CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty.

Vincent Paul Montejo

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mere fact that legislation may supplement and add to or prescribe a penalty for the violation of a self-executing constitutional provision does not render such a provision ineffective in the absence of such legislation. The omission from a constitution of any express provision for a remedy for enforcing a right or liability is not necessarily an indication that it was not intended to be self-executing. The rule is that a self-executing provision of the constitution does not necessarily exhaust legislative power on the subject, but any legislation must be in harmony with the constitution, further the exercise of constitutional right and make it more available. Subsequent legislation however does not necessarily mean that the subject constitutional provision is not, by itself, fully enforceable. Sec. 10, second par., Art. XII of the of the 1987 Constitution is a mandatory, positive command which is complete in itself and which needs no further guidelines or implementing laws or rules for its enforcement. From its very words the provision does not require any legislation to put it in operation. It is per se judicially enforceable When our Constitution mandates that [i]n the grant of rights, privileges, and concessions covering national economy and patrimony, the State shall give preference to qualified Filipinos , it means just that qualified Filipinos shall be preferred. And when our Constitution declares that a right exists in certain specified circumstances an action may be maintained to enforce such right notwithstanding the absence of any legislation on the subject; consequently, if there is no statute especially enacted to enforce such constitutional right, such right enforces itself by its own inherent potency and puissance, and from which all legislations must take their bearings. Where there is a right there is a remedy. Ubi jus ibi remedium It should be stressed that while the Malaysian firm offered the higher bid it is not yet the winning bidder. The bidding rules expressly provide that the highest bidder shall only be declared the winning bidder after it has negotiated and executed the necessary contracts, and secured the requisite approvals. Since the "Filipino First Policy provision of the Constitution bestows preference on qualified Filipinos the mere tending of the highest bid is not an assurance that the highest bidder will be declared the winning bidder. Resultantly, respondents are not bound to make the award yet, nor are they under obligation to enter into one with the highest bidder. For in choosing the awardee respondents are mandated to abide by the dictates of the 1987 Constitution the provisions of which are presumed to be known to all the bidders and other interested parties. The Filipino First Policy is a product of Philippine nationalism. It is embodied in the 1987 Constitution not merely to be used as a guideline for future legislation but primarily to be enforced; so must it be enforced. WIGBERTO E. TAADA et. al. v. EDGARDO ANGARA et. al. G.R. No. 118295 [1997] PHSC 1126 (2 May 1997) Facts: The President of the Philippines ratified the WTO Agreement which is composed of the Agreement Proper and "the associated legal instruments referred to as Multilateral Trade Agreements. On the other hand, the Final Act signed by Secretary Navarro embodies not only the WTO Agreement (and its integral annexes aforementioned) but also (1) the Ministerial Declarations and Decisions and (2) the Understanding on Commitments in Financial Services. The Ministerial Decisions and Declarations are twenty-five declarations and decisions on a wide range of matters, such as measures in favor of least developed countries, notification procedures, relationship of WTO with the International Monetary Fund (IMF), and agreements on technical barriers to trade and on dispute settlement. The Understanding on Commitments in Financial Services dwell on, among other things, standstill or limitations and qualifications of commitments to existing non-conforming measures, market access, national treatment, and definitions of non-resident supplier of financial services, commercial presence and new financial service. Issue: W/N the "letter, spirit and intent" of the Constitution mandating "economic nationalism" are violated by the so-called "parity provisions" and "national treatment" clauses scattered in various parts not only of the WTO Agreement and its annexes but also in the Ministerial Decisions and Declarations and in the Understanding on Commitments in Financial Services. Ruling: It is true that in the recent case of Manila Prince Hotel vs . Government Service Insurance System , et al ., this Court held that "Sec. 10, second par., Art. XII of the 1987 Constitution is a mandatory, positive command which is complete in itself and which

CONSTITUTIONAL LAW II ARTICLE III BILL OF RIGHTS INDIVIDUAL RIGHTS

I. DUE PROCESS AND EQUAL PROTECTION AS LIMITATIONS ON POLICE POWER, EMINENT DOMAIN AND TAXATION FUNDAMENTAL PRINCIPLES ON CONSTITUTIONAL LAW AND THE BILL OF RIGHTS

A.

MANILA PRINCE HOTEL v. GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL CORPORATION, COMMITTEE ON PRIVATIZATION and OFFICE OF THE GOVERNMENT CORPORATE COUNSEL - G.R. No. 122156 [1997] PHSC 856 (3 February 1997) Facts: Respondent Government Service Insurance System (GSIS), pursuant to the privatization program of the Philippine Government under Proclamation No. 50 dated 8 December 1986, decided to sell through public bidding 30% to 51% of the issued and outstanding shares of respondent MHC. The winning bidder, or the eventual "strategic partner," is to provide management expertise and/or an international marketing/reservation system, and financial support to strengthen the profitability and performance of the Manila Hotel. In a close bidding held on 18 September 1995 only two (2) bidders participated: petitioner Manila Prince Hotel Corporation, a Filipino corporation, which offered to buy 51% of the MHC or 15,300,000 shares at P41.58 per share, and Renong Berhad, a Malaysian firm, with ITT-Sheraton as its hotel operator, which bid for the same number of shares at P44.00 per share, or P2.42 more than the bid of petitioner. Pending the declaration of Renong Berhad as the winning bidder/strategic partner and the execution of the necessary contracts, petitioner matched the bid price of P44.00 per share tendered by Renong Berha and sent a manager's check issued by Philtrust Bank for Thirty-three Million Pesos (P33.000.000.00) as Bid Security to match the bid of the Malaysian Group, Messrs Renong Berhad which respondent GSIS refused to accept. Perhaps apprehensive that respondent GSIS has disregarded the tender of the matching bid and that the sale of 51% of the MHC may be hastened by respondent GSIS and consummated with Renong Berhad, petitioner came to this Court on prohibition and mandamus. On 18 October 1995 the Court issued a temporary restraining order enjoining respondents from perfecting and consummating the sale to the Malaysian firm. Ruling: A constitution is a system of fundamental laws for the governance and administration of a nation. It is supreme, imperious, absolute and unalterable except by the authority from which it emanates. It has been defined as the fundamental and paramount law of the nation. It prescribes the permanent framework of a system of government, assigns to the different departments their respective powers and duties, and establishes certain fixed principles on which government is founded. The fundamental conception in other words is that it is a supreme law to which all other laws must conform and in accordance with which all private rights must be determined and all public authority administered. Under the doctrine of constitutional supremacy, if a law or contract violates any norm of the constitution that law or contract whether promulgated by the legislative or by the executive branch or entered into by private persons for private purposes is null and void and without any force and effect. Thus, since the Constitution is the fundamental, paramount and supreme law of the nation, it is deemed written in every statute and contract. Quite apparently, Sec. 10, second par., of Art XII is couched in such a way as not to make it appear that it is non-self-executing but simply for purposes of style. But, certainly, the legislature is not precluded from enacting other further laws to enforce the constitutional provision so long as the contemplated statute squares with the Constitution. Minor details may be left to the legislature without impairing the selfexecuting nature of constitutional provisions. In self-executing constitutional provisions, the legislature may still enact legislation to facilitate the exercise of powers directly granted by the constitution, further the operation of such a provision, prescribe a practice to be used for its enforcement, provide a convenient remedy for the protection of the rights secured or the determination thereof, or place reasonable safeguards around the exercise of the right. The

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

needs no further guidelines or implementing laws or rule for its enforcement. From its very words the provision does not require any legislation to put it in operation. It is per se judicially enforceable." However, as the constitutional provision itself states, it is enforceable only in regard to "the grants of rights, privileges and concessions covering national economy and patrimony" and not to every aspect of trade and commerce. It refers to exceptions rather than the rule. The issue here is not whether this paragraph of Sec. 10 of Art. XII is selfexecuting or not. Rather, the issue is whether, as a rule, there are enough balancing provisions in the Constitution to allow the Senate to ratify the Philippine concurrence in the WTO Agreement. And we hold that there are. While the Constitution indeed mandates a bias in favor of Filipino goods, services, labor and enterprises, at the same time, it recognizes the need for business exchange with the rest of the world on the bases of equality and reciprocity and limits protection of Filipino enterprises only against foreign competition and trade practices that are unfair. In other words, the Constitution did not intend to pursue an isolationist policy. It did not shut out foreign investments, goods and services in the development of the Philippine economy. While the Constitution does not encourage the unlimited entry of foreign goods, services and investments into the country, it does not prohibit them either. In fact, it allows an exchange on the basis of equality and reciprocity, frowning only on foreign competition that is unfair. Furthermore, the constitutional policy of a "self-reliant and independent national economy" does not necessarily rule out the entry of foreign investments, goods and services. It contemplates neither "economic seclusion" nor "mendicancy in the international community." The WTO reliance on "most favored nation," "national treatment," and "trade without discrimination" cannot be struck down as unconstitutional as in fact they are rules of equality and reciprocity that apply to all WTO members. Aside from envisioning a trade policy based on "equality and reciprocity," the fundamental law encourages industries that are "competitive in both domestic and foreign markets," thereby demonstrating a clear policy against a sheltered domestic trade environment, but one in favor of the gradual development of robust industries that can compete with the best in the foreign markets. Constitutions are designed to meet not only the vagaries of contemporary events. They should be interpreted to cover even future and unknown circumstances. It is to the credit of its drafters that a Constitution can withstand the assaults of bigots and infidels but at the same time bend with the refreshing winds of change necessitated by unfolding events. JUAN DOMINO v. COMMISSION ON ELECTIONS, NARCISO Ra. GRAFILO, JR., EDDY B. JAVA, JUAN P. BAYONITO, JR., ROSARIO SAMSON and DIONISIO P. LIM, SR. LUCILLE CHIONGBIAN-SOLON, intervenor. - G.R. No. 134015 [1999] PHSC 513 (19 July 1999) Facts: On 25 March 1998, DOMINO filed his certificate of candidacy for the position of Representative of the Lone Legislative District of the Province of Sarangani indicating in his certificate that he had resided in the constituency where he seeks to be elected for one (1) year and two (2) months immediately preceding the election. On 30 March 1998, private respondents Narciso Ra. Grafilo, Jr., Eddy B. Java, Juan P. Bayonito, Jr., Rosario Samson and Dionisio P. Lim, Sr., filed with the COMELEC a Petition to Deny Due Course to or Cancel Certificate of Candidacy of DOMINO alleging that DOMINO, contrary to his declaration in the certificate of candidacy, is not a resident, much less a registered voter, of the province of Sarangani where he seeks election. On 6 May 1998, the COMELEC 2nd Division promulgated a resolution declaring DOMINO disqualified as candidate for the position of representative of the lone district of Sarangani for lack of the one-year residence requirement and likewise ordered the cancellation of his certificate of candidacy. On 11 May 1998, the day of the election, the COMELEC issued Supplemental Omnibus Resolution No. 3046, ordering that the votes cast for DOMINO be counted but to suspend the proclamation if winning, considering that the Resolution disqualifying him as candidate had not yet become final and executory. The result of the election, per Statement of Votes certified by the Chairman of the Provincial Board of Canvassers, shows that DOMINO garnered the highest number of votes over his opponents for the position of Congressman of the Province of Sarangani. On 15 May 1998, DOMINO filed a motion for reconsideration of the Resolution dated 6 May 1998, which was denied by the COMELEC en banc in its decision dated 29 May 1998. Hence, the present Petition for

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Certiorari with prayer for Preliminary Mandatory Injunction alleging, in the main, that the COMELEC committed grave abuse of discretion amounting to excess or lack of jurisdiction when it ruled that he did not meet the one-year residence requirement. Ruling: (from the separate opinionthe topic fundamental principles of consti law is not categorically discussed in the decision) When the Constitution speaks of residence, the word should be understood, consistent with Webster, to mean actual, physical and personal presence in the district that a candidate seeks to represent. In other words, the candidate's presence should be substantial enough to show by overts acts his intention to fulfill the duties of the position he seeks. The Constitution is the most basic law of the land. It enshrines the most cherished aspirations and ideals of the population at large. It is not a document reserved only for scholarly disquisition by the most eminent legal minds of the land. In ascertaining its import, lawyers are not meant to quibble over it, to define its legal niceties, or to articulate its nuances. Its contents and words should be interpreted in the sense understood by the ordinary men and women who place their lives on the line in its defense and who pin their hopes for a better life on its fulfillment. The call for simplicity in understanding and interpreting our Constitution has been made a number of times. About three decades ago, this Court declared: It is to be assumed that the words in which constitutional provisions are couched express the objective sought to be attained. They are to be given their ordinary meaning except where technical terms are employed in which case the significance thus attached to them prevails. As the Constitution is not primarily a lawyer's document, it being essential for the rule of law to obtain that it should ever be present in the people's consciousness, its language as much as possible should be understood in the sense they have in common use. What it says according to the text of the provision to be construed compels acceptance and negates the power of the courts to alter it, based on the postulate that the framers and the people mean what they say. Thus there are cases where the need for construction is reduced to a minimum. Petitioner Juan Domino having failed to adduce sufficient convincing evidence to prove his actual, physical and personal presence in the district of Sarangani for at least one year prior to the 1998 elections, rendered him ineligible and his election to office null and void. Rev. Ely Velez Pamatong v. Commission on Elections. - G.R. No. 161872 [2004] PHSC 379 (13 April 2004) Facts: Petitioner Rev. Elly Velez Pamatong filed his Certificate of Candidacy for President on December 17, 2003. Respondent Commission on Elections (COMELEC) refused to give due course to petitioners Certificate of Candidacy. On January 15, 2004, petitioner moved for reconsideration was denied by the COMELEC. The COMELEC declared petitioner and thirty-five (35) others nuisance candidates who could not wage a nationwide campaign and/or are not nominated by a political party or are not supported by a registered political party with a national constituency. In this Petition For Writ of Certiorari, petitioner seeks to reverse the resolutions which were allegedly rendered in violation of his right to equal access to opportunities for public service under Section 26, Article II of the 1987 Constitution, by limiting the number of qualified candidates only to those who can afford to wage a nationwide campaign and/or are nominated by political parties. In so doing, petitioner argues that the COMELEC indirectly amended the constitutional provisions on the electoral process and limited the power of the sovereign people to choose their leaders. The COMELEC supposedly erred in disqualifying him since he is the most qualified among all the presidential candidates, i.e., he possesses all the constitutional and legal qualifications for the office of the president, he is capable of waging a national campaign since he has numerous national organizations under his leadership, he also has the capacity to wage an international campaign since he has practiced law in other countries, and he has a platform of government. Petitioner likewise attacks the validity of the form for the Certificate of Candidacy prepared by the COMELEC. Petitioner claims that the form does not provide clear and reasonable guidelines for determining the qualifications of candidates since it does not ask for the candidates bio-data and his program of government. Ruling: There is no constitutional right to run for or hold public office and, particularly in his case, to seek the presidency. What is recognized is merely a privilege subject to limitations imposed by

Compiled by: Thyrza Marbas/Percy Donalvo/Carrie Mae Bangayan

CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

law. Section 26, Article II of the Constitution neither bestows such a right nor elevates the privilege to the level of an enforceable right. There is nothing in the plain language of the provision which suggests such a thrust or justifies an interpretation of the sort. The equal access provision is a subsumed part of Article II of the Constitution, entitled Declaration of Principles and State Policies. The provisions under the Article are generally considered not selfexecuting, and there is no plausible reason for according a different treatment to the equal access provision. Like the rest of the policies enumerated in Article II, the provision does not contain any judicially enforceable constitutional right but merely specifies a guideline for legislative or executive action. The disregard of the provision does not give rise to any cause of action before the courts. Obviously, the provision is not intended to compel the State to enact positive measures that would accommodate as many people as possible into public office. The approval of the Davide amendment indicates the design of the framers to cast the provision as simply enunciatory of a desired policy objective and not reflective of the imposition of a clear State burden. As earlier noted, the privilege of equal access to opportunities to public office may be subjected to limitations. Some valid limitations specifically on the privilege to seek elective office are found in the provisions of the Omnibus Election Code on Nuisance Candidates and COMELEC Resolution No. 6452 dated December 10, 2002 outlining the instances wherein the COMELEC may motu proprio refuse to give due course to or cancel a Certificate of Candidacy. As long as the limitations apply to everybody equally without discrimination, however, the equal access clause is not violated. Equality is not sacrificed as long as the burdens engendered by the limitations are meant to be borne by anyone who is minded to file a certificate of candidacy. In the case at bar, there is no showing that any person is exempt from the limitations or the burdens which they create. Significantly, petitioner does not challenge the constitutionality or validity of Section 69 of the Omnibus Election Code and COMELEC Resolution No. 6452 dated 10 December 2003. Thus, their presumed validity stands and has to be accorded due weight. Clearly, therefore, petitioners reliance on the equal access clause in Section 26, Article II of the Constitution is misplaced. ARMANDO G. YRASUEGUI v. PHILIPPINE AIRLINES, INC., G.R. No. 168081October 17, 2008 Facts: Petitioner Armando G. Yrasuegui was a former international flight steward of Philippine Airlines, Inc. (PAL). He stands five feet and eight inches (58) with a large body frame. The proper weight for a man of his height and body structure is from 147 to 166 pounds, the ideal weight being 166 pounds, as mandated by the Cabin and Crew Administration Manual of PAL. Due to his weight problem, PAL advised him to go on an extended vacation leave to address his weight concerns. Subsequently, for failure to meet the companys weight standards despite being given leave to trim down, he was removed from flight duty. Despite the lapse of a ninety-day period given him to reach his ideal weight, petitioner remained overweight. On January 3, 1990, he was informed of the PAL decision for him to remain grounded until such time that he satisfactorily complies with the weight standards. On November 13, 1992, PAL finally served petitioner a Notice of Administrative Charge for violation of company standards on weight requirements. He was given ten (10) days from receipt of the charge within which to file his answer and submit controverting evidence. On June 15, 1993, petitioner was formally informed by PAL that due to his inability to attain his ideal weight, and considering the utmost leniency extended to him which spanned a period covering a total of almost five (5) years, his services were considered terminated effective immediately. His motion for reconsideration having been denied, petitioner filed a complaint for illegal dismissal against PAL. The petitioner now invokes the equal protection guaranty of the Constitution. Ruling: In the absence of governmental interference, the liberties guaranteed by the Constitution cannot be invoked. Put differently, the Bill of Rights is not meant to be invoked against acts of private individuals. Indeed, the United States Supreme Court, in interpreting the Fourteenth Amendment, which is the source of our equal

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protection guarantee, is consistent in saying that the equal protection erects no shield against private conduct, however discriminatory or wrongful. Private actions, no matter how egregious, cannot violate the equal protection guarantee.

B.

BASIC PRINCIPLES ON THE FUNDAMENTAL POWERS OF THE STATE, THEIR CHARACTERISTICS, SIMILARITIES AND DISTINCTIONS, AND THEIR LIMITATIONS DUE PROCESS IN GENERAL ARTICLE III, SECTION 1, 1987 CONSTITUTION

C.

Procedural and Substantive Publication of Laws TANADA RULING, E.O. 200

THE SUMMARY DISMISSAL BOARD AND THE REGIONAL APPELLATE BOARD, PNP, REGION VI, ILOILO CITY v. C/INSP. LAZARO TORCITA - G.R. No. 130442 [2000] PHSC 490 (6 April 2000) Facts: Twelve administrative complaints were filed against C/Insp. Lazaro Torcita, by Manuel Puey, Jesus Puey, Alex Edwin del Rosario. The twelve administrative complaints were the subject of administrative hearings before the Summary Dismissal Board of the PNP. At the pre-trial, the parties and their respective counsels agreed that the twelve cases shall be consolidated into one "major complaint" for "conduct unbecoming of a police officer" under Par. e, Sec. 3, Rule II, Memorandum Circular No. 92-006 pursuant to RA 6975. The Board did not find sufficient evidence to establish that Torcita threatened anybody with a gun, nor that a serious confrontation took place between the parties. The Board also found that there was no sufficient evidence that the urinating incident took place, and held that the charges of violation of domicile and illegal search were not proven. The Board found that Lazaro Torcita was "in the performance of his official duties when the incident happened; however, he committed a breach of internal discipline by taking alcoholic drinks while in the performance of same. Whereupon, C/Insp. Torcita filed a petition for certiorari in the Regional Trial Court of Iloilo City, Branch 31, questioning the legality of the conviction of an offense for which he was not charged, "which conviction is a nullity because of the lack of procedural due process of law." Ruling: It is glaringly apparent from a reading of the titles of the twelve administrative cases filed against C/Insp. Torcita, earlier quoted, that none of the charges or offenses mentioned or made reference to the specific act of being drunk while in the performance of official duty. The records do not bear out the specific acts or conduct constituting the charge/offense in the twelve cases which were consolidated at the pre-hearing conference into a single case of "Conduct Unbecoming of a Police Officer." Notably, there is no indication or warning at all in the summary dismissal proceedings that C/Insp. Torcita was also being charged with breach of internal discipline consisting of taking alcoholic drinks while in the performance of his duties. The omission is fatal to the validity of the judgment finding him guilty of the offense for which he was not notified nor charged. Summary dismissal proceedings are governed by specific requirements of notification of the charges together with copies of affidavits and other attachments supporting the complaints, and the filing of an answer, together with supporting documents. It is true that consistent with its summary nature, the duration of the hearing is limited, and the manner of conducting the hearing is summary, in that sworn statements may take the place of oral testimonies of witnesses, cross-examination is confined only to material and relevant matters, and prolonged arguments and dilatory proceedings shall not be entertained. (Section 4, Memorandum Circular No. 92-006). However, notification of the charges contemplates that respondent be informed of the specific charges against him. Torcita was entitled to know that he was being charged with being drunk while in the performance of duty, so that he could traverse the accusation squarely and adduce evidence in his defense. Although he was given an opportunity to be heard on the multiple and broad charges initially filed against him, the absence of specification of the offense for which he was eventually found guilty is not a proper observance

Compiled by: Thyrza Marbas/Percy Donalvo/Carrie Mae Bangayan

CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

of due process. There can be no short-cut to the legal process (Alonte vs. Savellano Jr., 287 SCRA 245). It is a requirement of due process that the parties be informed of how the litigation was decided with an explanation of the factual and legal reasons that led to the conclusions of the Court (ABD Overseas Manpower Corp. vs. NLRC, 286 SCRA 454).

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extradition proceedings is the need to be more deferential to the judgment of a co-equal branch of the government, the Executive, which has been endowed by our Constitution with greater power over matters involving our foreign relations. Needless to state, this balance of interests is not a static but a moving balance which can be adjusted as the extradition process moves from the administrative stage to the judicial stage and to the execution stage depending on factors that will come into play. In sum, we rule that the temporary hold on private respondent's privilege of notice and hearing is a soft restraint on his right to due process which will not deprive him of fundamental fairness should he decide to resist the request for his extradition to the United States. There is no denial of due process as long as fundamental fairness is assured a party. ARNOLD P. MOLLANEDA v. LEONIDA C. UMACOB - G.R. No. 140128 [2001] PHSC 1429 (6 June 2001) Facts: The case stemmed from the affidavit-complaint for sexual harassment filed by Leonida Umacob against Arnold Mollaneda with the Civil Service Commission - Regional Office XI, Davao City (CSCRO XI) in September 1994. On July 7, 1997, the Commission issued Resolution No. 973277 finding petitioner guilty of grave misconduct and conduct grossly prejudicial to the best interest of the service. He was meted the penalty of dismissal from the government service with all its accessory penalties. Forthwith, petitioner filed a motion for reconsideration but was denied in Resolution No. 981761. Feeling aggrieved, petitioner filed with the Court of Appeals a petition for review but the Court of Appeals rendered its Decision affirming in toto Resolution No. 973277 of the Commission. Issue: W/N the petitioner is denied his right to due process Ruling: No. The fact that the Commission assigned Atty. Buena to hear and receive evidence does not render its factual findings unworthy of credence. In laying down the precedent that the matter of assigning values to the testimony of witnesses is best performed by trial courts or administrative bodies rather than by appellate courts, this Court merely recognizes that the trial court or the administrative body as a trier of facts is in a better position to assess the demeanor of the witnesses and the credibility of their testimonies as they were within its proximal view during the hearing or investigation. At any rate, it cannot be gainsaid that the term "administrative body or agency" includes the subordinate officials upon whose hand the body or agency delegates a portion of its authority. Included therein are the hearing officers through whose eyes and ears the administrative body or agency observes the demeanor, conduct and attitude of the witnesses and listens to their testimonies. It must be emphasized that the appointment of competent officers to hear and receive evidence is commonly resorted to by administrative bodies or agencies in the interest of an orderly and efficient disposition of administrative cases. It must be addressed that, the Commission's act of delegating the authority to hear and receive evidence to Atty. Buena is not without legal basis. Section 47, Book V of Executive Order No. 292 (otherwise known as the Administrative Code of 1987) provides that the Commission may deputize any department or agency or official or group of officials to conduct an investigation on the complaint filed by a private citizen against a government official or employee. The results of the investigation shall be submitted to the Commission with recommendation as to the penalty to be imposed or other action to be taken. Going further, petitioner complains that he was not furnished a copy of Atty. Buena's notes and recommendation. The Court cannot empathize with him. In Ruiz v. Drilon , we unequivocally held that a respondent in an administrative case is not entitled to be informed of the findings and recommendation of any investigating committee created to inquire into the charges filed against him. He is entitled only to the administrative decision based on substantial evidence made of record and a reasonable opportunity to meet the charges and the evidence presented against him during the hearing. Besides, Atty. Buena's findings and recommendation are internal communications between him and the Commission and, therefore, confidential. The Report remains an internal and confidential matter to be used as part - although not controlling - of the basis for the decision. Only when the party adversely affected by the decision has filed and perfected an appeal to the Civil Service Commission may all the records of the case, including the aforesaid Report be forwarded to the CSC. In the latter appellate tribunal, the respondent's counsel may be allowed to read and/or be given a copy of the Report to

SECRETARY OF JUSTICE v. HON. RALPH C. LANTION, Presiding Judge, Regional Trial Court of Manila, Branch 25, and MARK B. JIMENEZ - G.R. No. 139465. [2000] PHSC 1176 (17 October 2000) Issue: W/N Mark Jimenez is entitled to the due process right to notice and hearing during the evaluation stage of the extradition process Ruling: No, he is not entitled to right to notice and hearing during the evaluation stage of the extradition process. An extradition proceeding is sui generis. It is not a criminal proceeding which will call into operation all the rights of an accused as guaranteed by the Bill of Rights. To begin with, the process of extradition does not involve the determination of the guilt or innocence of an accused. His guilt or innocence will be adjudged in the court of the state where he will be extradited. Hence, as a rule, constitutional rights that are only relevant to determine the guilt or innocence of an accused cannot be invoked by an extraditee especially by one whose extradition papers are still undergoing evaluation. Private respondent would also impress upon the Court the urgency of his right to notice and hearing considering the alleged threat to his liberty "which may be more priceless than life." The supposed threat to private respondents liberty is perceived to come from several provisions of the RP-US Extradition Treaty and P.D. No. 1069 which allow provisional arrest and temporary detention. To be sure, private respondents plea for due process deserves serious consideration involving as it does his primordial right to liberty. His plea to due process, however, collides with important state interests which cannot also be ignored for they serve the interest of the greater majority. The clash of rights demands a delicate balancing of interests approach which is a "fundamental postulate of constitutional law." The approach requires that we "take conscious and detailed consideration of the interplay of interests observable in a given situation or type of situation." These interests usually consist in the exercise by an individual of his basic freedoms on the one hand, and the governments promotion of fundamental public interest or policy objectives on the other. In the case at bar, on one end of the balancing pole is the private respondents claim to due process predicated on Section 1, Article III of the Constitution, which provides that "No person shall be deprived of life, liberty, or property without due process of law . . ." Without a bubble of doubt, procedural due process of law lies at the foundation of a civilized society which accords paramount importance to justice and fairness. It has to be accorded the weight it deserves. Considering that in the case at bar, the extradition proceeding is only at its evaluation stage, the nature of the right being claimed by the private respondent is nebulous and the degree of prejudice he will allegedly suffer is weak, we accord greater weight to the interests espoused by the government thru the petitioner Secretary of Justice. In tilting the balance in favor of the interests of the State, the Court stresses that it is not ruling that the private respondent has no right to due process at all throughout the length and breadth of the extrajudicial proceedings. Procedural due process requires a determination of what process is due, when it is due, and the degree of what is due. Stated otherwise, a prior determination should be made as to whether procedural protections are at all due and when they are due, which in turn depends on the extent to which an individual will be "condemned to suffer grievous loss ." We have explained why an extraditee has no right to notice and hearing during the evaluation stage of the extradition process. As aforesaid, P.D. No. 1069 which implements the RP-US Extradition Treaty affords an extraditee sufficient opportunity to meet the evidence against him once the petition is filed in court. The time for the extraditee to know the basis of the request for his extradition is merely moved to the filing in court of the formal petition for extradition. The extraditee's right to know is momentarily withheld during the evaluation stage of the extradition process to accommodate the more compelling interest of the State to prevent escape of potential extraditees which can be precipitated by premature information of the basis of the request for his extradition. No less compelling at that stage of the

Compiled by: Thyrza Marbas/Percy Donalvo/Carrie Mae Bangayan

CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

enable the appellant to file an intelligent and exhaustive appellant's Brief Memorandum." (Norlyn Tantay) G.R. No. 142943 April 3, 2002 Spouses ANTONIO and LORNA QUISUMBING vs.MANILA ELECTRIC COMPANY (MERALCO) Under the law, the Manila Electric Company (Meralco) may immediately disconnect electric service on the ground of alleged meter tampering, but only if the discovery of the cause is personally witnessed and attested to by an officer of the law or by a duly authorized representative of the Energy Regulatory Board. Facts: Plaintiffs-appellees Spouses Antonio and Lorna Quisumbing are owners of a house and lot located at Quezon City, from Ms. Carmina Serapio Santos. On March 3, 1995 at around 9:00 a.m., defendant-appellant's inspectors headed by Emmanuel C. Orlino were assigned to conduct a routine-on-the-spot inspection of all single phase meters at Greenmeadows Avenue. House no. 94 of Block 8, Lot 19 Greenmeadows Avenue owned by plaintiffs-appellees was inspected after observing a standard operating procedure of asking permission from plaintiffs-appellees, through their secretary which was granted. The secretary witnessed the inspection. After the inspection, defendant-appellant's inspectors discovered that the terminal seal of the meter was missing; the meter cover seal was deformed; the meter dials of the meter was mis-aligned and there were scratches on the meter base plate. Defendant-appellant's inspectors relayed the matter to plaintiffs-appellees' secretary, who in turn relayed the same to plaintiff-appellee, Lorna Quisumbing, who was outraged of the result of the inspection and denied liability as to the tampering of the meter. Plaintiffs-appellees were advised by defendant-appellant's inspectors that they had to detach the meter and bring it to their laboratory for verification/confirmation of their findings. In the event the meter turned out to be tampered, defendant-appellant had to temporarily disconnect the electric services of plaintiffs-appellees. After an hour, defendant-appellant's head inspector, E. Orlina returned to the residence of plaintiffs-appellees and informed them that the meter had been tampered and unless they pay the amount of P178,875.01 representing the differential billing, their electric supply would be disconnected. Orlina informed plaintiffs-appellees that they were just following their standard operating procedure. However, on the same day at around 2:00 o'clock in the afternoon defendantappellant's officer through a two-way radio instructed its service inspector headed by Mr. Orlino to reconnect plaintiffs-appellees' electric service which the latter faithfully complied. On March 6, 1995, plaintiffs-appellees filed a complaint for damages with prayer for the issuance of a writ of preliminary mandatory injunction, despite the immediate reconnection, to order defendantappellant to furnish electricity to the plaintiffs-appellees alleging that defendant-appellant acted with wanton, capricious, malicious and malevolent manner in disconnecting their power supply which was done without due process, and without due regard for their rights, feelings, peace of mind, social and business reputation. The trial court held that Meralco (herein respondent) should have given the Quisumbing spouses (herein petitioners) ample opportunity to dispute the alleged meter tampering. The Court of Appeals overturned the trial court's ruling and dismissed the Complaint. Hence, this Petition. Issue: WON respondent observed the requisites of law when it disconnected the electrical supply of petitioners. Held: No. Petitioners contend that the immediate disconnection of electrical service was not validly effected because of respondent's noncompliance with the relevant provisions of RA 7832, the "AntiElectricity and Electric Transmission Lines/Materials Pilferage Act of 1994. We agree with petitioners. Section 4 of RA 7832 states: (a) The presence of any of the following circumstances shall constitute prima facie evidence of illegal use of electricity, as defined in this Act, by the person benefitted thereby, and shall be the basis for: (1) the immediate disconnection by the electric utility to such person after due notice, x x x xxx xxx xxx (viii) x x x Provided, however, That the discovery of any of the foregoing circumstances, in order to constitute prima facie evidence, must be personally witnessed and attested to by an officer of the law or a duly authorized

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representative of the Energy Regulatory Board (ERB)."9 (Italics supplied) Under the above provision, the prima facie presumption that will authorize immediate disconnection will arise only upon the satisfaction of certain requisites. One of these requisites is the personal witnessing and attestation by an officer of the law or by an authorized ERB representative when the discovery was made. A careful review of the evidence on record negates the appellate court's holding that "the actions of defendant-appellant's service inspectors were all in accord with the requirement of the law." Respondent's own witnesses provided the evidence on who were actually present when the inspection was made. These testimonies clearly show that at the time the alleged meter tampering was discovered, only the Meralco inspection team and petitioners' secretary were present. Plainly, there was no officer of the law or ERB representative at that time. Because of the absence of government representatives, the prima facie authority to disconnect, granted to Meralco by RA 7832, cannot apply. Neither can respondent find solace in the fact that petitioners' secretary was present at the time the inspection was made. The law clearly states that for the prima facie evidence to apply, the discovery "must be personally witnessed and attested to by an officer of the law or a duly authorized representative of the Energy Regulatory Board (ERB)."15 Had the law intended the presence of the owner or his/her representative to suffice, then it should have said so. Embedded in our jurisprudence is the rule that courts may not construe a statute that is free from doubt.16 Where the law is clear and unambiguous, it must be taken to mean exactly what it says, and courts have no choice but to see to it that the mandate is obeyed. Neither can we accept respondent's argument that when the alleged tampered meter was brought to Meralco's laboratory for testing, there was already an ERB representative present. The law says that before immediate disconnection may be allowed, the discovery of the illegal use of electricity must have been personally witnessed and attested to by an officer of the law or by an authorized ERB representative. In this case, the disconnection was effected immediately after the discovery of the alleged meter tampering, which was witnessed only by Meralco's employees. That the ERB representative was allegedly present when the meter was examined in the Meralco laboratory will not cure the defect. It is undisputed that after members of the Meralco team conducted their inspection and found alleged meter tampering, they immediately disconnected petitioners' electrical supply. Neither may respondent rely on its alleged contractual right to disconnect electrical service based on Exhibits "10"22 and "11," or on Decisions of the Board of Energy (now the Energy Regulatory Board). Petitioners' situation can fall under disconnection only "in case of or to prevent fraud upon the Company." However, this too has requisites before a disconnection may be made. An adjusted bill shall be prepared, and only upon failure to pay it may the company discontinue service. This is also true in regard to the provisions of Revised Order No. 1 of the former Public Service Commission, which requires a 48-hour written notice before a disconnection may be justified. In the instant case, these requisites were obviously not complied with. G.R. No. 111397 August 12, 2002 HON. ALFREDO LIM and RAFAELITO GARAYBLAS vs. THE COURT OF APPEALS, HON. WILFREDO REYES and BISTRO PIGALLE, INC. Facts: On December 7, 1992 Bistro filed before the trial court a petition for mandamus and prohibition, with prayer for temporary restraining order or writ of preliminary injunction, against Lim in his capacity as Mayor of the City of Manila. Bistro filed the case because policemen under Lims instructions inspected and investigated Bistros license as well as the work permits and health certificates of its staff. This caused the stoppage of work in Bistros night club and restaurant operations. Lim also refused to accept Bistros application for a business license, as well as the work permit applications of Bistros staff, for the year 1993. However, despite the trial courts order, Lim still issued a closure order on Bistros operations effective January 23, 1993, even sending policemen to carry out his closure order.

Compiled by: Thyrza Marbas/Percy Donalvo/Carrie Mae Bangayan

CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

Meanwhile, on February 17, 1993, Lim filed a motion to dissolve the injunctive order of January 20, 1993 and to dismiss the case. Lim insisted that the power of a mayor to inspect and investigate commercial establishments and their staff is implicit in the statutory power of the city mayor to issue, suspend or revoke business permits and licenses. This statutory power is expressly provided for in Section 11 (l), Article II of the Revised Charter of the City of Manila and in Section 455, paragraph 3 (iv) of the Local Government Code of 1991. The trial court denied Lims motion to dissolve the injunction and to dismiss the case. On March 10, 1993, Lim filed with the Court of Appeals a petition for certiorari, prohibition and mandamus against Bistro and Judge Wilfredo Reyes. Lim claimed that the trial judge committed grave abuse of discretion amounting to lack of jurisdiction in issuing the writ of prohibitory preliminary injunction. On March 25, 1993, the Court of Appeals rendered the assailed decision. In a resolution dated July 13, 1993, the Court of Appeals denied Lims motion for reconsideration. On July 1, 1993, Manila City Ordinance No. 778314 took effect. On the same day, Lim ordered the Western Police District Command to permanently close down the operations of Bistro, which order the police implemented at once. Hence, this petition. Issue: WON Lim, as mayor, has the power/authority to close down Bistros business or any establishment in Manila without notice and hearing (due process). Held: No. The authority of mayors to issue business licenses and permits is beyond question. The law expressly provides for such authority. However, the power to suspend or revoke these licenses and permits is expressly premised on the violation of the conditions of these permits and licenses. The laws specifically refer to the "violation of the condition(s)" on which the licenses and permits were issued. Similarly, the power to refuse to issue such licenses and permits is premised on non-compliance with the prerequisites for the issuance of such licenses and permits. The mayor must observe due process in exercising these powers, which means that the mayor must give the applicant or licensee notice and opportunity to be heard. True, the mayor has the power to inspect and investigate private commercial establishments for any violation of the conditions of their licenses and permits. However, the mayor has no power to order a police raid on these establishments in the guise of inspecting or investigating these commercial establishments. Lim acted beyond his authority when he directed policemen to raid the New Bangkok Club and the Exotic Garden Restaurant. Such act of Lim violated Ordinance No. 7716 which expressly prohibits police raids and inspections. Lim has no authority to close down Bistros business or any business establishment in Manila without due process of law. Lim cannot take refuge under the Revised Charter of the City of Manila and the Local Government Code. There is no provision in these laws expressly or impliedly granting the mayor authority to close down private commercial establishments without notice and hearing, and even if there is, such provision would be void. The due process clause of the Constitution requires that Lim should have given Bistro an opportunity to rebut the allegations that it violated the conditions of its licenses and permits. Lims zeal in his campaign against prostitution is commendable. The presumption is that he acted in good faith and was motivated by his concern for his constituents when he implemented his campaign against prostitution in the Ermita-Malate area. However, there is no excusing Lim for arbitrarily closing down, without due process of law, the business operations of Bistro. For this reason, the trial court properly restrained the acts of Lim. G.R. No. 164171 February 20, 2006 G.R. No. 164172 February 20, 2006 G.R. No. 168741 February 20, 2006 EXECUTIVE vs. SOUTHWING Facts: On December 12, 2002, President Gloria Macapagal-Arroyo, through Executive Secretary Alberto G. Romulo, issued EO 156, entitled "Providing for a comprehensive industrial policy and directions for the motor vehicle development program and its implementing guidelines. The issuance of EO 156 spawned three separate actions for declaratory relief before Branch 72 of the Regional Trial Court of

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Olongapo City, all seeking the declaration of the unconstitutionality of Article 2, Section 3.1 of said executive order. The cases were filed by herein respondent entities, who or whose members, are classified as Subic Bay Freeport Enterprises and engaged in the business of, among others, importing and/or trading used motor vehicles. Issue: WON EO 156 complied with the procedures and limitations imposed by law. Held: As in the enactment of laws, the general rule is that, the promulgation of administrative issuances requires previous notice and hearing, the only exception being where the legislature itself requires it and mandates that the regulation shall be based on certain facts as determined at an appropriate investigation.23 This exception pertains to the issuance of legislative rules as distinguished from interpretative rules which give no real consequence more than what the law itself has already prescribed; 24 and are designed merely to provide guidelines to the law which the administrative agency is in charge of enforcing.25 A legislative rule, on the other hand, is in the nature of subordinate legislation, crafted to implement a primary legislation. In Commissioner of Internal Revenue v. Court of Appeals, and Commissioner of Internal Revenue v. Michel J. Lhuillier Pawnshop, Inc., the Court enunciated the doctrine that when an administrative rule goes beyond merely providing for the means that can facilitate or render less cumbersome the implementation of the law and substantially increases the burden of those governed, it behooves the agency to accord at least to those directly affected a chance to be heard and, thereafter, to be duly informed, before the issuance is given the force and effect of law. In the instant case, EO 156 is obviously a legislative rule as it seeks to implement or execute primary legislative enactments intended to protect the domestic industry by imposing a ban on the importation of a specified product not previously subject to such prohibition. The due process requirements in the issuance thereof are embodied in Section 401 of the Tariff and Customs Code and Sections 5 and 9 of the SMA which essentially mandate the conduct of investigation and public hearings before the regulatory measure or importation ban may be issued. In the present case, respondents neither questioned before this Court nor with the courts below the procedure that paved the way for the issuance of EO 156. What they challenged in their petitions before the trial court was the absence of "substantive due process" in the issuance of the EO. Their main contention before the court a quo is that the importation ban is illogical and unfair because it unreasonably drives them out of business to the prejudice of the national economy. Considering the settled principle that in the absence of strong evidence to the contrary, acts of the other branches of the government are presumed to be valid, and there being no objection from the respondents as to the procedure in the promulgation of EO 156, the presumption is that said executive issuance duly complied with the procedures and limitations imposed by law. G.R. No. 127980 December 19, 2007 DE LA SALLE UNIVERSITY, INC. vs.THE COURT OF APPEALS Facts: Gleaned from the May 3, 1995 Decision of the DLSU-CSB Joint Discipline Board, two violent incidents on March 29, 1995 involving private respondents occurred. The mauling incidents were a result of a fraternity war. The victims, namely: petitioner James Yap and Dennis Pascual, Ericson Cano, and Michael Perez, are members of the "Domino Lux Fraternity," while the alleged assailants, private respondents Alvin Aguilar, James Paul Bungubung, Richard Reverente and Roberto Valdes, Jr. are members of "Tau Gamma Phi Fraternity," a rival fraternity. The next day, March 30, 1995, petitioner Yap lodged a complaint with the Discipline Board of DLSU charging private respondents with "direct assault." Similar complaints were also filed by Dennis Pascual and Ericson Cano against Alvin Lee and private respondents Valdes and Reverente. The Director of the DLSU Discipline Office sent separate notices to private respondents Aguilar, Bungubung and Valdes, Jr. and Reverente informing them of the complaints and requiring them to answer. Private respondents filed their respective answers. As it appeared that students from DLSU and CSB were involved in the mauling incidents, a joint DLSU-CSB Discipline Board was formed to investigate the incidents. Thus, petitioner Board Chairman Emmanuel Sales sent notices of hearing to private respondents on April 12, 1995.

Compiled by: Thyrza Marbas/Percy Donalvo/Carrie Mae Bangayan

CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

On May 3, 1995, the DLSU-CSB Joint Discipline Board issued a Resolution finding private respondents guilty. They were meted the supreme penalty of automatic expulsion, pursuant to CHED Order No. 4. Private respondents separately moved for reconsideration before the Office of the Senior Vice-President for Internal Operations of DLSU. The motions were all denied in a Letter-Resolution2 dated June 1, 1995. On June 5, 1995, private respondent Aguilar filed with the RTC, Manila, against petitioners a petition for certiorari and injunction under Rule 65 of the Rules of Court with prayer for temporary restraining order (TRO) and/or writ of preliminary injunction. The petition essentially sought to annul the May 3, 1995 Resolution of the DLSUCSB Joint Discipline Board and the June 1, 1995 Letter-Resolution of the Office of the Senior Vice-President for Internal Affairs. The following day, June 6, 1995, respondent Judge issued a TRO directing DLSU, its subordinates, agents, representatives and/or other persons acting for and in its behalf to refrain and desist from implementing Resolution dated May 3, 1995 and Letter-Resolution dated June 1, 1995 and to immediately desist from barring the enrollment of Aguilar for the second term of school year (SY) 1995. Despite the said order, private respondent Aguilar was refused enrollment by petitioner DLSU when he attempted to enroll on September 22, 1995 for the second term of SY 1995-1996. Thus, on September 25, 1995, Aguilar filed with respondent Judge an urgent motion to cite petitioners (respondents there) in contempt of court. Aguilar also prayed that petitioners be compelled to enroll him at DLSU in accordance with respondent Judge's Order dated September 20, 1995. On September 25, 1995, respondent Judge issued a writ of preliminary injunction. On October 16, 1995, petitioner DLSU filed with the CA a petition for certiorari (CA-G.R. SP No. 38719) with prayer for a TRO and/or writ of preliminary injunction to enjoin the enforcement of respondent Judge's September 20, 1995 Order and writ of preliminary injunction dated September 25, 1995. The CA granted petitioners' prayer for preliminary injunction. On May 14, 1996, the CHED issued its questioned Resolution No. 181-96, summarily disapproving the penalty of expulsion for all private respondents. As for Aguilar, he was to be reinstated, while other private respondents were to be excluded. Despite the directive of CHED, petitioner DLSU again prevented private respondent Aguilar from enrolling and/or attending his classes, prompting his lawyer to write several demand letters to petitioner DLSU. In view of the refusal of petitioner DLSU to enroll private respondent Aguilar, CHED wrote a letter dated June 26, 1996 addressed to petitioner Quebengco requesting that private respondent Aguilar be allowed to continue attending his classes pending the resolution of its motion for reconsideration of Resolution No. 181-96. However, petitioner Quebengco refused to do so, prompting CHED to promulgate an Order dated September 23, 1996. Notwithstanding the said directive, petitioner DLSU, through petitioner Quebengco, still refused to allow private respondent Aguilar to enroll. Thus, private respondent Aguilar's counsel wrote another demand letter to petitioner DLSU. On January 7, 1997, respondent Judge issued its questioned order granting private respondent Aguilar's urgent motion to reiterate preliminary injunction. Accordingly, private respondent Aguilar was allowed to conditionally enroll in petitioner DLSU, subject to the continued effectivity of the writ of preliminary injunction dated September 25, 1995 and to the outcome of Civil Case No. 95-74122. On February 17, 1997, petitioners filed the instant petition. Issue: WON DLSU is within its rights in expelling private respondents---were private respondents accorded due process of law? Held: Yes. Private due process of law. respondents were accorded

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In administrative cases, such as investigations of students found violating school discipline, "[t]here are withal minimum standards which must be met before to satisfy the demands of procedural due process and these are: that (1) the students must be informed in writing of the nature and cause of any accusation against them; (2) they shall have the right to answer the charges against them and 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. Where a party was afforded an opportunity to participate in the proceedings but failed to do so, he cannot complain of deprivation of due process. Notice and hearing is the bulwark of administrative due process, the right to which is among the primary rights that must be respected even in administrative proceedings. The essence of due process is simply an opportunity to be heard, or as applied to administrative proceedings, an opportunity to explain one's side or an opportunity to seek reconsideration of the action or ruling complained of. So long as the party is given the opportunity to advocate her cause or defend her interest in due course, it cannot be said that there was denial of due process. A formal trial-type hearing is not, at all times and in all instances, essential to due process it is enough that the parties are given a fair and reasonable opportunity to explain their respective sides of the controversy and to present supporting evidence on which a fair decision can be based. "To be heard" does not only mean presentation of testimonial evidence in court one may also be heard through pleadings and where the opportunity to be heard through pleadings is accorded, there is no denial of due process. Private respondents were duly informed in writing of the charges against them by the DLSU-CSB Joint Discipline Board through petitioner Sales. They were given the opportunity to answer the charges against them as they, in fact, submitted their respective answers. They were also informed of the evidence presented against them as they attended all the hearings before the Board. Moreover, private respondents were given the right to adduce evidence on their behalf and they did. Lastly, the Discipline Board considered all the pieces of evidence submitted to it by all the parties before rendering its resolution in Discipline Case No. 9495-3-25121. Private respondents cannot claim that they were denied due process when they were not allowed to cross-examine the witnesses against them. This argument was already rejected in Guzman v. National University where this Court held that "x x x the imposition of disciplinary sanctions requires observance of procedural due process. And it bears stressing that due process in disciplinary cases involving students does not entail proceedings and hearings similar to those prescribed for actions and proceedings in courts of justice. The proceedings in student discipline cases may be summary; and cross examination is not, x x x an essential part thereof." G.R. No. 167011 December 11, 2008 SPOUSES CARLOS S. ROMUALDEZ and ERLINDA R. ROMUALDEZ vs. COMMISSION ON ELECTIONS and DENNIS GARAY Facts: On 12 July 2000, private respondent Dennis Garay, along with Angelino Apostol filed a Complaint-Affidavit with the COMELEC thru the Office of the Election Officer in Burauen, Leyte, charging petitioners with violation of Section 261(y)(2) and Section 261(y)(5) of the Omnibus Election Code, similarly referred to as Batas Pambansa Blg. 881; and Section 12 of Republic Act No. 8189. The Complaint-Affidavit contained a prayer that a preliminary investigation be conducted by the COMELEC, and if the evidence so warrants, the corresponding Information against petitioners be filed before the Regional Trial Court (RTC) for the prosecution of the same. On 28 November 2003, Atty. Maria Norina S. Tangaro-Casingal, COMELEC Investigating Officer, issued a Resolution, recommending to the COMELEC Law Department (Investigation and Prosecution Division), the filing of the appropriate Information against petitioners. Petitioners filed a Motion for Reconsideration thereon. Acting on the Motion, the COMELEC found no cogent reason to disturb the assailed En Banc Resolution of 11 June 2004. On 12 January 2006, Alioden D. Dalaig, Director IV, Law Department of the COMELEC filed with the RTC, Burauen, Leyte, separate Informations against petitioner Carlos S. Romualdez for violation of Section 10(g), in relation to Section 45(j) of Republic Act No. 8189, and against petitioner Erlinda R. Romualdez for violation of Section

The Due Process Clause in Article III, Section 1 of the Constitution embodies a system of rights based on moral principles so deeply imbedded in the traditions and feelings of our people as to be deemed fundamental to a civilized society as conceived by our entire history. The constitutional behest that no person shall be deprived of life, liberty or property without due process of law is solemn and inflexible.

Compiled by: Thyrza Marbas/Percy Donalvo/Carrie Mae Bangayan

CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

10(g), in relation to Section 45(j) of Republic Act No. 8189, subsequently docketed as Crim. Case No. BN-06-03-4185 and Crim. Case No. BN-06-03-4183, respectively. Moreover, separate Informations for violation of Section 10(j), in relation to Section 45(j) of Republic Act No. 8189 were filed against petitioners. Petitioners contend that the election offenses for which they are charged by private respondent are entirely different from those which they stand to be accused of before the RTC by the COMELEC. According to petitioners, private respondents complaint charged them for allegedly violating, to wit: 1) Section 261(y)(2) and Section 261(y) (5) of the Omnibus Election Code, and 2) Section 12 of the Voters Registration Act; however, the COMELEC En Banc directed in the assailed Resolutions, that they be charged for violations of Section 10(g) and (j), in relation to Section 45(j) of the Voters Registration Act. Essentially, petitioners are of the view that they were not accorded due process of law. Specifically, their right to refute or submit documentary evidence against the new charges which COMELEC ordered to be filed against them. Moreover, petitioners insist that Section 45(j) of the Voters Registration Act is vague as it does not refer to a definite provision of the law, the violation of which would constitute an election offense; hence, it runs contrary to Section 14(1) and Section 14(2), Article III of the 1987 Constitution. Issue: WON petitioners were not accorded due process of law. Held: Petitioners cannot be said to have been denied due process on the claim that the election offenses charged against them by private respondent are entirely different from those for which they stand to be accused of before the RTC, as charged by the COMELEC. In the first place, there appears to be no incongruity between the charges as contained in the Complaint-Affidavit and the Informations filed before the RTC, notwithstanding the denomination by private respondent of the alleged violations to be covered by Section 261(y)(2) and Section 261(y)(5) of the Omnibus Election Code and Section 12 of Republic Act No. 8189. Evidently, the Informations directed to be filed by the COMELEC against petitioners, and which were, in fact, filed with the RTC, were based on the same set of facts as originally alleged in the private respondents Complaint-Affidavit. Petitioners buttress their claim of lack of due process by relying on the case of Lacson v. Executive Secretary. Citing Lacson, petitioners argue that the real nature of the criminal charge is determined by the actual recital of facts in the Complaint or Information; and that the object of such written accusations was to furnish the accused with such a description of the charge against him, as will enable him to make his defense. Let it be said that, in Lacson, this court resolved the issue of whether under the allegations in the subject Informations therein, it is the Sandiganbayan or the Regional Trial Court which has jurisdiction over the multiple murder case against therein petitioner and intervenors. In Lacson, we underscored the elementary rule that the jurisdiction of a court is determined by the allegations in the Complaint or Information, and not by the evidence presented by the parties at the trial. Indeed, in Lacson, we articulated that the real nature of the criminal charge is determined not from the caption or preamble of the Information nor from the specification of the provision of law alleged to have been violated, they being conclusions of law, but by the actual recital of facts in the Complaint or Information. Petitioners reliance on Lacson, however, does not support their claim of lack of due process because, as we have said, the charges contained in private respondents Complaint-Affidavit and the charges as directed by the COMELEC to be filed are based on the same set of facts. In fact, the nature of the criminal charges in private respondents Complaint-Affidavit and that of the charges contained in the Informations filed with the RTC, pursuant to the COMELEC Resolution En Banc are the same, such that, petitioners cannot claim that they were not able to refute or submit documentary evidence against the charges that the COMELEC filed with the RTC. Petitioners were afforded due process because they were granted the opportunity to refute the allegations in private respondents Complaint-Affidavit. On 2 April 2001, in opposition to the Complaint-Affidavit, petitioners filed a Joint Counter-Affidavit with Motion to Dismiss with the Law Department of the COMELEC. They similarly filed a Memorandum before the said body. Finding that due process was not dispensed with under the circumstances in the case at bar, we agree with the stance of the Office of the Solicitor General that petitioners were reasonably apprised of the nature and description of the charges against them. It likewise bears stressing that preliminary investigations were conducted whereby petitioners were informed of the complaint and of the evidence submitted against them. They were given the opportunity to adduce controverting evidence for their defense. In all these stages, petitioners actively participated. The instant case calls to our minds Orquinaza v. People, wherein the concerned police officer therein designated the offense charged as sexual harassment; but, the prosecutor found that there was no

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transgression of the anti-sexual harassment law, and instead, filed an Information charging therein petitioner with acts of lasciviousness. On a claim that there was deprivation of due process, therein petitioner argued that the Information for acts of lasciviousness was void as the preliminary investigation conducted was for sexual harassment. The court held that the designation by the police officer of the offense is not conclusive as it is within the competence of the prosecutor to assess the evidence submitted and determine therefrom the appropriate offense to be charged. Accordingly, the court pronounced that the complaint contained all the allegations to support the charge of acts of lasciviousness under the Revised Penal Code; hence, the conduct of another preliminary investigation for the offense of acts of lasciviousness would be a futile exercise because the complainant would only be presenting the same facts and evidence which have already been studied by the prosecutor. The court frowns upon such superfluity which only serves to delay the prosecution and disposition of the criminal complaint.

D. DUE PROCESS AND POLICE POWER

G.R. No. 89572 December 21, 1989 DEPARTMENT OF EDUCATION, CULTURE AND SPORTS (DECS) and DIRECTOR OF CENTER FOR EDUCATIONAL MEASUREMENT, petitioners, vs. ROBERTO REY C. SAN DIEGO and JUDGE TERESITA DIZONCAPULONG, in her capacity as Presiding Judge of the Regional Trial Court of Valenzuela, Metro Manila, Branch 172, respondents. The issue before us is mediocrity. The question is whether a person who has thrice failed the National Medical Admission Test (NMAT) is entitled to take it again. Facts: The private respondent is a graduate of the University of the East with a degree of Bachelor of Science in Zoology. The petitioner claims that he took the NMAT three times and flunked it as many times. When he applied to take it again, the petitioner rejected his application on the basis of the aforesaid rule. He then went to the Regional Trial Court of Valenzuela, Metro Manila, to compel his admission to the test. In his original petition for mandamus, he first invoked his constitutional rights to academic freedom and quality education. By agreement of the parties, the private respondent was allowed to take the NMAT scheduled on April 16, 1989, subject to the outcome of his petition. In an amended petition filed with leave of court, he squarely challenged the constitutionality of MECS Order No. 12, Series of 1972, containing the above-cited rule. The additional grounds raised were due process and equal protection. After hearing, the respondent judge rendered a decision on July 4, 1989, declaring the challenged order invalid and granting the petition. Judge Teresita Dizon-Capulong held that the petitioner had been deprived of his right to pursue a medical education through an arbitrary exercise of the police power. Issue: WON petitioner had been deprived of his right to pursue a medical education through an arbitrary exercise of the police power. Held: We cannot sustain the respondent judge. Her decision must be reversed. In Tablarin v. Gutierrez, this Court upheld the constitutionality of the NMAT as a measure intended to limit the admission to medical schools only to those who have initially proved their competence and preparation for a medical education. We see no reason why the rationale in the Tablarin case cannot apply to the case at bar. The issue raised in both cases is the academic preparation of the applicant. This may be gauged at least initially by the admission test and, indeed with more reliability, by the three-flunk rule. The latter cannot be regarded any less valid than the former in the regulation of the medical profession. There is no need to redefine here the police power of the State. Suffice it to repeat that the power is validly exercised if (a) the interests of the public generally, as distinguished from those of a particular class, require the interference of the State, and (b) the means employed are reasonably necessary to the attainment of the object sought to be accomplished and not unduly oppressive upon individuals.

Compiled by: Thyrza Marbas/Percy Donalvo/Carrie Mae Bangayan

CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

In other words, the proper exercise of the police power requires the concurrence of a lawful subject and a lawful method. The subject of the challenged regulation is certainly within the ambit of the police power. It is the right and indeed the responsibility of the State to insure that the medical profession is not infiltrated by incompetents to whom patients may unwarily entrust their lives and health. The method employed by the challenged regulation is not irrelevant to the purpose of the law nor is it arbitrary or oppressive. The three-flunk rule is intended to insulate the medical schools and ultimately the medical profession from the intrusion of those not qualified to be doctors. While every person is entitled to aspire to be a doctor, he does not have a constitutional right to be a doctor. This is true of any other calling in which the public interest is involved; and the closer the link, the longer the bridge to one's ambition. The State has the responsibility to harness its human resources and to see to it that they are not dissipated or, no less worse, not used at all. These resources must be applied in a manner that will best promote the common good while also giving the individual a sense of satisfaction. A person cannot insist on being a physician if he will be a menace to his patients. If one who wants to be a lawyer may prove better as a plumber, he should be so advised and adviced. Of course, he may not be forced to be a plumber, but on the other hand he may not force his entry into the bar. By the same token, a student who has demonstrated promise as a pianist cannot be shunted aside to take a course in nursing, however appropriate this career may be for others. The right to quality education invoked by the private respondent is not absolute. The Constitution also provides that "every citizen has the right to choose a profession or course of study, subject to fair, reasonable and equitable admission and academic requirements. The private respondent must yield to the challenged rule and give way to those better prepared. Where even those who have qualified may still not be accommodated in our already crowded medical schools, there is all the more reason to bar those who, like him, have been tested and found wanting. The contention that the challenged rule violates the equal protection clause is not well-taken. A law does not have to operate with equal force on all persons or things to be conformable to Article III, Section 1 of the Constitution. There can be no question that a substantial distinction exists between medical students and other students who are not subjected to the NMAT and the three-flunk rule. The medical profession directly affects the very lives of the people, unlike other careers which, for this reason, do not require more vigilant regulation. The accountant, for example, while belonging to an equally respectable profession, does not hold the same delicate responsibility as that of the physician and so need not be similarly treated. There would be unequal protection if some applicants who have passed the tests are admitted and others who have also qualified are denied entrance. In other words, what the equal protection requires is equality among equals. The Court feels that it is not enough to simply invoke the right to quality education as a guarantee of the Constitution: one must show that he is entitled to it because of his preparation and promise. The private respondent has failed the NMAT five times. While his persistence is noteworthy, to say the least, it is certainly misplaced, like a hopeless love. G.R. No. 120095 August 5, 1996 JMM PROMOTION AND MANAGEMENT, INC., and KARY INTERNATIONAL, INC., vs. HON. COURT OF APPEALS Facts: Following the much-publicized death of Maricris Sioson in 1991, former President Corazon C. Aquino ordered a total ban against the deployment of performing artists to Japan and other foreign destinations. The ban was, however, rescinded after leaders of the overseas employment industry promised to extend full support for a program aimed at removing kinks in the system of deployment. In its place, the government, through the Secretary of Labor and Employment, subsequently issued Department Order No. 28, creating the Entertainment Industry Advisory Council (EIAC), which was tasked with issuing guidelines on the training, testing certification and deployment of performing artists abroad. Pursuant to the EIAC's recommendations, the Secretary of Labor, on January 6, 1994, issued Department Order No. 3 establishing various

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procedures and requirements for screening performing artists under a new system of training, testing, certification and deployment of the former. Performing artists successfully hurdling the test, training and certification requirement were to be issued an Artist's Record Book (ARB), a necessary prerequisite to processing of any contract of employment by the POEA. Upon request of the industry, implementation of the process, originally scheduled for April 1, 1994, was moved to October 1, 1994. Thereafter, the Department of Labor, following the EIAC's recommendation, issued a series of orders fine-tuning and implementing the new system. In Civil Case No. 95-72750, the Federation of Entertainment Talent Managers of the Philippines (FETMOP), on January 27, 1995 filed a class suit assailing these department orders, principally contending that said orders 1) violated the constitutional right to travel; 2) abridged existing contracts for employment; and 3) deprived individual artists of their licenses without due process of law. FETMOP, likewise, averred that the issuance of the Artist Record Book (ARB) was discriminatory and illegal and "in gross violation of the constitutional right... to life liberty and property." Said Federation consequently prayed for the issuance of a writ of preliminary injunction against the aforestated orders. JMM Promotion and Management, Inc. Kary International, Inc., herein petitioners, filed a Motion for Intervention in said civil case, which was granted by the trial court. The trial court issued an Order denying petitioners' prayed for a writ of preliminary injunction and dismissed the complaint. On appeal from the trial court's Order, respondent court, in CA G.R. SP No. 36713 dismissed the same. Issue: WON the said orders issued by the Dept. of Labor, were violative of petitioners constl rights. Held: No. Describing the nature and scope of the police power, Justice Malcolm, in the early case of Rubi v. Provincial Board of Mindoro 4 wrote:
"The police power of the State," one court has said... is a power coextensive with self-protection, and is not inaptly termed "the law of overruling necessity." It may be said to be that inherent and plenary power in the state which enables it to prohibit all things hurtful to the comfort, safety and welfare of society." Carried onward by the current of legislature, the judiciary rarely attempts to dam the onrushing power of legislative discretion, provided the purposes of the law do not go beyond the great principles that mean security for the public welfare or do not arbitrarily interfere with the right of the individual.

Thus, police power concerns government enactments which precisely interfere with personal liberty or property in order to promote the general welfare or the common good. As the assailed Department Order enjoys a presumed validity, it follows that the burden rests upon petitioners to demonstrate that the said order, particularly, its ARB requirement, does not enhance the public welfare or was exercised arbitrarily or unreasonably. A thorough review of the facts and circumstances leading to the issuance of the assailed orders compels us to rule that the Artist Record Book requirement and the questioned Department Order related to its issuance were issued by the Secretary of Labor pursuant to a valid exercise of the police power. Of the hundreds of thousands of workers who left the country for greener pastures in the last few years, women composed slightly close to half of those deployed, constituting 47% between 19871991, exceeding this proportion (58%) by the end of 1991, 6 the year former President Aquino instituted the ban on deployment of performing artists to Japan and other countries as a result of the gruesome death of Filipino entertainer Maricris Sioson. Pursuant to the alarming number of reports that a significant number of Filipina performing artists ended up as prostitutes abroad (many of whom were beaten, drugged and forced into prostitution), and following the deaths of number of these women, the government began instituting measures aimed at deploying only those individuals who met set standards which would qualify them as legitimate performing artists. In spite of these measures, however, a number of our countrymen have nonetheless fallen victim to unscrupulous recruiters, ending up as virtual slaves controlled by foreign crime syndicates and forced into jobs other than those indicated in their employment contracts. Worse, some of our women have been forced into prostitution. In any event, apart from the State's police power, the Constitution itself mandates government to extend the fullest protection to our overseas workers. The basic constitutional statement on labor, embodied in Section 18 of Article II of the Constitution.

Compiled by: Thyrza Marbas/Percy Donalvo/Carrie Mae Bangayan

CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

As to petitioners' assertion that the police power cannot, nevertheless, abridge the right of our performing workers to return to work abroad after having earlier qualified under the old process, because, having previously been accredited, their accreditation became a "property right," protected by the due process clause, we find this contention untenable. A profession, trade of calling is a property right within the meaning of our constitutional guarantees. One cannot be deprived of the right to work and right to make a living because these rights are property rights, the arbitrary and unwarranted deprivation of which normally constitutes an actionable wrong. Nevertheless, no right is absolute, and the proper regulation of a profession, calling, business or trade has always been upheld as a legitimate subject of a valid exercise of the police power by the state particularly when their conduct affects either the execution of legitimate governmental functions, the preservation of the State, the public health and welfare and public morals. According to the maxim, sic utere tuo ut alienum non laedas, it must of course be within the legitimate range of legislative action to define the mode and manner in which every one may so use of his own property so as not to pose injury to himself or others. In any case, where the liberty curtailed affects at most the rights of property, the permissible scope of regulatory measures is certainly much wider. To pretend that a licensing or accreditation requirement violates the due process clause is to ignore the settled practice, under the mantle of the police power, of regulating entry to the practice of various trades or professions. Professionals leaving for abroad are required to pass rigid written and practical exams before they are deemed fit to practice their trade. Seamen are required to take tests determining their seamanship. Locally, the Professional Regulation Commission has began to require previously licensed doctors and other professionals to furnish documentary proof that they has either re-trained or had undertaken continuing education courses as a requirement for renewal of their licenses. It is not claimed that these requirements pose an unwarranted deprivation of a property right under the due process clause. So long as professionals and other workers meet reasonable regulatory standards no such deprivation exists. G.R. No. 162777 August 31, 2004 FRANCISCO I. CHAVEZ vs. COMMISSION ON ELECTIONS Facts: Petitioner Chavez, on various dates, entered into formal agreements with certain establishments to endorse their products. On August 18, 2003, he authorized a certain Andrew So to use his name and image for 96 North, a clothing company. Petitioner also signed Endorsement Agreements with Konka International Plastics Manufacturing Corporation and another corporation involved in the amusement and video games business, G-Box. These last two agreements were entered into on October 14, 2003 and November 10, 2003, respectively. Pursuant to these agreements, three billboards were set up along the Balintawak Interchange of the North Expressway. One billboard showed petitioner promoting the plastic products of Konka International Plastics Manufacturing Corporation, and the other two showed petitioner endorsing the clothes of 96 North. One more billboard was set up along Roxas Boulevard showing petitioner promoting the game and amusement parlors of G-Box. On December 30, 2003, however, petitioner filed his certificate of candidacy for the position of Senator under Alyansa ng Pag-asa, a tripartite alliance of three political parties: PROMDI, REPORMA, and Aksyon Demokratiko. On January 6, 2004, respondent COMELEC issued Resolution No. 6520, which contained Section 32, the provision assailed herein. On January 21, 2004, petitioner was directed to comply with the said provision by the COMELEC's Law Department. He replied, on January 29, 2004, by requesting the COMELEC that he be informed as to how he may have violated the assailed provision. He sent another letter dated February 23, 2004, this time asking the COMELEC that he be exempted from the application of Section 32, considering that the billboards adverted to are mere product endorsements and cannot be construed as paraphernalia for premature campaigning under the rules. The COMELEC answered petitioner's request by issuing another letter, dated February 27, 2004, wherein it ordered him to remove or cause the removal of the billboards, or to cover them from public view pending the approval of his request. Feeling aggrieved, petitioner Chavez asks this Court that the COMELEC be enjoined from enforcing the assailed provision. He urges this Court to declare the assailed provision unconstitutional as the same is allegedly (1) a gross violation of the non-impairment clause; (2) an invalid exercise of police power; (3) in the nature of an

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ex-post facto law; (4) contrary to the Fair Elections Act; and (5) invalid due to overbreadth. Issue: WON Section 32 of COMELEC Resolution No. 6520 an invalid exercise of police power. Held: No. A close examination of the assailed provision reveals that its primary objectives are to prohibit premature campaigning and to level the playing field for candidates of public office, to equalize the situation between popular or rich candidates, on one hand, and lesser-known or poorer candidates, on the other, by preventing the former from enjoying undue advantage in exposure and publicity on account of their resources and popularity. The latter is a valid reason for the exercise of police power as held in National Press Club v. COMELEC, wherein the petitioners questioned the constitutionality of Section 11(b) of Republic Act No. 6646, which prohibited the sale or donation of print space and air time "for campaigning or other political purposes," except to the COMELEC. The obvious intention of this provision is to equalize, as far as practicable, the situations of rich and poor candidates by preventing the former from enjoying the undue advantage offered by huge campaign "war chests." This Court ruled therein that this objective is of special importance and urgency in a country which, like ours, is characterized by extreme disparity in income distribution between the economic elite and the rest of society, and by the prevalence of poverty, with so many of our population falling below the poverty line. It is true that when petitioner entered into the contracts or agreements to endorse certain products, he acted as a private individual and had all the right to lend his name and image to these products. However, when he filed his certificate of candidacy for Senator, the billboards featuring his name and image assumed partisan political character because the same indirectly promoted his candidacy. Therefore, the COMELEC was acting well within its scope of powers when it required petitioner to discontinue the display of the subject billboards. If the subject billboards were to be allowed, candidates for public office whose name and image are used to advertise commercial products would have more opportunity to make themselves known to the electorate, to the disadvantage of other candidates who do not have the same chance of lending their faces and names to endorse popular commercial products as image models. Similarly, an individual intending to run for public office within the next few months, could pay private corporations to use him as their image model with the intention of familiarizing the public with his name and image even before the start of the campaign period. This, without a doubt, would be a circumvention of the rule against premature campaigning. (Charmee Abad) BELTRAN V SECRETARY (2005) Facts: The National Blood Services Act provides for the phase out of commercial blood banks Issue: Whether or not it is a valid exercise of police power? Ruling: Yes. The National Blood Services Act was enacted in the exercise of the States police power in order to promote and preserve public health and safety. It is for the protection of public health by ensuring an adequate supply of safe blood in the country through voluntary blood donation. Attaining this objective requires the interference of the State given the disturbing condition of the Philippine blood banking system. Police power of the state is validly exercised if (a) the interest of the public generally, as distinguished from those of a particular class, requires the interference of the State; and, (b) the means employed are reasonably necessary to the attainment of the objective sought to be accomplished and not unduly oppressive upon individuals In serving the interest of the public, and to give meaning to the purpose of the law, the Legislature deemed it necessary to phase out commercial blood banks. This action may seriously affect the owners and operators, as well as the employees, of commercial blood banks but their interests must give way to serve a higher end for the interest of the public. CITY OF MANILA VS. LAGUIO (2005) Facts: The City Council may prohibited through an ordinance the operation of sauna parlors, massage parlors, karaoke bars, night clubs, day clubs, super clubs, discotheques, cabarets, dance halls, motels and inns in Ermita-Malate.

Compiled by: Thyrza Marbas/Percy Donalvo/Carrie Mae Bangayan

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

Issue: Whether or not the prohibition is a valid exercise of police power? Ruling: NO. The enumerated establishments are lawful pursuits which are not per se offensive to the moral welfare of the community. To successfully invoke the exercise of police power as the rationale for the enactment of the Ordinance, and to free it from the imputation of constitutional infirmity, not only must it appear that the interests of the public generally, as distinguished from those of a particular class, require an interference with private rights, but the means adopted must be reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals. It must be evident that no other alternative for the accomplishment of the purpose less intrusive of private rights can work. A reasonable relation must exist between the purposes of the police measure and the means employed for its accomplishment, for even under the guise of protecting the public interest, personal rights and those pertaining to private property will not be permitted to be arbitrarily invaded. Lacking a concurrence of these two requisites, the police measure shall be struck down as an arbitrary intrusion into private rights a violation of the due process clause. It is readily apparent that the means employed by the Ordinance for the achievement of its purposes, the governmental interference itself, infringes on the constitutional guarantees of a person's fundamental right to liberty and property. CARLOS SUPERDRUG V DSWD (2007) Facts: In relation to RA 9257 or otherwise known as the Expanded Senior Citizens Act of 2003, the DOH issued an Order providing that the twenty percent discount shall not be limited to the purchase of unbranded generic medicines only, but shall extend to both prescription and non-prescription medicines whether branded or generic. Thus, it stated that [t]he grant of twenty percent (20%) discount shall be provided in the purchase of medicines from all establishments dispensing medicines for the exclusive use of the senior citizens. The petitioners to insist that the grant of the senior citizen discount is unduly oppressive to their business, because petitioners have not taken time to calculate correctly and come up with a financial report, so that they have not been able to show properly whether or not the tax deduction scheme really works greatly to their disadvantage Issue: Whether or not the law is confiscatory Ruling: NO. The law is a legitimate exercise of police power which, similar to the power of eminent domain, has general welfare for its object. The Senior Citizens Act was enacted primarily to maximize the contribution of senior citizens to nation-building, and to grant benefits and privileges to them for their improvement and well-being as the State considers them an integral part of our society. The right to property has a social dimension. The right to property can be relinquished upon the command of the State for the promotion of public good When the conditions so demand as determined by the legislature, property rights must bow to the primacy of police power because property rights, though sheltered by due process, must yield to general welfare.

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domain is a genuine necessity and that necessity must be of a public character. Moreover, the ascertainment of the necessity must precede or accompany and not follow, the taking of the land. This "necessity within the rule that the particular property to be expropriated must be necessary does not mean an absolute but only a reasonable or practical necessity, such as would combine the greatest benefit to the public with the least inconvenience and expense to the condemning party and the property owner consistent with such benefit." Applying this standard, we hold that respondent City of Pasig has failed to establish that there is a genuine necessity to expropriate petitioners property. Our scrutiny of the records shows that the Certification14 issued by the Caniogan Barangay Council dated November 20, 1994, the basis for the passage of Ordinance No. 42 s. 1993 authorizing the expropriation, indicates that the intended beneficiary is the Melendres Compound Homeowners Association, a private, non-profit organization, not the residents of Caniogan. It can be gleaned that the members of the said Association are desirous of having their own private playground and recreational facility. Petitioners lot is the nearest vacant space available. The purpose is, therefore, not clearly and categorically public. The necessity has not been shown, especially considering that there exists an alternative facility for sports development and community recreation in the area, which is the Rainforest Park, available to all residents of Pasig City, including those of Caniogan. Estate v City of Manila (2004) Facts: petitioners acquired a favorable judgment of eviction against respondents.The said judgments became final and executory. Consequently, writs of execution were issued. During the pendency of the complaints for unlawful detainer, respondent City filed a case for the expropriation of the same properties involved in the ejectment cases. From thereon, numerous motions to intervene and motions for injunction were filed in the expropriation case by respondents. The trial court allowed respondent City to take possession of the property; it denied the motions for intervention and injunction, and, after allowing respondent City to oppose the motion to dismiss, dismissed the complaint for expropriation. On appeal, the Court of Appeals reversed the trial court and found that respondent City properly exercised its right to expropriate the subject properties. Petitioners appealed the CA decision to this Court. Thereafter, on motion of respondent occupants, the Court of Appeals issued protective orders that required the parties to maintain the status quo (prohibiting any ejectment) pending this Courts resolution of the appeal. Issue: Whether or not the taking is lawful Ruling: NO. herein respondent City failed to prove strict compliance with the requirements of Sections 9 and 10 of RA 7279. Respondent City neither alleged in its complaint nor proved during the proceedings before the trial court that it complied with said requirements. This is a clear violation of the right to due process of the petitioners. Whether respondent City deprived petitioners of their property without due process of law depends on whether the City complied with the legal requirements for expropriation. Before respondent City can exercise its power of eminent domain, the same must be sanctioned and must not violate any law. Being a mere creation of the legislature, a local government unit can only exercise powers granted to it by the legislature. Such is the nature of the constitutional power of control of Congress over local government units, the latter being mere creations of the former. When it expropriated the subject properties, respondent City relied on its powers granted by Section 19 of the Local Government Code of 1991 and RA 409 (The Revised Charter of the City of Manila). The latter specifically gives respondent City the power to expropriate private property in the pursuit of its urban land reform and housing program. Respondent City, however, is also mandated to follow the conditions and standards prescribed by RA 7279 (the Urban Development and Housing Act of 1992), the law governing the expropriation of property for urban land reform and housing. Sections 9 and 10 of RA 7279 specifically provide that: Sec. 9. Priorities in the acquisition of Land Lands for socialized housing shall be acquired in the following order: (a) Those owned by the Government or any of its subdivisions, instrumentalities, or agencies, including government-owned or controlled corporations and their subsidiaries; (b) Alienable lands of the public domain; (c) Unregistered or abandoned and idle lands; (d) Those within the declared Areas of Priority Development, Zonal Improvement sites, and Slum

E.

DUE PROCESS AND EMINENT DOMAIN

MASIKIP VS. CITY OF PASIG (2007)

Facts: The State expropriated the private property of petitionerfor the benefit of a small community which seeks to have its own sports and recreational facility. This has been contested because there is already such a recreational facility only a short distance away, Issue: Whether the taking is valid Ruling: NO, such taking cannot be considered to be for public use. Its expropriation is not valid. In this case, the Court defines what constitutes a genuine necessity for public use. The right to take private property for public purposes necessarily originates from "the necessity" and the taking must be limited to such necessity. The very foundation of the right to exercise eminent

Compiled by: Thyrza Marbas/Percy Donalvo/Carrie Mae Bangayan

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

Improvement and Resettlement Program sites which have not yet been acquired; (e) Bagong Lipunan Improvement sites and Services or BLISS sites which have not yet been acquired; and (f) Privately-owned lands. Sec. 10. Modes of Land Acquisition. The modes of acquiring lands for purposes of this Act shall include, among others, community mortgage, land swapping, land assembly or consolidation, land banking, donation to the Government, joint venture agreement, negotiated purchase, and expropriation: Provided, however, That expropriation shall be resorted to only when other modes of acquisition have been exhausted: Provided further, That where expropriation is resorted to, parcels of land owned by small property owners shall be exempted for purposes of this Act: Provided, finally, that abandoned property, as herein defined, shall be reverted and escheated to the State in a proceeding analogous to the procedure laid down in Rule 91 of the Rules of Court. [italics supplied] Private lands rank last in the order of priority for purposes of socialized housing. In the same vein, expropriation proceedings are to be resorted to only after the other modes of acquisition have been exhausted. Compliance with these conditions is mandatory because these are the only safeguards of oftentimes helpless owners of private property against violation of due process when their property is forcibly taken from them for public use. SINDALAN V CA (2007) Facts: Petitioner sought to convert a portion of respondents land into Barangay Sindalans feeder road Respondents alleged that the expropriation of their property was for private use, that is, for the benefit of the homeowners of Davsan II Subdivision. They contended that petitioner deliberately omitted the name of Davsan II Subdivision and, instead, stated that the expropriation was for the benefit of the residents of Sitio Paraiso in order to conceal the fact that the access road being proposed to be built across the respondents land was to serve a privately owned subdivision and those who would purchase the lots of said subdivision. They also pointed out that under Presidential Decree No. (PD) 957, it is the subdivision owner who is obliged to provide a feeder road to the subdivision residents. Issue: Whether or not the taking was for public use Ruling: NO .. It is settled that the public nature of the prospective exercise of expropriation cannot depend on the "numerical count of those to be served or the smallness or largeness of the community to be benefited."15 The number of people is not determinative of whether or not it constitutes public use, provided the use is exercisable in common and is not limited to particular individuals.16 Thus, the first essential requirement for a valid exercise of eminent domain is for the expropriator to prove that the expropriation is for a public use. The exercise of the power of eminent domain is constrained by two constitutional provisions: (1) that private property shall not be taken for public use without just compensation under Article III (Bill of Rights), Section 9 and (2) that no person shall be deprived of his/her life, liberty, or property without due process of law under Art. III, Sec. 1. The intended feeder road sought to serve the residents of the subdivision only. It has not been shown that the other residents of Barangay Sindalan, San Fernando, Pampanga will be benefited by the contemplated road to be constructed on the lot of respondents spouses Jose Magtoto III and Patricia Sindayan. While the number of people who use or can use the property is not determinative of whether or not it constitutes public use or purpose, the factual milieu of the case reveals that the intended use of respondents lot is confined solely to the Davsan II Subdivision residents and is not exercisable in common. Worse, the expropriation will actually benefit the subdivisions owner who will be able to circumvent his commitment to provide road access to the subdivision in conjunction with his development permit and license to sell from the Housing and Land Use Regulatory Board, and also be relieved of spending his own funds for a right-of-way. In this factual setting, the Davsan II Subdivision homeowners are able to go to the barrio road by passing through the lot of a certain Torres family. Thus, the inescapable conclusion is that the expropriation of respondents lot is for the actual benefit of the Davsan II Subdivision owner, with incidental benefit to the subdivision homeowners. Considering that the residents who need a feeder road are all subdivision lot owners, it is the obligation of the Davsan II Subdivision owner to acquire a right-of-way for them. However, the failure of the subdivision owner to provide an access road does not shift the burden to petitioner. To deprive respondents of their property instead of

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compelling the subdivision owner to comply with his obligation under the law is an abuse of the power of eminent domain and is patently illegal. Without doubt, expropriation cannot be justified on the basis of an unlawful purpose. There is no precise meaning of "public use" and the term is susceptible of myriad meanings depending on diverse situations. The limited meaning attached to "public use" is "use by the public" or "public employment," that "a duty must devolve on the person or corporation holding property appropriated by right of eminent domain to furnish the public with the use intended, and that there must be a right on the part of the public, or some portion of it, or some public or quasi-public agency on behalf of the public, to use the property after it is condemned." The more generally accepted view sees "public use" as "public advantage, convenience, or benefit, and that anything which tends to enlarge the resources, increase the industrial energies, and promote the productive power of any considerable number of the inhabitants of a section of the state, or which leads to the growth of towns and the creation of new resources for the employment of capital and labor, [which] contributes to the general welfare and the prosperity of the whole community." In this jurisdiction, "public use" is defined as "whatever is beneficially employed for the community."

DIDIPIO V GUZON (2006) Facts: President Ramos executed an FTAA with AMC over a total land area of 37,000 hectares covering the provinces of Nueva Vizcaya and Quirino. Included in this area is Barangay Dipidio, Kasibu, Nueva Vizcaya. Petitioners filed a demand letter addressed to then DENR Secretary Heherson Alvarez, for the cancellation of the CAMC FTAA for the primary reason that it is unconstitutional Issue: Whether or not mining operators the authority to exercise eminent domain Ruling: Yes. The evolution of mining laws gives positive indication that mining operators who are qualified to own lands were granted the authority to exercise eminent domain for the entry, acquisition, and use of private lands in areas open for mining operations. This grant of authority extant in Section 1 of Presidential Decree No. 512 is not expressly repealed by Section 76 of Rep. Act No. 7942; and neither are the former statutes impliedly repealed by the former. These two provisions can stand together even if Section 76 of Rep. Act No. 7942 does not spell out the grant of the privilege to exercise eminent domain which was present in the old law. The taking to be valid must be for public use. Public use as a requirement for the valid exercise of the power of eminent domain is now synonymous with public interest, public benefit, public welfare and public convenience. It includes the broader notion of indirect public benefit or advantage. Public use as traditionally understood as "actual use by the public" has already been abandoned. Mining industry plays a pivotal role in the economic development of the country and is a vital tool in the governments thrust of accelerated recovery. NAPOCOR VS. TIANGCO (2007) Facts: Private property in Rizal was expropriated. There were two basis: the 1984 and 1993 tax declarations. The trial court fixed the value of the property at its 1984 value, while the CA, at its 1993 worth. The filing for the expropriation was made on 1990 Issue: What value should govern? Ruling: Neither of the two determinations is correct. For purposes of just compensation, the respondents should be paid the value of the property as of the time of the filing of the complaint which is deemed to be the time of taking the property. In eminent domain cases, the time of taking is the filing of the complaint, if there was no actual taking prior thereto. Hence, in this case, the value of the property at the time of the filing of the complaint on November 20, 1990 should be considered in determining the just compensation due the respondents. So it is that in National Power Corporation v. Court of Appeals, et al., we ruled: Normally, the time of the taking coincides with the filing of the complaint for expropriation. Hence, many rulings of this Court have equated just compensation with the value of the property as of the

Compiled by: Thyrza Marbas/Percy Donalvo/Carrie Mae Bangayan

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

time of filing of the complaint consistent with the above provision of the Rules. So too, where the institution of the action precedes entry into the property, the just compensation is to be ascertained as of the time of the filing of the complaint. It was certainly unfair for the trial court to have considered a property value several years behind its worth at the time the complaint in this case was filed on November 20, 1990. The landowners are necessarily shortchanged, considering that, as a rule, land values enjoy steady upward movement. It was likewise erroneous for the appellate court to have fixed the value of the property on the basis of a 1993 assessment. NPC would be paying too much. Petitioner corporation is correct in arguing that the respondents should not profit from an assessment made years after the taking. The expropriation proceedings in this case having been initiated by NPC on November 20, 1990, property values on such month and year should lay the basis for the proper determination of just compensation. In Association of Small Landowners in the Philippines, Inc. v. Secretary of Agrarian Reform, the Court ruled that the equivalent to be rendered for the property to be taken shall be substantial, full, ample and, as must apply to this case, real. This must be taken to mean, among others, that the value as of the time of taking should be the price to be paid the property owner. Just compensation is defined as the full and fair equivalent of the property taken from its owner by the expropriator. In this case, this simply means the propertys fair market value at the time of the filing of the complaint, or "that sum of money which a person desirous but not compelled to buy, and an owner willing but not compelled to sell, would agree on as a price to be given and received therefor." The measure is not the takers gain, but the owners loss. In the determination of such value, the court is not limited to the assessed value of the property or to the schedule of market values determined by the provincial or city appraisal committee; these values consist but one factor in the judicial valuation of the property. The nature and character of the land at the time of its taking is the principal criterion for determining how much just compensation should be given to the landowner. All the facts as to the condition of the property and its surroundings, as well as its improvements and capabilities, should be considered. (Eman Acua) NATIONAL POWER BONGBONG CORPORATION, vs DR. ANTERO

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The trial court stressed that just compensation should be reckoned from 1997 when the taking took place. It noted that, in 1997, NPC consistently paid P300.00 per square meter to the spouses Felipe and Mercedes Larrazabal, Melchor Larrazabal, Fedelina Tuazon, Aznar Enterprises, Inc., Yolinda Beduya, and Trinidad Palanas for the properties it acquired for its transmission lines. It held that NPC should not discriminate against the spouses Bongbong, who should thus be paid the same rate. CA rendered a Decision affirming the RTC decision. The CA held that Section 5, Rule 67 of the Revised Rules of Civil Procedure on the creation of a board of commissioners does not apply to the present case since it is not an expropriation proceeding. The issues in this case are as follows: 1. whether the trial court, as affirmed by the CA, was correct in fixing just compensation at P300.00 per sq m; (2) whether petitioner is obliged to pay the full value of the property taken or easement fee only; (3) whether the procedure laid down in Rule 67 should be followed in determining just compensation; and (4) whether the CA erred in not ordering the transfer of the title over the subject property to petitioner after it was ordered to pay its full market value. The petition is partially granted. 1. We agree with the contention of petitioner that the trial court erred in the determination of just compensation at P300.00 per sq m based on the fact that it paid a similar rate to the other landowners whose properties were likewise acquired by petitioner. Just compensation is the fair value of the property as between one who receives, and one who desires to sell, fixed at the time of the actual taking by the government. This rule holds true when the property is taken before the filing of an expropriation suit, and even if it is the property owner who brings the action for compensation. The nature and character of the land at the time of its taking is the principal criterion for determining how much just compensation should be given to the landowner. In determining just compensation, all the facts as to the condition of the property and its surroundings, its improvements and capabilities, should be considered. In the present case, the trial court determined just compensation without considering the differences in the nature and character or condition of the property compared to the other properties in the province which petitioner had purchased. It simply relied on the fact that petitioner paid P300.00 per sq m to the other landowners whose lands had been taken as a result of the construction of transmission lines. But a perusal of the Deeds of Sale shows that the properties covered by the transmission lines are located in the municipalities of Kananga, Leyte or Tabango, Leyte, while the subject property is located in Villaba, Leyte; the Deeds of Sale describe the properties as industrial, residential/commercial, while the tax declaration of the subject property describes it as "agricultural." Petitioner consistently pointed out these differences and the trial court should not have ignored them. It must be stressed that although the determination of the amount of just compensation is within the courts discretion, it should not be done arbitrarily or capriciously. It must be based on all established rules, upon correct legal principles and competent evidence. 2. No. Pay full value. The Court has consistently held that the determination of just compensation is a judicial function. No statute, decree, or executive order can mandate that its own determination shall prevail over the courts findings. In National Power Corporation v. Manubay Agro-Industrial Development Corporation, petitioner (also the NPC) likewise sought the expropriation of certain properties which would be traversed by its transmission lines. In the said case, petitioner similarly argued that only an easement fee should be paid to respondent since the construction of the transmission lines would be a mere encumbrance on the property, and respondent would not be deprived of its beneficial enjoyment. The Court noted, however, that petitioner sought, and was later granted, authority to enter the property and demolish all the improvements thereon. It, therefore, concluded that the expropriation would, in fact, not be limited to an easement of a right of way only. Similarly, the expropriation by petitioner in the present case does not amount to a mere encumbrance on the property. The records in this case show that petitioner has occupied a 25,100-sq-m area of respondents property. This was not disputed by respondents.

As early as 1996, the National Power Corporation (NPC) negotiated with the spouses Bongbong to use a portion of the property pf the latter for the construction of a 230 KV LCIP Malitbog-Tabango CETL TWR SITE 1046 for the Leyte-Cebu Interconnection Project. When the spouses Bongbong agreed, NPC occupied a 25,100-sq-m portion of the property. On April 22, 1996, NPC paid the spouses Bongbong the amount of P33,582.00 representing the value of the improvements that were damaged by the construction of the project. The voucher for the payment of easement fee was prepared. However, when NPC offered a check for P163,150.00 (representing 10% of the total market value of the area affected) as payment for the easement fee, Antero refused to accept the amount and demanded that NPC pay the full value of the 25,100-sq-m portion it had occupied. On October 28, 1997, the spouses Bongbong received the P163,150.00 under protest. On October 3, 1997, the spouses Bongbong demanded that the NPC pay P8,748,448.00 which they alleged to be the just and reasonable value for their land and improvements. The refusal of NPC to heed their demands prompted the spouses Bongbong to file a complaint for just compensation before the RTC. On May 21, 1999, the spouses Bongbong filed a Motion to Admit as Supplement to the Amended Complaint the New Reappraisal of Plaintiffs Real Property and Improvements, dated February 8, 1999. In the said Reappraisal, which was issued by the Provincial Appraisal Committee (PAC) of Leyte (Resolution No. 03-99), the lot was valued at P300.00 per sq m. NPC opposed the motion, alleging that the payment of just compensation should be based on the market value of the property at the time of its taking in 1997; pursuant to its charter, it paid only an easement fee. On November 5, 1999, the trial court ruled that the value of the plaintiffs property at the time of taking in 1997 is THREE HUNDRED (P300.00) PESOS per square meter or the total amount of SEVEN MILLION FIVE HUNDRED THIRTY THOUSAND (P7,530,000.00) PESOS.

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

Normally, the power of eminent domain results in the taking or appropriation of title to, and possession of, the expropriated property; but no cogent reason appears why the said power may not be availed of to impose only a burden upon the owner of condemned property, without loss of title and possession. It is unquestionable that real property may, through expropriation, be subjected to an easement of right of way. However, as correctly observed by the CA, considering the nature and the effect of the installation power lines, the limitations on the use of the land for an indefinite period would deprive respondent of normal use of the property. For this reason, the latter is entitled to payment of just compensation, which must be neither more nor less than the monetary equivalent of the land. 3. petitioner insists that commissioners should at least be appointed to determine just compensation in accordance with the procedure in Section 5 of Rule 67. On this point, we do not agree with petitioner. Rule 67 need not be followed where the expropriator has violated procedural requirements. When a government agency itself violates procedural requirements, it waives the usual procedure prescribed in Rule 67. This Court ruled in the recent case of National Power Corporation v. Court of Appeals, to wit: We have held that the usual procedure in the determination of just compensation is waived when the government itself initially violates procedural requirements. NPCs taking of Pobres property without filing the appropriate expropriation proceedings and paying him just compensation is a transgression of procedural due process. Like in NPC, the present case is not an action for expropriation. NIA never filed expropriation proceedings although it had ample opportunity to do so. Respondents complaint is an ordinary civil action for the recovery of possession of the Property or its value, and damages. Under these circumstances, a trial before commissioners is not necessary. In National Power Corporation v. Court of Appeals, the Court clarified that when there is no action for expropriation and the case involves only a complaint for damages or just compensation, the provisions of Rule 67 would not apply. This case ceased to be an action for expropriation when NPC dismissed its complaint for expropriation. Since this case has been reduced to a simple case of recovery of damages, the provisions of the Rules of Court on the ascertainment of the just compensation to be paid were no longer applicable. A trial before commissioners, for instance, was dispensable. 4. The CA did not err in not directing the transfer of the title over the subject property to petitioner since no payment has yet been made. It is only upon payment of just compensation that title over the property passes to the expropriator. In sum, we find that the trial court arbitrarily fixed the amount of just compensation due to respondent at P300.00 per sq m without considering the differences in the nature, character and condition of the subject property compared to other properties in the province which petitioner had acquired. For this reason, the Court has no alternative but to remand the case to the trial court for the proper determination of just compensation. CONFEDERATION OF SUGAR PRODUCERS ASSOCIATION, INC., (CONFED), vs. DAR, LAND BANK, LRA Petitioners CONFED, NFSP, UNIFED and PANAYFED claim that their members own or administer private agricultural lands devoted to sugarcane. They and their predecessors-in-interest have been planting sugarcane on their lands allegedly since time immemorial. While their petition is denominated as one for prohibition and mandamus, the petitioners likewise seek to nullify paragraphs (d), (e) and (f) of Section 16 of Republic Act No. (RA) 6657, otherwise known as the Comprehensive Agrarian Reform Law. In other words, their arguments, which will be discussed shortly, are anchored on the proposition that these provisions are unconstitutional. It is the principal contention of the petitioners that, in the exercise by the State of the power of eminent domain, which in the case of RA 6657 is the acquisition of private lands for distribution to farmer-beneficiaries, expropriation proceedings, as prescribed in Rule 67 of the Rules of Court, must be strictly complied with. Furthermore, ART. 349. Provides that No one may be deprived of his property unless it be by competent authority for some purpose of proven public utility and after payment of the proper compensation. Unless this requisite has been complied with, it shall be the duty of the court to protect the owner of such property in its

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possession or to restore its possession to him, as the case may be. In this connection, they cite Section 1 of Rule 67, which they stress is entitled EXPROPRIATION, thus: SEC. 1. The complaint. - The right of eminent domain shall be exercised by the filing of a verified complaint which shall state with certainty the right and purpose of expropriation, describe the real or personal property sought to be expropriated, and join as defendants all persons owning or claiming to own, or occupying, any part thereof or interest therein, showing, so far as practicable, the separate interest of each defendant. If the title to any property sought to be expropriated appears to be in the Republic of the Philippines, although occupied by private individuals, or if the title is otherwise obscure or doubtful so that the plaintiff cannot with accuracy or certainty specify who are the real owners, averment to that effect shall be made in the complaint. The DAR, however, according to the petitioners, particularly through the process of compulsory acquisition, has managed to operate outside of the Constitution and the Rules of Court. They alleged that the compulsory acquisition process adopted by the DAR is absolutely without any constitutional or lawful basis whatsoever. It is allegedly "utterly repugnant to the principle of eminent domain" or "expropriation" and an "unmitigated and lawless usurpation of the constitutional power of the Supreme Court to promulgate rules of procedure." As such, the process of compulsory acquisition is allegedly null and void. The petitioners add that Section 22, Article XVII (Transitory Provisions) of the Constitution states that "[a]t the earliest possible time, the Government shall expropriate idle or abandoned lands as may be defined by law, for distribution to the beneficiaries of the agrarian reform program." The use of the word "expropriate" in this provision allegedly underscores the necessity of expropriation proceedings pursuant to Rule 67 of the Rules of Court in the acquisition of private agricultural lands. With respect to the Land Bank, the petitioners allege that in the light of the Courts pronouncement in Association of Small Landowners that "the determination made by the DAR is only preliminary unless accepted by all parties concerned, [o]therwise, the courts of justice will still have the right to review with finality the said determination in the exercise of what is admittedly a judicial function," the Land Bank cannot effect the payment of compensation as determined by the DAR which is considered as preliminary. The Land Bank must allegedly wait until such compensation is determined with finality by the courts. The Land Registration Authority is similarly assailed as committing grave abuse of discretion since it, through the various Registers of Deeds in the country and particularly in the sugar producing regions in the Visayas, has been allegedly summarily canceling certificates of title merely upon the directive or request of the DAR and without the knowledge and consent of the registered owners. In violation of the pertinent provisions30 of the Land Registration Act (Act No. 496), the Registers of Deeds are allegedly canceling certificates of title of landowners without asking them to surrender their owners duplicate certificates of titles. The petitioners thus pray, inter alia, for the issuance of a writ to prohibit the DAR, the Land Bank and the Land Registration Authority from subjecting the petitioners sugarcane farms to eminent domain or compulsory acquisition without filing the necessary expropriation proceedings pursuant to the provisions of Rule 67 of the Rules of Court and/or without the application or conformity of a majority of the regular farmworkers on said farms. The petition lacks merit. The validity of Section 16, including paragraphs (d), (e) and (f) thereof, of RA 6657 has already been affirmed in Association of Small Landowners. The Court categorically passed upon and upheld the validity of Section 16 of RA 6657, including paragraphs (d), (e) and (f), which sets forth the manner of acquisition of private agricultural lands and ascertainment of just compensation, in this wise: Where the State itself is the expropriator, it is not necessary for it to make a deposit upon its taking possession of the condemned property, as "the compensation is a public charge, the good faith of the public is pledged for its payment, and all the resources of taxation may be employed in raising the amount." Nevertheless, Section 16(e) of the CARP Law provides that: Upon receipt by the landowner of the corresponding payment, or in case of rejection or no response from the landowner, upon the deposit with an accessible bank designated by the DAR of the compensation in cash or in LBP bonds in accordance with this Act,

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

the DAR shall take immediate possession of the land and shall request the proper Register of Deeds to issue a Transfer Certificate of Title (TCT) in the name of the Republic of the Philippines. The DAR shall thereafter proceed with the redistribution of the land to the qualified beneficiaries. Objection is raised, however, to the manner of fixing the just compensation, which it is claimed is entrusted to the administrative authorities in violation of judicial prerogatives. Specific reference is made to Section 16(d), which provides that in case of the rejection or disregard by the owner of the offer of the government to buy his land -the DAR shall conduct summary administrative proceedings to determine the compensation for the land by requiring the landowner, the LBP and other interested parties to submit evidence as to the just compensation for the land, within fifteen (15) days from the receipt of the notice. After the expiration of the above period, the matter is deemed submitted for decision. The DAR shall decide the case within thirty (30) days after it is submitted for decision. The determination made by the DAR is only preliminary unless accepted by all parties concerned. Otherwise, the courts of justice will still have the right to review with finality the said determination in the exercise of what is admittedly a judicial function. To be sure, the determination of just compensation is a function addressed to the courts of justice and may not be usurped by any other branch or official of the government. On the matter of when transfer of possession and ownership of the land to the Government is reckoned, Association of Small Landowners instructs: The CARP Law, for its part, conditions the transfer of possession and ownership of the land to the government on receipt by the landowner of the corresponding payment or the deposit by the DAR of the compensation in cash or LBP bonds with an accessible bank. Until then, title also remains with the landowner. No outright change of ownership is contemplated either. DARs compulsory acquisition procedure is based on Section 16 of RA 6657. It does not, in any way, preclude judicial determination of just compensation. Contrary to the petitioners submission that the compulsory acquisition procedure adopted by the DAR is without legal basis, it is actually based on Section 16 of RA 6657. Under the said law, there are two modes of acquisition of private agricultural lands: compulsory and voluntary. The procedure for compulsory acquisition is that prescribed under Section 16 of RA 6657. The procedure prescribed in Section 16 of RA 6657 is a summary administrative proceeding. The said procedure, taken together with the pertinent administrative issuances of the DAR, ensures compliance with the due process requirements of the law. More importantly, this summary administrative proceeding does not preclude judicial determination of just compensation. In fact, paragraph (e) of Section 16 of RA 6657 is categorical on this point as it provides that "[a]ny party who disagrees with the decision may bring the matter to the court of proper jurisdiction for final determination of just compensation." Rule 67 of the Rules of Court is not entirely disregarded in the implementation of RA 6657 The petitioners main objection to paragraphs (d), (e) and (f) of Section 16 of RA 6657 is that they are allegedly in complete disregard of the expropriation proceedings prescribed under Rule 67 of the Rules of Court. The petitioners argument does not persuade. As declared by the Court in Association of Small Landowners, we are not dealing here with the traditional exercise of the power of eminent domain, but a revolutionary kind of expropriation. The expropriation before us affects all private agricultural lands whenever found and of whatever kind as long as they are in excess of the maximum retention limits allowed their owners. This kind of expropriation is intended for the benefit not only of a particular community or of a small segment of the population but of the entire Filipino nation, from all levels of our society, from the impoverished farmer to the land-glutted owner. Its purpose does not cover only the whole territory of this country but goes beyond in time to the foreseeable future, which it hopes to secure and edify with the vision and the sacrifice of the present generation of Filipinos. Generations yet to come are as involved in this program as we are today, although hopefully only as beneficiaries of a richer and more fulfilling life we will guarantee to them tomorrow through our thoughtfulness today. And, finally, let it not be forgotten that it is no less than the Constitution itself that has ordained this revolution in the farms, calling for "a just distribution" among the farmers of lands that have heretofore been the prison of their dreams and deliverance.

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Despite the revolutionary or non-traditional character of RA 6657, however, the chief limitations on the exercise of the power of eminent domain, namely: (1) public use; and (2) payment of just compensation, are embodied therein as well as in the Constitution. With respect to "public use," the Court in Association of Small Landowners declared that the requirement of public use had already been settled by the Constitution itself as it "calls for agrarian reform, which is the reason why private agricultural lands are to be taken from their owners, subject to the prescribed maximum retention limits. The purposes specified in P.D. No. 27, Proc. No. 131 and RA No. 6657 are only an elaboration of the constitutional injunction that the State adopt the necessary measures to encourage and undertake the just distribution of all agricultural lands to enable farmers who are landless to own directly or collectively the lands they till. That public use, as pronounced by the fundamental law itself, must be binding on us." On the other hand, judicial determination of just compensation is expressly prescribed in Section 57 of RA 6657, quoted above, as it vests on the Special Agrarian Courts original and exclusive jurisdiction over all petitions for the determination of just compensation to landowners. It bears stressing that the determination of just compensation during the compulsory acquisition proceedings of Section 16 of RA 6657 is preliminary only. The inclusion of sugar lands in the coverage of RA 6657 delves into the wisdom of an act of Congress, beyond the ambit of judicial review Indeed, it is not within the power of the Court to pass upon or look into the wisdom of the inclusion by Congress of the sugar lands in the coverage of RA 6657. It is basic in our form of government that the judiciary cannot inquire into the wisdom or expediency of the acts of the executive or the legislative department, for each department is supreme and independent of the others, and each is devoid of authority not only to encroach upon the powers or field of action assigned to any of the other departments, but also to inquire into or pass upon the advisability or wisdom of the acts performed, measures taken or decisions made by the other departments. ASIA'S EMERGING DRAGON CORPORATION, vs. DOTC, SECRETARY LEANDRO R. MENDOZA and MANILA INTERNATIONAL AIRPORT AUTHORITY In the Decision dated 18 April 2008, We dismissed the Petitions in G.R. No. 169914 and G.R. No. 174166 of Asias Emerging Dragon Corporation (AEDC) and Salacnib F. Baterina (Baterina), respectively. The fallo of the Decision reads: WHEREFORE, in view of the foregoing: a. The Petition in G.R. No. 169914 is hereby DISMISSED for lack of merit; and b. The Petition in G.R. No. 174166 is hereby likewise DISMISSED for being moot and academic. AEDC persistently asserts its right to be awarded the NAIA IPT III Project as the original proponent thereof, following the declaration of nullity of the award of the said project to PIATCO in Agan, Jr. v. Philippine International Air Terminals Co., Inc. Extensive as its Motion for Reconsideration may seem, it is mostly a reiteration of the arguments AEDC already raised in its Petition for Mandamus and Prohibition (with Application for Temporary Restraining Order), considered by this Court when it rendered its Decision dated 18 April 2008 dismissing said Petition. We are not persuaded, whether by the previous Petition or the present Motion, to grant AEDC the writs of mandamus and prohibition it prays for in the absence of a clear right to the same. The declaration of nullity of the award of the NAIA IPT III Project to PIATCO in Agan does not automatically entitle AEDC to the award of the said project on the mere basis that it was the original proponent thereof. The rights of the original proponent of an unsolicited proposal are rooted in Section 4-A of Republic Act No. 6957, more commonly known as the Build-Operate-Transfer (BOT) Law, as amended by Republic Act No. 7718. Mr. Justice Renato C. Corona submits that the original proponent of an unsolicited proposal for a BOT project, under Section 4-A of Republic Act No. 6957, as amended, is entitled to the award of the project in at least three circumstances: (1) no competitive bid was submitted; (2) there was a lower bid by a qualified bidder but the original proponent matched it; and (3) there was a lower bid but it was made by a person/entity not qualified to bid, in which case, it is as if no competitive bid had been made. Both Justice Corona and Mr. Justice Presbiterio J. Velasco, Jr., in their dissenting opinions,

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

conclude that AEDC is entitled to the award of the NAIA IPT III project as the original proponent thereof because the third circumstance is extant in this case. We can only accept in part the afore-mentioned enumeration of the circumstances when an original proponent is entitled to the award of the project under Section 4-A of Republic Act No. 6957, as amended. In the 18 April 2008 Decision, we have already exhaustively scrutinized Section 4-A of the BOT Law, as amended, in relation to its IRR, and in consideration of the intent of the legislators who crafted the BOT Law. We find no reason to disturb our conclusion therein that: The special rights or privileges of an original proponent thus come into play only when there are other proposals submitted during the public bidding of the infrastructure project. As can be gleaned from the plain language of the statutes and the IRR, the original proponent has: (1) the right to match the lowest or most advantageous proposal within 30 working days from notice thereof, and (2) in the event that the original proponent is able to match the lowest or most advantageous proposal submitted, then it has the right to be awarded the project. The second right or privilege is contingent upon the actual exercise by the original proponent of the first right or privilege. Before the project could be awarded to the original proponent, he must have been able to match the lowest or most advantageous proposal within the prescribed period. Hence, when the original proponent is able to timely match the lowest or most advantageous proposal, with all things being equal, it shall enjoy preference in the awarding of the infrastructure project. In the instant case, AEDC may be the original proponent of the NAIA IPT III Project; however, the Pre-Qualification Bids and Awards Committee (PBAC) also found the Peoples Air Cargo & Warehousing Co., Inc. Consortium (Paircargo), the predecessor of PIATCO, to be a qualified bidder for the project. Upon consideration of the bid of Paircargo/PIATCO, PBAC found the same to be far more advantageous than the original offer of AEDC. It is already an established fact in Agan that AEDC failed to match the more advantageous proposal submitted by PIATCO by the time the 30-day working period expired on 28 November 1996; and since it did not exercise its right to match the most advantageous proposal within the prescribed period, it cannot assert its right to be awarded the project. In the meantime, PIATCO already began building the NAIA IPT III facilities. By the time this Court promulgated its Decision in Agan, disqualifying PIATCO as a bidder and annulling the award of the NAIA IPT III Project to it, the NAIA IPT III facilities were substantially complete. The Court, in its Resolution in Agan, recognized the right of PIATCO to just compensation for the NAIA IPT III facilities, in accordance with law and equity. The Government, thereafter, instituted an expropriation case for the determination of the just compensation to be paid to PIATCO. In Republic v. Gingoyon, the Court affirmed the application of Republic Act No. 8974 to the expropriation case and the right of the Government to take possession of the NAIA IPT III facilities upon the payment to PIATCO of the proffered value of the same. These developments, as well as the implications and consequences thereof, cannot be conveniently ignored. The factual backdrop has significantly changed from the time of the bidding of the NAIA IPT III Project, which prevents us from concluding that, with the disqualification of PIATCO, AEDC shall automatically acquire NAIA IPT III Project as the original proponent thereof. The bidding and awarding process for the NAIA IPT III Project had long been closed. The Court could not just conveniently revert to the stage of bidding and awarding of the said project and ignore all the factual and legal developments that had already taken place. The three principles of public bidding are: the offer to the public, an opportunity for competition, and a basis for an exact comparison of bids, all of which are present in Sec. 10.9 to Sec. 10.16 of the IRR. First, the project is offered to the public through the publication of the invitation for comparative proposals. Second, the challengers are given the opportunity to compete for the project through the submission of their tender/bid documents. And third, the exact comparison of the bids is ensured by using the same requirements/qualifications/criteria for the original proponent and the challengers. The process of unsolicited proposals does involve public bidding where, in the end, the government is free to choose the bid or proposal most advantageous to it. However, by adoption of the Swiss Challenge (A Swiss challenge is a form of public procurement in some (usually lesser developed) jurisdictions which requires a public authority (usually an agency of government) which has received an unsolicited bid for a public project (such as a port, road or railway) or services to be provided to government, to publish the bid and invite third parties to match or exceed it. It's an offer made by the original

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proponent to the government ensuring his process to be best by his initiative (as a result of his own innovative approach) or on the demand of the government to perform certain task.), special consideration is given in said process to the original proponent of the project, namely, the right to be awarded the project should it be able to match the lowest or most advantageous proposal within 30 working days from notice. There is no truth to the averment of AEDC that we are allowing PIATCO to benefit from its own fraud and wrongdoing. Our refusal to award the NAIA IPT III Project to AEDC does not in any way benefit PIATCO. It is only entitled to just and equitable compensation for building the NAIA IPT III facilities, "for the government cannot unjustly enrich itself at the expense of PIATCO and investors." Just compensation This Court itself will decide how much payment will be due from plaintiffs to defendant PIATCO, in accordance with law, since the determination of just compensation is a judicial function. The amount of just compensation is not for the plaintiffs or defendant PIATCO to decide. This, Congressman Baterina, Et (sic) al. could not possibly set up a petition against both plaintiffs and defendant for illegal disbursement of public funds when it is precisely the Court, not plaintiff or defendant, which will ensure that the determination and payment of just compensation to defendant PIATCO would be in compliance with Philippine laws. There is, therefore, no room in this expropriation case for a taxpayers intervention. Similarly, there is also no room in this expropriation case for the accommodation of a legislators petition. Plaintiffs exercise of the right of eminent domain does not infringe howsoever on legislative prerogatives, powers of (sic) privileges. Furthermore, there is no basis under the Rules of Court or in jurisprudence for the allowance of a petition for prohibition being intermingled with a special civil action for expropriation. MARIA PAZ V. NEPOMUCENO, JOINED BY HER HUSBAND, FERMIN A. NEPOMUCENO VS. CITY OF SURIGAO Petitioners assail the February 29, 2000 decision and October 12, 2000 resolution of the Court of Appeals (CA) in CA-G.R. CV No. 56461 affirming with modification the decision of the Regional Trial Court (RTC) of Surigao City, Branch 32, in Civil Case No. 4570. Civil Case No. 4570 was a complaint for "Recovery of Real Property and/or its Market Value" filed by petitioner Maria Paz Nepomuceno to recover a 652 sq. m. portion of her 50,000 sq. m. lot which was occupied, developed and used as a city road by the city government of Surigao. Maria Paz alleged that the city government neither asked her permission to use the land nor instituted expropriation proceedings for its acquisition. On October 4, 1994, she and her husband, co-petitioner, Fermin A. Nepomuceno, wrote respondent (then Surigao City Mayor) Salvador Sering a letter proposing an amicable settlement for the payment of the portion taken over by the city. They subsequently met with Mayor Sering to discuss their proposal but the mayor rebuffed them in public and refused to pay them anything. In a letter dated January 30, 1995, petitioners sought reconsideration of the mayor's stand. But again, the city mayor turned this down in his reply dated January 31, 1995. In their answer, respondents admitted the existence of the road in question but alleged that it was constructed way back in the 1960s during the administration of former Mayor Pedro Espina. At that time, the lot was owned by the spouses Vicente and Josefa Fernandez who signed a road right-of-way agreement in favor of the municipal government. However, a copy of the agreement could no longer be found because the records were completely destroyed and lost when the Office of the City Engineer was demolished by typhoon Nitang in 1994. RTC ordered the City of Surigao to pay to Maria Paz V. Nepomuceno and her husband, Fermin Nepomuceno, the sum of P5,000.00 as attorney's fees, and the further sum of P3,260.00 as compensation for the portion of land in dispute, with legal interest thereon from 1960 until fully paid, and upon payment, directing her to execute the corresponding deed of conveyance in favor of the said defendant. Petitioners claim that, in fixing the value of their property, justice and equity demand that the value at the time of actual payment should be the basis, not the value at the time of the taking as the RTC and CA held. They demand P200/sq. m. or a total sum of P130,400 plus legal interest. Petitioners also assert that the CA decision in Spouses Mamerto

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

Espina, Sr. and Flor Espina v. City of Ormoc should be applied to this case because of the substantial factual similarity between the two cases. In that case, the City of Ormoc was directed to institute a separate expropriation proceeding over the subject property. Moreover, petitioners maintain that exemplary damages should be awarded because respondent City of Surigao illegally took their property. Petitioners' arguments are without merit.

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(W)here property is taken ahead of the filing of the condemnation proceedings, the value thereof may be enchanced by the public purpose for which it is taken; the entry by the plaintiff upon the property may have depreciated its value thereby; or, there may have been a natural increase in the value of the property from the time the complaint is filed, due to general economic conditions. The owner of private property should be compensated only for what he actually loses; it is not intended that his compensation shall extend beyond his loss or injury. And what he loses is only the actual value of his property at the time it is taken. This is the only way that compensation to be paid can be truly just; i.e., 'just not only to the individual whose property is taken,' 'but to the public, which is to pay for it. Here, petitioner insists that contrary to the findings of the two courts below, the determination of just compensation should be reckoned prior to the time of the filing of the complaint for expropriation. According to petitioner in Civil Case No. 3267-O, petitioner took possession of the land on January 1, 1992 when PNOC leased the same from its administrator as evidenced by a Lease Agreement for the period of January 1, 1992 to December 31, 1992. Thus, taking, for purposes of computing just compensation, should have been reckoned from January 1, 1992. We are not persuaded. In the context of the State's inherent power of eminent domain, there is "taking" where the owner is actually deprived or dispossessed of his property; where there is a practical destruction or a material impairment of the value of his property; or when he is deprived of the ordinary use thereof. In Republic v. Castellvi, this Court held that there is a "taking" when the expropriator enters private property not only for a momentary period but for a more permanent duration, for the purpose of devoting the property to a public use in such a manner as to oust the owner and deprive him of all beneficial enjoyment thereof. Thus, in that case, we rejected the State's contention that a lease on a year to year basis can give rise to a permanent right to occupy, since by express legal provision a lease made for a determinate time, as was the lease of Castellvi's land, ceases upon the day fixed, without need of a demand. Neither can it be said that the right of eminent domain may be exercised by simply leasing the premises to be expropriated. Where, as here, the owner was compensated and not deprived of the ordinary and beneficial use of his property by its being diverted to public use, there is no taking within the constitutional sense. Accordingly, we quote with approval the trial court's ruling on this point: Contrary to plaintiff's position, the lease in 1992 should not be construed as taking in the constitutional sense. What constitutes taking' is when the property is directly appropriated' and not to consequential injuries resulting from the exercise of lawful power'

In a long line of cases, we have consistently ruled that where actual taking is made without the benefit of expropriation proceedings and the owner seeks recovery of the possession of the property prior to the filing of expropriation proceedings, it is the value of the property at the time of taking that is controlling for purposes of compensation. As pointed out in Republic v. Lara, the reason for this rule is: The owner of private property should be compensated only for what he actually loses; it is not intended that his compensation shall extend beyond his loss or injury. And what he loses is only the actual value of his property at the time it is taken. This is the only way the compensation to be paid can be truly just; i.e., "just" not only to the individual whose property is taken, "but to the public, which is to pay for it." Thus, the value of petitioners' property must be ascertained as of 1960 when it was actually taken. It is as of that time that the real measure of their loss may fairly be adjudged. The value, once fixed, shall earn interest at the legal rate until full payment is effected, conformably with other principles laid down by case law. PHILIPPINE NATIONAL OIL COMPANY vs. LEONILO A. MAGLASANG and OSCAR S. MAGLASANG On October 25, 1994, PNOC filed a complaint for eminent domain against respondent Oscar S. Maglasang, the registered owner of a 63,333-square meter parcel of land identified as Lot No. 11900. On November 10, 1994, the PNOC filed another expropriation complaint, this time against respondent Leolino A. Maglasang, owner of the 98,206-square meter parcel of land identified as Lot No. 11907. The subject parcels of land are located at Lim-ao, Municipality of Kananga, Leyte and to be used by the PNOC in the construction and operation of the 125MW Geothermal Power Plant Project. The RTC issued writs of possession over Lot No. 11907 and Lot No. 11900 on December 5, 1994 and December 13, 1994, respectively, after PNOC posted the required provisional deposit. The trial court appointed three commissioners to ascertain and make a recommendation on the just compensation for the condemned lots. Atty. Reforzado submitted a Commissioners' Report dated February 18, 1999, attaching therewith the different valuations recommended by the three commissioners. City Assessor Supremo recommended the price of P 1,000.00 per square meter, Clerk of Court Reforzado pegged the value of the lots at P 900.00 per square meter. In his report, Mr. Pongos arrived at the lowest valuation of P 400.00 per square meter for the developed area and P 85.00 for the undeveloped area. Confronted with the commissioners' varying land valuations, the trial court made its own determination of the just compensation taking into account the range of prices recommended in the Commissioners' Report and documentary evidence presented by the parties. Setting the reckoning period for the computation of the just compensation at the time of the filing of the complaints, the trial court pegged the value of the two lots at P 300.00 per square meter. However, in the same decision, the trial court further increased said initial valuation to P 700.00 per square meter to compensate for what it termed as inflation factor and adjustment factor. On January 23, 2002, the CA rendered the herein challenged decision which modified the decision of the trial court insofar as it reduced the just compensation for the subject lots from P 700.00 to P 300.00. What is the precise time the fixing of just compensation should be reckoned? In expropriation proceedings, the value of the land and its character at the time it was taken by the government are the criteria for determining just compensation. This is so because, there are instances when the expropriating agency takes over the property prior to the expropriation suit, in which situation just compensation shall be determined as of the time of taking. The reason for the rule, as pointed out in Republic v. Lara,11 is that

F. 1. 2.

EQUAL PROTECTION Economic Quality Political Equality

PATRICIO DUMLAO vs. COMMISSION ON ELECTIONS Petitioner Dumlao questions the constitutionality of section 4 of Batas Pambansa Blg. 52 as discriminatory and contrary to the equal protection and due process guarantees of the Constitution. Said Section 4 provides: Sec. 4. Special Disqualification in addition to violation of section 10 of Art. XI I-C of the Constitution and disqualification mentioned in existing laws, which are hereby declared as disqualification for any of the elective officials enumerated in section 1 hereof. Any retired elective provincial city or municipal official who has received payment of the retirement benefits to which he is entitled under the law, and who shall have been 65 years of age at the commencement of the term of office to which he seeks to be elected shall not be qualified to run for the same elective local office from which he has retired (Emphasis supplied) Petitioner Dumlao alleges that the aforecited provision is directed insidiously against him, and that the classification provided therein is based on "purely arbitrary grounds and, therefore, class legislation." Petitioner Dumlao assails the constitutionality of the first paragraph of section 4 of Batas Pambansa Blg. 52, quoted earlier, as being contrary to the equal protection clause guaranteed by the Constitution, and seeks to prohibit respondent COMELEC from implementing said provision.

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

The constitutional guarantee of equal protection of the laws is subject to rational classification. If the groupings are based on reasonable and real differentiations, one class can be treated and regulated differently from another class. For purposes of public service, employees 65 years of age, have been validly classified differently from younger employees. Employees attaining that age are subject to compulsory retirement, while those of younger ages are not so compulsorily retirable. In respect of election to provincial, city, or municipal positions, to require that candidates should not be more than 65 years of age at the time they assume office, if applicable to everyone, might or might not be a reasonable classification although, as the Solicitor General has intimated, a good policy of the law would be to promote the emergence of younger blood in our political elective echelons. On the other hand, it might be that persons more than 65 years old may also be good elective local officials. Coming now to the case of retirees. Retirement from government service may or may not be a reasonable disqualification for elective local officials. For one thing, there can also be retirees from government service at ages, say below 65. It may neither be reasonable to disqualify retirees, aged 65, for a 65 year old retiree could be a good local official just like one, aged 65, who is not a retiree. But, in the case of a 65-year old elective local official, who has retired from a provincial, city or municipal office, there is reason to disqualify him from running for the same office from which he had retired, as provided for in the challenged provision. The need for new blood assumes relevance. The tiredness of the retiree for government work is present, and what is emphatically significant is that the retired employee has already declared himself tired and unavailable for the same government work, but, which, by virtue of a change of mind, he would like to assume again. It is for this very reason that inequality will neither result from the application of the challenged provision. Just as that provision does not deny equal protection neither does it permit of such denial (see People vs. Vera, 65 Phil. 56 [1933]). Persons similarly situated are sinlilarly treated. In fine, it bears reiteration that the equal protection clause does not forbid all legal classification. What is proscribes is a classification which is arbitrary and unreasonable. That constitutional guarantee is not violated by a reasonable classification based upon substantial distinctions, where the classification is germane to the purpose of the law and applies to all those belonging to the same class.

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thereof and urges a co-equal branch of government to respect its mandate. The concept of temporary detention does not necessarily curtail the duty of accused-appellant to discharge his mandate. Accused-appellant has always complied with the conditions/restrictions when allowed to leave jail.

7. 8.

ISSUE: Does membership in Congress exempt an accused from statutes and rules which apply to validly incarcerated persons in general? HELD: No. The accused-appellant has not given any reason why he should be exempted from the operation of Section 11, Article VI of the Constitution. The members of Congress cannot compel absent members to attend sessions if the reason for the absence is a legitimate one. The confinement of a Congressman charged with a crime punishable by imprisonment of more than six months is not merely authorized by law, it has constitutional foundations. What the accused-appellant seeks is not of an emergency nature. Allowing accused-appellant to attend congressional sessions and committee meeting for five (5) days or more in a week will virtually make him free man with all the privilege appurtenant to his position. Such an aberrant situation not only elevates accused-appellant's status to that of a special class, it also would be a mockery of the purposes of the correction system. The Constitution guarantees: ". . . nor shall any person be denied the equal protection of laws." This simply means that all persons similarly situated shall be treated alike both in rights enjoyed and responsibilities imposed. 7 The organs of government may not show any undue favoritism or hostility to any person. Neither partiality not prejudice shall be displayed. Does being an elective official result in a substantial distinction that allows different treatment? Is being a Congressman a substantial differentiation which removes the accused-appellant as a prisoner from the same class as all persons validly confined under law? The performance of legitimate and even essential duties by public officers has never been an excuse to free a person validly in prison. The duties imposed by the "mandate of the people" are multifarious. The accused-appellant asserts that the duty to legislative ranks highest in the hierarchy of government. The accused-appellant is only one of 250 members of the House of Representatives, not to mention the 24 members of the Senate, charged with the duties of legislation. Congress continues to function well in the physical absence of one or a few of its members. Depending on the exigency of Government that has to be addressed, the President or the Supreme Court can also be deemed the highest for that particular duty. The importance of a function depends on the need to its exercise. Never has the call of a particular duty lifted a prisoner into a different classification from those others who are validly restrained by law. We, therefore, find that election to the position of Congressman is not a reasonable classification in criminal law enforcement. The functions and duties of the office are not substantial distinctions which lift him from the class of prisoners interrupted in their freedom and restricted in liberty of movement. Lawful arrest and confinement are germane to the purposes of the law and apply to all those belonging to the same class. Premises considered, we are constrained to rule against the accused-appellant's claim that re-election to public office gives priority to any other right or interest, including the police power of the State. Motion DENIED. [G.R. No. 143076. June 10, 2003] PHILIPPINE RURAL ELECTRIC COOPERATIVES ASSOCIATION, INC. (PHILRECA) vs. THE SECRETARY, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, and THE SECRETARY, DEPARTMENT OF FINANCE Facts: On May 23, 2000, a class suit was filed by petitioners in their own behalf and in behalf of other electric cooperatives organized and existing under P.D. No. 269 who are members of petitioner Philippine Rural Electric Cooperatives Association, Inc. (PHILRECA). Petitioner PHILRECA is an association of 119 electric cooperatives throughout the country. Petitioners Agusan del Norte Electric Cooperative, Inc. (ANECO), Iloilo I Electric Cooperative, Inc. (ILECO I) and Isabela I Electric Cooperative, Inc. (ISELCO I) are non-stock, non-profit electric cooperatives organized and existing under P.D. No. 269, as amended, and registered with the National Electrification Administration (NEA).

3. 4.

SOCIAL EQUITY OTHER CASES INTERNATIONAL vs. QUISUMBING 333 SCRA 13 (2000)

(Andrey Alcomendras) PEOPLE OF THE PHILIPPINES v. ROMEO G. JALOSJOS - G.R. Nos. 132875-76 [2000] PHSC 168 (3 February 2000) FACTS: The accused-appellant, Romeo F. Jaloslos is a full-pledged member of Congress who is now confined at the national penitentiary while his conviction for statutory rape on two counts and acts of lasciviousness on six counts 1 is pending appeal. The accusedappellant filed this motion asking that he be allowed to fully discharge the duties of a Congressman, including attendance at legislative sessions and committee meetings despite his having been convicted in the first instance of a non-bailable offense. The accused-appellant's "Motion To Be Allowed To Discharge Mandate As Member of House of Representatives" was filed on the grounds that 1. Accused-appellant's reelection being an expression of popular will cannot be rendered inutile by any ruling, giving priority to any right or interest not even the police power of the State. 2. To deprive the electorate of their elected representative amounts to taxation without representation. 3. To bar accused-appellant from performing his duties amounts to his suspension/removal and mocks the renewed mandates entrusted to him by the people. 4. The electorate of the First District of Zamboanga del Norte wants their voice to be heard. 5. A precedent-setting U.S. ruling allowed a detained lawmaker to attend sessions of the U.S. Congress.

6.

The House treats accused-appellant as a bona fide member

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

Pursuant to a policy of the state, P.D. No. 269 aims to promote, encourage and assist all public service entities engaged in supplying electric service, particularly electric cooperatives by giving every tenable support and assistance to the electric cooperatives coming within the purview of the law.[2] Accordingly, Section 39 of P.D. No. 269 provides that cooperatives (1) shall be permanently exempt from paying income taxes, and (2) for a period ending on December 31 of the thirtieth full calendar year after the date of a cooperative's organization or conversion hereunder, or until it shall become completely free of indebtedness incurred by borrowing, whichever event first occurs, shall be exempt from the payment (a) of all National Government, local government and municipal taxes and fees, including franchise, filing, recordation, license or permit fees or taxes and any fees, charges, or costs involved in any court or administrative proceeding in which it may be a party, and (b) of all duties or imposts on foreign goods acquired for its operations, the period of such exemption for a new cooperative formed by consolidation, as provided for in Section 29, to begin from as of the date of the beginning of such period for the constituent consolidating cooperative which was most recently organized or converted under this Decree: Provided, That the Board of Administrators shall, after consultation with the Bureau of Internal Revenue, promulgate rules and regulations for the proper implementation of the tax exemptions provided for in this Decree. From 1971 to 1978, in order to finance the electrification projects envisioned by P.D. No. 269, as amended, the Philippine Government entered into six (6) loan agreements with the government of the United States of America through the United States Agency for International Development (USAID) with electric cooperatives, including petitioners ANECO, ILECO I and ISELCO I, as beneficiaries. The six (6) loan agreements involved a total amount of approximately US$86,000,000.00. These loan agreements are existing until today. The loan agreements contain similarly worded provisions on the tax application of the loan and any property or commodity acquired through the proceeds of the loan. Thus, Section 6.5 of A.I.D. Loan No. 492-H-027 dated November 15, 1971 provides that The Borrower covenants and agrees that this Loan Agreement and the Loan provided for herein shall be free from, and the Principal and interest shall be paid to A.I.D. without deduction for and free from, any taxation or fees imposed under any laws or decrees in effect within the Republic of the Philippines or any such taxes or fees so imposed or payable shall be reimbursed by the Borrower with funds other than those provided under the Loan Petitioners assail Sections 193 and 234 of the Local Government Code on the ground that the said provisions discriminate against them, in violation of the equal protection clause. Allegedly, said provisions unduly discriminate against petitioners who are duly registered cooperatives under P.D. No. 269, as amended, and not under R.A. No. 6938 or the Cooperative Code of the Philippines. They stress that cooperatives registered under R.A. No. 6938 are singled out for tax exemption privileges under the Local Government Code. They maintain that electric cooperatives registered with the NEA under P.D. No. 269, as amended, and electric cooperatives registered with the Cooperative Development Authority (CDA) under R.A. No. 6938 are similarly situated for the following reasons: a) petitioners are registered with the NEA which is a government agency like the CDA; b) petitioners, like CDA-registered cooperatives, operate for service to their member-consumers; and c) prior to the enactment of the Local Government Code, petitioners, like CDA-registered cooperatives, were already tax-exempt.[7] Thus, petitioners contend that to grant tax exemptions from local government taxes, including real property tax under Sections 193 and 234 of the Local Government Code only to registered cooperatives under R.A. No. 6938 is a violation of the equal protection clause. ISSUE: Whether or not there is violation of the equal protection clause. HELD: There is no violation of the equal protection clause. The pertinent parts of Sections 193 and 234 of the Local Government Code provide: Section 193. Withdrawal of Tax Exemption Privileges.Unless otherwise provided in this Code, tax exemptions or incentives granted to, or presently enjoyed by all persons, whether natural or juridical, including government-owned and controlled corporations, except local water districts, cooperatives duly registered under R.A. No. 6938, non-stock and non-profit hospitals and educational institutions, are hereby withdrawn upon the effectivity of this Code. . Section 234. Exemptions from real property tax.The following are exempted from payment of the real property tax: . (d) All real property owned by duly registered cooperatives as provided for under R.A. No. 6938; and

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. Except as provided herein, any exemption from payment of real property tax previously granted to, or presently enjoyed by, all persons whether natural or juridical, including all government-owned and controlled corporations are hereby withdrawn upon effectivity of this Code.[6] The equal protection clause under the Constitution means that no person or class of persons shall be deprived of the same protection of laws which is enjoyed by other persons or other classes in the same place and in like circumstances.[8] Thus, the guaranty of the equal protection of the laws is not violated by a law based on reasonable classification. Classification, to be reasonable, must (1) rest on substantial distinctions; (2) be germane to the purposes of the law; (3) not be limited to existing conditions only; and (4) apply equally to all members of the same class.[9] We hold that there is reasonable classification under the Local Government Code to justify the different tax treatment between electric cooperatives covered by P.D. No. 269, as amended, and electric cooperatives under R.A. No. 6938. First, substantial distinctions exist between cooperatives under P.D. No. 269, as amended, and cooperatives under R.A. No. 6938. These distinctions are manifest in at least two material respects which go into the nature of cooperatives envisioned by R.A. No. 6938 and which characteristics are not present in the type of cooperative associations created under P.D. No. 269, as amended. a. Capital Contributions by Members The capital contributions by members of a cooperative under R.A. No. 6938 is one of the key factors which distinguished electric cooperatives under P.D. No. 269, as amended, from electric cooperatives under the Cooperative Code. In cooperatives under P.D. No. 269, the members do not make substantial contribution to the capital required. It is the government that puts in the capital, in most cases. Nowhere in P.D. No. 269, as amended, does it require cooperatives to make equitable contributions to capital. Petitioners themselves admit that to qualify as a member of an electric cooperative under P.D. No. 269, only the payment of a P5.00 membership fee is required which is even refundable the moment the member is no longer interested in getting electric service from the cooperative or will transfer to another place outside the area covered by the cooperative.[13] However, under the Cooperative Code, the articles of cooperation of a cooperative applying for registration must be accompanied with the bonds of the accountable officers and a sworn statement of the treasurer elected by the subscribers showing that at least twenty-five per cent (25%) of the authorized share capital has been subscribed and at least twenty-five per cent (25%) of the total subscription has been paid and in no case shall the paid-up share capital be less than Two thousand pesos (P2,000.00).[14] b. Extent of Government Control over Cooperatives The extent of government control over electric cooperatives covered by P.D. No. 269, as amended, is largely a function of the role of the NEA as a primary source of funds of these electric cooperatives. It is crystal clear that NEA incurred loans from various sources to finance the development and operations of the electric cooperatives. Consequently, amendments to P.D. No. 269 were primarily geared to expand the powers of the NEA over the electric cooperatives to ensure that loans granted to them would be repaid to the government. In contrast, cooperatives under R.A. No. 6938 are envisioned to be self-sufficient and independent organizations with minimal government intervention or regulation. To be sure, the transitory provisions of R.A. No. 6938 are indicative of the recognition by Congress of the fundamental distinctions between electric cooperatives organized under P.D No. 269, as amended, and cooperatives under the new Cooperative Code. Article 128 of the Cooperative Code provides that all cooperatives registered under previous laws shall be deemed registered with the CDA upon submission of certain requirements within one year. However, cooperatives created under P.D. No. 269, as amended, are given three years within which to qualify and register with the CDA, after which, provisions of P.D. No. 1645 which expand the powers of the NEA over electric cooperatives, would no longer apply. [22] Second, the classification of tax-exempt entities in the Local Government Code is germane to the purpose of the law. Section 193 of the Local Government Code is indicative of the legislative intent to vest broad taxing powers upon local government units and to limit exemptions from local taxation to entities specifically provided therein.

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

While we understand petitioners predicament brought about by the withdrawal of their local tax exemption privileges under the Local Government Code, it is not the province of this Court to go into the wisdom of legislative enactments. Courts can only interpret laws. The principle of separation of powers prevents them from re-inventing the laws. Finally, Sections 193 and 234 of the Local Government Code permit reasonable classification as these exemptions are not limited to existing conditions and apply equally to all members of the same class. Exemptions from local taxation, including real property tax, are granted to all cooperatives covered by R.A. No. 6938 and such exemptions exist for as long as the Local Government Code and the provisions therein on local taxation remain good law. The instant petition is DENIED. RODOLFO C. FARIAS, et al v. THE EXECUTIVE SECRETARY, COMMISSION ON ELECTIONS, et al G.R. No. 147387. [2003] PHSC 1044 (10 December 2003) Facts: Before the Court are two Petitions under Rule 65 of the Rules of Court, as amended, seeking to declare as unconstitutional Section 14 of Republic Act No. 9006 (The Fair Election Act), insofar as it expressly repeals Section 67 of Batas Pambansa Blg. 881 (The Omnibus Election Code) which provides: SEC. 67. Candidates holding elective office. Any elective official, whether national or local, running for any office other than the one which he is holding in a permanent capacity, except for President and Vice-President, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy. The petitioners assert that Section 14 of Rep. Act No. 9006 violates the equal protection clause of the Constitution because it repeals Section 67 only of the Omnibus Election Code, leaving intact Section 66 thereof which imposes a similar limitation to appointive officials, thus: SEC. 66. Candidates holding appointive office or position. Any person holding a public appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees in governmentowned or controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy. They contend that Section 14 of Rep. Act No. 9006 discriminates against appointive officials. By the repeal of Section 67, an elective official who runs for office other than the one which he is holding is no longer considered ipso facto resigned therefrom upon filing his certificate of candidacy. Elective officials continue in public office even as they campaign for reelection or election for another elective position. On the other hand, Section 66 has been retained; thus, the limitation on appointive officials remains - they are still considered ipso facto resigned from their offices upon the filing of their certificates of candidacy. Respondents argue that the repeal of Section 67 is germane to the general subject of Rep. Act No. 9006 as expressed in its title as it eliminates the effect of prematurely terminating the term of an elective official by his filing of a certificate of candidacy for an office other than the one which he is permanently holding, such that he is no longer considered ipso facto resigned therefrom. The legislature, by including the repeal of Section 67 of the Omnibus Election Code in Rep. Act No. 9006, has deemed it fit to remove the unfairness of considering an elective official ipso facto resigned from his office upon the filing of his certificate of candidacy for another elective office. With the repeal of Section 67, all elective officials are now placed on equal footing as they are allowed to finish their respective terms even if they run for any office, whether the presidency, vice-presidency or other elective positions, other than the one they are holding in a permanent capacity. According to the respondents, Section 14 of Rep. Act No. 9006, insofar as it repeals Section 67, leaving Section 66 of the Omnibus Election Code intact and effective, does not violate the equal protection clause of the Constitution. Section 67 pertains to elective officials while Section 66 pertains to appointive officials. A substantial distinction exists between these two sets of officials; elective officials occupy their office by virtue of their mandate based upon the popular will, while the appointive officials are not elected by popular will. The latter cannot, therefore, be similarly treated as the former. Equal protection simply requires that all persons or things similarly situated are treated alike, both as to rights conferred and responsibilities imposed. ISSUE: Whether sec 14 of RA 9006 is violative of the equal protection clause.

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Held: No. The equal protection of the law clause in the Constitution is not absolute, but is subject to reasonable classification. If the groupings are characterized by substantial distinctions that make real differences, one class may be treated and regulated differently from the other. [44] The Court has explained the nature of the equal protection guarantee in this manner: The equal protection of the law clause is against undue favor and individual or class privilege, as well as hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation which is limited either in the object to which it is directed or by territory within which it is to operate. It does not demand absolute equality among residents; it merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced. The equal protection clause is not infringed by legislation which applies only to those persons falling within a specified class, if it applies alike to all persons within such class, and reasonable grounds exist for making a distinction between those who fall within such class and those who do not. Substantial distinctions clearly exist between elective officials and appointive officials. The former occupy their office by virtue of the mandate of the electorate. They are elected to an office for a definite term and may be removed therefrom only upon stringent conditions. On the other hand, appointive officials hold their office by virtue of their designation thereto by an appointing authority. Some appointive officials hold their office in a permanent capacity and are entitled to security of tenure while others serve at the pleasure of the appointing authority. Another substantial distinction between the two sets of officials is that under Section 55, Chapter 8, Title I, Subsection A. Civil Service Commission, Book V of the Administrative Code of 1987 (Executive Order No. 292), appointive officials, as officers and employees in the civil service, are strictly prohibited from engaging in any partisan political activity or take part in any election except to vote. Under the same provision, elective officials, or officers or employees holding political offices, are obviously expressly allowed to take part in political and electoral activities. By repealing Section 67 but retaining Section 66 of the Omnibus Election Code, the legislators deemed it proper to treat these two classes of officials differently with respect to the effect on their tenure in the office of the filing of the certificates of candidacy for any position other than those occupied by them. It is not within the power of the Court to pass upon or look into the wisdom of this classification. Since the classification justifying Section 14 of Rep. Act No. 9006, i.e., elected officials vis-a-vis appointive officials, is anchored upon material and significant distinctions and all the persons belonging under the same classification are similarly treated, the equal protection clause of the Constitution is, thus, not infringed. Duncan Association of Detailman-PTGWO, et al. v. Glaxo Wellcome Philippines, Inc. - G.R. No. 162994 [2004] PHSC 959 (17 September 2004) Facts: Petitioner Pedro A. Tecson (Tecson) was hired by respondent Glaxo Wellcome Philippines, Inc. (Glaxo) as medical representative on October 24, 1995, after Tecson had undergone training and orientation. Thereafter, Tecson signed a contract of employment which stipulates, among others, that he agrees to study and abide by existing company rules; to disclose to management any existing or future relationship by consanguinity or affinity with co-employees or employees of competing drug companies and should management find that such relationship poses a possible conflict of interest, to resign from the company. The Employee Code of Conduct of Glaxo similarly provides that an employee is expected to inform management of any existing or future relationship by consanguinity or affinity with co-employees or employees of competing drug companies. If management perceives a conflict of interest or a potential conflict between such relationship and the employees employment with the company, the management and the employee will explore the possibility of a transfer to another department in a non-counterchecking position or preparation for employment outside the company after six months. Tecson was initially assigned to market Glaxos products in the Camarines Sur-Camarines Norte sales area. Subsequently, Tecson entered into a romantic relationship with Bettsy, an employee of Astra Pharmaceuticals[3] (Astra), a competitor of Glaxo. Bettsy was Astras Branch Coordinator in Albay. She supervised the district managers and medical representatives of her company and

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

prepared marketing strategies for Astra in that area. Even before they got married, Tecson received several reminders from his District Manager regarding the conflict of interest which his relationship with Bettsy might engender. Still, love prevailed, and Tecson married Bettsy in September 1998. Tecson requested for time to comply with the company policy against entering into a relationship with an employee of a competitor company. In August 1999, Tecson again requested for more time resolve the problem. In September 1999, Tecson applied for a transfer in Glaxos milk division, thinking that since Astra did not have a milk division, the potential conflict of interest would be eliminated. His application was denied in view of Glaxos least-movementpossible policy. In November 1999, Glaxo transferred Tecson to the Butuan CitySurigao City-Agusan del Sur sales area. Tecson asked Glaxo to reconsider its decision, but his request was denied. Tecson defied the transfer order and continued acting as medical representative in the Camarines Sur-Camarines Norte sales area. Petitioners contend that Glaxos policy against employees marrying employees of competitor companies violates the equal protection clause of the Constitution because it creates invalid distinctions among employees on account only of marriage. They claim that the policy restricts the employees right to marry.[7] Glaxo argues that the company policy prohibiting its employees from having a relationship with and/or marrying an employee of a competitor company is a valid exercise of its management prerogatives and does not violate the equal protection clause; and that Tecsons reassignment does not amount to constructive dismissal.[9] It likewise asserts that the policy does not prohibit marriage per se but only proscribes existing or future relationships with employees of competitor companies, and is therefore not violative of the equal protection clause. It maintains that considering the nature of its business, the prohibition is based on valid grounds.[11] Issue: Whether Glaxos policy against its employees marrying employees from competitor companies violates the equal protection clause of the Constitution. Held: No. The challenged company policy does not violate the equal protection clause of the Constitution as petitioners erroneously suggest. It is a settled principle that the commands of the equal protection clause are addressed only to the state or those acting under color of its authority.[24] The equal protection clause erects no shield against merely private conduct, however, discriminatory or wrongful. [25] The only exception occurs when the state[26] in any of its manifestations or actions has been found to have become entwined or involved in the wrongful private conduct.[27] Obviously, however, the exception is not present in this case. Significantly, the company actually enforced the policy after repeated requests to the employee to comply with the policy. Indeed, the application of the policy was made in an impartial and even-handed manner, with due regard for the lot of the employee. (In any event, from the wordings of the contractual provision and the policy in its employee handbook, it is clear that Glaxo does not impose an absolute prohibition against relationships between its employees and those of competitor companies. Its employees are free to cultivate relationships with and marry persons of their own choosing. What the company merely seeks to avoid is a conflict of interest between the employee and the company that may arise out of such relationships. The assailed company policy which forms part of respondents Employee Code of Conduct and of its contracts with its employees, such as that signed by Tecson, was made known to him prior to his employment. He is therefore estopped from questioning said policy. Glaxos policy prohibiting an employee from having a relationship with an employee of a competitor company is a valid exercise of management prerogative and to avoid conflict of interest. Glaxo has a right to guard its trade secrets, manufacturing formulas, marketing strategies and other confidential programs and information from competitors, especially so that it and Astra are rival companies in the highly competitive pharmaceutical industry. That Glaxo possesses the right to protect its economic interests cannot be denied. No less than the Constitution recognizes the right of enterprises to adopt and enforce such a policy to protect its right to reasonable returns on investments and to expansion and growth.) Rodolfo S. Beltran, et al., v. The Secretary of Health. - G.R. No.

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133640 [2005] PHSC 1311 (25 November 2005) Facts: Before this Court are petitions assailing primarily the constitutionality of Section 7 of Republic Act No. 7719, otherwise known as the National Blood Services Act of 1994, and the validity of Administrative Order (A.O.) No. 9, series of 1995 or the Rules and Regulations Implementing Republic Act No. 7719. Republic Act No. 7719 or the National Blood Services Act of 1994 w was enacted into law on April 2, 1994. The Act seeks to provide an adequate supply of safe blood by promoting voluntary blood donation and by regulating blood banks in the country. On April 28, 1995, Administrative Order No. 9, Series of 1995, constituting the Implementing Rules and Regulations of said law was promulgated by respondent Secretary of the Department of Health (DOH).[6] Section 7 of R.A. 7719 [7] provides: Section 7. Phase-out of Commercial Blood Banks All commercial blood banks shall be phased-out over a period of two (2) years after the effectivity of this Act, extendable to a maximum period of two (2) years by the Secretary. Section 23 of Administrative Order No. 9 provides: Section 23. Process of Phasing Out. -- The Department shall effect the phasing-out of all commercial blood banks over a period of two (2) years, extendible for a maximum period of two (2) years after the effectivity of R.A. 7719. The decision to extend shall be based on the result of a careful study and review of the blood supply and demand and public safety.[8] The phase-out period was extended for two years by the DOH pursuant to Section 7 of Republic Act No. 7719 and Section 23 of its Implementing Rules and Regulations. Pursuant to said Act, all commercial blood banks should have been phased out by May 28, 1998. Hence, petitioners were granted by the Secretary of Health their licenses to open and operate a blood bank only until May 27, 1998. Blood banking and blood transfusion services in the country have been arranged in four (4) categories: blood centers run by the Philippine National Red Cross (PNRC), government-run blood services, private hospital blood banks, and commercial blood services. Petitioners assert that the questioned legal provisions of the National Blood Services Act and its Implementing Rules violate the equal protection clause for irrationally discriminating against free standing blood banks in a manner which is not germane to the purpose of the law; Issue: whether section 7 of RA 7719 and its implementing rules and regulations violate the equal protection clause. Held: No. What may be regarded as a denial of the equal protection of the laws is a question not always easily determined. No rule that will cover every case can be formulated. Class legislation, discriminating against some and favoring others is prohibited but classification on a reasonable basis and not made arbitrarily or capriciously is permitted. The classification, however, to be reasonable: (a) must be based on substantial distinctions which make real differences; (b) must be germane to the purpose of the law; (c) must not be limited to existing conditions only; and, (d) must apply equally to each member of the class. Republic Act No. 7719 or The National Blood Services Act of 1994, was enacted for the promotion of public health and welfare. In January of 1994, the New Tropical Medicine Foundation, with the assistance of the U.S. Agency for International Development (USAID) released its final report of a study on the Philippine blood banking system entitled Project to Evaluate the Safety of the Philippine Blood Banking System. It was revealed that of the blood units collected in 1992, 64.4 % were supplied by commercial blood banks, 14.5% by the PNRC, 13.7% by government hospital-based blood banks, and 7.4% by private hospital-based blood banks. During the time the study was made, there were only twenty-four (24) registered or licensed free-standing or commercial blood banks in the country. Hence, with these numbers in mind, the study deduced that each commercial blood bank produces five times more blood than the Red Cross and fifteen times more than the government-run blood banks. The study, therefore, showed that the Philippines heavily relied on commercial sources of blood. The study

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

likewise revealed that 99.6% of the donors of commercial blood banks and 77.0% of the donors of private-hospital based blood banks are paid donors. Paid donors are those who receive remuneration for donating their blood. Blood donors of the PNRC and government-run hospitals, on the other hand, are mostly voluntary. It was further found, among other things, that blood sold by persons to blood commercial banks are three times more likely to have any of the four (4) tested infections or blood transfusion transmissible diseases, namely, malaria, syphilis, Hepatitis B and Acquired Immune Deficiency Syndrome (AIDS) than those donated to PNRC. Commercial blood banks give paid donors varying rates around P50 to P150, and because of this arrangement, many of these donors are poor, and often they are students, who need cash immediately. Since they need the money, these donors are not usually honest about their medical or social history. Thus, blood from healthy, voluntary donors who give their true medical and social history are about three times much safer than blood from paid donors. What the study also found alarming is that many Filipino doctors are not yet fully trained on the specific indications for blood component transfusion. They are not aware of the lack of blood supply and do not feel the need to adjust their practices and use of blood and blood products. It also does not matter to them where the blood comes from. The Philippine blood banking system is disturbingly primitive and unsafe, and with its current condition, the spread of infectious diseases from blood transfusion is unavoidable. This led to the passage of Republic Act No. 7719, to instill public consciousness of the importance and benefits of voluntary blood donation, safe blood supply and proper blood collection from healthy donors. To do this, the Legislature decided to order the phase out of commercial blood banks to improve the Philippine blood banking system, to regulate the supply and proper collection of safe blood, and so as not to derail the implementation of the voluntary blood donation program of the government. In lieu of commercial blood banks, non-profit blood banks or blood centers, in strict adherence to professional and scientific standards to be established by the DOH, shall be set in place. Based on the foregoing, the Legislature never intended for the law to create a situation in which unjustifiable discrimination and inequality shall be allowed. To effectuate its policy, a classification was made between nonprofit blood banks/centers and commercial blood banks. We deem the classification to be valid and reasonable for the following reasons: 1. it was based on substantial distinctions. The former operates for purely humanitarian reasons and as a medical service while the latter is motivated by profit. Also, while the former wholly encourages voluntary blood donation, the latter treats blood as a sale of commodity 2. the classification, and the consequent phase out of commercial blood banks is germane to the purpose of the law, that is, to provide the nation with an adequate supply of safe blood by promoting voluntary blood donation and treating blood transfusion as a humanitarian or medical service rather than a commodity. This necessarily involves the phase out of commercial blood banks based on the fact that they operate as a business enterprise, and they source their blood supply from paid blood donors who are considered unsafe compared to voluntary blood donors as shown by the USAIDsponsored study on the Philippine blood banking system. 3. the Legislature intended for the general application of the law. Its enactment was not solely to address the peculiar circumstances of the situation nor was it intended to apply only to the existing conditions. Hence, the Court finds that petitioners have failed to overcome the presumption of constitutionality of the law. As to whether the Act constitutes a wise legislation, considering the issues being raised by petitioners, is for Congress to determine. Elena P. Dycaico v. Social Security Commission, et al. - G.R. No. 161357 [2005] PHSC 1331 (30 November 2005) Facts: Bonifacio S. Dycaico became a member of the SSS on January 24, 1980. In his self-employed data record (SSS Form RS-1), he named the petitioner, Elena P. Dycaico, and their eight children as his beneficiaries. At that time, Bonifacio and Elena lived together as husband and wife without the benefit of marriage. In June 1989, Bonifacio was considered retired and began receiving his monthly pension from the SSS. He continued to receive the monthly pension until he passed away on June 19, 1997. A few months prior to his death, however, Bonifacio married the petitioner on January 6, 1997.

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Shortly after Bonifacios death, the petitioner filed with the SSS an application for survivors pension. Her application, however, was denied on the ground that under Section 12-B(d) of Republic Act (Rep. Act) No. 8282 or the Social Security Law[2] she could not be considered a primary beneficiary of Bonifacio as of the date of his retirement. The said proviso reads: Sec. 12-B. Retirement Benefits. (d) Upon the death of the retired member, his primary beneficiaries as of the date of his retirement shall be entitled to receive the monthly pension. Applying this proviso, the petitioner was informed that the Records show that the member [referring to Bonifacio] was considered retired on June 5, 1989 and monthly pension was cancelled upon our receipt of a report on his death on June 19, 1997. In your death claim application, submitted marriage contract with the deceased member shows that you were married in 1997 or after his retirement date; hence, you could not be considered his primary beneficiary. The petitioner points out that the term primary beneficiaries as used in Section 12-B(d) of Rep. Act No. 8282 does not have any qualification. She thus theorizes that regardless of whether the primary beneficiary designated by the member as such is legitimate or not, he or she is entitled to the survivors pension. Reliance by the appellate court and the SSC on the definitions of primary beneficiaries and dependents in Section 8 of Rep. Act No. 8282 is allegedly unwarranted because these definitions cannot modify Section 12-B(d) thereof. The petitioner maintains that when she and Bonifacio got married in January 1997, a few months before he passed away, they merely intended to legalize their relationship and had no intention to commit any fraud. Further, since Rep. Act No. 8282 is a social legislation, it should be construed liberally in favor of claimants like the petitioner. She cites the Courts pronouncement that the sympathy of the law on social security is toward its beneficiaries, and the law, by its own terms, requires a construction of utmost liberality in their favor.[5] The SSS, on the other hand, contends that Section 12-B(d) of Rep. Act No. 8282 should be read in conjunction with the definition of the terms dependents and primary beneficiaries in Section 8 thereof. According to the SSS, there is nothing in Rep. Act No. 8282 which provides that should there be no primary or secondary beneficiaries, the benefit accruing from the death of a member should go to his designated common-law spouse and that to rule otherwise would be to condone the designation of common-law spouses as beneficiaries, a clear case of circumventing the SS Law and a violation of public policy and morals.[6] Finally, the SSS is of the opinion that Section 12-B(d) of Rep. Act No. 8282 is clear and explicit; hence, there is no room for its interpretation, only for application. Issue: whether the proviso as of the date of his retirement in Section 12-B(d) of Rep. Act No. 8282 violates the equal protection and due process clauses of the Constitution. Held: Yes. The Court holds that the proviso as of the date of his retirement in Section 12-B(d) of Rep. Act No. 8282, which qualifies the term primary beneficiaries, is unconstitutional for it violates the due process and equal protection clauses of the Constitution. As illustrated by the petitioners case, the proviso as of the date of his retirement in Section 12-B(d) of Rep. Act No. 8282 which qualifies the term primary beneficiaries results in the classification of dependent spouses as primary beneficiaries into two groups: (1) Those dependent spouses whose respective marriages to SSS members were contracted prior to the latters retirement; and (2) Those dependent spouses whose respective marriages to SSS members were contracted after the latters retirement. Underlying these two classifications of dependent spouses is that their respective marriages are valid. In other words, both groups are legitimate or legal spouses. The distinction between them lies solely on the date the marriage was contracted. The petitioner belongs to the second group of dependent spouses, i.e., her marriage to

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

Bonifacio was contracted after his retirement. She and those similarly situated are undoubtedly discriminated against as the proviso as of the date of his retirement disqualifies them from being considered primary beneficiaries for the purpose of entitlement to survivors pension. Generally, a statute based on reasonable classification does not violate the constitutional guaranty of the equal protection clause of the law. However, as in other statutes, the classification in Rep. Act No. 8282 with respect to entitlement to benefits, to be valid and reasonable, must satisfy the following requirements: (1) it must rest on substantial distinctions; (2) it must be germane to the purpose of the law; (3) it must not be limited to existing conditions only; and (4) it must apply equally to all members of the same class. The legislative history of Rep. Act No. 8282 does not bear out the purpose of Congress in inserting the proviso as of the date of his retirement to qualify the term primary beneficiaries in Section 12B(d) thereof. To the Courts mind, however, the proviso was apparently intended to prevent sham marriages or those contracted by persons solely to enable one spouse to claim benefits upon the anticipated death of the other spouse. This concern is concededly valid. However, classifying dependent spouses and determining their entitlement to survivors pension based on whether the marriage was contracted before or after the retirement of the other spouse, regardless of the duration of the said marriage, bears no relation to the achievement of the policy objective of the law, i.e., provide meaningful protection to members and their beneficiaries against the hazard of disability, sickness, maternity, old age, death and o other contingencies resulting in loss of income or financial burden."[14] Such classification of dependent spouses is not germane to the aforesaid policy objective. For if it were the intention of Congress to prevent sham marriages or those entered in contemplation of imminent death, then it should have prescribed a definite duration-of-relationship or durational period of relationship as one of the requirements for entitlement to survivors pension. In this particular provision, the duration of the marriage is not even considered. It is observed that, in certain instances, the retirement a age under Rep. Act No. 8282 is sixty (60) years old.[16] A marriage contracted by a retired SSS member after the said age may still last for more than ten years, assuming the member lives up to over seventy (70) years old. In such a case, it cannot be said that the marriage was a sham or was entered into solely for the purpose of enabling one spouse to obtain the financial benefits due upon the death of the other spouse. Further, the classification of dependent spouses on the basis of whether their respective marriages to the SSS member were contracted prior to or after the latters retirement for the purpose of entitlement to survivors pension does not rest on real and substantial distinctions. It is arbitrary and discriminatory. It is too sweeping because the proviso as of the date of his retirement, which effectively disqualifies the dependent spouses whose respective marriages to the retired SSS member were contracted after the latters retirement as primary beneficiaries, unfairly lumps all these marriages as sham relationships or were contracted solely for the purpose of acquiring benefits accruing upon the death of the other spouse. The proviso thus unduly prejudices the rights of the legal surviving spouse, like the petitioner, and defeats the avowed policy of the law. James Mirasol, et al. v. Dept. of Public Works & Highways, et al. - G.R. No. 158793 [2006] PHSC 471 (8 June 2006) FACTS: Petitioners assert that Department of Public Works and Highways (DPWH) Department Order No. 74 (DO 74), Department Order No. 215 (DO 215), and the Revised Rules and Regulations on Limited Access Facilities of the Toll Regulatory Board (TRB) violate Republic Act No. 2000 (RA 2000) or the Limited Access Highway Act. Petitioners also seek to declare Department Order No. 123 (DO 123) and Administrative Order No. 1 (AO 1)[2] unconstitutional. Pursuant to its mandate under R.A. 2000, DPWH issued on June 25, 1998 Department Order (DO) No. 215 declaring the Manila-Cavite (Coastal Road) Toll Expressway as limited access facilities. This provides for the enforcement of the total ban on motorcycles along the entire breadth of North and South Luzon Expressways and the ManilaCavite (Coastal Road) Toll Expressway under DO 215. On July 18, 2001, the DPWH acting thru the TRB, issued Department Order No. 123 allowing motorcycles with engine displacement of 400 cubic centimeters inside limited access facilities (toll ways). Petitioners assail the DPWHs failure to provide scientific objective data on the danger of having motorcycles plying highways. They attack this exercise of police power as baseless unwarranted. Petitioners belabor the fact that there are studies and our and that

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provide proof that motorcycles are safe modes of transport. They also claim that AO 1 introduces an unreasonable classification by singling-out motorcycles from other motorized modes of transport. Finally, petitioners argue that AO 1 violates their right to travel. ISSUES: WHETHER DO 74, DO 215 AND THE TRB REGULATIONS CONTRAVENE RA 2000; And WHETHER AO 1 AND DO 123 ARE UNCONSTITUTIONAL.[5] HELD: (DO 74 and DO 215 are void because the DPWH has no authority to declare certain expressways as limited access facilities. Under the law, it is the DOTC which is authorized to administer and enforce all laws, rules and regulations in the field of transportation and to regulate related activities. Since the DPWH has no authority to regulate activities relative to transportation, the TRB cannot derive its power from the DPWH to issue regulations governing limited access facilities. The DPWH cannot delegate a power or function which it does not possess in the first place. Since DO 74 and DO 215 are void, it follows that the rules implementing them are likewise void. Hence, we need not pass upon the constitutionality of the classification of motorcycles under DO 123. ) We now discuss the constitutionality of AO 1. The use of public highways by motor vehicles is subject to regulation as an exercise of the police power of the state. The police power is far-reaching in scope and is the most essential, insistent and illimitable of all government powers. The tendency is to extend rather than to restrict the use of police power. The sole standard in measuring its exercise is reasonableness. What is reasonable is not subject to exact definition or scientific formulation. No all-embracing test of reasonableness exists,[36] for its determination rests upon human judgment applied to the facts and circumstances of each particular case. We find that AO 1 does not impose unreasonable restrictions. None of its rules violates reason. The purpose of these rules and the logic behind them are quite evident. A toll way is not an ordinary road. The special purpose for which a toll way is constructed necessitates the imposition of guidelines in the manner of its use and operation. Inevitably, such rules will restrict certain rights. But the mere fact that certain rights are restricted does not invalidate the rules. The means by which the government chooses to act is not judged in terms of what is best, rather, on simply whether the act is reasonable. The validity of a police power measure does not depend upon the absolute assurance that the purpose desired can in fact be probably fully accomplished, or upon the certainty that it will best serve the purpose intended. Reason, not scientific exactitude, is the measure of the validity of the governmental regulation. Arguments based on what is best are arguments reserved for the Legislatures discussion. Judicial intervention in such matters will only be warranted if the assailed regulation is patently whimsical. We do not find the situation in this case to be so. Neither do we find AO 1 oppressive. Petitioners are not being deprived of their right to use the limited access facility. They are merely being required, just like the rest of the public, to adhere to the rules on how to use the facility. AO 1 does not infringe upon petitioners right to travel but merely bars motorcycles, bicycles, tricycles, pedicabs, and any non-motorized vehicles as the mode of traveling along limited access highways. Several cheap, accessible and practical alternative modes of transport are open to petitioners. There is nothing oppressive in being required to take a bus or drive a car instead of ones scooter, bicycle, calesa, or motorcycle upon using a toll way.) A police power measure may be assailed upon proof that it unduly violates constitutional limitations like due process and equal protection of the law. Petitioners attempt to seek redress from the motorcycle ban under the aegis of equal protection must fail. Petitioners contention that AO 1 unreasonably singles out motorcycles is specious. To begin with, classification by itself is not prohibited. A classification can only be assailed if it is deemed invidious, that is, it is not based on real or substantial differences. We find that it is neither warranted nor reasonable for petitioners to say that the only justifiable classification among modes of transport is the motorized against the non-motorized. Not all motorized vehicles are created equal. A 16-wheeler truck is substantially different from other light vehicles. The first may be denied access to some roads where the latter are free to drive. Old vehicles may be reasonably differentiated from newer models.[46] We find that real and substantial differences exist between a motorcycle and other forms of transport sufficient to justify its classification among those prohibited from plying the toll

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

ways. Amongst all types of motorized transport, it is obvious, even to a child, that a motorcycle is quite different from a car, a bus or a truck. The most obvious and troubling difference would be that a twowheeled vehicle is less stable and more easily overturned than a fourwheeled vehicle. A classification based on practical convenience and common knowledge is not unconstitutional simply because it may lack purely theoretical or scientific uniformity. Moreover, we take note that the Philippines is home to a host of unique motorized modes of transport ranging from modified hand-carts (kuliglig) to bicycle sidecars outfitted with a motor. To follow petitioners argument to its logical conclusion would open up toll ways to all these contraptions. Both safety and traffic considerations militate against any ruling that would bring about such a nightmare. SALVADOR PARREO vs. COMMISSION ON AUDIT FACTS: Salvador Parreo (petitioner) served in the Armed Forces of the Philippines (AFP) for 32 years. On 5 January 1982, petitioner retired from the Philippine Constabulary with the rank of 2nd Lieutenant. Petitioner availed, and received payment, of a lump sum pension equivalent to three years pay. In 1985, petitioner started receiving his monthly pension amounting to P13,680. Petitioner migrated to Hawaii and became a naturalized American citizen. In January 2001, the AFP stopped petitioners monthly pension in accordance with Section 27 of Presidential Decree No. 1638[4] (PD 1638), as amended by Presidential Decree No. 1650.[5] Section 27 of PD 1638, as amended, provides that a retiree who loses his Filipino citizenship shall be removed from the retired list and his retirement benefits terminated upon loss of Filipino citizenship. Petitioner filed a claim before the COA for the continuance of his monthly pension. The COA denied petitioners claim for lack of jurisdiction. The COA ruled that pursuant to the mandate of the Constitution, whenever a dispute involves the validity of laws, the courts, as guardians of the Constitution, have the inherent authority to determine whether a statute enacted by the legislature transcends the limit imposed by the fundamental law. The COA further ruled that even if it assumed jurisdiction over the claim, petitioners entitlement to the retirement benefits he was previously receiving must necessarily cease upon the loss of his Filipino citizenship in accordance with Section 27 of PD 1638, as amended. Issue: Whether Section 27 of PD 1638, as amended, is violates the equal protection clause. Held: No. The constitutional right to equal protection of the laws is not absolute but is subject to reasonable classification. To be reasonable, the classification (a) must be based on substantial distinctions which make real differences; (b) must be germane to the purpose of the law; (c) must not be limited to existing conditions only; and (d) must apply equally to each member of the class. There is compliance with all these conditions. There is a substantial difference between retirees who are citizens of the Philippines and retirees who lost their Filipino citizenship by naturalization in another country, such as petitioner in the case before us. The constitutional right of the state to require all citizens to render personal and military service[20] necessarily includes not only private citizens but also citizens who have retired from military service. A retiree who had lost his Filipino citizenship already renounced his allegiance to the state. Thus, he may no longer be compelled by the state to render compulsory military service when the need arises. Petitioners loss of Filipino citizenship constitutes a substantial distinction that distinguishes him from other retirees who retain their Filipino citizenship. If the groupings are characterized by substantial distinctions that make real differences, one class may be treated and regulated differently from another. Republic Act No. 7077[22] (RA 7077) affirmed the constitutional right of the state to a Citizen Armed Forces. Section 11 of RA 7077 provides that citizen soldiers or reservists include ex-servicemen and retired officers of the AFP. Hence, even when a retiree is no longer in the active service, he is still a part of the Citizen Armed Forces. Thus, we do not find the requirement imposed by Section 27 of PD 1638, as amended, oppressive, discriminatory, or contrary to public policy. The state has the right to impose a reasonable condition that is necessary for national defense. To rule otherwise would be detrimental to the interest of the state. Petitioner has other recourse if he desires to continue receiving his monthly pension. Petitioner will be entitled to receive his monthly pension should he reacquire his Filipino citizenship since he will again

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be entitled to the benefits and privileges of Filipino citizenship reckoned from the time of his reacquisition of Filipino citizenship. There is no legal obstacle to the resumption of his retirement benefits from the time he complies again with the condition of the law, that is, he can receive his retirement benefits provided he is a Filipino citizen. (Petitioner filed his money claim before the COA. The jurisdiction of the COA over money claims against the government does not include the power to rule on the constitutionality or validity of laws. Petitioners money claim essentially involved the constitutionality of Section 27 of PD 1638, as amended. Hence, the COA did not commit grave abuse of discretion in dismissing petitioners money claim.) (Janette Ancog) Manila Int'l Airport Auth. et al v. Olongapo Maintenance Services Inc., et al/ Gana, et al. Vs. Triple Crown etc./G.R. No. 167827(Triple Crown etc. Vs. MIAA). - G.R. No. 146184-85/G.R. No. 161117 [2008] PHSC 60 (31 January 2008) Facts: OMSI and TCSI were among the five contractors of MIAA which had janitorial and maintenance service contracts covering various areas in the Ninoy Aquino International Airport. Before their service contracts expired on October 31, 1998, the MIAA Board of Directors, through Antonio P. Gana, then General Manager (GM) of MIAA, wrote OMSI and TCSI informing them that their contracts would no longer be renewed after October 31, 1998. On September 28, 1998, TCSI, in a letter to Gana, expressed its concern over the award of its concession area to a new service contractor through a negotiated contract. It said that to award TCSIs contract by mere negotiation would violate its right to equal protection of the law. TCSI thus suggested that a public bidding be conducted and that the effectivity of its service contract be meanwhile extended until a winning bid is declared. A similar letter from OMSI to MIAA followed. In reply, MIAA wrote TCSI and OMSI reiterating its disinclination to renew the latters contracts, adding that it was to the governments advantage to instead just negotiate with other contractors. The MIAA said that awarding a contract through negotiation was in accordance with Section 9 of Executive Order No. (EO) 903; Sec. 82 of Republic Act No. (RA) 8522, otherwise known as the General Appropriations Act for 1998; and Sec. 417 of the Government Accounting and Auditing Manual (GAAM). Consequently, OMSI and TCSI instituted civil cases against MIAA to forestall the termination of their contracts and prevent MIAA from negotiating with other service contractors. Issue: Whether there was a violation of respondents right to equal protection. Held: Executive Order No. 301 explicitly permits negotiated contracts in particular identified instances. In its preamble, it adverted to the then existing set-up of "a centralized administrative system . . . for reviewing and approving negotiated contracts . . .," and to the unsatisfactory character thereof in that "such centralized administrative system is not at all facilitative particularly in emergency situations, characterized as it is by red tape and too much delay in the processing and final approval of the required transaction or activity;" hence, the "need to decentralize the processing and final approval of negotiated contracts . . . " It then laid down, in its Section 1, "guidelines for negotiated contracts" thenceforth to be followed. While affirming the general policy that contracts shall not be entered into or renewed without public bidding, x x x. (Emphasis supplied.) It is only in the instances enumerated above that public bidding may be dispensed with and a contract closed through negotiations. It is thus clear that the contention of MIAA and Gana that the exceptions in EO 301, particularly Sec. 1(e), include contracts for public services cannot be sustained. On the claim of OMSI and TCSI that their rights to equal protection of laws were violated by the negotiation of the contracts by MIAA with other service contractors, the Court finds no law that is discriminatory against them in relation to their expired service contracts. EO 301, EO 903, RA 8522, and the GAAM are not discriminatory against them precisely because, as the Court ruled, there has to be public bidding where OMSI and TCSI are allowed to participate. At most,

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

what can be discriminatory is the intended negotiation of the new service contracts by MIAA which prevents OMSI and TCSI from participating in the bidding. We find such act illegal and irregular because of the wrong application of the laws by MIAA and not because the pertinent laws are discriminatory against them. We stressed in Genaro R. Reyes Construction, Inc. v. CA: [A]lthough the law be fair on its face, and impartial in appearance, yet if applied and administered by the public authorities charged with their administration x x x with an evil eye and unequal hand so as to practically make unjust and illegal determination, the denial of equal justice is still within the prohibition of the Constitution. Given the antecedent facts of these consolidated cases, we agree with the courts a quo that the constitutional right of OMSI and TCSI to equal protection is violated by MIAA and Gana when no public bidding was called precisely because the latter were going to award the subject service contracts through negotiation. Worse, the acts of MIAA and Gana smack of arbitrariness and discrimination as they not only did not call for the required public bidding but also did not even accord OMSI and TCSI the opportunity to submit their proposals in a public bidding. What OMSI and TCSI got was a terse reply that their contracts will not be renewed and that MIAA would negotiate contracts lower than those of OMSI and TCSI without granting them the opportunity to submit their own bids or proposals. On the ground of uneven protection of law, we could grant the prayer for an order directing a public bidding. Unfortunately, such action is already foreclosed by the decision of MIAA not to hire any service contractor. Antonio F. Trillanes IV v. Hon. Oscar Pimentel, Sr., etc., et al. G.R. No. 179817 [2008] PHSC 581 (27 June 2008) Facts: At the wee hours of July 27, 2003, a group of more than 300 heavily armed soldiers led by junior officers of the Armed Forces of the Philippines (AFP) stormed into the Oakwood Premier Apartments in Makati City and publicly demanded the resignation of the President and key national officials. Later in the day, President Gloria Macapagal Arroyo issued Proclamation No. 427 and General Order No. 4 declaring a state of rebellion and calling out the Armed Forces to suppress the rebellion. [1] A series of negotiations quelled the teeming tension and eventually resolved the impasse with the surrender of the militant soldiers that evening. In the aftermath of this eventful episode dubbed as the Oakwood Incident, petitioner Antonio F. Trillanes IV was charged, along with his comrades, with coup detat defined under Article 134-A of the Revised Penal Code before the Regional Trial Court (RTC) of Makati. Close to four years later, petitioner, who has remained in detention, threw his hat in the political arena and won a seat in the Senate with a six-year term commencing at noon on June 30, 2007. Before the commencement of his term or on June 22, 2007, petitioner filed with the RTC, Makati City, Branch 148, an Omnibus Motion for Leave of Court to be Allowed to Attend Senate Sessions and Related Requests, chiefly to be allowed to go to the Senate to attend all official functions of the Senate (whether at the Senate or elsewhere) particularly when the Senate is in session, and to attend the regular and plenary sessions of the Senate, committee hearings, committee meetings, consultations, investigations and hearings in aid of legislation, caucuses, staff meetings, etc., which are normally held at the Senate of the Philippines located at the GSIS Financial Center, Pasay City. Issue: Whether or not petitioner may be allowed to attend Senate sessions

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from the class of prisoners interrupted in their freedom and restricted in liberty of movement. Petitioner also posits that his election provides the legal justification to allow him to serve his mandate, after the people, in their sovereign capacity, elected him as Senator. He argues that denying his Omnibus Motion is tantamount to removing him from office, depriving the people of proper representation, denying the peoples will, repudiating the peoples choice, and overruling the mandate of the people. In once more debunking the disenfranchisement argument,[45] it is opportune to wipe out the lingering misimpression that the call of duty conferred by the voice of the people is louder than the litany of lawful restraints articulated in the Constitution and echoed by jurisprudence. The apparent discord may be harmonized by the overarching tenet that the mandate of the people yields to the Constitution which the people themselves ordained to govern all under the rule of law. The performance of legitimate and even essential duties by public officers has never been an excuse to free a person validly in prison. The duties imposed by the mandate of the people are multifarious. The accused-appellant asserts that the duty to legislate ranks highest in the hierarchy of government. The accused-appellant is only one of 250 members of the House of Representatives, not to mention the 24 members of the Senate, charged with the duties of legislation. Congress continues to function well in the physical absence of one or a few of its members. x x x Never has the call of a particular duty lifted a prisoner into a different classification from those others who are validly restrained by law. Lastly, petitioner pleads for the same liberal treatment accorded certain detention prisoners who have also been charged with non-bailable offenses, like former President Joseph Estrada and former Governor Nur Misuari who were allowed to attend social functions. Emergency or compelling temporary leaves from imprisonment are allowed to all prisoners, at the discretion of the authorities or upon court orders.[48] In fact, the trial court previously allowed petitioner to register as a voter in December 2006, file his certificate of candidacy in February 2007, cast his vote on May 14, 2007, be proclaimed as senator-elect, and take his oath of office[49] on June 29, 2007. In a seeming attempt to bind or twist the hands of the trial court lest it be accused of taking a complete turn-around,[50] petitioner largely banks on these prior grants to him and insists on unending concessions and blanket authorizations. Petitioners position fails. On the generality and permanence of his requests alone, petitioners case fails to compare with the species of allowable leaves. Jaloslos succinctly expounds: x x x Allowing accused-appellant to attend congressional sessions and committee meetings for five (5) days or more in a week will virtually make him a free man with all the privileges appurtenant to his position. Such an aberrant situation not only elevates accused-appellants status to that of a special class, it also would be a mockery of the purposes of the correction system.[51] WHEREFORE, the petition is DISMISSED. British American Tobacco v. Jose Isidro N. Camacho, et al. G.R. No. 163583 [2008] PHSC 860 (20 August 2008) Facts: RA 8240, entitled An Act Amending Sections 138, 139, 140, and 142 of the NIRC, as Amended and For Other Purposes, took effect on January 1, 1997. In the same year, Congress passed RA 8424 or The Tax Reform Act of 1997, re-codifying the NIRC. Paragraph (c) of Section 145 provides for four tiers of tax rates based on the net retail price per pack of cigarettes. To determine the applicable tax rates of existing cigarette brands, a survey of the net retail prices per pack of cigarettes was conducted as of October 1, 1996, the results of which were embodied in Annex D of the NIRC as the duly registered, existing or active brands of cigarettes. Paragraph (c) of Section 145, [1] states SEC. 145. Cigars and cigarettes. xxxx (c) Cigarettes packed by machine. There shall be levied, assessed and collected on cigarettes packed by machine a tax at the rates prescribed below: xxxx New brands shall be classified according to their current net retail price.

Held: The petition is bereft of merit. In attempting to strike a distinction between his case and that of Jalosjos, petitioner chiefly points out that former Rep. Romeo Jalosjos (Jalosjos) was already convicted, albeit his conviction was pending appeal, whereas he (petitioner) is a mere detention prisoner. Further, petitioner illustrates that Jalosjos was charged with crimes involving moral turpitude, i.e., two counts of statutory rape and six counts of acts of lasciviousness, whereas he is indicted for coup detat which is regarded as a political offense. The distinctions cited by petitioner were not elemental in the pronouncement in Jalosjos that election to Congress is not a reasonable classification in criminal law enforcement as the functions and duties of the office are not substantial distinctions which lift one

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

xxxxxx The classification of each brand of cigarettes based on its average net retail price as of October 1, 1996, as set forth in Annex D of this Act, shall remain in force until revised by Congress. (Emphasis supplied) As such, new brands of cigarettes shall be taxed according to their current net retail price while existing or old brands shall be taxed based on their net retail price as of October 1, 1996. To implement RA 8240, the Bureau of Internal Revenue (BIR) issued Revenue Regulations No. 1-97,[2] which classified the existing brands of cigarettes as those duly registered or active brands prior to January 1, 1997. New brands, or those registered after January 1, 1997, shall be initially assessed at their suggested retail price until such time that the appropriate survey to determine their current net retail price is conducted. In June 2001, petitioner British American Tobacco introduced into the market Lucky Strike Filter, Lucky Strike Lights and Lucky Strike Menthol Lights cigarettes, with a suggested retail price of P9.90 per pack.[3] Pursuant to Sec. 145 (c) quoted above, the Lucky Strike brands were initially assessed the excise tax at P8.96 per pack. On February 17, 2003, Revenue Regulations No. 9-2003, [4] amended Revenue Regulations No. 1-97 by providing, among others, a periodic review every two years or earlier of the current net retail price of new brands and variants thereof for the purpose of establishing and updating their tax classification. Subsequently, Revenue Regulations No. 22-2003[6] was issued on August 8, 2003 to implement the revised tax classification of certain new brands introduced in the market after January 1, 1997, based on the survey of their current net retail price. The survey revealed that Lucky Strike Filter, Lucky Strike Lights, and Lucky Strike Menthol Lights, are sold at the current net retail price of P22.54, P22.61 and P21.23, per pack, respectively.[7] Respondent Commissioner of the Bureau of Internal Revenue thus recommended the applicable tax rate of P13.44 per pack inasmuch as Lucky Strikes average net retail price is above P10.00 per pack. Thus, on September 1, 2003, petitioner filed before the Regional Trial Court (RTC) of Makati, Branch 61, a petition for injunction with prayer for the issuance of a temporary restraining order (TRO) and/or writ of preliminary injunction, docketed as Civil Case No. 03-1032. Said petition sought to enjoin the implementation of Section 145 of the NIRC, Revenue Regulations Nos. 1-97, 9-2003, 22-2003 and Revenue Memorandum Order No. 6-2003 on the ground that they discriminate against new brands of cigarettes, in violation of the equal protection and uniformity provisions of the Constitution. While the petition was pending, RA 9334 (An Act Increasing The Excise Tax Rates Imposed on Alcohol And Tobacco Products, Amending For The Purpose Sections 131, 141, 143, 144, 145 and 288 of the NIRC of 1997, As Amended), took effect on January 1, 2005. The statute, among others, (1) increased the excise tax rates provided in paragraph (c) of Section 145; (2) mandated that new brands of cigarettes shall initially be classified according to their suggested net retail price, until such time that their correct tax bracket is finally determined under a specified period and, after which, their classification shall remain in force until revised by Congress; (3) retained Annex D as tax base of those surveyed as of October 1, 1996 including the classification of brands for the same products which, although not set forth in said Annex D, were registered on or before January 1, 1997 and were being commercially produced and marketed on or after October 1, 1996, and which continue to be commercially produced and marketed after the effectivity of this Act. Said classification shall remain in force until revised by Congress; and (4) provided a legislative freeze on brands of cigarettes introduced between the period January 2, 1997[17] to December 31, 2003, such that said cigarettes shall remain in the classification under which the BIR has determined them to belong as of December 31, 2003, until revised by Congress. Under RA 9334, the excise tax due on petitioners products was increased to P25.00 per pack. In the implementation thereof, respondent Commissioner assessed petitioners importation of 911,000 packs of Lucky Strike cigarettes at the increased tax rate of P25.00 per pack, rendering it liable for taxes in the total sum of P22,775,000.00. Petitioner assails the constitutionality of RA 9334 insofar as it retained Annex D and praying for a downward classification of Lucky Strike products at the bracket taxable at P8.96 per pack. Petitioner contended that the continued use of Annex D as the tax base of existing brands of cigarettes gives undue protection to said brands which are still taxed based on their price as of October 1996 notwithstanding that they are now sold at the same or even at a higher

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price than new brands like Lucky Strike. Held: As can be seen, the law creates a four-tiered system which we may refer to as the low-priced,[33] medium-priced,[34] high-priced,[35] and premium-priced[36] tax brackets. When a brand is introduced in the market, the current net retail price is determined through the aforequoted specified procedure. The current net retail price is then used to classify under which tax bracket the brand belongs in order to finally determine the corresponding excise tax rate on a per pack basis. The assailed feature of this law pertains to the mechanism where, after a brand is classified based on its current net retail price, the classification is frozen and only Congress can thereafter reclassify the same. Due to this legislative classification scheme, it is possible that over time the net retail price of a previously classified brand, whether it be a brand under Annex D or a new brand classified after the effectivity of RA 8240 on January 1, 1997, would increase (due to inflation, increase of production costs, manufacturers decision to increase its prices, etc.) to a point that its net retail price pierces the tax bracket to which it was previously classified.[38] Consequently, even if its present day net retail price would make it fall under a higher tax bracket, the previously classified brand would continue to be subject to the excise tax rate under the lower tax bracket by virtue of the legislative classification freeze. It is apparent that, contrary to its assertions, petitioner is not only questioning the undue favoritism accorded to brands under Annex D, but the entire mechanism and philosophy of the law which freezes the tax classification of a cigarette brand based on its current net retail price. As thus formulated, the central issue is whether or not the classification freeze provision violates the equal protection and uniformity of taxation clauses of the Constitution. In Sison, Jr. v. Ancheta,[45] this Court, through Chief Justice Fernando, explained the applicable standard in deciding equal protection and uniformity of taxation challenges: Now for equal protection. The applicable standard to avoid the charge that there is a denial of this constitutional mandate whether the assailed act is in the exercise of the police power or the power of eminent domain is to demonstrate "that the governmental act assailed, far from being inspired by the attainment of the common weal was prompted by the spirit of hostility, or at the very least, discrimination that finds no support in reason. It suffices then that the laws operate equally and uniformly on all persons under similar circumstances or that all persons must be treated in the same manner, the conditions not being different, both in the privileges conferred and the liabilities imposed. Favoritism and undue preference cannot be allowed. For the principle is that equal protection and security shall be given to every person under circumstances, which if not identical are analogous. If law be looks upon in terms of burden or charges, those that fall within a class should be treated in the same fashion, whatever restrictions cast on some in the group equally binding on the rest." That same formulation applies as well to taxation measures. The equal protection clause is, of course, inspired by the noble concept of approximating the ideal of the laws's benefits being available to all and the affairs of men being governed by that serene and impartial uniformity, which is of the very essence of the idea of law. There is, however, wisdom, as well as realism, in these words of Justice Frankfurter: "The equality at which the 'equal protection' clause aims is not a disembodied equality. The Fourteenth Amendment enjoins 'the equal protection of the laws,' and laws are not abstract propositions. They do not relate to abstract units A, B and C, but are expressions of policy arising out of specific difficulties, addressed to the attainment of specific ends by the use of specific remedies. The Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same." Hence the constant reiteration of the view that classification if rational in character is allowable. As a matter of fact, in a leading case of Lutz v. Araneta, this Court, through Justice J.B.L. Reyes, went so far as to hold "at any rate, it is inherent in the power to tax that a state be free to select the subjects of taxation, and it has been repeatedly held that 'inequalities which result from a singling out of one particular class for taxation, or exemption infringe no constitutional limitation.'" Petitioner likewise invoked the kindred concept of uniformity. According to the Constitution: "The rule of taxation shall be uniform and equitable." This requirement is met according to Justice Laurel in

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

Philippine Trust Company v. Yatco, decided in 1940, when the tax "operates with the same force and effect in every place where the subject may be found." He likewise added: "The rule of uniformity does not call for perfect uniformity or perfect equality, because this is hardly attainable." The problem of classification did not present itself in that case. It did not arise until nine years later, when the Supreme Court held: "Equality and uniformity in taxation means that all taxable articles or kinds of property of the same class shall be taxed at the same rate. The taxing power has the authority to make reasonable and natural classifications for purposes of taxation, . . . As clarified by Justice Tuason, where "the differentiation" complained of "conforms to the practical dictates of justice and equity" it "is not discriminatory within the meaning of this clause and is therefore uniform." There is quite a similarity then to the standard of equal protection for all that is required is that the tax "applies equally to all persons, firms and corporations placed in similar situation." (Emphasis supplied) In consonance thereto, we have held that in our jurisdiction, the standard and analysis of equal protection challenges in the main have followed the rational basis test, coupled with a deferential attitude to legislative classifications and a reluctance to invalidate a law unless there is a showing of a clear and unequivocal breach of the Constitution. Within the present context of tax legislation on sin products which neither contains a suspect classification nor impinges on a fundamental right, the rational-basis test thus finds application. Under this test, a legislative classification, to survive an equal protection challenge, must be shown to rationally further a legitimate state interest. The classifications must be reasonable and rest upon some ground of difference having a fair and substantial relation to the object of the legislation. Since every law has in its favor the presumption of constitutionality, the burden of proof is on the one attacking the constitutionality of the law to prove beyond reasonable doubt that the legislative classification is without rational basis. The presumption of constitutionality can be overcome only by the most explicit demonstration that a classification is a hostile and oppressive discrimination against particular persons and classes, and that there is no conceivable basis which might support it. A legislative classification that is reasonable does not offend the constitutional guaranty of the equal protection of the laws. The classification is considered valid and reasonable provided that: (1) it rests on substantial distinctions; (2) it is germane to the purpose of the law; (3) it applies, all things being equal, to both present and future conditions; and (4) it applies equally to all those belonging to the same class. The first, third and fourth requisites are satisfied. The classification freeze provision was inserted in the law for reasons of practicality and expediency. That is, since a new brand was not yet in existence at the time of the passage of RA 8240, then Congress needed a uniform mechanism to fix the tax bracket of a new brand. The current net retail price, similar to what was used to classify the brands under Annex D as of October 1, 1996, was thus the logical and practical choice. This does not explain, however, why the classification is frozen after its determination based on current net retail price and how this is germane to the purpose of the assailed law. An examination of the legislative history of RA 8240 provides interesting answers to this question. From the examination of the legislative history, it is quite evident that the classification freeze provision could hardly be considered arbitrary, or motivated by a hostile or oppressive attitude to unduly favor older brands over newer brands. To our mind, the classification freeze provision was in the main the result of Congresss earnest efforts to improve the efficiency and effectivity of the tax administration over sin products while trying to balance the same with other state interests. To elaborate a little, Congress could have reasonably foreseen that, under the DOF proposal and the Senate Version, the periodic reclassification of brands would tempt the cigarette manufacturers to manipulate their price levels or bribe the tax implementers in order to allow their brands to be classified at a lower tax bracket even if their net retail prices have already migrated to a higher tax bracket after the adjustment of the tax brackets to the increase in the consumer price index. Presumably, this could be done when a resurvey and reclassification is forthcoming. All in all, the classification freeze provision addressed Congresss administrative concerns in the simplification of tax administration of sin products, elimination of potential areas for abuse and corruption in tax collection, buoyant and stable revenue generation, and ease of projection of revenues. Consequently, there can be no denial of the equal protection of the laws since the rationalbasis test is amply satisfied. Going now to the contention of petitioner that the classification freeze provision unduly favors older brands over newer brands, we must first contextualize the basis of this claim. As previously discussed, the evidence presented by the petitioner merely

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showed that in 2004, Marlboro and Philip Morris, on the one hand, and Lucky Strike, on the other, would have been taxed at the same rate had the classification freeze provision been not in place. But due to the operation of the classification freeze provision, Lucky Strike was taxed higher. From here, petitioner generalizes that this differential tax treatment arising from the classification freeze provision adversely impacts the fairness of the playing field in the industry, particularly, between older and newer brands. Thus, it is virtually impossible for new brands to enter the market. Petitioner did not, however, clearly demonstrate the exact extent of such impact. It has not been shown that the net retail prices of other older brands previously classified under this classification system have already pierced their tax brackets, and, if so, how this has affected the overall competition in the market. Further, it does not necessarily follow that newer brands cannot compete against older brands because price is not the only factor in the market as there are other factors like consumer preference, brand loyalty, etc. Verily, where there is a claim of breach of the due process and equal protection clauses, considering that they are not fixed rules but rather broad standards, there is a need for proof of such persuasive character as would lead to such a conclusion. Absent such a showing, the presumption of validity must prevail. Whether Congress acted improvidently in derogating, to a limited extent, the states interest in promoting fair competition among the players in the industry, while pursuing other state interests regarding the simplification of tax administration of sin products, elimination of potential areas for abuse and corruption in tax collection, buoyant and stable revenue generation, and ease of projection of revenues through the classification freeze provision, and whether the questioned provision is the best means to achieve these state interests, necessarily go into the wisdom of the assailed law which we cannot inquire into, much less overrule. The classification freeze provision has not been shown to be precipitated by a veiled attempt, or hostile attitude on the part of Congress to unduly favor older brands over newer brands. On the contrary, we must reasonably assume, owing to the respect due a co-equal branch of government and as revealed by the Congressional deliberations, that the enactment of the questioned provision was impelled by an earnest desire to improve the efficiency and effectivity of the tax administration of sin products. For as long as the legislative classification is rationally related to furthering some legitimate state interest, as here, the rational-basis test is satisfied and the constitutional challenge is perfunctorily defeated. (Note: As to the Revenue Regulations insofar as they grant the BIR the power to reclassify or update the classification of new brands every two years or earlier, they were held to be invalid for because they unjustifiably emasculate the operation of Section 145 of the NIRC because they authorize the Commissioner of Internal Revenue to update the tax classification of new brands when nowhere in Section 145 is such authority granted to the Bureau. Unless expressly granted to the BIR, the power to reclassify cigarette brands remains a prerogative of the legislature which cannot be usurped by the former. ABAKADA Guro Party List, et al. v. Hon. Cesar V. Purisima, Hon. Guillermo Parayno, Jr. & Hon. Alberto D. Lina etc. - G.R. No. 166715 [2008] PHSC 856 (14 August 2008) Facts: RA 9335 was enacted to optimize the revenuegeneration capability and collection of the Bureau of Internal Revenue (BIR) and the Bureau of Customs (BOC). The law intends to encourage BIR and BOC officials and employees to exceed their revenue targets by providing a system of rewards and sanctions through the creation of a Rewards and Incentives Fund (Fund) and a Revenue Performance Evaluation Board (Board).[3] It covers all officials and employees of the BIR and the BOC with at least six months of service, regardless of employment status. Petitioners, invoking their right as taxpayers filed this petition challenging the constitutionality of RA 9335, a tax reform legislation. Among their contentions is that limiting the scope of the system of rewards and incentives only to officials and employees of the BIR and the BOC violates the constitutional guarantee of equal protection. There is no valid basis for classification or distinction as to why such a system should not apply to officials and employees of all other government agencies. Held: Equality guaranteed under the equal protection clause is equality under the same conditions and among persons similarly situated; it is equality among equals, not similarity of treatment of persons who are classified based on substantial differences in relation to the object to be accomplished.[19] When things or persons are different in fact or circumstance, they may be treated in law differently. In Victoriano v. Elizalde Rope Workers Union,[20] this Court declared: The guaranty of equal protection of the laws is not a guaranty of equality in the application of the

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

laws upon all citizens of the [S]tate. 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. In the exercise of its power to make classifications for the purpose of enacting laws over matters within its jurisdiction, the state is recognized as enjoying a wide range of discretion. It is not necessary that the classification be based on scientific or marked differences of things or in their relation. Neither is it necessary that the classification be made with mathematical nicety. Hence, legislative classification may in many cases properly rest on narrow distinctions, for the equal protection guaranty does not preclude the legislature from recognizing degrees of evil or harm, and legislation is addressed to evils as they may appear.[21] (emphasis supplied) The equal protection clause recognizes a valid classification, that is, a classification that has a reasonable foundation or rational basis and not arbitrary.[22] With respect to RA 9335, its expressed public policy is the optimization of the revenue-generation capability and collection of the BIR and the BOC.[23] Since the subject of the law is the revenue- generation capability and collection of the BIR and the BOC, the incentives and/or sanctions provided in the law should logically pertain to the said agencies. Moreover, the law concerns only the BIR and the BOC because they have the common distinct primary function of generating revenues for the national government through the collection of taxes, customs duties, fees and charges. Both the BIR and the BOC are bureaus under the DOF. They principally perform the special function of being the instrumentalities through which the State exercises one of its great inherent functions taxation. Indubitably, such substantial distinction is germane and intimately related to the purpose of the law. Hence, the classification and treatment accorded to the BIR and the BOC under RA 9335 fully satisfy the demands of equal protection. II. REQUIREMENTS OF FAIR PROCEDURE 1. REQUIREMENTS FOR SEARCH WARRANT

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warrants in anticipation of criminal cases to be instituted against petitioner Kho. On the same day, the respondent Judge conducted the necessary examination of the applicants and their witnesses, after which he issued Search Warrant Nos. 90-11, 90-12, 90-13, 90-14, and 90-15. On the following day, May 16, 1990, armed with Search Warrant Nos. 90-11 and 90-12, NBI agents searched subject premises at BF Homes, Paranaque, and they recovered various high-powered firearms and hundreds of rounds of ammunition. Meanwhile, another search was conducted at the house at No. 326 McDivitt St. Bgy. Moonwalk, Paranaque, by another team of NBI agents using Search Warrant Nos. 90-13, 90-14 and 90-15. The said second search yielded several high-powered firearms will explosives and more than a thousand rounds of ammunition. The simultaneous searches also resulted in the confiscation of various radio and telecommunication equipment, two units of motor vehicles (Lite-Ace vans) and one motorcycle. Upon verification with the Firearms and Explosives Unit in Camp Crame, the NBI agents found out that no license has ever been issued to any person or entity for the confiscated firearms in question. Likewise, the radio agents found out that no license has ever been issued to any person or entity for the confiscated firearms in question. Likewise, the radio transceivers recovered and motor vehicles seized turned out to be unlicensed and unregistered per records of the government agencies concerned. On May 28, 1990, the petitioners presented a Motion to Quash the said Search Warrants, contending that: 1. The subject search warrants were issued without probable cause: 2. The same search warrants are prohibited by the Constitution for being general warrants; 3. The said search warrants were issued in violation of the procedural requirements set forth by the Constitution; 4. The search warrants aforesaid were served in violation of the Revised Rules of Court; and 5. The objects seized were all legally possessed and issued. Petitioners question the issuance of subject search warrants, theorizing upon the absence of any probable cause therefor. They contend that the surveillance and investigation conducted by NBI agents within the premises involved, prior to the application for the search warrants under controversy, were not sufficient to vest in the applicants personal knowledge of facts and circumstances showing or indicating the commission of a crime by them (petitioners). Held: Petitioners' contention is untenable. Records show that the NBI agents who conducted the surveillance and investigation testified unequivocally that they saw guns being carried to and unloaded at the two houses searched, and motor vehicles and spare parts were stored therein. It is therefore decisively clear that the application for the questioned search warrants was based on the personal knowledge of the applicants and their witnesses. In the case of Central Bank v . Morfe (20 SCRA 507), this Court ruled that the question of whether or not a probable cause exists is one which must be determined in light of the conditions obtaining given situations. In Luna v . Plaza (26 SCRA 310), it held that the existence of a probable cause depends to a large extent upon the finding or opinion of the judge who conducted the required examination of the applicants and the witnesses. After a careful study, the Court discerns no basis for disturbing the findings and conclusions arrived at by the respondent Judge after examining the applicants and witnesses. Respondent judge had the singular opportunity to assess their testimonies and to find out their personal knowledge of facts and circumstances enough to create a probable cause. The Judge was the one who personally examined the applicants and witnesses and who asked searching questions vis-a-vis the applications for search warrants. He was thus able to observe and determine whether subject applicants and their witnesses gave accurate accounts of the surveillance and investigation they conducted at the premises to be searched. In the absence of any showing that respondent judge was recreant of his duties in connection with the personal examination he so conducted on the affiants before him, there is no basis for doubting the reliability and correctness of his findings and impressions. Petitioners brand as fatally defective and deficient the procedure followed in the issuance of subject search warrants, reasoning out that the same did not comply with constitutional and statutory requirements. They fault respondent Judge for allegedly failing to ask specific questions they deem particularly important during the examination of the applicants and their witnesses. This stance of petitioners is similarly devoid of any sustainable basis. Nothing improper is perceived in the manner the respondent Judge

BENJAMIN V. KHO and ELIZABETH ALINDOGAN v. HON. ROBERTO L. MAKALINTAL and NATIONAL BUREAU OF INVESTIGATION - G.R. No. 94902-0 [1999] PHSC 280 (21 April 1999) Facts: On May 15, 1990, NBI Agent Max B. Salvador applied for the issuance of search warrants by the respondent Judge against Benjamin V. Kho, now petitioner, in his residence at No. 45 Bb. Ramona Tirona St., BF Homes, Phase I, Paranaque. On the same day, Eduardo T. Arugay, another NBI agent, applied with the same court for the issuance of search warrants against the said petitioner in his house at No. 326 McDivitt St., Bgy. Moonwalk, Paranaque. The search warrants were applied for after teams of NBI agents had conducted a personal surveillance and investigation in the two houses referred to on the basis of confidential, information they received that the said places were being used as storage centers for unlicensed firearms and "chopchop" vehicles. Respondent NBI sought for the issuance of search

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

conducted the examination of subject applicants for search warrants and their witnesses. He personally examined them under oath, and asked them searching questions on the facts and circumstances personally known to them, in compliance with prescribed procedure and legal requirements. It can be gleaned that the sworn statements and affidavits submitted by the witnesses were duly attached to the pertinent records of the proceedings. It was within the discretion of the examining Judge to determine what questions to ask the witnesses so long as the questions asked are germane to the pivot of inquiry the existence or absence of a probable cause. Petitioners claim that subject search warrants are general warrants prescribed by the Constitution. According to them, the things to be seized were not described and detailed out, i e . the firearms listed were not classified as to size or make, etc. Records on hand indicate that the search warrants under scrutiny specifically describe the items to be seized thus: Search Warrant No. 90- 11. Unlicensed radio communications equipments such as transmitters, transceivers, handsets, scanners, monitoring device and the like. Search Warrant No, 90-13. Unlicensed radio communications equipments such as transmitters, transceivers, handsets, radio communications equipments, scanners, monitoring devices and others. The use of the phrase "and the like" is of no moment. The same did not make the search warrants in question general warrants. In Oca v . Maiquez (14 SCRA 735), the Court upheld the warrant although it described the things to be seized as "books of accounts and allied papers." Subject Warrant Nos. 90-12 and 90-15 refer to: Unlicensed firearms of various calibers and ammunitions for the said firearms. Search Warrant No. 90-14 states: Chop-chop vehicles and other spare parts. The Court believes, and so holds, that the said warrants comply with Constitutional and statutory requirements. The law does not require that the things to be seized must be described in precise and minute detail as to leave no room for doubt on the part of the searching authorities. Otherwise, it would be virtually impossible for the applicants to obtain a warrant as they would not know exactly what kind of things they are looking for. Since the element of time is very crucial in criminal cases, the effort and time spent in researching on the details to be embodied in the warrant would render the purpose of the search nugatory. Verily, the failure to specify detailed descriptions in the warrants did not render the same general.In People v . Rubio (57 Phil 384), the Court held that, ". . . But where, by the nature of the goods to be seized, their description must be rather general, it is not required that a technical description be given, for this would mean that no warrant could issue." It is indeed understandable that the agents of respondent Bureau have no way of knowing whether the guns they intend to seize are a Smith and Wesson or a Beretta. The surveillance conducted could not give the NBI agents a close view of the weapons being transported or brought to the premises to be searched. Thus, they could not be expected to know the detailed particulars of the objects to be seized. Petitioners contend that the searching agents grossly violated the procedure in enforcing the search warrants in question. The petition avers supposedly reprehensible acts perpetrated by the NBI agents. The question of whether there was abuse in the enforcerment of the challanged search warrants is not within the scope of a Motion to Quash. In a Motion to Quash, what is assailed is the validity of the issuance of the warrant. The manner of serving the warrant and of effecting the search are not an issue to be resolved here.

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Surigao del Sur, represented by its Sr. Vice President Ricardo G[.] Santiago, is in possession or ha[s] in [its] control high powered firearms, ammunitions, explosives, which are the subject of the offense, or used or intended to be used in committing the offense, and which . . . are [being kept] and conceal[ed] in the premises herein described. xxx Attached to the application were the joint Deposition of SPO3 Cicero S. Bacolod and SPO2 Cecilio T. Morito, as well as a summary of the information and the supplementary statements of Mario Enad and Felipe Moreno. After propounding several questions to Bacolod, Judge Maximiano C. Asuncion issued the contested search warrant, the pertinent portion of which reads: It appearing to the satisfaction of the undersigned, after examining under oath, SPO3 Cicero S. Bacolod, that there is probable cause to believe that the management of Paper Industries Corporation of the Philippines, located at PICOP Compound, Barangay Tabon, Bislig, Surigao del Sur, represented by its Sr. Vice President Ricardo G. Santiago, has in its possession or control the following: XXXX Believing that the warrant was invalid and the search unreasonable, the petitioners filed a "Motion to Quash" before the trial court. Held: The fundamental right against unreasonable and searches and seizures and the basic conditions for the issuance of a search warrant are laid down in Section 2, Article III of the 1987 Constitution, which reads: The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. (Emphasis supplied) Consistent with the foregoing constitutional provision, Section 3 and 4, Rule 126 of the Rules of Court, detail the requisites for the issuance of a valid search warrant as follows: Sec. 3. Requisite for issuing search warrant. A search warrant shall not issue but upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the things to be seized. Sec. 4. Examination of complainant; record. The judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath the complainant and any witnesses he may produce on facts personally known to them and attach to the record their sworn statements together with any affidavits submitted. More simply stated, the requisites of a valid search warrant are: (1) probable cause is present; (2) such presence is determined personally by the judge; (3) the complainant and the witnesses he or she may produce are personally examined by the judge, in writing and under oath or affirmation; (4) the applicant and the witnesses testify on facts personally known to them; and (5) the warrant specifically describes the place to be searched and the things to be seized. In the present case, the search warrant is invalid because (1) the trail court failed to examine personally the complainant and the other deponents; (2) SPO3 Cicero Bacolod, who appeared during the hearing for the issuance or the search warrant, had no personal knowledge that petitioners were not licensed to possess the subject firearms; and (3) the place to be searched was not described with particularity. No Personal Examination of the Witnesses As earlier stated, Chief Inspector Pascua's application for a search warrant was supported by (1) the joint Deposition of SPO3 Cicero S. Bacolod and SPO2 Cecilio T. Moriro, (2) a summary of information and (3) supplementary statements of Mario Enad and Felipe Moreno. Except for Pascua and Bacolod however, none of the aforementioned witnesses and policemen appeared before the trial court. Moreover, the applicant's participation in the hearing for the issuance of the search warrant consisted only of introducing Witness Bacolod. The trial judge failed to propound questions, let alone probing questions, to the applicant and to his witnesses other than Bacolod (whose testimony, as will later be shown, is also improper). Obviously, His Honor relied mainly on their affidavits. Mere affidavits of the complainant and his witnesses are thus not sufficient. The examining Judge has to take depositions in writing of the complainant and the witnesses he may procedure and attach

PAPER INDUSTRIES CORPORATION OF THE PHILIPPINES, et al v. JUDGE MAXIMIANO C. ASUNCION, Presiding Judge, Branch 104, Regional Trial Court of Quezon City; STATE PROSECUTOR LEO B. DACERA III; and the SPECIAL OPERATIONS UNIT OF THE PNP TRAFFIC MANAGEMENT COMMAND - G.R. No. 122092 [1999] PHSC 357 (19 May 1999)

Facts: On January 25, 1995, Police Chief Inspector Napoleon B. Pascua applied for a search warrant before the said RTC of Quezon City, stating that the management of Paper Industries Corporation of the Philippines, located at PICOP compound, Barangay Tabon, Bislig,

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

them to the record. Such written deposition is necessary in order that the Judge may be able to properly determine the existence or nonexistence of the probable cause, to hold liable for perjury the person giving it if it will be found later that his declarations are false. It is axiomatic that the examination must be probing and exhaustive, not merely routinary or pro-forma , if the claimed probable cause is to be established. The examining magistrate must not simply rehash the contents of the affidavit but must make his own inquiry on the intent and justification of the application. Bacolod's Testimony Pertained Not to Facts Personally Known to Him Bacolod appeared during the hearing and was extensively examined by the judge. But his testimony showed that he did not have personal knowledge that the petitioners, in violation of PD 1866, were not licensed to possess firearms, ammunitions or explosives. When questioned by the judge, Bacolod stated merely that he believed that the PICOP security guards had no license to possess the subject firearms. This, however, does not meet the requirement that a witness must testify on his personal knowledge, not belief. Moreover, Bacolod failed to affirm that none of the firearms seen inside the PICOP compound was licensed. Bacolod merely declared that the security agency and its guard were not licensed. He also said that some of the firearms were owned by PICOP. Yet, he made no statement before the trail court PICOP, aside from the security agency, had no license to possess those firearms. Worse, the applicant and his witnesses inexplicably failed to attach to the application a copy aforementioned "no license" certification from the Firearms and Explosives Office (FEO) of the PNP or to present it during the hearing. Such certification could have been easily obtained, considering that the FEO was located in Camp Crame where the unit of Bacolod was also based. In People v. Judge Estrada , the Court held: The facts and circumstances that would show probable cause must be the best evidence that could be obtained under the circumstances. The introduction of such evidence is necessary in cases where the issue is the existence of the negative ingredient of the offense charged for instance, the absence of a license required by law, as in the present case and such evidence is within the knowledge and control of the applicant who could easily produce the same. But if the best evidence could not be secured at the time of the application, the applicant must show a justifiable reason therefor during the examination by the judge. Particularity of the Place to Be Searched 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 fifty-five hectares." Obviously, the warrant gives the police officers unbridled and thus illegal authority to search all the structures found inside the PICOP compound. 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. 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. 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

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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.

FRANK UY and UNIFISH PACKING CORPORATION vs BUREAU OF INTERNAL REVENUE and HON. MERCEDES GOZO-DADOLE - G.R. No. 129651. [2000] PHSC 1208 (20 October 2000) Facts: On 30 September 1993, a certain Rodrigo Abos reported to the Bureau of Internal Revenue (BIR) that petitioners Unifish Packing Corporation and Uy Chin Ho alias Frank Uy were engaged in activities constituting violations of the National Internal Revenue Code. On 1 October 1993, Nestor N. Labaria, Assistant Chief of the Special Investigation Branch of the BIR, applied for search warrants from Branch 28 of the Regional Trial Court of Cebu. The application sought permission to search the premises of Unifish. After hearing the depositions of Labaria and Abos, Judge Mercedes Gozo-Dadole issued the disputed search warrants. The first warrant included the address in the heading as Hernan Cortes St., Cebu City while the body of the warrant stated Uy Chin Ho c/o Unifish Packing Corporation, Hernan Cortes St., Mandaue City. The second warrant had in the heading the address Hernan Cortes St., Mandaue City and in the body Uy Chin Ho alias Frank Uy and Unifish Packing Corporation, Hernan Cortes St., Mandaue City. Both warrants directed the search and seizure of: 1. Multiple sets of Books of Accounts; Ledgers, Journals, Columnar Books, Cash Register Books, Sales Books or Records; Provisional & Official Receipts; 2. Production Record Books/Inventory Lists [,] Stock Cards; 3. Unregistered Delivery Receipts; 4. Unregistered Purchase & Sales Invoices; 5. Sales Records, Job Order; 6. Corporate Financial Records; and 7. Bank Statements/Cancelled Checks Petitioners contend that there are several defects in the subject warrants that command their nullification. They point out inconsistencies in the description of the place to be searched in Search Warrant A-1, as well as inconsistencies in the names of the persons against whom Search Warrants A-1 and A-2 were issued. That two search warrants (Search Warrants A-1 and A-2) were issued for the same crime, for the same place, at a single occasion is cited as another irregularity. Petitioners also dispute the existence of probable cause that would justify the issuance of the warrants. Finally, they claim that the things to be seized were not described with particularity. These defects, according to petitioners, render the objects seized inadmissible in evidence. Held: Inconsistencies in the description of the place to be searched The Constitution requires, for the validity of a search warrant, that there be a particular description of the place to be searched and the persons of things to be seized. The rule is that a description of a place to be searched is sufficient if the officer with the warrant can, with reasonable effort, ascertain and identify the place intended and distinguish it from other places in the community. Any designation or description known to the locality that points out the place to the exclusion of all others, and on inquiry leads the officers unerringly to it, satisfies the constitutional requirement. In this case, it was not shown that a street similarly named Hernan Cortes could be found in Cebu City. Nor was it established that the enforcing officers had any difficulty in locating the premises of petitioner corporation. That Search Warrant A-1, therefore, inconsistently identified the city where the premises to be searched is not a defect that would spell the warrants invalidation in this case. Inconsistencies in the description of the persons named in the two warrants These discrepancies are hardly relevant. In Miller v. Sigler , it was held that the Fourth Amendment of the United States Constitution, from which Section 2, Article III of our own Constitution is historically derived, does not require the warrant to name the person who occupies the described premises. Where the search warrant is issued for the search of specifically described premises only and not for the search of a person, the failure to name

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

the owner or occupant of such property in the affidavit and search warrant does not invalidate the warrant; and where the name of the owner of the premises sought to be searched is incorrectly inserted in the search warrant, it is not a fatal defect if the legal description of the premises to be searched is otherwise correct so that no discretion is left to the officer making the search as to the place to be searched. Since, in the case at bar, the warrant was issued not for search of the persons owning or occupying the premises, but only a search of the premises occupied by them, the search could not be declared unlawful or in violation of the constitutional rights of the owner or occupants of the premises, because of inconsistencies in stating their names. Two warrants issued at one time for one crime and one place In any event, Search Warrant A-1 should be deemed superseded by Search Warrant A-2. Two warrants, Search Warrants A-1 and A-2, were actually issued by the trial court for the same crime (violation of SEC. 253 of the National Internal Revenue Code). It appears, however, that Search Warrant A-2 was issued merely to correct the inconsistencies in the address in Search Warrant A-1, as well as to include Unifish Packing Corporation as a party against whom the warrant was issued. Search Warrant A-2 was evidently an attempt by the issuing judge to be more precise in the names of the persons against whom the warrant was issued and in the description of the place to be searched. Indeed, it would be absurd for the judge to issue on a single occasion two warrants authorizing the search of a single place for a single offense. Inasmuch as the apparent intent in issuing Search Warrant A-2 was to supersede Search Warrant A-1, the latter should be deemed revoked by the former. The alleged absence of probable cause Probable cause is defined as such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place sought to be searched. In the determination of probable cause, the Constitution and the Rules of Court require an examination of the witnesses under oath. The examination must be probing and exhaustive, not merely routine or pro forma . The examining magistrate must not simply rehash the contents of the affidavit but must make his own inquiry on the intent and justification of the application. Asking of leading questions to the deponent in an application for search warrant, and conducting of examination in a general manner, would not satisfy the requirements for issuance of a valid search warrant. The witnesses, in turn, must testify under oath to facts of their own personal knowledge. The oath required must refer to the truth of the facts within the personal knowledge of the petitioner or his witnesses, because the purpose thereof is to convince the committing magistrate, not the individual making the affidavit and seeking the issuance of the warrant, of the existence of probable cause. Search warrants are not issued on loose, vague or doubtful basis of fact, nor on mere suspicion or belief. It may be recalled that before issuing the warrants, the judge deposed two witnesses, namely, Nestor Labaria of the BIR, and Rodrigo Abos, who claimed to be an old employee of Unifish. Petitioners claim that the testimonies of Labaria and Abos are hearsay. We agree with this contention, but only as to the testimony of Labaria. The application for the warrants, however, is not based solely on Labarias deposition but is supported by that of Abos, whose knowledge of petitioners alleged illegal practices was apparently obtained during his employment with Unifish. Abos stated that, as former Operating Chief of Unifish, he had access to the company records, and even showed the issuing judge photocopies thereof. Thus, we reject the contention that this witness did not have personal knowledge of the facts to which he testified. The contents of the deposition clearly demonstrate otherwise. Alleged lack of particularity in the description of the things seized A search warrant may be said to particularly describe the things to be seized when the description therein is as specific as the circumstances will ordinarily allow (People vs. Rubio, 57 Phil, 384); or when the description expresses a conclusion of fact - not of law - by which the warrant officer may be guided in making the search and seizure ( idem ., dissent of Abad Santos, J .,); or when the things described are limited to those which bear direct relation to the offense for which the warrant is being issued (Sec. 2, Rule 126, Revised Rules of Court). The herein search warrant does not conform to any of the foregoing tests. If the articles desired to be seized have any direct relation to an offense committed, the applicant must necessarily have some evidence, other than those articles, to prove the said offense; and the articles subject of search and seizure should come in handy merely to strengthen such evidence. In this event, the description contained in the herein disputed warrant should have mentioned, at least, the dates, amounts, persons, and other pertinent data regarding the

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receipts of payments, certificates of stocks and securities, contracts, promissory notes, deeds of sale, messages and communications, checks, bank deposits and withdrawals, records of foreign remittances, among others, enumerated in the warrant. We agree that most of the items listed in the warrants fail to meet the test of particularity, especially since witness Abos had furnished the judge photocopies of the documents sought to be seized. The issuing judge could have formed a more specific description of these documents from said photocopies instead of merely employing a generic description thereof. The use of a generic term or a general description in a warrant is acceptable only when a more specific description of the things to be seized is unavailable. The failure to employ the specificity available will invalidate a general description in a warrant. The use by the issuing judge of the terms multiple sets of books of accounts, ledgers, journals, columnar books, cash register books, sales books or records, provisional & official receipts, production record books/inventory lists, stock cards, sales records, job order, corporate financial records, and bank statements/cancelled checks is therefore unacceptable considering the circumstances of this case. As regards the terms unregistered delivery receipts and unregistered purchase & sales invoices, however, we hold otherwise. The Solicitor General correctly argues that the serial markings of these documents need not be specified as it is not possible to do so precisely because they are unregistered. Where, by the nature of the goods to be seized, their description must be rather general, it is not required that a technical description be given, as this would mean that no warrant could issue. Taking into consideration the nature of the articles so described, it is clear that no other more adequate and detailed description could have been given, particularly because it is difficult to give a particular description of the contents thereof. Although it appears that photocopies of these unregistered documents were among those handed by Abos to the issuing judge, it would be impractical to require the latter to specify each and every receipt and invoice, and the contents thereof, to the minutest detail. The general description of most of the documents listed in the warrants does not render the entire warrant void. Insofar as the warrants authorize the search and seizure of unregistered delivery receipts and unregistered purchase and sales invoices, the warrants remain valid. The search warrant is severable, and those items not particularly described may be cut off without destroying the whole warrant. Accordingly, the items not particularly described in the warrants ought to be returned to petitioners. Petitioners allege that the following articles, though not listed in the warrants, were also taken by the enforcing officers: 1. One (1) composition notebook containing Chinese characters, 2. Two (2) pages writing with Chinese characters, 3. Two (2) pages Chinese character writing, 4. Two (2) packs of chemicals, 5. One (1) bound gate pass, 6. Surety Agreement. In addition, the searching party also seized items belonging to the Premier Industrial and Development Corporation (PIDC), which shares an office with petitioner Unifish. The seizure of the items not specified in the warrants cannot be justified by the directive in the penultimate paragraph thereof to "seize and take possession of other properties relative to such violation," which in no way can be characterized as a particular description of the things to be seized. As regards the articles supposedly belonging to PIDC, we cannot order their return in the present proceedings. The legality of a seizure can be contested only by the party whose rights have been impaired thereby, and the objection to an unlawful search and seizure is purely personal and cannot be availed of by third parties. THE PEOPLE OF THE PHILIPPINES v. ROBERTO SALANGUIT y KO - G.R. No. 133254-55 [2001] PHSC 1337 (19 April 2001) Facts: On December 26, 1995, Sr. Insp. Aguilar applied for a warrant in the Regional Trial Court, Branch 90, Dasmariias, Cavite, to search the residence of accused-appellant Robert Salanguit y Ko on Binhagan St., Novaliches, Quezon City. He presented as his witness SPO1 Edmund Badua, who testified that as a poseur-buyer, he was able to purchase 2.12 grams of shabu from accused-appellant. The sale took place in accused-appellant's room, and Badua saw that the shabu was taken by accused-appellant from a cabinet inside his room. The application was granted, and a search warrant was later

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

issued by Presiding Judge Dolores L. Espaol. In this case, the search warrant issued against accused-appellant reads: SEARCH WARRANT NO.160 For: Violation of RA 6425 SEARCH WARRANT TO ANY PEACE OFFICER: G R E E T I N G S: It appearing to the satisfaction of the undersigned after examining under oath SR. INSP. RODOLFO V. AGUILAR, PNP and his witness SPO1 EDMUND M. BADUA, PNP that there is probable cause to believe that ROBERT SALANGUIT has in his possession and control in his premises Binhagan St., San Jose, Quezon City as shown in Annex "A", the properties to wit: UNDETERMINED QUANTITY OF SHABU AND DRUG PARAPHERNALIA which should be seized and brought to the undersigned. You are hereby commanded to make an immediate search anytime of the day/night of the premises above-described and forthwith seize and take possession of the above-stated properties and bring said properties to the undersigned to be dealt with as the law directs. GIVEN UNDER MY HAND this 26 th day of December 1995 at Imus, Cavite, Philippines. (SGD.) DOLORES L. ESPAOL Judge Accused-appellant assails the validity of the warrant on three grounds: (1) that there was no probable cause to search for drug paraphernalia; (2) that the search warrant was issued for more than one specific offense; and (3) that the place to be searched was not described with sufficient particularity. Held: Existence of Probable Cause The warrant authorized the seizure of "undetermined quantity of shabu and drug paraphernalia." Evidence was presented showing probable cause of the existence of methamphetamine hydrochloride or shabu. Accused-appellant contends, however, that the search warrant issued is void because no evidence was presented showing the existence of drug paraphernalia and the same should not have been ordered to be seized by the trial court. The contention has no merit. To be sure, SPO1 Edmund Badua, the intelligence officer who acted as a poseur-buyer, did not testify in the proceedings for the issuance of a search warrant on anything about drug paraphernalia. The fact that there was no probable cause to support the application for the seizure of drug paraphernalia does not warrant the conclusion that the search warrant is void. This fact would be material only if drug paraphernalia was in fact seized by the police. The fact is that none was taken by virtue of the search warrant issued. If at all, therefore, the search warrant is void only insofar as it authorized the seizure of drug paraphernalia, but it is valid as to the seizure of methamphetamine hydrochloride as to which evidence was presented showing probable cause as to its existence. Accordingly, we hold that the first part of the search warrant, authorizing the search of accused-appellant's house for an undetermined quantity of shabu, is valid, even though the second part, with respect to the search for drug paraphernalia, is not. Specificity of the Offense Charged Accused-appellant contends that the warrant was issued for more than one specific offense because possession or use of methamphetamine hydrochloride and possession of drug paraphernalia are punished under two different provisions of R.A. No. 6425. Indeed, in People v. Dichoso the search warrant was also for "Violation of R.A. 6425," without specifying what provisions of the law were violated, and it authorized the search and seizure of "dried marijuana leaves and methamphetamine hydrochloride (shabu) and sets of paraphernalias (sic)." This Court, however, upheld the validity of the warrant: Appellant's contention that the search warrant in question was issued for more than (1) offense, hence, in violation of Section 3, Rule 126 of the Rules of Court, is unpersuasive. He engages in semantic juggling by suggesting that since illegal possession of shabu, illegal possession of marijuana and illegal possession of paraphernalia are covered by different articles and sections of the Dangerous Drugs Act of 1972, the search warrant is clearly for more than one (1) specific offense. In short, following this theory, there should have been three (3) separate search warrants, one for illegal possession of shabu, the second for illegal possession of marijuana and the third for illegal possession of paraphernalia. This argument is pedantic. The Dangerous Drugs Act of 1972 is a special law that deals specifically with dangerous drugs which are subsumed into "prohibited" and "regulated" drugs and defines and penalizes categories of offenses which are closely related or which belong to the same class or species. Accordingly, one (1)

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search warrant may thus be validly issued for the said violations of the Dangerous Drugs Act. Particularly of the Place Accused-appellant contends that the search warrant failed to indicate the place to be searched with sufficient particularity. This contention is without merit. As the Solicitor General states: .....While the address stated in the warrant is merely "Binhagan St., San Jose, Quezon City," the trial court took note of the fact that the records of Search Warrant Case No.160 contained several documents which identified the premises to be searched, to wit: 1) the application for search warrant which stated that the premises to be searched was located in between No.7 and 11 at Binhagan Street, San Jose, Quezon City; 2) the deposition of witness which described the premises as "a house without a number located at Binhagan St., San Jose, Quezon City; and 3) the pencil sketch of the location of the premises to be searched. The rule is that a description of the place to be searched is sufficient if the officer with the warrant can, with reasonable effort, ascertain and identify the place intended to be searched. 33 For example, a search warrant authorized a search of Apartment Number 3 of a building at 83 Pleasant Street, Malborough, Massachusetts. As it turned out, there were five apartments in the basement and six apartments on both the ground and top floors and that there was an Apartment Number 3 on each floor. However, the description was made determinate by a reference to the affidavit supporting the warrant that the apartment was occupied by the accused "Morris Ferrante of 83 Pleasant Street, Malboro Mass." In this case, the location of accused-appellant's house being indicated by the evidence on record, there can be no doubt that the warrant described the place to be searched with sufficient particularity. In sum, we hold that with respect to the seizure of shabu from accused-appellant's residence, Search Warrant No.160 was properly issued, such warrant being founded on probable cause personally determined by the judge under oath or affirmation of the deposing witness and particularly describing the place to be searched and the things to be seized. (note: Another issue in the case pertains to the applicability of the Plain View doctrine on the seizure of two newsprint-wrapped bricks of marijuana along with the shabu. The court held that the seizure of the marijuana was invalid for the ff. reasons: 1. Although the officers had prior justification to be in the premises, such justification ended when the shabu which is the subject of the warrant was seized, hence they had no justification to conduct a further search of the premises. 2. illegality of the marijuana was not evident since they were wrapped in newsprint.) (Carrie Mae Bangayan) PEOPLE vs. SIMBAHON Facts: Search Warrant is issued by the judge against the accused, commanding the search in the premises of 771 Roxas Street, Sampaloc, Manila, owned by appellant Danilo Simbahon y Quiatzon, for alleged violation of Republic Act No. 6425, otherwise known as the Dangerous Drugs Act of 1972, as amended, and Presidential Decree No. 1866, penalizing the illegal possession of firearms. The body of the warrant contained a directive to the peace officers to search for and seize shabu packaging/ sniffing paraphernalia and . 38 caliber revolver. Issue: Is the search warrant valid? Held: No. the case should be dismissed on the ground of manifest violations of the constitutional right of the accused against illegal search and seizure. While appellant may be deemed to have waived his right to question the legality of the search warrant and the admissibility of the evidence seized for failure to raise his objections at the opportune time, however, the record shows serious defects in the search warrant itself which render the same null and void. The caption as well as the body of Search Warrant No. 95-100 show that it was issued for more than one offense for violation of RA 6425 and for violation of PD 1866. On its face, the search warrant violates Section 3, Rule 123 of the Revised Rules of Court, which prohibits the issuance of a search warrant for more than one specific offense. The caption of Search Warrant No. 365 reflects the violation of two special laws: P.D. No. 1866 for illegal possession of firearms, ammunitions and explosives; and R.A. No. 1700, the Anti-Subversive Law. Search Warrant No. 365 was therefore a scatter-shot warrant and totally null and void.

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

Likewise, the warrant failed to describe the place to be searched with sufficient particularity. The rule is that a description of a place to be searched is sufficient if the officer with the warrant can, with reasonable effort, ascertain and identify the place intended. The constitutional requirement is a description which particularly points to a definitely ascertainable place, so as to exclude all others. In the case at bar, only the application for search warrant contained the address of the place to be searched. The search warrant issued by the court merely referred to appellants residence as premises, without specifying its address. The Constitution and the Rules of Court limit the place to be searched only to those described in the warrant. The absence of a particular description in the search warrant renders the same void. Finally, the seized marijuana was not mentioned in the search warrant issued for the search of appellants house. The seizure by the police officers conducting the search of articles not described in the search warrant was beyond the parameters of their authority under the search warrant. Article III, Section 2 of the 1987 Constitution. MICROSOFT vs. MAXICORP FACTS: The NBI filed for a search warrant against MAXICORP for violation of PD 49 (copyright infringement) and Art. 189 (unfair competition) of RPC. Par C of the warrant states: c) Sundry items such as labels, boxes, prints, packages, wrappers, receptacles, advertisements and other paraphernalia bearing the copyrights and/or trademarks owned by MICROSOFT CORPORATION; e) Computer hardware, including central processing units including hard disks, CD-ROM drives, keyboards, monitor screens and diskettes, photocopying machines and other equipment or paraphernalia used or intended to be used in the illegal and unauthorized copying or reproduction of Microsoft software and their manuals, or which contain, display or otherwise exhibit, without the authority of MICROSOFT CORPORATION, any and all Microsoft trademarks and copyrights; Issue: Does the warrant particularly describe the thing seized? Held: A search warrant is severable, the items not sufficiently described may be cut off without destroying the whole warrant It is only required that a search warrant be specific as far as the circumstances will ordinarily allow.38 The description of the property to be seized need not be technically accurate or precise. The nature of the description should vary according to whether the identity of the property or its character is a matter of concern. 39 Measured against this standard we find that paragraph (e) is not a general warrant. The articles to be seized were not only sufficiently identified physically, they were also specifically identified by stating their relation to the offense charged. Paragraph (e) specifically refers to those articles used or intended for use in the illegal and unauthorized copying of petitioners software. This language meets the test of specificity. However, we find paragraph (c) of the search warrants lacking in particularity The scope of this description is all-embracing since it covers property used for personal or other purposes not related to copyright infringement or unfair competition. Moreover, the description covers property that Maxicorp may have bought legitimately from Microsoft or its licensed distributors. Paragraph (c) simply calls for the seizure of all items bearing the Microsoft logo, whether legitimately possessed or not. Neither does it limit the seizure to products used in copyright infringement or unfair competition. No provision of law exists which requires that a warrant, partially defective in specifying some items sought to be seized yet particular with respect to the other items, should be nullified as a whole. A partially defective warrant remains valid as to the items specifically described in the warrant. A search warrant is severable, the items not sufficiently described may be cut off without destroying the whole warrant. Thus, all items seized under paragraph (c) of the search warrants, not falling under paragraphs a, b, d, e or f, should be returned to Maxicorp. VALLEJO vs. COURT OF APPEALS FACTS: NBI Agent Javier received a tip-off from vallejo about fixers submitting to the latter fake titles. Nbi conducted a surveillance and found the tip-off to be true. Clerk assigned to the registry of deeds of Isabela volunteered to provide CAVRO with vital information.A search warrant was approved by Judge de Alban after finding the existence of probable cause.

Case Pool 4Manresa2009-2010

CAVRO found and seized inside the premises of Register of Deeds several fake titles and documents and a return search was conducted few weeks after. Petitioner contends that the nature of the warrant was of a general warrant since there was no particularity as to what documents were to be searched and seized. (While the warrant made mention fake land titles, there was no mention of which titles were spurious. The phrase undetermined number of land transfer transactions without the corresponding payment of capital gains tax and payment of documentary stamps is, likewise, a dangerous supposition, as there are millions of documents on various land transactions kept in the registry. Anent the phrase blank forms of land titles kept inside the drawers of every table of employees of the Register of Deeds, the petitioner asserts that no conceivable wrong could have been committed therein, as it was the normal practice for employees to have such blank forms in hand, in preparation for their issuance after thorough examination of the propriety of documents submitted in support thereof) Issue: W/N the search warrant was valid. Held: The search warrant is void for lack of particularity. Requisites for issuing search warrant. - A search warrant shall not issue except upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the things to be seized which may be anywhere in the Philippines. The things to be seized must be described with particularity. Technical precision of description is not required. It is only necessary that there be reasonable particularity and certainty as to the identity of the property to be searched for and seized, so that the warrant shall not be a mere roving commission Indeed, the law does not require that the things to be seized must be described in precise and minute detail as to leave no room for doubt on the part of the searching authorities. If this were the rule, it would be virtually impossible for the applicants to obtain a warrant as they would not know exactly what kind of things to look forthe specific property to be searched for should be so particularly described as to preclude any possibility of seizing any other property the terms expressly used in the warrant were too all-embracing, with the obvious intent of subjecting all the records pertaining to all the transactions of the petitioners office at the Register of Deeds to search and seizure. Such tenor of a seizure warrant contravenes the explicit command of the Constitution that there be a particular description of the things to be seized The questioned warrant in this case is a scatter-shot warrant for having been issued for more than one offense - Falsification of Land Titles under Article 171 and Article 213 of the Revised Penal Code, and violation of Rep. Act No. 3019. A warrant must be issued upon probable cause in connection with one specific offense a careful perusal of the application for the warrant shows that the applicant did not allege any specific act performed by the petitioner constituting a violation of any of the aforementioned offenses. PEOPLE vs. ESTRADA Facts: Judge Estrada previously issued a search warrant for violation of RA No. 8203. As a consequence of the 52 boxes of drugs believed to be fake, misbranded or unregistered, were seized. However, it turned out that the warrant failed to satisfy the constitutional requirement of particular description of the place to be searched so that the judge quashed the warrant, which order was sustained by the Supreme Court. Considering that the drugs were found genuine, though illegally imported, and were seized under a void warrant, must they be returned to their owner? Held: No. even if the drugs seized were genuine and even if they contain the proper chemicals or ingredients for their production, if the seller has no permit from the proper government agency, they cannot be returned. It may be the burden of the party seeking the issuance of a warrant to convince the issuing magistrate that the probable exists and to procure the necessary evidence to show that the party against whom the warrant is directed is not duly authorized by the Bureau of Food and Drug. However, if there is an allegation that the possession of the drugs was illegal for lack of permit, the party seeking the return of the property must show the corresponding permit. The pharmaceutical genuineness of the medicines is not sufficient justification to demand its return. SONY COMPUTER vs. SUERGREEN

Compiled by: Thyrza Marbas/Percy Donalvo/Carrie Mae Bangayan

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

Facts: The case stemmed from the complaint filed with the National Bureau of Investigation (NBI) by petitioner Sony Computer Entertainment, Inc., against respondent Supergreen, Incorporated. The NBI found that respondent engaged in the reproduction and distribution of counterfeit "PlayStation" game software, consoles and accessories in violation of Sony Computer's intellectual property rights. Thus, NBI applied with the Regional Trial Court (RTC) of Manila, Branch 1 for warrants to search respondent's premises in Paraaque City and Cavite. On April 24, 2001, the RTC of Manila issued Search Warrants Nos. 01-1986 to 01-1988 covering respondent's premises at Trece-Tanza Road, Purok 7, Barangay de Ocampo, Trece Martires City, Cavite, and Search Warrants Nos. 01-1989 to 01-1991 covering respondent's premises at Room 302, 3rd Floor Chateau de Baie Condominium, 149 Roxas Boulevard corner Airport Road, Paraaque City. The NBI simultaneously served the search warrants on the subject premises and seized a replicating machine and several units of counterfeit "PlayStation" consoles, joy pads, housing, labels and game software. Respondent filed a motion to quash Search Warrants on the grounds that the search warrant failed to particularly describe the properties to be seized and impropriety of venue. The appellate court ruled that under Section 2, Rule 126 of the Rules of Court, the RTC of Manila had no jurisdiction to issue a search warrant enforceable in Cavite, and that lack of jurisdiction was not deemed waived. Issue: Was the search warrant valid Held: YES. In the present case, respondent's premises in Cavite, within the Fourth Judicial Region, is definitely beyond the territorial jurisdiction of the RTC of Manila, in the National Capital Region. Thus, the RTC of Manila does not have the authority to issue a search warrant for offenses committed in Cavite. Hence, petitioner's reliance in Malaloan is misplaced. Malaloan involved a court in the same judicial region where the crime was committed. The instant case involves a court in another region. Any other interpretation re-defining territorial jurisdiction would amount to judicial legislation. Nonetheless, we agree with petitioner that this case involves a transitory or continuing offense of unfair competition under Section 168 of Republic Act No. 8293. Respondent's imitation of the general appearance of petitioner's goods was done allegedly in Cavite. It sold the goods allegedly in Mandaluyong City, Metro Manila. The alleged acts would constitute a transitory or continuing offense. Thus, clearly, under Section 2 (b) of Rule 126, Section 168 of Rep. Act No. 8293 and Article 189 (1) of the Revised Penal Code, petitioner may apply for a search warrant in any court where any element of the alleged offense was committed, including any of the courts within the National Capital Region (Metro Manila). YAO, SR. vs. PEOPLE Facts: The Search Warrant in question commanded any peace officer to make an immediate search on MASAGANA compound located at Governors Drive, Barangay Lapidario, Trece Martires, Cavite City. The compound consisted of 10,000 square meters with several structures in it. Did the warrant satisfy the constitutional requirement of specific description of the place to be searched? HELD: Yes. It appears that the raiding team had ascertained and reached MASAGANA compound without difficulty since MASAGANA does not have any other offices/plants in Trece Martires, Cavite City. Moreover, Oblanca, who was with the raiding team, was already familiar with the MASAGANA compound as he and Alajar had monitored and conducted test-buys thereat. Even if there are several structures inside the compound, there was no need to particularize the areas to be searched because, these structures constitute the essential and necessary components of petitioners business and cannot be treated separately as they form part of one entire compound. The compound is owned and used solely by MASAGANA. What the case law merely requires is that the place to be searched can be distinguished in relation to the other places in the community. This requisite was complied with in the instant case. OUELAN vs. PEOPLE Facts: On 27 August 1996, a team from the Police Assistance and Reaction Against Crime (PARAC) of the Department of Interior and Local Government (DILG), was formed to implement a search warrant issued by the RTC of Manila on 26 August 1996 which warrant was issued against one Bernard Lim. In serving the warrant, the PARAC team accompanied by a Security Officer of the building where the premises to be searched was located. The warrant was served to Petitioner who was naked from the waist up when he opened the door.

Case Pool 4Manresa2009-2010

The search yielded three (3) pieces of transparent plastic sachets containing white crystalline substances, which were later confirmed by the National Bureau of Investigation (NBI) forensic chemist as shabu, plastic tubings, weighing scales, an improvised burner, and empty transparent plastic sachets. Petitioner assails the improper enforcement of the search warrant which eventually led to his arrest. He argued that the police operatives proceeded with the search though he, (Petitioner) was not the subject of such warrant. According to him, the warrant was invalidated when it was served against him and not to the person clearly indicated in the warrant. ISSUES: Whether the search warrant was properly enforced and whether petitioner was validly arrested without warrant. RULING: This argument is misplaced. Section 4, Rule 126 of the Revised Rules of Criminal Procedure provides for the requisites for the issuance of search warrant. Nowhere in said rule or any other provision in the Revised Rules of Criminal Procedure is it required that the search warrant must name the person who occupies the described premises. A cursory reading of the search warrant reveals that the police officers were ordered to make an immediate search of the premises mentioned and to seize and take possession of shabu. Furthermore, they were directed to bring persons to be dealt with as the law may direct. While petitioner may not be the person subject of the search, the fact that he was caught in flagrante delicto necessitated his valid warrantless arrest. Therefore, the fact that petitioners name was not indicated in the search warrant is immaterial. It is not required that the SW must name the person who occupies the described premises. Where the SW is issued for the search of specifically described premises only and not for the search of a person, the failure to name the owner or occupant such property in the affidavit and search does not invalidate the warrant; and where the name of the owner of the premises sought to be searched is incorrectly inserted in the SW, it is not a fatal defect if the legal description of the premises to be searched is otherwise correct so that no discretion is left to the will of the officer making the search as to the place to be searched. SANTOS vs. PRYCE GAS Facts: Respondent Pryce Gases, Inc. is a domestic corporation engaged in the manufacture of oxygen, acetylene and other industrial gases as well as in the distribution of LPG products in the Visayas and Mindanao regions. Its branch in Iloilo City has been selling LPG products directly or through various dealers to hospitals, restaurants and other business establishments. In the beginning of the year 2002, respondent noticed the decline in the return of its LPG cylinders for refilling. Respondents employees suspected that the LPG cylinders had been removed from market circulation and refilled by respondents competitors, one of whom was Sun Gas, Inc. Petitioner Rowland Kim Santos is the manager of Sun Gas, Inc. Arnold T. Figueroa, respondents sales manager, sought the assistance of the Criminal Investigation and Detection Group (CIDG) to recover the LPG cylinders allegedly in the possession of Sun Gas, Inc. Acting on Figueroas complaint, CIDG operatives conducted surveillance on the warehouse of Sun Gas, Inc. The CIDG operatives requested the Bureau of Fire Protection (BFP) to conduct a routine fire inspection at Sun Gas, Inc. warehouse with some of the CIDG operatives led by PO2 Vicente D. Demandara, Jr. posing as BFP inspectors. The CIDG operatives entered the warehouse and were able to take photographs of the LPG cylinders. On 4 June 2002, PO2 Vicente D. Demandara, Jr. applied before the RTC of Iloilo City for a warrant to search the premises described as No. 130, Timawa Avenue, Molo, Iloilo. The application alleged that petitioner was in possession of Pryce LPG tanks, the Pryce logos of some of which were scraped off and replaced with a Sun Gas, Inc. marking, and other materials used in tampering Pryce gas tanks. It also averred that petitioner was illegally distributing Pryce LPG products without the consent of respondent, in violation of Section 2 of Republic Act (R.A.) No. 623, as amended by R.A. No. 5700. After conducting searching questions on witnesses PO1 Aldrin Ligan, a CIDG operative, and Richard Oliveros, an employee of Pryce Gases, Inc., Hon. Rene B. Honrado, the presiding judge of Branch 29, issued the corresponding search warrant. The search warrant authorized the seizure of the following items: 1. Assorted sizes of PRYCE LPG GAS TANKS CYLINDERS in different kilograms.

Compiled by: Thyrza Marbas/Percy Donalvo/Carrie Mae Bangayan

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

2. Suspected LPG gas tanks cylinders with printed/mark SUN GAS INC., trademark and embossed Pryce Gas Trademark scrapped off. 3. Other materials used in tampering the PRYCE LPG GAS TANKS cylinders. wOn 7 June 2002, petitioner filed a Motion to Quash the search warrant on the grounds of lack of probable cause as well as deception and fraud employed in obtaining evidence in support of the application therefor, in violation of Article III, Section 2 of the Constitution and Rule 126, Sections 4 and 5 of the Rules of Court. Respondent opposed petitioners Motion to Quash. On the same day, the CIDG filed a criminal complaint before the Office of the City Prosecutor of Iloilo against petitioner, charging the latter with violation of R.A. No. 623, as amended. After hearing, the trial court issued an Order, granting petitioners Motion to Quash. The trial court upheld the validity of the surveillance conducted on petitioners warehouse in order to obtain evidence to support the application for a search warrant and declared that based on the evidence gathered in support of the application for search warrant, the CIDG was able to establish probable cause that petitioner was tampering with Pryce LPG cylinders and making them appear to be those of Sun Gas, Inc. This conclusion, notwithstanding, the trial court made a turnaround, stating that the probable cause as found by it at the time of the application for search warrant fell short of the requisite probable cause necessary to sustain the validity of the search warrant. Respondent filed a manifestation and motion to hold in abeyance the release of the seized items. Respondent elevated the matter to the Court of Appeals via a special civil action for certiorari, arguing that the trial court committed grave abuse of discretion in quashing the search warrant. The petition essentially questioned the quashal of the search warrant despite a prior finding of probable cause and the failure of petitioner to prove that he bought the seized items from respondent. It also challenged petitioners personality to file the motion to quash. (Krisna Caballero)

Case Pool 4Manresa2009-2010

Hon Ne Chan Vs. Honda FACTS - On 14 November 2003, the National Bureau of Investigation (NBI), through Special Investigator (SI) Glenn Lacaran, applied for search warrants with the RTC against petitioners for alleged violation of Section 168 in relation to Section 170 of Republic Act No. 8293 or the Intellectual Property Code of the Philippines. On the same date, RTC Judge Artemio S. Tipon issued two search warrants. The first warrant, Search Warrant No. 03-4438, was directed against petitioner Hon Ne Chan and John Does, operating under the name and style Dragon Spirit Motorcycle Center, located at No. 192 M.H. del Pilar Street corner 10 Avenue, Grace Park, Caloocan City, Metro Manila. On the other hand, the second search warrant, or Search Warrant No. 03-4439 was issued against petitioner Yunji Zeng and John Does, operating under the name and style Dragon Spirit Motorcycle Center, located at No. 192 E. Delos Santos Avenue, Caloocan City, Metro Manila. On the strength of these search warrants, NBI agents conducted a search of petitioners premises and seized items. On 1 December 2003, petitioners filed with the RTC a Joint Motion to Quash Search Warrants and to Return Illegally Seized Items, averring therein that the search warrants were issued despite the absence of probable cause and that they were in the nature of general search warrants. Respondents filed their Opposition thereto on 7 January 2004 but despite this, the trial court still issued an Order dated 20 February 2004 which quashed both Search Warrants No. 03-4438 and 03-4439 and ordered the NBI to return to petitioners the articles seized. In quashing the search warrants, the trial court held that the return of the twenty-two WAVE CX 110 motorcycle units was proper for they were never specifically mentioned therein. As regards the rest of the items seized by the NBI agents, the trial court decreed that their return to petitioners was justified due to lack of probable cause in the issuance of the search warrants. ISSUE - We are primarily tasked to resolve the questions of: 1) whether probable cause existed in the issuance of the subject search warrants; 2) whether said search warrants were in the nature of general search warrants and therefore null and void; and 3) whether there existed an offense to which the issuance of the search warrants was connected. RULINGS - We affirm the Decision of the Court of Appeals. Thus, the validity of the issuance of a search warrant rests upon the following factors: (1) it must be issued upon probable cause; (2) the probable cause must be determined by the judge himself and not by the applicant or any other person; (3) in the determination of probable cause, the judge must examine, under oath or affirmation, the complainant and such witnesses as the latter may produce; and (4) the warrant issued must particularly describe the place to be searched and persons or things to be seized. In this case, petitioners argue that the requirements enumerated in Rule 126 of the Rules of Court pertaining to the issuance of a search warrant were not fulfilled when Search Warrants No. 03-4438 and 03-4439 were issued by the trial court. First, they contend that no probable cause existed meriting the issuance of the search warrants in that it was stated in the Application for Search Warrant of National Bureau of Investigation Special Investigator (NBI SI) Lacaran that (h)e has information and verily believes that (petitioners) are in possession or has in their control properties which are being sold, retailed, distributed, imported, dealt with or otherwise disposed of, or intended to be used as a means of committing a violation of Section 168 in relation to Section 170 of Republic Act No. 8293 otherwise known as the Intellectual Property Code of the Philippines Said statement, petitioners insist, failed to meet the condition that probable cause must be shown to be within the personal knowledge of the complainant or the witnesses he may produce and not based on mere hearsay. It is settled that in determining probable cause, a judge is duty-bound to personally examine under oath the complainant and the witnesses he may present. Emphasis must be laid on the fact that the oath required must refer to the truth of the facts within the personal knowledge of the petitioner or his witnesses, because the purpose thereof is to convince the committing magistrate, not the individual making the affidavit and seeking the issuance of the warrant, of the existence of probable cause. Search warrants are not issued on loose, vague or doubtful basis of fact, or on mere suspicion or belief. In the case at bar, petitioners capitalize on the first paragraph of the Application for Search Warrant executed by NBI SI Lacaran to support their argument that he lacked the personal

Supporting jurisprudence thus outlined the following requisites for a search warrants validity, the absence of even one will cause its downright nullification: (1) it must be issued upon probable cause; (2) the probable cause must be determined by the judge himself and not by the applicant or any other person; (3) in the determination of probable cause, the judge must examine, under oath or affirmation, the complainant and such witnesses as the latter may produce; and (4) the warrant issued must particularly describe the place to be searched and persons or things to be seized.

The instant controversy pertains only to the existence of probable cause, which the trial court found wanting after evaluating the items seized from petitioner. Petitioner does not dispute that the items seized from him, consisting of Pryce LPG tanks of assorted weights, were particularly enumerated in the search warrant. Petitioner is neither assailing the manner by which the trial court conducted the determination of probable cause. The trial court retracted its earlier finding of probable cause because the seized items were incomplete or insufficient to charge petitioner with a criminal offense, thus, negating its previous determination of probable cause. We disagree. In quashing the search warrant, it would appear that the trial court had raised the standard of probable cause to whether there was sufficient cause to hold petitioner for trial. In so doing, the trial court committed grave abuse of discretion.

Probable cause for a search warrant is defined as such facts and circumstances which would lead a reasonably discrete and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place sought to be searched. A finding of probable cause needs only to rest on evidence showing that, more likely than not, a crime has been committed and that it was committed by the accused. Probable cause demands more than bare suspicion; it requires less than evidence which would justify conviction. The existence depends to a large degree upon the finding or opinion of the judge conducting the examination. However, the findings of the judge should not disregard the facts before him nor run counter to the clear dictates of reason.ch

Compiled by: Thyrza Marbas/Percy Donalvo/Carrie Mae Bangayan

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

knowledge required by both the Rules of Court and by jurisprudence. However, the very next paragraph of the application reveals the tremulous nature of their argument for it is clearly stated therein that far from merely relying on mere information and belief, NBI SI Lacaran personally verified the report and found [it] to be a fact. This, to our mind, removed the basis of his application from mere hearsay and supported the earlier finding of probable cause on the part of the examining judge. We cannot, thus, agree in his Order of 20 February 2004 quashing the search warrants he earlier issued on 14 November 2003. It is likewise well to reiterate here that probable cause, as far as the issuance of a search warrant is concerned, has been uniformly defined as such facts and circumstances which would lead a reasonable, discreet and prudent man to believe that an offense has been committed, and that the objects sought in connection with the offense are in the place sought to be searched. Equally important is our declaration in Microsoft Corporation and Lotus Development Corporation v. Maxicorp, Inc. that The determination of probable cause does not call for the application of rules and standards of proof that a judgment of conviction requires after trial on the merits. As implied by the words themselves, probable cause is concerned with probability, not absolute or even moral certainty. The prosecution need not present at this stage reasonable doubt. The standards of judgment are those of a reasonably prudent man, not the exacting calibrations of a judge after a full-blown trial. Petitioners also argue that the search warrants in question partook the nature of general search warrants in that they included motorcycles bearing the model name WAVE. They insist that word WAVE is generic and that it fails to pass the requirement of particularity of the items to be seized. They also maintain that had the word WAVE been enough, there would have been no need for petitioners to state in their application for search warrants the specific motorcycle models, i.e., DSM WAVE, DSM SUPERWAVE 110, and WAVE R 125. It is elemental that in order to be valid, a search warrant must particularly describe the place to be searched and the things to be seized. The constitutional requirement of reasonable particularity of description of the things to be seized is primarily meant to enable the law enforcers serving the warrant to: (1) readily identify the properties to be seized and thus prevent them from seizing the wrong items; and (2) leave said peace officers with no discretion regarding the articles to be seized and thus prevent unreasonable searches and seizures. It is not, however, required that the things to be seized must be described in precise and minute detail as to leave no room for doubt on the part of the searching authorities. In Bache and Co. (Phil.), Inc. v. Judge Ruiz, it was pointed out that one of the tests to determine the particularity in the description of objects to be seized under a search warrant is when the things described are limited to those which bear direct relation to the offense for which the warrant is being issued. A reading of the search warrants issued by the trial court in this case reveals that the items to be seized, including motorcycles, are those which are connected with the alleged violation of Section 168 in relation to Section 170 of Republic Act No. 8293, notwithstanding the use of the generic word WAVE. We, therefore, adopt the following finding of the appellate court: We may say this of the Wave motorcycles. It is evident that Wave is the model name of the motorcycles produced by the (herein respondents) Honda and, therefore, any imitation unit that is in the possession of the (herein petitioners) and carries the name Wave is the fit object of the warrants whether some other name or figure is affixed to it or not. The name Wave CX 110 is but a [species] of units under the generic name Wave. The warrant that directs the seizure of Wave logically includes Wave CX 110 and is by no means converted into a roving commission when it allows the officer to seize it. Anent petitioners contention that the search warrants were issued in relation to no particular offense. On the other hand, in the Application for Search Warrant filed by NBI SI Lacaran, it is clearly stated that what respondents are complaining about was the alleged violation of the goodwill they have established with respect to their motorcycle models WAVE 110 S and WAVE 125 S and which goodwill is entitled to protection in the same manner as other property rights. It is quite obvious then that their cause of action arose out of the intrusion into their established goodwill involving the two motorcycle models and not patent infringement, as what existed in Savage. 2. VALID INSTANCES WARRANT;ESS SEARCHES AND SEIZURES (A.) SEARCH OF MOVING VEHICLES OF

Case Pool 4Manresa2009-2010

Aniag Vs. Comelec FACTS - In preparation for the synchronized national and local elections scheduled on 11 May 1992, the Commission on Elections (COMELEC) issued on 11 December 1991 Resolution No. 2323 otherwise referred to as the "Gun Ban," promulgating rules and regulations on bearing, carrying and transporting of firearms or other deadly weapons, on security personnel or bodyguards, on bearing arms by members of security agencies or police organizations, and organization or maintenance of reaction forces during the election period. 1 Subsequently, on 26 December 1991 COMELEC issued Resolution No. 2327 providing for the summary disqualification of candidates engaged in gunrunning, using and transporting of firearms, organizing special strike forces, and establishing spot checkpoints. 2 On 10 January 1992, pursuant to the "Gun Ban," Mr. Serapio P. Taccad, Sergeant-at-Arms, House of Representatives, wrote petitioner who was then Congressman of the 1st District of Bulacan requesting the return of the two (2) firearms 3 issued to him by the House of Representatives. Upon being advised of the request on 13 January 1992 by his staff, petitioner immediately instructed his driver, Ernesto Arellano, to pick up the firearms from petitioner's house at Valle Verde and return them to Congress. Meanwhile, at about five o'clock in the afternoon of the same day, the Philippine National Police (PNP) headed by Senior Superintendent Danilo Cordero set up a checkpoint outside the Batasan Complex some twenty (20) meters away from its entrance. About thirty minutes later, the policemen manning the outpost flagged down the car driven by Arellano as it approached the checkpoint. They searched the car and found the firearms neatly packed in their gun cases and placed in a bag in the trunk of the car. Arellano was then apprehended and detained. He explained that he was ordered by petitioner to get the firearms from the house and return them to Sergeant-at-Arms Taccad of the House of Representatives. Thereafter, the police referred Arellano's case to the Office of the City Prosecutor for inquest. The referral did not include petitioner as among those charged with an election offense. On 15 January 1992, the City Prosecutor ordered the release of Arellano after finding the latter's sworn explanation meritorious. ISSUE - whether he can be validly prosecuted for instructing his driver to return to the Sergeant-at-Arms of the House of Representatives the two firearms issued to him on the basis of the evidence gathered from the warrantless search of his car. RLUINGS - As a rule, a valid search must be authorized by a search warrant duly issued by an appropriate authority. However, this is not absolute. Aside from a search incident to a lawful arrest, a warrantless search had been upheld in cases of moving vehicles and the seizure of evidence in plain view, 17 as well as the search conducted at police or military checkpoints which we declared are not illegal per se, and stressed that the warrantless search is not violative of the Constitution for as long as the vehicle is neither searched nor its occupants subjected to a body search, and the inspection of the vehicle is merely limited to a visual search. Petitioner contends that the guns were not tucked in Arellano's waist nor placed within his reach, and that they were neatly packed in gun cases and placed inside a bag at the back of the car. Significantly, COMELEC did not rebut this claim. The records do not show that the manner by which the package was bundled led the PNP to suspect that it contained firearms. There was no mention either of any report regarding any nervous, suspicious or unnatural reaction from Arellano when the car was stopped and searched. Given these circumstances and relying on its visual observation, the PNP could not thoroughly search the car lawfully as well as the package without violating the constitutional injunction. An extensive search without warrant could only be resorted to if the officers conducting the search had reasonable or probable cause to believe before the search that either the motorist was a law offender or that they would find the instrumentality or evidence pertaining to the commission of a crime in the vehicle to be searched. The existence of probable cause justifying the warrantless search is determined by the facts of each case. Thus, we upheld the validity of the warrantless search in situations where the smell of marijuana emanated from a plastic bag owned by the accused, or where the accused was acting suspiciously, and attempted to flee. In the case at bench, we find that the checkpoint was set up twenty (20) meters from the entrance to the Batasan Complex to enforce Resolution No. 2327. There was no evidence to show that the policemen were impelled to do so because of a confidential report leading them to reasonably believe that certain motorists matching

Compiled by: Thyrza Marbas/Percy Donalvo/Carrie Mae Bangayan

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

the description furnished by their informant were engaged in gunrunning, transporting firearms or in organizing special strike forces. Nor, as adverted to earlier, was there any indication from the package or behavior of Arellano that could have triggered the suspicion of the policemen. Absent such justifying circumstances specifically pointing to the culpability of petitioner and Arellano, the search could not be valid. The action then of the policemen unreasonably intruded into petitioner's privacy and the security of his property, in violation of Sec. 2, Art. III, of the Constitution. Consequently, the firearms obtained in violation of petitioner's right against warrantless search cannot be admitted for any purpose in any proceeding. It may be argued that the seeming acquiescence of Arellano to the search constitutes an implied waiver of petitioner's right to question the reasonableness of the search of the vehicle and the seizure of the firearms. While Resolution No. 2327 authorized the setting up of checkpoints, it however stressed that "guidelines shall be made to ensure that no infringement of civil and political rights results from the implementation of this authority," and that "the places and manner of setting up of checkpoints shall be determined in consultation with the Committee on Firearms Ban and Security Personnel created under Sec. 5, Resolution No. 2323." 28 The facts show that PNP installed the checkpoint at about five o'clock in the afternoon of 13 January 1992. The search was made soon thereafter, or thirty minutes later. It was not shown that news of impending checkpoints without necessarily giving their locations, and the reason for the same have been announced in the media to forewarn the citizens. Nor did the informal checkpoint that afternoon carry signs informing the public of the purpose of its operation. As a result, motorists passing that place did not have any inkling whatsoever about the reason behind the instant exercise. With the authorities in control to stop and search passing vehicles, the motorists did not have any choice but to submit to the PNP's scrutiny. Otherwise, any attempt to turnabout albeit innocent would raise suspicion and provide probable cause for the police to arrest the motorist and to conduct an extensive search of his vehicle. In the case of petitioner, only his driver was at the car at that time it was stopped for inspection. As conceded by COMELEC, driver Arellano did not know the purpose of the checkpoint. In the face of fourteen (14) armed policemen conducting the operation, 29 driver Arellano being alone and a mere employee of petitioner could not have marshalled the strength and the courage to protest against the extensive search conducted in the vehicle. In such scenario, the "implied acquiescence," if there was any, could not be more than a mere passive conformity on Arellano's part to the search, and "consent" given under intimidating or coercive circumstances is no consent within the purview of the constitutional guaranty. People v. Gonzales FACTS - The police received an information that a woman with long hair, wearing maong pants and jacket, and Ray Ban sunglasses would be transporting marijuana along the national highway. According to the information, the woman would bring a black traveling bag and would ride a trisikad. Based on this information, policemen were sent to the area. They found the woman, ordered her to open the black bag, which she refused. The police opened it and found marijuana. ISSUE Whether the marijuana is admissible as evidence. RULINGS - Yes. The arrest was legal and the search of her bag justified. The police had no time to obtain a warrant since they were tipped off only in the evening and the contraband would be transported early in the morning of the following day. The law enforcers had a definite target of the arrest. There was a description of the identity of the person engaged in transporting prohibited drugs at a particular place and time. Accordingly, when they saw accused who fitted the description they had probable cause to apprehend her. Basic is the rule that no arrest, search or seizure can be made without a valid warrant issued by a competent judicial authority. The Constitution guarantees the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures. Any evidence obtained in violation of said right shall be inadmissible for any purpose in any proceeding. Nevertheless, the constitutional proscription against warrantless searches and seizures admits of certain legal and judicial exceptions, as follows: (1) warrantless search incidental to a lawful arrest recognized under Section 12, Rule 126 of the Rules of Court and by prevailing jurisprudence; (2) seizure of evidence in plain view; (3) search of a moving vehicle; (4) consented warrantless search; (5) customs search; (6) stop and frisk; and (7) exigent and emergency circumstances.

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Moreover, a lawful arrest without a warrant may be made by a peace officer or a private person under the following circumstances: a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has just been committed, and he has probable cause to believe based on personal knowledge of facts and circumstances 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 is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with Section 7 of Rule 112. In this case, the trial court found and held that appellant was caught in flagrante carrying marijuana leaves and fruiting tops at the time of her arrest. A crime was actually being committed by the appellant; thus, her arrest and the search of her black traveling bag fall squarely under paragraph (a) of the aforecited provisions of the Rules allowing a warrantless search incident to lawful arrest. On this score, we are in agreement with the trial court. While it is true that the apprehending officers were not armed with a search warrant when the search was conducted over the personal effects of appellant, nevertheless under the circumstances of the case, there was sufficient probable cause for said police officers to believe that appellant was then and there committing a crime. Probable cause signifies a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious mans belief that the person accused is guilty of the offense with which he is charged; or the existence of such facts and circumstances which could lead a reasonably discreet and prudent man to believe that an offense has been committed and that the items, articles or objects sought in connection with said offense or subject to seizure and destruction by law is in the place to be searched. The required probable cause that will justify a warrantless search and seizure is not determined by a fixed formula but is resolved according to the facts of each case. In the case at bar, the police officers were tipped off only on the evening of August 29, 1993. The contraband was to be transported early in the morning of the following day. Certainly, the law enforcers had no time to secure the needed warrants. The only recourse left to the police was to arrest the courier in flagrante. Note that the law enforcers had a definite target for their arrest, that is, a woman with long hair, wearing maong pants and jacket and Ray Ban sunglasses, carrying a black traveling bag. There was a description about the identity of the person engaged in transporting prohibited drugs at a particular time and place. The law enforcers already had an inkling of the personal circumstances of the person they were looking for. Accordingly, when the police officers saw the woman who fitted the tipped description given earlier and who was later identified as the appellant, standing near a trisikad, along the national highway holding the handle of a black traveling bag on a trisikad, they had probable cause to apprehend appellant. In our view, appellants arrest was legal and the search of her bag conducted by the police was not illegal. Consequently, the marijuana bricks seized from appellant during the search is admissible in evidence against her since they were taken incidental to a lawful arrest. People v. Vinecario FACTS - On the night of April 10, 1995, policemen were manning a checkpoint at Ulas, Davao City, to enforce the COMELEC gun ban when a Honda TMX motorcycle boarded by three men sped by past them. A police officer blew his whistle and ordered them to return to the check point which they obliged. One of the men introduced himself as a soldier but he could not produce an identification card. Another one carried a backpack and when he was asked about its contents he replied that it merely contained a mat. The men passed the bag to each other. Suspecting that it contained a bomb, a policeman ordered them to open the bag. It contained marijuana. ISSUE - Wheter the search was lawful. RULINGS - Yes. Although the general rule is that motorists and their vehicles as well as pedestrians passing through checkpoints may only be subjected to a routine inspection, vehicles may be stopped and extensively searched when there is probable cause which justifies a reasonable belief of the men at the checkpoints that either the motorist is a law offender or the contents of the vehicle are or have been instruments of some offense.

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

Probable cause has been defined as such facts and circumstances which could lead a reasonable, discreet and prudent man to believe that an offense has been committed, and that the objects sought in connection with the offense are in the place sought to be searched. The required probable cause that will justify a warrantless search and seizure is not detemined by any fixed formula but is resolved according to the facts of each case. Warrantless search of the personal effects of an accused has been declared by this Court as valid, because of existence of probable cause, where the smell of marijuana emanated from a plastic bag owned by the accused, or where the accused was acting suspiciously, and attempted to flee. There is probable cause which justified the warrantless search. In light of appellants speeding away after noticing the checkpoint and even after having been flagged down by police officers, their suspicious and nervous gestures when interrogated on the contents of the backpack which they passed to one another, and the reply of one of them that he was a member of the Philippine Army, apparently in an attempt to dissuade the policemen from proceeding with their inspection, there existed probable cause to justify a reasonable belief on the part of the law enforcers that appellants were offenders of the law or that the contents of the back pack were instruments of some offense. Epie Vs. Ulat-Marredo FACTS - The evidence for the prosecution shows that at around 2:30 p.m. of September 6, 1998, SPO2 Alberto Ngina of the Philippine National Police (PNP) Tublay Station received an information from a confidential agent that a jeepney with Plate No. AYB 117 at Km. 96, Atok, Benguet was loaded with Benguet pine lumber. SPO2 Ngina immediately relayed the information to SPO4 Rentao Quitoriano and SPO1 Domingo Pulig. They then swiftly established a checkpoint in Acop, Tublay, Benguet. At around 4:00 p.m. of the same day, the PNP operatives spotted the jeepney heading toward La Trinidad. They flagged it down but it did not stop. Hence, they chased the vehicle up to Shilan, La Trinidad where it finally halted. The police saw five persons inside the jeepney then loaded with assorted vegetables, like womboc3 and chili. When SPO4 Quitoriano lifted a womboc, he found some pieces of lumber under it. The driver and his companions admitted they have no permit to transport the lumber. The police immediately arrested and investigated petitioners, Marso Insiong Dumpit, Armando Palasi, and Ben Arinos. Only petitioners were charged with violation of Section 68 of the Revised Forestry Code. After the prosecution presented its evidence, petitioners, through counsel, filed a "Motion to Suppress Evidence of the Prosecution" on the ground that the pieces of Benguet pine lumber were illegally seized. ISSUE - whether the police officers have a probable cause to believe that the subject vehicle was loaded with illegal cargo and that, therefore, it can be stopped and searched without a warrant. RULINGS - In this jurisdiction, the fundamental law of the land recognizes and protects the right of a person to privacy against unreasonable intrusions by the agents of the State. This right to undisturbed privacy is guaranteed by Section 2, Article III of the Constitution which provides: The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. Section 3(2), also of Article III, provides that any evidence obtained in violation of the above provision shall be inadmissible for any purpose in any proceeding. Hence, as a general rule, a search and seizure must be carried through with judicial warrant, otherwise, such search and seizure constitutes derogation of a constitutional right. The above rule, however, is not devoid of exceptions. Here, the search involved a moving vehicle, an instance where a warrantless search and seizure may be conducted by peace officers. The only issue we should determine is whether there was probable cause to justify such warrantless search and seizure. We recall that at around 2:30 p.m. of September 6, 1998, a confidential informer disclosed to SPO2 Ngina that a passenger

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jeepney with Plate No. AYB 117 loaded with Benguet pine lumber was at Km. 96, Atok, Benguet. The lumber was covered with assorted vegetables. A PNP roadblock was then placed in Acop, Tublay, Benguet to intercept the jeepney. At around 4:00 p.m. of that same day, the police spotted the vehicle. They flagged it down but it did not stop, forcing the police to chase it until it reached Shilan, La Trinidad. A search of the vehicle disclosed several pieces of Benguet pine lumber. Petitioners could not produce the required DENR permit to cut and transport the same. In People v. Vinecarao, we ruled that where a vehicle sped away after noticing a checkpoint and even after having been flagged down by police officers, in an apparent attempt to dissuade the police from proceeding with their inspection, there exists probable cause to justify a reasonable belief on the part of the law enforcers that the persons on board said vehicle were officers of the law or that the vehicle contained objects which were instruments of some offense. This ruling squarely applies to the present case. Verily, the Court of Appeals did not err in holding that respondent judge did not commit grave abuse of discretion amounting to lack or excess of jurisdiction when she ruled that the warrantless search is valid and that the lumber seized is admissible in evidence against petitioners. People Vs. Tuason Facts: In the morning of 7 March 1999, the Antipolo City Police Station received through telephone, a confidential information that a Gemini car bearing plate number PFC 4116 would deliver an unspecified amount of shabu in Marville Subdivision, Antipolo City. Acting on said tip, Antipolo City Chief of Police Major Rene Quintana dispatched a team of policemen to the area to conduct a surveillance. When the team arrived in Marville Subdivision, they saw the said Gemini car and immediately flagged it down. The driver of the car pulled to a stop and opened a window of said vehicle giving the policemen the opportunity to identify themselves as members of the Antipolo City Police Station. It was then that PO1 Manuel Padlan (PO1 Padlan) saw a gun tucked on appellants waist. PO1 Padlan inquired about the gun and appellant allegedly replied it did not belong to him nor could he produce any pertinent document relating to said firearm. This prompted PO3 Bueno to order appellant to get down from the car. As soon as appellant stepped down from the vehicle, PO3 Bueno saw five plastic sachets on the drivers seat, the contents of which appellant allegedly admitted to be shabu. Appellant was thereafter immediately brought to the police station. Issue: Whether or not the search is valid.

Ruling: In Caballes v. Court of Appeals,34 the term "probable cause" was explained to mean [A] reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious mans belief that the person accused is guilty of the offense with which he is charged; or the existence of such facts and circumstances which could lead a reasonably discreet and prudent man to believe that an offense has been committed and that the items, articles or objects sought in connection with said offense or subject to seizure and destruction by law is in the place to be searched. The required probable cause that will justify a warrantless search and seizure is not determined by a fixed formula but is resolved according to the facts of the case. When a vehicle is flagged down and subjected to an extensive search, such a warrantless search has been held to be valid as long as the officers conducting the search have reasonable or probable cause to believe prior to the search that they would find the instrumentality or evidence pertaining to a crime, in the vehicle to be searched. In this case, we hold that the police had probable cause to effect the warrantless search of the Gemini car driven by appellant. A confidential informer tipped them off that said car was going to deliver shabu at Marville Subdivision. Pursuing said lead, the Antipolo City police sent a team to Marville Subdivision to monitor said vehicle. The information provided by the informer turned out to be correct as, indeed, the Gemini car was spotted in the place where it was said to be bringing shabu. When they stopped the car, they saw a gun tucked in appellants waist. Appellant did not have any document to support his possession of said firearm which all the more strengthened the polices suspicion. After he was told to step out of the car, they found on the drivers seat plastic sachets containing white powdery substance. These circumstances, taken together, are sufficient to establish probable cause for the warrantless search of the Gemini car and the eventual admission into evidence of the plastic packets against appellant.

(B.) SEARCH ARREST

INCIDENT

TO

VALID

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

People vs Sarap FACTS - In the course of implementing a search warrant for possession of marijuana, the police arrested three women. During their investigation, the police learned that accused was the supplier of the marijuana and that she would be back two days later. Accordingly, on the date mentioned, policemen went to the house where accused was expected. When they arrived, they saw accused walking in the alley near the house. The police blocked her path and seized from her a green bag which contained marijuana. ISSUE Whether the evidence is admissible RULINGS - No. In the instant case, Sarap cannot be said to be committing a crime. Neither was she about to commit one nor had she just committed a crime. She was merely walking in the alley near the house of Conrado Ricaforte. It was only when Janet Iguiz led Sarap downstairs and identified her as Melly that she was singled out as the suspect. Guarino would not have apprehended Sarap were it not for Janet Iguizs identification. Moreover, the evidence on record clearly illustrated that it was only after Janet Iguiz pointed to Sarap as Melly that Guarino suspected that the bag she was holding contained marijuana. The Banga Police could have secured a search warrant when Jonalyn Duran disclosed during the investigation that a certain Melly of Capiz and one Roger would be back on March 4, 1996. The persons intended to be searched had been particularized and the thing to be seized specified. The time was also sufficiently ascertained to be March 4, 1996, although it was uncertain whether Melly would arrive. "Melly" turned out to be accused-appellant21 and the thing to be seized was marijuana. The above particulars would have provided sufficient grounds to secure a search warrant, instead, the police only acted when the caretaker of the house of Conrado Ricaforte informed them that there were strangers looking for Jonalyn and Joysie Duran. Hence, they cannot now dispense with the requirement of a search warrant on the basis of urgency in effecting it, considering that they had twenty-four hours to do so. The apprehending officers had prior knowledge of Saraps alleged activities. Verily, there was no excuse for the Banga Police not to secure a search warrant. Hence, the Banga Police could not effect a warrantless search and seizure since there was no probable cause and Sarap was not lawfully arrested. The law requires that the search must be incidental to a lawful arrest in order that the search itself may likewise be considered legal. People v. Laguio, Jr., FACTS - Due to an information from a person arrested for selling illegal drugs that accused was his employer, the police sought accused. The operative saw him came out of his apartment going towards a parked BMW car. On nearing the car, thee police officers approached accused, introduced themselves to him, asked his name and, upon hearing that he was Lawrence Wang, immediately frisked him and asked him to open the back compartment of the BMW car. When frisked, the police found inside the front right pocket of Wang an unlicensed pistol. At the same time, the other members of the operatives searched the BMW car and found inside it 29.2941 kilograms of methamphetamine hydrochloride. ISSUE - Was the search and seizure lawful? RULINGS - Section 5, above, provides three (3) instances when warrantless arrest may be lawfully effected: (a) arrest of a suspect in flagrante delicto; (b) arrest of a suspect where, based on personal knowledge of the arresting officer, there is probable cause that said suspect was the author of a crime which had just been committed; (c) arrest of a prisoner who has escaped from custody serving final judgment or temporarily confined while his case is pending. For a warrantless arrest of an accused caught in flagrante delicto under paragraph (a) of Section 5 to be valid, two requisites must concur: (1) the person to be arrested must execute an overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime; and (2) such overt act is done in the presence or within the view of the arresting officer. The facts and circumstances surrounding the present case did not manifest any suspicious behavior on the part of private respondent Lawrence Wang that would reasonably invite the attention of the police. He was merely walking from the Maria Orosa Apartment and was about to enter the parked BMW car when the police operatives arrested him, frisked and searched his person and commanded him to open the compartment of the car, which was later on found to be owned by his friend, David Lee. He was not committing any visible offense then. Therefore, there can be no valid warrantless arrest in flagrante delicto under paragraph (a) of Section 5. It is settled that Facts:

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"reliable information" alone, absent any overt act indicative of a felonious enterprise in the presence and within the view of the arresting officers, is not sufficient to constitute probable cause that would justify an in flagrante delicto arrest. Neither may the warrantless arrest be justified under paragraph (b) of Section 5. What is clearly established from the testimonies of the arresting officers is that Wang was arrested mainly on the information that he was the employer of Redentor Teck and Joseph Junio who were previously arrested and charged for illegal transport of shabu. Teck and Junio did not even categorically identify Wang to be their source of the shabu they were caught with in flagrante delicto. Upon the duos declaration that there will be a delivery of shabu on the early morning of the following day, May 17, which is only a few hours thereafter, and that Wang may be found in Maria Orosa Apartment along Maria Orosa Street, the arresting officers conducted "surveillance" operation in front of said apartment, hoping to find a person which will match the description of one Lawrence Wang, the employer of Teck and Junio. These circumstances do not sufficiently establish the existence of probable cause based on personal knowledge as required in paragraph (b) of Section 5. For a warrantless arrest of a person in flagrante delicto under paragraph (a) of Section 5 to be valid, two requisites must concur: (1) the person to be arrested must execute an overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime; and (2) such overt act is done in the presence or within the view of the arresting officer. The facts and circumstances surrounding this case did not manifest any suspicious behavior on the part of Wang that would reasonably invite the attention of the police. He was merely walking from the apartment and was about to enter the parked BMW car when the police operatives arrested him, frisked and searched his person and commanded him to open the compartment of the car, which was later on found to be owned by his friend, David Lee. He was not committing any visible offense then. Therefore, there can be no valid warrantless arrest in flagrante delicto under paragraph (a) of Section 5. It is settled that reliable information alone, absent any overt act indicative of a felonious enterprise in the presence and within the view of the arresting officers, is not sufficient to constitute probable cause that would justify an in flagrante delicto arrest. Consequently, the search that followed was also illegal. (Gil Ciudadano) People v. Bohol 560 SCRA 232 July 28, 2008

A confidential informant came to the police station and tipped P/Sr. Insp. Jessie Nitullano that a certain Ricardo Bohol is engaged in illegal drug trade in Tondo, Manila. P/Sr. Insp. Nitullano launched then and there a buy-bust entrapment of Bohol. PO2 Ferdinand Estrada was assigned to act as poseur buyer, and he was provided with a marked P100-bill as buy-bust money. PO2 Estrada proceeded to the house of Bohol and told Bohol of their purpose. Bohol asked, How much? to which PO2 Estrada replied, Piso lang (meaning P100 worth of shabu) and handed to the former the marked P100-bill. In turn, Bohol gave PO2 Estrada the shabu. Bohol was arrested and recovered from him the buy-bust money and the shabu. RTC convicted accused for the charges. Since one of the penalties imposed by the trial court is life imprisonment, the cases were forwarded to CA for automatic review.CA denied appeal. Issue:W/N SEARCH AND ARREST WAS ILLEGAL WHEN ACCUSED CLAIMED THAT HE WAS PEACEFULLY SLEEPING WHEN ARRESTED WITHOUT A WARRANT AND NOT INCIDENTAL TO ALAWFUL WARRANTLESS ARREST.HENCE THE SHABU WAS INADMISSIBLE. Ruling: NO. Legal.The arrest of Bohol is legal. The Constitution proscribes unreasonable arrests and provides in the Bill of Rights that no arrest, search and seizure can be made without a valid warrant issued by competent judicial authority. However, it is a settled exception to the rule that an arrest made after an entrapment operation does not require a warrant. Such warrantless arrest is considered reasonable and valid under Rule 113, Section 5(a) of the Revised Rules on Criminal Procedure, which states:Sec. 5. Arrest without warrant; when lawful.A peace officer or a private person may, without a warrant, arrest a person:(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;x x x In the present case, the arresting officers were justified in arresting Bohol as he had just committed a crime when he sold the shabu to PO2 Estrada. A buy-bust operation is a form of entrapment which has repeatedly been accepted to be a valid means of arresting violators of the Dangerous Drugs Law. Considering the legality of Bohols warrantless arrest, the subsequent warrantless search

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

that resulted in the seizure of the shabu found in his person is likewise valid. The constitutional proscription against warrantless searches and seizures admits of certain exceptions. This Court has ruled that the following instances constitute valid warrantless searches and seizures: (1) search incident to a lawful arrest; (2) search of a moving motor vehicle; (3) search in violation of customs laws; (4) seizure of the evidence in plain view; (5) search when the accused himself waives his right against unreasonable searches and seizures; (6) stop and frisk; and (7) exigent and emergency circumstances. People v. Dumangay 566 SCRA 290 G.R. No. 173483 September 23, 2008 Facts: An informant reported to the office of MADAC Cluster 3 that a certain Merlie, was engaged in selling shabu at the corner of Makati City. Acting on the report, MADAC conducted a buy-bust operation with Barbosa as the poseur-buyer. They found Merlie in front of her house and with the informant, Barbosa approached Merlie. The informant introduced Barbosa as a buyer of shabu, Merlies possession and informed Merlie the cause of her arrest and apprised her of her constitutional rights. Merlie denied the allegations of the prosecution. The trial court found the evidence of the prosecution sufficient to prove Merlies guilt. Merlie appealed. Ca affir00med Issue: Whether or not appellant is guilty beyond reasonable doubt of violating Rep. Act No. 9165. Ruling:YES.We are convinced that appellant is guilty beyond reasonable doubt. The elements of illegal sale of shabu are: (1) the identity of the buyer and the seller, the object and the consideration; and (2) the delivery of the thing sold and the payment therefor. What is material is the proof that the transaction or sale transpired, coupled with the presentation in court of the corpus delicti. Corpus delicti is the body or substance of the crime, and establishes the fact that a crime has been actually committed. It has two elements, namely: (1) proof of the occurrence of a certain event; and (2) some persons criminal responsibility for the act.The straightforward testimony of Barbosa, the poseur-buyer, clearly established that an illegal sale of shabu actually took place and that appellant was the seller. The prosecution clearly and positively established that Merlie agreed to sell shabu to the poseur-buyer and that the sale was consummatedWe disagree with appellants contention that inconsistencies in Barbosas testimony are adequate to demolish the credibility of Barbosa. The inconsistencies alluded to by the appellant in the testimony of Barbosa are inconsequential and minor to adversely affect his credibility. The inconsistencies do not detract from the fact that Barbosa positively identified her in open court. What is essential is that the prosecution witness positively identified the appellant as the one who sold the shabu to the poseur-buyer. There is also nothing on record that sufficiently casts doubt on the credibility of the prosecution witness. More so, the lack of prior surveillance does not cast doubt on Barbosas credibility. We have held that a prior surveillance is not necessary especially where the police operatives are accompanied by their informant during entrapment, as in this case. Contrary to appellants contention, the informant was present during the entrapment. Unless there is clear and convincing evidence that the members of the buy-bust team were inspired by any improper motive or were not properly performing their duty, their testimony on the operation deserves faith and credit. Lastly, considering that the buy-bust operation in this case is legitimate, the subsequent warrantless arrest and the warrantless search and seizure are equally valid. In People v. Julian-Fernandez, we held that the interdiction against warrantless searches and seizures is not absolute and such warrantless searches and seizures have long been deemed permissible by jurisprudence in instances such as the search incidental to a lawful arrest. This includes a valid warrantless arrest, for, while as a rule, an arrest is considered legitimate if effected with a valid warrant of arrest, the Rules of Court recognize an arrest in flagrante delicto as a permissible warrantless arrest. In this case, we find that the appellant, having failed to controvert the evidence that the other two plastic sachets of shabu were found in her possession, is also guilty beyond reasonable doubt of illegal possession of shabu. People v. Agulay 566 SCRA 571 G.R. No. 181747 September 26, 2008 Facts: An informant arrived at Police Station and reported to the Chief of the Station Drug Enforcement Unit (SDEU) that a certain Sing had been selling shabu at Brgy. Sta. Lucia, in Novaliches, Quezon City. A police entrapment team was formed. PO2 Herrera was assigned as poseur-buyer and was given a P100.00 bill, which he marked. PO2 Herrera bought shabu using the marked P100.00 bill. Sing gave a small plastic sachet to PO2 Herrera who, thereafter, scratched his head as a signal. The other police companions of PO2 Herrera, who were deployed nearby, then rushed to the crime scene. The defense, on the other hand, had an entirely different version of what transpired that night. The RTC found accused-appellant guilty of the offense charged, and meted out to him the penalty of Life Imprisonment.

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Accused-appellant filed his Notice of Appeal with Motion to Litigate as Pauper Litigant. CA affirmed. Issue: WHETHER OR NOT THE TRIAL COURT GRAVELY ERRED IN NOT FINDING THAT THE ACCUSED-APPELLANT WAS ILLEGALLY ARRESTED AND AS SUCH, THE SACHETS OF SHABU ALLEGEDLY RECOVERED FROM HIM ARE INADMISSIBLE IN EVIDENCE. Ruling: NO.This Court finds no justification to deviate from the lower courts findings and conclusion that accused-appellant was arrested in flagrante delicto selling shabu. In order to successfully prosecute an accused for illegal sale of drugs, the prosecution must be able to prove the following elements: (1) identities of the buyer and seller, the object, and the consideration; and(2) the delivery of the thing sold and the payment therefor.The testimonies of the prosecution witnesses proved that all the elements of the crime have been established: that the buy-bust operation took place, and that the shabu subject of the sale was brought to and identified in court. Moreover, PO2 Herrera, the poseur-buyer, positively identified accused-appellant as the person who sold to him the sachet containing the crystalline substance which was confirmed to be shabu. It is a well-established rule that an arrest made after an entrapment operation does not require a warrant inasmuch as it is considered a valid warrantless arrest, in line with the provisions of Rule 113, Section 5(a) of the Revised Rules of Court. A buy-bust operation is a form of entrapment which in recent years has been accepted as a valid and effective mode of apprehending drug pushers. In a buy-bust operation, the idea to commit a crime originates from the offender, without anybody inducing or prodding him to commit the offense. If carried out with due regard for constitutional and legal safeguards, a buy-bust operation deserves judicial sanction. There are eight (8) instances when a warrantless search and seizure is valid, to wit:(1) consented searches; (2) as an incident to a lawful arrest; (3) searches of vessels and aircraft for violation of immigration, customs, and drug laws; (4) searches of moving vehicles; (5) searches of automobiles at borders or constructive borders; (6) where the prohibited articles are in plain view; (7) searches of buildings and premises to enforce fire, sanitary, and building regulations; and (8) stop and frisk operations.Considering that the legitimacy of the buy-bust operation is beyond question, the subsequent warrantless arrest and warrantless search and seizure, were permissible. The search, clearly being incident to a lawful arrest, needed no warrant for its validity. Thus, contrary to accusedappellant's contention, the contraband seized from him, having been obtained as a result of the buy-bust operation to which the defense failed to impute any irregularity, was correctly admitted in evidence. The prosecutions failure to submit in evidence the required physical inventory and photograph of the evidence confiscated will not discharge accused-appellant from his crime. Non-compliance with said section is not fatal and will not render an accuseds arrest illegal or the items seized/confiscated from him inadmissible. In People v. Del Monte, this Court held that what is of utmost importance is the preservation of the integrity and the evidentiary value of the seized items, as the same would be utilized in the determination of the guilt or innocence of the accused. In the instant case, we find the integrity of the drugs seized intact, and there is no doubt that the three sachets of drugs seized from accused-appellant were the same ones examined for chemical analysis, and that the crystalline substance contained therein was later on determined to be positive for methylamphetamine hydrochloride (shabu). Accused-appellants allegation that he is a victim of a frame-up, which has been held as a shop-worn defense of those accused in drug-related cases, is viewed by the Court with disfavor. Like the defense of alibi, frame-up is an allegation that can easily be concocted. For this claim to prosper, the defense must adduce clear and convincing evidence to overcome the presumption of regularity of official acts of government officials. Absent any proof of motive to falsely accuse him of such a grave offense, the presumption of regularity in the performance of official duty and the findings of the trial court with respect to the credibility of witnesses shall prevail over that of the accused-appellant. Apart from his defense that he is a victim of a frame-up and extortion by the police officers, accusedappellant could not present any other viable defense. Again, while the presumption of regularity in the performance of official duty by law enforcement agents should not by itself prevail over the presumption of innocence, for the claim of frame-up to prosper, the defense must be able to present clear and convincing evidence to overcome this presumption of regularity. Finally, the testimony of accused-appellants brother, having been given by a relative of the accused-appellant, his testimony should be received with caution.On this premise, this Court has laid down the objective test in scrutinizing buy-bust operations. In People v. Doria, we said:We therefore stress that the objective test in buy-bust operations demands that the details of the purported

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transaction must be clearly and adequately shown. This must start from the initial contact between the poseur-buyer and the pusher, the offer to purchase, the promise or payment of the consideration until the consummation of the sale by the delivery of the illegal drug subject of the sale. The manner by which the initial contact was made, whether or not through an informant, the offer to purchase the drug, the payment of the buy-bust money, and the delivery of the illegal drug, whether to the informant alone or the police officer, must be the subject of strict scrutiny by courts to insure that law-abiding citizens are not unlawfully induced to commit an offense. x x x. Ching v. People 569 S 711 G.R. No. 177237 October 17, 2008 Facts: Police Chief Leonardo Suan was in his office at Camp Crame when he received information from a confidential informant about a drug deal to be consummated by the latter with petitioner Ching. Police Chief Suan immediately assembled a team to conduct a buybust operation. The team on board three vehicles proceeded to the vicinity of the target area, a gasoline station in Binondo, Manila. The confidential informant walked towards San Fernando Street. When the informant returned, he was accompanied by Ching who was carrying with him a green bag bearing the name Prudential Bank. The confidential informant introduced SPO1 Cadoy to Ching and told the latter that the former wanted to buy shabu. Ching handed the green bag to SPO1 Cadoy saying Ito na ang tatlong kilo. As soon as the money was in Chings possession, his team arrested William Ching and retrieved from Ching the marked money. During the custodial investigation, the arresting officers prepared the Affidavit of Arrest, Booking Sheet and Arrest Report, Request for Laboratory Examination, Request for Physical/Medical Examination and Referral to the Inquest Prosecutor. The defense, on the other hand, put up the defense of denial and frame up. The RTC rendered a decision convicting Ching of the crime charged and sentenced him to reclusion perpetua. This time the RTC did not appreciate the presence of recidivism since the same was not alleged in the information. Dissatisfied, Ching directly elevated his conviction to this Court for review. This Court, however, referred the case to the Court of Appeals for intermediate review, conformably with the ruling in People v. Mateo.The Court of Appeals affirmed in toto the decision of the RTC. Issue:Whether search and the Arrest Was Illegal. Ruling:Ching faults the RTC and the Court of Appeals for not giving credence to his version of what happened on the day in question. He vigorously insists that on the day he was arrested, a group of men swooped down upon him and dragged him from his sisters apartment unit and took him to a vehicle where his captors demanded a huge amount of money from him, and after his refusal to heed to their demands, he was tortured and his captors planted evidence against him. Without the said buy-bust or entrapment operation, there was no valid basis for his warrantless arrest. Hence, the operatives violated his constitutional right against warrantless arrest. He also claims that the search done in the apartment unit was illegal since such was effected following an illegal arrest.The credibility of witnesses is a matter best examined by, and left to, the trial courts. The time-tested doctrine is that the matter of assigning values to declarations on the witness stand is best and most competently performed by the trial judge who, unlike appellate magistrates, can weigh such testimony in light of the declarants demeanor, conduct and position to discriminate between truth and falsehood. Thus, appellate courts will not disturb the credence. In the prosecution of sale of dangerous drugs, the concurrence of all the following elements must concur: (1) the identity of the buyer and the seller, the object, and consideration; and (2) the delivery of the thing sold and the payment therefor. What is material to the prosecution for illegal sale of dangerous drugs is the proof that the transaction or sale actually took place, coupled with the presentation in court of evidence of corpus delicti. In the instant case, all the elements of the crime have been sufficiently established by the prosecution. The witnesses for the prosecution were able to prove that the buy-bust operation indeed took place and the shabu subject of the sale was brought and duly identified in court. The poseur-buyer (SPO1 Cadoy) positively identified Ching as the one who sold to him the three plastic bags of shabu. SPO1 Cadoy straightforwardly narrated the circumstances leading to the consummation of the sale of illegal drugs and the arrest of Ching. Once again this Court stresses that a buy-bust operation is a legally effective and proven procedure, sanctioned by law at that, for apprehending drug peddlers and distributors. It is often utilized by law enforcers for the purpose of trapping and capturing lawbreakers in the execution of their nefarious activities. The defense of frame-up in drug cases requires strong and convincing evidence because of the presumption that the law enforcement agencies acted in the regular performance of their official Chings claim that his warrantless arrest was invalid is not meritorious. The rule is settled that an arrest made after an entrapment does not require a warrant inasmuch as it is considered a valid

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warrantless arrest pursuant to Rule 113, Section 5(a) of the Rules of Court 47 ;This interdiction against warrantless searches and seizures, however, is not absolute and such warrantless searches and seizures have long been deemed permissible by jurisprudence in instances of (1) search of moving vehicles, (2) seizure in plain view, (3) customs searches, (4) waiver or consented searches, (5) stop and frisk situations (Terry search), and search incidental to a lawful arrest. The last includes a valid warrantless arrest, for, while as a rule, an arrest is considered legitimate [if] effected with a valid warrant of arrest, the Rules of Court recognize permissible warrantless arrest, to wit: (1) arrest in flagrante delicto, (2) arrest effected in hot pursuit, and (3) arrest of escaped prisoners (Sharone Clapiz)

(C.) PLAIN VIEW

WHEN THNGS ARE SEIZED IN

G.R. No. 96177 January 27, 1993 PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs.MARI MUSA y HANTATALU, accused-appellant. Facts: At the trial, the prosecution presented three (3) witnesses, who acted as poseur-buyer in the buy-bust operation made against the appellant. Information received from civilian informer was that this Mari Musa was engaged in selling marijuana in said place. So they proceeded to the house of Mari Musa. Amado Ani was able to buy one newspaper-wrapped dried marijuana for P10.00. The next day, a buy-bust was planned. Convinced that the contents were marijuana, Ani walked back towards his companions and raised his right hand for the raid. The second time, Ani with the NARCOM team returned to Mari Musa's house, the woman, who was later known as Mari Musa's wife, slipped away from the house. Sgt. Belarga frisked Mari Musa but could not find the P20.00 marked money with him. Mari Musa was then asked where the P20.00 was and he told the NARCOM team he has given the money to his wife (who had slipped away). Mari Musa was then placed under arrest and brought to the NARCOM office. In this appeal, the appellant contends that his guilt was not proved beyond reasonable doubt and impugns the credibility of the prosecution witnesses. The appellant claims that the testimony of Sgt. Ani, the poseur-buyer, is not credible because: (1) prior to the buy-bust operation, neither Sgt. Ani nor the other NARCOM agents were personally known by the appellant or vice-versa; and (2) there was no witness to the alleged giving of the two wrappers of marijuana. Issue: Whether or not a policeman can distinguish between marijuana cigarette from ordinary ones by the type of rolling done on the cigarette sticks from a distance of 10-15 meters to be the basis of his conviction. Ruling: YES. The Court has held that what matters is not an existing familiarity between the buyer and the seller, for quite often, the parties to the transaction may be strangers, but their agreement and the acts constituting the sale and delivery of the marijuana. The place of the commission of the crime of selling prohibited drugs has been held to be not crucial and the presence of other people apart from the buyer and seller will not necessarily prevent the consummation of the illegal sale. People v. Ale does not apply here because the policeman in that case testified that he and his companion were certain that the appellant therein handed marijuana cigarettes to the poseur-buyer based on the appearance of the cigarette sticks. The Court rejected this claim, stating that: This Court cannot give full credit to the testimonies of the prosecution witnesses marked as they are with contradictions and tainted with inaccuracies.Bian testified that they were able to tell that the four cigarettes were marijuana cigarettes because according to him, the rolling of ordinary cigarettes are different from those of marijuana cigarettes. (tsn, November 13, 1984, p. 10).It is however, incredible to believe that they could discern the type of rolling done on those cigarettes from the distance where they were observing the alleged sale of more or less 10 to 15 meters. 21 In the case at bar, however, T/Sgt. Belarga did not positively claim that he saw the appellant hand over marijuana to Sgt. Ani. What he said was that there was an exchange of certain articles between the two. Contrary to the contention of the appellant, it was not impossible for T/Sgt. Belarga to have seen, from a distance of 90-100 meters, Sgt. Ani hand to the appellant "something" and for the latter to give

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to the former "something."Notwithstanding the fact that T/Sgt. Belarga could not have been certain that what Sgt. Ani received from the appellant was marijuana because of the distance, his testimony, nevertheless, corroborated the direct evidence, which the Court earlier ruled to be convincing, presented by Sgt. Ani on the following material points: (1) T/Sgt. Belarga instructed Sgt. Ani to conduct a surveillance and test-buy operation on the appellant at Suterville, Zamboanga City on December 13, 1989; 23 (2) later that same day, Sgt. Ani went back to their office and reported a successful operation and turned over to T/Sgt. Belarga one wrapper of marijuana; (3) T/Sgt. Belarga then organized a team to conduct a buy-bust operation the following day; (4) on December 14, 1989, T/Sgt. Belarga led a team of NARCOM agents who went to Suterville, Zamboanga City; (5) T/Sgt. Belarga gave a P20.00 marked bill to Sgt. Ani which was to be used in the buybust operation; (6) upon the arrival of the NARCOM agents in Suterville, Zamboanga City, Sgt. Ani proceeded to the house of the appellant while some agents stayed in the vehicles and others positioned themselves in strategic places; the appellant met Sgt. Ani and an exchange of articles took place. The corroborative testimony of T/Sgt. Belarga strengthens the direct evidence given by Sgt. Ani. Additionally, the Court has ruled that the fact that the police officers who accompanied the poseur-buyer were unable to see exactly what the appellant gave the poseur-buyer because of their distance or position will not be fatal to the prosecution's case provided there exists other evidence, direct or circumstantial, e.g., the testimony of the poseur-buyer, which is sufficient to prove the consummation of the sale of the prohibited drug.Furthermore, the Constitution, in conformity with the doctrine laid down in Stonehill v. Diokno, declares inadmissible, any evidence obtained in violation of the freedom from unreasonable searches and seizures. While a valid search warrant is generally necessary before a search and seizure may be effected, exceptions to this rule are recognized. Thus, in Alvero v. Dizon, the Court stated that. "[t]he most important exception to the necessity for a search warrant is the right of search and seizure as an incident to a lawful arrest." Rule 126, Section 12 of the Rules of Court expressly authorizes a warrantless search and seizure incident to a lawful arrest, thus: Sec. 12. Search incident to lawful arrest. A person lawfully arrested may be searched for dangerous weapons or anything which may be used as proof of the commission of an offense, without a search warrant. There is no doubt that the warrantless search incidental to a lawful arrest authorizes the arresting officer to make a search upon the person of the person arrested. As early as 1909, the Court has ruled that "[a]n officer making an arrest may take from the person arrested any money or property found upon his person which was used in the commission of the crime or was the fruit of the crime or which might furnish the prisoner with the means of committing violence or of escaping, or which may be used as evidence in the trial of the cause . . . " Hence, in a buy-bust operation conducted to entrap a drug-pusher, the law enforcement agents may seize the marked money found on the person of the pusher immediately after the arrest even without arrest and search warrants. In the case at bar, the NARCOM agents searched the person of the appellant after arresting him in his house but found nothing. They then searched the entire house and, in the kitchen, found and seized a plastic bag hanging in a corner. The warrantless search and seizure, as an incident to a suspect's lawful arrest, may extend beyond the person of the one arrested to include the premises or surroundings under his immediate control. Objects in the "plain view" of an officer who has the right to be in the position to have that view are subject to seizure and may be presented as evidence. In Ker v. California 42 police officers, without securing a search warrant but having information that the defendant husband was selling marijuana from his apartment, obtained from the building manager a passkey to defendants' apartment, and entered it. There they found the defendant husband in the living room. The defendant wife emerged from the kitchen, and one of the officers, after identifying himself, observed through the open doorway of the kitchen, a small scale atop the kitchen sink, upon which lay a brick-shaped package containing green leafy substance which he recognized as marijuana. The package of marijuana was used as evidence in prosecuting defendants for violation of the Narcotic Law. The admissibility of the package was challenged before the U.S. Supreme Court, which held, after observing that it was not unreasonable for the officer to walk to the doorway of the adjacent kitchen on seeing the defendant wife emerge therefrom, that "the discovery of the brick of marijuana did not constitute a search, since the officer merely saw what was placed before him in full view. The U.S. Supreme Court ruled that the warrantless seizure of the marijuana was legal on the basis of the "plain view" doctrine and upheld the admissibility of the seized drugs as part of the prosecution's evidence. The "plain view" doctrine may not, however, be used to launch unbridled searches and indiscriminate seizures nor to extend a general exploratory search made solely to find evidence of defendant's guilt.

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The "plain view" doctrine is usually applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object. Furthermore, the U.S. Supreme Court stated the following limitations on the application of the doctrine: What the "plain view" cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused and permits the warrantless seizure. Of course, the extension of the original justification is legitimate only where it is immediately apparent to the police that they have evidence before them; the "plain view" doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges. It has also been suggested that even if an object is observed in "plain view," the "plain view" doctrine will not justify the seizure of the object where the incriminating nature of the object is not apparent from the "plain view" of the object. Stated differently, it must be immediately apparent to the police that the items that they observe may be evidence of a crime, contraband, or otherwise subject to seizure. In the instant case, the appellant was arrested and his person searched in the living room. Failing to retrieve the marked money which they hoped to find, the NARCOM agents searched the whole house and found the plastic bag in the kitchen. The plastic bag was, therefore, not within their "plain view" when they arrested the appellant as to justify its seizure. The NARCOM agents had to move from one portion of the house to another before they sighted the plastic bag. Unlike Ker vs. California, where the police officer had reason to walk to the doorway of the adjacent kitchen and from which position he saw the marijuana, the NARCOM agents in this case went from room to room with the obvious intention of fishing for more evidence. Moreover, when the NARCOM agents saw the plastic bag hanging in one corner of the kitchen, they had no clue as to its contents. They had to ask the appellant what the bag contained. When the appellant refused to respond, they opened it and found the marijuana. Unlike Ker v. California, where the marijuana was visible to the police officer's eyes, the NARCOM agents in this case could not have discovered the inculpatory nature of the contents of the bag had they not forcibly opened it. Even assuming then, that the NARCOM agents inadvertently came across the plastic bag because it was within their "plain view," what may be said to be the object in their "plain view" was just the plastic bag and not the marijuana. The incriminating nature of the contents of the plastic bag was not immediately apparent from the "plain view" of said object. It cannot be claimed that the plastic bag clearly betrayed its contents, whether by its distinctive configuration, its transprarency, or otherwise, that its contents are obvious to an observer. 48 We, therefore, hold that under the circumstances of the case, the "plain view" doctrine does not apply and the marijuana contained in the plastic bag was seized illegally and cannot be presented in evidence pursuant to Article III, Section 3(2) of the Constitution. The exclusion of this particular evidence does not, however, diminish, in any way, the damaging effect of the other pieces of evidence presented by the prosecution to prove that the appellant sold marijuana, in violation of Article II, Section 4 of the Dangerous Drugs Act of 1972. We hold that by virtue of the testimonies of Sgt. Ani and T/Sgt. Belarga and the two wrappings of marijuana sold by the appellant to Sgt. Ani, among other pieces of evidence, the guilt of the appellant of the crime charged has been proved beyond reasonable doubt. [Less abridged digest for a more comprehensive explanation on Plainview doctrine] [G.R. No. 142295. May 31, 2001]VICENTE DEL ROSARIO yNICOLAS, petitioner, vs. PEOPLE Facts: The police received a report that Vicente del Rosario was in possession of certain firearms without the necessary licenses. Acting upon the report, P/Sr. Insp. Edwin C. Roque of the PNP Firearms and Explosives Division issued a certification stating that the appellant is not a licensed/registered firearm holder of any kind and caliber. Armed with the said certification, P/Sr. Insp. Adique applied for a search warrant to enable his team to search the house of appellant. Upon arrival at the house of appellant, the police officers introduced themselves to the wife of appellant. Adique informed him that they had a search warrant and that they were authorized to search his house. The search yielded the following items: (a) a caliber .45 pistol with Serial No. 703792 with five magazines of caliber .45 found at the masters bedroom; (b) five magazines of 5.56 M-16 rifle and two radios found in the room of appellants daughter; and (c) a caliber .22 revolver with Serial No.

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

48673 containing 8 pieces of live ammunition found in the kitchen of the house. When asked about his license to possess the firearms, the appellant failed to produce any. This prompted the police officers to seize the subject firearms. For his defense, appellant contends that he had a license for the caliber .45 pistol recovered in his bedroom and that the other items seized during the search including the caliber . 22 revolver, were merely planted by the police officers. Appellant likewise assails the manner in which the search was carried and that the barangay officials arrived only after the police already had finished the search. RTC rendered judgment of conviction.CA affirmed. Petitioner submits that He also submits that he had a license for the . 45 caliber firearm and ammunition seized in his bedroom. The other firearm, a .22 caliber revolver seized in a drawer at the kitchen of his house, a magazine for 5.56 mm. cal. Armalite rifle, and two 2-way radios found in his daughters bedroom, were either planted by the police or illegally seized, as they were not mentioned in the search warrant. Issue: First: whether petitioner had a license for the .45 caliber Colt pistol and ammunition seized in his bedroom; and Second: whether the .22 caliber revolver seized in a drawer at the kitchen of his house, a magazine for 5.56 mm. cal. Armalite rifle and two 2-way radios found in his daughters bedroom, were planted by the police or were illegally seized. Ruling:First: The .45 cal. Colt pistol in question was duly licensed.Normally, we do not review the factual findings of the Court of Appeals and the trial courts. However, this case comes within the exceptions. The findings of fact by the Court of Appeals will not be disturbed by the Court unless these findings are not supported by evidence. In this case, the findings of the lower courts even directly contradict the evidence. Hence, we review the evidence. It is true that the court may rely on the certification of the Chief, Firearms and Explosives Division, PNP on the absence of a firearm license. However, such certification referred to another individual and thus, cannot prevail over a valid firearm license duly issued to petitioner. On the dorsal side of the printed computerized license, there is stamped the words Validity of computerized license is extended until renewed license is printed dated January 17, 1995, signed by Police Chief Inspector Franklin S. Alfabeto, Chief, Licence Branch, FEO. Coupled with this indefinite extension, petitioner paid the license fees for the As a senior police officer, Senior Inspector Adique could easily determine the genuineness and authenticity of the computerized printed license presented. He must know the computerized license printed form. The stamp is clearly visible. He could decipher the words and the signature of the authorized signing official of the Firearms and Explosives Division, PNP. He belonged to the same national police organization.Assuming that the license presented was expired during that period was not illegal. The firearm was kept at home, not carried outside residence,provided that the license had not been cancelled or revoked. According to firearm licensing regulations, the renewal of a firearm license was automatically applied for upon payment of the license fees for the renewal period. The expired license was not cancelled or revoked. It served as temporary authority to possess the firearm until the renewed license was issued. The license would be renewed, as it was, because petitioner still possessed the required qualifications. Meantime, the validity of the license was extended until the renewed computerized license was printed. To convict an accused for illegal possession of firearms and explosives under P. D. 1866, as amended, two (2) essential elements must be indubitably established, viz.: (a) the existence of the subject firearm or explosive which may be proved by the presentation of the subject firearm or explosive or by the testimony of witnesses who saw accused in possession of the same, and (b) the negative fact that the accused had no license or permit to own or possess the firearm or explosive which fact may be established by the testimony or certification of a representative of the PNP Firearms and Explosives Unit that the accused has no license or permit to possess the subject firearm or explosive. x x x We stress that the essence of the crime penalized under P. D. 1866 is primarily the accuseds lack of license or permit to carry or possess the firearm, ammunition or explosive as possession by itself is not prohibited by law. Second issue. The seizure of items not mentioned in the search warrant was illegal. With respect to the .22 caliber revolver with Serial No. 48673, that the police raiding team found in a drawer at the kitchen of petitioners house, suffice it to say that the firearm was not mentioned in the search warrant applied for and issued for the search of petitioners house. Section 2, Article III of the Constitution lays down the general rule that a search and seizure must be carried out through or on the strength of a judicial warrant, absent which such search and seizure becomes unreasonable within the meaning of said

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constitutional provision. Supporting jurisprudence thus outlined the following requisites for a search warrants validity, the absence of even one will cause its downright nullification: (1) it must be issued upon probable cause; (2) the probable cause must be determined by the judge himself and not by the applicant or any other person; (3) in the determination of probable cause, the judge must examine, under oath or affirmation, the complainant and such witnesses as the latter may produce; and (4) the warrant issued must particularly describe the place to be searched and persons or things to be seized. Seizure is limited to those items particularly described in a valid search warrant. Searching officers are without discretion regarding what articles they shall seize. Evidence seized on the occasion of such an unreasonable search and seizure is tainted and excluded for being the proverbial fruit of a poisonous tree. In the language of the fundamental law, it shall be inadmissible in evidence for any purpose in any proceeding. In this case, the firearm was not found inadvertently and in plain view. It was found as a result of a meticulous search in the kitchen of petitioners house. This firearm, to emphasize, was not mentioned in the search warrant. Hence, the seizure was illegal. The seizure without the requisite search warrant was in plain violation of the law and the Constitution. True that as an exception, the police may seize without warrant illegally possessed firearm or any contraband for that matter, inadvertently found in plain view. However, [t]he seizure of evidence in plain view applies only where the police officer is not searching for evidence against the accused, but inadvertently comes across an incriminating object. Specifically, seizure of evidence in plain view is justified when there is: (a) a prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties; (b) the evidence was inadvertently discovered by the police who had the right to be where they are; (c) the evidence must be immediately apparent, and (d) plain view justified mere seizure of evidence without further search. Hence, the petitioner rightly rejected the firearm as planted and not belonging to him. The prosecution was not able to prove that the firearm was in the effective possession or control of the petitioner without a license. In illegal possession of firearms, the possessor must know of the existence of the subject firearm in his possession or control. The same is true with respect to the 5.56 cal. magazine found in the bedroom of petitioners daughter. With particular reference to the two 2-way radios that the raiding policemen also seized in the bedroom of petitioners daughter, there was absolutely no reason for the seizure. The radios were not contraband per se. The National Telecommunications Commission may license two-way radios at its discretion. The burden is on the prosecution to show that the two-way radios were not licensed. Consequently, the confiscation of the two 2-way radios was clearly illegal. [G.R. No. 133265. May 29, 2002] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. QUE MINGKHA alias ALFONSO GO and KIM QUE YU alias ALFONSO QUE,accused-appellants.

Facts:From the prosecution evidence, it appears Central Police District, received a phone call from an informant that a blue Kia Pregio van which was being used in the transport of shabu has been seen within the vicinity of Barangay Holy Spirit, Quezon City. Dela Fuente immediately dispatched the three teams to monitor the van. Before reaching Commonwealth Avenue, in front of Andok's Litson Manok, the van hit a seven-year old boy. The van sped away, leaving its young victim behind. A concerned motorist picked up the boy and rushed him to the hospital. Espejon, in the meantime, reported to Dela Fuente that they have spotted the blue Kia van. They followed the van after it sped away and intercepted it at Commonwealth Avenue corner Zuzuarregui Street. The members of the team alighted from their vehicle and approached the van. They introduced themselves as police officers to the driver and passenger of the van. The police noted that Go was on the driver's seat while Que sat on the passenger's seat. Espejon informed Go that he just committed the crime of reckless imprudence and asked for his driver's license. The police peered through the window of the van and noticed several sacks placed on the floor at the back of the van. The sacks have Chinese markings and had a logo which looked like the head of a pig. One of the sacks was open and they noticed that it contained several plastic bags containing white crystalline substance. The police also asked for the identification of Go's

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companion. The latter handed his driver's license which revealed his name as Kim Que Yu. The police handcuffed Go and Que, confiscated their driver's license and their cellular phones found at the front seat of the van, and brought them to Police Station. Both Go and Que claim ignorance about the presence of shabu at the back of the van. Issue: Whether or not The lower court erred in not holding that the shabu was the product of illegal search and seizure, hence not admissible in evidence for any purpose in any proceeding. Ruling:YES. We reverse the decision of the trial court in so far as it found accused-appellant Que guilty of the charge. In People v. Pagaura we made the cautionary warning that the court must be extra vigilant in trying drug cases lest an innocent person is made to suffer the unusually heavy penalties for drug offenses x x x. In our criminal justice system the overriding consideration is not whether the court doubts the innocence of the accused but whether it entertains a reasonable doubt as to his guilt. x x x In the case at bar, no less than the Solicitor General himself entertains doubt on the guilt of Que and recommends his acquittal. When the prosecution itself says it failed to prove Ques guilt, the Court should listen and listen hard, lest it locks up a person who has done no wrong.We fully agree with the Solicitor General that persistent doubt exists on the full veracity of the prosecutions theory as regards his (Ques) participation in the crime. Eye contact with the evidence of the prosecution against Que will establish that it is incredible as it goes against the grain of our natural experience and expectation. Right from the start, the prosecution story cannot but raise the quizzical eyebrow. According to the story, five (5) days before the apprehension of the accused, the policemen had already gathered detailed data about the Kia Pregio van that would be used in moving a big quantity of shabu in Quezon City. They knew exactly its model, plate number, color, etc. Despite the wide time lead, the prosecution does not explain its failure to flush out the true owner of the van who could well be the drug lord in the case at bar. Certainly, it was not too difficult to discover his identity from the vans registration papers with the LTO and thereafter monitor the vehicles movement. Instead, the policemen meandered around the city, hoping they would encounter the van by chance. We cannot be made to believe that our policemen catch drug syndicates by using the calculus of chance.Equally unexplainable in the prosecution story is the reaction of the policemen when they spotted the van transporting the shabu which they have been hunting for five (5) days. They knew it was carrying shabu of big quantity. They ought to suspect that its passengers pose a clear danger to their lives. Yet, nothing in the records shows that PO1 Raul Espejon and PO3 Jesus Curameng called for reinforcement when they first saw the van. They just serenely tailed the van until it bumped an ice cream-on-sticks vendor. Again, such an act of throwing caution to the wind strains the seams of credibility of the policemen-witnesses. The Constitution proscribes search and seizure without a judicial warrant and any evidence obtained without such warrant is inadmissible for any purpose in any proceeding. The rule is, however, not absolute. Search and seizure may be made without a warrant and the evidence obtained therefrom may be admissible in the following instances: (1) search incident to a lawful arrest; (2) search of a moving motor vehicle; (3) search in violation of customs laws; (4) seizure of evidence in plain view; (5) when the accused himself waives his right against unreasonable searches and seizures. The search made in the case at bar falls under the fourth exception. We held in People vs. Doria:Objects falling in plain view of an officer who has a right to be in a position to have that view are subject to seizure even without a search warrant and may be introduced in evidence. The 'plain view' doctrine applies when the following requisites concur: (a) the law enforcement officer in search of the evidence has a prior justification for an intrusion or is in a position from which he can view a particular area; (b) the discovery of evidence in plain view is inadvertent; (c) it is immediately apparent to the officer that the item he observes may be evidence of a crime, contraband or otherwise subject to seizure. The law enforcement officer must lawfully make an initial intrusion or properly be in a position from which he can particularly view the area. In the course of such lawful intrusion, he came inadvertently across a piece of evidence incriminating the accused. The object must be open to eye and hand and its discovery inadvertent. The facts show that while the van was traversing Don Antonio Avenue in Quezon City, it accidentally hit a seven-year old ambulant vendor. The van stopped and the owner got off to bring the boy to the hospital. A police officer who witnessed the accident approached the van to apprehend the driver for reckless imprudence. As he stood near the van, he saw through the lightly tinted window of the van several sacks placed at the back of the van. One of the sacks was open,

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revealing several plastic bags containing white crystalline substance which the police suspected to be shabu. Clearly, the prohibited substance was within the plain view of the police officer who was in a position to be near the van at the time. The substance is therefore not a product of an illegal search and not inadmissible as evidence. The Court finds accused-appellant Que Ming Kha alias Alfonso Go GUILTY as charged.

(Sharone Clapiz)

ABENES VS. COURT OF APPEALS FACTS: Three days prior to the May 11, 1998 national and local elections, the Philippine National Police (PNP) of Pagadian City created a team with a directive to establish and man a checkpoint in Barangay Danlugan at said city, for the purpose of enforcing the Gun Ban. A red Tamaraw FX trying to pass through the check point was stopped by the team and directed to park at the side of the road. As the occupants within the vehicle could not be seen through its tinted windows, a member of the team, knocked on the vehicles window and requested the occupants to step down for a routine inspection. The eight occupants, which included the accused-appellant Rodolfo Abenes who is the Barangay Chairman of Tawagan Norte, Labangan, Zamboanga Del Sur, alighted from the vehicle. At this juncture, SPO1 Requejo and SPO3 Pascua noticed that a holstered firearm was tucked at the right waist of Abenes. The firearm was readily visible to the policemen; it was not covered by the shirt worn by Abenes. Abenes was then asked by SPO3 Pascua whether he had a license and authority to carry the firearm, and whether his possession was exempted from the Gun Ban being enforced by the COMELEC. Accused answered in the affirmative. The policemen then demanded for the pertinent documents to be shown to support Abenes claim. He could not show any. Hence, SPO1 Requejo confiscated Abenes firearm. A certification dated May 18, 1998 from the Firearms and Explosives License Processing Section of the PNP, Pagadian City disclosed that Abenes is not a registered nor a licensed firearm holder. RTC rendered its Decision convicting the petitioner for having been found in possession without license/permit of a Norinco .45 caliber pistol. The petitioner appealed to the CA claiming that the checkpoint was not shown to have been legally set up, and/or that the frisking of the petitioner who was ordered to alight from the Tamaraw FX, along with his companions in the vehicle, violated his constitutional right against unlawful search and seizure; and, that the trial court erred in believing the version of the incident as testified to by the policemen instead of the version presented by the defenses witness which is more consistent with truth and human experience. The CA affirmed the RTC Decision. ISSUES: 1. was the check-point validly established? 2. was the petitioners constitutional right against unlawful search and seizure violated? RULING:

1.

This Court uphold the validity of the checkpoint. The petitioner insists that the prosecution should have produced the mission order constituting the checkpoint, and invokes Aniag, Jr. v. Comelec,15 where the Court purportedly held that firearms seized from a motor vehicle without a warrant are inadmissible because there was no indication that would trigger any suspicion from the policemen nor any other circumstance showing probable cause.

We take judicial notice of the existence of the COMELEC resolution imposing a gun ban during the election period issued pursuant to Section 52(c) in relation to Section 26(q) of the Omnibus Election Code (Batas Pambansa Blg. 881). This Court has ruled that not all checkpoints are illegal. Those which are warranted by the exigencies of public order and are conducted in a way least intrusive to motorists are allowed. For, admittedly, routine checkpoints do intrude, to a certain extent, on motorists right to "free passage without interruption," but it cannot be denied that, as a rule, it involves only a brief detention of travelers during which the

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

vehicles occupants are required to answer a brief question or two. For as long as the vehicle is neither searched nor its occupants subjected to a body search, and the inspection of the vehicle is limited to a visual search, said routine checks cannot be regarded as violative of an individuals right against unreasonable search. In fact, these routine checks, when conducted in a fixed area, are even less intrusive. The checkpoint herein conducted was in pursuance of the gun ban enforced by the COMELEC. The COMELEC would be hard put to implement the ban if its deputized agents were limited to a visual search of pedestrians. It would also defeat the purpose for which such ban was instituted. Those who intend to bring a gun during said period would know that they only need a car to be able to easily perpetrate their malicious designs. 2. The facts adduced do not constitute a ground for a violation of the constitutional rights of the accused against illegal search and seizure. PO3 Suba admitted that they were merely stopping cars they deemed suspicious, such as those whose windows are heavily tinted just to see if the passengers thereof were carrying guns. At best they would merely direct their flashlights inside the cars they would stop, without opening the cars doors or subjecting its passengers to a body search. There is nothing discriminatory in this as this is what the situation demands. (Emphasis supplied) Under the plain view doctrine, objects falling in the "plain view" of an officer who has a right to be in the position to have that view are subject to seizure and may be presented as evidence.18 The "plain view" doctrine applies when the following requisites concur: (a) the law enforcement officer in search of the evidence has a prior justification for an intrusion or is in a position from which he can view a particular area; (b) the discovery of the evidence in plain view is inadvertent; and (c) it is immediately apparent to the officer that the item he observes may be evidence of a crime, contraband or otherwise subject to seizure. All the foregoing requirements are present in the instant case. The law enforcement officers lawfully made an initial intrusion because of the enforcement of the Gun Ban and were properly in a position from which they particularly viewed the area. In the course of such lawful intrusion, the policemen came inadvertently across a piece of evidence incriminating the petitioner where they saw the gun tucked into his waist. The gun was in plain view and discovered inadvertently when the petitioner alighted from the vehicle.

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The assailed search and seizure may still be justified as akin to stop and frisk situation whose object is either to determine the identity of a suspicious individual or to maintain the status quo momentarily while the police officer seeks to obtain more information. A police officer may approach a person for the purpose of investigating possible criminal behavior even though there is no probable cause to make an arrest. The search in the case at bar can be sustained under the foregoing exceptions, hence, the constitutional guarantee against unreasonable searches and seizure has not been violated. PEOPLE VS. MENGOTE FACTS: Accused-appellant Rogelio Mengote was convicted of illegal possession of firearms on the strength mainly of the stolen pistol found on his person at the moment of his warrantless arrest. In this appeal, he pleads that the weapon was not admissible as evidence against him because it had been illegally seized and was therefore the fruit of the poisonous tree. The Government disagrees. It insists that the revolver was validly received in evidence by the trial judge because its seizure was incidental to an arrest that was doubtless lawful even if admittedly without warrant. After the Western Police District received a telephone call from an informer that there were three suspicious-looking persons at the corner of Juan Luna and North Bay Boulevard in Tondo, Manila, a surveillance team of plainclothesmen was forthwith dispatched to the place. They there saw two men "looking from side to side," one of whom was holding his abdomen. They approached these persons and identified themselves as policemen, whereupon the two tried to run away but were unable to escape because the other lawmen had surrounded them. The suspects were then searched and found a gun as well as a fan knife. The weapons were taken from them. Mengote and Morellos were then turned over to police headquarters for investigation by the Intelligence Division. Information was filed against the accused-appellant for illlegal possesion of firearms. ISSUE: WON THE EVIDENCE OBTAINED IS ADMISSIBLE. RULING: NO! There is no question that evidence obtained as a result of an illegal search or seizure is inadmissible in any proceeding for any purpose. That is the absolute prohibition of Article III, Section 3(2), of the Constitution. This is the celebrated exclusionary rule based on the justification given by Judge Learned Hand that "only in case the prosecution, which itself controls the seizing officials, knows that it cannot profit by their wrong will the wrong be repressed." At the time of the arrest in question, the accused-appellant was merely "looking from side to side" and "holding his abdomen," according to the arresting officers themselves. There was apparently no offense that had just been committed or was being actually committed or at least being attempted by Mengote in their presence. What offense could possibly have been suggested by a person "looking from side to side" and "holding his abdomen" and in a place not exactly forsaken? These are certainly not sinister acts. And the setting of the arrest made them less so, if at all. It might have been different if Mengote had been apprehended at an ungodly hour and in a place where he had no reason to be, like a darkened alley at 3 o'clock in the morning. But he was arrested at 11:30 in the morning and in a crowded street shortly after alighting from a passenger jeep with his companion. He was not skulking in the shadows but walking in the clear light of day. There was nothing clandestine about his being on that street at that busy hour in the blaze of the noonday sun. On the other hand, there could have been a number of reasons, all of them innocent, why his eyes were darting from side to side and he was holding his abdomen. If they excited suspicion in the minds of the arresting officers, as the prosecution suggests, it has nevertheless not been shown what their suspicion was all about. In fact, the policemen themselves testified that they were dispatched to that place only because of the telephone call from the informer that there were "suspicious-looking" persons in that vicinity who were about to commit a robbery at North Bay Boulevard. The caller did not explain why he thought the men looked suspicious nor did he elaborate on the impending crime. PEOPLE VS. CHUA HO SAN FACTS: A taiwanese was arrested, he spoke no english. When his bag was searched, shabu was found. He was arrested at past midnight after the police was patrolling the night on reports of smuggling.

(D.) STOP AND FRISK

POSADAS VS. COURT OF APPEALS FACTS: On Oct 16, 1986, while in the premises of RMC, members of the Integrated National Police of Davao spotted petitioner, below 18 yrs old, carrying a buri bag and noticed him to be acting suspiciously. They approached the petitioner and identified themselves as members of the INP. Petitioner attempted to flee but his attempt was thwarted notwithstanding his resistance. They then checked the buri bag where they found firearm, ammunitions, and a smoke grenade. The petitioner failed to show the necessary license or authority to possess firearms and ammunitions. He was prosecuted for illegal possession of firearms and ammunitions and was found guilty. CA affrimed the decision. ISSUE: WON the warrantless search on the petitioner is valid. RULING: yes! Under the Rules of Court, a person lawfully arrested may be searched for dangerous weapons or anything used as proof of a commission of an offense without a search warrant. An arrest without a warrant may be effected by a peace officer or private person, among others, when in his presence the person to be arrested has committed, is actually committing, or is attempting to commit an offense; or when an offense has in fact just been committed, and he has personal knowledge of the facts indicating that the person to be arrested has committed it. At the time the peace officers in this case identified themselves and apprehended the petitioner as he attempted to flee, they did not know that he had committed, or was actually committing the offense of illegal possession of firearms and ammunitions. They just suspected that he was hiding something in the buri bag. Said cirmcumstances did not justify an arrest without a warrant. However, a reasonable search is not to be determined by any fixed formula but is to be resolved according to the facts of each case. 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 considering that unlike in the former, it was effected on the basis of probable cause. The probable cause is when the petitioner acted suspiciously and attempted to flee with the buri bag.

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

When they saw the boat about to dock, they went near and saw the said taiwanese. When they tried to approach him, he changed direction and tried to run. ISSUE: WAS THE EVIDENCE ADMISSSIBLE? RULING: NO! There was no probable cause. There was no report that a foreigner would disembark with prohibited drugs on that day. The fact that he looked unusual does not suggest that he was perpetrating an offense. The defense that he had no visa and that he was committing an offense was not immediately apparent. He was at first walking casually.

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seizure could not be construed as voluntary submission or an implied acquiescence to warrantless search and seizure especially so when members of the raiding team were intimidatingly numerous and heavily armed. (Cute Constantino) People v. Danilo Asis and Gilbert Formento GR. No. 142531 December 15, 2002 Facts: Both accused, who were deaf-mutes, were charged for a crime of robbery with homicide. They were charged on the basis that they were last seen to be with the victim the night the crime took place. During the course of the investigation, after the body of the victim was seen in the morning, police investigator received a phone call from a certain relative of the victim, that one of the suspects, Danilo Asis, went back to the scene of the crime. Accused Danilo Asis and Formento were arrested and were searched without a warrant. During the arrest, police investigators search the bag of Formento, which was allegedly surrendered by the wife of Formento, and found a short pants with a blood stain on it. According to the police investigator, during the course of their investigation, he noticed that there was a bloodstain in Asis T-Shirt. Also they presented as evidence the bloodstain of short pants recovered from the bag of Gilberto Formento. Also, the prosecution showed that the short pants recovered was owned by the victim. During the presentation of prosecution witness Dr. Bausa, they stipulated that the bloodstains found in the white t-shirt and in the short pants were human blood. RTC convicted them of the crime and ruled that although no witnesses to the actual killing and robbery were presented, the circumstantial evidence including the recovery of bloodstained clothing from both accused definitely proved that the 2 accused committed the crime. On automatic appeal, the accused questioned the validity of the search and seizure and they also questioned the admissibility of the presented evidence. The prosecution contends that it was the wife of appellant who voluntarily surrendered the bag that contained the bloodstained trousers of the victim. Her act, it claims, constituted a valid consent to the search without a warrant. Issue: WON there was there was a valid search and seizure and WON the evidence. Were admissible or was there a valid waiver of the constitutional right against unreasonable searches and seizures? Ruling: There was NO Valid Search and Seizure. To constitute a valid waiver, it must be shown that: first, the right exists; second, the person involved had knowledge, actual or constructive, of the existence of such a right; and third, the person had an actual intention to relinquish the right. How could Appellant Formento have consented to a warrantless search when, in the first place, he did not understand what was happening at that moment? The prosecution witnesses themselves testified that there was no interpreter to assist him -- a deaf-mute -during the arrest, search and seizure. Naturally, it would seem that he indeed consented to the warrantless search, as the prosecution would want this Court to believe. Verily, courts indulge every reasonable presumption against waiver of fundamental constitutional rights and x x x we do not presume acquiescence [to] the loss of fundamental rights. Neither can the OSG claim that appellants wife voluntarily surrendered the bag that contained the bloodstained trousers of the victim. As admitted by Prosecution Witness PO2 Pablo Ileto, the victims sister and appellants wife cannot understand each other. Eventually, appellants wife gave the belongings of Gilbert Formento where the bloodstained shorts of the victim were recovered. How can the surrender of appellants belongings in this case be voluntary, when the person surrendering them did not even understand the person she was communicating with? To be sure, the OSG cannot even use the argument that the search was made by a private individual, the victims sister, and thereby skirt the issue of constitutional protection against unlawful searches by the State. The victims sister herself testified against this argument.

(E.) EXPRESS WAIVER

VEROY VS. LAYAGUE FACTS: 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 old residence was left to 2 houseboys. The key to the masters bedroom as well as the keys to the childrens 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 the search warrant. Pet. Ma. Luisa was contacted by telephone to ask permission to search the house. She 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 Macasaet. The authority given by pet. Was relayed by Capt. Obrero to Major Macasaet who answered that pet. Has called him twice by telephone and that the permission was given on the condition that the search be conducted in his presence. The following day, the search was conducted pursuant to the authority granted by pet. The caretakers facilitated their entry into the yard, and using the key entrusted to one Edna Soguilon, they were able to gain entrance into the kitchen. A locksmith had to be employed to open the padlock of the door leading to the childrens room. Capt. Obrero recovered handgun, printed materials, etc. ISSUE: WON THE ARTICLES WERE ADMISSIBLE AS EVIDENCE. RULING: NO! Pet aver that while they concede that Capt. Obrero had permission from Ma. Luisa Veroy to break open the door of their residence, it was merely for the purpose of ascertaining thereat the presence of the alleged rebel soldiers. The permission did not include any authority to conduct a room to room search once inside the house. The constitution guarantees the right of the people to be secure in their persons, houses, papers, and efffects against unreasonable searches and seizures. However, the rule that searches and seizures must be supported by a valid warrant is not absolute. Among the recognized exceptions thereto are: 1. A search incidental to an arrest; 2. A search of a moving vehicle; and 3. Seizure of evidence in plain view. None of these exceptions pertains to the case at bar. The reason for searching the house of herein pet is that it was reportedly being used as a hideout and recruitment center for rebel soldiers. While Capt. Obrero was able to enter the compound, he did not enter the house because he did not have the search warrant and the owners were not present. This shows that he himself recognized the need for a search warrant that is why he contacted the Veroys to seek permisson to enter the same. Permission was indeed granted but only to ascertain the presence of rebel soldiers. Under the circumstances, it is undeniable that the police officers had ample time to procure a search warrant but did not. Hence, the rule having been violated and no exception being applicable, the articles seized were confiscated illegally and are therefore protected by the exclusionary principle. They cannot be used as evidence against the pet in the criminal action against them for illegal possession of firearms. PEOPLE VS. COMPACION FACTS: A confidential tip from a police informant was received that accused-appellant was growing and cultivating marijuana plants at its backyard. Police officers initially wanted to secure a search warrant but could not wait for one to be issued then went to the house of the accused at around 1:30 am. The accused let them enter without objection. ISSUE: WAS THERE A CONSENTED SEARCH? RULING: NO! Waiver must be made voluntarily, knowingly, and intelligently. Allowing the members of the military to enter the premises and his consequent silence during the unreasonable search and

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

People v. Nuevas, Din and Inocencio GR No. 170233 [2007] Facts: Accused were charged before the RTC with illegal possession of marijuana. PO3 Fami testified that he and SPO3 Cabiling conducted a stationary surveillance and monitoring of illegal drug trafficking along Perimeter Street, Barangay Pag-Asa, Olangapo City. They received information that a certain male person, more or less 54 in height, 25 to 30 years old, with a tattoo mark on the upper right hand, and usually wearing a sando and maong pants, would make a delivery of marijuana dried lives. While stationed thereat, they saw a male person fir the description, carrying a plastic bag, later identified as Nuevas, alight from motor vehicle. They accosted Nuevas and informed him that they are police officers. Later on, Nuevas voluntarily pointed to the police officers a plastic bag which, when opened, contained marijuana dried leaves and bricks wrapped in a blue cloth. Shortly, in his bid to escape charges, Nuevas disclosed where the two [2] other male persons would make the delivery of marijuana weighing more or less five [5] kilos. Fami and Cabling, together with Nuevas, then proceeded to Purok 12, Old Cabalan, Olongapo City, which according to Nuevas was where his two (2) companions, Din and Inocencio, could be located. From there, they saw and approached two (2) persons along the National Highway, introducing themselves as police officers. Din was carrying a light blue plastic bag. When asked, Din disclosed that the bag belonged to Nuevas. Fami then took the bag and upon inspection found inside it marijuana packed in newspaper and wrapped therein. After confiscating the items, Fami and Cabling brought Nuevas, Din and Inocencio to the police office at Purok III for proper documentation. Fami further testified that a receipt for the property seized was issued by Cabling and that a field test was duly conducted on the confiscated items. All three accused were likewise physically examined on the basis of which corresponding medical certificates were issued. The corresponding booking sheets and arrest report were also accomplished. Fami stated that he and Cabling executed a joint affidavit in connection with the arrest of all the accused and the confiscation of the items. Appellants maintain that there was no basis for their questioning and the subsequent inspection of the plastic bags of Nuevas and Din, as they were not doing anything illegal at the time. Issue: Was there a valid waiver of a constitutional right against unreasonable searches and seizure? Ruling: As to Nuevas, the Court held that there was a valid waiver made. However, as to Din and Inocencio, there was no valid waiver made. The constitutional immunity against unreasonable searches and seizures is a personal right which may be waived. However, it must be seen that the consent to the search was voluntary in order to validate an otherwise illegal detention and search, i.e., the consent was unequivocal, specific, and intelligently given, uncontaminated by any duress or coercion. The consent to a search is not to be lightly inferred, but must be shown by clear and convincing evidence. The question whether a consent to a search was in fact voluntary is a question of fact to be determined from the totality of all the circumstances. Relevant to this determination are the following characteristics of the person giving consent and the environment in which consent is given: (1) the age of the defendant; (2) whether he was in a public or secluded location; (3) whether he objected to the search or passively looked on; (4) the education and intelligence of the defendant; (5) the presence of coercive police procedures; (6) the defendant's belief that no incriminating evidence will be found; (7) the nature of the police questioning; (8) the environment in which the questioning took place; and (9) the possibly vulnerable subjective state of the person consenting. It is the State which has the burden of proving, by clear and positive testimony, that the necessary consent was obtained and that it was freely and voluntarily given.

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Facts: On December 9, 1998, Felipe A. Bartolome, District Collector of Customs of Cebu, issued a Warrant of Seizure and Detention of 25,000 bags of rice, bearing the name of "SNOWMAN, Milled in Palawan" shipped on board the M/V "Alberto," which was then docked at Pier 6 in Cebu City. The warrant was issued on the basis of the report of the Economic Intelligence and Investigation Bureau (EIIB), Region VII that the rice had been illegally imported. The report stated that the rice was landed in Palawan by a foreign vessel and then placed in sacks marked "SNOWMAN, Milled in Palawan." It was then shipped to Cebu City on board the vessel M/V "Alberto." Forfeiture proceedings were started in the customs office in Cebu, docketed as Cebu Seizure Identification Case No. 17-98. On December 10, 1998, respondent Mark Montelibano, the consignee of the sacks of rice, and his buyer, respondent Elson Ogario, filed a complaint for injunction (Civil Case No. CEB-23077) in the Regional Trial Court of Cebu City, alleging: xxxx That a Warrant of Seizure and detention issued by the Collector of Customs dated December 9, 1998 be quashed because the defendants act of seizing and detaining the herein-mentioned sacks of rice are illegal. The continuing act of detaining the hereinmentioned sacks of rice will lead to the deterioration of the same. That no public auction sale of the same should be conducted by the Bureau of Customs or any government agency Xxxxx RTC ruled in favor of Montelibano. Issue: Can the Bureau of Customs issue a Warrant of Seizure and Detention and does the RTC has jurisdiction to pass aupon the validity or regularity of Seizure and Forfeiture proceedings? Ruling: No. Citing the case of Jao v. CA, the Supreme Court ruled that: There is no question that Regional Trial Courts are devoid of any competence to pass upon the validity or regularity of seizure and forfeiture proceedings conducted by the Bureau of Customs and to enjoin or otherwise interfere with these proceedings. The Collector of Customs sitting in seizure and forfeiture proceedings has exclusive jurisdiction to hear and determine all questions touching on the seizure and forfeiture of dutiable goods. The Regional Trial Courts are precluded from assuming cognizance over such matters even through petitions of certiorari, prohibition or mandamus. It is likewise well-settled that the provisions of the Tariff and Customs Code and that of Republic Act No. 1125, as amended, otherwise known as "An Act Creating the Court of Tax Appeals," specify the proper fora and procedure for the ventilation of any legal objections or issues raised concerning these proceedings. Thus, actions of the Collector of Customs are appealable to the Commissioner of Customs, whose decision, in turn, is subject to the exclusive appellate jurisdiction of the Court of Tax Appeals and from there to the Court of Appeals. The rule that Regional Trial Courts have no review powers over such proceedings is anchored upon the policy of placing no unnecessary hindrance on the governments drive, not only to prevent smuggling and other frauds upon Customs, but more importantly, to render effective and efficient the collection of import and export duties due the State, which enables the government to carry out the functions it has been instituted to perform. Even if the seizure by the Collector of Customs were illegal, which has yet to be proven, we have said that such act does not deprive the Bureau of Customs of jurisdiction thereon. Felicisimo Rieta v. People of the Philippines GR NO. 147817 [2004] Chicot Doctirne Facts: On October 12, 1979, Col. Panfilo Lacson, the[n] Chief of the Police Intelligence Branch of the Metrocom Intelligence and Security Group (MISG for brevity), received information that certain syndicated groups were engaged in smuggling activities somewhere in Port Area, Manila. It was further revealed that the activities [were being] done at nighttime and the smuggled goods in a delivery panel and delivery truck [were] being escorted by some police and military personnel. He fielded three surveillance stake-out teams the following night along Roxas Boulevard and Bonifacio Drive near Del Pan Bridge, whereby they were to watch out for a cargo truck with Plate No. T-SY-167 bound for Malabon. Nothing came out of it. On the basis of his investigation, [it was discovered that] the truck was registered in the name of Teresita Estacio of Pasay City.

(F.)

SEARCH OF WAREHOUSE IN VIOLATION OF Customs & Tariffs Code

Bureau of Cutoms and The Economic Intelligence and Investigation Bureau v. Nelson Ogario and Mark Montelibano GR No. 138081 [2000]

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

At around 9:00 oclock in the evening of October 14, 1979, Col. Lacson and his men returned to the same area, with Col. Lacson posting himself at the immediate vicinity of the 2nd COSAC Detachment in Port Area, Manila, because as per information given to him, the said cargo truck will come out from the premises of the 2nd COSAC Detachment. COSAC stands for Constabulary Off-Shore Anti-Crime Battalion. The night watch lasted till the wee hours of the following morning. About 3:00 a.m. an Isuzu panel came out from the place of the 2nd COSAC Detachment. It returned before 4:00 a.m. of [the] same day. At around 5 minutes before 4:00 oclock that morning, a green cargo truck with Plate No. T-SY-167 came out from the 2nd COSAC Detachment followed and escorted closely by a light brown Toyota Corona car with Plate No. GR-433 and with 4 men on board. At that time, Lt. Col. Panfilo Lacson had no information whatsoever about the car, so he gave an order by radio to his men to intercept only the cargo truck. The cargo truck was intercepted. Col. Lacson noticed that the Toyota car following the cargo truck suddenly made a sharp U-turn towards the North, unlike the cargo truck [that] was going south. Almost by impulse, Col. Lacsons car also made a U-turn and gave chase to the speeding Toyota car, which was running between 100 KPH to 120 KPH. Col. Lacson sounded his siren. The chase lasted for less than 5 minutes until said car made a stop along Bonifacio Drive, at the foot of Del Pan Bridge. Col. Lacson and his men searched the car and they found several firearms, particularly: three (3) .45 cal. Pistols and one (1) armalite M-16 rifle. He also discovered that T/Sgt. Ernesto Miaco was the driver of the Toyota car, and his companions inside the car were Sgt. Guillermo Ferrer, Sgt. Fidel Balita and Sgt. Robartolo Alincastre, [all] belonging to the 2nd COSAC Detachment. They were found not to be equipped with mission orders. When the cargo truck with Plate No. T-SY-167 was searched, 305 cases of blue seal or untaxed cigarettes were found inside. The cargo truck driver known only as Boy was able to escape while the other passengers or riders of said truck were apprehended, namely: Police Sgt. Arturo Rimorin of Pasay City Police Force, Pat. Felicisimo Rieta of Kawit Police Force, and Gonzalo Vargas, a civilian. x x x xxx xxx Lacsons men hauled the intercepted vehicles, the arrested men and confiscated goods to Camp Crame, Quezon City. All the 371 cases (305 + 66) of blue seal cigarettes were turned over to the Bureau of Customs. Sgt. Bienvenido Balaba executed an Affidavit of Arrest together with Arnel Acuba. The Booking and Information Sheet of Ernesto de Castro showed that he was arrested by the MISG after delivering assorted blue seal cigarettes at 185 Sanciangco St., Tonsuya, Malabon. Issue: Validity of the Search and Seizure Petitioner contends that his arrest by virtue of Arrest Search and Seizure Order (ASSO) No. 4754 was invalid, as the law upon which it was predicated -- General Order No. 60, issued by then President Ferdinand E. Marcos -- was subsequently declared by the Court, in Taada v. Tuvera, to have no force and effect. Thus, he asserts, any evidence obtained pursuant thereto is inadmissible in evidence. Ruling: We do not agree. In Taada, the Court addressed the possible effects of its declaration of the invalidity of various presidential issuances. Discussing therein how such a declaration might affect acts done on a presumption of their validity, the Court said: x x x. In similar situations in the past this Court had taken the pragmatic and realistic course set forth in Chicot County Drainage District vs. Baxter Bank to wit: The courts below have proceeded on the theory that the Act of Congress, having been found to be unconstitutional, was not a law; that it was inoperative, conferring no rights and imposing no duties, and hence affording no basis for the challenged decree. x x x It is quite clear, however, that such broad statements as to the effect of a determination of unconstitutionality must be taken with qualifications. The actual existence of a statute, prior to [the determination of its invalidity], is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects with respect to particular conduct, private and official. Questions of rights claimed to have become vested, of status, of prior determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination. These questions are among the most difficult of those which have engaged the attention of courts, state and federal, and it is manifest from numerous decisions that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified. xxx xxx xxx

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Similarly, the implementation/enforcement of presidential decrees prior to their publication in the Official Gazette is an operative fact which may have consequences which cannot be justly ignored. The past cannot always be erased by a new judicial declaration x x x that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified. The Chicot doctrine cited in Taada advocates that, prior to the nullification of a statute, there is an imperative necessity of taking into account its actual existence as an operative fact negating the acceptance of a principle of absolute retroactive invalidity. Whatever was done while the legislative or the executive act was in operation should be duly recognized and presumed to be valid in all respects. The ASSO that was issued in 1979 under General Order No. 60 -- long before our Decision in Taada and the arrest of petitioner -- is an operative fact that can no longer be disturbed or simply ignored. Furthermore, the search and seizure of goods, suspected to have been introduced into the country in violation of customs laws, is one of the seven doctrinally accepted exceptions to the constitutional provision. Such provision mandates that no search or seizure shall be made except by virtue of a warrant issued by a judge who has personally determined the existence of probable cause. Under the Tariff and Customs Code, a search, seizure and arrest may be made even without a warrant for purposes of enforcing customs and tariff laws. Without mention of the need to priorly obtain a judicial warrant, the Code specifically allows police authorities to enter, pass through or search any land, enclosure, warehouse, store or building that is not a dwelling house; and also to inspect, search and examine any vessel or aircraft and any trunk, package, box or envelope or any person on board; or to stop and search and examine any vehicle, beast or person suspected of holding or conveying any dutiable or prohibited article introduced into the Philippines contrary to law. Note: The Chicot Doctrine advocates the imperative necessity to take account of the actual existence of a statute prior to its nullification, as an operative fact negating acceptance of "a principle of absolute retroactive invalidity. (Jong Cortez) SALVADOR VS. PEOPLE July 15, 2005 F: On the wee hours of June 4, 1994, Aurelio Mandin, Danilo Santos and petitioner Tomas Salvador, then aircraft mechanics employed by the Philippine Air Lines (PAL) and assigned at the Ninoy Aquino International Airport (NAIA) and Manila Domestic Airport, were nabbed by intelligence operatives of the Philippine Air Force (PAF) during a routine surveillance operation for possessing thirteen (13) packets containing assorted smuggled watches and jewelries valued at more than half a million pesos Consequently, they were charged before the Regional Trial Court (RTC) with violation of Section 3601 of the Tariff and Customs Code. They were convicted in the lower court. I: Was the warrantless search and seizure valid?

H: Yes, the warrantless search and seizure is valid. Thus, the evidence is admissible. petitioner contends that the warrantless search and seizure conducted by the PAF operatives is illegal. Citing People v. Burgos, [9] he maintains that at the time he and his co-accused were stopped by the PAF law enforces, they were unaware that a crime was being committed. Accordingly, the law enforcers were actually engaged in a fishing expedition in violation of his Constitutional right against unlawful search and seizure. Thus, the seized items should not have been admitted in evidence against him. The Office of the Solicitor General (OSG) counters that under the factual circumstances of the case at bar, there was sufficient probable cause for the PAF surveillance team to stop and search petitioner and his companions. They boarded the parked Air Bus 300 PAL plane at the time when there were no other PAL personnel working therein. They stayed inside the plane for sometime and surprisingly, came out with bulging waists. They then stopped and looked around and made apparent signals. All these acts were sufficient to engender a reasonable suspicion that petitioner and his colleagues were up to something illegal. Moreover, the search and seizure was conducted in connection with the enforcement of customs law when the petitioner and his co-accused were riding a motor vehicle. In addition, the search was conducted at the vicinity

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

of Lima Gate of the Manila Domestic Airport which, like every gate in the airport perimeter, has a checkpoint. Finally, the petitioner and his companions agreed to the search after one of them was caught with a suspicious-looking packet. Under these circumstances, the search and seizure is legal and the seized items are admissible in evidence. We agree with the OSG. As a rule, the Bill of Rights prohibits intrusions by the law enforcers to a persons body, personal effects or residence, unless the same are conducted pursuant to a valid search warrant issued in compliance with the procedure mandated by the Constitution and the Rules of Court. The Constitution do not prohibit searches and seizures, but only such as are unreasonable. Our jurisprudence provides for privileged areas where searches and seizures may lawfully be effected sans a search warrant. These recognized exceptions include: (1) search of moving vehicles; (2) search in plain view; (3) customs searches; (4) waiver or consented searches; (5) stop-and-frisk situations; and (6) search incidental to a lawful arrest. Here, it should be noted that during the incident in question, the special mission of the PAF operatives was to conduct a surveillance operation to verify reports of drug trafficking and smuggling by certain PAL personnel in the vicinity of the airport. In other words, the search made by the PAF team on petitioner and his co-accused was in the nature of a customs search. As such, the team properly effected the search and seizure without a search warrant since it exercised police authority under the customs law. In Papa vs. Mago involving a customs search, we held that law enforcers who are tasked to effect the enforcement of the customs and tariff laws are authorized to search and seize, without a search warrant, any article, cargo or other movable property when there is reasonable cause to suspect that the said items have been introduced into the Philippines in violation of the tariff and customs law. They may likewise conduct a warrantless search of any vehicle or person suspected of holding or conveying the said articles, as in the case at bar. In short, Mago clearly recognizes the power of the State to foil any fraudulent schemes resorted to by importers who evade payment of customs duties. The Governments policy to combat the serious malady of smuggling cannot be reduced to futility and impotence on the ground that dutiable articles on which the duty has not been paid are entitled to the same Constitutional protection as an individuals private papers and effects. Here, we see no reason not to apply this State policy which we have continued to affirm. Moreover, we recall that at the time of the search, petitioner and his co-accused were on board a moving PAL aircraft tow truck. As stated earlier, the search of a moving vehicle is recognized in this jurisdiction as a valid exception to the requirement for a search warrant. Such exception is easy to understand. A search warrant may readily be obtained when the search is made in a store, dwelling house or other immobile structure. But it is impracticable to obtain a warrant when the search is conducted in a mobile ship, aircraft or other motor vehicle since they can quickly be moved out of the locality or jurisdiction where the warrant must be sought. Verily, we rule that the Court of Appeals committed no reversible error in holding that the articles involved in the instant controversy were validly seized by the authorities even without a search warrant, hence, admissible in evidence against petitioner and his co-accused. Held: The search was valid.

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It is admitted that the military operatives who raided the Eurocar Sales Office were not armed with a search warrant at that time. 15 The raid was actually precipitated by intelligence reports that said office was being used as headquarters by the RAM. 16 Prior to the raid, there was a surveillance conducted on the premises wherein the surveillance team was fired at by a group of men coming from the Eurocar building. When the military operatives raided the place, the occupants thereof refused to open the door despite the requests for them to do so, thereby compelling the former to break into the office. 17 The Eurocar Sales Office is obviously not a gun store and it is definitely not an armory or arsenal which are the usual depositories for explosives and ammunition. It is primarily and solely engaged in the sale of automobiles. The presence of an unusual quantity of high-powered firearms and explosives could not be justifiably or even colorably explained. In addition, there was general chaos and disorder at that time because of simultaneous and intense firing within the vicinity of the office and in the nearby Camp Aguinaldo which was under attack by rebel forces. 18 The courts in the surrounding areas were obviously closed and, for that matter, the building and houses therein were deserted. Under the foregoing circumstances, it is out considered opinion that the instant case falls under one of the exceptions to the prohibition against a warrantless search. In the first place, the military operatives, taking into account the facts obtaining in this case, had reasonable ground to believe that a crime was being committed. There was consequently more than sufficient probable cause to warrant their action. Furthermore, under the situation then prevailing, the raiding team had no opportunity to apply for and secure a search warrant from the courts. The trial judge himself manifested that on December 5, 1989 when the raid was conducted, his court was closed. 19 Under such urgency and exigency of the moment, a search warrant could lawfully be dispensed with.

(H.) SEARCH AND SEIZURE BY PRIVATE PERSONS

PEOPLE VS MARTI January 18, 1991 F: The appellant Andre Marti and his common-law wife, Shirley Reyes, went to the booth of the "Manila Packing and Export Forwarders" in the Pistang Pilipino Complex, Ermita, Manila, carrying with them four (4) gift-wrapped packages. Anita Reyes (the proprietress and no relation to Shirley Reyes) attended to them. The appellant informed Anita Reyes that he was sending the packages to a friend in Zurich, Switzerland. Appellant filled up the contract necessary for the transaction, writing therein his name, passport number, the date of shipment and the name and address of the consignee, namely, "WALTER FIERZ, Mattacketr II, 8052 Zurich, Switzerland. Before delivery of appellant's box to the Bureau of Customs and/or Bureau of Posts, Mr. Job Reyes (proprietor) and husband of Anita (Reyes), following standard operating procedure, opened the boxes for final inspection. When he opened appellant's box, a peculiar odor emitted therefrom. He took samples of the items and sent the same to the NBI. It turned out to be dried marijuana leaves. The appellant was thereafter arrested and a criminal case was filed against him. I: Whether there was an unreasonable search and seizure in violation of the Constitution H: There was none.

(G.) EXIGENCY
PEOPLE V. DE GRACIA July 6, 1994 Facts: The incidents involved in this case took place at the height of the coup d'etat staged in December, 1989 by ultra-rightist elements headed by the Reform the Armed Forces Movement-Soldiers of the Filipino People (RAM-SFP) against the Government. In the course of events, the accused in this case was under surveillance. They were arrested by police operatives in a building. No search warrant was secured by the raiding team because, according to them, at that time there was so much disorder considering that the nearby Camp Aguinaldo was being mopped up by the rebel forces and there was simultaneous firing within the vicinity of the Eurocar office, aside from the fact that the courts were consequently closed. The group was able to confirm later that the owner of Eurocar office is a certain Mr. Gutierrez and that appellant is supposedly a "boy" therein. Issue: Was the search without warrant valid?

The constitutional proscription against unlawful searches and seizures therefore applies as a restraint directed only against the government and its agencies tasked with the enforcement of the law. Thus, it could only be invoked against the State to whom the restraint against arbitrary and unreasonable exercise of power is imposed. If the search is made upon the request of law enforcers, a warrant must generally be first secured if it is to pass the test of constitutionality. However, if the search is made at the behest or initiative of the proprietor of a private establishment for its own and private purposes, as in the case at bar, and without the intervention of police authorities, the right against unreasonable search and seizure cannot be invoked for only the act of private individual, not the law enforcers, is involved. In sum, the protection against unreasonable searches and seizures cannot be extended to acts committed by private individuals so as to bring it within the ambit of alleged unlawful intrusion by the government.

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

The constitutional proscription against unlawful searches and seizures therefore applies as a restraint directed only against the government and its agencies tasked with the enforcement of the law. Thus, it could only be invoked against the State to whom the restraint against arbitrary and unreasonable exercise of power is imposed. If the search is made upon the request of law enforcers, a warrant must generally be first secured if it is to pass the test of constitutionality. However, if the search is made at the behest or initiative of the proprietor of a private establishment for its own and private purposes, as in the case at bar, and without the intervention of police authorities, the right against unreasonable search and seizure cannot be invoked for only the act of private individual, not the law enforcers, is involved. In sum, the protection against unreasonable searches and seizures cannot be extended to acts committed by private individuals so as to bring it within the ambit of alleged unlawful intrusion by the government. DRUG VS. NLRC Oct. 16, 1997 F: Catolico was a pharmacist of Waterous Drugs. She was dismissed from the company because of certain irregularities. The said irregularities sprang from a Purchase Order of Waterous Drugs from Yun Shin Pharmaceuticals (YSP) which was said to be overpriced and that the jacked-up price was pocketed by Catolico. It appears that during the investigation made by Waterous, Ms. Saldana, a coemployee of Catolico, opened an envelope addressed to Catolico which allegedly contained a check representing the amount pocketed by Catolico. Catolico filed an Illegal Dismissal complaint with the Labor Arbiter. The Labor Arbiter decided in favor of Catolico. Waterous appealed the decision to NLRC. The NLRC affirmed the findings of the Labor Arbiter on the ground that petitioners were not able to prove a just cause for Catolico's dismissal from her employment. It found that petitioner's evidence consisted only of the check of P640.00 drawn by YSP in favor of complainant, which her co-employee saw when the latter opened the envelope. But, it declared that the check was inadmissible in evidence pursuant to Sections 2 and 3(1 and 2) of Article III of the Constitution. I: Whether the evidence was inadmissible because it violates Sections 2 and 3 (1 and 2) of Article III of the Constitution H: The evidence was admissible. The NLRC committed an error in its ruling. As regards the constitutional violation upon which the NLRC anchored its decision, we find no reason to revise the doctrine laid down in People vs. Marti 34 that the Bill of Rights does not protect citizens from unreasonable searches and seizures perpetrated by private individuals. It is not true, as counsel for Catolico claims, that the citizens have no recourse against such assaults. On the contrary, and as said counsel admits, such an invasion gives rise to both criminal and civil liabilities. (Val Donalvo) (Anna Go)

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3.

CONSTITUTIONALITY CHECKPOINTS

OF

VALMONTE vs. DE VILLA (178 SCRA 211 [1989]; 185 SCRA 665 [1990]) We cannot avoid checkpoints because it is necessary for prevention of crimes. SC stated that in checkpoints, the police can conduct reasonable searches. Even extension searches are allowed provided that there is probable cause. It can tell you to go down or open your compartment. What is probable cause? The court stated if he has the reasonable ground to believe that you are an offender. (Thyrza Marbas) PEOPLE vs. EXALA 221 SCRA 494 (1993) Facts: A search was conducted on a checkpoint, a private jeep boarded by accused stopped for routine inspection. Police asked whether there was a gun, they answered none. The police then tried conducting visual search by beaming a flashlight in the backseat. A bag was seen with the sides bulging. When the police asked what was inside the bag, nobody answered. Instead they turned fidgety. So the bag was ordered open and was found to contain 2 kilos of marijuana. While this is happening, there was no protest. Issue: whether or not the extensive search is justified Held: There was a justification for a more extensive search because when they were asked what was inside the bag nobody answered and instead all of them turned fidgety. (I wasnt able to find the case in the net. Please note that this digest is a copy from my 1st year case digests. Should you find the case in the net, please read it na lang po. Sorry ulit! ) GUANZON vs. DE VILLA 181 SCRA 623 (1990)

Facts: Members of the Metro Manila police flushed all males in the Muslim community in Quiapo. This was about a saturation drive (areal target zoning) conducted by them in connection with anti-drug campaign. They were able to apprehend the small time pushers. Issue: whether or not the saturation drives were unconstitutional Held: The SC did not rule on the constitutionality of the saturation drives. Instead, the case was remanded to the lower court for further reception of evidence. Nevertheless, the SC said that in certain situations police action is necessary. Under Article VII Section 18 of the Constitution, the President as Commander-in-Chief may call out the armed forces to quell lawlessness or violence (not necessarily martial law). Saturation drives are actually a part of police action or measure. Police measure according to the court is not illegal, it is allowed by the Constitution itself. The problem is the manner by which the police action is executed. On the case at hand, there might have been violations but the SC cannot categorize simply because petitioners are not the proper parties. Note: This case recognizes the complementary roles of the PNP and the military in conducting anti-crime campaigns, provided that the peoples rights are not violated in these words: If the military and the police must conduct concerted campaigns to flush out and catch criminal elements, such drives must be consistent with the constitutional and statutory rights of all people affected by such actions. ABENES vs. CA 515 SCRA 690 (2007) Facts: 3 days prior to the May 11, 1998 national and local elections, PNP of Pagadian City created a team composed of seven policemen with a directive to establish and man a checkpoint in Barangay Danlugan at said city, for the purpose of enforcing the Gun Ban which was then being implemented by the COMELEC. The team put up a road block with the marking "COMELEC GUN BAN". A red Tamaraw FX, with the petitioner as one of the occupants, trying to pass through the check point was stopped by the team. Petitioner Abenes who is a Barangay Chairman of Tawagan Norte,

PEOPLE vs. MENDOZA 301 SCRA 66 (1999) PEOPLE vs. BONGCARAWAN 384 SCRA 525 (2002) (I.) AIRPORT SECURITY PEOPLE vs. JOHNSON 348 SCRA 527 (2000) PEOPLE vs. JOHNSON 394 SCRA 478 (2002) PEOPL vs. CANTON 394 SCRA 478 (2002) (J.) JAIL SAFETY PEOPLE vs. CONDE 356 SCRA 625 (2002)

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

Labangan, Zamboanga Del Sur was seen with a holstered firearm tucked at his right waist. The firearm was readily visible to the policemen; it was not covered by the shirt worn by Abenes. He was then asked whether he had a license and authority to carry the firearm, and whether his possession was exempted from the Gun Ban being enforced by the COMELEC to which he answered in the affirmative but failed to show the pertinent documents. Hence the firearm was confiscated. Issue: Was the check-point validly established? Held: This Court has ruled that not all checkpoints are illegal. Those which are warranted by the exigencies of public order and are conducted in a way least intrusive to motorists are allowed. For, admittedly, routine checkpoints do intrude, to a certain extent, on motorists right to "free passage without interruption," but it cannot be denied that, as a rule, it involves only a brief detention of travelers during which the vehicles occupants are required to answer a brief question or two. For as long as the vehicle is neither searched nor its occupants subjected to a body search, and the inspection of the vehicle is limited to a visual search, said routine checks cannot be regarded as violative of an individuals right against unreasonable search. In fact, these routine checks, when conducted in a fixed area, are even less intrusive. The checkpoint herein conducted was in pursuance of the gun ban enforced by the COMELEC. The COMELEC would be hard put to implement the ban if its deputized agents were limited to a visual search of pedestrians. It would also defeat the purpose for which such ban was instituted. Those who intend to bring a gun during said period would know that they only need a car to be able to easily perpetrate their malicious designs.

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1. Whether or not the search warrants were valid. 2. Whether or not the things seized may be used in evidence against them Held: 1. No, they are not valid since they are general warrants. Requirements for a valid search warrant: 1. That no warrant shall issue but upon probable cause, to be determined by the judge; 2. That the warrant shall particularly describe the things to be seized. The requisites were not met. There was no specific offense. As a consequence, it would have been impossible for the judge to have found the existence of probable cause. The things to be seized were not particularly described. 2. No, the things searched and seized from petitioners cannot be used against them. The exclusionary rule applies; otherwise, it would violate the spirit of the constitutional injunction against unreasonable searches and seizures. The articles that were seized illegally by the government cannot be used as admissible evidence, thus adopting the fruit of the poisonous tree doctrine in Philippine jurisdiction.

PASTRANO vs. CA 281 SCRA 254 (1997) 4. WIRE TAPPING GAANAN vs. IAC 145 SCRA 112 (1986)
Facts: Atty.Laconico and Atty. Gaanan are client and counsel respectively. Laconico called the complainant in the direct assault charge against him in the hope of setting the case amicably. While Laconico was talking to the complainant through the telephone, he asked his lawyer (Gaanan) to listen through an extension telephone. The deal was made and the pay-off settled. During the pay-off, Atty. Gaanan and Laconico made it appear that it was extotrtion, with the presence of NBI agents. The evidence for extortion was statements of Gaanan and Kaconico as well as affidavits regarding the phone conversation. Laconico and Gaanan were charged for violation of RA 4200. Issue: whether or not the extension phone is among those prohibited devices under RA 4200 Held: No. RA 4200 expressly prohibits the tapping of a wire where there is physical interruption or deliberate installation of a device. A telephone extension is not covered by this definition because there is no physical interruption by installing a device. To have an extension is part of the installation. Facts: Two sons of petitioner Pastrano - James Clement G. Pastrano and Clinton Steve G. Pastrano seek assistance from the authority in connection with the death of their brother Clyde. The brothers reported that their father and his common-law wife were keeping unlicensed firearms in their house. They executed a joint affidavit on February 20, 1989 in which they stated that they had personal knowledge of the fact that their father Pedrito Pastrano was keeping three (3) firearms of different calibers in the bedroom of his house. After examining the two brothers, Judge Teodorico M. Durias of the Municipal Trial Court of Oroquieta City (Branch I) issued a search warrant which Capt. Maoza and his men later served at the residence of Pastrano. Issue: whether or not the Search Warrant issued by Judge Teodorico Durias is invalid for failure to comply with the basic requirements of the Constitution and thus, the evidence obtained is inadmissible in court Held: 1. The second ground for the present petition is that the evidence against petitioner was obtained through illegal search. Petitioner cites the constitutional provision that no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. Petitioner contends that Capt. Rodolfo Maoza, who applied for the search warrant, did not have personal knowledge of the facts on which the warrant was based. But the trial court actually examined the two brothers, James Clement G. Pastrano and Clinton G. Steve Pastrano. These two were the ones who reported the matter to Capt. Maoza. They gave information of the illegal possession of firearms by their father, petitioner herein, on the basis of personal knowledge. Their testimonies, not that of Capt. Maoza, formed the basis of the trial courts finding of probable cause for the issuance of a search warrant. 2. Petitioner assails the absence of a written deposition showing that the judge had examined the complainant and his witnesses by means of searching questions in writing and under oath as required by Rule 126, 4 of the Rules on Criminal Procedure, to wit:

5.

WHAT MAY BE SEIZED

A.

6. REMEDIES IN CASES OF VIOLATION EXCLUSIONARY RULE STONEHILL vs. DIOKNO 20 SCRA 383 (1967)

Facts: The crime alleged is a violation of several laws. Several judges issued various search warrants (amounting to 42 in all) against petitioners herein and /or the corporations of which they were officers, directed to any peace officers, to search the persons above-named and/or the premises of their offices, warehouses, and/or residences, and to seize and take possession of book of accounts, financial records, vouchers, etc., and other documents and/or papers showing all business transactions. The materials are alleged to have been the subject of a violation of Central Bank Laws, Tariff and Customs laws, Internal Revenue (Code), and the Revised Penal Code. Issues:

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

4. Examination of complainant, record. - The judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath the complainant and any witnesses he may produce on facts personally known to them and attach to the record their sworn statements together with any affidavits submitted. Rule 126, 4 indeed requires the examination of the complainant and his witnesses to be put in writing and under oath. But although this is a ground for quashing a search warrant in this case, petitioner did nothing to this end. He did not move to quash the information before the trial court. Nor did he object to the presentation of the evidence obtained as being the product of an illegal search. In the case of Demaisip v. Court of Appeals, we held: At any rate, objections to the legality of the search warrant and to the admissibility of the evidence obtained thereby were deemed waived when no objection to the legality of the search warrant was raised during the trial of the case nor to the admissibility of the evidence obtained through said warrant. Petitioner thus waived any objection based on the illegality of the search. As held in People v. Omaweng, the right to be secure against unreasonable searches and seizures, like any other right, can be waived and the waiver may be made either expressly or impliedly.

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1986 was the widely held perception that the government was callous or indifferent to, if not actually responsible for, the rampant violations of human rights. While it would certainly be too naive to expect that violators of human rights would easily be deterred by the prospect of facing damage suits, it should nonetheless be made clear in no uncertain terms that Article 32 of the Civil Code makes the persons who are directly, as well as indirectly, responsible for the transgression joint tortfeasors. Further, the suspension of the privilege of the writ of habeas corpus does not destroy Aberca, et. al.s right and cause of action for damages for illegal arrest and detention and other violations of their constitutional rights. The suspension does not render valid an otherwise illegal arrest or detention. What is suspended is merely the right of the individual to seek release from detention through the writ of habeas corpus as a speedy means of obtaining his liberty. Furthermore, their right and cause of action for damages are explicitly recognized in P.D. No. 1755 which amended Article 1146 of the Civil Code by adding the following to its text: However, when the action (for injury to the rights of the plaintiff or for a quasi-delict) arises from or out of any act, activity or conduct of any public officer involving the exercise of powers or authority arising from Martial Law including the arrest, detention and/or trial of the plaintiff, the same must be brought within one (1) year. Thus, even assuming that the suspension of the privilege of the writ of habeas corpus suspends Aberca, et. al.s right of action for damages for illegal arrest and detention, it does not and cannot suspend their rights and causes of action for injuries suffered because of Ver, et. al.s confiscation of their private belongings, the violation of their right to remain silent and to counsel and their right to protection against unreasonable searches and seizures and against torture and other cruel and inhuman treatment.

B.

CIVIL ACTION FOR DAMAGES ABERCA vs. VER 160 SCRA 590

Facts: Petitioners brought suit alleging that General Fabian Ver had ordered the Task Force Makabansa of the AFP to conduct "preemptive strikes against known communist terrorists'' underground houses" in Metro Manila. The TFM raided some places using defective warrants; they seized personal belongings of petitioners; they had been interrogated in violation of their right to silence and to counsel; they had been tortured and intimidated. Petitioners asked for payment of damages for violations of their constitutional rights. Issue: Whether Ver, et. al., may be held civilly liable for undertaking invalid search and seizures, or violation of Constitutional rights or liberties of another in general. Held: It may be that Ver, et. al., as members of the Armed Forces of the Philippines, were merely responding to their duty, as they claim, to prevent or suppress lawless violence, insurrection, rebellion and subversion in accordance with Proclamation 2054 of President Marcos, despite the lifting of martial law on 27 January 1981, and in pursuance of such objective, to launch pre-emptive strikes against alleged communist terrorist underground houses. But this cannot be construed as a blanket license or a roving commission untramelled by any constitutional restraint, to disregard or transgress upon the rights and liberties of the individual citizen enshrined in and protected by the Constitution. The Constitution remains the supreme law of the land to which all officials, high or low, civilian or military, owe obedience and allegiance at all times. Article 32 of the Civil Code which renders any public officer or employee or any private individual liable in damages for violating the Constitutional rights and liberties of another, as enumerated therein, does not exempt Ver, et. al. from responsibility. Only judges are excluded from liability under the said article, provided their acts or omissions do not constitute a violation of the Penal Code or other penal statute. This is not to say that military authorities are restrained from pursuing their assigned task or carrying out their mission with vigor. However, in carrying out this task and mission, constitutional and legal safeguards must be observed, otherwise, the very fabric of our faith will start to unravel. Article 32 clearly speaks of an officer or employee or person directly or indirectly responsible for the violation of the constitutional rights and liberties of another. Thus, it is not the actor alone (i.e. the one directly responsible) who must answer for damages under Article 32; the person indirectly responsible has also to answer for the damages or injury caused to the aggrieved party. By this provision, the principle of accountability of public officials under the Constitution acquires added meaning and assumes a larger dimension. No longer may a superior official relax his vigilance or abdicate his duty to supervise his subordinates, secure in the thought that he does not have to answer for the transgressions committed by the latter against the constitutionally protected rights and liberties of the citizen. Part of the factors that propelled people power in February

FORBES vs. CHUOCO TIACO 16 PHIL 534 (1910)

Note: This is a really old case, decided by the US Supreme Court (228 U.S. 549 (1913). But to summarize; In the Philippines, we have adopted the doctrine of presidential immunity from American jurisprudence. In the 1905 case of Forbes vs. Chuoco Tiaco, our Supreme Court ruled that the head of the executive department could not be held personally liable for damages resulting from an act performed pursuant to law.

Held: Where the act originally purports to be done in the name and by the authority of the state, a defect in that authority may be cured by the subsequent adoption of the act. The deportation of a Chinaman from the Philippine Islands by the Governor General prior to an act of the legislature authorizing such deportation is to be considered as having been ordered in pursuance of such statute. Sovereign states have inherent power to deport aliens, and Congress is not deprived of this power by the Constitution of the United States. The ground on which the power to deport aliens rests necessitates that it may have to be exercised in a summary manner by executive officers. Congress not being prevented by the Constitution from deporting aliens, the Philippine government cannot be prevented from so doing by the Bill of Rights incorporated in the Act of July 1, 1902. The deportation of aliens in this case by the Philippine government was not a deprivation of liberty without due process of law. The local government of the Philippine Islands has all civil and judicial power necessary to govern the Islands, and this includes the power to deport aliens. The extension by Congress of the Chinese Exclusion and Immigration Laws to the Philippine Islands does not prevent the government of the Islands passing an act removing aliens therefrom. The English rule is that an act of state is not cognizable in any municipal court. It is within the power of the Legislature of the Philippine Islands to declare an act of the executive which is within its power to authorize to be not subject to question or review. Deporting the plaintiffs was not depriving them of liberty without due process of law unless, on other grounds, the local government was acting beyond its powers. But the local

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

government has all civil and judicial power necessary to govern the Islands.

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FACTS: On February 16, 1995 Criminal Case No. 22018 was filed with the Sandiganbayan and thereafter raffled to the First Division.On February 17, 1995, an order for the arrest of petitioner was issued by the respondent Sandiganbayan.On February 19, 1995 petitioner filed with respondent court an Opposition to Issuance of Warrant of Arrest with Motion For Leave To File Motion For Reconsideration of Ombudsman Resolutions. In his Opposition, petitioner alleged that since the only documents attached to the Information and submitted to respondent Sandiganbayan were the Resolution dated June 2, 1992 of the panel of investigators and the Memorandum dated January 16, 1995 of the Office of the Special Prosecutor, the same were not adequate for the determination of probable cause for the issuance of a warrant of arrest by respondent Sandiganbayan. Hence, petitioner claims the respondent Sandiganbayan should recall the warrant of arrest already issued or desist from issuing a warrant of arrest. Petitioner, avers, furthermore that the filing of the Information was premature considering that he was not furnished a copy of the Ombudsmans Resolution in violation of Section 27 of R.A. No. 6770 and prays that he be given leave to file a motion for reconsideration of the Ombudsmans Resolution dated June 2, 1992 and the Office of the Special Prosecutors Memorandum dated January 16, 1995.On February 22, 1995, petitioner posted bail. On the same day he likewise filed, through counsel, a Manifestation stating that he was posting bail without prejudice to the Opposition To Issuance of Warrant of Arrest with Motion For Leave To File a Motion For Reconsideration of the Ombudsmans Resolution which he filed. ISSUE: Whether the warrant of arrest issued by respondent Sandiganbayan is null and void, or should now be lifted if initially valid. RULING: Petitioner and the Office of the Special Prosecutor both argue that the warrant of arrest issued by respondent Sandiganbayan is null and void for lack of sufficient basis upon which it could have personally determined the existence of probable cause to issue the warrant of arrest against him. They contend that there was a violation of Section 2, Article III of the Constitution because the Information in Criminal Case No. 22018 was accompanied only by the Resolution dated June 2, 1992 of the Panel of Graft Investigators of the Office of the Ombudsman recommending the filing of the information and the Memorandum dated January 16, 1995 of the Office of the Special Prosecutor denying the existence of a prejudicial question which will warrant the suspension of the filing of the criminal case. Their argument is principally anchored on the pronouncements made in the case of Ho vs. Peoplethat reliance on the prosecutors report alone is not sufficient in determining whether there is probable cause for the issuance of a warrant of arrest. Consequent to the nullity of the warrant of arrest, petitioner further argues that the Sandiganbayan has not acquired jurisdiction over him and is without power to exercise the same. However, the Office of the Special Prosecutor and the Office of the Solicitor General maintain that any infirmity that may have attended the issuance of the warrant of arrest was cured by petitioners voluntary submission to the jurisdiction of the respondent Sandiganbayan when petitioner posted bail and subsequently invoked the jurisdiction of the Sandiganbayan by filing numerous motions wherein he sought affirmative reliefs. Now, pertinent to the issue at hand is the second clause of Section 2, Article III of the 1987 Constitution, which provides that: Sec. 2. xxx no search warrant or warrant of arrest shall issue except upon a probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. (Emphasis supplied) In Ho vs. People, the Court had the opportunity to elucidate on the matter of determining of probable cause to merit the issuance of a warrant of arrest: First, x xx the determination of probable cause by the prosecutor is for a purpose different from that which is to be made by the judge. Whether there is reasonable ground to believe that the accused is guilty of the offense charged and should be held for trial is what the prosecutor passes upon. The judge, on the other hand, determines whether a warrant of arrest should be issued against the accused, i.e., whether there is a necessity for placing him under immediate custody in order not to frustrate the ends of justice. Thus, even if both should base their findings on one and the same proceeding or evidence, there should be no confusion as to their distinct objectives. Second, since their objectives are different, the judge cannot rely solely on the report of the prosecutor in finding probable cause to justify the issuance of a warrant of arrest. Obviously and understandably, the contents of the prosecutors report will support his own conclusion that there is reason to charge the accused of an

(Janissa Delicona)

C.

CRIMINAL CASES UNDER REVISED PENAL CODE 7. REQUIREMENTS FOR ISSUANCE OF WARRANT OF ARREST
LIM VS FELIX (1991)

Facts: Sometime on March 1989, Congressman Espinosa and his security escorts were attacked and killed by a lone assassin.An information for murder was filed against the petitoners. Petitioners filed a verified petition for change of venue. The SC issued an En Banc Resolution authorizing the change of venue from the Regional Trial Court of Masbate to the Regional Trial Court of Makati to avoid a miscarriage of justice. The cases were raffled to Branch 56 presided by respondent Judge Nemesio S. Felix. Judge Felix issued a warrant of arrest. Issue: The primary issue in these consolidated petitions centers on whether or not a judge may issue a warrant of arrest without bail by simply relying on the prosecution's certification and recommendation that a probable cause exists. Ruling: The records of the preliminary investigation conducted by the Municipal Court of Masbate and reviewed by the respondent Fiscal were still in Masbate when the respondent Judge issued the warrants of arrest against the petitioners. There was no basis for the respondent Judge to make his own personal determination regarding the existence of a probable cause for the issuance of a warrant of arrest as mandated by the Constitution. He could not possibly have known what transpired in Masbate as he had nothing but a certification. Significantly, the respondent Judge denied the petitioners' motion for the transmittal of the records on the ground that the mere certification and recommendation of the respondent Fiscal that a probable cause exists is sufficient for him to issue a warrant of arrest. We reiterate the ruling in Soliven v. Makasiar that the Judge does not have to personally examine the complainant and his witnesses. The Prosecutor can perform the same functions as a commissioner for the taking of the evidence. However, there should be a report and necessary documents supporting the Fiscal's bare certification. All of these should be before the Judge. The extent of the Judge's personal examination of the report and its annexes depends on the circumstances of each case. We cannot determine before hand how cursory or exhaustive the Judge's examination should be. The Judge has to exercise sound discretion for, after all, the personal determination is vested in the Judge by the Constitution. It can be as brief or as detailed as the circumstances of each case require. To be sure, the Judge must go beyond the Prosecutor's certification and investigation report whenever necessary. He should call for the complainant and witnesses themselves to answer the court's probing questions when the circumstances of the case so require. It is worthy to note that petitioners Vicente Lim, Sr. and Susana Lim presented to the respondent Judge documents of recantation of witnesses whose testimonies were used to establish a prima facie case against them. Although, the general rule is that recantations are not given much weight in the determination of a case and in the granting of a new trial [Tan Ang Bun v. Court of Appeals, et al. G. R. No. L-47747, February 15, 1990, People v. Lao Wan Sing, 46 SCRA 298 (1972)], the respondent Judge before issuing his own warrants of arrest should, at the very least, have gone over the records of the preliminary examination conducted earlier in the light of the evidence now presented by the concerned witnesses in view of the "political undertones" prevailing in the cases. Even the Solicitor General recognized the significance of the recantations of some witnesses when he recommends a reinvestigation of the cases. We reiterate that in making the required personal determination, a Judge is not precluded from relying on the evidence earlier gathered by responsible officers. The extent of the reliance depends on the circumstances of each case and is subject to the Judge's sound discretion. However, the Judge abuses that discretion when having no evidence before him, he issues a warrant of arrest. Indubitably, the respondent Judge committed a grave error when he relied solely on the prosecutor's certification and issued the questioned Order dated July 5, 1990 without having before him any other basis for his personal determination of the existence of a probable cause. COJUANGCO VS SANDIGANBAYAN (1998)

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

offense and hold him for trial. However, the judge must decide independently. Hence, he must have supporting evidence, other than the prosecutors bare report, upon which to legally sustain his own findings on the existence (or nonexistence) of a probable cause to issue an arrest order. This responsibility of determining personally and independently the existence or nonexistence of probable cause is lodged in him by no less than the most basic law of the land. Parenthetically, the prosecutor could ease the burden of the judge and speed up the litigation process by forwarding to the latter not only the information and his bare resolution finding probable cause, but also so much of the records and the evidence on hand as to enable His Honor to make his personal and separate judicial finding on whether to issue a warrant of arrest. Lastly, it is not required that the complete or entire records of the case during the preliminary investigation be submitted to and examined by the judge. We do not intend to unduly burden trial courts by obliging them to examine the complete records of every case all the time simply for the purpose of ordering the arrest of an accused. What is required, rather, is that the judge must have sufficient supporting documents (such as the complaint, affidavits, counter-affidavits, sworn statements of witnesses or transcripts of stenographic notes, if any) upon which to make his independent judgment or, at the very least, upon which to verify the findings of the prosecutor as to the existence of probable cause. The point is: he cannot rely solely and entirely on the prosecutors recommendation, as Respondent Court did in this case. Although the prosecutor enjoys the legal presumption of regularity in the performance of his official duties and functions, which in turn gives his report the presumption of accuracy, the Constitution, we repeat, commands the judge to personally determine probable cause in the issuance of warrants of arrest. This Court has consistently held that a judge fails in his bounden duty if he relies merely on the certification or the report of the investigating officer. As alleged by petitioner, in the case at bar, the Sandiganbayan had two pieces of documents to consider when it resolved to issue the warrant of arrest against the accused: (1) the Resolution dated June 2, 1992 of the Panel of Investigators of the Office of the Ombudsman recommending the filing of the Information and (2) the Memorandum dated June 16, 1995 of the Office of the Special Prosecutor denying the existence of a prejudicial question which will warrant the suspension of the criminal case. The Sandiganbayan had nothing more to support its resolution. In Roberts vs. Court of Appeals, we struck down as invalid an order for the issuance of a warrant of arrest which were based only on the information, amended information and Joint Resolution, without the benefit of the records or evidence supporting the prosecutors finding of probable cause. And in Ho vs. People, we declared that respondent palpably committed grave abuse of discretion in ipso facto issuing the challenged warrant of arrest on the sole basis of the prosecutors findings and recommendation, and without determining on its own the issue of probable cause based on evidence other than such bare findings and recommendation. Similarly, we are now constrained to rule that herein respondent court failed to abide by the constitutional mandate of personally determining the existence of probable cause before issuing a warrant of arrest. For the two cited documents were the product of somebody elses determination, insufficient to support a finding of probable cause by the Sandiganbayan. Hence, the warrant of arrest issued by respondent court on February 17, 1995 against herein petitioner is palpably invalid. ABDULA VS GUIANI (2000) FACTS: On 24 June 1994, a complaint for murderwas filed before the Criminal Investigation Service Command, ARMM Regional Office XII against herein petitioners and six (6) other personsin connection with the death of a certain Abdul Dimalen, the former COMELEC Registrar of Kabuntalan, Maguindanao. Acting on this complaint, the Provincial Prosecutor of Maguindanao, Salick U. Panda, in a Resolution dated 22 August 1994, dismissed the charges of murder against herein petitioners and five other respondents on a finding that there was no prima facie case for murder against them. Prosecutor Panda, however, recommended the filing of an information for murder against one of the respondents, a certain Kasan Mama. Pursuant to this Resolution, an information for murder was thereafter filed against Kasan Mama before the sala of respondent Judge. In an Order dated 13 September 1994, respondent Judge ordered that the case, now docketed as Criminal Case No. 2332, be returned to the Provincial Prosecutor for further investigation. In this Order, respondent judge noted that although there were eight (8) respondents in the murder case, the information filed with the court "charged only

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one (1) of the eight (8) respondents in the name of Kasan Mama without the necessary resolution required under Section 4, Rule 112 of the Revised Rules of Court to show how the investigating prosecutor arrived at such a conclusion." As such, the respondent judge reasons, the trial court cannot issue the warrant of arrest against Kasan Mama. Upon the return of the records of the case to the Office of the Provincial Prosecutor for Maguindanao, it was assigned to 2nd Assistant Prosecutor Enok T. Dimaraw for further investigation. In addition to the evidence presented during the initial investigation of the murder charge, two new affidavits of witnesses were submitted to support the charge of murder against herein petitioners and the other respondents in the murder complaint. Thus, Prosecutor Dimaraw treated the same as a refiling of the murder charge and pursuant to law, issued subpoena to the respondents named therein. On December 6, 1994, herein petitioners submitted and filed their joint counter-affidavits. After evaluation of the evidence, Prosecutor Dimaraw, in a Resolution dated 28 December 1994, found a prima facie case for murder against herein petitioners and three (3) other respondents. He thus recommended the filing of charges against herein petitioners BaiUnggieAbdula and Odin Abdula, as principals by inducement, and against the three (3) others, as principals by direct participation. On 2 January 1995, an information for murder dated 28 December 1994 was filed against the petitioner spouses and Kasan Mama, CuencoUsman and Jun Mama before Branch 14 of the Regional Trial Court of Cotabato City, then the sala of respondent judge. This information was signed by investigating prosecutor Enok T. Dimaraw. The following day, or on 3 January 1995, the respondent judge issued a warrant for the arrest of petitioners. Upon learning of the issuance of the said warrant, petitioners filed on 4 January 1995 an Urgent Ex-parte Motion for the setting aside of the warrant of arrest on 4 January 1995. In this motion, petitioners argued that the enforcement of the warrant of arrest should be held in abeyance considering that the information was prematurely filed and that the petitioners intended to file a petition for review with the Department of Justice. A petition for review was filed by the petitioners with the Department of Justice on 11 January 1995. Despite said filing, respondent judge did not act upon petitioners pending Motion to Set Aside the Warrant of Arrest. Issue: Whether or not the warrant of arrest issued against petitioners was valid. Ruling: On this issue, petitioners, citing the case of Allado vs. Diokno argue that the warrant for his arrest should be recalled considering that the respondent judge "did not personally examine the evidence nor did he call the complainant and his witnesses in the face of their incredible accounts." As proof, he points to the fact that the information was filed at around 4:00 p.m. of the January 2, 1995 and the order of arrest was immediately issued the following day or on January 3, 1995. Moreover, petitioner argues, respondent judge did not even issue an order stating that there is probable cause for the issuance of the warrant of arrest, a clear violation of the guidelines set forth in the Allado case. In the case at bench, respondent admits that he issued the questioned warrant as there was "no reason for (him) to doubt the validity of the certification made by the Assistant Prosecutor that a preliminary investigation was conducted and that probable cause was found to exist as against those charged in the information filed." The statement is an admission that respondent relied solely and completely on the certification made by the fiscal that probable cause exists as against those charged in the information and issued the challenged warrant of arrest on the sole basis of the prosecutors findings and recommendations. He adopted the judgment of the prosecutor regarding the existence of probable cause as his own. Although the prosecutor enjoys the legal presumption of regularity in the performance of his official duties, which in turn gives his report the presumption of accuracy, nothing less than the fundamental law of the land commands the judge to personally determine probable cause in the issuance of warrants of arrest. A judge fails in this constitutionally mandated duty if he relies merely on the certification or report of the investigating officer. To be sure, we cannot determine beforehand how cursory or exhaustive the respondents examination of the records should be. The extent of the judges examination depends on the exercise of his sound discretion as the circumstances of the case require. In the case at bench, the respondent had before him two different

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

informations and resolutions charging two different sets of suspects. In the face of these conflicting resolutions, it behooves him not to take the certification of the investigating prosecutor at face value. The circumstances thus require that respondent look beyond the bare certification of the investigating prosecutor and examine the documents supporting the prosecutors determination of probable cause. The inordinate haste that attended the issuance of the warrant of arrest and respondents own admission are circumstances that tend to belie any pretense of the fulfillment of this duty. Clearly, respondent judge, by merely stating that he had no reason to doubt the validity of the certification made by the investigating prosecutor has abdicated his duty under the Constitution to determine on his own the issue of probable cause before issuing a warrant of arrest. Consequently, the warrant of arrest should be declared null and void.

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supporting documents submitted by the prosecutor regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or (b) if on the basis thereof he finds no probable cause, disregard the prosecutors report and require the submission of supporting affidavits of witnesses to aid him in determining its existence. What he is never allowed to do is follow blindly the prosecutors bare certification as to the existence of probable cause. Much more is required by the constitutional provision. Judges have to go over the report, the affidavits, the transcript of stenographic notes if any, and other documents supporting the prosecutors certification. Although the extent of the judges personal examination depends on the circumstances of each case, to be sure, he cannot just rely on the bare certification alone but must go beyond it. This is because the warrant of arrest issues not on the strength of the certification standing alone but because of the records which sustain it. He should even call for the complainant and the witnesses to answer the courts probing questions when the circumstances warrant. In the case at bench respondent Judge not only failed to follow the required procedure but worse, was negligent enough not to have noticed that there was not even a prosecutor's certification to rely upon since no information had even been filed yet in court, and that Crim. Case No. Br. 20-1373 was merely docketed as such on the strength of a mere complaint filed by the private complainant LeoncioDalin Sr. himself. Respondent Judge admitted that he signed the Warrant of Arrest against complainant and the latters client simply because it was presented to him for signature by the Criminal Docket Clerk. There was thus a total and unwarranted abdication of a judicial function. Respondent cannot exculpate himself from administrative liability by contending that the mistake was entirely attributable to the Criminal Docket Clerk who failed to faithfully comply with her "duty" of going over the records of criminal cases and ensuring first that an information had already been filed in court before preparing the warrant of arrest. As we have already repeatedly said, a judge cannot take refuge behind the inefficiency of his court personnel for they are not guardians of his responsibilities. More importantly the responsibility delegated by respondent was clearly unauthorized and unwarranted, as already explained above. He cannot without abandoning his judicial obligation just instruct the Criminal Docket Clerk, through the much vaunted Check List for Criminal Cases that he had prepared for her to follow, to automatically prepare warrants of arrest simply because informations have been filed against the accused. Although respondents purpose in preparing the Check List, i.e., to help him comply with RA 8493 otherwise known as the Speedy Trial Act of 1998, may be considered laudable, we have already said that shortcuts in judicial processes are to be avoided when they impede rather than promote a judicious dispensation of justice. Much more when, as in the instant case, the shortcut amounted to a violation of a constitutional provision. GOVERNMENT VS PURGANAN (2002) ISSUE: In extradition cases, is Respondent Entitled to Notice and Hearing Before the Issuance of a Warrant of Arrest? RULING: NO. Petitioner contends that the procedure adopted by the RTC --informing the accused, a fugitive from justice, that an Extradition Petition has been filed against him, and that petitioner is seeking his arrest -- gives him notice to escape and to avoid extradition. Moreover, petitioner pleads that such procedure may set a dangerous precedent, in that those sought to be extradited -including terrorists, mass murderers and war criminals -- may invoke it in future extradition cases. On the other hand, Respondent Jimenez argues that he should not be hurriedly and arbitrarily deprived of his constitutional right to liberty without due process. He further asserts that there is as yet no specific law or rule setting forth the procedure prior to the issuance of a warrant of arrest, after the petition for extradition has been filed in court; ergo, the formulation of that procedure is within the discretion of the presiding judge. Both parties cite Section 6 of PD 1069 in support of their arguments. It states: SEC. 6. Issuance of Summons; Temporary Arrest; Hearing, Service of Notices.- (1) Immediately upon receipt of the petition, the presiding judge of the court shall, as soon as practicable, summon the accused to appear and to answer the petition on the day and hour fixed in the order. [H]e may issue a warrant for the immediate arrest of the accused which may be served any where within the Philippines if it appears to the presiding judge that the immediate arrest and temporary detention of the accused will best serve the ends of justice. Upon receipt of the answer, or should the accused after having received the summons fail to

TALINGDAN VS EDUARTE(2001) FACTS: Atty. Edgar H. Talingdan, a private practitioner, charges respondent Judge Henedino P. Eduarte, RTC-Br. 20, Cauayan, Isabela, with improvidently issuing a warrant of arrest in Crim. Case No. Br. 20-1373 for libel without the requisite preliminary investigation being first conducted by the Office of the Public Prosecutor. Specifically, complainant alleged in his Letter-Complaint that sometime in April 2000 elements of the PNP stormed into his residence to arrest him and his client, Modesto Luzano, on the strength of a Warrant of Arrest dated 12 April 2000 issued by respondent Judge Eduarte in Crim. Case No. Br. 20-1373 entitled "People v. Edgar Talingdan and Modesto Luzano" for the supposed crime of libel. Surprised that such a case existed against him and his client as they had not been previously charged, complainant filed a Very Urgent Motion to Quash and/or Set Aside Warrant of Arrest and Direct Prosecutors Office to Conduct Preliminary Investigation asking that the Warrant of Arrest be set aside for being premature since they had not been previously notified of the charge against them and no preliminary investigation was ever conducted by the public prosecutors office yet, and for being defective since the amount of bail was not specified therein in violation of their constitutional right to bail. Respondent Judge granted the motion and recalled the warrant of arrest in an Order dated 12 May 2000 admitting that he issued the same under the mistaken belief that a preliminary investigation had already been conducted and an information already filed in court. Complainant nonetheless filed this administrative case allegedly to help the Court in purging the Judiciary of those who undermine its dignity and credibility as his faith therein was almost eroded by the unfortunate incident. In his Comments respondent Judge did not deny that he issued the improvident warrant of arrest. He only alleged by way of explanation and exculpation that on 24 March 2000 a complaint for libel was directly filed with the RTC-Br. 19, Cauayan, Isabela, by LeoncioDalin Sr. which was docketed as Crim. Case No. 2881. The case was assigned to his sala after raffle and was re-docketed as Crim. Case No. Br. 20-1373. The records of the case then went to the Criminal Docket Clerk, Ms. Imelda Severino who, under the Check List for Criminal Cases that he had prepared for her, was supposed to verify from the records first whetheran information had already been filed and if there was, to prepare the corresponding warrant of arrest if the accused had not yet been arrested. Thus when he saw the Warrant of Arrest prepared by Ms. Severino in Crim. Case No. Br. 20-1373, he signed the same honestly thinking that she had faithfully complied first with her duty of going over the records of the case. Respondent Judge assured the Court that the incident was a simple mistake on his part and that he had not been actuated by malice, corrupt motive, or improper consideration in its commission. ISSUE: Whether or not the judge acted improvidently in issuing the warrants or arrest against the petitioners? RULING: YES. Enshrined in our Constitution is the rule that "[n]o x xx warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing x xx the persons x xx to be seized." Interpreting the words "personal determination" we said that it does not thereby mean that judges are obliged to conduct the personal examination of the complainant and his witnesses themselves. To require thus would be to unduly laden them with preliminary examinations and investigations of criminal complaints instead of concentrating on hearing and deciding cases filed before them. Rather what is emphasized merely is the exclusive and personal responsibility of the issuing judge to satisfy himself as to the existence of probable cause. To this end he may: (a) personally evaluate the report and the

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

answer within the time fixed, the presiding judge shall hear the case or set another date for the hearing thereof. (2) The order and notice as well as a copy of the warrant of arrest, if issued, shall be promptly served each upon the accused and the attorney having charge of the case. (Emphasis ours) Does this provision sanction RTC Judge Purganans act of immediately setting for hearing the issuance of a warrant of arrest? We rule in the negative. 1. On the Basis of the Extradition Law It is significant to note that Section 6 of PD 1069, our Extradition Law, uses the word immediate to qualify the arrest of the accused. This qualification would be rendered nugatory by setting for hearing the issuance of the arrest warrant. Hearing entails sending notices to the opposing parties, receiving facts and arguments from them, and giving them time to prepare and present such facts and arguments. Arrest subsequent to a hearing can no longer be considered immediate. The law could not have intended the word as a mere superfluity but, on the whole, as a means of imparting a sense of urgency and swiftness in the determination of whether a warrant of arrest should be issued. By using the phrase if it appears, the law further conveys that accuracy is not as important as speed at such early stage. The trial court is not expected to make an exhaustive determination to ferret out the true and actual situation, immediately upon the filing of the petition. From the knowledge and the material then available to it, the court is expected merely to get a good first impression -- a prima facie finding -- sufficient to make a speedy initial determination as regards the arrest and detention of the accused. Attached to the Petition for Extradition, with a Certificate of Authentication among others, were the following: (1) Annex H, the Affidavit executed on May 26, 1999 by Mr. Michael E. Savage -- trial attorney in the Campaign Financing Task Force of the Criminal Division of the US Department of Justice; (2) Annexes H to G, evidentiary Appendices of various exhibits that constituted evidence of the crimes charged in the Indictment, with Exhibits 1 to 120 (duly authenticated exhibits that constituted evidence of the crimes charged in the Indictment); (3) Annex BB, the Exhibit I Appendix of Witness [excerpts] Statements Referenced in the Affidavit of Angela Byers and enclosed Statements in two volumes; (4) Annex GG, the Exhibit J Table of Contents for Supplemental Evidentiary Appendix with enclosed Exhibits 121 to 132; and (5) Annex MM, the Exhibit L Appendix of Witness [excerpts] Statements Referenced in the Affidavit of Betty Steward and enclosed Statements in two volumes. It is evident that respondent judge could have already gotten an impression from these records adequate for him to make an initial determination of whether the accused was someone who should immediately be arrested in order to best serve the ends of justice. He could have determined whether such facts and circumstances existed as would lead a reasonably discreet and prudent person to believe that the extradition request was prima facie meritorious. In point of fact, he actually concluded from these supporting documents that probable cause did exist. In the second questioned Order, he stated: In the instant petition, the documents sent by the US Government in support of [its] request for extradition of herein respondent are enough to convince the Court of the existence of probable cause to proceed with the hearing against the extraditee. We stress that the prima facie existence of probable cause for hearing the petition and, a priori, for issuing an arrest warrant was already evident from the Petition itself and its supporting documents. Hence, after having already determined therefrom that a prima facie finding did exist, respondent judge gravely abused his discretion when he set the matter for hearing upon motion of Jimenez. Moreover, the law specifies that the court sets a hearing upon receipt of the answer or upon failure of the accused to answer after receiving the summons. In connection with the matter of immediate arrest, however, the word hearing is notably absent from the provision. Evidently, had the holding of a hearing at that stage been intended, the law could have easily so provided. It also bears emphasizing at this point that extradition proceedings are summary in nature. Hence, the silence of the Law and the Treaty leans to the more reasonable interpretation that there is no intention to punctuate with a hearing every little step in the entire proceedings. It is taken for granted that the contracting parties intend something reasonable and something not inconsistent with generally recognized principles of International Law, nor with previous treaty obligations towards third States. If, therefore, the meaning of a treaty is ambiguous, the reasonable meaning is to be preferred to the unreasonable, the more reasonable to the less reasonable x xx .

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Verily, as argued by petitioner, sending to persons sought to be extradited a notice of the request for their arrest and setting it for hearing at some future date would give them ample opportunity to prepare and execute an escape. Neither the Treaty nor the Law could have intended that consequence, for the very purpose of both would have been defeated by the escape of the accused from the requested state. 2. On the Basis of the Constitution Even Section 2 of Article III of our Constitution, which is invoked by Jimenez, does not require a notice or a hearing before the issuance of a warrant of arrest. It provides: 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 after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. To determine probable cause for the issuance of arrest warrants, the Constitution itself requires only the examination -- under oath or affirmation -- of complainants and the witnesses they may produce. There is no requirement to notify and hear the accused before the issuance of warrants of arrest. In Ho v. People and in all the cases cited therein, never was a judge required to go to the extent of conducting a hearing just for the purpose of personally determining probable cause for the issuance of a warrant of arrest. All we required was that the judge must have sufficient supporting documents upon which to make his independent judgment, or at the very least, upon which to verify the findings of the prosecutor as to the existence of probable cause. In Webb v. De Leon, the Court categorically stated that a judge was not supposed to conduct a hearing before issuing a warrant of arrest: Again, we stress that before issuing warrants of arrest, judges merely determine personally the probability, not the certainty of guilt of an accused. In doing so, judges do not conduct a de novo hearing to determine the existence of probable cause. They just personally review the initial determination of the prosecutor finding a probable cause to see if it is supported by substantial evidence. At most, in cases of clear insufficiency of evidence on record, judges merely further examine complainants and their witnesses. In the present case, validating the act of respondent judge and instituting the practice of hearing the accused and his witnesses at this early stage would be discordant with the rationale for the entire system. If the accused were allowed to be heard and necessarily to present evidence during the prima facie determination for the issuance of a warrant of arrest, what would stop him from presenting his entire plethora of defenses at this stage -- if he so desires -- in his effort to negate a prima facie finding? Such a procedure could convert the determination of a prima facie case into a full-blown trial of the entire proceedings and possibly make trial of the main case superfluous. This scenario is also anathema to the summary nature of extraditions. That the case under consideration is an extradition and not a criminal action is not sufficient to justify the adoption of a set of procedures more protective of the accused. If a different procedure were called for at all, a more restrictive one -- not the opposite -- would be justified in view of respondents demonstrated predisposition to flee. Since this is a matter of first impression, we deem it wise to restate the proper procedure: Upon receipt of a petition for extradition and its supporting documents, the judge must study them and make, as soon as possible, a prima facie finding whether (a) they are sufficient in form and substance, (b) they show compliance with the Extradition Treaty and Law, and (c) the person sought is extraditable. At his discretion, the judge may require the submission of further documentation or may personally examine the affiants and witnesses of the petitioner. If, in spite of this study and examination, no prima facie finding is possible, the petition may be dismissed at the discretion of the judge. On the other hand, if the presence of a prima facie case is determined, then the magistrate must immediately issue a warrant for the arrest of the extraditee, who is at the same time summoned to answer the petition and to appear at scheduled summary hearings. Prior to the issuance of the warrant, the judge must not inform or notify the potential extraditee of the pendency of the petition, lest the latter be given the opportunity

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

to escape and frustrate the proceedings. In our opinion, the foregoing procedure will best serve the ends of justice in extradition cases.

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knowledge of any fact which might indicate that the two students were probably guilty of the crime. What they had were the supposed positive identification of two alleged eyewitnesses, which is insufficient to justify the arrest without a warrant by the NBI. Indeed, at the time [the victim] was killed, these [NBI] agents were nowhere near the scene of the crime. When [the NBI agents] attempted to arrest [the students], the latter were not committing a crime nor were they doing anything that would create the suspicion that they were doing anything illegal. On the contrary, [they], under the supervision of the U.P. police, were taking part in a peace talk called to put an end to the violence on the campus. Nor can it be argued that the arresting officers had probable cause to believe accused-appellant to be guilty of the killing of the victim because they found a bloodstained t-shirt, a .38 caliber revolver, and two spent .38 caliber shells in his house. At the time accusedappellant was arrested, he was not doing anything overtly criminal. The alleged discovery of the gun came after his arrest. Moreover, as will presently be explained, the objects allegedly seized from accused-appellant were illegally obtained without a search warrant. Be that as it may, accused-appellant cannot now question the validity of his arrest without a warrant. The records show that he pleaded not guilty to the charge when arraigned on November 11, 1997. It is true that on August 28, 1997, he filed a petition for reinvestigation in which he alleged that he had been illegally detained without the benefit of a warrant of arrest. In its order, dated September 9, 1997, the trial court granted his motion and ordered the City Prosecutor to conduct a preliminary investigation and submit his findings within thirty (30) days thereof. On October 7, 1997, City Prosecutor Agapito S. Lu moved for the resetting of accused-appellants arraignment from October 8, 1997 to the first week of November, 1997 on the ground that the findings on the laboratory and ballistics examinations had not yet been received from the NBI. Accused-appellant did not object to the arraignment. The City Prosecutors request was, therefore, granted and the arraignment was reset to November 11, 1997. Nor did accused-appellant move to quash the information on the ground that his arrest was illegal and, therefore, the trial court had no jurisdiction over his person. Instead, on November 11, 1997, at the scheduled arraignment, accused-appellant, with the assistance of counsel, pleaded not guilty to the charge. On the same day, the trial court issued an order stating that, as a result of accused-appellants arraignment, his motion for preliminary investigation had become moot and academic and, accordingly, set the case for trial. Accused-appellant thus waived the right to object to the legality of his arrest. PEOPLE VS VINALON (2002) ISSUE: Whether or not the warrantless arrest was valid. RULING: Appellants aver that the police conducted the warrantless arrest based upon unconfirmed suspicion. On this score, we have previously held that a warrantless arrest may be made by police officers based on their personal knowledge culled from the victim herself who pointed to the suspect as the assailant at the time of the arrest.33In our view, the arrest of appellants done immediately after the incident was valid for it was made by the arresting officers after the victims of the robbery pointed to appellants as the malefactors. Accordingly, the search and seizure that ensued are valid as incidental to a lawful arrest. However, appellants seek to nullify the seizure of the objects allegedly taken from their possession. They claim they do not constitute admissible evidence as they were not duly receipted nor properly identified at the time they were taken. Cited in this regard is the case of People vs. Gesmundo, which stated that the officer seizing the property under the warrant must give a detailed receipt to the lawful occupant of the premises in whose presence the search and seizure was made. Note, however, that Gesmundo involved a search and seizure made pursuant to a warrant, and not to a situation of seizure incidental to warrantless arrest, as in the present case. Here, arresting officer Amigo testified that indeed he seized the disputed items from appellants but he did not issue a receipt.36 He claimed that the seized items were entered in the logbook of the security guard of the hospital where appellants were arrested. But this claim was unsubstantiated, as the logbook was not presented nor made part of the record of the case. Not only did the credibility of his testimony suffer thereby, but this circumstance also negated the probative force and value of the said items as evidence for the prosecution. (Lala Dulla) PEOPLE vs TOKOHISA KIMURA and AKIRA KIZAKI,

8.

WHEN ARREST MAY WITHOUT A WARRANT

BE

MADE

(a.) STRICT ENFORCEMENT OF RULE

PEOPLE VS CUBCUBIN (2001) ISSUE: Whether the warrantless arrest was valid. RULING: Accused-appellant contends that his arrest, effected on August 26, 1997 without a warrant, was illegal. On this point, Rule 113, 5(b) of the 1985 Rules on Criminal Procedure, as amended, provides: Sec. 5. Arrest without warrant; when lawful. A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; (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. Under 5(b), two conditions must concur for a warrantless arrest to be valid: first, the offender has just committed an offense and, second, the arresting peace officer or private person has personal knowledge of facts indicating that the person to be arrested has committed it. It has been held that personal knowledge of facts in arrests without a warrant must be based upon probable cause, which means an actual belief or reasonable grounds of suspicion. In this case, the arrest of accused-appellant was effected shortly after the victim was killed. The question, therefore, is whether there was probable cause for PO3 Rosal and SPO1 Malinao, Jr., the arresting officers, to believe that accused-appellant committed the crime. We hold that there was none. The two did not have personal knowledge of facts indicating that accused-appellant had committed the crime. Their knowledge of the circumstances from which they allegedly inferred that accused-appellant was probably guilty was based entirely on what they had been told by others, to wit: by someone who called the PNP station in San Antonio, Cavite City at about 3:30 in the morning of August 26, 1997 and reported that a man had been killed along Julian Felipe Boulevard of the said city; by an alleged witness who saw accused-appellant and the victim coming out of the Sting Cafe; by DanetGarcellano, waitress at the Sting Cafe, who said that the man last seen with the victim was lean, mustachioed, darkcomplexioned and was wearing a white t-shirt and a pair of brown short pants; by a tricycle driver named Armando Plata who told them that the physical description given by Garcellano fitted accusedappellant, alias Jun Dulce and who said he knew where accusedappellant lived and accompanied them to accused-appellants house. Thus, PO3 Rosal and SPO1 Malinao, Jr. merely relied on information given to them by others. In an analogous case, the police was informed that the accused was involved in subversive activities. On the basis of this information, the police arrested the accused and, in the course of the arrest, allegedly recovered an unlicensed firearm and some subversive materials from the latter. This Court held that the arresting officers had no personal knowledge since their information came entirely from an informant. It was pointed out that at the time of his arrest, the accused was not in possession of the firearm nor engaged in subversive activities. His arrest without a warrant could not be justified under 5(b). In another case, the accused, in a case of robbery with rape, were arrested solely on the basis of the identification given by one of the victims. This Court held the arrest to be illegal for lack of personal knowledge of the arresting officers. More recently, in Posadas v. Ombudsman, this Court, in declaring the arrest without warrant of two University of the Philippines students to be illegal, held: There is no question that this case does not fall under paragraphs (a) and (c). The arresting officers in this case did not witness the crime being committed. Neither are the students fugitives from justice nor prisoners who had escaped from confinement. The question is whether paragraph (b) applies because a crime had just been committed and the NBI agents had personal knowledge of facts indicating that [the students] were probably guilty. .... [T]he NBI agents in the case at bar tried to arrest [the students] four days after the commission of the crime. They had no personal

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

2004 Apr 27/2nd DivisionG.R. No. 130805D E C In the morning of June 27, 1994, Maj. Anso, head of Delta Group, Narcotics Command (NARCOM) I, North Metro District Command, Camp Karingal, Quezon City, received information from a confidential informant that a certain Koichi Kishi and Rey Plantilla were engaged in the selling of illegal drugs at the Cash and Carry Supermarket, Makati City. Acting on said information, Maj. Anso organized a team composed of SPO4 Baldovino, Jr., SPO1 Cabato and PO3 Cadoy to conduct surveillance of the area. A buy-bust operation was launched and PO3 Cadoy was designated to act as poseur-buyer and they prepared the buy-bust money consisting of one P500.00 bill and five pieces of P100.00 bill. At around 8:00 in the evening, Koichi and Rey arrived and were met by PO3 Cadoy and the informant. PO3 Cadoy gave the marked money worth P1,000.00 to Rey and Koichi who then handed him the shabu. PO3 Cadoy scratched his head as a pre-arranged signal of the consummation of the sale. While the team was approaching, PO3 Cadoy held Koichi by the hand while Rey scampered away. They learned from Koichi that his friends/suppliers will arrive the same evening to fetch him. Several minutes later, a white Nissan Sentra car driven by appellant Kimura with his co-appellant Kizaki seating at the passenger seat arrived at the parking area. Koichi pointed to them as the ones who will fetch him. Appellants remained inside the car for about ten to fifteen minutes. Then, a certain Boy driving a stainless jeep, without a plate number, arrived and parked the jeep two to three parking spaces away from the Sentra car. Boy approached the Sentra car and after a few minutes, appellants got out of their car. Appellant Kizaki went to the stainless jeep and sat at the passenger seat. Boy and appellant Kimura went to the rear of the Sentra car and opened its trunk. Appellant Kimura got a package wrapped in a newspaper and gave it to Boy who walked back to his jeep. While Maj. Anso and SPO4 Baldovino, Jr. were approaching to check what was inside the wrapped newspaper, appellant Kimura ran but was apprehended while Boy was able to board his jeep and together with appellant Kizaki who was seated at the passenger seat sped off towards South Superhighway. The police operatives then inspected the contents of the trunk and found packages of marijuana. They brought Koichi and appellant Kimura to the headquarters and turned over the seized marijuana to the investigator who made markings thereon. Maj. Anso reported the escape of appellant Kizaki to their investigation section. The seized packages which were contained in 3 sacks were brought to the PNP Crime Laboratory on June 29, 1994. Forensic Chemist Sonia Sahagun-Ludovico testified that the contents of the sacks weighed 40,768 grams and were positive to the test of marijuana. On June 29, 1994, appellant Kizaki while having dinner with his friends at the Nippon Ichi Restaurant located at Mabini, Malate, Manila was arrested by another NARCOM group led by Maj. Jose F. Dayco. Appellants defense is denial and alibi. Appellant Kizaki was arrested on June 29, 1994, two days after the Cash and Carry incident, in the Nippon Ichi Restaurant located at Mabini, Manila. He was having dinner with Lt. Col. Rodolfo Tan, Masami Y. Nishino, Anita Takeyama and Akiyoshi Takeyama. On June 27, 1997, the trial court rendered the herein assailed judgment finding accused Akira Kizaki and Tomohisa Kimura GUILTY beyond reasonable doubt for violation of Section 4 of Republic Act 6425, as amended by Republic Act 7659. ISSUE 1. WON the alleged warrantless arrest of appellant Kizaki was valid. 2. WON the conviction of all the accused were proper. REASON Rule 113, Section 5 of the Revised Rules of Criminal Procedure provides that a peace officer or a private person may, without a warrant, arrest a person only under the following circumstances: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and (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 is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

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The alleged crime happened on June 27, 1994 and appellant Kizaki was arrested on June 29, 1994 or two days after the subject incident. At the time appellant Kizaki was arrested, he was at a restaurant having dinner with a group of friends, thus, he was not committing or attempting to commit a crime. Neither was he an escaped prisoner whose arrest could be effected even without a warrant. It bears stressing that none of the arresting officers of appellant Kizaki was present on the night of June 27 where appellant Kizaki allegedly sold and transported marijuana and escaped, thus the arresting officers had no personal knowledge of facts or circumstances that appellant Kizaki committed the crime. None of the exceptions enumerated above was present to justify appellant Kizakis warrantless arrest. However, notwithstanding the unjustified warrantless arrest of appellant Kizaki, the records show that he did not raise such question before he pleaded to the offense charged. Neither did he move to quash the information on that ground before the trial court. He thus waived objection to the illegality of his arrest. Moreover, appellant Kizakis application for bail which was denied by the trial court likewise constitutes a waiver of his right to question whatever irregularities and defects which attended his arrest. Nevertheless, we find the other claims of appellants meritorious. In all prosecutions for violation of the Dangerous Drugs Act, the existence of all dangerous drugs is a sine qua non for conviction. The dangerous drug is the very corpus delicti of the crime of violation of the Dangerous Drugs Act. In this case, the prosecution failed to prove the crucial first link in the chain of custody. The prosecution witnesses PO2 Supa, SPO2 Madlon and PO3 Piggangay admitted they did not write their initials on the brick of marijuana immediately after allegedly seizing from accused-appellant outside the grocery store but only did so in their headquarters. The narcotics field test, which initially identified the seized item as marijuana, was likewise not conducted at the scene of the crime, but only at the narcotics office. There is thus reasonable doubt as to whether the item allegedly seized from accusedappellant is the same brick of marijuana marked by the policemen in their headquarters and given by them to the crime laboratory for examination. Moreover, although the three sacks of alleged marijuana were marked as A, B, C, the contents of these three sacks however had no markings when they were kept inside the supply room on June 28 since as Badua intimated, the contents of these three sacks were only marked when he brought the same to the PNP Crime Laboratory on June 29, 1994. The records of the case do not show that the police operatives complied with the procedure in the custody of seized prohibited and regulated drugs as embodied in the Dangerous Drugs Board Regulation No. 3 Series of 1979, i.e., any apprehending team having initial custody and control of said drugs and/or paraphernalia, should immediately after seizure or confiscation, have the same physically inventoried and photographed in the presence of the accused, if there be any, and/or his representative, who shall be required to sign the copies of the inventory and be given a copy thereof. In this case, there was no inventory made in the crime scene despite the fact that Maj. Anso testified that he saw eighteen packages neatly wrapped in a newspaper but the inventory was made already in the headquarters. SPO1 Badua testified that the marijuana confiscated from appellant Kimura was contained in three sacks. Although the defense raised by appellants Kimura and Kizaki were denial and alibi, respectively, which are inherently weak, we have repeatedly declared that the conviction of the accused must rest not on the weakness of the defense but on the strength of the prosecution. In fine, for failure of the prosecution to establish the guilt of both appellants beyond reasonable doubt, they must perforce be exonerated from criminal liability. DIMACUHA vs PEOPLE February 23, 2007/G.R. No. 143705/1st DIVISION The prosecution's evidence tend to show that at around 9:30 a.m. on 10 August 1995, SPO2 Melanio Valeroso, Senior Inspector Ely Pintang, SPO2 Ostan, and Edilberto Ogto were at the office of the Intelligence Unit of the Marikina Police Station, Metro Manila. While there, an informant or confidential informer or asset named Benito Marcelo arrived. He relayed to the policemen about a sale of illegal drugs to be done between 11:00 a.m. to 12:00 noon of the same day along the corner to J.M. Basa and Kapwa Streets, Calumpang, Marikina, Metro Manila. A team was formed. Then, the team dispatched to the said place.

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

At about 11:00 a.m. of that day, SPO2 Valeroso and SPO2 Vicente Ostan positioned themselves along J.M. Basa Street, while the other members were at Kapwa Street, Calumpang, Marikina. SPO2 Valeroso and SPO2 Ostan were fronting a house which was more or less 5 to 7 meters away from where they were. The house allegedly owned by Rudy Kalawang was where the sale of the illegal drugs was to take place. More or less thirty minutes later, two vehicles parked near the said house. In the car, there were 3 occupants (a female driver, a female companion, and a male companion) while in the jeep there were 2 (a male driver and a male companion). Moments later, the female driver of the car approached the driver of the other vehicle. After a few minutes of transaction, the jeep left. Thereafter, the female driver and her female companion went to the gate of the house while their male companion stayed at the car. At the said gate, Benito Marcelo met the female driver and her female companion. The female driver took out from her shoulder bag one small plastic bag x x x and gave it to Benito Marcelo. Immediately, SPO2 Valeroso and SPO2 Ostan approached the female driver, her female companion and Benito Marcelo. Aside from the small plastic bag that was handed to Benito Marcelo, SPO2 Valeroso also recovered suspected shabu inside the shoulder bag of the female driver "inserted inside the cover of a check booklet. Then, they were brought to the headquarters. The female driver was Ruby Dimacuja; her female companion was Juvy Carpio and their male companion was Michael Mallari. SPO2 Valeroso then marked the two transparent plastic bags recovered from Ruby Dimacuja by affixing his initials, placing the date and writing Ruby Dimacuja's name. A joint affidavit was executed. On 10 August 1995, Forensic Chemist Julita T. De Villa came up with the following findings: Qualitative examination conducted on the above stated specimen gave POSITIVE result to the test for methamphetamine hydrochloride a regulated drugs. RTC found that the evidence for the prosecution convincingly established petitioners guilt beyond reasonable doubt. Upon appeal, the CA, affirmed the decision of the trial court. ISSUE WON the arrest and search conducted on the person and belongings of the petitioner without a warrant was valid. REASON It is settled that in cases involving violations of the Dangerous Drugs Act, credence should be given to the narration of the incident by the prosecution witnesses especially when they are police officers who are presumed to have performed their duties in a regular manner, unless there be evidence to the contrary. Moreover, in the absence of proof of motive to falsely impute such a serious crime against the petitioner, the presumption of regularity in the performance of official duty, as well as the findings of the trial court on the credibility of witnesses, shall prevail over petitioners self-serving and uncorroborated claim of having been framed. Here, we found nothing in the record to justify why we should depart from the above rule as far as the testimonies of prosecution witnesses SPO2 Melanio Valeroso and SPO2 Vicente Ostan are concerned. As correctly noted by the trial court, there is no evidence of any improper motive on the part of the police officers who conducted the entrapment operation in this case. The prosecutions evidence established that an honest-to-goodness entrapment operation which has repeatedly been accepted to be a valid means of arresting violators of the Dangerous Drugs Law was conducted on August 10, 1995 against Dimacuha by the team composed of SPO2 Melanio Valeroso, SPO2 Vicente Ostan, Bello Borgueta, Jose Castelo, Jr. and Felipe Evangelista. After laboratory examination, the white crystalline substance contained in the small plastic sachets was found positive of methamphetamine hydrochloride, commonly known as shabu, a regulated drug. Petitioner now questions the credibility of the prosecution witnesses and their testimonies by giving stress over the non-presentation in court of Benito Marcelo, the professed police asset. She argues that the non-presentation of Marcelo was a denial of her constitutional right to meet and confront her accuser. The right of the petitioner to confront the witnesses against her is not affected by the failure of the prosecution to present the informant. The matter of presentation of witnesses is not for accused nor even for the trial court to decide. Discretion belongs to the prosecutor as to how the State should present its case. The prosecutor has the right to choose whom he would present as witnesses. Moreover, in illegal drugs cases, the presentation of an informant is not essential for

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conviction nor is it indispensable for a successful prosecution because his testimony would be merely corroborative and cumulative. Informants are usually not presented in court because of the need to hide their identity and preserve their invaluable service to the police. It is well-settled that except when the accused vehemently denies selling prohibited drugs and there are material inconsistencies in the testimonies of the arresting officers, or there are reasons to believe that the arresting officers had motives to falsely testify against the accused, or that only the informant was the poseur-buyer who actually witnessed the entire transaction, the testimony of the informant may be dispensed with as it will merely be corroborative of the apprehending officers' eyewitness accounts. The Constitution enshrines in the Bill of Rights 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. To give full protection to it, the Bill of Rights also ordains the exclusionary principle that any evidence obtained in violation of said right is inadmissible for any purpose in any proceeding. Here, the petitioner was caught in flagrante delicto while in the act of delivering 1.15 grams and in actual possession of another 10.78 grams of methamphetamine hydrochloride (shabu) as a result of an entrapment operation conducted by the police on the basis of information received from Benito Marcelo regarding petitioner's illegal drug trade. Petitioner's arrest, therefore, was lawful and the subsequent seizure of a bag of shabu inserted inside the cover of her checkbook was justified and legal in light of the prevailing rule that an officer making an arrest may take from the person arrested any property found upon his person in order to find and seize things connected with the crime. The seized regulated drug is, therefore, admissible in evidence, being the fruit of the crime. Petitioner next argues that no entrapment (buy-bust) operation ever took place as no payment was made. This is of no moment. In the crime of distribution of prohibited drugs, the payment of any consideration is immaterial. The mere act of distributing the prohibited drug to others is in itself a punishable offense. In Criminal Case No. 96-112-D-MK, petitioner was charged under Section 15, Article III of RA No. 6425 for IN VIEW WHEREOF, the instant petition is DENIED and the assailed CA decision and resolution are AFFIRMED. PEOPLE vs LAGUIO JR March 16, 2007/G.R. No. 128587 On 16 May 1996, at about 7:00 p.m., police operatives of the Public Assistance and Reaction Against Crime of the Department of Interior and Local Government, namely, Captain Margallo, Police Inspector Cielito Coronel and SPO3 Reynaldo Cristobal, arrested SPO2 Vergel de Dios, Rogelio Anoble and a certain Arellano, for unlawful possession of methamphetamine hydrochloride, a regulated drug popularly known as shabu. In the course of the investigation of the three arrested persons, Redentor Teck, alias Frank, and Joseph Junio were identified as the source of the drug. An entrapment operation was then set after the three were prevailed upon to call their source and pretend to order another supply of shabu. At around 11:00 p.m. that same date, Redentor Teck and Joseph Junio were arrested while they were about to hand over another bag of shabu to SPO2 De Dios and company. Questioned, Redentor Teck and Joseph Junio informed the police operatives that they were working as talent manager and gymnast instructor, respectively, of Glamour Modeling Agency owned by Lawrence Wang. Redentor Teck and Joseph Junio did not disclose their source of shabu but admitted that they were working for Wang. They also disclosed that they knew of a scheduled delivery of shabu early the following morning of 17 May 1996, and that their employer (Wang) could be found at the Maria Orosa Apartment in Malate, Manila. The police operatives decided to look for Wang to shed light on the illegal drug activities of Redentor Teck and Joseph Junio. Police Inspector Cielito Coronel and his men then proceeded to Maria Orosa Apartment and placed the same under surveillance. Prosecution witness Police Inspector Cielito Coronel testified that at about 2:10 a.m. of 17 May 1996, Wang, who was described to the operatives by Teck, came out of the apartment and walked towards a parked BMW car. On nearing the car, he (witness) together with Captain Margallo and two other police officers approached Wang, introduced themselves to him as police officers, asked his name and, upon hearing that he was Lawrence Wang, immediately frisked him and asked him to open the back compartment of the BMW car. When frisked, there was found inside the front right pocket of Wang and confiscated from him an unlicensed AMT Cal. 380 9mm automatic Back-up Pistol loaded with ammunitions. At the same time, the other members of the operatives searched the BMW car

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

and found inside it were the following items: (a) 32 transparent plastic bags containing white crystalline substance with a total weight of 29.2941 kilograms, which substance was later analyzed as positive for methamphetamine hydrochloride, a regulated drug locally known as shabu; (b) cash in the amount of P650,000; (c) one electronic and one mechanical scales; and (d) an unlicensed Daewoo 9mm Pistol with magazine. Then and there, Wang resisted the warrantless arrest and search. On 9 January 1997, Wang filed his undated Demurrer to Evidence, praying for his acquittal and the dismissal of the 3 cases against him for lack of a valid arrest and search warrants and the inadmissibility of the prosecutions evidence against him. Considering that the prosecution has not yet filed its Opposition to the demurrer, Wang filed an Amplification to his Demurrer of Evidence on 20 January 1997. On 12 February 1997, the prosecution filed its Opposition alleging that the warrantless search was legal as an incident to the lawful arrest and that it has proven its case, so it is now time for the defense to present its evidence. On 13 March 1997, the respondent judge, the Hon. Perfecto A.S. Laguio, Jr., issued the herein assailed Resolution granting Wangs Demurrer to Evidence and acquitting him of all charges for lack of evidence. ISSUE 1. WON the prosecution may appeal the trial courts resolution granting Wangs demurrer to evidence and acquitting him of all the charges against him without violating the constitutional proscription against double jeopardy; and 2. WON there was lawful arrest, search and seizure by the police operatives in this case despite the absence of a warrant of arrest and/or a search warrant. REASON An order granting an accuseds demurrer to evidence is a resolution of the case on the merits, and it amounts to an acquittal. Generally, any further prosecution of the accused after an acquittal would violate the constitutional proscription on double jeopardy. This constitutes an exception to the rule that the dismissal of a criminal case made with the express consent of the accused or upon his own motion bars a plea of double jeopardy. Under Rule 119, Section 23 of the Revised Rules of Criminal Procedure, as amended, the trial court may dismiss the action on the ground of insufficiency of evidence upon a demurrer to evidence filed by the accused with or without leave of court. In resolving accuseds demurrer to evidence, the court is merely required to ascertain whether there is competent or sufficient evidence to sustain the indictment or support a verdict of guilt. The appellate court may review dismissal orders of trial courts granting an accuseds demurrer to evidence. This may be done via the special civil action of certiorari under Rule 65 based on the ground of grave abuse of discretion, amounting to lack or excess of jurisdiction. Such dismissal order, being considered void judgment, does not result in jeopardy. Unfortunately, what petitioner People of the Philippines filed with the Court in the present case is an appeal by way of a petition for review on certiorari under Rule 45 raising a pure question of law, which is different from a petition for certiorari under Rule 65. In the dismissal of a criminal case upon demurrer to evidence, appeal is not available as such an appeal will put the accused in double jeopardy. Certiorari, however, is allowed. For being the wrong remedy taken by petitioner People in this case, this petition is outrightly dismissible. The Court cannot reverse the assailed dismissal order of the trial court by appeal without violating private respondents right against double jeopardy. Even assuming that the Court may treat an "appeal" as a special civil action of certiorari, which definitely this Court has the power to do, when there is a clear showing of grave abuse of discretion committed by the lower court, the instant petition will nevertheless fail on the merits as the succeeding discussion will show. There are actually two (2) acts involved in this case, namely, the warrantless arrest and the warrantless search. There is no question that warrantless search may be conducted as an incident to a valid warrantless arrest. The law requires that there be first a lawful arrest before a search can be made; the process cannot be reversed. However, if there are valid reasons to conduct lawful search and seizure which thereafter shows that the accused is currently committing a crime, the accused may be lawfully arrested in flagrante delicto without need for a warrant of arrest.

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Finding that the warrantless arrest preceded the warrantless search in the case at bar, the trial court granted private respondent's demurrer to evidence and acquitted him of all the three charges for lack of evidence, because the unlawful arrest resulted in the inadmissibility of the evidence gathered from an invalid warrantless search. Clearly therefore, the warrantless arrest of the accused and the search of his person and the car were without probable cause and could not be licit. The arrest of the accused did not fall under any of the exception to the requirements of warrantless arrests, (Sec. 5, Rule 113, Rules of Court) and is therefore, unlawful and derogatory of his constitutional right of liberty. x x x) For a warrantless arrest of an accused caught in flagrante delicto under paragraph (a) of Section 5 Rule 113 to be valid, two requisites must concur: (1) the person to be arrested must execute an overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime; and (2) such overt act is done in the presence or within the view of the arresting officer. The facts and circumstances surrounding the present case did not manifest any suspicious behavior on the part of Lawrence Wang that would reasonably invite the attention of the police. He was merely walking from the Maria Orosa Apartment and was about to enter the parked BMW car when the police operatives arrested him, frisked and searched his person and commanded him to open the compartment of the car, which was later on found to be owned by his friend, David Lee. He was not committing any visible offense then. Therefore, there can be no valid warrantless arrest in flagrante delicto under paragraph (a) of Section 5 Rule 113. It is settled that "reliable information" alone, absent any overt act indicative of a felonious enterprise in the presence and within the view of the arresting officers, is not sufficient to constitute probable cause that would justify an in flagrante delicto arrest. Neither may the warrantless arrest be justified under paragraph (b) of Section 5 Rule 113. What is clearly established from the testimonies of the arresting officers is that Wang was arrested mainly on the information that he was the employer of Redentor Teck and Joseph Junio who were previously arrested and charged for illegal transport of shabu. Teck and Junio did not even categorically identify Wang to be their source of the shabu they were caught with in flagrante delicto. Upon the duos declaration that there will be a delivery of shabu on the early morning of the following day, May 17, which is only a few hours thereafter, and that Wang may be found in Maria Orosa Apartment along Maria Orosa Street, the arresting officers conducted "surveillance" operation in front of said apartment, hoping to find a person which will match the description of one Lawrence Wang, the employer of Teck and Junio. These circumstances do not sufficiently establish the existence of probable cause based on personal knowledge as required in paragraph (b) of Section 5. WHEREFORE, the instant petition is DENIED. BELTRAN vs PEOPLE June 1, 2007/G.R. No. 175013 Following the issuance by President Gloria Macapagal-Arroyo of Presidential Proclamation No. 1017 on 24 February 2006 declaring a State of National Emergency, police officers arrested Beltran on 25 February 2006, while he was en route to Marilao, Bulacan, and detained him in Camp Crame, Quezon City. Beltran was arrested without a warrant and the arresting officers did not inform Beltran of the crime for which he was arrested. On that evening, Beltran was subjected to an inquest at the Quezon City Hall of Justice for Inciting to Sedition under Article 142 of the Revised Penal Code based on a speech Beltran allegedly gave during a rally in Quezon City on 24 February 2006, on the occasion of the 20th anniversary of the EDSA Revolution. The inquest was based on the joint affidavit of Beltrans arresting officers who claimed to have been present at the rally. The inquest prosecutor indicted Beltran and filed the corresponding Information with the Metropolitan Trial Court of Quezon City (MeTC). The authorities brought back Beltran to Camp Crame where, on 27 February 2006, he was subjected to a second inquest, with 1st Lt. Lawrence San Juan, this time for Rebellion. A panel of State prosecutors from the DOJ conducted this second inquest. The inquest was based on two letters, both dated 27 February 2006, of Yolanda Tanigue and of Rodolfo Mendoza. Tanigue is the Acting Executive Officer of the Criminal Investigation and Detection Group (CIDG), Philippine National Police (PNP), while Mendoza is the Acting Deputy Director of the CIDG. The letters referred to the DOJ for appropriate action the results of the CIDGs investigation implicating Beltran, the petitioners in G.R. Nos. 172074-76, San

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

Juan, and several others as leaders and promoters of an alleged foiled plot to overthrow the Arroyo government. The plot was supposed to be carried out jointly by members of the Communist Party of the Philippines (CPP) and the Makabayang Kawal ng Pilipinas (MKP), which have formed a tactical alliance. On 27 February 2006, the DOJ panel of prosecutors issued a Resolution finding probable cause to indict Beltran and San Juan as leaders/promoters of Rebellion. The panel then filed an Information with the RTC Makati. The Information alleged that Beltran, San Juan, and other individuals conspiring and confederating with each other, x x x, did then and there willfully, unlawfully, and feloniously form a tactical alliance between the CPP/NPA, renamed as Partidong Komunista ng Pilipinas (PKP) and its armed regular members as Katipunan ng Anak ng Bayan (KAB) with the Makabayang Kawal ng Pilipinas (MKP) and thereby rise publicly and take up arms against the duly constituted government, x x x. The Information was docketed as Criminal Case No. 06-452. ISSUE 1. WON the inquest proceeding against Beltran for Rebellion was valid. 2. WON there is probable cause to indict Beltran for Rebellion. REASON The Inquest Proceeding against Beltran for Rebellion is Void. Inquest proceedings are proper only when the accused has been lawfully arrested without warrant. Section 5, Rule 113 of the Revised Rules of Criminal Procedure provides the instances when such warrantless arrest may be effected, thus: Arrest without warrant; when lawful. A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; xxx In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with section 7 of Rule 112. The joint affidavit of Beltrans arresting officers states that the officers arrested Beltran, without a warrant, for Inciting to Sedition, and not for Rebellion. Thus, the inquest prosecutor could only have conducted as he did conduct an inquest for Inciting to Sedition and no other. Consequently, when another group of prosecutors subjected Beltran to a second inquest proceeding for Rebellion, they overstepped their authority rendering the second inquest void. None of Beltrans arresting officers saw Beltran commit, in their presence, the crime of Rebellion. Nor did they have personal knowledge of facts and circumstances that Beltran had just committed Rebellion, sufficient to form probable cause to believe that he had committed Rebellion. What these arresting officers alleged in their affidavit is that they saw and heard Beltran make an allegedly seditious speech on 24 February 2006. Indeed, under DOJ Circular No. 61, dated 21 September 1993, the initial duty of the inquest officer is to determine if the arrest of the detained person was made in accordance with the provisions of paragraphs (a) and (b) of Section 5, Rule 113. If the arrest was not properly effected, the inquest officer should proceed under Section 9 of Circular No. 61 which provides: Where Arrest Not Properly Effected. Should the Inquest Officer find that the arrest was not made in accordance with the Rules, he shall: recommend the release of the person arrested or detained; note down the disposition on the referral document; prepare a brief memorandum indicating the reasons for the action taken; and forward the same, together with the record of the case, to the City or Provincial Prosecutor for appropriate action. Where the recommendation for the release of the detained person is approved by the City or Provincial Prosecutor but the evidence on hand warrant the conduct of a regular preliminary investigation, the

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order of release shall be served on the officer having custody of said detainee and shall direct the said officer to serve upon the detainee the subpoena or notice of preliminary investigation, together with the copies of the charge sheet or complaint, affidavit or sworn statements of the complainant and his witnesses and other supporting evidence. For the failure of Beltrans panel of inquest prosecutors to comply with Section 7, Rule 112 in relation to Section 5, Rule 113 and DOJ Circular No. 61, we declare Beltrans inquest void. Beltran would have been entitled to a preliminary investigation had he not asked the trial court to make a judicial determination of probable cause, which effectively took the place of such proceeding. There is No Probable Cause to Indict Beltran for Rebellion. Probable cause is the existence of such facts and circumstances as would excite the belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted. To accord respect to the discretion granted to the prosecutor and for reasons of practicality, this Court, as a rule, does not interfere with the prosecutors determination of probable cause for otherwise, courts would be swamped with petitions to review the prosecutors findings in such investigations. However, in the few exceptional cases where the prosecutor abused his discretion by ignoring a clear insufficiency of evidence to support a finding of probable cause, thus denying the accused his right to substantive and procedural due process, we have not hesitated to intervene and exercise our review power under Rule 65 to overturn the prosecutors findings. This exception holds true here. Rebellion under Article 134 of the Revised Penal Code is committed By rising publicly and taking arms against the Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Republic of the Philippines or any part thereof, or any body of land, naval, or other armed forces or depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives. The elements of the offense are: That there be a (a) public uprising and (b) taking arms against the Government; and That the purpose of the uprising or movement is either (a) to remove from the allegiance to said Government or its laws: (1) the territory of the Philippines or any part thereof; or (2) any body of land, naval, or other armed forces; or (b) to deprive the Chief Executive or Congress, wholly or partially, of any of their powers and prerogatives. Thus, by its nature, rebellion is a crime of the masses or multitudes involving crowd action done in furtherance of a political end. The evidence before the panel of prosecutors who conducted the inquest of Beltran for Rebellion consisted of the affidavits and other documents attached to the CIDG letters. We have gone over these documents and find merit in Beltrans contention that the same are insufficient to show probable cause to indict him for Rebellion. The bulk of the documents consists of affidavits, some of which were sworn before a notary public, executed by members of the military and some civilians. Except for two affidavits, executed by a certain Ruel Escala, dated 20 Febuary 2006, and Raul Cachuela, dated 23 February 2006, none of the affidavits mentions Beltran. In his affidavit, Escala recounted that in the afternoon of 20 February 2006, he saw Beltran, Ocampo, Casio, Maza, Mariano, Virador, and other individuals on board a vehicle which entered a chicken farm in Bucal, Padre Garcia, Batangas and that after the passengers alighted, they were met by another individual who looked like San Juan. For his part, Cachuela stated that he was a former member of the CPP and that (1) he attended the CPPs 10th Plenum in 1992 where he saw Beltran; (2) he took part in criminal activities; and (3) the arms he and the other CPP members used were purchased partly from contributions by Congressional members, like Beltran, who represent party-list groups affiliated with the CPP. The allegations in these affidavits are far from the proof needed to indict Beltran for taking part in an armed public uprising against the government. What these documents prove, at best, is that Beltran was in Bucal, Padre Garcia, Batangas on 20 February 2006 and that 14 years earlier, he was present during the 1992 CPP Plenum. None of the affidavits stated that Beltran committed specific acts of promoting, maintaining, or heading a rebellion as found in the DOJ Resolution of 27 February 2006. None of the affidavits alleged that Beltran is a leader of a rebellion. Beltrans alleged presence during

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

the 1992 CPP Plenum does not automatically make him a leader of a rebellion. In fact, Cachuelas affidavit stated that Beltran attended the 1992 CPP Plenum as Chairman, Kilusang Mayo Uno (KMU). Assuming that Beltran is a member of the CPP, which Beltran does not acknowledge, mere membership in the CPP does not constitute rebellion. As for the alleged funding of the CPPs military equipment from Beltrans congressional funds, Cachuelas affidavit merely contained a general conclusion without any specific act showing such funding. Such a general conclusion does not establish probable cause. To repeat, none of the affidavits alleges that Beltran is promoting, maintaining, or heading a Rebellion. The Information in Criminal Case No. 06-452 itself does not make such allegation. Thus, even assuming that the Information validly charges Beltran for taking part in a Rebellion, he is entitled to bail as a matter of right since there is no allegation in the Information that he is a leader or promoter of the Rebellion. However, the Information in fact merely charges Beltran for conspiring and confederating with others in forming a tactical alliance to commit rebellion. As worded, the Information does not charge Beltran with Rebellion but with Conspiracy to Commit Rebellion, a bailable offense. WHEREFORE, we GRANT the petition. In G.R. No. 175013, we SET ASIDE the Order dated 31 May 2006 of the Regional Trial Court, Makati City, Branch 146 and the Order dated 29 August 2006 of the Regional Trial Court, Makati City, Branch 150. PEOPLE vs BOHOL December 10, 2008/G.R. No. 178198/3rd DIVISION The victim, Steven Alston Davis, a 31-year old British national was married to Evelyn Bohol in Hong Kong sometime in March 1997, when the latter was only 17 years old. Together with their two minor children, Steven and the appellant shared a house at No. 1823 Fifth Street, Villasol Subdivision in Angeles City, Pampanga. Steven spent his weekdays in his Makati apartment together with his friend Michael, and stayed with his family in Angeles City during weekends. At around two oclock in the morning, Jennifer (Michaels GF) and Michael was roused from sleep by three men with drawn handguns. These were later positively identified during the trial to be Arnold Adoray, Alexander Dagami, and accused-turned-state-witness Robin Butas. Alexander grabbed Jennifer by the hand and locked her inside Michaels bathroom. After taking Michaels keys, wallet, and cellular phone, the three men proceeded to Stevens room. Upon seeing the then sleeping Steven, Arnold fired four consecutive shots upon the former, hitting the latter at the back. The three men then hurriedly left the house. Thereafter, PNP personnel arrived at the scene of the crime; then an ambulance took Stevens body to the Makati Medical Center where he was pronounced dead on arrival. Michael was able to contact Evelyn through her mobile phone at around six oclock in the morning; the former immediately informed the latter of the killing of her husband. When Michael met Evelyn at ten oclock in the morning, he readily observed that appellant showed no signs of sadness or mourning despite the violent death of her husband. Subsequently, Arnold and Alexander were charged with murder on August 16, 2002. Trial thereafter ensued. The information was later amended charging the appellant, together with Robin, with the crime of murder, in conspiracy with Arnold and Alexander. Considering that at the time the appellant was arrested, the trial of the case, in which Arnold and Alexander were eventually convicted, was almost complete, a separate trial for the appellant was held. Upon arraignment, the appellant pleaded Not guilty. To ensure impartiality, the presiding judge inhibited himself, and the case of the appellant was re-raffled to Branch 141. Robin contended that the appellant was responsible for inducing/persuading him, Arnold, and Alexander to perpetrate the killing of Steven. He further stated that the appellant and Arnold (as in fact admitted to him by the appellant) were having a love affair, as he would oftentimes see them caress and kiss each other in the living room of their house in Angeles City. Robin also testified that, at about eleven oclock in the evening of July 17, 2002, appellant roused him from sleep and required him to join them. Robin then rode a white car together with Arnold, Alexander and the appellant, who acted as the guide in proceeding towards Stevens apartment. Upon reaching Stevens place, appellant gave Arnold the keys of the house, and forthwith ordered the group to alight from the car. Upon gaining entry, the three performed all the acts of execution. Riding the same car, Arnold, Alexander, Robin and Evelyn returned to Angeles City.

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On November 25, 2004, the RTC rendered a Decision finding the appellant guilty beyond reasonable doubt of murder, qualified by treachery, and sentenced her to suffer the penalty of reclusion perpetua. The court also made her liable to pay civil indemnity in the amount of P50,000.00. This decision was affirmed by the CA in its Decision dated December 28, 2006, with an added award of P50,000.00 representing moral damages due the heirs of Steven. ISSUE WON Evelyns conviction was proper. REASON We find no cogent reason to reverse the decision of the RTC, as affirmed by the CA. Nevertheless, we deem it proper to discuss the issues raised by the appellant. First, whether Robins testimony is credible. As enunciated in People v. Bocalan, the simple fact that Robin was originally charged with the appellant as a co-conspirator but was later discharged as a state witness and was no longer prosecuted for the crime charged does not render his testimony incredible or lessen its probative weight. While his testimony should be taken with caution, there is no reason why it cannot be given credence, it appearing that the same was corroborated by the testimony of his wife who happens to be appellants sister. Besides, appellant offered no evidence to show that Robin was actuated by an ill or devious motive to testify against her. Second, whether appellant was correctly convicted of murder. Treachery attended the killing of the victim. The killing occurred at around two oclock in the morning, an hour when generally people are asleep. The witnesses are also one in saying that upon entering Stevens room, the assailants immediately shot the former and caused the latters death. Both the testimonial and the physical sets of evidence also show that Steven was shot from behind. Evidently, the victim was caught unaware, totally defenseless against the armed invaders. While it is true that appellant did not directly participate in shooting Steven, nevertheless, evidence clearly shows that she was part of the conspiracy to commit the crime. Although admittedly, appellant was the wife of the victim, she could not be convicted of parricide. Records show that appellants relationship with the victim was not alleged in the information. Hence, she can be convicted only of murder. PEOPLE vs ALUNDAY September 3, 2008/G.R. No. 181546/3rd DIVISION Sometime in May 2000, the Intelligence Section of the Police Provincial Office of Mountain Province received a report from a confidential informant of an existing marijuana plantation within the vicinity of Mount Churyon, Sadanga, Mountain Province. Acting on the confidential information, Chief of the Intelligence Section of Mountain Province, Police Senior Inspector Andrew Cayad reported the matter to the Provincial Director, who immediately directed Cayad to lead a 70-men police contingent to make an operation plan. A joint operation from the whole Mountain Province Police Force was formed. The police operation was termed Operation Banana. On 2 August 2000, a contingent composed of policemen proceeded to Mount Churyon. Edward Sacgaca of the Philippine Information Agency (PIA) was invited to videotape the operation. They proceeded to Mount Churyon where they arrived at around 6 oclock in the morning of 3 August 2000. A group of policemen was dispatched to scout the area ahead of the others, while the rest stayed behind as back-up security. At a distance of 30 meters, Saipen, together with the members of his group, saw Ricardo Alunday, cutting and gathering marijuana plants. SPO1 Saipen and others approached Alunday and introduced themselves as members of the PNP. SPO1 Saipen, together with the other policemen, brought said accused-appellant to a nearby hut. Inside the hut, the operatives saw an old woman, an M16 rifle and some dried marijuana leaves. The other members of the raiding team uprooted and thereafter burned the marijuana plants, while the team from the Provincial Headquarters got some samples of the marijuana plants and brought the same to their headquarters. Emilia Gracia Montes, Forensic Analyst, PNP Crime Laboratory, Camp MBAdo Dangwa, La Trinidad, Benguet, received 17 pieces of fully grown suspected marijuana plants for laboratory examination and

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

analyses. She tested the subject specimens and found all to be positive for marijuana. After trial, the court a quo found accused-appellant guilty in Crim. Case No. 1528 but was acquitted in Crim. Case No. 1529. On 9 October 2007, CA affirmed the findings and conclusion of the RTC. ISSUE WON the conviction of accused was proper. REASON Indeed, in the case at bench, the prosecution was able to establish the following with conviction: (1) On 3 August 2000, a police continent raided a marijuana plantation located in Mount Churyon, Sadanga, Mountain Province. (2) In the course thereof, appellant was seen cutting and gathering marijuana plants from the premises. (3) There were no other plants except marijuana which were growing in the said area. (4) There was a hut apparently used by appellant and an old woman as a camp or temporary dwelling which existed alone within the area of the subject plantation. (5) The samples taken from the said plantation were all found to be positive for marijuana. On the face of these positive testimonies of the prosecution witnesses, appellants bare denials must necessarily fail. Aside from appellants preposterous claim that he was looking for squash in the subject area where only marijuana plants were planted, he did not advance any explanation for his presence thereat. Besides, prosecution witness Saipen categorically stated that he caught appellant red-handed harvesting marijuana plants. Thus, We find it facetious that appellant did not even know what a marijuana plant looked like. Appellant asserts that the plantation in question was maintained by the Cordillera Peoples Liberation Army which witness Cayad confirmed likewise. Thus, appellant theorizes that he could not have been the perpetrator of the crime charged. We find appellants assertion specious. A perusal of Section 9, Art. II of R.A. No. 6425 shows that a violation exists when a person shall cultivate, plant or culture on any medium Indian hemp, opium poppy (papaver somniferum) or any other plant which may hereafter be classified as dangerous drug. Indeed, ownership of the land where the marijuana seedlings are planted, cultivated and cultured is not a requisite of the offense. Accused-appellant further assails his conviction for being improper and illegal asserting that the court a quo never acquired jurisdiction over his person because he was arrested without a warrant and that his warrantless arrest was not done under any of the circumstances enumerated in Section 5, Rule 113 of the 1985 Rules of Court. He insists that the arresting officers had three months within which to secure a warrant from the time they received the information about an existing marijuana plantation in Mount Churyon, Sadanga, in May 2000, until they effected accused-appellants arrest on 3 August 2000. Also, accused maintains that the arresting officers failure to secure a warrant can never be justified by the urgency of the situation. Accused-appellants claim of irregularity in his arrest is, at the most, limp. Section 5(a) provides that a peace officer or a private person may, without a warrant, arrest a person when, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit, an offense. Section 5(a) refers to arrest in flagrante delicto. In flagrante delicto means caught in the act of committing a crime. This rule, which warrants the arrest of a person without warrant, requires that the person arrested has just committed a crime, or is committing it, or is about to commit an offense, in the presence or within view of the arresting officer. The Court has consistently ruled that any objection involving a warrant of arrest or the procedure for the acquisition by the court of jurisdiction over the person of the accused must be made before he enters his plea; otherwise, the objection is deemed waived. We have also ruled that an accused may be estopped from assailing the illegality of his arrest if he fails to move for the quashing of the information against him before his arraignment. And since the legality of an arrest affects

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only the jurisdiction of the court over the person of the accused, any defect in the arrest of the accused may be deemed cured when he voluntarily submits to the jurisdiction of the trial court. We have also held in a number of cases that the illegal arrest of an accused is not a sufficient cause for setting aside a valid judgment rendered upon a sufficient complaint after a trial free from error; such arrest does not negate the validity of the conviction of the accused. Herein, accused-appellant went into arraignment and entered a plea of not guilty. Thereafter, he actively participated in his trial. He raised the additional issue of irregularity of his arrest only during his appeal to this Court. He is, therefore, deemed to have waived such alleged defect by submitting himself to the jurisdiction of the court by his counsel-assisted plea during his arraignment; by his actively participating in the trial and by not raising the objection before his arraignment. Jurisprudence instructs us that in cases involving illegal drugs, credence is given to prosecution witnesses who are police officers, for they are presumed to have performed their duties in a regular manner, unless there is evidence to the contrary. Where there is nothing to indicate that the witnesses for the prosecution were moved by improper motives, the presumption is that they were not so moved and their testimony, therefore, is entitled to full faith and credit. In this case, the records are bereft of any indication which even remotely suggests ill motive on the part of the police officers.

(b) EXCEPTIONS TO STRICT ENCORCEMENT (1) ILLEGAL POSSESSION OF GUNS OR DRUGS

PEOPLE vs. CARLITO LINSANGAN y DIAZ 1991 Apr 16/1st Division/G.R. No. 88589D E C In early November, 1987, police operatives of the Drug Enforcement Unit, Police Station No. 3 of the Western Police District were informed that there was rampant drug using and pushing on Dinalupihan Street, Tondo, Manila. In light of these reports, Police Lieutenant Manuel Caeg and the other members of the unit organized a "buy-bust" operation on November 13, 1987 at Dinalupihan St., Tondo, Manila, to effect the arrest of the notorious drug pusher. Patrolman Roberto Ruiz, doing surveillance and arrest operations, was designated as the team leader, Pfc. Eleazar Lahom, Patrolmen Tomasito Corpuz and Jesus Saulog were designated as team members. On November 13, 1987 at 10 o'clock in the morning, before the group left the office for the area of operation, two (2) ten-peso bills were given to Pat. Corpuz who had marked them with his initials "T.C." He gave one of the marked bills to the informer. Then, they proceeded to Dinalupihan, using an owner-type jeep driver by Pat. Lahom. They were all in civilian clothes. The informer raised his hand as a signal to the appellant, who rose and walked toward them. They walked toward a wooden house with a wooden fence and a store on the left side. The informer told the appellant: "Kukuha ako." "Magkano?" The informer told the accused that he would buy P10 worth of marijuana while his "compadre" (referring to Patrolman Tomasito Corpuz), would also get P10 worth. P20 would fetch 10 cigarette sticks of handrolled marijuana at P2.00 per stick. The accused took the P20 from Pat. Corpuz and tucked it in his front waist. The accused went inside the wooden house and emerged shortly and handed over to Pat. Corpuz 10 cigarette sticks of handrolled marijuana. Pat. Corpuz took them with his right hand and at the same time he grabbed the accused with his other hand, saying: "Pulis ito, h'wag kang pumalag!" Pat. Ruiz saw the signal and rushed over to them. The accused tried to resist but was overpowered. The informer took to his heels. Pat. Ruiz frisked Linsangan and retrieved the marked ten-peso bills tucked in his waist. He asked the appellant to sign his name on the two P10 bills. They boarded the jeep and returned to the police station. Pat. Ruiz prepared a letter-request to the NBI for the laboratory examination of the ten suspected marijuana sticks. The appellant also put his initials "C.L." on each stick. The 10 handrolled cigarette sticks were referred to the NBI's forensic chemist, Carina Javier, for examination. She found them positive for marijuana. As soon as Pat. Ruiz received the NBI report on the examination, he booked the appellant for violation of the Dangerous Drugs Law and filed the case with the fiscal's office. RTC found accused guilty of the charge of drug pushing. ISSUE WON conviction was proper.

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

REASON The appeal has no merit. The court's assessment of the credibility of the prosecution's witnesses is entitled to great respect unless and until they are clearly shown to be arbitrary, which the defense failed to do. Although some inconsistencies were noted by the appellant in the affidavit of arrest prepared by Pat. Corpuz, they involve minor details which do not affect the over-all picture of the case. The alleged motive of the policemen for fabricating the charge against him and planning marked money on his person is not credible. The Court is unable to imagine that a lowly tricycle driver would have the temerity to defy a pair of armed policemen by refusing to give them a ride in his tricycle to pursue a law violator. The appellant was not denied due process during the custodial investigation. Although he was not assisted by counsel when he initialed the P10bills that the police found tucked in his waist, his right against selfincrimination was not violated for his possession of the marked bills did not constitute a crime; the subject of the prosecution was his act of selling marijuana cigarettes. His conviction was not based on the presence of his initials on the P10 bills, but on the fact that the trial court believed the testimony of the policemen that they arrested him while he was actually engaged in selling marijuana cigarettes to a member of the arresting party. PEOPLE vs. CRUZ 1988 August 30/2nd Division/G.R. No. 76728D E C On May 9, 1986, Lt. Noel Manabat, along with the elements of CRIG stationed at Camp Bagong Diwa, Taguig, Metro Manila acting on an intelligence information that about noon of that day a stolen car, coming from Quezon City, was to be sold somewhere in Magallanes, Makati, nabbed Romeo Fernandez and Joey Flores at the intersection of EDSA and Timog Street and brought them to headquarters. After some questioning, these 2 carnap suspects led the 8 man-CRlG team to 61 Mabituan Street, Masambong, Quezon City where they alleged the other members of the carnap gang were waiting for their shares of the proceeds from the sale of a carnapped vehicle. At said address, a sister of appellant, who owned the apartment, opened the door to the CRIG team. Inside the apartment, the team found appellant, sleeping on the floor, and gangmates Herminio Rivera and Lolito Timcang. The team recognized appellant because he was pointed to by Romeo Fernandez and Joey Flores. These two also informed the team that appellant was armed and, sure enough, the team found a clutch bag containing a caliber .38 paltik revolver, 1 live ammunition and a hand grenade under a bar, located 1 meter away from the slumbering appellant. After waking him up, Sgt. Reynaldo Cachuela confronted him at once with these exhibits. Appellant, in the presence of all the eight-man CRIG team and gangmates admitted ownership of the bag, firearm, bullet and grenade. The team arrested appellant and the rest of his group, as well as confiscated the items of the crime. On June 25, 1986, Lilian Lauron of the Legal Research Branch of the Firearms and Explosives Unit, Camp Crame, Quezon City, in answer to a police inquiry, determined that appellant Reynaldo Cruz y Santos was not a licensed holder of caliber .38 paltik revolver. As to hand grenades, she declared that only military personnel were authorized to carry them. The accused, upon the other hand, denied ownership or possession of the firearm and hand grenade, as well as the bag which contained the same. According to the accused, the bag and its contents belonged to Joey Flores and was "planted" by PC operatives. RTC convicted the accused of the crime he was charged which was Illegal Possession of Firearm and Ammunition. ISSUE WON the conviction was proper. REASON The unlicensed firearm and explosive were found when they arrested the accused and his companions for "carnapping' and not for illegal possession of firearm and ammunition. In Magoncia vs. Palacio, the Court ruled that an unlicensed firearm may be seized without the necessity of obtaining a search warrant. ". . . The illegality of the search is independent from the illegal possession of prohibited arms. The illegality of the search did not make legal an illegal possession of firearms. When in pursuing an illegal action or in the commission of a criminal offense, the offending police officers should happen to discover a criminal

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offense being committed by any person, they are not precluded from performing their duties as police officers for the apprehension of the guilty person and the taking of the corpus delicti." Finally, the accused, citing the case of Morales vs. Ponce Enrile, claims that the extrajudicial confession obtained from him during custodial investigation, is inadmissible in evidence against him for having been obtained in violation of his constitutional rights. We agree. It would appear that the police officers failed to comply with the strictures laid down by the Court in the cited case of Morales vs. Ponce Enrile, for police officers to follow in a custodial investigation in that, while Police Sgt. Jesus Ordinario testified that he had informed the accused of his constitutional rights to remain silent and to be represented by counsel and that the accused waived such rights, the waiver of constitutional rights was not made with the assistance or even in the presence of counsel. However, the conviction of the appellant is not based upon his extrajudicial confession alone. The evidence presented by the prosecution, even without said extrajudicial confession, is abundant, to support a finding of guilt. WHEREFORE, the judgment appealed from is AFFIRMED, with costs against the accused-appellant. (LOU ESTRELLADO) PP vs. SALVADOR PEAFLORIDA, JR., Y CLIDORO, G.R. No. 175604 April 10, 2008 FACTS: SPO3 Vicente Competente narrated that in his capacity as chief of the Investigation and Operation Division of the PNP station in Tigaon, Camarines Sur, that he received a tip from an asset that a bundle of marijuana was being transported by appellant to Huyonhuyon from another barangay in Tigaon, Camarines Sur. Major Domingo Agravante, chief of police of Tigaon, then organized a team composed of Competente as team leader, SPO2 Callo, SPO1 Portugal, PO3 Pillos and PO2 Edgar Latam. The team boarded the police mobile car and proceeded to Sitio Nasulan in Barangay Huyon-huyon. They overtook appellant who was on a bicycle. The police officers flagged appellant down and found marijuana wrapped in a cellophane and newspaper together with other grocery items. The amount of P1550.00 was also found in appellant's possession. The police officers confiscated these items and took photographs thereof. Appellant was then brought to the headquarters where he was booked. Major Lorlie Arroyo), a foresic chemist at the PNP Crime Laboratory Regional Office No. V, was presented as an expert witness to identify the subject marijuana leaves. She related that after taking a representative sample from the 928-gram confiscated dried leaves, the same was tested positive of marijuana. Appellant denied the accusations against him. That on his way home, they met Boyet Obias (Obias) who requested appellant to bring a package wrapped in a newspaper to Jimmy Gonzales, he placed it in the basket in front of his bicycle and Gonzales proceeded to the Tiagon town proper. On his way home, he was flagged down by the police and was invited to go with them to the headquarters. TC ruled that there was violation of Section 4, Article II of Republic Act (R.A.) No. 6425, otherwise known as The Dangerous Drugs Act of 1972, Hence, the instant case is now before this Court on automatic review. In assailing his conviction, appellant submits that there is doubt that he had freely and consciously possessed marijuana. one of the issues raised is that, upon receipt of the information from the asset, the police officers should have first investigated and tried to obtain a warrant of arrest against appellant, instead of arbitrarily arresting him. ISSUE: W/N the contention of the appellant is tenable? RULING: NO. Appellant resorts to a challenge on the validity of his arrest predicated on lack of a warrant of arrest. The OSG correctly justifies the failure to apply for an arrest warrant because at that point, time was of the essence in appellant's apprehension, noting in the same breath that there is no law requiring investigation and surveillance upon receipt of tips from assets before conducting police operations. The police was tipped off at around 1:00 p.m. that appellant was transporting marijuana to Huyon-huyon. Certainly, they had no time to secure an arrest warrant as appellant was already in transit and

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already committing a crime. The arrest was effected after appellant was caught in flagrante delicto. He was seen riding his bicycle and carrying with him the contraband, hence, demonstrating that a crime was then already being committed. Under the circumstances, the police had probable cause to believe that appellant was committing a crime. Thus, the warrantless arrest is justified. Add-ons Article II, Section 4 of R.A. No. 6425, as amended by R.A. No. 7659, states: SEC. 4. Sale, Administration, Delivery, Distribution and Transportation of Prohibited Drugs. The penalty of reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos shall be imposed upon any person who, unless authorized by law, shall sell, administer, deliver, give away to another, distribute, dispatch in transit or transport any prohibited drug, or shall act as broker in any of such transactions. x x x. Jurisprudence defines "transport" as "to carry or convey from one place to another." In the instant case, appellant was riding his bicycle when he was caught by the police. He admitted that he was about to convey the package, which contained marijuana, to a certain Jimmy Gonzales. Appellant, denies any knowledge that the package in his possession contained marijuana. But TC rejected his contention, noting that it was impossible for appellant not to be aware of the contents of the package because "marijuana has a distinct sweet and unmistakable aroma which would have alarmed him." Taking one step further, the appellate court went on to declare that being mala prohibita, one commits the crime under R.A. No. 6425 by mere possession of a prohibited drug without legal authority. Intent, motive or knowledge thereof is not necessary. Finally, the lower courts correctly sentenced appellant to suffer the penalty of reclusion perpetua and to pay a fine of one million pesos by virtue of the amendment to Section 4, R.A. No. 6425 by R.A. No. 7659. TCs decision is affirmed.

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ISSUE: W/N there was waiver of illegal arrest? RULING YES. Accused-appellant. corroborated by defense witness Melchor Mabini, contends that his arrest was an alleged warrantless one. However, such irregularity was only raised during trial. In regard to this delay, this Court has consistently ruled that any objection involving a warrant of arrest or procedure in the acquisition by the court of jurisdiction over the person of an accused must be made before he enters his plea, otherwise the objection is deemed waived. Verily, the illegal arrest of an accused is not sufficient cause for setting aside a valid judgment rendered upon a sufficient complaint after trial free from error; such arrest does not negate the validity of the conviction of the accused (People vs. Manzano, 248 SCRA 239 [1995]). And it is much too late in the day to complain about the warrantless arrest after a valid information had been filed and the accused arraigned and trial commenced and completed and a judgment of conviction rendered against him (People vs. Llenaresas, 248 SCRA 629 [1995]). As regards the evidentiary weight of accused-appellant's sworn statement wherein he confessed to the crime charged, and his verbal confession made before robbery victim, Marites Nas Atienza, we rule against the validity of the written confession in the absence of a counsel but uphold the admissibility of the verbal confession. In People vs. Deniega, 251 SCRA 626 [1995], we laid down the four fundamental requirements needed for admissibility of a confession, to wit: (1) the confession must be voluntary; (2) the confession must be made with the assistance of competent and independent counsel: (3) the confession must be express: and (4) the confession must be in writing. SC affirmed lower courts decision. PP vs. RUBEN TIDULA et al. Jul 16, 1998/G.R. No. 123273 FACTS: On August 31, 1992, in Oton, Iloilo, Tidula et al. confederating and helping one another, taking advantage of their superior strength and nighttime to better realize their purpose, by means of force and violence upon person, entered the residence of Mark Michael Lazaro Zulueta, and once inside, did then and there wilfully, unlawfully and feloniously ransack, take, steal and carry away with intent to gain one (1) Sony cassette tape recorder worth P3,000.00, two (2) jackets worth P4,000.00, one (1 ) Citizen's men's wrist watch worth P1,500.00 and undetermined cash of coins, all owned and belonging to Mark Michael Lazaro Zulueta in the total amount of eight thousand five hundred (P8,500.00) pesos, and on the occasion or by reason of said robbery, Tidula et al., armed with bladed weapons, with a decided purpose to kill, did then and there wilfully, unlawfully and feloniously stab and twist the head of Mark Michael Lazaro Zulueta with the weapons which they were then provided, thereby hitting him and inflicting injuries which caused his death. At about 6:45 in the evening of August 31, 1992 when the spouses returned to their house from their grocery store at the public market, they found Mark Michael Lazaro Zulueta, inside the comfort room lying on his stomach, both hands tied behind his back, his mouth stuffed with handkerchief, bloody from several stab wounds, dead. On September 7, 1992, during the police investigation, Pablo Genosa confessed to the police authorities all he knew about the subject incident. This is his story. On August 21, 1992 at about 11:00 o'clock in the morning, co-accused Ruben Tidula, Domingo Gato and Victorio Tidula went to his house. The three invited him to join in a transaction to kill Mark Michael Lazaro Zulueta and his mother Marilyn Manubag at the instance of the accused Salvacion Gato. The three informed him that Salvacion Gato would pay P2,000.00 for the accomplishment of the purpose. Pablo Genosa complained telling the three that the amount [was] too meager for the work to be done but he was informed that they would also stage a hold-up from which he could get more. Pablo Genosa agreed to join the four male accused. They decided to carry out the plan on August 24, 1992 between 7:30 [and] 8:30 in the evening after the market day of Oton, anticipating that Marilyn Manubag would bring home plenty of money as proceeds of her sale on that day. The defense contends that "the accusations against the accused were purely framed up and that the sworn statement of . . . Pablo

(c) WAIVER OF ILLEGALITY OF ARREST

PP vs. PANFILO CABILES Jan 16, 1998/ G.R. No. 112035 FACTS: Marites Atienza, is a housewife whose husband was abroad. On the eve of November 5, 1989, she was asleep with her 1-year old daughter, inside her room at her house. While, Luzviminda Aquino, Marites' housemaid, was sleeping on a sofa, 3 to 4 steps away. At around 1:15 o'clock on the morning of November 5, 1989, Cabiles suddenly barged into the house destroying the kitchen door, thus enabling him to reach the lock inside. Cabiles suddenly poked a 6-inch kitchen knife on the right side of Marites' neck. He then placed masking tape on her mouth and ordered her to bring out her money and jewelry, which she did. Luzviminda was awakened by the crying of the baby. When she was about to shout, the man poked the knife on her left side, causing her an injury. The man then went to the store and ransacked the same in search for more valuables.Cabiles likewise succeeded in raping Luzviminda. Later, the police officers and Maritess brother, went to a sash factory warehouse at the Marivic Compound, Kalookan City. They saw accused-appellant Cabiles sleeping on a bench and was wearing a bracelet which the former recognized as the bracelet taken from Marites. Also recovered from him is a wristwatch with the brand name "Chanel" which was the one taken from Marites. Marites saw accused-appellant at the Kalookan City Police Station. The latter admitted his guilt As regards his sworn statement containing a confession to the commission of the crime, he said he was forced by the policemen at the station to execute the same. He did not read it and was just forced to sign it. He was not assisted by counsel during that time. Accused-appellant. corroborated by defense witness Melchor Mabini, contends that his arrest was an alleged warrantless one. The trial court found no merit in Cabiles defense, and convicted the latter for the crime of robbery with rape. CA affirmed.

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

Genosa was a fabrication." Interposing alibi, the defense presented fourteen (14) witnesses Relying on the testimony of Pablo Genosa, the accused who was discharged as a state witness, the trial court ruled in favor of the prosecution. Hence, this appeal direct to this Court. One of the issues raised by the defense is that the court erred in not ruling against the issuance of warrants of arrest in violation of the constitutional rights of the accused. ISSUE W/N the contention of the defense is tenable? RULING NO. The appeal is bereft of merit. Appellants assail the legality of their arrest, emphasizing that Pablo Genosa, Victorio Tidula and Jose Prior were all arrested without warrants. Also, the warrant for the arrest of Ruben Tidula and Domingo Gato was dated September 12, 1992, which was four days later than the date on which it was served, September 8, 1992. Appellants likewise claim that the warrant for the arrest of Salvacion Gato, which was dated September 5, 1992, was supposedly based on the Sworn Statement of Pablo Genosa which was, however, dated two days later, September 7, 1992. It must be noted, though, that while the photocopy of the warrant for the arrest of Salvacion Gato (submitted by accused-appellants) is dated September 5, 1992, a careful examination of the records shows that the original copy of the said warrant is dated September 8, 1992. It is a basic rule of evidence that the original copy prevails over a mere photocopy. And assuming that the aforementioned warrants were indeed defective or void, appellants failed to make a timely objection thereto, that is, prior to the entry of their plea. In People v. Salvatierra, the Court ruled: "Appellant is estopped from questioning the legality of his arrest considering that he never raised this before entering his plea. Any objection involving a warrant of arrest or the acquisition of jurisdiction over the person of an accused must be made before he enters his plea; otherwise the objection is deemed waived." Consequently, the defects in the arrest warrants and in the resulting arrests were cured by appellants' voluntary submission to the jurisdiction of the trial court, as manifested by the individual pleas they entered during their arraignment and by their active participation in the trial thereafter, without any mention of such defects. In the present case, we sustain the finding of the trial court that appellants are guilty of the special complex crime of robbery with homicide. The prosecution has sufficiently proven that appellants, with intent to gain, asported one Sony cassette tape recorder worth P3,000, two jackets worth P4,000 and one Citizen wristwatch worth P1,500, and that the said items belonged to the household of Marilyn Manubag. It is also evident that homicide was committed on the same occasion. TCs decision is AFFIRMED, but the award of moral damages is DELETED. PP vs. NOEL NAVARRO Oct 7, 1998/G.R. No. 129566 FACTS: On January 5, 1991, around 9:00pm, Jose Rabago went to Enoc Theater located at Poblacion, Alaminos, Pangasinan to view some stationary pictures exhibited outside the theater. When he was about to go home on board his motorcycle, he was invited by Ferdinand Rabadon, who was drinking beer inside Adela's Restaurant, to join him. Rabago obliged. Rabadon invited Rabago to Five Doors Disco but the latter opted to go home Rabadon, who was still on the motorcycle holding its handle bars, offered to drive Rabago home. When Rabago was about to mount the motorcycle, he was pushed by one Ming Basila, causing him to fall on his buttocks, after which Basila shot Rabadon twice at the back. While Rabadon was already lying down with his leg pinned by the motorcycle, appellant shot him three (3) times. "Rabago ran away, and saw Virgilio Rabadon, a policeman, to whom he reported Rabadon's killing. On January 6, 1991, Rabago was

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investigated by policeman Rolando Rabadon but he said that he did not see anything. During the hearing of the case, Rabago explained that he did not divulge the identities of the assailants for fear of his life. He claimed that some policemen in Alaminos, Pangasinan [were] members of the Aguila Gang which killed people. The gang [was] allegedly led by one Ramon Navarro, appellant's brother. NBI interrogated Rabago on January 3, 1994, at which time, Rabago named Navarro and Ming Basila as the authors of Rabadon's killing. Three (3) years later, on January 5, 1994, at 8:00pm, a composite team of the National Bureau of Investigation led by Atty. Teofilo Gallang served a search warrant and warrant of arrest to one Ramon Navarro, brother of accused-appellant in his residence and failing to find Ramon Navarro, the composite team of the NBI went to the house where accused-appellant was staying where they saw him (Noel Navarro). Accused-appellant Navarro was searched, but [nothing was found] in his body. Accused-appellant was arrested right then and there without any warrant of arrest shown to him by the NBI. In fact, it was admitted that the NBI composite team at the time [had] no warrant of arrest against accused-appellant. TC found the appellant guilty of murder, based on Jose Rabago's testimony as a prosecution witness, which it found to be positive, credible and sufficient to support a judgment of conviction. To resolve the appeal fully, one of the issues raised by Navarro is on the defenses of denial and illegality of arrest, and thus he was denied of due process.. ISSUE W/n the contention of Navarro is correct? RULING NO. The appeal is devoid of merit. While the appellant denied that he killed Ferdinand Rabadon, he did not offer any evidence to prove his assertion; instead, his testimony focused on the circumstances surrounding his alleged illegal arrest and subsequent detention. Contrary to the appellant's assertion that he was denied due process by virtue of his alleged illegal arrest, such claim is negated by his voluntary submission to the jurisdiction of the trial court, as manifested by the voluntary and counsel-assisted plea he entered during arraignment and by his active participation in the trial thereafter. [People v Tidula, GR No. 123273, July 16, 1998; People v Montilla, GR No. 123872, January 30, 1998; People v Rivera, 245 SRCA 421, June 29, 1995; People v Codilla, 224 SRCA 104 June 30, 1993.] Faced with the detailed, clear and consistent testimony of Jose Rabago, against whom no ill motive was imputed, Appellant Navarro, whom the former pointed to as one of the killers of Ferdinand Rabadon, cannot escape conviction merely by issuing an unsubstantiated denial and resorting to constitutional guarantees which he has already voluntarily waived. The appeal is denied and TCs decision is affirmed.

(d) EFFECTS ARREST

OF

DECLARTION

OF

ILLEGAL

PP vs. RODOLFO BIYOC y WENCESLAO G.R. No. 167670 December 7, 2007 FACTS: At 4PM of December 5, 2000, private complainant AAA (as used in the full text of the decision) was in a room on the second floor of the family house taking care of her one-year-old sister. Her father, herein appellant, entered the room and touched her genitals, after which he told her to lie down on the floor. Overcome by fear, AAA did lie down on the floor as told. Appellant at once pulled her short pants down and touched her genitals again, after which he went on top of her and tried to insert his penis into her vagina. Appellant was not able to fully penetrate AAAs vagina, however, as her elder sister BBB (as used by SC) went up the second floor and saw appellant sitting in front of AAA who was lying down, face up. Appellant immediately warned BBB not to tell their mother about what she just saw.5 After BBB left, appellant inserted his penis inside AAAs vagina.

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

BBB lost no time to report that same day to her mother CCC, live-in partner of appellant, what she saw. CCC thus immediately confronted AAA who did confirm that appellant had inserted his penis inside her vagina that afternoon, and that appellant had been doing the same act to her since she was nine years old. Incensed, CCC accompanied AAA the following day, December 6, 2000, DSWD to report the incident, and also to the police officers. PO1 Javier, together with AAA and CCC thereafter proceeded to the family home, and on their way, they met appellant. PO1 Javier at once informed him of his rights, arrested him, and brought him to the police station. AAAs and CCCs statements were thereupon taken. TC ruled that appellant is guilty for the crime of rape. In his Brief, appellant raised the issue that the trial court failed to consider the fact that the accuseds arrest was legally objectionable. He claims that his arrest was illegal because a "warrantless arrest was effected even before the statement of the private complainant was taken." ISSUE W/N the contention of the accused-appellant is correct? RULING (a) NO. Objections to the legality of arrests must, however, be made prior to the entry of plea at arraignment; otherwise, they are considered waived. We have also ruled that an accused may be estopped from assailing the illegality of his arrest if he fails to move for the quashing of the information against him before his arraignment. And since the legality of an arrest affects only the jurisdiction of the court over the person of the accused, any defect in his arrest may be deemed cured when he voluntarily submitted to the jurisdiction of the trial court as what was done by the appellants in the instant case. Not only did they enter their pleas during arraignment, but they also actively participated during the trial which constitutes a waiver of any irregularity in their arrest. In the present case, appellant failed to question the illegality of his arrest before entering his plea, hence, he is deemed to have waived the same. SC ruled appellant is guilty of Simple Rape, aggravated by relationship. Decisions of TC and CA were affirmed. ARSENIO VERGARA VALDEZ vs. PEOPLE OF THE PHILIPPINES, 538 SCRA 61/ November 23, 2007 FACTS : Bautista testified that at around 8:00PM of March 17, 2003, he was conducting the routine patrol along the National Highway La Union together with Aratas and Ordoo when they noticed petitioner, lugging a bag, alight from a mini-bus. The tanods observed that petitioner, who appeared suspicious to them, seemed to be looking for something. They thus approached him but the latter purportedly attempted to run away. They chased him, put him under arrest and thereafter brought him to the house of Barangay Captain Orencio Mercado (Mercado) where he, as averred by Bautista, was ordered by Mercado to open his bag. Petitioners bag allegedly contained a pair of denim pants, eighteen pieces of eggplant and dried marijuana leaves wrapped in newspaper and cellophane. It was then that petitioner was taken to the police station for further investigation. Police Inspector Laya, the forensic chemist who conducted the examination of the marijuana allegedly confiscated from petitioner. Laya maintained that the specimen submitted to him for analysis, a sachet of the substance weighing 23.10 grams and contained in a plastic bag, tested positive of marijuana. The charges were denied by petitioner. TC ruled in favor of the prosecution. In appeal, petitioner prays for his acquittal and asserts that his guilt of the crime charged had not been proven beyond reasonable doubt. He argues, albeit for the first time on appeal, that the warrantless arrest effected against him by the barangay tanod was unlawful and that the warrantless search of his bag that followed was likewise contrary to law. Consequently, he maintains, the marijuana leaves purportedly seized from him are inadmissible in evidence for being the fruit of a poisonous tree. ISSUE W/N there was an illegal arrest? YES What is the effect of the declaration of illegal arrest? RULING At the outset, we observe that nowhere in the records can we find any objection by petitioner to the irregularity of his arrest before his arraignment. Considering this and his active participation in the trial of (b)

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the case, jurisprudence dictates that petitioner is deemed to have submitted to the jurisdiction of the trial court, thereby curing any defect in his arrest. The legality of an arrest affects only the jurisdiction of the court over his person. Petitioners warrantless arrest therefore cannot, in itself, be the basis of his acquittal. However, to determine the admissibility of the seized drugs in evidence, it is indispensable to ascertain whether or not the search which yielded the alleged contraband was lawful. The search, conducted as it was without a warrant, is justified only if it were incidental to a lawful arrest. Evaluating the evidence on record in its totality, as earlier intimated, the reasonable conclusion is that the arrest of petitioner without a warrant is not lawful as well. Section 5, Rule 113 of the Rules on Criminal Procedure provides the only occasions on which a person may be arrested without a warrant, to wit: Section 5. Arrest without warrant; when lawful. A peace officer or a private person may, without a warrant, arrest a person: When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and 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.

(c)

It is obvious that based on the testimonies of the arresting barangay tanod, not one of these circumstances was obtaining at the time petitioner was arrested. By their own admission, petitioner was not committing an offense at the time he alighted from the bus, nor did he appear to be then committing an offense. The tanod did not have probable cause either to justify petitioners warrantless arrest. For the exception in Section 5(a), Rule 113 to operate, this Court has ruled that two (2) elements must be present: (1) the person to be arrested must execute an overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime; and (2) such overt act is done in the presence or within the view of the arresting officer. Here, petitioners act of looking around after getting off the bus was but natural as he was finding his way to his destination. That he purportedly attempted to run away as the tanod approached him is irrelevant and cannot by itself be construed as adequate to charge the tanod with personal knowledge that petitioner had just engaged in, was actually engaging in or was attempting to engage in criminal activity. More importantly, petitioner testified that he did not run away but in fact spoke with the barangay tanod when they approached him. Indeed, the supposed acts of petitioner, even assuming that they appeared dubious, cannot be viewed as sufficient to incite suspicion of criminal activity enough to validate his warrantless arrest. If at all, the search most permissible for the tanod to conduct under the prevailing backdrop of the case was a stop-and-frisk to allay any suspicion they have been harboring based on petitioners behavior. However, a stop-and-frisk situation, following Terry v. Ohio, must precede a warrantless arrest, be limited to the persons outer clothing, and should be grounded upon a genuine reason, in light of the police officers experience and surrounding conditions, to warrant the belief that the person detained has weapons concealed about him. RULING IN ISSUE no. 2 Accordingly, petitioners waiver of his right to question his arrest notwithstanding, the marijuana leaves allegedly taken during the search cannot be admitted in evidence against him as they were seized during a warrantless

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

search which was not lawful. As we pronounced in People v. Baclaan A waiver of an illegal warrantless arrest does not also mean a waiver of the inadmissibility of evidence seized during an illegal warrantless arrest. The following searches and seizures are deemed permissible by jurisprudence: (1) search of moving vehicles (2) seizure in plain view (3) customs searches (4) waiver or consent searches (5) stop and frisk situations (Terry Search) and (6) search incidental to a lawful arrest. The last includes a valid warrantless search and seizure pursuant to an equally valid warrantless arrest, for, while as a rule, an arrest is considered legitimate if effected with a valid warrant of arrest, the Rules of Court recognize permissible warrantless arrests, to wit: (1) arrests in flagrante delicto, (2) arrests effected in hot pursuit, and, (3) arrests of escaped prisoners. When petitioner was arrested without a warrant, he was neither caught in flagrante delicto committing a crime nor was the arrest effected in hot pursuit. Verily, it cannot therefore be reasonably argued that the warrantless search conducted on petitioner was incidental to a lawful arrest. In its Comment, the Office of the Solicitor General posits that apart from the warrantless search being incidental to his lawful arrest, petitioner had consented to the search. We are not convinced. As we explained in Caballes v. Court of Appeals Doubtless, the constitutional immunity against unreasonable searches and seizures is a personal right which may be waived. The consent must be voluntary in order to validate an otherwise illegal detention and search, i.e., the consent is unequivocal, specific, and intelligently given, uncontaminated by any duress or coercion. Hence, consent to a search is not to be lightly inferred, but must be shown by clear and convincing evidence. The question whether a consent to a search was in fact voluntary is a question of fact to be determined from the totality of all the circumstances. Relevant to this determination are the following characteristics of the person giving consent and the environment in which consent is given: (1) the age of the defendant; (2) whether he was in a public or secluded location; (3) whether he objected to the search or passively looked on; (4) the education and intelligence of the defendant; (5) the presence of coercive police procedures; (6) the defendant's belief that no incriminating evidence will be found; (7) the nature of the police questioning; (8) the environment in which the questioning took place; and (9) the possibly vulnerable subjective state of the person consenting. It is the State which has the burden of proving, by clear and positive testimony, that the necessary consent was obtained and that it was freely and voluntarily given. A final word. We find it fitting to take this occasion to remind the courts to exercise the highest degree of diligence and prudence in deliberating upon the guilt of accused persons brought before them, especially in light of the fundamental rights at stake. Here, we note that the courts a quo neglected to give more serious consideration to certain material issues in the determination of the merits of the case. We are not oblivious to the fact that in some instances, law enforcers resort to the practice of planting evidence to extract information or even harass civilians. Accordingly, courts are duty-bound to be [e]xtra vigilant in trying drug cases lest an innocent person be made to suffer the unusually severe penalties for drug offenses. In the same vein, let this serve as an admonition to police officers and public officials alike to perform their mandated duties with commitment to the highest degree of diligence, righteousness and respect for the law. SC reversed the decision of the lower courts and acquitted the accused. PP vs. JERRY SANTOS Y MACOL AND RAMON CATOC Y PICAYO

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FACTS: On March 8, 2003, the SDEU operatives of the Pasig City Police conducted a buy-bust operation in a residential area along Dr. Sixto Antonio Avenue, on the basis of reports that a certain alias Monching Labo was selling illegal drugs in the said locality. Accompanied by a confidential informant, the police team, proceeded to the target area at around 1:15 to 1:20 a.m. PO3 Carlo Luna was to act as the poseur-buyer, whereas the other members of the team were to serve as his backup. The informant then pointed to two persons standing along the target area, one of whom was Monching Labo, later identified as appellant Ramon Catoc y Picayo. After approaching, the informant introduced PO3 Luna as a shabu customer to one of the persons, later identified as appellant Jerry Santos y Macol. Appellant Santos then asked PO3 Luna how much worth of shabu he was buying and asked for the money. PO3 Luna gave appellant Santos the buy-bust money consisting of a pre-marked P100 bill. Santos handed this money to appellant Catoc, who took out from his pocket a sealed transparent plastic sachet containing a white crystalline substance, which he handed back to appellant Santos. When Santos gave the plastic sachet to PO3 Luna, the latter nabbed the former and introduced himself as a policeman. Two (2) heat-sealed transparent plastic sachets with markings "CEL/JMS 030803 and RPC/LTM 030803" containing 0.03 gram of white crystalline substance and marked as A and B respectively. TC ruled in favor of the prosecution. CA affirmed TCs decision. Appellants contend that the trial court erred in convicting them, as their guilt was not proven beyond reasonable doubt, considering that the prosecution failed to prove that a buy-bust operation took place and that their arrests without warrant were not legally effected. ISSUE W/N the arrest was legally effected? RULING YES. The claim of appellants that their warrantless arrests were illegal lacks merit. The Court notes that nowhere in the records did we find any objection by appellants to the irregularity of their arrests prior to their arraignment. We have held in a number of cases that the illegal arrest of an accused is not a sufficient cause for setting aside a valid judgment rendered upon a sufficient complaint after a trial free from error; such arrest does not negate the validity of the conviction of the accused. It is much too late in the day to complain about the warrantless arrest after a valid information has been filed, the accused arraigned, trial commenced and completed, and a judgment of conviction rendered against him. Nevertheless, our ruling in People v. Cabugatan provides that: The rule is settled that an arrest made after an entrapment does not require a warrant inasmuch as it is considered a valid warrantless arrest pursuant to Rule 113, Section 5(a) of the Rules of Court, which states: SEC. 5. Arrest without warrant; when lawful. - A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense. As we have already declared the legality of the buy-bust operation that was conducted by the police, it follows that the subsequent warrantless arrests were likewise legally effected. Furthermore, any search resulting from the lawful warrantless arrests was also valid, because the appellants committed a crime in flagrante delicto; that is, the persons arrested committed a crime in the presence of the arresting officers. SC affirmed the decision of the lower courts.

9.

IMMUNITY FROM ARREST MEMBERS OF CONGRESS 10. PRIVACY (ART III, SECTION 2)
OPLE vs. TORRES, 293 scra 141 (1998)

FACTS: Senator Ople is challenging the validity of A.O. No. 308 issued by Pres. Ramos entitled Adoption of a National Computerized Identification Reference System. The Order provides for a Population Reference Number (PRN) for every individual through the use of Biometrics Technology and computer

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

application design. Petitioner argues that it constitutes impermissible intrusion on the citizens right to privacy. ISSUE W/N the contention of the petitioner is correct? RULING YES. Sections 1, 2, 3, 6, 8 and 17 of the Bill of rights in various ways protect the right to privacy. As it is a fundamental right, it is the burden of the government to show that its restriction is justified by some compelling state interest and the restriction is narrowly drawn to protect that interest. A.O. No. 308 is predicated on: (1) the need to provide citizens with the facility to transact business with the government instrumentalities and (2) the need to reduce fraudulent misrepresentation by persons seeking basic services. It is doubtful whether these interests are compelling enough to warrant the issuance of A.O. No. 308. On the other hand, the Order also suffers from vagueness and overbreadth. It does not state whether encoding of data is limited to biological information alone for identification purposes, The existence of a vast reservoir of personal information constitutes a covert invitation to misuse. The Order does not also provide who shall control and access the data under what circumstances and for what purpose. As A.O. No.308 is widely drawn that a minimum standard for a reasonable expectation of privacy cannot be inferred from its provisions, it is unconstitutional. (Gyn Etulle) an

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that the right to privacy is a "constitutional right" and "the right most valued by civilized men," but also from our adherence to the Universal Declaration of Human Rights which mandates that, "no one shall be subjected to arbitrary interference with his privacy" and "everyone has the right to the protection of the law against such interference or attacks." Our Bill of Rights, enshrined in Article III of the Constitution, provides at least two guarantees that explicitly create zones of privacy. It highlights a person's "right to be let alone" or the "right to determine what, how much, to whom and when information about himself shall be disclosed."49 Section 2 guarantees "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." Section 3 renders inviolable the "privacy of communication and correspondence" and further cautions that "any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding." In evaluating a claim for violation of the right to privacy, a court must determine whether a person has exhibited a reasonable expectation of privacy and, if so, whether that expectation has been violated by unreasonable government intrusion.50 Applying this determination to these cases, the important inquiries are: first, did the directors and officers of Philcomsat Holdings Corporation exhibit a reasonable expectation of privacy?; and second, did the government violate such expectation? The answers are in the negative. Petitioners were invited in the Senate's public hearing to deliberate on Senate Res. No. 455, particularly "on the anomalous losses incurred by the Philippine Overseas Telecommunications Corporation (POTC), Philippine Communications Satellite Corporation (PHILCOMSAT), and Philcomsat Holdings Corporations (PHC) due to the alleged improprieties in the operations by their respective board of directors." Obviously, the inquiry focus on petitioners' acts committed in the discharge of their duties as officers and directors of the said corporations, particularly Philcomsat Holdings Corporation. Consequently, they have no reasonable expectation of privacy over matters involving their offices in a corporation where the government has interest. Certainly, such matters are of public concern and over which the people have the right to information. This goes to show that the right to privacy is not absolute where there is an overriding compelling state interest. In Morfe v. Mutuc,51 the Court, in line with Whalen v. Roe,52 employed the rational basis relationship test when it held that there was no infringement of the individual's right to privacy as the requirement to disclosure information is for a valid purpose, i.e., to curtail and minimize the opportunities for official corruption, maintain a standard of honesty in public service, and promote morality in public administration.53 In Valmonte v. Belmonte,54 the Court remarked that as public figures, the Members of the former Batasang Pambansa enjoy a more limited right to privacy as compared to ordinary individuals, and their actions are subject to closer scrutiny. Taking this into consideration, the Court ruled that the right of the people to access information on matters of public concern prevails over the right to privacy of financial transactions. Under the present circumstances, the alleged anomalies in the PHILCOMSAT, PHC and POTC, ranging in millions of pesos, and the conspiratorial participation of the PCGG and its officials are compelling reasons for the Senate to exact vital information from the directors and officers of Philcomsat Holdings Corporations, as well as from Chairman Sabio and his Commissioners to aid it in crafting the necessary legislation to prevent corruption and formulate remedial measures and policy determination regarding PCGG's efficacy. There being no reasonable expectation of privacy on the part of those directors and officers over the subject covered by Senate Res. No. 455, it follows that their right to privacy has not been violated by respondent Senate Committees. SJS vs. DDB (2008) Facts: In these kindred petitions, the constitutionality of Section 36 of Republic Act No. (RA) 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, insofar as it requires mandatory drug testing of candidates for public office, students of secondary and tertiary schools, officers and employees of public and private offices, and persons charged before the prosecutor's office with certain offenses, among other personalities, is put in issue. Issue 1: Whether or not the mandatory drug testing of candidates for public office, students of secondary and tertiary

IN RE: CAMILO L. SABIO (2006)

Facts: On February 20, 2006, Senator Miriam Defensor Santiago introduced Philippine Senate Resolution No. 455 (Senate Res. No. 455), "directing an inquiry in aid of legislation on the anomalous losses incurred by the Philippines Overseas Telecommunications Corporation (POTC), Philippine Communications Satellite Corporation (PHILCOMSAT), and PHILCOMSAT Holdings Corporation (PHC) due to the alleged improprieties in their operations by their respective Board of Directors. On August 10, 2006, Senator Gordon issued a Subpoena Ad Testificandum, approved by Senate President Manuel Villar, requiring Chairman Sabio and PCGG Commissioners Ricardo Abcede, Nicasio Conti, Tereso Javier and Narciso Nario to appear in the public hearing scheduled on August 23, 2006 and testify on what they know relative to the matters specified in Senate Res. No. 455. However, said invitation was refused by them, invoking 4(b) of E.O. No. 1 which provides that, "No member or staff of the Commission shall be required to testify or produce evidence in any judicial, legislative or administrative proceeding concerning matters within its official cognizance." Unconvinced with the above Compliance and Explanation, the Committee on Government Corporations and Public Enterprises and the Committee on Public Services issued an Order directing Major General Jose Balajadia (Ret.), Senate Sergeant-At-Arms, to place Chairman Sabio and his Commissioners under arrest for contempt of the Senate. The Order bears the approval of Senate President Villar and the majority of the Committees' members. In G.R. No. 174177, petitioners Philcomsat Holdings Corporation and its directors and officers alleged among others that the subpoenae violated petitioners' rights to privacy and against selfincrimination. Issue: Whether or not the subpoena violated petitioners rights to privacy. Ruling: NO. One important limitation on the Congress' power of inquiry is that "the rights of persons appearing in or affected by such inquiries shall be respected." This is just another way of saying that the power of inquiry must be "subject to the limitations placed by the Constitution on government action." As held in Barenblatt v. United States, "the Congress, in common with all the other branches of the Government, must exercise its powers subject to the limitations placed by the Constitution on governmental action, more particularly in the context of this case, the relevant limitations of the Bill of Rights." Zones of privacy are recognized and protected in our laws. Within these zones, any form of intrusion is impermissible unless excused by law and in accordance with customary legal process. The meticulous regard we accord to these zones arises not only from our conviction

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

schools, officers and employees of public and private offices in violation of right to privacy. Ruling: NO. The first factor to consider in the matter of reasonableness is the nature of the privacy interest upon which the drug testing, which effects a search within the meaning of Sec. 2, Art. III of the Constitution, intrudes. In this case, the office or workplace serves as the backdrop for the analysis of the privacy expectation of the employees and the reasonableness of drug testing requirement. The employees' privacy interest in an office is to a large extent circumscribed by the company's work policies, the collective bargaining agreement, if any, entered into by management and the bargaining unit, and the inherent right of the employer to maintain discipline and efficiency in the workplace. Their privacy expectation in a regulated office environment is, in fine, reduced; and a degree of impingement upon such privacy has been upheld. Just as defining as the first factor is the character of the intrusion authorized by the challenged law. Reduced to a question form, is the scope of the search or intrusion clearly set forth, or, as formulated in Ople v. Torres, is the enabling law authorizing a search "narrowly drawn" or "narrowly focused"? The poser should be answered in the affirmative. For one, Sec. 36 of RA 9165 and its implementing rules and regulations (IRR), as couched, contain provisions specifically directed towards preventing a situation that would unduly embarrass the employees or place them under a humiliating experience. While every officer and employee in a private establishment is under the law deemed forewarned that he or she may be a possible subject of a drug test, nobody is really singled out in advance for drug testing. The goal is to discourage drug use by not telling in advance anyone when and who is to be tested. And as may be observed, Sec. 36(d) of RA 9165 itself prescribes what, in Ople, is a narrowing ingredient by providing that the employees concerned shall be subjected to "random drug test as contained in the company's work rules and regulations x x x for purposes of reducing the risk in the work place." For another, the random drug testing shall be undertaken under conditions calculated to protect as much as possible the employee's privacy and dignity. As to the mechanics of the test, the law specifies that the procedure shall employ two testing methods, i.e., the screening test and the confirmatory test, doubtless to ensure as much as possible the trustworthiness of the results. But the more important consideration lies in the fact that the test shall be conducted by trained professionals in access-controlled laboratories monitored by the Department of Health (DOH) to safeguard against results tampering and to ensure an accurate chain of custody. In addition, the IRR issued by the DOH provides that access to the drug results shall be on the "need to know" basis; that the "drug test result and the records shall be [kept] confidential subject to the usual accepted practices to protect the confidentiality of the test results." Notably, RA 9165 does not oblige the employer concerned to report to the prosecuting agencies any information or evidence relating to the violation of the Comprehensive Dangerous Drugs Act received as a result of the operation of the drug testing. All told, therefore, the intrusion into the employees' privacy, under RA 9165, is accompanied by proper safeguards, particularly against embarrassing leakages of test results, and is relatively minimal. To reiterate, RA 9165 was enacted as a measure to stamp out illegal drug in the country and thus protect the well-being of the citizens, especially the youth, from the deleterious effects of dangerous drugs. The law intends to achieve this through the medium, among others, of promoting and resolutely pursuing a national drug abuse policy in the workplace via a mandatory random drug test. To the Court, the need for drug testing to at least minimize illegal drug use is substantial enough to override the individual's privacy interest under the premises. The Court can consider that the illegal drug menace cuts across gender, age group, and social- economic lines. And it may not be amiss to state that the sale, manufacture, or trafficking of illegal drugs, with their ready market, would be an investor's dream were it not for the illegal and immoral components of any of such activities. The drug problem has hardly abated since the martial law public execution of a notorious drug trafficker. The state can no longer assume a laid back stance with respect to this modern-day scourge. Drug enforcement agencies perceive a mandatory random drug test to be an effective way of preventing and deterring drug use among employees in private offices, the threat of detection by random testing being higher than other modes. The Court holds that the chosen method is a reasonable and enough means to lick the problem. Taking into account the foregoing factors, i.e., the reduced expectation of privacy on the part of the employees, the compelling state concern likely to be met by the search, and the well-defined limits set forth in the law to properly guide authorities in the conduct of the random testing, we hold that the challenged drug test requirement is, under the

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limited context of the case, reasonable and, ergo, constitutional. Like their counterparts in the private sector, government officials and employees also labor under reasonable supervision and restrictions imposed by the Civil Service law and other laws on public officers, all enacted to promote a high standard of ethics in the public service. And if RA 9165 passes the norm of reasonableness for private employees, the more reason that it should pass the test for civil servants, who, by constitutional command, are required to be accountable at all times to the people and to serve them with utmost responsibility and efficiency. Issue 2: Whether or not the mandatory drug testing of persons charged before the prosecutor's office with certain offenses is in violation of right to privacy. Ruling: YES. Unlike the situation covered by Sec. 36(c) and (d) of RA 9165, the Court finds no valid justification for mandatory drug testing for persons accused of crimes. In the case of students, the constitutional viability of the mandatory, random, and suspicionless drug testing for students emanates primarily from the waiver by the students of their right to privacy when they seek entry to the school, and from their voluntarily submitting their persons to the parental authority of school authorities. In the case of private and public employees, the constitutional soundness of the mandatory, random, and suspicionless drug testing proceeds from the reasonableness of the drug test policy and requirement. We find the situation entirely different in the case of persons charged before the public prosecutor's office with criminal offenses punishable with six (6) years and one (1) day imprisonment. The operative concepts in the mandatory drug testing are "randomness" and "suspicionless." In the case of persons charged with a crime before the prosecutor's office, a mandatory drug testing can never be random or suspicionless. The ideas of randomness and being suspicionless are antithetical to their being made defendants in a criminal complaint. They are not randomly picked; neither are they beyond suspicion. When persons suspected of committing a crime are charged, they are singled out and are impleaded against their will. The persons thus charged, by the bare fact of being haled before the prosecutor's office and peaceably submitting themselves to drug testing, if that be the case, do not necessarily consent to the procedure, let alone waive their right to privacy.[40] To impose mandatory drug testing on the accused is a blatant attempt to harness a medical test as a tool for criminal prosecution, contrary to the stated objectives of RA 9165. Drug testing in this case would violate a persons' right to privacy guaranteed under Sec. 2, Art. III of the Constitution. Worse still, the accused persons are veritably forced to incriminate themselves.

11. PRIVACY OF COMMUNICATIONS

Zulueta vs. CA (1996) Facts: Petitioner Cecilia Zulueta is the wife of private respondent Alfredo Martin. On March 26, 1982, petitioner entered the clinic of her husband, a doctor of medicine, and in the presence of her mother, a driver and private respondents 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 petitioner had filed against her husband. Issue: Whether or not the documents and papers seized admissible in evidence. Ruling: NO. The documents and papers in question are inadmissible in evidence. The constitutional injunction declaring the privacy of communication and correspondence [to be] inviolable3 is no less applicable simply because it is the wife (who thinks herself aggrieved by her husbands infidelity) who is the party against whom the constitutional provision is to be enforced. The only exception to the prohibition in the Constitution is if there is a lawful order [from a] court or when public safety or order requires otherwise, as prescribed by law.4 Any violation of this provision renders the evidence obtained inadmissible for any purpose in any proceeding.5 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

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

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.6 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.7 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. Ople vs. Torres (1998) Facts: Petitioner Ople prays that this Court invalidate Administrative Order No. 308 entitled "Adoption of a National Computerized Identification Reference System" on two important constitutional grounds, viz: one, it is a usurpation of the power of Congress to legislate, and two, it impermissibly intrudes on our citizenry's protected zone of privacy. Issue: Whether or not AO No. 308 violates the constitutional right to privacy. Ruling: YES. Zones of privacy are recognized and protected in our laws. The Civil Code provides that "[e]very person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons" and punishes as actionable torts several acts by a person of meddling and prying into the privacy of another. 35 It also holds a public officer or employee or any private individual liable for damages for any violation of the rights and liberties of another person, 36 and recognizes the privacy of letters and other private communications. 37 The Revised Penal Code makes a crime the violation of secrets by an officer, 38 the revelation of trade and industrial secrets, 39 and trespass to dwelling. 40 Invasion of privacy is an offense in special laws like the AntiWiretapping Law, 41 the Secrecy of Bank Deposits Act 42 and the Intellectual Property Code. 43 The Rules of Court on privileged communication likewise recognize the privacy of certain information. 44 Unlike the dissenters, we prescind from the premise that the right to privacy is a fundamental right guaranteed by the Constitution, hence, it is the burden of government to show that A.O. No. 308 is justified by some compelling state interest and that it is narrowly drawn. A.O. No. 308 is predicated on two considerations: (1) the need to provide our citizens and foreigners with the facility to conveniently transact business with basic service and social security providers and other government instrumentalities and (2) the need to reduce, if not totally eradicate, fraudulent transactions and misrepresentations by persons seeking basic services. It is debatable whether these interests are compelling enough to warrant the issuance of A.O. No. 308. But what is not arguable is the broadness, the vagueness, the overbreadth of A.O. No. 308 which if implemented will put our people's right to privacy in clear and present danger. ----------A.O. No. 308 falls short of assuring that personal information which will be gathered about our people will only be processed for unequivocally specified purposes. 60 The lack of proper safeguards in this regard of A.O. No. 308 may interfere with the individual's liberty of abode and travel by enabling authorities to track down his movement; it may also enable unscrupulous persons to access confidential information and circumvent the right against self-incrimination; it may pave the way for "fishing expeditions" by government authorities and evade the right against unreasonable searches and seizures. 61 The possibilities of abuse and misuse of the PRN, biometrics and computer technology are accentuated when we consider that the individual lacks control over what can be read or placed on his ID, much less verify the correctness of the data encoded. 62 They threaten the very abuses that the Bill of Rights seeks to prevent. ______ The right to privacy is one of the most threatened rights of man living in a mass society. The threats emanate from various sources governments, journalists, employers, social scientists, etc. In th case at bar, the threat comes from the executive branch of government which by issuing A.O. No. 308 pressures the people to surrender their privacy by giving information about themselves on the pretext that it will facilitate delivery of basic services. Given the record-keeping power of the computer, only the indifferent fail to perceive the danger that A.O. No. 308 gives the government the power to compile a devastating dossier against unsuspecting citizens. It is timely to take

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note of the well-worded warning of Kalvin, Jr., "the disturbing result could be that everyone will live burdened by an unerasable record of his past and his limitations. In a way, the threat is that because of its record-keeping, the society will have lost its benign capacity to forget." 89 Oblivious to this counsel, the dissents still say we should not be too quick in labelling the right to privacy as a fundamental right. We close with the statement that the right to privacy was not engraved in our Constitution for flattery. In Re Alejano (2005) Facts: This case results from the Oakwood incident in July 2003. One of the petitioners argument is that the officials of the ISAFP Detention Center violated the detainees right to privacy when the ISAFP officials opened and read the letters handed by detainees Trillanes and Maestrecampo to one of the petitioners for mailing. Petitioners point out that the letters were not in a sealed envelope but simply folded because there were no envelopes in the ISAFP Detention Center. Petitioners contend that the Constitution prohibits the infringement of a citizens privacy rights unless authorized by law. The Solicitor General does not deny that the ISAFP officials opened the letters. Issue: Whether or not the officials of ISAFP Detention Center violated detainees right to privacy of communication. Ruling: No. The opening and reading of the detainees letters in the present case did not violate the detainees right to privacy of communication. The letters were not in a sealed envelope. The inspection of the folded letters is a valid measure as it serves the same purpose as the opening of sealed letters for the inspection of contraband. The letters alleged to have been read by the ISAFP authorities were not confidential letters between the detainees and their lawyers. The petitioner who received the letters from detainees Trillanes and Maestrecampo was merely acting as the detainees personal courier and not as their counsel when he received the letters for mailing. In the present case, since the letters were not confidential communication between the detainees and their lawyers, the officials of the ISAFP Detention Center could read the letters. If the letters are marked confidential communication between the detainees and their lawyers, the detention officials should not read the letters but only open the envelopes for inspection in the presence of the detainees. That a law is required before an executive officer could intrude on a citizens privacy rights is a guarantee that is available only to the public at large but not to persons who are detained or imprisoned. The right to privacy of those detained is subject to Section 4 of RA 7438, as well as to the limitations inherent in lawful detention or imprisonment. By the very fact of their detention, pre-trial detainees and convicted prisoners have a diminished expectation of privacy rights. KMU vs. Director (2006) Facts: On 13 April 2005 President Gloria Macapagal-Arroyo issued EO 420 (REQUIRING ALL GOVERNMENT AGENCIES AND GOVERNMENT-OWNED AND CONTROLLED CORPORATIONS TO STREAMLINE AND HARMONIZE THEIR IDENTIFICATION (ID) SYSTEMS, AND AUTHORIZING FOR SUCH PURPOSE THE DIRECTOR-GENERAL, NATIONAL ECONOMIC AND DEVELOPMENT AUTHORITY TO IMPLEMENT THE SAME, AND FOR OTHER PURPOSES). Petitioners alleged that EO 420 is unconstitutional because it violates the constitutional provisions on the right to privacy (i) It allows access to personal confidential data without the owners consent. (ii) EO 420 is vague and without adequate safeguards or penalties for any violation of its provisions. (iii) There are no compelling reasons that will legitimize the necessity of EO 420. Issue: Whether or not EO 420 violates the constitutional provision on the right to privacy. Ruling: NO. All these years, the GSIS, SSS, LTO, Philhealth and other government entities have been issuing ID cards in the performance of their governmental functions. There have been no complaints from citizens that the ID cards of these government entities violate their right to privacy. There have also been no complaints of abuse

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

by these government entities in the collection and recording of personal identification data. In fact, petitioners in the present cases do not claim that the ID systems of government entities prior to EO 420 violate their right to privacy. Since petitioners do not make such claim, they even have less basis to complain against the unified ID system under EO 420. The data collected and stored for the unified ID system under EO 420 will be limited to only 14 specific data, and the ID card itself will show only eight specific data. The data collection, recording and ID card system under EO 420 will even require less data collected, stored and revealed than under the disparate systems prior to EO 420. Prior to EO 420, government entities had a free hand in determining the kind, nature and extent of data to be collected and stored for their ID systems. Under EO 420, government entities can collect and record only the 14 specific data mentioned in Section 3 of EO 420. In addition, government entities can show in their ID cards only eight of these specific data, seven less data than what the Supreme Courts ID shows. Also, prior to EO 420, there was no executive issuance to government entities prescribing safeguards on the collection, recording, and disclosure of personal identification data to protect the right to privacy. Now, under Section 5 of EO 420, the following safeguards are instituted: a. The data to be recorded and stored, which shall be used only for purposes of establishing the identity of a person, shall be limited to those specified in Section 3 of this executive order; In no case shall the collection or compilation of other data in violation of a persons right to privacy be allowed or tolerated under this order; Stringent systems of access control to data in the identification system shall be instituted; Data collected and stored for this purpose shall be kept and treated as strictly confidential and a personal or written authorization of the Owner shall be required for access and disclosure of data; The identification card to be issued shall be protected by advanced security features and cryptographic technology; A written request by the Owner of the identification card shall be required for any correction or revision of relevant data, or under such conditions as the participating agency issuing the identification card shall prescribe.

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In the present case, EO 420 does not establish a national ID system but makes the existing sectoral card systems of government entities like GSIS, SSS, Philhealth and LTO less costly, more efficient, reliable and user-friendly to the public. Hence, EO 420 is a proper subject of executive issuance under the Presidents constitutional power of control over government entities in the Executive department, as well as under the Presidents constitutional duty to ensure that laws are faithfully executed.

III.

FREEDOM OF EXPRESSION B. PRIOR RESTRAINTS/ SUBSEQUENT PUNISHMENT

BLO vs. COMELEC (1992)

Facts: Petitioner Blo Umpar Adiong, a senatorial candidate in the May 11, 1992 elections assails the COMELEC's Resolution insofar as it prohibits the posting of decals and stickers in "mobile" places like cars and other moving vehicles. According to him such prohibition is violative of Section 82 of the Omnibus Election Code and Section 11(a) of Republic Act No. 6646. In addition, the petitioner believes that with the ban on radio, television and print political advertisements, he, being a neophyte in the field of politics stands to suffer grave and irreparable injury with this prohibition. The posting of decals and stickers on cars and other moving vehicles would be his last medium to inform the electorate that he is a senatorial candidate in the May 11, 1992 elections. Issue: Whether or not Comelecs Resolution is unconconstitutional. Ruling: YES. The prohibition unduly infringes on the citizen's fundamental right of free speech enshrined in the Constitution (Sec. 4, Article III). There is no public interest substantial enough to warrant the kind of restriction involved in this case. The posting of decals and stickers in mobile places like cars and other moving vehicles does not endanger any substantial government interest. There is no clear public interest threatened by such activity so as to justify the curtailment of the cherished citizen's right of free speech and expression. Under the clear and present danger rule not only must the danger be patently clear and pressingly present but the evil sought to be avoided must be so substantive as to justify a clamp over one's mouth or a writing instrument to be stilled: The case confronts us again with the duty our system places on the Court to say where the individual's freedom ends and the State's power begins. Choice on that border, now as always delicate, is perhaps more so where the usual presumption supporting legislation is balanced by the preferred place given in our scheme to the great, the indispensable democratic freedom secured by the first Amendment . . . That priority gives these liberties a sanctity and a sanction not permitting dubious intrusions and it is the character of the right, not of the limitation, which determines what standard governs the choice . . . For these reasons any attempt to restrict those liberties must be justified by clear public interest, threatened not doubtfully or remotely, but by clear and present danger. The rational connection between the remedy provided and the evil to be curbed, which in other context might support legislation against attack on due process grounds, will not suffice. These rights rest on firmer foundation. Accordingly, whatever occasion would restrain orderly discussion and persuasion, at appropriate time and place, must have clear support in public danger, actual or impending. Only the greatest abuses, endangering permanent interests, give occasion for permissible limitation. (Thomas V. Collins, 323 US 516 [1945]). (Emphasis supplied) Significantly, the freedom of expression curtailed by the questioned prohibition is not so much that of the candidate or the political party. The regulation strikes at the freedom of an individual to express his preference and, by displaying it on his car, to convince others to agree with him. A sticker may be furnished by a candidate but once the car owner agrees to have it placed on his private vehicle, the expression becomes a statement by the owner, primarily his own and not of anybody else. If, in the National Press Club case, the Court was careful to rule out restrictions on reporting by newspapers or radio and television stations and commentators or columnists as long as these are not correctly paid-for advertisements or purchased opinions with less reason can we sanction the prohibition against a sincere manifestation of support and a proclamation of belief by an individual person who pastes a sticker or decal on his private property. (Vanessa Fermil)

b.

c. d.

e. f.

On its face, EO 420 shows no constitutional infirmity because it even narrowly limits the data that can be collected, recorded and shown compared to the existing ID systems of government entities. EO 420 further provides strict safeguards to protect the confidentiality of the data collected, in contrast to the prior ID systems which are bereft of strict administrative safeguards. Petitioners have not shown how EO 420 will violate their right to privacy. Petitioners cannot show such violation by a mere facial examination of EO 420 because EO 420 narrowly draws the data collection, recording and exhibition while prescribing comprehensive safeguards. Ople v. Torres is not authority to hold that EO 420 violates the right to privacy because in that case the assailed executive issuance, broadly drawn and devoid of safeguards, was annulled solely on the ground that the subject matter required legislation. As then Associate Justice, now Chief Justice Artemio V. Panganiban noted in his concurring opinion in Ople v. Torres, The voting is decisive only on the need for appropriate legislation, and it is only on this ground that the petition is granted by this Court. EO 420 applies only to government entities that already maintain ID systems and issue ID cards pursuant to their regular functions under existing laws. EO 420 does not grant such government entities any power that they do not already possess under existing laws. In contrast, the assailed executive issuance in Ople v. Torres sought to establish a National Computerized Identification Reference System, a national ID system that did not exist prior to the assailed executive issuance. Obviously, a national ID card system requires legislation because it creates a new national data collection and card issuance system where none existed before.

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

EMILIO M. R. OSMEA and PABLO P. GARCIA, petitioners, vs. THE COMMISSION ON ELECTIONS, respondent 288 SCRA 447 This is a petition for prohibition, seeking a reexamination of the validity of 11(b) of R.A. No. 6646, the Electoral Reforms Law of 1987, which prohibits mass media from selling or giving free of charge print space or air time for campaign or other political purposes, except to the Commission on Elections. Thus, 11(b) states: Prohibited Forms of Election Propaganda. In addition to the forms of election propaganda prohibited in Section 85 of Batas Pambansa Blg. 881, it shall be unlawful: .... (b) for any newspapers, radio broadcasting or television station, or other mass media, or any person making use of the mass media to sell or to give free of charge print space or air time for campaign or other political purposes except to the Commission as provided under Section 90 and 92 of Batas Pambansa Blg. 881. Any mass media columnist, commentator, announcer or personality who is a candidate for any elective public office shall take a leave of absence from his work as such during the campaign period. On the other hand, the Omnibus Election Code provisions referred to in 11(b) read: SEC. 90. Comelec space. - The Commission shall procure space in at least one newspaper of general circulation in every province or city: Provided, however, That in the absence of said newspaper, publication shall be done in any other magazine or periodical in said province or city, which shall be known as Comelec Space wherein candidates can announce their candidacy. Said space shall be allocated, free of charge, equally and impartially by the Commission among all candidates within the area in which the newspaper is circulated. (Sec. 45, 1978 EC). SEC. 92. Comelec time. - The Commission shall procure radio and television time to be known as Comelec Time which shall be allocated equally and impartially among the candidates within the area of coverage of all radio and television stations. For this purpose, the franchise of all radio broadcasting and television stations are hereby amended so as to provide radio or television time, free of charge, during the period of the campaign. (Sec. 46, 1978 EC Held: The provisions in question involve no suppression of political ads. They only prohibit the sale or donation of print space and air time to candidates but require the COMELEC instead to procure space and time in the mass media for allocation, free of charge, to the candidates. In effect, during the election period, the COMELEC takes over the advertising page of newspapers or the commercial time of radio and TV stations and allocates these to the candidates. The prohibition against paid or sponsored political advertising is only half of the regulatory framework, the other half being the mandate of the COMELEC to procure print space and air time so that these can be allocated free of charge to the candidates. Here, there is no total ban on political ads, much less restriction on the content of the speech but only a substitution of media advertisements by the COMELEC space and COMELEC hour. Section 11(b) is a content-neutral restriction. Unlike content-based restrictions, it is not imposed because of the content of the speech. Content-neutral regulations need only a substantial governmental interest to support them. A deferential standard of review will suffice to test their validity. The OBrien Test: A government regulation is sufficiently justified if it is within the constitutional power of the Government, if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incident restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. Applying the OBrien test in this case, the Supreme Court found that 11(b) of R.A. No. 6646 is a valid exercise of the power of the State to regulate media of communication or information for the purpose of ensuring equal opportunity, time and space for political campaigns; that the regulation is unrelated to the suppression of speech; that any restriction on freedom of

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expression is only incidental and no more than is necessary to achieve the purpose of promoting equality. PETITION WAS DISMISSED. ABS-CBN BROADCASTING CORPORATION, petitioner, vs. COMMISSION ON ELECTIONS, respondent 323 SCRA 811 (2000) COMELEC en-banc approved the issuance of a restraining order to stop ABS-CBN or any other groups, its agents or representatives from conducting exit polls, as such may conflict with COMELECs official count as well as NAMFRELs unofficial quick count. COMELEC argues that the exit poll has a clear and present danger of destroying the credibility and integrity of the electoral process for it: 1. Disrupts the electoral process; 2. Confuses the voters; 3. Violates the secrecy of the ballots. Exit Poll: Defined An exit poll is a species of electoral survey conducted by qualified individuals or groups of individuals for the purpose of determining the probable result of an election by confidentially asking randomly selected voters whom they have voted for, immediately after they have officially cast their ballots. Issue: Whether or not the said COMELEC resolution was a valid restriction on the freedom of speech and of the press. Held: It is not a valid restriction The freedom of expression is a fundamental principle of our democratic government. It "is a 'preferred' right and, therefore, stands on a higher level than substantive economic or other liberties. Tests in determining the validity of restrictions to freedom of speech and of the press:

1.

'Clear and present danger' rule- the evil consequence of the comment or utterance must be 'extremely serious and the degree of imminence extremely high' before the utterance can be punished. The danger to be guarded against is the 'substantive evil' sought to be prevented. 'Dangerous tendency' rule- If the words uttered create a dangerous tendency which the state has a right to prevent, then such words are punishable. It is not necessary that some definite or immediate acts of force, violence, or unlawfulness be advocated. It is sufficient that such acts be advocated in general terms. Nor is it necessary that the language used be reasonably calculated to incite persons to acts of force, violence, or unlawfulness. It is sufficient if the natural tendency and probable effect of the utterance be to bring about the substantive evil which the legislative body seeks to prevent.

2.

The Supreme Court adheres to the clear and present danger rule. The danger must not only be clear but also present. "Present" refers to the time element; the danger must not only be probable but very likely to be inevitable. The evil sought to be avoided must be so substantive as to justify a clamp over one's mouth or a restraint of a writing instrument. Prior restraint carries with it a presumption of invalidity. To justify a restriction, the promotion of a substantial government interest must be clearly shown. The said Comelec Resolution is too broad, since its application is without qualification as to whether the polling is disruptive or not. There is no showing that exit polls or the means to interview voters cause chaos in voting centers. Neither has any evidence been presented proving that the presence of exit poll reporters near an election precinct tends to create disorder or confuse the voters. The absolute ban imposed by the Comelec cannot, therefore, be justified. It does not leave open any alternative channel of communication to gather the type of information obtained through exit polling. On the other hand, there are other valid and reasonable ways and means to achieve the Comelec end of avoiding or minimizing disorder and confusion that may be brought about by exit surveys.

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

Quite the contrary, instead of disrupting elections, exit polls -- properly conducted and publicized -- can be vital tools for the holding of honest, orderly, peaceful and credible elections; and for the elimination of election-fixing, fraud and other electoral ills. No violation of Ballot secrecy In exit polls, the contents of the official ballot are not actually exposed. Furthermore, the revelation of whom an elector has voted for is not compulsory, but voluntary. Voters may also choose not to reveal their identities. SOCIAL WEATHER STATIONS, INCORPORATED and KAMAHALAN PUBLISHING CORPORATION, doing business as MANILA STANDARD, petitioners, vs. COMMISSION ON ELECTIONS, respondent

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. By prohibiting the publication of election survey results because of the possibility that such publication might undermine the integrity of the election, 5.4 actually suppresses a whole class of expression, while allowing the expression of opinion concerning the same subject matter by newspaper columnists, radio and TV commentators, armchair theorists, and other opinion makers. In effect, 5.4 shows a bias for a particular subject matter, if not viewpoint, by preferring personal opinion to statistical results. The prohibition imposed by 5.4 cannot be justified on the ground that it is only for a limited period and is only incidental. The prohibition may be for a limited time, but the curtailment of the right of expression is direct, absolute, and substantial. It constitutes a total suppression of a category of speech and is not made less so because it is only for a period of fifteen (15) days immediately before a national election and seven (7) days immediately before a local election. Second, 5.4 fails to meet criterion [4] of the OBrien test- that the restriction be not greater than is necessary to further the governmental interest. While 5.4 aims at the prevention of last-minute pressure on voters, the creation of bandwagon effect, junking of weak or losing candidates, and resort to the form of election cheating called dagdag-bawas, however these aims cannot be attained at the sacrifice of the fundamental right of expression, when such aim can be more narrowly pursued by punishing unlawful acts, rather than speech because of apprehension that such speech creates the danger of such evils. The petition for prohibition was GRANTED and 5.4 of R.A. No. 9006 and 24(h) of COMELEC Resolution 3636 dated March 1, 2001, implementing such provision, are declared unconstitutional.

Petitioners sought to enjoin the Commission on Elections from enforcing 5.4 of R.A. No. 9006 (Fair Election Act), which provides: xxx Surveys affecting national candidates shall not be published fifteen (15) days before an election and surveys affecting local candidates shall not be published seven (7) days before an election. The term election surveys is defined in 5.1 of the law as follows: Election surveys refer to the measurement of opinions and perceptions of the voters as regards a candidates popularity, qualifications, platforms or a matter of public discussion in relation to the election, including voters preference for candidates or publicly discussed issues during the campaign period (hereafter referred to as Survey). Held: 5.4 of R.A. No. 9006 constitutes an unconstitutional abridgment of freedom of speech, expression, and the press for the following reasons: (1) It imposes a prior restraint on the freedom of expression; (2) It is a direct and total suppression of a category of expression even though such suppression is only for a limited period; and (3) The governmental interest sought to be promoted can be achieved by means other than the suppression of freedom of expression. To be sure, 5.4 lays a prior restraint on freedom of speech, expression, and the press by prohibiting the publication of election survey results affecting candidates within the prescribed periods of fifteen (15) days immediately preceding a national election and seven (7) days before a local election. The grant of power to the COMELEC under Art. IX-C, 4 is limited to ensuring equal opportunity, time, space, and the right to reply as well as uniform and reasonable rates of charges for the use of such media facilities for public information campaigns and forums among candidates. The presumption of no invalidity extends only to exercises of supervisory or regulatory authority on the part of the Comelec for the purpose of securing equal opportunity among candidates for political office, although such supervision or regulation may result in some limitation of the rights of free speech and free press. The OBrien Test: [A] government regulation is sufficiently justified [1] if it is within the constitutional power of the Government; [2] if it furthers an important or substantial governmental interest; [3] if the governmental interest is unrelated to the suppression of free expression; and [4] if the incidental restriction on alleged First Amendment freedoms [of speech, expression and press] is no greater than is essential to the furtherance of that interest. Under this test, even if a law furthers an important or substantial governmental interest, it should be invalidated if such governmental interest is not unrelated to the suppression of free expression. Moreover, even if the purpose is unrelated to the suppression of free speech, the law should nevertheless be invalidated if the restriction on freedom of expression is greater than is necessary to achieve the governmental purpose in question. Using the OBrien test, section 5.4 should be invalidated. First. It fails to meet criterion [3] of the OBrien test because the asserted governmental interest is not unrelated to the suppression of free expression.

GMA NETWORK vs. MTRCB G.R. No. 148579 FEBRUARY 5, 2007 Facts: Petitioner GMA Network, Inc. operates and manages the UHF television station, EMC Channel 27. On January 7, 2000, respondent MTRCB issued an order of suspension against petitioner for airing "Muro Ami: The Making" without first securing a permit from it as provided in Section 7 of PD 1986. The penalty of suspension was based on Memorandum Circular 9817 dated December 15, 1998 which provided for the penalties for exhibiting a program without a valid permit from the MTRCB. Issues: (1) Whether the MTRCB has the power or authority to review the show "Muro Ami: The Making" prior to its broadcast by television and (2) Whether Memorandum Circular No. 98-17 was enforceable and binding on petitioner. Held: 1. Yes, MTRCB has jurisdiction. Section 3 of PD 1986 empowers the MTRCB to screen, review and examine all motion pictures, television programs including publicity materials. This power of prior review is highlighted in its Rules and Regulations, particularly Section 7 thereof. The only exemptions from the MTRCBs power of review are those expressly mentioned in Section 7,6 such as (1) television programs imprinted or exhibited by the Philippine Government and/or departments and agencies, and (2) newsreels. "Muro Ami: The Making," did not fall under any of the exemptions and was therefore within the power of review of MTRCB. Even if said program is a pubic affairs program, the MTRCB still has jurisdiction. A public affairs program -- described as a variety of news treatment; a cross between pure television news and news-related commentaries, analysis and/or exchange of opinions -- is within the MTRCBs power of review. 2. No, Memorandum Circular No. 98-17 was not enforceable and binding on petitioner. The Administrative Code of 1987, particularly Section 3 thereof, expressly requires each agency to file with the Office of the National Administrative Register (ONAR) of the

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

University of the Philippines Law Center three certified copies of every rule adopted by it. Administrative issuances which are not published or filed with the ONAR are ineffective and may not be enforced. Memorandum Circular No. 98-17 has not been registered with the ONAR as of January 27, 2000. It is thus unenforceable since it has not been filed in the ONAR. Consequently, petitioner was not bound by said circular and should not have been meted the sanction provided thereunder. CHAVEZ vs. GONZALES 545 SCRA 441 February 15, 2008 Petitioner Chavez filed a petition under Rule 65 of the Rules of Court against respondents Secretary Gonzales and the NTC, praying for the issuance of the writs of certiorari and prohibition, as extraordinary legal remedies, to annul void proceedings, and to prevent the unlawful, unconstitutional and oppressive exercise of authority by the respondents. This case concerns the Hello Garci issue. On June 5, 2005, Press Secretary Ignacio Bunye told reporters that the opposition was planning to destabilize the administration by releasing an audiotape of a mobile phone conversation allegedly between President Arroyo, and a high-ranking official of the Commission on Elections (COMELEC). Said conversation was allegedly wiretapped. On June 8, 2005, respondent Department of Justice (DOJ) Secretary Raul Gonzales warned reporters that those who had copies of the compact disc (CD) and those broadcasting or publishing its contents could be held liable under the Anti-Wiretapping Act. In another press briefing, Secretary Gonzales ordered the National Bureau of Investigation (NBI) to go after media organizations found to have caused the spread, the playing and the printing of the contents of a tape. June 11, 2005, the NTC issued this press release giving a fair warning to radio and television owners/operators to observe anti-wiretapping law and pertinent circulars on program standards. The concerned radio and television companies are further warned that their broadcast/airing of such false information and/or willful misrepresentation shall be just cause for the suspension, revocation and/or cancellation of the licenses or authorizations issued to them. On June 14, 2005, NTC held a dialogue with the Board of Directors of the Kapisanan ng mga Brodkaster sa Pilipinas (KBP) asking the latter that the exercise of press freedom [be] done responsibly. Issue: Whether or not the acts of the respondent constitute a valid prior restraint Held: No, said acts do not constitute a valid prior restraint. Prior restraint refers to official governmental restrictions on the press or other forms of expression in advance of actual publication or dissemination. Freedom from prior restraint is largely freedom from government censorship. Any law or official that requires some form of permission to be had before publication can be made, commits an infringement of the constitutional right, and remedy can be had at the courts. Not all prior restraints on speech are however invalid. A distinction has to be made whether the restraint is (1) a contentneutral regulation, (i.e., merely concerned with the incidents of the speech, or one that merely controls the time, place or manner, and under well defined standards;) or (2) a content-based restraint or censorship, (i.e., the restriction is based on the subject matter of the utterance or speech). When the speech restraints take the form of a content-neutral regulation, only a substantial governmental interest is required for its validity. This is the intermediate approach. This is subject to an intermediate review. A content-based regulation bears a heavy presumption of invalidity and is measured against the clear and present danger rule. It latter will pass constitutional muster only if justified by a compelling

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reason, and the restrictions imposed are neither overbroad nor vague. The challenged acts in the case at bar need to be subjected to the clear and present danger rule, as they are content-based restrictions. The acts of respondents focused solely on but one objecta specific content fixed as these were on the alleged taped conversations between the President and a COMELEC official. Undoubtedly these did not merely provide regulations as to the time, place or manner of the dissemination of speech or expression. A governmental action that restricts freedom of speech or of the press based on content is given the strictest scrutiny, with the government having the burden of overcoming the presumed unconstitutionality by the clear and present danger rule. On the basis of the records of the case at bar, respondents who have the burden to show that these acts do not abridge freedom of speech and of the press failed to hurdle the clear and present danger test. It appears that the great evil which government wants to prevent is the airing of a tape recording in alleged violation of the anti-wiretapping law. Not every violation of a law will justify straitjacketing exercise of freedom of speech and of the press. the

The totality of the injurious effects of the violation to private and public interest must be calibrated in light of the preferred status accorded by the Constitution and by related international covenants protecting freedom of speech and of the press. There is no showing that the feared violation of the antiwiretapping law clearly endangers the national security of the State. 2. Whether or not the press statements of the Secretary of Justice and the NTC constitute a form of content-based prior restraint. Held: It is not decisive that the press statements made by respondents were not reduced in or followed up with formal orders or circulars. It is sufficient that the press statements were made by respondents while in the exercise of their official functions. Undoubtedly, respondent Gonzales made his statements as Secretary of Justice, while the NTC issued its statement as the regulatory body of media. The concept of an act does not limit itself to acts already converted to a formal order or official circular. The press statements at bar are acts that should be struck down as they constitute impermissible forms of prior restraints on the right to free speech and press. The petition was GRANTED. Note: In this case, the Supreme Court enumerated the Four aspects of freedom of the press, to wit: 1) 2) 3) 4) Freedom from prior restraint; Freedom from punishment subsequent to publication; Freedom of access to information; Freedom of circulation.

2. APPLICATIONS CONTEXTS a. FREEDOM SECURITY OF

OF

TESTS

IN

VARIOUS NATIONAL

EXPRESSION

AND

b. FREEDOM OF EXPRESSION & CRITICISM OF OFFICIAL CONDUCT: TEST OF ACTUAL MALICE SOLIVEN vs. MAKASIAR 167 SCRA 393 (1988)

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

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the public of the legitimacy of the purpose of the activity and of the qualifications and integrity of the personalities behind it.

BORJAL vs. CA 301 SCRA 1 (1999)

Facts: Petitioners Arturo Borjal and Maximo Soliven are among the incorporators of Philippines Today, Inc. (PTI), now PhilSTAR Daily, Inc., owner of The Philippine Star, a daily newspaper. At the time the complaint was filed, petitioner Borjal was its President while Soliven was (and still is) Publisher and Chairman of its Editorial Board. Among the regular writers of The Philippine Star is Borjal who runs the column Jaywalker. Private respondent Francisco Wenceslao, is a civil engineer, businessman, business consultant and journalist by profession. In 1988 he served as a technical adviser of Congressman Fabian Sison, then Chairman of the House of Representatives Sub-Committee on Industrial Policy (the sub-committee). The sub-committee agreed to organize the First National Conference on Land Transportation (FNCLT). The conference which, according to private respondent, was estimated to cost around P1,815,000.00 would be funded through solicitations from various sponsors. Private respondent Wenceslao was elected Executive Director. As such, he wrote numerous solicitation letters to the business community for the support of the conference. Between May and July 1989 petitioner Borjal wrote a series of articles which dealt with the alleged anomalous activities of an "organizer of a conference" without naming or identifying private respondent. Neither did it refer to the FNCLT as the conference therein mentioned. Private respondent reacted to the articles. He sent a letter to The Philippine Star insisting that he was the organizer alluded to in petitioner Borjals columns. He refuted the matters contained in said columns. Private Respondent filed a criminal case for libel against petitioners Borjal and Soliven, among others. However, in a Resolution dated 7 August 1990, the Assistant Prosecutor handling the case dismissed the complaint for insufficiency of evidence. The dismissal was sustained by the Department of Justice and later by the Office of the President. On 31 October 1990 private respondent instituted against petitioners a civil action for damages based on libel subject of the instant case. The trial court decided in favor of private respondent Wenceslao and ordered petitioners Borjal and Soliven to indemnify private respondent for damages. The Court of Appeals affirmed the decision of the court a quo but reduced the amount of the monetary award. Issue: Whether or not the disputed articles constitute privileged communications as to exempt the author from liability. Held: Yes, they are privileged.

The guarantees of freedom of speech and press prohibit a public official or public figure from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with actual malice, i.e., with knowledge that it was false or with reckless disregard of whether it was false or not. To require critics of official conduct to guarantee the truth of all their factual assertions on pain of libel judgments would lead to self-censorship, since would-be critics would be deterred from voicing out their criticisms even if such were believed to be true, or were in fact true, because of doubt whether it could be proved or because of fear of the expense of having to prove it In the present case, SC deemed private respondent a public figure. A "public figure" is defined as a person who, by his accomplishments, fame, mode of living, or by adopting a profession or calling which gives the public a legitimate interest in his doings, his affairs and his character, has become a public personage. He is, in other words, a celebrity. The FNCLT was an undertaking infused with public interest. As its Executive Director and spokesman, private respondent consequently assumed the status of a public figure. Moreover, If a matter is a subject of public or general interest, it cannot suddenly become less so merely because a private individual is involved or because in some sense the individual did not voluntarily choose to become involved. The publics primary interest is in the event; the public focus is on the conduct of the participant and the content, effect and significance of the conduct, not the participant's prior anonymity or notoriety. On Malice While, generally, malice can be presumed from defamatory words, the privileged character of a communication destroys the presumption of malice. Malice connotes ill will or spite and speaks not in response to duty but merely to injure the reputation of the person defamed, and implies an intention to do ulterior and unjustifiable harm. It is the essence of the crime of libel. Private respondent failed to substantiate by preponderant evidence that petitioner was animated by a desire to inflict unjustifiable harm on his reputation, or that the articles were written and published without good motives or justifiable ends. Furthermore, to be considered malicious, the libelous statements must be shown to have been written or published with the knowledge that they are false or in reckless disregard of whether they are false or not.[ Even assuming that the contents of the articles are false, mere error, inaccuracy or even falsity alone does not prove actual malice. Petition was granted.

Fair commentaries on matters of public interest are privileged and constitute a valid defense in an action for libel or slander. The doctrine of fair comment means that while in general every discreditable imputation publicly made is deemed false, because every man is presumed innocent until his guilt is judicially proved, and every false imputation is deemed malicious, nevertheless, when the discreditable imputation is directed against a public person in his public capacity, it is not necessarily actionable. In order that such discreditable imputation to a public official may be actionable, it must either be a false allegation of fact or a comment based on a false supposition. If the comment is an expression of opinion, based on established facts, then it is immaterial that the opinion happens to be mistaken, as long as it might reasonably be inferred from the facts. The questioned articles dealt with matters of public interest. The declared objective of the conference, the composition of its members and participants, and the manner by which it was intended to be funded no doubt lend to its activities as being genuinely imbued with public interest. An organization such as the FNCLT aiming to reinvent and reshape the transportation laws of the country and seeking to source its funds for the project from the public at large cannot dissociate itself from the public character of its mission. As such, it cannot but invite close scrutiny by the media obliged to inform

VASQUEZ vs. CA 314 SCRA 460 (2000)

Facts: The question for determination in this case is the liability for libel of a citizen who denounces a barangay official for misconduct in office. Petitioner Rodolfo R. Vasquez is a resident of the Tondo Foreshore Area. Sometime in April 1986, he and some 37 families from the area went to see then National Housing Authority (NHA) General Manager Lito Atienza regarding their complaint against their Barangay Chairman, Jaime Olmedo. After their meeting with Atienza and other NHA officials, petitioner and his companions were met and interviewed by newspaper reporters at the NHA compound concerning their complaint. The interview appeared the next day in the newspaper Ang Tinig ng Masa, the pertinent portions of which read:

xxx Nananawagan kahapon kay pangulong Corazon Aquino ang 38 mahihirap na pamilya sa Tondo Foreshore Area na umanoy inagawan ng lupa ng kanilang barangay chairman sa pakikipagsabwatan sa ilang pinuno ng

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

National Housing Authority sapul 1980.xxx xxx Sinabi nila na nakipagsabwatan umano si Chairman Jaime Olmedo ng barangay 66, Zone 6, Tondo Foreshore Area, sa mga project manager ng NHA upang makamkam ang may 14 na lote ng lupa sa naturang lugar. xxx xxx Binanggit ni Rodolfo R. Vasquez, 40, Tagapagsalita ng (mga) pamilyang apektado, na umaabot lang sa 487.87 metro kuwadrado ang kabuuan ng mga lupa na kinatitirikan ng mga barung-barung ng 38 pamilya. xxx Based on the newspaper article, Olmedo filed a complaint for libel against petitioner alleging that the latters statements cast aspersions on him and damaged his reputation. After conducting preliminary investigation, the city prosecutor, filed an information for libel before the RTC of Manila, Br. 40. The trial court rendered judgment finding petitioner guilty of libel. CA affirmed the decision. Issue: W/N petitioner is liable for libel. Held: Petitioner is not liable for libel.

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unnoticed. An alleged confrontation between Thoenen and the owner of a pet he shot recently threatens to exacerbate the problem, Angara said. The subject of said article was Francis Theonen who is a retired engineer and permanently residing in the country with his Filipina wife and children. Claiming that the report was false and defamatory, and that the petitioners acted irresponsibly in failing to verify the truth of the same prior to publication, he filed a civil case for damages against herein petitioners. Thoenen claimed that the article destroyed the respect and admiration he enjoyed in the community, and that since it had been published, he and his wife received several queries and angry calls from friends, neighbors and relatives. The principal source of the article was allegedly a letter by a certain Atty. Efren Angara addressed to the Bureau of Immigration who requested to verify the true status/authenticity of the residency in the Philippines of a foreign national (a Swiss) by the name of Francis Thoenen who is presently residing at No. 10 Calcuta cor. Beirut Street, BF Homes (PH. III), Paraaque, Metro Manila. I received (sic) complaint from my clients residing around his vicinity that this foreigner had (sic) been causing troubles ever since he showed up. He is too meticulous and had (sic) been shooting dogs and cats passing his house wall everytime. The news article contained several inaccuracies. The headline, which categorically stated that the subject of the article engaged in the practice of shooting pets, was untrue. Moreover, it is immediately apparent from a comparison between letter and the news item that while the letter is a mere request for verification of Thoenens status, Lee wrote that residents of BF Homes had asked the Bureau of Immigration to deport a Swiss who allegedly shoots neighbors pets. No complaints had in fact been lodged against him by any of the BF Homeowners nor had any pending deportation proceedings been initiated against him in the Bureau of Immigration. The Office of the Bar Confidant also announced that no Atty. Efren Angara ever exists. The trial court ruled in favor of the petitioners, while the CA reversed the ruling. ISSUE: W/N the freedom of speech and the press can be extended to petitioners in this case? RULING: NO. The freedom of speech and of the press is not absolute. Not all speech is protected. The right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or fighting words - those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. Libel is not protected speech. For an imputation to be libelous, the following requisites must be met: (a) the allegation of a discreditable act or condition concerning another; (b) publication of the charge; (c) identity of the person defamed; and (d) existence of malice. All the elements are found to be present in the case. As a general rule, malice is presumed. ART. 354. Requirement of Publicity. - Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the following cases: 1. 2. A private communication made by any person to another in the performance of any legal, moral or social duty; and A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions.

Petitioner was able to prove the truth of his charges against the barangay official. His allegation that, through connivance with NHA officials, complainant was able to obtain title to several lots at the Tondo Foreshore Area was based on the letter of NHA Inspector General Hermogenes Fernandez to petitioners counsel. With regard to the other imputations made by petitioner against complainant, it must be noted that what petitioner stated was that various charges (for attempted murder against petitioner, gambling, theft of fighting cocks) had been filed by the residents against their barangay chairman but these had all been dismissed. Petitioner was able to show evidence against these charges. In denouncing the barangay chairman in this case, petitioner and the other residents of the Tondo Foreshore Area were not only acting in their self-interest but engaging in the performance of a civic duty to see to it that public duty is discharged faithfully and well by those on whom such duty is incumbent. The recognition of this right and duty of every citizen in a democracy is inconsistent with any requirement placing on him the burden of proving that he acted with good motives and for justifiable ends. For that matter, even if the defamatory statement is false, no liability can attach if it relates to official conduct, unless the public official concerned proves that the statement was made with actual malice that is, with knowledge that it was false or with reckless disregard of whether it was false or not. In this case, the prosecution failed to prove not only that the charges made by petitioner were false but also that petitioner made them with knowledge of their falsity or with reckless disregard of whether they were false or not. The decision of the CA was REVERSED and the petitioner was ACQUITTED of the crime charged.

(Kristine Ferrer)

c. FREEDOM OF EXPRESSION AND THE RIGHT OF PRIVACY

Philippine Journalist, Inc. vs. Theonen December 13, 2005 FACTS: On September 30, 1990, a news item in Peoples Journal (a tabloid of general circulation) contained the following article. Swiss Shoots Neighbors Pets (Cristina Lee) RESIDENTS of a subdivision in Paraaque have asked the Bureau of Immigration to deport a Swiss who allegedly shoots wayward neighbors pets that he finds in his domain.The BF Homes residents through lawyer Atty. Efren Angara complained that the deportation of Francis Thoenen, of 10 Calcutta BF Homes Phase III, could help prevent the recurrence of such incident in the future. Angara explained that house owners could not control their dogs and cats when they slip out of their dwellings

The article is not a privileged communication. A privileged communication may be either absolutely privileged or qualifiedly privileged. Absolutely privileged communications are those which are not actionable even if the author has acted in bad faith. An

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

example is found in Sec. 11, Art. VI of the 1987 Constitution which exempts a member of Congress from liability for any speech or debate in the Congress or in any Committee thereof. Upon the other hand, qualifiedly privileged communications containing defamatory imputations are not actionable unless found to have been made without good intention or justifiable motive. To this genre belong private communications and fair and true report without any comments or remarks. The petitioners story is not privileged in character, for it is neither private communication nor a fair and true report without any comments or remarks. What is a private communication? A communication made bona fide upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, is privileged, if made to a person having a corresponding interest or duty, although it contained criminatory matter which without this privilege would be slanderous and actionable. A pertinent illustration of the application of qualified privilege is a complaint made in good faith and without malice in regard to the character or conduct of a public official when addressed to an officer or a board having some interest or duty in the matter. Assuming that the letter written by the spurious Atty. Angara is privileged communication, it lost its character when the matter was published in the newspaper and circulated among the general population. Neither is the news item a fair and true report without any comments or remarks of any judicial, legislative or other official proceedings; there is in fact no proceeding to speak of. Nor is the article related to any act performed by public officers in the exercise of their functions, for it concerns only false imputations against Thoenen, a private individual seeking a quiet life. On its face, the statement that residents of BF Homes had asked the Bureau of Immigration to deport a Swiss who allegedly shoots neighbors pets is patently untrue since the letter of the spurious Atty. Angara was a mere request for verification of Thoenens status as a foreign resident. Lees article, moreover, is also untrue, in that the events she reported never happened. The respondent had never shot any of his neighbors pets, no complaints had been lodged against him by his neighbors, and no deportation proceedings had been initiated against him. Although it has been stressed that a newspaper should not be held to account to a point of suppression for honest mistakes, or imperfection in the choice of words, even the most liberal view of free speech has never countenanced the publication of falsehoods, especially the persistent and unmitigated dissemination of patent lies. There is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances societys interest in uninhibited, robust, and wide-open debate. The use of the known lie as a tool is at once at odds with the premises of democratic government and with the orderly manner in which economic, social, or political change is to be effected. Calculated falsehood falls into that class of utterances which are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality The knowingly false statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection Tulfo vs. People of the Philippines September 16, 2008 The freedom of the press is one of the cherished hallmarks of our democracy; but even as we strive to protect and respect the fourth estate, the freedom it enjoys must be balanced with responsibility. There is a fine line between freedom of expression and libel, and it falls on the courts to determine whether or not that line has been crossed. FACTS: Atty. Carlos "Ding" So of the Bureau of Customs filed a complaint and charged and charged petitioners Erwin Tulfo, as author/writer, Susan Cambri, as managing editor, Rey Salao, as national editor, Jocelyn Barlizo, as city editor, and Philip Pichay, as president of the Carlo Publishing House, Inc., of the daily tabloid Remate, with the crime of libel in connection with the publication of the articles in the column "Direct Hit" in the issues of May 11, 1999; May 12, 1999; May 19, 1999; and June 25, 1999. One of the articles are as follows: PINAKAMAYAMAN SA CUSTOMS Ito palang si Atty. Ding So ng Intelligence Division ng Bureau of Customs and [sic] pinakamayaman na yata na government official sa

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buong bansa sa pangungurakot lamang diyan sa South Harbor.Hindi matibag ang gagong attorney dahil malakas daw ito sa Iglesia ni Kristo.Hoy, So! . . nakakahiya ka sa mga INC, ikaw na yata ang pinakagago at magnanakaw na miyembro nito.Balita ko, malapit ka nang itiwalag ng nasabing simbahan dahil sa mga kalokohan mo. Abangan bukas ang mga raket ni So sa BOC. The trial court found the petitioners guilty of libel while CA affirmed the said decision. ISSUE: W/N petitioners are guilty of libel? RULING: Yes, malice applies. Not covered by the privilege communication rule. Freedom of the Press v. Responsibility of the Press The Court has long respected the freedom of the press, and upheld the same when it came to commentaries made on public figures and matters of public interest. Even in cases wherein the freedom of the press was given greater weight over the rights of individuals, the Court, however, has stressed that such freedom is not absolute and unbounded. The exercise of this right or any right enshrined in the Bill of Rights, indeed, comes with an equal burden of responsible exercise of that right. The recognition of a right is not free license for the one claiming it to run roughshod over the rights of others. It cannot be said that Tulfo followed the Journalist's Code of Ethics and exercised his journalistic freedom responsibly. In his series of articles, he targeted one Atty. "Ding" So of the Bureau of Customs as being involved in criminal activities, and was using his public position for personal gain. He went even further than that, and called Atty. So an embarrassment to his religion, saying "ikaw na yata ang pinakagago at magnanakaw sa miyembro nito." He accused Atty. So of stealing from the government with his alleged corrupt activities. And when Atty. So filed a libel suit against him, Tulfo wrote another article, challenging Atty. So, saying, "Nagalit itong tarantadong si Atty. So dahil binabantayan ko siya at in-expose ang kagaguhan niya sa [Bureau of Customs]. The exercise of press freedom must be done "consistent with good faith and reasonable care." This was clearly abandoned by Tulfo when he wrote the subject articles. This is no case of mere error or honest mistake, but a case of a journalist abdicating his responsibility to verify his story and instead misinforming the public. Journalists may be allowed an adequate margin of error in the exercise of their profession, but this margin does not expand to cover every defamatory or injurious statement they may make in the furtherance of their profession, nor does this margin cover total abandonment of responsibility. In order that such discreditable imputation to a public official may be actionable, it must either be a false allegation of fact or a comment based on a false supposition. If the comment is an expression of opinion, based on established facts, then it is immaterial that the opinion happens to be mistaken, as long as it might reasonably be inferred from the facts. Tulfosarticles cannot even be considered as qualified privileged communication under the second paragraph of Art. 354 of the RPC which exempts from the presumption of malice "a fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative, or other official proceedings which are not of confidential nature, or any statement, report, or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions." This particular provision has several elements which must be present in order for the report to be exempt from the presumption of malice. The provision can be dissected as follows: In order that the publication of a report of an official proceeding may be considered privileged, the following conditions must exist: (a) That it is a fair and true report of a judicial, legislative, or other official proceedings which are not of confidential nature, or of a statement, report or speech delivered in said proceedings, or of any other act performed by a public officer in the exercise of his functions; (b) That it is made in good faith; and (c) That it is without any comments or remarks. Petitioners Cambri, Salao, Barlizo, and Pichay all claim that they had no participation in the editing or writing of the subject articles, and are thus not liable.The argument must fail. The language of Art. 360 of the RPC is plain. It lists the persons responsible for libel:

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

Art. 360. Persons responsible.--Any person who shall publish, exhibit, or cause the publication or exhibition of any defamation in writing or by similar means, shall be responsible for the same. The author or editor of a book or pamphlet, or the editor or business manager of a daily newspaper, magazine or serial publication, shall be responsible for the defamations contained therein to the same extent as if he were the author thereof. Those who would publish under the aegis of freedom of the press must also acknowledge the corollary duty to publish responsibly. To show that they have exercised their freedom responsibly, they must go beyond merely relying on unfounded rumors or shadowy anonymous sources. There must be further investigation conducted, some shred of proof found to support allegations of misconduct or even criminal activity. It is in fact too easy for journalists to destroy the reputation and honor of public officials, if they are not required to make the slightest effort to verify their accusations. Journalists are supposed to be reporters of facts, not fiction, and must be able to back up their stories with solid research. The power of the press and the corresponding duty to exercise that power judiciously cannot be understated. But even with the need for a free press, the necessity that it be free does not mean that it be totally unfettered. It is still acknowledged that the freedom can be abused, and for the abuse of the freedom, there must be a corresponding sanction. It falls on the press to wield such enormous power responsibly. It may be a cliche that the pen is mightier than the sword, but in this particular case, the lesson to be learned is that such a mighty weapon should not be wielded recklessly or thoughtlessly, but always guided by conscience and careful thought.

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The line of equilibrium in the specific context of the instant case between the constitutional freedom of speech and of expression and the right of privacy, may be marked out in terms of a requirement that the proposed motion picture must be fairly truthful and historical in its presentation of events. PHILIPPINE JOURNALISTS, INC. vs. CAPULONG 160 SCRA 861 (1988)

d. FREEDOM OF EXPRESSION AND ADMINISTRATION OF JUSTICE

IN RE EMILIANO P. JURADO AM NO. 90-5-2373 JULY 12, 1990 Facts: Emiliano P. Jurado, a journalist who writes in a newspaper of general circulation, the "Manila Standard." He describes himself as a columnist, who "incidentally happens to be a lawyer," remarking that while he values his membership in the law profession, "such membership is neither a critical nor indispensable adjunct in the exercise of his occupation as a newspaperman." His column in the "Manila Standard" is entitled "Opinion." Jurado had been writing about alleged improperties and irregularities in the judiciary over several months (from about October, 1992 to March, 1993). Other journalists had also been making reports or comments on the same subject. At the same time, anonymous communications were being extensively circulated, by hand and through the mail, about alleged venality and corruption in the courts. And all these were being repeatedly and insistently adverted to by certain sectors of society. Issue: Whether or Not Tulfo is in contempt.

c. FREEDOM OF EXPRESSION AND RIGHT OF PRIVACY

Ayer Productions vs. Capulong April 29, 1988 FACTS: Petitioner McElroy an Australian film maker, and his movie production company, Ayer Productions, envisioned, sometime in 1987, for commercial viewing and for Philippine and international release, the historic peaceful struggle of the Filipinos at EDSA. The proposed motion picture entitled "The Four Day Revolution" was endorsed by the MTRCB as and other government agencies consulted. Ramos also signified his approval of the intended film production. It is designed to be viewed in a six-hour mini-series television play, presented in a "docu-drama" style, creating four fictional characters interwoven with real events, and utilizing actual documentary footage as background. David Williamson is Australia's leading playwright and Professor McCoy (University of New South Wales) is an American historian have developed a script. Enrile declared that he will not approve the use, appropriation, reproduction and/or exhibition of his name, or picture, or that of any member of his family in any cinema or television production, film or other medium for advertising or commercial exploitation. petitioners acceded to this demand and the name of Enrile was deleted from the movie script, and petitioners proceeded to film the projected motion picture. However, a complaint was filed by Enrile invoking his right to privacy. RTC ordered for the desistance of the movie production and making of any reference to plaintiff or his family and from creating any fictitious character in lieu of plaintiff which nevertheless is based on, or bears substantial or marked resemblance to Enrile. Hence the appeal. ISSUE: Whether or Not freedom of expression was violated. RULING: Yes. Freedom of speech and of expression includes the freedom to film and produce motion pictures and exhibit such motion pictures in theaters or to diffuse them through television. Furthermore the circumstance that the production of motion picture films is a commercial activity expected to yield monetary profit, is not a disqualification for availing of freedom of speech and of expression. The projected motion picture was as yet uncompleted and hence not exhibited to any audience. Neither private respondent nor the respondent trial Judge knew what the completed film would precisely look like. There was, in other words, no "clear and present danger" of any violation of any right to privacy. Subject matter is one of public interest and concern. The subject thus relates to a highly critical stage in the history of the country. At all relevant times, during which the momentous events, clearly of public concern, that petitioners propose to film were taking place, Enrile was a "public figure:" Such public figures were held to have lost, to some extent at least, their right to privacy.

Ruling: The principle of press freedom is invoked by Jurado in justification of these published writings. That invocation is obviously unavailing in light of the basic postulates and the established axioms or norms for the proper exercise of press freedom earlier set forth in this opinion. Jurado next puts in issue this Court's power to cite him for contempt. The issue is quickly disposed of by adverting to the familiar principle reiterated inter alia in Zaldivar v. Gonzales: . . . (T)he Supreme Court has inherent power to punish for contempt, to control in the furtherance of justice the conduct of ministerial officers of the Court including lawyers and all other persons connected in any manner with a case before the Court (In re Kelly, 35 Phil. 944 [1916]; In re Severino Lozano and Anastacio Quevedo, 54 Phil. 801 (1930]; In re Vicente Pelaez, 44 Phil. 567 [1923]; and In re Vicente Sotto, 82 Phil. 595 [1949]). The power to punish for contempt is "necessary for its own protection against improper interference with the due administration of justice," "(i)t is not dependent upon the complaint of any of the parties litigant" (Halili v. Court of Industrial Relations, 136 SCRA 112 [1985]; Andres v. Cabrera, 127 SCRA 802 [1984]; Montalban v. Canonoy, 38 SCRA 1 [1971]; Commissioner of Immigration v. Cloribel, 20 SCRA 1241 [1967]; Herras Teehankee v. Director of Prisons, 76 Phil. 630 [1946]). Contempt is punishable, even if committed without relation to a pending case. Philippine jurisprudence parallels a respectable array of English decisions holding contumacious scurrilous attacks against the courts calculated to bring them into disrepute, even when made after the trial stage or after the end of the proceedings. Jurado would also claim that the Court has no administrative supervision over him as a member of the press or over his work as a journalist, and asks why he is being singled out, and, by being required to submit to a separate administrative proceeding, treated differently than his other colleagues in media who were only asked to explain their reports and comments about wrongdoing in the judiciary to the Ad Hoc Committee. The answer is that upon all that has so far been said, the Court may hold anyone to answer for utterances offensive to its dignity, honor or reputation which tend to put it in

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

disrepute, obstruct the administration of justice, or interfere with the disposition of its business or the performance of its functions in an orderly manner. Jurado has not been singled out. What has happened is that there have been brought before the Court, formally and in due course, sworn statements branding his reports as lies and thus imposing upon him the alternatives of substantiating those reports or assuming responsibility for their publication. Jurado would have the Court clarify in what capacity whether a journalist, or as a member of the bar he has been cited in these proceeding. Thereby he resurrects the issue he once raised in a similar earlier proceeding: that he is being called to account as a lawyer for his statements as a journalist. This is not the case at all. Upon the doctrines and principles already inquired into and cited, he is open to sanctions as journalist who has misused and abused press freedom to put the judiciary in clear and present to the danger of disrepute and of public obdium and opprobrium, detriment and prejudice of the administration of justice. That he is at the same time a member of the bar has nothing to do with the setting in of those sanctions, although it may aggravate liability. At any rate, what was said about the matter in that earlier case is equally cogent here:

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respondent was called over the phone by a leading member of the Court and was asked to dismiss the cases against two Members of the Court." Statements of the respondent saying that the SCs order '"heightens the people's apprehension over the justice system in this country, especially because the people have been thinking that only the small fly can get it while big fishes go scot-free was publicized in leading newspapers. Now, the Court Resolved to require respondent to explain in writing why he should not be punished for contempt of court for making such public statements reported in the media. Respondent then sought to get some members of the Court to inhibit themselves in the resolution of the Zaldivar case for alleged bias and prejudice against him. A little later, he in effect asked the whole Court to inhibit itself from passing upon the Issue involved in proceeding and to pass on responsibility for this matter to the Integrated Bar of the Philippines, upon the ground that respondent cannot expect due process from this Court, that the Court has become incapable of judging him impartially and fairly. The Court found respondent guilty of contempt of court and indefinitely suspended from the practice of law. Now, he assails said conviction, invoking his freedom of speech. Counsel for respondent urges that it is error "for this Court to apply the "visible tendency" rule rather than the "clear and present danger" rule in disciplinary and contempt charges." ISSUE: Whether or Not there was a violation of the freedom of speech/expression. RULING: There was no violation. The Court did not purport to announce a new doctrine of "visible tendency," it was simply paraphrasing Section 3 (d) of Rule 71 of the Revised Rules of Court which penalizes a variety of contumacious conduct including: "any improper conduct tending, directly or indirectly, to impede, obstruct or degrade the administration of justice." Under either the "clear and present danger" test or the "balancing-ofinterest test," the Court held that the statements made by respondent Gonzalez are of such a nature and were made in such a manner and under such circumstances, as to transcend the permissible limits of free speech. What is here at stake is the authority of the Supreme Court to confront and prevent a "substantive evil" consisting not only of the obstruction of a free and fair hearing of a particular case but also the avoidance of the broader evil of the degradation of the judicial system of a country and the destruction of the standards of professional conduct required from members of the bar and officers of the courts, which has some implications to the society. SWS vs. ASUNCION 228 SCRA 11 (1993) (Xyza Gemelo) UNITED vs. GUTIERREZ 315 SCRA 423 (1990) IN RE PUBLISHED 385 SCRA 285 (2002) IN THE MATTERMACASAET 561 SCRA 395 (2008)

IN RE RAMON TULFO AM NO. 90-4-1545-0 APRIL 7, 1990 Facts: In Oct. 13, 1989, Tulfo wrote an article in his column in PDI 'On Target' stating that the Supreme Court rendered an idiotic decision in legalizing checkpoints, and again on Oct. 16, 1989, where he called the Supreme Court stupid and "sangkatutak na mga bobo justices of the Philippine Supreme Court". Tulfo was required to show cause why he should not be punished for contempt. Tulfo said that he was just reacting emotionally because he had been a victim of harassment in the checkpoints, and "idiotic" meant illogical and unwise, and "bobo" was just quoted from other attorneys, and since the case had been decided and terminated, there was not contempts. Lastly, the article does not pose any clear and present danger to the Supreme court. Issue: Whether or Not Tulfo is in contempt. Ruling: Yes. At the time Tulfo wrote the article, the checkpoints case had not yet been decided upon, and the Supreme Court was still acting on an MR filed from the CA. The power to punish is inherent as it is essential for self-preservation. Contempt of court is defiance of the authority, justice and dignity of the courts. It brings disrepute to the court. There are two kinds of publications which can be punished for contempt: a. those whose object is to affect the decision in a pending case. b. those whose object is to bring courts to discredit. Tulfo's article constituted both. It should have been okay to criticize if respectful language was used, but if its object is only to degrade and ridicule, then it is clearly an obstruction of justice. Nothing constructive can be gained from them. Being emotional is no excuse for being insulting. Quoting is not an excuse also, because at the end of his article, Tulfo said, "So you bobo justices, watch out!" Also, he said he was not sorry for having written the articles. Tulfo is found in contempt of court and is gravely censured.

e. SYMBOLIC EXPRESSION f. ASSEMBLY AND PETITION

DELA CRUZ vs. CA 305 SCRA 303 (1999)

Zaldivar vs. Sandiganbayan February 1, 1989 FACTS: The case stemmed from the resolution of the Supreme Court stopping the respondent from investigating graft cases involving Antique Gov. Enrique Zaldivar. The Court ruled that since the adoption of the 1987 Constitution, respondents powers as Tanodbayan have been superseded by the creation of the Office of the Ombudsman, he however becomes the Special Prosecutor of the State, and can only conduct an investigation and file cases only when so authorized by the Ombudsman. A motion for reconsideration was filed by the respondent wherein he included statements which were unrelated in the Issue raised in the Court. This include: (a)That he had been approached twice by a leading member of the court and he was asked to 'go slow on Zaldivar and 'not to be too hard on him; (b) That he "was approached and asked to refrain from investigating the COA report on illegal disbursements in the Supreme Court because 'it will embarass the Court;" and (c) that in several instances, the undersigned

D.

CONTENT-NEUTRAL RESTRICTIONS 1. REGULATION OF POLITICAL CAMPAIGN OSMEA vs. COMELEC 288 SCRA447 (1998) ABS-CBN vs. COMELEC 323 SCRA 811 (2000) SWS vs. COMELEC 357 SCRA 497 (2001) 2. FREEDOM OF ASSEMBLY
NESTLE PHILIPPINES vs. SANCHEZ

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154 SCRA 542 (Metong Guhiling)

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adverted to in Osmea v. Comelec,where the Court referred to it as a "content-neutral" regulation of the time, place, and manner of holding public assemblies. A fair and impartial reading of B.P. No. 880 thus readily shows that it refers to all kinds of public assemblies22 that would use public places. The reference to "lawful cause" does not make it contentbased because assemblies really have to be for lawful causes, otherwise they would not be "peaceable" and entitled to protection. Neither are the words "opinion," "protesting" and "influencing" in the definition of public assembly content based, since they can refer to any subject. The words "petitioning the government for redress of grievances" come from the wording of the Constitution, so its use cannot be avoided. Finally, maximum tolerance is for the protection and benefit of all rallyists and is independent of the content of the expressions in the rally. Furthermore, the permit can only be denied on the ground of clear and present danger to public order, public safety, public convenience, public morals or public health. Second Issue: No, the CPR is not constitutional. This Court reiterates its basic policy of upholding the fundamental rights of our people, especially freedom of expression and freedom of assembly. In several policy addresses, Chief Justice Artemio V. Panganiban has repeatedly vowed to uphold the liberty of our people and to nurture their prosperity. He said that "in cases involving liberty, the scales of justice should weigh heavily against the government and in favor of the poor, the oppressed, the marginalized, the dispossessed and the weak. Indeed, laws and actions that restrict fundamental rights come to the courts with a heavy presumption against their validity. These laws and actions are subjected to heightened scrutiny." For this reason, the so-called calibrated preemptive response policy has no place in our legal firmament and must be struck down as a darkness that shrouds freedom. It merely confuses our people and is used by some police agents to justify abuses.

Subayco vs Sandiganbayan Aug 21, 1986 Facts: During the Martial Law days, one of the biggest protest rallies was blueprinted as a Welga ng Bayan at Escalante, Negros Occidental. It ended in tragedy when Twenty (20) demonstrators were shot dead and twenty-four (24) others were wounded by the military and para-military forces of the Marcos government. Of several persons charged with various counts of murder and frustrated murder, only three (3) were convicted Generoso N. Subayco, Alfredo T. Alcalde and Eleuterio O. Ibaez were convicted by the respondent Sandiganbayan. They now come to this Court insisting on their innocence and pleading to be set free. Ruling: We deny their petition and we warn our military and police authorities that they cannot shoot people who are exercising their right to peacefully assemble and petition the government for redress of grievance. The use of bullets to break up an assembly of people petitioning for redress of grievance cannot but be bewailed. It is bound to happen again for as long as abuses in government abound. Precisely to help put a brake on official abuses, people empowerment was codified in various provisions of the 1987 Constitution. It is high time to remind our officials that under our Constitution power does not come from the barrel of a gun but from the ballots of the people. It thus important to know the unexpurgated will of the people for in a republican government, it is the people who should truly rule. Consequently, the right of the people to assemble peacefully and to petition for redress of grievance should not be abridged by officials momentarily holding the powers of government. The Constitution did not engage in mystical teaching when it proclaimed in solemn tone that "sovereignty resides in the people and all government authority emanates from them." It should be clear even to those with intellectual deficits that when the sovereign people assemble to petition for redress of grievances, all should listen, especially the government. For in a democracy, it is the people who count; those who are deaf to their grievances are ciphers

3.FREEDOM OF ASSOCIATION AND THE RIGHT TO STRIKE IN THE PUBLIC SECTOR

SSS Employees Association vs Court of Appeals July 28, 1989

Bayan vs Ermita April 25, 2006 Facts: The first petitioners, Bayan, et al. allege that they are citizens and taxpayers of the Philippines and that their rights as organizations and individuals were violated when the rally they participated in on October 6, 2005 was violently dispersed by policemen implementing Batas Pambansa (B.P.) No. 880. Petitioners Bayan, et al., contend that Batas Pambansa No. 880 is clearly a violation of the Constitution and the International Covenant on Civil and Political Rights and other human rights treaties of which the Philippines is a signatory. They argue that B.P. No. 880 requires a permit before one can stage a public assembly regardless of the presence or absence of a clear and present danger. It also curtails the choice of venue and is thus repugnant to the freedom of expression clause as the time and place of a public assembly form part of the message for which the expression is sought. Furthermore, it is not content-neutral as it does not apply to mass actions in support of the government. The words "lawful cause," "opinion," "protesting or influencing" suggest the exposition of some cause not espoused by the government. Also, the phrase "maximum tolerance" shows that the law applies to assemblies against the government because they are being tolerated. As a content-based legislation, it cannot pass the strict scrutiny test. Issues: Whether or not B.P. No. 880 is a content-based or contentneutral regulation. Whether or not the Calibrated Preemptive Response (CPR) is constitutional. Ruling: First Issue: It is a content-neutral regulation. A reading of BP 880 is clear that it is not an absolute ban of public assemblies but a restriction that simply regulates the time, place and manner of the assemblies. This was

Facts: Members of SSS Employees Association (SSSEA) went on strike after the SSS failed to act on the union's demands, which included: implementation of the provisions of the old SSS-SSSEA collective bargaining agreement (CBA) on check-off of union dues; payment of accrued overtime pay, night differential pay and holiday pay; conversion of temporary or contractual employees with six (6) months or more of service into regular and permanent employees and their entitlement to the same salaries, allowances and benefits given to other regular employees of the SSS; and payment of the children's allowance of P30.00, and after the SSS deducted certain amounts from the salaries of the employees and allegedly committed acts of discrimination and unfair labor practices. On June 11, 1987, the SSS filed with the Regional Trial Court of Quezon City a complaint for damages with a prayer for a writ of preliminary injunction against petitioners. Issue: Whether or not the employees of Social Security System (SSS) have the right to strike? Ruling: No, SSS employees do not have the right to strike. Considering that under the 1987 Constitution "[t]he civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original charters" [Art. IX(B), Sec. .2(l) see also Sec. 1 of E.O. No. 180 where the employees in the civil service are denominated as "government employees"] and that the SSS is one such government-controlled corporation with an original charter, having been created under R.A. No. 1161, its employees are part of the civil service [NASECO v. NLRC, G.R. Nos. 69870 & 70295, November 24,1988] and are covered by the Civil Service Commission's memorandum prohibiting strikes. This being the case, the strike staged by the employees of the SSS was illegal. Government employees may, therefore, through their unions or associations, either petition the Congress for the betterment of the

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terms and conditions of employment which are within the ambit of legislation or negotiate with the appropriate government agencies for the improvement of those which are not fixed by law. If there be any unresolved grievances, the dispute may be referred to the Public Sector Labor - Management Council for appropriate action. But employees in the civil service may not resort to strikes, walk-outs and other temporary work stoppages, like workers in the private sector, to pressure the Govemment to accede to their demands. As now provided under Sec. 4, Rule III of the Rules and Regulations to Govern the Exercise of the Right of Government- Employees to SelfOrganization, which took effect after the instant dispute arose, "[t]he terms and conditions of employment in the government, including any political subdivision or instrumentality thereof and government- owned and controlled corporations with original charters are governed by law and employees therein shall not strike for the purpose of securing changes thereof." Dela Cruz vs Court of Appeals March 25, 1999 Facts: Petitioners are public school teachers from various schools in Metro Manila who were simultaneously charged, preventively suspended, and eventually dismissed in October 1990 by then Secretary Isidro D. Cario of the Department of Education, Culture and Sports (DECS), for participating in the mass action/illegal strike in Sept. 19-21, 1990. Petitioners contend that the Court of Appeals grievously erred in affirming the CSC resolutions finding them guilty of conduct prejudicial to the best interest of the service when their only "offense" was to exercise their constitutional right to peaceably assemble and petition the government for redress of their grievances. Moreover petitioners insist that the mass actions of September/October 1990 were not "strikes" as there was no actual disruption of classes. Petitioners therefore ask for exoneration or, in the alternative, award of back wages for the period of three (3) years when they were not allowed to work while awaiting resolution of their appeals by the MSPB and CSC, deducting the period of six (6) months' suspension eventually meted them. Ruling: The petitions must be denied in view of previous rulings of this Court already settling all the issues raised by petitioners. It is a very desirable and necessary judicial practice that when a court has laid down a principle of law as applicable to a certain state of facts, it will adhere to that principle and apply it to all future cases where the facts are substantially the same. Stare decisis et non quieta movere. Stand by the decisions and disturb not what is settled.. As early as 18 December 1990 we have categorically ruled in the consolidated cases of Manila Public School Teachers Association v. Laguio Jr., and Alliance of Concerned Teachers v. Hon. Isidro Cario that the mass actions of September/October 1990 staged by Metro Manila public school teachers "amounted to a strike in every sense of the term, constituting as they did, a concerted and unauthorized stoppage of or absence from work which it was said teachers' sworn duty to perform, carried out for essentially economic reasons to protest and pressure the Government to correct what, among other grievances, the strikers perceived to be the unjust or prejudicial implementation of the salary standardization law insofar as they were concerned, the non-payment or delay in payment of various fringe benefits and allowances to which they were entitled, and the imposition of additional teaching loads and longer teaching hours." In Rolando Gan v. Civil Service Commission, we denied the claim that the teachers were thereby denied their rights to peaceably assemble and petition the government for redress of grievances reasoning that this constitutional liberty to be upheld, like any other liberty, must be exercised within reasonable limits so as not to prejudice the public welfare. But the public school teachers in the case of the 1990 mass actions did not exercise their constitutional rights within reasonable limits. On the contrary, they committed acts prejudicial to the best interest of the service by staging the mass protests on regular school days, abandoning their classes and refusing to go back even after they had been ordered to do so. Had the teachers availed of their free time recess, after classes, weekends or holidays to dramatize their grievances and to dialogue with the proper authorities within the bounds of law, no one not the DECS, the CSC or even the Supreme Court could have held them liable for their participation in the mass actions. Sta Clara vs Gaston January 23, 2002 Facts: The complaint alleged that private respondents herein [were] residents of San Jose Avenue, Sta. Clara Subdivision, Mandalagan, Bacolod City. They purchased their lots in the said subdivision sometime in 1974, and at the time of purchase, there was no mention

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or requirement of membership in any homeowners association. From that time on, they have remained non-members of SCHA. The case arose when the subdivision guards refused to let private respondent enter the subdivision premises by reason of not having a gate pass. The complaint further alleged that these acts of the petitioners herein done in the presence of other subdivision owners had caused private respondents to suffer moral damage. Petitioners contend that it is Home Insurance and Guaranty Corporation which has jurisdiction over the case since it is an intracorporate controversy because its by-laws contains a provision that all real estate owners in Sta. Clara Subdivision automatically become members of the association. The private respondents, having become lot owners of Sta. Clara Subdivision in 1974 after the approval by the SEC of SCHAs articles of incorporation and by-laws, became members automatically in 1974 of SCHA Issue: Are Private Respondents SCHA Members?

Ruling: In order to determine if the HIGC has jurisdiction over the dispute, it is necessary to resolve preliminarily -- on the basis of the allegations in the Complaint -- whether private respondents are members of the SCHA. Petitioners contend that because the Complaint arose from intracorporate relations between the SCHA and its members, the HIGC therefore has no jurisdiction over the dispute. To support their contention that private respondents are members of the association, petitioners cite the SCHAs Articles of Incorporation and By-laws which provide that all landowners of the Sta. Clara Subdivision are automatically members of the SCHA. We are not persuaded. The constitutionally guaranteed freedom of association includes the freedom not to associate. The right to choose with whom one will associate oneself is the very foundation and essence of that partnership. It should be noted that the provision guarantees the right to form an association. It does not include the right to compel others to form or join one. More to the point, private respondents cannot be compelled to become members of the SCHA by the simple expedient of including them in its Articles of Incorporation and By-laws without their express or implied consent. True, it may be to the mutual advantage of lot owners in a subdivision to band themselves together to promote their common welfare. But that is possible only if the owners voluntarily agree, directly or indirectly, to become members of the association. True also, memberships in homeowners associations may be acquired in various ways -- often through deeds of sale, Torrens certificates or other forms of evidence of property ownership. In the present case, however, other than the said Articles of Incorporation and By-laws, there is no showing that private respondents have agreed to be SCHA members.

Padcom vs Ortigas May 9, 2002 Facts: Petitioner Padcom Condominium Corporation (hereafter PADCOM) owns and manages the Padilla Office Condominium Building (PADCOM Building). The land on which the building stands was originally acquired from the Ortigas & Company, Limited Partnership (OCLP), by Tierra Development Corporation (TDC) under a Deed of Sale dated 4 September 1974. Among the terms and conditions in the deed of sale was the requirement that the transferee and its successor-in-interest must become members of an association for realty owners and long-term lessees in the area later known as the Ortigas Center. In 1982, respondent Ortigas Center Association, Inc. (hereafter the Association) was organized to advance the interests and promote the general welfare of the real estate owners and long-term lessees of lots in the Ortigas Center. It sought the collection of membership dues in the amount of two thousand seven hundred twenty-four pesos and forty centavos (P2,724.40) per month from PADCOM. The corporate books showed that PADCOM owed the Association P639,961.47, representing membership dues, interests and penalty charges from April 1983 to June 1993. In view of PADCOMs failure and refusal to pay its arrears in monthly dues, including interests and penalties thereon, the Association filed a complaint for collection of sum of money. PADCOM contends that it cannot be compelled to be a member of the Association solely by virtue of the "automatic membership" clause that appears on the title of the property and the Deed of Transfer. In 1975, when it bought the land, the Association was still inexistent. Therefore, the provision on automatic membership was

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anticipatory in nature, subject to the actual formation of the Association and the subsequent formulation of its implementing rules. Issue: Whether or not the automatic membership clause on the title to the property violated PADCOMs freedom to associate under the Constitution. Ruling: Neither are we convinced by PADCOMs contention that the automatic membership clause is a violation of its freedom of association. PADCOM was never forced to join the association. It could have avoided such membership by not buying the land from TDC. Nobody forced it to buy the land when it bought the building with the annotation of the condition or lien on the Certificate of Title thereof and accepted the Deed. PADCOM voluntarily agreed to be bound by and respect the condition, and thus to join the Association. GSIS vs Kapisanan ng mga Manggagaw December 6, 2006 Facts: A four-day October 2004 concerted demonstration, rallies and en masse walkout waged/held in front of the GSIS main office in Roxas Boulevard, Pasay City, started it all. Forming a huge part of the October 4 to October 7, 2004 mass action participants were GSIS personnel, among them members of the herein respondent Kapisanan Ng Mga Manggagawa sa GSIS ("KMG" or the "Union"), a public sector union of GSIS rank-and-file employees. Ruling: Employeess in the public service may not engage in strikes or in concerted and unauthorized stoppage of work; that the right of government employees to organize is limited to the formation of unions or associations, without including the right to strike. Jacinto v. Court of Appeals came next and there we explained: Specifically, the right of civil servants to organize themselves was positively recognized in Association of Court of Appeals Employees vs. Ferrer-Caleja. But, as in the exercise of the rights of free expression and of assembly, there are standards for allowable limitations such as the legitimacy of the purpose of the association, [and] the overriding considerations of national security . . . . As regards the right to strike, the Constitution itself qualifies its exercise with the provision "in accordance with law." This is a clear manifestation that the state may, by law, regulate the use of this right, or even deny certain sectors such right. Executive Order 180 which provides guidelines for the exercise of the right of government workers to organize, for instance, implicitly endorsed an earlier CSC circular which "enjoins under pain of administrative sanctions, all government officers and employees from staging strikes, demonstrations, mass leaves, walkouts and other forms of mass action which will result in temporary stoppage or disruption of public service" by stating that the Civil Service law and rules governing concerted activities and strikes in government service shall be observed. And in the fairly recent case of Gesite v. Court of Appeals,24 the Court defined the limits of the right of government employees to organize in the following wise: It is relevant to state at this point that the settled rule in this jurisdiction is that employees in the public service may not engage in strikes, mass leaves, walkouts, and other forms of mass action that will lead in the temporary stoppage or disruption of public service. The right of government employees to organize is limited to the formation of unions or associations only, without including the right to strike, adding that public employees going on disruptive unauthorized absences to join concerted mass actions may be held liable for conduct prejudicial to the best interest of the service. Significantly, 1986 Constitutional Commission member Eulogio Lerum, answering in the negative the poser of whether or not the right of government employees to self-organization also includes the right to strike, stated: When we proposed this amendment providing for self organization of government employees, it does not mean that because they have the right to organize, they have also the right to strike. That is a different matter. xxx

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with Maria Kalaw Katigbak as its Chairman and Brig. Gen. Wilfredo C. Estrada as its Vice-Chairman, also named respondents. In a resolution of a sub-committee of respondent Board of October 23, 1984, a permit to exhibit the film Kapit sa Patalim under the classification "For Adults Only," with certain changes and deletions enumerated was granted. A motion for reconsideration was filed by petitioners stating that the classification of the film "For Adults Only" was without basis. Then on November 12, 1984, respondent Board released its decision: "Acting on the applicant's Motion for Reconsideration dated 29 October 1984, the Board, after a review of the resolution of the sub-committee and an examination of the film, Resolves to affirm in toto the ruling of the sub-committee. Considering, however, certain vital deficiencies in the application, the Board further Resolves to direct the Chairman of the Board to Withheld the issuance of the Permit to exhibit until these deficiencies are supplied. Hence this petition. Issue: Whether or not the classification of the movie as For Adults Only is without legal and factual basis and is exercised as impermissible restraint of artistic expression. Ruling: No, it is not without legal and factual basis and is also not exercised as an impermissible restraint of artistic expression. The test, to repeat, to determine whether freedom of expression may be limited is the clear and present danger of an evil of a substantive character that the State has a right to prevent. Such danger must not only be clear but also present. There should be no doubt that what is feared may be traced to the expression complained of. The causal connection must be evident. Also, there must be reasonable apprehension about its imminence. The time element cannot be ignored. Nor does it suffice if such danger be only probable. There is the requirement of its being well-nigh inevitable. The basic postulate, wherefore, as noted earlier, is that where the movies, theatrical productions radio scripts, television programs, and other such media of expression are concerned included as they are in freedom of expression censorship, especially so if an entire production is banned, is allowable only under the clearest proof of a clear and present danger of a substantive evil to public public morals, public health or any other legitimate public interest. In the applicable law, Executive Order No. 876, reference was made to respondent Board "applying contemporary Filipino cultural values as standard, words which can be construed in an analogous manner. Moreover, as far as the question of sex and obscenity are concerned, it cannot be stressed strongly that the arts and letters "shall be under the patronage of the State. That is a constitutional mandate. It will be less than true to its function if any government office or agency would invade the sphere of autonomy that an artist enjoys. This being a certiorari petition, the question before the Court is whether or not there was a grave abuse of discretion. That there was an abuse of discretion by respondent Board is evident in the light of the difficulty and travail undergone by petitioners before Kapit sa Patalim was classified as "For Adults Only," without any deletion or cut. Moreover its perception of what constitutes obscenity appears to be unduly restrictive. This Court concludes then that there was an abuse of discretion. Nonetheless, there are not enough votes to maintain that such an abuse can be considered grave. Accordingly, certiorari does not lie. This conclusion finds support in this explanation of respondents in its Answer to the amended petition: "The adult classification given the film serves as a warning to theater operators and viewers that some contents of Kapit are not fit for the young. Some of the scenes in the picture were taken in a theater-club and a good portion of the film shots concentrated on some women erotically dancing naked, or at least nearly naked, on the theater stage. Another scene on that stage depicted the women kissing and caressing as lesbians. And toward the end of the picture, there exists scenes of excessive violence attending the battle between a group of robbers and the police. The vulnerable and imitative in the young audience will misunderstand these scenes." Further: "Respondents further stated in its answer that petitioner company has an option to have the film reclassified to ForGeneral-Patronage if it would agree to remove the obscene scenes and pare down the violence in the film." (Rhys Guiamadel) IGLESIA NI CRISTO, (INC.), petitioner, vs. THE HONORABLE COURT OF APPEALS, BOARD OF REVIEW FOR MOVING PICTURES AND TELEVISION and HONORABLE HENRIETTA S. MENDOZA, respondents.

4.

MOVIES CENSORSHIP
Gonzales vs Kalaw Katigbak July 22, 1985

Facts: The principal petitioner is Jose Antonio U. Gonzalez, President of the Malaya Films, a movie production outfit duly registered as a single proprietorship with the Bureau of Domestic Trade. The respondent is the Board of Review for Motion Pictures and Television,

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

FACTS: Petitioner Iglesia ni Cristo, a duly organized religious organization, has a television program entitled "Ang Iglesia ni Cristo". The program presents and propagates petitioner's religious beliefs, doctrines and practices often times in comparative studies with other religions. Sometime in the months of September, October and November 1992 petitioner submitted to the respondent Board of Review for Moving Pictures and Television the VTR tapes of its TV program Series Nos. 116, 119, 121 and 128. The Board classified the series as "X" or not for public viewing on the ground that they "offend and constitute an attack against other religions which is expressly prohibited by law." ISSUES: The basic issues can be reduced into two: (1) first, whether the respondent Board has the power to review petitioner's TV program "Ang Iglesia ni Cristo," and (2) second, assuming it has the power, whether it gravely abused its discretion when it prohibited the airing of petitioner's religious program, series Nos. 115, 119 and 121, for the reason that they constitute an attack against other religions and that they are indecent, contrary to law and good customs. RULING: The first issue can be resolved by examining the powers of the Board under PD No. 1986. The law gives the Board the power to screen, review and examine all "television programs." By the clear terms of the law, the Board has the power to "approve, delete . . . and/or prohibit the . . . exhibition and/or television broadcast of . . . television programs . . ." The law also directs the Board to apply "contemporary Filipino cultural values as standard" to determine those which are objectionable for being "immoral, indecent, contrary to law and/or good customs, injurious to the prestige of the Republic of the Philippines and its people, or with a dangerous tendency to encourage the commission of violence or of a wrong or crime." Petitioner contends that the term "television program" should not include religious programs like its program "Ang Iglesia ni Cristo." A contrary interpretation, it is urged, will contravene section 5, Article III of the Constitution which guarantees that "no law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed." We reject petitioner's submission which need not set us adrift in a constitutional voyage towards an uncharted sea. Freedom of religion has been accorded a preferred status by the framers of our fundamental laws, past and present. We have affirmed this preferred status well aware that it is "designed to protect the broadest possible liberty of conscience, to allow each man to believe as his conscience directs, to profess his beliefs, and to live as he believes he ought to live, consistent with the liberty of others and with the common good." We thus reject petitioner's postulate that its religious program is per se beyond review by the respondent Board. Its public broadcast on TV of its religious program brings it out of the bosom of internal belief. Television is a medium that reaches even the eyes and ears of children. The Court iterates the rule that the exercise of religious freedom can be regulated by the State when it will bring about the clear and present danger of some substantive evil which the State is duty bound to prevent, i.e., serious detriment to the more overriding interest of public health, public morals, or public welfare. A laissez faire policy on the exercise of religion can be seductive to the liberal mind but history counsels the Court against its blind adoption as religion is and continues to be a volatile area of concern in our country today. As to the Second Issue: Deeply ensconced in our fundamental law is its hostility against all prior restraints on speech, including religious speech. Hence, any act that restrains speech is hobbled by the presumption of invalidity and should be greeted with furrowed brows. It is the burden of the respondent Board to overthrow this presumption. If it fails to discharge this burden, its act of censorship will be struck down. It failed in the case at bar. The evidence shows that the respondent Board x-rated petitioners TV series for "attacking" either religions, especially the Catholic church. An examination of the evidence, especially Exhibits "A," "A-1," "B," "C," and "D" will show that the so-called "attacks" are mere criticisms of some of the deeply held dogmas and tenets of other religions. The videotapes were not viewed by the respondent court as they were not presented as evidence. Yet they were considered by the respondent court as indecent, contrary to law and good customs, hence, can be prohibited from public viewing under section 3(c) of PD 1986. This ruling clearly suppresses petitioner's freedom of speech and interferes with its right to free exercise of religion. In x-rating the TV program of the petitioner, the respondents failed to apply the clear and present danger rule. In American Bible Society v. City of Manila, this Court held: "The constitutional guaranty of free exercise and enjoyment of religious profession and worship carries with it the right to disseminate religious information. Any restraint of

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such right can be justified like other restraints on freedom of expression on the ground that there is a clear and present danger of any substantive evil which the State has the right to prevent." In Victoriano vs. Elizalde Rope Workers Union, we further ruled that ". . . it is only where it is unavoidably necessary to prevent an immediate and grave danger to the security and welfare of the community that infringement of religious freedom may be justified, and only to the smallest extent necessary to avoid the danger." Prior restraint on speech, including religious speech, cannot be justified by hypothetical fears but only by the showing of a substantive and imminent evil which has taken the life of a reality already on ground. It is also opined that it is inappropriate to apply the clear and present danger test to the case at bar because the issue involves the content of speech and not the time, place or manner of speech. Allegedly, unless the speech is first allowed, its impact cannot be measured, and the causal connection between the speech and the evil apprehended cannot be established. The contention overlooks the fact that the case at bar involves videotapes that are pre-taped and hence, their speech content is known and not an X quantity. Given the specific content of the speech, it is not unreasonable to assume that the respondent Board, with its expertise, can determine whether its sulphur will bring about the substantive evil feared by the law. IN VIEW WHEREOF, the Decision of the respondent Court of Appeals dated March 24, 1995 is affirmed insofar as it sustained the jurisdiction of the respondent MTRCB to review petitioner's TV program entitled "Ang Iglesia ni Cristo," and is reversed and set aside insofar as it sustained the action of the respondent MTRCB xrating petitioner's TV Program Series Nos. 115, 119, and 121. No costs.

5.

RADIO BROADCAST

EASTERN BROADCASTING CORPORATION (DYRE) petitioner, vs. THE HON. JOSE P. DANS, JR., MINISTER OF TRANSPORTATION & COMMUNICATIONS, THE HON. CEFERINO S. CARREON, COMMISSIONER, NATIONAL TELECOM., COMMISSION, ET AL., respondents. This petition was filed to compel the respondents to allow the reopening of Radio Station DYRE which had been summarily closed on grounds of national security. The petitioner contended that it was denied due process when it was closed on the mere allegation that the radio station was used to incite people to sedition. it alleged that no hearing was held and not a bit of proof was submitted to establish a factual basis for the closure. The petitioner was not informed beforehand why administrative action which closed the radio station was taken against it. No action was taken by the respondents to entertain a motion seeking the reconsideration of the closure action. The petitioner also raised the issue of freedom of speech. It appears from the records that the respondents' general charge of "inciting people to commit acts of sedition" arose from the petitioner's shift towards what it stated was the coverage of public events and the airing of programs geared towards public affairs. The case has become moot and academic. However, for the guidance of inferior courts and administrative tribunals exercising quasi-judicial functions, the Court issues the following guidelines: (1) The cardinal primary requirements in administrative proceedings laid down by this Court in Ang Tibay v. Court of Industrial Relations (69 Phil. 635) should be followed before a broadcast station may be closed or its operations curtailed. 1 (2) It is necessary to reiterate that while there is no controlling and precise definition of due process, it furnishes an unavoidable standard to which government action must conform in order that any deprivation of life, liberty, or property, in each appropriate case, may be valid (Ermita-Malate Hotel and Motel Operators Association v. City Mayor, 20 SCRA 849). (3) All forms of media, whether print or broadcast, are entitled to the broad protection of the freedom of speech and expression clause. The test for limitations on freedom of expression continues to be the clear and present danger rule that words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that the lawmaker has a right to prevent. (4) The clear and present danger test, however, does not lend itself to a simplistic and all embracing interpretation applicable to all utterances in all forums. Broadcasting has to be licensed. Airwave frequencies have to be allocated among qualified users. A broadcast corporation cannot simply appropriate a certain frequency without regard for government regulation or for the rights of others.

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

All forms of communication are entitled to the broad protection of the freedom of expression clause. Necessarily, however, the freedom of television and radio broadcasting is somewhat lesser in scope than the freedom accorded to newspaper and print media. The American Court in Federal Communications Commission v. Pacifica Foundation (438 U.S. 726), confronted with a patently offensive and indecent regular radio program, explained why radio broadcasting, more than other forms of communications, receives the most limited protection from the free expression clause. First, broadcast media have established a uniquely pervasive presence in the lives of all citizens, Material presented over the airwaves confronts the citizen, not only in public, but in the privacy of his home. Second, broadcasting is uniquely accessible to children. Bookstores and motion picture theaters may be prohibited from making certain material available to children, but the same selectivity cannot be done in radio or television, where the listener or viewer is constantly tuning in and out. (5) The clear and present danger test, therefore, must take the particular circumstances of broadcast media into account. The supervision of radio stations-whether by government or through selfregulation by the industry itself calls for thoughtful, intelligent and sophisticated handling. (6) The freedom to comment on public affairs is essential to the vitality of a representative democracy. (7) Broadcast stations deserve the special protection given to all forms of media by the due process and freedom of expression clauses of the Constitution. WHEREFORE, the case having become moot and academic, the petitioner's motion to withdraw or dismiss the petition is hereby GRANTED.

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only critical, but vital to the exercise of their professions. The right of access to information ensures that these freedoms are not rendered nugatory by the government's monopolizing pertinent information. For an essential element of these freedoms is to keep open a continuing dialogue or process of communication between the government and the people. It is in the interest of the State that the channels for free political discussion be maintained to the end that the government may perceive and be responsive to the people's will. Yet, this open dialogue can be effective only to the extent that the citizenry is informed and thus able to formulate its will intelligently. Only when the participants in the discussion are aware of the issues and have access to information relating thereto can such bear fruit. The right to information is an essential premise of a meaningful right to speech and expression. But this is not to say that the right to information is merely an adjunct of and therefore restricted in application by the exercise of the freedoms of speech and of the press. Far from it. The right to information goes hand-in-hand with the constitutional policies of full public disclosure * and honesty in the public service. ** It is meant to enhance the widening role of the citizenry in governmental decision-making as well as in checking abuse in government. Yet, like all the constitutional guarantees, the right to information is not absolute. As stated in Legaspi, the people's right to information is limited to "matters of public concern," and is further "subject to such limitations as may be provided by law." Similarly, the State's policy of full disclosure is limited to "transactions involving public interest," and is "subject to reasonable conditions prescribed by law." Hence, before mandamus may issue, it must be clear that the information sought is of "public interest" or "public concern," and is not exempted by law from the operation of the constitutional guarantee [Legazpi v. Civil Service Commission, supra, at p. 542.] The Court has always grappled with the meanings of the terms "public interest" and "public concern". As observed in Legazpi: In determining whether or not a particular information is of public concern there is no rigid test which can be applied. "Public concern" like "public interest" is a term that eludes exact definition. Both terms embrace a broad spectrum of subjects which the public may want to know, either because these directly affect their lives, or simply because such matters naturally arouse the interest of an ordinary citezen. In the final analysis, it is for the courts to determine on a case by case basis whether the matter at issue is of interest or importance, as it relates to or affects the public. [Ibid. at p. 541] The information sought by petitioners in this case is the truth of reports that certain Members of the Batasang Pambansa belonging to the opposition were able to secure "clean" loans from the GSIS immediately before the February 7, 1986 election through the intercession of th eformer First Lady, Mrs. Imelda Marcos. The GSIS is a trustee of contributions from the government and its employees and the administrator of various insurance programs for the benefit of the latter. Undeniably, its funds assume a public character. It is therefore the legitimate concern of the public to ensure that these funds are managed properly with the end in view of maximizing the benefits that accrue to the insured government employees. Moreover, the supposed borrowers were Members of the defunct Batasang Pambansa who themselves appropriated funds for the GSIS and were therefore expected to be the first to see to it that the GSIS performed its tasks with the greatest degree of fidelity and that an its transactions were above board. In sum, the public nature of the loanable funds of the GSIS and the public office held by the alleged borrowers make the information sought clearly a matter of public interest and concern. A second requisite must be met before the right to information may be enforced through mandamus proceedings, viz., that the information sought must not be among those excluded by law. Respondent maintains that a confidential relationship exists between the GSIS and its borrowers. It is argued that a policy of confidentiality restricts the indiscriminate dissemination of information. Yet, respondent has failed to cite any law granting the GSIS the privilege of confidentiality as regards the documents subject of this petition. His position is apparently based merely on considerations of policy. The judiciary does not settle policy issues. The Court can only declare what the law is, and not what the law should be. Under our system of government, policy issues are within the domain of the political branches of the government, and of the people themselves as the repository of all State power.

g. FREEDOM OF INFORMATION
RICARDO VALMONTE, OSWALDO CARBONELL, DOY DEL CASTILLO, ROLANDO BARTOLOME, LEO OBLIGAR, JUN GUTIERREZ, REYNALDO BAGATSING, JUN "NINOY" ALBA, PERCY LAPID, ROMMEL CORRO and ROLANDO FADUL, petitioners, vs. FELICIANO BELMONTE, JR., respondent. In his comment respondent raises procedural objections to the issuance of a writ of mandamus, among which is that petitioners have failed to exhaust administrative remedies. Respondent claims that actions of the GSIS General Manager are reviewable by the Board of Trustees of the GSIS. Petitioners, however, did not seek relief from the GSIS Board of Trustees. It is therefore asserted that since administrative remedies were not exhausted, then petitioners have no cause of action. ISSUE: Whether or not they are entitled to the documents sought, by virtue of their constitutional right to information. RULING: The pertinent provision under the 1987 Constitution is Art. 111, Sec. 7 which states: 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. An informed citizenry with access to the diverse currents in political, moral and artistic thought and data relative to them, and the free exchange of ideas and discussion of issues thereon, is vital to the democratic government envisioned under our Constitution. The cornerstone of this republican system of government is delegation of power by the people to the State. In this system, governmental agencies and institutions operate within the limits of the authority conferred by the people. Denied access to information on the inner workings of government, the citizenry can become prey to the whims and caprices of those to whom the power had been delegated. The postulate of public office as a public trust, institutionalized in the Constitution (in Art. XI, Sec. 1) to protect the people from abuse of governmental power, would certainly be were empty words if access to such information of public concern is denied, except under limitations prescribed by implementing legislation adopted pursuant to the Constitution. Petitioners are practitioners in media. As such, they have both the right to gather and the obligation to check the accuracy of information the disseminate. For them, the freedom of the press and of speech is not

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

Respondent however contends that in view of the right to privacy which is equally protected by the Constitution and by existing laws, the documents evidencing loan transactions of the GSIS must be deemed outside the ambit of the right to information. When the information requested from the government intrudes into the privacy of a citizen, a potential conflict between the rights to information and to privacy may arise. However, the competing interests of these rights need not be resolved in this case. Apparent from the above-quoted statement of the Court in Morfe is that the right to privacy belongs to the individual in his private capacity, and not to public and governmental agencies like the GSIS. Moreover, the right cannot be invoked by juridical entities like the GSIS. Neither can the GSIS through its General Manager, the respondent, invoke the right to privacy of its borrowers. The right is purely personal in nature and hence may be invoked only by the person whose privacy is claimed to be violated. It may be observed, however, that in the instant case, the concerned borrowers themselves may not succeed if they choose to invoke their right to privacy, considering the public offices they were holding at the time the loans were alleged to have been granted. It cannot be denied that because of the interest they generate and their newsworthiness, public figures, most especially those holding responsible positions in government, enjoy a more limited right to privacy as compared to ordinary individuals, their actions being subject to closer public scrutiny Respondent next asserts that the documents evidencing the loan transactions of the GSIS are private in nature and hence, are not covered by the Constitutional right to information on matters of public concern which guarantees "(a)ccess to official records, and to documents, and papers pertaining to official acts, transactions, or decisions" only. It is argued that the records of the GSIS, a government corporation performing proprietary functions, are outside the coverage of the people's right of access to official records. It is further contended that since the loan function of the GSIS is merely incidental to its insurance function, then its loan transactions are not covered by the constitutional policy of full public disclosure and the right to information which is applicable only to "official" transactions. First of all, the "constituent ministrant" dichotomy characterizing government function has long been repudiated. In ACCFA v. Confederation of Unions and Government Corporations and Offices (G.R. Nos. L-21484 and L-23605, November 29, 1969, 30 SCRA 6441, the Court said that the government, whether carrying out its sovereign attributes or running some business, discharges the same function of service to the people. Consequently, that the GSIS, in granting the loans, was exercising a proprietary function would not justify the exclusion of the transactions from the coverage and scope of the right to information. Considering the intent of the framers of the Constitution which, though not binding upon the Court, are nevertheless persuasive, and considering further that government-owned and controlled corporations, whether performing proprietary or governmental functions are accountable to the people, the Court is convinced that transactions entered into by the GSIS, a government-controlled corporation created by special legislation are within the ambit of the people's right to be informed pursuant to the constitutional policy of transparency in government dealings. In fine, petitioners are entitled to access to the documents evidencing loans granted by the GSIS, subject to reasonable regulations that the latter may promulgate relating to the manner and hours of examination, to the end that damage to or loss of the records may be avoided, that undue interference with the duties of the custodian of the records may be prevented and that the right of other persons entitled to inspect the records may be insured [Legaspi v. Civil Service Commission, supra at p. 538, quoting Subido v. Ozaeta, 80 Phil. 383, 387.] Although citizens are afforded the right to information and, pursuant thereto, are entitled to "access to official records," the Constitution does not accord them a right to compel custodians of official records to prepare lists, abstracts, summaries and the like in their desire to acquire information on matters of public concern. WHEREFORE, the instant petition is hereby granted and respondent General Manager of the Government Service Insurance System is ORDERED to allow petitioners access to documents and records evidencing loans granted to Members of the former Batasang Pambansa, as petitioners may specify, subject to reasonable regulations as to the time and manner of inspection, not incompatible with this decision, as the GSIS may deem necessary.

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LEO ECHEGARAY vs. SECRETARY OF JUSTICE The relevant portions of the Manifestation and Urgent Motion filed by the Secretary of Justice beseeching this Court "to provide the appropriate relief" state: xxx xxx xxx 5. Instead of filing a comment on Judge Ponferrada's Manifestation however, herein respondent is submitting the instant Manifestation and Motion (a) to stress, inter alia, that the non-disclosure of the date of execution deprives herein respondent of vital information necessary for the exercise of his statutory powers, as well as renders nugatory the constitutional guarantee that recognizes the people's right to information of public concern, and (b) to ask this Honorable Court to provide the appropriate relief. 6. The non-disclosure of the date of execution deprives herein respondent of vital information necessary for the exercise of his power of supervision and control over the Bureau of Corrections pursuant to Section 39, Chapter 8, Book IV of the Administrative Code of 1987, in relation to Title III, Book IV of such Administrative Code, insofar as the enforcement of Republic Act No. 8177 and the Amended Rules and Regulations to Implement Republic Act No. 8177 is concerned and for the discharge of the mandate of seeing to it that laws and rules relative to the execution of sentence are faithfully observed. 7. On the other hand, the willful omission to reveal the information about the precise day of execution limits the exercise by the President of executive clemency powers pursuant to Section 19, Article VII (Executive Department) of the 1987 Philippine Constitution and Article 81 of the Revised Penal Code, as amended, which provides that the death sentence shall be carried out "without prejudice to the exercise by the President of his executive powers at all times." (Emphasis supplied) For instance, the President cannot grant reprieve, i.e., postpone the execution of a sentence to a day certain (People v. Vera, 65 Phil. 56, 110 [1937]) in the absence of a precise date to reckon with. The exercise of such clemency power, at this time, might even work to the prejudice of the convict and defeat the purpose of the Constitution and the applicable statute as when the date at execution set by the President would be earlier than that designated by the court. 8. Moreover, the deliberate non-disclosure of information about the date of execution to herein respondent and the public violates Section 7, Article III (Bill of Rights) and Section 28, Article II (Declaration of Principles and State Policies) of the 1987 Philippine Constitution which read: Sec. 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. Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all transactions involving public interest. 9. The "right to information" provision is self-executing. It supplies "the rules by means of which the right to information may be enjoyed (Cooley, A Treatise on the Constitutional Limitations, 167 [1972]) by guaranteeing the right and mandating the duty to afford access to sources of information. Hence, the fundamental right therein recognized may be asserted by the people upon the ratification of the Constitution without need for any ancillary act of the Legislature (Id., at p. 165) What may be provided for by the Legislature are reasonable conditions and limitations upon the access to be afforded which must, of necessity, be consistent with the declared State policy of full public disclosure of all transactions involving public interest (Constitution, Art. II, Sec. 28). However, it cannot be overemphasized that whatever limitation may be prescribed by the Legislature, the right and the duty under Art. III, Sec. 7 have become operative and enforceable by virtue of the adoption of the New Charter." (Decision of the Supreme Court En Banc in Legaspi v. Civil Service Commission, 150 SCRA 530, 534-535 [1987]. The same motion to compel Judge Ponferrada to reveal the date of execution of petitioner Echegaray was filed by his counsel, Atty. Theodore Te, on December 7, 1998. He invoked his client's right to due process and the public's right to information. The Solicitor General, as counsel for public respondents, did not oppose petitioner's motion on the ground that this Court has no more jurisdiction over the process of execution of Echegaray. This Court granted the relief prayed for by the Secretary of Justice and by the counsel of the petitioner in its Resolution of December 15, 1998. There was not a whimper of protest from

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

the public respondents and they are now estopped from contending that this Court has lost its jurisdiction to grant said relief. The jurisdiction of this Court does not depend on the convenience of litigants. IN VIEW WHEREOF, the Court grants the public respondents' Urgent Motion for Reconsideration and Supplemental Motion to Urgent Motion for Reconsideration and lifts the Temporary Restraining Order issued in its Resolution of January 4, 1999. The Court also orders respondent trial court judge (Hon. Thelma A. Ponferrada, Regional Trial Court, Quezon City, Branch 104) to set anew the date for execution of the convict/petitioner in accordance with applicable provisions of law and the Rules of Court, without further delay. FRANCISCO I. CHAVEZ, petitioner, vs. PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT (PCGG) and MAGTANGGOL GUNIGUNDO, (in his capacity as chairman of the PCGG), respondents, GLORIA A. JOPSON, CELNAN A. JOPSON, SCARLET A. JOPSON, and TERESA A. JOPSON, petitioners-in-intervention. Before the Court are (1) a "Motion for Leave to Intervene with Motion for Leave to File the Attached Partial Motion for Reconsideration . . ." and (2) "Partial Motion for Reconsideration," both filed on January 22, 1999, as well as movants' Memorandum of Authorities filed on March 16, 1999. Movants Ma. Imelda Marcos-Manotoc, Ferdinand R. Marcos II and Irene Marcos-Araneta allege that they are parties and signatories 1 to the General and Supplemental Agreements dated December 28, 1993, which this Court, in its Decision promulgated on December 9, 1998, declared "NULL AND VOID for being contrary to law and the Constitution." As such, they claim to "have a legal interest in the matter in litigation, or in the success of either of the parties or an interest against both as to warrant their intervention." They add that their exclusion from the instant case resulted in a denial of their constitutional rights to due process and to equal protection of the laws. They also raise the "principle of hierarchical administration of justice" to impugn the Court's cognizance of petitioner's direct action before it. The motions are not meritorious. No Denial of Due Process Movants claim that their exclusion from the proceeding regarding the Agreements to which they were parties and signatories was a denial of "their property right to contract without due process of law." We rule that the movants are merely incidental, not indispensable, parties to the instant case. Being contractors to the General and Supplemental Agreements involving their supposed properties, they claim that their interests are affected by the petition. However, as exhaustively discussed in the assailed Decision, the Agreements undeniably contain terms an condition that are clearly contrary to the Constitution and the laws and are not subject to compromise. Such terms and conditions cannot be granted by the PCGG to anyone, not just to movants. Being so, no argument of the contractors will make such illegal and unconstitutional stipulations pass the test of validity. The void agreement will not be rendered operative by the parties' alleges performance (partial or full) of their respective prestations. A contract that violates the Constitution and the law is null and void ab intio and vests no rights and creates no obligations. It produces no legal effect at all. 5 In legal terms, the movants have really no interest to protect or right to assert in this proceeding. Contrary to their allegations, no infraction upon their rights has been committed. The original petition of Francisco I. Chavez sought to enforce a constitutional right against the Presidential Commission on Good Government (PCGG) and to determine whether the latter has been acting within the bounds of its authority. In the process of adjudication, there is no need to call on each and every party whom said agency has contracted with. In any event, we are now ruling on the merits of the arguments raised by movants; hence, they can no longer complain of not having been heard in this proceeding. Petition Sought to Define Scope of Right to Information Movants insist that there was "nothing "secret" or "furtive" about the agreements as to warrant their compulsory disclosure by the Honorable Court . . .." They submit that when they filed their Motion for Approval of Compromise Agreements before the Sandiganbayan, they practically "opened to public scrutiny the agreements and everything else related thereto."

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In our Decision, we have already discussed this point and, hence, shall no longer belabor it. Suffice it to say that in our Decision, we ruled that the Chavez petition was not confined to the conclude terms contained in the Agreements, but likewise concerned other ongoing and future negotiations and agreement, perfected or not. It sought a precise interpretation of the scope of the twin constitutional provisions on "public transactions." It was therefore not endered moot and academic simply by the public disclosure of the subject Agreements. In sum, we hold that the motions are procedurally flawed and that, at this late stage, intervention can no longer be allowed. Moreover, movants are not indispensable parties to this suit which principally assails the constitutionality and legality of PCGG's exercise of its discretion. In any event, the Court has ruled on the merits of movants' claims. Hence, they can no longer complain, however remotely, of deprivation of due process or of equal protection of the law. RAMON A. GONZALES vs. HON. ANDRES R. NARVASA DECISION In this petition for prohibition and mandamus filed on December 9, 1999, petitioner Ramon A. Gonzales, in his capacity as a citizen and taxpayer, assails the constitutionality of the creation of the Preparatory Commission on Constitutional Reform (PCCR) and of the positions of presidential consultants, advisers and assistants. Petitioner asks this Court to enjoin the PCCR and the presidential consultants, advisers and assistants from acting as such, and to enjoin Executive Secretary Ronaldo B. Zamora from enforcing their advice and recommendations. In addition, petitioner seeks to enjoin the Commission on Audit from passing in audit expenditures for the PCCR and the presidential consultants, advisers and assistants. Finally, petitioner prays for an order compelling respondent Zamora to furnish petitioner with information on certain matters. On January 28, 2000, respondent Hon. Andres R. Narvasa, impleaded in his capacity as Chairman of the PCCR, filed his Comment to the Petition. The rest of the respondents, who are being represented in this case by the Solicitor General, filed their Comment with this Court on March 7, 2000. Petitioner then filed a Consolidated Reply on April 24, 2000, whereupon this case was considered submitted for decision. Right to Information Finally, petitioner asks us to issue a writ of mandamus ordering Executive Secretary Ronaldo B. Zamora to answer his letter (Annex D) dated October 4, 1999 requesting for the names of executive officials holding multiple positions in government, copies of their appointments, and a list of the recipients of luxury vehicles seized by the Bureau of Customs and turned over to Malacanang. The right to information is enshrined in Section 7 of the Bill of Rights which provides that 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. Under both the 1973 and 1987 Constitution, this is a self-executory provision which can be invoked by any citizen before the courts. This was our ruling in Legaspi v. Civil Service Commission, wherein the Court classified the right to information as a public right and when a [m]andamus proceeding involves the assertion of a public right, the requirement of personal interest is satisfied by the mere fact that the petitioner is a citizen, and therefore, part of the general public which possesses the right. However, Congress may provide for reasonable conditions upon the access to information. Such limitations were embodied in Republic Act No. 6713, otherwise knows as the Code of Conduct and Ethical Standards for Public Officials and Employees, which took effect on March 25, 1989. This law provides that, in the performance of their duties, all public officials and employees are obliged to respond to letters sent by the public within fifteen (15) working days from receipt thereof and to ensure the accessibility of all public documents for inspection by the public within reasonable working hours, subject to the reasonable claims of confidentiality. Elaborating on the significance of the right to information, the Court said in Baldoza v. Dimaano that [t]he incorporation of this right in the Constitution is a recognition of the fundamental role of free exchange of information in a democracy. There can be no realistic perception by the public of the nations problems, nor a meaningful democratic

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

decisionmaking if they are denied access to information of general interest. Information is needed to enable the members of society to cope with the exigencies of the times. The information to which the public is entitled to are those concerning matters of public concern, a term which embrace[s] a broad spectrum of subjects which the public may want to know, either because these directly affect their lives, or simply because such matters naturally arouse the interest of an ordinary citizen. In the final analysis, it is for the courts to determine in a case by case basis whether the matter at issue is of interest or importance, as it relates to or affects the public. Thus, we agree with petitioner that respondent Zamora, in his official capacity as Executive Secretary, has a constitutional and statutory duty to answer petitioners letter dealing with matters which are unquestionably of public concern that is, appointments made to public offices and the utilization of public property. With regard to petitioners request for copies of the appointment papers of certain officials, respondent Zamora is obliged to allow the inspection and copying of the same subject to the reasonable limitations required for the orderly conduct of official business. WHEREFORE, the petition is dismissed, with the exception that respondent Zamora is ordered to furnish petitioner with the information requested. PURIFICACION M. VDA. DE URBANO vs. GOVERNMENT SERVICE INSURANCE SYSTEM (GSIS) The facts, gathered mainly from the stipulation and admissions of the parties, are as follows: In 1971, petitioners mortgaged their 200-square meter property in Quezon City to the respondent GSIS to secure a housing loan of P47,000.00. As petitioners failed to pay their loan when it fell due, GSIS foreclosed the mortgage on October 28, 1983. With a bid of P154,896.00, GSIS emerged as the highest bidder in the public auction of the property. In a bid to redeem their property, petitioner Arnel Arrienda wrote on September 26, 1984 to the Acquired Assets Department (AAD) of the GSIS signifying the petitioners' intention to redeem their property. Two days after or on September 28, petitioner vda. de Urbano wrote the GSIS Board of Trustees (the "Board") to inform them of her desire to redeem the subject property and for advice on the procedure for redemption.3 GSIS responded on October 16, 1984 advising her to pay the total redemption price of P154,896.00 on or before the expiry date of redemption on November 18, 1984 in full and in cash, failing which the property would be offered for sale through public bidding. Unable to find financing to repurchase the subject property, petitioners again wrote to the Board through AAD Manager Secoquian on January 18, 1985 requesting for re-mortgage through repurchase of the subject property.4 On February 27, 1985, AAD Manager Secoquian wrote to petitioners that "the granting of real estate/housing loan to the GSIS members is not within the province and competence of this department, hence your request for a re-mortgage of said property cannot be acted upon."5 On June 19, 1985, petitioner vda. de Urbano wrote to the Board requesting approval to file a loan of P240,000.00 with the GSIS Real Estate Department to repurchase their foreclosed property. On August 21, 1985, months after the expiration of the redemption period on November 18, 1984, GSIS consolidated its title over the property, leading to the cancellation of TCT No. 167532 covering the property and the issuance of TCT No. 33418 in favor of GSIS. On September 5, 1985, respondent Crispina dela Cruz commenced negotiations with respondent GSIS for her purchase of the petitioners' foreclosed property for P250,000.00 spot cash. Unable to raise the entire amount of the property but still persistent to reacquire it, petitioner Arnel Arrienda wrote to the Board on October 4, 1985, offering a downpayment of P50,000.00 to purchase their property, the balance of P124,572.62 to be paid within five years in equal monthly installments. He enclosed a cashier's check in the amount of P10,000.00 as earnest money. On October 30, 1985, AAD Manager Secoquian informed petitioners that the Board adopted Resolution No. 881 on October 10, 1985 declining their offer to purchase the subject property under their proposed terms and conditions. On November 11, 1985, petitioner Arnel Arrienda again wrote to the Board requesting reconsideration of Resolution No. 881 and abeyance of the public sale or negotiation of the subject property. Secoquian wrote petitioner Arnel Arrienda on December 26, 1985 informing him that the Board adopted Resolution No. 1022 dated December 12, 1985 denying his request for reconsideration of Resolution No. 881 and

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returning petitioners' cashier's check of P10,000.00. The Board also directed the "Operating Unit Concerned to inform Ms. Cristina Cruz (sic) that her offer to purchase the above-mentioned property shall only be entertained by the GSIS Board if accompanied by a Cashier's or Manager's check in the amount equivalent to 10% of her offer, forfeitable in favor of the System in case she fails to comply with the terms and conditions proposed by the System." With no let up on their efforts to repurchase their property, petitioner Aurelio Arrienda wrote to the Board on January 6, 1986 requesting a restructuring or a liberal arrangement to purchase back the subject property. This was denied by the Board in Resolution No. 36 dated January 16, 1986. Meantime, GSIS continued negotiating with private respondent dela Cruz. On January 28, 1986, Secoquian recommended to the Board the approval of the sale to dela Cruz. Not having lost their resolve and pinning their hopes on the new Board of Trustees under the new administration of then President Corazon Aquino, petitioner vda. de Urbano wrote on January 20, 1987 to Atty. Regalado Resurreccion, Head of the Operation Pabahay of the Government Investments and Loan Department of the GSIS, requesting reconsideration of GSIS' position with regard to the subject property.12 As indicated in a GSIS internal communication, Officer-in-Charge Rosales of the Residential Loans Department initially handled the-request, then endorsed it to Atty. Resurreccion on January 19, 1987 and enclosed in his endorsement petitioner vda. de Urbano's June 19, 1985 letter applying for a loan of P240,000.00 to repurchase the subject property. The matter was, in turn, endorsed by Atty. Resurreccion to AAD Manager Secoquian on January 20, 1987 as "the Operation Pabahay Task Force cannot undertake the processing of this kind of loan unless a certificate of award or sale is issued in favor of the applicant." Atty. Resurreccion likewise noted in his endorsement that the applicant for the loan was already 81 years old and no longer a member of the GSIS. AAD Manager Secoquian returned said application to the head of the Operation Pabahay on March 3, 1987, enumerating the Board resolutions relative to the subject property and stating that "pending action by the Board on the offer of CRISPINA VDA. DELA CRUZ to purchase the subject property for the amount of P250,000.00, the request of Mrs. URBANO cannot as yet be given due consideration." On August 11, 1987, GSIS approved under Resolution No. 342 the "sale of the subject property to respondent dela Cruz for a consideration of P267,000.00 CASH." The following day, respondent AAD & GRADE Acting Vice-President Zacarias C. Beltran, Jr. wrote to petitioners Zenaida/Aurelio Arrienda calling their attention to the absence of a formal lease contract over the subject property where petitioners continued to stay. He also demanded payment of rental arrears on the property for 45 months as of July 31, 1987 amounting to P58,500.0014 and invited petitioners Zenaida and Aurelio Arrienda to the GSIS Office to make arrangements for the payment of the rental arrears and to execute the corresponding lease contract. The letter did not mention the negotiation with private respondent dela Cruz. On September 1, 1987, GSIS wrote to private respondent dela Cruz that the Board, through Board Resolution No. 342, approved the sale of the subject property payable in full and in cash for P267,000.00, representing its current market value, within thirty days from notice of the resolution. On January 20, 1988, a Deed of Absolute Sale over the subject property was executed between GSIS and private respondent de la. Cruz. The following day, TCT No. 374292 covering the subject property was issued to dela Cruz. Meantime, having learned about the sale of the subject property to dela Cruz, petitioner Aurelio Arrienda wrote to the GSIS on September 27, 1987 protesting the said sale and requesting its reconsideration and recall. Respondent Beltran, then already the Vice President of the AAMG & GRADE Department of the GSIS, responded on October 27, 1987 informing him of Resolution No. 430, dated October 13, 1987, which reiterated the approval of the sale of the subject property to respondent dela Cruz as previously approved under Board Resolution No. 342. On November 4, 1987, petitioner Aurelio Arrienda again wrote to the GSIS protesting the sale of the property to respondent dela Cruz and requesting for a formal investigation of the circumstances leading to the sale. The GSIS' Department of Investigation manager wrote to petitioner Aurelio Arrienda on January 11, 1988 requesting petitioner Aurelio Arrienda to "come for conference" with Atty. Gatpatan of the said department regarding his complaint on the subject property. Issue: Was GSIS in bad faith in dealing with petitioners? Ruling: Finally, on the issue of whether or not GSIS was in bad faith in dealing with the petitioners, we rule in the negative. As earlier discussed, respondent GSIS' denial of petitioners' further

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

requests for repurchase of the subject property was based on a factual determination of petitioners' financial incapacity and the then GSIS charter, P.D. 1146. It is also worth noting that GSIS sold the subject property to respondent dela Cruz only after giving petitioners an almost one year opportunity to repurchase the property and only after ascertaining that the purchase price proposed by private respondent dela Cruz in payment of the subject property would benefit the GSIS. Nor can petitioners, on the strength of Valmonte v. Belmonte, Jr.,29 impute bad faith on the part of GSIS when the latter did not disclose to petitioners that it was negotiating with private respondent dela Cruz for the sale of the subject property as soon as it started the negotiations. The Court ruled in the Valmonte case that the constitutional right to information is limited to "matters of public concern," to "transactions involving public interest." The negotiation and subsequent sale of the subject property by the GSIS to private respondent dela Cruz was by no stretch of the imagination imbued with public interest as it was a purely private transaction. Petitioners cannot therefore demand that it be informed of such negotiation and sale more so since they no longer had any interest on the subject property upon failure to comply with GSIS' terms for repurchase and upon GSIS' denial of petitioners' offer to repurchase under their proposed terms and conditions. In the absence of proof of bad faith on the part of the respondents, we deny petitioners' prayer for moral damages and attorney's fees. WHEREFORE, the petition is DENIED and the impugned decision and resolution of the Court of Appeals are AFFIRMED. No costs. SO ORDERED. SENATE OF THE PHILIPPINES vs. EDUARDO R. ERMITA The present consolidated petitions for certiorari and prohibition proffer that the President has abused such power by issuing Executive Order No. 464 (E.O. 464) last September 28, 2005. They thus pray for its declaration as null and void for being unconstitutional. In G.R. No. 169659, petitioners party-list Bayan Muna, House of Representatives Members Satur Ocampo, Crispin Beltran, Rafael Mariano, Liza Maza, Joel Virador and Teodoro Casino, Courage, an organization of government employees, and Counsels for the Defense of Liberties (CODAL), a group of lawyers dedicated to the promotion of justice, democracy and peace, all claiming to have standing to file the suit because of the transcendental importance of the issues they posed, pray, in their petition that E.O. 464 be declared null and void for being unconstitutional; that respondent Executive Secretary Ermita, in his capacity as Executive Secretary and alter-ego of President Arroyo, be prohibited from imposing, and threatening to impose sanctions on officials who appear before Congress due to congressional summons. Additionally, petitioners claim that E.O. 464 infringes on their rights and impedes them from fulfilling their respective obligations. Thus, Bayan Muna alleges that E.O. 464 infringes on its right as a political party entitled to participate in governance; Satur Ocampo, et al. allege that E.O. 464 infringes on their rights and duties as members of Congress to conduct investigation in aid of legislation and conduct oversight functions in the implementation of laws; Courage alleges that the tenure of its members in public office is predicated on, and threatened by, their submission to the requirements of E.O. 464 should they be summoned by Congress; and CODAL alleges that its members have a sworn duty to uphold the rule of law, and their rights to information and to transparent governance are threatened by the imposition of E.O. 464. In G.R. No. 169667, petitioner Alternative Law Groups, Inc. (ALG), alleging that as a coalition of 17 legal resource non-governmental organizations engaged in developmental lawyering and work with the poor and marginalized sectors in different parts of the country, and as an organization of citizens of the Philippines and a part of the general public, it has legal standing to institute the petition to enforce its constitutional right to information on matters of public concern, a right which was denied to the public by E.O. 464, prays, that said order be declared null and void for being unconstitutional and that respondent Executive Secretary Ermita be ordered to cease from implementing it. On October 11, 2005, Petitioner Senate of the Philippines, alleging that it has a vital interest in the resolution of the issue of the validity of E.O. 464 for it stands to suffer imminent and material injury, as it has already sustained the same with its continued enforcement since it directly interferes with and impedes the valid exercise of the Senates powers and functions and conceals information of great public interest and concern, filed its petition for certiorari and prohibition, docketed as G.R. No. 169777 and prays that E.O. 464 be declared unconstitutional. In the oral arguments on the petitions conducted on February 21, 2006, the following substantive issues were ventilated: (1) whether respondents committed grave abuse of discretion in implementing E.O. 464 prior to its publication in the Official Gazette or in a newspaper of general circulation; and (2) whether E.O. 464 violates the following provisions of the Constitution: Art. II, Sec. 28, Art. III, Sec.

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4, Art. III, Sec. 7, Art. IV. Sec. 1, Art. VI, Sec. 21, Art. VI, Sec. 22, Art. XI, Sec. 1, and Art. XIII, Sec. 16. The procedural issue of whether there is an actual case or controversy that calls for judicial review was not taken up; instead, the parties were instructed to discuss it in their respective memoranda. Petitioners submit that E.O. 464 violates the following constitutional provisions: Art. III, Sec. 7 Art. III, Sec. 4 ISSUE: Whether E.O. 464 violates the right of the people to information on matters of public concern; and RULING: Right to Information E.O 464 is concerned only with the demands of Congress for the appearance of executive officials in the hearings conducted by it, and not with the demands of citizens for information pursuant to their right to information on matters of public concern. Petitioners are not amiss in claiming, however, that what is involved in the present controversy is not merely the legislative power of inquiry, but the right of the people to information. There are, it bears noting, clear distinctions between the right of Congress to information which underlies the power of inquiry and the right of the people to information on matters of public concern. For one, the demand of a citizen for the production of documents pursuant to his right to information does not have the same obligatory force as a subpoena duces tecum issued by Congress. Neither does the right to information grant a citizen the power to exact testimony from government officials. These powers belong only to Congress and not to an individual citizen. Thus, while Congress is composed of representatives elected by the people, it does not follow, except in a highly qualified sense, that in every exercise of its power of inquiry, the people are exercising their right to information. To the extent that investigations in aid of legislation are generally conducted in public, however, any executive issuance tending to unduly limit disclosures of information in such investigations necessarily deprives the people of information which, being presumed to be in aid of legislation, is presumed to be a matter of public concern. The citizens are thereby denied access to information which they can use in formulating their own opinions on the matter before Congress opinions which they can then communicate to their representatives and other government officials through the various legal means allowed by their freedom of expression. Thus holds Valmonte v. Belmonte: It is in the interest of the State that the channels for free political discussion be maintained to the end that the government may perceive and be responsive to the peoples will. Yet, this open dialogue can be effective only to the extent that the citizenry is informed and thus able to formulate its will intelligently. Only when the participants in the discussion are aware of the issues and have access to information relating thereto can such bear fruit. The impairment of the right of the people to information as a consequence of E.O. 464 is, therefore, in the sense explained above, just as direct as its violation of the legislatures power of inquiry. Conclusion Congress undoubtedly has a right to information from the executive branch whenever it is sought in aid of legislation. If the executive branch withholds such information on the ground that it is privileged, it must so assert it and state the reason therefor and why it must be respected. The infirm provisions of E.O. 464, however, allow the executive branch to evade congressional requests for information without need of clearly asserting a right to do so and/or proffering its reasons therefor. By the mere expedient of invoking said provisions, the power of Congress to conduct inquiries in aid of legislation is frustrated. That is impermissible. For [w]hat republican theory did accomplishwas to reverse the old presumption in favor of secrecy, based on the divine right of kings and nobles, and replace it with a presumption in favor of publicity, based on the doctrine of popular sovereignty. Resort to any means then by which officials of the executive branch could refuse to divulge information cannot be presumed valid. Otherwise, we shall not have merely nullified the power of our legislature to inquire into the operations of government, but we shall have given up something of much greater value our right as a people to take part in government.

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

(Q Gumia) ALFREDO HILADO vs. JUDGE AMOR A. REYES G.R. No. 163155; July 21, 2006 Facts: Julita Campos Benedicto (pivate respondent), the surviving spouse of the deceased Roberto S. Benedicto, filed a petition for issuance of letters of administration before the Regional Trial Court (RTC) of Manila. The case was raffled to Branch 21 presided by Judge Amor A. Reyes (public respondent). Julita Benedicto was appointed Administratrix of the estate of Benedicto (the estate), and letters of administration were thereafter issued in her favor. Herein petitioners, Alfredo Hilado, Manuel Lacson, Jose M. Tuvilla, Joaquin Limjap, Lopez Sugar Corporation and First Farmers Holding Corporation had, during the lifetime of Benedicto, filed before the Bacolod City RTC two complaints for damages or collection of sums of money, docketed as Civil Case No. 95-9137 and Civil Case No. 111718, against Roberto Benedicto et al. From January 2002 until November 2003, the Branch Clerk of Court of Branch 21 of the Manila RTC allowed petitioners through counsel to regularly and periodically examine the records of the case and to secure certified true copies thereof. By December 2003, however, an associate of petitioners' counsel, was denied access to the last folder-record of the case which, according to the court's clerical staff, could not be located and was probably inside the chambers of public respondent for safekeeping. Petitioners' counsel thus requested public respondent to allow them to personally check the records of the case. Acting on the letter, the Officer-In- Charge/Legal Researcher of Branch 21 advised petitioners' counsel in writing that "per instruction of the Hon. Presiding Judge, only parties or those with authority from the parties are allowed to inquire or verify the status of the case pending in this Court," and that they may be "allowed to go over the records of the above-entitled case upon presentation of written authority from the [administratrix]." On February 2, 2004, petitioners' counsel was served with a notice of hearing of the case on February 13, 2004. Petitioners' counsel thus attended such scheduled hearing during which he filed a Motion for Inhibition of public respondent on the ground of gross ignorance, dereliction of duty, and manifest partiality towards the administratrix. Public respondent, noting that an error was committed in the service to petitioners of the notice of hearing, ignored the motion of petitioners' counsel. Intending to compare the list of properties in the estate's inventory, petitioners' counsel sent the Branch Clerk of Court of Branch 21 of the Manila RTC a letter requesting to be furnished with certified true copies of the "updated inventory." By still another letter, petitioners' counsel requested to be furnished with certified true copies of the order issued by the court during the hearing of February 13, 2004, as well as the transcript of stenographic notes taken thereon. By Order of March 2, 2004, public respondent indicated why petitioners had no standing to file the Motion for Inhibition as well as to request for certified true copies of the above-indicated documents. Petitioners thus filed the present petition for mandamus and prohibition to compel public respondent to allow them to access, examine, and obtain copies of any and all documents forming part of the records of the case and disqualify public respondent from further presiding thereover. They contend that the records of the case are public records to which the public has the right to access, inspect and obtain official copies thereof, recognition of which right is enjoined under Section 7, Article III of the Constitution and Section 2, Rule 135 and Section 11, Rule 136 of the Rules of Court. Issue: Whether a writ of mandamus may issue to compel public respondent to allow petitioners to examine and obtain copies of any or all documents forming part of the records of the case Held: Insofar as the right to information relates to judicial records, an understanding of the term "judicial record" or "court record" is in order. The term "judicial record" or "court record" does not only refer to the orders, judgment or verdict of the courts. It comprises the official collection of all papers, exhibits and pleadings filed by the parties, all processes issued and returns made thereon, appearances, and wordfor-word testimony which took place during the trial and which are in

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the possession, custody, or control of the judiciary or of the courts for purposes of rendering court decisions. It has also been described to include any paper, letter, map, book, other document, tape, photograph, film, audio or video recording, court reporter's notes, transcript, data compilation, or other materials, whether in physical or electronic form, made or received pursuant to law or in connection with the transaction of any official business by the court, and includes all evidence it has received in a case. In determining whether a particular information is of public concern, there is no right test. In the final analysis, it is for the courts to determine on a case to case basis whether the matter at issue is of interest or importance as it relates to or affect the public. It bears emphasis that the interest of the public hinges on its right to transparency in the administration of justice, to the end that it will serve to enhance the basic fairness of the judicial proceedings, safeguard the integrity of the fact-finding process, and foster an informed public discussion of governmental affairs. The right of the public to be informed of the proceedings in court is not founded in the desire or necessity of people to know about the doing of others, but in the necessity of knowing whether its servant, the judge, is properly performing his duty. Decisions and opinions of a court are of course matters of public concern or interest for these are the authorized expositions and interpretations of the laws, binding upon all citizens, of which every citizen is charged with knowledge. Justice thus requires that all should have free access to the opinions of judges and justices, and it would be against sound public policy to prevent, suppress or keep the earliest knowledge of these from the public. Unlike court orders and decisions, however, pleadings and other documents filed by parties to a case need not be matters of public concern or interest. For they are filed for the purpose of establishing the basis upon which the court may issue an order or a judgment affecting their rights and interests. In thus determining which part or all of the records of a case may be accessed to, the purpose for which the parties filed them is to be considered. In intestate proceedings, the heirs file pleadings and documents for the purpose of establishing their right to a share of the estate. As for the creditors, their purpose is to establish their claim to the estate and be paid therefor before the disposition of the estate. Information regarding the financial standing of a person at the time of his death and the manner by which his private estate may ultimately be settled is not a matter of general, public concern or one in which a citizen or the public has an interest by which its legal rights or liabilities maybe affected. Granting unrestricted public access and publicity to personal financial information may constitute an unwarranted invasion of privacy to which an individual may have an interest in limiting its disclosure or dissemination. If the information sought then is not a matter of public concern or interest, denial of access thereto does not violate a citizen's constitutional right to information. Once a particular information has been determined to be of public concern, the accessory right of access to official records, including judicial records, are open to the public. The accessory right to access public records may, however, be restricted on a showing of good cause. How "good cause" can be determined, the Supreme Judicial Court of Massachusetts in Republican Company v. Appeals Court teaches: The public's right of access to judicial records, including transcripts, evidence, memoranda, and court orders, maybe restricted, but only on a showing of "good cause." "To determine whether good cause is shown, a judge must balance the rights of the parties based on the particular facts of each case." In so doing, the judge "must take into account all relevant factors, 'including, but not limited to, the nature of the parties and the controversy, the type of information and the privacy interests involved, the extent of community interest, and the reason for the request.'" In fine, access to court records may be permitted at the discretion and subject to the supervisory and protective powers of the court, after considering the actual use or purpose for which the request for access is based and the obvious prejudice to any of the parties. Petitioners' stated main purpose for accessing the records to monitor prompt compliance with the Rules governing the preservation and proper disposition of the assets of the estate, e.g., the completion and appraisal of the Inventory and the submission by

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

the Administratrix of an annual accounting appears legitimate, for, as the plaintiffs in the complaints for sum of money against Roberto Benedicto et al., they have an interest over the outcome of the settlement of his estate. They are in fact "interested persons" under Rule 135, Sec. 2 of the Rules of Court reading: Rule 135, SEC. 2. Publicity of proceedings and records. x x x x The records of every court of justice shall be public records and shall be available for the inspection of any interested person, at all proper business hours, under the supervision of the clerk having custody of such records, unless the court shall, in any special case, have forbidden their publicity, in the interest of morality or decency. (Underscoring supplied), As long then as any party, counsel or person has a legitimate reason to have a copy of court records and pays court fees, a court may not deny access to such records. Of course, precautionary measures to prevent tampering or alteration must be observed: In fine, this Court finds the petition for mandamus meritorious, petitioners being "interested persons" who have a legitimate reason or purpose for accessing the records of the case. BANTAY REPUBLIC ACT OR BA-RA 7941 vs. COMMISSION ON ELECTIONS G.R. No. 177271; May 4, 2007 Facts: On January 12, 2007, the Comelec issued Resolution No. 7804 prescribing rules and regulations to govern the filing of manifestation of intent to participate and submission of names of nominees under the party-list system of representation in connection with the May 14, 2007 elections. Pursuant thereto, a number of organized groups filed the necessary manifestations. Among these are 14 party-list groups, namely: (1) BABAE KA; (2) ANG KASANGGA; (3) AKBAY PINOY; (4) AKSA; (5) KAKUSA; (6) AHON PINOY; (7) OFW PARTY; (8) BIYAHENG PINOY; (9) ANAD; (10) AANGAT ANG KABUHAYAN; (11) AGBIAG; (12) BANAT; (13) BANTAY LIPAD; (14) AGING PINOY. Subsequent events saw BA-RA 7941 and UP-LR filing with the Comelec an Urgent Petition to Disqualify, thereunder seeking to disqualify the nominees of certain party-list organizations. Both petitioners appear not to have the names of the nominees sought to be disqualified since they still asked for a copy of the list of nominees. Meanwhile, reacting to the emerging public perception that the individuals behind the aforementioned 14 party-list groups do not, as they should, actually represent the poor and marginalized sectors, petitioner Rosales, in G.R. No. 177314, addressed a letter dated March 29, 2007 to Director Alioden Dalaig of the Comelecs Law Department requesting a list of that groups nominees. Neither the Comelec Proper nor its Law Department officially responded to petitioner Rosales requests. The April 13, 2007 issue of the Manila Bulletin, however, carried the front-page banner headline "COMELEC WONT BARE PARTY-LIST NOMINEES", with the following sub-heading: "Abalos says party-list polls not personality oriented." On April 16, 2007, Atty. Emilio Capulong, Jr. and ex-Senator Jovito R. Salonga, in their own behalves and as counsels of petitioner Rosales, forwarded a letter to the Comelec formally requesting action and definitive decision on Rosales earlier plea for information regarding the names of several party-list nominees. Invoking their constitutionally-guaranteed right to information, Messrs. Capulong and Salonga at the same time drew attention to the banner headline adverted to earlier, with a request for the Comelec, "collectively or individually, to issue a formal clarification, either confirming or denying the banner headline and the alleged statement of Chairman Benjamin Abalos, Sr. xxx" Evidently unbeknownst then to Ms. Rosales, et al., was the issuance of Comelec en banc Resolution 07-0724 under date April 3, 2007 virtually declaring the nominees names confidential and in net effect denying petitioner Rosales basic disclosure request. Issues: 1. Whether respondent Comelec, by refusing to reveal the names of the nominees of the various party-list groups, has violated the right to information and free access to documents as guaranteed by the Constitution; and 2. Whether respondent Comelec is mandated by the Constitution to disclose to the public the names of said nominees. Held: While the Comelec did not explicitly say so, it based its refusal to disclose the names of the nominees of subject party-list groups on Section 7 of R.A. 7941. This provision, while commanding the publication and the posting in polling places of a certified list of party-

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list system participating groups, nonetheless tells the Comelec not to show or include the names of the party-list nominees in said certified list. Thus: SEC. 7. Certified List of Registered Parties.- The COMELEC shall, not later than sixty (60) days before election, prepare a certified list of national, regional, or sectoral parties, organizations or coalitions which have applied or who have manifested their desire to participate under the party-list system and distribute copies thereof to all precincts for posting in the polling places on election day. The names of the party-list nominees shall not be shown on the certified list. (Emphasis added.) Insofar as the disclosure issue is concerned, the petitions are impressed with merit. Assayed against the non-disclosure stance of the Comelec and the given rationale therefor is the right to information enshrined in the self-executory Section 7, Article III of the Constitution, viz: Sec.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 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. Complementing and going hand in hand with the right to information is another constitutional provision enunciating the policy of full disclosure and transparency in Government. We refer to Section 28, Article II of the Constitution reading: Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest. The right to information is a public right where the real parties in interest are the public, or the citizens to be precise. And for every right of the people recognized as fundamental lies a corresponding duty on the part of those who govern to respect and protect that right. This is the essence of the Bill of Rights in a constitutional regime. Without a governments acceptance of the limitations upon it by the Constitution in order to uphold individual liberties, without an acknowledgment on its part of those duties exacted by the rights pertaining to the citizens, the Bill of Rights becomes a sophistry. By weight of jurisprudence, any citizen can challenge any attempt to obstruct the exercise of his right to information and may seek its enforcement by mandamus. And since every citizen by the simple fact of his citizenship possesses the right to be informed, objections on ground of locus standi are ordinarily unavailing. Like all constitutional guarantees, however, the right to information and its companion right of access to official records are not absolute. As articulated in Legaspi, supra, the peoples right to know is limited to "matters of public concern" and is further subject to such limitation as may be provided by law. Similarly, the policy of full disclosure is confined to transactions involving "public interest" and is subject to reasonable conditions prescribed by law. Too, there is also the need of preserving a measure of confidentiality on some matters, such as military, trade, banking and diplomatic secrets or those affecting national security. The terms "public concerns" and "public interest" have eluded precise definition. But both terms embrace, to borrow from Legaspi, a broad spectrum of subjects which the public may want to know, either because these directly affect their lives, or simply because such matters naturally whet the interest of an ordinary citizen. At the end of the day, it is for the courts to determine, on a case to case basis, whether or not at issue is of interest or importance to the public. As may be noted, no national security or like concerns is involved in the disclosure of the names of the nominees of the party-list groups in question. Doubtless, the Comelec committed grave abuse of discretion in refusing the legitimate demands of the petitioners for a list of the nominees of the party-list groups subject of their respective petitions. Mandamus, therefore, lies. The last sentence of Section 7 of R.A. 7941 reading: "[T]he names of the party-list nominees shall not be shown on the certified list" is certainly not a justifying card for the Comelec to deny the requested disclosure. To us, the prohibition imposed on the Comelec under said Section 7 is limited in scope and duration, meaning, that it extends only to the certified list which the same provision requires to be posted in the polling places on election day. To stretch the coverage of the prohibition to the absolute is to read into the law something that is not intended. As it were, there is absolutely nothing in R.A. No. 7941 that prohibits the Comelec from disclosing or even publishing through mediums other than the "Certified List" the names of the party-list nominees. The Comelec obviously misread the

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limited non-disclosure aspect of the provision as an absolute bar to public disclosure before the May 2007 elections. The interpretation thus given by the Comelec virtually tacks an unconstitutional dimension on the last sentence of Section 7 of R.A. No. 7941. In all, we agree with the petitioners that respondent Comelec has a constitutional duty to disclose and release the names of the nominees of the party-list groups named in the herein petitions.

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It only remains to be added that the futility that marked the persistence of petitioner to continue her studies in the Loyola School of Theology is the result solely of a legal appraisal of the situation before us. The decision is not to be construed as in any way reflecting on the scholastic standing of petitioner. There was on the part of respondent due acknowledgment of her intelligence. Nonetheless, for reasons explained in the letter of Father Lambino, it was deemed best, considering the interest of the school as well as of the other students and her own welfare, that she continue her graduate work elsewhere. There was nothing arbitrary in such appraisal of the circumstances deemed relevant. It could be that on more mature reflection, even petitioner would realize that her transfer to some other institution would redound to the benefit of all concerned. At any rate, as indicated earlier, only the legal aspect of the controversy was touched upon in this decision. THE UNIVERSITY OF THE PHILIPPINES vs. HON. JUDGE RUBEN AYSON G.R. No. 88386 August 17, 1989 Facts: Sometime in 1972, the UP Board of Regents approved the establishment of UPCBHS as an integral part of the graduate program in education to serve, among others, as a laboratory and demonstration school for prospective teachers. Provided, however, that UPCBHS must be self-supporting and should not entail any subsidy from the budget of the UP. In 1978, the Board of Regents provided for the establishment of a Division of Education in UP College Baguio (UPCB) which shall be composed of a Department of Professional Education and a High School Department. However, the Department of Professional Education was never organized, although the High School Department has been in continuous operation. In 1981, the Committee to Review Academic Program recommended the abolition of the UPCBHS. In 1985, the Program Review Committee likewise asked the UPCB to look into the viability of its secondary education program on account of limited financial resources plus the fact that UPCBHS failed to serve as a laboratory school for teacher training program as UPCB does not offer programs in Education. On January 30,1989, the UP Board of Regents approved the proposed phase-out of UPCBHS. Subsequently, petitioner Dean Patricio Lazaro issued a memorandum directing the UPCBHS Principal not to accept new incoming high school freshmen for the school year 1989- 1990. On May 25,1989, respondent UP College Baguio High School Foundation Inc. filed a petition with the Regional Trial Court of Baguio, presided by respondent Judge against herein petitioners, for Injunction with preliminary preventive and mandatory injunction with prayer for the issuance of a temporary restraining order, alleging among others, that the decision of the UP Board of Regents to phase out the UPCBHS is without legal basis and unconstitutional. Thereafter, respondent Judge issued the assailed Orders restraining petitioners from implementing the Board's decision to phase out UPCBHS and the memorandum of Dean Patricio Lazaro. Petitioners contend that the decision of the UP Board of Regents to phase out the UPCBHS is an exercise of academic freedom guaranteed by the Constitution (Art. XIV, Sec. 5, par. 2). Respondents, on the other hand, take issue not with the exercise of academic freedom but rather on the right to quality education (Art. XIV, Sec. 1) and free public secondary education (Art. XIV, Sec. 2, par. 2) mandated by the Constitution and Rep. Act No. 6655, otherwise known as "Free Public Secondary Education Act of 1988." Respondents contend that the abolition of the UPCBHS would be violative of said rights. Issue: Is secondary public education demandable in an institution of higher learning such as the University of the Philippines? Held: No. It is beyond cavil that the UP, as an institution of higher learning, enjoys academic freedomthe institutional kind. Specifically, the University of the Philippines was created under its Charter (Act No. 1870 [1908], as amended) to provide advanced tertiary education and not secondary education. Section 2 of said Act states that "the purpose of said University shall be to provide advanced instruction in literature, philosophy, the sciences, and arts, and to give professional and technical training."

E. ACADEMIC FREEDOM
EPICHARIS T. GARCIA vs.THE FACULTY ADMISSION COMMITTEE G.R. No. L-40779 November 28, 1975 Facts: Respondent admitted Petitioner for studies leading to an M.A. in Theology. When Petitioner wanted to enroll for the same course for the first semester, Respondent told her about the letter he had written her, informing her of the faculty's decision to bar her from re-admission in their school; The reasons stated in said letter do not constitute valid legal ground for expulsion, for they neither present any violation of any of the school's regulation, nor are they indicative of gross misconduct; She prayed for a writ of mandamus for the purpose of allowing her to enroll in the current semester. Her petition included the letter of respondent Father Lambino which started on a happy note that she was given the grade of B+ and B in two theology subjects, but ended in a manner far from satisfactory for her, as shown by this portion thereof: "Now, you will have to forgive me for going into a matter which is not too pleasant. The faculty had a meeting after the summer session and several members are strongly opposed to having you back with us at Loyola School of Theology. In the spirit of honesty may I report this to you as their reason: They felt that your frequent questions and difficulties were not always pertinent and had the effect of slowing down the progress of the class; they felt you could have tried to give the presentation a chance and exerted more effort to understand the point made before immediately thinking of difficulties and problems. The way things are, I would say that the advisability of your completing a program (with all the course work and thesis writing) with us is very questionable. That you have the requisite intellectual ability is not to be doubted. But it would seem to be in your best interests to work with a faculty that is more compatible with your orientation. I regret to have to make this report, but I am only thinking of your welfare." Issue: Whether or not a petition for mandamus is proper? Held: Petitioner cannot compel by mandamus, the respondent to admit her into further studies in the Loyola School of Theology. For respondent has no clear duty to so admit the petitioner. The Loyola School of Theology is a seminary for the priesthood. Petitioner is admittedly and obviously not studying for the priesthood, she being a lay person and a woman. And even assuming ex gratia argumenti that she is qualified to study for the priesthood, there is still no duty on the part of respondent to admit her to said studies, since the school has clearly the discretion to turn down even qualified applicants due to limitations of space, facilities, professors and optimum classroom size and component considerations." There is, as previously noted, the recognition in the Constitution of institutions of higher learning enjoying academic freedom. It is more often identified with the right of a faculty member to pursue his studies in his particular specialty and thereafter to make known or publish the result of his endeavors without fear that retribution would be visited on him in the event that his conclusions are found distasteful or objectionable to the powers that be, whether in the political, economic, or academic establishments. That is only one aspect though. Such a view does not comprehend fully the scope of academic freedom recognized by the Constitution. For it is to be noted that the reference is to the "institutions of higher learning" as the recipients of this boon. It would follow then that the school or college itself is possessed of such a right. It decides for itself its aims and objectives and how best to attain them. It is free from outside coercion or interference save possibly when the overriding public welfare calls for some restraint. It has a wide sphere of autonomy certainly extending to the choice of students. It is the business of a university to provide that atmosphere which is most conducive to speculation, experiment and creation. It is an atmosphere in which there prevail "the four essential freedoms" of a university to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study." Thus is reinforced the conclusion reached by us that mandamus does not lie in this case.

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

It is apparent that secondary education is not the mandated function of the University of the Philippines; consequently, the latter can validly phase out and/or abolish the UPCBHS especially so when the requirements for its continuance have not been met, Rep. Act No. 6655 to the contrary notwithstanding. The findings of facts by the Board of Regents which led to its decision to phase out the UPCBHS must be accorded respect, if not finality. Acts of an administrative agency within their areas of competence must be casually overturned by the courts. It must be emphasized that UPCBHS was established as a component of the tertiary level, i.e., the teacher/training program. As it turned out however, the latter program was not viable in UPCB thereby necessitating the phasing out of UPCBHS, the rationale being its reasons for existence no longer exists. On this score, UPCBHS differs from the other UP high schools in Iloilo, Diliman, Cebu and Los Ba;os. The latter schools serve as laboratory schools for the College of Education in said areas, whereas, in Baguio, there is no College of Education. A careful perusal of Rep. Act No. 6655 could not lend respondents a helping hand either. Said Act implements the policy of the State to provide free public secondary education (Sec. 4) and vests the formulation of a secondary public education curriculum (Sec. 5), the nationalization of public secondary schools (Sec. 7) and the implementation of the rules and regulations thereof (Sec. 9) upon the Secretary of the Department of Education, Culture and Sports (DECS). Rep. Act No. 6655 complements Sec. 2 (2), Article XIV of the Constitution which mandates that the State shall establish and maintain a system of free public secondary education. However, this mandate is not directed to institutions of higher learning like UP but to the government through the Department of Education, Culture and Sports (DECS). As an institution of higher learning enjoying academic freedom, the UP cannot be compelled to provide for secondary education. UNIVERSITY OF THE PHILIPPINES vs. COURT OF APPEALS G.R. No. 97827 February 9, 1993 Waving aloft its banner of institutional academic freedom, the petitioner University of the Philippines questions, in this petition for review on certiorari the Order of the lower court denying the motion to dismiss the complaint for damages filed against two of its professors for alleged derogatory statement uttered concerning the Tasadays, the cave-dwelling inhabitants of the rain forest of Mindanao. Facts: In 1986, the "International Conference on the Tasaday Controversy and Other Urgent Anthropological Issues" was held at the Philippine Social Science Center in Diliman, Quezon City. Jerome Bailen, Professor of the University of the Philippines (UP) Department of Anthropology was the designated conference chairman. He presented therein the "Tasaday Folio," a collection of studies on Tasadays done by leading anthropologists who disputed the authenticity of the Tasaday find and suggested that the "discovery" in 1971 by a team led by former Presidential Assistant on National Minorities (PANAMIN) Minister Manuel Elizalde, Jr. was nothing more than a fabrication made possible by inducing Manobo and T'boli tribesmen to pose as primitive, G-stringed, leaf-clad cave dwellers. In the same conference, UP history professor, Zeus Salazar, traced in a publication the actual genealogy of the Tasadays to T'boli and Manobo ethnic groups. He likewise presented ABC's "20/20" videotaped television documentary showing interviews with natives claiming to have been asked by Elizalde to pose as Tasadays. Almost a year later or in July 1988, UP allegedly sent Salazar and Bailen to Zagreb, Yugoslavia to attend the 12th International Congress of Anthropological and Ethnological Sciences. There, Salazar and Bailen reiterated their claim that the Tasaday find was a hoax. Their allegations were widely publicized in several dailies. With these acts and utterances of Bailen and Salazar as well as newspaper reports and commentaries on the matter as bases, on October 27, 1988, Elizalde and Tasaday representatives Balayem, Mahayag, Dul and Lobo, filed a complaint for damages and declaratory relief against Salazar and Bailen before the Quezon City Regional Trial Court. On November 24, 1988, UP filed a motion to intervene with supporting memorandum asserting that, having authorized the activities of Bailen and Salazar, it had a duty to protect them as faculty members for acts and utterances made in the exercise of academic freedom. Moreover, it claimed that it was itself entitled to the right of institutional academic freedom. Issue: Whether or not the contention of UP is correct. Held:

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As correctly observed by the lower court, the complaint does not even show that petitioner authorized Bailen and Salazar to conduct a study on the Tasaday. Neither does it even appear that the trip to Zagreb, Yugoslavia of Bailen and Salazar was sanctioned or sponsored by the petitioner. Hence, by filing the motion to dismis the complaint against Salazar and Bailen or by alleging defenses in its answer which amounted to invoking lack of cause of action as a ground for dismissal, the petitioner confined itself to the allegations of the complaint. On the other hand, a cause of action against Bailen and Salazar can be made out from the complaint: their acts and utterances allegedly besmirched the reputation of the plaintiffs as they were shown therein to have staged a fraud. The fact that the "hoax" was played up in the media allegedly aggravated the situation. This is not to say, however, that UP's intervention was improper. In fact, it eventually proned to be necessary. Coming to the defense of its faculty members, it had to prove that the alleged damaging acts and utterances of Bailen and Salazar were circumscribed by the constitutionally-protected principle of academic freedom. However, it should have championed the cause of Bailen and Salazar in the course of the trial of the case. It erred in trying to abort the proceedings at its inception through the device of filing the motion to dismiss. This procedural lapse, notwithstanding, no irremediable injury has been inflicted on the petitioner as, during the trial, it may still invoke and prove the special defense of institutional academic freedom as defined in Tangonan v. Pao and in Garcia v. The Faculty Admission Committee, Loyola School of Theology. Mayhap, in the process, it may invoke and dwell upon the individual academic freedom of its faculty members. Since Bailen and Salazar had defaulted and thereby forfeited their right to notice of subsequent proceedings and to participate in the trial, petitioner's answer in intervention shall be the gauge in determining whether issues have been joined. The fact that the defenses raised in said answer were denied grounds for a motion to dismiss does not affect their value as affirmative defenses in an answer to a complaint within the purview of Section 5(b), Rule 6 of the Rules of Court. The Order of May 15, 1989 merely "denied" petitioner's affirmative defenses as grounds for a motion to dismiss. Moreover, under Section 4, Rule 18 of the Rules of Court, the failure of some defendants to answer cannot prevent the court from trying the case noon the answer filed and thereafter rendering judgment on the basis of the evidence presented. (pasenxa na sa digest nito, more on procedures man ang ginadiscuss) ENELYN E. PEA, et al. vs. NATIONAL LABOR RELATIONS COMMISSION G.R. No. 100629 July 5, 1996 Facts: Petitioners were teachers at the Naga Parochial School in Naga City. They had been employed there for more than three years and, as a consequence, had enjoyed permanent status. On May 4, 1988, however, they were given notice of the termination of their employment on the ground that they had failed to obtain a minimum efficiency rating of 85% in the two previous school years as required in the teacher's manual of respondent school. Petitioners filed a complaint for illegal dismissal which the Labor Arbiter, after hearing, found to be well founded. Among other things, the Labor Arbiter held that the criteria used to determine the efficiency rating of petitioners were unclear and arbitrary. On appeal, the NLRC reversed on the ground that the petitioners had been sufficiently warned after failing to obtain the required efficiency rating in the two preceding school years (1985-1986 and 1986-1987) and given time to improve their skills and performance. In the present petition, petitioners invoke the Manual of Regulations for Private Schools of the Department of Education (1970), pursuant to which full-time teachers, who have rendered three consecutive years of satisfactory service, are considered permanent and entitled to security of tenure. They contend that their employment could be terminated only on the ground of gross incompetence or inefficiency and that, although their performance ratings were below 85%, they should be considered above satisfactory. Petitioners claim that the NLRC gravely abused its discretion in approving the termination of their employment. They maintain that the criteria used by the respondent school for rating them were unreasonable. Issue: Whether or not the contention of petitioners is correct. Held:

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

Not correct. Petitioners argue that to require a minimum efficiency rating of 85% is unreasonable and unfair because, by any other standard, the average grade is 75%. This contention is untenable. It is the prerogative of the school to set high standards of efficiency for its teachers since quality education is a mandate of the Constitutional. As long as the standards fixed are reasonable and not arbitrary, courts are not at liberty to set them aside. Schools cannot be required to adopt standards which barely satisfy criteria set for government recognition. What petitioners complain against is that the criteria by which their performances were evaluated varied from year to year as shown by the fact that prior to the school year 1985-1986, a rating of 85% was considered "good" and not merely "satisfactory." Petitioners have not shown, however, how such description could affect the numerical ratings given to them, which appear to be the real basis for the evaluation of their performance. Indeed, when the evaluation system was first included in the teacher's manual in 1984 for the purpose of upgrading the competence of faculty members, petitioners did not object. The criteria for evaluation of teacher performance were presented and explained to the teachers and the staff prior to their implementation. Neither did petitioners object to the ratings given to them. They did so only after they had been given notice of termination. We are satisfied that petitioners' employment was terminated for a just and legal cause. DE LA SALLE UNIVERSITY, INC. vs. COURT OF APPEALS G.R. No. 127980 December 19, 2007 Facts: PRIVATE respondents Alvin Aguilar, James Paul Bungubung, Richard Reverente and Roberto Valdes, Jr. are members of Tau Gamma Phi Fraternity who were expelled by the De La Salle University (DLSU) and College of Saint Benilde (CSB) Joint Discipline Board because of their involvement in an offensive action causing injuries to petitioner James Yap and three other student members of Domino Lux Fraternity. This is the backdrop of the controversy before Us pitting private respondents' right to education vis-a-vis the University's right to academic freedom. On June 5, 1995, private respondent Aguilar filed with the RTC, Manila, against petitioners a petition for certiorari and injunction under Rule 65 of the Rules of Court with prayer for temporary restraining order (TRO) and/or writ of preliminary injunction. The petition essentially sought to annul the Resolution of expulsion of the DLSUCSB Joint Discipline Board . The following day, June 6, 1995, respondent Judge issued a TRO directing DLSU, its subordinates, agents, representatives and/or other persons acting for and in its behalf to refrain and desist from implementing the Resolution. On June 19, 1995, petitioner Sales filed a motion to dismiss in behalf of all petitioners, except James Yap. On June 20, 1995, petitioners filed a supplemental motion to dismiss the petitions-in-intervention. On September 20, 1995, respondent Judge issued an Order denying petitioners' (respondents there) motion to dismiss and its supplement, and granted private respondents' (petitioners there) prayer for a writ of preliminary injunction. Despite the said order, private respondent Aguilar was refused enrollment by petitioner DLSU when he attempted to enroll on September 22, 1995 for the second term of SY 1995-1996. Thus, on September 25, 1995, Aguilar filed with respondent Judge an urgent motion to cite petitioners (respondents there) in contempt of court. Aguilar also prayed that petitioners be compelled to enroll him at DLSU in accordance with respondent Judge's Order dated September 20, 1995. On September 25, 1995, respondent Judge issued a writ of preliminary injunction. On May 14, 1996, the CHED issued its questioned Resolution No. 181-96, summarily disapproving the penalty of expulsion for all private respondents. As for Aguilar, he was to be reinstated, while other private respondents were to be excluded. Despite the directive of CHED, petitioner DLSU again prevented private respondent Aguilar from enrolling and/or attending his classes. Issue: Can petitioner DLSU invoke its right to academic freedom? Held: Petitioner DLSU, as an institution of higher learning, possesses academic freedom which includes determination of who to admit for study.

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Section 5(2), Article XIV of the Constitution guaranties all institutions of higher learning academic freedom. This institutional academic freedom includes the right of the school or college to decide for itself, its aims and objectives, and how best to attain them free from outside coercion or interference save possibly when the overriding public interest calls for some restraint. According to present jurisprudence, academic freedom encompasses the independence of an academic institution to determine for itself (1) who may teach, (2) what may be taught, (3) how it shall teach, and (4) who may be admitted to study. It cannot be gainsaid that "the school has an interest in teaching the student discipline, a necessary, if not indispensable, value in any field of learning. By instilling discipline, the school teaches discipline. Accordingly, the right to discipline the student likewise finds basis in the freedom "what to teach." Indeed, while it is categorically stated under the Education Act of 1982 that students have a right "to freely choose their field of study, subject to existing curricula and to continue their course therein up to graduation," such right is subject to the established academic and disciplinary standards laid down by the academic institution. Petitioner DLSU, therefore, can very well exercise its academic freedom, which includes its free choice of students for admission to its school. (Sweet Lao) CSC vs. Sojor 554 scra 160 Facts: On August 1, 1991, respondent Sojor was appointed by then President Corazon Aquino as president of the Central Visayas Polytechnic College (CVPC) in Dumaguete City. In June 1997, Republic Act (R.A.) No. 8292, or the Higher Education Modernization Act of 1997, was enacted. This law mandated that a Board of Trustees (BOT) be formed to act as the governing body in state colleges. The BOT of CVPC appointed respondent as president, with a four-year term beginning September 1998 up to September 2002. Upon the expiration of his first term of office in 2002, he was appointed president of the institution for a second fouryear term, expiring on September 24, 2006. On June 25, 2004, CVPC was converted into the Negros Oriental State University (NORSU). A Board of Regents (BOR) succeeded the BOT as its governing body. Meanwhile, three (3) separate administrative cases against respondent were filed by CVPC faculty members before the CSC Regional Office (CSC-RO) No. VII in Cebu City, namely: (1) Dishonesty, Misconduct, and Falsification of Official Document; (2) Dishonesty, Grave Misconduct, and Conduct Prejudicial to the Best Interest of the Service; and (3) Nepotism. Issue: Does the assumption by the CSC of jurisdiction over a president of a state university violate academic freedom? Ruling: Although the BOR of NORSU is given the specific power under R.A. No. 9299 to discipline its employees and officials, there is no showing that such power is exclusive. When the law bestows upon a government body the jurisdiction to hear and decide cases involving specific matters, it is to be presumed that such jurisdiction is exclusive unless it be proved that another body is likewise vested with the same jurisdiction, in which case, both bodies have concurrent jurisdiction over the matter. All members of the civil service are under the jurisdiction of the CSC, unless otherwise provided by law. Being a non-career civil servant does not remove respondent from the ambit of the CSC. Career or non-career, a civil service official or employee is within the jurisdiction of the CSC. Academic institutions and personnel are granted wide latitude of action under the principle of academic freedom. Academic freedom encompasses the freedom to determine who may teach, who may be taught, how it shall be taught, and who may be admitted to study. Following that doctrine, this Court has recognized that institutions of higher learning has the freedom to decide for itself the best methods to achieve their aims and objectives, free from outside coercion, except when the welfare of the general public so requires. They have the independence to determine who to accept to study in their school and they cannot be compelled by mandamus to enroll a student. That principle, however, finds no application to the facts of the present case. Contrary to the matters traditionally held to be justified to be within the bounds of academic freedom, the administrative complaints filed against Sojor involve violations of civil service rules. He is facing charges of nepotism, dishonesty, falsification of official documents, grave misconduct, and conduct prejudicial to the best

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

interest of the service. These are classified as grave offenses under civil service rules, punishable with suspension or even dismissal. This Court has held that the guaranteed academic freedom does not give an institution the unbridled authority to perform acts without any statutory basis. For that reason, a school official, who is a member of the civil service, may not be permitted to commit violations of civil service rules under the justification that he was free to do so under the principle of academic freedom.

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indication that the episode poses any clear and present danger. Petitioner also filed Civil Case. Petitioner alleged that the respondent Board acted without jurisdiction or with grave abuse of discretion in requiring petitioner to submit the VTR tapes of its TV program and in x-rating them. It cited its TV Program Series Nos. 115, 119, 121 and 128. In their Answer, respondent Board invoked its power under PD No. 19861 in relation to Article 201 of the Revised Penal Code. The Iglesia ni Cristo insists on the literal translation of the bible and says that our (Catholic) veneration of the Virgin Mary is not to be condoned because nowhere it is found in the bible. The board contended that it outrages Catholic and Protestant's beliefs. RTC ruled in favor of petitioners. CA however reversed it hence this petition. Issue: Whether or Not the "ang iglesia ni cristo" program is not constitutionally protected as a form of religious exercise and expression. Ruling: Yes. Any act that restrains speech is accompanied with presumption of invalidity. It is the burden of the respondent Board to overthrow this presumption. If it fails to discharge this burden, its act of censorship will be struck down. This is true in this case. So-called "attacks" are mere criticisms of some of the deeply held dogmas and tenets of other religions. RTCs ruling clearly suppresses petitioner's freedom of speech and interferes with its right to free exercise of religion. attack is different from offend any race or religion. The respondent Board may disagree with the criticisms of other religions by petitioner but that gives it no excuse to interdict such criticisms, however, unclean they may be. Under our constitutional scheme, it is not the task of the State to favor any religion by protecting it against an attack by another religion. Religious dogmas and beliefs are often at war and to preserve peace among their followers, especially the fanatics, the establishment clause of freedom of religion prohibits the State from leaning towards any religion. Respondent board cannot censor the speech of petitioner Iglesia ni Cristo simply because it attacks other religions, even if said religion happens to be the most numerous church in our country. The basis of freedom of religion is freedom of thought and it is best served by encouraging the marketplace of dueling ideas. It is only where it is unavoidably necessary to prevent an immediate and grave danger to the security and welfare of the community that infringement of religious freedom may be justified, and only to the smallest extent necessary to avoid the danger. There is no showing whatsoever of the type of harm the tapes will bring about especially the gravity and imminence of the threatened harm. Prior restraint on speech, including religious speech, cannot be justified by hypothetical fears but only by the showing of a substantive and imminent evil. It is inappropriate to apply the clear and present danger test to the case at bar because the issue involves the content of speech and not the time, place or manner of speech. Allegedly, unless the speech is first allowed, its impact cannot be measured, and the causal connection between the speech and the evil apprehended cannot be established. The determination of the question as to whether or not such vilification, exaggeration or fabrication falls within or lies outside the boundaries of protected speech or expression is a judicial function which cannot be arrogated by an administrative body such as a Board of Censors." A system of prior restraint may only be validly administered by judges and not left to administrative agencies. Ang mga Kaanib vs. Iglesia 372 scra 172 Facts: Respondent Iglesia ng Dios Kay Cristo Jesus, Haligi at Suhay ng Katotohanan, is a non-stock religious corporation registered in 1936. In 1976, some of its members disassociated and registered itself under the name Iglesia ng Dios Kay Cristo Jesus, Haligi at Saligan ng Katotohanan with the Securities and Exchange Commission. In 1979, respondent filed with the Commission a petition to compel the latter to change its corporate name on the ground that it is similar to its own. SEC rendered judgment against the latter, which became final, but during the pendency of the case, the latter caused the registration of a new corporation under the name: Ang Mga Kaanib sa Iglesia ng Dios kay Kristo Hesus, HSK, sa Bansang Pilipinas. Ordered again by the Commission to change said corporate name because of a similar complaint filed by respondent, petitioner invoked freedom of religion. Issue: Whether or not SEC interfered with petitioners freedom of religion. Ruling: SEC did not interefere with the freedom to believe of its members, or their right to act in accordance with their beliefs. Ordering a religious society or corporation to change its corporate name on the ground that it is deceptively similar or identical to another is not a violation of the constitutionally guaranteed right to religious freedom. In so doing, the SEC merely compelled petitioner to abide by one of the SEC guidelines in the approval of corporate

IV. FREEDOM OF RELIGION A. NON-ESTABLISHMENT CLAUSE

Manosca vs. Court of Appeals 252 scra 412 Facts: Petitioners own a piece of land consisting of 492 square meters, which was later ascertained by the National Historical Institute to be the birthsite of Felix Y. Manalo, the founder of Iglesia ni Cristo. Consequently, it was declared as a national historical landmark, and the Republic instituted expropriation proceedings. Issue: Would the expropriation constitute an application of funds for the use, benefit or support of a religious entity? Ruling: The attempt to give some religious perspective to the cases deserve little consideration, for what should be significant is the principal objective of, not the casual consequences that might follow from, the exercise of the power. The purpose of setting up a marker is essentially to recognize the distinctive distribution of the late Felix Manalo to the culture of the Philippines, rather than to commemorate his founding and leadership of the Iglesia ni Cristo. The practical reality that the greater benefit may be derived by its members than by most others could well be true but such a peculiar advantage still remains to be merely incidental and secondary in nature. Indeed that only a few would actually benefit from the expropriation of property does not necessarily diminish the essence and character of public use. Austria vs. NLRC 312 SCRA 410 Facts: Austria was a Pastor of the Seventh Day Adventists. After serving the church for 28 years in various capacitites, he was dismissed for alleged misappropriation of denominational funds. He filed a case before the Labor Arbiter praying for reinstatement, backwages and damages. Citing lack of jurisdiciton, the NLRC dismissed his complaint due to the constitutional provision on separation of church and state since the case allegedly involved an ecclesiastical affair into which the state cannot interfere. Issue: Whether or not the case involves an ecclesiastical affair into which the state cannot interfere. Ruling: The case does not concern an ecclesiastical or purely religious affair. An ecclesiastical affair is one that concerns doctrine, creed or form of worship of the church, or the adoption and enforcement within a religious association of regulations for the government of the membership, and the power of excluding from such associations those deemed unworthy of membership. Based on this definition, while this case relates to the church and its religious minister, it does not ipso facto give the case a religious significance. What is involved here is the relationship of the church as an employer and the minister as an employee. It is purely secular and has no relation whatsoever with the practice of faith, worship and the dotrines of the church. In this case, Austria was not expelled from membership of the church but was terminated from employment. The grounds invoked for his dismissal such as misappropriation, breach of trust, serious misconduct, are based on the Labor Code. By this, it is clear that the reason for the dismissal is not religious un nature. Iglesia ni Cristo vs. CA 259 scra 529 Facts: Petitioner has a television program entitled "Ang Iglesia ni Cristo" aired on Channel 2 every Saturday and on Channel 13 every Sunday. The program presents and propagates petitioner's religious beliefs, doctrines and practices often times in comparative studies with other religions. Petitioner submitted to the respondent Board of Review for Moving Pictures and Television the VTR tapes of its TV program Series Nos. 116, 119, 121 and 128. The Board classified the series as "X" or not for public viewing on the ground that they "offend and constitute an attack against other religions which is expressly prohibited by law." On November 28, 1992, it appealed to the Office of the President the classification of its TV Series No. 128 which allowed it through a letter of former Executive Secretary Edelmiro A. Amante, Sr., addressed for Henrietta S. Mendez reversing the decision of the respondent Board. According to the letter the episode in is protected by the constitutional guarantee of free speech and expression and no

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names, namely its undertaking to change its corporate name in the event another entity has acquired a prior right to the corporate name. IDCP vs. Office 405 SCRA 497 Facts: The Islamic Dawah Council of the Philippines, Inc. (IDCP) is a non-governmental organization extending services to Muslim Communities. The Regional Islamic Dawah Council of Southeast Asia and Pacific accredited it to issue halal certifications to qualified food products and food manufacturers. In accordance with Islamic practice, a food becomes halal only after performance of religious ritual and prayer. In 2001, however, the Office of the Executive Secretary issued EO 46 designating the office of Muslim Affairs the exclusice authority to issue halal certificates. Issue: Is EO 46 valid? Ruling: No. Classifying a food product as halal is a religious function because the standards used are drawn from Quran and Islamic beliefs. By giving OMA the exclusive power to classify food products as halal, EO 46 encroached on the religious freedom of Muslim organizations to interpret for Filipino Muslims what food products are fit for Muslim consumption. Also, by arrogating to itseld the task of issuing halal certifications, the state has in effect forced muslims to accept its own iterpretation of the Quran and Sunnah on halal food. In the absence, of an immediate and grace danger to security and welfare of the community, the state cannot justify the infringement of religious freedom. Re: Request of Muslim 477 scra 648 Facts: In their Letter dated November 19, 2001 addressed to Executive Judge Valerio M. Salazar, Regional Trial Court of Iligan City, several Muslim employees in the different courts in the said city request that they be allowed to enjoy the following privileges: 1. to hold office hours from 7:30 a.m. to 3:30 p.m. without lunch break or coffee breaks during the month of Ramadan;

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The remedy of Muslim employees, with respect to the request to be excused from work from 10:00 a.m. to 2:00 p.m. every Friday during the entire calendar year, is legislative, which is to ask Congress to enact a legislation expressly exempting them from compliance with the prescribed government working hours. Taruc vs. Dela Cruz 453 scra 123 Facts: Petitioners were lay members of the Philippine Independent Church (PIC) in Socorro, Surigao del Norte. Respondents Porfirio de la Cruz and Rustom Florano were the bishop and parish priest, respectively, of the same church in that locality. Petitioners, led by Dominador Taruc, clamored for the transfer of Fr. Florano to another parish but Bishop de la Cruz denied their request. Meanwhile, hostility among the members of the PIC in Socorro, Surigao del Norte worsened when petitioner Taruc tried to organize an open mass to be celebrated by a certain Fr. Renato Z. Ambong during the town fiesta of Socorro. When Taruc informed Bishop de la Cruz of his plan, the Bishop tried to dissuade him from pushing through with it because Fr. Ambong was not a member of the clergy of the diocese of Surigao and his credentials as a parish priest were in doubt. The Bishop also appealed to petitioner Taruc to refrain from committing acts inimical and prejudicial to the best interests of the PIC. He likewise advised petitioners to air their complaints before the higher authorities of PIC if they believed they had valid grievances against him, the parish priest, the laws and canons of the PIC. Bishop de la Cruz, however, failed to stop Taruc from carrying out his plans. On June 19, 1993, at around 3:00 p.m., Taruc and his sympathizers proceeded to hold the open mass with Fr. Ambong as the celebrant. On June 28, 1993, Bishop de la Cruz declared petitioners expelled/excommunicated from the Philippine Independent Church. Issue: Whether or not the courts have jurisdiction to hear a case involving the expulsion/excommunication of members of a religious institution. Ruling: We rule that the courts do not. We agree with the Court of Appeals that the expulsion/excommunication of members of a religious institution/organization is a matter best left to the discretion of the officials, and the laws and canons, of said institution/organization. It is not for the courts to exercise control over church authorities in the performance of their discretionary and official functions. Rather, it is for the members of religious institutions/organizations to conform to just church regulations. We would, however, like to comment on petitioners claim that they were not heard before they were expelled from their church. The records show that Bishop de la Cruz pleaded with petitioners several times not to commit acts inimical to the best interests of PIC. They were also warned of the consequences of their actions, among them their expulsion/excommunication from PIC. Yet, these pleas and warnings fell on deaf ears and petitioners went ahead with their plans to defy their Bishop and foment hostility and disunity among the members of PIC in Socorro, Surigao del Norte. They should now take full responsibility for the chaos and dissension they caused. (Kim ledesma) Estrada vs. Escritor 408s1(2003) Facts: Escritor became a court stenographer in 1982. Though lawfully married, she was actually separated from her husband and lived with another man. The other man is also married to another woman. Even if Escritors husband had died when the complaint was filed, the status of her live-in partner prevented marriage. Escritor has a child with the other man. When charged administratively for gross immorality, she claimed that the conjugal arrangement is sanctioned by the Jehovahs Witnesses, the sect where she belongs. In accordance with church rules, she executed a Declaration of Pledging Faithfulness, which is deposited in the Watch Tower Central Office, before entering into the union. Held: The test to be applied is the compelling state interest test. The government must be heard on the issue as it has not been given an opportunity to discharge its burden of demonstrating the compelling state interest which can override respondents religious belief and practice. The solicitor general is ordered to intervene in the case where it will be given the opportunity (a) to examine the sincerity of respondents claimed religious belief and practice: (b) to present evidence on the states compelling interest to override

2. to be excused from work from 10:00 a.m. to 2:00 p.m. every Friday (Muslim Prayer Day) during the entire calendar year. Issue: Whether or not Muslim employees may be excused from work from 10:00 a.m. to 2:00 p.m. every Friday (Muslim Prayer Day) during the entire calendar year on the ground of religious freedom. Ruling: Art. III, section 5 of the Constitution contains two aspects: (1) the non-establishment clause; and (2) the free exercise clause. The subject requests are based on the latter and in interpreting this clause (the free exercise clause) embodied in the Constitution, the Court has consistently adhered to the doctrine that: The right to religious profession and worship has a two-fold aspect, viz., freedom to believe and freedom to act on ones beliefs. The first is absolute as long as the belief is confined within the realm of thought. The second is subject to regulation where the belief is translated into external acts that affect the public welfare. The Court recognizes that the observance of Ramadan and the Friday Muslim Prayer Day is integral to the Islamic faith. However, while the observance of Ramadan and allowing the Muslim employees in the Judiciary to hold flexible office hours from 7:30 a.m. to 3:30 p.m. without any break during the month of Ramadan finds support in Section 3 (a) of P.D. No. 291, as amended by P.D. No. 322, there is no such basis to excuse them from work from 10:00 a.m. to 2:00 p.m. every Friday, the Muslim Prayer Day, during the entire calendar year. To allow the Muslim employees in the Judiciary to be excused from work from 10:00 a.m. to 2:00 p.m. every Friday (Muslim Prayer Day) during the entire calendar year would mean a diminution of the prescribed government working hours. For then, they would be rendering service twelve (12) hours less than that required by the civil service rules for each month. Further, this would encourage other religious denominations to request for similar treatment. The performance of religious practices, whether by the Muslim employees or those belonging to other religious denominations, should not prejudice the courts and the public. Indeed, the exercise of religious freedom does not exempt anyone from compliance with reasonable requirements of the law, including civil service laws.

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respondents religious beliefs and practice: (c) to show that the means the state adopts in pursuing its interest is the least restrictive to respondents religious freedom. Estrada vs. Escritor 492s1(2006) Facts: Same facts as stated. This is the resolution after second proceedings. Held: The States attitude towards the church or religious matters should be one of the benevolent neutrality. This means that while separation is maintained, it must not be hostile. But it must be benevolent, or one of accommodation, since the constitution considers religion as a cherished right. Under the compelling interest test, the State is permitted to interfere in religious practice, if it is able to show that it has an interest to protect which is paramount and compelling. In this case, the State interest is in protecting marriage as a social institution. But the bare claim that the couples arrangement is destructive of this interest is not enough. The state must articulate in specific terms the state interest involved in preventing the exemption, which must be compelling for only the gravest abuses, endangering paramount interests can limit the fundamental right to religious freedom. In other words, the government must do more than assert the objectives at risk if exemption is given; it must precisely show how and to what extent those objectives will be undermined if exemptions are granted. In the case, the state has not evinced any concrete interest in enforcing the concubinage or bigamy charges against respondent or her partner. The state has never sought to prosecute respondent nor her partner. The states asserted interest thus amounts only to the symbolic preservation of an un-enforced prohibition. Indeed, there is no evidence of the alleged prejudice to the best interest of the service. More importantly, the Jehovahs Witnesses have standards and procedures which must be followed before cohabitation without marriage is given the blessing of the congregation. This includes an investigative process whereby the elders of the congregation verify the circumstances of the declarants. Also, the Declaration is not a blanket authority to cohabit without marriage because once all legal impediments for the couple are lifted, the validity of the Declaration ceases, and the congregation requires that the couple legalized their union.

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convent, its use is limited to the necessities of the priest, which comes under the exemption. In regard to the lot which formerly was the cemetery, while it is no longer used as such, neither is it used for commercial purposes and, according to the evidence, is now being used as a lodging house by the people who participate in religious festivities, which constitutes an incidental use in religious functions, which also comes within the exemption. TOLENTINO vs. SECRETARY FACTS: Petitioners seek reconsideration of the SC decision dismissing the petitions for the declaration of unconstitutionality of R.A. No. 7716, otherwise known as the Expanded Value-Added Tax Law. It was contended by petitioners that said law violates the constitutionally guaranteed religious liberty. ISSUE: W/N the E-VAT law infringes religious freedom. HELD: NO. Petitioners assert that does not really matter that the law does not discriminate because "even nondiscriminatory taxation on constitutionally guaranteed freedom is unconstitutional." It cites in support of this assertion the following statement in Murdock v. Pennsylvania: The fact that the ordinance is "nondiscriminatory" is immaterial. The protection afforded by the First Amendment is not so restricted. A license tax certainly does not acquire constitutional validity because it classifies the privileges protected by the First Amendment along with the wares and merchandise of hucksters and peddlers and treats them all alike. Such equality in treatment does not save the ordinance. Freedom of press, freedom of speech, freedom of religion are in preferred position. However, the Court was speaking in that case of a license tax, which, unlike an ordinary tax, is mainly for regulation. Its imposition on the press is unconstitutional because it lays a prior restraint on the exercise of its right. Hence, although its application to others, such those selling goods, is valid, its application to the press or to religious groups, such as the Jehovah's Witnesses, in connection with the latter's sale of religious books and pamphlets, is unconstitutional. A similar ruling was made by this Court in American Bible Society v. City of Manila, which invalidated a city ordinance requiring a business license fee on those engaged in the sale of general merchandise. It was held that the tax could not be imposed on the sale of bibles by the American Bible Society without restraining the free exercise of its right to propagate. The VAT is, however, different. It is not a license tax. It is not a tax on the exercise of a privilege, much less a constitutional right. It is imposed on the sale, barter, lease or exchange of goods or properties or the sale or exchange of services and the lease of properties purely for revenue purposes. To subject the press to its payment is not to burden the exercise of its right any more than to make the press pay income tax or subject it to general regulation is not to violate its freedom under the Constitution.

1. 2. 3.

OPERATION OF SECTARIAN SCHOOLS RELIGIOUS SCHOOLS INSTRUCTIONS IN PUBLIC

TAX EXEMPTION

Bishop of Nueva Segovia vs. Provincial Board Facts: Roman Catholic Apostolic Church, represented by the Bishop of Nueva Segovia (BNS), possesses and is the owner of a parcel of land in the municipality of San Nicolas, Ilocos Norte, all four sides of which face on public streets. On the south side is a part of the church yard, the convent and an adjacent lot used for a vegetable garden, in which there is a stable and a well for the use of the convent. In the center is the remainder of the churchyard and the church. On the north side is an old cemetery with two of its walls still standing, and a portion where formerly stood a tower, the base of which may still be seen. The provincial board required BNS to pay land taxes. BNS paid under protest the land tax on the lot adjoining the convent and the lot which formerly was the cemetery with the portion where the tower stood. Thereafter BNS filed an action for the recovery of the sum paid by it to the provincial board of Ilocos Norte by way of land tax, alleging that the collection of this tax is illegal. Issue: WON the lots in question are exempt from payment of the land taxes. Held: YES! The exemption in favor of the convent in the payment of the land tax (sec. 344 [c] Administrative Code) refers to the home of the priest who presides over the church and who has to take care of himself in order to discharge his duties. It therefore must, in this sense, include not only the land actually occupied by the church, but also the adjacent ground destined to the ordinary incidental uses of man. Except in large cities where the density of the population and the development of commerce require the use of larger tracts of land for buildings, a vegetable garden belongs to a house and, in the case of a

4.

PUBLIC AID TO RELIGION

AGLIPAY vs. RUIZ

Facts: Petitioner, Supreme Head of the Philippine Independent Church, seeks the issuance from this court of a writ of prohibition to prevent the respondent Director of Posts from issuing and selling postage stamps commemorative of the Thirty-third International Eucharistic Congress. Director of Posts announced that he would order the issues of postage stamps commemorating the celebration in the City of Manila of the Thirty-third international Eucharistic Congress, organized by the Roman Catholic Church. It is alleged that this action of the respondent is violative of the provisions of section 23, subsection 3, Article VI, of the Constitution of the Philippines, which provides as follows: No public money or property shall ever be appropriated, applied, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, secretarian, institution, or system of religion, or for the use, benefit, or support of any priest, preacher, minister, or other religious teacher or dignitary as such, except when such priest,

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

preacher, minister, or dignitary is assigned to the armed forces or to any penal institution, orphanage, or leprosarium. Issue:Whether or not the issuance of postage stamp commemorating the celebration organized by the Roman Catholic Church violate the Constitution Ruling: The issuance of the postage stamps in question was not inspired by any sectarian denomination. The stamps were not issue and sold for the benefit of the Roman Catholic Church. Nor were money derived from the sale of the stamps given to that church. On the contrary, it appears that the only purpose in issuing and selling the stamps was "to advertise the Philippines and attract more tourist to this country." The officials concerned merely, took advantage of an event considered of international importance "to give publicity to the Philippines and its people. While the issuance and sale of the stamps in question may be said to be inseparably linked with an event of a religious character, the resulting propaganda, if any, received by the Roman Catholic Church, was not the aim and purpose of the Government. Ignacio vs. ELA Facts: Jehovah's Witnesses Iganacio et al brought an action to compel Mayor Ela to grant them a permit to hold a public meeting at the public plaza of Sta. Cruz, Zambales, together with the kiosk, on such date and time as may be applied for by them. Mayor Ela stated that he had not refused the request to hold a religious meeting at the public plaza as in fact he grave them permission to use the northwestern part of the plaza on July 27, 1952, but they declined to avail of it. He adopted as a policy not to allow the use of the kiosk for any meeting by any religious denomination as it is his belief that said Kiosk should only be used "for legal purposes." Ignacio et al contended that the action taken by Mayor Ela is unconstitutional being an abridgment of the freedom of speech, assembly, and worship guaranteed by our Constitution. Issue: WON there has been violation of the constitution Held: Majority decision said NONE The right to freedom of speech and to peacefully assemble, though guaranteed by our Constitution, is not absolute, for it may be regulated in order that it may not be "injurious to the equal enjoyment of others having equal rights, nor injurious to the rights of the community or society", and this power may be exercised under the "police power" of the state, which is the power to prescribe regulations to promote the health, morals, peace, education, good order or safety, and general welfare of the people. It is true that there is no law nor ordinance which expressly confers upon respondents the power to regulate the use of the public plaza, together with its kiosk, for the purposes for which it was established, but such power may be exercised under his broad powers as chief executive in connection with his specific duty "to issue orders relating to the police or to public safety" within the municipality (section 2194, paragraph c, Revised Administrative Code). And it may even be said that the above regulation has been adopted as an implementation of the constitutional provision which prohibits any public property to be used, directly or indirectly, by any religious denomination (paragraph 3, section 23, Article VI of the Constitution). The power exercised by respondent cannot be considered as capricious or arbitrary considering the peculiar circumstances of this case. It appears that the public plaza, particularly the kiosk, is located at a short distance from the Roman Catholic Church. The proximity of said church to the kiosk has caused some concern on the part of the authorities that to avoid disturbance of peace and order, or the happening of untoward incidents, they deemed it necessary to prohibit the use of that kiosk by any religious denomination as a place of meeting of its members. This was the policy adopted by respondent for sometime previous to the request made by petitioners. Respondent never denied such request but merely tried to enforce his policy by assigning them the northwestern part of the public plaza. It cannot therefore be said that petitioners were denied their constitutional right to assemble for, as was said, such right is subject to regulation to maintain public order and public safety. This is especially so considering that the tenets of petitioners' congregation are derogatory to those of the Roman Catholic Church, a factor which respondent must have considered in denying their request. The contention that the northwestern part of the plaza cannot be considered as part of said plaza but of the road in the northwestern portion beyond the concrete fence is untenable, for it appears that portion is part of the plaza and has a space capable of accommodating hundreds of people. In fact, during the past celebrations of the traditional town fiesta of the municipality, said portion has been utilized by the authorities as a place for staging dramas, zarzuelas, and cinematograph shows. Verily, the pretense of

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petitioners cannot be attributed to the unsuitability of that portion as a meeting place but rather to their obstinate desire to use the kiosk knowing it to be contrary to the policy of the municipality. CONCEPCION, J., dissenting: According to him, there has been violation of the constitution. Respondent's answer advances the proposition that religious assemblies or gatherings may not be held in public property, which is obviously false. Public squares, roads, highways and buildings are devoted to public use, and, as such, are open to all, without distinction. Incidentally to such use, religious acts may be performed in said public property. It is the appropriation thereof mainly for religious purposes that the Constitution does not sanction. Thus, for instance, public lands may not be donated for the construction thereon of churches, convents or seminaries. However, public streets, boulevards and thoroughfares are used, almost daily, for religious processions in the Philippines. Masses and other religious services are often held at the Luneta, the Quirino Grandstand and the Rizal Memorial Stadium, in the City of Manila, as well as in other public property, such as penal institutions, leprosaria and army camps. So long as the use of public property for religious purposes is incidental and temporary, and such as to be reasonably compatible with the use to which other members of the community are similarly entitled, or may be authorized to make, the injunction in section 23 (3) of Article VI of the Constitution is not infringed (see Aglipay vs. Ruiz, 64 Phil., 201; People vs. Fernandez, CA-G.R. No. 1128-R). A mere general possibility - which, at any rate, may be remote - that, if petitioners were allowed to use the grandstand in the town square of Sta. Cruz, Zambales, they may say or do something tending to disturb public order, is insufficient to warrant denial of the license prayed for. Otherwise, we would, in effect, nullify the Bill of Rights, for all rights are susceptible of abuse and, hence, the possibility of such abuse, is always present in the exercise of any right. In this connection, it is important to note that petitioner's aforementioned request is covered by the constitutional mandates on due process, freedom of speech, freedom of assembly and freedom of religion. Obviously, a right of such magnitude as to be guaranteed by no less than four (4) provisions of the fundamental law - and these of the most transcendental and vital to the democratic system underlying the structure of our Republic - cannot be curtailed on the basis of an abstract and speculative possibility of a threat to peace or breach of peace, which may or may not result, if and when, in the exercise of their religious profession, petitioners should transcend the proper bounds, for which, at any rate, they could, and would, be punished under existing laws. In an effort to bolster up the position therein taken, the decision appealed from says that the permit sought by petitioners, if granted "may give rise to disturbance of other religious ceremonies performed" in the Catholic Church, which is said to be "within hearing distance" from the aforementioned kiosko and would amount to giving petitioners a "license to disturb anytime the religious practices or ceremonies of that rival denomination". The weakness of this view is patent. To begin with, respondent could - and, perhaps, should limit the time at which petitioners could give their lectures on religion. Secondly, a license to hold such lectures is not a grant of authority to disturb the religious services held in said Catholic Church. Thirdly, it is a matter of common knowledge that Catholic Churches are not open throughout the day. Masses, if any, are held in the morning. There may be weddings, baptisms and other religious services before noon and often times in the late afternoon; but, generally, such churches are closed in the evening. Masses and other religious activities are not held daily in some churches, particularly in chapels. Hence, petitioners could be authorized to give their lectures at such times as would avoid any possible interference with the normal activities of said Catholic Church. Even, however, if the grandstand in the public square of Sta. Cruz, Zambales, were within the hearing distance of the Catholic Church, the decision appealed from must, to my mind, be reversed. Practically, all plazas in the Philippines have a church nearby. Besides, thousands of churches and chapels may be found in the populated portions of our municipalities, barrios, sitios or other smaller communities. Affirmance of the decision appealed from would imply, therefore, that religious sects or denominations, other than those to which said churches or chapels belong, could be barred from engaging in religious activities within the hearing distance thereof. Considering that modern technology, particularly the use of amplifiers, has extended, and is still extending, considerably the range of the hearing distance, it is clear that, in order to be beyond that range, said religious sects or denominations would have to hold their services or gatherings far away from the town or the populated localities - where people are less likely to be. In other words, the late commers would have to preach in the desert or, at least, in deserted places.

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo B. FREE EXERCISE CLAUSE 1. FLAG SALUTE
EBRALINAG vs. DIVISION Facts: This involves 2 consolidated special civil actions. All the petitioners in these two 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 of July 11, 1955, and by Department Order No. 8 dated July 21, 1955 of the (DECS) making the flag ceremony compulsory in all educational institutions. Jehovah's Witnesses admittedly teach 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 feel bound by the Bible's command to "guard ourselves from idols 1 John 5:21". 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 protects against official control. Issue: whether the children of Jehovah's Witnesses may be expelled from school for disobedience of R.A. No. 1265 and Department Order No. 8. Held: It is somewhat ironic however, that after the Gerona ruling had received legislative cachet by its incorporation in the Administrative Code of 1987, the present Court believes that the time has come to reexamine it. The idea that one may be compelled to salute the flag, sing the national anthem, and recite the patriotic pledge, during a flag ceremony on pain of being dismissed from one's job or of being expelled from school, is alien to the conscience of the present generation of Filipinos who cut their teeth on the Bill of Rights which guarantees their rights to free speech ** and the free exercise of religious profession and worship (Sec. 5, Article III, 1987 Constitution; Article IV, Section 8, 1973 Constitution; Article III, Section 1[7], 1935 Constitution). Religious freedom is a fundamental right which is entitled to the highest priority and the amplest protection among human rights, for it involves the relationship of man to his Creator. "The right to religious profession and worship has a two-fold aspect, vis., freedom to believe and freedom to act on one's belief. The first is absolute as long as the belief is confined within the realm of thought. The second is subject to regulation where the belief is translated into external acts that affect the public welfare". Expelling or banning the petitioners from Philippine schools will bring about the very situation that this Court had feared in Gerona. Forcing a small religious group, through the iron hand of the law, to participate in a ceremony that violates their religious beliefs, will hardly be conducive to love of country or respect for duly constituted authorities. Moreover, the expulsion of members of Jehovah's Witnesses from the schools where they are enrolled will violate their right as Philippine citizens, under the 1987 Constitution, to receive free education, for it is the duty of the State to "protect and promote the right of all citizens to quality education . . . and to make such education accessible to all" (Sec. 1, Art. XIV). We hold that a similar exemption may be accorded to the Jehovah's Witnesses with regard to the observance of the flag ceremony out of respect for their religious beliefs, however "bizarre" those beliefs may seem to others. Nevertheless, their right not to participate in the flag ceremony does not give them a right to disrupt such patriotic exercises.

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in protest. ABS argued that it restrains the free exercise and enjoyment of its religious profession and it provides for religious censorship. Issue: W/N the freedom of religion is violated Held: Yes. The constitutional guaranty of the free exercise and enjoyment of religious profession and worship carries with it the right to disseminate religious information. It may be true that in the case at bar the price asked for the bibles and other religious pamphlets was in some instances a little bit higher than the actual cost of the same but this cannot mean that ABS was engaged in the business or occupation of selling said merchandise for profit. Government cannot impose some form of tax on somebody for the exercise of his religion. Payment of license was a form of tax. If taxes were imposed on religion, in the end, the exercise of religion will be burdensome so that only those who can afford can exercise it. (Bam Lumaad) CENTENO vs. VILLALON 236 SCRA 529 (1996) IGLESIA NI CRISTO vs. CA 259 SCRA 529 (1996)

3.

EXEMPTION FROM UNION SHOP

VICTORIANO vs. ELIZALDE ROPE WORKERS 59 SCRA 54 (1974) 4. DISQUALIFICATION FROM GOVERNMENT OFFICE PAMIL vs. TELERON 86 SCRA 413 (1978) LOCAL

V. LIBERTY OF ABODE AND OF TRAVEL

SALONGA vs. HERMOSO 97 SCRA 121 (1980) MARCOS vs. MANLAPUS 177 SCRA 668 (1989) SILVERIO vs. CA 195 SCRA 760 (1991) COJUANCO vs. SANDIGANBAYAN 300 SCRA 367 (1998) (Angie Malan) FRANCISCO YAP, JR vs. CA June 6, 2001 FACTS: For misappropriating amounts equivalent to P5,500,000.00, petitioner was convicted of estafa by the RTC of Pasig City and was sentenced to prision correctional to prision mayor. The Court of appeals issued the resolution that petitioner may be allowed to post bail in the amount of P5,500,000.00 and (1) be required to secure "a certification/guaranty from the Mayor of the place of his residence that he is a resident of the area and that he will remain to be so until final judgment is rendered or in case he transfers residence, it must be with prior notice to the court and private complainant." And (2) The Commission of lmmigration and Deportation (CID) is directed to issue a hold departure order against accused-appellant. ISSUE: WON the Court of Appeals unduly restricted petitioner's constitutional liberty of abode and travel in imposing the other conditions for the grant of bail. HELD: Under the circumstances of this case, we find that appropriate conditions have been imposed in the bail bond to ensure against the risk of flight, particularly, the combination of the hold-departure order and the requirement that petitioner inform the court of any change of residence and of his whereabouts. Although an increase in the amount of bail while the case is on appeal may be meritorious, we find that the setting of the amount at P5,500,000.00 is unreasonable, excessive, and constitutes an effective denial of petitioner's right to bail.

2. FREEDOM DOCTRINES

TO

PROPAGATE

RELIGIOUS

AMERICAN BIBLE SOCIETY vs. CITY OF MANILA Facts: American Bible Society (ABS) is a foreign, non-stock, non-profit, religious, missionary corporation duly registered and doing business in the Philippines. In the course of its ministry, ABS has been distributing and selling bibles and/or gospel portions thereof. The City of Manila informed ABS that it was conducting the business of general merchandise without providing itself with the necessary Mayor's permit and municipal license and required ABS to secure the corresponding permit and license fees. ABS paid corresponding fees

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

The purpose for bail is to guarantee the appearance of the accused at the trial, or whenever so required by the Court . The amount should be high enough to assure the presence of the accused when required but no higher than is reasonably calculated to fulfill this purpose. To fix bail at an amount equivalent to the civil liability of which petitioner is charged (in this case, P5,500,000.00).is to permit the impression that the amount paid as bail is an exaction of the civil liability that accused is charged of; this we cannot allow because bail is not intended as a punishment, nor as a satisfaction of civil liability which should necessarily await the judgment of the appellate court. Notably, petitioner does not question the hold-departure order which prevents him from leaving the Philippines unless expressly permitted by the court which issued the order. The right to change abode and travel within the Philippines, being invoked by petitioner, are not absolute rights. Section 6, Article III of the 1987 Constitution states: The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law. The order of the Court of Appeals releasing petitioner on bail constitutes such lawful order as contemplated by the above provision. The condition imposed by the Court of Appeals is simply consistent with the nature and function of a bail bond, which is to ensure that petitioner will make himself available at all times whenever the Court requires his presence. Besides, a closer look at the questioned condition will show that petitioner is not prevented from changing abode; he is merely required to inform the court in case he does so. JAMES MIRASOL, RICHARD SANTIAGO, and LUZON MOTORCYCLISTS FEDERATION, INC, vs.DPWH and TOLL REGULATORY BOARD June 8, 2006 FACTS: On January 10, 2001, petitioners sought the declaration of nullity of the administrative issuances for being inconsistent with the provisions of Republic Act 2000, entitled "Limited Access Highway Act" enacted in 1957. DPWH issued on June 25, 1998 Department Order (DO) No. 215 declaring the Manila-Cavite (Coastal Road) Toll Expressway as limited access facilities. Petitioners prayed for the issuance of a temporary restraining order and/or preliminary injunction to prevent the enforcement of the total ban on motorcycles along the entire breadth of North and South Luzon Expressways and the ManilaCavite (Coastal Road) Toll Expressway under DO 215. Petitioners complained that the prohibition on the use of motorcycles in toll ways unduly deprive them of their right to travel. HELD: We are not persuaded. A toll way is not an ordinary road. As a facility designed to promote the fastest access to certain destinations, its use, operation, and maintenance require close regulation. Public interest and safety require the imposition of certain restrictions on toll ways that do not apply to ordinary roads. As a special kind of road, it is but reasonable that not all forms of transport could use it. The right to travel does not mean the right to choose any vehicle in traversing a toll way. The right to travel refers to the right to move from one place to another. Petitioners can traverse the toll way any time they choose using private or public four-wheeled vehicles. Petitioners are not denied the right to move from Point A to Point B along the toll way. Petitioners are free to access the toll way, much as the rest of the public can. The mode by which petitioners wish to travel pertains to the manner of using the toll way, a subject that can be validly limited by regulation. Petitioners themselves admit that alternative routes are available to them. Their complaint is that these routes are not the safest and most convenient. Even if their claim is true, it hardly qualifies as an undue curtailment of their freedom of movement and travel. The right to travel does not entitle a person to the best form of transport or to the most convenient route to his destination. The obstructions found in normal streets, which petitioners complain of (i.e., potholes, manholes, construction barriers, etc.), are not suffered by them alone.

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CASAs President Ms. Ma. Carina C. Lebron as one of its authorized signatories. In 1991, after conducting an investigation, plaintiff discovered that nine (9) of its checks had been encashed by a certain Sonny D. Santos since 1990 in the total amount of P782,000.00. It turned out that Sonny D. Santos with account at BPIs Greenbelt Branch [was] a fictitious name used by third party defendant Leonardo T. Yabut who worked as external auditor of CASA. Third party defendant voluntarily admitted that he forged the signature of Ms. Lebron and encashed the checks. ISSUE: WON Voluntary Constitutional Rights Admission Not Violative of

HELD: The voluntary admission of Yabut did not violate his constitutional rights (1) on custodial investigation, and (2) against self-incrimination. In the first place, he was not under custodial investigation. His Affidavit was executed in private and before private individuals. The mantle of protection under Section 12 of Article III of the 1987 Constitution covers only the period "from the time a person is taken into custody for investigation of his possible participation in the commission of a crime or from the time he is singled out as a suspect in the commission of a crime although not yet in custody." Therefore, to fall within the ambit of Section 12, quoted above, there must be an arrest or a deprivation of freedom, with "questions propounded on him by the police authorities for the purpose of eliciting admissions, confessions, or any information."The said constitutional provision does "not apply to spontaneous statements made in a voluntary manner" whereby an individual orally admits to authorship of a crime."What the Constitution proscribes is the compulsory or coercive disclosure of incriminating facts." Moreover, the right against self-incrimination under Section 17 of Article III of the Constitution, which is ordinarily available only in criminal prosecutions, extends to all other government proceedings -- including civil actions, legislative investigations, and administrative proceedings that possess a criminal or penal aspect-- but not to private investigations done by private individuals. Even in such government proceedings, this right may be waived, provided the waiver is certain; unequivocal; and intelligently, understandingly and willingly made. If in these government proceedings waiver is allowed, all the more is it so in private investigations. It is of no moment that no criminal case has yet been filed against Yabut. The filing thereof is entirely up to the appropriate authorities or to the private individuals upon whom damage has been caused. As we shall also explain later, it is not mandatory for CASA -- the plaintiff below -- to implead Yabut in the civil case before the lower court. Under these two constitutional provisions, "[t]he Bill of Rights does not concern itself with the relation between a private individual and another individual. It governs the relationship between the individual and the State." Moreover, the Bill of Rights "is a charter of liberties for the individual and a limitation upon the power of the [S]tate."These rights are guaranteed to preclude the slightest coercion by the State that may lead the accused "to admit something false, not prevent him from freely and voluntarily telling the truth." Yabut is not an accused here. Besides, his mere invocation of the aforesaid rights "does not automatically entitle him to the constitutional protection." When he freely and voluntarily executed his Affidavit, the State was not even involved. Such Affidavit may therefore be admitted without violating his constitutional rights while under custodial investigation and against self-incrimination. PEOPLE vs. ELIZAR TOMAQUIN July 23, 2004 FACTS: The Cebu City Prosecutor filed an Information charging appellant with Murder by killing Jaquelyn Luchavez Tatoy. The appellant was investigated by SPO2 Mario Monilar of the Homicide Section, Ramos Police Station in Cebu City. After being apprised of his constitutional rights, appellant told SPO2 Monilar that he was willing to confess and asked for Atty. Parawan, the barangay captain, to assist him. Appellant gave his statement with the assistance of Atty. Fortunato Parawan. Appellant also repudiated his extrajudicial confession, saying that Atty. Parawan merely asked him to sign a blank sheet of paper and in exchange, Atty. Parawan promised to assist and help him with his expenses.Appellants extrajudicial confession was taken and transcribed entirely in the Cebuano dialect.

VI. RIGHTS OF PERSONS UNDER CUSTODIAL INTERROGATION

BPI vs. CASA MONTESSORI May 28, 2004

FACTS:On November 8, 1982, plaintiff CASA Montessori International opened Current Account No. 0291-0081-01 with defendant BPI[,] with

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

ISSUE: whether a barangay captain who is a lawyer can be considered an independent counsel within the purview of Section 12, Article III of the 1987 Constitution. Held: No. Section 12, Article III of the 1987 Constitution provides: (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. The words "competent and independent counsel" in the constitutional provision is not an empty rhetoric. It stresses the need to accord the accused, under the uniquely stressful conditions of a custodial investigation, an informed judgment on the choices explained to him by a diligent and capable lawyer. Simply put, Atty. Parawan, as barangay captain, is called upon to enforce the law and ordinances in his barangay and ensure peace and order at all times. On these bases, it is not legally possible to consider Atty. Parawan as an independent counsel of appellant. In People vs. Culala, the Court reiterated the rule that a municipal attorney cannot be an independent counsel because as a legal officer of the municipality, he provides legal assistance and support to the mayor and the municipality in carrying out the delivery of basic services to the people, including the maintenance of peace and order, and it was seriously doubted whether he can effectively undertake the defense of the accused without running into conflict of interests. Thus, the Court held that he is no better than a fiscal or a prosecutor who cannot represent the accused during custodial investigations. This is reiterated in People vs. Taliman, and People vs. Velarde,where we further ruled that a municipal mayor cannot likewise be an independent counsel as required by the Constitution. Similarly in this case, considering that Atty. Parawans role as a barangay captain, was a peacekeeping officer of his barangay and therefore in direct conflict with the role of providing competent legal assistance to appellant who was accused of committing a crime in his jurisdiction, Atty. Parawan could not be considered as an independent counsel of appellant, when the latter executed his extrajudicial confession. What the Constitution requires is the presence of an independent and competent counsel, one who will effectively undertake his clients defense without any intervening conflict of interest. Neither does Atty. Parawan qualify as a competent counsel, i.e., an effective and vigilant counsel. An "effective and vigilant counsel" necessarily and logically requires that the lawyer be present and able to advise and assist his client from the time the confessant answers the first question asked by the investigating officer until the signing of the extrajudicial confession. As held in People vs. Velarde: . . . The competent and independent lawyer so engaged should be present at all stages of the interview, counseling or advising caution reasonably at every turn of the investigation, and stopping the interrogation once in a while either to give advice to the accused that he may either continue, choose to remain silent or terminate the interview. Moreover, the lawyer should ascertain that the confession is made voluntarily and that the person under investigation fully understands the nature and the consequence of his extrajudicial confession in relation to his constitutional rights. A contrary rule would undoubtedly be antagonistic to the constitutional rights to remain silent, to counsel and to be presumed innocent. The assistance rendered by Atty. Parawan to appellant cannot be fittingly described as effective and vigilant. Moreover, that Atty. Parawan is not an effective and vigilant counsel is bolstered by his own testimony that he already suspected appellant as having committed the crime when the latter was brought to his house by the barangay tanods., The Court cannot imagine how Atty. Parawan could have effectively safeguarded appellants rights as an accused during the investigation when he himself entertained the suspicion that appellant is guilty of the crime charged, and naturally, he would want appellant to admit having committed it. 2) It was posited that appellant cannot challenge Atty. Parawans qualification as a competent and independent counsel because he was his choice.

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As provided in Section 12, Article III of the 1987 Constitution, "(A)ny person under investigation for the commission of an offense shall have the right to have competent and independent counsel preferably of his own choice. Ideally, the lawyer called to be present during such investigations should be as far as reasonably possible, the choice of the individual undergoing questioning, but the word "preferably" does not convey the message that the choice of a lawyer by a person under investigation is exclusive as to preclude other equally competent and independent attorneys from handling his defense.What is imperative is that the counsel should be competent and independent. That appellant chose Atty. Parawan does not estop appellant from complaining about the latters failure to safeguard his rights. It appears that appellant chose Atty. Parawan because he was the barangay captain of Brgy. Lorega where appellant resides, and apparently, appellant trusts Atty. Parawan to protect his rights. The latter, however, fell short in tending to the trust reposed on him. Appellant did not finish Grade 1 and does not know how to read and write.As between him and Atty. Parawan who presumably knows the intricacies of the law and appellants predicament, Atty. Parawan should have known better and exercised his sound judgment before conceding to appellants choice. But it did not occur to him to inhibit himself from acting as appellants counsel and instead, he even let appellant go through the investigation and execute the extrajudicial confession knowing fully well that he was biased as regards appellants innocence. Clearly, Atty. Parawan failed to meet the exacting standards of an independent and competent counsel as required by the Constitution. Thus, the extrajudicial confession executed by appellant, even if gospel truth, is deemed an uncounselled confession and therefore, inadmissible in evidence. PEOPLE vs. BENJAMIN SAYABOC January 15, 2004 FACTS: Aninformation was filed charging Benjamin Sayaboc with murder in killing Joseph Galam y Antonio. SPO4 Cagungao was called to the Provincial Command Headquarters in Bayombong, Nueva Vizcaya, to take the statement of Sayaboc. When he arrived at the headquarters he saw Sayaboc being interviewed by reporters inside the investigation room. He then brought Sayaboc to the inner part of the room. Before taking the statement of Sayaboc, he advised the latter of his constitutional rights. Then Sayaboc told him that he wanted to have a counsel of his own choice. But since Sayaboc could not name one, Cagungao asked the police officers to get a lawyer. Half an hour later, the police officers brought Atty. Rodolfo Cornejo of the PAO, who then conferred with Sayaboc for a while. After Cagungao heard Sayaboc say, "okay," he continued the investigation, during which Atty. Cornejo remained silent the entire time. However, Cagungao would stop questioning Sayaboc whenever Atty. Cornejo would leave to go to the comfort room. That night Sayaboc executed an extrajudicial confession in Ilocano dialect. He therein confessed to killing Joseph Galam at the behest of Marlon Buenviaje for the sum of P100,000. He likewise implicated Miguel Buenviaje and Patricio Escorpiso. The confession was also signed by Atty. Cornejo and attested to by one Fiscal Melvin Tiongson. ISSUE: THE TRIAL COURT ERRED IN ADMITTING IN EVIDENCE THE EXTRAJUDICIAL CONFESSION OF ACCUSED SAYABOC WHEN IT WAS TAKEN WITHOUT THE ASSISTANCE OF A COMPETENT AND INDEPENDENT COUNSEL NOR BY AN EFFECTIVE AND VIGILANT COUNSEL. HELD: The admissibility of Sayabocs extrajudicial confession cannot be used in evidence in this case. Section 12 of Article III of the 1987 Constitution provides: Sec. 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. (3) Any confession or admission obtained in violation of this or the preceding section shall be inadmissible in evidence against him. Jurisprudence provides that extrajudicial confessions are presumed to be voluntary.The condition for this presumption, however, is that the prosecution is able to show that the constitutional requirements safeguarding an accuseds rights during custodial investigation have been strictly complied with, especially when the extrajudicial confession has been denounced. The rationale for this requirement is to allay any fear that the person being investigated would succumb

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

to coercion while in the unfamiliar or intimidating environment that is inherent in custodial investigations. Therefore, even if the confession may appear to have been given voluntarily since the confessant did not file charges against his alleged intimidators for maltreatment, the failure to properly inform a suspect of his rights during a custodial investigation renders the confession valueless and inadmissible. Apart from the absence of an express waiver of his rights, the confession contains the passing of information of the kind held to be in violation of the right to be informed under Section 12, Article III of the Constitution. In People v. Jara,the Court explained: The stereotyped "advice" appearing in practically all extrajudicial confessions which are later repudiated has assumed the nature of a "legal form" or model. Police investigators either automatically type it together with the curt "Opo" as the answer or ask the accused to sign it or even copy it in their handwriting. Its tired, punctilious, fixed, and artificially stately style does not create an impression of voluntariness or even understanding on the part of the accused. The showing of a spontaneous, free, and unconstrained giving up of a right is missing. The right to be informed requires "the transmission of meaningful information rather than just the ceremonial and perfunctory recitation of an abstract constitutional principle."It should allow the suspect to consider the effects and consequences of any waiver he might make of these rights. More so when the suspect is one like Sayaboc, who has an educational attainment of Grade IV, was a stranger in Nueva Vizcaya, and had already been under the control of the police officers for two days previous to the investigation, albeit for another offense. We likewise rule that Sayaboc was not afforded his constitutional right to a competent counsel. While we are unable to rule on the unsubstantiated claim that Atty. Cornejo was partial to the police, still, the facts show through the testimonies of Sayaboc and prosecution witness SPO4 Cagungao that Atty. Cornejo remained silent throughout the duration of the custodial investigation. The trial court attributed the silence of Atty. Cornejo to the garrulous nature and intelligence of Sayaboc. We find this explanation unacceptable. That Sayaboc was a "garrulous" man who would "do what he wanted to do regardless of the advice of others" is immaterial. The waiver of a right is within the rights of a suspect. What is lacking is a showing, to the satisfaction of this Court, of a faithful attempt at each stage of the investigation to make Sayaboc aware of the consequences of his actions. If anything, it appears that Sayabocs counsel was ineffectual for having been cowed by his clients enthusiasm to speak, or, worse, was indifferent to it. The right to a competent and independent counsel means that the counsel should satisfy himself, during the conduct of the investigation, that the suspect understands the import and consequences of answering the questions propounded. In People v. Deniega, we said: The desired role of counsel in the process of custodial investigation is rendered meaningless if the lawyer merely gives perfunctory advice as opposed to a meaningful advocacy of the rights of the person undergoing questioning. If the advice given is so cursory as to be useless, voluntariness is impaired. This is not to say that a counsel should try to prevent an accused from making a confession. Indeed, as an officer of the court, it is an attorneys duty to, first and foremost, seek the truth. However, counsel should be able, throughout the investigation, to explain the nature of the questions by conferring with his client and halting the investigation should the need arise. The duty of a lawyer includes ensuring that the suspect under custodial investigation is aware that the right of an accused to remain silent may be invoked at any time. For these reasons, the extrajudicial confession of Sayaboc cannot be used in evidence against him. PEOPLE vs. DINDO "BEBOT" MOJELLO March 9, 2004 FACTS: Appellant Dindo Mojello, alias "Bebot" was charged with the crime of rape with homicide with Lenlen Rayco, 12 years of age and with mental deficiency. On an investigation conducted by SPO2 Wilfredo Giducos, he admitted that he was the perpetrator of the dastardly deed. Appellant was assisted by Atty. Isaias Giduquio during his custodial interrogation. His confession was witnessed by Barangay Captains Wilfredo Batobalanos and Manolo Landao. Batobalanos testified that after it was executed, the contents of the document were read to appellant who later on voluntarily signed it. Appellant's extrajudicial confession was sworn before Judge Cornelio T. Jaca of the Municipal Circuit Trial Court (MCTC) of Sta. Fe-Bantayan.

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The trial court rendered judgment finding appellant guilty beyond reasonable doubt of the crime of rape with homicide, and sentencing him to suffer the death penalty. ISSUE: whether the extrajudicial confession executed by appellant is admissible in evidence HELD: Yes. At the core of the instant case is the application of the law on custodial investigation enshrined in Article III, Section 12, paragraph 1 of the Constitution, which provides: Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. The above provision in the fundamental Charter embodies what jurisprudence has termed as "Miranda rights" stemming from the landmark decision of the United States Supreme Court, Miranda v. Arizona. It has been the linchpin of the modern Bill of Rights, and the ultimate refuge of individuals against the coercive power of the State. The Miranda doctrine requires that: (a) any person under custodial investigation has the right to remain silent; (b) anything he says can and will be used against him in a court of law; (c) he has the right to talk to an attorney before being questioned and to have his counsel present when being questioned; and (d) if he cannot afford an attorney, one will be provided before any questioning if he so desires. In the Philippines, the right to counsel espoused in the Miranda doctrine was based on the leading case of People v. Galit and Morales, Jr. v. Enrile, rulings subsequently incorporated into the present Constitution. The Miranda doctrine under the 1987 Charter took on a modified form where the right to counsel was specifically qualified to mean competent and independent counsel preferably of the suspect's own choice. Waiver of the right to counsel likewise provided for stricter requirements compared to its American counterpart; it must be done in writing, and in the presence of counsel. Verily, it may be observed that the Philippine law on custodial investigation has evolved to provide for more stringent standards than what was originally laid out in Miranda v. Arizona. The purpose of the constitutional limitations on police interrogation as the process shifts from the investigatory to the accusatory seems to be to accord even the lowliest and most despicable criminal suspects a measure of dignity and respect. The main focus is the suspect, and the underlying mission of custodial investigation to elicit a confession. The extrajudicial confession executed by appellant on December 23, 1996, applying Art. III, Sec. 12, par. 1 of the Constitution in relation to Rep. Act No. 7438, Sec. 2 complies with the strict constitutional requirements on the right to counsel. In other words, the extrajudicial confession of the appellant is valid and therefore admissible in evidence. As correctly pointed out by the Solicitor General, appellant was undoubtedly apprised of his Miranda rights under the Constitution. The court a quo observed that the confession itself expressly states that the investigating officers informed him of such rights. As further proof of the same, Atty. Isaias Giduquio testified that while he was attending a Sangguniang Bayan session, he was requested by the Chief of Police of Sta. Fe to assist appellant. Appellant manifested on record his desire to have Atty. Giduquio as his counsel, with the latter categorically stating that before the investigation was conducted and appellant's statement taken, he advised appellant of his constitutional rights. Atty. Giduquio even told appellant to answer only the questions he understood freely and not to do so if he was not sure of his answer. Atty. Giduquio represented appellant during the initial stages of the trial of the present case. Atty. Giduquio was a competent and independent counsel of appellant within the contemplation of the Constitution. No evidence was presented to negate his competence and independence in representing appellant during the custodial investigation. Moreover, appellant manifested for the record that Atty. Giduquio was his choice of counsel during the custodial proceedings. The phrase "preferably of his own choice" does not convey the message that the choice of a lawyer by a person under investigation is exclusive as to preclude other equally competent and independent attorneys from handling the defense; otherwise the tempo of custodial investigation will be solely in the hands of the accused who can impede, nay, obstruct the progress of the interrogation by simply selecting a lawyer who, for one reason or another, is not available to protect his interest.

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

We ruled in People v. Continente that while the choice of a lawyer in cases where the person under custodial interrogation cannot afford the services of counsel or where the preferred lawyer is not available is naturally lodged in the police investigators, the suspect has the final choice as he may reject the counsel chosen for him and ask for another one. A lawyer provided by the investigators is deemed engaged by the accused when he does not raise any objection against the counsel's appointment during the course of the investigation, and the accused thereafter subscribes to the veracity of the statement before the swearing officer. The right to counsel at all times is intended to preclude the slightest coercion as would lead the accused to admit something false. The lawyer, however, should never prevent an accused from freely and voluntarily telling the truth. Concededly, the December 17, 1996 custodial investigation upon appellant's apprehension by the police authorities violated the Miranda doctrine on two grounds: (1) no counsel was present; and (2) improper waiver of the right to counsel as it was not made in writing and in the presence of counsel. However, the December 23, 1996 custodial investigation which elicited the appellant's confession should nevertheless be upheld for having complied with Art. III, Sec. 12, par. 1. Even though improper interrogation methods were used at the outset, there is still a possibility of obtaining a legally valid confession later on by properly interrogating the subject under different conditions and circumstances than those which prevailed originally. The records of this case clearly reflect that the appellant freely, voluntarily and intelligently entered into the extrajudicial confession in full compliance with the Miranda doctrine under Art. III, Sec. 12, par. 1 of the Constitution in relation to Rep. Act No. 7438, Sec. 2. SPO2 Wilfredo Abello Giducos, prior to conducting his investigation, explained to appellant his constitutional rights in the Visayan dialect, notably Cebuano, a language known to the appellant. The trial court observed that as to the confession of appellant, he was fully apprised of his constitutional rights to remain silent and his right to counsel, as contained in such confession. Appellant was properly assisted by Atty. Isaias Giduquio. The extrajudicial confession of appellant was subscribed and sworn to before Judge Cornelio T. Jaca, Municipal Judge of Medellin-Daanbantayan and acting Judge of MCTC Sta. Fe-Bantayan and Madredijos. Judge Jaca declared that he explained to the appellant the contents of the extrajudicial confession and asked if he understood it. He subsequently acknowledged that when appellant subscribed to his statement, Atty. Giduquio, witness Batobalonos and his Clerk of Court were present as well as other people. The extrajudicial confession executed by the appellant followed the rigid requirements of the Miranda doctrine; consequently, it is admissible as evidence. The lower court was correct in giving credence to the extrajudicial confession of the appellant. On cross-examination, appellant Mojello claimed his life was threatened, thereby inducing him to execute an extrajudicial confession, yet he neither filed any case against the person who threatened him, nor he report this to his counsel. He further claimed that he did not understand the contents of the confession which was read in the Visayan dialect, yet he admits that he uses the Visayan dialect in his daily discourse. The confessant bears the burden of proof that his confession is tainted with duress, compulsion or coercion by substantiating his claim with independent evidence other than his own self-serving claims that the admissions in his affidavit are untrue and unwillingly executed. Bare assertions will certainly not suffice to overturn the presumption. The test for determining whether a confession is voluntary is whether the defendant's will was overborne at the time he confessed. In cases where the Miranda warnings have been given, the test of voluntariness should be subsequently applied in order to determine the probative weight of the confession. Accordingly, the presumption of voluntariness of appellant's confession remains unrebutted by his failure to present independent evidence that the same was coerced. It cannot be gainsaid that the constitutional duty of law enforcement officers is to ensure that a suspect has been properly apprised of his Miranda rights, including the right to counsel. It is in the paramount public interest that the foundation of an effective administration of criminal justice relies on the faithful adherence to the Miranda doctrine. Compliance with Art. III, Sec. 12, par. 1 by police authorities is central to the criminal justice system; Miranda rights must in every case be respected, without exception.

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Thus, the confession, having strictly complied with the constitutional requirements under Art. III, Sec. 12, par. 1, is deemed admissible in evidence against appellant. It follows that the admission of culpability made therein is admissible. It is therefore not "fruit of the poisonous tree" since the tree itself is not poisonous. People vs. Malngan Sept. 26, 2006 FACTS: The accused-appellant is charged with the crime of Arson with Multiple Homicide by setting fire upon the twostorey residential house of Roberto Separa. The fire resulted in the destruction of the house of Roberto Separa, Sr. and other adjoining houses and the death of Roberto Separa, Sr. and Virginia Separa together with their four (4) children, namely: Michael, Daphne, Priscilla and Roberto, Jr. At the Barangay Hall, Mercedita Mendoza, neighbor of Roberto Separa, Sr. and whose house was also burned, identified the woman as accused-appellant EDNA who was the housemaid of Roberto Separa, Sr. Upon inspection, a disposable lighter was found inside accused-appellant EDNAs bag. Thereafter, accused-appellant EDNA confessed to Barangay Chairman Bernardo in the presence of multitudes of angry residents outside the Barangay Hall that she set her employers house on fire because she had not been paid her salary for about a year and that she wanted to go home to her province but her employer told her to just ride a broomstick in going home. I S S U E : WO N T H E H O N O R AB L E C O U R T ER R E D I N ALLOWING AND GIVING CREDENCE TO THE UNCOUNSELLED ADMISSIONS ALLEGEDLY GIVEN BY THE ACCUSED TO THE WITNESSES BARANGAY CHAIRMAN REMIGIO BERNARDO, MERCEDITA MENDOZA. HELD: Article III, Section 12 of the Constitution in part provides: (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. x x x x (3) Any confession or admission obtained in violation of this Section or Section 17 hereof shall be inadmissible in evidence. We have held that the abovequoted provision applies to the stage of custodial investigation when the investigation is no longer a general inquiry into an unsolved crime but starts to focus on a particular person as a suspect. Said constitutional guarantee has also been extended to situations in which an individual has not been formally arrested but has merely been invited for questioning. To be admissible in evidence against an accused, the extrajudicial confessions made must satisfy the following requirements: 1.) it must be v o l u n t a r y ; 2 . ) i t m u s t b e ma d e w i t h t h e a s s i s t a n c e o f c o m p e t e n t a n d i n d e p e n d e n t c o u ns e l ; 3 . ) i t m u s t b e express; and 4.) it must be in writing. Arguably, the barangay tanods, including the Barangay Chairman, in this particular instance, may be deemed as law enforcement officer for purposes of applying Article III, Section 12(1) and (3), of the Constitution. When accused-appellant was brought to the barangay hall in the morning of 2 January 2001, s h e w a s a l r e a d y a s u s p e c t , a c t u a l l y t h e o nl y o ne , i n the fire that destroyed several houses as well as k i l l e d t h e w h o l e f a m i l y o f R o be r t o S e p a r a , S r . S h e was, therefore, already under custodial investigation and the rights guaranteed by Article III, Section 1 2 ( 1 ) , o f t h e C o n s t i t u t i o n s ho u l d h a v e a l r e a d y b e e n observed or applied to her. Accused-appellants confession to Barangay Chairman Remigio Bernardo was made in response to the interrogation made by the latter admittedly conducted without first informing accused-appellant of her rights under the C o n s t i t u t i o n o r d o n e i n t h e p r e s e n c e o f co u n s e l . F o r this reason, the confession of accused-appellant, given to Barangay Chairman Remigio Bernardo, as

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

well as the lighter found by the latter in her bag are inadmissible in evidence against her as such were obtained in violation of her constitutional rights. It s ho u l d well be recalled that the constitutional safeguards during custodial i n v e s t i g a t i o ns d o n o t a p p l y t o t h o s e n o t e l i c i t e d through questioning by the police or their agents but given in an ordinary manner whereby the accused verbally admits to having committed the offense as what happened in the case at bar when accusedappellant admitted to Mercedita Mendoza, one of the neighbors of Roberto Separa, Sr., to having started the f i r e i n t h e Se p a r a s h o u s e . T h e t e s t i m o n y o f M e r c e d i t a Mendoza recounting said admission is, unfortunately for accused-appellant, admissible in evidence against her and is not covered by the aforesaid constitutional guarantee. Article III of the Constitution, or the Bill of Rights, solely governs the relationship between the individual on one hand and the State (and its agents) on the other; it does not concern itself with the relation b e t w e e n a p r i v a t e i n d i v i d u a l a nd a n o t h e r p r i v a t e i n d i v i d u a l a s b o t h a c c u s e d - a p p e l l a n t a nd p r o s e c u t i o n witness Mercedita Mendoza undoubtedly are. Here, t h e r e i s n o e v i d e n c e o n r e c o r d t o s ho w t h a t s a i d witness was acting under police authority, so appropriately, accused-appellants uncounselled extrajudicial confession to said witness was properly admitted by the RTC. PEOPLE OF THE PHILIPPINES FRANCISCO April 3, 2007 vs. JERRY RAPEZA y

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b. Any public officer or employee, or anyone acting under his order or his place, who arrests, detains or investigates any person for the commission of an offense shall inform the latter, in a language known to and understood by him, of his rights to remain silent and to have competent and independent counsel, preferably of his own choice, who shall at all times be allowed to confer private with the person arrested, detained or under custodial investigation. If such person cannot afford the services of his own counsel, he must be provided by with a competent and independent counsel. f. As used in this Act, "custodial investigation" shall include the practice of issuing an "invitation" to a person who is investigated in connection with an offense he is suspected to have committed, without prejudice to the liability of the "inviting" officer for any violation of law. If the extrajudicial confession satisfies these constitutional standards, it must further be tested for voluntariness, that is, if it was given freely by the confessant without any form of coercion or inducement Thus, the Court has consistently held that an extrajudicial confession, to be admissible, must conform to the following requisites: 1) the confession must be voluntary; 2) the confession must be made with the assistance of a competent and independent counsel, preferably of the confessants choice; 3) the confession must be express; and 4) the confession must be in writing. If all the foregoing requisites are met, the confession constitutes evidence of a high order because it is presumed that no person of normal mind will knowingly and deliberately confess to a crime unless prompted by truth and conscience. Otherwise, it is disregarded in accordance with the cold objectivity of the exclusionary rule. The latter situation obtains in the instant case for several reasons. Appellant was not informed of his constitutional rights in custodial investigation. A person under custodial investigation essentially has the right to remain silent and to have competent and independent counsel preferably of his own choice and the Constitution requires that he be informed of such rights. The raison d' etre for this requirement was amply explained in People v. Ayson where this Court held, to wit: In Miranda, Chief Justice Warren summarized the procedural safeguards laid down for a person in police custody, "in-custody interrogation" being regarded as the commencement of an adversary proceeding against the suspect. He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise those rights must be afforded to him throughout the interrogation. After such warnings have been given, such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer or make a statement. But unless and until such warnings and waivers are demonstrated by the prosecution at the trial, no evidence obtained as a result of interrogation can be used against him. The objective is to prohibit "incommunicado interrogation of individuals in a police-dominated atmosphere, resulting in selfincriminating statement without full warnings of constitutional rights." The rights above specified, to repeat, exist only in "custodial interrogations," or "in-custody interrogation of accused persons." And, as this Court has already stated, by custodial interrogation is meant "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." The situation contemplated has also been more precisely described by this Court. x x x After a person is arrested and his custodial investigation begins[,] a confrontation arises which at best may be termed unequal. The detainee is brought to an army camp or police headquarters and there questioned and "cross-examined" not only by one but as many investigators as may be necessary to break down his morale. He finds himself in strange and unfamiliar surroundings, and every person he meets he considers hostile to him. The investigators are well-trained and seasoned in their work. They employ all the methods and means that experience and study have taught them to extract the truth, or what may pass for it, out of the detainee. Most detainees are unlettered and are not aware of their constitutional rights. And even if they were, the intimidating and coercive presence of the officers of the law in such an atmosphere overwhelms them into silence. Section 20 of the Bill of Rights seeks to remedy this imbalance.

FACTS: In two (2) separate Informations, appellant, together with Mike Regino, was charged with the murder of the Spouses Cesar Ganzon and Priscilla Libas.. Upon information supplied by a certain Mr. Dela Cruz that appellant had wanted to confess to the crimes, SPO2 Gapas set out to look for appellant. He found appellant fishing in Asinan Island and invited the latter for questioning. Appellant expressed his willingness to make a confession in the presence of a lawyer. Appellant was then brought to the police station after which SPO2 Gapas requested Kagawad Arnel Alcantara to provide appellant with a lawyer. The following day, appellant was brought to the house of Atty. Roberto Reyes, the only available lawyer in the municipality. The typewriter at the police station was out of order at that time and Atty. Reyes could not go to the police station as he was suffering from rheumatism. At the house of Atty. Reyes, in the presence of Vice-Mayor Emiliano Marasigan of Culion, two (2) officials of the Sangguniang Barangay, SPO2 Cuizon and an interpreter, SPO2 Gapas proceeded with the custodial investigation of appellant who was assisted by Atty. Reyes. Appellant was expressly advised that he was being investigated for the death of Libas and Ganzon. An interpreter was provided appellant as he was not well versed in Tagalog being a native of Samar. As he is illiterate, appellant affixed only his thumbmark on the statement above his printed name. Bonifacio Abad, the interpreter, and Atty. Reyes, as the assisting counsel, also signed the statement. Atty. Reyes signed again as the notary public who notarized the statement. As Mike Regino was at large, only appellant was arraigned and he pleaded not guilty. Forthwith, joint trial ensued which resulted in the judgment of guilt against appellant as co-principal for two (2) counts of murder, with conspiracy and evident premeditation attending the commission of the felonies. On the basis of appellants extrajudicial confession, the RTC found him guilty of both crimes. The Court of Appeals upheld the trial court. ISSUE: whether appellants extrajudicial confession is admissible in evidence to warrant the verdict of guilt. HELD: The alleged confession is inadmissible and must perforce be discarded. A confession is admissible in evidence if it is satisfactorily shown to have been obtained within the limits imposed by the 1987 Constitution,Sec. 12, Art. III. Republic Act No. 7438, approved on 15 May 1992, has reinforced the constitutional mandate protecting the rights of persons under custodial investigation. The pertinent provisions read: SEC. 2. Rights of Persons Arrested, Detained or under Custodial Investigation; Duties of Public Officers.a. Any person arrested, detained or under custodial investigation shall at all times be assisted by counsel.

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

We note that appellant did not voluntarily surrender to the police but was "invited" by SPO2 Gapas to the police station. There he was detained from 11 oclock in the morning of 22 October 1995 up to the morning of 23 October 1995 before his extrajudicial statement was allegedly taken. At this juncture, appellant should have been informed of his constitutional rights as he was already considered a suspect, contrary to the finding of the trial court that the mandatory constitutional guidelines only attached when the investigators started to propound questions to appellant on 23 October 1995 in the house of Atty. Reyes. In People v. Dueas, Jr., we ruled, to wit: Custodial investigation refers to the critical pre-trial stage when the investigation ceases to be a general inquiry into an unsolved crime but has begun to focus on a particular person as a suspect. Even supposing that the custodial investigation started only on 23 October 1995, a review of the records reveals that the taking of appellants confession was flawed nonetheless. It is stated in the alleged confession that prior to questioning SPO2 Gapas had informed appellant in Tagalog of his right to remain silent, that any statement he made could be used in evidence for or against him, that he has a right to counsel of his own choice, and that if he cannot afford the services of one, the police shall provide one for him. However, there is no showing that appellant had actually understood his rights. He was not even informed that he may waive such rights only in writing and in the presence of counsel. In order to comply with the constitutional mandates, there should likewise be meaningful communication to and understanding of his rights by the appellant, as opposed to a routine, peremptory and meaningless recital thereof. Since comprehension is the objective, the degree of explanation required will necessarily depend on the education, intelligence, and other relevant personal circumstances of the person undergoing investigation. The extra-judicial confession was allegedly made in Tagalog when accused-appellant is admittedly not well versed in said language. Even if the confession was made in the presence of an interpreter, there is no showing that the rights of a person under investigation were effectively explained and/or interpreted to accused-appellant. The interpreter was not even presented in Court to prove that said rights were translated in a language understood by accused-appellant. Not having been properly informed of his rights prior to questioning and not having waived them either, the alleged confession of appellant is inadmissible. Confession was not made with the assistance of competent and independent counsel of appellants choice. The constitutional requirement obviously had not been observed. Settled is the rule that the moment a police officer tries to elicit admissions or confessions or even plain information from a suspect, the latter should, at that juncture, be assisted by counsel, unless he waives this right in writing and in the presence of counsel. Appellant did not make any such waiver. Assuming that Atty. Reyes did assist appellant, still there would be grave doubts as to his competence and independence as appellants counsel for purposes of the custodial investigation. The meaning of "competent counsel" and the standards therefor were explained in People v. Deniega as follows: The lawyer called to be present during such investigations should be as far as reasonably possible, the choice of the individual undergoing questioning. If the lawyer were one furnished in the accuseds behalf, it is important that he should be competent and independent, i.e., that he is willing to fully safeguard the constitutional rights of the accused, as distinguished from one who would be merely be giving a routine, peremptory and meaningless recital of the individuals constitutional rights. Ideally therefore, a lawyer engaged for an individual facing custodial investigation (if the latter could not afford one) "should be engaged by the accused (himself), or by the latters relative or person authorized by him to engage an attorney or by the court, upon proper petition of the accused or person authorized by the accused to file such petition." Lawyers engaged by the police, whatever testimonials are given as proof of their probity and supposed independence, are generally suspect, as in many areas, the relationship between lawyers and law enforcement authorities can be symbiotic. x x x The competent or independent lawyer so engaged should be present from the beginning to end, i.e., at all stages of the interview, counseling or advising caution reasonably at every turn of the investigation, and stopping the interrogation once in a while either to give advice to the accused that he may either continue, choose to remain silent or terminate the interview.

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The standards of "competent counsel" were not met in this case given the deficiencies of the evidence for the prosecution. Although Atty. Reyes signed the confession as appellants counsel and he himself notarized the statement, there is no evidence on how he assisted appellant. Furthermore, Atty. Reyes was not appellants counsel of choice but was picked out by the police officers allegedly through the barangay officials. Appellants failure to interpose any objection to having Atty. Reyes as his counsel cannot be taken as consent under the prevailing circumstances. As discussed earlier, appellant was not properly informed of his rights, including the right to a counsel preferably of his own choice. Strikingly, while it was made to appear in the alleged confession that appellant was informed of his right to a counsel of his own choice and that if he cannot afford the services of one, the police shall provide him with one, it was overlooked that it was not similarly made to appear in the same statement that appellant was advised that he had the option to reject the counsel provided for him by the police authorities. Confession is not voluntary. It is settled that a confession is presumed voluntary until the contrary is proved and the confessant bears the burden of proving the contrary. The trial court found that appellants bare denials failed to overcome this presumption. However, several factors constrain us to hold that the confession was not given under conditions that conduce to its admissibility. First, the confession contains facts and details which appear to have been supplied by the investigators themselves. The voluntariness of a confession may be inferred from its language such that if, upon its face, the confession exhibits no suspicious circumstances tending to cast doubt upon its integrity, it being replete with detailswhich could only be supplied by the accused reflecting spontaneity and coherence, it may be considered voluntary. Strangely, the confession is undated and it cannot be ascertained from it when appellant made the confession or affixed his thumbmark thereon. What emerges only is the bare fact that it was notarized by Atty. Reyes on 23 October 1995. One can only speculate as to the reason behind what seems to be a lack of forthrightness on the part of the police officers. Second, again appellant was not assisted by counsel. To reiterate, the purpose of providing counsel to a person under custodial investigation is to curb the police-state practice of extracting a confession that leads appellant to make selfincriminating statements. And in the event the accused desires to give a confession, it is the duty of his counsel to ensure that the accused understands the legal import of his act and that it is a product of his own free choice. It bears repeating that appellant was held in the police station overnight before he was allegedly taken to the house of Atty. Reyes. He was not informed of his rights and there is no evidence that he was assisted by counsel. Confession was not sufficiently corroborated. Courts are slow to accept extrajudicial confessions when they are subsequently disputed unless they are corroborated. There must be such corroboration so that when considered in connection with the confession, it will show the guilt of accused beyond a reasonable doubt. As a general rule, a confession must be corroborated by those to whom the witness who testified thereto refers as having been present at the time the confession was made or by any other evidence. The inconsistencies in the testimonies of the police officers as well as any lingering doubt as to the credibility of appellants statement could have been laid to rest by the testimonies of Atty. Reyes, of Abad, and of those allegedly present during the custodial investigation. However, they were not presented in court. Consequently, the non-production of these material witnesses raises a doubt which must be resolved in favor of appellant and the confession should be disregarded as evidence. Verily, we are left with the unconvincing testimony of two police officers against whose abuse of authority the Constitution protects the appellant. As their respective testimonies are sated with inconsistencies and hearsay evidence, we find the same insufficient bases to hold appellants extrajudicial confession admissible against him.

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

Appellant Jerry Rapeza y Francisco is hereby ACQUITTED for insufficiency of evidence leading to reasonable doubt. (Hani Mamukid) EUGENIO VS. PEOPLE 549 SCRA 433 (2008) Facts: Petitioner went to the house of private complainant Alfredo Mangali and introduced Mangali to Epifania Saquitan, Amalia Ablaza, and another individual. Petitioner persuaded Mangali to loan P100,000 to Saquitan with a parcel of land as security for the loan. Petitioner assured Mangali that the lot was covered by TCT No. 171602 issued in Saquitans name. With this assurance, Mangali agreed to extend the loan. When the loan lapsed, Mangali inquired from the Register of Deeds. Mangali discovered that TCT No. 171602 had been cancelled and is not registered with the Register of Deeds. Mangali filed a complaint with the NBI which arranged an entrapment operation in Mangalis house. Mangali expected to see petitioner that day as petitioner had asked for an additional loan. At the appointed time, petitioner arrived in Mangalis house. The NBI agents effected the arrest while petitioner was counting the money. The NBI agents brought petitioner and the other individuals arrested with her to the NBI office where petitioner gave a statement. Petitioner alleges that after she was arrested, she was neither informed of her constitutional right to counsel nor afforded her right to a phone call. Issue: Whether investigation. irregularities attended petitioners arrest and

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Ruling: Yes. Custodial investigation involves any questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. RA 7438 has extended this constitutional guarantee to situations in which an individual has not been formally arrested but has merely been "invited" for questioning. Specifically, Sec. 2 of RA 7438 provides that "custodial investigation shall include the practice of issuing an invitation to a person who is investigated in connection with an offense he is suspected to have committed x x x." It is evident that when petitioner was brought by respondent before the NBI-NCR to be investigated, she was already under custodial investigation and the constitutional guarantee for her rights under the Miranda Rule has set in. Since she did not have a lawyer then, she was provided with one in the person of Atty. Uy, which fact is undisputed. However, it can be gleaned from the amicable agreement that the custodial investigation on the inquiry or investigation for the crime was either aborted or did not push through as the parties, petitioner, and respondent agreed to amicably settle. Thus, the amicable settlement with a waiver of right to counsel appended was executed with both parties affixing their signatures on it in the presence of Atty. Uy and NBI agent Atty. Ely Tolentino. Petitioner's contention that her constitutional rights were breached falls flat for the following reasons: First, it is undisputed that she was provided with counsel, in the person of Atty. Uy. Second, petitioner never raised any objection against Atty. Gordon Uy's appointment during the time she was in the NBI and thereafter, when she signed the amicable settlement. Verily, in the instant case, petitioner is deemed to have engaged Atty. Uy when she conferred with him and thereafter signed the amicable settlement with waiver of right to counsel in his presence. Third, when petitioner engaged Atty. Uy as her lawyer, she undoubtedly executed the amicable settlement. Verily, she was provided with an independent counsel and such "right to counsel is intended to preclude the slightest coercion as would lead the accused to admit something false. Fourth, even granting arguendo that the amicable settlement is in the nature of an admission, the document petitioner signed would still be admissible since none of her constitutional rights were violated. PEOPLE VS. CONCEPCION 556 SCRA 421 (2008) Facts: A confidential informant reported to SPO1 Buenaventura Lopez at the that an alias Totoy was engaged in selling shabu. SPO1 Lopez instructed the confidential agent to set a drug deal with alias Totoy. A buy-bust operation was planned and a team formed. The team, together with the confidential informant, proceeded to Barangay Guyong. At around 2:00 a.m. a van arrived with appellants and accused Dela Cruz on board. Dela Cruz was driving, while appellant Alfredo Concepcion, a.k.a. Totoy, was seated beside him and appellant Henry was at the back. The confidential informant introduced PO2 Sistemio to Totoy who asked the latter how much shabu he would buy. PO2 Sistemio replied he would buy two plastic packs of shabu equivalent to ten grams. After receiving the two plastic packs, PO2 Sistemio lit a cigarette, the pre-arranged signal for the other members of the buy-bust team to approach and arrest the culprits. Upon seeing PO2 Sistemio light a cigarette, the other team members blocked the vehicle. Appellants and accused Dela Cruz were apprehended and brought to the PDEA office. The two plastic sachets given by appellant Alfredo Concepcion to PO2 Sistemio, and the other one recovered in a glove compartment, were marked. After a qualitative examination was conducted on the specimens, Police Inspector Nellson C. Sta. Maria, Forensic Chemical Officer, concluded that said specimens contained methylamphetamine hydrochloride (shabu), a dangerous drug. Issue: Whether the alleged buy-bust operation was satisfactorily proven. Ruling: After going over the evidence on record, we find that there, indeed, was a buy-bust operation involving appellants. The prosecutions failure to submit in evidence the required physical inventory of the seized drugs and the photograph pursuant to Section 21, Article II of RA No. 9165 will not exonerate appellants. Non-compliance with said section is not fatal. What is of utmost importance is the preservation of the integrity and the evidentiary value of the seized items. Appellants contention that they were not apprised of their constitutional rights upon their arrest cannot lead to their acquittal. The arresting officers alleged failure to inform them of their Miranda rights or the nature of their arrest should have been raised before arraignment. It is too late in the day for appellants to raise these

Ruling: Yes. Respondent does not contest petitioners claim on the alleged irregularities which attended her arrest. Nevertheless, such irregularities do not work to nullify petitioners conviction as this Court is neither the proper forum, nor this appeal the correct remedy, to raise this issue. Any irregularity attending the arrest of an accused should be raised in a motion to quash at any time before entering her plea. Petitioners failure to timely raise this objection amounted to a waiver of such irregularity and resulted in her concomitant submission to the trial courts jurisdiction over her person. Indeed, not only did petitioner submit to such jurisdiction, she actively invoked it through her participation during the trial. As for the failure of the NBI agents to inform petitioner of her right to counsel during custodial investigation, this right attains significance only if the person under investigation makes a confession in writing without aid of counsel counsel which is then sought to be admitted against the accused during the trial. In such case, the tainted confession obtained in violation of Section 12(1), Article III of the Constitution is inadmissible in evidence against the accused. Here, petitioner merely alleges that following her arrest, she gave a statement to the NBI agents. The records do not contain a copy of this statement thus we have no way of knowing whether such statement amounts to a confession under Section 12(3) in relation to Section 12(1), Article III of the Constitution. AQUINO VS. PAISTE 555 SCRA 255 (2008) Facts: Petitioner Juanita Aquino and Elizabeth Garganta went to the house of respondent Teresita Paiste. Petitioner started to convince respondent to buy a gold bar owned by a certain Arnold. Petitioner and Garganta went back to the house of respondent the following day. They met Arnold who showed them the gold bar. Arnold informed her that it was worth PhP 60,000. On the next day, the they returned, this time they told respondent that the price was reduced to PhP 10,000. She agreed to go with them to meet Arnold. Arnold pretended to refuse the PhP 10,000 offer and insisted on PhP 50,000. On petitioner's insistence, the two went to and bought the gold bar for PhP 50,000. On Respondent had the gold bar tested and she was informed that it was fake. Respondent then proceeded to petitioner's house to inform the latter that the gold bar was fake. Respondent brought petitioner to the NBI-NCR in the presence of a certain Atty. Tolentino where petitioner amicably promised respondent they would locate Garganta, and the document they both signed would be disregarded should they locate Garganta. Petitioner ascribes error to the CA when it gave due weight and consideration to the amicable settlement with waiver of right to counsel that she signed in the NBI during the custodial investigation. Issue: Whether the amicable settlement executed in the NBI is admissible as evidence.

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

alleged illegalities after a valid information has been filed, the accused arraigned and the trial commenced.

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Petitioner's contention that Article III, Section 12 of the 1987 Constitution should be given retroactive effect for being favorable to him as an accused, cannot be sustained. While Article 22 of the Revised Penal Code provides that "(p)enal laws shall have a retroactive effect insofar as they favor the person guilty of a felony who is not a habitual criminal," what is being construed here is a constitutional provision specifically contained in the Bill of Rights which is obviously not a penal statute. SANTOS VS. SANDIGANBAYAN Facts: Estacios and Valentino were suspected of being involved in a syndicate doing anomalous bank transactions on different occassions. The BPI and the Central Bank jointly referred the matter for investigation to the NBI which assigned the case to Head Agent Salvador Ranin of the Special Investigation Division. Atty. Agapito Fajardo, the banks Chief Security Officer, and the BPI Vice-President and Comptroller brought Manuel Valentino to the NBI. The following day, Agent Ranin took Valentinos statement. Valentino waived his rights to remain silent and to counsel. He signed the waiver on the first page of his statement. On March 22, 1982, Agent Ranin took Valentinos supplementary sworn statement. The same NBI agent took Jesus Estacios statement on February 17, 1982 and supplementary statement on March 22, 1982. Like Valentino, Estacio waived his right to counsel. In their respective statements, Valentino and Estacio admitted their participation in the commission of the crime, narrated how they carried out the plan to defraud the banks, and identified those who participated in the criminal acts . Issue: Whether the extrajudicial confessions of petitioner Estacio and Valentino are inadmissible in evidence as their right to counsel was violated when said confessions were executed. Ruling: Relevant to petitioners contention on the admissibility of the extrajudicial confessions of petitioner Estacio and Valentino is Article IV, Section 20 of the 1973 Constitution providing for the rights of an accused during custodial investigation. No person shall be compelled to be a witness against himself. Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such rights. No force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him. Any confession obtained in violation of this section shall be inadmissible in evidence. On the other hand, the first paragraph of Article III, Section 12 of the 1987 Constitution states: (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. A comparison of these provisions would readily show that the 1973 Constitution does not specify the right against uncounselled waiver of the right to counsel, which is found in paragraph 1, Section 12, Article III of the 1987 Constitution. However, the latter constitutional provision cannot be applied to extrajudicial confessions made prior to its date of effectivity. `x x x. The doctrine that an uncounselled waiver of the right to counsel is not to be given legal effect was initially a judge-made one and was first announced on 26 April 1983 in Morales vs. Enrile and reiterated on 20 March 1985 in People vs. Galit. x x x. While the Morales-Galit doctrine eventually became part of Section 12 (1) of the 1987 Constitution, that doctrine affords no comfort to appellant Luvendino for the requirements and restrictions outlined in Morales and Galit have no retroactive effect and do not reach waivers made prior to 26 April 1983 the date of promulgation of Morales. Clearly then, the Morales-Galit rulings are inapplicable in these cases as the extrajudicial confessions in question here, were taken on February 13, February 17 and March 22, 1982, long before the date of promulgation of the Morales Decision on April 26, 1983. Prior to this date, the guidelines requiring that waiver of the right to counsel by an accused can be properly made only with the presence and assistance of counsel, had yet to be formulated and pronounced by this Court.

1.

Miranda rule not applicable to confessions executed before Jan. 17, 1973
PEOPLE VS. RIBADAJO, 143 SCRA 637 (1986)

Facts: On November 18, 1971, prisoners from brigade 3-C succeeded in opening the door of their dormitory and attacked the inmates from dormitory 3-a. Records further show that while the victim Bernardo Cutamora was getting his ration he was sandwiched by the accused who rushed towards the door and stabbed the victim simultaneously whereby the latter sustained multiple stab wounds on the different parts of his body which wounds caused his death. In an investigation conducted by the Investigation Section of the New Bilibid Prisons on November 20, 1971, all the accused executed statements admitting their participation in the slaying of Bernardo Cutamora. Consequently, an Information for Murder was filed. Upon arraignment on July 5, 1973, accused Tobias Ribadajo, Romeo Corpuz, Loreto Rivera and Rodolfo Torres, all with the assistance of counsel de officio, pleaded Guilty. At the presentation of evidence for the defense however, accused Tobias Ribadajo, Romeo Corpuz, and Rodolfo Torres withdrew their pleas of Guilty. Appellants submit that their extrajudicial confessions were extracted by force.On their face, however, the individual confessions do not show any suspicious circumstance casting doubt on their integrity. On the contrary, they are replete with details only appellants could have supplied. Issue: Whether accused is entitled to be informed of their right to silence and to counsel during custodial investigation. Ruling: As to appellants' claim that they have not been informed of their right to silence and to counsel during custodial investigation, suffice it to state that the proscription against the admissibility of confessions obtained from an accused during the period of custodial interrogation, in violation of procedural safeguards, applies to confessions obtained after the effectivity of the 1973 Constitution. No law gives the accused the right to be so informed before the enactment of the 1973 Constitution, even if presented after January 17, 1973. That Constitutional guaranty relative to confessions obtained during custodial investigation does not have any retroactive effect. FILOTEO VS. SANDIGANBAYAN 263 SCRA 222 (1996) Facts: Petitioner Jose D. Filoteo, Jr. was the suspected mastermind of the armed hijacking of a postal delivery van. Along with his co-accused petitioner Filoteo was charged. On separate dates, accused Filoteo, Mateo, Saguindel, Relator and Miravalles, assisted by their respective counsel, pleaded not guilty. Petitioner contends that respondent Court erred in admitting his extrajudicial confession notwithstanding uncontradicted testimony and documentary proof that he was made to sign the same through torture, maltreatment, physical compulsion, threats and intimidation and without the presence and assistance of counsel. Issue: Are the written statements, particularly the extra-judicial confession executed by the accused without the presence of his lawyer, admissible in evidence against him? Ruling: Yes. In the landmark case of Magtoto vs. Manguera, the Court categorically held that provisions of the 1973 Constitution must be prospectively applied. This Court said: We hold that this specific portion of this constitutional mandate has and should be given a prospective and not a retrospective effect. Consequently, a confession obtained from a person under investigation for the commission of an offense, who has not been informed of his right (to silence and) to counsel, is inadmissible in evidence if the same had been obtained after the effectivity of the New Constitution on January 17, 1973. Conversely, such confession is admissible in evidence against the accused, if the same had been obtained before the effectivity of the New Constitution, even if presented after January 17, 1973, and even if he had not been informed of his right to counsel, since no law gave the accused the right to be so informed before that date. Pursuant to the above doctrine, petitioner may not claim the benefits of the Morales and Galit rulings because he executed his extrajudicial confession and his waiver to the right to counsel on May 30, 1982, or before April 26, 1983.

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PEOPLE vs. ARONDAIN 366 SCRA 98 (2001) FACTS: After the robbing and killing of the taxi driver, accused was arrested by the police not far from the crime scene. The gun used in the killing was confiscated from him. When asked by the arresting officers why he shot the victim, accused answered that the latter resisted his demand for money. He added that after shooting the driver, he panicked and immediately scampered away, leaving the money bills scattered on the floor of the taxi cab. ISSUE: Is his statement admissible in evidence? HELD: No. The statement made by the accused admitting the crime cannot be admitted even as part of the res gestae. It must be stressed that said statement was obtained in violation of his constitutional rights. Said confession was given after he was arrested and without the assistance of counsel. He was not even informed of his right to remain silent or to counsel. From the time he was arrested and deprived of his freedom, all the questions propounded on him by the police for the purpose of eliciting admissions, confessions or any information came within the ambit of custodial investigation. Failing to observe the constitutional mandate the confession cannot be admitted as evidence against him. PEOPLE vs. TABOGA 376 SCRA 505 (2002) FACTS: Accused was charged with Robbery with Homicide, as well as Arson, for robbing and killing an old woman and burning her house. After he was arrested, he was interviewed by a radio reporter inside the investigation room of the police station were policemen were present. The radio announcer informed him at the outset that he was a reporter who will be interviewing him to get his side of the incident. During the interview, he admitted authorship of the crimes. ISSUE: Is his confession admissible? HELD: Yes. The confession made by the accused did not form part of custodial investigation. It was not given to police officers but to a media man in an apparent to elicit sympathy. There is nothing in the record to show that the radio announcer colluded with the police authorities to elicit inculpatory evidence against accused. Neither is there anything on record which even remotely suggests that the radio announcer was instructed by the police to extract information form him on the details of the crimes. Thus, assistance of counsel is not required. PEOPLE vs. BALOLOY 381 SCRA 31 (2002) FACTS: At the wake of an 11-year old child who was raped before she was killed, the barangay captain brought a rope which was found near the victims body. She asked the people present about the rope and accused admitted it was his. The barangay captain brought accused away from the others and asked him why the rope was at the place where the dead body was recovered and accused admitted killing and raping the victim After accused confessed and the confession was reduced into writing without assistance of counsel, he was brought before the Municipal Trial Court Judge to swear to his affidavit. Without a lawyer to assist him, the judge asked him if the charge against him was true. Accused answered that he was demonized and he narrated how he raped and killed the victim. ISSUE: Is his oral confession admissible in evidence? HELD: Yes. The constitutional provision on custodial investigation does not apply to a spontaneous statement, not elicited through questioning by authorities but given in an ordinary manner whereby the suspect orally admits having committed the crime. Neither can it apply to confessions made by a suspect before he is placed under custodial investigation. What the Constitution bars is the compulsory disclosure of incriminating facts or confessions. In this case, when accused admitted ownership of the black rope and was asked by the barangay captain to tell everything, he voluntarily narrated that he raped the child and throw her body into a ravine. The narration is a spontaneous answer freely and voluntarily given before accused was arrested or placed in custody. It is settled that at the moment the accused voluntarily surrenders to, or is arrested by, the police officers, the custodial investigation is deemed to have started. He could not thenceforth be asked about his complicity in the offense without the assistance of counsel. The

2. Not applicable to res gestae statements/spontaneous statements

PEOPLE VS. DANO 339 SCRA 515 (2000) Facts: Prosecution witness Wilfredo Tapian was resting in when Teresita Dano arrived and asked for his help. Teresita told Wilfredo that her husband, Emeterio, attacked his brother Alberto, herein appellant, in the latters house. Wilfredo immediately rushed to appellants house. Upon arriving, Wilfredo saw the victim pacing back and forth in appellants front yard. The victim, armed with a scythe was shouting at appellant, who was looking out of the window, to come down so they could fight to the death. Wilfredo tried to pacify the victim who kept repeating his challenge while striking his scythe on the ground, but to no avail. Appellant also advised his younger brother to go home, but the latter refused to listen. Seeing that his efforts to stop the fraternal quarrel were of no use and fearful of being hit in the affray, Wilfredo left for home. Between the hours of six and seven oclock that same evening, Demosthenes Peralta, the barangay captain of Tiguian, was informed by Wilfredo and a certain Fernando Teves that the Dano brothers were quarreling. Demosthenes went to appellants home to investigate. On his way, he met appellant. The latter told Peralta he had killed Emeterio and voluntarily surrendered to him. Demosthenes left appellant in Wilfredos house and proceeded to appellants residence where he saw the bloody corpse of the victim sprawled in the yard, near the stairs. Demosthenes fetched appellant from Wilfredos house and took him to the police station. When interrogated by the police, appellant, without assistance of counsel, admitted he killed his brother. Issue: Did the trial court err in admitting the extrajudicial confession of the accused? Ruling: Appellant contends that his constitutional and statutory right to counsel during custodial investigation was violated when the police took his statements without a lawyer to assist him. He further argues that the trial court should have declared his statements before the police inadmissible when they were objected to during the trial. Appellant admitted killing the victim before the barangay captain, who is neither a police officer nor a law enforcement agent. Such admission, even if done without the assistance of a lawyer, is not in violation of appellants constitutional rights. The constitutional requirements on custodial investigation do not apply to spontaneous statements made in a voluntary manner whereby appellant orally admitted authorship of the crime. PEOPLE VS. ENDINO 352 SCRA 307 (2001) Facts: An emboldened Gerry Galgarin, uncle of accused Edward Endino, suddenly and without warning lunged at Dennis and stabbed him repeatedly on the chest. Dennis dashed towards the nearby Midtown Sales but his escape was foiled when from out of nowhere Edward Endino appeared and fired at Dennis. The two (2) assailants fled in the direction of the airport. Gerry Galgarin was arrested through the combined efforts of the Antipolo and Palawan police forces. On their way to the airport, they stopped at the ABS-CBN television station where accused Galgarin was interviewed by reporters. Video footages of the interview were taken showing Galgarin admitting his guilt while pointing to his nephew Edward Endino as the gunman. Subsequently, accused-appellant disowned the confession which he made over TV Patrol and claimed that it was induced by the threats of the arresting police officers. Issue: Whether the confession is admissible. Ruling: We find such admission proper. The interview was recorded on video and it showed accused-appellant unburdening his guilt willingly, openly and publicly in the presence of newsmen. Such confession does not form part of custodial investigation as it was not given to police officers but to media men in an attempt to elicit sympathy and forgiveness from the public. However, because of the inherent danger in the use of television as a medium for admitting one's guilt, it is prudent that trial courts are reminded that extreme caution must be taken in further admitting similar confessions. (Lendl Montes)

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

claim of the judge that no complaint has yet been filed and that neither was he conducting a preliminary investigation deserves scant consideration. The fact remains that accused was already under the custody of police authorities. However, while the extra-judicial confession before the judge is inadmissible in evidence, it could be treated as a verbal admission of the accused, which could be established through the testimonies of the persons who heard it.

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FACTS: Accused was an employee of the National Power Corporation. He was convicted of malversation of public funds. While confined in the Philippine Heart Center, he was investigated by NPCs audit team. The stenographic notes of the investigation and his sworn statement given without counsel during the proceedings became the basis of his conviction. ISSUE: Are they admissible? HELD: Yes. His statement was taken during the administrative investigation of NPCs audit team and before he was taken into custody. As such, the inquest was still a general inquiry into an unsolved offense at the time and there was, as yet, no specific suspect. Much less can he claim that he was in police custody because he was confined at the time at the Philippine Heart Center and he gave this statement to NPC personnel, not to police authorities. Accused can hardly claim that, under the prevailing circumstances at the time, whatever degree of compulsion may have existed went beyond the borders of the unobjectionable where impermissible levels of duress would force him into making false and incriminating declarations against his interest. While he may have been persuaded into doing so, he cannot feign that he was intimidated in such a way as to bring his statements within the ambit of the exclusionary constitutional provision. ASTUDILLO vs. PEOPLE 509 SCRA 509 (2006) FACTS: Written statements of employees confessing to the crime of theft made in the course of investigations conducted by their employer were made evidence in criminal cases subsequently filed against them. ISSUE: Are they admissible? HELD: Yes. The rights under Art. III, Sec. 12 of the 1987 Constitution exist only in custodial interrogations, or in-custody interrogation of accused persons. Custodial interrogation is meant questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. The employee may, of course, refuse to submit any statement at the investigation, that is his privilege. But if he should opt to do so, in his defense to the accusation against him, it would be absurd to reject his statements, whether at the administrative investigation, or at a subsequent criminal action brought against him, because he had not been accorded, prior to his making and presenting them, his Miranda rights (to silence and to counsel and to be informed thereof, etc. which, to repeat, are relevant in custodial investigations. (Zen Nandu)

3.

Not Applicable to Statements Administrative Investigations

SEBASTIAN vs. GARCHITORENA 343 SCRA 463 (2000)

given

in

FACTS: Petitioners were postal employees charged with Malversation of Public Funds. During a fact-finding investigation conducted relative to missing postage stamps they executed sworn statements without the assistance of counsel and without being warned of their rights. Their written statements were offered by the prosecution in evidence during the trial in the criminal case. ISSUE: Is there a violation of the right to counsel? HELD: No. The rights under Sec. 12 apply only to custodial investigation or questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. The fact finding relative to the missing stamps conducted by the Chief Postal Service Officer is not a custodial investigation but a mere administrative investigation. While an administrative investigation may be akin to a criminal proceeding, irrespective of the nature of the charges and of the respondents capacity to represent himself, no duty rests on the investigator to provide the person being investigated with counsel. REMOLINA vs. CSC 362 SCRA 304 (2001) FACTS: For having secured for his wife a fake Report of Rating with a passing mark in the teachers board examination, petitioner was dismissed from government service for dishonesty. Among the evidence against him was his written statement made during the investigation by the Civil Service Commission admitting his guilt. No counsel assisted him nor was he advised of rights under the Constitution when he signed the statement. ISSUE: Is it admissible? HELD: Yes. While investigations conducted by an administrative body may at times be akin to a criminal proceedings, the fact remains that under existing laws, a party in an administrative inquiry may or may not be assisted by counsel, irrespective of the nature of the charges or the respondents capacity to represent himself. Under the Civil Service Act, a respondent has the option of engaging the services of counsel or not. The right to counsel is not always imperative in an administrative investigation because such inquiries are conducted merely to determine whether there are facts that merit disciplinary measure against erring public officials. In this case, respondent was not accused of any crime in the investigation conducted by the CSC field office. It was conducted for the purpose of ascertaining whether he should be administratively charged. PEOPLE vs. SALONGA 359 SCRA 310 (2001) FACTS: Accused was an Acting Assistant Cashier of Metrobank. During a spot audit conducted by the Department of Internal Affairs of the bank, he admitted having issued a cashiers check without any legitimate transaction and that he benefited P8,500.00 from the amount of the check. His admissions were reduced into writing and offered in evidence by the prosecution. When he made the admissions, however, there was no lawyer assisting him. ISSUE: Is it admissible? HELD: Yes. The constitutional right to counsel may be invoked only by a person under custodial investigation. Custodial investigation is the stage where the police investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect taken into custody by the police who carry out an interrogation to elicit incriminating statements. In this case, the bank auditor who questioned accused was not a police officer but a private person. He was not under custodial investigation so that the legal formalities required by the fundamental la do not apply. PEOPLE vs. TIN LAN UY 475 SCRA 248 (2005)

4.

POLICE LINE-UPS

G.R. No. 102786 August 14, 1998 ALEJANDRO B. DE LA TORRE, petitioner, vs.COURT OF APPEALS facts : In the afternoon of April 18, 1989, Alexander Manalo, an electrical engineer of MERALCO assigned to inspect six electric meters installed in the premises of the Cathay Pacific Steel and Smelting Corporation (CAPASSCO), discovered that the said electric meters were missing. He reported the loss to the MERALCO office in Ortigas Avenue, Pasig City. On April 20,1989, Manalo and Felino Olegario, also of MERALCO, gave statements to the Northern Police District at Camp Karingal, Sikatuna Village, Quezon City regarding the loss of the electric meters. They suspected that CAPASSCO employees must have damaged the electric meters while tampering with them and that to conceal the attempt, the employees must have removed the electric meters. They expressed suspicion that MERALCO personnel were involved. Patrolman Edgar Enopia, who was assigned to the case, proceeded to the scene of the crime and inquired from people he saw there if they had seen the electric meters being taken down from the post near the gate of CAPASSCO. According to Enopia, one of those he asked, Danilo Garcia, said he had seen at about 10:00 p.m. on April 11, 1989 four crewmembers in a MERALCO service truck, with the number 522 painted on its side, removing the electric meters. Acting on this lead, Enopia asked MERALCO for the identities of the men, one of whom turned out to be petitioner de la Torre. It appears that MERALCO service truck number 522 had specific crewmembers assigned to it. On July 4, 1989, the crewmembers were taken to the NPD headquarters for investigation. They were included in a line-up of

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

eight (8) persons. Garcia pointed to petitioner de la Torre as the leader of the group which took down the electric meters from the CAPASSCO premises, but he did not recognize the three (3) other crewmembers. Petitioner de la Torre was charged with Qualified Theft but alleged violation of his constitutional right that "any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel." Petitioner de la Torre claims he was not informed of his right to remain silent and to have the assistance of counsel during the investigation conducted on July 4, 1989 at the NPD headquarters, where the crewmembers of MERALCO service truck number 522 were presented in a police line-up. He further invokes the exclusionary rule in par. 3 of the same 12 that "any confession or admission obtained in violation of [this rule] shall be inadmissible in evidence against him." Issue: w/n dela torres right under custodial investigation was violated Held: In Gamboa v. Cruz, this Court ruled that "no custodial investigation shall be conducted unless it be in the presence of counsel, engaged by the person arrested, or by any person in his behalf, or appointed by the court upon petition either of the detainee himself, or by anyone in his behalf, and that, while the right may be waived, the waiver shall not be valid unless made in writing and in the presence of counsel." However, this applies only from the moment the investigating officer begins to ask questions for the purpose of eliciting admissions, confessions, or any information from the accused. A police line-up is not considered part of any custodial inquest because it is conducted before that stage is reached. In the instant case, petitioner de la Torre, together with the other crewmembers of MERALCO truck number 522, was merely included in a line-up of eight (8) persons from which he was picked out by Garcia as the leader of the group which had removed the electric meters from the CAPASSCO premises. Until then, the police investigation did not focus on petitioner. Indeed, no questions were put to him. Rather, the questions were directed to witnesses of the complainant. There is, therefore, no basis for petitioner's allegations that his rights as a suspect in a custodial interrogation were violated. G.R. No. 129970 April 5, 2000 PEOPLE OF THE PHILIPPINES, vs.EDUARDO PAVILLARE Facts: The private complainant, an Indian national named Sukhjinder Singh testified in court that at about noon of February 12, 1996 while he was on his way back to his motorcycle parked at the corner of Scout Reyes and Roces Avenue, three men blocked his way. Singh testified that the accused-appellant and his companions beat him up and demanded one hundred thousand pesos (P100,000.00) for his release but Singh told him he only had five thousand pesos (P5,000.00) with him so the kidnappers further extorted money from the Singhs cousin in an agreed amount of P25,000. The ransom was then given and Singh was released. SPO1 Eduardo Frias testified for the prosecution that he was the police officer who took the sworn statement of the private complainant on February 14, 1996 pertaining to the February 12, 1996 incident. 5 When the accused-appellant was apprehended in connection with another case involving the kidnapping of another Indian national the private complainant herein again showed up at the police station on March 11, 1996 and identified the accused-appellant as one of his kidnappers. Another sworn statement was executed by the private complainant after he identified the accused-appellant at the police station in a police line up and was later tried for kidnapping for ransom. The accused-appellant's defense that the identification made by the private complainant in the police line-up is inadmissible because the appellant stood at the line-up without the assistance of counsel is without merit. Issue: w/n the accused rights under custodial investigation were violated Held: No. Sec. 12 (1) Art III of the Constitution states that "Any person under investigation for the commission of an offense shall have the right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel." Thus the prohibition for custodial investigation conducted without the assistance of counsel. Any evidence obtained in violation of the constitutional mandate is inadmissible in evidence. 10 The prohibition however, does not extend to a person in a police line-up because that stage of an investigation is

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not yet a part of custodial investigation. 11 It has been repeatedly held that custodial investigation commences when a person is taken into custody and is singled out as a suspect in the commission of the crime under investigation and the police officers begin to ask questions on the suspect's participation therein and which tend to elicit an admission. 12 The stage of an investigation wherein a person is asked to stand in a police line-up has been held to be outside the mantle of protection of the right to counsel because it involves a general inquiry into an unsolved crime and is purely investigatory in nature. 13 It has also been held that an uncounseled identification at the police line-up does not preclude the admissibility of an in-court identification. 14 The identification made by the private complainant in the police line-up pointing to Pavillare as one of his abductors is admissible in evidence although the accused-appellant was not assisted by counsel. TESTS OF VALIDITY OF WAIVER OF MIRANDA RIGHTS; To be informed G.R. No. 146277 June 20, 2002 PEOPLE OF THE PHILIPPINES, vs.ALBERT CASIMIRO Y SERILLO, FACTS Accused Casimiro was arrested in a buy bust operation for illegal possession of prohibited drugs. Accused-appellant was then required to sign a receipt of such Marijuana without the assistance of counsel before the police turned it over to the custodian. 10 The dried leaves were then examined by the PNP Crime Laboratory Service, Cordillera Administrative Region.11 Police officer and forensic chemist Alma Margarita Villaseor found the specimen to weigh 904.6 grams. The chemistry report dated August 20, 1999, signed by Villaseor, stated that the leaves were positive for marijuana. Defense alleged that the receipt of property seized from accusedappellant is unconstitutional and should not be admissible in evidence as It was signed without counsel. ISSUE: w/n the accused right under Art. III,sec.12 (1) was violated HELD: yes. The receipt states that a brick of dried marijuana leaves was delivered by the suspect to a poseur buyer and signed by accusedappellant Albert Casimiro as "suspect/ owner." In effect, accusedappellant admitted that he delivered a prohibited drug to another, which is an offense under the law. Having been made without the assistance of counsel, it cannot be accepted as proof that marijuana was seized from him. It is inadmissible in evidence. In People v. Obrero, this Court held that an uncounseled statement is presumed by the Constitution to be psychologically coerced. Swept into an unfamiliar environment and surrounded by intimidating figures typical of the atmosphere of a police interrogation, the suspect needs the guiding hand of counsel. PO2 Supa testified that he informed accused-appellant of his Miranda rights while he was being arrested outside the grocery: Q: What happened after you brought out your comb and started combing your hair? A: Sir, my two companions went to our place and effected the arrest of the suspect. Q: What else happened after the two members of the team rushed to your place? A: We apprised the suspect of his constitutional rights and brought him to our Narcotics office. Q: How did you apprise the suspect of his rights as you said? A: Sir, we informed him of his constitutional rights by saying, "You are under arrest for violation of 6425. You have the right to remain silent. You have the rights to call for a lawyer of your own choice. Anything you say may be used as evidence in favor or against you." And we brought him to the office, sir. Q: What happened after that? A: Sir, we investigated him and the suspect identified himself as Albert Casimiro.27 The warning was incomplete. It did not include a statement that, if accused-appellant could not afford counsel, one would be assigned to him. The warning was perfunctory, made without any effort to find out if he understood it. It was merely ceremonial and inadequate in transmitting meaningful information to the suspect.28 We cannot say that, in signing the receipt without a lawyer, accused-appellant acted willingly, intelligently, and freely. What is more, the police investigators did not pause long enough and wait for accusedappellant to say whether he was willing to answer their questions

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even without the assistance of counsel or whether he was waiving his right to remain silent at all. G.R. No. 147201 January 15, 2004 PEOPLE OF THE PHILIPPINES, appellee, vs.BENJAMIN SAYABOC FACTS: Accused Sayaboc was charged together with other suspects for conspiring to kill Joseph Galam. Sayaboc was apprehended and brought to the Provincial Command Headquarters in Bayombong, Nueva Vizcaya. On the afternoon of that day, SPO4 Cagungao was called to the Provincial Command Headquarters in Bayombong, Nueva Vizcaya, to take the statement of Sayaboc. When he arrived at the headquarters he saw Sayaboc being interviewed by reporters inside the investigation room. He then brought Sayaboc to the inner part of the room. Before taking the statement of Sayaboc, he advised the latter of his constitutional rights. Then Sayaboc told him that he wanted to have a counsel of his own choice. But since Sayaboc could not name one, Cagungao asked the police officers to get a lawyer. Half an hour later, the police officers brought Atty. Rodolfo Cornejo of the PAO, who then conferred with Sayaboc for a while. After Cagungao heard Sayaboc say, "okay," he continued the investigation, during which Atty. Cornejo remained silent the entire time. However, Cagungao would stop questioning Sayaboc whenever Atty. Cornejo would leave to go to the comfort room.11 That night Sayaboc executed an extrajudicial confession12 in Ilocano dialect. He therein confessed to killing Joseph Galam at the behest of Marlon Buenviaje for the sum of P100,000. He likewise implicated Miguel Buenviaje and Patricio Escorpiso. The confession was also signed by Atty. Cornejo and attested to by one Fiscal Melvin Tiongson. But at the hearing of the case, sayaboc denied such confession. Defense then move for the exclusion of the extrajudicial confession as it is violative of the constitutional right of the accused. ISSUE :w/n the accused executed a valid confession. HELD: No.the extrajudicisl confession is inadmissible. In this case, contrary to SPO4 Cagungaos claim that he conferred with Sayaboc for half an hour informing him about his constitutional rights, the extrajudicial confession provides only the following: PRELIMINARY: I would like to inform you Mr. Sayaboc that questions will be asked to you regarding an incident last December 2, 1994 at the Rooftop, Brgy. Quezon, Solano, Nueva Vizcaya, in connection with the shooting of Joseph Galam, owner of the said Disco House as a result of his death. Before questions will be asked [of] you I would like to inform you about your ri[g]hts under the new Constitution of the Philippines, as follows: That you have the right to remain silent or refuse to answer the questions which you think will incriminate you; That you have the right to seek the services of a counsel of your own choice or if not, this office will provide you a lawyer if you wish. QUESTIONS: After informing you all your constitutional rights, are you willing to give your true statement regarding the death of Joseph Galam? ANSWER: Yes, sir. QUESTIONS: Do you want to get a lawyer to assist in this investigation? ANSWER: Yes, sir. I want to seek the assistance of Atty. Rodolfo Cornejo. QUESTIONS: Atty. Rodolfo Cornejo is here now, do you want him to assist you in this investigation? ANSWER: Yes, sir. Apart from the absence of an express waiver of his rights in the confession, the confession contains the passing of information of the kind held to be in violation of the right to be informed under Section 12, Article III of the Constitution. In People v. Jara, the Court explained: The stereotyped "advice" appearing in practically all extrajudicial confessions which are later repudiated has assumed the nature of a "legal form" or model. Police investigators either automatically type it together with the curt "Opo" as the answer or ask the accused to sign it or even copy it in their handwriting. Its tired, punctilious, fixed, and artificially stately style does not create an impression of voluntariness or even understanding on the part of the accused. The showing of a spontaneous, free, and unconstrained giving up of a right is missing. The right to be informed requires "the transmission of meaningful information rather than just the ceremonial and perfunctory recitation of an abstract constitutional principle."27 It should allow the suspect to consider the effects and consequences of any waiver he might make of these rights. We likewise rule that Sayaboc was not afforded his constitutional right to a competent counsel. While we are unable to rule on the unsubstantiated claim that Atty. Cornejo was partial to the police, still, the facts show through the testimonies of Sayaboc and prosecution witness SPO4 Cagungao that Atty. Cornejo remained

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silent throughout the duration of the custodial investigation. What is lacking is a showing, to the satisfaction of this Court, of a faithful attempt at each stage of the investigation to make Sayaboc aware of the consequences of his actions. G.R. No. 133685-86 May 20, 2004 PEOPLE OF THE PHILIPPINES vs.AMADO BAGNATE FACTS: Accused Bagnate was charged for the death of both victims. For which the accused was apprehended and was turned over to SPO2 Junwel Ambion for custodial investigation. Without asking the name of appellant, SPO2 Ambion informed him in the Bicol dialect of his right to remain silent, to be assisted by counsel, that whatever he says may be used against or in his favor, and that he cannot be tortured or molested. When appellant told SPO2 Ambion that he is willing to confess, SPO2 Ambion again informed appellant of his rights, and asked him further if he wants to be assisted by counsel but appellant said that his counsel was in Manila. SPO2 Ambion offered the services of Atty. Paterno Brotamonte, which appellant accepted. SPO2 Ambion then left to fetch Atty. Brotamonte whose office was located several meters away from the police station. However, Atty. Brotamonte told SPO2 Ambion that he will just follow as he was having his office blessing at that time. After some time, Atty. Brotamonte arrived at the police station. Before proceeding with the investigation, Atty. Brotamonte asked the policemen to leave the investigation room and conferred with appellant. He introduced himself to appellant and informed him of his rights. He also asked and examined appellant to see if he was physically harmed by the policemen and found none although Atty. Brotamonte noticed that appellants left hand was handcuffed to the table. Appellant told Atty. Brotamonte that he is willing to give a statement. The next day, August 8, 1997, appellant was brought before Judge Arsenio Base, Jr. of the Municipal Trial Court of Tabaco, Albay. Judge Base requested the presence of Atty. Brotamonte and subsequently examined the voluntariness and veracity of the confession as well as the authenticity of the signatures of appellant and Atty. Brotamonte. He also explained to appellant the consequences of his confession to the crimes charged and asked him if he was coerced into admitting them. Judge Base inspected appellants body and asked him if he was forced or coerced. Judge Base then asked appellant if he was still willing to sign it again and appellant answered in the affirmative saying that his conscience bothered him. Judge Base asked him to sign the confession again in the presence of Atty. Brotamonte, after which appellant affixed his signature. Appellant repudiated his extra-judicial confession before the trial court and assailed its admissibility alleging that it was executed in violation of his constitutional rights, particularly his right to a competent and independent counsel of his own choice; and that he was not fully apprised of the consequences of his confession. He testified that the real perpetrators of the crime were his brother-inlaw, Roberto Angeles, and a certain Carlito Begil, and that he was only forced into owning up to the crimes because Angeles threatened to harm him or his sister, Angeless wife, if he did not do so. ISSUE: w/n the confession is admissible for failure of the counsel to apprise the accused of the imposable penalty of the crime to which he is to confess. HELD: No. The failure of Atty. Brotamonte to apprise appellant of the imposable penalty of the crimes he was to admit is not a sufficient ground to strike down appellants extrajudicial confession, what the Constitution regards as inadmissible in evidence is confession given by an accused without having been informed of his right to remain silent, or, without having been given competent and independent counsel, preferably his own choice, or if he cannot afford the services of counsel, he was not provided with one; or the waiver of his rights was not in writing and not in the presence of counsel; or, that he was tortured, forced, threatened, intimidated, by violence or any other means that vitiated his free will. There is nothing in the Constitution that mandates a counsel to inform an accused of the possible penalty for the crime he committed. Neither would a presumption arise that the counsel is incompetent or not independent just because he failed to apprise the accused that the imposable penalty for the crime he was about to admit is death. After all, the imposable penalty is totally immaterial to the resolve of an accused to admit his guilt in the commission of a crime. As previously stated, Atty. Brotamonte ably assisted appellant during the entire procedure from the time appellant signified his intention to give his extrajudicial confession up to the time he signed the same. Besides, it cannot be gainsaid that appellant was not aware of

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the consequences of his admissions as Judge Base explained it to appellant when he appeared before the latter to swear to the veracity of his confession.

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given the Miranda warnings he agreed to give a statement. Next, he signed again his name at the end of page 2 to authenticate that page as part of his confession. Fourth, he signed the third page at the end of his confession. Fifth, he signed his name again on the third page in which the jurat appears. Extrajudicial confessions are presumed voluntary, and, in the absence of conclusive evidence showing the declarant's consent in executing the same has been vitiated, such confession will be sustained. But what renders the confession of accused-appellant inadmissible is the fact that accused-appellant was not given the Miranda warnings effectively. Under the Constitution, an uncounseled statement, such as it is called in the United States from which Art. III, 12(1) was derived, is presumed to be psychologically coerced. Swept into an unfamiliar environment and surrounded by intimidating figures typical of the atmosphere of police interrogation, the suspect really needs the guiding hand of counsel. Now, under the first paragraph of this provision, it is required that the suspect in custodial interrogation must be given the following warnings: (1) He must be informed of his right to remain silent; (2) he must be warned that anything he says can and will be used against him; and (3) he must be told that he has a right to counsel, and that if he is indigent, a lawyer will be appointed to represent him. Indeed, the waiver signed by accused-appellant reads: MGA KARAPATAN AYON SA ATING BINAGONG SALIGANG BATAS: Ikaw, JIMMY OBRERO y CORLA, ay aking isasailalim sa pagsisiyasat sa salang Pagnanakaw na may kasamang Pagpatay, nais kong ipaalam sa iyo ang iyong mga karapatan ayon sa ating Binagong Saligang Batas: 1. Karapatan mo ang manahimik at huwag sagutin ang mga itatanong ko sa iyo; 2. Karapatan mo ang kumuha ng isang abogado na iyong sariling pili na maaaring makatulong sa iyo sa imbistigasyon na ito at kung hindi ka makakakuha ng iyong abogado ay bibigyan ka namin ng isa na walang bayad para makatulong sa iyo; 3. Karapatan mo rin na malaman na ang lahat ng iyong sasabihin dito sa iyong salaysay ay maaaring gamiting katibayan o ebidensya laban o pabor sa iyo o sa kanino mang tao sa alinmang hukuman dito sa Pilipinas. Ngayon na naipaalam ko na sa iyo ang iyong mga karapatan, nais mo pa bang magbigay ng iyong malaya at kusang loob na salaysay? SAGOT : (ni Jimmy Obrero y Corla) Opo. TANONG: Kung ganoon ay sabihin mo ulit ang iyong pangalan at lagdaan mo ito sa ibabaw ng iyong pangalan na ipipirma o imamakinilya ko? (Sgd.) JIMMY OBRERO y CORLA There was thus only a perfunctory reading of the Miranda rights to accused-appellant without any effort to find out from him whether he wanted to have counsel and, if so, whether he had his own counsel or he wanted the police to appoint one for him. This kind of giving of warnings, in several decisions of this Court, has been found to be merely ceremonial and inadequate to transmit meaningful information to the suspect. Moreover, Art. III, 12(1) requires that counsel assisting suspects in custodial interrogations be competent and independent. Here, accused-appellant was assisted by Atty. De los Reyes, who, though presumably competent, cannot be considered an "independent counsel" as contemplated by the law for the reason that he was station commander of the WPD at the time he assisted accusedappellant. This is error. As observed in People v. Bandula, the independent counsel required by Art. III, 12(1) cannot be a special counsel, public or private prosecutor, municipal attorney, or counsel of the police whose interest is admittedly adverse to the accused. In this case, Atty. De los Reyes, as PC Captain and Station Commander of the WPD, was part of the police force who could not be expected to have effectively and scrupulously assisted accused-appellant in the investigation, his claim to the contrary notwithstanding. G.R. No. 132154 June 29, 2000 PEOPLE OF THE PHILIPPINES, vs.PACITO ORDOO FACTS Accused were charged for the rape and killing of Shirley Victore, fifteen (15) years old. Accused then allegedly confessed the crime but such confession was un assisted by counsel due to the difficulty of obtaining one from the area. The statements of the two (2) accused where nevertheless taken. But before doing so, both accused were apprised in their own dialect of their constitutional right to remain silent and to be assisted by a competent counsel of their

G.R. No. L-51770 March 20, 1985 THE PEOPLE OF THE PHILIPPINES, vs.FRANCISCO GALIT, FACTS: The prisoner was arrested for killing the victim oil the occasion of a robbery. He had been detained and interrogated almost continuously for five days, to no avail. He consistently maintained his innocence. There was no evidence to link him to the crime. Obviously, something drastic had to be done. A confession was absolutely necessary. So the investigating officers began to maul him and to torture him physically. Still the prisoner insisted on his innocence. His will had to be broken. A confession must be obtained. So they continued to maltreat and beat him. 'They covered his face with a rag and pushed his face into a toilet bowl full of human waste. The prisoner could not take any more. His body could no longer endure the pain inflicted on him and the indignities he had to suffer. His will had been broken. He admitted what the investigating officers wanted him to admit and he signed the confession they prepared. Later, against his will, he posed for pictures as directed by his investigators, purporting it to be a reenactment. The accused then assailed the admissibility of the extra-judicial confession extracted from him through torture, force and intimidation as described earlier, and without the benefit of counsel. ISSUE: w/n there was a valid confession made HELD: No. The alleged confession and the pictures of the supposed re-enactment are inadmissible as evidence because they were obtained in a manner contrary to law. There were no eyewitnesses, no property recovered from the accused, no state witnesses, and not even fingerprints of the accused at the scene of the crime. The only evidence against the accused is his alleged confession. Such a long question followed by a monosyllabic answer does not satisfy the requirements of the law that the accused be informed of his rights under the Constitution and our laws. Instead there should be several short and clear questions and every right explained in simple words in a dialect or language known to the person under investigation. Accused is from Samar and there is no showing that he understands Tagalog. Moreover, at the time of his arrest, accused was not permitted to communicate with his lawyer, a relative, or a friend. In fact, his sisters and other relatives did not know that he had been brought to the NBI for investigation and it was only about two weeks after he had executed the salaysay that his relatives were allowed to visit him. His statement does not even contain any waiver of right to counsel and yet during the investigation he was not assisted by one. At the supposed reenactment, again accused was not assisted by counsel of his choice. These constitute gross violations of his rights. NEW RULE ON WAIVER G.R. No. 122142 May 17, 2000 THE PEOPLE OF THE PHILIPPINES, ,vs. JIMMY OBRERO y CORLA, FACTS: Accused was charged for the murder of NENA BERJUEGA and REMEDIOS HITTA, by stabbing them to death, thereby inflicting upon the said victims mortal stab wounds which were the direct and immediate cause of their death thereafter and robbery of 4 thousand pesos. Accused then executed a confession, assisted by Atty. Bienvenido De los Reyes, a PC Captain of the WPD Headquarters, U.N. Avenue, Manila, which he later on contested for being obtained against his will as evidenced by the fact that he signed the extrajudicial confession five times as a sign that it was involuntarily executed by him. He also claims that Atty. De los Reyes, who assisted him in executing his confession, was not the counsel of his own choice ISSUE: w/n the confession is admissible HELD: No. It is inadmissible. There are two kinds of involuntary or coerced confessions treated in this constitutional provision: (1) those which are the product of third degree methods such as torture, force, violence, threat, intimidation, which are dealt with in paragraph 2 of 12, and (2) those which are given without the benefit of Miranda warnings, which are the subject of paragraph 1 of the same 12. There were no clear showing of duress on the part of the accused upon executing the confession since -appellant claims he was made to sign five times is not the same confession but different parts thereof. He signed his name on page 1 to acknowledge that he had been given the Miranda warnings. Then, he signed again as proof that after being

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

choice. Upon their acquiescence and assurance that they understood their rights and did not require the services of counsel, the investigation was conducted with the Parish Priest, the Municipal Mayor, the Chief of Police and other police officers of Santol, La Union, in attendance to listen to and witness the giving of the voluntary statements of the two (2) suspects who admitted their participation in the crime. Thereafter, Apolonio Medina and Pacito Ordoo were detained at the Santol police station where they were inrerviewed by Roland Almoite, leading radio announcer of radio station DZNL which was duly taperecorded where both accused admitted again their complicity in the crime and narrated individually the events surrounding their commission thereof. A couple of days later, the police brought the two (2) accused to the office of the PAO lawyer in Balaoan, La Union, for assistance and counseling. In a closed-door session, PAO lawyer Oscar B. Corpuz apprised each of the accused of his constitutional rights and, even though their confessions were already written in their dialect, explained to them each of the questions and answers taken during the investigation. He likewise advised them to ponder the consequences of their confessions, leading them to defer the affixing of their second signature/thumbmark thereon but they nevertheless signed it after two weeks.Once again Atty. Corpuz apprised the two (2) accused of their constitutional rights, explained the contents of their respective statements, and finally, accompanied them to Judge Fabian M. Bautista, MTC judge of Balaoan, La Union, who further apprised the two (2) accused of their constitutional rights and asked them if they had been coerced into signing their confessions. They assured Judge Bautista that their statements had been given freely and voluntarily. Upon such assurance that they had not been coerced into giving and signing their confessions, Judge Bautista finally asked the accused Pacito Ordoo and Apolonio Medina to affix their signatures/thumbmarks on their respective confessions, and to subscribe the same before him. Atty. Corpuz then signed their statements as their assisting counsel, followed by a few members of the MTC staff who witnessed the signing. Both accused now assails their conviction on the ground that constitutional infirmities attended the execution of their extrajudicial confessions mainly the lack of counsel to assist them during custodial investigation thereby making their confessions inadmissible in evidence. ISSUE: w/n the confession was valid HELD: Yes. Under the Constitution and the rules laid down pursuant to law and jurisprudence, a confession to be admissible in evidence must satisfy four (4) fundamental requirements: (a) the confession must be voluntary; (b) the confession must be made with the assistance of competent and independent counsel; (c) the confession must be express; and, (d) the confession must be in writing. In the instant case, custodial investigation began when the accused Ordoo and Medina voluntarily went to the Santol Police Station to confess and the investigating officer started asking questions to elicit information and/or confession from them. At such point, the right of the accused to counsel automatically attached to them. Concededly, after informing the accused of their rights the police sought to provide them with counsel. However, none could be furnished them due to the nonavailability of practicing lawyers in Santol, La Union, and the remoteness of the town to the next adjoining town of Balaoan, La Union, where practicing lawyers could be found. At that stage, the police should have already desisted from continuing with the interrogation but they persisted and gained the consent of the accused to proceed with the investigation. To the credit of the police, they requested the presence of the Parish Priest and the Municipal Mayor of Santol as well as the relatives of the accused to obviate the possibility of coercion, and to witness the voluntary execution by the accused of their statements before the police. Nonetheless, this did not cure in any way the absence of a lawyer during the investigation. In providing that during the taking of an extrajudicial confession the accused's parents, older brothers and sisters, his spouse, the municipal mayor, municipal judge, district school supervisor, or priest or minister of the gospel as chosen by the accused may be present, RA 7438 does not propose that they appear in the alternative or as a substitute for counsel without any condition or clause. It is explicitly stated therein that before the above-mentioned persons can appear two (2) conditions must be met: (a) counsel of the accused must be absent, and, (b) a valid waiver must be executed. RA 7438 does not therefore unconditionally and unreservedly eliminate the necessity of counsel but underscores its importance by requiring that a substitution of counsel with the above-mentioned persons be made with caution and with the essential safeguards.

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Hence, in the absence of such valid waiver, the Parish Priest of Santol, the Municipal Mayor, the relatives of the accused, the Chief of Police and other police officers of the municipality could not stand in lieu of counsel's presence. The apparent consent of the two (2) accused in continuing with the investigation was of no moment as a waiver to be effective must be made in writing and with the assistance of counsel. Consequently, any admission obtained from the two (2) accused emanating from such uncounselled interrogation would be inadmissible in evidence in any proceeding. Securing the assistance of the PAO lawyer five (5) to eight (8) days later does not remedy this omission either. It could not cure the absence of counsel during the custodial investigation when the extrajudicial statements were being taken. The second affixation of the signatures/thumbmarks of the accused on their confessions a few days after their closed-door meeting with the PAO lawyer, in the presence and with the signing of the MTC judge, the PAO lawyer and other witnesses, likewise did not make their admissions an informed one. It should further be recalled that the accused were not effectively informed of their constitutional rights when they were arrested, so that when they allegedly admitted authorship of the crime after questioning, their admissions were obtained in violation of their constitutional rights against self-incrimination under Sec. 20, Art. IV, of the Bill of Rights. As testified to, the police informed the accused of their rights to remain silent and to counsel in a dialect understood by them, but despite the accused's apparent showing of comprehension, it is doubtful if they were able to grasp the significance of the information being conveyed. Pertinent portions of the extrajudicial confessions of Pacito Ordoo and Apolonio Medina, translated into English, read PRELIMINARY Mr. Pacito Ordoo, I am informing you that you are being investigated of an offense but before we continue, I tell you that you have the right to remain silent under the new Constitution of the Philippines. And you are also herein reminded that all statements you give may be used for or against you in any Philippine court as evidence and it is herein likewise reminded that you have the right to secure the services of a lawyer of your own choice to represent you in this investigation, do you understand all these? A: Yes, sir because all that I will state will only be the truth. Q: Do you want that we will continue with this investigation after having been appraised of all your rights? A: Yes, sir. Q: And, do you want that we continue with the investigation even without a lawyer of your own choice to represent you? A: Yes, sir. Q: Are you now prepared to give your voluntary statement consisting only the truth, without any lies whatsoever? A: Yes, sir . . . . PRELIMINARY Mr. Apolonio Medina, I inform you that you are being investigated of an offense but before we proceed with this investigation, I am informing you that you have the right to remain silent to all questions asked of you, according to the new Philippine Constitution. And you are likewise reminded that all statements you give may be used for or against you in any Philippine court and you have a right to have a lawyer of your own choice to represent you in this investigation, do you understand this? ANSWER Yes, sir. Q: After having known all your rights; do you want that we continue with the investigation? A: Yes, sir. Q: Do you want that we continue with this investigation even without a lawyer to represent you? A: Yes, sir because all that I will state are the truth. Q: Are you now prepared to give your voluntary statement consisting only the truth, nothing but the truth? A: Yes, sir. The advice proffered by the investigating officer to Ordoo starkly resembles that given to Medina, thus leading the court to conclude that the advice was given perfunctorily and belonged to the

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

stereotyped class a long question by the investigator informing the appellant of his right followed by a monosyllabic answer which this Court has condemned for being unsatisfactory. The desired role of counsel in the process of custodial investigation is rendered meaningless if the lawyer gives an advice in a cursory manner as opposed to a meaningful advocacy of the rights of the person undergoing questioning. If advice is given casually and tritely as to be useless, understanding on the part of the accused is sacrificed and the unconstrained giving up of a right becomes impaired. However, the tape recorded interview is still admissible and appears to be authentic for the court. A review of the contents of the tape as included in Roland Almoite's testimony reveals that the interview was conducted free from any influence or intimidation from police officers and was done willingly by the accused. Despite allegations to the contrary, no police authority ordered or forced the accused to talk to the radio announcer. While it may be expected that police officers were around since the interview was held in the police station, there was no showing that they were within hearing distance nor within the vicinity where the interview was being conducted. At most, the participation of the police authorities was only to allow Roland Almoite to conduct an interview. The Supreme Court have held that statements spontaneously made by a suspect to news reporters on a televised interview are deemed voluntary and are admissible in evidence. By analogy, statements made by herein accused to a radio announcer should likewise be held admissible. The interview was not in the nature of an investigation as the response of the accused was made in answer to questions asked by the radio reporter, not by the police or any other investigating officer. When the accused talked to the radio announcer, they did not talk to him as a law enforcement officer, as in fact he was not, hence their uncounselled confession to him did not violate their constitutional rights. Sec. 12, pars. (1) and (3), Art. III, of the Constitution do not cover the verbal confessions of the two (2) accused to the radio announcer The Bill of Rights does not concern itself with the relation between a private individual and another individual. It governs the relationship between the individual and the State. (Eloy Pepito) PEOPLE vs. PEDRO G. TALIMAN, et al [G. R. No. 109143. October 11, 2000] FACTS: An information for the murder of Renato Cuano was filed with the RTC of Camarines Norte against accused Pedro Taliman, Basilio Baybayan, Amado Belano, Danilo Obenia and Rufino Valera. A custodial investigation was conducted. Upon invitation of police corporal to assist accused during their custodial investigation, Atty. Nicolas V. Pardo who was then Mayor of Labo, Camarines Norte, went to the police station. Accused executed extra-judicial statements, confessing to the commission of the crime. Trial court convicted them based on the extra-judicial confessions. Pedro Taliman appealed. He submitted that the extra-judicial confessions on which the trial court relied upon were inadmissible in evidence because they were obtained in violation of their constitutional rights. ISSUE: WON the extra-judicial confessions were inadmissible? YES. HELD: The extra-judicial statements alone cannot be a basis for conviction. The right to counsel under Article III, Section 12 (1) of the Constitution cannot be waived except in writing and in the presence of counsel. Mayor Pardo cannot be considered as an independent counsel for accused during their custodial investigation. In People v. Culala, we held that the extra-judicial confession of the accused was inadmissible as he was assisted by the incumbent municipal attorney. In People vs. Bandula, we held that a municipal attorney could not be an independent counsel as required by the Constitution. We reasoned that as legal officer of the municipality, he provides legal assistance and support to the mayor and the municipality in carrying out the delivery of basic services to the people, including the maintenance of peace and order. It is therefore seriously doubted whether he can effectively undertake the defense of the accused without running into conflict of interests. Besides, lawyers engaged by the police, whatever testimonials are given as proof of their probity and supposed independence, are suspects. In many areas, even less obvious than that obtaining in the present case, the relationship between lawyers and law enforcement authorities can be symbiotic. If in the aforecited cases, we disregarded the extra-judicial statements of the accused, how much more must we do so now, given that it was the mayor himself, and not just the provincial attorney, that assisted accused-appellants? Even assuming that the right to counsel was orally waived during custodial

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investigation, still the defect was not cured. The Constitution expressly provides that the waiver must be in writing and in the presence of counsel. This, accused did not do. However, while we agree that the extra-judicial statements of the accused are inadmissible in evidence, we find that there is still sufficient evidence to convict (of homicide only). ROLANDO SANTOS y RAMIREZ vs. SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES [G.R. No. 71523-25. December 8, 2000] FACTS: Sometime in 1981, a syndicate masterminded by Felipe Salamanca infiltrated the Clearing Center of the Central Bank of the Philippines. In its operation, the syndicate employed two schemes: the switching scheme, and the pilferage scheme. In the switching scheme, a syndicate would open a current account with such banks as the Bank of America (BA) and the Philippine Veterans Bank (PVB) in Iloilo. As a matter of procedure, checks drawn on the BA were forwarded to the Central Bank for clearing. Upon receipt of those checks by the clearing clerk of the Central Bank, who was a member of the syndicate, he would substitute those checks with ones bearing the stamp of another bank. Thus, instead of forwarding the checks to the BA, these were misrouted to cause delay in the clearing procedure. Upon the lapse of the clearing period, the depositor would withdraw the amount of the checks. However, the scheme faltered as the huge amounts covered by the checks caused suspicion on the part of the PVB. It called up the BA to inquire about those checks and hence, the former bank discovered that the checks were insufficiently funded. In the pilferage scheme, current accounts would be opened with a provincial bank, such as the Bank of the Philippine Islands (BPI), Laoag branch, and a city bank such as the CitibankGreenhills, Manila. A BPI check deposited with Citibank would then be forwarded to the Central Bank clearing house where members of the syndicate, who were employed there, would pilfer the check and alter the Central Bank manifest and the entries in the clearing bank statements. The pilferage was intended to provide opportunity for the syndicate to blot out entries referring to the pilfered check. Consequently, BPI-Laoag would not know that a check drawn on it had been deposited with Citibank. After the lapse of the five-day clearing period, the syndicate would withdraw the amount deposited from Citibank simply because said bank would have considered the check cleared and funded, as no protest or notice of dishonor could be received from BPI-Laoag. In utilizing this scheme in the commission of the crimes charged, the syndicate netted P9,000,000.00. Three informations for estafa thru falsification of public documents were filed with the Sandiganbayan against Felipe Salamanca, Mariano Bustamante, Basilio Tan, Alfredo Fajardo, Jr., Jesus Estacio, Rolando San Pedro, Manuel Valentino, Rolando Santos, Marcelo Desiderio, Jaime Tan and Emilio Reyes. Valentino occupies a public position as bookkeeper at the Clearing Office of the Central Bank. He intercepted and pilfered BPI-Laoag checks with the assistance of petitioner Estacio, a janitor-messenger at the Central Bank. According to Estacio, sometime in February 1982, upon learning that somebody from the NBI was looking for him, Estacio went to the NBI. There he told Agent Ranin that he wanted to call a lawyer but Agent Ranin did not allow him to do so. Agent Ranin investigated him from 5:30 p.m. until 7:30 p.m. on February 17, 1982. This continued the following day and lasted a week. In the course of the investigation, Agent Ranin promised Estacio that he would not be harmed should he cooperate and admit the charges against him, and that he would be freed once he becomes a state witness. However, Agent Ranin hit him with a newspaper and poked his gun at him. Estacio was allowed to read the statement before he signed it. On cross-examination, Estacio admitted that during his stay at the NBI for about two months, his wife and children would visit him every week and he could talk to them freely. He was transferred to Muntinlupa and detained at the Death Row for two years. On March 22, 1982, Agent Ranin took his second statement that was a continuation of his first statement. He was unable to read his supplementary statement because of fear of Agent Ranin, who was scaring him. He stressed that the statements he made before the NBI were not true and that he only signed those documents because he was afraid of Agent Ranin. ISSUE: WON the extrajudicial confessions of petitioner Estacio and Valentino are inadmissible in evidence as their right to counsel was violated when said confessions were executed? NO. HELD: Article IV, Section 20 of the 1973 Constitution providing for the rights of an accused during custodial investigation, reads: No person shall be compelled to be a witness against

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himself. Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such rights. No force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him. Any confession obtained in violation of this section shall be inadmissible in evidence. On the other hand, the first paragraph of Article III, Section 12 of the 1987 Constitution states: (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. A comparison of these provisions would readily show that the 1973 Constitution does not specify the right against uncounselled waiver of the right to counsel, which is found in the 1987 Constitution. However, the latter constitutional provision cannot be applied to extrajudicial confessions made prior to its date of effectivity. In Filoteo, Jr. vs. Sandiganbayan, this Court held that: The specific provision of the 1987 Constitution requiring that a waiver by an accused of his right to counsel during custodial investigation must be made with the assistance of counsel may not be applied retroactively or in cases where the extrajudicial confession was made prior to the effectivity of said Constitution. Accordingly, waivers of the right to counsel during custodial investigation without the benefit of counsel during the effectivity of the 1973 Constitution should, by such argumentation, be admissible. Although a number of cases held that extrajudicial confessions made while the 1973 Constitution was in force and effect, should have been made with the assistance of counsel, the definitive ruling was enunciated only on April 26, 1983 when this Court, through Morales, Jr. vs. Enrile, issued the guidelines to be observed by law enforcers during custodial investigation. The Court specifically ruled that `(t)he right to counsel may be waived but the waiver shall not be valid unless made with the assistance of counsel. Thereafter, in People vs. Luvendino, the Court through Mr. Justice Florentino P. Feliciano vigorously taught: `xxx The doctrine that an uncounselled waiver of the right to counsel is not to be given legal effect was initially a judge-made one and was first announced on 26 April 1983 in Morales vs. Enrile and reiterated on 20 March 1985 in People vs. Galit. xxx. While the Morales-Galit doctrine eventually became part of Section 12 (1) of the 1987 Constitution, that doctrine affords no comfort to appellant Luvendino for the requirements and restrictions outlined in Morales and Galit have no retroactive effect and do not reach waivers made prior to 26 April 1983 the date of promulgation of Morales. Clearly then, the Morales-Galit rulings are inapplicable in these cases as the extrajudicial confessions in question here, were taken on February 13, February 17 and March 22, 1982, long before the date of promulgation of the Morales Decision on April 26, 1983. Prior to this date, the guidelines requiring that waiver of the right to counsel by an accused can be properly made only with the presence and assistance of counsel, had yet to be formulated and pronounced by this Court. The rule on prospective application of judge-made laws was stressed in Co vs. CA: In accordance with Article 8 of the Civil Code providing that (j)udicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal system of the Philippines, and Article 4 of the same Code stating that (l)aws shall have no retroactive effect, unless the contrary is provided, the principle of prospectivity of statutes, original or amendatory, shall apply to judicial decisions, which, although in themselves are not laws, are nevertheless evidences of what the law means. As to the admissibility of the uncounselled waivers of Valentino and petitioner Estacio of their right to counsel during custodial investigation, the intelligent and voluntary execution thereof should be determined. It is settled that once the prosecution has shown that there was compliance with the constitutional requirement on preinterrogation advisories, a confession is presumed to be voluntary and the declarant bears the burden of proving that his confession is involuntary and untrue. The defense attempted to prove that Valentino and petitioner Estacio were subjected to threats and intimidation at the NBI to obtain their confessions. Other than their bare assertions, Valentino and petitioner Estacio miserably failed to present any convincing evidence to prove the NBIs use of force or intimidation on their persons. Before signing their statements, they never protested against any form of intimidation, much more, of maltreatment that they could have relayed to relatives visiting them at the NBI. In People vs. Pia: It has been held that where the defendants did not present evidence of compulsion or duress or violence on their persons; where they failed to complain to the officers who administered the oaths; where they did not institute any criminal or administrative action against their alleged intimidators for maltreatment; where there appeared to be no marks of violence on their bodies and where they did not have themselves examined by a

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reputable physician to buttress their claim, all these should be considered as factors indicating voluntariness of confessions. That the statements were intelligently executed is borne out by the fact that both confessants have reached the tertiary level of education: Valentino holds the degree of BS in Commerce while petitioner Estacio reached the first year of college education in banking and finance. Possessed with sufficient education and not proven to be mentally unfit, they could have protested the forced extraction of culpability from themselves if indeed that was true. Moreover, the extrajudicial confessions in question are replete with details on the manner in which the crimes were committed, thereby ruling out the probability that these were involuntarily made. Voluntariness of a confession may be inferred from its language such that, if upon its face the confession exhibits no sign of suspicious circumstances tending to cast doubt upon its integrity, it being replete with details which could possibly be supplied only by the accused reflecting spontaneity and coherence which, psychologically, cannot be associated with a mind to which violence and torture have been applied, it may be considered voluntary. In these cases, the NBI investigator would not have known the members of the syndicate and the sophisticated manner by which the crimes in question were perpetrated if Valentino and Estacio, who were directly involved therein, did not reveal these. With respect to the admissibility of the extrajudicial confessions of Valentino and petitioner Estacio against their coaccused, once again, this Court declares that although an extrajudicial confession is admissible only against the confessant, jurisprudence makes it admissible as corroborative evidence of other facts that tend to establish the guilt of his co-accused. In People vs. Alvarez, this Court ruled that where the confession is used as circumstantial evidence to show the probability of participation by the co-conspirator, that confession is receivable as evidence against a co-accused. The Court elucidated further in People vs. Encipido: It is also to be noted that APPELLANTS extrajudicial confessions were independently made without collusion, are identical with each other in their material respects and confirmatory of the other. They are, therefore, also admissible as circumstantial evidence against their co-accused implicated therein to show the probability of the latters actual participation in the commission of the crime. They are also admissible as corroborative evidence against the others, it being clear from other facts and circumstances presented that persons other than the declarants themselves participated in the commission of the crime charged and proved. They are what is commonly known as interlocking confession and constitute an exception to the general rule that extrajudicial confessions/admissions are admissible in evidence only against the declarants thereof. Petitioner Estacio claimed that, to his surprise, he found Valentino at the NBI. They talked for a while and Valentino told him to say whatever he (Valentino) would say. That allegation alone cannot be considered as indicative of collusion between them as their sworn statements both contain facts showing their deep involvement in the scheme to defraud a bank. Human experience dictates that no one would volunteer to demonstrate ones culpability unless it was the truth. It may thus be safely presumed that in telling petitioner Estacio to say whatever he would say, Valentino was merely cautioning petitioner Estacio to tell the truth. Nevertheless, even without the extrajudicial confessions of petitioner Estacio and Valentino, evidence on record is sufficient to sustain a finding of culpability.

PEOPLE vs. ZALDY MENDOZA y SEVILLA [G.R. No. 143702. September 13, 2001] FACTS: Accused Zaldy Mendoza was found guilty by the trial court of the crime of robbery with homicide and sentencing him to suffer the penalty of reclusion perpetua and to indemnify the heirs of the victim, Hernandez Abatay. Accused argued that the confession he made to PO3 Daniel Tan at the St. Pauls Hospital that he and Marco Aguirre had robbed Abatay is inadmissible in evidence because it was given without the assistance of counsel while under custody. He alleged that PO3 Tan handcuffed him and took him to the St. Pauls Hospital where Abatay was confined. In the presence of Tan and some nurses and the attending physician in the emergency room, Abatay pointed to accused as one of those who had held him up and then stabbed him. Tan then placed accused under arrest and took him to the police station for investigation. ISSUE: WON the confession made was inadmissible? YES. But waived.. HELD: Indeed, the confession is inadmissible in evidence under Article III, Section 12(1) and (3) of the Constitution, because it was given under custodial investigation and was made without the

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assistance of counsel. However, the defense failed to object to its presentation during the trial with the result that the defense is deemed to have waived objection to its admissibility. No error was, therefore, incurred by the trial court in admitting evidence of the confession. PEOPLE OF THE PHILIPPINES vs. JOEL GONZALES, et al [G.R. No. 142932. May 29, 2002] FACTS: The trial court convicted accused Joel Gonzales and Romeo Bernaldez of the crime of Robbery with Homicide that happened at the ACF passenger bus compound in Governor Generoso, Davao Oriental. Accused Gonzales contends that during the interrogation and investigation, he and his co-appellant Romeo Bernaldez were not informed of their rights to remain silent and to secure the services of counsel, in violation of 2 and 12, Art. III of the Constitution. Hence, their admission of the commission of the crime is inadmissible in evidence against them. Gonzales also contends that Inspector Malintad had no warrant when the latter conducted a search of his residence. He contends that the alleged items taken during the robbery in the ACF bus compound and the cassette recorder and wristwatch are inadmissible in evidence against him. ISSUE: WON the evidence adduced by the prosecution during the trial are inadmissible? YES, But waived.. HELD: To be sure, accused-appellants were already under custodial investigation when they made their admissions to the police. At that point, the investigation had ceased to be a general inquiry into an unsolved crime and had began to focus on the guilt of a suspect and for this reason the latter were taken into custody or otherwise deprived of freedom in a substantial way. Hence, their admissions are inadmissible in evidence pursuant to Art. III, 2(1) and (3) of the Constitution. However, the defense failed to raise its objections to the admissibility of these statements immediately, as required by Rule 132, 36, when Inspector Malintad was presented as a witness for the prosecution or when specific questions concerning the confession were asked of him. Consequently, accused-appellants are deemed to have waived their right to object to the admissibility of Inspector Malintad's testimony. Indeed, it was even the defense counsel who provided the opportunity for Inspector Malintad to elaborate on the circumstances of accused Gonzales' admission in the course of his cross-examination of the said witness. Inspector Malintad also claimed that accused-appellant Romeo Bernaldez told him that one of his companions was Joel Gonzales. Such admission by Bernaldez may be taken as evidence against his Gonzales. For the constitutional provision on custodial investigation does not apply to a spontaneous statement, not elicited through questioning by the authorities, but given in an ordinary manner whereby the accused orally admitted having committed the crime. ISSUE: WON there was an invalid search and seizure? NO. HELD: As explained by Inspector Malintad, accused Joel Gonzales voluntarily surrendered the stolen goods to him. When he went to the house of accused-appellant Joel Gonzales, the watches, cassette recorder, chainsaw, and spare parts were given to him. What thus happened was a consented search, which constitutes a waiver of the constitutional requirement for a search warrant. It has been held that the right to be secure from an unreasonable search may be waived either expressly or impliedly. And when the accused himself waives his right against unreasonable search and seizure, as in this case, the exclusionary rule (Art. III, 3(2)) in the Constitution does not apply.

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Felicisimo Jara denied the charge that he was the one who killed his wife, Luisa, together with her friend, Amparo Bantigue. He interposed alibi as a defense. Meanwhile, Reymundo Vergara and Roberto Bernadas retracted their respective extra-judicial confessions during proceedings before the Inquest Fiscal. They contested the admissibility of the extra-judicial confessions and the subsequent reenactment of the crime on the ground that their participations in these occasions were not free and voluntary and were without the benefit of counsel. ISSUE: WON the extra-judicial confessions of Vergara and Bernadas were inadmissible? YES. WON there was a valid waiver? NO. HELD: There is no dispute that the confessions in these cases were obtained in the absence of counsel. According to the records, there was a waiver by the accused of their right to counsel, but said waiver was invalid. Before the extrajudicial confession of Bernadas was reduced to writing, Pfc. Henry E. Pulga, in the presence of four other police officers, made the following "Pasubali" followed by the answer, "Opo". This stereotyped "advice" appearing in practically all extrajudicial confessions which are later repudiated has assumed the nature of a "legal form" or model. Police investigators either automatically type it together with the curt "Opo" as the answer or ask the accused to sign it or even copy it in their handwriting. Its tired, punctilious, fixed, and artificially stately style does not create an impression of voluntariness or even understanding on the part of the accused. The showing of a spontaneous, free, and unconstrained giving up of a right is missing. Whenever a protection given by the Constitution is waived by the person entitled to that protection, the presumption is always against the waiver. Consequently, the prosecution must prove with strongly convincing evidence to the satisfaction of this Court that indeed the accused willingly and voluntarily submitted his confession and knowingly and deliberately manifested that he was not interested in having a lawyer assist him during the taking of that confession. That proof is missing in this case. The records sustain the appellants' contention that their extrajudicial confessions bear clear earmarks of illegality and improbability. The People v. Castaeda ruling applies to a crime committed before the Bill of Rights was amended to include Section 20 on the right to remain silent and to counsel and to be informed of such right. The presumption that "no one would declare anything against himself unless such declarations were true" assumes that such declarations are given freely and voluntarily. The new Constitution, in expressly adopting the so-called Miranda v. Arizona (384 U.S. 436) rule, has reversed the presumption. The prosecution must now prove that an extrajudicial confession was voluntarily given, instead of relying on a presumption and requiring the accused to offset it. There would have been no need to amend the centuries old provisions of the Bill of Rights and to expressly add the interdiction that "no force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him (the person being investigated)" if the framers intended us to continue applying the pre-1973 or preamendment presumptions. Miranda v. Arizona, in explaining the rule which the U.S. Court adopted, states: While the admissions or confessions of the prisoner, when voluntarily and freely made, have always ranked high in the scale of incriminating evidence, if an accused person be asked to explain his apparent connection with a crime under investigation, the ease with which the questions put to him may assume an inquisitorial character, the temptation to press the witness unduly, to browbeat him if he be timid or reluctant, to push him into a corner and to entrap him into fatal contradictions, which is so painfully evident . . . made the (continental) system so odious as to give rise to a demand for its total abolition. It is natural and to be expected that the police officers who secured the confessions in these cases should testify that the statements were voluntarily given. However, the records show that the interrogations were conducted incommunicado in a police-dominated atmosphere. When appellant Bernadas gave his confession, his companions in the room were five police officers. The only people with Vergara when he confessed were also police investigators. We quote some more passages from Miranda: Again we stress that the modern practice of in-custody interrogation is psychologically rather than physically oriented. This Court has recognized that coercion can be mental as well as physical, and that the blood of the accused is not the only hallmark of an unconstitutional inquisition. Interrogation still takes place in privacy. Privacy results in secrecy and this in turn results in a gap in our knowledge as to what in fact goes on in the interrogation rooms. A valuable source of information about present police practices, however, may be found in various police manuals and texts which document procedures employed with

5.

THE BURDEN OF PROVING VOLUNTARINESS

PEOPLE OF THE PHILIPPINES vs. FELICISIMO JARA, et al [G.R. No. L-61356-57. September 30, 1986] FACTS: In the consolidated cases of People vs Felicisimo Jara, et al. (Criminal Case No. 2564) for Robbery with Homicide and People vs. Felicisimo Jara, et al. (Criminal Case No. 2565) for Parricide, the CFI of Palawan found all the accused guilty as charged. The victims were Amparo Vda. De Bantigue and Luisa Jara. It appears that the other two suspects in the killing, appellants Reymundo Vergara and Roberto Bernadas were apprehended. After investigation, they confessed their guilt to the Provincial Commander of the Philippine Constabulary in Palawan and other police investigators. They also positively Identified appellant Felicisimo Jara as the mastermind who had plotted the killing and who promised them a fee of P1,000 each for their participation. Before the City Fiscal and First Assistant Fiscal of Puerto Princesa City, respectively, appellants Vergara and Bernadas subscribed and swore to their extra-judicial statements wherein they narrated their role and that of Felicisimo Jara in the killing. Thereafter, the killing was reenacted before the military authorities and the public, with appellants Vergara and Bernadas participating.

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success in the past, and which recommend various other effective tactics. The officers are told by the manuals that the 'principal psychological factor contributing to a successful interrogation is privacy-being alone with the person under interrogation.' The efficacy of this tactic has been explained as follows: If at all practicable, the interrogation should take place in the investigator's office or at least in a room of his own choice. The subject should be deprived of every psychological advantage. In his own home he may be confident, indignant, or recalcitrant. He is more keenly aware of his rights and more reluctant to tell of his indiscretions or criminal behavior within the walls of his home. Moreover his family and other friends are nearby, their presence lending moral support. In his own office, the investigator possesses all the advantages. The atmosphere suggests the invincibility of the forces of the law. To highlight the isolation and unfamiliar surroundings, the manuals instruct the police to display an air of confidence in the suspect's guilt and from outward appearance to maintain only an interest in confirming certain details. The guilt of the subject is to be posited as a fact. The interrogator should direct his comments toward the reasons why the subject committed the act, rather than court failure by asking the subject whether he did it. The officers are instructed to minimize the moral seriousness of the offense, to cast blame on the victim or on society. These tactics are designed to put the subject in a psychological state where his story is but an elaboration of what the police purport to know already-that he is guilty. Explanations to the contrary are dismissed and discouraged. The texts thus stress that the major qualities an interrogator should possess are patience and perseverance. It is possible in this way to induce the subject to talk without resorting to duress or coercion. The method should be used only when the guilt of the subject appears highly probable. " The cited police manuals state that the above methods should be used only when the guilt of the subject appears highly probable. As earlier stated, the investigators in the cases now before us appear to have been convinced that the accused-appellants were the culprits. Nonetheless, the evils of incommunicado interrogations without adequate safeguards to insure voluntariness could still result in the conviction of innocent persons. More important, what the Constitution commands must be obeyed even at the risk of letting even hardened criminals mix once more with the law-abiding world. As to the re-enactment, the extra-judicial-confessions served as a script for what was to follow. Pictures re-enacting a crime which are based on an inadmissible confession are themselves inadmissible. There are other factors to be considered in these cases. Vergara and Barnadas had been detained for more than 2 weeks before they decided to give "voluntary" confessions. We doubt if it was two weeks of soul-searching and introspection alone which led them to confess. There must have been other persuasions. There were two sensational murder cases in Palawan which preceded the killings now before us, The PC command and the Integrated National Police were under pressure to "solve" these additional sensational killings. Apart from their extra-judicial confessions, no other evidence to implicate Bernadas and Vergara as perpetrators of the killing was introduced by the prosecution. Since these confessions are inadmissible in evidence, the two appellants have to be acquitted. The strongest evidence against Felicisimo Jara are the extra-judicial confessions of his two co-accused. Bernadas and Vergara point to Jara as the one who bludgeoned the two victims with a hammer and then used a pair of scissors in inflicting the stab wounds. He was also alleged to have offered them P1,000 each if they would help him in the killing of his wife. However, since the confessions of Bernadas and Vergara are inadmissible against them, with more reason can they not be used against Jara. (Bernadas and Vergara were acquitted in the two cases; while Jara was convicted of murder and parricide respectively.) PEOPLE OF THE PHILIPPINES vs. LEONARDO TOLENTINO and HAMID DUMA [G.R. No. L-50103. November 24, 1986] FACTS: In Criminal Case No. 151 of CFI of Basilan, Hamid Duma, Leonardo Tolentino and Romeo Palermo were accused of the crime of robbery (of Coconut Planters in Basilan) with homicide (of Benjamin Pollisco, security guard). Romeo Palermo was acquitted on the ground of insufficiency of evidence while Hamid Duma and Leonardo Tolentino were found guilty. It appears that Duma, while on his way home from a drinking joint, he was mauled and assaulted by a group of soldiers who thereafter, brought him to the office of the Coconut Planters for investigation. Then he was immediately placed under custodial investigation focusing on him as the principal suspect. The beatings, assault, maltreatment and intimidations of death upon him were continued by Francisco and his men, until he was finally compelled to falsely admit and make untruthful statements incriminating himself and his two other

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co-accused. After having falsely admitted participation, appellant was immediately brought to the police station. At the police station, appellant's right hand was handcuffed by Corporal Francisco and thereafter, hanged by his right hand until only his toes were touching the floor of the police station. Appellant's statement was taken at the police station. Appellant was then brought before Ruben Ramos, Clerk of Court II, Municipal Court of Isabela, Basilan before whom the statement of appellant was sworn to and subscribed. Thereafter, appellant was held incommunicado (sic) for the period of one week. In a preliminary investigation conducted by the Provincial Fiscal of Basilan, the appellant and his co-accused were not assisted by counsel or informed of such right nor were they informed of their right to remain silent pursuant to Section 20, Article IV of the 1973 Constitution. And while the Provincial Fiscal had not intimidated appellant and his two other co-accused into submitting themselves to preliminary investigation, the presence of Corporal Conrado Francisco, who remained outside of the Fiscal's Office and monitoring the proceedings therein to the mind of the appellant, was enough intimidation to himself into repeating the untruthful statements during the preliminary investigation. Since there was no eyewitness to the commission of the crime, the trial court, in assessing the evidence, accorded importance, among other things, to the in-custody confession of appellant which it characterized as voluntary. The trial court concluded that since herein appellant failed "to adequately meet or put up convincingly the burden of proof of the involuntariness of the confession," the presumption of voluntariness stands and the fact that the same was obtained from him while under arrest does not affect its admissibility. Appellant claims that his confession should have been ruled out as evidence as it was extracted "as a result of torture, intimidation, force, threats, violence and coercion upon his person" and without the assistance of counsel, in violation of Section 20, Article IV of the 1973 Constitution: SEC. 20. No person shall be compelled to be a witness against himself. Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right. No force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him. Any confession obtained in violation of this section shall be in admissible in evidence. ISSUE: NO. WON the extra-judicial confession was validly obtained?

HELD: It appears that in giving credence to the confession, the trial court applied the rule in People vs. Castro, where it was stated that the burden of proof to show the involuntariness of a confession rests on the accused. However, the Castro ruling, which is premised on the presumption of regularity of official acts, is no longer controlling in so far as it concerns the application of Section 20, Article IV of the 1973 Constitution. In People vs. Duero, the Court en banc pronounced that the rights enumerated in Section 20, except the first sentence, were adopted from Miranda vs. Arizona, a case decided by the US Supreme Court on June 13, 1966. This Court then ruled that "inasmuch as the prosecution failed to prove that before Duero made his alleged oral confession he was informed of his rights to remain silent and to have counsel and because there is no proof that he knowingly and intelligently waived those rights, his confession is inadmissible in evidence." In effect, the Court not only abrogated the rule on presumption of regularity of official acts related to admissibility of statements taken during in-custody interrogation but likewise dispelled in doubt as to the full adoption of the Miranda doctrine in this jurisdiction. It is now incumbent upon the prosecution to prove during a trial that prior to questioning, the confessant was warned of his constitutionality protected rights. In Miranda, the Court laid own the rule on admissibility of statements, i. e., that the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. The heavy burden is on the prosecution because the State is responsible for establishing the isolated circumstance under which the interrogation takes place and has the only means of making available corroborated evidence of warnings given during incommunicado interrogation. Precisely, the Miranda doctrine was formulated to counteract the incommunicado police-oriented atmosphere during custodial interrogation and the evils it can bring. Prescinding from these principles, the U.S. Court enumerated the procedural safeguards which must be adhered to as follows: At the outset, if a person in custody is to be subjected to interrogation, he must first be informed in clear and unequivocal terms that he has the right to remain silent. The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court. This warning is needed in order to

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make him aware not only of the privilege, but also of the consequences of foregoing it. An individual need not make a pre-interrogation request for a lawyer. While such request affirmatively secures his right to have one, his failure to ask for a lawyer does not constitute a waiver. No effective waiver of the right to counsel during interrogation can be recognized unless specifically made after the warnings we here delineate have been given. The accused who does not know his rights and therefore does not make a request may be the person who most needs counsel. In order fully to apprise a person interrogated of the extent of his rights under this system then, it is necessary to warn him not only that he has the right to consult with an attorney, but also that if he is indigent a lawyer will be appointed to represent him. Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at anytime prior to or during questioning, that he wishes to remain silent, the interrogation must cease ... If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent. If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly waived his privilege against self-incrimination and his right to retained or appointed counsel. The admission of appellant Duma's in-custody confession having been based on an abandoned doctrine, there is a need to re-evaluate the evidence of the prosecution. Assuming questions were propounded to appellant despite the latter's assertion to the contrary, still, it is not the kind of waiver contemplated in Miranda, which dictates that it must be made voluntarily, knowingly and intelligently. Moreover, appellant was not informed of another absolute prerequisite-that if he is indigent, a lawyer will be appointed to represent him. Without the additional warning, the admonition of the right to consult with counsel would often be understood as meaning only that he can consult with a lawyer if he has one or has the funds to obtain one. The warning of a right to counsel would be hollow if not couched in terms that would convey to the indigent-the person most often subjected to interrogation-the knowledge that he too has a right to have counsel present and only by effective and express explanation to the indigent of this right can there be assurance that he was truly in a position to exercise it. Since the prosecution utterly failed to demonstrate compliance with the procedural safeguards, the Court finds the extrajudicial confession objectionable and therefore in admissible in evidence for being in violation of the inhibition against compulsory self-incrimination. With the exclusion of the cofession of Duma, there is no necessity to deliberate on the appellant's allegations of intimidation and maltreatment which attended its execution. (Hamid Duma is ACQUITTED) PEOPLE OF THE PHILIPPINES vs. VICTOR BACOR [G.R. No. 122895. April 30, 1999] FACTS: The trial court of Oroquieta City found accused-appellant Victor Bacor guilty of murder. During trial and after the prosecution rested its case, the defense demurred to the evidence on the ground that accused's extrajudicial confession which is the only piece of evidence connecting him to the commission of the murder, is inadmissible for any purpose. It appears that appellant approached Jesus Bernido, Chief of the Intelligence Section of the Sinacaban Police Station and told the latter that he was the one responsible for the killing of Dionisio Albores. In view thereof, Bernido asked appellant what prompted him to surrender and appellant told him that it was due to his guilty conscience. Consequently, Bernido, accompanied by SPO3 Maharlika Ydulzura, Chief Investigator of the Sinacaban Police Station, and two other police escorts brought appellant to the PAO in Oroquieta City. Upon arrival at the PAO premises, SPO3 Ydulzura informed PAO Atty. Meriam Anggot that appellant wanted to make a confession of a crime he had committed. Thereafter, in her presence, appellant was asked by the policemen if he had a lawyer and appellant replied that he had none. Appellant was also asked if he wanted to avail of the services of the PAO and he answered in the affirmative. Consequently, Atty. Anggot requested the policemen to leave her and appellant alone inside the office and the policemen readily agreed and stayed outside. She then inquired if appellant was not intimidated, coerced or forced and whether appellant was promised any reward. She also informed appellant that he had the right to remain silent and not to answer questions which may incriminate him and that any statement he will make may be used against him in the future. After being informed of such facts, appellant still declared that he was going to confess because he had committed a crime. During the taking of appellant's confession, in the presence and with the assistance of PAO Atty. Anggot, SPO3 Ydulzura likewise reminded

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appellant in the Visayan dialect, which he knew and spoke, that he had the right to remain silent and the right against self-incrimination and to secure the services of a lawyer of his own choice to assist him in the taking of his confession. Despite such reminder, appellant still agreed and accepted the appointment of PAO Atty. Meriam Anggot as his lawyer to assist him during the taking of his affidavit of confession. In his affidavit which was taken in the typewriter by SPO3 Ydulzura, appellant acknowledged and admitted that he was the one who shot Dionisio Albores at 9:00 o'clock in the evening of March 17, 1991 at Barangay Seor, Sinacaban, Misamis Occidental. He declared therein that he shot Dionisio Albores because the latter threatened to kill him and because he knew that Dionisio was an exconvict who had killed somebody with treachery in the past. Afterwards, SPO3 Ydulzura read the contents of appellant's affidavit to him, in the presence and with the assistance of PAO Atty. Anggot. Subsequently, appellant, after correcting the date, signed his name on the affidavit . Thereafter, appellant subscribed and swore to the veracity of his affidavit, before Atty. Nora Montejo-Lumasag, Clerk of Court of the RTC, Oroquieta City. Before signing the affidavit, Atty. Lumasag read to appellant the contents thereof and informed him of his constitutional rights to remain silent, against self-incrimination and to counsel of his own choice. She also informed appellant about the consequences of his affidavit and that it may be used as evidence against him. She also asked him whether he understood the contents of the affidavit. Subsequently, appellant was asked if the statements in the affidavit are true and correct and he declared that the statements therein are true and correct and that he was willing to sign the affidavit on his own free will. ISSUE: WON there was valid waiver of the right to remain silent? YES. WON the extrajudicial confession is admissible? YES. HELD: Art. III, 12(1) of the Constitution is a corollary of the right against self-incrimination found in Art. III, 17. It has been noted that the Constitution has separated the right of persons under custodial investigation from the traditional right against self-incrimination not only to emphasize but also to guarantee the right to proper treatment of those under investigation. To implement the right of persons under custodial interrogation, R.A. No. 7438, 2(d) requires that any confession must be in writing and signed by the confessant in the presence of his counsel. Decisions of this Court hold that for an extrajudicial confession to be admissible in evidence, it must satisfy the following requirements: (1) the confession must be voluntary; (2) it must be made with the assistance of a competent and independent counsel preferably of the confessant's choice; (3) it must be express; and (4) it must be in writing. The Court finds that accusedappellant's confession satisfies the said requirements. First. Accused-appellant's confession leaves no doubt as to its voluntariness and spontaneity. Accused-appellant does not deny that he surrendered to the police on June 6, 1991, almost three months after the fatal shooting of Dionesio Albores, and confessed to the crime because he "could no longer bear a guilty conscience." In his testimony before the trial court, he admitted that the signature on pages 1, 2, and 3 of his sworn confession was his without any claim that he was forced, coerced or threatened to make the confession. Indeed the details contained in his confession could have been known to accused-appellant alone. Second. Accused-appellant, when asked, said he wanted to have the assistance of counsel. Atty. Anggot of PAO was appointed counsel de officio to assist accused-appellant and the latter expressly accepted her appointment as his counsel before giving his confession. As this Court has held, a PAO lawyer can be considered an independent counsel within the contemplation of the Constitution considering that he is not a special counsel, public or private prosecutor, counsel of the police, or a municipal attorney whose interest is admittedly adverse to that of the accused-appellant. Thus, the assistance of a PAO lawyer in the present case satisfies the constitutional requirement of a competent and independent counsel for the accused. Third, accused-appellant was informed of his constitutional rights to remain silent three times by: Atty. Anggot of PAO, the counsel who assisted accused during his confession; SPO3 Maharlika Ydulzura the police investigator present at the time of the confession; and lastly, Atty. Nora Montejo-Lumasag, the branch clerk of the court RTC of Oroquieta City, before whom accused-appellant swore to the veracity of his confession. Despite all these, the appellant proceeded into confessing that he was the one who killed the victim Dionesio Albores. Accused then stamped his approval to the extrajudicial confession by affixing his signature on each and every page thereof in the presence of counsel Atty. Angot. Contrary to the accusedappellant's contention, there is no need for a separate and express written waiver of his constitutional rights.

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Well-settled is the rule that a confession is presumed to be voluntarily and validly made unless the contrary is proven and that the burden of proof is upon the party who claims the contrary. In this case, this presumption has not been overcome. Not only is accused-appellant's confession replete with details that only he could have supplied, but the circumstances surrounding its execution also belie his claim that he did not validly waive his right to remain silent. Hence, both the trial and the appellate courts correctly convicted accused-appellant on the basis of the confession since, as they noted, it was corroborated by evidence of the corpus delicti which dove-tails with the confession. In our jurisdiction, it is an evidentiary rule that an extrajudicial confession corroborated by evidence of the corpus delicti is sufficient to support a conviction. (Rule 133, Section 3, RoC).

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His confession was captured on videotape and covered by the media nationwide. Appellant was detained at the police headquarters. The next two days, February 26 and 27, more newspaper, radio and television reporters came. Appellant was again interviewed and he affirmed his confession to the mayor and reenacted the crime. On arraignment, however, appellant entered a plea of "not guilty." He testified that in the afternoon of February 19, 1994 he was at his parent's house in Barangay Tangos attending the birthday party of his nephew. He, his wife and son went home after 5:00 P.M. His wife cooked dinner while he watched their one-year old son. They all slept at 8:00 P.M. and woke up the next day at 6:00 in the morning. His wife went to Manila to collect some debts while he and his son went to his parents' house where he helped his father cement the floor of the house. His wife joined them in the afternoon and they stayed there until February 24, 1994 when he was picked up by the police. Appellant was brought by the police to a hotel at Bagong Nayon, Baliuag. In one of the rooms, the policemen covered his face with a bedsheet and kicked him repeatedly. They coerced him to confess that he raped and killed Marianne. When he refused, they pushed his head into a toilet bowl and injected something into his buttocks. Weakened, appellant confessed to the crime. Thereafter, appellant was taken to his house where he saw two of his neighbors, Larin and Dizon. He was ordered by the police to go to the old toilet at the back of the house and get two bags from under the flower pot. Fearing for his life, appellant did as he was told. 1 Regional Trial court convicted appellant and sentenced him to death HELD: it cannot be successfully claimed that appellant's confession before the mayor is inadmissible. It is true that a municipal mayor has "operational supervision and control" over the local police and may arguably be deemed a law enforcement officer for purposes of applying Section 12 (1) and (3) of Article III of the Constitution. However, appellant's confession to the mayor was not made in response to any interrogation by the latter. 33 In fact, the mayor did not question appellant at all. No police authority ordered appellant to talk to the mayor. It was appellant himself who spontaneously, freely and voluntarily sought the mayor for a private meeting. The mayor did not know that appellant was going to confess his guilt to him. When appellant talked with the mayor as a confidant and not as a law enforcement officer, his uncounselled confession to him did not violate his constitutional rights. Thus, it has been held that the constitutional procedures on custodial investigation do not apply to a spontaneous statement, not elicited through questioning by the authorities, but given in an ordinary manner whereby appellant orally admitted having committed the crime. Hence, we hold that appellant's confession to the mayor was correctly admitted by the trial court. Appellant's confessions to the media were likewise properly admitted. The confessions were made in response to questions by news reporters, not by the police or any other investigating officer. We have held that statements spontaneously made by a suspect to news reporters on a televised interview are deemed voluntary and are admissible in evidence.

(Mayette N. Puentespina) 8. EXCLUSIONARY RULE

PEOPLE vs. ANDAN FACTS: The prosecution established that on February 19, 1994 at about 4:00 P.M., in Concepcion Subdivision, Baliuag, Bulacan, Marianne Guevarra, twenty years of age and a second-year student at the Fatima School of Nursing, left her home for her school dormitory. She was to prepare for her final examinations on February 21, 1994. Marianne wore a striped blouse and faded denim pants and brought with her two bags containing her school uniforms, some personal effects and more than P2,000.00 in cash. Marianne was walking along the subdivision when appellant invited her inside his house. He used the pretext that the blood pressure of his wife's grandmother should be taken. Marianne agreed to take her blood pressure as the old woman was her distant relative. She did not know that nobody was inside the house. Appellant then punched her in the abdomen, brought her to the kitchen and raped her. His lust sated, appellant dragged the unconscious girl to an old toilet at the back of the house and left her there until dark. Night came and appellant pulled Marianne, who was still unconscious, to their backyard. The yard had a pigpen bordered on one side by a six-foot high concrete fence. On the other side was a vacant lot. Appellant stood on a bench beside the pigpen and then lifted and draped the girl's body over the fence to transfer it to the vacant lot. When the girl moved, he hit her head with a piece of concrete block. He heard her moan and hit her again on the face. After silence reigned, he pulled her body to the other side of the fence, dragged it towards a shallow portion of the lot and abandoned it. At 11:00 A.M. of the following day, February 20, 1994, the body of Marianne was discovered. She was naked from the chest down with her brassiere and T-shirt pulled toward her neck. Nearby was found a panty with a sanitary napkin. The police tried to locate appellant and learned that his parents live in Barangay Tangos, Baliuag, Bulacan. On February 24 at 11:00 P.M., a police team led by Mayor Trinidad traced appellant in his parents' house. They took him aboard the patrol jeep and brought him to the police headquarters where he was interrogated. Initially, appellant denied any knowledge of Marianne's death. However, when the police confronted him with the concrete block, the victim's clothes and the bloodstains found in the pigpen, appellant relented and said that his neighbors, Gilbert Larin and Reynaldo Dizon, killed Marianne and that he was merely a lookout. He also said that he knew where Larin and Dizon hid the two bags of Marianne. Immediately, the police took appellant to his house. Larin and Dizon, who were rounded up earlier, were likewise brought there by the police. Appellant went to an old toilet at the back of the house, leaned over a flower pot and retrieved from a canal under the pot, two bags which were later identified as belonging to Marianne. Thereafter, photographs were taken of appellant and the two other suspects holding the bags. Mayor Trinidad arrived and proceeded to the investigation room. Upon seeing the mayor, appellant approached him and whispered a request that they talk privately. The mayor led appellant to the office of the Chief of Police and there, appellant broke down and said "Mayor, patawarin mo ako! I will tell you the truth. I am the one who killed Marianne." The mayor opened the door of the room to let the public and media representatives witness the confession. In the presence of the mayor, the police, representatives of the media and appellant's own wife and son, appellant confessed his guilt. He disclosed how he killed Marianne and volunteered to show them the place where he hid her bags. He asked for forgiveness from Larin and Dizon whom he falsely implicated saying he did it because of illfeelings against them. 11 He also said that the devil entered his mind because of the pornographic magazines and tabloid he read almost everyday.

LITO MARCELO vs. SANDIGANBAYAN Facts: On Februay 10, 1989, Jacinto Merete, a letter carrier in the Makati Central Post Office, disclosed to his chief, Projecto Tumagan, the existence of a group responsible for the pilferage of mail matter in the post office. For this reason, Tumagan sought the aid of the NBI in apprehending the group responsible for mail pilferage in the Makati Post Office. NBI Director Salvador Ranin dispatched NBI agents to Legaspi Village following a report that the group would stage a theft of mail matter on that day At 2:00 p.m., a postal delivery jeep, driven by one Henry Orindai, was parked in front of the Esguerra Building on Adelantado Street. Esguerra Building is located between Adelantado and Amorsolo Streets. Adelantado and Amorsolo Streets are parallel to each other. Pasicolan alighted from the jeep bringing with him a mail bag. Merete stayed inside the jeep. Pasicolan then passed through an alley between Esguerra and Montepino Buildings going towards Amorsolo St. Montepino Building is adjacent to Esguerra Building. The two are separated by the alley. Upon reaching Amorsolo St., Pasicolan gave

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the mail bag to two persons, who were later identified as Ronnie Romero and petitioner Lito Marcelo. The latter transferred the contents of the mail bag (i.e., assorted mail matter) to a travelling bag. The two then secured the bag to the back of their motorcycle. Meanwhile, the NBI team led by agent Vela, upon seeing Pasicolan going towards Amorsolo St., moved their car and started towards Amorsolo St. They were just in time to see Pasicolan handing over the mail bag to Marcelo and Romero. At that point, Atty. Sacaguing and Arles Vela arrested the two accused. Unaware of the arrest of Romero and Marcelo, Pasicolan went back to the postal delivery jeep and proceeded toward Pasay Road. The NBI agents followed the postal delivery jeep, overtook it, and arrested Pasicolan. The unsorted mail seized from Marcelo and Romero consisted of 622 letters. The names of the addresses were listed. They were subsequently notified by the Bureau of Posts to claim their letters. Many of them, after proper identification, were able to claim their letters. Some letters contained money. Romero, Marcelo, and Pasicolan were asked to affix their signatures on the envelopes of the letters. They did so in the presence of the members of the NBI Administrative and Investigative Staff and the people transacting business with the NBI at that time. According to Director Ranin, they required the accused to do this in order to identify the letters as the very same letters confiscated from them. NBI Director Ranin allegedly saw US dollar bills in various denominations of 20, 50, and 100 dollars. 14 Vela and the other NBI agents stated in their affidavits that there were dollar bills in the letters which, if converted to Philippine pesos, at the then exchange rate of P22 to US $1, were worth P11,000.00. the addressees agreed to leave the envelopes of the letters with the NBI. Those letters which was not claimed were opened in court in the presence of the counsel for the defense. The letters were found to contain three (3) one dollar bills, one (1) five dollar bill, one (1) twenty dollar bill, a check for twenty-five dollars, and fifty (50) Saudi Arabian riyals. The Sandiganbayan found all the accused guilty beyond reasonable doubt as principals of the crime of qualified theft HELD: The petitioner contends that the Sandiganbavan erred in admitting in evidence the letters signed by him because he was asked to sign them during custodial investigation without the assistance of counsel. Petitioner's counsel says that the signing of petitioner's and his coaccused's names was not a mere mechanical act but one which required the use of intelligence and therefore constitutes selfincrimination. To be sure, the use of specimen handwriting in Beltran case is different from the use of petitioner's signature in this case. In that case, the purpose was to show that the specimen handwriting matched the handwriting in the document alleged to have been falsified and thereby show that the accused was the author of the crime (falsification) while in this case the purpose for securing the signature of petitioner on the envelopes was merely to authenticate the envelopes as the ones seized from him and Ronnie Romero. However, this purpose and petitioner's signatures on the envelope, when coupled with the testimony of prosecution witnesses that the envelopes seized from petitioner were those given to him and Romero, undoubtedly help establish the guilt of petitioner. Since these signatures are actually evidence of admission obtained from petitioner and his coaccused under circumstances contemplated in Art. III, 12(I) and 17 of the Constitution, they should be excluded. For indeed, petitioner and his co-accused signed following their arrest. Hence, they were at the time under custodial investigation, defined as questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in a significant way. Under the Constitution, among the rights of a person under custodial investigation is the right to have competent and independent counsel preferably of his own choice and if the person cannot afford the services of counsel, that he must be provided with one. However, the letters are themselves not inadmissible in evidence. The Letters were validly seized from petitioner and Romero as an incident of a valid arrest. A ruling that petitioner's admission that the letters in question were those seized from him and his companion on February 17, 1989 is inadmissible in evidence does not extend to the exclusion from evidence of the letters themselves. The letters can stand on their own, being the fruits of the crime validly seized during a lawful arrest. That these letters were the ones found in the possession of petitioner and his companion and seized from them was shown by the testimonies of Vela and Tumagan. Indeed, petitioner and his coaccused were not convicted solely on the basis of the signatures found on the letters but on other evidence, notably the testimonies of NBI agents and other prosecution witnesses.

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PEOPLE VS. JANSON (2003) FACTS: In the evening of March 24, 1986, six (6) men came to the house of Cesario Alcantara threatening to strafe and burn it should they not be let in. Once inside, the masked group of men turned off the lights, hogtied Cesario, pushed him facedown and covered him with blankets. They asked for money and Teresa gave them P400. Teresa was then led to the kitchen. During this time, her daughter Marites was raped by four men. Then Marites was led to the kitchen where the culprits threatened to abduct her if her mother would not give them money. Teresa then gave them an additional P1,000 while the group took three wristwatches, one can of coffee, and one chicken. Then they left the house, all the while speaking in the Manobo dialect. Teresa identified appellants Janson and Pinantao as two of the men who robbed their house and raped her daughter that night. She testified that she knew appellants since they were their neighbors at Mateo. She also claimed that while Janson and Pinantao were masked during the incident, she recognized them through their body built, physical appearance, and their voices while speaking in Manobo. Appellant JOEL JANSON, for his own defense, declared that he was assisted by a lawyer when he was investigated and made to sign a sworn statement before the police on June 26, 1986. But he denied the accusation against him and claimed that he was not assisted by counsel during the custodial investigation. He claimed that he did not know how to read or write, and that he was made to execute a sworn statement before a certain policeman named Ulep. Only after the investigation did Atty. Zerrudo sign the document. On crossexamination, he said that he was put in jail for another crime, robbery ISSUE: (1) Was the guilt of appellants Janson and Pinantao proved beyond reasonable doubt? (2) Is the extrajudicial confession of Janson admissible as evidence for the prosecution? and (3) May said confession be used against co-accused Pinantao? HELD: Upon cross-examination, however, Marites admitted that she was not certain of the identity of her perpetrators at the time of the incident or immediately thereafter. According to her, it was only after Joel Janson was apprehended for another crime, and after he confessed to the police, that she was able to confirm her suspicion. When asked in open court, she was not able to satisfactorily explain the discrepancy in her initial sworn statement before the police and her testimony later. What stands out in the testimonies of the victims is that they were uncertain of the identities of the masked men who committed the robbery and rape that night and anchored their suspicion on the alleged confession of Joel Janson. This confession, however, is itself inadmissible for failing to meet the constitutional requirements for admissibility The investigating police officer, P/Sgt. Pedro Idpan, also admitted in open court that the sworn statement of appellant Joel Janson was taken without the presence of counsel and that this statement together with the waiver of his right to counsel, was already prepared when it was presented to Atty. Zerrudo for signing. Clearly, the alleged extrajudicial confession of appellant Joel Janson cannot be admitted in evidence. The manner by which it was obtained violated accuseds constitutional right to counsel. It is well-settled that the Constitution abhors an uncounselled confession or admission and whatever information is derived therefrom shall be regarded as inadmissible in evidence against the confessant. Under the Constitution and existing law as well as jurisprudence, a confession to be admissible must satisfy the following requirements: (1) it must be voluntary; (2) it must be made with the assistance of competent and independent counsel; (3) it must be express; and (4) it must be in writing. In this case, it cannot be said that the waiver of the right to counsel was made knowingly and intelligently. Appellant Joel Janson was illiterate, and a minor of sixteen (16) years at the time of the offense. As held in the case of People v. Bonola, where the accused was unschooled and only nineteen (19) years old when arrested, it is difficult to believe that considering the circumstances, the accused made an intelligent waiver of his right to counsel. In such instances, the need for counsel is more pronounced.

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

It is also important to mention that the investigating officers already had a prepared statement when they went to the lawyer who is supposed to assist appellant Janson in waiving his right to counsel. Finally, the invalid extrajudicial confession of Joel Janson cannot be used against Ricky Pinantao. An extrajudicial confession by an accused implicating another may not be utilized unless repeated in open court or when there is an opportunity for the co-accused to crossexamine the confessant on his extrajudicial statements. It is considered hearsay as against said co-accused under the res inter alios acta rule, which ordains that the rights of a party cannot be prejudiced by an act, declaration, or omission of another. For all the foregoing considerations, the judgment of the Regional Trial Court finding Janson and Pinantao guilty of the crime of robbery with rape fails to persuade us that appellants have been adequately identified as the perpetrators of the heinous offense. In our view, to affirm that judgment of conviction on the basis of contradictory testimony of prosecution witnesses and the flawed extrajudicial confession of appellant Joel Janson is to sanction a possible miscarriage of justice. (Maggie Quidet)

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shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required." Respondent Mark B. Jimenez maintains that this constitutional provision secures the right to bail of all persons, including those sought to be extradited. On the other hand, petitioner claims that there is no provision in the Philippine Constitution granting the right to bail to a person who is the subject of an extradition request and arrest warrant. We agree with petitioner. As suggested by the use of the word "conviction," the constitutional provision on bail quoted above, as well as Section 4 of Rule 114 of the Rules of Court, applies only when a person has been arrested and detained for violation of Philippine criminal laws. It does not apply to extradition proceedings, because extradition courts do not render judgments of conviction or acquittal. Moreover, the constitutional right to bail "flows from the presumption of innocence in favor of every accused who should not be subjected to the loss of freedom as thereafter he would be entitled to acquittal, unless his guilt be proved beyond reasonable doubt. It follows that the constitutional provision on bail will not apply to a case like extradition, where the presumption of innocence is not at issue. The provision in the Constitution stating that the "right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended" does not detract from the rule that the constitutional right to bail is available only in criminal proceedings. It must be noted that the suspension of the privilege of the writ of habeas corpus finds application "only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion." Hence, the second sentence in the constitutional provision on bail merely emphasizes the right to bail in criminal proceedings for the aforementioned offenses. It cannot be taken to mean that the right is available even in extradition proceedings that are not criminal in nature. That the offenses for which Jimenez is sought to be extradited are bailable in the United States is not an argument to grant him one in the present case. To stress, extradition proceedings are separate and distinct from the trial for the offenses for which he is charged. He should apply for bail before the courts trying the criminal cases against him, not before the extradition court. The rule, we repeat, is that bail is not a matter of right in extradition cases. However, the judiciary has the constitutional duty to curb grave abuse of discretion and tyranny, as well as the power to promulgate rules to protect and enforce constitutional rights. Furthermore, we believe that the right to due process is broad enough to include the grant of basic fairness to extraditees. Indeed, the right to due process extends to the "life, liberty or property" of every person. It is "dynamic and resilient, adaptable to every situation calling for its application." Accordingly and to best serve the ends of justice, we believe and so hold that, after a potential extraditee has been arrested or placed under the custody of the law, bail may be applied for and granted as an exception, only upon a clear and convincing showing (1) that, once granted bail, the applicant will not be a flight risk or a danger to the community; and (2) that there exist special, humanitarian and compelling circumstances including, as a matter of reciprocity, those cited by the highest court in the requesting state when it grants provisional liberty in extradition cases therein. Since this exception has no express or specific statutory basis, and since it is derived essentially from general principles of justice and fairness, the applicant bears the burden of proving the above two-tiered requirement with clarity, precision and emphatic forcefulness. The Court realizes that extradition is basically an executive, not a judicial, responsibility arising from the presidential power to conduct foreign relations. In its barest concept, it partakes of the nature of police assistance amongst states, which is not normally a judicial prerogative. Hence, any intrusion by the courts into the exercise of this power should be characterized by caution, so that the vital international and bilateral interests of our country will not be unreasonably impeded or compromised. In short, while this Court is ever protective of "the sporting idea of fair play," it also recognizes the limits of its own prerogatives and the need to fulfill international obligations. WHEREFORE, the Petition is GRANTED. The assailed RTC Order dated May 23, 2001 is hereby declared NULL and VOID, while the challenged Order dated July 3, 2001 is SET ASIDE insofar as it granted bail to Respondent Mark Jimenez. The bail bond posted by private respondent is CANCELLED.

1.

VII. RIGHT TO BAIL When Right May be Invoked

G.R. No. 148571 September 24, 2002 GOVERNMENT OF THE UNITED STATES OF AMERICA, Represented by the Philippine Department of Justice, petitioner, vs. HON. GUILLERMO PURGANAN, Presiding Judge Regional Trial Court of Manila and MARC JIMENEZ a.k.a. MARCIO BATACAN CRESPO, respondent Facts: Pursuant to the existing RP-US Extradition Treaty, the US Govt, thru diplomatic channels, sent to the Phil. Govt Note Verbale No. 0522 dated June 16, 1999, supplemented by Note Nos. 0597, 0720 and 0809 and accompanied by duly authenticated documents requesting the extradition of Mark B. Jimenez, also known as Mario Batacan Crespo. Upon receipt of the Notes and documents, the secretary of foreign affairs (SFA) transmitted them to the secretary of justice (SOJ) for appropriate action, pursuant to Section 5 of Presidential Decree (PD) No. 1069, also known as the Extradition Law. Upon learning of the request for his extradition, Jimenez sought and was granted a Temporary Restraining Order (TRO) by the RTC of Manila, Branch 25. The SOJ was ordered to furnish private respondent copies of the extradition request and its supporting papers and to grant the latter a reasonable period within which to file a comment and supporting evidence. The Govt. of the USA, represented by the Philippine DOJ, filed with the RTc, the appropriate Petition for Extradition. Before the RTC could act on the Petition, Respondent Jimenez filed before it an "Urgent Manifestation/Ex-Parte Motion," which prayed that petitioners application for an arrest warrant be set for hearing. In its assailed May 23, 2001 Order, the RTC granted the Motion of Jimenez and set the case for hearing on June 5, 2001. In that hearing, petitioner manifested its reservations on the procedure adopted by the trial court allowing the accused in an extradition case to be heard prior to the issuance of a warrant of arrest. After the hearing, the court a quo required the parties to submit their respective memoranda. In his Memorandum, Jimenez sought an alternative prayer: that in case a warrant should issue, he be allowed to post bail in the amount of P100,000. The alternative prayer of Jimenez was also set for hearing on June 15, 2001. Thereafter, the court below issued its questioned July 3, 2001 Order, directing the issuance of a warrant for his arrest and fixing bail for his temporary liberty at one million pesos in cash. Hence, this Petition. Issue: WON he (Jimenez) is entitled to bail and to provisional liberty while the extradition proceedings are pending. Held: No. Article III, Section 13 of the Constitution, is worded as follows: Art. III, Sec. 13. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail

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-oXoG.R. No. 149723 October 27, 2006 PEOPLE OF THE PHILIPPINES, vs. VICTOR KEITH FITZGERALD, respondent.

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the accused has remained strong. In the present case, no new evidence had since been introduced, nor hearing conducted as would diminish the earlier findings of the RTC and CA on the existence of strong evidence against respondent. In sum, the circumstances of the case are such that for respondent, bail was not a matter of right but a mere privilege subject to the discretion of the CA to be exercised in accordance with the stringent requirements of Sec. 5, Rule 114. And Sec. 5 directs the denial or revocation of bail upon evidence of the existence of any of the circumstances enumerated therein such as those indicating probability of flight if released on bail or undue risk that the accused may commit another crime during the pendency of the appeal. As it is, however, the CA, in its August 31, 2001 Resolution, admitted respondent to bail based, "xxx not on the grounds stated in his Motion for Bail xxx," but "xxx primarily [on] the fact that [he] is already of old age and is not in the best of health xxx," and notwithstanding its finding that "xxx as it is, the evidence of guilt is strong xxx." The Resolution disregarded substantive and procedural requirements on bail. It is bad enough that the CA granted bail on grounds other than those stated in the Motion filed by respondent; it is worse that it granted bail on the mere claim of the latter's illness. Bail is not a sick pass for an ailing or aged detainee or prisoner needing medical care outside the prison facility. A mere claim of illness is not a ground for bail. It may be that the trend now is for courts to permit bail for prisoners who are seriously sick. There may also be an existing proposition for the "selective decarceration of older prisoners" based on findings that recidivism rates decrease as age increases. But, in this particular case, the CA made no specific finding that respondent suffers from an ailment of such gravity that his continued confinement during trial will permanently impair his health or put his life in danger. It merely declared respondent not in the best of health even when the only evidence on record as to the latter's state of health is an unverified medical certificate stating that, as of August 30, 2000, respondent's condition required him to "xxx be confined in a more sterile area xxx." That medical recommendation was even rebuffed by the CA itself when, in its November 13, 2000 Resolution, it held that the physical condition of respondent does not prevent him from seeking medical attention while confined in prison. Moreover, there is a finding of record on the potential risk of respondent committing a similar offense. In its August 1, 1996 Order, the RTC noted that the circumstances of respondent indicate an undue risk that he would commit a similar offense, if released on bail pending appeal. The foregoing finding was not traversed or overturned by the CA in its questioned Resolution. Such finding, therefore, remains controlling. It warranted the outright denial of respondent's bail application. The CA, therefore, erred when it granted respondent's Motion for Bail. -oXoG.R. No. 157977 February 27, 2006 EDUARDO TOLENTINO RODRIGUEZ and IMELDA GENER RODRIGUEZ, Petitioners, vs. THE HONORABLE PRESIDING JUDGE OF THE REGIONAL TRIAL COURT OF MANILA BRANCH 17, GOVERNMENT OF THE UNITED STATES OF AMERICA, represented by the Philippine Department of Justice, and DIRECTOR OF NATIONAL BUREAU OF INVESTIGATION, Respondents. Facts: The case stemmed from the petition for extradition filed on March 12, 2001 by the Government of the United States of America (US government) through the Department of Justice (DOJ) against the petitioners. After their arrest, petitioners applied for bail which the trial court granted on September 25, 2001. The bail was set for one million pesos for each. Petitioners then posted cash bonds. The US government moved for reconsideration of the grant of bail, but the motion was denied by the trial court. Unsatisfied, the US government filed a petition for certiorari with this Court. Thereafter, we directed the trial court to resolve the matter of bail which, according to its November 28, 2001 Order,3 shall be subject to whatever ruling that this Court may have in the similar case of Mark Jimenez entitled Government of the United States of America v. Purganan,4 docketed as G.R No. 148571. In compliance with our directive, the trial court, without prior notice and hearing, cancelled

petitioner,

Facts: An Information filed with the Regional Trial Court (RTC), Branch 75, Olongapo City and docketed as Criminal Case No. 422-94, charged Fitzgerald, an Australian citizen, with Violation of Art. III, Section 5, paragraph (a), subparagraph (5) of Republic Act (R.A.) No. 7610. After trial and hearing, the RTC rendered a Decision finding the accused Victor Keith Fitzgerald GUILTY beyond reasonable doubt. In Criminal Case No. 419-94 for Rape, the accused is acquitted. Fitzgerald applied for bail, which the RTC denied. Fitzgerald appealed to the CA which affirmed the RTC Decision. Fitzgerald filed a Motion for New Trial and a Supplemental to Accused's Motion for New Trial on the ground that new and material evidence not previously available had surfaced. The CA granted the Motion for New Trial. On December 3, 2000, Fitzgerald filed with the CA a Motion for Early Transmittal of the Records and for the Re-Examination of the Penalty Imposed, and a Motion for Bail. On August 31, 2001, the CA issued the herein assailed Resolution granting Fitzgerald's bail application. Hence, the People filed this Petition to have the August 31, 2001 CA Resolution annulled and set aside. Petitioner argues that the CA erred in granting respondent Fitzgerald's Motion for Bail despite the fact that the latter was charged with a crime punishable by reclusion perpetua and the evidence of his guilt is strong. It also questions the jurisdiction of the CA to act on said Motion, considering that the case had been remanded to the RTC for new trial. Issue: WON the CA erred in granting respondents motion for bail. Held: Yes. The petition is meritorious. The right to bail emenates from of the right to be presumed innocent. It is accorded to a person in the custody of the law who may, by reason of the presumption of innocence he enjoys, be allowed provisional liberty upon filing of a security to guarantee his appearance before any court, as required under specified conditions. Implementing Sec. 13, Article III of the 1987 Constitution, Sections 4 and 5, Rule 114 of the 2000 Rules of Criminal Procedure set forth substantive and procedural rules on the disposition of bail applications. Sec. 4 provides that bail is a matter of right to an accused person in custody for an offense not punishable by death, reclusion perpetua or life imprisonment, but a matter of discretion on the part of the court, concerning one facing an accusation for an offense punishable by death, reclusion perpetua or life imprisonment when the evidence of his guilt is strong. As for an accused already convicted and sentenced to imprisonment term exceeding six years, bail may be denied or revoked based on prosecution evidence as to the existence of any of the circumstances under Sec. 5, paragraphs (a) to (e). It will be recalled that herein respondent was charged with violation of Section 5, par. (a), sub-paragraph (5), Article III of R.A. No. 7610, a crime which carries the maximum penalty of reclusion perpetua. He was later convicted by the RTC for a lesser crime which carried a sentence of imprisonment for an indeterminate term of eight (8) years and one (1) day of prision mayor as minimum, to seventeen (17) years, four (4) months and one (1) day of reclusion temporal as maximum. These circumstances are not altered when the CA granted a new trial. As already discussed, the CA retained appellate jurisdiction over the case even as it ordered the remand of the original records thereof to the RTC for reception of evidence. In retaining appellate jurisdiction, it set aside only its own September 27, 1999 Decision but left unaltered the May 7, 1996 RTC Decision. The said decision, therefore, remained operative. And under said Decision, respondent stood sentenced to an imprisonment term exceeding six years. Moreover, both the RTC and CA were unanimous in their findings of the existence of strong evidence of the guilt of respondent. These findings were not overturned when the CA granted a new trial. Under Section 6 (b), Rule 121, the grant of a new trial allows for reception of newly-discovered evidence but maintains evidence already presented or on record. And if there has been a finding that evidence is strong and sufficient to bar bail, that too subsists unless, upon another motion and hearing, the prosecution fails to prove that the evidence against

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

the cash bond of the petitioners and ordered the issuance of a warrant of arrest. Petitioners filed a very urgent motion for the reconsideration of the cancellation of their bail. The motion was heard and denied on May 9, 2003. Hence, this instant petition. Issue: WON prior notice and hearing is required before bail is cancelled. ---Yes. What constitutes a "special circumstance" to be exempt from the no-bail rule in extradition cases? Held: The issue of prior notice and hearing in extradition cases is not new. In Secretary of Justice v. Lantion,11 by a vote of nine to six, we initially ruled that notice and hearing should be afforded the extraditee even when a possible extradition is still being evaluated.12 The Court, deliberating on a motion for reconsideration also by a vote of nine to six, qualified and declared that prospective extraditees are entitled to notice and hearing only when the case is filed in court and not during the process of evaluation. In Purganan, we said that a prospective extraditee is not entitled to notice and hearing before the issuance of a warrant of arrest, because notifying him before his arrest only tips him of his pending arrest. But this is for cases pending the issuance of a warrant of arrest, not in a cancellation of a bail that had been issued after determination that the extraditee is a no-flight risk. The policy is that a prospective extraditee is arrested and detained to avoid his flight from justice.15 On the extraditee lies the burden of showing that he will not flee once bail is granted.16 If after his arrest and if the trial court finds that he is no flight risk, it grants him bail. The grant of the bail, presupposes that the co-petitioner has already presented evidence to prove her right to be on bail, that she is no flight risk, and the trial court had already exercised its sound discretion and had already determined that under the Constitution and laws in force, co-petitioner is entitled to provisional release. Under these premises, and with the trial courts knowledge that in this case, co-petitioner has offered to go on voluntary extradition; that she and her husband had posted a cash bond of P1 million each; that her husband had already gone on voluntary extradition and is presently in the USA undergoing trial; that the passport of co-petitioner is already in the possession of the authorities; that she never attempted to flee; that there is an existing hold-departure order against her; and that she is now in her sixties, sickly and under medical treatment, we believe that the benefits of continued temporary liberty on bail should not be revoked and their grant of bail should not be cancelled, without the copetitioner being given notice and without her being heard why her temporary liberty should not be discontinued. We emphasize that bail may be granted to a possible extraditee only upon a clear and convincing showing (1) that he will not be a flight risk or a danger to the community, and (2) that there exist special, humanitarian and compelling circumstances. The trial courts immediate cancellation of the bail of petitioners is contrary to our ruling in Purganan, and it had misread and misapplied our directive therein. (Charmee Abad) GOVT. OF HONGKONG vs. OLALIA 521 SCRA 470 (2007) PEOPLE vs. SANDIGANBAYAN 529 SCRA 764 (2007) (Maggie Quidet) LAARNI N. VALERIO VS. COURT OF APPEALS, HON. JUDGE MA. THERESA L. DELA TORRE-YADAO, RTC - Branch 81, QUEZON CITY and MILAGROS MYLA VALERIO G.R. Nos. 164311-12 (2007) FACTS: On March 18, 2000, Jun Valerio, Chief of the Office of the Government Corporate Counsel, was shot and killed in front of his house at No. 82 Mapang-akit St., Diliman, Quezon City. An Information for murder was filed against Antonio E. Cabador, Martin M. Jimenez, Samuel C. Baran, and Geronimo S. Quintana; while an Information for parricide was filed against the victims wife, Milagros E. Valerio. Milagros filed an application for bail claiming that the evidence of guilt against her was not strong. The prosecution, on the other hand,

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moved to discharge accused Samuel Baran and to have him as state witness. Meanwhile, Antonio Cabador was arrested. In his sworn statement, he stated that it was Milagros who planned the murder of Jun Valerio. Further, Antonio pleaded guilty to the charge of murder. The RTC granted Milagros application for bail, but denied the motion to convert Samuel as state witness. On March 5, 2002, Milagros posted a bailbond furnished by Central Surety and Insurance Company, and was ordered released. Herein petitioners, Laarni N. Valerio, sister of the victim, and the People of the Philippines, elevated the case to the Court of Appeals ascribing grave abuse of discretion to the RTC judge for granting Milagros bail and for denying the motion to convert Samuel as state witness. In its assailed Decision, the appellate court found no grave abuse of discretion committed by the RTC. ISSUES: In sum, the basic issues for our resolution are: (1) whether Milagros is entitled to bail; and (2) whether Samuel should be discharged as accused and be converted as state witness. RULING: Petitioners contend that Milagros is not entitled to bail as the evidence of guilt against her is strong. They bank on the testimony of Modesto Cabador that he heard Milagros impatiently ask Antonio about their plot to kill Jun Valerio. They maintain that Milagros unrestrained behavior in front of Modesto was not unusual considering Milagros desperation and the fact that Modesto is Antonios cousin. Petitioners point out that Milagros high level of education, social orientation, or breeding does not prevent her from committing parricide. Petitioners aver that the inconsistencies in Modestos testimony involve only minor details and collateral matters. Petitioners also assert that Antonios plea of guilty to the charge of conspiring with Milagros in the murder of Jun Valerio indicated strong evidence of guilt against Milagros. Petitioners further allege that Samuels testimony is not merely corroborative of Modestos testimony. Petitioners insist the testimonies of Samuel and Modesto differ on material points and are both indispensable to the prosecution. Petitioners contend that Samuels testimony is absolutely necessary as he alone has knowledge that Antonio and Milagros carried out their plan to kill Jun Valerio, and that Martin Jimenez and Geronimo Quintana participated in the killing. According to petitioners, Samuel does not appear to be the most guilty; thus, he should be converted as state witness. Milagros, however, counters that she is entitled to bail as a matter of right because the evidence of guilt against her is not strong. She stresses that the trial courts determination of the credibility of Samuel and Modesto deserves the highest respect because it has the peculiar advantage of hearing their testimonies and observing their deportment and manner of testifying. Milagros maintains there is no absolute necessity for Samuels testimony, which she claims to be pure hearsay. The consolidated petitions are impressed with merit. Bail is not a matter of right in cases where the person is charged with a capital offense or an offense punishable by reclusion perpetua or life imprisonment. Article 114, Section 7 of the Revised Rules of Criminal Procedure, states, No person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, shall be admitted to bail when the evidence of guilt is strong, regardless of the stage of the criminal action. In this case, the trial court had disregarded the glaring fact that the killer himself has confessed to the crime and has implicated Milagros as the mastermind. When taken in conjunction with the other evidence on record, these facts show very strongly that Milagros may have participated as principal by inducement in the murder of Jun Valerio. It was thus a grave error or a grave abuse of discretion committed by the trial court to grant her application for bail. The appellate court clearly committed a reversible error in affirming the trial courts decision granting bail to Milagros Valerio. ANTONIO F. TRILLANES IV vs. HON. OSCAR PIMENTEL, GEN. HERMOGENES ESPERON, VICE ADM. ROGELIO I. CALUNSAG, MGEN. BENJAMIN DOLORFINO, AND LT. COL. LUCIARDO OBEA G.R. No. 179817 FACTS: At the wee hours of July 27, 2003, a group of more than 300 heavily armed soldiers led by junior officers of the Armed Forces of the Philippines (AFP) stormed into the Oakwood Premier

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

Apartments in Makati City and publicly demanded the resignation of the President and key national officials. Later in the day, President Gloria Macapagal Arroyo issued Proclamation No. 427 and General Order No. 4 declaring a state of rebellion and calling out the Armed Forces to suppress the rebellion. A series of negotiations quelled the teeming tension and eventually resolved the impasse with the surrender of the militant soldiers that evening. In the aftermath of this eventful episode dubbed as the Oakwood Incident, petitioner Antonio F. Trillanes IV was charged, along with his comrades, with coup detat defined under Article 134-A of the Revised Penal Code before the Regional Trial Court (RTC) of Makati. The case was docketed as Criminal Case No. 03-2784, People v. Capt. Milo D. Maestrecampo, et al. Close to four years later, petitioner, who has remained in detention, threw his hat in the political arena and won a seat in the Senate with a six-year term commencing at noon on June 30, 2007. Before the commencement of his term or on June 22, 2007, petitioner filed with the RTC, Makati City, Branch 148, an Omnibus Motion for Leave of Court to be Allowed to Attend Senate Sessions and Related Requests (Omnibus Motion). Among his requests were:

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morning (9:00 or 10:00 a.m.) of 23 July 2007 at the Senate of the Philippines located at the GSIS Financial Center, Pasay City. By Order of July 25, 2007, the trial court denied all the requests in the Omnibus Motion. Hence, the present petition for certiorari and for prohibition and mandamus to (i) enjoin respondents from banning the Senate staff, resource persons and guests from meeting with him or transacting business with him in his capacity as Senator; and (ii) direct respondents to allow him access to the Senate staff, resource persons and guests and permit him to attend all sessions and official functions of the Senate. Petitioner preliminarily prayed for the maintenance of the status quo ante of having been able hitherto to convene his staff, resource persons and guests at the Marine Brig. I. THE JURISPRUDENCE CITED BY THE HONORABLE COURT A QUO IS CLEARLY INAPPLICABLE TO THE INSTANT CASE BECAUSE OF THE FOLLOWING REASONS: A. UNLIKE IN THIS CASE, THE ACCUSED IN THE JALOSJOS CASE WAS ALREADY CONVICTED AT THE TIME HE FILED HIS MOTION. IN THE INSTANT CASE, ACCUSED/PETITIONER HAS NOT BEEN CONVICTED AND, THEREFORE, STILL ENJOYS THE PRESUMPTION OF INNOCENCE; B. THE ACCUSED IN THE JALOJOS (SIC) CASE WAS CHARGED WITH TWO (2) COUNTS OF STATUTORY RAPE AND SIX (6) COUNTS OF ACTS OF LASCIVIOUSNESS, CRIMES INVOLVING MORAL TURPITUDE. HEREIN ACCUSED/PETITIONER IS CHARGED WITH THE OFFENSE OF COUP DETAT, A CHARGE WHICH IS COMMONLY REGARDED AS A POLITICAL OFFENSE; C. THE ACCUSED IN THE JALOSJOS CASE ATTEMPTED TO FLEE PRIOR TO BEING ARRESTED. THE ACCUSED/ PETITIONER VOLUNTARILY SURRENDERED TO THE AUTHORITIES AND AGREED TO TAKE RESPONSIBILITY FOR HIS ACTS AT OAKWOOD; The petition is bereft of merit. In attempting to strike a distinction between his case and that of Jalosjos, petitioner chiefly points out that former Rep. Romeo Jalosjos (Jalosjos) was already convicted, albeit his conviction was pending appeal, when he filed a motion similar to petitioners Omnibus Motion, whereas he (petitioner) is a mere detention prisoner. He asserts that he continues to enjoy civil and political rights since the presumption of innocence is still in his favor. Further, petitioner illustrates that Jalosjos was charged with crimes involving moral turpitude, i.e., two counts of statutory rape and six counts of acts of lasciviousness, whereas he is indicted for coup detat which is regarded as a political offense. Furthermore, petitioner justifies in his favor the presence of noble causes in expressing legitimate grievances against the rampant and institutionalized practice of graft and corruption in the AFP. In sum, petitioners first ground posits that there is a world of difference between his case and that of Jalosjos respecting the type of offense involved, the stage of filing of the motion, and other circumstances which demonstrate the inapplicability of Jalosjos. A plain reading of. Jalosjos suggests otherwise, however. The distinctions cited by petitioner were not elemental in the pronouncement in Jalosjos that election to Congress is not a

(a)

To be allowed to go to the Senate to attend all official functions of the Senate (whether at the Senate or elsewhere) particularly when the Senate is in session, and to attend the regular and plenary sessions of the Senate, committee hearings, committee meetings, consultations, investigations and hearings in aid of legislation, caucuses, staff meetings, etc. (b) To be allowed to set up a working area at his place of detention at the Marine Brig, Marine Barracks Manila, Fort Bonifacio, Taguig City, with a personal desktop computer and the appropriate communications equipment (i.e., a telephone line and internet access) in order that he may be able to work there when there are no sessions, meetings or hearings at the Senate or when the Senate is not in session. The costs of setting up the said working area and the related equipment and utility costs can be charged against the budget/allocation of the Office of the accused from the Senate; (c) To be allowed to receive members of his staff at the said working area at his place of detention at the Marine Brig, Marine Barracks Manila, Fort Bonifacio, Taguig City, at reasonable times of the day particularly during working days for purposes of meetings, briefings, consultations and/or coordination, so that the latter may be able to assists (sic) him in the performance and discharge of his duties as a Senator of the Republic; (d) To be allowed to give interviews and to air his comments, reactions and/or opinions to the press or the media regarding the important issues affecting the country and the public while at the Senate or elsewhere in the performance of his duties as Senator to help shape public policy and in the light of the important role of the Senate in maintaining the system of checks and balance between the three (3) co-equal branches of Government; (e) With prior notice to the Honorable Court and to the accused and his custodians, to be allowed to receive, on Tuesdays and Fridays, reporters and other members of the media who may wish to interview him and/or to get his comments, reactions and/or opinion at his place of confinement at the Marine Brig, Marine Barracks Manila, Fort Bonifacio, Taguig City, particularly when there are no sessions, meetings or hearings at the Senate or when the Senate is not in session; and (f) To be allowed to attend the organizational meeting and election of officers of the Senate and related activities scheduled in the

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reasonable classification in criminal law enforcement as the functions and duties of the office are not substantial distinctions which lift one from the class of prisoners interrupted in their freedom and restricted in liberty of movement. It cannot be gainsaid that a person charged with a crime is taken into custody for purposes of the administration of justice. No less than the Constitution provides: All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required. The Rules also state that no person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, shall be admitted to bail when evidence of guilt is strong, regardless of the stage of the criminal action. That the cited provisions apply equally to rape and coup detat cases, both being punishable by reclusion perpetua, is beyond cavil. Within the class of offenses covered by the stated range of imposable penalties, there is clearly no distinction as to the political complexion of or moral turpitude involved in the crime charged. In the present case, it is uncontroverted that petitioners application for bail and for release on recognizance was denied. The determination that the evidence of guilt is strong, whether ascertained in a hearing of an application for bail or imported from a trial courts judgment of conviction, justifies the detention of an accused as a valid curtailment of his right to provisional liberty. This accentuates the proviso that the denial of the right to bail in such cases is regardless of the stage of the criminal action. Such justification for confinement with its underlying rationale of public self-defense applies equally to detention prisoners like petitioner or convicted prisoners-appellants like Jalosjos. As the Court observed in Alejano v. Cabuay it is impractical to draw a line between convicted prisoners and pre-trial detainees for the purpose of maintaining jail security; and while pre-trial detainees do not forfeit their constitutional rights upon confinement, the fact of their detention makes their rights more limited than those of the public. The Court was more emphatic in People v. Hon. Maceda As a matter of law, when a person indicted for an offense is arrested, he is deemed placed under the custody of the law. He is placed in actual restraint of liberty in jail so that he may be bound to answer for the commission of the offense. He must be detained in jail during the pendency of the case against him, unless he is authorized by the court to be released on bail or on recognizance. Let it be stressed that all prisoners whether under preventive detention or serving final sentence can not practice their profession nor engage in any business or occupation, or hold office, elective or appointive, while in detention. This is a necessary consequence of arrest and detention. (Underscoring supplied) These inherent limitations, however, must be taken into account only to the extent that confinement restrains the power of locomotion or actual physical movement. It bears noting that in Jalosjos, which was decided en banc one month after Maceda, the Court recognized that the accused could somehow accomplish legislative results. The trial court thus correctly concluded that the presumption of innocence does not carry with it the full enjoyment of civil and political rights. Petitioner is similarly situated with Jalosjos with respect to the application of the presumption of innocence during the period material to the resolution of their respective motions. The Court in Jalosjos did not mention that the presumption of innocence no longer operates in favor of the accused pending the review on appeal of the judgment of conviction. The rule stands that until a promulgation of final conviction is made, the constitutional mandate of presumption of innocence prevails. In addition to the inherent restraints, the Court notes that petitioner neither denied nor disputed his agreeing to a consensus with the prosecution that media access to him should cease after his proclamation by the Commission on Elections. Petitioner goes on to allege that unlike Jalosjos who attempted to evade trial, he is not a flight risk since he voluntarily surrendered to the proper authorities and such can be proven by the numerous times he was allowed to travel outside his place of detention.

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Subsequent events reveal the contrary, however. The assailed Orders augured well when on November 29, 2007 petitioner went past security detail for some reason and proceeded from the courtroom to a posh hotel to issue certain statements. The account, dubbed this time as the Manila Pen Incident, proves that petitioners argument bites the dust. The risk that he would escape ceased to be neither remote nor nil as, in fact, the cause for foreboding became real. Moreover, circumstances indicating probability of flight find relevance as a factor in ascertaining the reasonable amount of bail and in canceling a discretionary grant of bail. In cases involving nonbailable offenses, what is controlling is the determination of whether the evidence of guilt is strong. Once it is established that it is so, bail shall be denied as it is neither a matter of right nor of discretion. Second, petitioner posits that, contrary to the trial courts findings, Esperon did not overrule Obeas recommendation to allow him to attend Senate sessions. Petitioner cites the Comment of Obea that he interposed no objection to such request but recommended that he be transported by the Senate Sergeant-at-Arms with adequate Senate security. And petitioner faults the trial court for deeming that Esperon, despite professing non-obstruction to the performance of petitioners duties, flatly rejected all his requests, when what Esperon only disallowed was the setting up of a political office inside a military installation owing to AFPs apolitical nature. The effective management of the detention facility has been recognized as a valid objective that may justify the imposition of conditions and restrictions of pre-trial detention. The officer with custodial responsibility over a detainee may undertake such reasonable measures as may be necessary to secure the safety and prevent the escape of the detainee. Nevertheless, while the comments of the detention officers provide guidance on security concerns, they are not binding on the trial court in the same manner that pleadings are not impositions upon a court. Lastly, petitioner pleads for the same liberal treatment accorded certain detention prisoners who have also been charged with nonbailable offenses, like former President Joseph Estrada and former Governor Nur Misuari who were allowed to attend social functions. Finding no rhyme and reason in the denial of the more serious request to perform the duties of a Senator, petitioner harps on an alleged violation of the equal protection clause. Emergency or compelling temporary leaves from imprisonment are allowed to all prisoners, at the discretion of the authorities or upon court orders. That this discretion was gravely abused, petitioner failed to establish. In fact, the trial court previously allowed petitioner to register as a voter in December 2006, file his certificate of candidacy in February 2007, cast his vote on May 14, 2007, be proclaimed as senator-elect, and take his oath of office on June 29, 2007. In a seeming attempt to bind or twist the hands of the trial court lest it be accused of taking a complete turn-around, petitioner largely banks on these prior grants to him and insists on unending concessions and blanket authorizations. Petitioners position fails. On the generality and permanence of his requests alone, petitioners case fails to compare with the species of allowable leaves. Jaloslos succinctly expounds: x x x Allowing accused-appellant to attend congressional sessions and committee meetings for five (5) days or more in a week will virtually make him a free man with all the privileges appurtenant to his position. Such an aberrant situation not only elevates accusedappellants status to that of a special class, it also would be a mockery of the purposes of the correction system.

3.

BAIL IN MILITARY COURTS

COMENDADOR VS. DEVILLA 200SCRA 80 (1991) FACTS: The petitioners in G.R. Nos. 93177 and 96948 and the private respondents in G.R. Nos. 95020 and 97454 are officers of the Armed Forces of the Philippines facing prosecution for their alleged participation in the failed coup d' etat that took place on December 1 to 9, 1989. The charges against them are violation of Articles of War (AW) 67 (Mutiny), AW 96 (Conduct Unbecoming an Officer and a Gentleman)

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and AW 94 (Various Crimes) in relation to Article 248 of the Revised Penal Code (Murder). In G.R. No. 93177, which is a petition for certiorari , prohibition and mandamus , they are questioning the conduct of the Pre-Trial Investigation PTI Panel constituted to investigate the charges against them and the creation of the General Court Martial GCM convened to try them. In G.R. No. 96948, the petitioners, besides challenging the legality of GCM No. 14, seek certiorari against its ruling denying them the right to peremptory challenge as granted by Article 18 of Com. Act No. 408. In G.R. No. 95020, the orders of the respondent judge of the Regional Trial Court of Quezon City are assailed on certiorari on the ground that he has no jurisdiction over GCM No. 14 and no authority either to set aside its ruling denying bail to the private respondents. In G.R. No. 97454, certiorari is also sought against the decision of the Regional Trial Court of Quezon City in a petition for habeas corpus directing the release of the private respondents. Jurisdictional objections are likewise raised as in G.R. No. 95020. At the first scheduled hearing, the petitioners challenged the proceedings on various grounds, prompting the PTI Panel to grant them 10 days within which to file their objections in writing This was done through a Motion for Summary Dismissal dated February 21, 1990. In a resolution dated February 27,1990, the PTI Panel denied the motion and gave the petitioners 5 days from notice to submit their respective counter-affidavits and the affidavits of their witnesses. On March 7, 1990, the petitioners verbally moved for reconsideration of the foregoing denial and the PTI Panel gave them 7 days within which to reduce their motion to writing. This was done on March 14,1990. The petitioners now claim that there was no pre-trial investigation of the charges as mandated by Article of War 71. In G.R. No. 95020, Ltc Jacinto Ligot applied for bail on June 5, 1990, but the application was denied by GCM No.14. He thereupon filed with the Regional Trial Court of Quezon City a petition for certiorari and mandamus with prayer for provisional liberty and a writ of preliminary injunction. After considering the petition and the answer thereto filed by the president and members of GCM No.14, Judge Maximiano C. Asuncion issued an order granting provisional liberty to Ligot. On July 28, 1990, Ligot filed an urgent omnibus motion to enforce the order for his release and to declare in contempt the commanding officer of the PC/INP Jail for disobey 'ng the said order. He later also complained that Generals De Villa and Aguirre had refused to release him "pending final resolution of the appeal to be taken" to this Court. After hearing, the trial court reiterated its order for the provisional liberty of Ligot, as well as of intervenors Ltc Franklin Brawner, Lt/Col. Arsenio Tecson and Maj. Alfredo Oliveros, and later of additional intervenors Ltc Romelino Gojo and Capt. Manuel Ison. On August 22, 1990, the trial court rendered judgment inter alia: (a) Declaring, that Section 13, Article III of the Constitution granting the right to bail to all persons with the defined exception is applicable and covers all military men facing court-martial proceedings. Accordingly, the assailed orders of General Court- Martial No. 14 denying bail to petitioner and intervenors on the mistaken assumption that bail does not apply to military men facing court-martial proceedings on the ground that there is no precedent, are hereby set aside and declared null and void. Respondent General Court-Martial No. 14 is hereby directed to conduct proceedings on the applications of bail of the petitioner, intervenors and which may as well include other persons facing charges before General Court-Martial No. 14. Pending the proceedings on the applications for bail before General Court-Martial No. 14, this Court reiterates its orders of release on the provisional liberty of petitioner Jacinto Ligot as well as intervenors Franklin Brawner and Arsenio Tecson.

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On February 18, 1991, the private respondents in G.R. No. 97454 filed with this Court a petition for habeas corpus on the ground that they were being detained in Camp Crame without charges. The petition was referred to the Regional Trial Court of Quezon City, where it was raffled to respondent Judge Antonio P. Solano. Finding after hearing that no formal charges had been filed against the petitioners after more than a year after their arrest, the trial court ordered their release. ISSUE: W/N the right to bail is applicable in military courts RULING: The petitioners in G.R. Nos. 95020 and 97454 question the propriety of the petition for certiorari and mandamus and the petition for habeas corpus filed by the private respondents with the Regional Trial Courts of Quezon City. It is argued that since the private respondents are officers of the Armed Forces accused of violations of the Articles of War, the respondent courts have no authority to order their release and otherwise interfere with the courtmartial proceedings. The petitioners further contend that under Sec. 9(3) of BP 1 29, the Court of Appeals is vested with "exclusive appellate jurisdiction over all final judgments, decisions, resolutions, orders, or awards of Regional Trial Courts and quasi-judicial agencies, instrumentalities, boards or commissions." Rather irrelevantly, the petitioners also cite the case of Yang v. Court of Appeals 4 where this Court held that "appeals from the Professional Regulation Commission are now exclusively cognizable by the Court of Appeals. It should be noted that the aforecited provision and the case cited refer to ordinary appeals and not to the remedies employed by the accused officers before the respondent courts. In Martelino, we observed as follows: It is true that civil courts as a rule exercise no supervision or correcting power over the proceedings of courts-martial, and that mere errors in their proceedings are not open to consideration. The single inquiry, the test, is jurisdiction. But it is equally true that in the exercise of their undoubted discretion, courts-martial may commit such an abuse of discretion what in the language of Rule 65 is referred to as "grave abuse of discretion" as to give rise to a defect in their jurisdiction. This is precisely the point at issue in this action suggested by its nature as one for certiorari and prohibition ... . The Regional Trial Court has concurrent jurisdiction with the Court of Appeals and the Supreme Court over petitions for certiorari , prohibition or mandamus against inferior courts and other bodies and on petitions for habeas corpus and quo warranto . 5 In the absence of a law providing that the decisions, orders and ruling of a court-martial or the Office of the Chief of Staff can be questioned only before the Court of Appeals and the Supreme Court, we hold that the Regional Trial Court can exercise similar jurisdiction. We find that the right to bail invoked by the private respondents in G.R. Nos. 95020 has traditionally not been recognized and is not available in the military, as an exception to the general rule embodied in the Bill of Rights. This much was suggested in Arula, where we observed that "the right to a speedy trial is given more emphasis in the military where the right to bail does not exist. The justification for this exception was well explained by the Solicitor General as follows: The unique structure of the military should be enough reason to exempt military men from the constitutional coverage on the right to bail. Aside from structural peculiarity, it is vital to note that mutinous soldiers operate within the framework of democratic system, are allowed the fiduciary use of firearms by the government for the discharge of their duties and responsibilities and are paid out of revenues collected from the people. All other insurgent elements carry out their activities outside of and against the existing political system. National security considerations should also impress upon this Honorable Court that release on bail of respondents constitutes a damaging precedent. Imagine a scenario of say 1,000 putschists roaming the streets of the Metropolis on bail, or if the assailed July

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25,1990 Order were sustained, on "provisional" bail. The sheer number alone is already discomforting. But, the truly disquieting thought is that they could freely resume their heinous activity which could very well result in the overthrow of duly constituted authorities, including this Honorable Court, and replace the same with a system consonant with their own concept of government and justice. The argument that denial from the military of the right to bail would violate the equal protection clause is not acceptable. This guaranty requires equal treatment only of persons or things similarly situated and does not apply where the subject of the treatment is substantially different from others. The accused officers can complain if they are denied bail and other members of the military are not. But they cannot say they have been discriminated against because they are not allowed the same right that is extended to civilians. EDUARDO N. ASWAT vs. BRIGADIER-GENERAL ALEJANDRO GALIDO FACTS: Petitioner Eduardo N. Aswat and victim Felix B. Nebres were both enlisted men of the Armed Forces of the Philippines ("AFP") respectively holding the ranks Private First Class and Corporal. Aswat and Nebres were assigned to the SOLCOM but Aswat was detailed as caretaker of Brigadier General Galido's Baguio resthouse while Nebres was assigned to act as a personal driver of Brigadier General Galido's wife. On 29 December 1988, petitioner was involved in a shooting incident at Dominican Hills, Baguio City, which resulted in the death of Nebres. Records disclose that petitioner voluntarily surrendered to the Baguio City police authorities and was briefly incarcerated at the Baguio City Jail until he was transferred to a SOLCOM detention cell on 31 December 1988. Petitioner has been detained at the SOLCOM Headquarters in Camp Guillermo Nakar, Lucena City since then. On 20 April 1989, petitioner was charged before a SOLCOM General Court-Martial ("SOLCOM-GCM") with violation of Article 94 of the Articles of War ("A.W."), the specification being homicide. While the court-martial proceedings were going on, petitioner filed the instant petition, contending: (1) that the specification of homicide with which he was charged was committed outside a military installation and hence the offense was cognizable by a regular, civilian court; (2) that he is entitled to be released on bail as a matter of right pursuant to Section 13, Article III of the Constitution; and (3) that he should be given his due base pay and other pay, aside from the allowances he has been receiving, computed from the time of commencement of his detention. ISSUE: W/N the right to bail is applicable in military courts. RULING: Although the right to bail applies to "all," the Court has very recently ruled that the guarantee is not without any exception. In Comendador vs . De Villa, et al ., 7 the Court en banc, speaking through Mr. Justice Cruz, held: (Pls. refer to the ruling above) Petitioner, as already noted, is a person subject to military law, and under Article 70, A.W., "any person subject to military law charged with crime or with a serious offense under these article shall be placed in confinement or in arrest, as circumstances may require." Confinement is one way of ensuring presence during sessions of the General Court-Martial; the more important reason underlying the authority to impose confinement is the need to enable the proper military authority to instill discipline with the command and thereby achieve command efficiency. By confining the petitioner, petitioner's unmilitary conduct may be curtailed from spreading within the ranks of the command. The necessity for such confinement is a matter properly left to the sound discretion of petitioner's superior officers. In Domingo vs . Minister of National Defense , 8 the Court en banc , speaking through Mr. Justice Vasquez, held: The petitioner is a person subject to military law facing charges before a general court-martial, and his release from confinement pending the trial of the charges against him is a matter that lies largely in the discretion of the military authorities. They are undeniably in a better position to appreciate the gravity of said charges and the feasibility and advisability of releasing him or relaxing the terms of his confinement pending the trial and disposition of the case filed against him.

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The authority of the respondent to order the arrest and confinement of the petitioner flows from his general jurisdiction over his command. Petitioner being assaigned to SOLCOM, he is directly under the command of then Brigadier General Galido.

4.

STANDARDS FOR FIXING BAIL

REYNALDO C. VILLASEOR vs. HON. MAXIMO ABANO FACTS: The questions presented in this an original petition for certiorari, took root in Criminal Case 2299 (Court of First Instance of Marinduque) for the murder of Boac police sergeant Alfonso Madla, lodged by the Provincial Fiscal against petitioner. 1 Petitioner, defendant below, was, on motion, admitted to a P60,000.00-bail. The amount of the bond was, on verbal representation of petitioner's wife, reduced to P40,000.00. On May 29, 1964, petitioner posted a property bond, was set at provisional liberty. Before arraignment on the murder charge, however, respondent Provincial Fiscal amended the information. This time he accused petitioner with "Direct Assault Upon an Agent of a Person in Authority with Murder." On August 7, 1964, respondent judge sua sponte( remember something?hehe) cancelled petitioner's bond, ordered his immediate arrest. On petitioner's motion. to reconsider, respondent judge, on September 9, 1964, after hearing, resolved to admit him to bail provided he puts up a cash bond of P60,000.00. On September 15, 1964, on petitioner's motion that the original bond previously given be reinstated, respondent judge resolved to fix "the bond anew in real property in the amount of P60,000.00, but to be posted only by residents of the province of Marinduque actually staying therein" with properties which "must be in the possession and ownership of said residents for five years." On October 1, 1964, petitioner came to this Court on certiorari , with a prayer for preliminary injunction. He seeks to set aside respondent judge's orders of August 7, September 9 and September 15, 1964; to reinstate the bail bond theretofore approved by respondent judge on May 29, 1964, and for other reliefs. RULING: Forefront amongst the three problems is this: Does the P60,000.00-bond fixed by respondent judge transgress the constitutional injunction that "(e)xcessive bail shall not be required"? 4 Petitioner's submission is that he is a mere government employee, earning but a monthly salary of P210.00, and the sole breadwinner of a family of five. To be read with the constitutional precept just adverted to is Section 12, Rule 114, Rules of Court, which provides that "the court may, upon good cause shown, either increase or reduce the amount" of the bail, and that "defendant may be committed to custody unless he gives bail in the increased amount he is called upon to furnish." Along with the court's power to grant bail in bailable cases is its discretion to fix the amount thereof, and, as stated, to increase or reduce the same. The question of whether bail is excessive "lays with the court to determine." In the matter of bail fixing, courts perforce are to be guided at all times by the purpose for which bail is required. The definition of bail in Section 1, Rule 114, Rules of Court, gives this purpose "the security required and given for the release of a person who is in the custody of the law, that he will appear before any court in which his appearance may be required as stipulated in the bail bond or recognizance ." And, in amplification thereof, Section 2 of the same rule states that the condition of the bail is that "defendant shall answer the complaint or information in the court in which it is filed or to which it may be transferred for trial, and after conviction, if the case is appealed to the Court of First Instance upon application supported by an undertaking or bail, that he will, surrender himself in execution of such judgment as the appellate court may render, or that, in case cause, is to be tried anew or remanded for a new trial, he will appear in the court to which it may be remanded and submit himself to the orders and processes thereof."

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

Expressions in varying, language spell out in a general way the principles governing bail fixing. One is that the amount should be high enough to assure the presence of defendant when required but no higher than is reasonably calculated to fulfill this purpose. Another is that "the good of the public as well as the rights of the accused," and "the need for a tie to the jurisdiction and the right to freedom from unnecessary restraint before conviction under the circumstances surrounding each particular accused", should all be balanced in one equation. We are not to consider solely the inability of a defendant to secure bail in a certain amount. This circumstance by itself does not make the amount excessive. For, where an accused has no means of his own, no one to bail him out, or none to turn to for premium payments, any amount fixed no matter how small would fall into the category of excessive bail; and, he "would be entitled to be discharged on his recognizance." So it is, that experience has brought forth certain guidelines in bail fixing, which may be summarized as follows: (1) ability of the accused to give bail; (2) nature of the offense; (3) Penalty for the offense charged; (4) character and reputation of the accused; (5) health of the accused; (6) character and strength of the evidence; (7) probability of the accused appearing in trial; (8) forfeiture of other bonds; (9) whether the accused was a fugitive from justice when arrested; and (10) if the accused is under bond for appearance at trial in other cases. 14 But, at bottom, in bail fixing, "the principal factor considered, to the determination of which most other factors are directed , is the probability of the appearance of the accused, or of his flight to avoid punishment." 15 Of importance then is the possible penalty that may be meted. Of course penalty depends to a great extent upon the gravity of offense. Here petitioner is charged with a capital offense, direct assault upon an agent of a person in authority with murder. A complex crime, it may call for the imposition of the capital punishment. Then, Circular 47 dated July 5, 1946 of the Department of Justice, reiterated in Circular 48 of July 18, 1963, directed prosecuting attorney's to recommend bail at the rate of P2,000.00 per year of imprisonment, corresponding to the medium period of the penalty prescribed for the offense charged, unless circumstances warrant a higher penalty. The reasonableness of this circular has already received this Court's imprimatur in one case. 16 We are unprepared to downgrade this method of computation, what with a compound of reduced peso value and the aggravated crime climate. We see no discernible abuse of discretion, given the facts and the law, when respondent judge fixed petitioner's bail at P60,000.00. 3. Exacting serious consideration is that portion of the disputed order of September 15, 1964, where respondent judge requires of the property bond be posted only by "residents of the province of Marinduque actually staying therein." This question is of first impression. We read this statute to mean that the directive that bondsmen be resident householders or freeholders in the Philippines, is but a minimum requirement. Reason for this is that bondsmen in criminal cases, residing outside of the Philippines, are not within the reach of the processes of its courts. The provision under consideration, however, makes no attempt to cover the whole field of what is necessary for a bondsman before he is allowed to make bonds in the various courts;" nor does it "attempt to take away the inherent right of the court to properly administer its affairs." 17 Residence within the country is not the only thing that could be required by the courts; it is not intended to tie up the hands of a judge to approve bail so long as it is offered by a resident householder or freeholder within the Philippines. It is to be treated "as cumulative, rather than exclusive, of the inherent power" of the courts to determine whether bail proffered should be accepted. 18 For, in principle, a court has broad powers essential to its judicial function. 19 We look in retrospect at the situation confronting respondent judge. What prompted him to require as condition that petitioner's bondsmen be residents of the province of Marinduque actually staying therein? In his return to the petition before this Court, respondent judge reasons out that it has been his experience that "it is hard to send notices to people outside the province." He explains that the usual procedure of his clerk of court is to send notices by registered mail accompanied by return cards; that when trial comes, the return cards in many instances have not yet been received in court; that when the parties fail to appear; there is no way of knowing whether the notices have been

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duly received; that he cannot order the confiscation of the bond and the arrest of the accused, because he is not sure whether the bondsmen have been duly notified; that sending telegrams to people outside the province is costly, and the court cannot afford to incur much expenses. The posture taken by respondent judge does not offend the good sense of justice. Bail is given to secure appearance of the accused. If bondsmen reside in far away places, even if within the Philippines, the purpose of bail may be frustrated. There is the insufficiency of the mails as an effective means of communication. And then, there is the problem of complying with the constitutional mandate of speedy trial. If notice to sureties is not served, no trial can be had. For sureties, in legal contemplation, are defendant's mancupators. In the circumstances here obtaining, it would not seem unfair if the judge should require, as he did, that sureties be so situated that court processes could reach them on time. Because, by both the Constitution and the law, sureties should be sufficient. 20 And, sureties are deemed sufficient not only when they are of sufficient financial ability. They must also be "of sufficient vigilance to secure the appearance and prevent the absconding of the accused." 21 They cannot be said to be of sufficient vigilance to secure defendant's appearance whenever required, if the court should experience difficulty in communicating with them. Here respondent judge only wanted to make sure that when the proper time comes for the court to order the sureties to produce the person of defendant, no undue delay will be incurred. The situation here presented does not warrant substitution of our judgement for that of our judgment for that of respondent judge's. We are not called upon to strike down respondent judge's order on this point as an abuse of discretion. 4. Also assailed as beyond the power of respondent judge is the requirement that properties to be offered as bond must be "in the possession and ownership of the sureties for at least five years." Respondent judge, in his return, relies on Circular 2, dated January 23, 1964, of the Honorable, the Secretary of Justice, addressed, among others, to Judges of First Instance. That circular recites that it had been brought to the attention of the Department of Justice that in certain provinces, unscrupulous persons who are spurious landowners, have been accepted as sureties. The Secretary then suggested that "(i)t may be a good policy not to accept as bail bonds real properties not covered by certificate of title unless they have been declared for taxation purposes in favor of the person offering them as bond for at least five (5) years." Basically, reason is with this requirement. Its purpose, so the circular states, is to "prevent the commission of frauds in connection with the posting of personal bail bonds and to protect the interests of the Government." Really, if the bondsman is not the owner, bail fails of its purpose, prejudice to the government sets in. We note, however, that the order of September 15, 1964 spoke of properties in general. It did not exclude properties registered under the Torrens system. A Torrens title is indefeasible. Failure of specificness on the part of respondent judge then could have been a case of oversight. To obviate misunderstanding, we take it upon ourselves to clarify that order. We do say now that the order of September 15, 1964 is to be understood as excluding properties covered by Torrens titles from the requirement that properties to be offered as bond must be "in the possession and ownership of the sureties for at least five years." RICARDO DE LA CAMARA vs. HON. MANUEL LOPEZ ENAGE FACTS: Petitioner, Ricardo, de la Camara, Municipal Mayor of Magsaysay, Misamis Oriental, was arrested on November 7, 1968 and detained at the Provincial Jail of Agusan, for his alleged participation in the killing of fourteen and the wounding of twelve other laborers of the Tirador Logging Co., at Nato, Esperanza, Agusan del Sur, on August 21, 1968. Thereafter, on November 25, 1968, the Provincial Fiscal of Agusan filed with the Court of First Instance a case for multiple frustrated murder 2 and another for multiple murder 3 against petitioner, his co-accused Nambinalot Tagunan and Fortunato Galgo, resulting from the aforesaid occurrence. Then on January 14, 1969, came an application for bail filed by petitioner with the lower court, premised on the assertion that there was no evidence to link him with such fatal incident of August 21, 1968. Respondent Judge, on August 10, 1970, issued an order granting petitioner's application for bail, admitting that there was a failure on

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the part of the prosecution to prove that petitioner would flee even if he had the opportunity,but fixed the amount of the bail bond at the excessive amount of P1,195,200.00,the sum of P840,000.00 for the information charging multiple murder and P355,200.00 for the offense of multiple frustrated murder. Then came the allegation that on August 12, 1970, the Secretary of Justice, Vicente Abad Santos, upon being informed of such order, sent a telegram to respondent Judge stating that the bond required "is excessive" and suggesting that a P40,000.00 bond, either in cash or property, would be reasonable. There was likewise a motion for reconsideration to reduce the amount. Respondent Judge however remained adamant. Hence this petition. RULING: Before conviction, every person is bailable except if charged with capital offenses when the evidence of guilt is strong. 5 Such a right flows from the presumption of innocence in favor of every accused who should not be subjected to the loss of freedom as thereafter he would be entitled to acquittal, unless his guilt be proved beyond reasonable doubt. Thereby a regime of liberty is honored in the observance and not in the breach. It is not beyond the realm of probability, however, that a person charged with a crime, especially so where his defense is weak, would just simply make himself scarce and thus frustrate the hearing of his case. A bail is intended as a guarantee that such an intent would be thwarted. It is, in the language of Cooley, a "mode short of confinement which would, with reasonable certainty, insure the attendance of the accused" for the subsequent trial. 6 Nor is there, anything unreasonable in denying this right to one charged with a capital offense when evidence of guilt is strong, as the likelihood is, rather than await the outcome of the proceeding against him with a death sentence, an ever-present threat, temptation to flee the jurisdiction would be too great to be resisted. 2. Where, however, the right to bail exists, it should not be rendered nugatory by requiring a sum that is excessive. So the Constitution commands. It is understandable why. If there were no such prohibition, the right to bail becomes meaningless. Nothing can be clearer, therefore, than that the challenged order of August 10, 1970 fixing the amount of P1,195,200.00 as the bail that should be posted by petitioner, the sum of P840,000.00 for the information charging multiple murder, there being fourteen victim, and the sum of P355,200 for the other offense of multiple frustrated murder, there being twelve victims, is clearly violative of constitutional provision. Under the circumstances, there being only two offenses charged, the amount required as bail could not possibly exceed P50,000.00 for the information for murder and P25,000.00 for the other information for frustrated murder. Nor should it be ignored in this case that the Department of Justice did recommend the total sum of P40,000.00 for the two offenses. With petitioner, however, having escaped from the provincial jail, no ruling can be had on his plea to nullify the above order. FRANCISCO YAP, JR., aka EDWIN YAP vs. COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES FACTS: For misappropriating amounts equivalent to P5,500,000.00, petitioner was convicted of estafa by the Regional Trial Court of Pasig City. He filed a notice of appeal, and moved to be allowed provisional liberty under the cash bond he had filed earlier in the proceedings. The motion was denied by the trial court in an order dated February 17,1999. After the records of the case were transmitted to the Court of Appeals, petitioner filed with the said court a Motion to Fix Bail For the Provisional Liberty of Accused Appellant Pending Appeal, invoking the last paragraph of Section 5, Rule 114 of the 1997 Revised Rules of Court. Asked to comment on this motion, the Solicitor General opined that petitioner may be allowed to post bail in the amount of P5,500,000.00 and be required to secure "a certification/guaranty from the Mayor of the place of his residence that he is a resident of the area and that he will remain to be so until final judgment is rendered or in case he transfers residence, it must be with prior notice to the court and private complainant." 3 Petitioner filed a Reply, contending that the proposed bail ofP5,500,000.00 was violative of his right against excessive bail. The assailed resolution of the Court of Appeals 4 , issued on October 6, 1999, upheld the recommendation of the Solicitor General. A motion for reconsideration was filed, seeking the reduction of the amount of bail fixed by respondent court, but was denied in a resolution issued on November 25, 1999. Hence, this petition.

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ISSUE: (1) W/N the bail is excessive; (2) W/N petitioner's constitutional liberty of abode and travel was unduly restricted when it imposed other conditions for the grant of bail. RULING: Petitioner's case falls within the provisions of Section 5, Rule 114 of the 1997 Rules of Court. There is no question that in the present case the Court of Appeals exercised its discretion in favor of allowing bail to petitioner on appeal. Respondent court stated that it was doing so for "humanitarian reasons", and despite a perceived high risk of flight, as by petitioner's admission he went out of the country several times during the pendency of the case, for which reason the court deemed it necessary to peg the amount of bail at P5,500,000.00. The prohibition against requiring excessive bail is enshrined in the Constitution. 8 The obvious rationale, as declared in the leading case of De la Camara vs. Enage, 9 is that imposing bail in an excessive amount could render meaningless the right to bail. Thus, in Villaseor vs. Abano , 10 this Court made the pronouncement that it will not hesitate to exercise its supervisory powers over lower courts should the latter, after holding the accused entitled to bail, effectively deny the same by imposing a prohibitory sum or exacting unreasonable conditions. At the same time, Section 9, Rule 114 of the Revised Rules of Criminal Procedure advises courts to consider the following factors in the setting of the amount of bail: (pls.refer to your codal nlng) Thus, the court has wide latitude in fixing the amount of bail. Where it fears that the accused may jump bail, it is certainly not precluded from installing devices to ensure against the same. Options may include increasing the bail bond to an appropriate level, or requiring the person to report periodically to the court and to make an accounting of his movements. 12 In the present case, where petitioner was found to have left the country several times while the case was pending, the Court of Appeals required the confiscation of his passport and the issuance of a hold-departure order against him. Under the circumstances of this case, we find that appropriate conditions have been imposed in the bail bond to ensure against the risk of flight, particularly, the combination of the hold-departure order and the requirement that petitioner inform the court of any change of residence and of his whereabouts. Although an increase in the amount of bail while the case is on appeal may be meritorious, we find that the setting of the amount at P5,500,000.00 is unreasonable, excessive, and constitutes an effective denial of petitioner's right to bail. The purpose for bail is to guarantee the appearance of the accused at the trial, 13 or whenever so required by the Court 14 . The amount should be high enough to assure the presence of the accused when required but no higher than is reasonably calculated to fulfill this purpose. 15 To fix bail at an amount equivalent to the civil liability of which petitioner is charged (in this case, P5,500,000.00).is to permit the impression that the amount paid as bail is an exaction of the civil liability that accused is charged of; this we cannot allow because bail is not intended as a punishment, nor as a satisfaction of civil liability which should necessarily await the judgment of the appellate court. At the same time, we cannot yield to petitioner's submission that bail in the instant case be set at P40,000.00 based on the 1996 Bail Bond Guide. (The current Bail Bond Guide, issued on August 29, 2000, maintains recommended bail at P40,000.00 for estafa where the amount of fraud is P142,000.00 or over and the imposable penalty 20 years of reclusion temporal). True, the Court has held that the Bail Bond Guide, a circular of the Department of Justice for the guidance of state prosecutors, although technically not binding upon the courts, "merits attention, being in a sense an expression of policy of the Executive Branch, through the Department of Justice, in the enforcement of criminal laws." 16 Thus, courts are advised that they must not only be aware but should also consider the Bail Bond Guide due to its significance in the administration of criminal justice. 17 This notwithstanding, the Court is not precluded from imposing in petitioner's case an amount higher than P40,000.00 (based on the Bail Bond Guide) where it perceives that an appropriate increase is dictated by the circumstances. It militates emphasis that petitioner is seeking bail on appeal. Section 5, Rule 114 of the Revised Rules of Criminal Procedure is clear that although the grant of bail on appeal is non-capital offenses is discretionary, when the penalty imposed on the convicted accused exceeds six years and circumstances exist that point to the

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probability of flight if released on bail, then the accused must be denied bail, or his bail previously granted should be cancelled. 18 In the same vein, the Court has held that the discretion to extend bail during the course of the appeal should be exercised with grave caution and for strong reasons, considering that the accused had been in fact convicted by the trial court. 19 In an earlier case, the Court adopted Senator Vicente J. Francisco's disquisition on why bail should be denied after judgment of conviction as a matter of wise discretion; thus: The importance attached to conviction is due to the underlying principle that bail should be granted only where it is uncertain whether the accused is guilty or innocent, and therefore, where that uncertainty is removed by conviction it would, generally speaking, be absurd to admit to bail. After a person has been tried and convicted the presumption of innocence which may be relied upon in prior applications is rebutted, and the burden is upon the accused to show error in the conviction. From another point of view it may be properly argued that the probability of ultimate punishment is so enhanced by the conviction that the accused is much more likely to attempt to escape if liberated on bail than before conviction.xxx 20 Petitioner is seeking bail on appeal. He was in fact declared guilty beyond reasonable doubt by the RTC, and due to the serious amount of fraud involved, sentenced to imprisonment for twenty years --the maximum penalty for estafa by false pretenses or fraudulent acts allowed by the Revised Penal Code. Although it cannot be controverted that the Court of Appeals, despite the foregoing considerations and the possibility of flight still wielded its discretion to grant petitioner bail, the setting of bail in the amount of P5,500,000.00 is unjustified as having no legal nor factual basis. Guided by the penalty imposed by the lower court and the weight of the evidence against petitioner, we believe that the amount of P200,000.00 is more reasonable. Petitioner also contests the condition imposed by the Court of Appeals that he secure "a certification/guaranty from the Mayor of the place of his residence that he is a resident of the area and that he will remain to be a resident therein until final judgment is rendered or in case he transfers residence, it must be with prior notice to the court", claiming that the same violates his liberty of abode and travel. Notably, petitioner does not question the hold-departure order which prevents him from leaving the Philippines unless expressly permitted by the court which issued the order. 21 In fact, the petition submits that "the hold-departure order against petitioner is already sufficient guarantee that he will not escape. Thus, to require him to inform the court every time he changed his residence is already unnecessary." 22 The right to change abode and travel within the Philippines, being invoked by petitioner, are not absolute rights. Section 6, Article III of the 1987 Constitution states: The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law. The order of the Court of Appeals releasing petitioner on bail constitutes such lawful order as contemplated by the above provision. 23 The condition imposed by the Court of Appeals is simply consistent with the nature and function of a bail bond, which is to ensure that petitioner will make himself available at all times whenever the Court requires his presence. Besides, a closer look at the questioned condition will show that petitioner is not prevented from changing abode; he is merely required to inform the court in case he does so.

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no officer-position in said business, but acts as president of the former corporation. Following the "run" on stock brokerages caused by stock broker Santamaria's flight from this jurisdiction, petitioner, who was then in the United States, came home, and together with his costockholders, filed a petition with the Securities and Exchange Commission for the appointment of a management committee, not only for Manotoc Securities, Inc., but likewise for Trans-Insular Management, Inc. The petition relative to the Manotoc Securities, Inc., docketed as SEC Case No. 001826, entitled, "In the Matter of the Appointment of a Management Committee for Manotoc Securities, Inc., Teodoro Kalaw, Jr., Ricardo Manotoc, Jr., Petitioners", was granted and a management committee was organized and appointed. Pending disposition of SEC Case No. 001826, the Securities and Exchange Commission requested the then Commissioner of Immigration, Edmundo Reyes, not to clear petitioner for departure and a memorandum to this effect was issued by the Commissioner on February 4, 1980 to the Chief of the Immigration Regulation Division. When a Torrens title submitted to and accepted by Manotoc Securities, Inc. was suspected to be a fake, six of its clients filed six separate criminal complaints against petitioner and one Raul Leveriza, Jr., as president and vice-president, respectively, of Manotoc Securities, Inc. In due course, corresponding criminal charges for estafa were filed by the investigating fiscal before the then Court of First Instance of Rizal, docketed as Criminal Cases Nos. 45399 and 45400, assigned to respondent Judge Camilon, and Criminal Cases Nos. 45542 to 45545, raffled off to Judge Pronove. In all cases, petitioner has been admitted to bail in the total amount of P105,000.00, with FGU Instance Corporation as surety. On March 1, 1982, petitioner filed before each of the trial courts a motion entitled, "motion for permission to leave the country," stating as ground therefor his desire to go to the United States, "relative to his business transactions and opportunities." 1 The prosecution opposed said motion and after due hearing, both trial judges denied the same. Petitioner filed the instant petition for review on certiorari. Petitioner contends that having been admitted to bail as a matter of right, neither the courts which granted him bail nor the Securities and Exchange Commission which has no jurisdiction over his liberty, could prevent him from exercising his constitutional right to travel. ISSUE: Does a person facing a criminal indictment and provisionally released on bail have an unrestricted right to travel? Petitioner's contention is untenable. A court has the power to prohibit a person admitted to bail from leaving the Philippines. This is a necessary consequence of the nature and function of a bail bond. Its object is to relieve the accused of imprisonment and the state of the burden of keeping him, pending the trial, and at the same time, to put the accused as much under the power of the court as if he were in custody of the proper officer, and to secure the appearance of the accused so as to answer the call of the court and do what the law may require of him. The condition imposed upon petitioner to make himself available at all times whenever the court requires his presence operates as a valid restriction on his right to travel. Indeed, if the accused were allowed to leave the Philippines without sufficient reason, he may be placed beyond the reach of the courts. The effect of a recognizance or bail bond, when fully executed or filed of record, and the prisoner released thereunder, is to transfer the custody of the accused from the public officials who have him in their charge to keepers of his own selection. Such custody has been regarded merely as a continuation of the original imprisonment. The sureties become invested with full authority over the person of the principal and have the right to prevent the principal from leaving the state. If the sureties have the right to prevent the principal from leaving the state, more so then has the court from which the sureties merely derive such right, and whose jurisdiction over the person of the principal remains unaffected despite the grant of bail to the latter. In fact, this inherent right of the court is recognized by petitioner himself, notwithstanding his allegation that he is at total liberty to

5.RIGHT TO BAIL AND RIGHT TO TRAVEL ABROAD

RICARDO L. MANOTOC, JR. vs. THE COURT OF APPEALS, HONS. SERAFIN E. CAMILON and RICARDO L. PRONOVE, JR., as Judges of the Court of First Instance of Rizal, Pasig branches, THE PEOPLE OF THE PHILIPPINES, the SECURITIES & EXCHANGE COMISSION, HON. EDMUNDO M. REYES FACTS: Petitioner Ricardo L. Manotoc, Jr., is one of the two principal stockholders of Trans-Insular Management, Inc. and the Manotoc Securities, Inc., a stock brokerage house. Having transferred the management of the latter into the hands of professional men, he holds

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leave the country, for he would not have filed the motion for permission to leave the country in the first place, if it were otherwise. To support his contention, petitioner places reliance upon the then Court of Appeals' ruling in People vs. Shepherd (C.A.-G.R. No. 23505R, February 13, 1980) particularly citing the following passage: ... The law obliges the bondsmen to produce the person of the appellants at the pleasure of the Court. ... The law does not limit such undertaking of the bondsmen as demandable only when the appellants are in the territorial confines of the Philippines and not demandable if the appellants are out of the country. Liberty, the most important consequence of bail, albeit provisional, is indivisible. If granted at all, liberty operates as fully within as without the boundaries of the granting state. This principle perhaps accounts for the absence of any law or jurisprudence expressly declaring that liberty under bail does not transcend the territorial boundaries of the country. The faith reposed by petitioner on the above-quoted opinion of the appellate court is misplaced. The rather broad and generalized statement suffers from a serious fallacy; for while there is, indeed, neither law nor jurisprudence expressly declaring that liberty under bail does not transcend the territorial boundaries of the country, it is not for the reason suggested by the appellate court. Also, petitioner's case is not on all fours with the Shepherd case. In the latter case, the accused was able to show the urgent necessity for her travel abroad, the duration thereof and the conforme of her sureties to the proposed travel thereby satisfying the court that she would comply with the conditions of her bail bond. in contrast, petitioner in this case has not satisfactorily shown any of the above. As aptly observed by the Solicitor General in his comment: A perusal of petitioner's 'Motion for Permission to Leave the Country' will show that it is solely predicated on petitioner's wish to travel to the United States where he will, allegedly attend to some business transactions and search for business opportunities. From the tenor and import of petitioner's motion, no urgent or compelling reason can be discerned to justify the grant of judicial imprimatur thereto. Petitioner has not sufficiently shown that there is absolute necessity for him to travel abroad. Petitioner's motion bears no indication that the alleged business transactions could not be undertaken by any other person in his behalf. Neither is there any hint that petitioner's absence from the United States would absolutely preclude him from taking advantage of business opportunities therein, nor is there any showing that petitioner's non-presence in the United States would cause him irreparable damage or prejudice. Petitioner has not specified the duration of the proposed travel or shown that his surety has agreed to it. Petitioner merely alleges that his surety has agreed to his plans as he had posted cash indemnities. The court cannot allow the accused to leave the country without the assent of the surety because in accepting a bail bond or recognizance, the government impliedly agrees "that it will not take any proceedings with the principal that will increase the risks of the sureties or affect their remedies against him. Under this rule, the surety on a bail bond or recognizance may be discharged by a stipulation inconsistent with the conditions thereof, which is made without his assent. This result has been reached as to a stipulation or agreement to postpone the trial until after the final disposition of other cases, or to permit the principal to leave the state or country." (Globel Rama) G.R. Nos. 99289-90 January 27, 1993 MIRIAM DEFENSOR-SANTIAGO, petitioner,vs. CONRADO M. VASQUEZ, Ombudsman; GUALBERTO J. DE LA LLANA, Special Prosecutor; SANDIGANBAYAN and REGIONAL TRIAL COURT OF MANILA, respondents. Facts: An information was filed against petitioner with the Sandiganbayan for violation of the Anti Graft and Corrupt Practices Act. The order of arrest was issued with bail for release fixed at Php. 15,000 so she filed a motion for acceptance of cash bail bond. On the same day the Sandiganbayan issued a resolution authorizing the petitioner to post cash bond which the later filed in the amount of Php.15, 000. Her arraignment was set, but petitioner asked for the cancellation of her bail bond and that she be allowed provisional release on recognizance. The Sandiganbayan deferred it. The Sandiganbayan issued a hold departure order against petitioner, by reason of the announcement she made that she would be leaving for the U.S. to accept a fellowship a Harvard. In the instant motion she submitted before the S.C. she argues that her right to travel is impaired. Issue: Whether or Not the petitioners right to travel is impaired. Held: The petitioner does not deny and as a matter of fact even made a public statement, that she he every intension of leaving the country

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to pursue higher studies abroad. The court upholds the course of action of the Sandiganbayan in taking judicial notice of such fact of petitioners pal to go abroad and in thereafter issuing a sua sponte the hold departure order is but an exercise of respondent courts inherent power to preserve and to maintain effectiveness of its jurisdiction over the case and the person of the accused. Also, the petitioner assumed obligations, when she posted bail bond. She holds herself amenable at all times to the orders and process of eth court. She may legally be prohibited from leaving the country during the pendency of the case. (Manotoc v. C.A.) G.R. No. 94284 April 8, 1991 RICARDO C. SILVERIO, petitioner, vs. THE COURT OF APPEALS, HON. BENIGNO G. GAVIOLA, as Judge of the Regional Trial Court of Cebu City, Branch IX, and PEOPLE OF THE PHILIPPINES, respondents. Facts: Petitioner was charged with violation of Section 2 (4) of the revised securities act. Respondent filed to cancel the passport of the petitioner and to issue a hold departure order. The RTC ordered the DFA to cancel petitioners passport, based on the finding that the petitioner has not been arraigned and there was evidence to show that the accused has left the country without the knowledge and the permission of the court. Issue: Whether or Not the right to travel may be impaired by order of the court. Held: The bail bond posted by petitioner has been cancelled and warrant of arrest has been issued by reason that he failed to appear at his arraignments. There is a valid restriction on the right to travel, it is imposed that the accused must make himself available whenever the court requires his presence. A person facing criminal charges may be restrained by the Court from leaving the country or, if abroad, compelled to return (Constitutional Law, Cruz, Isagani A., 1987 Edition, p. 138). So it is also that "An accused released on bail may be re-arrested without the necessity of a warrant if he attempts to depart from the Philippines without prior permission of the Court where the case is pending (ibid., Sec. 20 [2nd par. ]). Article III, Section 6 of the 1987 Constitution should be interpreted to mean that while the liberty of travel may be impaired even without Court Order, the appropriate executive officers or administrative authorities are not armed with arbitrary discretion to impose limitations. They can impose limits only on the basis of "national security, public safety, or public health" and "as may be provided by law," a limitive phrase which did not appear in the 1973 text (The Constitution, Bernas, Joaquin G.,S.J., Vol. I, First Edition, 1987, p. 263). Apparently, the phraseology in the 1987 Constitution was a reaction to the ban on international travel imposed under the previous regime when there was a Travel Processing Center, which issued certificates of eligibility to travel upon application of an interested party (See Salonga vs. Hermoso & Travel Processing Center, No. 53622, 25 April 1980, 97 SCRA 121). Holding an accused in a criminal case within the reach of the Courts by preventing his departure from the Philippines must be considered as a valid restriction on his right to travel so that he may be dealt with in accordance with law. The offended party in any criminal proceeding is the People of the Philippines. It is to their best interest that criminal prosecutions should run their course and proceed to finality without undue delay, with an accused holding himself amenable at all times to Court Orders and processes

6.

WAIVER OF THE RIGHT TO BAIL

G.R. No. 79269 June 5, 1991 PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. PROCORO J. DONATO, in his official capacity as Presiding Judge, Regional Trial Court, Branch XII, Manila; RODOLFO C. SALAS, alias Commander Bilog, respondents. Facts: Private respondent and his co-accused were charged of rebellion on October 2, 1986 for acts committed before and after February 1986. Private respondent filed with a Motion to Quash alleging that: (a) the facts alleged do not constitute an offense; (b) the Court has no jurisdiction over the offense charged; (c) the Court has no jurisdiction over the persons of the defendants; and (d) the criminal action or liability has been extinguished. This was denied. May 9, 1987 Respondent filed a petition for bail, which was opposed that the respondent is not entitled to bail anymore since rebellion became a capital offense under PD 1996, 942 and 1834 amending ART. 135 of RPC. On 5 June 1987 the President issued Executive Order No. 187 repealing, among others, P.D. Nos. 1996, 942 and

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1834 and restoring to full force and effect Article 135 of the Revised Penal Code as it existed before the amendatory decrees. Judge Donato now granted the bail, which was fixed at P30,000.00 and imposed a condition that he shall report to the court once every two months within the first ten days of every period thereof. Petitioner filed a supplemental motion for reconsideration indirectly asking the court to deny bail to and to allow it to present evidence in support thereof considering the "inevitable probability that the accused will not comply with this main condition of his bail. It was contended that: 1. The accused has evaded the authorities for thirteen years and was an escapee from detention when arrested; (Chairman of CPP-NPA) 2. He was not arrested at his residence as he had no known address; 3. He was using the false name "Manuel Mercado Castro" at the time of his arrest and presented a Driver's License to substantiate his false identity; 4. The address he gave "Panamitan, Kawit, Cavite," turned out to be also a false address; 5. He and his companions were on board a private vehicle with a declared owner whose identity and address were also found to be false; 6. Pursuant to Ministry Order No. 1-A dated 11 January 1982 , a reward of P250,000.00 was offered and paid for his arrest. This however was denied. Hence the appeal. Issue: Whether or Not the private respondent has the right to bail. Held: Yes. Bail in the instant case is a matter of right. It is absolute since the crime is not a capital offense, therefore prosecution has no right to present evidence. It is only when it is a capital offense that the right becomes discretionary. However it was wrong for the Judge to change the amount of bail from 30K to 50K without hearing the prosecution. Republic Act No. 6968 approved on 24 October 1990, providing a penalty of reclusion perpetua to the crime of rebellion, is not applicable to the accused as it is not favorable to him. Accused validly waived his right to bail in another case(petition for habeas corpus). Agreements were made therein: accused to remain under custody, whereas his co-detainees Josefina Cruz and Jose Milo Concepcion will be released immediately, with a condition that they will submit themselves in the jurisdiction of the court. Said petition for HC was dismissed. Bail is the security given for the release of a person in custody of the law. Ergo, there was a waiver. We hereby rule that the right to bail is another of the constitutional rights which can be waived. It is a right which is personal to the accused and whose waiver would not be contrary to law, public order, public policy, morals, or good customs, or prejudicial to a third person with a right recognized by law. A.M. No. MTJ-94-897 December 5, 1994 MINOR CYNTHIA L. LARDIZABAL THRU COUNSEL ATTY. LUIS L. LARDIZABAL, petitioner,vs. JUDGE OSCAR A. REYES, respondent. FACTS: The complaint alleges that on 1 September 1993, the complainant, a 12-year old girl, filed a criminal complaint for rape against a certain Dionisio Lozano alias "Dioning"; that after conducting the required preliminary investigation of the complainant and her witnesses, respondent judge issued on 2 September 1993 an order directing the arrest of the accused, but at the same time, motu proprio, fixed the bail of the accused in the amount of P80,000.00 without any application on the part of the accused to be admitted to bail and without conducting any hearing thereon; that when the accused filed on 7 September 1993 a motion to reduce bail from P80,000.00 to P20,000.00, respondent judge, again, without prior notice and hearing, reduced the bail to P40,000.00. ISSUE: WON the respondent judge acted with grave abuse of discretion HELD: The Court does not accept as satisfactory respondent's explanation that good faith urged him to fix and grant bail motu proprio for the provisional release of the accused charged with rape. By so doing, he acted irregularly, thereby depriving the prosecution of an opportunity to interpose objections to the grant of bail. The rule is explicit that when an accused is charged with a serious offense punishable with reclusion perpetua, such as rape, bail may be granted only after a motion for that purpose has been filed by the accused and a hearing thereon conducted by a judge to determine whether or not the prosecution's evidence of guilt is strong. Respondent could not have arrived at a fair conclusion that the evidence was not strong enough to deny bail to the accused when the

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prosecution had not been heard on the matter. Respondent's unjustified haste in granting bail and thereafter reducing the amount thereof, in both instances, without hearing the side of the prosecution, speaks poorly of his competence in applying the law and jurisprudence on the matter. Whether the motion for bail of an accused who is in custody for a capital offense be resolved in a summary proceeding or in the course of a regular trial, the prosecution must be given an opportunity to present, within a reasonable time, all the evidence that it may wish to introduce on the probable guilt of the accused, before the court resolves the motion for bail. If, as in the present case, the prosecution should be denied such an opportunity, there would be a violation of procedural due process, and the order of the court granting bail should be considered void on that ground. G.R. No. 122737. February 17, 1999] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SERGON MANES and RAMIL MANES, accused-appellants. FACTS: The case before the Court is an appeal taken by accused Sergon Manes and Ramil Manes from the judgment of the Regional Trial Court, Branch 25, IloiloCity, convicting them of murder and sentencing them to each "suffer the penalty of reclusion perpetua with the accessory penalties as provided in Article 41 of the Revised Penal Code" and "to indemnify the family of their victim in the amount of P50,000.00 plus P21,250.00 as expenses for the burial, wake and other related matter and to pay the costs." Case was affirmed The prosecution recommended no bail for the provisional liberty of the accused. Upon arraignment on September 17, 1992, both accused pleaded not guilty to the information, and, thereafter, the court proceeded to try the case. Meantime, on August 25, 1992, the accused filed a petition for bail, which was opposed by the prosecution. The trial court, however, did not hear the petition for bail. Neither did the accused invoke the right to bail at any stage of the trial. On January 13, 1995, the trial court rendered judgment convicting the accused of murder. On February 10, 1995, both accused appealed to this Court.[7] In the appeal, accused questioned the trial courts failure (a) to hear the petition for bail ISSUE: WON the court failed to hear the petition for bail HELD: Appellants contend that the trial court committed a serious error of law when it went on with the trial of the case without hearing the petition for bail that was set for hearing several times. Under the law, in offenses punishable by reclusion perpetua, life imprisonment or death, the accused has no right to bail when evidence of guilt is strong. The court must hear a petition for bail to determine whether the evidence of guilt is strong before deciding to grant or deny bail to the accused. While the accused can apply for bail and have the court hear his application summarily and promptly, such right may be waived expressly or impliedly. In this case, the trial court proceeded to try the case without resolving the petition for bail that appellants filed. However, the latter did not call the attention of the trial court to their unresolved application for bail. It was only in the appeal that they raise this issue. Thus, for failure to bring to the attention of the trial court at the earliest opportune time, appellants are deemed to have waived their right to bail. What is more, the issue has been rendered academic by the conviction of the accused. When an accused is charged with a capital offense, or an offense punishable by reclusion perpetua, or life imprisonment or death, and evidence of guilt is strong, bail must be denied, as it is neither a matter of right nor of discretion.

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo VIII. RIGHT DURING TRIAL 1. DUE PROCESS IN CRIMINAL CASES

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The two (2) accused did not present any countervailing evidence during the trial. They did not take the witness stand to refute or deny under oath the truth of the contents of the private complainant's aforementioned affidavit which she expressly affirmed and confirmed in Court, but, instead, thru their respective lawyers, they rested and submitted the case for decision merely on the basis of the private complainant's so called "desistance" which, to them, was sufficient enough for their purposes. They left everything to the so-called "desistance" of the private complainant. According to petitioners, however, there was no such trial for what was conducted on 07 November 1997, aside from the arraignment of the accused, was merely a proceeding to determine the validity and voluntariness of the affidavit of desistance executed by Punongbayan. It does seem to the Court that there has been undue precipitancy in the conduct of the proceedings. Perhaps the problem could have well been avoided had not the basic procedures been, to the Court's perception, taken lightly. And in this shortcoming, looking at the records of the case, the trial court certainly is not alone to blame. Section 14, paragraphs (1) and (2), of Article III, of the Constitution provides the fundamentals. The order of trial in criminal cases is clearly spelled out in Section 3, Rule 119, of the Rules of Court; While Judge Savellano has claimed in his Comment that Petitioners-accused were each represented during the hearing on 07 November 1997 with their respective counsel of choice. None of their counsel interposed an intention to cross-examine rape victim Juvielyn Punongbayan, even after she attested, in answer to respondent judge's clarificatory questions, the voluntariness and truth of her two affidavits one detailing the rape and the other detailing the attempts to buy her desistance; the opportunity was missed/not used, hence waived. The rule of case law is that the right to confront and cross-examine a witness "is a personal one and may be waived." (emphasis supplied) it should be pointed out, however, that the existence of the waiver must be positively demonstrated. The standard of waiver requires that it "not only must be voluntary, but must be knowing, intelligent, and done with sufficient awareness of the relevant circumstances and likely consequences." Mere silence of the holder of the right should not be so construed as a waiver of right, and the courts must indulge every reasonable presumption against waiver. The Solicitor General has aptly discerned a few of the deviations from what otherwise should have been the regular course of trial: (1) Petitioners have not been directed to present evidence to prove their defenses nor have dates therefor been scheduled for the purpose; (2) the parties have not been given the opportunity to present rebutting evidence nor have dates been set by respondent Judge for the purpose; and (3) petitioners have not admitted the act charged in the Information so as to justify any modification in the order of trial. There can be no short-cut to the legal process, and there can be no excuse for not affording an accused his full day in court. Due process, rightly occupying the first and foremost place of honor in our Bill of Rights, is an enshrined and invaluable right that cannot be denied even to the most undeserving. This case, in fine, must be remanded for further proceedings. [G.R. Nos. 151249-50. February 26, 2004] PEOPLE OF THE PHILIPPINES, appellee, MACARANG, appellant.

G.R. No. 131652 March 9, 1998 BAYANI M. ALONTE, petitioner,vs. HON. MAXIMO A. SAVELLANO JR., NATIONAL BUREAU OF INVESTIGATION and PEOPLE OF THE PHILIPPINES, respondents. G.R. No. 131728 March 9, 1998 BUENAVENTURA CONCEPCION, petitioner,vs. JUDGE MAXIMO SAVELLANO, JR., THE PEOPLE OF THE PHILIPPINES, and JUVIELYN Y. PUNONGBAYAN, respondents. FACTS: On 05 December 1996, an information for rape was filed against petitioners Bayani M. Alonte, an incumbent Mayor of Bian, Laguna, and Buenaventura Concepcion predicated on a complaint filed by Juvie-lyn Punongbayan. . On 13 December 1996, Juvie-lyn Punongbayan, through her counsel, and Assistant Chief State Prosecutor ("ACSP") Guiyab, filed a Petition for a Change of Venue to have the case transferred and tried by any of the Regional Trial Courts in Metro Manila. During the pendency of the petition for change of venue, or on 25 June 1997, Juvie-lyn Punongbayan, assisted by her parents and counsel, executed an affidavit of desistance. On 02 September 1997, this Court issued a Resolution granting the petition for change of venue. On 07 October 1997, Juvie-lyn Punongbayan, through Attorney Balbin, submitted to the Manila court a "compliance" where she reiterated "her decision to abide by her Affidavit of Desistance." On 02 November 1997, Alonte voluntarily surrendered himself to Director Santiago Toledo of the National Bureau of Investigation ("NBI"), while Concepcion, in his case, posted the recommended bail of P150,000.00. On 07 November 1997, petitioners were arraigned and both pleaded "not guilty" to the charge. The parties manifested that they were waiving pre-trial. The proceedings forthwith went on. Per Judge Savellano, both parties agreed to proceed with the trial of the case on the merits. According to Alonte, however, Judge Savellano allowed the prosecution to present evidence relative only to the question of the voluntariness and validity of the affidavit of desistance. Thereupon, respondent judge said that "the case was submitted for decision." On 17 December 1997, Attorney Philip Sigfrid A. Fortun, the lead counsel for petitioner Alonte received a notice from the RTC Manila. Branch 53, notifying him of the schedule of promulgation, on 18 December 1997, of the decision on the case. The counsel for accused Concepcion denied having received any notice of the scheduled promulgation. On 18 December 1997, after the case was called, Atty. Sigrid Fortun and Atty. Jose Flaminiano manifested that Alonte could not attend the promulgation of the decision because he was suffering from mild hypertension and was confined at the NBI clinic and that, upon the other hand, petitioner Concepcion and his counsel would appear not to have been notified of the proceedings. The promulgation, nevertheless, of the decision proceeded in absentia; the reading concluded: WHEREFORE, judgment is hereby rendered finding the two (2) accused Mayor Bayani Alonte and Buenaventura "Wella" Concepcion guilty beyond reasonable doubt of the heinous crime of RAPE ISSUE: WON The respondent Judge committed grave abuse of discretion amounting to lack or excess of jurisdiction when he rendered a Decision in the case a quo without affording the petitioner his Constitutional right to due process of law (Article III, 1, Constitution). HELD: The Court must admit that it is puzzled by the somewhat strange way the case has proceeded below. Per Judge Savellano, after the waiver by the parties of the pre-trial stage, the trial of the case did proceed on the merits but that

vs.

ARIEL

FACTS: Before us on automatic review is a Decision sentencing appellant Ariel Macarang to suffer the penalty of death in each of said criminal cases for qualified rape. Appellant claims that the trial court erred in giving weight and credence to the testimony of private complainant and that appellants guilt was not proven beyond reasonable doubt. Appellee, represented by the Office of the Solicitor General, filed its brief, entitled Brief For The Appellee With Recommendation To Remand The Cases To The Court A Quo For Further Proceedings, calling our attention to the fact that the trial court had considered appellant to have waived his right to present his evidence without any showing that the latter was fully aware of the consequences of such waiver. ISSUE: WON appellant was deprived of his right t due process

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

HELD: We are aware of the usual practice of presiding judges in warning a party in a case that he will be considered to have waived his right to adduce evidence if he fails to present it at the next hearing, after prior unwarranted postponements, despite previous agreement of the parties. Its objective is to instill discipline on the litigants and their counsel so that the proceedings of the court would not be unduly delayed. However, in criminal cases where the imposable penalty may be death, as in the present cases, the presiding judge is called upon to see to it that the accused is made aware of the consequences of not heeding the warning given by the trial court. It must be noted that the waiver of the right to present defense evidence in the present cases was not even voluntary nor upon the instance of the appellant but imposed by the trial court, apparently to penalize appellant, after he and his counsel repeatedly moved for the postponements of the scheduled hearings. A simple forewarning to the appellant that the next time that he would not be ready with his defense evidence, he would not be deemed to have waived his right to present it, did not satisfy appellants constitutional right to due process. The trial court granted Motion of Appellants counsel to withdraw his appearance. Appellant, therefore, had no more counsel. It is obvious that the appellant is deprived of his right to due process

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accused is innocent or with any other rational hypothesis except that of his guilt. In this case, the totality of the pieces of circumstantial evidence being imputed to Legarto does not foreclose the possibility that he took no part in the criminal enterprise and does not, therefore, overcome his constitutional right to be presumed innocent. The presumption of innocence is founded upon substantive law and basic principles of justice. It serves to balance the scales of justice in what would otherwise be an uneven contest between a single individual accused of a crime and the prosecution which has all the resources of the government at its command. Thus, this presumption cannot be overcome by mere suspicion or conjecture that the defendant probably committed the crime or that he had the opportunity to do so. The prosecution is required to prove the guilt of the accused beyond reasonable doubt. Otherwise, the accused must be set free in accordance with the rule that conflicts in and insufficiency of evidence must be resolved in favor of the theory of innocence rather than the theory of guilt. In Legartos case, conspiracy was not at all established by the prosecution. The familiarity between Legarto and Mondaga is insufficient proof, as conspiracy transcends companionship. Moreover, Mondagas act of meeting Legarto on the road to Andanan does not show conspiracy, because a merely casual or unintended meeting, like passive presence, is not proof of conspiracy. Similarly insufficient as circumstantial evidence to prove conspiracy were Mondagas demand for the use of Legartos motorcycle, Legartos collecting the ransom money and delivering part of it, and Legartos failure to testify against Mondaga due to either refusal or neglect. We stress that conspiracy must be founded on facts, not on mere inferences and conjectures. Without an allegation of any overt act showing community with the kidnappers, inferences do not adequately establish participation in a criminal conspiracy. Legartos Criminal Liability Legarto may not have had a direct hand in the kidnapping, but he received part of the ransom and used it to pay off his arrears in his motorcycle loan. Thus, having knowledge of the kidnapping for ransom and without having directly participated therein, he took part in the crime subsequent to its commission by profiting from its effects.He may not be the devil with the face of an angel that the trial court described, but he is definitely not a saint. He is criminally liable as an accessory to the crime of kidnapping for ransom. (Carmi Romero) PEOPLE VS LAGMAY 306 SCRA 157 (1999) On June 14, 1994, Edgar Lagmay, after talking to his father at Agdao Public Market, took a jeepney along San Pedro and Anda Sts., on his way home to Toril. The accused fell asleep during a segment of the trip. Upon reaching the checkpoint along Ulas he was awakened by a tap on the shoulder. SPOC Laput asked the accused if he owned the bag beside his seat. The accused denied the same. He was asked to alight from the jeep and was again asked multiple times if he owned the bag beside his seat which he also denied multiple times. The accused was brought to smokey mountain and again asked multiple times if he owned the bag which again he denied. He was even threatened that he will be shot if he did not admit that he owned the bag. He still denied ownership of the bag which was found out to contain dried marijuana leaves. He was charged and convicted in the lower court and sentenced to death with the testimony of the driver of the jeep. However upon review 3 new witnesses came out and said that the bag was not owned by the accused. They were the conductor and two passengers of the jeep. Their testimonies were clear and leave no room to doubt as to their true intention, which is to save the life of a man who was wrongly convicted because they refused to heed the call of their conscience and retreated into the safe haven of being indifferent to the call of justice. In this case, the prosecution failed to establish the guilt of accused Edgar Lagmay y Alarcon beyond reasonable doubt. We are convinced that there was another passenger in the jeep who was the true owner of the bag containing the 3,051.3 grams of dried marijuana leaves. We have held that "if the inculpatory facts and circumstances are capable of two or more explanations, one of which is consistent with the innocence of the accused and the other consistent with his guilt, then the evidence does not fulfill the test of moral certainty and is not sufficient to support a conviction"

2.

PRESUMPTION OF INNOCENCE

[G.R. No. 115351. March 27, 1998] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DANIEL MALUENDA alias DONGKOY; GIL BUENO; RAUL MONDAGA alias BOBONG; and RODRIGO LEGARTO, DANIEL MALUENDA and RODRIGO LEGARTO, accused-appellants. FACTS: Conspiracy and/or direct participation in a crime may be proven by circumstantial evidence. However, the comprising circumstances must be duly proven, consistent with each other and lead with moral certainty to only one conclusion: that the accused is guilty. If the totality of such circumstances eliminates beyond reasonable doubt the possibility of innocence, conviction is proper; otherwise, the accused must be acquitted. If said accused, however, took advantage of the effects of the crime and profited thereby, he can be held criminally liable as an accessory. The Case This is an appeal, convicting Raul Mondaga, Rodrigo Legarto and Daniel Maluenda of kidnapping and sentencing them to reclusin perpetua. Warrants of arrest for the four accused were issued by the trial court, but Bueno eluded the authorities and remained at large. At their arraignment and with the assistance of counsel, Legarto, Maluenda and Mondaga pleaded not guilty. After trial in due course, the lower court found the three accused guilty as charged The trial court also noted the following pieces of evidence which proved Legartos participation in the crime: 1. Witness Sanchez testified that she saw Mondaga frequenting Legartos house in Diatagon, and she even saw him and Mondaga riding on his motorcycle. 2. On August 20, 1992, Engineer Resus saw him convey Maluenda and Alex to Andanan, where Maluenda and Alex boarded Engineer Resuss car. 3. He drove the victims car back to Diatagon from Alegria. 4. He delivered Mondagas ransom notes to Dr. Resus. 5. He also delivered the ransom money to the kidnappers. 6. He used P36,000 of the ransom money to pay the balance of the purchase price of his motorcycle. All these allegedly show Legartos participation as a co-principal by indispensable cooperation in the crime. ISSUE: WON Legarto conspiracy and/or direct participation may be proven by circumstantial evidence HELD: A conviction based on circumstantial evidence requires the concurrence of the following elements: (a) there is more than one circumstance; (b) the facts from which the inferences are derived are proven; and (c) the combination of all the circumstances produces a conviction beyond reasonable doubt.[24] For such a conviction to withstand judicial scrutiny, the prosecution must further show that all the circumstances are inconsistent with the hypothesis that the

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

Furthermore, "the equipoise rule provides that where the evidence in a criminal case evenly balanced, the constitutional presumption of innocence should tilt the scales in favor of the accused." IN VIEW WHEREOF, the Court hereby REVERSES the appealed decision and ACQUITS the accused. PEOPLE VS COMESARIO 306 SCRA 400 (1999) On 2 May 1989, seven-year old Reynaldo Fernandez was found dead near the bank of Oraan Creek. His neck was slashed. He drowned. Rodolfo and Emilia Fernandez, parents of the victim, could not think of somebody else other than Isidro Comesario y Dacasin as the perpetrator of the crime. Emilia narrated that sometime in February 1989 accused-appellant paid her a nocturnal visit at their house while her husband was away in the fields. Accused-appellant allegedly offered to sell rice but when Emilia refused to buy for lack of money, accused-appellant countered that they could have sex instead. In a nutshell, the evidence for the prosecution is that accusedappellant had motive to kill Reynaldo; he allegedly felt bad when his advances were spurned by Emilia; three (3) days before the killing, accused-appellant had an altercation with the father of the victim; and, in the morning of 2 May 1989 accused-appellant was seen dragging a boy with his left hand while holding a scythe in his right towards Oraan Creek. The lone witness for the prosecution who allegedly saw the boy dragged could not recognize him. All he could say was that the boy was wearing a striped t-shirt and a pair of blue short pants. On the basis of the foregoing evidence, the court below found accused-appellant guilty as charged and sentenced him to reclusion perpetua. Accused-appellants conviction by the trial court hinged on circumstantial evidence. To validly invoke circumstantial evidence, it must be shown that there is more than one circumstance and the facts from which the inferences are derived are proven. The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. The circumstances must constitute an unbroken chain of events that can lead reasonably to the conclusion pointing to the accused to the exclusion of all others as the author of the crime. Logically, it is where the evidence is purely circumstantial that there should be an even greater need than usual to apply with vigor the rule that the prosecution cannot depend on the weakness of the defense and that any conviction must rest on nothing less than a moral certainty of guilt of the accused We believe that under all these circumstances taken together accused-appellant should be acquitted. First. An accused enjoys the presumption of innocence. He need not proved what is legally presumed. If he so desires he may present evidence on his behalf, but no matter how weak it is, he still deserves an acquittal. This is because the prosecution must not rely on the weakness of the evidence for the defense but on the strength of its own evidence. Unless the prosecution has successfully overturned the presumption of innocence, acquittal is inevitable. Second. The guilt of the accused must be proved beyond reasonable doubt. There must be moral certainty in our unprejudiced mind that it was accused-appellant who committed the crime. Absent this required quantum of evidence would mean exoneration for accused-appellant. The conviction of the accused-appellant having been based on very tenuous grounds, our judicial conscience cannot rest easy if we sustain his conviction by the court below. Third. Mere proof of motive, no matter how strong, is not sufficient to support a conviction, most especially if there is no other reliable evidence from which it may reasonably be deduced that the accused was the malefactor. The elements constituting the crime must be shown. Fourth. The invocation of circumstantial evidence is misplaced. As already adverted to, for circumstantial evidence to be validly invoked there must be more than one circumstance. In the instant case, the prosecution only presented a single circumstance and that was when Napoleon Veloria supposedly saw accused-appellant dragging a boy wearing a striped t-shirt and a pair of blue short pants towards Oraan Creek. Last. All we are saying is that when measured against the required quantum of evidence in criminal cases, the case for the prosecution has miserably failed in all aspects. Simply put, if we are to be guided by the established rules of evidence, we can safely say that the guilt of accused-appellant was not proved beyond reasonable doubt.

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Before we condemn x x x the crime must first be positively established and that the accused is guilty sans any scintilla of doubt. This is elementary and fundamental in our criminal justice systems. Any suspicion or belief that that accused is guilty no matter how strong cannot substitute for the quantum of evidence that is required to prove his guilt beyond reasonable doubt. Accused-appellant should not be punished for the failure of the prosecution to dispose of its burden to overcome the constitutional presumption of innocence and to establish his guilt of the accused beyond reasonable doubt. This Court has always stood by the rule that it is better to acquit a guilty person than to convict an innocent one. WHEREFORE, the assailed decision of the Regional Trial Court of Urdaneta, Pangasinan, finding accused-appellant ISIDRO COMESARIO Y DACASIN guilty murder is REVERSED and SET ASIDE for gross insufficiency of evidence; consequently, he is ACQUITTED of the crime charged. EUGENIO VS PEOPLE 549 SCRA 433 (2008) On 14 November 1995, Eugenio went to the house of private complainant Mangali and introduced Mangali to Saquitan, Ablaza, and another individual. Petitioner persuaded Mangali to loan P100,000 to Saquitan with a parcel of land in Sta. Ana, Metro Manila (Sta. Ana lot) as security for the loan. Petitioner assured Mangali that the Sta. Ana lot was covered by Transfer Certificate of Title (TCT) No. 171602 issued in Saquitans name. Mangali asked petitioner to confirm with the Register of Deeds of Manila the validity of TCT No. 171602. In the afternoon of that same day, petitioner informed Mangali that she saw the original of TCT No. 171602 on file with the Register of Deeds of Manila. With this assurance, Mangali agreed to extend the loan subject to Saquitans execution of a deed of sale of the Sta. Ana lot in his favor. Saquitan agreed and after the deed of sale was signed, Mangali released the loan in two tranches to Saquitan which the latter promised to pay on 21 December 1995. Subsequently, petitioner, on behalf of one Lourdes Ty, sought another P100,000 loan from Mangali, payable in January 1996 with a parcel of land in Quezon City (Quezon City lot) as security. Petitioner represented that the property was covered by TCT No. 92585 issued in Tys name. Mangali agreed to extend the loan, again subject to the condition that Ty execute a deed of sale over the Quezon City lot in his favor. When the loans lapsed and remained unpaid, Mangali inquired from the Register of Deeds of Manila and Quezon City on the status of TCT No. 171602 and TCT No. 92585, respectively. Mangali discovered that TCT No. 171602 had been cancelled on 5 October 1995 while TCT No. 92585 is not registered with the Register of Deeds of Quezon City. Mangali filed a complaint with the National Bureau of Investigation (NBI) which arranged an entrapment operation on 26 February 1996 in Mangalis house. Upon investigation by the NBI, it was discovered that the Epifania Saquitan who owned the Sta. Ana lot was a 79-year old woman who denied mortgaging the Sta. Ana lot or knowing petitioner and her coaccused. Issue Whether petitioner is guilty of Estafa thru Falsification of Public Documents. Ruling SC set aside the Court of Appeals ruling and acquit petitioner of the charges against her on the ground of reasonable doubt. The foregoing notwithstanding, we hold that the prosecution failed to prove petitioners guilt beyond reasonable doubt. The trial court found petitioner guilty of Estafa thru Falsification of Public Documents for petitioners principal role in the loan transactions between Mangali, on the one hand, and Saquitan and Ty, on the other hand. In further pinning liability on petitioner for her role in the alleged falsification of TCT No. 92585, the trial court, for lack of proof of petitioners participation in falsifying such document, relied on the disputable legal presumption that the possessor of a falsified document who makes use of such to her advantage is presumed to be the author of the falsification. In short, petitioners conviction below rested on an implied conspiracy with her coaccused to swindle Mangali, buttressed, as to one count, by a reliance on a disputable presumption of culpability. We reverse.

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

True, conspiracy need not be proved by direct evidence as the same can be inferred from the concerted acts of the accused. However, this does not dispense with the requirement that conspiracy, like the felony itself, must be proved beyond reasonable doubt. Thus, the presence of a reasonable doubt as to the existence of conspiracy suffices to negate not only the participation of the accused in the commission of the offense as principal but also, in the absence of proof implicating the accused as accessory or accomplice, the criminal liability of the accused. Here, petitioners acts which the lower courts considered as constitutive of her complicity in the supposed plot to swindle Mangali consisted of the following: (1) petitioner was the one who brought Saquitan, Ty, and Ablaza to Mangali; (2) petitioner was present in all the occasions Mangali met Saquitan, Ty, and Ablaza; (3) petitioner confirmed that TCT No. 171602 was registered with the Register of Deeds of Manila when in fact it was already cancelled; and (4) the real Epifania Saquitan denied mortgaging the Sta. Ana property to Mangali. By themselves, these circumstances can plausibly pass muster to prove petitioners involvement in a plan among the accused to swindle Mangali. However, when petitioners side is considered, taking into account admitted facts and unrebutted claims, her participation in the events leading to her arrest is cast in an entirely new light raising reasonable doubt as to her culpability. These facts and unrefuted claims are: (1) petitioner works for Mangali, on commission basis, in the latters check re-discounting and lending businesses and (2) the Civil Register of Manila certified as true copy the photocopy of TCT No. 171602 that Saquitan gave petitioner. As Mangalis agent, petitioner is obliged to bring prospective borrowers to Mangali; otherwise, she will not earn commissions. This also explains why she was present in all the ocassions Mangali met Saquitan and Ty she was pecuniarily interested in seeing to it that the deals she brokered were consummated to enable her to receive commission from Mangali. On petitioners disclosure to Mangali that TCT No. 171602 is registered with the Register of Deeds of Manila, petitioner merely relied on the certification by the Register of Deeds of Manila that the photocopy of TCT No. 171602 she brought with her was a true copy of the title on file in that office. The prosecution did not rebut this. We arrive at the same conclusion on petitioners alleged liability for Estafa using the allegedly falsified TCT No. 92585. Aside from relying on conspiracy to pin petitioner for this charge, the trial court also anchored its finding on the presumption that petitioner was party to the falsification of TCT No. 92585 because she had possession of such title. However, petitioners unrebutted testimony on this point is that it was Ty who brought with her what she represented to be her owners duplicate copy of TCT No. 92585 and which she presented to Mangali. At any rate, for the presumption of authorship of falsification to apply, the possessor must stand to profit or had profited from the use of the falsified document. Here, the extent of petitioners participation on Tys loan was to bring Ty (and Ablaza) to Mangali. The prosecution failed to show any proof that petitioner received a portion of the loan Mangali extended to Ty, just as there is no proof on record that she received any share from the loan Mangali extended to Saquitan. Petitioner is not a party to any of the documents Mangali, Ty, and Saquitan signed. In sum, we hold that the lower courts rulings are based on a misapprehension of facts justifying reversal on review. Indeed, when, as here, the circumstances surrounding the alleged commission of crimes are capable of two inferences, one favoring the innocence of the accused and the other her guilt, the inference for her innocence must prevail, consistent with the Constitutional presumption of her innocence. WHEREFORE, we SET ASIDE the Decision dated 30 November 2004 and the Resolution dated 11 May 2005 of the Court of Appeals. We ACQUIT petitioner Lolita Y. Eugenio of the charges against her on the ground of reasonable doubt. SO ORDERED.

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The Accused Tulin, Loyola, Infante and Changco were convicted in the RTC as principals, of the crime of piracy in Philippine Waters. The matter was then elevated to this Court. The arguments of accused-appellants may be summarized as follows: Roger P. Tulin, Virgilio I. Loyola, Andres C. Infante, Jr., and Cecilio O. Changco Accused-appellants Tulin, Loyola, Infante, Jr., and Cecilio Changco assert that the trial court erred in allowing them to adopt the proceedings taken during the time they were being represented by Mr. Tomas Posadas, a non-lawyer, thereby depriving them of their constitutional right to procedural due process. In this regard, said accused-appellants narrate that Mr. Posadas entered his appearance as counsel for all of them. However, in the course of the proceedings, or on February 11, 1992, the trial court discovered that Mr. Posadas was not a member of the Philippine Bar. This was after Mr. Posadas had presented and examined seven witnesses for the accused. Further, accused-appellants Tulin, Loyola, Infante, Cecilio, Changco uniformly contend that during the custodial investigation, they were subjected to physical violence; were forced to sign statements without being given the opportunity to read the contents of the same; were denied assistance of counsel, and were not informed of their rights, in violation of their constitutional rights. We affirm the conviction of all the accused-appellants. The issues of the instant case may be summarized as follows: (1) what are the legal effects and implications of the fact that a nonlawyer represented accused-appellants during the trial?; (2) what are the legal effects and implications of the absence of counsel during the custodial investigation? On the first issue, the record reveals that a manifestation was executed by accused-appellants Tulin, Loyola, Changco, and Infante, Jr. on February 11, 1991, stating that they were adopting the evidence adduced when they were represented by a non-lawyer. Such waiver of the right to sufficient representation during the trial as covered by the due process clause shall only be valid if made with the full assistance of a bona fide lawyer. During the trial, accusedappellants, as represented by Atty. Abdul Basar, made a categorical manifestation that said accused-appellants were apprised of the nature and legal consequences of the subject manifestation, and that they voluntarily and intelligently executed the same. They also affirmed the truthfulness of its contents when asked in open court. It is true that an accused person shall be entitled to be present and to defend himself in person and by counsel at every stage of the proceedings, from arraignment to promulgation of judgment . This is hinged on the fact that a layman is not versed on the technicalities of trial. However, it is also provided by law that "[r]ights may be waived, unless the waiver is contrary to law, public order, public policy, morals, or good customs or prejudicial to a third person with right recognized by law." (Article 6, Civil Code of the Philippines). Thus, the same section of Rule 115 adds that "[u]pon motion, the accused may be allowed to defend himself in person when it sufficiently appears to the court that he can properly protect his rights without the assistance of counsel." By analogy, but without prejudice to the sanctions imposed by law for the illegal practice of law, it is amply shown that the rights of accused-appellants were sufficiently and properly protected by the appearance of Mr. Tomas Posadas. An examination of the record will show that he knew the technical rules of procedure. Hence, we rule that there was a valid waiver of the right to sufficient representation during the trial, considering that it was unequivocally, knowingly, and intelligently made and with the full assistance of a bona fide lawyer, Atty. Abdul Basar. Accordingly, denial of due process cannot be successfully invoked where a valid waiver of rights has been made (People vs. Serzo, 274 SCRA 553 [1997]; Sayson vs. People, 166 SCRA 680 [1988]). However, we must quickly add that the right to counsel during custodial investigation may not be waived except in writing and in the presence of counsel. Thus, in this case, the uncounselled extrajudicial confessions of accused-appellants, without a valid waiver of the right to counsel, are inadmissible and whatever information is derived therefrom shall be regarded as likewise inadmissible in evidence against them. However, regardless of the inadmissibility of the subject confessions, there is sufficient evidence to convict accused-appellants with moral certainty. WHEREFORE, finding the conviction of accused-appellants justified by the evidence on record, the Court hereby AFFIRMS the judgment of the trial court in toto. SO ORDERED.

3.

RIGHT TO BE HEARD PERSONALLY OR BY COUNSEL

PEOPLE VS TULIN 364 SCRA 10 (2001)

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

CALLANGAN VS PEOPLE 493 SCRA 269 (2006) On May 28, 1999, Callangan was found guilty of the crime of perjury. On July 5, 1999, petitioner filed a timely motion for new trial on the ground that she was deprived of her day in court because of the gross negligence of her counsel, Atty. Ricardo C. Valmonte, and his utter lack of diligence in the performance of his duty to represent her in every stage of the suit. She attributed the following omissions to her counsel: 1. failure to file the demurrer to evidence despite leave of court previously granted; 2. failure to inform his client of the April 14, 1999 order of the court considering the intended demurrer to evidence as abandoned; 3. failure to attend the hearing for the reception of the evidence for the defense (i.e., petitioner) despite notice, which failure was deemed by the MTC as a waiver of petitioners right to present her evidence; 4. failure to seek proper relief from the adverse effects of said orders and 5. failure to appear on the promulgation of judgment. MTC and RTC denied the motions for new trial. However the SC found the petition meritorious. The cause of petitioners travails and misfortune was the negligence of her own counsel. However, in view of the circumstances of this case, outright deprivation of liberty will be the consequence of petitioners criminal conviction based solely on the evidence for the prosecution. Thus, to prevent a miscarriage of justice and to give meaning to the due process clause of the Constitution, the Court deems it wise to allow petitioner to present evidence in her defense. The rule that the negligence of counsel binds the client admits of exceptions. The recognized exceptions are: (1) where reckless or gross negligence of counsel deprives the client of due process of law, (2) when its application will result in outright deprivation of the clients liberty or property or (3) where the interests of justice so require. In such cases, courts must step in and accord relief to a party-litigant. The omissions of petitioners counsel amounted to an abandonment or total disregard of her case. They show conscious indifference to or utter disregard of the possible repercussions to his client. Thus, the chronic inaction of petitioners counsel on important incidents and stages of the criminal proceedings constituted gross negligence. In criminal cases, the right of the accused to be assisted by counsel is immutable. Otherwise, there will be a grave denial of due process. The right to counsel proceeds from the fundamental principle of due process which basically means that a person must be heard before being condemned. Petitioner was accorded grossly insufficient legal assistance by a counsel who did not devote himself to the defense of her cause. Counsels utter lack of action after the prosecution rested its case revealed an extreme shortcoming on his part. Such inaction definitely proved infidelity to and abandonment of petitioners cause. Therefore, in consonance with the demands of justice and to prevent any outright deprivation of liberty, the Court deems it best to give petitioner a chance to present evidence in her defense. The case should be remanded to the MTC for acceptance and appraisal of petitioners evidence. In sum, it is better to allow petitioner another occasion to present her evidence than to let her conviction stand based solely on the evidence of the prosecution. WHEREFORE, the petition is hereby GRANTED. The January 10, 2002 decision of the Regional Trial Court of Pasig City, Branch 69, in SCA No. 1933 and the October 8, 1999 and December 27, 1999 orders of the Metropolitan Trial Court of Pasig City, Branch 68 in Criminal Case No. 38674 are SET ASIDE. SO ORDERED.

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The Court resolved in a resolution dated 22 June 1990 to require the Solicitor General to comment on the appellant's manifestation to withdraw the appeal. In the Comment filed by the Solicitor General, the action recommended was for the Court to ascertain from the accusedappellant, through the clerk of court of the trial court, whether he desired the appointment of a counsel de oficio on appeal, in view of the reasons stated by him for the withdrawal of his appeal, and inasmuch as poverty should not preclude anyone from pursuing a cause. It seems that the accused-appellant was unaware that this Court can appoint a counsel de oficio to prosecute his appeal pursuant to Section 13 of Rule 122 of the Rules of Court and the constitutional mandate provided in Section 11 of Article III of the 1987 Constitution which reads as follows: Sec. 11. Free access to the courts and quasi-judicial bodies and adequate legal assistance shall not be denied to any person by reason of poverty. Paraphrasing Mr. Justice Malcolm, "Two (2) of the basic privileges of the accused in a criminal prosecution are the right to the assistance of counsel and the right to a preliminary examination. President Mckinley made the first a part of the Organic Law in his Instructions to the Commission by imposing the inviolable rule that in all criminal prosecutions the accused 'shall enjoy the right ... to have assistance of counsel for the defense' ". 6 Today said right is enshrined in the 1987 Constitution for, as Judge Cooley says, this is "perhaps the privilege most important to the person accused of crime." 7 chanrobles virtual law library This right to a counsel de oficio does not cease upon the conviction of an accused by a trial court. It continues, even during appeal, such that the duty of the court to assign a counsel de oficio persists where an accused interposes an intent to appeal. Even in a case, such as the one at bar, where the accused had signified his intent to withdraw his appeal, the court is required to inquire into the reason for the withdrawal. Where it finds the sole reason for the withdrawal to be poverty, as in this case, the court must assign a counsel de oficio, for despite such withdrawal, the duty to protect the rights of the accused subsists and perhaps, with greater reason. After all, "those who have less in life must have more in law." 9 Justice should never be limited to those who have the means. It is for everyone, whether rich or poor. Its scales should always be balanced and should never equivocate or cogitate in order to favor one party over another. In this spirit, the Court ordered the appointment of a counsel de oficio for the accused-appellant and for said counsel and the Solicitor General to file their respective briefs, upon submission of which the case would be deemed submitted for decision. MARTINEZ VS PEOPLE 332 SCRA 694 (May 31, 2000) Teofilo Martinez was accused of homicide in Crim. During the hearing on 23 June 1994 petitioner objected to petitioner's motion to be allowed to litigate as pauper and moved instead to strike out the entire testimony of the first witness for the prosecution . On 21 July 1994 the trial court issued an order overruling the objection. On 8 August 1994 the court denied the motion for reconsideration. This prompted petitioner to go to the Court of Appeals by way of a petition for certiorari alleging that the trial court acted with grave abuse of discretion amounting to lack of jurisdiction when it issued the assailed orders. On 23 August 1994 petitioner filed before the Court of Appeals a Motion to Litigate as Pauper attaching thereto supporting affidavits . The appellate court subsequently issued its resolution dated 21 March 1997 denying the motion . On 7 April 1997 petitioner filed a Motion for Reconsideration of the order denying his motion to litigate as a pauper, but this was similarly denied in the resolution of 8 October 1997. The only issue expressly raised by petitioner is whether a motion to litigate as pauper can be entertained by an appellate court. When petitioner filed on 23 August 1994 his original motion to appeal as pauper before the appellate court the applicable rule was the second paragraph of Sec. 16, Rule 41, of the 1964 Revised Rules of Court, which provides xxx A petition to be allowed to appeal as pauper shall not be entertained by the appellate court. When the 1997 Rules of Civil Procedure came into effect on 1 July 1997 the provision abovequoted was not reenacted.

4.

RIGHT TO FREE LEGAL ASSISTANCE

PEOPLE VS RIO 201 SCRA 702

Ricardo Rio was convicted of rape and sentenced to reclusion perpetua by the RTC and on appeal to the SC, Rio manifested his intention to withdraw the appeal due to his poverty.

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

It cannot be inferred from any of the aforementioned provisions that the restrictive policy enunciated by Sec. 16, Rule 41, of the 1964 Revised Rules of Court was carried over to the 1997 Rules of Civil Procedure. Nowhere can we find a provision to the effect that "(a) petition to be allowed to appeal as pauper shall not be entertained by the appellate court." We resolve to apply the present rules on petitioner retrospectively. Statutes regulating the procedure of the courts will be construed as applicable to actions pending and undetermined at the time of their passage. In that sense and to that extent procedural laws are retroactive. We therefore hold that a motion to litigate as an indigent can be made even before the appellate courts, either for the prosecution of appeals, in petitions for review or in special civil actions. WHEREFORE, the questioned Resolution of the Court of Appeals dated 10 November 1997 dismissing the petition for certiorari of petitioner Teofilo Martinez and its Resolution dated 21 January 1998 denying reconsideration are SET ASIDE for having been issued with grave abuse of discretion. Accordingly, this case is REMANDED for appropriate action to the Court of Appeals which is further ordered to allow petitioner to litigate as pauper and to return to him the amount of P420.00 representing the docket fees he paid.

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The rule enjoining the charging of two or more offenses in an information has for its aim to give the defendant the necessary knowledge of the charge to enable him to prepare his defense. The State should not heap upon the defendant two or more charges which might confuse him in his defense. However, when the accused fails, before arraignment, to move for the quashal of such information and goes to trial thereunder, he thereby waives the objection, and may be found guilty of as many offenses as those charged in the information and proved during the trial. In this case, the appellants failed to move for quashal before arraignment; thus, they are deemed to have waived the defect and are considered charged with the offenses of illegal possession of firearms and multiple murder. Indeed, they were not deprived of their constitutional right to be informed of the accusation against them. Granting arguendo that the Information in Criminal Case No. 21-1157 charged the single offense of illegal possession of firearms used in the killing of three persons, appellants could still be convicted of double murder. The Rules of Court provides that an accused may be convicted not only of the offense charged in the information, but also of the offense necessarily included therein. An offense is necessarily included in that which is charged when some of the elements of the latter, as alleged in the information, constitute the former. As already stated, an examination of the allegations in the above-mentioned Information reveals that all the elements of murder are included therein. It must be stressed further that these elements were sufficiently established during the trial. To recapitulate: the Information in Criminal Case No. 211157 (the second case) charged two crimes; namely, the illegal possession of firearms and the multiple murder of Alfredo Tango, Sonny Quintua and Nestor Agustin. The trial court acquitted appellants of illegal possession; hence, we can no longer review this aspect of the Decision without violating the right against double jeopardy. However, the prosecution amply proved, and even the trial court conceded the elements of the double murder of Tango and Quintua. Through their failure to object to the duplicitous charges, the accused effectively waived their right against multiple offenses in a single information. More important, they had been informed of the elements of the multiple murder charged against them in the second case; in fact, they defended themselves from it by attacking the credibility of the prosecution witnesses and by setting up the defense of alibi, albeit unsuccessfully. And granting that the appellants were charged with the single crime of illegal possession of firearms used in the killing of three persons, they could still be convicted of murder in spite of their acquittal for illegal possession. Under the Constitution, an accused has the right to be informed, before trial, of the nature of the offense with which he or she is charged. Regardless of how conclusive and convincing the evidence of guilt may be, there can be no conviction, unless the offense is charged (or is necessarily included) in the complaint or information. On the other hand, an accused, who fails to object prior to arraignment to a duplicitous information, may be found guilty of any or all of the crimes alleged therein and duly proven during the trial, for the allegation of the elements of such component crimes in the said information has satisfied the constitutional guarantee that an accused be informed of the nature of the offense with which he or she is being charged. People vs. Parazo, 310 SCRA 146, July 8, 1999, G.R. No. 121176 Facts: Marlon Parazo was convicted by the RTC of Cabanatuan City for rape and frustrate homicide which imposed the supreme penalty of death. On May 29, 1997, appellant interposed the Motion for Reconsideration under consideration, bringing to the attention of the Court facts and circumstances, such as the absence of a sign language expert, which if true would warrant the setting aside of his judgment

5.

RIGHT TO BE INFORMED OF NATURE AND CAUSE OF ACCUSATION

People vs. Manalili (294 SCRA 220) G.R. No. 121671. August 14, 1998

Facts: 3 Informations against the appellants Manalili and Reyes were simultaneously filed in the Regional Trial Court of Ilagan, Isabela, Branch 16. The first case charged the two with attempted robbery; the second case, charged them with killing three persons; the third case charged them with the shooting and wounding, but not the killing, of three other persons. The trial court adjudged appellants guilty of the complex crime of attempted robbery with homicide under Article 297 of the Revised Penal Code.

Held:

Appellants were not properly charged with this offense in any of the three Informations filed against them. There was no information charging the special complex crime of attempted robbery with multiple homicide. Thus, to hold appellants liable for this offense, notwithstanding the absence of the proper information, is to violate the explicit guarantee of the Constitution, which provides: (2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable. (Italics supplied.)

The hornbook doctrine in our jurisdiction is that an accused cannot be convicted of an offense, unless it is clearly charged in the complaint or information. Constitutionally, he has a right to be informed of the nature and cause of the accusation against him. To convict him of an offense other than that charged in the complaint or information would be violative of this constitutional right. Indeed, the accused cannot be convicted of a crime, even if duly proven, unless it is alleged or necessarily included in the information filed against him. We are not unaware of the rule that an information charging more than one offense is fatally defective and may be quashed on the ground of duplicity of offenses. The rationale for this rule was explained in this wise:

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

of conviction. Held:

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On February 10, 1998, the Court resolved to grant appellants Urgent Omnibus Motion: (1) to hold in abeyance consideration of his motion for reconsideration pending his medical examination; (2) to allow a supplemental motion for reconsideration after his medical examination; and (3) to submit him (appellant) for examination by a physician of the Supreme Court. Subsequently, or on January 19, 1999, to be precise, appellant was allowed to be brought to the UP-PGH Medical Center, with appropriate escorts, to undergo the necessary neurologic and otolaryngologic evaluation and work-up.

Appellant is mistaken. When the hearings for his petition for bail were conducted, the trial court had already acquired jurisdiction over his person. Settled is the rule that jurisdiction over the person of the accused is acquired upon his arrest or voluntary appearance. In the case at bar, the trial court acquired jurisdiction over the person of the appellant when he was arrested on 19 March 1997. His arrest, not his arraignment, conferred on the trial court jurisdiction over his person. Arraignment is the formal mode and manner of implementing the constitutional right of an accused to be informed of the nature and cause of the accusation against him. The purpose of arraignment is, thus, to apprise the accused of the possible loss of freedom, even of his life, depending on the nature of the crime imputed to him, or at the very least to inform him of why the prosecuting arm of the State is mobilized against him. Admittedly, appellant was arraigned after the case was submitted for decision. The question is: Were appellants rights and interests prejudiced by the fact that he was arraigned only at this stage of the proceedings? We do not think so. Appellants belated arraignment did not prejudice him. This procedural defect was cured when his counsel participated in the trial without raising any objection that his client had yet to be arraigned. In fact, his counsel even crossexamined the prosecution witnesses. His counsels active participation in the hearings is a clear indication that he was fully aware of the charges against him; otherwise, his counsel would have objected and informed the court of this blunder. Moreover, no protest was made when appellant was subsequently arraigned. The parties did not question the procedure undertaken by the trial court. It is only now, after being convicted and sentenced to two death sentences, that appellant cries that his constitutional right has been violated. It is already too late to raise this procedural defect. This Court will not allow it.

Held: The results of medical examinations conducted on appellant indicate that appellant is really a deaf-mute, a mental retardate, whose mental age is only seven (7) years and nine (9) months, and with low IQ of 60 only. Records on hand show that appellant was tried below without the benefit of a sign language expert. The fact that he was helped and assisted by a person who has been known to him since 1983, as noted by the trial court of origin and appearing on page 6 of the transcript of stenographic notes for February 8, 1995, is of no moment, absent any clear showing that appellant was aided by a competent sign language expert able to fully understand and interpret the actions and mutterings of appellant. As held in People v. Crisologo: The absence of an interpreter in sign language who could have conveyed to the accused, a deaf-mute, the full facts of the offense with which he was charged and who could also have communicated the accuseds own version of the circumstances which led to his implication in the crime, deprived the accused of a full and fair trial and a reasonable opportunity to defend himself. Not even the accuseds final plea of not guilty can excuse these inherently unjust circumstances. The absence of a qualified interpreter in sign language and of any other means, whether in writing or otherwise, to inform the accused of the charges against him denied the accused his fundamental right to due process of law. The accuracy and fairness of the factual process by which the guilt or innocence of the accused was determined was not safeguarded. The accused could not be said to have enjoyed the right to be heard by himself and counsel, and to be informed of the nature and cause of the accusation against him in the proceedings where his life and liberty were at stake. All the foregoing studiedly considered, the court is of the irresistible conclusion that movant richly deserves a re-arraignment and re-trial, to the end that only upon proof of guilt beyond reasonable doubt may he be consigned to the lethal injection chamber.

Mupas vs. People Facts: Jun and Gil Mupas were found guilty of frustrated homicide by the Regional Trial Court of Malaoan, La Union. Jun and Gil contended that Rogelio had failed to identify with moral certainty that Gil had been one of those who inflicted the injury on him. They pointed out that Rogelio had failed to categorically state that Gil and Banjo Mupas are one and the same person. After a review of the records of the case, the Court of Appeals concluded that Banjo Mupas and Gil Mupas are one and the same person. The Court of Appeals observed that when Banjo posted a bail bond in the case entitled People of the Philippines v. Jun Mupas and Banjo Mupas, he had made no objection to the caption of the case and he had even signed his name as Gil Mupas. Secondly, when the Information was amended to include Gils alias, Banjo did not interpose any objection to the correction. Lastly, Rogelio had not been able to identify Banjo in court due to the latters absence at the time of his testimony Jun and Gil are now before the Court reiterating their assertion that the prosecution failed to establish Gils identity as one of the perpetrators of the crime and that his defense of denial was duly supported by clear and convincing evidence. Moreover, they asserted that in Juns case, the prosecution had failed to prove intent to kill and as such, he should be convicted only of the crime of physical injuries.

People vs. Pangilinan, 518 SCRA 358, G.R. No. 171020 Facts: Pangilinan was charged with 2 counts of rape. Two Informations were filed charging appellant with rapping his daughter.d He was convicted by the RTC on both counts. The Court of Appeals upheld the two death sentences imposed on appellant but modified the award of damages. Pangilinan assails his conviction because he was not properly arraigned. Since he was arraigned only after the case was submitted for decision, said irregularity, he argues, is a procedural error which is prejudicial to the appellant and is tantamount to denial of his constitutional right to be informed of the accusation against him. He claims that his subsequent arraignment did not cure the defect in the trial proceedings because at the time the petition for bail was heard, the trial court had not yet acquired jurisdiction over his person.

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

Held: Although the Information charged petitioners with frustrated homicide, a finding of guilt for the lesser offense of less serious physical injuries may be made considering that the latter offense is necessarily included in the former, and since the essential ingredients of physical injuries constitute and form part of those constituting the offense of homicide. In sum, absent competent proof, Jun should be held liable only for the crime of less serious physical injuries under Article 265 of the Revised Penal Code, as amended. Gil, alias Banjo, must be absolved from any liability for failure of the prosecution to conclusively prove that he had conspired with Jun in the commission of the crime or that he had any participation in it.

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The Court also observes that there is duplicity of the offenses charged in the information, which is a ground for a motion to quash. Three (3) separate acts of rape were charged in one information only. But the failure of appellant to interpose an objection on this ground constitutes waiver.

People vs. Aure, 569 SCRA 836 Facts:

Caloocan City Regional Trial Court found SPO1 Aure and SPO1 Ferol guilty of rape, and imposing upon them the penalty of reclusion perpetua. Two separate informations for rape were filed with the RTC charging appellants of rape, thus: In Criminal Case No. C-58617:

People vs. Tabio, 544 SCRA 156 Facts: Tabio was charged with three (3) counts of rape in a single Information, the accusatory portion of which reads as follows: That between June 13, 2002 and June 28, 2002 in [Aurora] the said accused, did then and there, unlawfully, feloniously and willfully, have carnal knowledge of mentally retarded AAA by means of force and intimidation three times all committed while the victim was alone inside their house and during nighttime which was taken advantage of to facilitate the commission of the crime. CONTRARY TO LAW. RTC handed down a decision finding appellant guilty and imposing the penalty of death on three (3) counts of qualified rape. The Court of Appeals affirmed with modification the decision of the trial court. The appellate court found appellant guilty of all three (3) counts for simple rape only and not qualified rape.

That on or about the 7th day of November, 1999 in Caloocan City, Metro Manila, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together and mutually helping one another, with lewd design and by means of force and intimidation, did then and there willfully, unlawfully and feloniously lie and have sexual intercourse with one AAA, 45 years old, married, against the latters will and without her consent. In Criminal Case No. C58693: That on or about the 7th day of November, 1999 in Caloocan City, Metro Manila, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together and mutually helping one another, with lewd design and by means of force and intimidation did then and there willfully, unlawfully and feloniously lie and have sexual intercourse with one AAA, 45 years old, against the latters will and without her consent.

Held: The information should have warranted a judgment of guilt only for simple, not qualified rape. We quote with approval the appellate court when it said: Under Article 266-B(10) of the Revised Penal Code, knowledge by the offender of the mental disability, emotional disorder, or physical handicap at the time of the commission of the rape is the qualifying circumstance that sanctions the imposition of the death penalty. Rule 110 of the 2000 Rules of Criminal Procedure requires both qualifying and aggravating circumstances to be alleged with specificity in the information. In the case at bench, however, the information merely states that the appellant had carnal knowledge with a mentally retarded complainant. It does not state that appellant knew of the mental disability of the complainant at the time of the commission of the crime. It bears stressing that the rules now require that the qualifying circumstance that sanctions the imposition of the death penalty should be specifically stated in the information. Article 266-B (10) of the Revised Penal Code could not, thus, be applied and the supreme penalty of death could not be validly imposed. Rule 110 of the 2000 Rules of Criminal Procedure is clear and unequivocal that both qualifying and aggravating circumstances must be alleged with specificity in the information.

After trial, the RTC rendered a Decision on 5 December 2000 convicting Aure of rape in Criminal Case No. C-58617 and acquitting him of rape in Criminal Case No. C-58693. On the other hand, Ferol was convicted of rape in Criminal Case No. C58693 but was acquitted of rape in Criminal Case No. C-58617. Court of Appeals promulgated its Decision affirming in toto the RTC Decision. Appellants maintain that the foregoing findings and rulings of the RTC are inconsistent with the allegations of conspiracy in the two informations and that the RTC cannot individually and separately convict appellants of rape because the informations in the two cases alleged conspiracy between them in raping AAA. Also, appellant Ferol cannot be convicted in Criminal Case No. C-58693 of rape committed on 8 November 1999 because such fact was not alleged in the informations (what was written was November 7, 1999). Appellants argued that the said finding and ruling of the RTC violated their constitutional rights to be informed of the nature of the case against them, to be presumed innocent of the charges, and to due process.

Held: Although the informations in Criminal Cases No. C58617 and No. C-58693 both alleged that appellants conspired in raping AAA, it does not necessarily follow that the RTC cannot individually and separately convict appellants of rape. The rule is that once a conspiracy is established, the act of one is the act of all, and each of the conspirators is liable for the crimes committed by the other conspirators. It follows then that if the prosecution fails to prove

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

conspiracy, the alleged conspirators should be held individually responsible for their own respective acts. In the instant cases, the RTC ruled that the prosecution failed to establish conspiracy between appellants in raping AAA. Nevertheless, on the basis of AAAs credible testimony and documentary evidence for the prosecution, the RTC found that appellant Aure alone raped AAA on 7 November 1999 and that appellant Ferol alone raped AAA on 8 November 1999. Thus, the RTC was correct in holding appellants individually responsible for their respective acts of rape. It is true that the information in Criminal Case No. C58693 alleged that appellants conspired in raping AAA on 7 November 1999, and that the RTC convicted appellant Ferol alone in Criminal Case No. C-58693 of raping AAA on 8 November 1999. Nonetheless, the discrepancy on the actual date of rape does not constitute a serious error warranting the reversal of appellant Ferols conviction. The date or time of the commission of rape is not a material ingredient of the said crime because the gravamen of rape is carnal knowledge of a woman through force and intimidation. The precise time or date when the rape took place has no substantial bearing on its commission. As such, the date or time need not be stated with absolute accuracy. It is sufficient that the information states that the crime has been committed at any time as near as possible to the date of its actual commission. Further, we have held that even a variance of a few months between the time set out in the information and that established by the evidence during trial does not to constitute a serious error warranting the reversal of conviction solely on that ground.[64] In the case at bar, the difference between date/time of the rape as alleged in Criminal Case No. C-58693 (7 November 1999) and as testified to by AAA (8 November 1999) was one day only. Indeed, appellant Ferols actual commission of rape was not that remote or far with the date of rape alleged in the information under Criminal Case No. C-58693. Besides, all the essential elements of rape were stated in the said information and the prosecution had duly established that appellant Ferol had carnal knowledge of AAA through force and intimidation on 8 November 1999.

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People vs. Gines, 197 SCRA 481 (May 27, 1991) Facts: An Information for libel was filed against Labo, Floresca and Manaois as editor/publisher of the Peoples Bagong Taliba in connection with the publication of the article captioned Inihablang ExJustice. Private complainant filed a motion for postponement on the ground that he has a serious eye ailment that needs immediate medical attention. When the case was set for initial hearing, counsel for defendants failed to appear despite due notice so hearing was reset. Several resetting of the hearings were held at the instance of the private complainant. Court dismissed the case for failure of private complainant to appear.

Issue:

Whether the right of the accused to speedy trial had been violated to entitle them to the dismissal of the case. Held: Right to speedy trial has not been violated and the dismissal of the case is premature and erroneous. The right of the accused to a speedy trial is guaranteed to him by the Constitution but the same shall not be utilized to deprive the State of a reasonable opportunity of fairly indicting criminals. It secures the rights to a defendant but it does not preclude the rights of public justice. The Court is convinced that private complainants absences at the hearings of the case were in good faith and that he had justifiable and meritorious reasons therefore. Said absences are evidently not capricious, oppressive, nor vexatious to the two accused who had waived their appearance at the trial of the case. It should be remembered that the right to a speedy trial is relative, subject to reasonable delays and postponements arising from illness, medical attention, body operations, as in the instant case where it was satisfactorily proven that private complainant had to undergo eye operations, hospitalization and a medical check-up abroad. 8 months after the Information was filed is not such an extended, prolonged or lengthy duration as to cause capricious and vexatious delay. Speedy trial means one that can be had as soon after indictment is filed as the prosecution can with reasonable diligence prepare for trial. While accused persons do have rights, many of them choose to forget that the aggrieved also have the same rights.

People vs. Guevarra, 570 SCRA 288 (October 29, 2008) Facts: RTC Batangas found Guevarra guilty of murder, and imposing upon him the penalty of reclusion perpetua. Court of Appeals promulgated its Decision affirming with modification the RTC Decision. It held that an additional amount of P25,000.00 as exemplary damages should also imposed on appellant because the qualifying circumstance of treachery attended the killing of Inspector Barte.

Held: We agree with the RTC and the Court of Appeals that the qualifying circumstance of treachery and the special aggravating circumstance of use of an unlicensed firearm attended the killing of Inspector Barte. It is settled that aggravating/qualifying circumstances must be alleged in the information and proven during the trial before they can be appreciated. In the case at bar, treachery was alleged in the information and all its elements were duly established by the prosecution.

(Mae Sam) FRANCISCO GUERRERO vs. HON. COURT OF APPEALS Information for Triple Homicide through Reckless Imprudence was filed against petitioner before the Court of First Instance, Caloocan City. The accused being then the pilot of non-commercial Aircraft, without taking the necessary care and precaution to avoid accidents or injuries to persons, maneuver and/or conduct the flight of said aircraft from the airport with four passengers on board, and after several minutes, the engine quitted twice indicating that there was no

6.

RIGHT TO SPEEDY, IMPARTIAL AND PUBLIC TRIAL

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

more fuel, prompting the accused to make an emergency manner landing on a fishpond, resulting to the fatal injuries in three passengers. Due to several postponements, all filed by the petitioner, the prosecution was finally able to start presenting its evidence in 1972 after petitioner entered his plea of "Not Guilty". In 1975, the prosecution finally rested its case. In 1978, the defense rested its case. It would appear that from the RTC of Caloocan City, the case was subsequently assigned to another branch presided over by Judge Alfredo Gorgonio who apparently did not take action thereon. In 1989, Court Administrator ordered the reraffling of the case from Caloocan City, Navotas-Malabon which, under the provisions of B.P. 129, had jurisdiction over the case. In 1990, Judge Aquino ordered the parties to follow-up and complete the transcript of stenographic notes within 30 days considering that the same was found to be incomplete. Since the parties were not able to complete the transcript of stenographic notes, the court ordered the retaking of the testimonies of the witnesses. Hence, petitioner filed petition for certiorari, prohibition and mandamus for the review of the orders of the Regional Trial Court anent petitioner's motion to dismiss, as well as his motion for reconsideration. The petition was anchored on the alleged violation of petitioner's constitutional right to speedy trial. True, indeed, the 1987 Constitution provides the right not only to a speedy trial but also to a speedy judgment after trial when in Section 16, Article III, it provides: All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial or administrative bodies. Hence, the Constitution mandates dispatch not only in the trial stage but also in the disposition thereof, warranting dismissals in case of violations thereof without the fault of the party concerned, not just the accused. In the recent case of People vs. Leviste, this Court citing Gonzales vs. Sandiganbayan and People vs. Tampal, reiterated the ruling that the right to speedy trial is violated only where there is an unreasonable, vexatious and oppressive delay without the participation or fault of the accused, or when unjustified postponements are sought which prolong the trial for unreasonable lengths of time. On the other hand, the case of Caballero vs. Alfonso, Jr., laid down the guidelines in determining the applicability of the "speedy disposition" formula: speedy disposition of cases' is a relative term. Just like the constitutional guarantee of "speedy trial" accorded an accused in all criminal proceedings, "speedy disposition of cases" is a flexible concept. It is consistent with delays and depends upon the circumstances. What the Constitution prohibits are unreasonable, arbitrary and oppressive delays which render rights nugatory. In the determination of whether or not the right to a "speedy trial" has been violated, certain factors may be considered and balanced against each other. These are length of delay, reason for the delay, assertion of the right or failure to assert it, and prejudice caused by the delay. The same factors may also be considered in answering judicial inquiry whether or not a person officially charged with the administration of justice has violated the "speedy disposition of cases" guarantee. In the case before us, the petitioner merely sat and waited after the case was submitted for resolution in 1979. More importantly, it was only after the new trial judge reset the retaking of the testimonies to November 9, 1990 because of petitioner's absence during the original setting on 1990 that the accused suddenly became zealous of safeguarding his right to speedy trial and disposition. In the present case, there is no question that petitioner raised the violation against his own right to speedy disposition only when the respondent trial judge reset the case for rehearing. It is fair to assume that he would have just continued to sleep on his right -- a situation amounting to laches -- had the respondent judge not taken the initiative of determining the non-completion of the records and of ordering the remedy precisely so he could dispose of the case. The matter could have taken a different dimension if during all those ten years between 1979 when accused filed his memorandum and 1989 when the case was reraffled, the accused showed signs of asserting his right which was granted him in 1987 when the new constitution took effect, or at least made some overt act (like a motion for early disposition or a motion to compel the stenographer to transcribe stenographic notes) that he was not waiving it. As it is, his silence would have to be interpreted as a waiver of such right. While this Court recognizes the right to speedy disposition quite distinctly from the right to a speedy trial, and although this Court has always zealously espoused protection from oppressive and vexatious

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delays not attributable to the party involved, at the same time, we hold that a party's individual rights should not work against and preclude the people's equally important right to public justice. In the instant case, three people died as a result of the crash of the airplane that the accused was flying. It appears to us that the delay in the disposition of the case prejudiced not just the accused but the people as well. Since the accused has completely failed to assert his right seasonably and inasmuch as the respondent judge was not in a position to dispose of the case on the merits due to the absence of factual basis, we hold it proper and equitable to give the parties fair opportunity to obtain (and the court to dispense, substantial justice in the premises. Tai Lim vs. CA The petitioner was arraigned and pleaded not guilty to the charge. Thereafter, the initial trial of the case was set on September 7, 1995 which, however, was reset 11 times. Forthwith, petitioner filed a "Motion to Dismiss" the case invoking his right to a speedy trial. The prosecution failed to file its Comment within the period granted it. In the interim, the building housing the court was burned and the court records had to be reconstituted. Petitioner filed with the Court of Appeals a petition for certiorari and mandamus praying that the writs of certiorari and mandamus be granted and that Criminal Case be ordered dismissed for failure of the prosecution to prove its case despite eleven postponements spread over an unreasonably long period of one year and three months in violation of the right of petitioner, as an accused, to speedy trial. Petitioner avers that the manifestly unreasonable lengthy period the proceedings had dragged on with the charge remaining unproved by reason of its unpreparedness for lack of witnesses demonstrably and eloquently attests that there has been "vexatious, capricious and oppressive delay," which is anathema to the right of an accused to speedy trial with its salutary objective "to assure that an innocent person may be freed from anxiety and expense of a court litigation, or of otherwise having his guilt determined within the shortest time compatible with the presentation and consideration of whatever legitimate defense he may interpose." Petitioner further contends that it is the duty of the prosecution to be ready at all times to present its case on the dates of the scheduled hearing sweeping aside all reasons adduced by the prosecution as unjustifiable. First, not all the eleven postponements were made at the instance of the prosecution. A hearing was reset because the petitioner was without counsel, and another hearing was reset because petitioner's newly engaged counsel was not available. Second, contrary to petitioner's averment, the reasons for the prosecution's postponements were reasonable and were not intended merely to delay the proceedings of the case. The hearing of the case had to be postponed several times because there was no proof that the prosecution witnesses were duly served with subpoena. The other reasons for the postponement of the hearing, such as the re-raffling of the case to another branch and the fire which razed the building housing the court and its records, are circumstances beyond the control of the prosecution. The right of an accused to a speedy trial is guaranteed to him by the constitution but the same shall not be utilized to deprive the State of a reasonable opportunity of fairly prosecuting criminals. It secures rights to an accused but it does not preclude the rights of the State to seek justice. Both the State and the accused are entitled to due process. Unjustified postponements which prolong the trial for an unreasonable length of time are what offend the right of the accused to speedy trial. In the recent case of Binay vs. Sandiganbayan, we held that the right to a speedy disposition of a case, like the right to speedy trial, is deemed violated only when the proceedings is attended by vexatious, capricious, and oppressive delays; or when unjustified postponements of the trial are asked for and secured, or when without cause or justifiable motive a long period of time is allowed to elapse without the party having his case . . . A mere mathematical reckoning of the time involved, therefore, would not be sufficient. DE ZUZUARREGUI vs. ROSETE This is a complaint against Judge Maxwel R. Rosete of the Metropolitan Trial Court, Branch 58, San Juan, Metro Manila, for gross ignorance of the law, grave abuse of authority, incompetence, and impropriety, for dismissing with prejudice a criminal case for falsification of a private document filed by complainant.

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

The information in Criminal Case entitled Pp. v. Lim and Barrameda, alleged that the accused conspired in preparing and executing an authorization letter bearing the forged signature of complainant de Zuzuarregui and presenting said falsified authorization letter and a fictitious driver's license to the Bureau of Customs to secure the release of a Ford Expedition, to the damage and prejudice of complainant. The scheduled hearings of the case were subsequently postponed for various reasons. The private prosecutor, with the approval of the public prosecutor and without any objection from the defense, moved for the postponement of the trial. The prosecution requested another postponement because complainant had earlier left for the United States to undergo a carotid operation. Instead of acting upon said motion, respondent issued an order dismissing the criminal case with prejudice because of the prosecution's failure to present evidence. Complainant averred that the order of respondent had no basis as the accused themselves had not at any time invoked their right to a speedy trial on or before the scheduled hearing. On the other hand, complainant claims that the prosecution's motion for postponement of the hearing was justified as he was then in the United States awaiting his carotid operation. He cites the voluminous records of the case in the custody of the Bureau of Customs. The Office of the Court Administrator recommends that the case be redocketed as a regular administrative matter and that the respondent be fined in the amount of two thousand pesos for grave abuse of discretion. It expresses the view that while the hearings of the case had been rescheduled many times at the instance of the defense, the trial court and the prosecution never interposed any objection thereto. Since the accused themselves sought for the postponements of the trial, there was deemed a waiver or abandonment of their right to invoke the right to speedy trial. More importantly, the dismissal of the case was not even at the instance of the accused, but by the trial court. On the other hand, it observed that the two postponements sought by the prosecution were for valid and meritorious reasons. Hence, it found respondent's dismissal of the criminal case an abuse of judicial discretion. We find the recommendation well taken. To the contrary, the records show that of the 15 postponements, five were by agreement of both the prosecution and the defense. Likewise, the hearing was postponed six times at the instance of the defense either because of the non-appearance of the accused despite notice or because of its manifestation that it be given an opportunity to settle the civil aspect of the case. On the other hand, the resetting of the case by the private prosecutor from February 9, 2000 to April 12, 2000 was with the prior approval of the public prosecutor and without any objection from the defense. On the scheduled hearing of April 12, 2000, the prosecution requested a resetting of the case, but respondent dismissed the case with prejudice. We find this an abuse of discretion on the part of respondent. Needless to state, the request was not for any flimsy or trivial excuse, but precisely because complainant was in the United States to undergo a carotid operation, a fact duly proven. The right to speedy trial is a relative one, subject to reasonable delays and postponements arising from illness, medical attention, and body operations, as in the present case where it was duly proven that complainant had to undergo a carotid operation. Speedy trial means one that can be had soon after indictment is filed as the prosecution can, with reasonable diligence, prepare for trial. As has been stated, accused persons sometimes forget that those who are aggrieved also have rights. For this reason, in determining the right of the accused to speedy trial, courts should do more than a mathematical computation of the number of postponements of scheduled hearings of the case. What offends the right to speedy trial are unjustified postponements which prolong trial for an unreasonable length of time. Neither can respondent excuse himself in dismissing the case on the ground that he did so in the exercise of his judicial discretion. While respondent may have a laudable purpose in ensuring the prompt disposition of cases, i.e., one that is free from vexatious, capricious, and oppressive delays, he must not lose sight of the fact that his primordial concern must be justice and fairness. Since no right of the accused in the criminal case had been violated, the order of respondent motu proprio dismissing with prejudice the Criminal Case constituted a grave abuse of his discretion. LUMANLAW vs. PERALTA Lumanlaw was apprehended by the Western Police District for illegal possession of a dangerous drug. A Commitment Order was consequently issued directing the detention of petitioner in the Manila

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City Jail and setting the latters arraignment. Petitioners counsel manifested his intention to file a motion for preliminary investigation. Because of the Manifestation, the arraignment was deferred. The resolution of these matters was overtaken by the presiding Judge retirement from public service. Thus, the arraignment scheduled had to be postponed. The arraignment was postponed again, this time due to the absence of petitioners counsel. Notably, a year had passed since the filing of the Information, yet Lumanlaw remained uninformed of the charges against him, while continuing to be in detention and despair all throughout that period of limbo. Owing to this insufferable state of affairs, petitioners counsel manifested his intention to file a motion to dismiss on account of the violation of his clients right to a speedy trial. The arraignment did not take place, however, because the accused was not produced in court by the jail wardens concerned. It turned out that the trial court had not issued a "produce order" to the Manila City Jail. Now frustrated with the repeated postponements, petitioner filed a Second Urgent Motion to Dismiss. Relying on the provisions of the Revised Rules of Criminal Procedure, mandating that arraignment should be held within thirty (30) days from the date the court acquired jurisdiction over the accused, petitioner argued that the protracted delay of his arraignment violated his constitutional right to speedy trial. "Whether or not the failure of public respondent to conduct the arraignment of the petitioner despite the delay of one (1) year, nine (9) months and four (4) days constitute undue and unjustifiable delay in violation of his constitutional right to speedy trial. The Petition is meritorious. Speedy Trial Construed . The thirty-day period invoked by petitioner was construed in Solar Team Entertainment, Inc. v. How. It was held in that case that the period was not absolute. Certain delays were allowed by law and excluded from the computation of the time within which trial must commence. The Court ruled that those exclusions should "reflect the fundamentally recognized principle that the concept of speedy trial is a relative term and must necessarily be a flexible concept." The right to a speedy disposition of a case, like the right to speedy trial, is deemed violated only when the proceeding is attended by vexatious, capricious, and oppressive delays; or when unjustified postponements of the trial are asked for and secured, or when without cause or justifiable motive a long period of time is allowed to elapse without the party having his case tried. Equally applicable is the balancing test used to determine whether a defendant has been denied his right to a speedy trial, or a speedy disposition of a case for that matter, in which the conduct of both the prosecution and the defendant are weighed, and such factors as length of the delay, reason for the delay, the defendants assertion or non-assertion of his right, and prejudice to the defendant resulting from the delay, are considered." Reasonable Postponements. It should be stressed that petitioner never acquiesced to the seemingly endless postponements of the arraignment. He asserted his right to speedy trial twice, but was denied by respondent in both instances. The delay caused by Judge Arranzs retirement may be deemed a normal part of the ordinary conduct of court business and was not necessarily unreasonable. Unjustified Delay. There were fourteen postponements in all. Going over the causes for the delays, we see the lack of earnest effort on the part of respondent to conduct the arraignment as soon as the court calendar would allow. Given the length and the unreasonableness of the majority of the delays, a violation of the right of petitioner to speedy trial becomes manifest. Almost two years elapsed from the filing of the Information against him until the filing of this Petition; incredibly, he has not been arraigned. An arraignment takes, at most, ten minutes of the courts business and does not normally entail legal gymnastics. Postponement Due to Absence of Counsel. The appointment of a counsel de oficio in the absence of the defendants counsel de parte is not prohibited, not even by the Constitution, especially when the accused themselves request that appointment. In fact, the court has a mandatory duty to appoint a counsel de oficio when the accused have no counsel of choice at the time of their arraignment. Applying these principles, it would have been more prudent for respondent judge to have appointed a counsel de oficio for purposes of arraignment only. This course of action became more compelling in the instant case when petitioner himself requested the appointment. Clearly, respondent judges postponement of the arraignment , had no substantial basis.

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

Responsibility of Judges in Minimizing Delay. In his role as administrator, respondent should have supervised his clerk of court to ensure a timely service of the produce order on the wardens of the Manila City Jail. Judges must keep a watchful eye on the level of performance and conduct of the court personnel under their immediate supervision, who are primarily employed to aid in the administration of justice. Instead of being proactive and steering the course of the proceedings with deliberate dispatch, respondent tended to be passive and reactive by allowing the pace of the proceedings to be dictated by the listlessness of the parties, his staff, and the jail wardens. Judges should be more deliberate in their actions and, within the bounds of law, make full use of their authority to expedite proceedings while continuing to respect the rights of parties to ventilate their respective causes fully. UY vs. ADRIANO In 1995, the MTC issued a warrant of arrest against petitioners Uy for having been allegedly engaged in manufacturing, delivering, and selling "fake" Marca Pia soy sauce and were subsequently arraigned. However, it was only on February 1996 that the first witness of the prosecution testified. In the meantime this Court issued Administrative Order providing that the RTC shall have exclusive jurisdiction over unfair competition and intellectual property rights cases. Despite the administrative order of the Court, the MTC continued with the trial. In 2000, petitioners, through their new counsel, filed a Motion for Demurrer to Evidence, which a judgment of acquittal is proper since no sufficient evidence was presented to prove beyond reasonable doubt that they are guilty of the offense charged and that the RTC had jurisdiction over the crime charged; hence, the amended complaint should be quashed. The court denied the demurrer to evidence and ordered the records of the case forwarded to the Office of the Provincial Prosecutor for appropriate action. Petitioners filed a Motion to Quash the Information, alleging that there was already a delay of six (6) long years from the time the initial complaint was filed, and that they had already been prejudiced. Held: "Speedy trial" is a relative term and necessarily a flexible concept. In determining whether the right of the accused to a speedy trial was violated, the delay should be considered, in view of the entirety of the proceedings. Indeed, mere mathematical reckoning of the time involved would not suffice as the realities of everyday life must be regarded in judicial proceedings which, after all, do not exist in a vacuum. This Court, in Martin v. Ver, began adopting the "balancing test" to determine whether a defendant's right to a speedy trial has been violated. As this test necessarily compels the courts to approach speedy trial cases on an ad hoc basis, the conduct of both the prosecution and defendant are weighed apropos the four-fold factors, to wit: (1) length of the delay; (2) reason for the delay; (3) defendant's assertion or non-assertion of his right; and (4) prejudice to defendant resulting from the delay. None of these elements, however, is either a necessary or sufficient condition; they are related and must be considered together with other relevant circumstances. The length of delay is to some extent a "triggering mechanism." Until there is some delay, which is presumptively prejudicial, there is no necessity to inquire into the other three factors. The accused have the burden to prove the factual basis of the motion to quash the Information on the ground of denial of their right to a speedy trial. They must demonstrate that the delay in the proceedings is vexatious, capricious, and oppressive; or is caused by unjustified postponements that were asked for and secured; or that without cause or justifiable motive, a long period of time is allowed to elapse without the case being tried. On the other hand, the prosecution is required to present evidence establishing that the delay was reasonably attributed to the ordinary processes of justice, and that petitioners suffered no serious prejudice beyond that which ensued after an inevitable and ordinary delay. Even petitioners contributed to the delay of more than five months they or their former counsel were either absent or moved for postponements to attend another pending case or due to health concerns. The delay of about 21 months, covering 15 re-settings, can be attributed to the prosecution. However, except in five instances, when the trial was reset because the private prosecutor had to attend to some professional and personal matters, the delays were brought about because of the recent engagement of legal service, absence of the public prosecutor, and unavailability of documents and witnesses. The mistake of the City Prosecutor and the failure of the MTC to dismiss the case motu proprio should not prejudice the interest of the

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State to prosecute criminal offenses and, more importantly, defeat the right of the offended party to redress for its grievance. Significantly, petitioners do not attribute to the prosecution or to the MTC any malice aforethought or conscious disregard of their right to a speedy trial; nor have substantially proven the same by clear and convincing evidence. Hence, absent showing of bad faith or gross negligence, delay caused by the lapse of the prosecution is not in itself violative of the right to a speedy trial. Moreover, petitioners actively participated in the trial when the prosecution presented its evidence, as they scrutinized the documentary evidence and cross-examined the witnesses. Until the filing of the motion to quash in the RTC, they never contested the prosecutorial proceedings nor timely challenged the pendency of the case in the MTC. While it is true that lack of jurisdiction may be assailed at any stage of the proceedings, such defense must be seasonably raised at the earliest possible opportunity. Otherwise, active participation in the trial would estop a party from later challenging such want of jurisdiction. In the same vein, one's failure to timely question the delay in the trial of a case would be an implied acceptance of such delay and a waiver of the right to question the same. Except when otherwise expressly so provided, the speedy trial right, like any other right conferred by the Constitution or statute, may be waived when not positively asserted. A party's silence may amount to laches. The right to a speedy trial is a privilege of the accused. In the Barker case, the different interests of a defendant which may be affected by the violation of the right to a speedy trial were identified. It was held that prejudice should be assessed in the light of the interests of a defendant which the speedy trial right was designed to protect, namely: (1) to prevent oppressive pretrial incarceration; (2) to minimize anxiety and concern of the accused; and (3) to limit the possibility that the defense will be impaired. If witnesses die or disappear during a delay, the prejudice is obvious. Petitioners in this case were not subjected to pretrial incarceration, oppressive or otherwise, thus eliminating the first Barker consideration bearing on prejudice. In several cases where it is manifest that due process of law or other rights guaranteed by the Constitution or statutes has been denied, this Court has not faltered to accord the so-called "radical relief" to keep accused from enduring the rigors and expense of a full-blown trial. In this case, however, there appears no persuasive, much less compelling, ground to allow the same relief for absence of clear and convincing showing that the delay was unreasonable or arbitrary and was seasonably objected to by petitioners.

(B) PUBLIC TRIAL

GARCIA vs. DOMINGO The pivotal question in this petition for certiorari and prohibition, one which thus far has remained unresolved, is the meaning to be accorded the constitutional right to public trial. More specifically, did respondent Judge commit a grave abuse of discretion in stigmatizing as violative of such a guarantee the holding of the trial of the other respondents inside the chambers of city court Judge Gregorio Garcia named as the petitioner. That was done in the order now impugned in this suit, although such a procedure had been agreed to beforehand by the other respondents as defendants, the hearings have been thus conducted on fourteen separate occasions without objection on their part, and without an iota of evidence to substantiate any claim as to any other person so minded being excluded from the premises. It is thus evident that what took place in the chambers of the city court judge was devoid of haste or intentional secrecy. For reasons to be more fully explained in the light of the facts ascertained the unique aspect of this case having arisen from what turned out to be an unseemly altercation, force likewise being employed, due to the mode in which the arrest of private petitioner for a traffic violation was sought to be effected by the two respondent policemen thus resulting in charges and countercharges with eight criminal cases being tried jointly by city court Judge in the above manner. After proceedings duly had, there was an order from him "declaring that 'the constitutional and statutory rights of the accused' had been violated, adversely affecting their 'right to a free and impartial trial, 'that the trial of these cases lasting several weeks held exclusively in chambers and not in the court room open the public' 1. The 1935 Constitution which was in force at the time of the antecedents of this petition, as set forth at the outset, explicitly enumerated the right to a public trial to which an accused was

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entitled. Trial should also be public in order to offset any danger of conducting it in an illegal and unjust manner." 2. The crucial question of the meaning to be attached this provision remains. The Constitution guarantees an accused the right to a public trial. What does it signify? There is no ambiguity in the words employed. The trial must be public. It possesses that character when anyone interested in observing the manner a judge conducts the proceedings in his courtroom may do so. There is to be no ban on such attendance. His being a stranger to the litigants is of no moment. No relationship to the parties need be shown. The thought that lies behind this safeguard is the belief that thereby the accused is afforded further protection, that his trial is likely to be conducted with regularity and not tainted with any impropriety. There is the well recognized exception though that warrants the exclusion of the public where the evidence may be characterized as "offensive to decency or public morals." What did occasion difficulty in this suit was that for the convenience of the parties, and of the city court Judge, it was in the latter's airconditioned chambers that the trial was held. Did that suffice to investigate the proceedings as violative of this right? The answer must be in the negative. There is no showing that the public was thereby excluded. It is to be admitted that the size of the room allotted the Judge would reduce the number of those who could be our present. Such a fact though is not indicative of any transgression of this right. Courtrooms are not of uniform dimensions. Some are smaller than others. Then, too, reference may also be made to the undisputed fact at least fourteen hearings had been held in chambers of the city court Judge, without objection on the part of respondent policemen. "In one case, the trial of the accused was held in Bilibid prison. The accused, invoking his right to a public trial, assigned the procedure thus taken as error. The Supreme Court held that as it affirmatively appears on the record that the accused offered no objection to the trial of his case in the place where it was held, his right is deemed waived."

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The answer must be in the affirmative. Petitioners are thus entitled to the relief sought. Respondent Judge could not be totally immune to what apparently was asserted before him in such extrajudicial statement. Moreover, it is unlikely that he was not in the slightest bit offended by the affiant's turnabout with his later declaration that there was intimidation by a government agent exerted on him. The absence of the requisite due process element is thus noticeable. It cannot be doubted then that respondent Judge in effect ruled that such extra-judicial statement was executed freely. With its repudiation on the ground that it was not so at all, coercion having come into the picture there is apparent the situation of a judge having to pass on a question that by implication had already been answered by him. Such a fact became rather obvious. For respondent Judge was called upon to review a matter on which he had previously given his opinion. It is this inroad in one's objectivity that is sought to be avoided by the law on disqualification. The misgivings then as to the requirement of due process for "the cold neutrality of an impartial judge" not being met are more titan justified. Hence the conclusion reached by us. (Ryan Santiago) Webb v. de Leon [GR 121234, 23 August 1995 Facts: This was a highly-publicized case (dubbed as Vizconde Massacre, and involves a son of a Philippine Senator). On 19 June 1994, the National Bureau of Investigation (NBI) filed with the Department of Justice (DOJ) a letter-complaint charging petitioners Hubert Webb, Michael Gatchalian. Antonio J. Lejano and 6 other persons, with the crime of Rape with Homicide. Forthwith, the DOJ formed a panel of prosecutors headed by Assistant Chief State prosecutor Jovencito R. Zuo to conduct the preliminary investigation of those charged with the rape and killing on 30 June 1991 of Carmela N. Vizconde, her mother Estrellita NicolasVizoonde, and sister Anne Marie Jennifer in their home at Paraaque. During the preliminary investigation, the NBI presented the sworn statements of Maria Jessica Alfaro, 2 former housemaids of the Webb family, Carlos Cristobal (a plane passenger), Lolita Birrer (live-in partner of Biong), 2 of Vizcondes maids, Normal White (a security guard) and Manciano Gatmaitan (an engineer). The NBI also submitted the autopsy report involving Estrellita (12 stab wounds), Carmela (9 stab wounds), and Jennifer (19 stab wounds); and the genital examination of Carmela confirming the presence of spermatozoa. The NBI submitted photocopies of the documents requested by Webb in his Motion for Production and Examination of Evidence and Documents, granted by the DOJ Panel. Webb claimed during the preliminary investigation that he did not commit the crime as he went to the United States on 1 March 1991 and returned to the Philippines on 27 October 1992. The others Fernandez, Gatchalian, Lejano, Estrada, Rodriguez and Biong submitted sworn statements, responses, and a motion to dismiss denying their complicity in the rape-killing of the Vizcondes. Only Filart and Ventura failed to file their counter-affidavits though they were served with subpoena in their last known address. On 8 August 1995, the DOJ Panel issued a 26-page Resolution finding probable cause to hold respondents for trial and recommending that an Information for rape with homicide be filed against Webb, et. al. On the same date, it filed the corresponding Information against Webb, et. al. with the RTC Paraaque. Docketed as Criminal Case 95-404 and raffled to Branch 258 presided by Judge Zosimo V. Escano. It was, however, Judge Raul de Leon, pairing judge of Judge Escano, who issued the warrants of arrest against Webb, et. al. On 11 August 1995, Judge Escano voluntarily inhibited himself from the case to avoid any suspicion about his impartiality considering his employment with the NBI before his appointment to the bench. The case was re-raffled to branch 274, presided by Judge Amelita Tolentino who issued new warrants of arrest against Webb, et. al. On 11 August 1995, Webb voluntarily surrendered to the police authorities at Camp Ricardo Papa Sr., in Taguig. Webb, et. al. filed petitions for the issuance of the extraordinary writs of certiorari, prohibition and mandamus with application for temporary restraining order and preliminary injunction with the Supreme Court to: (1) annul and set aside the Warrants of Arrest issued against petitioners by respondent Judges Raul E. de Leon and Amelita Tolentino in Criminal Case No. 95-404; (2) enjoin the respondents from conducting any proceeding in the aforementioned criminal case; and (3) dismiss said criminal case or include Jessica Alfaro as one of the accused therein. Gatchalian and Lejano likewise gave themselves up to the authorities after filing their petitions before the Court. Issue: Whether the attendant publicity of the case deprived Webb, et.al, of their right to fair trial. Held: Pervasive and prejudicial publicity under certain circumstances can deprive an accused of his due process right to fair trial. Herein, however, nothing in the records that will prove that the tone and content of the publicity that attended the investigation of petitioners

(C) IMPARTIAL TRIAL

MATEO vs. VILLALUZ The novel issue presented in this prohibition proceeding arose from the gnawing fear that the prized ideal of "the cold neutrality of an impartial judge" implicit in the due process guarantee may be set at naught. Petitioners are among those being tried by respondent Judge for the offense of robbery in band with homicide. Thereafter, an extrajudicial statement by one Rolando Reyes, who was later on likewise indicted for the same offense, implicating petitioners, was subscribed before respondent Judge. That was the background of a motion for his disqualification, as the aforesaid Rolando Reyes, when called upon to testify as an additional witness for the prosecution impugned his written declaration stating that it was executed as a result of a threat by a government agent. It is now contended that such a repudiation would not sit well with respondent Judge, who had thus placed himself in a position of being unable to pass on such question with that degree of objectivity required by due process, although admittedly, such a move did not fall squarely within one of the specific grounds to inhibit judges. Respondent Judge turned down this plea for disqualification. Hence, this petition, based on the asserted violation of a constitutional right not to be convicted of an offense without due process of law. "A judge may, in the exercise of sound discretion, disqualify himself from sitting in a case, for just or valid reasons other than those mentioned by law." Thereby, it is made clear to the occupants of the bench that outside of pecuniary interest, relationship or previous participation in the matter that calls for adjudication, there may be other causes that could conceivably erode the trait of objectivity, thus calling for inhibition. It is well, therefore, that if any such should make its appearance and prove difficult to resist, the better course for a judge is to disqualify himself. That way, he avoids being misunderstood. His reputation for probity and objectivity is preserved. A judge may not be legally prohibited from sitting in a litigation. But when suggestion is made of record that he might be induced to act in favor of one party or with bias or prejudice against a litigant arising out of circumstance reasonably capable of inciting such a state of mind, he should conduct a careful self-examination. He should exercise his discretion in a way that: the people's faith in the courts of justice is not impaired. The specific issue then that must be resolved is whether the circumstance of a party having subscribed before respondent Judge an extra-judicial statement purporting to describe the manner in which an offense was committed, later on repudiated by him as the product of intimidation in the course of his having been asked to testify against petitioners, would suffice to negate that degree of objectivity the Constitution requires?

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

fatally infected the fairness and impartiality of the DOJ Panel. The DOJ Panel is composed of an Assistant Chief State Prosecutor and Senior State Prosecutors; and their long experience in criminal investigation is a factor to consider in determining whether they can easily be blinded by the klieg lights of publicity. At no instance in the case did Webb, et. al. seek the disqualification of any member of the DOJ Panel on the ground of bias resulting from their bombardment of prejudicial publicity. Further , on the contention of the denial of their constitutional right to due process and violation of their right to an impartial investigation, records show that the DOJ Panel did not conduct the preliminary investigation with indecent haste. Webb, et. al. were given fair opportunity to prove lack of probable cause against them. Still, the Supreme Court reminds a trial judge in high profile criminal cases of his/her duty to control publicity prejudicial to the fair administration of justice. The ability to dispense impartial justice is an issue in every trial and in every criminal prosecution, the judiciary always stands as a silent accused. More than convicting the guilty and acquitting the innocent, the business of the judiciary is to assure fulfillment of the promise that justice shall be done and is done, and that is the only way for the judiciary to get an acquittal from the bar of public opinion. Tabuena v. Sandiganbayan [GR 103501-03, 17 February 1997 Facts: Then President Marcos instructed Luis Tabuena over the phone to pay directly to the presidents office and in cash what the Manila International Airport Authority (MIAA) owes the Philippine National Construction Corporation (PNCC), pursuant to the 7 January 1985 memorandum of then Minister Trade and Industry Roberto Ongpin. Tabuena agreed. About a week later, Tabuena received from Mrs. Fe Roa-Gimenez, then private secretary of Marcos, a Presidential Memorandum dated 8 January 1986 reiterating in black and white such verbal instruction. In obedience to President Marcos verbal instruction and memorandum, Tabuena, with the help of Gerardo G. Dabao and Adolfo Peralta, caused the release of P55 Million of MIAA funds by means of three (3) withdrawals. On 10 January 1986, the first withdrawal was made for P25 Million, following a letter of even date signed by Tabuena and Dabao requesting the PNB extension office at the MIAA the depository branch of MIAA funds, to issue a managers check for said amount payable to Tabuena. The check was encashed, however, at the PNB Villamor Branch. Dabao and the cashier of the PNB Villamor branch counted the money after which, Tabuena took delivery thereof. The P25 Million in cash was delivered on the same day to the office of Mrs. Gimenez. Mrs. Gimenez did not issue any receipt for the money received. Similar circumstances surrounded the second withdrawal/encashment and delivery of another P25 Million, made on 16 January 1986. The third and last withdrawal was made on 31 January 1986 for P5 Million. Peralta was Tabuenas co-signatory to the letter- request for a managers check for this amount. Peralta accompanied Tabuena to the PNB Villamor branch as Tabuena requested him to do the counting of the P5 Million. After the counting, the money was loaded in the trunk of Tabuenas car. Peralta did not go with Tabuena to deliver the money to Mrs. Gimenez office. It was only upon delivery of the P5 Million that Mrs. Gimenez issued a receipt for all the amounts she received from Tabuena. The receipt was dated January 30, 1986. Tabuena and Peralta were charged for malversation of funds, while Dabao remained at large. One of the justices of the Sandiganbayan actively took part in the questioning of a defense witness and of the accused themselves; the volume of the questions asked were more the combined questions of the counsels. On 12 October 1990, they were found guilty beyond reasonable doubt. Tabuena and Peralta filed separate petitions for review, appealing the Sandiganbayan decision dated 12 October 19990 and the Resolution of 20 December 1991. Issue: Whether Tabuena and Peralta were denied due process by the active participation of a Sandiganbayan justice in the questioning witnesses in the trial. Held: Due process requires no less than the cold neutrality of an impartial judge. Bolstering this requirement, we have added that the judge must not only be impartial but must also appear to be impartial, to give added assurance to the parties that his decision will be just. The parties are entitled to no less than this, as a minimum guaranty of due process. Our courts should refrain from showing any semblance of one-sided or more or less partial attitude in order not to create any false impression in the minds of the litigants. For obvious reasons, it is the bounden duty of all to strive for the preservation of the peoples faith in our courts. Respect for the Constitution is more important than securing a conviction based on a violation of the rights of the accused. The Court was struck by the way the Sandiganbayan actively took part in the questioning of a defense witness and of the accused themselves, as shown in the records. The volume of questions hurled by the Sandiganbayan was more the combined questions of the counsels. More importantly, the questions of the court were in the nature of cross examinations characteristic of confrontation, probing and insinuation. We have not adopted in this country the practice of making the presiding judge the chief inquisitor. It is better to observe

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our time-honored custom of orderly judicial procedure, even at the expense of occasional delays. The impartiality of the judge; his avoidance of the appearance of becoming the advocate of either one side or the other of the pending controversy is a fundamental and essential rule of special importance in criminal cases. [G.R. No. 131116. August, 27, 1999] PEOPLE Vs Sanchez What is before this Court is an appeal from the decision of Regional Trial Court, Branch 160, Pasig City, finding accused Antonio L. Sanchez, Luis Corcolon y Fadialan, Landrito Ding Peradillas and Artemio Averion guilty beyond reasonable doubt of murder committed against Nelson Pealosa and Rickson Pealosa, and sentencing each of the accused, as follows: WHEREFORE, foregoing considered, the Court finds the accused Antonio Sanchez, Landrito Ding Peradillas, Luis Corcolon, and Artemio Averion GUILTY beyond reasonable doubt of the crime of MURDER punishable under ART. 48 of the Revised Penal Code and hereby sentences each of said accused to suffer the penalty of reclusion perpetua and to pay jointly and severally, the heirs of the victims each the sum of P100,000.00 for the death of Nelson Pealosa and Rickson Pealosa, P50,000.00 as actual damages and moral damages of P 50,000.00 and exemplary damages of P30,000.00 and to pay the costs. Upon arraignment on April 10, 1995, all the accused pleaded not guilty. The trial of the case thereby ensued. On December 27, 1996, the trial court convicted all the accused of the complex crime of double murder, as charged, the dispositive portion of which is set out in the opening paragraph of this opinion. On February 27, 1997, all the accused, except Ding Peradillas, were present for the promulgation of the decision. Peradillas was a member of the Philippine National Police and was under the custody of his superiors. The trial court ordered his custodian to explain accuseds non-appearance. On March 14, 1997, P/C Supt. Roberto L. Calinisan, Chief, PNP-PACC Task Force Habagat, denied any knowledge of the murder case against Peradillas. Hence, Peradillas was not suspended from the service pending trial. However, at the time that Peradillas was to be presented to the court for the promulgation of the decision, he had disappeared and could not be located by his custodian. The promulgation of the decision as to him was in absentia. Peradillas and Corcolon did not appeal from the decision. Accused Antonio L. Sanchez and Artemio Averion filed their respective appeals to this Court. The facts are as follows: On September 15, 1993, Janet P. Cortez, PNP ballistician, completed the ballistic tests conducted on the twelve (12) empty shells found at the crime scene and the M-16 baby armalite surrendered by Corcolon. She concluded that the 12 empty shells were fired using three (3) different firearms, one of which was the M16 baby armalite. The accused interposed the defense of alibi and denial. The trial court ruled that the accused conspired in committing the crime. Treachery was present, thereby qualifying the crime to murder. It appreciated the aggravating circumstances of evident premeditation, nighttime and use of motor vehicle. The trial court considered the crime as a complex crime of double murder punishable under Article 48 of the Revised Penal Code. However, at the time of the commission of the offense on April 13, 1991, there was a constitutional proscription on the imposition of the death penalty. Thus, each of the accused was sentenced to reclusion perpetua, and to pay damages to the heirs of the victims, as earlier quoted. Accused mayor Antonio L. Sanchez and Artemio Averion jointly appealed from the decision to the Supreme Court. This Court has held time and again that any minor lapses in the testimony of a witness tend to buttress, rather than weaken, his or her credibility, since they show that he or she was neither coached nor were his or her answers contrived. Witnesses are not expected to remember every single detail of an incident with perfect or total recall. Furthermore, the fact that the trial court relied on the testimony of a single witness does not affect the verdict of conviction. Criminals are convicted, not on the number of witnesses against them, but on the credibility of the testimony of even one witness, who is able to convince the court of the guilt of the accused beyond a shadow of doubt. What witness can be more credible than someone who was in the planning, preparation and execution of the crime.

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

The inconsistency between the affidavit and testimony of Malabanan is too minor to affect his credibility. At any rate, we have held that affidavits are generally subordinate in importance to open court declarations. Affidavits are not complete reproductions of what the declarant has in mind because they are generally prepared by the administering officer and the affiant simply signs them after the same have been read to him. The question is whether the act of shooting the victims using armalites in automatic firing mode constitutes a single act and, thus, the felonies resulting therefrom are considered as complex crimes. We rule in the negative. It is not the act of pressing the trigger which should be considered as producing the several felonies, but the number of bullets which actually produced them. This Court MODIFIES the decision of the Regional Trial Court, Branch 160, Pasig City, and finds accused-appellants Antonio L. Sanchez and Artemio Averion guilty beyond reasonable doubt of two (2) counts of murder, and sentences each of them to suffer two (2) penalties of reclusion perpetua, and each to pay jointly and severally the respective heirs of victims Nelson and Rickson Pealosa. A.M. No. 01-4-03-S.C. June 29, 2001 RE: REQUEST RADIO-TV COVERAGE OF THE TRIAL OF IN THE SANDIGANBAYAN OF THE PLUNDER CASES AGAINST THE FORMER PRESIDENT JOSEPH E. ESTRADA. The travails of a deposed President continue. The Sandiganbayan reels to start hearing the criminal charges against Mr. Joseph E. Estrada. Media seeks to cover the event via live television and live radio broadcast and endeavors this Court to allow it that kind of access to the proceedings. On 13 March 2001, the Kapisanan ng mga BroadKaster ng Pilipinas (KBP), an association representing duly franchised and authorized television and radio networks throughout the country, sent a letter requesting this Court to allow live media coverage of the anticipated trial of the plunder and other criminal cases filed against former President Joseph E. Estrada before the Sandiganbayan in order "to assure the public of full transparency in the proceedings of an unprecedented case in our history." On 17 April 2001, the Honorable Secretary of Justice Hernando Perez formally filed the instant petition,3 submitting the following exegesis: The foregoing criminal cases involve the previous acts of the former highest official of the land, members of his family, his cohorts and, therefore, it cannot be over emphasized that the prosecution thereof, definitely involves a matter of public concern and interest, or a matter over which the entire citizenry has the right to know, be informed and made aware of. Public interest, the petition further averred, should be evident bearing in mind the right of the public to vital information affecting the nation. In effect, the petition seeks a re-examination of the 23rd October 1991 resolution of this Court in a case for libel filed by then President Corazon C. Aquino. The resolution read: A trial of any kind or in any court is a matter of serious importance to all concerned and should not be treated as a means of entertainment. To so treat it deprives the court of the dignity which pertains to it and departs from the orderly and serious quest for truth for which our judicial proceedings are formulated. "Courts do not discriminate against radio and television media by forbidding the broadcasting or televising of a trial while permitting the newspaper reporter access to the courtroom, since a television or news reporter has the same privilege, as the news reporter is not permitted to bring his typewriter or printing press into the courtroom. "In Estes vs. Texas. the United States Supreme Court held that television coverage of judicial proceedings involves an inherent denial of the due process rights of a criminal defendant "Experience likewise has established the prejudicial effect of telecasting on witnesses. Witnesses might be frightened, play to the camera, or become nervous. They are subject to extraordinary out-of court influences which might affect their testimony. Also, telecasting not only increases the trial judge's responsibility to avoid actual prejudice to the defendant, it may as well affect his own performance. Judges are human beings also and are subject to the same psychological reactions as laymen. For the defendant, telecasting is a form of mental harassment and subjects him to excessive public exposure and distracts him from the effective presentation of his defense.

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'The television camera is a powerful weapon which intentionally or inadvertently can destroy an accused and his case in the eyes of the public.' ""Considering the prejudice it poses to the defendant's right to due process as well as to the fair and orderly administration of justice, and considering further that the freedom of the press and the right of the people to information may be served and satisfied by less distracting, degrading and prejudicial means, live radio and television coverage of court proceedings shall not be allowed. The propriety of granting or denying the instant petition involve the weighing out of the constitutional guarantees of freedom of the press and the right to public information, on the one hand, and the fundamental rights of the accused, on the other hand, along with the constitutional power of a court to control its proceedings in ensuring a fair and impartial trial. When these rights race against one another, jurisprudence tells us that the right of the accused must be preferred to win. An accused has a right to a public trial but it is a right that belongs to him, more than anyone else, where his life or liberty can be held critically in balance. A public trial aims to ensure that he is fairly dealt with and would not be unjustly condemned and that his rights are not compromised in secrete conclaves of long ago. A public trial is not synonymous with publicized trial; it only implies that the court doors must be open to those who wish to come, sit in the available seats, conduct themselves with decorum and observe the trial process. The Integrated Bar of the Philippines, in its Resolution of 16 Apri1 2001, expressed its own concern on the live television and radio coverage of the criminal trials of Mr. Estrada; to paraphrase: Live television and radio coverage can negate the rule on exclusion of witnesses during the hearings intended to assure a fair trial; at stake in the criminal trial is not only the life and liberty of the accused but the very credibility of the Philippine criminal justice system, and live television and radio coverage of the trial could allow the "hooting throng" to arrogate unto themselves the task of judging the guilt of the accused, such that the verdict of the court will be acceptable only if popular; and live television and radio coverage of the trial will not subserve the ends of justice but will only pander to the desire for publicity of a few grandstanding lawyers. The Court is not all that umnindful of recent technological and scientific advances but to chance forthwith the life or liberty of any person in a hasty bid to use and apply them, even before ample safety nets are provided and the concerns heretofore expressed are aptly addressed, is a price too high to pay. WHEREFORE, the petition is DENIED. [A.M. No. 01-4-03-SC. September 13, 2001] RE: REQUEST FOR LIVE RADIO-TV COVERAGE OF THE TRIAL IN THE SANDIGANBAYAN OF THE PLUNDER CASES AGAINST FORMER PRESIDENT JOSEPH E. ESTRADA This is a motion for reconsideration of the decision denying petitioners request for permission to televise and broadcast live the trial of former President Estrada before the Sandiganbayan. The motion was filed by the Secretary of Justice, as one of the petitioners, who argues that there is really no conflict between the right of the people to public information and the freedom of the press, on the one hand, and, on the other, the right of the accused to a fair trial; that if there is a clash between these rights, it must be resolved in favor of the right of the people and the press because the people, as the repository of sovereignty, are entitled to information; and that live media coverage is a safeguard against attempts by any party to use the courts as instruments for the pursuit of selfish interests. On the other hand, former President Joseph E. Estrada reiterates his objection to the live TV and radio coverage of his trial on the ground that its allowance will violate the sub judice rule and that, based on his experience with the impeachment trial, live media coverage will only pave the way for so-called "expert commentary" which can trigger massive demonstrations aimed at pressuring the Sandiganbayan to render a decision one way or the other. Mr. Estrada contends that the right of the people to information may be served through other means less distracting, degrading, and prejudicial than live TV and radio coverage. The Court has considered the arguments of the parties on this important issue and, after due deliberation, finds no reason to alter or in any way modify its decision prohibiting live or real time broadcast by radio or television of the trial of the former president. By a vote of

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nine (9) to six (6) of its members, the Court denies the motion for reconsideration of the Secretary of Justice. In lieu of live TV and radio coverage of the trial, the Court, by the vote of eight (8) Justices, has resolved to order the audio-visual recording of the trial for documentary purposes. Seven (7) Justices vote against the audio-visual recording of the trial. What follows is the opinion of the majority. Considering the significance of the trial before the Sandiganbayan of former President Estrada and the importance of preserving the records thereof, the Court believes that there should be an audio-visual recording of the proceedings. The recordings will not be for live or real time broadcast but for documentary purposes. Only later will they be available for public showing, after the Sandiganbayan shall have promulgated its decision in every case to which the recording pertains. The master film shall be deposited in the National Museum and the Records Management and Archives Office for historical preservation and exhibition pursuant to law. For the purpose of recording the proceedings, cameras will be inconspicuously installed in the courtroom and the movement of TV crews will be regulated, consistent with the dignity and solemnity of the proceedings. The trial shall be recorded in its entirety, except such portions thereof as the Sandiganbayan may decide should not be held public pursuant to Rule 119, 21 of the Revised Rules of Criminal Procedure. No comment shall be included in the documentary except annotations which may be necessary to explain certain scenes which are depicted. The audio-visual recordings shall be made under the supervision and control of the Sandiganbayan or its Division as the case may be. There are several reasons for such televised recording. First, the hearings are of historic significance. They are an affirmation of our commitment to the rule that "the King is under no man, but he is under God and the law." (Quod Rex non debet esse sub homine, sed sub Deo et Lege.) Second, the Estrada cases involve matters of vital concern to our people who have a fundamental right to know how their government is conducted. This right can be enhanced by audio-visual presentation. Third, audio-visual presentation is essential for the education and civic training of the people. Above all, there is the need to keep audio-visual records of the hearings for documentary purposes. The recordings will be useful in preserving the essence of the proceedings in a way that the cold print cannot quite do because it cannot capture the sights and sounds of events. They will be primarily for the use of appellate courts in the event a review of the proceedings, rulings, or decisions of the Sandiganbayan is sought or becomes necessary. The accuracy of the transcripts of stenographic notes taken during the trial can be checked by reference to the tapes. On the other hand, by delaying the release of the tapes for broadcast, concerns that those taking part in the proceedings will be playing to the cameras and will thus be distracted from the proper performance of their roles whether as counsel, witnesses, court personnel, or judges will be allayed. The possibility that parallel trials before the bar of justice and the bar of public opinion may jeopardize, or even prevent, the just determination of the cases can be minimized. The possibility that judgment will be rendered by the popular tribunal before the court of justice can render its own will be avoided. At the same time, concerns about the regularity and fairness of the trial - which, it may be assumed, is the concern of those opposed to, as much as of those in favor of, televised trials - will be addressed since the tapes will not be released for public showing until after the decision of the cases by the Sandiganbayan. By delaying the release of the tapes, much of the problem posed by real time TV and radio broadcast will be avoided. Thus, many important purposes for preserving the record of the trials can be served by audio-visual recordings without impairing the right of the accused to a fair trial. Nor is the right of privacy of the accused a bar to the production of such documentary. In Ayer Productions Pty. Ltd. v. Capulong, this Court set aside a lower court's injunction restraining the filming of "Four Day Revolution," a documentary film depicting, among other things, the role of then Minister of National Defense Juan Ponce Enrile in the 1986 EDSA people power. This Court held: "A limited intrusion into a person's privacy has long been regarded as permissible where that person is a public figure and the information sought to be elicited from him or to be published about him constitute matters of a public character."

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No one can prevent the making of a movie based on the trial. But, at least, if a documentary record is made of the proceedings, any movie that may later be produced can be checked for its accuracy against such documentary and any attempt to distort the truth can thus be averted. Indeed, a somewhat similar proposal for documentary recording of celebrated cases or causes clbres was made way back in 1971 by Paul Freund of the Harvard Law School. As he explained: In fairness let me refer to an American experience many of my lay friends found similarly moving. An educational television network filmed a trial in Denver of a Black Panther leader on charges of resisting arrest, and broadcast the document in full, in four installments, several months after the case was concluded concluded incidentally, with a verdict of acquittal. No one could witness the trial without a feeling of profound respect for the painstaking way in which the truth was searched for, for the ways whereby law copes with uncertainties and ambiguities through presumptions and burden of proof, and the sense of gravity with which judge and jury carried out their responsibilities. I agree in general with the exclusion of television from the courtroom, for the familiar good reasons. And yet the use of television at a trial for documentary purposes, not for the broadcast of live news, and with the safeguards of completeness and consent, is an educational experiment that I would be prepared to welcome. Properly safeguarded and with suitable commentary, the depiction of an actual trial is an agency of enlightenment that could have few equals in its impact on the public understanding. Understanding of our legal process, so rarely provided by our educational system, is now a desperate need. Professor Freund's observation is as valid today as when it was made thirty years ago. It is perceptive for its recognition of the serious risks posed to the fair administration of justice by live TV and radio broadcasts, especially when emotions are running high on the issues stirred by a case, while at the same time acknowledging the necessity of keeping audio-visual recordings of the proceedings of celebrated cases, for public information and exhibition, after passions have subsided.

(D) RIGHT TO AN IMPARTIAL TRIBUNAL AND TRIAL OF CIVILIANS BY MILITARY COURTS

G.R. No. L-51747 December 29, 1986 Animas VS MInister This petition challenges the jurisdiction of a military tribunal to try twelve accused persons, only one of whom is in the military, for the offense devoid of any national security or political complexion and committed long before the proclamation of martial law, Diosdado Yanson was a political leader of Ernesto Montilla, candidate for Mayor of Pulupandan, Negros Occidental in the November 11, 1971 local elections. The petitioners were charged with murder in connection with the alleged killing of Yanson on the of the November 11 elections. The accused were arrested almost a year later, on September 21, 1972 after martial law was proclaimed. It was only in 1974 that a "summary preliminary investigation" was conducted by a PC captain belonging to the Judge Advocate General Service. The petitioners were recommended for prosecution before the Military Tribunal, considering that one of them, petitioner Sgt. Rodolfo Animas is a military personnel. Before trial could proceed, the respondent Minister of National Defense ordered on June 30, 1979, the transfer of the case to the civil courts. Before the order could be implemented, it was superseded by the respondent Minister's 1st Indorsement dated August 22, 1979, directing immediate implementation of the handwritten marginal instructions dated August 14, 1979 of the President enfaced on the letter of Nelly Yanson, the wife of the deceasedvictim, dated July 23, 1979 which reads: In order to calm the fears of injustice by the aggrieved party, I order the Military Commission to retain jurisdiction of the case and not to transfer it to the civil court. This retention prompted the filing of the instant petition. The petitioners allege that respondent Military Commission No. 27 has no jurisdiction over the instant case. They ask that we declare as null

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

and void the lst Indorsement dated August 22, 1979 of respondent Minister of National Defense and the corresponding order of arrest dated June 8, 1978 of respondent military commission for having been issued without or in excess of jurisdiction. Thus, Proclamation No. 2045 while revoking General Order No. 8 and dissolving the military tribunals earlier established under the Order, created a lacunae or penumbral area insofar as pending military tribunal cases were concerned. The policy announced in the Proclamation was to transfer cases pending with the military tribunals to civilian courts except those which may not be transferred because of "irreparable prejudice" to the state in view of the rules on double jeopardy or other circumstances which would render further prosecution of cases difficult if not impossible. While dissolving military tribunals, the Proclamation also mandated that their dissolution would be effective only when they finally decide pending cases which should not be transferred to civil courts. The gray area as to which cases should be transferred and which should not was further compounded by the problem of what to do in cases where both civilians and military personnel were involved in the same offense. P.D. No. 1850 enacted on October 4, 1982 made criminal trials more complicated when it provided: SEC. 2. Segregation of Criminal Cases of Armed Forces and Integrated National Police from Civilian Co-Accused.-In cases where there are two or more accused one or some of whom is or are civilian(s), the case against the latter shall be segregated from accused Armed Forces or Integrated National Police member, and filed with the appropriate civil court for trial in accordance with existing laws; Provided, however, that should such civilian accused waive in writing civil court jurisdiction and submit himself to court-martial jurisdiction, then the whole case involving members of the Armed Forces or the Integrated National Police as well as the civilian(s) shall be referred for trial to a court-martial. When civilian and military accused are segregated and tried for the same offense in two separate tribunals, the witnesses would be presented twice and would testify two times on exactly the same incident, with all the concomitant mischief such a procedure entails. This is not to mention the ever present possibility of the military tribunal and the civil court coming up with diametrically opposing decisions on the same facts and issues. The P. D. also mandates that any waiver is for the civilian to submit himself to the military tribunal and not for the armed forces member to opt for a civilian trial. In other words, it is the military accused who joins the civilian trial and not the other way around. The situation calling for a civilian trial, especially for Sgt. Rodolfo Animas, is much clearer in the present petition. The petitioners were investigated for "Murder." The crime was committed on November 10, 1971 long before there was any intimation that cases with absolutely no national security implications nor political complexion and, whoever the accused may be, would be taken away from the civil courts where they properly belong. When the charge sheet was prepared, the offense charged was no longer murder but "Violation of Sec. 878 of the Revised Administrative Code in Relation to Sec. 2692 of the same Code and P.D. No. 9 (Illegal Possession of Firearm With Murder)." The change in the offense charged was obviously to bring it within the jurisdiction of a military court. The crime for which the petitioners were charged was committed on November 10, 1971 long before the proclamation of martial law. There was no question about the case being prosecuted by civilian fiscals and tried by civil courts at the time. Now that it is already late 1986, and martial law is a thing of the past, hopefully never more to return, there is no more reason why a murder committed in 1971 should still be retained, at this time, by a military tribunal. The jurisdiction given to military tribunals over common crimes and civilian accused at a time when all civil courts were fully operational and freely functioning constitutes one of the saddest chapters in the history of the Philippine judiciary. The downgrading of judicial prestige caused by the glorification of military tribunals, the instability and insecurity felt by many members of the judiciary due to various causes both real and imagined, and the many judicial problems spawned by extended authoritarian rule which effectively eroded judicial independence and self-respect will require plenty of time and determined efforts to cure. (Vanesa Suringa)

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The immediate return to civil courts of all cases which properly belong to them is only a beginning. WHEREFORE, the PETITION is hereby GRANTED OLAGUER vs. MC NO. 34 150 SCRA 144 (1987) (Giby Sato) CRUZ vs. PONCE ENRILE 160 SCRA 702 (1988)

7. 8. 9.

RIGHT TO CONFRONT WITNESSES RIGHT TO SECURE ATTENDANCE WITNESSES TRIAL IN ABSENTIA

GIMENEZ vs. NAZARENO 160 SCRA 1 (1988) PARADA vs. VENERACION 269 SCRA 371 (1997) BERNARDO vs. PEOPLE GR NO. 166980 ( April 4, 2007)

OF

10. WHEN PRESENCE OF THE ACCUSED IS A DUTY a. ARRAIGNMENT AND PLEA b. DURING TRIAL FOR IDENTIFICATION
PEOPLE vs. SALAS 143 SCRA 163 (1986) 11. PROMULGATION OF SENTENCE

IX. PRIVILEGE AGAINST SELF-INCRIMINATION 1. SCOPE

UNITED STATES vs. TAN TEH 23 PHIL 145 (1912) VILLAFLOR vs. SUMMERS 41 PHIL 62 (1920) PEOPLE vs. RONDERO 320 SCRA 383 (1999)

PEOPLE vs. GALLARDE 325 SCRA 835 (2001) Facts Accused was a suspect in a rape with homicide case. After his arrest, he was asked by a Kagawad to pull down his shorts at the police headquarters and he complied. Photographs of him were also taken after the incident and presented during trial. Issue Are the pictures admissible in evidence? Ruling Yes. The constitutional right of an accused against self-incrimination proscribes the use of physical or moral compulsion to extort communications and not the inclusion of his body in evidence when it may be material. Purely mechanical acts are not included in the prohibition as the accused does not thereby speak of his guilt, hence the assistance and guiding hand of counsel is not required. The essence of the right against self-incrimination is testimonial compulsion, that is the giving of evidence against himself through a testimonial act. Hence, the taking of pictures of an accused even without the assistance of counsel, being a purely mechanical act, is not a violation of his constitutional right against self-incrimination. PEOPLE vs. YATAR 428 SCRA 504 (2007)

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

Facts Yatar was sentenced to death for the special complex crime of Rape with Homicide. Subsequent testing showed that the Deoxyribonucleic Acid (DNA) of the sperm specimen from the vagina of the victim was identical the semen to be that of appellants gene type. Issue Whether the blood sample taken from appellant as well as the DNA tests were conducted in violation of his right to remain silent as well as his right against self-incrimination under Secs. 12 and 17 of Art. III of the Constitution? Ruling This contention is untenable. The kernel of the right is not against all compulsion, but against testimonial compulsion. The right against selfincrimination is simply against the legal process of extracting from the lips of the accused an admission of guilt. It does not apply where the evidence sought to be excluded is not an incrimination but as part of object evidence. A person may be compelled to submit to fingerprinting, photographing, paraffin, blood and DNA, as there is no testimonial compulsion involved. It must also be noted that appellant in this case submitted himself for blood sampling which was conducted in open court on March 30, 2000, in the presence of counsel.

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Facts: To determine the facts and circumstances surrounding the killing of Former Senator Benigno Aquino and to allow a free, unlimited and exhaustive investigation of all aspects of the tragedy, PD 1886 was promulgated creating an ad hoc Fact Finding Board which later became more popularly known as the Agrava Board. Among the witnesses who appeared, testified and produced evidence before the Board were the herein private respondents General Ver, Maj. Gen. Olivas, etc. They were summoned and gave their testimonies before the Agrava Board. This notwithstanding, Sec. 5 of PD 1886 denied them the right to remain silent. They were compelled to testify or be witnesses against themselves. They have to take the witness stand, testify or produce evidence, under pain of contempt if they failed or refused to do so. Ruling: Such threat of punishment for making a claim of the privilege leaves the witness no choice but to answer and thereby forfeit the immunity purportedly granted by Sec. 5. The strong testimonial compulsion imposed by Section 5 of P.D. 1886 viewed in the light of the sanctions provided in Section 4, infringes upon the witness' right against self-incrimination. As a rule, such infringement of the constitutional right renders inoperative the testimonial compulsion, meaning, the witness cannot be compelled to answer UNLESS a coextensive protection in the form of IMMUNITY is offered. Hence, under the oppressive compulsion of PD 1886, immunity must in fact be offered to the witness before he can be required to answer, so as to safeguard his sacred constitutional right. But in this case, the compulsion has already produced its desired results - the private respondents had all testified without offer of immunity. Their constitutional rights are therefore, in jeopardy. Facts; This was a sensational case of killing Sen. Benigno Aquino. To determine the facts and circumstances surrounding the killing and to allow a free, unlimited and exhaustive investigation of all aspects of the tragedy,' P.D. 1886 was promulgated creating an ad hoc Fact Finding Board which later became more popularly known as the. Agrava Board ' Pursuant to the powers vested in it by P.D. 1886. The Board conducted public hearings wherein various witnesses appeared and testified and/or produced documentary and other evidence either in obedience to a subpoena or in response to an invitation issued by the Board. Among the witnesses who appeared, testified and produced evidence before the Board were the herein private respondents General Fabian C. Ver, Major General Prospero Olivas, Sgt. Pablo Martinez, Sgt. Tomas Fernandez, Sgt. Leonardo Mojica, Sgt. Pepito Torio, Sgt. Prospero, Bona and AIC Aniceto Acupido. The prosecution represented by the Office of the petitioner TANODBAYAN, marked and thereafter offered as part of its evidence, the individual testimonies of private respondents before the Agrava. Board.' Private respondents, through their respective counsel objected to the admission of said exhibits. Private respondent Gen. Ver filed a formal "Motion to Exclude Testimonies of Gen. Fabian C. Ver before the Fact Finding Board as Evidence against him in the cases" contending that its admission will be in derogation of his constitutional right against self-incrimination and violative of the immunity granted by P.D. 1886. All the private respondents objected to the prosecution's formal offer of evidence on the same ground relied upon by them in their respective motion for exclusion. 'Petitioner TANODBAYAN opposed said motions contending that the immunity relied upon by the private respondents in support of their motions to exclude their respective testimonies, was not available to them because of their failure to invoke their right against self-incrimination before the ad hoc Fact Finding Board. It is the submission of the prosecution, that said testimonies are admissible against the private respondents, respectively, because of the latter's failure to invoke before the Agrava Board the immunity granted by P.D. 1886. Since private respondents did not invoke said privilege, the immunity did not attach. Petitioners went further by contending that such failure to claim said constitutional privilege amounts to a waiver thereof. Issue; Whether or not there was a violation of the right against self-incrimination with the testimonies given by the eight (8) private respondents who did not invoke their rights against self-incrimination before the Agrava Board. Held; The court ruled that notwithstanding, Presidential Decree No. 1886 denied them the right to remain silent. They were compelled to testify or be witnesses against themselves. Section 5 of P.D. 1886 leave them no choice. They have to take the witness stand, testify or produce evidence, under pain of contempt if they failed or refused to do so. The jeopardy of being placed behind prison bars even before conviction dangled before their very eyes. Similarly, they cannot invoke the right not to be a witness against themselves, both of which are sacrosanctly(sacredly) enshrined and

IN RE SABIO 504 SCRA 704 (2006) FACTS Among those required to appear by 2 Senate Committees in their inquiry on alleged anomalies in the PHILCOMPSAT, PHC and POTC were directors and officers of Philcomsat Holding Corp. ISSUE Can they refuse to honor the subpoena by invoking their right against self-incrimination? Ruling The right against self-incrimination maybe invoked by the officers of Philcomsat Holding Corp. only when an incriminating question is asked. They cannot refuse to appear since they have no way of knowing in advance the nature or effect of the questions to be asked from them. That this right may possibly be violated or abused is no ground for denying respondent Senate Committees their power of inquiry. The consolation is that when this power is abused, such issue may be presented before the courts. At this juncture, what is important is that respondent Senate Committees have sufficient Rules to guide them when the right against self-incrimination is invoked.

2.

IN WHAT PROCEEDINGS AVAILABLE PASCUAL vs. BOARD OF MEDICAL EXAMINERS 28 SCRA 344 (1969)

Facts: This involves a malpractice suit against a doctor for immorality. During the hearing, he was called by the prosecutor to testify, and he refused, invoking the right to self-incrimination. The board overruled him. He was made to take the stand, and made to object only if the question asked is incriminating. Ruling: Where petitioner was the respondent in the malpractice charge filed against him with the Board of Medical Examiners, the said Board cannot compel him to take the witness stand as a witness for the complainants. The principle against self-incrimination is equally applicable to a proceeding that could possibly result in the loss of the privilege to practice the medical profession. He may not be compelled to take the witness stand without his consent. It is because that penalty in such accusation is so severe that it can cause the revocation of the license to practice his profession. In effect, it is also a prohibition of inquiry, like in criminal cases.

GALMAN vs. PAMARAN 138 SCRA 274 (1985)

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protected by our fundamental law. Both these constitutional rights (to remain silent and not to be compelled to be a witness against himself) were right away totally foreclosed by P.D. 1886, And yet when they so testified and produced evidence as ordered, they were not immune from prosecution by reason of the testimony given by them. The subject matter dealt with and the line of questioning as shown by the transcript of their testimonies before the Agrava Board, indubitably evinced purposes other than merely eliciting and determining the so-called surrounding facts and circumstances of the assassination. They were called to the stand to determine their probable involvement in the crime being investigated. Yet they have not been informed or at the very least even warned while so testifying, even at that particular stage of their testimonies, of their right to remain silent and that any statement given by them may be used against them. The court was not persuaded that when they testified, they voluntarily waived their constitutional rights not to be compelled to be a witness against themselves much less their right to remain silent. "Compulsion as it is understood here does not necessarily connote the use of violence; it may be the product of unintentional statements. Pressure which operates to overbear his will disable him from in a free and rational choice, or impair his capacity for rational judgment would in our opinion be sufficient. So is moral coercion 'tending to force testimony from the unwilling lips of the defendant. The right "not to be compelled to testify against himself' applies to the herein private respondents notwithstanding that the proceedings before the Agrava Board is not, in its strictest sense, a case. No doubt, the private respondents were denied the sacred constitutional rights against self-incrimination, He still runs the risk of being prosecuted even if he sets up his right against self-incrimination. The dictates of fair play, which is the hallmark of due process, demands that private respondents should have been informed of their rights to remain silent and warned that any and all statements to be given by them may be used against them. They were denied, under the pretense that they are not entitled to it and that the Board has no obligation to so inform them. It is for this reason that the court cannot subscribe to the view adopted and urged upon by the petitioners-that the right against self-incrimination must be invoked before the Board in order to prevent use of any given statement against the testifying witness in a subsequent criminal prosecution. It applies not only to confessions but also to admissions whether made by a witness in any proceeding or by an accused in a criminal proceeding or any person under investigation for the commission of an offense. A literal application of a requirement of a claim of the privilege against self-incrimination as a condition sine qua non to the grant of immunity presupposes that from a layman's point of view, he has the option to refuse to answer questions and therefore, to make such claim. P.D. 1886, however, forecloses such option of refusal by imposing sanctions upon its exercise.

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voluntarily or under compulsion of subpoena, in any civil, criminal, or administrative proceeding. The right is NOT to "be compelled to be a witness against himself." It prescribes an "option of refusal to answer incriminating questions and not a prohibition of inquiry." It simply secures to a witness, whether he be a party or not, the right to refuse to answer any particular incriminatory question, i.e., one the answer to which has a tendency to incriminate him for some crime. However, the right can be claimed only when the specific question, incriminatory in character, is actually put to the witness. It cannot be claimed at any other time. It does not give a witness the right to disregard a subpoena, to decline to appear before the court at the time appointed, or to refuse to testify altogether. The witness receiving a subpoena must obey it, appear as required, take the stand, be sworn and answer questions. It is only when a particular question is addressed to him, the answer to which may incriminate him for some offense, that he may refuse to answer on the strength of the constitutional guaranty. That first sentence of Section 20(now sec17), Article IV(artIII) of the 1973 Constitution does not impose on the judge, or other officer presiding over a trial, hearing or investigation, any affirmative obligation to advise a witness of his right against selfincrimination. It is a right that a witness knows or should know, in accordance with the well known axiom that every one is presumed to know the law, that ignorance of the law excuses no one. Furthermore, in the very nature of things, neither the judge nor the witness can be expected to know in advance the character or effect of a question to be put to the latter. The right against self-incrimination is not self-executing or automatically operational. It must be claimed. If not claimed by or in behalf of the witness, the protection does not come into play. It follows that the right may be waived, expressly, or impliedly, as by a failure to claim it at the appropriate time. (giapil na lang nako ni just in case important) Rights of Defendant in Criminal Case The accused in court (or undergoing preliminary investigation before the public prosecutor), in common with all other persons, possesses the right against self-incrimination set out in the first sentence of Section 20 Article IV of the 1973 Constitution, i.e., the right to refuse to answer a specific incriminatory question at the time that it is put to him. The accused in a criminal case in court has other rights in the matter of giving testimony or refusing to do so. An accused "occupies a different tier of protection from an ordinary witness." The right of the defendant in a criminal case "to be exempt from being a witness against himself" signifies that he cannot be compelled to testify or produce evidence in the criminal case in which he is the accused, or one of the accused. He cannot be compelled to do so even by subpoena or other process or order of the Court. He cannot be required to be a witness either for the prosecution, or for a co-accused, or even for himself. In other words ---- unlike an ordinary witness (or a party in a civil action) who may be compelled to testify by subpoena, having only the right to refuse to answer a particular incriminatory question at the time it is put to him ---- the defendant in a criminal action can refuse to testify altogether. He can refuse to take the witness stand, be sworn, answer any question. And, as the law categorically states, "his neglect or refusal to be a witness shall not in any manner prejudice or be used against him." If he should wish to testify in his own behalf, however, he may do so. This is his right. But if he does testify, then he "may be cross-examined as any other witness." He may be cross-examined as to any matters stated in his direct examination, or connected therewith. He may not on cross-examination refuse to answer any question on the ground that the answer that he will give, or the evidence he will produce, would have a tendency to incriminate him for the crime with which he is charged. It must however be made clear that if the defendant in a criminal action be asked a question which might incriminate him, not for the crime with which he is charged, but for some other crime, distinct from that of which he is accused, he may decline to answer that specific question, on the strength of the right against selfincrimination granted by the first sentence of Section 20, Article IV of the 1973 Constitution (now Section 17 of the 1987 Constitution). It is clear from the undisputed facts of this case that Felipe Ramos was not in any sense under custodial interrogation, as the term should be properly understood, prior to and during the administrative inquiry into the discovered irregularities in ticket sales in which he appeared to have had a hand. The constitutional rights of a person under custodial interrogation under Section 20, Article IV of the 1973 Constitution did not therefore come into play, were of no relevance to the inquiry. It is also clear, too, that Ramos had voluntarily answered questions posed to him on the first day of the administrative investigation, February 9, 1986 and agreed that the

PEOPLE vs. AYSON 175 SCRA 216 (1989) Facts: Felipe Ramos was a ticket freight clerk of the Philippine Airlines (PAL), assigned at its Baguio City station. It was alleged that he was involved in irregularities in the sales of plane tickets. PAL management notified him of an investigation to be conducted into the matter. A day before the investigation, he gave handwritten note to his superiors for compromise settlement. Investigation was conducted. However, no compromise agreement was reached much less consummated. He was charged for estafa. Among the evidences offered by the prosecutor were the handwritten note (exhibit k) and the result of the investigation (exhibit a) wherein he admitted his guilt. The defense objected that said document, which appears to be a confession, was taken without the accused being represented by a lawyer. This was sustained by Judge Ayson since it does not appear that the accused was reminded of this constitutional rights to remain silent and to have counsel, and that when he waived the same and gave his statement, it was with the assistance actually of a counsel & also since it does not appear that the accused was assisted by counsel when he made said admission. Issue: When should the right against self-incrimination be applicable? Held: The right against self-incrimination, mentioned in Section 20 (now sec 17 of 1987 consti), Article IV (now art III) of the 1973 Constitution, is accorded to every person who gives evidence, whether

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proceedings should be recorded, the record having thereafter been marked during the trial of the criminal action subsequently filed against him as Exhibit A, just as it is obvious that the note (later marked as Exhibit K) that he sent to his superiors on February 8, 1986, the day before the investigation, offering to compromise his liability in the alleged irregularities, was a free and even spontaneous act on his part. They may not be excluded on the ground that the so-called "Miranda rights" had not been accorded to Ramos. His Honor adverts to what he perceives to be the "greater danger . . (of) the violation of the right of any person against self-incrimination when the investigation is conducted by the complaining parties, complaining companies, or complaining employers because being interested parties, unlike the police agencies who have no propriety or pecuniary interest to protect, they may in their overeagerness or zealousness bear heavily on their hapless suspects, whether employees or not, to give statements under an atmosphere of moral coercion, undue ascendancy, and undue influence." It suffices to draw attention to the specific and peremptory requirement of the law that disciplinary sanctions may not be imposed on any employee by his employer until and unless the employee has been accorded due process, by which is meant that the latter must be informed of the offenses ascribed to him and afforded adequate time and opportunity to explain his side. The requirement entails the making of statements, oral or written, by the employee under such administrative investigation in his defense, with opportunity to solicit the assistance of counsel, or his colleagues and friends. The employee may, of course, refuse to submit any statement at the investigation, that is his privilege. But if he should opt to do so, in his defense to the accusation against him, it would be absurd to reject his statements, whether at the administrative investigation, or at a subsequent criminal action brought against him, because he had not been accorded, prior to his making and presenting them, his "Miranda rights" (to silence and to counsel and to be informed thereof, etc.) which, to repeat, are relevant only in custodial investigations. Indeed, it is self-evident that the employee's statements, whether called "position paper," "answer," etc., are submitted by him precisely so that they may be admitted and duly considered by the investigating officer or committee, in negation or mitigation of his liability. Of course the possibility cannot be discounted that in certain instances the judge's expressed apprehensions may be realized, that violence or intimidation, undue pressure or influence be brought to bear on an employee under investigation ---- or for that matter, on a person being interrogated by another whom he has supposedly offended. In such an event, any admission or confession wrung from the person under interrogation would be inadmissible in evidence, on proof of the vice or defect vitiating consent, not because of a violation of Section 20, Article IV of the 1973 Constitution, but simply on the general, incontestable proposition that involuntary or coerced statements may not in justice be received against the makers thereof, and really should not be accorded any evidentiary value at all. ISSUE 2

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W/N the privilege Against Self-Incrimination can be invoke in legislative inquiry? YES. RULING A witness can invoke his right against self-incrimination only when a question tends to elicit an answer that will incriminate him is propounded to him. However, he may offer to answer any question in an executive session. No person can refuse to testify or be placed under oath or affirmation or answer questions before an incriminatory question is asked. His invocation of such right does not by itself excuse him from his duty to give testimony. In such a case, the Committee, by a majority vote of the members present there being a quorum, shall determine whether the right has been properly invoked. If the Committee decides otherwise, it shall resume its investigation and the question or questions previously refused to be answered shall be repeated to the witness. If the latter continues to refuse to answer the question, the Committee may punish him for contempt for contumacious conduct. The same directors and officers contend that the Senate is barred from inquiring into the same issues being litigated before the Court of Appeals and the Sandiganbayan. Suffice it to state that the Senate Rules of Procedure Governing Inquiries in Aid of Legislation provide that the filing or pendency of any prosecution of criminal or administrative action should not stop or abate any inquiry to carry out a legislative purpose. 3. a. b. USE IMMUNITY vs. TRANSACTIONAL IMMUNITY TRANSACTIONAL IMMUNITY USE AND FRUIT IMMUNITY GALMAN vs. PAMARAN 138 SCRA 274 (1985) (Tin Pia) 4. 5. EXCLUSIONARY RULE EFFECT OF DENIAL OF PRIVILEGES BY COURT CHAVEZ vs. CA 24 SCRA 663 (1968)

IN RE SABIO 504 SCRA 704 (2006) FACTS Chairman Sabio of PCGG refused to appear before the Senate Committee. In his letter to Senator Gordon dated August 18, 2006, he reiterated his earlier position, invoking Section 4(b) of E.O. No. 1 which provides: No member or staff of the Commission shall be required to testify or produce evidence in any judicial legislative or administrative proceeding concerning matters within its official cognizance. ISSUE 1 W/N the contention of Sabio is correct? No. RULING Considering these jurisprudential instructions, we find Section 4(b) directly repugnant with Article VI, Section 21. Section 4(b) exempts the PCGG members and staff from the Congress power of inquiry. This cannot be countenanced. Nowhere in the Constitution is any provision granting such exemption. The Congress power of inquiry, being broad, encompasses everything that concerns the administration of existing laws as well as proposed or possibly needed statutes.[22] It even extends to government agencies created by Congress and officers whose positions are within the power of Congress to regulate or even abolish.[23] PCGG belongs to this class.

X. RIGHT TO SPEEDY DISPOSITION OF CASES HOFER vs. HRET 426 SCRA 383 (2004) DIMAYACYAC vs. CA 430 SCRA 121 (2004) BERNAT vs. SANDIGANBAYAN 428 SCRA 787 (2004) PEOPLE vs. ANONAS 513 SCRA 552 (2007) CABARLES vs. MACEDA 516 SCRA 303 (2007)

REPORT OF JUDICIAL AUDIT 535 SCRA 224 (2007) PEREZ vs. PEOPLE 544 SCRA 532 (2008) (Erwin Vicente)
ENRIQUEZ et al vs. OFFICE OF THE OMBUDSMAN February 15, 2008/G.R. Nos. 174902-06

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Facts: In their Joint Counter-Affidavit, petitioners vehemently denied the administrative and criminal charges filed by respondent OMBUDSMAN in connection with the bidding of the Land Titling Computerization Project of the LRA. Thereafter, respondent conducted several hearings. On June 15, 2001, complainant FFIB filed its Formal Offer of Evidence, to which petitioners filed their Comment dated July 10, 2001. On January 29, 2002, petitioners likewise formally offered their evidence. On April 17, 2002, complainant FFIB filed its Comment thereon. Petitioners then waited for respondents resolution on the parties respective formal offers of evidence, but there was none. This prompted petitioners, on July 12, 2002, to file a Motion to Set Date for the Simultaneous Filing of Memorandum by Each Party. Respondent, however, did not act on petitioners motion. On December 12, 2002, Edilberto R. Feliciano, one of those charged with petitioners, filed a Motion for Early Resolution expressing alarm over the "inaction of the Office of the Ombudsman," and praying that the cases be resolved immediately considering that all the evidence have been formally offered and the parties arguments have been submitted. Despite all these and petitioners repeated personal follow-ups, still, respondent failed to resolve the cases. On March 24, 2006, or six (6) years from the filing of the complaintsaffidavits and more than four (4) years after the parties formally offered their evidence on January 29, 2002, petitioners filed a Motion to Dismiss all the cases against them as respondents "inordinate delay" constitutes a violation of their constitutional right to a speedy disposition of their cases. They alleged that such delay "has not only besmirched their reputation but also caused them severe anxiety and great and irreparable injustice as they have been denied employment opportunities and retirement benefits rightfully due them." Significantly, complainant FFIB, despite notice, did not interpose any objection to petitioners motion to dismiss. Yet, the cases have remained unresolved. Owing to respondents "stubborn inaction," petitioners, on October 20, 2006, filed a petition for mandamus, invoking their constitutional right to a speedy disposition of their cases. Issue: Whether respondent violated petitioners constitutional right to a speedy disposition of their cases. Ruling: Yes, there is a violation. The powers, functions and duties granted to respondent are aimed to enable respondent to be "a more active and effective agent of the people in ensuring accountability in public office." Unfortunately, respondent has transgressed its constitutional and statutory duties. When the Constitution enjoins respondent to "act promptly" on any complaint against any public officer or employee, it has the concomitant duty to speedily resolve the same. But respondent did not act promptly or resolve speedily petitioners cases. The Rules of Procedure of the Office of the Ombudsman requires that the hearing officer is given a definite period of "not later than thirty (30) days" to resolve the case after the formal investigation shall have been concluded. Definitely, respondent did not observe this 30-day rule. Here, respondent did not resolve the administrative and criminal cases against petitioners although the investigation of the said cases had long been terminated when the latter formally offered their evidence way back on January 29, 2002. In fact, due to respondents inaction, petitioners, on March 24, 2006 or more than four (4) years from January 29, 2002, filed a motion praying the immediate dismissal of all the cases against them, contending that respondents "inordinate delay" in resolving them constitutes a violation of their constitutional right to a speedy disposition of their cases. Significantly, this motion was never resisted by complainant FFIB. Nonetheless, respondent did not even bother to act on the motion. Likewise, it did not inform petitioners why the cases remain unresolved. GAAS VS. MITMUG, REGIONAL DIRECTOR, REGION XII, COMMISSION ON AUDIT April 30, 2008/G.R. No. 165776 Facts: Petitioners Genevieve O. Gaas and Adelina P. Gomera were the bookkeeper and senior clerk, respectively, of the Office of the Municipal Treasurer, Municipality of Bacolod, Lanao del Norte.

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Based on the comprehensive audit report submitted by the auditors, the Commission on Audit (COA) sent a Letter dated October 29, 1991 to the Office of the Ombudsman for Mindanao, recommending the filing of appropriate disciplinary actions against petitioners. The Office of the Ombudsman administratively charged petitioners, Revenue Collection Clerk Nelson L. Gonzales and Municipal Mayor Warlino M. Relova for dishonesty. They were required to submit counter-affidavits. On October 23, 1997, the Office of the Ombudsman for Mindanao rendered a Decision finding petitioners and Gonzales guilty of gross neglect of duty and ordered their dismissal. The complaint against Mayor Relova was dismissed without prejudice to the result of the investigation of the criminal aspect of the same acts. The Office of the Ombudsman for Mindanao found substantial evidence against petitioners for violating government accounting and auditing rules since petitioners made disbursements without proper documentation. The Court of Appeals affirmed the decision. Petitioners argue that there was a misapprehension of facts by the Ombudsman and the Court of Appeals since the shortage happened when the funds were still in the possession of the collectors and not petitioners. They also lament that although the complaint was filed with the Office of the Ombudsman for Mindanao as early as November 18, 1991, the order for them to file their counter-affidavits was made only on June 16, 1995 or more than three years after and the case was resolved only on October 23, 1997. According to them, the delay violated their constitutional rights to due process and to a speedy disposition of the case. Issue: Were petitioners' rights to a speedy trial and to a speedy disposition of the case violated? Ruling: There was no violation of petitioners' rights to a speedy trial and to a speedy disposition of the case. In this case, although it is true that the Complaint was filed on November 18, 1991 and petitioners received an Order directing them to submit their counter-affidavits only three years after or on June 16, 1995, they failed to raise the issue of speedy disposition of the case at that time. Instead, they submitted their counter-affidavits. It was only in this petition that they first raised the issue. Neither have they moved for a speedy resolution of the case. It was only when they lost and pursued their appeal that they first raised the issue. It cannot therefore be said that the proceedings are attended by vexatious, capricious and oppressive delays. Petitioners cannot now seek the protection of the law to benefit from the adverse effects of their failure to raise the issue at the first instance. In effect, they are deemed to have waived their rights when they filed their counteraffidavits after they received the Order dated June 16, 1995 without immediately questioning the alleged violations of their rights to a speedy trial and to a speedy disposition of the case. OMBUDSMAN VS. JURADO August 06, 2008/ G.R. No. 154155 Facts: On August 16, 1999, the Administrative Adjudication Bureau (AAB) of the OMB rendered judgment finding respondent Bureau of Customs Division Chief administratively liable for neglect of duty, penalizing him with suspension for six months without pay. Respondent's motion for reconsideration of his suspension was likewise denied by the Ombudsman. Aggrieved, respondent appealed to the CA. In his appeal, respondent argued, among others, that his right to a speedy disposition of his case had been violated; that the administrative case against him should have been dismissed following the dismissal of the criminal charges against him; and that there is no substantial evidence on record to make him administratively liable. The CA reversed and set aside the decision and resolution of the Ombudsman. Issue: WON respondents right to speedy trial was violated. Ruling: Respondent's right to the speedy disposition of cases has not been violated. First. It is undisputed that the FFB of the OMB recommended that respondent together with other officials of the Bureau of Customs be criminally charged for violation of Section 3(e) of R.A. No. 3019 and Section 3601 of the Tariff and Customs Code. The same bureau also recommended that respondent be administratively charged. Prior to

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the fact-finding report of the FFB of the OMB, respondent was never the subject of any complaint or investigation relating to the incident surrounding Maglei's non-existent customs bonded warehouse. In fact, in the original complaint filed by the Bureau of Customs, respondent was not included as one of the parties charged with violation of the Tariff and Customs Code. With respect to respondent, there were no vexatious, capricious, and oppressive delays because he was not made to undergo any investigative proceeding prior to the report and findings of the FFB. Simply put, prior to the report and recommendation by the FFB that respondent be criminally and administratively charged, respondent was neither investigated nor charged. That respondent was charged only in 1997 while the subject incident occurred in 1992, is not necessarily a violation of his right to the speedy disposition of his case. The record is clear that prior to 1997, respondent had no case to speak of - he was not made the subject of any complaint or made to undergo any investigation. Second. Even if We were to reckon the period from when respondent was administratively charged to the point when the Ombudsman found respondent administratively liable, We still find no violation of the right to speedy disposition of cases. In making a determination of what constitutes a violation of the right to the speedy disposition of cases, this Court has time and again employed the balancing test. Records reveal that on September 29, 1997, the FFB of the OMB recommended that respondent be criminally and administratively charged. Subsequently, the OMB approved the recommendation on October 17, 1997. Respondent submitted his counter-affidavit on February 2, 1998 and motion to dismiss on October 8, 1998 before the Administrative Adjudication Bureau of the OMB. On August 16, 1999, the AAB rendered a decision finding petitioner administratively liable for neglect of duty. More or less, a period of two (2) years lapsed from the fact-finding report and recommendation of the FFB until the time that the AAB rendered its assailed decision. To our mind, the time it took the Ombudsman to complete the investigation can hardly be considered an unreasonable and arbitrary delay as to deprive respondent of his constitutional right to the speedy disposition of his case. Further, there is nothing in the records to show that said period was characterized by delay which was vexatious, capricious or oppressive. There was no inordinate delay amounting to a violation of respondent's constitutional rights. The assertion of respondent that there was a violation of his right to the speedy disposition of cases against him must necessarily fail.

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May 24, 1993 G.R. No. 105907 Facts: Feliciano Agbanlog y Vinluan was the Officer-in-Charge of the Office of the Municipal Treasurer of Aglipay, Quirino, for the period: March 24, 1986 to May 31, 1988. When audited by COA Auditing Examiner Marcelina P. Reyes of the Provincial Auditor's Office of Cobarroguis, Quirino, on August 4, 1986 for the aforesaid period of his incumbency as Acting Municipal Treasurer, Feliciano Agbanlog was found short in his cash and accounts in the sum of P21,940.70. The Sandiganbayan (First Division) found petitioner guilty beyond reasonable doubt of Malversation of Public Funds, penalized under paragraph 4, Article 217, of the Revised Penal Code, and sentencing him to suffer, in the absence of mitigating and aggravating circumstances "the indeterminate penalty of, from ELEVEN (11) years and one (1) DAY of Prision Mayor, as minimum to SIXTEEN (16) YEARS, FIVE (5) MONTHS and ELEVEN (11) DAYS of Reclusion Temporal, as maximum, with the accessory penalties of the law; to pay a fine in the amount of P21,940.70; to suffer the penalty of perpetual special disqualification and to pay the costs." Petitioner questions as oppressive and unconstitutional the penalty imposed on him that of eleven years and one day of prision mayor, as minimum, to sixteen years, five months and eleven days of reclusion temporal, as maximum. He argues that considering the value of the peso in 1932 when the Revised Penal Code was enacted and the value of peso today, the penalty for malversation of P21,000.00 should only be an imprisonment of one or two years. (Rollo, pp. 10-11) Ruling: Assuming arguendo that inflation has in effect made more severe the penalty for malversing P21,000.00, the remedy cannot come from this Court but from the Congress. The Court can intervene and strike down a penalty as cruel, degrading or inhuman only when it has become so flagrantly oppressive and so wholly disproportionate to the nature of the offense as to shock the moral senses. (People v. Dionisio, 22 SCRA 1299 [1968]; People v. Estoista, 93 Phil. 647 [1953]; U.S. v. Borromeo, 23 Phil. 279 [1912]) Considering that malversation of public funds by a public officer is a betrayal of the public trust, We are not prepared to say that the penalty imposed on petitioner is so disproportionate to the crime committed as to shock the moral sense. People v. Nitafan April 6, 1992/ G.R. No. 81559-60 Facts: Petitioner Allied Banking Corporation charged Betty Sia Ang with estafa alleging that said accused, being then the proprietress of Eckart Enterprises, wilfully, unlawfully and feloniously defrauded the Allied Banking Corporation, by receiving in trust from the aforesaid bank Gordon Plastics, plastic sheeting and Hook Chromed, in the total amount of P398,000.00, specified in a trust receipt and covered by Domestic Letter of Credit No. DLC-002-801254, under the express obligation on the part of said accused to sell the same and account for the proceeds of the sale thereof, if sold, or to return said merchandise, if not sold, on or before October 16, 1980, or upon demand, but the said accused, once in possession of the said articles, far from complying with the aforesaid obligation, notwithstanding repeated demands made upon her to that effect, paid only the amount of P283,115.78, thereby leaving unaccounted for the amount of P114,884.22 which, once in her possession, with intent to defraud, she misappropriated, misapplied and converted to her own personal use and benefit, to the damage and prejudice of said Allied Banking Corporation in the aforesaid sum of P114,884.22, Philippine Currency. The accused filed a motion to quash the information on the ground that the facts charged do not constitute an offense. On January 7, 1988, the respondent judge granted the motion to quash. The order was anchored on the premise that a trust receipt transaction is an evidence of a loan being secured so that there is, as between the parties to it, a creditor-debtor relationship. The court ruled that the penal clause of Presidential Decree No. 15 on the Trust Receipts Law is inoperative because it does not actually punish an offense mala prohibita. The law only refers to the relevant estafa provision in the Revised Penal Code. The Court relied on the judicial pronouncements in People v. Cuevo, 104 SCRA 312 [1981] where, for lack of the required number of votes, this Court upheld the dismissal of a charge for estafa for a violation of a trust receipt agreement; and in Sia v. People, 121 SCRA 655 [1983] where we held that the violation merely gives rise to a civil obligation. At the time the order to quash was issued or on January 7, 1988, these two decisions were the only most recent ones. Hence, this petition. Issue: WON P.D. 115 is unconstitutional as it violates the constitutional prohibition against imprisonment for non-payment of a debt.

XI. Substantive Rights under the due process clause A. What acts cannot be criminalized 1. Mere beliefs and aspirations 2. Debts and Civil Obiligations
Lozano v. Martinez December 18, 1986/ G.R. No. L-63419 Ruling: Among the constitutional objections raised against BP 22, the most serious is the alleged conflict between the statute and the constitutional provision forbidding imprisonment for debt. It is contended that the statute runs counter to the inhibition in the Bill of Rights which states, "No person shall be imprisoned for debt or nonpayment of a poll tax." Petitioners insist that, since the offense under BP 22 is consummated only upon the dishonor or non-payment of the check when it is presented to the drawee bank, the statute is really a "bad debt law" rather than a "bad check law." What it punishes is the non-payment of the check, not the act of issuing it. The statute, it is claimed, is nothing more than a veiled device to coerce payment of a debt under the threat of penal sanction. The reach and scope of this constitutional safeguard have been the subject of judicial definition, both by our Supreme Court and by American State courts. Mr. Justice Malcolm speaking for the Supreme Court in Ganaway vs. Queen, stated: "The 'debt' intended to be covered by the constitutional guaranty has a well-defined meaning. Organic provisions relieving from imprisonment for debt, were intended to prevent commitment of debtors to prison for liabilities arising from actions ex contractu The inhibition was never meant to include damages arising in actions ex delicto, for the reason that damages recoverable therein do not arise from any contract entered into between the parties but are imposed upon the defendant for the wrong he has done and are considered as punishment, nor to fines and penalties imposed by the courts in criminal proceedings as punishments for crime." Agbanlog v. People

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

Ruling: The factual circumstances in the present case show that the alleged violation was committed sometime in 1980 or during the effectivity of P.D. 115. The failure, therefore, to account for the P114,884.22 balance is what makes the accused-respondent criminally liable for estafa. The Court reiterates its definitive ruling that, in the Cuevo and Sia (1983) cases relied upon by the accused, P.D. 115 was not applied because the questioned acts were committed before its effectivity. (Lee v. Rodil, supra, p. 108) At the time those cases were decided, the failure to comply with the obligations under the trust receipt was susceptible to two interpretations. The Court in Sia adopted the view that a violation gives rise only to a civil liability as the more feasible view "before the promulgation of P.D. 115," notwithstanding prior decisions where we ruled that a breach also gives rise to a liability for estafa. Vergara v. Gedorio April 30, 2003/G.R. No. 154037

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(3) changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed; (4) alters the legal rules of evidence, and authorizes conviction upon less or different testimony than the law required at the time of the commission of the offense; (5) assuming to regulate civil rights and remedies only, in effect imposes penalty or deprivation of a right for something which when done was lawful; and (6) deprives a person accused of a crime of some lawful protection to which he has become entitled, such as the protection of a former conviction or acquittal, or a proclamation of amnesty. From the aforesaid definition as well as classification of ex post facto laws, the constitutional inhibition refers only to criminal laws which are given retroactive effect. While it is true that Sec. 18 penalizes a violation of any provision of R.A. No. 6132 including Sec. 8(a) thereof, the penalty is imposed only for acts committed after the approval of the law and not those perpetrated prior thereto. There is nothing in the law that remotely insinuates that Secs. 8(a) and 18, or any other provision thereof, shall apply to acts carried out prior to its approval. On the contrary, See. 23 directs that the entire law shall be effective upon its approval. It was approved on August 24, 1970. (Eileen Villagracia)

Facts: Petitioners are the tenants of Berlito P. Taripe on a property located in Dr. A. Santos Ave., Paraaque City. They were arrested for indirect contempt for not complying with the probate court's order directing them to pay their monthly rentals to respondent Bolao. Then, some of the petitioners, together with the other tenants of the property, informed the probate court that they are "freezing" their monthly rentals as they are in a quandary as to whom to pay the rentals. The probate court found petitioners guilty of indirect contempt and ordered them to pay a fine of P30,000.00 each and to undergo imprisonment until they comply with the probate court's order for them to pay rentals. Petitioners were then arrested. They filed with the Court of Appeals a petition for the issuance of a writ of habeas corpus which ordered their temporary release. Issue: WON the order to under imprisonment violates the right to nonimprisonment of debt. Ruling: The trial court's finding of contempt and the order directing the imprisonment of petitioner were unwarranted. In Philippine jurisdiction, Section 20, Article 3 of the 1987 Philippine Constitution expressly provides that no person shall be imprisoned for debt. Debt, as used in the Constitution, refers to civil debt or one not arising from a criminal offense. It means any liability to pay arising out of a contract, express or implied. In the present case, petitioners, as recognized lessees of the estate of the deceased, were ordered by the probate court to pay the rentals to the administratrix. Petitioners did not comply with the order for the principal reason that they were not certain as to the rightful person to whom to pay the rentals because it was a certain Berlito P. Taripe who had originally leased the subject property to them. Clearly, the payment of rentals is covered by the constitutional guarantee against imprisonment.

WRIGHT vs CA (235 SCRA 341 [1994] Facts: The Philippines ratified an extradition treaty with Australia on September 10, 1990 and took effect on October 10, 1990. Wright became subject of the said treaty. He assails the extradition as ex post facto law. ISSUE: Whether or not an extradition treaty may be given retroactive effect. Ruling: Yes. The SC ruled that the extradition treaty is not a penal or criminal statute. "It merely provides for the extradition of persons wanted for prosecution of an offense or a crime which offense or crime was already committed or consummated at the time the treaty was ratified." Hence, it may be given retroactive effect and does not violate the Constitutional provision. SUBIDO v. SANDIGANBAYAN, 266 S 379 (1997) Facts: RA No. 7975 amended PD No. 1606 by, among others, vesting jurisdiction on the SB over national and local officials classified as Grade 27 or higher who are charged with certain criminal offenses regardless of the imposable penalty. The amending law took effect on May 6, 1995. ISSUE: Whether or not said law be applied to accused who committed a crime on June 25, 1992 without violating the prohibition on ex post facto laws. Ruling: Yes. RA No. 7975 is not a penal law. Penal laws or statutes are those acts of the legislature which prohibits certain acts and establish penalties for their violation. RA No. 7975, in further amending PD No. 1606 as regards the SBs jurisdiction, mode of appeal, and other procedural matters, is clearly a procedural law, i.e., one which prescribes rules and forms of procedure for enforcing rights or obtaining redress for their invasion, or those which refer to rules of procedure by which courts applying laws of all kinds can properly administer justice. Likewise, it is a curative or remedial statute, one which cures defects and adds to the means of enforcing existing obligations. As a procedural and curative statute, RA No. 7975 may validly be given retroactive effect, there being no impairment of vested rights.

3. Acts which when done were innocent (Ex Post Facto Law)
IN THE MATTER OF THE PETITION FOR THE DECLARATION OF THE PETITIONER'S RIGHTS AND DUTIES UNDER SEC. 8 OF R.A. No. 6132. KAY VILLEGAS KAMI, INC., petitioner. October 22, 1970/G.R. No. L-32485 Facts: This petition for declaratory relief was filed by Kay Villegas Kami, Inc., claiming to be a duly recognized and existing non-stock and non-profit corporation created under the laws of the land, and praying for a determination of the validity of Sec. 8 of R.A. No. 6132 and a declaration of petitioner's rights and duties thereunder. In paragraph 7 of its petition, petitioner avers that it has printed materials designed to propagate its ideology and program of government, which materials include Annex B; and that in paragraph 11 of said petition, petitioner intends to pursue its purposes by supporting delegates to the Constitutional Convention who will propagate its ideology. Issue: WON Sec. 18 of R.A. No. 6132 including Sec. 8(a) thereof is an ex post facto law. Ruling: No. An ex post facto law is one which:. (1) makes criminal an act done before the passage of the law and which was innocent when done, and punishes such an act; (2) aggravates a crime, or makes it greater than it was, when committed;

FAJARDO v. CA, 302 S 503 (1999) Facts: For issuing a bouncing check in 1981, accused was convicted of violation of BP Blg. 22 on May 26, 1988 by the RTC. His appeal to the CA resulted to the affirmance of the conviction on Feb. 27, 1993. He applied for probation but it was denied because under the amendment to PD No. 986 which became effective in 1986, one who has perfected an appeal is not eligible for probation. ISSUE: Whether or not applying a 1986 amendment to a crime committed in 1981 violates the prohibition against ex post facto laws.

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

Ruling: The law is not ex post facto in application. The law applies only to those convicted after its effectivity. Petitioner was convicted on May 26, 1988, and he appealed. At that time, he no longer had the option to appeal and still apply for probation if unsuccessful in the appeal. The amendment was then in full effect. Hence, he could no longer apply for probation since he appealed. In addition, an ex post facto law is one that punishes an act as a crime which was innocent at the time of its commission. The Probation Law, however, is not a penal statute. CHAVEZ v. COMELEC Facts: Commission on Elections (COMELEC) enforcing Section 32 of its Resolution No. 6520, dated January 6, 2004. The assailed provision is, as follows: Section 32. All propaganda materials such as posters, streamers, stickers or paintings on walls and other materials showing the picture, image, or name of a person, and all advertisements on print, in radio or on television showing the image or mentioning the name of a person, who subsequent to the placement or display thereof becomes a candidate for public office shall be immediately removed by said candidate and radio station, print media or television station within 3 days after the effectivity of these implementing rules; otherwise, he and said radio station, print media or television station shall be presumed to have conducted premature campaigning in violation of Section 80 of the Omnibus Election Code. Issue: Whether or not said resolution violates the prohibition against ex post facto law. Ruling: Hence, it makes a person, whose name or image is featured in any such advertisement, liable for premature campaigning under the Omnibus Election Code. A close scrutiny of this rationale, however, demonstrates its lack of persuasiveness. Section 32, although not penal in nature, defines an offense and prescribes a penalty for said offense. Laws of this nature must operate prospectively, except when they are favorable to the accused. It should be noted, however, that the offense defined in the assailed provision is not the putting up of propaganda materials such as posters, streamers, stickers or paintings on walls and other materials showing the picture, image or name of a person, and all advertisements on print, in radio or on television showing the image or mentioning the name of a person, who subsequent to the placement or display thereof becomes a candidate for public office. Nor does it prohibit or consider an offense the entering of contracts for such propaganda materials by an individual who subsequently becomes a candidate for public office. One definitely does not commit an offense by entering into a contract with private parties to use his name and image to endorse certain products prior to his becoming a candidate for public office. The offense, as expressly prescribed in the assailed provision, is the non-removal of the described propaganda materials three (3) days after the effectivity of COMELEC Resolution No. 6520. If the candidate for public office fails to remove such propaganda materials after the given period, he shall be liable under Section 80 of the Omnibus Election Code for premature campaigning. Indeed, nowhere is it indicated in the assailed provision that it shall operate retroactively. There is, therefore, no ex post facto law in this case. SALVADOR v. MAPA Facts: On October 8, 1992 then President Fidel V. Ramos issued Administrative Order No. 13 creating the Presidential Ad Hoc FactFinding Committee on Behest Loans. Several loan accounts were referred to the Committee for investigation, including the loan transactions between Metals Exploration Asia, Inc. (MEA), now Philippine Eagle Mines, Inc. (PEMI) and the Development Bank of the Philippines (DBP). After examining and studying the documents relative to the loan transactions, the Committee determined that they bore the characteristics of behest loans, as defined under Memorandum Order No. 61 because the stockholders and officers of PEMI were known cronies of then President Ferdinand Marcos; the loan was under-collateralized; and PEMI was undercapitalized at the time the loan was granted. Specifically, the investigation revealed that in 1978, PEMI applied for a foreign currency loan and bank investment on its preferred shares with DBP. The loan application was approved on April 25, 1979 per Board Resolution (B/R) No. 1297, but the loan was never released because PEMI failed to comply with the conditions imposed by DBP. To accommodate PEMI, DBP subsequently adopted B/R No. 2315 dated June 1980, amending B/R No. 1297, authorizing the release of PEMIs foreign currency loan proceeds, and even increasing the same. Per B/R No. 95 dated October 16, 1980, PEMI was granted a foreign currency loan of $19,680,267.00 or P146,601,979.00, and it was

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released despite non-compliance with the conditions imposed by DBP. The Committee claimed that the loan had no sufficient collaterals and PEMI had no sufficient capital at that time because its acquired assets were only valued at P72,045,700.00, and its paid up capital was only P46,488,834.00. Consequently, Atty. Orlando L. Salvador, Consultant of the FactFinding Committee, and representing the Presidential Commission on Good Government (PCGG), filed with the Office of the Ombudsman (Ombudsman) a sworn complaint for violation of Sections 3(e) and (g) of Republic Act No. 3019, or the Anti-Graft and Corrupt Practices Act, against the respondents Placido I. Mapa, Jr., Rafael A. Sison; Rolando M. Zosa; Cesar C. Zalamea; Benjamin Barot, Casimiro Tanedo, J.V. de Ocampo, Bienvenido R. Tantoco, Jr., Francis B. Banes, Ernesto M. Caringal, Romeo V. Jacinto, Manuel D. Tanglao and Alicia Ll. Reyes. Issue: Whether or not Administrative Order No. 13 and Memorandum Order No. 61 violate the prohibition against ex post facto laws Ruling: Administrative Order No. 13 and Memorandum Order No. 61 are not ex post facto laws. An ex post facto law has been defined as one (a) which makes an action done before the passing of the law and which was innocent when done criminal, and punishes such action; or (b) which aggravates a crime or makes it greater than it was when committed; or (c) which changes the punishment and inflicts a greater punishment than the law annexed to the crime when it was committed; or (d) which alters the legal rules of evidence and receives less or different testimony than the law required at the time of the commission of the offense in order to convict the defendant. This Court added two (2) more to the list, namely: (e) that which assumes to regulate civil rights and remedies only but in effect imposes a penalty or deprivation of a right which when done was lawful; or (f) that which deprives a person accused of a crime of some lawful protection to which he has become entitled, such as the protection of a former conviction or acquittal, or a proclamation of amnesty. The constitutional doctrine that outlaws an ex post facto law generally prohibits the retrospectivity of penal laws. Penal laws are those acts of the legislature which prohibit certain acts and establish penalties for their violations; or those that define crimes, treat of their nature, and provide for their punishment. The subject administrative and memorandum orders clearly do not come within the shadow of this definition. Administrative Order No. 13 creates the Presidential Ad Hoc Fact-Finding Committee on Behest Loans, and provides for its composition and functions. It does not mete out penalty for the act of granting behest loans. Memorandum Order No. 61 merely provides a frame of reference for determining behest loans. Not being penal laws, Administrative Order No. 13 and Memorandum Order No. 61 cannot be characterized as ex post facto laws. There is, therefore, no basis for the Ombudsman to rule that the subject administrative and memorandum orders are ex post facto. PEOPLE v. CASTA Facts: The crime of murder was committed by Casta on August 20, 1989 which was before the effectivity of Republic Act No. 7659 on December 31, 1993 amending Article 248 of the Revised Penal Code on murder, raising the penalty to reclusion perpetua to death. Prior to its amendment the penalty for the crime of murder under Article 248 of the Revised Penal Code was reclusion temporal in its maximum period to death. Ruling: In light of the greater penalty that attaches under the amendment, the previous penalty of reclusion temporal in its maximum period to death will have to be imposed in order not to run afoul of the constitutional prohibition against ex post facto laws. Under Section 22 of Article III of the 1987 Constitution, no ex post facto law or bill of attainder shall be enacted. An ex post facto law, among others, is one that changes the penalty and inflicts a greater punishment than what the law annexed to the crime when committed[46] - the situation that would obtain if the amendment under Republic Act No. 7659 would be applied.

BILLS OF ATTAINDER
PEOPLE v. FERRER Facts: On March 5, 1970 a criminal complaint for violation of section 4 of the Anti-Subversion Act was filed against the respondent Feliciano Co in the Court of First Instance of Tarlac. The AntiSubversion Law declared the CPP as an organized conspiracy to

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CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

overthrow the government and so anyone who becomes a member or remains to be one considered as subversive and can be punished. Diokno the lawyer, wuestioned this and considered this as bill of attainder because it punishes pople for merely becoming a member of an organization. There is a legislative declaration that the CPP is a criminal organization. Issue: Whether or not Anti Subversion Law is a bill of attainder. Ruling: Article III, section 1 (11) of the Constitution states that "No bill of attainder or ex port facto law shall be enacted." A bill of attainder is a legislative act which inflicts punishment without trial. Its essence is the substitution of a legislative for a judicial determination of guilt. The constitutional ban against bills of attainder serves to implement the principle of separation of powers by confining legislatures to rule-making and thereby forestalling legislative usurpation of the judicial function. History in perspective, bills of attainder were employed to suppress unpopular causes and political minorities, and it is against this evil that the constitutional prohibition is directed. The singling out of a definite class, the imposition of a burden on it, and a legislative intent, suffice to stigmatizea statute as a bill of attainder. In the case at bar, the Anti-Subversion Act was condemned by the court a quo as a bill of attainder because it "tars and feathers" the Communist Party of the Philippines as a "continuing menace to the freedom and security of the country; its existence, a 'clear, present and grave danger to the security of the Philippines.'" By means of the Act, the trial court said, Congress usurped "the powers of the judge," and assumed "judicial magistracy by pronouncing the guilt of the CCP without any of the forms or safeguards of judicial trial." Finally, according to the trial court, "if the only issue [to be determined] is whether or not the accused is a knowing and voluntary member, the law is still a bill of attainder because it has expressly created a presumption of organizational guilt which the accused can never hope to overthrow." When the Act is viewed in its actual operation, it will be seen that it does not specify the Communist Party of the Philippines or the members thereof for the purpose of punishment. What it does is simply to declare the Party to be an organized conspiracy for the overthrow of the Government for the purposes of the prohibition, stated in section 4, against membership in the outlawed organization. The term "Communist Party of the Philippines" issued solely for definitional purposes. In fact the Act applies not only to the Communist Party of the Philippines but also to "any other organization having the same purpose and their successors." Its focus is not on individuals but on conduct. REPUBLIC v. RMDC Facts: The four (4) petitioners, namely, Dr. Lourdes S. Pascual, Dr. Pedro De la Concha, Alejandro De La Concha, and Rufo De Guzman, after having been granted permission to prospect for marble deposits in the mountains of Biak-na-Bato, San Miguel, Bulacan, succeeded in discovering marble deposits of high quality and in commercial quantities in Mount Mabio which forms part of the Biak-na-Bato mountain range. The trial court ruled that the privilege granted under respondents license had already ripened into a property right, which was protected under the due process clause of the Constitution. Such right was supposedly violated when the license was cancelled without notice and hearing. The cancellation was said to be unjustified, because the area that could be covered by the four separate applications of respondents was 400 hectares. Finally, according to the RTC, Proclamation No. 84, which confirmed the cancellation of the license, was an ex post facto law; as such, it violated Section 3 of Article XVIII of the 1987 Constitution. Issue: Whether or not Proclamation no. 84 is a bill of attainder or ex post facto law. Ruling: Supreme Court sustain the argument that Proclamation No. 84 is a bill of attainder; that is, a legislative act which inflicts punishment without judicial trial. Its declaration that QLP No. 33 is a patent nullity is certainly not a declaration of guilt. Neither is the cancellation of the license a punishment within the purview of the constitutional proscription against bills of attainder. Too, there is no merit in the argument that the proclamation is an ex post facto law. There are six recognized instances when a law is considered as such: 1) it criminalizes and punishes an action that was done before the passing of the law and that was innocent when it was done; 2) it aggravates a crime or makes it greater than it was when it was committed; 3) it changes the punishment and inflicts one that is greater than that imposed by the law annexed to the crime when it was committed; 4) it alters the legal rules of evidence and authorizes conviction upon a less or different testimony than that required by the law at the time of the commission of the offense; 5) it assumes the

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regulation of civil rights and remedies only, but in effect imposes a penalty or a deprivation of a right as a consequence of something that was considered lawful when it was done; and 6) it deprives a person accused of a crime of some lawful protection to which he or she become entitled, such as the protection of a former conviction or an acquittal or the proclamation of an amnesty. Proclamation No. 84 does not fall under any of the enumerated categories; hence, it is not an ex post facto law. It is settled that an ex post facto law is limited in its scope only to matters criminal in nature. Proclamation 84, which merely restored the area excluded from the Biak-na-Bato national park by canceling respondents license, is clearly not penal in character. Finally, it is stressed that at the time President Aquino issued Proclamation No. 84 on March 9, 1987, she was still validly exercising legislative powers under the Provisional Constitution of 1986. Section 1 of Article II of Proclamation No. 3, which promulgated the Provisional Constitution, granted her legislative power until a legislature is elected and convened under a new Constitution. The grant of such power is also explicitly recognized and provided for in Section 6 of Article XVII of the 1987 Constitution. (Cyril Villarosa) B. WHAT PUNISHMENTS CANNOT BE IMPOSED 1. INVOLUNTARY SERVITUDE SARMIENTO vs. TUICO 162 SCRA 676 (1988) 2. EXCESSIVE FINES PEOPLE vs. DELA CRUZ 92 PHIL 906 (1953) PEOPLE vs. DACUYCUY 173 SCRA 901 (1989) AGBANLOG vs. PEOPLE 220 SCRA 530 (1993) 3. CRUEL, DEGRADING & INHUMANE PUNISHMENTS PEOPLE vs. ECHEGARAY 267 SCRA 682 (1997) PEOPLE vs. TONGKO 290 SCRA 595 (1998) ECHEGARAY vs. SECRETARY 297 SCRA 754 (1998) LIM vs. PEOPLE 390 SCRA 194 (2002) (Pebbles Vicente) -digests are on hard copy; ask copy from thyrza

Caveat: Cases found in Page 17 starting from the topic The Protection against Double Jeopardyand all cases found in page 18 of the syllabusno assigned persons to digest said cases. The Annotations are also not included.

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