CONSTITUTIONAL LAW II

General Considerations

A. Concept and Origin of the Bill of RightsThe Bill of rights is a formal and emphatic legislative assertion and declaration of popular rights and liberties; or the summary of the right and liberties of the people or of the principles of constitutional law deemed essential and fundamental. (Hamill vs. Hawks, C.C.A. Okl. 58 F.2d 41, 47)

1. Concept

Inherent and fundamental. One’s rights to life, liberty and property, to free speech, or free press, freedom of worship and assembly, and other fundamental rights may not be submitted to a vote; they depend on the outcome of no elections. The preservation of liberties does not depend on motives. The Bill of Rights is a code of fair play for the less fortunate that must be observed. (PBMEO vs. PBM, [GR L-31195, 5 June 1973])

Not absolute. Police power constitutes an implied limitation on the Bill of Rights. It is rooted in the conception that men in organizing the state and imposing upon its government limitations to safeguard constitutional rights did not intend thereby to enable an individual citizen or a group of citizens to obstruct unreasonably the enactment of such salutary measures calculated to ensure communal peace, safety, good order, and welfare. The Bill of Rights itself does not purport to be an absolute guaranty of individual rights and liberties. Even liberty itself, the greatest of all rights, is not unrestricted license to act accordingly to one’s will. It is subject to the far more overriding demands and requirements of the greater number. (Sangalang vs. IAC, [GR 71169, 25 August 1989])

2. Purpose

to preserve the ideals of liberty, equality and security against the assaults of opportunism, the expediency of the passing hour, the erosion of small encroachments, and the scorn and derision of those who have no patience with general principles. (Justice Cardoso, Nature of Judicial Process, 90-93; Tañada and Fernando Constitution of the Philippines, 1952 ed., 71.)

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. (West Virginia State Board of Education vs. Barnette, 319 U.S. 624, 638)

to protect the people against arbitrary and discriminatory use of police power. This bundle of rights guarantees the preservation of our natural rights which include personal liberty and security against invasion by the government or any of its branches or instrumentalities. Certainly, in the hierarchy of rights, the Bill of Rights takes precedence over the right of the State to prosecute, and when weighed against each other, the scales of justice tilt towards the former. (Allado vs. Diokno [GR 113630, 4 May 1994], citing Hernandez vs. Albano, 19 SCRA 95 [1967])

3. Origin

Post-Roman. The Magna Charta survived the Roman Empire as the foundation of modern civilization in Europe, and has provided the fundamental maxim of distributive justice, suum cuique tribuere.

England. The concessions of Magna Charta were wrung from the king as guaranties against the oppressions and usurpations of his prerogative. It did not enter into the minds of the barons to provide security against their own body or in favor of the commons by limiting the power of parliament; so that bills of attainder, ex post facto laws, laws declaring forfeitures of estates, and other arbitrary acts of legislation which occur so frequently in English history, were never regarded as inconsistent with the law of the land. The omnipotence of parliament over the common law was absolute, even against common right and reason. The actual and practical security for English liberty against legislative tyranny was the power of a free public opinion represented by the commons. In this country written constitutions were deemed essential to protect the rights and liberties of the people against the encroachments of power delegated to their governments, and the provisions of Magna Charta were incorporated into bills of rights, They were limitations upon all the powers of government, legislative as well as executive and judicial.

United States. The constitution of the United States was ordained by descendants of Englishmen, who inherited the traditions of the English law and history; but it was made for an undefined and expanding future, and for a people gathered, and to be gathered, from many nations and of many tongues. While the bill of rights were applied in England only as guards against executive usurpation and tyranny; in the United States, they have become bulwarks also against arbitrary legislation; but in that application, as it would be incongruous to measure and restrict them by the ancient customary English law, they must be held to guaranty, not particular forms of procedure, but the very substance of individual rights to life, liberty, and property.

B. Classification

a. Civil Rights, or civil liberties, are personal, natural rights guaranteed by the Constitution, e.g. freedom of speech, press, freedom from discrimination, etc. Constitutionally, they are restraints on Government (Sowers vs. Ohio Civil Rights Commission, 20 Ohio Misc. 115, 252 N.E.2d 463, 479)

b. Political Rights are those which may be exercised in the formation or administration of the government. Rights of citizens established or recognized by constitutions which give them the power to participate directly or indirectly in the establishment or administration of government. (Black’s Law Dictionary, 6th Edition, 1159)

c. Social and Economic Rights

C. Doctrine of Preferred Freedom (Hierarchy of Rights)

While the Bill of Rights also protects property rights, the primacy of human rights over property rights is recognized. In the hierarchy of civil liberties, the rights of free expression and of assembly occupy a preferred position as they are essential to the preservation and vitality of our civil and political institutions and such priority “gives these liberties the sanctity and the sanction not permitting dubious intrusions.”

Imprescriptibility of human rights; Rationale. Property and property rights can be lost thru prescription; but human rights are imprescriptible. If human rights are extinguished by the passage of time, then the Bill of Rights is a useless attempt to limit the power of government and ceases to be an efficacious shield against the tyranny of officials, of majorities, of the influential and powerful, and of oligarchs - political, economic or otherwise. (PBMEO vs. PBM, [GR L-31195, 5 June 1973])

Tests. The superiority of these freedoms over property rights is underscored by the tests to determine the validity of laws affecting property and human rights.

1. Property rights

A mere reasonable or rational relation between the means employed by the law and its object or purpose — that the law is neither arbitrary nor discriminatory nor oppressive — would suffice to validate a law which restricts or impairs property rights. (PBMEO vs. PBM, [GR L-31195, 5 June 1973])

2. Human rightsA constitutional or valid infringement of human rights requires a more stringent criterion, namely existence of a grave and immediate danger of a substantive evil which the State has the right to prevent. (PBMEO vs. PBM, [GR L-31195, 5 June 1973])!!! Case(s)

1. PBM Employees Org. vs. PBM Co., Inc., 51 SCRA 189 (1973)

D. The Fundamental Powers of the State

The fundamental powers of the State are the

a. police power,b. power of eminent domain, andc. power of taxation.

1. Similarities

a. They are inherent in the State and may be exercised by it without need of express constitutional grant.

b. They are not only necessary but indispensable. The State cannot continue or be effective unless it is able to exercise them.

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

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

e. They are exercised primarily by the legislature.

2. Differences

a. Police power regulates both liberty and property. The power of eminent domain and the power of taxation only affect property rights.

b. Police power and the power of taxation may be exercised only by the government. The power of eminent domain may be exercised by some private entities.

c. The power taken in the exercise of the police power is destroyed because it is noxious or intended for noxious purpose. The property taken under the power of eminent domain and the power of taxation is intended for a public use or purpose and is therefore wholesome.

d. The compensation of the person subjected to the police power is the intangible altruistic feeling that he has contributed to the general welfare. The compensation involved in the other powers is more concrete, to wit, a full and fair equivalent of the property expropriated or protection and public improvements for the taxes paid.

3. Limitations

The exercise of the fundamental powers is subject at all times to the limitations and requirements of the Constitution and may in proper cases be annulled by the courts of justice.

Police Power

A. Definition, Scope & Basis

1. Definition / Description

Police power is the power of promoting the public welfare by restraining and regulating the use of liberty and property. (Freund, The Police Power [Chicago, 1904]).

Police power is the power of the State to place restraints on the personal freedom and property rights of persons for the protection of the public safety, health, and morals or the promotion of the public convenience and general prosperity. The police power is subject to limitations of the Constitution, and especially to the requirement of due process. Police power is the exercise of the sovereign right of a government to promote order, safety, security, health, morals and general welfare within constitutional limits and is an essential attribute of government (Marshall vs. Kansas City, Mo., 355 S.W.2d 877, 883)

Police power has been defined as the “state authority to enact legislation that may interfere with personal liberty or property in order to promote the general welfare.” As defined, it consists of (1) an imposition of restraint upon liberty or property, (2) in order to foster the common good. It is not capable of an exact definition but has been, purposely, veiled in general terms to underscore its all-comprehensive embrace. (Sangalang vs. IAC, [GR 71169, 25 August 1989])

2. ScopePolice power regulates not only the property but, more importantly, the liberty of private persons, and virtually all the people.

The scope of police power, ever-expanding to meet the exigencies of the times, even to anticipate the future where it could be done provides enough room for an efficient and flexible response to conditions and circumstances thus assuring the greatest benefits. (Sangalang vs. IAC, [GR 71169, 25 August 1989])

3. BasisThe justification for police power is found in the ancient Latin maxims, Salus populi est suprema lex, and Sic utere tuo ut alienum non laedas, which call for the subordination of individual benefit to the interests of the greater number.

Salus populi est suprema lex. The welfare of the people is the supreme law. (Lingo Lumber Co. vs. Hayes, Tex. Civ. App. 64 SW 2d. 835, 839)

Sic utere tuo ut alienum non laedas. (Common law maxim meaning that) one should use his own property in such a manner as not to injure that of another (1 Bl. Comm. 306. Chapman vs. Barnett, 131 Ind. App. 30, 169 N.E. 2d 212, 214).

It is a power not emanating from or conferred by the constitution, but inherent in the state, plenary, suitably vague and far from precisely defined, rooted in the conception that man in organizing the state and imposing upon the government limitations to safeguard constitutional rights did not intend thereby to enable individual citizens or group of citizens to obstruct unreasonably the enactment of such salutary measures to ensure communal peace, safety, good order and welfare. (Lozano vs. Martinez, 146 SCRA 323)

The police power of the State is a power coextensive with self-protection, and it is not inaptly termed the ‘law of overwhelming necessity.’ It may be said to be that inherent and plenary power in the State which enables it to prohibit all things hurtful to the comfort, safety, and welfare of society. It finds no specific Constitutional grant for the plain reason that it does not owe its origin to the Charter. Along with the taxing power and eminent domain, it is inborn in the very fact of statehood and sovereignty. It is a fundamental attribute of government that has enabled it to perform the most vital functions of governance. It is the plenary power of the State “to govern its citizens.” (Sangalang vs. IAC, [GR 71169, 25 August 1989])

B. Characteristics

Pervasive and non-waivable. The police power is the pervasive and non-waivable power and authority of the sovereign to secure and promote all the important interests and needs — or the public order — of the general community. (Tablarin vs. Judge Gutierrez, [GR 78164, 31 July 1987])

Essential, insistent and illimitable. The police power of the state has been described as the most essential, insistent and illimitable of powers, which enables it to prohibit all things hurtful to the comfort, safety and welfare of society. (Lozano vs. Martinez, [GR L-63419, 18 December 1986])

Dynamic. Police power is a dynamic force that enables the state to meet the exigencies of changing times. There are occasions when the police power of the state may even override a constitutional guaranty, such as that the constitutional provision on non-impairment of contracts must yield to the police power of the state. (Lozano vs. Martinez, [GR L-63419, 18 December 1986]) Police power is dynamic, not static, must move with the moving society it is supposed to regulate. Once exercised, it is not deemed exhausted and may be exercised repeatedly, as often as it is necessary for the protection or the promotion of the public welfare.

Police power may sometimes use the taxing power as an implement for the attainment of a legitimate police objective.

C. Who exercises said power?

On the legislative organs of the government, whether national or local, primarily rest the exercise of the police power, which is the power to prescribe regulations to promote the health, morals, peace, good order, safety and general welfare of the people. In view of the requirements of due process, equal protection and other applicable constitutional guaranties, however, the exercise of such police power insofar as it may affect the life, liberty or property of any person is subject to judicial inquiry. Where such exercise of police power may be considered as capricious, whimsical, unjust or unreasonable, a denial of due process or a violation of any other applicable constitutional guaranty may call for correction by the courts. (Ermita-Malate Hotel & Motel Operators v. City Mayor, [GR L-24693, 31 July 1967])

1. Police power is lodged primarily in the national legislature. By virtue of a valid delegation of legislative power, it may also be exercised by the President and administrative boards as well as the lawmaking bodies on all municipal levels, including the barangay. Police power cannot be bargained away through the medium of a contract or even a treaty.

2. Police power under the general welfare clause authorizes the municipal council to enact such ordinances and make such regulations, not repugnant to law, as may be necessary to carry into effect and discharge the powers and duties conferred upon it by law and such as shall seem necessary and proper to provide for the health and safety, promote the prosperity, improve the morals, peace, good order, comfort, and convenience of the municipality and the inhabitants thereof, and for the protection of property therein. (Villanueva vs. Castaneda, [GR L-61311, 21 September 1987])

The exercise of police power, the choice of measures or remedies if indeed action is made, and the ascertainment of facts to which police power is to be based, lies in the discretion of the legislative department. No mandamus is available to coerce the exercise of the police power. The only remedy against legislative inaction is a resort to the bar of public opinion, a refusal of the electorate to return to members of the legislature who have been remiss in the discharge of their duties. The remedy chosen by the legislature cannot be attacked on the ground that it is not the best suggested solution, that it is unwise, impractical, inefficacious, or even immoral. These issues are political in nature, and cannot be inquired into by the legislature.

D. Tests of Police Power

1. Lawful subject. The interests of the public generally, as distinguished from those of a particular class, require the exercise of the police power. The enjoyment of private rights, when within the scope of police power, may be subordinated to the interests of the greater number.

2. Lawful means. The means employed are reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals. The lawful objective must be pursued through a lawful method. The means employed for the accomplishment of the police objective must pass to the test of reasonableness and conform to the safeguards embodied in the Bill of Rights for the protection of private rights.

a. Rational Relations Test (property rights)

A mere reasonable or rational relation between the means employed by the law and its object or purpose — that the law is neither arbitrary nor discriminatory nor oppressive — would suffice to validate a law which restricts or impairs property rights. (PBMEO vs. PBM, [GR L-31195, 5 June 1973]) Notwithstanding the “new equal protection approach” with its emphasis on “suspect classification” and “fundamental rights and interests standard,” the “rational relation test” still retains its validity. (Bautista v. Juinio [GR L-50908, 31 January 1984])

b. Clear and present danger Test (human rights)

A constitutional or valid infringement of human rights requires a more stringent criterion, namely existence of a grave and immediate danger of a substantive evil which the State has the right to prevent. (PBMEO vs. PBM, [GR L-31195, 5 June 1973])

!!! Case(s)2. Lozano vs. Martinez, 146 SCRA 323 (1986) 3. Del Rosario vs. Bengzon, 180 SCRA 521 (1989) 4. Tablarin vs. Judge Gutierrez, 152 SCRA 730 (1987)

Zoning and Regulatory Ordinances:

Test of a valid ordinance

An ordinance must conform to the following substantive requirements: (1) it must not contravene the constitution or any statute, (2) it must not be unfair or oppressive,(3) it must not be partial or discriminatory, (4) it must not prohibit but may regulate trade, (5) it must be general and consistent with public policy, and (6) it must not be unreasonable. (Magtajas v. Pryce Properties Corp. [GR 111097, 20 July 1994])!!! Case(s)

5. Ermita-Malate Hotel & Motel Operators v. City Mayor, 20 SCRA 849 (1967) 6. Sangalang vs. IAC, 176 SCRA 719 (1989) 7. Villanueva vs. Castaneda, 154 SCRA 142 (1987) 8. Cruz vs. Paras, 123 SCRA 569 (1983) 9. Velasco vs. Villegas, 120 SCRA 568 (1983) 10. Magtajas vs. Pryce Properties, 234 SCRA 255 (1994) 11. Tano v. Socrates, G.R. 110249, August 27, 1997

Administrative Rules and Regulations!!! Case(s)

12. Bautista vs. Junio, 127 SCRA 329 (1984) 13. Taxicab Operators of Metro Manila vs. BOT, 119 SCRA 597 (1982) 14. Anglo-Fil Trading vs. Lazaro, 124 SCRA 494 (1983)

Eminent Domain

A. DefinitionEminent domain is the power to take private property for public use by the state, municipalities, and private persons or corporations authorized to exercise functions of public character. (Housing Authority of Cherokee National of Oklahoma vs. Langley, Okl., 555 P.2d 1025, 1028)

The right of eminent domain is the right of the state, through its regular organization, to reassert, either temporarily or permanently, its dominion over any portion of the soil of the state on account of public exigency and for the public good. Eminent domain is the highest and most exact idea of property remaining in the government or in the aggregate body of the people in their sovereign capacity. It gives a right to resume the possession of the property in the manner directed by the Constitution and the laws of the State, whenever the public interest requires it. (Black’s law Dictionary, 6th Edition, 523)

The term “expropriation” is practically synonymous with the term “eminent domain.” (Tennessee Gas Transmission Co. vs. Violet Trapping Co., La. App. 200 So.2d. 428, 433)

Eminent domain is an inherent power of the State that enables it to forcibly acquire private lands intended for public use upon payment of just compensation to the owner . Obviously, there is no need to expropriate where the owner is willing to sell under terms also acceptable to the purchaser, in which case an ordinary deed of sale may be agreed upon by the parties.

(Noble v. City of Manila, 67 Phil. 1) It is only where the owner is unwilling to sell, or cannot accept the price or other conditions offered by the vendee, that the power of eminent domain will come into play to assert the paramount authority of the State over the interests of the property owner. Private rights must then yield to the irresistible demands of the public interest on the time-honored justification, as in the case of the police power, that the welfare of the people is the supreme law. (Association of Small Landowners in the Philippines Inc. vs. Secretary of Agrarian Reform [GR 78741, 14 July 1989])

B. Who exercises the power?

Expropriation may be initiated by court action or by legislation. (Republic v. De Knecht, 182 SCRA 142 [1990]). The power of eminent domain is lodged primarily in the national legislature, but its exercise may validly delegated to other government entities and even to quasi-public corporations serving essential public needs or operating public utilities. The utility of the proposed improvement, the extent of the public necessity for its construction, the expediency of constructing it, the suitableness of the location selected and the consequent necessity of taking the land selected for its site, are questions which are essentially political and which are to be exclusively determined by the legislature, and are usually not subject to judicial review.

The following may exercise the power of expropriation:1. The Congress2. The President of the Philippines3. The various local legislative bodies4. Certain public corporations5. Quasi-public corporations (Example, quasi-public corporation: PEZA)

Section 23 (Eminent Domain) of Presidential Decree 66, provides that:

For the acquisition of rights of way, or of any property for the establishment of export processing zones, or of low-cost housing projects for the employees working in such zones, or for the protection of watershed areas, or for the construction of dams, reservoirs, wharves, piers, docks, quays, warehouses and other terminal facilities, structures and approaches thereto, the Authority shall have the right and power to acquire the same by purchase, by negotiation, or by condemnation proceedings. Should the authority elect to exercise the right of eminent domain, condemnation proceedings shall be maintained by and in the name of the Authority and it may proceed in the manner provided for by law.

!!! Case(s)15. City of Manila vs. Chinese Cemetery of Manila, 40 Phil 349 (1919) 16. Moday v. Court of Appeals, 268 SCRA 368 (1997)

C. Constitutional limitationArt. III, Sec. 9

Section 9. Private property shall not be taken for public use without just compensation.

The exercise of the right of eminent domain, whether directly by the State, or by its authorized agents, is necessary in derogation of private rights, and the rule in that case is that the authority must be strictly construed. No species of property is held by individuals with greater tenacity, and none is guarded by the Constitution and laws more sedulously, than the right to the freehold of inhabitants. When the legislature interferes with that right and, for greater public purposes, appropriates the land of an individual without his consent, the plain meaning of the law should not be enlarged by doubtful interpretation. (Bensley vs. Mountainlake Water Co., 13 Cal. 306, and cases cited 73 Am. Dec., 576)

The power of eminent domain does not depend for its existence on a specific grant in the constitution. It is inherent in sovereignty and exists in a sovereign state without any recognition of it in the constitution. The provisions found in most of the state constitutions relating to the taking of property for the public use do not by implication grant the power to the government of the state, but limit a power which would otherwise be without limit. (Visayan Refining Co. v. Camus [40 Phil. 550]). The constitutional restraints are public use and just compensation.

D. Distinguished from destruction due to necessity

The destruction of the property does not come under the right of eminent domain, but under the right of necessity, of self-preservation. The right of necessity arises under the laws of society or society itself. It is the right of self-defense, of self-preservation, whether applied to persons or to property. It is a private right vested in every individual, and with which the right of the state or state necessity has nothing to do (American Print Works vs. Lawrence, 23 N.J.L. 590). Destruction from necessity may be validly undertaken even by private individuals. Such is not allowed in the case of eminent domain. Further, destruction from necessity cannot require the conversion of the property taken to public use, nor is there any need for the payment of compensation.

E. Objects of Expropriation

Anything that can come under the dominion of man is subject to expropriation. This include real and personal, tangible and intangible properties. Even property already devoted to public use is still subject to expropriation, provided this is done directly by the national legislature or under a specific grant of authority to delegate. The only exceptions to this rule are money and choses in action. Expropriation of money is futile inasmuch as payment of just compensation is also money. A chose in action is essentially conjectural as to its validity and its value.

A chose in action is the right of proceeding in a court of law to procure payment of sum of money, or right to recover a personal chattel or a sum of money by action (Gregory vs. Colvin, 235 Ark. 1007, 363 S.W.2d 539, 540); or is the right to receive or recover a debt, demand, or damages on a cause of action ex contractu or for a tort or omission of a duty (Moran vs. Adkerson, 168 Tenn. 372, 79 S.W.2d 44, 45)

Normally, the power of eminent domain results in the taking or appropriation of title to, and possession of, the expropriated property; but no cogent reason appears why said power may not be availed of to impose only a burden upon the owner of condemned property, without loss of title and possession. Real property may, through expropriation, be subjected to an easement of right of way.

Property subject of expropriation must be by its nature or condition wholesome, as it is intended to be devoted to a public use.

!!! Case(s)17. RP. v. PLDT, 26 SCRA 620 (1969)

F. Where Expropriation Suit is Filed

An expropriation suit is incapable of pecuniary estimation. Accordingly, it falls within the jurisdiction of the regional trial courts, regardless of the value of the subject property. (Barangay San Roque v. Heirs of Pastor [GR 138896, 20 June 2000])

See Rule 67 of the Rules of Court.!!! Case(s)

18. Barangay San Roque v. Heirs of Pastor, GR 138896 June 20, 2000

G. TakingDefinition and Scope

Common. A physical dispossession of the owner, as when he is ousted from his land or relieved of his personal property, and is thus deprived of all beneficial use and enjoyment of his property.

Legal. To take is to lay hold of, to gain or receive in possession, to seize, to deprive one of the use or possession of, or to assume ownership (Black’s Law Dictionary, 6th Edition, 1453). There is taking of property when government action directly interferes with or substantially disturbs the owner’s use and enjoyment of the property (Brothers vs. US., C.A.Or., 594 F.2d 740, 741). To constitute a “taking,” within constitutional limitation, it is not essential that there be physical seizure or appropriation, and any actual or material interference with private property rights constitutes a taking (Board of Com’rs of Lake County vs. Mentor Lagoons Inc., Com.Pl., 6 Ohio Msc. 126, 216 N.E.2d 643, 646). Also, taking of property is affected if application of zoning law denies property owner of economically viable use of his land, which can consist of preventing best use of land or extinguishing fundamental attribute of ownership (Vari-Build Inc. vs. Reno, D.C.Nev., 596 F. Supp. 673, 679).

The general rule at least is that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking. (Pennsylvania Coal Co. v. Mahon, 260 US 393)

1. Taking under police power and power of eminent domain distinguished

Taking under police power and taking under the power of eminent domain, however, should be distinguished. The power being exercised was eminent domain when the property involved was wholesome and intended for a public use. Property condemned under the police power is noxious or intended for a noxious purpose, such as a building on the verge of collapse, which should be demolished for the public safety, or obscene materials, which should be destroyed in the interest of public morals. The confiscation of such property is not compensable, unlike the taking of property under the power of expropriation, which requires the payment of just compensation to the owner. (City of Baguio v. NAWASA, 106 Phil. 144)

A. Taking under police power

If an owner is deprived of his property outright under the State’s police power, the property is generally not taken for public use but is urgently and summarily destroyed in order to promote the general welfare.

Every restriction upon the use of property imposed in the exercise of the police power deprives the owner of some right theretofore enjoyed, and is, in that sense, an abridgment by the State of rights in property without making compensation. But restriction imposed to protect the public health, safety or morals from dangers threatened is not a taking. The restriction is merely the prohibition of a noxious use. The property so restricted remains in the possession of its owner. The state does not appropriate it or make any use of it. The state merely prevents the owner from making a use which interferes with paramount rights of the public. Whenever the use prohibited ceases to be noxious — as it may because of further changes in local or social conditions — the restriction will have to be removed and the owner will again be free to enjoy his property as heretofore.

B. Taking under the power of eminent domain

“Taking” under the power of eminent domain may be defined generally as entering upon private property for more than a momentary period, and, under the warrant or color of legal authority, devoting it to a public use, or otherwise informally appropriating or injuriously affecting it in such a way as substantially to oust the owner and deprive him of all beneficial enjoyment thereof. (Penn. vs. Carolina Virginia Coastal Corporation, 57 SE 2d 817)

In the context of the State’s inherent power of eminent domain, there is a “taking” when the owner is actually deprived or dispossessed of his property; when there is a practical destruction or a material impairment of the value of his property or when he is deprived of the ordinary use thereof. (U.S. v. Causby, 382 U.S. 256, cited in Municipality of La Carlota v. NAWASA, 12 SCRA 164.) There is a “taking” in this sense when the expropriator enters private property not only for a momentary period but for a more permanent duration, for the purpose of devoting the property to a public use in such a manner as to oust the owner and deprive him of all beneficial enjoyment thereof (Republic v. Vda. de Castelvi, 58 SCRA 336 [1974]). For ownership, after all, “is nothing without the inherent rights of possession, control and enjoyment. Where the owner is deprived of the ordinary and beneficial use of his property or of its value by its being diverted to public use, there is taking within the Constitutional sense.” (Municipality of La Carlota v. NAWASA, 12 SCRA 164)

2. Stages

The expropriation of lands consists of two stages. The first is concerned with the determination of the authority of the plaintiff to exercise the power of eminent domain and the propriety of its exercise in the context of the facts involved in the suit. It ends with an order, if not of dismissal of the action, “of condemnation declaring that the plaintiff has a lawful right to take the property sought to be condemned, for the public use or purpose described in the complaint, upon the payment of just compensation to be determined as of the date of the filing of the complaint.” The second phase of the eminent domain action is concerned with the determination by the court of the just compensation for the property sought to be taken.” This is done by the court with the assistance of not more than three (3) commissioners. (Municipality of Biñan v. Garcia, 180 SCRA 576, 583-584 [1989]) It is only upon the completion of these two stages that expropriation is said to have been completed. Moreover, it is only upon payment of just compensation that title over the property passes to the government. (Association of Small Landowners in the Philippines, Inc. v. Secretary of Agrarian Reform, 175 SCRA 343 [1989]). Therefore, until the action for expropriation has been completed and terminated, ownership over the property being expropriated remains with the registered owner. Consequently, the latter can exercise all rights pertaining to an owner, including the right to dispose of his property, subject to the power of the State ultimately to acquire it through expropriation.

Requisites

1. The expropriator must enter a private property.2. The entry must be for more than a momentary period.3. The entry must be under warrant or color of legal authority.4. The property must be devoted to public use or otherwise informally appropriated

or injuriously affected.5. The utilization of the property for public use must be in such a way as to oust the

owner and deprive him of beneficial enjoyment of the property.

!!! Case(s)19. Republic vs. Castelvi, 58 SCRA 336 (1974) 20. City Govt. of Quezon City vs. Ericta, 122 SCRA 759 (1983)

Deprivation of Use

1. In General

Easement, if permanent and not merely temporary, normally would be the equivalent of a fee interest. It would be a definite exercise of complete dominion and control over the surface of the land. (United States vs. Causby [328 US 256, 27 May 1946])

2. Local Government Units

An ordinance which permanently so restricts the use of property that it can not be used for any reasonable purpose goes, it is plain, beyond regulation and must be recognized as a taking of the property. The only substantial difference, in such case, between restriction and actual taking, is that the restriction leaves the owner subject to the burden of payment of taxation, while outright confiscation would relieve him of that burden. (Arverne Bay Constr. Co. vs. Thatcher (N.Y.) 117 ALR. 1110, 1116). A regulation which substantially deprives an owner of all beneficial use of his property is confiscation and is a deprivation within the meaning of the 14th Amendment. (Sundlum vs. Zoning Bd., 145 Atl. 451; also Eaton vs. Sweeny, 177 NE 412; Taylor vs. Jacksonville, 133 So. 114). Specifically, while property may be regulated in the interest of the general welfare such as to regard the beautification of neighborhoods as conducive to the comfort and happiness of residents), and in its pursuit, the State may prohibit structures offensive to the sight, the State may not, under the guise of police power, permanently divest owners of the beneficial use of their property and practically confiscate them solely to preserve or assure the aesthetic appearance of the community. (People vs. Fajardo [GR L-12172, 29 August 1958])

Zoning which admittedly limits property to a use which can not reasonably be made of it cannot be said to set aside such property to a use but constitutes the taking of such property without just compensation. Use of property is an element of ownership therein. Regardless of the opinion of zealots that property may properly, by zoning, be utterly destroyed without compensation, such principle finds no support in the genius of our government nor in the principles of justice as we known them. Such a doctrine shocks the sense of justice. If it be of public benefit that property remain open and unused, then certainly the public, and not the private individuals, should bear the cost of reasonable compensation for such property under the rules of law governing the condemnation of private property for public use. (Tews vs. Woolhiser (1933) 352 111. 212, 185 N.E. 827)

!!! Case(s)21. Republic vs. Fajardo , 104 Phil.443 (1958) 22. Napocor vs. Gutierrez, 193 SCRA 1 (1991) 23. U.S. v. Causby, 328 U.S. 256 (1946)

Priority in Expropriation

1. Urban Land Reform

The governing law that deals with the subject of expropriation for purposes of urban land reform and housing is Republic Act No. 7279 (Urban Development and Housing Act of 1992) and Sections 9 and 10 of which specifically provide as follows:

Section 9. Priorities in the acquisition of Land. — Lands for socialized housing shall be acquired in the following order:

a. Those owned by the Government or any of its sub-divisions, instrumentalities, or agencies, including government-owned or -controlled corporations and their subsidiaries;

b. Alienable lands of the public domain;c. Unregistered or abandoned and idle lands;d. Those within the declared Areas for Priority Development, Zonal

Improvement sites, and Slum Improvement and Resettlement Program sites which have not yet been acquired;

e. Bagong Lipunan Improvement of Sites and Services or BLISS sites which have not yet been acquired; and

f. Privately-owned lands.

Where on-site development is found more practicable and advantageous to the beneficiaries, the priorities mentioned in this section shall not apply. The local government units shall give budgetary priority to on-site development of government lands.

Section 10. Modes of Land Acquisition. — The modes of acquiring lands for purposes of this Act shall include, among others, community mortgage, land swapping, land assembly or consolidation, land banking, donation to the Government, joint-venture agreement, negotiated purchase, and expropriation: Provided, however, That expropriation shall be resorted to only when other modes of acquisition have been exhausted: Provided further, That where expropriation is resorted to, parcels of land owned by small property owners shall be exempted for purposes of this Act: Provided, finally, That abandoned property, as herein defined, shall be reverted and escheated to the State in a proceeding analogous to the procedure laid down in Rule 91 of the Rules of Court.

For the purpose of socialized housing, government-owned and foreclosed properties shall be acquired by the local government units, or by the National Housing Authority primarily through negotiated purchase: Provided, That qualified beneficiaries who are actual occupants of the land shall be given the right of first refusal.

!!! Case(s)24. Filstream International v. CA, 284 SCRA 716 (1998) 25. Estate or Heirs of Reyes vs. City of Manila, G.R. No. 132431, February 13, 2004 26. City of Mandaluyong v. Francisco, G.R. No. 137152, January 29, 2001

H. Public use

Over many years and in a multitude of cases the courts have vainly attempted to define comprehensively the concept of a public use and to formulate a universal test. They have found here as elsewhere that to formulate anything ultimate, even though it were possible, would, in an inevitably changing world, be unwise if not futile. (Matter of New York City Housing Authority v. Muller, 1 NE 2d 153)

Public Use, as traditionally understood, means any use directly available to the general public as a matter of right and not merely of forbearance or accommodation. (Justice Cruz, Constitutional Law, 2000 edition, 74)

Public Use is “the constitutional and statutory basis for taking property by eminent domain. For condemnation purposes, ‘public use’ is one which confers some benefit or advantage to the public; it is not confined to actual use by public. It is measured in terms of right of public to use proposed facilities for which condemnation is sought and, as long as public has right of use, whether exercised by one or many members of public, a ‘public advantage’ or ‘public benefit’ accrues sufficient to constitute a public use.” (Montana Power Co. vs. Bokma, Mont. 457 P.2d 769, 772, 773.)

Public use, in constitutional provisions restricting the exercise of the right to take private property in virtue of eminent domain, means a use concerning the whole community as distinguished from particular individuals. But each and every member of society need not be equally interested in such use, or be personally and directly affected by it; if the object is to satisfy a great public want or exigency, that is sufficient. (Rindge Co. vs. Los Angeles County, 262 U.S. 700, 43 S.Ct. 689, 692, 67 L.Ed. 1186). The term may be said to mean public usefulness, utility, or advantage, or what is productive of general benefit. It may be limited to the inhabitants of a small or restricted locality, but must be in common, and not for a particular individual. The use must be a needful one for the public, which cannot be surrendered without obvious general loss and inconvenience. A ‘public use’ for which land may be taken defies absolute definition for it changes with varying conditions of society, new appliances in the sciences, changing conceptions of scope and functions of government, and other differing circumstances brought about by an increase in population and new modes of communication and transportation. (Katz v. Brandon, 156 Conn., 521, 245 A.2d 579,586.)

The taking to be valid must be for public use. There was a time when it was felt that a literal meaning should be attached to such a requirement. Whatever project is undertaken must be for the public to enjoy, as in the case of streets or parks. Otherwise, expropriation is not allowable. It is not any more. As long as the purpose of the taking is public, then the power of eminent domain comes into play. The constitution in at least two cases determines what is public use. One is the expropriation of lands to be subdivided into small lots for resale at cost to individuals. The other is in the transfer, through the exercise of this power, of utilities and other private enterprise to the government. It is accurate to state then that at present whatever may be beneficially employed for the general welfare satisfies the requirement of public use. (Fernando, The Constitution of the Philippines, 2nd ed., pp. 523-524)

!!! Case(s)27. Heirs of Juancho Ardona vs. Reyes, 125 SCRA 220 (1983) 28. Sumulong vs. Guerrero, 154 SCRA 461 (1987) 29. Province of Camarines Sur vs. CA, 222 SCRA 170 (1993) 30. Estate of Jimenez v. PEZA, G.R. No. 137285, January 16, 2001

I. Genuine Necessity

In the exercise of eminent domain, only as much land can be taken as is necessary for the legitimate purpose of the condemnation. The term “necessary”, in this connection, does not

mean absolutely indispensable but requires only a reasonable necessity of the taking for the stated purpose, growth and future needs of the enterprise. (Manila Railroad Co. v. Mitchel, 50 Phil 832, 837-838 [1927]).

The Legislature may directly determine the necessity for appropriating private property for a particular improvement for public use, and it may select the exact location of the improvement. In such a case, it is well-settled that the utility of the proposed improvement, the existence of the public necessity for its construction, the expediency of constructing it, the suitableness of the location selected, are all questions exclusively for the legislature to determine, and the courts have no power to interfere or to substitute their own views for those of the representatives of the people. In the absence of some constitutional or statutory provision to the contrary, the necessity and expediency of exercising the right of eminent domain are questions essentially political and not judicial in their character. (City of Manila v. Chinese Community of Manila, 40 Phil 349 [1919])

!!! Case(s)32. Mun. of Meycayauan vs. IAC, 157 SCRA 640 (1988) 33. De Knecht vs. Bautista, 100 SCRA 660 (1980) 34. Republic vs. De Knecht, G.R. 87351, February 12, 1990 35. PPI v. Comelec, 244 SCRA 272 (1995) 36. NHA v. Heirs of Isidro Guivelondo, G.R. No. 154411. June 19, 2003

J. Just CompensationDefinedJust compensation means the value of the property at the time of the taking. It means a fair and full equivalent for the loss sustained. All the facts as to the condition of the property and its surroundings, its improvements and capabilities, should be considered. (Export Processing Zone Authority vs. Dulay [GR L-59603, 29 April 1987])

Just compensation is defined as the full and fair equivalent of the property taken from its owner by the expropriator (Manila Railroad Co. v. Velasques, 32 Phil. 286). It has been repeatedly stressed by this Court that the measure is not the taker’s gain but the owner’s loss. (Province of Tayabas v. Perez, 66 Phil. 467) The word “just” is used to intensify the meaning of the word “compensation” to convey the idea that the equivalent to be rendered for the property to be taken shall be real, substantial, full, ample (City of Manila v. Estrada, 25 Phil. 208).

Just compensation means not only the correct amount to be paid to the owner of the land but also the payment of the land within a reasonable time from its taking. Without prompt payment, compensation cannot be considered “just” for then the property owner is made to suffer the consequence of being immediately deprived of his land while being made to wait for a decade or more before actually receiving the amount necessary to cope with his loss. (Eslaban vs. Vda. de Onorio [GR 146062, 28 June 2001])

!!! Case(s)37. Eslaban v. De Onorio, G.R. No. 146062, June 28, 2001 38. RP vs. IAC, et al., G.R. No. 71176, May 21, 1990 39. City of Cebu v. Spouses Dedamo, G.R. No. 142 971, May 07, 2002

Determination of Just Compensation

A. In General

The determination of just compensation is a function addressed to the courts of justice and may not be usurped by any other branch or official of the government. (Export Processing Zone Authority vs. Dulay [GR L-59603, 29 April 1987])

Upon the rendition of the order of expropriation, the court shall appoint not more than three (3) competent and disinterested persons as commissioners to ascertain and report to the court the just compensation for the property sought to be taken. The order of appointment shall designate the time and place of the first session of the hearing to be held by the commissioners and specify the time within which their report shall be submitted to the court. (Section 5, Rule 67, 1997 Rules of Civil Procedure) The commissioners shall assess the consequential damages to the property not taken and deduct from such consequential damages the consequential benefits to be derived by the owner from the public use or purpose of the property taken, the operation of its franchise by the corporation or the carrying on of the business of the corporation or person taking the property. But in no case shall the consequential benefits assessed exceed the consequential damages assessed, or the owner be deprived of the actual value of his property so taken. (Section 6, Rule 67, 1997 Rules of Civil Procedure)

Still, according to section 8 of Rule 67, the court is not bound by the commissioners’ report. It may make such order or render such judgment as shall secure to the plaintiff the property essential to the exercise of his right of condemnation, and to the defendant just compensation for the property expropriated. This Court may substitute its own estimate of the value as gathered from the record (Manila Railroad Company v. Velasquez, 32 Phil. 286).

B. Local Government Units

Section 19, Republic Act 7160. Eminent Domain. – A local government unit may, through its chief executive and acting pursuant to an ordinance, exercise the power of eminent domain for public use, or purpose or welfare for the benefit of the poor and the landless, upon payment of just compensation, pursuant to the provisions of the Constitution and pertinent laws: Provided, however, That the power of eminent domain may not be exercised unless a valid and definite offer has been previously made to the owner, and such offer was not accepted: Provided, further, That the local government unit may immediately take possession of the property upon the filing of the expropriation proceedings and upon making a deposit with the proper court of at least fifteen percent (15%) of the fair market value of the property based on the current tax declaration of the property to be expropriated: Provided finally, That, the amount to be paid for the expropriated property shall be determined by the proper court, based on the fair market value at the time of the taking of the property.

!!! Case(s)

40. EPZA vs. Dulay, 149 SCRA 305 (1987)

When Determined

A. When

Where the institution of an expropriation action precedes the taking of the property subject thereof, the just compensation is fixed as of the time of the filing of the complaint. This is so provided by the Rules of Court, the assumption of possession by the expropriator ordinarily being conditioned on its deposits with the National or Provincial Treasurer of the value of the property as provisionally ascertained by the court having jurisdiction of the proceedings. There are instances, however, where the expropriating agency takes over the property prior to the expropriation suit. In these instances, the just compensation shall be determined as of the time of taking, not as of the time of filing of the action of eminent domain. (Ansaldo vs. Tantuico [GR 50147, 3 August 1990])

When plaintiff takes possession before the institution of the condemnation proceedings, the value should be fixed as of the time of the taking of said possession, not of filing of the complaint and the latter should be the basis for the determination of the value, when the taking of the property involved coincides with or is subsequent to, the commencement of the proceedings. Indeed, otherwise, the provision of Rule 69, Section 3, directing that compensation ‘be determined as of the date of the filing of the complaint’ would never be operative. (Republic v. Philippine National Bank, 1 SCRA 957 [1961])

B. Why

Where property is taken ahead of the filing of the condemnation proceedings, the value thereof may be enhanced by the public purpose for which it is taken; the entry by the plaintiff upon the property may have depreciated its value thereby; or, there may have been a natural increase in the value of the property from the time the complaint is filed, due to general economic conditions. The owner of private property should be compensated only for what he actually loses; it is not intended that his compensation shall extend beyond his loss or injury. And what he loses is only the actual value of his property at the time it is taken. This is the only way that compensation to be paid can be truly just; i.e., ”just not only to the individual whose property is taken,” “but to the public, which is to pay for it.” (Republic v. Lara, 50 O.G. 5778 [1954])

!!! Case(s)41. Ansaldo vs. Tantuico, G.R. 50147 August 3, 1990 42. NPC v. CA, 254 SCRA 577 (1996)

Manner of PaymentA. Manner

1. Traditional

Although it may be said that “where the State itself is the expropriator, it is not necessary for it to make a deposit upon its taking possession of the condemned property, as ‘the compensation is a public charge, the good faith of the public is pledged for its payment, and all the resources of taxation may be employed in raising the amount.’” (Lewis, Law of Eminent Domain, 3rd Edition, pp. 1166-1167); the method of expropriation adopted in Philippine jurisdiction is such as to afford absolute reassurance that no piece of land can be finally and irrevocably taken from an unwilling owner until compensation is paid. (Visayan Refining Co. v. Camus and Paredes, 40 Phil. 550) Further, the Rules provide that “upon the filing of the complaint or at any time thereafter and after due notice to the defendant, the plaintiff shall have the right to take or enter upon the possession of the real property involved if he deposits with the authorized government depositary an amount equivalent to the assessed value of the property for purposes of taxation to be held by such bank subject to the orders of the court. Such deposit shall be in money, unless in lieu thereof the court authorizes the deposit of a certificate of deposit of a government bank of the Republic of the Philippines payable on demand to the authorized government depositary. If personal property is involved, its value shall be provisionally ascertained and the amount to be deposited shall be promptly fixed by the court. xxx” (Section 2, Rule 67, 1997 Rules of Civil Procedure)

2. Revolutionary

Section 16(e) of the CARP Law provides that “Upon receipt by the landowner of the corresponding payment or, in case of rejection or no response from the landowner, upon the deposit with an accessible bank designated by the DAR of the compensation in cash or in LBP bonds in accordance with this Act, the DAR shall take immediate possession of the land and shall request the proper Register of Deeds to issue a Transfer Certificate of Title (TCT) in the name of the Republic of the Philippines. The DAR shall thereafter proceed with the redistribution of the land to the qualified beneficiaries.” (Association of Small Landowners in the Philippines Inc. vs. Secretary of Agrarian Reform [GR 78741, 14 July 1989])

B. Medium

1. Traditional

The fundamental rule in expropriation matters is that the owner of the property expropriated is 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. Just compensation has always been understood to be the just and complete equivalent of the loss which the owner of the thing expropriated has to suffer by reason of the expropriation. (Manila Railroad Co. v. Velasquez, 32 Phil. 286)

Just compensation means the equivalent for the value of the property at the time of its taking. Anything beyond that is more, and anything short of that is less, than just compensation. It means a fair and full equivalent for the loss sustained, which is the measure of the indemnity, not whatever gain would accrue to the expropriating entity. The market

value of the land taken is the just compensation to which the owner of condemned property is entitled, the market value being 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 for such property. (J.M. Tuazon Co. v. Land Tenure Administration, 31 SCRA 413)

The medium of payment of compensation is ready money or cash. The condemnor cannot compel the owner to accept anything but money, nor can the owner compel or require the condemnor to pay him on any other basis than the value of the property in money at the time and in the manner prescribed by the Constitution and the statutes. When the power of eminent domain is resorted to, there must be a standard medium of payment, binding upon both parties, and the law has fixed that standard as money in cash. (Mandl v. City of Phoenix, 18 p 2d 273.)

Part cash and deferred payments are not and cannot, in the nature of things, be regarded as a reliable and constant standard of compensation. (Sacremento Southern R. Co. v. Heilbron, 156 Cal. 408, 104 pp. 979, 980.)

“Just compensation” for property taken by condemnation means a fair equivalent in money, which must be paid at least within a reasonable time after the taking, and it is not within the power of the Legislature to substitute for such payment future obligations, bonds, or other valuable advantage. (City of Waterbury v. Platt Bros. & Co., 56 A 856, 76 Conn, 435 citing Butler v. Ravine Road Sewer Com’rs, 39 N.J.L. 665; Bloodgood v. Mohawk v. H.R.R. Co., N.Y. 18 Wend. 9 35, 31 Am. Dec. 313; Sanborn v. Helden, 51 Cal 266; Burlington & C.R. Co. v. Schweikart, 14 p. 329, 10 Colo, 178; 23 Words and Phrases, pl. 460.)

2. Revolutionary

The records of the Constitutional Commission do not provide any categorical agreement among the members regarding the meaning to be given the concept of just compensation as applied to the comprehensive agrarian reform program being contemplated. There was the suggestion to “fine tune” the requirement to suit the demands of the project even as it was also felt that they should “leave it to Congress” to determine how payment should be made to the landowner and reimbursement required from the farmer-beneficiaries. Such innovations as “progressive compensation” and “State-subsidized compensation” were also proposed. In the end, however, no special definition of the just compensation for the lands to be expropriated was reached by the Commission. (Record of the Constitutional Commission, Vol. 2, pp. 647, 704; Vol. 3, pp. 16-20, 243-247.)

The expropriation in Comprehensive Agrarian Reform affects all private agricultural lands whenever found and of whatever kind as long as they are in excess of the maximum retention limits allowed their owners. This kind of expropriation is intended for the benefit not only of a particular community or of a small segment of the population but of the entire Filipino nation, from all levels of our society, from the impoverished farmer to the land-glutted owner. Its purpose does not cover only the whole territory of this country but goes beyond in time to the foreseeable future, which it hopes to secure and edify with the vision and the sacrifice of the present generation of Filipinos. Such a program will involve not mere

millions of pesos but hundreds of billions of pesos, far more indeed than the amount of P50 billion initially appropriated. Such amount is in fact not even fully available at this time. Since there is nothing in the records either that militates against the assumptions the Court is making of the general sentiments and intention of the members on the content and manner of the payment to be made to the landowner in the light of the magnitude of the expenditure and the limitations of the expropriator, the Court declared that the content and manner of the just compensation provided for in Section 18 of the CARP Law is not violative of the Constitution. The invalidation of Section 18 will result in the nullification of the entire program, killing the farmer’s hopes even as they approach realization and resurrecting the spectre of discontent and dissent in the restless countryside. That is not the intention of the Constitution.

SEC. 18. Valuation and Mode of Compensation. — The LBP shall compensate the landowner in such amount as may be agreed upon by the landowner and the DAR and the LBP, in accordance with the criteria provided for in Sections 16 and 17, and other pertinent provisions hereof, or as may be finally determined by the court, as the just compensation for the land.

The compensation shall be paid in one of the following modes, at the option of the landowner:

1. Cash payment, under the following terms and conditions: a. For lands above fifty (50) hectares, insofar as the excess

hectarage is concerned — Twenty-five percent (25%) cash, the balance to be paid in government financial instruments negotiable at any time.

b. For lands above twenty-four (24) hectares and up to fifty (50) hectares — Thirty percent (30%) cash, the balance to be paid in government financial instruments negotiable at any time.

c. For lands twenty-four (24) hectares and below — Thirty-five percent (35%) cash, the balance to be paid in government financial instruments negotiable at any time.

2. Shares of stock in government-owned or controlled corporations, LBP preferred shares, physical assets or other qualified investments in accordance with guidelines set by the PARC;

3. Tax credits which can be used against any tax liability;4. LBP bonds, which shall have the following features:

a. Market interest rates aligned with 91-day treasury bill rates. Ten percent (10%) of the face value of the bonds shall mature every year from the date of issuance until the tenth (10th) year: Provided, That should the landowner choose to forego the cash portion, whether in full or in part, he shall be paid correspondingly in LBP bonds;

b. Transferability and negotiability. Such LBP bonds may be used by the landowner, his successors-in-interest or his assigns, up to the amount of their face value, for any of the following:

i. Acquisition of land or other real properties of the government, including assets under the Asset

Privatization Program and other assets foreclosed by government financial institutions in the same province or region where the lands for which the bonds were paid are situated;

ii. Acquisition of shares of stock of government owned or controlled corporations or shares of stock owned by the government in private corporations;

iii. Substitution for surety or bail bonds for the provisional release of accused persons, or for performance bonds;

iv. Security for loans with any government financial institution, provided the proceeds of the loans shall be invested in an economic enterprise, preferably in a small and medium-scale industry, in the same province or region as the land for which the bonds are paid;

v. Payment for various taxes and fees to government: Provided, That the use of these bonds for these purposes will be limited to a certain percentage of the outstanding balance of the financial instruments; Provided, further, That the PARC shall determine the percentages mentioned above;

vi. Payment for tuition fees of the immediate family of the original bondholder in government universities, colleges, trade schools, and other institutions;

vii. Payment for fees of the immediate family of the original bondholder in government hospital; and

viii. Such other uses as the PARC may from time to time allow.

!!! Case(s)43. Assoc. of Small Landowners v. DAR, 175 SCRA 343 (1989) 44. DAR v. CA, 249 SCRA 149 (1995)

Trial with Commissioners

In an expropriation case where the principal issue is the determination of just compensation, a trial before the Commissioners is indispensable to allow the parties to present evidence on the issue of just compensation. Trial with the aid of the commissioners is a substantial right that may not be done away with capriciously or for no reason at all. (Manila Electric Company (MERALCO) vs. Pineda [GR 59791, 13 February 1992])!!! Case(s)

45. Meralco v. Pineda, 206 SCRA 196 (1992) 46. NPC v. Henson, G.R. No. 129998, December 29, 1998

Legal Interest for Expropriation Cases

Article 2209 of the Civil Code, which provides that “If the obligation consists in the payment of a sum of money, and the debtor incurs a delay, the indemnity for damages, there being no stipulation to the contrary, shall be the payment of the interest agreed upon, and in the absence of stipulation, the legal interest, which is 6% per annum.” Central Bank Circular 416 does not apply as it only applies to loan or forbearance of money, goods or credits and to judgments involving such loan or forbearance of money, goods or credits. (National Power Corporation vs. Angas [GR 60225-26, 8 May 1992])

!!! Case(s)47. NPC v. Angas, 208 SCRA 542 (1992) 48. Republic v. Salem Investment Corp., G.R. 137569 23 June 2000 49.

Writ of Possession

1. Issuance of writ of possession

A writ of execution may be issued by a court upon the filing by the government of a complaint for expropriation sufficient in form and substance and upon deposit made by the government of the amount equivalent to the assessed value of the property subject to expropriation. Upon compliance with these requirements, the issuance of the writ of possession becomes ministerial. (Biglang-awa v. Bacalla, GR 139927 and 139936, 22 November 2000.)

It is imperative that before a writ of possession is issued by the Court in expropriation proceedings, the following requisites must be met: (1) There must be a Complaint for expropriation sufficient inform and in substance; (2) A provisional determination of just compensation for the properties sought to be expropriated must be made by the trial court on the basis of judicial (not legislative or executive) discretion; and (3) The deposit requirement under Section 2, Rule 67 must be complied with. (Ignacio v. Guerrero [GR L-49088, 29 May 1987])

2. Remedy for party assailing validity of writ of possession

A petition for review could not have been resorted to inasmuch as the order of the trial court granting a writ of possession was merely interlocutory from which no appeal could be taken. Rule 45, §1 of the 1997 Rules of Civil Procedure applies only to final judgments or orders of the Court of Appeals, the Sandiganbayan, and the Regional Trial Court. A petition for certiorari is the suitable remedy in view of Rule 65, §1 which provides “When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper

court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require.”

!!! Case(s)49. City of Manila v. Oscar Serrano, G.R. No. 142304, June 20, 2001

K. Expropriation of Utilities, Landed Estates and Municipal Property

Art. XII, Sec. 18

Section 18. The State may, in the interest of national welfare or defense, establish and operate vital industries and, upon payment of just compensation, transfer to public ownership utilities and other private enterprises to be operated by the Government.

Art. XIII, Sec. 4

Section 4. The State shall, by law, undertake an agrarian reform program founded on the right of farmers and regular farmworkers who are landless, to own directly or collectively the lands they till or, in the case of other farmworkers, to receive a just share of the fruits thereof. To this end, the State shall encourage and undertake the just distribution of all agricultural lands, subject to such priorities and reasonable retention limits as the Congress may prescribe, taking into account ecological, developmental, or equity considerations, and subject to the payment of just compensation. In determining retention limits, the State shall respect the right of small landowners. The State shall further provide incentives for voluntary land-sharing.

Art. XIII, Sec. 9

Section 9. The State shall, by law, and for the common good, undertake, in cooperation with the private sector, a continuing program of urban land reform and housing which will make available at affordable cost, decent housing and basic services to under-privileged and homeless citizens in urban centers and resettlement areas. It shall also promote adequate employment opportunities to such citizens. In the implementation of such program the State shall respect the rights of small property owners.

Property held by a municipal corporation in its private capacity is not subject to the unrestricted control of the legislature, and the municipality cannot be deprived of such property against its will, except by the exercise of eminent domain with payment of full compensation.” (McQuillin Municipal Corporation, 2nd Ed., Vol. I, pp. 670-681).

In its private capacity a municipal corporation is wholly different. The people of a compact community usually require certain conveniences which cannot be furnished without a franchise from the State and which are either unnecessary in the rural districts, such as a

system of sewers, or parks and open spaces, or which on account of the expenses it would be financially impossible to supply except where the population is reasonably dense, such as water or gas. But in so far as the municipality is thus authorized to exercise the functions of a private corporation, it is clothed with the capacities of a private corporation and may claim its rights and immunities, even as against the sovereign, and is subject to the liabilities of such a corporation, even as against third parties. (19 R.C.L. p. 698)

!!! Case(s)

50. City of Baguio vs. Nawasa, 106 Phil. 114 (1959) 51. Zamboanga del Norte vs. City of Zamboanga, 22 SCRA 1334 (1968)

1997 Rules of Civil Procedure, as amended, effective 1 July 1997

Rule 67, Expropriation

Section 1. The complaint. — The right of eminent domain shall be exercised by the filing of a verified complaint which shall state with certainty the right and purpose of expropriation, describe the real or personal property sought to be expropriated, and join as defendants all persons owning or claiming to own, or occupying, any part thereof or interest therein, showing, so far as practicable, the separate interest of each defendant. If the title to any property sought to be expropriated appears to be in the Republic of the Philippines, although occupied by private individuals, or if the title is otherwise obscure or doubtful so that the plaintiff cannot with accuracy or certainty specify who are the real owners, averment to that effect shall be made in the complaint. (1a)

Section 2. Entry of plaintiff upon depositing value with authorized government depositary. — Upon the filing of the complaint or at any time thereafter and after due notice to the defendant, the plaintiff shall have the right to take or enter upon the possession of the real property involved if he deposits with the authorized government depositary an amount equivalent to the assessed value of the property for purposes of taxation to be held by such bank subject to the orders of the court. Such deposit shall be in money, unless in lieu thereof the court authorizes the deposit of a certificate of deposit of a government bank of the Republic of the Philippines payable on demand to the authorized government depositary.

If personal property is involved, its value shall be provisionally ascertained and the amount to be deposited shall be promptly fixed by the court.

After such deposit is made the court shall order the sheriff or other proper officer to forthwith place the plaintiff in possession of the property involved and promptly submit a report thereof to the court with service of copies to the parties. (2a)

Section 3. Defenses and objections. — If a defendant has no objection or defense to the action or the taking of his property, he may file and serve a notice of appearance and a manifestation to that effect, specifically designating or identifying the property in which he

claims to be interested, within the time stated in the summons. Thereafter, he shall be entitled to notice of all proceedings affecting the same.

If a defendant has any objection to the filing of or the allegations in the complaint, or any objection or defense to the taking of his property, he shall serve his answer within the time stated in the summons. The answer shall specifically designate or identify the property in which he claims to have an interest, state the nature and extent of the interest claimed, and adduce all his objections and defenses to the taking of his property. No counterclaim, cross-claim or third-party complaint shall be alleged or allowed in the answer or any subsequent pleading.

A defendant waives all defenses and objections not so alleged but the court, in the interest of justice, may permit amendments to the answer to be made not later than ten (10) days from the filing thereof. However, at the trial of the issue of just compensation whether or not a defendant has previously appeared or answered, he may present evidence as to the amount of the compensation to be paid for his property, and he may share in the distribution of the award. (n)

Section 4. Order of expropriation. — If the objections to and the defenses against the right of the plaintiff to expropriate the property are overruled, or when no party appears to defend as required by this Rule, the court may issue an order of expropriation declaring that the plaintiff has a lawful right to take the property sought to be expropriated, for the public use or purpose described in the complaint, upon the payment of just compensation to be determined as of the date of the taking of the property or the filing of the complaint, whichever came first.

A final order sustaining the right to expropriate the property may be appealed by any party aggrieved thereby. Such appeal, however, shall not prevent the court from determining the just compensation to be paid.

After the rendition of such an order, the plaintiff shall not be permitted to dismiss or discontinue the proceeding except on such terms as the court deems just and equitable. (4a)

Section 5. Ascertainment of compensation. — Upon the rendition of the order of expropriation, the court shall appoint not more than three (3) competent and disinterested persons as commissioners to ascertain and report to the court the just compensation for the property sought to be taken. The order of appointment shall designate the time and place of the first session of the hearing to be held by the commissioners and specify the time within which their report shall be submitted to the court.

Copies of the order shall be served on the parties. Objections to the appointment of any of the commissioners shall be filed with the court within ten (10) days from service, and shall be resolved within thirty (30) days after all the commissioners shall have received copies of the objections. (5a)

Section 6. Proceedings by commissioners. — Before entering upon the performance of their duties, the commissioners shall take and subscribe an oath that they will faithfully perform their duties as commissioners, which oath shall be filed in court with the other proceedings in the case. Evidence may be introduced by either party before the commissioners who are authorized to administer oaths on hearings before them, and the commissioners shall, unless the parties consent to the contrary, after due notice to the parties, to attend, view and examine the property sought to be expropriated and its surroundings, and may measure the same, after which either party may, by himself or counsel, argue the case. The commissioners shall assess the consequential damages to the property not taken and deduct from such consequential damages the consequential benefits to be derived by the owner from the public use or purpose of the property taken, the operation of its franchise by the corporation or the carrying on of the business of the corporation or person taking the property. But in no case shall the consequential benefits assessed exceed the consequential damages assessed, or the owner be deprived of the actual value of his property so taken. (6a)

Section 7. Report by commissioners and judgment thereupon. — The court may order the commissioners to report when any particular portion of the real estate shall have been passed upon by them, and may render judgment upon such partial report, and direct the commissioners to proceed with their work as to subsequent portions of the property sought to be expropriated, and may from time to time so deal with such property. The commissioners shall make a full and accurate report to the court of all their proceedings, and such proceedings shall not be effectual until the court shall have accepted their report and rendered judgment in accordance with their recommendations. Except as otherwise expressly ordered by the court, such report shall be filed within sixty (60) days from the date the commissioners were notified of their appointment, which time may be extended in the discretion of the court. Upon the filing of such report, the clerk of the court shall serve copies thereof on all interested parties, with notice that they are allowed ten (10) days within which to file objections to the findings of the report, if they so desire. (7a)

Section 8. Action upon commissioners’ report. — Upon the expiration of the period of ten (10) days referred to in the preceding section, or even before the expiration of such period but after all the interested parties have filed their objections to the report or their statement of agreement therewith, the court may, after hearing, accept the report and render judgment in accordance therewith, or, for cause shown, it may recommit the same to the commissioners for further report of facts, or it may set aside the report and appoint new commissioners; or it may accept the report in part and reject it in part and it may make such order or render such judgment as shall secure to the plaintiff the property essential to the exercise of his right of expropriation, and to the defendant just compensation for the property so taken. (8a)

Section 9. Uncertain ownership; conflicting claims. — If the ownership of the property taken is uncertain, or there are conflicting claims to any part thereof, the court may order any sum or sums awarded as compensation for the property to be paid to the court for the benefit of the person adjudged in the same proceeding to be entitled thereto. But the judgment shall require the payment of the sum or sums awarded to either the defendant or the court before the plaintiff can enter upon the property, or retain it for the public use or purpose if entry has already been made. (9a)

Section 10. Rights of plaintiff after judgment and payment. — Upon payment by the plaintiff to the defendant of the compensation fixed by the judgment, with legal interest thereon from the taking of the possession of the property, or after tender to him of the amount so fixed and payment of the costs, the plaintiff shall have the right to enter upon the property expropriated and to appropriate it for the public use or purpose defined in the judgment, or to retain it should he have taken immediate possession thereof under the provisions of section 2 hereof. If the defendant and his counsel absent themselves from the court, or decline to receive the amount tendered, the same shall be ordered to be deposited in court and such deposit shall have the same effect as actual payment thereof to the defendant or the person ultimately adjudged entitled thereto. (10a)

Section 11. Entry not delayed by appeal; effect of reversal. — The right of the plaintiff to enter upon the property of the defendant and appropriate the same for public use or purpose shall not be delayed by an appeal from the judgment. But if the appellate court determines that plaintiff has no right of expropriation, judgment shall be rendered ordering the Regional Trial Court to forthwith enforce the restoration to the defendant of the possession of the property, and to determine the damages which the defendant sustained and may recover by reason of the possession taken by the plaintiff. (11a)

Section 12. Costs, by whom paid. — The fees of the commissioners shall be taxed as a part of the costs of the proceedings. All costs, except those of rival claimants litigating their claims, shall be paid by the plaintiff, unless an appeal is taken by the owner of the property and the judgment is affirmed, in which event the costs of the appeal shall be paid by the owner. (12a)

Section 13. Recording judgment, and its effect. — The judgment entered in expropriation proceedings shall state definitely, by an adequate description, the particular property or interest therein expropriated, and the nature of the public use or purpose for which it is expropriated. When real estate is expropriated, a certified copy of such judgment shall be recorded in the registry of deeds of the place in which the property is situated, and its effect shall be to vest in the plaintiff the title to the real estate so described for such public use or purpose. (13a)

Section 14. Power of guardian in such proceedings. — The guardian or guardian ad litem of a minor or of a person judicially declared to be incompetent may, with the approval of the court first had, do and perform on behalf of his ward any act, matter, or thing respecting the expropriation for public use or purpose of property belonging to such minor or person judicially declared to be incompetent, which such minor or person judicially declared to be incompetent could do in such proceedings if he were of age or competent. (14a)

Taxation

A. Definition and Nature

1. Definition

a. Taxation

the method by which enforced proportional contributions are exacted. the power by which the sovereign, through its lawmaking body, raises revenue to

defray the necessary expenses of government. a way of apportioning the costs of government among those who in some measure

are privileged to enjoy its benefits and must bear its burden. a “Symbiotic” relationship, whereby in exchange for the protection that the citizens

get from the government, taxes are paid.

b. Taxes

Taxes are enforced proportional contributions from persons and property levied by the lawmaking body of the State by virtue of its sovereignty for the support of the government and for public needs. (Cooley, Taxation, 4th edition, Section 1)

Distinction with license fees. The term “tax” applies — generally speaking — to all kinds of exactions which become public funds. The term is often loosely used to include levies for revenue as well as levies for regulatory purposes. Thus license fees are commonly called taxes. Legally speaking, however, license fee is a legal concept quite distinct from tax; the former is imposed in the exercise of police power for purposes of regulation, while the latter is imposed under the taxing power for the purpose of raising revenues (MacQuillin, Municipal Corporations, Vol. 9, 3rd Edition, p. 26).

Distinction with special assessments. While the word “tax” in its broad meaning, includes both general taxes and special assessments, and in a general sense a tax is an assessment, and an assessment is a tax, yet there is a recognized distinction between them in that assessment is confined to local impositions upon property for the payment of the cost of public improvements in its immediate vicinity and levied with reference to special benefits to the property assessed. The differences between a special assessment and a tax are that (1) a special assessment can be levied only on land; (2) a special assessment cannot (at least in most states) be made a personal liability of the person assessed; (3) a special assessment is based wholly on benefits; and (4) a special assessment is exceptional both as to time and locality. The imposition of a charge on all property, real and personal, in a prescribed area, is a tax and not an assessment, although the purpose is to make a local improvement on a street or highway. A charge imposed only on property owners benefited is a special assessment rather than a tax notwithstanding the statute calls it a tax. (Apostolic Prefect of the Mountain Province vs. the Treasurer of Baguio City [GR 47252, 18 April 1941]; citing Cooley)

2. Attributes / Characteristics of taxation

1. A forced charge, imposition or contribution and as such it operates in invitum. (Rochester vs. Bloss, 175 NY 42, 27 NE 794, 61 LRA [NS] Ann 7, Cas. 15) Taxes are not in the nature of contracts between the party and party but grow out of a duty to, and are the positive acts of the government, to the making and enforcing of which, the personal consent of individual taxpayers is not required (Republic vs. Mambulao Lumber [GR L-17725, 28 February 1962]).

2. It is a pecuniary burden payable in money, but such a tax is not necessarily confined to those payable in money (1 Cooley 3).

3. It is levied by the legislative body of the State because the taxing power is pecuniary and exclusively legislative in character. (51 Am. Jr. 71)

4. It is assessed in accordance with some reasonable rule of apportionment, conformably with the constitutional mandate on progressivity of a taxing system. (Article VI, Section 28[1], 1987 Constitution).

5. It reaches even the citizen abroad and his income earned from sources outside his State; as well as all income earned in the taxing State, whether by citizens or aliens, and all immovable and tangible personal properties found in its territory, as well as tangible personal property owned by persons domiciled therein, are subject to its taxing power (Justice Cruz, Constitutional Law, 2000 edition, 86)

6. A tax is levied for a public purpose as taxation itself involves a burden to provide revenue for public purposes of a general nature.

3. Nature of taxing power

Inherent. The power to tax, an inherent prerogative, has to be availed of to assure the performance of vital state functions. It is the source of the bulk of public funds. Taxes being the lifeblood of the government, their prompt and certain availability is of the essence. (Sison v. Ancheta [GR L-59431, 25 July 1984])

High prerogative of sovereignty. As the power of taxation is a high prerogative of sovereignty, the relinquishment is never presumed and any reduction or diminution thereof with respect to its mode or its rate, must be strictly construed, and the same must be coached in clear and unmistakable terms in order that it may be applied. (84 C.J.S. pp. 659-800)

Legislative. Taxing power is peculiarly and exclusively legislative in character and remains undiminished in the legislative in character and remains undiminished in the legislature in the absence of an express surrender thereof, clear and explicit in its terms. (51 Am. Jur. 71-73)

Constitutionally limited. The power to tax is an attribute of sovereignty. It is the strongest of all the powers of government. For all its plenitude, the power to tax has restrictions. The Constitution sets forth such limits. Adversely affecting as it does property rights, both the due process and equal protection clauses may properly be invoked to invalidate in appropriate cases a revenue measure. (Sison v. Ancheta [GR L-59431, 25 July 1984])

B. Purpose

Taxes are the lifeblood of the government and so should be collected without unnecessary hindrance. Despite the natural reluctance to surrender part of one’s hard-earned income to the taxing authorities, every person who is able to must contribute his share in the running of

the government. The government for its part, is expected to respond in the form of tangible and intangible benefits intended to improve the lives of the people and enhance their moral and material values. This symbiotic relationship is the rationale of taxation and should dispel the erroneous notion that it is an arbitrary method of exaction by those in the seat of power. (Commissioner of Internal Revenue v. Algue [GR L-28896, 17 February 1988])

1. Revenue: The purpose of taxation is to provide funds or property with which the State promotes the general welfare and protection of its citizens. (51 Am. Jur. 71-73) Raising of revenues is the principal object of taxation. (Bagatsing vs. Ramirez [GR L-41631, 17 December 1976])

2. Non-Revenue:a. Regulation: Taxes may also be imposed for a regulatory purpose as for

example, in the promotion, rehabilitation and stabilization of industry which is affected with public interest. (See Lutz vs. Araneta [GR L-7859, 22 December 1955] , and Caltex Philippines vs. Commission on Audit [GR 92585, 8 May 1992])

b. Promotion of general welfare: If objective and methods are alike constitutionally valid, no reason is seen why the state may not be levy taxes to raise funds for their prosecution and attainment. Taxation may be made to implement the state’s police power. (Lutz V. Araneta, 98 Phil. 148 [1955]; citing Great Atlantic & Pacific Tea Co. v. Grosjean, 301 U.S. 412, 81 L. Ed. 1193; U.S. v. Butler, 297 U.S. 1, 80 L. Ed. 477; M’Culloch v. Maryland, 4 Wheat, 316, 4 L. Ed. 579. )

c. Reduction of social inequality: Made possible through the progressive system of taxation where the objective is to prevent the undue concentration of wealth in the hands of a few individuals. (Aban, Benjamin. Law of Basic Taxation in the Philippines, Second Edition 1994, page 6).

d. Encourage economic growth: In the realm of tax exemptions and tax reliefs, the purpose of taxation (the power to tax being the power also not to tax. — Ed.) is to grant incentives or exemptions in order to encourage investments and thereby promote the country’s economic growth. (Ibid.)

e. Protectionism: In some important sectors of the economy, taxes sometimes provide protection to local industries like protective tariffs and customs duties. (Ibid.)

!!! Case(s)52. CIR vs. Algue, Inc., 158 SCRA 9 (1988) 53. Commissioner vs. Makasiar, 177 SCRA 27 (1989)

C. Scope (The power to tax is the power to destroy)

Philippine internal revenue laws are not political in nature and as such were continued in force during the period of enemy occupation and in effect were actually enforced by the occupation government. As a matter of fact, income tax returns were filed during that period and income tax payment were effected and considered valid and legal. Such tax laws are

deemed to be the laws of the occupied territory and not of the occupying enemy. (Hilado vs. CIR [GR. L-9408, 31 October 1956.])

So pervasive is the power of taxation that it reaches even the citizen abroad and his income earned from sources outside his State. In other cases, all income earned in the taxing State, whether by citizens or aliens, and all immovable and tangible personal properties found in its territory, as well as tangible personal property owned by persons domiciled therein, are subject to its taxing power (Justice Cruz, Constitutional Law, 2000 edition, 86) Tariff and customs duties are taxes constituting a significant portion of the public revenue which are the lifeblood that enables the government to carry out functions it has been instituted to perform. (Commissioner of Customs v. Makasiar [GR 79307, 29 August 1989])

Legislative taxing power or discretion extends to the following:

1. Subjects and objects of tax2. Amount and rate of tax3. Purpose for which taxes are to be levied4. Apportionment of the tax ( general, limited to a particular locality, or mixed)5. Situs of taxation6. Manner and mode of enforcement and collection

(Aban, Benjamin. Law of Basic Taxation in the Philippines, Second Edition 1994, page 8).

The taxing authority can select the subjects of taxation (Gomez vs. Palomar (GR L-23645, 29 October 1988). The taxing power has the authority to make reasonable and natural classifications for purposes of taxation. Where the differentiation conforms to the practical dictates of justice and equity, it is not discriminatory within the meaning of this clause and is therefore uniform. There is quite a similarity then to the standard of equal protection for all that is required is that the tax applies equally to all persons, firms and corporations placed in similar situation. Taxpayers may be classified into different categories. It is enough that the classification must rest upon substantial distinctions that make real differences. (Sison v. Ancheta [GR L-59431, 25 July 1984]) Thus, a classification is reasonable where (1) it is based on substantial distinctions which make real differences; (2) these are germane to the purpose of the law; (3) the classification applies not only to present conditions but also to future conditions which are substantially identical to those of the present; (4) the classification applies only to those who belong to the same class (Felwa v. Salas [GR L-26511, 29 Oct 1966]). Still, the classification, to be reasonable, should be in terms applicable to future conditions as well. (Ormoc Sugar Company vs. Treasurer of Ormoc City [GR L-23794, 17 February 1968])

That the power to tax involves the power to destroy; that the power to destroy may defeat and render useless the power to create; that there is a plain repugnance in conferring on one government a power to control the constitutional measures of another, which other, with respect to those very measures, is declared to be supreme over that which exerts the control, are propositions not to be denied. But all inconsistencies are to be reconciled by the magic of the word confidence. Taxation, it is said, does not necessarily and unavoidably destroy. To carry it to the excess of destruction, would be an abuse, to presume which,

would banish that confidence which is essential to all government. (Chief Justice Marshall, McCulloch vs. Maryland, 17 US 316 [1819]) In those days (the case of McCullough vs. Maryland [1819] — Ed.) it was not recognized as it is today that most of the distinctions of the law are distinctions of degree. If the States had any power it was assumed that they had all power, and that the necessary alternative was to deny it altogether. But this Court which so often has defeated the attempt to tax in certain ways can defeat an attempt to discriminate or otherwise go too far without wholly abolishing the power to tax. The power to tax is not the power to destroy while this Court sits. The power to fix rates is the power to destroy if unlimited, but this Court while it endeavors to prevent confiscation does not prevent the fixing of rates. (Dissenting opinion of Justice Holmes, Panhandle Oil Co. vs. State of Mississippi Ex Rel. Knox, 277 US 218 [1928]). Construing the “power to tax is the power to destroy,” it merely describes “not the purposes for which the tax may be used bt the degree of vigor with which the taxing power may be employed in order to raise revenue (1 Cooley 179-181).

D. Who exercises the power?

1. In general

Taxing power is peculiarly and exclusively legislative in character and remains undiminished in the legislative in character and remains undiminished in the legislature in the absence of an express surrender thereof, clear and explicit in its terms. (51 Am. Jur. 71-73) It is inherent in the power to tax that a state be free to select the subjects of taxation, and it has been repeatedly held that “inequalities which result from a singling out of one particular class for taxation, or exemption infringe no constitutional limitation” (Carmichael vs. Southern Coal & Coke Co., 301 U. S. 495, 81 L. Ed. 1245, citing numerous authorities, at p. 1251).

Still, tax collection should be made in accordance with law as any arbitrariness will negate the very reason for government itself. It is a requirement in all democratic regimes that it be exercised reasonably and in accordance with the prescribed procedure. It is therefore necessary to reconcile the apparently conflicting interests of the authorities and the taxpayers so that the real purpose of taxation, which is the promotion of the common good, may be achieved. If it is not, then the taxpayer has a right to complain and the courts will then come to his succor. For all the awesome power of the tax collector, he may still be stopped in his tracks if the taxpayer can demonstrate that the law has not been observed. (Commissioner of Internal Revenue v. Algue [GR L-28896, 17 February 1988])

2. Local Government Units

Previously, a municipal corporation has no inherent power of taxation. To enact a valid ordinance, the City must find in its charter the power to do so, for said power cannot be assumed. A municipal corporation, unlike a sovereign state, is clothed with no inherent power of taxation. Its charter must plainly show an intent to confer that power or the corporation cannot assume it. And the power when granted is to be construed strictissimi juris. Any doubt or ambiguity arising out of the term used must be resolved against the municipal corporation. (Santos Lumber Co. vs. City of Cebu, et al., 102 Phil., 870; See also Arong vs. Raffiñan, 98 Phil., 422). Now, direct authority has been conferred to local

government units by the 1987 Constitution, specifically Section 5, Article X thereof, which provides that “Each local government unit shall have the power to create its own sources of revenues and to levy taxes, fees and charges subject to such guidelines and limitations as the Congress may provide, consistent with the basic policy of local autonomy. Such taxes, fees, and charges shall accrue exclusively to the local governments.”

Except as otherwise provided in the Local Government Code (RA 7160), the province may levy only the taxes, fees, and charges as provided in Article I, Chapter II, Title I, Book II; such the Tax on Transfer of Real Property Ownership; Tax on Business of Printing and Publication; Franchise Tax; Tax on Sand, Gravel and Other Quarry Resources; Professional Tax; Amusement Tax; Annual Fixed Tax For Every Delivery Truck or Van of Manufacturers or Producers, Wholesalers of, Dealers, or Retailers in, Certain Products (Section 134). Further, municipalities may levy taxes, fees, and charges not otherwise levied by provinces (Section 142). Furthermore, the city, may levy the taxes, fees, and charges which the province or municipality may impose: Provided, however, That the taxes, fees and charges levied and collected by highly urbanized and independent component cities shall accrue to them and distributed in accordance with the provisions of the Local Government Code, and Provided further that the rates of taxes that the city may levy may exceed the maximum rates allowed for the province or municipality by not more than 50% except the rates of professional and amusement taxes (Section 151).

Section 130 of the Local Government Code provides for fundamental principles that shall govern the exercise of the taxing and other revenue-raising powers of local government units, that is, (a) Taxation shall be uniform in each local government unit; (b) Taxes, fees, charges and other impositions shall: (1) be equitable and based as far as practicable on the taxpayer’s ability to pay; (2) be levied and collected only for public purposes; (3) not be unjust, excessive, oppressive, or confiscatory; (4) not be contrary to law, public policy, national economic policy, or in the restraint of trade; (c) The collection of local taxes, fees, charges and other impositions shall in no case be let to any private person; (d) The revenue collected pursuant to the provisions of the Local Government Code shall inure solely to the benefit of, and be subject to the disposition by, the local government unit levying the tax, fee, charge or other imposition unless otherwise specifically provided herein; and, (e) Each local government unit shall, as far as practicable, evolve a progressive system of taxation.

Art. VI Sec. 28Section 28.

1. The rule of taxation shall be uniform and equitable. The Congress shall evolve a progressive system of taxation.

2. The Congress may, by law, authorize the President to fix within specified limits, and subject to such limitations and restrictions as it may impose, tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts within the framework of the national development program of the Government.

3. Charitable institutions, churches and personages or convents appurtenant thereto, mosques, non-profit cemeteries, and all lands, buildings, and improvements, actually, directly, and exclusively used for

religious, charitable, or educational purposes shall be exempt from taxation.

4. No law granting any tax exemption shall be passed without the concurrence of a majority of all the Members of the Congress.

Art. XIV, Sec. 4 (3)Section 4. xxx

3. All revenues and assets of non-stock, non-profit educational institutions used actually, directly, and exclusively for educational purposes shall be exempt from taxes and duties. Upon the dissolution or cessation of the corporate existence of such institutions, their assets shall be disposed of in the manner provided by law.

Art. X, Sec. 5

Section 5. Each local government unit shall have the power to create its own sources of revenues and to levy taxes, fees and charges subject to such guidelines and limitations as the Congress may provide, consistent with the basic policy of local autonomy. Such taxes, fees, and charges shall accrue exclusively to the local governments.

Tax Exemptions

1. Nature

Tax exemptions are either constitutional or statutory. Exemption is granted religious and charitable institutions because they give considerable assistance to the State in the improvement of the morality of the people and the care of the indigent and the handicapped. (Justice Cruz, Constitutional Law, 2000 Edition, 92-93) Statutory exceptions are granted in the discretion of the legislature, but such law should be passed with the concurrence of a majority of all the Members of Congress. Where the taxation is granted gratuitously, it may be validly revoked at will, with or without cause. However, if the exemption is granted for valuable consideration it is deemed to partake of the nature of a contract and the obligation thereof is protected against impairment (Ibid., 94-95)

By its very nature, the law that exempts one from tax must be clearly expressed because the exemption cannot be created by implication. Exemption from taxation are highly disfavored in law; and he who claims an exemption must be able to justify his claim by the clearest grant of organic or statute law. An exemption from the common burden cannot be permitted to exist upon vague implication. (Asiatic Petroleum Co. vs. Llanes, 49 Phil., 466; See also House vs. Posadas, 53 Phil., 338.)

The test of exemption from taxation is the use of the property for purposes mentioned in the Constitution (Apostolic Prefect of the Mountain Province vs. the Treasurer of Baguio City [GR 47252, 18 April 1941]). The phrase “exempt from taxation,” as employed in the Constitution should not be interpreted to mean exemption from all kinds of taxes. The exemption from the payment of taxes assessed on such properties enumerated in the Constitution are property taxes, as contra-distinguished from excise taxes. A donee’s gift tax is not a property

tax but an excise tax imposed on the transfer of property by way of gift inter vivos. Its assessment was not on the property themselves. It does not rest upon general ownership, but an excise upon the use made of the properties, upon the exercise of the privilege of receiving the properties. The imposition of such excise tax on property used for religious purposes do not constitute an impairment of the Constitution. (Lladoc v. Commissioner of Internal Revenue [GR L-19201, 16 June 1965])

As to franchise grantees and other entities specifically granted exemption by the legislature, “tax exemption must be strictly construed and that the exemption will not be held to be conferred unless the terms under which it is granted clearly and distinctly show that such was the intention of the parties.” (Philippine Acetylene vs. CIR [GR L-19707, 17 August 1967]

2. Burden of Proof

The cardinal rule in taxation is that exemptions therefrom are highly disfavored in law and he who claims tax exemption must be able to justify his claim or right thereto by the clearest grant of organic or statute law. (Wonder Mechanical Engineering vs. CTA [GR L-22805 & L-27858, 30 June 1975]) The burden is on the taxpayer to prove the validity of the claimed deduction. It is the universal rule that he who claims an exemption from his share of the common burden of taxation must justify his claim by showing that the Legislature intended to exempt him by words too plain to be mistaken. (Statutory Construction by Francisco, citing Government of Philippine Islands vs. Monte de Piedad, 25 Phil. 42.)

It is axiomatic that when public property is involved, exemption is the rule and taxation, the exception. (SSS vs. Bacolod City [GR L-35726, 21 July 1982])!!! Case(s)

54. YMCA vs. CIR, 33 Phil. 217 (1916) 55. Bishop of Nueva Segovia vs. Provincial Board, 51 Phil. 352 (1927) 56. Lladoc vs. CIR, 14 SCRA 292 (1965) 57. Province of Abra vs. Hernando, 107 SCRA 104 (1981) 58. Abra Valley College vs. Aquino , 162 SCRA 106 (1988) 59. American Bible Society vs. City of Manila, 101 Phil. 386 (1957)

Double Taxation

There is double taxation when additional taxes are laid on the same subject by the same taxing jurisdiction during the same taxing period and for the same purpose. (Cooley on Taxation, Vol. I, 4th ed., p. 48) Double taxation becomes obnoxious only where the taxpayer is taxed twice for the benefit of the same governmental entity (cf. Manila vs. Interisland Gas Service, 52 Off. Gaz. 6579, Manuf. Life Ins. Co. vs. Meer, 89 Phil. 357).

National vis-a-vis local. Where one tax is imposed by the state and the other is imposed by the city, the argument against double taxation may not be invoked, as there is nothing inherently obnoxious in the requirement that license fees or taxes be exacted with respect to the same occupation, calling or activity by both the state and the political subdivisions thereof. (Punsalan v. Municipal Board of Manila [GR L-4817, 26 May 1954])

Possibly both local, Tax and license fee. Both a license fee and a tax may be imposed on the same business or occupation, or for selling the same article, this not being in violation of the rule against double taxation (Compania General de Tabacos de Filipinas vs. Manila [GR L-16619, 29 June 1963]; citing Bentley Gray Dry Goods Co., vs. City of Tampa 137 Fla. 641, 188 SO. 758; MacQuillin, Municipal Corporations, Vol. 9, 3rd Edition, p. 83).

National vis-a-vis another country. Double taxation becomes obnoxious only where the taxpayer is taxed twice for the benefit of the same governmental entity (cf. Manila vs. Interisland Gas Service, 52 Off. Gaz. 6579, Manuf. Life Ins. Co. vs. Meer, 89 Phil. 357). Where the taxpayers would have to pay two taxes on the same income (one in the Philippines and one in the United States, for example), the Philippine government only receives the proceeds of one tax. As between the Philippines, where the income was earned and where the taxpayer is domiciled, and the United States, where that income was not earned and where the taxpayer did not reside, it is indisputable that justice and equity demand that the tax on the income should accrue to the benefit of the Philippines. Any relief from the alleged double taxation should come from the United States, and not from the Philippines, since the former’s right to burden the taxpayer is solely predicated on his citizenship, without contributing to the production of the wealth that is being taxed. (CIR vs. Lednicky [GR L-18169, L-18286, & L-21434; 31 July 1964.])!!! Case(s)

60. Punzalan vs. Municipal Board of Manila, 95 Phil.46 (1954)

License Fees

There are three kinds of licenses recognized by law: (1) licenses for the regulation of useful occupations; (2) licenses for the regulation or restriction of non-useful occupations or enterprises; and (3) licenses for revenue only. Non-payment of a license fee for a business makes the business illegal unlike tax.

The amount of the fee or charge is properly considered in determining whether it is a tax or an exercise of the police power. The amount may be so large as to itself show that the purpose was to raise revenue and not to regulate, but in regard to this matter there is a marked distinction between license fees imposed upon useful and beneficial occupations which the sovereign wishes to regulate but not restrict, and those which are inimical and dangerous to public health, morals or safety. In the latter case the fee may be very large without necessarily being a tax. (Cooley on Taxation, Vol. IV, pp. 3516-17)

The power to regulate as an exercise of police power does not include the power to impose fees for revenue purposes. Fees for purely regulatory purposes “may only be of sufficient amount to include the expenses of issuing the license and the cost of the necessary inspection or police surveillance, taking into account not only the expense of direct regulation but also incidental expenses. (Cu Unjieng vs. Patstone, 42 Phil. 818) The regulatory fee “must be no more than sufficient to cover the actual cost of inspection or examination as nearly as the same can be estimated. If it were possible to prove in advance the exact cost, that would be the limit of the fee (Manila Electric Co. vs. Auditor General, 73 Phil. 129-135).!!! Case(s)

61. Physical Therapy Org. vs. Mun. Board of Manila, G.R. 10448, August 30, 1957

V-A. Individual Rights: Due Process

Art. III, Sec. I

No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.

Art. III. Sec. 14 (1)

No person shall be held to answer for a criminal offense without due process of law.

1. Definition, Nature and Scope

a. Definition / Concept

The concept of due process is that it is a law which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial, so that every citizen shall hold his life, liberty, property, and immunities under the protection of the general rules which govern society. (Hurtado vs. People of State of California [110 U.S. 516, 3 March 1884]) It is responsiveness to the supremacy of reason, obedience to the dictates of justice. (Ermita Malate Hotel & Motel Operators Association v. City of Manila [GR L-24693, 31 July 1967])

No attempt was made to spell out the meaning of due process or to define the concept with some degree of exactitude. Due process continues to be dynamic and resilient, adaptable to every situation calling for its application. The very elasticity of the provision makes this possible and thus enlarges the rights of the individual to his life, liberty or property. (Justice Cruz, Constitutional Law, 200 Edition, 98-99)

“Due process of law” mean law in its regular course of administration, according to prescribed forms, and in accordance with the general rules for the protection of individual rights. (Hurtado vs. California, citing Rowan v. State, 30 Wis. 129) Due process, in any particular case, means such an exercise of the powers of the government as the settled maxims of law permit and sanction under such safeguards for the protection of individual rights as those maxims prescribe. (Forbes vs. Chuoco Tiaco, 16 Phil. 534, 572 [1918])

Due process is described as “responsiveness to the supremacy of reason, obedience to the dictates of justice .”(Ermita Malate Hotel & Motel Operators Association v. City of Manila [GR L-24693, 31 July 1967]) It has been identified as freedom from arbitrariness. It is the embodiment of the sporting idea of fair play. (Frankfurter, Mr. Justice Holmes and the Supreme Court (1938) pp. 32-33.)

b. Nature

Dynamic. Due process continues to be dynamic and resilient, adaptable to every situation calling for its application. The very elasticity of the provision makes this possible and thus enlarges the rights of the individual to his life, liberty or property. (Justice Cruz, Constitutional Law, 200 Edition, 98-99)

Waivable. The right to be heard is as often waived as it is invoked, and validly so, as long as the party is given an opportunity to be heard on his behalf. If he opts to be silent where he has a right to speak, he cannot later be heard to complain that he was unduly silenced (Stronghold Insurance Co. Inc. vs. Court of Appeals [GR 88050,30 January 1990]).

c. Scope

Due process applies and protects all persons, without regard to any difference of race, color or nationality. Artificial persons are covered by the protection but only insofar as their property is concerned (Smith Bell & Co. vs. Natividad, 40 Phil. 163). It includes aliens and their means of livelihood (Villegas v. Hiu Chiong Tsai Pao Ho [GR L-29646, 10 Nov 1978]). Even the State is entitled to due process (Uy vs. Genato, 57 SCRA 123, People vs. Bocar, 138 SCRA 166).

2. Purpose of the guaranty!!! Case(s)

62. Hurtado v. California, 110 U.S. 516 (1884)

3. Meaning of Life, Liberty, and Property

a. Life

Life includes the right of an individual to his body in its completeness, and extends to the use of God-given faculties which make life enjoyable (Justice Malcolm, Philippine Constitutional Law, 380; Buck vs. Bell, 274 US 200).

The constitutional protection of the right to life is not just the protection of the right to be alive or to the security of one’s limb against physical harm. The right to life is also the right to a good life. (Fr. Bernas, The 1987 Constitution of the Republic of the Philippines: A commentary, 1996 Edition, 102).

b. Liberty

Liberty means the right to exist and the right to be free from arbitrary personal restraint or servitude. It includes the right of the citizen to be free to use facilities in all lawful ways (Rubi, et. al. vs. Provincial Board of Mindoro [GR 14078, 7 March 1919])

c. Property

Property means anything that can come under the right of ownership and be the subject of contract. It represents more than the things that a person owns; it includes the right to secure and dispose of them (Tonaco vs. Thompson, 263 U.S. 197).

Protected property has been deemed to include vested rights as a perfect mining claim, or a perfected homestead, or a final judgment. It also includes the right to work and the right to earn a living (Fr. Bernas, The 1987 Constitution of the Republic of the Philippines: A commentary, 1996 Edition, 101). One’s employment, profession, trade, or calling is protected property (Callanta vs. Carnation Philippines Inc., 145 SCRA 268, 279 [28 October 1986]).

A license is not considered protected property, but is deemed a privilege withdrawn when public interest required its withdrawal. Still, a privilege may evolve into some form of property protected by the Constitution when a holder of such privilege has been enjoying it for so long and has put in substantial investment making the business the source of employment for thousands. Once licenses are issued, continued possession may become essential in the pursuit f a livelihood. Suspension of issued licenses involve state action that adjudicated important interests of the licensees. (Bell vs. Burson, 402 US 535, 539 [1971])

Public office is not property but a public trust or agency. The right to office, however, is protected right. Due process may be relied upon by public officials to protect the security of tenure which in the limited sense is analogous to property (Morfe vs. Mutuc, [GR L-20387, 31 January 1968]).

4. Substantive Due Process

Substantive due process requires the intrinsic validity of the law in interfering with the rights of the person to his life, liberty or property. The inquiry is whether the law is a proper exercise of legislative power.

Requisites:

1. The means are reasonable for the accomplishment of the purpose of the law; and2. The law must be intended for the interest of the public rather than for private

interest.!!! Case(s)

63. Villegas vs. Hu Chong Tsai Pao Ho, 86 SCRA 275 (1978) 64. Rubi vs. Prov. Board of Mindoro, 39 Phil. 660 (1919) 65. Ople v. Torres, 292 SCRA 141. (1998) 66. Lawrence and Garner v. Texas, 539 U.S. 558 (2003) 67. Estrada v. Sandiganbayan, G.R. No. 148560, November 19, 2001

5. Procedural Due Process

The justice that procedural due process guarantees is the one “which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial.” (Daniel Webster, Dartmouth College vs. Woodward, 4 Wheaton 518) The twin requirements of notice and hearing constitutes the essential elements of due process and neither of these

elements can be eliminated without running afoul of the constitutional guaranty. (Vinta Maritime Co. Inc. vs. NLRC, 286 SCRA 656)

Requisites:

1. There must be an impartial tribunal clothes with judicial power to hear and determine the matter before it.

2. The court must have jurisdiction over the person of the defendant and over the property which is the subject matter of the proceeding, if any.

3. There must be opportunity to be heard.4. The judgment must be rendered after trial and in accordance with law.

Publication Requirement

The phrase “unless it is otherwise provided” refers not to the need of publication but to the requirement of 15 days. The 15 days can be lengthened or shortened but not to the point of allowing no publication at all. There can be no such thing as a law that is effective immediately, even if the law is not penal in nature. The underlying reason for this rule is that due process, which is a rule of fairness, requires that those who must obey a command must first know the command. Related to the rule on publication is the rule on vagueness. A law that is utterly vague is defective because it fails to give notice of what it commands. (Fr. Bernas, The 1987 Constitution of the Republic of the Philippines: A commentary, 1996 Edition, 122). As a rule, 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 as to its application (Tribe, American Constitutional Law 718 (1987), citing Connally vs. General Construction Co., 269 US 385 [1926]). It is repugnant to the Constitution in two respects: (1) it violates due process for failure to accord persons, especially the parties targeted by it, fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle. (People vs. Nazario, 165 SCRA 186, 195-196)

!!! Case(s)68. Tanada v. Tuvera, 146 SCRA 446 (1986) 69. PITC v. Angeles, 263 SCRA 421 (1996) 70. Pilipinas Kao v. Court of Appeals, G.R. No. 105014, December 18, 2001 71. Republic v. Extelcom, G.R. 147096, January 15, 2002

Impartial Court or Tribunal

A court affected by bias or prejudice cannot be expected to render a fair and impartial decision. Every litigant is entitled to the cold neutrality of an impartial judge (Gutierrez vs. Santos [GR L-15624, 30 May 1961]). There cannot be equal justice where a suitor approaches a court already committed to the other party and with a judgment already waiting only to be formalized after the litigants shall have undergone the charade of a formal hearing. The judge will reach his conclusions only after all the evidence is in and all the arguments are filed, on the basis of the established facts and the pertinent law (Javier vs. Commission on Elections, 144 SCRA 194).

Section 1, Rule 137 of the Revised Rules of Court. Disqualification of judges. — No judge or judicial officer shall sit in any case in which he, or his wife or child, is pecuniarily interested as heir, legatee, creditor or otherwise, or in which he is related to either party within the sixth degree of consanguinity or affinity, or to counsel within the fourth degree, computed according to the rules of the civil law, or in which he has been executor, administrator, guardian, trustee or counsel, or in which he has been presided in any inferior court when his ruling or decision is the subject of review, without the written consent of all parties in interest, signed by them and entered upon the record.

A judge may, in the exercise of his sound discretion, disqualify himself from sitting in a case, for just or valid reasons other than those mentioned above.!!!Case(s)

72. Tanada vs. PAEC, 141 SCRA 307 (1986) 73. Anzaldo vs. Clave , 119 SCRA 353 (1982) 74. Tumey vs. Ohio, 273 U.S. 510 (1997) 75. People v. Court of Appeals, 262 SCRA 452 (1996) 76. Tabuena v. Sandiganbayan, 268 SCRA 332 (1997) 77. People v. Medenilla, G.R. No. 131636-39. March 25, 2001

Prejudicial Publicity

Pervasive and prejudicial publicity under certain circumstances can deprive an accused of his due process right to fair trial. However, pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The mere exposure of judges to publications and publicity stunts does not per se fatally infect their impartiality. To warrant a finding of prejudicial publicity, there must be allegation and proof that the judges have been unduly influenced by the barrage of publicity. (People v. Sanchez [GR 121039-45, 18 October 2001]) Still, the Supreme Court reminds a trial judge in high profile criminal cases of his/her duty to control publicity prejudicial to the fair administration of justice. The ability to dispense impartial justice is an issue in every trial and in every criminal prosecution, the judiciary always stands as a silent accused. More than convicting the guilty and acquitting the innocent, the business of the judiciary is to assure fulfillment of the promise that justice shall be done and is done, and that is the only way for the judiciary to get an acquittal from the bar of public opinion. (Webb v. de Leon [GR 121234, 23 August 1995])

!!! Case(s)78. Webb v. De Leon, 247 SCRA 652 (1995) 79. People v. Sanchez, G.R. No. 121039, October 18, 2001

Notice and Hearing:

Notice to a party is essential to enable it to adduce its own evidence and to meet and refute the evidence submitted by the other party. A decision rendered without a hearing is null and void ab initio and may be attacked directly or collaterally (David vs. Aquilizan, 94 SCRA 707). Due process is not violated where a person is not heard because he has chosen, for whatever reason, not to be heard. If he opts to be silent where he has a right to speak, he cannot later be heard to complain that he was unduly silenced (Stronghold Insurance Co. Inc. vs. Court of Appeals [GR 88050,30 January 1990]).

!!! Case(s)80. Summary Dismissal Board v. Torcita, 330 SCRA 153 (2000) 81. Secretary of Justice v. Lantion, G.R. No. 139466, October 17, 2000 82. People vs. Estrada G.R. No. 130487 June 19, 2000 83. Lim v. Court of Appeals, G.R. 111397, August 12, 2002 84. Rodriguez v. Court of Appeals, G.R. 134278, August 7, 2002 85. Roxas v. Vasquez, G.R. 114944, June 21, 2001

Exceptions to notice and hearing requirements

Due process as a constitutional precept does not, always and in all situations, require trial-type proceedings. The essence of due process is to be found in the reasonable opportunity to be heard and to submit any evidence one may have in support of one’s defense. “’To be heard’ does not only mean verbal arguments in court. One may be heard also through pleadings. Where opportunity to be head, either through oral arguments or pleadings, is accorded , there is no denial of procedural due process. (Zaldivar vs. Sandiganbayan, 166 SCRA 316)

Aside from statute, the necessity of notice and hearing in an administrative proceeding depends on the character of the proceeding and the circumstances involved. In so far as generalization is possible in view of the great variety of administrative proceedings, it may be stated as a general rule that notice and hearing are not essential to the validity of administrative action where the administrative body acts in the exercise of executive, administrative, or legislative functions; but where a public administrative body acts in a judicial or quasi-judicial matter, and its acts are particular and immediate rather than general and prospective, the person whose rights or property may be affected by the action is entitled to notice and hearing (73 C.J.S. Public Administrative Bodies and Procedure, sec. 130, pages 452 and 453; cited in Philcomsat v. Alcuaz [GR 84818, 18 December 1989]).

The right to appeal is not essential to the right to a hearing. Except when guaranteed by the constitution, appeal may be allowed or denied by the legislature in its discretions. But as long as the law allows him to appeal, denial of that remedy is a denial of due process. The legislature cannot deprive anyone of the right to appeals in (1) all cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question; (2) all cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto; (3) all cases in which the jurisdiction of any lower court is in issue; (4) all criminal cases in which the penalty imposed is reclusion perpetua or higher; and (5) all cases in which only an error or question of law is involved; as specified in Article VIII, Section 5 (2) of the 1987 Constitution.

!!! Case(s)86. Philcomsat vs. Alcuaz, 180 SCRA 218 (1989) 87. Suntay vs. People, 101 Phil. 833 (1957) 88. De Bisshop vs. Galang, 8 SCRA 244 (1963) 89. Var Orient Shipping Co., Inc. vs. Achacoso, 161 SCRA 232 (1988)

6. Administrative Due Process

Requisites:

1. There must be a hearing, which includes the right to present one’s case and submit evidence in support thereof;

2. The tribunal must consider the evidence presented;3. The decision must have something to support itself;4. The evidence must be substantial;5. The decision must be rendered on the evidence presented at the hearing or at least

contained in the record and disclosed to the parties;6. The tribunal or any of its judges must act on its or his own independent

consideration of the facts and the law of the controversy, and not simply accept the views of a subordinate in arriving at a decision; and

7. The board or body should, in all controversial questions, render its decision in such a manner that the parties to the proceeding can know the various issues involved, and the reasons for the decision.

!!! Case(s)90. Ang Tibay vs. CIR, 69 Phil. 635 (1940) 91. Montemayor vs. Araneta University Foundation, 77 SCRA 321 (1977) 92. Meralco vs. PSC, 11 SCRA 317 (1964) 93. Ateneo vs. CA, 145 SCRA 100 (1986) 94. Alcuaz vs. PSBA, 161 SCRA 7 (1988) 95. Non vs. Hon. Dames, G.R. No. 89317, May 30, 1990

Equal Protection

Definition

Equal protection simply means that all persons or things similarly situated must be treated alike both as to the rights conferred and the liabilities imposed. (Association of Small Landowners in the Philippines Inc. vs. Secretary of Agrarian Reform [GR 78741, 14 July 1989]; Ichong vs. Hernandez, 11 Phil. 1155)

Application

1. Equal Application

Substantive equality is not enough. It is also required that the law be applied equally. Even if the law is fair and impartial on its face, it will still violate equal protection if it is administered “with an evil eye and an uneven hand,” so as to unjustly benefit some and prejudice others.

2. Valid Classification

The clause “equal protection of the laws” does not preclude classification of individuals, who may be accorded different treatment under the law as long as the classification is not unreasonable or arbitrary. (Lozano vs. Martinez, 146 SCRA 323)

Classification has been defined as the grouping of persons or things similar to each other in certain particulars and different from each other in these same particulars. (International Harvester Co. vs. Missouri, 234 US 199) To be valid, it must conform to the following requirements: (1) it must be based on substantial distinctions; (2) it must be germane to the purposes of the law; (3) it must not be limited to existing conditions only; and (4) it must apply equally to all the members of the class. (People v. Cayat, 68 Phil. 12)

Political, Economic and Social Equality

Art. XIII, Sec. 1 and 2 (social justice)

Section 1. The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, and political inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the common good.

To this end, the State shall regulate the acquisition, ownership, use, and disposition of property and its increments.

Section 2. The promotion of social justice shall include the commitment to create economic opportunities based on freedom of initiative and self-reliance.

Id., Sec. 3 (protection to labor)

Section 3. The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all.

It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law.

The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace.

The State shall regulate the relations between workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns to investments, and to expansion and growth.

Art. XII, Sec. 10 (nationalization of business)

Section 10. The Congress shall, upon recommendation of the economic and planning agency, when the national interest dictates, reserve to citizens of the Philippines or to corporations or associations at least sixty per centum of whose capital is owned by such citizens, or such higher percentage as Congress may prescribe, certain areas of investments. The Congress shall enact measures that will encourage the formation and operation of enterprises whose capital is wholly owned by Filipinos.

In the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos.

The State shall regulate and exercise authority over foreign investments within its national jurisdiction and in accordance with its national goals and priorities.

Id., Sec. 2, par. 2 (reservation of marine resources)

Section 2. xxx

The State shall protect the nation’s marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.

Art. III, Sec. 11 (free access to the courts)

Section 11. Free access to the courts and quasi-judicial bodies and adequate legal assistance shall not be denied to any person by reason of poverty.

Art. VIII, Sec. 5(5) (legal aid to poor)Section 5. The Supreme Court shall have the following powers:xxx

5. Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the integrated bar, and legal assistance to the under-privileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be

uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.

Art. IX-C, Sec. 10 (protection of candidates)

Section 10. Bona fide candidates for any public office shall be free from any form of harassment and discrimination.

Art. II, Sec. 26 (public service)

Section 26. The State shall guarantee equal access to opportunities for public service and prohibit political dynasties as may be defined by law.

Art. II, Sec. 14 (equality of women and men)

Section 14. The State recognizes the role of women in nation-building, and shall ensure the fundamental equality before the law of women and men.

Sexual Discrimination

Where the classification is based on such distinctions that make a real difference as infancy, sex, and stage of civilization of minority groups, the better rule is to recognize its validity only if the young, the women, and the cultural minorities are singled out for favorable treatment. (PASEI [Philippine Association of Service Exporters Inc] v. Drilon [GR L-81958, 30 June 1988])

!!! Case(s)96. Phil. Association of Service Exporters vs. Drilon, 163 SCRA 386 (1988)

Taxation

The rule of taxation shall be uniform and equitable. This requirement is met when the tax operates with the same force and effect in every place where the subject may be found. The rule of uniformity does not call for perfect uniformity or perfect equality, because this is hardly attainable. Taxpayers may be classified into different categories. It is enough that the classification must rest upon substantial distinctions that make real differences. (Sison v. Ancheta [GR L-59431, 25 July 1984])

!!! Case(s)97. Sison vs. Ancheta, 130 SCRA 654 (1984)

Administration of Justice

Although the constitutional guaranty requires the treatment alike, in the same place and under like circumstances and conditions, of all persons subjected to state legislation; a state, as a part of its police power, may exercise a large measure of discretion, without violating the equal protection guaranty, in creating and defining criminal offenses, and may make classifications as to persons amenable to punishment, so long as the classifications are reasonable and the legislation bears equally on all in the same class, and, where a reasonable classification is made as between persons or corporations, the persons or corporations in each class may be dealt with in a manner different from that employed with regard to the persons or corporations in other classes. (People v. Isinain [GR L-2857, 28 February 1950])

Once a case has been filed before a court of competent jurisdiction, the matter of its dismissal or pursuance lies within the full discretion and control of the judge, once jurisdiction is acquired by the trial court. The government prosecutor of ill-gotten wealth cases, cannot guarantee the dismissal of all such criminal cases pending in the courts, for said dismissal is not within its sole power and discretion. This is a direct encroachment on judicial powers, particularly in regard to criminal jurisdiction. (Chavez v. PCGG [GR 130716, 9 December 1998])

The classification between those pending cases involving those whose trial has not yet commenced and whose cases could have been affected by the amendments, as against those cases where trial had already started as of the approval of the law, rests on substantial distinction that makes real differences. In the first instance, evidence against them were not yet presented, whereas in the latter the parties had already submitted their respective proofs, examined witnesses and presented documents. Since it is within the power of Congress to define the jurisdiction of courts subject to the constitutional limitations, it can be reasonably anticipated that an alteration of that jurisdiction would necessarily affect pending cases, which is why it has to provide for a remedy in the form of a transitory provision. (Lacson v. Executive Secretary [GR 128096, 20 January 1999])

!!! Case(s)98. People vs. Hernandez, 99 Phil. 515 (1956) 99. People vs. Isinain, 85 Phil. 648 (1950) 100. Chavez v. PCGG, G.R. 130716, December 9, 1998 101. Nunez vs. Sandiganbayan, 111 SCRA 433 (1982) 102. Lacson v. Executive Secretary, G.R. No. 128096, January 20, 1999 103. Soriano v. C.A., 304 SCRA 231 (1999)

Public Policy

!!! Case(s)104. Unido vs. COMELEC, 104 SCRA 17 (1981) 105. PJA vs. Prado, 227 SCRA 703 (1993) 106. Olivarez v. Sandiganbayan, 248 SCRA 700 (1995) 107. Tiu v. Court of Appeals, G.R. No. 127410, January 20, 1999 108. ISAE v. Quisumbing, G.R. No. 128845, June 1, 2000 109. PHILRECA vs. DILG, G.R. No. 143076. June 10, 2003

Non-Impairment Clause

Art. III, Sec. 10

Section 10. No law impairing the obligation of contracts shall be passed.

Section 10 dissected

a. Law. It includes statutes enacted by the national legislature, executive orders and administrative regulations promulgated under a valid delegation of power, and municipal ordinances passed by the local legislative bodies (Lim vs. Register of Deeds, 46 OG 3665). It does not include judicial decisions or adjudications made by administrative bodies in the exercise of their quasi-judicial powers. (Justice Cruz, Constitutional Law, 2000 Edition, 253)

b. Impairment. It is anything that diminishes the efficacy of the contract (Clements vs. Nolting, 42 Phil. 702)

c. Obligation. The obligation of a contract is the law or duty which binds the parties to perform their undertaking or agreement according to its terms and intent. (Sturgees vs. Crownshields, 4 Wheat. 122)

d. Contracts. It refers to any lawful agreement on property or property rights, whether real or personal, tangible or intangible. The agreement may be executed or executory. (Justice Cruz, Constitutional Law, 2000 Edition, 252) it does not include licenses and public office.

1. Purpose

The purpose of the non-impairment clause is to safeguard the integrity of valid contractual agreements against unwarranted interference by the State. As a rule, the will of the obligor and the obligee must be observed and the obligation of their contract must not be impaired. (Justice Cruz, Constitutional Law, 2000 Edition, 252)

2. When impairment occurs

To impair, the law must retroact so as to affect existing contracts concluded before its enactment. A later law (except if it involves police power) which enlarges, abridges, or in any manner changes the intent of the parties to the contract necessarily impairs the contract itself and cannot be given retroactive effect without violating the constitutional prohibition against impairment of contracts. (Sangalang v. Intermediate Appellate Court (IAC) [GR 71169, 22 December 1988])

Impairment is anything that diminishes the efficacy of the contract. The degree of diminution is immaterial. As long as the original rights of either of the parties are changed to its prejudice, there is an impairment of the obligation of the contract. (Justice Cruz, Constitutional Law, 2000 Edition, 254-255)

In case of remedies, there will be impairment only if all of them are withdrawn, with the result that either of the parties will be unable to enforce his rights under the original agreement. There will be no impairment as long as a substantial and efficacious remedy remains. This rule holds true even if the remedy retained is the most difficult to employ and it is the easier ones that are withdrawn. (Manila Trading Co. vs. Reyes, 62 Phil. 461)

3. When allowed

While non-impairment of contracts is constitutionally guaranteed, the rule is not absolute, since it has to be reconciled with the legitimate exercise of police power. (Ortigas v. Feati [GR L-24670, 14 December 1979]) The prohibition is general, affording a broad outline and requiring construction to fill in the details. The prohibition is not to read with literal exactness like a mathematical formula for it prohibits unreasonable impairment only. In spite of the constitutional prohibition the State continues to possess authority to safeguard the vital interests of its people. (Abella v. NLRC [GR 71813, 20 July 1987])

A contract cannot be raised as a deterrent to police power, designed precisely to promote health, safety, peace, and enhance the common good, at the expense of contractual rights, whenever necessary. (Sangalang v. Intermediate Appellate Court (IAC) [GR 71169, 22 December 1988]) Legislation appropriate to safeguard said interest may modify or abrogate contracts already in effect. For not only are existing laws read into contracts in order to fix the obligations as between the parties but the reservation of essential attributes of sovereign power is also read into contracts as a postulate of the legal order. All contracts made with reference to any matter that is subject to regulation under the police power must be understood as made in reference to the possible exercise of that power. (Abella v. NLRC [GR 71813, 20 July 1987])

Police power cannot be surrendered or bargained away through the medium of a contract. Every contract affecting the public interest suffers a congenital infirmity in that it contains an implied reservation of the police power as a postulate of the existing legal order. This power can be activated at any time to change the provisions of the contract, or even abrogate it entirely, for the promotion or protection of the general welfare. (Villanueva v. Castaneda [GR L-61311, 21 September 1987])

Emergency Powers!!! Case(s)

112. Rutter vs. Esteban, 93 Phil. 68 (1953) Zoning and Regulatory Ordinances!!! Case(s)

113. Ortigas vs. Feati Bank, 94 SCRA 533 (1980) 114. Villanueva vs. Castaneda, 154 SCRA 142 (1987) 115. Sangalang vs. IAC, 168 SCRA 634 (1988) 116. Ortigas & Co. v. CA, G.R. No. 126102, December 4, 2000

Labor Contracts!!! Case(s)

117. Abella vs. NLRC 152 SCRA 140 (1987) Administrative Regulations!!! Case(s)

118. Tiro vs. Hontanosas, 125 SCRA 697 (1983) Rental Laws!!! Case(s)

119. Caleon vs. Agus Development Corp., 207 SCRA 748 (1992)

Tax Exemptions

While tax exemptions contained in special franchises are in the nature of contracts and a part of the inducement for carrying on the franchise, these exemptions, nevertheless are far from being strictly contractual in nature. 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. Truly, 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 a grant which is beyond the purview of the non-impairment clause of the Constitution. (Meralco v. Laguna [GR 131359, 5 May 1999])

!!! Case(s)120. Meralco v. Province of Laguna, 306 SCRA 750 (1999)

Arrests, Searches and Seizures

Art. III, Sec. 2 and 3

Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.

Section 3.1. The privacy of communication and correspondence shall be inviolable

except upon lawful order of the court, or when public safety or order requires otherwise, as prescribed by law.

2. Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.

Preliminaries

1. Definition, Source and Construction of provision

a. Definition (search warrant)

A search warrant is an order in writing issued in the name of the People of the Philippines, signed by a judge and directed to a peace officer, commanding him to search for personal property described therein and bring it before the court. ( Section 1, Rule 126, Revised Rules of Court)

b. Origin

The present constitutional provision on the guarantee against unreasonable search and seizure had its origin in the 1935 Charter (Section 1 [3], Article III) which was worded as “The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, to be determined by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched, and the persons or things to be seized.” Said provision was in turn derived almost verbatim from the Fourth Amendment to the United States Constitution, which provided that “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” (People vs. Andre Marti [GR 81561, 18 January 1991])

c. Construction

As the protection of the citizen and the maintenance of his constitutional rights is one of the highest duties and privileges of the court, these constitutional guaranties should be given a liberal construction or a strict construction in favor of the individual, to prevent stealthy encroachment upon, or gradual depreciation of, the rights secured by them (State vs. Custer County, 198 Pac., 362; State vs. McDaniel, 231 Pac., 965; 237 Pac., 373). Since the proceeding is a drastic one, it is the general rule that statutes authorizing searches and seizures or search warrants must be strictly construed (Rose vs. St. Clair, 28 Fed. [2d], 189; Leonard vs. U. S., 6 Fed. [2d], 353; Perry vs. U. S., 14 Fed. [2d], 88; Cofer vs. State, 118 So., 613).

The Fourth Amendment’s policy against unreasonable searches and seizures authorizes warrants to search for contraband, fruits or instrumentalities of crime, or “any property that constitutes evidence of the commission of a criminal offense.” Upon proper showing, the warrant is to issue “identifying the property and naming or describing the person or place to be searched.” Probable cause for the warrant must be presented, but there is nothing in the Rule indicating that the officers must be entitled to arrest the owner of the “place” to be

searched before a search warrant may issue and the “property” may be searched for and seized. The Rule deals with warrants to search, and is unrelated to arrests. Nor is there anything in the Fourth Amendment indicating that absent probable cause to arrest a third party, resort must be had to a subpoena. (Zurcher vs. Stanford Daily [436 US 547, 31 May 1978])

Searches and seizures, in a technical sense, are independent of, rather than ancillary to, arrest and arraignment (ALI, A Model Code of Pre-Arraignment Procedure, Commentary 491; Proposed Off. Draft 1975).

2. Court’s Function, as to Search and Seizure

a. Issuance of search warrants, and power to quash warrants

It is undisputed that only judges have the power to issue search warrants. (Salazar vs. Achacoso, 183 SCRA 145 [1990]) This function is exclusively judicial. Inherent in the courts’ power to issue search warrants is the power to quash warrants already issued. In this connection, the Supreme Court has ruled that the motion to quash should be filed in the court that issued the warrant unless a criminal case has already been instituted in another court, in which case, the motion should be filed with the latter. (People vs. Court of Appeals, 291 SCRA 400 [1998]).

Because of the fundamental public interest in implementing the criminal law, the search warrant, a heretofore effective and constitutionally acceptable enforcement tool, should not be suppressed on the basis of surmise and without solid evidence supporting the change. Forbidding the warrant and insisting on the subpoena instead when the custodian of the object of the search is not then suspected of crime, involves serious hazards to criminal investigation. (Zurcher vs. Stanford Daily [436 US 547, 31 May 1978])

b. Determination of validity of search and seizure

What constitutes a reasonable or even an unreasonable search in any particular case is purely a judicial question, determinable from a consideration of the circumstances involved. (Valmonte v. De Villa, 178 SCRA 211, 216 [1989])

1. Purpose and Importance of the guaranty

a. Purpose

The purpose of the constitutional provisions against unlawful searches and seizures is to prevent violations of private security in person and property, and unlawful invasions of the sanctity of the home, by officers of the law acting under legislative or judicial sanction, and to give remedy against such usurpations when attempted. (Adams vs. New York, 192 U. S., 585.) But it does not prohibit the Government from taking advantage of unlawful searches made by a private person or under authority of state law. (Weeks vs. United States, 232 U. S., 383; Burdeau vs. McDowell, 256 U. S., 465.)

The house of every one is to him as his castle and fortress, as well for his defence against injury and violence, as for his repose. (Semayne’s Case, 77 Eng. Rep. 194, 5 Co. Rep. 91a, 91b, 195 [K. B.]) The overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic” meant that absent a warrant or exigent circumstances, police could not enter a home to make an arrest. An arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within. (Payton v. New York , 445 U. S. 573, 603-604 (1980])

b. Importance

As explained in People v. Burgos (144 SCRA 1) citing Villanueva v. Querubin (48 SCRA 345): “It is deference to one’s personality that lies at the core of this right but it could be also looked upon as a recognition of a constitutionally protected area, primarily one’s home, but not necessarily thereto confined. (Cf. Hoffa v. United States, 385 US 293 [1966]) What is sought to be guarded is a man’s prerogative to choose who is allowed entry to his residence. In that haven of refuge, his individuality can assert itself not only in the choice of who shall be welcome but likewise in the kind of objects he wants around him. There the state, however powerful, does not as such have access except under the circumstances above noted, for in the traditional formulation, his house, however humble, is his castle. Thus is outlawed any unwarranted intrusion by government, which is called upon to refrain from any invasion of his dwelling and to respect the privacies of his life. (Cf. Schmerber v. California, 384 US 757 [1966], Brennan, J. and Boyd v. United States, 116 630 [1886]). In the same vein, Landynski in his authoritative work (Search and Seizure and the Supreme Court [1966]), could fitly characterize constitutional right as the embodiment of a `spiritual concept: the belief that to value the privacy of home and person and to afford its constitutional protection against the long reach of government is no less than to value human dignity, and that his privacy must not be disturbed except in case of overriding social need, and then only under stringent procedural safeguards. (ibid, p. 74).”

!!! Case(s)121. Alvero v. Dizon, 76 Phil 637 (1946)

2. To Whom Directed

The constitutional proscription against unlawful searches and seizures applies as a restraint directed only against the government and its agencies tasked with the enforcement of the law. Thus, it could only be invoked against the State to whom the restraint against arbitrary and unreasonable exercise of power is imposed. The modifications introduced in the 1987 Constitution (RE: Sec. 2, Art. III; in relation to the phraseology of the 1935 Constitution) relate to the issuance of either a search warrant or warrant of arrest vis-a-vis the responsibility of the judge in the issuance thereof. The modifications introduced deviate in no manner as to whom the restriction or inhibition against unreasonable search and seizure is directed against. The restraint stayed with the State and did not shift to anyone else. (People vs. Andre Marti [GR 81561, 18 January 1991])

The constitutional right (against unreasonable search and seizure) refers to the immunity of one’s person, whether citizen or alien, from interference by government, included in which is his residence, his papers, and other possessions. There the state, however powerful, does not as such have the access except under the circumstances above noted, for in the traditional formulation, his house, however humble, is his castle. Thus is outlawed any unwarranted intrusion by government, which is called upon to refrain from any invasion of his dwelling and to respect the privacies of his life. (Villanueva v. Querubin, 48 SCRA 345 [1972]; Cf. Schermerber v. California, 384 US 757 [1966] and Boyd v. United States, 116 US 616 [1886]).

The Fourth Amendment gives protection against unlawful searches and seizures, and its protection applies to governmental action. Its origin and history clearly show that it was intended as a restraint upon the activities of sovereign authority, and was not intended to be a limitation upon other than governmental agencies; as against such authority it was the purpose of the Fourth Amendment to secure the citizen in the right of unmolested occupation of his dwelling and the possession of his property, subject to the right of seizure by process duly served. (Burdeau v. McDowell, 256 US 465 [1921], 41 S Ct. 547; 65 L.Ed. 1048)

!!! Case(s)122. People vs. Andre Marti, 193 SCRA 57 (1991)

3. Who May Invoke the Right?

a. In general

Alleged violations against unreasonable search and seizure may only be invoked against the State by an individual unjustly traduced by the exercise of sovereign authority. (People vs. Andre Marti [GR 81561, 18 January 1991])

The legality of a seizure can be contested only by the party whose rights have been impaired thereby, and that the objection to an unlawful search and seizure is purely personal and cannot be availed of by third parties. (Stonehill, et al. vs. Diokno, et al. [GR L-19550, 19 June 1967])

b. Corporations

Although, an officer of a corporation which is charged with a violation of a statute of the state of its creation, or of an act of Congress passed in the exercise of its constitutional powers, cannot refuse to produce the books and papers of such corporation, a corporation is

entitled to immunity, under the 4th Amendment, against unreasonable searches and seizures. A corporation is, after all, but an association of individuals under an assumed name and with a distinct legal entity. In organizing itself as a collective body it waives no constitutional immunities appropriate to such body. Its property cannot be taken without compensation. It can only be proceeded against by due process of law, and is protected, under the 14th Amendment, against unlawful discrimination. (Hale v. Henkel, 201 U.S. 43, 50 L. ed. 652.)

!!! Case(s)123. Bache and Co., vs. Ruiz, 37 SCRA 323 (1971) 124. Stonehill v. Diokno, 20 SCRA 383 (1967) 125. Zurcher vs. Stanford Daily, 436 U. S. 547 (1978) 126. Wilson v. Layne, 98-0083, May 24, 1999

4. Valid warrant

A search warrant is an order in writing, issued in the name of the People of the Philippine Islands, signed by a judge or a justice of the peace, and directed to a peace officer, commanding him to search for personal property and bring it before the court. (Alvarez vs. Court of First Instance of Tayabas [GR 45358, 29 January 1937]; citing Section 95, General Orders 58, as amended by section 6 of Act 2886)

Crime should exist first. In the issuance of search warrants, the Rules of Court requires a finding of probable cause in connection with one specific offense to be determined personally by the judge after examination of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the things to be seized. Hence, since there is no crime to speak of, the search warrant does not even begin to fulfill these stringent requirements and is therefore defective on its face. (Solid Triangle Sales Corp. vs. Sitchon [GR 144309, 23 November 2001])

Conditions for a valid warrant

a) Existence of Probable Cause

1. Probable cause defined, construed

Probable cause for a search is defined as such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the item(s), article(s) or object(s) sought in connection with said offense or subject to seizure and destruction by law is in the place to be searched. (People vs. Aruta, 288 SCRA 262 [1998]; Burgos v. Chief of Staff, AFP [GR 64261, 26 December 1984]) In the determination of probable cause, the court must necessarily resolve whether or not an offense exists to justify the issuance or quashal of the search warrant. (Solid Triangle Sales Corp. vs. Sitchon [GR 144309, 23 November 2001])

In applying the “probable cause” standard “by which a particular decision to search is tested against the constitutional mandate of reasonableness,” it is necessary “to focus upon the governmental interest which allegedly justifies official intrusion” and that in criminal investigations a warrant to search for recoverable items is reasonable “only when there is ‘probable cause’ to believe that they will be uncovered in a particular dwelling.” The critical element in a reasonable search is not that the owner of the property is suspected of crime but that there is reasonable cause to believe that the specific “things” to be searched for and seized are located on the property to which entry is sought. (Zurcher vs. Stanford Daily [436 US 547, 31 May 1978])

2. Probable cause in issuance of warrants distinguished from probable cause in preliminary investigation

While the power to issue search warrants upon showing probable cause is a function which is exclusively judicial, “the determination of probable cause during a preliminary investigation has been described as an executive function.” (People vs. Court of Appeals, 291 SCRA 400 [1998]) The proceedings for the issuance/quashal of a search warrant before a court on the one hand, and the preliminary investigation before an authorized officer on the other, are proceedings entirely independent of each other. One is not bound by the other’s finding as regards the existence of a crime. The purpose of each proceeding differs from the other. The first is to determine whether a warrant should issue or be quashed, and the second, whether an information should be filed in court. (Solid Triangle Sales Corp. vs. Sitchon [GR 144309, 23 November 2001])

3. Reliable information as basis for probable cause

Notwithstanding tips from confidential informants and regardless of the fact that the search yielded contraband, the mere act of looking from side to side while holding one’s abdomen, or of standing on a corner with one’s eyes moving very fast, looking at every person who came near, does not justify a warrantless arrest under said Section 5 (a). Neither does putting something in one’s pocket, handing over one’s baggage, riding a motorcycle, nor does holding a bag on board a trisikad sanction State intrusion. The same rule applies to crossing the street per se. Personal knowledge was also required in the case of People v. Doria. Recently, in People v. Binad Sy Chua, the Court declared invalid the arrest of the accused, who was walking towards a hotel clutching a sealed Zest-O juice box. For the exception in Section 5 (a), Rule 113 to apply, the Court ruled, two elements must concur: (1) the person to be arrested must execute an overt act indicating he has just committed, is actually committing, or is attempting to commit a crime; and (2) such overt act is done in the presence or within the view of the arresting officer. Reliable information alone is insufficient. In the following cases, the search was held to be incidental to a lawful arrest because of “suspicious” circumstances: People v. Tangliben (accused was “acting suspiciously”), People v. Malmstedt (a bulge on the accused’s waist), and People v. de Guzman (likewise a bulge on the waist of the accused, who was wearing tight-fitting clothes). There is, however, another set of jurisprudence that deems “reliable information” sufficient to justify a search incident to a warrantless arrest under Section 5 (a), Rule 113, thus deviating from Burgos. To this class of cases belong People v. Maspil, Jr., People v. Bagista, People v. Balingan, People v. Lising, People v. Montilla, People v. Valdez, and People v. Gonzales. In these cases, the arresting authorities were acting on information regarding an offense but there were no overt acts or

suspicious circumstances that would indicate that the accused has committed, is actually committing, or is attempting to commit the same. Significantly, these cases, except the last two, come under some other exception to the rule against warrantless searches. Thus, Maspil, Jr. involved a checkpoint search, Balingan was a search of a moving vehicle, Bagista was both, and Lising and Montilla were consented searches. Nevertheless, the great majority of cases conforms to the rule in Burgos, which, in turn, more faithfully adheres to the letter of Section 5(a), Rule 113. Note the phrase “in his presence” therein, connoting personal knowledge on the part of the arresting officer. (People vs. Tudtud [GR 144037, 26 September 2003])

In fine, probable cause exists in the following instances: (a) where the distinctive odor of marijuana emanated from the plastic bag carried by the accused; (People v. Claudio, 160 SCRA 646 [1988]) (b) where an informer positively identified the accused who was observed to be acting suspiciously; (People v. Tangliben, 184 SCRA 220 [1990]) (c) where the accused who were riding a jeepney were stopped and searched by policemen who had earlier received confidential reports that said accused would transport a quantity of marijuana; (People v. Maspil, Jr., 188 SCRA 751 [1990]) (d) where Narcom agents had received information that a Caucasian coming from Sagada, Mountain Province had in his possession prohibited drugs and when the Narcom agents confronted the accused Caucasian because of a conspicuous bulge in his waistline, he failed to present his passport and other identification papers when requested to do so; (People v. Malmsteadt, 198 SCRA 401 [1991]) (f) where the moving vehicle was stopped and searched on the basis of intelligence information and clandestine reports by a deep penetration agent or spy — one who participated in the drug smuggling activities of the syndicate to which the accused belong — that said accused were bringing prohibited drugs into the country; (People v. Lo Ho Wing, 193 SCRA 122 [1991]) (g) where the arresting officers had received a confidential information that the accused, whose identity as a drug distributor was established in a previous test-buy operation, would be boarding MV Dona Virginia and probably carrying shabu with him; (People v. Saycon, 236 SCRA 325 [1994]) (h) where police officers received an information that the accused, who was carrying a suspicious-looking gray luggage bag, would transport marijuana in a bag to Manila; (People v. Balingan, 241 SCRA 277 [1995]) and (i) where the appearance of the accused and the color of the bag he was carrying fitted the description given by a civilian asset. (People v. Valdez, 304 SCRA 140 [1999])

!!! Case(s)127. Burgos vs. Chief of Staff, 133 SCRA 800 (1984) 128. Chandler v. Miller, April 15, 1997, D-96-126 129. People v. Chua Ho San, 308 SCRA 432) (1999) 130. People v. Molina, G.R. No. 133917, February 19, 2001 131. Solid Triangle Sale v. Sheriff, G.R. No. 144309 November 23, 2001 132. People v. Salanguit, G.R. 133254, April 18, 2001

b) Personal determination by judge

1. In General

Personal examination by the judge of the complainant and his witnesses is necessary to enable him to determine the existence or non-existence of a probable cause, pursuant to Article III, Section 2, Article III of the 1987 constitution , and Section 4, Rule 126 of the Revised Rules of Court, both of which prohibit the issuance of warrants except “upon probable cause.” The determination of whether or not a probable cause exists calls for the exercise of judgment after a judicial appraisal of facts and should not be allowed to be delegated in the absence of any rule to the contrary. (Bache & Co. (Phil.) Inc. vs. Ruiz [GR L-32409, 27 February 1971]; Codal references modified to suit present Constitution and Rules of Court)

2. Obscene Materials

The case of Pita vs. Court of Appeals, GR 80806, 5 October 1989, (1) The authorities must apply for the issuance of a search warrant from a judge, if in their opinion, an obscenity rap is in order; (2) The authorities must convince the court that the materials sought to be seized are “obscene”, and pose a clear and present danger of an evil substantive enough to warrant State interference and action; (3) The judge must determine whether or not the same are indeed “obscene:” the question is to be resolved on a case-to-case basis and on His Honor’s sound discretion. (4) If, in the opinion of the court, probable cause exists, it may issue the search warrant prayed for; (5) The proper suit is then brought in the court under Article 201 of the Revised Penal Code; and (6) Any conviction is subject to appeal. The appellate court may assess whether or not the properties seized are indeed “obscene.” The Court states, however, that “these do not foreclose, however, defenses under the Constitution or applicable statutes, or remedies against abuse of official power under the Civil Code or the Revised Penal code.”

!!! Case(s)133. Amarga vs. Abbas, 98 Phil. 739 (1956) 134. Sta. Rosa Mining Co., vs. Fiscal Zabala, 153 SCRA 367 (1987) 135. People vs. Inting, 187 SCRA 785 (1990) 136. Paderanga vs. Drilon, G.R. 96080, April 19, 1991 137. Pita vs. CA, 178 SCRA 362 (1987) 138. Abdula v. Guiani. 326 SCRA 1 (2000)

c) Examination of witnesses

The implementing rule in the Revised Rules of Court, Section 5, Rule 126, is more emphatic and candid, for it requires the judge, before issuing a search warrant, to “personally examine on oath or affirmation the complainant and any witnesses he may produce.” (Bache & Co. (Phil.) Inc. vs. Ruiz [GR L-32409, 27 February 1971]; Codal references modified to suit present Constitution and Rules of Court) Mere affidavits of the complainant and his witnesses are thus not sufficient. The examining Judge has to take depositions in writing of the complainant and the witnesses he may produce and attach them to the record. (Roan v. Gonzales, GR 71410, 25 November 1986, 145 SCRA 694)

Listening to the stenographer’s readings of her notes, to a few words of warning against the commission of perjury, and administering the oath to the complainant and his witness; cannot be consider a personal examination. The reading of the stenographic notes to the

Judge did not constitute sufficient compliance with the constitutional mandate and the rule; for by that manner the Judge did not have the opportunity to observe the demeanor of the complainant and his witness, and to propound initial and follow-up questions which the judicial mind, on account of its training, was in the best position to conceive. These were important in arriving at a sound inference on the all-important question of whether or not there was probable cause. (Bache & Co. (Phil.) Inc. vs. Ruiz [GR L-32409, 27 February 1971])

Sufficiency of deposition or affidavit. The true test of sufficiency of a deposition or affidavit to warrant issuance of a search warrant is whether it has been drawn in a manner that perjury could be charged thereon and the affiant be held liable for damage caused. The oath required must refer to the truth of the facts within the personal knowledge of the applicant for search warrant, and/or his witnesses, not of the facts merely reported by a person whom one considers to be reliable. The oath required must refer to the truth of the facts within the personal knowledge of the petitioner or his witnesses, because the purpose thereof is to convince the committing magistrate, not the individual making the affidavit and seeking the issuance of the warrant, of the existence of probable cause. (Alvarez vs. Court of First Instance of Tayabas [GR 45358, 29 January 1937])

!!! Case(s)139. Pasion Vda. De Garcia vs. Locsin, 65 Phil 68 (1938) 140. Yee Sue Kuy vs. Almeda, 70 Phil. 141, (1940) 141. Alvarez vs. CFI, 64 Phil. 33 (1937) 142. Mata vs. Bayona , 128 SCRA 388 (1984)

d) Particularity of description

Purpose. A search warrant should particularly describe the place to be searched and the things to be seized. The evident purpose and intent of this requirement is to limit the things to be seized to those, and only those, particularly described in the search warrant — to leave the officers of the law with no discretion regarding what articles they shall seize, to the end that “unreasonable searches and seizures” may not be made, — that abuses may not be committed. (Uy Kheytin, et al. vs. Villareal, etc., et al., 42 Phil. 886, 896)

1. Description of Place

The 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 to be searched. (Prudente vs. Dayrit [GR 82870, 14 December 1989])

2. Description of items to be seized

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. (In People v. Rubio, 57 Phil. 384, 389 [1932]) Where by the nature of the goods to be seized, their description must be rather general, it is not required that a technical description be given, as this would mean

that no warrant could issue. As a corollary, however, we could not logically conclude that where the description of those goods to be seized have been expressed technically, all others of a similar nature but not bearing the exact technical descriptions could not be lawfully subject to seizure. Otherwise, the reasonable purpose of the warrant issued would be defeated by mere technicalities. (Yousef Al-Ghoul vs. Court of Appeals [GR 126859, 4 September 2001])

Tests. 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 (People vs. Rubio; 57 Phil. 384); 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 (idem., dissent of Abad Santos, J.,); or when the things described are limited to those which bear direct relation to the offense for which the warrant is being issued (Sec. 3, Rule 126, Revised Rules of Court).

One of the tests to determine the particularity in the description of objects to be seized under a search warrant is when the things described are limited to those which bear direct relation to the offense for which the warrant is being issued. (Bache and Co. [Phil.], Inc. v. Ruiz, 37 SCRA 823, 835 [1971])

!!! Case(s)143. Olaes vs. People, 155 SCRA 486 (1987) 144. Prudente vs. Judge Dayrit, 180 SCRA 69 (1989) 145. Chia vs. Coll. of Customs, 177 SCRA 755 (1989) 146. 20th Century Fox Film Corp. vs. CA, 164 SCRA 655 (1988) 147. Nolasco vs. Cruz Pano, 132 SCRA 152 (1985) 148. PICOP v. Asuncion, 307 SCRA 253) (1999) 149. Yousef Al Ghoul vs. C.A, GR No.126859, September 4, 2001

5. Objects of Seizure

Rule 126, Sec. 2

Section 2. Court where application for search warrant shall be filed. — An application for search warrant shall be filed with the following:

1. Any court within whose territorial jurisdiction a crime was committed.2. For compelling reasons stated in the application, any court within the

judicial region where the crime was committed if the place of the commission of the crime is known, or any court within the judicial region where the warrant shall be enforced.

However, if the criminal action has already been filed, the application shall only be made in the court where the criminal action is pending.

6. Warrantless searches

Rule 126, Sec. 12

Section 12. Delivery of property and inventory thereof to court; return and proceedings thereon. –

1. The officer must forthwith deliver the property seized to the judge who issued the warrant, together with a true inventory thereof duly verified under oath.

2. Ten (10) days after issuance of the search warrant, the issuing judge shall ascertain if the return has been made, and if none, shall summon the person to whom the warrant was issued and require him to explain why no return was made. If the return has been made, the judge shall ascertain whether section 11 of this Rule has been complied with and shall require that the property seized be delivered to him. The judge shall see to it that subsection (a) hereof has been complied with.

3. The return on the search warrant shall be filed and kept by the custodian of the log book on search warrants who shall enter therein the date of the return, the result, and other actions of the judge.

A violation of this section shall constitute contempt of court.

Section 4. Requisites for issuing search warrant. — A search warrant shall not issue except upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witness he may produce, and particularly describing the place to be searched and the things to be seized which may be anywhere in the Philippines.

The Constitutional proscription against unreasonable searches and seizures does not, of course, forestall reasonable searches and seizure. Verily, the rule is, the Constitution bars State intrusions to a person’s body, personal effects or residence except if conducted by virtue of a valid search warrant issued in compliance with the procedure outlined in the Constitution and reiterated in the Rules of Court; “otherwise such search and seizure become ‘unreasonable’ within the meaning of the aforementioned constitutional provision.” This interdiction against warrantless searches and seizures, however, is not absolute and such warrantless searches and seizures have long been deemed permissible by jurisprudence in instances of (1) search of moving vehicles, (2) seizure in plain view, (3) customs searches, (4) waiver or consent searches, (5) stop and frisk situations (Terry search), and (6) search incidental to a lawful arrest. The last includes a valid warrantless search and seizure pursuant to an equally valid warrantless arrest, for, while as a rule, an arrest is considered legitimate if effected with a valid warrant of arrest, the Rules of Court recognize permissible warrantless arrests, to wit: (1) arrests in flagrante delicto, (2) arrests effected in hot pursuit, and (3) arrests of escaped prisoners. (People vs. Chua Ho San [GR 128222, 17 June 1999])

The following instances are not deemed “unreasonable” even in the absence of a warrant: (1) Warrantless search incidental to a lawful arrest. (Sec. 12, Rule 126 of the Rules of Court and prevailing jurisprudence); (2) Search of evidence in “plain view”; (3) Search of a moving vehicle. Highly regulated by the government, the vehicle’s inherent mobility reduces

expectation of privacy especially when its transit in public thoroughfares furnishes a highly reasonable suspicion amounting to probable cause that the occupant committed a criminal activity; (4) Consented warrantless search; (5) Customs search; (6) Stop and Frisk; and (7) Exigent and emergency circumstances. (People v. Bolasa, 378 Phil. 1073, 1078-1079 [1999])

a) Valid Waiver

The constitutional immunity from unreasonable searches and seizures, being a personal one cannot he waived by anyone except the person whose rights are invaded or one who is expressly authorized to do so in his or her behalf (De Garcia v. Locsin, 65 Phil. 689 695). The consent must be voluntary in order to validate an otherwise illegal detention and search, i.e., the consent is unequivocal, specific, and intelligently given, uncontaminated by any duress or coercion. (68 Am Jur 2d Searches and Seizures, §135.) Hence, consent to a search is not to be lightly inferred, but must be shown by clear and convincing evidence. (68 Am Jur 2d Searches and Seizures, §136.)

The Supreme Court is not unmindful of cases upholding the validity of consented warrantless searches and seizure. But in these cases, the police officers’ request to search personnel effects was orally articulated to the accused and in such language that left no room for doubt that the latter fully understood what was requested. In some instance, the accused even verbally replied to the request demonstrating that he also understood the nature and consequences of such request. (People vs. Chua Ho San, 308 SCRA 432 [1999])

The question whether a consent to a search was in fact voluntary is a question of fact to be determined from the totality of all the circumstances. (Schneckloth vs. Bustamonte, 412 U.S. 218) In case of consented searches or waiver of the constitutional guarantee against obtrusive searches, it is fundamental that to constitute a waiver of a constitutional right, it must first appear, first, that the right exists; secondly, that the person involved had knowledge, actual or constructive, of the existence of such a right; and lastly, that said person had an actual intention to relinquish the right. ( People v. Burgos, 144 SCRA 1, 16 [1986]; citing Pasion Vda. de Garcia v. Locsin, 65 Phil 689 [1938]; 67 C. J., 299)

Relevant to this determination are the following characteristics of the person giving consent and the environment in which consent is given: (1) the age of the defendant; (2) whether he was in a public or secluded location; (3) whether he objected to the search or passively looked on; (4) the education and intelligence of the defendant; (5) the presence of coercive police procedures; (6) the defendant’s belief that no incriminating evidence will be found; (7) the nature of the police questioning; (8) the environment in which the questioning took place; and (9) the possibly vulnerable subjective state of the person consenting. 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. (United States vs. Tillman, 963 F. 2d 137; Florida vs. Royer, 460 U.S. 491; United States vs. Mendenhall, 446 U.S. 544.)

Implied acquiescence to the search, if there was any, could not have been more than mere passive conformity given under intimidating or coercive circumstances and is thus considered no consent at all within the purview of the constitutional guarantee. (People v. Encinada, 280 SCRA 72, 91 [1997]; citing Aniog v. Commission on Elections, 237 SCRA 424, 436-437 [1994])

In any event, the failure to resist or object to the execution of the warrant does not constitute an implied waiver of constitutional right. It is, as Judge Cooley observes, but a submission to the authority of the law. (Const. Lim., 8th ed., Vol. I, I, 630.) As the constitutional guaranty is not dependent upon any affirmative act of the citizen, the courts do not place the citizen in the position of either contesting an officer’s authority by force, or waiving his constitutional rights; but instead they hold that a peaceful submission to a search or seizure is not a consent or an invitation thereto, but is merely a demonstration of regard for the supremacy of the law. (56 C. J., pp. 1180, 1181.)

!!! Case(s)150. People vs. Omaweng, 213 SCRA 462 (1992) 151. People v. Correa, 285 SCRA 679 (1998) 152. People vs. Ramos, G.R. 85401-02, June 4, 1990 153. People v. Barros, 231 SCRA 557 (1994) 154. Veroy vs. Layague, 210 SCRA 97 (1992) 155. People vs. Damaso, 212 SCRA 457 (1992) 156. Lopez vs. Comm. Of Customs, 68 SCRA 320 (1975) 157. Caballes v. Court of Appeals, G.R. No. 136292, January 5, 2002 158. People vs. Asis, et. al., G.R. No. 142531, October 15, 2002 159. People vs. Tudtud, et. al., G.R. No. 144037, September 26, 2003

b) Incident to lawful arrest

The most important exception to the necessity for a search warrant is the right of search and seizure as an incident to a lawful arrest. A lawful arrest may be made either while a crime is being committed or after its commission. The right to search includes in both instances that of searching the person of him who is arrested, in order to find and seize things connected with the crime as its fruits or as the means by which it was committed. (Agnello vs. United States, 269 US 20.)

When one is legally arrested for an offense, whatever is found in his possession or in his control may be seized and used in evidence against him; and an officer has the right to make an arrest without a warrant of a person believed by the officer upon reasonable grounds to have committed a felony. (Carroll vs. United States, 267 US 132.)

While a contemporaneous search of a person arrested may be effected to deliver dangerous weapons or proofs or implements used in the commission of the crime and which search may extend to the area within his immediate control where he might gain possession of a weapon or evidence he can destroy, a valid arrest must precede the search. The process cannot be reversed. (People vs. Chua Ho San [GR 128222, 17 June 1999]; citing Malacat v. Court of Appeals, 283 SCRA 159, 175 [1997].)

A search incident to a lawful arrest is limited to the person of the one arrested and the premises within his immediate control. The rationale for permitting such a search is to prevent the person arrested from obtaining a weapon to commit violence, or to reach for incriminatory evidence and destroy it. (People vs. Salanguit [GR 133254-55, 19 April 2001]) When an arrest is made, it is reasonable for the arresting officer to search the person

arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee’s person and the area ‘within his immediate control’ — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence. There is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs — or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself. (Chimel v. California; 23 L. Ed. 2d 685, 23 June 1969)

Rule 126, Section 12, Rules of Court

Section 12. Delivery of property and inventory thereof to court; return and proceedings thereon. –

1. The officer must forthwith deliver the property seized to the judge who issued the warrant, together with a true inventory thereof duly verified under oath.

2. Ten (10) days after issuance of the search warrant, the issuing judge shall ascertain if the return has been made, and if none, shall summon the person to whom the warrant was issued and require him to explain why no return was made. If the return has been made, the judge shall ascertain whether section 11 of this Rule has been complied with and shall require that the property seized be delivered to him. The judge shall see to it that subsection (a) hereof has been complied with.

3. The return on the search warrant shall be filed and kept by the custodian of the log book on search warrants who shall enter therein the date of the return, the result, and other actions of the judge.

A violation of this section shall constitute contempt of court.

!!! Case(s)160. Chimel vs. California, 395 U. S. 752 (1964) 161. People vs. de la Cruz, G.R. 83988, April 18, 1990 162. People v. Kalubiran, 196 SCRA 645 (1991) 163. People v. Malmstedt, 198 SCRA 401 (1991) 164. People v. Cuenco, G.R. 126277, November 16, 1988165. Espano v. Court of Appeals, 288 SCRA 558 (1998) 166. People vs. Tangliben, 184 SCRA 220 (1990) 167. People v. Che Chun Ting, 328 SCRA 592 (2000) 168. People vs. Estrella, G.R. Nos. 138539-40, January 21, 2003 169. People vs. Libnao, et al., G.R. No. 136860, January 20, 2003

c) Plain view doctrine

1. Elements

Under the “plain view doctrine,” unlawful objects within the “plain view” of an officer who has the right to be in the position to have that view are subject to seizure and may be presented in evidence. (People v. Musa [GR 96177, 27 January 1993]; citing Harris v. United States, 390 U.S. 234, 19 L.Ed. 2d 1067 [1968]) For this doctrine to apply, there must be: (a) prior justification; (b ) inadvertent discovery of the evidence; and (c) immediate apparent illegality of the evidence before the police. (People v. Musa [GR 96177, 27 January 1993]; citing Coolidge v. New Hampshire, 403 U.S. 433,29 L. Ed. 2d 564 [1971]) The elements of plain-view are: (a) a prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties; (b) the evidence was inadvertently discovered by the police who have the right to be where they are; (c) the evidence must be immediately apparent; (d) “plain view” justified mere seizure of evidence without further search. (People v. Bolasa, 378 Phil. 1073, 1078-1079 [1999])

2. When object is in plain view

The law enforcement officer must lawfully make an initial intrusion or properly be in a position from which he can particularly view the area. (Harris v. United States, supra) In the course of such lawful intrusion, he came inadvertently across a piece of evidence incriminating the accused. (Coolidge v. New Hampshire, supra) The object must be open to eye and hand and its discovery inadvertent. (Roan v. Gonzales, 145 SCRA 687, 697 [1986]) It is clear that an object is in plain view if the object itself is plainly exposed to sight. The difficulty arises when the object is inside a closed container. Where the object seized was inside a closed package, the object itself is not in plain view and therefore cannot be seized without a warrant. However, if the package proclaims its contents, whether by its distinctive configuration, its transparency, or if its contents are obvious to an observer, then the contents are in plain view and may be seized. In other words, if the package is such that an experienced observer could infer from its appearance that it contains the prohibited article, then the article is deemed in plain view. (Robbins v. California, 453 U.S. 420, 69 L. Ed. 2d 744, 751 [1981]) It must be immediately apparent to the police that the items that they observe may be evidence of a crime, contraband or otherwise subject to seizure. (People v. Musa [GR 96177, 27 January 1993])

3. Plain-view objects as evidence

The warrantless search and seizure, as an incident to a suspect’s lawful arrest, may extend beyond the person of the one arrested to include the premises or surroundings under his immediate control. Objects in the “plain view” of an officer who has the right to be in the position to have that view are subject to seizure and may be presented as evidence. When the discovery of the evidence did not constitute a search, but where the officer merely saw what was placed before him in full view, the warrantless seizure of the object was legal on the basis of the “plain view” doctrine and upheld the admissibility of said evidence. (People v. Musa [GR 96177, 27 January 1993]) Merely to observe and look at that which is in plain sight is not a search. Having observed that which is open, where no trespass has been committed

in aid thereof, is not search (Chadwick v. State, 429 SW2d 135). Where the contraband articles are identified without a trespass on the part of the arresting officer, there is not the search that is prohibited by the constitution (US v. Lee 274 US 559, 71 L.Ed. 1202 [1927]; Ker v. State of California 374 US 23, 10 L.Ed.2d. 726 [1963]; Moore v. State, 429 SW2d 122 [1968]).

4. Limitations to plain-view

The “plain view” doctrine may not be used to launch unbridled searches and indiscriminate seizures nor to extend a general exploratory search made solely to find evidence of defendant’s guilt. The “plain view” doctrine is usually applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object. What the ‘plain view’ cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification — whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused — and permits the warrantless seizure. Of course, the extension of the original justification is legitimate only where it is immediately apparent to the police that they have evidence before them; the ‘plain view’ doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges. The “plain view” doctrine neither justify the seizure of the object where the incriminating nature of the object is not apparent from the “plain view” of the object. (People v. Musa [GR 96177, 27 January 1993])

Once the valid portion of the search warrant has been executed, the “plain view doctrine” can no longer provide any basis for admitting the other items subsequently found. As has been explained that “What the ‘plain view’ cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification –whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused — and permits the warrantless seizure. Of course, the extension of the original justification is legitimate only where it is immediately apparent to the police that they have evidence before them; the ‘plain view’ doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges.” (People vs. Salanguit [GR 133254-55, 19 April 2001] citing Coolidge v. New Hampshire, 403 U.S. 433,29 L. Ed. 2d 564 [1971])

!!! Case(s)170. Padilla v. CA, 269 SCRA 402 (1997) 171. People v. Valdez, G.R. No. 129296, September 25, 2000 172. Arizona v. Hicks, 480 U.S. 321 [1987] 173. People v. Compacion, G.R. No. 124442, July 20, 2001

d) Enforcement of fishing, customs and immigration laws

1. Fishing and customs laws

Search and seizure without search warrant of vessels and air crafts for violations of the customs laws have been the traditional exception to the constitutional requirement of a search warrant, because the vessel can be quickly moved out of the locality or jurisdiction in which the search warrant must be sought before such warrant could be secured; hence it is not practicable to require a search warrant before such search or seizure can be constitutionally effected (Papa vs. Mago, L-27360, Feb. 28, 1968, 22 SCRA 857, 871-74; Magoncia vs. Palacio, 80 Phil. 770, 774; Carroll vs. U.S. 267, pp. 132, 149, 158; Justice Fernando, The Bill of Rights, 1972 ed., p. 225; Gonzales, Philippine Constitutional Law, 1966 ed., p. 300). The same exception should apply to seizures of fishing vessels breaching our fishery laws: They are usually equipped with powerful motors that enable them to elude pursuing ships of the Philippine Navy or Coast Guard. (Roldan vs. Arca [GR L-25434, 25 July 1975])

2. Immigration laws

Persons may lose the protection of the search and seizure clause by exposure of their persons or property to the public in a manner reflecting a lack of subjective expectation of privacy, which expectation society is prepared to recognize as reasonable. Such recognition is implicit in airport security procedures. With increased concern over airplane hijacking and terrorism has come increased security at the nation’s airports. Passengers attempting to board an aircraft routinely pass through metal detectors; their carry-on baggage as well as checked luggage are routinely subjected to x-ray scans. Should these procedures suggest the presence of suspicious objects, physical searches are conducted to determine what the objects are. There is little question that such searches are reasonable, given their minimal intrusiveness, the gravity of the safety interests involved, and the reduced privacy expectations associated with airline travel. Indeed, travelers are often notified through airport public address systems, signs, and notices in their airline tickets that they are subject to search and, if any prohibited materials or substances are found, such would be subject to seizure. These announcements place passengers on notice that ordinary constitutional protections against warrantless searches and seizures do not apply to routine airport procedures. (People vs. Johnson [GR 138881, 18 December 2000])

!!! Case(s)

175. Roldan vs. Arca, 65 SCRA 320 (1975) 176. Hizon v. Court of Appeals, 265 SCRA 517 (1996) 177. People v. Gatward, 267 SCRA 785 (1997) 178. People v. Johnson, G.R. No. 138881, December 18, 2000 179. People vs. Suzuki, G.R. No. 120670, October 23, 2003) 180. Bureau of Customs v. Ogarlo, 329 SCRA 289 (2000)

e) “Stop and frisk”

Where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he

is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment, and any weapons seized may properly be introduced in evidence against the person from whom they were taken. (Terry vs. Ohio [392 US 1, 10 June 1968])

While probable cause is not required to conduct a “stop and frisk,” it nevertheless holds that mere suspicion or a hunch will not validate a “stop and frisk.” A genuine reason must exist, in light of the police officer’s experience and surrounding conditions, to warrant the belief that the person detained has weapons concealed about him. Finally, a “stop-and-frisk” serves a two-fold interest: (1) the general interest of effective crime prevention and detection, which underlies the recognition that a police officer may, under appropriate circumstances and in an appropriate manner, approach a person for purposes of investigating possible criminal behavior even without probable cause; and (2) the more pressing interest of safety and self-preservation which permit the police officer to take steps to assure himself that the person with whom he deals is not armed with a deadly weapon that could unexpectedly and fatally be used against the police officer. (Malacat vs. Court of Appeals [GR 123595, 12 December 1997])

!!! Case(s)

181. Terry vs. Ohio, 392 US 1 (1968) 182. People v. Solayao, 262 SCRA 255 (1996) 183. Manalili v. Court of Appeals, G.R. No. 113447, October 7, 1997 184. Malacat v. Court of Appeals, 283 SCRA 159 (1997) 185. Florida v. J.L., 98-1993, March 28, 2000

f) Search of moving vehicles

1. Rationale

The automobile is a swift and powerful vehicle of recent development, which has multiplied by quantity production and taken possession of our highways in battalions, until the slower, animal- drawn vehicles, with their easily noted individuality, are rare. Constructed as covered vehicles to standard form in immense quantities, and with a capacity for speed rivaling express trains, they furnish for successful commission of crime a disguising means of silent approach and swift escape unknown in the history of the world before their advent. The question of their police control and reasonable search on highways or other public places is a serious question far deeper and broader than their use in so-called “bootlegging’ or ‘rum running,’ which is itself is no small matter. While a possession in the sense of private ownership, they are but a vehicle constructed for travel and transportation on highways. Their active use is not in homes or on private premises, the privacy of which the law especially guards from search and seizure without process. The baffling extent to which they are successfully utilized to facilitate commission of crime of all degrees, from those against morality, chastity, and decency, to robbery, rape, burglary, and murder, is a matter of

common knowledge. Upon that problem a condition, and not a theory, confronts proper administration of our criminal laws. Whether search of and seizure from an automobile upon a highway or other public place without a search warrant is unreasonable is in its final analysis to be determined as a judicial question in view of all the circumstances under which it is made. (People v. Case [320 Mich., 379, 190 N.W., 389, 27 A.L.R., 686]) Peace officers may lawfully conduct searches of moving vehicles — automobiles, trucks, etc. — without need of a warrant, it not being practicable to secure a judicial warrant before searching a vehicle, since such vehicle can be quickly moved out of the locality or jurisdiction in which the warrant may be sought. (People v. Barros [GR 90640, 29 March 1994])

Highly regulated by the government, the vehicle’s inherent mobility reduces expectation of privacy especially when its transit in public thoroughfares furnishes a highly reasonable suspicion amounting to probable cause that the occupant committed a criminal activity. (Padilla vs. CA, et al., 269 SCRA 402 [1997]; citing United States vs. Rem, 984 F 2d 806; United States vs. McCoy, 977 F 2d 706; United States vs. Rusher, 966 F 2d 868; United States vs. Parker, 928 F 2d 365.) Thus, the rules governing search and seizure have over the years been steadily liberalized whenever a moving vehicle is the object of the search on the basis of practicality. This is so 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. 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. (Asuncion vs. CA, et al., 302 SCRA 490 (1999); People vs. Lo Ho Wing, 193 SCRA 122 [1991]) Searches without warrant of automobiles is also allowed for the purpose of preventing violations of smuggling or immigration laws, provided such searches are made at borders or “constructive borders” like checkpoints near the boundary lines of the State. (Almedia-Sanchez vs. United States, 37 L.ed. 2d 596; Carrol vs. United States, 267 U.S. 132)

2. Manner of search

In carrying out warrantless searches of moving vehicles, however, peace officers are limited to routine checks, that is, the vehicles are neither really searched nor their occupants subjected to physical or body searches, the examination of the vehicles being limited to visual inspection. (People v. Barros [GR 90640, 29 March 1994]) When, however, a vehicle is stopped and subjected to an extensive search, such a warrantless search would be constitutionally permissible only if the officers conducting the search have reasonable or probable cause to believe, before the search, that either the motorist is a law-offender or the contents or cargo of the vehicle are or have been instruments or the subject matter or the proceeds of some criminal offense. (People v. Bagista, 214 SCRA 63 [1992]; Valmonte v. de Villa, 185 SCRA 665 [1990]).

One such form of search of moving vehicles is the “stop-and-search” without warrant at military or police checkpoints which has been declared to be not illegal per se (People vs. Exala, 221 SCRA 494 [1993]; Valmonte vs. de Villa, 178 SCRA 211 [1989]), for as long as it is warranted by the exigencies of public order and conducted in a way least intrusive to motorists (People vs. Escaño, 323 SCRA 754 [2000], citing U.S. vs. Martinez-Fuerte, 428 U.S.

543). A checkpoint may either be a mere routine inspection or it may involve an extensive search. Routine inspections are not regarded as violative of an individual’s right against unreasonable search. The search which is normally permissible in this instance is limited to the following instances: (1) where the officer merely draws aside the curtain of a vacant vehicle which is parked on the public fair grounds; (2) simply looks into a vehicle; (3) flashes a light therein without opening the car’s doors; (4) where the occupants are not subjected to a physical or body search; (5) where the inspection of the vehicles is limited to a visual search or visual inspection; and (6) where the routine check is conducted in a fixed area.

The physical intrusion of a part of the body of an agent into the vehicle goes beyond the area protected by the Fourth Amendment (United States vs. Pierre, 932 F. 2d 377 cited in Hermann, Search and Seizure Checklists, 1994 ed., p. 246). On the other hand, when a vehicle is stopped and subjected to an extensive search, such a warrantless search would be constitutionally permissible only if the officers conducting the search have reasonable or probable cause to believe, before the search, that either the motorist is a law-offender or they will find the instrumentality or evidence pertaining to a crime in the vehicle to be searched (Obra, et al. vs. CA, et al., 317 SCRA 594 [1999]; People vs. Bagista, 214 SCRA 63 [1992]).

3. Existence of probable cause

The mere mobility of these vehicles, however, does not give the police officers unlimited discretion to conduct indiscriminate searches without warrants if made within the interior of the territory and in the absence of probable cause. (People vs. Malmstedt, 198 SCRA 401 (1991])

The Court has in the past found probable cause to conduct without a judicial warrant an extensive search of moving vehicles in situations where (1) there had emanated from a package the distinctive smell of marijuana; (2) agents of the Narcotics Command (”Narcom”) of the Philippine National Police (”PNP”) had received a confidential report from informers that a sizeable volume of marijuana would be transported along the route where the search was conducted; (3) Narcom agents had received information that a Caucasian coming from Sagada, Mountain Province, had in his possession prohibited drugs and when the Narcom agents confronted the accused Caucasian, because of a conspicuous bulge in his waistline, he failed to present his passport and other identification papers when requested to do so; (4) Narcom agents had received confidential information that a woman having the same physical appearance as that of the accused would be transporting marijuana; (5) the accused who were riding a jeepney were stopped and searched by policemen who had earlier received confidential reports that said accused would transport a large quantity of marijuana; and (6) where the moving vehicle was stopped and searched on the basis of intelligence information and clandestine reports by a deep penetration agent or spy. (Caballes vs. Court of Appeals [GR 136292, 15 January 2002])

!!! Case(s)

186. People v. Balingan, 241 SCRA 277 (1995) 187. Asuncion v. Court of Appeals, G.R. 125959, February 1, 1999

188. Papa vs. Mago, 22 SCRA 857 (1968) 189. People vs. CFI of Rizal, 101 SCRA 86 (1980) 190. Whren v. United States, 95-5841, January 10, 1996 191. Arkansas v. Sullivan, 00-00262, May 29, 2001

g) Emergency circumstances

As there was general chaos and disorder at that time … [that] the courts in the surrounding areas were obviously closed and, for that matter, the building and houses therein were deserted … [and that] the military operatives … had reasonable ground to believe that a crime was being committed, the case falls under one of the exceptions to the prohibition against a warrantless search. (People vs. de Gracia [GR 102009-10, 6 July 1994])

!!! Case(s)

192. People vs. De Gracia 233 SCRA 716 (1994)

h) Checkpoints

1. Minimal interference

Routine checkpoint stops do not intrude similarly on the motoring public. First, the potential interference with legitimate traffic is minimal. Motorists using these highways are not taken by surprise as they know, or may obtain knowledge of, the location of the checkpoints and will not be stopped elsewhere. Second checkpoint operations both appear to and actually involve less discretionary enforcement activity. The regularized manner in which established checkpoints are operated is visible evidence, reassuring to law-abiding motorists, that the stops are duly authorized and believed to serve the public interest. The location of a fixed checkpoint is not chosen by officers in the field, but by officials responsible for making overall decisions as to the most effective allocation of limited enforcement resources. We may assume that such officials will be unlikely to locate a checkpoint where it bears arbitrarily or oppressively on motorists as a class, and since field officers may stop only those cars passing the checkpoint, there is less room for abusive or harassing stops of individuals them there was in the case of roving-patrol stops. Moreover, a claim that a particular exercise of discretion in locating or operating a checkpoint is unreasonable is subject to post-stop judicial review. (U.S. v. Martinez-Fuerte, 428 US 543, 49 L Ed. 2d 1116 [1976])

2. Exercise of police power

Checkpoints may also be regarded as measures to thwart plots to destabilize the government, in the interest of public security. At the cost of occasional inconvenience, discomfort and even irritation to the citizen, the checkpoints during abnormal times, when conducted within reasonable limits, are part of the price we pay for an orderly society and a peaceful community. (Valmonte vs. de Villa, [GR 83988, 29 September 1989]) Under exceptional circumstances, as where the survival of organized government is on the balance, or where the lives and safety of the people are in grave peril, checkpoints may be allowed and installed by the government. Implicit in this proposition is, that when the situation clears

and such grave perils are removed, checkpoints will have absolutely no reason to remain. Admittedly, the routine checkpoint stop does intrude, to a certain extent, on motorist’s right to “free passage without interruption”, but it cannot be denied that, as a rule, it involves only a brief detention of travellers during which the vehicle’s occupants are required to answer a brief question or two. (Valmonte vs. de Villa, [GR 83988, 24 May1989])

3. Extent

For as long as the vehicle is neither searched nor its occupants subjected to a body search, and the inspection of the vehicle is limited to a visual search, said routine checks cannot be regarded as violative of an individual’s right against unreasonable search. These routine checks, when conducted in a fixed area, are even less intrusive. (Valmonte vs. de Villa, [GR 83988, 24 May 1989])

!!! Case(s)

193. Gen. De Villa vs. Valmonte G.R. No. 83988 (May 24, 1990) 194. Aniag vs. Comelec, 237 SCRA 424 (1994) 195. People v. Usana, 323 SCRA 754 (2000)

i) Inspection of buildings

Administrative searches are significant intrusions upon the interests protected by the Fourth Amendment, that such searches when authorized and conducted without a warrant procedure lack the traditional safeguards which the Fourth Amendment guarantees to the individual, and that the reasons put forth in Frank v. Maryland and in other cases for upholding these warrantless searches are insufficient to justify so substantial a weakening of the Fourth Amendment’s protections. Contrary to the assumption of Frank v. Maryland, Fourth Amendment interests are not merely “peripheral” where municipal fire, health, and housing inspection programs are involved whose purpose is to determine the existence of physical conditions not complying with local ordinances. (Camara vs. Municipal Court of the City and Country of San Francisco [387 US 523, 5 June 1967])

!!! Case(s)

196. Camara vs. Municipal Court, 387 U. S. 523 (1967)

7. Arrests with warrant

a. Probable cause defined

Probable cause means an actual belief or reasonable grounds of suspicion. The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is probably guilty of committing the offense, is based

on actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. A reasonable suspicion therefore must be founded on probable cause, coupled with good faith on the part of the peace officers making the arrest. (People v. Doria, 301 SCRA 668 [1999]; citing Umil v. Ramos, 202 SCRA 251, 263 [1991]; United States v. Santos, 36 Phil. 851 [1917]; People v. Bati, 189 SCRA 97 [1990]; People v. Sucro, 195 SCRA 388 [1990] and People v. Ramos 186 SCRA 184 [1990]) Thus, the term probable cause had been understood to mean a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man’s belief that the person accused is guilty of the offense with which he is charged. (People v. Encinada, 280 SCRA 72, 85-86 [1997]) Specifically with respect to arrests, it is such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed by the person sought to be arrested. (1 Bernas 87) In People v. Montilla, (285 SCRA 703 [1998]) the Court acknowledged that “the evidentiary measure for the propriety of filing criminal charges, and correlatively, for effecting warrantless arrest, has been reduced and liberalized.”

b. Probable cause distinguished from prima facie evidence

The confusing concepts of “prima facie evidence” and “probable cause” were clarified and set aright by the 1985 amendment of the Rules of Court which provides in Rule 112 thereof that the quantum of evidence required in preliminary investigation is such evidence as suffices to “engender as well founded belief” as to the fact of the commission of the crime and the respondent’s probable guilt thereof. It has the same meaning as the related phraseology used in other parts of the same Rule, that is, that the investigating fiscal “finds cause to hold the respondent for trial,” or where “a probable cause exists.” It should, therefore, be in that sense, wherein the right to effect a warrantless arrest should be considered as legally authorized. (People v. Montilla, 285 SCRA 703, 720-721 [1998])

c. Reliable information as basis for probable cause

The long-standing rule in this jurisdiction, applied with a great degree of consistency, is that “reliable information” alone is not sufficient to justify a warrantless arrest under Section 5 (a), Rule 113. The rule requires, in addition, that the accused perform some overt act that would indicate that he “has committed, is actually committing, or is attempting to commit an offense.” Thus, notwithstanding tips from confidential informants and regardless of the fact that the search yielded contraband, the mere act of looking from side to side while holding one’s abdomen, or of standing on a corner with one’s eyes moving very fast, looking at every person who came near, does not justify a warrantless arrest under said Section 5 (a). Neither does putting something in one’s pocket, handing over one’s baggage, riding a motorcycle, nor does holding a bag on board a trisikad sanction State intrusion. The same rule applies to crossing the street per se. (People vs. Tudtud [GR 144037, 26 September 2003])

d. Personal determination by judge

What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause. In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is not required

to personally examine the complainant and his witnesses. Following established doctrine and procedure, he shall: (1) personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he finds no probable cause, he may disregard the fiscal’s report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause. (Soliven vs. Makasiar, 167 SCRA 398)

First, as held in Inting, the determination of probable cause by the prosecutor is for a purpose different from that which is to be made by the judge. Whether there is reasonable ground to believe that the accused is guilty of the offense charged and should be held for trial is what the prosecutor passes upon. The judge, on the other hand, determines whether a warrant of arrest should be issued against the accused, i.e., whether there is a necessity for placing him under immediate custody in order not to frustrate the ends of justice. Thus, even if both should base their findings on one and the same proceeding or evidence, there should be no confusion as to their distinct objectives.

Second, since their objectives are different, the judge cannot rely solely on the report of the prosecutor in finding probable cause to justify the issuance of a warrant of arrest. Obviously and understandably, the contents of the prosecutor’s report will support his own conclusion that there is reason to charge the accused for an offense and hold him for trial. However, the judge must decide independently. Hence, he must have supporting evidence, other than the prosecutor’s bare report, upon which to legally sustain his own findings on the existence (or nonexistence) of probable cause to issue an arrest order. This responsibility of determining personally and independently the existence or nonexistence of probable cause is lodged in him by no less than the most basic law of the land. Parenthetically, the prosecutor could ease the burden of the judge and speed up the litigation process by forwarding to the latter not only the information and his bare resolution finding probable cause, but also so much of the records and the evidence on hand as to enable the His Honor to make his personal and separate judicial finding on whether to issue a warrant of arrest.

Lastly, it is not required that the complete or entire records of the case during the preliminary investigation be submitted to and examined by the judge. We do not intend to unduly burden trial courts by obliging them to examine the complete records of every case all the time simply for the purpose of ordering the arrest of an accused. What is required, rather, is that the judge must have sufficient supporting documents (such as the complaint, affidavits, counter-affidavits, sworn statements of witnesses or transcript of stenographic notes, if any) upon which to make his independent judgment or, at the very least, upon which to verify the findings of the prosecutor as to the existence of probable cause. The point is: he cannot rely solely and entirely on the prosecutor’s recommendation, as Respondent Court did in this case. Although the prosecutor enjoys the legal presumption of regularity in the performance of his official duties and functions, which in turn gives his report the presumption of accuracy, the Constitution, we repeat, commands the judge to personally determine probable cause in the issuance of warrants of arrest. This Court has consistently held that a judge fails in his bounden duty if he relies merely on the certification or the report of the investigating officer.” (Ho vs. People, 280 SCRA 365)

The question whether “probable cause” exists or not must depend upon the judgment and discretion of the judge or magistrate issuing the warrant. It does not mean that particular facts must exist in each particular case. It simply means that sufficient facts must be presented to the judge or magistrate issuing the warrant to convince him, not that the particular person has committed the crime, but that there is probable cause for believing that the person whose arrest is sought committed the crime charged. No rule can be laid down which will govern the discretion of the court in this matter. If he decides, upon the proof presented, that probable cause exists, no objection can be made upon constitutional grounds against the issuance of the warrant. His conclusion as to whether “probable cause” existed or not is final and conclusive. If he is satisfied that “probable cause” exists from the facts stated in the complaint, made upon the investigation by the prosecuting attorney, then his conclusion is sufficient upon which to issue the warrant for arrest. He may, however, if he is not satisfied, call such witnesses as he may deem necessary before issuing the warrant. The issuance of the warrant of arrest is prima facie evidence that, in his judgment at least, there existed “probable cause” for believing that the person against whom the warrant is issued is guilty of the crime charged. There is no law which prohibits him from reaching the conclusion that “probable cause” exists from the statement of the prosecuting attorney alone, or any other person whose statement or affidavit is entitled to credit in the opinion of the judge or magistrate. (US vs. Ocampo, 18 Phil. 1, 41-42)

Law and jurisprudence in fact require stricter grounds for valid arrests and searches without warrant than for the issuance of warrants therefore. In the former, the arresting person must have actually witnessed the crime being committed or attempted by the person sought to be arrested; or he must have personal knowledge of facts indicating that the person to be arrested perpetrated the crime that had just occurred. In the latter case, the judge simply determines personally from testimonies of witnesses that there exists reasonable grounds to believe that a crime was committed by the accused. (People vs. Tudtud [GR 144037, 26 September 2003])

8. Warrantless arrests

The Rules of Court recognizes permissible warrantless arrests. Thus, a peace officer or a private person may, without warrant, arrest a person: (a) when, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense (arrest in flagrante delicto); (b) when an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it (arrest effected in hot pursuit); and (c) when the person to be arrested is a prisoner who has escaped from a penal establishment or a place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another (arrest of escaped prisoners). (People v. Chua Ho San, 308 SCRA 432, 444 [1999]; and the Revised Rules on Criminal Procedure (as amended), Rule 113, Section 5.)

To constitute a valid in flagrante delicto arrest, two requisites must concur: (1) the person to be arrested must execute an overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime; and (2) such overt act is done in the presence or within the view of the arresting officer. (Concurring Opinion of Justice Artemio V. Panganiban in People v. Doria, 301 SCRA 668, 720 [1999]) As applied to in flagrante delicto

arrests, 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, are not sufficient to constitute probable cause that would justify an in flagrante delicto arrest. (People vs. Molina [GR 133917, 19 February 2001])

Rule 113, Sec. 5

Section 5. Arrest without warrant; when lawful. — A peace officer or a private person may, without a warrant, arrest a person:

1. When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;

2. When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and

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

In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with section 7 of Rule 112.

Art. 125, Revised Penal Code

Article 125. Delay in the delivery of detained persons to the proper judicial authorities. — The penalties provided in the next preceding article shall be imposed upon the public officer or employee who shall detain any person for some legal ground and shall fail to deliver such person to the proper judicial authorities within the period of; twelve (12) hours, for crimes or offenses punishable by light penalties, or their equivalent; eighteen (18) hours, for crimes or offenses punishable by correctional penalties, or their equivalent and thirty-six (36) hours, for crimes, or offenses punishable by afflictive or capital penalties, or their equivalent.

In every case, the person detained shall be informed of the cause of his detention and shall be allowed upon his request, to communicate and confer at any time with his attorney or counsel.

Rebellion as Continuing Offense

The arrest of persons involved in the rebellion whether as its fighting armed elements, or for committing non-violent acts but in furtherance of the rebellion, is more an act of capturing them in the course of an armed conflict, to quell the rebellion, than for the purpose of immediately prosecuting them in court for a statutory offense. The arrest, therefore, need not follow the usual procedure in the prosecution of offenses which requires the determination by a judge of the existence of probable cause before the issuance of a judicial

warrant of arrest and the granting of bail if the offense is bailable. Obviously the absence of a judicial warrant is no legal impediment to arresting or capturing persons committing overt acts of violence against government forces, or any other milder acts but really in pursuance of the rebellious movement. The arrest or capture is thus impelled by the exigencies of the situation that involves the very survival of society and its government and duly constituted authorities. If killing and other acts of violence against the rebels find justification in the exigencies of armed hostilities which (are) of the essence of waging a rebellion or insurrection, most assuredly so in case of invasion, merely seizing their persons and detaining them while any of these contigencies continues cannot be less justified. (Umil vs. Ramos [GR 81567, 9 July 1990])

!!! Case(s)

197. Umil vs. Ramos, G. R. 81567, July 9, 1990

Committed in the Presence of Police Officers

An offense is committed in the presence or within the view of an officer, within the meaning of the rule authorizing an arrest without a warrant, when the officer sees the offense, although at a distance, or hears the disturbances created thereby and proceeds at once to the scene thereof. (People vs. Sucro [GR 93239, 18 March 1991])

!!! Case(s)

198. People v. Sucro, 195 SCRA 388 (1991) 199. People V. Doria, 301 SCRA 668) (1999) 200. People v. Luisito Go, G.R. No. 116001, March 14, 2001 201. People v. De Guzman, GR No. 117952-53, February 14, 2001

Personal Knowledge of the Offense

In cases of in flagrante delicto arrests, a peace officer or a private person may without a warrant, arrest a person, when, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense. The arresting officer, therefore, must have personal knowledge of such fact or as recent case law adverts to, personal knowledge of facts or circumstances convincingly indicative or constitutive of probable cause. (People vs. Chua Ho San [GR 128222, 17 June 1999])

!!! Case(s)

202. People vs. Gerente, 219 SCRA 756 (1993) 203. People v. Sinoc, 275 SCRA 357 (1997) 204. People v. Baula, G.R. No. 132671, November 15, 2000 205. People v. Cubcubin, G.R. No. 136267, July 10, 2001

Time of Arrest

1. Hot Pursuit

Paragraph (b) of Section 5 is otherwise known as the doctrine of “hot pursuit” arrests. This doctrine is based on the rule that an arrest can be made without warrant when an offense has just been committed and the arresting officer has probable cause to believe based on personal knowledge of facts or circumstances that a crime has just been committed. It is not necessary that the arresting officers have direct knowledge of the crime. But they must have direct knowledge or view of the crime right after its commission. (People vs. Doria, 301 SCRA 668)

2. “Has just been committed”

It is not sufficient that a crime was indeed committed but it is required that the said crime has just been committed. The proximity of time of commission of the crime must be close to the time of the arrest. Otherwise, the arrest is illegal. (Pineda, Ernesto L., The Revised Rules on Criminal Procedure, 2003 Edition, 161.)

!!! Case(s)

206. People vs. Rodrigueza, 205 SCRA 791 (1992) 207. Go vs. Court of Appeals, 206 SCRA 586 (1992) 208. People v. Calimlim, G.R. No. 123980, August 30. 2001

Marked Money

The discovery of the marked money on [a person] did not mean he was caught [in fragrante delicto]. The marked money was not prohibited per se. Even if it were, that fact alone would not retroactively validate the warrantless search and seizure. (People vs. Enrile [GR 74189, 26 May 1993])

!!! Case(s)209. People vs. Enrile, 222 SCRA 586 (1993)

Lack of UrgencyAs a general rule, the procurement of a search warrant is required before a law enforcer may validly search or seize the person, house, papers or effects of any individual. When one was not caught in flagrante nor was a crime about to be committed or had just been committed, there is no justification for the warrantless arrest allowed under Rule 113 of the Rules of Court. Even expediency could not be invoked to dispense with the obtention of the warrant. Warrantless arrests cannot be resorted to when police officers have ample opportunity to secure a warrant of arrest.

Applications made during weekends and holidays. The Supreme Court’s Circular 19, dated 14 August 1987, which reads “3. Applications filed after office hours, during Saturdays, Sundays and holidays shall likewise be taken cognizance of and acted upon by any judge of the court having jurisdiction of the place to be searched, but in such cases the applicant shall certify and state the facts under oath, to the satisfaction of the judge, that the issuance is urgent”

merely provides for a guideline, departure from which would not necessarily affect the validity of an otherwise valid search warrant. (Prudente vs. Dayrit [GR 82870, 14 December 1989])

!!! Case(s)210. People v. Pasudag, G.R. No. 128822, May 4, 2001 211. People vs. Aminnudin, 163 SCRA 402 (1988)

Effect of Entry of Plea

By pleading “not guilty” at their arraignment, the accused submitted to the jurisdiction of the trial court, thereby curing any defect in their arrest, for the legality of an arrest affects only the jurisdiction of the court over their persons. (People vs. Plana [GR 128285, 27 November 2001])

!!! Case(s)212. People v. Plana G.R. No. 128285, November 27, 2001

Validity of Conviction

The illegal arrest of an accused is not sufficient cause for setting aside a valid judgment rendered upon a sufficient complaint after trial free from error. (People vs. De Guzman, 224 SCRA 93, 100 [1993]). The warrantless arrest, even if illegal, cannot render void all other proceedings including those leading to the conviction of the appellants and his co-accused, nor can the state be deprived of its right to convict the guilty when all the facts on record point to their culpability. (People vs. Manlulu, 231 SCRA 701, 710 [1994]; People vs. De Guia, 227 SCRA 614, 626 [1993])

!!! Case(s)213. People v. Conde, G.R. No. 113269, April 10, 2001

Privacy of Communication & Correspondence

Article III, Sec 3 (1)Section 3.

1. The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise, as prescribed by law.

R.A. No. 4200 (Anti-Wire Tapping Law) (1965)

Arts, 290, 291, 292 and 299. Revised Penal Code.

Article 290. Discovering secrets through seizure of correspondence. — The penalty of prision correccional in its minimum and medium periods and a fine not exceeding 500 pesos shall be imposed upon any private individual who in order to discover the secrets of another, shall seize his papers or letters and reveal the contents thereof.

If the offender shall not reveal such secrets, the penalty shall be arresto mayor and a fine not exceeding 500 pesos.

The provision shall not be applicable to parents, guardians, or persons entrusted with the custody of minors with respect to the papers or letters of the children or minors placed under their care or study, nor to spouses with respect to the papers or letters of either of them.

Article 291. Revealing secrets with abuse of office. — The penalty of arresto mayor and a fine not exceeding 500 pesos shall be imposed upon any manager, employee, or servant who, in such capacity, shall learn the secrets of his principal or master and shall reveal such secrets.

Article 292. Revelation of industrial secrets. — The penalty of prision correccional in its minimum and medium periods and a fine not exceeding 500 pesos shall be imposed upon the person in charge, employee or workman of any manufacturing or industrial establishment who, to the prejudice of the owner thereof, shall reveal the secrets of the industry of the latter.

Article 299. Robbery in an inhabited house or public building or edifice devoted to worship. — Any armed person who shall commit robbery in an inhabited house or public building or edifice devoted to religious worship, shall be punished by reclusion temporal, if the value of the property taken shall exceed 250 pesos, and if:

a. The malefactors shall enter the house or building in which the robbery was committed, by any of the following means:

1. Through a opening not intended for entrance or egress.

2. By breaking any wall, roof, or floor or breaking any door or window.

3. By using false keys, picklocks or similar tools.4. By using any fictitious name or pretending the exercise of public

authority.b. Or if –

1. The robbery be committed under any of the following circumstances:

2. By the breaking of doors, wardrobes, chests, or any other kind of locked or sealed furniture or receptacle;

3. By taking such furniture or objects to be broken or forced open outside the place of the robbery.

When the offenders do not carry arms, and the value of the property taken exceeds 250 pesos, the penalty next lower in degree shall be imposed.

The same rule shall be applied when the offenders are armed, but the value of the property taken does not exceed 250 pesos.

When said offenders do not carry arms and the value of the property taken does not exceed 250 pesos, they shall suffer the penalty prescribed in the two next preceding paragraphs, in its minimum period.

If the robbery be committed in one of the dependencies of an inhabited house, public building, or building dedicated to religious worship, the penalties next lower in degree than those prescribed in this article shall be imposed.

!!! Case(s)214. Gaanan vs. IAC, 145 SCRA 113 (1986) 215. Katz vs. U.S., 389 U.S. 347 (1967) 216. Ramirez vs. CA, G.R. No. 93833, September 28, 1995

1. Privileged Communications

a. Foundation / Basis

The doctrine of privileged communication rests upon public policy,’which looks to the free and unfettered administration of justice, though, as an incidental result, it may in some instances afford an immunity to the evil-disposed and malignant slanderer. (Abbott vs. National Bank of Commerce of Tacoma, 175 U.S., 409, 411) Public policy is the foundation of the doctrine of privilege communications. It is based upon the recognition of the fact that the right of the individual to enjoy immunity from the publication or untruthful charges derogatory to his character is not absolute and must at times yield to the superior necessity of subjecting to investigation the conduct of persons charged with wrong-doing. In order to accomplish this purpose and to permit private persons having, or in good faith believing themselves to have, knowledge to such wrong doing, to perform the legal, moral, social duty

resulting from such knowledge or belief, without restraining them by the fear that an error, no matter how innocently or honestly made, may subject them to punishment for defamation, the doctrine of qualified privilege has been evolved. (U.S. vs. Cañete, et al., 38 Phil. 235)

b. When injunction applies

The constitutional injunction declaring “the privacy of communication and correspondence [to be] inviolable” is no less applicable simply because it is the wife (who thinks herself aggrieved by her husband’s infidelity) who is the party against whom the constitutional provision is to be enforced. The only exception to the prohibition in the Constitution is if there is a “lawful order [from a] court or when public safety or order requires otherwise, as prescribed by law.” (Zulueta vs. Court of Appeals [GR 107383, 20 February 1996])

c. When injunction does not apply

The constitutional right of freedom of speech or right to privacy cannot be used as a shield for contemptuous acts against the Court. (In RE Laureta [GR 68635, 12 March 1987])

!!! Case(s)217. In Re Laureta, 148 SCRA 382 (1987) 218. People vs. Albofera, 152 SCRA 123 (1987) 219. Zulueta v. Court of Apeals, 253 SCRA 699 (1996) 220. Deano v. Godinez, 12 SCRA 483 (1964) 221. Waterhouse Drug Corporation v. NLRC, G.R. No. 113271. October 16, 1997

2. Exclusionary RuleArt. III, Sec. 3(2)Section 3.xxx

2. Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.

Background. Following the exclusionary rule laid down in Mapp v. Ohio by the US Federal Supreme Court (367 US 643, 81 S.Ct. 1684, 6 L.Ed. 1081 [1961]), the Supreme Court, in Stonehill v. Diokno (20 SCRA 383 [1967]), declared as inadmissible any evidence obtained by virtue of a defective search and seizure warrant, abandoning in the process the ruling earlier adopted in Moncado v. People’s Court (80 Phil. 1 [1948]) wherein the admissibility of evidence was not affected by the illegality of its seizure.

Reason. The reason for the exclusion of evidence competent as such, which has been unlawfully acquired, is that exclusion is the only practical way of enforcing the constitutional privilege. In earlier times the action of trespass against the offending official may have been protection enough; but that is true no longer. Only in case the prosecution which itself controls the seizing officials, knows that it cannot profit by their wrong, will that wrong be

repressed”. (Judge Learned Hand, Pugliese (1945) 153 F. 2d. 497.) Without the exclusionary rule, the right to privacy would be a form, of words, valueless and undeserving of mention in a perpetual charter of inestimable human liberties; so too, without this rule, the freedom from state invasions of privacy would be so ephemeral and so neatly severed from its conceptual nexus with the freedom from all brutish means of coercing evidence as not to merit the Court’s high regard as a freedom implicit in the concept of ordered liberty. (Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. ed. 2d 1081, 1090 [1961])

If letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense, the protection of the fourth Amendment, declaring his rights to be secure against such searches and seizures, is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution. The efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land. (Weeks vs. United States (1914) 232 US 383, 58 L. ed, 652, 34 S. Ct. 341)

The exclusion of such evidence is the only practical means of enforcing the constitutional injunction against unreasonable searches and seizure. The non-exclusionary rule is contrary to the letter and spirit of the prohibition against unreasonable searches and seizures. (Stonehill v. Diokno, 20 SCRA 383 [1967].)

Effect of plea. As stated in the case of People v. Barros (231 SCRA 557 [1994]), “It might be supposed that the non-admissibility of evidence secured through an invalid warrantless arrest or a warrantless search and seizure may be waived by an accused person. The a priori argument is that the invalidity of an unjustified warrantless arrest, or an arrest effected with a detective warrant of arrest may be waived by applying for and posting of bail for provisional liberty, so as to estop an accused from questioning the legality or constitutionality of his detention or the failure to accord him a preliminary investigation. [The Court does] not believe, however, that waiver of the latter necessarily constitutes, or carries with it, waiver of the former. . . Waiver of the non-admissibility of the ” fruits” of an invalid warrantless arrest and of a warrantless search and seizure is not casually to be presumed, if the constitutional right against unlawful searches and seizures is to retain its vitality for the protection of our people.”

!!! Case(s)222. Silverthorne Lumber vs. US, 251 US 385 (1920) 223. People v. Aruta, G. R. 120915, April 3. 1998 224. People v. Rondero, G.R. 125687, December 9, 1999

3. Liability for damages

Article 32 of the Civil Code provides that “Any public officer or employee, or any private individual who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages:

1. Freedom of religion; 2. Freedom of speech; 3. Freedom to write for the press or to maintain a periodical publication; 4. Freedom from arbitrary or illegal detention;5. Freedom of suffrage;6. The right against deprivation of property without due process of law;7. The right to a just compensation when private property is taken for public use;8. The right to the equal protection of the laws;9. The right to be secure in one’s person, house, papers, and effects against

unreasonable searches and seizures;10. The liberty of abode and of changing the same;11. The privacy of communication and correspondence;12. The right to become a member of associations or societies for purposes not

contrary to law;13. The right to take part in a peaceable assembly to petition the Government for

redress of grievances;14. The right to be free from involuntary servitude in any form;15. The right of the accused against excessive bail;16. The right of the accused to be heard by himself and counsel, to be informed of the

nature and cause of the accusation against him, to have a speedy and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witness in his behalf;

17. Freedom from being compelled to be a witness against one’s self, or from being forced to confess guilt, or from being induced by a promise of immunity or reward to make such confession, except when the person confessing becomes a State witness;

18. Freedom from excessive fines, or cruel and unusual punishment, unless the same is imposed or inflicted in accordance with a statute which has not been judicially declared unconstitutional; and

19. Freedom of access to the courts.

In any of the cases referred to in this article, whether or not the defendant’s act or omission constitutes a criminal offense, the aggrieved party has a right to commence an entirely separate end distinct civil action for damages, and for other relief. Such civil action shall proceed independently of any criminal prosecution (if the latter be instituted), and may be proved by a preponderance of evidence.

The indemnity shall include moral damages. Exemplary damages may also be adjudicated.

The responsibility herein set forth is not demandable from a judge unless his act or omission constitutes a violation of the Penal Code or other penal statute.

Article 32 clearly speaks of an officer or employee or person “directly” or “indirectly” responsible for the violation of the constitutional rights and liberties of another. Thus, it is not the actor alone (i.e. the one directly responsible) who must answer for damages under Article 32; the person indirectly responsible has also to answer for the damages or injury caused to the aggrieved party. By this provision, the principle of accountability of public officials under the Constitution acquires added meaning and assumes a larger dimension. No

longer may a superior official relax his vigilance or abdicate his duty to supervise his subordinates, secure in the thought that he does not have to answer for the transgressions committed by the latter against the constitutionally protected rights and liberties of the citizen. (Aberca vs. Ver [GR L-69866, 15 April 1988])

!!! Case(s)225. Aberca vs. Ver, 160 SCRA 590 (1989)