upsolid2010politicallawpre week.unlocked

8/12/2019 UPSolid2010PoliticalLawPre Week.unlocked

1/50


2/50

POLITICAL LAW PRE-WEEK2

PRE-WEEK

POLITICAL LAW

CONSTITUTIONAL LAW 1

Q:What is the power of judicial review?

A: The judiciary has the power to determine the

nature, scope and extent of powers of eachbranch of the government. As enunciated byJustice Laurel in Angara vs. ElectoralCommission (1936), The Constitution itself hasprovided for the instrumentality of the judiciaryas the rational way. And when the judiciarymediates to allocate constitutional boundaries, itdoes not assert any superiority over the otherdepartments; it does not in reality nullify orinvalidate an act of the legislature, but onlyasserts the solemn and sacred obligationassigned to it by the Constitution to determineconflicting claims of authority under the

Constitution and to establish for the parties in anactual controversy the rights which thatinstrument secures and guarantees to themthis power of judicial review is limited to actualcases and controversies to be exercised afterfull opportunity of argument by the parties, andlimited further to the constitutional questionraised or the very lis mota presented In casesof conflict, the judicial department is the onlyconstitutional organ which can be called upon todetermine the proper allocation of powersbetween the several departments and amongthe integral or constituent units thereof.

Q:What are the requisites of JudicialReview?

A: the following are the requisites of judicialreview:

(1) The existence of an actual and appropriatecase;

(2) A personal and substantial interest of theparty raising the constitutional question;

(3) The exercise of judicial review is pleaded atthe earliest opportunity; and

(4) The constitutional question is the lis mota of

the case.

(Philippine Constitution Association vs Enriquez,1994)

Taxpayers, voters, concerned citizens, andlegislators may be accorded standing to sue,provided that the following requirements aremet:

(1) the cases involve constitutional issues;

(2) for taxpayers, there must be a claim ofillegal disbursement of public funds or thatthe tax measure is unconstitutional;

(3) for voters, there must be a showing ofobvious interest in the validity of the electionlaw in question;

(4) for concerned citizens, there must be ashowing that the issues raised are oftranscendental importance which must besettled early; and

(5) for legislators, there must be a claim that theofficial action complained of infringes upontheir prerogatives as legislators. (David vsMacapagal-Arroyo, 2006)

Or in general, there is a liberal application of thestanding to sue if the issue involved is oftranscendental importance.

Q:What is the principle of separation ofpowers? (Angara vs. Electoral Commission)

A: The separation of powers is a fundamentalprinciple in our system of government. It obtainsnot through express provision but by actualdivision in our Constitution. Each department ofthe government has exclusive cognizance ofmatters within its jurisdiction, and is supremewithin its own sphere. But it does not follow fromthe fact that the three powers are to be keptseparate and distinct that the Constitutionintended them to be absolutely unrestrained andindependent of each other. The Constitution hasprovided for an elaborate system of checks andbalances to secure coordination in the workingsof the various departments of the government.

But in the main, the Constitution has blocked outwith deft strokes and in bold lines, allotment ofpower to the executive, the legislative and the

judicial departments of the government. Theoverlapping and interlacing of functions andduties between the several departments,however, sometimes makes it hard to say justwhere the one leaves off and the other begins.

Q: What is a non self-executing provision?

A: It is a provision which calls for the enactmentof a law to make its particular provisionsoperative. In the case of Manila Prince Hotel vsGSIS, it was held that A provision which laysdown a general principle, such as those found in

Art. II of the 1987 Constitution, is usually notself-executing. But a provision which is complete


3/50


in itself and becomes operative without the aid ofsupplementary or enabling legislation, or thatwhich supplies sufficient rule by means of whichthe right it grants may be enjoyed or protected,is self-executing. Thus a constitutional provisionis self-executing if the nature and extent of theright conferred and the liability imposed are fixedby the constitution itself, so that they can bedetermined by an examination and constructionof its terms, and there is no language indicatingthat the subject is referred to the legislature foraction.

Q: Can Senate, in proposing amendments to arevenue bill, introduce an entirely new version ofthe bill passed to it by the House of Representatives for approval?

A: Yes. Tolentino vs Sec of Finance providesthat The power of the Senate to propose orconcur with amendments is apparently withoutrestriction. It would seem that by virtue of thispower, the Senate can practically re-write a bill

required to come from the House and leave onlya trace of the original bill The above-mentioned bills are supposed to be initiated bythe House of Representatives because it is morenumerous in membership and therefore alsomore representative of the people. Moreover, itsmembers are presumed to be more familiar withthe needs of the country in regard to theenactment of the legislation involved. TheSenate is, however, allowed much leeway in theexercise of its power to propose or concur withamendments to the bills initiated by the House ofRepresentatives. Thus, such is not a violation of

Sec. 24, Art VI of the Constitution whichprovides that all revenue bills shall originate fromthe lower house.

Q:Distinguish: Pardon and Amnesty.(Barrioquinto vs Fernandez, 1949)

A:

Pardon Amnesty

Granted by the ChiefExecutive

A proclamation of theChief Executive withthe concurrence of themajority of all

members of theCongress (Sec 19, ArtVII)

A private act whichmust be pleaded andproved by the personpardoned

A public act

No judicial not ice Courts should takejudicial notice

Looks forward andrelieves the offenderfrom the consequencesof an offense of whichhe has been convicted,that is, it abolishes orforgives thepunishment, and forthat reason it does "norwork the restoration ofthe rights to hold publicoffice, or the right ofsuffrage, unless suchrights be expresslyrestored by the termsof the pardon," and it"in no case exemptsthe culprit from thepayment of the civilindemnity imposedupon him by thesentence"

Looks backward andabolishes and putsinto oblivion theoffense itself, it sooverlooks andobliterates the offensewith which he ischarged that theperson released byamnesty standsbefore the lawprecisely as though hehad committed nooffense.

Granted to one afterconviction

Granted to classes ofpersons or communities who maybe guilty of politicaloffenses, generallybefore or after theafter the institution ofthe criminalprosecution andsometimes after conviction

Q: W hat are the requirements for the

establishment of foreign military bases, troops orfacilities in the Philippines?

A: Art. XVIII, Sec. 25 of the Constitution provideshas three requirements:

1. It must be under a treaty

2. The treaty must be duly concurred in bythe Senate, and when so required byCongress, ratified by a majority of thevotes cast in a national referendum

3. Recognized as a treaty by the othercontracting state

In the case of Bayan vs. Zamora, it was held that

the VFA, an executive agreement, would sufficeas a treaty, since in international law, executiveagreements have the same force and effect astreaties.

Q: What is the effect of an act subsequentlydeclared unconstitutional? De Agbayani vsPNB, 1971


4/50


A: The orthodox view on an unconstitutional actis that it cannot be the source of any legal rightsor duties. Nor can it justify any official act takenunder it. Its repugnancy to the fundamental lawonce judicially declared results in its being to allintents and purposes a mere scrap of paper.

However, such a view may not be sufficientlyrealistic. It does not admit of doubt that prior tothe declaration of nullity such challenged

legislative or executive act must have been inforce and had to be complied with. This is so asuntil after the judiciary, in an appropriate case,declares its invalidity, it is entitled to obedienceand respect. Parties may have acted under itand may have changed their positions Theactual existence of a statute, prior to such adetermination [of unconstitutionality], is anoperative fact and may have consequenceswhich cannot justly be ignored. The past cannotalways he erased by a new judicialdeclarationIt would be to deprive the law of itsquality of fairness and justice then, if there be norecognition of what had transpired prior to suchadjudication.

Q: Does the appointment of theCommissioner of Bureau of Customs needapproval from Commission of Appointments? Sarmiento vs Mison, 1987

A: No. Art VII, Sec 16 provides for 4 groups ofofficers whom the President shall appoint, viz:

First, the heads of the executive departments,ambassadors, other public ministers andconsuls, officers of the armed forces from therank of colonel or naval captain, and other

officers whose appointments are vested in him inthis Constitution;

Second, all other officers of the Governmentwhose appointments are not otherwise providedfor by law;

Third, those whom the President may beauthorized by law to appoint;

Fourth, officers lower in rank whoseappointments the Congress may by law vest inthe President alone.

The first group of officers is clearly appointedwith the consent of the Commission on

Appointments. Appointments of such officers areinitiated by nomination and, if the nomination isconfirmed by the Commission on Appointments,the President appoints.

In the 1987 Constitution, the clear andexpressed intent of its framers was to excludepresidential appointments from confirmation bythe Commission on Appointments, except

appointments to offices expressly mentioned inthe first sentence of Sec. 16, Article VII.

In this case, the position of Commissioner of theBureau of Customs (a bureau head) is not oneof those within the first group of appointmentswhere the consent of the Commission on

Appointments is required. Moreover, thePresident is expressly authorized by law toappoint the Commissioner of the Bureau of

Customs.

Q: Is the requirement of annual submissionof a Statement of Assets and Liabilities avalid exercise of police power? Morfe vsMutuc, 1968

A: Yes. The measure was aimed at curtailingand minimizing the opportunities for officialcorruption and maintaining a standard ofhonesty in the public service. It is intended tofurther promote morality in public administration.

A public office must indeed be a public trust. Theconditions then prevailing called for norms of

such character. The times demanded such aremedial device.

Police power is defined as embracing the powerto prescribe regulations to promote the health,morals, education, good order, safety, or thegeneral welfare of the people. It is the power

1. to promote the general welfare andpublic interest;

2. to enact such laws in relat ion topersons and property as may promotepublic health, public morals, publicsafety and the general welfare of each

inhabitant;3. to preserve public order and to prevent

offenses against the state and toestablish for the intercourse of citizenwith citizen those rules of good mannersand good neighborhood calculated toprevent conflict of rights.

It would be to dwell in the realm of abstractionsand to ignore the harsh and compelling realitiesof public service with its ever-present temptationto heed the call of greed and avarice tocondemn as arbitrary and oppressive arequirement as that imposed on public officials

and employees to file such sworn statement ofassets and liabilities every two years afterhaving done so upon assuming office. The dueprocess clause is not susceptible to such areproach. There was therefore nounconstitutional exercise of the police power.


5/50


Q: Can government validly take overprivately owned public utility or businessaffected with public interest?

A: Yes, subject to the requirement laid down inArt. XII, Sec. 17, that it

1. be during a time of national emergency,

2. when the public interest so requires; and

3. under reasonable terms prescribed by it.

In the case of David vs Macapagal-Arroyo(2006), the Supreme Court held that:

Generally, Congress is the repository ofemergency powers. This is evident in the tenorof Section 23 (2), Article VI authorizing it todelegate such powers to the President.Certainly, a body cannot delegate a power notreposed upon it. However, knowing that duringgrave emergencies, it may not be possible orpracticable for Congress to meet and exerciseits powers, the Framers of our Constitutiondeemed it wise to allow Congress to grantemergency powers to the President, subject to

certain conditions, thus:(1) T here must be a war or other

emergency.

(2) The delegation must be for a limitedperiod only.

(3) The delegation must be subject to suchrestrictions as the Congress mayprescribe.

(4) The emergency powers must beexercised to carry out a national policydeclared by Congress.

Section 17, Article XII must be understood as an

aspect of the emergency powers clause. Thetaking over of private business affected withpublic interest is just another facet of theemergency powers generally reposed uponCongress. Thus, when Section 17 states thatthe the State may, during the emergency andunder reasonable terms prescribed by it,temporarily take over or direct the operation ofany privately owned public utility or businessaffected with public interest, it refers toCongress, not the President. While thePresident alone can declare a state of nationalemergency, however, without legislation, he hasno power to take over privately-owned publicutility or business affected with public interest.The President cannot decide whetherexceptional circumstances exist warranting thetake over of privately-owned public utility orbusiness affected with public interest. Nor canhe determine when such exceptionalcircumstances have ceased. Likewise, withoutlegislation, the President has no power to pointout the types of businesses affected with public

interest that should be taken over. In short, thePresident has no absolute authority to exerciseall the powers of the State under Section 17,

Article VII in the absence of an emergencypowers act passed by Congress.

Note: The term Emergency is not limited totyphoons, tsunami, hurricane and similaroccurrences, but, as a generic term, connotes

the existence of conditions suddenly intensifyingthe degree of existing danger to life or well-beingbeyond that which is accepted as normal.


6/50


CONSTITUTIONAL LAW 2

I. Bill of Rights - In General

Q: What is the Bill of Rights?A: It is a declaration and enumeration of aperson's fundamental civil and political rights. Italso imposes safeguards against violations bythe government, by individuals, or by groups of

individuals.

Q: What relationship does it govern?A: The Bill of Rights governs the relationshipbetween the individual and the state. Its concernis not the relation between individuals, betweena private individual and other individuals. Whatthe Bill of Rights does is to declare someforbidden zones in the private sphereinaccessible to any power holder. (People v.Marti)

Q: What are Civil Rights?

A: Rights that belong to an individual by virtue ofhis citizenship in a state or community (e.g.,rights to property, marriage, freedom to contract,equal protection, etc.)

Q: What are Political Rights?A: Rights that pertain to an individuals

citizenship vis--vis the management of thegovernment (e.g., right of suffrage, right to

petition government for redress, right to holdpublic office, etc.)

Q: What are social and Economic Rights?

A: Rights which are intended to insure the well-being and economic security of the individual

Q: What are the bases of the Bill of Rights?A:

1. Importance accorded to the dignity andworth of the individual.

2. Protection against arbitrary actions ofgovernment and other members ofsociety

Q: What are the purposes of the Bill ofRights?

A:1. To preserve democratic ideals2. To safeguard fundamental rights3. To promote the happiness of an

individual

The Bill of Rights is designed to preserve theideals of liberty, equality and security "againstthe assaults of opportunism, the expediency ofthe passing hour, the erosion of small

encroachments, and the scorn and derision ofthose who have no patience with generalprinciples." (Philippine Blooming MillsEmployees Org v. Phil. Blooming Mills Co. Inc)

II. Due Process

Q: What is due process of law?A: Due process of law simply states that [i]t is

part of the sporting idea of fair play to hear "theother side" before an opinion is formed or adecision is made by those who sit in judgment.(Ynot v. IAC, 1987)

It covers any governmental action whichconstitutes a deprivation of some person's life,liberty, or property.

Q: What are the basic guarantees of dueprocess?

A: Notice and opportunity to be heard to personswho would be affected by the order or act

contemplated.

Q: What are the exceptions to due process?

The conclusive presumption, bars theadmission of contrary evidence as longas such presumption is based on humanexperience or there is a rationalconnection between the fact proved andthe fact ultimately presumed therefrom.

There are instances when the need forexpeditious action will justify omission ofthese requisites, as in the summaryabatement of a nuisance per se, like amad dog on the loose, which may bekilled on sight because of the immediatedanger it poses to the safety and lives ofthe people.

Pornographic materials, contaminatedmeat and narcotic drugs are inherentlypernicious and may be summarilydestroyed.

The passport of a person sought for acriminal offense may be cancelledwithout hearing, to compel his return tothe country he has fled.

Filthy restaurants may be summarily padlockedin the interest of the public health and bawdyhouses to protect the public morals.

In such instances, previous judicial hearing maybe omitted without violation of due process inview of: 1) the nature of the property involved or


7/50


2) the urgency of the need to protect the generalwelfare from a clear and present danger. (Ynotv. IAC)

Q: What is substantive due process?A: Substantive due process, asks whether thegovernment has an adequate reason for takingaway a persons life, liberty, or property. In otherwords, substantive due process looks to whetherthere is a sufficient justif ication for thegovernments action.

Q: What is the scope of substantive dueprocess?

A:1. Substantive due process is an

aspect of due process which servesas a restriction on the law-makingand rule-making power of thegovernment.

2. The law itself, not merely theprocedures by which the law wouldbe enforced, should be fair,

reasonable, and just.

Q: What are the requisites of substantive dueprocess?

A:1. Lawful object i.e. the interests of the

public in general (as distinguished fromthose of a particular class) require theintervention of the State, and

2. Lawful means i.e. means employed arereasonably necessary for theaccomplishment of the purpose and notunduly oppressive on individuals.

Q: What is the Void for Vagueness doctrine?A: An act is vague when it lacks comprehensiblestandards that men of common intelligence mustnecessarily guess at its common meaning anddiffer as to its application

Q: When is a statute repugnant to theconstitution under the void for vaguenessdoctrine?

A:1. It violates due process for failure to

accord persons, especially the partiestargeted by it, fair notice of what conductto avoid.

2. It leaves law enforcers an unbridleddiscretion

Q: What is the overbreadth doctrine?A: A governmental purpose may not be achievedby means which sweep unnecessarily broadlyand thereby invade the area of protectedfreedoms. "A law is facially invalid if men of

common intelligence must necessarily guess atits meaning and differ as to its application."

1. Claims of facial overbreadth areentertained in cases involving statuteswhich by their terms seek to regulateonly spoken words. Such claims havebeen curtailed when invoked againstordinary criminal laws that are sought tobe applied to protected conduct.

2. A facial challenge using the overbreadthdoctrine will require the Court toexamine PP 1017 and pinpoint its flawsand defects, not on the basis of itsactual operation to petitioners, but onthe assumption or prediction that its veryexistence may cause others not beforethe Court to refrain from constitutionallyprotected speech or expression.

3. Also, the challenger must establish thatthere can be no instance when the

assailed law may be valid. (David v.Arroyo)

Q: What is the scope of procedural dueprocess?

A: Procedural due process is that aspect of dueprocess which serves as a restriction on actionsof judicial and quasi-judicial agencies of thegovernment. It refers to the method or mannerby which a law is enforced.

Q: What are the types of Judicial Dueprocess?

A: Civil Due Process and Criminal Due Process

Q: What is Civil due process?A:

1. An impartial court of tribunal clothed withjudicial power to hear and determine thematter before it.

2. Jurisdiction must be lawfully acquiredover the person of the defendant andover the property subject matter of theproceeding

3. The defendant must be given anopportunity to be heard

4. Judgment must be rendered upon lawfulhearing and must clearly explain itsfactual and legal bases... (Sec. 14, Art.8, 1987 Constitution; Banco Espaol-Filipino vs Palanca)


8/50


Q: What is criminal due process?A:

1. Accused is heard by a court of competent jurisdiction;

2. Accused is proceeded against under theorderly process of law;

3. Accused is given notice and opportunityto be heard; (People v. Vera)

4. Judgment rendered is within theauthority of a constitutional law. (Mejia v.Pamaran)

Q: What is administrative due process?A:

1. Right to a hearing to present own caseand submit evidence in support thereof.

2. Tribunal must consider the evidencepresented,

3. Decision rendered must have a basis4. Evidence which supports the finding or

conclusion is substantial (such relevant

evidence as a reasonable mind mustaccept as adequate to support aconclusion).

5. The decision must be rendered on theevidence presented at the hearing or atleast contained in the record anddisclosed to the parties affected.

6. The tribunal or any of its judges must acton its or his own independentconsideration of the law and facts of thecontroversy, and not simply accept theviews of a subordinate in arriving at adecision.

7. The tribunal should in all controversialquestions render its decision in such amanner that the parties to theproceeding can know the various issuesinvolved, and the reasons for thedecision rendered. (Ang Tibay case)

III. Equal Protection Clause

Q: What is equal protection clause?A:

Equal protection requires that all

persons or things similarly situatedshould be treated alike, both as to rightsconferred and responsibilities imposed.

Similar subjects, in other words, shouldnot be treated differently, so as to giveundue favor to some and unjustlydiscriminate against others.

The guarantee means that no person orclass of persons shall be denied the

same protection of laws which isenjoyed by other persons or otherclasses in like circumstances.

Q: What is the scope of the equal protectionclause?

A:

Natural and juridical Persons (the equalprotection clause extends to artificialpersons but only insofar as theirproperty is concerned.)

A corporation as an artificial person isprotected under the Bill of Rights againstdenial of due process, and it enjoys theequal protection of the law. (Smith, Bell& Co., vs. Natividad, 1919).

o A corporation is also protectedagainst unreasonable searchesand seizures. (See Stonehill vs.Diokno, 1967.)

o It can only be proceededagainst by due process of law,and is protected against

unlawful discrimination. (Bache& Co. vs. Ruiz, 1971)

Q: What are the requisites of a validclassification?

A:1. It must rest on substantial distinctions;2. It must be germane to the purpose of

the law;3. It must not be limited to existing

conditions only.4. It must apply equally to all members of

the same class. (People v. Cayat)

Q: How does the equal protection clauseapply to aliens?

A:General rule: The general rule is that alegislative act may not validly classify thecitizens of the State on the basis of their origin,race or parentage.

Exceptions:1. In times of great and imminent danger,

such as a threatened invasion or war,such a classification is permitted by the

Constitution when the facts so warrant(e.g. discriminatory legislation againstJapanese citizens during WWII).

2. The political rights of aliens do not enjoythe same protection as that of citizens.

3. Statutes may validly limit to citizensexclusively the enjoyment of rights orprivileges connected with the publicdomain, the public works, or the naturalresources of the State.


9/50


4. The rights and interests of the state inthese things are not simply political butalso proprietary in nature; and so thecitizens may lawfully be givenpreference over 'aliens in their use orenjoyment.

Q: How does the equal protection clauseapply to Filipino female domestics workingabroad?

A: They are a class by themselves because ofthe special risks to which their class wasexposed (Phil Association of Service Exportersvs. Drilon).

Q: How does the equal protection clauseapply to land-based v. sea-based Filipinooverseas workers?

A: There is dissimilarity as to work environment,safety, danger to life and limb, and accessibilityto social, civil and spiritual activities (Conferenceof Maritime Manning Agencies vs. POEA).

Q: How does the equal protection clauseapply to the disqualification for electiveoffice?

A: Disqualification from running in the sameelective office from which he retired of a retiredelective provincial/municipal official who hasreceived payment of retirement benefits and whoshall have been 65 y.o. at the commencement ofthe term of office to which he seeks to beelected is valid (Dumlao vs. Comelec).

Q: How does the equal protection clauseapply to the office of the ombudsman?

A: Allowing it to start an investigation based onan anonymous letter does not violate EP clause.The Office of the Ombudsman is different fromother investigatory and prosecutory agencies ofgovernment because those subject to its

jurisdiction are public officials who, throughofficial pressure and influence, can quash, delayor dismiss investigations against them (Almontevs. Vasquez).

Q: How does the equal protection clauseapply to print v. broadcast media?

A: There are substantial distinctions between thetwo to warrant their different treatment under BP881 (Telecommunications and Broadcast

Attorneys of the Phil vs. COMELEC).

Q: What are the standards of JudicialReview?

A:1. Rational Basis Test

The classification should bear areasonable relation to government'spurpose.

Important when there is no plausibledifference between the disadvantagedclass and those not disadvantaged.

Also important when the governmentattaches a morally irrelevant andnegative significance to a differencebetween the advantaged and thedisadvantaged.

2. Strict Scrutiny Test

Requires the government to show anoverriding or compelling governmentinterest so great that it justifies thelimitation of fundamental constitutionalrights (the courts make the decision ofWON the purpose of the law makes theclassification necessary).

Applied also when the classification hasa "suspect" basis (Suspect Classes classes subject to such a history ofpurposeful unequal treatment orrelegated to such a position of politicalpowerlessness as to commandextraordinary protection from themajoritarian political process.)

3. Intensified Means Test

The Court accepts the articulatedpurpose of the legislation but it shouldclosely scrutinize the relationshipbetween the classification and thepurpose based on a spectrum ofstandards, by gauging the extent towhich constitutionally guaranteed rightsdepend upon the affected individualinterest.

The balancing test or the equality test isused.

Applicable to certain sensitive but notsuspect classes; certain important butnot fundamental interest.

Q: What is the Immediate Scrutiny test?A: Immediate Scrutiny Test:

White Light Corporation v. City of Manila (2009):A third standard, denominated as heightened orimmediate scrutiny, was later adopted by the


10/50


U.S. Supreme Court for evaluatingclassifications based on gender and legitimacy.Immediate scrutiny was adopted by the U.S.Supreme Court in Craig. While the test mayhave first been articulated in equal protectionanalysis, it has in the United States since beenapplied in all substantive due process cases aswell.

IV. Freedom of Expression

Q: What is the concept of freedom fromcensorship or Prior restraint?

A:Censorship conditions the exercise of freedomof expression upon the prior approval of thegovernment.

The censor serves therefore as the political,moral, social and artistic arbiter for the people,usually applying only his own subjectivestandards in determining what is good and

whats not.

Q: What are the general rules on priorrestraint?

A:1. Any system of prior restraints of

expression comes to the Court bearing aheavy presumption against itsconstitutionality, giving the governmenta heavy burden to show justification forthe imposition of such restraint. (NewYork v. United States (1971)

2. There need not be total suppression.Even restriction of circulation constitutescensorship (Grosjean vs. AmericanPress Co. 297 US 233)

Q: What is the concept of freedom fromSubsequent punishment?

A:Freedom of speech includes freedom afterspeech. Without this assurance, the citizenwould hesitate to speak for fear he might beprovoking the vengeance of the officials he hascriticized (chilling effect).

If criticism is not to be conditioned on thegovernments consent, then neither should it besubject to the governments subsequentchastisement.

Q: What is the dangerous tendency test?A:

Cabansag v. Fernandez:If the words uttered create a dangeroustendency of an evil which the State hasthe right to prevent, then such words arepunishable.

People v. Perez, (45 Phil 599):It is sufficient if the natural tendency andthe probable effect of the utterance wereto bring about the substantive evil thatthe legislative body seeks to prevent.

Q: What is the clear and present danger test?A:

Schenck v. United States (1919):The question in every case is whetherthe words used are used in suchcircumstances and are of such a natureas to create a clear and present dangerthat they will bring about the substantive

evils that Congress has a right toprevent. It is a question of proximity anddegree.

Gonzales v. COMELEC, (27 SCRA835):This rule requires that the dangercreated must not only be clear andpresent but also traceable to the ideasexpressed

Note: This test has been adopted by thePhilippine SC lock, stock and barrel and

is the test most applied to cases re:freedom of expression.

Q: What is the balancing of interest test?A:

American Communications Assoc. v.Douds, (339 US 282):When a particular conduct is regulatedin the interest of public order, and theregulation results in an indirect,conditional and partial abridgement ofspeech, the duty of the courts is todetermine which of the two conflicting

interests demands greater protection.

Gonzales v. Comelec:The test is applied when two legitimatevalues not involving national securitycrimes compete.

Q: What is the direct incitement test?A: The American case of Brandenburg v. Ohio(395 U.S. 444) states that the constitutional


11/50


guarantees of free speech and free press do notpermit a State to forbid or proscribe advocacy ofthe use of force or of law violation except wheresuch advocacy is directed to inciting orproducing imminent lawless action and is likelyto incite or produce such action.

Political discussion even among those opposedto the present administration is within theprotective clause of freedom of speech andexpression. The same cannot be construed assubversive activities per se or as evidence ofmembership in a subversive organization.

Q: What is the Grave-but-improbable dangertest?

A:Grave-But-Improbable Danger Test: Todetermine the clear and present danger of theutterances bringing about the evil within whichthat legislature has the power to punish, "In eachcase [courts] must ask whether the gravity of the

'evil,' discounted by its improbability, justifiessuch invasion of free speech as is necessary toavoid the danger." In this case, an attempt tooverthrow the Government by force is asufficient evil for Congress to prevent. It is theexistence of the conspiracy which creates thedanger.

V. Freedom of Association

Q: Is the freedom to associate absolute?A: No. (People v. Ferrer)

VI. Freedom of Religion and the Non-Establishment Clause

Q: What is the concept of non-establishmentclause?

A: The clause prohibits excessive governmententanglement with, endorsement or disapprovalof religion (Victoriano v. Elizalde Rope WorkersUnion 1974, Lynch v. Donnelly, 465 US 668(1984) O'Connor, J., concurring); AlleghenyCounty v. Greater Pittsburg ACLU 1989).

Q: What is the basis of non-establishmentclause?

A: Rooted in the separation of Church and State(Sec. 2(5), Art. 9-C; Sec. 5(2), Sec. 29(2) Art. 6,1987 Consti).

Q: What are the acts permitted by theEstablishment clause?

A:Tax exemption, operation of sectarian schools,religious instruction in public schools, public aidto religion, postage stamps depicting Philippinesas a site of a significant religious event (Aglipayv. Ruiz)

Sec. 28 (3), Art. 6. Charitable institutions,churches and personages or conventsappurtenant thereto, mosques, non-profitcemeteries, and all lands, buildings, andimprovements, actually, directly, and exclusivelyused for religious, charitable, or educationalpurposes shall be exempt from taxation.

Sec. 4(2), Art. 6. Educational institutions, otherthan those established by religious groups andmission boards, shall be owned solely bycitizens of the Philippines or corporations orassociations at least sixty per centum of thecapital of which is owned by such citizens

Sec. 3(3), Art. 14. At the option expressed inwriting by the parents or guardians, religion shallbe allowed to be taught to their children or wardsin public elementary and high schools within theregular class hours by instructors designated orapproved by the religious authorities of thereligion to which the children or wards belong,without additional cost to the Government.

Sec. 29 (2), Art. 6. No public money or propertyshall be appropriated, applied, paid, oremployed, directly or indirectly, for the use,

benefit, or support of any sect, church,denomination, sectarian institution, or system ofreligion, or of any priest, preacher, minister,other religious teacher, or dignitary as such,except when such priest, preacher, minister, ordignitary is assigned to the armed forces, or toany penal institution, or government orphanageor leprosarium.

Q: What is the lemon test?A:

Lemon vs. Kurtzman, (403 U.S. 602):Lemon Test

1. Statute must have a secular legislativepurpose.

2. Primary effect must be one that neitheradvances nor inhibits religion.

3. Must not foster excessiveentanglement between government andreligion.


12/50


Q: What is the benevolent neutrality stance?A:Compelling State Interest Test (from abenevolent neutrality stance):

1. Determine sincerity and centrality ofclaimed religious belief and practice

2. Compelling state interest must overridereligious belief and practice3. The means adopted in pursuing its

interest is the least restrictive to religiousfreedom

Estrada v Escritor, (2003):Although themorality contemplated by laws is secular,benevolent neutrality could allow foraccommodation of morality based onreligion, provided it does not offendcompelling state interests.

Q: what is the Conscientious Objector Test?A:

1. Conscientiously opposed to war in any

form.2. Opposition is based upon religious

training and belief.3. Objection is sincere. (See Cassious

Clay vs US)

Note: Meaning of religious training and belief:WON it is sincere and meaningful and occupiesa place in the life of its possessor parallel to thatfilled by the orthodox belief in God. (US vs.Seeger, 380 US 163). This expands themeaning of religion to cover not just recognizedsects but also personal beliefs akin to traditional

religion.

VI. Privacy

Q: When is intrusion allowed?A:

1. By lawful order of the court2. When public safety or public order

requires otherwise, as may be providedby law

Q: What are the forms of correspondence

covered by this rule?A:

1. letters2. messages3. telephone calls4. telegrams, and the like (BERNAS)

Q: What must the contents of a lawful orderof the court?

A:1. the identity of the person/persons whose

communications, conversations,discussions, or spoken words are to beoverheard, intercepted, or recorded and, inthe case of telegraphic or telephoniccommunications, the telegraph line or thetelephone number involved and its location;

2. the identity of the peace officer authorized tooverhear, intercept, or record thecommunications, conversations,discussions, or spoken words

3. the offense/offenses committed or sought tobe prevented

4. The period of the authorization. Theauthorization shall be effective for the periodspecified in the order which shall not exceedsixty (60) days from the date of issuance ofthe order, unless extended or renewed bythe court upon being satisfied that suchextension or renewal is in the public interest.

VII. Liberty of Abode

Q: What is liberty of abode?A:Rubi vs. Provincial Board (1919):"Liberty" asunderstood in democracies, is not license; it is"Liberty regulated by law."

The right of the individual is necessarily subjectto reasonable restraint by general law for thecommon good. The Liberty of the citizens maybe restrained in the interest of the public health,or of the public order and safety, or otherwisewithin the proper scope of the police power.

None of the rights of the citizen can be takenaway except by due process of law

Q: Is the right to travel absolute?A: No.

Manotok vs. CA (1986):RIGHT NOT ABSOLUTE: The ConstitutionalRight to Travel under Sec. 5, Art. IV of the 1973Constitution is not an Absolute Right, and can

only be impaired upon lawful order of the court,or when necessary in the interest of nationalsecurity, public safety or public health. Releasingthe petitioner on bail and that as a condition hemake himself available at all times is a validrestriction on his right to travel, as to allow him totravel, especially abroad, will make the order ofthe court nugatory, as the court's jurisdictioncannot extend beyond the Philippines.


13/50


Q: What is the right to return to one'scountry?

A:Marcos vs. Manglapus (1989):The threats to the government, to which thereturn of the Marcoses has been viewed toprovide a catalytic effect, have not been shownto have ceased. The President has unstatedresidual powers which are implied from the grantof executive power and which are necessary forher to comply with her duties under theConstitution. One of her duties is to protect andpromote the interest and welfare of the people.Her decision to bar the return of the Marcosesand subsequently, the remains of Mr. Marcos atthe present time and under presentcircumstances is in compliance with thisbounden duty.

VIII. Searches and Seizures

Q: What are the requisites of a valid search

warrant?A:1. Existence of probable cause2. Determination of probable causepersonally by the judge.3. After personal examination under oath

or affirmation of the complainant and thewitnesses he may produce.

4. On the basis of their personalknowledge of the facts they aretestifying to.

5. The warrant must describe particularlythe place to be searched and thepersons or things to be seized.

Q: What is probable cause?A:

1. Such facts and circumstances;2. which would lead a reasonably discreet

and prudent man to believe3. that an offense has been committed and4. That the objects sought in connection

with the offense are in the place soughtto be searched. (Burgos vs. Chief ofStaff 1984)

Q: What are the rules in the personal

examination requirements?A: It must be in the form of searching questionsand answers, in writing and under oath (Sec. 6Rule 126, ROC)

Mere affidavits of the complainant andhis witnesses are thus not sufficient.

The examining Judge has to takedepositions in writing of the complainant

and the witnesses he may produce andattach them to the record.

Such written deposition is necessary inorder that the Judge may be able toproperly determine the existence or non-existence of the probable cause, to holdliable for perjury the person giving it if itwill be found later that his declarationsare false

It is axiomatic that the examination mustbe probing and exhaustive, not merelyroutinary or pro-forma, if the claimed probable cause isto be established.

The examining magistrate must notsimply rehash the contents of theaffidavit but must make his own inquiryon the intent and justification of theapplication. (Roan v. Gonzales, 1984)

Q: What is a general search warrant?A: One that (1) does not describe withparticularity the things subject of the search and

seizure, and (2) where probable cause has notbeen properly established. It is a void warrant.(Nolasco vs. Pao, 1985)

Q: What are the exceptions to a generalsearch warrant as to its invalidation?

A: General descriptions will not invalidate theentire warrant if other items have beenparticularly described. (Uy v. BIR, 2000)

Q: How must search be conducted?A: (Sec. 7, Rule 126, ROC)

in the presence of a lawful occupant

thereof or any member of his family, OR if occupant or members of the family are

absent: in the presence of 2 witnessesof

o sufficient ageo discretiono residing in the same locality

Force may be used in entering adwelling if justified by Rule 126 ROC.

People vs. Salanguit: FORCIBLE ENTRYJUSTIFIED: Occupants of the house refused toopen the door despite the fact that the searching

party knocked several times, and the agents sawsuspicious movements of the people inside thehouse.

People vs. Benny Go (2003): UNLAWFULSEARCH: Police officers arrived at appellantsresidence and side-swiped (sinagi) appellantscar (which was parked outside) to gain entry intothe house. Appellants son, who is the only onepresent in the house, opened the door and was


14/50


immediately handcuffed to a chair after beinginformed that they are policemen with a warrantto search the premises.

Q: When is a warrantless search valid?A:General rule: Areas within the reach and controlof the accused are the permissible areas ofsearch for both stop-and-frisk and search-incident-to-a-valid-arrest (Espano vs. CA;People vs. Cubcubin 2001).

1. Search is an Incident to a Lawful Arrest2. Search of Moving Vehicles3. Plain View Doctrine4. Stop and Frisk Searches5. Valid Express Waiver6. Customs search7. Visual Search at Checkpoints8. Conduct of Areal Target Zoning and

saturation drive9. Exigent and Emergency Circumstances

Q: What are the requisites of a search

incident to a lawful arrest?A:

Item to be searched was within thearresters custody;

Search was contemporaneous with thearrest

Q: Why is a search of moving vehicles anexception the rule that a search must beaccompanied by a valid search warrant?

A: Securing SW is not practicable since thevehicle can be quickly moved out of the localityor jurisdiction in which the warrant must be

sought (Papa v. Mago 1968)

Q: What are the requisites of the Plain viewdoctrine?

A:1. Prior valid intrusion into a place;2. Evidence:

a. inadvertently discoveredb. by police who had the right to be

where they were;3. Evidence must be immediately apparent

andNoticed without further search

Q: What is the rule for a stop and frisk searchto be valid?

A: There should be a genuine reason to stop-and-frisk in the light of the police officersexperience and surrounding conditions towarrant a belief that the person detained hasweapons concealed. (Malacat vs CA 1997, citingTerry vs. Ohio)

Q: What are the requisites for a valid expresswaiver of a search warrant?

A:People v. Peralta:

Must appear that right exists;

Person involved had actual/ constructiveknowledge of the existence of suchright;

Said person had an actual interest torelinquish the right;

Waiver is limited only to the arrest;

Waiver does not extend to search madeas an incident thereto, or to an ysubsequent seizure of evidence found inthe search.

IX. Requirements for Fair Procedure

Q: What is the nature of the right under Art.III Sec. 2?

A: Personal

It may be invoked only by the person entitled toit. (Stonehill vs. Diokno)

It may be waived expressly or impliedly only bythe person whose right is invaded, not by onewho is not duly authorized to effect such waiver.(People vs. Damaso 1992)

B. Directed Against the Government & itsAgencies (State Action Requirement)

The right cannot be set up against actscommitted by private individuals (People v.

Marti)

Q: What is the scope of the right under Art.III. Sec. 2?

A:Natural Persons

It protects all persons including aliens (QuaChee Gan vs. Deportation Board 1963).

B. Artificial Persons

Artificial persons are protected to a limitedextent. (Bache & Co. Inc vs. Ruiz 1971) Theopening of their account books is not protected,by virtue of police and taxing powers of theState.

Q: What are the requisites for the issuance ofa valid warrant of arrest?

A:1. Existence of probable cause:


15/50


Such facts and circumstances which wouldlead a reasonably discreet and prudentmean to believe that an offense has beencommitted by the person sought to bearrested. (Webb vs. De Leon 1995)

2. Determination of probable causepersonally by the judge.

3. On the basis of their personalknowledge of the facts they aretestifying to.

4. The arrest warrant must describeparticularly the person to be seized.

How done:i. By stating the name of the person to

be arrested.ii. If not known, then a John Doe

warrant may be issued, with somedescription persona that will enablethe officer to identify the accused.

Q: How is probable cause determined?A: Personally by a judge.

1. Personally evaluate the report andsupporting documents submitted by thefiscal regarding the existence ofprobable cause and, on the basisthereof, issue the arrest warrant; OR

2. If he finds no probable cause, he maydisregard the prosecutors report andrequire the submission of supportingaffidavits of witnesses to aid him inarriving at a conclusion as to the

existence of probable cause (Cruz v.Judge Areola 2002).

Beltran v. Makasiar (1988):

What the Constitution underscores is theexclusive and personal responsibility of theissuing judge to satisfy himself of theexistence of probable cause.

In satisfying himself of the existence ofprobable cause for the issuance of a warrantof arrest, the judge is not required topersonally examine the complainant and hiswitnesses.

Following established doctrine and procedure,he shall:

1. Personally evaluate the report and thesupporting documents submitted by thefiscal regarding the existence ofprobable cause and, on the basisthereof, issue a warrant of arrest; or

2. If he finds no probable cause:

i. He may disregard the fiscal's reportand

ii. Require the submission of supporting affidavits of witnesses toaid him in arriving at a conclusion asto the existence of probable cause.

Q: When is a John Doe Warrant considered ageneral warrant, thus void?

A:Pangandaman vs. Casar (1988):

JOHN DOE WARRANT: Warrants issuedagainst 50 John Does, none of whom thewitnesses could identify, were considered asgeneral warrants and thus void.

Q: When is a warrantless arrest valid?A:1. When, in his presence, the person to be

arrested has committed, is actuallycommitting, or is attempting to commit anoffense;

2. When an offense has just been committedand he has probable cause to believe basedon personal knowledge of facts or circumstances that the person to be arrestedhas committed it;

3. When the person to be arrested is a prisonerwho has escaped from a penalestablishment or place where he is servingfinal judgment or is temporarily confinedwhile his case is pending, or has escapedwhile being transferred from one

confinement to another.

Q: What is hot pursuit in the case of awarrantless arrest?

A:People vs. De Lara (1994): The arrest of theaccused inside his house following hot pursuit ofthe person who committed the offense inflagrante was held valid.

Q: What is buy-bust operation in the case ofa warrantless arrest?

A:People vs. Hindoy (2001): BUY-BUST: A buy-bust operation is a valid in flagrante arrest. Thesubsequent search of the person arrested andthe premises within his immediate control is validas an incident to a lawful arrest.

People vs. Rodrigueza: EXCEPTION TO BUY-BUST. Instead of arresting the suspect afterthe sale in a buy-bust op, the officerreturned to the police headquarters and filed


16/50


his report. It was only in the evening that he,without warrant, arrested the suspect at hishouse where dried marijuana leaves werefound and seized. This is an unlawful arrest.

X. Rights during Trial

Q: What are the rights of the accused duringtrial?

A:1. Presumption of Innocence2. Right to be Heard Personally or by

Counsel3. Right to be Informed of Nature and

Cause of Accusation4. Right to speedy, impartial and public trial5. Right of Confrontation6. Right to Compulsory Processes7. Right Against self-incrimination

Q: What is the presumption of innocence?A:

People v. Dramavo, (1971): The requirement ofproof beyond reasonable doubt is anecessary corollary of

the constitutional right to be presumed innocent.

Alejandro v. Pepito, (1980): The accused cannotpresent evidence before the prosecutiondoes so, even if the accused pleads guilty. Itviolates the presumption of innocence.

People v. Acuram: The presumption of regularity(in official duties) cannot by itself prevail over thepresumption of innocence of the accused. Butwhere it is not the sole basis for conviction, thepresumption of regularity of performance ofofficial functions may prevail over theconstitutional presumption of innocence.

Q: What is the Equipoise Rule?A:Corpus v. People: Where the evidence adducedby the parties are evenly balanced, theconstitutional presumption of innocence shouldtilt the balance in favor of the accused.

Q: What are the elements of the right tocounsel?

A:1. Courts duty to inform the accused of

right to counsel before being arraigned;2. It must ask him if he desires the services

of counsel;3. If he does, and is unable to get one, the

Court must give him one; if the accusedwishes to procure private counsel, theCourt must give him time to obtain one.

4. Where no lawyer is available, the Courtmay appoint any person resident of theprovince and of good repute for probityand ability.

Q: What is the right to be informed of thenature and cause of accusation?

A:Vera v. People: Procedural due process requiresthat the accused must be informed why he isbeing prosecuted and what charge he mustmeet.

Q: What is the right to speedy, impartial andpublic trial?

A:Art. III. Sec. 16: All persons shall have the rightto a speedy disposition of their cases before all

judicial, quasi-judicial, or administrative bodies.

Art. II. Sec. 3: Civilian authority is, at all times,supreme over the military. xxx

Olaguer v. Military Commission, (1987): Acivilian cannot be tried by a military court solong as the civil

courts are open and operating, even duringMartial Law.

Acevedo v. Sarmiento, (1970): Dismissal basedon the denial of the right to speedy trialamounts to an

acquittal.

Note: RA 8493 provides: a 30-day arraignmentwithin the filing of the information or from the

date the accused appeared before the court; trialshall commence 30 days from the arraignment,as fixed by the court. The entire trial period shallnot exceed 180 days, except as otherwiseauthorized by the SC Chief Justice.

Q: What is the right of confrontation?A: it is the basis of the right to cross-examination.

Q: What is the right to compulsoryprocesses?

A:1. Right to Secure Attendance of Witness2. Right to Production of Other Evidence

Q: When can a trial in absentia be done?A: Accused failed to appear for trial despitepostponement and notice to his bondsmen. TheCourt then allowed prosecution to presentevidence despite the fact that accused had notbeen arraigned. Petitioner was found guilty. Theissue is WON the court has jurisdiction. The


17/50


18/50


constitute some of the elements of the1st offense)

5. Offense that necessarily includes the 1stoffense (All the elements of the 1stconstitute some of the elements of the2nd offense)

Q: What are the exceptions?A:

1. The graver offense developed due to"supervening facts" arising from thesame act or omission constituting theformer charged.

2. The facts constituting the graver chargebecame known or were discovered onlyafter the filing of the former complaint orinformation.

3. The plea of guilty to the lesser offensewas made without the consent of thefiscal and the offended party.

Q: When is the defense of double jeopardyavailable?

A:1. Dismissal based on insufficiency of

evidence;2. Dismissal because of denial of right to

speedy trial;3. Accused is discharged to be a state

witness.

Q: When is the defense of double jeopardynot available?

A:Rule 117, Sec. 8, par 1. Provisional dismissal.

A case shall not be provisionally dismissed

except with the express consent of the accusedand with notice to the offended party.

When the case is dismissed other than on themerits, upon motion of the accused personally,or through counsel, such dismissal is regardedas with express consent of the accused, who istherefore deemed to have waived the right toplea double jeopardy.

Q: How is jeopardy terminated?A:

1. By acquittal2. By final conviction3. By dismissal without express consent of

accused4. By dismissal on the merits

XII. Police Power

Q: What is Police Power?A: It is the inherent and plenary power of thestate which enables it to prohibit all that is hurtfulto the comfort, safety and welfare of society.(Ermita-Malate Hotel and Motel Operators

Association Inc v. Mayor of Manila)

Q: What is the general scope of policepower?

A: The police power of the State," one court hassaid, "is a power coextensive with self-protection, and is not inaptly termed the 'law ofoverruling necessity.' It may be said to be thatinherent and plenary power in the State whichenables it to prohibit all things hurtful to thecomfort, safety and welfare of society." (Rubi v.Provincial Board)

It has been properly characterized as the mostessential, insistent and the least limitable of

powers, (Cf. Ichong v. Hernandez, (1957) 101Phil. 1155, at p. 1163) extending as it does to allthe great public needs. (Ermita-Malate Hoteland Motel Operators Association Inc v. Mayor ofManila)

The state, in order to promote the generalwelfare, may interfere with personal liberty, withproperty, and with business and occupations.Persons may be subjected to all kinds ofrestraints and burdens, in order to secure thegeneral comfort health and prosperity of thestate and to this fundamental aim of ourGovernment, the rights of the individual aresubordinated. (Ortigas & Co. Ltd. v. Feati Bank)

Scope of the police power: Since the Courtscannot foresee the needs and demands of publicinterest and welfare, they cannot delimitbeforehand the extent or scope of the policepower by which and through which the stateseeks to attain or achieve public interest andwelfare. (Ichong v. Fernandez)

Q: What is the specific scope of policepower?

A:

Public Health Public Morals

Public Safety

Public Welfare

Q: What are the limitations of Police Power?A: The legislative determination as to what is aproper exercise of its police powers is not final orconclusive, but is subject to the supervision of


19/50


the court. (US v. Toribio)

...this power is limited only by the Acts ofCongress and those fundamentals principleswhich lie at the foundation of all republican formsof government. An Act of the Legislature whichis obviously and undoubtedly foreign to any ofthe purposes of the police power and interfereswith the ordinary enjoyment of property would,without doubt, be held to be invalid. (Churchill v.Rafferty)

Q: Who may exercise police power?A:1. Legislature: Police power is lodged primarily

in the national legislature.

2. Executive: By virtue of a valid delegation oflegislative power, it may also be exercisedby the president, administrative bodies, andlawmaking bodies of LGUs (R.A. 7160, sec.16).

Q: Does MMDA have the authority to exercisepolice power?

A: No.

Rep. Act No. 7924 does not grant the MMDAwith police power, let alone legislative power,and that all its functions are administrative innature. (MMDA v. Bel-Air Village Association,G.R. No. 135962, March 27, 2000) BUT it is notprecluded and in fact is duty-bound toconfiscate and suspend or revoke drivers'licenses in the exercise of its mandate oftransport and traffic management, as well as the

administration and implementation of all trafficenforcement operations, traffic engineeringservices and traffic education programs.(Section 3(b), Rep. Act No. 7924) (MMDA v.Garin)

Q: What are the tests for the validity of theexercise of police power?

A:LAWFUL SUBJECT: Interest of the generalpublic (as distinguished from a particular classrequired exercise)

LAWFUL MEANS: Means employed isreasonably necessary for theaccomplishment of the purpose, and is

not unduly oppressive.

XIII. Eminent Domain

Q: What is eminent domain?A: It is the right of the government to take privateproperty with just compensation.

The power of eminent domain does not dependfor its existence on a specific grant in theconstitution. It is inherent in sovereignty and

exists in a sovereign state without anyrecognition of it in the constitution. Theprovisions found in most of the stateconstitutions relating to the taking of property forthe public use do not by implication grant thepower to the government of the state, but limit apower which would otherwise be without limit.(Visayan Refining Co. v. Camus)

Q: Who may exercise the power of eminentdomain?

A:Inherently:

Executive and legislative. the performance ofthe administrative acts necessary to the exerciseof the power of eminent domain in behalf of thestate is lodged by tradition in the Sovereign orother Chief Executive.

where the Legislature has expressly conferredthe authority to maintain expropriationproceedings upon the Chief Executive, the rightof the latter to proceed therein is clear.

"Once authority is given to exercise the powerof eminent domain, the matter ceases to bewholly legislative. The executive authorities maythen decide whether the power will be invoked

and to what extent." (Visayan Refining v.Camus)

By delegation:The general power to exercise the right ofeminent domain must not be confused with theright to exercise it in a particular case.

The power of the legislature to confer, uponmunicipal corporations and other entities withinthe State, general authority to exercise the rightof eminent domain cannot be questioned by thecourts, but that general authority of municipalities or entities must not be confusedwith the right to exercise it in particularinstances.The moment the municipal corporation or entityattempts to exercise the authority conferred, itmust comply with the conditions accompanyingthe authority. The necessity for conferring theauthority upon a municipal corporation toexercise the right of eminent domain isadmittedly within the power of the legislature.


20/50


But whether or not the municipal corporation orentity is exercising the right in a particular caseunder the conditions imposed by the generalauthority, is a question which the courts have theright to inquire into. (City of Manila v. ChineseCommunity of Manila)

Q: Can a private property already devoted topublic use be subject to expropriation by adelegate?

A: NO

Q: What are the general Requisites for theexercise of the power of eminent domain?

A:1. Taking of Private Property2. for Public Use,3. with Just Compensation, and4. Due Process.

Q: What are the specific requirements?A:LGUs, Sec. 19, Local Government Code:

1. Ordinance by a local legislature councilis enacted authorizing local chiefexecutive to exercise eminent domain,

2. for public use, purpose or welfare or forthe benefit of the poor and of thelandless,

3. Payment of just compensation,

4. Valid and definite offer has beenpreviously made to owner of theproperty sought to be expropriated but

such offer was not accepted(Municipality of Paraaque v VM Realty,1998)

Q: What is taking?A: A physical dispossession of the owner of hisactual property, or its use. It may includetrespass without actual eviction of owner, suchas the material impairment of value of property,or preventions of ordinary uses for which theproperty was intended.

Q: What are the requisites for a valid taking?A:

1. The expropriator must enter a privateproperty

2. Entry must be for more than amomentary period

3. Entry must be under warrant or color oflegal authority

4. Property must be devoted to public useor otherwise informally appropriated orinjuriously affected

5. Utilization of the property must be insuch a way as to oust the owner anddeprive him of beneficial enjoyment ofthe property (Republic v. Castelvi,1974)

Q: What happens if the expropriator doesnot use the property for a public purpose butsells it to a private user?

A: Property reverts back to the owner in feesimple. (Heirs of Moreno vs. Mactan-CebuInternational Airport 2005)

Q: Is the determination of Just compensationa judicial function?

A: YES.The Presidential Decrees merely serve as aguide or a factor for the courts in determiningamount of just compensation (which should be

the fair and full value of the property at time oftaking). The courts have the power and authorityto determine just compensation, independent ofwhat the decrees state, and thus may appointcommissioners to help in determining justcompensation. (EPZA v. Dulay)

Q: What is public use?A: The idea that "public use" means "use by thepublic" has been discarded. At present,whatever may be beneficially employed for thegeneral welfare satisfies the requirement ofpublic use. (Heirs of Juancho Ardona v. Reyes,

123 SCRA 220)

That only a few benefit from the expropriationdoes not diminish its public-use character,inasmuch as pubic use now includes the broadernotion of indirect public benefit or advantage(Filstream International v. CA, 284 SCRA 716)

Q: What is Just compensation?A:Province of Tayabas vs. Perez, (1938): It is the

just and complete equivalent of the loss whichthe owner of the thing expropriated has to sufferby reason of the expropriation.

Q: What is the basis of Just compensation?A:Fair Market Value:

Price fixed by a buyer (desirous but notcompelled to buy) and a seller (willingbut not compelled to sell).


21/50


Must include consequential damages(damages to other interest of the ownerattribute to the expropriation) and deductconsequential benefits (increase ofvalue of other interests attribute to newuse of the former property)

XIV. Taxation

Q: What is Taxation?A: It is the enforced proportional contributionsfrom persons and property, levied by the Stateby virtue of its sovereignty, for the support of thegovernment and for all public needs. It is asbroad as the purpose for which it is given.

Q: What are the purposes of taxation?A:

1. To raise revenue2. Tool for regulation3. Protection/power to keep alive

Q: Who may exercise the power to tax?A:1. legislature (primarily)2. local legislative bodies (Sec. 5 Art. 10,

1987 Consti)3. President (o a limited extent, when

granted delegated tariff powers underSec. 28 (2) Art. 6, 1987 Consti)

Q: What are the general limitations to thepower to tax?

A:

Power to tax exists for the generalwelfare; should be exercised only for apublic purpose

might be justified as for public purposeeven if the immediate beneficiaries areprivate individual

Tax should not be confiscatory.

If a tax measure is so unconscionableas to amount to confiscation of property,the Court will invalidate it. Butinvalidating a tax measure must beexercised with utmost caution,otherwise, the States power to legislatefor the public welfare might be seriouslycurtailed

Q: What are the specific limitations to thepower to tax?

A:

1. Uniformity of taxation: simplygeographical uniformity, meaning itoperates with the same force and effect

in every place where the subject of it isfound:

i. But does not prohibit classificationfor purposes of taxation

ii. Requisites:

standards used aresubstantial and not arbitrary

categorization is germane toachieve the legislativepurpose

the law applies, all thingsbeing equal to both presentand future conditions

applies equally to membersof the same class

2. Equal protection clause: taxes should beuniform (persons or things belonging tothe same class shall be taxed at thesame rate) and equitable (taxes shouldbe apportioned among the peopleaccording to their capacity to pay)

3. Progressive system of taxation:

The rate increases as the tax baseincreases

Basis is social justice

Taxation as an instrument for amore equitable distribution of wealth

4. Delegated tax legislation

Congress may delegate law-makingauthority when the constitution itselfspecifically authorizes it.

Q: What is the rule on taxation andprohibition against impairment of obligationsof contracts?

A:

Power of taxation may not be used toviolate the constitutional right of everyperson to be secured against anystatute that impairs the obligation ofcontracts;

But if the statute exempts a party fromany one class of taxes, the imposition ofa different tax is not an impairment of

the obligation of contracts

Q: What are tax exemptions?A:

1. A corollary power but must be for apublic purpose, uniform and equitableand in conformity with the equalprotection clause


22/50


2. Tax exemptions are granted gratuitouslyand may be revoked at will, except whenit was granted for valuable consideration

May either be constitutional orstatutory :

If statutory, it has to have beenpassed by majority of all themembers of Congress (Art. VI, sec.28 (4))

3. Constitutional exemptions (1987 CONST.,art. VI, sec. 28(3))

i. Educational institutions (bothprofit and non-profit)

Benefits redound tostudents

Only applied to propertytaxes not excise taxes

ii. Charitable institutions

Religious and charitableinstitutions giveconsiderable assistance tothe State in theimprovement of themorality of the people andthe care of the indigent andthe handicapped.

iii.Religious property

Q: What is double taxation?A: Occurs when additional taxes are laid on thesame subject by the same taxing jurisdictionduring the same taxing period for the samepurpose

Q: Is double taxation prohibited?A: No provision in the Constitution specifically

prohibiting double taxation, but will not beallowed if it violates equal protection clause.


23/50


LOCAL GOVERNMENTS

1. Did the Local Government Codewithdraw the jurisdiction of theOmbudsman to investigate illegal acts oflocal elective officials?

No. The Ombudsman and the Office of thePresident have concurrent jurisdiction to conduct

administrative investigations over local electiveofficials. The LGC did not withdraw the power ofthe Ombudsman under RA 6770. (Hagad v.Gozo-Dadole, 1993)

2. What are the qualifications of an electedpublic officer?

An elective local official must be a citizen of thePhilippines; a registered voter in the barangay,municipality, city, or province or, in the case of amember of the sangguniang panlalawigan,sangguniang panlungsod, or sanggunian bayan,the district where he intends to be elected; aresident therein for at least one (1) yearimmediately preceding the day of the election;and able to read and write Filipino or any otherlocal language or dialect.

The following are the age requirements:

Candidates for the position of governor, vice-governor or member of the sangguniangpanlalawigan, or Mayor, vice-mayor or memberof the sangguniang panlungsod of highlyurbanized cities must be at least twenty-three(23) years of age on election day.

Candidates for the position of Mayor or vice-mayor of independent component cities,component cities, or municipalities must be atleast twenty-one (21) years of age on electionday.

Candidates for the position of member of thesangguniang panlungsod or sangguniang bayanmust be at least eighteen (18) years of age onelection day.

Candidates for the position of punong barangay

or member of the sangguniang barangay mustbe at least eighteen (18) years of age onelection day.

Candidates for the sangguniang kabataan mustbe at least fifteen (15) years of age but not morethan twenty-one (21) years of age on electionday. (Sec 39, LGC)

3. What are the disqualifications?

The following persons are disqualified fromrunning for any elective local position:

(a) Those sentenced by final judgmentfor an offense involving moralturpitude or for an offensepunishable by one (1) year or moreof imprisonment, within two (2)years after serving sentence;

(b) Those removed from office as aresult of an administrative case;

(c) Those convicted by final judgmentfor violating the oath of allegiance tothe Republic;

(d) Those with dual citizenship;(e) Fugitives from justice in criminal or

nonpolitical cases here or abroad;(f) Permanent residents in a foreign

country or those who have acquiredthe right to reside abroad andcontinue to avail of the same right

after the effectivity of this Code; and(g) The insane or feeble-minded. (Sec.

40, LGC)

4. What is the second placer rule? Isthere an exception to this rule?

The ineligibility of a candidate receiving themajority of votes does not entitle the eligiblecandidate receiving the next highest number ofvotes to be declared winner.

The rule would be different if the electorate, fully

aware of a candidates disqualification so as tobring such awareness within the realm ofnotoriety, would nonetheless cast the votes infavor of the ineligible candidate. In such case,the electorate may be said to have waived thevalidity and efficacy of their votes by notoriouslyapplying their franchises or throwing away theirvotes in which case, the eligible candidateobtaining the next highest number of votes maybe deemed elected. (Labo v. COMELEC, 19920)

5. What are the requirements for the validityof an ordinance?

First, the subject matter of the ordinance shouldbe within the delegated legislative powersvested upon the LGU. Second, the requirementsof notice and publication should be met. Finally,it should comply with the following substantiverequirements:1. Not contrary to the Constitution and/or

statute2. Not unfair or oppressive


24/50


3. Must not be partial or discriminatory4. Not prohibit but may regulate trade5. General and consistent with public policy6. Not unreasonable (Tatel v. Virac)

6. Define the police power of LGUs.

The police power of the LGU is enshrined inSection 16 of the LGC, or the General WelfareClause. It provides: Every local government unitshall exercise the powers expressly granted,those necessarily implied therefrom, as well aspowers necessary, appropriate, or incidental forits efficient and effective governance, and thosewhich are essential to the promotion of thegeneral welfare. Within their respective territorial

jurisdictions, local government units shall ensureand support, among other things, thepreservation and enrichment of culture, promotehealth and safety, enhance the right of thepeople to a balanced ecology, encourage andsupport the development of appropriate and self-reliant scientific and technological capabilities,

improve public morals, enhance economicprosperity and social justice, promote fullemployment among their residents, maintainpeace and order, and preserve the comfort andconvenience of their inhabitants. (Sec 16, LGC)

7. Can elective officials be appointed togovernment positions?

No. The Constitution provides:

No elective official shall be eligible forappointment or designation in any

capacity to any public office or positionduring his tenure.

Unless otherwise allowed by law or bythe primary functions of his position, noappointive official shall hold any otheroffice or employment in the Governmentor any subdivision, agency or instrumentality thereof, includingGovernment-owned or controlledcorporations or their subsidiaries. (Sec.7, Art. 9B, Consti)

This was also addressed in the case of Flores v.Drilon, 1993.

8. Who shall exercise power in case ofpermanent vacancy?

The LGC provides that:

If a permanent vacancy occurs in the office ofthe governor or Mayor, the vice-governor or

vice-mayor concerned shall become thegovernor or Mayor. If a permanent vacancyoccurs in the offices of the governor, vice-governor, Mayor, or vice-mayor, the highestranking sanggunian member or, in case of hispermanent inability, the second highest rankingsanggunian member, shall become thegovernor, vice-governor, Mayor or vice-mayor,as the case may be. Subsequent vacancies inthe said office shall be filled automatically by theother sanggunian members according to theirranking as defined herein.

If a permanent vacancy occurs in the office ofthe punong barangay, the highest rankingsanggunian barangay member or, in case of hispermanent inability, the second highest rankingsanggunian member, shall become the punongbarangay.

A tie between or among the highest rankingsanggunian members shall be resolved by thedrawing of lots.

The successors as defined herein shall serveonly the unexpired terms of their predecessors.For purposes of this Chapter, a permanentvacancy arises when an elective local official (1)fills a higher vacant office, (2) refuses to assumeoffice, (3) fails to qualify, (4) dies, (5) is removedfrom office, (6) voluntarily resigns, or is (7)otherwise permanently incapacitated todischarge the functions of his office.For purposes of succession as provided in thisChapter, ranking in the sanggunian shall bedetermined on the basis of the proportion of

votes obtained by each winning candidate to thetotal number of registered voters in each districtin the immediately preceding local election.(SEC. 44, LGC)

Permanent vacancies in the sanggunian whereautomatic successions provided above do notapply shall be filled by appointment in thefollowing manner:

(1) The President, through the ExecutiveSecretary, in the case of the sangguniangpanlalawigan and the sangguniangpanlungsod of highly urbanized cities andindependent component cities;

(2) The governor, in the case of thesangguniang panlungsod of componentcities and the sangguniang bayan;

(3) The city or municipal Mayor, in the caseof sangguniang barangay, upon


25/50


recommendation of the sangguniangbarangay concerned.

Except for the sangguniang barangay, only thenominee of the political party under which thesanggunian member concerned had beenelected and whose elevation to the position nexthigher in rank created the last vacancy in thesanggunian shall be appointed in the mannerhereinabove provided. The appointee shall comefrom the same political party as that of thesanggunian member who caused the vacancyand shall serve the unexpired term of the vacantoffice. In the appointment herein mentioned, anomination and a certificate of membership ofthe appointee from the highest official of thepolitical party concerned are conditions sine quanon, and any appointment without suchnomination and certification shall be null andvoid ab initio and shall be a ground for administrative action against the officialresponsible therefor.

In case the permanent vacancy is caused by asanggunian member who does not belong to anypolitical party, the local chief executive shall,upon recommendation o;O7 of the sanggunianconcerned, appoint a qualified person to fill thevacancy.

In case of vacancy in the representation of theyouth and the barangay in the sanggunian, saidvacancy shall be filled automatically by theofficial next in rank of the organizationconcerned. (SEC. 45, LGC)

9. Who shall exercise powers in case oftemporary vacancy?

When the governor, city or municipal Mayor, orpunong barangay is temporarily incapacitated toperform his duties for physical or legal reasonssuch as, but not limited to, leave of absence,travel abroad, and suspension from office, thevice-governor, city or municipal vice-mayor, orthe highest ranking sangguniang barangaymember shall automatically exercise the powersand perform the duties and functions of the localchief executive concerned, except the power toappoint, suspend, or dismiss employees whichcan only be exercised if the period of temporaryincapacity exceeds thirty (30) working days.

Said temporary incapacity shall terminate uponsubmission to the appropriate sanggunian of awritten declaration by the local chief executiveconcerned that he has reported back to office. Incases where the temporary incapacity is due tolegal causes, the local chief executive

concerned shall also submit necessarydocuments showing that said legal causes nolonger exist.

When the incumbent local chief executive istraveling within the country but outside histerritorial jurisdiction for a period not exceedingthree (3) consecutive days, he may designate inwriting the officer-in-charge of the said office.Such authorization shall specify the powers andfunctions that the local official concerned shallexercise in the absence of the local chiefexecutive except the power to appoint, suspend,or dismiss employees.

In the event, however, that the local chiefexecutive concerned fails or refuses to issuesuch authorization, the vice-governor, the city ormunicipal vice-mayor, or the highest rankingsangguniang barangay member, as the casemay be, shall have the right to assume thepowers, duties, and functions of the said officeon the fourth (4th) day of absence of the said

local chief executive, subject to the limitationsprovided in subsection (c) hereof.

Except as provided above, the local chiefexecutive shall in no case authorize any localofficial to assume the powers, duties, andfunctions of the office, other than the vice-governor, the city or municipal vice- Mayor, orthe highest ranking sangguniang barangaymember, as the case may be. (SEC. 46, LGC)

10. What is the ground for recall?

The power of recall for loss of confidence shallbe exercised by the registered voters of a localgovernment unit to which the local electiveofficial subject to such recall belongs. (Sec. 69,LGC)

11. How is recall performed/done?

Recall may be initiated by the registered votersof the local government unit to which the localelective official subject to such recall belongs.

Recall of any elective provincial, city, municipal,or barangay official may be validly initiated uponpetition of at least twenty-five percent (25%) ofthe total number of registered voters in the localgovernment unit concerned during the election inwhich the local official sought to be recalled waselected.

(1) A written petition for recall duly signedbefore the election registrar or hisrepresentative, and in the presence of a


26/50


representative of the petitioner and arepresentative of the official sought to berecalled, and in a public place in the province,city, municipality, or barangay, as the case maybe, shall be filed with the Comelec through itsoffice in the local government unit concerned.The Comelec or its duly authorizedrepresentative shall cause the publication of thepetition in a public and conspicuous place for aperiod of not less than ten (10) days nor morethan twenty (20) days, for the purpose ofverifying the authenticity and genuineness of thepetition and the required percentage of voters.

(2) Upon the lapse of the aforesaid period, theComelec or its duly authorized representativeshall announce the acceptance of candidates tothe position and thereafter prepare the list ofcandidates which shall include the name of theofficial sought to be recalled. (Sec. 70, LGC)

Upon the filing of a valid resolution or petition forrecall with the appropriate local office of the

Comelec, the Commission or its duly authorizedrepresentative shall set the date of the electionon recall, which shall not be later than thirty (30)days after the filing of the resolution or petitionfor recall in the case of the barangay, city, ormunicipal officials, and forty-five (45) days in thecase of provincial officials. The official or officialssought to be recalled shall automatically beconsidered as duly registered candidate orcandidates to the pertinent positions and, likeother candidates, shall be entitled to be votedupon. (Sec. 71, LGC)

RA 9244 removed the Preparatory RecallAssembly as a mode of recall.

12. When is recall effective?

The recall of an elective local official shall beeffective only upon the election andproclamation of a successor in the person of thecandidate receiving the highest number of votescast during the election on recall. Should theofficial sought to be recalled receive the highestnumber of votes, confidence in him is therebyaffirmed, and he shall continue in office. (Sec.72, LGC)

13. What are the limitations on the exerciseof the General Welfare Clause?

They are:a. Territoriality. Police power can be

exercised only within its territorial

jurisdiction except for the protection ofwater supply;

b. The Equal Protection Clause. Thismeans that the interest of the public asagainst private interest is required;

c. The Due Process Clause. It simplymeans that the means employed arereasonably necessary for the attainmentof the purposes. It must not be undulyopporessive.

d. The exercise must not be contrary tolaw. Prohibited acts cannot be madelegal under the guise of regulation.(Albano,Political Law Reviewer, 2004,p. 765)

14. Should a governor who was previouslyremoved from office pending anadministrative case, but who wassubsequently reelected, be removed fromoffice?

No. Re-election renders the administrative

complaint against the local official moot andacademic. A public official cannot be removedfor administrative misconduct committed duringa prior term, since the re-election to officeoperates as a condonation of the officersprevious misconduct to the extent of cutting offthe right to remove him therefore. But this rule isapplicable only to administrative cases, not tocriminal cases. (Aguinaldo v. Santos, 1992)

15. What are the requisites of resignation?Of abandonment?

The requisites to constitute resignation are:1. Intention to relinquish a part of the term,2. Act of relinquishment, and3. Acceptance by the proper authority

The essential elements of abandonment are:1. Intent to abandon2. Overt act by which the intention is to be

carried into effect (Sangguniang Bayanof San Andres v. CA, 1998)

16. What is devolution in LGUs ?

upsolid2010politicallawpre week.unlocked

Documents