REPUBLIC OF THE PHILIPPINES, represented by THE NATIONAL IRRIGATION ADMINISTRATION (NIA) v. RURAL BANK OF KABACAN, INC., et al. G.R.

No. 185124, 15 January 2012, SECOND DIVISION (Sereno, J.)

In the context of expropriation proceedings, the soil has no value separate from that of the expropriated land because real properties are characteristically indivisible; hence, the ownership of the land extends to the surface as well as to the subsoil under it.

FACTS: The National Irrigation Administration (NIA) filed with the Regional Trial Court of Kabacan (RTC) a complaint for expropriation of a portion of three parcels of land covering a total of 14,497.91 square meters for its Malitubog-Marigadao irrigation project. The committee formed by the RTC pegged the fair market value of the land at Php 65.00 per square meter. It also added to its computation the value of soil excavated from portions of two lots. RTC adopted the findings of the committee despite the objections of NIA to the inclusion of the value of the excavated soil in the computation of the value of the land. NIA, through the Office of the Solicitor General, appealed to the Court of Appeals (CA) which affirmed with modification the RTCs decision. CA deleted the value of the soil in determination of compensation but affirmed RTCs valuation of the improvements made on the properties. ISSUE: Whether or not the value of the excavated soil should be included in the computation of just compensation HELD: Petition DENIED. There is no legal basis to separate the value of the excavated soil from that of the expropriated properties, contrary to what the trial court did. In the context of expropriation proceedings, the soil has no value separate from that of the expropriated land. Just compensation ordinarily refers to the value of the land to compensate for what the owner actually loses. Such value could only be that which prevailed at the time of the taking. In National Power Corporation v. Ibrahim, et al. The SC held that rights over lands are indivisible. This conclusion is drawn from Article 437 of the Civil Code which provides: The owner of a parcel of land is the owner of its surface and of everything under it, and he can construct thereon any works or make any plantations and excavations which he may deem proper, without detriment to servitudes and subject to special laws and ordinances. He cannot complain of the reasonable requirements of aerial navigation. Thus, the ownership of land extends to the surface as well as to the subsoil under it. Hence, the CA correctly modified the trial courts Decision when it ruled it is preposterous that NIA will be made to pay not only for the value of the land but also for the soil excavated from such land when such excavation is a necessary phase in the building of irrigation

projects. That NIA will make use of the excavated soil is of no moment and is of no concern to the landowner who has been paid the fair market value of his land. As pointed out by the OSG, the law does not limit the use of the expropriated land to the surface area only. To sanction the payment of the excavated soil is to allow the landowners to recover more than the value of the land at the time when it was taken, which is the true measure of the damages, or just compensation, and would discourage the construction of important public improvements.

DOUGLAS R. CAGAS v. THE COMMISSION ON ELECTIONS and CLAUDE P. BAUTISTA

A party aggrieved by an interlocutory order issued by a COMELEC Division in an election protest may not directly assail the order before the Supreme Court through a special civil action for certiorari. The remedy is to to seek the review of said interlocutory order during the appeal of the decision of the Division.

FACTS: Petitioner Douglas R. Cagas was proclaimed the winner for the gubernatorial race for the province of Davao del Sur. Respondent Claude P. Bautista, his rival, filed an electoral protest alleging fraud, anomalies, irregularities, vote-buying and violations of election laws, rules and resolutions. The protest was raffled to the COMELEC First Division. In his affirmative defense, Cagas argued that Bautista did not make the requisite cash deposit on time and that Bautista did not render a detailed specification of the acts or omissions complained of. The COMELEC First Division denied the special affirmative defences. Thus, Cagas prayed that the matter be certified to the COMELEC En Banc. Bautista countered that the assailed orders, being merely interlocutory, could not be elevated to the COMELEC En Banc. The COMELEC First Division issued an order denying Cagas motion for reconsideration, prompting him to file a petition for certiorari before the Supreme Court. ISSUE: Whether or not the Supreme Court has the power to review on certiorari an interlocutory order issued by a Division of the COMELEC HELD: Petition DENIED. Although Section 7, Article IX of the 1987 Constitution confers on the Court the power to review any decision, order or ruling of the COMELEC, it limits such power to a final decision or resolution of the COMELEC en banc, and does not extend to an interlocutory order issued by a Division of the COMELEC. Otherwise stated, the Court has no power to review on certiorari an interlocutory order or even a final resolution issued by a Division of the COMELEC.

There is no question, therefore, that the Court has no jurisdiction to take cognizance of the petition for certiorari assailing the denial by the COMELEC First Division of the special affirmative defenses of the petitioner. The proper remedy is for the petitioner to wait for the COMELEC First Division to first decide the protest on its merits, and if the result should aggrieve him, to appeal the denial of his special affirmative defenses to the COMELEC En Banc along with the other errors committed by the Division upon the merits. It is true that there may be an exception to the general rule, which is when an interlocutory order of a Division of the COMELEC was issued without or in excess of jurisdiction or with grave abuse of discretion, as the Court conceded in Kho v. Commission on Elections. However, the said case has no application herein because the COMELEC First Division had the competence to determine the lack of detailed specifications of the acts or omissions complained of as required by Rule 6, Section 7 of COMELEC Resolution No. 8804, and whether such lack called for the outright dismissal of the protest.

CASTILLO VS CRUZ Leave a comment

Castillo vs Cruz GR 182165 Facts: Respondent Amanda Cruz (Amanda) who, along with her husband Francisco G. Cruz (Spouses Cruz), leased a parcel of land situated at Barrio Guinhawa, Malolos (the property), refused to vacate the property, despite demands by the lessor Provincial Government of Bulacan (the Province) which intended to utilize it for local projects. Several cases were filed by both parties to enforce their rights over the property. The pertinent case among the filed cases was the issuance by the MTC an alias Writ of Demolition in favor of the Province. Respondents filed a motion for TRO in the RTC, which was granted. However, the demolition was already implemented before the TRO issuance. On February 21, 2008, petitioners Police Superintendent Felixberto Castillo et al., who were deployed by the City Mayor in compliance with a memorandum issued by Governor Joselito R. Mendoza instructing him to protect, secure and maintain the possession of the property, entered the property. Amanda and her co-respondents refused to turn over the property, however. Insisting that the RTC Order of Permanent Injunction enjoined the Province from repossessing it, they shoved petitioners, forcing the latter to arrest them and cause their indictment for direct assault, trespassing and other forms of light threats. Thus, respondents filed a Motion for Writ of Amparo and Habeas Data. Issue:

WON Amparo and Habeas Data is proper to property rights; and, WON Amparo and Habeas Data is proper when there is a criminal case already filed. Held: On the 1st issue: Section 1 of the Rules of Writ of Amparo and Habeas Data provides that the coverage of the writs is limited to the protection of rights to life, liberty and security, and the writs cover not only actual but also threats of unlawful acts or omissions. Secretary of National Defense v. Manalo teaches: As the Amparo Rule was intended to address the intractable problem of extralegal killings and enforced disappearances. Tapuz v. Del Rosario also teaches: What it is not is a writ to protect concerns that are purely property or commercial. Neither is it a writ that we shall issue on amorphous and uncertain grounds. To thus be covered by the privilege of the writs, respondents must meet the threshold requirement that their right to life, liberty and security is violated or threatened with an unlawful act or omission. Evidently, the present controversy arose out of a property dispute between the Provincial Government and respondents. Absent any considerable nexus between the acts complained of and its effect on respondents right to life, liberty and security, the Court will not delve on the propriety of petitioners entry into the property. It bears emphasis that respondents petition did not show any actual violation, imminent or continuing threat to their life, liberty and security. Bare allegations of petitioners will not suffice to prove entitlement to the remedy of the writ of amparo. No undue confinement or detention was present. In fact, respondents were even able to post bail for the offenses a day after their arrest. On the 2nd issue: Respondents filing of the petitions for writs of amparo and habeas data should have been barred, for criminal proceedings against them had commenced after they were arrested in flagrante delicto and proceeded against in accordance with Section 6, Rule 112 of the Rules of Court. Validity of the arrest or the proceedings conducted thereafter is a defense that may be set up by respondents during trial and not before a petition for writs of amparo and habeas data. Posted March 30, 2013 by vbdiaz in POLITICAL LAW

CARBONNEL VS CSC Leave a comment

Carbonnel vs Civil Service Commission G.R. No. 187689, September 07, 2010 Facts: On May 21, 1999, petitioner went to the CSCRO IV to secure a copy of the result of the Computer Assisted Test (CATS) Career Service Professional Examination given on March 14, 1999, because she lost the original copy of her Career Service Professional

Certificate of Rating (hereafter referred to as certificate of rating). Petitioner was directed to accomplish a verification slip. The Examination Placement and Service Division noticed that petitioners personal and physical appearance was entirely different from the picture of the examinee attached to the application form and the picture seat plan. It was also discovered that the signature affixed on the application form was different from that appearing on the verification slip. Because of these discrepancies, the Legal Affairs Division of the CSCRO IV conducted an investigation. In the course of the investigation, petitioner voluntarily made a statement before Atty. Rosalinda S.M. Gepigon, admitting that, sometime in March 1999, she accepted the proposal of a certain Bettina J. Navarro (Navarro) for the latter to obtain for petitioner a Career Service Professional Eligibility by merely accomplishing an application form and paying the amount of P10,000.00. Petitioner thus accomplished an application form to take the CATS Career Service Professional Examination and gave Navarro P5,000.00 as down payment. Upon receipt of the original copy of the certificate of rating from Navarro, petitioner gave the latter the remaining P5,000.00. Petitioner, however, misplaced the certificate of rating. This prompted her to secure another copy from the CSCRO IV. Hence, the formal charge against petitioner. Denying her admissions in her voluntary statement before the CSCRO IV, petitioner, in her Answer, traversed the charges against her. She explained that after filling up the application form for the civil service examination, she asked Navarro to submit the same to the CSC. She, however, admitted that she failed to take the examination as she had to attend to her ailing mother. Thus, when she received a certificate of eligibility despite her failure to take the test, she was anxious to know the mystery behind it. She claimed that she went to the CSCRO IV not to get a copy of the certificate of rating but to check the veracity of the certificate. More importantly, she questioned the use of her voluntary statement as the basis of the formal charge against her inasmuch as the same was made without the assistance of counsel. After the formal investigation, the CSCRO IV rendered its March 25, 2002 Decision No. 020079 finding petitioner guilty of dishonesty, grave misconduct, and falsification of official documents. The penalty of dismissal from the service, with all its accessory penalties, was imposed on her. Petitioners motion for reconsideration was denied by CSCRO IV on November 14, 2003. Petitioner appealed, but the CSC dismissed the same for having been filed almost three years from receipt of the CSCRO IV decision. The CSC did not give credence to petitioners explanation that she failed to timely appeal the case because of the death of her counsel. The CSC opined that notwithstanding the death of one lawyer, the other members of the law firm, petitioners counsel of record, could have timely appealed the decision. Petitioners motion for reconsideration was denied in Resolution No. 072049 dated November 5, 2007. Unsatisfied, petitioner elevated the matter to the CA. On November 24, 2008, the CA rendered the assailed decision affirming the decisions and resolutions of the CSCRO IV and the CSC. Petitioners motion for reconsideration was denied by the CA on April 29, 2009. Hence, the instant petition based on the following grounds: Issue: Serious error of fact and law amounting to grave abuse of discretion was committed by the Court of Appeals in its assailed decision dated November 24, 2008 because petitioners

finding of guilt was grounded entirely on her unsworn statement that she admitted the offenses charged and without the assistance of a counsel. Ruling: The petition is without merit. Petitioner faults the CSCs finding because it was based solely on her uncounselled admission taken during the investigation by the CSCRO IV. She claims that her right to due process was violated because she was not afforded the right to counsel when her statement was taken. It is true that the CSCRO IV, the CSC, and the CA gave credence to petitioners uncounselled statements and, partly on the basis thereof, uniformly found petitioner liable for the charge of dishonesty, grave misconduct, and falsification of official document. However, it must be remembered that the right to counsel under Section 12 of the Bill of Rights is meant to protect a suspect during custodial investigation. Thus, the exclusionary rule under paragraph (2), Section 12 of the Bill of Rights applies only to admissions made in a criminal investigation but not to those made in an administrative investigation. While investigations conducted by an administrative body may at times be akin to a criminal proceeding, 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 and of petitioners capacity to represent herself, and no duty rests on such body to furnish the person being investigated with counsel. The right to counsel is not always imperative in administrative investigations because such inquiries are conducted merely to determine whether there are facts that merit the imposition of disciplinary measures against erring public officers and employees, with the purpose of maintaining the dignity of government service. As such, the admissions made by petitioner during the investigation may be used as evidence to justify her dismissal. We have carefully scrutinized the records of the case below and we find no compelling reason to deviate from the findings of the CSC and the CA. The written admission of petitioner is replete with details that could have been known only to her. Besides, petitioners written statement was not the only basis of her dismissal from the service. Records show that the CSCRO IVs conclusion was reached after consideration of all the documentary and testimonial evidence submitted by the parties during the formal investigation. Posted March 30, 2013 by vbdiaz in POLITICAL LAW

BEDOL VS COMELEC Leave a comment

LINTANG BEDOL v. COMMISSION ON ELECTIONS, G.R. No. 179830/ December 3, 2009 FACTS: As Chair of the Provincial Board of Canvassers (PBOC) for the province of Maguindanao, the respondent [petitioner] discharged his official functions and was able to ensure the PBOCs performance of its ministerial duty to canvass the Certificates of Canvass coming from the twenty two (22) city and municipalities in the province.

At that time, respondent [petitioner] also was charged with the burdensome and gargantuan duty of being the concurrent Provincial Elections Supervisor for the Province of Shariff Kabunsuan a neighboring province of Maguindanao. Respondent [petitioner] Bedol failed to attend the scheduled canvassing of the Provincial Certificates of Canvass (PCOC) of Maguindanao of which he is the Provincial Election Supervisor which was slated on May 22, 2007. On May 25, 2007, respondent appeared before the Commission, en banc sitting as the National Board of Canvassers (NBOC) for the election of senators to submit the provincial certificate of canvass for Maguindanao, pursuant to his functions as Provincial Elections Supervisor and chair of the PBOC for Maguindanao. Due to certain observations on the provincial certificates of canvass by certain parties, canvassing of the certificate was held in abeyance and respondent was queried on the alleged fraud which attended the conduct of elections in his area. He was already informed of the resetting of the canvassing for May 30, 2007, but failed to appear despite prior knowledge. Respondents [petitioner] contention: Bedol explained before the Task Force during its June 11, 2007 fact finding activity that, while in his custody and possession, the election paraphernalia were stolen sometime on May 29, 2007, or some fifteen (15) days after the elections. This was the first time such an excuse was given by the respondent [petitioner] and no written report was ever filed with the Commission regarding the alleged loss. Due to absences in the next scheduled investigative proceedings and due to failure and refusal to submit a written explanation of his absences, respondent [petitioner] was issued a contempt charge by COMELEC. Petitioner was later arrested by members of the Philippine National Police on the basis of an Order of Arrest issued on June 29, 2007 by the COMELEC after petitioner repeatedly failed to appear during the fact-finding proceedings before Task Force Maguindanao. Petitioner questioned the COMELECs legal basis for issuing the warrant of arrest and its assumption of jurisdiction over the contempt charges. Nevertheless, he was declared in contempt by COMELEC. Petitioner, then, filed a motion for reconsideration which was denied by the COMELEC in the other assailed Resolution dated August 31, 2007. ISSUE: Whether or not the initiation and issuance of contempt order is within the constitutional powers of the COMELEC. RULING: Powers of COMELEC

The COMELEC possesses the power to conduct investigations as an adjunct to its constitutional duty to enforce and administer all election laws, by virtue of the explicit provisions of paragraph 6, Section 2, Article IX of the 1987 Constitution, which reads: Article IX-C, Section 2. xxx (6) xxx; investigate and, where appropriate, prosecute cases of violations of election laws, including acts or omissions constituting election frauds, offenses, and malpractices. The powers and functions of the COMELEC, conferred upon it by the 1987 Constitution and the Omnibus Election Code, may be classified into administrative, quasi-legislative, and quasi-judicial. The quasi-judicial power of the COMELEC embraces the power to resolve controversies arising from the enforcement of election laws, and to be the sole judge of all pre-proclamation controversies; and of all contests relating to the elections, returns, and qualifications. Its quasi-legislative power refers to the issuance of rules and regulations to implement the election laws and to exercise such legislative functions as may expressly be delegated to it by Congress. Its administrative function refers to the enforcement and administration of election laws. In the exercise of such power, the Constitution (Section 6, Article IX-A) and the Omnibus Election Code (Section 52 [c]) authorize the COMELEC to issue rules and regulations to implement the provisions of the 1987 Constitution and the Omnibus Election Code. The quasi-judicial or administrative adjudicatory power is the power to hear and determine questions of fact to which the legislative policy is to apply, and to decide in accordance with the standards laid down by the law itself in enforcing and administering the same law. The exercise of judicial functions may involve the performance of legislative or administrative duties, and the performance of and administrative or ministerial duties, may, in a measure, involve the exercise of judicial functions. It may be said generally that the exercise of judicial functions is to determine what the law is, and what the legal rights of parties are, with respect to a matter in controversy; and whenever an officer is clothed with that authority, and undertakes to determine those questions, he acts judicially. The language of the Omnibus Election Code and the COMELEC Rules of Procedure is broad enough to allow the initiation of indirect contempt proceedings by the COMELEC motu proprio. Furthermore, the above-quoted provision of Section 52(e), Article VII of the Omnibus Election Code explicitly adopts the procedure and penalties provided by the Rules of Court. Findings of guilt of indirect contempt Petitioner was found guilty of contempt on four (4) grounds. First, he repeatedly failed to attend, despite notice of the scheduled[12] canvassing of the Provincial Certificates of Canvass, the hearing of the Task Force Maguindanao; and refused to submit his explanation for such absences, which he had undertaken to submit, in violation of paragraphs (b) and (f) of Section 2, Rule 29 of the COMELEC Rules of Procedure.

Second, he unlawfully assumed custody of accountable election documents, which were lost while in his possession, and consequently failed to deliver the same, in violation of paragraphs (a), (c) and (d) Section 2, Rule 29 of same Rules. Third and fourth, he publicly displayed disrespect for the authority of the COMELEC through the media (interviews on national television channels, and in newspapers and radios) by flaunting an armory of long firearms and side arms in public, and posing for the front page of a national broadsheet, with a shiny pistol tucked in a holster, in violation of paragraphs (a) and (d), Section 2, Rule 29 of same Rules. WHEREFORE, the petition is hereby DISMISSED and the prayer for a Temporary Restraining Order and/or a Writ of Preliminary Injunction is hereby DENIED. No costs. Posted March 30, 2013 by vbdiaz in POLITICAL LAW

BAYAN MUNA VS. ROMULO Leave a comment

Bayan Muna vs Romulo G. R. No. 159618, February 01, 2011 Facts: Petitioner Bayan Muna is a duly registered party-list group established to represent the marginalized sectors of society. Respondent Blas F. Ople, now deceased, was the Secretary of Foreign Affairs during the period material to this case. Respondent Alberto Romulo was impleaded in his capacity as then Executive Secretary. Rome Statute of the International Criminal Court Having a key determinative bearing on this case is the Rome Statute establishing the International Criminal Court (ICC) with the power to exercise its jurisdiction over persons for the most serious crimes of international concern x x x and shall be complementary to the national criminal jurisdictions. The serious crimes adverted to cover those considered grave under international law, such as genocide, crimes against humanity, war crimes, and crimes of aggression. On December 28, 2000, the RP, through Charge dAffaires Enrique A. Manalo, signed the Rome Statute which, by its terms, is subject to ratification, acceptance or approval by the signatory states. As of the filing of the instant petition, only 92 out of the 139 signatory countries appear to have completed the ratification, approval and concurrence process. The Philippines is not among the 92. RP-US Non-Surrender Agreement On May 9, 2003, then Ambassador Francis J. Ricciardone sent US Embassy Note No. 0470 to the Department of Foreign Affairs (DFA) proposing the terms of the non-surrender bilateral agreement (Agreement, hereinafter) between the USA and the RP. Via Exchange of Notes No. BFO-028-037 dated May 13, 2003 (E/N BFO-028-03, hereinafter), the RP, represented by then DFA Secretary Ople, agreed with and accepted the US proposals embodied under the US Embassy Note adverted to and put in effect the

Agreement with the US government. In esse, the Agreement aims to protect what it refers to and defines as persons of the RP and US from frivolous and harassment suits that might be brought against them in international tribunals.8 It is reflective of the increasing pace of the strategic security and defense partnership between the two countries. As of May 2, 2003, similar bilateral agreements have been effected by and between the US and 33 other countries. The Agreement pertinently provides as follows: 1. For purposes of this Agreement, persons are current or former Government officials, employees (including contractors), or military personnel or nationals of one Party. 2. Persons of one Party present in the territory of the other shall not, absent the express consent of the first Party, (a) be surrendered or transferred by any means to any international tribunal for any purpose, unless such tribunal has been established by the UN Security Council, or (b) be surrendered or transferred by any means to any other entity or third country, or expelled to a third country, for the purpose of surrender to or transfer to any international tribunal, unless such tribunal has been established by the UN Security Council. 3. When the [US] extradites, surrenders, or otherwise transfers a person of the Philippines to a third country, the [US] will not agree to the surrender or transfer of that person by the third country to any international tribunal, unless such tribunal has been established by the UN Security Council, absent the express consent of the Government of the Republic of the Philippines [GRP]. 4. When the [GRP] extradites, surrenders, or otherwise transfers a person of the [USA] to a third country, the [GRP] will not agree to the surrender or transfer of that person by the third country to any international tribunal, unless such tribunal has been established by the UN Security Council, absent the express consent of the Government of the [US]. 5. This Agreement shall remain in force until one year after the date on which one party notifies the other of its intent to terminate the Agreement. The provisions of this Agreement shall continue to apply with respect to any act occurring, or any allegation arising, before the effective date of termination. In response to a query of then Solicitor General Alfredo L. Benipayo on the status of the nonsurrender agreement, Ambassador Ricciardone replied in his letter of October 28, 2003 that the exchange of diplomatic notes constituted a legally binding agreement under international law; and that, under US law, the said agreement did not require the advice and consent of the US Senate. In this proceeding, petitioner imputes grave abuse of discretion to respondents in concluding and ratifying the Agreement and prays that it be struck down as unconstitutional, or at least declared as without force and effect. Issue: Whether or not the RP-US NON SURRENDER AGREEMENT is void ab initio for contracting obligations that are either immoral or otherwise at variance with universally recognized principles of international law.

Ruling: The petition is bereft of merit. Validity of the RP-US Non-Surrender Agreement Petitioners initial challenge against the Agreement relates to form, its threshold posture being that E/N BFO-028-03 cannot be a valid medium for concluding the Agreement. Petitioners contentionperhaps taken unaware of certain well-recognized international doctrines, practices, and jargonsis untenable. One of these is the doctrine of incorporation, as expressed in Section 2, Article II of the Constitution, wherein the Philippines adopts the generally accepted principles of international law and international jurisprudence as part of the law of the land and adheres to the policy of peace, cooperation, and amity with all nations. An exchange of notes falls into the category of inter-governmental agreements, which is an internationally accepted form of international agreement. The United Nations Treaty Collections (Treaty Reference Guide) defines the term as follows: An exchange of notes is a record of a routine agreement, that has many similarities with the private law contract. The agreement consists of the exchange of two documents, each of the parties being in the possession of the one signed by the representative of the other. Under the usual procedure, the accepting State repeats the text of the offering State to record its assent. The signatories of the letters may be government Ministers, diplomats or departmental heads. The technique of exchange of notes is frequently resorted to, either because of its speedy procedure, or, sometimes, to avoid the process of legislative approval. In another perspective, the terms exchange of notes and executive agreements have been used interchangeably, exchange of notes being considered a form of executive agreement that becomes binding through executive action. On the other hand, executive agreements concluded by the President sometimes take the form of exchange of notes and at other times that of more formal documents denominated agreements or protocols. As former US High Commissioner to the Philippines Francis B. Sayre observed in his work, The Constitutionality of Trade Agreement Acts: The point where ordinary correspondence between this and other governments ends and agreements whether denominated executive agreements or exchange of notes or otherwise begin, may sometimes be difficult of ready ascertainment. x x x It is fairly clear from the foregoing disquisition that E/N BFO-028-03be it viewed as the Non-Surrender Agreement itself, or as an integral instrument of acceptance thereof or as consent to be boundis a recognized mode of concluding a legally binding international written contract among nations. Agreement Not Immoral/Not at Variance with Principles of International Law Petitioner urges that the Agreement be struck down as void ab initio for imposing immoral obligations and/or being at variance with allegedly universally recognized principles of international law. The immoral aspect proceeds from the fact that the Agreement, as petitioner would put it, leaves criminals immune from responsibility for unimaginable atrocities that deeply shock the conscience of humanity; x x x it precludes our country from delivering an American criminal to the [ICC] x x x.63

The above argument is a kind of recycling of petitioners earlier position, which, as already discussed, contends that the RP, by entering into the Agreement, virtually abdicated its sovereignty and in the process undermined its treaty obligations under the Rome Statute, contrary to international law principles. The Court is not persuaded. Suffice it to state in this regard that the non-surrender agreement, as aptly described by the Solicitor General, is an assertion by the Philippines of its desire to try and punish crimes under its national law. x x x The agreement is a recognition of the primacy and competence of the countrys judiciary to try offenses under its national criminal laws and dispense justice fairly and judiciously. Petitioner, we believe, labors under the erroneous impression that the Agreement would allow Filipinos and Americans committing high crimes of international concern to escape criminal trial and punishment. This is manifestly incorrect. Persons who may have committed acts penalized under the Rome Statute can be prosecuted and punished in the Philippines or in the US; or with the consent of the RP or the US, before the ICC, assuming, for the nonce, that all the formalities necessary to bind both countries to the Rome Statute have been met. For perspective, what the Agreement contextually prohibits is the surrender by either party of individuals to international tribunals, like the ICC, without the consent of the other party, which may desire to prosecute the crime under its existing laws. With the view we take of things, there is nothing immoral or violative of international law concepts in the act of the Philippines of assuming criminal jurisdiction pursuant to the non-surrender agreement over an offense considered criminal by both Philippine laws and the Rome Statute. Posted March 30, 2013 by vbdiaz in POLITICAL LAW

BALAO VS GMA Leave a comment

BALAO et al vs. GMA G.R. No. 186050 December 13, 2011 FACTS: The siblings of James Balao, and Longid (petitioners), filed with the RTC of La Trinidad, Benguet a Petition for the Issuance of a Writ of Amparo in favor of James Balao who was abducted by unidentified armed men earlier. Named respondents in the petition were then President GMA, Exec Sec Eduardo Ermita, Defense Sec Gilberto Teodoro, Jr., ILG Secretary Ronaldo Puno, National Security Adviser (NSA) Norberto Gonzales, AFP Chief of Staff Gen. Alexander . Yano, PNP Police Director General Jesus Verzosa, among others. James M. Balao is a Psychology and Economics graduate of the UP-Baguio. In 1984, he was among those who founded the Cordillera Peoples Alliance (CPA), a coalition of NGOs working for the cause of indigenous peoples in the Cordillera Region. According to witnesses testimony, James was abducted by unidentified men, saying they were policemen and were arresting him for a drugs case and then made to ride a white van. petitioners prayed for the issuance of a writ of amparo and likewise prayed for (1) an inspection order for the inspection of at least 11 military and police facilities which have been previously reported as detention centers for activists abducted by military and police

operatives; (2) a production order for all documents that contain evidence relevant to the petition, particularly the Order of Battle List and any record or dossier respondents have on James; and (3) a witness protection order. the RTC issued the assailed judgment, disposing as follows: ISSUE a Writ of Amparo Ordering the respondents to (a) disclose where James is detained or confined, (b) to release James considering his unlawful detention since his abduction and (c) to cease and desist from further inflicting harm upon his person; and DENY the issuance of INSPECTION ORDER, PRODUCTION ORDER and WITNESS PROTECTION ORDER for failure of herein Petitioners to comply with the stringent provisions on the Rule on the Writ of Amparo and substantiate the same ISSUE: WON the totality of evidence satisfies the degree of proof required by the Amparo Rule to establish an enforced disappearance. HELD: NO; The Rule on the Writ of Amparo was promulgated on October 24, 2007 amidst rising incidence of extralegal killings and enforced disappearances. It was formulated in the exercise of this Courts expanded rule-making power for the protection and enforcement of constitutional rights enshrined in the 1987 Constitution, albeit limited to these two situations. Extralegal killings refer to killings committed without due process of law, i.e., without legal safeguards or judicial proceedings. On the other hand, enforced disappearances are attended by the following characteristics: an arrest, detention, or abduction of a person by a government official or organized groups or private individuals acting with the direct or indirect acquiescence of the government; the refusal of the State to disclose the fate or whereabouts of the person concerned or a refusal to acknowledge the deprivation of liberty which places such person outside the protection of law. ** The trial court gave considerable weight to the discussion in the petition of briefing papers supposedly obtained from the AFP indicating that the anti-insurgency campaign of the military under the administration of President Arroyo included targeting of identified legal organizations under the NDF, which included the CPA, and their members, as enemies of the state. We hold that such documented practice of targeting activists in the militarys counterinsurgency program by itself does not fulfill the evidentiary standard provided in the Amparo Rule to establish an enforced disappearance. In the case of Roxas v. Macapagal-Arroyo, the Court noted that the similarity between the circumstances attending a particular case of abduction with those surrounding previous instances of enforced disappearances does not, necessarily, carry sufficient weight to prove that the government orchestrated such abduction. Accordingly, the trial court in this case cannot simply infer government involvement in the abduction of James from past similar incidents in which the victims also worked or affiliated with the CPA and other left-leaning groups. ** The petition further premised government complicity in the abduction of James on the very

positions held by the respondents. The Court in Rubrico v. Macapagal-Arroyo had the occasion to expound on the doctrine of command responsibility and why it has little bearing, if at all, in amparo proceedings. It may plausibly be contended that command responsibility, as legal basis to hold military/police commanders liable for extra-legal killings, enforced disappearances, or threats, may be made applicable to this jurisdiction on the theory that the command responsibility doctrine now constitutes a principle of international law or customary international law in accordance with the incorporation clause of the Constitution. Still, it would be inappropriate to apply to these proceedings the doctrine of command responsibility, as the CA seemed to have done, as a form of criminal complicity through omission, for individual respondents criminal liability, if there be any, is beyond the reach of amparo. In other words, the Court does not rule in such proceedings on any issue of criminal culpability, even if incidentally a crime or an infraction of an administrative rule may have been committed. As the Court stressed in Secretary of National Defense v. Manalo (Manalo), the writ of amparo was conceived to provide expeditious and effective procedural relief against violations or threats of violation of the basic rights to life, liberty, and security of persons; the corresponding amparo suit, however, is not an action to determine criminal guilt requiring proof beyond reasonable doubt x x x or administrative liability requiring substantial evidence that will require full and exhaustive proceedings. Of the same tenor, and by way of expounding on the nature and role of amparo, is what the Court said in Razon v. Tagitis: It does not determine guilt nor pinpoint criminal culpability for the disappearance [threats thereof or extrajudicial killings]; it determines responsibility, or at least accountability, for the enforced disappearance [threats thereof or extrajudicial killings] for purposes of imposing the appropriate remedies to address the disappearance [or extrajudicial killings]. xxxx As the law now stands, extrajudicial killings and enforced disappearances in this jurisdiction are not crimes penalized separately from the component criminal acts undertaken to carry out these killings and enforced disappearances and are now penalized under the Revised Penal Code and special laws. The simple reason is that the Legislature has not spoken on the matter; the determination of what acts are criminal x x x are matters of substantive law that only the Legislature has the power to enact. x x x[ Assessing the evidence on record, we find that the participation in any manner of military and police authorities in the abduction of James has not been adequately proven. The identities of the abductors have not been established, much less their link to any military or police unit. There is likewise no concrete evidence indicating that James is being held or detained upon orders of or with acquiescence of government agents. Consequently, the trial court erred in granting amparo reliefs. Such pronouncement of responsibility on the part of public respondents cannot be made given the insufficiency of evidence. However, we agree with the trial court in finding that the actions taken by respondent officials are very limited, superficial and one-sided. Its candid and forthright observations on the efforts exerted by the respondents are borne by the evidence on record. ** An inspection order is an interim relief designed to give support or strengthen the claim of a petitioner in an amparo petition, in order to aid the court before making a decision. A basic requirement before an amparo court may grant an inspection order is that the place to be

inspected is reasonably determinable from the allegations of the party seeking the order. In this case, the issuance of inspection order was properly denied since the petitioners specified several military and police establishments based merely on the allegation that the testimonies of victims and witnesses in previous incidents of similar abductions involving activists disclosed that those premises were used as detention centers. In the same vein, the prayer for issuance of a production order was predicated on petitioners bare allegation that it obtained confidential information from an unidentified military source, that the name of James was included in the so-called Order of Battle. Indeed, the trial court could not have sanctioned any fishing expedition by precipitate issuance of inspection and production orders on the basis of insufficient claims of one party. Posted March 30, 2013 by vbdiaz in POLITICAL LAW

IN RE: PETITION FOR HABEAS CORPUS OF CAPT. GARY ALEJANO ET AL Leave a comment
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF CAPT. GARY ALEJANO, PN (MARINES) CAPT. NICANOR FAELDON, PN (MARINES) CAPT. GERARDO GAMBALA, PA LT. SG JAMES LAYUG, PN CAPT. MILO MAESTRECAMPO, PA LT. SG ANTONIO TRILLANES IV, PN HOMOBONO ADAZA, and ROBERTO RAFAEL (ROEL) PULIDO vs. GEN. PEDRO CABUAY, GEN. NARCISO ABAYA, SEC. ANGELO REYES, and SEC. ROILO GOLEZ G.R. No. 160792 August 25, 2005 FACTS: Early morning of 27 July 2003, some 321 armed soldiers, led by the now detained junior officers, entered and took control of the Oakwood Premier Luxury Apartments (Oakwood), an upscale apartment complex, located in the business district of Makati City. The soldiers disarmed the security officers of Oakwood and planted explosive devices in its immediate surroundings. The junior officers publicly renounced their support for the administration and called for the resignation of President Gloria Macapagal-Arroyo and several cabinet members. Around 7:00 p.m. of the same date, the soldiers voluntarily surrendered to the authorities after several negotiations with government emissaries. The soldiers later defused the explosive devices they had earlier planted. The soldiers then returned to their barracks. On 31 July 2003, Gen. Abaya, as the Chief of Staff of the AFP, issued a directive to all the Major Service Commanders to turn over custody of ten junior officers to the ISAFP Detention Center. The transfer took place while military and civilian authorities were investigating the soldiers involvement in the Oakwood incident. On 1 August 2003, government prosecutors filed an Information for coup detat with the Regional Trial Court of Makati City, Branch 61, against the soldiers involved in the 27 July 2003 Oakwood incident. The government prosecutors accused the soldiers of coup detat as defined and penalized under Article 134-A of the Revised Penal Code of the Philippines, as amended. The case was docketed as Criminal Case No. 03-2784. The trial court later issued the Commitment Orders giving custody of junior officers Lt. SG Antonio Trillanes IV (Trillanes) and Capt. Gerardo Gambala to the Commanding Officers of ISAFP. On 2

August 2003, Gen. Abaya issued a directive to all Major Service Commanders to take into custody the military personnel under their command who took part in the Oakwood incident except the detained junior officers who were to remain under the custody of ISAFP. Petitioners filed a petition for Habeas Corpus before the CA, however the same was denied. The Court of Appeals found the petition bereft of merit. The appellate court pointed out that the detainees are already charged of coup detat before the Regional Trial Court of Makati. Habeas corpus is unavailing in this case as the detainees confinement is under a valid indictment, the legality of which the detainees and petitioners do not even question. ISSUE: WON the denial of the petition for Habeas Corpus was valid HELD: YES For obvious reasons, the duty to hear the petition for habeas corpus necessarily includes the determination of the propriety of the remedy. If a court finds the alleged cause of the detention unlawful, then it should issue the writ and release the detainees. In the present case, after hearing the case, the Court of Appeals found that habeas corpus is inapplicable. After actively participating in the hearing before the Court of Appeals, petitioners are estopped from claiming that the appellate court had no jurisdiction to inquire into the merits of their petition. The Court of Appeals correctly ruled that the remedy of habeas corpus is not the proper remedy to address the detainees complaint against the regulations and conditions in the ISAFP Detention Center. The remedy of habeas corpus has one objective: to inquire into the cause of detention of a person. The purpose of the writ is to determine whether a person is being illegally deprived of his liberty.If the inquiry reveals that the detention is illegal, the court orders the release of the person. If, however, the detention is proven lawful, then the habeas corpus proceedings terminate. The use of habeas corpus is thus very limited. It is not a writ of error. Neither can it substitute for an appeal. A mere allegation of a violation of ones constitutional right is not sufficient. The courts will extend the scope of the writ only if any of the following circumstances is present: (a) there is a deprivation of a constitutional right resulting in the unlawful restraint of a person; (b) the court had no jurisdiction to impose the sentence; or (c) an excessive penalty is imposed and such sentence is void as to the excess. AS TO DENIAL OF RIGHT TO COUNSEL: The scheduled visiting hours provide reasonable access to the detainees, giving petitioners sufficient time to confer with the detainees. The detainees right to counsel is not undermined by the scheduled visits. Even in the hearings before the Senate and the Feliciano Commission, petitioners were given time to confer with the detainees, a fact that petitioners themselves admit.23 Thus, at no point were the detainees denied their right to counsel. AS TO INHUMANE PUNISHMENT: The boarding of the iron grills is for the furtherance of security within the ISAFP Detention Center. This measure intends to fortify the individual cells and to prevent the detainees from passing on contraband and weapons from one cell to another. The boarded grills ensure security and prevent disorder and crime within the facility.

The diminished illumination and ventilation are but discomforts inherent in the fact of detention, and do not constitute punishments on the detainees. The limitation on the detainees physical contacts with visitors is a reasonable, non-punitive response to valid security concerns. AS TO RIGHT TO PRIVACY OF COMMUNICATION: 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. Posted March 30, 2013 by vbdiaz in POLITICAL LAW

PP VS NG Leave a comment
PEOPLE OF THE PHILIPPINES vs. NG YIK BUN, KWOK WAI CHENG, CHANG CHAUN SHI, CHUA SHILOU HWAN, KAN SHUN MIN, and RAYMOND S. TAN January 10, 2011; G.R. No. 180452 FACTS: On August 24, 2000, around 9pm, Capt. Danilo Ibon of Task Force Aduana received information from an operative that there was an ongoing shipment of contraband in Barangay Bignay II, Sariaya, Quezon Province. Upon instructions from his superior, Major Carlo Magno Tabo, Capt. Ibon formed a team in coordination with a PNP detachment, and, along with the operative, the team then proceeded to Villa Vicenta Resort in Barangay Bignay II, Sariaya. The members of the team were able to observe the goings-on at the resort from a distance of around 50 meters. They spotted six Chinese-looking men loading bags containing a white substance into a white van. Having been noticed, Capt. Ibon identified his team and asked accused-appellant Chua Shilou Hwan (Hwan) what they were loading on the van. Hwan replied that it was shabu and pointed to accused-appellant Raymond Tan as the leader. A total of 172 bags of suspected shabu were then confiscated. A laboratory report prepared later by Police Inspector Mary Jean Geronimo on samples of the 172 confiscated bags showed the white substance to be shabu. On January 10, 2001, an Amended Information for violation of Sec. 16, Article III of RA 6425 was filed against accused-appellants, who entered a plea of not guilty upon rearraignment.

RTC convicted accused-appellants of the crime charged. In questioning the RTC Decision before the CA, accused-appellants alleged that the trial court erred when it held as valid the warrantless search, seizure and subsequent arrest of the accused-appellants despite the nonconcurrence of the requisite circumstances that justify a warrantless arrest. CA affirmed decision of RTC. Hence this appeal to the SC. Accused-appellants claim that no valid in flagrante delicto arrest was made prior to the seizure and that the police officers placed accused-appellants under arrest even when there was no evidence that an offense was being committed. Since there was no warrant of arrest, they argue that the search sans a search warrant subsequently made on them was illegal. They contend that a seizure of any evidence as a result of an illegal search is inadmissible in any proceeding for any purpose. ISSUE: Whether there was a valid warrantless search. RULING: YES. Art. III, SEC. 2 of the Constitution provides that 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. A settled exception to the right guaranteed in the aforequoted provision is that of an arrest made during the commission of a crime, which does not require a warrant. Such warrantless arrest is considered reasonable and valid under Rule 113, Sec. 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;XX The foregoing proviso refers to arrest in flagrante delicto. In the instant case, contrary to accused-appellants contention, there was indeed a valid warrantless arrest in flagrante delicto. Consider the circumstances immediately prior to and surrounding the arrest of accusedappellants: (1) the police officers received information from an operative about an ongoing shipment of contraband; (2) the police officers, with the operative, proceeded to Villa Vicenta Resort in Barangay Bignay II, Sariaya, Quezon; (3) they observed the goings-on at the resort from a distance of around 50 meters; and (4) they spotted the six accused-appellants loading transparent bags containing a white substance into a white L-300 van. The arresting police officers had probable cause to suspect that accused-appellants were loading and transporting contraband, more so when Hwan, upon being accosted, readily mentioned that they were loading shabu and pointed to Tan as their leader. Thus, the arrest of accused-appellantswho were caught in flagrante delicto of possessing, and in the act of loading into a white L-300 van, shabu, a prohibited drug under RA 6425 is valid.

In People v. Alunday, we held that when a police officer sees the offense, although at a distance, or hears the disturbances created thereby, and proceeds at once to the scene, he may effect an arrest without a warrant on the basis of Sec. 5(a), Rule 113 of the Rules of Court, as the offense is deemed committed in his presence or within his view. In the instant case, it can be argued that accused-appellants were committing the offense of possessing shabu and were in the act of loading them in a white van when the police officers arrested them. As aptly noted by the appellate court, the crime was committed in the presence of the police officers with the contraband, inside transparent plastic containers, in plain view and duly observed by the arresting officers. The Court also notes that accused-appellants are deemed to have waived their objections to their arrest for not raising the issue before entering their plea. Moreover, present in the instant case are all the elements of illegal possession of drugs: (1) the accused is in possession of an item or object which is identified to be a prohibited drug; (2) such possession is not authorized by law; and (3) the accused freely and consciously possesses the said drug. Accused-appellants were positively identified in court as the individuals caught loading and possessing illegal drugs. They were found to be in possession of prohibited drugs without proof that they were duly authorized by law to possess them. Having been caught in flagrante delicto, there is, therefore, a prima facie evidence of animus possidendi on the part of accused-appellants. There is, thus, no merit to the argument of the defense that a warrant was needed to arrest accused-appellants. Accused-appellants were not able to show that there was any truth to their allegation of a frame-up in rebutting the testimonies of the prosecution witnesses. They relied on mere denials, in contrast with the testimony of Capt. Ibon, who testified that he and his team saw accused-appellants loading plastic bags with a white crystalline substance into an L-300 van at the Villa Vicenta Resort. Accused-appellants, except for Tan, claimed that they were ordered by the police officers to act like they were loading bags onto the van. Accusedappellant Tan told a different tale and claims he was arrested inside a restaurant. But as the trial court found, the persons who could have corroborated their version of events were not presented in court. The only witness presented by Tan, a tricycle driver whose testimony corroborated Tans alone, was not found by the trial court to be credible. As no ill motive can be imputed to the prosecutions witnesses, we uphold the presumption of regularity in the performance of official duties and affirm the trial courts finding that the police officers testimonies are deserving of full faith and credit. Appellate courts generally will not disturb the trial courts assessment of a witness credibility unless certain material facts and circumstances have been overlooked or arbitrarily disregarded. WHEREFORE, the appeal is DENIED. Posted March 30, 2013 by vbdiaz in POLITICAL LAW

POLLO VS DAVID Leave a comment

Pollo vs David G. R. No. 181881, October 18, 2011

Facts: Petitioner is a former Supervising Personnel Specialist of the CSC Regional Office No. IV and also the Officer-in-Charge of the Public Assistance and Liaison Division (PALD) under the Mamamayan Muna Hindi Mamaya Na program of the CSC. On January 3. 2007, CSC Chairperson Karina Constantino-David received an unsigned complaint letter which was marked Confidential and was sent through a courier service (LBC) from certain Allan San Pascual of Bagong Silang, Caloocan City. The letter contain allegations that the petitioner have been helping many who have pending cases in the CSC and the letter sender pleas that the CSC should investigate this anomaly to maintain the clean and good behaviour of their office. Chairperson David immediately formed a team of four personnel with background in information technology (IT), and issued a memo directing them to conduct an investigation and specifically to back up all the files in the computers found in the Mamamayan Muna (PALD) and Legal divisions. After some briefing, the team proceeded at once to the CSC-ROIV office at Panay Avenue, Quezon City. The backing-up of all files in the hard disk of computers at the PALD and Legal Services Division (LSD) was witnessed by several employees, together with Directors Castillo and Unite who closely monitored said activity. At around 6:00 p.m., Director Unite sent text messages to petitioner and the head of LSD, who were both out of the office at the time, informing them of the ongoing copying of computer files in their divisions upon orders of the CSC Chair. Issue: Legality of the search conducted in the petitioners office computer and the copying of his personal files without his knowledge and consent, alleged as a transgression of his constitutional right to privacy. Ruling: Yes. In sum, we conclude that the special needs, beyond the normal need for law enforcement make theprobable-cause requirement impracticable, x x x for legitimate, work-related noninvestigatory intrusions as well as investigations of work-related misconduct. A standard of reasonableness will neither unduly burden the efforts of government employers to ensure the efficient and proper operation of the workplace, nor authorize arbitrary intrusions upon the privacy of public employees. We hold, therefore, that public employer intrusions on the constitutionally protected privacy interests of government employees for noninvestigatory, work-related purposes, as well as for investigations of work-related misconduct, should be judged by the standard of reasonableness under all the circumstances. Under this reasonableness standard, both the inception and the scope of the intrusion must be reasonable: Determining the reasonableness of any search involves a twofold inquiry: first, one must consider whether theaction was justified at its inception, x x x ; second, one must determine whether the search as actually conducted was reasonably related in scope to the circumstances which justified the interference in the first place, x x x Ordinarily, a search of an employees office by a supervisor will be justified at its inception when there are reasonable grounds for suspecting that the search will turn up evidence that the employee is guilty of work-related misconduct, or that the search is necessary for a noninvestigatory work-related purpose such as to retrieve a needed file. x x x The search will

be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the nature of the [misconduct]. x x x39 (Citations omitted; emphasis supplied.) Under the facts obtaining, the search conducted on petitioners computer was justified at its inception and scope. We quote with approval the CSCs discussion on the reasonableness of its actions, consistent as it were with the guidelines established by OConnor: Even conceding for a moment that there is no such administrative policy, there is no doubt in the mind of the Commission that the search of Pollos computer has successfully passed the test of reasonableness for warrantless searches in the workplace as enunciated in the abovediscussed American authorities. It bears emphasis that the Commission pursued the search in its capacity as a government employer and that it was undertaken in connection with an investigation involving a work-related misconduct, one of the circumstances exempted from the warrant requirement. At the inception of the search, a complaint was received recounting that a certain division chief in the CSCRO No. IV was lawyering for parties having pending cases with the said regional office or in the Commission. The nature of the imputation was serious, as it was grievously disturbing. If, indeed, a CSC employee was found to be furtively engaged in the practice of lawyering for parties with pending cases before the Commission would be a highly repugnant scenario, then such a case would have shattering repercussions. It would undeniably cast clouds of doubt upon the institutional integrity of the Commission as a quasi-judicial agency, and in the process, render it less effective in fulfilling its mandate as an impartial and objective dispenser of administrative justice. It is settled that a court or an administrative tribunal must not only be actually impartial but must be seen to be so, otherwise the general public would not have any trust and confidence in it. Considering the damaging nature of the accusation, the Commission had to act fast, if only to arrest or limit any possible adverse consequence or fall-out. Thus, on the same date that the complaint was received, a search was forthwith conducted involving the computer resources in the concerned regional office. That it was the computers that were subjected to the search was justified since these furnished the easiest means for an employee to encode and store documents. Indeed, the computers would be a likely starting point in ferreting out incriminating evidence. Concomitantly, the ephemeral nature of computer files, that is, they could easily be destroyed at a click of a button, necessitated drastic and immediate action. Pointedly, to impose the need to comply with the probable cause requirement would invariably defeat the purpose of the wok-related investigation. Worthy to mention, too, is the fact that the Commission effected the warrantless search in an open and transparent manner. Officials and some employees of the regional office, who happened to be in the vicinity, were on hand to observe the process until its completion. In addition, the respondent himself was duly notified, through text messaging, of the search and the concomitant retrieval of files from his computer. All in all, the Commission is convinced that the warrantless search done on computer assigned to Pollo was not, in any way, vitiated with unconstitutionality. It was a reasonable exercise of the managerial prerogative of the Commission as an employer aimed at ensuring its operational effectiveness and efficiency by going after the work-related misfeasance of its employees. Consequently, the evidence derived from the questioned search are deemed admissible.

Petitioners claim of violation of his constitutional right to privacy must necessarily fail. His other argument invoking the privacy of communication and correspondence under Section 3(1), Article III of the 1987 Constitution is also untenable considering the recognition accorded to certain legitimate intrusions into the privacy of employees in the government workplace under the aforecited authorities. Posted March 30, 2013 by vbdiaz in POLITICAL LAW

CHAVEZ VS GONZALES Leave a comment

FRANCISCO CHAVEZ vs. RAUL M. GONZALES, in his capacity as the Secretary of the Department of Justice; and NTC G.R. No. 168338, February 15, 2008 FACTS: Sometime before 6 June 2005, the radio station dzMM aired the Garci Tapes where the parties to the conversation discussed rigging the results of the 2004 elections to favor President Arroyo. On 6 June 2005, Presidential spokesperson Bunye held a press conference in Malacaang Palace, where he played before the presidential press corps two compact disc recordings of conversations between a woman and a man. Bunye identified the woman in both recordings as President Arroyo but claimed that the contents of the second compact disc had been spliced to make it appear that President Arroyo was talking to Garcillano. However, on 9 June 2005, Bunye backtracked and stated that the womans voice in the compact discs was not President Arroyos after all.3 Meanwhile, other individuals went public, claiming possession of the genuine copy of the Garci Tapes. Respondent Gonzalez ordered the NBI to investigate media organizations which aired the Garci Tapes for possible violation of Republic Act No. 4200 or the Anti-Wiretapping Law. On 11 June 2005, the NTC issued a press release warning radio and television stations that airing the Garci Tapes is a cause for the suspension, revocation and/or cancellation of the licenses or authorizations issued to them. On 14 June 2005, NTC officers met with officers of the broadcasters group KBP, to dispel fears of censorship. The NTC and KBP issued a joint press statement expressing commitment to press freedom On 21 June 2005, petitioner Francisco I. Chavez (petitioner), as citizen, filed this petition to nullify the acts, issuances, and orders of the NTC and respondent Gonzalez (respondents) on the following grounds: (1) respondents conduct violated freedom of expression and the right of the people to information on matters of public concern under Section 7, Article III of the Constitution, and (2) the NTC acted ultra vires when it warned radio and television stations against airing the Garci Tapes. ISSUE: The principal issue for resolution is whether the NTC warning embodied in the press release of 11 June 2005 constitutes an impermissible prior restraint on freedom of expression. 1. Standing to File Petition Petitioner has standing to file this petition. When the issue involves freedom of expression, as in the present case, any citizen has the right to bring suit to question the constitutionality of a government action in violation of freedom of expression, whether or not the government action is directed at such citizen. Freedom of expression, being fundamental to the

preservation of a free, open and democratic society, is of transcendental importance that must be defended by every patriotic citizen at the earliest opportunity. 2. Overview of Freedom of Expression, Prior Restraint and Subsequent Punishment Freedom of expression is the foundation of a free, open and democratic society. Freedom of expression is an indispensable condition8 to the exercise of almost all other civil and political rights. Freedom of expression allows citizens to expose and check abuses of public officials. Freedom of expression allows citizens to make informed choices of candidates for public office. Section 4, Article III of the Constitution prohibits the enactment of any law curtailing freedom of expression: No law shall be passed abridging the freedom of speech, of expression, or the press, or the right of the people peaceably to assemble and petition the government for redress of grievances. Thus, the rule is that expression is not subject to any prior restraint or censorship because the Constitution commands that freedom of expression shall not be abridged. Over time, however, courts have carved out narrow and well defined exceptions to this rule out of necessity. The exceptions, when expression may be subject to prior restraint, apply in this jurisdiction to only four categories of expression, namely: pornography, false or misleading advertisement, advocacy of imminent lawless action, and danger to national security. All other expression is not subject to prior restraint. Expression not subject to prior restraint is protected expression or high-value expression. Any content-based prior restraint on protected expression is unconstitutional without exception. A protected expression means what it says it is absolutely protected from censorship. Thus, there can be no prior restraint on public debates on the amendment or repeal of existing laws, on the ratification of treaties, on the imposition of new tax measures, or on proposed amendments to the Constitution. If the prior restraint is not aimed at the message or idea of the expression, it is content-neutral even if it burdens expression. A content-neutral restraint is a restraint which regulates the time, place or manner of the expression in public places without any restraint on the content of the expression. Courts will subject content-neutral restraints to intermediate scrutiny. An example of a content-neutral restraint is a permit specifying the date, time and route of a rally passing through busy public streets. A content-neutral prior restraint on protected expression which does not touch on the content of the expression enjoys the presumption of validity and is thus enforceable subject to appeal to the courts. Expression that may be subject to prior restraint is unprotected expression or low-value expression. By definition, prior restraint on unprotected expression is content-based since the restraint is imposed because of the content itself. In this jurisdiction, there are currently only four categories of unprotected expression that may be subject to prior restraint. This Court

recognized false or misleading advertisement as unprotected expression only in October 2007. Only unprotected expression may be subject to prior restraint. However, any such prior restraint on unprotected expression must hurdle a high barrier. First, such prior restraint is presumed unconstitutional. Second, the government bears a heavy burden of proving the constitutionality of the prior restraint. Prior restraint is a more severe restriction on freedom of expression than subsequent punishment. Although subsequent punishment also deters expression, still the ideas are disseminated to the public. Prior restraint prevents even the dissemination of ideas to the public. While there can be no prior restraint on protected expression, such expression may be subject to subsequent punishment,27 either civilly or criminally. Similarly, if the unprotected expression does not warrant prior restraint, the same expression may still be subject to subsequent punishment, civilly or criminally. Libel falls under this class of unprotected expression. However, if the expression cannot be subject to the lesser restriction of subsequent punishment, logically it cannot also be subject to the more severe restriction of prior restraint. Thus, since profane language or hate speech against a religious minority is not subject to subsequent punishment in this jurisdiction, such expression cannot be subject to prior restraint. If the unprotected expression warrants prior restraint, necessarily the same expression is subject to subsequent punishment. There must be a law punishing criminally the unprotected expression before prior restraint on such expression can be justified. The prevailing test in this jurisdiction to determine the constitutionality of government action imposing prior restraint on three categories of unprotected expression pornography,31 advocacy of imminent lawless action, and danger to national security is the clear and present danger test.32 The expression restrained must present a clear and present danger of bringing about a substantive evil that the State has a right and duty to prevent, and such danger must be grave and imminent. Prior restraint on unprotected expression takes many forms it may be a law, administrative regulation, or impermissible pressures like threats of revoking licenses or withholding of benefits.34 The impermissible pressures need not be embodied in a government agency regulation, but may emanate from policies, advisories or conduct of officials of government agencies. 3. Government Action in the Present Case The government action in the present case is a warning by the NTC that the airing or broadcasting of the Garci Tapes by radio and television stations is a cause for the suspension, revocation and/or cancellation of the licenses or authorizations issued to radio and television stations. The NTC warning, embodied in a press release, relies on two grounds. First, the airing of the Garci Tapes is a continuing violation of the Anti-Wiretapping Law and the conditions of the Provisional Authority and/or Certificate of Authority issued to radio and TV stations. Second, the Garci Tapes have not been authenticated, and subsequent investigation may establish that the tapes contain false information or willful misrepresentation.

The NTC does not claim that the public airing of the Garci Tapes constitutes unprotected expression that may be subject to prior restraint. The NTC does not specify what substantive evil the State seeks to prevent in imposing prior restraint on the airing of the Garci Tapes. The NTC does not claim that the public airing of the Garci Tapes constitutes a clear and present danger of a substantive evil, of grave and imminent character, that the State has a right and duty to prevent. The NTC did not conduct any hearing in reaching its conclusion that the airing of the Garci Tapes constitutes a continuing violation of the Anti-Wiretapping Law. There is also the issue of whether a wireless cellular phone conversation is covered by the Anti-Wiretapping Law. Clearly, the NTC has no factual or legal basis in claiming that the airing of the Garci Tapes constitutes a violation of the Anti-Wiretapping Law. The radio and television stations were not even given an opportunity to be heard by the NTC. The NTC did not observe basic due process as mandated in Ang Tibay v. Court of Industrial Relations. The NTC concedes that the Garci Tapes have not been authenticated as accurate or truthful. The NTC also concedes that only after a prosecution or appropriate investigation can it be established that the Garci Tapes constitute false information and/or willful misrepresentation. Clearly, the NTC admits that it does not even know if the Garci Tapes contain false information or willful misrepresentation. 4. Nature of Prior Restraint in the Present Case The NTC action restraining the airing of the Garci Tapes is a content-based prior restraint because it is directed at the message of the Garci Tapes. The NTCs claim that the Garci Tapes might contain false information and/or willful misrepresentation, and thus should not be publicly aired, is an admission that the restraint is content-based. 5. Nature of Expression in the Present Case The public airing of the Garci Tapes is a protected expression because it does not fall under any of the four existing categories of unprotected expression recognized in this jurisdiction. The airing of the Garci Tapes is essentially a political expression because it exposes that a presidential candidate had allegedly improper conversations with a COMELEC Commissioner right after the close of voting in the last presidential elections. Obviously, the content of the Garci Tapes affects gravely the sanctity of the ballot. Public discussion on the sanctity of the ballot is indisputably a protected expression that cannot be subject to prior restraint. In any event, public discussion on all political issues should always remain uninhibited, robust and wide open. The rule, which recognizes no exception, is that there can be no content-based prior restraint on protected expression. On this ground alone, the NTC press release is unconstitutional. Of course, if the courts determine that the subject matter of a wiretapping, illegal or not, endangers the security of the State, the public airing of the tape becomes unprotected expression that may be subject to prior restraint. However, there is no claim here by respondents that the subject matter of the Garci Tapes involves national security and publicly airing the tapes would endanger the security of the State. The airing of the Garci Tapes does not violate the right to privacy because the content of the Garci Tapes is a matter of important public concern. The Constitution guarantees the peoples

right to information on matters of public concern. The remedy of any person aggrieved by the public airing of the Garci Tapes is to file a complaint for violation of the Anti-Wiretapping Law after the commission of the crime. Subsequent punishment, absent a lawful defense, is the remedy available in case of violation of the Anti-Wiretapping Law. While there can be no prior restraint on protected expression, there can be subsequent punishment for protected expression under libel, tort or other laws. In the present case, the NTC action seeks prior restraint on the airing of the Garci Tapes, not punishment of personnel of radio and television stations for actual violation of the Anti-Wiretapping Law. 6. Only the Courts May Impose Content-Based Prior Restraint The NTC has no power to impose content-based prior restraint on expression. The charter of the NTC does not vest NTC with any content-based censorship power over radio and television stations. In the present case, the airing of the Garci Tapes is a protected expression that can never be subject to prior restraint. However, even assuming for the sake of argument that the airing of the Garci Tapes constitutes unprotected expression, only the courts have the power to adjudicate on the factual and legal issue of whether the airing of the Garci Tapes presents a clear and present danger of bringing about a substantive evil that the State has a right and duty to prevent, so as to justify the prior restraint. Any order imposing prior restraint on unprotected expression requires prior adjudication by the courts on whether the prior restraint is constitutional. This is a necessary consequence from the presumption of invalidity of any prior restraint on unprotected expression. 7. Government Failed to Overcome Presumption of Invalidity Respondents did not invoke any compelling State interest to impose prior restraint on the public airing of the Garci Tapes. The respondents claim that they merely fairly warned radio and television stations to observe the Anti-Wiretapping Law and pertinent NTC circulars on program standards. Respondents have not explained how and why the observance by radio and television stations of the Anti-Wiretapping Law and pertinent NTC circulars constitutes a compelling State interest justifying prior restraint on the public airing of the Garci Tapes. Violation of the Anti-Wiretapping Law, like the violation of any criminal statute, can always be subject to criminal prosecution after the violation is committed. Respondents have not explained how the violation of the Anti-Wiretapping Law, or of the pertinent NTC circulars, can incite imminent lawless behavior or endanger the security of the State. 8. The NTC Warning is a Classic Form of Prior Restraint The NTC press release threatening to suspend or cancel the airwave permits of radio and television stations constitutes impermissible pressure amounting to prior restraint on protected expression. Whether the threat is made in an order, regulation, advisory or press release, the chilling effect is the same: the threat freezes radio and television stations into deafening silence. Radio and television stations that have invested substantial sums in capital equipment and market development suddenly face suspension or cancellation of their permits. The NTC threat is thus real and potent.

9. Conclusion In sum, the NTC press release constitutes an unconstitutional prior restraint on protected expression. There can be no content-based prior restraint on protected expression. This rule has no exception. Posted March 30, 2013 by vbdiaz in POLITICAL LAW

CITY OF MANILA VS. LAGUIO Leave a comment

CITY OF MANILA, HON. ALFREDO S. LIM as the Mayor of the City of Manila, HON. JOSELITO L. ATIENZA, in his capacity as Vice-Mayor of the City of Manila and Presiding Officer of the City Council of Manila, et.al vs. HON. PERFECTO A.S. LAGUIO, JR., as Presiding Judge, RTC, Manila and MALATE TOURIST DEVELOPMENT CORPORATION G.R. No. 118127, April 12, 2005 FACTS: Private respondent Malate Tourist Development Corporation (MTDC) is a corporation engaged in the business of operating hotels, motels, hostels and lodging houses. It built and opened Victoria Court in Malate which was licensed as a motel although duly accredited with the DOT as a hotel. On 28 June 1993, MTDC filed a Petition for Declaratory Relief with Prayer for a Writ of Preliminary Injunction and/or Temporary Restraining Order7 with the lower court impleading as defendants, herein petitioners City of Manila, Hon. Alfredo S. Lim (Lim), Hon. Joselito L. Atienza, and the members of the City Council of Manila (City Council). MTDC prayed that the Ordinance, insofar as it includes motels and inns as among its prohibited establishments, be declared invalid and unconstitutional. Enacted by the City Council and approved by petitioner City Mayor, the said Ordinance is entitled AN ORDINANCE PROHIBITING THE ESTABLISHMENT OR OPERATION OF BUSINESSES PROVIDING CERTAIN FORMS OF AMUSEMENT, ENTERTAINMENT, SERVICES AND FACILITIES IN THE ERMITA-MALATE AREA, PRESCRIBING PENALTIES FOR VIOLATION THEREOF, AND FOR OTHER PURPOSES. Judge Laguio rendered the assailed Decision (in favour of respondent). On 11 January 1995, petitioners filed the present Petition, alleging that the following errors were committed by the lower court in its ruling: (1) It erred in concluding that the subject ordinance is ultra vires, or otherwise, unfair, unreasonable and oppressive exercise of police power; (2) It erred in holding that the questioned Ordinance contravenes P.D. 499 which allows operators of all kinds of commercial establishments, except those specified therein; and (3) It erred in declaring the Ordinance void and unconstitutional. ISSUE: WON the ordinance is unconstitutional. HELD: The Court is of the opinion, and so holds, that the lower court did not err in declaring the Ordinance, as it did, ultra vires and therefore null and void.

The tests of a valid ordinance are well established. A long line of decisions has held that for an ordinance to be valid, it must not only be within the corporate powers of the local government unit to enact and must be passed according to the procedure prescribed by law, it must also conform to the following substantive requirements: (1) must not contravene the Constitution or any statute; (2) must not be unfair or oppressive; (3) must not be partial or discriminatory; (4) must not prohibit but may regulate trade; (5) must be general and consistent with public policy; and (6) must not be unreasonable. The Ordinance was passed by the City Council in the exercise of its police power, an enactment of the City Council acting as agent of Congress. This delegated police power is found in Section 16 of the LGC, known as the general welfare clause. The inquiry in this Petition is concerned with the validity of the exercise of such delegated power. A. The Ordinance contravenes the Constitution The enactment of the Ordinance was an invalid exercise of delegated power as it is unconstitutional and repugnant to general laws. The police power granted to LGUs must always be exercised with utmost observance of the rights of the people to due process and equal protection of the law. Due process requires the intrinsic validity of the law in interfering with the rights of the person to his life, liberty and property. Requisites for the valid exercise of Police Power are not met 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.60 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 ashall be struck down as an arbitrary intrusion into private rights violation of the due process clause. The object of the Ordinance was, accordingly, the promotion and protection of the social and moral values of the community. Granting for the sake of argument that the objectives of the Ordinance are within the scope of the City Councils police powers, the means employed for the accomplishment thereof were unreasonable and unduly oppressive. The worthy aim of fostering public morals and the eradication of the communitys social ills can be achieved through means less restrictive of private rights; it can be attained by

reasonable restrictions rather than by an absolute prohibition. The closing down and transfer of businesses or their conversion into businesses allowed under the Ordinance have no reasonable relation to the accomplishment of its purposes. Otherwise stated, the prohibition of the enumerated establishments will not per se protect and promote the social and moral welfare of the community; it will not in itself eradicate the alluded social ills of prostitution, adultery, fornication nor will it arrest the spread of sexual disease in Manila. The enumerated establishments are lawful pursuits which are not per se offensive to the moral welfare of the community. While a motel may be used as a venue for immoral sexual activity, it cannot for that reason alone be punished. It cannot be classified as a house of illrepute or as a nuisance per se on a mere likelihood or a naked assumption. If the City of Manila so desires to put an end to prostitution, fornication and other social ills, it can instead impose reasonable regulations such as daily inspections of the establishments for any violation of the conditions of their licenses or permits; it may exercise its authority to suspend or revoke their licenses for these violations; and it may even impose increased license fees. In other words, there are other means to reasonably accomplish the desired end. 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 persons fundamental right to liberty and property. Modality employed is unlawful taking It is an ordinance which permanently restricts the use of property that it can not be used for any reasonable purpose goes beyond regulation and must be recognized as a taking of the property without just compensation.78 It is intrusive and violative of the private property rights of individuals. There are two different types of taking that can be identified. A possessory taking occurs when the government confiscates or physically occupies property. A regulatory taking occurs when the governments regulation leaves no reasonable economically viable use of the property. What is crucial in judicial consideration of regulatory takings is that government regulation is a taking if it leaves no reasonable economically viable use of property in a manner that interferes with reasonable expectations for use. When the owner of real property has been called upon to sacrifice all economically beneficial uses in the name of the common good, that is, to leave his property economically idle, he has suffered a taking. The Ordinance gives the owners and operators of the prohibited establishments three (3) months from its approval within which to wind up business operations or to transfer to any place outside of the Ermita-Malate area or convert said businesses to other kinds of business allowable within the area. The directive to wind up business operations amounts to a closure of the establishment, a permanent deprivation of property, and is practically confiscatory. Unless the owner converts his establishment to accommodate an allowed business, the structure which housed the previous business will be left empty and gathering dust. It is apparent that the Ordinance leaves no reasonable economically viable use of property in a manner that interferes with reasonable expectations for use.

to transfer to any place outside of theThe second and third options areErmita-Malate area or to convert into allowed businesses confiscatory as well. The penalty of permanent closure in cases of subsequent violations found in Section 4 of the Ordinance is also equivalent to a taking of private property. Petitioners cannot take refuge in classifying the measure as a zoning ordinance. A zoning ordinance, although a valid exercise of police power, which limits a wholesome property to a use which can not reasonably be made of it constitutes the taking of such property without just compensation. Private property which is not noxious nor intended for noxious purposes may not, by zoning, be destroyed without compensation. Such principle finds no support in the principles of justice as we know them. The police powers of local government units which have always received broad and liberal interpretation cannot be stretched to cover this particular taking. Further, The Ordinance confers upon the mayor arbitrary and unrestricted power to close down establishments. Ordinances such as this, which make possible abuses in its execution, depending upon no conditions or qualifications whatsoever other than the unregulated arbitrary will of the city authorities as the touchstone by which its validity is to be tested, are unreasonable and invalid. The Ordinance should have established a rule by which its impartial enforcement could be secured. Similarly, the Ordinance does not specify the standards to ascertain which establishments tend to disturb the community, annoy the inhabitants, and adversely affect the social and moral welfare of the community. The cited case supports the nullification of the Ordinance for lack of comprehensible standards to guide the law enforcers in carrying out its provisions. Petitioners cannot therefore order the closure of the enumerated establishments without infringing the due process clause. These lawful establishments may be regulated, but not prevented from carrying on their business. B. The Ordinance violates Equal Protection Clause In the Courts view, there are no substantial distinctions between motels, inns, pension houses, hotels, lodging houses or other similar establishments. By definition, all are commercial establishments providing lodging and usually meals and other services for the public. No reason exists for prohibiting motels and inns but not pension houses, hotels, lodging houses or other similar establishments. The classification in the instant case is invalid as similar subjects are not similarly treated, both as to rights conferred and obligations imposed. It is arbitrary as it does not rest on substantial distinctions bearing a just and fair relation to the purpose of the Ordinance. The Court likewise cannot see the logic for prohibiting the business and operation of motels in the Ermita-Malate area but not outside of this area. A noxious establishment does not become any less noxious if located outside the area. The standard where women are used as tools for entertainment is one of the hinted ills the Ordinancealso discriminatory as prostitution is not a profession exclusive to women. Both men andaims to banish women have an equal propensity to engage in prostitution. Thus, the discrimination is invalid.

C. The Ordinance is repugnant to general laws; it is ultra vires The Ordinance is in contravention of the Code (Sec 458) as the latter merely empowers local government units to regulate, and not prohibit, the establishments enumerated in Section 1 thereof. With respect to cafes, restaurants, beerhouses, hotels, motels, inns, pension houses, lodging houses, and other similar establishments, the only power of the City Council to legislate relative thereto is to regulate them to promote the general welfare. The Code still withholds from cities the power to suppress and prohibit altogether the establishment, operation and maintenance of such establishments. It is well to point out that petitioners also cannot seek cover under the general welfare clause authorizing the abatement of nuisances without judicial proceedings. That tenet applies to a nuisance per se, or one which affects the immediate safety of persons and property and may be summarily abated under the undefined law of necessity. It can not be said that motels are injurious to the rights of property, health or comfort of the community. It is a legitimate business. If it be a nuisance per accidens it may be so proven in a hearing conducted for that purpose. A motel is not per se a nuisance warranting its summary abatement without judicial intervention. Not only does the Ordinance contravene the Code, it likewise runs counter to the provisions of P.D. 499. As correctly argued by MTDC, the statute had already converted the residential Ermita-Malate area into a commercial area. The decree allowed the establishment and operation of all kinds of commercial establishments except warehouse or open storage depot, dump or yard, motor repair shop, gasoline service station, light industry with any machinery or funeral establishment. The rule is that for an ordinance to be valid and to have force and effect, it must not only be within the powers of the council to enact but the same must not be in conflict with or repugnant to the general law. Conclusion All considered, the Ordinance invades fundamental personal and property rights and impairs personal privileges. It is constitutionally infirm. The Ordinance contravenes statutes; it is discriminatory and unreasonable in its operation; it is not sufficiently detailed and explicit that abuses may attend the enforcement of its sanctions. And not to be forgotten, the City Council under the Code had no power to enact the Ordinance and is therefore ultra vires, null and void. Petition Denied.