Constitutional Law 2- Prelims (Reviewer)

CHAPTER 1: INTRODUCTION 1. What is CONSTITUTIONAL LAW? It is the study of the maintenance of the proper balance between authority as represented by the three inherent powers of the State and liberty as guaranteed by the Bill of Rights.

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CHAPTER 2: THE NATURE OF THE CONSTITUTION 2. What is a CONSTITUTION? a. According to Cooley, it is that body of rules and maxims in accordance with which the powers of sovereignty are habitually exercised. b. According to Justice Malcolm, it is the written instrument enacted by direct action of the people by which the fundamental powers of the government are established, limited, and defined, and by which those powers are distributed among the several departments for their safe and useful exercise for the benefit of the body politic. 3. What is the purpose of the Constitution? The purpose of the Constitution is to: (PAE) a. Prescribe a permanent framework of a system of government, b. To Assign to the several departments their respective powers and duties, and c. To Establish certain first fixed principles on which government is founded. CLASSIFICATIONS OF THE CONSTITUTION 4. Constitution may be classified as follows: a. As to their origin and history: 1. Conventional constitution- an enacted constitution, formally struck off at a definite time and place following the conscious and deliberate effort taken by a constituent body or ruler. 2. Cumulative Constitution-is a result of a political evolution, not inaugurated at any specific time but changing by accretion rather than by any systematic method. b. As to their form: 1. Written Constitution- is one whose precepts are embodied in one document or set of documents Prepared by: Jo Ann, LLB1E

2. Unwritten Constitution- consists of rules which have not been integrated into a single, concrete form but are scattered in various sources, such as: (SJCCC) 2.1 statutes of fundamental character, 2.2 judicial decisions, 2.3 commentaries of publicists, 2.4 customs and traditions, and 2.5 certain common law principles c. As to manner of amending them: 1. Rigid Constitution- is one that can be amended only by a formal and usually difficult process 2. Flexible Constitution- one that can be changed by ordinary legislation The Constitution of the Philippines is written, conventional, and rigid.

ESSENTIAL QUALITIES OF A WRITTEN CONSTITUTION 5. A good written constitution must be: Broad- not only because it provides for the organization of the entire government and covers all persons or things within the territory of the State, but more so because it is supposed to embody the past, reflect the present, and to anticipate the future. Brief- and confine itself to basic principles to be implemented with legislative details mor adjustable to change and easier to amend. Definite- if not, ambiguity in its provision may result in confusion and divisiveness among the people, and perhaps even physical conflict. Exception: Due process clause- to make them more malleable to judicial interpretation in the light of new conditions and circumstances. ESSENTIAL PARTS OF THE WRITTEN CONSTITUTION 6. Three essential substantive parts: (LGS) a. Constitution of Liberty- a series of prescriptions setting forth the fundamental civil and political rights of the citizens and imposing limitations on the powers of the government as a means of securing the enjoyment of those rights. (SI) b. Constitution of Government- a series of provisions outlining the organization of the government, enumerating its powers, laying down rules relative to its Page 1

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administration, and defining the electorate. (OELD) c. Constitution of Sovereignty- provisions pointing out the mode or procedure in accordance with which the formal changes in the fundamental law may be brought about. PERMANENCE OF THE CONSTITUTION

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b). By a majority vote of all its members, Congress may submit to the electorate the question of whether to call a ConCon or not. 2) Choice of which constituent assembly (either Congress or ConCon) should initiate amendments and revisions is left to the discretion of Congress. In other words, it is a political question. 3) BUT: The manner of calling a ConCon is subject to judicial review, because the Constitution has provided for vote requirements. 4) If Congress, acting as a constituent assembly, calls for a ConCon but does not provide the details for the calling of such ConCon, Congress - exercising its ordinary legislative power - may supply such details. But in so doing, Congress (as legislature) should not transgress the resolution of Congress acting as a constituent assembly. 5) Congress, as a constituent assembly and the ConCon has no power to appropriate money for their expenses. Money may be spent from the treasury only pursuant to an appropriation made by law.

7. How shall the Constitution be interpreted? RULE: In case of doubt, the Constitution should be considered: a. Self-executing rather than non-selfexecuting; b. Mandatory rather than directory; and c. Prospective rather than retrospective. Distinguished: A self-executing provision is a rule that by itself is directly or indirectly applicable without need of statutory implementation whereas a non-self-executing provision is one that remains dormant unless it is activated by legislative implementation. AMENDMENT OR REVISION 8. What are the modes of effecting changes in the Constitution? a. Amendment- isolated or piecemeal change only b. Revision- a revamp or rewriting of the whole instrument 9. What steps are required for the Constitutional changes to be effected by amendment or revision? 1) Proposal- generally made either by the Congress or by a constitutional convention. Amendments may be proposed by: A. Congress, acting as a constituent assembly, by a 3/4 vote of all its members. The power of Congress to propose amendments is NOT part of its ordinary legislative power. The only reason Congress can exercise such power is that the Constitution has granted it such power. B. Constitutional Convention: 1) How a Constitutional Convention may be called a). Congress may call a ConCon by a 2/3 vote of all its members; or Prepared by: Jo Ann, LLB1E Note:

C. Peoples Initiative 1) Petition to propose such amendments must be signed be at least 12% of ALL registered voters. 2) Every legislative district represented by at least 3% of the registered voters therein. 3) Limitation: It cannot be exercised oftener than once every 5 years.

1) While the substance of the proposals made by each type of constituent assembly is not subject to judicial review, the manner the proposals are made is subject to judicial review. 2) Since these constituent assemblies owe their existence to the Constitution, the courts may determine whether the assembly has acted in accordance with the Constitution. 3) Examples of justiciable issues: a) Whether a proposal was approved by the required number of votes in Congress (acting as a constituent assembly). Page 2

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b) Whether the approved proposals were properly submitted to the people for ratification. Position of the Constitutional Convention *Frantz v. Autry- as long as it (ConCon) confines itself within the sphere of its jurisdiction, the ConCon must be considered independent and co-equal with the other departments of the government. Question: Is the constitutional provision on initiative and referendum self-executory? Answer: No. It requires implementing legislation. Congress has approved R.A. 6735, the Initiative and Referendum Law, but the Supreme Court held that the law, as worded, does not apply to constitutional amendment. Therefore, amendment by initiative and referendum must still await a valid law. (Defensor Santiago v. Comelec, March 19, 1997) Question: May a revision of the Constitution be effected through initiative and referendum? Answer: No. The change authorized by Section 2 through initiative and referendum can only be amendment. Question: Must amendments to the Constitution be submitted for approval in a special election or may they be included among issues presented during a general election? Answer: Ideally, amendments should be presented in a special election order that it can command the undivided attention of the electorate. However, this is not required by the Constitution. (Gonzales v. Comelec, 21 SCRA 801-802) Proposal of Revisions 1) By Congress, upon a vote of 3/4 of its members 2) By a constitutional convention 2) Ratification 1) Amendments and revisions proposed by Congress and/or by a ConCon: a) Valid when ratified by a MAJORITY of votes cast in a plebiscite. b) Plebiscite is held not earlier than 60 days nor later than 90 days from the approval of such amendments or revisions. 2) Amendments proposed by the people via initiative: a) Valid when ratified by a MAJORITY of votes cast in a plebiscite. b) Plebiscite is held not earlier than 60 days nor later than 90 days after the certification Prepared by: Jo Ann, LLB1E

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by COMELEC of the petition's sufficiency. 3) Requisites of a valid ratification: a) Held in a plebiscite conducted under the election law; b) Supervised by the COMELEC; and c) Where only franchised voters (registered) voters take part. 4) Issues regarding ratification: a) The Constitution does not require that amendments and revisions be submitted to the people in a special election. Thus, they may be submitted for ratification simultaneously with a general election. b) The determination of the conditions under which proposed amendments/revisions are submitted to the people falls within the legislative sphere. That Congress could have done better does not make the steps taken unconstitutional. c) All the proposed amendments/revisions made by the constituent assemblies must be submitted for ratification in one single plebiscite. There cannot be a piece-meal ratification of amendments/revisions. d) Presidential proclamation is NOT required for effectivity of amendments/revisions, UNLESS the proposed amendments/revisions so provide. JUDICIAL REVIEW OF AMENDMENTS 10. Are amendments subject to judicial review? The amending process, both as to proposal and ratification, raises a judicial question. This is especially true in cases where the power of the Presidency to initiate the amending process by proposals of amendments, a function normally exercised by the legislature, is seriously doubted. (Sanidad v. Comelec, 73 SCRA 333) Thus, the judiciary may declare invalid a proposal adopted by less than three-fourths of the members of the Congress, or a call for a ConCon by less than twothirds of the legislature, or a ratification made by less than a majority of the votes cast, or a plebiscite irregularly held. 11. What is the power of judicial review? It is the Supreme Courts power declare a law, treaty, international or executive agreement, presidential decree, proclamation, order, instruction, ordinance, or regulation

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unconstitutional. This power is explicitly granted by Sec. 5 (2), (a) and (b). Exceptions:

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CHAPTER 3: THE CONSTITUTION AND THE COURTS 12. What is the role of the judiciary in our system of government? The judiciary is the ultimate guardian of the Constitution. It is expected to rectify the wrong and affirm its sacred and solemn duty to uphold the Constitution and the laws of the land.

1. In criminal cases, the constitutional question can be raised at any time in the discretion of the court. 2. In civil cases, the constitutional question can be raised at any stage if it is necessary to the determination of the case itself. 3. In every case, except where there is estoppels, the constitutional question can be raised at any stage if it involves the jurisdiction of the court. NECESSITY OF DECIDING CONSTITUTIONAL QUESTIONas long as there is some basis that can be used by the courts for its decision, the constitutionality of the challenged law will not be touched and the case will be decided on other available grounds. The matter of constitutionality shall, as a rule, be considered if it is the lis mota of the case and raised and argued at the earliest opportunity. Principle of Estoppel- Under this rule, a person cannot question the validity of the law under which he had previously accepted benefits, the SC held that Zandueta was stopped from impugning the constitutionality of the judiciary reorganization law. (Zandueta v. De la Costa, 66 Phil. 615) EFFECTS OF DECLARATION OF UNCONSTITUTIONALITY 15. Two views on the effects of a declaration of the unconstitutionality of a statute. a) Orthodox view- an unconstitutional act is not a law; confers no rights; creates no office; inoperative, as if it had not been passed. b) Modern view- the court in passing upon a question of constitutionality does not annul or repeal the statute if it finds it in conflict with the Constitution. Partial unconstitutionality- valid if two conditions concur: 1) First, that the legislature is willing to retain the valid portions even if the rest of the statute is declared illegal; 2) Second, that the valid portions can stand independently as a separate statute. *The legislative will to this effect may be expressed in what is known as the separability clause. CHAPTER 4: THE FUNDAMENTAL POWERS OF THE STATE 16. What are the fundamental powers of the State? a. Police Power b. Power of Eminent Domain Page 4

VOTING 13. How much vote is needed for the declaration of unconstitutionality? It was not specified. However, the Constitution requires for such declaration the concurrence of a majority of the members who actually took part in the deliberations on the issues in the case and voted thereon. REQUISITES OF A JUDICIAL INQUIRY 14. No constitutional question will be heard and decided by the courts without the following requisites: 1) There must be an actual case or controversy; 2) The question of constitutionality must be raised by the proper party; 3) The constitutional question must be raised at the earliest possible opportunity; and 4) The decision of the constitutional question must be necessary to the determination of the case itself. ACTUAL CASE or CONTROVERSY- involves a conflict of legal rights, an assertion of opposite legal claims susceptible of judicial adjudication. PROPER PARTY- is one who has sustained injury or is in immediate danger of sustaining injury as a result of the act complained of. Article VII, Section 18, of the Constitution now allows ANY CITIZEN to challenge the suspension of the privilege of the writ of habeas corpus or the proclamation of martial law. EARLIEST OPPORTUNITY- if it is not raised in the pleadings, it cannot be considered at the trial, and if not considered in the trial, it cannot be considered on appeal. Prepared by: Jo Ann, LLB1E

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c. Power of Taxation Police power- is the power of the State to regulate liberty and property for the promotion of the general welfare. Power of Eminent Domain- enables the State to forcibly acquire a private property, upon payment of just compensation, for some intended public use. Power of Taxation- enables the State to demand from the members of society their proportionate share or contribution in the maintenance of the government. SIMILARITIES and DIFFERENCES 17. The 3 inherent powers of the State are similar and/or different in the following respects:
Similarities 1.They are inherent in the State and may be exercised by it without need of express constitutional grant 2.They are not only necessary but indispensable. The State cannot continue or be effective unless it is able to exercise them. Differences 1.The POLICE POWER regulates both liberty and property. The POWER OF EMINENT DOMAIN and the POWER OF TAXATION affect only property rights. 2.The POLICE POWER and the POWER OF TAXATION may be exercised only by the government. The POWER OF EMINENT DOMAIN may be exercised by some private entities. 3.The property taken in the exercise of the POLICE POWER is destroyed because it is noxious or intended for a noxious purpose while those under the POWER OF EMINENT DOMAIN and the POWER OF TAXATION is intended for a public use or purpose and is therefore wholesome. 4.The compensation of the person subjected the POLICE POWER is intangible altruistic feeling that he has contributed to the general welfare while those involved in the other powers is more concrete, to wit, a full and fair equivalent of the property expropriated or protection and public improvements for the taxes paid.

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protection. For this reason, its scope expands and contracts with changing needs. Churchill v. Rafferty, 32 Phil. 580, 602-603 (1925) 20. Characteristics of Police Power 1. Most pervasive 2. The least limitable 3. Most demanding of the three powers 4. May be exercised as long as the activity or the property sought to be regulated has some relevance to the public welfare 5. May not be bargained away through the medium of a contract or even a treaty 6. Dynamic, not static, and must move with the moving society it is supposed to regulate 7. May sometimes use the taxing power as an implement for the attainment of a legitimate police objective. 8. Like taxation, the power of eminent domain could be used as an implement of the police power. EXERCISE OF THE POLICE POWER 21. Who exercises police power? The police power is lodged primarily in the national legislature. It may also be exercised by the President and administrative boards as well as the lawmaking bodies on all municipal levels, including the barangay by virtue of a valid delegation. -It lies in the discretion of the legislative department. It is not ministerial so a person cannot file for a mandamus. -The only remedy against legislative inaction is a resort to the bar of public opinion, a refusal of the electorate to return to the legislature members who, in their view, have been remiss in the discharge of their duties. TESTS OF THE POLICE POWER 22. The tests to determine the validity of a police measure are as follows: 1) Lawful Subject- means that the subject of the measure is within the scope of the police power, that is, that the activity or property sought to be regulated affects the public welfare. 2) Lawful Means-requires that the means employed are reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals.

3.They are methods by which the State interferes with private rights.

4.They all presuppose an equivalent compensation for the private rights interfered with.

5.They are exercised primarily by the legislature.

CHAPTER 5: THE POLICE POWER 18. What is Police Power? The power of promoting public welfare by restricting and regulating the use of liberty and property- Professor Freund 19. What is the scope of police power? Police power rests upon public necessity and upon the right of the State and of the public to selfPrepared by: Jo Ann, LLB1E

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CHAPTER 6: EMINENT DOMAIN 23. What is Eminent Domain? Also known as the Power of Expropriation, it is described as the highest and most exact idea of property remaining in the government that may be acquired for some public purpose through a method in the nature of a compulsory sale to the State. 24. What is the first step that the government should do in converting a private property to some public use? The government must first offer to buy it. 25. When is the exercise of the power of eminent domain necessary? It is only necessary when the owner does not want or opposes the sale of his property. Thus, if a valid contract exists between the government and the owner, the government cannot exercise the power of eminent domain as a substitute to the enforcement of the contract. 26. Coercive authority- by its power of eminent domain, it can, upon payment of just compensation, forcibly acquire the needed property in order to devote it to the intended public use. EXERCISE OF THE POWER OF EMINENT DOMAIN 27. Who may exercise the power of eminent domain? National legislature, but its exercise may be validly delegated to other governmental entities and, in fact even to private corporations, like the so-called quasipublic corporations. Under existing laws, the following may exercise the power of expropriation: 1) 2) 3) 4) The Congress. The President of the Philippines. The various local legislative bodies. Certain public corporations, like the Land Authority and the National Housing Authority. 5) Quasi-public corporations like the Philippine National Railways, the Philippine Long Distance telephone Co. and the Meralco. 28. Destruction from necessity distinguished from eminent domain. Destruction from necessity can be undertaken even by private individuals. This is not allowed in the case of Prepared by: Jo Ann, LLB1E eminent domain.

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Destruction from necessity cannot require the conversion of the property taken to public use, nor is there any need for the payment of just compensation. 29. Necessity of Exercise of the Power of Eminent Domain The power of eminent domain should be interpreted liberally in favor of the private property owner. The judiciary has assumed the power to inquire into whether the authority conferred upon a delegate has been correctly or properly exercised by it. This will involve looking into whether the expropriation contemplated by the delegate is necessary or wise. PRIVATE PROPERTY 30. What properties expropriation? can be subject to

Anything that can come under the dominion of man including real and personal, tangible and intangible properties can be subject to expropriation. Exceptions: -money -choses in action 31. What are the elements of the exercise of the power of eminent domain? The elements are: (1) There is taking of private property (2) The taking must be for needed public use (3) There must be just compensation. TAKING 32. What is meant by taking? Taking imports a (1) physical dispossession of the owner, as when he is ousted from his land, or relieved from his watch or his car and is thus deprived of all beneficial use and enjoyment of his property. Taking may include (2) trespass without actual eviction of the owner, (3) material impairment of the value of the property or (4) prevention of the ordinary uses for which the property was intended. 33. Requisites of taking in eminent domain according to Republic v. Castellvi Elements: CODE: E P A P O 1. The expropriator enters the property 2. The entrance must be more than momentary period a

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3. The Entry must be made under warrant or color of legal authority 4. The Property must be devoted to public use 5. The utilization of the property must be in such a way as to oust the owner and deprive him of the beneficial enjoyment of his property. B. Compensable taking does not need to involve all the property interests which form part of the right of ownership. When one or more of the property rights are appropriated and applied to a public purpose, there is already a compensable taking, even if bare title still remains with the owner.

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Congress, the courts cannot question the public use character of the taking. 37. Point of reference for valuating a piece of property: General rule: The value must be that as of the time of the filing of the complaint for expropriation. Exception: When the filing of the case comes later than the time of taking and meanwhile the value of the property has increased because of the use to which the expropriator has put it, the value is that of the time of the earlier taking. BUT if the value increased independently of what the expropriator did, then the value is that of the latter filing of the case. CHAPTER 7: TAXATION 38. Taxes, defined. TAXES are the enforced proportional contributions from persons and property, levied by the State by virtue of its sovereignty, for the support of government and for all public needs. 39. Who may exercise the Power of Taxation? Primarily vested in the national legislature. It may now also be exercised by the local legislative bodies pursuant to a direct authority conferred by Article X, Section 5, of the Constitution. 40. What are the limitations to the exercise of the power of taxation? Its exercise may be reversed in proper cases when it violates the due process and the equal protection clauses. 41. Tax on Kowledge- one imposed on any periodical that exceeds a maximum number of copies per issue EQUAL PROTECTION AND TAXATION 42. Uniformity in Taxation- means that persons or things belonging to the same class shall be taxed at the same rate. 43. Equality in taxation- means that the tax shall be strictly proportional to the relative value of the property. 44. Equitable taxation- connotes that taxes should be apportioned among the people according to their capacity to pay. DOUBLE TAXATION 45. Requisites of Double taxation- There is double taxation when: a. additional taxes are laid b. on the same subject Page 7

29. "PUBLIC USE" Public use, for purposes of expropriation, is synonymous with public welfare as the latter term is used in the concept of police power. Examples of public use include land reform and socialized housing. JUST COMPENSATION 34. What is just compensation? Just compensation is described as the full and fair equivalent of the property taken from the private owner by the expropriator. 35. Ascertaining just compensation Compensation is just if the owner receives a sum equivalent to the market value of his property. Market value is generally defined as the fair value of the property as between one who desires to purchase and one who desires to sell. The point of reference use in determining fair value is the value at the time the property was taken. Thus, future potential use of the land is not considered in computing just compensation. Formula: Just Compensation = Market Value + (Consequential Damages Consequential Benefits) 36. Judicial review of the exercise of the power of eminent domain is necessary: 1. To determine the adequacy of the compensation 2. To determine the necessity of the taking 3. To determine the "public use" character of the taking. However, if the expropriation is pursuant to a specific law passed by Prepared by: Jo Ann, LLB1E

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c. by the same taxing jurisdiction d. during the same taxing period e. for the same purpose. TAX EXEMPTIONS 46. Who are constitutionally exemptions? granted tax

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2. Substantive due process prohibition against arbitrary laws. 49. Who are covered by the due process of law? All persons, natural as well as artificial are protected. However, artificial persons are only covered in so far as their property is protected. Persons -Natural persons both the citizen and the alien -Artificial persons like corporations and partnerships (oednly in so far as their property is concer) 50. Deprivation- connotes denial of the right to life, liberty or property. To deprive means to take away forcibly, to prevent from possessing, enjoying or using something. Deprivation per se is not necessarily unconstitutional. What is prohibited id deprivation of life, liberty or property without due process of law. 51. Life- connotes the integrity of the physical person. It should embrace the enjoyment by the individual of all the God-given faculties that can make his life worth living. 52. Liberty- is the freedom to do right and never wrong. 53. Property- anything that can come under the right of ownership and be the subject of contract. Real, personal, tangible, intangible *Public office- not regarded as property 54. Requisites of SUBSTANTIVE due process: CODE: IM 1. The INTERESTS of the public generally, as distinguished from those of a particular class, requires the interference by the government and 2. The MEANS employed are necessary for the accomplishment of the purpose and not unduly oppressive upon individuals. 55. Essential elements of procedural due process. 1. Notice 2. Hearing 56. Requisites of PROCEDURAL due process: For JUDICIAL proceedings: CODE: C J N O H a) An impartial court or tribunal clothed with judicial power to hear and determine the matter before it. Page 8

1) The following properties are exempt from REAL PROPERTY taxes (CODE: Cha Chu M- CA) a) Charitable institutions b) Churches, and parsonages or convents appurtenant thereto c) Mosques d) Non-profit cemeteries; and e) All lands, buildings and improvements actually, directly and exclusively used for religious, charitable, or educational purposes. 2) All revenues and assets of NON-STOCK NON-PROFIT EDUCATIONAL institutions are exempt from taxes and duties PROVIDED that such revenues and assets are actually, directly and exclusively used for educational purposes. (Art. XIV Sec 4 (3)) 3) Grants, endowments, donations or contributions used actually, directly and exclusively for educational purposes shall be exempt from tax. This is subject to conditions prescribed by law. (Art. XIV. Sec 4 (4) CHAPTER 8: DUE PROCESS OF LAW 47. Due Process, defined. Due process is a guaranty against any arbitrariness on the part of the government, whether committed by the legislature, the executive, or the judiciary. Due Process is: 1. A law which hears before it condemns. 2. Due process of law contemplates notice and opportunity to be heard before judgment is rendered affecting ones person or property (Lopez v. Dir. of Lands) 3. Due process depends on circumstances; it varies with the subject matter and the necessities of the situation. 48. Aspects of Due Process: 1. Procedural due process refers to the mode of procedure which government agencies must follow in the enforcement and application of laws. Prepared by: Jo Ann, LLB1E

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b) Jurisdiction must be lawfully acquired over the person of the defendant or over the property which is the subject of the proceedings. c) The defendant must be given notice and an opportunity to be heard. d) Judgment must be rendered upon a lawful hearing. 57. Minimum appellate jurisdiction of the Supreme Court: a. All cases involving the constitutionality or validity of any i. treaty ii. international or executive agreement iii. law iv. presidential decree v. proclamation vi. order vii. instruction viii. ordinance, or ix. regulation; b. All cases involving the legality of any i. tax ii. impost iii. assessment or iv. toll or v. any penalty imposed in relation thereto; c. All cases in which the jurisdiction of any lower court is in issue d. All criminal cases in which the penalty imposed is reclusion perpetua or higher; and e. All cases in which ONLY errors or questions of law are involved. 58. Cases when notice and hearing may be omitted without violation of the due process: 1. When administrative agencies are exercising their quasi-legislative functions. 2. Abatement of nuisance per se. 3. Granting by courts of provisional remedies. 4. Cases of preventive suspension. 5. Removal of temporary employees in the government service. 6. Issuance of warrants of distraint and/or levy by the BIR Commissioner. 7. Cancellation of the passport of a person charged with a crime. Note:

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8. Issuance of sequestration orders (considered a provisional remedy). 9. Judicial order which prevents an accused from travelling abroad in order to maintain the effectivity of the courts jurisdiction. 10. Suspension of a banks operations by the Monetary Board upon a prima facie finding of liquidity problems in such bank. 1. The right to counsel is a very basic requirement of substantive due process and has to be observed even in administrative and quasi-judicial bodies. 2. The right to appeal is a statutory privilege that may be exercised only in the manner in accordance with law. a. 59. Requisites of procedural due process in ADMINISTRATIVE proceedings: CODE: H E D S H IP 1. The right to a hearing, which includes the right to present ones case and submit evidence in support thereof. 2. The tribunal must consider the evidence presented. 3. The decision must have something to support itself. 4. Evidence supporting the conclusion must be substantial. 5. The decision must be based on the evidence presented at the hearing or at least contained in the record and disclosed to the parties affected. 6. The tribunal or body or any of its judges must act on its or his own independent consideration of the law and facts of the controversy, and not simply accept the views of a subordinate in arriving at a decision. 7. The board or body should, in all controversial questions, render its decision in such a manner that the parties to the proceeding can know the various issues involved and the reasons for the decision rendered. Note: 1. What is required is not actual hearing, but a real opportunity to be heard. 2. The requirement of due process can be satisfied by subsequent due hearing. 3. Violation of due process: when same person reviews his own decision on appeal. 4. Notice and hearing are required in judicial and quasi-judicial proceedings, but not in the promulgation of general rule. Page 9

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CHAPTER 9: EQUAL PROTECTION 60. What is Equal Protection? It simply requires that all persons or things similarly situated should be treated alike, both as to privileges conferred and liabilities enforced. 61. Classification- the grouping of persons or things similar to each other in certain particulars and different from all others in these same particulars. 62. Requisites for valid classification for purposes of the equal protection clause The classification must: CODE: SGEE 1. Based upon SUBSTANTIAL DISTINCTIONS 2. Be GERMANE to the purposes of the law 3. NOT LIMITED TO EXISTING CONDITIONS only 4. APPLY EQUALLY to all members of the SAME CLASS. CHAPTER 10: SEARCHES AND SEIZURES 63. Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the person or things to be seized. 64. Who is a proper party to invoke the right against unreasonable searches and seizures? This right is personal and may be invoked only by the person entitled to it. i.e owner of the premises searched 65. Requisites for a valid warrant: CODE: P J E D 1. It must be issued upon PROBABLE CAUSE. 2. The existence of probable cause is determined personally by the JUDGE. 3. The judge must EXAMINE UNDER OATH the complainant and the witnesses he may produce. 4. The warrant must PARTICULARLY DESCRIBE the place to be searched and person or things to be seized. Prepared by: Jo Ann, LLB1E

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66. Probable cause- such facts and circumstances antecedent to the issuance of the warrant that in themselves are sufficient to induce a cautious man to rely on them and act in pursuance thereof. 67. Existence of probable cause DETERMINED PERSONALLY BY THE JUDGE The judge is NOT required to personally examine the complainant and his witnesses. What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause (Soliven v. Makasiar, 167 SCRA 394). The Court cited Rule 112, Sec. 6 of the Rules of Court, providing that a judge may issue a warrant of arrest only if he is satisfied by the investigation conducted by him or the prosecutor that there is probable cause. 68. Prosecutor and judge distinguished as to their objectives: (Ho v. People) The prosecutor determines whether there is a reasonable ground to believe that the accused is guilty and should be held for trial. The judge determines if the warrant of arrest should be issued to place the accused in immediate custody so as not to frustrate the ends of justice. 69. How does a judge determine probable cause? Procedure: 1. The judge personally evaluates the report and supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest or 2. If on the basis thereof, the judge finds no probable cause, he may disregard the fiscals report and require the submission of supporting affidavits of witnesses to aid him in arriving at the conclusion as to the existence of probable cause. Soliven v. Makasiar 70. How shall the judge examine the applicant for a warrant? According to Rule 126, Sec. 4 of the Rules of Court, the Judge , before issuing a warrant, must personally examine in the form of searching questions and answers, in writing and under oath the complainant and the witnesses that he may produce on facts personally known to them , and attach to the record their sworn statements together with any affidavits submitted. Page 10

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71. Test of a Valid Affidavit The affidavits, to be considered valid, should be drawn in such a manner that the affiant could be charged with perjury if the allegations contained therein are found to be untrue. 72. JOHN DOE WARRANT A John Doe warrant can satisfy the requirement of particularity of description if it contains a descriptio personae such as will enable the officer to identify the accused (People v. Veloso, 48 Phil. 159) *a description of a place to be searched is sufficient if the officer with the warrant can , with reasonable effort, ascertain and identify the place intended. 62. GENERAL WARRANT A general warrant is one that does not allege any specific acts or omissions constituting the offense charged in the application for the issuance of the warrant. It contravenes the explicit demand of the Bill of Rights that the things to be seized be particularly described. 73. What are the properties subject to seizure? Under Rule 126, Section 2, of the Rules of Court, the following are subject to search and seizure: (1) Property subject of the offense; (2) Property stolen or embezzled and other proceeds or fruits of the offense; and (3) Property used or intended to be used as a means of committing an offense. 74. Admissibility of Illegally seized evidence RULE: Articles illegally seized are not admissible as evidence. Exception: -when evidence illegally seized will be used in the judicial or administrative action that may be filed against the officer responsible for its illegal seizure. -when accused, before arraignment, did not raise the issue of the admissibility of the evidenceagainst him on the ground that it had been illegally seized (waiver) 75. Warrantless Searches and Seizures A. VALID WARRANTLESS ARRESTS A peace officer or even a private person may , without a warrant, arrest a person: 1. When such person has in fact just committed, is actually committing, or is attempting to commit an offense in his the presence; Prepared by: Jo Ann, LLB1E

2nd Sem, A.Y. 2012-2013

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 committed it. 3. When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. B. VALID WARRANTLESS SEARCHES Rule 113, Sec. 5, of the Rules of Court provides that valid warrantless searches are limited to 1) 2) 3) 4) 5) 6) Customs searches; Searches of moving vehicles Seizure of evidence in plain view Consent searches Searches incidental to a lawful arrest; and stop and frisk

Guidelines: 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 escaping 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 made in the area within the reach of the person arrested 2. Search of moving vehicles A. 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. B. The search of a moving vehicle must be based on probable cause.

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3. Seizure of goods concealed to avoid customs duties/authorized under the Tariffs and Customs Code A. The Tariffs and Customs Code authorizes persons having police authority under the Code to effect search and seizures without a search warrant to enforce customs laws. B. Exception: A search warrant is required for the search of a dwelling house. C. Searches under this exception include searches at borders and ports of entry. Searches in these areas do not require the existence of probable cause 4. Seizure of evidence in plain view A. To be a valid warrantless search, the articles must be open to the eye and hand. B. The peace officer comes upon them inadvertently. 5. Waiver of right A. Requisites of a valid waiver: i. The right exists. ii. The person had actual or constructive knowledge of the existence of such right. iii. There is an actual intention to relinquish such right. B. The right against unreasonable searches and seizures is a personal right. Thus, only the person being searched can waive the same. C. Waiver requires a positive act from the person. Mere absence of opposition is not a waiver. D. The search made pursuant to the waiver must be made within the scope of the waiver. Note: 1. Checkpoints: as long as the vehicle is neither searched nor its occupants subjected to a body search and the inspection of the vehicle is limited to a visual search = valid search (Valmonte V. De Villa) 2. The 1987 Constitution has returned to the 1935 rule that warrants may be issued only by judges, but the Commissioner of Immigration may order the arrest of an alien in order to carry out a FINAL deportation order. VALID WARRANTLESS ARRESTS 4. Waiver of an invalid arrest:

2nd Sem, A.Y. 2012-2013

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 officers presence. 76. Privacy of Communication and Correspondence This right rules out eavesdropping in conversations through the use of electronic gadgets and thus covers with its protection even intangible things. 77. Implementation of RA 4200

R.A. 4200 (Anti-Wiretapping Act)

1. The law does not distinguish between a party to the private communication or a third person. Hence, both a party and a third person could be held liable under R.A. 4200 if they commit any of the prohibited acts under R.A. 4200 (Ramirez v. Ca) 2. The use of a telephone extension to overhear a private conversation is not a violation of R.A. 4200 because it is not similar to any of the prohibited devices under the law. Also, a telephone extension is not purposely installed for the purpose of secretly intercepting or recording private communication. (Gaanan v. IAC, 145 SCRA 112) Types of communication protected: Letters, messages, telephone calls, telegrams and the like. Page 12

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Exclusionary rule: Any evidence obtained shall be inadmissible for any purpose in any proceeding. However, in the absence of governmental interference, the protection against unreasonable search and seizure cannot be extended to acts committed by private individuals. (People v. Martin)

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Prepared by: Jo Ann, LLB1E

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