Category Archives: Constitutional Law

Constitutional Law Chapter V – The Right to Privacy

CONSTITUTIONAL LAW

CHAPTER V – THE RIGHT TO PRIVACY

Section 3. 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.

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

Read:

NOTE: Applicable provisions of the Human Security Act/Anti-Terrorism Law, Republic Act No. 9372, Approved on March 6, 2007 and effective on July 15, 2007 (This Law shall be automatically suspended one (1) month before and two (2) months after the holding of any election).

Please observe the procedure in obtaining the “The Warrant [or Order] of Surveillance”, not found in the 1987 Philippine Constitution.

SURVEILLANCE OF SUSPECTS AND INTERCEPTION AND RECORDING OF COMMUNICATIONS OF SUSPECTS OR CHARGED OF TERRORISM

Section 7. Surveillance of suspects and interception and recording of communications. The provisions of RA 4200 (Anti-Wiretapping Law) to the contrary notwithstanding, a police or law enforcement official and the members of his team may, upon a written order of the Court of Appeals, listen to, intercept and record, with the use of any mode, form or kind or type of electronic or other surveillance equipment or intercepting and tracking devices, or with the use of any other suitable ways or means for that purpose, any communication, message, conversation, discussion, or spoken or written words between members of a judicially declared and outlawed terrorist organization, association, or group of persons or of any person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism.

Provided, That surveillance, interception and recording of communications between lawyers and clients, doctors and patients, journalists and their sources and confidential business correspondence shall not be authorized.

Section 8. Formal Application for Judicial Authorization.- The written order of the authorizing division of the Court of Appeals to track down, tap, listen, intercept, and record communications, messages, conversations, discussions, or spoken or written words of any person suspected of the crime of terrorism or the crime of conspiracy to commit terrorism, shall only be granted by the authorizing division of the Court of Appeals UPON AN EX-PARTE written application of a police or law enforcement official who has been duly authorized in writing by the Anti-Terrorism Council created in Section 53 of this Act to file such ex-parte application, and upon examination under oath and affirmation of the applicant and the witnesses who may produce to establish:

  • That there is probable cause to believe based on personal knowledge of facts and circumstances that the said crime of terrorism or conspiracy to commit terrorism has been committed, or is being committed, or is about to be committed;
  • That there is probable cause to  believe based on personal knowledge of facts and circumstances that evidence which is essential to the conviction of any charged or suspected person for, or to the solution or prevention of any such crimes, will be obtained; and
  • That there is no other effective means readily available for acquiring such evidence.

Sec. 9. Classification and Contents of the Order of the Court. The written order granted by the authorizing division of the Court of Appeals as well as its order, if any, to extend or renew the same, the original application of the applicant, including his application to extend or renew, if any, and the written authorizations of the Anti-Terrorism Council shall be deemed and are hereby declared as classified information: Provided, That the person being surveilled or whose communications, letters, papers, messages, conversations, discussions, spoken or written words and effects have been monitored, listened to, bugged or recorded by law enforcement authorities has the right to be informed of the acts done by the law enforcement authorities in the premises or to challenge, if he or she intends to do so, the legality of the interference before the Court of Appeals which issued said written order. The written order of the authorizing division of the court of Appeals shall specify the following:

  • The identity, such as name and address, if known, of the charged of suspected persons whose communications, messages, conversations, discussions, or spoken or written words are to be tracked down, tapped, listened to, intercepted or recorded and, in case of radio, electronic, or telephone (whether wireless or otherwise) communications, messages, conversations, discussions, or spoken or written words, the electronic transmission systems or the telephone numbers to be tracked down, tapped, listened to, intercepted, and recorded and their locations if the person suspected of the crime of terrorism or conspiracy to commit terrorism is not fully known, such person shall be subject to continuous surveillance  provided there is reasonable ground to do so;
  • The identity (name and address, and the police or law enforcement organization) of the members of his team judicially authorized to track down, tap, listen to, intercept, and record the communications, messages, conversations, discussions, or spoken or written words;
  • The offense or offenses committed, or being committed, or sought to be prevented; and
  • The length of time which the authorization shall be used or carried out.

Section. 10. Effective Period of Judicial Authorization.  Any authorization granted by the authorizing division of the court of Appeals…shall only be effective for the length of time specified in the written order of the authorizing division of the Court of Appeals, which shall not exceed 30 days from the date of receipt of the written order of the authorizing division of the court of Appeals by the applicant police or law enforcement official.

The CA may extend or renew the said authorization for another non-extendible period, which shall not exceed 30 days from the expiration of the original period…The ex-parte application for renewal has been duly authorized by the Anti-terrorism Council in writing.

If no case is filed within the 30-day period, the applicant police or law enforcement official shall immediately notify the person subject  of the surveillance, interception, and recording of the termination of the said surveillance, interception and recording. [Penalty to be imposed on the police official who fails to inform the person subject of surveillance of the termination of the surveillance, monitoring, interception and recording shall be penalized to 10 years and 1 day to 12 years.

Section 15. Evidentiary Value of Deposited Materials. Any listened to, intercepted, and recorded communications, messages, conversations…WHICH HAVE BEEN SECURED IN VIOLATION OF THE PERTINENT PROVISIONS OF THIS ACT, SHALL ABSOLUTELY NOT BE ADMISSIBLE AND USABLE AS EVIDENCE AGAINST ANYBODY IN ANY JUDICIAL, QUASI-JUDICIAL, LEGISLATIVE, OR ADMINISTRATIVE INVESTIGATION, INQUIRY, PROCEEDING, OR HEARING.

JUDICIAL AUTHORIZATION TO EXAMINE BANK DEPOSITS, ACCOUNTS,  AND RECORDS OF SUSPECTED OR CHARGED TERRORISTS

Section 27. judicial authorization required to examine bank deposits, accounts and records.

The justices of CA designated as special court to handle anti-terrorism cases after satisfying themselves of the existence of probable cause in a hearing called for that purpose that:

  • A person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism;
  • Of a judicially declared and outlawed terrorist organization or group of persons;
  • Of a member of such judicially declared and outlawed organization, association or group of persons, may authorize in writing any police or law enforcement officer and the members of his team duly authorized in writing by the anti-terrorism council to:

1.            examine or cause the examination of, the deposits, placements, trust accounts, assets, and records in a bank or financial institution; and

2.            gather or cause the gathering of any relevant information about such deposits, placements, trust accounts, assets, and records from a bank or financial institution. The bank or financial institution shall not refuse to allow such examination or to provide the desired information, when so ordered by and served with the written order of the Court of Appeals.

Sec. 28. Application to examine deposits, accounts and records.

The written order of the CA authorizing the examination of bank deposits, placements, trust accounts, assets and records:

  • A person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism;
  • Of a judicially declared and outlawed terrorist organization or group of persons;
  • Of a member of such judicially declared and outlawed organization, association or group of persons, in a bank or financial institution-

-SHALL ONLY BE GRANTED BY THE AUTHORIZING DIVISION OF THE CA UPON AN EX-PARTE APPLICATION TO THAT EFFECT OF A POLICE OR LAW ENFORCEMENT OFFICIAL who has been duly authorized by the Anti-Terrorism Council to file such ex-parte application and upon examination under oath or affirmation of the applicant and his witnesses he may produce to establish the facts that will justify the need and urgency of examining and freezing the bank deposits, placements, trust accounts, assets and records:

  • Of A person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism;
  • Of a judicially declared and outlawed terrorist organization or group of persons;
  • Of a member of such judicially declared and outlawed organization, association or group of persons.

Section 35. Evidentiary value of deposited bank materials.- Any information, data, excerpts, summaries, notes, memoranda, work sheets, reports or documents acquired from the examination of the bank deposits, placements, trust accounts, assets and records of:

  • A person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism;
  • Of a judicially declared and outlawed terrorist organization or group of persons;
  • Of a member of such judicially declared and outlawed organization, association or group of persons,

-which have been secured in violation of the provisions of this Act, shall absolutely not be admissible and usable as evidence against anybody in any judicial, quasi-judicial, legislative or administrative investigation, inquiry, proceeding or hearing.

1. PEOPLE VS. CABALQUINTO, September 19, 2006, 502 SCRA 419

2. ZULUETA VS. CA, February 10, 1996

The wife forcibly opened the drawers at the clinic of her doctor-husband and took diaries, checks and greeting cards  of his alleged paramours. Thereafter, she used the same in their legal separation case. Said documents are inadmissible in evidence. This is so because the intimacies of husband and wife does not justify the breaking of cabinets to determine marital infidelity.

3. OPLE VS. TORRES, July 23, 1998

Puno, J.

Facts:

          On December 12, 1996, then President FIDEL V. RAMOS issued Administrative Order No. 308 entitled “ADOPTION OF A NATIONAL COMPUTERIZED IDENTIFICATION REFERENCE SYSTEM”.

The AO seeks to have all Filipino citizens and foreign residents to have a Population Reference Number (PRN) generated by the National Statistics Office (NSO) through the use of BIOMETRICS TECHNOLOGY .

The AO was questioned by Senator Ople on the following grounds:

1.            The establishment of the PRN without any law is an unconstitutional usurpation of the legislative powers of the Congress of the Philippines;

2.            The appropriation of public funds for the implementation of the said AO is unconstitutional since Congress has the exclusive authority to appropriate funds for such expenditure; and

3.            The AO violates  the citizen’s right to privacy protected by the Bill of Rights of the Constitution.

Held:

1.            The AO establishes a system of identification that is all-encompassing in scope, affects the life and liberty of every Filipino citizens and foreign residents and therefore, it is supposed to be a law passed by Congress that implements it, not by an Administrative Order issued by the President. Administrative Power,  which is supposed to be exercised by the President, is concerned with the work of applying policies and enforcing orders as determined by  proper governmental organs. It enables the President to fix a uniform standard of administrative efficiency and check the official conduct of his agents. Prescinding from the foregoing precepts, AO 308 involves a subject that is  not appropriate to be covered by an Administrative Order. An administrative order is an ordinance issued by the President which relates to specific aspects in the administrative operation of the government. It must be in harmony with the law and should be for the sole purpose of implementing the law and carrying out the legislative policy. The subject of AO 308 therefore is beyond the power of the President to issue and it is a usurpation of legislative power.

2.            The AO likewise violates the right to privacy since its main purpose is to provide a “common reference number to establish a linkage among concerned agencies through the use of BIOMETRICS TECHNOLOGY. Biometry is the science of the application of statistical methods to biological facts; a mathematical analysis of a biological data. It is the confirmation of an individual’s identity through a fingerprint, retinal scan, hand geometry or  facial features. Through the PRN, the government offices has the chance of building a huge and formidable information base through the electronic linkage of the files of every citizen. The data, however, may be gathered for gainful and useful government purposes; but the existence of this vast reservoir of personal information constitutes a covert invitation to misuse, a temptation that may be too great for some of our authorities to resist.

Further, the AO does not even tells us in clear and unequivocal terms how these informations gathered shall be handled. It does not provide who shall control and access the data and under what circumstances and for what purpose. These factors are essential to safeguard the privacy and guaranty the integrity of the information. The computer linkage gives other government agencies access to the information. YET, THERE ARE NO CONTROLS TO GUARD AGAINST LEAKAGE OF INFORMATIONS. WHEN THE ACCESS CODE OF THE CONTROL PROGRAMS OF THE PARTICULAR COMPUTER SYSTEM IS BROKEN, AN INTRUDER, WITHOUT FEAR OF SANCTION OR PENALTY, CAN MAKE USE OF THE DATA FOR WHATEVER PURPOSE, OR WORSE, MANIPULATE THE DATA STORED WITHIN THE SYSTEM.

AO No. 308 is unconstitutional since it falls short of assuring that personal information gathered about our people will be used only for specified purposes thereby violating the citizen’s right to privacy.

KILUSANG MAYO UNO VS. EXECUTIVE SECRETARY EDUARDO ERMITA, ET AL., April 19, 2006 & June 20, 2006

BAYAN MUNA VS. EXECUTIVE SECRETARY EDUARDO ERMITA, ET AL., April 19, 2006 & June 20, 2006

Carpio, J.

President Gloria Macapagal-Arroyo issued Presidential Proclamation No. 420 that mandates the Adoption of a Unified, Multi-purpose Identification System by all Government Agencies in the Executive Department. This is so despite the fact that the Supreme Court held in an En Banc decision in 1998 OPLE VS. EXECUTIVE SECRETARY RUBEN TORRES Administrative Order No. 308[National computerized Identification Reference System] issued by then President Fidel V. Ramos that the same is unconstitutional because “a national ID card system requires legislation because it creates a new national data collection and  card issuance system, where none existed before”. The Supreme Court likewise held that EO 308 as unconstitutional for it violates the citizen’s right to privacy.

Based on the Ople ruling, the petitioners claimed that Proclamation No. 420 is unconstitutional on two (2) grounds:

a.            usurpation of legislative powers; and

b.            it infringes on the citizen’s right to privacy

Held:

The said Executive Order No. 420 does not violate the citizen’s right to privacy since it does not require all the citizens to be issued a national ID as what happened in AO 308. Only those dealing or employed with the said government entities who are required to provide the required information for the issuance of the said ID.

CAMILO L. SABIO vs. GORDON, G.R. No. 174340,  October 17, 2006, 504 SCRA 704

Sandoval-Gutierrez, J.

The Facts:

On February 20, 2006, Senator Miriam Defensor Santiago introduced Philippine Senate Resolution No. 455 (Senate Res. No. 455),[1][4] “directing an inquiry in aid of legislation on the anomalous losses incurred by the Philippines Overseas Telecommunications Corporation (POTC),  Philippine Communications Satellite Corporation (PHILCOMSAT), and PHILCOMSAT Holdings Corporation (PHC) due to the alleged improprieties in their operations by their respective Board of Directors.”

On May 8, 2006, Chief of Staff  Rio C. Inocencio, under the authority of Senator Richard J. Gordon, wrote Chairman Camilo L. Sabio of the PCGG, one of the herein petitioners, inviting him to be one of the resource persons in the public meeting jointly conducted by the Committee on Government Corporations and Public Enterprises and Committee on Public Services.  The purpose of the public meeting was to deliberate on Senate Res. No. 455.[2][6]

On May 9, 2006, Chairman Sabio and other commissioners of the PCGG declined the invitation because of prior commitment.[3][7] At the same time, they invoked Section 4(b) of           E.O. No. 1 earlier quoted.

On September 12, 2006, at around 10:45 a.m., Major General Balajadia arrested Chairman Sabio in his office at IRC Building, No. 82 EDSA, Mandaluyong City and brought him to the Senate premises where he was detained.

Hence, Chairman Sabio filed with the Supreme Court a petition for habeas corpus against the Senate Committee on Government Corporations and Public Enterprises and Committee on Public Services, their Chairmen, Senators Richard Gordon and Joker P. Arroyo and Members.

I S S U E S:

Is the investigation conducted on the petitioners violative of their right to privacy?

H E L D:

The claim of immunity is without merit.

Zones of privacy are recognized and protected in our laws.[4][46]  Within these zones, any form of intrusion is impermissible unless excused by law and in accordance with customary legal process. The meticulous regard we accord to these zones arises not only from our conviction that the right to privacy is a “constitutional right” and “the right most valued by civilized men,”[5][47] but also from our adherence to the Universal Declaration of Human Rights which mandates that, “no one shall be subjected to arbitrary interference with his privacy” and “everyone has the right to the protection of the law against such interference or attacks.”[6][48]

Our Bill of Rights, enshrined in Article III of the Constitution, provides at least two guarantees that explicitly create zones of privacy. It highlights a person’s “right to be let alone” or the “right to determine what, how much, to whom and when information about himself shall be disclosed.”[7][49]   Section 2  guarantees  “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.”   Section 3 renders  inviolable  the  “privacy  of  communication and correspondence” and  further  cautions  that  “any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.”

In evaluating a claim for violation of the right to privacy, a court must determine whether a person has exhibited a reasonable expectation of privacy and, if so, whether that expectation has been violated by unreasonable government intrusion.[8][50]   Applying this determination to these cases, the important inquiries are: first, did the directors and officers of Philcomsat Holdings Corporation exhibit a reasonable expectation of privacy?; and second, did the government  violate  such  expectation?

The answers are in the negative. Petitioners were invited in the Senate’s public hearing to deliberate on Senate Res. No. 455, particularly   “on the anomalous losses incurred by the Philippine Overseas Telecommunications Corporation (POTC), Philippine Communications Satellite Corporation (PHILCOMSAT), and Philcomsat Holdings Corporations (PHC) due to the alleged improprieties in the operations by their respective board of directors.”   Obviously, the inquiry focus on petitioners’ acts committed in the discharge of their duties as officers and directors of the said corporations, particularly Philcomsat Holdings Corporation.  Consequently, they have no reasonable expectation of privacy over matters involving their offices in a corporation where the government has interest. Certainly, such matters are of public concern and over which the people have the right to information.

This goes to show that the right to privacy is not absolute where there is an overriding compelling state interest.   In Morfe v. Mutuc,[9][51] the Court, in line with Whalen v. Roe,[10][52] employed the rational basis relationship test when it held that there was no infringement of the individual’s right to privacy as the requirement to disclosure information is for a valid purpose, i.e., to curtail and minimize the opportunities for official corruption, maintain a standard of honesty in public service, and promote morality in public administration.[11][53] In Valmonte v. Belmonte,[12][54] the Court remarked that as public figures, the Members of the  former Batasang Pambansa enjoy a more limited right to privacy as compared to ordinary individuals, and their actions are subject to closer scrutiny.  Taking this into consideration, the Court ruled that the right of the people to access information on matters of public concern prevails over the right to privacy of financial transactions.  

Under the present circumstances, the alleged anomalies in the PHILCOMSAT, PHC and POTC, ranging in millions of pesos, and the conspiratorial participation of the PCGG and its officials are compelling reasons for the Senate to exact vital information from the directors and officers of Philcomsat Holdings Corporations, as well as from Chairman Sabio and his Commissioners to aid it in crafting the necessary legislation to prevent corruption and formulate remedial measures and policy determination regarding PCGG’s efficacy.  There being no reasonable expectation of privacy on the part of those directors and officers over the subject covered by Senate Res. No. 455, it follows that their right to privacy has not been violated by respondent Senate Committees.

Let it be stressed at this point that so  long as the constitutional rights of witnesses, like Chairman Sabio and his Commissioners,  will be respected by respondent Senate Committees, it their duty to cooperate with them in their efforts to obtain the facts needed for intelligent legislative action. The unremitting obligation of every citizen is to respond to subpoenae, to respect the dignity of the Congress and its Committees, and to testify fully with respect to matters within the realm of proper investigation.

In fine, PCGG Chairman Camilo Sabio and Commissioners Ricardo Abcede, Narciso Nario, Nicasio Conti, and Tereso Javier; and Manuel Andal and Julio Jalandoni, PCGG’s nominees to Philcomsat Holdings Corporation, as well as its directors and officers, must comply with the Subpoenae Ad Testificandum issued by respondent Senate Committees directing them to appear and testify in public hearings relative to Senate Resolution No. 455.

Reference:

Constitutional Law Reviewer by Atty. Larry D. Gacayan (2008)

College of Law, University of the Cordilleras

Baguio City


[1][4]      Annex “E” of the Petition in G.R. No. 174318.

[2][6]      Annex “F” of the Petition in G.R. No. 174318.

[3][7]      Annex “G” of the Petition in G.R. No. 174318.

[4][46]     Marquez v. Desierto, G.R. No. 135882, June 27, 2001, 359 SCRA 772.

[5][47]               See Morfe v. Mutuc  No. L-20387, January 31, 1968, 22 SCRA 424.

[6][48]     Article 12 of the Universal Declaration of Human Rights. See also Article 17 (1) and (2) of the International Covenant on Civil and Political Rights.

[7][49]     Constitutional and Legal Systems of ASEAN Countries, Sison, Academy of ASEAN Law and Jurisprudence, 1990, at 221, citing I.R. Cortes, The Constitutional Foundations of Privacy, 7 (1970).

[8][50]     Burrows v. Superior Court of San Bernardino County, 13 Cal. 3d 238, 529 P 2d 590 (1974).   See Katz v. United states (1967), 389 U.S. 347, 350-352, 88 S. Ct. 507, 19 L. Ed. 2d 576; People v. Krivda (1971) 5 Cal. 3d 357, 364, 96 Cal. Rptr. 62, 486 P. 2d 1262; 8 Cal. 3d 623-624,105 Cal. Rptr. 521, 504 P. 2d 457. INSERT  Herrera’s Handbook on Arrest, Search and Seizure.

[9][51]     Supra.

[10][52]    429 U.S. 589 (1977).

[11][53]    Justice Puno, Lecture on Legislative Inquiry and Right to Privacy, p. 60.

[12][54]    170 SCRA 256 (1989)

Constitutional Law Chapter IV – The Search and Seizure Provision

CONSTITUTIONAL LAW

CHAPTER IV – THE SEARCH AND SEIZURE PROVISION

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.

NOTE: Applicable provisions of the Human Security Act/Anti-Terrorism Law, Republic Act No. 9372, Approved on March 6, 2007 and effective on July 15, 2007 (This Law shall be automatically suspended one (1) month before and two (2) months after the holding of any election)

Sec. 18. Period of detention without judicial warrant of arrest.- The provisions of Article 125 of the Revised Penal Code, notwithstanding, any police or law enforcement personnel, who, having been duly authorized in writing by the Anti-Terrorism Council has taken custody of a person charged with or suspected of the crime of terrorism or the crime of  conspiracy to commit terrorism shall, WITHOUT INCURRING ANY CRIMINAL LIABILITY FOR DELAY IN THE DELIVERY OF DETAINED PERSONS TO THE PROPER JUDICIAL AUTHORITIES, DELIVER SAID CHARGED OR SUSPECTED PERSON TO THE PROPER JUDICIAL AUTHORITY WITHIN A PERIOD OF THREE (3) DAYS counted from the moment said charged or suspected person has been apprehended or arrested, detained, and taken into custody by the said  police, or law enforcement personnel: Provided, That the arrest of those suspected of the crime of terrorism or conspiracy to commit terrorism must result from the surveillance under Section 7 and examination of bank deposits under Section 27 pf this Act.

The police or law enforcement personnel concerned shall, before detaining the person suspected of the crime of terrorism, present him or her before any judge at the latter’s residence or office nearest the place where the arrest took place at any time of the day or night. It shall be the duty of the judge, among other things, to ascertain the identity of the police or law enforcement personnel  and the person or persons they have arrested and presented before him or her, to inquire of them the reasons why they have arrested the person and determine by questioning and personal observation whether or not the subject has been  subjected to any physical, moral or psychological torture by whom and why. The judge shall then submit a written report of what he/she had observed when the subject was brought before him to the proper court that has jurisdiction over the case of the person thus arrested.

The judge shall forthwith submit his report within 3 calendar days from the time the suspect was brought to his/her residence or office.

Immediately after taking custody  of a person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism, the police or law enforcement personnel shall notify in writing the judge of the court nearest the place of apprehension or arrest; provided, That where the arrest is made during Saturdays, Sundays, holidays or after office hours, the written notice shall be served at the residence of the judge nearest the place where the accused was arrested. The penalty of 10 years and 1 day to 12 years imprisonment shall be imposed upon the police or law enforcement personnel who fails to notify any judge as provided in the preceding paragraph.

Section 19. Period of Detention in the event of an actual or imminent terrorist attack.- In the vent of an actual or imminent terrorist attack,, suspects may not be detained for more than three days without the written approval of a municipal, city, provincial or regional official of a Human Rights Commission, or judge of the municipal, regional trial court, the Sandiganbayan or a justice of the Court of Appeals nearest the place of arrest. If the arrest is made during Saturdays, Sundays or holidays, or after office hours, the arresting police of law enforcement personnel shall bring the person thus arrested to the residence of any of the officials mentioned above that is nearest the place where the accused was arrested. The approval in writing of any of the said officials shall be secured by the police or law enforcement personnel concerned within five days after the date of the detention of the persons concerned; Provided, however, That within three days after the detention the suspects whose connection with the terror attack or threat is not established, shall be released immediately.

Section 26 provides that persons who have been charged with terrorism or conspiracy to commit terrorism—even if they have been granted bail because evidence of guilt is not strong—can be:

  • Detained under house arrest;
  • Restricted from traveling; and/or
  • Prohibited from using any cellular phones, computers, or other means of communications with people outside their residence.

Section 39. Seizure and Sequestration.- The deposits and their outstanding balances, placements, trust accounts, assets, and records in any bank or financial institution, moneys, businesses, transportation and communication equipment, supplies and other implements, and property of whatever kind and nature belonging:

  • To any person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism;
  • to a judicially declared and outlawed terrorist organization or group of persons;
  • to a member of such judicially declared and outlawed organization, association or group of persons,

-shall be seized, sequestered, and frozen in order to prevent their use, transfer or conveyance for purposes that are inimical to the safety and security of the people or injurious to the interest of the State.

The accused or suspect may withdraw such sums as are reasonably needed by his family including the services of his counsel and his family’s medical needs upon approval of the court. He or she may also use any of his property that is under seizure or sequestration or frozen because of his/her indictment as a terrorist upon permission of the court for any legitimate reason.

Section 40. The seized, sequestered and frozen bank deposits…shall be deemed property held in trust by the bank or financial institution and that their use or disposition while the case is pending shall be subject to the approval of the court before which the case or cases are pending.

Section 41. If the person suspected as terrorist is acquitted after arraignment or his case dismissed before his arraignment by a competent court, the seizure…shall be lifted by the investigating body or the competent court and restored to him without delay. The filing of an appeal or motion for reconsideration shall not stay the release of said funds from seizure, sequestration and freezing.

If convicted, said seized, sequestered and frozen assets shall automatically forfeited in favor of the government.

Requisites of a valid search warrant

Read:

a. Essentials of a valid search warrant,145 SCRA          739

b. Validity of a search  warrant and the admissibility  of  evidence obtained in          violation thereof.

c.  The place to be searched as indicated in the warrant is controlling

            PEOPLE VS. CA, 291 SCRA 400

Narvasa, CJ

In applying for a search warrant, the police officers had in their mind the first four (4) separate apartment units at the rear of ABIGAIL VARIETY STORE in Quezon City to be the subject of their search. The same was not, however, what the Judge who issued the warrant had in mind, AND WAS NOT WHAT WAS ULTIMATELY DESCRIBED IN THE SEARCH WARRANT. As such, any evidence obtained from the place searched which is different from that indicated in the search warrant is inadmissible in evidence for any purpose and in any proceeding.

This is so because it is neither licit nor fair to allow police officers to search a place different from that stated in the warrant on the claim that the place actually searched—although not that specified in the search warrant—is exactly what they had in view when they applied for the warrant and had demarcated in their supporting evidence. WHAT IS MATERIAL IN DETERMINING THE VALIDITY OF A SEARCH IS THE PLACE STATED IN THE WARRANT ITSELF, NOT WHAT THE APPLICANTS HAD IN THEIR THOUGHTS, OR HAD REPRESENTED IN THE PROOFS THEY SUBMITTED TO THE COURT ISSUING THE WARRANT.  As such, it was not just a case of “obvious typographical error”, but a clear case of a search of a place different from that clearly and without ambiguity identified in the search warrant.

NOTE: Very Important: Where a search warrant is issued by one court and the criminal action base don the results of the search is afterwards commenced in another court, IT IS NOT THE RULE THAT A MOTION TO QUASH THE WARRANT (or to retrieve the things seized) MAY BE FILED ONLY IN THE ISSUING COURT—SUCH A MOTION MAY BE FILED FOR THE FIRST TIME IN EITHER THE ISSUING COURT OR THAT IN WHICH THE CRIMINAL PROCEEDING IS PENDING.

d. Validity of a warrantless search and seizure as a result of an informer’s tip. Note the two (2) conflicting decisions of the Supreme Court.

PEOPLE VS. ARUTA, 288 SCRA 626

On December 13, 1988, P/Lt. Abello of the Olongapo PNP was tipped off by an informer that Aling Rosa would be arriving from Baguio City  the following day with a large volume of marijuana. As a result of the tip,  the policemen waited for a Victory Bus from Baguio City near the PNB Olongapo, near Rizal Ave. When the accused got off, she was pointed to by the informer. She was carrying a traveling bag at that time. She was not acting suspiciously. She was arrested without a warrant.

The bag allegedly contained 8.5 kilos of marijuana. After trial, she was convicted and imposed a penalty of life imprisonment.

Issue:

Whether or not the marijuana allegedly taken from the accused is admissible in evidence.

Held:

             Warrantless search is allowed in the following instances:

1.            customs searches;

2.            searches of moving vehicle;

3.            seizure of evidence in plain view;

4.            consented searches;

5.            search incidental to a lawful arrest; and

6.            stop and frisk measures.

The above exceptions to the requirement of a search warrant, however, should not become unbridled licenses for law enforcement officers to trample upon the conditionally guaranteed and more fundamental right of persons against unreasonable search and seizures. The essential requisite of probable cause must still be satisfied before a warrantless search and seizure can be lawfully conducted. In order that the information received by the police officers may be sufficient to be the basis of probable cause, it must be based on reasonable ground of suspicion or belief a crime has been committed or is about to be committed.

The marijuana obtained  as a result of a warrantless search is inadmissible as evidence for the following reasons:

a.            the policemen had sufficient time to apply for a search warrant  but they failed to do so;

b.            the accused was not acting suspiciously;

c.            the accused’s identity was previously ascertained so applying for a warrant should have been easy;

d.            the accused in this case was searched while innocently crossing a street

Consequently, there was no legal basis for the police to effect a warrantless search of the accused’s bag, there being no probable cause and the accused’s not having been legally arrested. The arrest was made only after the accused was pointed to by the informant at a time when she was not doing anything suspicious. The arresting officers do not have personal knowledge that the accused was committing a crime at that time.

            Since there was no valid warrantless arrest, it logically follows that the subsequent search is similarly illegal, it being not incidental to a lawful arrest. This is so because if a search is first undertaken, and an arrest effected based on the evidence produced by the search, both such search and arrest would be unlawful, for being contrary to law.

This case is similar tot he case of PEOPLE VS. AMINNUDIN,  and PEOPLE VS. ENCINADA.

PEOPLE VS. MONTILLA, 284 SCRA 703

            On June 19, 1994, at about 2 p.m., SPO1 Talingting and SPO1 Clarin of the Dasmarinas, Cavite PNP were informed by an INFORMER that a drug courier would be arriving in Barangay Salitran, Dasmarinas, Cavite, from Baguio City, with an undetermined amount of marijuana. The informer likewise informed them that he could recognize said person.

            At about 4 in the morning of June 20, 1994, the appellant was arrested by the above-named police officers while alighting from a passenger jeepney  near a waiting shed in Salitran, Dasmarinas, Cavite, upon being pointed to by the informer. The policemen recovered 28 kilos of dried marijuana leaves. The arrest was without warrant.

            The trial court convicted the appellant for transporting marijuana based on the testimonies of the Above-named police officers without presenting the alleged informer.

Issue:

            Was the warrantless arrest valid?

Held:

            The accused claims that the warrantless search and seizure is illegal because the alleged information was received by the police on June 19, 1994 and therefore, they could have applied for a search warrant. The said contention is without merit considering that the information given by the informer is too sketchy and not detailed enough for the obtention of the corresponding arrest or search warrant. While there is indication that the informer knows the courier, the records do not show that he knew his name. On bare information, the police could not have secured a warrant from a judge.

            Furthermore, warrantless search is allowed in the following instances:

1.            customs searches;

2.            searches of moving vehicle;

3.            seizure of evidence in plain view;

4.            consented searches;

5.            search incidental to a lawful arrest; and

6.            stop and frisk measures.

Since the accused was arrested for transporting marijuana, the subsequent search on his person is justified. An arresting officer has the right to validly search and seize from the offender (1) dangerous weapons; and (2) those that may be used  as proof of the commission of the offense.

In the case at bar, upon being pointed to by the informer as the drug courier, the policemen requested the accused  to open and show them the contents of his bag and the cartoon he was carrying and he voluntarily opened the same and upon cursory inspection, it was found out that it contains marijuana. Hence the arrest.

The accused insists that it is normal for a person traveling with a bag and cartoon which should not elicit the slightest suspicion that he was committing a crime. In short, there was no probable cause for these policemen to think that he was committing a crime.

The said contention was considered without merit by the Supreme Court considering the fact that he consented to the search as well as the fact that the informer was a reliable one who had supplied similar information to the police in the past which proved positive.

(NOTE: The SC held that the non-presentation of the informer does not affect the case for the prosecution because he is not even the best witness. He is merely a corroborative witness to the arresting officers. )

JUSTICE PANGANIBAN:

To say that “reliable tips” from informers constitute probable cause for a warrantless arrest or search IS A DANGEROUS PRECEDENT AND PLACES IN GREAT JEOPARDY THE DOCTRINES LAID DOWN IN MANY DECISIONS MADE BY THIS COURT. (PEOPLE VS. BURGOS, 144 SCRA 1; PEOPLE VS. AMINNUDIN, 163 SCRA 402; PEOPLE VS. ENCINADA, October 2, 1997; PEOPLE VS. MENGOTE, 220 SCRA).

The case is similar to the case of People vs. Encimada where the appellant was searched without a warrant while disembarking from a ship on the strength of a tip from an informer received by the police the previous afternoon that the appellant would be transporting prohibited drugs. The search yielded a plastic package containing marijuana. On Appeal, the SC reversed the decision of conviction and held that Encinada did not manifest any suspicious behavior that would necessarily and reasonably invite the attention of the police.


ELI LUI, ET AL. VS. MATILLANO, May 27, 2004

Right against unreasonable searches and seizures; Mission Order does not authorize an illegal search. Waiver of the right against an unreasonable search and seizure.

In search of the allegedly missing amount of P45,000.00 owned by the employer, the residence of a relative of the suspect was forcibly open by the authorities by kicking the kitchen door to gain entry into the house. Thereafter, they confiscated different personal properties therein which were allegedly part of those stolen from the employer. They were in possession of a mission order but later on claimed that the owner of the house gave his consent to the warrantless search.  Are the things admissible in evidence? Can they be sued for damages as a result of the said warrantless search and seizure?

Held:

The right  against unreasonable searches and seizures is a personal right which may be waived expressly or impliedly. BUT A WAIVER BY IMPLICATION CANNOT BE PRESUMED. There must be clear and convincing evidence of an actual intention to relinquish the right. There must be proof of the following:

a.            that the right exists;

b.            that the person involved had knowledge, either constructive or actual, of the existence of said right;

c.            that the said person had an actual intention to relinquish the right.

Finally, the waiver must be made voluntarily, knowingly and intelligently in order that the said is to be valid.

The search was therefore held illegal and the members of the searching party held liable for damages in accordance with the doctrine laid down in Lim vs. Ponce de Leon and MHP Garments vs. CA.

e.  General or roving warrants

Read:

1.            Stonehill vs. Diokno,June 19,1967

Concepcion, C.J.

The petitioners are questioning the validity of a total of 42 search warrants issued on different dates against them and the corporations in which they are officers, directing the peace officer to search the persons above-named and/or the premises of their offices, warehouses and to seize and take possession of the following personal property, to wit:

“Books of accounts, financial records, vouchers, correspondence, receipts, ledgers, journals, typewriters and other documents or papers showing all business transactions including disbursement receipts, balance sheets and profit and loss statements”

since they are the subject of the offense of violating the CENTRAL BANK LAWS, TARIFF AND CUSTOMS LAWS, INTERNAL REVENUE CODE AND THE REVISED PENAL CODE.

The petitioners claim that the search warrants are void being violative of the Constitutional provision on search and seizure on the ground that:

a. The search warrants did not particularly describe the documents, books and things to be seized;

b. cash money not mentioned in the warrant were actually seized;

c. The warrants were issued to fish evidence in the deportation cases against them;

d. the searches and seizures were made in an illegal manner;

e. the things seized were not delivered to the court to be disposed of in a manner provided for by law.

Issue:

Were the searches and seizures made in the offices and residences of the petitioners valid?

a. As to the searches made on their offices, they could not question the same in their personal capacities because the corporations have a personality separate and distinct with its officers. An objection to an unlawful search and seizure IS PURELY PERSONAL AND CANNOT BE AVAILED OF BY THIRD PARTIES. CONSEQUENTLY, THE PETITIONERS MAY NOT VALIDLY OBJECT TO THE USE IN EVIDENCE AGAINST THEM OF THE DOCUMENTS, PAPERS AND THINGS SEIZED FROM THE OFFICES AND PREMISES OF THE CORPORATIONS, TO WHOM THE SEIZED EFFECTS BELONG, AND MAY NOT BE INVOKED BY THE CORPORATE OFFICERS IN PROCEEDINGS AGAINST THEM IN THEIR INDIVIDUAL CAPACITY.

b. As to the documents seized in the residences of the petitioners, the same may not be used in evidence against them because the warrants issued were in the nature of a general warrant for failure to comply with the constitutional requirement that:

1. that no warrant shall issue but upon probable cause, to be determined by the judge in the manner set forth in said provision; and

2. that the warrant shall particularly describe the things to be seized.

None of these requirements has been complied with in the contested warrants. They were issued upon applications stating that the natural and juridical persons therein named had committed a violation of Central bank Laws, Tariff and Customs Laws, Internal revenue Code and Revised Penal Code. IN OTHER WORDS, NO SPECIFIC OFFENSE HAD BEEN ALLEGED IN SAID APPLICATIONS. THE AVERMENTS THEREOF WITH RESPECT TO THE OFFENSE COMMITTED WERE ABSTRACT. AS A CONSEQUENCE, IT WAS IMPOSSIBLE FOR THE JUDGE WHO ISSUED THE WARRANTS TO HAVE FOUND THE EXISTENCE OF PROBABLE CAUSE, FOR THE SAME PRESUPPOSES THE INTRODUCTION OF COMPETENT PROOF THAT THE PARTY AGAINST WHOM IT IS SOUGHT HAS PERFORMED PARTICULAR ACTS, OR COMMITTED SPECIFIC OMISSIONS, VIOLATING A GIVEN PROVISION OF OUR CRIMINAL LAWS.

2. Bache vs. Ruiz, 37 SCRA 823

3. Secretary vs. Marcos, 76 SCRA 301

4. Castro vs. Pabalan, April 30,l976

5. Asian Surety vs. Herrera, 54 SCRA 312 (A search warrant for estafa, falsification, tax evasion and insurance fraud is a general warrant and therefore not valid)

6. Collector vs. Villaluz, June 18,1976

7. Viduya vs. Verdiago, 73 SCRA 553

8. Dizon vs. Castro, April 12, 1985

9. People vs. Veloso, 48 Phil. 169

1.            TAMBASEN VS. PEOPLE, July 14, 1995; PEOPLE VS. CA, 216 SCRA 101. “A SCATTER-SHOT WARRANT is a search warrant issued for  more than one specific offense like one for estafa, robbery, theft and qualified theft”)

f. Define probable cause. Who determines probable cause?

a.            ROBERTS VS. CA, 254 SCRA 307

b.            DE LOS SANTOS VS. MONTESA, 247 SCRA 85

VICENTE LIM,SR. AND MAYOR SUSANA LIM

VS.HON. N. FELIX (G.R. NO. 99054-57)

EN BANC

 GUTIERREZ, JR.  J.

Facts:

Petitioners are suspects of the slaying of congressman Moises Espinosa, Sr. and three of his security escorts and the wounding of another. They were initially charged, with three others, with the crime of multiple murder with frustrated murder. After conducting a preliminary investigation, a warrant of arrest was issued on July 31, 1989. Bail was fixed at P200,000.

On September 22, 1989, Fiscal Alfane, designated to review the case, issued a Resolution affirming the finding of a prima facie case against the petitioners but ruled that a case of Murder for each of the killing of the four victims and a physical injuries case for inflicting gunshot wound on the survivor be filled instead against the suspects. Thereafter, four separate informations to that effect were filed with the RTC of Masbate with no bail recommended.

On November 21, 1989, a motion for change of venue, filed by the petitioners was granted by the SC. It ordered that the case may be transferred from the RTC of Masbate to the RTC of Makati.

Petitioners then moved that another hearing ba conducted to determine if there really exists a prima facie case against them in the light of documents showing recantations of some witnesses in the preliminary investigation. They likewise filed a motion to order the transmittal of initial records of the preliminary investigation conducted by the municipal judge of Barsaga of Masbate. These motions were however denied by the court because the prosecution had declared the existence of probable cause, informations were complete in form  in substance , and there was no defect on its face. Hence it found it just and proper to rely on the prosecutor’s certification in each information.

ISSUE:

Whether or not a judge may issue a warrant of arrest without bail by simply relying on the prosecutions certification and recommendation that  a probable cause exists?

     Held:

1.  The judge committed a grave abuse of discretion.

In the case of Placer vs. Villanueva, the sc ruled that a judge may rely upon the fiscal’s certification of the existence of a probable cause and on the basis thereof, issue a warrant of arrest. However, the certification does not bind the judge to come out with the warrant of arrest. This decision interpreted the “search and seizure” provision of the 1973 Constitution. Under this provision, the judge must satisfy himself of the existence of probable cause before issuing a warrant of order of arrest. If on the face of information, the judge finds no probable cause, he may disregard the fiscal’s certification and require the submission of the affidavits of witness to aid him at arriving at a conclusion as to the existence of a probable cause. This has been the rule since U.S vs. Ocampo and Amarga vs. Abbas.

2.  In the case of Soliven vs. Makasiar, decided under the 1987 Constitution, the Court noted that the addition of the word personally after the word determined and the deletion of the grant of authority by the 1973 Constitution to issue warrants to other respondent officers as to may be authorized by law does not require the judge to personally examine the complainant and his witness in his determination of probable cause for the issuance of a warrant of arrest.What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause. Following established doctrine and procedures, he shall:

(1)  personally evaluate the reports and the supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest;

(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.

3.    The case of People vs. Honorable Enrique B. Inting reiterates the following doctrines:

(1)  The determination of probable cause is a function of the judge. It is not for the Provincial Fiscal or Prosecutor nor for the Election Supervisor to ascertain. Only the judge alone makes this detemination.

(2)  The preliminary inquiry made by the prosecutor does not bind the judge. It merely assist him to make the determination of probable cause. The judge does not have to follow what the prosecutor’s present to him. By itself, the prosecutor’s certification of probable cause is ineffectual. It is the report, the affidavits, the transcripts of stenographic notes, and all other supporting documents behind the prosecutor’s certification which are material in assisting the judge to make his determination.

(3)  Preliminary inquiry should be distinguished from the preliminary investigation proper. While the former seeks to determine probable cause for the issuance of warrant of arrest, the latter ascertains whether the offender should be held for trial or be released.

4.     4.  In the case of Castillo vs. Villaluz, the court ruled that judges of RTC no longer have authority to conduct preliminary investigations: This authority was removed from them by the 1985 Rules on Criminal Procedure, effective on January 1, 1985.

5.      In the present case, the respondent judge relies solely on the certification of the prosecutor. Considering that all the records of the investigation are in Masbate, he has not personally determined the existence of probable cause. The determination was made by the provincial prosecutor. The constitutional requirement had not been satisfied.

The records of the preliminary investigation conducted by the Municipal Court of Masbate and reviewed by the respondent Fiscal were still in Masbate when the respondent Fiscal issued the warrant of arrest against the petitioners. There was no basis for the respondent judge to make his personal determination regarding the existence of probable cause from the issuance of warrant of arrest as mandated by the Constitution. He could not have possibly known what has transpired in Masbate as he had nothing but a certification. Although the judge does not have to personally examine the complainant and his witnesses (for the prosecutor can perform the same functions as commissioner for taking of evidence) there should be a report and necessary documents supporting the Fiscal’s bare certification. All of these should be before the judge.

1. Amarga vs. Abbas, 98 Phil. 739

1-a. 20th Century Fox vs. CA, 164 SCRA 655

1-b. Quintero vs. NBI, 162 SCRA 467

1-c. The Presidential Anti-Dollar Salting Task Force vs. CA, GR No. 83578, March 16,    1989

SOLIVEN VS. MAKASIAR, 167 SCRA 393

The word “personally” after the word determined does not necessarily mean that the judge should examine the complainant and his witnesses personally before issuing the search warrant or warrant of arrest but the exclusive responsibility on the part of said judge to satisfy himself of the existence of probable cause. As such, there is no need to examine the complainant and his witnesses face to face. It is sufficient if the judge is convinced of the existence of probable cause upon reading the affidavits or deposition of the complainant and his witnesses.

1-e. Pendon vs. CA, Nov. 16, 1990

1-f. P. vs. Inting, July 25, 1990

1-g. Umil vs. Ramos, et al., July 9, 1990 with the Resolution of the Motion for Reconsideration in November, 1991

1-h. Paderanga vs. Drilon, April 19, 1991

2. Department of Health vs. Sy Chi Siong,               Inc., GR No. 85289, February 20, 1989

2-a. P. vs. Villanueva, 110 SCRA 465

2-b. Placer vs. Villanueva, 126 SCRA 463 (Only a judge has the power to determine probable insofar as the issuance of a warrant of arrest is concerned)

3. Tolentino vs. Villaluz,July 27,1987

4. Cruz vs. Gatan, 74 SCRA 226

5. Olaes vs. P., 155 SCRA 486

1.            Geronimo vs. Ramos, 136 SCRA 435

7.JUAN PONCE ENRILE VS. JUDGE JAIME SALAZAR, ET AL., G.R.NO. 92163, June 5, 1990

Due process; right to bail; warrant of arrest

(Note: This might be useful also in your Criminal Law)

Narvasa, J.

On February 27, 1990, Senator Juan Ponce Enrile was arrested by law enforcement officers led by NBI Director Alfredo Lim on the strength of a warrant of arrest issued by the respondent judge, HON. JAIME SALAZAR, Regional trial Court, Branch 103, Quezon City in Criminal Case No. 90-10941. The warrant was issued on an information signed and filed earlier in the day by Senior State Prosecutor AURELIO TRAMPE charging Senator Enrile, the spouses Rebecco and Erlinda Panlilio, and Gregorio Honasan with the crime of rebellion with murder and multiple frustrated murder allegedly committed during the period of the failed coup attempt from November 29 to December 10, 1990. Senator Enrile was taken to and held overnight at the NBI Headquarters on Taft Ave., Manila, WITHOUT BAIL, NONE HAVING BEEN RECOMMENDED IN THE INFORMATION AND NONE FIXED IN THE WARRANT OF ARREST.

On February 28, 1990, petitioner through counsel filed a petition for Habeas Corpus alleging that he was deprived of his constitutional rights in being, or having been:

a. held to answer for a criminal offense which does not exist in the statute books;

b. charged with a criminal offense in an information for which no complaint was initially filed or preliminary investigation was conducted, hence, he was denied due process;

c.  denied the right to bail; and

d.  arrested or detained on the strength of  warrant issued without the judge who issued it first having personally determined the existence of probable cause.

HELD:

The parties’ oral and written arguments presented the following options:

1. Abandon the Hernandez Doctrine and adopt the dissenting opinion of Justice Montemayor  that “rebellion cannot absorb more serious crimes”;

2. Hold Hernandez Doctrine applicable only to offenses committed in furtherance, or as necessary means for the commission, of rebellion, BUT NOT TO ACTS COMMITTED IN THE COURSE OF A REBELLION WHICH ALSO CONSTITUTE COMMON CRIMES OF GRAVE OR LESS GRAVE CHARACTER;

3. Maintain Hernandez Doctrine as applying to make rebellion absorb all other offenses committed in its course, whether or not necessary to its commission or in furtherance thereof.

1. On the first option, 11 justices voted AGAINST abandoning Hernandez. Two members felt that the doctrine should be re-examined. In view of the majority, THE RULING REMAINS GOOD LAW, ITS SUBSTANTIVE AND LEGAL BASES HAVE WITHSTOOD ALL SUBSEQUENT CHALLENGES AND NO NEW ONES ARE PRESENTED HERE PERSUASIVE ENOUGH TO WARRANT A COMPLETE REVERSAL. This is so because of the fact that the incumbent President (exercising legislative  powers under the 1986 Freedom Constitution) repealed PD No. 942 which added a new provision of the Revised Penal Code, particularly Art. 142-A which sought to nullify if not repealed the Hernandez Doctrine. In thus acting, the President in effect by legislative fiat reinstated the Hernandez as a binding doctrine with the effect of law. The Court can do no less than accord it the same recognition, absent any sufficiently powerful reason against so doing.

2. On the second option, the Supreme Court was unanimous in voting to reject the same though four justices believe that the arguments in support thereof is not entirely devoid of merit.

3. With the rejection of the first two options, the Hernandez Doctrine remains a binding doctrine operating to prohibit the complexing of rebellion with any other offense committed on the occasion thereof, either as a means necessary to its commission or as unintended effect of an activity that constitutes rebellion.

On the issues raised by the petitioner:

a. By a vote of 11-3, the Court ruled that the information filed against the petitioner does in fact charge an offense despite the objectionable phrasing that would complex  rebellion with murder and multiple frustrated murder, that indictment is to be read as charging SIMPLE REBELLION. The petitioner’s contention that he was charged with a crime that does not exist in the statute books, WHILE TECHNICALLY CORRECT SO FAR AS THE COURT RULED THAT REBELLION MAY NOT BE COMPLEXED WITH OTHER OFFENSES COMMITTED ON THE OCCASION THEREOF, MUST THEREFORE BE DISMISSED AS A MERE FLIGHT OF RHETORIC. Read in the context of Hernandez, the information does indeed charge the petitioner with a crime defined and punished by the Revised Penal Code: SIMPLE REBELLION.

b. Was the petitioner charged without a complaint having been initially filed and/or preliminary investigation conducted? The record shows that a complaint for simple rebellion against petitioner was filed by the NBI Director and that based on the strength of said complaint a preliminary investigation was conducted by the respondent prosecutors culminating in the filing of the questioned information. THERE IS NOTHING INHERENTLY IRREGULAR OR CONTRARY TO LAW IN FILING AGAINST A RESPONDENT AN INDUCTMENT FOR AN OFFENSE DIFFERENT FROM WHAT IS CHARGED IN THE INITIATORY COMPLAINT, IF WARRANTED BY THE EVIDENCE DEVELOPED DURING THE PRELIMINARY INVESTIGATION.

c. The petitioner claims that the warrant issued is void because it was issued barely one hour and twenty minutes after the case was raffled to the respondent judge which could hardly gave him sufficient time to personally go over the voluminous records of the preliminary investigation. Also, the petitioner claims that the respondent judge issued the warrant for his arrest without first personally determining the existence of  probable cause by examining under oath or affirmation the complainant and his witnesses, in violation of Art. III, Section 2, of the Constitution. This Court has already ruled that it is not unavoidable duty of the judge to make such a personal examination, it being sufficient that he follows established procedure by PERSONALLY EVALUATING THE REPORT AND THE SUPPORTING  DOCUMENT SUBMITTED BY THE PROSECUTOR. MEREBY BECAUSE SAID RESPONDENT JUDGE HAD WHAT SOME MIGHT CONSIDER ONLY A RELATIVELY BRIEF PERIOD WITHIN WHICH TO COMPLY WITH THAT DUTY , GIVES NO REASON TO ASSUME THAT HE HAD NOT, OR COULD NOT HAVE, SO COMPLIED; NOR DOES THAT SINGLE CIRCUMSTANCE SUFFICE TO OVERCOME THE LEGAL PRESUMPTION THAT OFFICIAL DUTY HAS BEEN REGULARLY PERFORMED.

d. Petitioner also claims that he is denied of his constitutional right to bail. In the light of the Court’s affirmation of Hernandez as applicable to petitioner’s case, and of the logical and necessary corollary that the information against him should be considered as charging only the crime of simple rebellion which is bailable before conviction, THAT MUST NOW BE ACCEPTED AS A CORRECT PROPOSITION.

NOTES:

This might be useful also in your Remedial Law.

Was a petition for Habeas Corpus before the Supreme Court the appropriate vehicle for asserting a right to bail or vindicating its denial?

The Supreme Court held that the criminal case before the respondent judge is the normal venue for invoking the petitioner’s right to have provisional liberty pending trial and judgment. The correct course was for the petitioner to invoke that jurisdiction by filing a petition to be admitted to bail, claiming a right to bail per se or by reason of the weakness of the evidence against him. ONLY AFTER THAT REMEDY WAS DENIED BY THE TRIAL COURT SHOULD THE REVIEW JURISDICTION OF THE SUPREME COURT BE INVOKED, AND EVEN THEN, NOT WITHOUT FIRST APPLYING TO THE COURT OF APPEALS IF APPROPRIATE RELIEF WAS ALSO AVAILABLE THERE.

Even assuming that the petitioner’s premise that the information charges a non-existent crime would not excuse or justify his improper choice of remedies. Under either hypothesis, the obvious recourse would have been a motion to quash brought in the criminal action before the respondent judge.

g. Warrantless searches and seizures–when valid or not. Is “Operation Kapkap” valid?

Read:

PEOPLE VS. MENGOTE, G.R. No. 87059, June, 1992, 210 scra 174

Warrantless search and seizure

Cruz, J.

Facts:

1. On August 8, 1987, the Western Police District received a telephone call from an informer that there were three suspicious-looking persons at the corner of Juan Luna and North Bay Blvd., in Tondo, Manila;

2. When the surveilance team arrived therein, they saw the accused “looking from side to side” and “holding his abdomen”. They approched these persons and identified themselves as policement that is why they tried to ran away because of the other lawmen, they were unable to escape;

3. After their arrest, a .38 cal. Smith and Wessor revolver was confiscated from the accused and several days later, an information for violation of PD 1866 was filed against him;

4. After trial, Mengote was convicted of having violated PD 1866 and was sentenced to suffer reclusion perpetua based on the alleged gun as the principal evidence. Hence this automatic appeal.

Issue:

Was there a valid warrantless search and seizure?

Held:

There is no question that evidence obtained as a result of an illegal search or seizure is inadmissible in any proceeding for any purpose. That is the absolute prohibition  of Article III, Section 3 [2], of the Constitution. This is the celebrated exclusionary rule based on the justification  given by  Justice Learned Hand that “only in case the prosecution, which itself  controls the seizing officials, knows that it cannot profit  by their wrong will the wrong be repressed.”

Section 5,  Article 113 of  the Rules  of Court  provides:

Sec.  5. Arrest without warrant; when lawful.-  A peace officer or 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;

(b) When an  offense has in fact just  been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it;  and

(c) 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 temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

x  x  x

          We have carefully examined the wording of this Rule and cannot see how we we can agree with the prosecution.

Par. (c) of Section 5 is  obviously inapplicable as Mengote was not an escapee from a penal institution when he was arrested. We therefore confine ourselves to determining  the lawfulness of his arrest under either  Par. (a) or Par. (b) of this Section.

Par. (a) requires that the person be arrested (1) after he has  committed or while he is actually committing or is at least attempting to commit an offense, (2) in the presence of the arresting officer.

These requirements have not been established in the case at bar. At the time of the arrest in question, the accused-appellant was merely “looking from side to side”  and “holding his abdomen,” according to the arresting officers themselves. There was apparently no offense that had just  been committed or was being actually committed  or at least being attempted by  Mengote in thie presence.

The Solicitor  General  submits that the actual  existence  of an offense was not necessary  as long as Mengote’s  acts created  a reasonable suspicion  on the part of the arresting officers and induced in them the belief that an offense had been committed and that accused-appellant had committed it”. The question is, What offense? What offense  could possibly have been suggested by a person “looking from side to side” and  “holding his abdomen” and in  aplace not exactly  forsaken.

These are certainly not sinister acts. And the setting of the arrest  made them less so, if at all. It might have been different if Mengote had been apprehended at an unholy hour and in a  place where he  had  no reason to be, like a darkened alley at 3 o’clock in the morning. But he was arrested at 11:30 in the morning  and in  a  crowded street  shortly after alighting from a passenger jeep  with his companion.He was not skulking in the shadows but walking in the clear light of day. There was nothing clandestine about his being on that street at that busy hour in the blaze of the noonday sun.

On the other  hand, there could  have  been a number of  reasons, all of them innoent, why hiseyes were darting from  side to sideand he was holding his  abdomen. If they excited suspicion in the minds of the arresting officers, as the prosecution suggests, it has nevertheless  not  been shown what their suspicion was all about.

x x x

          The case before us is different because there was nothing to support the arresting  officers’ suspicion other than Mengote’s darting eyes and his hand on his abdomen. By no stretch of the imagination could it have been inferred from these acts that  an offense had just been committed, or was  actually being committed, or was at least being attempted  in their presence.

This is similar to PEOPLE vs. AMMINUIDIN, 163 SCRA 402 where the Court held that  a warrantless arrest of the accused was unconstitutional. This was effected while he was coming  down the vessel, to all appearances no less innocent than the other disembarking passengers. He had  not  committed nor was actually committing  or attempting to commit an offense  in the presence of the arresting officers. He was not even acting suspiciously. In short, there was no probable cause that, as the prosecution incorrectly suggested, dispensed with the constitutional requirement of a warrant.

Par. (b) is no less applicable because its no  less stringent requirements have also not been satisfied. Theprosecution has not shown that at the time  of Mengote’s arrest an offense had in fact been committed and that the arresting officers had  personal knowldge of facts indicating that Mengote had committed it.  All they had was hearsay information from the  telephone caller, and  about a crime that had yet  to   bem committed.

x x x

  Before these events, the peace  officers   had no knowledge even of  Mengote’s  identity,  let  alone   the  fact that he was  involved in  the  robbery of  Danganan’s house.

In  the landmark case  of  People vs. Burgos, 144  SCRA 1, this  Court declared:

Under Section 6(a) of Rule 113, the officer arresting a person who has just committed, is committing, or is about to commit an offense must have personalknowledge of that fact. The offense must also be committed in his presence or within his view. (SAYO vs. CHIEF OF POLICE, 80 Phil. 859).

x x x

          In arrests without a warrant under Section 6(b), however, it is not enough that there is reasonable ground to believe that the person to be arrested has committed a crime. A crime must in fact or actually have been committed first. That a crime has actually been committed is an essential precondition. It is not enough to suspect that a crime may have been committed. The fact of the commission of the offense must be undisputed. The test of reasonable ground applies only to the identity of the perpetrator..

This doctrine was affirmed  in Alih vs. Castro, 151 SCRA 279, thus:

If the arrest  was  made under Rule 113,  Section 5, of the Rules of Court in connection with a crime about to be committed, being committed,  or  just  committed, what was that crime? There is no allegation in the record of such a  falsification. Parenthetically, it  may be observed that  under the Revised Rule  113, Section 5(b), the officer making the arrest must have personal knowledge of the ground therefor as  stressed in the recent case of  People vs.  Burgos.

It would be a  sad day, indeed, if any person could be summarily arrested and searched just because he is holding  his abdomen,  even if it be possibly because of a stomach-ache, or  if a peace officer could clamp handcuffs on any person with a shifty look on suspicion that  he may have committed a criminal act is actually committing or   attempting it. This simply  cannot be done in  a free society. This is not a police state where order   is exalted over liberty or, worse, personal malice on the part ofthe arresting officer may be  justified  in the name of security.

x x x

          The court feels that if the  peace officers had been  more mindful of the provisions of the Bill of Rights, the prosecution of the accused-appellant might have succeeded. As it happened, they allowed their over zealousness  to get the better of them, resulting in their disregard     of the requirements of a valid search and seizure  that rendered inadmissible the evidence they had invalidly seized.

This should be a lesson to other  peace officers. Their impulsiveness may be the very  cause   of the acquittal of persons who deserve to be convicted, escaping the clutches of  the law, because, ironically  enough, it  has not been observed by those  who are supposed to  enforce it.

When illegal arrest is deemed waived.

Warrantless arrest; no personal knowledge of the arresting officer

PEOPLE VS. GALVEZ, 355 SCRA 246

Mendoza, J.

The policeman  arrested the accused-appellant on the basis solely of what Reynaldo Castro had told him and not because he saw the accused-appellant commit the crime charged against him. Indeed, the prosecution admitted that there was no warrant of arrest issued against accused-appellant when the latter was taken into custody. Considering that the accused-appellant was not committing a crime at the time he was arrested  nor did the arresting officer have any personal knowledge of facts indicating that accused-appellant committed a crime, his arrest without a warrant cannot be justified.

However, by entering a plea of not guilty during the arraignment, the accused-appellant waived his right to raise the issue of illegality of his arrest. IT IS NOW SETTLED THAT OBJECTION TO A WARRANT OF ARREST OR THE PROCEDURE BY WHICH A COURT ACQUIRES JURISDICTION OVER THE PERSON OF AN ACCUSED MUST BE MADE BEFORE HE ENTERS HIS PLEA, OTHERWISE, THE OBJECTION IS DEEMED WAIVED. THE FACT THAT THE ARREST WAS ILLEGAL DOES NOT RENDER THE SUBSEQUENT PROCEEDINGS VOID AND DEPRIVE THE STATE OF ITS RIGHT TO CONVICT THE GUILTY WHEN ALL THE FACTS POINT TO THE CULPABILITY OF THE ACCUSED.

g-1. Warrantless Search and seizure by a private person. (Valid since the constitutional provision is not applicable to him; when it is not valid)

Read:

1.            PEOPLE VS. MENDOZA, 301 SCRA 66

Warrantless searches and seizures by private individuals

2. SILAHIS INTERNATIONAL HOTEL, INC. VS. ROGELIO SOLUTA, ET AL., 482 SCRA 660

Carpio-Morales, J.

The petitioner suspects that the respondents who are officers of the Silahis International Hotel Union were using the Union Office located inside the hotel in the sale or use of marijuana, dollar smuggling, and prostitution. They arrived at the said conclusion through surveillance.

In the morning of January 11, 1988, while the respondent union officer was opening the Union Office, security officers of the plaintiff entered the union office despite objections thereto by forcibly opening the same. Once inside  the union office they started to make searches which resulted in the confiscation of  a plastic bag of marijuana. An information for violation of the dangerous drugs act was filed against the respondent before the RTC of Manila which acquitted them on the ground that the search conducted was illegal since it was warrantless and without consent by the respondents.

After their acquittal, the respondents filed a case for Malicious Prosecution against the petitioner for violation of Art. 32 of the Civil Code. After trial, the  Regional Trial Court held that petitioners are liable for damages as a result of an illegal search. The same was affirmed by the Court of Appeals.

Issue:

Whether the warrantless search conducted by the petitioners (private individual and corporation) on the union office of the private respondents is valid.

Held:

The search is not valid and they are civilly liable under Art. 32 of the Civil Code. The fact that the union office is part of the hotel owned by the petitioners does not justify the warrantless search. The alleged reports that the said union office is being used by the union officers for illegal activities does not justify their acts of barging into the said office without the consent of the union officers and without a search warrant. If indeed there was surveillance made, then they should have applied for a search warrant.

The ruling in People vs. Andre Marti is not applicable here because in Marti, a criminal case, the issue was whether an act of a private individual, allegedly in violation of one’s constitutional rights may be invoked against the State. In other words, the issue in Marti is whether the evidence obtained by a private person acting in his private capacity without the participation of the State, is admissible.

3.  PEOPLE OF THE PHILIPPINES VS. ANDRE MARTI

G.R. NO. 81561, January 18, 1991

Warrantless Search and seizure

by a private person

Bidin, J.

FACTS:

Andre Marti and his common-law wife, Shirley Reyes went to Manila Packaging and Export Forwarders to send four (4) packages to Zurich, Switzerland. Anita Reyes, owner of the place (no relation to Shirley), received said goods and asked if she could examine and inspect it. Marti refused. However later, following standard operating procedure, Job Reyes, co-owner and husband of Anita opened the boxes for final inspection, before delivering it to the Bureau of Customs and/or Bureau of Posts.

Upon opening, a peculiar odor emanated from the box that was supposed to contain gloves. Upon further perusal, he felt and saw a dried leaves inside the box. Job Reyes then brought samples to the NBI, he told them that the boxes to be shipped were still in his office. In the presence of the NBI agents, Reyes opened the box and discovered that the odor came from the fact that the dried leaves were actually those of the marijuana flowering tops.

Two other boxes,marked as containing books and tabacalera cigars; also revealed bricks or case-like marijuana leaves and dried marijuana leaves respectively.

Marti was later invited by the NBI to shed light on the attempted shipment of the dried leaves. Thereafter an information was filed against the appellant for violating RA 6425 or the Dangerous Drugs Act. The Special Criminal Court of Manila convicted accused Marti of violating sec.21(b) of said RA.

ISSUES:

1. Did the search conducted by a private person, violate accused’s right against unreasonable searches seizures and invocable against the state?

2.  Was the evidence procured from the search admissible?

Held:

1. No, constitutional protection on search and seizure is imposable only against the state and not to private persons.

Since Art. III,2 of the 1987 constitution is almost verbatim from the United States constitution, the SC may consider US Fed. SC cases as likewise doctrinal in this jurisdiction. Hence, in US cases, the constitutional provision against unreasomable searches and seizure was intended as a restraint upon the activities of the sovereign authority and NOT intended against private persons. If a search was initiated by a private person the provision does not apply since it only proscribes government action. This view is supported by the deliberations by the 1986 Constitutional Commission.

In short, the protection against unreasonable searches and seizures cannot be extended to acts comitted by private individuals so as to bring it within the ambit of alleged unlawful intrusion.

Case at bar will show that it was Job Reyes` initiative that perpetrated the search. He opened the packages and took the samples to NBI. All the NBI agents did was to observe and look in plain sight. This did not convert it to a search as contemplated by the constitution.

2. Yes, since the search was valid, the evidence from therein is admissible evidence.

Art.III [2], on the admissibility of evidence in violation of the right against unreasonable searches and seizures, likewise applies only to the government and its agencies and not to private persons.

(U.S. cases cited: Burdeau v. McDowell  (256 us 465 [1921], state v. Bryan (457 p 2d 661 [1968], Walker v. state (429 s.w 2d 121 [1969]), Barnes v. us (373 F 2d 517  [1967]), Chadwick v. state (329 sw 2d 135).

VALID WARRANTLESS SEARCH AND SEIZURE:

1.            Search made incidental to a valid arrest

a.            Moreno vs. Ago Chi, 12 Phil. 439

b.            PEOPLE VS. ANG CHUN KIT, 251 SCRA 660

c.            PEOPLE VS. LUA, 256 SCRA 539

d.            PEOPLE VS. Figueroa, 248 SCRA 679

e.            NOLASCO VS. PANO, 139 SCRA 541 (A search incidental to a valid arrest must be done at the place where the accused is arrested. As such, if  accused was arrested while inside a jeepney, there is no valid search incidental to a valid arrest if she will be brought to her residence and thereafter search the said place)

f.             ESPANO VS. CA, 288 SCRA 588 (If the accused was arrested in the street during a buy-bust operation, the search of his house nearby is not a valid search incidental to a valid arrest)

PEOPLE VS. GO, 354 SCRA 338

Where the gun tucked in a person’s waist is plainly visible to the police, no search warrant is necessary and in the absence of any license for said firearm, he may be arrested at once as he is in effect committing a crime in the presence of the police officers. No warrant is necessary in such a situation, it being one of the recognized exceptions under the Rules.

As a consequence of the accused’s valid warrantless arrest inside the nightclub, he may be lawfully searched for dangerous weapons or anything which may be used as proof of the commission of an offense, without a search warrant in accordance with Section 12, Rule 126. This is a valid search incidental to a lawful arrest.

In fact, the subsequent discovery in his car which was parked in a distant place from where the illegal possession of firearm was committed [after he requested that he will bring his car to the Police Station after his warrantless arrest) , of a drug paraphernalia and shabu, CANNOT BE SAID TO HAVE BEEN MADE DURING AN ILLEGAL SEARCH. As such, the items do not fall under the exclusionary rule and the unlicensed firearms, drug paraphernalia and the shabu, can be used as evidence against the accused.

2.            Search of moving vehicles

a.            Carrol vs. US, 267 US 132

b.            PEOPLE VS. LO HO WING, et al.

(G.  R.  No. 88017) January 21, 1991

c.            MUSTANG LUMBER VS. CA, 257 SCRA 430

d.            PEOPLE VS. CFI, 101 SCRA 86

e.            PEOPLE VS. MALMSTEDT198 SCRA 401

f.             PEOPLE VS. LO HO WING, 193 SCRA 122

FACTS:

In July 1987, the Special Operations Group of the CIS received a tip from one of its informers about an organized group engaged in importation of illegal drugs and smuggling of contraband items. To infiltrate the crime syndicate, they recruited confidential men and “deep penetration agents” under OPLAN SHARON 887. One such agent was Reynaldo Tia  (the dicharged/accused). As an agent, he submitted regular reports of undercover activities of suspected syndicates. CAPTAIN PALMERA, head of oplan sharon 887, in turned informed the Dan

gerous Drugs Board of Tia’s activities.

Tia was introduced to his co-accused Lim Cheng Huat by another agent named George. Lim wanted a male travelling companion for his business trips abroad. Tia offered his services and was hired by Lim. Later, Tia was introduced to Peter Lo (alias of accused/appellant Lo Ho Wing), the later turning out to be Tia’s intended companion.

Appellant Lo Ho Wing and Tia left for Hongkong on October 4, 1987. Tia telephoned Capt. Palmera that they would return to the Philippines on October 6. From Hongkong, the two proceeded to Guangzhou in mainland China. There, appeallant Lo Ho Wing bought six (6) cans of tea.Tia saw these 6 bags when they were opened for examination. That evening, they went to Lo Ho Wing’s room and he saw two other men with him. One was fixing the tea bags, while the other was burning a substance on a piece of aluminum foil using a lighter. Appellant Lo Ho Wing joined the second man and sniffed the smoke emitted by the burning substance. When Tia asked Lo Ho Wing what cargo they would bring to Manila, the latter replied that they would be bringing Chinese drugs.

The next day en route to Manila, customs examiners inspected the bags containing the tin cans of tea. Since the bags were not closely examined, appellant Lo Ho Wing and Tia were cleared. In Manila, They were met by Lim Cheng Huat. Appelant Lo Ho Wing and Tia boarded a taxi from the airport and loaded their luggage in the taxi’s compartment. Lim Cheng Huat followed them in another taxi.

Meamwhile, a team composed by Capt. Palmera positioned themselves in strategic areas around the airport. The CIS men who first saw Lo Ho and Tia followed them. Along Imelda Avenue, the CIS car overtook the taxi ridden by Lo Ho Wing and Tia , forcing the taxi driver to stop his vehicle. The CIS team asked  the taxi driver to open the baggage compartment. The CIS team asked permission to search their luggage.

A tin can of tea was taken out of the compartment. Sgt. Cayabyab of the CIS pried the lid open  and pressed it in the middle to pull out the contents. Crystalline white powder resmbling crushed alum came out. Suspecting the crystalline powder to be a dangerous drug, he had the three travelling bags opened for inspection. All the bags threshed out a total of six tin cans. Tia and appellant were taken to the CIS headquarters for questioning. Meanwhile, the second taxi carrying Lim Cheng Huat sped in attempt to escape. However, they were later captured.

Samples from the bag tested positive for metamphetamine. The three suspects were indicted for violating Art. III, sec.15 of the Dangerous Drug Act. Appellant Lo Ho Wing and Lim Cheng Huat were sentenced to suffer life imprisonment and to pay a fine of P25,000 each. Reynaldo Tia was discharged as a state witness. The trial court gave full credence to the testimonies of government agents since the presumption of regularity in the performance of official duties were in their favor.

ISSUES:

1.  Was the warrantless search valid?

2. Are the effects taken admissible as evidence?

HELD:

1. This is a case of search on a moving vehicle which is one of the well-known exceptions to the valid warrantless search and seizure. To stilol get a search warrant from a judge would allow the accused go scot-free.

2. Since the search and seizure are valid, the evidence obtained is admissible as evidence in any proceeding.

3.            Seizure of goods concealed to avoid duties/taxes (Valid)

a.            Papa vs. Mago, 22 SCRA 857

b.            Pacis vs. Pamaran, 56 SCRA 16

c.            HIZON VS. CA, 265 SCRA 517

d.            PEOPLE VS. QUE, 265 SCRA 721

4.            Seize of evidence in plain view

a.            Harris vs. US, 390 US 234

b.            PEOPLE VS. DAMASO, 212 SCRA 547

c.            PEOPLE VS. VELOSO, 252 SCRA 135

d.            PEOPLE VS. LESANGIN, 252 SCRA 213

5.            When there is waiver of right or gives his consent;

a.            De Garcia vs. Locsin, 65 Phil. 689

b.            Lopez vs. Commissioner, 65 SCRA 336

c.            PEOPLE VS. DAMASO, 212 SCRA (In order that there is a valid waiver to a warrantless search, the waiver or consent  should be given by the person affected, not just anybody. Example: The landlady could not give a valid consent to the search of a room occupied by a tenant. Said tenant himself should give the consent in order to be valid. The doctrine in Lopez vs. Commissioner to the effect that it could be given by any occupant of a hotel room being rented by the respondent is deemed abandoned)

d.            VEROY VS. LAYAGUE, 210 SCRA 97. (If the owner of the house allowed the policemen to enter his house because they are searching for rebel soldiers but when inside the house, they instead seized an unlicensed firearm, there is no consent to a warrantless search)

6.            STOP AND FRISK.

a.            People vs. Mengote, June, 1992

b.            PEOPLE VS. POSADAS, 188 SCRA 288

c.            MANALILI VS. PEOPLE, October 9, 1997. (The policemen saw several suspicious looking men at dawn who ran when they went near them. As the policemen ran after them, an unlicensed firearm was confiscated. The search is valid)

d.            MALACAT VS. CA, 283 SCRA 159. (Mere suspicions not sufficient to validate warrantless arrest)

6. EDDIE GUAZON, ET AL. VS. MAJ. GEN. RENATO DE VILLA, ET AL., GR NO. 80508, January 30, 1990

Warrantless searches;

 “zonings” and “saturation drives”

Section 17, Art. VII of the Constitution

Gutierrez, Jr.,  J.

Facts:

This is a petition for Prohibition with preliminary injunction to prohibit military and police officers from conducting “Areal target zonings” or “saturation drive” in Metro Manila particularly in places where they suspect that the subversives are hiding. The 41 petitioners claim that the saturation drives conducted by the military is in violation of their human rights because with no specific target house in mind, in the dead of the night or early morning hours, police and military officers without any search warrant cordon an area of more than one residence and sometimes the whole barangay. Most of them are in civilian clothes and w/o nameplates or identification cards; that the raiders rudely rouse residents from their sleep by banging on the walls and windows of their homes, shouting, kicking their doors open (destroying some) and ordering the residents to come out; the residents are herded like cows at the point of high powered guns, ordered to strip down to their briefs and examined for tattoo marks; that while examination of the bodies of the men are being conducted, the other military men conduct search and seizures to each and every house without civilian witnesses from the neighbors; some victims complained that their money and other valuables were lost as a result of these illegal operations.

The respondents claim that they have legal authority to conduct saturation drives under Art. VII, Sec. 17 of the Constitution which provides:

The respondents would want to justify said military operation  on the following constitutional provisions:

     The President shall be the Commander-in-Chief of all the armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion

x x x x x x

The President shall have control of all the executive departments, bureaus and offices. He shall ensure that the laws are faithfully executed.

Held:

There can be no question that under ordinary circumstances, the police action of the nature described by the petitioners would be illegal and blatantly violative of the Bill of Rights. If the military wants to flush out subversive and criminal elements, the same must be consistent with the constitutional and statutory rights of the people. However, nowhere in the Constitution can we see a provision which prohibits the Chief Executive from ordering the military to stop unabated criminality, rising lawlessness and alarming communist activities. However, all police actions are governed by the limitations of the Bill of Rights. The government cannot adopt the same reprehensible methods of authoritarian systems both of the right and of the left. This is so because Art. III, Section 3 of the Constitution is very clear as explained in Roan vs. Gonzales, 145 SCRA 687 and Century Fox vs. Court of Appeals, 164 SCRA 655. Also, it must be pointed out that police actions should not be characterized by methods that offend one’s sense of justice (Rochin vs. California, 342 US 165).

The Court believes it highly probable that some violations were actually committed. But the remedy is not to stop all police actions, including the essential and legitimate ones. A show of force is sometimes necessary as long as  the rights of people are protected and not violated. However, the remedy of the petitioners is not an original action for prohibition since not one victim complains and not one violator is properly charged. It is basically for the executive department and the trial courts. The problem is appropriate for the Commission of Human Rights.

The petition was therefore remanded to the Regional Trial Courts of Manila, Malabon and Pasay City where the petitioners may present evidence supporting their allegations so that the erring parties may be pinpointed and prosecuted. In the meantime, the acts violative of human rights alleged by the petitioners as committed during the police actions are ENJOINED until such time as permanent rules to govern such actions are promulgated.

********************

Cruz, Padilla and Sarmiento, JJ. , Dissenting

The ruling of the majority that the petitioners are not proper parties is a specious pretext for inaction. We have held that technical objections may be brushed aside where there are constitutional questions that must be met (RODRIGUEZ VS. GELLA, 92 PHIL. 603; TOLENTINO VS. COMELEC, 41 SCRA 702; PHILCONSA VS. JIMENEZ, 65 SCRA 479; EDU VS. ERICTA, 35 SCRA 481; GONZALES VS. COMELEC, 27 SCRA 835; LAGUNZAD VS. CA, 154 SCRA 199; DEMETRIA VS. ALBA,148 SCRA 208). Lozada was in fact an aberration.

Where liberty is involved, every person is a proper party even if he may not be directly injured. Each of us has a duty to protect liberty and that alone makes him a proper party. It is not only the owner of a burning house who has the right to call the firemen.

Section 2, Art. III of the constitution is very clear: Unreasonable searches and seizures of whatever nature and for whatever purpose is prohibited.

Saturation drives are NOT AMONG THE ACCEPTED INSTANCES WHEN A SEARCH OR AN ARREST MAY BE MADE WITHOUT A WARRANT. THEY COME UNDER THE CONCEPT OF  THE FISHING EXPEDITIONS STIGMATIZED BY LAW AND DOCTRINE X X X I submit that this court should instead categorically and emphatically that these saturation drives are violative of human rights and individual liberty and should be stopped immediately. While they may be allowed in the actual theater of military operations against the insurgents, the Court should also make it clear that Metro Manila is not such a battleground.

7. IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ROBERTO UMIL, ROLANDO DURAL and RENATO VILLANUEVA. MANOLITA UMIL and NICANOR DURAL, FELICITAS SESE VS. FIDEL RAMOS, ET AL. and companion cases, G.R. No. 81567, July 9, 1990 (An NPA may be arrested without warrant while sleeping or being treated in a hospital because his being a communist rebel is a continuing crime)

h. If the judge finds that there’s probable cause, must he issue a warrant of arrest as a matter of course? See the distinctions.

Read:

1.            SAmulde vs. Salvani, September 26,  1988 (No because a warrant is issued in order to have jurisdiction of the court over the person of an accused and to assure the court of his presence whenever his case is called in court. As such, if the court believes that the presence of the accused could be had even without a warrant of arrest, then he may not issue said warrant. Note: This case involves a minor offense)

2.            GOZO VS. TAC-AN, 300 SCRA 265. If the offense committed  is a serious one like that obtaining in this case for murder, the  Judge must issue a warrant of arrest after determining the existence of probable cause)

i. Searching questions

Read:

DR. NEMESIO PRUDENTE VS. THE HON. EXECUTIVE JUDGE ABELARDO M. DAYRIT, RTC 33, Manila & People of the Philippines, GR No. 82870, December 14, 1989 (En Banc)

Search and seizure; requirements/requisites of a valid search warrant; searching questions

Padilla, J.

This is a petition to annul and set aside the Order of respondent Judge DENYING the motion of the petitioner to quash Search Warrant No. 87-14 as well as its Order denying the petitioner’s Motion for Reconsideration.

Facts:

1. On October 31, 1987, P/Major Alladin Dimagmaliw, Chief of the Intelligence Special Action Division (ISAD) of the Western Police District (WPD) filed with the Regional Trial Court of Manila, Branch 33, presided by the respondent Judge, an application for the issuance of a Search Warrant for violation of PD 1866 against the petitioner;

2. In his application for search warrant, P/Major Dimagmaliw alleged that:

“1. That he has been informed and has good and sufficient reasons to believe that NEMESIO PRUDENTE who may be found at the Polytechnic University of the Philippines x x x has in his control or possession firearms, explosives, hand grenades and ammunition intended to be used as the means of committing an offense x x x;

“2. That the undersigned has verified the report and found it to be a fact x x x “.

In support of said application, P/Lt. Florencio Angeles executed a “Deposition of Witness dated October 31, 1987 .

3. On November 1, 1987, a Sunday and All Saints Day, the search warrant was enforced by some 200 WPD operatives led by Col. Edgar Dula Torre and Major Maganto;

4. On November 2, 1987, Ricardo Abando, a member of the searching team executed an affidavit alleging that he found in the drawer  of a cabinet inside the wash room of Dr. Prudente’s office a bulging brown envelope with three live fragmentation hand grenades separately with old newspapers;

5. On November 6, 1987, the petitioner moved to quash the search warrant on the grounds that:

a. the complainant’s lone witness, Lt. Angeles had no personal knowledge of the facts which formed the basis for the issuance of the search warrant;

b. the examination of said witness was not in the form of searching questions and answers;

c. the search warrant was a general warrant, for the reason that it did not particularly describe the place to be searched and that it failed to charge one specific offense; and

d. the warrant was issued in violation of Circular No. 19 of the Supreme Court in that the complainant failed to allege that the issuance of the search warrant on a Saturday was urgent.

6. On March 9, 1986, the respondent judge denied the motion to quash and on April 20, 1988, the same judge denied petitioner’s motion for reconsideration. Hence this petition.

Issue:

Was the Search Warrant issued by the respondent judge valid? Was there probable cause?

Held:

a. For a valid search warrant to issue, there must be probable cause, which is 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. The probable cause must be in connection with one specific offense and the judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath, the complainant and the witnesses he may produce, on facts personally known to them and attach to the record their sworn statements together with any affidavits submitted.

The “probable cause” for a valid search warrant, has been 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 objects sought in connection with the offense are in the place sought to be searched”. (Quintero vs. NBI, June 23, 1988). This probable cause must be shown to be within the personal knowledge of the complainant or the witnesses he may produce and not based on mere hearsay. (P. VS. SY JUCO, 64 PHIL. 667; ALVAREZ VS. CFI, 64 PHIL. 33; US VS. ADDISON, 28 PHIL. 566).

In his affidavit, Major Dimagmaliw declared that “he has been informed” that Nemesio Prudente “has in his control and possession” the firearms and explosivees described therein, and that he “has verified the report and found it to be a fact.” On the other hand, Lt. Angeles declared that as a result of continuous surveillance for several days, they “gathered information’s from verified sources” that the holders of said firearms and explosives are not licensed t possess them. It is clear from the foregoing that the applicant and his witness HAD NO PERSONAL KNOWLEDGE OF THE FACTS AND CIRCUMSTANCES which became the basis for issuing the questioned search warrant, but acquired knowledge thereof only through information from other sources or persons.

Despite the fact that Major Dimagmaliw stated in his affidavit that “he verified the information he had earlier received and found it to be a fact, YET THERE IS NOTHING IN THE RECORD TO SHOW OR INDICATE HOW AND WHEN SAID APPLICANT VERIFIED THE EARLIER INFORMATION ACQUIRED BY HIM AS TO JUSTIFY HIS CONCLUSION. He might have clarified this point if there had been searching questions and answers, but there were none. In fact, the records yield no questions and answers, whether searching or not, vis-a-vis the said applicant.

In ALVAREZ VS. CFI, 64 PHIL. 33, it was held that the following test must be complied with in an application for search warrant or in a supporting deposition based on personal knowledge or not-

“The true test of sufficiency of a deposition or affidavit to warrant issuance of a search warrant is whether it was 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 of a search warrant and/or his witnesses, not of the facts merely reported by a person whom one considers to be reliable.”

Tested by the above standards, the allegation of the witness, Lt. Angeles, do not come up to the level of facts based on his personal knowledge so much so that he cannot be held liable for perjury for such allegations in causing the issuance of the questioned search warrant.

Besides, respondent judge did not take the deposition of the applicant as required by the Rules of Court. As held in Roan vs. Gonzales, 145 SCRA 694, “mere affidavits of the complainant and his witnesses are thus insufficient. The examining judge has to take the depositions in writing of the complainant and the witnesses he may produce and attach them to the record.”

b. There was also no searching questions asked by the respondent judge because as shown by the record, his questions were too brief and short and did not examine the complainant and his witnesses in the form of searching questions  and answers. On the contrary, the questions asked were leading as they called for a simple “yes” or “no” answer. As held in Quintero vs. NBI, June 23, 1988, “the questions propounded are not sufficiently searching to establish probable cause. Asking of leading questions to the deponent in an application for search warrant and conducting of examination in a general manner would not satisfy the requirements for the issuance of a valid search warrant.”

The Court avails of this decision to reiterate the strict requirements for determination of probable cause in the valid issuance of a search warrant as enunciated in earlier cases. True, this requirements are stringent but the purpose is to assure that the constitutional right of the individual against unreasonable search and seizure shall remain both meaningful and effective.

c. The rule is, that a description of a place to be searched is sufficient if the officer with the warrant can with reasonable effort ascertain and identify the place intended (P VS. VELOSO, 48 PHIL. 180). In the case at bar, the warrant described the place to be searched as the premises of the PUP, more particularly the offices of the Department of Science and Tactics as well as the Office of the President, Nemesio Prudente.

There is also no violation of the “one specific offense” requirement considering that the application for a search warrant explicitly described the offense: illegal possession of firearms and ammunitions under PD 1866.

d. CIRCULAR NO. 19 OF THE SUPREME COURT merely provides for a guideline, departure from which would not necessarily affect the validity of the search warrant provided the constitutional requirements are complied with.

a.            HUBERT WEBB VS. DE LEON, 247 SCRA 650

Read also:

1. Alvarez vs. CFI, 64 Phil. 33 (When the applicant is basing his knowledge from an informant, the same is not valid)

2. Luna vs. Plaza, 26 SCRA 313

3. De Mulata vs. Irizari, 62 SCRA 210

4. Marinas vs. Siochi, 104 SCRA 423

5. Roan vs. Gonzales, 145 687

6. Mata vs. Bayona, 128 SCRA 388 (Depositions of the applicants and witnesses should be attached to the record of the case)

7. Corro vs. Lising, 137 SCRA 541

8. Nolasco vs Pano, 147 SCRA 509

9. Burgos vs. Chief of Staff, 133 SCRA 800

10. P. vs. Burgos, September 14,1986

11. P. vs. Aminnudin Y Ahni, July 6,1988

12. Ponsica vs. Ignalaga, July 31,1987 (When the statements in the affidavits of witnesses are mere generalities, mere conclusions of law, and not positive statements of particular acts, the warrant is not valid)

13. Aberca vs. Ver, April 15,1988

2.            Panganiban vs. Cesar, 159 SCRA 599

3.            PENDON VS. CA, November 16, 1990. (When the questions asked to the applicant for a search warrant was pre-typed, the same is not valid since there could have been no searching questions)

j. Warrantless searches and seizures–when valid or not.

Read:

1. RICARDO VALMONTE VS. GEN RENATO DE VILLA,              GR No. 83988, September 29, 1989

Warrantless searches and seizures;

validity of checkpoints

Padilla, J.

Facts:

1. On January 20, 1987, the National Capital Region District Command (NCRDC) was activated with the mission of conducting security operations within its area of responsibility for the purpose of maintaining peace and order. As part of its duty to maintain peace and order, the NCRDC installed checkpoints in various parts of Valenzuela, Metro Manila.

Petitioners claim that because of these checkpoints, the residents of Valenzuela, MM are worried of being harassed and of their safety being placed at the arbitrary, capricious and whimsical disposition of the military authorities manning the checkpoints considering that their cars and vehicles are being subjected to regular searches and check-ups, especially at night or dawn, without the benefit of a search warrant and/or court order.

2. On July 9, 1988 at dawn, the apprehensions of the residents of Valenzuela increased because Benjamin Parpon, the supply officer of the Municipality of Valenzuela was gunned down in cold blood by the military men manning the checkpoints for ignoring or refusing to submit himself to the checkpoint and for continuing to speed off inspite of several warning shots fired in the air.

Issue:

Whether or not the existence of said checkpoints as well as the periodic searches and seizures made by the military authorities without search warrant valid?

Held:

Petitioners’ concern for their safety and apprehension at being harassed by the military manning the checkpoints are not sufficient grounds to declare the checkpoints as per se illegal.

Not all searches and seizures are prohibited. Those which are reasonable are not forbidden. A reasonable search is not to be determined by any fixed formula but is to be resolved according to the facts of each case.

Where, for example, the officer merely draws aside the curtain of a vacant vehicle which is parked on a public fair grounds (People vs. Case, 190 MW 289), or simply looks into a vehicle (State vs. Gaina, 97 SE 62), or flashes a light therein (Rowland vs. Commonwealth, 259 SW 33), these do not constitute unreasonable search.

The setting up of checkpoints in Valenzuela, Metro Manila may be considered as security measure to effectively maintain peace and order and to thwart plots to destabilize the government.  In this connection, the Court may take judicial notice of the shift to urban centers and their suburbs of the insurgency movement, so clearly reflected in the increased killings in cities of police and military men by NPA’s “sparrow units,” not to mention the abundance of unlicensed firearms.

BETWEEN THE INHERENT RIGHT OF THE STATE TO PROTECT ITS EXISTENCE AND PROMOTE PUBLIC WELFARE AND AN INDIVIDUAL’S RIGHT AGAINST A WARRANTLESS SEARCH WHICH IS HOWEVER REASONABLY CONDUCTED, THE FORMER SHALL PREVAIL.

True, the manning of these checkpoints by the military is susceptible of abuse by the men in uniform, in the same manner that all governmental power is susceptible to abuse. BUT , AT THE COST OF OCCASIONAL INCONVENIENCE, DISCOMFORT AND EVEN IRRITATION TO THE CITIZEN, THE CHECKPOINTS DURING THESE ABNORMAL TIMES ARE PART OF THE PRICE WE PAY FOR AN ORDERLY SOCIETY AND PEACEFUL COMMUNITY.

Finally, it must be emphasized that on July 17, 1988, the military checkpoints in Metro Manila were temporarily lifted and a review and refinement of the rules in the conduct of the police and military manning the checkpoints upon order of the NCRDC Chief.

Cruz and Sarmiento, JJ., dissenting:

The bland declaration by the majority that individual rights must yield to the demands of national security ignores the fact that the Bill of Rights was intended precisely to limit the authority of the State even if asserted on the ground of national security.

RESOLUTION  ON  THE MOTION  FOR RECONSIDERATION, JUNE  15, 1990

Very  Important:

     The Supreme Court in its Resolution of the Motion for Reconsideration dated 15 June, 1990, held that military and police checkpoints are not illegal as these measures to protect the government and safeguards the lives of the people. The checkpoints are legal as where the survival of the organized government is on the balance, or where the lives and safety of the people are in grave peril. However, the Supreme Court held further that the military officers manning the checkpoints may conduct VISUAL SEARCH ONLY, NOT BODILY SEARCH.

Read also the RESOLUTION  ON  THE MOTION  FOR RECONSIDERATION dated JUNE 15, 1990, 185 SCRA 665

Read also:

1-a. Rizal Alih vs. Gen. Castro, June 23,1987

1-b. P s. Cendana, October 17, 1990

1-c. P. vs. Castiller, August 6, 1990

1-d. P. vs. Olaes, July 30, 1990

2. Papa vs. Mago, 22 SCRA 857

3. Roldan vs. Arca, 65 SCRA 336

4. P. vs. CFI, 101 SCRA 86

5. Pacis vs. Pamaran, 56 SCRA 16

6. Lopez vs. Commisioner, 65 SCRA 336

7. P vs. Cruz, 165 SCRA 135

8. Nolasco vs. Pano, 147 SCRA 509 & 139 SCRA              152

9. P vs. Claudio, 160 SCRA 646 (There is a valid warrantless search if a NARCOM officer arrests the person who owns a bag which contains marijuana which he found out when he smelled the same. Here , there is a probable cause since he was personal knowledge due to his expertise on drugs)

2.            PEOPLE VS. DEL ROSARIO, July 10, 1994. (After the informant was given by the police the amount of P100.00, he went to buy marijuana from the accused then return to the police headquarters with said article. Thereafter, the policemen went to arrest the accused without warrant. The arrest is not valid since it does not fall under Section 5 Rule 113)

Likewise, after securing a search warrant authorizing the seizure of shabu and its paraphernalia and instead, an unlicensed firearm was seized instead, said gun is inadmissible in evidence.

k. May a non-judicial officer issue a warrant of  arrest? (NO)

Read:

1.            Harvey vs. Miriam Defensor-Santiago, June 26,1988

2.            Moreno vs. Vivo, 20 SCRA 562

3.            Lim vs. Ponce de Leon, 66 SCRA 299

4.            HORTENCIA SALAZAR VS. HON TOMAS ACHACOSO, G.R. NO. 81510, March 14, 1990 (En banc)

5.            Presidential Anti_Dollar Salting Task Force vs.  CA, March 16, 1989

l. Properties subject to seizure

Read:

1. Sec. 2, Rule 126,1985 Rules on Crimial Procedure, as amended

2. ESPANO VS. CA, 288 SCRA 558

m. Warrantless searches and arrests

Read:

1. P. vs. Bati, August 27, 1990

1-a. Manuel et al., vs. Judge Tirso Velasco, GR No. 84666, February 9, 1989

1-b. Garcia-Padilla vs. Enrile,121 SCRA 47 &               137 SCRA 647

1-c. P. vs. Maspil, Jr., August 20, 1990 (Compare with P. vs. Aminnudin, July 6, 1988, supra)

1-d. Posadas vs. CA, Aug. 2, 1990

1-e. P. vs. De la Cruz

1-f. P. vs. ortiz, Dec. 3, 1990

1-g. Rolito Go vs. CA, Feb. 11, 1992

1-h. People vs. Mati, January 18, 1991

2. Morales vs. Ponce Enrile, 121 SCRA 538

2-a. P vs. Burgos, 144 SCRA 1

2-b. People vs. de la Cruz, 184 SCRA 416

2-c. Gatchalian vs. Board, May 31, 1991

2-d. People vs. Sucro, March 18, 1991

2-e. PEOPLE VS. SOLAYAO, 262 SCRA 255

2-f. PEOPLE VS. CUISON, 256 SCRA 325

2-g. PEOPLE VS. DAMASO, 212 SCRA 547

2-h. OPOSADAS VS. CA, 258 SCRA 188

2-i. PEOPLE VS. JUATAN, 260 SCRA 532 (Buy-bust operation)

3. Sec. 6, Rule 113, 1985 Rules on Criminal Procedure, as amended

n. Effect posting bail or entering a plea during the arraignment, if the arrest was  illegal. (The alleged illegality of the arrest is deemed waived upon posting of the bond by the accused)

PEOPLE VS. GALVEZ, 355 SCRA 246

Mendoza, J.

           The policeman  arrested the accused-appellant on the basis solely of what Reynaldo Castro had told him and not because he saw the accused-appellant commit the crime charged against him. Indeed, the prosecution admitted that there was no warrant of arrest issued against accused-appellant when the latter was taken into custody. Considering that the accused-appellant was not committing a crime at the time he was arrested  nor did the arresting officer have any personal knowledge of facts indicating that accused-appellant committed a crime, his arrest without a warrant cannot be justified.

However, by entering a plea of not guilty during the arraignment, the accused-appellant waived his right to raise the issue of illegality of his arrest. IT IS NOW SETTLED THAT OBJECTION TO A WARRANT OF ARREST OR THE PROCEDURE BY WHICH A COURT ACQUIRES JURISDICTION OVER THE PERSON OF AN ACCUSED MUST BE MADE BEFORE HE ENTERS HIS PLEA, OTHERWISE, THE OBJECTION IS DEEMED WAIVED. THE FACT THAT THE ARREST WAS ILLEGAL DOES NOT RENDER THE SUBSEQUENT PROCEEDINGS VOID AND DEPRIVE THE STATE OF ITS RIGHT TO CONVICT THE GUILTY WHEN ALL THE FACTS POINT TO THE CULPABILITY OF THE ACCUSED.

Read:

1.            Callanta vs. Villanueva, 77 SCRA 377

2.            PEOPLE VS. NAZARENO, 260 SCRA 256

3.            FILOTEO VS. SANDIGANBAYAN, 263 SCRA 222

4.            PEOPLE VS. NAZARENO, 260 SCRA 256

5.            PEOPLE VS. LAPURA, 255 SCRA 85

6.            PEOPLE VS. SILAN, 254 SCRA 491

o . Penalty for illegal arrest

Read:

Palon vs. NAPOLCOM, May 28, 1989

p. Judicial pronouncements on illegally seized          evidence, 106 SCRA 336

q. The exclusionary rule,155 SCRA 494

n. What is the status of a document obtained through subpoena?

Read:

Dianalan vs. Pros., Office of the Tanodbayan, Nov. 27, 1990

r. Search warrant for pirated video tapes

1.            Century Fox vs. CA, 164 SCRA 655 (The master copy of the allegedly pirated tape should be presented before the judge in order to convince him of the existence of probable cause)

2.            COLUMBIA PICTURES VS. CA, 261 SCRA 144

LATEST CASES ON SEARCH AND SEIZURES

UY VS. BIR, 344 SCRA 36

          The following are the requisites of a valid search warrant:

1.            The warrant must be issued upon probable cause;

2.            The probable cause must be determined by the judge himself and not by applicant or any other person;

3.            In determining probable cause, the judge must examine under oath and affirmation the complainant and such  witnesses as the latter may produce; and

4.            The warrant issued must particularly describe the place to be searched and the person or things to be seized.

            A description of the place to be searched  is sufficient if the officer with the warrant can, with reasonable effort, ascertain and identify the place intended and distinguish it from other places in the community. Search warrants are not issued on loose, vague or doubtful basis of fact, nor on mere suspicion or belief. In this case, most of the items listed in the warrants fail to meet the test of particularity, especially since the witness had furnished the judge photocopies of the documents sought to be seized. THE SEARCH WARRANT IS SEPARABLE, AND THOSE ITEMS NOT PARTICULARLY DESCRIBED MAY BE CUT OFF WITHOUT DESTROYING THE WHOLE WARRANT.

PEOPLE VS. VALDEZ, 341 SCRA 25

            The protection against unreasonable search and seizure covers both innocent and guilty alike against any form of highhandedness of law enforces.

            The “plain view” doctrine,  which may justify a search without warrant, APPLIES ONLY WHERE THE POLICE OFFICER IS NOT SEARCHING FOR EVIDENCE AGAINS THE ACCUSED, BUT INADVERTENTLY COMES ACROSS AN INCRIMINATING OBJECT.

            Just because the marijuana plants were found in an unfenced lot does nor prevent the appellant from invoking the protection afforded by the Constitution. The right against unreasonable search and seizure is the immunity of one’s person, which includes his residence, papers and other possessions. For a person to be immune against unreasonable searches and seizures, he need not be in his home or office, within a fenced yard or private place.

PEOPLE VS. BAULA, 344 SCRA 663

            In case of consented searches or waiver of the constitutional guarantee against obtrusive searches, it is fundamental that to constitute waiver, IT MUST APPEAR THAT THE RIGHT EXISTS; THE PERSONS INVOLVED HAD KNOWLEDGE, EITHER ACTUAL OR CONSTRUCTIVE, of the existence of such right. The third condition did not exist in the instant case. Neither was the search incidental to a valid warrantless arrest. (PEOPLE VS. FIFUEROA, July 6, 2000) An alleged consent to a warrantless search and seizure cannot be based merely on the presumption of regularity in the performance of official duty. THE PRESUMPTION BY ITSELF, CANNOT PREVAIL AGAINST THE CONSTITUTIONALLY PROTECTED RIGHTS OF AN INDIVIDUAL, AND ZEAL IN THE PURSUIT OF CRIMINALS CANNOT ENNOBLE THE USE OF ARBITRARY METHODS THAT THE CONSTITUTION ITSELF ABHORS.

Reference:

Constitutional Law Reviewer by Atty. Larry D. Gacayan (2008)

College of Law

University of the Cordilleras

Constitutional Law Chapter III – The Equal Protection Clause

CONSTITUTIONAL LAW

CHAPTER III – THE EQUAL PROTECTION CLAUSE

…nor shall any person be denied the equal protection of the laws.

1. The scope of the equal protection clause, 95 SCRA      420

2.  Equal protection of the law, 13 SCRA 266

3. Requisites for a valid classification-

Read:

1.            People vs. Cayat, 68 Phil. 12

a.            There must be real and substantial distinctions;

b.            It must be germane tot he purposes of the law;

c.            It must not be limited to existing conditions only; and

d.            It must apply equally to all members of the same class.

2. Read again, Association of Small Landowners vs.  Sec. of Agrarian reform, July 14, 1989

4. Equal protection in general-

Read:

1.            P. vs. Vera, 65 Phil. 56

2.            TIU VS. CA, 301 SCRA 278  (There is real and substantial distinction between business inside  the Subic Special Economic Zone and outside wherein those inside are exempt from other taxes as a result of the policy of the government to accelerate the development of the portion of Subic left by the Americans)

3.            MELDA MARCOS VS. CA, 278 SCRA 843

4.            HIMAGAN VS. PEOPLE, October 7, 1994

The fact that policemen charged with a criminal offense punishable by more than 6 years are to be suspended during the entire duration of the case unlike other government employees is valid since it rests on valid classification because policemen carry weapons and the badge of the law which can be used to harass or intimidate witnesses against them.

2-A  Gumabon vs. Director of Prisons, 37 SCRA 420

2-b. PANFILO LACSON VS. SANDIGANBAYAN, January 20, 1999

2-b-1. BASCO VS. PAGCOR, May 14, 1991

No violation of the equal protection clause if Congress would legalize cock-fighting and horse racing since police power could regulate gambling.

1.            PHILIPPINE JUDGES ASSOCIATION VS. PRADO, November 11, 1993

There is no valid distinction for a law removing the franking privilege of the judiciary while leaving the same to the Executive and Legislative despite the fact that there is considerable volume of mails from the courts. Loss of revenue is not a valid ground unless it would be withdrawn to all government offices.

FRANCISCO TATAD vs.  THE SECRETARY OF DEPARTMENT OF ENERGY, G. R. No. 124360, November 5, 1997

 

EDCEL LAGMAN, JOKER ARROYO, ENRIQUE GARCIA, WIGBERTO TANADA,  FLAG HUMAN RIGHTS FOUNDATION vs. HON. RUBEN TORRES, HON. FRANCISCO VIRAY, PETRON, FILIPINAS SHELL and CALTEX PHILIPPINES, G.R. No. 127867, November 5, 1997.

PUNO, J.

These petitions challenge the constitutionality of Republic Act No. 8180 entitled “An Act Deregulating the Downstream Oil Industry and for Other Purposes”. RA   8180 seeks to end  26 years of  government regulation of the downstream  oil industry.

The facts:

1.            Prior to 1971, no government agency  was regulating the oil industry. New players were free to enter the oil market without any government interference. There were four (4) refining companies at that time.  SHELL, CALTEX, BATAAN REFINING COMPANY and FILOIL MARKETING and six (6) petroleum marketing companies: ESSO, FILOIL, CALTEX, GETTY, MOBIL and SHELL;

2.            In 1971, the country was driven to its knees by the crippling oil crisis and in order to remedy the same,  the OIL INDUSTRY COMMISSION ACT was enacted  REGULATING the oil industry ;

3.            On November 9, 1973, then President Marcos  created the Philippine national Oil Corporation (PNOC) t break the control of the foreigners to the oil industry. It  acquired ownership of ESSO Philippines and Filoil and likewise bought controlling shares of the Bataan Refining Corporation. PNOC then operated under the business name PETRON CORPORATION and for the first time, there was a Filipino presence in the Philippine oil market;

4.            In 1984, Pres. Marcos through section 8 of PD 1956 created the OIL PRICE STABILIZATION FUND (OPSF) to cushion the effects of frequent changes in the price of oil caused by the exchange rate adjustments or increase of the world market prices crude oil and imported petroleum products;

5.            By 1985, only three (3) oil companies were left operating in the country. These are: CALTEX, FILIPINAS SHELL and PNOC;

6.            In May, 1987, Pres. Corazon Aquino signed Executive Order No. 172 creating the ENERGY REULATORY BOARD to regulate the business of importing, exporting, shipping, transporting, processing, refining, marketing and distributing energy resources “WHEN WARRANTED AND ONLY  WHEN PUBLIC NECESSITY REQUIRES”. The Board was empowered to “fix and regulate the prices of petroleum products and other related merchandise;

7.            In March, 1996, Congress enacted RA 8180 deregulating the Oil Industry not later than March, 1997. The law requires that the implementation of the regulation, shall as far as practicable be made at a time WHEN THE PRICES OF CRUDE OIL AND PETROLEUM PRODUCTS IN THE WORLD ARE DECLINING AND WHEN THE EXCHANGE RATE OF THE PESO IN RELATION TO THE US DOLLAR; IS STABLE;

8.            On February 8, 1997, Executive Order No. 372  was issued by President Fidel  Ramos  implementing full deregulation ON THE GROUND THAT THE OPSF FUND HAS BEEN DEPLETED;

9.            The petitioners questioned the constitutionality of RA 8180 on the following grounds:

a.            Section 5 of RA 8180 violates the equal protection clause of the Constitution;

b.            The imposition of different tariff rates does not deregulate the oil industry and even bars the entry of other players in the oil industry but instead effectively protects the interest  of the oil companies with existing refineries. Thus, it runs counter to the objective of the law “to foster a truly competitive market”; The inclusion of  Sec. 5 [b]  providing for tariff differential violates Section 26 [1] of Art. VI of the 1987 Constitution which requires  every law to have only one subject which should be expressed in the title thereof;

c.            Section 15 of RA 8180 and EO No. 392 are unconstitutional  for undue delegation of legislative power to the President and the Secretary of Energy;

d.            EO 392 implementing the full deregulation of the oil industry is unconstitutional since it is arbitrary and unreasonable since it was enacted due to the alleged depletion of the OPSF fund, a condition which is not found in RA No. 8180;

e.            Section 15  of RA 8180  is unconstitutional for it allows the formation of a de facto cartel among three existing oil companies in violation of the Constitution prohibiting against monopolies, combination in restraint of trade and unfair competition.

The provisions of the law being questioned as unconstitutional are Section 5 [b] and Section 15 which provide:

“Section 5 [b] Any law to the contrary notwithstanding and starting with the effectivity of this Act, tariff duty shall be imposed and collected on imported crude oil at the rate of 3% and imported refined petroleum products at the rate of seven (7%) percent, except fuel oil and LPG, the rate for which shall be the same; Provided, that beginning on January 1, 2004, the tariff rate on imported crude oil and refined petroleum products shall be the same; Provided, further, that this provision  may be amended only by an Act of Congress.”

x x x

“Section 15. Implementation of  full deregulation. Pursuant to Section 5 [e] of RA 7638, the DOE, upon approval of the President, implement full deregulation of the downstream oil industry not later than March, 1997. As far as practicable, the DOE shall time the full deregulation when the prices of crude oil and petroleum products in the world market are declining and when the exchange rate of the peso in relation to the US dollar is stable.”

The issues are:

Procedural Issues:

a.            Whether or not the petitions raise justiciable controversy; and

b.            Whether or not  the petitioners  have the standing to question the validity of the subject law and executive order.

Substantive Issues:

a.            Whether or not Section 5 of RA 8180 violates the one title—one subject requirement of the Constitution;

b.            Whether or not Section 5 of RA 8180 violates the equal protection clause of the Constitution;

c.            Whether section 15 violates the  constitutional prohibition on undue delegation of legislative power;

d.            Whether or not EO 392 is arbitrary and unreasonable; and

e.            Whether or not RA 8180 violates the constitutional prohibition against monopolies, combinations in restraint of trade and unfair competition.

HELD:

1.            Judicial power includes not only the duty of the courts to settle controversies involving rights but also the duty to determine  whether or not there has been grave abuse of  discretion amounting to lack or excess of jurisdiction on the part of any agency or branch of the government. The courts, as guardians of the Constitution, have the inherent  authority to determine whether a statute enacted by the legislature transcends the limit imposed by the fundamental law. When the statute violates the Constitution, it is not only the right  of the judiciary to declare such act as unconstitutional and void.

2.            The question of locus standi must likewise fall . As held in KAPATIRAN NG MGA NAGLILINGKOD SA PAMAHALAAN NG PILIPINAS, INC. VS. TAN, it was held that:

“Objections to taxpayer’s suit for lack of sufficient personality, standing, or interest are , however, in the main procedural matters. CONSIDERING THE IMPORTANCE OF THE CASES TO THE PUBLIC, AND IN KEEPING WITH THE COURT’S DUTY TO DETERMINE WHETHER OR NOT THE OTHER BRANCHEDS OF GOVERNMENT HAVE KEPT THEMSELVES WITHIN THE LIMITS OF THE CONSTITUTION AND  THE LAWS AND THAT THEY HAVE NOT ABUSE THE DISCRETION GIVEN TO THEM, THE COURT HAS BRUSHED ASIDE TECHNICALITIES OF PROCEDURE AND HAS TAKEN COGNIZANCE OF THESE PETITIONS.”

There is no disagreement on the part of the parties as to the far-reaching importance of the validity of RA 8180. Thus, there is no good sense in being hyper-technical on the standing of the petitioners for they pose issues which are significant to our people and which deserve our forthright resolution.

3.            It is contended that Section 5[b[ of RA 8180 on tariff differentials violates the Constitutional prohibition requiring every law to have only one subject which should be expressed in its title. We do not concur with this contention. As a policy, the Court has adopted a liberal construction of the one title—one subject rule. We have consistently ruled that the title need not mirror, fully index or catalogue all contents and minute details of a law. A law having a single general subject indicated in the title may contain a number of provisions, no matter how diverse they may be, so long as they are not inconsistent with or foreign to the general subject, and may be considered in furtherance of such subject by providing for the method and means of carrying out the general subject. We hold that Section 5 providing for tariff differential is germane to the subject  of RA 8180 which is the deregulation of the downstream oil industry.

4.            The contention that there is undue delegation of legislative power when it authorized the President to determine when deregulation starts is without merit. The petitioners claim that the phrases “as far as practicable”, “decline of crude oil prices in the world market” and “stability of the peso exchange rate to the US dollar” are ambivalent, unclear and inconcrete in meaning and could not therefore provide the “determinate or determinable standards” which can guide the President in his decision to fully deregulate the oil industry. The power of Congress to delegate the execution of laws has long been settled by this Court in 1916 in the case of COMPANIA GENERAL DE TABACOS DE FILIPINA VS. THE BOARD OF PUBLIC UTILITY COMMISSIONERS WHERE IT WAS HELD THAT:

“The true distinction is between the delegation of power to make the law , which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter, no valid objection can be made.”

wo tests have been  developed to determine whether the delegation of the power to execute laws does not involve the abdication of the power to make law itself. We delineated the metes and bounds of these tests in EASTERM SHIPPING LINES VS. POEA, thus:

There are two accepted tests to determine whether or not there is a valid delegation of legislative power , viz: the completeness test and the sufficiency of standard test. Under the first test, the law must be complete in all its terms and conditions when it leaves the legislative such that when it reaches the delegate, the only thing he will do is enforce it. Under the sufficient standard test, there must be adequate guidelines or limitations in the law to map out the boundaries of the delegate’s authority and prevent the delegation from running riot. BOTH TESTS ARE INTENDED TO PREVENT A TOTAL TRANSFERENCE OF LEGISLATIVE AUTHORITY TO THE DELEGATE, WHO IS NOT ALLOWED TO STEP INTO THE SHOES OF THE LEGISLATURE AND EXERCISE A POWER ESSENTIALLY LEGISLATIVE.”

The validity of delegating legislative power is now a quiet area in our constitutional landscape because such has become an inevitability in light of the increasing complexity of the task of government. In fact, in HIRABAYASHI VS. UNITED STATES, the Supreme Court through Justice ISAGANI CRUZ held that  “even if the law does not expressly pinpoint the standard, THE COURTS WILL BEND BACKWARD TO LOCATE THE SAME ELSEWHERE IN ORDER TO SPARE THE STATUTE; IF IT CAN, FROM CONSTITUTIONAL INFIRMITY.”

5.            EO  No. 392 failed  to follow faithfully the standards set by RA 8180 when it considered the extraneous factor of depletion of the OPSF Fund. The misapplication of this extra factor cannot be justified. The executive is bereft of any right to alter either by addition or subtraction the standards set by RA 8180 for it has no power to make laws. To cede to the executive the power to make laws would invite tyranny and to transgress the separation of powers. The exercise of delegated power is given a strict scrutiny by courts for the delegate is a mere agent whose action cannot infringe the terms of the agency.

6.            Section 19 of Article XII of the Constitution provides:

“The state shall regulate or prohibit monopolies when the public interests so requires. No combinations in restraint of trade or unfair competition shall be allowed.”

A monopoly  is a privilege or peculiar advantage vested in one or more persons or companies, consisting of the exclusive  right or power to carry on a particular business or trade, manufacture a particular article or control the sale or the whole market structure in which one or  only a few firms dominate the total sales of a product or service. On the other hand, a combination in restraint of trade is an agreement or understanding between two or more persons, in the form of contract, trust, pool, holding company, for the purpose of unduly restricting  competition, monopolizing trade and commerce in  a certain commodity, controlling its production, distribution and price or otherwise interfering with freedom of trade without statutory authority. Combination in restraint of  trade refers to means while monopoly refers to the end.

Respondents  aver that the 4% tariff differential is designed to encourage new entrants to invest in refineries. They stress that the inventory requirement is meant to guaranty continuous domestic supply of  petroleum and to discourage fly-by-night operators. They also claim that the prohibition against predatory pricing is intended to protect prospective entrants.

The validity of the assailed provisions of RA 8180 has to be decided in the light of the letter and spirit of Section 19, Art. XII of the Constitution. While the Constitution embraced free enterprise as an economic creed, it did not prohibit per se the operation of monopolies which can, however,  be regulated in the public interest. This distinct free enterprise system is dictated by the need to achieve the goals of our national economy as defined under Section 1, Art. XII of the Constitution which are: more equitable distribution of opportunities, income and wealth; a sustained increase in the amount of goods and services produced by the nation for all, especially the underprivileged. It also calls for the State to protect Filipino enterprises against unfair and trades practices.

The provisions on 4% tariff differential, predatory pricing and inventory requirement blocks the entry of other players and give undue advantage to the 3 oil companies resulting to monopolies or unfair competition. This is so because it would take billions for new players to construct refineries, and to have big inventories. This would effectively prevent new players.

In the case at bar, it cannot be denied that our oil industry is operated and controlled by an oligopoly (dominated by a handful of players) and a foreign oligopoly at that. As the dominant players, SHELL, CALTEX & PETRON boast of  existing refineries of various capacities. The tariff differential of 4% works to their immense advantage. Yet, this is only one edge on tariff differential. THE OTHER EDGE CUTS AND CUTS DEEP IN THE HEART OF THEIR COMPETITORS. IT ERECTS HIGH BARRIERS TO NE PLAYERS. New players in order to equalize must build their refineries worth billions of pesos. Those without refineries had to compete with a higher cost of 4%.They will be competing on an uneven field.

The provision on inventory widens the advantage of PETRON, SHELL AND CALTEX against prospective new players. The three (3) could easily comply with the inventory requirement in view of their numerous storage facilities. Prospective competitors  again find compliance oft his requirement  difficult because of prohibitive cost in constructing new  storage facilities. The net effect would be to effectively prohibit the entrance of new players.

Now comes the prohibition on predatory pricing or “selling or offering to sell any product at a price unreasonably below the industry average cost so as to attract customers to the detriment of the competitors”. According to HOVENKAMP:

“The rationale for predatory pricing is the sustaining of losses today that will give a firm monopoly profits in the future. The monopoly profits will never materialize, however, if the market is flooded with new entrants as soon as the successful predator attempts to raise its price. Predatory pricing will be profitable only if the market contains significant barriers to new entry.”

Coupled with the 4% tariff differential and the inventory requirement, the predatory pricing is a significant barrier which discourage new players to enter the oil market thereby promoting unfair competition, monopoly and restraint of trade which are prohibited by the Constitution.

Reference:

Constitutional Law Reviewer by Atty. Larry D. Gacayan (2008)

College of Law

University of the Cordilleras

________________________

2-d.LACSON VS. SANDIGANBAYAN, January 20, 1999

3. Taxicab Operators vs. BOT, September 30,l982

4. Bautista vs. Juinio,127 SCRA 329

5. Dumlao vs. COMELEC, 95 SCRA 392

6. Villegas vs. Hiu, 86 SCRA 270

7. Ceniza vs. COMELEC, 95 SCRA 763

8. UNIDO vs. COMELEC, 104 SCRA 38

9. Nunez vs. Sandiganbayan, 111 SCRA 433(Read also the dissenting opinion of Justice Makasiar

10. Sison vs. Ancheta, 130 SCRA 654

11. Citizens Surety vs. Puno, 119 SCRA 216

12. Peralta vs. COMELEC, 82 SCRA 30

13. Hawaiian-Phil. Co. vs. Asociacion, 151 SCRA 306

14. Ormoc Sugar Co. vs. Ormoc City, 22 SCRA 603

15. Flores vs. COMELEC, 184 SCRA 484

Constitutional Law Chapter II – Due Process

CONSTITUTIONAL LAW

CHAPTER II— DUE PROCESS

Section 1—NO PERSON SHALL BE DEPRIVED OF LIFE, LIBERTY OR PROPERTY WITHOUT DUE PROCESS OF LAW, NOR SHALL ANY PERSON BE DENIED EQUAL PROTECTION OF THE LAWS.

Kinds of Due Process:

a.            substantive due process—requires the intrinsic validity of the law in interfering with the rights of the person to life, liberty or property. In short, it is to determine whether it has a valid governmental objective like for the interest of the public as against mere particular class.

b.            Procedural due process—one which hears before it condemns as pointed out by Daniel Webster.

Due process is a law which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial (Per Daniel Webster in the DARTMOUTH COLLEGE CASE)

1.            Requisites of “judicial due process”.

a.            BANCO ESPANOL VS. PALANCA, 37 Phil. 921

Requisites:

1.            There must be an impartial court or tribunal clothed with judicial power to hear and decide the matter before it;

2.            Jurisdiction must be lawfully acquired over the person of the defendant or over the property subject of the proceedings;

3.            The defendant must be given the opportunity to be heard;

4.            Judgment must be rendered only after lawful hearing.

a. GALMAN VS. PAMARAN (the 1st case)

b.            IMELDA MARCOS VS. SANDIGANBAYAN, October 6, 1998

IMELDA R. MARCOS VS. SANDIGANBAYAN, G.R. No. 126995, October 6, 1998

Purisima, J.

Facts:

1.            On  June 8, 1984, IMELDA MARCOS and JOSE DANS, as Chairman and  Vice Chairman of the Light Railway Transit Authority (LRTA) entered into a Lease Contract with the Philippine General Hospital Foundation (PGHFI) involving an LRTA property  in Pasay City for P102,760.00 per month for 25 years;

2.            On June 27,1984, the PGHFI subleased the said property for P734,000.00 per month to the Transnational Construction Corporation represented by one Ignacio Jumenez;

3.            After   petitioner’s husband was deposed as President of the Philippines, she and Dans were charged of alleged violation of Section 3 [g] of RA 3019, otherwise known as the Anti-Graft and Corrupt Practices Act before the Sandiganbayan;

4.            After trial , the First Division of the Sandiganbayan failed to comply with the legal requirement that all the 3 justices must be unanimous in its Decision because Justice Garchitorena and Justice Jose Balajadia voted for the conviction of both accused while Justice Narciso Atienza voted to acquit them;

5.            Thereafter, Justice Garchitorena as Presiding Justice issued Administrative Order No. 288-93 constituting a Special Division of  five and designating Justices Augusto Amores and Cipriano del Rosario;

6.            On September 21, 1993, Justice Amores wrote Justice Garchitorena that he be given 15 days his Manifestation. On the same date, however, Justice Garchitorena   dissolved the division of 5 allegedly because he and Justice Balajadia had agreed to the opinion of Justice del Rosario;

7.            On September 24, 1993, a Decision was rendered convicting the  petitioner and Dans of violation of Sec. 3 [g] of RA 3019;

8.            On June 29, 1998, the Third Division of the Supreme Court by a vote of 3-2 affirmed the conviction of the petitioner but acquitted DANS;

9.            Petitioner then filed a Motion for Reconsideration and at the same time prayed that her Motion be heard by the Supreme Court en banc claiming that her right to  due process of law, both  substantive and procedural, was violated:

a.             as a result of the fact that she was convicted as a result of the alleged disparity of the rentals agreed upon with PGHFI and the subsequent sub-lease contract between PGHFI and Transnational Construction Corporation; and

b.            the First Division convicted her after Justice Garchitorena  dissolved the Special Division of 5 after a lunch in a Quezon City restaurant where they agreed to convict her in one case and acquit her in her other cases. The said meeting was attended by another  justice who is not a member of the First Division or the Special Division in violation of the Rules of the Sandiganbayan which requires that sessions of the court shall be done only in its principal office in Manila and that only justices belonging to the division should join the deliberations.

Held:

The petitioner is hereby acquitted.

1. The great disparity between the rental price of the lease agreement signed by the petitioner (P102,760.00 per month)  and the sub-lease rental (P734,000.00 per month) does not necessarily render the monthly rate of P102,760.00 manifestly and grossly disadvantageous to the government in the absence of any evidence using rentals of adjacent properties showing that the rentals in the property subject of the lease agreement  is indeed very low. NO EVIDENCE WHATSOEVER WAS PRESENTED BY THE PROSECUTION REGARDING THE RENTAL RATE OF ADJACENT PROPERTIES.. As such,  the prosecution failed to prove the guilt of the petitioner   reasonable doubt.

2. The court notes likewise the bias and prejudice of Presiding Justice Garchitorena against the petitioner as shown by his  leading, misleading and baseless hypothetical questions of said justice to RAMON F. CUERVO, witness for the petitioner. Said justice asked 179 questions to the witness as against the prosecutor who cross-examined the witness which was 73. Said number of questions could no longer be described as “clarificatory questions”. Another ground therefore for the acquittal of the petitioner is that she was denied IMPARTIAL TRIAL before the Sandiganbayan. This is one reason why the case could no longer be remanded to the Sandiganbayan especially so that the other Sandiganbayan Justices in the Special Division of 5 have retired. There is therefore no compelling reason why the case should still be remanded to the lower court when all the evidence are already with the Supreme Court.

(NOTE: The vote was 9-5 for Acquittal. CJ Narvasa, Justices Regalado, Davide, Jr., Romero, and Panganiban voted for conviction while Justice Vitug was the only Justice who voted for the return of the case to the Sandiganbayan “to allow the corrections of the perceived ‘irregularities’ in the proceedings below.)

c.            DBP VS. CA, January 29, 1999

d.            MATUGUINA VS. CA, 263 SCRA 490

e.            PEOPLE VS. CA, 262 SCRA 452

f.             JAVIER VS. COMELEC, 144 SCRA 194

 

                  JAVIER VS. COMELEC

       G.R. No.L- 68379-812, September 22, 1986

FACTS:

1.   The petitioner Evelio Javier and the private respondent Arturo Pacificador were candidates in Antique for the Batasang Pambansa election in May 1984;

2.   Alleging serious anomalies in the conduct of the elections and the canvass of the election returns, Javier went to the COMELEC to prevent the impending proclamation of his rival;

3.   On May 18, 1984, the Second Division of the COMELEC directed the provincial board of canvassers to proceed with the canvass but to suspend the proclamation of the winning candidate until further orders;

4.   On June 7, 1984, the same Second Division ordered the board to immediately convene and to proclaim the winner without prejudice to the outcome of the petition filed by Javier with the COMELEC;

5.   On certiorari with the S.C. the proclamation made by the Board of Canvasser was set aside as premature, having been made before the lapse of the 5 – day period of appeal, which the petitioner seasonably made;

6.   On July 23, 1984 the Second Division itself proclaimed Pacificador the elected assemblyman of Antique.

ISSUE:

Was the Second Division of the COMELEC, authorized to promulgate its decision of July 23, 1984 proclaiming Pacificador the winner in the election ?

APPLICABLE PROVISIONS OF THE CONSITUTION:

The applicable provisions of the 1973 Constitution are Art. XII-C, secs. 2 and 3, which provide:

“Section 2. Be the sole judge of all contests relating to the election, returns and qualifications of all members of the Batasang Pambansa and elective provincial and city officials.”

“Section 3. The Commission on Elections may sit en banc or in three divisions. All election casesa may be heard and decided by divisions except contests involving members of the Batasang Pambansa, which shall be heard and decided en banc. Unless otherwise provided by law, all election cases shall be decided within ninety days from the date of their submission for decision.”

CONTENTIONS OF THE PARTIES:

Petitioner:

The proclamation made by the Second Division is invalid because all contests involving members of the Batasang Pambansa come under the jurisdiction of the Commission on Elections en banc.

Respondents:

Only “contests” need to be heard and decided en banc, all other cases can be – in fact, should be – filed with and decided only by any of the three divisions.

There is a difference between “contests” and “cases” and also a difference between “pre-proclamation controversies” and “election protests”. The pre-proclamation controversy between the petitioner and the private respondent was not yet a contest at the time and therefore could be validly heard by a mere division of the Commission on elections, consonant with Sec. 3. The issue at that stage was still administrative and could be resolved by a division.

HELD:

a.   The S.C. decided to resolve the case even if the Batasang Pambansa had already been abolished by the Aquino government, and even if Javier had already died in the meantime. This was because of its desire for this case to serve as a guidance for the future. Thus it said: “The Supreme Court is not only the highest arbiter of legal questions but also the conscience of the government. The citizen comes to us in quest of law but we must also give him justice. The two are not always the same. There are times when we cannot grant the latter because the issue has been settled and decision is no longer possible according to law. But there are also times when although the dispute has disappeared, as in this case, it nevertheless cries out to be resolved. Justice demands that we act, then, not only for the vindication of the outraged right, though gone, but also for the guidance of and as a restraint upon the future.”

b.   The S.C. held on the main issue that in making the COMELEC the sole judge of all contests involving the election, returns and qualifications of the members of the Batasang Pambansa and elective provincial and city officials, the Constitution intended to give it full authority to hear and decide these cases from beginning to end and on all matter related thereto, including those arising before the proclamation of the winners.

The decision rendered by the Second Division alone was therefore set aside as violative of the Constitution. The case should have been decided en banc.

c.   Pre-proclamation controversies became known and designated as such only because of Sec. 175 of the 1978 Election Code. The 1973 Constitution could not have therefore been intended to have divided contests between pre and post proclamation when that Constitution was written in 1973.

d.   The word “contests” should not be given a restrictive meaning; on the contrary, it should receive the widest possible scope conformably to the rule that the words used in the Constitution should be interpreted liberally. As employed in the 1973 Constitution, the term should be understood as referring to any matter involving the title or claim of title to an elective office, made before or after the proclamation of the winner, whether or not the contestant is claiming the office in dispute.

e.   There was also a denial of due process. One of the members of the Second Division, Commissioner Jose Opinion was a law partner of Pacificador. He denied the motion to disqualify him from hearing the case. The Court has repeatedly and consistently demanded “the cold neutrality of an impartial judge” as the indispensable imperative of due process. To bolster that requirement we have held that the judge must not only be impartial but must also appear to be impartial as an added assurance to the parties that his decision will be just.

FELICIANO and MELENCIO-HERRERA, concurring:

All election contests involving members of the Batasang Pambansa must be decided by the Commission on Elections en banc  under Secs. 2 and 3 of Art. XII-C of the 1973 Constitution. These sections do not distinguish between “pre-proclamation” and “post-proclamation” contests nor between “cases” and “contests”.

g.            AZUL VS. CASTRO, 133 SCRA 271

h.            PADERANGA VS. AZURA, 136 SCRA 266

i.             DAVID VS. AQUILIZAN, 94 SCRA 707

j.             LORENZANA VS. CAYETANO, 78 SCRA 485 (respondent was not a party to the ejectment case) so to enforce the decision on her violates her right to due process of law

k.            ZAMBALES CHROMITE MINING VS. CA, 94 SCRA 261

l.             ANZALDO VS. CLAVE, 119 SCRA 353

m.          SINGSON VS. NLRC, 273 SCRA 258

n.            ANZALDO VS. CLAVE, 119 SCRA 353

o.            MAYOR ALONTE VS. JUDGE SAVELLANO, 287 SCRA 245

 

MAYOR BAYANI ALONTE VS. JUDGE SAVELLANO, 287 SCRA 245

Vitug, J.

Mayor Alonte of Binan, Laguna was charged of rape before Branch 25, RTC of Laguna. However, as a result of a petition for a transfer of venue filed by the prosecution and granted by the SC, his case was transferred to RTC Branch 53, Manila, presided over by the respondent judge.

After the petitioner’s arraignment, the prosecution submitted an AFFIDAVIT OF DESISTANCE signed by the private complainant JUVIE-LYN PUNONGBAYAN where she prayed for the withdrawal of the case because she is no longer interested in pursuing the same with no intention of re-filing the said case in the future.

Pending resolution of the said motion to withdraw, the petitioner filed a motion for bail. The same was not resolved despite several motions filed by the petitioner to resolve the same.

On December 17, 1997, counsel for the petitioner, ATTY. PHILIP SIGFRID FORTUN, received a notice from the respondent judge notifying him of the promulgation of the decision in this case despite the fact that the prosecution and the defense have not presented their evidence in court.

On December 18, 1997, the respondent judge issued a Decision convicting the petitioner of rape and sentenced to suffer a penalty of RECLUSION PERPETUA.

Issue:

Whether or not the petitioner was denied his right to due process of law.

Held:

In order that an accused in a criminal proceedings is deemed to have been given the right to due process of law, the following requisites must be complied with before a decision is rendered:

1.            the court or tribunal trying the case is clothed with jurisdiction to hear and determine the matter before it;

2.            that jurisdiction was lawfully acquired by it over the person of the accused;

3.            that the accused is given the opportunity to be heard; and

4.            that judgment is rendered only upon lawful hearing (PEOPLE VS. DAPITAN, 197 SCRA 378)

The act of the respondent judge in rendering a decision without even giving the petitioner the right to adduce evidence in his behalf is a gross violation of his right to due process of law.  The Decision rendered is NULL AND VOID for want of due process.

p.            DBP VS. CA, January 29, 1999

2.            Procedural due process before administrative bodies

a.            TIBAY VS. CIR, 69 Phil. 635

          Requisites:

a.            the right to a hearing which includes the right to present evidence;

b.            the tribunal must consider the evidence presented;

c.            the decision must have something to support itself;

d.            the evidence must be substantial;

e.            the decision must be based on the evidence presented during the hearing;

f.             the tribunal or body must act on its own independent consideration of the law or facts;

g.            the board or body shall in all controversial questions, render its decision in such a manner that the parties to the proceedings can know the various issues involved.

b.            AMERICAN TOBACCO VS. DIRECTOR,  67 SCRA 287

c.            MANILA ELECTRIC COMPANY VS. NLRC, 263 SCRA 531

d.            DELGADO VS. CA, November 10, 1986

If an accused was represented by a non-lawyer during the trial (though he thought that he was a lawyer), his right to due process was violated and therefore entitled to a new trial.

3.            Procedural due process in disciplinary actions against students

Academic freedom; due process in disciplinary actions involving students

DE LA SALLE UNIVERSITY VS. COURT OF APPEALS, HON.WILFREDO D. REYES, in his capacity as Presiding Judge of Branch 36, Regional Trial Court of Manila, THE COMMISSION ON HIGHER EDUCATION, THE DEPARTMENT OF EDUCATION CULTURE AND SPORTS, ALVIN AGUILAR, JAMES PAUL BUNGUBUNG, RICHARD REVERENTE and ROBERTO VALDES, JR., G.R. No. 127980,  December 19, 2007

REYES, R.T., J.:

THE FACTS:

PRIVATE respondents Alvin Aguilar, James Paul Bungubung, Richard Reverente and Roberto Valdes, Jr. are members of Tau Gamma Phi Fraternity who were expelled by the De La Salle University (DLSU) and College of Saint Benilde (CSB)[1][1] Joint Discipline Board because of their involvement in an offensive action causing injuries to petitioner James Yap and three other student members of Domino Lux Fraternity.

On  March 29, 1995,   James Yap was eating his dinner alone in Manang’s Restaurant near La Salle, when he overheard two men bad-mouthing and apparently angry at Domino Lux.  He ignored the comments of the two. When he arrived at his boarding house, he mentioned the remarks to his two other brods while watching television. These two brods had earlier finished eating their dinner at Manang’s. Then, the three, together with four other persons went back to Manang’s and confronted the two who were still in the restaurant.  By admission of respondent Bungubung in his testimony, one of the two was a member of the Tau Gamma Phi Fraternity.  There was no rumble or physical violence then.

After this incident, a meeting was conducted between the two heads of the fraternity through the intercession of the Student Council.  The Tau Gamma Phi Fraternity was asking for an apology.  “Kailangan ng apology” in the words of respondent Aguilar.  But no apology was made.

On March 25, 1995, Ten minutes before his next class at 6:00 p.m.,   James Yap went out of the campus using the Engineering Gate to buy candies across Taft Avenue.  As he was about to re-cross Taft Avenue, he heard heavy footsteps at his back.  Eight to ten guys were running towards him.  He panicked.  He did not know what to do.  Then, respondent Bungubung punched him in the head with something heavy in his hands – “parang knuckles.”  Respondents Reverente and Lee were behind Yap, punching him.  Respondents Bungubung and Valdes who were in front of him, were also punching him.  As he was lying on the street, respondent Aguilar kicked him.  People shouted; guards arrived; and the group of attackers left. Yap could not recognize the other members of the group who attacked him.  With respect to respondent Papio, Mr. Yap said “hindi ko nakita ang mukha niya, hindi ko nakita sumuntok siya.”  What Mr. Yap saw was a long haired guy also running with the group.

The mauling incidents were a result of a fraternity war.  The victims, namely: petitioner James Yap and Dennis Pascual, Ericson Cano, and Michael Perez, are members of the “Domino Lux Fraternity,” while the alleged assailants, private respondents Alvin Aguilar, James Paul Bungubung, Richard Reverente and Roberto Valdes, Jr. are members of “Tau Gamma Phi Fraternity,” a rival fraternity.

The next day, March 30, 1995, petitioner Yap lodged a complaint[2][7] with the Discipline Board of DLSU charging private respondents with “direct assault.”  Similar complaints[3][8] were also filed by Dennis Pascual and Ericson Cano against Alvin Lee and private respondents Valdes and Reverente.  Thus, cases entitled “De La Salle University and College of St. Benilde v. Alvin Aguilar (AB-BSM/9152105), James Paul Bungubung (AB-PSM/9234403), Robert R. Valdes, Jr. (BS-BS-APM/9235086), Alvin Lee (EDD/9462325), Richard Reverente (AB-MGT/9153837) and Malvin A. Papio (AB-MGT/9251227)” were docketed as Discipline Case No. 9495-3-25121.

The Director of the DLSU Discipline Office sent separate notices to private respondents Aguilar, Bungubung and Valdes, Jr. and Reverente informing them of the complaints and requiring them to answer. Private respondents filed their respective answers.[4][9]

Said notices  issued by De La Salle Discipline Board uniformly stated as follows:

Please be informed that a joint and expanded Discipline Board had been constituted to hear and deliberate the charge against you for violation of CHED Order No. 4 arising from the written complaints of James Yap, Dennis C. Pascual, and Ericson Y. Cano.

You are directed to appear at the hearing of the Board scheduled on April 19, 1995 at 9:00 a.m. at the Bro. Connon Hall for you and your witnesses to give testimony and present evidence in your behalf.  You may be assisted by a lawyer when you give your testimony or those of your witnesses.

On or before April 18, 1995, you are further directed to provide the Board, through the Discipline Office, with a list of your witnesses as well as the sworn statement of their proposed testimony.

Your failure to appear at the scheduled hearing or your failure to submit the list of witnesses and the sworn statement of their proposed testimony will be considered a waiver on your part to present evidence and as an admission of the principal act complained of.

During the proceedings before the Board on April 19 and 28, 1995, private respondents interposed the common defense of alibi. No full-blown hearing was conducted nor the students allowed to cross-examine the witnesses against them.

On May 3, 1995, the DLSU-CSB Joint Discipline Board issued a Resolution[5][18] finding private respondents guilty.  They were meted the supreme penalty of automatic expulsion,[6][19] pursuant to CHED Order No. 4.[7][20]  The dispositive part of the resolution reads:

WHEREFORE, considering all the foregoing, the Board finds respondents ALVIN AGUILAR (AB-BSM/9152105), JAMES PAUL BUNGUBUNG (AB-PSM/9234403), ALVIN LEE (EDD/94623250) and RICHARD V. REVERENTE (AB-MGT/9153837) guilty of having violated CHED Order No. 4 and thereby orders their automatic expulsion.

In the case of respondent MALVIN A. PAPIO (AB-MGT/9251227), the Board acquits him of the charge.

I  S S U E 

Were private respondents accorded due process of law because there was no full-blown hearing nor were they allowed to cross-examine the witnesses against them?

H E L D:

Private respondents’ right to due process of law  was not violated.

In administrative cases, such as investigations of students found violating school discipline, “[t]here are withal minimum standards which must be met before to satisfy the demands of procedural due process and these are: that (1) the students must be informed in writing of the nature and cause of any accusation against them; (2) they shall have the right to answer the charges against them and with the assistance if counsel, if desired;       (3) they shall be informed of the evidence against them; (4) they shall have the right to adduce evidence in their own behalf; and (5) the evidence must be duly considered by the investigating committee or official designated by the school authorities to hear and decide the case.”[8][66]

Where a party was afforded an opportunity to participate in the proceedings but failed to do so, he cannot complain of deprivation of due process.[9][67]  Notice and hearing is the bulwark of administrative due process, the right to which is among the primary rights that must be respected even in administrative proceedings.[10][68]  The essence of due process is simply an opportunity to be heard, or as applied to administrative proceedings, an opportunity to explain one’s side or an opportunity to seek reconsideration of the action or ruling complained of.[11][69]  So long as the party is given the opportunity to advocate her cause or defend her interest in due course, it cannot be said that there was denial of due process.[12][70]

A formal trial-type hearing is not, at all times and in all instances, essential to due process – it is enough that the parties are given a fair and reasonable opportunity to explain their respective sides of the controversy and to present supporting evidence on which a fair decision can be based.[13][71]  “To be heard” does not only mean presentation of testimonial evidence in court – one may also be heard through pleadings and where the opportunity to be heard through pleadings is accorded, there is no denial of due process.[14][72]

Private respondents were duly informed in writing of the charges against them by the DLSU-CSB Joint Discipline Board through petitioner Sales.  They were given the opportunity to answer the charges against them as they, in fact, submitted their respective answers.  They were also informed of the evidence presented against them as they attended all the hearings before the Board.  Moreover, private respondents were given the right to adduce evidence on their behalf and they did.  Lastly, the Discipline Board considered all the pieces of evidence submitted to it by all the parties before rendering its resolution in Discipline Case No. 9495-3-25121.

Private respondents cannot claim that they were denied due process when they were not allowed to cross-examine the witnesses against them.  This argument was already rejected in Guzman v. National University[15][73] where this Court held that “x x x the imposition of disciplinary sanctions requires observance of procedural due process.  And it bears stressing that due process in disciplinary cases involving students does not entail proceedings and hearings similar to those prescribed for actions and proceedings in courts of justice.  The proceedings in student discipline cases may be summary; and cross examination is not, x x x an essential part thereof.”

GUZMAN VS. NU, 142 SCRA 706

 

                 GUZMAN VS. NATIONAL UNIVERSITY

                 G.R. No. L-68288, July 11, 1986

FACTS:

Petitioners who are students of the National University were barred from enrolment. The school claims that their scholastic standing is poor and that they have been involved in activities that have disrupted classes and had conducted mass actions without the required permits.

HELD:

a.   It is apparent that despite the accusations of alleged violations hurled by the school against the petitioners, the fact is that it had never conducted proceedings of any sort to determine whether or not petitioners-students had indeed led or participated “in activities within the university premises, conducted without prior permit from school authorities, that disturbed or disrupted classes therein”.

Also apparent is the omission of respondents to cite any duly published rule of theirs by which students may be expelled or refused re-enrollment for poor scholastic standing.

b.   Under the Education Act of 1982, students have the right “to freely choose their field of study subject to existing curricula and to continue their course therein up to graduation, EXCEPT in case of academic deficiency, or violation of disciplinary regulations.”

The petitioner were denied of this right, and were being disciplined without due process, in violation of the admonition in the Manual of Regulations for Private Schools that “no penalty shall be imposed upon any student except for cause as defined in *** (the) Manuel and/or in the school rules and regulations as duly promulgated and only after due investigation shall have been conducted. It has already been held in Berina vs. Philippine Maritime Institute, 117 SCRA 581, that it is illegal of a school to impose sanctions on students without conducting due investigation.

c.   Of course, all schools have the power to adopt and enforce its rules. In fact the maintenance of good school discipline is a duty specifically enjoined on every private school. The Manual of Regulations for Private Schools provides that:

“* * The school rules governing discipline and the corresponding sanctions therefor must be clearly specified and defined in writing and made known to the students and/or their parents or guardians. Schools shall have the authority and prerogative to promulgate such rules and regulations as they may deem necessary from time to time effective as of the date  of their promulgation unless otherwise specified.”

d.   The imposition of disciplinary sanctions requires observance of procedural due process. Due process in disciplinary cases involving students:

a. need not entail proceedings and hearing similar to those prescribed for actions and proceedings in court of justice;

b. the proceedings may be summary;

c. cross-examination is not an essential part thereof.

But the S.C. said that the following minimum standards must be met to satisfy the demands of procedural due process:

1.   the students must be informed in writing of the nature and cause of any accusation against them;

     2.   they shall have the right to answer the charges against them, with the assistance of counsel;

     3.   they shall be informed of the evidence against them;

     4.   they shall have the right to adduce evidence in their own behalf;

     5.   the evidence must be duly considered by the investigating committee or official designated by the school authorities to hear and decide the case.

a.            BERINA VS. PMI, September 30, 1982

Due process in the dismissal of employees

   Requisites of Due Process before the NLRC

1.            Notice; and

2.            Hearing

a.            MGG  Marine Services vs. NLRC, 259 SCRA 664

b.            Philippine Savings Bank vs. NLRC, 261 SCRA 409

c.            RAYCOR AIR CONTROL VS. NLRC, 261 SCRA 589

d.            WALLEM MARITIME SERVICES VS. NLRC, 263 SCRA 174

e.            SAMILLANO VS. NLRC, 265 SCRA 788

f.             STOLT-NIELSEN VS. NLRC, 264 SCRA 307

g.            GARCIA VS. NLRC, 264 SCRA 261

4.            Effect of a Motion for Reconsideration to violation of the right to due process

a.            CASUELA VS. OFFICE OF THE OMBUDSMAN, 276 SCRA 635

b.            CORDENILLO VS. EXECUTIVE SECRETARY, 276 SCRA 652

5.            In administrative proceedings, does due process require that a party be assisted by counsel and be able to cross-examine the witnesses?

LUMIQUED VS. EXENEA, 282 SCRA 125

          There is no law, whether the Civil Service Act or the Administrative Code of 1987, which provides that a respondent in an administrative case should be assisted by counsel in order that the proceedings therein is considered valid. Not only, that, petitioner herein was given the opportunity several times to engage the services of a lawyer to assist him but he confidently informed the investigators that he could protect himself.

Administrative Due Process

ATTY. ROMEO ERECE VS. LYN MACALINGAY, ET AL., G.R. No. 166809, April 22, 2008

THE FACTS:

Petitioner is the Regional Director of the Commission on Human Rights (CHR) Region I, whose office is located in San Fernando City, La Union.  Respondent employees of the CHR Region I filed an Affidavit-Complaint dated October 2, 1998 against petitioner alleging that he denied them the use of the office vehicle assigned to petitioner, that petitioner still claimed transportation allowance even if he was using the said vehicle, and that he certified that he did not use any government vehicle, when in fact he did, in order to collect transportation allowance.

Respondent filed his answer denying  the allegations against him.

After a fact-finding investigation, the CSC Proper in CSC Resolution No. 99-1360 dated July 1, 1999 charged petitioner with Dishonesty and Grave Misconduct for using a government vehicle in spite of his receipt of the monthly transportation allowance and for certifying that he did not use any government vehicle, when in fact, he did, in order to receive the transportation allowance.

Pertinent portions of the formal charge read:

1.       That despite the regular receipt of Erece of his monthly Representation and Transportation Allowance (RATA) in the amount of P4,000.00, he still prioritizes himself in the use of the office vehicle (Tamaraw FX) in spite of the directive from the Central Office that he cannot use the service vehicle for official purposes and at the same time receive his transportation allowance;

2.       That Erece did not comply with the directive of the Central Office addressed to all Regional Human Rights Directors, as follows: ‘to regularize your receipt of the transportation allowance component of the RATA to which you are entitled monthly, you are hereby directed to immediately transfer to any of your staff, preferably one of your lawyers, the memorandum receipt of the vehicle(s) now still in your name;’

3.       That he certified in his monthly liquidation of his RATA that he did not use any government vehicle for the corresponding month, which is not true because he is the regular user of the government vehicle issued to CHR-Region I.

The foregoing facts and circumstances indicate that government service has been prejudiced by the acts of Erece.

WHEREFORE, Romeo L. Erece is hereby formally charged with Dishonesty and Grave Misconduct.  Accordingly, he is given five (5) days from receipt hereof to submit his Answer under oath and affidavits of his witnesses, if any, to the Civil Service Commission-Cordillera Administrative Region (CSC-CAR).  On his Answer, he should indicate whether he elects a formal investigation or waives his right thereto.  Any Motion to Dismiss, request for clarification or Bills of Particulars shall not be entertained by the Commission.  Any of these pleadings interposed by the respondent shall be considered as an Answer and shall be evaluated as such.  Likewise, he is advised of his right to the assistance of counsel of his choice.[16][4]

After a formal investigation of the case, the CSC issued Resolution No. 020124, dated January 24. 2002, finding petitioner guilty of dishonesty and conduct prejudicial to the best interest of the service and penalizing him with dismissal from the service.

Petitioner filed a petition for review of the CSC Resolution with the CA.

In the Decision promulgated on January 7, 2005, the CA upheld the CSC Resolution, the dispositive portion of which reads:

WHEREFORE, in view of the foregoing, the petition is DENIED and the assailed Resolutions of the Civil Service Commission are hereby AFFIRMED.[17][5]

Hence, this petition.

I S S U E:

Petitioner raised the issue of violation of his right to due process because he was denied the right to cross-examine the respondents on their affidavit-complaint.

H e l d:

Petitioner contends that he was denied due process as he was not afforded the right to cross-examine his accusers and their witnesses.  He stated that at his instance, in order to prevent delay in the disposition of the case, he was allowed to present evidence first to support the allegations in his Counter-Affidavit.  After he rested his case, respondents did not present their evidence, but moved to submit their position paper and formal offer of evidence, which motion was granted by the CSC over his (petitioner’s) objection.   Respondents then submitted their Position Paper and Formal Offer of Exhibits.

Petitioner submits that although he was allowed to present evidence first, it should not be construed as a waiver of his right to cross-examine the complainants.  Although the order of presentation of evidence was not in conformity with the procedure, still petitioner should not be deemed to have lost his right to cross-examine his accusers and their witnesses.  This may be allowed only if he expressly waived said right.

The Court agrees with the CA that petitioner was not denied due process when he failed to cross-examine the complainants and their witnesses since he was given the opportunity to be heard and present his evidence. In administrative proceedings, the essence of due process is simply the opportunity to explain one’s side.[18][6]

Velez v. De Vera[19][7]   held:

Due process of law in administrative cases is not identical with “judicial process” for a trial in court is not always essential to due process.  While a day in court is a matter of right in judicial proceedings, it is otherwise in administrative proceedings since they rest upon different principles.  The due process clause guarantees no particular form of procedure and its requirements are not technical.  Thus, in certain proceedings of administrative character, the right to a notice or hearing are not essential to due process of law.  The constitutional requirement of due process is met by a fair hearing before a regularly established administrative agency or tribunal. It is not essential that hearings be had before the making of a determination if thereafter, there is available trial and tribunal before which all objections and defenses to the making of such determination may be raised and considered.  One adequate hearing is all that due process requires. . . .

The right to cross-examine is not an indispensable aspect of due process.  Nor is an actual hearing always essential. . . . [20][8]

The dismissal of the petitioner from the government is valid.

Reference:

Constitutional Law Reviewer by Atty. Larry D. Gacayan (2008)

College of Law

University of the Cordilleras


[1][1]  College of Saint Benilde is an educational institution which is part of the De La Salle System.

[2][7]  Id. at 127.

[3][8]  Id. at 128-129.

[4][9]  Id. at 130-133.

[5][18] Id. at 139-150.

[6][19] Manual of Regulations for Private Schools (1992), Sec. 77(c) provides that expulsion is “an extreme penalty of an erring pupil or student consisting of his exclusion from admission to any public or private school in the Philippines and which requires the prior approval of the Secretary.  The penalty may be imposed for acts or offenses constituting gross misconduct, dishonesty, hazing, carrying deadly weapons, immorality, selling and/or possession of prohibited drugs such as marijuana, drug dependency, drunkenness, hooliganism, vandalism, and other serious school offenses such as assaulting a pupil or student or school personnel, instigating or leading illegal strikes or similar concerned activities resulting in the stoppage of classes, preventing or threatening any pupil or student or school personnel from entering the school premises or attending classes or discharging their duties, forging or tampering with school records or school forms, and securing or using forged school records, forms and documents.”

[7][20] Rollo, pp. 151-153.

[8][66] Guzman v. National University, G.R. No. L-68288, July 11, 1986, 142 SCRA 699, 706-707.

[9][67] Bautista v. Court of Appeals, G.R. No. 157219, May 28, 2004, 430 SCRA 353.

[10][68] Globe Telecom, Inc. v. National Telecommunications Commission, G.R. No. 143964, July 26, 2004, 435 SCRA 110.

[11][69] Valiao v. Court of Appeals, G.R. No. 146621, July 30, 2004, 435 SCRA 543.

[12][70] Barza v. Dinglasan, Jr., G.R. No. 136350, October 25, 2004, 441 SCRA 277.

[13][71] Seastar Marine Services, Inc. v. Bul-an, Jr., G.R. No. 142609, November 25, 2004, 444 SCRA 140.

[14][72] Batul v. Bayron, G.R. Nos. 157687 & 158959, February 26, 2004, 424 SCRA 26.

[15][73] Supra note 66, at 706.

[16][4]     Id. at 35-36.

[17][5]     Id. at 34.

[18][6]     Velez v. De Vera, A.C. No. 6697, July 25, 2006, 496 SCRA 345.

[19][7]     Id. at  387-388.

[20][8]     Emphasis supplied.

Constitutional Law Chapter I – Fundamental Powers of the State (Police Power)

CONSTITUTIONAL LAW

CHAPTER I – FUNDAMENTAL POWERS OF THE STATE

 (Police Power)

1.            Define:

police power—is the power vested in the legislature by the Constitution to make, ordain, establish all manner of wholesome and reasonable laws for the good and welfare of the State and its people. (ERMITA MALATE HOTEL VS. CITY MAYOR, July 31, 1967)

The basic purposes of police power are:

a.            to promote the general welfare, comfort and convenience of the people; (ASSOCIATION OF SMALL LANDOWNERS VS. SECRETARY, 175 SCRA 343; US VS. TORIBIO, 15 Phil. 85

b.            to promote and preserve public health; (VILLANUEVA VS. CASTANEDA, September 21, 1987; DECS VS. SAN DIEGO, 180 SCRA 533 [NMAT]; LORENZO VS. DIRECTOR OF HEALTH, 50 Phil. 595—apprehend and confine lepers in a leprosarium)


PROFESSIONAL REGULATIONS COMMISSION VS. ARLENE DE GUZMAN, ET AL., June 21, 2004

POLICE POWER/Public Health; THE RIGHT TO PRACTICE A PROFESSION

Facts:

After the Professional Regulations Commission (PRC) released the names of successful examinees in the Medical Licensure Examination, the Board of Medicines observed that the grades of the 79 Fatima College of Medicine  successful examinees  were unusually and exceptionally high in the two (2) most difficult subjects of the exam, i.e., Biochemistry and Obstetrics and Gynecology.

The Board then issued Resolution No. 19 withholding the registration as physicians of all the examinees from Fatima College of Medicine. Compared with other examines from other schools, the results of those from Fatima were not only incredibly high but unusually clustered close to each other. The NBI  Investigation found that the “Fatima examinees gained early access to the test questions.”

On July 5, 1993, the respondents-examinees filed a petition for mandamus before the RTC of Manila to compel the PRC  to give them their licenses to practice medicine. Meanwhile on July 21, 1993, the Board of medicine issued Resolution No. 21 charging the respondents of immorality, dishonest conduct, fraud and deceit and recommended that the test results of the Fatima Examinees be nullified.

On December 19, 1994, the RTC of Manila promulgated its decision ordering the PRC to allow the respondents to take the physician’s oath and to register them as physicians. The same was appealed by the PRC to the Court of Appeals which sustained the RTC decision.

Hence, this petition.

Held:

It must be stressed that the power to regulate the practice of a profession or pursuit of an occupation cannot be exercised by the State in an arbitrary, despotic or oppressive manner. However, the regulating body has the right to grant or forbid such privilege in accordance with certain conditions.

But like all rights and freedoms guaranteed by the Constitution, their exercise may be regulated pursuant to the police power of the State to safeguard health, morals, peace, education, order, safety, and general welfare of the people. As such, mandamus will not lie to compel the Board of Medicine to issue licenses for the respondents to practice medicine.

RA 2382 which prescribes the requirements for admission to the practice of medicine, the qualifications of the candidates for the board examination, the scope and conduct of the examinations, the grounds for the denying of the issuance of a physician’s license, or revoking a license that has been issued. It is therefore clear that the examinee must prove that he has fully complied with all the conditions and requirements imposed by law and the licensing authority to be granted the privilege to practice medicine. In short, he shall have all the qualifications and none of the disqualifications. The petition is therefore granted.

c.            to promote and protect public safety; (AGUSTIN VS. EDU, 88 SCRA 195; TAXICAB OPERATORS VS. JUINIO, 119 SCRA 897 )

d.            to maintain and safeguard peace and order; (GUAZON VS. DE VILLA)

e.            to protect public morals; (DE LA CRUZ VS. PARAS, 123 SCRA 569; ERMITA MALATE HOTEL VS. CITY MAYOR, July 31, 1967; JMM PROMOTIONS VS. CA, 260 SCRA 319; VELASCO VS. VILLEGAS, February 13, 1983)

f.             to promote the economic security of the people. (ichong vs. hernandez, 101 Phil. 11155)

Not a valid exercise of police power:

a.            CITY GOVERNMENT OF QC VS. ERICTA, 122 SCRA 759; (6%)

b.            YNOT VS. IAC, 148 SCRA 659; the Director of Animal Industry or the Chairman if the National Meat Commission “may dispose of the carabeef to charitable agencies as he may deem fit”. This is oppressive and unreasonable since the owner is denied due process of law and he is given so much discretion as the law is not complete in itself nor is there a standard to guide the official.

c.            DE LA CRUZ VS. PARAS, 123 SCRA 569

power of eminent domain
power of taxation

2.            Differences and similarities

Didipio earth savers multi purpose association vs. denr sec.  Elisea gozu, et al., 485 scra 586

Chico-Nazario, J.

1.            The power of eminent domain is the inherent right of the State to condemn or to take private property for public use upon payment of just compensation while police power is the power of the state to promote public welfare by restraining and regulating the use of liberty and property without compensation;

2.            In the exercise of police power, enjoyment of a property is restricted because the continued use thereof would be injurious to public welfare. In such case, there is no compensable taking provided none of the property interests is appropriated for the use or for the benefit of the public. Otherwise, there should be compensable taking if it would result to public use.

3.            Properties condemned under police power are usually noxious or intended for noxious purpose; hence , no compensation shall be paid. Likewise, in the exercise of police power, property rights of private individuals are subjected to restraints and burdens in order to secure the general comfort, health and prosperity of the state.

While the power of eminent domain often results in the appropriation of title to or possession of property, it need not always be the case. Taking may include trespass without actual eviction of the owner, material impairment of the value of the property or prevention of the ordinary uses for which the property was intended such as the establishment of an easement.

As such, an imposition of burden over a private property through easement (by the government) is considered taking; hence, payment of just compensation is required. The determination of just compensation, however, is a judicial function (EPZA vs. Dulay, 149 SCRA 305) and initial determinations on just compensation by the executive department and Congress cannot prevail over the court’s findings.

Finally, service contracts with foreign corporations is not prohibited under the 1987 Philippine Constitution with foreign corporations or contractors would invest in and operate and manage extractive enterprises, subject to the full control and supervision of the State; this time, however, safety measures were put in place to prevent abuses of the past regime.

3.            Limitations in the exercise of said powers

4.            Tests for a valid exercise of police power

a.            the interests of the public, not mere particular class, require the exercise of police power; (LAWFUL SUBJECT)

b.            the means employed is reasonably necessary for the accomplishment of the purpose and not unduly oppressive to individuals. (LAWFUL MEANS). In short, the end does not justify the means.

5.            Read:

a.            JMM Promotions vs. CA, 260 SCRA 319

b.            ERMITA-MALATE HOTEL VS. MAYOR OF MANILA, July 31, 1967;

c.            ICHONG VS. HERNANDEZ, 101 Phil. 1155

d.            CHURCHILL VS. RAFFERTY, 32 Phil. 580

e.            PEOPLE VS. POMAR, 46 Phil. 447

f.             US VS. TORIBIO, 15 Phil. 85

g.            VELASCO VS. VILLEGAS, February 13, 1983

h.            ILOILO ICE & COLD STORAGE VS. MUNICIPAL COUNCIL, 24 Phil. 471

i.              AGUSTIN VS. EDU, 88 SCRA 195

j.             YNOT VS. IAC, 148 SCRA 659

RESTITUTO YNOT VS. THE ITERMEDIATE APPELLATE COURT, G.R. No. 74457,March 20, 1987

Cruz, J.

Facts:

1.   On January, 13, 1984, Ynot transported six carabaos by using a pumpboat from Masbate to Iloilo. The six carabaos, were, however, confiscated by the Police Station Commander of Baratoc Nuevo, Iloilo for alleged violation of Executive Order No. 626-A which prohibits the inter-provincial transporting of carabaos and carabeefs which does not comply with the provisions of Executive No.626;

2.   That Section 1 of the said law provides that “henceforth, no carabaos regardless of age, sex physical condition or purpose and no carabeef shall be transported from one province to another. The carabao or carabeef transported in violation of the said law shall be subjected to confiscation and forfeiture by the government to be distributed to charitable institution and similar institutions as the Chairman of the National meat inspection Commission may see fit in the case of the carabeef, and to deserving farmers through the dispersal of the Director of Animal Industry, in the   case of carabaos;

3.   Ynot filed a suit for recovery and the carabao were returned to him upon the issuance of a writ of replevin upon his filing of a supersede as bond in the amount of P12,000.00;

4.   After trial of the case, the Judge upheld the validity of the act of the Police Station Commander in confiscating the carabaos. Ynot was ordered to returned the carabaos but since he could not do so, the court ordered the confiscation of the bond. The court refused to rule on the constitutionality of the said Executive Order on the ground of lack of authority to do so and also because of its presumed validity;

5.   The petitioner appealed to the IAC but the said court upheld the decision of the Trial Court. Hence this petition for review on certiorari before the Supreme Court where YNOT claimed that the penalty of confiscation is INVALID the same was imposed without according the owner the right to be heard before a competent and impartial tribunal as guaranteed by due process.

Issues:

1.   May a lower court (like the MTC, RTC, of the Court of Appeals) declare a law unconstitutional?

2.   Is Executive Order No. 626-A constitutional?

Sub-issues under this are:

a. Was it a valid police power measure?

b. Was there an undue delegation of legislative power?

Held:

1.   While the lower courts should observe a becoming modesty in examining constitutional question, THEY ARE NOT PREVENTED FROM RESOLVING THE SAME WHENEVER WARRANTED, subject only to review by the supreme court. This is so because under Section 5,[2(a)], Art. VIII, of the 1987 Constitution provides that the Supreme Court has the power to “review, revise, reverse, modify or affirm on appeal” or certiorari as the rules of court may provide, final judgements and orders of the lower courts in all cases involving the constitutionality of certain measures. This simply means that lower courts may declare whether or not a law is constitutional.

2.   In order that a measure or law may be justified under the police power of the state, it must meet two tests:

     a. the subject must be lawful; and

    b. the means employed is lawful.

Since the prohibition of the slaughtering of carabaos except where they are at least 7 years old when male and at least 11 years old when female is in furtherance of the public interest since said carabaos are very useful to the work at the farm, it is conceded that the Executive Order meets the first test—- it has  lawful subject.

But does the law meets the second requisite or test which is lawful method?

Executive Order No. 626-A imposes an absolute ban not on the slaughtering of carabaos BUT ON THIER MOVEMENT, providing that “no carabao regardless of age, sex, physical condition or purpose and no carabeef shall be transported from one province to another.” The reasonable connection between the means employed and the purpose sought to be achieved by the question measure is missing. We do not see how the prohibition of the  inter-provincial transport can prevent their indiscriminate slaughter considering that they can be killed any where, with no less difficulty in one province than in the other. Obviously, retaining a carabao in one province will not prevent their slaughter there, any more than moving them to another province will make it easier to kill them there.

The law is unconstitutional because it struck at once and pounced upon the petitioner without giving him a chance to be heard, thus denying him the centuries-old guarantee of elementary fair play.

Since  the Executive Order in question is a penal law, then violation thereof should be pronounce not by the police BUT BY A COURT OF JUSTICE, WHICH ALONE WOULD HAVE HAD THE AUTHORITY TO IMPOSE THE PRESCRIBED PENALTY, AND ONLY AFTER TRIAL AND CONVICTION OF THE ACCUSED.

Also, there is no reasonable guidelines or bases of the Director of Animal Industry or the Chairman of the NATIONAL Meat Inspection Commission in the disposition of the carabaos or carabeef other than what “they  may see fit” which is very dangerous and could result to opportunities for partiality and abuse, and even graft and corruption.

The Executive Order is, therefore, invalid  and unconstitutional and not a valid police power measure because the METHOD EMPLOYED TO CONSERVE CARABAOS IS NOT REASONABLY NECESSARY TO THE PURPOSE OF THE LAW AND, WORSE IS UNDULY OPPRESSIVE. DUE PROCESS IS VIOLATED BECAUSE THE OWNER OF THE PROPERTY CONFISCATED IS DENIED THE RIGHT TO BE HEARD IN HIS DEFENSE AND IS IMMEDIATELY CONDEMNED AND PUNISHED. THE CONFERMENT ON THE ADMINISTRATIVE AUTHORITIES (like the police) OF THE POWER TO ADJUDGE THE GUILT OF THE SUPPOSED OFFENDER IS A CLEAR ENCROACHMENT OF JUDICIAL FUNCTIONS AND MILITATES AGAINST THE DOCTRINE OF SEPARATIION OF POWERS.

Also, there is undue delegation of legislative power to the officers mentioned therein  (Director of Animal Industry and Head of the National Meat Commission) because they were given unlimited discretion in the distribution of the property confiscated.

k.            TAXICAB OPERATORS VS. BOT, 119 SCRA 597

l.              BAUTISTA VS. JUINIO, 127 SCRA 329

MARY CONCEPCION-BAUTISTA VS. ALFREDO JUINIO, ET AL,  127 SCRA 329

Fernando, C.J

Facts:

1. On May 31, 1979, President Marcos issued Letter of Instruction No. 869 prohibiting  the use of private motor vehicles with H (Heavy Vehicles) and EH (Extra Heavy Vehicles) on week-ends and holidays from 12:00 a.m. Saturday morning to 5:00 a.m. Monday morning, or 1:00 a.m. of the holiday to 5:00 a.m. of the day after the holiday. Motor vehicles of the following classifications are however, exempted:

1. S—-service;

2. T—-Truck;

3. DPL–Diplomatic;

4. CC—Consular Corps; and

5. TC—Tourist Cars

2. On June 11, 1979, the then Commissioner of Land Transportation, ROMEO EDU issued Circular No. 39 imposing “the penalties of fine, confiscation of vehicle and cancellation of registration on owners of the above-specified found violating such letter of Instructions”;

3. Bautista is questioning the constitutionality of the LOI and the Implementing Circular on the grounds that:

a. The banning of H and EH vehicles is unfair, discriminatory, and arbitrary and thus contravenes the EQUAL PROTECTION CLAUSE; and

b. The LOI denies the owners of H and EH vehicles of due process, more specifically of their right to use and enjoy their private property and of their freedom to travel and hold family gatherings, reunions, outings on week-ends and holidays, while those not included in the prohibition are enjoying unrestricted freedom;

c. The Circular violates the prohibition against undue delegation of legislative power because the LOI does not impose the penalty of confiscation.

HELD:

1. It must be pointed out that the LOI was promulgated to solve the oil crisis which was besetting the country at that time. It was therefore a valid police power measure to ensures the country’s economy as a result of spiralling fuel prices. In the interplay of Bautista’s right to due process and the exercise of police power by the State, the latter must be given leeway. The police power is intended to promote public health, public morals, public safety  and general welfare.

2. The petitioners’ claim that their right to equal protection was violated is without basis. This is so because there is a valid classification in this case. Definitely, Heavy and Extra-Heavy vehicles consume more gasoline that the other kinds of vehicles and it is but proper to regulate the use of those which consumes more gasoline. If all the owner of H and EH vehicles are treated in the same fashion, or whatever restrictions cast on some in the group is held equally binding on the rest, there is no violation of the equal protection clause.

3. The penalty of “impounding” the vehicle as embodied in Circular No. 39 has no statutory basis. Therefore, it is not valid being an “ultra vires”.

m.          ASSOCIATION OF SMALL LANDOWNERS VS. SECRETARY OF AGRARIAN REFORM, 175 SCRA 343

n.            DECS VS. SAN DIEGO, 180 SCRA 533

o.            VILLANUEVA VS. CASTANEDA, September 21, 1987

5-a. Not a valid exercise of police power

CITY GOVERNMENT OF QUEZON CITY VS. ERICTA, 122 SCRA 759

Reference:

Constitutional Law Reviewer by Atty. Larry D. Gacayan (2008)

College of Law

University of the Cordilleras

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