Consti - Dec 12

There was a time when the retail trade was

fully nationalized. Since then, it has been
Makes inquiries about martial law. liberalized that’s why you have “foreign
equity” and retail trade. The present day
concept of warehouse membership like SNR
Can congress amend the constitution? What could not have been possible under the fully
are the modes of amending the nationalized trade law but because it has
constitution? sicne been liberalized, for so long as there is
sufficient filipino investment and the foreign
capital is let to be in stock in filipino shores
for a certain amount of time then they can
You cannot amend by initiative because
engage in certain retail trade of a required
there is no enabling law (santiago vs
minimum capitalization.
comelec)

The rest of the industries are supposed to be

Ans: constitutional convention by 2 modes:
open to foreign association.
1. congress by a vote of 2/3 enacts a law
calling for a constitutional convention where
delegates are elected by people at large Another provision of the constitution which
allows economic equality is the exercise of
2. Congress by a majority vote would let the
profession. All professions in the
people decide if W/N a concom should be
philippines are exclusively for filipino
formed. If so, there is a law enacted to call
citizens.
for election where delegates are elected

I’ll task you to read the cases on equal

Other mode:
Constituent assembly
So, can congress amend the constitution?
YES, by a constituent assembly.
protection, more or less they are on
discussions on what the valid classification
would require and as to whether there has
been compliance with the said classification
or not.

--it appears this is just current events REQUIREMENT OF FAIR PROCEDURE

related --

Arrests, Searches and Seizures

The actual topic is here but I typed that one
already so deal with it.

The concept of arrest searches and seizures

is found on the concept of right to privacy
which is inherent in the phrase “right to
liberty”
EQUAL PROTECTION (continued)

If you notice, a reading of article 3, there is

On the provisions of the constitution, take
no specific provision respecting right to
note of those which provide for certain
privacy execept reference to that phrase
nationalized industries where filipino
under sec 3 art 3 - right of privacy of
capital is given preference. The entire idea
communication and correspondence
is to give filipinos privilege of engaging into
these enterprises.
But it doesn’t mean that even if there is no
specific provision stating that no law shall
be passed abridging right to privacy, it is
inherent in the right of liberty - the right to
be free- the right to be let and left
alone.
The state thus does not have any right to
intrude into our privacy unless it is
reasonable.
There are references to other provisions
of the constitution:
1. sec 1 of due process clause referring to
right to life, liberty and property
2. Sec 2, Right against unreasonable
searches and arrests
3. Sec 3, right to privacy of communication
and correspondence
4. Sec 6, liberty of abode and travel - right
to live wherever you want subject to
conditions in the constitution; right to travel
within and outside the country; right to
return to one’s country
5. Sec 8, right/ freedom to associate - if
purpose is not unlawful
a) In fact, if your religion prohibits
you from a certain act, you can be
exempted from the performance
of a contractual obligation because
freedom of thought and
conscience, which includes religion
is preferred over contractual
obligations
6. Sec 17, privilege against self
incrimination - person suspected cannot be
asked incriminating questions. The state
has obligation to prove guilt by evidence
and not by reason of admission or forced
confession
7. Criminal statutes that refer to privacy:
a) Violation of trade secret laws
8. civil code, art 26, if there’s a violation, a
person has a right to claim damages
What the constitution prescribes under sec
2 is UNREASONABLE SEARCHES AND
ARRESTS.
If the search, seizure or arrest is reasonable,
that is not prohibited.
SEARCH AND SEIZURE
When is this considered unreasonable?
2 situations contemplated:
1. there is no search warrant validly issued
and search does not fall under any of the
allowable exceptions
2. Even if there is a warrant issued:
a) Either unlawfully issued
b) Lawfully issued but unlawfully
implemented
It does not mean that although the search is
without warrant, it is automatically
unreasonable. Conversely, even if the
search is warranted, it doesn’t mean that
the search is reasonable.
In WARRANTED cases, the following are
the requirements:
1. Applied for by competent authority
a) A warrant is supposed to be
applied for by the state authority.
It’s for the police to secure
evidence which will be used to file
a case against a person from
whom it was taken. That will make
a criminal case filed thereafter.
Without the evidence seized under
a warrant, there is no case to be
filed.
b) When a search warrant application
is made, there is no criminal case
yet.
c) Your cases will tell you that there
is an applciation made - yes, it is
similar to a criminal case but it is
not a criminal case per se - it is
entitled “in re: application for
search warrant against Juan Dela
crus” because there is no case yat
 and the court is still going to
secure evidence.
d) When an applciation is made, it is
usually in utmost secrecy - it is
directly filed with the court and the
court is suppsoed to receive a
written sworn applcation
e) So application, verified and in
writing.
2. the court must determine (under ROC
rule 126), existence of probable cause
a) Case of lagman vs executive
secretary (on the martial law
cases). rember there that amrtial
must have to be declared based on
the existence of rebellion or
invasion according to the law.
b) The question there in lagman was
was there rebellion? - what is that
rebellion? Is it the same as art 134
in RPC? Lagman said YES.
c) Next question, how should the
president determine the existence
of rebellion: probable cause.
d) Probable cause - such amount of
facts which would make the court
believe that a crime has been
committed and that the fruits the
evidence, effects of a crime are in
the place intended to be searched
and therefore seized.
e) How will court determine such
circumstances? The court is
required to conduct examination
on the applicant or witnesses.
f) even if it the application is made in
utmost secrecy, there must still be
recording - a reading of the record
must show that the applicant and
witnesses must have personal
knowledge of facts that the crime
was committed and the fruits,
effects and evidence of the crime
are in the place intended to be
searched.
g) Determination is not based on
accuracy but on sufficiency - more
than suspicion but less than
reasonable doubt.
h) The knowledge of the applicant
and the witnesses - based on the
cases is what is referred to as
personal knowledge.
Something which you can be held
accountable for if it turns out to be
false.
i) If its is not personal knowledge,
it’s just hearsay evidence.
j) Warrant must also be issued in
relation to one specific offense
i. The warrant, by reading it,
could be determined that
there is a violation of specific
provision of a law (not
necessarily numbered or
identified by legal
nomenclature)
ii. A warrant cannot be issued
for more that one specific
offense
iii. SCATTER SHOT warrant -
warrant issued for more than
1 specific offense (not valid)
There is no hard and fast rule as to how
extensive the questioning of the judge
must be. Only that the judge must
elicit searching questions.
This means the questions are asked to
elicit facts not admissions.
3. the place intended to be search must
have to be sufficiently described in the
warrant
a) The entire idea is that it’s nto the
knowledge of the applicant which
would prevail as to which premises
is to be searched. Rather, the
warrant, just by reading it, any
 police officer can ascertain the
place intended to be searched.

b) The reason for that is, any search

warrant is addressed to any police
officer. Thus, any police officer can
execute it.

c) Only in the philippines : a warrant

must require a sketch.
Jurisprudence will tell you that if
the address involves a vague
enclosure, there must have to be a
specification as to which structure
is to be searched in the search
warrant.

4. The item sought to be seized must be

described with particularity

a) Description of the thing to be

seized depends on the character of
the evidence. When you say
firearm, you don’t have to
characterize it by serial number. If
illegal drugs, you do not specify
the quantity.

b) Unless it involves items which are

commercially available - example,
computer. Possession of a
computer is not illegal per se. So if
you describe in the warrant, CPU
and monitor, you cannot seize
them. You must describe “illegal
use” because possession of it is
not illegal per se but it it is used
illegally, then that makes it
unlawful and can be seized.