, principally, the regulatory power of the respondent City and where that regulatory power is expressly accompanied by the taxing power. [Progressive Development Corporation v. Quezon City, G.R. No. 36081, April 24, 1989, 172 SCRA 629, 636, citing Saldaña v. City of Iloilo, 104 Phil. 28, 33 (1958)] [SEE Angeles University Foundation v. City of Angeles, G.R. No. 189999, June 27, 2012, First Division, Villarama – where the issue pertained to the validity of building permit fees.] The coconut levy was imposed in the exercise of the State’s inherent power of taxation. [See Republic v. COCOFED, G.R. No. 147062-64, December 14, 2001, 372 SCRA 462, 482-84] Tax Exemptions – may be constitutional [Article VI, Section 28[3] – churches, etc. – [Lladoc v. CIR, 14 SCRA 292] or statutory [Article VI, Section 28[4] - concurrence of a majority of all the members of congress required for laws granting tax exemptions]. - Where the tax exemption is granted gratuitously, it may be validly revoked at will, with or without cause BUT if the exemption is granted for a valuable consideration, it partakes of the nature of a contract and the obligation is protected against impairment [Casanova v. Hord, 8 Phil. 125] The BILL OF RIGHTS Due Process and Equal Protection 5

Person – all persons, natural as well as artificial, are covered; including aliens [Villegas v. Hiu Chong Tsai Pao Ho, 86 SCRA 270] – Artificial persons are covered but only insofar as their property is concerned. [Smith Bell & Co. v. Natividad, 40 Phil. 136] Deprivation – to take away forcibly; to prevent from possessing, enjoying or using something. Deprivation per se is not necessarily unconstitutional; what is prohibited is deprivation of life, liberty or property without due process of law. Life connotes in the first place the integrity of the physical person. It can be validly claimed by law, as in the imposition of the death penalty [for a heinous offense, not for a petty offense] or when a person is required to render personal military service. The compulsory sterilization of incurable hereditary imbeciles was considered all right since the operation only involved “a minimum of pain, or none at all.” [Buck v. Bell, 274 US 200] - The SC considered as confiscatory a municipal ordinance prohibiting the construction on residential land of any building that might obstruct the view of the public plaza from the highway. [People v. Fajardo, 104 SCRA 443] Substantive Due Process – requires the intrinsic validity of the law in interfering with the rights of the person with respect to his life, liberty and property. Requirements – [1] the law must have a valid governmental objective, i.e., the interests of the public generally as distinguished from those of a particular class require the intervention of the State; and [2] the objective must be pursued in a lawful manner; the means employed must be reasonably related to the accomplishment of the purpose and not unduly oppressive. A law prohibiting the sale of milk for less than the specified minimum or floor price, to prevent the lowering of the quality of milk sold in the market, upheld as valid. [Nebbia v. State of New York, 291 US 502] A law was annulled as violative of substantive due process where it was shown that the rates prescribed by it for railroad companies, while allowing them some profit, did not permit them a reasonable return of their investments. [Chicago, Milwaukee & St. Paul Railway v. Minnesotta, 134 US 118] A municipal ordinance required all laundry establishments to issue their receipts in English or Spanish. Valid, as the measure seeks to protect the public from deceptions and misunderstandings. [Kwong Sing v. City of Manila, 41 Phil. 103] A law prohibited merchants from maintaining its books of accounts in any language other than English, Spanish or any other local dialect. Invalid because it prevented merchants from using other languages, including their own. [Yu Cong Eng v. Trinidad, 271 US 500] - A criminal investigation undertaken by an agency which, under the law, is likewise responsible for the conduct of a preliminary investigation leading to a criminal prosecution would not be violative of due process. [Concio v. DOJ, G.R. No. 175057, January 29, 2008] - No violation of due process when an investigating prosecutor files an information or dismisses a complaint cognizable by the MTCC without first requiring the submission of counter-affidavits. [Borlongan v. Pena, G.R. No. 143591, November 23, 2007] - A reevaluation does not necessitate the introduction of new materials for review nor does it require a full hearing for new arguments. In this light, the respondent has been given the opportunity to be heard by the DOLE Secretary. [NASECO Guards Association v. National Service Corporation, G.R. No. 165442, August 25, 2010] A law which imposes a 3-month cap on the claim of OFWs with an unexpired portion of one year or more in their contracts, but none on the claims of other OFWs or local workers with fixed-term employment, is violative of substantive due process. (Also violative of the equal protection clause – suspect classification.) [Serrano v. Gallant Maritime Services, Inc., G.R. No. 167614, March 24, 2009] The concept of “vested right” is a consequence of the constitutional guaranty of due process that expresses a present fixed interest which in right reason and natural justice is protected against arbitrary state action; it includes not only legal or equitable title to the enforcement of a demand but also exemptions from new obligations created after the right has become vested. Rights are considered vested when the right to enjoyment is a present interest, absolute, unconditional, and perfect or fixed and irrefutable. [Heirs of Arcadio Castro Sr. v. Lozada - G.R. No. 163026, August 29, 2012, First Division, Villarama] While one may not be deprived of his “vested right,” he may lose the same if there is due process and such deprivation is founded in law and jurisprudence. [Quiao v. Quiao - G.R. No 176556, July 4, 2012, Second Division, Reyes] Procedural Due Process - The twin requirements of notice and hearing constitute the essential elements of due process and neither of these elements can be eliminated without running afoul of the constitutional guaranty. - Judicial Due Process – [1] impartial court or tribunal clothed with judicial power to hear and determine the case; [2] jurisdiction must be lawfully acquired over the person and the 6

property subject of the proceeding proper service of summons; [3] defendant must be given an opportunity to be heard; [4] judgment must be rendered upon lawful hearing. THE AWARD OF 5% MONTHLY INTEREST RATE is not supported both by the allegations in the pleadings and the evidence on record. xxx It violated the due process requirement because respondents were not informed of the possibility that the RTC may award 5% monthly interest. They were deprived of reasonable opportunity to refute and present controverting evidence as they were made to believe that the complainant petitioner was seeking for what she merely stated in her Complaint. [Diona v. Balangue G.R. No. 173559, January 7, 2013, Second Division, del Castillo] Right to appeal lost through neglect; no denial of due process. [Lobete v. Sundiam, 123 SCRA 95] Right to Appeal is not essential to a right to a hearing; may be deprived except for Art. VIII,[5],[2], on the minimum appellate jurisdiction of the Supreme Court. - The right to cross-examine is not an indispensable aspect of due process. Clearly, the right to cross-examine a witness, although a fundamental right of a party, may be waived. [Equitable PCIBanking Corporation v. RCBC Capital Corporation, G.R. No. 182248, December 18, 2008] Counsel asked for reinvestigation and asked to defer proceedings until reinvestigation was concluded; judge said trial should proceed; counsel did not participate; on appeal, trial was set aside; “serious irregularity” – violative of due process [People v. Beriales, 70 SCRA 361] Instances when notice of hearing may be validly omitted without violating due process – cancellation of a passport of a fugitive from justice; preventive suspension of a civil servant; distraint of property for tax delinquency; padlocking of unsanitary restaurant or movie theaters showing obscene movies; nuisances per se. - Nuisance per se – objectionable under any circumstance because it presents an immediate danger to the welfare of the community – mad dog – may be abated without necessity of judicial authorization. - Nuisance per accidens – objectionable only under some but not all circumstances. A nuisance per accidens may be summarily abated if authorized by law, provided the nuisance per accidens is of trifling value only. [Lawton v. Steele, 152 US 133] Only nuisances per se may be summarily abated. [Civil Code, Article 704] An industrial waste processing plant is not a nuisance per se. Accordingly, its operations may be ordered stopped only after judicial proceedings. [Parayno v. Jovellanos, 495 SCRA 85] A market stall not affected by a recent fire is not a public nuisance and may not be abated without judicial proceedings [Asilo v. People, GR No. 159017-18, March 9 2011] Clearly, when Justice Gancayco was given a permit to construct the building, the city council or the city engineer did not consider the building, or its demolished portion, to be a threat to the safety of persons and property. This fact alone should have warned the MMDA against summarily demolishing the structure. Neither does the MMDA have the power to declare a thing a nuisance. Only courts of law have the power to determine whether a thing is a nuisance. [AC Enterprises v. Frabelle Properties Corp., [G.R. No. 166744, 2 November 2006, 506 SCRA 625, 660-661] [Gancayco v. City Government of Quezon City - G.R. No. 177807, October 11, 2011, En Banc, Sereno] Respondents’ fence is not a nuisance per se. By its nature, it is not injurious to the health or comfort of the community. It was built primarily to secure the property of respondents and prevent intruders from entering it. And as correctly pointed out by respondents, the sidewalk still exists. If petitioner believes that respondents’ fence indeed encroaches on the sidewalk, it may be so proven in a hearing conducted for that purpose. Not being a nuisance per se, but at most a nuisance per accidens, its summary abatement without judicial intervention is unwarranted. [Lucena Grand Central Terminal, Inc. v. JAC Liner, Inc., G.R. No. 148339, February 23, 2005, 452 SCRA 174, 191, cited in Perez v. Spouses Madrona and Pante - G.R. No. 184478, March 21, 2012, First Division, Villarama] Violation of due process is a personal defense that can only be asserted by the persons whose rights have been allegedly violated. [Napere v. Barbarona, G.R. No. 160426, January 31, 2008; Carandang v. Heirs of Quirino A. De Guzman, G.R. No. 160347, November 29, 2006, 508 SCRA 469, 480] Equal Protection – A flight attendant is dismissed for being fat. Private actions cannot violate the equal protection guarantee. The equal protection clause does not apply to private conduct, however discriminatory or wrongful. [Yrasuegui v. Philippine Air Lines, G.R. No. 168081, October 17, 2008] Requirements for a Valid Classification - [1] substantial distinctions [2] germane to the purpose of the law [3] must not be limited to existing conditions only [4] must apply equally to all members of the class.

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[1] Substantial Distinctions - cannot be based on color of attire or of vehicles, emotions, shape or color of eyes/can be based on height, weight, health [lepers], age, allegiance or citizenship. - 65 year olds not allowed to run for same office from which they have retired. Valid. [Dumlao v. COMELEC, 95 SCRA 392] - The classification of cities as highly urbanized cities if they had an annual revenue of P40 Million and all others as component cities is valid. use. [Ceniza v. COMELEC, 96 SCRA 763] RA 6770, which authorizes the Ombudsman to impose a six-month preventive suspension, instead of the civil service provisions of the Administrative Code, which limits the disciplining authority’s prerogative to only imposing a prevention suspension for a period not exceeding 90 days, does not violate the equal protection guarantee. Substantial distinctions exist. [Gobenciong v. Court of Appeals, G.R. No. 159883, March 31, 2008] There is a substantial distinction between appointive and elective officials. [Quinto v. COMELEC, G.R. No. 189698, December 1, 2009, [MR] February 22, 2010, Puno] Executive Order No. 1 should be struck down as violative of the equal protection clause. The clear mandate of the envisioned truth commission is to investigate and find out the truth “concerning the reported cases of graft and corruption during the previous administration” only. [Biraogo v. The Philippine Truth Commission of 2010, G.R. No. 192935, December 10, 2010] A substantial distinction exists between municipalities with pending Cityhood bills prior to the subsequent passage of a law increasing the revenue requirement of cities [to P100T] and those which seek Cityhood on the basis of the new law. [League of Cities of the Philippines v. COMELEC, G.R. No. 176951, April 12, 2011] The equal protection clause means that no person or class of persons shall be deprived of the same protection of laws enjoyed by other persons or other classes in the same place in like circumstances. Thus, the guarantee of the equal protection of laws is not violated if there is a reasonable classification. For a classification to be reasonable, it must be shown that (1) it rests on substantial distinctions; (2) it is germane to the purpose of the law; (3) it is not limited to existing conditions only; and (4) it applies equally to all members of the same class. [Philippine Rural Electric Cooperatives Association, Inc. v. DILG, 451 Phil. 683 (2003)] Unfortunately, CMO 27-2003 does not meet these requirements. We do not see how the quality of wheat is affected by who imports it, where it is discharged, or which country it came from. Thus, on the one hand, even if other millers excluded from CMO 27-2003 have imported food grade wheat, the product would still be declared as feed grade wheat, a classification subjecting them to 7% tariff. On the other hand, even if the importers listed under CMO 27-2003 have imported feed grade wheat, they would only be made to pay 3% tariff, thus depriving the state of the taxes due. The regulation, therefore, does not become disadvantageous to respondent only, but even to the state. [Commissioner of Customs v. Hypermix Feeds Corporation - G.R. No. 179579, February 1, 2012, Second Division, Sereno] The subject clause contains a suspect classification in that, in the computation of the monetary benefits of fixed-term employees who are illegally discharged, it imposes a 3-month cap on the claim of OFWs with an unexpired portion of one year or more in their contracts, but none on the claims of other OFWs or local workers with fixed-term employment. The subject clause singles out one classification of OFWs and burdens it with a peculiar disadvantage. [Serrano v. Gallant Maritime Services, Inc., G.R. No. 167614, March 24, 2009] Republic Act No. 9262 has been upheld by the Supreme Court as against a challenge as to its constitutionality on the ground of its purported violation of the equal protection clause, as it applies only to women, and not to men. The Court cited “the unequal power relationship between women and men” and “the fact that women are more likely than men to be victims of violence,” not to mention “the widespread gender bias and prejudice against women” as basic distinctions between women and men which justify the “classification under the law.” [Garcia v. Drilon, G.R. No. 179267, June 25, 2013] [2] Germane to the Purpose of the Law - Examples – there are substantial distinctions between men v. women with respect to the performance of hard labor as against passing grades in examinations, or between foreign v. local cars with respect to taxes, but not in the context of traffic violations. [3] Must not be limited to existing conditions only - The classification must be enforced not only for the present but as long as the problem sought to be corrected exists. - A law prohibited members of nonChristian tribes form drinking liquor, on the ground that their low degree of culture and their unfamiliarity with this kind of drink rendered them more susceptible to its effects as compared to more civilized countrymen who were not affected by it. Law SUSTAINED. [People v. Cayat, 68 Phil. 12] - A tax was limited only to Ormoc Sugar Company [specifically named in the ordinance], which was then the only sugar company in the area. Classification not limited to existing conditions, as the tax measure would not be applicable to similar companies which may be established in the same taxing jurisdiction in the future. [Ormoc Sugar Co., Inc. v. Treasurer of Ormoc City, 22 SCRA 603]

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[4] Must apply equally to all members of the class. - The classification will be regarded as invalid if all the members of the class are not similarly treated, both as to rights conferred and obligations imposed. The law can treat barangay officials differently from other local elective officials because the Constitution itself provides a significant distinction between these elective officials with respect to length of term and term limitation. [COMELEC v. Cruz, G.R. No. 186616, November 20, 2009] SEARCHES and SEIZURES A search warrant proceeding is, in no sense, a criminal action or the commencement of a prosecution. The proceeding is not one against any person, but is solely for the discovery and to get possession of personal property. It is a special and peculiar remedy, drastic in nature, and made necessary because of public necessity. It resembles in some respect with what is commonly known as John Doe proceedings. While an application for a search warrant is entitled like a criminal action, it does not make it such an action. A search warrant is a legal process which has been likened to a writ of discovery employed by the State to procure relevant evidence of crime. It is in the nature of a criminal process, restricted to cases of public prosecutions. A search warrant is a police weapon, issued under the police power. A search warrant must issue in the name of the State, namely, the People of the Philippines. A search warrant has no relation to a civil process. It is not a process for adjudicating civil rights or maintaining mere private rights. It concerns the public at large as distinguished from the ordinary civil action involving the rights of private persons. It may only be applied for in the furtherance of public prosecution. [United Laboratories, Inc. v. Isip (500 Phil. 342 (2005)), at 357-358] The basic flaw in this reasoning is in erroneously equating the application for and the obtention of a search warrant with the institution and prosecution of a criminal action in a trial court. It would thus categorize what is only a special criminal process, the power to issue which is inherent in all courts, as equivalent to a criminal action, jurisdiction over which is reposed in specific courts of indicated competence. It ignores the fact that the requisites, procedure and purpose for the issuance of a search warrant are completely different from those for the institution of a criminal action. For, indeed, a warrant, such as a warrant of arrest or a search warrant, merely constitutes process. A search warrant is defined in our jurisdiction as an order in writing issued in the name of the People of the Philippines signed by a judge and directed to a peace officer, commanding him to search for personal property and bring it before the court. A search warrant is in the nature of a criminal process akin to a writ of discovery. It is a special and peculiar remedy, drastic in its nature, and made necessary because of a public necessity. [Malaloan v. Court of Appeals - G.R. No. 104879, May 6, 1994, 232 SCRA 249, cited in PLDT v. HPS Software and Communication Corporation - G.R. No. 170694, December 10, 2012, First Division, Leonardo-de Castro] Since a search warrant proceeding is not a criminal action, it necessarily follows that the requirement set forth in Section 5, Rule 110 of the Rules on Criminal Procedure which states that "all criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of a public prosecutor" does not apply. [PLDT v. HPS Software and Communication Corporation - G.R. No. 170694, December 10, 2012, First Division, Leonardo-de Castro] A private individual or a private corporation complaining to the NBI or to a government agency charged with the enforcement of special penal laws, such as the BFAD, may appear, participate and file pleadings in the search warrant proceedings to maintain, inter alia, the validity of the search warrant issued by the court and the admissibility of the properties seized in anticipation of a criminal case to be filed; such private party may do so in collaboration with the NBI or such government agency. The party may file an opposition to a motion to quash the search warrant issued by the court, or a motion for the reconsideration of the court order granting such motion to quash. [United Laboratories, Inc. v. Isip G.R. No. 169156, February 15, 2007, 516 SCRA 62, at 68-69, cited in PLDT v. HPS Software and Communication Corporation - G.R. No. 170694, December 10, 2012, First Division, Leonardo-de Castro] AVAILABE to all persons, including aliens, whether accused of crime or not [Moncado v. People’s Court, 80 Phil. 1], and even corporations [Stonehill v. Diokno, 20 SCRA 383], although they may be required to open their books of accounts for examination by the State in the exercise of the police power or the power of taxation. The guaranty may be invoked by a person inside a phone booth (eavesdropping on an accused in a public phone booth – unless with a warrant – is illegal) [Katz v. US, 389 US 347], or even by known criminals or fugitives – one cannot just force his way into any man’s house on the illegal orders of a superior, however lofty his rank. [Alih v. Castro, 151 SCRA 279]

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REQUISITES for a valid Search Warrant or Warrant of Arrest – [1] It must be based on probable cause. [2] Probable cause must be determined personally by the judge. [3] The determination must be made after examination under oath or affirmation of the complainant and the witnesses he may produce. [4] The warrant must particularly describe the place to be searched and the persons or things to be seized. The production order under the Amparo Rule should not be confused with a search warrant for law enforcement under Article III, Section 2 of the 1987 Constitution. [Secretary of National Defense v. Manalo, G.R. No. 180906, October 7, 2008] A bank inquiry order, under Section 11 of the AMLA, is not a search warrant or warrant of arrest as it contemplates a direct object but not the seizure of persons or property. [Republic of the Philippines v. Eugenio, G.R. No. 174629, February 14, 2008] [1] Probable cause - There is a distinction between the preliminary inquiry, which determines probable cause for the issuance of a warrant of arrest, and the preliminary investigation proper, which ascertains whether the offender should be held for trial or be released. The determination of probable cause for purposes of issuing a warrant of arrest is made by the judge. The preliminary investigation proper – whether or not there is reasonable ground to believe that the accused is guilty of the offense charged – is the function of the investigating prosecutor. [People v. Gabo, G.R. No. 161083, August 3, 2010] Rules of Court, Rule 126, Section 3 – each warrant should refer only to one specific offense. Examples of invalid warrants - A warrant which alleges violations of CB circulars, Tariff and Customs laws, the Internal Revenue Code and the Revised Penal Code [Stonehill v. Diokno, 20 SCRA 383], or for four separate and distinct offenses [Asian Surety & Insurance v. Herrera, 54 SCRA 312], or for “illegal traffic in narcotics and contraband” [Castro v. Pabalan, 70 SCRA 477], or a scatter-shot warrant, for robbery, theft, qualified theft or Estafa [People v. CA, 216 SCRA 101] - “hoarding” of used bottles is not a crime or offense. [Coca-Cola Bottlers Phils., Inc. v. Gomez, G.R. No. 154491, November 14, 2008] - It is quite obvious then that their cause of action arose out of the intrusion into their established goodwill involving the two motorcycle models and not patent infringement. No offense specified. Search warrant INVALID. [Hon Ne Chan v. Honda Motor Co., Ltd., G.R. No. 172775, December 19, 2007] [2] Probable cause must be determined personally by the judge. - Warrants of arrest may be issued by administrative authorities only for the purpose of carrying out a final finding of a violation of law, like an order of deportation or an order of contempt, and not for the sole purpose of investigation or prosecution. [Board of Commissioners v. de la Rosa, 197 SCRA 853] [3] The determination must be made after examination under oath or affirmation of the complainant and the witnesses he may produce. - (Regional Trial Court] judges need not personally examine the complainant and his witnesses for purposes of determining probable cause for the issuance of a warrant of arrest [Soliven v. Makasiar, 167 SCRA 393] Evaluation of the documents relevant to probable cause must be done personally by the [RTC] judge. [Enrile v. Salazar, 186 SCRA 217] Affidavit based on “reliable information” – “correct to the best of his knowledge and belief” – cannot be used as basis for a search warrant [Alvarez v. CFI, 64 Phil. 33] - Mere affidavits not enough to issue a search warrant; judge must take depositions in writing and attach them to the record as these are necessary to determine the existence of probable cause. [Mata v. Bayona, 128 SCRA 388] [4] The warrant must particularly describe the place to be searched and the persons or things to be seized. - John Doe warrants are generally not valid [Commonwealth v. Crotty, 10 Allen (Mass.) 403] but a warrant against a John Doe described in the same as the “person occupying and in control of a building at a specified address” was considered valid. [People v. Veloso, 48 Phil. 169] - A description of a place to be searched is sufficient if the officer with the warrant can, with reasonable effort, ascertain and identify the place intended. [People v. Veloso, 48 Phil. 169] - A search warrant need not identify with particularity the person against whom it is directed; it suffices that the place to be searched and things to be seized are described. [People v. Lagman, G.R. No. 168695, December 8, 2008] The CA held that the proceedings before the Makati RTC and the Muntinlupa RTC are separate and distinct. The object of the motion to quash search warrant, here filed by respondents Pastrana and Abad with the Makati RTC, the issuing court, was to test the validity of its issuance, given that the warrant was made to cover several offenses rather than just one as the rules provide. On the other hand, the object of the Muntinlupa injunction case is to prevent the three agencies from using the seized articles in any criminal proceeding against Mendoza, et al. considering the SEC and the NBI’s failure to immediately 10

turn over the seized articles to the court that issued the warrant as the rules require. But Section 14 of Rule 126 is clear. Questions concerning both 1) the issuance of the search warrant and 2) the suppression of evidence seized under it are matters that can be raised only with the issuing court if, as in the present case, no criminal action has in the meantime been filed in court. [Securities and Exchange Commission v. Mendoza - G.R. No. 170425, April 23, 2012, Third Division, Abad] General warrants not allowed – “records pertaining to all business transactions.” [Stonehill v. Diokno, 20 SCRA 383] - “equipment used as means for committing offenses” - not allowed – general warrant. [Burgos v. Chief of Staff, 133 SCRA 800] - “books, documents, receipts, lists, chits and other papers used by him in connection with his activities as money-lender, charging a usurious interest, in violation of law” – valid description. [Alvarez v. CFI, 64 Phil.33] - “documents, papers and other records of the CPP/NPA/NDF, such as minutes of the party meetings, plans of these groups, programs, list of possible supporters, subversive books and instructions, manuals not otherwise available to the public and support money from foreign or local sources. – NOT VALID – vaguely described and not particularized. Does not specify, among others, what subversive books and instructions, etc. [Nolasco v. Pano, 139 SCRA 152] Anent the second argument, petitioner asserts that the nipa hut located about 20 meters away from his house is no longer within the “permissible area” that may be searched by the police officers due to the distance and that the search warrant did not include the same nipa hut as one of the places to be searched. The OSG, on the other hand, argues that the constitutional guaranty against unreasonable searches and seizure is applicable only against government authorities and not to private individuals such as the barangay tanod who found the folded paper containing packs of shabu inside the nipa hut. xxx. Having been established that the assistance of the barangay tanods was sought by the police authorities who effected the searched warrant, the same barangay tanods therefore acted as agents of persons in authority. By virtue of the above provisions, the police officers, as well as the barangay tanods were acting as agents of a person in authority during the conduct of the search. Thus, the search conducted was unreasonable and the confiscated items are inadmissible in evidence. [Del Castillo v. People - G.R. No. 185128, January 30, 2012, Third Division, Peralta] Section 8, Rule 126 of the Rules of Court allows the absence of the lawful occupant provided that two witnesses are present. Section 8. Search of house, room, or premises to be made in presence of two witnesses. — No search of a house, room, or any other premises shall be made except in the presence of the lawful occupant thereof or any member of his family or in the absence of the latter, two witnesses of sufficient age and discretion residing in the same locality. The presence of the two barangay officials was not disputed by petitioner. xxx. Resultantly, the seized items cannot, therefore, be considered as "fruits of the poisonous tree." [Valleno v. People - G.R. No. 192050, January 9, 2013] Warrantless Arrests, Searches and Seizures - Rules of Court, Rule 113, Section 5 – a peace officer or even a private person may, without a warrant, arrest a person [1] when such person has in fact just committed, is actually committing, or is attempting to commit an offense in his presence; [2] when an offense has in fact just been committed and he has personal knowledge of facts indicating that the person to be arrested has committed it; or [3] when the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. [(1) arrest in flagrante delicto, (2) arrest effected in hot pursuit, and (3) arrest of escaped prisoners] An offense is committed in the presence or within the view of an officer, within the meaning of the rule authorizing an arrest without a warrant, when the officer sees the offense, although at a distance [in this case, two meters or 50 meters], or hears the disturbances created thereby and proceeds at once to the scene thereof. (U.S. v. Fortaleza, 12 Phil. 472 [1909]; and U.S. v. Samonte, 16 Phil. 516 [1910]) In essence, Section 5, par. (a), Rule 113, requires that the accused be caught in flagrante delicto or caught in the act of committing a crime. [People v. Sucro, G.R. No. 93239, March 18, 1991] Section 5, Rule 113 of the 1985 Rules on Criminal Procedure does not require the arresting officers to personally witness the commission of the offense with their own eyes. [Abelita III v. Doria, G.R. No. 170672, 14 August 2009, 596 SCRA 220, 226-227] It is sufficient for the arresting team that they were monitoring the pay-off for a number of hours long enough for them to be informed that it

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was indeed appellant, who was the kidnapper. This is equivalent to personal knowledge based on probable cause. [People v. Uyboco, G.R. No. 178039, January 19, 2011] Tipped information is sufficient probable cause to effect a warrantless search only in cases involving either a buy-bust operation or drugs in transit. [People v. Martinez, G.R. No. 191366, December 13, 2010] In a buy-bust operation, the violator in flagrante delicto and the police officers conducting the operation are not only authorized but duty-bound to apprehend the violator and to search him for anything that may have been part of or used in the commission of the crime. [People v. Macatingag, January 19, 2009, January 19, 2009] The absence of evidence of a prior surveillance does not affect the regularity of a buy-bust operation, especially when the buy-bust team members were accompanied to the scene by their informant. [People v. de la Rosa, G.R. No. 185166, January 26, 2011] A buy-bust operation is not invalidated by mere non-coordination with the PDEA. [People v. Abedin G.R. No. 179936, April 11, 2012; People v. Fundales - G.R. No. 184606, September 5, 2012] A POLICE OFFICER’S ACT OF SOLICITING DRUGS from appellant during the buy-bust operation, or what is known as the "decoy solicitation," is not prohibited by law and does not invalidate the buy-bust operation. [People v. Espiritu - G.R. No. 180919, January 9, 2013] The military arrested, without warrants, among others, [1] a suspected rebel, bedridden because of a bullet wound for subversion, which was considered by the military as a continuing offense [2] a sleeping man, who was hog-tied and bodily dumped into a police jeep for allegedly subversive remarks made by him the day before [another continuing offense] [3] a suspected murderer for a murder supposedly committed y him 14 days earlier. – Arrests held valid by the SC. [Umil v. Ramos, 18 SCRA 311] There must first be a lawful arrest before a warrantless search can be made - “the process cannot be reversed.” [People v, Chua Ho San, 308 SCRA 432] Nevertheless, a search substantially contemporaneous with an arrest can precede the arrest if the police have probable cause to make the arrest at the outset of the search. [People v. Racho, G.R. No. 186529, August 3, 2010] Section 80 of the Forestry Code authorizes the forestry officer to arrest, even without a warrant, any person who has committed or is committing in his presence any of the offenses defined by the Forestry Code and to seize and confiscate the tools and equipment used in committing the offense or the forest products gathered or taken by the offender. [Revaldo v. People - G.R. No. 170589, April 16, 2009] There was constructive possession of prohibited drugs even when the accused was not home when the prohibited drugs were found in the master’s bedroom of his house. [People v. Torres, G.R. No. 170837, September 12, 2006] The wife cannot feign ignorance of the drugs’ existence as she had full access to the room, including the space under the bed. [People v. Tira, G.R. No. 139615, May 28, 2004, 430 SCRA 134] The accused was in constructive possession of prohibited drugs which had been found in the drawer located in her bedroom. [Abuan v. People, G.R. No. 168773, October 27, 2006] There are xxx instances when a warrantless search and seizure is valid, to wit: (1) consented searches; (2) as an incident to a lawful arrest; (3) searches of vessels and aircraft for violation of immigration, customs, and drug laws; (4) searches of moving vehicles; (5) searches of automobiles at borders or constructive borders; (6) where the prohibited articles are in “plain view;” (7) searches of buildings and premises to enforce fire, sanitary, and building regulations; and (8) “stop and frisk” operations (Terry search). [People v. Lopez, G.R. No. 181747, September 26, 2008; see also Epie, Jr. v. Ulat-Marredo, G.R. No. 148117, March 22, 2007, 518 SCRA 641, 646.] ALSO customs searches and exigent and emergency circumstances. [People v. Gonzales, 417 Phil. 342, 357 (2001)] [People v. Dequina, G.R. No. 177570, January 19, 2011; see also People v. Racho, G.R. No. 186529, August 3, 2010 and Malacat v. CA, 283 SCRA 159] Warrantless searches and seizures at military checkpoints valid – justified on the basis of the right of the State to protect itself. Dissent: the bland declaration that individual rights must yield to the demands of national security ignores the fact that the Bill of Rights was intended precisely to limit the authority of the State even if asserted on the ground of national security. [Valmonte v. de Villa, 170 SCRA 256] Tipped information in buy-bust operations or cases involving drugs in transit. [People v. Martinez, G.R. No. 191366, December 13, 2010] Moving Vehicles - such a warrantless search has been held to be valid as long as the officers conducting the search have reasonable or probable cause to believe prior to the search that they would 12

find the instrumentality or evidence pertaining to a crime, in the vehicle to be searched. (A tip from an informant constitutes probable cause.) [People v. Tuazon, G.R. No. 175783, September 3, 2007] - Tip was given one week before the warrantless search of a vehicle. The Supreme Court said the warrantless search was valid. Teehankee dissented saying there was enough time to obtain a warrant. [People v. CFI of Rizal – Jesse Hope, 101 SCRA 86] - BICYCLE - Jurisprudence defines “transport” as “to carry or convey from one place to another.” In the instant case, appellant was riding his bicycle when he was caught by the police. He admitted that he was about to convey the package, which contained marijuana, to a certain Jimmy Gonzales. Warrantless arrest justified. [People v. Penaflorida, G.R. No. 175604, April 10, 2008] - The search in this case is valid. The vehicle that carried the contraband or prohibited drugs was about to leave. PO2 Pallayoc had to make a quick decision and act fast. It would be unreasonable to require him to procure a warrant before conducting the search under the circumstances. Time was of the essence in this case. The searching officer had no time to obtain a warrant. Indeed, he only had enough time to board the vehicle before the same left for its destination. [People v. Mariacos, G.R. No. 188611, June 6, 2010] In lawful arrests, it becomes both the duty and the right of the apprehending officers to conduct a warrantless search not only on the person of the suspect, but also in the permissible area within the latter's reach. Otherwise stated, a valid arrest allows the seizure of evidence or dangerous weapons either on the person of the one arrested or within the area of his immediate control. The phrase "within the area of his immediate control" means the area from within which he might gain possession of a weapon or destructible evidence. [Valeroso v. Court of Appeals, G.R. No. 164815, 3 September 2009, 598 SCRA 41, 55-56 citing People v. Cueno, 359 Phil. 151, 163 (1998); People v. Cubcubin, Jr., id. at 271; People v. Estella, 443 Phil. 669, 683 (2003)]Therefore, it is only but expected and legally so for the police to search his car as he was driving it when he was arrested. [People v. Uyboco, G.R. No. 178039, January 19, 2011] First, there was no valid arrest of petitioner. When he was flagged down for committing a traffic violation, he was not, ipso facto and solely for this reason, arrested. xxx Second, there being no valid arrest, the warrantless search that resulted from it was likewise illegal. xxx It must be noted that the evidence seized, although alleged to be inadvertently discovered, was not in “plain view.” It was actually concealed inside a metal container inside petitioner’s pocket. Clearly, the evidence was not immediately apparent. [See People v. Macalaba, 443 Phil. 565 (2003)] Neither was there a consented warrantless search. Consent to a search is not to be lightly inferred, but shown by clear and convincing evidence. [Caballes v. Court of Appeals, 424 Phil. 263 (2002)] xxx Neither does the search qualify under the “stop and frisk” rule. While the rule normally applies when a police officer observes suspicious or unusual conduct, which may lead him to believe that a criminal act may be afoot, the stop and frisk is merely a limited protective search of outer clothing for weapons. [People v. Sy Chua, 444 Phil. 757 (2003)] xxx The foregoing considered, petitioner must be acquitted. While he may have failed to object to the illegality of his arrest at the earliest opportunity, a waiver of an illegal warrantless arrest does not, however, mean a waiver of the inadmissibility of evidence seized during the illegal warrantless arrest. [People v. Lapitaje, 445 Phil. 729 (2003)] The subject items seized during the illegal arrest are inadmissible. [People v. Martinez, G.R. No. 191366, 13 December 2010] The drugs are the very corpus delicti of the crime of illegal possession of dangerous drugs. Thus, their inadmissibility precludes conviction and calls for the acquittal of the accused. [Id.] [Luz v. People - G. R. No. 197788, February 29, 2012, Second Division, Sereno] Belocura was caught in flagrante delicto violating Section 31 of Republic Act No. 4139 (The Land Transportation and Traffic Code – spurious government plate). In flagrante delicto means in the very act of committing the crime. To be caught in flagrante delicto necessarily implies the positive identification of the culprit by an eyewitness or eyewitnesses. Such identification is a direct evidence of culpability, because it "proves the fact in dispute without the aid of any inference or presumption." [Go v. Leyte II Electric Cooperative, Inc., G.R. No. 176909, February 18, 2008, 546 SCRA 187, 195] Chief Insp. Divina signaled for Belocura to stop for verification but the latter ignored the signal and sped off towards Balut, Tondo. The team pursued Belocura’s jeep until they blocked its path with their Tamaraw FX vehicle, forcing Belocura to stop. At this point, Chief Insp. Divina and the rest of the team approached the jeep and introduced themselves to Belocura as policemen. Chief Insp. Divina queried Belocura on the government plate. SPO1 Rojas confiscated Belocura’s Berreta 9 mm. pistol (Serial Number M13086Z) that was tucked in his waist and its fully loaded magazine when he could not produce the appropriate documents for the pistol and the government plate. They arrested him. Even by his own admission, he was actually committing a crime in the presence or within the view of the arresting policemen. Such manner by which Belocura was apprehended fell under the first category in Section 5, Rule 113 of the Rules of Court. The arrest was valid, therefore, and the arresting policemen thereby became cloaked with the authority to validly search his person and effects for weapons or any other article he might use in the commission of the crime or was the fruit of the crime or might be used as evidence in the trial of the 13

case, and to seize from him and the area within his reach or under his control, like the jeep, such weapon or other article. The evident purpose of the incidental search was to protect the arresting policemen from being harmed by him with the use of a concealed weapon. Accordingly, the warrantless character of the arrest could not by itself be the basis of his acquittal. [Valdez v. People, G.R. No. 170180, November 23, 2007, 538 SCRA 611] [NOTE – accused was ACQUITTED because of inadequate testimonial evidence – the arresting officer who seized the marijuana bricks was not presented to testify.][People v. Belocura G.R. No. 173474, August 29, 2012, First Division, Bersamin] Vessels and Aircraft - Searches and seizures without warrant of vessels and aircraft for violation of customs laws are valid. [Roldan v. Arca, 65 SCRA 336] The essential element of the charge is the movement of the dangerous drug from one place to another. In this case, appellant was apprehended inside the airport, as he was intending to board his flight bound for Davao City with a substantial amount or 196.63 grams of methylamphetamine hydrochloride or shabu in his possession, concealed in separate plastic bags inside his oversized Spice rubber shoes. While it may be argued that appellant was yet to board the aircraft or travel some distance with the illegal drugs in his possession, it cannot be denied that his presence at the airport at that particular instance was for the purpose of transporting or moving the dangerous drugs from one place to another. [People v. Laba – G.R. No. 199938, January 28, 2013] Plain View - The “plain view” doctrine applies when the following requisites concur: (a) the law enforcement officer in search of the evidence has a prior justification for an intrusion or is in a position from which he can view a particular area; (b) the discovery of the evidence in plain view is inadvertent; (c) it is immediately apparent to the officer that the item he observes may be evidence of a crime, contraband or otherwise subject to seizure. The law enforcement officer must lawfully make an initial intrusion or properly be in a position from which he can particularly view the area. In the course of such lawful intrusion, he came inadvertently across a piece of evidence incriminating the accused. The object must be open to eye and hand and its discovery inadvertent. [Revaldo v. People - G.R. No. 170589, April 16, 2009] - However, if the package proclaims its contents, whether by its distinctive configuration, its transparency, or if its contents are obvious to an observer, then the contents are in plain view and may be seized. In other words, if the package is such that an experienced observer could infer from its appearance that it contains the prohibited article, then the article is deemed in plain view. It must be immediately apparent to the police that the items that they observe may be evidence of a crime, contraband or otherwise subject to seizure. [People v. Doria, GR. 15299, January 22, 1999] The drum alleged to have contained the methamphetamine was placed in the open back of the van, hence, open to the eye and hand of the NBI agents. The liquid-filled drum was thus within the plain view of the NBI agents, hence, a product of a legal search. [People v. Lagman, G.R. No. 168695, December 8, 2008] Terry Search/Incident to a Lawful Arrest - Warrantless search even before arrest is valid when an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is presently dangerous to the officer or to others. [Terry v. Ohio, 392 US 1] In a legitimate warrantless arrest, the arresting police officers are authorized to search and seize from the offender (1) any dangerous weapons and (2) the things which may be used as proof of the commission of the offense. (People v. Ayangao, G.R. No. 142356, April 14, 2004, 427 SCRA 428, 433.) [People v. Bohol , G.R. No. 171729, July 28, 2008] Search [for concealed weapons and all unlawful articles] in the course of a valid arrest is valid. [Adams v. Williams, 47 US 143; see also People v. Figueroa, 248 SCRA 679 and People v. Salazar, 266 SCRA 607] In this case, the prosecution has satisfactorily established that airport security officers found in the person of petitioner the marijuana fruiting tops contained in rolled paper sticks during the final security check at the airport’s pre-departure area. Petitioner at first refused to show the contents of his short pants pocket to Soriano who became suspicious when his hand felt the "slightly bulging" item while frisking petitioner. In [People v. Johnson 401 Phil. 734 (2000)], which also involved seizure of a dangerous drug from a passenger during a routine frisk at the airport, this Court ruled that such evidence obtained in a warrantless search was acquired legitimately pursuant to airport security procedures xxx We find no irregularity in the search conducted on petitioner who was asked to empty the contents of his pockets upon the frisker’s reasonable belief that what he felt in his hand while frisking petitioner’s short pants was a prohibited or illegal substance. Such search was made pursuant to routine airport security procedure,

14

which is allowed under Section 9 of R.A. No. 6235. [Sales v. People - G.R. No. 191023, February 06, 2013] According to the Rules of Court, personal property may be seized in connection with a criminal offense either by authority of a search warrant or as the product of a search incidental to a lawful arrest. If the search is by virtue of a search warrant, the personal property that may be seized may be that which is the subject of the offense; or that which has been stolen or embezzled and other proceeds, or fruits of the offense; or that which has been used or intended to be used as the means of committing an offense. [Section 3, Rule 126, Rules of Court] If the search is an incident of a lawful arrest, seizure may be made of dangerous weapons or anything that may have been used or may constitute proof in the commission of an offense. [Section 13, Rule 126, Rules of Court] [Phillipine Drug Enforcement Agency v. Brodett G.R. No. 196390, September 28, 2011, First Division, Bersamin] The search of the contents of petitioner’s short pants pockets being a valid search pursuant to routine airport security procedure, the illegal substance (marijuana) seized from him was therefore admissible in evidence. Petitioner’s reluctance to show the contents of his short pants pocket after the frisker’s hand felt the rolled papers containing marijuana, and his nervous demeanor aroused the suspicion of the arresting officers that he was indeed carrying an item or material subject to confiscation by the said authorities. [Sales v. People - G.R. No. 191023, February 06, 2013, First Division, Villarama] Waiver - An arrest may be made without a warrant where the right thereto is waived by the person arrested, provided he knew of such right and knowingly decided not to invoke it. [People v. Tabar, 222 SCRA 144] - An accused cannot question her arrest for the first time on appeal. [People v. Marcelino, G.R. No. 189278, July 26, 2010] The accused is estopped from assailing the legality of his arrest if he fails to raise such issue before arraignment. However, this waiver is limited only to the arrest. The legality of an arrest affects only the jurisdiction of the court over the person of the accused. A waiver of an illegal warrantless arrest does not carry with it a waiver of the inadmissibility of evidence seized during the illegal warrantless arrest. [People v. Martinez, G.R. No. 191366, December 13, 2010] Rules of Court, Rule 114, Section 26 – posting of bail will not result in waiver of right to question lawfulness of the arrest. What constitutes a reasonable or unreasonable warrantless search or seizure is purely a judicial question, determinable from the uniqueness of the circumstances involved, including the purpose of the search or seizure, the presence or absence of probable cause, the manner in which the search and seizure was made, the place or thing searched, and the character of the articles procured. [People v. Nuevas, G.R. No. 170233, February 22, 2007, 516 SCRA 463, 476, cited in Sy. V. People - G.R. No. 182178, August 15, 2011, Third Division, Peralta] Furthermore, this Court has consistently ruled that even if the arresting officers failed to take a photograph of the seized drugs as required under Section 21 of R.A. No. 9165, such procedural lapse is not fatal and will not render the items seized inadmissible in evidence. [People v. Octavio - G.R. No. 199219, April 3, 2013, Second Division, Perez] The Right to Privacy Zones of Privacy - Constitution – Bill of Rights – Section 1 -due process, equal protection, Section 2 -searches and seizures, Section 6 - liberty of abode; Section 8 - freedom of association and Section 17 right against self-incrimination - Civil Code – Art. 26 – every person shall respect the dignity, privacy and peace of mind of his neighbors and punishes as actionable torts several acts by a person of meddling and prying into the privacy of another. - Art. 32 – holds a public officer or employee or any private individual liable for damages for any violation of the rights and liberties of another person - Art. 723 – recognizes the privacy of letters and other private communications. - Revised Penal Code – Art. 229 – makes a crime the violation of secrets by an officer - Art. 280 – trespass to dwelling - Art. 290-292 – the revelation of trade and industrial secrets - Special Laws – RA 4200 Anti-Wiretapping Law - RA 1405 – Secrecy of Bank Deposits Act - RA 8293 – Intellectual Property Code - Rules of Court – Rule 130, Sec. 24 – privileged communication This statutory right to privacy will not prevent the courts from authorizing an inquiry upon the fulfillment of the requirements set forth under Section 11 of the AMLA [in instances where there is probable cause that the deposits or investments are related to kidnapping for ransom, certain violations of the Comprehensive Dangerous Drugs Act of 2002, hijacking and other violations under R.A. No. 6235, 15

destructive arson and murder] [Republic of the Philippines v. Eugenio, G.R. No. 174629, February 14, 2008] The provisions of RA 9165 requiring mandatory, random, and suspicionless drug testing of students are constitutional. Indeed, it is within the prerogative of educational institutions to require, as a condition for admission, compliance with reasonable school rules and regulations and policies. Employees have a reduced expectation of privacy. With respect to persons charged before the public prosecutor’s office with criminal offenses punishable with six (6) years and one (1) day imprisonment, a mandatory drug testing can never be random or suspicionless. To impose mandatory drug testing on the accused is a blatant attempt to harness a medical test as a tool for criminal prosecution, contrary to the stated objectives of RA 9165. Drug testing in this case would violate a persons’ right to privacy guaranteed under Sec. 2, Art. III of the Constitution. Worse still, the accused persons are veritably forced to incriminate themselves. [Social Justice Society v. Dangerous Drugs Board – G.R. No. 157870, November 3, 2008] Section 36 of R.A. No. 9165 provides that drug tests shall be performed only by authorized drug testing centers. [Nacague v. Sulpicio Lines, G.R. No. 172589, August 8, 2010] Petitioner’s claim of violation of his constitutional right to privacy must necessarily fail. His other argument invoking the privacy of communication and correspondence under Section 3(1), Article III of the 1987 Constitution is also untenable considering the recognition accorded to certain legitimate intrusions into the privacy of employees in the government workplace under the aforecited authorities. xxx. As already mentioned, the search of petitioner’s computer was justified there being reasonable ground for suspecting that the files stored therein would yield incriminating evidence relevant to the investigation being conducted by CSC as government employer of such misconduct subject of the anonymous complaint. This situation clearly falls under the exception to the warrantless requirement in administrative searches defined in O’Connor. [Pollo v. Chairperson Karina Constantino-David - G.R. No. 181881, October 18, 2011, En Banc, Villarama] Compelling the respondents to construct their fence in accordance with the assailed ordinance is, thus, a clear encroachment on their right to property, which necessarily includes their right to decide how best to protect their property. It also appears that requiring the exposure of their property via a see-thru fence is violative of their right to privacy, considering that the residence of the Benedictine nuns is also located within the property. The right to privacy has long been considered a fundamental right guaranteed by the Constitution that must be protected from intrusion or constraint. The right to privacy is essentially the right to be let alone [Gamboa v. Chan, G.R. No. 193636, July 24, 2012, 677 SCRA 385, 396, citing Morfe v. Mutuc, 130 Phil. 415 (1968)], as governmental powers should stop short of certain intrusions into the personal life of its citizens. [White Light Corporation v. City of Manila, G.R. No. 122846, January 20, 2009, 576 SCRA 416, at 441, citing City of Manila v. Laguio, 495 Phil. 289 (2005)] It is inherent in the concept of liberty, enshrined in the Bill of Rights (Article III) in Sections 1, 2, 3(1), 6, 8, and 17, Article III of the 1987 Constitution. [Gamboa v. Chan, G.R. No. 193636, July 24, 2012, 677 SCRA 385, at 397398, citing Ople v. Torres, 354 Phil. 948 (1998)] [Fernando v. St. Scholastica’s College - G.R. No. 161107, March 12, 2013, En Banc, Mendoza] Therefore, when the right to privacy finds tension with a competing state objective, the courts are required to weigh both notions. In these cases, although considered a fundamental right, the right to privacy may nevertheless succumb to an opposing or overriding state interest deemed legitimate and compelling. [Gamboa v. Chan - G.R. No. 193636, July 24, 2012] With respect to the right of privacy which petitioners claim respondent has violated [with the collection and forwarding of information by the PNP vis-à-vis the interest of the state to dismantle private armies ], suffice it to state that privacy is not an absolute right. While it is true that Section 21, Article VI of the Constitution, guarantees respect for the rights of persons affected by the legislative investigation, not every invocation of the right to privacy should be allowed to thwart a legitimate congressional inquiry. In Sabio v. Gordon, we have held that the right of the people to access information on matters of public concern generally prevails over the right to privacy of ordinary financial transactions. In that case, we declared that the right to privacy is not absolute where there is an overriding compelling state interest. Employing the rational basis relationship test, as laid down in Morfe v. Mutuc, there is no infringement of the individual’s right to privacy as the requirement to disclosure information is for a valid purpose, in this case, to ensure that the government agencies involved in regulating banking transactions adequately protect the public who invest in foreign securities. Suffice it to state that this purpose constitutes a reason compelling enough to proceed with the assailed legislative investigation. [Gamboa v. Chan - G.R. No. 193636, July 24, 2012]

16

Compelling the respondents to construct their fence in accordance with the assailed ordinance is, thus, a clear encroachment on their right to property, which necessarily includes their right to decide how best to protect their property. It also appears that requiring the exposure of their property via a see-thru fence is violative of their right to privacy, considering that the residence of the Benedictine nuns is also located within the property. The right to privacy has long been considered a fundamental right guaranteed by the Constitution that must be protected from intrusion or constraint. The right to privacy is essentially the right to be let alone [Gamboa v. Chan, G.R. No. 193636, July 24, 2012, 677 SCRA 385, 396, citing Morfe v. Mutuc, 130 Phil. 415 (1968)], as governmental powers should stop short of certain intrusions into the personal life of its citizens. [White Light Corporation v. City of Manila, G.R. No. 122846, January 20, 2009, 576 SCRA 416, at 441, citing City of Manila v. Laguio, 495 Phil. 289 (2005)] It is inherent in the concept of liberty, enshrined in the Bill of Rights (Article III) in Sections 1, 2, 3(1), 6, 8, and 17, Article III of the 1987 Constitution. [Gamboa v. Chan, G.R. No. 193636, July 24, 2012, 677 SCRA 385, at 397398, citing Ople v. Torres, 354 Phil. 948 (1998)] [Fernando v. St. Scholastica’s College - G.R. No. 161107, March 12, 2013, En Banc, Mendoza] Article III, Section 3 (2) - Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding. - The so-called Exclusionary Rule teaches that evidence illegally obtained shall be inadmissible in evidence in any proceeding. Freedom of Expression Freedom from Censorship - A radio station was denied a permit to operate pursuant to a new ordinance converting its location into a commercial area. It was, however, shown that said ordinance was passed to suppress said station’s criticisms against the local government. Jurisprudence distinguishes between a content-neutral regulation, i.e., merely concerned with the incidents of the speech, or one that merely controls the time, place or manner, and under well defined standards; and a content-based restraint or censorship, i.e., the restriction is based on the subject matter of the utterance or speech. Content-based laws are generally treated as more suspect than content-neutral laws because of judicial concern with discrimination in the regulation of expression. Content-neutral regulations of speech or of conduct that may amount to speech, are subject to lesser but still heightened scrutiny. Ordinance held as content-based restraint. INVALID. [New Sounds Broadcasting Network, Inc. v. Dy, G.R. Nos. 170270 & 179411, April 2, 2009] Minnesota shut down a paper for being a “public nuisance.” US SC: Even “miscreant purveyors of scandal,” such as Jay M. Near’s blatantly anti-Semitic Saturday Press, are protected from prior restraint. Thus, a law which provides for the suppression of any periodical found, after hearing, on the basis of its past issues, to be obscene, is INVALID. [Near v. Minnesota, 283 US 697 (1931)] US SC upheld a law which authorized the suppression of any issue of any periodical if and as such issue was found to be objectionable after judicial hearing, but without affecting the right of the periodical to continue publication. The statute was aimed against issues already published, not against future issues. [Kingsley Books v. Brown, 354 US 436] - No political campaigns allowed except during the election period. [Gonzales v. COMELEC, 27 SCRA 835] Freedom from Punishment - Freedom of expression does not cover ideas offensive to public order or decency or the reputation of persons, which are all entitled to protection by the State. Thus, the lewd word, the obscene word, the seditious word, the slanderous word, cannot be considered a “step to the truth” and therefore will not enjoy immunity from prohibition and punishment. [Thornhill v. Alabama, 310 US 88] The Clear and Present Danger Rule - Justice Fernando – the term clear seems to point to a causal connection with the danger of the substantive evil arising from the utterance questioned. Present refers to the time element. It used to be identified with imminent and immediate danger. The danger must not only be probable but very likely inevitable. [Gonzales v. COMELEC, 27 SCRA 835] The clear and present danger rule is founded on the same principles as Content-based Restraint. [Chavez v. Gonzales, G.R. No. 168338, February 15, 2008] A 13-year old girl showed up in class with a black arm band to protest US policy in Vietnam and was suspended. Suspension set aside by the US SC - “It can hardly be argued that either students or teachers shed their constitutional rights …at the schoolhouse gate.” [Tinker v. Des Moines Independent School District (1969), adopted in Malabanan v. Ramento, 129 SCRA 359 - Students barred from reenrollment because they had participated in demonstrations. Malabanan affirmed, although some students were not accepted for re-enrollment, not for participating in a rally but because of academic deficiencies. [Villar v. Technological Institute of the Philippines, 135 SCRA 706; see also Non v. Dames, 185 SCRA 523]] 17

A private individual may be the subject of public comment even if he is not a public official or at least a public figure, as long as he is involved in a public issue. – the public’s primary interest is in the event. [Rosenbloom v. Metromedia, 403 US 29] Newspaper publications tending to impede, obstruct, embarrass or influence the courts in administering justice in a pending suit or proceeding constitutes criminal contempt which is summarily punishable by the courts. This rule is otherwise after the case is ended. [People v. Alarcon, 69 Phil. 265] Accused delivered inside an auditorium before less than a thousand persons a speech attacking various political and racial groups while an angry crowd of about one thousand gathered outside to protest the meeting and a number of disturbances occurred, created by the people outside not by the defendant. Convicted under an ordinance punishing “any improper noise, riot, disturbance, breach of the peace, or diversion tending to the breach of the peace.” Conviction annulled. – a function of free speech is to provide dispute. [Terminiello v. City of Chicago, 337 US 1] BUT in Feiner v. New York, [340 US 315], the US Supreme Court upheld a statute forbidding speaking on public streets “with intent to provoke a breach of peace. It found the accused to be guilty of a “genuine attempt to arouse the Negro people against the whites.” Chief Justice Charles Evans writes for a unanimous Court to overturn the conviction of a Communist, who had been arrested at a meeting to protest the police shooting of striking longshoremen. “Peaceable assembly for lawful discussion cannot be made a crime.” [US v. Dirk De Jonge (1937)] [Note - A heckler's veto occurs when an acting party's right to freedom of speech is curtailed or restricted by the government in order to prevent a reacting party's behavior. The common example is that of demonstrators (reacting party) causing a speech (given by the acting party) to be terminated in order to preserve the peace. The best known case involving the heckler's veto is probably Feiner v. New York [340 U.S. 315], handed down by the Supreme Court in 1951. Chief Justice Fred M. Vinson, writing for the majority, held that police officers acted within their power in arresting a speaker if the arrest was "motivated solely by a proper concern for the preservation of order and protection of the general welfare." In Gregory v. Chicago [394 US 111], Justice Hugo Black, in a concurring opinion, argued that arresting demonstrators as a consequence of unruly behavior of by-standers would amount to a heckler's veto. It was rejected in Hill v. Colorado [530 US 703], where the Supreme Court rejected the "Heckler's Veto," finding "governmental grants of power to private actors" to be "constitutionally problematic" in cases where "the regulations allowed a single, private actor to unilaterally silence a speaker"] Tests of obscenity – [1] whether the average person, applying contemporary community standards, would find the work, taken as a whole, appeals to the prurient interest; [2] whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable law; [3] whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value. [Miller v. California, 37 L. ed. 419] - Obscene magazines cannot be summarily confiscated; a warrant must be issued. [Pita v. CA, 178 SCRA 362] - Where a language is categorized as indecent, as in petitioner’s utterances on a general-patronage rated TV program, it may be readily proscribed as unprotected speech. [Soriano v. Laguardia, G.R. No. 164785, April 29, 2009] Unprotected speech or low-value expression, refers to libelous statements, obscenity or pornography, false or misleading advertisement, insulting or “fighting words”, i.e., those which by their very utterance inflict injury or tend to incite an immediate breach of peace and expression endangering national security. The Court finds that petitioner’s statement can be treated as obscene, at least with respect to the average child. Even if we concede that petitioner’s remarks are not obscene but merely indecent speech, still the Court rules that petitioner cannot avail himself of the constitutional protection of free speech. Said statements were made in a medium easily accessible to children. With respect to the young minds, said utterances are to be treated as unprotected speech. [Soriano v. Laguardia, G.R. No. 164785, April 29, 2009] Freedom of Assembly - The use of public places for public meetings or rallies can only be reasonably regulated, and not absolutely prohibited. Clear and present danger rule applied. [Primicias v. Fugoso, 80 Phil. 71; Reyes v. Bagatsing, 125 SCRA 553] BP Blg. 880 - The Public Assembly Act of 1985 - A written permit shall be required for a public assembly in a public place. However, no permit shall be required if the public assembly shall be done in a freedom park duly established by law or ordinance [centrally located within the poblacion – Section 15] or in private property, in which case only the consent of the owner or the one entitled to its legal possession is required, or in the campus of a government-owned and operated educational institution which shall be subject to the rules and regulations of said educational institution. Political meetings or rallies held during any election campaign period as provided for by law are not 18

covered by this Act. [Section 4] The mayor or any official acting in his behalf shall act on the application within two (2) working days from the date the application was filed, failing which, the permit shall be deemed granted. B.P. No. 880 is a “content-neutral” regulation of the time, place, and manner of holding public assemblies. Neither is the law overbroad. It regulates the exercise of the right to peaceful assembly and petition only to the extent needed to avoid a clear and present danger of the substantive evils Congress has the right to prevent. There is, likewise, no prior restraint, since the content of the speech is not relevant to the regulation. The so-called calibrated preemptive response policy has no place in our legal firmament and must be struck down as a darkness that shrouds freedom. The delegation to the mayors of the power to issue rally “permits” is valid because it is subject to the constitutionally-sound “clear and present danger” standard. [Bayan v. Ermita, 488 SCRA 226] TESTS - Purpose Test - The test of a lawful assembly should be the purposes for which it is held, regardless of the auspices under which it is organized. “Peaceable assembly for lawful discussion cannot be made a crime.” In this case, the conviction of a Communist, who had been arrested at a meeting to protest the police shooting of striking longshoremen, was reversed by the US Supreme Court. [De Jonge v. Oregon, 229 US 353 (1937)] Auspices Test applied – a rally of the Communist Party of the Philippines was prohibited, because a fiscal had determined the CPP to be an illegal association. [Evangelista v. Earnshaw, 57 Phil. 255] – not yet formally abrogated in this jurisdiction. Respondent was holding the position of Social Insurance Specialist of the Claims Department of Government Service Insurance System (GSIS) when she was administratively charged with Grave Misconduct and/or Conduct Prejudicial to the Best Interest of the Service for the following acts: 1. Wearing red shirt and marching to or appearing at the office of the Investigation Unit in protest and to support Atty. Mario Molina (Atty. Molina) and Atty. Albert Velasco (Atty. Velasco); 2. Conspiring with other employees and temporarily leaving her workplace, and abandoning her post and duties; 3. Badmouthing the security guards and the GSIS management and defiantly raising clenched fists; and 4. Causing alarm, frightening some employees, and disrupting the work at the Investigation Unit during office hours. In this case, CSC found that the acts of respondents in going to the GSIS-IU office wearing red shirts to witness a public hearing do not amount to a concerted activity or mass action proscribed above. CSC even added that their actuations can be deemed an exercise of their constitutional right to freedom of expression. The CA found no cogent reason to deviate therefrom. Government workers, whatever their ranks, have as much right as any person in the land to voice out their protests against what they believe to be a violation of their rights and interests. Civil Service does not deprive them of their freedom of expression. It would be unfair to hold that by joining the government service, the members thereof have renounced or waived this basic liberty. This freedom can be reasonably regulated only but can never be taken away. In the recent case of GSIS v. Kapisanan ng mga Manggagawa sa GSIS [GSIS, G.R. No. 170132, December 6, 2006, 510 SCRA 622], the Court upheld the position of petitioner GSIS because its employees, numbering between 300 and 800 each day, staged a walkout and participated in a mass protest or demonstration outside the GSIS for four straight days. We cannot say the same for the 20 or so employees in this case. To equate their wearing of red shirts and going to the GSIS-IU office for just over an hour with that four-day mass action in Kapisanan ng mga Manggagawa sa GSIS case and to punish them in the same manner would most certainly be unfair and unjust. Recent analogous decisions in the United States, while recognizing the government's right as an employer to lay down certain standards of conduct, tend to lean towards a broad definition of "public concern speech" which is protected by their First Amendment. One such case is that of Scott v. Meters. [191 F.3d 82 (2d Cir. 1999)] In said case, the New York Transit Authority (NYTA), responsible for operation of New York City's mass transit service, issued a rule prohibiting employees from wearing badges or buttons on their uniforms. A number of union members wore union buttons promoting their opposition to a collective bargaining agreement. Consequently, the NYTA tried to enforce its rule and threatened to subject these union members to discipline. The court, though recognizing the government's right to impose reasonable restrictions, held that the NYTA's rule was "unconstitutionally overboard." Thus, respondents' freedom of speech and of expression remains intact, and CSC's Resolution No. 021316 defining what a prohibited concerted activity or mass action has only tempered or regulated these rights. Measured against that definition, respondents' actuations did not amount to a prohibited concerted 19

activity or mass action. The CSC and the CA were both correct in arriving at said conclusion. [GSIS v. Villaviza - G.R. No. 180291, July 27, 2010] In said November 15, 2010 Decision, this Court ruled that complainants’ concerted mass action was actually a strike and not a legitimate exercise of their right to freedom of expression; that complainants violated the January 18, 2000 Order of Secretary Laguesma; that the union officers’ dismissal was valid; and that petitioners therein failed to present proof that the union members participated in the commission of an illegal act during the said strike; hence, their dismissal was unjustified. [Solid Bank Union v. Metropolitan Bank and Trust Company - G.R. No. 153799, September 17, 2012, Second Division, del Castillo] Freedom of Religion Related Provisions in the Constitution - Preamble/Article II, Sec. 6/establishment clause [Article III, Section 5] – Article VI, Section 29(2) - state cannot set up a church [Everson v. Board of Education, 330 US 1]; no part of the business of government to compose official prayers [Engel v. Vitale, 370 US 421]; state may not require reading of bible verses [District of Abington Township v. Schempp, 374 US 203]; may not provide for the distribution of bibles through public teachers using government time [Tudor v. Board of Education, 14 NJ 31]; BUT may allow religious instruction on released-time arrangement (with obligation to make up for lost time) [Zorach v. Clauson, 343 US 306] – Article XIV, Section 3 (3), on optional religious instruction; or lend textbooks to both public and parochial schools (ownership of the books remains with the state) [Board of Education v. Allen, 392 US 236]; and even provide transportation to students of both public and parochial schools [Everson v. Board of Education, 330 US 1; “Declaration of Pledging Faithfulness” - benevolent neutrality approach - gives room for accommodation of religious exercises as required by the Free Exercise Clause - benevolent neutrality could allow for accommodation of morality based on religion, provided it does not offend compelling state interests - the state has used the least intrusive means possible so that the free exercise is not infringed any more than necessary to achieve the legitimate goal of the state, i.e., it has chosen a way to achieve its legitimate state end that imposes as little as possible on religious liberties. Escritor’s conjugal arrangement cannot be penalized as she has made out a case for exemption from the law based on her fundamental right to freedom of religion. [Estrada v. Escritor, A.M. No. P-02-1651, June 22, 2006; see also Estrada v. Escritor, A.M. No. P-02-1651, August 4, 2003]. SEE ALSO Article XV, Section 3[1] – The State shall defend the right of spouses to found a family in accordance with their religious convictions and the demands of responsible parenthood. - “For a Christian nation like ours, such bestial act should never be tolerated.” [People v. Bosi - G.R. No. 193665, June 25, 2012, Second Division, Reyes] The establishment clause does not inhibit the use of public property for religious purposes when the religious character of such use is merely incidental to a temporary use which is available indiscriminately to the public in general, as in religious processions along public streets. [People v. Fernandez, CA G. R. No. L-1128 (1945)] Nothing objectionable with respect to the use of private contributions for the purchase of a religious image. [Garces v. Estenzo, 104 SCRA 510] Religious Profession and Worship - Religious profession and worship has a twofold aspect – freedom to believe and freedom to act on one’s beliefs. The first is absolute as long as the belief is confined within the realm of thought. The second is subject to religion where the belief is translated into external acts that affect the public welfare. [Cantwell v. Connecticut, 310 US 296] No license needed to sell Bibles because to subject said activity to a license fee would be to impair the free exercise of religious profession and worship, which includes the right to disseminate religious beliefs [American Bible Society v. City of Manila, 101 Phil. 386] BUT a P1,000 VAT registration fee would not constitute an impairment of religious freedom, because said registration fee is a mere administrative fee, not one imposed on the exercise of a privilege, much less a constitutional right. [Tolentino v. Secretary of Finance, 235 SCRA 630] Ebralinag v. Division Superintendent of Schools of Cebu [219 SCRA 256 (1993)] upheld the religious freedom of Jehovah’s Witnesses and ruled that they could, if they so wished, refuse to salute the Philippine flag because of their religious belief that it is an “image.” Religious Tests - A conscientious objector who refused, on religious grounds, to take an oath which contained a provision requiring service in the militia in times of war was considered morally unfit to practice law. [In re Summers, 325 US 561] A conscientious objector may not refuse, by reason of his religious beliefs, to render personal military or civil service, as required under Article II, Section 4 of the Constitution. [People v. Zosa, 38 OG 1676] Liberty of Abode 20

A housemaid may transfer residence even if she had not yet paid the amount advanced by an employment agency. [Caunca v. Salazar, 82 Phil.851] To require non-Christian tribes to reside in a reservation, for their better education, advancement and protection, would be a valid exercise of the police power. [Rubi v. Provincial Board of Mindoro, 50 Phil. 595] A mayor deports women of ill-repute to Davao. There is no showing that he was authorized to do so under any law. “Ours is a government of laws, and not of men.” [Villavicencio v. Lukban, 39SCRA 778] The Supreme Court has sustained an administrative regulation, enacted pursuant to legislative authority, temporarily suspending the deployment of Filipina domestics abroad on the ground of public safety. [Phil. Association of Service Exporters v. Drilon, 163 SCRA 386] National security invoked for limiting a person’s right to return to the country. [Marcos v. Manglapus, 177 SCRA 669] While the right to travel is a constitutional right that may be impaired only “in the interest of national security, public safety or public health, as may be provided by law,” there are recognized exceptions other than those created by law. Foremost is the restriction on the right to travel of persons charged of crimes before the courts. Another is the restriction on persons subpoenaed or ordered arrested by the Senate or House of Representatives pursuant to their power of legislative inquiry. There are also restrictions on the right to travel imposed on government officials and employees. For example, Office of the Court Administrator Circular No. 49-2003(B) requires judges and court personnel “to secure a travel authority from the Office of the Court Administrator” before they can travel abroad even during their approved leave of absence or free time. This restriction to travel abroad is imposed even in the absence of a law. In the present case, petitioners are already undergoing preliminary investigation in several criminal cases, and charges may be filed before the courts while petitioners are abroad. In fairness to the Government which is tasked with the prosecution of crimes, this Court must hear first the Government in oral argument before deciding on the temporary restraining order which if issued could frustrate the Government’s right to prosecute. The Government must be heard on how the charges against petitioners could proceed while petitioners are abroad. [Arroyo v. De Lima - G.R. No. 199034, November 15, 2011, En Banc, Carpio, Dissenting Opinion] It has been argued that OCA Circular No. 49-2003 (B) on vacation leave to be spent abroad unduly restricts a citizen’s right to travel guaranteed by Section 6, Article III of the 1987 Constitution. Let there be no doubt that the Court recognizes a citizen’s constitutional right to travel. It is, however, not the issue in this case. The only issue in this case is the non-compliance with the Court’s rules and regulations. It should be noted that respondent, in her Comment, did not raise any constitutional concerns. In fact, she was apologetic and openly admitted that she went abroad without the required travel authority. Hence, this is not the proper vehicle to thresh out issues on one’s constitutional right to travel. Nonetheless, granting that it is an issue, the exercise of one’s right to travel or the freedom to move from one place to another, [Mirasol v. Department of Public Works and Highways, G.R. No. 158793, June 8, 2006, 490 SCRA 318, 353] as assured by the Constitution, is not absolute. There are constitutional, statutory and inherent limitations regulating the right to travel. Section 6 itself provides that “neither shall the right to travel be impaired except in the interest of national security, public safety or public health, as may be provided by law.” Some of these statutory limitations are the following: 1] The Human Security Act of 2010 or Republic Act (R.A.) No. 9372. The law restricts the right to travel of an individual charged with the crime of terrorism even though such person is out on bail. 2] The Philippine Passport Act of 1996 or R.A. No. 8239. Pursuant to said law, the Secretary of Foreign Affairs or his authorized consular officer may refuse the issuance of, restrict the use of, or withdraw, a passport of a Filipino citizen. 3] The “Anti- Trafficking in Persons Act of 2003” or R.A. No. 9208. Pursuant to the provisions thereof, the Bureau of Immigration, in order to manage migration and curb trafficking in persons, issued Memorandum Order Radjr No. 2011-011, allowing its Travel Control and Enforcement Unit to “offload passengers with fraudulent travel documents, doubtful purpose of travel, including possible victims of human trafficking” from our ports. 4] The Migrant Workers and Overseas Filipinos Act of 1995 or R. A. No. 8042, as amended by R.A. No. 10022. In enforcement of said law, the Philippine Overseas Employment Administration (POEA) may refuse to issue deployment permit to a specific country that effectively prevents our migrant workers to enter such country. 5] The Act on Violence against Women and Children or R.A. No. 9262. The law restricts movement of an individual against whom the protection order is intended. 6] Inter-Country Adoption Act of 1995 or R.A. No. 8043. Pursuant thereto, the InterCountry Adoption Board may issue rules restrictive of an adoptee’s right to travel “to protect the Filipino child from abuse, exploitation, trafficking and/or sale or any other 21

practice in connection with adoption which is harmful, detrimental, or prejudicial to the child.” Inherent limitations on the right to travel are those that naturally emanate from the source. These are very basic and are built-in with the power. An example of such inherent limitation is the power of the trial courts to prohibit persons charged with a crime to leave the country. [Silverio v. Court of Appeals, G.R. No. 94284, April 8, 1991, 195 SCRA 760, 765] In such a case, permission of the court is necessary. Another is the inherent power of the legislative department to conduct a congressional inquiry in aid of legislation. In the exercise of legislative inquiry, Congress has the power to issue a subpoena and subpoena duces tecum to a witness in any part of the country, signed by the chairperson or acting chairperson and the Speaker or acting Speaker of the House; [House Rules and Procedure Governing Inquiries in Aid of Legislation, adopted on August 28, 2001, Section 7] or in the case of the Senate, signed by its Chairman or in his absence by the Acting Chairman, and approved by the Senate President. [Senate Rules of Procedure Governing Inquiries in Aid of Legislation, adopted on August 21, 1995, Section 17] xxx. As earlier stated, with respect to members and employees of the Judiciary, the Court issued OCA Circular No. 49-2003 to regulate their foreign travel in an unofficial capacity. Such regulation is necessary for the orderly administration of justice. If judges and court personnel can go on leave and travel abroad at will and without restrictions or regulations, there could be a disruption in the administration of justice. A situation where the employees go on mass leave and travel together, despite the fact that their invaluable services are urgently needed, could possibly arise. For said reason, members and employees of the Judiciary cannot just invoke and demand their right to travel. [Leave Division v. Heusdens - A.M. No. P-11-2927, December 13, 2011, En Banc, Mendoza] The Right to Information There are clear distinctions between the right of Congress to information which underlies the power of inquiry and the right of the people to information on matters of public concern. For one, the demand of a citizen for the production of documents pursuant to his right to information does not have the same obligatory force as a subpoena duces tecum issued by Congress. Neither does the right to information grant a citizen the power to exact testimony from government officials. These powers belong only to Congress and not to an individual citizen. [Senate v. Ermita, G.R. No. 169777, April 20, 2006] The right of Congress or any of its Committees to obtain information in aid of legislation cannot be equated with the people’s right to public information. The former cannot claim that every legislative inquiry is an exercise of the people’s right to information. [Neri v. Senate Committee on Accountability of Public Officers, G.R. No. 180643, March 25, 2008] The COMELEC may be compelled to disclose or publish the names of the nominees of the various party-list groups named in the petitions. [Bantay Republic Act v. COMELEC, G.R. No. 177271, May 4, 2007] Splendid Symmetry- The right of access to public documents, has been recognized as a self-executory constitutional right. The policy of full public disclosure enunciated in above-quoted Section 28 complements the right of access to information on matters of public concern found in the Bill of Rights. The right to information guarantees the right of the people to demand information, while Section 28 recognizes the duty of officialdom to give information even if nobody demands. [The Province of North Cotabato v. The Government of the Republic of the Philippines Peace Panel on Ancestral Domain, GR No. 183591, October 14, 2008] While national board examinations, such as the CPA Board Exams are matters of public concern, there may be valid reasons to limit access to the Examination Papers in order to properly administer the exam. [Antolin v. Domondon, GR No. 165036, July 5, 2010] Jurisprudence [Chavez v. PCGG, 360 Phil. 133, 160-162 (1998)] has provided the following limitations to that right: (1) national security matters and intelligence information; (2) trade secrets and banking transactions; (3) criminal matters; and (4) other confidential information such as confidential or classified information officially known to public officers and employees by reason of their office and not made available to the public as well as diplomatic correspondence, closed door Cabinet meetings and executive sessions of either house of Congress, and the internal deliberations of the Supreme Court. This could only mean that while no prohibition could stand against access to official records, such as the SALN, the same is undoubtedly subject to regulation. [RE: REQUEST FOR COPY OF 2008 STATEMENT OF ASSETS, LIABILITIES AND NETWORTH [SALN] AND PERSONAL DATA SHEET OR CURRICULUM VITAE OF THE JUSTICES OF THE SUPREME COURT AND OFFICERS AND EMPLOYEES OF THE JUDICIARY - A.M. No. 09-8-6-SC, June 13, 2012, En Banc, Mendoza] Here, petitioners’ second letter dated May 14, 2010 specifically requested for [sic] detailed information regarding the winning bidder, such as company profile, contact person or responsible officer, office address and Philippine registration. But before PSALM could respond to the said letter, petitioners filed 22

the present suit on May 19, 2010. PSALM’s letter-reply dated May 21, 2010 advised petitioners that their letter-re quest was referred to the counsel of K-Water. We find such action insufficient compliance with the constitutional requirement and inconsistent with the policy under EPIRA to implement the privatization of NPC assets in an "open and transparent" manner. PSALM’s evasive response to the request for information was unjustified because all bidders were required to deliver documents such as company profile, names of authorized officers/representatives, financial and technical experience. Consequently, this relief must be granted to petitioners by directing PSALM to allow petitioners access to the papers and documents relating to the company profile and legal capacity of the winning bidder. [Initiatives for Dialogue and Empowerment through Alternative Legal Services, Inc. v. Power Sector Assets and Liabilities Management Corporation - G.R. No. 192088, October 9, 2012, En Banc, Villarama] The Right of Association RELATE TO ART. XIII, Sec. 15 - The State shall respect the role of independent people's organizations to enable the people to pursue and protect, within the democratic framework, their legitimate and collective interests and aspirations through peaceful and lawful means. People's organizations are bona fide associations of citizens with demonstrated capacity to promote the public interest and with identifiable leadership, membership, and structure. Members of the civil service may not declare a strike to enforce their economic demands. [Alliance of Government Workers v. Ministry of Labor and Employment, 124 SCRA 1] The Anti-Subversion Act, which outlawed the Communist Party of the Philippines, was held not violative of the right of association on the ground that the government has a right to protect itself against subversion. [People v. Ferrer, 48 SCRA 382] A law providing that closed-shop agreements in CBAs should not include members of religious sects which prohibit them from joining labor unions is valid. Right to associate includes the right not to associate on the basis of religious beliefs. [Victoriano v. Elizalde Rope Workers’ Union, 59 SCRA 54] Article III, Section 10. No law impairing the obligation of contracts shall be passed. Contract – civil law concept – any lawful agreement on property or property rights, whether real or personal, tangible or intangible. Includes franchises or charters granted to persons or entities, like an authorization to build a public utility [Dartmouth College v. Woodward, 4 Wheat. 518]; does not cover licenses [Pedro v. Provincial Board of Rizal, 53 Phil. 123; Tan v. Director of Forestry, 125 SCRA 302 – a license is merely a permit or privilege to do what otherwise would be unlawful and is not a contract with the government] NOTE Article XII, Section 11 – franchises to operate public utilities shall be subject to amendment, alteration or repeal by the Congress when the common good so requires - does not cover marriage contract, marriage being a social institution subject at all times to regulation by the legislature and to change of the original conditions [Maryland v. Hill, 125 US 129] – does not cover public office or salaries, except those already earned. [Mississippi v. Miller, 276 US 174] LICENSE AGREEMENTS are not contracts within the purview of the due process and the nonimpairment of contracts clauses enshrined in the Constitution. [Republic of the Philippines v. Pagadian City Timber Co., Inc., G.R. No. 159308, September 16, 2008] Laws – statutes, executive orders and administrative regulations, municipal ordinances [Lim v. Register of Deeds, 46 OG 3665] BUT does not include judicial decisions [but see Ganzon v. Inserto, 123 SCRA 713 – where it was held that the clause would be violated by the substitution of a mortgage with a surety bond as security for the payment of a loan as this would change the terms and conditions of the original mortgage contract over the mortgagee’s objection. – This change was effected by a decision of a court, not by a law.] To impair, the law must retroact so as to affect existing contracts concluded before its enactment; no impairment if the law is to be applied prospectively. Impairment is anything that diminishes the efficacy of the contract as when the principal of the loan is reduced or the period for payment is either lengthened or shortened Remedies – there will be impairment only if all remedies are withdrawn, even if the only remedy left is the most difficult [Manila Trading Co. v. Reyes, 62 Phil. 461] The impairment clause may be limited by the State’s fundamental powers.

23

Gold Clause Cases – contracts stipulated payment should be made in gold despite a change in currency. Subsequent law converting currency to silver was considered valid. [Norman v. Baltimore, 294 US 240] AN EXECUTIVE ORDER and a law declared a moratorium on the payment of pre-war debts until after eight years from the settlement of the war damage claims of the debtors. The law was considered invalid – no more emergency by reason of the war – period was oppressively long. [Rutter v. Esteban, 93 Phil. 68] A law converted all pre-existing share tenancy contracts to leasehold tenancy arrangements. Valid – police power. [Illusorio v. Court of Agrarian Reform, 17 SCRA 25] Lots sold for residential purposes used for construction of commercial buildings based on new zoning ordinance. Valid – police power. [Ortigas & Co. v. Feati Bank, 94 SCRA 533] BP 22 – valid exercise of the police power. [Lozano v. Martinez, 146 SCRA 323] A government directive which discontinued assignment of salaries of teachers to creditors is not offensive to the impairment clause because the latter could still collect loans after salaries had been withdrawn by the employees themselves. [Tiro v. Hontanosas, 125 SCRA 697] Substitution of mortgage with security bond as security for payment of loans violative of impairment clause (Note: it was a court which made this change.) [Ganzon v. Inserto, 123 SCRA 713] A private company had a contract with a town to supply water. When the town became a city, the latter expropriated the properties and franchises of the water company. Valid. [Long Island Water Supply Co., Inc. v. Brooklyn, 166 US 685] Section 47 [of R.A. No. 8791] did not divest juridical persons of the right to redeem their foreclosed properties but only modified the time for the exercise of such right by reducing the one-year period originally provided in Act No. 3135. The new redemption period commences from the date of foreclosure sale, and expires upon registration of the certificate of sale or three months after foreclosure, whichever is earlier. There is likewise no retroactive application of the new redemption period because Section 47 exempts from its operation those properties foreclosed prior to its effectivity and whose owners shall retain their redemption rights under Act No. 3135. [Goldenway Merchandising Corporation v. Equitable PCI Bank –G.R. No. 195540, March 13, 2013, First Division, Villarama] Custodial Investigation – any questioning by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. [Miranda v. Arizona, 384 US 436] The right to counsel attaches upon the start of the investigation, i.e., when the investigating officer starts to ask questions to elicit information and/or confessions or admissions from the accused. [Gamboa v. Cruz, G.R. No. L-56291, 27 June 1988, 162 SCRA 642, 653] RA 7438 also provides that “custodial investigation shall include the practice of issuing an ‘invitation’ to a person who is investigated in connection with an offense he is suspected to have committed, without prejudice to the liability of the ‘inviting’ officer for any violation of law.” - The accused was, upon his arrest in Quezon where he had fled, subjected by the police to informal inculpatory investigation that continued during their trip to Manila, where his formal investigation was conducted at the police station. He was not assisted by counsel, who arrived the following day. His confession during the trip from Quezon was held inadmissible. [People v. Compil, 244 SCRA 135] It was during the preliminary investigation that Bokingco mentioned his and Col’s plan to kill Pasion. Bokingco’s confession was admittedly taken without the assistance of counsel in violation of Section 12, Article III of the 1987 Constitution. In People v. Sunga, [447 Phil. 776 (2003)]we held that “the right to counsel applies in certain pretrial proceedings that can be deemed ‘critical stages’ in the criminal process. The preliminary investigation can be no different from the in-custody interrogations by the police, for a suspect who takes part in a preliminary investigation will be subjected to no less than the State's processes, oftentimes intimidating and relentless, of pursuing those who might be liable for criminal prosecution.” [People v. Bokingo – G.R. No. 187536, August 10, 2011] The guarantees of Sec. 12 (1), Art. III of the 1987 Constitution, or the so-called Miranda rights, may be invoked only by a person while he is under custodial investigation. Custodial investigation starts when the police investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect taken into custody by the police who starts the interrogation and propounds questions to the person to elicit incriminating statements. [People v. Lara -G.R. No. 199877, August 13, 2012] Line-ups – After the start of the custodial investigation, any identification of an uncounseled accused made in a police line-up is inadmissible. [People v. Macam, 238 SCRA 306] BUT, citing Gamboa v. Cruz [162 SCRA 642 (1988)], the Supreme Court, in People v. Lamsing [248 SCRA 471] and People v. Salvatierra [276 SCRA 55], declared that the right to counsel is NOT available during a police line-up as this is not considered part of the custodial investigation. [De la Torre v. Court of Appeals, 294 SCRA 196; recently affirmed in People v. Lara -G.R. No. 199877, August 13, 2012] RE-ENACTMENT of the crime in the absence of counsel is inadmissible evidence against the accused. [People v. Suarez, 267 SCRA 119]

24

The right to counsel is not essential in administrative proceedings. [Ampong v CSC, G.R. No. 167916, August 26, 2008] No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited. - SWEARING OFFICERS should have confessants physically examined by independent doctors before administering the path. [People v. Barros, 122 SCRA 34] Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him. - Uncounselled confession made during custodial investigation [made before the accused was advised of his custodial rights], as well as evidence obtained from house of the accused, inadmissible. Uncounselled confession made to a mayor, whom the accused treated as a confidante, and who did not even question the accused, admissible. Statements spontaneously made by a suspect to news reporters on a televised interview are deemed voluntary and are admissible in evidence. [People v. Andan, G.R. No. 116437, March 3, 1997, 269 SCRA 95, 109-110.] Uncounselled extrajudicial statement given to barangay tanods, including the Barangay Chairman, inside a barangay hall INADMISSIBLE. But uncounselled admission [of crime of arson] made to a neighbor ADMISSIBLE. [People v. Mayo, G.R. No. 170470, September 26, 2006] Uncounselled but voluntary written admissions made to kagawads ADMISSIBLE. Not under custodial investigation at the time. [People v. Gil, G.R. No. 172468, October 15, 2008] In People v. Wong Chuen Ming [326 Phil. 192 (1996)], the trial court, in convicting the accused, relied heavily on the signatures which they affixed on the boxes of Alpen Cereals and on the plastic bags. The Court construed the accused’s act of affixing their signatures thereon as a tacit admission of the crime charged. And, since the accused were not informed of their Miranda rights when they affixed their signatures, the admission was declared inadmissible evidence for having been obtained in violation of their constitutional rights. [Ho Wai Pang v. People - G.R. No. 176229, October 19, 2011, First Division, Del Castillo] The Right to Bail - one who is not detained may not post bail. - Any person in custody who is not yet charged in court “may apply for bail with any court in the province, city or municipality where he is held.” Despite the absence of any written application, respondent judge verbally granted bail to Melgazo. This is a clear deviation from the procedure laid down in Sec. 17 of Rule 114. As regards the insistence of Judge Canoy that such may be considered as “constructive bail,” there is no such species of bail under the Rules. [Pantilo v. Canoy, A.M. No. RTJ-11-2262, February 9, 2011] - Jurisprudence is replete with decisions on the procedural necessity of a hearing, whether summary or otherwise, relative to the grant of bail, especially in cases involving offenses punishable by death, reclusion perpetua or life imprisonment, where bail is a matter of discretion. [Dericto v. Bautista, A.M. No. MTJ-99-1205, November 29, 2000, 346 SCRA 223, 227] - Bail may be granted even if evidence of guilt is strong where the accused is ill and requires hospitalization. [De la Rama v. People’s Court, 77 Phil. 461] Reliance on a previous order granting bail does not justify the absence of a hearing in a subsequent petition for bail. [Basco v. Rapatalo, supra note 26; citing Baylon v. Sison, 313 Phil. 99 (1995); Tucay v. Domangas, 312 Phil. 135 (1995)] Even if the prosecution fails to adduce evidence in opposition to an application for bail of an accused, the court may still require the prosecution to answer questions in order to ascertain, not only the strength of the State's evidence, but also the adequacy of the amount of bail. [Villanueva v. Buaya, A.M. No. RTJ-08-2131, November 22, 2010] Even where there is no petition for bail in a case like Criminal Case No. 1138-03, a hearing should still be held. This hearing is separate and distinct from the initial hearing to determine the existence of probable cause, in which the trial judge ascertains whether or not there is sufficient ground to engender a well-founded belief that a crime has been committed and that the accused is probably guilty of the crime. The Prosecution must be given a chance to show the strength of its evidence; otherwise, a violation of due process occurs. [Directo v. Bautista, A.M. No. MTJ-99-1205, November 29, 2000, 346 SCRA 223] The fact that the public prosecutor recommended bail for Ancheta did not warrant dispensing with the hearing. xxx [MarzanGelacio v. Flores, A.M. No. RTJ-99-1488, June 20, 2000, 334 SCRA 1, 9] in whom alone the discretion to determine whether to grant bail or not was vested. Whatever the public prosecutor recommended, including the amount of bail, was non-binding. Nor did such recommendation constitute a showing that the evidence of guilt was not strong. If it was otherwise, the trial judge could become unavoidably controlled by the Prosecution. [Gacal v. Infante - A.M. No. RTJ- 04-1845, October 5, 2011, First Division, Bersamin] SEPARATE HEARING for bail not indispensable – hearing on petition for bail may be summary in nature or held in the course of the trial. [Gerardo v. CFI, 86 Phil. 504] The earlier ruling of this Court that posting of bail constitutes a waiver of the right to question the validity of the arrest has already been superseded by Section 26, Rule 114 of the Revised Rules of Criminal 25

Procedure. Furthermore, the principle that the accused is precluded from questioning the legality of his arrest after arraignment is true only if he voluntarily enters his plea and participates during trial, without previously invoking his objections thereto. [Borlongan v. Pena, G.R. No. 143591, November 23, 2007] Criminal Due Process - Denial of right to preliminary investigation is a denial of due process, even if the right to a preliminary investigation is just a statutory right. [Patanao v. Enage, 121 SCRA 228] - Upon the filing of the complaint and affidavit with respect to cases cognizable by the MTCC, the prosecutor shall take the appropriate action based on the affidavits and other supporting documents submitted by the complainant. It means that the prosecutor may either dismiss the complaint if he does not see sufficient reason to proceed with the case, or file the information if he finds probable cause. The prosecutor is not mandated to require the submission of counter-affidavits. Petitioners could not validly claim the right to preliminary investigation. They were not denied due process. [Borlongan v. Pena, G.R. No. 143591, November 23, 2007] - A judge, who is also the mayor, should not have a share in the fines he imposes against the accused who appear before him. [Tumey v. Ohio, 273 US 510] - Police authorities forced an emetic solution through a tube into the stomach of a suspect to eject two narcotic pills he had swallowed to prevent their use as evidence against him. Violative of due process – [Rochin v. California, 342 US 165] Small amount of blood extracted from an unconscious person suspected of being drunk was not considered violative of due process. [Breithanpat v. Abram, 352 US 432] - the determination of probable cause, for purposes of preliminary investigation, is an executive function. [Lim Po v. Department of Justice - G.R. No. 195198, February 11, 2013, First Division, Reyes] Penal provisions of an EO which became effective on June 29, 1982 were sought to be enforced against the accused for acts they committed on April 2, 1982. Violative of due process. [Pesigan v. Angeles, 129 SCRA 174] Said EO was declared unconstitutional in Ynot v. IAC [148 SCRA 659]. Date of publication of penal laws is the date of the release for circulation of the OG. [People v. Veridiano, 132 SCRA 524] Under the present rule, the grant of bail is a matter of discretion upon conviction by the RTC of an offense not punishable by death, reclusion perpetua or life imprisonment, as here. [See Rule 114, Section 5, Rules of Court] The Court held: Indeed, pursuant to the "tough on bail pending appeal" policy, the presence of bail-negating conditions mandates the denial or revocation of bail pending appeal such that those circumstances are deemed to be as grave as conviction by the trial court for an offense punishable by death, reclusion perpetua or life imprisonment where bail is prohibited. [Leviste v. Court of Appeals, G.R. No. 189122, March 17, 2010, 615 SCRA 619, 648, cited in Qui v. People - G.R. No. 196161, September 26, 2012, Third Division, Velasco]

The Rights of the Accused ACCUSATION is not synonymous with guilt. [People v. Dramayo, 42 SCRA 59] The constitutional presumption of innocence may be overcome by contrary presumptions based on the experience of human conduct, such as “the wicked flee when no man pursueth, but the righteous are as bold as a lion.” [People v. Labara, April 20, 1954] Escape from detention during the pendency of the case before the trial court is in itself an indication of his guilt. [People v. Isang, G.R. No. 183087, December 4, 2008] Possession of stolen property may give rise to the reasonable presumption that it was he himself who had stolen it. [US v. Espia, 16 Phil. 506] “Any person who has committed any act of disloyalty to the State…provided that the filing of the charges for the commission of such crimes before a civil court or military tribunal after preliminary investigation shall be prima facie evidence of such fact." – UNCONSTITUTIONAL for being violative of the constitutional presumption of innocence. [Dumlao v. COMELEC, 95 SCRA 392] No inference of guilt may be drawn against an accused for his failure to make a statement of any sort. [People v. Arciaga, 99 SCRA 1] While the accused has a right to be silent, they run the risk of an inference from the non-production of evidence. [People v. Solis, 128 SCRA 217] Failure or refusal of the accused to testify may prejudice him if the prosecution has already established a prima facie case against him. [People v. Resano, 132 SCRA 71] The constitutional mandate of presumption of innocence prevails until a promulgation of final conviction is made. [Trillanes v. Pimentel , G.R. No. 179817, June 27, 2008] 26

Denial of right to preliminary investigation is a denial of due process, even if the right to a preliminary investigation is just a statutory right. [Patanao v. Enage, 121 SCRA 228] Denial of this right, in the absence of a waiver, will violate due process. [Bunye v. Sandiganbayan, 205 SCRA 92] Preliminary investigation is a component part of due process in criminal justice. [Sales v. Sandiganbayan, 369 SCRA 293] The Ombudsman need not conduct a preliminary investigation upon receipt of a complaint. Indeed, we have said in Knecht v. Desierto [353 Phil. 494 (1998)] and later in Mamburao, Inc. v. Office of the Ombudsman [398 Phil. 762 (2000)] and Karaan v. Office of the Ombudsman [476 Phil. 536 (2004)] that should investigating officers find a complaint utterly devoid of merit, they may recommend its outright dismissal. Moreover, it is also within their discretion to determine whether or not preliminary investigation should be conducted. The Court has undoubtedly acknowledged the powers of the Ombudsman to dismiss a complaint outright without a preliminary investigation in The Presidential Ad Hoc Fact-Finding Committee on Behest Loans v. Desierto. [437 Phil. 702 (2002)] We reiterate that the Ombudsman has full discretion to determine whether a criminal case should be filed, including whether a preliminary investigation is warranted. The Court therefore gives due deference to the Ombudsman’s decision to no longer conduct a preliminary investigation in this case on the criminal charges levelled against respondent Velasco. [Judge Angeles v. Gutierrez - G.R. Nos. 189161 & 189173, March 21, 2012] The right to be assisted by counsel is indispensable only in judicial criminal proceedings. - The right to counsel begins from the time a person is taken into custody and placed under investigation for the commission of a crime. [People v. Lino, 196 SCRA 809] The right to counsel does not cease after trial; continues on appeal. [People v. Rio, 201 SCRA 702] Deaf-mute could not defend himself at the trial because of lack of sign language expert. Conviction reversed. [People v. Parazo, 310 SCRA 146] The description and not the designation of the offense is controlling. Even if there is an erroneous designation [e.g., Section 3b of the Anti-Graft Law], an accused may still be convicted of bribery if the information properly “describes” the offense. [Soriano v. Sandiganbayan, 131 SCRA 184] A person charged with rape, of which he was absolved, cannot be convicted of qualified seduction, which was not included in the information. [People v. Ramirez, 69 SCRA 144] Conviction of the accused of rape by intimidation under an information charging him with raping his daughter while she was asleep and unconscious would violate his constitutional right to be informed of the nature and cause of the accusation against him. [People v. Abino, 372 SCRA 50] A person charged with homicide by drowning cannot be convicted of homicide by stabbing. [People v. Ortega, 276 SCRA 166] The use of the words “aggravating/qualifying circumstances” will not add any essential element to the crime. Neither will the use of such words further apprise the accused of the nature of the charge. The specific allegation of the attendant circumstance in the Information, coupled with the designation of the offense and a statement of the acts constituting the offense as required in Sections 8 and 9 of Rule 110, is sufficient to warn the accused. [People v. de la Cruz, G.R. No. 174371, December 11, 2008] Petitioners cannot be validly convicted on the basis of the original information as the prosecution failed to allege in the informations that the crimes were committed “in relation to their office.” Petitioners were thus not placed in danger of being convicted when they entered their plea of not guilty to the insufficient information. [Herrera v. Sandiganbayan, G.R. Nos. 119660-61, February 13, 2009, 2009; Guy v. People, G.R. Nos. 166794-96, March 20, 2009] The amendment entails the deletion of the phrase “gross neglect of duty” from the Information. Although this may be considered a substantial amendment, the same is allowable even after arraignment and plea being beneficial to the accused. As a replacement, “gross inexcusable negligence” would be included in the Information as a modality in the commission of the offense. This Court believes that the same constitutes an amendment only in form. [Albert v. Sandiganbayan, G.R. No. 164015, February 26, 2009] Petitioner claims that the information filed against him charged him with violation of Art. 171 of the RPC in his capacity as Board Member of the Sangguniang Panlalawigan, but the Sandiganbayan convicted him of violation of Art. 172 as a private individual. Thus, he avers, he had not been given a chance to defend himself from a criminal charge of which he had been convicted, claiming a violation of his right to be informed of the nature and cause of the accusation against him and his right to due process of law. The last paragraph of Art. 172 does not specify that the offending person is a public or private individual as does its par. 1. The crime in Art. 171 is absorbed by the last paragraph of Art. 172. The headings in italics of the two articles are not controlling. What is controlling is not the title of the 27

complaint, or the designation of the offense charged or the particular law or part thereof allegedly violated, but the description of the crime charged and the particular facts therein recited. [Pactolin v. Sandiganbayan, G.R. No. 161455, May 20, 2008, Velasco] Admittedly, the prosecution could have alleged in the information the mode of committing a violation of Section 3(e) of RA No. 3019 with technical precision by using the disjunctive term "or" instead of the conjunctive term "and." Nonetheless, in the early case of Gallego, et al. v. Sandiganbayan [201 Phil. 379 (1982)], the Court already clarified that the phrases "manifest partiality," "evident bad faith" and "gross inexcusable negligence" are merely descriptive of the different modes by which the offense penalized in Section 3(e) of RA No. 3019 may be committed, and that the use of all these phrases in the same information does not mean that the indictment charges three distinct offenses. [Jaca v. People, G.R. No. 166967, January 28, 2013] The CA further ratiocinated that the variance in the two crimes is not fatal to Pielago’s conviction. Indeed, in order to obtain a conviction for rape by sexual assault, it is essential for the prosecution to establish the elements that constitute such crime. Article 266-A(2) of the Revised Penal Code explicitly provides that the gravamen of the crime of rape by sexual assault which is the insertion of the penis into another person’s mouth or anal orifice, or any instrument or object, into another person’s genital or anal orifice. In the instant case, this element is clearly present when AAA straightforwardly testified in court that Pielago inserted his forefinger in her vagina and anus. Jurisprudence has it that testimonies of child-victims are given full weight and credit, since when a woman or a girl-child says that she has been raped, she says in effect all that is necessary to show that rape was indeed committed. Thus, AAA’s unrelenting narration of what transpired, accompanied by her categorical identification of Pielago as the malefactor, established the case for the prosecution. [Pielago v. People - G.R. No. 202020, March 13, 2013] The CA correctly declared that the illegal possession of marijuana was “a crime that is necessarily included in the crime of drug pushing or dealing, for which the accused have been charged with.” The right of Manansala to be informed of the nature and cause of the accusation against him enunciated in Section 14(2), Article III of the 1987 Constitution was not violated simply because the information had precisely charged him with selling, delivering, giving away and distributing more or less 750 grams of dried marijuana leaves. Thereby, he was being sufficiently given notice that he was also to be held to account for possessing more or less 750 grams of dried marijuana leaves. As Lacerna and similar rulings have explained, the ·crime of illegal sale of marijuana defined and punished under Section 4 of Republic Act No. 6425, as amended, implied the prior possession of the marijuana. As such, the crime of illegal sale included or absorbed the crime of illegal possession. The rule is that when there is a variance between the offense charged in the complaint or information, and that proved or established by the evidence, and the offense as charged necessarily includes the offense proved, the accused shall be convicted of the offense proved included in that which is charged. [Section 4, Rule 120, Rules of Court (1988)] According to Section 5, Rule 120, Rules of Court (1985), the rule then applicable, an offense charged necessarily includes that which is proved, when some of the essential elements or ingredients of the former, as this is alleged in the complaint or information, constitute the latter. [People v. Manansala G.R. No. 175939, April 3, 2013, First Division, Bersamin] Exception to the right to meet witnesses face to face – dying declarations. The right to cross-examine is not an indispensable aspect of due process. Clearly, the right to crossexamine a witness, although a fundamental right of a party, may be waived. [Equitable PCIBanking Corporation v. RCBC Capital Corporation, G.R. No. 182248, December 18, 2008] If a witness dies before his cross-examination, his direct testimony can be stricken off the record; may be retained if the material points of his direct testimony had been covered on cross. [People v. Seneres, 99 SCRA 92; People v. Gorospe, 129 SCRA 233] Failure to invoke right to compulsory process constitutes a waiver that cannot be rectified or undone on appeal. [US v. Garcia, 10 Phil. 384] It is the court’s duty to compel the attendance of persons subject of subpoenas. [People v. Bardaje, 99 SCRA 388] - The rights of an accused in a criminal prosecution to cross examine the witness against him and to have compulsory process issued to secure the attendance of witnesses and the production of other evidence in his behalf does not lie. CTA Case No. 7160 is not a criminal prosecution, and even granting that it is related to I.S. No. 2005-203, the respondents in the latter proceeding are the officers and accountant of petitioner-corporation, not petitioner. [Fitness Design, Inc. v. Commissioner of Internal Revenue, G.R. No. 177982, October 17, 2008] There can be no valid conviction before a valid arraignment. [Borja v. Mendoza, 77 SCRA 422] The right to be present at trial is a personal right that may be waived, BUT his presence may be required if it is 28

necessary for purposes of identification [People v. Presiding Judge, 125 SCRA 269 and People v. Macaraeg, 141 SCRA 37] and also for arraignment. [Aquino v. Military Commission No. 2, 63 SCRA 546] A trial in absentia does not abrogate the provisions of the Rules of Court regarding forfeiture of the bail bond if the accused fails to appear. [Rule 114, Section 21] [People v. Prieto, 84 SCRA 198] The Writ of Habeas Corpus - The liberty of a person may be restored by habeas corpus where he is subjected to physical restraint, such as arbitrary detention, or even by moral restraint, as when a housemaid is prevented from leaving her employ because of the influence of the person detaining her. [Caunca v. Salazar, 82 Phil. 851] A prisoner convicted by a court without jurisdiction or where his sentence has become invalid, as in the case of a person convicted of a crime of a political complexion during the Japanese Occupation after restoration of the legitimate government, may avail himself of the writ. [Alcantara v. Director of Prisons, 75 Phil. 749] Habeas corpus is also available to a person sentence to a longer penalty than that subsequently meted out to another person convicted of the same offense [Gumabon v. Director of Prisions, 37 SCRA 420] or in cases of unlawful denial of bail [Zafra v. City Warden, 97 SCRA 771] A restrictive custody and monitoring of movements or whereabouts of police officers under investigation by their superiors is not a form of illegal detention or restraint of liberty. [Manalo v. Calderon, G.R. No. 178920, October 15, 2007] A 94-year-old widow had been living with her nephew, who acted as her guardian. Her other relatives took her, and said nephew filed a petition for habeas corpus. The writ of habeas corpus is issued when one is either deprived of liberty or is wrongfully being prevented from exercising legal custody over another person. Thus, it contemplates two instances: (1) deprivation of a person’s liberty either through illegal confinement or through detention and (2) withholding of the custody of any person from someone entitled to such custody. If the respondents are not detaining or restraining the applicant or the person in whose behalf the petition is filed, the petition should be dismissed. Petition dismissed because of finding that the widow was not being detained and restrained of her liberty. [In the Matter of the petition of Habeas Corpus of Eufemia E. Rodriguez, filed by Edgardo E. Veluz, G.R. No. 169482, January 29, 2008] The petition for a writ of amparo is a remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity. The writ shall cover extralegal killings and enforced disappearances or threats thereof. [Section 1] Mere substantial evidence is required. [Section 17] – a writ of amparo should not be issued when the petition merely states that he is “under threat of deprivation of liberty with the police stating that he is not arrested but merely ‘in custody.’ [Salcedo v. Bollozos, A.M. NO. RTJ-10-2236, July 5, 2010]; or to protect concerns that are purely property or commercial, as in this forcible entry case, where enforcement of the judgment had resulted in violence. [Tapuz v. del Rosario, G.R. No. 182484, June 17, 2008]; excludes the protection of property rights. [Roxas v. Macapagal-Arroyo, G.R. No. 189155, September 7, 2010], such as the threatened demolition of a dwelling by virtue of a final judgment of the court. [Canlas v. Napico Homeowners’ Association, G.R. No. 182795, June 5, 2008] A petition for a Writ of Amparo may be filed by any concerned citizen, organization, association or institution only if there is no known member of the immediate family or relative of the aggrieved party. [Section 2 of the Rule on the Writ of Amparo - A.M. No. 07-9-12-SC, October 24, 2007] BUT a petition for a Writ of Habeas Corpus may be filed by any person on behalf of the aggrieved party. [Boac v. Cadapan, GR No. 184461, May 31, 2011] The Writ of Habeas Data requires concrete allegations of unjustified or unlawful violation of the right to privacy related to the right to life, liberty or security. [Section 6 [a] and should not issue for purposes of “fishing expeditions.” [Tapuz v. del Rosario, G.R. No. 182484, June 17, 2008] The Writ of Habeas Data may not be granted on the basis of labor-related issues. [Manila Electric Company v. Lim, G.R. No. 184769, October 5, 2010] The Right against Self-Incrimination - AVAILABLE not only in criminal prosecutions but also in all other government proceedings, including civil actions and administrative or legislative investigations. May be claimed not only by an accused, but also by any witness to whom an incriminating question is addressed. When available – an accused may altogether refuse to testify – as to an ordinary witness, including witnesses in legislative inquiries, the right may be invoked only as and when the incriminating question is asked. [Senate v. Ermita, G.R. No. 169777, April 20, 2006; Sabio v. Gordon, G.R. No. 174340, 29

October 17, 2006; Standard Chartered Bank v. Senate Committee on Banks, Financial Institutions and Currencies , G.R. No. 167173, December 27, 2007] A person charged with rape may be examined for gonorrhea, which would be the same as fingerprinting or examining other parts or features of the body for identification purposes. [US v. Tan Teng , 23 Phil. 145] A woman accused of adultery may be examined to determine if she is pregnant. [Villaflor v. Summers, 41 Phil. 62] The prohibition of compelling a man in a criminal court to be a witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material. [Holt v. US, 218 US 245; Alih v. Castro, 151 SCRA 279] BUT NOTE Social Justice Society v. Dangerous Drugs Board –[G.R. No. 157870, November 3, 2008], where the Supreme Court invalidated mandatory drug testing for persons accused of crimes for being a violation of their right to privacy. The prohibition applies to compulsion for the production of documents, papers and chattels that may be used as evidence against the witness, except where the state has a right to inspect the same, such as the books of accounts of corporations, under the police power. [4 Wigmore, Sec. 264] The privilege also protects the accused against any attempt to compel him to furnish a specimen of his handwriting in connection with his prosecution for falsification. [Beltran v. Samson, 53 Phil. 570] Article III, Section 18. (1) No person shall be detained solely by reason of his political beliefs and aspirations. (2) No involuntary servitude in any form shall exist except as a punishment for a crime whereof the party shall have been duly convicted. COVERS slavery and peonage. [Revised Penal Code – penalties are imposed upon any person who, in order to require or enforce the payment of a debt, shall compel the debtor to work for him, against his will, as household servant or farm-laborer. (Article 247)] EXCEPTIONS – [1] punishment for a crime [2] military service [Art. II, Sec. 4; People v. Zosa, 38 OG 1676] [3] naval enlistment [Robertson v. Baldwin, 165 US 245][4] posse comitatus [US v. Pompeya, 31 Phil. 245] [5] return to work orders [Kaisahan ng Manggagawa sa Kahoy v. Gotamco Sawmills, 45 OG Supp. No. 9, p. 147] [6] patria potestas – unemancipated minors must obey their parents [Civil Code, Article 311] A housemaid who was being detained and required to render services was released on habeas corpus. [Caunca v. Salazar, 82 Phil. 851] The US Supreme Court declared as unconstitutional a penal statute declaring persons who receive advance payment for work but subsequently refuse to work as having induced said advance payment with intent to defraud. [Pollock v. Williams, 322 US 4] Punishment PENALTY must ordinarily be proportionate to the offense BUT, where the offense has become so rampant as to require the adoption of a more effective deterrent, a more severe penalty may be justified, like the theft of coconuts or jeeps, punished as qualified theft under the Revised Penal Code. MECHANICAL failure in electric chair considered an unforeseeable event – not cruel and unusual punishment. [Louisiana v. Resweber, 329 US 459] Article III, Section 19 (2) The employment of physical, psychological, or degrading punishment against any prisoner or detainee or the use of substandard or inadequate penal facilities under subhuman conditions shall be dealt with by law. Article III, Section 20. No person shall be imprisoned for debt or non-payment of a poll tax. DEBT – refers to any civil obligation arising from contract, expressed or implied – a purely private matter which gives rise only to civil actions. includes even debts obtained through fraud [Ganaway v. Quillen, 42 Phil. 805] BUT see Lozano v. Martinez [146 SCRA 323], where it was ruled that a person can be validly punished in a criminal action if he contracted his debt through fraud. He is to be punished for his deceit, not his debt. A law required employers to pay salaries at least once every two weeks, and punished them for not doing so. VALID – punishment is for refusal to make payment even if capable of making payment. [People v. Merillo, G.R. No. L-3401, June 28, 1951] A defendant in a civil action was ordered arrested for contempt because of his failure, owing to his insolvency, to pay the plaintiff past and future support. INVALID. [Sura v. Martin, 26 SCRA 286] BUT NOTE new law which makes failure to give support a criminal offense, which may be justified as a valid exercise of the police power. 30

An accused [estafa] asked to return the money he embezzled may be subjected to subsidiary imprisonment for his failure to make restitution BUT the law has been amended and subsidiary imprisonment can be imposed only for non-payment of fines. [US v. Cara, 41 Phil. 826] A civil servant who fails to pay a debt may be validly suspended. [Flores v. Tatad, 96 SCRA 676] Double Jeopardy - The principle of double jeopardy applies only to criminal proceedings. [Res judicata in prison grey.] CONVICTED in MTC for grave oral defamation; RTC dismisses appeal on the ground of prescription after finding that the offense committed was only slight oral defamation – double jeopardy has set in. [Castro v. People, G.R. No. 180832, July 23, 2008] The principle of double jeopardy finds no application in administrative cases. [Cayao-Lasam v. Ramolet, G.R. No. 159132, December 18, 2008] REQUISITES – [1] Valid complaint or information - If, without the express consent of the accused, the information is dismissed on the ground that it is defective when it is not so in fact, another prosecution based on the same allegation will constitute double jeopardy. [US v. Yam Tung Way, 21 PHhil. 67] PETITIONERS and the other accused pleaded not guilty to the original informations. Thereafter, at the instance of the petitioners, through a joint petition for bail, they raised the issue of lack of jurisdiction on the ground that the prosecution failed to allege in the informations that the crimes were committed “in relation to their office.” On the same day, respondent court ordered the amendment of the informations accordingly. Thus, the first requirement for double jeopardy to attach, that is, that the informations against the petitioners were valid, has not been complied with. [Herrera v. Sandiganbayan, G.R. Nos. 119660-61, February 13, 2009, 2009] The change of the offense charged from Homicide to Murder is merely a formal amendment and not a substantial amendment or a substitution. Homicide is necessarily included in the crime of murder; thus, the respondent judge merely ordered the amendment of the Information and not the dismissal of the original Information. To repeat, it was the same original information that was amended by merely crossing out the word “Homicide” and writing the word “Murder,” instead, which showed that there was no dismissal of the homicide case. [Pacoy v. Cajigal, G.R. NO. 157472, September 28, 2007] Petitioners cannot be validly convicted on the basis of the original information as the prosecution failed to allege in the informations that the crimes were committed “in relation to their office.” Petitioners were thus not placed in danger of being convicted when they entered their plea of not guilty to the insufficient information. [Herrera v. Sandiganbayan, G.R. Nos. 119660-61, February 13, 2009, 2009; Guy v. People, G.R. Nos. 166794-96, March 20, 2009] [2] Filed before a competent court A person charged before an incompetent court is not placed in first jeopardy because, obviously, a court without jurisdiction cannot render a valid judgment. [De Guzman v. Escalona, 98 SCRA 619] Where an information is motu proprio dismissed for lack of jurisdiction by a court which is actually competent to hear, said dismissal will benefit the accused who shall be entitled to plead double jeopardy. [US v. Regala, 28 Phil. 57] The Supreme Court ruled that military tribunals had no jurisdiction to try cases of civilians. Judgments invalidated. [Olaguer v. Military Commission, 150 SCRA 144] So, in Cruz v. Enrile [160 SCRA 702, it said cases may be re-tried, as there were no valid previous proceedings. BUT in Tan v. Barrios [190 SCRA 686], the Supreme Court said that its ruling in Olaguer should be applied prospectively only to future cases still ongoing or not yet final when that decision was promulgated. Hence, in the interest of justice and consistency, there should be no retroactive nullification of final judgments, whether of conviction or acquittal, rendered by military courts against civilians before the promulgation of the Olaguer decision. Such final sentences should not be disturbed by the State. Only in particular cases where the convicted person or the State shows that there was serious denial of the Constitutional rights of the accused should the nullity of the sentence be declared and a retrial be ordered based on the violation of the constitutional rights of the accused, and not on the Olaguer doctrine. If a retrial is no

31

longer possible, the accused should be released since the judgment against him is null on account of the violation of his constitutional rights and denial of due process. If a court-martial has jurisdiction to try an officer or soldier for a crime, its judgment will be accorded the finality and conclusiveness as to the issues involved which attend the judgments of a civil court in a case of which it may legally take cognizance; x x x and restricting our decision to the above question of double jeopardy, we judge that, consistently with the above act of 1902, and for the reasons stated, the plaintiff in error, a soldier in the Army, having been acquitted of the crime of homicide, alleged to have been committed by him in the Philippines, by a military court of competent jurisdiction, proceeding under the authority of the United States, could not be subsequently tried for the same offense in a civil court exercising authority in that territory. (Marcos v. Chief of Staff, AFP, 89 Phil, 246 (1951), at 248-251, cited in Garcia v. Executive Secretary - G.R. No. 198554, July 30, 2012, Third Division, Peralta] AN INFORMATION FOR PARRICIDE dismissed by a regional trial court based on a mere manifestation of the public prosecutor, and without the judge making an independent assessment of the merits of the case and the evidence on record, which dismissal resulted in the recall of the warrant of arrest], is INEFFECTUAL, and the judge is to be considered as having gravely abused his discretion, such that the subsequent filing of a case for reckless imprudence resulting in parricide filed with the MeTC would not vest in it jurisdiction over the new case, the RTC having retained jurisdiction over the offense to the exclusion of all other courts. The requisite that the judgment be rendered by a court of competent jurisdiction is therefore absent. [Honrales v. Honrales, G.R. No. 182651, August 25, 2010] [3] To which the defendant had pleaded No double jeopardy if the complaint is dismissed before arraignment of the accused. [US v. Solis, 6 Phil. 676] The accused, after pleading guilty, testified to prove mitigating circumstances. Plea of guilty deemed vacated because of the testimony. No double jeopardy as there was no valid plea upon promulgation of judgment of acquittal. [People v. Balisacan, 17 SCRA 1119] [4] Of which he had been previously acquitted or convicted or which was dismissed or otherwise terminated without his express consent Dismissal with the express consent of the accused will not bar another prosecution but consent, to be effective, must be express. Mere silence or failure of the accused to object to the dismissal cannot be considered as consent. [People v. Ylagan, 58 Phil. 851] The prosecution moved for the dismissal of the case in the morning. Defense counsel offered no objection. In the afternoon of the same day, defense counsel and the accused submitted a formal manifestation objecting to the dismissal. SC - Express consent. No double jeopardy. [People v. Pilpa, 76 SCRA 81] Dismissal, even if with the express consent of the accused, will give rise to double jeopardy if the same is based on the insufficiency of the evidence of the prosecution – acquittal. In this case, the prosecution filed a petition for certiorari questioning the erroneous dismissal by the judge. SC said however erroneous the order of dismissal is, and although a miscarriage of justice resulted from said order, double jeopardy sets in. [People v. City Court of Silay, 74 SCRA 248] Rule 117, Section 9 – the grant of a motion to quash, filed by the defendant before he makes his plea, can be appealed as the defendant has not been placed in jeopardy UNLESS the basis for the dismissal is the extinction of criminal liability and double jeopardy. [Los Banos v. Pedro, G.R. No. 173588, April 22, 2009] A judgment of acquittal is final and is no longer reviewable. [People v. Terrado, G.R. No. 148226, July 14, 2008, 558 SCRA 84, 93] As we have previously held in People v. Court of Appeals [G.R. No. 159261, February 21, 2007, 516 SCRA 383], "a verdict of acquittal is immediately final and a reexamination of the merits of such acquittal, even in the appellate courts, will put the accused in jeopardy for the same offense." [Id., at 397] True, the finality of acquittal rule is not one without exception as when the trial court commits grave abuse of discretion amounting to lack or excess of jurisdiction. In such a case, the judgment of acquittal may be questioned through the extraordinary writ of certiorari under Rule 65 of the Rules of Court. In the instant case, however, we cannot treat the appeal as a Rule 65 petition as it raises no jurisdictional error that can invalidate the judgment of acquittal. Suffice it to state that the trial court is in the best position to determine the sufficiency of evidence against both appellant and Ginumtad. It is a well-settled rule that this Court accords great respect and full weight to the trial court’s findings, unless the trial court overlooked substantial facts which could have affected the outcome of the case. [People v. Montinola, G.R. No. 178061, January 31, 2008, 543 SCRA 412, 427] It 32

is not at all irregular for a court to convict one of the accused and acquit the other. The acquittal of Ginumtad in this case is final and it shall not be disturbed. [People v. Banig - G.R. No. 177137, August 23, 2012, First Division, del Castillo] In the present case, the withdrawal of the criminal cases did not include a categorical dismissal thereof by the RTC. Double jeopardy had not set in because Soriano was not acquitted nor was there a valid and legal dismissal or termination of the fifty one (51) cases against her. It stands to reason therefore that the fifth requisite which requires conviction or acquittal of the accused, or the dismissal of the case without the approval of the accused, was not met. xxx. Since we have held that the March 17, 2004 Order granting the motion to dismiss was committed with grave abuse of discretion, then respondents were not acquitted nor was there a valid and legal dismissal or termination of the case. Ergo, the fifth requisite which requires the conviction and acquittal of the accused, or the dismissal of the case without the approval of the accused, was not met. Thus, double jeopardy has not set in. [See Cerezo v. People, G.R. No. 185230, 1 June 2011, 650 SCRA 222, 229, cited in Philippine National Bank v. Soriano - G.R. No. 164051, October 3, 2012, Second Division, Perez] Appeal of the Prosecution - An acquittal [Castro v. People, July 23, 2008] or a dismissal due to insufficiency of evidence [People v. City Court of Silay, 74 SCRA 248], except one made with grave abuse of discretion [Galman v. Sandiganbayan, 114 SCRA 43], or a dismissal based on a denial of right to a speedy trial [People v. Anano, 97 Phil. 28], gives rise to double jeopardy. The grant of a demurrer to evidence operates as an acquittal and is, thus, final and unappealable, unless the court acted with grave abuse of discretion, as when the prosecution was denied the opportunity to present its case [when the court pre-emptively dismissed the case or aborted its right to complete its presentation of evidence] or where the trial was a sham. [People v. Tan, G.R. No. 167526, July 26, 2010], even if done at the instance of the accused, give rise to double jeopardy, unless it can be shown that the court’s actions are tainted by grave abuse of discretion. [People v. Pablo, 98 SCRA 289] Given that Justice Nario’s verbal order dismissing Criminal Case Nos. 25922-25939 [on the ground of the accused’s right to a speedy trial] is null and void, and does not exist at all in contemplation of law, it follows that petitioners cannot invoke the constitutional right against double jeopardy. In the instant Petition, legal jeopardy has not yet attached since there is so far no valid dismissal or termination of the criminal cases against petitioners. [Jacob v. Sandiganbayan, G.R. No. 162206, November 17, 2010] Crimes Covered - The original offense charged OR for any attempt to commit the same or frustration thereof OR for any offense which necessarily includes or is necessarily included in the offense charged in the original complaint of information. [Examples – murder and homicide] Doctrine of Supervening Event - An accused may be prosecuted for another offense if a subsequent development changes the character of the first indictment under which he may have already been charged OR CONVICTED. [Melo v. People, 85 Phil. 766] A person convicted of physical injuries may still be prosecuted for homicide if the victim dies later. [Diaz v. US, 223 US 442] After pleading not guilty to a complaint for slight physical injuries, the charge was changed to serious physical injuries after it was determined that the injuries became permanent scars. No double jeopardy. [People v Adil, 76 SCRA 462] Inseparable Offenses - Where one offense is inseparable from another and proceeds from the same act, they cannot be the subject of separate prosecutions, such as smoking and possession of opium. [US v. Poh Chi, 20 Phil. 140] One who steals several things from the same person on the same occasion can be held accountable only for one crime of theft. [People v. Tumlos, 67 Phil. 320] One already convicted of less serious physical injuries cannot be later prosecuted for assault on a person in authority committed on the same occasion and against the same victim. [Tacas v. Cariaso, 72 SCRA 528] PETITIONER was charged before the MeTC with two separate offenses: (1) Reckless Imprudence Resulting in Slight Physical Injuries (Criminal Case No. 82367); and (2) Reckless Imprudence Resulting in Homicide and Damage to Property (Criminal Case No. 82366). Petitioner pleaded guilty to the charge in Criminal Case No. 82367 and was meted out the penalty of public censure. Invoking this conviction, petitioner moved to quash the Information in Criminal Case No. 82366 for placing him in jeopardy of second punishment for the same offense of reckless imprudence. Reckless imprudence under Article 365 is a single quasi-offense by itself and not merely a means to commit other crimes such that conviction or acquittal of such quasi-offense bars subsequent prosecution for the same quasi-offense, regardless of its various resulting acts [People v. Diaz. [94 Phil. 715 (1954)] Prosecutions under Article 365 should proceed from a single charge regardless of the number or severity of the consequences. In imposing penalties, the judge will do no more than apply the penalties under Article 365 for each consequence alleged and proven. In short, there shall be no splitting of charges under Article 365, and 33

only one information shall be filed in the same first level court. [Ivler v. Modesto-San Pedro, G.R. No. 172716, November 17, 2010] It is possible for one act to give rise to several crimes – violation of motor vehicles law and damage to property. [People v. Guanco, 47 OG 4179] Other examples - falsification and violation of conditional pardon [Culanag v. Director of Prisons, 20 SCRA 1123]; illegal possession of firearms and carrying unlicensed firearms during the election period [Tapales v. CA, 120 SCRA 471]; Illegal recruitment and Estafa [People v. Saley, 291 SCRA 715]; Murder and illegal possession of firearms [People v. Tac-an, 182 SCRA 601] A person acquitted of consented abduction was subsequently charged with qualified seduction arising from the same act on which an earlier prosecution was based. No double jeopardy. [Perez v. CA, 168 SCRA 236] Whether there can be a separate offense of illegal possession of firearm and ammunition if there is another crime committed was already addressed in Agote v. Lorenzo. Agote, like petitioner herein, was convicted of separate charges of (1) illegal possession of firearm and ammunition and (2) violation of the election gun ban by the RTC and the CA. However, applying Section 1 of RA 8294, we set aside Agote’s conviction for illegal possession of firearm since another crime was committed at the same time (violation of the election gun ban). [Madrigal v. People, G.R. No. 182694, August 13, 2008] A person who stole several items from a single victim on a single occasion may be prosecuted can be charged with only one crime of theft. [People v. Tumlos, 67 Phil. 320] Laws and Ordinances - A person convicted of jueteng under an ordinance may not again be charged with the same act under the provisions of the Revised Penal Code. If the two charges are based on one and the same act, conviction or acquittal under either the law or the ordinance shall bar a prosecution under the other. [Yap v. Leuterio, L-1266, April 30, 1959] The accused was charged for having installed a jumper under an ordinance. Complaint dismissed on the ground of prescription. Later, he was charged with theft of electricity under the RPC. Court dismissed the second case, upon motion of the accused. The Supreme Court sustained the dismissal on the ground of double jeopardy. [People v. Relova, 148 SCRA 292] Article III, Section 22. No ex post facto law or bill of attainder shall be enacted. EX POST FACTO LAWS – [1] refer to criminal matters [2] are retroactive in their application [3] work to the prejudice of the accused - EVEN if the law is criminal in nature and is made to operate retroactively, it will not be ex post facto if it favors the accused. NOT EX POST FACTO - War profits tax law retroactively imposing taxes in income acquired during the Japanese occupation. [Republic v. Fernandez, 99 Phil. 934] Preventive suspension provided for in RA 3019, not punitive, merely preventive. [Bayot v. Sandiganbayan, 128 SCRA 383] Suspensions of the privilege of the writ of habeas corpus are not laws. [Montenegro v. Castaneda, 91 Phil. 882] The enactment of R.A. No.9160, on the other hand, is a significant development only because it clearly manifests that prior to its enactment, numbered accounts or anonymous accounts were permitted banking transactions, whether they be allowed by law or by a mere banking regulation. To be sure, an indictment against Estrada using this relatively recent law cannot be maintained without violating the constitutional prohibition on the enactment and use of ex post facto laws. [People v. Estrada, G.R. Nos. 164368-69, April 2, 2009] Not being penal laws, Administrative Order No. 13 and Memorandum Order No. 61 cannot be characterized as ex-post facto laws. [The Presidential Ad-Hoc Fact-Finding Committee on Behest Loans (FFCBL) v. Desierto, G.R. No. 145184, March 14, 2008] RA 1379 providing for forfeiture as a penalty cannot be applied to acquisitions made prior to its passage without running afoul of the Constitution condemning ex post facto laws. [Katigbak v. Solicitor General, 180 SCRA 540] A new law has a prospective, not retroactive, effect. However, penal laws that favor a guilty person, who is not a habitual criminal, shall be given retroactive effect. These are the rule, the exception and exception to the exception on effectivity of laws. Although an additional fine of P15,000.00 is imposed by R.A. No. 8294, the same is still advantageous to the accused, considering that the imprisonment is lowered to prision correccional in its maximum period from reclusion temporal in its maximum period to reclusion perpetua under P.D. No. 1866. [Valeroso v. People, G.R. No. 164815, February 22, 2008] An Administrative Order limiting the authority of the Office of the President to review determinations of the Secretary of Justice to capital offenses is not ex post facto, for being a mere procedural rule. [See

34

Angeles v. Gaite, G.R. No. 165276, November 25, 2009] Remedial laws may be given retroactive effect. [Victorias Milling Co., Inc. v. Padilla, G.R. No. 156962, October 6, 2008] On 20 May 2006, Republic Act No. 9344, otherwise known as the "Juvenile Justice and Welfare Act of 2006," took effect. Section 68 thereof specifically provides for its retroactive application [People v. Sarcia, G.R. No. 169641, 10 September 2009, 599 SCRA 20] xxx. Clearly, Republic Act No. 9344 is applicable in this case even though the crime was committed four (4) years prior to its enactment and effectivity. Parenthetically, with more reason should Republic Act No. 9344 apply to this case as the 2005 conviction by the lower courts was still under review when the law took effect in 2006. [People v. Sarcia, G.R. No. 169641, 10 September 2009, 599 SCRA 20, at 48-49] Section 38 of Republic Act No. 9344 warrants the suspension of sentence of a child in conflict with the law notwithstanding that he/she has reached the age of majority at the time the judgment of conviction is pronounced. [People v. Jacinto, G.R. No. 182239, 16 March 2011, 645 SCRA 590, 621] [People v. Monticalvo - G.R. No. 193507, January 30, 2013, Second Division, Perez] BILL OF ATTAINDER – a legislative act which inflicts punishment without trial, its essence being the substitution of legislative fiat for a judicial determination of guilt. It is only when a statute applies either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial that it becomes a bill of attainder. Anti-Subversion Act is a bill of attainder because it pronounced the guilt of the CPP without any of the forms or safeguards of judicial trial. [People v. Ferrer, 48 SCRA 382] The US Supreme Court considered as a bill of attainder a law prohibiting payment from public funds of compensation to individually named respondents, except for jury or military service, unless they were reappointed by the President with the advice and consent of the Senate. – punishment without judicial trial. [US v. Lovett, 323 US 303] An ordinance required employees to execute affidavits stating whether or not they were ever members of the Communist Party and prohibiting the employment of persons who had advocated the overthrow of the government – VALID – not a bill of attainder – no punishment is imposed by a general regulation which merely provides standards of qualification and eligibility for employment. [Garner v. Board of Public Works of Los Angeles, 341 US 717] R.A. No. 9335 is not a bill of attainder. A bill of attainder is a legislative act which inflicts punishment on individuals or members of a particular group without a judicial trial. Essential to a bill of attainder are a specification of certain individuals or a group of individuals, the imposition of a punishment, penal or otherwise, and the lack of judicial trial. [Misolas v. Panga, G.R. No. 83341, January 30, 1990, 181 SCRA 648, 659] xxx. R.A. No. 9335 does not possess the elements of a bill of attainder. It does not seek to inflict punishment without a judicial trial. R.A. No. 9335 merely lays down the grounds for the termination of a BIR or BOC official or employee and provides for the consequences thereof. The democratic processes are still followed and the constitutional rights of the concerned employee are amply protected. [Bureau of Customs Employees Association v. Teves - G.R. No. 181704, December 6, 2011, En Banc, Villarama] CITIZENSHIP CITIZENSHIP is membership in a political community with all its concomitant rights and responsibilities. A child born of a Filipino mother on January 17, 1973 is a natural-born Filipino citizen. A child born on January 17, 1973 of a natural-born Filipino mother who, at the time of his birth, had embraced the citizenship of her husband is a citizen of the country of his father. Children born of Filipino mothers before January 17, 1973 could have elected Philippine citizenship until the year 1994. A child born of a Filipino mother before January 17, 1973 who elects Philippine citizenship upon reaching the age of majority is a natural-born Filipino citizen. NATURALIZATION is a process by which a foreigner acquires, voluntarily or by operation of law, the citizenship of another state. DIRECT naturalization is effected by [1] individual proceedings, usually judicial, under general naturalization laws [2] by special act of the legislature, often in favor of distinguished foreigners who have rendered some notable service to the local state [3] by collective change of nationality [naturalization en masse] as a result of cession or subjugation and [5] in some cases, by adoption of orphan minors as nationals of the State where they are born. DERIVATIVE naturalization is conferred on [1] the wife of the naturalized husband [2] on the minor children of the naturalized parent and [3] on the alien woman upon marriage to a national. NOTE – does not always 35

follow as a matter of course, for it is usually made subject to stringent restrictions and conditions. Our own laws provide that an alien woman married to a Filipino shall acquire his citizenship only if she herself might be lawfully naturalized. Minor children born and residing in the Philippines shall, upon the naturalization of their fathers, be considered naturalized Filipinos. Minor children born outside the Philippines but residing in the Philippines upon the naturalization of their fathers, shall be considered naturalized Filipinos. Children of naturalized Filipinos born outside the Philippines shall be considered naturalized citizens but only upon their election of Philippine citizenship upon the attainment of the age of majority and their taking of an oath of allegiance. A naturalized Filipino may be “denaturalized” if he becomes a nominal director of a corporation, pursuant to a shareholders’ agreement, to accommodate his compadre, a foreigner, who wants to gain control of the corporation’s board of directors. The “denaturalization” of a naturalized Filipino shall have the effect of denaturalizing his wife and children only if the ground for revoking his naturalization were based on the intrinsic validity of his naturalization. The State may revoke the naturalization of a Filipino on petition of the Solicitor General. It is the State, through the Solicitor General, that may question the illegally or invalidly procured certificate of naturalization in the appropriate denaturalization proceedings. It is not a matter that may be raised by private persons in an election case involving the naturalized citizen’s descendant. [Limkaichong v. COMELEC , G.R. Nos. 178831-32, April 1, 2009] RA 9225 - Sec. 4. Derivative Citizenship. - The unmarried child, whether legitimate, illegitimate or adopted, below eighteen (18) years of age, of those who re-acquire Philippine citizenship upon effectivity of this Act shall be deemed citizens of the Philippines. CA 63 – Philippine citizenship may be lost by – [1] naturalization in a foreign country [2] express renunciation of citizenship [3] subscribing to an oath of allegiance to support the Constitution or laws of a foreign country upon attaining eighteen years of age or more, provided, however, that a Filipino may not divest himself of Philippine citizenship in any manner while the Republic of the Philippines is at war with any country [4] rendering service to or accepting commission in the armed forces of a foreign country, unless with the consent of the Republic of the Philippines, if it has a defensive pact with said foreign country, if said foreign country maintains armed forces in the Philippines with its consent, etc. [5] cancellation of the certificate of naturalization [6] having been declared a deserter in times of war, unless a plenary ardon or amnesty has been granted [7] in case of a woman, upon her marriage to a foreigner if, by virtue of the laws in force in her husband’s country, sh acquires his nationality. PHILIPPINE CITIZENSHIP may be RE-ACQUIRED by [1] naturalization, provided that the applicant possesses none of the disqualifications prescribed for naturalization. [NOTE – Bengzon v. House of Representatives] [2] repatriation of deserters, provided a woman who lost her citizenship by reason of her marriage to an alien may be repatriated in accordance with te provisions of section 2 of CA 63 after the termination of the marital status [3] direct act of Congress A soldier who renounced his Filipino citizenship and joined the US Army during the Second World War shall not be considered as having lost his or her Philippine citizenship despite his or her express or implied renunciation of the same. RA 9225 - It is hereby declared the policy of the State that all Philippine citizens of another country shall be deemed not to have lost their Philippine citizenship under the conditions of this Act. Any provision of law to the contrary notwithstanding, natural-born citizenship by reason of their naturalization as citizens of a foreign country are hereby deemed to have re-acquired Philippine citizenship upon taking the an oath of allegiance to the Republic. Natural-born citizens of the Philippines who, after the effectivity of this Act, become citizens of a foreign country shall retain their Philippine citizenship upon taking the aforesaid oath. The unmarried child, whether legitimate, illegitimate or adopted, below eighteen (18) years of age, of those who re-acquire Philippine citizenship upon effectivity of this Act shall be deemed citizens of the Philippines. Those who retain or re-acquire Philippine citizenship under this Act shall enjoy full civil and political rights and be subject to all attendant liabilities and responsibilities under existing laws of the Philippines and the following conditions: (1) Those intending to exercise their right of suffrage must meet the requirements under Section 1, Article V of the Constitution, Republic Act No. 9189, otherwise known as "The Overseas Absentee Voting Act of 2003" and other existing laws; (2) Those seeking elective public office in the Philippines shall meet the qualification for holding such public office as required by the Constitution and existing laws and, at the time of the filing of the certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath; (3) Those appointed to any public office shall subscribe and swear to an oath of allegiance to the Republic of the Philippines and its duly constituted authorities prior to their assumption of office: Provided, That they renounce their oath of allegiance to the country where they took that oath; (4) Those intending to practice their profession in 36

the Philippines shall apply with the proper authority for a license or permit to engage in such practice; and (5) That right to vote or be elected or appointed to any public office in the Philippines cannot be exercised by, or extended to, those who: (a) are candidates for or are occupying any public office in the country of which they are naturalized citizens; and/or (b) are in active service as commissioned or non-commissioned officers in the armed forces of the country which they are naturalized citizens. Republic Act No. 9225, otherwise known as the Citizenship Retention and Re-Acquisition Act, applies only to natural-born Filipino citizens. Dual citizens under RA 9225 are natural-born citizens. A dual citizen who reacquires his citizenship under RA 9225 must comply with the twin requirements of oath of allegiance to the Republic of the Philippines and renunciation of his foreign citizenship to qualify to run for elective office. [Lopez v. COMELEC, G.R. No. 182701, July 23, 2008] To qualify as a candidate in Philippine elections, Filipinos must only have one citizenship, namely, Philippine citizenship. [Jacot v. Dal, G.R. No. 179848, November 27, 2008] Reacquisition of Philippine citizenship under Republic Act No. 9225 has no automatic impact or effect on his residence/domicile, for purposes of registering as a voter or running for public office. [Japzon v. COMELEC, G.R. No. 180088, January 19, 2009] The so-called twin requirements do not apply to Americans under the jus soli rule and Filipinos under the jus sanguinis principle. They are qualified to run for public office independently of the provisions of RA 9225. [Cordora v. COMELEC, G.R. No. 176947, February 19, 2009] Considering the citizenship clause (Art. IV) of our Constitution, it is possible for the following classes of citizens of the Philippines to possess dual citizenship: (1) Those born of Filipino fathers and/or mothers in foreign countries which follow the principle of jus soli; (2) Those born in the Philippines of Filipino mothers and alien fathers if by the laws of their fathers’ country such children are citizens of that country; (3)Those who marry aliens if by the laws of the latter’s country the former are considered citizens, unless by their act or omission they are deemed to have renounced Philippine citizenship. NOTE: RA 9225 Under Philippine laws, a Filipina who marries a foreigner, whose laws make her automatically a citizen of his country, retains her Filipino citizenship unless by her act or omission she can be deemed to have renounced the same. Under Philippine laws, an alien woman who marries a natural-born Filipino automatically becomes a Filipino citizen, provided she is not disqualified to be a citizen of the Philippines. Under Philippine laws, an alien woman who marries a naturalized Filipino automatically becomes a Filipino citizen, provided she is not disqualified to be a citizen of the Philippines. Both male and female Filipino citizens shall remain Filipinos despite their alien spouses except only when they may be deemed by their act or omission to have renounced their Philippine citizenship. - Under Section 15 of CA 473, an alien woman marrying a Filipino, native-born or naturalized, becomes ipso facto a Filipina provided she is not disqualified to be a citizen of the Philippines under Section 4 of the same law. Likewise, an alien woman married to an alien who is subsequently naturalized here follows the Philippine citizenship of her husband the moment he takes his oath as Filipino citizen, provided she does not suffer from any of the disqualifications under said Section 4. [Moya Lim Yao v. CIR, 41 SCRA 292] Dual citizenship does not always result in dual allegiance. Dual citizenship is different from dual allegiance. The former arises when, as a result of the concurrent application of the different laws of two or more states, a person is simultaneously considered a national by the said states. For instance, such a situation may arise when a person whose parents are citizens of a state which adheres to the principle of jus sanguinis is born in a state which follows the doctrine of jus soli. Such a person, ipso facto and without any voluntary act on his part, is concurrently considered a citizen of both states. Dual allegiance, on the other hand, refers to the situation in which a person simultaneously owes, by some positive act, loyalty to two or more states. While dual citizenship is involuntary, dual allegiance is the result of an individual’s volition. - Petitioner was a dual citizen who consistently voted in successive elections. He was considered to have effectively elected Philippine citizenship. [Mercado v. Manzano, 307 SCRA 630] Being a legitimate child, respondent’s citizenship followed that of her father who is Chinese, unless upon reaching the age of majority, she elects Philippine citizenship. It is a settled rule that only legitimate children follow the citizenship of the father and that illegitimate children are under the parental authority of the mother and follow her nationality. [Go, Sr. v. Ramos, G.R. Nos. 167569-70 and 171946, September 4, 2009, 598 SCRA 266, 294-295] An illegitimate child of Filipina need not perform any act to confer upon him all the rights and privileges attached to citizens of the Philippines; he automatically becomes a citizen himself. [Id. at 295] But in the case of respondent, for her to be considered a Filipino citizen, she must have validly elected Philippine citizenship upon reaching the age of majority. [Republic of the Philippines v. Sagun - G.R. No. 187567, February 15, 2012, First Division, Villarama] 37

Based on the foregoing, the statutory formalities of electing Philippine citizenship are: (1) a statement of election under oath; (2) an oath of allegiance to the Constitution and Government of the Philippines; and (3) registration of the statement of election and of the oath with the nearest civil registry. [Ma v. Fernandez, Jr., G.R. No. 183133, July 26, 2010, 625 SCRA 566, 577] Furthermore, no election of Philippine citizenship shall be accepted for registration under C.A. No. 625 unless the party exercising the right of election has complied with the requirements of the Alien Registration Act of 1950. In other words, he should first be required to register as an alien. [Ronaldo P. Ledesma, AN OUTLINE OF PHILIPPINE IMMIGRATION AND CITIZENSHIP LAWS, Vol. I, 2006 ed., pp. 526] Pertinently, the person electing Philippine citizenship is required to file a petition with the Commission of Immigration and Deportation (now Bureau of Immigration) for the cancellation of his alien certificate of registration based on his aforesaid election of Philippine citizenship and said Office will initially decide, based on the evidence presented the validity or invalidity of said election. [Id. at 527, citing Memorandum Order dated August 18, 1956 of the CID] Afterwards, the same is elevated to the Ministry (now Department) of Justice for final determination and review. [Id., citing DOJ Opinion No. 182 dated August 19, 1982] It should be stressed that there is no specific statutory or procedural rule which authorizes the direct filing of a petition for declaration of election of Philippine citizenship before the courts. The special proceeding provided under Section 2, Rule 108 of the Rules of Court on Cancellation or Correction of Entries in the Civil Registry, merely allows any interested party to file an action for cancellation or correction of entry in the civil registry, i.e., election, loss and recovery of citizenship, which is not the relief prayed for by the respondent. [Republic of the Philippines v. Sagun - G.R. No. 187567, February 15, 2012, First Division, Villarama] Based on the foregoing circumstances, respondent clearly failed to comply with the procedural requirements for a valid and effective election of Philippine citizenship. Respondent cannot assert that the exercise of suffrage and the participation in election exercises constitutes a positive act of election of Philippine citizenship since the law specifically lays down the requirements for acquisition of citizenship by election. The mere exercise of suffrage, continuous and uninterrupted stay in the Philippines, and other similar acts showing exercise of Philippine citizenship cannot take the place of election of Philippine citizenship. Hence, respondent cannot now be allowed to seek the intervention of the court to confer upon her Philippine citizenship when clearly she has failed to validly elect Philippine citizenship. As we held in Ching, [Id. at 12] the prescribed procedure in electing Philippine citizenship is certainly not a tedious and painstaking process. All that is required of the elector is to execute an affidavit of election of Philippine citizenship and, thereafter, file the same with the nearest civil registry. Having failed to comply with the foregoing requirements, respondent’s petition before the trial court must be denied. [Republic of the Philippines v. Sagun - G.R. No. 187567, February 15, 2012, First Division, Villarama] FAILURE TO RENOUNCE FOREIGN CITIZENSHIP in accordance with the exact tenor of Section 5(2) of Republic Act (R.A.) No. 9225 renders a dual citizen ineligible to run for and thus hold any elective public office. xxx. The foreign citizenship must be formally rejected through an affidavit duly sworn before an officer authorized to administer oath. We have stressed in Advocates and Adherents of Social Justice for School Teachers and Allied Workers (AASJS) Member v. Datumanong [G.R. No. 160869, May 11, 2007, 523 SCRA 108] that the framers of R.A. No. 9225 did not intend the law to concern itself with the actual status of the other citizenship. [Sobejana-Condon v. Commission on Elections - G.R. No. 198742, August 10, 2012, En Banc, Reyes] The use of a foreign passport after renouncing one’s foreign citizenship is a positive and voluntary act of one’s representation as to one’s nationality; it does not divest Filipino citizenship regained by repatriation but it recants the oath of renunciation required to qualify one to run for elective office [under RA 9225]. [Maquiling v. COMELEC, G.R. No. 195649, April 16, 2013; see also Reyes v. COMELEC, G.R. No. 207264, June 25, 2013] SUFFRAGE Section 1. Suffrage may be exercised by all citizens of the Philippines, not otherwise disqualified by law, who are at least eighteen years of age, and who shall have resided in the Philippines for at least one year and in the place wherein they propose to vote, for at least six months immediately preceding the election. No literacy, property, or other substantive requirement shall be imposed on the exercise of suffrage. The following shall be disqualified from voting: [a] Any person who has been sentenced by final judgment to suffer imprisonment for not less than one year, such disability not having been removed by plenary pardon or granted amnesty: Provided, however, That any person disqualified to vote under this paragraph shall automatically reacquire the right to vote upon expiration of five years after service of sentence. [b] Any person who has been adjudged by final judgment by competent court or tribunal of having committed any crime involving disloyalty to the duly constituted government such as rebellion, 38

sedition, violation of the anti-subversion and firearms laws, or any crime against national security, unless restored to his full civil and political rights in accordance with law: Provided, That he shall regain his right to vote automatically upon expiration of five years after service of sentence. [c] Insane or incompetent persons as declared by competent authority. [Omnibus Election Code –Section 118] Dual citizens, under RA 9225, may exercise the right of suffrage under the provisions of RA 9189, the Overseas Absentee Voting Act of 2003. [Nicolas-Lewis v. COMELEC, G.R. No. 162759, August 4, 2006] Even their children, who acquire derivative citizenship when they were minors, may vote, under the same conditions. By law, however, the right of dual citizens who vote as absentee voters pertains only to the election of national officials, specifically: the president, the vice-president, the senators, and party-list representatives. [Velasco v. COMELEC, G.R. No. 180051, December 24, 2008] Section 2. The Congress shall provide a system for securing the secrecy and sanctity of the ballot as well as a system for absentee voting by qualified Filipinos abroad. The Congress shall also design a procedure for the disabled and the illiterates to vote without the assistance of other persons. Until then, they shall be allowed to vote under existing laws and such rules as the Commission on Elections may promulgate to protect the secrecy of the ballot. Section 2 is to be considered as an exception to the “six months” residence requirement in Section 1. xxx. [2] Section 5(d) of R.A. No. 9189 specifically disqualifies an immigrant or permanent resident who is “recognized as such in the host country” because immigration or permanent residence in another country implies renunciation of one's residence in his country of origin. However, same Section allows an immigrant and permanent resident abroad to register as voter for as long as he/she executes an affidavit to show that he/she has not abandoned his domicile in pursuance of the constitutional intent expressed in Sections 1 and 2 of Article V that “all citizens of the Philippines not otherwise disqualified by law” must be entitled to exercise the right of suffrage and, that Congress must establish a system for absentee voting; for otherwise, if actual, physical residence in the Philippines is required, there is no sense for the framers of the Constitution to mandate Congress to establish a system for absentee voting. [Note: undertaking to return after 3 years] [Macalintal v. COMELEC, G.R. 157013, July 10, 2003]

39