BILL OF RIGHTS Principles with Regard Bill of Rights: 1. Provisions of Bill of Rights are self- executory 2.

It can only be invoke against the State If you go inside a mall, you cannot invoke your right from search and seizure si nce a mall is a juridical entity and that it is not the state. It also cannot invoke private employment rights,licenses vs a company. In People vs. Espejo : after the commission of the offense, he was interviewed by a media man. He admitted the commission of the offense. Said interview wa s offered in evidence. Is that admissible?YES, because that does not form par t of investigation. The rights accompanying investigation did not arise, simply because it was an interview by the media and not an investigation by a law enf orcement officer.Bill of Rights cannot be invoke against the media man. 3. Human Rights are superior to Property rights If Assumpta enters into a contract that during the duration of her stay in VIVA, she must not get pregnant,such stipulation cannot be had since it violate Assum pta s human rights to procreate as such her right is superior than the property (p rofit) rights of Viva. 4. Provisions have no retroactive application. 2006 notes: procedural due process pertains that procedure should be followed (s o always be guided by the Ang Tibay rules),however, in preventive suspension, no need for due process since it is a penalty. 2006 notes: summary dismissal is not violative of procedural due process as long as evidence is furnished on the complaint and that the person defending must b e given opportunity to answer for the charges. 2006 notes: substantive due process pertains to the law itself if such is a vali d exercise of police power or not(as such its violative of the bill of rights if law is vague). 2006 notes: Gen. Rule: Congress (or the law that it passed or those passed by t he local government units )is not subject to judicial review except upon intrins ic validity of measures; or unless there is violation of the constitutional limi tation under the supremacy of the constitution 2 Tests: 1. Lawful subject - activity/property sought to be regulated affects general. We lfare 2. Lawful means - means reasonably necessary to accomplish desired ends It must have a rational relation between the method and purpose and The means chosen is not unduly oppressive of another s right. Distinctions of Police Power/Eminent Domain & Taxation: 1. Police power affects both liberty and property. Eminent domain and power of taxation affect only liberty 2. Eminent Domain may be exercised by private institutions. Police power and power of taxation, by Congress only. 3. Police power, property taken is destroyed (as they are considered noxious) Eminent domain and power of taxation, taking is for public use (thus, use ful) 4. Eminent domain And power of taxation gives concrete compensation. Police power, only an altruistic feeling POLICE POWER power of promoting general welfare by restraining and regulating the use of libe rty and property most pervasive - affects almost all aspects non-limitable- cannot be limited by a treaty or contract

Ichong VS. Hernandez The petitioner sought to enjoin the enforcement of the Retail Trade Nationalizat ion Law on the ground that it was inconsistent with the Treaty of Amity and the UN charter. SC said it did not violate the treaty because police power cannot be limited eve n by treaty stipulations. * most demanding - regulates liberty and property * dynamic - changes with time, moves along; laws before could not be made applic able to new times. * can be exercised through the use of power of taxation and eminent domain ex. Agrarian Reform Law - get land for welfare of farmers To regulate Tobacco industry - raise taxes to discourage those who can no t afford. Powell vs. Pennsylvania The legislature ascertained that the margarine industry was operating to the pre judice of the consuming public because its products, besides being processed in an unsanitary manner, were being mistaken for butter. Instead of prohibiting margarine outright, it merely imposed an exorbitant tax, making it unprofitable for the industry to continue without incurring loss. Police power is exercised by Congress and also by the President, but can be vali dly delegated: Local Gov t Units - exercise delegated legislative power through immemorial pract ice (knowledge of local tradition) Gen. Welfare Clause and Ordinances - source of authority for the exercise of pol ice power Basis: Salus populi suprema est lex - the welfare of the people is the supreme law Sic utere tuo ut alienum non laedas - so use your own as not to injure others - calls for the subordination of individual benefit to the interest of the gener al number. Judicial Review * extraordinary power of the judiciary to determine abuse of constitutional pro hibition (Constitutional Supremacy) * Gen. Rule: Congress is not subject to judicial review except upon intrinsic v alidity of measures; or unless there is violation of the constitutional limitati on under the supremacy of the constitution 2 Tests: 1. Lawful subject - activity/property sought to be regulated affects general. we lfare 2. Lawful means - means reasonably necessary to accomplish desired ends US vs. Toribio Facts: Respondents were convicted of violating an ordinance which prohibited t he slaughter of carabaos without first acquiring a permit from the municipal tre asurer. The reason for requiring a permit is to protect the carabaos from indis criminate slaughter since they are needed by the farmers in the field, the Phil. being a primarily agricultural country. Issue: Whether or not the ordinance is constitutional or a valid police measur e 2 Tests: Lawful Subject - This test is satisfied since the subject matter (carabao) is b eing protected by the state for their agricultural valuability. If a carabao is not killed, then it can be utilized for farming and benefit will redound to the public. Lawful Means - the means is reasonable because the law only allows the slaugh ter of carabaos that are unfit for farming or breeding. Held: Constitutional.

Ynot vs. IAC Questions the validity of EO requiring permits for interprovincial transfer of c arabao, to regulate indiscriminate slaughter. According to SC: End is justifiable, i.e., to protect farm animals. However, th e means is not reasonable. The permit required will not prevent indiscriminate slaughter; instead, slaughtering should be regulated. The means must pass the test of arbitrariness. POWER OF EMINENT DOMAIN Power of expropriation: forced sale (extraordinary), it is not resorted to if o wner agrees to sell, lease or pay for damages caused 1. Private Property ==> all kinds of private property ==> except money and choice in action - because just compensation comes in the form of money - choice in action is nontransferable ==> real, personal, tangible, intangible ex. franchise - takes over a corporation Church property - even with separation of church and state ==> those already expropriated can still be subjected to expropriation, provided that it is done directly by Congress. However, it does not prohibit the Congre ss to delegate. 2. Taking ==> physical dispossession ==> and also that property is subject to burden (like you should plant only rice and not trees since your land is in the middle of electric lines so that it wou ld not hinder with the wiring of electricity) ==> as such, the moment your property is subjected to any of the 2 modes of taki ng (mentioned above) ,then it constitutes taking . Republic vs. PLDT Issue: The right of the Bureau of Telecommunications to demand interconnection b etween the government telephone system and that of the PLDT, so that the former could make use of the lines and facilities of the PLDT Held: There is valid taking, although the parties cannot be coerced to enter in to a contract, where no agreement has been had between them. But the taking of the power lines is similar to that of taking of property although it is in real ity an imposition of burden upon the company. Either way, private property is s till being subject to a burden for public use or benefit. When Taking is Not Compensable * If the taking is done under the police power and the property is destroyed bec ause it is noxious or for a noxious purpose. * E.g. 1. PLDT diggings for telephone lines: store owners affected - no taking -exercise of police power - the business or land has not been taken - damage without injury (damnum absque injuria) * E.g. 2. A building on the verge of collapse may be ordered demolished in the i nterest of public safety, the owner will not be entitled to payment of just comp ensation. * E.g. 3 A railroad company is allowed to operate along a street, resulting in the depreciation of the properties alongside it because of smoke, soot, gases, noise * In all these cases, police power is exercised to improve general welfare. Los ses sustained are merely incidental. Compensation is only the altruistic feelin g.

People vs. Fajardo A municipal ordinance prohibiting construction of any building that would destro y the view of the plaza from the highway was considered a taking under the power of eminent domain that could not be allowed without payment of just compensatio n to the owner affected. Requirements in taking 1. Expropriator must enter a private property 2. Entry for more than a momentary period 3. Entry under the color or warrant of legal authority 4. Property taken for public use 5. Utilization is to oust owner and deprive him of beneficial enjoyment of his p roperty Note: Read Rule 67 Rules of Court , on expropriation 3. Public Use Generally: ==> any use directly available to the general public as a matter of right ==> it does not matter if the use is for a fee or for free as long as there exis t an indirect advantage or benefit to the public (ex. SIR, Agrarian Reform Law ) 4. Just Compensation Just compensation pertains to CASH , except when it involves CARP, so it can be in form of bonds. Determination is a judicial function. ==> Full and fair equivalent of the property taken ==> Full means real, substantial and ample ; fair means fair to both ==> Measure: not the expropriator s gain but the owner s loss ==> Factors to consider: a) actual price of the property b) fair market value - cost of acquisition, current price, etc. c) consequential damages and consequential benefit - when not the entire property is taken - value of the land after the expropriation ==> prices will be determined at the time of taking ==> if the expropriator fails to pay on time, he is liable for interest (12%) ==> in case of land, the title is transferred only upon full payment of the expr opriation ==> Expropriator can enter the property even if case is pending when: 1.afer filing of complaint (not before) 2.with notice to owner 3.deposit with authorized government depositary an amount equal to the assess va lue for tax purpose. 2006 notes: the landowner cannot demand return of property when the use of such property was change nor can owner recover the property when it is abandoned (exc eption to latter is if such expropriation is subject to condition) 2006 notes: non-payment can only be a ground for recovery if 5 years has elapsed already. 2006 notes: expropriation of local government units should be (1) based on ordinance not a resolution (2) no need to secure DAR clearance even if property is converted to non-agricul tural (3) provincial board cannot disapprove on ground of lack of necessity. Who may exercise: This power is lodged primarily in the Congress, although it can be validly deleg ated to other government entities and in fact even to private corporations:

1. Congress 2. President 3. Local legislative bodies 4. Certain public corporations - Land authority, MWSS 5. Quasi-public corporations serving essential public needs or operating public utilities - ex. Phil. National Railway, PLDT, Meralco Judicial Review: Congress - not subject to judicial review because it is a POLITICAL DETERMINATI ON Others can be reviewed Mun. Corporations - based on law granting such authority Quasi-public Corp. - must file a case of expropriation first before entry and ma de the initial deposit required in Rule 57, Rules of Court DUE PROCESS PROCEDURAL DUE PROCESS A. JUDICIAL SYSTEM 1. Jurisdiction must be lawfully acquired over the person of the defendant or t he property subject matter of the proceeding: before a court litigation can proceed, the court must acquire authority over the parties. Vertido Case Judge Quitain said that the reason why he could not yet rule on the motions file d is that, no jurisdiction has been acquired over the person of the accused. When does the court acquire jurisdiction? Complainant/plaintiff - upon filing of the case, he submits himself to the auth ority of the court Defendant - when he appears personally in court - arrested, in criminal cases - represented by a lawyer and brings defendant in court - service of summons Pacificador Case Pacificador was charged as the principal in the murder of Javier. The case was not tried even though a complaint has been filed because Mr. Pacificador was not arrested nor did he personally appear in court. If no jurisdiction over the person of the accused have been acquired and the cas e proceeded, the decision of the case will not be valid because of the denial of due process. 2. Opportunity to be heard * It is not required that the defendant is actually heard in court. If there is a scheduled trial and he failed to appear, he may be deemed to have waived his right to present evidence. * There would not be denial of due process because he was duly notified. If no notification, then there would be denial of due process. 3. Judgement rendered upon Lawful hearing * Under the Rules of Court, there are certain procedures to be followed * In the presentation of evidence, testimonial evidence will be presented first before documents are presented * Only then after lawful hearing can judgment be rendered based of the evidence presented Art. VIII, Sec. 14 Constitution

A decision must contain clearly and distinctly the facts and the law on which it is based. If the decision does not contain the facts and the law on which it is based, the re would be a denial of due process because the party will not be informed on ho w the decision was arrived at. Procedures in courts, are the same as in civil and criminal cases. 4. There must be an impartial court clothed with judicial power to hear and dete rmine the matter before it. -The court or judge be impartial, not only to appear impartial but must actually be impartial. Rule 13 Rules of Court E.g. compulsory or voluntary disqualification of a judge Judicial authority granted - certain types of court which can hear certain type s of cases. E.g. Civil Litigation P100,000 or less - MTC More than 100,000 - RTC incapable of pecuniary estimation Election for Pres/VP - SC (Presd l. Electoral Tribunal) - judicial power granted to a specific court Sufficiency of the factual basis of Martial Law or Suspension o f Privilege of Writ of Habeas Corpus - SC * If you file a case in the wrong court, no decision would be valid, because jud icial procedural due process has not been complied with * Rules of Court provides that sometimes a judge should not hear a particular ca se tried before him E.g. The lawyer is related to the judge within the 4th civil degree Vertido Case The counsel for Jose V. Custodio filed a motion for inhibition of Judge Quitain on his qualification to rule on certain motions filed for the defense, because according to the defense, they could no longer approximate the impartiality requ ired of the judge under due process. The judge has already prejudged perhaps th e guilt of the accused by issuing the warrant in haste despite the fact that the re is still a motion for reconsideration filed before the Dept. of Justice. * All these rules are to approximate the requirement of neutrality of a court or a judge Due Process Webster - Hears before it condemns, renders judgment only after trial Form: 1. Substantive due process - intrinsic validity of a measure/ act - within the law in itself is valid - ex. Anti-subversion Law 2. Procedural Due Process - refers to the enforcement of law, how judgment was r eached - one is heard before he is condemned B. ADMINISTRATIVE AGENCIES Procedure in Ang Tibay vs. CIR (1940) 7 Cardinal Primary Rights: 1. There must be a hearing 2. The tribunal must consider the evidence presented 3. Decision must be supported by evidence

4. Evidence supporting the decision must be substantial 5. Evidence must have been presented in the hearing or at least known to the par ties and contained in the records. 6. Tribunal must rely on its own independent judgment. 7. Decision must state the facts and the law in such a way that the parties may know the issues involved and reasons for the decision. * All parties will be given opportunity to present their evidence. (Administrati ve tribunals do not follow the Rules of Court) * Substantial Evidence - such amount of evidence, a reasonable mind will hold as sufficient to support a decision * Quantum of Proof Required: Criminal -- proof beyond reasonable doubt Civil -- preponderance of evidence Administrative -- substantial evidence Self defense -- clear and convincing evidence Proof beyond... - moral certainty, not necessarily absolute certainty; if ther e is 1 degree of doubt, have to acquit, because of the constitutional presumptio n of innocence Preponderance - weight and amount of innocence Substantial - hold as sufficient to support a decision Evidence, Record Known Crim. - if the evidence is not presented and admitted in court, chances are, it cannot be appreciated E.g. Affidavit, but the person who executed an affidavit did not testif y his affidavit, this affidavit will not be appreciated Admin. - It is only required that the evidence at least must have been presente d and even if it is not presented, if it is in the record of the case and known to the parties, the evidence may be appreciated. - Reason: does not follow strict rules under the Rules of Court Arroyo vs. HRET The decision was arrived at considering evidence not presented or not kn own to the parties, or not in the records. The HRET ruled in favor of Sijuco by considering evidence not in the record and not presented, only known to the pon ente and not to the parties. He based substantially his decision on these evide nce (photocopied precint-based evidence) because they were all filed out of time . Mr. Arroyo filed a certiorari before the SC where the decision was overruled. But this is one of the cases which will show that administrative tribuna ls may appreciate evidence not presented but at least they must be in the record and known to the parties. So, even if they are in the records but not known to the parties because either they are filed out of time or filed without the knowledge of the other p arty, this would violate due process because how could the other party rebut or submit controverting evidence. Art. VIII Sec. 14 does not apply Ichong vs. Hernandez The decision of the Dept. of Labor merely reiterated the decision of the Regiona l head. It did not contain findings of facts. Q. Does it violate Art. VIII, Sec. 14? A. SC: Art VIII Sec. 14 is only applicable to courts under the judicial departm ent. It does not apply to decisions of administrative agencies. However, it is not correct to say that decisions of administrative tribunals must clearly stat e the facts and the law on which it is based. The reason is that, Sec. 14 Art. VIII is found under the judicial department. The Dept. of Labor is under the ex ecutive, not the judiciary. But it is still not correct to say that it shall no

t state the facts and the law since under the ruling in Ang Tibay, tribunals mus t still state facts and law so that the parties may be informed of the reasons f or the decision, to know assignment of errors in appeal, in order to cite that t here was an error in the ruling. Rationale: The procedures laid down in Ang Tibay must be complied with othe rwise there would be denial of due process and the decision would not be binding . People vs. Nazario Facts: Petitioner here was charged with violation of ordinances which require m anager of fishponds to pay operation tax. He is a lessee of a forest land conve rted to fishpond. He is charged because of nonpayment of tax, he admits that he has not paid but alleges that the ordinances are unconstitutional or that it do es not apply to him. He anchors his allegation on the vagueness of the law. Held: The law is not vague. A law is only vague if it is utterly vague on its fa ce. A vague law violates due process since it will deny people of fair notice o f what conduct to avoid. A statute is only vague if people of common intelligen ce guess as to its meaning or would differ in the application. Ordinance provides: If you re the owner or manager of a fishpond, you pay P3.00 tax. You shoul d be taxed 3 years after approval of the measure SC: Petitioner included in the term manager because even if he is just a lessee, he still invests in it.Even if there is no specific date as to the effectivity o f the tax measure, tax would accrue on a specific time, 3 years after approval i s sure to happen.If the statute is vague, you will not know what it really provi des and would not know what acts to do so that you will not be held liable under the law Utterly vague - cannot be interpreted; no construction rule will apply Estate vs. CA Facts: The property on dispute here is a building owned by Gregoria Francisco. Her husband is using the property for storage of copra. It stands on a lot own ed by the Phil. Ports Authority but the heir to the property was given permit to occupy said lot by PPA for 1 year. Respondent mayor ordered the building demolished before the expi ration of the period citing as authority Zoning Ordinance 147; noting its antiqu ated and dilapidated structure. The owner was notified twice but did not heed. The mayor summarily abated the property by reason that it is a n uisance per se and by reason of the ordinance which according to him is not in t he proper zoning classification. Issue: Whether or not before a building can be abated as a nuisance per se or p er accidens, it can be summarily abated or demolished without hearing. Held: The ordinance provides that if the building is not conforming with the zo ning ordinance or the classification, then it must be relocated. If it cannot b e relocated within 12 months, then it must be removed at the expense of the owne r. Clearly, the ordinance does not give the mayor or municipality the authorit y to demolish it. It does not talk about demolition. Besides, the ordinance pr ovides for personal sanctions, in which case in relation to the Local Govt. Code of 1991, SC said that the mayor should have filed the necessary proceedings in the court to make the person liable. It does not give him power to summarily dem olish it. The mayor contends, however, that the municipality gives him the authority to abate if it is a nuisance per se. A nuisance per se is one which threatens or immediately threatens the life or safety of the general public. In this case, the property is a warehouse used for a legitimate business in a prop erty owned by the PPA which has permitted the heirs to use the land. It is not even a public land. Thus, it does not talk about threats to life or property of the public. It can be classified as a nuisance per accidens, but before it can be classified, there must first be a judicial determination to afford the party

procedural due process. There was denial of due process. respondent municipality was ma de to pay just compensation. Q. What about these recent events in Manila because of APEC? Could they summa rily demolish shanties in the esteros. Is it nuisance per se or nuisance per ac cidens? (Just asking) Nuisance per se can be summarily abated. But then again, it must be such that t here is an immediate threat. Example is a house constructed in the middle of Sa n Pedro. You don/t have to go to court to determine whether or not it is a nui sance per accidens. The mayor can summarily abate it. However, it does not mea n that when there is summary abatement that there is no more need for determinat ion. You will still be notified that if you will not remove , the will remove i t. You will still be notified by the gov t but it will not follow the normal cour t proceedings. C. SCHOOLS DISCIPLINARY TRIBUNALS [Before you can be expelled, there must be satisfaction of procedural due proces s.] 5 Aspects: 1. Student must be informed in writing of the nature and cause of accusation 2. He has the right to answer the accusations against him with the assistance of counsel if he so desires. 3. He has the right to be informed of the evidence against him 4. He has the right to adduce evidence in his favor 5. The evidence must be duly considered in arriving at the decision Explanation: 1. Inform in writing of the charge before penalized - to answer charges 2. In answering charges, may have assistance of counsel although not required. The presence of counsel is only to apprise client of his right, but not to activ ely participate 3. The person charged cannot confront witness against him. He is only informed. He cannot compel tribunal to present witnesses against him so that he can conf ront him. Only examine evidence in order to submit countervailing evidence to d isprove the accusation against him. 4. In consonant with right or opportunity to be heard. Present other witness to disprove. 5. Not necessary to state facts and law. It is only required that evidence pres ented by both parties must be considered. There is no denial of due process if only the complainant is believed. Believing and considering are two different m atters. Montemayor vs. Araneta University Facts: Felix Montemayor, faculty member of Araneta University Foundation, was c harged with immorality (homosexual acts) against a teacher and a student, and co nduct unbecoming of a faculty member. On the first offense, a hearing by a comm ittee was conducted, and as proved, he was demoted. Upon the filing of the seco nd charges, he was temporarily suspended pending the investifation. Hearing was set but he filed a motion to postpone it, which was denied. When the hearing w as conducted, he was not present nor represented. from that hearing came the re commendation of his dismissal. Such was reported to the Sec. of Labor and clear ance was issued. He filed a motion for reinstatement before the Labor Arbiter a nd the NLRC, which was granted. Araneta University filed before the Labor Secre tary to confirm his decision. Granted. Montemayor now files a petition for cer tiorari. Issue: Was he afforded due process (procedural)? Held: YES. The process followed in the first investigation did satisfy the pro cedural due process, but the second did not because it was heard despite his abs

cence. However, such deficiency was remedied by the fact that petitioner was ab le to present his case before the Labor Commission. All the foregoing clearly shows that petitioner was afforded his day in court. Finally, and more significantly, is the fact that he claims denia l of due process in the proceeding had before the investigating committees and n ot in the proceedings before the NLRC wherein, as shown heretofore, he was given the fullest opportunity to present his case . ADM vs. Capulong Issue: Whether or not there was denial of due process? Held 1. They were notified twice (Joint & by the Board) - did not answer, just asked copies of the charge 2. They were informed of the evidence against them -They were present at the hearing. 3. They were afforded the right to answer the charge against them with the assis tance of a counsel. 4. They were given the chance to adduce evidence in their own behalf. 5. Evidence presented considered in arriving at the decision -In both hearings (Board & Committee), yes, but the students refused to answer or submit statements. Obviously, only the evidence presented against the m were considered. But the decision was based on evidence presented. Therefore , there was satisfaction of due process. D. EMPLOYER/COMPANY LEVEL (Labor Code as amended) Procedural Due Process in Private Sector 2 - Notice Rule (Twin Requirement Rule) 1. First Notice a) The employee must be notified in writing of the charge or accusation against him b) The employee must be given ample opportunity to be heard with the assistance of a representative if desired. [union leader, officer, relative, lawyer] 2. Second Notice - the decision of the employer which must be in writing. * If these are followed and the employee is penalized, reprimanded, suspended, o r dismissed, then there is satisfaction of procedural due process. Ex. An employer sends the employee a written notice, charging him for failure to report to work or considered as abandonment. The employer gives him time to explain and the employee will explain that..... The employer decides to dismiss the employee in writing. Q. Is the dismissal valid. Is there ground for dismissal? A. Abandonment is questionable, but if the question is if the procedur al aspect was complied with, the answer is YES. The two-notice rule has been fo llowed. But if the abandonment is real or not, that cannot be resolved in the e mployer level. * Whether or not the ground for the dismissal or penalty is correct, is left to the initial determination/discretion of the employer. However, his decision is subject to the action of the NLRC because the employee may dispute the decision of the employer while in the office. * Other evidence/records other than those signed can be used * Admission by silence - waiver * Documentary evidence is better - it does not change; testimonies change. 1)Wenphil vs. NLRC A sanction, in the form of damages, must be imposed upon the ER for failure to g ive a formal notice and conduct an investigation as required by law before dismi ssing the EE from employment. 2006 notes:WenPhil Doctrine:The Supreme Court uphold that the dismissal of emplo yee must follow the 2 facets of valid termination, however, if employer committe

d an infraction of the 2nd requirement, a sanction must be imposed on the employ er. 2)Serrano (GR 117040, January 27,2000) repeal WenPhil Termination due to authorized cause without giving the notice required under th e Labor Code is not a violation of due process. It is valid although declared ir regular/ineffectual. He shall however be entitled to SEPARATION PAY AND BACKWAGES subject to the foll owing: 1.when dismissal is for a cause, the employee, whether dismissed for just/author ized cause but w/o prior notice is entitled to full backwages from the time he w as terminated until the decision finding cause becomes final. 2.when the dismissal is w/o just/authorized cause, backwages shall be computed f rom the time of his dismissal until his actual reinstatement. 4BLUE 95 notes: Serrano case, although a case of termination for authorized caus e also covers termination due to just cause, if termination is due to just cause s, no separation pay is due. 3)Agabon v NLRC (November 17,2004) modifies Serrano and WenPhil Dismissal for just/authorized w/o procedural due process is not an illegal dismi ssal which warrants backwages entitled only to nominal damages. Court decided to follow WenPhil that where dismissal is for a just cause, the la ck of statutory due process should not nullify the dismissal or render it illega l. However, the employer should indemnify the employee for the violation of his rig hts. The indemnity should be stiffer than that provided in WenPhil to discourage the abhorrent practice of dismiss now,pay later . Indemnity should be in the form of nominal damages which is adjudicated in order that a right of plaintiff which has been violated by the defendant may be vindi cated. Rivera vs. Civil Service Commission Facts: Rivera was a manager of LBP who was charged of grave misconduct because of accepting allowances from clients in lieu of approval to their loans. He wa s found guilty by LBP and was meted the penalty of forced resignation and forfei ture of benefits. Rivera appealed to the Merit Systems Protection Board which r educed the penalty to suspension. Both Rivera and LBP appealed to the Civil Ser vice Commission. He was found guilty and was given the penalty of dismissal fro m service. He now appeals to the SC contending that he was denied due process. Held: There was denial of due process. it came out that one Thelma Gaminde, no w a CSC Commissioner , was the chairman of the MSPB who heard the case at hand. The ruling in the case of Zambales Chromite Mining is applicable: In order that the review of the decision of a subordinate office r might not turn out to be a farce, the reviewing officer must perforce be other than the officer whose decision is under review; otherwise, there could be no d ifference or there would be no real review of the case. The decision of the rev iewing officer would be a biased view; inevitably, it would be the same view sin ce being human, he would not admit that he was mistaken in his first view of the case. In this case, the MSPB found him guilty. Gaminde was chairing i t. It cannot therefore be expected that under the CSC review where Gaminde is now a member, Rivera could be said to be innocent. Gaminde cannot change her st and, human as she is. She already said that Rivera was guilty, she could not cha nge that. She could not admit that she was mistaken. It is different, however, if it is a motion for reconsideration where the court corrects itself in the same court. There is no denial of due pr ocess if the same justices rule on the motion for reconsideration because it is a matter of procedure. It is different if the case is on appeal, because the re

ason why you appealed is that you do not agree with the decision of the lower co urt or subordinate officer. When you appeal, the same person will hear your cas e. You cannot approximate the impartiality of the judge. This is the due proces s consideration. DUE PROCESS IN DEPORTATION CASES Although a deportation proceeding does not partake of the nature of a criminal a ction. considering the gravity of the penalty (deportation: freedom & liberty) t he constitutional right to due process should not be denied. Rules of Court cr iminal procedure should be followed. It means that before the CID require them to register as aliens, there must first be a judicial determination that they ar e indeed aliens. In this case, there was denial of due process because CID requ ired them to register before determination of citizenship. There is still the issue of what to follow , the 1958 or 1980 opinion. The respondents should hav e given them ample opportunity to prove their citizenship. Lao Gi vs. CA Facts: In 1958 there was an opinion of the Dept. of Justice declaring petition er a Filipino since he was the son of a Filipino father. In 1980, the DOJ 1958 Circular was canceled. Meaning, Chua Jr. was no longer considered a Filipino ci tizen. As a result, the Dept. of Immigration filed deportation charges against him and his family since they were aliens. Deportation was then set for hearing , petitioner was then given 3 days to register as alien, otherwise, they will be deported. This decision of DOI was appealed to the CA and is now before the SC . Issue: Whether or not petitioners were afforded due process with regards to dep ortation proceedings. Held: SC said that CID has power to require aliens to register but there must b e proper determination, tat the person being required to register is an alien. Since petitioners citizenship due to DOJ circular are still on question, they mus t be afforded due process. RATE FIXING: Philcomsat vs. Alcuaz Facts: The petitioner seeks to annul an order of NTC directing a provisional r eduction of rates to 15%. This is the result of application of Philcomsat for l icense to operate. Pending hearing, it was granted provisional authority to oper ate. Included however is the reduced rates. This order was issued motu propio without notice and hearing. Issue: Whether or not there was denial of due process. Rate Fixing Legislative rate-fixing * fixing of rate of Phil. companies where rates apply to all operators or to all industries. * no notice and hearing is required, simply because it applies to all utility co mpanies. * ex. fixing of price of gas * If there is a change of oil supply in the world market, there is a need to fix the rate to be charged in the purchase of gas. There will be no need of notice and hearing because it applies to all gasoline (oil) companies. This is based on the reason that such rates are approved only after deliberation or discussio ns. Quasi-judicial Rate Fixing * rate applicable only to a particular utility company * there is a need for notice and hearing * ex. Holiday Taxi applies for rate. There is a need to notify HT and provide for a hearing.

Held: On the case at hand, the order of NTC was handed down without notice and hearing. Bear in mind that what Philcomsat applied for is license to continue to operate. What NTC did was grant a provisional authority to operate with redu ction of 15% on the rates to be charged, even without granting Philcomsat opport unity to dispute reduction. Sec. 16 Public Service Act - Proceedings of Commission upon not ice & hearing: The Commission shall have the power, upon proper notice and heari ng in accordance with the rules of this Act... While respondents may fix a temporary rate pending final determi nation of the application of petitioner, such rate-fixing though temporary is no t exempt from the statutory provisional requirements. RCPI vs. NTC Facts: PLDT applied for approval of rates fro digital transmission service. Th e NTC provisionally approved the application and set a hearing 30 days thereafte r. NTC notified RCPI & Clavecilla except PT&T. PT&T together with PCPI & Clave cilla opposed the application. Issue: Can NTC approve or grant provisional rates without notice to the parties affected? Note: Notice were given only after the provisional rate was approved.

Q. What is the difference between RCPI and Philcomsat? Is this in the exercis e of quasi-judicial or legislative rate-fixing? A. This is a quasi-judicial rate fixing. Only applies to PLDT. Both RCPI and Philcomsat are quasi-judicial rate-fixing. Q. How come in Philcomsat, notice and hearing was required while in RCPI it wa s not? A. Provisional rates can be approved without notice and hearing. In Philcomsat, the reduction of the rates were issued motu propio by NTC . There was no application. The application was for renewal of the franchise a nd yet upon renewing, they reduced the rates. In the case of PLDT, it was PLDT who applied. It was at the instance of PLDT that the rates were approved. So, even if there was no notice or hearing, since it was PLDT which applied for the provisional rate, there is no need for notice and hearing. Note: It is only in legislative rate-fixing can notice and hearing be dispensed with because of the presumption that the fixer has considered all factors. Unli ke in quasi-judicial rate-fixing where notice and hearing is required to give o ther parties chance to dispute. Caution: Although the law allows NTC to approve provisional rates without not ice and hearing, the rates approved must still be reasonable. NTC must also det ermine the reasonableness of the rates applied without the participation of othe r affected parties. SUBSTANTIVE DUE PROCESS (POLICE POWER) Ermita vs. City Mayor Facts: The City of Manila promulgated an ordinance which regulated the operatio n of hotels & motels. The ordinance requires the following: * registration in the lobby should be open to public view * that the mayor can conduct inspection of the establishment anytime * prohibits the renting of the room more than once within 24 hours * minors should be accompanied by parents or adults. Reason: The alarming increase in prostitution/fornication traceable to the hote l/ motel business Held: The ordinance is lawful. * Increase in license fees - to discourage, so that only legitimate motel operat ors will operate.

* 24 hours limit - clandestine meetings are usually shorter than legitimate one s * Police power is the least limitable - regulations necessarily curtails to a c ertain degree the exercise of a right. * To safeguard public morals. Taxicab vs. BOT The Board of Transportation issued a Memorandum Circular to phase out and replac e old and dilapidated taxis. The lawful subject is public welfare through safe and comfortable public conveya nces. The lawful method is to phase out old taxis (6 years) and to withdraw 1971 model s after 6 years. Procedural and Substantive Due Process * Presidential Decree 101 grants to the Board of Transportation the power to fix just and reasonable standards. Sec. Exercise of Powers - the board shall proceed promptly along the method of l egislative inquiry(applies to the entire industry; no need of notice and hearing ) Reasonable standard * The span of six years is a reasonable standard * by that time the taxis have fully depreciated, cost recovered and a fair retur n of investment.

Velasco vs. Villegas Facts: the City of Manila Passed an ordinance prohibiting operators of barber shop to conduct the business of massaging customers in any adjacent room/rooms o r in any room within the same building where the barber shop is located and the operator is the same person. Police Power Measure: 1. To be able to impose payment (massage) which is entirely different from that of a barbershop 2. To forestall possible immorality which might grow out of the construction of separate rooms. Legitimate means * No distinction between male and female * It is based on the factual basis that it is practiced (prostitution), when mas sage can be had in a barber s chair.

Dela Cruz vs. Paras Facts: The municipal council of Bocaue, Bulacan, passed an ordinance prohibitin g the operation of night clubs and employment of hostesses.Can the municipal cor poration prohibit the exercise of a lawful trade and lawful occupation? Held: Police power is insufficient to justify the enactment of the assailed ord inance. It must be declared null & void. Resort may be had to the law delegating the power to municipal corporati on although the municipal corporation is allowed & authorized by law to enact or dinances:

An Act Granting Municipal or City Boards and Councils the Power to Regula te... The power granted remains that of regulation and not prohibition. Sinc e there is no dispute as the title limits the power to regulating, not prohibiti ng, it would result in the statute (Herein under controversy) invalid. Every bill must embrace only one subject which shall be expressed in the title thereof AngloFil vs. Lazaro Facts: * The President issued a letter of Instruction directing PPA to evaluate all rec ognized cargo-handling contractors and set and determine the qualified contracto r. This was followed by a memorandum directing submission of a report on the in tegration of the stevedoring operations. * In compliance, PPA made a study and evaluation of the arrastre and stevedoring and to select the most qualified among them. * The committee submitted a report recommending the award of an exclusive contra ct to Ocean Terminal Services, Inc. * The same report was submitted to the Pres. and was approved by him * As such, PPA entered into an exclusive contract with OTSI Issues: Whether or not it can validly award an exclusive contract to OTSI Whether or not LOI granting PPA the authority are all valid. Property Rights: * It is a police measure; can regulate the stevedoring industry in exercise of p roperty rights * State can impair contracts if it is in the exercise of a valid police power SC: The law creating the PPA authorizes it to exercise authority for the effic iency and economy of the arrastre services which included integration of arrastr e services of all ports in the country. The operators are conducting business o n a temporary nature and subject to further order of the court. On account that companies have already entered into contracts with foreign compa nies, does it violate the non-impairment clause? NO, because it is in connection with the regulatory powers of the PPA, in effect a police power measure. Police power is the least limitable. This power is no t estopped by the fact that one has entered into a contract. The state can regu late property rights. Monopoly- Art. XI Sec. 19 Monopolies are not outrightly prohibited in the country. What is prohibited are business activities in restraint of trade or unfair competition.

Bautista vs. Juinio Facts: A letter of Instruction was passed banning the use of vehicles classifie d as heavy or extra-heavy during weekends and holidays. Why are trucks conspicuously exempted? * Because trucks are used to transport utilities/goods during weekends/holidays * The use of Heavy and Extra Heavy vehicles during weekends and holidays are usu ally for leisure activities

* It is very remote that they would use trucks for leisure * Not banned during weekdays The problem being addressed here is the problem on oil crisis. There is a great demand for the gov t. to adopt measures to address the foreseeable depleting oil supply. * Although the measure will not actually solve the oil problem, but at least it will address the situation or public interest. So long as it addresses public i nterest, still it is sufficient and a valid police power measure because of the public interest requirement. * On reasonableness, note that it does not apply to all vehicles but only to H & EH vehicles and also not on weekdays * Not valid if based on brand and model * Classification is based either H or EH because of the rate that they consume f uel * This also proves that Police Power is dynamic. Meaning, it moves along with t he demands of time. There would not be such measure if there was abundance of f uel.

Balacuit vs. CFI Facts: The Municipal Board of Butuan City passed an ordinance containing the f f. provisions: Children between 7 - 12 shall be charged 1/2 of the fee of movie tickets Offenders thereof shall be fined or imprisoned. Petitioners assails the validity of this ordinance to be an invalid police measu re and is ultra vires. Respondents: The ordinance was not enacted ultra vires since the power to regu late and fix the amount of license fees for theaters has been expressly granted under the city charter. Issue: Whether or not this power to regulate include the authority to interfere in the fixing of prices or is a valid exercise of police power. Held: NO. The reason for the ordinance is to ease the burden of parents and th e fact that they do not fully understand the nuances of movies as well as the mo rality aspect of letting the children watch only wholesome movies. Subject: The first reason is acceptable, however, the second is not since the f ixing of price at 1/2 would only discourage the owners to show wholesome movies, since they would be burdened by the other half if they do. As such, the public interest requirement is not satisfied. Means: Furthermore, the ordinance does not provide for means to identify the 7

- 12 year olds. It does not provide for a safeguard. Showing of birth certifica tes is not practicable. SC: The ordinance fails to satisfy the substantive requirement of lawful subjec t and lawful means, thus unconstitutional.

Ynot vs. IAC Facts: The president issued an EO prohibiting the interprovincial transfer of carabao a nd carabeef. Any violator shall have his carabao confiscated and to be distrib uted to institutions as the chairman of NMIC may see fit. The petitioner here was convicted for violation of said order by transporting ca rabaos from Masbate to Iloilo without the required permit. His carabaos were confiscated, and he then asked for recovery and posted a bond for P20,000. He now assails the validity of the EO. Subject: The subject is carabao which is prohibited from slaughter because of i ts importance to farmwork. So, under the police power of the state, it can be p rotected even if it would redound to deprivation of right to property. Means: The means is not reasonable because requiring a permit for the interprov incial transfer would not necessarily prevent the slaughter of carabaos. Retain ing the carabaos in one province will not prevent their slaughter, any more than moving them to another province will make it easier to kill them there. SC: Thus, it is an invalid exercise of police power. Due Process: The EO further violates the due process clause inasmuch as it give s the chairman the power to confiscate the carabao outrightly without the benefi t of a hearing. Delegation: The EO violates the rule on delegation because it does not provide for a standard or limitation for the chairman in determining where to give the c onfiscated thing. The phrase as may see fit is too broad. Held: The EO is unconstitutional because it violates due process. valid delegation of power and an invalid exercise of police power. It is an in

No person can be held liable under the EO. * Orthodox view - An unconstitutional law could not be a basis of any right or r esponsibility * Unorthodox view - Despite unconstitutionality, certain acts done before the de claration of unconstitutionality are considered valid for all purposes favorable to the person affected. However in Drilon vs CA wherein the law creating SBMA, which provides that its c hairman will be the mayor of Olongapo City, was questioned. The SC has ruled th e law to be unconstitutional since the constitution provides that elective offic ials cannot hold any other positions. However, Gordon has occupied the position and has entered into contracts. Considering the unorthodox view, those contrac ts are valid. In the case of Ynot, however, he was convicted prior to the declaration , but th ere is a question whether to adopt the orthodox or unorthodox view. In the RPC, however, the law is always construed in favor of the accused, since the unortho dox view would clearly penalized the accused, the orthodox view should be adopte d.

Del Rosario vs. Bengson Facts: This is about a class suit filed by the Phil. Medical Association assail ing the validity of the Generic Acts Law. The GA provides that all govt. agenci es and personnel shall use generic names in prescribing medicine. And that all medical, dental and veterinary practitioners shall use generics also but can ind icate the brand name after the generic name. Subject: To promote public health, by making available to the poor affordable d rugs of the same therapeutic effect as the branded names. Means: It does not prohibit doctors form prescribing a brand but rather it allo ws them to indicate the brand name in parenthesis after the generic name. The l aw prohibits the doctors from indicating no substitution . This does not necessari ly prohibit the doctors sine the prohibition is reasonable enough to attain the desired intention of the law affording the public the choice of medicines having the same therapeutic effect or even the salesgirl s right to inform the public th e same. Contract: There is no violation of the right contract because there is no contr act between the doctor and the patient. The doctor can refuse to accept a patie nt, the same way that the patient can refuse to buy/drink the prescribed medicin e. Besides, even if there is a contract, this can be overridden by the police p ower of the state to secure the health of the people. Held. Generics Act is constitutional. Petition dismissed.

DECS vs. San Diego Facts: Respondent is a graduate of UE with a degree of BS in Zoology. He has t aken the NMAT three times and flunked as many times. He applied to take it for the fourth time but was rejected. He now challenges the constitutionality of M ECS order prohibiting him so. Respondent Judge declared the order invalid holdi ng that he was deprived of his right to pursue a medical education through an ar bitrary exercise of the police power. Constitutionality of NMAT: In Tablarin vs. Gutierrez, SC upheld the constitutio nality of the NMAT as measure to limit admission to the medical school only to t hose who have initially proved their competence and preparation for medical educ ation. Regulation of the practice includes regulation of admission to the medic al school. Subject: To regulate admission to the medical school on the basis of protecting the medical profession in order to protect the lives and health of the people. Means: If you have failed the NMAT 3 times, you cannot anymore take it for the fourth time. SC: The greater the link between public interest (health) with the profession, the greater the leeway is for the state to regulate the profession. Held: The right to quality education invoked by private respondent is not absol ute. The Constitution also provides that every citizen has the right to choose a profession subject to fair, reasonable and equitable admission and academic req uirements. You cannot force one to enter a profession much more for him to forc e himself into a profession. Previous judgment reversed.

SUBSTANTIVE DUE PROCESS (EMINENT DOMAIN) De Knetch Vs. Bautista Facts: The government, through DPWH prepared a plan to extend EDSA to Roxas Blv d. The proposed extension will pass through Cuneta Ave. However, this plan wa s changed and such that the extension will now pass through Fernando Rein and De l Pan Streets. Therein petitioners asked the Pres. to adopt the original plan. So, the Pres. asked the Human Settlements Commission to conduct an investigatio n and a recommendation be given. The parties were then given the opportunity to be heard and present evidence. While this was going on, the gov t. filed an exp ropriation proceeding and writ of possession which was granted by the lower cou rt. Held: There is no question that the taking is for public use since it is a publ ic road. However, the question is whether or not the taking was reasonable and whether the gov t. capriciously and arbitrarily chose the private property. The SC ruled it to be unreasonable on the following grounds. 1. The road which will pass through Del pan and Fernando is more crooked and is 3 meters longer than the other proposal. the defect is on the additional cost. 2. The reason of the gov t s choice in order to lessen the special impact factor in volved is baseless since in the first proposal, what would be passed through wil l mostly be hotels, while on plan 2, residential houses would be affected. As s uch, the social impact factor according to the HSC report would be greater in pl an 2 since it would be displacing families from their family home, while in plan 1 it would be mostly businessmen. This case shows that even if the requirements of eminent domain are all satisfied , there is still that inherent validity test to consider. Even if it is grante d to the state, but if it is arbitrary, meaning, there is no actual basis for it , then it can be held unconstitutional or illegal

Republic vs. De Knetch Facts: Respondents moved to dismiss the expropriation case because of the above -mentioned decision of the SC. The lower court dismiss the case based on the fa ct that BP 320 was passed expropriating the same properties for the same purpose . The CA reversed it on appeal. Hence, this petition by the Republic. Issue: Whether or not an expropriation proceeding that was determined as arbitr ary by the SC may be subject of subsequent legislation for expropriation. Held: YES. The Court s decision can now be supplanted by subsequent legislation on the basis the eminent domain can be exercised by the state through voluntary negotiation, court action or by legislation. Besides, BP 340 was based on super vening events not existing before the decision of the SC. The social impact fac tor is no longer existing simply because all residents in the area have been rel ocate and duly compensated. 80% of EDSA has been completed and 30% of extensio n been completed. The decision of the SC in De Knetch and BP 340 are based enti rely on different circumstances. Family homes can no longer be dislocated since they have been relocated. If the court has already ruled that the choice was arbitrary, Congress cannot ena ct a law expropriating it. The question is whether or not Congress can expropri ate a property which the court has ruled earlier as an arbitrary choice. SC wen t into the authority of the state, primarily by Congress to enact a law on expro priation. SC conceded that Congress has authority. If it determines that the p roperty should be expropriated then that authority is conceded. There is no a rgument as to whether or not it is for public use generally speaking, because C ongress will deliberate on the law whether the intended use is public use. Howe ver, if the question is whether or not the law is a mode of substituting the 198 0 ruling, SC said it is not because Congress cannot correct judicial decisions by legislation. What happened in the 2nd case is that the decision was based o n a different set of facts.

Heirs of Ardona vs. Reyes Facts: PD 564 or the Revised Charter of the Phil. Tourism Authority declares ce rtain barangays in the province of Cebu as tourist zones. The decree grants PTA the authority to acquire by purchase, by negotiation or by condemnation proceed ings any private land within and without the tourist zones. CFI of Cebu has gra nted writs of possession to PTA after filing expropriation cases. Petitioners c ontend that:

1. taking is not for public use (Tourism) 2. there is no specific provision in the constitution authorizing the taking of private property for tourism purposes 3. land is already a land reform area 4. limiting the amount of compensation by legislative fiat is constitutionally repugnant. SC: The constitutional provisions on eminent domain limit the authority of the state to exercise eminent domain. They do not provide for a grant for the state to exercise eminent domain. Without the provisions, the state can still exerci se eminent domain because the reason why these provisions have been included in the constitution is to limit the otherwise limitless power of eminent domain. D oes it include tourism? It would include. Although the constitution provides t he use of private property for public interest, defense, national interest and e quitable distribution of wealth. These provisions though do not limit the autho rity of the state to exercise eminent domain for other purposes. Is the taking for public use? YES. SC said that the old concept of public use has already been discar ded,. Any taking which will directly or indirectly benefit the public is consid ered public use. Besides, is Congress has already made a determination that the taking is for public use, meaning there is a law enacted where members of the C ongress have debated that such taking is for public use and a law is enacted pur suant to such intent, then this will enjoy judicial deterrence. Unless the expropriation makes an impossibility, the courts wil l not interfere with the legislative determination that it is for public use. I f another branch of the gov t., like Congress, by reason of the power granted to i t by the Constitution itself, plenary legislative authority, that it has already declared by reason of a law that the taking is for public use, the court will n ot interfere unless there is an impossibility or it has been exercised arbitrari ly. Even if the property will benefit only private individuals, the SC has cited certain examples: taking for a public street, taking for an airpor t/seaport. Despite the fact that these facilities are used by private persons o r corporations, this facts do not diminish the public use character of the expro priation, because of the end benefit to the public. Just imagine a place withou t an airport or seaport. The advantages/disadvantages to the public should be c onsidered. # 3 Issue here is whether or not property already devoted to pu blic use can still be expropriated for public use. Part of the property was tak en for land reform which is for public use. SC said it still allowed. #5 On the issue of non-impairment of contract clause. SC has s aid that parties entering into contract cannot estop the gov t from exercising any of its powers. #4 Can Congress or the Pres. for that matter make a determinati on for just compensation. SC said YES, a law may fix compensation but not the m aximum only a minimum determination. Because in this instance the property owne r will not be prohibited form adducing evidence to prove that the property has a value higher than the minimum. This is pursuant to the factors to determine ju st compensation: fair market value, actual value, consequential damages, conseq uential benefits, owner s loss and not the taker s gain. To arrive at these factors , the owner should be given the chance to present proof that the value of the lo t is more than that fixed by law.

EPZA vs. Dulay Facts: The President issued PDs which provide among other things the basis for determining just compensation in expropriation cases be its market value as decl ared by the owner or as determined by the assessor whichever is lower. The con troversy arose when the President reserved certain areas to used as export proce ssing zone. Since the other party would not agree to sell an expropriation case was filed and subsequently, a writ of possession was filed by the judge. The judge however, appointed commissioners to determine the just compensation to be paid. EPZA opposed this contending that the PDs above has provided that compens ation be determined a above stated so there is no more need for commissioners. They further contend that they assessors and property owners themselves have the power to fix the market value of the properties. Issues: Whether or not the PDs have superseded the procedures in the Rules of C ourt in determining just compensation, or is there a denial of due process under PD 1533 as to the determination of just compensation, that it should be declare d unconstitutional. Held: In the case of the PDs, there will be no more commissioners to be assigne d, since it would be the lower amount of owner s declaration or assessor s assessmen t as found in the tax declaration. This violate due process. Procedure must be: 1. Expropriator will file case in court 2. Expropriator will initially prove to the court the valuation of the property 3. Expropriator will then deposit 10% initial determination 4. a Writ of possession is issued 5. there will be a hearing conducted to determine just compensation 6. the court will appoint 3 commissioners to determine the exactness of the just compensation 7. The basis of the commissioners will be the owner s loss and not the taker s claim (fair market value, actual value, damages and benefits) In case of the PDs, the court will be limited to the 2 amount whichever is lower in choosing just compensation. SC said that it is not acceptable for the court s to leave the determination of just compensation to a mere clerk in the assesso rs office who prepares a tax declaration. Why? 1. Tax owners would normally accept unquestioningly tax declarations 2. Tax assessments would not consider basic differences in the property because they consider a big mass of property. 3. property owners do not think of expropriation in applying for tax declaration and would normally indicate the lower value. 4. Assessment levels are almost the same for a longer period of time. Valuation

of 1995 is the same as 1952 unless there is a change in the assessment level by the gov t. Therefore, it is unfair to make tax declaration the basis for determining just compensation. It would not now, although there is a hearing, it does not have t he character of judicial determination of just compensation because only the low er amount shall be considered. According to SC, even a grade schooler can determ ine which is lower. Hence, PDs are unconstitutional with regards fixing just co mpensation. Q. Can sentimental value be the basis of just compensation? A. NO because sentiments cannot be quantified in terms of money. It will never be accurate.

Manotok vs. NHA Facts: The President issued LOI instituting a nation wide slum improvement. In compliance, Metro Manila governor adopted a list of areas as top priority for t he improvement. Properties Tambunting Estate and Sunog-Apo were included in the list because of the declaration that these are blighted communities. Tambuntin g Estate was razed by fire and consequently the Pres. wanted to acquire the prop erty for the fire victims. The owners refused to sell hence, the Pres. issued P Ds automatically expropriating estates. The owners now question the Constitutio nality of the PDs. Held: Although a court hearing is not required for purposes of eminent domain s ince its requirement is only due to Rule 67, Congress can enact a law doing away with the commissioners. But there must be opportunity on the part of the owner to present evidence to fix just compensation or at least to dispute the fact o f expropriation. Since in the PDs under question, it is not provided with any f orm of hearing since automatically it expropriated the property and declared the area blighted. The PDs gave the power to determine compensation to the assesso r and did not give the owner the chance to prove the amount or valuation of thei

r property. Q. Is there a necessity to expropriate the properties? A. Tambunting Estate - there was, because of the fire, but still cannot be expr opriated since there was summary proclamation that the area is blighted, that no deposit is required under the PD, no provision on interest payments, NHA determ ination is final denying the court the chance to question or scrutinize the deci sion. Sunog- Apo - There was no necessity for it, because half of the area i s developed while the other half is commercial. The property is valuable not bl ighted. If it will be awarded to somebody, chances are, he will just sell it.

Sumulong vs. Guerrero Facts: This is a petition for certiorari on the constitutionality of the act of NHA based on PD 1224 whereby the NHA filed expropriation proceedings for lands in Antipolo fixing the value at P1.00/sq.m. Petitioners argued that PD 1224 is unconstitutional based on the ff. grounds: 1. it allows taking of land regardless of size 2. the valuation has been fixed at P1/sq.m. 3. denies the court judicial discretion in determining just compensation Held: Socialized Housing: is taking for public use since the modern view includ es indirect benefit to the public. If there is a shortage of housing, it will a ffect public health, environment and in general, public welfare. Another ground cited by the court are constitutional provisions regarding socialized housing ( I t is the policy of the state to provide adequate social services. ...providing the public decent housing at affordable cost ) #1 JM Tuason Ruling The propriety of exercising eminent domain cannot be determined on a purely quantitative or area basis. Even how small the area is, so long as the benefit will redound to the gen. public, then it is for public use and as l ong as there is no grave abuse in the choice of the land, it will be respected b y the courts. #2 & 3 EPZA Rule Findings of clerk should not be the basis of determining just co mpensation... #4 Writ of Possession or the authority of the expropriator to enter the land must be issued only when an action sufficient in form and subs tance has been filed with the court and that there must be a judicial determin ation of the valuation of the land and finally the deposit of 10% of determined compensation.

Tuason vs. Register of Deeds Facts: Spouses petitioners Tuason bought from Carmel farms a piece of land in a subdivision. By virtue of this, a new title was issued in their name. Pres. M arcos issued a PD invalidating the title of Caramel and others derived from it a nd declared that Malacaang Homeowners Ass. were the rightful owner s and occupant s. Tuasons now assails the constitutionality of the PD on the ground of denial of due process. PD 293 provides that: 1. Carmel was not able to pay in full the land. 2. the land never ceased being a public property since Carmel did not possess ow nership of the land. 3. Titles derived from Carmel are also subsequently invalid. Held: The decree is said to be violative of due process because the expropriati on was done through judicial-legislation and as such, the parties were not give n opportunity to dispute since it was not done in a n ordinary court procedure. Mr. Marcos exercised judicial legislation by determining facts applying the l aw to the facts and determined the legal right of the parties (that they were no t able to pay the purchase price, hence they did not have ownership of the prope rties since the lands never ceased to be public). He declared that Carmel and o ther owners did not have legal title or right and that it shall be the members o f the association which shall be entitled to the same property. This is clearly an exercise of judicial power through legislation which the Pres. does not have under the constitution. This is violative of due process because it id not giv e the parties the opportunity to contest the findings of the pres. SC said that there are several remedies, they can file a suit against ca rmel either to collect the balance, or they can have the title canceled, but the state did not do any of this, which requires the filing of a complaint in court . On eminent domain, since the lots are occupied by titled persons, the st ate cannot just decree it expropriated and give it to some kind of persons or th e same type of occupation. The state cannot take a property being occupied by 2,000 families and distribute to another 2,000 families displacing the latter. It would be different if it is a vast track of land and is distributed to other occupants. There is no logic to this. SC said that the PD is not even a proper exercise of eminent domain.

PPI vs. Comelec Facts: This is a petition assailing the constitutionality of Res. 2772 requirin g print media to provide free Comelec space not only for the dissemination of qual ifications of candidates for senatorial election but as well as on the issuances of the Comelec relevant to the conduct of election. Members of the PPI receive d a letter commonly worded sent by one of the Commissioners on Resolution 2772 r egarding availability or to make available the free Comelec space. This was obj ected to by individual members of the PPI that it is equivalent to exercise of e minent domain without just compensation. The argument of the state are as follows: 1. This was not mandatory because it does not provide for any penalty for failur e to provide for free Comelec space (voluntary) 2. Even if it is not voluntary, that it is a valid exercise of police power and that it is pursuant to the regulatory powers of the State in the conduct of elec tion. Held: #2 The SC in granting the petition, said that in the exercise of eminent domain, aside from payment of just compensation and taking for public use there must be necessity for it and that the expropriator must have authority . These are the additional requirements for the proper exercise of eminent domain. As in th e case of Rep. vs. De Knetch, there was no necessity since the choice was arbitr ary. Respondents failed to show that the petitioners are not willing to provide

them for pay. Remember that eminent domain can only be exercised when the owne rs would not agree to sell, since this is an extraordinary form of acquisition o f property. the respondents failed to show that before they issued the resoluti on that the members of the PPI are not willing to provide for Comelec space. Me aning, it is not really necessary to enforce the resolution since they have not asked the members to sell. As to the requirement of authority, traditionally, it is the National Le gislature which has the power to exercise eminent domain but now, by reason of v alid delegation, The President, quasi-public corporations are allowed to exercis e eminent domain provided it is anchored on a valid delegation. SC said that r espondent failed to show that they are authorized by the constitution or by law to exercise eminent domain. There being no authority, it cannot exercise eminen t domain. The fact that it will be for free, SC said that it will be an unjust tak ing since there would be no payment of compensation, as such, it unnecessarily affects the property rights of individual members of the PPI. This can be class ified as taking of property for public use since we do not only talk about priva te property. The only things that can t be expropriated are money and chose in ac tion. So, even if it is a franchise, it can be subject to expropriation. Newsp aper space is paid as such, it is private property. #1 A written communication officially directing to provide free Comelec spa ce, dispatched by a constitutional gov t agency and signed by a presumably authori zed commissioner is bound to produce coercive effect.

EQUAL PROTECTION

Art. III, sec. 1: ... nor shall any person be denied the equal protection of the law. Equal Protection is dynamic, it goes with the time. Meaning, what is considered as valid classification today may no longer be considered valid classification i n the future. Definition: All persons or things similarly situated must be treated alike, both as to rights conferred and responsibilities imposed. Thus, if the same people or things belong to a particular class, the same law mu st apply to them equally. PROCEDURAL ASPECT Equal implementation of the law; equal effect on the same person of the same cla ss. e.g. In Davao City, selling liquor is prohibited past 2 AM or the Anti-Smoking o rdinance in public utility vehicles while in motion or the Anti-jay Walking law. The application of these ordinances do not happen all year round or vendors are arrested but bars and other establishment are not. SUBSTANTIVE ASPECT Refers to the intrinsic validity of the classification. It does not require thou gh that there be a universal application of the law what is required is that the same law should be applied to the persons/things in the same class equally. It is not correct to say that all laws should be applied to all. For so long as the re is a valid classification, a law may apply to one class and not apply to anot her. In effect it gives the STATE or CONGRESS the authority to classify.

a.SOCIAL EQUALITY Association V. Secretary Facts: These are 4 cases consolidated since these involve common legal question that is primarily to ask the declaration of nullity of PD 27 and EO 228. These l aws instituted a Comprehensive Agrarian Reform Program. Petitioners are owners o f tenanted lands, one a rice land and another a sugarcane plantation. They quest ion the validity of the laws on the ground that it violated the equal protection clause because they place the burden of solving the agrarian problems on the ow ners only of agricultural lands. No similar obligation is imposed on the owners of other properties Held: the petitioners failed to prove that they belong to another class. There i s substantial distinction between owners of agricultural land and other lands si mply because the object of the program is agrarian reform. Valid classification since it is germane to the purpose of the law.

b.ECONOMIC EQUALITY

* Art. guides * Art. wealth * Art. * Art.

II, sec. 14 - Fundamental equality before the law of men and women. This the state in enactment of laws. XIV, sec. 1 &2 - Reduction of economic inequality by equitably diffusing and political power. XII sec. 2(2),3, 7,10 & 11- Nationalized Industry XV - Protection of Fil. from foreign investors.

e.g. Mass Media - 100% Filipino owned (publication). The presence of Newswe ek, Time, etc. is by reason of the allowance on their distribution and not publi cation.

c.POLITICAL EQUALITY Dumlao V. Comelec Facts: Dumlao is a retired governor of Nueva Vizcaya who has filed his certifica te of candidacy for said position. He questions the constitutionality of sec. 24 of BP 52 as discriminatory and contrary to the equal protection clause. BP 52 ... Any retired elective provincial, city or municipal official who has rec eived payment of the retirement benefits to which he is entitled under the law and who shall have been 65 years of age at the commencement of the term of offi ce to which he seeks to be elected, shall not be qualified to run for the same e lective local office from which he has retired. Held: Although Dumlao was not a party in interest since no charges has been file d to disqualify him, the court resolved the issue because of the paramount publi c interest as well as the proximity of the election. The law is valid. For purposes of public service employees 65 of age have been validly classified from younger employees. It might not be reason able to disqualify 65 year old retirees since he can still be a good official. B ut the purpose of the law is to promote the emergence of younger blood in local politics as determined by Congress. As in the case of a 65 year old who has ret ired, there is reason to disqualify him for the reason that he has already decla red himself tired and unavailable.

Ygot V. Comelec Facts: Ygot and Salapantan questions the constitutionality of sec. 4, BP 51. Any person shall be disqualified to be a candidate for any offices covere d by this Act or to participate in any partisan political activities; ...provide d that judgment of conviction for any of the aforementioned crimes shall be conc lusive evidence of such fact; and ...the filing of charges for the commission

of such crimes before a civil court or military tribunal after preliminary inves tigation shall be prima facie evidence of such fact. Held: The law is partially unconstitutional (...the filing of charges...). Expli cit is the constitutional provision that in all criminal prosecutions, the accus ed shall be presumed innocent until the contrary is proved. The law contravenes this presumption as a candidate is disqualified from running on the ground alone that charges have been filed against him. Furthermore a legislative determinati on of guilt should not be allowed to substitute a judicial determination. A disqualified person is virtually placed in the same category a s a convicted person with a penalty of arresto since it carries w/ it the access ory penalty of suspension from the right to hold office.

PJA V. Prado Facts: petitioners seek to declare the unconstitutionality of RA 7354, the law w ithdrawing the franking privilege of the SC or the Judiciary. It is alleged that this law is discriminatory because while the judiciary is deprived, the Pres., VP, Congress, widows of former Pres. privilege are retained. Held: Based on the reason behind the law, out of P90 M of revenue lost, P73 M is due to the judiciary. At this point, there seems to be a valid classification. However, the 3 branches of the gov t are co-equal departments, hence they belong to the same class. It is unreasonable to grant the privilege to the other two bu t not to the judiciary. Bear in mind that the reason for the privilege is to allow easy flow of communic ation between branches of the gov t. This is beside the fact that many cases are p ending in our courts. If the reason for the law is revenue loss, then why grant it at all. Petition granted. Law is Unconstitutional.

REASONABLE CLASSIFICATION is present if the ff. Elements are complied with: 1. 2. 3. 4. Classification must be based on substantial distinction. It must be germane to the purpose of the law. It must not apply to existing condition only. It must be applicable equally to all members of the same class.

1. CLASSIFICATION- Grouping of persons/things similar in some respects and di fferent from all others in the same particulars.

rank alien e.g. & file menminor/ / women / /supervisory citizen adults Substantial Distinction: the distinction must not be superficial, e.g ., the law cannot classify persons according to color, weight, etc. DECS vs. San Diego Facts: This is the case of the 3 flunk rule of the NMAT. San Diego alleged that the right to education is unduly burdened. Held: There is substantial distinction between prospective medical student and s tudents of other profession. The medical profession is intimately related to lif e and health and thus impressed with public interest. The shorter the gap betwee n the profession and public health/interest the greater the state regulation. Th e reason is to sanitize the medical field because people would entrust our health and lives to these medical practitioners.

2. GERMANE TO THE PURPOSE OF THE LAW- There must be a reasonable connection wit h the means to accomplish the purpose of the law to the classification. E.g: The state policy to compel the citizens to render military or civil service in line with the defense of the state: There is valid classification substantial to the purpose of the law when able bodied are classified from sickly persons sinc e the purpose of the law is to defend the state. But not with regard to distinct ion of men and women since this can still be questioned (Female pilot vs. Male p ilot). There must be a connection between the classification and the purpose of the law. In the Labor Code, women working in a field which would require them to stand fo r long periods of time are given some rights not given to men. This is a valid c lassification. These women must be given seats or stools. Otherwise, their repro ductive organ will be affected by standing for long period of time.

3. DURATION- It must apply not only to present condition, but it must be applic able for so long as the condition or problem sought to be addressed exists. e.g. Maternity the fact of giving birth or effects of giving birth to a workin g woman continues butr you make it applicable for a specific duration of time. Ormoc Sugar vs. Ormoc City Facts: An ordinance was passed imposing tax specifically on centrifugal sugar p roduced by Ormoc Sugar.

Held: The ordinance is violative of the equal protection clause. The law was onl y limited to existing conditions. Although Ormoc Sugar was the only sugar miller at that time, the ordinance should also cover for other future sugar millers. T he ordinance should have stated that all sugar mills in the municipality should be taxed so that anybody who comes in and start the same business can now be cov ered by the ordinance. There was no valid classification.

4. APPLICABILITY TO ALL- Absolute symmetry is not required but only substantial symmetry in the application. Enforcement is equal although the result may not b e literally equal. It is not required by law that there must be absolute equality in the result as well as the application. Only substantial equality. For so long as the law is ap plied equally, there is compliance. e.g. Minimum Wage * Classification cannot be based on minority, sex, etc. * Gender and age has nothing to do with work output. * This is based however on fair day s wage on a fair day s labor Nunez V. Sandiganbayan Held: There is valid classification between an ordinary accused and a public off icer because of the ff. reasons: 1. Public office is a public trust. 2. The constitution makes mention of the creation of a special court to address dishonesty in gov t service and cleanse the gov t of undesirables. (This fact has be en taken notice as far back as 1973 constitution.) 3. the general guarantees under the Bill of Rights must give way to a specific p rovision, one reserving to Fil. citizens of the operation of public services or utilities.

Himagan V. People Held: on the aspect of equal protection, there is a valid distinction between me mbers of the PNP and other accused because PNP members charged with serious off enses if not suspended or continue serving in the force there is a possibility t hat victims/witnesses may no longer be willing to testify simply because policem en carry weapons and the badge of the law which can be used to harass witnesses Members of the PNP are different from other accused by reason of the positions t hey occupy. Obiter: PNP are not members of the military but rather civil officers under the mayor. Basis is the constitutional provision of civilian supremacy over the mili tary.

2006 notes:in preventive suspension , no need for due process since it is a pena lty. 2006 notes: classification to be permissible it must be allowed by constitution and it must passed the 4 test stated above. 2006 notes: equal protection can be invoke by 1 department as against the other department.

PROTECTION TO LABOR - Economic capacity of Fil. working men. As provided by Art. II: * There shall be protection to labor overseas or local, organized or not organiz * OCW s are subject to legislation even if they work abroad. ed. Our legislation here would not be effective to other countries so the thrust o f the gov t is to enter into agreements with host countries, so that the rights of *OCW s will be protected. can no longer affect. Once your out, our laws The gov t is now regulating the immigration of OCW s as well as the work they will be engaged in (work, age). Rights: * Full employment & equality in employmentthe right to strike in accordance with Peaceful concerted activities Right to self-organization. including opportunities. law. These rights are given to provide the workers opportunity to improve their econo mic standing. Obviously there is economic disparity between the management and w orkers. Alien Employment - An alien is required to acquire a permit from the Dept. Of L abor before he can be hired as an employee here subject to unavailability of a c ompetent and willing Fil. citizen.

Ichong vs. Hernandez Facts: RA 1180 was passed to nationalize retail trade business in the country, i n effect it prohibits non-citizens and partnerships not wholly owned by Fil. cit izens to engage in retail trade while those actually engaged are required to sec ure a license (di ba i-revoke? JR). The purpose of the law is to prevent aliens from engaging in retail b usiness in the Phils. based on the following reasons: 1. There is alien dominance in the business. 2. Mostly Fil. are consumers giving aliens the chance to control distribution of goods as well as prices. Issue: W/N There is substantial distinction between aliens and Filipinos. Held: SC ruled that there is substantial distinction since the aliens loyalty to the country is of temporary nature based on personal interest. Besides, the m oney they earn from engaging in business here is invested elsewhere and the coun try cannot benefit. They cannot empathize with the Fil. consumer. This is over a nd above the fact that there is a need to strengthen the economic independence o f Fil. retailers in line with the National Economic Program. On due process: They are not outrightly prohibited to engage in the business. Th ey are given a period of 5 years within which they are allowed to wrap up things . Police power: Any act intended to regulate trade is a valid police powemeasure. Hence, it cannot be violative of any treaty. The distinction is substatial since it is relevant to the purpose of the law. Vera vs. Cuevas Facts: The Comm. On Internal Revenue ordered the manufacturers of filled milk to take from the counters all their milk w/o the inscription This is not suitable for infants less than one year of age . Petitioners question why it should be applied to them only and not to skimmed milk. Skimmed milk: the fatty part has been rem oved. Filled Milk: Fatty part removed but replaced with other oil (vegetable) ot her than milk fat. Issue: W/N there is distinction bet. Filled milk and skimmed milk. Is there a di fference in the nourishment they provide? The question on equal protection is th at why should one milk be ordered and here comes another kind of milk not suitab le, yet it is not required to put the inscription. . Is there a difference in th e nourishment? Both not suitable. The intention of sec. 169 of the Tax Code is t o inform the public which milk are not suitable for nourishment and this should be applied to all kinds of milk not suitable for nourishment. Since both are not suitable, it is irreconcilable that only some milk are required and not all oth ers where the fatty part has been removed wholly or in part. Held: Hence, there was unequal application because even if there is substantial distinction (skimmed, filled) germane to the purpose of the law ( to inform the public), the last requirement is not complied with, because it is not applied to all belonging to the same class. Section 169 All condensed skimmed milk and all milk in whatever form, from which the fatty part has been removed totally or in part. Chua V. Civil Service Facts: Lydia Chua filed an application under the Early retirement Law but was de

nied for the reason that the law does not contemplate contractual employees in t he coverage. Held: Chua should be given the benefit under the law. The objective of the law i s to streamline the bureaucracy, to do this it will allow early retirement and w hen positions that are not so important are vacated they are deemed abolished. T he law allows casual, emergency, temporary and regular employees to avail of it. It can be observed that when emergency, temporary and casual employees will ret ire, the position would not be diminished. The law should also be applied to Chu a. To deny her availment would deny her of equal protection, this is because con tractual is in the same category as emergency, temporary... applying the doctrin e of necessary application That which can be inferred from the provision or can be deduced therefrom by implication is necessarily included even if it is not prov ided for.

FREEDOM OF EXPRESSION PRIVACY OF COMMUNICATIONS Art. III. Sec 3: Privacy of Communications --applies to oral and written ,and that such privacy to communication applies to ordinary person (and not detainees which means that detainees letters can be rea d by jail warden before it can reach the detainee except if such contains atty-c lient relationship therefore latter can be open by warden but not read) Restrictions to Privacy of Communications can only be done either by Congress by prescribing a law as public order and safety requires or by the Court (as such ,these two entities are the only ones who can restrict ) 2006 notes: in anti-wiretapping law, unlike in privacy of communication, the for mer contains punishment but such law is applicable to oral communications only. A scenario would arise like if tape recorder is used while listening to a conver sation w/o knowledge of other party then it s a violation of anti-wiretapping sinc e a gadget is used, however, if listen only to conversation w/o used of gadget a nd that person who listens testify in court then such is admissible. Lagunsad vs. Soto Vda. de Gonzales A licensing agreement was entered into by the heirs of Moises Padilla with the m ovie outfit. A licensing agreement for a movie outfit is a prior restraint beca use if there is no agreement, it could not show the life of Moises Padilla. SC in discussing this case said, there is a difference between a portrayal of th e life of a public officer in non-fictionalizes character/manner. If the showin g of the life of a public officer is fictionalized or novelized, it unnecessaril y invades into the right to privacy. For example, a news clipping is made and it is shown in TV, that would not be an invasion of privacy because it is a real showing of what had happened with resp ect to that public figure. But if it is a movie, and the character of such offi cer is fictionalized or novelized, there must be a balancing between the right t

o privacy and freedom of expression. SC further said that being a public figure does not automatically means loss of right to privacy. The limits of freedom of expression, according to the SC, are reached when the e xpression touches upon matters of essentially private concerns.

Ayear Production vs. Capulong The movie they intend to show does not touch on the private affairs of Sen. Enri le, but will only tackle his participation in the 4-day revolution. That is all owable intrusion into his life because it is limited to his public character, no t his private affairs. Thus: a limited intrusion into a person s privacy where such person is a public fi gure, and the information sought to be elicited from him or to be published abou t him constitutes matters of public character, is permissible. There is no unwa rranted/wrongful publicity in this case.

FREEDOM OF EXPRESSION Art. III. Sec. 4. No law shall be passed abridging the freedom of speech or expr ession or of the press or of the right of the people to assemble and petition th e government for redress of grievances. CRITICISM AND CONTEMPT 1. If what is subject to the criticism is the SC itself, the lee-way or latitude for the exercise of freedom of expression is limited.

- People will lose trust in the Highest Court when it is filled with so much cri ticisms. 2. If what is being criticized is the lower court, the latitude is widened. - There is an assumption that the final arbiter may rule differently anyway. In re Emiliano P. Jurado According to the SC, published report or comment on a non-existent decision tend s directly to embarrass the court and obstruct its proper functioning. It pictu res the court as incompetent guardian of its confidential proceedings. While me dia practitioners may criticize conduct, it does not allow publication of false information.Jurado was penalized. Zaldivar vs. Sandiganbayan If lawyer is at the same time a media practitioner, fair criticism of judicial c onduct assumes another dimension. There is a difference between an ordinary com mentator, writing or criticizing the court, and a lawyer criticizing the court; since a lawyer is supposed to be officers of the court, guardian of the administ ration of justice. Not to mention that the courts have the power to discipline the members of the bar. In re Ramon Tulfo Tulfo s column says idiotic decision , and called the justices sangkatutak na bobo . Tu lfo justified that it was based on the opinion of his friends and they were not directed against the justices but on the decision itself. SC, in this case, laid down the Guidelines for Fair Criticism: 1. It is made in good faith; 2. Couched in respectful language; 3. Directed at the merits; 4. Must not down-grade or ridicule the court or insult its members Sub-judice - the case is not yet terminated, but is still pending. Thus, people must refrain from commenting on an issue sub-judice. The purpose o f this is to prohibit the tendency of trying to influence the decisions of the c ourt.If the case has already been decided, the guideline for fair criticism must be followed. SYMBOLIC EXPRESSION The Flag Burning Case (Texas vs. Johnson) Is the act of burning the flag a guaranteed expression? SC said yes. However, 2 matters must be satisfied: 1. The flag is yours 2. It should not affect the rights of others. Example: You buy a flag at Alemars, burn in inside your house... that s fine. Bu t if you burn it inside Alemars, that would be different because you affect the rights of the latter. Some of the argument raised by those against the burning as free speech were: * The flag carries the long history of the nation. It should be an endeared obj ect. The argument by the proponents (those for burning as free speech): * If the flag is an object of the history of a nation, how come (in the U.S.) in their hotdogs, there are small flag on it that may be eaten or thrown away, or during exhibitions, there are clothes designed as flags, i.e. they are cut into pieces, yet there was no complaint. What makes burning different?

Anyway, SC decided burning of the flag as a symbolic expression provided that it follows the guidelines. It is different if you get the flag from the City Hall and burn it. Regarding the burning of the Singaporean flag by Duterte: actually, there was n o conflict. It was a symbolic expression. 2006 notes:wife ransack drawer of husband and looted pictures of her husband and paramour. Is this admissible? Even if it is a private individual, the pictures is not admissible since intimacy of husband and wife does not justify act of ran sacking cabinet for infidelity.except:if lawful order of court when public safet y and order requires. TWO BASIC ELEMENTS OR COMPONENTS OF THE FREDOM OF EXPRESSION

1.FREEDOM FROM PRIOR RESTRAINT: It is a form of a restriction in advance of pu blication or dissemination. Refers to so-called censorship, licensing or requir ing of permits before the publication of the expression E.g. a person might want to sell or disseminate religious articles in line with the freedom of religion which is still under the freedom of expression, expres sing one s religious belief or aspirations. If the government will require a lice nse or permit before such person is allowed to disseminate religious information , this will be considered as a form of prior restraint. General rule: the exercise of prior restraint always bears a presumption of unco nstitutionality. Except: 1.in times of war 2.when COMELEC exercises its power under Art XI,sec 4 3.when restriction is content based neutral. Sanidad vs. Comelec In an election, it is allowable to limit dissemination of election propaganda or material in orde to give equal protection to all the candidates. But not in a plebiscite. in a plebiscite, we are not talking about personalities but issues, we vote not for personalities but on certain issues of vital public concern. S o if the Resolution will be upheld, it will be an unnecessary restriction on the right of the writers or media to expreess their views to enlighten the public o n the issues involved in the plebiscite. SC said that the restriction in a plebiscite for media practitioners limiting th eir publlication on Comelec space and Comelec time on the issues is a curtailmen t of the freedom of expression. The evil sought to be avoided in an election to give all the candidates equal protection or opportunity is not present in a ple biscite.

NPC vs. Comelec The resolution of the Comelec in this case was on Comelec space and time. The m edia were restricted in granting paid political advertisements to candidates in an election, other than the Comelec space and time. According to the petitioner s, this violate their freedom of expression, to express their choice as to who s hall be the candidate to be elected. SC said this case is different because regular reporting is not prohibited. Wha t is being prohibited is the selling of space to candidates. To allow print med

ia to sell space in their newspapers will make them paid political advertisement s. It will not be in line with equal opportunity to all the candidates because only those who can pay can be able to have political advertisements. BLO vs. Comelec According to the Comelec resolution, stickers or decals of candidates cannot be posted in any place, mobile or stationary other than the headquarters, residence or the so-called Comelec poster areas. According to the SC, this is invalid because if there is a sticker or a decal po sted in any area, say a car, one cannot post it without prior consent from the o wner of the car. The evil sought to be avoided by the resolution, which is, to allow equal opportunity for both rich and poor candidates, will not be served. It will be a violation of the right of the persons who would allow stickers to b e posted in their cars or in their homes or wherever they may want This is a fo rm of prior restraint, or, a restriction made in advance of publication or desse mination. Movie Censorship (A Form of Prior Restraint) * Restriction in advance of publication Censorship is a form of prior restraint. The presumption is against its validit y unless the government shows that there is clear and present danger and substan tive danger against morals, public health, public safety or other legitimate pub lic concerns. It is the judiciary who will determine what is obscene. As such, officials canno t go to street and just confiscate obscene materials since such cannot be done s ince they have to get an order from the court first. What is considered obscene? The test is called the Clean Test to the average pe rson in applying contemporary community standards the dominant theme of the mate rial taken as a whole appears to the purest interest. The problem now is who is the average person and whose view shall it be determin ed to be the basis of what is obscene or not. There is a difference between restrictions in movie, radio, tv or print media. That all ideas having the slightest redeeming importance are guaranteed as in mo vie industry is not true to radio or tv programs. The rationale is its availabi lity/accessibility to the children. 2.FREEDOM FROM SUBSEQUENT PUNISHMENT: It is a restriction expressed in the form of a punishment. One is not restricte d initially to desseminate an expression, but once desseminated, may be penalize d. There may be no censorship, licensing nor permits required, but one is expos ed to possible punishment after expression. ACTS THAT CANNOT BE CRIMINALIZED/PENALIZED 1. MERE BELIEFS AND ASPIRATIONS Art III, Sec. 18 (1) No person shall be detained by reason of his political beli efs or aspirations . Note that the protection is on political beliefs and aspirations. This is inclu ded in the freedom of thought, for so long as the belief or aspiration does not result into overt acts which would violate existing laws. This is one of the b asis for the repeal of RA 1700, or the Anti-Subversion Law, because the proponen ts of the repeal argued that this law penalizes political beliefs and aspiration .

2. NON-PAYMENT OF DEBTS AND CIVIL OBLIGATIONS Art. III, Sec. 20 No person shall be imprisoned for non-payment of debts . This also includes non-payment of poll taxes. 3. ACTS WHEN DONE WERE INNOCENT (EX POST FACTO LAWS)already discussed in the p receeding sections.

PUNISHMENTS THAT CANNOT BE IMPOSED 1. INVOLUNTARY SERVITUDE One cannot be compelled to serve somebody without or against the latter s consent. The constitution, however, provides some exceptions: a.one penalized by reason of a commission of an offense b.citizens may, under certain circumstances be required to render military or ci vil service to defend the state. 2. EXCESSIVE FINES To be excessive, the fine must be grossly disproportionate to the crime committe d as to shock the moral sense of all reasonable men as to what is right and prop er. In the case of Dela Cruz vs. People, there was a need to control the prices, thu s validating the imposed fine which, in ordinary circumstances, could be consid ered as excessive. 3. CRUEL, DEGARDING AND INHUMAN PUNISHMENTS What is cruel and unusual, according to the SC, is not dependent on the gravity of the punishment, but more on the nature of the penalty. If by nature, the penalty is acceptable even if grave, there is no constitutiona l violation. E.g. Death Penalty is acceptable if done by electric chair or leth al injection. But if it is done through musketry or dismembering the body parts of the convict, then that is considered cruel, degrading and inhuman, the pract ice being not acceptable to social norms. 4. INDEFINITE IMPRISONMENTS People vs. Dacuycuy The Magna Carta for public school teachers penal provisions provide the fine of P100-P1,000 or imprisonment in the discretion of the court. According to the SC , such provision is questionable because it allows the judge to fix the penalty of imprisonment without certain limits. Whereas the law allows the delegation o f powers to a certain body or agency, the delegation must be limited by sufficie nt standards. If the law allows the judge to impose penalty of imprisonment bas ed on his own discretion, that makes the law unlimited or without standards, mak ing it constitutionally repugnant to the so-called indefinite imprisonment. AFFIRMATIVE RIGHTS 1. Free access to the courts(also quasi-judicial bodies)-includes the appointm ent of counsel de oficio and legal aid programs 2. Protection and enforcement of constitutional rights 3. Compensation to and rehabilitation of victims RA 7309-This act created a Board for claims of compensation for unjust imprisonm ent and for victims of tortures. One unjustly imprisoned enloys a benefit of P1 ,000 for evry month of imprisonment but in no case shall the entire claim be mor e than P10,000.

RA 7438-This expanded the rights of persons under the Miranda rule. Whereas be fore, assistance of counsel is only given to those under custodial interrogation , under this law, the Miranda warnings and the Miranda rule is afforded to the person as soon as he is arrested. Affirmative rights further includes the rule-making power of the SC and the powe r of the Commission on Human Rights to enact legal measures for the protection o f human rights. LIBEL If libelous statement relates to official function, truth is a defense. The burden is with the public official to prove that the statement is false. And that ,statement is false when it contains actual malice which are: 1.made with knowledge of its falsity 2.there was reckless disregard whether its true or not (there s disregard if it di d not validly verity the source). However, malice is not presumed in certain circumstances: 1. private communication made by any person to another in the performance of any legal, moral or social duty. 2. fair and true report made in good faith, without comments or remarks of any j udicial, legislative or other official proceedings not confidential, or 3. any statement, report or speech in such proceedings or of any other act perfo rmed by public officers in the exercise of their functions. For true and fair reporting made in good faith, actual malice must be proven. I n the circumstances enumerated supra, malice is not presumed even if the stateme nt is defamatory. Defamation is any statement which would cast doubt on his preson, a mistake, a d efect on the living or the dead, is considered libelous.

RULE ON LIBEL AGAINST PUBLIC OFFICIALS ==> SC said that if the expression is directed towards a high government officia l, the said statement must be understood in consideration of the various perspec tives, when and how it was made. It simply means that if a statement is ordinarily considered as defamatory if di rected against a private individual, the same should not be taken as such if dir ected against a high government officers. The reason for this is that government official/employee, being in the public li ght, are normally open to accusations, unjust or unreasonable at times. However, just like any other freedom of expression, it does not allow malicious distortion of half-truth which would tend to discredit or dishonor the governmen t official. Meaning, if the statement, even if defamatory, is true, if there is no malicious distortion of what is false or half-truth, the statement will be c onsidered as guaranteed under the freedom of expression. ==> Published articles which allegedly contain a defamatory statement must be ta ken in context and not out of context. The entire publication must be considere d and viewed, not the words alone alleged to be defamatory. If we take the allegation of Beltran regarding the allegation that Pres. Corazon Aquino hid under the bed at the height of the coup attempt, that should be take

n in its entire perspective. because it may happen that the statement is made t o provoke debate (as termed by the SC), rather than to put to shame a certain publ ic feature. That is included in the guarantee of the freedom of expression. Manuel vs. Cruz Pao An article was published entitled Tourists Sue Agents and Officials . The article was likewise submitted to the chairman of ASCC at Camp Aguinaldo. This was the basis for the libel charge.

==> SC said that media practitioners should be given sufficient lee-way to discu ss issues which include the conduct of government functionaries. Government functionaries are accountable to the people and for which they are su bject to the right of complaint and criticism by any citizen every time such dut y or obligation is performed. It simply means that, if government officers are not doing their function, it is not a mere right of the public to complain but an obligation to bring to the public what has been done by the public officer in relation to his public function. Since it is an obligation and not a mere rig ht, any discussion by reason of the performance of official function is guarante ed under the freedom of expression. According to the SC, the seals of public ser vice are imputable not only to those who commit them but also to those who, by t heir silence and inaction, permit and encourage their commission. So, if public officers are subjected to accusations, it is based on that obligation, if there is any irregularity in the performance of their duties.

* Libel directed at a certain class or group Newsweek Inc. vs. IAC The article is Island of Fear: Negros Occidental . Defamatory statements directed at a class or group can only be actionable if: 1. The statement is so sweeping that it applies to everybody 2. It is sufficiently specific, so that each individual in the group or class ca n prove that the statement specifically points to them. This is based on the principle that, in libel, the person defamed must b identif iable although not necessarily named. When a defamatory statement is made, but he person allegedly to have been defamed cannot be identified, it cannot be puni shed as libelous. Identification is not necessarily by name but at least by the circumstances of the allegation, the person defamed can be identified. That explains why in some entertainment sections of the newspaper, there are bli nd items. If from the clues, the person can be identified, then the person defa med can claim for damages.

* Libel and Freedom of Expression for Media Practitioners It is a matter of conduct in the media that they have to meet deadlines to come up with publications, news or stories. If, despite good faith, there are honest mistakes in the publication, either in choice of words or failure to ascertain the veracity of the statement, that cannot be considered as libelous.

But if it is a malicious assertion or distortion of falsehood, or reckless condu ct in the failure to determine or ascertain the veracity of the statements, it m ay be considered as libelous/defamatory. (Quisombing vs. Lopez) However, in the case of Lopez vs. CA, a different ruling was made because it was a feature story in a Sunday magazine, not a news article. It being a feature s tory, the feature writer has all the time to ascertain to ascertain the veracity of the source of the article, to check its truthfulness, before said article wi ll be published. Failure of the writer to do so constitutes reckless conduct, a nd therefore is subject to a civil suit for damage.

Espuelas vs. PP Espuelas was convicted under Art. 142 (scurrilous libel against the government) because he published his picture (posed as if he has committed suicide) with a s uicide note which says that he was displeased with the Roxas administration and the Huks in the Central Luzon; that the Philippine government is infested with H itlers and Mussolinis; and further taught the children to burn the picture of Ro xas. He was charged and convicted. Simply, SC said that while freedom of expression authorizes one to criticize the government, the criticism must be constructive and specific. Specific means, it must not be a wholesale attack on the entire government setup. If your problem is on the, say, Bureau of Customs, then you specifically attack the practices o f the customs personnel. Constructive in that the use of language must be tempered in order to inform th e people of what is really happening and not to create disturbance. It must be centered on persuading readers to inform them. Now regarding this national thin g, if the very existence of the government is at stake and the exercise of free speech is in such nature as it will threaten the very existence of the state, ch ances are, the SC will curtail such expression. But if it will not, it is consi dered under specific and constructive criticism designed more to inform or persu ade the public and not to create a disturbance.

Challenges to Restrictions on Free Speech: 1.Overbroad- law is overbroad if it sweeps unnecessarily broadly and invade in a rea of protected freedom 2.Vagueness- law which has no comprehensive standard so that people would differ as to its meaning.

CONSIDERATION FOR RESTRICTION

A.CONTENT-BASED RESTRICTION refers to the restriction on the expression itself, the word uttered and how it is uttered. Dangerous Tendency Test - this covers utterances which have a dangerous tendency to make the evil sought to be avoided happen. Under this test, mere tendency i s enough, present evil is not necessary. An example is the article eon Inciting to Sedition: under inciting to sedition, the restriction is on the utterances. If the utterances have the tendency to incite the people to commit sedition, and such is an evil which the state seeks to avoid, then it is a valid restricti on. Clear and Present Danger Rule (BAR) - the question is whether the words are use d in such circumstance and are of such nature as to create a clear and present d anger that they will bring about the substantive evil which the state has the ri ght to prevent. The emphasis is on the nature of the circumstances under which the utterances are made. Mere tendency is not to be restricted. Clear means th ere is a causal relation between the act to be prevented and the evil which the state has the right to prevent. Present means the danger that will result is no t only probable but inevitable. A classic example is shouting Fire!!! inside a pa cked movie house. Grave but Improbable Danger - whether the gravity of the evil, discounted by i ts improbability, justifies such an invasion of speech as is necessary to avoid the danger. Direct Incitement Test - this is related to the dangerous tendency test. The guarantees of free speech and free press do not permit the state to forbid or pr escribe the advocacy of the use of force or of the law violation except if such advocacy is directed to inciting or producing imminent lawless action and is li kely to incite or produce such action. Example, I encourage all the soldiers to join the revolutionary movement and rethink their positions in the military beca use this is the only way that true peace and justice can be achieved . This is a statement under this test. It can be attacked as not a protected speech becaus e he has incited the soldiers to join him in the revolutionary movement. Salonga vs. Cruz-Pano:there is a difference between advocacy of the use of force or law violation in an abstract manner and the advocacy of the use of force or law violation in such a manner that it will produce the evil which the state sou ght to prevent. If the incitement is only in the form of abstract teaching, it is part of protec ted speech; but if it is used in a manner that one encites people to commit lawl essness and there is a tendency that it will produce the lawlessness which one h as been advocating, that will not be covered by protected speech. In this case, what Salonga used was abstract teaching. He said that There is a likelihood of a violent struggle here in the Philippines if reforms are not instituted . He did not incite the people to commit a violent struggle but he merely said there is a likelihood of a violent struggle.

Balance of Interest - The court must undertake the delicate and difficult task of weighing the circumstances and appraising the substantiality of the reasons advanced in support of the regulation of the free enjoyment of the rights. This is normally used if there are two conflicting rights under the Constitution. The most common is the right to privacy vs. the right to free speech. S

o, if there are conflicting rights against freedom of expression, there will be a balancing of interests. However, the rule is, it does not involve crimes or the security of the state. If the exercise of expression normally involves the security of the state, there will be no balancing of interests. What will be us ed is either dangerous tendency, clear and present danger, or maybe direct incit ement test. But if the freedom of expression is up against other rights other t han the security of the state (e.g. right to privacy), the balancing of interest s test will be used

B.CONTENT-NEUTRAL RESTRICTION refers to circumstances under which the expression is made. It is embodied in t he Public Assembly Act of 1980, B.P. 880. One has to get a permit before one ca n use the streets for purposes of exercising his freedom of expression. O Brien Test A government regulation is sufficiently justified if: 1. it is within the constitutional power of the government; 2. it furthers an important or substantial government interest; 3. the governmental interest is unrelated to the suppression of free expression; 4. the incidental restriction on alleged freedom of expression is no greater tha n is essential to the furtherance of that interest. Restrictions are not based on the appearances but on the circumstances by which the freedom of expression is made; if there is an important or substantial gover nment interest and it is unrelated to the suppression of free speech, and finall y, the restriction is no greater than what is essential for the furtherance of t hat interest, that content-neutral restriction is allowable.

1.

Regulation of Political Campaign

Comelec Time and Comelec Space It restricts freedom of expression. However, the limitation is not greater than the government interest to allow equal opportunity to all candidates. The restriction is print or broadcast media can only allow political acts in th e so-called Comelec time and space. It is not too general nor too limited. Sec ondly, it does not restrict one s opinion of a candidate. It does not cut the flo w of media reporting and there is a valid objective and sanction.

2.

Freedom of Association and the Right to Strike in the Public Sector

Art. III Sec. 8: The right of the people employed in the public or private secto r to form union and association for purposes not contrary to law shall not be ab ridged. Art. IX, Sec. 2 (5): right to self-organization Art. III, Sec. 3 (2): right to strike in accordance with law E.O. 180: includes the right to form association 2006 notes: constitution gives person right to associate but latter has no right to have legal personality or be registered (since it is a privilege) 2006 notes: a person has a right to join or not to join (except if there is a cl ose shop agreement however, if such person invoke freedom of religion then even the close shop agreement is not operative against him so he still have right not to join) 4blue 95 notes: example you are a homeowner of these exclusive Garden Village (w here 4blue 95 lives there are many 4blue s who live in that village), you could not invoke invoke right not to join association since being a homeowner of such excl usive village you have to pay monthly dues. However, an exemption to such is when the village rules would state that you may have option not to become a member. 2006 notes:Always remember that the Bill of Rights can only be invoke against th e state.

3.

Radio Broadcast

Eastern Broadcast Corp. vs. Dans This case delineates the so-called freedom of expression as exercised in all for ms of media. The first principle: it guaranteed in all forms of media. Limitat ion is allowed under clear and present danger rule. The freedom of expression in TV and radio is limited than that in newspaper , pr int media and movies. Why? * accessible to children * regarding national security consideration, it reaches to the remotest area * lesser opportunity to analyze or reject the utterance 4. Freedom of Assembly Public Assembly Act of 1985 (B.P. 880) It does not restrict or limit the utterances but rather the circumstances under which the utterances are made. A public assembly includes anything except: 1.processions, rallies, parades, demo, public meetings and assemblage for religi ous purposes. So, even if in the Holy Week the Catholics used the streets for the station of t

he cross, they do not have to get a permit because it is not part of the contemp lated public assembly. 2.Picketing and other concerted actions in strike areas by workers or employees resulting from a dispute under the Labor Code So, if there is a strike of workers and they occupy the street with banners, th ey may not get a permit, because that is not a public assembly as defined by law . In Nestle v Sanchez:This refers to the picketing in front of the gates of Suprem e Court involving their petition against Sec. Sanchez. SC said that no demos or pickets intended to pressure or influence the courts shall be allowed within t he premises of the Court. Although the SC in this case did not limit the exerci se of expression as to the utterances made, what they limit was the circumstance s under which the expression was exercised. That is, they could not put up pic kets very near the SC so as to influence its decision. 3.Political meetings or rallies held during election campaign When is a Permit Required and When Not Required (Sec. 4) * As a rule, if a public place is used, a permit is required. However, if what is used is the freedom park duly established by law or ordinance, no permit is n ecessary. In Bayan v Ermita (2006 case) the SC gives local governments a deadline of 30 da ys within which to designate specific freedom parks as provided under BP 880. An d that,if after that period, no such parks are so identified ,all public parks a nd plazas of the municipality/city shall in effect be deemed freedom parks ,no p rior permit of whatever kind shall be required .The only requirement will be wri tten notice to the police and the mayor s office to allow proper coordination and orderly activities. * If the assembly is to be held in a private place, no permit is required, only the consent of the owner. * If it is an educational institution, permit must be obtained form that institu tion, i.e., government owned or operated educational institution. In private ed ucational institutions, no need for permit for so long as you do not disrupt reg ular school activities. * Non-Interference by Law-Enforcement Authorities. * If there is a public assembly duly permitted, law-enforcement agencies cannot interfere with such activities except if they are at least 100 meter away from t he area of the assembly. The basis of requiring permit is the fact that others belonging to the public wo uld also use this public places.there must be reasonable notice to the local gov ernment in such intended activity in order that they may make some adjustments. Ex: re-route the traffic, explain to the public why the streets are closed. Al so to provide some form of security in case. On the case of Primicias v Fugoso: The problems before regarding the securing o f permit is that, the mayor will not act on it. And granting the mayor will act on it, the mayor will send the notice by ordinary mail. Under B.P. 880 now, the procedure under sections 4 and 6, are such that the appl icant is given sufficient time to know the results of the application. If the a pplication is adverse, the applicant has the right to file and application befor e the court so that the permit will be secured in time for the intended assembly . Arreza vs. Gregorio Araneta University Foundation: This refers to the refusal of

admission to students who participated in militant rallies before inside the sc hool.SC said freedom of expression of students are likewise guaranteed. Freedom to express their views are not left when they enter during school days, they br ing it with them. This is however without prejudice to the taking of action for conduct which materially disrupt classworks or involves substantial disorder or invasion of the rights of others. If you don t commit any of these, you cannot b e penalized by dismissal depending on the gravity of the case. That does not aut omatically give the school the right to expel him. In Bayan v Ermita (2006 case): SC ruled that in view of the maximum tolerance ma ndated by BP 880, the Calibrated Pre-emptive Response (CPR) that was in force by Secretary Ermita has no place in our legal firmament and must be struck down as a darkness that shrouds freedom. What is to be followed is and should be that m andated by BP 880 which is Maximum Tolerance (which means the highest degree of restraint that the military,police and other peace keeping authorities shall ob serve during a public assembly or in the dispersal of the same) FREEDOM OF RELIGION Art. III, Sec. 5. No law shall be made respecting the establishment of religion or prohibiting the free exercise thereof. The free exercise of religious profe ssion and worship without discrimination or preference shall forever be allowed. No religious test shall be required for the exercise of civil or political rig hts .

2 CLAUSES IN FREEDOM OF RELIGION:

1.Non-Establishment Clause: Test for Allowable Aid to Religion (Lemon v Kurtz) a.statute must have secular legislative purpose b.principal or primary effect is neither one that advances or inhibits religion. c.it must not foster government entanglement with religion. On the case of IDCP v Office 405 Scra 497: the classifying of food product as ha lal is a religious function because the standards used are drawn form the Quran and Islamic beliefs. By giving the OMA the exclusive power to classify food prod ucts as halal ,EO 46 encroached on the religious freedom of Muslim organizations to interpret for Filipino Muslims what food products are fit for Muslim consump tion. In absence of immediate and grave danger to security and welfare of the c ommunity, the state cannot justify the infringement of religious freedom. 4blue 95 notes: Government are not allowed to intrude unduly on matters of an ec clesiastical nature. The expulsion/excommunication of members of a religious ins titution is a matter best left to the discretion of the officials of such instit ution.

2.Free Exercise Clause (used if there is COMPULSION) a. belief cannot be restricted ( Freedom to believe is absolute) b. but the moment you act according to your belief then that can be restricted ( Freedom to act is not absolute) 2006 notes: once compulsion exist, clear and present danger rule is used.

RELIGIOUS DISPUTE: 1.between Religious Group: state cannot interfere except if there is clear and present danger 2.among members of same group: if non ecclesiastical (like where property is inv olved) court may interfere but if it is ecclesiastical ,then courts cannot inter fere. 2006 notes:An ecclesiastical affair is one that concerns doctrine ,creed or for m of worship of the church or the adoption and enforcement within a religious as sociations of regulation for the governance of the membership and the power of e xcluding from such association those deemed unworthy of membership. 2006 notes: if case involves purely secular matter like employer and employee re lationship, the court may interfere (in this case, the NLRC may interfere)

LIBERTY OF ABODE

& RIGHT TO TRAVEL

Art. III, Sec. 6: The liberty of abode and of changing the same within the limits prescribed by law, shall not be impaired, except upon lawful order of the court . Neither shall the right to travel be impaired, except in the interest of nati onal security, public safety or public health as may be provided by law. 1.Liberty of Abode: restricted only by : Congress and Court

The liberty to choose where you want to live or reside in the country and to cha nge your residence in the country can only be impaired upon lawful order of the court. For example, one penalized with destierro cannot enter a certain place. Or one on probation cannot change his residence without the approval of the cour t.

2.Right to Travel:

congress and court may restrict it if it s a person who is facing a criminal case and are in bail. Executive and executive officials may restrict it(even without court order) only on the basis of national security ,public health and public safety .outside of this enumeration, such right cannot be impaired without court order. Right to travel does not include the right to return.

RIGHT TO INFORMATION Art. III, Sec. 7 The right of the people to information on matters of public con cern shall be recognized. Access to official records, and to documents and pape rs pertaining to official acts, transactions or decisions, as well as to governm ent research data used as basis for policy development, shall be afforded the ci tizen, subject to such limitations as may be provided by law Limitations: 1. National security 2. Trade secrets 3. it also does not mean you get the information for free. If there is a reason able amount to be paid in getting the documents, you should pay. Valmonte vs. Belmonte According to the petitioner, the members of the Batasang Pambansa have entered i nto contacts which are injurious to the public as these contracts did not consid er the actual valuation of the property. In order for him to determine whether there is such contract existing, he has to get the contract. But the GSIS manag er Belmonte did not want him to get copies. The discussion in this case was freedom of information as part of freedom of exp ression, i.e., how can we form intelligent opinion on public concerns if we have no access to the documents pertaining to them. 2006 notes:constitution only allows access, so as long as it is reasonable time to access it and can even photocopy it but cannot demand from government to give you copy.

Garcia vs. BOI According to the SC, trade secrets, confidential information are not included in the right to information

2006 notes: right to information cannot be availed if government is still on a b idding stage of a certain contract,but one it decided whose bid to accept, then right is now applicable. 2006 notes: access to official records can only be availed of by citizens (so al ien di pwede!) NON-IMPAIRMENT OF CONTRACTS Art. III,Sec 9: Non-Impairment of Contracts 2006 notes: this means that contracts cannot be impaired or revoked. When is Contract Impaired: 1.law changes time or mode of performance 2.imposes new conditions 3.dispenses with those expressed 4.authorizes for its satisfaction something different: 2006 notes: A permit/license is not contract ,so it can be revoke. 2006 notes: A change of procedural matters in a contract do not impair contracts , like the old practice of loan sharks collecting directly from payroll, now ,th e new rule states that payroll can only be remit by the employees themselves and not by the loan sharks ,and such rule do not impair the contract of debt of the employee to the loan sharks. 2006 notes: police power (zoning ordinance), eminent domain ,taxation and freedo m of religion are superior than contracts. 2006 notes: impairment of contract cannot be invoke against a statute or ordinan ce (even barangay ordinance) and that such is not a quasi-judicial act. SEARCH AND SEIZURE General Rule: Search and seizures are unreasonable UNLESS authorized by a validl y issued search warrant or warrant of arrest Search Warrant (Rule 126, Rules of Court) - An order issued by a judge in the name of the Republic addressed to a peace of ficer commanding him to search and seize personal property and bring them before the court. (Only to a peace officer, not ordinary citizen unlike in arrest warr ant). - An order in writing issued in the name of the people of the Philippines, signe d by a judge or a justice of peace and directed to a peace officer, commanding h im to search for personal property and bring it before the court.

REQUIREMENTS FOR SEARCH WARRANTS Art. III, sec. 2 ... No search warrant or warrant of arrest shall issue except up on probable cause to be determined personally by the judge after examination und er oath or affirmation by the complainant and witnesses he may produced, and par ticularly describing the place to searched and the persons or things to be seize d. 1. Probable cause;

- such fact and circumstances as would reasonably lead a prudent man to believe that a crime has been committed and that the documents/things sought to be seize d or searched is in the possession of the person against whom the warrant is iss ued. * This means that there is no case yet, unlike in WA where a case is already fil ed. * Determination of probable cause is a personal determination literally by the j udge means he will conduct the questioning himself, unlike in WA where the determi nation of probable cause is limited to personal appreciation of the documents (s ubmitted by the Prosecutor). What constitute facts and circumstances? Confidential Information./Intelligence reports which must be corroborated by act ual facts. 2006 notes:Minimum requirement is determination of probable cause by the searchi ng officers that a search of a moving vehicle must be conducted. No police offi cer is authorized to ordinarily flag down a vehicle to conduct a search. Determ ination must be before the search.

2. Determination personally by the judge; 3. Examination under oath or affirmation by complainant/witnesses; 4. it must particularly describe the place to be searched and the persons or th ings to be seized. 5. Probable cause be in connection with one specific offense. (Rule 126) 6. It must not have been issued more than 10 days prior to the search made purs uant thereto (effective only for 10 days). Note: Effectivity of Warrant of Arrest is not limited. It is effective until the person is arrested. Preliminary investigation- A preliminary questioning conducted by the prosecutor s office to determine whether or not a case should be filed against a person.

Scatter Shot Warrant - A warrant issued for more than one specific offense. Exception: Evidence in plain view, i.e., evidence of illegality is immediately a pparent.

EXAMINATION OF AN APPLICANT FOR SEARCH WARRANT; REQUISITES (Rule 126 sec. 4): 1. Must be in the form of searching questions and answer;

It is not for the judge to ask You are here to apply for a warrant. And the applican t answers yes; You are applying because there are firearms illegally possessed in the house of Mr. X. Yes . This kind of questioning is not allowed. The judge must pro be deeper into the veracity of the allegation or narration of the applicant. 2. Judge must conduct the questioning personally- it cannot be delegated; Bache V. Ruiz: Judge Ruiz assigned the Clerk of Court to examine the applicant/w itnesses. The questions and answers were reduced into writing and the transcrip t was read to him. He asked the applicant if all those information stated are co rrect and the applicant answered yes. Judge Ruiz then issued the search warrant. Held: Issuance was not valid. The judge must personally conduct the examination in the form of searching questions. Even if the judge personally determined the existence of probable cause as the transcript was read to him; he asked the app licant if what was stated were correct; and he was satisfied that probable cause existed; still it was invalid because it was personally conducted by the clerk and not the judge. 3. It must be under oath or affirmation; 4. It must be in writing; 5. Facts testified to by applicant and witnesses if any, must be based on perso nal knowledge; * It could not One of my men told me that Pakung is keeping drugs in his house. I n this case, let your men apply since they were actually there and who actually saw what were kept in the house. They have personal knowledge. * Without personal knowledge, the warrant is illegally issued. * Test: liability for perjury and damage if statements turn out to be untrue. P ersonal knowledge is required because if the narration of facts are untrue the a pplicants may be charged for perjury. Otherwise, one cannot be charged for perju ry since he merely relied on what his men knows. Thus, if it is based on personal knowledge and later proved to be untrue, those who testified will be charged for perjury. 6. Examination in writing & under oath must be attached to the records of the c ase, including all the sworn statements or affidavits submitted by the applicant , complainants and witnesses if any.

Pasion V. Locsin Facts: The applicant stated in his application that there is probable cause that Pasion was keeping in her house documents which are sought to be seized. Based on that assertion, the judge issued the warrant. Held: The issuance was illegal. The determination of probable cause is left in t he judge discretion. It is not for the applicant to assert during the examinatio n that probable cause exists. What is required of witnesses is to narrate facts which would constitute the finding of probable cause by the judge. Burgos Sr. V. Chief Of Staff Facts: Col. Abadia and 2 witnesses applied for a warrant based on evidence gathe red and collated by his unit. The evidence clearly shows that documents are bein g kept and use for subversive purposes. Held: Invalid application. What is required is proof of specific facts known to the applicant and the witnesses personally known and not what others have gathered .

PARTICULARITY OF THE DESCRIPTION OF THE PLACE TO BE SEARCHED AND THE THINGS TO B E SEIZED This is to prevent the issuance of a general warrant or a roving commission as referred to in the case of Stonehill vs. Diokno. In relation to the inviolabilit y of right to be secure in our persons, houses, papers and effects, state intrus ion is allowable under reasonable searches and seizure by virtue of a warrant wi th particularity of description.

1.PLACE TO BE SEARCHED: Description of the place is sufficient if the officer with the warrant can, wit h reasonable effort, ascertain and identify the place intended to be searched. Rules on Description of the Place: a.if place is under control of 1 person ,a general description is sufficient b.if place is a compound (occupied by 2/more persons like a boarding house or co ndo unit) the warrant must specifically indicate the place to be search. c.police can only search the place described in the warrant, not an adjoining on e. If it is designated in the warrant that the place to be searched is 143 San Ped ro St., you can only validly search 143 San Pedro. Suppose there was a mistake i n the designation of the place, a typographical error perhaps. Instead of 143 Sa n Pedro, what appeared in the warrant was 144? If search was actually made at 143 San Pedro, it is valid because by reasonable effort the place really intended could be ascertained and identified. After all, you have personal knowledge of the facts and you knew there was an error. If search was made on 144 San Pedro, it is illegal. The warrant was issued based on the personal knowledge of facts that illegal activities are being conducted at 143 San Pedro. Just because it designated 144 you should searched 144 instead of the place intended which is 143. d.once the place is specifically described, there is no need to name the occupan t or owner.

2.THINGS TO BE SEIZED

Rules on Things to be seized: a.objects need not be described in precise details b.minor discrepancies in between the objects described in the warrant from those actually taken will not matter. c.where warrant contains specific description of some objects while other portio n contains general description, the entire warrant is not void (only the general description is voided) d.objects not specifically described in warrant but are considered contraband ma y be seized in plain view. BAR: X illegally searched the office of A and instead obtained evidences implica ting B. X want to make a legal search and applied before a judge asserting that he has personal knowledge that B kept illegal items in his office and particula rly describing the things to be seized. X was granted a warrant and searched B s o ffice. Held: The search was invalid based on the fruit of the poison tree doctrine. The basis for the issuance of the warrant were evidences gathered illegally. 2006 notes: it is a new rule that when you want to secure firearms or search the place of such firearms, you have to go to the department who has the authority in issuing such license of firearms have their certification before securing a w arrant from the judge. Without such certification, the determination of the judg e is null and void. ONE SPECIFIC OFFENSE The warrant must be issued in connection with one specific offense. If not conne cted to one specific offense then it is void.

What constitutes one specific offense? If the warrant states there was a violation of PD 1866 (Ammunition and Explosi ves), it is invalid unless there is a recitation in the warrant of the specific violation.

What may be seized? Rule 126, sec. 2 specifies only personal properties:

1. Subject matter of the offense; 2. Stolen/embezzled or other proceeds or fruits of the offense; 3. Items used or intended to be used as a means of committing an offense.

Rules on One Specific Offense: a.when related offenses are punished by different provisions of same law, issuan ce of single warrant is justifiable People V. Dichoso Facts: A warrant was issued to search the house of the Dichoso spouses for all eged violation of the Dangerous Drugs Act possession of shabu, marijuana and parap hernalia. NARCOM agents raided a nipa house w/in the compound in the address sta ted in the warrant and found shabu, marijuana and paraphernalia. Defendants sought to quash the warrant on the ff. grounds: 1. General warrant: warrant was denominated as violation of DDA. 2. General warrant: It charges more than one specific offense possession of shabu , marijuana and paraphernalia. 3. Petitioner alleges that he does not own the nipa hut and therefore evidences seized therein should not be admissible against him. Held: 1. Body of the warrant is controlling rather than the denomination. Even i f the heading states for violation of DDA if the body mentions the specific offe nse although not named by specific provision, it is sufficient. 2. The possession of shabu, marijuana, and paraphernalia are subsumed into one class or category. 3. Ownership of the property to be searched or things to be seized i s not important. What is important is effective control over the property.

b.where there are several counts of 1 specific offense, issuance of 1 search war rant is sufficient.

2006 notes:Only a judge can issue a warrant. In Presidential Anti-Dollar Saltin g Task Force v. CA, SC ruled that only judges can issue a warrant. A Task Force is authorized to prosecute violators of anti-dollar salting laws. Their interes t is to have a conviction. Thus they could not approximate the impartiality and neutrality of a judge. Exception: Warrant issued by the deportation Board.

Columbia V. Flores:A warrant was issued for the violation of anti-piracy law, th e law protecting intellectual property rights. Columbia Pictures sought the assi stance of NBI on alleged piracy of their films (retaping, selling). NBI conducte d surveillance and based on this surveillance was able to acquire a warrant. The things seized were TV sets, video cassette recorders, tape cleaners, rewinders which were included in the warrant. Respondent filed a motion for these items to be released. Held: The warrant was voided. TV s, rewinders, cleaners, etc. Are normally found i

n video stores. It is part of legitimate business, not necessarily connected wit h piracy of films. It is void because the description of items were too general. Items seized must used or are used in connection with the crime for which the w arrant was issued. Since there is no allegation that said items are used in conn ection with the offense, it makes the warrant too general. VALID WARRANTLESS SEARCH 1. Search made as an incident to lawful arrest A. An officer making an arrest may take from the person arrested: i. Any money or property found upon his person which was used in the commission of the offense or ii. Was the fruit thereof or iii. Which might furnish the prisoner with the means of committing violence or e scaping or iv. Which may be used in evidence in the trial of the case B. The search must be made simultaneously with the arrest and it may only be mad e in the area within the reach of the person arrested (immediate control) 2006 notes:If an arrest is validly affected, a search without a warrant on the p erson and within the vicinity where the suspect has immediate control is valid. Immediate vicinity is included because if the search is limited to the person of the accused, he might just throw the evidence away. But search is invalid when arrest was made in a room and search is effected in another room where the accus ed has no effective control.

2. Seizure of goods(only dutiable and prohibited goods) concealed to avoid custo ms duties/authorized under the Tariffs and Customs Code A. Conducted by persons having police authority under the Tariff and Customs Cod e . B. Searches under this exception include searches at borders and ports of entry. Searches in these areas do not require the existence of probable cause C. Exception: A search warrant is required for the search of a dwelling house. D. You cannot go to regular court to quash the seizure, the only remedy is to go to the Court of Tax Appeal. 2006 notes: Philippine Airforce can also search. 2006 notes:President of Philippines may order arrest of alien but cannot issue search warrant (it is only the judge)

3. Seizure of evidence in plain view (while the person is committing, will comm it or has committed a crime) For Plain View to apply: (1)officer has prior justification of intrusion or in position from w/c he can v iew a particular area (PANDAMAY DOCTRINE) (2) discovery must be inadvertent(accidental) (3)it is apparent to officer that item is subject to seizure(meaning ,hindi naka lagay sa box na kelangan pang buksan) 2006 notes: Checkpoints is search in plain view: as long as the vehicle is neith er searched nor its occupants subjected to a body search and the inspection of t

he vehicle is limited to a visual search = valid search (Valmonte V. De Villa), however, once the guard saw an illegal object ,then ,they could arrest the perso n and conduct an extensive search incident to lawful arrest.

4. Waiver of right 4blue 95 says that failure to object is waiver but such premise is applicable on ly to moving vehicles, and that with regard dwelling or residences , silence of the occupant is not a waiver but mere objection. Requisites of a valid waiver: The right exists. The person had actual or constructive knowledge of the existence of such right. There is an actual intention to relinquish such right. The right against unreasonable searches and seizures is a personal right. Thus, only the person being searched can waive the same. Waiver requires a positive act from the person. Mere absence of opposition is no t a waiver. The search made pursuant to the waiver must be made within the scope of the waiv er. 5. Search of moving vehicles This exception is based on exigency. Thus, if there is time to obtain a warrant in order to search the vehicle, a warrant must first be obtained.The search of a moving vehicle must be based on probable cause. People V. Lo Ho Wing:A tip was received in July of illegal activity of the accus ed, in August a confidential undercover agent was able to infiltrate and was ask ed to accompany the accused to china to acquire shabu. These info. were all rela yed to the unit head. Upon arriving from China, the agent together w/ the accuse d boarded a taxi, the police gave chase and eventually overtook the taxi. A sear ch and then arrest were conducted because shabu was found contained in tea bags. Accused now assails the validity of the search. Held: 1.It was a valid search on moving vehicle. It is required in securing a warrant that the applicant and or witnesses must be present to be examined personally by the judge to determine probable cause. In this case, the undercover agent who h ad personal knowledge could not testify, because of the time frame from July to October. It seems there was sufficient time, however, the agent was with the acc used. 2.As to the particularity of vehicle to be used, they cannot be sure whether or not the accused will take a taxi. Even if they knew, which taxi? 3. Probable cause: reports made by the agent and the fact of the chase leading to the search and arrest. People V. Bagista:An information was received at 8 AM that a certain woman about 23 years of age, height about 5 3 or 5 2 and has curly hair would be transporting marijuana from the Cordilleras. At 11 AM a checkpoint was set up by members of t he PNP, at 3 PM a bus was stopped and inspected. A woman fitting the description given was on board. A search was conducted. A bag on the lap of the woman was s

earched and found to contain marijuana. Held: This is a search of a moving vehicle, valid. Minimum requirement of probab le cause was present. First, because it was based on the information and that th ere was in fact the woman fitting the description. The exception regarding movin g vehicle must always comply with the minimum requirement of the existence of pr obable cause. On admissibility, accused only questioned the admissibility of the evidence when it already reached the SC. People V. Exala:A search was conducted on a checkpoint, a private jeep boarded b y accused was stopped for routine inspection. Police asked whether there was a g un, They answered no. The police then tried conducted visual search by beaming a flashlight in the back seat. A bag was seen with the sides bulging. When the po lice asked what was inside the bag, nobody answered. Instead they became fidgety . So the bag was ordered to be opened and was found to contain 2 kilos. Of marij uana. While this was happening, there was no protests. Held: 1. They did not protest so it was an admission by silence. In stop and sea rch situations, after the search, the vehicles are allowed to pass. However, if there exist some facts or circumstances which would lead them to determine the existence of probable cause to conduct a more extensive search, then it is allo wed. 2. Probable cause: The bag with the bulging sides; nobody answering when questioned; and the three becoming fidgety arousing suspicion of the police. 3. They were arrested because they were actually committing an offense transportin g marijuana, a violation of RA 6425 (DDA).

Aniag V. Comelec: Comelec issued resolutions for implementation of gun ban duri ng the election period in preparation for the coming election, as well as the au thority for the comelec to establish checkpoints. Consequently, the Congress ser geant-at-arms ordered the return of 2 firearms issued to Aniag. In compliance, A niag ordered his driver to pick up the guns at his residence and deliver the sam e to the sergeant-at-arms. PNP established a checkpoint 30 meters from the Batas an Complex, so when the car passed by, it was flagged down. The car was inspect ed and an extensive search conducted. The trunk was opened and a bag was found c ontaining guns neatly packed in their cases. The driver was apprehended and a ca se was filed for violation of the Resolution and PD 1866. Held: In searches made of moving vehicles, extensive search can only be done if there is existence of probable cause. Probable cause is case to case basis. In t his case, SC ruled that there was no need to conduct a more extensive search. Th e driver was not acting suspiciously. He did not become fidgety. The guns were n ot even hidden, they could not either be seen by mere visual search They have to open the trunk and the bag for the guns to be apparent. No probable cause. 6. Consented Search 4blue 95 says that it is limited only to search of residence. Therefore,since it is a resident ,the consent must be express (and not by mere silence), and that the consent must be given by the person whose right has been violated (so it is the owner of the house and not the maid) 4blue 95 notes: if consent is given to 1 object and that search of another objec t was conducted, then ,such is not a valid search. 4blue 95 notes: if 2 person are occupying such residence, and that 1 of the 2 o ccupants objected to such search, then , such search is not valid.

7. Stop and Frisk (TERRY Rule) Police will stop a person and search him. And such act of the police is justifia ble if the person being searched is ACTING SUSPICIOUSLY. 4blue95:looking from left to right and holding stomach is not acting suspiciousl y 4blue 95 notes: report itself is not a valid ground to stop and frisk a person ( so person cannot be stop and frisk based only on a report) 4blue 95 notes: however, if such report constitutes that such person to be searc hed is not walking but it is riding or is a passenger of a moving vehicle then s uch report is valid. And that, such scenario would fall to a search of moving ve hicle (but there must be a specific description of the person like he is wearing red t-shirt and carrying a green bag)

8. Exigency (applicable only in times of emergency like coup d etat) 9. Airport security (due to gravity of interest involved) 10. Prison search (whether inmate or visitor it is subject to search) 11. Search conducted by Private Individual (like a security guard) 4blue 95 notes:always remember that Bill of Rights cannot be invoke as against i ndividual like a security guard.

Rules on Territorial Jurisdiction: 1.any court within whose territorial jurisdiction the crime was committed may issue warrant. 2.for compelling reasons stated in application, any court within judicial region where crime was committed or where warrant shall be served (so such is valid in the whole region 11 if the judge who issued it belongs in region 11) 3.any court ,subject to the requirement of territorial jurisdiction can issue an y warrant for any offense. ( so like MTC, although it has no jurisdiction to iss ue warrant with regard prohibited drugs, but since its located on their place , then ,they may issue it.)

2006 notes: evidence obtained in the following sections below is not admissible in any court of law (exclusionary rule): Sec 2 : search and seizure Sec 3 : privacy to communication Sec12: custodial investigation Sec17: right against self-incrimination

2006 notes: in stonehill case, the evidences seized on the residence of stonehil l and from his corporation can be used against stonehill but not against the cor poration since stonehill is a natural person therefore it is his right that was violated and not that of the corporation, and that always remember that the bill of rights cannot be invoke against private individuals.

ARREST Instances When a Warrant of Arrest may be Issued, Rules (Sec. 6) 1.those issued by a Regional Trial Court judge - must be upon the filing of the information 2.Warrants of Arrest issued by an MTC judge: 1. When the MTC judge receives the information in the exercise of original juris diction, and the case does not fall under the rules of summary procedure, the ju dge shall issue the warrant upon the filing of the information. 2. If the case falls under the rules on summary procedures, the MTC judge cannot issue the warrant upon the filing of the information unless subsequently, the a ccused refuses to comply with any order of the court or is a recidivist or habit ual delinquent 3. When an MTC judge conducts a preliminary investigation (here, he performs the task of a prosecutor), a warrant of arrest is not normally issued. It is only issued when 3 requirements are satisfied (Tamonde vs. Salvani): a) examination under oath and in writing b) the form of searching questions and answers that probable cause exists c) there is a necessity to place the respondent under immediate custody in order not to frustrate the ends of justice (A preliminary investigation is a proceeding conducted by the fiscal for cases f alling under the jurisdiction of the RTC. In non-chartered cities, the prelimin ary investigation is conducted by the fiscal or the MTC judge) Note: Searching questions and answers are only required when an MTC ju

dge conducts a preliminary investigation and there is a need to place the respon dent under immediate custody in order not to frustrate the ends of justice. When is the appropriate time to issue a warrant of arrest in order not to frustr ate the ends of justice? Pangandaman vs. Kaza illustrates the stages of preliminary investigation by an M TC judge: 1) the determination by the judge based on the affidavit-complaint as well as th e supporting documents that there is a charge; if none, dismiss the case 2) requirement of counter-affidavit on the part of the respondent based on these two stages, the judge will determine if there s a need to hold resp ondent for trial, in which case, the MTC judge will have to eventually file the information before the RTC, and the RTC will issue the warrant of arrest In this case of Pangandaman, SC said that it is not required that the two stages be completed before the MTC judge may issue the warrant of arrest in order not frustrate the ends of justice. If during the first stage there is a necessity to place the respondent under cus tody so that the ends of justice will not be frustrated, the warrant may be issu ed. But it is nevertheless required that there be examination, under oath, in w riting, searching Q & A in complainant and witnesses that there is a necessity t o place the respondent under immediate custody in order not to frustrate the end s of justice. Further, the judge here issued 50 John Doe warrants. SC declared that as null and void., because there s no particularity of the person to be arrested. For the issuance of a warrant of arrest:Probable cause refers to such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed by the person sought to be arrested.

Personal Determination Of The Existence Of Probable Cause By The Judge Personal - characterized as the exclusive and personal responsibility of the issu ing judge to satisfy himself as to the existence of probable cause. Probable Cause in Issuance of Warrant of Arrest - facts and circumstances which would lead a reasonable man to believe that the person has committed the offense and that he must be held in custody to answer for the charges. Modes of Personal Determination by the Judge (Beltran vs. Makasiar) -for cases tried in the RTC where it has already undergone a preliminary investigation

IN RTC LEVEL: In determining probable cause after the information has been filed by the fiscal , the judge may: 1.Review the certification of the fiscal, with attachments or supporting documen ts - this requires personal review by the judge of the findings of the fiscal

- the task of reviewing should not be assigned or delegated to another The judge cannot rely on the certification of the fiscal alone. He must go over the documents which were the basis of the certification by the f iscal. If the documents are not available, the certification by the fiscal is n ot enough to determine probable cause.

2.If by exercising the first option, the issuing judge has not found probable ca use, the judge should require the complainant to submit additional document/ af fidavit/evidence Note: There is no requirement for examination under oath and in writing in the form of searching questions and answers, when the determination is exercised by an RTC judge.

An RTC judge need not examine the complainant and the witness ==> This is dictated by sound policy. If the RTC judge is required to examine t he witnesses and the complainant, it will take a longer period to decide a parti cular case. It will be a waste of time when the judge s time will be spent in iss uing the warrant where it should have been wasted in hearing the testimony of th e witnesses in the main case. (SC Circular No. 12, July 30, 1987 as explained i n the case of Makasiar).

Principles: 1. The preliminary investigation to determine probable cause whether a person sh ould be held for trial for the commission of an offense, is the function of the prosecution (executive function) 2. Preliminary inquiry to determine probable cause whether a warrant of arrest b e issued, is the function of the judge (judicial function) 3. The findings of the prosecutor (fiscal) does not bind the judge. The judge s hould go over the documents. 4. To personally determine the existence of probable cause, the judge could do e ither of two things: [a] personally evaluate the reports and documents submitted by the fiscal; or [b] disregard the report and require submission of additional or supporting affidavit or evidence. It required therefore, that the documents presented before the prosecu tion should be attached in the information.There s no hard and fast rule as to the time and manner it is to be conducted.

Agcaoili vs. Molina An administrative case against Judge Molina filed by Judge Agcaoili. A complaint for homicide was filed with the MTC and decided over by Judge Molina ; he conducted the preliminary investigation, and he issued the warrant of arres t based on the examination in writing under oath in the form of searching Q & A

of two witnesses of the complainant that there is a necessity for the immediate custody of the accused in order not to frustrate the ends of justice. Judge Agcaoli (the case has been raffle to his sala) does not believe that it sh ould have been issued because the knowledge of the two witnesses is not personal . He found out that the two were only told of who killed the deceased victim. Just like in the issuance of a search warrant, it is required to determine prob able cause that the facts and circumstances must be personally known to the comp lainant and the witnesses. Therefore, there was no justification for the judge to find probable cause to issue the warrant of arrest. Judge Molina was reprimanded.

Delos Santos vs Monteza An administrative case against Judge Monteza. (He was removed from service for gross ignorance of the law). After 3 persons were ambushed, the NBI conducted an inquiry or inquest as to the circumstances of the ambush. Based on said inquiry, NBI filed before MTC judge in the province, a complaint for murder and frustrated murder against 9 individ uals. Judge Paragonon conducted preliminary investigation, then issued order of arrest, with no bail. Subsequently, she forwarded the information to the provi ncial prosecutor. The provincial prosecutor initially dismissed the case but hi s decision was appealed to the Dept. of Justice, which subsequently recommended the filing of murder and frustrated murder charges. Eventually, it reached the court of Judge Monteza. When the information were filed in the sala of Judge Monteza, he issued the warr ants of arrest. In the same day, the accused filed a motion to the first issuan ce of the warrants of arrest. (SC even noted the dispatch by which the accused knew of the filing of the information). Subsequently, they filed a petition to quash the warrant. The judge denied it at once because according to him, they h ave not yet surrendered, thus, the court has no jurisdiction yet over them, so n o remedy could be asked. Subsequently, the accused filed a motion to reinstate the application for bail a nd to set the hearing on a particular day when the accused will surrender. Then , they filed a motion to quash the warrant and filed a motion for bail. They wo uld want to rely on the quashal of the warrant. The judge motu propio quashed the warrant saying that there s no probable cause to issue such warrant , and set a hearing for the determination of the existence o f probable cause for another day. During the hearing, the judge found probable cause, did not issue the warrant and granted bail. The prosecution was not giv en opportunity to present evidence that the evidence of guilt is strong. The judge was charged for gross ignorance of the law. SC clarified the rule. When a warrant is to be issued, no hearing is required t o determine existence of probable cause. The judge is not required to examine t he complainant and the witnesses. Only personal review of the findings of the p rosecutor is necessary. SC went further in saying that the determination of the judge of the existence o f probable cause to issue the warrant of arrest does not go beyond reviewing the recommendation of the prosecutor up to no bail or bail recommended.

EXCEPTIONS TO STRICT ENFORCEMENT OF THE

12 HOUR RULE:

1. Continuing crime of subversion (however, at present, there is no more crime o f subversion) 2. Guns and drugs trade Regarding guns and drugs, the attitude of the state and of the court, by reason of difficulty in apprehending/arresting violators, is to give so much leeway to the police enforcers. In the cases regarding this particular business, it is d ifficult by reason of the practice of the trade to apprehend violators of this k ind of illegal possession. With more reason that the law on unreasonable search es and arrests makes it doubly difficult. It is difficult enough to apprehend a drug pusher because of the secrecy that surrounds the business. That is why, if there is a doubt because of some inconsistencies in the testimon ies of the witnesses or apprehending officers, the scales of justice would tilt towards the state. There is always that presumption of regularity in the perfor mance of official duties. If the accused failed to show that the apprehending o fficers were ill-motivated in testifying against him, all the testimonies will b e given weight, that is, regularity of police function is always upheld.

IMMUNITY FROM ARREST * Immunity from offenses punishable by not more than 6 years and Congress is in session. * Congress is in session - from the time it opens (4th Monday of July) until th irty days before the opening of the next session exclusive of Saturdays, Sundays and legal holidays. * All temporary recesses in between are still considered to be in session.

VALID WARRANTLESS ARRESTS 1. When the person to be arrested has committed, is actually committing, or is a bout to commit an offense in the presence of the arresting officer. There are two considerations under Sec.5, (1) in flagrante delicto cases: * the arresting officer has personal knowledge that the person to be arrested ha s committed, is committing, or is attempting to commit an offense; & * the offense must have been committed, is being committed or is attempted to be committed in his presence. That is, he actually saw it; with the use of percep tion, he perceived the commission of the offense. People vs. Burgos A member of the CPP-NPA surrendered to the police. The surrenderee informed the police that the accused is likewise a member of the CPP-NPA and had a gun in hi s possession. Based on the information, the police went to the house of the accused. At that time, the accused was not there as he was plowing his field. With the help of t he brother of the accused, he was called form the field. He was asked/interroga ted regarding the firearm. The surrenderee was with the police. Initially, the accused did not admit having possession of a gun. However, later his wife admi tted his possession of the gun; he was charged for violation of P.D. 1866.Was th e arrest valid? In this case however, the considerations above were not met because the police o fficers have no personal knowledge that the accused was committing an offense. When they went there, the accused was plowing the field and not in possession of a gun(Pp v Burgos).

2. When an offense has in fact just been committed and the arresting officer has personal knowledge of facts indicating that the person to be arrested has commi tted it. Under Sec. 5 (2), it is required among others that: * that an offense has just in fact been committed * that the arresting officer has personal knowledge as to the identity of the pe rson to be arrested The personal knowledge in (1) is different from that in (2) because the former r efers to the act itself ; while the latter refers to the identity of the person who committed the offense. In this case of Pp v Burgos, SC said that there is a question whether an offense has just been committed. Besides, they do not have personal knowledge as to th e identity of the person to be arrested. It was just based on the information g iven by the surrenderee. Therefore, the arrest was not valid.

Go vs. CA

Rolito Go was the suspect for the killing of Mr. Maguan over a dispute of two ve hicles (Mr. Go was going against the direction of a one-way street). After the incident happened, the police investigated in the scene of the crime and they f ound witnesses, including the security guard, who positively identified that it was the person who came from a restaurant who shot Maguan. After verification w ith the restaurant, they found a facsimile copy of the credit card payment as we ll as the receipt, and the plate number of the car which positively pointed to R olito Go. The San Juan Police conducted a manhunt for Mr. Go. Upon knowing of his hunt, M r. Go went to the police station to inquire (6 days later from the incident). F orthwith, he was arrested and detained.Was the arrest valid? HELD:Obviously, it was not valid under in flagrante delicto cases because he was arrested only 6 days later. Under sec 5(b), it still is not valid, after 6 day s, the offense cannot have been just committed. And the knowledge of the police officers as to the identity of Go was not based on their own but on the accounts of the eye witness 2006 notes: 12 hours is still considered reasonable time. People vs. Jerente At about 7 a.m. of Apr. 30, the accused and two others were having a drinking sp ree and they were discussing the killing of a certain Blase. At about 2 p.m., t hey killed Blase; they mauled the deceased with the use of wood and hollowblocks . At 4 p.m., police received a report of the mauling incident, they went to th e hospital and saw the victim Blase already dead. His skull was fractured. So the police went to the place on incident and found the piece of wood with blo od stains, a hollow block and two roaches (not the cockroach, but the remnants o f the marijuana cigarette) Witnesses pointed to the accused as the one who was responsible. So the police went to the house of the accused, they introduced themselves, the accused was fr isk and the coin purse was found with dried marijuana leaves wrapped in foil.Was the search valid? This brings us to the question on whether the arrest was val id, for the subsequent search would fall under search incident to a valid arrest . SC said, obviously this was not an in flagrante delicto case. But under Sec. 5( b), it is valid. SC said, an offense has just been committed (the arrest was ab out 3 hours from the commission). Also, SC said they had personal knowledge as to the identity of the person to be arrested. When they received the report, th ey went to the hospital and saw the victim dead; they went to the place of incid ence and the personally saw the evidences. These, plus the accounts of witnesse s satisfies the requirement of personal knowledge. Therefore, the search was a lso valid. 4blue 95 notes: accused was caught in flagranti delicto handling something to th e buyer which is the 2 bags of marijuana which are admissible as evidence being fruits of the crime. -- SC said that the bags is not admissible since it was found in his residence a nd at time of his arrest, the bag was beyond there reach and control of the hou se (since it is in another room) and that police has no warrant and even if arre st is done in house, the police has still to open the drawer where it was kept ( or else it would be violation of plain view)

3. When the person to be arrested is a prisoner who has escaped from a penal est ablishment or place where he is serving final judgment or temporarily confined w hile his case is pending, or has escaped while being transferred from one confin ement to another.

4. Waiver of an invalid arrest: When a person who is detained applies for bail, he is deemed to have waived any irregularity which may have occurred in relation to his arrest.

5. Hot pursuit A. The pursuit of the offender by the arresting officer must be continuous from the time of the commission of the offense to the time of the arrest. B. There must be no supervening event which breaks the continuity of the chase.

6. Stop and frisk When a policeman observes suspicious activity which leads him to believe that a crime is about to be committed, he can investigate the suspicious looking person and may frisk him for weapons as a measure of self-protection. Should he find, however, a weapon on the suspect which is unlicensed, he can arrest such person then and there for having committed an offense in the officer s presence. CUSTODIAL INVESTIGATION RIGHTS UNDER CUSTODIAL INVESTIGATION MIRANDA WARNINGS: You have the right to remain silent, anything you say may and wi ll be used against you in any court of law. You have the right to an attorney (I n the U.S., includes the right to one phone call) Purpose: To disallow the prosecution from using any statement from the person o f the accussed which may be used as evidence against him, in order to convict hi m, unless it is demonstrated that certain procedural safeguards have been obser ved to ensure or secure the privilege against self-incrimination. This particular right of a person under Sec. 12 must be related to or connected with Sec. 17: no person should be compelled to be a witness against himself. Sec. 17, strictly speaking, is the right against self-incrimination. 1.RIGHT TO REMAIN SILENT This is the aspect related to the right against self-incrimination. One s silence will not be taken against him, unlike in Rules of Evidence where there is such a thing as admis can convict the accused aside from the statement, the statemen t is immaterial; i.e. whether the statement is admitted or not, the accused is c

onvicted anyway. If there is no other evidence to convict the accused aside from the extra-judici al confession, and the confession is admitted, then the accused will be acquitte d.

2.COMPETENT AND INDEPENDENT COUNSEL Art. III, Sec. 12 - custodial interrogation (1973 Consti.) to s such, upon arrest you have the right to counsel. Choice of counsel: a.the suspect has the choice of who will his counsel be.

investigation (1987) a

b.in absence of letter a, it is chosen by police investigator to which suspect e xpressly agreed or suspect failed to object (exception to letter b is when such choice of counsel is given by police in an intimidating circumstance that you c annot object, the supreme court ruled that it does not tantamount to suspect s con sent to such choice.) 2006 notes: only lawyers are qualified: exception to such is when lawyer are (si nce they are not anymore independent and competent): (1) those who prosecute (2) conduct preliminary investigation (like the ombudsman) (3) city, municipal and provincial attorneys (4) mayors and barangay captain (5) police officers 2006 notes: with regard 4 & 5, they are still prohibited to be counsel even if i t is outside of their jurisdiction. 2006 notes: judges can assist in a confession. Presence of Counsel: a.presence of counsel is needed even if in foreign land b.when you sign a receipt of seized items, you are entitled to lawyer otherwise it would tantamount to a confession. c.marked money or in administrative investigation, no need of lawyer d.even in an interview by police, or invited in police station or in tactical in terrogation (in order for military to have tactical advantage in confrontation), counsel is needed

3.RIGHT TO BE INFORMED The right under Sec. 12 specifically refers to the right to be informed (the fir st right) of the right to remain silent and the right to a counsel. The right to be informed is over and above the other rights. Information must be relayed in clear and unequivocal terms. The rights must be in the language understood by the suspect or the person investigated. There is no clear standard for so long as there is meaningful transmission and reasonable certainty that the person has understood the rights. Q. Chief Justice Narvasa was arrested for an offense. Should he be appris ed of his rights under the Miranda Warning?Yes. It is not more of the person ar rested knowing his rights but rather to assure him that his rights will be obser ved.When the person will start to talk, he must be informed or warned that anyth ing that he will say can and will be used against him in any court of law.

4.RIGHT TO VISITS FROM RELATIVES ,LAWYER AND DOCTOR IN JAIL (STATUTORY RIGHT) WAIVER OF THE RIGHTS DURING CUSTODIAL INVESTIGATION: 1.Express a.writing b.assistance of counsel c.after valid waiver (a & c), the confession must be signed in the presence of p arent, brother, sister, spouse, mayor or judge. (scenario 3 is still valid even if the lawyer is not there anymore) 2.Implied By Failure to object during trial while oral confession was admitted (Oral confe ssion is absolutely prohibited ,but since accused failed to object then it s a wai ver.)

What may be waived: * Right to remain silent * Right to counsel What cannot be waived: * Right to be informed of the right to remain silent and right to counsel * as well as the requirement to be assisted by a counsel during a waiver in wri ting

WHEN ARE RIGHTS ATTACHED: This is applicable only in Criminal, as such if its taken in administrative proc edure, it can be admissible even in criminal proceedings however, if it is taken in criminal ,such admission is inadmissible even if it is used in civil and adm inistrative proceedings. 1.when suspect is in custody which means not only that he is in jail but that he is deprived of his freedom in a significant way (like while walking, police inv estigated him immediately) OR 2.under investigation, which means that he is being subjected to questioning by officers having custody over him in relation to some crime. Investigation, as defined in the case of Escobedo vs. Illinois Arizona - that kind of questioning that ceases to be a general inquiry on the fact of th e commission of an offense and begins to focus on a particular suspect, the susp ect having been taken into custody, and the police carries out a process of inte rrogation that leads itself to eliciting incriminating statements. The right to be informed, to remain silent and to counsel even covers situations where you are invited by the police for questioning. Therefore, technically no w, you can refuse an invitation for questioning by the police if you have no cou nsel.

EXCLUSIONARY RULE (TOTAL PROHIBITION) 1.uncounselled confession 2.obtained through force, intimidation or other means that vitiate will (like giv ing a reward or injecting a truth serum so that he will tell the truth) 3.oral confessions 4.obtained after a valid waiver, but not signed in presence of parents (those men tioned above in express waiver)

BURDEN OF PROOF 1. Voluntariness of the Waiver- on the prosecution (People vs. Sara, & People vs. Tolentino). the rule on waivers of constitutional rights is strictly construed against the State and liberally in favor of the person waiving it. That is why the burden l ies with the State. It is for the prosecution to prove the regularity of perfor mance of official duty. 2. Voluntariness of confession - it is for the confessant to prove that the co nfession was involuntary, e.g., it was taken by reason of torture/violence; beca use the presumption of regularity applies. It is not under normal police regulation to torture, to do violence on the perso n of the confessants. Regularity in the performance of the official duty would tell us that there s no torture nor violence, although it may happen. Thus: the presumption in confession is that it is voluntary;the presumption of w aiver is different, i.e., the State must prove that it was given voluntarily. Under R.A 7438 - even after arrest, the rights attach however, there were PROBLE MS prior to 1973 Constitution: 1. The miranda warning is not applicable for those statements taken prior to the 73 constitution * If the Statement was given voluntarily, even if he was not apprised of his rig hts, the statements are admissible, because it was only in the 1973 Constitution that the so-called Miranda warnings were incorporated in the constitution. * Still, it is required that it must be voluntary to be admissible. 2. Not applicable to res gestae statements Res Gestae Statements - (This is a rule in evidence, Rule 140, Sec.2) * Literally, It means things done * These are spontaneous statements in connection with a startling occurrence rel ating to the fact and in effect forming part thereof (of the startling occurrenc e). A startling exclamation. People vs. Dy, 158 SCRA 111 (1988) After he shot somebody, he immediately went to the police and told them what hap pened. That is immediately after a startling occurrence. So when he made a sta tement admitting liability, that can be taken against him. The question was, wh en he gave the statement, there was no Miranda warning given.SC said that was no t required because it was part of res gestae. He admitted even without being qu estioned; he admitted as a part of a statrling occurrence. 3. Not applicable to statements given in administrative investigations Miranda warnings under Sec. 12 refers to any person investigated for the commiss

ion of an offense. It refers to a criminal case. It does not apply to administ rative or civil cases, because persons are not arrested and investigated for vio lations of an administrative law or civil law. People vs. Ayson, 175 SCRA 216 (1989) He was investigated by PAL for having misappropriated some money. During the in vestigation, he admitted that he actually misappropriated some money, and in fac t offered to pay the accountability. His admission was documented and signed by him. The documents were used against him in a criminalcase for estafa. He obj ected to the admissibility of these documents because according to him, when his admissions were made, he was not given the miranda warnings.SC said it does not apply because Miranda warnings and the rights under sec. 12 are only claimable when you are investigated to answer for a criminal offense, not in administrat ive investigations. Navallo vs. Sandigan, 234SCRA 175 (1994) Audit examination is an administrative investigation. The audit examiner is not a police officer who investigated the petitioner. He is not the law enforceme nt agent contemplated under Sec. 12 who does the investigation for the person he ld in custody for the commission of a crime.

4. It Does Not Apply To Police Line-Ups Police line-up is not part of police investigation. Therefore, there is no requ irement that the person be assisted by a counsel because the right has not yet a ttached. He is not yet investigated. He is just made to participate in a polic e line-up for possible identification. Gamboa vs.Cruz, 162 SCRA 642 (1988) The accused was actually pointed to by the complainant as the one who robbed her . SC said, that act of pointing to the accused was part of a police line-up. T he Miranda rights have not yet attached because he was not yet investigated. (I n fact, at that time, it was the complainant who was being investigated. The ac cused was only sitting doing nothing when he was pointed by the complainant -that is part of a police line-up) In People vs. Hassan, there was a murder. The alleged eye witness saw the accus ed kill the victim. While in the funeral parlor where the accused was there, th e eyewitness was brought over where he pointed the accused. That was not in a p olice line-up. The accused was alone when he was identified by the eye witness. (In a line-up, there are supposed to be several persons).SC said the identific ation was suggestive. It was not identification in a police line-up, it is alre ady confrontation. In . he It ed People vs. Hatton, the eye witness said that the suspect looks like a mestizo Here was the accused who happens to be a mestizo and he was the only one in t police station. He was even pointed to by the police. was no longer identification but already confrontation. He needs to be appris of his rights.

2006 notes: The present rule under R.A. 7438 is that the right attaches upon arr est. Effect of the Change of the term custodial interrogation to investigation : People vs. De Jesus You have the right to remain silent, do you understand that? Yes You have the right to counsel, do you understand that? Yes . Are you waiving your rights - Yes Do you understand the consequences of the waiver of your rights? - Yes Then the questioning went on up to the investigation.

SC said that this is stereotyped, that does not satisfy the rule, because of the requirement of meaningful transmission.

People vs. Bandin After the arrest, the suspect was booked/blottered. The report of the desk offi cer entered in the blotter, the accused was made to sign in the booking sheet. He was also made to sign a receipt of the items taken from him. All of these w ere done without the assistance of the counsel. The booking sheet as well as th e receipt of the things seized which the accused signed were offered in evidence . Are these documents admissible? If these are part of the investigation, then these documents are not admissible . If they are not, then they are admissible. SC said that the booking sheet is not part of the investigation; it is merely a report. That is why, the signature there is immaterial. But the receipt of the items taken is considered a confession. Signing it is an admission that those items were taken from you, a part of investigation. Thus before signing it, yo u must have been given your Miranda rights. Failure on the part of the police o fficers to do that, the receipt signed by the accused is not admissible. People vs. Lidsana possession of money in a buy-bust operation is not an element of the offense; w hich means, there s no admission by signing a money. It s different in the signatur e in a receipt because it is a receipt of items seized and taken from you. But money per se is not punishable by law. (Otherwise all of us will be penalized.. . corny!!!) So the money with the signature of the accused, even if offered in evidence, doe s not prove the culpability of the accused because possession of money does not amount to anything. So, it can be admitted as evidence. People vs. Matus-Viduya. The fiscal acted as counsel during the investigation. Obviously, the fiscal can not act as counsel because he not independent being under the prosecuting arm of the government. People vs. Canela Requirement of meaningful appraisal of rights; the duty of the arresting officer to show that the rights or waiver are understood. It is the obligation of the police to prove to the court that the rights were understood and that the waiver was given voluntarily. Nature of waiver: In constitutional rights, the waiver is construed strictly ag ainst the State, and liberally in favor of the person making the waiver. People vs. Parojinog On the requirement of counsel. Under the right to counsel, he must also be info rmed that if he cannot afford the services of a counsel, he will be provided wit h one, an independent and competent counsel. So, the initial choice, in case the accused cannot afford a counsel is with the police officer. However, the fi nal choice is with the accused. He can refuse a counsel provided that the objec tion is reasonable. What if after providing the accused with one, he did not object , and he answere d the counsel s questions and signed the statement; and when the statement was off ered in evidence, the accused said that he was not his counsel, he did not choos e him, he was chosen by the police officers.... SC said, there is a valid waiver. He did not object when the counsel was given

to him. The initial choice of counsel was with the police if the accused cannot afford one, but the final choice is with the accused. And unless he did not ob ject to the initial choice of the police officer, there is considered to be a w aiver. Failure to object is a waiver. Thus, the confession is admissible.

Scope of Inadmissibility(not admissible): 1.not admissible as against the confessant 2.as against third persons 3.extends to objects taken as a consequence of uncounseled confession. 4. for any purpose of the proceeding (whether civil, criminal or administrative)

EXTRA-JUDICIAL CONFESSION 1. If admission was taken before Jan. 17, 1973 (The provisions of the 1973 Constitution where the so called Miranda warnings ha ve been first incorporated as pronounced in the case of Magtoto vs. Mangera and in companion cases) Such statements are admissible in evidence even without the Miranda warnings and even without the waiver for so long as the same was given voluntarily.

2. From Jan. 17, 1973 to March 20, 1985 (People vs. Galit) Rule on waiver: a. It must be intelligent b. voluntary c. with full understanding of the consequences of the waiver (no need for the waiver to be in writing or to be with the assistance of the counsel) How the Rule is applied: - there must be a meaningful transmission of rights, not just the ceremonious th e perfunctory recitation of the rights. To be meaningful, it must be in the lang uage spoken and understood by the person investigated. There must be some degr ee of explanation accompanying the recitation of the rights taking into conside ration the education, the age and other personal circumstances of the person inv estigated. People vs. Kagiwa The accused was from Samar and speaks very little Tagalog yet the rights were gi ven and explained to him in Tagalog. SC said that it should be in the language that he speaks and understands. If after taking into consideration all of the above rules and the person will speak or offer an admission or a confession, then the extra-judicial confession or admission is admissible in evidence. People vs. Galit, March 20, 1985

ruling in Morales vs. Ponce was reiteratedProcedure in case the person is arrest ed which should be followed by the person arresting up to the time the person ar rested is investigated: 1. It must be explain to the person why he is arrested. Inform the person arrested as to the reason of the arrest. 2. Warrant must be shown if any. 3. Explain the Miranda Warnings and the rights under it. 4. He must be informed that he has a right to consult or communicate with a lawyer, a relative or a friend. * It is the responsibility of the arresting officer that all of these are ac-com plished. 5. In Case a Custodial Investigation is to be Conducted: The investigation can be conducted only with the presence of a law-yer who is en gaged by him or engaged for him, or assigned to him. 6. The waiver to counsel is valid only with the assistance of a counsel.Duri ng investigation, if the person investigation wishes to talk even without the as sistance of a counsel, that waiver would only be valid with the assistance of th e counsel.

3. Feb. 2, 1987 Constitution The new rule on waiver requires it among others to be with the assistance of a c ounsel and in writing. (Making the requirement 7) Therefore, determine when the extra-judicial confession was taken because differ ent rules apply on different periods. Ex. The extra-judicial confession was given on Jan. 1, 1987 and it is not in w riting but with the assistance of a counsel. Is the confession valid? YES.

2006 notes:It does not mean, however, that if the extra-judicial confession is i nadmissible, the accused will be acquitted. He can only be acquitted if there is no other evidence which will prove his guil t. If the only proof submitted by the prosecution is the extrajudicial confessi on, and it so happen that said confession is inadmissible, the accused will be acquitted. But regardless whether there is an extrajudicial confession or not, and there are other evidences to show the guilt of the accused by proof beyond r easonable doubt, the accused will nevertheless be convicted.

RIGHT TO BAIL the security given for the release of a person in custody of the law, conditione d upon his appearance before any court as required under the condition. So, if you don t want to serve a jail term before you are convicted, that is, pend ing trial, you can be released temporarily pending the trial on bail. Sec. 13. All persons, except those charged with offenses punishable by reclusio n perpetua or higher when evidence of guilt is strong, shall, before conviction be bailable by sufficient sureties, or be released on recognizance as may be pro vided by law. the right to bail shall not be impaired even when the privilege o f the writ of habeas corpus is suspended. Excessive bail shall not be required. FORMS OF BAIL 1. Cash Bond - bail in an amount, e.g., 80,000 pesos 2. Property Bond - if you don t have any cash, but you have property, you can make the property as your guaranty or security for the appearance in court. Nor mally, it is required under the rules and by-laws that (1) the property is loc ated in the province or the place where the court sits, and (2) the value of th e property should at least equal to the value of the bail amount recommended or approved by the court. 3. Surety Bond - is just like an insurance. You just pay the premium or the bail amount, in which case, the surety becomes your custodian. 4. Recognizance allowed for certain offenses, as when the penalty is n ot more than six months, in which case, he can be released on recognizance, and the person who will take custody will be a responsible person or officer of the community. This is the Laurel Law (he thinks) by which Sen. Laurel introduced t he law on recognizance for minor offenses. Ex. When the accused don t have money, he may request the baranga y captain to take him under his custody and the court will designate the latter as his temporary jailer. He will assumed responsibility in bringing the accused to court whenever required. Another instance is when a minor is charged for violation of R .A. 6425, in which case, the minor may be released on recognizance to a responsi

ble member of a community: Brgy. Capt., Brgy. Councilor or even not an officer of the community but at least responsible, who can take custody in the meantime that the case is pending, but only particular cases. Excessive Bail shall not be Required o bail - This is in order not to negate the right t

Right To Bail Shall Not Be Suspended Even If The Writ Of Habeas Corpus Is Suspend ed Sec. 18, Art VII - when the privilege of the writ may be suspended, i.e., in ca ses of rebellion, invasion or when public safety requires it, the President call s for the suspension of the privilege. Art. 172 Rule on Arbitrary detention: * for slight offense - up to 12 hours * less grave - 18 hours * grave felony - 36 hours When the privilege of the writ is suspended, it is extended to 3 days, because under the law, you must be charge within 72 hours --- that is the only effect. It has no effect on the right to bail., even if one is arrested for the crime o f rebellion or invasion. When Can The Right Of Bail Be Invoked: People vs. San Diego and Nierras vs Rubirac: as long as the person is placed in custody. It is not necessary that you are already charged in court. If you ar e arrested, regardless of whether there is a charge, you can already invoke your right to bail. You can ask the court to fix the bail after you have been place d in custody of the law. You are placed in custody if you are already arrested. If not yet, your right does not yet arise. Bail is not allowed: 1.after final judgment for any offense 2.before conviction by RTC for offense punishable by Reclusion Perpetua, life im prisonment or death, and where evidence of guilt is strong. 3.after conviction under #2, while case is on appeal 4.after conviction by RTC while case is on appeal for a crime punishable with 6 years, and 1 day to 20 years. (Rule 114) 2006 notes: bail is not available to soldiers if they are charge in court martia l ,but if they are charge in regular courts then, they can apply for bail. 2006 notes: extradition and deportation is in the discretion of the judge. RIGHT TO BAIL AND THE RIGHT TO TRAVEL ABROAD Sec. 6, Art. 3: The liberty of abode and of changing the same within the limits prescribed by law, shall not be impaired, except upon lawful order of the court. Neither shall the right to travel be impaired, except in the interest of natio nal security, public safety or public health as may be provided by law. In one case, the accused posted bail and wanted to travel outside of the country . Can that be allowed? Sec. 6 stated two rights: (1) liberty of abode and of changing the same, and (2) the right to travel. The liberty to choose where you want to live or reside in the country and to cha

nge your residence in the country can only be impaired upon lawful order of the court. For example, one penalized with destierro cannot enter a certain place. Or one on probation cannot change his residence without the approval of the cour t. The right to travel on the otherhand, can only be impaired if in the interest of national security, public safety or public health as may be provided for by la w. Court order refers to liberty of abode; national security, public health and pub lic safety refers to right to travel. the right to bail has not been affected b y the inherent power of the court under the Rules of Court to make its orders ef fective. Meaning, since the order of the Phil. Court can no longer be effective outside of the country, the Court has the power to limit the right of the perso n under bail to travel outside of the country. simply means that the right to t ravel cannot be impaired by the Executive except upon reasons of national inter est, public safety or public health. It does not affect the rights and powers o f the court to limit the right to travel.

EFFECTS OF BAIL 1. The custody of the accused is transferred from the State to the bond. 2. The jurisdiction of the court over the accused remains if he is under bond.

WAIVER OF THE RIGHT TO BAIL People vs. Donato Even if the crime for which he was charged is punishable by prision mayor only, but considering the waiver of the right to bail, he is no longer entitled to bai l. There was a waiver because of the previous agreement that the other petition ers in the habeas corpus petition shall be released whereas, Salas will remain i n legal custody. The waiver is valid because it was made by the person who has the right under th e the right to bail in the Constitution, and under Art. 6 of the New Civil Code, waiver of rights are considered to be effective. SC said that even Constitution al rights, like the right to bail can also be waived.

BAIL AS A MATTER OF RIGHT AND A MATTER OF DISCRETION Rule 114 (New Rules on Bail) - approved on Aug. 16, 1994 on account of the reimp osition of the capital punishment under the Heinous Crime Law:

a.As a matter of Right: 1. Before conviction by the Municipal Trial Court and the Regional Trial Court i f the penalty imposable is not reclusion perpetua, life imprisonment or death 2. After conviction by the MTC, because the MTC does not have jurisdiction for grave offenses, only up to 6 years of imprisonment 3. After conviction by the RTC but the penalty does not exceed 6 years 2006 notes: As a matter of right, it does not matter whether the evidence of gui lt is strong.

b.As a Matter of Discretion: 1. All those charged with offenses punishable by reclusion perpetua, life impris onment or death 2. After conviction by the RTC where the penalty imposed exceeds 6 years, but n ot more than 20 years and the accused is found to be suffering from any disabili ty under Sec. 5 of Rule 114 Disabilities: a) accused is a recidivist, quasi-recidivist, habitual delinquent or has committ ed the crime aggravated by the circumstance of reiteracion b) accused is found to have previously escaped from legal confinement, evade sen tence, or has violated the conditions of his bail without valid justification c) the accused has committed the offense while on probation, on parole or on con ditional pardon d) the circumstances of the accused or his case indicate the probability of flig ht if released from bail e) there is undue risk that during the pendency of the appeal the accused may co mmit another crime.

Discretion-refers to the appreciation of the court on whether or not bail should be granted

People vs. Donato He was charged of rebellion which carries the penalty of prision mayor. (By sub sequent legislation by Pres. Marcos it was increased to reclusion perpetua to de ath. When Pres. Aquino was in power, the P.D. s increasing the penalty were all r epealed, it was reverted to prision mayor.) So, in the rules of bail, is rebel lion a matter of right or a matter of discretion? ANS. It is a matter of right because it does not reach the penalty of reclusion perpetua, life imprisonment or death. The State, however, argues in this case that they should be allowed to present evidence to prove that evidence of guilt is strong, because according to them, t he very existence of the state is at stake. That is why, Commander Bilog shoul d not be allowed to be released on bail. SC said: when the bail is a matter of right, the prosecution is not supposed to be allowed to present evidence to prove that the evidence of guilt is strong in order to deny bail. What is required is that the prosecution may present evide nce to prove the amount of bail but never to deny the right to bail. But if the bail is a matter of discretion, the court should allow the prosecutio n to prove that the evidence of guilt is strong, to determine whether to deny or grant such bail. The judge cannot, on motu propio, grant bail automatically without giving the pr osecution opportunity to prove that the evidence of guilt is strong.

People vs. Lardizabal it was abuse of discretion and ignorance of the law for the judge not knowing th at in instances where the bail is a matter of discretion, the prosecution should be given ample opportunity, summary in character, to show that the evidence of guilt is strong. It is only when this is satisfied that the judge may grant or deny the bail; if granted, then fix the bail. It is not for the court to say m otu propio that the evidence of guilt is strong. SUMMARY: MTC bail is absolute right before final judgment

RTC/Sandiganbayan if Original Jurisdiction 1.reclusion perpetua, life imprisonment or death a.evidence is strongb.not strong no right to bail has right to bail

2.prision mayor (downwards) has right to bail 3.all appealed cases to RTC (not falling to 1)has right to bail

SC/CA/Sandiganbayan in Appellate (a)Prision mayor to R.temporal with no circumstances (like mitigating circumstan ces ,and like recividism etc..) --- discretionary on part of the judge 2006 notes: if there are circumstances, then ,there is no right to bail.

(b)Lower than Prision Mayor, then accused has right to bail RIGHTS DURING TRIAL ART. III, Sec. 14 No person shall be held to answer for a criminal offense without due process of l aw. In all criminal prosecutions, the accused shall be presumed innocent until the co ntrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witness face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed nothw ithstanding the absence of the accused provided that he has been duly notified a nd his failure to appear is unjustifiable. Sec. 14, Par. 1 - reiterates the due process clause in Sec. 1, Art. III. This i s an emphasis of the due process in criminal cases. Par. 2 - recites several rights of the accused during trial. The only differenc e from the Rules of Court Rule 115, Rights of the Accused, is the right to appea l after trial in allowable cases, which is provided in the said Rule.

1.

PRESUMPTION OF INNOCENCE

All persons charged criminally are presumed innocent unless proven otherwise by proof beyond reasonable doubt. Regardless of the strength of the defenses, the presumption of innocence will al ways be in the favor of the accused. There is a principle in Evidence which sa ys that the prosecution must rely on the strength of its own evidence and not on the weakness of the defense. Proof beyond reasonable doubt to rebut the presumption of innocence does not mea n absolute certainty, but simply moral certainty. If the judge is convinced aft er weighing both sides of the controversy and he is morally certain that the ac cused is guilty, then he should be convicted. But if there remains a moral question/doubt, and the doubt is reasonable, the ju dge must acquit the accused, not because he is not guilty but because he is pres umed innocent.

Exemption to Presumption of Innocence: In case of malversation Intellectual property Fisheries Code

2.

RIGHT TO BE HEARD PERSONALLY OR BY COUNSEL

If fake lawyer: then it violates your right to counsel There are instances however, just like in the Municipal Trial Court, that non-la wyers may be allowed to appear. In the MTCs in the province, some prosecutors ar e chiefs of police, not lawyers, because of lack of prosecutors. 4blue 95:you have no right to an intelligent lawyer, so if bobo ang lawyer mo th en you are bound by his kabubuhan.

What shall be done if the accused appears in court without a counsel? * According to the case of People vs. Sueldado, it should be that the court will inform him of his right to counsel. If he can t afford a counsel, the court shou ld tell the accused that the court may appoint a counsel for him, a counsel de o fficio. If the accused would insist that he wants to get the services of a coun sel de parte, the court must allow the accused reasonable time to admit the ser vices of his own counsel. * The role of a counsel de officio officially starts upon appointment and contin ues upon arraignment before trial, after trial and on appeal. The designation o f said counsel does not stop after the decision of the trial court. ==> The choice of the counsel de officio would depend on the dence and integrity of the lawyer. He must also be a lawyer ==> In case of an arraignment, he must be given at least one he accused. ==> In case of a trial, the counsel de officio must be given o prepare for trial. 3. RIGHT TO FREE LEGAL ASSISTANCE (Sec. 11) People vs. Rio The accused was convicted of rape and sent to reclusion perpetua and to indemnif y the victim for P15,000. It was appealed to the SC because the penalty imposed was reclusion perpetua. During the pendency of the appeal, the accused wrote t he Secretary of the Division of Clerk of the SC, of his intention to withdraw th e appeal due to his poverty. SC reiterated the rule pronounced in the case of People vs. Olgado on the duty o f the court to inform the accused of his right to counsel and to inform him tha t if cannot afford one , he will be provided with one. The letter-request there fore of the accused was denied. The SC appointed a counsel de officio for the p urpose of appeal pursuant to Rule 122 and Sec. 11 Art. III of the Constitution. SC went on to say that the duty of the counsel de officio does not end when the competency, indepen of good standing. hour to talk with t at least two days t

trial ends at the trial court level. He should defend the accused up to appeal and all members of the bar have been admonished on the practice of not defending the accused as de officio counsels up to appeal. The case went on, SC affirmed the judgment of conviction and modified the civil indemnity from P15,000 to P30,000. Other Free Legal Assistance: A student who finished third year in the law school may engage in law student pr actice with the supervision of a lawyer. He can appear, sign pleadings with the supervision of a lawyer. In certain cases in the MTCCs, non-lawyers are allowe d to appear. This is to provide adequate legal assistance. IBP has its own fre e legal assistance program. Some law schools also provide free legal assistance . 4. RIGHT TO BE INFORMED OF THE NATURE AND CAUSE OF ACCUSATION

Arraignment an indispensable process in criminal prosecution; without it, no criminal prosec ution nor judgment will be valid. It is the reading of the official charge where the information is read to the ac cused by the court interpreter and whereby the accused will enter his plea of gu ilty or not guilty. The arraignment in criminal prosecution is precisely intended to comply with the right of the accused to be informed of the nature and cause of the accusation a gainst him. Borja vs. Mendoza Respondent judge committed a grave abuse of discretion in allowing the prosecuti on to present evidence despite the fact that the accused has not been arraigned, and his decision of conviction is void. He was not informed of the nature and cause of accusation against him. Arraignment is an indespensable requirement in any criminal proceeding. 2006 notes: if the information fails to allege the material elements of the offe nse, the accused cannot be convicted even if prosecution is able to present evid ence during the trial with respect to such elements. -- the real nature of the crime charged is determined from recital of facts in t he information and not based on caption, preamble or from specificaiton of the l aw violated.

5. RIGHT TO HAVE A SPEEDY TRIAL 4blue 95 says that it is available only to Criminal Cases (unlike in speedy disp osition of cases whereby it applies to criminal, civil and administrative cases) Effect of dismissal based on the ground of violation of the accused s right to spe edy trial: if dismissal is valid, it amounts to an acquittal and can be used s basis to obt ain double jeopardy. This would be the effect even if the dismissal was made wit h the consent of the accused. The remedy of accused if his right to speedy trial has been violated is that he can move for the dismissal of the case, or if he is detained ,he can file petiti on for the issuance of writ of habeas corpus. 6. RIGHT TO PUBLIC TRIAL

Public trial is that the attendance of the trial is open to all irrespective of their relationship to the accused. However, if the evidence to be adduced is off ensive to decency ,the public may be excluded. Right of the accused to public trial is not violated if the hearing are conducte d on Saturdays, either with the consent of the accused or it failed to object th ereto. The right of accused in fair trial is superior to that of right of people to be informed and right of media to cover the trial, therefore ,if the accused or the witness wants that his case is to be private with no media ,then it may be gran ted by the court. 7. RIGHT TO IMPARTIAL TRIAL Impartial trial means that the accused is entitled to the cold neutrality of an impartial judge. It is an element of due process,so dapat judge must not be bias ed. With regard too much media coverage, the lawyer of defense cannot just invoke th at the decision of the judge was biased due to media coverage, the lawyer must p rove that due to the media coverage there was actual prejudice on part of the ju dge.

8.RIGHT TO MEET THE WITNESSES FACE TO FACE If failure of the accused to cross-examine a witness is due to his own fault or was not due to the fault of the prosecution, the testimony of the witness should be excluded. When the right to cross examine is demandable,it is demandable only during trial s. Thus it cannot be availed of during preliminary investigation. Exceptions to right to confrontation are: 1.admissibility of dying declaration 2.trial in absentia 3.with respect to child testimony

9. RIGHT TO THE PRODUCTION OF EVIDENCE IN HIS BEHALF 10.RIGHT TO HAVE COMPULSORY PROCESS TO SECURE THE ATTENDANCE OF WITNESSES 4 blue 95:documents should be subpoena. 4blue 95:remember the requisites in trial in absentia which is (1) arraigned (2) notify and (3) failure to appear is unjustified. 2006 notes:however, you cannot be arraigned in absentia.

Section 16.All persons shall have the right to a speedy disposition of their cas es before all judicial ,quasi-judicial or administrative bodies. 2006 notes:while right of accused applies only to the trial phase of criminal ca ses, the right to a speedy disposition of cases covers all phases of JUDICIAL, Q UASI-JUDICIAL or ADMINISTRATIVE proceedings. 4blue 95 says that this right covers the period before,during and after trial.

Section 22.No ex post facto law or bill of attainder shall be enacted Ex post facto law is one where it makes an action done before passing of law and which was innocent when done ,criminal and punishes such action or which aggrav ated the crime to make it greater than when it was committed. Or changes punishm ent and inflicts a greater punishment than that which law annexed to the crime w hen it was committed. 2006 notes:it applies only to retrospective penal laws. Bill of attainder is a legislative act which inflicts punishment without judicia l trial. The elements are:there must be a law. It must impose a penal burden ind ividually and it is imposed directly without judicial order. 4blue 95:applicable only to statutes and punishments. 4blue 95: not applicable to executive orders & presidential proclamations. RIGHT AGAINST SELF INCRIMINATION Section 17.No person shall be compelled to be a witness against himself 1.In Criminal cases there exist a Prohibition on Inquiry , which means you cannot force the accused to take the witness stand 2.In Civil cases the person has the option to answer incriminating question, the refore, the other party may call on such person to witness stand and latter cann ot refuse. 3.Administrative if criminal, then follow rule (1), if civil follow (2).

4.if it is the Legislative who will case the person, then follow the rules on Ci vil case above. 4blue 95:right against self-incrimination covers only TESTIMONIAL which includes the production of documents, taking dictation and re-enactment of a crime. However, exception to such is when it is the corporation, the officers cannot in voke self-incrimination and if it is public record, the public officer cannot in

voke self-incrimination. 4blue95: it do not cover NON-TESTIMONIAL matters (which includes voice print, dr ug testing and DNA testing) A question tends to incriminate when the answer of the accused or the witness wo uld establish a fact which would be a necessary link in a chain of evidence to p rove the commission of a crime by the accused or the witness. An accused can refuse to take the witness stand by invoking the right to self in crimination but an ordinary witness cannot refuse to take the stand. He can only refuse to answer specific questions which would incriminate him in the commissi on of an offense. What is prohibited is the use of physical or moral compulsion to extort communic ation from the witness or to otherwise elicit evidence which would not exist wer e it not for the actions compelled from the witness. The right does not prohibit the examination of the body of the accused or the us e of findings with respect to his body as physical evidence .Hence, fingerprints of an accused would not violate the right against self incriminations (or under going an ultra violet exam). However, obtaining a sample of the handwriting of t he accused would violate this right if he is charged for falsification. The accused cannot be compelled to produce a private document in his possession which might tend to incriminate him. However, a third person in custody of the d ocument may be compelled to produce it. It can only be invoked during criminal cases or in administrative proceedings if accused is liable to a penalty It can only be invoke by natural persons not juridical persons.

USE IMMUNITY- even if you testified, you can still be prosecuted with regard oth er crimes and not on crime that you testified. TRANSACTION IMMUNITY- immunity whereby if you testify you cannot be prosecuted a nymore.

4blue 95:in involuntary servitude, the right also extends to a scenario whereby even if you will be paid P1 Million pesos, if still you do not want to work ,the n you cannot be compelled to work. 4blue95:benevolent neutrality is accommodating religious belief to some extent. 4blue 95:compelling state interest is that state can dispose with religious beli ef if it can show that there is a compelling paramount interest.

PRIVILEGE OF THE WRIT OF HABEAS CORPUS Art. III, Sec. 15 The privilege of the writ shall not be suspended except in cases of invasion or rebellion and public safety requires it. This must be understood in the light of Art. VII, Sec. 18 on the Commander-In-Ch ief powers of the President. In cases of invasion or rebellion and public safet y requires it, the president may suspend the privilege of the writ of habeas cor pus. Writ of Habeas Corpus - an order issued commanding the person detaining another to produce the body of the person detained in court at the designated time and day and to explain why the person detained should not be released. It has nothing to do with other issues (as, is he charged for a crime?), but onl y as to the reason for the detention. Habeas Corpus is the remedy in case of actual and illegal detention (it is illeg al detention if the person is not yet charge) Effects when the privilege is suspended: 1. Even if the privilege is suspended, the writ is still issued upon application if the petition is sufficient in form and in substance. Meaning, even if there is a suspension of the privilege and the person is detain ed, you apply for a writ, the judge will issue the writ. The only thing that wi ll happen is that, if the person detained is detained for an offense covered by the suspension (rebellion and offenses inherent in invasion), the detention beco mes valid. But if otherwise, he should be released, the detention being invalid . 2. The right to bail shall not be affected. The accused can still apply for bai l. 3. If you are detained for a covered offense, it legitimizes the detention only for three days. The periods under Art. 172 on Arbitrary detention are extended. From th e 12-18-36 hours, for slight- less grave- less grave felonies, if the offense is covered by the suspension, it is extended to three days (72 hours). Under Art. VII, Sec. 18, even if the privilege has been suspended and you are arrested for rebellion or any other offense inherent in or connected with i nvasion, you must be judicially charged within three days. It does not mean that with the suspension of the privilege, one can be detained without charge for more than three days. You must be charged in court within a period of three days. If you are not charged, even if arrested for reb ellion, you must be released. If you are not released, then you can file a peti tion for habeas corpus.

4blue 95:the moment a case is filed against you (or warrant is issued on you) th en, habeas corpus is moot and academic. 4blue 95:writ of amparo is a writ use for enforcement of a constitutional right

as against an invalid government act.

SUSPENSION OF THE PRIVILEGE The suspension of the privilege of the writ is now a justiciable question. In p rior cases, it was considered as a political question. The Lansang vs. Garcia r uling in 1971 made it a justiciable question. The ruling is: a suspension of th e privilege of the writ or even the declaration of Martial Law should pass the t est of arbitrariness. One can file a petition before the court to determine whe ther the declaration or suspension was arbitrary or not. Arbitrary not in the s ense that it is not correct, but that there was no justification at all. The question in every case is NOT whether or not the declaration or the suspensi on was correctly made by the president. But the question is whether or not the declaration or suspension was without any factual basis. Ex. of basis: intellig ent information. The Garcia ruling is now incorporated in Art. VII, Sec. 18. Any person can now file a petition to test the sufficiency of the factual basis using the test of a rbitrariness.

FUNCTIONS OF THE WRIT 1.It is the only effective remedy to question any form of involuntary restraints . Villavicencio vs. Lukban In this case, several women in the red districts of Manila were rounded up, forc ed to board a steamer and some of whom reached Davao City. The essential object of the writ is to look into all forms of involuntary restraints, whether it be a restraints on freedom of locomotion. Note: Those arrested by virtue of a valid warrant could not question or file a petition for a writ, the warrant being the justification for such detention (as in Jalosjos case). In this case of Lukban, the women were merely rounded up, compelled to board a s teamer and were brought to Davao. The restraint here is not actually physical d etention for they could come back IF they have the means. But could have not be en there in the first place had they not been forced. Is there a validity for a petition for habeas corpus? SC said YES, because it is a form of involuntary restraint. Any restraint which will preclude freedom of action is sufficient. Moncupa vs. Ponce Enrile The petitioner was arrested and detained but subsequently released on several co nditions. One is that she has to regularly report to the Ministry of Defense. Second: she could not give interviews to local and foreign media without the app roval of the Ministry of national Defense. Third: she could not change reside nce without the approval of the Ministry. She filed a petition for Habeas Corpu

s. Respondents argued that she s no longer detained; she has been released. SC said, it is not limited to physical incarceration. A release from detention with condition, is a form of involuntary restraint on the freedom of action or l ocomotion. That can be inquired into by a writ of habeas corpus.

2.

As a post-conviction remedy.

This has something to do with the jurisdiction of the court to order the continu ed detention of the convict. Chavez vs. Court of Appeals The conviction was based on an evidence which is not admissible. So, by reason of the application of the exclusionary rule, the evidence which was the basis of his conviction should not have been admitted. So, what is now the justificatio n for the continued detention of the accused? SC said, since there was already no valid justification, the accused should be released. If the accused is not released, despite want of evidence by reason of the exclusionary rule, then the court is ousted of jurisdiction. That is grave abuse of discretion. So, a petition for habeas corpus is a valid remedy. Gumabon vs. Dir. of Prisons The petitioner was charged of a complex crime of rebellion with murder and other crimes. He was found guilty and made to suffer a penalty for life imprisonment . This was in 1953. In 1956, the case of Amado V. Hernandez was decided by the SC, it ruled that the re is no such crime as rebellion complexed with murder, the latter being necessa rily included in the crime of rebellion. Gumabon wanted to avail of that ruling because the penalty is only prision mayor . Can he avail of that? The first question was, should judicial decisions be given retroactive effect?YE S, because judicial decisions form part of the law of the land and specially if it is favorable to the accused. So, it should be applied to the petitioner in t his case. The other question is, should the decision in the prior case of Humabon be chang ed in that it should be prision mayor and not life imprisonment?SC said NO, it c annot be changed because the decision has already been final. What can be done is when the prision mayor minimum at least has already been served, then the cou rt is ousted of jurisdiction to order the continued detention of the accused out side of that prision mayor penalty. So, after he has served the prision mayor, he can file a petition for habeas corpus to question his continued detention.

PROTECTION AGAINST DOUBLE JEOPARDY

No person shall be twice put in jeopardy of punishment for the same offense -- so you cannot appeal or file motion for reconsideration since such tantamount to double jeopardy (latter is either same offense or same act) I. SAME OFFENSE It involves a statute only, and to know if there is double jeopardy,then look at the statute itself.

GENERAL ELEMENTS OF JEOPARDY UNDER SAME OFFENSE: A. It is required under the first jeopardy to be attached or considered to have attached but there must be (Requirements) 1. a court of competent jurisdiction but if no jurisdiction or wrong venue (like in bigamy whereby he must be charge in place where 2nd marriage occurred), then, he can be charge again. It must be determined which court has jurisdiction over the offense. The MTC no w has jurisdiction over criminal cases punishable up to six years of imprisonmen t. Example: a case of murder against an accused filed, tried and decided before the MTC, and later, another case for the same murder is filed against him befor e the RTC, the accused cannot claim his right against double jeopardy. The firs t jeopardy has not attached because the MTC has no jurisdiction over murder case s. 2. an information or complaint filed sufficient to convict the accused however, if accused was charged with no offense; or the complaint or information was not signed by offended party or that it was not filed by proper officer, th en , he can be charged again. The rules on the sufficiency of information or complaint embodied in the Rules o f Court must be observed. Example: when one is charged for rape but the privat e offended party did not institute the complaint, that will not be sufficient to convict the accused, because rape is a private offense and it can be instituted only by the private offended party. 3. an arraignment and plea If the accused has not been arraigned and has not entered his plea, the case wi ll be dismissed, and that is without prejudice to refiling. It is different if there is already an arraignment and plea, that will not constitute as first jeo pardy if eventually the first case is dismissed without the expressed consent of the accused. 4blue 95:however, even if he was arraigned (whereby he plead guilty) but if ther e is new substantial evidence (in a sense that it was not discovered while on tr ial) pointing that he is not guilty, then, he must be re-arraigned.

4. the accused has been acquitted, convicted or otherwise the case is dismissed without his express consent.

From the terms of the double jeopardy rule, the mere filing of two information f or the same offense will not afford the accused protection from double jeopardy, because there is as yet no jeopardy which has attached. It is required that th e first jeopardy must have attached.

B. first jeopardy was terminated Termination can be effected by:

1.acquittal Judgment of acquittal is immediately final, it can never be appealed therefore t he records cannot be forwarded to court of appeals or appellate courts. No matter the seriousness of an error, you cannot reverse the judgment of acquit tal. However, there exist a reversal of judgment or opening a case on acquittal whene ver there exist grave abuse of discretion or violation of due process.

2.conviction (criminal) No appeal is necessary even if to impose the proper penalty or else there would be jeopardy.

3.dismissal without express consent of accused

There is NO Express Consent on the following: a.when accused objects to the dismissal b.when accused is silent c.reinvestigation However, even if there is no consent ,it can still be refilled in the following: a.grave abuse (since dismissal was erroneous)

b.violation of due process

Express consent (so it can be refilled) There exist express consent on the following: a.dismissal is provisional (1 yr for MTC & 2 yr for RTC) b.without prejudice c.on motion of accused d.accused agrees to the dismissal It is required that it is either viva voce or in writing which is considered to be positive, direct and unequivocal, that the accused wants the case to be dismi ssed. That should be the tenor of the express consent. Instances in that case where, even with the express consent of the accused or u pon motion of the accused, it is considered as an acquittal (cannot be refilled) : 1. the accused invokes the right to a speedy trial 2. the accused moves to dismiss the case based on a demurer to the evidence (w hich means lack of evidence, so even if new witness in presented in future, it c annot be refilled anymore) 3. state witness

C. The second element is that the accused must be placed in jeopardy of being pu nished for the same offense. Situations contemplated: 1. identical offense * Ex. Murder committed on Feb. 1; case dismissed without his consent, or the acc used convicted or acquitted; the same case of murder committed on Feb. 1 is refi led 2. 2nd offense is an attempt to commit the first

3. Frustration of the offense charged * Ex. An earlier case for consummated homicide is filed. It turned out after th e case was dismissed, without the consent of the accused, or the accused was acq uitted or convicted, that the victim did not die after all, so an attempted or f rustrated homicide case is filed. That will be covered under the rule on double jeopardy. 4. The second offense necessarily includes the first offense * Some of the elements of the second offense constitute all the elements of the first offense. * Ex. First offense is homicide; the second offense is murder. Some of the elem ents of murder constitute all of the elements of homicide. 5. The second is necessarily included in the first offense * (It is the reverse of the preceding number) * Ex. First offense is less serious physical injuries; the second offense is fo r slight physical injuries, still covering the same act. All of the elements of slight physical injuries constitute some of the elements of less serious physi cal injuries. So the second is necessarily included in the first offense. 6. The accused pleads guilty to a lesser offense, if it is valid. * It is allowed under our rules in criminal procedure that the accused will ente r into a plea bargaining. For a plea bargaining to be valid, the offended party , as well as the prosecutor, must both agree to the plea bargaining. The plea b argaining involves the plea of guilt of the accused to a lesser offense. * Ex. Charged for serious physical injuries. If the complainant and the fiscal agrees that you plea guilty to a lesser offense of slight physical injuries, th e case for serious physical injuries will be dismissed, you will become guilty f or slight physical injuries, thus, convicted. The private complainant cannot re file the case for serious physical injuries.

Demurer To Evidence - a waiver of the right to be heard. - a motion to dismiss filed after the prosecution has rested and presented its e vidence. * If the accused filed a demurer of evidence without permission or leave of cour t, and the motion to dismiss is denied, the accused will no longer be allowed to present evidence. * If there is prior permission or leave of court, and the demurer is denied, the accused can still present his evidence. This is based on t has not proven tion to dismiss, denied, it will did not. the the the now presumption that despite the evidence of the prosecution, i guilt of the accused. If the judge believes the accused mo case will be dismissed. If otherwise, the demurer will be depend if the accused has asked a leave/permission or if he

People vs. Doneza explains the result of a demurer of the evidence. If the demu rer is granted, it is equivalent to an acquittal, because the prosecution failed to prove your guilt beyond reasonable doubt. You can no longer be charged anew for the same offense as it will violate the rule on double jeopardy. Jimenez vs. Nazareno On the appointment of a counsel de officio.At the different stages of a proceedi ng, different counsels de officio were appointed. Does that violate the right o f the accused to be heard by himself or by counsel?SC said no, so long as the co unsels de officio have done their job, i.e., they participated in the course of

the proceedings and they defended the accused to the best of their abilities. Delgado vs. CA The accused was convicted. He appealed to the CA, still convicted. The accused moved for a new trial on the ground that his lawyer who assisted him in the tri al court was not actually an attorney. The SC granted that because it violates his right to be heard by counsel. He a pparently did not know that his lawyer was not actually a lawyer. EXCEPTIONS TO GENERAL ELEMENT (C) : 1. Supervening fact/event - If the graver offense develop due to a supervening event/fact. Melo vs. People:The accused was charged for frustrated homicide. When the accus ed was arraigned on Dec. 29, 8:00 A.M., he pleaded not guilty. At 10:00 A.M. on the same day, the victim died. On Jan.4, a charged for consummated homicide wa s filed against the same accused. The accused contended that the consummated ho micide charged could not be filed for it violates his rights against double jeop ardy. SC said that this is a supervening event. When the accused was arraigned , the victim had not yet died. Therefore is as yet no consummated homicide to talk ab out. Since there was this supervening fact which developed after the arraignmen t of the accused, it will not amount to the validation of the double jeopardy. A supervening fact is not yet existing at the time of the arraignment of the acc used.

2. The facts constituting the graver charge became known or were discovered only after the filing of the former information (NEWLY DISCOVERED FACT). So even if it is as field, or the with reasonable vening fact, but xception. not a supervening fact, but at the time the first information w accused had pleaded guilty, these facts were not yet discovered diligence, although not covered by the first exception on super under the second exception, this will now be considered as an e

People vs. Yorac:The accused was prosecuted for frustrated murder for an act whi ch he has been previously charged for slight physical injuries. The victim, aft er being mauled by the accused, went to a medical doctor for examination. The d octor gave a medical certificate stating that the victim had been confined since Apr. 8 up to the present for head injury. He was charged for slight physical i njuries. On Apr. 16, the accused was arraigned and pleaded guilty and was penalized accor dingly. On Apr. 18, prosecution filed another information, this time, for frust rated murder, because according to the prosecution the medical certificate shows contusion with lacerated wound and cerebral concussion. Is this a supervening event. SC said NO. That fact of the injury was already present when the accused was ar raigned on Apr. 16 (only the doctor failed to mention it). It was not a superve ning fact. It was the mistake of the prosecution in not charging the correct of fense. And since the accused already pleaded guilty, it is already covered by t he rule on double jeopardy. 3. In cases where the accused enters a plea of guilt to a lesser offense such is not valid, because the offended party and the prosecutor both had not agreed in writing.

II.SAME ACT Similar or same act/circumstance. This situation contemplates an act punishable by a statute as well as an ordinance. To know if there is jeopardy, look at the act in time and in space. Therefore, the 1 act must be at same time and same space in order to invoke protection agai nst double jeopardy. Ex: X is driving recklessly and under influence of liquor. So if X is convicted or acquitted in reckless driving, can he be charge again for driving under the i nfluence of liquor as violation of a city ordinance? NO MORE, since it is the sa me act which is driving. It doesn t show that at first 5 minutes he is driving rec klessly and next 5 minutes he is under influence of liquor since both occur at t he same act. Ex:X was charged for 40 kilos of shabu but due to connections inside, X was able to bribe the officer in changing the 40 kilos to 40 grams only, and then when X was arraigned he pleaded guilty. So he was penalized for imprisonment only for 6 months since it is only 40 grams. However, in a few months time, court found out that the charge was fraudulent, s o court wanted to charged X for the 40 kilos. The SC said that he cannot anymore be charged since it is still the same act. People vs. Relova. Theft of electricity is both punishable under the Penal Code for Theft, as well as by an ordinance in that municipality of Batangas for thef t of electricity. he was charged under the city ordinance. It was dismissed ba sed on the ground of prescription. Another case, this time, was filed against h im for theft under the penal code. He invoked double jeopardy. SC said the contention is valid. Under the constitution, no person shall be twi ce put in jeopardy in punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act. 4BLUE 95: The act must be punished by an ordinance and a statute. If punished by two statutes or two ordinances, it will not be covered. ?? ?? ?? ??

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