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ATENEO DE
DAVAO
COLLEGE
OF LAW
ATENEO DE
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COLLEGE
OF LAW
ATENEO DE
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COLLEGE
OF LAW
ATENEO DE
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COLLEGE
OF LAW
ATENEO DE
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ATENEO DE
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party as provided for by the rules, which has not been granted
him or deprived of him, the usual disposition of the SC is that
there is a violation of this due process. This disposition of the SC
has also led to some questions on whether or not the twin notice
rule for example, under the labor code, is a requirement of legal
process. Before the employee is supposed to be terminated or
otherwise disciplined, he must be entitled to the two notices. The
first is the notice of the violation with the opportunity to explain.
There must have to be an investigation where he may be
represented by counsel if he so desires. And he must be given
reasonable time for that. How many days is reasonable time? Is
there a requirement on days? Okay. And the second notice if the
employee will have to be disciplined, he mus6t have to be given
a copy of the order in writing. Now if this is not complied with, the
twin notice rule, is there a violation of due process rights?
Now, you very well remember the case of Isetan where the SC
has said that this is not actually a question of due process
because the constitutional provision on due process is the State
denying a person his right to due process. In the case of an
employee as against his employer, its not a case against the
State against the employee. It is a case between the employer
and the employee where the constitutional due process clause
does not come into play. Nonetheless, the two notice rule is also
a requirement if you have to stress it as a form of a statutory due
process, to give that person the employee the right to be heard
before he is condemned. Again, this is not the constitutional
concept of due process but that which has been provided for by
law. Imagine in the case of a student who is facing a disciplinary
case before the schools disciplinary tribunal. Now under the
procedural due process in schools disciplinary tribunal, we all
know that the student must have to be informed as well in writing
the charges with sufficient opportunity to present his evidence as
well and that the tribunal must render its decision based on the
evidence presented. The parties however do not have the right to
cross-examine the witnesses against them. They only have the
right to present witnesses for them in their favor or, to rebut the
evidence or testimonies of the other party.
Now that is part supposedly the procedural due process of
schools disciplinary court. Now the question is again asked is
that the constitutional due process mentioned. That is not the
constitutional due process because that is not between the
student and the State. It is between the school and the student.
Nonetheless, because of the requirement of fairness, that before
a judgment or decision is rendered against a person he must be
heard, there is that consideration that is also part of due process.
Definitely, not the constitutional kind but those which may have
been provided by statutes or by rules.
ATENEO DE
DAVAO
COLLEGE
OF LAW
Now, youre familiar with the drug related cases. In the ordinary
course of things, if you are the respondent in a criminal case, you
are notified by the prosecutor that a case is filed against you and
you are required to file a counter-affidavit. Then if there is no
clarificatory hearing, there is a resolution to indict you for
example. What is your first remedy available? File a motion for
reconsideration. If that MOR is denied, what is your available
remedy? You can file a Petition for Review before the Regional
State Prosecutor or the Dept. of Justice depending on the type of
hearing. After that from the RSPO you can DOJ Secretary or
from DOJ Secretary you can go to the Office of The President,
part of the administrative remedies that you must have to
exhaust. Now in drug related cases and that there is a resolution,
circular by the DOJ that in case the resolution of the prosecutor is
for dismissal, it goes to an automatic review to the DOJ Secretary
and the parties are not given a copy of the resolution. Now what
if the Secretary of Justice will reverse the ruling from dismissal to
indicting. What is your remedy now from the DOJ Secretary? So
you lose one or several remedies available.
Or for example, under the law creating the Sandiganbayan, we
have now several criminal cases which are triable with the
Sandiganbayan against public officers. There are two
considerations there. One is the salary grade of the employee.
Whats the salary grade? 27 or higher. Lower if there is a
conspiracy theory. And there are aside from that the
consideration of the violation. There are only a few violation that
are triable with the Sandiganbayan. Now if you are a public
officer with salary grade less than 27, and your are charge none
of those crimes triable with the Sandiganbayan law, from the trial
court, say MTC, when you are convicted, you can appeal it to the
RTC right? From the RTC to the CA. and eventually by certiorari
with the SC. But if you are salary grade 27 and you commit any
of those crimes, you are tried in the Sandiganbayan. And if you
are convicted in the Sandiganbayan, where do you go? See. You
lose some of these available remedies if you were not in that
category. Now in one case, that case of Sandiganbayan, that has
been asked if whether it violates equal protection because there
is a different statement with respect to these covered employees
and those not covered. Those not covered have several chances
of paying their way to freedom (class laughs). Uh no. Having
every decision reviewed or appealed, not paid. It was wrong.
While those with the Sandiganbayan, they only have one chance
of review or appeal. Well the SC held that is justified because
they belong to different classes. But again, if it were to be due
process, it will have to be in the constitution as against the
exercise of the State of its power. So no person shall be denied
of his life, liberty or property without due process. So when the
person is charged for committing a criminal act, it is to deprtive
him of his liberty because death penalty cannot be imposed as of
the moment. So before that liberty can be taken away from him,
he must have to be granted his due process. And that is the
opportunity to be heard. In any other context if it were not as
between the State, the due process takes a different perspective
because it is no longer constitutional. Though cases will use the
phrase denial of due process violated his due process right
that should not be taken in the context of the constitutional grant
but in another only statutory allowances.
PARAS, TINE
TINAPAY, EARL
But that's not all the law is. The law is also memory;
the law also records a long-running conversation, a
nation arguing with its conscience.
Barack Obama, Dreams from My Father
1 August 2012
DUE PROCESS IN GENERAL
PROCEDURAL AND SUBSTANTIVE DUE PROCESS
When the State exercises its inherent powers with respect to the
constitutional right guaranties, we have come across a lot of
cases where the SC has tried to balance the conflicting interest
the power of the State in exercising its inherent power as against
the protection of these constitutional rights. Generally, the SC
has applied of what we now know as of balancing of interest test
to determine whether the State authority or power should be
upheld over the claim of individual protection of rights. In these
cases, the SC has considered a conscious effort to determine in
taking into consideration of these powers and would decide
cases with respect to this interplay in a given situation or type of
situation.
With respect to these constitutional rights that we have, there is
such a thing as hierarchy of rights. Which of these rights are
preferred under the Constitution? Generally, there are 3 rights
which occupy the highest or the first 3 in the hierarchy of rights
which are generally not permitted to be derogated by any of the
power of the State. These are:
1. arbitrary deprivation of life;
2. freedom from torture, cruel, degrading or inhuman
punishment and;
3. freedom of thought, conscience and religion which
includes political belief or aspirations and no religious
test for exercise of civil or political rights.
In the hierarchy of rights, these are the rights under
consideration generally there are no state regulation.
The rest of the rights in the hierarchy will be arbitrary arrest,
detention, search and seizure which should include the
provisions on ex-post facto or bill of attainder and involuntary
servitude, the provision of equal protection, the rights of accused,
presumption of innocence, rights during investigation, double
jeopardy, privilege against self incrimination, the next will be the
right to privacy and privacy of communication, next will be abode
and travel, next will be speech, assembly and formation, and the
last would be the right to association. These rights can be
derogated or there can be permissible derogation particularly
during times of emergencies.
ATENEO DE
DAVAO
COLLEGE
OF LAW
The rest of the rights in our Constitution are only provided for
peculiar to our Constitution. These are eminent domain, nonimpairment clause, right to bail, suspension of the writ of the
habeas corpus, speedy disposition of cases, use of inadequate
or substandard penal facility and non-imprisonment for debt.
These are so called peculiar to our Constitution because they are
not normally found in other constitutions or more else which
discusses the so called hierarchy of rights.
Now in substantive due process, there are 3 general standards
being used. This has been discussed in the case of Southern
vs. Anti-terrorism, 632 SCRA 146. These 3 general standards
used to review substantive due process if there is a question of
whether the law or action of the government violates substantive
due process. The 3 tests are (very important!):
1. Strict Scrutiny Test
2. Intermediate Scrutiny Test
3. Rational or Differential Test.
These 3 tests were originally or first used under the discussion of
equal protection on the basis of classification. However, the SC
has used these tests to test cases involving questions of
substantive due process.
In strict scrutiny test, there must have to be a compelling state
interest that must have to be shown and that there are available
means which are less restrictive to individual freedoms (murag
ang dapat kay there are no other available less restrictive
available means ) that must be proven also to allow a valid
government regulation. So if a regulation is to be tested under
strict scrutiny there must have to be 2 things to be proven;
1. That there is a compelling state interest that
must have to be observed and
2. There are less restrictive available means of
regulating individual liberties to allow possible
state regulation. (I think dapat there are no other
less restrictive available means )
But this test is usually used when the law in question deals with
fundamental rights such as speech, gender or race. In strict
scrutiny, the presumption of constitutionality has a very narrow
application. To state it differently, the presumption of
constitutionality may not even apply because the State has to
prove that there is a compelling state interest and that there are
no other less restrictive means available to regulate individual
liberties.
In intermediate review, the substantiality of government interest
is seriously looked into and the availability of less restrictive
alternatives is considered. Here, 2 things;
ATENEO DE
DAVAO
COLLEGE
OF LAW
1.
2.
This test is usually used when the laws in question affect gender
and legitimacy.
The last test is differential or rational review test. There is only
a need to show that the regulation rationally further a legitimate
government interest. There is no need for the court to inquire into
the substantiality of that government interest or that there are
less restrictive alternatives available. What is needed to be
shown is that the legislation rationally furthers a government
interest. This test is used when the law in question affects
economics or the economy.
So it largely depends on what rights are played as against a
government interest. If it refers to fundamental rights, its always
a strict scrutiny test, that there is no presumption of
constitutionality, the State has the burden of proving 2 thingsstate interest that is compelling and that there are no less
restrictive means available for regulating it.
The strict scrutiny test has also been applied to laws dealing with
freedom of the mind or political process. The US Supreme
Court has expanded it to suffrage, judicial access and
interstate travel. Interstate travel to us is actually liberty of travel
within the Philippines. There is no interstate travel here because
we are not comprised of sub states.
These standards are applied when there is a question on validity
of deprivation and as we all know if it is tested under judicial
review, theres always that question of grave abuse of discretion.
While these are the general test used, there are individual tests
which are applicable to individual exercises of authority. As we
have mentioned before, like in police power, the 2 standard tests,
the lawfulness of the subject and the lawfulness of the means.
There are also standard tests used to determine of whether the
regulation is valid. In eminent domain we have the validity of the
exercise of regulation based on the elements or conditions.
In regulatory ordinance for local governments as stated in the
case of White Light Corp. vs. City of Manila, 576 SCRA 1416,
the local regulatory ordinance must have to be within the powers
of the LGU to pass, must have been passed by the LGU
according to the procedure as provided in LGC and third it must
satisfy 6 other substantial requirements. These are:
10
1.
2.
3.
4.
5.
6.
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iii.
EQUAL PROTECTION
Now, lets go to equal protection.
Theres a case between Surigao Electric vs. ERC. This is a
case involving imposition of rates by public utilities. The question,
can they be regulated under the police power? It is a no brainer,
it should be regulated. The only discussion here perhaps is the
nature of the rate fixing authority of our regulatory bodies. In rate
fixing, there are two considerations: One, the quasi-judicial
function of the regulatory office or the quasi-legislative function of
the regulating office in fixing the rate. If the rates are fixed under
the bodys quasi-judicial function, then the requirements of due
process or notice and hearing must have to be satisfied. Because
it will only apply to a particular party or particular operator in that
case. But if the rate is fixed under the exercise of its quasilegislative power then notice and hearing need not be complied
as a requirement of due process because regulatory departments
or offices involved in public utilities are always given the power to
fix the rates based on public hearings and consultations and that
should satisfy the requirement of due process because anyway it
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ATENEO DE
DAVAO
COLLEGE
OF LAW
This case of White Light vs. City of Manila... This is an old case
involving an old problem in the City of Manila. As you have read,
this involves the power of the local government unit to enact an
ordinance to limit or regulate the business involving operations of
hotels and motels to curb the increasing problem of prostitution.
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and/or adjacent lots that are solely devoted for use as parking
spaces.
Respondents received information that, pursuant to Senate
Committee Report No. 225, the DPWH Secretary and the local
building officials of Manila, Quezon City, and Las Pias intended to
institute, through the OSG, an action to enjoin respondents from
collecting parking fees, and to impose upon said establishments
penal sanctions under PD No. 1096 (National Building Code) and
its IRR. With the threatened action against it, respondent SM
Prime filed, on 3 October 2000, a Petition for Declaratory
Relief8 under Rule 63.
Held:
The Building Code, which is the enabling law and the
Implementing Rules and Regulations do not impose that parking
spaces shall be provided by the mall owners free of charge. Absent
such directive, respondents are under no obligation to provide
them for free. In conclusion, the total prohibition against the
collection by respondents of parking fees from persons who use
the mall parking facilities has no basis in the National Building
Code or its IRR. The State also cannot impose the same
prohibition by generally invoking police power, since said
prohibition amounts to a taking of respondents property without
payment of just compensation.
Ok. Equal protection. We have said that the inclusion of the equal
protection clause under the same Section 1 of the due process
clause is by design and not by accident. General violations of
due process or arbitrariness are usually questioned under the
due process clause but specific instances of violations or acts of
arbitrariness are usually raised under equal protection issues
because it affects a particular class or individual. Now, the equal
protection clause in the Constitution simply requires that all
persons or things similarly situated should be treated alike both
as to the rights conferred and responsibilities imposed.
The equal protection just like due process has two components:
(1) the substantive parts and (2) the procedural parts. Procedural
is simply that the law must have to be applied equally to those in
the same class. Equal protection does not require absolute
equality, it only requires substantive equality among equals
and the equality is measured or determined on the basis of valid
classification which is based on similarities and some particular
which is not shared by the rest with respect to the same
particulars. There is, again, no absolute similarity in all but at
least to these specifics they are similar and they are not shared
with the rest who do not belong to said class.
Now for there to be a valid classification the law has always
required that the classification must rest on (1) substantial
distinction. (2) It must be germane to the purpose of the law. The
classification must (3) not be limited to existing conditions only
and that (4) it must be equally applicable to those belonging to
the same class.
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2 August 2012
EQUAL PROTECTION
Before we leave the item on Equal Protection, theres 1 case
involving EO 1 of PNoy creating the Philippine Truth
Commission. In this case of Biraogo vs. Philippine Truth
Commission, the SC nullified the creation of the Commission on
the ground of violation of equal protection. The dismissal was
based on the reasoning that the non-inclusion of past
administrations similarly situated (since the only object of the
investigation was the Arroyo administration) constitutes
arbitrariness. The Arroyo administration, according to the SC, is
not a class by itself and if the object of the commission is to
inquire into the excesses of the previous administration, then
everybody (i.e. those before Arroyo) must have to be included.
The non-inclusion therefore of the other past administrations
constitutes class legislation.
LOUIS "BAROK" C. BIRAOGO vs.
THE PHILIPPINE TRUTH COMMISSION OF 2010
G.R. No. 192935
December 7, 2010
Concept of the Equal Protection Clause
One of the basic principles on which this government was founded
is that of the equality of right which is embodied in Section 1,
Article III of the 1987 Constitution. The equal protection of the laws
is embraced in the concept of due process, as every unfair
discrimination offends the requirements of justice and fair play. It
has been embodied in a separate clause, however, to provide for a
more specific guaranty against any form of undue favoritism or
hostility from the government. Arbitrariness in general may be
challenged on the basis of the due process clause. But if the
particular act assailed partakes of an unwarranted partiality or
prejudice, the sharper weapon to cut it down is the equal protection
clause.
"According to a long line of decisions, equal protection simply
requires that all persons or things similarly situated should be
treated alike, both as to rights conferred and responsibilities
imposed." It "requires public bodies and institutions to treat
similarly situated individuals in a similar manner." "The purpose of
the equal protection clause is to secure every person within a
states jurisdiction against intentional and arbitrary discrimination,
whether occasioned by the express terms of a statue or by its
improper execution through the states duly constituted
authorities." "In other words, the concept of equal justice under the
law requires the state to govern impartially, and it may not draw
distinctions between individuals solely on differences that are
irrelevant to a legitimate governmental objective."
The equal protection clause is aimed at all official state actions, not
just those of the legislature. Its inhibitions cover all the
departments of the government including the political and
executive departments, and extend to all actions of a state denying
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It, however, does not require the universal application of the laws
to all persons or things without distinction. What it simply requires
is equality among equals as determined according to a valid
classification. Indeed, the equal protection clause permits
classification. Such classification, however, to be valid must pass
the test of reasonableness. The test has four requisites: (1) The
classification rests on substantial distinctions; (2) It is germane to
the purpose of the law; (3) It is not limited to existing conditions
only; and (4) It applies equally to all members of the same class.
"Superficial differences do not make for a valid classification."
For a classification to meet the requirements of constitutionality, it
must include or embrace all persons who naturally belong to the
class. "The classification will be regarded as invalid if all the
members of the class are not similarly treated, both as to rights
conferred and obligations imposed. It is not necessary that the
classification be made with absolute symmetry, in the sense that
the members of the class should possess the same characteristics
in equal degree. Substantial similarity will suffice; and as long as
this is achieved, all those covered by the classification are to be
treated equally. The mere fact that an individual belonging to a
class differs from the other members, as long as that class is
substantially distinguishable from all others, does not justify the
non-application of the law to him."
The classification must not be based on existing circumstances
only, or so constituted as to preclude addition to the number
included in the class. It must be of such a nature as to embrace all
those who may thereafter be in similar circumstances and
conditions. It must not leave out or "underinclude" those that
should otherwise fall into a certain classification. As elucidated in
Victoriano vs. Elizalde Rope Workers' Union and reiterated in a
long line of cases,
The guaranty of equal protection of the laws is not a guaranty of
equality in the application of the laws upon all citizens of the state.
It is not, therefore, a requirement, in order to avoid the
constitutional prohibition against inequality, that every man,
woman and child should be affected alike by a statute. Equality of
operation of statutes does not mean indiscriminate operation on
persons merely as such, but on persons according to the
circumstances surrounding them. It guarantees equality, not
identity of rights. The Constitution does not require that things
which are different in fact be treated in law as though they were
the same. The equal protection clause does not forbid
discrimination as to things that are different. It does not prohibit
legislation which is limited either in the object to which it is directed
or by the territory within which it is to operate.
The equal protection of the laws clause of the Constitution allows
classification. Classification in law, as in the other departments of
knowledge or practice, is the grouping of things in speculation or
practice because they agree with one another in certain
particulars. A law is not invalid because of simple inequality. The
very idea of classification is that of inequality, so that it goes
without saying that the mere fact of inequality in no manner
determines the matter of constitutionality. All that is required of a
valid classification is that it be reasonable, which means that the
classification should be based on substantial distinctions which
make for real differences, that it must be germane to the purpose
of the law; that it must not be limited to existing conditions only;
and that it must apply equally to each member of the class. This
Court has held that the standard is satisfied if the classification or
distinction is based on a reasonable foundation or rational basis
and is not palpably arbitrary. [Citations omitted]
Applying these precepts to this case, Executive Order No. 1 should
be struck down as violative of the equal protection clause. The
clear mandate of the envisioned truth commission is to investigate
and find out the truth "concerning the reported cases of graft and
corruption during the previous administration" only. The intent to
single out the previous administration is plain, patent and manifest.
Mention of it has been made in at least three portions of the
questioned executive order. Specifically, these are:
WHEREAS, there is a need for a separate body dedicated solely
to investigating and finding out the truth concerning the reported
cases of graft and corruption during the previous administration,
and which will recommend the prosecution of the offenders and
secure justice for all;
SECTION 1. Creation of a Commission. There is hereby
created the PHILIPPINE TRUTH COMMISSION, hereinafter
referred to as the "COMMISSION," which shall primarily seek and
find the truth on, and toward this end, investigate reports of graft
and corruption of such scale and magnitude that shock and offend
the moral and ethical sensibilities of the people, committed by
public officers and employees, their co-principals, accomplices and
accessories from the private sector, if any, during the previous
administration; and thereafter recommend the appropriate action
or measure to be taken thereon to ensure that the full measure of
justice shall be served without fear or favor.
SECTION 2. Powers and Functions. The Commission, which
shall have all the powers of an investigative body under Section
37, Chapter 9, Book I of the Administrative Code of 1987, is
primarily tasked to conduct a thorough fact-finding investigation of
reported cases of graft and corruption referred to in Section 1,
involving third level public officers and higher, their co-principals,
accomplices and accessories from the private sector, if any, during
the previous administration and thereafter submit its finding and
recommendations to the President, Congress and the
Ombudsman. [Emphases supplied]
In this regard, it must be borne in mind that the Arroyo
administration is but just a member of a class, that is, a class of
past administrations. It is not a class of its own. Not to include past
administrations similarly situated constitutes arbitrariness which
the equal protection clause cannot sanction. Such discriminating
differentiation clearly reverberates to label the commission as a
vehicle for vindictiveness and selective retribution.
Though the OSG enumerates several differences between the
Arroyo administration and other past administrations, these
distinctions are not substantial enough to merit the restriction of the
investigation to the "previous administration" only. The reports of
widespread corruption in the Arroyo administration cannot be taken
as basis for distinguishing said administration from earlier
administrations which were also blemished by similar widespread
reports of impropriety. They are not inherent in, and do not inure
solely to, the Arroyo administration. As Justice Isagani Cruz put it,
"Superficial differences do not make for a valid classification."
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The Rules of Court provide for the requirements for the issuance
of search warrants:
1. an application must be under oath or affirmation;
2. there is determination of probable cause to be done
personally by the judge.
Probable cause has been defined as such amount of facts or
circumstances which would lead a prudent judge to believe that a
crime has been committed and that the fruits, effects or objects of
the crime are in the place to be searched. There is also a
requirement of a hearing for the determination of probable cause.
The hearing is obviously summary in character but what is
required under the Rules is that there must have to be an oath or
affirmation during or before the examination and that the judge
must have to ask searching questions on the applicant and/or
witnesses. There were several cases in the past that [ruled that]
leading questions would not be allowed or are insufficient for the
judge to determine probable cause. The answers must have to
be based on the personal knowledge of the applicant and/or
witnesses. This is a rule on Evidence i.e. that a person can only
be allowed to testify on facts which he has perceived through the
use of his senses so that if the matters taken in the application
turn out to be false, such applicant and/or witnesses can be held
liable for false testimony.
Now in one case, People vs. Mamaril (October 6, 2010), the SC
had occasion to characterize the test for the proper determination
of probable cause. The issue raised by the appellant on appeal
was that there was no proper determination of probable cause
based on the line of questioning of the applicant (a police officer)
considering that there were only few questions asked. The SC
said that there are no general criteria on the amount of probable
cause (or the amount of questions that the judge must ask for
probable cause to be properly determined). What is important is
that the judge must personally believe that there exists probable
cause based on the facts and circumstances of the case. Again,
there is no hard and fast rule as to how the determination of
probable cause should be made because it is largely dependent
on findings and the application of these facts by the judge.
PEOPLE OF THE PHILIPPINES vs. OLIVE RUBIO MAMARIL
G.R. No. 171980
October 6, 2010
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Now, dont confuse this with that old case involving PICOP in
Bislig City. The issue there was on the particularity in the
description of the place (to be searched) because PICOP is a
very big compound. What was sought to be searched there were
the structures where illegal firearms and ammunitions were
supposed to have been kept and stored. In that case, the SC
said that the warrant failed to describe the particular structure to
be searched simply because it (PICOP) is a very big compound
(including forest land, among others). So if it were to be a big
compound where the structures are considerably separated from
each other, there must have to be a sufficient description of
which structure in the said address is sought to be searchednot
only of the address of the big compound.
PAPER INDUSTRIES CORPORATION OF THE
PHILIPPINES (PICOP) vs.
JUDGE MAXIMIANO C. ASUNCION
G.R. No. 122092 May 19, 1999
Thus, this Court has held that "this constitutional right [i]s the
embodiment of a spiritual concept: the belief that to value the
privacy of home and person and to afford it constitutional
protection against the long reach of government is no less than to
value human dignity, and that his privacy must not be disturbed
except in case of overriding social need, and then only under
stringent procedural safeguards." Additionally, the requisite of
particularity is related to the probable cause requirement in that, at
least under some circumstances, the lack of a more specific
description will make it apparent that there has not been a
sufficient showing to the magistrate that the described items are to
be found in particular place.
In the present case, the assailed search warrant failed to described
the place with particularly. It simply authorizes a search of "the
aforementioned premises," but it did not specify such premises.
The warrant identifies only one place, and that is the "Paper
Industries Corporation of the Philippines, located at PICOP
Compound, Barangay Tabon, Bislig[,] Surigao del Sur." The PICOP
compound, however, is made up of "200 offices/building, 15 plants,
84 staff houses, 1 airstrip, 3 piers/wharves, 23 warehouses, 6 POL
depots/quick service outlets and some 800 miscellaneous
structures, all of which are spread out over some one hundred fiftyfive hectares." Obviously, the warrant gives the police officers
unbridled and thus illegal authority to search all the structures
found inside the PICOP compound.
In their Opposition, the police state that they complied with the
constitutional requirement, because they submitted sketches of the
premises to be searched when they applied for the warrant. They
add that not one of the PICOP Compound housing units was
searched, because they were not among those identified during
the hearing.
These arguments are not convincing. The sketches allegedly
submitted by the police were not made integral parts of the search
warrant issued by Judge Asucion. Moreover, the fact that the
raiding police team knew which of the buildings or structures in the
PICOP Compound housed firearms and ammunitions did not
justify the lack of particulars of the place to be searched.
Otherwise, confusion would arise regarding the subject of the
warrant the place indicated in the warrant or the place identified
by the police. Such conflict invites uncalled for mischief or abuse of
discretion on the part of law enforces.
Thus, in People v. Court of Appeals, this Court ruled that the
police had no authority to search the apartment behind the store,
which was the place indicated in the warrant, even if they intended
it to be the subject of their application. Indeed, the place to be
searched cannot be changed, enlarged or amplified by the police,
viz.:
. . . 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 the 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 [was]
neither fair nor licit to allow police officers to search a place
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different from that stated in the warrant on the claim that the place
actually searched although not that specified in the warrant
[was] exactly what they had in view when they applied for the
warrant and had demarcated in the 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. (Emphasis supplied.)
because the search was really intended in that place. This has
happened in one case. Its no longer included in the outline. This
involves an address somewhere in Cebu, in Mandaue City. A
person applied for SW where the address was, say, 123
Bonifacio St., a common name for a street in every locality.
However, what was typed in the search warrant (SW) was merely
Cebu City. That notwithstanding, the SW indicated also the
business name for which the SW was issued. The SC said this
was already sufficient. The error in this case was merely
typographical. The SW was considered to have been validly
issued; hence, it could be validly executed.
4. Particularity in the description of the things to be seized
What is required here is sufficiency of description.
As such, based on the circumstances, the exact quantity of say,
the drugs, or identity of the firearms to be seized (i.e. the serial
number, the caliber)these are not necessary for the purpose of
complying with this requirement.
This is because under the circumstances, it is not reasonably
expected that the applicant or witnesses would have a clear and
accurate description as to the quantity or quality. So, mostly, it
would be phrased as so much of the drugs, described as
methamphetamine hydrochloride or marijuana leaves, or in case
of firearms, pistols or rifles would sufficeall based on the
circumstances.
Case in Point (CIP): Ty v. De Jemil (2010)
It was held that the property to be seized based on the warrant
need not belong to the person against whom the warrant was
issued.
It must be remembered that in crimes (where searches are
usually done) say, drugs or illegal possession of firearms, the
criminal act is not premised on ones ownership of the drugs or
firearms, rather, it is based on ones possession. Mere
possession or (effective) control is sufficient to constitute a
prima facie proof of your culpability.
The fact of your non-ownership (of the drugs or firearms) will not
destroy said proof since ownership was never, in the first place, a
consideration for your apprehension. This also holds true if your
defense is non-ownership of the place where the things seized
were foundmere possession or control of the items is enough.
ARNEL U. TY, MARIE ANTONETTE TY, JASON ONG, WILLY DY,
and ALVIN TY vs. NBI SUPERVISING AGENT MARVIN E. DE
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27
b)
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The Del Rosarios did not allege that respondents NBI agents
violated their right by fabricating testimonies to convince the RTC
of Angeles City to issue the search warrant. Their allegation that
the NBI agents used an unlawfully obtained search warrant is a
mere conclusion of law. While a motion to dismiss assumes as
true the facts alleged in the complaint, such admission does not
extend to conclusions of law. Statements of mere conclusions of
law expose the complaint to a motion to dismiss on ground of
failure to state a cause of action.
Further, the allegation that the search warrant in this case was
served in a malicious manner is also not sufficient. Allegations
of bad faith, malice, and other related words without ultimate facts
to support the same are mere conclusions of law.
The Del Rosarios broad assertion in their complaint that the
search was conducted in full and plain view of members of the
community does not likewise support their claim that such search
was maliciously enforced. There is nothing inherently wrong with
search warrants being enforced in full view of neighbors. In fact,
when the respondent or his representative is not present during the
search, the rules require that it be done in the presence of two
residents of the same locality. These safeguards exist to protect
persons from possible abuses that may occur if searches were
done surreptitiously or clandestinely.
[Two]
Invoking Section 21 of this Courts AM 02-1-06-SC, the CA held
that, rather than file a separate action for damages, the Del
Rosarios should have filed their claim for compensation in the
same proceeding and with the same court that issued the writ of
search and seizure. The Del Rosarios were thus guilty of forum
shopping.
The SC found this untenable as the subject search warrant was
not issued under A.M. 02-1-06-SC, which governed the issuance of
a writ of search and seizure in a civil action for infringement filed by
an intellectual property right owner against the supposed infringer
of his trademark or name.
Philip Morris, the manufacturer of Marlboro cigarettes, did not go
by this route. Philip Morris did not file a civil action for infringement
of its trademark against the Del Rosarios before the RTC of
Angeles City. Instead, Philip Morris sought assistance from the
NBI for the apprehension and criminal prosecution of those
reportedly appropriating its trademark and selling fake Marlboro
cigarettes.
In turn, the NBI instituted a police action that included applying for
a search and seizure warrant under Sections 3, 4, 5 and 6 of Rule
126 of the Rules of Criminal Procedure (not under the provisions of
A.M. 02-1-06-SC) against the Del Rosarios upon the belief that
they were storing and selling fake Marlboro cigarettes in violation
of the penal provisions of the intellectual property law.
The proceeding under Rule 126, a limited criminal one, does
not provide for the filing of counterclaims for damages
against those who may have improperly sought the issuance
of the search warrant. Consequently, the Del Rosarios had the
right to seek damages, if the circumstances warranted, by
separate civil action for the wrong inflicted on them by an
29
If the judge does not find any probable cause or does not
continue with the indictment, the judge must require the
investigating officer (the prosecutor) to submit, within a certain
period of time, further documents or evidence for him or her (the
judge) to determine whether or not there is probable cause to
proceed.
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It would seem that under the Rules of Court, the judge can
determine probable cause just like a prosecutor (referring to this
right). This is a variation from the previous discussions that the
determination by the judge of the existence of a probable cause,
when the case docket is received by him from the investigating
office, is to determine probable cause for the issuance of warrant
only.
In the old case of Lim (no citation), the SC said that the judge in
determining the probable cause for the existence of a warrant is
actually performing a judicial function, whereas the determination
by the investigating officer as to the existence of a probable
cause to indict a person in court is an executive function.
But now, under the Rules of Court, the judge, upon receiving the
full set of documents from the investigating officer can both, one,
perform the executive function by determining the existence of
probable cause whether or not there is a well-engendered belief
to charge the person in court. If there is none (probable cause),
the judge must require the prosecution to submit additional
evidence.
And second, if after that or even before that the judge really
believes there is no really probable cause to continue with the
indictment or prosecution of the case, then the judge can dismiss
the case. This is the second right:
2.
3.
a)
b)
1.
As to
lifetime
its
SEARCH
WARRANT
10 days from
its issuance
None.
It is valid until it is served.
The 10 day period referred
to under the Rules of
Court (Sec. 4, Rule 113)
refers to the requirement
of return or the duty of the
enforcing officer to return
the warrant to the court,
whether or not it has been
served. This is not the life
of warrant of arrest.
As to Search Warrants
30
WARRANT OF ARREST
2.
3.
As to the
time
of
implementat
ion
As a rule, it
must be in
daytime.
As to the
manner of
implementat
ion
It must be
shown to the
person who
is in control
of the place
intended to
be searched
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1.
2.
3.
4.
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-It will not fall under search incident of a valid arrest because they
went in the next room. The living room was partitioned with a wall
from the kitchen.
ASONG, JP LEO
KINTANAR, KRISZA JOY
LAMAN, JAHMES WA EL
34
"I returned, and saw under the sun, that the race is
not to the swift, nor the battle to the strong, neither
yet bread to the wise, nor yet riches to men of
understanding, nor yet favour to men of skill; but
time and chance happeneth to them all."
~Ecclesiastes 9:11
August 7, 2012
VALID INSTANCES OF WARRANTLESS
SEARCHES AND SEIZURES
Now, based on the facts of the case, the knowledge of the police
officers was based on the informants tip. Neither did they have
any personal knowledge, nor anything which consisted of
probable cause so as to make the entry.
Therefore, the intrusion was not justifiable. Since the intrusion
was not justified, the discovery of the drugs later on would not be
justified as well because they should not have been there to
begin with.
G.R. No. 191366
December 13, 2010
PEOPLE OF THE PHILIPPINES vs.
ARNOLD MARTINEZ Y NGELES, EDGAR DIZON Y FERRER,
REZIN MARTINEZ Y CAROLINO, and RAFAEL GONZALES Y
CUNANAN
This case would appear to fall under either a warrantless search
incidental to a lawful arrest or a plain view search, both of which
require a lawful arrest in order to be considered valid exceptions to
the constitutional guarantee.
Rule 113 of the Revised Rules of Criminal Procedure provides for
the circumstances under which a warrantless arrest is lawful. Thus:
Sec. 5. Arrest without warrant; when lawful. A peace officer or a
private person may, without a warrant, arrest a person:
(a)
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(b)
(c)
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parked their car some three hundred (300) meters away. They
walked towards their quarry's lair accompanied this time by their
unnamed informer.
When they reached the house they "peeped (inside) through a
small window and x x x saw one man and a woman repacking
suspected marijuana."
They entered the house and introduced themselves as police
officers to the occupants and thereupon confiscated the tea bags
and some drug paraphernalia. They arrested the two (2) who
turned out to be the accused Zenaida Bolasa y Nakoboan and
Roberto delos Reyes. Subsequent examination of the tea bags by
NBI Forensic Chemist Rubie Calalo confirmed the suspicion that
the tea bags contained marijuana.
RULING
Arrests and seizures in the following instances are not deemed
unreasonable and are thus allowed even in the absence of a
warrant
1. Warrantless search incidental to a lawful arrest (Sec. 12, Rule
126 of the Rules of Court and prevailing jurisprudence);
2. Search of evidence in plain view. The elements are: (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 have the right to be where they are; (c) the
evidence must be immediately apparent; and, (d) "plain view"
justified mere seizure of evidence without further search.
3.
Search of a moving vehicle.
Highly regulated by the
government, the vehicles inherent mobility reduces
expectation of privacy especially when its transit in public
thoroughfares furnishes a highly reasonable suspicion
amounting to probable cause that the occupant committed a
criminal activity;
4. Consented warrantless search;
5. Customs search;
6. Stop and Frisk; and
7. Exigent and emergency circumstances.
An arrest is lawful even in the absence of a warrant: (a) when the
person to be arrested has committed, is actually committing, or is
about to commit an offense in his presence; (b) when an offense
has in fact been committed and he has reasonable ground to
believe that the person to be arrested has committed it; and, (c)
when the person to be arrested is a prisoner who has escaped
from a penal establishment or place where he is serving final
judgment or temporarily confined while his case is pending, or has
escaped while being transferred from one confinement to another.
A person charged with an offense may be searched for dangerous
weapons or anything which may be used as proof of the
commission of the offense.
IN THIS CASE, the manner by which accused-appellants were
apprehended does not fall under any of the above-enumerated
categories.
Perforce, their arrest is illegal. First, the arresting officers had no
personal knowledge that at the time of their arrest, accused-
37
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Then, they brought the petitioner to the police station for further
investigation. In the course of the same, the petitioner was asked
to show the necessary license or authority to possess firearms and
ammunitions found in his possession but he failed to do so. He
was then taken to the Davao Metrodiscom office and the prohibited
articles recovered from him were indorsed to M/Sgt. Didoy the
officer then on duty. He was prosecuted for illegal possession of
firearms and ammunitions.
RULING
Clearly, the search in the case at bar can be sustained under the
exceptions.
There are many instances where a warrant and seizure can be
effected without necessarily being preceded by an arrest, foremost
of which is the "stop and search" without a search warrant at
military or police checkpoints, the constitutionality or validity of
which has been upheld by this Court in Valmonte vs. de Villa.
It was held in said case that [n]ot 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 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
Thus, as between a warrantless search and seizure conducted at
military or police checkpoints and the search thereat in the case at
bar, there is no question that, indeed, the latter is more reasonable
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So the question there was whether there was a valid arrest and
seizure upon search and frisk.
The SC made it fall under the STOP and FRISK SITUATION
because there was no intention really to arrest that person or any
intention to search the appellant. The police officer was there for
different reason. But because of his experience, he noticed that
the woman was acting suspiciously, for which reason the seizure
was considered valid under the STOP and FRISK.
ESQUILLO vs PEOPLE G.R. No. 182010
On the basis of an informants tip, PO1 Cruzin, together with PO2
Angel Aguas (PO2 Aguas), proceeded to Pasay City to conduct
surveillance on the activities of an alleged notorious snatcher
operating in the area known only as Ryan.
As PO1 Cruzin alighted from the private vehicle that brought him
and PO2 Aguas to the target area, he glanced in the direction of
petitioner who was standing three meters away and seen placing
inside a yellow cigarette case what appeared to be a small heatsealed transparent plastic sachet containing white substance.
While PO1 Cruz was not sure what the plastic sachet contained,
he became suspicious when petitioner started acting strangely as
he began to approach her. He then introduced himself as a police
officer to petitioner and inquired about the plastic sachet she was
placing inside her cigarette case.
Instead of replying, however, petitioner attempted to flee to her
house nearby but was timely restrained by PO1 Cruzin who then
requested her to take out the transparent plastic sachet from the
cigarette case. After apprising petitioner of her constitutional rights,
PO1 Cruzin confiscated the plastic sachet on which he marked her
initials SRE. A case was filed against her.
39
but she was eventually caught up. When the officer inspected the
lighter, it turned out to be shabu.
RULING
Appellants conviction stands. Elucidating on what includes stopand-frisk operation and how it is to be carried out, the Court in
People v. Chua held:
. . . the act of a police officer to stop a citizen on the street,
interrogate him, and pat him for weapon(s) or contraband. The
police officer should properly introduce himself and make initial
inquiries, approach and restrain a person who manifests unusual
40
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the cost of others lives. Thus, the Court would have affirmed
Nuevas conviction had he not withdrawn his appeal.
On the other hand, with respect to the search conducted in the
case of Din, the Court finds that no such consent had actually been
given. The police officers gave inconsistent, dissimilar testimonies
regarding the manner by which they got hold of the plastic bag.
Neither can Dins silence at the time be construed as implied
acquiescence to the warrantless search. Thus, the prosecution
failed to clearly show that Din intentionally surrendered his right
against unreasonable searches.
As to Inocencios case, his supposed possession of the dried
marijuana leaves was sought to be shown through his act of
looking into the plastic bag that Din was carrying. The act
attributed to Inocencio is insufficient to establish illegal possession
of the drugs or even conspiracy to illegally possess the same. The
prosecution failed to show by convincing proof that Inocencio knew
of the contents of the bag and that he conspired with Din to
possess the illegal items.
But in one case, that case of VEROY vs. LAYAGUE, the consent
there to conduct a search was allowed [but only for the purpose
of ] searching the house for the presence of rebel soldiers. So
these are people supposedly hiding in the residential building.
Thus, the search is to be conducted only in the place where it is
reasonably expected that a person would hide.
Based on the facts of the case, however, they found the
supposed documents, firearms, and ammunitions in the places
where it cannot be reasonably expected to a person to be hiding,
that is, in the drawer and small cabinet where no human can fit.
The SC said that the search was INVALID.
VEROY VS. LAYAGUE
(210 SCRA 92)
Petitioners are husband and wife who owned and formerly resided
at Skyline, Davao City. In June 1988, they transferred to Quezon
City where they are presently residing. The care and upkeep of
their residence was left to two (2) houseboys. The key to the
master's bedroom as well as the keys to the children's rooms were
retained by petitioners.
On April 12, 1990, Capt. Obrero, raided the house of herein
petitioners in Davao City on information that the said residence
was being used as a safehouse of rebel soldiers. They were able
to enter the yard with the help of the caretakers but did not enter
the house since the owner was not present and they did not have a
search warrant.
Petitioner Ma. Luisa was contacted by telephone to ask permission
to search the house. Ma. Luisa Veroy responded that she is flying
to Davao City to witness the search but relented if the search
would not be conducted in the presence of Major Ernesto
Macasaet.
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SO, the waiver must have to be express and not implied. Failure
to object is not considered an express waiver.
In sum, express waiver requires an understanding of the right
of that person for unreasonable searches and seizure, and
full understanding of the effect of waiving or granting consent
to the search.
Second, it must have to be given by the person whose right
pertains and the search must have to be conducted in relation to
the consent given.
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3.
of
ART 129 -
Search warrants
maliciously obtained and abuse in the
service of those legally obtained.
ART 130 -
Searching
domicile without witnesses.
These crimes carry the penalty from the range of arresto mayor
maximum to prision correccional minimum.
So, you can claim these protections, SIMULTANEOUSLY. They
are not exclusive.
44
DISCUSSIONS
domicile.
2.
CRIMINAL VIOLATIONS
Also these 3 Articles in the RPC are considered as remedies:
1.
ART 128 Violation
COMMON INSTANCES
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But when the person making the arrest was not there when the
offense is committed, it is hardly expected that all the knowledge
or perspective of the witnesses would be based on their own
perceptions.
There are some which will come from the testimony or
information of eyewitness. But what is important is that these
information or testimony coming from the witnesses must have
been coupled with the evidence they have found in the scene of
the crime and therefore their perception would become personal
to them, making this as knowledge personal through them.
If the information as to the identity is based mainly on what the
informant or witnesses have relayed to them and it is not coupled
with what they have discovered personally in the scene of the
crime, then there is no satisfaction of the requirement. They must
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CARCEDO, HARVEY
LADEZA, ROEL
PAGUICAN, JOSHUA
PELONIO, AM
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August 8, 2012
2.
47
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Miss, condom Miss. Lady: Saiz lagi Sir, Man: Small Miss,
Lady: Tag Saiz Pisos Sir ba, Sa-iz. By the way, do they come
in sizes? Ive heard they come in different flavors?
This also led to the controversial decision in that American
decision in Roe vs. Wade. Abortion or the right to have an
abortion has long been decided by the US Supreme Court in this
case where in the first trimester it is allowed and there is no
limitation or regulation allowed by the State. In the second
trimester, there is a little regulation; in the third trimester, State
has the right to regulate abortion except for medical reasons. So
that is something which is not an issue about anything else but
more on the right of the mother to be let and left alone in her
decision whether she would want to have a child. Again this is in
relation to her right to privacy, to be left her the decision whether
she would want a child.
Now, in the Constitution, this right to privacy under Sec. 3, Article
III was included for the first time in the 1935 Constitution and the
prevailing rule from which this was copied from (American rule)
was that the right to privacy is extended only to tangible objects
(Tangibles Only Rule) and there must be a trespass. Now in the
privacy of communication and correspondence, if there is no
trespass, there is no applicability of the right (to privacy in relation
to the search and seizure clause). Thats why it has to be
extended. The search and seizure clause in the American
experience at the time this provision was included in 1935
Constitution was that for the search and seizure clause to apply,
there must have to be an actual trespass and what is sought to
be seized are tangible items. Now letters of communication are
not tangible if they are electronically transmitted and normally if
there is such electronic seizure of this communication, there is no
actual trespass. So to extend that to communications and
correspondence they can include this provision in 35, which was
copied until the present Constitution.
The term communications here is used in its general sense. But
what is actually covered by this privacy of communications is
communications between a government official and a private
citizen, and the communications between private citizens which
cannot be violated by the State. So the question is, what about
the communications between government officials? Are these
communications covered by this prohibition? Because again the
general concept is that the Bill of rights is a limitation to State
authority. So it is a clash between the right of the State to
exercise its powers and the right of its citizens to claim their
rights and privileges. But what if the communications are
between public officers like the Hello Garci scandal? President
talking to the Commissioner of the Comelec, can that
communication be intercepted and recorded with the use of
government facility? That has not been answered but if you try to
look at this provision in relation to the general concept of the Bill
of rights, only communications between the individuals or
government officials and individuals are generally covered by this
provision. Please dont forget the case of ZULUETA vs. CA
because thats a peculiar decision. Peculiar in the sense that they
have applied this provision when the claim is between private
individuals. That is no encroachment or alleged violation coming
from the State. It is a case between husband and the wife over
the supposed letters which were sent by the paramour to the
husband and which were unlawfully taken from the private office
of the husband and introduced as evidence in the same case. So
the SC in that case applied this provision saying that generally
when two persons contract marriage they do not actually
surrender all the rights to privacy. That is a limitation of what is
being surrendered. For obvious reasons the most common of
what is to be surrendered are known to you, all the rest and so
when the wife unlawfully entered the private office of the husband
and unlawfully or forcibly opened the cabinet where these letters,
documents and pictures were found, the SC said they are
inadmissible under the second paragraph of this Sec. 3. And it
has not been applied since then probably because there has
been no case filed with the same set of facts or husbands had
become, since they have already known the decision, had
become more.. Okay.
ZULUETA vs. CA
G.R. No. 107383 ; Feb. 20, 1996
Facts:
Cecilia Zulueta is the wife of Dr. Alfredo Martin. On 26 March 1982,
Zulueta entered the clinic of her husband, a doctor of medicine,
and in the presence of her mother, a driver and Martins secretary,
forcibly opened the drawers and cabinet in her husbands clinic
and took 157 documents consisting of private correspondence
between Dr. Martin and his alleged paramours, greetings cards,
cancelled checks, diaries, Dr. Martins passport, and photographs.
The documents and papers were seized for use in evidence in a
case for legal separation and for disqualification from the practice
of medicine which Zulueta had filed against her husband. Dr.
Martin brought the action for recovery of the documents and
papers and for damages against Zulueta with the RTC. After trial,
the trial court rendered judgment for Martin. It (1) declared that the
documents and papers are properties of Dr. Martin, (2) ordered
Zulueta to return them and (3) enjoined her from using them in
evidence. On appeal, the Court of Appeals affirmed the decision of
the Regional Trial Court. Hence, Zulueta filed this petition for
review with the Supreme Court.
Issue:
Whether or not the constitutional injunction declaring that the
privacy of communication and correspondence to be inviolable
apply even to the spouse of the aggrieved party.
Held:
The documents and papers are inadmissible in evidence. The
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The intimacies between husband and wife do not justify any one of
them in breaking the drawers and cabinets of the other and in
ransacking them for any telltale evidence of marital infidelity. A
person, by contracting marriage, does not shed his/her integrity or
his right to privacy as an individual and the constitutional protection
is ever available to him or to her.
The law insures absolute freedom of communication between the
spouses by making it privileged. Neither husband nor wife may
testify for or against the other without the consent of the affected
spouse while the marriage subsists. Neither may be examined
without the consent of the other as to any communication received
in confidence by one from the other during the marriage, save for
specified exceptions. But one thing is freedom of communication;
quite another is a compulsion for each one to share what one
knows with the other. And this has nothing to do with the duty of
fidelity that each owes to the other.
Hence, the petition for review is DENIED.
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TRINIDAD, CHE
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FREEDOM OF EXPRESSION
Now we are still with content neutral restrictions and we have
discussed the various tests generally used in determining
whether the regulation under subsequent punishment is
supposed to be valid based on the applicable tests. Now in
various situations as applied, to restate, in print media, we have
mentioned that there is lesser latitude as compared to the other
forms of mass media based on the extent of the reach of
coverage of said form of mass media. In print media itself, there
is also a distinction to be made if it were to be a news item or a
feature story. When the item subject of the regulation is an action
for libel or damages, for example, is based on a news story, the
SC has given a wider latitude for freedom of expression of media
in deference of the fact that in news items there is a daily
deadline to meet so that if there are in accuracies in the
statements, provided there is no malice intended then the
expression would be upheld over the regulation. However, if it
were to be a feature story, there is supposed to be a lesser
latitude as compared to that of the news item because in a
feature story there is a reasonable amount of time to verify the
sources and to verify the veracity or falsity of a fact which is
subject of a feature story. In one case, an old case, SC said that
care is to be taken that in publication, there is avoidance of
affirming of what is not true or reckless disregard to take
necessary steps in ascertaining its truth or falsity. That is why in
news items, where there is another person or entity involved,
they would always have a statement that they had taken steps to
secure the comment of the persons subject of the item before
they have published the item in deference to or in response to
their obligation that they must have acted diligently or prudently
to ascertain the truth or falsity of the item before it seize the libel
thing in print media because if the reason for the failure to seek
or verify its truth or falsity is careless disregard for the truth or
there is really a willful assertion of what is false then they could
not be protected under the freedom of speech, media or
expression. Now in broadcast media, we mentioned yesterday
that there is stringent regulatory powers on the part of the
government due to its nature and its accessibility. As between TV
and radio, there is more government regulation in radio based on
the nature of radio coverage and the reach of audiences which is
not similar to that of TV.
Now in freedom of the press there are four aspects to it that was
discussed in the cases of News Sound Broadcasting vs Dy and
Soriano vs Laguardia. The four aspects are as follows:
1. Freedom from prior restraint
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3,Section 7
Freedom of circulation (CHAVEZ vs GONZALES)
G.R. No. 168338
February 15, 2008
FRANCISCO CHAVEZ vs. RAUL M. GONZALES
THIS CASE IS ABOUT THE GARCI SCANDAL
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publication of that letter because that would erase the fact that
there is no malice in fact. Or if there are comments on official
proceedings this is not a fair and true report, malice in fact may
be considered as present.
Now, the absolutely privilege statements that may not be
subjected to any cause of action, the most common could be
under speech and debate clause of members of congress. They
shall not be held liable in any other place for any speech or
debate made in congress or in any committee thereof while
congress is in session, so absolutely privilege statements. Also,
statements in pleadings which are material to the cause or case
under consideration are also considered as absolutely privilege
statements. So that if the statements in the pleadings are not
material to the cause or the case under consideration they may
not fall under the relatively privilege statements. So statements
like, in the answer the allegations in paragraph 16 of the
complaint is denied, the claims of the plaintiff being absolutely
false and the plaintiff is an absolute liar. That statement cannot
be subjected to a criminal case or civil case for libel because it is
material to the case because there is a denial of the claim.
Now the other matter with respect to libel would be your truth or
proof as a defense so that question is: can you prove that truth of
the statement to avoid liability? Burikat mana siya! She is a
prostitute! . If you can prove that she is a prostitute, can you
avoid liability for libel? OK, so the general rule is that if the
statement is true provided that it is established for good motive
and for justifiable ends, proof of truth is a defense. The problem
is what is so called justifiable about claiming that the person is
burikat.
If the defamatory statement is not a crime, it is only accepted as
a defense for pubic officers in relation to discharge of official
duties. And if it amounts to a crime, it can be used as proof or
defense if the defamation is against public or private person. So if
you call a private person a thief if you can prove that he is really
a thief because he has committed theft or thievery then you can
be exempted from liability.
APPLICATION OF TESTS IN VARIOUS CONTEXTS
A. FREEDOM OF EXPRESSION AND
NATIONAL SECURITY
The other situation where the matter of free speech is usually
tested is when there is the question of the free exercise and
against or versus our national security interest. As we have said,
the dangerous tendency test is the normal test used if the
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the jury from any utterances made outside of court which may
bring about them to decide the case one way and not the other.
In our system where case is decided by a sole presiding judge or
as differentiated in collegiate courts, the so called sub due dice
rule, though applicable, would not really be that prejudicial for
parties because judges are supposed to have this proven probity
and independence that they should be swayed by publics
persuasions on a pending action.
In fact, if you remember the case of WEBB vs. DE LEON and in
the onset of that case, there was a question of whether there is
violation of the sub due dice rule, the media has kept on covering
the particular case and at that point of having prejudicial
coverage of that of case in the media. The SC made an obiter
that the judges are supposed to be insulated from all these media
coverage whether it may be prejudicial or not because of the fact
that they are supposed to be deciding cases based on the facts
and evidence presented. The so called prejudicial coverage
would only be considered as having unduly influence the judge if
there is a direct showing that there is a causal relation between
the prejudicial coverage and the decision or the resolution of the
judge.
Now, in relation, still, to the fair criticism rule, the SC has
mentioned two principles affecting ones right to criticize
courts proceedings, namely:
1.
2.
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or
Not
the
COMELECs
prohibition
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Now, if you have noticed there was an issue on this permit during
the last SONA because from the vantage point of the applicant,
the one who conducted the rally going to Batasang Pambansa
they said they have made an application and there was no
response - either to grant it or to deny it.
And under the law, which is correct, if under BP 880, if there is no
word within, I think, 24 or 48 hours from the time the application
is made, it is deemed approved.
(a) It shall be the duty of the mayor or any official acting in his
behalf to issue or grant a permit unless there is clear and
convincing evidence that the public assembly will create a clear
and present danger to public order, public safety, public
convenience, public morals or public health.(b) The mayor or any
official acting in his behalf shall act on the application within two (2)
working days from the date the application was filed, failing which,
the permit shall be deemed granted. Should for any reason the
mayor or any official acting in his behalf refuse to accept the
application for a permit, said application shall be posted by the
applicant on the premises of the office of the mayor and shall be
deemed to have been filed.(c) If the mayor is of the view that there
is imminent and grave danger of a substantive evil warranting the
denial or modification of the permit, he shall immediately inform the
applicant who must be heard on the matter.
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(d) The action on the permit shall be in writing and served on the
application within twenty-four hours.
(e) If the mayor or any official acting in his behalf denies the
application or modifies the terms thereof in his permit, the applicant
may contest the decision in an appropriate court of law.
(f) In case suit is brought before the Metropolitan Trial Court, the
Municipal Trial Court, the Municipal Circuit Trial Court, the
Regional Trial Court, or the Intermediate Appellate Court, its
decisions may be appealed to the appropriate court within fortyeight (48) hours after receipt of the same. No appeal bond and
record on appeal shall be required. A decision granting such permit
or modifying it in terms satisfactory to the applicant shall, be
immediately executory.
(g) All cases filed in court under this Section shall be decided
within twenty-four (24) hours from date of filing. Cases filed
hereunder shall be immediately endorsed to the executive judge
for disposition or, in his absence, to the next in rank.
(h) In all cases, any decision may be appealed to the Supreme
Court.
(i) Telegraphic appeals to be followed by formal appeals are
hereby allowed.
Section 7. Use of public thoroughfare - Should the proposed
public assembly involve the use, for an appreciable length of time,
of any public highway, boulevard, avenue, road or street, the
mayor or any official acting in his behalf may, to prevent grave
public inconvenience, designate the route thereof which is
convenient to the participants or reroute the vehicular traffic to
another direction so that there will be no serious or undue
interference with the free flow of commerce and trade.
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What happened in this case was that the IBP National Office
applied for a rally permit to conduct a rally at Mendiola Bridge. It
was granted without any hearing but they were allowed to
conduct that public assembly or rally at Plaza Miranda. The IBP
still proceeded to conduct their rally at the designated time and
date per application and also at the place of the application but
not in the place as indicated in the permit. They went to Plaza
Mendiola and they were charge for violation of BP 880, for
conducting a rally without a permit. They went to the SC on that
issue eventually and the SC upheld the position of the IBP
because the change of the tenor of the application in the grant of
the permit as applied for can only be done if there is justifiable
reasons for doing so under the clear and present danger rule and
there is a hearing conducted to determine whether or not indeed
there is a need to alter or change the terms of the application.
OK!
2.
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was slated for a specific public place. It is thus reversible error for
the appellate court not to have found such grave abuse of
discretion and, under specific statutoryprovision, not to have
modified the permit "in terms satisfactory to the applicant."
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liable for it? YES! Of course you can because that is no longer
protected speech.
But how about government speech? If PNOY says that the
Philippines GDP last year 6.4 blah blah number one. If that
turns out to be false, could you hold him liable? That is the
question.
Or in, (NAGRING ANG CELL NI CHAM, sir: HELLO!) public
advertisements, government advertisements on TV.
This has been brought to you by Kapisanan ng mga
Broadcasters ng Pilipinas through the help Government
information office, blah blah Can those messages regulated,
that if it turns out to be false or there is an ascertion of falsehood
making it as true, can they be held liable?
MACLA, JAMAIL
ORCULLO, HAZEL BETH
Now, it has not been tested here but in the US, there is a mix
reaction on whether a HECKLERs veto is allowed. AGAIN, the
HECKLERS VETO is that act of the state of preventing that
person considered as a heckler from making his speech or
utterance for fear that violence may erupt if he will be allowed to
make his expression.
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FREEDOM OF INFORMATION
Section 7. The right of the people to information on matters of
public concern shall be recognized. Access to official records,
and to documents and papers pertaining to official acts,
transactions, or decisions, as well as to government research
data used as basis for policy development, shall be afforded the
citizen, subject to such limitations as may be provided by law.
Now this case of CenPEG vs COMELEC involves freedom of
information refers to the matter of disclosure of the source code
of the automated national and local elections of 2010. The source
code is actually as described in this case the readable
representation of the instructions on how the machine would
work during the elections. In simple terms, the SC even likened it
to a blueprint of instructions or a recipe if you would want to be
more simple about it on how the machine would read and
eventually count, canvass and eventually transmit the votes.
Freedom of information-- the petitioner here wanted to examine
the source code. The COMELEC, however, failed to make the
source code available until the source code was delivered and
deposited with the Banko Sentral ng Pilipinas. It was too late
because the elections have already been conducted. But still in
this petition for mandamus, the SC granted the petition
compelling the COMELEC to disclose the source code of the
AES technology for the automated elections. Rightfully so
because this will be the same source code, perhaps, that we will
be using in the 2013 elections.
G.R. No. 189546 September 21, 2010
CENTER FOR PEOPLE EMPOWERMENT IN
GOVERNANCE, vs.COMMISSION ON ELECTIONS,
This case concerns the duty of the Commission on Elections
(COMELEC) to disclose the source code for the Automated
Election System (AES) technologies it used in the 2010 national
and local elections.
The Court finds the petition and this last manifestation meritorious.
The pertinent portion of Section 12 of R.A. 9369 is clear in that
"once an AES technology is selected for implementation, the
Commission shall promptly make the source code of that
technology available and open to any interested political party or
groups which may conduct their own review thereof." The
COMELEC has offered no reason not to comply with this
65
requirement of the law. Indeed, its only excuse for not disclosing
the source code was that it was not yet available when CenPEG
asked for it and, subsequently, that the review had to be done,
apparently for security reason, "under a controlled environment."
The elections had passed and that reason is already stale.
WHEREFORE, the Court GRANTS the petition for mandamus and
DIRECTS the COMELEC to make the source codes for the AES
technologies it selected for implementation pursuant to R.A. 9369
immediately available to CenPEG and all other interested political
parties or groups for independent review.
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procedural due process when the school for higher learning will
impose sanctions upon a student.
ADMU vs Capulong
G.R. No. 99327 May 27, 1993
Corollary to their contention of denials of due process is their
argument that it is Ang Tibay case 25 and not theGuzman case
which is applicable in the case at bar. Though both cases
essentially deal with the requirements of due process,
the Guzman case is more apropos to the instant case, since the
latter deals specifically with the minimum standards to be satisfied
in the imposition of disciplinary sanctions in academic institutions,
such as petitioner university herein, thus:
(1) the students must be informed in writing of the nature and
cause of any accusation against them; (2) that they shall have the
right to answer the charges against them with the assistance of
counsel, if desired: (3) they shall be informed of the evidence
against them (4) they shall have the right to adduce evidence in
their own behalf; and (5) the evidence must be duly considered by
the investigating committee or official designated by the school
authorities to hear and decide the case.
It cannot seriously be asserted that the above requirements were
not met. When, in view of the death of Leonardo Villa, petitioner
Cynthia del Castillo, as Dean of the Ateneo Law School, notified
and required respondent students on February 11, 1991 to submit
within twenty-four hours their written statement on the
incident, 27 the records show that instead of filing a reply,
respondent students requested through their counsel, copies of the
charges. 28While of the students mentioned in the February 11,
1991 notice duly submitted written statements, the others failed to
do so. Thus, the latter were granted an extension of up to February
18, 1991 to file their statements.
Indubitably, the nature and cause of the accusation were
adequately spelled out in petitioners' notices dated February 14
and 20, 1991. 30 It is to be noted that the February 20, 1991 letter
which quoted Rule No. 3 of its Rules of Discipline as contained in
the Ateneo Law School Catalogue was addressed individually to
respondent students. Petitioners' notices/letters dated February 11,
February 14 and 20 clearly show that respondent students were
given ample opportunity to adduce evidence in their behalf and to
answer the charges leveled against them.
The requisite assistance of counsel was met when, from the very
start of the investigations before the Joint Administration FacultyStudent Committee, the law firm of Gonzales Batiler and Bilog and
Associates put in its appearance and filed pleadings in behalf of
respondent students.
Respondent students may not use the argument that since they
were not accorded the opportunity to see and examine the written
statements which became the basis of petitioners' February 14,
1991 order, they were denied procedural due process. 31 Granting
that they were denied such opportunity, the same may not be said
to detract from the observance of due process, for disciplinary
cases involving students need not necessarily include the right to
cross examination. An administrative proceeding conducted to
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FACTS:
The teachers in this case were on probationary status on fixed
term contracts from the time they were employed and until the
expiration of their teaching contracts. Subsequently, before they
were able to complete three consecutive years of service, they
were informed by the school that with the expiration of their
contract to teach, their contract would no longer be renewed.
Hence, they filed a complaint for illegal dismissal.
The Labor Arbiter ruled that the teachers were illegally dismissed
and stated that Article 281 of the Labor Code on probationary
employment applied to the case.
On appeal, the NLRC ruled that the applicable law is Section 92 of
the Manual regulations for Private Schools and not Article 281 of
the Labor Code. However, the NLRC affirmed the Labor Arbiters
decision since the teachers were terminated on the basis of
standards which were made known to them only near the end of
their probationary period.
On a petition for certiorari, the Court of Appeals reversed the
decision of the NLRC because the teachers were not actually
dismissed in that their contracts merely expired.
RULING:
The Supreme Court stated that nothing is illegitimate in defining
the school-teacher on fixed term basis. The school, however,
cannot forget that its system of fixed-term contract is a system that
operates during the probationary period and for this reason is
subject to the terms of Article 281 of the Labor Code. Unless this
reconciliation is made, the requirements of this Article on
probationary status would be fully negated as the school may
freely choose not to renew contracts simply because their terms
have expired.
Given the clear constitutional and statutory intents, the Supreme
Court concluded that in a situation where the probationary status
overlaps with a fixed-term contract not specifically used for the
fixed term it offers, Article 281 should assume primacy and the
fixed-period character of the contract must give way.
To highlight what the Supreme Court mean by a fixed-term contract
specifically used for the fixed term it offers, a replacement teacher,
for example, may be contracted for a period of one year to
temporarily take the place of a permanent teacher on a one-year
study leave. The expiration of the replacement teacher's
contracted term, under the circumstances, leads to no probationary
status implications as she was never employed on probationary
basis; her employment is for a specific purpose with particular
focus on the term and with every intent to end her teaching
relationship with the school upon expiration of this term.
While the Supreme Court can grant that the standards were duly
communicated to the teachers and could be applied beginning the
1st trimester of the school year 2000-2001, glaring and very basic
gaps in the school's evidence still exist.
The exact terms of the standards were never introduced as
evidence; neither does the evidence show how these standards
were applied to the teachers. Without these pieces of evidence the
Supreme Court had nothing to consider and pass upon as valid or
invalid for each of the teachers. Inevitably, the non-renewal (or
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NON-ESTABLISHMENT CLAUSE
1.
2.
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2.
No public money or property shall be appropriated,
applied, paid, or employed, directly or indirectly, for the use,
benefit, or support of any sect, church, denomination, sectarian
institution, or system of religion, or of any priest, preacher,
minister, other religious teacher, or dignitary as such, except
when such priest, preacher, minister, or dignitary is assigned to
the armed forces, or to any penal institution, or government
orphanage or leprosarium.
3.
XXX
Aglipay vs. Ruiz (Not Discussed by Atty. Montejo)
a.
THOSE WHICH THE RELIGIOUS CLAUSES
PROHIBITS, WHICH IS PROHIBITTED (?)
b.
In this, the establishment prevails over potential
accommodation requests.
When there is an exercise of an act, the State may prohibit such
exercise depending on these 3 accommodations.
Boy Pick-up: Neneng, Hinding hindi kita sasagutin ng OO.
Neneng B: Bakit?
Boy Pick-up: Kasi, True or False ang tanong mo. Boom!
ELMAN, JENIKA
TRAVILLA, CHERRYL
PENDATUN, DATS
DUMAGAN, MENCHIE
"What's your road, man?--holyboy road, madman
road, rainbow road, guppy road, any road. It's an
anywhere road for anybody anyhow."
~ Jack Kerouac, On the Road, Part 4, Ch. 1
The important thing is to strive towards a goal which is
not immediately visible. That goal is not the concern of
the mind, but of the spirit.
~Antoine de Saint-Exupry,
Flight to Arras, 1942
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FREEDOM OF RELIGION
So we are still under freedom of religion. Now, the multiple test
used in the free exercise clause is at least based on the
decisions of the SC would be:
1.) Clear and Present Danger - this was applied in discussion
on flag salute cases. Remember the case of Ebralinag. This is
similarly applied in the discussion on freedom of expression, the
question in every case is whether the words used in such
circumstances and is in such a nature as to create a clear and
present danger that they will make about the serious evil which
the state has a right to prevent. If you relate this to the case
Ebralinag v. Division Superintendent of Schools of Cebu, is the
regulation on flag salute constitutive of a violation of free exercise
by reason of the penalty imposable? However the claim of
freedom of religion must have to be upheld over that regulation.
To put it differently whether to allow the freedom of religion to
create a situation that will bring about the evil sought to be
avoided. In the old case, the possibility that the citizenry will be
composed of un-nationalistic individuals because children were
not compelled to salute the flag. In the Ebralinag case it was
explained that the evil sought to be avoided is presumed happen
will come to pass simply because to be patriotic or nationalist will
not be achieved by requiring the children to salute the flag among
others.
EBRALINAG v. THE DIVISION SUPERINTENDENT OF
SCHOOLS OF CEBU
G.R. No. 95770 March 1, 1993
Facts: The petitioners in both (consolidated) cases were expelled
from their classes by the public school authorities in Cebu for
refusing to salute the flag, sing the national anthem and recite the
patriotic pledge as required by Republic Act No. 1265 (An Act
making flag ceremony compulsory in all educational institutions) of
July 11, 1955 , and by Department Order No. 8 (Rules and
Regulations for Conducting the Flag Ceremony in All Educational
Institutions) dated July 21, 1955 of the Department of Education,
Culture and Sports (DECS)making the flag ceremony compulsory
in all educational institutions. Jehovah's Witnesses admitted that
they taught their children not to salute the flag, sing the national
anthem, and recite the patriotic pledge for they believe that those
are" acts of worship" or "religious devotion" which they "cannot
conscientiously give to anyone or anything except God". They
consider the flag as an image or idol representing the State. They
think the action of the local authorities in compelling the flag salute
and pledge transcends constitutional limitations on the State's
power and invades the sphere of the intellect and spirit which the
Constitution protect against official control.
Issue: Whether or not school children who are members or a
religious sect may be expelled from school for disobedience of
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In the case of Texas vs. Johnson regarding the flag burning issue
it has been upheld that such is a valid freedom of expression
provided that the flag that you burn is you own, meaning that it is
your own property and for so long as you burn your own property
which will not result in burning of another person's property that
is sufficiently protected under freedom of expression. So the flag
is therefore not icon or an object which would be imbued with
such interest that it will promote nationalism or patriotism on
order to protect the state interest is not the least intrusive, that
regulation cannot be also considered as valid. So there must
have to be a determination of the court on whether or not of all
the available means to protect the compelling state interest, this
is the least intrusive of all these measures.
The other case is Estrada vs. Escritor, if you remember this case,
there was an administrative case for gross immorality involving a
Supreme Court employee because of a supposed to be immoral
liaison between two married individuals separated from their
respective spouses. They have claimed that their association or
union is authorized as part of their religious practices and in fact
they were able to show that this practice had long been practiced
in their religion and there is a document signed by them,
supposedly witnessed by their God that their union is a union
base on their belief. The SC applied the compelling interest test.
We have discussed this already in freedom of expression, that if
there is a compelling state interest, the state has the right to
protect. The state may regulate the expression, in this case
between the exercise of religion.
As we have known from our freedom of expression discussion,
there must have a compelling interest that must be shown. What
that compelling state interest is not defined or contained in an
enumerated list of items that would fall under that. It is merely
characterized as something preferred like national security,
preservation of the lives of multiple individuals and not violating
explicit constitutional protection. So if we go by the extreme of
your religion. Take for example your religion believes of offering a
virgin to your god, we have always said that it may be regulated
not only because it is difficult to find one now (just kidding ) but
because it would result to something that the state has the right
to prevent. Nobody is entitled to kill a person; it is said under the
Constitution, without due process of law. So even if with the claim
of religious right, that this is free exercise -- we believed that we
can be saved from all of these if we offer a virgin to our god
that may not be allowable because there is a compelling state
interest.
Under that compelling state interest in relation to our discussion
in freedom of expression we also mentioned that there must have
to be showing that the intrusion or regulation of the government
is necessary and that It is the least intrusive measure on the free
exercise to be an allowable regulation. If the means to regulate in
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ESTRADA v. ESCRITOR
AM No. P021651 June 20, 2000
Facts: Escritor is a court interpreter since 1999 in the RTC of Las
Pinas City. She has been living with Quilapio, a man who is not her
husband, for more than twenty five years and had a son with him
as well. Respondents husband died a year before she entered into
the judiciary while Quilapio is still legally married to another
woman.
Complainant Estrada requested the Judge of said RTC to
investigate respondent. According to complainant, respondent
should not be allowed to remain employed therein for it will appear
as if the court allows such act.
Respondent claims that their conjugal arrangement is permitted by
her religionthe Jehovahs Witnesses and the Watch Tower and
the Bible Trace Society. They allegedly have a Declaration of
Pledging Faithfulness under the approval of their congregation.
Such a declaration is effective when legal impediments render it
impossible for a couple to legalize their union.
Issue: Whether or Not the State could penalize respondent for
such conjugal arrangement.
Held: No. The State could not penalize respondent for she is
exercising her right to freedom of religion. The free exercise of
religion is specifically articulated as one of the fundamental rights
in our Constitution. As Jefferson put it, it is the most inalienable and
sacred of human rights. The States interest in enforcing its
prohibition cannot be merely abstract or symbolic in order to be
sufficiently compelling to outweigh a free exercise claim. In the
case at bar, the State has not evinced any concrete interest in
enforcing the concubinage or bigamy charges against respondent
or her partner. Thus the States interest only amounts to the
symbolic
preservation
of
an
unenforced
prohibition.
Furthermore, a distinction between public and secular morality and
religious morality should be kept in mind. The jurisdiction of the
Court extends only to public and secular morality.
The Court further states that our Constitution adheres the
benevolent neutrality approach that gives room for accommodation
of religious exercises as required by the Free Exercise Clause.
This benevolent neutrality could allow for accommodation of
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2.
3.
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In order to do away with the said practices the R.A. No. 7438 has
responded by requiring them to document the custodial
investigation report which must be:
1.) In writing;
2.) Read and understood by the confessant and
3.) Explained to him, if the he does not know how to read
and write;
4.) In the language that he speaks and understands.
Extra-judicial confession have the same requirement before it will
be signed, which are:
1.) It must be in writing;
2.) It must be read and understood by the person and
3.) It must be explained to him, if the he does not know
how to read and write;
4.) The explanation must be in the language that he
speaks and understands;
5.) It must be signed by him with the assistance of his
counsel.
If there is no counsel because there is a valid waiver, the law still
requires that it must still have to be signed by that person in the
presence of any of his parents, older 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.
Remember, when a person is arrested without warrant, the usual
proceedings to be conducted by the prosecutor against the
person is called inquest proceeding. Then the information is
thereafter filed in court and if the accused wants to avail himself
of the provisions of Rule 112 of the Rules of Court on Preliminary
Investigation, can he avail of that and what are the conditions?
Well, the ROC requires that he must avail of that in 5 days from
knowledge that the information has been filed and he must have
waived his right under Art. 125 of the Revised Penal Code which
is arbitrary detention (ang arbitrary detention kay Art. 124 man,
basi Delay in the delivery of detained persons to the proper
judicial authorities, you mean?) R.A. No. 7438 covers Art. 125.
Any waiver of the right under Art. 125 of the RPC must have to
be in writing and must have to be signed by that person with the
assistance of counsel.
Again, this is in an expansion of the ROC and because this is
substantive law, it shall govern and this is also the law which has
expanded somehow the Constitutional provision, though it did not
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PINOON, LOREVILL
~Owen Feltham
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RIGHT TO BAIL
When Right may be Invoked
Right to bail. It must be understood in relation to Rule 114 of the
Rules on Criminal Procedure because when the Constitution
provides when bail is a matter of right or when it is a matter of
discretion, the basis is when the offense which a person is
charged would carry with it the penalty of Reclusion Perpetua or
higher, bail is a matter of discretion. However, in the Rules of
Court, it provides for certain circumstances which a person in a
criminal case may have bail as a matter of discretion even if the
penalty is less than Reclusion Perpetua, this is when the penalty
is six years and one day to twenty years and there is showing of
the following circumstances such as being a recidivist, habitual
delinquent, that the accused has previously escape, there is
probability of flight a free list or on bail or risk that he would
commit another crime. Rule 114 section 5.
Sec. 5. Bail, when discretionary. XXX
If the penalty imposed by the trial court is imprisonment
exceeding six (6) years, the accused shall be denied bail, or his
bail shall be cancelled upon a showing by the prosecution, with
notice to the accuse, of the following or other similar
circumstances:
(a) That he is a recidivist, quasi-recidivist, or habitual delinquent,
or has committed the crime aggravated by the circumstance of
reiteration;
(b) That he has previously escaped from legal confinement,
evaded sentence, or violated the conditions of his bail without
valid justification;
(c) That he committed the offense while under probation, parole,
or conditional pardon;
(d) That the circumstances of his case indicate the probability of
flight if released on bail; or
(e) That there is undue risk that he may commit another crime
during the pendency of the appeal.
XXX
If a person is not yet charged, can a person put up bail? If he is
under custody he could. What if the accused is already charged
in court but not yet arrested? Can he put up bail? I think the
logical thinking would tell us that as soon as the information is
charged, even if no warrant is issued yet, you must be allowed to
2.
3.
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reconsideration stating again the reasons for the delay, and this
time raising the ground that based on the Rules of Court, there
must have to be a notice to the appellant. The CA is allowed to
dismiss the appeal motu proprio upon the failure of the appellant
to file the appellants brief but with prior notice to the appellant.
The reason for granting the appellant to give the appellant such
notice is to give the appellant to state the reason for the failure
and for the court to determine whether the reasons are
satisfactory or justified. Can the CA in this particular case motu
proprio dismiss the appeal for failure to file the appellants brief
even without notice to the appellant and if so should this be a
violation of his right to due process? The Supreme Court said in
this case, there is no violation of due process. There is even no
need for notice as may have been required by the rules.
Ordinarily, it is so required in order to give the accused the
reasons for the failure and for the court to appreciate whether
those reasons are satisfactory or justified. But, the facts of the
case would tell us, according to the SC, that accuseds appellant
failed to file appellants brief despite 4 extensions sought and
granted. He even failed to file the undertaking in the motion for
reconsideration filed. Again due process is merely to give an
opportunity to the party to plead his case. The facts of the case
would show that more than sufficient opportunity has been
granted. It also highlights the constitutional discussion on due
process which does not include the right to appeal. As we made
mention, the right to appeal is only included in the Rules of Court
under Rule 115, Section 1(i) with respect to the accused having
this right to appeal. The right to appeal is therefore statutory and
not constitutional with respect to cases or parties where cases
are filed in our system because the due process is satisfied
substantially when the case is heard even in the first instance
that it is filed, tried and decided.
G.R. No. 183975
September 20, 2010
GREGORIO DIMARUCOT y GARCIA vs. PEOPLE
Petitioner cannot simply harp on the mistakes and negligence of
his lawyer allegedly beset with personal problems and emotional
depression. The negligence and mistakes of counsel are binding
on the client.18 There are exceptions to this rule, such as when the
reckless or gross negligence of counsel deprives the client of due
process of law, or when the application of the general rule results
in the outright deprivation of ones property or liberty through a
technicality. However, in this case, we find no reason to exempt
petitioner from the general rule. The admitted inability of his
counsel to attend fully and ably to the prosecution of his appeal
and other sorts of excuses should have prompted petitioner to be
more vigilant in protecting his rights and replace said counsel with
a more competent lawyer. Instead, petitioner continued to allow his
counsel to represent him on appeal and even up to this Court,
apparently in the hope of moving this Court with a fervent plea for
relaxation of the rules for reason of petitioners age and medical
condition. Verily, diligence is required not only from lawyers but
also from their clients.
PRESUMPTION OF INNOCENCE
The next right of the accused is the presumption of innocence.
The presumption of innocence, as the term suggests, is merely a
presumption. It does not create any protection on the part of the
accused that the state cannot in any other way prove his guilt.
The presumption simply gives the state the burden of proving,
first, that the accused has committed the act and that the act
constitutes a crime. When that burden is met, then, the burden of
evidence shifts to the accused. The accused has now the burden
of proving his innocence. The state is not even barred from
legislating a law which would provide for a prima facie
presumption of guilt like your law on anti-fencing. When you are
in possession of a property which was not brought through legal
means, which you know or should have known to have been
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going to tell a lie? So, thats the moral or legal dilemma. Finally,
we said that we will file a motion for leave to file a motion for a
demurrer to evidence and file a demurrer and cross a bridge
when there is a bridge. Because, when you file a demurrer there
is no defense evidence yet. So we did just that and try to put the
question to be answered later hoping that the demurrer will be
granted. The demurrer was granted, and so, we did not cross the
bridge because there was no bridge yet. The short of the long
story is that the accused was killed. You know the Davao Dog
Squad.
Ok, the question is, if the accused had the right to be heard by
himself personally, again, theres that moral or legal question, if
you know that he is going to perjure himself would you put him in
the stand? You ask the question, what made you conclude that
he is going to tell a falsehood? Was his first story the correct
story? The second, the third, the fourth? You can never know
because you were never really there as much as the court was
not there and also the prosecutors. So it leaves him to tell his
story. Objectively, we have known in legal ethics, you take the
case regardless of your opinion as to the innocence or guilt of the
person. At least, thats what the book says. Its different if you tell
the person to tell a lie. But, with your set of questions, the
answers have been different in four occasions. While there may
be suspicion that he is not telling the truth, the question is, which
truth? Your truth or his truth? Or which of those answers really
are true? And which are not? So, that is when he has to claim
his right to be heard.
To be heard by counsel, well, there is that old saying, that a
person may be convicted not because he is guilty but because he
does not know how to protect his innocence. Even the most
learned man in the law, if he is personally involved in litigation,
may not have the test of objectivity in proceeding with the case.
He might be too emotional about it. He may be too distracted to
be able to properly try the case. Objections, I watch a portion of
this civil action in HBO and John Travolta was trying a case
against a seasoned lawyer. The seasoned lawyer is a teacher in
remedial law, particularly in evidence so there were clips of him
teaching. He was telling his student that you object. If you, by
chance, slept during the trial, upon waking up what do you say?
Objection, your honor! In any case, to be assisted by counsel, is
different from the right to be assisted by counsel preferably of his
own choice under section 12. In the rights of the accused during
trial, to be assisted by counsel, the court has the obligation to
inform the accused just like the investigating officer in the
investigation under section 12 that he has the right to be
represented by counsel and if he cannot afford one, the state will
provide him with one. But that is the extent of the similarity
between section 12 and section 14. Because in section 12, we
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time while you are already in court to read. They say, just
remember the basics in objecting in Evidence.
RIGHT TO BE INFORMED OF THE NATURE AND
CAUSE OF ACCUSATION
Now, the right to be informed of the nature and the causes of
accusation is normally satisfied between the period or stay of
arraignment. During arraignment, the accusations is read to the
accused and this must be read to him in a language he speaks
and understands because there must be meaningful transmission
of what the charges are with respect to the accused. If there is no
prior arraignment, there is no valid proceeding. The arraignment
must bepersonally to the accused and the accused must also
personally enter his plea. However, if he refuses to enter a plea
after the reading of the information, the court may enter a plea of
not guilty; and he must be there in person. Unlike in the US as
we may have seen in some shows or moviesarraignment may
be dispensed with and the counsel may enter a plea.
There are 3 reasons why the information must have to be read:
1.) to furnish the accused of the charge and allow him to
prepare for his defense
2.) for the accused to avail of any conviction or acquittal
from any further prosecution, meaning, he will have to
or he may be able to claim double jeopardy
3.) to inform the court of a sufficiency of information if it
warrants a conviction because before arraignment, we
all know that the Prosecution can still amend the
information whether in form or in substance.
But after it is read, it can only be amended when it refers to form
and if substance, there must have to be the exercise of discretion
by the court in order to protect the rights of the rights of the
accused. And normally, this is with respect to his rights against
double jeopardy. So if the information does not charge an
offense, then probably the defense can seek the quashal of the
information. Again, this is to inform the court as to whether the
information is sufficient.
In the case of People vs. Bartolini, the information did not
indicate the age of the victim. I think, it is a crime of rape. (Note:
It was a 2010 case, 626 SCRA 527, it was really a rape case and
the information did not indicate the age of the victim) The
question is: Is the defect fatal? The SC said: Yes, the defect is
fatal because the accused upon reading the information must
have been informed that he could possibly face the death
penalty. Again, age here is an essential element of the offense so
to qualify it and make the penalty death. So, if that was not
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because she was therefor the dogs of her employer. She was
testifying in Spanish or Mexican and there was a question on
whether what the court employee should do, to interpret or to
translate. Because to translate is literally to transpose it from
English to Ilocano or Cebuano and vice-versa, so to translate is
to give your understanding of the question or of the answer and it
may give it another meaning. The Judge was saying you should
not translate, you should interpret. If you have seen those
proceedings, the stenograhers were using this machines
attached to a CPU and the lawyers would automatically read
everything in English. Here, we dont have those and whats
worse, if you go to trial your English in the transcript of
stenographic notes would be horrible.
There was one trial and I have this question, Is it not that your
motor vehicle is a Route 10 vehicle? The case was reckless
imprudence, a clients vehicle has bumped along Ladislawa road.
The thing was my clients vehicle bumped that PUJ and the PUJ
was Route 10, which supposedly should not pass that Buhangin
Road, it should be within downtown only. And so that PUJ was
plying that area which he was not supposed to do, he was
negligent that was our defense. So when the driver was
testifying, I asked, Is it not that your motor vehicle is a Route 10
vehicle? Here comes the interpreter: Tinuod ba nga ang imong
sakyanan daut-daut?
DUMANDAN, GAB
ILUSTRISIMO, ROGIE
TORRES, EGAY
What if that person is not a court employee? Could they just ask
anybody from the public to act as interpreter? By the way, is that
an interpreter or a translator? What do they exactly do, do they
interpret or do they translate?
If you translate, what do you do? you interpret and when you
interpret, you translate.
You must have read in the internet in the archives of the file of OJ
Simpson the killing of his spouse and of the lover. That was in
the first time that we were at least in Philippine history being spot
doing court room proceedings or case because the court room
proceedings were televised from start to finish and the Judge
there, a Japanese American allowed that coverage to be done
and so everybody who was interested in law follow those
proceedings. There was a question on interpretation or
translation raised because one the witnesses was a househelp
who was Mexican and apparently saw OJ going in or coming out
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~Vince Lombardi
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The time limits set by the Speedy Trial Act of 1998 do not thus preclude
justifiable postponements and delays when so warranted by the
situation. To the Court, the reasons for the postponements and delays
attendant to the present case reflected above are not unreasonable.
While the records indicate that neither petitioner nor his counsel was
notified of the resetting of the pre-trial to October 23, 2003, the same
appears to have been occasioned by oversight or simple negligence
which, standing alone, does not prove fatal to the prosecutions case.
The faux pas was acknowledged and corrected when the MeTC recalled
the arrest warrant it had issued against petitioner under the mistaken
belief that petitioner had been duly notified of the October 23, 2003 pretrial setting.
Reiterating the Courts pronouncement in Solar Team Entertainment,
Inc. that "speedy trial" is a relative and flexible term, Lumanlaw v.
Peralta, Jr. summons the courts to maintain a delicate balance between
the demands of due process and the strictures of speedy trial on the one
hand, and the right of the State to prosecute crimes and rid society of
criminals on the other.
Applying the balancing test for determining whether an accused has
been denied his constitutional right to a speedy trial, or a speedy
disposition of his case, taking into account several factors such as the
length and reason of the delay, the accuseds assertion or non-assertion
of his right, and the prejudice to the accused resulting from the delay, the
Court does not find petitioner to have been unduly and excessively
prejudiced by the "delay" in the proceedings, especially given that he
had posted bail.
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IMMUNITIES
RIGHT TO SPEEDY DISPOSITION OF CASES
The final item would be the so-called immunities. In your outline,
there are two immunities stated. They are USE IMMUNITY and
TRANSACTIONAL IMMUNITY. There are situations where a
person maybe compelled to testify and by reason of his
compulsion to testify, his right against self-incrimination maybe
violated in order not to put him in jeopardy or be penalized for
such compulsory admission or confession which he cannot
escape by reason of being invoked that would always or usually
would grant that person some form of immunity from prosecution
either under the innocent rule or transactional rule.
The most common of TRANSACTIONAL IMMUNITY is that
there is an agreement between that person and the investigating
body or person that any testimony will be provided for the crime
under investigation cannot be used against him. So there is an
agreement. The most common of which is when the person of
the accused is discharged as a state witness. When can an
accused be discharged as a state witness under our rules of
court?
There are several accused and he (one of them) does not appear
to be the most guilty; there is no other direct testimony that may
be utilized by the prosecution to prove the guilt of the accused.
And there is the requirement that the testimony of the State
Witness can be corroborated by other witness on certain material
point. It is also required under the Rules of Court that the state
witness must have to execute an affidavit which would contain
his testimony for which he must actually testify. If he does not
testify on that then it is not. If he refuses to testify based on the
terms of the discharge, the discharge will not be valid; he can still
be prosecuted and the transactional immunity cannot be claimed.
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judges are fined for failing to resolve the cases within the said
mandated periods.
Now, you will notice in your outline, this case of DIMARUCUT
VERSUS PEOPLE OF THE PHILIPPINES. There was an
abandonment of an appeal. The court still applied the rule on
speedy disposition of justice even if the appeal had been
abandoned. The court still resolved it, dismissed it, on
consideration that there is still this right to speedy disposition of
cases.
DIMARUCOT vs. PEOPLE OF THE PHILIPPINES
630 SCRA 456
Section 8, paragraph 1, Rule 124 of the Revised Rules of Criminal
Procedure, as amended, provides:
SEC. 8. Dismissal of appeal for abandonment or failure to
prosecute. The Court of Appeals may, upon motion of the
appellee or motu proprio and with notice to the appellant in either
case, dismiss the appeal if the appellant fails to file his brief within
the time prescribed by this Rule, except where the appellant is
represented by a counsel de oficio.
It is clear under the foregoing provision that a criminal case may be
dismissed by the CA motu proprio and with notice to the appellant
if the latter fails to file his brief within the prescribed time. The
phrase "with notice to the appellant" means that a notice must first
be furnished the appellant to show cause why his appeal should
not be dismissed.13
In the case at bar, there is no showing that petitioner was served
with a notice requiring him to show cause why his appeal should
not be dismissed for failure to file appellants brief. The purpose of
such a notice is to give an appellant the opportunity to state the
reasons, if any, why the appeal should not be dismissed because
of such failure, in order that the appellate court may determine
whether or not the reasons, if given, are satisfactory.
Notwithstanding such absence of notice to the appellant, no grave
abuse of discretion was committed by the CA in considering the
appeal abandoned with the failure of petitioner to file his appeal
brief despite four (4) extensions granted to him and noncompliance to date. Dismissal of appeal by the appellate court
sans notice to the accused for failure to prosecute by itself is not
an indication of grave abuse. Thus, although it does not appear
that the appellate court has given the appellant such notice before
dismissing the appeal, if the appellant has filed a motion for
reconsideration of, or to set aside, the order dismissing the appeal,
in which he stated the reasons why he failed to file his brief on time
and the appellate court denied the motion after considering said
reasons, the dismissal was held proper. Likewise, where the
appeal was dismissed without prior notice, but the appellant took
no steps either by himself or through counsel to have the appeal
reinstated, such an attitude of indifference and inaction amounts to
his abandonment and renunciation of the right granted to him by
law to prosecute his appeal.
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than 90 days, so that she can act on them promptly and without
delay.
Unlike speedy trial, if there is a valid claim and the grant is also
valid and justified, it will be put to a stop to the criminal
prosecution. It means that the Court will grant the right of the
accused to speedy trial, will dismiss the case, and the dismissal
is always with prejudice. It would be considered as an
adjudication of the merits, and the accused is thereby freed. But
if all the evidences are in, the trial has already been terminated
and the only reason why there is no disposition yet is because
the court has failed to resolve the case by failing to render a
decision or failing in to render a resolution on the motion for
reconsideration on account of a motion for reconsideration filed.
This will not mean that if the right to speedy disposition of cases
is claimed that that court will consider the case dismissed.
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The only situation, as you may have noticed in all these cases on
the speedy disposition of the cases you may have read, that will
result in the dismissal of the charges is when it is still on
reinvestigation stage.
Take for example the old case of TATAD VERSUS
SANDIGANBAYAN. When Tatad was investigated it took eleven
years for the investigation to be completed. And so when Tatad
asked for dismissal, the Sandiganbayan refused. However, the
Supreme Court granted the petition, and it caused the dismissal
of the case because there is no justifiable reason why the
investigation by the investigating officer would determine whether
there is probable cause or well founded belief to charge
respondent in court. This is not a full-blown trial on the merits
where the guilt or innocence of the accused is determined.
So if there is such delay, again, the Supreme Court has used the
FOUR FOLD FACTORS: the length of the delay in disposing the
case; the reason for such delay in disposing the case; the fact
that the respondent has claimed or not claimed his right to
speedy disposition of cases, and the prejudice that is caused by
the delay on the person of the respondent. The Supreme Court
has applied the FOUR FOLD FACTORS to balance if whether
the State has still the right to prosecute upon finding probable
cause or should the accused be freed from the anxiety of criminal
prosecution despite the lapse and delay in resolving whether or
not there is probable cause to charge him in court. Again, when
there is already full presentation of evidence, the clam for speedy
disposition of cases will not be resolved for dismissal. But if there
is yet to be a formal charge or information in court, the delay will
be or within the stage of the investigation level then the court
may grant the right to resolve the claim for speedy disposition of
cases which eventually dismiss the case. This must have to be
related to the provisional dismissal of cases, which we shall be
taking up later, based on double jeopardy. The same principle
must still be applied in provisional dismissal. You remember this
TIME BAR RULE, right? The one year period. Does that change
the substantive law on presentation of offenses? The answer is
no. But under the TIME BAR RULE, the principle is that, if there
is failure to prosecute within that one or two years, there is a
disputable presumption that the State could no longer prove this
case and it therefore waived to prosecute the offender. The
rationale behind the TIME BAR RULE is the same with
disposition of cases when the case is still under investigation. If
indeed, there is a prima facie case or probable cause and wellfounded belief to charge accused in court, why take so long? It
does not need a full-blown trial on the merits. But the
investigating officer has to read and compare the complaint,
counter-affidavits and other pleadings. If there is so much
unjustified delay, then there is that presumption that the State
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KINTANAR, LOVELY
LIMBO-CABUHAT, VERNA
DINIAY, DONNI
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101
the check being paid for an outstanding obligation. The fact that
the issuance of check was attended by fraud takes it away from
the protection of non-payment or non-imprisonment for nonpayment of civil debts and obligations because that would
substantively change the nature of the violation of a mere civil
obligation to one which would be criminal in character. As have
been discussed therein the Supreme Court said that the
gravamen of the offense is the introduction into the economy or
in circulation checks which are valueless or which would bounce
or without which could not have been cashed upon presentment
or when it is presented for payment when it is due and
demandable. So it is not simply by reason of non-payment of a
debt.
Lozano vs. Martinez (Dec. 18, 1986)
Facts: A motion to quash the charge against the petitioners for
violation of the BP 22 was made, contending that no offense was
committed, as the statute is unconstitutional. Such motion was
denied by the RTC. The petitioners thus elevate the case to the
Supreme Court for relief. The Solicitor General, commented that it
was premature for the accused to elevate to the Supreme Court
the orders denying their motions to quash. However, the Supreme
Court finds it justifiable to intervene for the review of lower court's
denial of a motion to quash.
Issue: Whether BP 22 transgresses the constitutional inhibition
against imprisonment for debt.
Held: The offense punished by BP 22 is the act of making and
issuing a worthless check or a check that is dishonored upon its
presentation for payment. It is not the non-payment of an obligation
which the law punishes. The law is not intended or designed to
coerce a debtor to pay his debt. The thrust of the law is to prohibit,
under pain of penal sanctions, the making of worthless checks and
putting them in circulation.
So is the same reason for the subsidiary imprisonment for nonpayment of a fine. Under the Revised Penal Code the judgment
imposed of penalizing the accused to pay a fine and if such fine
may not be paid, subsidiary imprisonment may be imposed. That
is not a violation of this Section 20 because the payment of a fine
is not a payment of a contractual debt. It is supposed to be a
form of a penalty which if not paid can make the accused convict
subjected to subsidiary imprisonment.
Acts which when done were innocent this discusses the
concept of ex post facto laws as well as bill of attainder
under Section 22.
Section 22. No ex post facto law or bill of attainder shall be
enacted.
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INVOLUNTARY SERVITUDE
Section 18.
xxx
No involuntary servitude in any form shall exist except as a
punishment for a crime whereof the party shall have been duly
convicted.
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In a later case, the SC, the case of People vs. Yorac, the SC did
not apply the supervening fact doctrine because the victim was
mauled and he was hit in different parts of his body including his
head but the initial medical examination showed that his injuries
will heal or there is only a 10-day period for him to heal or to be
out of his regular confinement(?) for which he was only charged
with slight physical injuries. Not more than 10 days, slight
physical injuries. The accused upon arraignment has pleaded
guilty and was sentenced accordingly. However, when the victim
was still in the hospital had undergone another medical
examination. And found that under the second medical
examination that the victim was actually suffering from or has
suffered from severe head concussion which if not attended may
result to his death. There was actually a crack which was not
seen before when he underwent his first medical examination. So
they filed this time another case for frustrated murder and the SC
said that this is not a supervening fact. The injury was there
before, however, it was not discovered and so the
2.
Second exception now has been provided for by the
rules, the facts constituting the graver offense became known or
were discovered only after the filing of the former information.
I think that they put it in a very simple term that there is a filing of
a former information. It should have been that after the first
jeopardy could have attached. Filing an information and there
must have to be arraignment at least of the accused. At the very
least. Just the same when it could not be a supervening fact, the
fact constituting graver offense was discovered or was made
known to him only after the first information.
3.
When there is an invalid plea of guilt to a lesser
offense.
PEOPLE VS. YORAC (1971)
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between them. If you have like did not file for a motion for a
motion for reconsideration, did not seek further review on appeal,
then it becomes final. The dismissal becomes final and it may be
constitutive of res adjudicata between the parties, you can argue
on that line. But definitely you cannot argue that to re-file it would
violate your privilege or protection against double jeopardy.
Double jeopardy; elements. Double 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. None of these requisites applies where the
Ombudsman only conducted a preliminary investigation of the
same criminal offense against the respondent public officer. The
dismissal of a case during preliminary investigation does not
constitute double jeopardy, preliminary investigation not being
part of the trial. Hon. Waldo Q. Flores, et al v. Atty. Antonio F.
Montemayor, G.R. No. 170146, June 8, 2011.
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CAETE, CHAM
GO, FAITH
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Manila Electric Company case does not actually say what are the
matters actually covered, like the Writ of Habeas Data, unlike in
the case of Tapuz vs. del Rosario and this case of Secretary vs.
Manalo (568 SCRA 1), the Supreme Court was able to explain
what the so-called Writ of Amparo should or would lie on.
And by reason of this lack of decision, that lack of discussion as
to what Writ of Habeas Data is, we are left with the definitions as
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Manalo has now passed as they have escaped from captivity and
surfaced. But while respondents admit that they are no longer in
detention and are physically free, they assert that they are not
"free in every sense of the word as their "movements continue to
be restricted for fear that people they have named in their Judicial
Affidavits and testified against (in the case of Raymond) are still at
large and have not been held accountable in any way. These
people are directly connected to the Armed Forces of the
Philippines and are, thus, in a position to threaten respondents'
rights to life, liberty and security. Respondents claim that they are
under threat of being once again abducted, kept captive or even
killed, which constitute a direct violation of their right to security of
person.
In sum, respondents assert that their cause of action consists in
the threat to their right to life and liberty, and a violation of their
right to security.
Let us put this right to security under the lens to determine if it has
indeed been violated as respondents assert. The right to security
or the right to security of person finds a textual hook in Article III,
Section 2 of the 1987 Constitution which provides, viz:
Sec. 2. 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...
At the core of this guarantee is the immunity of one's person,
including the extensions of his/her person - houses, papers, and
effects - against government intrusion. Section 2 not only limits the
state's power over a person's home and possessions, but more
importantly, protects the privacy and sanctity of the person himself.
In addition, it was likewise ruled that a petition for a writ of amparo
is confined to instances of extralegal killings and enforced
disappearances or to threats thereof.
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shanty actually, would you expect that the suspect would fight it
out with the police officers?
So this is part of, perhaps, with by reason of the practices of
these state agents and where information is gathered, stored and
collected and thereafter stored on some individuals which will
meet the definition of the state, that you have a right, this is the
ruling
in
the
case
of
Manila
Electric Company, the Supreme Court said this is the sign to
protect by means of judicial complaint, the image, privacy, honor,
information and freedom of information of an individual. It is
meant to provide a forum to enforce ones right to the truth and to
informational privacy.
Thus safeguarding the constitutional guarantee of a persons
right to life, regarding liberty and security against abuse in this
age of information or technology.
In the Writ of Habeas Data Rule, if a complaint is filed, and the
court finds the petition to be sufficient and duly proven in the
course of time, the court can direct these persons who are
responsible for collecting, storing and gathering and storing these
data to:
1.
2.
The court can do that. But who are the persons tasked with
gathering, collecting or storing data? Nobody would admit that.
We have filed a case here, involving some lawyers who were
supposed to have been in the list of, in the order of battle(?) of
the military. The problem is nobody would admit that there is
such a order of battle.The military officers simply argued before
the court, No we dont have any recording. Do you store or
gather data, No we dont. So what is there to erase or what is
there to correct? So that petition was dismissed. We filed a
review by certiorari to the Supreme Court. It still has to be acted
on. The practice may be known but the practice is not part of the
standard operating procedure. This is like your spy; no one would
actually admit they have done it.
I dont know if you are familiar with Republic Act 9595 the Antiphoto and Voyeurism Act of 2009. This republic act penalizes
the act of taking a photograph or video recording of, well the
law says, naked body, female breasts, private parts, private area,
(Sir M: I dont know what that is.) and the violation of ones
right to privacy or expectation, reasonable expectation to
privacy. So that probably means that if you were in a room and
you were doing a private act, whatever that private act is, and
you take the photograph or a video of your partner without his or
her consent, that would be punishable under this law. And the
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persons right to life, liberty and security against abuse in this age
of information technology.
It bears reiteration that like the writ of amparo, habeas data was
conceived as a response, given the lack of effective and available
remedies, to address the extraordinary rise in the number of
killings and enforced disappearances. Its intent is to address
violations of or threats to the rights to life, liberty or security as a
remedy independently from those provided under prevailing Rules.
Castillo v. Cruzunderscores the emphasis laid down in Tapuz v. del
Rosario that the writs of amparo and habeas data will NOT issue to
protect purely property or commercial concerns nor when the
grounds invoked in support of the petitions therefor are vague or
doubtful.[16] Employment constitutes a property right under the
context of the due process clause of the Constitution.
CALIZO, RUBY
LINOG, HANNAH
MANILA
ELECTRIC COMPANY, ALEXANDER S. DEYTO and
RUBEN A. SAPITULA vs. ROSARIO GOPEZ LIM, (G.R. No.
184769, October 5, 2010)
ISSUE: May an employee invoke the remedies available under
such writ where an employer decides to transfer her workplace on
the basis of copies of an anonymous letter posted therein
imputing to her disloyalty to the company and calling for her to
leave, which imputation it investigated but fails to inform her of the
details thereof?
HELD: No. Respondents plea that she be spared from complying
with MERALCOs Memorandum directing her reassignment to the
Alabang Sector, under the guise of a quest for information or data
allegedly in possession of petitioners, does not fall within the
province of a writ of habeas data.
Section 1 of the Rule on the Writ of Habeas Data provides:
Section 1. Habeas Data. The writ of habeas data is a remedy
available to any person whose right to privacy in life, liberty or
security is violated or threatened by an unlawful act or omission of
a public official or employee or of a private individual or entity
engaged in the gathering, collecting or storing of data or
information regarding the person, family, home and
correspondence of the aggrieved party.
The habeas data rule, in general, is designed to protect by means
of judicial complaint the image, privacy, honor, information, and
freedom of information of an individual. It is meant to provide a
forum to enforce ones right to the truth and to informational
privacy, thus safeguarding the constitutional guarantees of a
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