Pre-Bar Quizzer in Political Law – PART 2: Constitution of Liberty 11 – 20
11. What are the requisites of Due Process before an employee may be dismissed from his work?
The requisites of Due Process before the NLRC are:
- Notice; and
12. Is Due Process satisfied in administrative proceedings if the respondent is not assisted by counsel?
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. (LUMIQUED VS. EXENEA, 282 SCRA 125)
13. What are the requisites for a valid classification?
As held in People vs. Cayat, 68 Phil. 12, the requisites are:
- There must be real and substantial distinctions;
- It must be germane tot he purposes of the law;
- It must not be limited to existing conditions only; and
- It must apply equally to all members of the same class.
14. Is there violation of the equal protection clause if policemen who are charged of a criminal offense punishable for more than six (6) years will remain suspended until after the his acquittal unlike other public officers whose maximum suspension even when facing graft and corrupt charges is only three (3) months?
No, there is no violation. In HIMAGAN VS. PEOPLE, the Supreme Court held that 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.
15. What are the requisites of a valid Search Warrant or Warrant of Arrest?
No search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. (Section 2, Art. III).
In addition, Rule 126 of the Rules on Criminal Procedure requires that no warrant shall be issued for more than one (1) specific offense and that in the implementation of a search warrant when the respondent is not present, witnesses are required. Finally, a Circular issued by the Supreme Court requires that no warrant or warrant of arrest shall be implemented during the night, week-ends or holidays, except in exceptional circumstances.
NOTE: Under 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) a person may be taken into custody by the police if there is a written authorization by the Anti-Terrorism Council and such detention may be extended upon written approval of the Commission of Human Rights in case of actual or imminent terrorist attack.
***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.
16. In case the place to be searched as indicated in the Search Warrant is erroneous because it is different from the place mentioned by the applicants who searched the place indicated by them in their affidavit, are the things seized admissible in evidence?
No. As held in PEOPLE VS. CA, 291 SCRA 400, 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.
17. What are the different instances when a warrantless search and seizure is allowed under our existing jurisprudence?
Warrantless search is allowed in the following instances:
- customs searches;
- searches of moving vehicle;
- seizure of evidence in plain view;
- consented searches;
- search incidental to a lawful arrest; and
- stop and frisk measures. (PEOPLE VS. ARUTA, 288 SCRA 626)
18. May a judge deputize his Clerk of Court to take the deposition of the applicant for a Search Warrant subject to clarificatory questions after his hearing in other cases?
No. As held in Bache vs. Ruiz, 37 SCRA 823, the examination of the complainant ant the witnesses he may produce must be done personally by the judge. Otherwise, the warrant shall be void. As such, the SC held in PENDON VS. CA, November 16, 1990 that 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.
19. May a Search Warrant be issued for the crimes of Search Warrant for estafa, falsification, tax evasion and insurance fraud?
No, such would be a “general warrant” and violates the rule that a warrant shall be issued for one (1) specific offense. (Asian Surety vs. Herrera, 54 SCRA 312)
20. What is a “Scatter-shot Warrant”?
It is a search warrant issued for more than one (1) specific offense like a search warrant issued for more than one specific offense like one for estafa, robbery, theft and qualified theft”. (TAMBASEN VS. PEOPLE, July 14, 1995; PEOPLE VS. CA, 216 SCRA 101)
Pre-Bar Quizzer in Political Law (Doctrinal Rulings, Requisites and Definitions)
July, 2008 by Atty. Larry D. Gacayan
College of Law, University of the Cordilleras
Posted on July 4, 2014, in Political Law and tagged Pre-Bar Quizzer in Political Law – PART 2: Constitution of Liberty 11 – 20. Bookmark the permalink. 1 Comment.