II.

CONSTITUTIONAL LAW BILL OF RIGHTS

Police Power

01. Define police power. What are the two tests, requisites or limitations for the valid exercise of police power?

ANSWER: Police power is the power to make, ordain, and establish all manner of wholesome and reasonable laws, statutes, ordinances whether with penalties or without, not repugnant to the Constitution, the good and welfare of the commonwealth, and for the subjects of the same. (MMDA vs . Garin, GR No. 130230, April 15, 2005) The two tests for the valid exercise of police power are: 1) Lawful Subject the interest of the public in general, and not of a particular subject, requires an interference with private rights, and 2) Lawful Means- the means adopted must be reasonably necessary for the accomplishment of the purpose It must not be unduly oppressive upon individuals. (City of Manila vs. Laguio, GR No.118127, April 12, 2005)

02. Upon whom is police power lodged? May it be delegated? What are the limitations if the exercise of police power is merely delegated?

ANSWER: Police power is lodged with the National Legislature which in turn may delegate it to local government units. Congress has delegated police to the LGUs in the Local Government Code of 1991. The other limitations if the exercise of police power is merely delegated are: 1) the delegation is by express provision of law, 2) it must be exercised within the territorial limits of the delegate, and 3) such exercise is not contrary to law.

03. Does the MMDA have the power to confiscate, suspend or revoke drivers licences?

ANSWER: NO. the MMDA does not have the power to confiscate, suspend or revoke drivers licences without a traffic law or regulation validly enacted by the legislature or those of the local government units to whom legislative powers have been delegated. Once there is such a law, MMDA is duty-bound to confiscate, suspend or revoke drivers licences in the exercise of its mandate of transport and traffic management. License to operate a motor vehicle is not a property, but a privilege granted by the state which may be suspended or revoked by the state in the exercise of its police power, in the interest of public safety and welfare, subject to the procedural requirements of due process. (MMDA vs . Garin, supra.)

04. The Expanded Senior Citizens Act of 2003 grants to senior citizens 20% discount from all establishments relative to the utilization of services in hotels and similar establishments as well as purchases of medicines. State the nature or justification of the law.

ANSWER: The law is a legitimate exercise of police power which, similar to the power of eminent domain, has the general welfare for its object. When conditions so demand as determined by the legislature, property rights must bow to the primacy of police power because property rights, though sheltered by due process, must yield to the general welfare. (Carlos Super Drug Corp. vs. DSWD, GR No. 166494, January 29, 2007)

Power of Eminent Domain

05. What is the power of eminent domain? What are the constitutional limitations in the exercise of the power of eminent domain?

ANSWER: The power of eminent domain is the rightful authority, which exists in every sovereignty to control and regulate those rights of public nature which pertain to its citizens in common, and to appropriate and control individual property for the public benefit, as the public safety, necessity, convenience, or welfare may demand. The exercise of the power of eminent domain is constrained by two constitutional provisions: (1) that private property shall not be taken for public use without just compensation under Article III, Section 9 on Bill of Rights and (2) the due process clause which states that no person shall be deprived of life, liberty or property without due process of law also under Article III, Section 1. (Lagcao vs. Labra, GR No. 155746, October 13, 2004) -1-

CONSTITUTIONAL LAW /P02

06. Distinguish the power of eminent domain from police power.

ANSWER: In the exercise of the power of eminent domain, the taking of property is for public use while in the exercise of police power, the taking is a mere incident to a valid regulation to promote public interest. In the exercise of eminent domain, property or right of property is taken from the owner and transferred to a public agency to be enjoyed by its as its own while in the exercise of police power, the taking of property or a right therein is accomplished not by transfer of ownership but by destroying the property or impairing its value.
07. Distinguish the effects of the exercise of police power and the power of imminent domain in relation to the right to private property.

ANSWER: In the exercise of police power, there is a limitation or restriction of property interests to promote public welfare which involves no compensable taking. Compensation is necessary only when the states power of eminent domain is exercised. In eminent domain, property is appropriated and applied to some public purpose. Property condemned under the exercise of police power, on the other hand, is noxious or intended for noxious or forbidden purpose, and consequently, is not compensable. The restriction imposed to protect lives, public health and safety from

danger is not a taking. It is merely the prohibition or abatement of noxious use which interferes with paramount right of the public. (Social Justice Society vs. Atienza, 545 SCRA 92)
08. May LGUs exercise the power of eminent domain? May LGUs validly expropriate small lots to accommodate no more than few tenants or squatters?

ANSWER: YES. While LGUs have no inherent power of eminent domain, by virtue of the Local Government Code, Congress conferred upon LGUs the power to expropriate. However, condemnation of small private lots in an irrational or piecemeal fashion or the random expropriation of small lots to accommodate no more than a few tenants or squatters is certainly not the condemnation for public use contemplated by the Constitution. This is depriving a citizen of his property for the convenience of a few without perceptible benefit to the public. While housing is one of the most serious problems of the country, LGUs do not possess unbridled authority to exercise their power of eminent domain in seeking solutions to this problem. (Lagcao vs. Labra, supra)
09. May a barangay government expropriate a property which shall be used as a feeder road for the benefit of the residents of Purok Paraiso, yet the Purok is within a private subdivision?

ANSWER: NO. The expropriation was intended for private purpose. It would benefit only the owners of the subdivision who will be able to circumvent the commitment to provide road access to the subdivision and relieved from spending their funds for a right of way. The intended expropriation of private property for the benefit of a private individual is clearly proscribed by the Constitution, declaring that it should be for public use or purpose. Likewise, public fund can be used only for a public purpose. In this proposed condemnation, government funds would be employed for the benefit of a private individual without any legal mooring. (Barangay Sindalan vs. CA, GR No. 150640, March 22, 2007)
08. Spouses H and W were the lessees of a parcel of land in Quezon City. A law was enacted authorizing the national government to expropriate certain properties, among others, for the extension of EDSA. The land leased by H and W was part of those expropriated under the said law. They were not included in the expropriation proceedings because they were mere lessees of the property, according to the Solicitor General. To be entitled to just compensation, should the defendant be the owner of the property expropriated?

ANSWER: NO. The defendants in an expropriation case are not limited to the owners of the property condemned. They include all other persons, owning, occupying, or claiming to own the property. When a parcel of land is taken by eminent domain, the

owner of the fee is not necessarily the only person entitled to compensation. A lessee, mortgagee, or a vendee in possession under an executory contract of the land has the right to take part in the expropriation proceeding. If a person claiming an interest in the land sought to be condemned is not made a party, he is given the right to intervene and lay claim to the compensation. (Knecht vs. CA, GR No. 108015, May 20 1998) CONSTITUTIONAL LAW /P03
10. A property was converted into an airport by the Air Transportation Office (ATO) depriving the owners of the beneficial use and enjoyment of the same as early as 1948 without an expropriation proceeding. It was contended that there was taking, hence, just compensation should be reckoned from 1948. Is the contention legally tenable?

ANSWER: NO. As a general rule, the determination of just compensation in eminent domain cases is reckoned from the time of taking. (Gabatin vs. LBO, 444 SCRA 176) In this case, however, application of the said rule would lead to grave injustice. Note that the ATO had been using the property as airport since 1948 without having instituted the proper expropriation proceedings. To peg the value of the property at the time of taking in 1948, despite the exponential increase in its value considering the lapse of over half a century, would be iniquitous. ATO cannot conveniently invoke the right of eminent domain to take advantage of the ridiculously low value of the property at the time of taking that it arbitrarily chooses to the prejudice of the owners. Justice and fairness dictate that the appropriate reckoning point for the valuation of the property is when the trial court made its order of expropriation in 2001. (Heirs of Mateo Pidacan and Romana Eigo vs. ATO, GR No. 162779, June 15, 2007)
Concept of Due Process

11. What is due process? What are its purposes? Who are covered by the due process clause?

ANSWER: There is no controlling and precise definition of due process but its standard may be described. This standard may be described as responsiveness to the supremacy of reason, obedience to the dictates of justice, and as such, it is a limitation upon the exercise of police power. Among the purposes of the guaranty of the right to due process area: 1) to prevent governmental encroachment against the life, liberty and property of individuals, and 2) to secure to all persons equal and impartial justice and the benefit of the general law. (City of Manila vs. Laguio, supra.)

The guarantee serves as protection against arbitrary regulation, and private corporations and partnerships are persons within the scope of the guaranty insofar as their property is concerned. (Ibid.)
Due Process and Right to Counsel

12. Does the due process clause encompass the right to be assisted by counsel during and administrative inquiry?

ANSWER: NO. In an administrative proceeding, a respondent has the option of engaging the services of counsel or not. Thus, the right to counsel is not imperative in administrative investigations because such inquiries are conducted merely to determine whether there are facts that merit disciplinary measures against erring public officers and employees, with the purpose of maintaining the dignity of government service. The right to counsel is not indispensable to due process unless required by the Constitution or the law. (Lumiqued vs. Exevea, 282 SCRA 125 and Remolana vs. CSC, 362 SCRA 304)

Due Process and Preliminary Investigation

13. The charge filed against petitioner was modified from violation of Art. 220 (Technical Malversation) of the Revised Penal Code to violation of Secs. 3(e) and 3(h), RA 3019. Petitioners claim that their right to due process was denied since they were not given the opportunity to answer and present evidence on the new charge in a preliminary investigation. Decide.

ANSWER: The petition lacks merit. The right to a preliminary investigation is not a constitutional right but it is merely conferred by statute. The absence of a preliminary investigation does not impair the validity of Information or otherwise render the same defective. The denial of the motion for reinvestigation cannot likewise invalidate the Information or oust the court of its jurisdiction over the case. Petitioners were not denied due process because they had the opportunity to refute the charges by filing their counter-affidavits. The modification of the offense charged was based on the same set of facts and the same allegedly illegal acts. Furthermore, the right to preliminary investigation is deemed waived when the accused fails to invoke it before or at the time of entering a plea on arraignment. (Budiongan vs. dela Cruz, GR No. 170288, September 22, 2006)

CONSTITUTIONAL LAW /P04

14. A respondent claim denial of due process when she was given the opportunity to file her affidavits and other pleadings and submit evidence before the DOJ during the preliminary investigation of her case and before the Information was filed against her. Decide.

ANSWER: There is no denial of due process. Due process is merely an opportunity to be heard. In addition, preliminary investigation conducted by the DOJ is merely inquisitorial. It is not a trial of the case on the merits. Its sole purpose is to determine whether a crime has been committed and whether the respondent therein is probably guilty of the crime. It is not the occasion to the full and exhaustive display of the parties evidence. Hence, if the investigating prosecutor is already satisfied that he can reasonably determine the existence of probable cause based on the parties evidence thus presented, he may terminate the proceedings and resolve the case. (Santos vs. People, GR No. 173176, August 26, 2008)

Concept of Equal Protection

15. What is your understanding of the equal protection clause? Does it take way from the State the power to classify? What are the requisites of valid classification?

ANSWER: The guaranty to equal protection and uniformity is satisfied 1) when the laws operate uniformly on all persons under similar circumstances, and 2) all persons are treated in the same manner in terms of both privileges conferred and liabilities imposed, the conditions not being different, and that favoritism and preference are not allowed. NO. The equal protection clause does not take away from the state the power to classify in the adoption of police power laws, but admits of the exercise of the wide scope of discretion in that regards and avoids what is done only when it is without any reasonable basis, and therefore is purely arbitrary. (Re: Request for the grant of Special Distortion Allowance, A.M. No. 03-11-25-SC, October 1, 2004)

The requisites of valid classification are: 1) there must substantial distinctions which must make for real differences; 2) the classification must be germane to the issue; 3) it must apply not only to existing conditions but future conditions as well; and 4) it must be applicable to all members of the same class. (People vs. Vera, 65 Phil 56)
15. The petitioners assail the validity of Administrative order No. 1, which prohibited motorcycles on limited access highways on the basis of RA 2000 (Limited Access Highway Act). The petitioner seeks redress from the motorcycle ban under the equal protection clause, because AO 1 singled out motorcycles. Decide.

ANSWER: There is a real and substantial distinction between a motorcycle and other motor vehicles. Not all motorized vehicles are created equal real and substantial differences exist between a motorcycle and other forms of transport sufficient to justify its classification among those prohibited from plying the toll ways. (Mirasol vs. DPWH, GR No. 158793, June 8, 2006)
Does the VAT Law violate the due process and equal protection clauses when it reduced the input credits to only 70% of output VAT?

ANSWER: NO. Input VAT is not a property or a property right within the constitutional purview of the due process clause being merely a statutory privilege. Persons have no vested rights in statutory privileges. The State may change or take away rights, which were created by laws of the State, although it may not take away property, which was vested which was vested by virtue of such rights. (Abakada Guro PartyList vs. Ermita, GR No. 168056, Sept. 1, 2005)
17. Does a city ordinance that prohibit motels and inns in the Ermita-Malate area but not outside of this area violate the equal protection clause?

ANSWER: YES. A city ordinance violates the equal protection clause where it prohibits motels and inns but not pension houses, hotels, lodging houses or other similar establishments despite the fact that these establishments are all similarly situated. Furthermore, it prohibits the business and operation of motels in the Ermita-Malate area but not outside of this area. There is no valid classification because a noxious establishment does not become any less noxious if located outside the area. (City of Manila vs .Laguio, supra.)

CONSTITUTIONAL LAW /P05 Search and Seizure; Probable Cause

18. What are the requisites for issuing a search warrant? What are the requisites in the determination of the existence of probable cause?

ANSWER: A search warrant shall not issue but 1) upon probable clause 2) in connection with one specific offense a) to be determined personally by the judge b) after examination under oath or affirmation of i) the complainant ii) the witness he may produce, and 3) particularly describing a) the place to be searched and b) the things to be seized i) anywhere in the Philippines.

Under the Constitution and the Rules of Court, the issuance of a search warrant is justified only upon a finding of probable cause. In determining the existence of probable cause, it is required that: (1) the judge must examine the complainant of his witness personally; (2) the examination must be under oath; and (3) the examination must be reduced in writing in the form of searching questions and answers. In People vs. Mamaril, GR No. 147607, January 22, 2004, the records only show the existence of an application for search warrant, The affidavits of complainants witnesses and return of the search warrant. The prosecution failed to prove that the issuing judge put into writing his examination of the applicant and his witnesses in the form of searching questions and answers before issuance of the search warrant, rendering the search warrant invalid and the evidence seized pursuant thereto is inadmissible.
19. May the constitutional protection against unreasonable searches and seizures be extended to acts committed by private individuals?

ANSWER: NO. As held in People vs. Marti, 193 SCRA 57, the constitutional protection against unreasonable searches and seizures refers to the immunity of ones person from interference by government and it cannot be extended to acts committed by private individuals so as to bring it within the ambit of alleged unlawful intrusion. (People vs. Mendoza, 301 SCRA 66)

20. Can the place to be searched, as set out in the warrant, be amplified or modified by the officers own personal knowledge of the premises, or the evidence they adduce in support of their application for warrant?

ANSWER: NO. Such a change is proscribed by the Constitution which requires inter alia the search warrant to particularly describe the place to be searched as well as the

persons or things to be seized. It would concede to the police officers the power of choosing the place to be searched, even if it not be that delineated in the warrant. It would open wide the door to abuse of the search process, and grant to officers executing a search warrant that discretion which the Constitution has precisely removed from them. The particularization of the description of the place to be searched may properly be done only by the judge, and only in the warrant itself; it cannot be left to the discretion of the police officers conducting the search. (People vs. CA, 291 SCRA 400)

19. What are the instances of valid warrantless searches and seizures?

ANSWER: 1) search incident to a lawful arrest 2) when it involves prohibited articles in plain view. 3) search of a moving vehicle 4) consented warrantless search 5) customs searches 6) searches without warrant of automobiles 7) Stop and frisk 8) Exigent and emergency circumstances . (People vs. Nuevas, GR No. 170233, Feb. 22, 2007)

20. What is probable cause in warrantless arrest?

ANSWER: Probable cause means an actual belief or reasonable ground of suspicion. Thus, there is no personal knowledge of facts where the police officers merely relied on information given to them by others such as a report of the killing, information from a witness who saw the killing, the physical description given of the last man who saw the victim fitting the person arrested and information where this man lived. (People vs. Cubcubin, GR No. 136267,July 10, 2001)

21. What is the plain view doctrine?

ANSWER: Objects falling within the plain view of an officer who has a right to be in the position to have that view are subject to seizure even without search warrant and may be introduced in evidence. CONSTITUTIONAL LAW /P06

22. What is the Fruit of the Poisoned Tree Doctrine?

ANSWER: Evidence obtained from illegal search and seizure shall be inadmissible for any purpose in any proceedings. [Art. III, Sec. 3(2)] Privacy of Communication

23. ANDREA and MONICA had confrontation in the latters office. ANDREA secretly taped the conversation. The conversation between them bordered on humiliating and vexing the personality and dignity of MONICA for which she filed a civil case for damages. During the hearing ANDREA produced the recorded tape to prove that MONICA indeed insulted her. MONICA, in a countersuit filed a criminal case against ANDREA for violation of RA 4200 which prohibits and penalizes wire tapping and other violations of private communications. ANDREA moved to dismiss the criminal case on the ground that the allegations do not constitute an offense and that the taping of conversation between the parties is not covered by RA 4200. The trial court granted said motion which decision was reversed by the Court of Appeals. ANDREA elevated the case to the Supreme Court on certiorari. Is ANDREA liable for violation of RA 4200? Decide.

ANSWER: YES. Section 1 of RA 4200 clearly and unequivocably prohibits any person, not authorized by all the parties to any private conversation, to secretly tape record any communication by means of a tape recorder. Congressional records support the view that the intention of the lawmakers in enacting RA 4200 is to make illegal any unauthorized tape recording of private conversation or communication taken by either of the parties themselves or third persons. Absent a clear showing that both parties to the telephone conversations allowed the recording of the same, the inadmissibility of the subject tapes is mandatory under RA 4200. (Ramirez vs. CA, 248 SCRA 590 and Salcedo-Ortanez vs. CA, 235 SCRA 111)

In Mamba vs. Judge Garcia, A.M. No. MTJ-96-1110, June 25, 2001, the Supreme Court likewise ruled that the investigating judges reliance on the taperecorded conversation is erroneous. The recording of private conversation, without the consent of the parties, contravenes the provisions of RA 4200, otherwise known as the Anti-Wire Tapping Law, and renders the same inadmissible in evidence in any proceeding. The law covers even those recorded by persons privy to the conversation, as in this case.

24. Can a detention prisoner validly invoke his right to privacy of communication guaranteed under Section 3 of the Bill of Rights?

ANSWER: I qualify. While letters containing confidential communication between detainees and their lawyers enjoy a limited protection in that prison officials can open and inspect the mail for contraband but could not read the contents thereof without violating the inmates right to correspondence, letters folded but not in a sealed

envelope and are not confidential communication between the detainees and their lawyers, the officials of the ISAFP Detention Center could read the letters. If the letters are marked confidential communication between detainees and their lawyers, the detention officials should not read the letters but only open the envelopes for inspection in the presence of the detainees. (Alejano vs. Cabuay, 468 SCRA 188)
Right to Privacy and Right Against Self-incrimination
25. Does a Senate Committee inquiry violate Philcomsat Holding Corporation and Standard Charter Banks right to privacy and right against self-incrimination?

ANSWER: NO. Since the inquiry focused on the acts committed in the discharge of their duties as officers and directors of said corporations, they have no reasonable expectation of privacy on matters involving their offices in a corporation where the government has interest. Such matters are of public concern and over which the people have the right to information. This goes to show that the right to privacy is not absolute where there is an overriding compelling state interest.(Sabio vs. Gordon, 504 SCRA 704) Employing the rational basis relationship test, as laid down in Morfe vs. Mutuc, 22 SCRA 424, there is no infringement on the individuals right to privacy as the requirement to disclose information is for valid purpose, in this case, to ensure that the government agencies involved in regulating banking transactions adequately protect the public who invest in foreign securities. Suffice it to say that this purpose constitutes a reason compelling enough to proceed with the assailed legislative investigation. (Standard Charter Bank vs. Senate Committee on Banks, GR 167173, December 27, 2007) CONSTITUTIONAL LAW /P07

The right against self-incrimination may be invoked by the said directors and officers of the corporations only when the incriminating question is being asked, since they have no way of knowing in advance the nature or effect of the questions to be asked of them. That this right may possibly violated or abused is no ground for denying the Senate Committees their power of inquiry. When this power is abused, it may be presented before the courts. What is important is that the Senate Committees have sufficient Rules to guide them when the right against self-incrimination is invoked. (Sabio vs. Gordon, supra.) An accused occupies a different tier of protection from an ordinary witness. Whereas an ordinary witness may be compelled to take the witness stand and claim the privilege as each question requiring an incriminating

answer is shot at him, an accused may altogether refuse to take the witness stand and refuse to answer any questions. In this case, petitioners neither stand as accused in criminal case nor will they be subjected by the respondent to any penalty by reason of their testimonies. Hence, they cannot altogether decline appearing before respondent, although they may invoke the privilege when a question calling for an incriminating answer is propounded. (Standard Charter Bank vs. Senate Committee, supra)

Freedom of Expression
26. The National Telecommunications Commission issued this press release: NTC GIVES FAIR WARNING TO RADIO AND TELEVISION OWNERS TO OBSERVE ANTI-WIRETAPPING LAW AND PERTINENT CIRCULARS ON PROGRAM STANDARDS. Petitioner Chavez filed a petition alleging that the acts of respondents are violation of the freedom on expression and of the press, and the right of the people on information on matters of public concern.

ANSWER: It is clear that the challenged acts in the case at bar need to be subjected to the clear and present danger rule, as they are content-based restrictions. The acts of the respondents focused solely on but one subject a specific content- fixed as these were on the alleged tape conversation between the President and a COMELEC official. Undoubtedly, these did not merely provide regulations as to the time, place or manner of the dissemination of speech and expression. The records of the case at bar, however are confused and confusing, and respondents evidence fall short of satisfying the clear and present danger test. (Chavez vs. Gonzalez, GR No. 168338, February 15, 2008)

Freedom of Religion/Separation of Church & State

27. Can the courts, in the performance of their judicial functions, exercise control over church authorities in the performance of their discretionary and official functions?

ANSWER: NO. The expulsion/excommunication of members of a religious institution or organization is a matter best left to the discretion of the officials, and laws and canons, of said institution/organization. It is not for the courts to exercise control over church authorities in the performance of their discretionary and official functions. In disputes involving religious institution or organization, there is one area which the Court should not touch: doctrinal and disciplinary matters. The amendments of the

constitution, re-statement of articles of religion and abandonment of faith or abjuration alleged by the appellant, having to do with faith, practice, doctrine, form of worship, ecclesiastical law, custom and rule of a church and having reference to the power of excluding from the church those allegedly unworthy of membership, are unquestionably ecclesiastical matters which are outside the province of civil courts. (Taruc vs. Cruz, 453 SCRA 123)

28. What do you understand by the Doctrine of BENEVOLENT NEUTRALITY or ACCOMMODATION?

ANSWER: The doctrine believes that the wall of separation that divides the church and the state is meant to protect the church from the state. The principle recognizes that the state is not hostile to religion because it plays an important role in public life. It believes that the wall of separation does not require the state to be adversary, rather, the state must be neutral in its relations with groups or religious believers and nonbelievers. Under the doctrine, accommodation of religion may be allowed not to promote the governments favored form of religion, but to allow individuals and groups to exercise their religion without hindrance. Thus, the Philippine Constitution provides for tax exemption of church properties, salary of religious officers in government institutions, and optional

CONSTITUTIONAL LAW /P08

religious instructions in public schools. The adoption of the benevolent neutralityaccommodation approach does not mean that the Court ought to grant exemption every time a free exercise claim comes before it. (Estrada vs. Escritor, 492 SCRA 1)

Liberty of Abode & Travel

28. What are the limitations on liberty of abode? What are the limitations on the right to travel?

ANSWER: The limitation on the liberty of abode is upon lawful order of the court while on the right to travel is in the interest of national security, public safety or public health, as may be provided by law. (Art. III, Sec. 6)

Right to Information
29. Does the COMELEC have the constitutional duty to disclose and release the names of the nominees of the party-list groups.

ANSWER: YES. The right to information is a public right where the real parties in interest are the public or the citizens. The right to information is limited to matters of public concern and is further subject to such limitations as may be provided by law. Also, the policy of public disclosure on Art. II Sec. 28, is confined to transactions involving public interest and is subject to reasonable conditions prescribed by law. However, no national security is involved in the disclosure of the names of the nominees of the party-list groups in question. (Bantay RA 7941 vs. COMELEC, GR No. 177271, May 4, 2007)

30. Are the offers made by the Philippine and Japanese governments during the negotiations of the JapanPhilippines Economic Partnership Agreement (JPEPA) covered by the executive privilege on diplomatic communications?

ANSWER: YES. In Akbayan Citizens Action Party vs. Aquino, GR No. 170516,July 16, 2008, it was held that the Japanese representatives submitted their offers with the understanding that historic confidentialitywould govern the same and that they continue to be privilege even after the agreement has been published. Disclosing these offers could impair the ability of the Philippines to deal not only with Japan but with other foreign governments in future negotiations. A ruling that Philippines offers in treaty negotiation should now be open to public scrutiny would discourage future Philippine representatives from frankly expressing their views during negotiations. The diplomatic negotiation privilege bears a close resemblance to the deliberative process and presidential communication privilege.

Right to Form Associations

31. Does the right the right to strike form a part of the freedom of expression?

ANSWER: NO. The claim that the right to strike is a part of the freedom of expression and the right to peacefully assemble and petition the government for redress of grievances, and should thus, be recognized even in the case of government employees, was rejected by the Supreme Court in GSIS vs. Kapisanan ng Mga Manggagawa sa GSIS, GR No. 170132, December 6, 2006

Non-impairment Clause

32. What is the non-impairment clause?

ANSWER: The non-impairment clause is a constitutional prohibition for Congress and Sanggunians to enact a law or ordinance which changes the terms of a legal contract between parties, either in the time or mode of performance, or imposes new conditions, or dispenses with those expressed or authorizes for its satisfaction something different from that provided in its term. It impairs the obligation of a contract and is therefore null and void. To constitute impairment, the law must affect a change in the rights of the parties with reference to its other and not with respect to non-parties. (PHILRECA vs. The Secretary, DILG, GR No. 143076, June 10, 2003)

33. United BF Homeowners Associations, Inc., questions the constitutionality of a zoning ordinance reclassifying certain portions of BF Homes Paranaque from residential to commercial zone because it impairs the contracts between the developer and the lot buyers. One of the promises of the developer is that the property shall be used for residential purposes only. Is the ordinance violative of the non-impairment clause in the Bill of Rights?

CONSTITUTIONAL LAW /P09

ANSWER: NO. The Court has upheld in several cases the superiority of police power over the non-impairment clause. The constitutional guarantee of non-impairment of contracts is limited by the exercise of police power of the State, in the interest of public health, safety, morals and general welfare. (United BF Homeowners Associations, Inc. vs. The City Mayor, Paranaque City) In Ortigas & Co. vs. Feati Bank and Trust Co., 94 SCRA 533, The Court held that contractual restrictions on the use of property could not prevail over the reasonable exercise of police power through zoning regulations.

Right to Remain Silent and to Counsel

34. What is custodial investigation? What are the rights of a person under custodial investigation?

ANSWER: Custodial investigation is the stage of police investigation 1) when a parson is taken into custody and 2) is singled out as a suspect in the commission of the crime under investigation and 3) the police officers begin to ask questions on a) the suspects participation therein and b) which tend to elicit an admission. (People vs. Pavillare, GR No. 129970, April 5, 2000) The Miranda rights of a person under custodial investigation are the right 1) to be informed of his right to remain silent, 2) to have competent and independent counsel preferably of his own choice and the right to be informed of such rights. If the person cannot afford the services of counsel, he must be provided with one. These rights, except the right to be informed of such rights, cannot be waived except in writing and in the presence of counsel. (People vs. Naag, GR No. 123860, January 20, 2000)

The person under custodial investigation must be informed in a language known to and understood by him of the reason for the arrest and he must be shown the warrant of arrest, if any.People vs. Mahinay, GR No. 122485, February 1, 1999.

Exclusionary Rule
35. Does the exclusionary rule under paragraph 2, Section 12 of the Bill of Right apply to admissions made in an administrative investigation? What about extrajudicial statements made before an employer?

ANSWER: NO. The exclusionary rule under paragraph (2), Section 12 of the Bill of Rights applies only to admissions made in a criminal investigation but not to those made in an administrative investigation. Admissions made by a respondent during an administrative investigation may be used as evidence to justify his dismissal. As such, the hearing conducted by the investigating authority is not part of criminal prosecution. The right to counsel attaches only upon the start of a custodial investigation. The right to counsel under Section 12 of the Bill of Rights is meant to protect a suspect in a criminal case under custodial investigation. (Remolana vs. CSC, 362 SCRA 304)

NO. Admissions made during the course of administrative investigation by an employer (Philippine Airlines) do not come within the purview of Section 12. The protective mantle of the constitutional provision also does not extend to admissions or confessions made to a radio announcer who was not part of the investigation, or even to a mayor approached as a personal confidante and not in his official capacity. The right exist only in custodial investigations, or in-custody custody interrogation of accused persons. And, by custodial interrogation is meant questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. (People vs. Ayson, 175 SCRA 216; People vs. Tin Lan Uy, 475 SCRA 248: Astudillo vs. People, GR No. 159734, Nov. 30, 2006)

Right to Bail

36. What is bail? What are the forms of bail?

ANSWER: Bail is a security given for the release of a person in custody of the law, furnished by him or a bondsman, to guarantee his appearance before any court as required under the conditions hereinafter specified. (Sec. 1, Rule 114, ROC)

Bail may be in the form of corporate surety, property bond, cash deposit or recognizance.

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37. When is bail a matter of right?

ANSWER: All persons in custody shall be admitted to bail as a matter of right, with sufficient sureties, or be released on recognizance as prescribed by law of the Rules of Court 1) before conviction by the Metropolitan Trial Court, Municipal Trial Court, Municipal Trial Court in Cities, or Municipal Circuit Trial Court, and 2) before conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment. (Sec. 4, Rule 114, ROC)

38. When is bail matter of discretion? In what court can the application for bail be filed?

ANSWER: Upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment, the court, on application, admission to bail is discretionary. xxx Should the court grant the application, the accused may be allowed provisional liberty during the pendency of the appeal under the same bail subject to the consent of the bondsman. (Sec. 5, Rule 114) Whenever the grant of bail is a matter of discretion, or the accused seeks to be released on recognizance, the application can only be filed in the court where the case is pending, whether on preliminary investigation, trial, or appeal. (Sec. 17, Rule 114)

39. Explain the concept of discretionary bail pending appeal after conviction for non-capital offense.

ANSWER: The discretion to extend bail during the course of the appeal should be exercised with grave caution and for strong reasons, considering that the accused has been in fact convicted by the trial court. Reason: Bail should be granted only when it is uncertain whether the accused is guilty or innocent, and therefore, where that uncertainty is removed by conviction it would, generally speaking be absurd to admit

bail. From another point of view, it may be properly argued that the probability of ultimate punishment is so enhanced by the conviction that the accused is more likely to escape if liberated on bail than before conviction. (Yap, Jr. vs. CA, GR No. 141529)
40. Is hearing mandatory when the accused is charged with an offense punishable by reclusion perpetua, or life imprisonment?

ANSWER: YES. The judge shall conduct a hearing whether summary or otherwise, not only to take into account the guidelines set forth under the Rules for the grant of bail, but primarily to determine the existence of strong evidence of guilt or lack of it, against the accused, only for purposes of the bail. If evidence of guilt is not strong, bail becomes a matter of right.

Presumption of Innocence
41. Are the signatures of the accused on the boxes and on the plastic bags tantamount to uncounselled extrajudicial confessions and therefore inadmissible in evidence?

ANSWER: YES. They are not sanctioned by the Bill of Rights and are therefore inadmissible as evidence. The fact that all of the accused are foreign nationals does not preclude application of the Exclusionary rule because the constitutional guarantee embodied in the Bill of Rights are given and extends to all persons, both aliens and citizens. (People vs. Wong Chuen Ming, GR No. 112801-11, April 12, 1996) The accused have the constitutional presumption of innocence.

Right to Speedy Trial

42. When is the right to speedy trial deemed violated?

ANSWER: Mere mathematical reckoning of time involved is not sufficient in determining violation of right to speedy trial. It is violated only when the proceedings is attended by vexatious, capricious and oppressive delays or when unjustified postponements of the trial are asked and secured, or when without cause or unjustifiable motive, along period of time is allowed to lapse without the party having his case tried. (Ty-Dazo vs. Sandiganbayan, GR No. 143885-86, January 21, 2002)

Suspension of the Writ of Habeas Corpus

43. When may the privilege of the writ of habeas corpus be suspended? To whom may the suspension be applied?

ANSWER: In case of invasion or rebellion, when the public safety requires it, the President may suspend the privilege of the writ of habeas corpus. (Art. III, Sec. 15, PC) CONSTITUTIONAL LAW /P11

The suspension of the privilege of the writ of habeas corpus shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion. During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially released within three days, otherwise he shall be released. (Art. VII, Sec. 18, 5th and 6th pars. PC)

Right Against Self-Incrimination

44. What is the scope of the right against self-incrimination? What are the mechanical acts that, without the use of intelligence, do not fall within the scope of the protection?

ANSWER: The scope of the right includes 1) prohibition against testimonial evidence and 2) prohibition against act that require use of intelligence, such as providing handwriting for comparison. Some acts which are not covered by the right against self-incrimination are: 1) Fingerprinting, photographing and paraffin testing, physical examination; 2) Physical examination of a woman accused of adultery to determine if she is pregnant; 3) Undergoing ultra-violet rays examination to determine presence of fluorescent powder on the hands; 4) Subpoena directing government officials top produce official documents or public records in their custody; and 5) Fitting the accused foot over a foot print, putting on a pair of trousers, shoes, etc.

45. Can an accused invoke the right against self-incrimination? What about ordinary witnesses?

ANSWER: An accused is exempt from being compelled to be a witness against himself [Sec 1 (e), Rule 115, ROC], so he could validly refuse to take the witness stand. An ordinary witness who is not the accused may be compelled to testify. However, he could claim the privilege against self-incrimination and refuse to answer only as each question requiring an incriminatory answer is propounded to him. (Badiong vs. Gonzales, 94 SCRA 906)

Double Jeopardy

46. What is the concept of double jeopardy?

ANSWER: When an accused 1) has been convicted or acquitted, or 2) the case against him dismissed or otherwise terminated a)without his consent b) by a court of competent jurisdiction, c) upon a valid complaint or other formal charge sufficient in form and substance to sustain a conviction and 3)after the accused had pleaded guilty to the charge, 4) the conviction or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution a) for the offense charged, or b) for any attempt to commit the same or frustration thereof, or c) for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information. 1st par. Sec. 7, Rule 117 ROC)

47. What are the protection afforded by the right against double jeopardy?

ANSWER: 1) Against a second prosecution for the same offense after acquittal 2) Against a second prosecution for the same offense after conviction 3) Against multiple punishments for the same offense

48. What are the requisites for double jeopardy? What are the proofs that the first jeopardy had attached?

ANSWER: Requisites:1) the first jeopardy must have attached prior to the second; 2) the first jeopardy must have been validly terminated; 3) the second jeopardy must be

a) for the same offense; b) the second offense includes or is necessarily included in the offense charged in the first information, or is 3) an attempt to commit the same or is a frustration thereof. (Cudia vs. CA, GR No. 110315, January 16, 1998)

Proofs: 1) court of competent jurisdiction; 2) valid complaint or information 3) arraignment; 4) valid plea; and 5) the defendant was acquitted or convicted or the case was dismissed or otherwise terminated without the express consent of the accused. (Cudia vs. CA, supra.)

49. Is there double jeopardy if acquittal violates due process?

ANSWER: NONE. The only instance when double jeopardy will not attach is when the trial court acted with grave abuse of discretion amounting to lack or excess of jurisdiction due to a violation of due process, ie, that the prosecution was denied the opportunity to CONSTITUTIONAL LAW /P12

present its case, in which case certiorari may be resorted to cure an abusive denial. In that extraordinary proceeding it must be clearly demonstrated that the trial court blatantly abused its authority to a point so grave as to deprive it of its very power to dispense justice. (People vs. Sandiganbayan, GR No. 140633, February, 2002)

50. Is there double jeopardy upon a conviction for violation of Anti-Graft Law and a subsequent charge for falsification of public documents?

ANSWER: NONE. One of the elements of double jeopardy that is missing is that the second jeopardy (falsification of public documents) must be for the same offense as that in the first (Anti-Graft and Corrupt Practices). The crime of falsification of public documents is not necessarily included in Anti-Graft and Corrupt Practices. They have different elements. The guilt or innocence of the accused in the anti-graft case does

not hinge on the validity or falsity of the documents which is the subject of the falsification. Furthermore, it is clear that the Sandiganbayan did not rule on the validity or falsity of the public documents. (Suero vs. People, GR No. 156408, Januray 31, 2005)

51. When it became manifest before the judgment that a mistake has been made in charging the proper offense against A, the first charge was dismissed to pave the way for the filing of the proper offense. Does the filing of the proper offense constitute double jeopardy?

ANSWER: No. The dismissal of the first case will not give rise to double jeopardy inasmuch as the proper offense was not the one charged against A in such case. The filing of the proper offense, therefore, does not constitute double jeopardy. (Gonzales vs. Court of Appeals, 232 SCRA 667)
52. What is the so-called Finality-of-Acquittal Doctrine?

ANSWER: The doctrine is a safeguard against double jeopardy where verdicts of acquittal are to be regarded as absolutely final and irreviewable. In the Absence of a finding of mistrial, i.e., the criminal trial was a sham, a judgment of acquittal is final and unappealable on the ground of double jeopardy whether it happens at the trial court level or at the Court of Appeals. In People vs. CA, GR No. 142051, February 24, 2004, the special civil action of certiorari seeking a review and reversal of decision acquitting an accused on ground of grave abuse of discretion is not proper. If the petition, regardless of its nomenclature, merely calls for an ordinary review of the findings of the court a quo, without demonstrating that the lower court blatantly abused its authority to a point so grave as to deprive it of its very power to dispense justice, the constitutional right against double jeopardy would be violated. Such recourse is tantamount to converting the petition for certiorari into an appeal, contrary to the express injunction of the Constitution, the Rules of Court and prevailing jurisprudence on double jeopardy. (Ibid.) Overbreath Doctrine and Void for Vagueness Doctrine

53. Define/explain briefly the following doctrines: (1) Overbreath Doctrine

(2) Void for Vagueness Doctrine

(1) The Overbreath Doctrine states that a governmental purpose may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms. In David vs. Ermita, the Supreme Court prevented the government, pursuant to Presidential Proclamation 1017 and General Order No. 5, from hunting down terrorists since acts of terrorism had not been defined and made punishable by Congress. (2) The Void for Vagueness Doctrine which renders a law invalid if men of common intelligence must necessarily guess at its meaning and differ as to its application. Thus, a statute may be rendered void if its terms are uncertain or not sufficiently definite rendering it incomprehensible to ordinary people and thereby making the enforcement of the law arbitrary and subject to abuse. Such a vague or ambiguous piece of legislation violates due process of law. It provides a rule to the effect that a statute establishing a criminal offense must define the offense with sufficient definiteness that persons of ordinary intelligence can understand what conduct is condemned.

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54. R challenges the validity of Section 5 of RA 3019, a penal statute on the ground that the act constituting the offense is allegedly vague and impermissibly broad and thus violated due process right of individual to be informed of the nature and cause of accusation against him. Will his suit prosper?

ANSWER: NO. overbreadth and vagueness doctrine have special application only to free speech cases. They are not appropriate for testing the validity of penal statutes. When the allegation in the information is vague or indefinite, the remedy of the accused is not a motion to quash, but a motion for a bill of particulars. (Romualdez vs. Sandiganbayan, 435 SCRA 371)

A statute or regulation is considered void for overbreadth when it offends the constitutional principle that a governmental purpose to control or prevent activities constitutionally subject to State regulation may not be achieved by means that sweep

unnecessarily broadly and thereby invade the area of protected freedoms. (Chavez vs. COMELEC, 437 SCRA 415)

55. What is the effect of an on its face invalidation of criminal statutes? What is the test in determining whether a criminal statute is void?

ANSWER: The test in determining whether a criminal statute is void for uncertainty is whether the language conveys a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice. The vagueness doctrine merely requires a reasonable degree of certainty for the statute to be upheld not absolute precision or mathematical exactitude.

Facial invalidation or an on its face invalidation of criminal statutes is not appropriate because it would result in a mass acquittal of parties whose cases may not have even reached the courts. Such invalidation would constitute a departure from the usual requirement of actual case and controversy and permit decisions to be made in a sterile abstract context having no factual concreteness. The test in determining whether a criminal statute is void for uncertainty is whether the language conveys a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice. The vagueness doctrine merely requires a reasonable degree of certainty for the statute to be upheld not absolute precision or mathematical exactitude. (Romualdez vs. Sandiganbayan, supra.) No ExPost Facto Law

56. What is ex post facto law? What are the characteristics of ex-post facto law?

ANSWER: Ex post facto law which penalizes a person for having committed an act which was not punishable at the time of its commission. Such retroactive application violates a persons right to due process. An ex post facto law is one that 1) Makes an act done before the passage of the law and which was innocent when done, and punishes such an act; 2) Aggravates a crime,

or makes it greater that it was, when committed; 3) Changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed; 4) Alters the legal rules of evidence, authorizes conviction upon less or different testimony than the law required at the time of the commission of the offense; 5) Assuming to regulate civil rights and remedies only, in effect imposes penalty or deprivation of a right for something which when done was lawful; and 6) Deprives a person accused of a crime of some lawful protection to which he has become entitled, such as the protection of a former conviction or acquittal, or a proclamation of amnesty. The prohibition against ex post facto law applies only to penal laws which are given retroactive effect. Penal law is one that prescribes a criminal penalty imposable in a criminal trial. A law is also penal if it prescribes a burden equivalent to a criminal penalty (eg. disqualification from the practice of a profession) even if such burden is imposed in an administrative proceeding (Pascual vs. Board of Medical Examiners, 28 SCRA 344) Academic Freedom
57. Does the Civil Service Commission have the power to terminate employment of a UP professor or other academic personnel?

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ANSWER: NO. The Civil Service Commission has no authority to dictate to UP the outright dismissal of its personnel. On its own, the CSC does not have the power to terminate employment or to drop workers from the rolls. Academic freedom encompasses the autonomy to choose who should teach and, concomitant therewith, who should be retained in its rolls of professors and other academic personnel. The UP by opting to retain a professor and even promoting him despite his absence without leave, exercised its freedom to choose who may teach or, more precisely, who may continue to teach within its faculty. (UP vs. CSC, 356 SCRA 57)
57. Does academic freedom encompass a universitys discretion to determine who shall be conferred academic honors?

ANSWER: YES. Academic freedom accords an institution of higher learning the right to decide for itself its aims and objectives and how best to attain them. Academic freedom extends to the right to confer academic honors. Thus, the exercise of academic freedom grants the University the exclusive discretion to determine to whom among its graduates it shall confer academic recognition based on its established standards. And the courts may not interfere unless there is a clear showing that the University has arbitrarily and capriciously exercised its judgments. (Morales vs. UP Board of Regents, 446 SCRA 227)

58. May a university validly revoke a degree or honor it has conferred to a student after the graduation of the latter after finding that such degree or honor was obtained through fraud?

ANSWER: YES. Academic freedom of institution of higher learning is a freedom granted to institutions of higher learning which is thus given a wide sphere of authority certainly extending to the choice of students. If such institution of higher learning can decide who can and who cannot study in it, it certainly can also determine on whom it can confer the honor and distinction of being its graduates. Where it is shown that the conferment of an honor or distinction was obtained through fraud, a university has the right to revoke or withdraw the honor or distinction it has thus conferred. This freedom of a university does not terminate upon the graduation of a student, for it is precisely the graduation of such a student that it is in question. (UP Board of Regents vs. CA and Celine, GR No. 134625, August 31, 1999)

59. The Board of Regents of the Benguet State University approved a resolution granting rice subsidy and health care allowance to BSUs employees. The grant of this rice subsidy and health care allowance in the amount of P4.35M was disallowed in audit by the Commission on Audit stating that RA 9282, the Higher Education Modernization Act of 1997, does not provide for the grant of said allowance to employees and officials to the university. BSU argued that the authority given to the Governing Board is plenary and absolute invoking the academic freedom clause of the Constitution. Is the contention of BSU legally tenable?

ANSWER: NO. BSU cannot find solace in the academic freedom clause of the Constitution. Academic freedom as adverted to in the Constitution and in RA 9282 only encompasses the freedom of the institution of higher learning to determine for itself, on academic grounds, who may teach, what may be taught, how it shall be taught and who may be admitted to study. The guaranteed academic freedom does not grant the institution of higher learning unbridled authority to disburse its funds and grant additional benefits sans statutory basis that would justify the grant of these additional benefits to its employees. (BSU vs. COA, 524 SCRA 437)

60. Does the assumption by the Civil Service Commission of jurisdiction over a president of a state university violate academic freedom?

ANSWER: NO. A complaint against a state university official may be filed either with the universitys Board of Regents or directly with the Civil Service Commission which has concurrent jurisdiction. Contrary to the matters traditionally held to be justified to be within the bounds of academic freedom, the administrative complaints filed against a state university president involves violations of the civil service rules. The guaranteed academic freedom does not give an institution the unbridled authority to perform acts without any statutory basis. For that reason, a school official, who is a

member of the civil service, may not be permitted to commit violations of civil service rules under the justification that he was free to do so under the principle of academic freedom. (Civil Service Commission vs. Sojor, GR 168766, May 22, 2008) --oo0oo--