A Library Of Liberties: Constitutional Law Notes For Bar Exam Success

NOTES, UPDATES AND TEASERS
CONSTITUTIONAL LAW * (Bar Review 2010)

University of Santo Tomas
RENE B. GOROSPE
Constitutional Law, in the context of these notes, it refers only to the Bill of Rights. Accordingly, on some other aspects of constitutional law as a broad term and expansive subject, resort must be had to some other sources and materials. These notes are to be taken as a quick reference to general ideas and recent decisions which light up and enliven the study of the subject. They presuppose that one has at least done his or her homework through the years and these are just reminders of what were, ticklers of recent application of rules and principles, and an invitation to an exploration of what may lie beyond. The study of law is best had if enjoyed. These notes are intended to be both informative and entertaining. Reviewees are also entitled to fun even while preparing to take on the Bar exams. As had been writ: A judicial decision does not have to be a bore.1 Neither must a Bar review material be. It need not be a bland presentation of what has been. It might as well pick brains and prick some civic conscience in preparation for eventual practice and life as a responsible particle of sovereignty. So, heres to humoring the Bar exams.2 Theres nothing as unnerving as approaching a problem from
Caveat: While most of the materials here are taken from cases, caution should be exercised in looking at the notes as some are personal views designed to make the principle or rule discussed more interesting through side comments, musings and other asides. Utmost discernment, discipline and discretion are thus advised to avoid any misunderstandings. Attempt had been made to carefully proofread everything but it almost always happens that despite best efforts errors will still crop up. Well, as Justice Kennedy observed in his dissenting opinion in Groh v. Ramirez, 540 U.S. 551 (2004), at 568: We all tend toward myopia when looking for our own errors. Every lawyer and every judge can recite examples of documents that they wrote, checked, and doublechecked, but that still contained glaring errors. Murphys Law, anyone?
1 2 *
Francisco v. Permskul, 173 SCRA 324 (1989)
The justices themselves are not beyond humoring the study of law and all its quirks and esoteric twists and turns, as could be seen by their occasional references to matters more mundane as a manner of making the legal aspects easier to grasp and appreciate. In Camid v. Office of the President, 448 SCRA 711 (2005), the Court spoke of what might have been memories about a movie from years, and years, and years ago. The Court introduced the case in this wise: This Petition for Certiorari presents this Court with the prospect of our own Brigadoon the municipality of Andong, Lanao del Sur which like its counterpart in filmdom, is a town that is not supposed to exist yet is anyway insisted by some as actually alive and thriving. Yet unlike in the movies, there is nothing mystical, ghostly or anything even remotely charming about the purported existence of Andong. So where, when and whatever is Brigadoon? The Court explained that it is a 1954 film based on the well-known eponymous Broadway musical by Alan Jay Lerner and Frederick Loewe. The plot pertains to a magical Scottish town touted to appear once every hundred years on some otherworldly plain according to legend.
University of Santo Tomas Faculty of Civil Law Bar Review 2010
Parenthetically, and by way of an excursive exercise in the tiring and tedious travails of reviewing, it might also be helpful and reassuring to note that writing in the Court does not stop Justices from humming a tune or simply warbling a song into their decisions, as what the Court did in Pamatong v. Commission on Elections, 427 SCRA 96 (2004), where we find this line: Owing to the superior interest in ensuring a credible and orderly election, the State could exclude nuisance candidates and need not indulge in, as the song goes, their trips to the moon on gossamer wings. The line, from the song, Just One of Those Things, must have been swaying in Justice Tingas mind or the melody wafting in the air as he wrote the ponencia in that case.
And, you might as well take note of Palaganas v. People, 501 SCRA 533 (2006), where the Court opened up humming with lines from My Way to say that it was not the first time that the songvis--vis An Arsenal Of Arms coming to blows! (The A Library Of Liberties had triggered violent behavior resulting in people Court went on to give appropriate credits that the music is by Paul Anka and that the song was popularized by Frank Sinatra. Now, even decisions could be sources of musical trivia.) As for the apostles of Bacchus, one might as well pay heed to what the Court said in People v. Glino, 539 SCRA 432 (2007): BEWARE of drunk passengers. They pose danger to life and limb. Merely talking to them or telling
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a perspective of trepidation. March on with confidence, head up high, a smile on your face and faith in yourself. The Bar exercise is just a good opportunity to prove and improve yourself. It is not an adversary but an ally, and even if it were, it is one that you can persuade and convince to become a lifelong friend.
THE FUNDAMENTAL POWERS AND THE BILL OF RIGHTS

Governance is the art and science of carefully balancing the competing needs, concerns, wants, desiderata and values of society, all demanding acceptance and preeminence. Insofar as the government and the people are concerned, their interests may every now and then clash or compete for preeminence, for which a careful weighing of various considerations has to be done to ensure that the demands of authority do not lead to slavery and the claims of liberty do not end up in anarchy.3 Or, in the words of a more recent case, [o]nce again, the Court is faced with an age-old but persistently modern problem. How does the Constitution of a free people combine the degree of liberty, without which, law becomes tyranny, with the degree of law, without which, liberty becomes license?4 Months later, the Court once
them to sit properly can be fatal, . . . The U.S. Supreme Court is also not beyond recognizing the message of songs, particularly Imagine by John Lennon. The Court reproduced the entire lyrics in Pleasant Grove City v. Summum, 555 U.S. ___ (2009), noting: Others may think of the lyrics of the Lennon song that obviously inspired the mosaic and may imagine a world without religion, countries, possessions, greed, or hunger. Or, they could as well be into literature words melodious without the tunes as when the Court, in pointing out the importance of affording protection to ones employment, noted: As Shylock declared, you take my life, when you do take the means whereby I live. (Shakespeare, The Merchant of Venice) (n. 26, Anonymous v. Radam, 541 SCRA 12 [2007]) In Orocio v. Roxas, 562 SCRA 347 (2008), the Court opened with lines from Sharepeares Hamlet, Act III, SceneI, Lines 56-72 To be, or not to be: that is the question. . . . (Well, what are you: to be, or not to be, a lawyer?) Being in the Court does not also have to lead to loss of memory about stories told and learned during ones salad days. Who can forget, for instance, memories of the transformation of the ugly duckling? This Motion for Partial Judgment and to Dismiss Petition is truly an odd duckling of a pleading, which unfortunately did not blossom into a swan but from it instead emerged an even uglier duck the 6 September 2002 Order, . . . (Republic v. Nolasco, 457 SCRA 400 [2005]) In the same way, taking the Bar examinations need not make you a different person from what you really are. You can study and prepare for and pass the Bar while enjoying the experience and the opportunity which you may only have to go through but once in your life. Savor the moment as you may never pass this way again. But if you were more concerned with food something never far away when reviewing for the Bar exams note the exchange between Chief Justice Roberts and Justice Scalia in Washington State Grange v. Washington State Republican Party, 552 U.S. ___(No. 06-713, 18 March 2008), a case involving a law that allegedly infringed the associational rights of political parties. The former, in support of his concurring opinion said: Assuming the ballot is so designed, voters would not regard the listed candidates as party candidates, any more than someone saying I like Campbells soup would be understood to be associated with Campbells. In response, the latter in his dissent wrote: [T]here is simply no comparison between statements of preference for an expressive association and statements of preference for soup. The robust First Amendment freedom to associate belongs only to groups engage[d] in expressive association, Dale, 530 U.S., at 648. The Campbell Soup Company does not exist to promote a message, and there is only minimal constitutional protection of the freedom of commercial association, . . . Furthermore, he said: If we must speak in terms of soup, Washingtons law is like a law that encourages Oscar the Grouch (Sesame Streets famed bad-taste resident of a garbage can) to state a preference for Campbells at every point of sale, while barring the soup company from disavowing his endorsement, or indeed using its name at all, in those same crucial locations. Reserving the most critical communications forum for statements of preference by a potentially distasteful speaker alters public perceptions of the entity that is preferred; and when this privileged connection undermines not a companys ability to identify and promote soup but an expressive associations ability to identify and promote its message and its standard bearer, the State treads on the constitutionally protected freedom of association. Ahh, food, politics and garbage characters.
Or, if you are fond of the art of cooking and preparing the meat for that purpose to be better expressed in a menu of legal issues, how about this line from Chief Justice Punos dissent in Neri v. Senate Committee on Accountability of Public Officers and Investigations, 549 SCRA 77 (2008)? A holistic view of the doctrine of executive privilege will serve as a hermeneutic scalpel to excise the fat of information that does not fall within the ambit of the privilege and to preserve only the confidentiality of the lean meat of information it protects in the particular setting of the case at bar.
3 4
See Calalang v. Williams, 70 Phil. 726 (1940)
A Library Of Liberties vis--vis An Arsenal Of Arms
David v. Macapagal-Arroyo, 489 SCRA 160 (2006), referencing the writings of the Greek philosopher, Heraclitus of Ephesus, 540-480 B.C., who propounded universal impermanence and that all things, notably opposites are interrelated.
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more declared: The true role of Constitutional Law is to effect an equilibrium between authority and liberty so that rights are exercised within the framework of the law and the laws are enacted with due deference to rights.5 On the side of authority, you have the inherent and fundamental powers of the government police power, eminent domain, and taxation powers by which its goals may be enforced and implemented. On the other end, you have the guarantees and safeguards found in the Bill of Rights. And, in this regard the Court has held that [i]n the complex but exquisite scheme laid down by the Constitution, the Bill of Rights occupies a position of primacy, way above the articles on governmental power.6 And in this interplay between power and authority, on one hand, and liberty and freedom, on the other, note must be taken of the fact that just like anything else, values, concepts and weights change through time. What may have been recognized as outside the domain of State regulation in the past would no longer be so immune from governmental interference in later years.7 As was said in one case, What was robbery in 1874 is now called social justice.8
A.
THE FUNDAMENTAL POWERS
These fundamental powers are inherent in the national government, exercised by the legislature, and are only bestowed upon others, like the local government units, as a result of delegation. In the exercise of police power, there must be compliance with the requirements of legitimate ends being accomplished through legitimate means.9 As for the power of condemnation, the Constitution already provides the allowable standards for its exercise public use and just compensation.10 Taxation, of course, must not be exercised in an unreasonable, oppressive and confiscatory manner.11 Or, in the language of Philippine Health Care Providers, Inc. v. Commissioner of Internal Revenue, 600 SCRA 413 (2009), [l]egitimate enterprises enjoy the constitutional protection not to be taxed out of existence. Also, it must not be forgotten that the exercise of the power of taxation constitutes a deprivation of property under the due process clause, and the taxpayers right to due process is violated when arbitrary or oppressive methods are used in assessing and collecting taxes.12 1. Mirasol v. Department of Public Works and Highways, 490 SCRA 318 (2006) Streets, roads and highways provide means by which a person can move about and reach places. But not because they are there does it mean that just anyone in any kind of vehicle can use them. Thus, the University of Santo Tomas Limited Access Highway Act (R.A. No. 2000) and Administrative Order No. 1 (AO 1) under which
Faculty of Civil Law Bar Review 2010
5 6
Metropolitan Manila Development Authority v. Viron Transportation Co., Inc., 530 SCRA 341 (2007)
People v. Rapeza, 520 SCRA 596 (2007), penned by Justice Tinga. This is a reiteration of his earlier ponencia in People v. Tudtud, 412 SCRA 142 (2003), where it was held: The Bill of Rights is the bedrock of constitutional government. If people are stripped naked of their rights as human beings, democracy cannot survive and government becomes meaningless. This explains why the Bill of Rights, contained as it is in Article III of the Constitution, occupies a position of primacy in the fundamental law way above the articles on governmental power.
7 8 9
See People v. Pomar, 46 Phil. 440 (1924) Bengzon v. Drilon, 208 SCRA 133 (1992) Ynot v. IAC, 148 SCRA 659 (1987) Article III, 9
10 11 12
See Reyes v. Almanzor, 196 SCRA 322 (1991) Yamane v. BA Lepanto Condominium Corporation, 474 SCRA 258 (2005)
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certain contraptions for traveling may not be allowed to use the express ways. In this case, those using motorcycles complain about their exclusion from tollways. The Court declared: The use of public highways by motor vehicles is subject to regulation as an exercise of the police power of the state. The police power is far-reaching in scope and is the most essential, insistent and illimitable of all government powers. The tendency is to extend rather than to restrict the use of police power. The sole standard in measuring its exercise is reasonableness. What is reasonable is not subject to exact definition or scientific formulation. No all-embracing test of reasonableness exists, for its determination rests upon human judgment applied to the facts and circumstances of each particular case. The rules involved here are not unreasonable restrictions. They are precautionary measures to which toll way users must adhere, rules designed to ensure public safety and the uninhibited flow of traffic within limited access facilities. The prohibition of certain types of vehicles is but one of these. The purpose of these rules and the logic behind them are quite evident. The special purpose for which a toll way is constructed necessitates the imposition of guidelines in the manner of its use and operation. On the issue of best solutions as a guide in determining validity of the exercise of police power, the Court said: Arguably, prohibiting the use of motorcycles in toll ways may not be the best measure to ensure the safety and comfort of those who ply the toll ways. However, the means by which the government chooses to act is not judged in terms of what is best, rather, on simply whether the act is reasonable. The validity of a police power measure does not depend upon the absolute assurance that the purpose desired can in fact be probably fully accomplished, or upon the certainty that it will best serve the purpose intended. Reason, not scientific exactitude, is the measure of the validity of the governmental regulation. Arguments based on what is best are arguments reserved for the Legislatures discussion. Judicial intervention in such matters will only be warranted if the assailed regulation is patently whimsical. Further, the Court said: Police power does not rely upon the existence of definitive studies to support its use. Indeed, no requirement exists that the exercise of police power must first be conclusively justified by research. . . . Scientific certainty and conclusiveness, though desirable, may not be demanded in every situation. Otherwise, no government will be able to act in situations demanding the exercise of its residual powers because it will be tied up conducting studies. In not allowing bikers to use the tollways, is not the restriction oppressive? No, the Court said. There is nothing oppressive in being required to take a bus or drive a car instead of ones scooter, bicycle, calesa, or motorcycle upon using a toll way. You can use the highways but you should neither be a nuisance nor a road hog. Others also need to pass. 2. Social Justice Society v. Atienza, Jr., 517 SCRA 657 (2007)
University of Santo can only comply and implement it. Here If an ordinance says something to be done, then the mayorTomas the City Council of Manila passed Faculty of Civil Lawarea where the oil depot of the big an ordinance reclassifying an petroleum companies was located from industrial to commercial. That meant that the oil terminals had Bar Review 2010 to go. A timetable was provided but after some time the oil depot was still there. Accordingly, the petition to compel the mayor to abide by the ordinance. Can it prosper? The Court gave a resounding yes. Its well within the police power of the city. The objective of the ordinance is to protect the residents from the catastrophic devastation that will surely occur in case of a terrorist attack on the Pandacan Terminals No reason exists why such a protective measure should be delayed.
On motion for reconsideration, stood pat on its earlier position. The ordinance was intended to safeguard the rightsA Library Of and safety of all the inhabitants of Manila Arms just of a particular to life, security Liberties vis--vis An Arsenal Of and not class. The depot is perceived, rightly or wrongly, as a representation of western interests which means that it is a terrorist target. As long as there is such a target in their midst, the residents of Manila are not
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safe. It therefore became necessary to remove these terminals to dissipate the threat. With regard to zoning ordinances, the Court expounded: A zoning ordinance is defined as a local city or municipal legislation which logically arranges, prescribes, defines and apportions a given political subdivision into specific land uses as present and future projection of needs. As a result of the zoning, the continued operation of the businesses of the oil companies in their present location will no longer be permitted. The power to establish zones for industrial, commercial and residential uses is derived from the police power itself and is exercised for the protection and benefit of the residents of a locality. In coming up with a new zoning ordinance, would that not result in some taking for which there should be compensation? In the exercise of police power, there is a limitation on or restriction of property interests to promote public welfare which involves no compensable taking. Thus, [t]he restriction imposed to protect lives, public health and safety from danger is not a taking. It is merely the prohibition or abatement of a noxious use which interferes with paramount rights of the public. Nobody else acquires the use or interest therein, hence there is no compensable taking. 3. Pharmaceutical and Health Care Association of the Philippines v. Duque III, 535 SCRA 265 (2007) Of breastfeeding, breastmilk substitutes and advertisements. To what extent may the Department of Health, in promoting the health and nutritious needs of children, regulate the businesses which promote breastmilk substitutes as acceptable alternative to mothers milk? Health is a legitimate subject matter for regulation by the DOH (and certain other administrative agencies) in exercise of police powers delegated to it. The sheer span of jurisprudence on that matter precludes the need to further discuss it. However, health information, particularly advertising materials on apparently non-toxic products like breastmilk substitutes and supplements, is a relatively new area for regulation by the DOH. Accordingly, the DOH's power under the Milk Code to control information regarding breastmilk vis-a-vis breastmilk substitutes is not absolute as the power to control does not encompass the power to absolutely prohibit the advertising, marketing, and promotion of breastmilk substitutes. Implementing rules and regulations imposing labeling requirements and limitations such as that there be a statement that there is no substitute to breastmilk, and that there be a statement that powdered infant formula may contain pathogenic microorganisms and must be prepared and used appropriately, as well as a prohibition against health and nutrition claims of increased emotional and intellectual abilities of the infant and young child are consistent with the Milk Code. These provisions of the Milk Code expressly forbid information that would imply or create a belief that there is any milk product equivalent to breastmilk or which is humanized or maternalized, as such University of Santo Tomas information would be inconsistent with the superiority of breastfeeding. Correct information as to infant Faculty of and welfare. feeding and nutrition is infused with public interest Civil Law Nonetheless, in this case while the Court held the authority of DOH to control information regarding Bar Review 2010 breastmilk vis-a-vis breastmilk substitutes and supplements and related products cannot be questioned, it declared that the DOH, in imposing an absolute prohibition on advertising, promotion, and marketing, the same went beyond its authority since the same was not within the provisions of the Milk Code itself. 4. Metropolitan Manila Development Authority v. Viron Transportation Co., Inc., 530 SCRA 341 (2007) Some change but still remain the same oxymorons, anyone? A Library Of Liberties vis--vis An Arsenal Of Arms Here the Court noted that the deteriorating traffic conditions way back in 1969 have remained
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unchecked and have reverberated to this day. Traffic jams continue to clog the streets of Metro Manila, bringing vehicles to a standstill at main road arteries during rush hour traffic and sapping peoples energies and patience in the process. Accordingly, the ever-pressing need to address the problem. This took the form of E.O. 179, Providing for the Establishment of Greater MANILA MASS TRANSPORT SYSTEM, designating MMDA as implementing agency, with mandate to eliminate bus terminals along major thoroughfares of Metro Manila, particularly EDSA, and a provision for mass transport terminal facilities. Is E.O. 179 valid? Unfortunately, no. The authority of the President to order the implementation of the Project notwithstanding, the designation of the MMDA as the implementing agency for the Project may not be sustained. It is ultra vires, there being no legal basis therefor. It is the DOTC, and not the MMDA, which is authorized to establish and implement such a project. It is simply that the MMDA is not vested with police power. What about if the DOTC instead of the MMDA which was designated as the implementing arm? Still, the Court said that it failed to see how the prohibition against the existence of terminals can be considered a reasonable necessity to ease traffic congestion in the metropolis. On the contrary, the elimination of the bus terminals brings forth the distinct possibility and the equally harrowing reality of traffic congestion in the common parking areas, a case of transference from one site to another. What then? Less intrusive measures such as curbing the proliferation of colorum buses, vans and taxis entering Metro Manila and using the streets for parking and passenger pick-up points, as respondents suggest, might even be more effective in easing the traffic situation. So would the strict enforcement of traffic rules and the removal of obstructions from major thoroughfares. In short, the elimination of the terminals does not satisfy the standards of a valid police power measure. 5. Carlos Superdrug Corp. v. Department of Social Welfare and Development (DSWD), 526 SCRA 130 (2007) Speaking of retirees, can the State, in promoting the health and welfare of a special group of citizens, impose upon private establishments the burden of partly subsidizing a government program? Yes, the Court declared, upholding in the process the constitutionality of 4(a) of the Expanded Senior Citizens Act of 2003 (R.A. No. 9257, amending R.A. 7432), which considered the twenty percent (20%) discount given by drugstores to senior citizens as tax deductions and no longer as tax credits. The Court acknowledged that treating the discount as tax deduction does not offer full reimbursement of the senior citizen discount, thus, not meeting the definition of just compensation.13 Nevertheless, it could be justified as a police power measure. The Senior Citizens Act was enacted primarily to maximize the contribution of senior citizens to nation-building, and to grant benefits and University of Santo Tomas privileges to them for their improvement and well-being as the State considers them an integral part of our society. The law is a legitimateFaculty of Civil Law similar to the power of eminent exercise of police power which, domain, has general welfare for its object. Accordingly, [w]hen the conditions so demand as determined by the legislature, property Bar Review 2010 rights must bow to the primacy of police power because property rights, though sheltered by due process, must yield to general welfare. But should not the exercise of police power be within bounds, i.e., neither unreasonable or confiscatory? Yes, but it must be duly proved. Police power as an attribute to promote the common good would be diluted considerably if on the mere plea of petitioners that they will suffer loss of earnings and capital, the questioned provision is invalidated. Moreover, in the absence of evidence
Just compensation is defined as the full and fair equivalent of the property taken from its owner by the expropriator. The measure is not the takers gain but the owners loss. The word just is used to intensify the meaning of the word compensation, and to convey the idea that the equivalent to be rendered for the property to be taken shall be real, substantial, full and ample. (Carlos Superdrug Corp.)
13
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demonstrating the alleged confiscatory effect of the provision in question, there is no basis for its nullification in view of the presumption of validity which every law has in its favor. Further, the Court noted that it is unfair for the drug stores to criticize the law because they cannot raise the prices of their medicines given the cutthroat nature of the players in the industry. It is a business decision on the part of petitioners to peg the mark-up at 5%. Inasmuch as pricing is a property right, they cannot reproach the law for being oppressive, simply because they cannot afford to raise their prices for fear of losing their customers to competition. In fine, [w]hile the Constitution protects property rights, petitioners must accept the realities of business and the State, in the exercise of police power, can intervene in the operations of a business which may result in an impairment of property rights in the process. Moreover, the right to property has a social dimension. . . . [T]he right to property can be relinquished upon the command of the State for the promotion of public good. 6. City Government of Quezon City v. Bayan Telecommunications, Inc., 484 SCRA 169 (2006) The issue here is the liability of Bayantel to pay real estate taxes imposed on its properties used in the pursuit of its business. Under its revised franchise, Congress exempted Bayantels properties actually, directly and exclusively used in its business as a telecommunications company from local property taxation. The Court said that, in spite of what may have been said about the constitutional grant of the taxing power to local government units, the basic doctrine on local taxation remains essentially the same . . . . [T]he power to tax is [still] primarily vested in the Congress. In other words, [w]hile the system of local government taxation has changed with the onset of the 1987 Constitution, the power of local government units to tax is still limited. The Court put the issue in this perspective: In net effect, the controversy presently before the Court involves, at bottom, a clash between the inherent taxing power of the legislature, which necessarily includes the power to exempt, and the local governments delegated power to tax under the aegis of the 1987 Constitution. Moreover, the Court has upheld the power of Congress to grant exemptions over the power of local government units to impose taxes. As the Court wrote in Philippine Long Distance Telephone Company, Inc. (PLDT) v. City of Davao, 363 SCRA 522 (2001): Indeed, the grant of taxing powers to local government units under the Constitution and the LGC does not affect the power of Congress to grant exemptions to certain persons, pursuant to a declared national policy. The legal effect of the constitutional grant to local governments simply means that in interpreting statutory provisions on municipal taxing powers, doubts must be resolved in favor of municipal corporations. 7. Pilipinas Shell Petroleum Corporation v. Commissioner of Internal Revenue, 541 SCRA 316 (2007)
University of Santo Tomas Can a taxpayer, who obtained in good faith and for value Tax Credit Certificates (TCCs), and after Faculty be Civil Law having paid its tax liabilities by means of TCCs,of subsequently made to pay the same amounts again if it turns out that the said TCCs had been fraudulently issued and transferred? The Court said no. Bar Review 2010
TCCs are immediately valid and effective after their issuance. Accordingly, a tax payment through a TCC cannot be both effective when made and dependent on a future event for its effectivity. Our system of laws and procedures abhors ambiguity. In short, [t]he transferee in good faith and for value may not be unjustly prejudiced by the fraud committed by the claimant or transferor in the procurement or issuance of the TCC. . . . It is not only unjust but well-nigh violative of the constitutional right not to be deprived of ones property without due process of law. Thus, a re-assessment of tax liabilities previously Library Of Liberties vis--vis An in good faith Arms value is utterly A paid through TCCs by a transferee Arsenal Of and for confiscatory, more so when surcharges and interests are likewise assessed.
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Then, harking back to the traditional attribution of destructive power to the taxing prerogative, the Court said: The power of taxation is sometimes called also the power to destroy. Therefore it should be exercised with caution to minimize injury to the proprietary rights of a taxpayer. It must be exercised fairly, equally and uniformly, lest the tax collector kill the hen that lays the golden egg. 8. Planters Products, Inc. v. Fertiphil Corporation, 548 SCRA 485 (2008) LOI No. 1465, issued by then President Marcos, imposed a Capital Recovery Component (CRC) of P10.00 on each bag of fertilizer sold by fertilizer importers and mother companies in the Philippines, = which amount was to be paid to Planters Products, Inc. until it shall have become viable. Fertiphil was one of those who had to pay the CRC, but after the EDSA Revolution in 1986 it stopped paying the same. Instead it filed suit to recover what it had paid. Can it recover? Or, was the imposition justified by either the power ot taxation or police power. The Court said, neither police power nor taxation could be validly invoked to justify LOI 1465. The refund must have to be made. The P10 levy under LOI No. 1465 is too excessive to serve a mere regulatory purpose. The levy, no doubt, was a big burden on the seller or the ultimate consumer. Also, [a] plain reading of the LOI also supports the conclusion that the levy was for revenue generation. In this regard, [a]n inherent limitation on the power of taxation is public purpose. Taxes are exacted only for a public purpose. They cannot be used for purely private purposes or for the exclusive benefit of private persons. The reason for this is simple. The power to tax exists for the general welfare; hence, implicit in its power is the limitation that it should be used only for a public purpose. It would be a robbery for the State to tax its citizens and use the funds generated for a private purpose. Further, the Court added: When a tax law is only a mask to exact funds from the public when its true intent is to give undue benefit and advantage to a private enterprise, that law will not satisfy the requirement of public purpose. Then, for a final dig at the measure itself, the Court declared: We find it utterly repulsive that a tax law would expressly name a private company as the ultimate beneficiary of the taxes to be levied from the public. This is a clear case of crony capitalism. LOI 1465 could not also be justified as a police power measure because it did not promote public interest but simply that of one ailing private corporation. 9. St. Lukes Medical Center Employees Association-AFW (SLMCEA-AFW) v. National Labor Relations Commission, 517 SCRA 677 (2007) Here, the right to security of tenure earlier earned came into conflict with a law subsequently passed requiring a qualification that was not present when the employee started working. Santos, an Associate in Radiologic Technology graduate, got employed at St. Lukes Hospital in 1984 as an X-Ray Technician. Then came R.A. 7431 (Radiologic Technology of 1992) which requires that no person shall University x-ray technologist without practice or offer to practice as a radiology and/orof Santo Tomas having obtained the proper Faculty of Civil Law certificate of registration from the Board of Radiologic Technology. St. Lukes notified all radiologic practitioners to comply with RA 7431. Santos failed to comply and eventually lost her job. The Court held: While the right of workers to security of tenure is guaranteed by the Constitution, its exercise may be reasonably regulated pursuant to the police power of the State to safeguard health, morals, peace, education, order, safety, and the general welfare of the people. Consequently, persons who desire to engage in the learned professions requiring scientific or technical knowledge may be required to take an examination as a prerequisite to engaging in their chosen careers. The rationale for the regulation of medicine applies as well in the field of radiologic and x-ray technology.14
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Cf. Garcia, Jr. v. Salvador, 518 SCRA 568 (2007). In this case, an employee who was seeking regularization had to undergo a medical examination. She was misdiagnosed as suffering from Hepatitis B. W hen she informed her father, the latter suffered a heart attack. The employee also got separated from her employment. Subsequent tests disclosed the error. The
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B. BILL OF RIGHTS
Taking up the cudgels for liberty are the guarantees contained basically in the Bill of Rights. As the Court observed in People v. Legaspi, 331 SCRA 95 (2000), the Bill of Rights is the mechanism for the delicate balance between governmental power and individual liberty, without which man is stripped of his humanity and society becomes a putrid dump of lost lives. The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. Ones right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.15 The bundle of freedoms and liberties guaranteed by the Bill of Rights is essentially directed against the State and its agencies and instrumentalities only. It could not be invoked against private persons.16 Nevertheless, even as it is true that [t]he Constitution cannot control such [private] prejudices, but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.17 And, even as there might be no constitution following a revolution, if the new dispensation does not repudiate the countrys adherence to the international instruments in which it is signatory, the guarantees found in the Bill of Rights might still be available, like the exclusionary rule.18 1. Yrasuegui v. Philippine Airlines, Inc., 569 SCRA 467 (2008) Here, a flight steward was separated from the service for having failed to abide by the weight limit, which the Court found to be well within the valid prerogatives of the airline relative to the necessities of the business. One of the arguments of the employee was predicated on the equal protection clause, claiming that others similarly situated were not dismissed but given some other positions. The Court said: [I]n the absence of governmental interference, the liberties guaranteed by the Constitution cannot be invoked. Put differently, the Bill of Rights is not meant to be invoked against acts of private individuals. Indeed, the United States Supreme Court, in interpreting the Fourteenth Amendment, which is the source of our equal protection guarantee, is consistent in saying that the equal protection erects no shield against private conduct, however discriminatory or wrongful. Private actions, no matter how egregious, cannot violate the equal protection guarantee. 2. Atienza, Jr. v. Commission on Elections, SCRA (G.R. No. 188920, 16 February 2010)
University of Santo Tomas Can members of a political party claim denial of Civil Law their expulsion from the party? No, Faculty of due process in
the Court said. The requirements of administrative due process do not apply to the internal affairs of Bar Review 2010 political parties. The due process standards set in Ang Tibay cover only administrative bodies created
employee was then rehired. Nonetheless, she and her father sued the medical technologist for gross negligence. The Court found for them, awarding them = 50,000 as moral damages, P 50,000 as exemplary damages, and P 25,000 as attorneys fees. P = = Lesson to be learned? Understand properly the question for a misappreciation or misdiagnosis of the problem is a sure avenue to a wrong answer. Right answers start with correct premises.
15 16 17 18
A Library Of Liberties vis--vis An Arsenal Of See People v. Marti, 193 SCRA 57 (1991) and Serrano v. NLRC, 323 SCRA 445 (2000).
Palmore v. Sidoti, 466 U.S. 529 (1984) See Republic v. Sandiganbayan, 407 SCRA 10 (2003)
West Virginia State Board of Education v. Barnette, 319 US 624 (1943)
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by the state and through which certain governmental acts or functions are performed. Although political parties play an important role in our democratic set-up as an intermediary between the state and its citizens, it is still a private organization, not a state instrument. The discipline of members by a political party does not involve the right to life, liberty or property within the meaning of the due process clause. An individual has no vested right, as against the state, to be accepted or to prevent his removal by a political party. The only rights, if any, that party members may have, in relation to other party members, correspond to those that may have been freely agreed upon among themselves through their charter, which is a contract among the party members. Members whose rights under their charter may have been violated have recourse to courts of law for the enforcement of those rights, but not as a due process issue against the government or any of its agencies. Then, the Court added: But even when recourse to courts of law may be made, courts will ordinarily not interfere in membership and disciplinary matters within a political party. A political party is free to conduct its internal affairs, pursuant to its constitutionally-protected right to free association.
C.
DUE PROCESS
Due process might as well provide a sort of a Swiss Army Knife guarantee given its adaptability and flexibility as a legal argument. The Due Process Clause is a handy legal tool for the protection of the valued rights to life, liberty and property, and all other freedoms and liberties that inhere or adhere to them. It provides both a safeguard to ensure fairness in the proceedings that may be taken towards the deprivation of any liberty or property interests, or the impairment of any other right or freedom, as well as the guarantee of reasonableness in the enactment of laws and other regulations which impact life, liberty and property.19 Person includes both citizens and aliens, natural and juridical. It may not encompass, however, the foetus, or the unborn child20 though the 1987 Constitution has thought it advisable to provide protection for the unborn together with his mother.21 As for life, liberty and property, while all of these are protected, the extent of the care and importance they get are not the same some things are simply worth much more than others. Thus, when property rights come into conflict with human rights, the former must give way to the latter.22 [W]hen freedom of the mind is imperiled by law, it is freedom that commands a momentum of respect; when property is imperiled, it is the lawmakers judgment that commands respect. This dual standard may not precisely reverse the presumption of constitutionality in civil liberties cases, but obviously it does set up a hierarchy of values within the due process clause.23 And, more recently, the CourtUniversity of Santo Tomas of constitutionally protected also stated that, based on the hierarchy rights, the right to life enjoys precedence overof Civil Law Faculty the right to property. The reason is obvious: life is irreplaceable, property is not. When the state or LGUs exercise of police power clashes with a few individuals right to property, the former should prevail.24 Bar Review 2010
Take for instance what the Court said in regard to annulment of judgments: Although Section 2 of Rule 47 of the Rules of Court provides that annulment of a final judgment or order of an RTC may be based only on the grounds of extrinsic fraud and lack of jurisdiction, jurisprudence recognizes denial of due process as additional ground therefor. (Benatiro v. Heirs of Evaristo Cuyos, 560 SCRA 478 [2008])
19
20 21 22 23 24
See Roe v. Wade, 410 U.S. 113 (1973) The State shall equally protect the life of the mother and the life of the unborn from conception. (Art. II, 12)
A v. PBM Co., Inc., 51 SCRA 184 (1973) PBM Employees Org.Library Of Liberties vis--vis
Tolentino v. Secretary of Finance, 235 SCRA 630 (1994) Social Justice Society v. Atienza, Jr., 545 SCRA 92 (2008)
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And, if there is a hierarchy of rights, there is also a hierarchy of evidentiary values which calls into play the guarantee of the Due Process Clause if the inappropriate quantum of proof is demanded by the adjudicator in a particular proceeding.25 Relevant to the chore of weighing conflicting values are so-called standards of review, those instruments of measurement for validity of rules and regulations, adjustable and flexible depending on the interests involved. As for property, aside from those normally owned, it must not be overlooked that a final judgment vests in the prevailing party a right recognized and protected by law under the due process clause of the Constitution it is a vested interest which the government should recognize and protect, and of which the individual could not be deprived arbitrarily without committing an act of injustice.26 Public office is not property, and one cannot insist on staying in office if the office has already been abolished. But to the extent that ones right to security of tenure may be implicated, to that extent may due process be called upon for assistance. Unduly long preventive suspension could also be assailed on due process grounds.27 Licenses, while merely in the nature of a privilege, are not also insulated from the checking effects of the Due Process Clause, especially if abuse attended their withdrawal or discontinuance.28 The mere fact that ones claim to something might be based on a privilege and not a right is not determinative of the appropriateness of invoking due process reliance on the right privilege dichotomy has long been denigrated by leading lights in administrative law as too crude for consistent application by courts.29 Under traditional form of property ownership, recipients of privileges or largesses from the government could be said to have no property rights because they possessed no traditionally recognized proprietary interest therein. . . . But the right-privilege dichotomy came to an end when courts realized that individuals should not be subjected to the unfettered whims of government officials to withhold privileges previously given to them. Indeed to perpetuate such distinction would leave the citizens at the mercy of State functionaries, and worse, threaten the liberties protected by the Bill of Rights.30 Sight must not be lost of the fact that the Clause has two faces or components the procedural and the substantive. The former is essentially directed at officers who adjudicate while the latter is directed basically at those who enact the laws. The first refers to the guarantees of fairness in the process of determining whether a right, liberty or freedom is to be impaired or otherwise taken away while the latter goes to the very power of the authorities to come up with rules and other strictures under which man may live and enjoy the blessings of a civilized society, including the price that he has to pay to stay. Then again, it must not also be forgotten that procedural due process operates differently under University of Santo Tomas changing circumstances. Classic procedural due process issues are concerned with what kind of notice Faculty of Civil Law and what form of hearing the government must provide when it takes a particular action.31 Or, as stated in another case: Procedural due process requires a determination of what process is due, when it is due, Bar Review 2010
25 26 27 28
Manalo v. Roldan-Confesor, 215 SCRA 808 (1992)
Manotok Realty, Inc. v. CLT Realty Development Corporation, 476 SCRA 305 (2005) See Layno, Sr. v. Sandiganbayan, 136 SCRA 536 (1985) and Deloso v. Sandiganbayan, 173 SCRA 409 (1989)
[P]ilotage as a profession has taken on the nature of a property right. (Corona v. United Harbor Pilots Association of the Philippines, 283 SCRA 31 [1997])
29 30 31
A Library Of Liberties vis--vis An Mabuhay Textile Mills Corporation v. Ongpin, 141 SCRA 437 (1986)
City of Manila v. Laguio, Jr., 455 SCRA 308 (2005)
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Terminal Facilities and Services Corporation v. Philippine Ports Authority, 378 SCRA 82 (2002)
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and the degree of what is due.32 What may be required for purposes of judicial proceedings would not be the same in administrative proceedings.33 Those that satisfy the requirements of due process in the investigation of local appointive officials would not suffice for elective officials,34 and so on. It has also been held that where the trial court simply considered the person and past performance of the witness, and decided on this basis that he was a credible witness, rather than look at the merits of his testimony, such act, by itself, was a major error, a violation of due process a court must always decide on the basis of the evidence presented, not on the basis of any other extraneous consideration not before it.35 On substantive due process, the discussions made by the Court in Estrada v. Sandiganbayan, 369 SCRA 394 (2001), are quite instructive and edifying. It explained the void-for vagueness doctrine as most commonly stated 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 prohibited by the statute. It can only be invoked against that specie of legislation that is utterly vague on its face, i.e., that which cannot be clarified either by a saving clause or by construction. A statute or act may be said to be vague when it lacks comprehensible standards that men of common intelligence must necessarily guess at its meaning and differ in its application. In such instance, the statute is repugnant to the Constitution in two (2) respects it violates due process for failure to accord persons, especially the parties targeted by it, fair notice of what conduct to avoid; and, it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle. And what about the overbreadth doctrine? This doctrine decrees that a governmental purpose may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms. If ones purpose is simply to roast a pig, then he need not have to burn the barn. Justice Mendoza, concurring, also elucidated on the meaning, importance and relevance of the socalled standards of review or levels of scrutiny, those yardsticks used by the courts to determine the constitutionality of statutes impairing protected rights, liberties and freedoms. Determining whether there is sufficient justification for the governments action depends very much on the level of scrutiny used.36 This simply means that if the liberty involved were freedom of the mind or the person, the standard for the validity of governmental acts is much more rigorous and exacting, but where the liberty curtailed affects what are at the most rights of property, the permissible scope of regulatory measures is wider. Thus, under deferential review, laws are upheld if they rationally further a legitimate governmental interest, without courts seriously inquiring into the substantiality of such interest and examining the alternative means by which the objectives could be achieved. Under intermediate review, the substantiality of the governmental interest is seriously looked into and the availability of less restrictive alternatives are considered. Under strict scrutiny, the focus is on the presence of compelling, rather than substantial governmental interest and on the absence Santo Tomas University of of less restrictive means for achieving that interest. Strict scrutiny is a judicial standard for determining the quality and the amount of governmental interest Faculty of Civil Law brought to justify the regulation of fundamental freedoms. It is used today to test the validity of laws dealing with the regulation of speech, gender,Reviewfacial challenges are allowed for this purpose.37 Bar or race and 2010
32 33 34 35 36 37
Secretary of Justice v. Lantion, 343 SCRA 377 (2000) Cf. Banco Espaol-Filipino v. Palanca, 37 Phil. 921 (1918) and Ang Tibay v. Court of Industrial Relations, 69 Phil. 635 (1940) Joson v. Torres, 290 SCRA 279 (1998) People v. Sanchez, 569 SCRA 194 (2008)
City of Manila v. Laguio, Jr., 455 SCRA 308 (2005) In League of Cities, 571 SCRA 263 (2008), we also find this in n. 23:
The rational basis test is the minimum level of scrutiny that all government actions challenged under the equal protection clause must meet. The strict scrutiny test is used in discriminations based on race or those which result in violations of fundamental rights. Under the strict scrutiny test, to be valid the classification must promote a compelling state interest. The intermediate scrutiny test is used in
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The Court has also declared: [C]onstitutional due process demands a higher degree of clarity when infringements on life or liberty are intended. . . . In the matter of statutes that deprive a person of physical liberty, the demand for a clearer standard in sentencing is even more exacting.38 If one were to have a better appreciation of these standards of review, why not try to reminisce about the law school years where classroom sessions were either a bore, moments of trepidation and incessant prayers or occasions for hilarious incidents, courtesy of members other than the ones enjoying the fun? A students preparations for each subject then were generally dictated by the kind of professors he or she might have had whether members of terrorist cells or the soft and kind apostles of nonviolence and charity. Another way of looking at it, of course, is to see how those who graduated with honors are feeling the pressure to perform well in the Bar they should be better than the rest, or so it would logically seem to be. Otherwise, for what reason did they graduate with better distinctions than the rest if not their assumed and presumed more exemplary qualifications? (Of course, for others, beating such favored crop is a vindication of sorts nothing could be sweeter than being an underdog and trumping everyone, then showing up proud and confident in front of professors who saw no promise in them when still students.) Due Process guarantees have far-reaching consequences and ramifications. Due process has been utilized to assail acts of government which impinge on valued rights, liberties and freedoms. In the United States, for instance, it has been implicated in the right of a woman to have an abortion,39 and likewise attempted unsuccessfully to justify a claim to a right to suicide.40 Elsewhere, it has been referred to in relation to the rights to counsel,41 information,42 equal protection,43 public trial,44 need for courts to explicitly state the factual and legal bases for their judgments,45 reasonableness of presumptions,46 and even the right not to be subjected to excessive exemplary damages.47 It has also been considered in connection with expropriations,48 the determination of the voluntariness and admissibility
discriminations based on gender or illegitimacy of children. Under the intermediate scrutiny test, the classification must be substantially related to an important government objective. Laws not subject to the strict or intermediate scrutiny test are evaluated under the rational basis test, which is the easiest test to satisfy since the classification must only show a rational relationship to a legitimate government purpose. See Erwin Chemerinsky, Constitutional Law, Principles and Policies, 2nd Edition, pp. 645-646.
38 39 40 41
People v. Bon, 506 SCRA 168 (2006) See Roe v. Wade, 410 U.S. 113 (1973) See Washington v. Glucksberg, 521 U.S. 702 (1997)
E.g., People v. Bermas, 306 SCRA 135 (1999); People v. Santocildes, Jr., 321 SCRA 310 (1999); and, People v. Liwanag, 363 SCRA 62 (2001). In People v. Ferrer, 406 SCRA 658 (2003), the Court declared: The right to counsel proceeds from the fundamental principle of due process which basically means that a person must be heard before being condemned. The due process requirement is part of a persons basic rights; it is not a mere formality that may be dispensed with or performed perfunctorily.
42 43
Taada v. Tuvera, 136 SCRA 27 (1985) and 146 SCRA 446 (1986)
Philippine Judges Association v. Prado, 227 SCRA 703 (1993). (The equal protection of the laws is embraced in the concept of due process, as every unfair discrimination offends the requirements of justice and fair play. It has nonetheless been embodied in a separate clause in Article III, Sec. 1, of the Constitution to provide a more specific guaranty against any form of undue favoritism or hostility from the government. Arbitrariness in general may be challenged on the basis of the due process clause. But if the particular act assailed partakes of an unwarranted partiality or prejudice, the sharper weapon to cut it down is the equal protection clause.)
44 45 46 47
Re Oliver, 333 U.S. 257 (1948) Tot v. United States, 319 U.S. 463 (1943)
Yao v. Court of Appeals, 344 SCRA 202 (2000)
See BMW of North America, Inc. v. Gore, Jr., 517 U.S. 559 (1996); Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424 (2001); and, State Farm Mutual Automobile Insurance Company v. Campbell, 538 U.S. 408 (2003).
48
Visayan Refining Co. v. Camus, 40 Phil. 550 (1919)
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of extrajudicial confessions,49 as well as the reasonable doubt standard in criminal cases.50 It has likewise been invoked to justify the compelled production of relevant presidential materials as against a generalized assertion of executive privilege.51 Court access by prisoners is also considered part of the guarantee. The constitutional guarantee of due process of law has as a corollary the requirement that prisoners be afforded access to the courts in order to challenge unlawful convictions and to seek redress for violations of their constitutional rights. This means that inmates must have a reasonable opportunity to seek and receive the assistance of attorneys.52 Further, inordinate reliance on technical rules of procedure may also offend the guarantee.53 Nevertheless, caution should also be had in trying to use it for it could as soon lend itself to noticeable misuse. Depending on how well one may wield the due process argument, he may find an ally or just an illusory companion.54 In one case, the Supreme Court opened its opinion with this observation: It has not escaped the attention of the Court that when a party runs out of arguments, or never had any to begin with, it usually pleads a denial of due process. The plea may impress at first glance, what with all its plaintive invocation of the Bill of Rights, but it does not often succeed upon closer examination.55 In another case, it concluded with this observation: The Court is not unaware of the practice of some lawyers who, lacking plausible support for their position, simply claim a denial of due process as if it were a universal absolution. The ground will prove unavailing, and not surprisingly since it is virtually only a pro forma argument. Due process is not to be bandied like a slogan. It is not a mere catch-phrase. As the highest hallmark of the free society, its name should not be invoked in vain but only when justice has not been truly served.56 Lately, the Court also observed: The Court shall not fake naivet of the prevalent practice among lawyers who, for lack of better argument to bolster their position, engage in waxing lyrical to a denial of due process.57 1. Republic v. Cagandahan, 565 SCRA 72 (2008) Most persons may simply take whatever may come their way, specially in regard to the gender that nature may have blessed or cursed them with. Others may want to take matters into their own hands. Here, Cagandahan, Jennifer and female at birth, is afflicted with the condition called Congenital Adrenal Hyperplasia (CAH), or intersexuality. As she grew up, she also developed the attributes of being male. Biologically, nature endowed her with a mixed (neither consistently and categorically female nor consistently and categorically male) composition. She has female (XX) chromosomes but her body system naturally produced high levels of male hormones (androgen). As a result, he now has ambiguous genitalia and the phenotypic features of a male. Before the Court, she wants to have correction of her birth certificate to reflect changes in her gender and name male and Jeff. Can he be accommodated?
University of Santo Tomas Faculty or Civil Law The Court said yes. It is a recognition of her ofhis liberty to choose what she or he really is. CAH Bar Review 2010
See Dickerson v. United States, 530 U.S. 428 (2000) In Re Winship, 397 U.S. 358 (1970) United States v. Nixon, 418 U.S. 683 (1974) Procunier v. Martinez, 416 U.S. 396 (1974), at 419. See Banaga v. Majaducon, 494 SCRA 153 (2006) See Office of the Court Administrator v. Floro, Jr., 486 SCRA 66 (2006)
is one of many conditions that involve intersex anatomy. During the twentieth century, medicine adopted
49 50 51 52 53 54 55 56 57
G
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A of Labor and Employment, 196 vis--vis An Bautista v. Secretary Library Of Liberties SCRA 470 (1991)
Pacific Timber Export Corporation v. National Labor Relations Commission, 224 SCRA 860 (1993) NEECO II v. National Labor Relations Commission, 469 SCRA 169 (2005)
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the term intersexuality to apply to human beings who cannot be classified as either male or female. The term is now of widespread use. According to Wikipedia, intersexuality is the state of a living thing of a gonochoristic species whose sex chromosomes, genitalia, and/or secondary sex characteristics are determined to be neither exclusively male nor female. An organism with intersex may have biological characteristics of both male and female sexes. The Court explained: In deciding this case, we consider the compassionate calls for recognition of the various degrees of intersex as variations which should not be subject to outright denial. It has been suggested that there is some middle ground between the sexes, a no-mans land for those individuals who are neither truly male nor truly female. The current state of Philippine statutes apparently compels that a person be classified either as a male or as a female, but this Court is not controlled by mere appearances when nature itself fundamentally negates such rigid classification. The Court concluded: Ultimately, we are of the view that where the person is biologically or naturally intersex the determining factor in his gender classification would be what the individual, like respondent, having reached the age of majority, with good reason thinks of his/her sex. Respondent here thinks of himself as a male and considering that his body produces high levels of male hormones (androgen) there is preponderant biological support for considering him as being male. Sexual development in cases of intersex persons makes the gender classification at birth inconclusive. It is at maturity that the gender of such persons, like respondent, is fixed. In short, to the person with CAH belongs the human right to the pursuit of happiness and of health, and to him should belong the primordial choice of what courses of action to take along the path of his sexual development and maturation, and in absence of evidence to show that classifying him as male will harm other members of society, the Court will affirm as valid and justified his position and his personal judgment of being a male.58 2. Board of Medicine v. Ota, 558 SCRA 234 (2008) Here, the Board of Medicine and Professional Regulation Commission refused to grand a license to Ota, a Japanese who took medical education in the Philippines and who thereafter passed the Board exam, on the ground that there is no real reciprocity between Japan and the Philippines conditions for practice in Japan are not practical or attainable (practically impossible for a Filipino), and that, in any event, the grant is discretionary with Board. It must be stressed however that the power to regulate the exercise of a profession or pursuit of an occupation cannot be exercised by the State or its agents in an arbitrary, despotic, or oppressive manner. A political body which regulates the exercise of a particular privilege has the authority to both forbid and grant such privilege in accordance with certain conditions. As the legislature cannot validly bestow an arbitrary power to grant or refuse a license on a public agency or officer, courts will generally strike University of Santo Tomas down license legislation that vests in public officials discretion to grant or refuse a license to carry on Faculty of Civil Law some ordinarily lawful business, profession, or activity without prescribing definite rules and conditions for the guidance of said officials in theBar Review 2010 * Nowhere in said statutes [R.A. No. exercise of their power. 2382 (Medical Act of 1959) and P.D. 223 (Creating the PRC)] is it stated that the foreign applicant must show that the conditions for the practice of medicine in said country are practical and attainable by Filipinos. Neither is it stated that it must first be proven that a Filipino has been granted license and allowed to practice his profession in said country before a foreign applicant may be given license to practice in the Philippines. In other words, [i]t is enough that the laws in the foreign country permit a Filipino to get license and practice therein. Requiring respondent to prove first that a Filipino has
This is to be distinguished from Silverio v. Republic, 537 SCRA 373 (2007), where the petitioner wanted correction of his birth certificate to reflect the effects of his sex change through sex reassignment surgery. He wanted to change his name from Rommel to Mely, and from male to female. The Court said that there is no law which allows such corrections.
58
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already been granted license and is actually practicing therein unduly expands the requirements provided for under R.A. No. 2382 and P.D. No. 223. 3. Parreo v. Commission on Audit, 523 SCRA 390 (2007) When do retirement benefits accrue and become vested rights? And, what is the nature of the retirement benefits of military men? Section 27 of P.D. No. 1638, as amended by PD 1650, withdraws pension benefits of retired military men who have lost their Philippine citizenship. Is this not a violation of the right to due process, particularly on non-deprivation of property? PD 1638, as amended, does not impair any vested right or interest of petitioner. Where the employee retires and meets the eligibility requirements, he acquires a vested right to the benefits that is protected by the due process clause. At the time of the approval of PD 1638 and at the time of its amendment, petitioner was still in active service. Hence, petitioners retirement benefits were only future benefits and did not constitute a vested right. . . . It is only upon retirement that military personnel acquire a vested right to retirement benefits. And what is the nature of the retirement benefits of military men? [T]he retirement benefits of military personnel are purely gratuitous in nature. They are not similar to pension plans where employee participation is mandatory, hence, the employees have contractual or vested rights in the pension which forms part of the compensation. 4. Kuwait Airways Corporation v. Philippine Airlines, Inc., 587 SCRA 399 (2009) The Philippine Government, through the Civil Aeronautics Board, or any of its officials, cannot unilaterally terminate an air agreement between a private Philippine air carrier and a foreign airline. The Court acknowledged that the CAB has ample power under its organizing charter, to compel Philippine Airlines to terminate whatever commercial agreements the carrier may have. However, it noted that this is not a case where the CAB had duly exercised its regulatory authority over a local airline in order to implement or further government air policy. What happened instead was an officer of the CAB, acting in behalf not of the Board but of the Philippine government, had committed to a foreign nation the immediate abrogation of Philippine Airliness commercial agreement with Kuwait Airways. And while we do not question that ability of that member of the CAB to represent the Philippine government in signing the CMU, we do question whether such member could have bound Philippine Airlines in a manner that can be accorded legal recognition by our courts. The Court then went on to state that, We, as magistrates in a functioning democratic State with a fully fleshed Bill of Rights and a Constitution that emphatically rejects letat cest moi as the governing philosophy, think not. There University of Santo Tomas is nothing to prevent the Philippine government from utilizing all the proper channels under law to Faculty of Civil Law enforce such closure, but unless and until due process is observed, it does not have legal effect in this jurisdiction. Even granting that the agreement between the two governments or their representatives Bar Review 2010 creates a binding obligation under international law, it remains incumbent for each contracting party to adhere to its own internal law in the process of complying with its obligations. The promises made by a Philippine president or his alter egos to a foreign monarch are not transubstantiated by divine right so as to ipso facto render legal rights of private persons obviated. . . . The President or his alter egos do not have the legal capacity to dictate insuperable commands to private persons. And that undesirable trait would be refuted on the President had petitioners position prevailed, since it is imbued with the presumption that the commitment made to a foreign government becomes operative without complying A Library Of Liberties vis--vis An Arsenal Of Arms with the internal processes for the divestiture of private rights.
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5. Republic v. Caguioa, 536 SCRA 193 (2007) When you abuse a certain privilege, then dont be surprised if the same is suddenly yanked from you. This has something to do with the enactment of R.A. No. 9334 which withdrew tax exemptions for entities at Subic Special Economic and Freeport Zone (SBF) relative to importations of cigars, cigarettes, distilled spirits, fermented liquors and wines due to alleged smuggling activities spawned by the privilege. The rights granted under the Certificates of Registration and Tax Exemption of private respondents are not absolute and unconditional as to constitute rights in esse those clearly founded on or granted by law or is enforceable as a matter of law. These certificates granting private respondents a permit to operate their respective businesses are in the nature of licenses, which the bulk of jurisprudence considers as neither a property nor a property right. The licensee takes his license subject to such conditions as the grantor sees fit to impose, including its revocation at pleasure. A license can thus be revoked at any time since it does not confer an absolute right. While the tax exemption contained in the Certificates of Registration of private respondents may have been part of the inducement for carrying on their businesses in the SBF, this exemption, nevertheless, is far from being contractual in nature in the sense that the non-impairment clause of the Constitution can rightly be invoked. The withdrawal here was seen as a valid police power measure. Smuggling in whatever form is bad enough; it is worse when the same is allegedly perpetrated, condoned or facilitated by enterprises hiding behind the cloak of their tax exemption privileges. 6. Manotoc v. Court of Appeals, 499 SCRA 21 (2006) In an action in personam, personal service is the preferred mode of notifying him. If such could not be done, substituted service of summons may be resorted to, but then since it is extraordinary in character and in derogation of the usual method of service, such mode or service must faithfully and strictly comply with the prescribed requirements and circumstances authorized by the rules. Indeed, compliance with the rules regarding service of summons is as much important as the issue of due process as of jurisdiction. 7. Anonymous v. Radam, 541 SCRA 12 (2007) Speaking of birth certificates, whats wrong with anonymous or unknown authors, a.k.a. fathers? Radam, a court utility worker, was charged with immorality for having a child outside marriage. In her explanation, she admitted that she and her boyfriend, who had a pending application to migrate to Canada, had a mutual plan to remain unmarried. The Office of the Court Administrator recommended exoneration but submitted that Radam should be held liable for Conduct Unbecoming and fined for University unknown Tomas stating in the birth certificate that the father wasof Santo when she knew all along who it was. The Court agreed that she should could not be held liable as charged.59 But, could she be found guilty
The Court held that [f]or purposes of determining administrative responsibility, giving birth out of wedlock is not per se immoral under civil service laws. For such conduct to warrant disciplinary action, the same must be grossly immoral, that is, it must be so corrupt and false as to constitute a criminal act or so unprincipled as to be reprehensible to a high degree. Thus, [f]or a particular conduct to constitute disgraceful and immoral behavior under civil service laws, it must be regulated on account of the concerns of public and secular morality. It cannot be judged based on personal bias, specifically those colored by particular mores. Nor should it be grounded on cultural values not convincingly demonstrated to have been recognized in the realm of public policy expressed in the Constitution and the laws. At the same time, the constitutionally guaranteed rights (such as the right to privacy) should be observed to the extent that they protect behavior that may be frowned upon by the majority. Otherwise stated, two things may be concluded from the fact that an unmarried woman gives birth out of wedlock: (1) if the father of the child is himself unmarried, the woman is not ordinarily administratively liable for A Library immoral conduct. It may be a not-so-ideal situation and may cause complications for both mother disgraceful and Of Liberties vis--vis An Arsenal Of Arms and child but it does not give cause for administrative sanction. There is no law which penalizes an unmarried mother under those circumstances by reason of her sexual conduct or proscribes the consensual sexual activity between two unmarried persons. Neither does the situation contravene any fundamental state policy as expressed in the Constitution, a document that accommodates various belief
59
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for conduct unbecoming? No, for that would run afoul of due process. Radam was indicted only for alleged immorality for giving birth out of wedlock. It was the only charge of which she was informed. Thus, the recommendation of the OCA that she be held administratively liable in connection with an entry in the birth certificate of her son came like a thief in the night. It was unwarranted. She was neither confronted with it nor given the chance to explain it. To hold her liable for a totally different charge of which she was totally unaware will violate her right to due process. The essence of due process in an administrative proceeding is the opportunity to explain ones side, whether written or verbal. This presupposes that one has been previously apprised of the accusation against him or her. Here, Radam was deprived of both with regard to her alleged unbecoming conduct in relation to a certain statement in the birth certificate of her child. Then, the Court said: Unless the constitutional guarantee of due process is a mere platitude, it is the Courts duty to insist on its observance in all cases involving a deprivation, denigration or dilution of ones right to life, liberty and property. 8. Civil Service Commission v. Colanggo, 553 SCRA 640 (2008) In this case, it was discovered that there were significant irregularities in Colanggos documents photographs attached to Professional Board Examination for Teachers (PBET), application form and picture seat plan did not resemble Colanggo, and signature on PBET form markedly different from that affixed on his personal data sheet (PDS), i.e., someone other than he filed his PBET application and still another took the exam on his behalf. As a consequence, he was charged with dishonesty and conduct prejudicial to the best interest of the service. After a formal hearing, the Civil Service Commission dismissed him. The Court of Appeals reversed, however, holding that photocopies of PBET application form, picture plan and PDS should have been authenticated. The Supreme Court held otherwise. Administrative rules of procedure are construed liberally to promote their objective and to assist parties in obtaining just, speedy and inexpensive determination of their respective claims and defenses. The CSC, in investigating complaints against civil servants, is not bound by technical rules of procedure and evidence applicable in judicial proceedings. Accordingly, the CSC correctly appreciated the photocopies of PBET application form, picture seat plan and PDS (though not duly authenticated) in determining whether there was sufficient evidence to substantiate the charges against Colanggo who did not even object to the veracity of their contents but merely disputed their admissibility on the ground that they were not authenticated. 9. Geronga v. Varela, 546 SCRA 429 (2008) In this case, Geronga, an Engineer in Cadiz City, was charged with 1) Unjust Vexation, Contempt, Insubordination, Conduct Unbecoming a Public Officer, and Alarm and Scandal (Administrative Case University of Santo Tomas No. 96-04); and 2) Grave Misconduct and Engaging in Partisan Political Activity (with 2 other Faculty of Civil Law respondents) (Administrative Case No. 96-05). The matter was referred by the mayor to the City Legal Officer for investigation. After investigation, it was recommended that Geronga be dismissed for Grave Bar Review 2010 Misconduct in Adm. Case No. 96-04, and dismissed as well, together with others charged with him, in the other case for grave misconduct and partisan politics. Both recommendations were approved by the mayor and dismissed Geronga and the others. Without assistance of counsel, Geronga filed notice to appeal to CSC, then, still without assistance of counsel, filed a Joint Memorandum (together with another respondent in Adm. Case No. 96-05), in which he discussed Administrative Case No. 96-05
systems irrespective of dogmatic origins. (2) If the father of the child born out of wedlock is himself married to a woman other than the mother, then there is a cause for administrative sanction against vis--vis An Arsenalsuch aArms disgraceful and immoral A Library Of Liberties either the father or the mother. In Of case, the conduct; consists of having extramarital relations with a married person. The sanctity of marriage is constitutionally recognized and likewise affirmed by our statutes as a special contract of permanent union. Accordingly, judicial employees have been sanctioned for their dalliances with married persons or for their own betrayals of the marital vow of fidelity.
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only, and completely omitted reference to Administrative Case No. 96-04. The CSC ordered the reinstatement of all 3 respondents, but on motion for reconsideration, the CSC reconsidered in regard to Geronga since his dismissal in Adm. Case No. 96-04 was not appealed. The Court, after noting that there is a material difference between a mere recommendation to dismiss an employee and an administrative decision/resolution sentencing him with dismissal since it is not the recommendations which are the proper subject matter of an appeal to the CSC, but the decision/resolution of dismissal rendered by the disciplining authority, pointed out that in the Notice of Appeal which Geronga filed, he distinctly stated that what he was appealing to the CSC is his dismissal as contained in the mayors Memorandum Order approving the recommendations of the City Legal Officer. By so doing, he effectively included in his appeal not just Administrative Case No. 96-05 but also Administrative Case No. 96-04. Therefore, it was error to conclude that Administrative Case No. 96-04 had become final and executory for failure of petitioner to appeal the same to the CSC. Unfortunately for petitioner, the CA and CSC did not anymore look into the merits of the decision in Administrative Case No. 96-04 simply because he raised no issue or argument against it. Understandably, the CA and CSC could not be faulted for doing so; they were merely adhering to a basic rule that in any proceeding, a party who fails to cite specific grounds or raise particular arguments is deemed to have waived them. Such rule, however, is not sacrosanct. It yields to the imperatives of equity, which often arise in administrative cases where at stake is the security of tenure of labor, the protection of which no less than the Constitution guarantees. Deprivation of security of tenure may be justified only for the causes specified and in the manner prescribed by law. Should there be doubt in the legality of either cause or mode of dismissal, public interest demands the resolution of the doubt wholly on its substance, rather than solely on technical minutiae. So what now? While petitioner, unaided by legal counsel, may have omitted to raise specific grounds against the decision insofar as Administrative Case No. 96-04 is concerned, it cannot be denied that he intended to appeal from it. The least he deserves then is a scrutiny of the legal and factual bases of his dismissal. And, the Court further pointed out: As it turns out, upon review, said decision, insofar as it relates to Administrative Case No. 96-04, is patently void. How come? Two fundamental requirements of due process in administrative cases are that a person must be duly informed of the charges against him; and that he cannot be convicted of an offense or crime with which he was not charged. A deviation from these requirements renders the proceeding invalid and the judgment issued therein a lawless thing that can be struck down anytime. In the present case, the records of Administrative Case No. 96-04 reveal that petitioner was dismissed for an act which was not alleged in the administrative charge filed against him. The conclusion which the City Legal Officer which Del Pilar arrived at in his recommendation, and which became the basis of the dismissal of Geronga, has no bearing whatsoever on the offenses with University of Santo Tomas which the latter was charged underFaculty Complaint nor to the incidents/acts described therein. the Sworn of Civil Law Rather, the conclusion pertains solely to the alleged defamatory statements which Geronga made in his Letter-Answer to the Sworn Complaint. Nowhere in the records of Administrative Case No. 96-04 does Bar Review 2010 it appear that petitioner was charged with grave misconduct, or that he was held to answer for his alleged defamatory statements in his letter. Thus, the recommendation and the dismissal order were issued in utter contempt of the right of petitioner to due process. Both are void ab initio and should be treated as inexistent. The mayor could not have approved and adopted a void recommendation. In effect, there was nothing for petitioner to appeal from in Administrative Case No. 96-04.
Is it then all good news for Geronga? No, not really. The Court added: That said, however, the A Library Of 98-V-05 and the December 1, 1997 Resolution/Recommendation nullity of Memorandum Order No. Liberties vis--vis An Arsenal Of Arms leaves Administrative Case No. 96-04 unresolved. Although the Court may already decide said case
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based on the records before us, the better policy is for us to defer to the prerogative granted under Section 17, Rule 3 of the Rules of Court, to the primary disciplining authority, the incumbent mayor of Cadiz City, whether or not to pursue said administrative case. Well, if anything, the case could be good news for aspiring lawyers it highlights the pitfalls of trying to do away with their services. 10. Uy v. Office of the Ombudsman, 556 SCRA 73 (2008) Whats In a Name? In the plunder case against former President Estrada and others, included among those charged was one Eleuterio Tan a.k.a. Eleuterio Ramos Tan or Mr. Tan (with address at Valenzuela City or Mandaluyong City). In time, there was request for issuance of a warrant of arrest against Victor Jose Tan Uy [with address in Cebu] alias Eleuterio Tan, Eleuterio Ramos Tan or Mr. Uy, based allegedly on positive identification made through photographs, as early as the Senate Impeachment Trial Estrada, as well as on the Sworn Statement of Ma. Caridad Manahan-Rodenas executed before Atty. Roxas of the Fact Finding and Intelligence Bureau of the Office of the Ombudsman (FFIB) (identification documents). Petitioner sought the conduct of preliminary investigation as to him which the Sandiganbayan granted. The Ombudsman then issued an Order requiring the petitioner to file his counter-affidavit, the affidavits of his witnesses, and other supporting documents. Attached to the Order were the Complaint-Affidavit in OMB-0-00-1756 and the NBI Report in OMB-0-00-1720. After the petitioner filed his counter-affidavit in which he pointed out that he was not among those charged, the OMB required him to appear for clarificatory hearing but he did not, claiming that there was no need for it. In the resolution that the OMB subsequently issued, it found probable cause against petitioner. Thus, petitioner was constrained to assail the same before the Supreme Court, alleging grave abuse of discretion for, among other, having relied on evidence and findings that were never part of the complaints-affidavits or their supporting documents served upon him, and which were never adduced or presented in the course of the preliminary investigation conducted. Specifically, he claimed that the duty of the Ombudsman is to determine the existence of probable cause based on the evidence presented, not to fill up the deficiencies of the complaint, nor to remedy its weaknesses. The Court agreed. At the core of the present controversy is the regularity, in the context of accepted standards of due process, of the Ombudsmans conduct of the Sandiganbayan-ordered preliminary investigation. The standards that at the very least assume great materiality and significance are those enunciated in the leading case of Ang Tibay v. Court of Industrial Relations which instructively tells us in defining the basic due process safeguards in administrative proceedings that the decision (by an University of Santo Tomas administrative body) must be rendered on the evidence presented at the hearing, or at least contained Faculty of Civil Law in the record and disclosed to the parties affected. [T]he petitioner was never identified in the previous preliminary investigation to be the person identified by assumed names or aliases in the supporting Bar Review 2010 complaint-affidavits; hence, a new preliminary investigation should be conducted to identify him as the person who, using the aliases Eleuterio Tan, Eleuterio Ramos Tan or Mr. Uy, opened and withdrew from the Landbank account in the course of a series of acts collectively constituting the crime of plunder. The critical evidence linking the petitioner to the plunder case is his identification through the identification documents. This notwithstanding and quite inexplicably, the identification documents despite the fatal infirmity the Sandiganbayan found in the first preliminary investigation were once again not given to the petitioner in the subsequent Sandiganbayan-ordered preliminary investigation to inform him of his alleged links to the A Library Ofthe complaint-affidavits. Arsenal Of Arms charges under Liberties vis--vis An
Further, the Court added: That the petitioner may have actual prior knowledge of the identification
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documents from proceedings elsewhere is not a consideration sufficiently material to affect our conclusion. Reasonable opportunity to controvert evidence and ventilate ones cause in a proceeding requires full knowledge of the relevant and material facts specific to that proceeding. One cannot be expected to respond to collateral allegations or assertions made, or be bound by developments that transpired, in some other different although related proceedings, except perhaps under situations where facts are rendered conclusive by reason of judgments between the same parties a situation that does not obtain in the present case. Otherwise, surprise which is anathema to due process may result together with the consequent loss of adequate opportunity to ventilate ones case and be heard. Following Ang Tibay, a decision in a proceeding must be rendered based on the evidence presented at the hearing (of the proceeding), or at least contained in the record (of the proceeding) and disclosed to the parties affected (during or at the proceeding). In short, it is a basic due process requirement that the right to know and to meet a case requires that a person be fully informed of the pertinent and material facts unique to the inquiry to which he is called as a party respondent. Under this requirement, reasonable opportunity to contest evidence as critical as the identification documents should have been given the petitioner at the Sandiganbayan-ordered preliminary investigation as part of the facts he must controvert; otherwise, there is nothing to controvert as the burden of evidence lies with the one who asserts that a probable cause exists. 11. Genuino v. National Labor Relations Commission, 539 SCRA 342 (2007) In order not to run afoul of the requirements of due process, an employee sought to be dismissed must be given the particulars of the acts or omissions which are supposed to be the bases of the charge. They must not be too general in order to enable the employee to intelligently and adequately prepare his or her defense. In this case, the letters sent by the employer did not identify the particular acts or omissions allegedly committed by the employee. The extent of the latters alleged knowledge and participation in the diversion of banks clients funds, manner of diversion, and amounts involved; the acts attributed to the employee that conflicted with the banks interests; and the circumstances surrounding the alleged irregular transactions, were not specified in the notices/letters. The two-notice requirement of the Labor Code is an essential part of due process. The first notice informing the employee of the charges should neither be pro-forma nor vague. It should set out clearly what the employee is being held liable for. The employee should be afforded ample opportunity to be heard and not mere opportunity. 12. Janssen Pharmaceutica v. Silayro, 546 SCRA 628 (2008)
University of by petitioner for respondent to surrender all his Before 25 November 1998 or the date given Santo Tomas Faculty of Civil Law accountabilities, a Memorandum dated 24 November 1998 was issued to him for the following alleged infractions: (1) failure to turn over company vehicles assigned after the receipt of instruction to that effect from superiors, and (2) refusingBar Review 2010 or neglecting to obey Company management orders to perform work without justifiable reason. The Court held: The superficial compliance with two notices and a hearing in this case cannot be considered valid where these notices were issued and the hearing made before an offense was even committed. The first notice, issued on 24 November 1998, was premature since respondent was obliged to return his accountabilities only on 25 November 1998. Accordingly, [s]ince petitioners ostensible compliance with the procedural requirements of notice and hearing took place before an offense was even committed, respondent was robbed of his rights to explain his side, to A Library Of Liberties vis--vis An Arsenal present his evidence and rebut what was presented against him, . . . Of Arms
A person cannot be made to account for and explain an event that has yet to happen.
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13. Formantes v. Duncan Pharmaceuticals, Phils., Inc., SCRA (G.R. No. 170661, 4 December 2009) Can the Labor Arbiter uphold an employees dismissal on a ground other than that specified by the employer in its Notice of Termination? Here, the Court said yes. Referring to its ruling in Rubberworld (Phils.), Inc. v. National Labor Relations Commission,183 SCRA 421 (1990), at 424, where it held: It is now axiomatic that if just cause for termination of employment actually exists and is established by substantial evidence in the course of the proceedings before the Labor Arbiter, the fact that the employer failed, prior to such termination, to accord to the discharged employee the right of formal notice of the charge or charges against him and a right to ventilate his side with respect thereto, will not operate to eradicate said just cause so as to impose on the employer the obligation of reinstating the employee and otherwise granting him such other concomitant relief as is appropriate in the premises. It went on to observe: Although petitioner was dismissed from work by the respondent on the ground of insubordination, this Court cannot close its eyes to the fact that the ground of sexual abuse committed against petitioner's subordinate actually exists and was established by substantial evidence before the LA. 14. Anillo v. Commission on the Settlement of Land Problems, 534 SCRA 228 (2007) Due process does not always have to mean actual notice all the time. It may also be satisfied if and when there is constructive notice, such as when one has been represented by a lawyer who has been appearing all along for the interest of the party and others in the proceedings. In administrative proceedings, procedural due process has been recognized to include the following: (1) the right to actual or constructive notice of the institution of proceedings which may affect a respondents legal rights; (2) a real opportunity to be heard personally or with the assistance of counsel, to present witnesses and evidence in ones favor, and to defend ones rights; (3) a tribunal vested with competent jurisdiction and so constituted as to afford a person charged administratively a reasonable guarantee of honesty as well as impartiality; and (4) a finding by said tribunal which is supported by substantial evidence submitted for consideration during the hearing or contained in the records or made known to the parties affected. 15. Benatiro v. Heirs of Evaristo Cuyos, 560 SCRA 478 (2008) Although Section 2 of Rule 47 of the Rules of Court provides that annulment of a final judgment or order of an RTC may be based only on the grounds of extrinsic fraud and lack of jurisdiction, jurisprudence recognizes denial of due process as additional ground therefor. Here, the Court held: While we find that the CA correctly annulled the CFI Order dated December 16, 1976, we find that it should be annulled not on the ground of extrinsic fraud, as there is no sufficient evidence to hold Atty. University of Santo Tomas Taneo or any of the heirs guilty of fraud, but on the ground that the assailed order is void for lack of due Faculty of Civil Law process. And, of course, a void judgment for lack of due process of law, is no judgment at all.
Bar Floro, Jr., 2010 16. Office of the Court Administrator v.Review 486 SCRA 66 (2006)
Where a judge entertains an unorthodox belief system such as believing in psychic visions, and in dwarfs, and in being able to write while on trance, of having been seen by several people in two places at the same time, and of foreseeing the future because of his power of psychic phenomenon the same indubitably shows his inability to function with the cold neutrality of an impartial judge. Such beliefs, specially so when acted upon by the judge, are so at odds with the critical and impartial thinking required of a magistrate. The judiciary isOf Libertiesthe proper placeArsenalaOf Arms stay. A Library certainly not vis--vis An for such person to
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17. EDI-Staffbuilders International, Inc. v. National Labor Relations Commission, 537 SCRA 409 (2007) Failure to furnish the adverse party with a copy of the appeal is treated only as a formal lapse, an excusable neglect, and hence, not a jurisdictional defect. Accordingly, in such a situation, the appeal should not be dismissed; however, it should not be given due course either. The duty is then imposed on the NLRC to require the appellant to comply with the rule that the opposing party should be provided with a copy of the appeal memorandum. Such failure of the NLRC to order the appellant to furnish EDI with the Appeal Memorandum constitutes grave abuse of discretion and the NLRC should proceed with the adjudication of the case. This failure deprived the other party of procedural due process which can serve as basis for the nullification of proceedings in the appeal before the NLRC. It is not level playing field. The rights of the employers to procedural due process cannot be cavalierly disregarded for they too have rights assured under the Constitution. 18. Portuguez v. GSIS Family Bank, 517 SCRA 309 (2007) Portuguez complained of having been constructively dismissed, and that he was forced to retire at the prime of his life as a consequence of the discrimination, unfair treatment and intense pressure he got from management. On the issue of discrimination, he alleged that he reliably learned that Bank records show that your newly hired officers are being paid the basic salaries in the range of P25,000 to P30,000. = = The Court shot this down with the observation that [s]uch bare and sweeping statement contains nothing but empty imputation of a fact that could hardly be given any evidentiary weight by this Court. It is indeed true that the demand letter made reference to bank records upon which petitioner purportedly derived his allegation but no such bank records were ever presented as evidence at any stage of the proceedings. Indubitably, such self-serving and unsubstantiated declaration is insufficient to establish a case before quasi-judicial bodies. And to add salt to a gaping wound, the Court concluded: Verily, petitioners case is devoid of substance to convince even the unreasonable minds, for evidently the records are stripped of supporting proofs to, at the very least, even just verify his claim. In the same way, it is not enough to simply write something in your examination booklets. You must have more than conclusions to convince the examiner that at the very least you know what you are supposedly talking about. 19. Viva Footwear Manufacturing Corporation v. Securities and Exchange Commission, 522 SCRA 609 (2007) In Pefianco v. Moral, 322 SCRA 439 (2000), and echoed in Velasquez v. Hernandez, 437 SCRA 537 (2004), the Court held that a University of Santo Tomasnot entitled to be informed of respondent in an administrative case is findings and recommendations of an investigating committee. He is only entitled to the administrative Faculty of Civil Law decision. Viva Footwear is to the same effect. Here, the Court said that a respondent in an administrative case is not entitled to be informed of the preliminary findings and recommendations; he is entitled only Bar Review 2010 to a reasonable opportunity to be heard, and to the administrative decision based on substantial evidence. Note that it is the administrative order, not the preliminary report, which is the basis of any further remedies the losing party in an administrative case may pursue. Its right to administrative due process only entitles it to an opportunity to be heard and to a decision based on substantial evidence. No more, no less.
20. Solid Homes, Inc. v. Laserna, 550 SCRA 613 (2008) A Library Of Liberties vis--vis An Arsenal Of Arms The issue here is the validity of an decision of the Office of the President which consisted of only a page affirming the judgment of the HLURB, which was attached to it. The Court held that [t]he
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constitutional mandate that, no decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based, does not preclude the validity of memorandum decisions, which adopt by reference the findings of fact and conclusions of law contained in the decisions of inferior tribunals. And, in regard to that constitutional provision itself, the Court said that Section 14, Article VIII of the 1987 Constitution need not apply to decisions rendered in administrative proceedings, as in the case a bar. Said section applies only to decisions rendered in judicial proceedings. In fact, Article VIII is titled Judiciary, and all of its provisions have particular concern only with respect to the judicial branch of government. Certainly, it would be error to hold or even imply that decisions of executive departments or administrative agencies are obliged to meet the requirements under Section 14, Article VIII. The rights of parties in administrative proceedings are not violated as long as the constitutional requirement of due process has been satisfied. Making reference to what was held in the venerable Ang Tibay v. Court of Industrial Relations, 69 Phil. 635 (1940), the Court stated that among the due process requirements are that the decision must be rendered on the evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected; and that the decision be rendered in such a manner that the parties to the proceedings can know the various issues involved, and the reasons for the decisions rendered. Note that there is no requirement in Ang Tibay that the decision must express clearly and distinctly the facts and the law on which it is based. For as long as the administrative decision is grounded on evidence, and expressed in a manner that sufficiently informs the parties of the factual and legal bases of the decision, the due process requirement is satisfied. So, is the one-page decision valid? The Office of the President did not violate petitioners right to due process when it rendered its one-page Decision. In the case at bar, it is safe to conclude that all the parties, including petitioner, were well-informed as to how the Decision of the Office of the President was arrived at, as well as the facts, the laws and the issues involved therein because the Office of the President attached to and made an integral part of its Decision the Decision of the HLURB Board of Commissioners, which it adopted by reference.60 21. Espia v. Cerujano, 550 SCRA 107 (2008) Can one charged with Conduct Grossly Prejudicial to the Best Interest of the Service be found guilty of Grave Misconduct? Just like in Lucas, the Court said it cannot be done. Conduct grossly prejudicial to the service does not necessarily include the elements of grave misconduct. The word gross connotes something beyond measure; beyond allowance; not to be excused; flagrant; shameful while prejudicial means detrimental or derogatory to a party; naturally, probably or actually bringing about a wrongful result. Conduct grossly prejudicial of the best interest of the service may or may not be University to Santo Tomas characterized by corruption or a willful intent to of Civillaw or to disregard established rules. Under Faculty violate the Law the Civil Service law and rules, there is no concrete description of what specific acts constitute the grave offense of conduct grossly prejudicial to the best interest of the service, although this Court has Bar Review 2010 considered the following acts or omissions, among others, as such: misappropriation of public funds, abandonment of office, failure to report back to work without prior notice, failure to safe keep public records and property, making false entries in public documents and falsification of court orders. While grave misconduct and conduct grossly prejudicial to the best interest of the service are both grave offenses under the Omnibus Rules Implementing Book V of Executive Order No. 292, grave misconduct has a graver penalty. A Library Of Liberties vis--vis An Arsenal Of Arms 60
Cf. Pilipinas Kao, Inc. v. Court of Appeals, 372 SCRA 548 (2001), where the Court said the constitutional and statutory mandate that no decision shall be rendered by any court of record without expressing therein clearly and distinctly the facts and the law on which it is based applies as well to dispositions by quasi-judicial and administrative bodies.
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22. Romagos v. Metro Cebu Water District, 533 SCRA 50 (2007) Even the weird, the strange and the incomprehensible are entitled to their day and night. This is a case regarding separation from the service due to mental incapacity. Mental incapacity could be a ground for either a disciplinary or non-disciplinary separation. It is disciplinary if the mental incapacity or disability is due to immoral or vicious habits, in which case separation from the service is done by way of a disciplinary proceeding. On the other hand, [w]hile Section 46 of E.O. No. 292 is silent on this matter, mental incapacity not arising from immoral or vicious habits is also a cause for separation under Section 26 of E.O. No. 292 and Section 2(2), Article IX(B) of the 1987 Constitution, which demand of government officers and employees continuing merit and fitness. Separation from the service for such cause is carried out through a non-disciplinary process governed by CSC Memorandum Circular No. 40, series of 1998 (MC 40-98). Any difference in the two modes of separation? Yes, the first carries administrative disabilities, such as forfeiture of retirement benefits and perpetual disqualification from employment in the government service, while the second does not. But both result in loss of employment a property right protected under the due process clause. Hence, even if considered a non-disciplinary mode of separation, dropping from the rolls due to mental incapacity not arising from immoral or vicious habits is subject to the requirements of due process. So what would be the due process requirements then in cases where an employee has to be separated from the service due to mental incapacity? Clearly, before an officer or employee may be dropped from the rolls for mental incapacity, the following elements and process must obtain: first, that it has been observed that the subject officer or employee has been behaving abnormally for an extended period; second, that it has been established through substantial evidence that such abnormal behavior manifests a continuing mental disorder and incapacity to work; third, that a written notice is issued by the subjects immediate supervisor, describing the formers continuing mental disorder and incapacity to work and citing the reports of his co-workers or immediate supervisor, as confirmed by the head of office; and finally, that another notice is issued by the appointing authority or head of office, informing the subject of his separation from the service due to mental incapacity. Thus, a declaration of mental disorder does not automatically translate to a judgment of mental incapacity to perform work. A window remains open for the affected officer or employee to counter opinion on his mental condition and to show that his ability to work remains unimpaired. Only then may the appointing authority or head of office decide on whether said officer or employee is no longer mentally capable of performing his work and should be discharged. These requirements are designed to obviate misuse of non-disciplinary modes of separation for petty vengeance or vicious harassment.
Faculty of Civil Law While it is within the academic freedom of learning institutions to impose discipline upon students guilty of certain offenses, the same must, however, be exercised prudently and not just whimsically or Bar be appropriate for arbitrarily wielded. In short, the penalty mustReview 2010 the misdeed committed. It is true that schools have the power to instill discipline in their students as subsumed in their academic freedom and that the establishment of rules governing university-student relations, particularly those pertaining to student discipline, may be regarded as vital, not merely to the smooth and efficient operation of the institution, but to its very survival. This power, however, does not give them the untrammeled discretion to impose a penalty which is not commensurate with the gravity of the misdeed. If the concept of proportionality between the offense committed and the sanction imposed is not followed, an element of A That would Liberties vis--vis An Arsenal arbitrariness intrudes. Library Ofgive rise to a due process question. Of Arms
23. De La Salle University, Inc. v. Court ofof Santo Tomas (2007) University Appeals, 541 SCRA 22
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Thus, the Court held that the penalty of expulsion61 is grossly disproportionate to the gravity of the acts committed by the students who were found guilty in two mauling incidents which lasted only for few seconds, with the victims not suffering any serious injury. Disciplinary measures especially where they involve suspension, dismissal or expulsion, cut significantly into the future of a student. They attach to him for life and become a mortgage of his future, hardly redeemable in certain cases. Officials of colleges and universities must be anxious to protect it, conscious of the fact that, appropriately construed, a disciplinary action should be treated as an educational tool rather than a punitive measure. The students were meted only the penalty of exclusion.62 24. Office of the Ombudsman v. Sison, SCRA (G.R. No. 185954, 16 February 2010) Can the Office of the Ombudsman intervene in the appeal from the Court of Appeals decision reversing the OMBs earlier decision? No. It should remain detached it must keep in mind that it is an adjudicator, not an advocate Clearly, the Office of the Ombudsman is not an appropriate party to intervene in the instant case. It must remain partial and detached. More importantly, it must be mindful of its role as an adjudicator, not an advocate. It is an established doctrine that judges should detach themselves from cases where their decisions are appealed to a higher court for review. The raison detre for such a doctrine is the fact that judges are not active combatants in such proceeding and must leave the opposing parties to contend their individual positions and the appellate court to decide the issues without the judges active participation. When judges actively participate in the appeal of their judgment, they, in a way, cease to be judicial and have become adversarial instead. 25. Ledesma v. Court of Appeals, 541 SCRA 444 (2007) Is it part of the guarantee of due process before administrative agencies which oversee certain professions that there must first be a complainant before they could investigate and eventually take back a license that might have been given in the meantime? In this case the Court said no, not necessarily. The absence of a complainant also did not affect the regularity of the investigation. As opposed to a regular trial court, an administrative agency, vested with quasi-judicial functions, may investigate an irregularity on its own initiative. Particularly in the instant case, the overriding considerations of public safety warranted the investigation of the falsification of the subject ATO-AEB certification, which allowed petitioner to undergo training despite his lack of qualifications. This involves a case where the Air Transportation Office (ATO) revoked an airline pilots license and banned him from taking any theoretical examination in the future. This came about after ATOs investigations disclosed discrepancies and irregularities in the pilots examination results and certification. In this regard, an airman license cannot be considered a property right, it is but a mere University the ATO and its revocation if warranted. privilege, subject to the restrictions imposed byof Santo Tomas And, as reminder about the proper scope of judicial review of administrative determinations, the Court said: In reviewing administrative decisions of the executive branch of the government, the Bar Review 2010 findings of facts made therein are to be respected so long as they are supported by substantial evidence. Hence, it is not for the reviewing court to weigh the conflicting evidence, determine the credibility of witnesses, or otherwise substitute its judgment for that of the administrative agency with respect to the sufficiency of evidence. Administrative decisions in matters within the executive jurisdiction can only be set aside on proof of gross abuse of discretion, fraud, or error of law. These principles negate the
Faculty of Civil Law
An extreme penalty of an erring pupil or student consisting of his exclusion from admission to any public or private school in A Library Of Liberties vis--vis An Arsenal Of Arms the Philippines and which requires the prior approval of the Secretary. (Manual of Regulations for Private Schools [1992]) A penalty in which the school is allowed to exclude or drop the name of the erring pupil or student from the school rolls for being undesirable, and transfer credentials immediately issued. (Manual of Regulations for Private Schools [1992])
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power of the reviewing court to re-examine the sufficiency of the evidence in an administrative case as if originally instituted therein, and do not authorize the court to receive additional evidence that was not submitted to the administrative agency concerned. 26. Alcuizar v. Carpio, 529 SCRA 216 (2007) This involves a charge by a married court stenographer against a judge for sexual harassment once a forced kiss, another an attempt, other times touching her legs and giving her a wink. While substantial evidence would ordinarily suffice to support a finding of guilt, the rule is a bit different where the proceedings involve judges charged with grave offense. Administrative proceedings against judges are, by nature, highly penal in character and are to be governed by the rules applicable to criminal cases. The quantum of proof required to support the administrative charges or to establish the ground/s for the removal of a judicial officer should thus be more than substantial; they must be proven beyond reasonable doubt. The Court then concluded: Going over the testimonial and documentary evidence thus adduced during the investigation, the proof-beyond-reasonable-doubt threshold required under the premises has not been hurdled. As it were, circumstances obtained and/or credible evidence presented tended to cast a heavy cloud on complainants credibility and, necessarily, her case. 27. Tan v. Pacuribot, 540 SCRA 246 (2007)63 Judges, sexual harassment and quantum of proof again! Judge Pacuribot was charged administratively for sexual harassment committed against two married subordinates a court stenographer, and a clerk in the Parole and Probation Office. The matter was referred to a Court of Appeals Justice for investigation and recommendation. The Investigating Justice found the charges well founded, making reference to quantum of evidence that would suffice for said purpose proof beyond reasonable doubt as enunciated in Alcuisar, supra. Interestingly in this case, however, even as the Court approved the recommendation for the dismissal of the respondent judge, it sidestepped the issue of the requisite quantum as decreed in Alcuizar, a case decided just four (4) months earlier.64 Instead, it referred to the general rule about administrative proceedings and requisite proof. It held: It is well settled that in administrative proceedings, the complainant has the burden of proving by substantial evidence the allegations in his complaint. Substantial evidence is that amount of relevant evidence that a reasonable mind might accept as adequate to support a conclusion. In the cases at bar, the complainants Ms. Tan and Ms. Villafranca were able to adequately substantiate their allegations. 28. Macias v. Macias, 601University of SCRA 203 (2009)
Santo Tomas Faculty of Civil Law For a time the Court has been saying in some cases that administrative cases against judges65 must
be substantiated by proof beyond reasonable doubt though in some other cases it would refer to mere Bar Review this clarificatory pronouncement: substantial evidence. In Macias, the Court came up with 2010
See also Re: Sexual Harassment Committed by Judge Rexel M. Pacuribot, RTC, Br. 27, Gingoog City, A.M. No. 05-12-757-RTC, 7 March 2006 {Not in the SCRA}, where the Court held that sexual harassment cases against judges are not within the authority of Committees on Decorum and Investigation (CODIs) but instead of the Supreme Court itself pursuant to its power of administrative supervision.
63
64 65
Alcuizar v. Carpio was promulgated on 7 August 2007 while Tan v. Pacuribot was promulgated on 14 December 2007.
In Arnado v. Suarin, 467 SCRA 402 (2005), even had to call for the application of the quantum of proof beyond reasonable doubt A Library Of Liberties vis--vis An Arsenal Of Arms in regard to administrative cases involving judicial employees. Said the Court: Administrative proceedings against judicial employees are by nature, highly penal in character and are to be governed by the rules applicable to criminal cases. The quantum of proof required to support the administrative charges should thus be more substantial and they must be proven beyond reasonable doubt.
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[M]embers of the judiciary are not a class of their own, sui generis, in the field of public service as to require a higher degree of proof for the administrative cases filed against them other than, perhaps, the fact that because of the nature of the responsibility judges have, they are required to live up to a higher standard of integrity, probity and morality. When we dismiss a public officer or employee from his position or office for the commission of a grave offense in connection with his office, we merely require that the complainant prove substantial evidence. When we disbar a disgraceful lawyer, we require that complainant merely prove a clear preponderance of evidence to establish liability. There appears no compelling reason to require a higher degree of proof when we deal with cases filed against judges. 29. Carag v. National Labor Relations Commission, 520 SCRA 28 (2007) Do corporate officers incur personal liability in closures of establishment without the required onemonth notice to the employees? The failure to give notice is not an unlawful act because the law does not define such failure as unlawful. Such failure to give notice is a violation of procedural due process but does not amount to an unlawful or criminal act. Such procedural defect is called illegal dismissal because it fails to comply with mandatory procedural requirements, but it is not illegal in the sense that it constitutes an unlawful or criminal act. So what does the foregoing mean? For a wrongdoing to make a director personally liable for debts of the corporation, the wrongdoing approved or assented to by the director must be a patently unlawful act. Mere failure to comply with the notice requirement of labor laws on company closure or dismissal of employees does not amount to a patently unlawful act. Patently unlawful acts are those declared unlawful by law which imposes penalties for commission of such unlawful acts. There must be a law declaring the act unlawful and penalizing the act. Article 283 of the Labor Code, requiring a one-month prior notice to employees and the Department of Labor and Employment before any permanent closure of a company, does not state that non-compliance with the notice is an unlawful act punishable under the Code. There is no provision in any other Article of the Labor Code declaring failure to give such notice an unlawful act and providing for its penalty. In short, no personal liability. 30. White Light Corporation v. City of Manila, 576 SCRA 416 (2009) Following City of Manila v. Laguio,455 SCRA 308 (2005), in which the Court invalidated an ordinance which provided for the phasing out of motels and similar establishments in the Ermita-Malate are, the Court again rebuffed the City in the latters continuing fight crusade against the practices of motels and similar establishments in offering short time admissions and wash-up rate schemes, a case presenting an instance of balancing between police power and substantive due process. The apparent goal of the Ordinance is to minimize if not eliminate the use of the covered University of Santo Tomas establishments for illicit sex, prostitution, drug use and Law These goals, by themselves, are Faculty of Civil alike. unimpeachable and certainly fall within the ambit of the police power of the State. Yet the desirability of these ends do not sanctify any and all means for their achievement. Those means must align with the Bar Review 2010 Constitution, and our emerging sophisticated analysis of its guarantees to the people. The Bill of Rights stands as a rebuke to the seductive theory of Macchiavelli, and, sometimes even, the political majorities animated by his cynicism. In the process of deciding against the City, the Court gave a lecture on the standards of review: The general test of the validity of an ordinance on substantive due process grounds is best tested when assessed with the evolved footnote 4 test laid down by the U.S. Supreme Court in U.S. v. Carolene Products. Footnote A of the Carolene Products vis--vis An Arsenalthe judiciary would defer to the 4 Library Of Liberties case acknowledged that Of Arms legislature unless there is a discrimination against a discrete and insular minority or infringement of
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a fundamental right. Consequently, two standards of judicial review were established: strict scrutiny for laws dealing with freedom of the mind or restricting the political process, and the rational basis standard of review for economic legislation. A third standard, denominated as heightened or immediate scrutiny, was later adopted by the U.S. Supreme Court for evaluating classifications based on gender and legitimacy. . . . While the test may have first been articulated in equal protection analysis, it has in the United States since been applied in all substantive due process cases as well. Further expounding, the Court said: In terms of judicial review of statutes or ordinances, strict scrutiny refers to the standard for determining the quality and the amount of governmental interest brought to justify the regulation of fundamental freedoms. Strict scrutiny is used today to test the validity of laws dealing with the regulation of speech, gender, or race as well as other fundamental rights as expansion from its earlier applications to equal protection. The United States Supreme Court has expanded the scope of strict scrutiny to protect fundamental rights such as suffrage, judicial access and interstate travel. Then, after noting that [t]he rights at stake herein fall within the same fundamental rights to liberty which we upheld in City of Manila v. Hon. Laguio, Jr., the Court proceeded to hold that the Ordinance prevents the lawful uses of a wash rate depriving patrons of a product and the petitioners of lucrative business ties in with another constitutional requisite for the legitimacy of the Ordinance as a police power measure. It must appear that the interests of the public generally, as distinguished from those of a particular class, require an interference with private rights and the means must be reasonably necessary for the accomplishment of the purpose and not unduly oppressive of private rights. It must also be evident that no other alternative for the accomplishment of the purpose less intrusive of private rights can work. More importantly, a reasonable relation must exist between the purposes of the measure and the means employed for its accomplishment, for even under the guise of protecting the public interest, personal rights and those pertaining to private property will not be permitted to be arbitrarily invaded. Lacking a concurrence of these requisites, the police measure shall be struck down as an arbitrary intrusion into private rights. . . . So what does it all lead to? What is the long and short of it? [I]ndividual rights may be adversely affected only to the extent that may fairly be required by the legitimate demands of public interest or public welfare. The State is a leviathan that must be restrained from needlessly intruding into the lives of its citizens. However well-intentioned the Ordinance may be, it is in effect an arbitrary and whimsical intrusion into the rights of the establishments as well as their patrons. The Ordinance needlessly restrains the operation of the businesses of the petitioners as well as restricting the rights of their patrons without sufficient justification. The Ordinance rashly equates wash rates and renting out a room more than twice a day with immorality without accommodating innocuous intentions. 31. David v. Macapagal-Arroyo, 489 SCRA 160 (2006) University of Santo In this case, the Court doctrines. And Justice Tinga reiterated his disagreement.
Tomas Faculty of Civil Law majority iterated its pronouncements about Bar Review 2010
overbreadth and vagueness
Said the Court: Related to the overbreadth doctrine is the void for vagueness doctrine which holds that a law is facially invalid if men of common intelligence must necessarily guess at its meaning and differ as to its application. It is subject to the same principles governing overbreadth doctrine. For one, it is also an analytical tool for testing on their faces statutes in free speech cases. And like overbreadth, it is said that a litigant may challenge a statute on its face only if it is vague in all its possible applications. 32. Romualdez A Library Of Liberties vis--vis An 370 (2008) Arms v. Commission on Elections, 553 SCRA Arsenal Of
The debate on the void-for-vagueness doctrine that inspired Justice Tinga to write a spirited dissent
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in Romualdez v. Sandiganbayan, 435 SCRA 371 (2004), was continued here. In that earlier case, Justice Tinga was all by his lonesome in carrying on the argument that the doctrine is a mandate of the due process clause and not something that is specific for free speech cases. In this new Romualdez case, he was joined by the Chief Justice and Justices Austria-Martinez, Carpio Morales, and, Nachura. Justice Carpio himself came up with a separate dissenting opinion, on the same side as Justice Tingas. In this case, the Romualdez spouses were charged with violating 45(j) of R.A. No. 8189, in relation to 10(g) and (j) which specify certain things to be indicated in the application for voter registration they were charged with having failed to state the period of residence in the Philippines and in place of registration (required under 10(g)), and, falsely stating that they are not registered voters in any other precinct (10(j)). The basic question here is whether one could really make sense of 45(j) which includes as an election offense [v]iolation of any of the provisions of this Act. Petitioners submit that Section 45(j) of R.A. No. 8189 makes no reference to a definite provision of the law the violation of which would constitute an election offense. The majority said it was not a problem. And, in response to the invocation of the void-for-vagueness doctrine, the Court held: The void-for-vagueness doctrine holds that a law is facially invalid if men of common intelligence must necessarily guess at its meaning and differ as to its application. However, this Court has imposed certain limitations by which a criminal statute, as in the challenged law at bar, may be scrutinized. This Court has declared that facial invalidation or an on-its-face invalidation of criminal statutes is not appropriate. Any test to apply? Yes, 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. This Court has similarly stressed that the vagueness doctrine merely requires a reasonable degree of certainty for the statute to be upheld not absolute precision or mathematical exactitude. As structured, Section 45 of Republic Act No. 8189 makes a recital of election offenses under the same Act. Section 45(j) is, without doubt, crystal in its specification that a violation of any of the provisions of Republic Act No. 8189 is an election offense. The language of Section 45(j) is precise. The challenged provision renders itself to no other interpretation. A reading of the challenged provision involves no guesswork. We do not see herein an uncertainty that makes the same vague. Notably, herein petitioners do not cite a word in the challenged provision, the import or meaning of which they do not understand. Justice Carpio, dissenting, said in essence that [t]he due process clause, which guarantees that no person shall be deprived of life, liberty or property without due process of law, requires that citizens are given sufficient notice or warning of what is lawful and unlawful conduct under a penal statute. To enforce this guarantee, courts have developed the void for vagueness doctrine. The void for vagueness University of Santo Tomas doctrine expresses the rule that for an act to constitute a crime, the law must expressly and clearly Faculty of Civil Law declare such act a crime. A related doctrine is that penal statutes are construed strictly against the state and liberally in favor of the accused. Then, he spoke of tests to determine constitutionality of the provision in issue. The threshold issueBar Review 2010 Section 45(j) now turns on three tests: on the constitutionality of First, does Section 45(j) give fair notice or warning to ordinary citizens as to what is criminal conduct and what is lawful conduct? Put differently, is Section 45(j) so vague that ordinary citizens must necessarily guess as to its meaning and differ as to its application? Second, is Section 45(j) so vague that it prescribes no ascertainable standard of guilt to guide courts in judging those charged of its violation? Third, is Section 45(j) so vague that law enforcers the police and prosecutors can arbitrarily or selectively enforce it? In fine, the ordinary citizen has no way of knowing which provisions of RA No. A Library Of Liberties vis--vis An copy of RA Arms 8189 are covered by Section 45(j) even if he has before him aArsenal OfNo. 8189. Then, for good measure, he added: Even Judges and Justices will differ as to which provisions of RA No. 8189 fall
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under Section 45(j). He concluded: To punish as crimes acts not expressly declared unlawful or prohibited by law violates the Bill of Rights. . . . Due process requires that the law expressly declares unlawful, and punishes as such, the act for which the accused is held criminally liable. The void for vagueness doctrine is aimed precisely to enforce this fundamental constitutional right A blanket and unconditional declaration that any violation of an elaborate and detailed law is a crime is too imprecise and indefinite, and fails to define with certitude and clarity what acts the law punishes as crimes. Justice Tinga reprised his points in the earlier Romualdez case and rued about lost opportunities: This case presented itself with an alluring promise the rare opportunity to declare a penal provision unconstitutional and void for vagueness, in the process obliterating the impression, spawned by recent pronouncements of the Court based on an erroneous reading of applicable American jurisprudence, that such a denouement would not unfold in this jurisdiction. Quite lamentably, the majority prevented the promise from blossoming to fruition, perpetuating instead a grievous doctrinal error which is already the subject of strenuous criticism within the legal academe. In brief, his point is this: A vague criminal statute at its core violates due process, as it deprives fair notice and standards to all the citizens, the law enforcement officers, prosecutors and judges. He also expounded on the three concerns animating the vagueness doctrine. First, courts are rightly concerned that citizens be fairly warned of what behavior is being outlawed; second, courts are concerned because vague laws provide opportunities for arbitrary enforcement and put the enforcement decisions in the hands of police officers and prosecutors instead of legislatures; finally, where vague statutes regulate behavior that is even close to constitutionally protected, courts fear a chilling effect will impinge on constitutional rights. On pronouncements which may have more repercussions than anticipated, Justice Tinga said, What we have thus seen is the queer instance of obiter in a latter case, Romualdez v. Sandiganbayan, making a doctrine of an obiter in an earlier case, Estrada v. Desierto. Moreover, the controversial statement in Romualdez, as adopted from Estrada with respect to the vagueness challenge being applicable only to free speech cases, is simply not reflective of the American jurisprudential rule which birthed the vagueness doctrine in the first place. And, on the state of Philippine jurisprudence itself, seen in the perspective of time, he observed: We cannot deny the fact that the void-for-vagueness constitutional challenge, as with some other standards of constitutional adjudication, had not yet found full fruition within our own jurisprudence at the time Gatchalian was decided in 1958, a year when the oldest members of the Court were still studying in law school, and the youngest among us still in short pants. 33. Perez v. Sandiganbayan, 503 SCRA 252 (2006) The Special Prosecutor cannot act on his own Santo Tomas of an Amended Information University of and direct the filing without the Ombudsmans go-ahead signal. To do so Civilbe violative of the guarantee of due process. Faculty of would Law After a motion for reinvestigation in regard to a charge for violation of 3(e) of R.A. No. 3019 was Bar Review 2010 granted by the Sandiganbayan, the Office of the Special Prosecutor conducted the same which resulted in a recommendation for the withdrawal of the Information. The Ombudsman deferred action, however and directed further study to determine whether, assuming there was no overprice in the computer procured by the accused, they gave unwarranted benefits, advantage or preference to the seller, with instructions to submit recommendation soonest. Subsequent recommendation was for amendment rather than withdrawal of the Information. The Special Prosecutor approved the same and the corresponding Amended Information was filed before the Sandiganbayan. A Library Of Liberties vis--vis An Arsenal Of Arms In response to the argument of the accused that the filing of the Amended Information is premature and violative of due process since the Ombudsman has not approved it, the People countered that
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compliance with the specific instructions of the Ombudsman is merely an internal matter. The Court said no, it is not. The marginal notes of Ombudsmen to the recommendations of investigating prosecutors are hardly internal matters. It must be remembered that the delegation of the power to authorize the filing of informations under Office Order No. 40-05 was only made to Deputy Ombudsmen, and not to the Special Prosecutor. Moreover, under R.A. No. 6770, 4, the Office of the Special Prosecutor is under the supervision and control of the Ombudsman. Accordingly, when the law entails a specific procedure to be followed, unwarranted shortcuts lead to the violation of the sacred right to due process, which we cannot countenance. As an aside, the Court also said that the Doctrine of Qualified Political Agency has no application in the Office of the Ombudsman, and explained it in this wise: While we do not underestimate the quantity of work in the hands of the Office of the Ombudsman, the same simply does not measure up to the workload of the Office of the President as to necessitate having the Special Prosecutor as an alter ego of the Ombudsman. In any case, the Office of the Ombudsman could very well make a general delegation of powers to the Special Prosecutor, if it is so desired. 34. Securities and Exchange Commission v. GMA Network, Inc., 575 SCRA 113 (2008) Exorbitant and unreasonable filing fees violate due process. A filing fee, by legal definition, is that charged by a public official to accept a document for processing. The fee should be just, fair, and proportionate to the service for which the fee is being collected, . . . And, in this regard, the due process clause permits the courts to determine whether the regulation imposing such fees is reasonable and within the bounds of its rate-fixing authority and to strike it down when it arbitrarily infringes on a persons right to property.
D. EQUAL PROTECTION
The guarantee of equal protection is no argument for absolute equality, for what it only assures is legal equality. It would hardly be fair nor just that people who are not equally circumstanced be given the same treatment, otherwise, it would be as offensive to the notion as the very idea of unequal treatment among equals. Inherent therefore in the application of the Equal Protection Clause is the need for valid classifications so as to determine who or what could properly be grouped together for particular treatment, and excluding all others. In this regard, the classification must be related to the very purpose of the law and that there should be substantial distinctions which make for real differences. Gender may be relevant in regard to certain classifications butof Santo Tomas University not in others. Age, legitimacy, academic performance, courses of study, office and status, and otherof Civil classification may make for some valid Faculty bases for Law differences at times, but not so in other circumstances and climes, and so on.
Bar Review 2010

1. Mirasol v. Department of Public Works and Highways, 490 SCRA 318 (2006) Its not only individuals who are not created equal. The things they use are likewise of various kinds. To begin with, classification by itself is not prohibited, intoned the Court. But a motorized vehicle is just like any other motorized conveyance, correct? Wrong! The Court explained: We find that it is neither warranted nor reasonable for petitioners to say that the only justifiable classification among modes of transport A the motorizedLiberties vis--vis An Arsenalmotorized vehicles are created is Library Of against the non-motorized. Not all Of Arms equal. A 16-wheeler truck is substantially different from other light vehicles. The first may be denied access to some roads where the latter are free to drive. Old vehicles may be reasonably differentiated
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from newer models. We find that 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. Amongst all types of motorized transport, it is obvious, even to a child, that a motorcycle is quite different from a car, a bus or a truck. The most obvious and troubling difference would be that a twowheeled vehicle is less stable and more easily overturned than a four-wheeled vehicle. A classification based on practical convenience and common knowledge is not unconstitutional simply because it may lack purely theoretical or scientific uniformity. Moreover, we take note that the Philippines is home to a host of unique motorized modes of transport ranging from modified hand-carts (kuliglig) to bicycle sidecars outfitted with a motor. To follow petitioners argument to its logical conclusion would open up toll ways to all these contraptions. Both safety and traffic considerations militate against any ruling that would bring about such a nightmare. Consider yourself not just anyone. While you are like your fellow examinees, you are still different from everyone else. And if youre good enough, you may even end up as a class by yourself.66 2. Pimentel III v. Commission on Elections En Banc Sitting as the National Board of Canvassers, 548 SCRA 169 (2008) Would there be violation of the equal protection clause if a candidate is not allowed to question the election officials involved in the canvass proceedings in one province even as he is allowed to do so for other provinces or districts? The Court said no. The point of reference should be whether other candidates are allowed to do so and yet he is not such that he may validly complain of others being given undue favor, while he is the only one unjustly discriminated against. 3. Santos v. People, 563 SCRA 341 (2008) If a tax evasion charge against one show business personality (Regine Velasquez) is dismissed, should a similar charge against another show business personality (Judy Anne Santos) be dismissed, too? Of course, not! The equal protection clause exists to prevent undue favor or privilege. It is intended to eliminate discrimination and oppression based on inequality. Recognizing the existence of real differences among men, the equal protection clause does not demand absolute equality. It merely requires that all persons shall be treated alike, under like circumstances and conditions, both as to the privileges conferred and liabilities enforced. Here, the Court said that the petitioner was not able to duly establish to the satisfaction of this Court that she and Velasquez were indeed similarly situated, i.e., that they committed identical acts for which they were charged with the violation of the same provisions of the NIRC, and University of Santo Tomas that they presented similar arguments and evidence in their defense yet, they were treated differently. Furthermore, that the Prosecution Attorney dismissed what were supposedly similar charges against Velasquez did not compel Prosecution Bar Review 2010 the same way on the charges against Attorney Torrevillas to rule petitioner. In People v. Dela Piedra, this Court explained that: The prosecution of one guilty person while others equally guilty are not prosecuted, however, is not, by itself, a denial of the equal protection of the laws. Where the official action purports to be in conformity to the statutory classification, an erroneous or mistaken performance of the statutory duty, although a violation of the statute, is not without more a denial of the equal protection of the laws. The unlawful administration by officers of a statute fair on its face, resulting in its unequal application to those who are entitled to be treated alike, is not a denial of equal protection unless there is shown toAn present in it an element of intentional or A Library Of Liberties vis--vis be Arsenal Of Arms
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See Nixon v. Administrator of General Services, 433 U.S. 425 (1977)
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purposeful discrimination. In fine, While all persons accused of crime are to be treated on a basis of equality before the law, it does not follow that they are to be protected in the commission of crime. It would be unconscionable, for instance, to excuse a defendant guilty of murder because others have murdered with impunity. The remedy for unequal enforcement of the law in such instances does not lie in the exoneration of the guilty at the expense of society * * *. Protection of the law will be extended to all persons equally in the pursuit of their lawful occupations, but no person has the right to demand protection of the law in the commission of a crime.67 4. Nicolas v. Romulo, 578 SCRA 438 (2009) If foreign troops charged with the commission of crimes in the country are treated differently from other persons similarly charged, is there violation of the equal protection clause? Here, the petitioners argue that to allow the transfer of custody of an accused foreign soldier to a foreign power is to provide for a different rule of procedure for that accused. The Court said there is no violation of the equal protection clause because there is a substantial basis for a different treatment of a member of a foreign military armed forces allowed to enter our territory and all other accused. The rule in international law is that a foreign armed forces allowed to enter ones territory is immune from local jurisdiction, except to the extent agreed upon. The Status of Forces Agreements involving foreign military units around the world vary in terms and conditions, according to the situation of the parties involved, and reflect their bargaining power. But the principle remains, i.e., the receiving State can exercise jurisdiction over the forces of the sending State only to the extent agreed upon by the parties. 5. Serrano v. Gallant Maritime Services, Inc., 582 SCRA 254 (2009) At issue here is the constitutionality of the last clause of the 5th paragraph of 10 R.A. No. 8042 (Migrant Workers and Overseas Filipinos Act of 199). The 5th paragraph provides: In case of termination of overseas employment without just, valid or authorized cause as defined by law or contract, the workers shall be entitled to the full reimbursement of his placement fee with interest of twelve percent (12%) per annum, plus his salaries for the unexpired portion of his employment contract or for three (3) months for every year of the unexpired term, whichever is less. The claim is made that it violates the guarantee of equal protection since it is based on an invalid distinction between OFW s with contracts having a period longer than a year and OFWs with contracts having a period less than one year. The Court agreed and declared that particular clause unconstitutional. The Court noted that [t]he enactment of the subject clause in R.A. No. 8042 introduced a differentiated rule of computation of the money claims of illegally dismissed OFWs based on their University of Santo Tomas employment periods, in the process singling out one category whose contracts have an unexpired portion Faculty of Civil Law of one year or more and subjecting them to the peculiar disadvantage of having their monetary awards limited to their salaries for 3 months or for the unexpired2010 thereof, whichever is less, but all the Bar Review portion while sparing the other category from such prejudice, simply because the latters unexpired contracts fall short of one year. The Court further observed that the subject clause creates a sub-layer of discrimination among OFWs whose contract periods are for more than one year: those who are illegally dismissed with less than one year left in their contracts shall be entitled to their salaries for the entire unexpired portion thereof, while those who are illegally dismissed with one year or more remaining in
Earlier, in Reyes v. Pearlbank Securities, Inc., 560 SCRA 518 (2008), the Court held: While Arms to equal protection of the A Library Of Liberties vis--vis An Arsenal Of the right law requires that litigants are treated in an equal manner by giving them the same rights under similar circumstances, it may not be perversely used to justify desistance by the authorities from prosecution of a criminal case, just because not all of those who are probably guilty thereof were charged.
67
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their contracts shall be covered by the subject clause, and their monetary benefits limited to their salaries for three months only. It further noted that prior to R.A. No. 8042, OFWs and local workers with fixed-term employment who were illegally discharged were treated alike in terms of the computation of their money claims: they were uniformly entitled to their salaries for the entire unexpired portions of their contracts. From there, the Court went on to hold: The Court concludes that the subject clause contains a suspect classification in that, in the computation of the monetary benefits of fixed-term employees who are illegally discharged, it imposes a 3-month cap on the claim of OFWs with an unexpired portion of one year or more in their contracts, but none on the claims of other OFWs or local workers with fixed-term employment. The subject clause singles out one classification of OFWs and burdens it with a peculiar disadvantage. There being a suspect classification involving a vulnerable sector protected by the Constitution, the Court now subjects the classification to a strict judicial scrutiny, and determines whether it serves a compelling state interest through the least restrictive means. So, is there any compelling state interest? Assuming that, as advanced by the OSG, the purpose of the subject clause is to protect the employment of OFWs by mitigating the solidary liability of placement agencies, such callous and cavalier rationale will have to be rejected. There can never be a justification for any form of government action that alleviates the burden of one sector, but imposes the same burden on another sector, especially when the favored sector is composed of private businesses such as placement agencies, while the disadvantaged sector is composed of OFWs whose protection no less than the Constitution commands. The idea that private business interest can be elevated to the level of a compelling state interest is odious. In this case also, we are again regaled with an enlivening discourse on the standards of review. There are three levels of scrutiny at which the Court reviews the constitutionality of a classification embodied in a law: a) the deferential or rational basis scrutiny in which the challenged classification needs only be shown to be rationally related to serving a legitimate state interest; b) the middle-tier or intermediate scrutiny in which the government must show that the challenged classification serves an important state interest and that the classification is at least substantially related to serving that interest; and c) strict judicial scrutiny in which a legislative classification which impermissibly interferes with the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect class is presumed unconstitutional, and the burden is upon the government to prove that the classification is necessary to achieve a compelling state interest and that it is the least restrictive means to protect such interest. Under American jurisprudence, strict judicial scrutiny is triggered by suspect classifications based on race or gender but not when the classification is drawn along income categories. It is different in the Philippine setting. . . . Admittedly, the view that Tomas to persons accorded special University of Santo prejudice protection by the Constitution requires a stricter judicial scrutiny finds no support in American or Faculty of Civil Law English jurisprudence. Nevertheless, these foreign decisions and authorities are not per se controlling in this jurisdiction. At best, they are persuasive and have2010used to support many of our decisions. Bar Review been We should not place undue and fawning reliance upon them and regard them as indispensable mental crutches without which we cannot come to our own decisions through the employment of our own endowments. . . . But if the challenge to the statute is premised on the denial of a fundamental right, or the perpetuation of prejudice against persons favored by the Constitution with special protection, judicial scrutiny ought to be more strict. A weak and watered down view would call for the abdication of this Courts solemn duty to strike down any law repugnant to the Constitution and the rights it enshrines. . . . From Library Of Liberties vis--vis An Arsenal Of Arms A there, the Court concluded: Imbued with the same sense of obligation to afford protection to labor, the Court in the present case also employs the standard of strict judicial scrutiny, for it perceives in the subject clause a suspect classification prejudicial to OFWs. In other words, when
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the challenge to a statute is premised on the perpetuation of prejudice against persons favored by the Constitution with special protection such as the working class or a section thereof the Court may recognize the existence of a suspect classification and subject the same to strict judicial scrutiny. 6. League of Cities of the Philippines (LCP) v. Commission on Elections, 571 SCRA 263 (2008) and SCRA (G.R. No. 176951, 21 December 2009) When the 11th Congress68 adjourned in June 2001, there were on deck bills to convert 24 municipalities into cities but which were never enacted into law. In the meantime, R.A. 9009 wsas enancted, which became effective on 30 June 2001.This law amended the Local Government Code by increasing the annual income requirement for conversion of municipalities to cities from P20 Million = to P100 Million. After the effectivity of RA 9009, the House of Representatives of the 12th Congress = adopted Joint Resolution No. 29, which sought to exempt from the P100 million income requirement = in RA 9009 the 24 municipalities whose cityhood bills were not approved in the 11th Congress. However, the 12th69 Congress ended without the Senate approving Joint Resolution No. 29. During the 13th Congress,70 the House of Representatives re-adopted Joint Resolution No. 29 as Joint Resolution No. 1 and forwarded it to the Senate for approval. However, the Senate again failed to approve the Joint Resolution. Following the advice of Senator Aquilino Pimentel, 16 municipalities filed, through their respective sponsors, individual cityhood bills. The 16 cityhood bills contained a common provision exempting all the 16 municipalities from the P100 million income requirement in RA 9009. Both Houses = of Congress approved the cityhood bills, which bills lapsed into law (Cityhood Laws) on various dates from March to July 2007 without the Presidents signature. In questioning the validity of their enactment, the issue is raised that there is violation of the Equal Protection Clause. How valid is the argument? The Court said the Equal Protection Clause was violated. An exemption based solely on the fact that the 16 municipalities had cityhood bills pending in the 11th Congress when RA 9009 was enacted does not constitute a valid classification between those entitled and those not entitled to exemption from the P100 million income requirement. To be valid, the classification in the present case = must be based on substantial distinctions, rationally related to a legitimate government objective which is the purpose of the law, not limited to existing conditions only, and applicable to all similarly situated. There is no substantial distinction between municipalities with pending cityhood bills in the 11th Congress and municipalities that did not have pending bills. The mere pendency of a cityhood bill in the 11th Congress is not a material difference to distinguish one municipality from another for the purpose of the income requirement. The classification criterion mere pendency of a cityhood bill in the 11th Congress is not rationally related to the purpose of the law which is to prevent fiscally non-viable municipalities from converting into cities. The fact of pendency of a cityhood bill in of Civil Law limits the exemption to a specific Faculty the 11th Congress condition existing at the time of passage of RA 9009, which specific condition will never happen again. This violates the requirement that a valid classification must not be limited to existing conditions only. Bar Review 2010 The exemption provision in the Cityhood Laws gives the 16 municipalities a unique advantage based on an arbitrary date the filing of their cityhood bills before the end of the 11th Congress as against all other municipalities that want to convert into cities after the effectivity of RA 9009. Furthermore, limiting the exemption only to the 16 municipalities violates the requirement that the classification must apply to all similarly situated.
68 69 70
June 1998 to JuneA Library 2001. June 2001 to June 2004. June 2004 to June 2007.
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Subsequently, when the Court reconsidered its earlier ruling, it held, among others, on equal protection issue, that: The equal protection guarantee is embraced in the broader and elastic concept of due process, every unfair discrimination being an offense against the requirements of justice and fair play. It has nonetheless come as a separate clause in Sec. 1, Art. III of the Constitution to provide for a more specific protection against any undue discrimination or antagonism from government. Arbitrariness in general may be assailed on the basis of the due process clause. But if a particular challenged act partakes of an unwarranted partiality or prejudice, the sharper weapon to cut it down is the equal protection clause. The Court also noted that this particular constitutional protection extends likewise to natural or artificial persons, but in so far are artificial persons are concerned, they are entitled to protection only insofar as their property is concerned. Accordingly, the petitioner LCP and the intervenors cannot plausibly invoke the equal protection clause, precisely because no deprivation of property results by virtue of the enactment of the cityhood laws. The LCPs claim that the IRA of its member-cities will be substantially reduced on account of the conversion into cities of the respondent LGUs would not suffice to bring it within the ambit of the constitutional guarantee. Indeed, it is presumptuous on the part of the LCP member-cities to already stake a claim on the IRA, as if it were their property, as the IRA is yet to be allocated. For the same reason, the municipalities that are not covered by the uniform exemption clause in the cityhood laws cannot validly invoke constitutional protection. For, at this point, the conversion of a municipality into a city will only affect its status as a political unit, but not its property as such. On the requisites for valid classification,71 the Court found that all of them were met. The favorable treatment accorded the sixteen (16) municipalities by the cityhood laws rests on substantial distinction. Indeed, respondent LGUs, which are subjected only to the erstwhile PhP 20 million income criterion instead of the stringent income requirement prescribed in RA 9009, are substantially different from other municipalities desirous to be cities. Looking back, we note that respondent LGUs had pending cityhood bills before the passage of RA 9009. There lies part of the tipping difference. They were qualified cityhood applicants before the enactment of RA 009 but because of events they had absolutely nothing to do with, a spoiler in the form of RA 9009 supervened. Thus, to impose on them the much higher income requirement after what they have gone through would appear to be indeed unfair. The peculiar conditions of respondent LGUs provide sufficient grounds for legislative classification. A law can be violative of the constitutional limitation only when the classification is without reasonable basis. The Court also found the classification to be germane to the purpose of the law. The exemption of respondent LGUs/municipalities from the P100 million income requirement was meant to reduce the = inequality occasioned by the Universityamendatory RA 9009. From another perspective, the passage of the of Santo Tomas Faculty of Civil Law exemption was unquestionably designed to insure that fairness and justice would be accorded respondent LGUs. What were then the cityhood bills covering respondent LGUs were part and parcel of the original Bar Review became 57 conversion bills filed in the 11th Congress, 33 of those2010 laws before the adjournment of that Congress. The then bills of the challenged cityhood laws were not acted upon due, inter alia, to the impeachment of then President Estrada, the related jueteng scandal investigations conducted before, and the EDSA events that followed the aborted impeachment. The enactment of the cityhood laws was in a real sense an attempt on the part of Congress to address the inequity dealt the respondent LGUs. These laws positively promoted the equality and eliminated the inequality, doubtless unintended, between respondent municipalities and the thirty-three (33) other municipalities whose cityhood bills were A Library Of Liberties vis--vis An Arsenal Of Arms
Classification, to be reasonable, must (1) rest on substantial distinctions; (2) be germane to the purpose of the law; (3) not be limited to existing conditions only; and (4) apply equally to all members of the same class.
71
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enacted during the 11th Congress. And in this regard, the Court noted that to deny respondent LGUs/municipalities the same rights and privileges accorded to the 33 other municipalities when, at the outset they were similarly situated, is tantamount to denying the former the protective mantle of the equal protection clause. In effect, petitioners and petitioners-in-intervention are creating an absurd situation in which an alleged violation of the equal protection clause of the Constitution is remedied by another violation of the same clause. The irony is not lost to the Court. With regard to alleged applicability to existing conditions only, the Court said it is not so. Then too the non-retroactive effect of RA 9009 is not limited in application only to conditions existing at the time of its enactment. It is intended to apply for all time, as long as the contemplated conditions obtain. To be more precise, the legislative intent underlying the enactment of RA 9009 to exclude would-be-cities from the P100 million criterion would hold sway, as long as the corresponding cityhood bill has been = filed before the effectivity of RA 9009 and the concerned municipality qualifies for conversion into a city under the original version of Sec. 450 of the LGC of 1991. Viewed in its proper light, the common exemption clause in the cityhood laws is an application of the non-retroactive effect of RA 9009 on the cityhood bills. It is not a declaration of certain rights, but a mere declaration of prior qualification and/or compliance with the non-retroactive effect of RA 9009. In fine, the uniform exemption clause would apply to municipalities that had pending cityhood bills before the passage of RA 9009 and were compliant with then Sec. 450 of the LGC of 1991, which prescribed an income requirement of P20 = million. It is hard to imagine, however, if there are still municipalities out there belonging in context to the same class as the sixteen (16) respondent LGUs. Municipalities that cannot claim to belong to the same class as the 16 cannot seek refuge in the cityhood laws. 7. Quinto v. Commission on Elections, SCRA (G.R. No. 189698, 1 December 2009, and Resolution dated 22 February 2010) Here the issue is about the alleged discrimination against appointive officials and employees in regard to the effect of the filing of their Certificates of Candidacy (CoCs) they are deemed immediately resigned while elective officials are not so treated. The Court said: In considering persons holding appointive positions as ipso facto resigned from their posts upon the filing of their CoCs, but not considering as resigned all other civil servants, specifically the elective ones, the law unduly discriminates against the first class. The fact alone that there is substantial distinction between those who hold appointive positions and those occupying elective posts, does not justify such differential treatment. It then proceeded to declare that the classification is not germane to the purpose of the law. The obvious reason for the challenged provision is to prevent the use of a governmental position to promote ones candidacy, or even to wield a dangerous or coercive influence on the electorate. The University of Santo Tomas measure is further aimed at promoting the efficiency, integrity, and discipline of the public service by Faculty of Civil Law eliminating the danger that the discharge of official duty would be motivated by political considerations rather than the welfare of the public. The restriction is also justified by the proposition that the entry of Bar Review 2010 civil servants to the electoral arena, while still in office, could result in neglect or inefficiency in the performance of duty because they would be attending to their campaign rather than to their office work. If we accept these as the underlying objectives of the law, then the assailed provision cannot be constitutionally rescued on the ground of valid classification. Glaringly absent is the requisite that the classification must be germane to the purposes of the law. Indeed, whether one holds an appointive office or an elective one, the evils sought to be prevented by the measure remain. . . . As to the danger of neglect, inefficiency or partisanship in the discharge of the functions of Arms A Library Of Liberties vis--vis An Arsenal Of his appointive office, the inverse could be just as true and compelling. The public officer who files his certificate of candidacy would be driven by a greater impetus for excellent performance to show his fitness for the position
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aspired for. On motion for reconsideration, the Supreme Court reversed itself and said that the classification is germane to the purpose of the law. The Court made reference to the long-standing rule that to remedy an injustice, the Legislature need not address every manifestation of the evil at once; it may proceed one step at a time. In addressing a societal concern, it must invariably draw lines and make choices, thereby creating some inequity as to those included or excluded. Nevertheless, as long as the bounds of reasonable choice are not exceeded, the courts must defer to the legislative judgment. We may not strike down a law merely because the legislative aim would have been more fully achieved by expanding the class. Stated differently, the fact that a legislative classification, by itself, is underinclusive will not render it unconstitutionally arbitrary or invidious. There is no constitutional requirement that regulation must reach each and every class to which it might be applied; that the Legislature must be held rigidly to the choice of regulating all or none. In fine, the assailed Decision would have us equalize the playing field by invalidating provisions of law that seek to restrain the evils from running riot.
E. SEARCHES AND SEIZURES

A citizen in a democratic and republican state, where sovereignty resides in the people and all government authority emanates from them, may consider it his birthright to be free from unwarranted and unreasonable intrusions into his life. He would not want to have a Big Brother looking over his shoulders and minding his affairs. The guarantee against unreasonable searches and seizures upholds that expectation of privacy. And, for starters, it requires that before any searches or seizures be had, the same must be, as a general rule, accompanied by a warrant, issued by one who is disinterested and detached from the task of law enforcement. But even in the issuance of such warrants by a judge, the magistrate is not that free to simply issue it for no reason at all or on flimsy grounds. He must have probable cause for the same, which he must determine personally by carefully examining the complainant, his witnesses and other supporting documents for such purpose. Further, reasonableness also goes to the manner of serving and executing it. Accordingly, not because one is armed with a warrant that he would now have the perfect right to simply barge into houses or dwellings like the gestapo. He must abide by the knock and announce procedure.72 As much as possible, he must still do it in a civilized manner, unless his life or safety may be in danger, or the evidence would likely be destroyed by any delay. The requirement of a search warrant being a general rule, it necessarily follows that some exceptions Faculty of Civil Law would have to be accommodated, exceptions which are better understood when seen in the context in which they developed, such as search incident to a lawful arrest, search of moving vehicles, the plain Bar Review 2010 view doctrine, and, lately, airport searches. In regard to warrantless arrests, there are the in flagrante delicto, hot pursuit and escaped-prisoners exceptions. But in considering the things and circumstances relative to the question of whether a search or seizure was in accordance with the Constitution, one must always remember that the touchstone is reasonableness.73 And that is not something cast in rigid and inflexible forms and shapes. [T]he Fourth
72 73
See People v. Go, 411 SCRA 81 (2003)
[B]ecause the ultimate touchstone of the Fourth Amendment is reasonableness, the warrant requirement is subject to certain exceptions. (Brigham City v. Stuart, 547 U.S. 398 [2006])
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Amendment74 does not insist upon bright-line rules. Rather, it recognizes that no single set of legal rules can capture the ever changing complexity of human life.75 It has also been stated that a search warrant proceeding is, in no sense, a criminal action or the commencement of a prosecution. The proceeding is not one against any person, but is solely for the discovery and to get possession of personal property. It is a special and peculiar remedy, drastic in nature, and made necessary because of public necessity. It resembles in some respect what is commonly known as John Doe proceedings. Further, private complainants can participate in these proceedings they may appear, participate and file pleadings in said proceedings to maintain, inter alia, the validity of the search warrant issued by the court and the admissibility of the properties seized in anticipation of a criminal case to be filed. As for the search warrant itself, the Court said that it is a legal process which has been likened to a writ of discovery employed by the State to procure relevant evidence of crime. It is in the nature of a criminal process, restricted to cases of public prosecutions. A search warrant is a police weapon, issued under the police power.76 1. Bayaca v. Ramos, 577 SCRA 93 (2009) In Talingdan v. Eduarte, 366 SCRA 559 (2001), the judge was found administratively liable for having improvidently issued a warrant as a consequence of letting his criminal docket clerk practically determine the existence of probable cause through the expedient of a checklist. In Bayaga, the judge issued a Warrant of Arrest and Commitment to Final Sentence leading to the incarceration of the convict despite the fact that his earlier decision was modified on appeal, deleting imprisonment as penalty and imposing instead the penalty of fine. In his explanation, he clarified that his issuance of the warrant of arrest was a mistake done in good faith. He added that for almost sixteen (16) years it was the practice in his sala that before acting on a motion it passed through his Clerk of Court who studied the records to determine whether or not to grant it. If it would be granted, the Clerk of Court would then request the stenographer to type the order and thereafter, he would affix his initial for respondent Judges signature. Such was the procedure followed in the instant case and the path taken to that unfortunate mistake. The Court found the judge inexcusably negligent. 2. Yao, Sr. v. People, 525 SCRA 108 (2007) In support of the application for warrants, [t]he applicant or his witnesses must have personal knowledge of the circumstances surrounding the commission of the offense being complained of. Reliable information is insufficient. Mere affidavits are not enough, and the judge must depose in writing the complainant and his witnesses. And, how are we to know what constitutes probable cause? University of Santo Tomas As the term implies, probable cause is concerned with probability, not absolute or even moral Faculty a reasonably prudent certainty. The standards of judgment are those of of Civil Law man, not the exacting calibrations of a judge after a full blown trial. And, would it be fatal to the establishment of probable cause if the persons who conducted the preliminary footwork prior to application for warrant used a fictitious name? The fact that Oblanca and Alajar used different names in the purchase receipts do not negate personal knowledge on their part. It is a common practice of the law enforcers such as NBI agents during covert investigations to use different names in order to conceal their true identities. This is reasonable and understandable so as not to endanger the life of the undercover agents and to facilitate the lawful arrest or apprehension of
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A counterpart Of Liberties vis--vis An Arsenal This is the American Library to Art. III, 2 of the Philippine Constitution.
Justice Breyer, concurring in Georgia v. Randolph, 547 U.S. 103 (2006) United Laboratories, Inc. v. Isip, 461 SCRA 574 (2005)
Of Arms
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suspected violators of the law. Further, [t]here is nothing in the provisions of law concerning the issuance of a search warrant which directly or indirectly mandates that the applicant of the search warrant or his witnesses should state in their affidavits the fact that they used different names while conducting undercover investigations, or to divulge such fact during the preliminary examination. What about searching questions? The searching questions propounded to the applicant and the witnesses depend largely on the discretion of the judge. Although there is no hard-and-fast rule governing how a judge should conduct his investigation, it is axiomatic that the examination must be probing and exhaustive, not merely routinary, general, peripheral, perfunctory or pro forma. The judge must not simply rehash the contents of the affidavit but must make his own inquiry on the intent and justification of the application. How about the particularity of description requirement? The long standing rule is that a description of the place to be searched is sufficient if the officer with the warrant can, with reasonable effort, ascertain and identify the place intended and distinguish it from other places in the community. Any designation or description known to the locality that points out the place to the exclusion of all others, and on inquiry leads the officers unerringly to it, satisfies the constitutional requirement. In addition, a search warrant may be said to particularly describe the things to be seized when the description therein is as specific as the circumstances will ordinarily allow; or when the description expresses a conclusion of fact not of law by which the warrant officer may be guided in making the search and seizure; or when the things described are limited to those which bear direct relation to the offense for which the warrant is being issued. While it is true that the property to be seized under a warrant must be particularly described therein and no other property can be taken thereunder, yet the description is required to be specific only in so far as the circumstances will ordinarily allow. The law does not require that the things to be seized must be described in precise and minute details as to leave no room for doubt on the part of the searching authorities; otherwise it would be virtually impossible for the applicants to obtain a search warrant as they would not know exactly what kind of things they are looking for. Must the property to be seized be owned by the person against whom the warrant is issued? No, not necessarily. The law does not require that the property to be seized should be owned by the person against whom the search warrants is directed. Ownership, therefore, is of no consequence, and it is sufficient that the person against whom the warrant is directed has control or possession of the property sought to be seized. On A.M. No. 02-1-06-SC (Rule on Search and Seizure in Civil Actions For Infringement of Intellectual Property Rights), the Court said that it governs only searches and seizures in civil actions for infringement of intellectual property rights it does not cover criminal violation of Section 155 in University of Santo Tomas relation to Section 170 of RepublicFaculty of Civil Law Act No. 8293. 3. Valeroso v. Court of Appeals, SCRA (G.R. No. 164815, 3 September 2009) In this case, the search purportedly incident to arrest was conducted after the suspect was taken out of his room and then tied his hands. Thereafter, a revolver with live ammunition was allegedly found in a locked cabinet inside the room. Could this qualify as a valid search incident to a lawful arrest? No. The Court explained that when an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapon that the latter might use in order to resist arrest or effect his escape, or for the protection of the officer, as well as to prevent the concealment or destruction of evidence on the A Library Of Liberties vis--vis An Arsenal Of of evidence or dangerous suspects person. [A] valid arrest allows the seizure Arms weapons either on the person of the one arrested or within the area of his immediate control. The
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phrase within the area of his immediate control means the area from within which he might gain possession of a weapon or destructible evidence. The Court said that the cabinet which was locked could no longer be considered as an area within his immediate control because there was no way for him to take any weapon or to destroy any evidence that could be used against him. The Court further added that this exception should not be strained beyond what is needed to serve its purpose. Could the warrantless search be justified under the plain view doctrine? No, not also. The plain view doctrine may not be used to launch unbridled searches and indiscriminate seizures or to extend a general exploratory search made solely to find evidence of defendants guilt. The doctrine is usually applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object. In regard to the plain view doctrine, the Court also had this to say in United Laboratories, Inc. v. Isip:77 The plain view doctrine is not an exception to the warrant. It merely serves to supplement the prior justification whether it be a warrant for another object, hot pursuit, search as an incident to a lawful arrest or some other legitimate reason for being present, unconnected with a search directed against the accused. The doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges. It is a recognition of the fact that when executing police officers come across immediately incriminating evidence not covered by the warrant, they should not be required to close their eyes to it, regardless of whether it is evidence of the crime they are investigating or evidence of some other crime. As for the immediacy requirement, this means that the executing officer can, at the time of discovery of the object or the facts therein available to him, determine probable cause of the objects incriminating evidence to be immediate, probable cause must be the direct result of the officers instantaneous sensory perception of the object. The immediately apparent test does not require an unduly high degree of certainty as to the incriminating character of evidence. As to the requirement of inadvertence, it means that the officer must not have known in advance of the location of the evidence and intended to seize it. Further, the immediately apparent aspect is central to the plain view exception. 4. Sony Computer Entertainment, Inc. v. Bright Future Technologies, Inc., 516 SCRA 62 (2007) Violation of the Two-Witness Rule in searches and seizures results in quashal of the warrant. The two-witness rule governing the execution of search warrant is mandatory to ensure regularity in the execution of the search warrant. Accordingly, the rule is violated where the police were already searching the area when the two (2) barangay tanods who served as witnesses arrived. How about security guards? A security guard may not be considered a lawful occupant or a University of Santo Tomas member of the lawful occupants family underof Civil Law126. Faculty Section 8 of Rule 5. Summerville General Merchandising Co. v. Court of Appeals, 525 SCRA 602 (2007) The Constitution does not provide a blanket prohibition against all searches and seizures rather, the fundamental protection accorded by the search and seizure clause is that, between persons and the police, there must stand the protective authority of a magistrate clothed with the power to issue or refuse such search warrant. The responsibilities of the magistrate do not end with the granting of the warrant, but extends to the custody of the articles seized.
Bar Review 2010
Where there is no allegation that the design and/or mark of a particular brand of playing cards is a A Library Of colorable vis--vis An Arsenal Of Arms reproduction, counterfeit, copy, or Liberties imitation of another registered mark legally owned by
77
461 SCRA 574 (2005)
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another, there is no crime of trademark infringement that appears to have been committed or perpetrated to warrant the inference that aid playing cards are subject of the offense as contemplated by Sec. 4 of Rule 126 of the Rules of Court. The Court also held in this case that, where there is the availability of actual samples, there is no need for the court to take custody of the countless articles seized. There is no law prohibiting the trial court from returning the articles seized before a case is actually filed in court and even before the final determination by the prosecutor or the Department of Justice of whether a case should be filed in court. Also, where the articles seized have already been found not to be the subject of the offense and the purpose of presenting them as evidence is no longer served, there is no justification for severely curtailing the rights of a person to his property. To value the privacy of home and person and to afford its constitutional protection against the long reach of the government are no less than to value human dignity and this privacy must not be disturbed except in the overriding social need, and then only under the stringent procedural rules. 6. Los Angeles County v. Rettele, 550 U.S. 609 (2007) In Wilson v. Layne,526 U.S. 603 (1999), the occupants of the house complained about the police practice known as media ride along where police enter residences serving warrants with the media in tow. In said case the police went in unannounced early one morning, at a time when the two occupants were still in bed. When the husband went down to investigate, he was still in his sleeping attire. Here, in Rettele, it was worse. The policemen surprised the two occupants in bed naked. And then they were not allowed to immediately put on anything as they were made to stand au naturel for about two minutes. Would this constitute an unreasonable manner of conducting a search? In relation to a fraud and identity-theft crime ring investigation, police secured a warrant to search two houses. They were unaware that the suspects four African-Americans had moved out of the house three months earlier and the house had been sold to Rettle who moved in there with his girlfriend and her son all Caucasians. Accordingly, when the police made the search at around 7:15 one morning, they found in a bedroom two residents who were of a different race than the suspects. The deputies ordered these innocent residents, who had been sleeping unclothed, out of bed, and required them to stand for a few minutes before allowing them to dress. The Court held that the search was reasonable under the circumstances. When the deputies ordered respondents from their bed, they had no way of knowing whether the African-American suspects were elsewhere in the house. The presence of some Caucasians in the residence did not eliminate the possibility that the suspects lived there as well. As the deputies stated in their affidavits, it is not uncommon in our society for people of different races to live together. Just as people of different races live and work together, so tooUniversity of in joint criminal activity. The deputies, who were might they engage Santo Tomas searching a house where they believed a suspect might be Law possessed authority to secure the Faculty of Civil armed, premises before deciding whether to continue with the search. Accordingly, [t]he orders by the police to the occupants, in the context of this lawful search, were permissible, and perhaps necessary, to protect Bar Review 2010 the safety of the deputies. Blankets and bedding can conceal a weapon, and one of the suspects was known to own a firearm, factors which underscore this point. The Constitution does not require an officer to ignore the possibility that an armed suspect may sleep with a weapon within reach. Moreover, [t]he deputies needed a moment to secure the room and ensure that other persons were not close by or did not present a danger. In other words, [w]hen officers execute a valid warrant and act in a reasonable manner to protect themselves from harm, however, the Fourth Amendment is not violated.
A Library Of Liberties vis--vis An Arsenal the Bar exams. Be properly attired then when going to sleep and when going to takeOf Arms
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7. United States v. Grubbs, 547 U.S. 90 (2006) In anticipation of examinees passing the Bar exams, certain things might already be being prepared for that great moment. If this could be done with an expected event, could it be done likewise in regard to search warrants? Or, can a warrant be applied for in anticipation of the occurrence of some event which would trigger the justification for the service of the warrant? The U.S. Supreme Court said yes. Because the probable-cause requirement looks to whether evidence will be found when the search is conducted, all warrants are, in a sense, anticipatory. In the typical case where the police seek permission to search a house for an item they believe is already located there, the magistrates determination that there is probable cause for the search amounts to a prediction that the item will still be there when the warrant is executed. Anticipatory warrants are no different in principle from ordinary warrants. They require the magistrate to determine (1) that it is now probable that (2) contraband, evidence of a crime, or a fugitive will be on the described premises (3) when the warrant is executed. It should be noted, however, that where the anticipatory warrant places a condition (other than the mere passage of time) upon its execution, the first of these determinations goes not merely to what will probably be found if the condition is met. (If that were the extent of the probability determination, an anticipatory warrant could be issued for every house in the country, authorizing search and seizure if contraband should be delivered though for any single location there is no likelihood that contraband will be delivered.) Rather, the probability determination for a conditioned anticipatory warrant looks also to the likelihood that the condition will occur, and thus that a proper object of seizure will be on the described premises. In other words, for a conditioned anticipatory warrant to comply with the Fourth Amendments requirement of probable cause, two prerequisites of probability must be satisfied. It must be true not only that if the triggering condition occurs there is a fair probability that contraband or evidence of a crime will be found in a particular place, . . . but also that there is probable cause to believe the triggering condition will occur. 8. People v. Tuazon, 532 SCRA 152 (2007) The police received a confidential information through telephone that a Gemini car with plate number PFC 411 would deliver an unspecified amount of shabu in Marville Subdivision, Antipolo City. Policemen dispatched to conduct a surveillance saw the said Gemini car and immediately flagged it down. When the car window was lowered, one of the policemen saw a gun tucked on Tuazons waist. He was then asked to go down, and the policeman saw five plastic sachets of shabu on the drivers seat, the contents of which Tueazon allegedly admitted to be shabu. Is this a valid moving vehicle search? In the case of People v. Lo Ho Wing, [193 SCRA 122, 128-129 (1991),] this Court had the occasion University of Santo Tomas to elucidate on the rationale for the exemption of searches of moving vehicles from the requirement of search warrant, thus: [T]he rules Facultysearch and seizure have over the years been steadily governing of Civil Law liberalized whenever a moving vehicle is the object of the search on the basis of practicality. This is so Bar Review 2010 considering that before a warrant could be obtained, the place, things and persons to be searched must be described to the satisfaction of the issuing judge a requirement which borders on the impossible in the case of smuggling effected by the use of a moving vehicle that can transport contraband from one place to another with impunity. We might add that a warrantless search of a moving vehicle is justified on the ground that it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.
The Court cautioned, however, Liberties vis--vis An Arsenal Of exception from securing a A Library Of in regard to vehicle searches, that the Arms search warrant when it comes to moving vehicles does not give the police authorities unbridled discretion to conduct a warrantless search of an automobile. To do so would render the aforementioned
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constitutional stipulations inutile and expose the citizenry to indiscriminate police distrust which could amount to outright harassment. Surely, the policy consideration behind the exemption of search of moving vehicles does not encompass such arbitrariness on the part of the police authorities. In recognition of the possible abuse, jurisprudence dictates that at all times, it is required that probable cause exist in order to justify the warrantless search of a vehicle. Accordingly, [w]hen a vehicle is flagged down and subjected to an extensive search, such a warrantless search has been held to be valid as long as the officers conducting the search have reasonable or probable cause to believe prior to the search that they would find the instrumentality or evidence pertaining to a crime, in the vehicle to be searched. Here, the police had such probable cause. 9. People v. Laguio, Jr., 518 SCRA 393 (2007) Following a descriptions made by persons earlier arrested by the police of the supplier of shabu, the police conducted a surveillance in the place indicated and when they saw someone who fitted the given description walking from the apartment to his car they approached him, frisked him and found an unlicensed firearm. A search of his car yielded shabu and another unlicensed firearm. The Court held both the arrest and the search unconstitutional: The facts and circumstances surrounding the present case did not manifest any suspicious behavior on the part of private respondent Lawrence Wang that would reasonably invite the attention of the police. He was merely walking from the Maria Orosa Apartment and was about to enter the parked BMW car when the police operatives arrested him, frisked and searched his person and commanded him to open the compartment of the car, which was later on found to be owned by his friend, David Lee. He was not committing any visible offense then. Therefore, there can be no valid warrantless arrest in flagrante delicto under paragraph (a) of Section 5. It is settled that reliable information alone, absent any overt act indicative of a felonious enterprise in the presence and within the view of the arresting officers, is not sufficient to constitute probable cause that would justify an in flagrante delicto arrest. Neither may the warrantless arrest be justified under paragraph (b) of Section 5. What is clearly established from the testimonies of the arresting officers is that Wang was arrested mainly on the information that he was the employer of Redentor Teck and Joseph Junio who were previously arrested and charged for illegal transport of shabu. Accordingly, the warrantless arrest was illegal. Ipso jure, the warrantless search incidental to the illegal arrest is likewise unlawful. 10. Valdez v. People, 538 SCRA 611 (2007) The sacred right against an arrest, search or seizure without valid warrant is not only ancient. It is also zealously safeguarded. . . University of Santo Tomas . Indeed, while the power to search and seize may at times be necessary to the public welfare, still it must Faculty of Civil Law be exercised and the law implemented without contravening the constitutional rights of the citizens, for the enforcement of no statute is of sufficient importance to justify indifference to the basic principles of government. Bar Review 2010 While conducting routine patrol along the National Highway in Aringay, La Union, one early evening, three barangay tanods noticed Valdez, lugging a bag, alight from a mini-bus. They observed that he appeared suspicious since he seemed to be looking for something. They approached him but the latter purportedly attempted to run away. They gave chase and caught up with him, arrested him and thereafter brought him to the house of the Barangay Captain where he was ordered to open his bag. They then allegedly found dried marijuana leaves. Search and seizure valid? For the exception in Section A Library Of Liberties vis--vis An Arsenal Of present: 5(a), Rule 113 to operate, this Court has ruled that two (2) elements must beArms (1) the person to be arrested must execute an overt act indicating that he has just committed, is actually committing, or
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is attempting to commit a crime; and (2) such overt act is done in the presence or within the view of the arresting officer. Here, petitioners act of looking around after getting off the bus was but natural as he was finding his way to his destination. That he purportedly attempted to run away as the tanod approached him is irrelevant and cannot by itself be construed as adequate to charge the tanod with personal knowledge that petitioner had just engaged in, was actually engaging in or was attempting to engage in criminal activity. More importantly, petitioner testified that he did not run away but in fact spoke with the barangay tanod when they approached him. Further, [e]ven taking the prosecutions version generally as the truth, in line with our assumption from the start, the conclusion will not be any different. It is not unreasonable to expect that petitioner, walking the street at night, after being closely observed and then later tailed by three unknown persons, would attempt to flee at their approach. Flight per se is not synonymous with guilt and must not always be attributed to ones consciousness of guilt. . . . [F]light alone is inherently ambiguous. Alone, and under the circumstances of this case, petitioners flight lends itself just as easily to an innocent explanation as it does to a nefarious one. Could this not fall under Terry stop and frisk exception? [A] stop-and-frisk situation, following Terry v. Ohio, must precede a warrantless arrest, be limited to the persons outer clothing, and should be grounded upon a genuine reason, in light of the police officers experience and surrounding conditions, to warrant the belief that the person detained has weapons concealed about him. How about waiver and consent? A waiver of an illegal warrantless arrest does not also mean a waiver of the inadmissibility of evidence seized during an illegal warrantless arrest. Moreover, consent to a search is not to be lightly inferred, but must be shown by clear and convincing evidence it is the State which has the burden of proving, by clear and positive testimony, that the necessary consent was obtained and that it was freely and voluntarily given. Crimes, such as those which lead to drug addiction, have to be addressed but it must be done in a manner consistent with the Constitution in the rightfully vigorous campaign of the government to eradicate the hazards of drug use and drug trafficking, it cannot be permitted to run roughshod over an accuseds right to be presumed innocent until proven to the contrary and neither can it shirk from its corollary obligation to establish such guilt beyond reasonable doubt. Then, to show everyone that it is not blind to what may actually be happening in the outside world of criminals and policemen, the Court said: A final word. . . . We are not oblivious to the fact that in some instances, law enforcers resort to the practice of planting evidence to extract information or even harass civilians. Accordingly, courts are duty-bound to be [e]xtra vigilant in trying drug cases lest an innocent person be made to suffer the unusually severe penalties for drug offenses. In the same vein, let this serve as an admonition to police officers and public officials alike to perform their mandated University of Santo Tomas duties with commitment to the highest degree of diligence, righteousness and respect for the law. Faculty of Civil Law 11. Galvante v. Casimiro, 552 SCRA 304 (2008) If a person has his vehicle searched without warrant and he claims that the same is uncalled for, can he charge the policemen who did the searching before the Ombudsman? And, for what offense? The Court said that there is no such crime as searching without warrant [t]he conduct of a warrantless search is not a criminal act for it is not penalized under the Revised Penal Code (RPC) or any other special law. What the RPC punishes are only two forms of searches: . . . Art. 129 (Search warrants maliciously obtained and abuse in the service of those legally obtained) and Art. 130 (Searching domicile without witnesses). A Library Of Liberties vis--vis An Arsenal Ofbe Art. 32 in relation to Art. The persons remedy against warrantless searches would Arms 2219 (6) and (10) of the Civil Code, and/or disciplinary and administrative, under Section 41 of R.A. 6975 (DILG Act of 1990).
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12. Superlines Transportation Company, Inc. v. Philippine National Construction Company, 519 SCRA 432 (2007) Of accidents, investigations and impoundments of vehicles. A Superlines bus crashed into radio room of PNCC at Alabang Northbound Exit Lane way back in December 1990. After initial investigation by PNCC toll way patrol, the bus was turned over to the Alabang Traffic Bureau for its own investigation. Because of lack of adequate space, the bus was, on request of traffic investigator (Lopera), towed by the PNCC patrol to its compound where it was stored. Superlines request for return went unheeded by PNCC. The latter demanded sum of P40,000 or = collateral of same value, representing its estimate of the cost of reconstruction of damage but which Superlines estimated only to be P10,000. Because of this stalemate, a replevin suit was filed by = Superlines. The trial court dismissed. The Court of Appeals ruled that storage of the bus for safekeeping purposes partakes nature of deposit, hence custody or authority over it remained with the police traffic investigator and in the absence of any instructions from him, PNCC could not release the bus, i.e., the case should have been brought against the police authorities. Is the CA correct? In upholding the dismissal of petitioners complaint, the Court of Appeals held that while there is no law authorizing the impounding of a vehicle involved in an accident by the police authorities, * * * neither is there a law making the impounding of vehicles involved in accidents illegal. It added that the Supreme Court is of the view that there is yet no clear-cut policy or rule on the matter. The appellate court is mistaken. The Constitution grants the right against unreasonable seizures. Here, the seizure and impounding of the bus were unquestionably violative of the right to be let alone by the authorities as guaranteed by the Constitution. This Courts statement in Victory Liner[, Inc. v. Bellosillo (425 SCRA 79 [2004]),] on the lack of a clear-cut policy refers to the practice, rightly or wrongly, of trial court judges of issuing orders for the impounding of vehicles involved in accidents. It has no application to the instant case which involves the seizure and distraint implemented by respondents upon a verbal order by Lopera without the benefit or color of legality afforded by a court process, writ or order. Further, the fact that a year after the incident the driver was criminally charged for reckless imprudence in which the bus could possibly he held as evidence does not affect the outcome of the case the rule that property held as evidence in a criminal case cannot be replevied applies only where the property is lawfully held, i.e., seized in accordance with the rule on searches and seizures or its accepted exceptions. Property subject of litigation is not by that fact alone in custodia legis. 13. Sabio v. Gordon, 504 SCRA 704 (2006) Zones of privacy are recognized and protected in our Tomas University of Santo laws. Within these zones, any form of intrusion is impermissible unless excused by law and in accordance with customary legal process. The Faculty of Civil Law meticulous regard we accord to these zones arises not only from our conviction that the right to privacy is a constitutional right and the right mostReviewcivilized men, but also from our adherence to Bar valued by 2010 the Universal Declaration of Human Rights which mandates that, no one shall be subjected to arbitrary interference with his privacy and everyone has the right to the protection of the law against such interference or attacks. Nevertheless, in this case the Court did not find the refusal of the summoned officers of sequestered corporations as properly falling within any recognized right to privacy, specially in light of the legislative prerogative to conduct inquiries in aid of legislation, not to speak of the right of the people not to be kept A Library Of Liberties vis--vis An Arsenal Of but no in the dark while sinister activities might be going on all noise and sound Arms visuals.
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14. Social Justice Society v. Dangerous Drugs Board, 570 SCRA 410 (2008) Would the constitutional proscription against unreasonable searches and searches be violated by the requirement of the Comprehensive Dangerous Drugs Act of 2002 (R.A. No. 9165) mandating drug testing of students of secondary and tertiary schools, officers and employees of public and private offices, and persons charged before the prosecutors office with offenses punishable by more than six years imprisonment? (Another issue was whether the same requirement for those running for public office would constitute an impermissible addition to the qualifications for the office of Senator. The Court answered in the affirmative.) The Court held that the provisions of RA 9165 requiring mandatory, random, and suspicionless drug testing of students are constitutional. Indeed, it is within the prerogative of educational institutions to require, as a condition for admission, compliance with reasonable school rules and regulations and policies. To be sure, the right to enroll is not absolute; it is subject to fair, reasonable, and equitable requirements. The Court can take judicial notice of the proliferation of prohibited drugs in the country that threatens the well-being of the people, particularly the youth and school children who usually end up as victims. Accordingly, and until a more effective method is conceptualized and put in motion, a random drug testing of students in secondary and tertiary schools is not only acceptable but may even be necessary if the safety and interest of the student population, doubtless a legitimate concern of the government, are to be promoted and protected. How about for employees? Just as in the case of secondary and tertiary level students, the mandatory but random drug test prescribed by Sec. 36 of RA 9165 for officers and employees of public and private offices is justifiable, albeit not exactly for the same reason. Here, there would be a more careful balancing of values. [R]easonableness is the touchstone of the validity of a government search or intrusion. And whether a search at issue hews to the reasonableness standard is judged by the balancing of the government-mandated intrusion on the individuals privacy interest against the promotion of some compelling state interest. . . . Given that the drug-testing policy for employees and students for that matter under RA 9165 is in the nature of administrative search needing what was referred to in Vernonia as swift and informal disciplinary procedures, the probable-cause standard is not required or even practicable. Be that as it may, the review should focus on the reasonableness of the challenged administrative search in question. The first factor to consider in the matter of reasonableness is the nature of the privacy interest upon which the drug testing, which effects a search within the meaning of Sec. 2, Art. III of the Constitution, intrudes. In this case, the office or workplace serves as the backdrop for the analysis of the privacy expectation of the employees and the reasonableness of drug testing requirement. The employees privacy interest in an office is to a large extent circumscribed by University of Santo Tomas the companys work policies, the collective bargaining agreement, if any, entered into by management Faculty of employer to maintain discipline and efficiency in and the bargaining unit, and the inherent right of theCivil Law the workplace. Their privacy expectation in a regulated office environment is, in fine, reduced; and a Bar been upheld. Further, [j]ust as defining as the first factor degree of impingement upon such privacy hasReview 2010 is the character of the intrusion authorized by the challenged law. Reduced to a question form, is the scope of the search or intrusion clearly set forth, or, as formulated in Ople v. Torres, is the enabling law authorizing a search narrowly drawn or narrowly focused? In other words, taking into account the reduced expectation of privacy on the part of the employees, the compelling state concern likely to be met by the search, and the well-defined limits set forth in the law to properly guideLibrary Ofin the conduct of the random testing,Of Arms A authorities Liberties vis--vis An Arsenal . . . the challenged drug test requirement is, under the limited context of the case, reasonable and, ergo, constitutional.
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How about for those charged with crimes? Unlike the situation covered by Sec. 36 (c) and (d) of RA 9165, the Court finds no valid justification for mandatory drug testing for persons accused of crimes. In the case of students, the constitutional viability of the mandatory, random, and suspicionless drug testing for students emanates primarily from the waiver by the students of their right to privacy when they seek entry to the school, and from their voluntarily submitting their persons to the parental authority of school authorities. In the case of private and public employees, the constitutional soundness of the mandatory, random, and suspicionless drug testing proceeds from the reasonableness of the drug test policy and requirement. We find the situation entirely different in the case of persons charged before the public prosecutors office with criminal offenses punishable with six (6) years and one (1) day imprisonment. The operative concepts in the mandatory drug testing are randomness and suspicionless. In the case of persons charged with a crime before the prosecutors office, a mandatory drug testing can never be random or suspicionless. The ideas of randomness and being suspicionless are antithetical to their being made defendants in a criminal complaint. They are not randomly picked; neither are they beyond suspicion. When persons suspected of committing a crime are charged, they are singled out and are impleaded against their will. The persons thus charged, by the bare fact of being haled before the prosecutors office and peaceably submitting themselves to drug testing, if that be the case, do not necessarily consent to the procedure, let alone waive their right to privacy. To impose mandatory drug testing on the accused is a blatant attempt to harness a medical test as a tool for criminal prosecution, contrary to the stated objectives of RA 9165. Drug testing in this case would violate a persons right to privacy guaranteed under Sec. 2, Art. III of the Constitution. Worse still, the accused persons are veritably forced to incriminate themselves. 15. Case of S. And Marper v. The United Kingdom, Applications No. 30562/04 and 30566/04, 4 December 2008 {European Court of Human Rights, sitting as a Grand Chamber} (http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action =html&highlight=Dna&sessionid=16803951&skin=hudoc-en) The issue here is whether the indefinite retention of fingerprints, DNA profile, and cellular samples of persons who were charged but were not convicted would be violative of the right to respect for private life which is guaranteed by Article 8 of the European Convention on Human Rights.78 Here, S, 11 years old, was charged with attempted robbery but was acquitted. Marter, on the other hand, was charged with harassment of his partner but after they reconciled, the charge was no longer pressed. Fingerprints and DNA samples were taken from both, S and Marter but police refused to destroy them after the cases were terminated. So what is private life? The Court recalls that the concept of private life is a broad term not University of Santo Tomas susceptible to exhaustive definition. It covers the physical and psychological integrity of a person . . . . It can therefore embrace multiple Faculty of Civilphysical and social identity . . . . Elements aspects of the persons Law such as, for example, gender identification, name and sexual orientation and sexual life fall within the personal sphere protected by Article 8 Bar Beyond a persons name, his or her private and family life . . . . Review 2010 may include other means of personal identification and of linking to a family . . . . Information about the persons health is an important element of private life . . . . Article 8 protects in addition a right to personal development, and the right to establish and develop relationships with other human beings and the outside world . . . . The concept of private life moreover includes elements relating to a persons right to their image. Then, the Court went on to state: The mere storing of data relating to the private life of an individual amounts to an interference within the meaning of Article 8. A Library Of Liberties vis--vis An Arsenal Of Arms 78
Art. 8, European Convention on Human Rights provides: 1. Everyone has the right to respect for his private ... life ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ... for the prevention of disorder or crime...
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So what about personal data and modern developments? The Court maintains its view that an individuals concern about the possible future use of private information retained by the authorities is legitimate and relevant to a determination of the issue of whether there has been an interference. Indeed, bearing in mind the rapid pace of developments in the field of genetics and information technology, the Court cannot discount the possibility that in the future the private-life interests bound up with genetic information may be adversely affected in novel ways or in a manner which cannot be anticipated with precision today. How do these sum up then? Given the nature and the amount of personal information contained in cellular samples, their retention per se must be regarded as interfering with the right to respect for the private lives of the individuals concerned. And, the DNA profiles capacity to provide a means of identifying genetic relationships between individuals . . . is in itself sufficient to conclude that their retention interferes with the right to the private life of the individuals concerned. Accordingly, the retention of both cellular samples and DNA profiles discloses an interference with the applicants right to respect for their private lives, within the meaning of Article 8 1 of the Convention. How about fingerprints? While [i]t is common ground that fingerprints do not contain as much information as either cellular samples or DNA profiles, they objectively contain unique information about the individual concerned allowing his or her identification with precision in a wide range of circumstances. They are thus capable of affecting his or her private life and retention of this information without the consent of the individual concerned cannot be regarded as neutral or insignificant. The Court accordingly considers that the retention of fingerprints on the authorities records in connection with an identified or identifiable individual may in itself give rise, notwithstanding their objective and irrefutable character, to important private-life concerns. Further, the Court said: It is accepted in this regard that, because of the information they contain, the retention of cellular samples and DNA profiles has a more important impact on private life than the retention of fingerprints. However, the Court, . . . considers that, while it may be necessary to distinguish between the taking, use and storage of fingerprints, on the one hand, and samples and profiles, on the other, in determining the question of justification, the retention of fingerprints constitutes an interference with the right to respect for private life. So what do we make of all these? In conclusion, the Court finds that the blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences, as applied in the case of the present applicants, fails to strike a fair balance between the competing public and private interests and that the respondent State has overstepped any acceptable margin of appreciation in this regard. Accordingly, the retention at issue constitutes a disproportionate interference with the applicants right to respect for private life and cannot University of be regarded as necessary in a democratic society. Santo Tomas Respect for private life also means, of course, not copying the answers of the ones beside you.
16. Writ of Habeas Data To provide further protection to the people against assaults on their right to privacy, the Supreme Court has also come up with the Rule on the Writ of Habeas Data.79 This is a remedy available to any person whose right to privacy in life, liberty and security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, A Library Of Liberties vis--vis An Arsenal home and collecting or storing of data or information regarding the person, family,Of Arms correspondence of
79
Effective 2 February 2008, pursuant to the A.M. No. 08-1-16-SC (22 January 2008).
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the aggrieved party. Reliefs may include the enjoining of the act complained of, or the deletion, destruction, or rectification of the erroneous data or information.80
F. PRIVACY OF COMMUNICATIONS
Even without the explicit guarantee of the privacy of communications and correspondence in the U.S. Constitution, the same privilege was still considered available, pursuant to the Fourth Amendment.81 This is because, wiretapping, or electronic eavesdropping, is also a form of a seizure, an intrusion into ones sacred private precincts, which when not previously authorized by a judge, or demanded by exigencies, would be considered unreasonable and thus violative of a persons right to be left and let alone. Spying on a persons correspondence is also a form of unwarranted incursion into his private world. It has likewise been held that this constitutional protection is available even in highly personal relationships, such as in marital spats between Lothario-husbands and raging jealous wives.82 Related to privacy of communications is the Anti-Wiretapping Act (R.A. 4200) which the Court has declared as prohibiting the secret recording of conversations either through wiretapping83 or tape recorders. This means that whenever a recording is made of ones conversations, the same must be with the knowledge and consent of everyone involved.84 However, this does not apply if the conversation is not intended to be private, such as an altercation where the participants do not really care who are listening.85 1. Bartnicki v. Vopper, 532 U.S. 514 (2001) Ah, Cell Phones, the Ubiquitous Boon or Bane of Men, Women . . . and Presidencies!? During contentious CBA negotiations between a teachers union and the local school board, an unidentified person intercepted and recorded a cellular phone conversation between the union president and its chief negotiator. In that conversation, there was mention of blowing off front porches of the school board negotiators, or doing some work on some of them. After the parties had accepted a nonbinding arbitration proposal generally favorable to the teachers, Vopper, a radio commentator who had been critical of the union, played a tape of the intercepted conversation. Thus, the suit for damages. The issue that had to be resolved involves a balancing between conflicting interests founded on Right of Privacy and Freedom of the Press. The Court declared: These cases raise an important question concerning what degree of protection, if any, the First Amendment provides to speech that University of Santo Tomas discloses the contents of an illegally intercepted communication. That question is both novel and narrow. Faculty of Civil Law Despite the fact that federal law has prohibited such disclosures since 1934, this is the first time that we have confronted such an issue. The Court was presented with a conflict between interests of the Bar Review 2010 highest order on the one hand, the interest in the full and free dissemination of information concerning public issues, and, on the other hand, the interest in individual privacy and, more specifically, in
80 81 82 83
See also the Writ of Amparo, discussed in relation to the Writ of Habeas Corpus. See Katz v. United States, 389 U.S. 347 (1967) Zulueta v. Court of Appeals, 253 SCRA 699 (1996)
Salcedo-Ortaez v. Court of Appeals, 235 SCRA 111 (1994). Overhearing by means of a telephone extension is not covered by R.A. No. 4200, however. A Library Of Liberties Court, 145 SCRA 112 [1986]) Of Arms (Gaanan v. Intermediate Appellate vis--vis An Arsenal
84 85
Ramirez v. Court of Appeals, 248 SCRA 590 (1995) Navarro v. Court of Appeals, 313 SCRA 153 (1999)
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fostering private speech. and noted that [t]he Framers of the First Amendment surely did not foresee the advances in science that produced the conversation, the interception, or the conflict that gave rise to this action. It is therefore not surprising that Circuit judges, as well as the Members of this Court, have come to differing conclusions about the First Amendments application to this issue. Title III of the Omnibus Crime Control and Safe Streets Act of 1968 prohibits the interception and disclosure of private conversations. The only question is whether the application of these statutes in such circumstances violates the First Amendment. The Court observed: As a general matter, state action to punish the publication of truthful information seldom can satisfy constitutional standards. The Government sought to justify the statute by identifying two interests first, the interest in removing an incentive for parties to intercept private conversations, and second, the interest in minimizing the harm to persons whose conversations have been illegally intercepted. In answer, the Court declared: The normal method of deterring unlawful conduct is to impose an appropriate punishment on the person who engages in it. If the sanctions that presently attach to a violation of 2511(1)(a) do not provide sufficient deterrence, perhaps those sanctions should be made more severe. But it would be quite remarkable to hold that speech by a law-abiding possessor of information can be suppressed in order to deter conduct by a non-law-abiding third party. As for the other interest, The Governments second argument, however, is considerably stronger. Privacy of communication is an important interest, . . . Moreover, the fear of public disclosure of private conversations might well have a chilling effect on private speech. So how goes the balance? Accordingly, it seems to us that there are important interests to be considered on both sides of the constitutional calculus. In considering that balance, we acknowledge that some intrusions on privacy are more offensive than others, and that the disclosure of the contents of a private conversation can be an even greater intrusion on privacy than the interception itself. In this instance, the Court held that privacy concerns give way when balanced against the interest in publishing matters of public importance. . . . One of the costs associated with participation in public affairs is an attendant loss of privacy, harking back on the profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open, . . . [A] strangers illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern. Hello, Garci? Hello! Hello! Its been another election gone, anyone calling?
G.
University of Santo Tomas FREEDOM OF EXPRESSION Faculty of Civil Law
The right to freely speak ones mind is a highly valued freedom in a republican and democratic Bar Review 2010 society. If the people are really to be the source of power, and that sovereignty resides in them, then they should rightfully determine the fate of the nation. But they can only do the same if they are free to know and learn and to discuss matters unfettered by restrictions placed on them by the government. The authorities are supposed to let the people decide what is good for them and the government, not the other way around. If the government had its way, chances are it would only be allowing the free flow of information that would be favorable to itself. In the process, it would be filtering the news and information that are to guide or influence the people in making their decisions. The interplay of thought in the free and openA Library Of Liberties vis--vis An Arsenal Ofthe interest of society could market place of ideas provides the best means by which Arms be achieved, or so the philosophy of this freedom suggests. First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end.
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The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.86 In keeping with the underlying rationale for the freedom, this guarantee basically prohibits the State from exercising prior restraint or censorship. If the people are to decide, they must be allowed access to all available ideas and information, and not simply be given a sanitized version. At the same time, the freedom also means a corresponding check on subsequent punishment. Otherwise, freedom to speak unhindered may become a trap if a punishment so eagerly awaits a few steps away. Thus, only those which are clearly outside the scope of free expression may be subject to sanctions. In this regard, there is the concept of privileged communications which exempts the person communicating from prosecution. And here, it has been said that the enumeration under Art. 354 of the Revised Penal Code is not an exclusive list of qualifiedly privileged communications since fair commentaries on matters of public interest are likewise privileged. The rule on privileged communications had its genesis not in the nations penal code but in the Bill of Rights of the Constitution guaranteeing freedom of speech and of the press.87 It has also been held that the civic duty to see to it that public duty is discharged faithfully is inconsistent with requirements placing on citizens the burden of proving good motives and justifiable ends in airing their plaints, comments or criticisms.88 Estrada v. Sandiganbayan, 369 SCRA 394 (2001), discussed the concepts of facial challenge and overbreadth, explaining that a facial challenge is allowed to be made to a vague statute and to one which is overbroad because of possible chilling effect upon protected speech. The theory is that [w]hen statutes regulate or proscribe speech and no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, the transcendent value to all society of constitutionally protected expression is deemed to justify allowing attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with narrow specificity. The possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that the protected speech of others may be deterred and perceived grievances left to fester because of the inhibitory effects of overly broad statutes. 1. Chavez v. Gonzalez, 545 SCRA 441 (2008) There simply are certain memories, certain faces, certain sounds which do not just fade into oblivion. Such, apparently is the fate of the Hello, Garci Tapes. Even as that incident may be consciously sought to be shoved into the dustbins of history, it just keeps on lingering in the subconscious years later. The issue here is about the press pronouncements of the Secretary of Justice and the National University of Santo Tomas Telecommunications Commission warning about the adverse consequences that may be visited on those Faculty of Civil Law who may air the tapes, such as possible criminal prosecution under the Anti-Wiretapping Act (R.A. No. 4200). Chavez, a non-media practitioner, challenged the validity of said official actuations, claiming that Bar observed: 2010 they constituted prior restraint. The Court ReviewThis presents a unique tinge to the present challenge, considering that the cases in our jurisdiction involving prior restrictions on speech never had any issue of whether the governmental act or issuance actually constituted prior restraint. Rather, the determinations were always about whether the restraint was justified by the Constitution. With that, the Court, through the pen of the Chief Justice himself, practically got into an elucidating lecture on the great importance of the freedom of the speech and of the press, such as the following legal tidbits:
86 87 88
A Library Of U.S. 234 (2002) Ashcroft v. Free Speech Coalition, 535 Liberties vis--vis
Borjal v. Court of Appeals, 301 SCRA 1 (1999) Vasquez v. Court of Appeals, 314 SCRA 460 (1999)
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To be truly meaningful, freedom of speech and of the press should allow and even encourage the articulation of the unorthodox view, though it be hostile to or derided by others; or though such view induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. The protection afforded free speech extends to speech or publications that are entertaining as well as instructive or informative. Further, [w]hile all forms of communication are entitled to the broad protection of freedom of expression clause, the freedom of film, television and radio broadcasting is somewhat lesser in scope than the freedom accorded to newspapers and other print media, as will be subsequently discussed. [A]ll speech are not treated the same. Some types of speech may be subjected to some regulation by the State under its pervasive police power, in order that it may not be injurious to the equal right of others or those of the community or society. The difference in treatment is expected because the relevant interests of one type of speech, e.g., political speech, may vary from those of another, e.g., obscene speech. Distinctions have therefore been made in the treatment, analysis, and evaluation of the permissible scope of restrictions on various categories of speech. We have ruled, for example, that in our jurisdiction slander or libel, lewd and obscene speech, as well as fighting words are not entitled to constitutional protection and may be penalized. On Press Freedom: It is the chief source of information on current affairs. It is the most pervasive and perhaps most powerful vehicle of opinion on public questions. It is the instrument by which citizens keep their government informed of their needs, their aspirations and their grievances. It is the sharpest weapon in the fight to keep government responsible and efficient. Without a vigilant press, the mistakes of every administration would go uncorrected and its abuses unexposed. Four Aspects of Press Freedom: (1) freedom from prior restraint h (2) freedom from punishment subsequent to publication h (3) freedom of access to information h (4) freedom of circulation Prior restraint refers to official governmental restrictions on the press or other forms of expression in advance of actual publication or dissemination. Freedom from prior restraint is largely freedom from government censorship of publications, whatever the form of censorship, and regardless of whether it is wielded by the executive, legislative or judicial branch of the government. . . . Any law or official that requires some form of permission to be had before University of Santo the constitutional right, and remedy can publication can be made, commits an infringement ofTomas Faculty of Civil Law be had at the courts. Given that deeply ensconced in our fundamental2010 the hostility against all prior restraints Bar Review law is on speech, and any act that restrains speech is presumed invalid, and any act that restrains speech is hobbled by the presumption of invalidity and should be greeted with furrowed brows, it is important to stress not all prior restraints on speech are invalid. Content-Neutral Regulation v. Content-Based Restraint or Censorship: In content-neutral regulations, substantial governmental interest is required for their validity, and they are not subject to the strictest form of judicial scrutiny but an intermediate approach somewhere A Library Of Liberties vis--vis any other law and the between the mere rationality that is required of An Arsenal Of Armscompelling interest standard applied to content-based restrictions. As for content-based restrictions, they are given
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the strictest scrutiny in light of their inherent and invasive impact. Thus, when the prior restraint partakes of a content-neutral regulation, it is subjected to an intermediate review. A content-based regulation, however, bears a heavy presumption of invalidity and is measured against the clear and present danger rule. The latter will pass constitutional muster only if justified by a compelling reason, and the restrictions imposed are neither overbroad nor vague. Dichotomy of Free Press: Print v. Broadcast Media: The regimes presently in place for each type of media differ from one other. Contrasted with the regime in respect of books, newspapers, magazines and traditional printed matter, broadcasting, film and video have been subjected to regulatory schemes. And what is the basis for the difference in treatment? The dichotomy between print and broadcast media traces its origins in the United States. There, broadcast radio and television have been held to have limited First Amendment protection, and U.S. Courts have excluded broadcast media from the application of the strict scrutiny standard that they would otherwise apply to content-based restrictions. According to U.S. Courts, the three major reasons why broadcast media stands apart from print media are: (a) the scarcity of the frequencies by which the medium operates [i.e., airwaves are physically limited while print medium may be limitless]; (b) its pervasiveness as a medium; and (c) its unique accessibility to children. Modern Amenities and Changing Legal Landscape: Historically, the scarcity of frequencies was thought to provide a rationale. However, cable and satellite television have enormously increased the number of actual and potential channels. Digital technology will further increase the number of channels available. But still, the argument persists that broadcasting is the most influential means of communication, since it comes into the home, and so much time is spent watching television. Since it has a unique impact on people and affects children in a way that the print media normally does not, that regulation is said to be necessary in order to preserve pluralism. It has been argued further that a significant main threat to free expressionin terms of diversitycomes not from government, but from private corporate bodies. These developments show a need for a reexamination of the traditional notions of the scope and extent of broadcast media regulation. The emergence of digital technology which has led to the convergence of broadcasting, telecommunications and the computer industry has likewise led to the question of whether the regulatory model for broadcasting will continue to be appropriate in the converged environment. Internet, for example, remains largely unregulated, yet the Internet and the broadcast media share similarities, and the rationales used to support broadcast regulation apply equally to the Internet.
After those excursions into the esoterics and exoterics of press freedom, what about the merits of the Faculty of Civil Law case itself? The records of the case at bar, however, are confused and confusing, and respondents evidence falls short of satisfying the clear and present danger test. Firstly, the various statements of the Bar Review 2010 Press Secretary obfuscate the identity of the voices in the tape recording. Secondly, the integrity of the taped conversation is also suspect. The Press Secretary showed to the public two versions, one supposed to be a complete version and the other, an altered version. Thirdly, the evidence of the respondents on the whos and the hows of the wiretapping act is ambivalent, especially considering the tapes different versions. The identity of the wire-tappers, the manner of its commission and other related and relevant proofs are some of the invisibles of this case. Fourthly, given all these unsettled facets of the tape, it is even arguable whether its airing would violate the anti-wiretapping law. A Library Of Liberties vis--vis An Arsenal Of Arms Is the possibility of violation of a law enough basis for restraints to be placed on the communication of worthwhile news? It depends, but generally that should not be the case. In any event, one has to look
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at the totality of the picture. We rule that not every violation of a law will justify straitjacketing the exercise of freedom of speech and of the press. Our laws are of different kinds and doubtless, some of them provide norms of conduct which even if violated have only an adverse effect on a persons private comfort but does not endanger national security. There are laws of great significance but their violation, by itself and without more, cannot support suppression of free speech and free press. In fine, violation of law is just a factor, a vital one to be sure, which should be weighed in adjudging whether to restrain freedom of speech and of the press. The totality of the injurious effects of the violation to private and public interest must be calibrated in light of the preferred status accorded by the Constitution and by related international covenants protecting freedom of speech and of the press. . . . But to repeat, the need to prevent their violation cannot per se trump the exercise of free speech and free press, a preferred right whose breach can lead to greater evils. For this failure of the respondents alone to offer proof to satisfy the clear and present danger test, the Court has no option but to uphold the exercise of free speech and free press. There is no showing that the feared violation of the anti-wiretapping law clearly endangers the national security of the State. By the way, does it not matter that there were no official or formal issuances but just press releases? [I]t is not decisive that the press statements made by respondents were not reduced in or followed up with formal orders or circulars. It is sufficient that the press statements were made by respondents while in the exercise of their official functions. Undoubtedly, respondent Gonzales made his statements as Secretary of Justice, while the NTC issued its statement as the regulatory body of media. Any act done, such as a speech uttered, for and on behalf of the government in an official capacity is covered by the rule on prior restraint. The concept of an act does not limit itself to acts already converted to a formal order or official circular. Ahh, the Chilling Effect Principle. There is enough evidence of chilling effect of the complained acts on record. The warnings given to media came from no less the NTC, a regulatory agency that can cancel the Certificate of Authority of the radio and broadcast media. They also came from the Secretary of Justice, the alter ego of the Executive, who wields the awesome power to prosecute those perceived to be violating the laws of the land. Justice Carpio, concurring, came up with interesting observations and pronouncements, such as: Protected and Unprotected Expression Expression not subject to prior restraint is protected expression or high-value expression. Any content-based prior restraint on protected expression is unconstitutional without exception. A protected expression means what it says it is absolutely protected from censorship. Exceptions to the general rule that there should be no prior restraint on speech: (1) Pornography Faculty of Civil Law h (2) False or Misleading Advertisement89 h (3) Advocacy of Imminent Lawless Action h (4) Danger to National Security
University of Santo Tomas Bar Review 2010
Expression that may be subject to prior restraint is unprotected expression or low-value expression. By definition, prior restraint on unprotected expression is content-based since the restraint is imposed because of the content itself. Only unprotected expression may be subject to prior restraint. However, any such prior restraint on unprotected expression must hurdle a high barrier. First, such prior restraint is presumed unconstitutional. Second, the government bears a heavy burden of proving the A Library Of Liberties vis--vis An Arsenal Of Arms
This Court recognized false or misleading advertisement as unprotected expression only in October 2007. (See separate concurring opinion of C.J. Puno in Pharmaceutical and Health Care Association of the Philippines v. Duque III, 535 SCRA 265 [2007])
89
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constitutionality of the prior restraint. Thus, Courts will subject to strict scrutiny any government action imposing prior restraint on unprotected expression. The government action will be sustained if there is a compelling State interest, and prior restraint is necessary to protect such State interest. In such a case, the prior restraint shall be narrowly drawn only to the extent necessary to protect or attain the compelling State interest. Prior Restraint and Subsequent Puishment: While there can be no prior restraint on protected expression, such expression may be subject to subsequent punishment, either civilly or criminally. Hierarchy of Speech: If ever there is a hierarchy of protected expressions, political expression would occupy the highest rank, and among different kinds of political expression, the subject of fair and honest elections would be at the top. Violations of Law and Prior Restraint: The alleged violation of the Anti-Wiretapping Law is not in itself a ground to impose a prior restraint on the airing of the Garci Tapes because the Constitution expressly prohibits the enactment of any law, and that includes anti-wiretapping laws, curtailing freedom of expression. The only exceptions to this rule are the four recognized categories of unprotected expression. However, the content of the Garci Tapes does not fall under any of these categories of unprotected expression. Garci Tapes and Privacy Rights: The airing of the Garci Tapes does not violate the right to privacy because the content of the Garci Tapes is a matter of important public concern. The Constitution guarantees the peoples right to information on matters of public concern. The remedy of any person aggrieved by the public airing of the Garci Tapes is to file a complaint for violation of the Anti-Wiretapping Law after the commission of the crime. Subsequent punishment, absent a lawful defense, is the remedy available in case of violation of the Anti-Wiretapping Law. Prior Restraint and Judicial Determination: Any order imposing prior restraint on unprotected expression requires prior adjudication by the courts on whether the prior restraint is constitutional. This is a necessary consequence from the presumption of invalidity of any prior restraint on unprotected expression. Unless ruled by the courts as a valid prior restraint, government agencies cannot implement outright such prior restraint because such restraint is presumed unconstitutional at inception.
2. David v. Macapagal-Arroyo, 489 SCRA 160 (2006) University of Santo
Tomas Faculty of Civil Law This case, dealing with the authority of the President to declare a state of national emergency, gave
the Court an opportunity to discuss the repercussions on freedom of expression, as well as an occasion to talk about some concepts distinctly Bar Review 2010 speech and of the press. identified with freedom of On Freedom of Assemblies and Expressions and Crimes. Assembly means a right on the part of the citizens to meet peaceably for consultation in respect to public affairs. It is a necessary consequence of our republican institution and complements the right of speech. As in the case of freedom of expression, this right is not to be limited, much less denied, except on a showing of a clear and present danger of a substantive evil that Congress has a right to prevent. In other words, like other rights embraced in the freedom of expression, the right to assemble is not subject to previous restraint or A Library Of Liberties vis--vis An Arsenal Of Arms censorship. It may not be conditioned upon the prior issuance of a permit or authorization from the government authorities except, of course, if the assembly is intended to be held in a public place, a
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permit for the use of such place, and not for the assembly itself, may be validly required. The ringing truth here is that petitioner David, et al. were arrested while they were exercising their right to peaceful assembly. They were not committing any crime, neither was there a showing of a clear and present danger that warranted the limitation of that right. As can be gleaned from circumstances, the charges of inciting to sedition and violation of BP 880 were mere afterthought. Even the Solicitor General, during the oral argument, failed to justify the arresting officers conduct. In De Jonge v. Oregon, it was held that peaceable assembly cannot be made a crime, . . . Onwards, the Court said in relation to other petitioners: On the basis of the above principles, the Court likewise considers the dispersal and arrest of the members of KMU et al. . . . unwarranted. Apparently, their dispersal was done merely on the basis of Malacaangs directive canceling all permits previously issued by local government units. This is arbitrary. The wholesale cancellation of all permits to rally is a blatant disregard of the principle that freedom of assembly is not to be limited, much less denied, except on a showing of a clear and present danger of a substantive evil that the State has a right to prevent. Tolerance is the rule and limitation is the exception. . . . With the blanket revocation of permits, the distinction between protected and unprotected assemblies was eliminated. Moreover, the Court added, under BP 880, the authority to regulate assemblies and rallies is lodged with the local government units. They have the power to issue permits and to revoke such permits after due notice and hearing on the determination of the presence of clear and present danger. Here, petitioners were not even notified and heard on the revocation of their permits. The first time they learned of it was at the time of the dispersal. Such absence of notice is a fatal defect. When a persons right is restricted by government action, it behooves a democratic government to see to it that the restriction is fair, reasonable, and according to procedure. National Emergency and Press Freedom. As for the warrantless search of the offices of the Daily Tribune, the Court noted that it was a warrantless search, conducted at about 1:00 oclock in the morning of 25 February 25, 2006, in the absence of any official of the Daily Tribune except the security guard of the building, with the police operatives eventually seizing several materials for publication. Thereafter, a wave of warning came from government officials. Presidential Chief of Staff Michael Defensor was quoted as saying that such raid was meant to show a strong presence, to tell media outlets not to connive or do anything that would help the rebels in bringing down this government. Director General Lomibao further stated that if they do not follow the standards the standards are if they would contribute to instability in the government, or if they do not subscribe to what is in General Order No. 5 and Proc. No. 1017 we will recommend a takeover. National Telecommunications Commissioner Ronald Solis urged television and radio networks to cooperate with the government for the duration of the state of Santo emergency. He warned that his agency University of national Tomas will not hesitate to recommend the closure ofof Civil Law Faculty any broadcast outfit that violates rules set out for media coverage during times when the national security is threatened. So, what to make of all of Bar Revised Rules on Criminal Procedure lays down the steps these? The search is illegal. Rule 126 of TheReview 2010 in the conduct of search and seizure. . . . All these rules were violated by the CIDG operatives. Not only that, the search violated petitioners freedom of the press. The best gauge of a free and democratic society rests in the degree of freedom enjoyed by its media. In fine, [t]he search and seizure of materials for publication, the stationing of policemen in the vicinity of the The Daily Tribune offices, and the arrogant warning of government officials to media, are plain censorship. It is that officious functionary of the repressive government who tells the citizen that A Library do Liberties vis--vis less than what he Arms he may speak only if allowed to Of so, and no more and noAn Arsenal Of is permitted to say on pain of punishment should he be so rash as to disobey. Undoubtedly, the The Daily Tribune was subjected
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to these arbitrary intrusions because of its anti-government sentiments. This Court cannot tolerate the blatant disregard of a constitutional right even if it involves the most defiant of our citizens. Freedom to comment on public affairs is essential to the vitality of a representative democracy. It is the duty of the courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon. On free speech, facial challenges and the overbreadth doctrine, the Court said of these esoterica: First and foremost, the overbreadth doctrine is an analytical tool developed for testing on their faces statutes in free speech cases, also known under the American Law as First Amendment cases, and in that regard, a plain reading of PP 1017 shows that it is not primarily directed to speech or even speech-related conduct. The Court also noted: Moreover, the overbreadth doctrine is not intended for testing the validity of a law that reflects legitimate state interest in maintaining comprehensive control over harmful, constitutionally unprotected conduct. Undoubtedly, lawless violence, insurrection and rebellion are considered harmful and constitutionally unprotected conduct. . . . Thus, claims of facial overbreadth are entertained in cases involving statutes which, by their terms, seek to regulate only spoken words and again, that overbreadth claims, if entertained at all, have been curtailed when invoked against ordinary criminal laws that are sought to be applied to protected conduct. Here, the incontrovertible fact remains that PP 1017 pertains to a spectrum of conduct, not free speech, which is manifestly subject to state regulation. Second, facial invalidation of laws is considered as manifestly strong medicine, to be used sparingly and only as a last resort, and is generally disfavored; The reason for this is obvious. Embedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a law may be applied will not be heard to challenge a law on the ground that it may conceivably be applied unconstitutionally to others, i.e., in other situations not before the Court. . . . In other words, a facial challenge using the overbreadth doctrine will require the Court to examine PP 1017 and pinpoint its flaws and defects, not on the basis of its actual operation to petitioners, but on the assumption or prediction that its very existence may cause others not before the Court to refrain from constitutionally protected speech or expression. . . . And third, a facial challenge on the ground of overbreadth is the most difficult challenge to mount successfully, since the challenger must establish that there can be no instance when the assailed law may be valid. Here, petitioners did not even attempt to show whether this situation exists. 3. Soriano v. Laguardia, 587 SCRA 79 (2009) Whether under the guarantee of freedom of speech or religious freedom, foul language uttered in a broadcast that is for general viewership could not be tolerated. The Court observed: [T]he limits of the freedom of expression are reached when the expression touches upon matters of essentially private University of Santo Tomas concern. In the oft-quoted expression of Justice Holmes, the constitutional guarantee obviously was not Faculty of Civil Law intended to give immunity for every possible use of language. On the religious side, the Court said: Bar Review 2010 Plain and simple insults directed at another person cannot be elevated to the status of religious speech. Foul language used in retaliation against persons espousing another religious view is not converted into religious speech. We cannot accept that petitioner made his statements in defense of his reputation and religion, as they constitute no intelligible defense or refutation of the alleged lies being spread by a rival religious group. They simply illustrate that petitioner had descended to the level of name-calling and foul-language discourse. Petitioner could have chosen to contradict and disprove his detractors, but opted for the low road. As a reminder A Library Of Liberties vis--vis An Arsenal Of Arms jurisdiction that for everyone, the Court stated: It has been established in this
unprotected speech or low-value expression refers to libelous statements, obscenity or pornography, false
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or misleading advertisement, insulting or fighting words, i.e., those which by their very utterance inflict injury or tend to incite an immediate breach of peace and expression endangering national security. The Court finds that petitioners statement can be treated as obscene, at least with respect to the average child. Hence, it is, in that context, unprotected speech. And, speaking of the need see and hear in proper perspectives, the Court said: Following the contextual lessons of the cited case of Miller v. California, a patently offensive utterance would come within the pale of the term obscenity should it appeal to the prurient interest of an average listener applying contemporary standards. A cursory examination of the utterances complained of and the circumstances of the case reveal that to an average adult, the utterances Gago ka talaga x x x, masahol ka pa sa putang babae x x x. Yung putang babae ang gumagana lang doon yung ibaba, [dito] kay Michael ang gumagana ang itaas, o di ba! may not constitute obscene but merely indecent utterances. They can be viewed as figures of speech or merely a play on words. In the context they were used, they may not appeal to the prurient interests of an adult. The problem with the challenged statements is that they were uttered in a TV program that is rated G or for general viewership, and in a time slot that would likely reach even the eyes and ears of children. Accordingly, [w]hile adults may have understood that the terms thus used were not to be taken literally, children could hardly be expected to have the same discernment. Without parental guidance, the unbridled use of such language as that of petitioner in a television broadcast could corrupt impressionable young minds. The term putang babae means a female prostitute, a term wholly inappropriate for children, who could look it up in a dictionary and just get the literal meaning, missing the context within which it was used. . . . In this particular case, where children had the opportunity to hear petitioners words, when speaking of the average person in the test for obscenity, we are speaking of the average child, not the average adult. The average child may not have the adults grasp of figures of speech, and may lack the understanding that language may be colorful, and words may convey more than the literal meaning. Undeniably the subject speech is very suggestive of a female sexual organ and its function as such. In this sense, we find petitioners utterances obscene and not entitled to protection under the umbrella of freedom of speech. . . . With respect to the young minds, said utterances are to be treated as unprotected speech. With regard to matters of first impression, the Court noted that while a jurisprudential pattern involving certain offensive utterances conveyed in different mediums has emerged, this case is veritably one of first impression, it being the first time that indecent speech communicated via television and the applicable norm for its regulation are, in this jurisdiction, made the focal point. What test then should be used in matters like this? To be sure, the clear and present danger doctrine is not the only test which has been applied by the courts. Generally, said doctrine is applied to cases University of Santo Tomas involving the overthrow of the government and even other evils which do not clearly undermine national Faculty of Civil Law security. Since not all evils can be measured in terms of proximity and degree the Court, however, in several cases . . . applied the balancing of interests test. Former Chief Justice Fred Ruiz Castro, in Gonzales v. COMELEC, elucidated Bar Review Opinion that where the legislation under in his Separate 2010 constitutional attack interferes with the freedom of speech and assembly in a more generalized way and where the effect of the speech and assembly in terms of the probability of realization of a specific danger is not susceptible even of impressionistic calculation, then the balancing of interests test can be applied. The Court further explained that [t]his balancing of interest test, to borrow from Professor Kauper, rests on the theory that it is the courts function in a case before it when it finds public interests served by legislation, on the one hand, and the free expression clause affected by it, on the other, to balance one againstA Library Of Liberties vis--vis An the greaterOf Arms be placed. If, on the other and arrive at a judgment where Arsenal weight shall balance, it appears that the public interest served by restrictive legislation is of such nature that it
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outweighs the abridgment of freedom, then the court will find the legislation valid. In short, the balance-of-interests theory rests on the basis that constitutional freedoms are not absolute, not even those stated in the free speech and expression clause, and that they may be abridged to some extent to serve appropriate and important interests. To the mind of the Court, the balancing of interest doctrine is the more appropriate test to follow. Accordingly, the governments interest to protect and promote the interests and welfare of the children adequately buttresses the reasonable curtailment and valid restraint on petitioners prayer to continue as program host of Ang Dating Daan during the suspension period. And, for imagery, hows this? One who utters indecent, insulting, or offensive words on television when unsuspecting children are in the audience is, in the graphic language of FCC, a pig in the parlor. Public interest would be served if the pig is reasonably restrained or even removed from the parlor. Ergo, petitioners offensive and indecent language can be subjected to prior restraint. Further, would not the suspension of three months imposed on petitioner be prior restraint? No, the Court explained that it was an administrative sanction or subsequent punishment. To clarify, statutes imposing prior restraints on speech are generally illegal and presumed unconstitutional breaches of the freedom of speech. The exceptions to prior restraint are movies, television, and radio broadcast censorship in view of its access to numerous people, including the young who must be insulated from the prejudicial effects of unprotected speech. In this regard, all broadcast networks are regulated by the MTRCB since they are required to get a permit before they air their television programs. Consequently, their right to enjoy their freedom of speech is subject to that requirement. As lucidly explained by Justice Dante O. Tinga, government regulations through the MTRCB became a necessary evil with the government taking the role of assigning bandwidth to individual broadcasters. The stations explicitly agreed to this regulatory scheme; otherwise, chaos would result in the television broadcast industry as competing broadcasters will interfere or co-opt each others signals. In this scheme, station owners and broadcasters in effect waived their right to the full enjoyment of their right to freedom of speech in radio and television programs and impliedly agreed that said right may be subject to prior restraint denial of permit or subsequent punishment, like suspension or cancellation of permit, among others. In short, the imposition of sanctions on broadcasters who indulge in profane or indecent broadcasting does not constitute forbidden censorship. Finally, the Court highlighted the difference between the speaker and the medium when it comes to the imposition of sanctions. But even as we uphold the power of the MTRCB to review and impose sanctions for violations of PD 1986, its decision to suspend petitioner must be modified, for nowhere in that issuance, particularly the power-defining Sec. 3 nor in the MTRCB Schedule of Administrative Penalties effective January 1, 1999 is the Board empowered to suspend the program host or even to University of programs. The MTRCB, to be sure, may prohibit prevent certain people from appearing in television Santo Tomas Faculty of Civil Law the broadcast of such television programs or cancel permits for exhibition, but it may not suspend television personalities, for such would be beyond its jurisdiction. The MTRCB cannot extend its exercise of regulation beyond what theBarprovides. In 2010 law Review other words, the program may be suspended, but not the speaker himself. 4. Binay v. Secretary of Justice, 501 SCRA 312 (2006) Of adopted daughters and expensive lingerie.
In this case a news account appeared about the allegedly profligate ways of an adopted daughter of one who was once aA Library Ofbut whose wife was then currently the localitys chief executive. The public official Liberties vis--vis An Arsenal Of Arms writer and the publisher were sued for libel. They argued in their defense that, inter alia, they referred to the price of the underwear not for the purpose of maligning her or to make her look frivolous in the
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publics eyes, but to show that her family leads lavish and extravagant lives; and that this matter is within the realm of public interest, that the news item was a fair comment on the fitness of the father to run for public office, particularly on his lifestyle and that of his family. The Supreme Court would have nothing of it, however. The Court held that there was prima facie showing that subject paragraph in the subject article is defamatory. It is opprobrious, ill-natured, and vexatious as it has absolutely nothing to do with [Binays] qualification as a mayoralty candidate or as a public figure. It appears that [the defendants] only purpose in focusing on [the daughters] status as an adopted child and her alleged extravagant purchases was to malign her before the public and to bring her into disrepute. This is a clear and simple invasion of her privacy. And, the Court added: Whichever way we view it, we cannot discern a legal, moral, or social duty in publishing Joannas status as an adopted daughter. Neither is there any public interest respecting her purchases of panties worth = P1,000.00. Whether she indeed bought those panties is not something that the public can afford any protection against. With this backdrop, it is obvious that private respondents only motive in inserting paragraph 25 in the subject article is to embarrass Joanna before the reading public. 5. GMA Network, Inc. v. Bustos, 504 SCRA 638 (2006) Following the Medical Board Examinations in August 1987, and amidst allegations of errors in correction, several unsuccessful examinees filed a petition for mandamus to compel the board of medical examiners to re-check and reevaluate the test papers. This was carried in a GMA TV news report by Vidal, which report was accompanied by a file video of a 1982 demonstration by PGH doctors and personnel regarding wage and economic dispute with the hospital management. The members of the Board of Medicine then filed a damage suit against those responsible for the broadcast for an allegedly false, malicious and one-sided report. The Court, applying rules on libel, such as An award of damages under the premises presupposes the commission of an act amounting to defamatory imputation or libel, which, in turn, presupposes malice and that Malice or ill-will in libel must either be proven (malice in fact) or may be taken for granted in view of the grossness of the imputation (malice in law) found no valid case against GMA. In the instant case, there can be no quibbling that what petitioner corporation aired in its Channel 7 in the February 10, 1988 late evening newscast was basically a narration of the contents of the aforementioned petition for mandamus. Moreover, although every defamatory imputation is presumed to be malicious, the presumption does not exist in matters considered privileged. In fine, the privilege destroys the presumption. Accordingly, since what at bottom the reporter and GMA Network, Inc., did was simply to inform the public of the mandamus petition filed against the respondent doctors who were admittedly the then chairman and members of the Board of Medicine, there was nothing actionable. It University of Santo Tomas was clearly within the reporters job to keep theof Civil Law Faculty public abreast of recent developments therein. What about the misleading file video, giving the impression that there was a demonstration against Bar Review 2010 the board of medical examiners? The Court held: Contrary to the CAs findings, the identifying character-generated words file video appeared to have been superimposed on screen, doubtless to disabuse the minds of televiewers of the idea that a particular footage is current. . . . At any rate, the absence of the accompanying character-generated words file video would not change the legal situation insofar as the privileged nature of the audio-video publication complained of is concerned. For, with the view we take of the state of things, the video footage was not libel in disguise; standing without accompanying sounds or voices, it was meaningless, or, at least, conveyed nothing derogatory in nature. A Library Of Liberties vis--vis An Arsenal Of Arms How about the failure of the GMA to secure the other side of the story? Surely, the petitioners failure, perhaps even their indisposition, to obtain and telecast the respondents side is not an indicia of
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malice. . . . As petitioner Vidal said while on the witness box, his business as a reporter is to report what the public has the right to know, not to comment on news and events, obviously taking a cue from the pronouncement of the US Fifth Circuit Court of Appeals in New York Times Co. v. Connor that a reporter may rely on statements made by a single source even though they reflect only one side of the story without fear of libel prosecution by a public official. 6. Pleasant Grove City v. Summum, 555 U.S. ___ (2009) On government speech and freedom of expression. The U.S. Supreme Court presented the gist of the case in this way: This case presents the question whether the Free Speech Clause of the First Amendment entitles a private group to insist that a municipality permit it to place a permanent monument in a city park in which other donated monuments were previously erected. The Court of Appeals held that the municipality was required to accept the monument because a public park is a traditional public forum. We conclude, however, that although a park is a traditional public forum for speeches and other transitory expressive acts, the display of a permanent monument in a public park is not a form of expression to which forum analysis applies. Instead, the placement of a permanent monument in a public park is best viewed as a form of government speech and is therefore not subject to scrutiny under the Free Speech Clause. With regard to the application of the freedom of speech to the government itself, the Court said: The Free Speech Clause restricts government regulation of private speech; it does not regulate government speech. . . . ([T]he Government's own speech . . . is exempt from First Amendment scrutiny) . . . . (Government is not restrained by the First Amendment from controlling its own expression). 7. Pharmaceutical and Health Care Association of the Philippines v. Duque III, 535 SCRA 265 (2007) In his concurring opinion, Chief Justice Puno, said: I write to elucidate another reason why the absolute ban on the advertising and promotion of breastmilk substitutes found under Sections 4(f) and 11 of A.O. No. 2006-0012 (RIRR) should be struck down. The advertising and promotion of breastmilk substitutes properly falls within the ambit of the term commercial speech that is, speech that proposes an economic transaction. This is a separate category of speech which is not accorded the same level of protection as that given to other constitutionally guaranteed forms of expression but is nonetheless entitled to protection. Any parameters for commercial speech protection? Well, yes. C.J. Puno made reference to the four-part analysis of Central Hudson Gas & Electric v. Public Service Commission, 447 U.S. 557 (1980): To begin with, the commercial speech must concern lawful activity and not be misleading if it is to be protected under the FirstSanto Tomas the asserted governmental University of Amendment. Next, interest must be substantial. If both of these requirements are met, it must next be determined whether Faculty of Civil Law the state regulation directly advances the government interest asserted, and whether it is not more extensive than is necessary to serve the interest. Bar Review 2010 So what would all these lead to? I proffer the humble view that the absolute ban on advertising prescribed under Sections 4(f) and 11 of the RIRR is unduly restrictive and is more than necessary to further the avowed governmental interest of promoting the health of infants and young children. It ought to be self-evident, for instance, that the advertisement of such products which are strictly informative cuts too deep on free speech. The laudable concern of the respondent for the promotion of the health of infants and young children cannot justify the absolute, overarching ban.90 A Library Of Liberties vis--vis An Arsenal Of Arms
In his separate opinion in Chavez v. Gonzales, 545 SCRA 441 (2008), Justice Carpio, referring to Pharmaceutical and Health Care Association, pointed out that the Court recognized false or misleading advertisement as unprotected expression only in October 2007.
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8. Bayan v. Ermita, 488 SCRA 226 (2006) When words mean more to distort than to clarify, when assemblies could be easily seen as plots to unseat the destabilize society than outlets of the hoi pollois legitimate grievances, when things taken for granted are appreciated most when realized to have been practically ignored. These might as well be the themes for this case. In issue is the constitutionality of B.P. 880 (The Public Assembly Act of 1985) as well as the validity of the Calibrated Preemptive Response (CPR) policy. Adverting to alleged intelligence reports pointing to credible plans of anti-government groups to inflame the political situation, sow disorder and incite people against the duly constituted authorities, Malacaang instructed the PNP as well as the local government units to strictly enforce a no permit, no rally policy, disperse groups that run afoul of this standard and arrest all persons violating the laws of the land as well as ordinances on the proper conduct of mass actions and demonstrations. Along this line it came up with the CPR, declaring: The rule of calibrated preemptive response is now in force, in lieu of maximum tolerance provided for under B.P. 880. This eventually culminated in violent dispersals of rallies without permits which permits might not have been forthcoming anyway! In deciding the matter, the Supreme Court practically had to remind the Palace by the Stinky River about the basic postulates of a republican government. Said the Court: The first point to mark is that the right to peaceably assemble and petition for redress of grievances is, together with freedom of speech, of expression, and of the press, a right that enjoys primacy in the realm of constitutional protection. For these rights constitute the very basis of a functional democratic polity, without which all the other rights would be meaningless and unprotected. . . . It is rather to be expected that more or less disorder will mark the public assembly of the people to protest against grievances whether real or imaginary, because on such occasions feeling is always wrought to a high pitch of excitement, and the greater the grievance and the more intense the feeling, the less perfect, as a rule will be the disciplinary control of the leaders over their irresponsible followers. But if the prosecution be permitted to seize upon every instance of such disorderly conduct by individual members of a crowd as an excuse to characterize the assembly as a seditious and tumultuous rising against the authorities, then the right to assemble and to petition for redress of grievances would expose all those who took part therein to the severest and most unmerited punishment, if the purposes which they sought to attain did not happen to be pleasing to the prosecuting authorities. If instances of disorderly conduct occur on such occasions, the guilty individuals should be sought out and punished therefor, but the utmost discretion must be exercised in drawing the line between disorderly and seditious conduct and between an essentially peaceable assembly and a tumultuous uprising. Words, body language and assemblies could be hurting toUniversity of Santo Tomas ones overly sensitive skin, no doubt, specially if one has been used to dark labyrinthine rooms of power, afraid to be exposed to the light and heat of the sun, or just the glare Faculty of Civil Law of the attention of an informed and enlightened citizenry.
Bar Review 2010 Not to be misunderstood, the Court reminded everyone, however, that the right, while sacrosanct, is not absolute, paving the way for its holding that B.P. 880 provides a restriction that simply regulates the time, place and manner of the assemblies it does not impose an absolute ban on public assemblies. And, neither is it a content-based regulation. A fair and impartial reading of B.P. No. 880 thus readily shows that it refers to all kinds of public assemblies that would use public places. The reference to lawful cause does not make it content-based because assemblies really have to be for lawful causes, otherwise they would not be peaceable and entitled to protection. Neither are the words opinion, A Library the definition vis--vis An Arsenal Of Arms protesting and influencing inOf Liberties of public assembly content based, since they can refer to any subject. The words petitioning the government for redress of grievances come from the wording
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of the Constitution, so its use cannot be avoided. Finally, maximum tolerance is for the protection and benefit of all rallyists and is independent of the content of the expressions in the rally. How about the grant or denial of permits? [T]he permit can only be denied on the ground of clear and present danger to public order, public safety, public convenience, public morals or public health. And in this regard, those responsible for permits must be guided by the clear and present danger test. Oh, by the way, what ever happened to the Freedom Parks which were supposed to have been set up pursuant to B.P. 880 more than 20 years ago? The Solicitor General stated during the oral arguments that, to his knowledge, only Cebu City has declared a freedom park Fuente Osmea. That of Manila, the Sunken Gardens, has since been converted into a golf course, he added. (Come again?) The Court then observed: If this is so, the degree of observance of B.P. No. 880s mandate that every city and municipality set aside a freedom park within six months from its effectivity in 1985, or 20 years ago, would be pathetic and regrettable. The matter appears to have been taken for granted amidst the swell of freedom that rose from the peaceful revolution of 1986. Accordingly, [c]onsidering that the existence of such freedom parks is an essential part of the laws system of regulation of the peoples exercise of their right to peacefully assemble and petition, the Court is constrained to rule that after thirty (30) days from the finality of this Decision, no prior permit may be required for the exercise of such right in any public park or plaza of a city or municipality until that city or municipality shall have complied with Section 15 of the law. For without such alternative forum, to deny the permit would in effect be to deny the right. Advance notices should, however, be given to the authorities to ensure proper coordination and orderly proceedings. Going back to the CPR, and the Filipinos apparent penchant for giving words a different meaning if not worse, such as inverting them altogether91 Malacaangs explanation for the phrase in lieu of is quite funny and amazingly amusing in a bizarre way. [T]he Solicitor General has conceded that the use of the term should now be discontinued, since it does not mean anything other than the maximum tolerance policy set forth in B.P. No. 880. This is stated in the Affidavit of respondent Executive Secretary Eduardo Ermita where he explained that when I stated that calibrated preemptive response is being enforced in lieu of maximum tolerance I clearly was not referring to its legal definition but to the distorted and much abused definition that it has now acquired. Did the Supreme Court buy that explanation? The Courts response: Whatever! At any rate, the Court rules that in view of the maximum tolerance mandated by B.P. No. 880, CPR serves no valid purpose if it means the same thing as maximum tolerance and is illegal if it means something else. And, lest those in power may be predisposed to misconstrue and misrepresent what the Court said, it thundered from Mt. Olympus that the so-called calibrated preemptive response policy has no place in our legal firmament and must be University of merely Tomas struck down as a darkness that shrouds freedom. ItSantoconfuses our people and is used by some Faculty of Civil maximum tolerance is for the benefit of police agents to justify abuses. . . . Far from being insidious, Law rallyists, not the government. Praise be the gods. Indeed, a government that is not afraid of its own shadow should have no problem dealing with peoples plaints. One that sees sinister plots in every group action, one that gives strange meanings to ordinary words, one which employs force to prevent people from knowing about skeletons in the closets may soon be hiding real skeletons if not checked at the earliest opportunity. More than a hundred years ago, it was observed: It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches
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CPR ordinarily means cardiopulmonary resuscitation which is done to save a person. But here, Malacaangs CPR practically meant to strangle the peoples exercise of their right to freely breath and express themselves. Anyway, if salvage could mean the opposite of saving or rescuing, whats new with another distorted meaning for one more term?
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and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.92 Or, in the words of Justice Black, dissenting in Board of Education v. Allen, it nearly is always by insidious approaches that the citadels of liberty are most successfully attacked.93 Do we really know how to learn from the past?94 Or is it much easier to go along with our indolent and careless ways to follow the path of least resistance, confident in our own safety and welfare, until we realize we are already at the edge of the precipice, needing only a slight push or whiff of air to send us plummeting into the abyss? 9. Integrated Bar of the Philippines v. Atienza, SCRA (G.R. No. 175241, 24 February 2010) Where the applicants for a permit specify a venue where they want to hold a rally, could the mayor instead specify another place? No, he cannot without an acceptable basis. Here, the Court said that the mayor, in modifying the permit outright, gravely abused his discretion, specially so as he did not immediately inform the applicants who should have been heard first on the matter of his perceived imminent and grave danger of a substantive evil that may warrant the changing of the venue. The opportunity to be heard precedes the action on the permit, since the applicant may directly go to court after an unfavorable action on the permit. Respondent failed to indicate how he had arrived at modifying the terms of the permit against the standard of a clear and present danger test which, it bears repeating, is an indispensable condition to such modification. Nothing in the issued permit adverts to an imminent and grave danger of a substantive evil, which blank denial or modification would, when granted imprimatur as the appellate court would have it, render illusory any judicial scrutiny thereof. It is true that the licensing official, here respondent Mayor, is not devoid of discretion in determining whether or not a permit would be granted. It is not, however, unfettered discretion. While prudence requires that there be a realistic appraisal not of what may possibly occur but of what may probably occur, given all the relevant circumstances, still the assumption especially so where the assembly is scheduled for a specific public place is that the permit must be for the assembly being held there. The exercise of such a right, in the language of Justice Roberts, speaking for the American Supreme Court, is not to be abridged on the plea that it may be exercised in some other place. Notably, respondent failed to indicate in his Comment any basis or explanation for his action. It smacks of whim and caprice for respondent to just impose a change of venue for an assembly that was slated for a specific public place. University of Santo Tomas
Faculty of Civil 10. Japan Airlines v. Simangan, 552 SCRA 341 (2008)Law
Can a passenger who had been unceremoniously bumped off by an airline be held liable for the injury Bar Review 2010 that might have been caused to the reputation of the airline as a result of the publication of the passengers grievance? Here, the passenger who was already seated inside the plane was told to disembark because the airline personnel doubted the validity of his travel papers. He then filed a complaint against the airline for breach of contract of carriage. The airline, counterclaimed for damages.
JAL is a common carrier. JALs business is mainly with the traveling public. It invites people to
92 93 94
A Library Of Liberties Boyd v. United States, 116 U.S. 616 (1886)

392 U.S. 236 (1968), citing Boyd.
vis--vis An Arsenal Of Arms

S George Santayana
Those who cannot remember the past are condemned to repeat it.
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avail themselves of the comforts and advantages it offers. Since JAL deals with the public, its bumping off of respondent without a valid reason naturally drew public attention and generated a public issue. The publications involved matters about which the public has the right to be informed because they relate to a public issue. This public issue or concern is a legitimate topic of a public comment that may be validly published. Assuming that respondent, indeed, caused the publication of his complaint, he may not be held liable for damages for it. The constitutional guarantee of freedom of the speech and of the press includes fair commentaries on matters of public interest. The Court further said that [e]ven though JAL is not a public official, the rule on privileged commentaries on matters of public interest applies to it. The privilege applies not only to public officials but extends to a great variety of subjects, and includes matters of public concern, public men, and candidates for office. Hence, pursuant to the Borjal case, there must be an actual malice in order that a discreditable imputation to a public person in his public capacity or to a public official may be actionable. . . . Considering that the published articles involve matters of public interest and that its expressed opinion is not malicious but based on established facts, the imputations against JAL are not actionable. Therefore, JAL may not claim damages for them.
H.
FREEDOM OF RELIGION
A mans relationship with his idea of a deity or a Supreme Being is something which the State is not supposed to interfere with. Nor is it really competent to deal with it. Like matters of thought, concerns about conscience and belief are a mans own business. In any case, it is hardly possible for a worldly institution that the government is to try to interest itself in spiritual matters. Religion is a matter of faith and belief, not of scientific fact and verification. And, getting into the act on religious matters could hardly be beneficial to anyone, either for the government itself or for any particular religion. Lessons from the past have made any such unions disastrous and counterproductive. Freedom of religion guarantees complete freedom to believe without any interference from the State. The right to act, or to translate that belief into action, however, may be subject to certain regulations consistent with the mandate of the State to promote the welfare of everyone and to provide for an orderly society. Nevertheless, this right on the part of the government is not to be lightly assumed, as it must have to be weighed carefully with any religion-grounded freedom or interest that may be interfered with. 1. Estrada v. Escritor, 408 SCRA 1 (2003) and 492 SCRA 1 (2006) be the question to be asked in this case.
University of Santo Tomas To what extent would you defy Faculty of Civil Law sake of love? This might as well the conventions of society for the
This involves an administrative case filed by a total stranger against a court interpreter (Escritor) for immoral conduct arising from the fact that she, a married woman, was living with a married man not her husband, and that she has a child by him. Escritor acknowledged that indeed she had been in such a conjugal arrangement. She justified this, however, by making reference to the fact that this is sanctioned by her religious organization, i.e., in the eyes of God and her religious community, the Jehovahs Witnesses, she and the man are considered validly living as husband and wife pursuant to a Declaration of Pledging Faithfulness where they undertook to be legally married pursuant to civil laws if and when A Library them. the circumstances would allow Of Liberties vis--vis An Arsenal Of Arms
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In trying to resolve the case, the Court majority, through then Justice Puno, went into a dissertation
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on the background, history and application of the freedom of religion through generations, surveying both U.S. case law and Philippine jurisprudence. At the end, it came up with the conclusion that in the Philippines we adopt a policy of benevolent neutrality which allows for accommodation of religious practices and morality, and that an act or practice grounded on religious freedom may only be overcome by a compelling state interest. Benevolent neutrality recognizes that government must pursue its secular goals and interests but at the same time strives to uphold religious liberty to the greatest extent possible within flexible constitutional limits. Thus, although the morality contemplated by laws is secular, benevolent neutrality could allow for accommodation of morality based on religion, provided it does not offend compelling state interests. In the initial phase, the Court set the guiding principles. The Office of the Court Administrator (OCA) was tasked to undertake some investigation and submit a report to the Court. Thus, the case was remanded to the OCA and the Solicitor General was ordered to intervene, to be given the opportunity (a) to examine the sincerity and centrality of respondents claimed religious belief and practice; (b) to present evidence on the states compelling interest to override respondents religious belief and practice; and (c) to show that the means the state adopts in pursuing its interest is the least restrictive to Escritors religious freedom. When the case went back to the Supreme Court almost three years later,95 the Court, applying the standards and parameters it formulated in the original decision, found the States interests wanting to overcome the asserted Free Exercise rights of Escritor. Opening up with the line, While man is finite, he seeks and subscribes to the Infinite, it ended with the disposition that we find that in this particular case and under these distinct circumstances, respondent Escritors conjugal arrangement cannot be penalized as she has made out a case for exemption from the law based on her fundamental right to freedom of religion. The Court recognizes that state interests must be upheld in order that freedoms including religious freedom may be enjoyed. In the area of religious exercise as a preferred freedom, however, man stands accountable to an authority higher than the state, and so the state interest sought to be upheld must be so compelling that its violation will erode the very fabric of the state that will also protect the freedom. In the absence of a showing that such state interest exists, man must be allowed to subscribe to the Infinite. Slippery slope adjudication, any one?96
I. FREEDOM OF MOVEMENT University of Santo Tomas Man is a peripatetic being. He keeps moving about. HeLaw likely develop bedsores and other Faculty of Civil would
maladies if he simply stayed in one place. In any case, being able to move about and go to other places could have an informative and educative benefit, aside from the mere pleasure of going to places and Bar Review 2010 seeing sights other than the same old boring commonplace views. And, for the purpose of going places, even as he cannot run like cheetahs, fly like birds, or swim like fishes, he might as well approximate the same by building vehicles by which he can.
95 96
Estrada v. Escritor, 492 SCRA 1 (2006)
In this case, Justices Puno and Carpio exchanged pleasantries about the decision in that case leading to some slippery slope.
In his concurring opinion in Washington v. Glucksberge, vis--vis (1997), Justice Souter said: The case for the slippery slope A Library Of Liberties 521 U.S. 702 An Arsenal Of Arms is fairly made out here, not because recognizing one due process right would leave a court with no principled basis to avoid recognizing another, but because there is a plausible case that the right claimed would not be readily containable by reference to facts about the mind that are matters of difficult judgment, or by gatekeepers who are subject to temptation, noble or not.
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And, talking of contemporary events, seen in light of the ease with which men and women move and fly across boundaries, the implications of trans-national illnesses might as well be factored in the calculus. With the swine flu concerns, could one just be irresponsible in his travels? 1. Mirasol v. Department of Public Works and Highways, 490 SCRA 318 (2006) A toll way is not an ordinary road. As a facility designed to promote the fastest access to certain destinations, its use, operation, and maintenance require close regulation. Public interest and safety require the imposition of certain restrictions on toll ways that do not apply to ordinary roads. As a special kind of road, it is but reasonable that not all forms of transport could use it. The right to travel does not mean the right to choose any vehicle in traversing a toll way. The right to travel refers to the right to move from one place to another. Petitioners can traverse the toll way any time they choose using private or public four-wheeled vehicles. Petitioners are not denied the right to move from Point A to Point B along the toll way. Petitioners are free to access the toll way, much as the rest of the public can. The mode by which petitioners wish to travel pertains to the manner of using the toll way, a subject that can be validly limited by regulation. Thus, the prohibition on motorcycles along toll ways.
J. RIGHT TO INFORMATION
Corollary to the right to express oneself freely is the right to be informed of matters which concern himself or herself and the rest of the body politic. If the people are to make meaningful contributions to their governance, then they must know what is happening inside and outside the halls of government. Basic to this right to be informed is the necessity for laws to be published in order to be effective. It makes no sense presuming knowledge97 if the government itself has not made provisions for the dissemination of statutes and regulations which affect the peoples lives and interests. And here, it must not be lost sight of that not only laws but also administrative circulars which are not merely internal or interpretative must also be published. 1. Senate of the Philippines v. Ermita, 488 SCRA 1 (2006) The people as well as their representatives are entitled to know what are happening around them, specially those of public concern involving use or misuse of public funds, as well as other deals entered into by those who are in temporary ascendancy ofthe government. At the same time, there are things University in Santo Tomas which should be kept confidential for the proper and efficient functioning of the government. How to Faculty of Civil Law put these considerations in their proper places is the subject of Senate of the Philippines. The Court itself opened its discussion of the case with Bar general verities: these Review 2010 A transparent government is one of the hallmarks of a truly republican state. Even in the early history of republican thought, however, it has been recognized that the head of government may keep certain information confidential in pursuit of the public interest. Explaining the reason for vesting executive power in only one magistrate, a distinguished delegate to the U.S. Constitutional Convention said: Decision, activity, secrecy, and dispatch will generally characterize the proceedings of one man, in a much more eminent degree than the proceedings of any greater number; and in proportion as the A Library Of will be diminished. History has been witness, number is increased, these qualitiesLiberties vis--vis An Arsenal Of Armshowever, to the fact
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Ignorance of the law excuses no one from compliance therewith. (Art. 3, Civil Code)
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that the power to withhold information lends itself to abuse, hence, the necessity to guard it zealously. In issue here is Executive Order No. 464 which the President ostensibly issued for the purpose of ensuring observance of the principle of separation of powers, adherence to the rule on executive privilege and respect for the rights of public officials appearing in legislative inquiries in aid of legislation under the Constitution, and which became effective immediately upon its issuance on 28 September 2005. It came on the heels of several investigations and inquiries being conducted by the Senate. As a consequence of the issuance of E.O. 464, the Executive Department practically sealed the lips of everyone in the Executive Department and congressional inquiries were left with sessions snubbed by the invited resource persons. Not only were department heads not allowed to appear but even minor functionaries were similarly prevented as the executive privilege was also bestowed or imposed on them, meaning no appearance without presidential clearance. The Court noted that there is a conflict between the power of legislative inquiry of Congress and presidential executive privilege. For the purpose of determining the point where the two can accommodate each other, the Court discussed both concepts. It said that the power of inquiry in inherent in the power to legislate. This power, with process to enforce it, is grounded on the necessity of information in the legislative process. If the information possessed by executive officials on the operation of their offices is necessary for wise legislation on that subject, by parity of reasoning, Congress has the right to that information and the power to compel the disclosure thereof. On the other hand, in determining the meaning and scope of executive privilege, the Court had to rely on foreign sources even as it noted that it is not new in this jurisdiction. It has been used even prior to the 1987 Constitution. Nevertheless, [b]eing of American origin, it is best understood in light of how it has been defined and used in the legal literature of the United States. It then went on to say, Schwartz defines executive privilege as the power of the Government to withhold information from the public, the courts, and the Congress. Similarly, Rozell defines it as the right of the President and high-level executive branch officers to withhold information from Congress, the courts, and ultimately the public. Further, Executive privilege is, nonetheless, not a clear or unitary concept. It has encompassed claims of varying kinds. Tribe, in fact, comments that while it is customary to employ the phrase executive privilege, it may be more accurate to speak of executive privileges since presidential refusals to furnish information may be actuated by any of at least three distinct kinds of considerations, and may be asserted, with differing degrees of success, in the context of either judicial or legislative investigations. One variety of the privilege, Tribe explains, is the state secrets privilege invoked by U.S. Presidents, beginning with Washington, on the ground that the information is of such nature that its disclosure would subvert crucial military or diplomatic objectives. Another variety is the informers University of Santo Tomas privilege, or the privilege of the Government not to disclose the identity of persons who furnish information of violations of law to Faculty of Civil Law officers charged with the enforcement of that law. Finally, a generic privilege for internal deliberations has been said to attach to intragovernmental documents reflecting Bar Review 2010 advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated. How about in the Philippines itself? In this jurisdiction, the doctrine of executive privilege was recognized by this Court in Almonte v. Vasquez. Almonte used the term in reference to the same privilege subject of Nixon. It quoted the following portion of the Nixon decision which explains the basis for the privilege: The expectation of a President to the confidentiality of his conversations and correspondences, likeLibrary Of Liberties vis--vis An Arsenal Of Armsexample, has all the A the claim of confidentiality of judicial deliberations, for values to which we accord deference for the privacy of all citizens and, added to those values, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in
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Presidential decision-making. A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. These are the considerations justifying a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of government and inextricably rooted in the separation of powers under the Constitution. So what now? From the above discussion on the meaning and scope of executive privilege, both in the United States and in this jurisdiction, a clear principle emerges. Executive privilege, whether asserted against Congress, the courts, or the public, is recognized only in relation to certain types of information of a sensitive character. While executive privilege is a constitutional concept, a claim thereof may be valid or not depending on the ground invoked to justify it and the context in which it is made. Noticeably absent is any recognition that executive officials are exempt from the duty to disclose information by the mere fact of being executive officials. Indeed, the extraordinary character of the exemptions indicates that the presumption inclines heavily against executive secrecy and in favor of disclosure. Further on, the Court observed: While there is no Philippine case that directly addresses the issue of whether executive privilege may be invoked against Congress, it is gathered from Chavezv. PEA that certain information in the possession of the executive may validly be claimed as privileged even against Congress. Thus, the case holds: There is no claim by PEA that the information demanded by petitioner is privileged information rooted in the separation of powers. The information does not cover Presidential conversations, correspondences, or discussions during closed-door Cabinet meetings which, like internal-deliberations of the Supreme Court and other collegiate courts, or executive sessions of either house of Congress, are recognized as confidential. This kind of information cannot be pried open by a co-equal branch of government. A frank exchange of exploratory ideas and assessments, free from the glare of publicity and pressure by interested parties, is essential to protect the independence of decision-making of those tasked to exercise Presidential, Legislative and Judicial power. Further, to emphasize that executive privilege refers to information and not to persons, since E.O. 464 ostensibly referred officials and employees, the Court noted: En passant, the Court notes that Section 2(b) of E.O. 464 virtually states that executive privilege actually covers persons. Such is a misuse of the doctrine. Executive privilege, as discussed above, is properly invoked in relation to specific categories of information and not to categories of persons. In light, however, of Sec 2(a) of E.O. 464 which deals with the nature, scope and coverage of executive privilege, the reference to persons being covered by the executive privilege may be read as an abbreviated way of saying that the person is in possession of informationUniversityjudgment of the head of office concerned, privileged as which is, in the of Santo Tomas Faculty of Civil Law defined in Section 2(a). In consequence, The claim of privilege under Section 3 of E.O. 464 in relation to Section 2(b) is thus invalid per se. It is not asserted. It is merely implied. Instead of providing precise Bar Review 2010 and certain reasons for the claim, it merely invokes E.O. 464, coupled with an announcement that the President has not given her consent. It is woefully insufficient for Congress to determine whether the withholding of information is justified under the circumstances of each case. It severely frustrates the power of inquiry of Congress. In fine, Section 3 and Section 2(b) of E.O. 464 must be invalidated. Noting the exceptional and personal nature of Executive privilege, the Court found it essential to limit to the President the power to invoke the privilege. She may of course authorize the Executive Secretary to invoke A Library Of Liberties in which case the Executive Secretary must state that the the privilege on her behalf, vis--vis An Arsenal Of Arms authority is By order of the President, which means that he personally consulted with her. The privilege being an extraordinary power, it must be wielded only by the highest official in the executive hierarchy.
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In other words, the President may not authorize her subordinates to exercise such power. How is the right to information implicated in all of these? E.O 464 is concerned only with the demands of Congress for the appearance of executive officials in the hearings conducted by it, and not with the demands of citizens for information pursuant to their right to information on matters of public concern. Petitioners are not amiss in claiming, however, that what is involved in the present controversy is not merely the legislative power of inquiry, but the right of the people to information. There are, it bears noting, clear distinctions between the right of Congress to information which underlies the power of inquiry and the right of the people to information on matters of public concern. For one, the demand of a citizen for the production of documents pursuant to his right to information does not have the same obligatory force as a subpoena duces tecum issued by Congress. Neither does the right to information grant a citizen the power to exact testimony from government officials. These powers belong only to Congress and not to an individual citizen. Thus, while Congress is composed of representatives elected by the people, it does not follow, except in a highly qualified sense, that in every exercise of its power of inquiry, the people are exercising their right to information. To the extent that investigations in aid of legislation are generally conducted in public, however, any executive issuance tending to unduly limit disclosures of information in such investigations necessarily deprives the people of information which, being presumed to be in aid of legislation, is presumed to be a matter of public concern. The citizens are thereby denied access to information which they can use in formulating their own opinions on the matter before Congress opinions which they can then communicate to their representatives and other government officials through the various legal means allowed by their freedom of expression. In brief, the impairment of the right of the people to information as a consequence of E.O. 464 is, therefore, just as direct as its violation of the legislatures power of inquiry. Moreover, even as E.O. 464 applies only to officials of the executive branch, it does not follow that the same is exempt from the need for publication. Since the subject matter of said executive issuance is a matter of public interest which any member of the body politic may question in the political forums or, if he is a proper party, even in courts of justice, logic dictates that the challenged order must be covered by the publication requirement. As explained above, E.O. 464 has a direct effect on the right of the people to information on matters of public concern. It is, therefore, a matter of public interest which members of the body politic may question before this Court. Due process thus requires that the people should have been apprised of this issuance before it was implemented. Silence, gag orders and news blackouts may indeed be an effective way to control minds and consequences specially if there is really something that one may be trying to conceal from public view. 2. Neri v. Senate Committee on Public AccountabilityTomas University of Santo and Investigations (Blue Ribbon), 549 SCRA 77 (2008) Faculty of Civil Law Following the pronouncements in Senate v. Ermita, this case of Neri puts to actual application what Bar Review 2010 were said in the former. Neri, in response to the Senate Committees demands that he answer three (3) questions (1) whether the President followed up on the NBN project, (2) whether Neri was dictated upon to prioritize ZTE, and, (3) whether the president said go ahead and approve the project after being told about the bribe attempt by former COMELEC Chairman Benjamin Abalos invoked executive privilege, the Executive Secretary advising the Senate Committee of the same by order of the President. In the meantime, on 6 March 2008, Memorandum Circular No. 151 revoked E.O. 464. Did that affect the invocation of executive privilege? No, it did not in any way diminish our concept of executive privilege.A Library Of Liberties vis--vis An Arsenal Of Arms This is because this concept has Constitutional underpinnings.
On executive privilege itself, the Court distinguished between presidential communications
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privilege and deliberative process privilege. Presidential communications privilege applies to decision-making of the President while, the deliberative process privilege, to decision-making of executive officials. The first is rooted in the constitutional principle of separation of power and the Presidents unique constitutional role; the second on common law privilege. Unlike the deliberative process privilege, the presidential communications privilege applies to documents in their entirety, and covers final and post-decisional materials as well as pre-deliberative ones. As a consequence, congressional or judicial negation of the presidential communications privilege is always subject to greater scrutiny than denial of the deliberative process privilege. In this regard, the claim of executive privilege is highly recognized in cases where the subject of inquiry relates to a power textually committed by the Constitution to the President, such as the area of military and foreign relations. Under our Constitution, the President is the repository of the commander-in-chief, appointing, pardoning, and diplomatic powers. Consistent with the doctrine of separation of powers, the information relating to these powers may enjoy greater confidentiality than others. So to what extent may legislative inquiries be allowed into matters that may be claimed to be within executive privilege? The courts are enjoined to resolve the competing interests of the political branches of the government in the manner that preserves the essential functions of each Branch. Here, the record is bereft of any categorical explanation from respondent Committees to show a compelling or critical need for the answers to the three (3) questions in the enactment of a law. Instead, the questions veer more towards the exercise of the legislative oversight function under Section 22 of Article VI rather than Section 21 of the same Article. Senate v. Ermita ruled that the the oversight function of Congress may be facilitated by compulsory process only to the extent that it is performed in pursuit of legislation. It is conceded that it is difficult to draw the line between an inquiry in aid of legislation and an inquiry in the exercise of oversight function of Congress. In this regard, much will depend on the content of the questions and the manner the inquiry is conducted. And in relation to right of the people to information, the Court cautioned: The members of respondent Committees should not invoke as justification in their exercise of power a right properly belonging to the people in general. This is because when they discharge their power, they do so as public officials and members of Congress. In his dissenting opinion, the Chief Justice focused on possible conflict between the demands of transparency in a democracy and need for governmental secrecy. The doctrine of executive privilege is tension between disclosure and secrecy in a democracy. He also observed that [t]he history of executive privilege shows that the privilege is strongest when used not out of a personal desire to avoid culpability, but based on a legitimate need to protect the Presidents constitutional mandate University of Santo Tomas to execute the law, to uphold prudential separation of powers, and above all, to promote the public Faculty of Civil Law interest. How then to accommodate the conflict between executive privilege and demand for information from Congress? He suggested the use of the function impairment test. By this test, the Bar Review 2010 Court weighs how the disclosure of the withheld information would impair the Presidents ability to perform his constitutional duties more than nondisclosure would impair the other branchs ability to perform its constitutional functions. Here, it is the Courts task to balance whether the disclosure of the disputed information impairs the Presidents ability to perform her constitutional duty to execute the laws more than non-disclosure would impair the respondent Senate Committees ability to perform their constitutional function to enact laws. This begins with a recognition that Presidential communications are presumptively privileged. And, in this regard, [t]he more A Library Of Liberties vis--vis An Arsenal Of Arms concentrated power is in the President, the greater the need for confidentiality and the stronger the presumption; contrariwise, the more shared or diffused the power is with other branches or agencies
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of government, the weaker the presumption. To the Chief Justice, it is clear that [Neris] invocation of the Presidential communications privilege is based on a general claim of a chilling effect on the Presidents performance of her functions if the three questions are answered. The general claim is unsubstantiated by specific proofs that the performance of the functions of the President will be adversely affected in a significant degree. And, this is affected by the fact that the matter inquired into is about a foreign loan. We accord Presidential communications a presumptive privilege but the strength of this privilege is weakened by the fact that the subject of the communication involves a contract with a foreign loan. The power to contract foreign loans is a power not exclusively vested in the President, but is shared with the Monetary Board (Central Bank). 3. Sabio v. Gordon, 504 SCRA 704 (2006) Section 4 (b) of E.O. No. 1 No member or staff of the Commission shall be required to testify or produce evidence in any judicial, legislative or administrative proceeding concerning matters within its official cognizance has been repealed by the 1987 Constitution, particularly 21, Art. VI (power of legislative inquiry), so declared the Court in this case. [T]he conduct of inquiries in aid of legislation is not only intended to benefit Congress but also the citizenry. The people are equally concerned with this proceeding and have the right to participate therein in order to protect their interests. The extent of their participation will largely depend on the information gathered and made known to them. In other words, the right to information really goes hand-in-hand with the constitutional policies of full public disclosure and honesty in the public service. It is meant to enhance the widening role of the citizenry in governmental decision-making as well as in checking abuse in the government. The cases of Taada v. Tuvera and Legaspi v. Civil Service Commission have recognized a citizens interest and personality to enforce a public duty and to bring an action to compel public officials and employees to perform that duty. 4. Akbayan CitizensAction Party v. Aquino, 558 SCRA 468 (2008) The Court reiterated here what it earlier held in an extended unpublished resolution in Peoples Movement for Press Freedom (PMPF) v. Manglapus, G.R. No. 84642 (13 September 13, 1988) the privileged character of diplomatic negotiations has been recognized in this jurisdiction. Here, what is involved is the Japan-Philippine Economic Partnership Agreement (JPEPA). The Court held: Applying the principles adopted in PMPF v. Manglapus, it is clear that while the final text of the JPEPA may not be kept perpetually confidential since there should be ample opportunity for discussion before [a treaty] is approved the offers exchanged by the parties Tomas negotiations continue to be University of Santo during the privileged even after the JPEPA Faculty of It is reasonable to conclude that the Japanese is published. Civil Law representatives submitted their offers with the understanding that historic confidentiality would govern the same. Disclosing these offers could impair the 2010 of the Philippines to deal not only with Bar Review ability Japan but with other foreign governments in future negotiations. A ruling that Philippine offers in treaty negotiations should now be open to public scrutiny would discourage future Philippine representatives from frankly expressing their views during negotiations. While, on first impression, it appears wise to deter Philippine representatives from entering into compromises, it bears noting that treaty negotiations, or any negotiation for that matter, normally involve a process of quid pro quo, and oftentimes negotiators have to be willing to grant concessions in an area of lesser importance in order to obtain more favorable terms in an vis--vis An Arsenal Of Arms Nevertheless, the A Library Of Liberties area of greater national interest. Court added that such privilege is only presumptive. The Court also noted that the ruling in PMPF v. Manglapus is grounded more on the nature of treaty negotiations as such than on a particular
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socio-political school of thought. It was also noted that [t]he diplomatic negotiations privilege bears a close resemblance to the deliberative process and presidential communications privilege. It may be readily perceived that the rationale for the confidential character of diplomatic negotiations, deliberative process, and presidential communications is similar, if not identical. The privilege for diplomatic negotiations is meant to encourage a frank exchange of exploratory ideas between the negotiating parties by shielding such negotiations from public view. Similar to the privilege for presidential communications, the diplomatic negotiations privilege seeks, through the same means, to protect the independence in decision-making of the President, particularly in its capacity as the sole organ of the nation in its external relations, and its sole representative with foreign nations. And, as with the deliberative process privilege, the privilege accorded to diplomatic negotiations arises, not on account of the content of the information per se, but because the information is part of a process of deliberation which, in pursuit of the public interest, must be presumed confidential. Clearly, the privilege accorded to diplomatic negotiations follows as a logical consequence from the privileged character of the deliberative process. Distinguishing treaty-making from contract negotiations, the Court noted that Chavez v. PEA suffices to show that the doctrine in both that case and Chavez v. PCGG with regard to the duty to disclose definite propositions of the government does not apply to diplomatic negotiations. It follows from this ruling that even definite propositions of the government may not be disclosed if they fall under recognized exceptions. The privilege for diplomatic negotiations is clearly among the recognized exceptions, for the footnote to the immediately quoted ruling cites PMPF v. Manglapus itself as an authority. So does it mean that the seal of confidentiality could never be broken? It can be, but that would be the exception. We maintain then that when the Executive has already shown that an information is covered by executive privilege, the party demanding the information must present a strong showing of need, whether that party is Congress or a private citizen. 5. Hilado v. Reyes, 496 SCRA 282 (2006) This involves the right to inspect the court records in an estate proceeding. In resolving the case, the Court expounded on the nuances of the right to information with regard to court records. The term judicial record or court record does not only refer to the orders, judgment or verdict of the courts it comprises the official collection of all papers, exhibits and pleadings filed by the parties, all processes issued and returns made thereon, appearances, and word-for-word testimony which took place during the trial and which are in the possession, custody, or control of the judiciary or of the University of Santo Tomas courts for purposes of rendering court decisions. The interest of the public hinges on its right to Faculty of Civil Law transparency in the administration of justice, to the end that it will serve to enhance the basic fairness of the judicial proceedings, safeguard Bar Review 2010 the integrity of the fact-finding process, and foster an informed public discussion of public affairs. Accordingly, justice requires that all should have free access to the opinions of judges and justices, and it would be against sound public policy to prevent, suppress or keep the earliest knowledge of these from the public. In fine, once a particular information has been determined to be of public concern, the accessory right of access to official records, including judicial records, becomes available.
There is a difference, however, between court orders or judgments and the parties pleadings and A the same. Unlike court orders and decisions, pleadings and other whatever may go with Library Of Liberties vis--vis An Arsenal Of Arms documents filed by parties to a case need not be matters of public concern or interest. Information regarding the financial
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standing of a person at the time of his death and the manner by which his private estate may ultimately be settled is not a matter of general, public concern or one in which a citizen or the public has an interest by which its legal rights or liabilities may be affected. If the information sought is not a matter of public concern or interest, denial of access thereto does not violate the constitutional right to information. The long and short of it? As long then as any party, counsel or person has a legitimate reason to have a copy of court records and pays court fees, a court may not deny access to such records. 6. People v. Cabalquinto, 502 SCRA 419 (2006) It is normally the case that the names of the parties involved in a case, from the plaintiffs to defendants, to accused and the victims, are identified in the reports of cases which are disseminated for everyone to read. However, in Cabalquinto the Court adopted a new policy in regard to crimes involving violence to women and their children. After considering the inputs from the Office of the Solicitor General (OSG), the Integrated Bar of the Philippines (IBP), National Press Club (NPC), Philippine Press Institute (PPI), Kapisanan ng mga Brodkaster sa Pilipinas (KBP) and the Department of Social Welfare and Development (DSWD), the Court declared: Taking all these opinions into account and in view of recent enactments98 which unequivocally express the intention to maintain the confidentiality of information in cases involving violence against women and their children, in this case and henceforth, the Court shall withhold the real name of the victim-survivor and shall use fictitious initials instead to represent her. Likewise, the personal circumstances of the victims-survivors or any other information tending to establish or compromise their identities, as well those of their immediate family or household members, shall not be disclosed. Thus, if you now read initials that sound like battery sizes or advertisements comparing a named brand with their competitors, you would understand why.99 7. Air Philippines Corporation v. Pennswell, Inc., 540 SCRA 215 (2007) Can a party demand the other party to disclose the ingredients and chemical components of the latters products on the assertion that the former had been misled into buying those items on the fraudulent claim that they are different from earlier ones it had earlier bought, i.e., that they are really the same but presented and packaged as different? This basically is the query in this case. This is a collection suit for the purchase price of certain items. Air Philippines refused to pay, claiming fraud as to certain items lubricants, grease and fluid being mislabeled as belonging to a new line but were in truth and in fact, identical with products it had previously purchased. They merely carried merely altered names and labels, or so Air Philippines asserted. In the collection suit filed by University of Santo Tomas Pennswell, Air Philippines moved to compel the former to give a detailed list of the ingredients and chemical components to prove its Faculty of Civil Law defense. Pensswell opposed, claiming that the data sought to be disclosed involve trade secrets. The Court agreed. That trade secrets are of a privileged nature is beyond Bar Review 2010 quibble. The protection that this jurisdiction affords to trade secrets is evident in our laws. Further, the Court said: Jurisprudence has consistently acknowledged the private character of trade secrets. There is a privilege not to disclose ones trade secrets. Foremost, this Court has declared that trade secrets and banking transactions are among the recognized restrictions to the right of the people to information as embodied in the Constitution.
Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act (R.A. No. 7610), Anti-Violence Against A Library Of Liberties vis--vis An Arsenal Of Arms Women and Their Children Act of 2004 (R.A. No. 9262), and, Rule on Violence Against Women and their Children (A.M. No. 04-10-11-SC effective 15 November 2004).
99
98
In People v. Rentoria, 533 SCRA 708 (2007), the Court also decreed that the exact addresses of the victims should be deleted.
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So is the confidentiality of trade secrets absolute? No, the privilege is not absolute; the trial court may compel disclosure where it is indispensable for doing justice. We do not, however, find reason to except respondents trade secrets from the application of the rule on privilege. The revelation of respondents trade secrets serves no better purpose to the disposition of the main case pending with the RTC, which is on the collection of a sum of money. As can be gleaned from the facts, petitioner received respondents goods in trade in the normal course of business. To be sure, there are defenses under the laws of contracts and sales available to petitioner. On the other hand, the greater interest of justice ought to favor respondent as the holder of trade secrets. If we were to weigh the conflicting interests between the parties, we rule in favor of the greater interest of respondent. Trade secrets should receive greater protection from discovery, because they derive economic value from being generally unknown and not readily ascertainable by the public. To the mind of this Court, petitioner was not able to show a compelling reason for us to lift the veil of confidentiality which shields respondents trade secrets. 8. GMA Network, Inc. v. Movie and Television Review and Classification Board, 514 SCRA 191 (2007) This highlights the importance not only of publication but also of submission and registration of administrative rules and regulations to the Office of the National Administrative Register (ONAR). GMA Network aired, through EMC Channel 27, Muro Ami: The Making without first securing a permit from MTRCB pursuant to 7, PD 1986. For this the MRTCB imposed on said broadcast company on 7 January 2000 the penalty of suspension of broadcast for seven (7) days, which penalty GMA complied with. Nevertheless, GMA questioned the authority of MTRCB to require prior submission. The Court, harking back to what it said in MTRCB v. ABS-CBN, 448 SCRA 575 (2005), held that the MTRCB is empowered to screen, review and examine all motion pictures and television programs including publicity materials, including a public affairs program described as a variety of news treatment, a cross between pure television news and news-related commentaries, analysis and/or exchange of opinions. Nevertheless, the Court held that while MTRCB had jurisdiction over the subject program, Memorandum Circular 98-17, which was the basis of the suspension order, was not binding on GMA since it was not registered yet with the ONAR as of 27 January 2000. The Administrative Code of 1987, particularly Section 3 thereof, expressly requires each agency to file with the Office of the National Administrative Register (ONAR) of the University of the Philippines Law Center three certified copies of every rule adopted by it. Administrative issuances which are not published or filed with the ONAR are ineffective and may not be enforced. Being ineffective and unenforceable, GMA was not bound by said circular and should not have been meted the sanction provided thereunder. It leaves a bad taste when someone is told that he should not have been punished at all, but then it University of Santo Tomas is conveyed to him when he had already served of sentence. Faculty his Civil Law The need for filing with the ONAR was likewise highlighted once more in Republic v. Pilipinas Shell Bar Review 2010 Petroleum Corporation, 550 SCRA 680 (2008), and Securities and Exchange Commission v. PICOP Resources, Inc., 566 SCRA 451 (2008).
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K. RIGHT OF ASSOCIATION
Man being a social animal necessarily finds it part of his natural inclinations that he associate with A Library Of Liberties vis--vis An Arsenal Of Arms others. He would not relish the idea of simply being an island all by himself, isolated from the rest or the mainland. And the act of so joining others could be a form of expression you link up with people
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who are likely to share your interests, sentiments, philosophy, ideology or affection.100 And, the right to associate may also include as a necessary corollary, the right not to associate, though such latter right may not justify a lawyer in refusing to pay his dues to the IBP.101 The right to associate may also mean that an organization would have the right to choose who its members are, excluding or expelling those whose personality traits may run into conflict with the groups philosophy,102 or refusing participation to a group in a parade where that groups message would not be in conformity with the organizers own idea of what the activity is all about.103
L. EMINENT DOMAIN
While the government may negotiate with the owner for the acquisition of the latters properties, such a procedure may not always result in a successful transaction, however, especially if there is need for more expeditious action, or, the owner may simply be disinclined to sell. Thus, this coercive power of the government to take property even if the owner opposes, provided the same is for public use and there is payment of just compensation. Accordingly, questions on expropriation may deal with issues of necessity,104 or arbitrary exercise,105 as well as the justness and timeliness of the payment for the property taken.106 As for judicial determination of just compensation, the Court has reverted to the old rule that the same is a judicial function, not one to be simply determined by looking at what is indicated in the tax declaration.107 With regard to public use, the same has also been construed to have a more expansive meaning so as to cover certain purposes which could not have been included in the past, such as tourism,108 and setting up the birthplace of a known religious leader as a National Historical Landmark.109 Also, considering that the power of eminent domain involves the strong arm of the law to compel an unwilling person to part with his property, extreme caution is called for in resolving complaints for condemnation when a serious doubt arises regarding the supposed public use of property, the doubt should be resolved in favor of the property owner and against the State,110 or, that eminent domain cases are to be strictly construed against the expropriator.111 This perspective would make it easier to understand the Courts recent rulings mandating payment within five (5) years from finality of the
100 101 102
See, e.g., Griswold v. Connecticut, 381 U.S. 479 (1965) In re Edillon, 84 SCRA 554 (1978)
See Boy Scouts of America v. Dale, 530 U.S. 640 (2000), where the U.S. Supreme Court upheld the right of the Boy Scouts to exclude a homosexual. See also Ordinario v. People, 428 SCRA 773 (2004), which involves a teacher in Boy Scout who was convicted of sexual assault for putting his organ into the mouth of a male ten-year old pupil.
103 104 105 106
Hurley v. Irish American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995) City of Manila v. Chinese Community of Manila, 40 Phil. 349 (1919) De Knecht v. Bautista, 100 SCRA 660 (1980)
The interest rate has been set at twelve per centum (12%) per annum, to be computed from the time of taking to the date of payment, which rate should help eliminate the constant fluctuation and inflation of the value of currency over time. (Republic v. Court of Appeals, 383 SCRA 611 [2002]; Reyes v. National Housing Authority, 395 SCRA 494 [2003]; Republic v. Court of Appeals., 454 SCRA 516 [2005])
107 108 109 110 111
EPZA v. Dulay, 149 SCRA 305 (1987) Heirs of Juancho Ardona v. Reyes, 125 SCRA 220 (1983)
A Appeals, 252 SCRA 412 (1996) Manosca v. Court ofLibrary Of Liberties vis--vis
An Arsenal Of Arms
Barangay Sindalan, San Fernando, Pampanga v. Court of Appeals, 518 SCRA 649 (2007) San Roque Realty and Development Corporation v. Republic, 532 SCRA 493 (2007)
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judgment of expropriation, otherwise the owner would be entitled to demand recovery of possession,112 as well as the repurchase of the property when the purpose for which it was expropriated is abandoned.113 Further, note that the exercise of the power of eminent domain is not subject to the strictures of res judicata or the principle of law of the case. The mere fact that the government or its agencies may not have prevailed in the first attempt to expropriate a property does not preclude them from doing so again, making adjustments or rectifications in whatever may have been the earlier deficiencies.114 1. Manotok Realty, Inc. v. CLT Realty Development Corporation, 582 SCRA 583 (2009) Here, the Court spoke of the cleansing effect of expropriation proceedings. The fact of expropriation is extremely significant, for titles acquired by the State by way of expropriation are deemed cleansed of whatever previous flaws may have attended these titles. . . . In an [in] rem proceeding, condemnation acts upon the property. After condemnation, the paramount title is in the public under a new and independent title; thus, by giving notice to all claimants to a disputed title, condemnation proceedings provide a judicial process for securing better title against all the world than may be obtained by voluntary conveyance. In this particular case, the Court noted that [i]n annulling the Manotok titles, focus was laid on the alleged defects of TCT No. 4211 issued in September of 1918. However, TCT No. 4211 was issued decades before the property was expropriated. Thus, any and all defects that may have attended that particular title would have been purged when the property covered by it was subsequently acquired by the State through eminent domain. 2. Republic v. Phil-Ville Development and Housing Corporation, 525 SCRA 776 (2007) Because an order of expropriation merely determines the authority to exercise the power of eminent domain and the propriety of such exercise, its issuance does not hinge on the payment of just compensation. Thus, payment of just compensation is not a condition sine qua non to the issuance of an order of expropriation it is the transfer of title to the land expropriated that must wait until the indemnity is actually paid. 3. Ortega v. City of Cebu, SCRA (G.R. Nos. 181562-63, and 181583-84, 2 October 2009) Where the expropriation case had long been final and executory, both the Order of expropriation and the Order fixing just compensation can no longer be modified the expropriator can no longer withdraw from the expropriation proceedings.
University of Santo Tomas Also, the expropriation court cannot, by itself, order the expropriating local government to enact an Faculty of Civil Law appropriation ordinance in order to satisfy its judgment the land owner must file a separate mandamus case for that purpose.
4. Manapat v. Court of Appeals, 536 SCRA 32 (2007)
Bar Review 2010
[T]he foundation of the right to exercise eminent domain is genuine necessity, and that necessity must be of a public character. As a rule, the determination of whether there is genuine necessity for the exercise is a justiciable question. However, when the power is exercised by the Legislature, the question of necessity is essentially a political question.
112 113 114
Republic v. Lim, A Library (2005) 462 SCRA 265 Of Liberties
Mactan-Cebu International Airport Authority v. Lozada, Sr., SCRA (G.R. No. 176625, 25 February 2010) See Municipality of Paraaque v. V.M. Realty Corporation, 292 SCRA 678 (1998)
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As for the concept of public use, the same is a flexible and evolving concept influenced by changing conditions. At present, it may not be amiss to state that whatever is beneficially employed for the general welfare satisfies the requirement of public use. It now includes the broader notion of indirect public benefit or advantage, including in particular, urban land reform and housing. If a person might be one of the intended beneficiaries of the so-called socialized housing, does he have the right to object to the expropriation of the land that he occupies on the contention that it would be incongruous for government to take his land away from him only to give it back to him? The Court said that [t]his contention sadly fails to comprehend the public purpose for the taking under the socialized housing program. The parcels of land subject of the expropriation are, precisely, being taken so that they can be subdivided into much smaller lots at an average of 66.5 square meters per lot for distribution to deserving dwellers in the area. Upon the completion of the project, Manapat, and those similarly situated as he, cannot assert any right to be awarded the very same lots they currently occupy, nor be entitled to the same area of the land they now have. 5. Masikip v. City of Pasig, 479 SCRA 391 (2006) The Court declared that [j]udicial review of the exercise of eminent domain is limited to the following areas of concern: (a) the adequacy of the compensation, (b) the necessity of the taking, and (c) the public use character of the purpose of the taking. As regards the resolution of the issue of necessity here, it said: Where the taking by the State of private property is done for the benefit of a small community [such as a homeowners association] which seeks to have its own sports and recreational facility, notwithstanding that there is such a recreational facility only a short distance away, such taking cannot be considered to be for public use. Its expropriation is not valid. The members of the association are apparently desirous of having their own private playground and recreational facility. The purpose is not clearly and categorically public. The Court also sympathized with the plight of persons whose property are sought to be expropriated. The right to own and possess property is one of the most cherished rights of men. It is so fundamental that it has been written into organic law of every nation where the rule of law prevails. Unless the requisite of genuine necessity for the expropriation of ones property is clearly established, it shall be the duty of the courts to protect the rights of individuals to their private property. Important as the power of eminent domain may be, the inviolable sanctity which the Constitution attaches to the property of the individual requires not only that the purpose for the taking of private property be specified. The genuine necessity for the taking, which must be of a public character, must also be shown to exist.
Faculty of Civil Law In this case a barangay sought to expropriate private lands purportedly to be used as a feeder road. It was shown by the land owners, however, that their lands would actually be used to benefit only the Bar Review 2010 homeowners of a private subdivision in the place, whose developer would be excused from complying with its obligation to secure a right-of-way for its lot buyers. The Court held, among others that: Expropriation, if misused or abused, would trench on the property rights of individuals without due process of law. Further, it declared that the failure of the subdivision owner to provide an access road does not shift the burden to barangay itself. To deprive the private persons of their property instead of compelling the subdivision owner to comply with its obligation under the law is an abuse of the power of eminent domain and is patently illegal, which misuse of public funds for a private purpose could A Library Of Liberties vis--vis An Arsenal Of Arms amount to a possible case of malversation.
6. Barangay Sindalan, San Fernando, Pampanga v. Court of Appeals, 518 SCRA 649 (2007) University of Santo Tomas
The Court added: Taking an individuals private property is a deprivation which can only be
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justified by a higher goodwhich is public useand can only be counterbalanced by just compensation. Without these safeguards, the taking of property would not only be unlawful, immoral, and null and void, but would also constitute a gross and condemnable transgression of an individuals basic right to property as well. For this reason, courts should be more vigilant in protecting the rights of the property owner and must perform a more thorough and diligent scrutiny of the alleged public purpose behind the expropriation. Extreme caution is called for in resolving complaints for condemnation, such that when a serious doubt arises regarding the supposed public use of property, the doubt should be resolved in favor of the property owner and against the State. 7. Republic v. Holy Trinity Realty Development Corp., 551 SCRA 303 (2008) In case of expropriation under R.A. No. 8974, if the payment has been deposited in the bank in the meantime, to whom should the interest belong? The interest that accrues in the meantime goes to the owner since the principal amount was supposed to have been directly paid to him in the first place. Under Section 4 of Republic Act No. 8974, the implementing agency of the government pays just compensation twice: (1) immediately upon the filing of the complaint, where the amount to be paid is 100% of the value of the property based on the current relevant zonal valuation of the BIR (initial payment); and (2) when the decision of the court in the determination of just compensation becomes final and executory, where the implementing agency shall pay the owner the difference between the amount already paid and the just compensation as determined by the court (final payment). 8. Tiongson v. National Housing Authority, 558 SCRA 56 (2008) In this case the NHA took possession of the properties way back in 1978 pursuant to P.D. Nos. 1669 and 1670. Subsequently, however, in Manotok v. National Housing Authority, 150 SCRA 89 (1987), said decrees were declared unconstitutional. Following that decision, the NHA filed expropriation proceedings, also in 1987. What should be the reckoning date for the computation of just compensation 1978 or 1987? Where the initial taking of a property subject to expropriation was by virtue of a law which was subsequently declared unconstitutional, just compensation is to be determined as of the date of the filing of the complaint, not the date of taking. 9. Nepomuceno v. City of Surigao, 560 SCRA 41 (2008) Here, there was taking in 1960 of land for use a city road, without an expropriation proceeding being first instituted. Since no amicable settlement was effected, the owners subsequently filed years later an action for recovery or payment of market value, and they claimed valuation at time of actual payment. When is the reckoning date? The Court held that where actual taking is made without the benefit of expropriation proceedings andUniversity of Santothe possession of the property prior to the the owner seeks recovery of Tomas filing of expropriation proceedings, Faculty of the property at the time of taking that is controlling it is the value of Civil Law for purposes of compensation. Thus, the value of the property must be ascertained as of 1960 when it was actually taken. It is as of that timeBar the real measure of their loss may fairly be adjudged. The that Review 2010 value, once fixed, shall earn interest at the legal rate until full payment is effected, conformably with other principles laid down by case law. Can exemplary damages be recovered? Exemplary damages would have been appropriate had it been shown that the city government indeed misused its power of eminent domain. In this case, both the RTC and the CA found there was no socially deleterious action or misuse of power to speak of. 10. FiguracionA Library Of Liberties vis--vis An Arsenal Of Arms v. Libi, 539 SCRA 50 (2007) This case involves an expropriation for a local road and the subsequent decision of the City of Cebu
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to reconvey an unused portion of the same. On the right of a local government unit to sell roads, the Court declared that, as a general rule, local roads used for public service are considered public property under the absolute control of Congress; hence, local governments have no authority to control or regulate their use. However, under Section 10, Chapter II of the Local Government Code, Congress delegated to political subdivisions some control of local roads. For a valid reconveyance, one of the requirements is a showing that the former owner or his successors-in-interest has the right to repurchase said property. As to the right to repurchase itself, it went back to Ferry v. Municipality of Cabanatuan, 42 Phil 28, 29-30 (1921): If, for example, land is expropriated for a particular purpose, with the condition that when that purpose is ended or abandoned the property shall return to its former owner, then, of course, when the purpose is terminated or abandoned the former owner reacquires the property so expropriated. . . . If, upon the contrary, however, the decree of expropriation gives to the entity a fee simple title, then, of course, the land becomes the absolute property of the expropriator, whether it be the State, a province, or municipality, and in that case the non-user does not have the effect of defeating the title acquired by the expropriation proceedings. Then it held that [t]he enunciated rule in Fery is still controlling to this day. However, in Moreno v. Mactan-Cebu International Airport Authority, we clarified that where there is preponderant evidence of the existence of a right to repurchase, the former owner of an expropriated property is entitled to exercise such option once the public purpose for which the local government initially intended the expropriated property is abandoned or not pursued. . . . [However,] where there is insufficient evidence that the former owners of expropriated properties were granted the right to repurchase the same, the latter may not insist on recovering their properties even when the public purpose for which said properties were expropriated is abandoned. 11. Mactan-Cebu International Airport Authority v. Lozada, Sr., SCRA (G.R. No. 176625, 25 February 2010) When property taken through eminent domain is no longer needed for the public purpose for which it was expropriated, does the former owner have the right to repurchase it? Generally, no. And this traces back to Fery v. Municipality of Cabanatuan.115 In this case of Mactan-Cebu, the Court revisited Fery and came up with a new rule. After noting that Fery was not decided pursuant to our now sacredly held constitutional right that private property shall not be taken for public use without just compensation, it proceeded to declare that [t]hese requirements partake of the nature of implied conditions that should be complied with to enable the condemnor to keep the property expropriated. More particularly, with respect to the element of public use, the expropriator should commit to use the property pursuant to the purpose stated in the petition for expropriation filed, failing which, it should file another petition for the University of Santo Tomas new purpose. If not, it is then incumbent upon the expropriator to return the said property to its private Faculty of Civil the judgment of expropriation suffers an owner, if the latter desires to reacquire the same. Otherwise,Law intrinsic flaw, as it would lack one indispensable element for the proper exercise of the power of eminent Bar Review 2010 domain, namely, the particular public purpose for which the property will be devoted. Accordingly, the private property owner would be denied due process of law, and the judgment would violate the property owners right to justice, fairness, and equity. Then, it held: In light of these premises, we now expressly hold that the taking of private property, consequent to the Governments exercise of its power of eminent domain, is always subject to the condition that the property be devoted to the specific public purpose for which it was taken. Corollarily, if this particular purpose or intent is not initiated or not at Anpursued, and isArms A Library Of Liberties vis--vis all Arsenal Of peremptorily abandoned,
115
42 Phil. 28 (1921).
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then the former owners, if they so desire, may seek the reversion of the property, subject to the return of the amount of just compensation received. In such a case, the exercise of the power of eminent domain has become improper for lack of the required factual justification. 12. National Power Corporation v. Purefoods Corporation, 565 SCRA 17 (2008) The rule that the market value is that sum of money which a person desirous but not compelled to buy, and an owner willing but not compelled to sell, would agree on as a price to be given and received therefor is modified where only a part of a certain property is expropriated in such a case the owner is not restricted to compensation for the portion actually taken but he is also entitled to recover the consequential damage, if any, to the remaining part of the property while, at the same time, from the total compensation must be deducted the value of the consequential benefits. 13. National Power Corporation v. Tiangco, 514 SCRA 674 (2007) Right-of-way easements, transmission lines, and just compensation. NPCs charter (Republic Act No. 6395) authorizes the corporation to acquire private property and exercise the right of eminent domain, and 3-A thereof, as inserted by PD 938, limits the easement fee to 10 percent of the market value of the land. If the NPC is interested only in acquiring an easement of right-of-way over a property and that ownership of the area over which the right-of-way will be established shall remain with the owner of the land, how much should it pay? NPC claimed that it should pay only an easement fee in an amount equivalent to ten per cent (10%) of the market value of the property as declared by the landowner or by the Municipal Assessor. In several cases, the Court struck down NPCs consistent reliance on Section 3-A of Republic Act No. 6395, as amended by Presidential Decree 938. True, an easement of a right-of-way transmits no rights except the easement itself, and the respondents would retain full ownership of the property taken. Nonetheless, the acquisition of such easement is not gratis. The limitations on the use of the property taken for an indefinite period would deprive its owner of the normal use thereof. For this reason, the latter is entitled to payment of a just compensation, which must be neither more nor less than the monetary equivalent of the land taken. While the power of eminent domain results in the taking or appropriation of title to, and possession of, the expropriated property, no cogent reason appears why said power may not be availed of to impose only a burden upon the owner of the condemned property, without loss of title and possession. However, if the easement is intended to perpetually or indefinitely deprive the owner of his proprietary rights through the imposition of conditions that affect the ordinary use, free enjoyment and disposal of the property or through restrictions and limitations that are inconsistent with the exercise of the attributes of ownership, Tomas introduction of structures or University of Santo or when the objects which, by their nature, create or increaseof Civil Law injury, death upon or destruction of Faculty the probability of life and property found on the land is necessary, then the owner should be compensated for the monetary equivalent of the land, . . . The Court likewise noted: The evidence suggests that NPCs transmission Bar Review 2010 line project that traverses the respondents property is perpetual, or at least indefinite, in nature. Moreover, not to be discounted is the fact that the high-tension current to be conveyed through said transmission lines evidently poses a danger to life and limb; injury, death or destruction to life and property within the vicinity. . . . Finally, if NPC were to have its way, respondents will continue to pay the realty taxes due on the affected portion of their property, an imposition that, among others, merits the rejection of NPCs thesis of payment of a mere percentage of the propertys actual value.
A Library Of Liberties vis--vis An eminent domain cases, When is the reckoning date for compensation purposes? InArsenal Of Arms the time of taking is the filing of the complaint, if there was no actual taking prior thereto. The landowner should be paid
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the value of the property as of the time of the filing of the complaint which is deemed to be the time of taking the property. It was certainly unfair for the trial court to have considered a property value several years behind its worth at the time the complaint. The landowner would be shortchanged, considering that, as a rule, land values enjoy steady upward movement. 14. National Power Corporation v. Ibrahim, 526 SCRA 149 (2007) If one were ever to feel that sinking feeling, that might as well as have been the situation here. From overhead wires, down to underground tunnels still about NPCs needs to expropriate pursuant to its mandate. How much to pay for the surface land affected by unseen subterranean tunnels? Underground tunnels 115 meters below surface were constructed by NAPOCOR way back in 1978, allegedly through stealth and without the landowners knowledge and consent, to be used for NPCs hydroelectric project in Lanao, siphoning water from Lake Lanao. The clueless owners only discovered them in 1992 when one owner (Maruhom) requested the Marawi City Water District for a permit to construct and/or install a motorized deep well and was turned down because such construction would cause danger to lives and property due to the presence of underground tunnels. When NPC was asked for payment, it claimed that the sub-terrain does not belong to surface land owners but is part of public dominion. Is it right? [T]he Court sustains the finding of the lower courts that the sub-terrain portion of the property similarly belongs to respondents. This conclusion is drawn from Article 437 of the Civil Code116 the ownership of land extends to the surface as well as to the subsoil under it. Registered landowners may even be ousted of ownership and possession of their properties in the event the latter are reclassified as mineral lands because real properties are characteristically indivisible. For the loss sustained by such owners, they are entitled to just compensation under the Mining Laws or in appropriate expropriation proceedings. How far up or down then the rights extend? The landowners right extends to such height or depth where it is possible for them to obtain some benefit or enjoyment, and it is extinguished beyond such limit as there would be no more interest protected by law. To NPCs contention that the underground tunnels in this case constitute an easement upon the property of the landowners which did not involve any loss of title or possession, the Court ruled: The manner in which the easement was created by petitioner, however, violates the due process rights of respondents as it was without notice and indemnity to them and did not go through proper expropriation proceedings. Petitioner could have, at any time, validly exercised the power of eminent domain to acquire the easement over respondents property as this power encompasses not only the taking or appropriation of title to and possession of the expropriated property but likewise covers even the imposition of a mere burden upon the owner of the condemned property. Significantly, though, landowners cannot be deprivedUniversity of Santo Tomas of their right over their land until expropriation proceedings are instituted in court. Further, the Court also observed that the last element of taking mentioned, i.e., that the entry Faculty of Civil Law into the property is under warrant or color of legal authority, was patently lacking, all because of the mistaken belief that the property formed part of the public dominion. Bar Review 2010 If NPC were to pay then, how much? In disregarding this procedure and failing to recognize respondents ownership of the sub-terrain portion, petitioner took a risk and exposed itself to greater liability with the passage of time. It must be emphasized that the acquisition of the easement is not without expense. The underground tunnels impose limitations on respondents use of the property for an indefinite period and deprive them of its ordinary use. Based upon the foregoing, respondents are clearly entitled to the payment of just compensation. Notwithstanding the fact that petitioner only A Library Of Liberties vis--vis An Arsenal Of Arms 116
The owner of a parcel of land is the owner of its surface and of everything under it, and he can construct thereon any works or make any plantations and excavations which he may deem proper, without detriment to servitudes and subject to special laws and ordinances.
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occupies the sub-terrain portion, it is liable to pay not merely an easement fee but rather the full compensation for land. This is so because in this case, the nature of the easement practically deprives the owners of its normal beneficial use. Respondents, as the owners of the property thus expropriated, are entitled to a just compensation which should be neither more nor less, whenever it is possible to make the assessment, than the money equivalent of said property. And which would be the price reckoning moment construction or discovery date? The Court said, date of discovery, otherwise to allow petitioner to use the date it constructed the tunnels as the date of valuation would be grossly unfair. First, it did not enter the land under warrant or color of legal authority or with intent to expropriate the same. Secondly, the improvements introduced by petitioner, namely, the tunnels, in no way contributed to an increase in the value of the land. Seen high up, or unseen deep down, NPC could not get away with it pay it must.
M.
CONTRACT CLAUSE
The weakest guarantee in the Bill of Rights, it is almost seen as a relic from days past where it must have had its grandeur. The Clause easily yields to the demands of police power such that the occasions in which it may prevail could more be the exception than the rule. The impairment clause is no longer inviolate; in fact, there are many who now believe that is an anachronism in the present-day society.117 Nevertheless, [w]hile it is true that the police power is superior to the impairment clause, the principle will apply only where the contract is so related to the public welfare that it will be considered congenitally susceptible to change by the legislature in the interest of the greater number. Most presentday contracts are of that nature.118 Insofar as the taxing power is concerned, it has also been observed that: In truth, the Contract Clause has never been thought as a limitation on the exercise of the States power of taxation save only where a tax exemption has been granted for a valid consideration.119 And, that the contractual tax exemptions, in the real sense of the term and where the non-impairment clause of the Constitution can rightly be invoked, are those agreed to by the taxing authority in contracts, such as those contained in government bonds or debentures, lawfully entered into by them under enabling laws in which the government, acting in its private capacity, sheds its cloak of authority and waives its governmental immunity. Tax exemptions of this kind may not be revoked without impairing the obligations of contracts. These contractual tax exemptions, however, are not to be confused with tax exemptions granted under franchises. A franchise partakes the nature of aTomas is beyond the purview of the University of Santo grant which non-impairment clause of the Constitution.120 of Civil Law Faculty 1. \ epanto Consolidated MiningBarv. WMC Resources Intl. Pty. Ltd., 507 SCRA 315 (2006) L Co. Review 2010 Retroactive application of a legal requirement may result in a violation of the Contract Clause. It is ingrained in jurisprudence that the constitutional prohibition on the impairment of the
117 118 119 120
Juarez v. Court of Appeals, 214 SCRA 475 (1992) National Development Company v. Philippine Veterans Bank, 192 SCRA 257 (1990) Tolentino v. Secretary of Finance, 235 SCRA 630 (1994)
Manila Electric Company v. Province of Laguna, 306 SCRA 750 (1999)
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obligation of contract does not prohibit every change in existing laws, and to fall within the prohibition, the change must not only impair the obligation of the existing contract, but the impairment must be substantial. . . . [A] law which changes the terms of a legal contract between the 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 terms, is law which impairs the obligation of a contract and is therefore null and void. Section 40 of the Philippine Mining Act of 1995 requiring the approval of the President with respect to assignment or transfer of FTAAs, if made applicable retroactively to the Columbio FTAA, would be tantamount to an impairment of the obligations under said contract as it would effectively restrict the right of the parties thereto to assign or transfer their interests in the said FTAA.
N.
RIGHTS OF SUSPECTS
A basket of rights that was refused recognition or parsimoniously applied by the Court in the past has now grown and expanded to afford protection greater than the text of the original. While the Supreme Court in the not-too-distant past refused to apply the Miranda doctrine121 in People v. Jose, 37 SCRA 450 (1971), and likewise did not recognize any retroactive application of the 1973 Constitution version of the Miranda warnings,122 the same is now really part of the easily-forgotten past. The doctrine has become firmly entrenched in law and jurisprudence, even constitutionalized at that.123 In regard to expanding the rights of suspects, take note of the newly minted Anti-Torture Act of 2009 (R.A. No. 9745 [2009]). It is meant to implement the guarantees in Section 12 of the Bill of Rights against torture and other related acts. It adds the right, among others, to be informed of ones right to demand physical examination by an independent and competent doctor of his/her own choice, which may waived, provided it is in writing and in the presence of counsel.124 The rights given to persons somehow thought of having committed a crime or those under custodial investigation a.k.a., suspects are meant to ensure that they are afforded the chance to exercise whatever protection is due them during criminal prosecutions. Thus, they are given the opportunity to exercise their privilege not to incriminate themselves, otherwise there would be no point keeping ones silence at trial if the damning statements had already been secured during the investigation. Then, to make sure that the person under investigation knows what that privilege of silence is all about, he is also given a chance to have the assistance of a lawyer. He may waive his rights, including the assistance of
121 122 123
University of Santo Tomas Faculty of Civil Law Magtoto v. Manguera, 63 SCRA 4 (1975)
Miranda v. Arizona, 384 U.S. 436 (1966)
In 2000, the U.S. Supreme Court revisited Miranda and came up with a declaration that Miranda was of constitutional moorings, a constitutional decision, which could not therefore be overturned by Congress as it represents the Courts reading of what the Constitution requires, at minimum. (Dickerson v. United States, 530 U.S. 428 [2000])
Bar Review 2010
SEC. 12. Right to Physical, Medical and Psychological Examination. Before and after interrogation, every person arrested, detained or under custodial investigation shall have the right to be informed of his/her right to demand physical examination by an independent and competent doctor of his/her own choice. If such person cannot afford the services of his/her own doctor, he/she shall be provided by the State with a competent and independent doctor to conduct physical examination. The State shall endeavor to provide the victim with psychological evaluation if available under the circumstances. If the person arrested is a female, she shall be attended to preferably by a female doctor. Furthermore, any person arrested, detained or under custodial investigation, including his/her immediate family, shall have the right to immediate access to proper and adequate medical treatment.
124
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Any person who does not wish to avail of the rights under this provision may knowingly and voluntarily waive such rights in writing, executed in the presence and assistance of his/her counsel.
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counsel, provided the same is done in the presence of a lawyer. In the language of the Fundamental Law, the lawyer must be competent and independent. He must be present from beginning to end, and his loyalty to the cause of his client must be beyond reproach. Then, also, the lawyer should not simply be a lawyer in form. He must also be so in substance, a real lawyer and not one who took up Law but never made it beyond the bar examinations.125 Moreover, nobody could take the place of a lawyer. In People v. Ordoo, 334 SCRA 673 (2000), since the place had no lawyers, the statement of the accused was taken in the presence of Parish Priest, Municipal Mayor, Chief of Police, other police officers, plus the wife and mother of one of the accused. The Court held the confession inadmissible. Even as it commended the police, it held that there is no substitute for lawyers. To the credit of the police, they requested the presence of the Parish Priest and the Municipal Mayor of Santol as well as the relatives of the accused to obviate the possibility of coercion, and to witness the voluntary execution by the accused of their statements before the police. Nonetheless, this did not cure in any way the absence of a lawyer during the investigation. R.A. 7438 does not propose that they appear in the alternative or as a substitute for counsel. How about media interviews? In People v. Endino, 352 SCRA 307 (2001), the Court advised trial courts not to simplistically admit such confessions. [B]ecause of the inherent danger in the use of television as a medium for admitting ones guilt, and the recurrence of this phenomenon in several cases, it is prudent that trial courts are reminded that extreme caution must be taken in further admitting similar confessions. For in all probability, the police, with the connivance of unscrupulous media practitioners, may attempt to legitimize coerced extrajudicial confessions and place them beyond the exclusionary rule by having an accused admit an offense on television. Such a situation would be detrimental to the guaranteed rights of the accused and thus imperil our criminal justice system. With the foregoing pronouncements of the Court relative to admissions or confessions made to media men, should it not also consider having the right to be advised of ones Miranda rights including the right to counsel to be done prior to any interviews made by the media? The right to counsel and the right not to incriminate oneself might become useless if the print and broadcast reporters are allowed to make the interviews even before the suspect had the opportunity to think for himself in a voluntary and an informed manner whether to speak or not. This element of knowing and voluntary waiver may only be safeguarded in the spirit of the Miranda doctrine through the assistance of counsel timely made.126 1. People v. Reyes, 581 SCRA 691 (2009) When really do the Miranda Rights kick in? In People v. Marra,127 and People v. Ting Lan Uy, Jr.,128 the Court held, in effect, that the rights would only be available if a person has already been arrested and in custody. However, in this case of Reyes,, we find this line: The mantle of protection afforded by the University of Santo Tomas above-quoted constitutional provision [Art. III, 12]Civil the period from the time a person is taken Faculty of covers Law into custody for the investigation of his possible participation in the commission of a crime or from the time he is singled out as a suspect in the commission of the offense although not yet in custody. Bar Review 2010 2. People v. Rapeza, 520 SCRA 596 (2007) Where the participation of a lawyer in the proceedings was confined to the notarization of the suspects confession, the same is not considered the kind of legal assistance that should be accorded to
125 126
People v. Basay, 219 SCRA 404 (1993)
See Rene B. Gorospe, Beyond Stonehill: Extending the Exclusionary Rule to Uncounselled Media Confessions, UST Law A Library 2004), at 131-190. vis--vis An Arsenal Of Arms Review, Vol. XLVIII (January-December Of Liberties (http://ustlawreview.com/pdf/vol.XLVIII/Articles/Beyond_Stonehill.pdf)
127 128
236 SCRA 565 (1994) 475 SCRA 248 (2005)
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the suspect. The suspect must also be advised that he has the option to reject the counsel provided him by the police authorities, which must also appear in the written confession. (This latter statement, is it the beginning of a new right in the mold of the seventh paragraph of Morales, Jr. v. Enrile, 121 SCRA 538 [1983] that the right to counsel may be waived provided it is done with the assistance of counsel?) Further, the foregoing pronouncement may also be related to what the Court said in People v. Casimiro, 383 SCRA 390 (2002), on incomplete Miranda Warning: The warning was incomplete. It did not include a statement that, if accused-appellant could not afford a counsel, one would be assigned to him. The warning was perfunctory, made without any effort to find out if he understood it. It was merely ceremonial and inadequate in transmitting meaningful information to the suspect. 3. People v. Malngan, 503 SCRA 294 (2006) Due to the alleged failure of the employer to pay the wage of the domestic helper for a year, as well as her refusal to let the latter go home to the province tauntingly telling her to ride a broomstick if she wanted to the domestic helper burned the whole house, incinerating all its occupants husband and wife and their four children. The maid was subsequently located and she confessed to the Barangay Chairman in the presence of a multitude of angry residents outside the Barangay Hall. Is the confession admissible? No, the Court said: Arguably, the barangay tanods, including the Barangay Chairman, in this particular instance, may be deemed as law enforcement officer for purposes of applying Article III, Section 12(1) and (3), of the Constitution. When accused-appellant was brought to the barangay hall in the morning of 2 January 2001, she was already a suspect, actually the only one, in the fire that destroyed several houses as well as killed the whole family of Roberto Separa, Sr. She was, therefore, already under custodial investigation and the rights guaranteed by Article III, Section 12 (1), of the Constitution should have already been observed or applied to her. Accused-appellants confession to Barangay Chairman Remigio Bernardo was made in response to the interrogation made by the latter admittedly conducted without first informing accused-appellant of her rights under the Constitution or done in the presence of counsel. For this reason, the confession of accused-appellant, given to Barangay Chairman Remigio Bernardo, as well as the lighter found by the latter in her bag are inadmissible in evidence against her as such were obtained in violation of her constitutional rights.129 The accused was found guilty of arson just the same, though based on some other evidence, such as her own admission to a neighbor whose house was also burned as well as circumstantial evidence. 4. Astudillo v. People, 509 SCRA 302 (2006) While the Court followed what it said in Ting Lan Uy that the Miranda Rights exist only in University of Santo Tomas custodial interrogations or in-custody interrogation of accused persons, it also adopted a more liberal
In People v. Ulit, 423 SCRA 374 (2004), the Barangay chairman ordered the barangay tanods to invite and bring the accused to the barangay hall, and thereafter asked the accused if he raped the complainant. The suspect admitted and executed a sworn statement to that effect. The Court said that the uncounselled sworn statement of the accused was considered admissible because he was not then under arrest nor under custodial investigation. The exclusionary rule is premised on the presumption that the defendant is thrust into an unfamiliar atmosphere and runs through menacing police interrogation procedures where the potentiality for compulsion, physical and psychological, is forcefully apparent. As intended by the 1971 Constitutional Convention, this covers investigation conducted by police authorities which will include investigations conducted by the municipal police, the PC and the NBI and such other police agencies in our government. The barangay chairman is not deemed a law enforcement officer for purposes of applying Section 12(1) and (3) of Article III of the Constitution. Under these circumstances, it cannot be successfully claimed that the appellants statement before the barangay chairman is inadmissible. (Both Ulit and Samus were en banc decisions.)
129
In People v. Tomaquin, 435 SCRA 23 (2004), the Court noted that a barangay captain is called upon to enforce the law and ordinances in his barangay and ensure peace and order at all times. As such, he could not be considered as an independent counsel for the purpose of assisting a suspect.
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approach in regard to the effect of uncounselled confession insofar as third persons are concerned: [C]onfessions and admissions in violation of Section 12(1), Article III of the Constitution are inadmissible in evidence against the declarant and more so against third persons. In the latter aspect the Court cited People v. Figueroa, 335 SCRA 249 (2000). Earlier, though, the Court declared in People v. Balisteros, 237 SCRA 493 (1994), that the said exclusionary benefits may only be availed of by the accused himself. The Court then said: What is provided by the modified formulation in the 1987 Constitution is that a confession taken in violation of said Section 12 and Section 17 of the same Article shall be inadmissible in evidence against him, meaning the confessant. This objection can be raised only by the confessant whose rights have been violated as such right is personal in nature.
O.
RIGHTS OF THE ACCUSED
Once a person under investigation is found to be probably guilty of the commission of a crime, he is charged in court and he thereby becomes an accused. As such, he becomes entitled to another set of rights, from the presumption of innocence to an opportunity to avail of momentary liberty through bail, to being informed of the charges, to setting out his defense by himself or counsel, facing his accusers and testing their credibility, speedy, impartial and public trial, and compulsory process for the production of witnesses and evidence in his behalf. Through all of these, he is assured of the guarantee of being heard before judgment is rendered.130 1. Government of Hong Kong Special Administrative Region v. Olalia, Jr., 521 SCRA 470 (2007) Confronted anew with the question as to whether a potential extraditee is entitled to bail, the Court found occasion to revisit what it had earlier decreed in Purganan, supra. It noted that the modern trend in public international law is the primacy placed on the worth of the individual person and the sanctity of human rights, citing the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. Fundamental among the rights enshrined in the International Covenant on Civil and Political Rights are the rights of every person to life, liberty, and due process. While the Court in Purganan limited the exercise of the right to bail to criminal proceedings, in light of the various international treaties giving recognition and protection to human rights, particularly the right to life and liberty, a reexamination of the Courts ruling in Purganan was accordingly in order.
University be Santo deportation The Court also reasoned out that if bail can ofgranted in Tomas cases, it saw no justification Faculty cases clearly, the why it should not also be allowed in extradition of Civil Law right of a prospective extraditee to apply for bail must be viewed in the light of the various treaty obligations of the Philippines concerning Bar Review 2010 respect for the promotion and protection of human rights.
While extradition is not a criminal proceeding, it is characterized by the following: (a) it entails a deprivation of liberty on the part of the potential extraditee and (b) the means employed to attain the purpose of extradition is also the machinery of criminal law obviously, an extradition proceeding, while ostensibly administrative, bears all earmarks of a criminal process . By any standard, detention for an extended period of more than two (2) years is a serious deprivation of a potential extraditees fundamental right to liberty. While vis--vis An Arsenal Of Arms not provide for the A Library Of Liberties the Philippines extradition law does
In People v. Alcanzado, 428 SCRA 681 (2004), the Court held that if a demurrer to evidence with leave of court is denied, the trial court should give the accused the opportunity to present his evidence. It cannot simply proceed to convict him.
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grant of bail to an extraditee, however, there is no provision prohibiting him or her from filing a motion for bail, a right to due process under the Constitution. So what standards should govern the grant of bail to potential extraditee? The applicable standard of due process should not be the same as that in criminal proceedings in the latter, the standard of due process is premised on the presumption of innocence of the accused, in the former, the assumption is that such extraditee is a fugitive from justice. Thus, the prospective extraditee thus bears the onus probandi of showing that he or she is not a flight risk and should be granted bail. An extradition proceeding being sui generis, the standard of proof required in granting or denying bail can neither be the proof beyond reasonable doubt in criminal cases nor the standard of proof of preponderance of evidence in civil cases. The potential extraditee must prove by clear and convincing proof that he is not a flight risk and will abide with all orders and processes of the extradition court. 2. Trillanes IV v. Pimentel, Sr., 356 SCRA 471 (2008) What does the presumption of innocence entail? The Court said that the presumption of innocence does not carry with it the full enjoyment of civil and political rights. Accordingly, in this case even as someone charged with coup detat a non-bailable offense was elected to Congress, he was not allowed to leave his prison cell in order to join his colleagues in the legislative brancn. The Court further held, in regard as to when the presumption remains viable: The rule stands that until a promulgation of final conviction is made, the constitutional mandate of presumption of innocence prevails. 3. Re: Conviction of Judge Adoracion G. Angeles, RTC, Br. 121, Caloocan City in Criminal Cases Nos. Q-97-69655 to 56 for Child Abuse, 543 SCRA 196 (2008) Does the presumption of innocence come to an end when there is conviction by the trial court, even if there is an appeal taken? In this case, the Court echoed what was said Trillanes the presumption is lost only when there is a final judgment. Accordingly,the fact of [the judges] conviction by the RTC does not necessarily warrant her suspension. We agree with [her] argument that since her conviction of the crime of child abuse is currently on appeal before the CA, the same has not yet attained finality. As such, she still enjoys the constitutional presumption of innocence. It must be remembered that the existence of a presumption indicating the guilt of the accused does not in itself destroy the constitutional presumption of innocence unless the inculpating presumption, together with all the evidence, or the lack of any evidence or explanation, proves the accuseds guilt beyond a reasonable doubt. 4. People v. Abulon, 530 SCRA 675 (2007) Rape through Sexual Intercourse v. Rape by Sexual Assault. In view of the material differences Faculty of Civil Law between the two modes of rape,131 the first mode is not necessarily included in the second, and vice-versa. Thus, where the charge in Bar Review 2010 the Information is rape through carnal knowledge, the accused cannot be found guilty of rape by sexual assault even if proven, for this would violate his constitutional right to be informed of the nature and cause of the accusation against him. However, following the variance doctrine he can be found guilty of the lesser crime of acts of lasciviousness. 5. Andaya v. People, 493 SCRA 539 (2006)
In this case, the accused was charged with Falsification of Private Documents but no damage to offended party was A Library Of Liberties vis--vis An Arsenal intent to cause damage to the proved. The accused was still convicted, though, for Of Arms
Rape through sexual intercourse is also denominated as organ rape or penile rape. On the other hand, rape by sexual assault is otherwise called instrument or object rape, also gender-free rape, or the narrower homosexual rape.
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government through evasion of tax. Despite the trial courts concession that the allegedly offended party (a savings and loan association) suffered no damage, it still convicted the accused, reasoning out that the third essential element of falsification of private document was present because the falsification of the voucher was done with criminal intent to cause damage to the government considering that its purpose was to lower the tax base of the recipient of the money, allowing him to evade payment of taxes. The Court saw the act done by the judge unjustified. We find ourselves unable to agree with this ratiocination of the trial court because it violates the constitutional right of petitioner to be informed of the nature and cause of the accusation against him. It must be remembered that [n]o matter how conclusive and convincing the evidence of guilt may be, an accused cannot be convicted of any offense unless it is charged in the information on which he is tried or is necessarily included therein. To convict him of a ground not alleged while he is concentrating his defense against the ground alleged would plainly be unfair and underhanded. The rule is that a variance between the allegation in the information and proof adduced during trial shall be fatal to the criminal case if it is material and prejudicial to the accused so much so that it affects his substantial rights. No matter the victim, accused still guilty! That might have been the mindset of the trial court judge.132 6. Davis v. Washington, 547 U.S. 813 (2006) Here, the issue is whether statements taken during 911 calls,133 as well as those given to police while responding to certain calls for assistance are subject to the Confrontation Clause such that if the persons who made the 911 Call or gave statements to the police do not show up during the trial, their testimonies will not be admitted. In resolving the legal poser, the U.S. Supreme Court made a differentiation between testimonial and non-testimonial statements. Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. The Court went on to rule in regard to 911 Calls: A 911 call, . . . at least the initial interrogation conducted in connection with a 911 call, is ordinarily not designed primarily to establis[h] or prov[e] some past fact, but to describe current circumstances requiring police assistance. In short, only testimonial statements make a declarant a witness.
University of Santo Tomas Faculty of Civil Law

Cf.: People v. Ortiz-Miyake, 279 SCRA 180 (1997), where the trial court convicted the accused of illegal recruitment in large scale even if only one of the three victims was able to testify, by adopting the judgment of conviction against the accuseds in two separate cases of estafa before a different court. The Supreme Court did not agree: A previous decision or judgment, while admissible in evidence may only prove that an accused was previously convicted of a crime. It may not be used to prove that the accused is guilty of a crime charged in a subsequent case, in lieu of the requisite evidence proving the commission of the crime, as said previous decision is hearsay. To sanction its being used as a basis for conviction in a subsequent case would constitute a violation of the right of the accused to confront the witnesses against him. . . . Every conviction must be based on the findings of fact made by a trial court according to its appreciation of the evidence before it. A conviction may not be based merely on the findings of fact of another court, especially where what is presented is only its decision sans the transcript of the testimony of the witnesses who testified therein and upon which the decision is based.
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The Court said of the nature of 911 Operators: If 911 operators areAnthemselves lawOf Arms officers, they may at least A Library Of Liberties vis--vis not Arsenal enforcement be agents of law enforcement when they conduct interrogations of 911 callers. For purposes of this opinion (and without deciding the point), we consider their acts to be acts of the police. As in Crawford v. Washington, 541 U. S. 36 (2004), therefore, our holding today makes it unnecessary to consider whether and when statements made to someone other than law enforcement personnel are testimonial.
133
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P. WRITS OF HABEAS CORPUS AND AMPARO

The privilege of the writ of habeas corpus affords one who may be unlawfully detained an opportunity to have an expeditious inquiry into the nature of the deprivation of liberty such that if there is no legal basis for the same then he should be set free. It also affords a remedy in custody fights in the domestic battle grounds to determine who may have better right over a person who could not take care of his own affairs. However, [t]he mere loss or destruction of the records of a criminal case subsequent to conviction of the accused will not render the judgment of conviction void, nor will it warrant the release of the convict by virtue of a writ of habeas corpus. The proper remedy is the reconstitution of judicial records which is as much a duty of the prosecution as of the defense.120 1. Martinez v. Mendoza, 499 SCRA 234 (2006) In Subayno v. Enrile, 145 SCRA 282 (1986), the Supreme Court said that the writ of habeas corpus may not be used as a means of obtaining evidence on the whereabouts of a person. Here, in Martinez v. Mendoza, the Court held that the grant of relief in a habeas corpus proceeding is not predicated on the disappearance of a person, but on his illegal detention. It may not be used as a means of obtaining evidence on the whereabouts of a person, or as a means of finding out who has specifically abducted or caused the disappearance of a certain person. When forcible taking and disappearance not arrest and detention have been alleged, the proper remedy is not habeas corpus proceedings, but criminal investigation and proceedings. 2. Aquino v. Esperon, 531 SCRA 788 (2007) As a general rule, the writ of habeas corpus will not issue where the person alleged to be restrained of his liberty is in the custody of an officer under a process issued by the court which has jurisdiction to do so it is unavailing where the legality of a military officers restraint has been settled, namely, that he stands charged in court martial proceedings for alleged violations of Article 67 (Attempting to Begin or Create Mutiny) and Article 96 (Conduct Unbecoming an Officer and Gentleman) of the Articles of War. Habeas corpus is not the proper mode to question conditions of confinement. As a rule, the writ of habeas corpus does not extend into questions of conditions of confinement but only to the fact and duration of confinement not a means for redress of grievances or to seek injunctive relief or damages. Further, under the hands-off doctrine, the courts give deference to military custodians over prison matters, especially on blanket restrictions on contact visit it is a form of judicial self-restraint, that courts should decline jurisdiction over prison matters in deference to administrative expertise.
University of Santo 3. Manalo v. Calderon, 536 SCRA 290 (2007)
When policemen are subject to certain investigations, they may be placed on restrictive custody or subjected to monitored movements. Are these subject to habeas corpus proceedings? Bar Review 2010 A restrictive custody and monitoring of movements or whereabouts of police officers under investigation by their superiors is not a form of illegal detention or restraint of liberty which merits the grant of a petition for habeas corpus. The prime specification of an application for a writ of habeas corpus is an actual and effective, and not merely nominal or moral, illegal restraint of liberty: [D]ecreeing the monitoring of their movements cannot, by any stretch of the imagination, be considered as a form of curtailment of their freedom guaranteed under our Constitution. Moreover, the restrictive A Library Of Liberties vis--vis An Arsenal is beyond custody complained of by petitioners is, at best, nominal restraint which Of Armsthe ambit of habeas
Tomas Faculty of Civil Law
120
Feria v. Court of Appeals, 325 SCRA 525 (2000)
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corpus. It is neither actual nor effective restraint that would call for the grant of the remedy prayed for. It is a permissible precautionary measure to assure the PNP authorities that the police officers concerned are always accounted for. Placing police officers facing a grave administrative case under restrictive custody is a disciplinary measure authorized under the PNP law. Does not the fact that the police force is actually civilian in nature rather than military in character make a difference? [A]lthough the PNP is civilian in character, its members are subject to the disciplinary authority of the Chief, Philippine National Police, under the National Police Commission. Courts cannot, by injunction, review, overrule or otherwise interfere with valid acts of police officials. The police organization must observe self-discipline and obey a chain of command under civilian officials. Elsewise stated, police officers are not similarly situated with ordinary civil service employees. The PNP has its own administrative disciplinary mechanism different from those of other government employees. 4. WRIT OF AMPARO Since the privilege of the writ of habeas corpus does not reach out to cases where the fact of detention is denied, or the identity of those keeping a person, or his whereabouts are uncertain, the Supreme Court came up with the Writ of Amparo.121 This is a remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity. It covers extralegal killings and enforced disappearances or threats thereof. In contrast to the writ of habeas corpus, under the Writ of Amparo it is not enough for the respondent to simply disclaim any knowledge of the aggrieved person subject of the writ, or the surrounding circumstances about the latter. He is also duty bound to state the steps or actions taken to determine the fate or whereabouts of said person and the person or persons responsible for the threat, act or omission. He is also bound to disclose all relevant information in his possession pertaining to the threat, act or omission against the aggrieved person, as well as to state other matters relevant to the investigation, its resolution and the prosecution of the case.122 5. Secretary of National Defense v. Manalo, 568 SCRA 1 (2008) While victims of enforced disappearances are separated from the rest of the world behind secret walls, they are not separated from the constitutional protection of their basic rights. The constitution is an overarching sky that covers all in its protection. Thus the Court began its decision in the first very petition filed for a Writ of Amparo.123 As to the Writs origin and nature, the Court Santo Tomas University of said: The writ of amparo originated in Mexico. Amparo literally means protection in Spanish. Amparo combines the principles of judicial review Faculty of Civil Law derived from the U.S. with the limitations on judicial power characteristic of the civil law tradition which prevails in Mexico. It enables courts to enforce the constitution by protecting individual rights Bar Review 2010 in particular cases, but prevents them from using this power to make law for the entire nation. Through time, adoption and adaptations in some other places, it has also begun to assume different forms for
121 122 123
Effective 24 October 2007, pursuant to A.M. No. 07-0-12-SC (25 September 2007). See also the Rule on the Writ of Habeas Data discussed in the section on Searches and Seizures.
An earlier petition for writ of habeas corpus had been withdrawn following the escape of the the Manalo brothers who were until then illegally detained following their abduction by soldiers and members of the CAFGU. Even as they were already not deprived of their liberty, they still feared forA Library Of Liberties vis--vis An Arsenal Injunction and TRO to stop the Secretary their lives and security. Therefore, they filed a petition for Prohibition, Of Arms of National Defense and the Chief of Staff of the Armed Forces, as well as persons under them, from doing them harm. The moment the rules on the writ of amparo became effective, however, they asked the Court to convert their petition to one for Writ of Amparo and the Court forthwith acceded.
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different purposes (1) amparo libertad for the protection of personal freedom, equivalent to the habeas corpus writ; (2) amparo contra leyes for the judicial review of the constitutionality of statutes; (3) amparo casacion for the judicial review of the constitutionality and legality of a judicial decision; (4) amparo administrativo for the judicial review of administrative actions; and (5) amparo agrario for the protection of peasants rights derived from the agrarian reform process. In the Philippines, before the adoption of the Amparo Rules, we had the constitutional guarantee of right to life, liberty and security under the Due Process Clause and the right against unreasonable searches and seizures (Art. II, 1 and 2), enforceable by means of the writ of habeas corpus (Art. III, 15) as well as the Grave Abuse Clause124 (Art. VIII, 1, 2). On the Grave Abuse Clause, the Court said: The Clause accords a similar general protection to human rights extended by the amparo contra leyes, amparo casacion, and amparo administrativo. Amparo libertad is comparable to the remedy of habeas corpus found in several provisions of the 1987 Constitution. The Clause is an offspring of the U.S. common law tradition of judicial review, which finds its roots in the 1803 case of Marbury v. Madison. But the means then available were obviously inadequate remedy to some pressing problem of extralegal killings and enforced disappearances which cried out for better solutions. Thus, the writ of amparo. While constitutional rights can be protected under the Grave Abuse Clause through remedies of injunction or prohibition under Rule 65 of the Rules of Court and a petition for habeas corpus under Rule 102, these remedies may not be adequate to address the pestering problem of extralegal killings and enforced disappearances. However, with the swiftness required to resolve a petition for a writ of amparo through summary proceedings and the availability of appropriate interim and permanent reliefs under the Amparo Rule, this hybrid writ of the common law and civil law traditions borne out of the Latin American and Philippine experience of human rights abuses offers a better remedy to extralegal killings and enforced disappearances and threats thereof. The remedy provides rapid judicial relief as it partakes of a summary proceeding that requires only substantial evidence to make the appropriate reliefs available to the petitioner; it is not an action to determine criminal guilt requiring proof beyond reasonable doubt, or liability for damages requiring preponderance of evidence, or administrative responsibility requiring substantial evidence that will require full and exhaustive proceedings. In fine, amparo writ serves both preventive and curative roles in addressing the problem of extralegal killings and enforced disappearnces. The Amparo Rule was intended to address the intractable problem of extralegal killings and enforced disappearances. Its coverage, in its present form, is confined to these two instances or to threats thereof. And what do you mean by those terms? Extralegal killings are killings committed without due process of law, i.e., without legal safeguards or judicial proceedings. On the University of Santo Tomas attended by the following other hand, enforced disappearances are characteristics: an arrest, detention or abduction of a person by a government official or organized groups Faculty of Civil Law or private individuals acting with the direct or indirect acquiescence of the government; the refusal of the State to disclose the fate or whereaboutsReview 2010 Bar of the person concerned or a refusal to acknowledge the deprivation of liberty which places such persons outside the protection of law. The writ of amparo is available to those whose right to life, liberty and security is violated or threatened with violation. So what does the right entail? The right to security or the right to security of person finds a textual hook in Article III, Section 2 of the 1987 Constitution. This guarantees immunity of ones person, including the extensions of his/her person houses, papers, and effects against government intrusion. And while the right to life guarantees essentially the right to be alive A Library Of Liberties vis--vis An Arsenal Of to security of person is a upon which the enjoyment of all other rights is preconditioned the right Arms
124
This seems to be the first time that the Court made use of this term.
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guarantee of the secure quality of this life. So, what in more concrete terms are included within the right to security? The Court spoke of the permutations of the right to security. The first would be freedom from fear. In the context of Section 1 of the Amparo Rule, freedom from fear is the right and any threat to the rights to life, liberty or security is the actionable wrong. Fear is a state of mind, a reaction; threat is a stimulus, a cause of action. . . . Thus, in the amparo context, it is more correct to say that the right to security is actually the freedom from threat. Viewed in this light, the threatened with violation Clause in the latter part of Section 1 of the Amparo Rule is a form of violation of the right to security mentioned in the earlier part of the provision. The second is a guarantee of bodily and psychological integrity or security. Physical injuries inflicted in the context of extralegal killings and enforced disappearances constitute more than a search or invasion of the body. Also, [p]hysical torture, force, and violence are a severe invasion of bodily integrity. When employed to vitiate the free will such as to force the victim to admit, reveal or fabricate incriminating information, it constitutes an invasion of both bodily and psychological integrity as the dignity of the human person includes the exercise of free will. The third is a guarantee of protection of ones rights by the government. The right to security of person in this third sense is a corollary of the policy that the State guarantees full respect for human rights under Article II, Section 11 of the 1987 Constitution. . . . Protection includes conducting effective investigations, organization of the government apparatus to extend protection to victims of extralegal killings or enforced disappearances (or threats thereof) and/or their families, and bringing offenders to the bar of justice. And, must there be a prior deprivation of liberty? No. [T]here need not necessarily be a deprivation of liberty for the right to security of person to be invoked. How fares the petition in the instant case? On the aspect about freedom from threat the Court held: [T]he circumstances of respondents abduction, detention, torture and escape reasonably support a conclusion that there is an apparent threat that they will again be abducted, tortured, and this time, even executed. These constitute threats to their liberty, security, and life, actionable through a petition for a writ of amparo. With regard to the right to Government protection, the Court observed: Apart from the failure of military elements to provide protection to respondents by themselves perpetrating the abduction, detention, and torture, they also miserably failed in conducting an effective investigation of respondents abduction as revealed by the testimony and investigation report of petitioners own witness, . . . The one-day investigation conducted by Jimenez was very limited, superficial, and one-sided. Further, amost a year after the policy directive was issued by petitioner Secretary of National Defense on October 31, 2007, respondents have not been furnished the results of the investigation which they now seek through the instant petition for a writ of amparo. The Court concluded: Under these circumstances, there is substantial evidence to warrant the conclusion that there is a violation of respondents right to securityUniversity of protection by the government. In other words, as a guarantee of Santo Tomas Faculty of Civil Law respondents right to security as freedom from threat is violated by the apparent threat to their life, liberty and security of person. Their right to security as a guarantee of protection by the government is Bar Review 2010 likewise violated by the ineffective investigation and protection on the part of the military. So what reliefs are available? One would be the production by the responsible officials and persons of all official and unofficial reports of the investigation undertaken in connection with their case, all medical reports, records and charts, reports of any treatment given or recommended and medicines prescribed, if any, to include a list of medical and (sic) personnel (military and civilian) who attended to the brothers while in detention. And, in this regard, the Court clarified the nature of an amparo production order. The production order under vis--vis An Arsenal Of Arms A Library Of Liberties the Amparo Rule should not be confused with a search warrant for law enforcement under Article III, Section 2 of the 1987 Constitution. This Constitutional provision is a protection of the people from the unreasonable intrusion of the government, not a
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protection of the government from the demand of the people such as respondents. Instead, the amparo production order may be likened to the production of documents or things under Section 1, Rule 27 of the Rules of Civil Procedure. Another relief is the disclosure of the present places of official assignments of identified military personnel who might have had something to do with the abduction, detention and torture of the amparo petitioners. The disclosure of the present places of assignment of [two military men] whom respondents both directly implicated as perpetrators behind their abduction and detention, is relevant in ensuring the safety of respondents by avoiding their areas of territorial jurisdiction. Such disclosure would also help ensure that these military officers can be served with notices and court processes in relation to any investigation and action for violation of the respondents rights. And by way of final note, the Court declared: The writ of amparo is a tool that gives voice to preys of silent guns and prisoners behind secret walls. (Now, as for you, the Bar examinee, it is time to give voice to your silent pens and to break free from the prison walls you have made out of your unfounded trepidations about the Bar exams!) 6. Razon, Jr. v. Tagitis, SCRA (G.R. No. 182498, 3 December 2009) and Resolution on Motion for Reconsideration, SCRA (16 February 2010) The remedy under the Writ of Amparo is a work in progress, and we are all witnesses to the same. In this case the Court further expounded on the nature and importance of the Writ of Amparo. The Court said that the Writ of Amparo does not determine guilt nor pinpoint criminal culpability for the disappearance; rather, it determines responsibility, or at least accountability, for the enforced disappearance for purposes of imposing the appropriate remedies to address the disappearance. Responsibility refers to the extent the actors have been established by substantial evidence to have participated in whatever way, by action or omission, in an enforced disappearance, as a measure of the remedies this Court shall craft, among them, the directive to file the appropriate criminal and civil cases against the responsible parties in the proper courts. Accountability, on the other hand, refers to the measure of remedies that should be addressed to those who exhibited involvement in the enforced disappearance without bringing the level of their complicity to the level of responsibility defined above; or who are imputed with knowledge relating to the enforced disappearance and who carry the burden of disclosure; or those who carry, but have failed to discharge, the burden of extraordinary diligence in the investigation of the enforced disappearance. In all these cases, the issuance of the Writ of Amparo is justified by our primary goal of addressing the disappearance, so that the life of the victim is preserved and his liberty and security are restored.
University of Santo Tomas We highlight this nature of a Writ of Amparo case at the outset to stress that the unique situations Faculty of Civil Law
that call for the issuance of the writ, as well as the considerations and measures necessary to address these situations, may not at all be the same as the standard measures and procedures in ordinary court Bar Review 2010 actions and proceedings. In this sense, the Rule on the Writ ofAmparo125 (Amparo Rule) issued by this Court is unique. The Amparo Rule should be read, too, as a work in progress, as its directions and finer points remain to evolve through time and jurisprudence and through the substantive laws that Congress may promulgate.
In regard to the need for flexibility, specially with respect to matters of evidence, the Court explained that flexibility is necessary under the unique circumstances that enforced disappearance cases pose to the courts. To have A Library Of Liberties vis--vis An Arsenal Of Arms to the evidentiary an effective remedy, the standard of evidence must be responsive
125
A.M. No. 07-9-12-SC, October 24, 2007.
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difficulties faced. Thus, while we must follow the substantial evidence rule, we must observe flexibility in considering the evidence we shall take into account. The fair and proper rule, to our mind, is to consider all the pieces of evidence adduced in their totality, and to consider any evidence otherwise inadmissible under our usual rules to be admissible if it is consistent with the admissible evidence adduced. In other words, we reduce our rules to the most basic test of reason i.e., to the relevance of the evidence to the issue at hand and its consistency with all other pieces of adduced evidence. Thus, even hearsay evidence can be admitted if it satisfies this basic minimum test. 7. Rubrico v. Macapagal-Arroyo, SCRA (G.R. No. 183871, 18 February 2010) In this case, the Court discussed the doctrine of command responsibility in conjunction with the remedy of the Writ of Amparo. The Court noted that while there are several pending bills on command responsibility, there is still no Philippine law that provides for criminal liability under that doctrine. Thus, it would be inappropriate to apply to amparo proceedings the doctrine of command responsibility as a form of criminal complicity through omission, for individual respondents criminal liability, if there be any, is beyond the reach of amparo the Court does not rule in such proceedings on any issue of criminal culpability, even if incidentally a crime or an infraction of an administrative rule may have been committed. On this point, Justice Carpio Morales in her separate opinion noted that the ponencias ambivalence on the applicability of the doctrine of command responsibility overlooks its general acceptance in public international law, which warrants its incorporation into Philippine law via the incorporation clause of the Constitution. At the same time, the Court also cautioned that the remedy of amparo ought to be resorted to and granted judiciously, lest the ideal sought by the Amparo Rule be diluted and undermined by the indiscriminate filing of amparo petitions for purposes less than the desire to secure amparo reliefs and protection and/or on the basis of unsubstantiated allegations. In his separate opinion, Justice Brion took note of another new law, The Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity (R.A. No. 9851). He said that with R.A. 9851, the Rule on the Writ of Amparo is now a procedural law anchored, not only on the constitutional rights to the rights to life, liberty and security, but on a concrete statutory definition as well of what an enforced or involuntary disappearance is, rendering academic and brings to a close the search for a definition that the Court undertook in Razon v. Tagitis, supra. He also noted that the doctrine of command responsibility is a substantive rule that establishes criminal or administrative liability that is different from the purpose and approach of the Amparo Rule. Section 10 of R.A. 9851 explicitly makes superiors criminally liable under the doctrine of command responsibility liability under the doctrine of command responsibility is no longer simply administrative (based on University of Santo Tomas neglect of duty), but is now criminal. At the same time, he reiterated what was earlier said in Razon v. Faculty of Civil Law Tagitis that it has never been the intention of the Amparo Rule to determine liability, whether criminal or administrative the Court, under the Amparo Rule, 2010 direct that procedural remedies be Bar Review can only undertaken for the protection of constitutional rights to life, liberty and security. 8. Canlas v. Napico Homeowners Assn., I XIII, Inc., 554 SCRA 208 (2008) The threatened demolition of a dwelling by virtue of a final judgment of the court, is not included among the enumeration of rights for which the remedy of a writ of amparo is made available. Their claim to their dwelling, assuming they still have any despite the final and executory judgment adverse to them, does not constitute right toLiberties vis--vis An There is, therefore, no legal basis for the A Library Of life, liberty and security. Arsenal Of Arms issuance of the writ of amparo. The Court will not waste its precious time and effort on matters not covered by the writ.
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Q.
SELF-INCRIMINATION CLAUSE
Under this privilege, a person is free to keep within his breast any incriminatory matters and he could not be forced to disclose them. If the authorities want to pin him down, they have to come up with their own proof independent of what might be concealed by the person himself. Nevertheless, the guarantee is against compelled testimonial evidence, not object evidence which may include fingerprints, blood samples, urine samples, DNA samples and the like. When it comes to availing of the privilege, distinctions have to be made as to whether the person invoking it is an accused, a mere witness, or a party in a civil suit. While an accused can refuse altogether to take the witness stand, a witness may only refuse to answer incriminating questions. If he is the respondent in proceedings in which loss or forfeiture of property126 or loss of a license or profession127 is a consequence, then he may also invoke the privilege like an accused. No inference of guilt should be made from the invocation of the privilege, otherwise it would be useless. The prosecution is still required to prove guilt by its own evidence, not by seizing upon the exercise of the right. Further, while the language of the privilege suggests an absolute right not to be compelled to provide an incriminating answer, the same is subject, however, to the so-called immunity statutes the use or derivative use or the transactional immunity statutes. The courts have upheld the validity of such statutes provided they accord the person compelled to testify a degree of protection coextensive with what is otherwise guaranteed by the constitutional proscription against self-incrimination.
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EXCESSIVE FINES, CRUEL AND INHUMAN PUNISHMENTS
Punishment is supposed to be the price that has to be paid by those found guilty of crimes against the State a way of making amends for violation of societys rules. It is the manner by which society may somehow exact a form of retribution. The constitutional guarantee is geared towards seeing to it that whatever penalty is imposed does not become such that it violates the very notion of a civilized society where the mandates of substantive due process reigns. Penalties could not be grossly disproportionate to the infraction of societys rules.128 Fines should not be excessive, and other forms of punishments should not be cruel or inhuman ofdetermined by present day standards. University as Santo Tomas Likewise, just because a person Faculty ofsent to prison does it mean that he is completely cut may have been Civil Law off from the world, stripped of all constitutional rights. He still retains some, though to the extent only Bar Review 2010 that would be consistent with his status as prisoner.
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A Library Of (1962) Cabal v. Kapunan, Jr., 6 SCRA 1059 Liberties
Pascual, Jr. v. Board of Medical Examiners, 28 SCRA 344 (1969) See De La Salle University, Inc. v. Court of Appeals, 541 SCRA 22 (2007)
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S. DOUBLE JEOPARDY
The guarantee against double jeopardy is another assurance of fairness that a person be not exposed more than once to the danger of being punished for the commission of the same offense. In this regard, it must be remembered that the guarantee is in regard to the same offense. Thus, it may be that a single act could give rise to two or more offenses,129 prosecution for which will not give rise to a violation of the constitutional proscription. However, if the act gives rise to violation of a national law and a local ordinance, conviction or acquittal under either shall be a bar to prosecution for the same act. It has also been noted that double jeopardy attaches if one is tried by both a military court and a civilian court over the same act.130 The rule is also that an acquittal puts an end to the criminal case and the prosecution could not appeal except in case of a mistrial131 or when there is grave abuse of discretion on the part of the judge amounting to lack or excess of jurisdiction which then renders the resulting judgment void.132 Neither may the prosecution appeal to increase the penalty, though if the accused himself does appeal, he stands the risk of having the penalty rectified and increased!133 And, the employer, too, cannot appeal on behalf of an employee who has jumped bail.134 1. People v. Laguio, Jr., 518 SCRA 393 (2007) While the prosecution cannot appeal from a judgment of acquittal or a favorable action on a demurrer to evidence, it does not necessarily mean that the prosecution is altogether precluded from questioning the trial courts disposition. If there was grave abuse of discretion, then the matter should be elevated not by way of a petition for review on certiorari under Rule 45 (a mode of appeal) but by means of the special civil action of certiorari under Rule 65. So, the Court lectured the prosecution in this case, pointing out as follows: By this time, it is settled that the appellate court may review dismissal orders of trial courts granting an accuseds demurrer to evidence. This may be done via the special civil action of certiorari under Rule 65 based on the ground of grave abuse of discretion, amounting to lack or excess of jurisdiction. Such dismissal order, being considered void judgment, does not result in jeopardy. Thus, when the order of dismissal is annulled or set aside by an appellate court in an original special civil action via certiorari, the right of the accused against double jeopardy is not violated. Unfortunately, what petitioner People of the Philippines, through then Secretary of Justice Teofisto T. Guingona, Jr. and then Solicitor General Silvestre H. Bello, III, filed with the Court in the present case is an appeal by way of a petition for review on certiorari under Rule 45 raising a pure question of law, which is different from a petition for certiorari under Rule 65.135
E.q., Nierras v. Dacuycuy, 181 SCRA 1 (1990) [bouncing checks], and, People v. Ortiz-Miyake, 279 SCRA 180 (1997) [illegal recruitment]; and, Ramiscal, Jr. v. Sandiganbayan, 499 SCRA 375 (2006) [R.A. 3019 and Revised Penal Code]
130 131 132 133 134 129
See separate opinion of Justice Tinga in Gonzales v. Abaya, 498 SCRA 445 (2006). Galman v. Sanidganbayan, 144 SCRA 43 (1986) People v. Laguio, Jr., 518 SCRA 393 (2007) People v. Rondero, 320 SCRA 383 (1999)
In Philippine Rabbit Bus Lines, Inc. v. People, 427 SCRA 456 (2004), the Court held that, in accordance with the rule that only the accused may appeal, the employer cannot, independently of the convicted employee, appeal that aspect relating to its subsidiary civil liability. Where the latter jumps bail, the former cannot, by itself alone, undertake to appeal the civil aspect of the judgment. If it were otherwise allowed, such employers appeal would violate the employees right against double jeopardy since the judgment against the latter could become subject to modification without his consent, appeal opening up the whole case for review. See, however, People v. Dumlao, Of Liberties vis--vis An Arsenal Of Arms A Library SCRA (G.R. No. 168918, 2 March 2009), where the Court entertained a petition for review on certiorari under Rule 45 from a dismissal of the criminal case after arraignment, eventually holding: The cardinal precept is that where there is a violation of basic constitutional rights, courts are ousted of their jurisdiction. Where the denial of the fundamental right to due process is apparent, a decision in disregard of the right is void for lack of jurisdiction. In the instant case, there was no error of judgment
135
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2. Trinidad v. Office of the Ombudsman, 539 SCRA 415 (2007) Does the rule on double jeopardy or res judicata apply in preliminary investigations? Nopes. Res judicata is a doctrine of civil law and thus has no bearing on criminal proceedings. But even if petitioners argument were to be expanded to contemplate res judicata in prison grey or the criminal law concept of double jeopardy, this Court still finds it inapplicable to bar the reinvestigation conducted by the Office of the Ombudsman. For the dismissal of a case during preliminary investigation does not constitute double jeopardy, preliminary investigation not being part of the trial. Accordingly, [t]he Ombudsman is not precluded from ordering another review of a complaint, for he or she may revoke, repeal or abrogate the acts or previous rulings of a predecessor in office. And Roxas v. Hon. Vasquez teaches that new matters or evidence are not prerequisites for a reinvestigation, which is simply a chance for the prosecutor, or in this case the Office of the Ombudsman, to review and re-evaluate its findings and the evidence already submitted. 3. People v. Sandiganbayan, 559 SCRA 449 (2008) Could a violation of basic rules of Statutory Construction constitute grave abuse of discretion? In this case, the Court said yes. Accordingly, a judgment of acquittal was deemed useless. The Court declared: The Sandiganbayan, Fourth Division held that the qualifications for a position are provided by law and that it may well be that one who possesses the required legal qualification for a position may be temporarily disqualified for appointment to a public position by reason of the one-year prohibition imposed on losing candidates. However, there is no violation of Article 244 of the Revised Penal Code should a person suffering from temporary disqualification be appointed so long as the appointee possesses all the qualifications stated in the law. There is no basis in law or jurisprudence for this interpretation. On the contrary, legal disqualification in Article 244 of the Revised Penal Code simply means disqualification under the law. Accordingly, the trial court, in disregarding basic rules of statutory construction, acted with grave abuse of discretion. Its interpretation of the term legal disqualification in Article 244 of the Revised Penal Code defies legal cogency. 4. Castro v. People, 559 SCRA 676 (2008) In this case, a school assistant head master advised a parent that talking to another parent who had earlier filed against the school was dangerous. This resulted in his being charged with, and convicted of, grave oral defamation. He was found guilty by the Metropolitan Trial Court. On appeal, the Regional Trial Court affirmed the finding of facts but found that the offense was only for slight oral defamation, and since the complaint was filed almost five (5) months from discovery, the RTC ruled that prescription had set in. It acquitted the accused. The Court of Appeals found that the RTC committed grave abuse University of Santo Tomas of discretion when it misapprehended the totality ofCivil Law Faculty of the circumstances. The CA reinstated the MeTC decision. Is the CA correct? No. An acquittal, whether ordered by the trial or appellate court, is final and unappealable on the ground of double Bar Review 2010 jeopardy. The only exception is when the trial court acted with grave abuse of discretion or, when there was mistrial. In this particular case, prosecution premised its allegation of grave abuse of discretion on the RTCs erroneous evaluation and assessment of the evidence presented by the parties. This would only involve errors of judgment (or those involving misappreciation of evidence or errors of law), not errors of jurisdiction (or those involving the
but a denial of due process resulting in loss of jurisdiction. Respondent Dumlao would not be placed in double jeopardy because, from the very beginning, the Sandiganbayan had acted without jurisdiction. Precisely, any ruling issued without jurisdiction is, in legal contemplation, necessarily null and void Of does not exist. Otherwise put,Andismissal of the case below was invalid for lack of a A Library and Liberties vis--vis the Arsenal Of Arms fundamental prerequisite, that is, due process. In rendering the judgment of dismissal, the trial court acted without or in excess of jurisdiction, for a judgment which is void for lack of due process is equivalent to excess or lack of jurisdiction. This being the case, the prosecution is allowed to appeal because it was not given its day in court.
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commission of grave abuse of discretion). In fine, since no errors of jurisdiction were raised, the CA committed a mistake in taking cognizance of the petition and in reviewing the factual findings of the RTC. This time, it is the turn of the RTC judgment to be reinstated. Is the school official then completely off the hook? No, not necessarily. The Court said that at most, he could have been liable for damages under Article 26 of the Civil Code for intriguing to cause another to be alienated from his friends. He was then reminded that, as an educator, he is supposed to be a role model for the youth. As such, he should always act with justice, give everyone his due and observe honesty and good faith. (By what you preach you should also abide.) Be careful, therefore, what you advise others about the dangers that lurk when they talk to someone. 5. Herrera v. Sandiganbayan, 579 SCRA 32 (2009) In this case, two policemen were charged before the Sandiganbayan for the death of two men. During arraignment, they pleaded not guilty, then filed a joint petition for bail raising the issue of lack of jurisdiction on the ground that the prosecution failed to allege in the informations that the crimes were committed by the petitioners in relation to their office. Whereupon the Sandiganbayan ordered the amendment of the informations, after which the accused were arraigned anew. They entered pleas of not guilty and also withdrew their objections to the issue of lack of jurisdiction. After trial, they were convicted of murder. Were they placed in double jeopardy? The Court held that the accused were not placed in double jeopardy in pleading not guilty under the amended informations. For a claim of double jeopardy to prosper, the following requisites must concur: (1) there is a complaint or information or other formal charge sufficient in form and substance to sustain a conviction; (2) the same is filed before a court of competent jurisdiction; (3) there is a valid arraignment or plea to the charges; and (4) the accused is convicted or acquitted or the case is otherwise dismissed or terminated without his express consent. Here, the accused pleaded not guilty to the original informations and thereafter raised the issue of lack of jurisdiction on the ground that the prosecution failed to allege in the informations that the crimes were committed in relation to their office which then resulted in the Sandiganbayan order for the amendment of the informations. The first requirement for double jeopardy to attach that the informations were valid has not been complied with. Likewise, the fourth element was lacking. Petitioners cannot be validly convicted on the basis of the original information as the prosecution failed to allege in the informations that the crimes were committed in relation to their office. Petitioners were thus not placed in danger of being convicted when they entered their plea of not guilty to the insufficient information.
University of 6. People v. Dumlao, 580 SCRA 409 (2009)
Where a Motion to Dismiss/Quash is based on the ground that the facts charged do not constitute an offense, the Sandiganbayan cannot Bar Review 2010case based on insufficiency of evidence. proceeded to dismiss the The Court reminded everyone that insufficiency of evidence is not one of the grounds of a Motion to Quash. Insufficiency of evidence is a ground for dismissal of an action only after the prosecution rests its case. So what would be the consequence? In the case under consideration, the Sandiganbayan dismissed the case against respondent for insufficiency of evidence, even without giving the prosecution the opportunity to present its evidence. In so doing, it violated the prosecutions right to due process. It deprived the prosecution of its opportunity to prosecute its case and to prove the accuseds culpability. A Library Of Liberties vis--vis An Arsenal Of Arms It was therefore erroneous for the Sandiganbayan to dismiss the case under the premises. Not only did it not consider the ground invoked by respondent Dumlao; it even dismissed the case on a ground not
Santo Tomas Faculty of Civil Law
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raised by him, and not at the appropriate time. The dismissal was thus without basis and untimely. The long and short of it? The first jeopardy has not yet attached. There is no question that four of the five elements of legal jeopardy are present. However, we find the last element valid conviction, acquittal, dismissal or termination of the case wanting. As previously discussed, the Sandignabayan violated the prosecutions right to due process. The prosecution was deprived of its opportunity to prosecute its case and to prove the accuseds culpability. The dismissal was made in a capricious and whimsical manner. The trial court dismissed the case on a ground not invoked by the respondent. The Sandiganbayan dismissed the case for insufficiency of evidence, while the ground invoked by the respondent was that the facts charged did not constitute an offense. The dismissal was clearly premature, because any dismissal based on insufficiency of evidence may only be made after the prosecution rests its case and not at any time before then. A purely capricious dismissal of an information deprives the State of a fair opportunity to prosecute and convict. It denies the prosecution a day in court. It is void and cannot be the basis of double jeopardy.
T. EX POST FACTO LAWS AND BILLS OF ATTAINDER

The constitutional proscription against ex post facto laws and bills of attainder ensures fundamental fairness. No man should be punished for acts which when done were perfectly lawful. Due process requires at the very least that before a person could be held to account for what alleged wrong he committed, he was forewarned of the consequences of his act. Both ex post facto laws and bills of attainder are retroactive in their application. They impose a penalty or disability after the act has been committed when no such disadvantageous effect was yet present when the act was done. Worse, in the case of bills of attainder, the sanction is imposed without judicial proceedings. Thus, there is also a violation of the principle of separation of powers Congress legislates but it is the judiciary that adjudicates. It has also been observed that, [a]s the text of the Clause makes clear, it is a limitation upon the powers of the Legislature, and does not of its own force apply to the Judicial Branch of government. Nevertheless, limitations on ex post facto judicial decisionmaking are inherent in the notion of due process. Indeed, [d]eprivation of the right to fair warning, . . . can result both from vague statutory language and from an unforeseeable and retroactive judicial expansion of statutory language that appears narrow and precise on its face.136 1.
University of Santo Tomas Salvador v. Mapa, 539 SCRA 34 (2007) Civil Law Faculty of
In this case, the Court claimed responsibility for adding two other types of ex post facto laws. An Bar Review 2010 ex post facto law has been defined as one (a) which makes an action done before the passing of the law and which was innocent when done criminal, and punishes such action; or (b) which aggravates a crime or makes it greater than it was when committed; or (c) which changes the punishment and inflicts a greater punishment than the law annexed to the crime when it was committed; or (d) which alters the legal rules of evidence and receives less or different testimony than the law required at the time of the commission of the offense in order to convict the defendant. This Court added two (2) more to the list, namely: (e) that which assumes to regulate civil rights and remedies only but in effect imposes a penalty A Library Of Liberties lawful; or An Arsenal Of Arms or deprivation of a right which when done was vis--vis (f) that which deprives a person accused of a
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Rogers v. Tennessee, 532 U.S. 451 (2001)
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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. And what are penal laws anyway? The constitutional doctrine that outlaws an ex post facto law generally prohibits the retrospectivity of penal laws. Penal laws are those acts of the legislature which prohibit certain acts and establish penalties for their violations; or those that define crimes, treat of their nature, and provide for their punishment. Thus, mere administrative issuances governing the mission and operation of a committee could not be considered as a penal law. Administrative Order No. 13 creates the Presidential Ad Hoc Fact-Finding Committee on Behest Loans, and provides for its composition and functions. It does not mete out penalty for the act of granting behest loans. Memorandum Order No. 61 merely provides a frame of reference for determining behest loans. Not being penal laws, Administrative Order No. 13 and Memorandum Order No. 61 cannot be characterized as ex post facto laws. The Ombudsman cannot, therefore, declare them to be ex post facto. 2. Valeroso v. People, 546 SCRA 450 (2008) R.A. No. 8294 lowered the penalty for illegal possession of firearms but at the same time imposed a penalty of fine which was not found in P.D. No. 1866. Could this new penalty be imposed on someone who committed the crime before the amendment, and if so, would this not be a form of an ex post facto law? In Gonzales v. Court of Appeals, 277 SCRA 518 (1997), as well as in Cadua v. Court of Appeals, 312 SCRA 703 (1999), the Court said the new penalty may be imposed since an appeal throws the entire case open for review. One may wonder, however, how such reasoning could provide a satisfactory answer to the question as to why the imposition of the new penalty (fine) is not a violation of the proscription against ex post facto laws. Would it not be a case of a law which changes the punishment and inflicts a greater punishment than the law annexed to the crime when it was committed? In Valeroso, the Court finally pronounced that there is no violation since overall the resulting penalty is still beneficial to the accused. The Court said: Although an additional fine of P15,000.00 is imposed = by R.A. No. 8294, the same is still advantageous to the accused, considering that the imprisonment is lowered to prision correccional in its maximum period from reclusion temporal in its maximum period to reclusion perpetua under P.D. No. 1866. Finally, a reason that could at least be more convincing. If one were to simply follow and abide by his adversarys definition of the problem, or his characterization of the issue, then he would have lost half the battle. One must know how to see things in proper context and in appropriate light in order not to be blindly led or misled. Others may want you to take University of Santo Tomas the path they may prefer or have gotten accustomed to but then it may be better to take the road less Faculty Bar . . . and Law traveled as it might make all the difference in the of Civil in your life.137 re latio n s h ip w ith th e Law .
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Two roads diverged in a wood, and I I took the one less traveled by, And that has made all the difference. (Robert Frost, The Road Not Taken [1916])

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NOTES, UPDATES AND TEASERS

CONSTITUTIONAL LAW * (Bar Review 2010)

Francisco v. Permskul, 173 SCRA 324 (1989)

University of Santo Tomas Faculty of Civil Law Bar Review 2010

CONSTITUTIONAL LAW Notes, Updates and Teasers (Bar 2010)

THE FUNDAMENTAL POWERS AND THE BILL OF RIGHTS

University of Santo Tomas Faculty of Civil Law Bar Review 2010

See Calalang v. Williams, 70 Phil. 726 (1940)

A Library Of Liberties vis--vis An Arsenal Of Arms

CONSTITUTIONAL LAW Notes, Updates and Teasers (Bar 2010)

THE FUNDAMENTAL POWERS

Faculty of Civil Law Bar Review 2010

A Library Of Liberties vis--vis An Arsenal Of Arms

CONSTITUTIONAL LAW Notes, Updates and Teasers (Bar 2010)

CONSTITUTIONAL LAW Notes, Updates and Teasers (Bar 2010)

CONSTITUTIONAL LAW Notes, Updates and Teasers (Bar 2010)

A Library Of Liberties vis--vis An Arsenal Of Arms

CONSTITUTIONAL LAW Notes, Updates and Teasers (Bar 2010)

CONSTITUTIONAL LAW Notes, Updates and Teasers (Bar 2010)

Bar Review 2010

A Library Of Liberties vis--vis An Arsenal Of Arms

CONSTITUTIONAL LAW Notes, Updates and Teasers (Bar 2010)

West Virginia State Board of Education v. Barnette, 319 US 624 (1943)

CONSTITUTIONAL LAW Notes, Updates and Teasers (Bar 2010)

CONSTITUTIONAL LAW Notes, Updates and Teasers (Bar 2010)

Manalo v. Roldan-Confesor, 215 SCRA 808 (1992)

CONSTITUTIONAL LAW Notes, Updates and Teasers (Bar 2010)

A Library Of Liberties vis--vis An Arsenal Of Arms

CONSTITUTIONAL LAW Notes, Updates and Teasers (Bar 2010)

University of Santo Tomas Faculty of Civil Law Bar Review 2010

Yao v. Court of Appeals, 344 SCRA 202 (2000)

A Library Of Liberties vis--vis An Arsenal Of Arms

Visayan Refining Co. v. Camus, 40 Phil. 550 (1919)

CONSTITUTIONAL LAW Notes, Updates and Teasers (Bar 2010)

CONSTITUTIONAL LAW Notes, Updates and Teasers (Bar 2010)

A Library Of Liberties vis--vis An Arsenal Of Arms

CONSTITUTIONAL LAW Notes, Updates and Teasers (Bar 2010)

CONSTITUTIONAL LAW Notes, Updates and Teasers (Bar 2010)

Faculty of Civil Law Bar Review 2010

CONSTITUTIONAL LAW Notes, Updates and Teasers (Bar 2010)

CONSTITUTIONAL LAW Notes, Updates and Teasers (Bar 2010)

CONSTITUTIONAL LAW Notes, Updates and Teasers (Bar 2010)

CONSTITUTIONAL LAW Notes, Updates and Teasers (Bar 2010)

CONSTITUTIONAL LAW Notes, Updates and Teasers (Bar 2010)

CONSTITUTIONAL LAW Notes, Updates and Teasers (Bar 2010)

CONSTITUTIONAL LAW Notes, Updates and Teasers (Bar 2010)

CONSTITUTIONAL LAW Notes, Updates and Teasers (Bar 2010)

CONSTITUTIONAL LAW Notes, Updates and Teasers (Bar 2010)

Faculty of Civil Law

CONSTITUTIONAL LAW Notes, Updates and Teasers (Bar 2010)

CONSTITUTIONAL LAW Notes, Updates and Teasers (Bar 2010)

CONSTITUTIONAL LAW Notes, Updates and Teasers (Bar 2010)

overbreadth and vagueness

CONSTITUTIONAL LAW Notes, Updates and Teasers (Bar 2010)

CONSTITUTIONAL LAW Notes, Updates and Teasers (Bar 2010)

CONSTITUTIONAL LAW Notes, Updates and Teasers (Bar 2010)

Bar Review 2010

CONSTITUTIONAL LAW Notes, Updates and Teasers (Bar 2010)

Faculty of Civil Law

See Nixon v. Administrator of General Services, 433 U.S. 425 (1977)

CONSTITUTIONAL LAW Notes, Updates and Teasers (Bar 2010)

CONSTITUTIONAL LAW Notes, Updates and Teasers (Bar 2010)