BAR2012Updates (ConstLaw) {Recoletos}

NOTES, UPDATES AND TEASERS

* CONSTITUTIONAL L AW (Bar Review 2012)

RENE B. GOROSPE Recoletos Law Center OUTLINE A. The Fundamental Powers.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 B. Bill of Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 C. Due Process. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 D. Equal Protection.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 E. Searches and Seizures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 F. Privacy of Communications.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 G. Freedom of Expression. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 H. Freedom of Religion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 I. Freedom of Movement.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 J. Right to Information.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 K. Right of Association. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80 L. Eminent Domain. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81 M. Contract Clause. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 N. Poverty and Legal Protection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90 O. Rights of Suspects. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90 P. Rights of the Accused. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94 Q. Writs of Habeas Corpus and Amparo. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99 R. Self-Incrimination Clause. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109 S. Excessive Fines, Cruel and Inhuman Punishments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110 Recoletos Law. .Center T. Double Jeopardy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110

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U. Ex Post Facto Laws and Bills of Attainder. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114 *

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Caveat: While most of the materials here are taken from cases, caution should be exercised in looking at the notes as some are personal views designed to make the principle or rule discussed more interesting through side comments, musings and other asides. Utmost discernment, discipline and discretion are thus advised to avoid any misunderstandings. Attempt had been made to carefully proofread everythingvis-à-vis but it almost always happens that Of despite best efforts errors will still crop A Library Of Liberties An Arsenal Arms up. Well, as Justice Kennedy observed in his dissenting opinion in Groh v. Ramirez, 540 U.S. 551 (2004), at 568: “We all tend toward myopia when looking for our own errors. Every lawyer and every judge can recite examples of documents that they wrote, checked, and doublechecked, but that still contained glaring errors.” Murphy’s Law, anyone?

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Constitutional Law, in the context of these notes, refers only to the Bill of Rights. Accordingly, on some other aspects of constitutional law as a broad term and expansive subject, resort must be had to other sources and materials. These notes are to be taken as a quick reference to general ideas and recent decisions which light up and enliven the study of the subject. They presuppose that one has at least done his or her homework through the years and these are just reminders of what were, ticklers of recent application of rules and principles, and an invitation to an exploration of what may lie beyond. The study of law is best had if enjoyed. These notes are intended to be both informative and entertaining. Reviewees are also entitled to fun even while preparing to take on the Bar exams.1 As had been writ: “A judicial decision does not have to be a bore.”1 Neither must a Bar review material be. It need not be a bland presentation of what has been. It might as well pick brains and prick some civic conscience in preparation for eventual practice as a responsible and respectable particle of sovereignty. So, here’s to humoring the Bar exams.2 There’s nothing as unnerving as approaching a problem from 1

In regard to the need for an examination in the first place, take note of what the Court said in Antolin v. Domondon, 623 SCRA 163 (2010): “Examinations have a two-fold purpose. First, they are summative; examinations are intended to assess and record what and how much the students have learned. Second, and perhaps more importantly, they are formative; examinations are intended to be part and parcel of the learning process. In a perfect system, they are tools for learning.” Incidentally, “[t]he examination questions were of the multiple choice type, where each question was followed by four possible answers to choose from. The examinee was required to indicate his or her answer by shading in pencil one of four small ‘circles’ corresponding to each choice.” (n. 1) Sounds familiar? Does it ring a bell? 1

Francisco v. Permskul, 173 SCRA 324 (1989)

2

The justices themselves are not beyond humoring the study of law with all its quirks and esoteric twists and turns, as could be seen by their occasional references to matters more mundane as a manner of making the legal aspects easier to grasp and appreciate. In Camid v. Office of the President, 448 SCRA 711 (2005), the Court spoke of what might have been memories about a movie from years, and years, and years ago. The Court introduced the case in this wise: “This Petition for Certiorari presents this Court with the prospect of our own Brigadoon – the municipality of Andong, Lanao del Sur which like its counterpart in filmdom, is a town that is not supposed to exist yet is anyway insisted by some as actually alive and thriving. Yet unlike in the movies, there is nothing mystical, ghostly or anything even remotely charming about the purported existence of Andong.” So where, when and whatever is Brigadoon? The Court explained that it is a 1954 film based on the well-known eponymous Broadway musical by Alan Jay Lerner and Frederick Loewe. The plot pertains to a magical Scottish town touted to appear once every hundred years on some otherworldly plain according to legend. Parenthetically, and by way of an excursive exercise in the tiring and tedious travails of reviewing, it might also be helpful and reassuring to note that writing decisions does not stop Justices from humming a tune or simply warbling a song into their opinions, decisions, as what the Court did in Pamatong v. Commission on Elections, 427 SCRA 96 (2004), where we find this line: “Owing to the superior interest in ensuring a credible and orderly election, the State could exclude nuisance candidates and need not indulge in, as the song goes, ‘their trips to the moon on gossamer wings.’” The line, from the song, “Just One of Those Things,” must have been swaying in Justice Tinga’s mind or the melody wafting in the air as he wrote the ponencia in that case.

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And, you might as well take note of Palaganas v. People, 501 SCRA 533 (2006), where the Court opened up with lines from “My Way” to say that it was not the first time that that particular song had triggered violent behavior resulting in people coming to blows! (The Court went on to give appropriate credits – that the music is by Paul Anka and that the song was popularized by Frank Sinatra. Now, even decisions could be sources of musical trivia.) As for the apostles of Bacchus, one might as well pay heed to what the Court said in People v. Glino, 539 SCRA 432 (2007): “BEWARE of drunk passengers. They pose danger to life and limb. Merely talking to them or telling them to sit properly can be fatal, . . .”

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The U.S. Supreme Court is also not beyond recognizing the message of songs, particularly “Imagine” by John Lennon. The Court reproduced the entire lyrics in Pleasant Grove City v. Summum, 555 U.S. ___ (2009), noting: “Some observers may ‘imagine’ the musical contributions that John Lennon would have made if he had not been killed. Others may think of the lyrics of the Lennon song that obviously inspired the [Greco-Roman] mosaic [of the word ‘Imagine’ that was donated to New York City’s Central Park in memory of John Lennon] and may ‘imagine’ a world without religion, countries, possessions, greed, or hunger.”

Of Liberties An–Arsenal Of Arms Or, they could as wellAbeLibrary into literature – words melodiousvis-à-vis without the tunes as when the Court, in pointing out the importance of affording protection to one’s employment, noted: “As Shylock declared, ‘you take my life, when you do take the means whereby I live.’ (Shakespeare, The Merchant of Venice)” (n. 26, Anonymous v. Radam, 541 SCRA 12 [2007]) In Orocio v. Roxas, 562 SCRA 347 (2008), the Court opened with lines from Sharepeare’s Hamlet, Act III, SceneI, Lines 56-72 – “To be, or not to be: that is the question. . . .” (Well, what are you: to be, or not to be, . . . a lawyer?)

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a perspective of trepidation. March on with confidence, head up high, a smile on your face and faith in yourself. The Bar exercise is just a good opportunity to prove and improve yourself. It is not an adversary but an ally, and even if it were, it is one that you can persuade and convince to become a lifelong friend.

THE FUNDAMENTAL POWERS AND THE BILL OF RIGHTS Governance is the art and science of carefully balancing competing needs, concerns, wants, desiderata and values of society, all demanding acceptance and preeminence. Insofar as the government and the people are concerned, their interests may every now and then clash or compete for ascendancy, for which a careful weighing of various considerations has to be done to ensure that the demands of authority do not lead to slavery and the claims of liberty do not end up in anarchy.3 Or, in the words of a more recent case, “[o]nce again, the Court is faced with an age-old but persistently modern problem. How does the Constitution of a free people combine the degree of liberty, without which, law becomes tyranny, with the degree of law, without which, liberty becomes license?”4 Months later, the Court once more declared: “The true role of Constitutional Law is to effect an equilibrium between authority and liberty so that rights are exercised within the framework of the law and the laws are enacted with due deference to rights.”5 On the side of authority, you have the inherent and fundamental powers of the government – police power, eminent domain, and taxation – powers by which its goals may be achieved and its will enforced and implemented. On the other end, you have the guarantees and safeguards found in the Bill of Rights. Being in the Court does not also have to lead to loss of memory about stories told and learned during one’s salad days. Who can forget, for instance, memories of the transformation of the “ugly duckling”? “This Motion for Partial Judgment and to Dismiss Petition is truly an odd duckling of a pleading, which unfortunately did not blossom into a swan but from it instead emerged an even uglier duck – the 6 September 2002 Order, . . .” (Republic v. Nolasco, 457 SCRA 400 [2005]) In the same way, taking the Bar examinations need not make you a different person from what you really are. You can study and prepare for – and pass – the Bar while enjoying the experience and the opportunity which you may only have to go through but once in your life. Savor the moment as you may never pass this way again. But if you were more concerned with food – something never far away when reviewing for the Bar exams – note the exchange between Chief Justice Roberts and Justice Scalia in Washington State Grange v. Washington State Republican Party, 552 U.S. ___(18 March 2008), a case involving a law that allegedly infringed the associational rights of political parties. The former, in support of his concurring opinion said: “Assuming the ballot is so designed, voters would not regard the listed candidates as ‘party’ candidates, any more than someone saying ‘I like Campbell’s soup’ would be understood to be associated with Campbell’s.” In response, the latter in his dissent wrote: “[T]here is simply no comparison between statements of ‘preference’ for an expressive association and statements of ‘preference’ for soup. The robust First Amendment freedom to associate belongs only to groups ‘engage[d] in “expressive association,”’ Dale, 530 U.S., at 648. The Campbell Soup Company does not exist to promote a message, and ‘there is only minimal constitutional protection of the freedom of commercial association, . . .’” Furthermore, he said: “If we must speak in terms of soup, Washington’s law is like a law that encourages Oscar the Grouch (Sesame Street’s famed bad-taste resident of a garbage can) to state a ‘preference’ for Campbell’s at every point of sale, while barring the soup company from disavowing his endorsement, or indeed using its name at all, in those same crucial locations. Reserving the most critical communications forum for statements of ‘preference’ by a potentially distasteful speaker alters public perceptions of the entity that is ‘preferred’; and when this privileged connection undermines not a company’s ability to identify and promote soup but an expressive association’s ability to identify and promote its message and its standard bearer, the State treads on the constitutionally protected freedom of association.” Ahh, food, politics and garbage characters.

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Or, if you are fond of the art of cooking – and preparing the meat for that purpose – to be better expressed in a menu of legal issues, how about this line from Chief Justice Puno’s dissent in Neri v. Senate Committee on Accountability of Public Officers and Investigations, 549 SCRA 77 (2008)? “A holistic view of the doctrine of executive privilege will serve as a hermeneutic scalpel to excise the fat of information that does not fall within the ambit of the privilege and to preserve only the confidentiality of the lean meat of information it protects in the particular setting of the case at bar.” (Choice cuts, anyone?) 3

A Library Liberties See Calalang v. Williams, 70 Phil. Of 726 (1940)

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David v. Macapagal-Arroyo, 489 SCRA 160 (2006), referencing the writings of the Greek philosopher, Heraclitus of Ephesus, 540-480 B.C., who propounded universal impermanence and that all things, notably opposites are interrelated. 5

Metropolitan Manila Development Authority v. Viron Transportation Co., Inc., 530 SCRA 341 (2007)

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And, in this regard the Court has held that “[i]n the complex but exquisite scheme laid down by the Constitution, the Bill of Rights occupies a position of primacy, way above the articles on governmental power.”6 And in this interplay between power and authority, on one hand, and liberty and freedom, on the other, note must be taken of the fact that just like anything else, values, concepts and weights change through time. What may have been recognized as outside the domain of State regulation in the past would no longer be so immune from governmental interference in later years.7 As was said in one case, “What was ‘robbery’ in 1874 is now called ‘social justice.’”8 Or, as stated in elsewhere, “Social justice is not based on rigid formulas set in stone. It has to allow for changing times and circumstances.”9 A.

THE FUNDAMENTAL POWERS

These fundamental powers are inherent in the national government, exercised by the legislature, and are only bestowed upon others, like the local government units, as a result of delegation. In the exercise of police power, there must be compliance with the requirements of legitimate ends being accomplished through legitimate means.10 This power is the most pervasive, illimitable and plenary power affecting liberty and property of individuals for the advancement of the common good. It essentially embodies the right of the State to enact laws for the purpose of promoting the public welfare by restraining and regulating liberty and the use of property. Its also been said that “the test of constitutionality of a police power measure is limited to an inquiry on whether the restriction imposed on constitutional rights is reasonable, and not whether it imposes a restriction on those rights,” and that it “does not rely upon the existence of definitive studies to support its use. Indeed, no requirement exists that the exercise of police power must first be conclusively justified by research. . . . Scientific certainty and conclusiveness, though desirable, may not be demanded in every situation. Otherwise, no government will be able to act in situations demanding the exercise of its residual powers because it will be tied up conducting studies.”11 As for the power of condemnation, the Constitution already provides the allowable standards for its exercise – public use and just compensation.12 But then note must be taken of the expanded meaning of the term “public use” – “the concept of public use is not limited to traditional purposes. Here as elsewhere the idea that ‘public use’ is strictly limited to clear cases of “use by the public” has been discarded.”13 And case law has recently come up with newer rules relative to the exercise of this power. Taxation, of course, must not be exercised in an unreasonable, oppressive and confiscatory manner.14 Or, in the language of Philippine Health Care Providers, Inc. v. Commissioner of Internal Revenue, 600

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People v. Rapeza, 520 SCRA 596 (2007), penned by Justice Tinga. This is a reiteration of his earlier ponencia in People v. Tudtud, 412 SCRA 142 (2003), where it was held: “The Bill of Rights is the bedrock of constitutional government. If people are stripped naked of their rights as human beings, democracy cannot survive and government becomes meaningless. This explains why the Bill of Rights, contained as it is in Article III of the Constitution, occupies a position of primacy in the fundamental law way above the articles on governmental power.”

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See People v. Pomar, 46 Phil. 440 (1924)

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Bengzon v. Drilon, 208 SCRA 133 (1992)

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Agabon v. National Labor Relations Commission, 442 SCRA 573 (2004)

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Ynot v. Intermediate Appellate Court, 148 SCRA 659 (1987)

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A Library Of Liberties An(2006) Arsenal Mirasol v. Department of Public Works and Highways,vis-à-vis 490 SCRA 318

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Article III, §9

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Heirs of Juancho Ardona v. Reyes, 125 SCRA 220 (1983) See Reyes v. Almanzor, 196 SCRA 322 (1991)

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SCRA 413 (2009), “[l]egitimate enterprises enjoy the constitutional protection not to be taxed out of existence.” Also, it must not be forgotten that the exercise of the power of taxation constitutes a deprivation of property under the due process clause, and the taxpayer’s right to due process is violated when arbitrary or oppressive methods are used in assessing and collecting taxes.15 Further, in regard to the delegation by the Constitution itself of the taxing power to the Local Government Units, Congress is not stripped of its power to exempt certain entities from local taxation.16 1. Social Justice Society v. Atienza, Jr., 517 SCRA 657 (2007) If an ordinance says something to be done, then the mayor can only comply and implement it. Here the City Council of Manila passed an ordinance reclassifying an area where the oil depot of the big petroleum companies was located from industrial to commercial. That meant that the oil terminals had to go. A timetable was provided but after some time the oil depot was still there. The Court held that the mayor had no discretion but comply with the ordinance. It’s well within the police power of the city. The objective of the ordinance is to protect the residents from the catastrophic devastation that will surely occur in case of a terrorist attack on the Pandacan Terminals. On motion for reconsideration, the Court stood pat on its earlier position. “The ordinance was intended to safeguard the rights to life, security and safety of all the inhabitants of Manila and not just of a particular class. The depot is perceived, rightly or wrongly, as a representation of western interests which means that it is a terrorist target. As long as there is such a target in their midst, the residents of Manila are not safe. It therefore became necessary to remove these terminals to dissipate the threat.” With regard to zoning ordinances, the Court expounded: “A zoning ordinance is defined as a local city or municipal legislation which logically arranges, prescribes, defines and apportions a given political subdivision into specific land uses as present and future projection of needs. As a result of the zoning, the continued operation of the businesses of the oil companies in their present location will no longer be permitted. The power to establish zones for industrial, commercial and residential uses is derived from the police power itself and is exercised for the protection and benefit of the residents of a locality.” In coming up with a new zoning ordinance, would that not result in some “taking” for which there should be compensation? “In the exercise of police power, there is a limitation on or restriction of property interests to promote public welfare which involves no compensable taking.” Thus, “[t]he restriction imposed to protect lives, public health and safety from danger is not a taking. It is merely the prohibition or abatement of a noxious use which interferes with paramount rights of the public.” Nobody else acquires the use or interest therein, hence there is no compensable taking. 2. Pharmaceutical and Health Care Association of Center the Philippines v. Duque III, 535 SCRA 265 Recoletos Law (2007)

Bar 2012 “Health is a legitimate subject matter forReview regulation by the DOH (and certain other administrative agencies) in exercise of police powers delegated to it. The sheer span of jurisprudence on that matter precludes the need to further discuss it. However, health information, particularly advertising materials on apparently non-toxic products like breastmilk substitutes and supplements, is a relatively new area for regulation by the DOH,” thus declared the Court. Accordingly, “the DOH's power under the Milk Code to control information regarding breastmilk vis-a-vis breastmilk substitutes is not absolute as the power to control does not encompass the powervis-à-vis to absolutely prohibit the marketing, and A Library Of Liberties An Arsenal Ofadvertising, Arms

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Yamane v. BA Lepanto Condominium Corporation, 474 SCRA 258 (2005)

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City Government of Quezon City v. Bayan Telecommunications, Inc., 484 SCRA 169 (2006)

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promotion of breastmilk substitutes.” Implementing rules and regulations imposing labeling requirements and limitations such as that there be a statement that there is no substitute to breastmilk, and that there be a statement that powdered infant formula may contain pathogenic microorganisms and must be prepared and used appropriately, as well as a prohibition against health and nutrition claims of increased emotional and intellectual abilities of the infant and young child are consistent with the Milk Code. “These provisions of the Milk Code expressly forbid information that would imply or create a belief that there is any milk product equivalent to breastmilk or which is humanized or maternalized, as such information would be inconsistent with the superiority of breastfeeding.” Correct information as to infant feeding and nutrition is infused with public interest and welfare. But to what extent may the Department of Health, in promoting the health and nutritious needs of children, regulate the businesses which promote breastmilk substitutes as acceptable alternative to mother’s milk? In this case, the Court declared that the DOH, in imposing an absolute prohibition on advertising, promotion, and marketing, went beyond its authority since the same was not within the provisions of the Milk Code itself. 3. Metropolitan Manila Development Authority v. Viron Transportation Co., Inc., 530 SCRA 341 (2007) Some change but still remain the same – oxymorons, anyone? Here the Court noted that the deteriorating traffic conditions way back in 1969 “have remained unchecked and have reverberated to this day. Traffic jams continue to clog the streets of Metro Manila, bringing vehicles to a standstill at main road arteries during rush hour traffic and sapping people’s energies and patience in the process.” Accordingly, the ever-pressing need to address the problem. This took the form of E.O. 179, “Providing for the Establishment of Greater MANILA MASS TRANSPORT SYSTEM,” designating MMDA as implementing agency, with mandate to eliminate bus terminals along major thoroughfares of Metro Manila, particularly EDSA, and a provision for mass transport terminal facilities. Is E.O. 179 valid? Unfortunately, no. “The authority of the President to order the implementation of the Project notwithstanding, the designation of the MMDA as the implementing agency for the Project may not be sustained. It is ultra vires, there being no legal basis therefor.” It is the DOTC, and not the MMDA, which is authorized to establish and implement such a project. It is simply that the MMDA is not vested with police power. What about if the DOTC instead of the MMDA was designated as the implementing arm? Still, the Court said that it failed to see how the prohibition against the existence of terminals can be considered a reasonable necessity to ease traffic congestion in the metropolis. On the contrary, the elimination of the bus terminals brings forth the distinct possibility the equally harrowing reality of traffic Recoletos Law and Center congestion in the common parking areas, a case of transference from one site to another. What then? Bar “Less intrusive measures such as curbing theReview proliferation2012 of ‘colorum’ buses, vans and taxis entering Metro Manila and using the streets for parking and passenger pick-up points, as respondents suggest, might even be more effective in easing the traffic situation. So would the strict enforcement of traffic rules and the removal of obstructions from major thoroughfares.” In short, “the elimination of the terminals does not satisfy the standards of a valid police power measure.”

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4. St. Luke’s Medical Center Employee’s Association-AFW (SLMCEA-AFW) v. National Labor A Commission, Library Of Liberties Relations 517 SCRAvis-à-vis 677 (2007)An Arsenal Of Arms Here, the guarantee of the right to security of tenure came into conflict with a law subsequently passed requiring a qualification that was not present when the employee started working. Santos, an

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Associate in Radiologic Technology graduate, got employed at St. Luke’s Hospital in 1984 as an X-Ray Technician. Then came R.A. 7431 (Radiologic Technology Act of 1992) which requires that no person shall practice or offer to practice as a radiology and/or x-ray technologist without having obtained the proper certificate of registration from the Board of Radiologic Technology. St. Luke’s notified all radiologic practitioners to comply with RA 7431. Santos failed to comply and eventually lost her job. The Court held: “While the right of workers to security of tenure is guaranteed by the Constitution, its exercise may be reasonably regulated pursuant to the police power of the State to safeguard health, morals, peace, education, order, safety, and the general welfare of the people. Consequently, persons who desire to engage in the learned professions requiring scientific or technical knowledge may be required to take an examination as a prerequisite to engaging in their chosen careers.” The rationale for the regulation of medicine applies as well in the field of radiologic and x-ray technology.17 5. Carlos Superdrug Corp. v. Department of Social Welfare and Development (DSWD), 526 SCRA 130 (2007) Speaking of retirees, can the State, in promoting the health and welfare of a special group of citizens, impose upon private establishments the burden of partly subsidizing a government program? Yes, the Court declared, upholding in the process the constitutionality of §4(a) of the Expanded Senior Citizens Act of 2003 (R.A. No. 9257, amending R.A. 7432), which considered the twenty percent (20%) discount given by drugstores to senior citizens as tax deductions and no longer as tax credits. The Court acknowledged that treating the discount as tax deduction does not offer full reimbursement of the senior citizen discount, thus, not meeting the definition of just compensation.18 Nevertheless, it could be justified as a police power measure. “The Senior Citizens Act was enacted primarily to maximize the contribution of senior citizens to nation-building, and to grant benefits and privileges to them for their improvement and well-being as the State considers them an integral part of our society. The law is a legitimate exercise of police power which, similar to the power of eminent domain, has general welfare for its object.” Accordingly, “[w]hen the conditions so demand as determined by the legislature, property rights must bow to the primacy of police power because property rights, though sheltered by due process, must yield to general welfare.” 6. Guadines v.Sandiganbayan, 650 SCRA 422 (2011) This case involves a prosecution for violation of the Anti-Graft and Corrupt Practices Act, the petitioner having supplied illegally cut lumber which were subsequently confiscated after she delivered them for the repair of a public bridge, thus defrauding the government. It is her defense that she already complied with her undertaking so she should not be held liable for what happened after that. The Court did not agree, for “[b]asic is the rule that provisions of existing laws and regulations are read into and Recoletos Law Center form an integral part of contracts, moreso in the case of government contracts. Verily, all contracts, Bar to Review 2012of the State. Being an inherent attribute including Government contracts, are subject the police power 17

Cf. Garcia, Jr. v. Salvador, 518 SCRA 568 (2007). In this case, an employee who was seeking regularization had to undergo a medical examination. She was misdiagnosed as suffering from Hepatitis B. When she informed her father, the latter suffered a heart attack. The employee also got separated from her employment. Subsequent tests disclosed the error. The employee was then rehired. Nonetheless, she and her father sued the medical technologist for gross negligence. The Court found for them, awarding them P =50,000 as moral damages, P =50,000 as exemplary damages, and P =25,000 as attorney’s fees.

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Lesson to be learned? UnderstandOf properly the question for a misappreciation or misdiagnosis A Library Liberties vis-à-vis An Arsenal Of Armsof the problem is a sure avenue to a wrong answer. Right answers start with correct premises. 18

“Just compensation is defined as the full and fair equivalent of the property taken from its owner by the expropriator. The measure is not the taker’s gain but the owner’s loss. The word just is used to intensify the meaning of the word compensation, and to convey the idea that the equivalent to be rendered for the property to be taken shall be real, substantial, full and ample.” (Carlos Superdrug Corp.)

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of sovereignty, such power is deemed incorporated into the laws of the land, which are part of all contracts, thereby qualifying the obligations arising therefrom. Thus, it is an implied condition in the subject contract for the procurement of materials needed in the repair and construction of the Navotas Bridge that petitioner as private contractor would comply with pertinent forestry laws and regulations on the cutting and gathering of the lumber she undertook to supply the provincial government.” 7. Pilipinas Shell Petroleum Corporation v. Commissioner of Internal Revenue, 541 SCRA 316 (2007) Can a taxpayer, who obtained in good faith and for value Tax Credit Certificates (TCCs), and after having paid its tax liabilities by means of TCCs, be subsequently made to pay the same amounts again if it turns out that the said TCCs had been fraudulently issued and transferred? The Court said no. “TCCs are immediately valid and effective after their issuance.” Accordingly, “a tax payment through a TCC cannot be both effective when made and dependent on a future event for its effectivity. Our system of laws and procedures abhors ambiguity.” In short, “[t]he transferee in good faith and for value may not be unjustly prejudiced by the fraud committed by the claimant or transferor in the procurement or issuance of the TCC. . . . It is not only unjust but well-nigh violative of the constitutional right not to be deprived of one’s property without due process of law. Thus, a re-assessment of tax liabilities previously paid through TCCs by a transferee in good faith and for value is utterly confiscatory, more so when surcharges and interests are likewise assessed.” Then, harking back to the traditional attribution of destructive power to the taxing prerogative, the Court said: “The power of taxation is sometimes called also the power to destroy. Therefore it should be exercised with caution to minimize injury to the proprietary rights of a taxpayer. It must be exercised fairly, equally and uniformly, lest the tax collector kill the ‘hen that lays the golden egg.’” 8. Chamber of Real Estate and Builders’ Inc. v. Romulo, 614 SCRA 605 (2010) In this case, even as the Court upheld the validity of the assailed tax measures, it came up with some interesting tidbits about the nature of the taxing power and the limitations attendant to it. It referred, for instance, to the shopworn reality that “[t]axes are the lifeblood of the government. Without taxes, the government can neither exist nor endure. The exercise of taxing power derives its source from the very existence of the State whose social contract with its citizens obliges it to promote public interest and the common good. Taxation is an inherent attribute of sovereignty. It is a power that is purely legislative. Essentially, this means that in the legislature primarily lies the discretion to determine the nature (kind), object (purpose), extent (rate), coverage (subjects) and situs (place) of taxation. It has the authority to prescribe a certain tax at a specific rate for a particular public purpose on persons or things within its jurisdiction. In other words, the legislature wields Law the power to define what tax shall be imposed, why Recoletos Center it should be imposed, how much tax shall be imposed, against whom (or what) it shall be imposed and Bar Review 2012 where it shall be imposed.” Then, while the Court recognized that, as a general rule, “the power to tax is plenary and unlimited in its range, acknowledging in its very nature no limits, so that the principal check against its abuse is to be found only in the responsibility of the legislature (which imposes the tax) to its constituency who are to pay it,” the same is circumscribed by constitutional limitations. “The constitutional safeguard of due process is embodied in the fiat ‘[no] person shall be deprived of life, liberty or property without due A Library Of Liberties An Arsenal Of Armsin appropriate cases, process of law.’ . . . [T]he due process clause mayvis-à-vis properly be invoked to invalidate, a revenue measure when it amounts to a confiscation of property. [Nevertheless, t]here must be a factual foundation to such an unconstitutional taint. This merely adheres to the authoritative doctrine that, where

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the due process clause is invoked, considering that it is not a fixed rule but rather a broad standard, there is a need for proof of such persuasive character.” Also, “an income tax is arbitrary and confiscatory if it taxes capital because capital is not income.” In other words, it is income, not capital, which is subject to tax. In the case under consideration, however, the subject tax – minimum corporate income tax (MCIT) – is not a tax on capital but on income. 9. Planters Products, Inc. v. Fertiphil Corporation, 548 SCRA 485 (2008) LOI No. 1465, issued by then President Marcos, imposed a Capital Recovery Component (CRC) of P =10.00 on each bag of fertilizer sold by fertilizer importers and mother companies in the Philippines, which amount was to be paid to Planters Products, Inc. until it shall have become viable. Fertiphil was one of those who had to pay the CRC, but after the EDSA Revolution in 1986 it stopped paying the same. Instead it filed suit to recover what it had paid. Can it recover? Or, was the imposition justified by either the power ot taxation or police power. The Court said neither police power nor taxation could be validly invoked to justify LOI 1465. The refund must have to be made. “The P10 levy under LOI No. 1465 is too excessive to serve a mere regulatory purpose. The levy, no doubt, was a big burden on the seller or the ultimate consumer.” Also, “[a] plain reading of the LOI also supports the conclusion that the levy was for revenue generation.” In this regard, “[a]n inherent limitation on the power of taxation is public purpose. Taxes are exacted only for a public purpose. They cannot be used for purely private purposes or for the exclusive benefit of private persons. The reason for this is simple. The power to tax exists for the general welfare; hence, implicit in its power is the limitation that it should be used only for a public purpose. It would be a robbery for the State to tax its citizens and use the funds generated for a private purpose.” Further, the Court added: “When a tax law is only a mask to exact funds from the public when its true intent is to give undue benefit and advantage to a private enterprise, that law will not satisfy the requirement of ‘public purpose.’” Then, for a final dig at the measure itself, the Court declared: “We find it utterly repulsive that a tax law would expressly name a private company as the ultimate beneficiary of the taxes to be levied from the public. This is a clear case of crony capitalism.” LOI 1465 could not also be justified as a police power measure because it did not promote public interest but simply that of one ailing private corporation.

B. BILL OF RIGHTS Taking up the cudgels for liberty are the guarantees contained basically in the Bill of Rights. As the Court observed in People v. Legaspi, 331 SCRA 95 (2000), the Bill of Rights is the mechanism for the delicate balance between governmental power and individual liberty, without which man is stripped of Center his humanity and society becomes Recoletos a putrid dump ofLaw lost lives. “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the Review reach of majorities and officials and toBar establish them as2012 legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”19

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The bundle of freedoms and liberties guaranteed by the Bill of Rights is essentially directed against the State and its agencies and instrumentalities only. It could not be invoked against private persons.20 vis-à-viscannot An Arsenal Of Arms Nevertheless, even A asLibrary it is true Of thatLiberties “[t]he Constitution control such [private] prejudices, but 19

West Virginia State Board of Education v. Barnette, 319 US 624 (1943)

20

See People v. Marti, 193 SCRA 57 (1991) and Serrano v. NLRC, 323 SCRA 445 (2000).

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neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.”21 And, even as there might be no constitution following a revolution, if the new dispensation does not repudiate the country’s adherence to the international instruments in which it is signatory, the guarantees found in the Bill of Rights might still be available, like the exclusionary rule.22 1. Atienza, Jr. v. Commission on Elections, 612 SCRA 761 (2010) The employee in the private sector in Yrasuegui v. Philippine Airlines, Inc., 569 SCRA 467 (2008), invoked the Equal Protection Clause with regard to the alleged discrimination done to him by his employer, the Court said: “[I]n the absence of governmental interference, the liberties guaranteed by the Constitution cannot be invoked. Put differently, the Bill of Rights is not meant to be invoked against acts of private individuals. Indeed, the United States Supreme Court, in interpreting the Fourteenth Amendment, which is the source of our equal protection guarantee, is consistent in saying that the equal protection erects no shield against private conduct, however discriminatory or wrongful. Private actions, no matter how egregious, cannot violate the equal protection guarantee.” In Atienza, members of a political party claim denial of due process in their expulsion from the group. The Court held the claim unavailing. Requirements of administrative due process do not apply to the internal affairs of political parties. The due process standards set in Ang Tibay cover only administrative bodies created by the state and through which certain governmental acts or functions are performed. “Although political parties play an important role in our democratic set-up as an intermediary between the state and its citizens, it is still a private organization, not a state instrument. The discipline of members by a political party does not involve the right to life, liberty or property within the meaning of the due process clause. An individual has no vested right, as against the state, to be accepted or to prevent his removal by a political party. The only rights, if any, that party members may have, in relation to other party members, correspond to those that may have been freely agreed upon among themselves through their charter, which is a contract among the party members. Members whose rights under their charter may have been violated have recourse to courts of law for the enforcement of those rights, but not as a due process issue against the government or any of its agencies.” Then, the Court added: “But even when recourse to courts of law may be made, courts will ordinarily not interfere in membership and disciplinary matters within a political party. A political party is free to conduct its internal affairs, pursuant to its constitutionally-protected right to free association.”

C. DUE PROCESS

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Due process might as well provide a sort of a “Swiss Army Knife” guarantee given its adaptability Bar Review 2012 and flexibility as a legal argument. The Due Process Clause is a handy legal tool for the protection of the valued rights to life, liberty and property, and all other freedoms and liberties that inhere or adhere to them. It provides both a safeguard to ensure fairness in the proceedings that may be taken towards the deprivation of any liberty or property interests, or the impairment of any other right or freedom, as well as the guarantee of reasonableness in the enactment of laws and other regulations which impact life, liberty and property.23 A Library Of Liberties vis-à-vis An Arsenal Of Arms

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See Republic v. Sandiganbayan, 407 SCRA 10 (2003)

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Take for instance what the Court said in regard to annulment of judgments: “Although Section 2 of Rule 47 of the Rules of Court

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Person includes both citizens and aliens, natural and juridical. It may not encompass, however, the foetus, or the unborn child24 though the 1987 Constitution has thought it advisable to provide protection for the unborn together with its mother.25 As for life, liberty and property, while all of these are protected, the extent of the care and importance they get are not the same – some things are simply worth much more than others. Thus, when property rights come into conflict with human rights, the former must give way to the latter.26 “[W]hen freedom of the mind is imperiled by law, it is freedom that commands a momentum of respect; when property is imperiled, it is the lawmakers’ judgment that commands respect. This dual standard may not precisely reverse the presumption of constitutionality in civil liberties cases, but obviously it does set up a hierarchy of values within the due process clause.”27 And, more recently, the Court also stated that, “based on the hierarchy of constitutionally protected rights, the right to life enjoys precedence over the right to property. The reason is obvious: life is irreplaceable, property is not. When the state or LGU’s exercise of police power clashes with a few individuals’ right to property, the former should prevail.”28 As between right not to join labor organizations, the Court had this to say: “In the hierarchy of constitutional values, this Court has repeatedly held that the right to abstain from joining a labor organization is subordinate to the policy of encouraging unionism as an instrument of social justice.”29 And, if there is a hierarchy of rights, there is also a hierarchy of evidentiary values which calls into play the guarantee of the Due Process Clause if the inappropriate quantum of proof is demanded by the adjudicator in a particular proceeding.30 Relevant to the chore of weighing conflicting values are so-called standards of review or levels of scrutiny, those instruments of measurement for validity of rules and regulations, adjustable and flexible depending on the interests involved. As for property, aside from those normally owned, it must not be overlooked that a final judgment vests in the prevailing party a right recognized and protected by law under the due process clause of the Constitution – it is a vested interest which the government should recognize and protect, and of which the individual could not be deprived arbitrarily without committing an act of injustice.31 Public office is not property, and one cannot insist on staying in office if the office has already been abolished. But to the extent that one’s right to security of tenure may be implicated, to that extent may due process be called upon for assistance. Unduly long preventive suspension could also be assailed on due process grounds.32 Licenses, while merely in the nature of a privilege, are not also insulated from the checking effects

Recoletos Law Center

provides that annulment of a final judgment or order of an RTC may be based ‘only on the grounds of extrinsic fraud and lack of jurisdiction,’ jurisprudence recognizes denial of due process as additional ground therefor.” (Benatiro v. Heirs of Evaristo Cuyos, 560 SCRA 478 [2008]) 24

See Roe v. Wade, 410 U.S. 113 (1973)

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25

The State “shall equally protect the life of the mother and the life of the unborn from conception.” (Art. II, §12)

26

PBM Employees Org. v. PBM Co., Inc., 51 SCRA 184 (1973)

27

Tolentino v. Secretary of Finance, 235 SCRA 630 (1994)

28

Social Justice Society v. Atienza, Jr., 545 SCRA 92 (2008)

29

Bank of the Philippine Islands v. BPI Employees Union-Davao Chapter-Federation of Unions in BPI Unibank, 627 SCRA 590

(2010) 30

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Manalo v. Roldan-Confesor, 215 SCRA 808 (1992)

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Manotok Realty, Inc. v. CLT Realty Development Corporation, 476 SCRA 305 (2005)

32

See Layno, Sr. v. Sandiganbayan, 136 SCRA 536 (1985) and Deloso v. Sandiganbayan, 173 SCRA 409 (1989)

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of the Due Process Clause, especially if abuse attended their withdrawal or discontinuance.33 The mere fact that one’s claim to something might be based on a privilege and not a right is not determinative of the appropriateness of invoking due process – reliance on the “right privilege dichotomy” has long been denigrated by leading lights in administrative law as “too crude for consistent application” by courts.34 “Under traditional form of property ownership, recipients of privileges or largesses from the government could be said to have no property rights because they possessed no traditionally recognized proprietary interest therein. . . . But the right-privilege dichotomy came to an end when courts realized that individuals should not be subjected to the unfettered whims of government officials to withhold privileges previously given to them. Indeed to perpetuate such distinction would leave the citizens at the mercy of State functionaries, and worse, threaten the liberties protected by the Bill of Rights.”35 Sight must not be lost of the fact that the Clause has two faces or components – the procedural and the substantive. The former is essentially directed at officers who adjudicate while the latter is directed basically at those who enact the laws. The first refers to the guarantees of fairness in the process of determining whether a right, liberty or freedom is to be impaired or otherwise taken away while the latter goes to the very power of the authorities to come up with rules and other strictures under which man may live and enjoy the blessings of a civilized society, including the price that he has to pay to stay. Then again, it must not also be forgotten that procedural due process operates differently under changing circumstances. “Classic procedural due process issues are concerned with what kind of notice and what form of hearing the government must provide when it takes a particular action.”36 Or, as stated in another case: “Procedural due process requires a determination of what process is due, when it is due, and the degree of what is due.”37 What may be required for purposes of judicial proceedings would not be the same in administrative proceedings.38 Those that satisfy the requirements of due process in the investigation of local appointive officials would not suffice for elective officials,39 and so on. It has also been held that where the trial court simply considered the person and past performance of the witness, and decided on this basis that he was a credible witness, rather than look at the merits of his testimony, such act, by itself, was a major error, a violation of due process – a court must always decide on the basis of the evidence presented, not on the basis of any other extraneous consideration not before it.40 Basic to the idea of procedural due process is the presence of an impartial magistrate or tribunal, if fairness is to be had. In Office of the Court Administrator v. Floro, Jr., 486 SCRA 66 (2006), it was held that where a judge entertains an unorthodox belief system – such as believing in “psychic visions,” and in dwarfs, and in being able to write while on trance, of having been seen by several people in two places at the same time, and of foreseeing the future because of his power of “psychic phenomenon” – the same indubitably shows his inability to function with the cold neutrality of an impartial judge. Such beliefs, specially so when acted upon by the judge, are so at odds with the critical and impartial thinking required

Recoletos Law Center Bar Review 2012

33

“[P]ilotage as a profession has taken on the nature of a property right.” (Corona v. United Harbor Pilots Association of the Philippines, 283 SCRA 31 [1997]) On the other hand, it has been held that an “airman license cannot be considered a property right, it is but a mere privilege, subject to the restrictions imposed by the ATO and its revocation if warranted.” (Ledesma v. Court of Appeals, 541 SCRA 444 [2007])

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Mabuhay Textile Mills Corporation v. Ongpin, 141 SCRA 437 (1986)

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Terminal Facilities and Services Corporation v. Philippine Ports Authority, 378 SCRA 82 (2002)

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City of Manila v. Laguio, Jr., 455 SCRA 308 (2005)

37

Av.Library Of Liberties Secretary of Justice Lantion, 343 SCRA 377 (2000)vis-à-vis

38

Cf. Banco Español-Filipino v. Palanca, 37 Phil. 921 (1918) and Ang Tibay v. Court of Industrial Relations, 69 Phil. 635 (1940)

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Joson v. Torres, 290 SCRA 279 (1998)

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People v. Sanchez, 569 SCRA 194 (2008)

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of a magistrate. The judiciary is certainly not the proper place for such a person to stay. On substantive due process, the discussions made by the Court in Estrada v. Sandiganbayan, 369 SCRA 394 (2001), are quite instructive and edifying. It explained the “void-for vagueness” doctrine as “most commonly stated to the effect that a statute establishing a criminal offense must define the offense with sufficient definiteness that persons of ordinary intelligence can understand what conduct is prohibited by the statute. It can only be invoked against that specie of legislation that is utterly vague on its face, i.e., that which cannot be clarified either by a saving clause or by construction.” A statute or act may be said to be vague when it lacks comprehensible standards that men of common intelligence must necessarily guess at its meaning and differ in its application. In such instance, the statute is repugnant to the Constitution in two (2) respects – it violates due process for failure to accord persons, especially the parties targeted by it, fair notice of what conduct to avoid; and, it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle. And what about the overbreadth doctrine? This doctrine decrees that “a governmental purpose may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.” If one’s purpose is simply to roast a pig, then he need not have to burn the barn. Justice Mendoza, concurring, also elucidated on the meaning, importance and relevance of the socalled standards of review or levels of scrutiny, those yardsticks used by the courts to determine the constitutionality of statutes impairing protected rights, liberties and freedoms. Determining whether there is sufficient justification for the government’s action depends very much on the level of scrutiny used.41 This simply means that “if the liberty involved were freedom of the mind or the person, the standard for the validity of governmental acts is much more rigorous and exacting, but where the liberty curtailed affects what are at the most rights of property, the permissible scope of regulatory measures is wider.” Thus, under deferential review, laws are upheld if they rationally further a legitimate governmental interest, without courts seriously inquiring into the substantiality of such interest and examining the alternative means by which the objectives could be achieved. Under intermediate review, the substantiality of the governmental interest is seriously looked into and the availability of less restrictive alternatives are considered. Under strict scrutiny, the focus is on the presence of compelling, rather than substantial governmental interest and on the absence of less restrictive means for achieving that interest. Strict scrutiny is a judicial standard for determining the quality and the amount of governmental interest brought to justify the regulation of fundamental freedoms. It is used today to test the validity of laws dealing with the regulation of speech, gender, or race and facial challenges are allowed for this purpose.42 The Court has also declared: “[C]onstitutional due process demands a higher degree of clarity when infringements on life or liberty are intended. . . . In the matter of statutes that deprive a person of physical liberty, the demand for a clearer standard in sentencing is even more exacting.”43

Recoletos Law Center

If one were to have a better appreciation of these “standards of review,” why not try to reminisce Bar Review 2012 about the law school years where classroom sessions were either a bore, moments of trepidation and 41

City of Manila v. Laguio, Jr., 455 SCRA 308 (2005)

42

In League of Cities, 571 SCRA 263 (2008), we also find this in n. 23:

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“The rational basis test is the minimum level of scrutiny that all government actions challenged under the equal protection clause must meet. The strict scrutiny test is used in discriminations based on race or those which result in violations of fundamental rights. Under the strict scrutiny test, to be valid the classification must promote a compelling state interest. The intermediate scrutiny test is used in discriminations based on gender or illegitimacy of children. Under the intermediate scrutiny test, Of the classification A Library Of Liberties vis-à-vis An Arsenal Arms must be substantially related to an important government objective. Laws not subject to the strict or intermediate scrutiny test are evaluated under the rational basis test, which is the easiest test to satisfy since the classification must only show a rational relationship to a legitimate government purpose. See Erwin Chemerinsky, Constitutional Law, Principles and Policies, 2nd Edition, pp. 645-646.” 43

People v. Bon, 506 SCRA 168 (2006)

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incessant prayers or occasions for hilarious incidents, courtesy of members other than the ones enjoying the fun? A student’s preparations for each subject then were generally dictated by the kind of professors he or she might have had – whether members of terrorist cells or the soft and kind apostles of nonviolence and charity. Another way of looking at it, of course, is to see how those who graduated with honors are feeling the pressure to perform well in the Bar – they should be better than the rest, or so it would logically seem to be. Otherwise, for what reason did they graduate with better distinctions than the rest if not their assumed and presumed more exemplary qualifications? (Of course, for others, beating such favored crop is a vindication of sorts – nothing could be sweeter than being an underdog and trumping everyone, then showing up proud and confident in front of professors who saw no promise in them when still students.) Due Process guarantees have far-reaching consequences and ramifications. In the United States, for instance, it has been implicated in the right of a woman to have an abortion,44 and likewise it has been attempted – unsuccessfully – to justify a claim to a right to suicide.45 Elsewhere, it has been referred to in relation to the rights to counsel,46 information,47 equal protection,48 public trial,49 need for courts to explicitly state the factual and legal bases for their judgments,50 reasonableness of presumptions,51 and even the right not to be subjected to excessive exemplary damages.52 It has likewise been considered in connection with expropriations,53 the determination of the voluntariness and admissibility of extrajudicial confessions,54 as well as the reasonable doubt standard in criminal cases.55 And, it has also been invoked to justify the compelled production of relevant presidential materials as against a generalized assertion of executive privilege.56 Court access by prisoners is also considered part of the guarantee. “The constitutional guarantee of due process of law has as a corollary the requirement that prisoners be afforded access to the courts in order to challenge unlawful convictions and to seek redress for violations of their constitutional rights. This means that inmates must have a reasonable opportunity to seek and receive the assistance of attorneys.”57 Further, inordinate reliance on technical rules of procedure may also offend the guarantee.58 In another case, it was held that the Special Prosecutor cannot 44

See Roe v. Wade, 410 U.S. 113 (1973)

45

See Washington v. Glucksberg, 521 U.S. 702 (1997)

46

E.g., People v. Bermas, 306 SCRA 135 (1999); People v. Santocildes, Jr., 321 SCRA 310 (1999); and, People v. Liwanag, 363 SCRA 62 (2001). In People v. Ferrer, 406 SCRA 658 (2003), the Court declared: “The right to counsel proceeds from the fundamental principle of due process which basically means that a person must be heard before being condemned. The due process requirement is part of a person’s basic rights; it is not a mere formality that may be dispensed with or performed perfunctorily.” 47

Tañada v. Tuvera, 136 SCRA 27 (1985) and 146 SCRA 446 (1986)

48

Philippine Judges Association v. Prado, 227 SCRA 703 (1993). (“The equal protection of the laws is embraced in the concept of due process, as every unfair discrimination offends the requirements of justice and fair play. It has nonetheless been embodied in a separate clause in Article III, Sec. 1, of the Constitution to provide a more specific guaranty against any form of undue favoritism or hostility from the government. Arbitrariness in general may be challenged on the basis of the due process clause. But if the particular act assailed partakes of an unwarranted partiality or prejudice, the sharper weapon to cut it down is the equal protection clause.”)

Recoletos Law Center Bar Review 2012

49

Re Oliver, 333 U.S. 257 (1948)

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Yao v. Court of Appeals, 344 SCRA 202 (2000)

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Tot v. United States, 319 U.S. 463 (1943)

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See BMW of North America, Inc. v. Gore, Jr., 517 U.S. 559 (1996); Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424 (2001); and, State Farm Mutual Automobile Insurance Company v. Campbell, 538 U.S. 408 (2003). 53

Visayan Refining Co. v. Camus, 40 Phil. 550 (1919)

54

See Dickerson v. United States, 530 U.S. 428 (2000)

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Library Of In Re Winship, 397AU.S. 358 (1970)

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United States v. Nixon, 418 U.S. 683 (1974)

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Procunier v. Martinez, 416 U.S. 396 (1974)

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See Banaga v. Majaducon, 494 SCRA 153 (2006)

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act on his own and direct the filing of an Amended Information without the Ombudsman’s go-ahead signal, for to do so would be violative of the guarantee of due process.59 Nevertheless, caution should also be had in using it indiscriminately for it could as soon lend itself to noticeable misuse. Depending on how well one may wield the due process argument, he may find an ally or just an illusory companion. In one case, the Supreme Court opened its opinion with this observation: “It has not escaped the attention of the Court that when a party runs out of arguments, or never had any to begin with, it usually pleads a denial of due process. The plea may impress at first glance, what with all its plaintive invocation of the Bill of Rights, but it does not often succeed upon closer examination.”60 In another case, it concluded with this observation: “The Court is not unaware of the practice of some lawyers who, lacking plausible support for their position, simply claim a denial of due process as if it were a universal absolution. The ground will prove unavailing, and not surprisingly since it is virtually only a pro forma argument. Due process is not to be bandied like a slogan. It is not a mere catch-phrase. As the highest hallmark of the free society, its name should not be invoked in vain but only when justice has not been truly served.”61 The Court also observed in another case: “The Court shall not fake naiveté of the prevalent practice among lawyers who, for lack of better argument to bolster their position, engage in waxing lyrical to ‘a denial of due process.’”62 Finally, the Court has come up with the concept of statutory due process in order to distinguish it from constitutional due process. In Serrano v. National Labor Relations Commission, 323 SCRA 445 (2000), the Court held that the dismissal of an employee who was separated for cause without affording him the notice required by law was considered ineffectual until validated by final judgment. In effect, the employee would be deemed still an employee in the meantime, and accordingly entitled to his wages until his dismissal would have been affirmed. The Court majority in that case was also emphatic that such dismissal was not a violation of due process as the guarantee in the Bill of Rights is directed against governmental action, not private acts. Then, in Agabon v. National Labor Relations Commission, 442 SCRA 573 (2004), the Court characterized the dismissal without complying with the notice requirement as a violation of due process. How did it turn around in a manner that is not entirely contrary to what it said four years earlier? Simple. It came up with something new – two concepts of due process: (a) constitutional due process, and, (b) statutory due process. While under the former, its violation would lead to the nullity of the action made, in the latter it would not necessarily be the case, depending on what the statute itself provides.63 1. Republic v. Cagandahan, 565 SCRA 72 (2008) Most persons may simply take whatever may come their way, specially in regard to the gender that nature may have blessed – or cursedRecoletos – them with. Others want to take matters into their own hands. Lawmay Center Here, Cagandahan, Jennifer and female at birth, is afflicted with the condition called Congenital Bar Review 2012 Adrenal Hyperplasia (CAH), or intersexuality. As she grew up, she also developed the attributes of being male. Biologically, nature endowed her with a mixed (neither consistently and categorically female nor consistently and categorically male) composition. She has female (XX) chromosomes but her body

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Perez v. Sandiganbayan, 503 SCRA 252 (2006)

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Bautista v. Secretary of Labor and Employment, 196 SCRA 470 (1991)

61

Pacific Timber Export Corporation v. National Labor Relations Commission, 224 SCRA 860 (1993)

62

NEECO II v. National Labor Relations Commission, 469 SCRA 169 (2005)

63

A Library Of Liberties vis-à-vis An Arsenal Of Arms

Note what the Court said in this case, a good window to what it had done recently in changing its mind on its earlier decisions. “This is not to say that the Court was wrong when it ruled the way it did in Wenphil, Serrano and related cases. Social justice is not based on rigid formulas set in stone. It has to allow for changing times and circumstances.”

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system naturally produced high levels of male hormones (androgen). As a result, she now has ambiguous genitalia and the phenotypic features of a male. Before the Court, she wants to have correction of her birth certificate to reflect changes in her gender and name – male and Jeff. Can she be accommodated? The Court said yes. It is a recognition of her or his liberty to choose what she or he really is. “CAH is one of many conditions that involve intersex anatomy. During the twentieth century, medicine adopted the term ‘intersexuality’ to apply to ‘human beings who cannot be classified as either male or female. The term is now of widespread use. According to Wikipedia, intersexuality ‘is the state of a living thing of a gonochoristic species whose sex chromosomes, genitalia, and/or secondary sex characteristics are determined to be neither exclusively male nor female. An organism with intersex may have biological characteristics of both male and female sexes.’” The Court explained: “In deciding this case, we consider the compassionate calls for recognition of the various degrees of intersex as variations which should not be subject to outright denial. ‘It has been suggested that there is some middle ground between the sexes, a “no-man’s land” for those individuals who are neither truly ‘male’ nor truly ‘“female”’.” The current state of Philippine statutes apparently compels that a person be classified either as a male or as a female, but this Court is not controlled by mere appearances when nature itself fundamentally negates such rigid classification.” The Court concluded: “Ultimately, we are of the view that where the person is biologically or naturally intersex the determining factor in his gender classification would be what the individual, like respondent, having reached the age of majority, with good reason thinks of his/her sex. Respondent here thinks of himself as a male and considering that his body produces high levels of male hormones (androgen) there is preponderant biological support for considering him as being male. Sexual development in cases of intersex persons makes the gender classification at birth inconclusive. It is at maturity that the gender of such persons, like respondent, is fixed.” In short, to the person with CAH belongs the human right to the pursuit of happiness and of health, and to him should belong the primordial choice of what courses of action to take along the path of his sexual development and maturation, and in absence of evidence to show that classifying him as male will harm other members of society, the Court will affirm as valid and justified his position and his personal judgment of being a male.64 2. Board of Medicine v. Ota, 558 SCRA 234 (2008) Here, the Board of Medicine and Professional Regulation Commission refused to grant a license to Ota, a Japanese who took medical education in the Philippines and who thereafter passed the Board exam, on the ground that there is no real reciprocity between Japan and the Philippines – conditions for practice in Japan are not practical or attainable (practically impossible for a Filipino), and that, in any event, the grant is discretionary with Board.

Recoletos Law Center

“It must be stressed however that the power to regulate the exercise of a profession or pursuit of an occupation cannot be exercised by the State or its agents in an arbitrary, despotic, or oppressive manner. Bar Review 2012 A political body which regulates the exercise of a particular privilege has the authority to both forbid and grant such privilege in accordance with certain conditions. As the legislature cannot validly bestow an arbitrary power to grant or refuse a license on a public agency or officer, courts will generally strike down license legislation that vests in public officials discretion to grant or refuse a license to carry on some ordinarily lawful business, profession, or activity without prescribing definite rules and conditions for the guidance of said officials in the exercise of their power.” The Court noted that “[n]owhere in said A Library OfAct Liberties statutes [R.A. No. 2382 (Medical of 1959)vis-à-vis and P.D. An 223 Arsenal (Creating Of the Arms PRC)] is it stated that the

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This is to be distinguished from Silverio v. Republic, 537 SCRA 373 (2007), where the petitioner wanted correction of his birth certificate to reflect the effects of his sex change through sex reassignment surgery. He wanted to change his name from Rommel to Mely, and from male to female. The Court said that there is no law which allows such corrections.

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foreign applicant must show that the conditions for the practice of medicine in said country are practical and attainable by Filipinos. Neither is it stated that it must first be proven that a Filipino has been granted license and allowed to practice his profession in said country before a foreign applicant may be given license to practice in the Philippines.” In other words, “[i]t is enough that the laws in the foreign country permit a Filipino to get license and practice therein. Requiring respondent to prove first that a Filipino has already been granted license and is actually practicing therein unduly expands the requirements provided for under R.A. No. 2382 and P.D. No. 223.” 3. Parreño v. Commission on Audit, 523 SCRA 390 (2007) When do retirement benefits accrue and become vested rights? And, what is the nature of the retirement benefits of military men? Section 27 of P.D. No. 1638, as amended by PD 1650, withdraws pension benefits of retired military men who have lost their Philippine citizenship. Is this not a violation of the right to due process, particularly on non-deprivation of property? “PD 1638, as amended, does not impair any vested right or interest of petitioner. Where the employee retires and meets the eligibility requirements, he acquires a vested right to the benefits that is protected by the due process clause. At the time of the approval of PD 1638 and at the time of its amendment, petitioner was still in active service. Hence, petitioner’s retirement benefits were only future benefits and did not constitute a vested right. . . . It is only upon retirement that military personnel acquire a vested right to retirement benefits.” And what is the nature of the retirement benefits of military men? “[T]he retirement benefits of military personnel are purely gratuitous in nature. They are not similar to pension plans where employee participation is mandatory, hence, the employees have contractual or vested rights in the pension which forms part of the compensation.” 4. Kuwait Airways Corporation v. Philippine Airlines, Inc., 587 SCRA 399 (2009) The Philippine Government, through the Civil Aeronautics Board, or any of its officials, cannot unilaterally terminate an air agreement between a private Philippine air carrier and a foreign airline. The Court acknowledged that the CAB has ample power under its organizing charter, to compel Philippine Airlines to terminate whatever commercial agreements the carrier may have. However, it noted that this is not a case where the CAB had duly exercised its regulatory authority over a local airline in order to implement or further government air policy. “What happened instead was an officer of the CAB, acting in behalf not of the Board but of the Philippine government, had committed to a foreign nation the immediate abrogation of Philippine Airlines’s commercial agreement with Kuwait Airways. And while we do not question that ability of that member of the CAB to represent the Philippine Recoletos Law Center government in signing the CMU [Confidential Memorandum of Understanding], we do question whether such member could have bound Philippine Airlines in a manner that can be accorded legal recognition Bar Review 2012 by our courts.” The Court then went on to state that, “We, as magistrates in a functioning democratic State with a fully fleshed Bill of Rights and a Constitution that emphatically rejects ‘l’etat cest moi’ as the governing philosophy, think not. There is nothing to prevent the Philippine government from utilizing all the proper channels under law to enforce such closure, but unless and until due process is observed, it does not have legal effect in this jurisdiction. Even granting that the ‘agreement’ between the two governments or their representatives creates a binding obligation under international law, it Library Of Liberties Of Arms remains incumbentAfor each contracting partyvis-à-vis to adhereAn to Arsenal its own internal law in the process of complying with its obligations. The promises made by a Philippine president or his alter egos to a foreign monarch are not transubstantiated by divine right so as to ipso facto render legal rights of private

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persons obviated. . . . The President or his alter egos do not have the legal capacity to dictate insuperable commands to private persons. And that undesirable trait would be refuted on the President had petitioner’s position prevailed, since it is imbued with the presumption that the commitment made to a foreign government becomes operative without complying with the internal processes for the divestiture of private rights.” 5. Aberca v. Ver, – SCRA – (G.R. No. 166216, 14 March 2012) In this case, defendants – military men – were sued for damages by persons they arrested, detained and allegedly tortured. The trial court granted the defendants’ motion to dismiss but the Supreme Court reversed and remanded the case for further proceedings. While the case was with the Court, the EDSA Revolution occurred. On remand, the records were burned when the Quezon City Hall burned in 1988. They were later reconstituted at the instance of the plaintiffs. In the meantime, the trial court required the plaintiffs to report the addresses of the defendants, specially so as most of said defendants were no longer in office and the Solicitor General who represented them initially (Estelito Mendoza) left office following the EDSA Revolution. The new Solicitor General (Francisco Chavez) withdraw the OSG’s representation of the defendants. For failure to do so, the case was dismissed, only to be reconsidered. Then, the trial court ordered that the notice to file answer be done through publication. The defendants were then declared in default for failure to answer and an adverse judgment was subsequently rendered. On petition before the Court of Appeals, the appellate court set aside the judgment Now, the issue before the Court is whether the trial court acted properly. The Court said there was denial of due process which invalidated the proceedings against the defendants. The Court explained that the acceptable modes of service of pleadings, motions, notices, orders, judgments, and other papers under Rule 13 are (1) personal service, (2) service by mail, and (3) substituted service, in case service cannot be effected either personally or by mail. “[T]he basic rules on modes of service of pleadings, motions, notices, orders, judgments, and other papers are mandatory in nature and, therefore, must be strictly observed.” In the instant case, the defendants “were completely deprived of due process when they were declared in default based on a defective mode of service – service of notice to file answer by publication. The rules on service of pleadings, motions, notices, orders, judgments, and other papers were not strictly followed in declaring the respondents in default. The Court agrees with the CA that the RTC committed procedural lapses in declaring the respondents in default and in allowing the petitioners to present evidence ex-parte.” Then for further edification in Remedial Law, Court explained that after failure of personal or mail service, “there was still another less preferred but proper mode of service available – substituted service – which is service made by delivering the copy to the clerk of court, with proof of failure of both personal service and service by mail. Unfortunately, this substitute Recoletos Law Centermode of service was not resorted to by the RTC after it failed to effect personal service and service by mail. Instead, the RTC authorized an unrecognized mode of service underBar the Review Rules, which2012 was service of notice to file answer by publication.” In any event, “[i]n case the preferred modes were impractical, the Court should have required the petitioners to at least report in writing why efforts exerted towards personal service or service by mail failed. In other words, a convincing proof of an impossibility of personal service or service by mail to the respondents should have been shown first. The RTC, thus, erred when it ruled that the publication of a notice to file answer to the respondents substantially cured the procedural defect equivalent to lack of due process. The RTC cannot just An abandon the basic requirement of personal A Library Of Liberties vis-à-vis Arsenal Of Arms service and/or service by mail.”

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And, for emphasis, “[t]o stress, the only modes of service of pleadings, motions, notices, orders,

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judgments and other papers allowed by the rules are personal service, service by mail and substituted service if either personal service or service by mail cannot be made, as stated in Sections 6, 7 and 8 of Rule 13 of the Rules of Court. Nowhere under this rule is service of notice to file answer by publication is mentioned, much less recognized. Furthermore, the Court would like to point out that service by publication only applies to service of summons stated under Rule 14 of the Rules of Court where the methods of service of summons in civil cases are: (1) personal service; (2) substituted service; and (3) service by publication. Similarly, service by publication can apply to judgments, final orders and resolutions as provided under Section 9, Rule 13 of the Rules of Court, . . .” Now, have you not yet gotten the drift? Most often, in learning about Constitutional Law, you may also digress into learning about other subjects – fringe benefits! 6. Anonymous v. Radam, 541 SCRA 12 (2007) Speaking of birth certificates, what’s wrong with anonymous or unknown authors, a.k.a. fathers? Radam, a court utility worker, was charged with immorality for having a child outside marriage. In her explanation, she admitted that she and her boyfriend, who had a pending application to migrate to Canada, had a mutual plan to remain unmarried. The Office of the Court Administrator recommended exoneration but submitted that Radam should be held liable for Conduct Unbecoming and fined for stating in the birth certificate that the father was “unknown” when she knew all along who it was. The Court agreed that she should could not be held liable as charged.65 But, could she be found guilty for conduct unbecoming? No, for that would run afoul of due process. Radam was indicted only for alleged immorality for giving birth out of wedlock. It was the only charge of which she was informed. Thus, the recommendation of the OCA that she be held administratively liable in connection with an entry in the birth certificate of her son came like a thief in the night. It was unwarranted. She was neither confronted with it nor given the chance to explain it. To hold her liable for a totally different charge of which she was totally unaware will violate her right to due process. The essence of due process in an administrative proceeding is the opportunity to explain one’s side, whether written or verbal. This presupposes that one has been previously apprised of the accusation against him or her. Here, Radam was deprived of both. “Unless the constitutional guarantee of due process is a mere platitude, it is the Court’s duty to insist on its observance in all cases involving a deprivation, denigration or dilution of one’s right to life, liberty and property.” 7. Civil Service Commission v. Colanggo, 553 SCRA 640 (2008) 65

The Court held that “[f]or purposes of determining administrative responsibility, giving birth out of wedlock is not per se immoral under civil service laws. For such conduct to warrant disciplinary action, the same must be ‘grossly immoral,’ that is, it must be so corrupt and false as to constitute a criminal act or so unprincipled as to be reprehensible to a high degree.” Thus, “[f]or a particular conduct to constitute ‘disgraceful and immoral’ behavior under civil service laws, it must be regulated on account of the concerns of public and secular morality. It cannot be judged based on personal bias, specifically those colored by particular mores. Nor should it be grounded on ‘cultural’ values not convincingly demonstrated to have been recognized in the realm of public policy expressed in the Constitution and the laws. At the same time, the constitutionally guaranteed rights (such as the right to privacy) should be observed to the extent that they protect behavior that may be frowned upon by the majority.” Otherwise stated, “two things may be concluded from the fact that an unmarried woman gives birth out of wedlock: (1) if the father of the child is himself unmarried, the woman is not ordinarily administratively liable for disgraceful and immoral conduct. It may be a not-so-ideal situation and may cause complications for both mother and child but it does not give cause for administrative sanction. There is no law which penalizes an unmarried mother under those circumstances by reason of her sexual conduct or proscribes the consensual sexual activity between two unmarried persons. Neither does the situation contravene any fundamental state policy as expressed in the Constitution, a document that accommodates various belief A Library OfIf Liberties An Arsenal Of married Armsto a woman other than the systems irrespective of dogmatic origins. (2) the father of thevis-à-vis child born out of wedlock is himself mother, then there is a cause for administrative sanction against either the father or the mother. In such a case, the ‘disgraceful and immoral conduct; consists of having extramarital relations with a married person. The sanctity of marriage is constitutionally recognized and likewise affirmed by our statutes as a special contract of permanent union. Accordingly, judicial employees have been sanctioned for their dalliances with married persons or for their own betrayals of the marital vow of fidelity.”

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In this case, it was discovered that there were significant irregularities in Colanggo’s documents – photographs attached to Professional Board Examination for Teachers (PBET), application form and picture seat plan did not resemble Colanggo, and signature on PBET form was markedly different from that affixed on his personal data sheet (PDS), i.e., someone other than he filed his PBET application and still another took the exam on his behalf. As a consequence, he was charged with dishonesty and conduct prejudicial to the best interest of the service. After a formal hearing, the Civil Service Commission dismissed him. The Court of Appeals reversed, however, holding that photocopies of PBET application form, picture plan and PDS should have been authenticated. The Supreme Court held otherwise. “Administrative rules of procedure are construed liberally to promote their objective and to assist parties in obtaining just, speedy and inexpensive determination of their respective claims and defenses.” The CSC, in investigating complaints against civil servants, is not bound by technical rules of procedure and evidence applicable in judicial proceedings. Accordingly, the CSC correctly appreciated the photocopies of PBET application form, picture seat plan and PDS (though not duly authenticated) in determining whether there was sufficient evidence to substantiate the charges against Colanggo who did not even object to the veracity of their contents but merely disputed their admissibility on the ground that they were not authenticated. 8. Geronga v. Varela, 546 SCRA 429 (2008) In this case, Geronga, an Engineer in Cadiz City, was charged with 1) Unjust Vexation, Contempt, Insubordination, Conduct Unbecoming a Public Officer, and Alarm and Scandal (Administrative Case No. 96-04); and 2) Grave Misconduct and Engaging in Partisan Political Activity (with 2 other respondents) (Administrative Case No. 96-05). The matter was referred by the mayor to the City Legal Officer for investigation. After investigation, it was recommended that Geronga be dismissed for Grave Misconduct in Adm. Case No. 96-04, and dismissed as well, together with others charged with him, in the other case for grave misconduct and partisan politics. Both recommendations were approved by the mayor and he dismissed Geronga and the others. Without assistance of counsel, Geronga filed notice to appeal to CSC, then, still without assistance of counsel, filed a Joint Memorandum (together with another respondent in Adm. Case No. 96-05), in which he discussed Administrative Case No. 96-05 only, and completely omitted reference to Administrative Case No. 96-04. The CSC ordered the reinstatement of all 3 respondents, but on motion for reconsideration, the CSC reconsidered in regard to Geronga since his dismissal in Adm. Case No. 96-04 was not appealed. The Court, after noting that there is a material difference between a mere recommendation to dismiss an employee and an administrative decision/resolution sentencing him with dismissal – it is not the recommendations which are theRecoletos proper subject matter of an appeal to the CSC, but the Law Center decision/resolution of dismissal rendered by the disciplining authority – pointed out that in the Notice of Appeal which Geronga filed, he distinctly stated that2012 what he was appealing to the CSC is his Bar Review dismissal as contained in the mayor’s Memorandum Order approving the recommendations of the City Legal Officer. By so doing, he effectively included in his appeal not just Administrative Case No. 96-05 but also Administrative Case No. 96-04. Therefore, it was error to conclude that Administrative Case No. 96-04 had become final and executory for failure of petitioner to appeal the same to the CSC. “Unfortunately for petitioner, the CA and CSC did not anymore look into the merits of the decision in Administrative Case No. 96-04 simply because he raised no issue or argument against it. Library Ofcould Liberties vis-à-vis An Arsenal Of Arms Understandably, theACA and CSC not be faulted for doing so; they were merely adhering to a basic rule that in any proceeding, a party who fails to cite specific grounds or raise particular arguments is deemed to have waived them. Such rule, however, is not sacrosanct. It yields to the imperatives of

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equity, which often arise in administrative cases where at stake is the security of tenure of labor, the protection of which no less than the Constitution guarantees. Deprivation of security of tenure may be justified only for the causes specified and in the manner prescribed by law. Should there be doubt in the legality of either cause or mode of dismissal, public interest demands the resolution of the doubt wholly on its substance, rather than solely on technical minutiae.” So what now? “While petitioner, unaided by legal counsel, may have omitted to raise specific grounds against the decision insofar as Administrative Case No. 96-04 is concerned, it cannot be denied that he intended to appeal from it. The least he deserves then is a scrutiny of the legal and factual bases of his dismissal.” And, the Court further pointed out: “As it turns out, upon review, said decision, insofar as it relates to Administrative Case No. 96-04, is patently void.” How come? “Two fundamental requirements of due process in administrative cases are that a person must be duly informed of the charges against him; and that he cannot be convicted of an offense or crime with which he was not charged. A deviation from these requirements renders the proceeding invalid and the judgment issued therein a lawless thing that can be struck down anytime. In the present case, the records of Administrative Case No. 96-04 reveal that petitioner was dismissed for an act which was not alleged in the administrative charge filed against him.” The conclusion which the City Legal Officer arrived at in his recommendation, and which became the basis of the dismissal of Geronga, has no bearing whatsoever on the offenses with which the latter was charged under the Sworn Complaint nor to the incidents/acts described therein. Rather, the conclusion pertains solely to the alleged defamatory statements which Geronga made in his Letter-Answer to the Sworn Complaint. Nowhere in the records of Administrative Case No. 96-04 does it appear that petitioner was charged with grave misconduct, or that he was held to answer for his alleged defamatory statements in his letter. Thus, the recommendation and the dismissal order were issued in utter contempt of the right of petitioner to due process. Both are void ab initio and should be treated as inexistent. “In effect, there was nothing for petitioner to appeal from in Administrative Case No. 96-04.” Is it then all good news for Geronga? No, not really. The Court added: “That said, however, the nullity of Memorandum Order No. 98-V-05 and the December 1, 1997 Resolution/Recommendation leaves Administrative Case No. 96-04 unresolved. Although the Court may already decide said case based on the records before us, the better policy is for us to defer to the prerogative granted under Section 17, Rule 3 of the Rules of Court, to the primary disciplining authority, the incumbent mayor of Cadiz City, whether or not to pursue said administrative case.” Well, if anything, the case could be good news for aspiring lawyers – it highlights the pitfalls of trying to do away with their services. 9. Uy v. Office of the Ombudsman, 556 SCRA 73 (2008)

Recoletos Law Center

What’s In a Name? In the plunder case against former President Estrada and others, included among those charged was one Eleuterio Tan a.k.a. Eleuterio Ramos Tan or Mr. Tan (with address at Valenzuela Bar Review 2012 City or Mandaluyong City). In time, there was request for issuance of a warrant of arrest against Victor Jose Tan Uy [with address in Cebu] alias Eleuterio Tan, Eleuterio Ramos Tan or Mr. Uy, based allegedly on positive identification made through photographs, as early as the Senate Impeachment Trial of Estrada, as well as on the Sworn Statement of Ma. Caridad Manahan-Rodenas executed before Atty. Roxas of the Fact Finding and Intelligence Bureau of the Office of the Ombudsman (“FFIB”) (“identification documents”). A Library Of Liberties vis-à-vis An Arsenal Of Arms Petitioner sought the conduct of preliminary investigation as to him which the Sandiganbayan granted. The Ombudsman then issued an Order requiring the petitioner to file his counter-affidavit, the affidavits of his witnesses, and other supporting documents. Attached to the Order were the

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Complaint-Affidavit in OMB-0-00-1756 and the NBI Report in OMB-0-00-1720. After the petitioner filed his counter-affidavit in which he pointed out that he was not among those charged, the OMB required him to appear for clarificatory hearing but he did not, claiming that there was no need for it. In the resolution that the OMB subsequently issued, it found probable cause against petitioner. Petitioner assailed the same before the Supreme Court, alleging grave abuse of discretion for, among other, having relied on evidence and findings that were never part of the complaints-affidavits or their supporting documents served upon him, and which were never adduced or presented in the course of the preliminary investigation conducted. Specifically, he claimed that the “duty of the Ombudsman is to determine the existence of probable cause based on the evidence presented, not to fill up the deficiencies of the complaint, nor to remedy its weaknesses.” The Court agreed. “At the core of the present controversy is the regularity, in the context of accepted standards of due process, of the Ombudsman’s conduct of the Sandiganbayan-ordered preliminary investigation.” The standards that at the very least assume great materiality and significance are those enunciated in the leading case of Ang Tibay v. Court of Industrial Relations which instructively tells us – in defining the basic due process safeguards in administrative proceedings – that the decision (by an administrative body) must be rendered on the evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected. “[T]he petitioner was never identified in the previous preliminary investigation to be the person identified by assumed names or aliases in the supporting complaint-affidavits; hence, a new preliminary investigation should be conducted to identify him as the person who, using the aliases Eleuterio Tan, Eleuterio Ramos Tan or Mr. Uy, opened and withdrew from the Landbank account in the course of a series of acts collectively constituting the crime of plunder. The critical evidence linking the petitioner to the plunder case is his identification through the identification documents. This notwithstanding and quite inexplicably, the identification documents – despite the fatal infirmity the Sandiganbayan found in the first preliminary investigation – were once again not given to the petitioner in the subsequent Sandiganbayan-ordered preliminary investigation to inform him of his alleged links to the charges under the complaint-affidavits.” Further, the Court added: “That the petitioner may have actual prior knowledge of the identification documents from proceedings elsewhere is not a consideration sufficiently material to affect our conclusion. Reasonable opportunity to controvert evidence and ventilate one’s cause in a proceeding requires full knowledge of the relevant and material facts specific to that proceeding. One cannot be expected to respond to collateral allegations or assertions made, or be bound by developments that transpired, in some other different although related proceedings, except perhaps under situations where facts are rendered conclusive by reason of judgments between the same parties – a situation that does not obtain in the present case. Otherwise, surprise – which is anathema to due process – may result together with the consequent loss of adequate opportunity to ventilate one’s case and be heard. Recoletos Law Center Following Ang Tibay, a decision in a proceeding must be rendered based on the evidence presented at the hearing (of the proceeding), or at least contained in the record (of the proceeding) and disclosed to Bar Review 2012 the parties affected (during or at the proceeding).” 10. Formantes v. Duncan Pharmaceuticals, Phils., Inc., 607 SCRA 268 (2009)

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In Genuino v. National Labor Relations Commission, 539 SCRA 342 (2007), the Court held that an employee sought to be dismissed must be given the particulars of the acts or omissions which are supposed to be the bases of the charge. They must not be too general in order to enable the employee to A Library Of Liberties An Of Janssen Arms Pharmaceutica v. intelligently and adequately prepare his or her vis-à-vis defense. On theArsenal other hand, Silayro, 546 SCRA 628 (2008), held that a person cannot be made to account for and explain an event that has yet to happen. But can an employee’s dismissal be upheld by the Labor Arbiter based on a

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ground other than that specified by his employer? The Court said yes in Formantes. The Court referred to its ruling in Rubberworld (Phils.), Inc. v. National Labor Relations Commission,183 SCRA 421 (1990), at 424, where it held: “It is now axiomatic that if just cause for termination of employment actually exists and is established by substantial evidence in the course of the proceedings before the Labor Arbiter, the fact that the employer failed, prior to such termination, to accord to the discharged employee the right of formal notice of the charge or charges against him and a right to ventilate his side with respect thereto, will not operate to eradicate said just cause so as to impose on the employer the obligation of reinstating the employee and otherwise granting him such other concomitant relief as is appropriate in the premises.” It went on to observe: “Although petitioner was dismissed from work by the respondent on the ground of insubordination, this Court cannot close its eyes to the fact that the ground of sexual abuse committed against petitioner's subordinate actually exists and was established by substantial evidence before the LA.” 11. Anillo v. Commission on the Settlement of Land Problems, 534 SCRA 228 (2007) Due process does not always have to mean actual notice all the time. It may also be satisfied if and when there is constructive notice, such as when one has been represented by a lawyer who has been appearing all along for the interest of the party and others in the proceedings. “In administrative proceedings, procedural due process has been recognized to include the following: (1) the right to actual or constructive notice of the institution of proceedings which may affect a respondent’s legal rights; (2) a real opportunity to be heard personally or with the assistance of counsel, to present witnesses and evidence in one’s favor, and to defend one’s rights; (3) a tribunal vested with competent jurisdiction and so constituted as to afford a person charged administratively a reasonable guarantee of honesty as well as impartiality; and (4) a finding by said tribunal which is supported by substantial evidence submitted for consideration during the hearing or contained in the records or made known to the parties affected.” 12. Benatiro v. Heirs of Evaristo Cuyos, 560 SCRA 478 (2008) “Although Section 2 of Rule 47 of the Rules of Court provides that annulment of a final judgment or order of an RTC may be based ‘only on the grounds of extrinsic fraud and lack of jurisdiction,’ jurisprudence recognizes denial of due process as additional ground therefor.” And, of course, a void judgment for lack of due process of law, is no judgment at all. 13. Jamsani-Rodriguez v. Ong, 628 SCRA 626 (2010) Here, the Court said that Sandiganbayan justices should hear hearing collectively, or as a collegial body, and not individually. “We find that the procedure adopted by respondent Justices for their provincial hearings was in blatant disregard of PD 1606, as amended, the Rules of Court, and the Revised Recoletos Law Center Internal Rules of the Sandiganbayan. Even worse, their adoption of the procedure arbitrarily denied the benefit of a hearing before a duly constituted Division of the Sandiganbayan to all the affected litigants, Bar Review 2012 including the State, thereby rendering the integrity and efficacy of their proceedings open to serious challenge on the ground that a hearing before a duly constituted Division of the Sandiganbayan was of the very essence of the constitutionally guaranteed right to due process of law.”

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What then is the effect on the proceedings? The Court said: “[T]he Court clarifies that this decision is limited to the determination of the administrative culpability of the respondent Justices, and does not extend to the ascertainment of Of whatever mightvis-à-vis be the effects of any irregularity A Library Liberties An Arsenal Of Arms they committed as members of the Fourth Division on the trial proceedings. This clarification stresses that the proceedings, if procedurally infirm, resulted from the acts of the Sandiganbayan as a collegial body, not from their acts as individual Justices. The remedy against any procedural infirmity is not administrative but

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judicial.” 14. EDI-Staffbuilders International, Inc. v. National Labor Relations Commission, 537 SCRA 409 (2007) Failure to furnish the adverse party with a copy of the appeal is treated only as a formal lapse, an excusable neglect, and hence, not a jurisdictional defect. Accordingly, in such a situation, the appeal should not be dismissed; however, it should not be given due course either. The duty is then imposed on the NLRC to require the appellant to comply with the rule that the opposing party should be provided with a copy of the appeal memorandum. Such failure of the NLRC to order the appellant to furnish the appellee with the Appeal Memorandum constitutes grave abuse of discretion and the NLRC should not proceed with the adjudication of the case. This failure deprived the other party of procedural due process which can serve as basis for the nullification of proceedings in the appeal before the NLRC. It is not a level playing field. The rights of the employers to procedural due process cannot be cavalierly disregarded for they too have rights assured under the Constitution. 15. Portuguez v. GSIS Family Bank, 517 SCRA 309 (2007) Portuguez complained of having been constructively dismissed, and that he was forced to retire at the prime of his life as a consequence of the discrimination, unfair treatment and intense pressure he got from management. On the issue of discrimination, he alleged that he “reliably learned that Bank records show that your newly hired officers are being paid the basic salaries in the range of P =25,000 to P =30,000.” The Court shot this down with the observation that “[s]uch bare and sweeping statement contains nothing but empty imputation of a fact that could hardly be given any evidentiary weight by this Court. It is indeed true that the demand letter made reference to bank records upon which petitioner purportedly derived his allegation but no such bank records were ever presented as evidence at any stage of the proceedings. Indubitably, such self-serving and unsubstantiated declaration is insufficient to establish a case before quasi-judicial bodies.” In the same way, it is not enough to simply write something in your memorandum. You must have more than conclusions to convince the examiner that – at the very least – you know what you are supposedly talking about. 16. Viva Footwear Manufacturing Corporation v. Securities and Exchange Commission, 522 SCRA 609 (2007) In Pefianco v. Moral, 322 SCRA 439 (2000), and echoed in Velasquez v. Hernandez, 437 SCRA 537 (2004), the Court held that a respondent in an administrative case is not entitled to be informed of findings and recommendations of an investigating committee. He is only entitled to the administrative Recoletos Law Center decision. Viva Footwear is to the same effect. Here, the Court said that a respondent in an administrative case is not entitled to be informed of the preliminary findings and recommendations; he is entitled only Bar Review 2012 to a reasonable opportunity to be heard, and to the administrative decision based on substantial evidence. Note that it is the administrative order, not the preliminary report, which is the basis of any further remedies the losing party in an administrative case may pursue. Its right to administrative due process only entitles it to an opportunity to be heard and to a decision based on substantial evidence.

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17. Solid Homes, Inc. v. Laserna, 550 SCRA 613 (2008) Athe Library An of Arsenal Of Arms The issue here is validityOf ofLiberties an decisionvis-à-vis of the Office the President which consisted of only a page affirming the judgment of the HLURB, which was attached to it. The Court held that “[t]he constitutional mandate that, ‘no decision shall be rendered by any court without expressing therein

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clearly and distinctly the facts and the law on which it is based,’ does not preclude the validity of ‘memorandum decisions,’66 which adopt by reference the findings of fact and conclusions of law contained in the decisions of inferior tribunals.” And, in regard to that constitutional provision itself, the Court said that “Section 14, Article VIII of the 1987 Constitution need not apply to decisions rendered in administrative proceedings, as in the case a bar. Said section applies only to decisions rendered in judicial proceedings. In fact, Article VIII is titled ‘Judiciary,’ and all of its provisions have particular concern only with respect to the judicial branch of government. Certainly, it would be error to hold or even imply that decisions of executive departments or administrative agencies are obliged to meet the requirements under Section 14, Article VIII. The rights of parties in administrative proceedings are not violated as long as the constitutional requirement of due process has been satisfied.”67 Making reference to what was held in the venerable Ang Tibay v. Court of Industrial Relations, 69 Phil. 635 (1940), the Court said: “Note that there is no requirement in Ang Tibay that the decision must express clearly and distinctly the facts and the law on which it is based. For as long as the administrative decision is grounded on evidence, and expressed in a manner that sufficiently informs the parties of the factual and legal bases of the decision, the due process requirement is satisfied.” 18. Espiña v. Cerujano, 550 SCRA 107 (2008) Can one charged with Conduct Grossly Prejudicial to the Best Interest of the Service be found guilty of Grave Misconduct? The Court said it cannot be done. “Conduct grossly prejudicial to the service does not necessarily include the elements of grave misconduct. The word ‘gross’ connotes ‘something beyond measure; beyond allowance; not to be excused; flagrant; shameful’ while ‘prejudicial’ means ‘detrimental or derogatory to a party; naturally, probably or actually bringing about a wrongful result.’ Conduct grossly prejudicial to the best interest of the service may or may not be characterized by corruption or a willful intent to violate the law or to disregard established rules. Under the Civil Service law and rules, there is no concrete description of what specific acts constitute the grave offense of conduct grossly prejudicial to the best interest of the service, although this Court has considered the following acts or omissions, among others, as such: misappropriation of public funds, abandonment of office, failure to report back to work without prior notice, failure to safe keep public records and property, making false entries in public documents and falsification of court orders. While grave misconduct and conduct grossly prejudicial to the best interest of the service are both grave offenses under the Omnibus Rules Implementing Book V of Executive Order No. 292, grave misconduct has a graver penalty.”

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In Francisco v. Permskul, 173 SCRA 324 (1989), the Court declared: “The memorandum decision, to be valid, cannot incorporate the findings of fact and the conclusions of law of the lower court only by remote reference, which is to say that the challenged decision is not easily and immediately available to the person reading the memorandum decision. For the incorporation by reference to be allowed, it must provide for direct access to the facts and the law being adopted, which must be contained in a statement attached to the said decision. In other words, the memorandum decision authorized under Section 40 of P.P. Blg. 129 should actually embody the findings of fact and conclusions of the lower court in an annex attached to and made an indispensable part of the decision.” Then came up with this admonition: “The Court finds it necessary to emphasize that the memorandum decision should be sparingly used lest it becomes an addictive excuse for judicial sloth. It is an additional condition for its validity that this kind of decision may be resorted to only in cases where the facts are in the main accepted by both parties or easily determinable by the judge and there are no doctrinal complications involved that will require an extended discussion of the laws involved. The memorandum decision may be employed in simple litigations only,Asuch as ordinary cases,vis-à-vis where the appeal obviously groundless and deserves no more than Library Ofcollection Liberties An isArsenal Of Arms the time needed to dismiss it.”

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Cf. Pilipinas Kao, Inc. v. Court of Appeals, 372 SCRA 548 (2001), where the Court said the constitutional and statutory mandate that “no decision shall be rendered by any court of record without expressing therein clearly and distinctly the facts and the law on which it is based” applies as well to dispositions by quasi-judicial and administrative bodies.

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19. Romagos v. Metro Cebu Water District, 533 SCRA 50 (2007) This is a case regarding separation from the service due to mental incapacity. Mental incapacity could be a ground for either a disciplinary or non-disciplinary separation. It is disciplinary if the mental incapacity or disability is due to immoral or vicious habits, in which case separation from the service is done by way of a disciplinary proceeding. On the other hand, “[w]hile Section 46 of E.O. No. 292 is silent on this matter, mental incapacity not arising from immoral or vicious habits is also a cause for separation under Section 26 of E.O. No. 292 and Section 2(2), Article IX(B) of the 1987 Constitution, which demand of government officers and employees continuing merit and fitness. Separation from the service for such cause is carried out through a non-disciplinary process governed by CSC Memorandum Circular No. 40, series of 1998 (MC 40-98).” Any difference in the two modes of separation? Yes, “the first carries administrative disabilities, such as forfeiture of retirement benefits and perpetual disqualification from employment in the government service, while the second does not. But both result in loss of employment – a property right protected under the due process clause. Hence, even if considered a non-disciplinary mode of separation, dropping from the rolls due to mental incapacity not arising from immoral or vicious habits is subject to the requirements of due process.” So what would be the due process requirements then in cases where an employee has to be separated from the service due to mental incapacity? “Clearly, before an officer or employee may be dropped from the rolls for mental incapacity, the following elements and process must obtain: first, that it has been observed that the subject officer or employee has been behaving abnormally for an extended period; second, that it has been established through substantial evidence that such abnormal behavior manifests a continuing mental disorder and incapacity to work; third, that a written notice is issued by the subject’s immediate supervisor, describing the former’s continuing mental disorder and incapacity to work and citing the reports of his co-workers or immediate supervisor, as confirmed by the head of office; and finally, that another notice is issued by the appointing authority or head of office, informing the subject of his separation from the service due to mental incapacity. Thus, a declaration of mental disorder does not automatically translate to a judgment of mental incapacity to perform work. A window remains open for the affected officer or employee to counter opinion on his mental condition and to show that his ability to work remains unimpaired. Only then may the appointing authority or head of office decide on whether said officer or employee is no longer mentally capable of performing his work and should be discharged. These requirements are designed to obviate misuse of non-disciplinary modes of separation for petty vengeance or vicious harassment.” 20. De La Salle University, Inc. v. Court of Appeals, 541 SCRA 22 (2007) While it is within the academic freedom of learning institutions to impose discipline upon students Center guilty of certain offenses, the sameRecoletos must, however,Law be exercised prudently and not just whimsically or arbitrarily wielded. In short, the penalty must be appropriate for the misdeed committed. The power to Bar Review 2012 to impose a penalty which is not discipline does not give schools “untrammeled discretion commensurate with the gravity of the misdeed. If the concept of proportionality between the offense committed and the sanction imposed is not followed, an element of arbitrariness intrudes. That would give rise to a due process question.

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Thus, the Court held that the penalty of expulsion is grossly disproportionate to the gravity of the acts committed by the students who were found guilty in two mauling incidents which lasted only for A victims Librarynot Of Liberties An “Disciplinary Arsenal Of measures Arms especially where few seconds, with the suffering any vis-à-vis serious injury. 68

“An extreme penalty of an erring pupil or student consisting of his exclusion from admission to any public or private school in the Philippines and which requires the prior approval of the Secretary.” (Manual of Regulations for Private Schools [1992])

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they involve suspension, dismissal or expulsion, cut significantly into the future of a student. They attach to him for life and become a mortgage of his future, hardly redeemable in certain cases. Officials of colleges and universities must be anxious to protect it, conscious of the fact that, appropriately construed, a disciplinary action should be treated as an educational tool rather than a punitive measure.” The students were meted only the penalty of exclusion.69 21. Office of the Ombudsman v. Sison, 612 SCRA 702 (2010) Can the Office of the Ombudsman intervene in the appeal from the Court of Appeals’ decision reversing the OMB’s earlier decision? No. It should remain detached – it must keep in mind that it is an adjudicator, not an advocate “Clearly, the Office of the Ombudsman is not an appropriate party to intervene in the instant case. It must remain partial and detached. More importantly, it must be mindful of its role as an adjudicator, not an advocate. It is an established doctrine that judges should detach themselves from cases where their decisions are appealed to a higher court for review. The raison d’etre for such a doctrine is the fact that judges are not active combatants in such proceeding and must leave the opposing parties to contend their individual positions and the appellate court to decide the issues without the judges’ active participation. When judges actively participate in the appeal of their judgment, they, in a way, cease to be judicial and have become adversarial instead.”70 22. Ledesma v. Court of Appeals, 541 SCRA 444 (2007) Is it part of the guarantee of due process before administrative agencies which oversee certain professions that there must first be a complainant before they could investigate and eventually take back a license that might have been irregularly obtained? In this case the Court said no, not necessarily. “As opposed to a regular trial court, an administrative agency, vested with quasi-judicial functions, may investigate an irregularity on its own initiative. Particularly in the instant case, the overriding considerations of public safety warranted the investigation of the falsification of the subject ATO-AEB certification, which allowed petitioner to undergo training despite his lack of qualifications.” And, as reminder about the proper scope of judicial review of administrative determinations, the Court said: “In reviewing administrative decisions of the executive branch of the government, the findings of facts made therein are to be respected so long as they are supported by substantial evidence. Hence, it is not for the reviewing court to weigh the conflicting evidence, determine the credibility of witnesses, or otherwise substitute its judgment for that of the administrative agency with respect to the sufficiency of evidence. Administrative decisions in matters within the executive jurisdiction can only be set aside on proof of gross abuse of discretion, fraud, or error of law. These principles negate the power of the reviewing court to re-examine the sufficiency of the evidence in an administrative case as if originally instituted therein, and do not authorize the court to receive additional evidence that was not Recoletos Law Center submitted to the administrative agency concerned.”

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For a time the Court has been saying in some cases that administrative cases against judges71 must 69

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“A penalty in which the school is allowed to exclude or drop the name of the erring pupil or student from the school rolls for being undesirable, and transfer credentials immediately issued.” (Manual of Regulations for Private Schools [1992]) 70

In National Appellate Board (NAB) of the National Police Commission (NAPOLCOM) v. Mamauag, 466 SCRA 624 (2005), the Court held: “[T]he government party that can appeal is not the disciplining authority or tribunal which previously heard the case and imposed the penalty of demotion or dismissal from the service. The government party appealing be one that is prosecuting the A Library Of Liberties vis-à-vis An Arsenal Ofmust Arms administrative case against the respondent. Otherwise, an anomalous situation will result where the disciplining authority or tribunal hearing the case, instead of being impartial and detached, becomes an active participant in prosecuting the respondent.” 71

See, for instance, Alcuizar v. Carpio, 529 SCRA 216 (2007) and Tan v. Pacuribot, 540 SCRA 246 (2007), which were promulgated only four months apart – 7 August and 14 December. Alcuizar demanded proof beyond reasonable doubt, while Tan made reference only

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be substantiated by proof beyond reasonable doubt though in some other cases it would refer to mere substantial evidence. In Macias, the Court came up with this clarificatory pronouncement: “[M]embers of the judiciary are not a class of their own, sui generis, in the field of public service as to require a higher degree of proof for the administrative cases filed against them other than, perhaps, the fact that because of the nature of the responsibility judges have, they are required to live up to a higher standard of integrity, probity and morality. When we dismiss a public officer or employee from his position or office for the commission of a grave offense in connection with his office, we merely require that the complainant prove substantial evidence. When we disbar a disgraceful lawyer, we require that complainant merely prove a clear preponderance of evidence to establish liability. There appears no compelling reason to require a higher degree of proof when we deal with cases filed against judges.” 24. Carag v. National Labor Relations Commission, 520 SCRA 28 (2007) Do corporate officers incur personal liability in closures of establishment without the required onemonth notice to the employees? “The failure to give notice is not an unlawful act because the law does not define such failure as unlawful. Such failure to give notice is a violation of procedural due process but does not amount to an unlawful or criminal act. Such procedural defect is called illegal dismissal because it fails to comply with mandatory procedural requirements, but it is not illegal in the sense that it constitutes an unlawful or criminal act.” So what does the foregoing mean? “For a wrongdoing to make a director personally liable for debts of the corporation, the wrongdoing approved or assented to by the director must be a patently unlawful act. Mere failure to comply with the notice requirement of labor laws on company closure or dismissal of employees does not amount to a patently unlawful act. Patently unlawful acts are those declared unlawful by law which imposes penalties for commission of such unlawful acts. There must be a law declaring the act unlawful and penalizing the act.” Article 283 of the Labor Code, requiring a one-month prior notice to employees and the Department of Labor and Employment before any permanent closure of a company, does not state that non-compliance with the notice is an unlawful act punishable under the Code. There is no provision in any other Article of the Labor Code declaring failure to give such notice an unlawful act and providing for its penalty. In short, no personal liability. 25. White Light Corporation v. City of Manila, 576 SCRA 416 (2009) Following City of Manila v. Laguio, 455 SCRA 308 (2005), in which the Court invalidated an ordinance which provided for the phasing out of motels and similar establishments in the Ermita-Malate are, the Court again rebuffed the City in the latter’s continuing fight crusade against the practices of motels and similar establishments in offering short time admissions and wash-up rate schemes, a case presenting an instance of balancingRecoletos between policeLaw powerCenter and substantive due process. “The apparent goal of the Ordinance to minimize if not eliminate the use of the covered Bar isReview 2012 establishments for illicit sex, prostitution, drug use and alike. These goals, by themselves, are unimpeachable and certainly fall within the ambit of the police power of the State. Yet the desirability of these ends do not sanctify any and all means for their achievement. Those means must align with the Constitution, and our emerging sophisticated analysis of its guarantees to the people. The Bill of Rights stands as a rebuke to the seductive theory of Macchiavelli, and, sometimes even, the political majorities

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Arnado v. Suarin, 467 SCRA 402 (2005), even had to call for the application of the quantum of proof beyond reasonable doubt in regard to administrative cases involving judicial employees. Said the Court: “Administrative proceedings against judicial employees are by nature, highly penal in character and are to be governed by the rules applicable to criminal cases. The quantum of proof required to support the administrative charges should thus be more substantial and they must be proven beyond reasonable doubt.”

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animated by his cynicism.” In the process of deciding against the City, the Court gave a lecture on the standards of review: “The general test of the validity of an ordinance on substantive due process grounds is best tested when assessed with the evolved footnote 4 test laid down by the U.S. Supreme Court in U.S. v. Carolene Products. Footnote 4 of the Carolene Products case acknowledged that the judiciary would defer to the legislature unless there is a discrimination against a ‘discrete and insular’ minority or infringement of a ‘fundamental right.’ Consequently, two standards of judicial review were established: 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. A third standard, denominated as heightened or immediate scrutiny, was later adopted by the U.S. Supreme Court for evaluating classifications based on gender and legitimacy. . . . While the test may have first been articulated in equal protection analysis, it has in the United States since been applied in all substantive due process cases as well.” Further expounding, the Court said: “In terms of judicial review of statutes or ordinances, strict scrutiny refers to the standard for determining the quality and the amount of governmental interest brought to justify the regulation of fundamental freedoms. Strict scrutiny is used today to test the validity of laws dealing with the regulation of speech, gender, or race as well as other fundamental rights as expansion from its earlier applications to equal protection. The United States Supreme Court has expanded the scope of strict scrutiny to protect fundamental rights such as suffrage, judicial access and interstate travel.” Then, after noting that “[t]he rights at stake herein fall within the same fundamental rights to liberty which we upheld in City of Manila v. Hon. Laguio, Jr.,” the Court proceeded to hold that “the Ordinance prevents the lawful uses of a wash rate depriving patrons of a product and the petitioners of lucrative business ties in with another constitutional requisite for the legitimacy of the Ordinance as a police power measure. It must appear that the interests of the public generally, as distinguished from those of a particular class, require an interference with private rights and the means must be reasonably necessary for the accomplishment of the purpose and not unduly oppressive of private rights. It must also be evident that no other alternative for the accomplishment of the purpose less intrusive of private rights can work. More importantly, a reasonable relation must exist between the purposes of the measure and the means employed for its accomplishment, for even under the guise of protecting the public interest, personal rights and those pertaining to private property will not be permitted to be arbitrarily invaded. Lacking a concurrence of these requisites, the police measure shall be struck down as an arbitrary intrusion into private rights. ” So what does it all lead to? What is the long and short of it? “[I]ndividual rights may be adversely affected only to the extent that may fairly be required by the legitimate demands of public interest or public welfare. The State is a leviathan that must be restrained from needlessly intruding into the lives Recoletos Lawmay Center of its citizens. However well-intentioned the Ordinance be, it is in effect an arbitrary and whimsical intrusion into the rights of the establishments as well as their patrons. The Ordinance needlessly restrains Bar Review the operation of the businesses of the petitioners as well as2012 restricting the rights of their patrons without sufficient justification. The Ordinance rashly equates wash rates and renting out a room more than twice a day with immorality without accommodating innocuous intentions.”

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26. Betoy v. Board of Directors, National Power Corporation, 658 SCRA 420 (2011) Where the employee retires and meets the eligibility requirements, he acquires a vested right to benefits that is protected by the due clause. RetireesAn enjoy a protected A Library Ofprocess Liberties vis-à-vis Arsenal Of property Arms interest whenever they acquire a right to immediate payment under pre-existing law. Thus, a pensioner acquires a vested right to benefits that have become due as provided under the terms of the public employees’ pension statute. No law can deprive such person of his pension rights without due process of law, that is, without

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notice and opportunity to be heard. Verily, when an employee has complied with the statutory requirements to be entitled to receive his retirement benefits, his right to retire and receive what is due him by virtue thereof becomes vested and may not thereafter be revoked or impaired. The Court declared that if Section 63 of the EPIRA law is misinterpreted as proscribing payment of retirement benefits under the GSIS law, it would be unconstitutional as it would be violative of Section 10, Article III of the 1987 Constitution or the provision on non-impairment of contracts. 27. Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, 632 SCRA 146 (2010) In Romualdez v. Sandiganbayan, 435 SCRA 371 (2004), Justice Tinga, all by his lonesome, wrote a spirited dissent to the majority’s pronouncement that the void-for-vagueness doctrine only has application to free speech cases. To him, it was more a dictate of due process. That debate continued in Romualdez v. Commission on Elections, 553 SCRA 370 (2008), but this time he was joined by the Chief Justice and Justices Austria-Martinez, Carpio Morales, and, Nachura. Justice Carpio himself came up with a separate dissenting opinion, along the same lines as Justice Tinga’s. In Southern Hemisphere, the Court finally clarified without much debate the apparent confusion brought about the mix-up in regard to facial challenges, overbreadth doctrine, and the void-forvagueness doctrine. The Court lectured thus: “The confusion apparently stems from the interlocking relation of the overbreadth and vagueness doctrines as grounds for a facial or as-applied challenge against a penal statute (under a claim of violation of due process of law) or a speech regulation (under a claim of abridgement of the freedom of speech and cognate rights). To be sure, the doctrine of vagueness and the doctrine of overbreadth do not operate on the same plane. A statute or act suffers from the defect of vagueness when it lacks comprehensible standards that men of common intelligence must necessarily guess at its meaning and differ as to its application. It is repugnant to the Constitution in two respects: (1) it violates due process for failure to accord persons, especially the parties targeted by it, fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle. The overbreadth doctrine, meanwhile, decrees that a governmental purpose to control or prevent activities constitutionally subject to state regulations may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms. As distinguished from the vagueness doctrine, the overbreadth doctrine assumes that individuals will understand what a statute prohibits and will accordingly refrain from that behavior, even though some of it is protected.” Further on esoteric learning, the Court said: “A “facial” challenge is likewise different from an “as-applied” challenge. Distinguished from an as-applied challenge which considers only extant facts Recoletos Law Center affecting real litigants, a facial invalidation is an examination of the entire law, pinpointing its flaws and defects, not only on the basis of its actual operation to the parties, but also on the assumption or Bar Review 2012 prediction that its very existence may cause others not before the court to refrain from constitutionally protected speech or activities.” Any difference between speech cases and penal laws in regard to these concepts? Yes, a litigant cannot successfully mount a facial challenge against a criminal statute on either vagueness or overbreadth grounds. “The allowance of a facial challenge in free speech cases is justified by the aim to avert the ‘chilling effect’ on protected speech, the exercise of which should not at all times be abridged. As reflected earlier, this rationale is inapplicable to plain penal statutes that generally bear A Library Of Liberties vis-à-vis An Arsenal Of Arms an ‘in terrorem effect’ in deterring socially harmful conduct.”

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cases. By its nature, the overbreadth doctrine has to necessarily apply a facial type of invalidation in order to plot areas of protected speech, inevitably almost always under situations not before the court, that are impermissibly swept by the substantially overbroad regulation. Otherwise stated, a statute cannot be properly analyzed for being substantially overbroad if the court confines itself only to facts as applied to the litigants.” And, one must always remember the high value placed on speech which explains why “[a]ttacks on overly broad statutes are justified by the ‘transcendent value to all society of constitutionally protected expression.’” On the facts of the case, the Court concluded that since a penal statute may only be assailed for being vague as applied to petitioners, a limited vagueness analysis of the definition of “terrorism” in RA 9372 is legally impermissible absent an actual or imminent charge against them. Again, harking back to American experience, it observed: “American jurisprudence instructs that ‘vagueness challenges that do not involve the First Amendment must be examined in light of the specific facts of the case at hand and not with regard to the statute’s facial validity.’ For more than 125 years, the US Supreme Court has evaluated defendants’ claims that criminal statutes are unconstitutionally vague, developing a doctrine hailed as ‘among the most important guarantees of liberty under law.’” On the other hand, “[i]n this jurisdiction, the void-for-vagueness doctrine asserted under the due process clause has been utilized in examining the constitutionality of criminal statutes.” But does not R.A. No. 9372 actually regulate speech, thus justifying a facial analysis? The Court said no. “In insisting on a facial challenge on the invocation that the law penalizes speech, petitioners contend that the element of ‘unlawful demand’ in the definition of terrorism must necessarily be transmitted through some form of expression protected by the free speech clause. The argument does not persuade. What the law seeks to penalize is conduct, not speech. Before a charge for terrorism may be filed under RA 9372, there must first be a predicate crime actually committed to trigger the operation of the key qualifying phrases in the other elements of the crime, including the coercion of the government to accede to an ‘unlawful demand.’ Given the presence of the first element, any attempt at singling out or highlighting the communicative component of the prohibition cannot recategorize the unprotected conduct into a protected speech. Petitioners’ notion on the transmission of message is entirely inaccurate, as it unduly focuses on just one particle of an element of the crime. Almost every commission of a crime entails some mincing of words on the part of the offender like in declaring to launch overt criminal acts against a victim, in haggling on the amount of ransom or conditions, or in negotiating a deceitful transaction.” In fine, “[u]tterances not elemental but inevitably incidental to the doing of the criminal conduct alter neither the intent of the law to punish socially harmful conduct nor the essence of the whole act as conduct and not speech. This holds true a fortiori in the present case where the expression figures only as an inevitable incident of making the element of coercion perceptible.” In other words: Recoletos Law Center “Certain kinds of speech have been treated as unprotected conduct, because they merely evidence a prohibited conduct. Since speech is not involved here, the Court cannot heed the call for a facial Bar Review 2012 analysis.” Finally, to make sure that there is no possible conflict with what the U.S. Supreme Court said in a recent case, Holder v. Humanitarian Law Project, 561 U.S. ___ (2010), the Court explained that the former allowed the pre-enforcement review of a criminal statute, challenged on vagueness grounds, since the therein plaintiffs there faced a “credible threat of prosecution” and “should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.” In Southern Hemisphere, A Library Libertiesneither vis-à-vis Arsenal Ofnor Arms however, the “petitioners haveOfestablished an An actual charge a credible threat of prosecution under RA 9372. Even a limited vagueness analysis of the assailed definition of ‘terrorism’ is thus legally impermissible.”

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Then this parting admonition: “The Court reminds litigants that judicial power neither contemplates speculative counseling on a statute’s future effect on hypothetical scenarios nor allows the courts to be used as an extension of a failed legislative lobbying in Congress.” 28. Securities and Exchange Commission v. GMA Network, Inc., 575 SCRA 113 (2008) Exorbitant and unreasonable filing fees violate due process. “A filing fee, by legal definition, is that charged by a public official to accept a document for processing. The fee should be just, fair, and proportionate to the service for which the fee is being collected, . . .” The due process clause permits the courts to determine whether the regulation imposing such fees is reasonable and within the bounds of its rate-fixing authority and to strike it down when it arbitrarily infringes on a person’s right to property.

D. EQUAL PROTECTION The guarantee of equal protection is no argument for absolute equality, for what it only assures is legal equality. It would hardly be fair nor just that people who are not equally circumstanced be given the same treatment, otherwise, it would be as offensive to the notion as the very idea of unequal treatment among equals. Inherent therefore in the application of the Equal Protection Clause is the need for valid classifications so as to determine who or what could properly be grouped together for particular treatment, and excluding all others. As the Court intoned in Mirasol v. Department of Public Works and Highways, 490 SCRA 318 (2006), “[t]o begin with, classification by itself is not prohibited,” and then went on to state that “[n]ot all motorized vehicles are created equal.” In this regard, the classification must be related to the very purpose of the law and that there should be substantial distinctions which make for real differences. Gender may be relevant in regard to certain classifications but not in others. Age, legitimacy, academic performance, courses of study, office and status, and other bases for classification may make for some valid differences at times, but not so under other situations and climes, and so on. And, what may be constitutional when seen from one perspective may not be so from another vantage point.72 As for you taking the Bar exams, consider yourself not just anyone. While you are like your fellow examinees, you are still different from everyone else. And if you’re good enough, you may even end up as a class by yourself.73 1. Pimentel III v. Commission on Elections En Banc Sitting as the National Board of Canvassers, 548 SCRA 169 (2008) Would there be violation of theRecoletos equal protection clauseCenter if a candidate is not allowed to question the Law election officials involved in the canvass proceedings in one province even as he is allowed to do so for other provinces or districts? The Court no. The point Barsaid Review 2012of reference should be whether other candidates are allowed to do so while he is not, such that he may validly complain of others being given undue favor, while he is the only one unjustly discriminated against.

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See Central Bank Employees Association, Inc. v. Bangko Sentral ng Pilipinas, 446 SCRA 299 (2004)

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“The equal protection clause exists to prevent undue favor or privilege. It is intended to eliminate discrimination and oppression based on inequality. Recognizing the existence of real differences among men, the equal protection clause does not demand absolute equality. It merely requires that all persons shall be treated alike, under like circumstances and conditions, both as to the privileges conferred and liabilities enforced.” Here, the Court said that the petitioner was not able to duly establish to the satisfaction of this Court that she and Velasquez were indeed similarly situated, i.e., that they committed identical acts for which they were charged with the violation of the same provisions of the NIRC, and that they presented similar arguments and evidence in their defense, yet they were treated differently. “Furthermore, that the Prosecution Attorney dismissed what were supposedly similar charges against Velasquez did not compel Prosecution Attorney Torrevillas to rule the same way on the charges against petitioner. In People v. Dela Piedra, this Court explained that: ‘The prosecution of one guilty person while others equally guilty are not prosecuted, however, is not, by itself, a denial of the equal protection of the laws. Where the official action purports to be in conformity to the statutory classification, an erroneous or mistaken performance of the statutory duty, although a violation of the statute, is not without more a denial of the equal protection of the laws. The unlawful administration by officers of a statute fair on its face, resulting in its unequal application to those who are entitled to be treated alike, is not a denial of equal protection unless there is shown to be present in it an element of intentional or purposeful discrimination.’” In fine, “While all persons accused of crime are to be treated on a basis of equality before the law, it does not follow that they are to be protected in the commission of crime. It would be unconscionable, for instance, to excuse a defendant guilty of murder because others have murdered with impunity. The remedy for unequal enforcement of the law in such instances does not lie in the exoneration of the guilty at the expense of society * * *. Protection of the law will be extended to all persons equally in the pursuit of their lawful occupations, but no person has the right to demand protection of the law in the commission of a crime.”74 3. Nicolas v. Romulo, 578 SCRA 438 (2009) If foreign troops charged with the commission of crimes in the country are treated differently from other persons similarly charged, is there violation of the equal protection clause? Here, the petitioners argue that to allow the transfer of custody of an accused foreign soldier to the custody of a foreign power is to provide for a different rule of procedure for that accused. The Court said there is no violation of the equal protection clause “because there is a substantial basis for a different treatment of a member of a foreign military armed forces allowed to enter our territory and all other accused. The rule in international law is that a foreign armed forces allowed to enter one’s territory is immune from local jurisdiction, except to the extent agreed upon. The Status of Recoletos Law Center Forces Agreements involving foreign military units around the world vary in terms and conditions, according to the situation of the parties involved, and reflect their bargaining power. But the principle Bar Review 2012 remains, i.e., the receiving State can exercise jurisdiction over the forces of the sending State only to the extent agreed upon by the parties.”

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4. Serrano v. Gallant Maritime Services, Inc., 582 SCRA 254 (2009) At issue here is the constitutionality of the last clause of the 5th paragraph of §10 R.A. No. 8042 (Migrant Workers and Overseas Filipinos Act of 199). The 5th paragraph provides: “In case of A Library Of Liberties vis-à-vis An Arsenal Of Arms 74

Earlier, in Reyes v. Pearlbank Securities, Inc., 560 SCRA 518 (2008), the Court held: “While the right to equal protection of the law requires that litigants are treated in an equal manner by giving them the same rights under similar circumstances, it may not be perversely used to justify desistance by the authorities from prosecution of a criminal case, just because not all of those who are probably guilty thereof were charged.”

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termination of overseas employment without just, valid or authorized cause as defined by law or contract, the workers shall be entitled to the full reimbursement of his placement fee with interest of twelve percent (12%) per annum, plus his salaries for the unexpired portion of his employment contract or for three (3) months for every year of the unexpired term, whichever is less.” Does this violate the guarantee of equal protection among OFWs? Yes. The Court noted that “[t]he enactment of the subject clause in R.A. No. 8042 introduced a differentiated rule of computation of the money claims of illegally dismissed OFWs based on their employment periods, in the process singling out one category whose contracts have an unexpired portion of one year or more and subjecting them to the peculiar disadvantage of having their monetary awards limited to their salaries for 3 months or for the unexpired portion thereof, whichever is less, but all the while sparing the other category from such prejudice, simply because the latter’s unexpired contracts fall short of one year.” The Court further observed that “the subject clause creates a sub-layer of discrimination among OFWs whose contract periods are for more than one year: those who are illegally dismissed with less than one year left in their contracts shall be entitled to their salaries for the entire unexpired portion thereof, while those who are illegally dismissed with one year or more remaining in their contracts shall be covered by the subject clause, and their monetary benefits limited to their salaries for three months only.” From there, the Court went on to hold: “The Court concludes that 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. There being a suspect classification involving a vulnerable sector protected by the Constitution, the Court now subjects the classification to a strict judicial scrutiny, and determines whether it serves a compelling state interest through the least restrictive means.” So, is there any compelling state interest? “Assuming that, as advanced by the OSG, the purpose of the subject clause is to protect the employment of OFWs by mitigating the solidary liability of placement agencies, such callous and cavalier rationale will have to be rejected. There can never be a justification for any form of government action that alleviates the burden of one sector, but imposes the same burden on another sector, especially when the favored sector is composed of private businesses such as placement agencies, while the disadvantaged sector is composed of OFWs whose protection no less than the Constitution commands. The idea that private business interest can be elevated to the level of a compelling state interest is odious.” Then, on the use of the standards of review, the Court noted: “Under American jurisprudence, strict Recoletos Law Center judicial scrutiny is triggered by suspect classifications based on race or gender but not when the classification is drawn along income categories. It is different in the Philippine setting. . . . ‘Admittedly, Bar Review 2012 the view that prejudice to persons accorded special protection by the Constitution requires a stricter judicial scrutiny finds no support in American or English jurisprudence. Nevertheless, these foreign decisions and authorities are not per se controlling in this jurisdiction. At best, they are persuasive and have been used to support many of our decisions. We should not place undue and fawning reliance upon them and regard them as indispensable mental crutches without which we cannot come to our own decisions through the employment of our own endowments. . . . ‘But if the challenge to the statute is A Library Of Liberties An Arsenal Of Arms premised on the denial of a fundamental right, orvis-à-vis the perpetuation of prejudice against persons favored by the Constitution with special protection, judicial scrutiny ought to be more strict. A weak and watered down view would call for the abdication of this Court’s solemn duty to strike down any law

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repugnant to the Constitution and the rights it enshrines.’”75 5. League of Cities of the Philippines (LCP) v. Commission on Elections, 571 SCRA 263 (2008), 608 SCRA 636 (2009), 628 SCRA 819 (2010), 643 SCRA 149 (2011), 648 SCRA 344 (2011), and 652 SCRA 798 (2011) When the 11th Congress76 adjourned in June 2001, there were on deck bills to convert 24 municipalities into cities but which were never enacted into law. In the meantime, R.A. 9009 became law, effective on 30 June 2001.This law amended the Local Government Code by increasing the annual income requirement for conversion of municipalities to cities from P =20 Million to P =100 Million. After th the effectivity of RA 9009, the House of Representatives of the 12 Congress adopted Joint Resolution No. 29, which sought to exempt from the P =100 million income requirement in RA 9009 the 24 municipalities whose cityhood bills were not approved in the 11th Congress. However, the 12th77 Congress ended without the Senate approving Joint Resolution No. 29. During the 13th Congress,78 the House of Representatives re-adopted Joint Resolution No. 29 as Joint Resolution No. 1 and forwarded it to the Senate for approval. However, the Senate again failed to approve the Joint Resolution. The 16 municipalities then filed, through their respective sponsors, individual cityhood bills, which bills contained a common provision exempting all the 16 municipalities from the P =100 million income requirement in RA 9009. Both Houses of Congress approved the cityhood bills, which bills lapsed into law (Cityhood Laws) on various dates from March to July 2007 without the President’s signature. In questioning the validity of their enactment, one of the issues raised is about alleged violation of the Equal Protection Clause. In the original decision, the Court said the Equal Protection Clause was violated. An exemption based solely on the fact that the 16 municipalities had cityhood bills pending in the 11th Congress when RA 9009 was enacted does not constitute a valid classification between those entitled and those not entitled to exemption from the P =100 million income requirement. To be valid, the classification in the present case must be based on substantial distinctions, rationally related to a legitimate government objective which is the purpose of the law, not limited to existing conditions only, and applicable to all similarly situated. There is no substantial distinction between municipalities with pending cityhood bills in the 11th Congress and municipalities that did not have pending bills. The mere pendency of a cityhood bill in the 11th Congress is not a material difference to distinguish one municipality from another for the purpose of the income requirement. The classification criterion – mere pendency of a cityhood bill in the 11th Congress – is not rationally related to the purpose of the law which is to prevent fiscally non-viable municipalities from converting into cities. Further, the fact of pendency of a cityhood bill in the 11th Congress limits the exemption to a specific condition existing at the time of passage of RA 9009, which specific condition will never happen again. This violates the requirement that a valid classification Recoletos Law Center must not be limited to existing conditions only. The exemption provision in the Cityhood Laws gives the 16 municipalities a unique advantage based on an arbitrary date – the filing of their cityhood bills Bar Review 2012 before the end of the 11th Congress – as against all other municipalities that want to convert into cities

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Congress seems to have wittingly or unwittingly defied the Supreme Court in enacting R.A. No. 10222 (approved on 8 March 2010). Section 7 of the new law, amended §10, ¶5 of R.A. 8042, by writing the same language invalidated in Serrano, viz: “In case of termination of overseas employment without just, valid or authorized cause as defined by law or contract, or any unauthorized deductions from the migrant worker's salary, the worker shall be entitled to the full reimbursement if his placement fee and the deductions made with interest at twelve percent (12%) per annum, plus his salaries for the unexpired portion of his employment A Library Of of Liberties AnisArsenal Of Arms contract or for three (3) months for every year the unexpiredvis-à-vis term, whichever less.” 76

June 1998 to June 2001.

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June 2001 to June 2004.

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June 2004 to June 2007.

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after the effectivity of RA 9009. Furthermore, limiting the exemption only to the 16 municipalities violates the requirement that the classification must apply to all similarly situated. Subsequently, the following year, when the Court reconsidered its earlier ruling (which had already become final and and entry of judgment made)79 the following year, it held, among others, on equal protection issue, that this particular constitutional protection extends likewise to natural or artificial persons, but with regard to artificial persons are concerned, they are entitled to protection only in so far as their property is concerned. Accordingly, the petitioner LCP and the intervenors cannot plausibly invoke the equal protection clause, precisely because no deprivation of property results by virtue of the enactment of the cityhood laws. “The LCP’s claim that the IRA of its member-cities will be substantially reduced on account of the conversion into cities of the respondent LGUs would not suffice to bring it within the ambit of the constitutional guarantee. Indeed, it is presumptuous on the part of the LCP member-cities to already stake a claim on the IRA, as if it were their property, as the IRA is yet to be allocated. For the same reason, the municipalities that are not covered by the uniform exemption clause in the cityhood laws cannot validly invoke constitutional protection. For, at this point, the conversion of a municipality into a city will only affect its status as a political unit, but not its property as such.” On the requisites for valid classification, the Court found that all of them were met. The favorable treatment accorded the sixteen (16) municipalities by the cityhood laws rests on substantial distinction. “Indeed, respondent LGUs, which are subjected only to the erstwhile PhP 20 million income criterion instead of the stringent income requirement prescribed in RA 9009, are substantially different from other municipalities desirous to be cities. Looking back, we note that respondent LGUs had pending cityhood bills before the passage of RA 9009. There lies part of the tipping difference.” They were qualified cityhood applicants before the enactment of RA 9009 but because of events they had absolutely nothing to do with, a spoiler in the form of RA 9009 supervened. Thus, to impose on them the much higher income requirement after what they have gone through would appear to be indeed unfair. The peculiar conditions of respondent LGUs provide sufficient grounds for legislative classification. “A law can be violative of the constitutional limitation only when the classification is without reasonable basis.” The Court also found the classification to be germane to the purpose of the law. The exemption of 79

Here, it is interesting how the Court arrived at its basis for lifting the entry of judgment, an excellent lesson in imaginative and creative legal reasoning. It said, inter alia: “The 6-6 vote on the motion to reconsider the Resolution of March 31, 2009, which denied the initial motion on the sole ground that “the basic issues had already been passed upon” betrayed an evenly divided Court on the issue of whether or not the underlying Decision of November 18, 2008 had indeed passed upon the issues raised in the motion for reconsideration of the said decision. But at the end of the day, the single issue that matters and the vote that really counts really turn on the constitutionality of the cityhood laws. And be it remembered that the inconclusive 6-6 tie vote reflected in the April 28, 2009 Resolution was the last vote on the issue of whether or not the cityhood laws infringe the Constitution. Accordingly, the motions of the respondent LGUs, in light of the 6-6 vote, should be deliberated anew until the required concurrence on the issue of the validity or invalidity of the laws in question is, on the merits, secured.

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“On the postulate then that first, the finality of the November 18, 2008 Decision has yet to set in, the issuance of the precipitate entry of judgment notwithstanding, and second, the deadlocked vote on the second motion for reconsideration did not definitely settle the constitutionality of the cityhood laws, the Court is inclined to take another hard look at the underlying decision. Without belaboring in their smallest details the arguments for and against the procedural dimension of this disposition, it bears to stress that the Court has the power to suspend its own rules when the ends of justice would be served thereby. In the performance of their duties, courts should not A Library Liberties vis-à-vis Arsenal be shackled by stringent rules which wouldOf result in manifest injustice. Rules ofAn procedure are onlyOf toolsArms crafted to facilitate the attainment of justice. Their strict and rigid application must be eschewed, if they result in technicalities that tend to frustrate rather than promote substantial justice. Substantial rights must not be prejudiced by a rigid and technical application of the rules in the altar of expediency. When a case is impressed with public interest, a relaxation of the application of the rules is in order. Time and again, this Court has suspended its own rules or excepted a particular case from their operation whenever the higher interests of justice so require.”

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respondent LGUs/municipalities from the P =100 million income requirement was meant to reduce the inequality occasioned by the passage of the amendatory RA 9009. From another perspective, the exemption was unquestionably designed to insure that fairness and justice would be accorded respondent LGUs. What were then the cityhood bills covering respondent LGUs were part and parcel of the original 57 conversion bills filed in the 11th Congress, 33 of those became laws before the adjournment of that Congress. The then bills of the challenged cityhood laws were not acted upon due, inter alia, to the impeachment of then President Estrada, the related jueteng scandal investigations conducted before, and the EDSA events that followed the aborted impeachment. “The enactment of the cityhood laws was in a real sense an attempt on the part of Congress to address the inequity dealt the respondent LGUs. These laws positively promoted the equality and eliminated the inequality, doubtless unintended, between respondent municipalities and the thirty-three (33) other municipalities whose cityhood bills were enacted during the 11th Congress.” And in this regard, the Court noted that “to deny respondent LGUs/municipalities the same rights and privileges accorded to the 33 other municipalities when, at the outset they were similarly situated, is tantamount to denying the former the protective mantle of the equal protection clause. In effect, petitioners and petitioners-in-intervention are creating an absurd situation in which an alleged violation of the equal protection clause of the Constitution is remedied by another violation of the same clause. The irony is not lost to the Court.” With regard to alleged applicability to existing conditions only, the Court said it is not so. “Then too the non-retroactive effect of RA 9009 is not limited in application only to conditions existing at the time of its enactment. It is intended to apply for all time, as long as the contemplated conditions obtain. To be more precise, the legislative intent underlying the enactment of RA 9009 to exclude would-be-cities from the = P100 million criterion would hold sway, as long as the corresponding cityhood bill has been filed before the effectivity of RA 9009 and the concerned municipality qualifies for conversion into a city under the original version of Sec. 450 of the LGC of 1991. Viewed in its proper light, the common exemption clause in the cityhood laws is an application of the non-retroactive effect of RA 9009 on the cityhood bills. It is not a declaration of certain rights, but a mere declaration of prior qualification and/or compliance with the non-retroactive effect of RA 9009.” In fine, “the uniform exemption clause would apply to municipalities that had pending cityhood bills before the passage of RA 9009 and were compliant with then Sec. 450 of the LGC of 1991, which prescribed an income requirement of P =20 million. It is hard to imagine, however, if there are still municipalities out there belonging in context to the same class as the sixteen (16) respondent LGUs. Municipalities that cannot claim to belong to the same class as the 16 cannot seek refuge in the cityhood laws.” Then the Court reverted to its original decision in 2010, only to reconsider anew in 2011. This last time, perhaps, the Court said: “Verily, the determination of the existence of substantial distinction with Recoletos Law Center respect to respondent municipalities does not simply lie on the mere pendency of their cityhood bills th during the 11 Congress. This Court sees the bigger picture. The existence of substantial distinction with Bar Review 2012Laws is measured by the purpose of the respect to respondent municipalities covered by the Cityhood law, not by R.A. No. 9009, but by the very purpose of the LGC, as provided in its Section 2 (a), . . . Indeed, substantial distinction lies in the capacity and viability of respondent municipalities to become component cities of their respective provinces. Congress, by enacting the Cityhood Laws, recognized this capacity and viability of respondent municipalities to become the State’s partners in accelerating economic growth and development in the provincial regions, which is the very thrust of the LGC, th manifested by the pendency of their cityhood bills during the Congress their relentless pursuit A Library Of Liberties vis-à-vis An11 Arsenal Of and Arms for cityhood up to the present. Truly, the urgent need to become a component city arose way back in the 11th Congress, and such condition continues to exist.” In other words, “Congress merely recognized the capacity and readiness of respondent municipalities to become component cities of their respective

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provinces.” How about the alleged reduction in petitioners’ property – a “just share” in the IRA: “To be sure, petitioners are entitled to a ‘just share,’ not a specific amount. But the feared reduction proved to be false when, after the implementation of the Cityhood Laws, their respective shares increased, not decreased.” In any event, “What these petitioner cities were stating as a reduction of their respective IRA shares was based on a computation of what they would receive if respondent municipalities were not to become component cities at all. Of course, that would mean a bigger amount to which they have staked their claim. After considering these, it all boils down to money and how much more they would receive if respondent municipalities remain as municipalities and not share in the 23% fixed IRA from the national government for cities.” And, in this regard, the Court noted: “It is like the elder siblings wanting to kill the newly-borns so that their inheritance would not be diminished.” On 12 April 2011, the Court decreed “the Ad Cautelam Motion for Reconsideration (of the Decision dated 15 February 2011) is denied with finality.” (Whewww, after four different decisions in four years, hopefully we now see an end to the zigzagging route to the final destination.)80 6. Quinto v. Commission on Elections, 606 SCRA 258 (2009) and 613 SCRA 385 (2010) Here the issue is about the alleged discrimination against appointive officials and employees in regard to the effect of the filing of their Certificates of Candidacy (CoCs) – they are deemed immediately resigned while elective officials are not so treated. The Court said: “In considering persons holding appointive positions as ipso facto resigned from their posts upon the filing of their CoCs, but not considering as resigned all other civil servants, specifically the elective ones, the law unduly discriminates against the first class. The fact alone that there is substantial distinction between those who hold appointive positions and those occupying elective posts, does not justify such differential treatment.” It then proceeded to declare that the classification is not germane to the purpose of the law. “The obvious reason for the challenged provision is to prevent the use of a governmental position to promote one’s candidacy, or even to wield a dangerous or coercive influence on the electorate. The measure is further aimed at promoting the efficiency, integrity, and discipline of the public service by eliminating the danger that the discharge of official duty would be motivated by political considerations rather than the welfare of the public. The restriction is also justified by the proposition that the entry of civil servants to the electoral arena, while still in office, could result in neglect or inefficiency in the performance of duty because they would be attending to their campaign rather than to their office work. If we accept these as the underlying objectives of the law, then the assailed provision cannot be constitutionally rescued on the ground of valid classification. Glaringly absent is the requisite that the classification must be germane to the purposes of the law. Indeed, whether one holds an appointive Recoletos Law Center office or an elective one, the evils sought to be prevented by the measure remain. . . . As to the danger of neglect, inefficiency or partisanship in the discharge of the functions of his appointive office, the

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The original Decision on 18 November 2008 was by a 6-5 vote, with four abstentions, while the motion for reconsideration was decided by a vote of 7-5, with 2 abstentions. On the second motion for reconsideration, the votation was evenly split, 6-6, with 3 abstaining.

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On 21 December 2009, the Court voted 6-4 for the reversal of its original decision, with 3 abstentions. (There were then 2 vacancies in the Court.) On 24 August 2010, a new majority of 7 voted for the original decision, while 6 voted against, and 2 took no part. By a new 7-6-2 vote A on 15 February 2011, the table was turned upside down the latestOf majority uphoding the Cityhood laws, Library Of Liberties vis-à-vis Ananew, Arsenal Arms a judgment reiterated by the 12 April 2011 Resolution. So what does one make of all these? Well, for the 2011 Bar Examinations Chairman, Justice Abad, he wrote in his separate concurring opinion to the 15 February 2011 Resolution: “This to me is a healthy sign of democracy at work, the members being blind to the need to conform.”

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inverse could be just as true and compelling. The public officer who files his certificate of candidacy would be driven by a greater impetus for excellent performance to show his fitness for the position aspired for.” On motion for reconsideration, the Supreme Court reversed itself and said that the classification is germane to the purpose of the law. The Court made reference to the “long-standing rule that to remedy an injustice, the Legislature need not address every manifestation of the evil at once; it may proceed ‘one step at a time.’ In addressing a societal concern, it must invariably draw lines and make choices, thereby creating some inequity as to those included or excluded. Nevertheless, as long as ‘the bounds of reasonable choice’ are not exceeded, the courts must defer to the legislative judgment. We may not strike down a law merely because the legislative aim would have been more fully achieved by expanding the class. Stated differently, the fact that a legislative classification, by itself, is underinclusive will not render it unconstitutionally arbitrary or invidious. There is no constitutional requirement that regulation must reach each and every class to which it might be applied; that the Legislature must be held rigidly to the choice of regulating all or none.” “In fine, the assailed Decision would have us ‘equalize the playing field’ by invalidating provisions of law that seek to restrain the evils from running riot.” 7. Biraogo v. Philippine Truth Commission of 2010, 637 SCRA 78 (2010) In this case, the Court held that the Creation of the Truth Commission specifically mandated to investigate reported cases of graft and corruption allegedly committed during the previous (Arroyo) administration without including other past administrations was violative of the guarantee of equal protection. It declared that the “classification must not be based on existing circumstances only, or so constituted as to preclude addition to the number included in the class. It must be of such a nature as to embrace all those who may thereafter be in similar circumstances and conditions. It must not leave out or ‘underinclude’ those that should otherwise fall into a certain classification.” Thus, it struck down Executive Order No. 1. “In this regard, it must be borne in mind that the Arroyo administration is but just a member of a class, that is, a class of past administrations. It is not a class of its own. Not to include past administrations similarly situated constitutes arbitrariness which the equal protection clause cannot sanction. Such discriminating differentiation clearly reverberates to label the commission as a vehicle for vindictiveness and selective retribution.” It further pronounced that “Executive Order No. 1 suffers from arbitrary classification. . . . While reasonable prioritization is permitted, it should not be arbitrary lest it be struck down for being unconstitutional.” The Court also added that it is Recoletos not unaware thatLaw mere Center underinclusiveness is not fatal to the validity of a law under the equal protection clause. “With regard to equal protection claims, a legislature does Bar Review 2012 not run the risk of losing the entire remedial scheme simply because it fails, through inadvertence or otherwise, to cover every evil that might conceivably have been attacked. In Executive Order No. 1, however, there is no inadvertence. That the previous administration was picked out was deliberate and intentional as can be gleaned from the fact that it was underscored at least three times in the assailed executive order. It must be noted that Executive Order No. 1 does not even mention any particular act, event or report to be focused on unlike the investigative commissions created in the past. ‘The equal protection clause isAviolated by Of purposeful andvis-à-vis intentionalAn discrimination.’” Library Liberties Arsenal Of Arms

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E. SEARCHES AND SEIZURES A citizen in a democratic and republican state, where sovereignty resides in the people and all government authority emanates from them, may consider it his birthright to be free from unwarranted and unreasonable intrusions into his life. He would not want to have a Big Brother looking over his shoulders and minding his affairs. The guarantee against unreasonable searches and seizures upholds that expectation of privacy. And, for starters, it requires that before any searches or seizures be had, the same must be, as a general rule, accompanied by a warrant, issued by one who is disinterested and detached from the task of law enforcement. But even in the issuance of such warrants by a judge, the magistrate is not that free to simply issue it for no reason at all or on flimsy grounds. He must have probable cause for the same, which he must determine personally by carefully examining the complainant, his witnesses and other supporting documents for such purpose. Further, reasonableness also goes to the manner of serving and executing it. Accordingly, not because one is armed with a warrant that he would now have the perfect right to simply barge into houses or dwellings like the gestapo. He must abide by the “knock and announce” procedure.81 As much as possible, he must still do it in a civilized manner, unless his life or safety may be in danger, or the evidence would likely be destroyed by any delay. The requirement of a search warrant being a general rule, it necessarily follows that some exceptions would have to be accommodated, exceptions which are better understood when seen in the context in which they developed, such as search incident to a lawful arrest, search of moving vehicles, the plain view doctrine, and, lately, airport searches. In regard to warrantless arrests, there are the in flagrante delicto, “hot pursuit” and escaped-prisoners exceptions. But in considering the things and circumstances relative to the question of whether a search or seizure was in accordance with the Constitution, one must always remember that the touchstone is reasonableness.82 And that is not something cast in rigid and inflexible forms and shapes. “[T]he Fourth Amendment83 does not insist upon bright-line rules. Rather, it recognizes that no single set of legal rules can capture the ever changing complexity of human life.”84 It has also been stated that 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 what is commonly known as John Doe proceedings. Further, private complainants can participate in these proceedings – they may appear, participate and file pleadings in said 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. As for the search warrant itself, the Court said that it is a legal process which Recoletos Law Center 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 85 Review 2012 police weapon, issued under the policeBar power. In regard to anticipatory warrants – where they are applied for even before the contraband is yet to be delivered to the place to be searched – the U.S. Supreme Court declared in United States v. Grubbs,

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This is the American counterpart to Art. III, §2 of the Philippine Constitution.

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547 U.S. 90 (2006): “Because the probable-cause requirement looks to whether evidence will be found when the search is conducted, all warrants are, in a sense, ‘anticipatory.’ In the typical case where the police seek permission to search a house for an item they believe is already located there, the magistrate’s determination that there is probable cause for the search amounts to a prediction that the item will still be there when the warrant is executed.” In that sense, anticipatory warrants are no different in principle from ordinary warrants. They also require the magistrate to determine (1) that it is now probable that (2) contraband, evidence of a crime, or a fugitive will be on the described premises (3) when the warrant is executed. “In other words, for a conditioned anticipatory warrant to comply with the Fourth Amendment’s requirement of probable cause, two prerequisites of probability must be satisfied. It must be true not only that if the triggering condition occurs ‘there is a fair probability that contraband or evidence of a crime will be found in a particular place,’ . . . but also that there is probable cause to believe the triggering condition will occur.” Directly related to the right against unreasonable searches and seizures is the right to privacy. In this regard, the Court said in Sabio v. Gordon, 504 SCRA 704 (2006): “Zones of privacy are recognized and protected in our laws. Within these zones, any form of intrusion is impermissible unless excused by law and in accordance with customary legal process. The meticulous regard we accord to these zones arises not only from our conviction that the right to privacy is a ‘constitutional right’ and ‘the right most valued by civilized men,’ but also from our adherence to the Universal Declaration of Human Rights which mandates that, ‘no one shall be subjected to arbitrary interference with his privacy’ and ‘everyone has the right to the protection of the law against such interference or attacks.’” 1. Bayaca v. Ramos, 577 SCRA 93 (2009) In Talingdan v. Eduarte, 366 SCRA 559 (2001), the judge was found administratively liable for having improvidently issued a warrant as a consequence of letting his criminal docket clerk practically determine the existence of probable cause through the expedient of a checklist. In Bayaca, the judge issued a Warrant of Arrest and Commitment to Final Sentence leading to the incarceration of the convict despite the fact that his earlier decision was modified on appeal, deleting imprisonment as penalty and imposing instead the penalty of fine. In his explanation, he clarified that his issuance of the warrant of arrest was a mistake done in good faith. He added that for almost sixteen (16) years it was the practice in his sala that before acting on a motion it passed through his Clerk of Court who studied the records to determine whether or not to grant it. If it would be granted, the Clerk of Court would then request the stenographer to type the order and thereafter, he would affix his initial for respondent Judge’s signature. Such was the procedure followed in the instant case – and the path taken to that unfortunate mistake. The Court found the judge inexcusably negligent. He was not fined, however, because death snatched him from the claws of punishment. Recoletos Law Center 2. Yao, Sr. v. People, 525 SCRA Bar 108 (2007) Review

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In support of the application for warrants, “[t]he applicant or his witnesses must have personal knowledge of the circumstances surrounding the commission of the offense being complained of. ‘Reliable information’ is insufficient. Mere affidavits are not enough, and the judge must depose in writing the complainant and his witnesses.” And, how are we to know what constitutes probable cause? “As the term implies, ‘probable cause’ is concerned with probability, not absolute or even moral certainty. The standards of judgment are those ofvis-à-vis a reasonably man, the exacting calibrations A Library Of Liberties Anprudent Arsenal Ofnot Arms of a judge after a full blown trial.”

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And, would it be fatal to the establishment of probable cause if the persons who conducted the

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preliminary footwork prior to application for warrant used a fictitious name? “The fact that Oblanca and Alajar used different names in the purchase receipts do not negate personal knowledge on their part. It is a common practice of the law enforcers such as NBI agents during covert investigations to use different names in order to conceal their true identities. This is reasonable and understandable so as not to endanger the life of the undercover agents and to facilitate the lawful arrest or apprehension of suspected violators of the law.” Further, “[t]here is nothing in the provisions of law concerning the issuance of a search warrant which directly or indirectly mandates that the applicant of the search warrant or his witnesses should state in their affidavits the fact that they used different names while conducting undercover investigations, or to divulge such fact during the preliminary examination.” What about searching questions? “The searching questions propounded to the applicant and the witnesses depend largely on the discretion of the judge. Although there is no hard-and-fast rule governing how a judge should conduct his investigation, it is axiomatic that the examination must be probing and exhaustive, not merely routinary, general, peripheral, perfunctory or pro forma. The judge must not simply rehash the contents of the affidavit but must make his own inquiry on the intent and justification of the application.” How about the particularity of description requirement? “The long standing rule is that a description of the place to be searched is sufficient if the officer with the warrant can, with reasonable effort, ascertain and identify the place intended and distinguish it from other places in the community. Any designation or description known to the locality that points out the place to the exclusion of all others, and on inquiry leads the officers unerringly to it, satisfies the constitutional requirement.” In addition, a search warrant may be said to particularly describe the things to be seized when the description therein is as specific as the circumstances will ordinarily allow; or when the description expresses a conclusion of fact not of law by which the warrant officer may be guided in making the search and seizure; or when the things described are limited to those which bear direct relation to the offense for which the warrant is being issued. While it is true that the property to be seized under a warrant must be particularly described therein and no other property can be taken thereunder, yet the description is required to be specific only in so far as the circumstances will ordinarily allow. The law does not require that the things to be seized must be described in precise and minute details as to leave no room for doubt on the part of the searching authorities; otherwise it would be virtually impossible for the applicants to obtain a search warrant as they would not know exactly what kind of things they are looking for.86 Must the property to be seized be owned by the person against whom the warrant is issued? No, not necessarily. “The law does not require that the property to be seized should be owned by the person against whom the search warrants is directed. Ownership, therefore, is of no consequence, and it is sufficient that the person against whom the warrant is directed has control or possession of the property Recoletos Law Center sought to be seized.”

Bar Review 2012in Civil Actions For Infringement of On A.M. No. 02-1-06-SC (Rule on Search and Seizure Intellectual Property Rights), the Court said that it governs only searches and seizures in civil actions for infringement of intellectual property rights – it does not cover criminal violation of Section 155 in relation to Section 170 of Republic Act No. 8293.

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3. Valeroso v. Court of Appeals, 598 SCRA 41 (2009) In this case, the A search purportedly incidentvis-à-vis to arrest was the suspect was taken out Library Of Liberties Anconducted Arsenalafter Of Arms of his room and the police had tied his hands. Thereafter, a revolver with live ammunition was allegedly 86

See People v. Tee, 395 SCRA 419 (2003), where the Court held that the phrase “undetermined amount of marijuana” satisfies the particularity requirement.

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found in a locked cabinet inside the room. Could this qualify as a valid search incident to a lawful arrest? The Court explained that when an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapon that the latter might use in order to resist arrest or effect his escape, or for the protection of the officer, as well as to prevent the concealment or destruction of evidence on the suspect’s person. “[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.” The Court said that the cabinet which was locked could no longer be considered as an “area within his immediate control” because there was no way for him to take any weapon or to destroy any evidence that could be used against him. The Court further added that this “exception should not be strained beyond what is needed to serve its purpose.” Could the warrantless search be justified under the “plain view doctrine”? No, not also. “The ‘plain view doctrine’ may not be used to launch unbridled searches and indiscriminate seizures or to extend a general exploratory search made solely to find evidence of defendant’s guilt. The doctrine is usually applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object.” In regard to the plain view doctrine, the Court also had this to say in United Laboratories, Inc. v. Isip, 461 SCRA 574 (2005): The “plain view doctrine” is not an exception to the warrant. It merely serves to supplement the prior justification – whether it be a warrant for another object, hot pursuit, search as an incident to a lawful arrest or some other legitimate reason for being present, unconnected with a search directed against the accused. The doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges. It is a recognition of the fact that when executing police officers come across immediately incriminating evidence not covered by the warrant, they should not be required to close their eyes to it, regardless of whether it is evidence of the crime they are investigating or evidence of some other crime. As for the immediacy requirement, this means that the executing officer can, at the time of discovery of the object or the facts therein available to him, determine probable cause of the object’s incriminating evidence – to be immediate, probable cause must be the direct result of the officer’s instantaneous sensory perception of the object. The immediately apparent test does not require an unduly high degree of certainty as to the incriminating character of evidence. As to the requirement of inadvertence, it means that the officer must not have known in advance of the location of the evidence and intended to seize it. Further, the immediately apparent aspect is central to the plain view exception. 4. Sony Computer Entertainment, Inc. v. Bright Future Technologies, Inc., 516 SCRA 62 (2007)

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Violation of the Two-Witness Rule in searches and seizures results in quashal of the warrant. The BarofReview 2012 two-witness rule governing the execution search warrant is mandatory to ensure regularity in the execution of the search warrant. Accordingly, the rule is violated where the police were already searching the area when the two (2) barangay tanods who served as witnesses arrived.

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How about security guards? A security guard may not be considered a “lawful occupant” or “a member of the lawful occupant’s family” under Section 8 of Rule 126. 5. Summerville Co. v. Court Appeals, Of 525Arms SCRA 602 (2007) A General LibraryMerchandising Of Liberties vis-à-vis AnofArsenal The Constitution does not provide a blanket prohibition against all searches and seizures – rather, the fundamental protection accorded by the search and seizure clause is that, between persons and the

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police, there must stand the protective authority of a magistrate clothed with the power to issue or refuse such search warrant. The responsibilities of the magistrate do not end with the granting of the warrant, but extends to the custody of the articles seized. Where there is no allegation that the design and/or mark of a particular brand of playing cards is a reproduction, counterfeit, copy, or colorable imitation of another registered mark legally owned by another, there is no crime of trademark infringement that appears to have been committed or perpetrated to warrant the inference that aid playing cards are “subject of the offense” as contemplated by Sec. 4 of Rule 126 of the Rules of Court. The Court also held in this case that, where there is the availability of actual samples, there is no need for the court to take custody of the countless articles seized. There is no law prohibiting the trial court from returning the articles seized before a case is actually filed in court and even before the final determination by the prosecutor or the Department of Justice of whether a case should be filed in court. Also, where the articles seized have already been found not to be the “subject of the offense” and the purpose of presenting them as evidence is no longer served, there is no justification for severely curtailing the rights of a person to his property. To value the privacy of home and person and to afford its constitutional protection against the long reach of the government are no less than to value human dignity – and this privacy must not be disturbed except in the overriding social need, and then only under the stringent procedural rules. 6. Los Angeles County v. Rettele, 550 U.S. 609 (2007) In Wilson v. Layne, 526 U.S. 603 (1999), the occupants of the house complained about the police practice known as “media ride along” where police enter residences serving warrants with the media in tow. In said case the police went in unannounced early one morning, at a time when the two occupants were still in bed. When the husband went down to investigate, he was still in his sleeping attire. Here, in Rettele, it was worse. The policemen surprised the two occupants in bed – naked. And then they were not allowed to immediately put on anything as they were made to stand au naturel for about two minutes. Would this constitute an unreasonable manner of conducting a search? In relation to a fraud and identity-theft crime ring investigation, police secured a warrant to search two houses. They were unaware that the suspects – four African-Americans – had moved out of the house three months earlier and the house had been sold to Rettle who moved in there with his girlfriend and her son – all Caucasians. Accordingly, when the police made the search at around 7:15 one morning, they found in a bedroom two residents who were of a different race than the suspects. The deputies ordered these residents, who had been sleeping unclothed, out of bed, and required them to stand for a few minutes before allowing them to dress. The Court held that the search was reasonable under the circumstances. “When the deputies ordered Recoletos Law Center respondents from their bed, they had no way of knowing whether the African-American suspects were elsewhere in the house. The presence of some Caucasians in the residence did not eliminate the Bar Review 2012 possibility that the suspects lived there as well. As the deputies stated in their affidavits, it is not uncommon in our society for people of different races to live together. Just as people of different races live and work together, so too might they engage in joint criminal activity. The deputies, who were searching a house where they believed a suspect might be armed, possessed authority to secure the premises before deciding whether to continue with the search.” Accordingly, “[t]he orders by the police to the occupants, in the context of this lawful search, were permissible, and perhaps necessary, to protect A Library Of Liberties vis-à-vis An Arsenal the safety of the deputies. Blankets and bedding can conceal a weapon,Of andArms one of the suspects was known to own a firearm, factors which underscore this point. The Constitution does not require an officer to ignore the possibility that an armed suspect may sleep with a weapon within reach.” Moreover,

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“[t]he deputies needed a moment to secure the room and ensure that other persons were not close by or did not present a danger.” In other words, when officers execute a valid warrant and act in a reasonable manner to protect themselves from harm, the Fourth Amendment is not violated. Be properly attired then when going to sleep and when going to take the Bar exams. 7. People v. Tuazon, 532 SCRA 152 (2007) The police received a confidential information through telephone that a Gemini car with plate number PFC 411 would deliver an unspecified amount of shabu in Marville Subdivision, Antipolo City. Policemen dispatched to conduct a surveillance saw the said Gemini car and immediately flagged it down. When the car window was lowered, one of the policemen saw a gun tucked on Tuazon’s waist. He was then asked to go down, and the policeman saw five plastic sachets of shabu on the driver’s seat, the contents of which Tueazon allegedly admitted to be shabu. Is this a valid moving vehicle search? “In the case of People v. Lo Ho Wing, [193 SCRA 122, 128-129 (1991),] this Court had the occasion to elucidate on the rationale for the exemption of searches of moving vehicles from the requirement of search warrant, thus: ‘[T]he rules governing search and seizure have over the years been steadily liberalized whenever a moving vehicle is the object of the search on the basis of practicality. This is so considering that before a warrant could be obtained, the place, things and persons to be searched must be described to the satisfaction of the issuing judge – a requirement which borders on the impossible in the case of smuggling effected by the use of a moving vehicle that can transport contraband from one place to another with impunity. We might add that a warrantless search of a moving vehicle is justified on the ground that ‘it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.” The Court cautioned, however, in regard to vehicle searches, that “the exception from securing a search warrant when it comes to moving vehicles does not give the police authorities unbridled discretion to conduct a warrantless search of an automobile. To do so would render the aforementioned constitutional stipulations inutile and expose the citizenry to indiscriminate police distrust which could amount to outright harassment. Surely, the policy consideration behind the exemption of search of moving vehicles does not encompass such arbitrariness on the part of the police authorities. In recognition of the possible abuse, jurisprudence dictates that at all times, it is required that probable cause exist in order to justify the warrantless search of a vehicle.” Here, the police had such probable cause. 8. People v. Laguio, Jr., 518 SCRA 393 (2007) Following a descriptions made by persons earlier arrested by the police of the supplier of shabu, the Recoletos Law Center police conducted a surveillance in the place indicated and when they saw someone who fitted the given description – walking from the apartment to his car – they approached him, frisked him and found an Bar Review 2012 unlicensed firearm. A search of his car yielded shabu and another unlicensed firearm. The Court held both the arrest and the search unconstitutional: “The facts and circumstances surrounding the present case did not manifest any suspicious behavior on the part of private respondent Lawrence Wang that would reasonably invite the attention of the police. He was merely walking from the Maria Orosa Apartment and was about to enter the parked BMW car when the police operatives arrested him, frisked and searched his person and commanded him to open the compartment of the car, which was later on A his Library Liberties An Arsenal Of Arms found to be owned by friend,Of David Lee. He vis-à-vis was not committing any visible offense then. Therefore, there can be no valid warrantless arrest in flagrante delicto under paragraph (a) of Section 5. It is settled that ‘reliable information’ alone, absent any overt act indicative of a felonious enterprise in the presence

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and within the view of the arresting officers, is not sufficient to constitute probable cause that would justify an in flagrante delicto arrest. Neither may the warrantless arrest be justified under paragraph (b) of Section 5. What is clearly established from the testimonies of the arresting officers is that Wang was arrested mainly on the information that he was the employer of Redentor Teck and Joseph Junio who were previously arrested and charged for illegal transport of shabu.” 9. Valdez v. People, 538 SCRA 611 (2007) “The sacred right against an arrest, search or seizure without valid warrant is not only ancient. It is also zealously safeguarded. . . . Indeed, while the power to search and seize may at times be necessary to the public welfare, still it must be exercised and the law implemented without contravening the constitutional rights of the citizens, for the enforcement of no statute is of sufficient importance to justify indifference to the basic principles of government.” While conducting routine patrol along the National Highway in Aringay, La Union, one early evening, three barangay tanods noticed Valdez, lugging a bag, alight from a mini-bus. They observed that he appeared suspicious since he seemed to be looking for something. They approached him but the latter purportedly attempted to run away. They gave chase and caught up with him, arrested him and thereafter brought him to the house of the Barangay Captain where he was ordered to open his bag. They then allegedly found dried marijuana leaves. Is the search and seizure valid? “For the exception in Section 5(a), Rule 113 to operate, this Court has ruled that two (2) elements must be present: (1) the person to be arrested must execute an overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime; and (2) such overt act is done in the presence or within the view of the arresting officer. Here, petitioner’s act of looking around after getting off the bus was but natural as he was finding his way to his destination. That he purportedly attempted to run away as the tanod approached him is irrelevant and cannot by itself be construed as adequate to charge the tanod with personal knowledge that petitioner had just engaged in, was actually engaging in or was attempting to engage in criminal activity. More importantly, petitioner testified that he did not run away but in fact spoke with the barangay tanod when they approached him.” Further, “[e]ven taking the prosecution’s version generally as the truth, in line with our assumption from the start, the conclusion will not be any different. It is not unreasonable to expect that petitioner, walking the street at night, after being closely observed and then later tailed by three unknown persons, would attempt to flee at their approach. Flight per se is not synonymous with guilt and must not always be attributed to one’s consciousness of guilt. . . . ‘[F]light alone is inherently ambiguous.’ Alone, and under the circumstances of this case, petitioner’s flight lends itself just as easily to an innocent explanation as it does to a nefarious one.” Could this not fall under Terry “stop and frisk” exception? “[A] stop-and-frisk situation, following Terry v. Ohio, must precede a warrantless arrest, be limited to the person’s outer clothing, and should Recoletos Law Center be grounded upon a genuine reason, in light of the police officer’s experience and surrounding Bar Review conditions, to warrant the belief that the person detained 2012 has weapons concealed about him.” How about waiver and consent? A waiver of an illegal warrantless arrest does not also mean a waiver of the inadmissibility of evidence seized during an illegal warrantless arrest. Moreover, consent to a search is not to be lightly inferred, but must be shown by clear and convincing evidence – it is the State which has the burden of proving, by clear and positive testimony, that the necessary consent was obtained and that it was freely and voluntarily given. A Library Of Liberties vis-à-vis An Arsenal Of Arms Then, to show everyone that it is not blind to what may actually be happening in the outside world of criminals and policemen, the Court said: “A final word. . . . We are not oblivious to the fact that in some instances, law enforcers resort to the practice of planting evidence to extract information or even

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harass civilians. Accordingly, courts are duty-bound to be ‘[e]xtra vigilant in trying drug cases lest an innocent person be made to suffer the unusually severe penalties for drug offenses.’ In the same vein, let this serve as an admonition to police officers and public officials alike to perform their mandated duties with commitment to the highest degree of diligence, righteousness and respect for the law.” Further in regard to bases for warrantless arrest, in People v. Racho, 626 SCRA 633 (2010), the Court reminded everyone that the “long standing rule in this jurisdiction is that ‘reliable information’ alone is not sufficient to justify a warrantless arrest. The rule requires, in addition, that the accused perform some overt act that would indicate that he has committed, is actually committing, or is attempting to commit an offense.” 10. Galvante v. Casimiro, 552 SCRA 304 (2008) If a person has his vehicle searched without warrant and he claims that the same was uncalled for, can he charge the policemen who did the searching before the Ombudsman? And, for what offense? The Court said that there is no such crime as searching without warrant – “[t]he conduct of a warrantless search is not a criminal act for it is not penalized under the Revised Penal Code (RPC) or any other special law. What the RPC punishes are only two forms of searches: . . .” – Art. 129 (Search warrants maliciously obtained and abuse in the service of those legally obtained) and Art. 130 (Searching domicile without witnesses). The person’s remedy against warrantless searches would be Art. 32 in relation to Art. 2219 (6) and (10) of the Civil Code, and/or disciplinary and administrative, under Section 41 of R.A. 6975 (DILG Act of 1990). 11. Superlines Transportation Company, Inc. v. Philippine National Construction Company, 519 SCRA 432 (2007) Of accidents, investigations and impoundments of vehicles. A Superlines bus crashed into the radio room of PNCC at Alabang Northbound Exit Lane way back in December 1990. After initial investigation by PNCC toll way patrol, the bus was turned over to the Alabang Traffic Bureau for its own investigation. Because of lack of adequate space, the bus was, on request of traffic investigator (Lopera), towed by the PNCC patrol to its compound where it was stored. Superlines’ request for return went unheeded by PNCC. The latter demanded sum of P =40,000 or collateral of same value, representing its estimate of the cost of reconstruction of damage but which Superlines estimated only to be P =10,000. Because of this stalemate, a replevin suit was filed by Superlines. The trial court dismissed. The Court of Appeals ruled that storage of the bus for safekeeping purposes partakes nature of deposit, hence custody or authority over it remained with the police traffic investigator and in the absence of any instructions from him, PNCC could not release the bus, i.e., the case should have been brought against the police authorities. Is the CA correct? Recoletos Law Center “In upholding the dismissal of petitioner’s complaint, the Court of Appeals held that while ‘there is Bar Review 2012 no law authorizing the impounding of a vehicle involved in an accident by the police authorities, * * * neither is there a law making the impounding of vehicles involved in accidents illegal.’ It added that ‘the Supreme Court is of the view that there is yet no clear-cut policy or rule on the matter.’ The appellate court is mistaken. The Constitution grants the right against unreasonable seizures.” Here, the seizure and impounding of the bus were unquestionably violative of “the right to be let alone” by the authorities as guaranteed by the Constitution. “This Court’s statement in Victory Liner[, Inc. v. Bellosillo (425 SCRA Library Of Liberties Anpractice, Arsenal Of Arms 79 [2004]),] on theAlack of a ‘clear-cut policy’vis-à-vis refers to the rightly or wrongly, of trial court judges of issuing orders for the impounding of vehicles involved in accidents. It has no application to the instant case which involves the seizure and distraint implemented by respondents upon a verbal order

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by Lopera without the benefit or color of legality afforded by a court process, writ or order.” Further, the fact that a year after the incident the driver was criminally charged for reckless imprudence in which the bus could possibly he held as evidence does not affect the outcome of the case – the rule that property held as evidence in a criminal case cannot be replevied applies only where the property is lawfully held, i.e., seized in accordance with the rule on searches and seizures or its accepted exceptions. Property subject of litigation is not by that fact alone in custodia legis. 12. Social Justice Society v. Dangerous Drugs Board, 570 SCRA 410 (2008) Would the constitutional proscription against unreasonable searches and searches be violated by the provisions of the Comprehensive Dangerous Drugs Act of 2002 (R.A. No. 9165) mandating drug testing of students of secondary and tertiary schools, officers and employees of public and private offices, and persons charged before the prosecutor’s office with offenses punishable by more than six years’ imprisonment? (Another issue was whether the same requirement for those running for public office would constitute an impermissible addition to the qualifications for the office of Senator. The Court answered in the affirmative.) The Court held that 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. To be sure, the right to enroll is not absolute; it is subject to fair, reasonable, and equitable requirements. The Court can take judicial notice of the proliferation of prohibited drugs in the country that threatens the well-being of the people, particularly the youth and school children who usually end up as victims. Accordingly, and until a more effective method is conceptualized and put in motion, a random drug testing of students in secondary and tertiary schools is not only acceptable but may even be necessary if the safety and interest of the student population, doubtless a legitimate concern of the government, are to be promoted and protected.” How about for employees? “Just as in the case of secondary and tertiary level students, the mandatory but random drug test prescribed by Sec. 36 of RA 9165 for officers and employees of public and private offices is justifiable, albeit not exactly for the same reason.” Here, there would be a more careful balancing of values. “‘[R]easonableness’ is the touchstone of the validity of a government search or intrusion. And whether a search at issue hews to the reasonableness standard is judged by the balancing of the government-mandated intrusion on the individual’s privacy interest against the promotion of some compelling state interest. . . . Given that the drug-testing policy for employees – and students for that matter – under RA 9165 is in the nature of administrative search needing what was referred to in Vernonia as ‘swift and informal disciplinary procedures,’ the probable-cause standard is Recoletos Law Center not required or even practicable. Be that as it may, the review should focus on the reasonableness of the challenged administrative search in question. The first factor to consider in the matter of reasonableness Bar Review 2012 is the nature of the privacy interest upon which the drug testing, which effects a search within the meaning of Sec. 2, Art. III of the Constitution, intrudes. In this case, the office or workplace serves as the backdrop for the analysis of the privacy expectation of the employees and the reasonableness of drug testing requirement. The employees’ privacy interest in an office is to a large extent circumscribed by the company’s work policies, the collective bargaining agreement, if any, entered into by management and the bargaining unit, and the inherent right of the employer to maintain discipline and efficiency in A privacy Libraryexpectation Of Liberties vis-à-visoffice An Arsenal Of Arms the workplace. Their in a regulated environment is, in fine, reduced; and a degree of impingement upon such privacy has been upheld.” Further, “[j]ust as defining as the first factor is the character of the intrusion authorized by the challenged law.

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In other words, taking into account “the reduced expectation of privacy on the part of the employees, the compelling state concern likely to be met by the search, and the well-defined limits set forth in the law to properly guide authorities in the conduct of the random testing, . . . the challenged drug test requirement is, under the limited context of the case, reasonable and, ergo, constitutional.” How about for those charged with crimes? “Unlike the situation covered by Sec. 36 (c) and (d) of RA 9165, the Court finds no valid justification for mandatory drug testing for persons accused of crimes. In the case of students, the constitutional viability of the mandatory, random, and suspicionless drug testing for students emanates primarily from the waiver by the students of their right to privacy when they seek entry to the school, and from their voluntarily submitting their persons to the parental authority of school authorities. In the case of private and public employees, the constitutional soundness of the mandatory, random, and suspicionless drug testing proceeds from the reasonableness of the drug test policy and requirement. We find the situation entirely different in the case of persons charged before the public prosecutor’s office with criminal offenses punishable with six (6) years and one (1) day imprisonment. The operative concepts in the mandatory drug testing are ‘randomness’ and ‘suspicionless.’ In the case of persons charged with a crime before the prosecutor’s office, a mandatory drug testing can never be random or suspicionless. The ideas of randomness and being suspicionless are antithetical to their being made defendants in a criminal complaint. They are not randomly picked; neither are they beyond suspicion. When persons suspected of committing a crime are charged, they are singled out and are impleaded against their will. The persons thus charged, by the bare fact of being haled before the prosecutor’s office and peaceably submitting themselves to drug testing, if that be the case, do not necessarily consent to the procedure, let alone waive their right to privacy. 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.” 13. Lucas v. Lucas, 650 SCRA 667 (2011) Here, the Court took note of the need for some safeguards in regard to DNA testing as part of paternity suits, and the possible abuse that may ensue. It observed that in some foreign jurisdictions, a court order for blood testing is considered a “search,” which, under their Constitutions (as in ours), must be preceded by a finding of probable cause in order to be valid, hence, the requirement of a prima facie case, or reasonable possibility, was imposed in civil actions as a counterpart of a finding of probable cause. It then proceeded to declare that the same condition precedent should be applied in our jurisdiction to protect the putative father from mere harassment suits – thus, during the hearing on the motion for DNA testing, the petitioner must present prima facie evidence or establish a reasonable Recoletos Law Center possibility of paternity.

Bar Review 2012 14. Pollo v. Constantino-David, 659 SCRA 198 (2011) The case involves a search of office computer assigned to a Civil Service Commission employee and whose personal files stored in said computer were used by the government employer as evidence of misconduct. This came about following an anonymous complaint charging the employee of lawyering for parties having pending cases before the CSC. The employee was found guilty of dishonesty, grave misconduct, conduct prejudicial to the best interest of the service, and violation of Republic Act (R.A.) A Library Ofdismissal. Liberties vis-à-vis An Arsenal Of Arms No. 6713 and penalized him with

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examining the contents, it was found that most of the files copied from the computer assigned to and being used by the employee, numbering about 40 to 42 documents, were draft pleadings or letters in connection with administrative cases in the CSC and other tribunals. He was then charged and investigated, after which he was dismissed. A pivotal issue is about the legality of the search conducted on the employee’s office computer and the copying of his personal files without his knowledge and consent, allegedly a transgression on his constitutional right to privacy. Relying on American cases, particularly, O’Connor v. Ortega, 480 U.S. 709 (1987), and United States v. Mark L. Simons, 206 F.3d 392 (4th Cir. 2000), the Court ruled for CSC. In O’Connor the U.S. Supreme Court recognized that “special needs” authorize warrantless searches involving public employees for work-related reasons, and laid down a balancing test under which government interests are weighed against the employee’s reasonable expectation of privacy. This reasonableness test implicates neither probable cause nor the warrant requirement, which are related to law enforcement. Simons subsequently applied O’Connor. The Supreme Court then proceeded to state: “Applying the analysis and principles announced in O’Connor and Simons to the case at bar, we now address the following questions: (1) Did petitioner have a reasonable expectation of privacy in his office and computer files?; and (2) Was the search authorized by the CSC Chair, the copying of the contents of the hard drive on petitioner’s computer reasonable in its inception and scope? In this inquiry, the relevant surrounding circumstances to consider include “(1) the employee’s relationship to the item seized; (2) whether the item was in the immediate control of the employee when it was seized; and (3) whether the employee took actions to maintain his privacy in the item.” These factors are relevant to both the subjective and objective prongs of the reasonableness inquiry, and we consider the two questions together. Thus, where the employee used a password on his computer, did not share his office with co-workers and kept the same locked, he had a legitimate expectation of privacy and any search of that space and items located therein must comply with the Fourth Amendment.” To the first question, the answer is no. The Court explained: “Petitioner failed to prove that he had an actual (subjective) expectation of privacy either in his office or government-issued computer which contained his personal files. Petitioner did not allege that he had a separate enclosed office which he did not share with anyone, or that his office was always locked and not open to other employees or visitors. Neither did he allege that he used passwords or adopted any means to prevent other employees from accessing his computer files. On the contrary, he submits that being in the public assistance office of the CSC-ROIV, he normally would have visitors in his office like friends, associates and even unknown people, whom he even allowed to use his computerLaw which Center to him seemed a trivial request. He described Recoletos his office as ‘full of people, his friends, unknown people’ and that in the past 22 years he had been Bar Review 2012incoming clients, receiving documents, discharging his functions at the PALD, he is ‘personally assisting drafting cases on appeals, in charge of accomplishment report, Mamamayan Muna Program, Public Sector Unionism, Correction of name, accreditation of service, and hardly had anytime for himself alone, that in fact he stays in the office as a paying customer.’ Under this scenario, it can hardly be deduced that petitioner had such expectation of privacy that society would recognize as reasonable. Moreover, even assuming arguendo, in the absence of allegation or proof of the aforementioned factual circumstances, that petitioner had A at Library least a subjective expectation of privacy in his computer as he claims, such is Of Liberties vis-à-vis An Arsenal Of Arms negated by the presence of policy regulating the use of office computers.” That policy put employees on notice that “they have no expectation of privacy in anything they create, store, send or receive on the office computers, and that the CSC may monitor the use of the computer resources using both automated

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or human means. This implies that on-the-spot inspections may be done to ensure that the computer resources were used only for such legitimate business purposes.” How about the second question – was the search reasonable? The Court said yes. The search was conducted in connection with investigation of work-related misconduct. “A search by a government employer of an employee’s office is justified at inception when there are reasonable grounds for suspecting that it will turn up evidence that the employee is guilty of work-related misconduct.” Here, the search was justified at its inception and scope. Incidentally, would it make any difference if the computer searched was personally owned by the employee. It would, and here the Court referred to Anonymous Letter-Complaint against Atty. Miguel Morales, Clerk of Court, Metropolitan Trial Court of Manila, 571 SCRA 361 (2008), which it then distinguished from the instant case – “unlike the former which involved a personal computer of a court employee, the computer from which the personal files of herein petitioner were retrieved is a government-issued computer, hence government property the use of which the CSC has absolute right to regulate and monitor.” 15. United States v. Jones, 565 U.S. ___ (23 January 2012) This case illustrates once more the adjustments and adaptations that would have to done in regard to constitutional guarantees applied in relation to modern law-enforcement amenities, such as Global Position System (GPS) tracking device. The U.S. Supreme Court held that the attachment of such a device to an individual’s vehicle, and subsequent use of that device to monitor the vehicle’s movements on public streets, constitutes a search within the meaning of the Fourth Amendment. It is also said that it is beyond dispute that a vehicle is an “effect” as that term is used in the Amendment. The case also discussed some legal developments relative to the Fourth Amendment protection. “The text of the Fourth Amendment reflects its close connection to property, since otherwise it would have referred simply to ‘the right of the people to be secure against unreasonable searches and seizures’; the phrase ‘in their persons, houses, papers, and effects’ would have been superfluous. Consistent with this understanding, our Fourth Amendment jurisprudence was tied to common-law trespass, at least until the latter half of the 20th century. Kyllo v. United States, 533 U. S. 27, 31 (2001); . . . Thus, in Olmstead v. United States, 277 U. S. 438 (1928), we held that wiretaps attached to telephone wires on the public streets did not constitute a Fourth Amendment search because ‘[t]here was no entry of the houses or offices of the defendants,’. . . Our later cases, of course, have deviated from that exclusively property-based approach. In Katz v. United States, 389 U. S. 347, 351 (1967), we said that ‘the Fourth Amendment protects people, not places,’ and found a violation in attachment of an eavesdropping device to a public telephone booth. Our later cases have applied the analysis of Justice Harlan's concurrence in Recoletos Law Center that case, which said that a violation occurs when government officers violate a person's ‘reasonable expectation of privacy.’”

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16. Abelita III v. Doria, 596 SCRA 220 (2009)

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In this case, the police officers received a report about an alleged shooting incident, they investigated and learned from witnesses about a particular person being involved in the incident. After they found him and invited him to the police headquarters to shed light on the incident, he initially agreed then sped up his vehicle, prompting the police authorities to give chase. The Court said this justified a warrantless Aact Library OftoLiberties vis-à-vis Of Arms arrest. Such person’s of trying get away, coupled withAn theArsenal incident report which they investigated, is enough to raise a reasonable suspicion on the part of the police authorities as to the existence of probable cause. Section 5, Rule 113 of the 1985 Rules on Criminal Procedure does not require the

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arresting officers to personally witness the commission of the offense with their own eyes. 17. Case of S. And Marper v. The United Kingdom, Applications No. 30562/04 and 30566/04, 4 December 2008 {European Court of Human Rights, sitting as a Grand Chamber} (http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action =html&highlight=Dna&sessionid=16803951&skin=hudoc-en) The issue here is whether the indefinite retention of fingerprints, DNA profile, and cellular samples of persons who were charged but were not convicted would be violative of the right to respect for private life which is guaranteed by Article 8 of the European Convention on Human Rights.87 Here, S, 11 years old, was charged with attempted robbery but was acquitted. Marter, on the other hand, was charged with harassment of his partner but after they reconciled, the charge was no longer pressed. Fingerprints and DNA samples were taken from both, S and Marter but police refused to destroy them after the cases were terminated. So what is private life? “The Court recalls that the concept of ‘private life’ is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person . . . . It can therefore embrace multiple aspects of the person’s physical and social identity . . . . Elements such as, for example, gender identification, name and sexual orientation and sexual life fall within the personal sphere protected by Article 8 . . . . Beyond a person’s name, his or her private and family life may include other means of personal identification and of linking to a family . . . . Information about the person’s health is an important element of private life . . . . Article 8 protects in addition a right to personal development, and the right to establish and develop relationships with other human beings and the outside world . . . . The concept of private life moreover includes elements relating to a person’s right to their image.” Then, the Court went on to state: “The mere storing of data relating to the private life of an individual amounts to an interference within the meaning of Article 8.” So what about personal data and modern developments? “Indeed, bearing in mind the rapid pace of developments in the field of genetics and information technology, the Court cannot discount the possibility that in the future the private-life interests bound up with genetic information may be adversely affected in novel ways or in a manner which cannot be anticipated with precision today.” How do these sum up then? “Given the nature and the amount of personal information contained in cellular samples, their retention per se must be regarded as interfering with the right to respect for the private lives of the individuals concerned.” And, “the DNA profiles’ capacity to provide a means of identifying genetic relationships between individuals . . . is in itself sufficient to conclude that their retention interferes with the right to the private life of the individuals concerned.” Accordingly, “the retention of both cellular samples and DNA profiles discloses an interference with the applicants’ right Recoletos Law Center to respect for their private lives, within the meaning of Article 8 § 1 of the Convention.”

Bar Review 2012 How about fingerprints? While “[i]t is common ground that fingerprints do not contain as much information as either cellular samples or DNA profiles,” they “objectively contain unique information about the individual concerned allowing his or her identification with precision in a wide range of circumstances. They are thus capable of affecting his or her private life and retention of this information without the consent of the individual concerned cannot be regarded as neutral or insignificant. The Court accordingly considers that the retention of fingerprints on the authorities’ records in connection with an identified or identifiable individual in itselfvis-à-vis give rise, notwithstanding their objective and irrefutable A Library Of may Liberties An Arsenal Of Arms

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character, to important private-life concerns.” Further, the Court said: “It is accepted in this regard that, because of the information they contain, the retention of cellular samples and DNA profiles has a more important impact on private life than the retention of fingerprints. However, the Court, . . . considers that, while it may be necessary to distinguish between the taking, use and storage of fingerprints, on the one hand, and samples and profiles, on the other, in determining the question of justification, the retention of fingerprints constitutes an interference with the right to respect for private life.” So what do we make of all these? “In conclusion, the Court finds that the blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences, as applied in the case of the present applicants, fails to strike a fair balance between the competing public and private interests and that the respondent State has overstepped any acceptable margin of appreciation in this regard. Accordingly, the retention at issue constitutes a disproportionate interference with the applicants’ right to respect for private life and cannot be regarded as necessary in a democratic society.” Respect for private life also means, of course, not copying the answers of the persons beside you. 18. Writ of Habeas Data To provide further protection to the people against assaults on their right to privacy, the Supreme Court has also come up with the Rule on the Writ of Habeas Data.88 This is a remedy available to any person whose right to privacy in life, liberty and security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party. Reliefs may include the enjoining of the act complained of, or the deletion, destruction, or rectification of the erroneous data or information.89 In Manila Electric Company v. Lim, 632 SCRA 195 (2010), the Court held that the writ could not be used to thwart the exercise of management prerogative to transfer employees. Her “plea that she be spared from complying with MERALCO’s Memorandum directing her reassignment to the Alabang Sector, under the guise of a quest for information or data allegedly in possession of petitioners, does not fall within the province of a writ of habeas data.” The Court explained that the “habeas data rule, in general, is designed to protect by means of judicial complaint the image, privacy, honor, information, and freedom of information of an individual. It is meant to provide a forum to enforce one’s right to the truth and to informational privacy, thus safeguarding the constitutional guarantees of a person’s right to life, liberty and security against abuse in this age of information technology. It bears reiteration that like the writ of amparo, habeas data was conceived as a response, given the lack of effective and Recoletos Law available remedies, to address the extraordinary riseCenter in the number of killings and enforced disappearances. Its intent is to address violations of or threats to the rights to life, liberty or security as Bar Review 2012 a remedy independently from those provided under prevailing Rules.” Further, “the writs of amparo and habeas data will NOT issue to protect purely property or commercial concerns nor when the grounds invoked in support of the petitions therefor are vague or doubtful. Employment constitutes a property right under the context of the due process clause of the Constitution.”

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Further, the Court noted that “there is no showing from the facts presented that petitioners committed any unjustifiable or unlawful violation of respondent’s right to privacy vis-a-vis the right to life, liberty A Library Of Liberties vis-à-vis An Arsenal Of Arms or security. To argue that petitioners’ refusal to disclose the contents of reports allegedly received on the 88

Effective 2 February 2008, pursuant to the A.M. No. 08-1-16-SC (22 January 2008).

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See also the Writ of Amparo, discussed in relation to the Writ of Habeas Corpus.

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threats to respondent’s safety amounts to a violation of her right to privacy is at best speculative.”

F. PRIVACY OF COMMUNICATIONS Even without the explicit guarantee of the privacy of communications and correspondence in the U.S. Constitution, the same privilege was still considered available, pursuant to the Fourth Amendment.90 This is because, wiretapping, or electronic eavesdropping, is also a form of a seizure, an intrusion into one’s sacred private precincts, which when not previously authorized by a judge, or demanded by exigencies, would be considered unreasonable and thus violative of a person’s right to be left and let alone. Spying on a person’s correspondence is also a form of unwarranted incursion into his private world. It has likewise been held that this constitutional protection is available even in highly personal relationships, such as in marital spats between Lothario-husbands and raging jealous wives.91 Related to privacy of communications is the Anti-Wiretapping Act (R.A. 4200) which the Court has declared as prohibiting the secret recording of conversations either through wiretapping92 or tape recorders. This means that whenever a recording is made of one’s conversations, the same must be with the knowledge and consent of everyone involved.93 However, this does not apply if the conversation is not intended to be private, such as an altercation where the participants do not really care who are listening.94 Also, overhearing by means of a telephone extension is not covered by R.A. No. 4200, however, so held the Court in Gaanan v. Intermediate Appellate Court, 145 SCRA 112 1986). (But nowadays, with the proliferation of cellphones, who still needs a telephone extension?)

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FREEDOM OF EXPRESSION

The right to freely speak one’s mind is a highly valued freedom in a republican and democratic society.95 If the people are really to be the source of power, and that sovereignty resides in them, then they should rightfully determine the fate of the nation. But they can only do the same if they are free to know and learn and to discuss matters unfettered by restrictions placed on them by the government. The authorities are supposed to let the people decide what is good for them and the government, not the other way around. If the government had its way, chances are it would only be allowing the free flow of information that would be favorable to itself. In the process, it would be filtering and managing the news and information that are to guide or influence the people in making their decisions. The interplay of thought in the free and open market place of ideas provides the best means by which the interest of society could be achieved, or so the philosophy of this freedom suggests. “First Amendment freedoms are most in danger when the government seeksLaw to control thought or to justify its laws for that Recoletos Center impermissible end. The right to think is the beginning of freedom, and speech must be protected from the government because speech is theBar beginning of thought.” Review 2012 96 Parenthetically, the press is at the forefront of expression, for without it dissemination could hardly be had.“The best gauge of a free and

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See Katz v. United States, 389 U.S. 347 (1967)

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Zulueta v. Court of Appeals, 253 SCRA 699 (1996)

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Salcedo-Ortañez v. Court of Appeals, 235 SCRA 111 (1994)

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AAppeals, Library Of Liberties Ramirez v. Court of 248 SCRA 590 (1995)

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Navarro v. Court of Appeals, 313 SCRA 153 (1999)

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“Freedom of expression enjoys an exalted place in the hierarchy of constitutional rights.” (Lopez v. People, 642 SCRA 668 [2011])

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Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002)

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democratic society rests in the degree of freedom enjoyed by its media.”97 Without the mass media to broadcast and propagate a person’s ideas or speech, it would be more like flowers born to blush unseen, wasting their sweetness in the desert air.98 In keeping with the underlying rationale for the freedom, this guarantee basically prohibits the State from exercising prior restraint or censorship. If the people are to decide, they must be allowed access to all available ideas and information, and not simply be given a sanitized version. At the same time, the freedom also means a corresponding check on subsequent punishment. Otherwise, freedom to speak unhindered may become a trap if a punishment so eagerly awaits a few steps away. Thus, only those which are clearly outside the scope of free expression may be subject to sanctions. In this regard, there is the concept of privileged communications which exempts the person communicating from prosecution. And here, it has been said that the enumeration under Art. 354 of the Revised Penal Code is not an exclusive list of qualifiedly privileged communications since fair commentaries on matters of public interest are likewise privileged. The rule on privileged communications had its genesis not in the nation’s penal code but in the Bill of Rights of the Constitution guaranteeing freedom of speech and of the press.99 It has also been held that the civic duty to see to it that public duty is discharged faithfully is inconsistent with requirements placing on citizens the burden of proving good motives and justifiable ends in airing their plaints, comments or criticisms.100 Indeed, a government that is not afraid of its own shadow should have no problem dealing with people’s plaints. One that sees sinister plots in every group action, one that gives strange meanings to ordinary words, one which employs force to prevent people from knowing about skeletons in the closets may soon be hiding real skeletons if not checked at the earliest opportunity. More than a hundred years ago, it was observed: “It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.”101 Or, in the words of Justice Black, dissenting in Board of Education v. Allen, “it nearly is always by insidious approaches that the citadels of liberty are most successfully attacked.”102 Do we really know how to learn from the past?103 Or is it much easier to go along with our indolent and careless ways to follow the path of least resistance, confident in our own safety and welfare, until we realize we are already at the edge of the precipice, needing only a slight push or whiff of air to send us plummeting into the abyss?

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Estrada v. Sandiganbayan, 369 SCRA 394 (2001), discussed the concepts of facial challenge and Bar Review overbreadth, explaining that a facial challenge is allowed 2012 to be made to a vague statute and to one which is overbroad because of possible “chilling effect” upon protected speech. The theory is that “[w]hen statutes regulate or proscribe speech and no readily apparent construction suggests itself as a vehicle for

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David v. Macapagal-Arroyo, 489 SCRA 160 (2006)

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See Thomas Gray’s Elegy Written on a Country Churchyard

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Borjal v. Court of Appeals, 301 SCRA 1 (1999)

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Liberties Vasquez v. CourtA of Library Appeals, 314Of SCRA 460 (1999)

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Boyd v. United States, 116 U.S. 616 (1886)

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392 U.S. 236 (1968), citing Boyd.

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Those who cannot remember the past are condemned to repeat it.

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rehabilitating the statutes in a single prosecution, the transcendent value to all society of constitutionally protected expression is deemed to justify allowing attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with narrow specificity.” The possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that the protected speech of others may be deterred and perceived grievances left to fester because of the inhibitory effects of overly broad statutes. David v. Macapagal-Arroyo, 489 SCRA 160 (2006), also spoke of such concepts. “[T]he overbreadth doctrine is an analytical tool developed for testing ‘on their faces’ statutes in free speech cases, also known under the American Law as First Amendment cases.” The Court also noted: “Moreover, the overbreadth doctrine is not intended for testing the validity of a law that ‘reflects legitimate state interest in maintaining comprehensive control over harmful, constitutionally unprotected conduct.’ Undoubtedly, lawless violence, insurrection and rebellion are considered ‘harmful’ and ‘constitutionally unprotected conduct.’ . . . Thus, claims of facial overbreadth are entertained in cases involving statutes which, by their terms, seek to regulate only ‘spoken words’ and again, that ‘overbreadth claims, if entertained at all, have been curtailed when invoked against ordinary criminal laws that are sought to be applied to protected conduct.’ . . . [F]acial invalidation of laws is considered as ‘manifestly strong medicine,’ to be used ‘sparingly and only as a last resort,’ and is ‘generally disfavored;’ The reason for this is obvious. Embedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a law may be applied will not be heard to challenge a law on the ground that it may conceivably be applied unconstitutionally to others, i.e., in other situations not before the Court.” Assembly is also a form of expression. In this regard, the pronouncements of the Court in David v. Macapagal-Arroyo, are also enlightening. The Court said: “‘Assembly’ means a right on the part of the citizens to meet peaceably for consultation in respect to public affairs. It is a necessary consequence of our republican institution and complements the right of speech. As in the case of freedom of expression, this right is not to be limited, much less denied, except on a showing of a clear and present danger of a substantive evil that Congress has a right to prevent. In other words, like other rights embraced in the freedom of expression, the right to assemble is not subject to previous restraint or censorship. It may not be conditioned upon the prior issuance of a permit or authorization from the government authorities except, of course, if the assembly is intended to be held in a public place, a permit for the use of such place, and not for the assembly itself, may be validly required. The ringing truth here is that petitioner David, et al. were arrested while they were exercising their right to peaceful assembly. They were not committing any crime, neither was there a showing of a clear and present danger that warranted the limitation of that right. As can be gleaned from circumstances, the charges of inciting to sedition and violation of BP 880 were mere afterthought. Even the Solicitor General, during the oral argument, failed Recoletos Law Center to justify the arresting officers’ conduct. In De Jonge v. Oregon, it was held that peaceable assembly cannot be made a crime, . . .” Bar Review 2012 1. Chavez v. Gonzalez, 545 SCRA 441 (2008)

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There simply are certain memories, certain faces, certain sounds which do not just fade into oblivion. Such, apparently is the fate of the “Hello, Garci” Tapes. Even as that incident may be consciously sought to be shoved into the dustbins of history, it just keeps on lingering in the subconscious years later. A Library Of Liberties vis-à-vis An Arsenal Of Arms The issue here is about the press pronouncements of the Secretary of Justice and the National Telecommunications Commission warning about the adverse consequences that may be visited on those who would air the tapes, such as possible criminal prosecution under the Anti-Wiretapping Act (R.A.

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No. 4200). Chavez, a non-broadcast practitioner, challenged the validity of said official actuations, claiming that they constituted prior restraint. The Court observed: “This presents a unique tinge to the present challenge, considering that the cases in our jurisdiction involving prior restrictions on speech never had any issue of whether the governmental act or issuance actually constituted prior restraint. Rather, the determinations were always about whether the restraint was justified by the Constitution.” With that, the Court, through the pen of the Chief Justice himself, practically got into an elucidating lecture on the great importance of the freedom of the speech and of the press, such as the following legal tidbits: •

“To be truly meaningful, freedom of speech and of the press should allow and even encourage the articulation of the unorthodox view, though it be hostile to or derided by others; or though such view ‘induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.’”

•

“The protection afforded free speech extends to speech or publications that are entertaining as well as instructive or informative.” Further, “[w]hile all forms of communication are entitled to the broad protection of freedom of expression clause, the freedom of film, television and radio broadcasting is somewhat lesser in scope than the freedom accorded to newspapers and other print media, . . .”

•

“[A]ll speech are not treated the same. Some types of speech may be subjected to some regulation by the State under its pervasive police power, in order that it may not be injurious to the equal right of others or those of the community or society. The difference in treatment is expected because the relevant interests of one type of speech, e.g., political speech, may vary from those of another, e.g., obscene speech. Distinctions have therefore been made in the treatment, analysis, and evaluation of the permissible scope of restrictions on various categories of speech. We have ruled, for example, that in our jurisdiction slander or libel, lewd and obscene speech, as well as ‘fighting words’ are not entitled to constitutional protection and may be penalized.”

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On Press Freedom: “It is the chief source of information on current affairs. It is the most pervasive and perhaps most powerful vehicle of opinion on public questions. It is the instrument by which citizens keep their government informed of their needs, their aspirations and their grievances. It is the sharpest weapon in the fight to keep government responsible and efficient. Without a vigilant press, the mistakes of every administration would go uncorrected and its abuses unexposed.”

•

Four Aspects of Press Freedom: (1) freedom from prior restraint h (2) freedom from Recoletos Law Center punishment subsequent to publication h (3) freedom of access to information h (4) freedom of circulation Bar Review 2012

•

“Prior restraint refers to official governmental restrictions on the press or other forms of expression in advance of actual publication or dissemination. Freedom from prior restraint is largely freedom from government censorship of publications, whatever the form of censorship, and regardless of whether it is wielded by the executive, legislative or judicial branch of the government. . . . Any law or official that requires some form of permission to be had before publication A canLibrary be made,Of commits an infringement of Arsenal the constitutional right, and remedy can Liberties vis-à-vis An Of Arms be had at the courts.”

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on speech, and any act that restrains speech is presumed invalid, and ‘any act that restrains speech is hobbled by the presumption of invalidity and should be greeted with furrowed brows,’ it is important to stress not all prior restraints on speech are invalid.’” •

Content-Neutral Regulation v. Content-Based Restraint or Censorship: In content-neutral regulations, substantial governmental interest is required for their validity, and they are not subject to the strictest form of judicial scrutiny but an intermediate approach – somewhere between the mere rationality that is required of any other law and the compelling interest standard applied to content-based restrictions. As for content-based restrictions, they are given the strictest scrutiny in light of their inherent and invasive impact. “Thus, when the prior restraint partakes of a content-neutral regulation, it is subjected to an intermediate review. A content-based regulation, however, bears a heavy presumption of invalidity and is measured against the clear and present danger rule. The latter will pass constitutional muster only if justified by a compelling reason, and the restrictions imposed are neither overbroad nor vague.”

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Dichotomy of Free Press: Print v. Broadcast Media: “The regimes presently in place for each type of media differ from one other. Contrasted with the regime in respect of books, newspapers, magazines and traditional printed matter, broadcasting, film and video have been subjected to regulatory schemes.” And what is the basis for the difference in treatment? “The dichotomy between print and broadcast media traces its origins in the United States. There, broadcast radio and television have been held to have limited First Amendment protection, and U.S. Courts have excluded broadcast media from the application of the ‘strict scrutiny’ standard that they would otherwise apply to content-based restrictions. According to U.S. Courts, the three major reasons why broadcast media stands apart from print media are: (a) the scarcity of the frequencies by which the medium operates [i.e., airwaves are physically limited while print medium may be limitless]; (b) its ‘pervasiveness’ as a medium; and (c) its unique accessibility to children.”

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Modern Amenities and Changing Legal Landscape: “Historically, the scarcity of frequencies was thought to provide a rationale. However, cable and satellite television have enormously increased the number of actual and potential channels. Digital technology will further increase the number of channels available. But still, the argument persists that broadcasting is the most influential means of communication, since it comes into the home, and so much time is spent watching television. Since it has a unique impact on people and affects children in a way that the print media normally does not, that regulation is said to be necessary in order to preserve pluralism. It has been argued further that a significant main threat to free expression—in terms of diversity—comes not Recoletos from government, from private corporate bodies. These Lawbut Center developments show a need for a reexamination of the traditional notions of the scope and extent of broadcast media regulation.Bar The Review emergence of digital technology – which has led to the 2012 convergence of broadcasting, telecommunications and the computer industry – has likewise led to the question of whether the regulatory model for broadcasting will continue to be appropriate in the converged environment. Internet, for example, remains largely unregulated, yet the Internet and the broadcast media share similarities, and the rationales used to support broadcast regulation apply equally to the Internet.”

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After those excursions into the andvis-à-vis exoterics of press freedom, about the merits of the A Library Ofesoterics Liberties An Arsenal Ofwhat Arms case itself? “The records of the case at bar, however, are confused and confusing, and respondents’ evidence falls short of satisfying the clear and present danger test. Firstly, the various statements of the Press Secretary obfuscate the identity of the voices in the tape recording. Secondly, the integrity of the

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taped conversation is also suspect. The Press Secretary showed to the public two versions, one supposed to be a ‘complete’ version and the other, an ‘altered’ version. Thirdly, the evidence of the respondents on the who’s and the how’s of the wiretapping act is ambivalent, especially considering the tape’s different versions. The identity of the wire-tappers, the manner of its commission and other related and relevant proofs are some of the invisibles of this case. Fourthly, given all these unsettled facets of the tape, it is even arguable whether its airing would violate the anti-wiretapping law.” Is the possibility of violation of a law enough basis for restraints to be placed on the communication of worthwhile news? It depends, but generally that should not be the case. In any event, one has to look at the totality of the picture. “We rule that not every violation of a law will justify straitjacketing the exercise of freedom of speech and of the press. Our laws are of different kinds and doubtless, some of them provide norms of conduct which even if violated have only an adverse effect on a person’s private comfort but does not endanger national security. There are laws of great significance but their violation, by itself and without more, cannot support suppression of free speech and free press. In fine, violation of law is just a factor, a vital one to be sure, which should be weighed in adjudging whether to restrain freedom of speech and of the press. The totality of the injurious effects of the violation to private and public interest must be calibrated in light of the preferred status accorded by the Constitution and by related international covenants protecting freedom of speech and of the press. . . . But to repeat, the need to prevent their violation cannot per se trump the exercise of free speech and free press, a preferred right whose breach can lead to greater evils. For this failure of the respondents alone to offer proof to satisfy the clear and present danger test, the Court has no option but to uphold the exercise of free speech and free press. There is no showing that the feared violation of the anti-wiretapping law clearly endangers the national security of the State.” By the way, does it not matter that there were no official or formal issuances but just press releases? “[I]t is not decisive that the press statements made by respondents were not reduced in or followed up with formal orders or circulars. It is sufficient that the press statements were made by respondents while in the exercise of their official functions. Undoubtedly, respondent Gonzales made his statements as Secretary of Justice, while the NTC issued its statement as the regulatory body of media. Any act done, such as a speech uttered, for and on behalf of the government in an official capacity is covered by the rule on prior restraint. The concept of an ‘act’ does not limit itself to acts already converted to a formal order or official circular.” Ahh, the Chilling Effect Principle. “There is enough evidence of chilling effect of the complained acts on record. The warnings given to media came from no less the NTC, a regulatory agency that can cancel the Certificate of Authority of the radio and broadcast media. They also came from the Secretary of Justice, the alter ego of the Executive, who wields the awesome Recoletos Law Centerpower to prosecute those perceived to be violating the laws of the land.”

Bar 2012 Justice Carpio, concurring, came up withReview interesting observations and pronouncements, such as: •

Protected and Unprotected Expression – “Expression not subject to prior restraint is protected expression or high-value expression. Any content-based prior restraint on protected expression is unconstitutional without exception. A protected expression means what it says – it is absolutely protected from censorship.”

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Exceptions A to the general that therevis-à-vis should be An no prior restraint speech: (1) Pornography Library Ofrule Liberties Arsenal Ofon Arms 104 h (2) False or Misleading Advertisement h (3) Advocacy of Imminent Lawless Action h (4)

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“This Court recognized false or misleading advertisement as unprotected expression only in October 2007.” (See separate concurring opinion of C.J. Puno in Pharmaceutical and Health Care Association of the Philippines v. Duque III, 535 SCRA 265 [2007])

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Danger to National Security •

“Expression that may be subject to prior restraint is unprotected expression or low-value expression. By definition, prior restraint on unprotected expression is content-based since the restraint is imposed because of the content itself.”

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“Only unprotected expression may be subject to prior restraint. However, any such prior restraint on unprotected expression must hurdle a high barrier. First, such prior restraint is presumed unconstitutional. Second, the government bears a heavy burden of proving the constitutionality of the prior restraint.” Thus, “Courts will subject to strict scrutiny any government action imposing prior restraint on unprotected expression. The government action will be sustained if there is a compelling State interest, and prior restraint is necessary to protect such State interest. In such a case, the prior restraint shall be narrowly drawn – only to the extent necessary to protect or attain the compelling State interest.”

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Prior Restraint and Subsequent Punishment: “While there can be no prior restraint on protected expression, such expression may be subject to subsequent punishment, either civilly or criminally.”

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Hierarchy of Speech: “If ever there is a hierarchy of protected expressions, political expression would occupy the highest rank, and among different kinds of political expression, the subject of fair and honest elections would be at the top.”

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Garci Tapes and Privacy Rights: “The airing of the Garci Tapes does not violate the right to privacy because the content of the Garci Tapes is a matter of important public concern. The Constitution guarantees the people’s right to information on matters of public concern. The remedy of any person aggrieved by the public airing of the Garci Tapes is to file a complaint for violation of the Anti-Wiretapping Law after the commission of the crime. Subsequent punishment, absent a lawful defense, is the remedy available in case of violation of the Anti-Wiretapping Law.”

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Prior Restraint and Judicial Determination: “Any order imposing prior restraint on unprotected expression requires prior adjudication by the courts on whether the prior restraint is constitutional. This is a necessary consequence from the presumption of invalidity of any prior restraint on unprotected expression. Unless ruled by the courts as a valid prior restraint, government agencies cannot implement outright such prior restraint because such restraint is presumed unconstitutional at inception.”

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2. Soriano v. Laguardia, 587 SCRA 79 (2009) and 615 SCRA 254 (2010) Whether under the guarantee of freedom of speech or religious freedom, foul language uttered in a 2012 broadcast that is for general viewershipBar couldReview not be tolerated. The Court observed: “[T]he limits of the freedom of expression are reached when the expression touches upon matters of essentially private concern. In the oft-quoted expression of Justice Holmes, the constitutional guarantee ‘obviously was not intended to give immunity for every possible use of language.’” On the religious side, the Court said: “Plain and simple insults directed at another person cannot be elevated to the status of religious speech.” Foul language used in retaliation against persons espousing another religious view is not converted into religious speech. “We cannot accept that petitioner made his statements defense A Library Of Liberties vis-à-vis An ArsenalinOf Armsof his reputation and religion, as they constitute no intelligible defense or refutation of the alleged lies being spread by a rival religious group. They simply illustrate that petitioner had descended to the level of name-calling and foul-language discourse. Petitioner could have chosen to contradict and disprove his detractors, but opted

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for the low road.” As a reminder for everyone, the Court stated: “It has been established in this jurisdiction that 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. Hence, it is, in that context, unprotected speech.” And, speaking of the need see and hear in proper perspectives, the Court said: “Following the contextual lessons of the cited case of Miller v. California, a patently offensive utterance would come within the pale of the term obscenity should it appeal to the prurient interest of an average listener applying contemporary standards. A cursory examination of the utterances complained of and the circumstances of the case reveal that to an average adult, the utterances ‘Gago ka talaga x x x, masahol ka pa sa putang babae x x x. Yung putang babae ang gumagana lang doon yung ibaba, [dito] kay Michael ang gumagana ang itaas, o di ba!’ may not constitute obscene but merely indecent utterances. They can be viewed as figures of speech or merely a play on words. In the context they were used, they may not appeal to the prurient interests of an adult. The problem with the challenged statements is that they were uttered in a TV program that is rated ‘G’ or for general viewership, and in a time slot that would likely reach even the eyes and ears of children.” Accordingly, “[w]hile adults may have understood that the terms thus used were not to be taken literally, children could hardly be expected to have the same discernment. Without parental guidance, the unbridled use of such language as that of petitioner in a television broadcast could corrupt impressionable young minds. The term “putang babae” means “a female prostitute,” a term wholly inappropriate for children, who could look it up in a dictionary and just get the literal meaning, missing the context within which it was used. . . . In this particular case, where children had the opportunity to hear petitioner’s words, when speaking of the average person in the test for obscenity, we are speaking of the average child, not the average adult. The average child may not have the adult’s grasp of figures of speech, and may lack the understanding that language may be colorful, and words may convey more than the literal meaning. Undeniably the subject speech is very suggestive of a female sexual organ and its function as such. In this sense, we find petitioner’s utterances obscene and not entitled to protection under the umbrella of freedom of speech. . . . With respect to the young minds, said utterances are to be treated as unprotected speech.” With regard to matters of first impression, the Court noted that “while a jurisprudential pattern involving certain offensive utterances conveyed in different mediums has emerged, this case is veritably one of first impression, it being the first time that indecent speech communicated via television and the applicable norm for its regulation are, in this jurisdiction, made the focal point.”

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What test then should be used in matters like this? “To be sure, the clear and present danger doctrine Bar by Review is not the only test which has been applied the courts.2012 Generally, said doctrine is applied to cases involving the overthrow of the government and even other evils which do not clearly undermine national security. Since not all evils can be measured in terms of ‘proximity and degree’ the Court, however, in several cases . . . applied the balancing of interests test. Former Chief Justice Fred Ruiz Castro, in Gonzales v. COMELEC, elucidated in his Separate Opinion that ‘where the legislation under constitutional attack interferes with the freedom of speech and assembly in a more generalized way and where the effect of the speech and in terms of the An probability of realization A Library Ofassembly Liberties vis-à-vis Arsenal Of Arms of a specific danger is not susceptible even of impressionistic calculation,’ then the ‘balancing of interests’ test can be applied.” The Court further explained that “[t]his balancing of interest test, to borrow from Professor Kauper, rests on the theory that it is the court’s function in a case before it when it finds public interests

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served by legislation, on the one hand, and the free expression clause affected by it, on the other, to balance one against the other and arrive at a judgment where the greater weight shall be placed. If, on balance, it appears that the public interest served by restrictive legislation is of such nature that it outweighs the abridgment of freedom, then the court will find the legislation valid. In short, the balance-of-interests theory rests on the basis that constitutional freedoms are not absolute, not even those stated in the free speech and expression clause, and that they may be abridged to some extent to serve appropriate and important interests. To the mind of the Court, the balancing of interest doctrine is the more appropriate test to follow.” Accordingly, “the government’s interest to protect and promote the interests and welfare of the children adequately buttresses the reasonable curtailment and valid restraint on petitioner’s prayer to continue as program host of Ang Dating Daan during the suspension period.” And, for imagery, how’s this? “One who utters indecent, insulting, or offensive words on television when unsuspecting children are in the audience is, in the graphic language of FCC, a ‘pig in the parlor.’ Public interest would be served if the ‘pig’ is reasonably restrained or even removed from the ‘parlor.’ Ergo, petitioner’s offensive and indecent language can be subjected to prior restraint.” Further, would not the suspension of three months imposed on petitioner be prior restraint? No, the Court explained that it was an administrative sanction or subsequent punishment. “To clarify, statutes imposing prior restraints on speech are generally illegal and presumed unconstitutional breaches of the freedom of speech. The exceptions to prior restraint are movies, television, and radio broadcast censorship in view of its access to numerous people, including the young who must be insulated from the prejudicial effects of unprotected speech.” In this regard, all broadcast networks are regulated by the MTRCB since they are required to get a permit before they air their television programs. Consequently, their right to enjoy their freedom of speech is subject to that requirement. “As lucidly explained by Justice Dante O. Tinga, government regulations through the MTRCB became ‘a necessary evil’ with the government taking the role of assigning bandwidth to individual broadcasters. The stations explicitly agreed to this regulatory scheme; otherwise, chaos would result in the television broadcast industry as competing broadcasters will interfere or co-opt each other’s signals. In this scheme, station owners and broadcasters in effect waived their right to the full enjoyment of their right to freedom of speech in radio and television programs and impliedly agreed that said right may be subject to prior restraint – denial of permit or subsequent punishment, like suspension or cancellation of permit, among others.” In short, the imposition of sanctions on broadcasters who indulge in profane or indecent broadcasting does not constitute forbidden censorship. Finally, the Court highlighted the difference between the speaker and the medium when it comes to the imposition of sanctions. “But even as we uphold the power of the MTRCB to review and impose sanctions for violations of PD 1986, its decision to suspend petitioner must be modified, for nowhere Recoletos Law Center in that issuance, particularly the power-defining Sec. 3 nor in the MTRCB Schedule of Administrative Penalties effective January 1, 1999 is the Board empowered to suspend the program host or even to Bar Review 2012 prevent certain people from appearing in television programs. The MTRCB, to be sure, may prohibit the broadcast of such television programs or cancel permits for exhibition, but it may not suspend television personalities, for such would be beyond its jurisdiction.” In other words, the program may be suspended, but not the speaker himself.

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On motion for reconsideration, one new aspect was put forward. What if the program had been shown at a time – a A sort of a “safe – when childrenAn areArsenal likely not Of to be watching, would it have Library Ofharbor” Liberties vis-à-vis Arms made a difference? The Court said: “The so-called ‘safe harbor’ of 10:00 p.m. to 6:00 a.m., adverted to in Action for Children’s Television [v. Federal Communications Commission, 58 F.3d 654 (1995)] as the time wherein broadcast of indecent material may be permitted, is believed inapplicable here. As it

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were, there is no legislative enactment or executive issuance setting a similar period in the Philippines wherein indecent material may be broadcast. Rather than fix a period for allowing indecent programming, what is used in this jurisdiction is the system of classification of television programs, which the petitioner violated. His program was rated ‘G,’ purported to be suitable for all ages. We cannot lose sight of the violation of his program’s classification that carried with it the producer’s implied assurance that the program did not contain anything unsuitable for children and minors. The hour at which it was broadcasted was of little moment in light of the guarantee that the program was safe for children’s viewing.” 3. Pleasant Grove City v. Summum, 555 U.S. ___ (2009) The U.S. Supreme Court presented the gist of the case in this way: “This case presents the question whether the Free Speech Clause of the First Amendment entitles a private group to insist that a municipality permit it to place a permanent monument in a city park in which other donated monuments were previously erected. The Court of Appeals held that the municipality was required to accept the monument because a public park is a traditional public forum. We conclude, however, that although a park is a traditional public forum for speeches and other transitory expressive acts, the display of a permanent monument in a public park is not a form of expression to which forum analysis applies. Instead, the placement of a permanent monument in a public park is best viewed as a form of government speech and is therefore not subject to scrutiny under the Free Speech Clause.” With regard to the application of the freedom of speech to the government itself, the Court said: “The Free Speech Clause restricts government regulation of private speech; it does not regulate government speech. . . . (‘[T]he Government's own speech . . . is exempt from First Amendment scrutiny’) . . . . (‘Government is not restrained by the First Amendment from controlling its own expression’).” 4. Pharmaceutical and Health Care Association of the Philippines v. Duque III, 535 SCRA 265 (2007) In his concurring opinion, Chief Justice Puno, said: “I write to elucidate another reason why the absolute ban on the advertising and promotion of breastmilk substitutes found under Sections 4(f) and 11 of A.O. No. 2006-0012 (RIRR) should be struck down. The advertising and promotion of breastmilk substitutes properly falls within the ambit of the term commercial speech – that is, speech that proposes an economic transaction. This is a separate category of speech which is not accorded the same level of protection as that given to other constitutionally guaranteed forms of expression but is nonetheless entitled to protection.” Any parameters for commercial speech protection? Well, yes. C.J. Puno made reference to the four-part analysis of Central Hudson Gas & Electric v. Public Service Commission, 447 U.S. 557 (1980): “To begin with, the commercialLaw speechCenter must ‘concern lawful activity and not be Recoletos misleading” if it is to be protected under the First Amendment. Next, the asserted governmental interest must be substantial. If both ofBar theseReview requirements are met, it must next be determined whether 2012 the state regulation directly advances the government interest asserted, and whether it is not more extensive than is necessary to serve the interest.” So what would all these lead to? “I proffer the humble view that the absolute ban on advertising prescribed under Sections 4(f) and 11 of the RIRR is unduly restrictive and is more than necessary to further the avowed governmental interest of promoting the health of infants and young children. It ought to be self-evident, for instance, that the advertisement of such products which are strictly informative cuts too deep on free speech. The laudable A Library Ofpromotion Libertiesofvis-à-vis Arsenal Arms concern of the respondent for the the health An of infants and Of young children cannot justify 105 the absolute, overarching ban.”

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In his separate opinion in Chavez v. Gonzales, 545 SCRA 441 (2008), Justice Carpio, referring to Pharmaceutical and Health

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5. Integrated Bar of the Philippines v. Atienza, 613 SCRA 518 (2010) In Bayan v. Ermita, 488 SCRA 226 (2006), the Court spoke of the right to peaceable assembly in this way: “The first point to mark is that the right to peaceably assemble and petition for redress of grievances is, together with freedom of speech, of expression, and of the press, a right that enjoys primacy in the realm of constitutional protection. For these rights constitute the very basis of a functional democratic polity, without which all the other rights would be meaningless and unprotected.” At the same time, though, it recognized the validity of the law – Public Assembly Act of 1985 (B.P. 880) – providing for guidelines in the conduct of rallies and other mass actions. B.P. 880 provides a restriction that simply regulates the time, place and manner of the assemblies – it does not impose an absolute ban on public assemblies. This set of regulations included the need to obtain a permit from the local chief executive, which may only be denied on ground of clear and present danger to public order, public safety, public convenience, public morals or public health. In Integrated Bar of the Philippines, the issue is whether the mayor could unilaterally specify a place other than the one indicated by the applicants for the public assembly? No, he cannot without an acceptable basis. Here, the Court ruled that the mayor, in modifying the permit outright, gravely abused his discretion, specially so as he did not immediately inform the applicants who should have been heard first on the matter of his perceived imminent and grave danger of a substantive evil that may warrant the changing of the venue. “The opportunity to be heard precedes the action on the permit, since the applicant may directly go to court after an unfavorable action on the permit. Respondent failed to indicate how he had arrived at modifying the terms of the permit against the standard of a clear and present danger test which, it bears repeating, is an indispensable condition to such modification. Nothing in the issued permit adverts to an imminent and grave danger of a substantive evil, which ‘blank’ denial or modification would, when granted imprimatur as the appellate court would have it, render illusory any judicial scrutiny thereof. It is true that the licensing official, here respondent Mayor, is not devoid of discretion in determining whether or not a permit would be granted. It is not, however, unfettered discretion. While prudence requires that there be a realistic appraisal not of what may possibly occur but of what may probably occur, given all the relevant circumstances, still the assumption – especially so where the assembly is scheduled for a specific public place – is that the permit must be for the assembly being held there. The exercise of such a right, in the language of Justice Roberts, speaking for the American Supreme Court, is not to be ‘abridged on the plea that it may be exercised in some other place.’ Notably, respondent failed to indicate in his Comment any basis or explanation for his action. It smacks of whim and caprice for respondent to just impose a change of venue for an assembly that was slated for a specific public place.” Related to the foregoing is the holding of the Court in David v. Macapagal-Arroyo, 489 SCRA 160 Recoletos Law Center (2006), that “wholesale cancellation of all permits to rally is a blatant disregard of the principle that ‘freedom of assembly is not to be limited, much less denied, Bar Review 2012 except on a showing of a clear and present danger of a substantive evil that the State has a right to prevent.’ Tolerance is the rule and limitation is the exception. . . . With the blanket revocation of permits, the distinction between protected and unprotected assemblies was eliminated.”

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6. Japan Airlines v. Simangan, 552 SCRA 341 (2008)

Can a passenger who had been unceremoniously bumped off by an airline be held liable for the injury A Library Ofthe Liberties vis-à-vis An Arsenal Of Arms that might have been caused to reputation of the airline as a result of the publication of the Care Association, pointed out that the “Court recognized false or misleading advertisement as unprotected expression only in October 2007.”

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passenger’s grievance? Here, the passenger who was already seated inside the plane was told to disembark because the airline personnel doubted the validity of his travel papers. He then filed a complaint against the airline for breach of contract of carriage. The airline, counterclaimed for damages. “JAL is a common carrier. JAL’s business is mainly with the traveling public. It invites people to avail themselves of the comforts and advantages it offers. Since JAL deals with the public, its bumping off of respondent without a valid reason naturally drew public attention and generated a public issue. The publications involved matters about which the public has the right to be informed because they relate to a public issue. This public issue or concern is a legitimate topic of a public comment that may be validly published. Assuming that respondent, indeed, caused the publication of his complaint, he may not be held liable for damages for it. The constitutional guarantee of freedom of the speech and of the press includes fair commentaries on matters of public interest.” The Court further said that “[e]ven though JAL is not a public official, the rule on privileged commentaries on matters of public interest applies to it. The privilege applies not only to public officials but extends to a great variety of subjects, and includes matters of public concern, public men, and candidates for office. Hence, pursuant to the Borjal case, there must be an actual malice in order that a discreditable imputation to a public person in his public capacity or to a public official may be actionable. . . . Considering that the published articles involve matters of public interest and that its expressed opinion is not malicious but based on established facts, the imputations against JAL are not actionable. Therefore, JAL may not claim damages for them.” 7. Re: Letter of the UP Law Faculty Entitled “Restoring Integrity: A Statement by the Faculty of the University of the Philippines College of Law on the Allegations of Plagiarism and Misrepresentation in the Supreme Court,” 644 SCRA 543 (2011) May members of a faculty of a College of Law invoke the guarantee of freedom of expression and academic freedom to shield themselves from any possible disciplinary proceedings against them for having come up with a public statement which the Court took to be disrespectful and contemptuous? The Court said no, saying that the legal reasoning used in the past by this Court to rule that freedom of expression is not a defense in administrative cases against lawyers for using intemperate speech in open court or in court submissions can similarly be applied to invocation of academic freedom. The Court also pointed out that a reading of the Show Cause Resolution will plainly show that it was neither the fact that respondents had criticized a decision of the Court nor that they had charged one of its members of plagiarism that motivated the said Resolution – it was the manner of the criticism and the contumacious language by which respondents, who are not parties nor counsels in a pending case have expressed their opinion in favor of the petitioners in said pending case. The right to criticize the courts and judicial officers must be balanced against the equally primordial that the independence of the Judiciary Recoletos Lawconcern Center be protected from due influence or interference.

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The Court further reminded the respondents and everybody else that freedom of expression is not an absolute – there are other societal values that press for recognition, and one such societal value that presses for recognition in the case at bar is the threat to judicial independence and the orderly administration of justice that immoderate, reckless and unfair attacks on judicial decisions and institutions pose. The constitutional right to freedom of expression of members of the Bar may be circumscribed by their ethical duties as lawyers to give due respect to the courts and to uphold the Library Of Liberties vis-à-vis An Arsenal Of Arms public’s faith in theAlegal profession and the justice system.

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And, with higher standing in the community, as an educator, for instance, comes greater responsibility, the Court declaring that the reason that freedom of expression may be so delimited in the

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case of lawyers applies with greater force to the academic freedom of law professors. When the criticism comes from persons outside the profession who may not have a full grasp of legal issues or from individuals whose personal or other interests in making the criticism are obvious, the Court may perhaps tolerate or ignore them, but when law professors are the ones who appear to have lost sight of the boundaries of fair commentary and worse, would justify the same as an exercise of civil liberties, the Court cannot remain silent for such silence would have a grave implication on legal education in the country. The Court failed to see how it can ennoble the profession if it allowed respondents to send a signal to their students that the only way to effectively plead their cases and persuade others to their point of view is to be offensive – the mark of the true intellectual is one who can express his opinions logically and soberly without resort to exaggerated rhetoric and unproductive recriminations. Further, it was pointed out that lawyers, when they teach law, are considered engaged in the practice of law – their actions as law professors must be measured against the same canons of professional responsibility applicable to acts of members of the Bar as the fact of their being law professors is inextricably entwined with the fact that they are lawyers.

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FREEDOM OF RELIGION

A man’s relationship with his idea of a deity or a Supreme Being is something which the State is not supposed to interfere with. Nor is it really competent to deal with it. Like matters of thought, concerns about conscience and belief are a man’s own business. In any case, it is hardly possible for a worldly institution that the government is to try to interest itself in spiritual matters. Religion is a matter of faith and belief, not of scientific fact and verification. And, getting into the act on religious matters could hardly be beneficial to anyone, either for the government itself or for any particular religion. Lessons from the past have made any such unions disastrous and counterproductive. Freedom of religion guarantees complete freedom to believe without any interference from the State. The right to act, or to translate that belief into action, however, may be subject to certain regulations consistent with the mandate of the State to promote the welfare of everyone and to provide for an orderly society. Nevertheless, this right on the part of the government is not to be lightly assumed, as it must have to be weighed carefully with any religion-grounded freedom or interest that may be interfered with. In Estrada v. Escritor, 408 SCRA 1 (2003), the Court noted that in the Philippines we adopt a policy of benevolent neutrality which allows for accommodation of religious practices and morality, and that an act or practice grounded on religious freedom may only be overcome by a compelling state interest. “Benevolent neutrality recognizes that government must pursue its secular goals and interests but at the Recoletos Law Center same time strives to uphold religious liberty to the greatest extent possible within flexible constitutional limits. Thus, although the morality contemplated by laws is secular, benevolent neutrality could allow Review for accommodation of morality based onBar religion, provided2012 it does not offend compelling state interests.” In the final decision on the case, Estrada v. Escritor, 492 SCRA 1 (2006), the Court then went on to allow a court interpreter to continue with her conjugal arrangement with a married man not her husband, since the same was sanctioned by her religion and there was no compelling state interest that would have warranted overriding her religion-grounded practice – ““we find that in this particular case and under these distinct circumstances, respondent Escritor’s conjugal arrangement cannot be penalized as she has made out a caseA forLibrary exemption the lawvis-à-vis based on her right to freedom of religion.” Offrom Liberties Anfundamental Arsenal Of Arms

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I. FREEDOM OF MOVEMENT Man is a peripatetic being. He keeps moving about. He would likely develop bedsores and other maladies if he simply stayed in one place. In any case, being able to move about and go to other places could have an informative and educative benefit, aside from the mere pleasure of going to places and seeing sights other than the same old boring commonplace views. And, for the purpose of going places, even as he cannot run like cheetahs, fly like birds, or swim like fishes, he might as well approximate the same by building vehicles by which he can. And, talking of contemporary events, seen in light of the ease with which men and women move and fly across boundaries, the implications of trans-national illnesses might as well be factored in the calculus. With the swine flu concerns, could one just be irresponsible in his travels? Also, just because you have a vehicle by which you can move about does not necessarily mean that you can use it anywhere and everywhere. You can not insist on using a tricycle to traverse the expressways. In this regard, the following lines from Mirasol v. Department of Public Works and Highways, 490 SCRA 318 (2006), may enlighten. “A toll way is not an ordinary road. As a facility designed to promote the fastest access to certain destinations, its use, operation, and maintenance require close regulation. Public interest and safety require the imposition of certain restrictions on toll ways that do not apply to ordinary roads. As a special kind of road, it is but reasonable that not all forms of transport could use it.” And, of course, this particular guarantee was at the center of the controversy involving the former President, the incumbent President, the Supreme Court and the impeachment of the Chief Justice.

J. RIGHT TO INFORMATION Corollary to the right to express oneself freely is the right to be informed on matters which concern himself and the rest of the body politic. If the people are to make meaningful contributions to their governance, then they must know what is happening inside and outside the halls of government. Basic to this right to be informed is the necessity for laws to be published in order to be effective. It makes no sense presuming knowledge106 if the government itself has not made provisions for the dissemination of statutes and regulations which affect the people’s lives and interests. And here, it must not be lost sight of that not only laws but also administrative circulars which are not merely internal or interpretative which must also be published. On the need to balance the right to know and theCenter government’s need to keep certain things Recoletos Law confidential, the Court had this to say in Senate of the Philippines v. Ermita, 488 SCRA 1 (2006): “A transparent government is one of the hallmarks of a truly2012 republican state. Even in the early history of Bar Review republican thought, however, it has been recognized that the head of government may keep certain information confidential in pursuit of the public interest. . . . History has been witness, however, to the fact that the power to withhold information lends itself to abuse, hence, the necessity to guard it zealously.” And in that spirit, it did the delicate balancing involving the invocation of executive privilege and the power of legislative inquiry, with the concomitant right of the people to know as a consequence of such hearings. It held: “Executive privilege, whether asserted against Congress, the courts, or the A Library Of Liberties vis-à-vis An Arsenal Of Arms public, is recognized only in relation to certain types of information of a sensitive character. While executive privilege is a constitutional concept, a claim thereof may be valid or not depending on the

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“Ignorance of the law excuses no one from compliance therewith.” (Art. 3, Civil Code)

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ground invoked to justify it and the context in which it is made. Noticeably absent is any recognition that executive officials are exempt from the duty to disclose information by the mere fact of being executive officials. Indeed, the extraordinary character of the exemptions indicates that the presumption inclines heavily against executive secrecy and in favor of disclosure. ” Then, noting the exceptional and personal nature of Executive privilege, the Court found “it essential to limit to the President the power to invoke the privilege. She may of course authorize the Executive Secretary to invoke the privilege on her behalf, in which case the Executive Secretary must state that the authority is ‘By order of the President,’ which means that he personally consulted with her. The privilege being an extraordinary power, it must be wielded only by the highest official in the executive hierarchy. In other words, the President may not authorize her subordinates to exercise such power.” How is people’s right to information implicated in all of these? “E.O 464 is concerned only with the demands of Congress for the appearance of executive officials in the hearings conducted by it, and not with the demands of citizens for information pursuant to their right to information on matters of public concern. Petitioners are not amiss in claiming, however, that what is involved in the present controversy is not merely the legislative power of inquiry, but the right of the people to information. There are, it bears noting, 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. . . . To the extent that investigations in aid of legislation are generally conducted in public, however, any executive issuance tending to unduly limit disclosures of information in such investigations necessarily deprives the people of information which, being presumed to be in aid of legislation, is presumed to be a matter of public concern. The citizens are thereby denied access to information which they can use in formulating their own opinions on the matter before Congress – opinions which they can then communicate to their representatives and other government officials through the various legal means allowed by their freedom of expression.”107 Moreover, even as “E.O. 464 applies only to officials of the executive branch, it does not follow that the same is exempt from the need for publication.” Since the subject matter of said executive issuance is a matter of public interest which any member of the body politic may question in the political forums or, if he is a proper party, even in courts of justice, “logic dictates that the challenged order must be covered by the publication requirement. As explained above, E.O. 464 has a direct effect on the right of the people to information on matters of public concern. It is, therefore, a matter of public interest which members of the body politic may question before this Court. Due process thus requires that the people should have been apprised of this issuance before it was implemented.” With regard to judicial records, Hilado v. Reyes, 496 SCRA 282 (2006), teaches us that the term “judicial record” or “court record” does not only refer to the orders, judgment or verdict of the courts Recoletos Law Center – it comprises the official collection of all papers, exhibits and pleadings filed by the parties, all processes issued and returns made thereon, appearances, and word-for-word testimony which took place Bar Review 2012 during the trial and which are in the possession, custody, or control of the judiciary or of the courts for purposes of rendering court decisions. The interest of the public hinges on its right to transparency in the administration of justice, to the end that it will serve to enhance the basic fairness of the judicial proceedings, safeguard the integrity of the fact-finding process, and foster an informed public discussion

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In Sabio v. Gordon, 504 SCRA 704 (2006), the Court said:

A Library Of Liberties An Congress Arsenal Ofthe Arms “[T]he conduct of inquiries in aid of legislation is not onlyvis-à-vis intended to benefit but also citizenry. The people are equally concerned with this proceeding and have the right to participate therein in order to protect their interests. The extent of their participation will largely depend on the information gathered and made known to them. In other words, the right to information really goes hand-in-hand with the constitutional policies of full public disclosure and honesty in the public service. It is meant to enhance the widening role of the citizenry in governmental decision-making as well as in checking abuse in the government.”

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of public affairs. Accordingly, justice requires that all should have free access to the opinions of judges and justices, and it would be against sound public policy to prevent, suppress or keep the earliest knowledge of these from the public. In fine, once a particular information has been determined to be of public concern, the accessory right of access to official records, including judicial records, becomes available. However, there is a difference, between court orders or judgments and the parties’ pleadings and whatever may go with the same. Unlike court orders and decisions, pleadings and other documents filed by parties to a case need not be matters of public concern or interest. Information regarding the financial standing of a person at the time of his death and the manner by which his private estate may ultimately be settled is not a matter of general, public concern or one in which a citizen or the public has an interest by which its legal rights or liabilities may be affected. If the information sought is not a matter of public concern or interest, denial of access thereto does not violate the constitutional right to information. Then, on privacy concerns, People v. Cabalquinto, 502 SCRA 419 (2006), comes to the fore. If one were to wonder why AAA is so familiar a rape victim, it is because of the policy adopted by the Court in Cabalquinto. It is normally the case that the names of the parties involved in a case, from the plaintiffs to defendants, to accused and the victims, are identified in the reports of cases which are disseminated for everyone to read. In Cabalquinto the Court adopted a new policy in regard to crimes involving violence to women and their children. Taking into consideration the need to maintain the confidentiality of information in cases involving violence against women and their children, the Court, starting with said case, withheld the real name of the victim-survivor and used fictitious initials instead to represent her. The Court further declared that, “[l]ikewise, the personal circumstances of the victims-survivors or any other information tending to establish or compromise their identities, as well those of their immediate family or household members, shall not be disclosed.” Subsequently, in People v. Rentoria, 533 SCRA 708 (2007), the Court also decreed that the exact addresses of the victims should be deleted. Thus, if you now read initials that sound like battery sizes or advertisements comparing a named brand with their competitors, you would understand why. 1. Neri v. Senate Committee on Public Accountability and Investigations (Blue Ribbon), 549 SCRA 77 (2008) Following the pronouncements in Senate v. Ermita, this case of Neri puts to actual application what were said in the former. Neri, in response to the Senate Committee’s demands that he answer three (3) questions – (1) whether the President followed up on the NBN project, (2) whether Neri was dictated upon to prioritize ZTE, and, (3) whether the president said go ahead and approve the project after being told about the bribe attempt by former COMELEC Chairman Benjamin Abalos – invoked executive Recoletos privilege, the Executive Secretary advising the Law SenateCenter Committee of the same “by order of the President.” In the meantime, on 6 March 2008, Memorandum Circular No. 151 revoked E.O. 464. Did Review 2012 that affect the invocation of executiveBar privilege? No, it did “not in any way diminish our concept of executive privilege. This is because this concept has Constitutional underpinnings.”

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On executive privilege itself, the Court distinguished between presidential communications privilege and deliberative process privilege. “Presidential communications privilege applies to decision-making of the President while, the deliberative process privilege, to decision-making of executive officials. The first is rooted in the constitutional principle of separation of power and the A Library Of Liberties vis-à-vis An Arsenal Of Arms President’s unique constitutional role; the second on common law privilege. Unlike the deliberative process privilege, the presidential communications privilege applies to documents in their entirety, and covers final and post-decisional materials as well as pre-deliberative ones. As a consequence,

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congressional or judicial negation of the presidential communications privilege is always subject to greater scrutiny than denial of the deliberative process privilege.” In this regard, “the claim of executive privilege is highly recognized in cases where the subject of inquiry relates to a power textually committed by the Constitution to the President, such as the area of military and foreign relations. Under our Constitution, the President is the repository of the commander-in-chief, appointing, pardoning, and diplomatic powers. Consistent with the doctrine of separation of powers, the information relating to these powers may enjoy greater confidentiality than others.” So to what extent may legislative inquiries be allowed into matters that may be claimed to be within executive privilege? “The courts are enjoined to resolve the competing interests of the political branches of the government ‘in the manner that preserves the essential functions of each Branch.’ Here, the record is bereft of any categorical explanation from respondent Committees to show a compelling or critical need for the answers to the three (3) questions in the enactment of a law. Instead, the questions veer more towards the exercise of the legislative oversight function under Section 22 of Article VI rather than Section 21 of the same Article. Senate v. Ermita ruled that the ‘the oversight function of Congress may be facilitated by compulsory process only to the extent that it is performed in pursuit of legislation.’ It is conceded that it is difficult to draw the line between an inquiry in aid of legislation and an inquiry in the exercise of oversight function of Congress. In this regard, much will depend on the content of the questions and the manner the inquiry is conducted.” And in relation to right of the people to information, the Court cautioned: “The members of respondent Committees should not invoke as justification in their exercise of power a right properly belonging to the people in general. This is because when they discharge their power, they do so as public officials and members of Congress.” 2. Akbayan CitizensAction Party v. Aquino, 558 SCRA 468 (2008) The Court reiterated here what it earlier held in an extended unpublished resolution in People’s Movement for Press Freedom (PMPF) v. Manglapus, G.R. No. 84642 (13 September 13, 1988) – the privileged character of diplomatic negotiations has been recognized in this jurisdiction. Here, what is involved is the Japan-Philippine Economic Partnership Agreement (JPEPA). The Court held: “Applying the principles adopted in PMPF v. Manglapus, it is clear that while the final text of the JPEPA may not be kept perpetually confidential – since there should be ‘ample opportunity for discussion before [a treaty] is approved’ – the offers exchanged by the parties during the negotiations continue to be privileged even after the JPEPA is published. It is reasonable to conclude that the Japanese representatives submitted their offers with the understanding that ‘historic confidentiality’ would govern the same. Disclosing these offers could impair the ability of the Philippines to deal not only with Recoletos Law Center A ruling that Philippine offers in Japan but with other foreign governments in future negotiations. treaty negotiations should now be open to public scrutiny would discourage future Philippine Bar 2012 representatives from frankly expressing theirReview views during negotiations. While, on first impression, it appears wise to deter Philippine representatives from entering into compromises, it bears noting that treaty negotiations, or any negotiation for that matter, normally involve a process of quid pro quo, and oftentimes negotiators have to be willing to grant concessions in an area of lesser importance in order to obtain more favorable terms in an area of greater national interest.” Nevertheless, the Court added that such privilege is only presumptive. The Court also noted that the ruling in PMPF v. Manglapus is grounded more Of on Liberties the naturevis-à-vis of treaty An negotiations than on a particular A Library Arsenal as Ofsuch Arms socio-political school of thought.

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It was also noted that “[t]he diplomatic negotiations privilege bears a close resemblance to the

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deliberative process and presidential communications privilege. It may be readily perceived that the rationale for the confidential character of diplomatic negotiations, deliberative process, and presidential communications is similar, if not identical.” The privilege for diplomatic negotiations is meant to encourage a frank exchange of exploratory ideas between the negotiating parties by shielding such negotiations from public view. Similar to the privilege for presidential communications, the diplomatic negotiations privilege seeks, through the same means, to protect the independence in decision-making of the President, particularly in its capacity as “the sole organ of the nation in its external relations, and its sole representative with foreign nations.” And, as with the deliberative process privilege, the privilege accorded to diplomatic negotiations arises, not on account of the content of the information per se, but because the information is part of a process of deliberation which, in pursuit of the public interest, must be presumed confidential. “Clearly, the privilege accorded to diplomatic negotiations follows as a logical consequence from the privileged character of the deliberative process.” 3. Macapagal-Arroyo v. De Lima, – SCRA – (G.R. Nos. 199034 and 199046, 13 December 2011) In this case involving a Temporary Restraining Order issued by the Court against the implementation of DOJ Circular No. 49 which provided for the issuance of Watch List Orders, the Court suddenly came out disclosing in public their bickering behind the confines of the Court walls. The TRO was in favor of GMA and Mike Arroyo, but subject to three (3) conditions: (a) posting of P =2,000,000.00 bond, (b) appointment of a legal representative common to both of them who shall receive subpoena, orders and other legal processes on their behalf, (c) notification of the Philippine embassies or consulates in the foreign countries they may traveling to. The bond was immediately posted but SPA that was filed authorized the legal representative to “produce” not to “receive” summons and other processes. This then led to further deliberations by the Court as to whether TRO was complied with, and whether it was suspended if there was failure to comply. By 7-6,108 the majority held that there was failure to comply, but by another 7-6 vote, the TRO was not considered suspended. In these deliberations, Justice Sereno disagreed with majority of her colleagues and undertook to submit her dissenting opinion on 1 December 2011. She did not submit on said date but on the following day, a Friday, at 4:00 pm. Because of this delay, Justice Velasco requested the Clerk of Court to hold in abeyance the promulgation of Justice Sereno’s opinion so that the matter of the promulgation could be discussed in the next en banc session. Justice Velasco explained that the late submission effectively prevented him from responding to her opinion since he was already booked to leave for Jakarta on 4 December 2011 to attend the ASEAN Chief Justices Roundtable on Environment. He also said that he could have filed a separate opinion on her dissent had she filed it on 1 December 2011. For then, he would have had the rest of December 1 and the whole day of December 2, 2011 to prepare and submit one. On another score, Justice Velasco also said that he felt the need to have the dissenting opinion of Recoletos Law Center Justice Sereno discussed by the Court en banc because it disclosed confidential matters taken up during the deliberations of the Court. Specifically, Justice Velasco noted that “confidential matters, discussed Bar Review 2012 during the November 18, 2011 session, are embodied in the Dissenting Opinion of Justice Sereno promulgated on the same date, to wit: * * * .” Further, he further observed that “Justice Carpio’s confidential letter aforementioned became part of the discussion during the En Banc session on November 29, 2011 which ought not to be divulged to the public.” To him, his fellow justice’s “unpromulgated dissenting opinion appears to me as a clear breach of Sec. 2, Rule 10 of the IRSC, which pronounces, in an unequivocal manner, that ‘Court deliberations are confidential and shall not be Library OfasLiberties vis-à-vis An(IRSC) Arsenal Arms by the Court.’ The disclosed to outsideA parties, except may be provided herein or asOf authorized aforesaid excerpts from the promulgated November 18, 2011 Dissenting Opinion and the unpromulgated

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Leonardo-de Castro, J., was on official business, while Del Castillo, J., was on official leave

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Dissenting Opinion of Justice Sereno are confidential matters taken up during the November 18, 2011 and November 29, 2011 En Banc sessions. They cannot be incorporated in an opinion of a member of the Court as this will be tantamount to a proscribed disclosure to outside parties even if contained in an opinion. Justice Sereno has not shown that such disclosure is allowed by any rule of the IRSC or authorized by the Court. More importantly, it is the Chief Justice’s task under Sec. 2, Rule 10 of the IRSC to record the action or actions taken in each case. The notes of the Chief Justice shall be the bases of the minutes of the session which, in turn, resolutions shall be predicated upon. Nowhere in the Rules does it say that a member can incorporate the deliberations in his/her opinion. This caveat is to obviate the possibility of conflicting statements of facts that will likely arise especially if the member takes a contrary position to that of the majority. Justice Sereno, by stating what are allegedly the result of the deliberations of the En Banc and the votation on cases or incidents, appears to encroach into the functions of the Chief Justice. This should not be countenanced as once a vote is taken on an issue, the majority view then becomes that of the Court. To say that such was not the case, as is the position of J. Sereno, would sow doubt and suspicion on the veracity of the resolutions of the en banc as authenticated by the Clerk of Court. Else the stability of judicial decisions and resolutions is compromised.” Justice Velasco then came up with this passage which appears to be an oxymoron109 – keeping confidential what has already been disclosed to the entire world:110 “Accordingly, I recommend that the portions of the unpromulgated Dissenting Opinion of Justice Sereno delving on what under the Rules are considered confidential be expunged for being violative of Sec. 2, Rule 10 of the IRSC. In the same token, confidential matters contained in this separate opinion should likewise be expunged in the event the Court decides to adopt the recommendation herein made. It should be made clear, however, that what impelled me to include matters in this opinion that only members of the Court ought to know is to show that, should the dissenting opinion of Justice Sereno be promulgated in its present form, it in itself is a departure from the IRSC.” Justice Abad, who was repeatedly referred to in Justice Sereno’s dissent as having been a pivotal Justice, also came up with a separate opinion the need for confidentiality in Court deliberations, explaining how he finally came up with a view different from his initial submission. For one, he saidthat “Justice Sereno has breached this rule, narrating in her dissenting opinion her recollection of the En Banc’s deliberation in executive session on the effect of the petitioners’ failure to comply with the second condition of the temporary restraining order (TRO) that the Court issued in the case.” Enunciating further, he wrote: “When the proceedings in any collegial meeting is intended to be preserved and cited as a memorial of what had taken place in such a meeting, the proceedings are recorded. This is true of Congress of the Philippines and of the Constitutional Convention. But when what is important in a collegial meeting are the actions or the resolutions that the body passed by votes, Recoletos Law Center only such actions or resolutions constitute a faithful recording of the body’s will. This is true of the sessions of the Supreme Court, past or present. The main purpose of En Banc or Division sessions is to Bar Review 2012 in the cases before it. And its decisions deliberate on and decide the disputes between contending parties are, by Constitutional mandate, written by a member upon authority of the Court. The Court’s 109

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Could one still expunge from the people’s consciousness what theoretically should remain legally confidential after the same had been publicly disseminated? 110

The separate opinions discussing confidentiality and disclosing what are supposed to be internal and limited to knowledge of the justices are found in http://sc.judiciary.gov.ph/jurisprudence/resolutions/2011/december2011/199034_reso.pdf, http://sc.judiciary.gov.ph/jurisprudence/resolutions/2011/december2011/199034_carpio.html, h t t p : / / s c . j u d i c i a r yA . g oLibrary v . p h / j u r Of i s p rLiberties u d e n c e / r e svis-à-vis o l u t i o n s / 2An 0 1 1Arsenal / d e c e m b eOf r 2 0 Arms 11/1 9 9 0 34_velasco.htm, http://sc.judiciary.gov.ph/jurisprudence/resolutions/2011/december2011/199034_brion.htm, http://sc.judiciary.gov.ph/jurisprudence/resolutions/2011/december2011/199034_abad.htm, http://sc.judiciary.gov.ph/jurisprudence/resolutions/2011/december2011/199034_sereno.htm (Last visited Monday, 16 April 2012 [10:01:42am])

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deliberations are not evidence of what it voted on. That vote is restricted within the confines of the written order, resolution, or decision that it issues. The Court’s deliberations are confidential simply because the Court realizes that only by making it so can the Justices freely discuss the issues before it. Broadcasting such discussions to the public would have a chilling effect on those who take part in it. One would be careful not to take unpopular positions or make comments that border on the ridiculous, which often is a way of seeing the issues in a different perspective. Personally, I often take temporary positions on issues, weighing each one as the discussion goes. I could take the role of a devil’s advocate before settling on the opposite view. The danger, as what has happened here, is that Justice Carpio and Sereno may have taken something I said out of context or before I made up my mind when the voting took place.” Then, he concluded, “[i]f our deliberations cannot remain confidential, we might as well close down business.” From the discussions in the dissenting opinions of Justice Carpio and Sereno, it was Justice Abad who said then, after the majority concluded that there was failure to comply with the second condition regarding the appointment of a legal representative, that there was no need to state the obvious in the Court’s Resolution that the TRO was suspended. But when the Court eventually voted on the effect of such failure to comply with a condition, he joined the other group to constitute a new majority saying the TRO was not suspended. So how did he explain the apparently conflicting positions? “I may have suggested the point sometime during the debate but I recall withdrawing it when I realized that the TRO did not subject its issuance and effectivity to petitioners’ prior or immediate compliance with such conditions. Indeed, the collective recollection of the majority of the Justices who did not join Justices Carpio and Sereno’s dissents is that the vote was taken to conclude categorically that the non-compliance did not suspend the force and effect of the TRO.” As for Justice Sereno’s dissent, she said that it was part of her role as a magistrate to register her disagreement with the majority if that is how she looks at the issue before the Court. She wrote, inter alia: “I know of no precedent in the entire history of the Supreme Court when the promulgation of a Dissenting Opinion was withheld at the instruction of a fellow Associate Justice or even of a Chief Justice. . . . It is a constitutional right of any Member of the Court to issue his or her Dissenting Opinion; and in cases wherein the issue of compliance with a TRO and the efficacy of that TRO, is being subjected to intense national scrutiny, as in this case, such issuance is also a constitutional duty. Further, I know of no precedent in the entire history of the Supreme Court where the promulgation of a signed Dissenting Opinion has been withheld because it would be the subject of discussion in a next Court session. It is only by our Decisions and Opinions that we, as Members of this Court, are able to account for our actions. Any attempt to muzzle the opinion of a dissenting Justice for the sole reason that the majority will find such writing inconvenient is unconstitutional. This is especially true when the Recoletos Center account of the voting and the reasons for the votesLaw are being contested, as the 18 November 2011 vote on the TRO was.”

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What about the need for confidentiality in Court deliberations? She declared: “I do not believe that a disclosure of the internal deliberations of the Court is warranted in each and every case. My 18 November 2011 Dissenting Opinion, as well as my unpromulgated 2 December 2011 Dissenting Opinion which has now been superseded by this Dissenting Opinion ! finalized and signed this 19th of December 2011 ! made the disclosures only because (1) the promulgated Resolution of 18 November 2011 did not reflect that day’s voting and the reasons for that vote; and (2) the Acting Chief of the PIO continues to A When Library Liberties vis-à-vis Of of Arms misinform the public. the Of accuracy and the content ofAn theArsenal deliberations the Court’s confidential session are being disputed, it is the constitutional duty of the Members of the Court, especially the minority, to speak up and put on record what actually took place. This duty becomes especially necessary

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when an officer of the judiciary, who has been clothed with apparent authority by the Chief Justice, continues to misinform the public, and such behavior is not being corrected. As is highly obvious from the organizational constraints within the Supreme Court, the minority Members of the Court have a limited opportunity to correct the misinforming officer. The minority will also not have a fair chance to correct the resolution, in this case drafted by a ponente designated by the Chief Justice, until after its promulgation. To keep quiet in such times and not make use of opportunities available to the minority to present the truth through Dissenting Opinions would be a disservice to the country.” Then, no discussion of Justice Sereno’s dissent would be complete if one were to omit her obvious mistrust of the official in charge of the Court’s PIO – if one were to read between her lines, that office might as well be spelled out as Public misInformation Office. Consider, for instance, these tidbits from her opinion: “Despite serious efforts from my end to advise an officer of the Supreme Court that no action of the Court should be interpreted, such behavior has continued. This opinion is thus rendered in part to remedy the present deficit in truth”; “[c]ontrary to statements made by the Acting Chief of the Public Information Office (PIO) Atty. Jose Midas P. Marquez, there was no 9-4 voting that upheld the effectivity of the TRO despite non-compliance with condition (ii)”; “Atty. Marquez has been continuing his misstatements on the TRO unabated”; and, “[t]he public continues to be fed information that distorts the facts and the legal import of the voting that took place on the above dates.” Well, so much for an enlightened or benighted public. Bickering, washing dirty linen and disrobing in public – and the hoi polloi is amused with the spectacle. Others might as well wonder, too, as to whatever might have become of honorable men and women. 4. In Re: Production of Court Records and Documents and the Attendance of Court officials and Employees as Witnesses Under the Subpoenas of February 10, 2012 and the Various Letters for the Impeachment Prosecution Panel dated January 19 and 25, 2012, – SCRA – (14 February 2012) Relative to the presentation of evidence against the Chief Justice in his impeachment trial, requests were made with the Supreme Court for the examination and production of certain documents and records, as well as the testimony of Justices, officials and employees of the Court, including the issuance of certified true copies of the rollos and the Agenda and Minutes of the Deliberations relative to certain cases. Here, the Court had to approach the matter from perspective of the principle of separation of powers and the concomitant independence of the judiciary. “From the constitutional perspective, a necessary starting vantage point in this consideration is the principle of separation of powers through the Recoletos Law Center recognition of the independence of each branch of government and through the protection of privileged and confidential documents and processes, as recognized by law, by the rules and by Court Bar Review 2012 policies.” Then, these considerations taken with the principle of comity – the practice of voluntarily observing inter-departmental courtesy in undertaking their assigned constitutional duties for the harmonious working of government – the Court proceeded to state that “[i]nter-departmental courtesy demands that the highest levels of each department be exempt from the compulsory processes of the other departments on matters related to the functions and duties of their office.”

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With the foregoing backdrop, Court then discussed court deliberations and A Library Ofthe Liberties vis-à-vis Anconfidentiality Arsenal Of of Arms records. “In the Judiciary, privileges against disclosure of official records ‘create a hierarchy of rights that protect certain confidential relationships over and above the public’s evidentiary need’ or ‘right to every man’s evidence.’ Accordingly, certain information contained in the records of cases before the

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Supreme Court are considered confidential and are exempt from disclosure. To reiterate, the need arises from the dictates of the integrity of the Court’s decision-making function which may be affected by the disclosure of information. Specifically, the Internal Rules of the Supreme Court (IRSC) prohibits the disclosure of (1) the result of the raffle of cases, (2) the actions taken by the Court on each case included in the agenda of the Court’s session, and (3) the deliberations of the Members in court sessions on cases and matters pending before it.” What about the confidentiality requirement? “[T]he rules on confidentiality will enable the Members of the Court to ‘freely discuss the issues without fear of criticism for holding unpopular positions’ or fear of humiliation for one’s comments. The privilege against disclosure of these kinds of information/communication is known as deliberative process privilege, involving as it does the deliberative process of reaching a decision. ‘Written advice from a variety of individuals is an important element of the government’s decision-making process and that the interchange of advice could be stifled if courts forced the government to disclose those recommendations;’ the privilege is intended ‘to prevent the “chilling” of deliberative communications.’” And, in this regard, confidentiality is not something that the Court alone is claiming for itself. “[A] Senator may invoke legislative privilege when he or she is questioned outside the Senate about information gathered during an executive session of the Senate’s legislative inquiry in aid of legislation. In the same manner, a justice of the court or a judge may invoke judicial privilege in the Senate sitting as an Impeachment Court, for proceedings in the performance of his or her own judicial functions. What applies to magistrates applies with equal force to court officials and employees who are privy to these deliberations. They may likewise claim exemption when asked about this privileged information.” What is then the extent of this rule of confidentiality applicable to courts? The Court explained that while Section 2, Rule 10 of the Internal Rules of the Supreme Court (IRSC) speaks only of the confidentiality of court deliberations, “it is understood that the rule extends to documents and other communications which are part of or are related to the deliberative process. The deliberative process privilege protects from disclosure documents reflecting advisory opinions, recommendations and deliberations that are component parts of the process for formulating governmental decisions and policies. Obviously, the privilege may also be claimed by other court officials and employees when asked to act on these documents and other communications. ” And, how do you draw the parameters of this judicial deliberative process privilege? “To qualify for protection under the deliberative process privilege, the agency must show that the document is both (1) predecisional and (2) deliberative.” Otherwise put, “[a] document is ‘predecisional’ under the deliberative process privilege if it precedes, in temporal sequence, the decision to which it relates. In other words, communications areRecoletos considered predecisional if they were made in the attempt to Law Center reach a final conclusion. A material is ‘deliberative,’ on the other hand, if it reflects the give-and-take of the consultative process. The key question in determining Bar Review 2012whether the material is deliberative in nature is whether disclosure of the information would discourage candid discussion within the agency. If the disclosure of the information would expose the government’s decisionmaking process in a way that discourages candid discussion among the decision-makers (thereby undermining the courts’ ability to perform their functions), the information is deemed privileged. Court records which are ‘predecisional’ and ‘deliberative’ in nature are thus protected and cannot be the subject of a subpoena if judicial privilege is to be preserved. The privilege in general insulates the Judiciary from A Library Of Liberties An Arsenal Of justices, Arms judges, and court an improper intrusion into the functions of thevis-à-vis judicial branch and shields officials and employees from public scrutiny or the pressure of public opinion that would impair a judge’s ability to render impartial decisions. The deliberative process can be impaired by undue exposure

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of the decision-making process to public scrutiny before or even after the decision is made,. . .” In addition, “two other grounds may be cited for denying access to court records, as well as preventing members of the bench, from being subjected to compulsory process: (1) the disqualification by reason of privileged communication and (2) the pendency of an action or matter” – “Members of the Court may not be compelled to testify in the impeachment proceedings against the Chief Justice or other Members of the Court about information they acquired in the performance of their official function of adjudication, such as information on how deliberations were conducted or the material inputs that the justices used in decision-making, because the end-result would be the disclosure of confidential information that could subject them to criminal prosecution. Such act violates judicial privilege (or the equivalent of executive privilege) as it pertains to the exercise of the constitutional mandate of adjudication.” How about court officials and employees? Well, the same rules on confidentiality apply to them. In this regard, too, note must be taken of the fact that “[u]nder existing laws, neither the Impeachment Court nor the Senate has the power to grant immunity from criminal prosecution for revealing confidential information.” The Court further clarified that the rule on confidentiality applied to internal deliberations and actions (adjudicatory functions) as distinguished from external matters. “To state the rule differently, Justices of the Court cannot be compelled to testify on matters relating to the internal deliberations and actions of the Court, in the exercise of their adjudicatory functions and duties. This is to be differentiated from a situation where the testimony is on a matter which is external to their adjudicatory functions and duties. For example, where the ground cited in an impeachment complaint is bribery, a Justice may be called as a witness in the impeachment of another Justice, as bribery is a matter external to or is not connected with the adjudicatory functions and duties of a magistrate. A Justice, however, may not be called to testify on the arguments the accused Justice presented in the internal debates as these constitute details of the deliberative process.” On the need to subpoena court personnel to testify, the court said, “witnesses need not be summoned to testify on matters of public record” because “entries in official records may be presented without the necessity of presenting in court the officer or person who made the entries. Entries in public or official books or records may be proved by the production of the books or records themselves or by a copy certified by the legal keeper thereof. These records, however, may be presented and marked in evidence only where they are not excluded by reasons of privilege and the other reasons discussed above.” Further, “[t]he reasons for this rule are necessity and trustworthiness. Necessity consists in the inconvenience and difficulty of requiring the official’s attendance as a witness to testify to the innumerable transactions in the course of his duty. A public officer is excused from appearing in court in order that public business may not be interrupted, Recoletos Law Center hampered or delayed. * * * Trustworthiness is a reason because of the presumption of regularity of performance of official duty. The lawBar reposes a particular Review 2012confidence in public officers that it presumes that they will discharge their several trusts with accuracy and fidelity; and therefore, whatever acts they do in the discharge of their public duty may be given in evidence and shall be taken to be true under such a degree of caution as the nature and circumstances of each case may appear to require.”

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And to make it clear for everyone, the Court declared: “As a last point and mainly for purposes of stress, the privilegesAdiscussed that applyvis-à-vis to justicesAn andArsenal judges apply mutatis mutandis to court Library above Of Liberties Of Arms officials and employees with respect to their official functions. If the intent only is for them to identify and certify to the existence and genuineness of documents within their custody or control that are not otherwise confidential or privileged under the above discussed rules, their presence before the

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Impeachment Court can be and should be excused where certified copies of these non-privileged and non-confidential documents can be provided.” In the end, the Court said: To summarize these rules, the following are privileged documents or communications, and are not subject to disclosure: (1) Court actions such as the result of the raffle of cases and the actions taken by the Court on each case included in the agenda of the Court’s session on acts done material to pending cases, except where a party litigant requests information on the result of the raffle of the case, pursuant to Rule 7, Section 3 of the IRSC; (2) Court deliberations or the deliberations of the Members in court sessions on cases and matters pending before the Court; (3) Court records which are “predecisional” and “deliberative” in nature, in particular, documents and other communications which are part of or related to the deliberative process, i.e., notes, drafts, research papers, internal discussions, internal memoranda, records of internal deliberations, and similar papers. (4) Confidential Information secured by justices, judges, court officials and employees in the course of their official functions, mentioned in (2) and (3) above, are privileged even after their term of office. (5) Records of cases that are still pending for decision are privileged materials that cannot be disclosed, except only for pleadings, orders and resolutions that have been made available by the court to the general public. (6) The principle of comity or inter-departmental courtesy demands that the highest officials of each department be exempt from the compulsory processes of the other departments. (7) These privileges belong to the Supreme Court as an institution, not to any justice or judge in his or her individual capacity. Since the Court is higher than the individual justices or judges, no sitting or retired justice or judge, not even the Chief Justice, may claim exception without the consent of the Court.

Everyone, take note. Know what could properly be known as to what are discussed in and pass through the portals of the courts. But when you really come down to fundamentals, you find reassurance, confidence and liberation in being able to bring out openly what you want to say, free from the fetters of the fear that sooner of later what you say may come to the ears of those not really meant to know. 5. Philippine Savings Bank v. Senate Impeachment Court, – SCRA – (G.R. No. 200238, 9 February 2012) Still on the on impeachment of Chief Justice Corona, one of the issues that cropped up is the need to look into his alleged foreign currency deposit. There is a law, however, which stands in the way – The Foreign Currency Act (R.A. No. 6426) – which explicitly provides for a single exception to the confidentiality, i.e., if the depositor consents. Because of this problem, the bank where the purported deposits are sought a TRO from the Supreme Court, which the Court granted. The Court111, in issuing Center the TRO, explained, citing earlierRecoletos cases: “A clearLaw right to maintain the confidentiality of the foreign currency deposits of the Chief Justice is provided under Section 8 of Republic Act No. 6426, otherwise Bar 2012 (RA 6426). This law establishes the known as the Foreign Currency Deposit ActReview of the Philippines absolute confidentiality of foreign currency deposits. * * * [W]here the accounts in question are U.S. dollar deposits, the applicable law is not Republic Act No. 1405 but RA 6426. * * * Also, while impeachment may be an exception to the secrecy of bank deposits under RA 1405, it is not an exemption to the absolute confidentiality of foreign currency deposits under RA 6426.”

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Justice Brion, in particular, citing Republic of the Philippines v. Eugenio, 545 SCRA 384 (2008), A Library Of Liberties vis-à-vis An Arsenal Of Arms 111

Concurring – JJ. De Castro, Brion, Bersamin, Abad, Villarama, Perez, Mendoza and Reyes – the Separate Concurring Opinions to follow; Dissenting – JJ. Carpio, Peralta, Del Castillo, Sereno and Bernabe – the Separate Dissenting Opinions to follow; Inhibiting – Chief Justice Corona and Justice Velasco.

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is of the view that “bank accounts laws are not covered by the right to information under Article III, Section 7 and the requirement of full public disclosure under Article II, Section 28 of the Constitution, which is statutorily implemented through RA No. 6713 (Code of Conduct and Ethical Standards for Public Officials and Employees). The Constitution in fact declares that the public’s right to information is ‘subject to such limitations as may be provided by law.’ The implied repeal of inconsistent laws that RA No. 6713 mandates cannot be interpreted as a repeal of the express substantive right granted to confidentiality under Section 8 of RA No. 6426, even if the latter was enacted earlier.” In his dissent, Justice Carpio said that “the majority ruling makes a mockery of all existing laws designed to insure transparency and good governance in public service. The majority ruling in effect advises all government officials and employees that they can legally evade reporting their actual assets in their Statement of Assets, Liabilities and Net Worth, which is required by the Constitution and RA Nos. 3019 and 6713, by simply opening foreign currency deposit accounts with local banks.” Adverting to R.A. No. 6713, he submitted: “Section 8 of RA No. 6713, as amended, mandates the disclosure of the assets of government officials and employees who ‘have an obligation’ to disclose their assets. Moreover, Section 8 expressly states that ‘the public has the right to know the assets’ of government officials and employees.” Accordingly, “the government officials and employees’ ‘obligation’ to disclose their assets, and the people’s ‘right to know’ such assets, as expressly mandated by Section 8 of RA No. 6713, prevails over the secrecy of foreign currency deposits under Section 8 of RA No. 6426, granting that such secrecy applies to Philippine citizens.” In fine, “[a] government official or employee who refuses to be accountable to the people by not disclosing assets he admittedly owns, despite his ‘obligation’ to so disclose to the people, who have ‘the right to know’ his assets, puts himself beyond accountability to the people.” The view of Justice Carpio on public accountability as a basis for allowing for disclosure was also reflected in Justice Sereno’s dissenting opinion. To her, “there appears to be a constitutionally-generated permission on the latter’s part to disclose the FCDs.” In other words, “because of the fact that the Chief Justice is a public officer, he is constitutionally and statutorily mandated to perform a positive duty to disclose all of his assets and liabilities. This already operates as the consent required by law.” She likewise explained: “More important, what the people at the gut level understand to be true is that they have, through the Constitution, enshrined the doctrine on the accountability of public officers, on the fundamental belief that public office is a public trust. It cannot get plainer, but truer, than that. The Constitution wove, not only in the central motif on public accountability in Article XI of the Constitution, but in every thread of its fabric, this legally demandable notion of public accountability. No interpretation of law nor procedural requirement can be viewed in any manner that negates this bedrock principle of Philippine constitutional governance.” The way she sees the picture, “for all public Recoletos Law Center officers, what is absolute is not the confidentiality privilege, but the obligation of disclosure” and the “Court’s Resolution results in an iniquitous situation, where the supreme interest of the public to Review 2012 maintain accountability among publicBar officers is relegated to the sidelines in favor of a statutory privilege that arose purely out of economic considerations.”

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6. Air Philippines Corporation v. Pennswell, Inc., 540 SCRA 215 (2007) Can a party demand the other party to disclose the ingredients and chemical components of the latter’s products on the assertion that the former had been misled into buying those items on the fraudulent claim that are different from earlier ones itAn hadArsenal earlier bought, i.e., – that they are really Athey Library Of Liberties vis-à-vis Of Arms the same but presented and packaged as different? This basically is the query in this case. This is a collection suit for the purchase price of certain items. Air Philippines refused to pay,

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claiming fraud as to certain items – lubricants, grease and fluid – being mislabeled as belonging to a new line but were in truth and in fact, identical with products it had previously purchased. They merely carried altered names and labels, or so Air Philippines asserted. In the collection suit filed by Pennswell, Air Philippines moved to compel the former to give a detailed list of the ingredients and chemical components to prove its defense. Pensswell opposed, claiming that the data sought to be disclosed involve trade secrets. The Court agreed. “That trade secrets are of a privileged nature is beyond quibble. The protection that this jurisdiction affords to trade secrets is evident in our laws.” Further, the Court said: “Jurisprudence has consistently acknowledged the private character of trade secrets. There is a privilege not to disclose one’s trade secrets. Foremost, this Court has declared that trade secrets and banking transactions are among the recognized restrictions to the right of the people to information as embodied in the Constitution.” So is the confidentiality of trade secrets absolute? No, “the privilege is not absolute; the trial court may compel disclosure where it is indispensable for doing justice. We do not, however, find reason to except respondent’s trade secrets from the application of the rule on privilege. The revelation of respondent’s trade secrets serves no better purpose to the disposition of the main case pending with the RTC, which is on the collection of a sum of money. As can be gleaned from the facts, petitioner received respondent’s goods in trade in the normal course of business. To be sure, there are defenses under the laws of contracts and sales available to petitioner. On the other hand, the greater interest of justice ought to favor respondent as the holder of trade secrets. If we were to weigh the conflicting interests between the parties, we rule in favor of the greater interest of respondent. Trade secrets should receive greater protection from discovery, because they derive economic value from being generally unknown and not readily ascertainable by the public. To the mind of this Court, petitioner was not able to show a compelling reason for us to lift the veil of confidentiality which shields respondent’s trade secrets.” 7. Antolin v. Domondon, 623 SCRA 163 (2010) May someone who took a professional board examination and who did not pass demand that the questionnaires, answer sheets, answer keys and explanations of the grading system be made available to her? What if she passed in the meantime, would that make the demand moot? The Court said yes, the examinee may demand, subject to some qualifications, and then left the matter to be decided by the trial court in the meantime. Also, passing the examination in the meantime would not render the case moot. “In this jurisdiction, any citizen may challenge any attempt to obstruct the exercise of his or her right to information and may seek its enforcement by mandamus. And since every citizen possesses the inherent right to be informed by the mere fact of citizenship, we find that petitioner’s belated passing of the CPA Board Exams does not automatically mean that her interest in the Examination Papers has become mere superfluity. Undoubtedly, the constitutional question presented, in view of the likelihood Recoletos Law Center that the issues in this case will be repeated, warrants review.”

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The Court then proceeded to hold in this wise: “We are prepared to concede that national board examinations such as the CPA Board Exams are matters of public concern. The populace in general, and the examinees in particular, would understandably be interested in the fair and competent administration of these exams in order to ensure that only those qualified are admitted into the accounting profession. And as with all matters pedagogical, these examinations could be not merely quantitative means of assessment, but also means to further improve the teaching and learning of the art and science of Library Of Arms accounting. On theAother hand,Of weLiberties do realize vis-à-vis that there An mayArsenal be valid reasons to limit access to the Examination Papers in order to properly administer the exam. More than the mere convenience of the examiner, it may well be that there exist inherent difficulties in the preparation, generation, encoding,

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administration, and checking of these multiple choice exams that require that the questions and answers remain confidential for a limited duration. However, the PRC is not a party to these proceedings. They have not been given an opportunity to explain the reasons behind their regulations or articulate the justification for keeping the Examination Documents confidential. In view of the far-reaching implications of this case, which may impact on every board examination administered by the PRC, and in order that all relevant issues may be ventilated, we deem it best to remand these cases to the RTC for further proceedings.” 8. GMA Network, Inc. v. Movie and Television Review and Classification Board, 514 SCRA 191 (2007) This highlights the importance not only of publication but also of submission and registration of administrative rules and regulations to the Office of the National Administrative Register (ONAR). GMA Network aired, through EMC Channel 27, “Muro Ami: The Making” without first securing a permit from MTRCB pursuant to §7, PD 1986. For this the MRTCB imposed on said broadcast company on 7 January 2000 the penalty of suspension of broadcast for seven (7) days, which penalty GMA complied with. Nevertheless, GMA questioned the authority of MTRCB to require prior submission. The Court, harking back to what it said in MTRCB v. ABS-CBN, 448 SCRA 575 (2005), held that the MTRCB is empowered to screen, review and examine all motion pictures and television programs including publicity materials, including a public affairs program – described as a variety of news treatment, a cross between pure television news and news-related commentaries, analysis and/or exchange of opinions. Nevertheless, the Court held that while MTRCB had jurisdiction over the subject program, Memorandum Circular 98-17, which was the basis of the suspension order, was not binding on GMA since it was not registered yet with the ONAR as of 27 January 2000. “The Administrative Code of 1987, particularly Section 3 thereof, expressly requires each agency to file with the Office of the National Administrative Register (ONAR) of the University of the Philippines Law Center three certified copies of every rule adopted by it. Administrative issuances which are not published or filed with the ONAR are ineffective and may not be enforced.” Being ineffective and unenforceable, GMA was not bound by said circular and “should not have been meted the sanction provided thereunder.” It leaves a bad taste when someone is told that he should not have been punished at all, but then it is conveyed to him when he had already served his sentence. The need for filing with the ONAR was further highlighted in Republic v. Pilipinas Shell Petroleum Corporation, 550 SCRA 680 (2008), and Securities and Exchange Commission v. PICOP Resources, Inc., 566 SCRA 451 (2008).

Recoletos Law Center RIGHT OF ASSOCIATIONBar Review 2012

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Man being a social being necessarily finds it part of his natural inclinations that he associate with others. He would not relish the idea of simply being an island all by himself, isolated from the rest or the mainland. And the act of so joining others could be a form of expression – you link up with people who are likely to share your interests, sentiments, philosophy, ideology or affection.1 And, the right to associate may also include as a necessary corollary, the right not to associate, though such latter right 2 may not justify a lawyer in refusing to pay his dues to the An IBP.Arsenal A Library Of Liberties vis-à-vis Of Arms

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See, e.g., Griswold v. Connecticut, 381 U.S. 479 (1965)

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In re Edillon, 84 SCRA 554 (1978)

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The right to associate may also mean that an organization would have the right to choose who its members are, excluding or expelling those whose personality traits may run into conflict with the group’s philosophy,3 or refusing participation to a group in a parade where that group’s message would not be in conformity with the organizer’s own idea of what the activity is all about.4 1. Bank of the Philippine Islands v. BPI Employees Union-Davao Chapter-Federation of Unions in BPI Unibank, 627 SCRA 590 (2010) If two corporations merge, one of which had a CBA with its labor organization which contained a Union Shop Clause requiring new employees to join as a condition for retaining their employment while the one which was absorbed did not have, could the employees of the latter be obligated to join the labor union of the surviving entity? The Court said yes. “In the case at bar, since the former FEBTC employees are deemed covered by the Union Shop Clause, they are required to join the certified bargaining agent, which supposedly has gathered the support of the majority of workers within the bargaining unit in the appropriate certification proceeding. Their joining the certified union would, in fact, be in the best interests of the former FEBTC employees for it unites their interests with the majority of employees in the bargaining unit. It encourages employee solidarity and affords sufficient protection to the majority status of the union during the life of the CBA which are the precisely the objectives of union security clauses, such as the Union Shop Clause involved herein. . . . [S]ettled jurisprudence has already swung the balance in favor of unionism, in recognition that ultimately the individual employee will be benefited by that policy. In the hierarchy of constitutional values, this Court has repeatedly held that the right to abstain from joining a labor organization is subordinate to the policy of encouraging unionism as an instrument of social justice.” The Court concluded: “In sum, this Court finds it reasonable and just to conclude that the Union Shop Clause of the CBA covers the former FEBTC employees who were hired/employed by BPI during the effectivity of the CBA in a manner which petitioner describes as ‘absorption.’ A contrary appreciation of the facts of this case would, undoubtedly, lead to an inequitable and very volatile labor situation which this Court has consistently ruled against.”

L. EMINENT DOMAIN While the government may negotiate with the owner for the acquisition of the latter’s property, such a procedure may not always result in a successful transaction, however, especially if there is need for more expeditious action, or, the owner may simply be disinclined to sell. Thus, this coercive power of the government to take property even if the owner opposes, provided the same is for public use and there Recoletos Law Center is payment of just compensation. Accordingly, questions on expropriation may deal with issues of necessity,5 or arbitrary exercise,6 as well as the justness and timeliness of the payment for the property Bar Review 2012 taken.7 As for judicial determination of just compensation, the Court has reverted to the old rule that the 3

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See Boy Scouts of America v. Dale, 530 U.S. 640 (2000), where the U.S. Supreme Court upheld the right of the Boy Scouts to exclude a homosexual. See also Ordinario v. People, 428 SCRA 773 (2004), which involves a teacher in Boy Scout who was convicted of sexual assault for putting his organ into the mouth of a male ten-year old pupil. 4

Hurley v. Irish American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995)

5

City of Manila v. Chinese Community of Manila, 40 Phil. 349 (1919)

6

De Knecht v. Bautista, 100 SCRA 660 (1980)

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A Library Of Liberties vis-à-vis An Arsenal Of Arms

The interest rate has been set at twelve per centum (12%) per annum, to be computed from the time of taking to the date of payment, which rate should help eliminate the constant fluctuation and inflation of the value of currency over time. (Republic v. Court of Appeals, 383 SCRA 611 [2002]; Reyes v. National Housing Authority, 395 SCRA 494 [2003]; Republic v. Court of Appeals., 454 SCRA 516

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same is a judicial function, not one to be simply determined by looking at what is indicated in the tax declaration.8 With regard to public use, the same has also been construed to have a more expansive meaning so as to cover certain purposes which could not have been included in the past, such as tourism,9 and setting up the birthplace of a known religious leader as a National Historical Landmark.10 Also, considering that the power of eminent domain involves the strong arm of the law to compel an unwilling person to part with his property, extreme caution is called for in resolving complaints for condemnation – when a serious doubt arises regarding the supposed public use of property, the doubt should be resolved in favor of the property owner and against the State,11 or, that eminent domain cases are to be strictly construed against the expropriator.12 This perspective would make it easier to understand the Court’s recent rulings mandating payment within five (5) years from finality of the judgment of expropriation, otherwise the owner would be entitled to demand recovery of possession,13 as well as the repurchase of the property when the purpose for which it was expropriated is abandoned.14 Further, note that the exercise of the power of eminent domain is not subject to the strictures of res judicata or the principle of law of the case. The mere fact that the government or its agencies may not have prevailed in the first attempt to expropriate a property does not preclude them from doing so again, making adjustments or rectifications in whatever may have been the earlier deficiencies.15 1. Manotok Realty, Inc. v. CLT Realty Development Corporation, 582 SCRA 583 (2009) Here, the Court spoke of the “cleansing effect” of expropriation proceedings. “The fact of expropriation is extremely significant, for titles acquired by the State by way of expropriation are deemed cleansed of whatever previous flaws may have attended these titles. . . . ‘In an [in] rem proceeding, condemnation acts upon the property. After condemnation, the paramount title is in the public under a new and independent title; thus, by giving notice to all claimants to a disputed title, condemnation proceedings provide a judicial process for securing better title against all the world than may be obtained by voluntary conveyance.’” In this particular case, the Court noted that “[i]n annulling the Manotok titles, focus was laid on the alleged defects of TCT No. 4211 issued in September of 1918. However, TCT No. 4211 was issued decades before the property was expropriated. Thus, any and all defects that may have attended that particular title would have been purged when the property covered by it was subsequently acquired by the State through eminent domain.” 2. Republic v. Phil-Ville Development and Housing Corporation, 525 SCRA 776 (2007) Because an order of expropriation merely determines the authority to exercise the power of eminent Recoletos Center domain and the propriety of such exercise, its Law issuance does not hinge on the payment of just compensation. Thus, payment of just compensation is not a condition sine qua non to the issuance of

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[2005])

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EPZA v. Dulay, 149 SCRA 305 (1987)

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Heirs of Juancho Ardona v. Reyes, 125 SCRA 220 (1983)

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Manosca v. Court of Appeals, 252 SCRA 412 (1996)

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Barangay Sindalan, San Fernando, Pampanga v. Court of Appeals, 518 SCRA 649 (2007)

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OfCorporation Liberties vis-à-vis An 493 Arsenal San Roque Realty A andLibrary Development v. Republic, 532 SCRA (2007)

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Republic v. Lim, 462 SCRA 265 (2005)

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Mactan-Cebu International Airport Authority v. Lozada, Sr., 613 SCRA 618 (2010)

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See Municipality of Parañaque v. V.M. Realty Corporation, 292 SCRA 678 (1998)

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an order of expropriation – it is the transfer of title to the land expropriated that must wait until the indemnity is actually paid. 3. Ortega v. City of Cebu, 602 SCRA 601 (2009) Where the expropriation case had long become final and executory, both the Order of expropriation and the Order fixing just compensation can no longer be modified – the expropriator can no longer withdraw from the expropriation proceedings. Also, the expropriation court cannot, by itself, order the expropriating local government to enact an appropriation ordinance in order to satisfy its judgment – the land owner must file a separate mandamus case for that purpose. 4. Manapat v. Court of Appeals, 536 SCRA 32 (2007) “[T]he foundation of the right to exercise eminent domain is genuine necessity, and that necessity must be of a public character. As a rule, the determination of whether there is genuine necessity for the exercise is a justiciable question. However, when the power is exercised by the Legislature, the question of necessity is essentially a political question.” As for the concept of public use, the same is a “flexible and evolving concept influenced by changing conditions. At present, it may not be amiss to state that whatever is beneficially employed for the general welfare satisfies the requirement of public use.” It “now includes the broader notion of indirect public benefit or advantage, including in particular, urban land reform and housing.” If a person might be one of the intended beneficiaries of the so-called “socialized housing,” does he have the right to object to the expropriation of the land that he occupies on the contention that it would be incongruous for government to take his land away from him only to give it back to him? The Court said that “[t]his contention sadly fails to comprehend the public purpose for the taking under the ‘socialized housing’ program. The parcels of land subject of the expropriation are, precisely, being taken so that they can be subdivided into much smaller lots – at an average of 66.5 square meters per lot – for distribution to deserving dwellers in the area. Upon the completion of the project, Manapat, and those similarly situated as he, cannot assert any right to be awarded the very same lots they currently occupy, nor be entitled to the same area of the land they now have.” Earlier, in Masikip v. City of Pasig, 479 SCRA 391 (2006), the Court said: “Where the taking by the State of private property is done for the benefit of a small community [such as a homeowners’ association] which seeks to have its own sports and recreational facility, notwithstanding that there is such a recreational facility only a short distance away, such taking cannot be considered to be for public use. Its expropriation is not valid.”Recoletos The members Law of the association Center are apparently desirous of having their own private playground and recreational facility. The purpose is not clearly and categorically Review public. The Court also sympathized Bar with the plight of2012 persons whose property are sought to be expropriated. “The right to own and possess property is one of the most cherished rights of men. It is so fundamental that it has been written into organic law of every nation where the rule of law prevails. Unless the requisite of genuine necessity for the expropriation of one’s property is clearly established, it shall be the duty of the courts to protect the rights of individuals to their private property. Important as the power of eminent domain may be, the inviolable sanctity which the Constitution attaches to the property of the individual requires not only that the purpose for the taking of private property be A Library Of Liberties vis-à-vis An Arsenal Of Arms specified. The genuine necessity for the taking, which must be of a public character, must also be shown to exist.”

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5. Barangay Sindalan, San Fernando, Pampanga v. Court of Appeals, 518 SCRA 649 (2007) In this case a barangay sought to expropriate private lands purportedly to be used as a feeder road. It was shown by the land owners, however, that their lands would actually be used to benefit only the homeowners of a private subdivision in the place, whose developer would be excused from complying with its obligation to secure a right-of-way for its lot buyers. The Court held, among others that: “Expropriation, if misused or abused, would trench on the property rights of individuals without due process of law.” Further, it declared that the failure of the subdivision owner to provide an access road does not shift the burden to barangay itself. To deprive the private persons of their property instead of compelling the subdivision owner to comply with its obligation under the law is an abuse of the power of eminent domain and is patently illegal, which misuse of public funds for a private purpose could amount to a possible case of malversation. The Court added: “Taking an individual’s private property is a deprivation which can only be justified by a higher good—which is public use—and can only be counterbalanced by just compensation. Without these safeguards, the taking of property would not only be unlawful, immoral, and null and void, but would also constitute a gross and condemnable transgression of an individual’s basic right to property as well. For this reason, courts should be more vigilant in protecting the rights of the property owner and must perform a more thorough and diligent scrutiny of the alleged public purpose behind the expropriation. Extreme caution is called for in resolving complaints for condemnation, such that when a serious doubt arises regarding the supposed public use of property, the doubt should be resolved in favor of the property owner and against the State.” 6. Republic v. Holy Trinity Realty Development Corp., 551 SCRA 303 (2008) In case of expropriation under R.A. No. 8974, if the payment has been deposited in the bank in the meantime, to whom should the interest belong? The interest that accrues in the meantime goes to the owner since the principal amount was supposed to have been directly paid to him in the first place. “Under Section 4 of Republic Act No. 8974, the implementing agency of the government pays just compensation twice: (1) immediately upon the filing of the complaint, where the amount to be paid is 100% of the value of the property based on the current relevant zonal valuation of the BIR (initial payment); and (2) when the decision of the court in the determination of just compensation becomes final and executory, where the implementing agency shall pay the owner the difference between the amount already paid and the just compensation as determined by the court (final payment).” 7. Tiongson v. National Housing Authority, 558 SCRA 56 (2008) In this case the NHA took possession of the properties way back in 1978 pursuant to P.D. Nos. 1669 Recoletos Law Center and 1670. Subsequently, however, in Manotok v. National Housing Authority, 150 SCRA 89 (1987), said decrees were declared unconstitutional. Following that decision, the NHA filed expropriation Bar Review 2012 proceedings, also in 1987. What should be the reckoning date for the computation of just compensation – 1978 or 1987? Where the initial taking of a property subject to expropriation was by virtue of a law which was subsequently declared unconstitutional, just compensation is to be determined as of the date of the filing of the complaint, not the date of taking.

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8. Nepomuceno v. City of Surigao, 560 SCRA 41 (2008) Library OfofLiberties vis-à-vis An Arsenal Of Arms proceeding being Here, there was A taking in 1960 land for use a city road, without an expropriation first instituted. Since no amicable settlement was effected, the owners subsequently filed years later an action for recovery or payment of market value, and they claimed valuation at time of actual payment.

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When is the reckoning date? The Court held that “where actual taking is made without the benefit of expropriation proceedings and the owner seeks recovery of the possession of the property prior to the filing of expropriation proceedings, it is the value of the property at the time of taking that is controlling for purposes of compensation.” Thus, the value of the property must be ascertained as of 1960 when it was actually taken. It is as of that time that the real measure of their loss may fairly be adjudged. The value, once fixed, shall earn interest at the legal rate until full payment is effected, conformably with other principles laid down by case law. Can exemplary damages be recovered? “Exemplary damages would have been appropriate had it been shown that the city government indeed misused its power of eminent domain. In this case, both the RTC and the CA found there was no socially deleterious action or misuse of power to speak of.” 9. Figuracion v. Libi, 539 SCRA 50 (2007) This case involves an expropriation for a local road and the subsequent decision of the City of Cebu to reconvey an unused portion of the same. On the right of a local government unit to sell roads, the Court declared that, as a general rule, local roads used for public service are considered public property under the absolute control of Congress; hence, local governments have no authority to control or regulate their use. However, under Section 10, Chapter II of the Local Government Code, Congress delegated to political subdivisions some control of local roads. For a valid reconveyance, one of the requirements is a showing that the former owner or his successors-in-interest has the right to repurchase said property. As to the right to repurchase itself, it went back to Fery v. Municipality of Cabanatuan, 42 Phil 28 (1921): “If, for example, land is expropriated for a particular purpose, with the condition that when that purpose is ended or abandoned the property shall return to its former owner, then, of course, when the purpose is terminated or abandoned the former owner reacquires the property so expropriated. . . . If, upon the contrary, however, the decree of expropriation gives to the entity a fee simple title, then, of course, the land becomes the absolute property of the expropriator, whether it be the State, a province, or municipality, and in that case the non-user does not have the effect of defeating the title acquired by the expropriation proceedings.” Then it held that “[t]he enunciated rule in Fery is still controlling to this day. However, in Moreno v. Mactan-Cebu International Airport Authority, we clarified that where there is preponderant evidence of the existence of a right to repurchase, the former owner of an expropriated property is entitled to exercise such option once the public purpose for which the local government initially intended the expropriated property is abandoned or not pursued. . . . [However,] where there is insufficient evidence that the former owners of expropriated properties were granted the right to repurchase the same, the latter may not insist on recovering their properties even when the public purpose for which said properties were expropriated is abandoned.” Recoletos Law Center 10. Mactan-Cebu International Airport Authority v. Lozada, Sr., 613 SCRA 618 (2010)

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When property taken through eminent domain is no longer needed for the public purpose for which it was expropriated, does the former owner have the right to repurchase it? Generally, no. And this traces back to Fery v. Municipality of Cabanatuan. In this case of Mactan-Cebu, the Court revisited Fery and came up with a new rule. After noting that Fery was not decided pursuant to our now sacredly held constitutional right that private property shall not be taken for public use without just compensation, it proceeded to declare “[t]hese partake ofAn the Arsenal nature of implied conditions that should Athat Library Ofrequirements Liberties vis-à-vis Of Arms be complied with to enable the condemnor to keep the property expropriated. More particularly, with respect to the element of public use, the expropriator should commit to use the property pursuant to the purpose stated in the petition for expropriation filed, failing which, it should file another petition for the

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new purpose. If not, it is then incumbent upon the expropriator to return the said property to its private owner, if the latter desires to reacquire the same. Otherwise, the judgment of expropriation suffers an intrinsic flaw, as it would lack one indispensable element for the proper exercise of the power of eminent domain, namely, the particular public purpose for which the property will be devoted. Accordingly, the private property owner would be denied due process of law, and the judgment would violate the property owner’s right to justice, fairness, and equity.” Then, it held: “In light of these premises, we now expressly hold that the taking of private property, consequent to the Government’s exercise of its power of eminent domain, is always subject to the condition that the property be devoted to the specific public purpose for which it was taken. Corollarily, if this particular purpose or intent is not initiated or not at all pursued, and is peremptorily abandoned, then the former owners, if they so desire, may seek the reversion of the property, subject to the return of the amount of just compensation received. In such a case, the exercise of the power of eminent domain has become improper for lack of the required factual justification.” 11. Vda. de Ouano v. Republic, 642 SCRA 384 (2011) This case reiterates Heirs of Moreno16 and Lozada, making the application of the principle enunciated in Moreno and Lozada more explicit. Here, the Court said, “failing to keep its end of the bargain, MCIAA can be compelled by the former landowners to reconvey the parcels of land to them, otherwise, they would be denied the use of their properties upon a state of affairs that was not conceived nor contemplated when the expropriation was authorized. In effect, the government merely held the properties condemned in trust until the proposed public use or purpose for which the lots were condemned was actually consummated by the government. Since the government failed to perform the obligation that is the basis of the transfer of the property, then the lot owners Ouanos and Inocians can demand the reconveyance of their old properties after the payment of the condemnation price.” It was also made clear here that “MCIAA v. Lozada, Sr., revisited and abandoned the Fery.” Expounding on the Court’s holding, it stated: “In esse, expropriation is forced private property taking, the landowner being really without a ghost of a chance to defeat the case of the expropriating agency. In other words, in expropriation, the private owner is deprived of property against his will. Withal, the mandatory requirement of due process ought to be strictly followed, such that the state must show, at the minimum, a genuine need, an exacting public purpose to take private property, the purpose to be specifically alleged or least reasonably deducible from the complaint. Public use, as an eminent domain concept, has now acquired an expansive meaning to include any use that is of “usefulness, utility, or advantage, or what is productive of general benefit [of the public].’ If the genuine public necessity – the very reason or condition as it were – allowing, at the first instance, the expropriation of a private land ceases or disappears, then there is no moreCenter cogent point for the government’s retention Recoletos Law of the expropriated land. The same legal situation should hold if the government devotes the property Barfrom Review 2012 to another public use very much different the original or deviates from the declared purpose to benefit another private person. It has been said that the direct use by the state of its power to oblige landowners to renounce their productive possession to another citizen, who will use it predominantly for that citizen’s own private gain, is offensive to our laws. A condemnor should commit to use the property pursuant to the purpose stated in the petition for expropriation, failing which it should file another petition for the new purpose. If not, then it behooves the condemnor to return the said property to its private owner, the latter desires. The government cannot plausibly A if Library OfsoLiberties vis-à-vis An Arsenal Of Armskeep the property it expropriated in any manner it pleases and, in the process, dishonor the judgment of expropriation. This is not in keeping with the idea of fair play. The notion, therefore, that the government, via expropriation

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proceedings, acquires unrestricted ownership over or a fee simple title to the covered land, is no longer tenable.” It also worth highlighting what the Court said about expropriated land compared to purchased realty. “Expropriated lands should be differentiated from a piece of land, ownership of which was absolutely transferred by way of an unconditional purchase and sale contract freely entered by two parties, one without obligation to buy and the other without the duty to sell. In that case, the fee simple concept really comes into play. There is really no occasion to apply the ‘fee simple concept’ if the transfer is conditional. The taking of a private land in expropriation proceedings is always conditioned on its continued devotion to its public purpose. As a necessary corollary, once the purpose is terminated or peremptorily abandoned, then the former owner, if he so desires, may seek its reversion, subject of course to the return, at the very least, of the just compensation received. To be compelled to renounce dominion over a piece of land is, in itself, an already bitter pill to swallow for the owner. But to be asked to sacrifice for the common good and yield ownership to the government which reneges on its assurance that the private property shall be for a public purpose may be too much. But it would be worse if the power of eminent domain were deliberately used as a subterfuge to benefit another with influence and power in the political process, including development firms. The mischief thus depicted is not at all far-fetched with the continued application of Fery. Even as the Court deliberates on these consolidated cases, there is an uncontroverted allegation that the MCIAA is poised to sell, if it has not yet sold, the areas in question to Cebu Property Ventures, Inc. This provides an added dimension to abandon Fery.” 12. National Power Corporation v. Purefoods Corporation, 565 SCRA 17 (2008) The rule that the market value is that sum of money which a person desirous but not compelled to buy, and an owner willing but not compelled to sell, would agree to as a price to be given and received therefor is modified where only a part of a certain property is expropriated – in such a case the owner is not restricted to compensation for the portion actually taken but he is also entitled to recover the consequential damage, if any, to the remaining part of the property while, at the same time, from the total compensation must be deducted the value of the consequential benefits. 13. National Power Corporation v. Tiangco, 514 SCRA 674 (2007) Right-of-way easements, transmission lines, and just compensation. NPC’s charter (Republic Act No. 6395) authorizes the corporation to acquire private property and exercise the right of eminent domain, and §3-A thereof, as inserted by PD 938, limits the easement fee to 10 percent of the market value of the land. If the NPC is interested only in acquiring an easement of right-of-way over a property and that ownership of the area over which the right-of-way will be established shall remain with the owner of the land,Law how much should it pay? NPC claimed that it should Recoletos Center pay only an easement fee in an amount equivalent to ten per cent (10%) of the market value of the 2012 property as declared by the landowner Bar or by Review the Municipal Assessor. “In several cases, the Court struck down NPC’s consistent reliance on Section 3-A of Republic Act No. 6395, as amended by Presidential Decree 938. True, an easement of a right-of-way transmits no rights except the easement itself, and the respondents would retain full ownership of the property taken. Nonetheless, the acquisition of such easement is not gratis. The limitations on the use of the property taken for an indefinite period would deprive its owner of the normal use thereof. For this reason, the Library Liberties vis-à-vis An must Arsenal Of Arms latter is entitled to A payment ofOf a just compensation, which be neither more nor less than the monetary equivalent of the land taken. While the power of eminent domain results in the taking or appropriation of title to, and possession of, the expropriated property, no cogent reason appears why said

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power may not be availed of to impose only a burden upon the owner of the condemned property, without loss of title and possession. However, if the easement is intended to perpetually or indefinitely deprive the owner of his proprietary rights through the imposition of conditions that affect the ordinary use, free enjoyment and disposal of the property or through restrictions and limitations that are inconsistent with the exercise of the attributes of ownership, or when the introduction of structures or objects which, by their nature, create or increase the probability of injury, death upon or destruction of life and property found on the land is necessary, then the owner should be compensated for the monetary equivalent of the land, . . .” The Court likewise noted: “The evidence suggests that NPC’s transmission line project that traverses the respondents’ property is perpetual, or at least indefinite, in nature. Moreover, not to be discounted is the fact that the high-tension current to be conveyed through said transmission lines evidently poses a danger to life and limb; injury, death or destruction to life and property within the vicinity. . . . Finally, if NPC were to have its way, respondents will continue to pay the realty taxes due on the affected portion of their property, an imposition that, among others, merits the rejection of NPC’s thesis of payment of a mere percentage of the property’s actual value.” 14. National Power Corporation v. Ibrahim, 526 SCRA 149 (2007) If one were ever to feel that sinking feeling, that might as well as have been the situation here. From overhead wires, down to underground tunnels – still about NPC’s needs to expropriate pursuant to its mandate. How much to pay for the surface land affected by unseen subterranean tunnels? Underground tunnels – 115 meters below surface – were constructed by NAPOCOR way back in 1978, allegedly through stealth and without the landowners’ knowledge and consent, to be used for NPC’s hydroelectric project in Lanao, siphoning water from Lake Lanao. The clueless owners only discovered them in 1992 when one owner (Maruhom) requested the Marawi City Water District for a permit to construct and/or install a motorized deep well and was turned down because such construction would cause danger to lives and property due to the presence of underground tunnels. When NPC was asked for payment, it claimed that the sub-terrain does not belong to surface land owners but is part of public dominion. Is it right? No. The sub-terrain portion of the property similarly belongs to the surface owner, a conclusion drawn from Article 437 of the Civil Code17 – the ownership of land extends to the surface as well as to the subsoil under it. “Registered landowners may even be ousted of ownership and possession of their properties in the event the latter are reclassified as mineral lands because real properties are characteristically indivisible. For the loss sustained by such owners, they are entitled to just compensation under the Mining Laws or in appropriate expropriation proceedings.” How far up or down then do the rights extend? The landowner’s right extends to such height or depth where it is possible for them to obtain some benefit or enjoyment, and it is extinguished beyond such limit as there would be no more interest protected by law.

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To NPC’s contention that the underground tunnels in this case constitute an easement upon the Bar Review property of the landowners which did not involve any loss2012 of title or possession, the Court ruled: “The manner in which the easement was created by petitioner, however, violates the due process rights of respondents as it was without notice and indemnity to them and did not go through proper expropriation proceedings. Petitioner could have, at any time, validly exercised the power of eminent domain to acquire the easement over respondents’ property as this power encompasses not only the taking or appropriation of title to and possession of the expropriated property but likewise covers even the imposition of a mere burden Of upon the owner of the condemned property. Significantly, though, A Library Liberties vis-à-vis An Arsenal Of Arms

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landowners cannot be deprived of their right over their land until expropriation proceedings are instituted in court.” Further, the Court also observed that the last element of taking mentioned, i.e., that the entry into the property is under warrant or color of legal authority, was patently lacking, all because of the mistaken belief that the property formed part of the public dominion. 15. National Power Corporation v. Heirs of Macabangkit Sangkay, 656 SCRA 60 (2011) And what is inverse condemnation? How does it differ from a claim for damages? The Court had occasion to discuss the same in another case involving the National Power Corporation and its tunnels bored deep under the lands of unsuspecting owners. The Court explained that an “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. . . . On the other hand, the latter action seeks to vindicate a legal wrong through damages, which may be actual, moral, nominal, temperate, liquidated, or exemplary. When a right is exercised in a manner not conformable with the norms enshrined in Article 19 and like provisions on human relations in the Civil Code, and the exercise results to the damage of another, a legal wrong is committed and the wrongdoer is held responsible. The two actions are radically different in nature and purpose. The action to recover just compensation is based on the Constitution while the action for damages is predicated on statutory enactments. Indeed, the former arises from the exercise by the State of its power of eminent domain against private property for public use, but the latter emanates from the transgression of a right. The fact that the owner rather than the expropriator brings the former does not change the essential nature of the suit as an inverse condemnation, for the suit is not based on tort, but on the constitutional prohibition against the taking of property without just compensation. It would very well be contrary to the clear language of the Constitution to bar the recovery of just compensation for private property taken for a public use solely on the basis of statutory prescription.” For Legal Research purposes, the Court referenced Corpus Juris Secundum (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.” Recoletos Law Center

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CONTRACT CLAUSE

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The weakest guarantee in the Bill of Rights, it is almost seen as a relic from days past where it must have had its grandeur. The Clause easily yields to the demands of police power such that the occasions in which it may prevail could more be the exception than the rule. “The impairment clause is no longer inviolate; in fact, there are many who now believe that is an anachronism in the present-day society.”18 A Library Of Liberties vis-à-vis An Arsenal Of Armsclause, the principle Nevertheless, “[w]hile it is true that the police power is superior to the impairment will apply only where the contract is so related to the public welfare that it will be considered 18

Juarez v. Court of Appeals, 214 SCRA 475 (1992)

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congenitally susceptible to change by the legislature in the interest of the greater number. Most presentday contracts are of that nature.”19 Insofar as the taxing power is concerned, it has also been observed that: “In truth, the Contract Clause has never been thought as a limitation on the exercise of the State’s power of taxation save only where a tax exemption has been granted for a valid consideration.”20 And, that the contractual tax exemptions, in the real sense of the term and where the non-impairment clause of the Constitution can rightly be invoked, are those agreed to by the taxing authority in contracts, such as those contained in government bonds or debentures, lawfully entered into by them under enabling laws in which the government, acting in its private capacity, sheds its cloak of authority and waives its governmental immunity. Tax exemptions of this kind may not be revoked without impairing the obligations of contracts. These contractual tax exemptions, however, are not to be confused with tax exemptions granted under franchises. A franchise partakes the nature of a grant which is beyond the purview of the non-impairment clause of the Constitution.21 In Lepanto Consolidated Mining Co. v. WMC Resources Int’l. Pty. Ltd., 507 SCRA 315 (2006), the Court had occasion to apply the Contract Clause. It held that Section 40 of the Philippine Mining Act of 1995 requiring the approval of the President with respect to assignment or transfer of FTAAs, if made applicable retroactively to the Columbio FTAA, would be tantamount to an impairment of the obligations under said contract as it would effectively restrict the right of the parties thereto to assign or transfer their interests in the said FTAA.

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The Constitution guarantees free access to the courts and quasi-judicial bodies, and likewise mandates that adequate legal assistance shall not be denied to any person by reason of poverty. This may mean that those who cannot afford filing fees may get some form of accommodation, such as being allowed to litigate as paupers, thereby being exempted from the payment of filing fees. Can this be availed of a juridical person? In Re: Query of Mr. Roger C. Prioreschi re Exemption from Legal and Filing Fees of the Good Shepherd Foundation, Inc., 596 SCRA 401 (2009), the Court held that only individuals may be granted exemption from filing fees as indigents – foundations, even if serving indigents, are not entitled. “The clear intent and precise language of the aforequoted provisions of the Rules of Court indicate that only a natural party litigant may be regarded as an indigent litigant.” Accordingly, that “the Good Shepherd Foundation, Inc. is working for indigent and underprivileged people is of no moment. Clearly, the Constitution has explicitly premised the free access clause on a person’s poverty, a condition that Recoletos only a natural person suffer. ” Lawcan Center

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National Development Company v. Philippine Veterans Bank, 192 SCRA 257 (1990)

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Tolentino v. Secretary of Finance, 235 SCRA 630 (1994)

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Manila Electric Company v. Province of Laguna, 306 SCRA 750 (1999)

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Supreme Court in the not-too-distant past refused to apply the Miranda doctrine22 in People v. Jose, 37 SCRA 450 (1971), and likewise did not recognize any retroactive application of the 1973 Constitution version of the Miranda warnings,23 the same is now part of the easily-forgotten past. The doctrine has become firmly entrenched in law and jurisprudence, even constitutionalized at that.24 In regard to expanding the rights of suspects, take note of the newly minted “Anti-Torture Act of 2009” (R.A. No. 9745 [2009]). It is meant to implement the guarantees in Section 12 of the Bill of Rights against torture and other related acts. It adds the right, among others, to be informed of one’s right to demand physical examination by an independent and competent doctor of his/her own choice, which may be waived, provided it is in writing and in the presence of counsel.25 The rights given to persons somehow thought of having committed a crime or those under custodial investigation – a.k.a., suspects – are meant to ensure that they are afforded the chance to exercise whatever protection is due them in any criminal prosecution. Thus, they are given the opportunity to exercise their privilege not to incriminate themselves, otherwise there would be no point keeping one’s silence at trial if the damning statements had already been secured during the investigation. Then, to make sure that the person under investigation knows what that privilege of silence is all about, he is also given a chance to have the assistance of a lawyer. He may waive his rights, including the assistance of counsel, provided the same is done in the presence of a lawyer. In the language of the Fundamental Law, the lawyer must be competent and independent. He must be present from beginning to end, and his loyalty to the cause of his client must be beyond reproach.26 Then, also, the lawyer should not simply be a lawyer in form. He must also be so in substance, a real lawyer and not one who took up Law but never made it beyond the bar examinations.27 Moreover, nobody could take the place of a lawyer. In People v. Ordoño, 334 SCRA 673 (2000), since the place had no lawyers, the statement of the accused was taken in the presence of Parish Priest, Municipal Mayor, Chief of Police, other police officers, plus the wife and mother of the accused. The Court held the confession inadmissible. Even as it commended the police, it held that there is no substitute for lawyers. “To the credit of the police, they requested the presence of the Parish Priest and the Municipal 22

Miranda v. Arizona, 384 U.S. 436 (1966)

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Magtoto v. Manguera, 63 SCRA 4 (1975)

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In 2000, the U.S. Supreme Court revisited Miranda and came up with a declaration that Miranda is of constitutional moorings, a “constitutional decision,” which could not therefore be overturned by Congress as it represents the Court’s reading of what the Constitution requires, at minimum. (Dickerson v. United States, 530 U.S. 428 [2000]) 25

SEC. 12. Right to Physical, Medical and Psychological Examination. – Before and after interrogation, every person arrested, detained or under custodial investigation shall have the right to be informed of his/her right to demand physical examination by an independent and competent doctor of his/her own choice. If such person cannot afford the services of his/her own doctor, he/she shall be provided by the State with a competent and independent doctor to conduct physical examination. The State shall endeavor to provide the victim with psychological evaluation if available under the circumstances. If the person arrested is a female, she shall be attended to preferably by a female doctor. Furthermore, any person arrested, detained or under custodial investigation, including his/her immediate family, shall have the right to immediate access to proper and adequate medical treatment.

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Any person who does not wish to avail of the rights under this provision may knowingly and voluntarily waive such rights in writing, executed in the presence and assistance of his/her counsel. 26

A awyer who notarizes the sworn statement of a suspect whom he assists seriously compromises his independence, because by so doing, he vouches for the regularity of the circumstances surrounding the taking of the sworn statement by the police. (People v. Labtan, 320 SCRA 140 [1999]) A Library Of Liberties vis-à-vis An Arsenal Of Arms Also, lawyers engaged by the police are generally suspect, as in many areas, the relationship between lawyers, and law enforcement authorities can be symbiotic. (People v. Deniega, 251 SCRA 626 [1995]) 27

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Mayor of Santol as well as the relatives of the accused to obviate the possibility of coercion, and to witness the voluntary execution by the accused of their statements before the police. Nonetheless, this did not cure in any way the absence of a lawyer during the investigation.” R.A. 7438 does not propose that they appear in the alternative or as a substitute for counsel. How about media interviews? In People v. Endino, 352 SCRA 307 (2001), the Court advised trial courts not to simplistically admit such confessions. “[B]ecause of the inherent danger in the use of television as a medium for admitting one’s guilt, and the recurrence of this phenomenon in several cases, it is prudent that trial courts are reminded that extreme caution must be taken in further admitting similar confessions. For in all probability, the police, with the connivance of unscrupulous media practitioners, may attempt to legitimize coerced extrajudicial confessions and place them beyond the exclusionary rule by having an accused admit an offense on television. Such a situation would be detrimental to the guaranteed rights of the accused and thus imperil our criminal justice system.”28 With the foregoing pronouncements of the Court relative to admissions or confessions made to media men, should it not also consider having the right to be advised of one’s Miranda rights – including the right to counsel – to be done prior to any interviews made by the media? The right to counsel and the right not to incriminate oneself might become useless if the print and broadcast reporters are allowed to make the interviews even before the suspect had the opportunity to think for himself in a voluntary and an informed manner whether to speak or not. This element of knowing and voluntary waiver may only be safeguarded – in the spirit of the Miranda doctrine – through the assistance of counsel timely made.29 1. People v. Reyes, 581 SCRA 691 (2009) When really do the Miranda Rights kick in? In People v. Marra,30 and People v. Ting Lan Uy, Jr.,31 the Court held, in effect, that the rights would only be available if a person has already been arrested and in custody. However, in this case of Reyes,, we find this line: “The mantle of protection afforded by the above-quoted constitutional provision [Art. III, §12] covers the period from the time a person is taken into custody for the investigation of his possible participation in the commission of a crime or from the time he is singled out as a suspect in the commission of the offense although not yet in custody.” 2. People v. Rapeza, 520 SCRA 596 (2007) Where the participation of a lawyer in the proceedings was confined to the notarization of the suspect’s confession, the same is not the kind of legal assistance that the suspect is accorded under the Constitution. The suspect must also be advised that he has the option to reject the counsel provided him by the police authorities, which must also appear in the written confession.32 (This latter statement, is it the beginning of a new right in the mold of the seventh paragraph of Morales, Jr. v. Enrile, 121 SCRA Recoletos Law Center 538 [1983] – that the right to counsel may be waived provided it is done with the assistance of counsel?)

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236 SCRA 565 (1994)

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475 SCRA 248 (2005) A Library

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The pronouncement in Rapesz may also be related to what the Court said in People v. Casimiro, 383 SCRA 390 (2002), on incomplete Miranda Warning: “The warning was incomplete. It did not include a statement that, if accused-appellant could not afford a counsel, one would be assigned to him. The warning was perfunctory, made without any effort to find out if he understood it. It was merely ceremonial and inadequate in transmitting meaningful information to the suspect.”

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3. People v. Lauga, 615 SCRA 548 (2010) In People v. Malngan, 503 SCRA 294 (2006), the Court considered the confessions made to a barangay chairman inadmissible since there was no Miranda Warning given prior to questioning. The Court observed: “Arguably, the barangay tanods, including the Barangay Chairman, in this particular instance, may be deemed as law enforcement officer for purposes of applying Article III, Section 12(1) and (3), of the Constitution. When accused-appellant was brought to the barangay hall in the morning of 2 January 2001, she was already a suspect, actually the only one, in the fire that destroyed several houses as well as killed the whole family of Roberto Separa, Sr. She was, therefore, already under custodial investigation and the rights guaranteed by Article III, Section 12 (1), of the Constitution should have already been observed or applied to her.”33 Taking the teachings and spirit of Malngan further, the Court held in Lauga that Bantay Bayan members or voluntary barangay-based anti-crime or neighborhood watch groups should similarly be covered by the Miranda Doctrine. The Court observed that they are recognized by the local government units to perform functions relating to the preservation of peace and order at the barangay level. Thus, on the authority to conduct a custodial investigation, any inquiry they make has the color of a state-related function and objective insofar as the entitlement of a suspect to his constitutional rights provided for under Article III, Section 12 of the Constitution. Accordingly, any extrajudicial confession taken without a counsel is inadmissible in evidence. 4. People v. Ganih, 621 SCRA 159 (2010) Line-ups do not generally require that the suspect be informed of his Miranda Rights. However, some line-ups – or show-ups (only one person is presented to the witness) – may be highly suggestive, thus requiring some procedural safeguards. In this case, there was a line-up of sorts whereby the witness stayed in her vehicle with tinted glass and took a look at the suspect and three other men. Was this proper? The Court said yes. “[T[he manner in which Mrs. Lee identified Ganih was substantially the same as in any proper police line-up except that this one took place outside the police station on account of Mrs. Lee’s desire not to be seen while making the identification. The police did not show Ganih alone to Mrs. Lee, which would suggest that he was their suspect. They made three other men stand with Ganih in front of the police station while Mrs. Lee gazed on them behind the tinted windows of her vehicle. What the Court condemns are prior or contemporaneous improper suggestions that point out the suspect to the witness as the perpetrator to be identified.”

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In People v. Ulit, 423 SCRA 374 (2004), the Barangay chairman ordered the barangay tanods to “invite and bring” the accused to the barangay hall, and thereafter asked the accused if he raped the complainant. The suspect admitted and executed a sworn statement to that effect. The Court said that the uncounselled sworn statement of the accused was considered admissible because he was not then under arrest nor under custodial investigation. “The exclusionary rule is premised on the presumption that the defendant is thrust into an unfamiliar atmosphere and runs through menacing police interrogation procedures where the potentiality for compulsion, physical and psychological, is forcefully apparent. As intended by the 1971 Constitutional Convention, this covers ‘investigation conducted by police authorities which will include investigations conducted by the municipal police, the PC and the NBI and such other police agencies in our government.’ The barangay chairman is not deemed a law enforcement officer for purposes of applying Section 12(1) and (3) of Article III of the Constitution. Under these circumstances, it cannot bevis-à-vis successfully An claimed that the appellant’s statement before the barangay A Library Of Liberties Arsenal Of Arms chairman is inadmissible.” (Both Ulit and Samus were en banc decisions.)

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P. RIGHTS OF THE ACCUSED Once a person under investigation is found to be probably guilty of the commission of a crime, he is charged in court thereby becoming an accused, entitled to another set of rights, from the presumption of innocence to an opportunity to avail of momentary liberty through bail, to being informed of the charges, to setting out his defense by himself or counsel, facing his accusers and testing their credibility, speedy, impartial and public trial, and compulsory process for the production of witnesses and evidence in his behalf. Through all of these, he is assured of the guarantee of being heard before judgment is rendered.34 1. Lejano v. People, 638 SCRA 104 (2010) The Court held here that an accused is not entitled to acquittal for the failure of the State to produce the semen specimen at a late stage, when his case is already on appeal. The ruling in Brady v. Maryland, 373 U.S. 83 (1963), has long be overtaken by the decision in Arizona v. Youngblood, 488 U.S. 41 (1988), where the U.S. Supreme Court held that due process does not require the State to preserve the semen specimen although it might be useful to the accused unless the latter is able to show bad faith on the part of the prosecution or the police. On the need for impartiality amidst tendency of some judges to take the easy way out, what the Court said about downplaying at once the defense of alibi is also instructive. The Court admonished that not all denials and alibis should be regarded as fabricated – indeed, if the accused is truly innocent, he can have no other defense but denial and alibi. A judge must keep an open mind, guarding against slipping into hasty conclusion, often arising from a desire to quickly finish the job of deciding a case – a positive declaration from a witness that he saw the accused commit the crime should not automatically cancel out the accused’s claim that he did not do it. A lying witness can make as positive an identification as a truthful witness can. 2. Government of Hong Kong Special Administrative Region v. Olalia, Jr., 521 SCRA 470 (2007) “Bail acts as a reconciling mechanism to accommodate both the accused’s interest in pretrial liberty and society’s interest in assuring the accused’s presence at trial,” so said the Court in Leviste v. Court of Appeals, 615 SCRA 619 (2010). “An erroneously convicted accused who is denied bail loses his liberty to pay a debt to society he has never owed.” Is it also available for someone who is being sought to be extradited? In Government of the United States of America v. Purganan, 389 SCRA 623 (2002), the majority Recoletos Law Center ruled that a potential extraditee is not entitled to notice and hearing before the issuance of a warrant of arrest. Confronted anew with the question as to whether a potential extraditee is entitled to bail, the Bar Review 2012 Court in Government of Hongkong found occasion to revisit what it had earlier decreed in Purganan. It noted that the modern trend in public international law is the primacy placed on the worth of the individual person and the sanctity of human rights, citing the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. Fundamental among the rights enshrined in the International Covenant on Civil and Political Rights are the rights of every person to life, liberty, and due process. While the Court in Purganan limited the exercise of the right to bail to criminal A of Library Of Liberties vis-à-vis Arsenal Of Arms proceedings, in light the various international treaties An giving recognition and protection to human

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rights, particularly the right to life and liberty, a reexamination of the Court’s ruling in Purganan was accordingly in order. The Court reasoned out that if bail can be granted in deportation cases, it saw no justification why it should not also be allowed in extradition cases – clearly, the right of a prospective extraditee to apply for bail must be viewed in the light of the various treaty obligations of the Philippines concerning respect for the promotion and protection of human rights. While extradition is not a criminal proceeding, it is characterized by the following: (a) it entails a deprivation of liberty on the part of the potential extraditee and (b) the means employed to attain the purpose of extradition is also “the machinery of criminal law” – obviously, an extradition proceeding, while ostensibly administrative, bears all earmarks of a criminal process . By any standard, detention for an extended period of more than two (2) years is a serious deprivation of a potential extraditee’s fundamental right to liberty. While the Philippines’ extradition law does not provide for the grant of bail to an extraditee, however, there is no provision prohibiting him or her from filing a motion for bail, a right to due process under the Constitution. Nevertheless, the applicable standard of due process should not be the same as that in criminal proceedings – in the latter, the standard of due process is premised on the presumption of innocence of the accused, in the former, the assumption is that such extraditee is a fugitive from justice. Thus, the prospective extraditee bears the onus probandi of showing that he or she is not a flight risk and should be granted bail. An extradition proceeding being sui generis, the standard of proof required in granting or denying bail can neither be the proof beyond reasonable doubt in criminal cases nor the standard of proof of preponderance of evidence in civil cases. The potential extraditee must prove by “clear and convincing proof” that he is not a flight risk and will abide with all orders and processes of the extradition court. 3. Trillanes IV v. Pimentel, Sr., 356 SCRA 471 (2008) What does the presumption of innocence entail? The Court said that “the presumption of innocence does not carry with it the full enjoyment of civil and political rights.” Accordingly, in this case even as someone charged with coup d’etat – a non-bailable offense – was elected to Congress, he was not allowed to leave his prison cell in order to join his colleagues in the legislative branch. The Court further held that “[t]he rule stands that until a promulgation of final conviction is made, the constitutional mandate of presumption of innocence prevails.” 4. Re: Conviction of Judge Adoracion G. Angeles, RTC, Br. 121, Caloocan City in Criminal Cases Nos. Q-97-69655 to 56 for Child Abuse, 543 SCRA 196 (2008) Does the presumption of innocence come to an end when there is conviction by the trial court, even Recoletos Law Center if there is an appeal taken? In this case, the Court echoed what was said Trillanes – the presumption is lost only when there is a final judgment. Accordingly,“the fact of [the judge’s] conviction by the RTC Bar Review 2012 does not necessarily warrant her suspension. We agree with [her] argument that since her conviction of the crime of child abuse is currently on appeal before the CA, the same has not yet attained finality. As such, she still enjoys the constitutional presumption of innocence. It must be remembered that the existence of a presumption indicating the guilt of the accused does not in itself destroy the constitutional presumption of innocence unless the inculpating presumption, together with all the evidence, or the lack of any evidence or explanation, proves the accused’s guilt beyond a reasonable doubt.” A Library Of Liberties vis-à-vis An Arsenal Of Arms 5. People v. Abulon, 530 SCRA 675 (2007)

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Rape through Sexual Intercourse v. Rape by Sexual Assault. “In view of the material differences

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between the two modes of rape,35 the first mode is not necessarily included in the second, and vice-versa. Thus, where the charge in the Information is rape through carnal knowledge, the accused cannot be found guilty of rape by sexual assault even if proven, for this would violate his constitutional right to be informed of the nature and cause of the accusation against him. However, following the variance doctrine he can be found guilty of the lesser crime of acts of lasciviousness. In contrast, we have Andaya v. People, 493 SCRA 539 (2006). Here, the charge was Falsification of Private Documents but no damage to offended party was proved. The accused was still convicted by the trial court, nevertheless, for intent to cause damage to the government through evasion of tax. Despite the trial court’s concession that the allegedly offended party (a savings and loan association) suffered no damage, it still convicted the accused, reasoning out that the third essential element of falsification of private document was present because the falsification of the voucher was done with criminal intent to cause damage to the government considering that its purpose was to lower the tax base of the recipient of the money, allowing him to evade payment of taxes. The Supreme Court disagreed, however. The Court pointed out that “[n]o matter how conclusive and convincing the evidence of guilt may be, an accused cannot be convicted of any offense unless it is charged in the information on which he is tried or is necessarily included therein. To convict him of a ground not alleged while he is concentrating his defense against the ground alleged would plainly be unfair and underhanded. The rule is that a variance between the allegation in the information and proof adduced during trial shall be fatal to the criminal case if it is material and prejudicial to the accused so much so that it affects his substantial rights.” 6. Re: Petition for Radio and Television Coverage of the Multiple Murder Cases Against Maguindanao Governor Zaldy Ampatuan, 652 SCRA 1 (2011) In Re: Live TV and Radio Coverage of the Hearing of President Corazon C. Aquino’s Libel Case36 and Re: Request Radio-TV Coverage of the Trial in the Sandiganbayan of the Plunder Cases Against the Former President Joseph E. Estrada, 360 SCRA 248 (2001), the Supreme Court did not allow for live radio-TV coverage of the trials involved therein. Now, in regard to the so-called Maguindanao Massacre where there were 57 victims and 197 accused, the Court is being asked once more to allow for such live broadcast of the proceedings. Would the request fare any better. Yes, the Court said. Pro hac vice. Here, the Court highlighted the delicate balance between seemingly competing yet certainly complementary rights – the right of the accused to a fair trial free from prejudice caused by undue publicity, and the right of the people to know what is happening inside the courthouse. The Court explained: “The rationale for an outright total prohibition was shrouded, as it is now, inside the LawnoCenter comfortable cocoon of a feared Recoletos speculation which scientific study in the Philippine setting confirms, and which fear, if any, may be dealt with by safeguards and safety nets under existing Bar rules and exacting regulations. In this day Review and age, it is2012 about time to craft a win-win situation that shall not compromise rights in the criminal administration of justice, sacrifice press freedom and allied rights, and interfere with the integrity, dignity and solemnity of judicial proceedings. Compliance with regulations, not curtailment of a right, provides a workable solution to the concerns raised in these administrative matters, while, at the same time, maintaining the same underlying principles upheld in the two previous cases.” The Court further stated that “the right of an accused to a fair trial is not incompatible to a free press, thatOf pervasive publicity is notAn perArsenal se prejudicial to the right of an accused A Library Liberties vis-à-vis Of Arms

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“Rape through sexual intercourse is also denominated as ‘organ rape’ or ‘penile rape.’ On the other hand, rape by sexual assault is otherwise called ‘instrument or object rape,’ also ‘gender-free rape,’ or the narrower ‘homosexual rape.’” 36

En Banc Resolution of October 22, 1991.

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to a fair trial, and that there must be allegation and proof of the impaired capacity of a judge to render a bias-free decision. Mere fear of possible undue influence is not tantamount to actual prejudice resulting in the deprivation of the right to a fair trial.” Making use of the totality of circumstances test, the Court paved the way, pro hac vice, for the live broadcast of the proceedings subject of the case. “One apparent circumstance that sets the Maguindanao Massacre cases apart from the earlier cases is the impossibility of accommodating even the parties to the cases – the private complainants/families of the victims and other witnesses – inside the courtroom.” The Court explained that “[e]ven before considering what is a ‘reasonable number of the public’ who may observe the proceedings, the peculiarity of the subject criminal cases is that the proceedings already necessarily entail the presence of hundreds of families. It cannot be gainsaid that the families of the 57 victims and of the 197 accused have as much interest, beyond mere curiosity, to attend or monitor the proceedings as those of the impleaded parties or trial participants. It bears noting at this juncture that the prosecution and the defense have listed more than 200 witnesses each. The impossibility of holding such judicial proceedings in a courtroom that will accommodate all the interested parties, whether private complainants or accused, is unfortunate enough. What more if the right itself commands that a reasonable number of the general public be allowed to witness the proceeding as it takes place inside the courtroom. Technology tends to provide the only solution to break the inherent limitations of the courtroom, to satisfy the imperative of a transparent, open and public trial. In so allowing pro hac vice the live broadcasting by radio and television of the Maguindanao Massacre cases, the Court lays down the following guidelines toward addressing the concerns mentioned in Aquino and Estrada.” So, what are the guidelines? (a) An audio-visual recording of the Maguindanao massacre cases may be made both for documentary purposes and for transmittal to live radio and television broadcasting. (b) Media entities must file with the trial court a letter of application, manifesting that they intend to broadcast the audio-visual recording of the proceedings and that they have the necessary technological equipment and technical plan to carry out the same, with an undertaking that they will faithfully comply with the guidelines and regulations and cover the entire remaining proceedings until promulgation of judgment. No selective or partial coverage shall be allowed. No media entity shall be allowed to broadcast the proceedings without an application duly approved by the trial court. (c) A single fixed compact camera shall be installed inconspicuously inside the courtroom to provide a single wide-angle full-view of the sala of the trial court. No panning and zooming shall be allowed to avoid unduly highlighting or downplaying incidents in the proceedings. The camera and the necessary equipment shall be operated and controlled only by a duly designated official or employee of the Supreme Court. The camera equipment should not produce or beam any distracting sound or light rays. Signal lights or signs showing the equipment is operating should not be visible. A limited number of microphones and the least installation of wiring, if not wireless Recoletos LawbyCenter technology, must be unobtrusively located in places indicated the trial court. The Public Information Office and the Office of the Court Administrator shall coordinate and assist the trial Review 2012 court on the physical set-up of the cameraBar and equipment. (d) The transmittal of the audio-visual recording from inside the courtroom to the media entities shall be conducted in such a way that the least physical disturbance shall be ensured in keeping with the dignity and solemnity of the proceedings and the exclusivity of the access to the media entities.

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The hardware for establishing an interconnection or link with the camera equipment monitoring the proceedings shall be for the account of the media entities, which should employ technology that can (i) avoid the cumbersome snaking cables inside courtroom, minimize thevis-à-vis unnecessaryAn ingress or egress of technicians, A the Library Of(ii)Liberties Arsenal Of Arms and (iii) preclude undue commotion in case of technical glitches. If the premises outside the courtroom lack space for the set-up of the media entities’ facilities, the media entities shall access the audio-visual recording either via wireless technology accessible even from outside the court

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premises or from one common web broadcasting platform from which streaming can be accessed or derived to feed the images and sounds. At all times, exclusive access by the media entities to the real-time audio-visual recording should be protected or encrypted. (e) The broadcasting of the proceedings for a particular day must be continuous and in its entirety, excepting such portions thereof where Sec. 21 of Rule 119 of the Rules of Court37 applies, and where the trial court excludes, upon motion, prospective witnesses from the courtroom, in instances where, inter alia, there are unresolved identification issues or there are issues which involve the security of the witnesses and the integrity of their testimony (e.g., the dovetailing of corroborative testimonies is material, minority of the witness). The trial court may, with the consent of the parties, order only the pixelization of the image of the witness or mute the audio output, or both. (f) To provide a faithful and complete broadcast of the proceedings, no commercial break or any other gap shall be allowed until the day’s proceedings are adjourned, except during the period of recess called by the trial court and during portions of the proceedings wherein the public is ordered excluded. (g) To avoid overriding or superimposing the audio output from the on-going proceedings, the proceedings shall be broadcast without any voice-overs, except brief annotations of scenes depicted therein as may be necessary to explain them at the start or at the end of the scene. Any commentary shall observe the sub judice rule and be subject to the contempt power of the court; (h) No repeat airing of the audio-visual recording shall be allowed until after the finality of judgment, except brief footages and still images derived from or cartographic sketches of scenes based on the recording, only for news purposes, which shall likewise observe the sub judice rule and be subject to the contempt power of the court; (i) The original audio-recording shall be deposited in the National Museum and the Records Management and Archives Office for preservation and exhibition in accordance with law. (j)The audio-visual recording of the proceedings shall be made under the supervision and control of the trial court which may issue supplementary directives, as the exigency requires, including the suspension or revocation of the grant of application by the media entities. (k) The Court shall create a special committee which shall forthwith study, design and recommend appropriate arrangements, implementing regulations, and administrative matters referred to it by the Court concerning the live broadcast of the proceedings pro hac vice, in accordance with the above-outlined guidelines. The Special Committee shall also report and recommend on the feasibility, availability and affordability of the latest technology that would meet the herein requirements. It may conduct consultations with resource persons and experts in the field of information and communication technology. (l) All other present directives in the conduct of the proceedings of the trial court (i.e., prohibition on recording devices such as still cameras, tape recorders; and allowable number of media practitioners inside the courtroom) shall be observed in addition to these guidelines.

And, talking of new and constantly developing technology seen alongside the slower and phlegmatic 38 movement of law, the Court observed: “Putt’s LawLaw states that ‘technology is dominated by two types Recoletos Center of people: those who understand what they do not manage, and those who manage what they do not understand.’ Indeed, members of this Court strip their judicial robe and don the experts’ gown, Bar cannot Review 2012 so to speak, in a pretense to foresee and fathom all serious prejudices or risks from the use of technology inside the courtroom. ” And, towards the end the Court concluded: “Indeed, the Court cannot gloss over what advances technology has to offer in distilling the abstract discussion of key constitutional precepts into the workable context. Technology per se has always been neutral. It is the use and regulation thereof that need fine-tuning. Law and technology can work to the advantage and furtherance of the various

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Exclusion of the public. – The judge may, motu proprio, exclude the public from the courtroom if the evidence to be produced during the trial is offensive to decency or public morals.He may also, on motion of the accused, exclude the public from the trial except court personnel and the counsel of the parties. 38

Based on the 1981 book entitled “Putt’s Law and the Successful Technocrat” which is attributed to the pseudonym Archibald Putt.

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rights herein involved, within the contours of defined guidelines.”39 As for taking the bar exams is concerned, the hardship and torture that go with it nee not necessarily be in conflict with the quest for happiness. There is joy and thrill in the eventually prevailing after a hard day’s work.

Q.

WRITS OF HABEAS CORPUS AND AMPARO

The privilege of the writ of habeas corpus affords one who may be unlawfully detained an opportunity to have an expeditious inquiry into the nature of the deprivation of liberty such that if there is no legal basis for the same then he should be set free. It also affords a remedy in custody fights in the domestic battle grounds to determine who may have better right over a person who could not take care of his own affairs. However, “[t]he mere loss or destruction of the records of a criminal case subsequent to conviction of the accused will not render the judgment of conviction void, nor will it warrant the release of the convict by virtue of a writ of habeas corpus. The proper remedy is the reconstitution of judicial records which is as much a duty of the prosecution as of the defense.”40 In Martinez v. Mendoza, 499 SCRA 234 (2006), the Court held that the grant of relief in a habeas corpus proceeding is not predicated on the disappearance of a person, but on his illegal detention. It may not be used as a means of obtaining evidence on the whereabouts of a person, or as a means of finding out who has specifically abducted or caused the disappearance of a certain person. When forcible taking and disappearance – not arrest and detention – have been alleged, the proper remedy is not habeas corpus proceedings, but criminal investigation and proceedings, or lately, the writ of amparo. Years before the writ of amparo, the Supreme Court said in Subayno v. Enrile, 145 SCRA 282 (1986), that the writ of habeas corpus may not be used as a means of obtaining evidence on the whereabouts of a person. Then, in Martinez v. Mendoza, 499 SCRA 234 (2006), the Court held that the grant of relief in a habeas corpus proceeding is not predicated on the disappearance of a person, but on his illegal detention. It may not be used as a means of obtaining evidence on the whereabouts of a person, or as a means of finding out who has specifically abducted or caused the disappearance of a certain person. When forcible taking and disappearance – not arrest and detention – have been alleged, the proper remedy is not habeas corpus proceedings, but criminal investigation and proceedings. That was then. Now, we have also the writ of amparo. 1. Aquino v. Esperon, 531 SCRA 788 (2007) As a general rule, the writ of habeas corpus will not issue where the person alleged to be restrained Recoletos Law Center of his liberty is in the custody of an officer under a process issued by the court which has jurisdiction to do so – it is unavailing where the legality a military officer’s BarofReview 2012 restraint has been settled, namely, that he stands charged in court martial proceedings for alleged violations of Article 67 (Attempting to Begin or Create Mutiny) and Article 96 (Conduct Unbecoming an Officer and Gentleman) of the Articles of War. Habeas corpus is not the proper mode to question conditions of confinement. As a rule, the writ of habeas corpus does not extend into questions of conditions of confinement but only to the fact and duration of confinement – not a means for redress of grievances or to seek injunctive relief or damages.

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Have you noticed how you have made use of modern means of communications and entertainment as tools in your study of law, such as in internet research not only for cases but also for digests, reliable or otherwise? 40

Feria v. Court of Appeals, 325 SCRA 525 (2000)

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Further, under the “hands-off doctrine,” the courts give deference to military custodians over prison matters, especially on blanket restrictions on contact visit – it is a form of judicial self-restraint, that courts should decline jurisdiction over prison matters in deference to administrative expertise. 2. Manalo v. Calderon, 536 SCRA 290 (2007) When policemen are subject to certain investigations, they may be placed on restrictive custody or subjected to monitored movements. Are these subject to habeas corpus proceedings? 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 which merits the grant of a petition for habeas corpus. The prime specification of an application for a writ of habeas corpus is an actual and effective, and not merely nominal or moral, illegal restraint of liberty: “[D]ecreeing the monitoring of their movements cannot, by any stretch of the imagination, be considered as a form of curtailment of their freedom guaranteed under our Constitution.” Moreover, “the ‘restrictive custody’ complained of by petitioners is, at best, nominal restraint which is beyond the ambit of habeas corpus. It is neither actual nor effective restraint that would call for the grant of the remedy prayed for. It is a permissible precautionary measure to assure the PNP authorities that the police officers concerned are always accounted for.” Placing police officers facing a grave administrative case under restrictive custody is a disciplinary measure authorized under the PNP law. Does not the fact that the police force is actually civilian in nature rather than military in character make a difference? “[A]lthough the PNP is civilian in character, its members are subject to the disciplinary authority of the Chief, Philippine National Police, under the National Police Commission. Courts cannot, by injunction, review, overrule or otherwise interfere with valid acts of police officials. The police organization must observe self-discipline and obey a chain of command under civilian officials. Elsewise stated, police officers are not similarly situated with ordinary civil service employees. The PNP has its own administrative disciplinary mechanism different from those of other government employees.” 3. WRIT OF AMPARO Since the privilege of the writ of habeas corpus does not reach out to cases where the fact of detention is denied, or the identity of those keeping a person, or his whereabouts are uncertain, the Supreme Court came up with the Writ of Amparo.41 This 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. It covers extralegal killings and enforced disappearances or threats thereof.Recoletos In contrast to the writ Center of habeas corpus, under the Writ of Amparo Law it is not enough for the respondent to simply disclaim any knowledge of the aggrieved person subject of the writ, or the surrounding circumstances about the latter. He is also duty bound to state the steps or Bar Review 2012 actions taken to determine the fate or whereabouts of said person and the person or persons responsible for the threat, act or omission. He is also bound to disclose all relevant information in his possession pertaining to the threat, act or omission against the aggrieved person, as well as to state other matters relevant to the investigation, its resolution and the prosecution of the case.42 The writ of amparo is an extraordinary and independent remedy that provides rapid judicial relief, as it partakes of a summary proceeding that requires only substantial evidence to make the appropriate interim and permanent reliefs A Library Of Liberties vis-à-vis An Arsenal Of Arms available to the petitioner. It is not an action to determine criminal guilt requiring proof beyond

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Effective 24 October 2007, pursuant to A.M. No. 07-0-12-SC (25 September 2007).

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reasonable doubt, or liability for damages requiring preponderance of evidence, or administrative responsibility requiring substantial evidence that will require full and exhaustive proceedings. Rather, it serves both preventive and curative roles in addressing the problem of extrajudicial killings and enforced disappearances. It is preventive in that it breaks the expectation of impunity in the commission of these offenses, and it is curative in that it facilitates the subsequent punishment of perpetrators by inevitably leading to subsequent investigation and action.43 Among the significant characteristics and features of the remedy of writ of amparo are the following: (a) it does not determine criminal, civil or administrative liability; (b) it simply determines responsibility and accountability;44 (c) it provides for flexibility in regard to rules of evidence, adopting the doctrine of totality of evidence in that courts consider all the pieces of evidence adduced in their totality, and consider any evidence otherwise inadmissible under usual rules to be admissible if it is consistent with the admissible evidence adduced, thus allowing for the admission of hearsay evidence; (d) the doctrine of command responsibility doctrine may likewise find application in proceedings seeking the privilege of the writ of amparo; (e) the writ is immediately executory and need not to await a motion for execution; (f) the retirement, reassignment or separation from the service of respondents does not necessarily terminate their amenability to the amparo proceedings. In Balao v. Macapagal-Arroyo, – SCRA – (G.R. No. 186050, 13 December 2011), the Court held that the “documented practice of targeting activists in the military’s counter-insurgency program by itself does not fulfill the evidentiary standard provided in the Amparo Rule to establish an enforced disappearance.” 4. Secretary of National Defense v. Manalo, 568 SCRA 1 (2008) “While victims of enforced disappearances are separated from the rest of the world behind secret walls, they are not separated from the constitutional protection of their basic rights. The constitution is an overarching sky that covers all in its protection.” Thus the Court began its decision in the first very petition filed for a Writ of Amparo.45 As to the Writ’s origin and nature, the Court said: “The writ of amparo originated in Mexico. ‘Amparo’ literally means ‘protection’ in Spanish.” Amparo “combines the principles of judicial review derived from the U.S. with the limitations on judicial power characteristic of the civil law tradition which prevails in Mexico. It enables courts to enforce the constitution by protecting individual rights in particular cases, but prevents them from using this power to make law for the entire nation.” Through time, adoption and adaptations in some other places, it has also begun to assume different forms for different purposes – (1) amparo libertad for the protection of personal freedom, equivalent to the habeas corpus writ; (2) amparo contra leyes for the judicial review of the constitutionality of statutes; (3)

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Rodriguez v. Macapagal-Arroyo, 660 SCRA 84 (2011), citing Secretary of National Defense v. Manalo, 568 SCRA 1 (2008)

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Responsibility refers to the extent the actors have been established by substantial evidence to have participated in whatever way, by action or omission, in an enforced disappearance, as a measure of the remedies this Court shall craft, among them, the directive to file the appropriate criminal and civil cases against the responsible parties in the proper courts. Accountability, refers to the measure of remedies that should be addressed to those [i] who exhibited involvement in the enforced disappearance without bringing the level of their complicity to the level of responsibility; or [ii] who are imputed with knowledge relating to the enforced disappearance and who carry the burden of disclosure; or [iii] those who carry, but have failed to discharge, the burden of extraordinary diligence in the investigation of the enforced disappearance.

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An earlier petition for writ of habeas corpus had been withdrawn following the escape of the the Manalo brothers who were until A Library Of Liberties An Arsenal then illegally detained following their abduction by soldiers andvis-à-vis members of the CAFGU. Even asOf theyArms were already not deprived of their liberty, they still feared for their lives and security. Therefore, they filed a petition for Prohibition, Injunction and TRO to stop the Secretary of National Defense and the Chief of Staff of the Armed Forces, as well as persons under them, from doing them harm. The moment the rules on the writ of amparo became effective, however, they asked the Court to convert their petition to one for Writ of Amparo – and the Court forthwith acceded.

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amparo casacion for the judicial review of the constitutionality and legality of a judicial decision; (4) amparo administrativo for the judicial review of administrative actions; and (5) amparo agrario for the protection of peasants’ rights derived from the agrarian reform process. In the Philippines, before the adoption of the Amparo Rules, we had the constitutional guarantee of right to life, liberty and security under the Due Process Clause and the right against unreasonable searches and seizures (Art. II, §§1 and 2), enforceable by means of the writ of habeas corpus (Art. III, §15) as well as the Grave Abuse Clause46 (Art. VIII, §1, ¶2). On the Grave Abuse Clause, the Court said: “The Clause accords a similar general protection to human rights extended by the amparo contra leyes, amparo casacion, and amparo administrativo. Amparo libertad is comparable to the remedy of habeas corpus found in several provisions of the 1987 Constitution. The Clause is an offspring of the U.S. common law tradition of judicial review, which finds its roots in the 1803 case of Marbury v. Madison.” But the means then available were obviously inadequate remedy to pressing problems of extralegal killings and enforced disappearances which cried out for better solutions. Thus, the writ of amparo. “While constitutional rights can be protected under the Grave Abuse Clause through remedies of injunction or prohibition under Rule 65 of the Rules of Court and a petition for habeas corpus under Rule 102, these remedies may not be adequate to address the pestering problem of extralegal killings and enforced disappearances. However, with the swiftness required to resolve a petition for a writ of amparo through summary proceedings and the availability of appropriate interim and permanent reliefs under the Amparo Rule, this hybrid writ of the common law and civil law traditions – borne out of the Latin American and Philippine experience of human rights abuses – offers a better remedy to extralegal killings and enforced disappearances and threats thereof. The remedy provides rapid judicial relief as it partakes of a summary proceeding that requires only substantial evidence to make the appropriate reliefs available to the petitioner; it is not an action to determine criminal guilt requiring proof beyond reasonable doubt, or liability for damages requiring preponderance of evidence, or administrative responsibility requiring substantial evidence that will require full and exhaustive proceedings.” In fine, amparo writ serves both preventive and curative roles in addressing the problem of extralegal killings and enforced disappearnces. The Amparo Rule was intended to address the intractable problem of “extralegal killings” and “enforced disappearances.” Its coverage, in its present form, is confined to these two instances or to threats thereof. And what do you mean by those terms? Extralegal killings are killings committed without due process of law, i.e., without legal safeguards or judicial proceedings. On the other hand, enforced disappearances are attended by the following characteristics: an arrest, detention or abduction of a person by a government official or organized groups or private individuals acting with the direct or indirect acquiescence of the government; the refusal of the State to disclose the fate or whereabouts of the person concerned or a refusal to acknowledge the Law the Center deprivation of liberty which placesRecoletos such persons outside protection of law. The writ of amparo is available to those whose right to life, liberty and security is violated or Bar Review 2012 threatened with violation. So what does the right entail? “The right to security or the right to security of person finds a textual hook in Article III, Section 2 of the 1987 Constitution.” This guarantees immunity of one’s person, including the extensions of his/her person – houses, papers, and effects – against government intrusion. And while the right to life guarantees essentially the right to be alive– upon which the enjoyment of all other rights is preconditioned – the right to security of person is a guarantee of the secure quality of this life. So, what in more concrete terms are included within the right A Library vis-à-vis An Arsenal Arms to security? The Court spoke ofOf theLiberties permutations of the right to security.Of The first would be freedom from fear. “In the context of Section 1 of the Amparo Rule, ‘freedom from fear’ is the right and any

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threat to the rights to life, liberty or security is the actionable wrong. Fear is a state of mind, a reaction; threat is a stimulus, a cause of action. . . . Thus, in the amparo context, it is more correct to say that the ‘right to security’ is actually the ‘freedom from threat.’” Viewed in this light, the “threatened with violation” Clause in the latter part of Section 1 of the Amparo Rule is a form of violation of the right to security mentioned in the earlier part of the provision.” The second is a guarantee of bodily and psychological integrity or security. “Physical injuries inflicted in the context of extralegal killings and enforced disappearances constitute more than a search or invasion of the body.” Also, “[p]hysical torture, force, and violence are a severe invasion of bodily integrity. When employed to vitiate the free will such as to force the victim to admit, reveal or fabricate incriminating information, it constitutes an invasion of both bodily and psychological integrity as the dignity of the human person includes the exercise of free will.” The third is a guarantee of protection of one’s rights by the government. “The right to security of person in this third sense is a corollary of the policy that the State ‘guarantees full respect for human rights’ under Article II, Section 11 of the 1987 Constitution. . . . Protection includes conducting effective investigations, organization of the government apparatus to extend protection to victims of extralegal killings or enforced disappearances (or threats thereof) and/or their families, and bringing offenders to the bar of justice.” And, must there be a prior deprivation of liberty? No. “[T]here need not necessarily be a deprivation of liberty for the right to security of person to be invoked.” How fares the petition in the instant case? On the aspect about “freedom from threat” the Court held: “[T]he circumstances of respondents’ abduction, detention, torture and escape reasonably support a conclusion that there is an apparent threat that they will again be abducted, tortured, and this time, even executed. These constitute threats to their liberty, security, and life, actionable through a petition for a writ of amparo.” With regard to the right to Government protection, the Court observed: “Apart from the failure of military elements to provide protection to respondents by themselves perpetrating the abduction, detention, and torture, they also miserably failed in conducting an effective investigation of respondents’ abduction as revealed by the testimony and investigation report of petitioners’ own witness, . . . The one-day investigation conducted by Jimenez was very limited, superficial, and one-sided.” Further, “amost a year after the policy directive was issued by petitioner Secretary of National Defense on October 31, 2007, respondents have not been furnished the results of the investigation which they now seek through the instant petition for a writ of amparo.” The Court concluded: “Under these circumstances, there is substantial evidence to warrant the conclusion that there is a violation of respondents’ right to security as a guarantee of protection by the government.” In other words, “respondents’ right to security as ‘freedom from threat’ is violated by the apparent threat to their life, liberty and security of person. Their right to security as a guarantee of protection by the government is likewise violated by the ineffectiveRecoletos investigation and protection on the part of the military.” Law Center So what reliefs are available? One would be the production by the responsible officials and persons Review 2012 of all official and unofficial reports ofBar the investigation undertaken in connection with their case, all medical reports, records and charts, reports of any treatment given or recommended and medicines prescribed, if any, to include a list of medical and (sic) personnel (military and civilian) who attended to the brothers while in detention. And, in this regard, the Court clarified the nature of an amparo production order. “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. This Constitutional provision is a protection of theOfpeople from vis-à-vis the unreasonable intrusion the government, not a A Library Liberties An Arsenal Of of Arms protection of the government from the demand of the people such as respondents. Instead, the amparo production order may be likened to the production of documents or things under Section 1, Rule 27 of the Rules of Civil Procedure.”

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Another relief is the disclosure of the present places of official assignments of identified military personnel who might have had something to do with the abduction, detention and torture of the amparo petitioners. “The disclosure of the present places of assignment of [two military men] whom respondents both directly implicated as perpetrators behind their abduction and detention, is relevant in ensuring the safety of respondents by avoiding their areas of territorial jurisdiction. Such disclosure would also help ensure that these military officers can be served with notices and court processes in relation to any investigation and action for violation of the respondents’ rights.” And by way of final note, the Court declared: “The writ of amparo is a tool that gives voice to preys of silent guns and prisoners behind secret walls.” (Now, as for you, the Bar examinee, it is time to give voice to your silent pens and to break free from the prison walls you have made out of your unfounded trepidations about the Bar exams!) 5. Razon, Jr. v. Tagitis, 606 SCRA 598 (2009) and 612 SCRA 685 (2010) The remedy under the Writ of Amparo is a work in progress, and we are all witnesses to the same. In this case the Court further expounded on the nature and importance of the Writ of Amparo. The Court said that the Writ of Amparo “does not determine guilt nor pinpoint criminal culpability for the disappearance; rather, it determines responsibility, or at least accountability, for the enforced disappearance for purposes of imposing the appropriate remedies to address the disappearance.” The Court further explained that “[i]n all these cases, the issuance of the Writ of Amparo is justified by our primary goal of addressing the disappearance, so that the life of the victim is preserved and his liberty and security are restored. We highlight this nature of a Writ of Amparo case at the outset to stress that the unique situations that call for the issuance of the writ, as well as the considerations and measures necessary to address these situations, may not at all be the same as the standard measures and procedures in ordinary court actions and proceedings. In this sense, the Rule on the Writ ofAmparo (Amparo Rule) issued by this Court is unique. The Amparo Rule should be read, too, as a work in progress, as its directions and finer points remain to evolve through time and jurisprudence and through the substantive laws that Congress may promulgate.” In regard to the need for some adjustments, specially with respect to matters of evidence, the Court explained that flexibility is necessary under the unique circumstances that enforced disappearance cases pose to the courts. To have an effective remedy, the standard of evidence must be responsive to the evidentiary difficulties faced. “Thus, while we must follow the substantial evidence rule, we must observe flexibility in considering the evidence we shall take into account. The fair and proper rule, to our mind, is to consider all the pieces of evidence adduced in their totality, and to consider any evidence otherwise inadmissible under ourRecoletos usual rules to be admissible if it is consistent with the admissible Law Center evidence adduced. In other words, we reduce our rules to the most basic test of reason – i.e., to the relevance of the evidence to the issueBar at hand and its consistency with all other pieces of adduced Review 2012 evidence. Thus, even hearsay evidence can be admitted if it satisfies this basic minimum test.”

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In Burgos, the Court concluded that “the PNP and the AFP have so far failed to conduct an exhaustive and meaningful investigation into the disappearance of Jonas Burgos, and to exercise the extraordinary diligence (in the performance of their duties) that the Rule on the Writ of Amparo requires.” The Court also referred the case to the Commission on Human Rights as “the Court’s directly commissioned

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6. Rubrico v. Macapagal-Arroyo, 613 SCRA 233 (2010) In this case, the Court discussed the doctrine of command responsibility in conjunction with the remedy of the Writ of Amparo. The Court noted that while there are several pending bills on command responsibility, there is still no Philippine law that provides for criminal liability under that doctrine. Thus, it would be inappropriate to apply to amparo proceedings the doctrine of command responsibility as a form of criminal complicity through omission, for individual respondents’ criminal liability, if there be any, is beyond the reach of amparo – the Court does not rule in such proceedings on any issue of criminal culpability, even if incidentally a crime or an infraction of an administrative rule may have been committed. On this point, Justice Carpio Morales in her separate opinion noted that the ponencia’s ambivalence on the applicability of the doctrine of command responsibility overlooks its general acceptance in public international law, which warrants its incorporation into Philippine law via the incorporation clause of the Constitution. At the same time, the Court also cautioned that the remedy of amparo ought to be resorted to and granted judiciously, lest the ideal sought by the Amparo Rule be diluted and undermined by the indiscriminate filing of amparo petitions for purposes less than the desire to secure amparo reliefs and protection and/or on the basis of unsubstantiated allegations. In his separate opinion, Justice Brion took note of another new law, The Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity (R.A. No. 9851). He said that with R.A. 9851, the Rule on the Writ of Amparo is now a procedural law anchored, not only on the constitutional rights to the rights to life, liberty and security, but on a concrete statutory definition as well of what an “enforced or involuntary disappearance” is, rendering academic and brings to a close the search for a definition that the Court undertook in Razon v. Tagitis, supra. He also noted that the doctrine of command responsibility is a substantive rule that establishes criminal or administrative liability that is different from the purpose and approach of the Amparo Rule. Section 10 of R.A. 9851 explicitly makes superiors criminally liable under the doctrine of command responsibility – liability under the doctrine of command responsibility is no longer simply administrative (based on neglect of duty – but is now criminal. At the same time, he reiterated what was earlier said in Razon v. Tagitis that it has never been the intention of the Amparo Rule to determine liability, whether criminal or administrative – the Court, under the Amparo Rule, can only direct that procedural remedies be undertaken for the protection of constitutional rights to life, liberty and security. 7. Boac v. Cadapan, 649 SCRA 618 (2011) Among the significant aspects of this case which arose from the abduction and disappearance of two Recoletos Law Center women and a man is the recognition of the credibility of the testimony of Manalo in the earlier case of Secretary of National Defense. “The Court takes judicial notice of its Decision in the just cited Secretary Review 2012 of National Defense v. Manalo whichBar assessed the account of Manalo to be a candid and forthright narrative of his and his brother Reynaldo’s abduction by the military in 2006; and of the corroborative testimonies, in the same case, of Manalo’s brother Reynaldo and a forensic specialist, as well as Manalo’s graphic description of the detention area. There is thus no compelling reason for the Court, in the present case, to disturb its appreciation in Manalo’s testimony. The outright denial of petitioners Lt. Col. Boac, et al. thus crumbles.” A Library Of Liberties vis-à-vis An Arsenal Of Arms Hierarchy of Amparo Petitioners. Also, the Court spoke of a hierarchy of parties when it comes to

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agency tasked with the continuation of the investigation of the Burgos abduction and the gathering of evidence, with the obligation to report its factual findings and recommendations to this Court.”

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petitions for writs of amparo. The exclusive and successive order mandated by Section 2 of the Rule on the Writ of Amparo must be followed. “The order of priority is not without reason – ‘to prevent the indiscriminate and groundless filing of petitions for amparo which may even prejudice the right to life, liberty or security of the aggrieved party.’” Thus, the parents of the two missing persons could not file a petition on behalf of the third missing individual, specially if there is no showing that there were no known members of the immediate family or relatives of the latter. Incidentally, in this regard the Court noted that, in contrast, in a habeas corpus proceeding, any person may apply for the writ on behalf of the aggrieved party. Command Responsibility in Amparo Proceedings. While the Court maintained the pronouncement in Rubrico in denying the application of command responsibility in amparo cases to determine criminal liability, it nevertheless went on to state that “command responsibility may be loosely applied in amparo cases in order to identify those accountable individuals that have the power to effectively implement whatever processes an amparo court would issue. In such application, the amparo court does not impute criminal responsibility but merely pinpoint the superiors it considers to be in the best position to protect the rights of the aggrieved party. Such identification of the responsible and accountable superiors may well be a preliminary determination of criminal liability which, of course, is still subject to further investigation by the appropriate government agency.” Motion for Execution of Writ of Amparo. “[T]here is no need to file a motion for execution for an amparo or habeas corpus decision. Since the right to life, liberty and security of a person is at stake, the proceedings should not be delayed and execution of any decision thereon must be expedited as soon as possible since any form of delay, even for a day, may jeopardize the very rights that these writs seek to immediately protect.” Moreover, “The Rules of Court only find suppletory application in an amparo proceeding if the Rules strengthen, rather than weaken, the procedural efficacy of the writ. As it is, the Rule dispenses with dilatory motions in view of the urgency in securing the life, liberty or security of the aggrieved party. Suffice it to state that a motion for execution is inconsistent with the extraordinary and expeditious remedy being offered by an amparo proceeding. In fine, the appellate court erred in ruling that its directive to immediately release Sherlyn, Karen and Merino was not automatically executory. For that would defeat the very purpose of having summary proceedings in amparo petitions. Summary proceedings, it bears emphasis, are immediately executory without prejudice to further appeals that may be taken therefrom.” Effect of Transfer, Retirement or Separation from Service. Finally, it is also noteworthy that some respondents remained to be such notwithstanding that they might have been reassigned or transferred or retired. We find this in the dispositive portion: “Respondents Lt. Col. Felipe Anotado, Lt. Francis Mirabelle Samson, Gen. Jovito Palparan, Lt. Col. Rogelio Boac, Arnel Enriquez and Donald Caigas shall Recoletos Law Center remain personally impleaded in the petitions to answer for any responsibilities and/or accountabilities they may have incurred during their incumbencies.”

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8. Rodriguez v. Macapagal-Arroyo), 660 SCRA 84 (2011)

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The Court discussed some noteworthy highlights regarding the writs of amparo and habeas data in this petition filed by Rodriguez who claimed to have been abducted, detained and tortured by certain elements of the military. Grant of InterimAReliefs. Being interim reliefs, they can only be granted Library Of Liberties vis-à-vis An Arsenal Of before Armsa final adjudication of the case is made. In any case, it must be underscored that the privilege of the writ of amparo, once granted, necessarily entails the protection of the aggrieved party. Accordingly, since the Court granted petitioner the privilege of the writ of amparo, there was no more need to issue a temporary protection

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order independently of the former. The order restricting respondents from going near Rodriguez is subsumed under the privilege of the writ. Concepts of Responsibility and Accountability. Since there is no determination of administrative, civil or criminal liability in amparo and habeas data proceedings, courts can only go as far as ascertaining responsibility or accountability for the enforced disappearance or extrajudicial killing. Presidential Immunity from Suit. A non-sitting President does not enjoy immunity from suit, even for acts committed during the latter’s tenure. Courts should look with disfavor upon the presidential privilege of immunity, especially when it impedes the search for truth or impairs the vindication of a right. Further, presidential immunity from suit exists only in concurrence with the president’s incumbency. Former President Arroyo cannot use the presidential immunity from suit to shield herself from judicial scrutiny that would assess whether, within the context of amparo proceedings, she was responsible or accountable for the abduction of Rodriguez. Command Responsibility in Amparo proceedings. Although originally used for ascertaining criminal complicity, the command responsibility doctrine has also found application in civil cases for human rights abuses. This development in the use of command responsibility in civil proceedings shows that the application of this doctrine has been liberally extended even to cases not criminal in nature. The Court held that command responsibility may likewise find application in proceedings seeking the privilege of the writ of amparo. The doctrine of command responsibility may be used to determine whether respondents are accountable for and have the duty to address the abduction of the petitioner in order to enable the courts to devise remedial measures to protect his rights. Nothing precludes the Court from applying the doctrine of command responsibility in amparo proceedings to ascertain responsibility and accountability in extrajudicial killings and enforced disappearances. Command responsibility of the President. The president, as commander-in-chief of the military, can be held responsible or accountable for extrajudicial killings and enforced disappearances. To hold someone liable under the doctrine of command responsibility, the following elements must obtain: (a) the existence of a superior-subordinate relationship between the accused as superior and the perpetrator of the crime as his subordinate; (b) the superior knew or had reason to know that the crime was about to be or had been committed; and (c) the superior failed to take the necessary and reasonable measures to prevent the criminal acts or punish the perpetrators thereof. The president, being the commander-in-chief of all armed forces, necessarily possesses control over the military that qualifies him as a superior within the purview of the command responsibility doctrine. On the issue of knowledge, it must be pointed out that although international tribunals apply a strict standard of knowledge, i.e., actual knowledge, such may nonetheless be established through Recoletos Law Center circumstantial evidence. In the Philippines, a more liberal view is adopted and superiors may be charged with constructive knowledge. This view is buttressed by the enactment of Executive Order No. 226, Bar Review 2012 otherwise known as the Institutionalization of the Doctrine of ‘Command Responsibility’ in all Government Offices, particularly at all Levels of Command in the Philippine National Police and other Law Enforcement Agencies (E.O. 226 [1995]). Knowledge of the commission of irregularities, crimes or offenses is presumed when (a) the acts are widespread within the government official’s area of jurisdiction; (b) the acts have been repeatedly or regularly committed within his area of responsibility; or (c) members of his immediate staff or office personnel are involved. A Library Of Liberties vis-à-vis An Arsenal Of Arms As to the issue of failure to prevent or punish, it is important to note that as the commander-in-chief of the armed forces, the president has the power to effectively command, control and discipline the military.

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Responsibility or accountability of former President Arroyo. As to the question as to whether the petitioner had proven through substantial evidence that former President Arroyo is responsible or accountable for his abduction, the Court ruled in the negative. While the Alston Report states that there is a policy allowing enforced disappearances and pins the blame on the President, the Court did not automatically impute responsibility to former President Arroyo for each and every count of forcible disappearance. Aside from general averments, there is no piece of evidence that could establish her responsibility or accountability for the abduction subject of the case. Neither was there even a clear attempt to show that she should have known about the violation of his right to life, liberty or security, or that she had failed to investigate, punish or prevent it. Doctrine of Totality of Evidence. Under the doctrine of totality of evidence in amparo cases, courts consider all the pieces of evidence adduced in their totality, and to consider any evidence otherwise inadmissible under the usual rules to be admissible if it is consistent with the admissible evidence adduced. The Court reduced the rules to the most basic test of reason – i.e., to the relevance of the evidence to the issue at hand and its consistency with all other pieces of adduced evidence. Thus, even hearsay evidence can be admitted if it satisfies this basic minimum test. Commission on Human Rights Shortcomings. Here, while the Court found that there was no substantial evince to show that the personnel of the CHR who looked into the case of Rodriguez violated, or threatened with violation, Rodriguez’s right to life, liberty and security, it nonetheless emphasized its criticism as regards their capacity to recognize torture or any similar form of abuse. The Court pointed out that the CHR, being constitutionally mandated to protect human rights and investigate violations thereof, should ensure that its officers are well-equipped to respond effectively to and address human rights violations. The actuations of respondent CHR personnel unmistakably showed their insufficient competence in facilitating and ensuring the safe release of Rodriguez after his ordeal. Effect of Failure to Conduct a Fair and Effect Investigation. The Court also said that failure to conduct a fair and effect investigation amounts to a violation of or threat to a person’s rights to life, liberty and security. The Rule on the Writ of Amparo explicitly states that the violation of or threat to the right to life, liberty and security may be caused by either an act or an omission of a public official, reiterating that in the context of amparo proceedings, responsibility may refer to the participation of the respondents, by action or omission, in enforced disappearance, while accountability may attach to respondents who are imputed with knowledge relating to the enforced disappearance and who carry the burden of disclosure; or those who carry, but have failed to discharge, the burden of extraordinary diligence in the investigation of the enforced disappearance. Adverting to Secretary of National Defense v. Manalo, 568 SCRA 1, 42 (2008), the Court reminded everyone that the right to security of a person includes the positive obligation of the government to ensure the observance of the duty to investigate. Recoletos Law Center The Court noted that in this case, there was only perfunctory investigation by the superiors, exerting no efforts to take Ramirez’s account of the events into consideration. Rather, these respondents solely relied Bar Review 2012 on the reports and narration of the military. The Court then proceeded to rule that the privilege of the writs of amparo and habeas data must be granted in Rodriguez’s favor. As a result, there is no longer any need to issue a temporary protection order, as the privilege of these writs already has the effect of enjoining respondents from violating his rights to life, liberty and security.

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A Library Of Liberties Arsenal Of Arms2011) 9. Balao v. Macapagal-Arroyo, – SCRA –vis-à-vis (G.R. No.An 186050, 13 December In this case, even as the Court reversed the trial court’s grant of the privilege of amparo, it proceeded to direct the conduct of further investigation into the abduction of a missing person. Also, in regard to

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quantum of evidence for inspection order, the Court noted: “A basic requirement before an amparo court may grant an inspection order is that the place to be inspected is reasonably determinable from the allegations of the party seeking the order. In this case, the issuance of inspection order was properly denied since the petitioners specified several military and police establishments based merely on the allegation that the testimonies of victims and witnesses in previous incidents of similar abductions involving activists disclosed that those premises were used as detention centers. In the same vein, the prayer for issuance of a production order was predicated on petitioners’ bare allegation that it obtained confidential information from an unidentified military source, that the name of James was included in the so-called Order of Battle. Indeed, the trial court could not have sanctioned any ‘fishing expedition’ by precipitate issuance of inspection and production orders on the basis of insufficient claims of one party.” 10. Canlas v. Napico Homeowners Ass’n., I – XIII, Inc., 554 SCRA 208 (2008) The threatened demolition of a dwelling by virtue of a final judgment of the court, is not included among the enumeration of rights for which the remedy of a writ of amparo is made available. The petitioners’ claim to their dwelling, assuming they still have any despite the final and executory judgment adverse to them, does not constitute right to life, liberty and security. There is, therefore, no legal basis for the issuance of the writ of amparo. This new remedy of writ of amparo is intended for the protection of the highest possible rights of any person, which is his or her right to life, liberty and security. The Court will not waste its precious time and effort on matters not covered by the writ.

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Under this privilege, a person is free to keep within his breast any incriminatory matters and he could not be forced to disclose them. If the authorities want to pin him down, they have to come up with their own proof independent of what might be concealed by the person himself. Nevertheless, it must be remembered that the guarantee is against compelled testimonial evidence, not object evidence which may include fingerprints, blood samples, urine samples, DNA samples and the like. When it comes to availing of the privilege, distinctions have to be made as to whether the person invoking it is an accused, a mere witness, or a party in a civil suit. While an accused can refuse altogether to take the witness stand, a witness may only refuse to answer incriminating questions. If he is the respondent in proceedings in which loss or forfeiture of property48 or loss of a license or profession49 is a consequence, then he may also invoke the privilege like an accused. No inference of guilt should be made from theLaw invocation of the privilege, otherwise it would be Recoletos Center useless. The prosecution is still required to prove guilt by its own evidence, not by seizing upon the exercise of the right. Bar Review 2012 Further, while the language of the privilege suggests an absolute right not to be compelled to provide an incriminating answer, the same is subject, however, to the so-called immunity statutes – the “use or derivative use” or the “transactional” immunity statutes. The courts have upheld the validity of such statutes provided they accord the person compelled to testify a degree of protection coextensive with what is otherwise guaranteed by the constitutional proscription against self-incrimination. A Library Of Liberties vis-à-vis An Arsenal Of Arms

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1. Disini v. Sandiganbayan, 621 SCRA 415 (2010) In Tanchanco v. Sandiganbayan, 476 SCRA 202 (2005), the Court held that the kind of immunity that may be granted in the Philippines is broader than American “transactional immunity” since the latter are judge-made while in the Philippines they are granted by the legislature, while in Mapa v. Sandiganbayan, 231 SCRA 783 (1994), the Government was held to its part of the bargain relative to grant of transactional immunity. Disini is again about the grant of immunity whereby, in exchange for Jesus Disini’s agreement to testify for the Government in relation to the dispute with Westinghouse regarding the Bataan Nuclear Plant, he was granted immunity from having to testify against Herminio T. Disini. Subsequently the Government said that Jesus Disini could not refuse to testify against Herminio. The Court said: “Surely, the principle of fair play, which is the essence of due process, should hold the Republic on to its promise.” The guarantee given to petitioner Disini against being compelled to testify in other cases against Herminio constitutes a grant of immunity from civil or criminal prosecution. “The grant, therefore, of immunity to petitioner Disini against being compelled to testify is ultimately a grant of immunity from being criminally prosecuted by the State for refusal to testify, something that falls within the express coverage of the immunity given him.” Then, as if to provide lessons on human relations, the Court said that it “should not allow respondent Republic, to put it bluntly, to double cross petitioner Disini. . . . More than any one, the government should be fair.”

S. EXCESSIVE FINES, CRUEL AND INHUMAN PUNISHMENTS Punishment is supposed to be the price that has to be paid by those found guilty of crimes against the State – a way of making amends for violation of society’s rules. It is the manner by which society may somehow exact a form of retribution. The constitutional guarantee on punishments is geared towards seeing to it that whatever penalty is imposed does not become such that it violates the very notion of a civilized society where the mandates of substantive due process reigns. Penalties could not be grossly disproportionate to the infraction of society’s rules.50 Fines should not be excessive, and other forms of punishments should not be cruel or inhuman as determined by present day standards. Likewise, just because a person may have been sent to prison does it mean that he is completely cut off from the world, stripped of all constitutional rights. He still retains some, though to the extent only that would be consistent with his status as prisoner. In the recent case of Brown v. Plata, 563 U.S. ___ (2011), the U.S. Supreme Court held that overcrowding in prisons resulting in deficiencies in the medical care of the prisoners violate the Eighth Amendment guarantee against cruel and unusualLaw punishments. In other words, if a prison deprives Recoletos Center prisoners of basic sustenance, including adequate medical care, the courts have a responsibility to remedy the resulting Eighth Amendment violation. Bar Review 2012

T. DOUBLE JEOPARDY

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The guarantee against double jeopardy is another assurance of fairness – that a person be not exposed more than once to the danger of being punished for the commission of the same offense. In this regard, A Library Of Liberties vis-à-vis Ansame Arsenal OfThus, Arms it must be remembered that the guarantee is in relation to the offense. it may be that a single 50

See De La Salle University, Inc. v. Court of Appeals, 541 SCRA 22 (2007)

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act could give rise to two or more offenses,51 prosecution for which will not give rise to a violation of the constitutional proscription. However, if the act gives rise to violation of a national law and a local ordinance, conviction or acquittal under either shall be a bar to prosecution for the same act. It has also been noted that double jeopardy attaches if one is tried by both a military court and a civilian court over the same act.52 The rule is also that an acquittal puts an end to the criminal case and the prosecution could not elevate it to a higher tribunal except in case of a mistrial53 or when there is grave abuse of discretion on the part of the judge amounting to lack or excess of jurisdiction which then renders the resulting judgment void.54 Neither may the prosecution appeal to increase the penalty, though if the accused himself does appeal, he stands the risk of having the penalty rectified – and increased!55 And, the employer, too, cannot appeal on behalf of an employee who has jumped bail.56 1. Heirs of Jane Honrales v. Honrales, 629 SCRA 423 (2010) The trial court acts with grave abuse of discretion where it grants the withdrawal of the Information for parricide and recalls the warrant of arrest without making an independent assessment of the merits of the case and the evidence on record. When it relies solely on the manifestation of the public prosecutor that it is abiding by the Resolution of the Secretary of Justice, the trial court abdicates its judicial power and refuses to perform a positive duty enjoined by law. The Court also held that since the offense of reckless imprudence resulting in parricide was included in the charge for intentional parricide pending before the RTC, the MeTC clearly had no jurisdiction over the subsequent criminal case for reckless imprudence resulting in parricide filed before it, the RTC having retained jurisdiction over the offense to the exclusion of all other courts. Finally, the Court also reiterated the principle that a decision rendered without jurisdiction is not a decision in contemplation of law and can never become executory. 2. People v. Laguio, Jr., 518 SCRA 393 (2007) While the prosecution cannot appeal from a judgment of acquittal or a favorable action on a demurrer to evidence, it does not necessarily mean that the prosecution is altogether precluded from questioning the trial court’s disposition. If there was grave abuse of discretion, then the matter should be elevated not by way of a petition for review on certiorari under Rule 45 (a mode of appeal) but by means of the special civil action of certiorari under Rule 65 (an original action). So, the Court lectured the prosecution in this case, pointing out as follows: “By this time, it is settled that the appellate court may review dismissal orders of trial courts granting an accused’s demurrer to evidence. This may be done via the special civil action of certiorari under Rule 65 based on the ground of grave abuse of discretion, amounting to lack or excess of jurisdiction. Such dismissal order, being considered void judgment, Center does not result in jeopardy. Thus, Recoletos when the order Law of dismissal is annulled or set aside by an appellate

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E.q., Nierras v. Dacuycuy, 181 SCRA 1 (1990) [bouncing checks], and, People v. Ortiz-Miyake, 279 SCRA 180 (1997) [illegal recruitment]; and, Ramiscal, Jr. v. Sandiganbayan, 499 SCRA 375 (2006) [R.A. 3019 and Revised Penal Code]

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People v. Laguio, Jr., 518 SCRA 393 (2007)

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A Bus Library Of Liberties vis-à-vis An OfinArms In Philippine Rabbit Lines, Inc. v. People, 427 SCRA 456 (2004), the Arsenal Court held that, accordance with the rule that only the accused may appeal, the employer cannot, independently of the convicted employee, appeal that aspect relating to its subsidiary civil liability. Where the latter jumps bail, the former cannot, by itself alone, undertake to appeal the civil aspect of the judgment. If it were otherwise allowed, such employer’s appeal would violate the employee’s right against double jeopardy since the judgment against the latter could become subject to modification without his consent, appeal opening up the whole case for review. 56

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court in an original special civil action via certiorari, the right of the accused against double jeopardy is not violated. Unfortunately, what petitioner People of the Philippines, through then Secretary of Justice Teofisto T. Guingona, Jr. and then Solicitor General Silvestre H. Bello, III, filed with the Court in the present case is an appeal by way of a petition for review on certiorari under Rule 45 raising a pure question of law, which is different from a petition for certiorari under Rule 65.”57 3. Trinidad v. Office of the Ombudsman, 539 SCRA 415 (2007) Does the rule on double jeopardy or res judicata apply in preliminary investigations? No. “Res judicata is a doctrine of civil law and thus has no bearing on criminal proceedings. But even if petitioner’s argument were to be expanded to contemplate ‘res judicata in prison grey’ or the criminal law concept of double jeopardy, this Court still finds it inapplicable to bar the reinvestigation conducted by the Office of the Ombudsman. For the dismissal of a case during preliminary investigation does not constitute double jeopardy, preliminary investigation not being part of the trial.” Accordingly, “[t]he Ombudsman is not precluded from ordering another review of a complaint, for he or she may revoke, repeal or abrogate the acts or previous rulings of a predecessor in office. And Roxas v. Hon. Vasquez teaches that new matters or evidence are not prerequisites for a reinvestigation, which is simply a chance for the prosecutor, or in this case the Office of the Ombudsman, to review and re-evaluate its findings and the evidence already submitted.” 4. People v. Sandiganbayan, 559 SCRA 449 (2008) Could a violation of basic rules of Statutory Construction constitute grave abuse of discretion? In this case, the Court said yes. Accordingly, a judgment of acquittal was deemed useless. The Court declared: “The Sandiganbayan, Fourth Division held that the qualifications for a position are provided by law and that it may well be that one who possesses the required legal qualification for a position may be temporarily disqualified for appointment to a public position by reason of the one-year prohibition imposed on losing candidates. However, there is no violation of Article 244 of the Revised Penal Code should a person suffering from temporary disqualification be appointed so long as the appointee possesses all the qualifications stated in the law. There is no basis in law or jurisprudence for this interpretation. On the contrary, legal disqualification in Article 244 of the Revised Penal Code simply means disqualification under the law.” Accordingly, the trial court, “in disregarding basic rules of statutory construction, acted with grave abuse of discretion. Its interpretation of the term legal disqualification in Article 244 of the Revised Penal Code defies legal cogency.” 5. Castro v. People, 559 SCRA 676 (2008) In this case, a school assistant head master advised a parent that talking to another parent who had Recoletos Law Center earlier filed a complaint against the school was “dangerous.” This resulted in his being charged with, and convicted of, grave oral defamation. He was found guilty by the Metropolitan Trial Court. On appeal, Bar Review 2012 the Regional Trial Court affirmed the finding of facts but found that the offense was only for slight oral 57

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See, however, People v. Dumlao, 580 SCRA 409 (2009), where the Court entertained a petition for review on certiorari under Rule 45 from a dismissal of the criminal case after arraignment, eventually holding: “The cardinal precept is that where there is a violation of basic constitutional rights, courts are ousted of their jurisdiction. Where the denial of the fundamental right to due process is apparent, a decision in disregard of the right is void for lack of jurisdiction. In the instant case, there was no error of judgment but a denial of due process resulting in loss of jurisdiction. Respondent Dumlao would not be placed in double jeopardy because, from the very beginning, A Library Of Liberties vis-à-vis Arsenal Of the Sandiganbayan had acted without jurisdiction. Precisely, any ruling issuedAn without jurisdiction is, Arms in legal contemplation, necessarily null and void and does not exist. Otherwise put, the dismissal of the case below was invalid for lack of a fundamental prerequisite, that is, due process. In rendering the judgment of dismissal, the trial court acted without or in excess of jurisdiction, for a judgment which is void for lack of due process is equivalent to excess or lack of jurisdiction. This being the case, the prosecution is allowed to appeal because it was not given its day in court.”

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defamation, and since the complaint was filed almost five (5) months from discovery, the RTC ruled that prescription had set in. It acquitted the accused. The Court of Appeals found that the RTC committed grave abuse of discretion when it misapprehended the totality of the circumstances. The CA reinstated the MeTC decision. Is the CA correct? No. An acquittal, whether ordered by the trial or appellate court, is final and unappealable on the ground of double jeopardy. The only exception is when the trial court acted with grave abuse of discretion or, when there was mistrial. In this particular case, prosecution premised its allegation of grave abuse of discretion on the RTC’s “erroneous” evaluation and assessment of the evidence presented by the parties. This would only involve errors of judgment (or those involving misappreciation of evidence or errors of law), not errors of jurisdiction (or those involving the commission of grave abuse of discretion). In fine, since no errors of jurisdiction were raised, the CA committed a mistake in taking cognizance of the petition and in reviewing the factual findings of the RTC. This time, it is the turn of the RTC judgment to be reinstated. Is the school official then completely off the hook? No, not necessarily. The Court said that at most, he could have been liable for damages under Article 26 of the Civil Code for “intriguing to cause another to be alienated from his friends.” He was then reminded that, “as an educator, he is supposed to be a role model for the youth. As such, he should always act with justice, give everyone his due and observe honesty and good faith.” (By what you preach you should also abide.) 6. Herrera v. Sandiganbayan, 579 SCRA 32 (2009) In this case, two policemen were charged before the Sandiganbayan for the death of two men. During arraignment, they pleaded not guilty, then filed a joint petition for bail raising the issue of lack of jurisdiction on the ground that the prosecution failed to allege in the informations that the crimes were committed by the petitioners “in relation to their office.” Whereupon the Sandiganbayan ordered the amendment of the informations, after which the accused were arraigned anew. They entered pleas of not guilty and also withdrew their objections to the issue of lack of jurisdiction. After trial, they were convicted of murder. Were they placed in double jeopardy? The Court held that the accused were not placed in double jeopardy in pleading not guilty under the amended informations. For a claim of double jeopardy to prosper, the following requisites must concur: (1) there is a complaint or information or other formal charge sufficient in form and substance to sustain a conviction; (2) the same is filed before a court of competent jurisdiction; (3) there is a valid arraignment or plea to the charges; and (4) the accused is convicted or acquitted or the case is otherwise dismissed or terminated without his express consent. Here, the accused pleaded not guilty to the original informations and thereafter 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” which then resulted in the SandiganbayanRecoletos order for the amendment Law Center of the informations. The first requirement for double jeopardy to attach – that the informations were valid – has not been complied with.

Bar Review 2012

Likewise, the fourth element was lacking. 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.

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7. People v. Dumlao, 580 SCRA 409 (2009) Of Liberties An Arsenal Of Arms Where a MotionAtoLibrary Dismiss/Quash is basedvis-à-vis on the ground that the “facts charged do not constitute an offense,” the Sandiganbayan cannot proceed to dismiss the case based on insufficiency of evidence. The Court reminded everyone that insufficiency of evidence is not one of the grounds for a Motion

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to Quash. “Insufficiency of evidence is a ground for dismissal of an action only after the prosecution rests its case.” So what would be the consequence? “In the case under consideration, the Sandiganbayan dismissed the case against respondent for insufficiency of evidence, even without giving the prosecution the opportunity to present its evidence. In so doing, it violated the prosecution’s right to due process. It deprived the prosecution of its opportunity to prosecute its case and to prove the accused’s culpability. It was therefore erroneous for the Sandiganbayan to dismiss the case under the premises. Not only did it not consider the ground invoked by respondent Dumlao; it even dismissed the case on a ground not raised by him, and not at the appropriate time. The dismissal was thus without basis and untimely.” The long and short of it? “The first jeopardy has not yet attached. There is no question that four of the five elements of legal jeopardy are present. However, we find the last element – valid conviction, acquittal, dismissal or termination of the case – wanting. As previously discussed, the Sandignabayan violated the prosecution’s right to due process. The prosecution was deprived of its opportunity to prosecute its case and to prove the accused’s culpability. The dismissal was made in a capricious and whimsical manner. The trial court dismissed the case on a ground not invoked by the respondent. The Sandiganbayan dismissed the case for insufficiency of evidence, while the ground invoked by the respondent was that the facts charged did not constitute an offense. The dismissal was clearly premature, because any dismissal based on insufficiency of evidence may only be made after the prosecution rests its case and not at any time before then. A purely capricious dismissal of an information deprives the State of a fair opportunity to prosecute and convict. It denies the prosecution a day in court. It is void and cannot be the basis of double jeopardy.” 8. Ivler v. Modesto-San Pedro, 635 SCRA 191 (2010) If irresponsible driving leads to a vehicular collision resulting in damage to property, injuries to a passenger and death to another passenger, how many offenses are committed? Technically, only one even as there would be two resulting charges – one for reckless imprudence resulting in physical injuries, and, another one for reckless imprudence resulting in homicide and damage to property. What if the accused pleads guilty to the lesser charge involving physical injuries, could he plead this as a way to preclude the second charge involving homicide? The Court said yes because double jeopardy would have set in – there is actually only one offense of reckless imprudence! In other words, reckless imprudence is a single crime, and its consequences on persons and property are material only to determine the penalty.

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EX POST FACTO LAWS AND BILLS OF ATTAINDER Center The constitutional proscriptionRecoletos against ex post Law facto laws and bills of attainder ensures fundamental

fairness. No man should be punished for acts which when done were perfectly lawful. Due process Review requires at the very least that before Bar a person could be 2012 held to account for what alleged wrong he committed, he was forewarned of the consequences of his act.

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Both ex post facto laws and bills of attainder are retroactive in their application. They impose a penalty or disability after the act has been committed when no such disadvantageous effect was yet present when the act was done. Worse, in the case of bills of attainder, the sanction is imposed without judicial proceedings. Thus, there is also a violation of the principle of separation of powers – Congress A judiciary Library that Of Liberties legislates but it is the adjudicates.vis-à-vis An Arsenal Of Arms With regard to the rule against ex post facto laws, it has also been observed that, “[a]s the text of the Clause makes clear, it ‘is a limitation upon the powers of the Legislature, and does not of its own force

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apply to the Judicial Branch of government.’” Nevertheless, “limitations on ex post facto judicial decisionmaking are inherent in the notion of due process.” Indeed, “[d]eprivation of the right to fair warning, . . . can result both from vague statutory language and from an unforeseeable and retroactive judicial expansion of statutory language that appears narrow and precise on its face.”58 1. Salvador v. Mapa, 539 SCRA 34 (2007) In this case, the Court claimed responsibility for adding two other types of ex post facto laws. “An ex post facto law has been defined as one – (a) which makes an action done before the passing of the law and which was innocent when done criminal, and punishes such action; or (b) which aggravates a crime or makes it greater than it was when committed; or (c) which changes the punishment and inflicts a greater punishment than the law annexed to the crime when it was committed; or (d) which alters the legal rules of evidence and receives less or different testimony than the law required at the time of the commission of the offense in order to convict the defendant. This Court added two (2) more to the list, namely: (e) that which assumes to regulate civil rights and remedies only but in effect imposes a penalty or deprivation of a right which when done was lawful; or (f) that which deprives a person accused of a crime of some lawful protection to which he has become entitled, such as the protection of a former conviction or acquittal, or a proclamation of amnesty.” And what are penal laws anyway? “The constitutional doctrine that outlaws an ex post facto law generally prohibits the retrospectivity of penal laws. Penal laws are those acts of the legislature which prohibit certain acts and establish penalties for their violations; or those that define crimes, treat of their nature, and provide for their punishment.” Thus, mere administrative issuances governing the mission and operation of a committee could not be considered as a penal law, such as Administrative Order No. 13 creating the Presidential Ad Hoc Fact-Finding Committee on Behest Loans. On the other hand, Memorandum Order No. 61 merely provides a frame of reference for determining behest loans. 2. Valeroso v. People, 546 SCRA 450 (2008) R.A. No. 8294 lowered the penalty for illegal possession of firearms but at the same time imposed a penalty of fine which was not found in P.D. No. 1866. Could this new penalty be imposed on someone who committed the crime before the amendment, and if so, would this not be a form of an ex post facto law? In Gonzales v. Court of Appeals, 277 SCRA 518 (1997), as well as in Cadua v. Court of Appeals, 312 SCRA 703 (1999), the Court said the new penalty may be imposed since an appeal throws the entire case open for review. One may wonder, however, how such reasoning could provide a satisfactory answer to the question as to why the imposition of the new penalty (fine) is not a violation of the proscription against ex post facto laws. Would it not be a case of a law “which changes the punishment Recoletos LawtoCenter and inflicts a greater punishment than the law annexed the crime when it was committed”? In Valeroso, the Court finally pronounced that there is no violation since overall the resulting penalty Bar Review 2012 is still beneficial to the accused. The Court said: “Although an additional fine of P =15,000.00 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.”

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Finally, a reason that could at least be more convincing. A Library Of Liberties vis-à-vis An Arsenal Of Arms

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Rogers v. Tennessee, 532 U.S. 451 (2001)

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3. Bureau of Customs Employees Association (BOCEA) v. Teves, 661 SCRA 589 (2011) Here, the argument was advanced that the Attrition Law (R.A. No. 9335) is a bill of attainder. The Court said no, it is not. It explained that “[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.” It also gave a brief background on bills of attainder as discussed by Justice Feliciano in his concurring opinion in Tuason v. Register of Deeds, Caloocan City, 157 SCRA 613 (1988), specifically that bills of attainder are “an ancient instrument of tyranny” whereby Parliament would at times enact bills or statutes which declared certain persons attainted and their blood corrupted so that it lost all heritable quality, though “[i]n more modern terms, a bill of attainder is essentially a usurpation of judicial power by a legislative body. It envisages and effects the imposition of a penalty – the deprivation of life or liberty or property – not by the ordinary processes of judicial trial, but by legislative fiat. While cast in the form of special legislation, a bill of attainder (or bill of pains and penalties, if it prescribed a penalty other than death) is in intent and effect a penal judgment visited upon an identified person or group of persons (and not upon the general community) without a prior charge or demand, without notice and hearing, without an opportunity to defend, without any of the civilized forms and safeguards of the judicial process as we know it.” The long and short of it, “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.”

If one were to simply follow and abide by his adversary’s definition of the problem, or his characterization of the issue, then he would have lost half the battle. One must know how to see things in proper context and in appropriate perspective in order not to be blindly led or misled. Others may want you to take the path they may prefer or have gotten accustomed to but then it may be better to take the road less traveled as it might make all the difference in the Bar . . . and in your life.59 Go forth in your quest, head up high with the self-generated confidence, motivated by what you want to be and guided by your best lights, liberated from pressures or other extraneous influences, for nothing is more satisfying and fulfilling than knowing at the end of the day that you did it – in your own way!

Recoletos Law Center Look forward then to a beautiful, refreshing and exhilarating morning when the results of your toils would finally bearReview fruits that you, your family and friends would Bar 2012 savor and enjoy.

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“Two roads diverged in a wood, and I – I took the one less traveled by, And that has made all the difference.” (Robert Frost, “The Road Not Taken” [1916])