Consti 2 Notes (Room 409)

Room 409 Constitutional Law II Notes based on the Outline and Lecture of Atty. Joan S. Largo Subject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino

I. INTRODUCTION PUBLIC LAW – branch of law which deals with the State, state agencies and the protection of state interests. (Branches: Political Law, Criminal Law, International Law.) PRIVATE LAW - branch of law which deals with the relationship between and among the individuals. (Branches: Civil Law, Commercial Law) POLITICAL LAW – branch of public law which deals with the organization and operation of the governmental organs of the State and defines the relations of the State with the inhabitants of its territory. (Subdivisions: Law on Public Administration, Constitutional Law, Administrative Law, Law on Public Corporations.) CONSTITUTIONAL LAW – a term used to designate the law embodied in the constitution and the legal principles growing out of the interpretation and application made by the courts of the provisions of the constitution in specific cases. –Sinco CONSTITUTION – body of rules and maxims with which the powers of the sovereignty are habitually exercised. – Cooley CONSTITUTIONAL LAW II – deals with the relationship between the State and the inhabitants of its territory. [The RELATIONSHIP refers to rights and obligations.] JUDICIAL REVIEW – the power of the courts to test the validity of executive and legislative acts in light of their conformity with the Constitution. (1) Ordinary Judicial Review – will determine only the issue of legality or constitutionality. (2) Expanded Judicial Review – whether or not there has been a grave abuse of discretion amounting to lack or excess application of power. JUDICIAL POWER – includes the power of the court to settle actual controversies involving rights which are legally demandable and enforceable. FUNCTIONS OF JUDICIAL REVIEW (1) CHECKING – invalidating a law or an executive act that is found to be contrary to the Constitution. (2) LEGITIMATING – upholding the validity of the law which results from a mere dismissal of a case challenging the validity of the law.

REQUISITES OF JUDICIAL REVIEW (1) Actual Case or Controversy  A conflict of legal rights, an assertion of opposite legal claims susceptible of judicial determination.  A request for an advisory opinion is not an actual case or controversy. But an action for declaratory relief is proper for judicial determination.  Issues raised must not be moot and academic; nevertheless, courts will decide a question otherwise moot, if it is capable of repetition yet evading review. (2) Proper Party  The constitutional question must be raised by the proper party.  A proper party is one who has sustained or is in the imminent danger of sustaining an injury as a result of the act complained of.  Legal Standing – is defined as a personal and substantial interest in the case such that the party has sustained or will sustain direct injury as the result of the government act.  Interest – means a material interest, an interest in issue affected by the decree. Additional Requirements:

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(3) SYMBOLIC – to educate the bench and bar as to the controlling principles and concepts on matters of great public importance.

Room 409 Constitutional Law II Notes based on the Outline and Lecture of Atty. Joan S. Largo Subject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino

(3) As a general rule, the question of constitutionality must be raised as the earliest opportunity, so that if not raised by the pleading ordinarily it may not be raised at the trial, and if not raised in the trial court, it will not be considered on appeal. Exception: Courts in the exercise of sound discretion, may determine the time when a question affecting constitutionality of a statute should be presented (PP v. Vera, 65 Phil 56). (4) As a general rule, courts will not touch the issue of unconstitutionality unless it is really unavoidable or is the very list mota of the case. DOCTRINE OF CONSTITUTIONAL SUPREMACY Implications: 1. Constitution itself, that it is deemed written in every contract and statutes. (Mla. Prince Hotel v. GSIS) 2. As the fundamental law, the Constitution is always supreme. 3. In times of conflict, the Constitution will always prevail.

II. FUNDAMENTAL POWERS OF THE STATE 1.  

Police Power – the power of the State authority to enact legislations that may interfere with personal liberty and property in order to promote the general welfare. (Agustin v. Edu) An inherent attribute of sovereignty. (MMDA v. Bel-Air) Power vested in the legislature to make, ordain, and establish all manner of wholesome and reasonable laws, statutes and ordinances, either with penalties or without, not repugnant to the Constitution, as they shall judge to be for the good and welfare of the commonwealth. (MMDA v. Bel-Air)

a. Police Power can be viewed in two ways: >Positive – the power to prescribe regulations to promote the health, morals, peace, education, good order or safety, and general welfare of the people. >Negative – that inherent and plenary power in the State which enables it to prohibit all things hurtful to the comfort, safety and welfare of society. (Agustin v. Edu)

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“It has been said the police power is so far - reaching in scope, that it has become almost impossible to limit its sweep. As it derives its existence from the very existence of the State itself, it does not need to be expressed or defined in its scope; it is said to be co-extensive with self-protection and survival, and as such it is the most positive and active of all governmental processes, the most essential, insistent and illimitable. Especially is it so under a modern democratic framework where the demands of society and of nations have multiplied to almost unimaginable proportions; the field and scope of police power has become almost boundless, just as the fields of public interest and public welfare have become almost all-embracing and have transcended human foresight. Otherwise stated, as we cannot foresee the needs and demands of public interest and welfare in this constantly changing and progressive world, so we cannot delimit beforehand the extent or scope of police power by which and through which the State seeks to attain or achieve interest or welfare. So it is that Constitutions do not define the scope or extent of the police power of the State; what they do is to set forth the limitations thereof. The most important of these are the due process clause and the equal protection clause.(Ichong v Hernandez).

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Far reaching as long as it covers public interest and public welfare. The most essential, insistent and least illimitable powers extending to all great public needs. Must be elastic and must be responsive to various social conditions. (Sangalang v. IAC, cited in Binay v. Domingo)

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b. Scope  “Police power is so extensive and so comprehensive that the courts have refused to give it an exact definition; neither have they attempted to define its definition its limitation …depends the security of social order the life and health of the citizens, the comfort of an existence in a thickly populated community, the enjoyment of private and social life and the beneficial use of property. It extends to the protection of the lives, limbs, health, comfort and quiet of all persons and the protection of all property within the state.(U.S. v. Torribio).

Room 409 Constitutional Law II Notes based on the Outline and Lecture of Atty. Joan S. Largo Subject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino

Note: Police power is not capable of an exact definition, if we will put a definition this would tantamount to limiting a flexible concept. c.

How exercised? - Through legislation

d. Who can exercise?  “There can be no doubt that the exercise of the police power of the Philippine Government belongs to the Legislature and that this power is limited only by the Acts of Congress and those fundamentals principles which lie at the foundation of all republican forms of government. An Act of the Legislature which is obviously and undoubtedly foreign to any of the purposes of the police power and interferes with the ordinary enjoyment of property would, without doubt, be held to be invalid. But where the Act is reasonably within a proper consideration of and care for the public health, safety, or comfort, it should not be disturbed by the courts. The courts cannot substitute their own views for what is proper in the premises for those of the Legislature. In Munn vs. Illinois (94 U.S., 113), the United States Supreme Court states the rule thus: "If no state of circumstances could exist to justify such statute, then we may declare this one void because in excess of the legislative power of this state; but if it could, we must presume it did. Of the propriety of legislative interference, within the scope of the legislative power, a legislature is the exclusive judge." (cited in Churchill v Rafferty). Note:  can be exercised only by an agency with legislative power.  State [Congress] – it is inherent Consequence: 1. Needs no constitutional conferment. 2. Limited judicial intervention, because of the Supreme Courts expanded certiorari jurisdiction. (see discussion on eminent domain. )  Local Government Units (LGU) – the power is delegated Consequence: 1. Should be conferred by a statute or law 2. Exercise is limited; it should be performed in accordance with the mandate of the delegating agency. 3. Greater elbow room for judicial review.

f.

What may be regulated under the Police Power? 1. Lawful subject: anything which touches on the interest of the public (refer to the subsequent cases) 2. Lawful means: reasonably necessary to achieve the subject. (refer to the subsequent cases)

Note: lawful subject: public safety Lawful means: three-flunked rule  The subject of the challenged regulation is certainly within the ambit of the police power. It is the right and indeed the responsibility of the State to insure that the medical profession is not infiltrated by incompetents to whom patients may unwarily entrust their lives and health. The method employed by the challenged regulation is not irrelevant to the purpose of the law nor is it arbitrary or oppressive. The three-flunk rule is intended to insulate the medical schools and ultimately the medical profession from the intrusion of those not qualified to be doctors. While every person is entitled to aspire to be a doctor, he does not have a constitutional right to be a doctor. This is true of any other calling in which the public interest is involved; and the closer the link, the longer the bridge to

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e. Elements for valid exercise  “There is no need to redefine here the police power of the State. Suffice it to repeat that the power is validly exercised if (a) the interests of the public generally, as distinguished from those of a particular class, require the interference of the State, and (b) the means employed are reasonably necessary to the attainment of the object sought to be accomplished and not unduly oppressive upon individuals. (DECS vs. San Diego) 1. Interest of the public generally, as distinguished from that of a particular class [lawful subject]. 2. The means employed are reasonably necessary to the attainment of the object sought to be accomplished and not unduly oppressive upon individuals [lawful means].

Room 409 Constitutional Law II Notes based on the Outline and Lecture of Atty. Joan S. Largo Subject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino

one's ambition. The State has the responsibility to harness its human resources and to see to it that they are not dissipated or, no less worse, not used at all. These resources must be applied in a manner that will best promote the common good while also giving the individual a sense of satisfaction. A person cannot insist on being a physician if he will be a menace to his patients. If one who wants to be a lawyer may prove better as a plumber, he should be so advised and adviced. Of course, he may not be forced to be a plumber, but on the other hand he may not force his entry into the bar. By the same token, a student who has demonstrated promise as a pianist cannot be shunted aside to take a course in nursing, however appropriate this career may be for others.(DECS vs. san diego) Note: lawful subject: public safety Lawful means: 500 meter gas station rule  It is a well recognized function of the police power to promote the public safety by regulating dangerous occupation, restraining dangerous practices, and prohibiting dangerous structures. The storing handing, and use of inflammable and explosive substances, being attended with danger, may be regulated under the police power. Thus the explosion of fireworks may be prohibited; and it is within the police power of a municipality, when it is deemed necessary for public safety, to prohibit the blasting of rocks with gunpowder within the city limits without the written consent of the board of aldermen. Cities and towns have power, under the general welfare provisions of statutes and charters, to enact reasonable ordinances relating to the selling and distribution oil, gasoline, an other petroleum product, within their boundaries, defining where and how filling station may be constructed and operated and regulating the use of right ways across sidewalks to such stations; and a vested right cannot be asserted against the proper exercise of such police power. An ordinance forbidding the granting of a permit or license for such a station in any location where, by reason of traffic condition or fire hazards, it would imperil the public safety, or authorizing the denial of the same if such station is found to be against the public interest, is a proper exercise of the police power, and is not invalid as denying the equal of the police power, and is not invalid as denying the equal protection of the law or leaving the granting or refusal of the permit to the arbitrary will of the municipal official with the issuance thereof. (42 C. J., p. 1306; State vs. Fleming, supra.) According to the above-cited authorities it is evidence that the municipal board of the City of Manila had the power to enact ordinance No. 1985 by virtue of the police power delegated to it by the Legislature, and consequently, said ordinance is valid and binding.(Javier vs. Earnshaw).

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“There is no question but that the challenged ordinance was precisely enacted to minimize certain practices hurtful to public morals. The explanatory note of the Councilor Herminio Astorga included as annex to the stipulation of facts, speaks of the alarming increase in the rate of prostitution, adultery and fornication in Manila traceable in great part to the existence of motels, which "provide a necessary atmosphere for clandestine entry, presence and exit" and thus become the "ideal haven for prostitutes and thrill-seekers." The challenged ordinance then proposes to check the clandestine harboring of transients and guests of these establishments by requiring these transients and guests to fill up a registration form, prepared for the purpose, in a lobby open to public view at all times, and by introducing several other amendatory provisions calculated to shatter the privacy that characterizes the registration of transients and guests." Moreover, the increase in the licensed fees was intended to discourage "establishments of the kind from operating for purpose other than legal" and at the same time, to increase "the income of the city government." It would appear therefore that the stipulation of facts, far from sustaining any attack against the validity of the ordinance, argues eloquently for it. (Ermita-Malate Hotel Operators Assoc v. City of Manila)

Note: Lawful subject: public health and safety st Lawful means: all 1 run theaters/ cinematographs should register their seating capacity with the city treasurer.  “To the foregoing must be added, and this is of common knowledge, that the films which are shown for the first time attract a large attendance, and the theatre or cinematograph, whether it is first or second

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Note: Lawful subject: public morals Lawful means: registration in motels must be in full view in order to crash out clandestine entry and therefore shutter prostitution and adultery.

Room 409 Constitutional Law II Notes based on the Outline and Lecture of Atty. Joan S. Largo Subject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino

class, presenting shows for the first time, would be suffocatingly overcrowded if the number of tickets were not limited. This is the reason for the prohibition of the sale of tickets in excess of the seating capacity. The prohibition applies with equal force wherever the same reason exists, that is, to first and second class theatres which show films for the first time.” (pp v. chan) Note: Lawful subject: public welfare (affordable drugs) Lawful means: generics drugs act  The prohibition against the use by doctors of "no substitution" and/or words of similar import in their prescription, is a valid regulation to prevent the circumvention of the law. It secures to the patient the right to choose between the brand name and its generic equivalent since his doctor is allowed to write both the generic and the brand name in his prescription form. If a doctor is allowed to prescribe a brand-name drug with "no substitution," the patient's option to buy a lower-priced, but equally effective, generic equivalent would thereby be curtailed. The law aims to benefit the impoverished (and often sickly) majority of the population in a still developing country like ours, not the affluent and generally healthy minority. (del Rosario vs. Bengzon)

2. Eminent Domain 1987 Consti. Article III, Section 9: Private property shall not be taken for public use without just compensation. Definition, Nature and Functions  “Eminent domain, the power which the Municipality of Bunawan exercised in the instant case, is a fundamental State power that is inseparable from sovereignty. It is government's right to appropriate, in the nature of a compulsory sale to the State, private property for public use or purpose. Inherently possessed by the national legislature, the power of eminent domain may be validly delegated to local governments, other public entities and public utilities. For the taking of private property by the government to be valid, the taking must be for public use and there must be just compensation.” (Moday vs. CA) 

“xxx It is recognized by all writers that the power of eminent domain is inseparable from sovereignty being essential to the existence of the State and inherent in government even in its most primitive forms. Philosophers and legists may differ as to the grounds upon which the exercise of this high power is to be justified, but no one can question its existence. No law, therefore, is ever necessary to confer this right upon sovereignty or upon any government exercising sovereign or quasi-sovereign powers. The power of eminent domain does not depend for its existence on a specific grant in the constitution. It is inherent in sovereignty and exists in a sovereign state without any recognition of it in the constitution. The provisions found in most of the state constitutions relating to the taking of property for the public use do not by implication grant the power to the government of the state, but limit a power which would otherwise be without limit.” (Visayan Refining Co. vs. Camus and Paredes)

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“Eminent domain is the right or power of a sovereign state to appropriate private property to particular uses to promote public welfare. It is an indispensable attribute of sovereignty; a power grounded in the primary duty of government to serve the common need and advance the general welfare. Thus, the right of eminent domain appertains to every independent government without the necessity for constitutional recognition. The provisions found in modern constitutions of civilized countries relating to the taking of property for the public use do not by implication grant the power to the government, but limit a power which would otherwise be without limit. Thus, our own Constitution provides that "[p]rivate property shall not be taken for public use without just compensation." Furthermore, the due process and equal protection clauses act as additional safeguards against the arbitrary exercise of this governmental power.” (Heirs of Alberto Suguitan vs. City of Mandaluyong)

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Eminent domain, also often referred to as expropriation and, with less frequency, as condemnation, is, like police power and taxation, an inherent power of sovereignty. It need not be clothed with any constitutional gear to exist; instead, provisions in our Constitution on the subject are meant more to regulate, rather than to grant, the exercise of the power. Eminent domain is generally so described as “the highest and most exact idea of property remaining in the government” that may be acquired for some public purpose through a method in the nature of a forced purchase by the State. It is a right to take or reassert dominion over property within the state for public use or to meet a

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I.

Room 409 Constitutional Law II Notes based on the Outline and Lecture of Atty. Joan S. Largo Subject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino

public exigency. It is said to be an essential part of governance even in its most primitive form and thus inseparable from sovereignty. The only direct constitutional qualification is that “private property shall not be taken for public use without just compensation.” This proscription is intended to provide a safeguard against possible abuse and so to protect as well the individual against whose property the power is sought to be enforced.(Manosca vs. CA) II. How exercised? - Through legislation III. Who may exercise? 1. Congress 2. Local Government Units >Issue of Necessity a. Congress – political question b. LGU – justiciable question 

“Upon the question whether expropriation is a legislative function exclusively, and that the courts cannot intervene except for the purpose of determining the value of the land in question, there is much legal legislature. Much has been written upon both sides of that question. A careful examination of the discussions pro and con will disclose the fact that the decisions depend largely upon particular constitutional or statutory provisions. It cannot be denied, if the legislature under proper authority should grant the expropriation of a certain or particular parcel of land for some specified public purpose, that the courts would be without jurisdiction to inquire into the purpose of that legislation. If, upon the other hand, however, the Legislature should grant general authority to a municipal corporation to expropriate private land for public purposes, we think the courts have ample authority in this jurisdiction, under the provisions above quoted, to make inquiry and to hear proof, upon an issue properly presented, concerning whether or not the lands were private and whether the purpose was, in fact, public.” “xxx The legislature, in providing for the exercise of the power of eminent domain, may directly determine the necessity for appropriating private property for a particular improvement for public use, and it may select the exact location of the improvement. In such a case, it is well settled that the utility of the proposed improvement, the extent of the public necessity for its construction, the expediency of constructing it, the suitableness of the location selected and the consequent necessity of taking the land selected for its site, are all questions exclusively for the legislature to determine, and the courts have no power to interfere, or to substitute their own views for those of the representatives of the people.” (City of Manila vs. Chinese Community of Manila)

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“The power of eminent domain is essentially legislative in nature. It is firmly settled, however, that such power may be validly delegated to local government units, other public entities and public utilities, although the scope of this delegated legislative power is necessarily narrower than that of the delegating authority and may only be exercised in strict compliance with the terms of the delegating law.” (Heirs of Alberto Suguitan vs. City of Mandaluyong)

1987 Consti. Art. VIII Section 5. The Supreme Court shall have the following powers: 1) Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus. (2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in: (a) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question. (b) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto.

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Remember: Courts to determine a. If the law or authority exists for the exercise of the right of Eminent Domain b. If the right or authority is exercised in accordance with law.

Room 409 Constitutional Law II Notes based on the Outline and Lecture of Atty. Joan S. Largo Subject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino

(c) All cases in which the jurisdiction of any lower court is in issue. (d) All criminal cases in which the penalty imposed is reclusion perpetua or higher. (e) All cases in which only an error or question of law is involved. (3) Assign temporarily judges of lower courts to other stations as public interest may require. Such temporary assignment shall not exceed six months without the consent of the judge concerned. (4) Order a change of venue or place of trial to avoid a miscarriage of justice. (5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the integrated bar, and legal assistance to the under-privileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remaineffective unless disapproved by the Supreme Court. (6) Appoint all officials and employees of the Judiciary in accordance with the Civil Service Law. Remember: the expanded certiorari jurisdiction of the Supreme Court stated above, enables the Court to determine whether or not there has been grave abuse of discretion resulting to excess or lack of jurisdiction on the part of Congress in the performance of their actions. 3. -

Private Corp. Or quasi-public authorities As long as there is a public function Requirement: as long as there is a law which empowers it.

IV. Requisites for the exercise of Eminent Domain by the LGU: The courts have the obligation to determine whether the following requisites have been complied with by the local government unit concerned: a. An ordinance is enacted by the local legislative council authorizing the local chief executive, in behalf of the local government unit, to exercise the power of eminent domain or pursue expropriation proceedings over a particular private property . >Difference of an Ordinance and a Resolution: ‘The Court in no uncertain terms have pronounced that a local government unit cannot authorize an expropriation of private property through a mere resolution of its lawmaking body. R.A. No. 7160 otherwise known as the Local Government Code expressly requires an ordinance for the purpose and a resolution that merely expresses the sentiment of the municipal council will not suffice. A resolution will not suffice for an LGU to be able to expropriate private property; and the reason for this is settled: x x x A municipal ordinance is different from a resolution. An ordinance is a law, but a resolution is merely a declaration of the sentiment or opinion of a lawmaking body on a specific matter. An ordinance possesses a general and permanent character, but a resolution is temporary in nature. Additionally, the two are enacted differently -- a third reading is necessary for an ordinance, but not for a resolution, unless decided otherwise by a majority of all the Sanggunian members.

If Congress intended to allow LGUs to exercise eminent domain through a mere resolution, it would have simply adopted the language of the previous Local Government Code. But Congress did not. In a clear divergence from the previous Local Government Code, Sec. 19 of R.A. [No.] 7160 categorically requires that the local chief executive act pursuant to an ordinance. x x x As respondent's expropriation in this case was based merely on a resolution, such expropriation is clearly defective. While the Court is aware of the constitutional policy promoting local autonomy, the court cannot grant judicial sanction to an LGU's exercise of its delegated power of eminent domain in contravention of the very law giving it such power” (Beluso vs. Municipality of Panay) b. The power of eminent domain is exercised for public use, purpose or welfare, or for the benefit of the poor and the landless. c. There is payment of just compensation, as required under Section 9, Article III of the Constitution, and other pertinent laws. d. A valid and definite offer has been previously made to the owner of the property sought to be

expropriated, but said offer was not accepted. (Heirs of Alberto Suguitan vs. City of Mandaluyong)

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Room 409 Constitutional Law II Notes based on the Outline and Lecture of Atty. Joan S. Largo Subject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino

V. Taking  Taking' under the power of eminent domain may be defined generally as entering upon private property for more than a momentary period, and, under the warrant or color of legal authority, devoting it to a public use, or otherwise informally appropriating or injuriously affecting it in such a way as substantially to oust the owner and deprive him of all beneficial enjoyment thereof. Pursuant to the aforecited authority, a number of circumstances must be present in the "taking" of property for purposes of eminent domain. First, the expropriator must enter a private property. This circumstance is present in the instant case, when by virtue of the lease agreement the Republic, through the AFP, took possession of the property of Castellvi. Second, the entrance into private property must be for more than a momentary period. "Momentary" means, "lasting but a moment; of but a moment's duration" (The Oxford English Dictionary, Volume VI, page 596); "lasting a very short time; transitory; having a very brief life; operative or recurring at every moment" (Webster's Third International Dictionary, 1963 edition.) The word "momentary" when applied to possession or occupancy of (real) property should be construed to mean "a limited period" � not indefinite or permanent. The aforecited lease contract was for a period of one year, renewable from year to year. The entry on the property, under the lease, is temporary, and considered transitory. The fact that the Republic, through the AFP, constructed some installations of a permanent nature does not alter the fact that the entry into the land was transitory, or intended to last a year, although renewable from year to year by consent of 'The owner of the land. By express provision of the lease agreement the Republic, as lessee, undertook to return the premises in substantially the same condition as at the time the property was first occupied by the AFP. It is claimed that the intention of the lessee was to occupy the land permanently, as may be inferred from the construction of permanent improvements. But this "intention" cannot prevail over the clear and express terms of the lease contract. Intent is to be deduced from the language employed by the parties, and the terms 'of the contract, when unambiguous, as in the instant case, are conclusive in the absence of averment and proof of mistake or fraud � the question being not what the intention was, but what is expressed in the language used. (City of Manila v. Rizal Park Co., Inc., 53 Phil. 515, 525); Magdalena Estate, Inc. v. Myrick, 71 Phil. 344, 348). Moreover, in order to judge the intention of the contracting parties, their contemporaneous and subsequent acts shall be principally considered (Art. 1371, Civil Code). If the intention of the lessee (Republic) in 1947 was really to occupy permanently Castellvi's property, why was the contract of lease entered into on year to year basis? Why was the lease agreement renewed from year to year? Why did not the Republic expropriate this land of Castellvi in 1949 when, according to the Republic itself, it expropriated the other parcels of land that it 14 occupied at the same time as the Castellvi land, for the purpose of converting them into a jet air base? It might really have been the intention of the Republic to expropriate the lands in question at some future

Third, the entry into the property should be under warrant or color of legal authority. This circumstance in the "taking" may be considered as present in the instant case, because the Republic entered the Castellvi property as lessee. Fourth, the property must be devoted to a public use or otherwise informally appropriated or injuriously affected. It may be conceded that the circumstance of the property being devoted to public use is present because the property was used by the air force of the AFP. Fifth, the utilization of the property for public use must be in such a way as to oust the owner and deprive him of all beneficial enjoyment of the property. In the instant case, the entry of the Republic into the property and its utilization of the same for public use did not oust Castellvi and deprive her of all beneficial enjoyment of the property. Castellvi remained as owner, and was continuously recognized as owner by the Republic, as shown by the renewal of the lease contract from year to year, and by the provision in the lease contract whereby the Republic undertook to return the property to Castellvi when the lease was terminated. Neither was Castellvi deprived of all the beneficial enjoyment of the property, because the Republic was bound to pay, and had been

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time, but certainly mere notice - much less an implied notice � of such intention on the part of the Republic to expropriate the lands in the future did not, and could not, bind the landowner, nor bind the land itself. The expropriation must be actually commenced in court (Republic vs. Baylosis, et al., 96 Phil. 461, 484).

Room 409 Constitutional Law II Notes based on the Outline and Lecture of Atty. Joan S. Largo Subject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino

paying, Castellvi the agreed monthly rentals until the time when it filed the complaint for eminent domain on June 26, 1959. (Republic vs. Vda. De Castellvi). Remember: For simplification, the elements of taking are, 1. The expropriator must enter a private property.  “The claim that petitioner would be losing P52,380,000 in unrealized revenue from advertising is based on the assumption that air time is “finished product” which, it is said, become the property of the company, like oil produced from refining or similar natural resources after undergoing a process for their production. But air time is not owned by broadcast companies. As held in Red Lion Broadcasting Co. v. F.C.C., which upheld the right of a party personally attacked to reply, “licenses to broadcast do not confer ownership of designated frequencies, but only the temporary privilege of using them.” Consequently, “a license permits broadcasting, but the licensee has no constitutional right to be the one who holds the license or to monopolize a radio frequency to the exclusion of his fellow citizens. There is nothing in the First Amendment which prevents the Government from requiring a licensee to share his frequency with others and to conduct himself as a proxy or fiduciary with obligations to present those views and voices which are representative of his community and which would otherwise, by necessity, be barred from the airwaves.” As radio and television broadcast stations do not own the airwaves, no private property is taken by the requirement that they provide air time to the COMELEC.” (TELEBAP vs. COMELEC) Note: The object of Eminent Domain is private property. Therefore public properties are not subject to Eminent Domain proceedings. 2. The entrance into the private property must be for more than a momentary period. 3. The entry into the property should be under warrant or color of legal authority.  “In this case, the petitioner’s entrance in 1978 was without intent to expropriate or was not made under warrant or color of legal authority, for it believed the property was a public land covered by Proclamation No. 1354. When the private respondent raised his claim of ownership sometime in 1979, the petitioner flatly refused the claim for compensation, nakedly insisted that the property was public land and wrongly justified its possession by alleging it had already paid ‘financial assistance’ to Marawi City in exchange for the rights of the property. Only in 1990, after more than a decade of beneficial use, did the petitioner recognize the private respondent’s ownership and negotiated for the voluntary purchase of the property. xxx Clearly, this is not the intent nor the expropriation contemplated by law. This is a simple attempt at a voluntary purchase and sale. (NAPOCOR vs. CA) Remember: Entry under the warrant or color of authority therefore means that at the onset the purpose for the taking of the property is for expropriation. 4. The property must be devoted to a public use or otherwise informally appropriated or injuriously affected.

The "public use" requirement for a and exercise of the power of eminent domain is a flexible and evolving concept influenced by changing conditions. In this jurisdiction, the statutory and judicial trend has been summarized as follows: The taking to be valid must be for public use. There was a time when it was felt that a literal meaning should be attached to such a requirement. Whatever project is undertaken must be for the public to enjoy, as in the case of streets or parks. Otherwise, expropriation is not allowable. It is not anymore. As long as the purpose of the taking is public, then the power of eminent domain comes into play. As just noted, the constitution in at least two cases, to remove any doubt, determines what is public use. One is the expropriation of lands to be subdivided into small lots for resale at cost to individuals. The other is in the transfer, through the exercise of this power, of utilities and other private enterprise to the government. It is accurate to state then that at present whatever may be beneficially employed for the general welfare satisfies the requirement of public use [Heirs of Juancho Ardona v. Reyes, G.R. Nos. 60549, 60553-60555 October 26, 1983, 125 SCRA 220 (1983) at 234-5 quoting E. FERNANDO, THE CONSTITUTION OF THE PHILIPPINES 523-4, (2nd ed., 1977) Emphasis supplied].

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Note: Socialized Housing is for Public Use  Petitioners contend that "socialized housing" as defined in Pres. Decree No. 1224, as amended, for the purpose of condemnation proceedings is not "public use" since it will benefit only "a handful of people, bereft of public character." "Socialized housing" is defined as, "the construction of dwelling units for the middle and lower class members of our society, including the construction of the supporting infrastructure and other facilities"

Room 409 Constitutional Law II Notes based on the Outline and Lecture of Atty. Joan S. Largo Subject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino

The term "public use" has acquired a more comprehensive coverage. To the literal import of the term signifying strict use or employment by the public has been added the broader notion of indirect public benefit or advantage. As discussed in the above cited case of Heirs of Juancho Ardona: Specifically, urban renewal or redevelopment and the construction of low-cost housing is recognized as a public purpose, not only because of the expanded concept of public use but also because of specific provisions in the Constitution. The 1973 Constitution made it incumbent upon the State to establish, maintain and ensure adequate social services including housing [Art. 11, sec. 7]. The 1987 Constitution goes even further by providing that: The state shall by law, and for the common good, undertake, in cooperation with the private sector, a continuing program of urban land reform and housing which will make available at affordable cost decent housing and basic services to underprivileged and homeless citizens in urban centers and resettlement areas. It shall also promote adequate employment opportunities to such citizens. In the implementation of such program the State shall respect the rights of small property owners. (Art. XIII, sec. 9, Emphaisis supplied) Housing is a basic human need. Shortage in housing is a matter of state concern since it directly and significantly affects public health, safety, the environment and in sum, the general welfare. The public character of housing measures does not change because units in housing projects cannot be occupied by all but only by those who satisfy prescribed qualifications. A beginning has to be made, for it is not possible to provide housing for are who need it, all at once. Population growth, the migration to urban areas and the mushrooming of crowded makeshift dwellings is a worldwide development particularly in developing countries. So basic and urgent are housing problems that the United Nations General Assembly proclaimed 1987 as the "International Year of Shelter for the Homeless" "to focus the attention of the international community on those problems". The General Assembly is Seriously concerned that, despite the efforts of Governments at the national and local levels and of international organizations, the driving conditions of the majority of the people in slums and squatter areas and rural settlements, especially in developing countries, continue to deteriorate in both relative and absolute terms." [G.A. Res. 37/221, Yearbook of the United Nations 1982, Vol. 36, p. 1043-4] In the light of the foregoing, this Court is satisfied that "socialized housing" fans within the confines of "public use". It is, particularly important to draw attention to paragraph (d) of Pres. Dec. No. 1224 which opportunities inextricably linked with low-cost housing, or slum clearance, relocation and resettlement, or slum improvement emphasize the public purpose of the project. (Sumulong vs. Guerrero)

Where on-site development is found more practicable and advantageous to the beneficiaries, the priorities mentioned in this section shall not apply. The local government units shall give budgetary priority to on-site development of government lands. “Sec. 10. Modes of Land Acquisition. – The modes of acquiring lands for purposes of this Act shall include, among others, community mortgage, land swapping, land assembly or consolidation, land banking, donation to the Government, joint venture agreement, negotiated purchase, and expropriation: Provided, however, That expropriation shall be resorted to only when other modes of acquisition have been exhausted: Provided further, That where expropriation is resorted to, parcels of land owned by small property owners shall be exempted for purposes of this Act: Provided, finally, That abandoned property, as herein defined, shall be reverted and escheated to the State in a proceeding analogous to the procedure laid down in Rule 91 of the Rules of Court.

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“The governing law that deals with the subject of expropriation for purposed of urban land reform and housing in Republic Act No. 7279 (Urban Development and Housing Act of 1992) and Sections 9 and 10 of which specifically provide as follows: Sec. 9. Priorities in the acquisition of Land – Lands for socialized housing shall be acquired in the following order: (a) Those owned by the Government or any of its sub-divisions, instrumentalities, or agencies, including government-owned or –controlled corporations and their subsidiaries; (b) Alienable lands of the public domain; (c) Unregistered or abandoned and idle lands; (d) Those within the declared Areas of Priority Development, Zonal Improvement sites, and Slum Improvement and Resettlement Program sites which have not yet been acquired; (e) Bagong Lipunan Improvement sites and Services or BLISS sites which have not yet been acquired; and (f) Privately-owned lands.

Room 409 Constitutional Law II Notes based on the Outline and Lecture of Atty. Joan S. Largo Subject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino

5. The utilization of the property should be in such a way to oust the owner and deprive him of all beneficial enjoyment of the property.  “It is hard to conceive how the jurisdiction, supervision and control of the appellee's waterworks system may be vested in the appellant without destroying the integrity of the appellee's right of dominion. Ownership is nothing without the inherent rights of possession, control and enjoyment. Where the owner is deprived of the ordinary and beneficial use of his property or of its value by its being diverted to public use, there is taking within the constitutional sense. Tañada & Fernando, Constitution of the Philippines, 4th ed., Vol. I, pp. 215-216. Such deprivation would be the certain consequence if, as prayed for by the appellant, it should be allowed to assume jurisdiction, supervision and control over the waterworks system of the appellee. That would be little less than an assumption of ownership itself and not of mere administration.” (Municipality of La Carlota vs. NAWASA) Note: even if the Municipality was the owner of the Waterworks system, they were deprived of the jurisdiction, supervision and control of it. This deprivation of the benefits of the waterworks system is tantamount to taking.  “xxx that while the Republic may not compel the PLDT to celebrate a contract with it, the Republic may, in the exercise of the sovereign power of eminent domain, require the telephone company to permit

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For the purpose of socialized housing, government-owned and foreclosed properties shall be acquired by the local government units, or by the National Housing Authority primarily through negotiated purchase: Provided, That qualified beneficiaries who are actual occupants of the land shall be given the right of first refusal.” (Filstream Intl Inc vs. CA) Note: Cultural Enhancement is for public Use  The term “public use,” not having been otherwise defined by the constitution, must be considered in its general concept of meeting a public need or a public exigency. Black summarizes the characterization given by various courts to the term; thus: “Public Use. Eminent domain. The constitutional and statutory basis for taking property by eminent domain. For condemnation purposes, ‘public use’ is one which confers same benefit or advantage to the public; it is not confined to actual use by public. It is measured in terms of right of public to use proposed facilities for which condemnation is sought and, as long as public has right of use, whether exercised by one or many members of public, a ‘public advantage’ or ‘public benefit’ accrues sufficient to constitute a public use. “Public use, in constitutional provisions restricting the exercise of the right to take private property in virtue of eminent domain, means a use concerning the whole community as distinguished from particular individuals. But each and every member of society need not be equally interested in such use, or be personally and directly affected by it; if the object is to satisfy a great public want or exigency, that is sufficient. Rindge Co. vs. Los Angeles County, 262 U.S. 700, 43 S.Ct. 689, 692, 67 L.Ed. 1186. The term may be said to mean public usefulness, utility, or advantage, or what is productive of general benefit. It may be limited to the inhabitants of a small or restricted locality, but must be in common, and not for a particular individual. The use must be a needful one for the public, which cannot be surrendered without obvious general loss and inconvenience. A ‘public use’ for which land may be taken defies absolute definition for it changes with varying conditions of society, new appliances in the sciences, changing conceptions of scope and functions of government, and other differing circumstances brought about by an increase in population and new modes of communication and transportation. Katz v. Brandon, 156 Conn., 521, 245 A.2d 579,586.” The validity of the exercise of the power of eminent domain for traditional purposes is beyond question; it is not at all to be said, however, that public use should thereby be restricted to such traditional uses. The idea that “public use” is strictly limited to clear cases of “use by the public” has long been discarded. This Court in Heirs of Juancho Ardona v. Reyes, quoting from Berman v. Parker (348 U.S. 25; 99 L. ed. 27), held: “x x x A historical research discloses the meaning of the term ‘public use’ to be one of constant growth. As society advances, its demands upon the individual increase and each demand is a new use to which the resources of the individual may be devoted. x x x for ‘whatever is beneficially employed for the community is a public use.’” “xxx This attempt to give some religious perspective to the case deserves little consideration, for what should be significant is the principal objective of, not the casual consequences that might follow from, the exercise of the power. The purpose in setting up the marker is essentially to recognize the distinctive contribution of the late Felix Manalo to the culture of the Philippines, rather than to commemorate his founding and leadership of the Iglesia ni Cristo. The practical reality that greater benefit may be derived by members of the Iglesia ni Cristo than by most others could well be true but such a peculiar advantage still remains to be merely incidental and secondary in nature. Indeed, that only a few would actually benefit from the expropriation of property does not necessarily diminish the essence and character of public use.” (Manosca vs. CA)

Room 409 Constitutional Law II Notes based on the Outline and Lecture of Atty. Joan S. Largo Subject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino

interconnection of the government telephone system and that of the PLDT, as the needs of the government service may require, subject to the payment of just compensation to be determined by the court. Nominally, of course, the power of eminent domain results in the taking or appropriation of title to, and possession of, the expropriated property; but no cogent reason appears why the said power may not be availed of to impose only a burden upon the owner of condemned property, without loss of title and possession. It is unquestionable that real property may, through expropriation, be subjected to an easement of right of way. The use of the PLDT's lines and services to allow interservice connection between both telephone systems is not much different. In either case private property is subjected to a burden for public use and benefit. If, under section 6, Article XIII, of the Constitution, the State may, in the interest of national welfare, transfer utilities to public ownership upon payment of just compensation, there is no reason why the State may not require a public utility to render services in the general interest, provided just compensation is paid therefor. Ultimately, the beneficiary of the interconnecting service would be the users of both telephone systems, so that the condemnation would be for public use.” (Republic vs. PLDT) Note: Deprivation of ownership is tantamount to taking (in Eminent Domain cases). VI. Just Compensation  “Just compensation means the value of the property at the time of the taking. It means a fair and full equivalent for the loss sustained. All the facts as to the condition of the property and its surroundings, its improvements and capabilities, should be considered.” (EPZA vs. Dulay) a. Stages in Eminent Domain (expropriation) proceedings:  “x x x The first is concerned with the determination of the authority of the plaintiff to exercise the power of eminent domain and the propriety of its exercise in the context of the facts involved in the suit. It ends with an order, if not of dismissal of the action, “of condemnation declaring that the plaintiff has a lawful right to take the property sought to be condemned, for the public use or purpose described in the complaint, upon the payment of just compensation to be determined as of the date of the filing of the complaint” x x x.  The second phase of the eminent domain action is concerned with the determination by the court of “the just compensation for the property sought to be taken.” This is done by the court with the assistance of not more than three (3) commissioners. x x x. (Municipality of Binan vs. Garcia) b. Computation Just Compensation = Fair Market Value + [Consequential Damages – Consequential Benefits] JC = FMV + [CD- CB] Note: the formula will apply if only a portion of the property is taken. Fair Market Value – is the price arrived at by one who is not compelled to buy and one who is not willing to sell. Reckoning point: “Thus, the value of the property must be determined either as of the date of the taking of the property or the filing of the complaint, "whichever came first." Even before the new rule, however, it was already held in Commissioner of Public Highways v. Burgos that the price of the land at the time of taking, not its value after the passage of time, represents the true value to be paid as just compensation. It was, therefore, error for the Court of Appeals to rule that the just compensation to be paid to respondent should be determined as of the filing of the complaint in 1990, and not the time of its taking by the NIA in 1981, because petitioner was allegedly remiss in its obligation to pay respondent, and it was respondent who filed the complaint. In the case of Burgos, it was also the property owner who brought the action for compensation against the government after 25 years since the taking of his property for the construction of a road. Indeed, the value of the land may be affected by many factors. It may be enhanced on account of its taking for public use, just as it may depreciate. As observed in Republic v. Lara: [W]here property is taken ahead of the filing of the condemnation proceedings, the value thereof may be enhanced by the public purpose for which it is taken; the entry by the plaintiff upon the property may have depreciated its value thereby; or there may have been a natural increase in the value of the property from the time it is taken to the time the complaint is filed, due to general economic conditions. The owner of private property

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c. 

Room 409 Constitutional Law II Notes based on the Outline and Lecture of Atty. Joan S. Largo Subject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino

should be compensated only for what he actually loses; it is not intended that his compensation shall extend beyond his loss or injury. And what he loses is only the actual value of his property at the time it is taken. This is the only way that compensation to be paid can be truly just, i.e., "just" not only to the individual whose property is taken, "but to the public, which is to pay for it" (MCIAA vs. Rodriguez) Note: if the taking and filing coincides, the reckoning point is the filing. If the taking preceded the filing, the reckoning point will be the taking. PRINCIPLE: If consequential benefits exceeds the consequential damages, the computation will be JC = FMV, the [CD- CB] should be disregarded, because expropriator should indemnify the lose acquired by the owner. d. Who determines just compensation?  The determination of "just compensation" in eminent domain cases is a judicial function. The executive department or the legislature may make the initial determinations but when a party claims a violation of the guarantee in the Bill of Rights that private property may not be taken for pubhc use without just compensation, no statute, decree, or executive order can mandate that its own determination shag prevail over the court's findings. Much less can the courts be precluded from looking into the "just-ness" of the decreed compensation. xxx It is violative of due process to deny to the owner the opportunity to prove that the valuation in the tax documents is unfair or wrong. And it is repulsive to basic concepts of justice and fairness to allow the haphazard work of a minor bureaucrat or clerk to absolutely prevail over the judgment of a court promulgated only after expert commissioners have actually viewed the property, after evidence and arguments pro and con have been presented, and after all factors and considerations essential to a fair and just determination have been judiciously evaluated. (EPZA vs. Dulay)

Sec. 6. Proceedings by commissioners. Before entering upon the performance of their duties, the commissioners shall take and subscribe an oath that they will faithfully perform their duties as commissioners, which oath shall be filed in court with the other proceedings in the case. Evidence may be introduced by either party before the commissioners who are authorized to administer oaths on hearings before them, and the commissioners shall, unless the parties consent to the contrary, after due notice to the parties to attend, view and examine the property sought to be expropriated and its surroundings, and may measure the same, after which either party may, by himself or counsel, argue the case. The commissioners shall assess the consequential damages to the property not taken and deduct from such consequential damages the consequential benefits to be derived by the owner from the public use or purpose of the property taken, the operation of its franchise by the corporation or the carrying on of the business of the corporation or person taking the property. But in no case shall the consequential benefits assessed exceed the consequential damages assessed, or the owner be deprived of the actual value of his property so taken. Sec. 7. Report by commissioners and judgment thereupon. The court may order the commissioners to report when any particular portion of the real estate shall have been passed upon by them, and may render judgment upon such partial report, and direct the commissioners to proceed with their work as to subsequent portions of the property sought to be expropriated, and may from time to time so deal with such property. The commissioners shall make a full and accurate report to the court of all their proceedings, and such proceedings shall not be effectual until the court shall have accepted their report and rendered judgment in accordance with their recommendations. Except as otherwise expressly ordered by the court, such report shall be filed within sixty (60) days from the date the commissioners were notified of their appointment, which time may be extended in the discretion of the court. Upon the filing of such report, the clerk of the court shall serve copies thereof on all interested parties, with notice that they are allowed ten (10) days within which to file objections to the findings of the report, if they so desire.

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Rule 67 of the Rules of Court (Expropriation) Sec. 5. Ascertainment of compensation. Upon the rendition of the order of expropriation, the court shall appoint not more than three (3) competent and disinterested persons as commissioners to ascertain and report to the court the just compensation for the property sought to be taken. The order of appointment shall designate the time and place of the first session of the hearing to be held by the commissioners and specify the time within which their report shall be submitted to the court. Copies of the order shall be served on the parties. Objections to the appointment of any of the commissioners shall be filed with the court within ten (10) days from service, and shall be resolved within thirty (30) days after all the commissioners shall have received copies of the objections.

Room 409 Constitutional Law II Notes based on the Outline and Lecture of Atty. Joan S. Largo Subject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino

Sec. 8. Action upon commissioners’ report. Upon the expiration of the period of ten (10) days referred to in the preceding section, or even before the expiration of such period but after all the interested parties have filed their objections to the report or their statement of agreement therewith, the court may, after hearing, accept the report and render judgment in accordance therewith; or, for cause shown, it may recommit the same to the commissioners for further report of facts; or it may set aside the report and appoint new commissioners; or it may accept the report in part and reject it in part; and it may make such order or render such judgment as shall secure to the plaintiff the property essential to the exercise of his right of expropriation, and to the defendant just compensation for the property so taken. e. Entry into the property i. LGU R.A. 7160, SEC. 19. Eminent Domain. - A local government unit may, through its chief executive and acting pursuant to an ordinance, exercise the power of eminent domain for public use, or purpose, or welfare for the benefit of the poor and the landless, upon payment of just compensation, pursuant to the provisions of the Constitution and pertinent laws: Provided, however, That the power of eminent domain may not be exercised unless a valid and definite offer has been previously made to the owner, and such offer was not accepted: Provided, further, That the local government unit may immediately take possession of the property upon the filing of the expropriation proceedings and upon making a deposit with the proper court of at least fifteen percent (15%) of the fair market value of the property based on the current tax declaration of the property to be expropriated: Provided, finally, That, the amount to be paid for the expropriated property shall be determined by the proper court, based on the fair market value at the time of the taking of the property. ii. other expropriators. Revised Rules of Court, Sec. 2. Entry of plaintiff upon depositing value with authorized government depositary. Upon the filing of the complaint or at any time thereafter and after due notice to the defendant, the plaintiff shall have the right to take or enter upon the possession of the real property involved if he deposits with the authorized government depositary an amount equivalent to the assessed value of the property for purposes of taxation to be held by such bank subject to the orders of the court. Such deposit shall be in money, unless in lieu thereof the court authorizes the deposit of a certificate of deposit of a government bank of the Republic of the Philippines payable on demand to the authorized government depositary. If personal property is involved, its value shall be provisionally ascertained and the amount to be deposited shall be promptly fixed by the court. After such deposit is made the court shall order the sheriff or other proper officer to forthwith place the plaintiff in possession of the property involved and promptly submit a report thereof to the court with service of copies to the parties. Just Compensation: how payable? Payable in cash, exception: agrarian expropriation where the expropriator can pay by means of government bonds. g. Just Compensation: when payable?  “In summation, while the prevailing doctrine is that “the non-payment of just compensation does not [ entitle the private landowner to recover possession of the expropriated lots, however, in cases where the government failed to pay just compensation within five (5) years from the finality of the judgment in the expropriation proceedings, the owners concerned shall have the right to recover possession of their property. This is in consonance with the principle that “the government cannot keep the property and dishonor the judgment.” To be sure, the five-year period limitation will encourage the government to pay just compensation punctually. This is in keeping with justice and equity. After all, it is the duty of the government, whenever it takes property from private persons against their will, to facilitate the payment of [29] just compensation. In Cosculluela v. Court of Appeals, we defined just compensation as not only the correct determination of the amount to be paid to the property owner but also the payment of the property within a reasonable time. Without prompt payment, compensation cannot be considered “just.” (People vs. Lim) h. Who should be made party to an expropriation proceedings? “The defendants in an expropriation case are not limited to the owners of the property condemned. They include all other persons owning, occupying or claiming to own the property. When a parcel of land is taken by eminent domain, the owner of the fee is not necessarily the only person who is entitled to compensation. In the

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f.

Room 409 Constitutional Law II Notes based on the Outline and Lecture of Atty. Joan S. Largo Subject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino

American jurisdiction, the term "owner" when employed in statutes relating to eminent domain to designate the persons who are to be made parties to the proceeding, refers, as is the rule in respect of those entitled to compensation, to all those who have lawful interest in the property to be condemned, including a mortgagee, a lessee and a vendee in possession under an executory contract. Every person having an estate or interest at law or in equity in the land taken is entitled to share in the award. If a person claiming an interest in the land sought to be condemned is not made a party, he is given the right to intervene and lay claim to the compensation.” (de Knecht vs. CA) VII. Allied Provisions

1987 Consti. Artcile XII, Section 17. In times of national emergency, when the public interest so requires, the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately-owned public utility or business affected with public interest. 

VIII. 



Eminent Domain as Differentiated from Police Power “But while property may be regulated in the interest of the general welfare, and in its pursuit, the State may prohibit structures offensive to the sight (Churchill and Tait vs. Rafferty, 32 Phil. 580), the State may not, under the guise of police power, permanently divest owners of the beneficial use of their property and practically confiscate them solely to preserve or assure the aesthetic appearance of the community. As the case now stands, every structure that may be erected on appellants' land, regardless of its own beauty, stands condemned under the ordinance in question, because it would interfere with the view of the public plaza from the highway. The appellants would, in effect, be constrained to let their land remain idle and unused for the obvious purpose for which it is best suited, being urban in character. To legally achieve that result, the municipality must give appellants just compensation and an opportunity to be heard.” (Pp vs. Fajardo) Police power has been defined as the "state authority to enact legislation that may interfere with personal liberty or property in order to promote the general welfare." It consists of two essential elements. First, it is an imposition of restraint upon liberty or property. Second, the power is exercised for the benefit of the common good. Its definition in elastic terms underscores its all-encompassing and comprehensive embrace. It is and still is the “most essential, insistent, and illimitable” of the State’s powers. It is familiar knowledge that unlike the power of eminent domain, police power is exercised without provision for just compensation for its paramount consideration is public welfare.

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“The above provision pertains to the right of the State in times of national emergency, and in the exercise of its police power, to temporarily take over the operation of any business affected with public interest. In the 1986 Constitutional Commission, the term “national emergency” was defined to include threat from external aggression, calamities or national disasters, but not strikes “unless it is of such proportion that would paralyze government service.” The duration of the emergency itself is the determining factor as to how long the temporary takeover by the government would last. The temporary takeover by the government extends only to the operation of the business and not to the ownership thereof. As such the government is not required to compensate the private entity-owner of the said business as there is no transfer of ownership, whether permanent or temporary. The private entityowner affected by the temporary takeover cannot, likewise, claim just compensation for the use of the said business and its properties as the temporary takeover by the government is in exercise of its police power and not of its power of eminent domain. PIATCO cannot, by mere contractual stipulation, contravene the Constitutional provision on temporary government takeover and obligate the government to pay “reasonable cost for the use of the Terminal and/or Terminal Complex.” Article XII, section 17 of the 1987 Constitution envisions a situation wherein the exigencies of the times necessitate the government to “temporarily take over or direct the operation of any privately owned public utility or business affected with public interest.” It is the welfare and interest of the public which is the paramount consideration in determining whether or not to temporarily take over a particular business. Clearly, the State in effecting the temporary takeover is exercising its police power. Police power is the “most essential, insistent, and illimitable of powers.” Its exercise therefore must not be unreasonably hampered nor its exercise be a source of obligation by the government in the absence of damage due to arbitrariness of its exercise. Thus, requiring the government to pay reasonable compensation for the reasonable use of the property pursuant to the operation of the business contravenes the Constitution. (Agan vs. PIATCO, May 2003)

Room 409 Constitutional Law II Notes based on the Outline and Lecture of Atty. Joan S. Largo Subject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino

It is also settled that public interest on the occasion of a national emergency is the primary consideration when the government decides to temporarily take over or direct the operation of a public utility or a business affected with public interest. The nature and extent of the emergency is the measure of the duration of the takeover as well as the terms thereof. It is the State that prescribes such reasonable terms which will guide the implementation of the temporary takeover as dictated by the exigencies of the time. As we ruled in our Decision, this power of the State can not be negated by any party nor should its exercise be a source of obligation for the State. (Agan vs. PIATCO, Jan. 2004) Note: Police Power Eminent Domain 1. Restricts/ divests/ limits the use of property. 2. No compensation.

1. Property is applied/ appropriated for public use. 2. With just compensation.

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3. TAXATION A. Definition, Nature, Purpose and Basis Definition: TAXES are the enforced proportional contributions from persons and property, levied by the State by virtue of its sovereignty, for the support of government and for all public needs. TAXATION is the method by which these contributions are exacted. Importance of Taxation The importance of taxation derives from the unavoidable obligation of the government to protect the people and extend the benefits in the form of public projects and services. In exchange for these, the people are subjected to the reciprocal duty of sharing the expenses to be incurred therefore through the payment by them of taxes. [Cruz] The obligation to pay taxes is not based on contract. It is a duty imposed upon the individual by the mere fact of his membership in the body politic and his enjoyment of the benefits available from such membership. [Cruz]

The Power to Tax is the Power to Destroy The power to tax may include the power to destroy if it is used validly as an implement of the police power in discouraging and in effect ultimately prohibiting certain things or enterprises inimical to the public welfare. Thus, if massage parlors are found to be mere fronts for prostitution, they may be subjected to such onerous taxes as to practically force them to stop operating. But: Where the power to tax is used solely for the purpose of raising revenues, the modern view is that it cannot be allowed to confiscate or destroy. If this is sought to be done, the tax maybe successfully attacked as an inordinate and unconstitutional exercise of the discretion that is usually vested exclusively in the legislature in ascertaining the amount of the tax. Due Process and Taxation Taxation is subject to the requirements of due process. It has already been observed that taxes will not be allowed if they are confiscatory except when they intend precisely for destruction as an instrument of the police power. From procedural viewpoint, due process does not require previous notice and hearing before a law prescribing fixed or specific taxes on certain article may be enacted. But where the tax to be collected is to be based on the value of the taxable property, the taxpayer is entitled to be notified of the assessment proceedings and to be heard therein on the correct valuation to be given the property.

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Taxes v. Licenses Taxes are distinguished from licenses in the sense that the former are levied to raise revenues; whereas the latter are imposed for regulatory purposes only. Licenses are justified under the police power, and the amount of the fees required is usually limited only to the cost of regulation.

Room 409 Constitutional Law II Notes based on the Outline and Lecture of Atty. Joan S. Largo Subject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino

Equal Protection and Taxation Taxation is subject to the general requirements of the equal protection clause. Additionally, it is provided in the Constitution that “the rule of taxation shall be uniform and equitable.” Uniformity in Taxation means that persons or things belonging to the same class shall be taxed at the same rate. Equality of Taxation means that the tax shall be strictly proportional to the relative value of the property. The above rules require a valid classification in the selection of the objects of taxation. Equitable Taxation connotes that taxes should be apportioned among the people according to their capacity to pay. Public Purpose To sustain a tax, it is necessary to show that the proceeds are devoted to public purpose. Revenues derived from taxes cannot be used for purely private purposes or for the exclusive benefit of private persons. The phrase “public purpose” as applied to taxation is now given the broadest interpretation so as to include even indirect public advantage or benefit. Taxes are the lifeblood of government (Life Blood Theory)  “The Bureau of Internal Revenue should be given, in instances like the case at bar, the necessary discretion to avail itself of the most expeditious way to collect the tax …. because taxes are the lifeblood of government and their prompt and certain availability is an imperious need..” CIR v. Pineda, 21 SCRA 105  “Taxes are the lifeblood of the government and so should be collected without unnecessary hindrance…….It is said that taxes are what we pay for civilization society. Without taxes, the government would be paralyzed for lack of the motive power to activate and operate it. Hence, despite the natural reluctance to surrender part of one's hard earned income to the taxing authorities, every person who is able to must contribute his share in the running of the government. The government for its part, is expected to respond in the form of tangible and intangible benefits intended to improve the lives of the people and enhance their moral and material values. This symbiotic relationship is the rationale of taxation and should dispel the erroneous notion that it is an arbitrary method of exaction by those in the seat of power.”CIR v. Algue, L-28896, 17 February 1988

ARTICLE X, Sec. 5, 1987 Constitution “Each local government unit shall have the power to create its own sources of revenues and to levy taxes, fees and charges subject to such guidelines and limitations as the Congress may provide, consistent with the basic policy of local autonomy. Such taxes, fees, and charges shall accrue exclusively to the local governments.” ARTICLE X, Sec. 3, 1987 Constitution “The Congress shall enact a local government code which shall provide for a more responsive and accountable local government structure instituted through a system of decentralization with effective mechanisms of recall, initiative, and referendum, allocate among the different local government units their powers, responsibilities, and resources, and provide for the qualifications, election, appointment and removal, term, salaries, powers and functions and duties of local officials, and all other matters relating to the organization and operation of the local units.”

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B. When exercised by legislature; When exercised by LGU, LGU’s derive their authority to Tax from the Constitution subject to limitations as may be provided for by law (Under the 1987 Constitution)  Congress, therefore cannot pass a law saying that LGU’s do not have the power to tax. However, as to what to tax or as to what not to tax maybe a subject matter of legislation. Example, when Congress passes a law that exempts certain establishments from taxation, then LGU’s must have to abide to such exemptions.  The power of taxation is inherent in the State. Primarily vested in the national legislature, it may now also be exercised by the local legislative bodies, no longer by virtue of a valid delegation as before pursuant to a direct authority conferred by:

Room 409 Constitutional Law II Notes based on the Outline and Lecture of Atty. Joan S. Largo Subject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino

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“Petitioners also argue that the Local Autonomy Clause of the Constitution (Art. X, Sec. 5, 1987 Constitution) will be violated by P.D. 1869. This is a pointless argument…..The power of local government to impose taxes and fees is always subject to limitations which Congress may provide by law. Since PD 1869 remains an operative law until amended, repealed or revoked (Sec. 3, Art. XVIII, 1987 Constitution), its exemption clause remains as an exemption to the exercise of the power of local governments to impose taxes and fees. It cannot therefore be violative but rather consistent with the principle of local autonomy.” Basco v. PAGCOR, 197 SCRA 52

C. Elements for Valid Exercise ARTICLE VI, Sec. 28, 1987 Constitution 1. The rule of taxation shall be uniform and equitable. The Congress shall evolve a progressive system of taxation. 2. The Congress may, by law, authorize the President to fix within specified limits, and subject to such limitations and restrictions as it may impose, tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts within the framework of the national development program of the Government. 3. Charitable institutions, churches and personages or convents appurtenant thereto, mosques, non-profit cemeteries, and all lands, buildings, and improvements, actually, directly, and exclusively used for religious, charitable, or educational purposes shall be exempt from taxation. 4. No law granting any tax exemption shall be passed without the concurrence of a majority of all the Members of the Congress. ARTICLE VI, Sec. 29 (3), 1987 Constitution 3. All money collected on any tax levied for a special purpose shall be treated as a special fund and paid out for such purpose only. If the purpose for which a special fund was created has been fulfilled or abandoned, the balance, if any, shall be transferred to the general funds of the Government. “Petitioner invoke the kindred concept of uniformity. According to the Constitution: the rule of taxation shall be uniform and equitable. This requirement is met according to Justice Laurel in Philippine Trust Co. V. Yatco, decided in 1940, when the tax operates with the same force and effect in every place where the subject may be found. He likewise added, the rule of uniformity does not call for perfect uniformity or perfect equality because this is hardly attainable. The problem of classification did no present itself in that case. It did not arise until nine years later, when the SC held: Equality and uniformity in taxation means that all taxable articles or kinds of property of the same class shall be taxed at the same rate. The taxing power has the authority to make reasonable and natural classifications for purposes of taxation... As clarified by Justice Tuason, where the differentiation complained of conforms to the practical dictates of justice and equity it is not discriminatory within the meaning of this clause and therefore uniform. There is quite similarity then to the standard of equal protection for all that is required is tat the tax applies to all persons, firms and corporations places in similar situations.” Sison v. Ancheta, G.R. No. 58431, Jul 25, 1984  “Petitioner intimates that RA No. 7496 desecrates the constitutional requirement that taxation shall be uniform and equitable in that the law would now attempt to tax single proprietorships and professionals differently from the manner it imposes the tax on corporations and partnerships. The contention clearly forgets, however, that such a system of income taxation has long been the prevailing rule even prior to RA No. 7496.” “Uniformity of taxation, like the kindred concept of equal protection, merely requires that all subjects of taxation, similarly situated, are to be treated alike both in privileges and liabilities. Uniformity does not forfend classification as long as (1) the standards that are used therefore are substantial and not arbitrary, (2) the categorization is germane to achieve the legislative purpose, (3) the law applies, all things being equal, to both present and future conditions, and (4) the classification applies equally well to all those belonging to the same class.” Tan v. Del Rosario, 237 SCRA 324 D. Tax Exemptions ARTICLE XIV, Sec. 4 (3) 3. All revenues and assets of non-stock, non-profit educational institutions used actually, directly, and exclusively for educational purposes shall be exempt from taxes and duties. Upon the dissolution or cessation of the corporate existence of such institutions, their assets shall be disposed of in the manner

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Room 409 Constitutional Law II Notes based on the Outline and Lecture of Atty. Joan S. Largo Subject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino

provided by law. Proprietary educational institutions, including those cooperatively owned, may likewise be entitled to such exemptions, subject to the limitations provided by law, including restrictions on dividends and provisions for reinvestment. ARTICLE VI, Sec. 28 (3) and (4) 3. Charitable institutions, churches and personages or convents appurtenant thereto, mosques, non-profit cemeteries, and all lands, buildings, and improvements, actually, directly, and exclusively used for religious, charitable, or educational purposes shall be exempt from taxation. 4. No law granting any tax exemption shall be passed without the concurrence of a majority of all the Members of the Congress. //rhen

III. CONSTITUTIONAL RIGHTS AND PRIVILEGES A. BILL OF RIGHTS- enumeration of rights and privileges which the Constitution protects. B. KINDS OF RIGHTS 1. Inherent - by reason of human existence - does not need Constitutional conferment Inherent/ Human Rights a. civil b. political c. economic d. social e. cultural 2. Constitutional – conferred by the Constitution; also includes inherent rights 3. Statutory rights – dependent upon the existence of a statute; get the statute and the right disappears, thus, it is the least of all rights. C. NATURE OF THE PROVISIONS  “self-executing, mandatory….” (Mla Prince v. GSIS) D. Enforceable Against Whom?  “The constitutional issues raised by Domasian do not affect the decision in this case. His claim that he was arrested without warrant and then tortured and held incommunicado to extort a confession from him does not vitiate his conviction. He never gave any confession. As for the allegation that the seizure of the documents used for comparison with the ransom note was made without a search warrant, it suffices to say that such documents were taken by Agra himself and not by the NBI agents or other police 20 authorities. We held in the case of People vs. Andre Marti, that the Bill of Rights cannot be invoked against acts of private individuals, being directed only against the government and its law-enforcement agencies and limitation on official action.” (People v. Domasian)

Article III, Section 1, Consti. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws. NOTE: The first phrase which states that “no person xxx” connotes that the provision is MANDATORY. The word “person” refers to the inhabitants: a. Natural persons – citizens and aliens b. Juridical persons – limited to property 

“Hence, the charge against an alien must specify the acts or omissions complained of which must be stated in ordinary and concise language to enable a person of common understanding to know on what ground he is intended to be deported and enable the CID to pronounce a proper judgment.” (Lao Gi v. CA)

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IV. DUE PROCESS OF LAW

Room 409 Constitutional Law II Notes based on the Outline and Lecture of Atty. Joan S. Largo Subject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino

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I.

“xxx binding not only upon the Government but to everyone of its branches, agencies, instrumentalities xxx” (Halili v. Public Service) “The first is that the Due Process Clause of the Constitution is a limitation on governmental powers. It does not apply to the exercise of private power, such as the termination of employment under the Labor Code. This is plain from the text of Art. III, 1 of the Constitution, viz.: "No person shall be deprived of life, liberty, or property without due process of law. . . ." The reason is simple: Only the State has authority to take the life, liberty, or property of the individual. The purpose of the Due Process Clause is to ensure that the exercise of this power is consistent with what are considered civilized methods.” (Serrano v. NLRC) NOTE: due process emanates not only from the Constitution but also in statutes (Statutory due process), e.g. Labor Code.

In general  "Due process of law" is process or proceedings according to the law of the land. "Due process of law" is not that the law shall be according to the wishes of all the inhabitants of the state, but simply First. That there shall be a law prescribed in harmony with the general powers of the legislative department of the Government; Second. That this law shall be reasonable in its operation; Third. That it shall be enforced according to the regular methods of procedure prescribed; and Fourth. That it shall be applicable alike to all the citizens of the state or to all of a class. (U.S. v LING SU FAN) NOTE: first and second requirements refer to substantive due process while the third and fourth requirements refer to procedural due process.

II. Substantive Due Process  Test: 1. Reasonableness – lawful subject & lawful means

3. Publication. “Publication is indispensable in every case, but the legislature may in its discretion provide that the usual fifteen-day period shall be shortened or extended. An example, as pointed out by the 6 present Chief Justice in his separate concurrence in the original decision, is the Civil Code which did not become effective after fifteen days from its publication in the Official Gazette but "one year after such publication." The general rule did not apply because it was "otherwise provided. " It is not correct to say that under the disputed clause publication may be dispensed with altogether. The reason. is that such omission would offend due process insofar as it would deny the public knowledge of the laws that are supposed to govern the legislature could validly provide that a law e effective immediately upon its approval notwithstanding the lack of publication (or after an unreasonably short period after publication), it is not unlikely that persons not aware of it would be prejudiced as a result and they would be so not because of a failure to comply with but simply because they did not know of its existence, Significantly, this is not true only of penal laws as is commonly supposed. One can think of many non-penal measures, like a law on prescription, which must also be communicated to the persons they may affect before they can begin to operate. “ (Tanada v. Tuvera) III. PROCEDURAL ASPECT: (proper method) theirs a law and it is enforced correctly. a. Judicial Proceedings As applied to a judicial proceeding, however, it may be laid down with certainty that the requirement of due process is satisfied if the following conditions are present, namely; (1) There must be a court or tribunal clothed with judicial power to hear and determine the matter before it; (2) jurisdiction must be lawfully acquired over the person of the defendant or over the property which is the subject of the proceeding; (3) the defendant must be given an opportunity to be heard; and (4) judgment must be rendered upon lawful hearing.

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2. Void-for-vagueness – “The void-for-vagueness doctrine states that "a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily 13 guess at its meaning and differ as to its application, violates the first essential of due process of law." The overbreadth doctrine, on the other hand decrees that "a governmental purpose may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms." (Estrada v. Sandiganbayan)

Room 409 Constitutional Law II Notes based on the Outline and Lecture of Atty. Joan S. Largo Subject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino

(Banco Espanol v Palanca) Note: congress decides as to what court should hear the case Simply stated: 1. Jurisdiction over the subject matter : authority to hear and decide the case Acquired by filing the case 2. Jurisdiction over the person Issue summon, informing defendant about the case. The moment he receives it, court acquires jurisdiction over the person. EXCEPTION: if non-resident: publish and send to his last known address NOTE: CRIMINAL: Importance of Warrant of Arrest CIVIL: Inform through notice 3. Notice and OPPORTUNITY to be heard -all that it grants is opportunity and not that you must be heard - if after receiving the summon he does not answer then he loses his opportunity to be heard 4. Judgment after hearing NOTE: Along with the above mentioned requirements is that court should be IMPARTIAL and APPEAR TO BE IMPARTIAL (NEUTRALITY OF THE JUDGE) b. Administrative Proceedings  (1)The first of these rights is the right to a hearing, which includes the right of the party interested or affected to present his own case and submit evidence in support thereof. (2) Not only must the party be given an opportunity to present his case and to adduce evidence tending to establish the rights which he asserts but the tribunal must consider the evidence presented. (3) "While the duty to deliberate does not impose the obligation to decide right, it does imply a necessity which cannot be disregarded, namely, that of having something to support it is a nullity, a place when directly attached." (4) Not only must there be some evidence to support a finding or conclusion (5) The decision must be rendered on the evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected. (6) The Court of Industrial Relations or any of its judges, therefore, must act on its or his own independent consideration of the law and facts of the controversy, and not simply accept the views of a subordinate in arriving at a decision. (7) The Court of Industrial Relations should, in all controversial questions, render its decision in such a manner that the parties to the proceeding can know the various issues involved, and the reasons for the decision rendered. The performance of this duty is inseparable from the authority conferred upon it. (Ang Tibay v. CIR) Note: In administrative proceedings the evidence must be substantial.

c. Academic due process  “But, to repeat, the imposition of disciplinary sanctions requires observance of procedural due process. And it bears stressing that due process in disciplinary cases involving students does not entail proceedings and hearings similar to those prescribed for actions and proceedings in courts of justice. The proceedings in student discipline cases may be summary; and cross-examination is not, 'contrary to petitioners' view, an essential part thereof. There are withal minimum standards which must be met to satisfy the demands of procedural due process; and these are, that (1) the students must be informed in writing of the nature and cause of any accusation against them; (2) they shag have the right to answer the charges against them, with the assistance of counsel, if desired; (3) they shall be informed of the evidence against them; (4) they shall have the right to adduce evidence in their own behalf; and (5) the evidence must be duly considered by the investigating committee or official designated by the school authorities to hear and decide the case.” (GUZMAN v NATIONAL UNIVERSITY)

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What is substantial evidence?  It means such relevant evidence as a reasonable mind accept as adequate to support a conclusion." (ANG TIBAY V CIR)

Room 409 Constitutional Law II Notes based on the Outline and Lecture of Atty. Joan S. Largo Subject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino

SIMPLY STATED 1. Publication : information dissemination (memo’s, university manual) 2. Reasonable : there is some causal link between the rules and educational objectives of the school sought to be achieved. 3. Just, authorized or recognized causes 4. Appropriate procedure 5. Appropriate penalty Note: penalty imposed should that have been published -when you commit MINOR offenses in the presence of school officials or academic personnel, they can impose penalties right away -SERIOUS OFFENSES: there must be a complaint first OTHER INFRACTIONS RECOGNIZED IN COURT DECISIONS: *Attendance in hazing activities even if students did not lay hands on neophytes *Deliberately withholding material information in a scholarship application *Even if offense done outside the school if it affects the suitability of the students, the school has jurisdiction to apply the penalty. *You retain your freedom of expression even if you’re inside the school but it exercise of such must be balanced with school rules and regulations -permit must be sought ( fixing the time and place of assembly) -must avoid disruption of classes or stoppage of work Article XIV sec 3 (2) Article 218 FAMILY CODE OF THE PHILIPPINES Article 2180 CIVIL CODE BASIS: constitution, jurisprudence and contract of the school and students Must parents be informed of charges against their children? -School not duty bound to do so. What is appropriate penalty? There must be proportionality between offense committed and the sanction imposed. Penalties of serious infractions: *exclusion: your school drops your name from their list of students *expulsion: you cannot anymore enroll in any school

4.

EQUAL PROTECTION OF LAWS

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Why? “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.” (PHIL. JUDGES ASSOC. v PRADO)

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Why is it made separate? “It has nonetheless been embodied in a separate clause in Article III Sec. 1., of the Constitution to provide for a more, specific guaranty against any form of undue favoritism or hostility from the government. Arbitrariness in general may be challenged on the basis of the due process clause. But if the particular act assailed partakes of an unwarranted partiality or prejudice, the sharper weapon to cut it down is the equal protection clause.” (PHIL. JUDGES ASSOC. v PRADO)

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What is equal protection of laws? “According to a long line of decisions, equal protection simply requires that all persons or things similarly 12 situated should be treated alike, both as to rights conferred and responsibilities imposed, Similar

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a. Guaranty of equal protection, Generally  Is it part of due process? YES

Room 409 Constitutional Law II Notes based on the Outline and Lecture of Atty. Joan S. Largo Subject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino

subjects, in other words, should not be treated differently, so as to give undue favor to some and unjustly discriminate against others.”(PHIL. JUDGES ASSOC. v PRADO) 

Does it require universal application of the laws? “The equal protection clause does not require the universal application of the laws on all persons or things without distinction. This might in fact sometimes result in unequal protection, as where, for example, a law prohibiting mature books to all persons, regardless of age, would benefit the morals of the youth but violate the liberty of adults. What the clause requires is equality among equals as determined according to a valid classification. By classification is meant the grouping of persons or things similar to 13 each other in certain particulars and different from all others in these same particulars.” (PHIL. JUDGES ASSOC. v PRADO)

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What requires a valid classification? The “equal protection clause” of the 1987 Constitution permits a valid classification under the following conditions: 1. The classification must rest on substantial distinctions; 2. The classification must be germane to the purpose of the law; 3. The classification must not be limited to existing conditions only; and 4. The classification must apply equally to all members of the same class. (DE GUZMAN v COMELEC) Note: substantial distinction must be essential to the attainment of the objective. //zoila 

(2)

RIGHT AGAINST UNREASONABLE SEARCHES AND SEIZURES

A. In the absence of a Constitution, can the people assert their rights under Article III (Bill of Rights)?  “During the interregnum, the directives and orders of the revolutionary government were the supreme law because no constitution limited the extent and scope of such directives and orders. With the abrogation of the 1973 Constitution by the successful revolution, there was no municipal law higher than the directives and orders of the revolutionary government. Thus, during the interregnum, a person could not invoke any exclusionary right under a Bill of Rights because there was neither a constitution nor a Bill of Rights during the interregnum. Xxx We hold that the Bill of Rights under the 1973 Constitution was not operative during the interregnum. However, we rule that the protection accorded to individuals under the International Covenant on Civil and Political Rights and the UN Declaration of Human Rights remained in effect during the interregnum.” (Republic v. Sandiganbayan) Note: In the absence of a Constitution which grants the people their rights against encroachment and abuse by the government, they cannot invoke its protection under the Constitution BUT they can invoke such right under international agreements and treaties such as the ICCPR and UNDHR, for they form generally accepted principles of international law and customary international law which is deemed binding upon every State. B. With regards the word INVIOLABLE, does this mean that the right granted under Art. III, Sec. 2 is absolute?  Yes, the right is absolute as to UNREASONABLE searches and seizures. Note: This means that a person can be searched and certain items can be seized if the search and seizure is REASONABLE. C. Who are entitled to the rights against unreasonable search and seizures?  “Available to ALL persons, including aliens. Artificial persons are also entitled to the guarantee. (Moncada v. People’s Court)

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Art. III, Section 2, Consti. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.

Room 409 Constitutional Law II Notes based on the Outline and Lecture of Atty. Joan S. Largo Subject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino

Note: The right is personal; it can be invoked only by the person entitled to it. (Stonehill v. Diokno) D. To whom is the right directed against?  “In the instant case, the memorandum receipt and mission order were discovered by accused-appellant’s father-in-law Alipio Eusebio, a private citizen. Certainly, a search warrant is dispensable”. (People v. Mendoza) Note: The right is directed against the government its branches, departments and instrumentalities. E. Definitions  Section 1. Search warrant defined. – A search warrant is an order in writing issued in the name of the People of the Philippines, signed by a judge and directed to a peace officer, commanding him to search for personal property described therein and bring it before the court.(Sec. 1, Rule 126 of the RRC)  Section 1. Definition of arrest. – Arrest is the taking of a person into custody in order that he may be bound to answer for the commission of an offense.(Sec. 1, Rule 113 of the RRC) F. How can there be a REASONABLE search and seizure?  General Rule: a search or a seizure is reasonable upon presentation of a VALID WARRANT. Exceptions: 1. valid warrantless arrest 3. valid warrantless searches (Manalili v. CA) G. What are the requisites for a VALID WARRANT?  no search warrant or warrant of arrest shall issue except upon: 1. probable cause 2. probable cause to be determined personally by the judge 3. after examination under oath or affirmation of the complainant and the witnesses he may produce, and 4. particularly describing the place to be searched and the persons or things to be seized. H. Probable Cause COMPLAINT Pongot v. Bernabe

With probable cause information

Counter affidavit

proper court

Prosecutor reply affidavit

resolution

Clarificatory hearing dismissed

a. What is the difference between PROBABLE CAUSE determined by a PROSECUTOR and PROBABLE CAUSE determined by a JUDGE?  The determination of probable cause by the prosecutor is for a purpose different from that which is to be made by the judge. Whether there is reasonable ground to believe that the accused is guilty of the offense charged and should be held for trial is what the prosecutor passes upon. The judge, on the other hand, determines whether a warrant of arrest should be issued against the accused, i.e., whether there is a necessity for placing him under immediate custody in order not to frustrate the ends of justice. Thus, even if both should base their findings on one and the same proceeding or evidence, there should be no confusion as to their distinct objectives.(Ho v. People, cited in Abdula v. Guiani) b. Definition  “Probable cause is defined as referring to such facts and circumstances antecedent to the issuance of the warrant that in themselves are sufficient to induce a cautious person to rely on them, and to act in pursuance thereof.” (People v. CA)  “In turn, probable cause for the issuance of a warrant of arrest has been defined as such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed by the person sought to be arrested.” (Agcaoli v. Molina)

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without probable cause

Room 409 Constitutional Law II Notes based on the Outline and Lecture of Atty. Joan S. Largo Subject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino

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I.

“xxx to establish the existence of probable cause sufficient to justify the issuance of a search warrant, the applicant must show “facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place sought to be searched.” (People v. Estrada)  “xxx of probable cause, for the same presupposes the introduction of competent proof that the party against whom it is sought has performed particular acts, or committed specific omissions, violating a given provision of our criminal laws.” (Stonehill v. Diokno) Probable cause to be determined personally by the judge. a. Warrant of arrest- there is personal determination if the judge has personally evaluated the supporting documents or affidavits and is PERSONALLY SATISFIED that probable cause exist. b. Search Warrant- The judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath, the complainant and the witnesses he may produce on facts personally known to them and attach to the record their sworn statements, together with the affidavits submitted. (Sec. 5, Rule 126 of the RRC); disregard the prosecutor’s findings. Note: The reason for the distinction is in SW there is still no tangible document to review. The prosecution is still building the case and the things that will be seized will become the evidence against the accused BUT in WA there is already an established case. c. Who can issue a warrant of arrest?  “xxx only judges are vested with authority to issue warrants for the arrest of persons, including ALIENS. Even if it is assumed that the commissioner of the CID is authorized to issue a warrant of arrest, this is limited only to those cases where a final order of deportation had already been issued by the BOC, and only for the purpose of implementing such order.” (Jackson v. Macalino) Note: the warrant of arrest contemplated in Art. III, Sec. 2 of the Constitution refers to an arrest to bring the accused to answer in court.

J. After examination under oath or affirmation of the complainant and the witnesses he may produce.  “The true test of sufficiency of an affidavit to warrant issuance of a search warrant is whether it has been drawn in such a manner that perjury could be charged thereon and affiant be held liable for damages caused” (Alvarez v. CFI); otherwise it is a HEARSAY evidence.

b. Particularity in Warrant of Arrest “John Doe’ Warrants. It follows, on principle, from what has already been said regarding the essential requirements of warrants for the apprehension of persons accused, and about blank warrants, that a warrant for the apprehension of a person whose true name is unknown, by the name of “John Doe” or “Richard Roe,” “whose other or true name in unknown,” is void, without other and further descriptions of the person to be apprehended, and such warrant will not justify the officer in acting under it. Such a warrant must, in addition, contain the best
herefore
n personae possible to be obtained of the person or persons to be apprehended, and this description must be sufficient to indicate clearly the proper person or persons upon whom the warrant is to be served; and should state his personal appearance and peculiarities, give his occupation and place of residence, and any other circumstances by means of which he can be identified.” (People v. Veloso) Note: for a warrant of arrest to pass the test of particularity it should state: 1. Name and description of the accused 2. Desriptio personae 3. Assumed appellation (John Doe, Richard Roe, Jane Doe) c. 

Particularity in Search Warrant As to place to be searched: “This Court has held that the applicant should particularly describe the place to be searched and the person or things to be seized, wherever and whenever it is feasible. In the present case, it must be noted

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K. Particularity of Description a. Rationale  “To uphold the validity of the warrants in question would be to wipe out completely one of the most fundamental rights guaranteed in our Constitution, for it would place the sanctity of the domicile and the privacy of communication and correspondence at the mercy of the whims caprice or passion of peace officers.” (Stonehill v. Diokno) Note: this will prevent the police officer’s discretion on who to arrest and what to seize.

Room 409 Constitutional Law II Notes based on the Outline and Lecture of Atty. Joan S. Largo Subject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino

that the application for search warrant was accompanied by a sketch of the compound at 516 San Jose de la Montana St., Mabolo, Cebu City. The sketch indicated the 2-storey residential house of private respondent with a large “X” enclosed in a square. Within the same compound are residences of other people, workshops, offices, factories and warehouse. With this sketch as the guide, it could have been very easy to describe the residential house of private respondent with sufficient particularity so as to segregate it from the other buildings or structures inside the same compound. But the search warrant merely indicated the address of the compound which is 516 San Jose de la Montana St., Mabolo, Cebu City. This description of the place to be searched is too general and does not pinpoint the specific house of private respondent. Thus, the inadequacy of the description of the residence of private respondent sought to be searched has characterized the questioned search warrant as a general warrant, which is violative of the constitutional requirement. (People v. Estrada) In the instant case there is no ambiguity at all in the warrant. The ambiguity lies outside the instrument, arising from the absence of a meeting of minds as to the place to be searched between the applicants for the warrant and the Judge issuing the same; and what was done was to substitute for the place that the Judge had written down in the warrant, the premises that the executing officers had in their mind. This should not have been done. It is neither fair nor licit to allow police officers to search a place different from that stated in the warrant on the claim that the place actually searched although not that specified in the warrant is exactly what they had in view when they applied for the warrant and had demarcated in their supporting evidence. What is material in determining the validity of a search is the place stated in the warrant itself, not what the applicants had in their thoughts, or had represented in the proofs they submitted to the court issuing the warrant. Indeed, following the officers’ theory, in the context of the facts of this case, all four (4) apartment units at the rear of Abigail’s Variety Store would have been fair game for a search. The place to be searched, as set out in the warrant, cannot be amplified or modified by the officers’ own personal knowledge of the premises, or the evidence they adduced in support of their application for the warrant. Such a change is proscribed by the Constitution which requires inter alia the search warrant to particularly describe the place to be searched as well as the persons or things to be seized. It would concede to police officers the power of choosing the place to be searched, even if it not be that delineated in the warrant. It would open wide the door to abuse of the search process, and grant to officers executing a search warrant that discretion which the Constitution has precisely removed from them. The particularization of the description of the place to be searched may properly be done only by the Judge, and only in the warrant itself; it cannot be left to the discretion of the police officers conducting the search.” (People v. CA)

As to things to be searched  “xxx provide that the affidavit to be presented, which shall serve as the basis for determining whether probable cause exists and whether the warrant should be issued, must contain a particular description of the place to be searched and the person or thing to be seized. These provisions are mandatory and must be strictly complied with (Munch vs. U. S., 24 Fed. [2d], 518; U. S. vs. Boyd, 1 Fed. [2d], 1019; U. S. vs. Carlson, 292 Fed., 463; U. S. vs. Borkowski, 268 Fed., 408; In re Tri-State Coal & Coke Co., 253 Fed., 605; People vs. Mayen, 188 Cal., 237; People vs. Kahn, 256 Ill. App., 415); but where, by the nature of the goods to be seized, their description must be rather general, it is not required that a technical description be given, as this would mean that no warrant could issue (People vs. Rubio, 57 Phil., 284; People vs. Kahn, supra). The only description of the articles given in the affidavit presented to the judge was as follows: “that there are being kept in said premises books, documents, receipts, lists, chits and other papers used by him in connection with his activities as money-lender, charging a usurious rate of interest, in violation of the law.” Taking into consideration the nature of the articles so described, it is clear that no other more adequate and detailed description could have been given, particularly because it is difficult to give a particular description of the contents thereof. The description so made substantially complies with the legal provisions because the officer of the law who executed the warrant was thereby placed in a position enabling him to identify the articles, which he did.” (Alvarez v. CFI) 

“The things to be seized must be described with particularity. Technical precision of description is not required. It is only necessary that there be reasonable particularity and certainty as to the identity of the property to be searched for and seized, so that the warrant shall not be a mere roving commission. Indeed, the law does not require that the things to be seized must be described in precise and minute detail as to leave no room for doubt on the part of the searching

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Room 409 Constitutional Law II Notes based on the Outline and Lecture of Atty. Joan S. Largo Subject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino

authorities. If this were the rule, it would be virtually impossible for the applicants to obtain a warrant as they would not know exactly what kind of things to look for. Any description of the place or thing to be searched that will enable the officer making the search with reasonable certainty to locate such place or thing is sufficient. However, the requirement that search warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant. Thus, the specific property to be searched for should be so particularly described as to preclude any possibility of seizing any other property.” (Vallejo v. CA) As to the offense A search warrant shall not issue except upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witness he may produce, and particularly describing the place to be searched and the things to be seized which may be anywhere in the Philippines.(Sec. 4, Rule 126 of the RRC)  “The questioned warrant in this case is a scatter-shot warrant for having been issued for more than one offense – Falsification of Land Titles under Article 171 and Article 213 of the Revised Penal Code, and violation of Rep. Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act. A warrant must be issued upon probable cause in connection with one specific offense. In fact, a careful perusal of the application for the warrant shows that the applicant did not allege any specific act performed by the petitioner constituting a violation of any of the aforementioned offenses.” (People v. Vallejo) 

Two points must be stressed in connection with this constitutional mandate, namely: (1) that no warrant shall issue but upon probable cause, to be determined by the judge in the manner set forth in said provision; and (2) that the warrant shall particularly describe the things to be seized. None of these requirements has been complied with in the contested warrants. Indeed, the same were issued upon applications stating that the natural and juridical person therein named had committed a “violation of Central Ban Laws, Tariff and Customs Laws, Internal Revenue (Code) and Revised Penal Code.” In other words, no specific offense had been alleged in said applications. The averments thereof with respect to the offense committed were abstract. As a consequence, it was impossible for the judges who issued the warrants to have found the existence of probable cause, for the same presupposes the introduction of competent proof that the party against whom it is sought has performed particular acts, or committed specific omissions, violating a given provision of our criminal laws. As a matter of fact, the applications involved in this case do not allege any specific acts performed by herein petitioners. It would be the legal heresy, of the highest order, to convict anybody of a “violation of Central Bank Laws, Tariff and Customs Laws, Internal Revenue (Code) and Revised Penal Code,” as alleged in the aforementioned applications without reference to any determinate provision of said laws. (Stonehill v. Diokno) Note: Particularity of Description aims to limit the discretion of the law enforcers on who to arrest and what items to be seized

e. Time of serving the Search warrant  Sec. 9. Time of making search. – The warrant must direct that it be served in the day time, unless the affidavit asserts that the property is on the person or in the place ordered to be searched, in which case a direction may be inserted that it be served at any time of the day or night. L. Valid Warrantless Arrest Sec. 5. Arrest without warrant; when lawful. – A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and I When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred

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d. Time of serving the Warrant of Arrest  Sec. 6. Time of making arrest. – An arrest may be made on any day and at any time of the day or night. (Sec. 6, Rule 113 of the RRC)

Room 409 Constitutional Law II Notes based on the Outline and Lecture of Atty. Joan S. Largo Subject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino

from one confinement to another. In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with section 7 of Rule 112. ( Sec. 5, Rule 113 of the RRC)

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Accused was searched and arrested while transporting prohibited drugs (hashish). A crime was actually being committed by the accused and he was caught in flagrante delicto. Thus, the search made upon his personal effects falls squarely under paragraph (1) of the foregoing provisions of law, which allow a 7 warrantless search incident to a lawful arrest. While it is true that the NARCOM officers were not armed with a search warrant when the search was made over the personal effects of accused, however, under the circumstances of the case, there was sufficient probable cause for said officers to believe that accused was then and there committing a crime. (People v.Malmstead)

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In the case at bar, there was no warrant of arrest or search warrant issued by a judge after personal determination by him of the existence of probable cause. Contrary to the averments of the government, the accused-appellant was not caught in flagrante nor was a crime about to be committed or had just been committed to justify the warrantless arrest allowed under Rule 113 of the Rules of Court. Even expediency could not be invoked to dispense with the obtention of the warrant as in the case of Roldan v. 24 Arca, for example. Here it was held that vessels and aircraft are subject to warrantless searches and seizures for violation of the customs law because these vehicles may be quickly moved out of the locality or jurisdiction before the warrant can be secured. The present case presented no such urgency. From the conflicting declarations of the PC witnesses, it is clear that they had at least two days within which they could have obtained a warrant to arrest and search Aminnudin who was coming to Iloilo on the M/V Wilcon 9. His name was known. The vehicle was Identified. The date of its arrival was certain. And from the information they had received, they could have persuaded a judge that there was probable cause, indeed, to justify the issuance of a warrant. Yet they did nothing. No effort was made to comply with the law. The Bill of Rights was ignored altogether because the PC lieutenant who was the head of the arresting team, had determined on his own authority that a “search warrant was not necessary.” Xxx In the case at bar, the accused-appellant was not, at the moment of his arrest, committing a crime nor was it shown that he was about to do so or that he had just done so. What he was doing was descending the gangplank of the M/V Wilcon 9 and there was no outward indication that called for his arrest. To all appearances, he was like any of the other passengers innocently disembarking from the vessel. It was only when the informer pointed to him as the carrier of the marijuana that he suddenly became suspect and so subject to apprehension. It was the furtive finger that triggered his arrest. The Identification by the

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Note: a – in flagrante delicto. Here two elements must concur: (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.(People v. Elamparo) Or (1) mens rea; (2) actus reus b – hot pursuit. [Note: time of arrest must be close to the time of commission; there should be no let up/ interruption from the time of the commission] c – escapee  “None of these circumstances were present when the accused was arrested. The accused was merely walking from the Maria Orosa Apartment and was about to enter the parked BMW car when the police officers arrested and frisked him and searched his car. The accused was not committing any visible offense at the time of his arrest. Neither was there an indication that he was about to commit a crime or that he had just committed an offense. The unlicensed AMT Cal.380 9mm Automatic Back-up Pistol that the accused had in his possession was concealed inside the right front pocket of his pants. And the handgun was bantam and slim in size that it would not give an outward indication of a concealed gun if placed inside the pant’s side pocket as was done by the accused. The arresting officers had no information and knowledge that the accused was carrying an unlicensed handgun, nor did they see him in possession thereof immediately prior to his arrest. Xxx Clearly therefore, the warrantless arrest of the accused and the search of his person and the car were without probable cause and could not be licit. The arrest of the accused did not fall under any of the exception to the requirements of warrantless arrests, (Sec. 5, Rule 113, Rules of Court) and is therefore, unlawful and derogatory of his constitutional right of liberty.” (People v. Laguio)

Room 409 Constitutional Law II Notes based on the Outline and Lecture of Atty. Joan S. Largo Subject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino

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informer was the probable cause as determined by the officers (and not a judge) that authorized them to pounce upon Aminnudin and immediately arrest him. (People v. Aminudin) It must be recalled that del Rosario was arrested by SPO4 De Leon during the police raid at the place of 44 “Jun” Marquez at Brgy. Dicarma on 14 May 1996. In People vs. Sucro we held that when a police officer sees the offense, although at a distance, or hears the disturbances created thereby, and proceeds at once to the scene thereof, he may effect an arrest without a warrant on the basis of Sec. 5, par. (a), Rule 113, since the offense is deemed committed in his presence or within his view. In essence, Sec. 5, par. (a), Rule 113, requires that the accused be caught in flagrante delicto or caught immediately after the consummation of the act. The arrest of del Rosario is obviously outside the purview of the aforequoted rule since he was arrested on the day following the commission of the robbery with homicide. On the other hand, Sec. 5, par. (b), Rule 113, necessitates two (2) stringent requirements before a warrantless arrest can be effected: (1) an offense has just been committed; and, (2) the person making the arrest has personal knowledge of facts indicating that the person to be arrested had committed it. Hence, there must be a large measure of immediacy between the time the offense was committed and the time of the arrest, and if there was an appreciable lapse of time between the arrest and the commission of the crime, a warrant of arrest must be secured. Aside from the sense of immediacy, it is also mandatory that the person making the arrest must have personal knowledge of certain facts 45 indicating that the person to be taken into custody has committed the crime. Again, the arrest of del Rosario does not comply with these requirements since, as earlier explained, the arrest came a day after the consummation of the crime and not immediately thereafter. As such, the crime had not been “just committed” at the time the accused was arrested. Likewise, the arresting officers had no personal knowledge of facts indicating that the person to be arrested had committed the offense since they were not present and were not actual eyewitnesses to the crime, and they became aware of his identity as the driver of the getaway tricycle only during the custodial investigation. (People v. Del Rosario)

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As to Rolando Dural, it clearly appears that he was not arrested while in the act of shooting the two (2) CAPCOM soldiers aforementioned. Nor was he arrested just after the commission of the said offense for his arrest came a day after the said shooting incident. Seemingly, his arrest without warrant is unjustified. However, Rolando Dural was arrested for being a member of the New Peoples Army (NPA), an outlawed subversive organization. Subversion being a continuing offense, the arrest of Rolando Dural without warrant is justified as it can be said that he was committing an offense when arrested. (Umil v. Ramos)

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Paragraph (a) requires that the person be arrested (i) after he has committed or while he is actually committing or is at least attempting to commit an offense, (ii) in the presence of the arresting officer or 29 private person. Both elements concurred here, as it has been established that petitioner’s vehicle

M. Warrantless Search b. Incident to a lawful arrest  The law requires that there be first a lawful arrest before a search can be made; the process cannot be reversed. (People v. Laguio) 

In a search incidental to a lawful arrest, as the precedent arrest determines the validity of the incidental search, the legality of the arrest is questioned in a large majority of these cases, e.g., whether an arrest 36 was merely used as a pretext for conducting a search. In this instance, the law requires that there first 37 be a lawful arrest before a search can be made the process cannot be reversed. At bottom, assuming a valid arrest, the arresting officer may search the person of the arrestee and the area within which the latter may reach for a weapon or for evidence to destroy, and seize any money or property found which was used in the commission of the crime, or the fruit of the crime, or that which may be used as evidence, 38 or which might furnish the arrestee with the means of escaping or committing violence. Here, there could have been no valid in flagrante delicto or hot pursuit arrest preceding the search in light of the lack of personal knowledge on the part of Yu, the arresting officer, or an overt physical act, on the

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figured in a hit and run � an offense committed in the “presence” of Manarang, a private person, who then sought to arrest petitioner. It must be stressed at this point that “presence” does not only require that the arresting person sees the offense, but also when he “hears the disturbance created thereby AND proceeds at once to the scene.” (Padilla v. CA) Note: use not only the visual but also the auditory (hearing) sense. [according to Santi, and BINGO!]

Room 409 Constitutional Law II Notes based on the Outline and Lecture of Atty. Joan S. Largo Subject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino

part of petitioner, indicating that a crime had just been committed, was being committed or was going to be committed. Having thus shown the invalidity of the warrantless arrest in this case, plainly, the search conducted on petitioner could not have been one incidental to a lawful arrest. (Malacat v. CA) Note: The search will be lawful if the arrest will fall under any of the circumstance provided in Section 5, Rule 113. Note: Permissible area of search: only the area within which the person arrested (1)could reach for weapon; (2)reach for evidence to destroy it. c. Stop and frisk Note: The right of the police officer to: 1. Stop the citizen on the street on genuine reason, not mere suspicion 2. Interrogate him 3. Pat for weapons 4. Search is limited to search of outer clothing 5. To ensure safety of police officer and others “We disagree with petitioner and hold that the search was valid, being akin to a stop-and-frisk. In the landmark case of Terry vs. Ohio, a stop-and-frisk was defined as the vernacular designation of the right of a police officer to stop a citizen on the street, interrogate him, and pat him for weapon(s):. . . (W)here a police officer observes an unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identified himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment, and any weapon seized may properly be introduced in evidence against the person from whom they were taken.” (Manalili v. CA)

Other notable points of Terry are that while probable cause is not required to conduct a “stop and frisk,” it nevertheless holds that mere suspicion or a hunch will not validate a “stop and frisk.” A genuine reason must exist, in light of the police officer’s experience and surrounding conditions, to warrant the 41 belief that the person detained has weapons concealed about him. Finally, a “stop-and-frisk” serves a two-fold interest: (1) the general interest of effective crime prevention and detection, which underlies the recognition that a police officer may, under appropriate circumstances and in an appropriate manner, approach a person for purposes of investigating possible criminal behavior even without probable cause; and (2) the more pressing interest of safety and self-preservation which permit the police officer to take steps to assure himself that the person with whom he deals is not armed with a deadly weapon that could unexpectedly and fatally be used against the police officer. Here, there are at least three (3) reasons why the “stop-and-frisk” was invalid: First, we harbor grave doubts as to Yu’s claim that petitioner was a member of the group which attempted to bomb Plaza Miranda two days earlier. This claim is neither supported by any police report or record nor corroborated by any other police officer who allegedly chased that group. Aside from impairing Yu’s credibility as a witness, this likewise diminishes the probability that a genuine reason existed so as to arrest and search petitioner. If only to further tarnish the credibility of Yu’s testimony, contrary to his claim that petitioner and his companions had to be chased before being apprehended, the affidavit of arrest (Exh. “A”) expressly declares otherwise, i.e., upon arrival of five (5) other police officers, petitioner and his companions were “immediately collared.” Second, there was nothing in petitioner’s behavior or conduct which could have reasonably elicited even mere suspicion other than that his eyes were “moving very fast” � an observation which leaves us incredulous since Yu and his teammates were nowhere near petitioner and it was already 6:30 p.m., thus presumably dusk. Petitioner and his companions were merely standing at the corner and were not creating any commotion or trouble, as Yu explicitly declared on cross-examination: Q And what were they doing? A They were merely standing.

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Room 409 Constitutional Law II Notes based on the Outline and Lecture of Atty. Joan S. Largo Subject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino

Q You are sure of that? A Yes, sir. Q And when you saw them standing, there were nothing or they did not create any commotion. A None, sir. Q Neither did you see them create commotion? 42 A None, sir. Third, there was at all no ground, probable or otherwise, to believe that petitioner was armed with a deadly weapon. None was visible to Yu, for as he admitted, the alleged grenade was “discovered” “inside the front waistline” of petitioner, and from all indications as to the distance between Yu and petitioner, any telltale bulge, assuming that petitioner was indeed hiding a grenade, could not have been visible to Yu. In fact, as noted by the trial court: When the policemen approached the accused and his companions, they were not yet aware that a handgrenade was tucked inside his waistline. They did not see any bulging object in [sic] his person (Malacat v. CA) d. Search of a moving vehicle  “Another justification is a search of a moving vehicle. In connection therewith, a warrantless search is constitutionally permissible when, as in this case, the officers conducting the search have reasonable or probable cause to believe, before the search, that either the motorist is a law-offender (like herein petitioner with respect to the hit and run) or the contents or cargo of the vehicle are or have been instruments or the subject matter or the proceeds of some criminal offense.” (Padilla v. CA) 

e. Search under customs law  “The Code authorizes persons having police authority under Section 2203 of the Tariff and Customs Code to enter, pass through or search any land, inclosure, warehouse, store or building, not being a dwelling house; and also to inspect, search and examine any vessel or aircraft and any trunk, package, or envelope or any person on board, or to stop and search and examine any vehicle, beast or person suspected of holding or conveying any dutiable or prohibited article introduced into the Philippines contrary to law, without mentioning the need of a search warrant in said cases. But in the search of a dwelling house, the Code provides that said “dwelling house may be entered and searched only upon warrant issued by a judge or justice of the peace. . . .” It is our considered view,
herefore, that except in the case of the search of a dwelling house, persons exercising police authority under the customs law may effect search and seizure without a search warrant in the enforcement of customs laws.” (Papa v. Mago) 

Here, it should be noted that during the incident in question, the special mission of the PAF operatives was to conduct a surveillance operation to verify reports of drug trafficking and smuggling by certain PAL personnel in the vicinity of the airport. In other words, the search made by the PAF team on petitioner and his co-accused was in the nature of a customs search. As such, the team properly effected the search and seizure without a search warrant since it exercised police authority under the customs law. (Salvador v. People)

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Here, the search involved a moving vehicle, an instance where a warrantless search and seizure may be conducted by peace officers. The only issue we should determine is whether there was probable cause to justify such warrantless search and seizure. We recall that at around 2:30 p.m. of September 6, 1998, a confidential informer disclosed to SPO2 Ngina that a passenger jeepney with Plate No. AYB 117 loaded with Benguet pine lumber was at Km. 96, Atok, Benguet. The lumber was covered with assorted vegetables. A PNP roadblock was then placed in Acop, Tublay, Benguet to intercept the jeepney. At around 4:00 p.m. of that same day, the police spotted the vehicle. They flagged it down but it did not stop, forcing the police to chase it until it reached Shilan, La Trinidad. A search of the vehicle disclosed several pieces of Benguet pine lumber. Petitioners could not produce the required DENR permit to cut and transport the same. 10 In People v. Vinecarao, we ruled that where a vehicle sped away after noticing a checkpoint and even after having been flagged down by police officers, in an apparent attempt to dissuade the police from proceeding with their inspection, there exists probable cause to justify a reasonable belief on the part of the law enforcers that the persons on board said vehicle were officers of the law or that the vehicle contained objects which were instruments of some offense. This ruling squarely applies to the present case. (Epie v. Ulat-Marredo)

Room 409 Constitutional Law II Notes based on the Outline and Lecture of Atty. Joan S. Largo Subject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino

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The seizure of evidence in “plain view” applies only where the police officer is not searching for evidence against the accused, but inadvertently comes across an incriminating object. Clearly, their discovery of the cannabis plants was not inadvertent. We also note the testimony of SPO2 Tipay that upon arriving at the area, they first had to “look around the area” before they could spot the illegal plants. Patently, the seized marijuana plants were not “immediately apparent” and a “further search” was needed. In sum, the marijuana plants in question were not in “plain view” or “open to eye and hand.” The “plain view” doctrine, thus, cannot be made to apply.(People v. Valdez) Note: even if the item was inside a container but based on your experience, its configuration suggest that it is an evidence against the crime it can be considered as evidence in plain view because it is “open to the eye or to the hand”.

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The evidence clearly shows that on the basis of an intelligence information that a carnapped vehicle was driven by ABDUL, who was also a suspect of drug pushing, the members of the CIDG of Laguna went 25 around looking for the carnapped car. They spotted the suspected carnapped car, which was indeed driven by ABDUL. While ABDUL was fumbling about in his clutch bag for the registration papers of the 26 car the CIDG agents saw four transparent sachets of shabu. These sachets of shabu were therefore in “plain view” of the law enforcers. Under the “plain view” doctrine, unlawful objects within the plain view of an officer who has the right to be in the position to have that view are subject to seizure and may be presented in evidence. Nonetheless, the seizure of evidence in plain view must comply with the following requirements: (a) a prior valid intrusion in which the police are legally present in the pursuit of their official duties; (b) the evidence was inadvertently discovered by the police who had the right to be where they are; (c) the evidence must be 27 immediately apparent; and (d) the plain view justified mere seizure of evidence without further search. We are convinced beyond any shadow of doubt under the circumstances above discussed that all the elements of seizure in plain view exist in the case at bar. Thus, the warrantless search and seizure conducted on ABDUL, as well as his warrantless arrest, did not transgress his constitutional rights. (People v. Macalaba)

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“It is clear that an object is in plain view if the object itself is plainly exposed to sight. The difficulty arises when the object is inside a closed container. Where the object seized was inside a closed package, the object itself is not in plain view and therefore cannot be seized without a warrant. However, if the package proclaims its contents, whether by its distinctive configuration, its transparency, or if its contents are 127 In other words, if the obvious to an observer, then the contents are in plain view and may be seized. package is such that an experienced observer could infer from its appearance that it contains the 128 It must be immediately apparent to the police prohibited article, then the article is deemed in plain view. that the items that they observe may be evidence of a crime, contraband or otherwise subject to seizure.” (People v. Doria)

g. Waiver or consent Elements: 1. It must appear that the right exists 2. The accused had knowledge(actual or constructive) of the existence of such right 3. The person has actual intention to relinquish such right

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f. Seizure in plain view Elements: (a). a prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties; (b). the evidence was inadvertently discovered by the police who had the right to be where they are; I. the evidence must be immediately apparent, and (d). “plain view” justified mere seizure of evidence without further search.  “The seizure of the Smith & Wesson revolver and an M-16 rifle magazine was justified for they came within “plain view” of the policemen who inadvertently discovered the revolver and magazine tucked in petitioner’s waist and back pocket respectively, when he raised his hands after alighting from his Pajero. The same justification applies to the confiscation of the M-16 armalite rifle which was immediately apparent to the policemen as they took a casual glance at the Pajero and saw said rifle lying horizontally near the driver’s seat.” (Padilla v. CA)

Room 409 Constitutional Law II Notes based on the Outline and Lecture of Atty. Joan S. Largo Subject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino

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“It is fundamental, however, that to constitute a waiver, it must first appear that the right exists; secondly, that the person involved had knowledge, actual or constructive, of the existence of such a right; and lastly, that said person had an actual intention to relinquish the right. CHUA never exhibited that he knew, actually or constructively of his right against unreasonable searches or that he intentionally conceded the same.” (People v. Chua Ho San) With respect to the Berreta pistol and a black bag containing assorted magazines, petitioner voluntarily 55 surrendered them to the police. This latter gesture of petitioner indicated a waiver of his right against 56 the alleged search and seizure , and that his failure to quash the information estopped him from assailing any purported defect. (Padilla v. CA)

h. Routine Airport Security Procedure  “This is not the first time we recognize a search conducted pursuant to routine airport security procedure as an exception to the proscription against warrantless searches.xxx “Persons may lose the protection of the search and seizure clause by exposure of their persons or property to the public in a manner reflecting a lack of subjective expectation of privacy, which expectation society is prepared to recognize as reasonable. Such recognition is implicit in airport security procedures. With increased concern over airplane hijacking and terrorism has come increased security at the nation’s airports. Passengers attempting to board an aircraft routinely pass through metal detectors; their carry-on baggage as well as checked luggage are routinely subjected to x-ray scans. Should these procedures suggest the presence of suspicious objects, physical searches are conducted to determine what the objects are. There is little question that such searches are reasonable, given their minimal intrusiveness, the gravity of the safety interests involved, and the reduced privacy expectations associated with airline travel. Indeed, travelers are often notified through airport public address systems, signs and notices in their airline tickets that they are subject to search and, if any prohibited materials or substances are found, such would be subject to seizure. These announcements place passengers on notice that ordinary constitutional protections against warrantless searches and seizures do not apply to routine airport procedures.”” (People v. Suzuki) 

“The methamphetamine hydrochloride seized from her during the routine frisk at the airport was acquired legitimately pursuant to airport security procedures”. (People v. Leila Johnson)

i. 

Checkpoint searches “This Court has ruled that not all checkpoints are illegal. Those which are warranted by the exigencies of public order and are conducted in a way least intrusive to motorists are allowed. For, admittedly, routine checkpoints do intrude, to a certain extent, on motorists’ right to “free passage without interruption,” but it cannot be denied that, as a rule, it involves only a brief detention of travelers during which the vehicle’s occupants are required to answer a brief question or two. For as long as the vehicle is neither searched nor its occupants subjected to a body search, and the inspection of the vehicle is limited to a visual search, said routine checks cannot be regarded as violative of an individual’s right against unreasonable search. In fact, these routine checks, when conducted in a fixed area, are even less intrusive.” (People v. Usana/Escano)

“Petitioner Valmonte’s general allegation to the effect that he had been stopped and searched without a search warrant by the military manning the checkpoints, without more, i.e., without stating the details of the incidents which amount to a violation of his right against unlawful search and seizure, is not sufficient to enable the Court to determine whether there was a violation of Valmonte’s right against unlawful search and seizure. Not all searches and seizures are prohibited. Those which are reasonable are not forbidden. A reasonable search is not to be determined by any fixed formula but is to be resolved according to the facts of each case. Where, for example, the officer merely draws aside the curtain of a vacant vehicle which is parked on the public fair grounds, or simply looks into a vehicle, or flashes a light therein, these do not constitute unreasonable search. The setting up of the questioned checkpoints in Valenzuela (and probably in other areas) may be considered as a security measure to enable the NCRDC to pursue its mission of establishing effective territorial defense and maintaining peace and order for the benefit of the public. Checkpoints may also be regarded as measures to thwart plots to destabilize the government, in the interest of public security. In this connection, the Court may take judicial notice of the shift to urban centers and their suburbs of the insurgency movement, so clearly reflected in the increased killings in cities of police and military men by NPA “sparrow units,” not to mention the abundance of

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Room 409 Constitutional Law II Notes based on the Outline and Lecture of Atty. Joan S. Largo Subject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino

unlicensed firearms and the alarming rise in lawlessness and violence in such urban centers, not all of which are reported in media, most likely brought about by deteriorating economic conditions which all sum up to what one can rightly consider, at the very least, as abnormal times. Between the inherent right of the state to protect its existence and promote public welfare and an individual’s right against a warrantless search which is however reasonably conducted, the former should prevail. True, the manning of checkpoints by the military is susceptible of abuse by the men in uniform, in the same manner that all governmental power is susceptible of abuse. But, at the cost of occasional inconvenience, discomfort and even irritation to the citizen, the checkpoints during these abnormal times, when conducted within reasonable limits, are part of the price we pay for an orderly society and a peaceful community.” (Valmonte v. Gen. de Villa) j.

Exigent circumstances

N. Immunity from Arrest  “It is a recognized principle of international law and under our system of separation of powers that diplomatic immunity is essentially a political question and courts should refuse to look beyond a 8 determination by the executive branch of the government, and where the plea of diplomatic immunity is recognized and affirmed by the executive branch of the government as in the case at bar, it is then the duty of the courts to accept the claim of immunity upon appropriate suggestion by the principal law officer of the government, the Solicitor General in this case, or other officer acting under his direction.” Xxx the Philippine Government is bound by the procedure laid down in Article VII of the Convention on the 14 Privileges and Immunities of the Specialized Agencies of the United Nations for consultations between the Host State and the United Nations agency concerned to determine, in the first instance the fact of occurrence of the abuse alleged, and if so, to ensure that no repetition occurs and for other recourses. This is a treaty commitment voluntarily assumed by the Philippine Government and as such, has the force and effect of law.” (WHO v. Aquino) O. Effect of invalid search and seizure Art. III, Section 3, Constitution. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise, as prescribed by law. (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding. Note: Pieces of evidence seized in violation of Sec 2 is inadmissible in any court proceeding for they are fruits of a poisonous tree. This is referred to as the EXCLUSIONARY RULE. a. Rationale  “As we understand it, the reason for the exclusion of evidence competent as such, which has been unlawfully acquired, is that exclusion is the only practical way of enforcing the constitutional privilege. In earlier times the action of trespass against the offending official may have been protection enough; but that is true no longer. Only in case the prosecution which itself controls the seizing officials, knows that it cannot profit by their wrong will that wrong be repressed.” (Stonehill v. Diokno) //adsum

Article III, Section 12 of the 1987 Constitution. (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. (2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited. (3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him. (4) The law shall provide for penal and civil sanctions for violations of this section as well as compensation to the rehabilitation of victims of torture or similar practices, and their families.

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VII. RIGHTS OF PERSON UNDER CUSTODIAL INVESTIGATION

Room 409 Constitutional Law II Notes based on the Outline and Lecture of Atty. Joan S. Largo Subject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino

I.

Precedent a. Escobedo v. Illinois “spoke of the rights of a person under custodial investigation and specified CUSTODIAL INVESTIGATION as the time when the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect.” b. Miranda v. Arizona “enumerated the rights that are available to a person under custodial investigation: i. The person in custody must be informed at the outset in CLEAR and UNEQUIVOCAL terms that he has a RIGHT to REMAIN SILENT ii. After being so informed, he must be told that anything he says can and will be used against him in court iii. He must be CLEARLY informed that he has the RIGHT to CONSULT WITH A LAWYER and to have a lawyer with him during the interrogation. He does not have to ask for a lawyer. The investigators should tell him that he has the right to counsel at that point. iv. He should be warned that not only has he the right to consult with a lawyer BUT also that if he is INDIGENT, a lawyer will be APPOINTED TO REPRESENT him. v. Even if the person consents to answer questions without the assistance of counsel, the moment he asks for a lawyer at ANY POINT in the investigation, the interrogation must cease until an attorney is present. vi. If the foregoing protections and warnings are not demonstrated during the trial to have been observed by the prosecution, NO EVIDENCE OBTAINED AS A RESULT OF THE INTERROGATION CAN BE USED AGAINST HIM.”

II. Rationale  “It is merely a recognition of the fact that the PSYCHOLOGICAL if not PHYSICAL atmosphere of custodial interrogations, in the absence of proper safeguards, is INHERENTLY coercive.”  “Under the Constitution, an uncounseled statement, such as it is called in the United States from which Art. III, 12(1) was derived, is presumed to be psychologically coerced. Swept into an unfamiliar environment and surrounded by intimidating figures typical of the atmosphere of police interrogation, the suspect really needs the guiding hand of counsel.” (People v. Obrero)

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“Custodial investigation refers to the critical pre-trial stage when the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular person as a suspect.” (People v. Rodriguez)

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“Custodial investigation starts when the police investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect taken into custody by the police who starts the interrogation and propounds questions to the person to elicit incriminating statements.” (People v. Almanzor)

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“xxx custodial investigation began when the accused Ordoño and Medina voluntarily went to the Santol Police Station to confess and the investigating officer started asking questions to elicit information and/or confession from them.” (People v. Ordono)

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“The mantle of protection under this constitutional provision covers the period from the time a person is taken into custody for 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 a crime although not yet in custody.” (People v. Bravo)

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“custodial investigation commences when a person is taken into custody and is singled out as a suspect in the commission of the crime under investigation and the police officers begin to ask questions on the suspect's participation therein and which tend to elicit an admission.” (People v. Pavillare)

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b. Who are protected? “ANY person under INVESTIGATION…”

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III. Custodial Investigation a. Definition, nature and scope

Room 409 Constitutional Law II Notes based on the Outline and Lecture of Atty. Joan S. Largo Subject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino

 

c. At what point in the investigation will the right be available? “from the time when the investigation is no longer a general inquiry upon an unsolved crime but has begun to focus on a particular suspect.” “the right is available if a person is already in custody as a suspect, or if the person is the SUSPECT, even if he is not yet deprived in any significant way of his liberty” “RA 7438 has extended the guarantee to situations in which an individual has not been formally arrested but has merely been INVITED FOR QUESTIONING.” “Sec 2 (f) .Any person arrested or detained or under custodial investigation shall be allowed visits by or conferences with any member of his immediate family, or any medical doctor or priest or religious minister chosen by him or by any member of his immediate family or by his counsel, or by any national nongovernmental organization duly accredited by the Commission on Human Rights of by any international non-governmental organization duly accredited by the Office of the President. The person's "immediate family" shall include his or her spouse, fiance or fiancee, parent or child, brother or sister, grandparent or grandchild, uncle or aunt, nephew or niece, and guardian or ward. As used in this Act, "custodial investigation" shall include the practice of issuing an "invitation" to a person who is investigated in connection with an offense he is suspected to have committed, without prejudice to the liability of the "inviting" officer for any violation of law. d. Investigation that is covered: “investigation conducted by: a. Police authorities, including municipal police, PC, NBI and such other police agencies b. Conversation with a barangay captain that is part of an ongoing custodial investigation c. Mayor d. NBI applicant; and other public authorities with similar functions.” e. Cannot be invoked in: i. “admissions made in an administrative investigation conducted by officials of the Philippine Air Lines” (PP v. Judge Ayson, GR 85215, Jul 7, 1989) ii.

“made to a private individual” “ It s h o ul d we l l be r ec a l le d t ha t t he c o ns ti t ut i on a l s af e g uar ds d ur i n g c us t o d ia l i n ves t ig at i o ns do no t a pp l y t o t hos e n ot e l ic it ed t hr ou g h q ues t io n i n g b y t he po l ic e or t he ir a g e nts bu t g i v en in a n or d i nar y m a nn er whe re b y t he ac c us e d v er b a l l y a dm its to ha v i ng c om m itt ed t h e of f ens e as wh at ha p pe n ed i n t he c as e at b ar whe n ac c us ed- a pp e l la n t adm i tt ed t o M erc e d it a M e nd o za , o n e of th e ne i g hb or s of Ro b er t o S ep ar a, Sr. , to ha v i ng s tar te d t he f ir e i n t he S ep ar as ’ ho us e.” ( Pe o p le v. Ma l ng a n)

iii. “verbal admission to a radio announcer” (PP v. Ordono, GR 132154, June 29, 2000) iv. “even an admission made to a mayor who is approached not as a mayor but as a confidante is not covered.” (PP v. Zuela, GR 112177, January 28, 2000) v.

“interview recorded on video and in the presence of newsmen is not covered.” (PP v. Endino, GR 133026, Feb. 20, 2001)

vi. “it is now established that constitutional procedures on custodial investigation do not apply to a SPONTANEOUS statement, not elicited through questioning by the authorities, but given in an ordinary manner whereby the accused orally admits having committed the crime.” (PP v. Baloloy, GR 140740, Apr. 12, 2002) vii. “The stage of an investigation wherein a person is asked to stand in a police line-up has been held to be outside the mantle of protection of the right to counsel because it involves a general inquiry into an unsolved crime and is purely investigatory in nature.(People v. Pavillare), exc: suggestive

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Room 409 Constitutional Law II Notes based on the Outline and Lecture of Atty. Joan S. Largo Subject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino

“A police line-up is not part of the custodial investigation; hence, the right to counsel cannot yet be invoked at this stage” (People v. Almanzor) viii. “subjection to paraffin test” (PP v. Gamboa, (GR 91374,Feb. 25, 1991) IV. Prohibited conduct of custodial investigation Article III, Sec. 12 (2) of the Constitution

Xxx No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited. V. Rights under Custodial Investigation a. Right to be INFORMED that he has a right to be silent and a right to counsel RIGHT TO BE INFORMED 

“…it is settled that one's right to be informed of the right to remain silent and to counsel contemplates the transmission of meaningful information rather than just the ceremonial and perfunctory recitation of an abstract constitutional principle. It is not enough for the interrogator to merely repeat to the person under investigation the provisions of Section 12, Article III of the 1987 Constitution; the former must also explain the effects of such provision in practical terms e.g., what the person under interrogation may or may not do
and in a language the subject fairly understands. The right to be informed carries with it a correlative obligation on the part of the police investigator to explain, and contemplates effective communication which results in the subject's understanding of what is conveyed. Since it is comprehension that is sought to be attained, the degree of explanation required will necessarily vary and depend on the education, intelligence, and other relevant personal circumstances of the person undergoing investigation. In further ensuring the right to counsel, it is not enough that the subject is informed of such right; he should also be asked if he wants to avail of the same and should be told that he could ask for counsel if he so desired or that one could be provided him at his request. If he decides not to retain a counsel of his choice or avail of one to be provided for him and, therefore, chooses to waive his right to counsel, such waiver, to be valid and effective, must still be made with the assistance of counsel, who, under prevailing jurisprudence, must be a lawyer.” (People v. Canoy) Note: Right to be informedi. Effective communication ii. Not a perfunctory recital of rights iii. Meaningful transmission of information Right to Remain silent

He may opt not to talk Must not be required to furnish the missing evidence He can’t be compelled to re-enact the crime or sign receipt because “the right involves all evidence communicative in character” (PP v. Alcando) iv. Excludes the examination of the body c.

Right to Counsel

Rationale  “The person being interrogated must be assisted by counsel to avoid the pernicious practice of extorting false or coerced admissions or confessions from the lips of the person undergoing interrogation for the commission of the offense. Hence, if there is no counsel at the start of the custodial investigation any statement elicited from the accused is inadmissible in evidence against him.” (Pp v. Ordono) What do we mean by the right to counsel…PREFERABLY HIS CHOICE by a person under custodial investigation?

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b. Note: i. ii. iii.

Room 409 Constitutional Law II Notes based on the Outline and Lecture of Atty. Joan S. Largo Subject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino

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Withal, the word "preferably" under Section 12 [1], Article 3 of the 1987 Constitution does not convey the message that the choice of a lawyer by a person under investigation is exclusive as to preclude other equally competent and independent attorneys from handling his defense. If the rule were otherwise, then, the tempo of a custodial investigation will be solely in the hands of the accused who can impede, nay, obstruct the progress of the interrogation by simply selecting a lawyer who for one reason or another, is not available to protect his interest. This absurd scenario could not have been contemplated by the framers of the charter. While the initial choice in cases where a person under custodial investigation cannot afford the services of a lawyer is naturally lodged in the police investigators, the accused really has the final choice as he may reject the counsel chosen for him and ask for another one. A lawyer provided by the investigators is deemed engaged by the accused where he never raised any objection against the former's appointment during the course of the investigation and the accused thereafter subscribes to the veracity of his statement before the swearing officer. Verily, to bean effective counsel "[a] lawyer need not challenge all the questions being propounded to his client. The presence of a lawyer is not intended to stop an accused from saying anything which might incriminate him but, rather, it was adopted in our Constitution to preclude the slightest coercion as would lead the accused to admit something false. The counsel, however, should never prevent an accused from freely and voluntarily telling the truth." (Pp v. Base)

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“At the outset, we must clarify that the right to counsel does not mean that the accused must personally hire his own counsel. The constitutional requirement is satisfied when a counsel in (1) engaged by anyone acting on behalf of the person under investigation or (2) appointed by the court upon petition of the said person or by someone on his behalf.”(People v. Espiritu)

COUNSEL MUST BE INDEPENDENT AND COMPETENT  “. . . The competent or independent lawyer so engaged should be present from the beginning to end, i.e., at all stages of the interview, counseling or advising caution reasonably at every turn of the investigation, and stopping the interrogation once in a while either to give advice to the accused that he may either continue, choose to remain silent or terminate the interview.”(People v. Espiritu) “Jurisprudence is clear that an accused under custodial investigation must continuously have a counsel assisting him from the very start thereof.”(People v. Rodriguez) Note: When is it attached? - from start to finish and in between What is competent? “…that he is willing to fully safeguard the constitutional rights of the accused, as distinguished from one who would merely be giving a routine, peremptory and meaningless recital of the individual's constitutional rights.”(People v. Espiritu)

What is independent?  He must not have adverse interest on the case of the suspect. Municipal Attorney cannot be considered an independent counsel. 26  In People vs. Bandula, it was held that a Municipal Attorney cannot be an independent counsel as 27 As a legal officer of the municipality, he provides legal assistance and required by the Constitution. support to the mayor and the municipality in carrying out the delivery of basic services to the people, including the maintenance of peace and order. It is therefore seriously doubted whether he can effectively undertake the defense of the accused without running into conflict of interests. He is no better than a 28 fiscal or a prosecutor who cannot represent the accused during custodial investigations. Consequently, for being violative of Constitution, the extrajudicial confession of accused-appellant is inadmissible. (People v. Culala). P.A.O. Lawyer is an independent counsel. “…a PAO lawyer can be considered an independent counsel within the contemplation of the Constitution

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Why? 25 “In People v. Basay, this Court stressed that an accused's right to be informed of the right to remain silent and to counsel "contemplates the transmission of meaningful information rather than just the ceremonial and perfunctory recitation of an abstract constitutional principle."(cited in People v. Espiritu)

Room 409 Constitutional Law II Notes based on the Outline and Lecture of Atty. Joan S. Largo Subject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino

considering that he is not a special counsel, public or private prosecutor, counsel of the police, or a municipal i[11] Thus, the assistance of a PAO attorney whose interest is admittedly adverse to that of the accused-appellant. lawyer in the present case satisfies the constitutional requirement of a competent and independent counsel for the accused.”(People v. Bacor). P.C. Captain and station commander of WPD is not an independent counsel.  “Moreover, Art. III, 12(1) requires that counsel assisting suspects in custodial interrogations be competent and independent. Here, accused-appellant was assisted by Atty. De los Reyes, who, though presumably competent, cannot be considered an "independent counsel" as contemplated by the law for the reason that he was station commander of the WPD at the time he assisted accused-appellant. …xxx…xxx…xxx… 21 As observed in People v. Bandula, the independent counsel required by Art. III,
12(1) cannot be a special counsel, public or private prosecutor, municipal attorney, or counsel of the police whose interest is admittedly adverse to the accused. In this case, Atty. De los Reyes, as PC Captain and Station Commander of the WPD, was part of the police force who could not be expected to have effectively and scrupulously assisted accusedappellant in the investigation, his claim to the contrary notwithstanding. To allow such a happenstance would render illusory the protection given to the suspect during custodial investigation.(People v Obrero) Can the right to counsel (under custodial investigation) be waived? YES. NOTE: Only the right to remain silent and to counsel can be waived. How is it waived?  “(d) Any extrajudicial confession made by a person arrested, detained or under custodial investigation shall be in writing and signed by such person in the presence of his counsel or in the latter's absence, upon a valid waiver, and in the presence of any of the parents, elder brothers and sisters, his spouse, the municipal mayor, the municipal judge, district school supervisor, or priest or minister of the gospel as chosen by him; otherwise, such extrajudicial confession shall be inadmissible as evidence in any proceeding.” (R.A. 7438)  “Finally, Republic Act 7438 mandates that the entire confession must be in writing.” (People v. Deniega)

Two kinds of involuntary or coerced confessions:  “There are two kinds of involuntary or coerced confessions treated in this constitutional provision: (1) those which are the product of third degree methods such as torture, force, violence, threat, intimidation, which are dealt with in paragraph 2 of 12, and (2) those which are given without the benefit of Miranda warnings, which are the subject of paragraph 1 of the same.”(People v Obrero) Example of a PERFUNCTURY READING OF MIRANDA RIGHTS: (People v. Obrero) Indeed, the waiver signed by accused-appellant reads: MGA KARAPATAN AYON SA ATING BINAGONG SALIGANG BATAS: Ikaw, JIMMY OBRERO y CORLA, ay aking isasailalim sa pagsisiyasat sa salang Pagnanakaw na may kasamang Pagpatay, nais kong ipaalam sa iyo ang iyong mga karapatan ayon sa ating Binagong Saligang Batas: 1. Karapatan mo ang manahimik at huwag sagutin ang mga itatanong ko sa iyo; 2. Karapatan mo ang kumuha ng isang abogado na iyong sariling pili na maaaring makatulong sa iyo sa imbistigasyon na ito at kung hindi ka makakakuha ng iyong abogado ay bibigyan ka namin ng isa na walang bayad para makatulong sa iyo;

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Reason: Presumption of an uncounselled confession:  “But what renders the confession of accused-appellant inadmissible is the fact that accused-appellant was not given the Miranda warnings effectively. Under the Constitution, an uncounseled statement, such as it is called in the United States from which Art. III, 12(1) was derived, is presumed to be psychologically coerced. Swept into an unfamiliar environment and surrounded by intimidating figures typical of the atmosphere of police interrogation, the suspect really needs the guiding hand of counsel.” (People v. Obrero)

Room 409 Constitutional Law II Notes based on the Outline and Lecture of Atty. Joan S. Largo Subject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino

3. Karapatan mo rin na malaman na ang lahat ng iyong sasabihin dito sa iyong salaysay ay maaaring gamiting katibayan o ebidensya laban o pabor sa iyo o sa kanino mang tao sa alinmang hukuman dito sa Pilipinas. Ngayon na naipaalam ko na sa iyo ang iyong mga karapatan, nais mo pa bang magbigay ng iyong malaya at kusang loob na salaysay? SAGOT : (ni Jimmy Obrero y Corla) Opo. TANONG: Kung ganoon ay sabihin mo ulit ang iyong pangalan at lagdaan mo ito sa ibabaw ng iyong pangalan na ipipirma o imamakinilya ko? (Sgd.) JIMMY OBRERO y CORLA There was thus only a perfunctory reading of the Miranda rights to accused-appellant without any effort to find out from him whether he wanted to have counsel and, if so, whether he had his own counsel or he wanted the police 16 to appoint one for him. This kind of giving of warnings, in several decisions of this Court, has been found to be merely ceremonial and inadequate to transmit meaningful information to the suspect. Especially in this case, care should have been scrupulously observed by the police investigator that accused-appellant was specifically asked these questions considering that he only finished the fourth grade of the elementary school. VI. REQUISITES OF VALID CONFESSION REQUISITES FOR AN EXTRAJUDICIAL CONFESSION TO BE ADMISSIBLE: 1. The confession must be voluntary 2. It must be made with the assistance of a competent and independent counsel preferably of the confessant’s choice 3. It must be express 4. It must be in writing When is confession voluntary?  “. . . bare assertions of maltreatment by the police authorities in extracting confessions from the accused 52 are not sufficient in view of the standing rule enunciated in the cases of People v. Mada-I Santalani; 53 54 People v. Balane; and People v. Villanueva, that where the defendants did not present evidence of compulsion, or dures nor violence on their person; where they failed to complain to the officer who administered their oaths; where they did not institute any criminal or administrative action against their alleged intimidators for maltreatment; where there appeared to be no marks of violence on their bodies; and where they did not have themselves examined by a reputable physician to buttress their claim, all these were considered by this Court as factors indicating voluntariness.” (People v. Base)

VII. Effect of non- compliance  “xxx (3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him.” 

“It is not material that appellant's confession came in verbal form. Section 20, Article IV of the 1973 Constitution does not distinguish between verbal and non-verbal confessions. So long as they are uncounselled, they are inadmissible in evidence. What is sought to be avoided is "the evil of extorting from the very mouth of the person undergoing interrogation for the commission of an offense, the very evidence with which to prosecute and thereafter convict him." Xxxxxx The statements made by appellant pertaining to the stolen pieces of jewelry are inadmissible in evidence against him because these were taken in violation of his rights to counsel and to remain silent. Nor can the recovered pieces of jewelry be used as evidence against the appellant. They are fruits of the poisonous tree.” (Pp v. Bonola)

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RECIEPT OF CUSTODY is the same as an extrajudicial confession outlawed in the constitution:  “The Court agrees with counsel for the accused-appellant that the Receipt for Custody (Exh. B) is inadmissible in evidence, as it was signed by the accused during custodial investigation without the assistance of counsel of his choice and without having been first informed of his constitutional right to silence and to counsel. The said Receipt is a declaration against interest and a tacit admission of the crime charged, since mere unexplained possession of prohibited drugs is punished by law. The Receipt is in the same category as extrajudicial confessions outlawed by the Constitution.” (People v. Turla)

Room 409 Constitutional Law II Notes based on the Outline and Lecture of Atty. Joan S. Largo Subject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino

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26

Under the present laws, a confession to be admissible must be: 27 1.) express and categorical; 28 29 2.) given voluntarily, and intelligently where the accused realizes the legal significance of his act; 30 3.) with assistance of competent and independent counsel; 31 4.) in writing; and in the language known to and understood by the confessant; and 32 5) signed, or if the confessant does not know how to read and write thumbmarked by him. In this case, the absence of the third requisite above makes the confession inadmissible. The purpose of providing counsel to a person under custodial investigation is to curb the uncivilized practice of extracting 33 34 confession even by the slightest coercion as would lead the accused to admit something false. What is sought to be avoided is the "evil of extorting from the very mouth of the person undergoing interrogation for the 35 commission of an offense, the very evidence with which to prosecute and thereafter convict him. These constitutional guarantees have been made available to protect him from the inherently coercive psychological, if 36 not physical atmosphere of such investigation. In any case, said extrajudicial confession of one accused may not be utilized against a co-accused unless they are repeated in open court or when there is an opportunity to cross-examine the other on his extrajudicial statements. It is considered hearsay as against said accused under the rule on res enter alios acta rule, which ordains that the rights of a party cannot be prejudiced by an act, declaration, or omission of another. (Pp v. Olivares, Jr.) 

VIII. RIGHT TO BAIL Article III, Section 13 of the Constitution: All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required. A. Bail, defined

1[9]

RA 7438, (e)

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“To the credit of the police, they requested the presence of the Parish Priest and the Municipal 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. In providing that during the taking of an extrajudicial confession the accused's parents, older brothers and sisters, his spouse, the municipal mayor, municipal judge, district school supervisor, or priest or minister of the gospel as chosen by the accused may be present, RA 7438 does not propose that they appear in the alternative or as a substitute for counsel without any condition or clause. It is explicitly stated therein that before the above-mentioned persons can appear two (2) conditions must be met: (a) counsel of the accused must be absent, and, (b) a valid waiver must be executed. RA 7438 does not therefore unconditionally and unreservedly eliminate the necessity of counsel but underscores its importance by requiring that a substitution of counsel with the above-mentioned persons be made with caution and with the essential safeguards. Hence, in the absence of such valid waiver, the Parish Priest of Santol, the Municipal Mayor, the relatives of the accused, the Chief of Police and other police officers of the municipality could not stand in lieu of counsel's presence. The apparent consent of the two (2) accused in continuing with the investigation was of no moment as a waiver to be effective must be made in writing and with the 1[9] assistance of counsel. Consequently, any admission obtained from the two (2) accused emanating from such uncounselled interrogation would be inadmissible in evidence in any proceeding. Securing the assistance of the PAO lawyer five (5) to eight (8) days later does not remedy this omission either. Although there was a showing that the PAO lawyer made a thorough explanation of the rights of the accused, enlightened them on the possible repercussions of their admissions, and even gave them time to deliberate upon them, this aid and valuable advice given by counsel still came several days too late. It could have no palliative effect. It could not cure the absence of counsel during the custodial investigation when the extrajudicial statements were being taken. (Pp v. Ordono)

Room 409 Constitutional Law II Notes based on the Outline and Lecture of Atty. Joan S. Largo Subject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino

Rule 114, SECTION 1. Bail defined. – Bail is the security given for the release of a person in custody of the law, furnished by him or a bondsman, to guarantee his appearance before any court as required under the conditions hereinafter specified. Bail may be given in the form of corporate surety, property bond, cash deposit, or recognizance. B. Who can avail?  “At this juncture, there is a need to reiterate the basic principle that the right to bail can only be availed of by a person who is in custody of the law or otherwise deprived of his liberty and it would be premature, not to say incongruous, to file a petition for bail for someone whose freedom has yet to be curtailed.” (Cortes v. Catral) C. When a matter of right? Rule 114, SEC. 4. Bail, a matter of right; exception. – All persons in custody shall be admitted to bail as a matter of right, with sufficient sureties, or released on recognizance as prescribed by law or this Rule (a)before or after conviction by the Metropolitan Trial Court, Municipal Trial Court, Municipal Trial Court in Cities, or Municipal Circuit Trial Court, and (b) before conviction by the Regional Trial court of an offense not punishable by death, reclusion perpetua, or life imprisonment. Aswat v. Galido G. R. No. 88555, Nov. 21, 1991 Facts: Petition for writ of Habeas Corpus. Petitioner Aswat and victim Nebres, were both enlisted in the Philippine Air Force holding ranks of Private First Class and Corporal, respectively. They were assigned in the Southern Luzon Command but Aswat was detailed as caretaker of General Galido’s resthouse in Baguio while Nebres was assigned to act as the personal driver of the General’s wife. Petitioner was involved in a shooting incident at Dominican Hills, Baguio City, which resulted to the death of Nebres. Petitioner voluntarily surrendered to the Baguio police. He was briefly incarcerated in the Baguio City jail before he was detained in the South Luzon Command detention cell. He was tried in a military court. Issue: WON the right to bail is available to military personnel charged in the military court? No. Although the right to bail applies to "all," the Court has very recently ruled that the guarantee is not without any exception. In Comendador vs. De Villa, et al., 7 the Court en banc, speaking through Mr. Justice Cruz, held: We find that the right to bail invoked by the private respondents in G.R. No. 95020 has traditionally not been recognized and is not available in the military, as an exception to the general rule embodied in the Bill of Rights. This much was suggested in Arula, where We observed that the right to a speedy trial is given more emphasis in the military where the right to bail does not exist. The justification for this exception was well explained by the Solicitor General as follows: The unique structure of the military should be enough reason to exempt military men from the constitutional coverage on the right to bail. Aside from structural peculiarity, it is vital to note that mutinous soldiers operate within the framework of the democratic system, are allowed the fiduciary use of firearms by the government for the discharge of their duties and responsibilities and are paid out of revenues collected from the people. All other insurgent elements carry out their activities outside of and against the existing political system. xxx xxx xxx The argument that denial from the military of the right to bail would violate the equal protection clause is not acceptable. This guarantee requires equal treatment only of persons or things similarly situated and does not apply where the subject of the treatment is substantially different from others. The accused officers can complain if they are denied bail and other members of the military are not. But they cannot say they have been discriminated against because they are not allowed the same right that is extended to civilians. Held: petition was dismissed. (adsum) NOTE: Bail is a matter of right – 1. Before conviction by the MTC, MTC, or MCTC (Section 4 [a]); 2. After conviction by the MTC (Section 4 [a]); 3. Before conviction by the RTC of an offense not punishable by death, reclusion perpetua or life imprisonment (Section 4 [b])

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Ruling:

Room 409 Constitutional Law II Notes based on the Outline and Lecture of Atty. Joan S. Largo Subject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino

4. Before conviction by the RTC of an offense punishable by death reclusion or life imprisonment when evidence of guilt is not strong. (People vs. Donato)

NOTE: Based on that provision, bail is discretionary after conviction by the RTC of an offense not punishable by death, reclusion perpetua or life imprisonment, provided the case does not fall under Section 5, third paragraph [a]-[e] of the same law because once the case falls under any of these, no bail even if it is a matter of discretion. Pepito v. Magno No. L-19361, Feb. 26, 1965 Facts: Certiorari The petitioner and others were charged with Roberry with Rape in the MTC of Davao City. Petitioner was arrested by virtue of a warrant of arrest and his case was forwarded to the RTC. Before an information was filed, accused filed a petition for bail. It was denied for being premature. His second petition was granted, fixing the bail bond in the sum of P40,000.00. However, the fiscal moved for a reconsideration of the order, claiming that he had just received sufficient evidence to prove the guilt of the petitioner. The order was set aside and the petition for bail was denied. Issue: Grounds for the denial of bail in capital punishments Ruling: A reading of the order complained of clearly shows that, in the opinion of the respondent judge, the evidence presented during the summary hearing on the motion for bail showed "that the accused Pepito Magno has participated in the commission of the offense of which he is charged with other persons." Casting aside other unnecessary pronouncements made in the order complained of, we believe that what the respondent judge really found and held was that the evidence of guilt presented against petitioner was strong and justified denial of his motion for bail. At this stage of the proceeding, there is nothing before us, sufficient to justify the conclusion that His Honor erred or abused his discretion in so holding. Held: petition denied. (adsum)  

“Bail is not a matter of right as regards persons charged with offenses punishable by reclusion perpetua when the evidence of guilt is strong.” (People v. Dacudao) “When a person is charged with an offense punishable by death, reclusion perpetua or life imprisonment, bail is a matter of discretion.” (Cortes v. Catral)

 C.1 Effect if the offense changed from non-bailable to bailable:

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D. When a matter of discretion?  Rule 114, SEC. 5. Bail, when discretionary. – Upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua, or life imprisonment, admission to bail is discretionary. The application for bail may be filed and acted upon by the trial court despite the filing of a notice of appeal, provided it has not transmitted the original record to the appellate court. However, if the decision of the trial court conviction the accused changed the nature of the offense from non-bailable to bailable, the application for bail can only be filed with and resolved by the appellate court. Should the court grant the application, the accused may be allowed to continue on provisional liberty during the pendency of the appeal under the same bail subject to the consent of the bondsman. If the penalty imposed by the trial court is imprisonment exceeding six (6) years, the accused shall be denied bail, or his bail shall be cancelled upon a showing by the prosecution, with notice to the accuse, of the following or other similar circumstances: (a) That he is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime aggravated by the circumstance of reiteration; (b) That he has previously escaped from legal confinement, evaded sentence, or violated the conditions of his bail without valid justification; (c) That he committed the offense while under probation, parole, or conditional pardon; (d) That the circumstances of his case indicate the probability of flight if released on bail; or (e) That there is undue risk that he may commit another crime during the pendency of the appeal. The appellate court may, motu proprio or on motion of any party, review the resolution of the Regional Trial Court after notice to the adverse party in either case.

Room 409 Constitutional Law II Notes based on the Outline and Lecture of Atty. Joan S. Largo Subject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino

Xxx However, if the decision of the trial court conviction the accused changed the nature of the offense from non-bailable to bailable, the application for bail can only be filed with and resolved by the appellate court.xxx People v.IAC, 147 SCRA 219 (Jan.10, 1987) Facts: Petition for certiorari to review the decision of the IAC. The accused Angelito Alivia was charged before the then CFI of Isabela with the crimes: 1. Assault upon an agent of a person in authority with murder with the use of illegally possessed firearm. 2. Assault upon a person in authority 3. Murder of Atty. Maramba with the use of illegally possessed firearm The accuse after committing the said crimes voluntarily surrendered to the PC command and executed an extrajudicial confession with the aid of his uncle lawyer. Thereafter, they applied for bail. The RTC denied the petition. On appeal to the IAC, it granted bail worth P80,000.00 because of their finding that the offense committed was homicide not murder. Thus, this petition. Issue1: WON the appellate court could determine if evidence of guilt is strong? Ruling: The posture taken by the respondent Court in granting bail to the accused and in disregarding the findings by the trial court of the guilt of the accused (respondent herein) is a clear deviation from Our ruling laid down in the case of Bolanos vs. dela Cruz, to wit: Under the Constitution, all persons shall, before conviction, be bailable by sufficient sureties, except those charged with capital offenses when evidence of guilt is strong. It is the trial court which is tasked to determine whether or not the evidence of guilt is strong and it has determined the affirmative in this case after consideration of the evidence already presented by the prosecution, In the absence of Manifest abuse of discretion We are not prepared to substitute our judgment for that of the trial court. Issue2: For purposes of bail, what determines whether the offense is capital or not? An offense is capital, if it may be punished by death under both the law prevailing at the time of its commission and that prevailing at the time of the application for bail, even if after conviction a penalty less than death imposed. In its assailed decision, respondent (IAC) concurred with the trial court that the charges against accused are capital offenses and that the evidence of guilt of the accused is strong. However, the respondent 2 Court ruled that while the evidence clearly established that the petitioner was responsible for the shooting of Atty. Maramba, Lt. Rumbaoa and Patrolman Sagun and he so admitted responsibility for their death in his confession" the crime is ostensibly that of homicide merely, not murder. The criterion to determine whether the offense charged is capital is the penalty provided by the law regardless of the attendant circumstances. As pointed out by the petitioner in its memorandum, The rationale of the provision lies in the difficulty and impracticability of determining the nature of the offense on the basis of the penalty actually imposable. Otherwise, the test will require consideration not only of evidence showing commission of the crime but also evidence of the aggravating and mitigating circumstances. Thus, there has to be not only a complete trial, but the trial court must also already render a decision in the case. This defeats the purpose of bail, which is to entitle the accused to provisional liberty pending trial. Held: decision of the IAC is set aside and the order of the RTC denying bail is reinstated. (adsum) NOTE: The reckoning point to determine whether an offense is bailable or not is the penalty imposed by law at the time of the commission of the offense and at the time of the application of bail. Bail even on appeal is discretionary. E. Standards for fixing Bail SEC. 9. Amount of bail; guidelines. – The judge who issued the warrant or granted the application shall fix a reasonable amount of bail considering primarily, but not limited to, the following factors:

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Ruling:

Room 409 Constitutional Law II Notes based on the Outline and Lecture of Atty. Joan S. Largo Subject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino

(a) Financial liability of the accused to give bail; (b) Nature and circumstance of the offense; (c) Penalty for the offense charged; (d) Character and reputation of the accused; (e) Age and health of the accused; (f) Weight of the evidence against the accused; (g) Probability of the accused appearing at the trial; (h) Forfeiture of other bail; (i) The fact that the accused was a fugitive from justice when arrested; and (j) Pendency of other cases where the accused is on bail. Excessive bail shall not be required. Cortes v. Catral , A.M. No. RTJ-97-1387 September 10, 1997 [279 SCRA 1] Facts: Petitioner filed an administrative complaint against the respondent judge of the RTC of Cagayan for gross ignorance of law for granting petitions for bail without a hearing. Issue: WON hearing is necessary in petition for application of bail even if the prosecutor opted not to present evidence? Ruling: Therefore, whether bail is a matter of right or of discretion, reasonable notice of hearing is required to be given to the prosecutor or fiscal or at least he must be asked for his recommendation because in fixing the amount of bail, the judge is required to take into account a number of factors such as the applicant's character and reputation, forfeiture of other bonds or whether he is a fugitive from justice.xxx Consequently, when the accused is charged with an offense punishable by death, reclusion perpetua or life imprisonment, the judge is mandated to conduct a hearing, whether summary or otherwise in the discretion of the court, not only to take into account the guidelines set forth in Section 9, Rule 114 of the Rules of Court, but primarily to determine the existence of strong evidence of guilt or lack of it, against the accused. 27

Held: respondent judge is fined worth P20,000.00 and warned that any repetition of his act will be dealt with more severely. (adsum) NOTE: duties of the trial judge in case an application for bail is filed: 1. In all cases, whether bail is a matter of right or of discretion, notify the prosecutor of the hearing of the application for bail or require him to submit his recommendation (Section 18, Rule 114 of the Rules of Court as amended); 2. Where bail is a matter of discretion, conduct a hearing of the application for bail regardless of whether or not the prosecution refuses to present evidence to show that the guilt of the accused is strong for the purpose of enabling the court to exercise its sound discretion; (Sections 7 and 8, supra). 3. Decide whether the guilt of the accused is strong based on the summary of evidence of the prosecution;

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In the recent case of Inocencio Basco v. Judge Leo M. Rapatalo, this Court ruled that.xxx the judge is mandated to conduct a hearing even in cases where the prosecution chooses to just file a comment or leave the application of bail to the sound discretion of the court. A hearing is likewise required if the prosecution refuses to adduce evidence in opposition to the application to grant and fix bail. The importance of a hearing has been emphasized in not a few cases wherein the court ruled that, even if the prosecution refuses to adduce evidence or fails to interpose an objection to the motion for bail, it is still mandatory for the court to conduct a hearing or ask searching questions from which it may infer the strength of the evidence of guilt, or the lack of it against the accused." The reason for this is plain. Inasmuch as the determination of whether or not the evidence of guilt against the accused is strong is a matter of judicial discretion, it may rightly be exercised only after the evidence is submitted to the court at the hearing. Since the discretion is directed to the weight of evidence 28 and since evidence cannot properly be weighed if not duly exhibited or produced before the court, it is obvious that a proper exercise of judicial discretion requires that the evidence of guilt be submitted to the court, the petitioner having the right of cross examination and to introduce evidence in his own rebuttal.

Room 409 Constitutional Law II Notes based on the Outline and Lecture of Atty. Joan S. Largo Subject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino

4. If the guilt of the accused is not strong, discharge the accused upon the approval of the bailbond (Section 19, supra) Otherwise petition should be denied. (Cortes v. Castral) People v. Dacudao, G.R. No. 81389, Feb. 21, 1989 [189 SCRA 489] Facts: Petition to review the order of the RTC of Cebu City. The accused Rey Christopher Paclibar and Nero Desamparado were charged in an Information for murder in the RTC of Cebu. Accused pleaded “not guilty” and subsequently filed a motion for bail. The judge without conducting a hearing in the application for bail granted the petition for bail. Issue: WON granting a petition for bail without allowing the prosecution to present evidence violates procedural due process? Ruling: The respondent court acted irregularly in granting bail in a murder case without any hearing on the motion asking for it, without bothering to ask the prosecution for its conformity or comment, and, as it turned out later, over its strong objections.xxx To appreciate the strength or weakness of the evidence of guilt, the prosecution must be consulted or heard. It is equally entitled as the accused to due process. Thus, this Court, in People v. San Diego (26 SCRA 522 [1968]), held: The question presented before us is, whether the prosecution was deprived of procedural due process. The answer is in the affirmative. We are of the considered opinion that whether the motion for bail of a defendant who is in custody for a capital offense be resolved in a summary proceeding or in the course of a regular trial the prosecution must be given an opportunity to present, within a reasonable time, all the evidence that it may desire to introduce before the court should resolve the motion for bail. If, as in the criminal case involved in the instant special civil action, the prosecution should be denied such an opportunity, there would be a violation of procedural due process, and the order of the court granting bail should be considered void on that ground. The orders complained of dated October 7, 9 and 12, 1968, having been issued in violation of procedural due process, must be considered null and void.

Certain guidelines in the fixing of a bailbond call for the presentation of evidence and reasonable opportunity for the prosecution to refute it. Among them are the nature and circumstances of the crime, character and reputation of the accused, the weight of the evidence against him, the probability of the accused appearing at the trial, whether or not the accused is a fugitive from justice, and whether or not the accused is under bond in other cases. (Section 6, Rule 144, Rules of Court) It is highly doubtful if the trial court can appreciate these guidelines in an ex-parte determination where the Fiscal is neither present nor heard. Held: petition granted, the order granting bail is set aside. (adsum) F. Right to bail and the Right to travel Manotok v. CA, 142 SCRA 149 Facts: Review on certiorari. Petitioner Ricardo L. Manotoc, Jr., is one of the stockholders of Trans-Insular Management, Inc. and the Manotoc Securities, Inc. Having transferred the management of the latter into the hands of professional men, he

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The court's discretion to grant bail in capital offenses must be exercised in the light of a summary of the evidence presented by the prosecution; otherwise, it would be uncontrolled and might be capricious or whimsical. Hence, the court's order granting or refusing bail must contain a summary of the evidence for the prosecution followed by its conclusion whether of not the evidence of guilt is strong. The orders of October 7, 9 and 12, 1968, granting bail to the five defendants are defective in form and substance because they do not contain a summary of the evidence presented by the prosecution. They only contain the court's conclusion that the evidence of guilt is not strong. Being thus defective in form and substance, the orders complained of cannot, also on this ground, be allowed to stand. (at p. 524; Emphasis supplied)

Room 409 Constitutional Law II Notes based on the Outline and Lecture of Atty. Joan S. Largo Subject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino

holds no officer-position in said business, but acts as president of the former corporation. But because one of his principal stockholder’s flight from this jurisdiction, he came to the Philippines from the US. And together with his co-stockholders, filed a petition with the Securities and Exchange Commission for the appointment of a management committee, for the two brokerage houses. Pending the disposition of the SEC case, the petitioner was not cleared for departure. When a Torrens title submitted to and accepted by Manotoc Securities, Inc. was suspected to be a fake, six of its clients filed six separate criminal complaints against petitioner and one Raul Leveriza, Jr., as president and vice-president, respectively, of Manotoc Securities, Inc. In all cases, petitioner has been admitted to bail in the total amount of P105,000.00, with FGU Insurance Corporation as surety. On March 1, 1982, petitioner filed before each of the trial courts a motion entitled, "motion for permission to leave the country", stating as ground therefor his desire to go to the United States, "relative to his business transactions and opportunities." The prosecution opposed said motion and after due hearing, both trial judges denied the same. Issue: WON a person a person provisionally released on bail has an unrestricted right to travel? Ruling: A court has the power to prohibit a person admitted to bail from leaving the Philippines. This is a necessary consequence of the nature and function of a bail bond. Rule 114, Section 1 of the Rules of Court defines bail as the security required and given for the release of a person who is in the custody of the law, that he will appear before any court in which his appearance may be required as stipulated in the bail bond or recognizance. "Its object is to relieve the accused of imprisonment and the state of the burden of keeping him, pending the trial, and at the same time, to put the accused as much under the power of the court as if he were in custody of the proper officer, and to secure the appearance of the accused so as to answer the call of the court and do what the law may require of him." The condition imposed upon petitioner to make himself available at all times whenever the court requires his presence operates as a valid restriction on his right to travel. As we have held in People v. Uy Tuising, 61 Phil. 404 (1935): ". . . the result of the obligation assumed by appellee (surety) to hold the accused amenable at all times to the orders and processes of the lower court, was to prohibit said accused from leaving the jurisdiction of the Philippines, because, otherwise, said orders and processes will be nugatory, and inasmuch as the jurisdiction of the courts from which they issued does not extend beyond that of the Philippines they would have no binding force outside of said jurisdiction." xxx The constitutional right to travel being invoked by petitioner is not an absolute right. Section 5, Article IV of the 1973 Constitution states: "The liberty of abode and of travel shall not be impaired except upon lawful order of the court, or when necessary in the interest of national security, public safety or public health."

Held: petition for review is dismissed (adsum) G. 

Effect on right when detention is questioned: Rule 114, SEC. 26. Bail not a bar to objections on illegal arrest, lack of or irregular preliminary investigation. – An application for or admission to bail shall not bar the accused from challenging the validity of his arrest or the legality of the warrant issued therefore, or from assailing the regularity or questioning the absence of a preliminary investigation of the charge against him, provided that he raises them before entering his plea. The court shall resolve the matter as early as practicable but not later than the start of the trial of the case. NOTE: before- application for bail forfeits your right to question the validity of your arrest Now- because of the new provision in the Rules of Court, it is recognized that the right to bail is a separate right from the right against unreasonable seizure/arrest. Therefore filing a bail bond is

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To our mind, the order of the trial court releasing petitioner on bail constitutes such lawful order as contemplated by the above-quoted constitutional provision.

Room 409 Constitutional Law II Notes based on the Outline and Lecture of Atty. Joan S. Largo Subject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino

not a bar against your right to assail the validity of your arrest, provided that you have not yet filed a plea. H. Right to bail and extradition proceedings Gov’t. of the US A v. Hon Purganan, G.R. No. 148571, Sept. 24, 2002 Facts: The government of the USA , pursuant to the existing US-RP Extradition treaty requested the extradition of Mark Jimenez. Upon learning of the request for his extradition, Jimenez sought and was granted a Temporary Restraining Order (TRO) by the RTC of Manila, Branch 25. The TRO prohibited the Department of Justice (DOJ) from filing with the RTC a petition for his extradition. The validity of the TRO was, however, assailed by the SOJ in a Petition before the SC and the court dismissed the Petition. Again the GUSA thru the DOJ filed with the RTC a petition for extradition, however, before the RTC could act on the Petition, Respondent Jimenez filed before it an "Urgent Manifestation/Ex-Parte Motion," which prayed that petitioner’s application for an arrest warrant be set for hearing. The RTC granted the petition. Petition for certiorari seeking to void the orders of the RTC Manila, the first order sets for the hearing in the issuance of Mark Jimenez’ warrant of arrest and the second order granting the same bail. Issue: WON an extraditee is entitled to bail and to provisional liberty while the extradition proceedings are pending? Ruling: Xxx . As suggested by the use of the word "conviction," the constitutional provision on bail quoted above, as well as Section 4 of Rule 114 of the Rules of Court, applies only when a person has been arrested and detained for violation of Philippine criminal laws. It does not apply to extradition proceedings, because extradition courts do not render judgments of conviction or acquittal. Moreover, the constitutional right to bail "flows from the presumption of innocence in favor of every accused who should not be subjected to the loss of freedom as thereafter he would be entitled to acquittal, unless his guilt be proved beyond reasonable doubt." It follows that the constitutional provision on bail will not apply to a case like extradition, where the presumption of innocence is not at issue. The provision in the Constitution stating that the "right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended" does not detract from the rule that the constitutional right to bail is available only in criminal proceedings. It must be noted that the suspension of the privilege of the writ of habeas corpus finds application "only to persons judicially charged for rebellion or offenses inherent in or directly 61 connected with invasion." Hence, the second sentence in the constitutional provision on bail merely emphasizes the right to bail in criminal proceedings for the aforementioned offenses. It cannot be taken to mean that the right is available even in extradition proceedings that are not criminal in nature.

IX. RIGHTS OF THE ACCUSED Article III, Section 14 of the Constitution. (1) No person shall be held to answer for a criminal offense without due process of law. (2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused: Provided, that he has been duly notified and his failure to appear is unjustifiable. I.

Right to due process of law

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Held: Petition is GRANTED. The assailed RTC Order dated May 23, 2001 is hereby declared NULL and VOID, while the challenged Order dated July 3, 2001 is SET ASIDE insofar as it granted bail to Respondent Mark Jimenez. The bail bond posted by private respondent is CANCELLED. (adsum)

Room 409 Constitutional Law II Notes based on the Outline and Lecture of Atty. Joan S. Largo Subject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino



“What is required for compliance with the due process mandate in criminal proceedings? In Arnault v. Pecson, this Court with Justice Tuason as ponente, succinctly Identified it with "a fair and impartial trial and reasonable opportunity for the preparation of defense." In criminal proceedings then, due process is satisfied if the accused is "informed as to why he is proceeded against and what charge he has to meet, with his conviction being made to rest on evidence that is not tainted with falsity after full opportunity for him to rebut it and the sentence being imposed in accordance with a valid law. It is assumed, of course, that the court that rendered the decision is one of competent jurisdiction." The above formulation is a reiteration of what was decided by the American Supreme Court in a case of Philippine origin, Ong Chang Wing v. United States decided during the period of American rule, 1910 to be precise. Thus: "This court has had frequent occasion to consider the requirements of due process of law as applied to criminal procedure, and, generally speaking, it may be said that if an accused has been heard in a court of competent jurisdiction, and proceeded against under the orderly processes of law, and only punished after inquiry and investigation, upon notice to him, with an opportunity to be heard, and a judgment awarded within the authority of a constitutional law, then he has had due process of law.” (Nunez v. Sandiganbayan)





The Law presumes that an accused is innocent and this presumption stands until it is overturned by competent and credible proof. It is incumbent upon the prosecution to establish the guilt of the defendant beyond a reasonable doubt. The reasonable doubt should necessarily pertain to the facts 21 constitutive of the crime charged. Discrepancies that touch on significant facts are crucial on the guilt or innocence of an accused. Conversely, inconsistencies and discrepancies in details which are irrelevant to the elements of the crime are not grounds for acquittal. The rule of falsus in uno, falsus in omnibus has never been regarded as positive, mandatory, or inflexible. Surmises and conjecture have no place in a judicial and are especially anathema in a criminal prosecution. In a criminal prosecution a reasonable doubt can be created by many things but to be sufficient to prevent a conviction, it must arise from the evidence adduced or from the lack of evidence, and can arise from no other legitimate source. While no test definitively determines which is and which is not considered reasonable doubt under the law, it must necessarily involve genuine and irreconcilable contradictions based, not on suppositional thinking, but on the hard facts constituting the elements of the crime. It is not mere possible doubt, because everything relating to human affairs is open to some possible or imaginary doubt. It should not be vague, speculative or whimsical, but intelligent, reasonable and impartial and based on a careful examination and conscious consideration of all the evidence in the case. A reasonable doubt is not such doubt as any man may start by questioning for the sake of a doubt; nor a doubt suggested or surmised without foundation in facts or testimony, for it is possible always to question any conclusion derived from testimony, but such questioning is not what is reasonable doubt. Rather, it is that state of the case which, after the entire comparison and consideration of all the evidence leaves the mind of the judge in that condition that he cannot say that he feels an abiding conviction to a moral certainly of the truth of the charge. Absolute certainty is not demanded by the law to convict of any criminal charge but moral certainty is required, and this certainty must attend every proposition of proof requisite 30 to constitute the offense. Absolute, mathematical, or metaphysical certainty is not essential, and besides, in judicial investigation, it is wholly unattainable. Moral certainty is all that can be required. (Pp v. Calma) THE EQUIPOISE RULE “The equipoise rule invoked by the petitioner is applicable only where the evidence of the parties is evenly balanced, in which case the constitutional presumption of innocence should tilt the scales in favor of the accused. There is no such equipoise here. The evidence of the prosecution is overwhelming and has not been overcome by the petitioner with his nebulous claims of persecution and

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II. Right to be presumed innocent  “It must be borne in mind that criminal cases elevated by convicted public officials from the Sandiganbayan deserve the same thorough review by this Court as criminal cases involving ordinary citizens, simply because the constitutional presumption of innocence must be overcome by proof beyond reasonable doubt. Where the state fails to meet the quantum of proof required to overcome the constitutional presumption, the accused is entitled to acquittal, regardless of the weakness or even the absence of his defense for any conviction must rest on the strength of the prosecution's case and not on the weakness of the defense.” (Cosep v. Pp)

Room 409 Constitutional Law II Notes based on the Outline and Lecture of Atty. Joan S. Largo Subject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino

conspiracy. The presumed innocence of the accused must yield to the positive finding that he malversed the sum of P50,310.87 to the prejudice of the public whose confidence he has breached. His conviction must be affirmed.” (Corpuz v. People) 

PRIMA FACIE PRESUMPTIONS PROVIDED BY STATUTES “In many event, the validity of statutes establishing presumptions in criminal cases is now settled matter, Cooley, in his work on constitutional limitations, 8th ed., Vo. I, pp. 639-641says that "there is no constitutional objection to the passage of law providing that the presumption of innocence may be overcome by contrary presumption founded upon the experience of human conduct, and enacting what evidence shall be sufficient to overcome such presumption of innocence." In line with this view, it is generally held in the United States that the legislature may enact that when certain facts have been proven they shall be prima facie evidence of the existence of the guilt of the accused and shift the burden of proof provided there be rational connection between that facts proved and the ultimate fact presumed so that the inference of the one from proof of the others is not unreasonable and arbitrary because of lack of connection between the two in common experience.” (Pp v. Mingoa)

a. Malversation 

“The statute in the present case creates a presumption of guilt once certain facts are proved. It makes the failure of public officer to have duly forthcoming, upon proper demand, any public funds or property with which he is chargeable prima facie evidence that he has put such missing funds or property to personal use. The ultimate fact presumed is that officer has malversed the funds or property entrusted to his custody, and the presumption is made to arise from proof that he has received them and yet he has failed to have them forthcoming upon proper demand. Clearly, the fact presumed is but a natural inference from the fact proved, so that it cannot be said that there is no rational connection between the two. Furthermore, the statute establishes only a prima facie presumption, thus giving the accused an opportunity to present evidence to rebut it. The presumption is reasonable and will stand the test of validity laid down in the above citations.” (Pp v. Mingoa)



The failure of a public officer to have duly forthcoming any public funds or property with which he is chargeable, upon demand by any duly authorized officer, is a prima facie evidence that he has put such funds or property to personal use” (Agbanlong v. Pp)



b. Forgery “The rule is that if a person had in his possession a falsified document and be made use of it (uttered it), taking advantage of it and profiting thereby, the presumption is that he is the material author of the falsification. This is especially true if the use or uttering of the forged documents was so closely connected in time with the forgery that the user or possessor may be proven to have the capacity of committing the forgery, or to have close connection with the forgers, and therefore, had complicity in the forgery.” (Pp v. Sendaydiego)

c. Anti-Fencing Law “Since Section 5 of P.D. No. 1612 expressly provides that "[m]ere possession of any good, article, item, object, or anything of value which has been the subject of robbery or thievery shall be prima facie evidence of fencing," it follows that the petitioner is presumed to have knowledge of the fact that the items found in her possession were the proceeds of robbery or theft. The presumption is reasonable for no other natural or logical inference can arise from the established fact of her possession of the proceeds of the crime of robbery or theft. This presumption does not offend the presumption of innocence enshrined in the fundamental law. In the early case of United States vs. 21 Luling, this Court held: It has been frequently decided, in case of statutory crimes, that no constitutional provision is violated by a statute providing that proof by the state of some material fact or facts shall constitute prima facie evidence of guilt, and that then the burden is shifted to the defendant for the purpose of showing that such act or acts are innocent and are committed without unlawful intention. (Commonwealth vs. Minor, 88 Ky., 422.) In some of the States, as well as in England, there exist what are known as common law offenses. In the Philippine Islands no act is a crime unless it is made so by statute. The state having the right to declare

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

Room 409 Constitutional Law II Notes based on the Outline and Lecture of Atty. Joan S. Largo Subject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino

what acts are criminal, within certain well defined limitations, has a right to specify what act or acts shall constitute a crime, as well as what proof shall constitute prima facie evidence of guilt, and then to put upon the defendant the burden of showing that such act or acts are innocent and are not committed with any criminal intent or intention. 22 In his book on constitutional law, Mr. Justice Isagani A. Cruz said: Nevertheless, the constitutional presumption of innocence may be overcome by contrary presumptions based on the experience of human conduct [People vs. Labara, April 20, 1954]. Unexplained flight, for example, may lead to an inference of guilt, as 'the wicked flee when no man pursueth, but the righteous is as bold as a lion. Failure on the part of the accused to explain his possession of stolen property may give rise to the reasonable presumption that it was he himself who had stolen it [U.S. vs. Espia, 16 Phil. 506]. Under our Revised Penal Code, the inability of an accountable officer to produce funds or property entrusted to him will be considered prima facie evidence that he has appropriated them to his personal use [Art. 217]. According to Cooley, the constitutional presumption will not apply as long as there is "some rational connection between the fact proved and the ultimate fact presumed, and the inference of one fact from proof of another shall not be so unreasonable as to be purely arbitrary mandate" (Dizon-Pamintuan v. Pp)



“It is true that an accused person shall be entitled to be present and to defend himself in person and by counsel at every stage of the proceedings, from arraignment to promulgation of judgment (Section 1, Rule 115, Revised Rules of Criminal Procedure). This is hinged on the fact that a layman is not versed on the technicalities of trial. However, it is also provided by law that "[r]ights may be waived, unless the waiver is contrary to law, public order, public policy, morals, or good customs or prejudicial to a third person with right recognized by law." (Article 6, Civil Code of the Philippines). Thus, the same section of Rule 115 adds that "[u]pon motion, the accused may be allowed to defend himself in person when it sufficiently appears to the court that he can properly protect his rights without the assistance of counsel." By analogy, but without prejudice to the sanctions imposed by law for the illegal practice of law, it is amply shown that the rights of accused-appellants were sufficiently and properly protected by the appearance of Mr. Tomas Posadas. An examination of the record will show that he knew the technical rules of procedure. Hence, we rule that there was a valid waiver of the right to sufficient representation during the trial, considering that it was unequivocally, knowingly, and intelligently made and with the full assistance of a bona fide lawyer, Atty. Abdul Basar. Accordingly, denial of due process cannot be successfully invoked where a valid waiver of rights has been made” (Pp v. Tulin)

Note: right to be heard includes: 1. To be assisted by counsel 2. To adduce evidence 3. To be present during trial IV. Right to be informed of the nature and cause of accusation against him a. Conviction to a higher charge not alleged in the information is denial of this right 

Instructive in this regard is Section 6, Rule 110 of the Rules of Court, which reads:

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III. Right to be heard  “In criminal cases there can be no fair hearing unless the accused be given the opportunity to be heard by counsel. The right to be heard would be of little avail if it does not include the right to be heard by counsel. Even the most intelligent or educated man may have no skill in the science of the law, particularly in the rules of procedure, and, without counsel, he may be convicted not because he is guilty but because he does not know how to establish his innocence. And this can happen more easily to persons who are ignorant or uneducated. It is for this reason that the right to be assisted by counsel is deemed so important that it has become a constitutional right and it is so implemented that under our rules of procedure it is not enough for the Court to apprise an accused of his right to have an attorney, it is not enough to ask him whether he desires the aid of an attorney, but it is essential that the court should assign one de oficio if he so desires and he is poor grant him a reasonable time to procure an attorney of his own.” (Pp v. Holgado)

Room 409 Constitutional Law II Notes based on the Outline and Lecture of Atty. Joan S. Largo Subject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino

Sec. 6. Sufficiency of complaint or information. A complaint or information is sufficient if it states the name of the accused; the designation of the offense by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate time of the commission of the offense, and the place wherein the offense was committed. When an offense is committed by more than one person, all of them shall be included in the complaint or information. The purpose of the above-quoted rule is to inform the accused of the nature and cause of the accusation against him, a right guaranteed by no less than the fundamental law of the land. Elaborating on the defendant’s right to be informed, the Court held in Pecho vs. People that the objectives of this right are: 1. To furnish the accused with such a description of the charge against him as will enable him to make the defense; 2. To avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and 3. To inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had. It is thus imperative that the Information filed with the trial court be complete to the end that the accused may suitably prepare his defense. Corollary to this, an indictment must fully state the elements of the specific offense alleged to have been committed as it is the recital of the essentials of a crime which delineates the nature and cause of accusation against the accused. The Court held recently that to sustain a conviction under Article 335 of the Revised Penal Code as amended by Republic Act No. 7659, the prosecution must allege and prove the basic elements of: 1) sexual congress; 2) with a woman; 3) by force and without consent, and in order to warrant the imposition of the death penalty, the additional elements that 4) the victim is under 18 years of age at the time of the rape; and 5) the offender is a parent (whether legitimate, illegitimate or adopted) of the victim. In the case under scrutiny, the information does not allege the minority of the victim, Rosie S. Bayya, although the same was proven during the trial as borne by the records. The omission is not merely formal in nature since doctrinally, an accused cannot be held liable for more than what he is indicted for. It matters not how conclusive and convincing the evidence of guilt may be, but an accused cannot be convicted of any offense, not charged in the Complaint or information on which he is tried or therein necessarily included. He has a right to be informed of the nature of the offense with which he is charged before he is put on trial. To convict an accused of an offense higher than that charged in the Complaint or information on which he is tried would constitute unauthorized denial of that right.

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“In this case, although it was shown that the appellant is the common-law husband of the complainant’s mother, the first special qualifying circumstance within the contemplation of paragraph 1, above quoted, was not alleged in the Information under which appellant was arraigned. In People vs. Ambray, the Court held that the failure to allege the fact of relationship between the appellant and the victim in the information for rape is fatal and consequently, bars conviction of its qualified form which is punishable by death. Qualifying circumstances must be properly pleaded in the indictment in order not to violate the constitutional right of the accused to be properly informed of the nature and cause of the accusation against him.” (Pp v. Gabiana)

c.

Jurisdiction of the court is determined by the allegations in the information

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“The jurisdiction of a court is defined by the Constitution or statute. The elements of that definition must appear in the complaint or information so as to ascertain which court has jurisdiction over a case. Hence the elementary rule that the jurisdiction of a court is determined by the allegations in the complaint or informations, and not by the evidence presented by the parties at the trial. xxxxxxxx As early as 1954 we pronounced that "the factor that characterizes the charge is the actual recital of the facts." The real nature of the criminal charge is determined not from the caption or preamble of the informations nor from the specification of the provision of law alleged to have been violated, they being

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b. Qualifying circumstances should be alleged in the information

Room 409 Constitutional Law II Notes based on the Outline and Lecture of Atty. Joan S. Largo Subject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino

conclusions of law, but by the actual recital of facts in the complaint or information. The noble object or written accusations cannot be overemphasized. This was explained in U.S. v. Karelsen: 69 The object of this written accusations was First; To furnish the accused with such a descretion of the charge against him as will enable him to make his defense and second to avail himself of his conviction or acquittal for protection against a further prosecution for the same cause and third, to inform the court of the facts alleged so that it may decide whether they are sufficient in law to support a conviction if one should be had. In order that the requirement may be satisfied, facts must be stated, not conclusions of law. Every crime is made up of certain acts and intent these must be set forth in the complaint with reasonable particularly of time, place, names (plaintiff and defendant) and circumstances. In short, the complaint must contain a specific allegation of every fact and circumstance necessary to constitute the crime charged.” (Lacson v. Executive Secretary) V. Right to a SPEEDY, IMPARTIAL & PUBLIC TRIAL a. WHAT IS SPEEDY TRIAL?  Speedy is not inconsistent with reasonable delay. “the Court finds that said right has not been violated in the case at bar and thus holds that the dismissal of the case as regards private respondents Labo and Floresca is premature and erroneous. "The right of an accused to a speedy trial is guaranteed to him by the Constitution but the same shall not be utilized to deprive the State of a reasonable opportunity of fairly indicting criminals. It secures rights to a defendant but it does not preclude the rights of public justice." (Mercado vs. CFI, et al., 66 Phil. 215; Gunabe, et al. vs. Director of Prisons, 77 Phil. 993; Bermisa vs. Court of Appeals, 92 SCRA 136) The Court is convinced that private complainant's absences at the hearings of the case were in good faith and that he had justifiable and meritorious reasons therefor. Said absences are evidently not capricious, oppressive, nor vexatious to the two accused who had waived their appearance at the trial of the case. It should be remembered that the right to a speedy trial is relative, subject to reasonable delays and postponements arising from illness, medical attention, body operations, as in the instant case where it was satisfactorily proven that private complainant had to undergo eye operations, hospitalization and a medical check-up abroad. The subject case for libel was dismissed on October 15, 1987, some eight and a half months after the information was filed. This period is not such an extended, prolonged or lengthy duration as to cause capricious and vexatious delay. For, speedy trial means one that can be had as soon after indictment is filed as the prosecution can with reasonable diligence prepare for trial (Mercado v. CFI, supra). While accused persons do have rights, many of them choose to forget that the aggrieved also have the same rights”(People v Gines) b. WHAT IS PUBLIC TRIAL?  Public trial means open to public, except in sensitive cases.

d.IS TELEVISED TRIAL PART OF THE RIGHT?  In People vs. Teehankee, Jr., later reiterated in the case of Larranaga vs. court of Appeals, et al., we laid down the doctrine that: "We cannot sustain appellant's claim that he was denied the right to impartial trial due to prejudicial publicity. It is true that the print and broadcast media gave the case at bar pervasive publicity, just like all high profile and high stake criminal trials. Then and now, we rule that the right of an accused to a fair trial is not incompatible to a free press. To be sure, responsible reporting enhances accused's right to a fair trial for, as well pointed out, a responsible press has always been regarded as the criminal field xxx. The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism. “Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The mere fact that the trial of appellant was given a day-to-day, gavel-to-gavel coverage does not by itself prove that the publicity so permeated the mind of the trial judge and impaired his impartiality. For one, it is impossible to seal the minds of members of the bench from pre-trial and other off-court publicity of sensational criminal cases. The state of the

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c. WHAT A PUBLIC TRIAL ASSURES?  *it is the accused way of checking possible abuses of judiciary. “…criminal trials both here and in England had long been presumptively open, thus giving assurance that the proceedings were conducted fairly to all concerned and discouraging perjury, the misconduct of participants, or decisions based on secret bias or partiality.”(Estrada v Desierto)

Room 409 Constitutional Law II Notes based on the Outline and Lecture of Atty. Joan S. Largo Subject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino

art of our communication system brings news as they happen straight to our breakfast tables and right to our bedrooms. These news form part of our everyday menu of the facts and fictions of life. For another, our idea of a fair and impartial judge is not that of a hermit who is out of touch with the world. We have not installed the jury system whose members are overly protected from publicity lest they lose there impartially. xxx xxx xxx. Our judges are learned in the law and trained to disregard off-court evidence and on-camera performances of parties to litigation. Their mere exposure to publications and publicity stunts does not per se fatally infect their impartiality.”(Estrada v Desierto) Note: This is NOT ABSOLUTE EXCEPTION: In cases like, Rape(when the complainant requests), where minors are involved TEST: actual prejudice must be shown to warrant a finding of prejudicial publicity.  “In Martelino, et al. v. Alejandro, et al., we rejected this standard of possibility of prejudice and adopted the test of actual prejudice as we ruled that to warrant a finding of prejudicial publicity, there must be allegation and proof that the judges have been unduly influenced, not simply that they might be, by the barrage of publicity. In the case at a bar, the records do not show that the trial judge developed actual bias against appellants as a consequence of the extensive media coverage of the pretrial and trial of his case. The totality of circumstances of the case does not prove that the trial judge acquired a fixed opinion as a result of prejudicial publicity, which is incapable of change even by evidence presented during the trial. Appellant has the burden to prove this actual bias and he has not discharged the burden.”(Estrada v Desierto) VI. TO CONFRONT WITNESSES & TO COMPULSORY PROCESSES *RIGHT TO CROSS EXAMINATION *CONVICTION CANNOT REST ON AFFIDAVITS NOT TESTIFIED IN COURT “On the matter of the admissibility of the testimony of the medico-legal taken in the first case, involving the three other accused for the death of the same victim, offered in evidence in the case at bar, this Court must declare the same inadmissible. As correctly contended by the defense, because they did not have the opportunity to cross-examine Dr. Baltazar, his testimony cannot be used in evidence against accused-appellant. Indeed, where the opposing party failed to cross-examine a witness, this Court in several cases held: Oral testimony may be taken into account only when it is complete, that is, if the witness has been wholly cross-examined by the adverse party or the right to cross-examine is lost wholly or in part thru the fault of such adverse party. But when cross-examination is not and cannot be done or completed due to causes attributable to the party offering the witness, the uncompleted testimony is thereby rendered incompetent.”(People v. Givena) Note: Criminal case = affidavits must be testified and cross examined by the defense to be used in evidence against the accused.

WHAT IS TRIAL IN ABSENCIA? Trial in absencia is when presence of accused is a DUTY 1. Arraignment and plea 2. During trial, for identification 3. Promulgation of sentence, unless for light offense VI. RIGHT TO COMPULSORY PROCESSES DEFINED: The right to request that witness be subpoenaed and evidence be produced in court. “The 1973 and 1987 Constitutions expanded the right to compulsory process which now includes the right to 28 29 secure the production of evidence in one's behalf. By analogy, U.S. vs. Ramirez which laid down the requisites for compelling the attendance of witnesses, may be applied to this expanded concept. Thus, the

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*TESTIMONY NOT SUBJECTED TO CROSS EXAMINATION ARE EXCLUDED “On the other hand, this Court agrees with accused-appellants that the trial court should not have considered the extrajudicial statement of Edna Crisologo Jacob who was not placed on the witness stand, thus, depriving the defense of its right to cross-examination. The veracity of her statement not having been ascertained, it should not have been given any probative value at all. Be that as it may, her testimony is merely corroborative, and its exclusion will not affect the finding of guilt of accused-appellants.”(People v. Matibag) *RIGHT TO BE PRESENT DURING TRIAL, EXCEPT ON ALLOWED TRIAL IN ABSENTIA

Room 409 Constitutional Law II Notes based on the Outline and Lecture of Atty. Joan S. Largo Subject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino

movant must show: (a) that the evidence is really material; (b) that he is not guilty of neglect in previously obtaining the production of such evidence; (c) that the evidence will be available at the time desired; and (d) that no similar evidence could be obtained.”(People v. Chua) REQUISITES: 1. Evidence is really material 2. That he is not guilty of neglect in previously obtaining the production of such evidence 3. That the evidence will be available at the time desired 4. That no similar evidence could be obtained Note: in People v. Chua, accused was not denied her right to compulsory processes because production of the records which were the basis in issuing the POEA Certification dated February 3, 1994, would not in any way alter the undisputed fact that appellant was not issued a license until then. Hence evidence is really not material.

X. RIGHT AGAINST DOUBLE JEOPARDY Sec. 21. No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act. The right against double jeopardy prohibits the prosecution again of any person for a crime of which he has previously been acquitted or convicted. The object is to set the effects of the first prosecution forever at rest, assuring the accused that he shall not thereafter be subjected to the dangers and anxiety of a second charge against him for the same offense. [Cruz] REQUISITES: To constitute double jeopardy, there must be: (1) a valid complaint or information; (2) filed before a competent court; (3) to which the defendant has pleaded; and (4) of which he had been previously acquitted or convicted or which was dismissed or otherwise terminated without his express consent. A. Complaint or Information A prosecution based on an invalid complaint or information cannot be lead to a valid judgment and hence will not place the accused under double jeopardy. Where the original information is defective and the case is dismissed on the motion of the accused, it may be validly renewed with the filing of a corrected information. But if, without the express consent of the accused, the information is dismissed on the ground that it is defective when it is not so in fact, another prosecution based on the same allegation will constitute double jeopardy. [Cruz]

A court without jurisdiction cannot render a valid judgment, hence, a person charged before it cannot plead double jeopardy when tried anew for the same offense by a competent court, as the first prosecution never placed him in jeopardy. [Cruz] C. Valid Plea A defendant is never placed under jeopardy until after he shall have pleaded to the charge against him during the arraignment. Thus, where a defective complaint was dismissed before the accused had pleaded and an amended complaint was later filed, his plea of double jeopardy was rejected because he had not been exposed to danger under the first indictment. [Cruz] D. Termination of the Case

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B. Competent Court

Room 409 Constitutional Law II Notes based on the Outline and Lecture of Atty. Joan S. Largo Subject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino

How is the first jeopardy terminated in a manner that satisfies the element of the defense of double jeopardy? (1) By judgment of acquittal Acquittal is immediately executory upon rendition and entitles the accused to immediate release. (2) By judgment of conviction The judgment of conviction is appealable within 15 days but becomes final if the convict serves his sentence even before the expiration of the period. (3) By dismissal on the merits or without the express consent of the accused As a General Rule, a dismissal with the express consent of the accused will not bar another prosecution for the same offense, as the said consent is considered a waiver of his right against double jeopardy. The consent, to be effective, must be express and this excludes mere silence or failure of the accused to object to the dismissal. Exceptions: The defense of double jeopardy will be available to the accused where the dismissal of the prosecution against him, even with his express consent, was based on: (1) denial of his right to speedy trial; or (2) insufficiency of the evidence of the prosecution

People v. Obasiana, L-24447, June 29, 1968 Facts: On November 22, 1964, barely a day after the occurence of the alleged crime, Erlinda Dollente, the 14year old victim, and her parents, Ciriaco Dollente and Carmelita Lureta, filed in the Municipal Court of Balungao, Pangasinan a complaint for rape with robbery. After the case was remanded to the Court of First Instance of Pangasinan for further proceedings, the assistant provincial fiscal filed an information for rape against the accused, embodying the allegations of the above complaint, with an additional averment that the offense was committed "with lewd designs". The accused pleaded not guilty upon arraignment, and his counsel moved for the dismissal of the case, contending that the complaint was fatally defective for failure to allege "lewd designs" and that the subsequent information filed by the fiscal which averred "lewd designs" did not cure the jurisdictional infirmity. The court a quo granted the motion and ordered dismissal of the action, ruling that "the failure of the complaint filed by the offended party to allege that the acts committed by the accused were with 'lewd designs' does not give this Court jurisdiction to try the case." From this order, the fiscal brought the instant appeal.

The accused, in his motion to dismiss, as well as the trial judge, in his order of dismissal, rely basically on the ruling in People vs. Gilo (L-18202, April 30, 1964). In the case which involved a prosecution for acts of lasciviousness this Court, in passing, opined that "lewd design" is ... an indispensable element of all crimes against chastity, such as abduction, seduction and rape, including acts of lasciviousness ... an element that characterizes all crimes against chastity, apart from the felonious or criminal intent of the offender, and such element must be always present in order that they may be considered in contemplation of law. Nothing in the foregoing statement can be reasonably interpreted as requiring an explicit allegation of "lewd design" in a complaint for rape. Lascivious intent inheres in rape and the unchaste design is manifest in the very act itself…the carnal knowledge of a woman through force or intimidation, or when the woman is deprived of reason or otherwise unconscious, or when the woman is under twelve years of age.

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Issue 1: WON "lewd designs" an indispensable element which should be alleged in the complaint?

Room 409 Constitutional Law II Notes based on the Outline and Lecture of Atty. Joan S. Largo Subject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino

It is clear that the complaint here satisfies the requirements of legal sufficiency of an indictment for rape as it unmistakably alleges that the accused had carnal knowledge of the complainant by means of violence and intimidation. We therefore hold that the trial judge erred in dismissing the case on the proffered grounds that the complaint was defective for failure to allege "lewd design" and, as a consequence of such infirmity, that the court a quo did not acquire jurisdiction over the case. The error of the trial judge was in confusing the concept of jurisdiction with that of insufficiency in substance of an indictment. Issue 2: WON the appeal placed the accused in double jeopardy? Ruling: No. The act of the defendant in moving for the dismissal of the case constitutes a waiver of the right to avail of the defense of double jeopardy, insofar as it applies to dismissals which do not amount to acquittal or dismissal of the case on the merits. The Supreme Court applied the Salico Doctrine. In that case, the provincial fiscal appealed from the order of the trial court dismissing, upon motion of the defendant, an indictment for homicide, on the ground that the prosecution had failed to prove that the crime was committed within the territorial jurisdiction of the trial court of the municipality of Victorias, Negros Occidental. This Court held that the dismissal was erroneous because the evidence on record showed that the crime was committed in the town of Victorias and the trial judge should have taken judicial notice that the said municipality was included within the province of Negros Occidental. Therefore the offense charged was committed within the jurisdiction of the court of first instance of the said province. In ruling that the appeal by the Government did not put the accused in peril of a second jeopardy, this Court stressed that with "the dismissal of the case by the court below upon motion of the defendant, the latter has not been in jeopardy," and "assuming, arguendo, that the defendant had been already in jeopardy in the court below and would be placed in double jeopardy by the appeal, the defendant has waived his constitutional right not to be put in danger of being convicted twice for the same offense." Mr. Justice Felicisimo Feria, speaking for the majority, reasoned that .... when the case is dismissed with the express consent of the defendant, the dismissal will not be a bar to another prosecution for the same offense; because, his action in having the case dismissed constitutes a waiver of his constitutional right or privilege, for the reason that he thereby prevents the court from proceeding to the trial on the merits and rendering a judgment of conviction against him.

Esmena v. Pogoy, L-54110, Feb. 20, 1981 Facts: Petitioners Generoso Esmeña , et. al were charged with grave coercion in the city court of Cebu City for having allegedly forced Reverend Father Tomas Tibudan of the Jaro Cathedral, Iloilo City to withdraw the sum of five thousand pesos from the bank and to give that amount to the accused because the priest lost it in a game of cards.

In the meantime, the fiscal lost his record of the case. So, the hearing scheduled on June 18, 1979 was cancelled at his instance. On that date, respondent judge issued an order setting the trial "for the last time on August 16, 1979, at 8:30 o'clock in the morning." When the case was called on that date, the fiscal informed the court that the private prosecutor received from complainant Father Tibudan a telegram stating that he was sick. The counsel for petitioners Esmeña and Alba opposed the cancellation of the hearing. They invoked the right of the accused to have a speedy trial. Respondent judge provisionally dismissed the case as to the four accused who were present because it "has been dragging all along and the accused are ready for the hearing" but the fiscal was not ready with his witness. On September 12, 1979, the fiscal filed a motion for the revival of the case, which was granted by the judge. On October 24, 1979, Esmeña and Alba filed a motion to dismiss the case on the ground of double jeopardy.

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The two, of the accused pleaded not guilty at their arraignment. However, no trial was held after the arraignment because complainant Father Tibudan requested the transfer of the hearing to another date.

Room 409 Constitutional Law II Notes based on the Outline and Lecture of Atty. Joan S. Largo Subject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino

Rule: The Supreme Court held that the petitioners were placed in jeopardy by the provisional dismissal of the grave coercion case. The rule on double jeopardy (non bis in Idem or not twice for the same) is found in section 22, Article IV Bill of Rights) of the Constitution which provides that "no person shall be twice put in jeopardy of punishment for the same offense." This is complemented by Rule 117 of the Rules of Court which provides as follows: SEC. 9. Former conviction or acquittal or former jeopardy. When a defendant shall have been convicted or acquitted, or the case against him dismissed or otherwise terminated without the express consent of the defendant, by a court of competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction, and after the defendant had pleaded to the charge, the conviction or acquittal of the defendant or the dismissal of the case shall be a bar to another prosecution for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information. In order that legal jeopardy may exist, there should be (a) a valid complaint or information (b) before a court of competent jurisdiction and (c) the accused has been arraigned and has pleaded to the complaint or information. When these three conditions are present, the acquittal or conviction of the accused or the dismissal or termination of the case without his express consent constitutes res judicata and is a bar to another prosecution for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is included therein. Respondent judge on his own volition provisionally dismissed the case. The petitioners did not expressly manifest their conformity to the provisional dismissal. Hence, the dismissal placed them in jeopardy. The provisional dismissal would not have place the petitioners in jeopardy if respondent judge had taken the precaution of making sure that the dismissal was with their consent. In this case, it is not very clear that the petitioners consented to the dismissal of the case. It is the practice of some judges before issuing an order of provisional dismissal in a case wherein the accused had already been arraigned to require the accused and his counsel to sign the minutes of the session or any available part of the record to show the conformity of the accused or his lack of objection to the provisional dismissal. The judge specifies in the order of provisional dismissal that the accused and his counsel signified their assent thereto. That procedure leaves no room for doubt as to the consent of the accused and precludes jeopardy from attaching to the dismissal. People v. Baladjay, 113 SCRA 284

Issue: Whether or not the trial court committed a grave abuse of discretion in reinstating the four criminal cases after it had dismissed them on the ground of failure to prosecute and the constitutional right of the accused to a speedy trial. Rule: We hold that the four dismissal orders, although provisional in character, which were issued upon motion of the accused and on the basis of his right to a speedy trial placed him in jeopardy. The dismissal was equivalent to an acquittal. The reinstatement of the cases would place him in double jeopardy (Esmeña vs. Pogoy, G. R. No. 54110, February 20, 1981, 102 SCRA 861, 867). The rule that the dismissal of a criminal case upon defendant's motion will not be a bar to another prosecution for the same offense as said dismissal is not without the express consent of the defendant, has no application to a case where the dismissal is predicated on the right of a defendant to a speedy trial.

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Facts: Four criminal cases were filed against Sergio Baladjay and others in the municipal court (now city court) of Ozamiz City, for illegal possession of instruments for committing counterfeiting or falsification, 2 counts of estafa, and for theft. The judge dismissed the case for failure of the prosecution to finish the presentation of its evidence and on the basis of accused right to speedy trial. The case had been pending for more than eleven years.

Room 409 Constitutional Law II Notes based on the Outline and Lecture of Atty. Joan S. Largo Subject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino

The "provisional" dismissal of a criminal case for failure to prosecute ... is not truly a dismissal but an acquittal because the prosecution failed to prove the case when the time therefor came. A judgment of acquittal becomes final immediately after promulgation and cannot thus be recalled thereafter for correction or amendment It is relevant to note that because Baladjay was denied a speedy trial, he would even be entitled to relief in a mandamus proceeding to compel the dismissal of the informations (Conde vs. Rivera, 45 Phil. 650). The lower court's order of April 20, 1966, reinstating the four criminal cases against Sergio Baladjay, is reversed and set aside and its four orders dated January 24, 1966; provisionally dismissing the said cases, are affirmed. Almario v. CA, 355 SCRA 1 Facts: Petitioner is one of the accused in a criminal case for estafa thru falsification of public document, and for estafa, with respondent RCBC as the offended party in both cases. After petitioner’s arraignment, pre-trial was held, which was terminated. Thereafter, the cases were scheduled for continuous trial in December 1994, and in January and February 1993, but the hearings were cancelled because the Presiding Judge of the court was elevated to CA and no trial judge was immediately appointed. The hearing set for June 21, 1995, was postponed for lack of proof of notice to all the accused and their counsel. The hearing on July 17, 1995, upon request of private prosecutor, and without objection on the part of petitioner’s counsel, postponed to July 24, 1995. However, for lack of proof of service of notice upon petitioner, the hearing set for July 24, 1995, was likewise cancelled and the cases were reset for trial. On September 8, 1995, private complainant failed to appear despite due notice. Hence, upon motion of petitioner;s counsel, respondent court ordered the dismissal of the case for failure to prosecute and considering that accused is entitled to a speedy trial. However, upon motion of the private prosecutor and despite the opposition of petitioner, respondent court reconsidered the Order of September 8, 1995 stating in part that “... there has been no vexations, capricious and oppressive delays, or unjustified postponements of the trial, or a long time is allowed to (e) lapse without the party having his case tried which would constitute, according to the above case, violation of the right of the accused to speedy trial… There were only three settings from the date of termination of the pre-trial for the prosecution to present evidence and the same were postponed with valid reasons.” “….the dismissal, therefore, in the Order dated September 8, 1995, did not result in the acquittal of the accused since the right of the accused to speedy trial has not been violated, and its dismissal having been made upon the motion of the accused there is no double jeopardy.” Petitioner appealed with CA but the same was denied. Hence, this petition.

Ruling: Article III, Section 21 of the 1987 Constitution provides: Section 21. No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act. Section 7, Rule 117 of the Revised Rules of Court provides: Section 7. Former conviction or acquittal; double jeopardy. - When an accused has been convicted or acquitted, or the case against him dismissed or otherwise terminated without his express consent by a court of competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in form and substance to

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Issue: WON double jeopardy had set in so that petitioner's constitutional right against such jeopardy had been violated.

Room 409 Constitutional Law II Notes based on the Outline and Lecture of Atty. Joan S. Largo Subject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino

sustain a conviction and after the accused had leaded to the charge, the conviction or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information. x x x Clearly, jeopardy attaches only (1) upon a valid indictment, (2) before a competent court, (3) after arraignment, (4) when a valid plea has been entered, and (5) when the defendant was convicted or acquitted, or the case was dismissed or otherwise terminated without the express consent of the accused. In the cases at bar, the order of dismissal based on a violation of the right to speedy trial was made upon motion by counsel for petitioner before the trial court. It was made at the instance of the accused before the trial court, and with his express consent. Generally, the dismissal of a criminal case resulting in acquittal made with the express consent of the accused or upon his own motion will not place the accused in double jeopardy. However, this rule admits of two exceptions, namely: insufficiency of evidence and denial of the right to speedy trial.9 Double jeopardy may attach when the proceedings have been prolonged unreasonably, in violation of the accused's right to speedy trial. Here we must inquire whether there was unreasonable delay in the conduct of the trial so that violation of the right to speedy trial of the accused, herein petitioner, resulted. For it must be recalled that in the application of the constitutional guaranty of the right to speedy disposition of cases, particular regard must also be taken of the facts and circumstances peculiar to each case. Both the trial court and the appellate court noted all in all, there were only three re-setting of hearing dates, all of which were grounded on valid grounds. There being no oppressive delay in the proceedings, and no postponements unjustifiably sought, we concur with the conclusion reached by the Court of Appeals that petitioner's right to speedy trial had not been infringed. Where the right of the accused to speedy trial had not been violated, there was no reason to support the initial order of dismissal. It follows that petitioner cannot invoke the constitutional right against double jeopardy when that order was reconsidered seasonably. For as petitioner's right to speedy trial was not transgressed, this exception to the fifth element of double jeopardy - that the defendant was acquitted or convicted, or the case was dismissed or otherwise terminated without the express consent of the accused - was not met. The trial court's initial order of dismissal was upon motion of petitioner's counsel, hence made with the express consent of petitioner. That being the case, despite the reconsideration of said order, double jeopardy did not attach. As this Court had occasion to rule in People vs. Tampal, (244 SCRA 202) reiterated in People vs. Leviste,17 where we overturned an order of dismissal by the trial court predicated on the right to speedy trial -

Both the trial court and the Court of Appeals were thus not in error when they allowed reinstatement of the cases against petitioner. WHEN WILL SECOND OR DOUBLE JEOPARDY SET IN? “No person shall be twice put in jeopardy of punishment for the same offense.” A. When you are prosecuted for the Same Offense In order to determine whether the 2 charges are identical, one test used is the Same Evidence Test: Whether the evidence needed in the one case will support the conviction in the other.

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……..It is true that in an unbroken line of cases, we have held that the dismissal of cases on the ground of failure to prosecute is equivalent to an acquittal that would bar further prosecution of the accused for the same offense. It must be stressed, however, that these dismissals were predicated on the clear right of the accused to speedy trial. These cases are not applicable to the petition at bench considering that the right of the private respondents to speedy trial has not been violated by the State. For this reason, private respondents cannot invoke their right against double jeopardy.

Room 409 Constitutional Law II Notes based on the Outline and Lecture of Atty. Joan S. Largo Subject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino

Illustration: For the same act of issuing a bouncing check, accused was prosecuted first under Section 1 of BP Blg. 22 and next under Art. 315, par 2 (d) of the RPC. He pleads double jeopardy. Decide. The two laws (not merely ordinance) punish 2 distinct offenses. The evidence required to prove one offense is not the same as the evidence required to prove the other. Hence, there is no double jeopardy. (Ada v. Judge Virola, G.R. No. 82346-47, April 17, 1989.)

People v. Quijada, 259 SCRA 191, April 15, 1998 Facts: Accused-appellant Daniel Quijada was convicted of the two offenses separately charged in two informations, viz., murder under Article 248 of the Revised Penal Code (For CRIMINAL CASE NO. 8178: Accused, being then armed with a .38 cal. revolver, attack, assault and shoot Diosdado Iroy,with the use of the said firearm which resulted to his death) and illegal possession of firearm in its aggravated from under P.D. No. 1866 (For CRIMINAL CASE NO. 8179: Accused, in his possession, custody and control a firearm (hand gun) with ammunition, without first obtaining the necessary permit or license to possess the said firearm from competent authorities which firearm was carried by the said accused outside of his residence and was used by him in committing the crime of Murder with Diosdado Iroy). Issue: Whether or not there is a violation of the constitutional proscription against double jeopardy if an accused is prosecuted murder and for aggravated illegal possession of firearm Ruling: The Supreme Court confirmed and applied the doctrine laid down in the case of People v. Tac-an, stating that these are separate offenses, with the first punished under the Revised Penal Code and the second under a special law; hence, the constitutional bar against double jeopardy will not apply. It is elementary that the constitutional right against double jeopardy protects one against a second or later prosecution for the same offense, and that when the subsequent information charges another and different offense, although arising from the same act or set of acts, there is no prohibited double jeopardy. In the case at bar, it appears to us quite clear that the offense charged in Criminal Case No. 4007 is that of unlawful possession of an unlicensed firearm penalized under a special statute, while the offense charged in Criminal Case No. 4012 was that of murder punished under the Revised Penal Code. It would appear self-evident that these two (2) offenses in themselves are quite different one from the other, such that in principle, the subsequent filing of Criminal Case No. 4012 is not to be regarded as having placed appellant in a prohibited second jeopardy. The appeal was dismissed and the challenged decision of 30 September 1993 of Branch 1 of the Regional Trial Court of Bohol finding accused-appellant DANIEL QUIJADA y CIRCULADO guilty beyond reasonable doubt of the crime of murder in Criminal Case No. 8178 and of illegal possession of firearm in its aggravated form in Criminal Case No. 8179 was AFFIRMED.

Facts: On February 7, 1989, respondent Presiding Judge of the Regional Trial Court of Pangasinan (Branch 39) rendered a Joint Decision in Criminal Cases Nos. L-3553 and L-3554, the dispositive portion of which is as follows: ……WHEREFORE, judgment is hereby rendered finding accused Eduardo Cuison guilty of the crime of double homicide, beyond reasonable doubt and therefore sentences him to suffer imprisonment from 6 years and 1 day of [p]rision [m]ayor as [m]inimum to 12 years and 1 day of [r]eclusion [t]emporal as [m]aximum, for each offense, with the accessories provided by law and to pay the costs. Accused is also ordered to indemnify the heirs of Rafael Sapigao the amount of P30,000.00 and the heirs of Rulo Castro also the amount of P30,000.00 without subsidiary imprisonment in case of insolvency.

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Cuison v. CA, 289 SCRA 159, April 15, 1998

Room 409 Constitutional Law II Notes based on the Outline and Lecture of Atty. Joan S. Largo Subject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino

On appeal to the Court of Appeals, the said decision was affirmed with the modification that the civil indemnity was increased to P50,000.00. (Decision rendered on July 30, 1991). The accused elevated the decision on a petition for review docketed as G.R. Nos. 108985-86 but the Supreme Court denied the said petition on December 1, 1993. The case was remanded to the Regional Trial Court of Pangasinan (Br. 39) for promulgation of the decision. However, respondent Judge promulgated [on April 4, 1995] the decision of [the Court of Appeals] only with respect to the modified civil liability of the accused but did not commit the accused to jail to commence service of his sentence. The CA clarified the ambiguity in the dispositive portion through its Resolution dated August 17, 1995 which categorically stated that the court affirmed the decision of the respondent court with respect to the penalty of imprisonment imposed upon the accused. Issue: WON the promulgation of conviction is barred by Double Jeopardy. Ruling: Petitioner submits that the trial court's promulgation of the CA Decision on April 4, 1995 "cannot be set aside and a second promulgation be ordered" because to do so would contravene the prohibition against double jeopardy. He contends that the judgment as promulgated on April 4, 1995 has become final and that courts have thus lost jurisdiction over the case. To substantiate a claim of double jeopardy, the following must be proven: (1) a first jeopardy must have attached prior to the second; (2) the first jeopardy must have been validly terminated; (3) the second jeopardy must be for the same offense, or the second offense includes or is necessarily included in the offense charged in the first information, or is an attempt to commit the same or is a frustration thereof. And legal jeopardy attaches only: (a) upon a valid indictment; (b) before a competent court; (c) after arraignment; (d) [when] a valid plea [has] been entered; and (e) the case was dismissed or otherwise terminated without the express consent of the accused Petitioner contends that "the promulgation by Judge Ramos on April 4, 1995 of the Respondent Court's decision of June 30, 1991 by reading its dispositive portion has effectively terminated the criminal cases against the petitioner . . . ." In other words, petitioner claims that the first jeopardy attached at that point.

As earlier observed, the promulgation of the CA Decision was not complete. In fact and in truth, the promulgation was not merely incomplete; it was also void. In excess of its jurisdiction, the trial judge rendered a substantially incomplete promulgation on April 4, 1995, and he repeated his mistake in his April 12, 1996 Order. We emphasize that grave abuse of discretion rendered the aforementioned act of the trial court void. Since the criminal cases have not yet been terminated, the first jeopardy has not yet attached. Hence, double jeopardy cannot prosper as a defense. 29 We must stress that Respondent Court's questioned Decision did not modify or amend its July 30, 1991 Decision. It merely ordered the promulgation of the judgment of conviction and the full execution of the penalty it had earlier imposed on petitioner. The constitutional proscription of double jeopardy is not violated by a Court of Appeals order requiring the trial court to promulgate a decision sentencing the accused to imprisonment even if, earlier, the same

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The Court is not persuaded. As a rule, a criminal prosecution includes a civil action for the recovery of indemnity. Hence, a decision in such case disposes of both the criminal as well as the civil liabilities of an accused. Here, trial court promulgated only the civil aspect of the case, but not the criminal.

Room 409 Constitutional Law II Notes based on the Outline and Lecture of Atty. Joan S. Largo Subject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino

decision has been promulgated in regard only to the payment of the modified civil indemnity arising from the same criminal act. The promulgation of only one part of the decision, i.e., the liability for civil indemnity, is not a bar to the subsequent promulgation of the other part, the imposition of the criminal accountability.

“If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act.” B. When you are prosecuted under an Ordinance and a Law for the Same Act This applies if the offenses charged are not the same, owing to the fact that one constitutes a violation of an ordinance and the other a violation of a statute. People v. Relova, 148 SCRA 292 Facts: On 1 February 1975, members of the Batangas City Police together with personnel of the Batangas Electric Light System, searched and examined the premises of the Opulencia Carpena Ice Plant and Cold Storage owned and operated by the private respondent Manuel Opulencia. The police discovered that electric wiring, devices and contraptions had been installed, without the necessary authority from the city government. These electric devices and contraptions were, in the allegation of the petitioner "designed purposely to lower or decrease the readings of electric current consumption in the electric meter of the said electric [ice and cold storage] plant." On 24 November 1975, an Assistant City Fiscal of Batangas City filed before the City Court of Batangas City an information against Manuel Opulencia for violation of Ordinance No. 1, Series of 1974, Batangas City (unauthorized installations of electric wirings and devices to lower or decrease the consumption of electric fluid). The information was dismissed on the ground of prescription, having been filed more than two months after the discovery of the offense. On 20 April 1976, the Acting City Fiscal of Batangas City filed before the Court of First Instance of Batangas, Branch 11, another information against Manuel Opulencia, this time for theft of electric power under Article 308 in relation to Article 309, paragraph (1), of the Revised Penal Code. The above information was docketed as Criminal Case No. 266 before the Court of First Instance of Batangas, Branch II. Before he could be arraigned thereon, Manuel Opulencia filed a Motion to Quash, dated 5 May 1976, alleging that he had been previously acquitted of the offense charged in the second information and that the filing thereof was violative of his constitutional right against double jeopardy. By Order dated 16 August 1976, the respondent Judge granted the accused's Motion to Quash and ordered the case dismissed.

Ruling: No, the respondent judge did not err in dismissing the case on the ground that double jeopardy has set in. The petitioner concludes that: The unauthorized installation punished by the ordinance [of Batangas City] is not the same as theft of electricity [under the Revised Penal Code]; that the second offense is not an attempt to commit the first or a frustration thereof and that the second offense is not necessarily included in the offense charged in the first information. The above arguments made by the petitioner are of course correct. This is clear both from the express terms of the constitutional provision involved, which reads as follows: No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act. (Emphasis supplied; Article IV (22), 1973 Constitution) and from our case law on this point.

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Issue: WON the respondent judge erred in dismissing the case on the ground that there has been double jeopardy?

Room 409 Constitutional Law II Notes based on the Outline and Lecture of Atty. Joan S. Largo Subject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino

The basic difficulty with the petitioner's position is that it must be examined, not under the terms of the first sentence of Article IV (22) of the 1973 Constitution, but rather under the second sentence of the same section. The first sentence of Article IV (22) sets forth the general rule: the constitutional protection against double jeopardy is not available where the second prosecution is for an offense that is different from the offense charged in the first or prior prosecution, although both the first and second offenses may be based upon the same act or set of acts. The second sentence of Article IV (22) embodies an exception to the general proposition: the constitutional protection, against double jeopardy is available although the prior offense charged under an ordinance be different from the offense charged subsequently under a national statute such as the Revised Penal Code, provided that both offenses spring from the same act or set of acts. This was made clear sometime ago in Yap vs. Lutero. Put a little differently, where the offenses charged are penalized either by different sections of the same statute or by different statutes, the important inquiry relates to the identity of offenses charge: the constitutional protection against double jeopardy is available only where an Identity is shown to exist between the earlier and the subsequent offenses charged. In contrast, where one offense is charged under a municipal ordinance while the other is penalized by a statute, the critical inquiry is to the identity of the acts which the accused is said to have committed and which are alleged to have given rise to the two offenses: the constitutional protection against double jeopardy is available so long as the acts which constitute or have given rise to the first offense under a municipal ordinance are the same acts which constitute or have given rise to the offense charged under a statute. The question may be raised why one rule should exist where two offenses under two different sections of the same statute or under different statutes are charged, and another rule for the situation where one offense is charged under a municipal ordinance and another offense under a national statute. If the second sentence of the double jeopardy provision had not been written into the Constitution, conviction or acquittal under a municipal ordinance would never constitute a bar to another prosecution for the same act under a national statute. An offense penalized by municipal ordinance is, by definition, different from an offense under a statute. The two offenses would never constitute the same offense having been promulgated by different rule-making authorities, though one be subordinate to the other, and the plea of double jeopardy would never lie. The discussions during the 1934-1935 Constitutional Convention show that the second sentence was inserted precisely for the purpose of extending the constitutional protection against double jeopardy to a situation which would not otherwise be covered by the first sentence. DOCTRINE OF SUPERVENING EVENT (This is an exception to the requirements of sameness of the offense)

Sec. 7, Rule 117, Rules of Court: …the conviction of the accused shall not be a bar to another prosecution for an offense which necessarily includes the offense charged in the former complaint or information under the following instances: (1) The graver offense developed due to supervening facts arising from the same act or omission constituting the former charge; (2) The facts constituting the graver charge became known or were discovered only after the filing of the former complaint or information, or (3) The plea of guilty to the lesser offense was made without the consent of the prosecutor and of the offended party except as provided in Sec. 1(f) of Rule 116. Melo v. People, 85 Phil 766 Facts: Petitioner Conrado Melo was charged in the Court of First Instance of Rizal, on December 27, 1949, with frustrated homicide, for having allegedly inflicted upon Benjamin Obillo, several serious wounds on different parts of the body, requiring medical attendance for a period of more than 30 days, and incapacitating him from performing his habitual labor for the same period of time. December 29, 1949, at eight o'clock in the morning, the accused pleaded not guilty to the offense charged, and at 10:15 in the evening of the same day Benjamin Obillo died from his wounds.

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Under the doctrine of supervening event, the accused may be prosecuted for another offense if a subsequent development changes the character of the first indictment under which he may have already been charged or convicted.

Room 409 Constitutional Law II Notes based on the Outline and Lecture of Atty. Joan S. Largo Subject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino

Evidence of death was available to the prosecution only on January 3, 1950, and on the following day, January 4, 1950, an amended information was filed charging the accused with consummated homicide. The accused filed a motion to quash the amended information alleging double jeopardy, motion that was denied by the respondent court. Ruling: The protection of the Constitution inhibition is against a second jeopardy for the same offense, the only exception being, as stated in the same Constitution, that "if an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act." The phrase same offense, under the general rule, has always been construed to mean not only the second offense charged is exactly the same as the one alleged in the first information, but also that the two offenses are identical. There is identity between the two offenses when the evidence to support a conviction for one offense would be sufficient to warrant a conviction for the other. This so called "same-evidence test" which was found to be vague and deficient, was restated by the Rules of Court in a clearer and more accurate form. Under said Rules there is identity between two offenses not only when the second offense is exactly the same as the first, but also when the second offense is an attempt to commit the first or a frustration thereof, or when it necessary includes or is necessarily included in the offense charged in the first information. (Rule 113, sec. 9) In this connection, an offense may be said to necessarily include another when some of the essential ingredients of the former as alleged in the information constitute the latter. And viceversa, an offense may be said to be necessarily included in another when all the ingredients of the former constitute a part of the elements constituting the latter (Rule 116, sec. 5.) In other words, one who has been charged with an offense cannot be again charged with the same or identical offense though the latter be lesser or greater than the former. This rule of identity does not apply, however when the second offense was not in existence at the time of the first prosecution, for the simple reason that in such case there is no possibility for the accused, during the first prosecution, to be convicted for an offense that was then inexistent. Thus, where the accused was charged with physical injuries and after conviction the injured person dies, the charge for homicide against the same accused does not put him twice in jeopardy. Accordingly, an offense may be said to necessarily include or to be necessarily included in another offense, for the purpose of determining the existence of double jeopardy, when both offenses were in existence during the pendency of the first prosecution, for otherwise, if the second offense was then inexistence, no jeopardy could attach therefore during the first prosecution, and consequently a subsequent charge for the same cannot constitute second jeopardy. Petition is denied, and the respondent court may proceed to the trial of the criminal case under the amended information.

XI. EX POST FACTO LAW AND BILL OF ATTAINDER

a. Ex Post Facto law: Indicators i. Makes criminal act which when done was not punished ii. Aggravates a crime iii. Inflicts greater punishment iv. Alters rules on evidence and receives less testimony to convict v. Imposes deprivation of rights for something which when done was lawful vi. Deprives accused of legal protection, (such as double jeopardy, proclamation of amnesty.) Note: 1. It is criminal in character 2. has any of the above indicators 3. retroactive to the prejudice and disadvantage of the accused GR: Ex post facto law prohibits only retrospective PENAL LAWS. A law is penal when it prescribes a criminal penalty imposable in a criminal trial.

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Section 22. No ex post facto law or bill of attainder shall be enacted.

Room 409 Constitutional Law II Notes based on the Outline and Lecture of Atty. Joan S. Largo Subject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino

EXC: ADMINISTRATIVE PROCEEDING- if it prescribes a burden equivalent to a criminal penalty (e.g. disqualification from the practice of a profession) CRIMINAL PROCEDURE- when the law alters the legal rules of evidence or mode of trial d. Definition of a Bill of Attainder A bill of attainder is a legislative act which inflicts punishment without trial. Its essence is the substitution of a legislative for a judicial determination of guilt. (pp v. ferrer) Xxx it is only when a statute applies either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial does it become a bill of attainder. defined a bill of attainder as 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. This last element, the total lack of court intervention in the finding of guilt and the determination of the actual penalty to be imposed, is the most essential (misolas v. panga) b. Is the Anti-Subversion law a bill of attainder? No. No one is made to suffer under this law except after conviction in a trial by a proper court. (Pp v. Ferrer) c. Bill of Pains -imposes penalty lower than capital punishment d. Rationale for prohibition - prohibited because it is a usurpation of the power of the court Note: Essential elements 1. There must be a law 2. The law imposes a penal burden on a named individual or easily ascertainable members of a group 3. The penal burden is imposed directly by the law without judicial trial.

XII. PRIVILEGE OF WRIT OF HABEAS CORPUS Section 15. The privilege of the writ of habeas corpus shall not be suspended except in cases of invasion or rebellion, when the public safety requires it. a. Writ of Habeas Corpus: Definition Writ directed to the person detaining another, commanding him to produce the body of the prisoner at a designated time and place, with the day and cause of his capture and detention, to do, submit to, and receive whatever the court or judge awarding the writ shall consider in that behalf.

c. What is suspended the writ or the privilege? The writ is never suspended. It always issues as a matter of course. What is suspended is the PRIVILEGE of the writ, i.e. once the officer making the return shows to the court that the person detained is being detained for an offense covered by the suspension, the court may not inquire any further. d. When may it be suspended? (1) In existence of actual invasion or rebellion (2) When public safety requires it e. Does the suspension of the privilege also suspend the right to bail? No. The right to bail shall not be impaired even if the privilege of writ of habeas corpus has been suspended. The accused can still apply for bail because if it is a matter of discretion, it is the obligation of the prosecution to show that the evidence of guilt is strong. Note:

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b. Privilege of the writ of habeas corpus It is the right to have an immediate determination of the legality of the deprivation of the deprivation of physical liberty.

Room 409 Constitutional Law II Notes based on the Outline and Lecture of Atty. Joan S. Largo Subject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino

-there should be first an actual deprivation of liberty to avail of this remedy -also known as “writ of liberty”

XIII. LIBERTY OF TRAVEL AND ABODE Section 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law. “The right to change abode and travel within the Philippines, being invoked by petitioner, are not absolute rights. Section 6, Article III of the 1987 Constitution states: The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law. The order of the Court of Appeals releasing petitioner on bail constitutes such lawful order as contemplated by the 23 above provision. The condition imposed by the Court of Appeals is simply consistent with the nature and function of a bail bond, which is to ensure that petitioner will make himself available at all times whenever the Court requires his presence. Besides, a closer look at the questioned condition will show that petitioner is not prevented from changing abode; he is merely required to inform the court in case he does so. (Yap v. CA) Note: Limitation for liberty of abode- lawful order of the court Limitation for right to travel- 1. national security, 2. public safety, 3. public health, as maybe provided by law

XIV. RIGHT TO INFORMATION

“The right of access to information ensures that these freedoms are not rendered nugatory by the government's monopolizing pertinent information. For an essential element of these freedoms is to keep open a continuing dialogue or process of communication between the government and the people. It is in the interest of the State that the channels for free political discussion be maintained to the end that the government may perceive and be responsive to the people's will. Yet, this open dialogue can be effective only to the extent that the citizenry is informed and thus able to formulate its will intelligently. Only when the participants in the discussion are aware of the issues and have access to information relating thereto can such bear fruit. The right to information is an essential premise of a meaningful right to speech and expression. But this is not to say that the right to information is merely an adjunct of and therefore restricted in application by the exercise of the freedoms of speech and of the press. Far from it. The right to information 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 government. Yet, like all the constitutional guarantees, the right to information is not absolute. As stated in Legaspi, the people's right to information is limited to "matters of public concern," and is further "subject to such limitations as may be provided by law." Similarly, the State's policy of full disclosure is limited to "transactions involving public interest," and is "subject to reasonable conditions prescribed by law." Hence, before mandamus may issue, it must be clear that the information sought is of "public interest" or "public concern," and is not exempted by law from the operation of the constitutional guarantee. XXXXXXXXXXX In fine, petitioners are entitled to access to the documents evidencing loans granted by the GSIS, subject to reasonable regulations that the latter may promulgate relating to the manner and hours of examination, to the end that damage to or loss of the records may be avoided, that undue interference with the duties of the custodian of the records may be prevented and that the right of other persons entitled to inspect the records may be insured. XXXXX

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Section 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.

Room 409 Constitutional Law II Notes based on the Outline and Lecture of Atty. Joan S. Largo Subject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino

Although citizens are afforded the right to information and, pursuant thereto, are entitled to "access to official records," the Constitution does not accord them a right to compel custodians of official records to prepare lists, abstracts, summaries and the like in their desire to acquire information on matters of public concern.” (Valmonte v. Belmonte) a. Rights guaranteed1. The right to information on matters of public concern 2. The corollary right of access to official records and documents. b. Limitations -only matters of public concern subject to limitations as may be provided by law. -Example: 1. National security matters- include state secrets regarding military, diplomatic and other national security, and information on inter-government exchanges prior to the conclusion of treaties and executive agreements. 2. Trade secrets and banking transactions 3. Criminal matters 4. other confidential matters- diplomatic correspondence, closed door cabinet and executive meetings, internal deliberations of the SC.

XV. NON-IMPAIRMENT OF OBLIGATIONS AND CONTRACTS Section 10. No law impairing the obligation of contracts shall be passed. “The constitutional prohibition against impairing contractual obligations is not absolute and is not to be read with literal exactness . It is restricted to contracts with respect to property or some object of value and which confer rights that maybe asserted in a court of justice; it has no application to statutes relating to public subjects within the domain of the general legislative powers of the State and involving the public rights and public welfare of the entire community affected by it. It does not prevent a proper exercise by the State of its police power by enacting regulations reasonably necessary to secure the health, safety, morals; comfort, or general welfare of the community, even though contracts may thereby be affected, for such matters cannot be placed by contract beyond the power of the State to regulate and control them. Verily, the freedom to contract is not absolute; all contracts and all rights are subject to the police power of the State and not only may regulations which affect them be established by the State, but all such regulations must be subject to change from time to time, as the general, well-being of the community may require, or as the circumstances may change, or as experience may demonstrate the necessity.” (conference of maritime manning agencies v. poea) a. When may a law be said to have impaired the obligation of contracts? A law which changes the terms of a legal contract between parties, either: 1.time or mode of performance; 2. Imposes new conditions; 3. Dispenses with those expressed; or 4. Authorizes for its satisfaction something different from that provided in its terms. Note: there is impairment if it is made to retroact to existing contracts

Art. III, Section 16. All persons shall have the right to a speedy disposition of their cases before all judicial, quasijudicial, or administrative bodies. Art. VIII, Section 15. (1) All cases or matters filed after the effectivity of this Constitution must be decided or resolved within twenty-four months from date of submission for the Supreme Court, and, unless reduced by the Supreme Court, twelve months for all lower collegiate courts, and three months for all other lower courts. Art. VII, Sec. 18 (3). The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus or the extension thereof, and must promulgate its decision thereon within thirty days from its filing.

XVII. FREEDOM OF EXPRESSION

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XVI. RIGHT TO SPEEDY DISPOSITION OF CASES

Room 409 Constitutional Law II Notes based on the Outline and Lecture of Atty. Joan S. Largo Subject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino

Art.III, Section 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances. Art.III, Section 18. (1) No person shall be detained solely by reason of his political beliefs and aspirations. Art. III, Section 8. The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged. a. Scope a.1. Form i. ii. iii. iv.

Written words Spoken words (speech, press) Symbolism, art forms Religion

a.2. What is protected? i. freedom to utter ii. freedom to publish iii. freedom from punishment subsequent to publication b. Nature -occupies a higher level or of primary position in the hierarchy of rights than substantive economic freedoms or other liberties. -basic human right (universal right) Note: even if absent in the Constitution can still be invoked because it is protected by customary international laws which are deemed binding in our domestic laws: 1.United Nations Universal Declaration of Human Rights Article 18.-Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance. Article 19.-Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. Article 20.-(1) Everyone has the right to freedom of peaceful assembly and association. (2) No one may be compelled to belong to an association.

Article 19 1. Everyone shall have the right to hold opinions without interference. 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals. c. Rationale

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2. International Covenant on Civil and Political Rights

Room 409 Constitutional Law II Notes based on the Outline and Lecture of Atty. Joan S. Largo Subject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino

“Gonzales further explained that the vital need of a constitutional democracy for freedom of expression is undeniable, whether as a means of assuring individual self-fulfillment; of attaining the truth; of assuring participation by the people in social, including political, decision-making; and of maintaining the balance between stability and change” (Chavez v. Gonzales) Note: Purpose: 1. Considered as a basic and fundamental human right to make the government responsive and accountable 2. Important for self fulfillment- we benefit or profit because when we interpret we also realize that we attain self actualization. 3. To make the people participate in governance- get to inform the government of one’s thoughts, criticisms, or what they should do or perform. 4. Balance between stability and change d. Political Expression Protected utterances from: I.

Freedom from Prior Restraint freedom from official governmental restriction on the press prior actual publication and dessimination. - Absolute - Evil sought to be prevented: government to become the guardian of the thoughts of the people. - MTRCB is not a form of censorship but the purpose of which is for classification of movies. (Gonzales v. Kalaw) Blatant form of censorship - Taxes. “the fees are imposed not on income but on the fact that they are able to distribute. If they do not pay, they cannot distribute. That is asking permission in advance of publication but it is different if it’s a tax on income.” (American Bible Society v. Capulong)

II. Subsequent punishment -because if there is no freedom from subsequent punishment then you defeat the very purpose of freedom of prior restraint. People would hesitate to speak what is on their thoughts GR: no liability after speech EXC: when public welfare demands e. Test to limit freedom

2. CONTENT-BASED -first look at the type of speech -Political speech- according to the SC, “The interest of society and the maintenance of good government demand a full discussion of public affairs. Completely liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and an unjust accusation; the wound can be assuaged with the balm of a clear conscience. A public officer must not be too thin-skinned with reference to comment upon his official acts. Only thus can the intelligence and the dignity of the individual be exalted.” (us v. bustos) - Clear and present danger : 1. Proximity and degree of evil sought to be prevented 2. Imminent, there is likelihood of happening - Dangerous tendency rule - Balancing of interest test f. Unprotected speech

Note: due to the difficulty to fathom the discussions, the time constraints and other inevitable circumstances, this memory aid was not finished. Please bear with the deficiencies.

November 29, 2008

1. CONTENT NEUTRAL - Substantial governmental interest - Intermediate approach (O’Brien Test)

Room 409 Constitutional Law II Notes based on the Outline and Lecture of Atty. Joan S. Largo Subject Committee Head: Russel Pernites. Members: Carla Zoila Aton. Myrheyna Alcoriza. Doc Ynclino

November 29, 2008

“Genius does not belong to a special few, but to everyone.” –Pandit Gopi Krishna