Pre-Bar Quizzer in Political Law – PART 2: Constitution of Liberty 101 – 120

101. What is the effect of the testimony of a witness who did not return to court for his cross examination? How about if there is only partial cross-examination?

          A witness who did not return to court for his cross-examination would render his entire testimony inadmissible for being hearsay. It likewise violated the right of confrontation on the part of the accused. (Ortigas, JR. vs. Lufthansa, 64 SCRA 610) If the witness was partially examined, only the portion of his direct testimony where he was cross-examined shall be admissible as evidence.( P vs. Seneris, 99 SCRA 92)

 

102. What are the requisites of a valid Trial in Absentia? May an accused who jumped bail after arraignment be validly convicted by the trial court?

          The requisites of a valid Trial in Absentia are the following:

• The accused was duly arraigned;
• The accused was notified of the hearing; and
• The accused’s absence [during the trial] is unjustifiable.

         

103. May an accused compel the trial court to issue subpoena to a Physician who is already working in the United States to testify on his treatment of the accused? Would the failure of said witness to appear and testify for the accused violates his right to subpoena witnesses and the production of evidence in his favor?

          No. Such witness is beyond the jurisdiction of the Philippine Courts. Further, his right to subpoena witnesses and the production of evidence will not be violated since the hospital could produce said records and another physician could testify on the contents thereof. (Cavili vs. Hon. Florendo, 154 SCRA 610; Fajardo vs. Garcia, 98 SCRA 514)

 

104. May the accused be presented by the prosecution as the latter’s witness?

          No. Such would violate the right of the accused against self-incrimination and if such happened, the proceedings shall be null and void. (Chavez vs. CA, 24 SCRA 663)

 

105. Generally, to what kind of evidence does the right against self-incrimination applies?

          Generally, it applies only to “testimonial compulsion.” As such, forcing a person to give a sample of his urine to determine whether a woman is pregnant (Villaflor vs. Summers, 41 Phil. 62); whether a person is suffering from sexually transmitted disease (US vs. Tang Teng, 23 Phil. 145) or under the influence of prohibited drugs (PEOPLE VS. BANIHIT, G.R. NO. 132045, 339 SCRA 86, AUG. 25, 2000; PEOPLE VS. CONTINENTE, G.R. NOS. 100801- 02, 339 SCRA 1, AUG. 25, 2000) does not violate the person’s right against self-incrimination. Likewise forcing one to try a pair of shoes, pants or shirt does not fall under the above proscription.

 

106. How about forcing a person to give a sample of his handwriting?.

          Though the same does not require testimonial compulsion, the right against self-incrimination will be violated by said act. This is so because it involves the use of the intelligence of the person. (Beltran vs. Samson, 50 Phil. 570)

 

107. Does the right against self-incrimination applicable to civil and administrative cases also?

          Yes but unlike in criminal cases where the accused could not be presented by the prosecution and his right not to take the witness stand is absolute, an adverse party in a civil or administrative cases may be presented by the other party but could refuse to answer only if the question propounded calls for an incriminatory answer.

 

108. May a court stenographer who had resigned from the government be compelled to transcribe her notes under pain of contempt without violating her right against involuntary servitude?

          Yes. This is so because the testimony was taken while she was still in the government and as such, it was her obligation to transcribe the same, having received her salary for the day when the testimony was taken. (Aclaracion vs. Gatmaitan, 64 SCRA 131)

 

109. Is the Death Penalty already abolished by the 1987 Constitution?

          While the Supreme Court answered the same in the affirmative in the cases of P vs. Gavarra, 155 SCRa 327; P vs. Masangkay, 155 SCRA 113; P vs. Atencio, 156 SCRA 242; P vs. Intino, September 26, 1988 it held in People vs. Munoz, 170 SCRA 107 that it was merely suspended.

 

110. Is death as a penalty a cruel or unusual punishment?

         No. (P vs. Estoista, 93 Phil. 647). It is only when the punishment is shocking to the conscience of the community and disproportionate to the offense charged that the penalty becomes cruel and unusual. In fact, the Supreme Court held in ECHEGARAY VS. SECRETARY OF JUSTICE that death through Lethal Injection is the most humane way of implementing the death penalty.

 

111. What are the requisites before an accused may validly invoke double jeopardy?

There is double jeopardy when there is:

          [1] valid complaint of information;

          [2] filed in a court of competent jurisdiction;

          [3] the accused was validly arraigned; and

          [4] the accused was convicted or acquitted, or the case was dismissed or otherwise terminated without the express content of the accused. (PEOPLE VS. ALMARIO, 355 SCRA 1)

         

112. If the dismissal was with the express consent of the accused, may the dismissal result in double jeopardy?

          Yes in two (2) instances.

  As a general rule, if the dismissal is through the instance of the accused or with his express consent, there is no double jeopardy. However, this rule admits of two (2) exceptions:

1)    the motion to dismiss is based on insufficiency of evidence; and

2)    the motion to dismiss is based on the denial of the accused’s right to Speedy Trial. (PEOPLE VS. ALMARIO, 355 SCRA 1)

          Double Jeopardy has set in. In these two (2) instances, the correct description of what happened is that the accused was   “acquitted” and not “the case was dismissed with his consent”.

It must be pointed out, however, that in PEOPLE VS. TAMPAL, 244 SCRA 202 and PEOPLE VS. LEVISTE, 255 SCRA 238, the SC reversed the dismissal of the criminal case by the trial court based on “speedy trial” since the same was not predicated “on the clear right of the accused to speedy trial.” It is only when there is a clear violation of the accused’s right to speedy trial that the dismissal results in double jeopardy.

 

113. The accused was charged of theft of electricity based on the City Ordinance of Batangas City. After arraignment, the case was dismissed because it was found out that the same has prescribed because it was filed after more than 60 days. The Fiscal filed another information based on the Revised Penal Code. Has double jeopardy set in?

          Yes. If the accused was charged of “theft of electricity” based on the City Ordinance of Batangas and not based on the Revised Penal Code and later on the case is dismissed by the judge due to the fact that the crime has prescribed, the government can no longer charge the accused of the same crime under the Revised Penal Code since double jeopardy has set in. If an act is punished by law and an ordinance, acquittal or conviction in one shall bar prosecution from the other. (People vs. Relova, 148 SCRA 292)

 

114. The accused was charged of grave coercion before the MTC and was duly arraigned. The Judge dismissed it without any motion form the accused because the case is allegedly outside the MTC’s jurisdiction. Another information for the same offense was filed with the RTC which was likewise dismissed because of lack of jurisdiction. As such, the Fiscal filed a 3^rd information for grave coercion before the MTC. The accused pleaded double jeopardy. Is he correct?

          Yes. Since the accused was already arraigned in the 1^st information before the MTC which has jurisdiction over the same and the case was subsequently dismissed without his express consent, then double jeopardy has set in.

 

115. The accused was arraigned of homicide and entered a plea of guilty but prayed that he be given the chance to prove incomplete self-defense which the court granted. After presenting his evidence to prove “incomplete self-defense”, the court acquitted him because what was allegedly proven by him was complete self-defense. May the accused validly invoke double jeopardy if the Prosecutor moves for the reinstatement of the case for him to present the evidence of the prosecution?

          No because one of the requisites of double jeopardy is missing. There was no valid arraignment. This is so because his plea was one of guilty and yet, he was acquitted. In this case, he has to be re-arraigned for him to enter a plea of “not guilty” in order that he could be validly acquitted.

 

116. The accused was convicted of frustrated murder. Within 15 days from promulgation, he filed a Motion for New Trial based on a “newly-discovered evidence” which was granted by the court. After the presentation of the alleged “newly-discovered evidence”, the accused was acquitted. May the prosecution appeal the acquittal since the evidence presented was not really a newly-discovered evidence but a forgotten one and that even assuming that the same is a newly-discovered evidence, it was insufficient to overturn the evidence of guilt as proven by the prosecution.

          In the case of P vs. Judge Hernando, 108 SCRA 121, the Supreme Court held that indeed, the evidence presented was not “newly-discovered evidence” and that assuming it to be so, it was not sufficient to overturn the evidence of guilt as shown by the prosecution’s evidence. However, though the decision was erroneous, double jeopardy has set in and the government could no longer appeal the decision. So even if the court obviously erred in the appreciation of the evidence resulting in a decision of acquittal instead of conviction, appeal would put the accused in double jeopardy. (Mazo vs. Mun. Court, 113 SCRA 217)

         

117. May the government appeal a judgment of acquittal or for the increase of the penalty imposed?

No, since double jeopardy has set in. (PEOPLE VS. HON. VELASCO, G.R. NO. 127444, 340 SCRA 207, SEPT. 13, 2000). As mandated by the Constitution, statutes and cognate jurisprudence, an acquittal is final and unappealable on the ground of double jeopardy, whether it happens at the trial court of a judgment of acquittal brought before the Supreme Court on certiorari cannot be had unless there is a finding of mistrial, as in Galman vs. Sandiganbayan.

However, if the accused was the one who appealed the decision of the CFI convicting him of homicide (though he was charged of murder), the appellate court may convict him of murder if the evidence warrants and that the lower court mis-appreciated the evidence. This is so because if the accused appeals the decision, the same will be subject to a complete re-examination of the evidence on record.

 

118. What is the “Supervening Fact Doctrine.”

         It simply provides that an accused’s conviction shall not be a bar to another prosecution for an offense which necessarily includes the offense charged in the former complaint or information when the graver offense developed due to supervening facts arising from the same act or omission constituting the former charge or that the facts constituting the graver charge became known only or were discovered after a plea was entered in the former complaint or information. (Section 7, Rule 117, 2000 Rules of Criminal Procedure; P vs. Tarok, 73 Phil. 260; P vs. Villasis, 46 O.G. 268; Melo vs. People, 85 Phil. 766; P vs. Buling, 107 Phil. 712; P vs. Adil, 76 SCRA 462; P. vs. Tac-an, 182 SCRA 601; and P vs. City Court of Manila, 121 SCRA 637

     

119. When may the “ex-post facto law” rule be invoked?

      Only if the law sought to be applied is a “criminal law or penal”. Otherwise, the same may not be invoked as when the questioned law involves the jurisdiction of the Sandiganbayan which is not a penal law. Ex post facto law prohibits the retrospectivity of penal laws. RA 8249 is not a penal law. It is a substantive law on jurisdiction which is not penal in character. (PANFILO M. LACSON VS. THE EXECUTIVE SECRETARY, THE SANDIGANBAYAN, ET AL., ROMEO ACOP & FRANCISCO ZUBIA, JR., G.R. No. 128096, January 20, 1999)

 

120. What are the different forms of ex-post facto law?

          In order that a law is an ex post facto law, the same must be one —

1. which makes an act done criminal before the passing of the law and which was innocent when committed, and punishes such action;
2. which aggravates a crime or makes it greater than when it was committed;
3. which changes the punishment and inflicts a greater punishment than the law annexed to the crime when it was committed;
4. which alters the legal rules of evidence and receives less or different testimony than the law required a the time of the commission of the offense in order to convict the defendant;
5. every law which, in relation to the offense or its consequences, alters the situation of a person to his disadvantage;
6. that which assumes to regulate civil rights and remedies but in effect imposes a penalty or deprivation of a right which when done was lawful;
7. deprives a person accused of a crime of some lawful protection to which he has become entitled, such as the protection of a former conviction or acquittal, or a proclamation of amnesty (KAY VILLEGAS KAMI, 35 SCRA 429; MEJIA VS. PAMARAN, 160 SCRA 457; TAN VS. BARRIOS, 190 SCRA 686; PEOPLE VS. SANDIGANBAYAN, 211 SCRA 241).

 

Source:

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

Baguio City

 

Pre-Bar Quizzer in Political Law – PART 2: Constitution of Liberty 91 – 100

91. May a person subject of extradition from another country and where the cases against him in said country are bailable, be allowed to post bail pending the extradition hearings?

          No. As held in UNITED STATES VS. JUDGE PURUGGANAN & MARK JUMENEZ, November, 2002, a person

3facing extradition proceedings is not entitled to bail even if the crime he was charged of in a foreign country is bailable. This is so because the constitutional provision on the right to bail under Art. III of the 1987 Constitution applies only to criminal cases, not in extradition proceedings. (EDUARDO RODRIGUEZ VS. THE PRESIDING JUDGE, RTC 17, MANILA, 483 SCRA 290). This is so because of the possibility of flight

 

92. In extradition cases, is the respondent therein entitled to notice and hearing before the issuance of a warrant of arrest against him?

         No. In Secretary of Justice vs. Judge Lantion, 322 SCRA 160 (The Mark Jimenez Case) , the Supreme Court on a 9-6 vote held that the extraditee is entitled to notice and hearing when a request for extradition by another country is still being evaluated. However, on Motion for Reconsideration in the same case, in a 9-6 decision, the Supreme Court held that the prospective extraditee is not entitled to notice and hearing while his case is still under evaluation because this would defeat the purpose of the arrest warrant since it could give warning that respondents would be arrested and even encourage them to flee but entitled to notice and hearing if the case is already filed in court. (EDUARDO RODRIGUEZ VS. THE PRESIDING JUDGE, RTC 17, MANILA, 483 SCRA 290)

          It is a different matter if at first, the extraditee was allowed bail. The cancellation of his bail bond may be made only after notice and hearing. Otherwise, his right to due process of law will be violated.

 

93. What is the “EQUIPOISE RULE”?

If the evidence in a criminal case is evenly balanced, the constitutional presumption of innocence tilts the scale of justice in favor of the accused and he should be acquitted from the crime charged. Where the inculpatory facts and circumstances are capable of two or more interpretations one of which is consistent with the innocence of the accused and the other consistent with his guilt, then the evidence does not fulfill the test of moral certainty and is not sufficient to support a conviction because of the accused’s constitutional presumption of innocence.(PEOPLE VS. DE LOS SANTOS, 355 SCRA 415)

 

94. May the court reverse the order of trial in a criminal case?

          No. such would violate the right of the accused to presumption of innocence. To be required to present his evidence first would be making him prove his innocence and not the State proving his guilt. (Alejandro vs. Pepito, 96 SCRA 322) However, if the accused does not object to such a procedure, then a reverse order of trial is allowed by the Rules. (Sacay vs. Sandiganbayan, July 10,l986) In fact it should be noted that under the newly adopted 1985 Rules of Criminal Procedure (Sec. 3e), Rule 119)the said procedure is now expressly sanctioned. Thus:

       “However, when the accused admits the act or omission charged in the complaint or information but interposes a lawful defense, the order of trial may be modified accordingly.”

 

95. What is the extent of the obligation of a counsel de oficio for an accused in a criminal case?

          While an accused may be given a counsel de oficio which is not a lawyer of his own choice because he could not afford the services of a de parte lawyer, only the faithful performance by counsel of his duty towards his client can give meaning and substance to the accused’s right to due process and to be presumed innocent until proven otherwise. Hence, a lawyer’s duty, especially that of a defense counsel, must not be taken lightly. It must be performed with all the zeal and vigor at his command to protect and safeguard the accused’s fundamental rights. The cavalier attitude of Atty. Manolo Brotonel of the PAO cannot go unnoticed. It is discernible in [a] his refusal to cross-examine Oleby Nadera (the complainant for RAPE); [b] the manner in which he conducted Maricris Nadera’s cross-examination; and [c] his failure not only to present evidence for the accused but to inform the accused of his right to do so, if he desires. (PEOPLE VS. NADERA, JR., 324 SCRA 490)

 

96. If the accused has the right to be present during the trial of his case, can he also refuse to appear during the hearings of his case?

          No. During arraignment, promulgation of the decision and when he is to be identified by the witnesses for the prosecution, he must be present. However, he can validly waive his presence after arraignment when he state in open court or in an affidavit that whenever a witness mentions his name during the presentation of the prosecution’s evidence, he admits that he is the one being referred to. (Aquino vs. Military Commission, 63 SCRA 546; P vs. Judge, 125 SCRA 269)

 

97. When may “speedy trial” be raised by the accused to cause the dismissal of his case? What kind of delays must occur before the same could be invoked?

         In JAIME BERNAT VS. SANDIGANBAYAN, May 20, 2004, it was held that the right to speedy trial is violated only if the proceedings were attended by vexatious, capricious and oppressive delays. The determination of whether the delays are of said nature is relative and cannot be based on mere mathematical reckoning of time. Particular regard to the facts and circumstances of the case. As held in the case of DE LA PENA VS. SANDIGANBAYAN, certain factors shall be considered and balanced to determine if there is delay, as follows:

     – Length of the delay;

     – Reasons for the delay;

     – Assertion or failure to assert such right by the accused; and

     – Prejudiced caused by the delay.

There is no violation of the right to speedy disposition of his case because petitioner failed to assert his constitutional right to a speedy disposition of his case. During the 8-year period prior to April 19, 2002, petitioner did not complain about the long delay in deciding his case.

 

98.   May the right to speedy disposition of cases be invoked for the dismissal of cases pending before quasi-judicial bodies like the Office of the Ombudsman?

          Yes, unreasonable delays like failure to decide a complaint against the respondent for more than three (3) years from the time all the pleadings were filed violates the respondent’s right to a speedy disposition of his case and the case must be dismissed. (DUTERTE VS. SANDIGANBAYAN, 289 SCRA 721; ANGCHANGCO VS. OMBUDSMAN, 269 SCRA 301)

 

The determination of whether an accused had been denied the right to speedy trial depends on the surrounding circumstances of each case. Although it took about 8 years before the trial of this case was resumed, such delay did not amount to violation of petitioner’s right to speedy trial considering that such delay was not attributable to the prosecution.

 

The factors to consider in determining whether or not such right has been violated:

1. length of delay,
2. reasons for such delay, and
3. assertion or failure to assert such rights by the accused and the prejudice caused by the delay.

(ii) Speedy Trial Act of 1998. The authority of the Secretary of Justice to review resolutions of his subordinates even after an information has already been filed in court does not present an irreconcilable conflict with the 30-day period prescribed in Sec. 7 of the Speedy Trial Act of 1998. (SUMBANG VS. GEN. COURT MARTIAL, G.R. NO. 140188, 337 SCRA 227, AUG. 3, 2000; BLANCO VS. SANDIGANBAYAN, G.R. NOS. 136757 – 58, 346 SCRA 108, NOV. 27, 2000; SOLAR TEAM ENTERTAINMENT, INC. HON. HOW, G.R. NO. 140863, 338 SCRA 51, AUG. 22, 2000).

 

99. Was the failure of the court to have a sign language expert to inform the accused who is a deaf-mute of the contents of the criminal information fatal to the validity of the proceedings which resulted in the conviction of the said accused?

          Yes because the accused was denied of the right to be informed of the nature and cause of the accusation against him. As such, the entire proceedings is null and void and another trial be conducted in the presence of a sign language expert to inform the accused of the proceedings. (Sales vs. CA, 164 SCRA 717; P vs. Crisologo, 150 SCRA 653)

 

100. May an accused in a “Homicide” case be convicted of “Murder” without violating his right to be informed of the nature and cause of accusation against him?

          Yes. Even if the Information was captioned “For Homicide” only but the body of the Information alleges “treachery” or “evident premeditation” and the same was read to the accused, he could be convicted of Murder. This is so because it is the body of the Information that is binding, not the caption thereof and therefore, the accused was duly informed of the nature and cause of accusation against him. (P vs. Resavaga, 159 SCRA 426)

 

Source:

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

Baguio City

 

Pre-Bar Quizzer in Political Law – PART 2: Constitution of Liberty 81 – 90

81. Is the extrajudicial confession of a suspect obtained without the assistance of a lawyer, but speaks of gospel truth, admissible in evidence?

          No. In PEOPLE VS. GALIT, 135 SCRA 465, PEOPLE VS. PANFILO CABILES, 284 SCRA 199; and PEOPLE VS. TAN, 286 SCRA 207, it was held that even if the confession of the accused speaks the truth, if it was made without the assistance of counsel, it is inadmissible in evidence regardless of the absence of coercion or even if it was voluntarily given.

          In order that a confession is admissible, the following requisites must be present:

1. the confession must be voluntary;
2. the confession must be made with the assistance of a competent and independent counsel;
3. the confession must be express; and
4. the confession must be in writing.

          The above requirements, however, are not applicable when the suspect makes an spontaneous statement, not elicited through questioning by the authorities, BUT GIVEN IN AN ORDINARY MANNER WHEREBY THE ACCUSED ORALLY ADMITTED HAVING COMMITTED THE CRIME. This was the decision of the Supreme Court in the case of PEOPLE VS. ANDAN, March 3, 1997 when the accused made a voluntary and verbal confession to the Municipal Mayor that he committed the crime imputed to him. As such, his uncounselled confession isadmissible in evidence.

 

82. What are the two (2) kinds of Coerced or Involuntary Confessions under Section 12, Art. III of the Constitution?

The two (2) kinds of Involuntary or Coerced Confessions under Art. III, Section 12 of the Constitution. These are:

1. confession which are the product of third degree methods such as torture, force, violence, threat, intimidation; and
2. those which are given without the benefit of Miranda Warnings. PEOPLE VS. OBRERO, 332 SCRA 190

 

83. What is the status of coerced confessions as evidence in court?

          Coerced or involuntary confessions are inadmissible as evidence being the “fruit of the poisoned tree.”

 

84. Is the right to counsel satisfied if the suspect was assisted by the Station Commander of the Western Police District while he was being investigated by the policemen of the same station? How about if the investigation is being conducted by the NBI and the suspect was ordered assisted by a lawyer-applicant therein?

There is no compliance of the constitutional requirement of competent and independent counsel to assist an accused during custodial investigation when the accused was assisted by the Station Commander of the WPD, Atty. De los Reyes, while being investigated by other policemen of the same police station because the interest of the police is naturally adverse to the accused. In fact, the SC in the case of PEOPLE VS. JANUARIO, 267 SCRA 608 held that a lawyer applying for a position in the NBI could not validly assist an accused being investigated then by the NBI. (PEOPLE VS. OBRERO, 332 SCRA 190)

 

85. Is the Right to Counsel available to a suspect during a police line-up?

         The Supreme Court had conflicting decisions on this aspect but ended up with the rule that since the accused will not be made to make any testimony during the police line-up, then he is not under custodial investigation and therefore, there is no need for him to be assisted by a lawyer. ( P vs. Usman Hassan, 157 SCRA 261; Gamboa vs. Judge Cruz, 162 SCRA 642; DE LA TORRE VS. CA, 294 SCRA 196 and PEOPLE VS. HATTON)

 

86. Is there a valid custodial investigation if the lawyer who assisted him during custodial investigation is a public attorney who was not chosen by the accused himself but given to him free of charge? Could the Fiscal also represent the accused during custodial investigation to satisfy the requirement of the Constitution that the accused is assisted by counsel?

          The counsel must be the choice of the accused or suspect. (P. vs. Alegria, September 28, 1990) Also, the Fiscal could not have protected the rights of the suspect, even if they are known to each other, since the Fiscal is there for the private complainant. (P. vs. Matos-Viduaya, September 11, 1990)

 

87. If the extrajudicial admission or confession of the accused is declared inadmissible as evidence, must the accused be acquitted as a matter of right?

          No. In PEOPLE VS. ROLANDO FELIXMINIA y CAMACHO, GR No. 125333, March 20, 2002, the Supreme Court held that though the extrajudicial confession of the accused was declared inadmissible for violation of his right to counsel, if there are evidence sufficient to prove his guilt beyond reasonable doubt, like circumstantial evidence, then he can still be convicted of the crime charged. This is so because [1] the compromising circumstances were duly proven which were consistent with each other and which lead with moral certainty to the conclusion that he was guilty of the crime charged; and [2] the totality of such circumstances eliminated beyond doubt the possibility of his innocence. In People vs. Mahinay, it was held that conviction may be had on circumstantial evidence provided the following requisites are present: [a] there is more than one circumstance; [b] the facts from which the inferences are derived are proven; and [c] the combination of all circumstances is such as to produce a conviction beyond reasonable doubt.

 

88. May a convicted person be released from jail through recognizance?

          No. In ATTY. JULIANA ADALIM-WHITE VS. JUDGE ARNULFO BUGTAS, RTC 2 BORONGAN, SAMAR, 475 SCRA 175, it was held that respondent Judge is guilty of gross ignorance of the law for ordering the release of Bagaporo pending the approval of his application for parole and before the completion of the minimum period of the sentence imposed upon him. It is patently erroneous to release a convict on recognizance. Section 24, Rule 114 provides that there shall no bail for a convict after final judgment. The only exception is when the convict applies for Probation before he commences to serve his sentence and that the offense and the penalty for the offense is within the purview of the Probation Law.

Sections 5 and 16 of Rule 114 of the Rules of Court (on the different kinds of bail) APPLIES ONLY TO AN ACCUSED UNDERGOING PREVENTIVE IMPRISONMENT DURING TRIAL OR ON APPEAL. THEY DO NOT APPLY TO A PERSON CONVICTED BY FINAL JUDGMENT AND ALREADY SERVING SENTENCE.

 

89. May a judge require “cash bond” only?

          No. The Rules provides for four (4) ways of posting bond and it is grave abuse of discretion to require cash bond only. (Almeda vs. Villaluz, 66 SCRA 38).

 

90. May an accused charged of a capital offense and the evidence of guilt is strong be granted bail?

          Yes. The purpose of the bond is to assure the court of the presence of the accused during the trial of his case. If the probability of “flight” is nil, then the accused may be allowed to post bail. (BELTRAN VS. THE SECRETARY OF JUSTICE, April, 2007)

 

Source:

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

Baguio City

Pre-Bar Quizzer in Political Law – PART 2: Constitution of Liberty 71 – 80

71. What are the requisites of “taking” in expropriation cases?

The Requisites of taking are:

1. the expropriator must enter the property;
2. the entrance must not be for just a momentary period;
3. the entry must be under warrant of color or title;
4. the property must be devoted for public use; and
5. the owner must be ousted from beneficial use of his land. (Rep. vs. Castellvi, 58 SCRA 336)

72. May a private property already used as a private cemetery be expropriated for a public purpose?

No, a private property which is already devoted to public use may not be expropriated for another public purpose. (City of Manila vs. Chinese Community, 40         Phil. 349).

 

73. What are the rights of a person under custodial investigation under the “Mahinay doctrine” or the “Expanded Miranda Doctrine”?

The rights are:

1. The person arrested, detained, invited or under custodial investigation must be informed in a language known to and understood by him of the reason for the arrest and he must be shown a copy of the warrant of arrest, if any; Every other warnings, information or communication must be in a language known to and understood by said person;
2. He must be warned that he has the right to remain silent and that any statement he makes may be used as evidence against him;
3. He must be informed that he has the right to be assisted at all times and have the presence of an independent and competent lawyer, preferably of his own choice;
4. He must be informed that if he has no lawyer or cannot afford the services of a lawyer, one will be provided for him; and that a lawyer may also be engaged by any person in his behalf, or may be appointed by the court upon petition of the person arrested or one acting in his behalf;
5. That whether or not the person arrested has a lawyer, , he must be informed that no custodial investigation in any form shall be conducted except in the presence of his counsel or after a valid waiver has been made;
6. The person arrested must be informed that, at any time, he has the right to communicate or confer by the most expedient means—telephone, radio, letter or messenger—with his lawyer (either retained or appointed), any member of his immediate family; or any medical doctor, priest or minister chosen by him or by any one from his immediate family or by his counsel, or be visited by/confer with duly accredited national or international non-governmental organization. IT SHALL BE THE RESPONSIBILITY OF THE OFFICER TO ENSURE THAT THIS IS ACCOMPLISHED;
7. He must be informed that he has the right to waive any of said rights provided it is made voluntarily, knowingly and intelligently and ensure that he understood the same;
8. In addition, if the person arrested waives his right to a lawyer, he must be informed that it must be done in writing AND in the presence of counsel, otherwise, he must be warned that the waiver is void even if he insist on his waiver and chooses to speak;
9. That the person arrested must be informed that he may indicate in any manner at any time or state of the process that he does not wish to be questioned with the warning that once he makes such indication, the police may not interrogate him if the same had not yet commenced, or the interrogation has begun;
10. The person arrested must be informed that his initial waiver of his right to remain silent, the right to counsel or any of his rights does not bar him from invoking it at any other time during the process, regardless of whether he may have answered some questions or volunteered some information or statements;
11. He must be informed that any statement OR EVIDENCE, as the case may be, obtained in violation of any of the foregoing, whether inculpatory or exculpatory, in whole or in part, SHALL BE INADMISSIBLE IN EVIDENCE.

 

74. What are the rights of a person under “custodial detention” for one suspected or arrested as a terrorist under the Human Security Act?

The rights are embodied under Section 21 thereof which states:

Section 21. Rights of a person under custodial detention.- The moment a person charged with or suspected of the crime of terrorism or the crime of conspiracy to commit terrorism is apprehended or arrested and detained, he shall forthwith be informed by the arresting police or law enforcement officers to whose custody the person concerned is brought, of his or her right:

1. to be informed of the nature and cause of his arrest, to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel of his or her choice, the police or law enforcement officers concerned shall immediately contact the free legal assistance unit of the IBP or the Public attorney’s office (PAO). It shall be the duty of the free legal assistance unit of the IBP or the PAO’s thus contacted to immediately visit the person detained and provide him with legal assistance. These rights cannot be waived except in writing and in the presence of the counsel of choice;
2. informed of the cause or causes of his detention in the presence of his legal counsel;
3. allowed to communicate freely with his legal counsel and to confer with them at any time without restriction;
4. allowed to communicate freely and privately without restrictions with the members of his family or with his nearest relatives and be visited by them; and
5. allowed freely to avail of the services of a physician or physicians of choice.

 

75. Are the above rights available to a suspect if he is under investigation but by a private person?

No. (THE PEOPLE OF THE PHILIPPINES VS. JOSE TING LAN UY, JR., et al., 475 SCRA 248). The claim that his affidavit is inadmissible in evidence in accordance with section 12 [1] of the Bill of Rights is not tenable. The “investigation” under said provision refers to “custodial investigation where a suspect has already been taken into police custody and that the investigating officers begin to ask questions to elicit information and confessions or admissions from the suspect. Succinctly stated, custodial investigation refers to the critical pre-trial stage when the investigation ceases to be a general inquiry into an unsolved crime but has began to focus on a particular person as a suspect (People vs. Duenas, Jr., 426 SCRA 666). Clearly, therefore, the rights enumerated by the accused are not available BEFORE GOVERNMENT INVESTIGATORS ENTER THE PICTURE. The protective mantle of section 12, article III does not apply to administrative investigations (People vs. Judge Ayson, 175 SCRA 216); confession to a private individual (Kimpo vs. CA, 232 SCRA 53); verbal admission made to a radio announcer who was not a part of the investigation (People vs. Ordono, 334 SCRA 673); or even to a Mayor approached as a personal confidante and not in his official capacity (People vs. Zuela, 323 SCRA 589). In fact, even a videotaped interview where the accused willingly admit his guilt in the presence of newsmen is not covered by the said provision though the trial courts were warned by the supreme Court to take extreme caution in admitting similar confessions because of the distinct possibility that the police, with the connivance of unscrupulous media practitioners, may attempt to legitimize coerced extrajudicial confessions and place them beyond the exclusionary rule by having an accused admit an offense on television (People vs. Endino, 353 SCRA 307).

 

76. When is custodial investigation deemed to have started so as to entitle the suspect to be informed of his rights under the Mahinay Doctrine?

Custodial investigation begins when it is no longer a general inquiry into an unsolved crime but starts to focus on a particular person as a suspect, i.e., when the police investigator starts interrogating or exacting confession from the suspect in connection with an alleged offense.

THE PLACE OF INTERROGATION IS NOT DETERMINATIVE OF THE EXISTENCE OR ABSENCE OF CUSTODIAL INVESTIGATION BUT THE TONE AND MANNER OF QUESTIONING BY THE POLICE AUTHORITIES. Thus, there was custodial investigation when the police authorities, upon their arrest of some of the accused, immediately asked them regarding their participation in the commission of the crime , even while they were still walking along the highway on their way to the police station. (PEOPLE VS. BARIQUIT, 341 SCRA 600)

 

77. Are spontaneous admissions made before a person could be informed of his rights during custodial investigation admissible as evidence?

Yes. Spontaneous statements voluntarily given, as where appellant orally admitted killing the victim before the barangay captain (who is neither a police officer nor a law enforcement agent), do not fall under custodial investigation. Such admission, even without the assistance of a lawyer, does not violate appellant’s constitutional rights AND THEREFORE ADMISSIBLE IN EVIDENCE. (PEOPLE VS. DANO, G.R. NO. 117690, 339 SCRA 515, SEPT. 1, 2000; PEOPLE VS. MAYORGA, G.R. NO. 135405, 346 SCRA 458, NOVEMBER 29, 2000).

 

78. What are the requisites before an extrajudicial confession is admissible?

To be admissible in evidence, an extrajudicial confession must be: (i) voluntary; (ii) made with the assistance of competent and independent counsel; (iii) express; and (iv) in writing.

A suspect’s confession, whether verbal or non-verbal, when taken without the assistance of counsel, without a valid waiver of such assistance, regardless of the absence of coercion or the fact that it had been voluntarily given, is inadmissible in evidence, even if appellant’s confession were gospel truth. (PEOPLE VS. DANO, G.R. NO. 117690, 339 SCRA 515, SEPT. 1, 2000; PEOPLE VS. SAMOLDE, G.R. NO. 128551, 336 SCRA 632, JUL. 31, 2000).

To be admissible in evidence, an extrajudicial confession must be: (i) voluntary; (ii) made with the assistance of competent and independent counsel; (iii) express; and (iv) in writing.

A suspect’s confession, whether verbal or non-verbal, when taken without the assistance of counsel, without a valid waiver of such assistance, regardless of the absence of coercion or the fact that it had been voluntarily given, is inadmissible in evidence, even if appellant’s confession were gospel truth.

 

79. Is the presence of a lawyer to assist the suspect during custodial investigation sufficient to comply with the requirements of the Constitution?

          No. As held in PEOPLE VS. PATUNGAN, 354 SCRA 413, the mere presence of a lawyer is not sufficient compliance with the constitutional requirement of assistance of counsel. Assistance of counsel must be effective, vigilant and independent. A lawyer who could just hear the investigation going on while working on another case hardly satisfies the minimum requirements of effective assistance of counsel. Not only was the accused subjected to custodial investigation without counsel, he was likewise denied effective assistance of counsel during the taking of his extra-judicial confession.

 

80. From what time must the counsel assist the suspect during custodial investigation? Who must choose such counsel?

In PEOPLE V. JIMENEZ, G.R. No. 82604. December 12, 1991, it was held that the counsel must be present from the inception of the custodial investigation not at any time thereafter. Also, the lawyer who assists the suspect under custodial interrogation should be of the latter’s own choice, not one foisted on him by the police investigators or other parties. In this case, the former judge whose assistance was requested by the police was evidently not of Marcos Jimenez’ own choice; she was the police officers’ own choice; she did not ask Marcos if he was willing to have her represent him. This is not the mode of solicitation of legal assistance contemplated by the Constitution. Furthermore, the former judge was not present when Marcos was being interrogated by the police. While she asked him if he had voluntarily given the statements contained in the typewritten document, this is far from being substantial compliance with the constitutional duty of police investigators during custodial interrogation.

 

Source:
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
Baguio City

Pre-Bar Quizzer in Political Law – PART 2: Constitution of Liberty 61 – 70

61. Is the right to travel affected by the Human Security Act?

          Yes, 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

     Upon application of the prosecutor, the suspect’s right to travel shall be limited to the municipality or city where he resides or where the case is pending, in the interest of national security and public safety. Travel outside of said municipality or city, without the authorization of the court, shall be deemed a violation of the terms and conditions of the bail which shall then be forfeited as provided in the Rules of Court.

     These restrictions shall be terminated upon acquittal of the accused; or the dismissal of the case filed against him; or earlier upon the discretion of the court or upon motion of the prosecutor.

 

62. May President Marcos validly compel the government to issue him his travel papers in order that he could return to the Philippines from his US exile?

          No. (FERDINAND MARCOS, ET AL. VS. HON. RAUL MANGLAPUS, ET AL., G.R. NO. 88211, September 15, 1989 and the Resolution of the Motion for Reconsideration dated October 27, 1989). What is provided by the Philippine Constitution is the right to travel and not the right to return. These two (2) rights are different under the Universal Declaration of Human Rights and International Covenant on Civil and Political Rights. THE RIGHT TO RETURN TO ONE’S COUNTRY IS NOT AMONG THE RIGHTS SPECIFICALLY GUARANTEED BY THE BILL OF RIGHTS, WHICH TREATS ONLY OF THE LIBERTY OF ABODE AND THE RIGHT TO TRAVEL, BUT IT IS OUR WELL-CONSIDERED VIEW THAT THE RIGHT TO RETURN MAY BE CONSIDERED AS A GENERALLY ACCEPTED PRINCIPLE OF INTERNATIONAL LAW, UNDER OUR CONSTITUTION, IS PART OF THE LAW OF THE LAND.

 

63. What is the “residual power” of the President?

It is the power of the President in  balancing the general welfare and the common good against the exercise of rights of certain individuals. The power involved is the President’s RESIDUAL POWER to protect the general welfare of the people.

 

64. May a person out on bail be validly allowed to travel abroad?

            Yes, subject to the following requisites ( Manotoc vs. CA, 142 SCRA 149):

          He must however [1] convince the courts of the urgency of his travel, [2] the duration thereof, and [3] that his sureties are willing to undertake the responsibility of allowing him to travel.

 

65. Is the right to information on matters of public concern absolute?

          No. While the right of the people to information on matters of public concern shall be recognized and access to official records…shall be afforded the citizen, it must be subject to such limitations as may be provided by law as well as reasonable conditions imposed by public officials in custody of said records like the payment of the expenses of reproduction of public documents; the request must be done during office hours, etc.

 

66. May the COMELEC be compelled to publish the names of the nominees of the different party-list groups for the May 14, 2007 elections despite the prohibition on such publication as embodied by the Party-List Act?

            Yes, the COMELEC must publish the same despite the prohibition in the law. Such prohibition violates the right to information on matters of public concern on the part of the citizen. (bantay republic vs. comelec, may 4, 2007)

 

67. May the President validly prohibit members of her Cabinet as well as other officers in the executive department from attending investigations in aid of legislation by Congress?

          No. Such would violate the right of the people to information on matters of public concern. It is only through said investigations that the people will be informed of the workings of the different departments of the government. (SENATE OF THE PHILIPPINES, represented by SENATE PRESIDENT FRANKLIN DRILON, ET AL., VS. EXEC. SEC. EDUARDO ERMITA, ET AL., G.R. No. 16977, April 20, 2006 )

 

68. May a Barangay validly exercise the power of eminent domain?

          Yes, subject to the approval by the President.( Barangay Matictic vs. Elbinias, 148 SCRA 83)

 

69. What are the requisites before an expropriator may validly obtain a writ of possession to take over possession of the expropriated property?

          It depends:

1. If the expropriation is for a “National government projects” or “national infrastructure projects”, like those covered by the “Build-Operate-Transfer”, RA 8974 shall be followed. This means that there must be a [a] Complaint for expropriation which is sufficient in form and in substance; and [2] the 100% of the market value of the property sought to be expropriated must first be paid to the owner of the property. (REPUBLIC OF THE PHILIPPINES VS. JUDGE GINGOYON, 478 SCRA 474)

2. In ordinary expropriation cases, the rule is that in the case of BIGLANG-AWA VS. JUDGE BACALLA, 354 SCRA 562. It provides:

          Pursuant to Section 2, Rule 67 of the 1997 Rules of Civil Procedure and the doctrine laid down IN THE ROBERN DEVELOPMENT CASE, the only requisites for the immediate entry by the government in expropriation cases are:

• the filing of a complaint for expropriation sufficient in form and substance; and
• the making of a deposit equivalent to the ASSESSED VALUE OF THE PROPERTY SUBJECT TO EXPROPRIATION.

3. If the expropriation is being done by a Local Government Unit, the Supreme Court decision in the case of THE CITY OF ILOILO VS. JUDGE LEGASPI, RTC 22, ILOILO CITY, 444 SCRA 269, shall be complied with:

1. the complaint for expropriation filed in court is sufficient in form and substance; and
2. the expropriator must deposit the amount equivalent to 15% of the fair market value of the property to be expropriated based on its current tax declaration.

 

70. Who determines the just compensation in expropriation cases? What are the factors to be considered in determining the same?

          Determination of just compensation is a judicial function with the assistance or recommendation of the court-appointed commissioners. (Manotok vs. CA, May 21,1987)

          The factors to be considered in determining the just compensation/market value are:

                   1. cost of acquisition;

                   2. the current value of like proerties;

                   3. its actual or potential uses;

                   4. particular case of lands;

                   5. their size, shape, location; and

                   6. the tax declarations thereon.

          Finally, note that as held in the case of Republic vs. Santos, 141 SCRA 30, the market value as recommended by the board of commissioners appointed by the court were at best only ADVISORY AND PERSUASIVE AND BY NO MEANS FINAL OR BINDING. (BERKENKOTTER, INC. VS. COURT OF APPEALS AND REPUBLIC OF THE PHILIPPINES, December 14, 1992).

 

Source:
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
Baguio City

 

Pre-Bar Quizzer in Political Law – PART 2: Constitution of Liberty 51 – 60

51. What is the procedure to be followed in the application of rally permits before the City or Municipal Mayor in accordance with BP Bilang 880?

          The applicants for a permit to hold an assembly should inform the licensing authority of the date, the public place where and the time when it will take place. If it were a private place, only the consent of the owner or the one entitled to its legal possession is required. Such application should be filed well ahead in time to enable the public official concerned to appraise whether there may be valid objections to the grant of the permit or to its grant but at another public place. It is an indispensable condition to such refusal or modification that the clear and present danger test be the standard for the decision reached. If he is of the view that there is such an imminent and grave danger of a substantive evil, the applicants must be heard on the matter. Thereafter, his decision, whether favorable or adverse, must be transmitted to them at the earliest opportunity. Thus if so minded, they can have recourse to the proper judicial authority. (BAYAN, KARAPATAN, KILUSANG MAGBUBUKID NG PILIPINAS (KMP), and GABRIELA vs. EDUARDO ERMITA, in his capacity as Executive Secretary, Manila City Mayor LITO ATIENZA, Chief of the Philippine National Police, Gen. ARTURO M. LOMIBAO, NCRPO Chief Maj. Gen. VIDAL QUEROL, and Western Police District Chief Gen. PEDRO BULAONG, G.R. No. 169848, May, 2006)

 

52. Is BP 880 unconstitutional for being vague (Void for Vagueness Doctrine) and overbroad (Overbreadth Doctrine)?

          No. It is very clear that it deals only on public assemblies that deals with rallies, mass actions and similar acts and not all kinds of public assemblies. As such, it is not vague.

          Neither is the law overbroad. It regulates the exercise of the right to peaceful assembly and petition only to the extent needed to avoid a clear and present danger of the substantive evils Congress has the right to prevent.

 

53. Is the Calibrated Pre-emptive Response (CPR) of the Arroyo Administration towards rallyists constitutional?

          The Court reiterates its basic policy of upholding the fundamental rights of our people, especially freedom of expression and freedom of assembly.   For this reason, the so-called calibrated preemptive response policy, the policy of dispersing rallyists through water cannons, has no place in our legal firmament and must be struck down as a darkness that shrouds freedom. It merely confuses our people and is used by some police agents to justify abuses. On the other hand, B.P. No. 880 cannot be condemned as unconstitutional; it does not curtail or unduly restrict freedoms; it merely regulates the use of public places as to the time, place and manner of assemblies. Far from being insidious, “maximum tolerance” is for the benefit of rallyists, not the government. The delegation to the mayors of the power to issue rally “permits” is valid because it is subject to the constitutionally-sound “clear and present danger” standard. (BAYAN, KARAPATAN, KILUSANG MAGBUBUKID NG PILIPINAS (KMP), and GABRIELA vs. EDUARDO ERMITA, in his capacity as Executive Secretary, Manila City Mayor LITO ATIENZA, Chief of the Philippine National Police, Gen. ARTURO M. LOMIBAO, NCRPO Chief Maj. Gen. VIDAL QUEROL, and Western Police District Chief Gen. PEDRO BULAONG, G.R. No. 169848, May, 2006)

 

54. Distinguish “clear and present danger”, “dangerous tendency rule” and “balancing of interest test”.

          Clear and present danger and dangerous tendency rule (whether the words used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that the State has the right to prevent)

          Dangerous tendency rule (If the words uttered create a dangerous tendency which the State has the right to prevent, then such words are punishable)

          The balancing-of-interest test (When a particular conduct is regulated in the interest of the public order, and the regulation results in an indirect, conditional, partial abridgment of speech, the duty of the courts is to determine which of the 2 conflicting interests demand greater protection under the circumstances presented.)

 

55. May Senator Juan Ponce Enrile prevent the movie producer of the EDSA I Revolution movie from including his participation during the uprising since it violates his right to privacy?

          No, as between Enrile’s right to privacy and the freedom of expression on the part of the movie producer, the latter’s right prevail because Enrile’s part in the movie deals solely on his acts as a public officer then. To exclude him as integral part of the revolution would be a distortion of history. (AYER PRODUCTION VS. JUDGE CAPULONG, JUAN PONCE ENRILE, ET AL., 160 SCRA 861)

 

56. May the mother of a murdered Mayor stop the filming of the life story of her son which would include his alleged   love affairs which would blacken his memory?

          Yes. As between the right to privacy invoked by the mother and the freedom of expression invoked by the movie producer, the state shall balance their respective interests. Since the movie producer is primarily after profits only, the right to privacy shall prevail. (Lagunzad vs. Gonzales).

 

57. What are the two (2) aspects of the RIGHT TO RELIGIOUS PROFESSION AND WORSHIP ? Distinguish each.

1. Freedom to believe; and
2. Freedom to act.

IN the first, such freedom is absolute. He may indulge in his own theories about life and death; worship any god he chooses, or none at all. He may not be punished even if he cannot prove what he believes.

In the second, if the individual externalizes what he believes, his freedom to do so becomes subject to the authority of the State. This is so because religious freedom can be exercised only with due regard to the rights of others. Example: “Go forth and multiply—cannot marry several times just to comply.

 

58. May a Jehovah’s Witnesses Member who is the Court Interpreter of RTC Branch 253, Las Pinas City, be held liable for “grossly immoral conduct” for living with a married man while her very own marriage was still subsisting?

         No. As held in ESTRADA VS. SOLEDAD ESCRITOR, 492 SCRA 1 (Resolution of the Motion for Reconsideration), 408 SCRA 1, the Supreme Court held that she is not liable for grossly immoral conduct because:

• She is a member of the Jehovah’s Witnesses and the Watch Tower Society;
• That the conjugal arrangement was in conformity with their religious beliefs;
• That the conjugal arrangement with Quilapio has the approval of her congregation.

Escritor likewise claimed that she had executed a “DECLARATION OF PLEDGING FAITHFULNESS” in accordance with her religion which allows members of the Jehovah’s witnesses who have been abandoned by their spouses to enter into marital relations. The Declaration thus makes the resulting union moral and binding within the congregation all over the world except in countries where divorce is allowed. Escritor’s conjugal arrangement cannot be penalized as she has made out a case for exemption from the law based on her fundamental right to religion.

 

59. May children of Jehovah’s Witnesses in public schools be forced to sing the National Anthem; recite the Patriotic Pledge; and Salute the Flag under pain of being expelled for non-compliance?

          No since such is in violation of their religious beliefs. (ROEL EBRALINAG, ET AL VS. THE DIVISION SUPERINTENDENT OF SCHOOLS OF CEBU, March 1, 1993). Religious freedom is superior to the statute requiring the pupils to sing the National Anthem; recite the Patriotic Pledge; and Salute the Flag. The doctrine laid down in Gerona vs. Secretary of Education was reversed.

 

60. How may the right to travel be impaired?

          The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law.

 

Source:

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

Baguio City

 

Pre-Bar Quizzer in Political Law – PART 2: Constitution of Liberty 41 – 50

41. Under the Human Security Act/Anti-Terrorism Law, Republic Act No. 9372, Approved on March 6, 2007 and effective on July 15, 2007, may police authorities the 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 of a person without violating the right to privacy?

          Yes under Sections 7 and 8 of the law which provides:

          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.

          Section 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.

 

42. Under the Human Security Act/Anti-Terrorism Law, Republic Act No. 9372, Approved on March 6, 2007 and effective on July 15, 2007, may police authorities examine the bank accounts of individuals without violating their right to privacy?

          Yes under Sections 27 and 28 of the said law. It provides:  

          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.

 

43. May a wife validly seize the diaries, checks and greeting cards of the alleged paramours of her husband and use the same as evidence in a legal separation case between them?

          As held in ZULUETA VS. CA, February 10, 1996, the evidence obtained by the wife who forcibly opened the drawers at the clinic of her doctor-husband and took diaries, checks and greeting cards of his alleged paramours is inadmissible as evidence.   This is so because the intimacies of husband and wife does not justify the breaking of cabinets to determine marital infidelity.

 

43. Is the freedom of speech and expression affected by the Human Security Act?

          Yes, under Section 26 of the law, it 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: “Prohibited from using any cellular phones, computers, or other means of communications with people outside their residence.”

 

44. What is the rule on criticisms on the acts of public officers?

          A public official should not be too onion-skinned with reference to comments upon his official acts. The interest of the government and the society demands full discussion of public affairs. (US vs. Bustos, 37 Phil. 731)

 

45. May the above rule applicable to private individuals who are public figures or private individuals who are candidates for public office?

         As held by the Supreme Court in the case of BAGUIO MIDLAND COURIER & CECILLE AFABLE VS. COURT OF APPEALS & RAMON LABO, JR., 444 SCRA 28 [November 25, 2004 , the article involving a private individual running for Mayor of Baguio City is still within the mantle of protection guaranteed by the freedom of expression provided in the Constitution since it is the public’s right to be informed of the mental, moral and physical fitness of candidates for public office. This was recognized as early as the case of US VS. SEDANO, 14 Phil. 338 [1909] and the case of NEW YORK TIMES VS. SULLIVAN, 376 U.S. 254 where the US Supreme Court held:

          “It is of the utmost consequence that the people should discuss the character and qualifications of candidates for their suffrages. The importance to the State and to society of such discussions is so vast, and the advantages derived so great, that they more than counterbalance the inconvenience of private persons whose conduct may be involved, and occasional injury to the reputations of individuals must yield to the public welfare, although at times such injury may be great. The public benefit from publicity is so great and the chance of injury to private character so small, that such discussion must be privileged.”

                   Clearly, the questioned articles constitute fair comment on a matter of public interest as it dealt with the character of the private respondent who was running for the top elective post in Baguio City at that time.

 

46. May the COMELEC validly prohibit columnists, radio announcers and TV commentator for commenting for or against any issue during the plebiscite period since they can air their views in a program sponsored by the COMELEC itself?

No, such would be an undue interference on the freedom of expression. IT IS STILL A RESTRICTION ON THE COLUMNIST, ANNOUNCER OR COMMENTATOR’S CHOICE OF THE FORUM WHERE HE MAY EXPRESS HIS VIEW. Plebiscite issues are matters of public concern and importance. The people’s right to be informed and to be able to freely and intelligently make a decision would be better served by access to an unabridged discussion of the issues, INCLUDING THE FORUM. The people affected by the issues presented in a plebiscite should not be unduly burdened by restrictions on the forum where the right to expression may be exercised. (PABLITO V. SANIDAD VS. COMELEC, G.R. NO. 90878, January 29, 1990)

 

47. What are the requisites that a newspaper must comply in order that its news item on an ongoing trial in court will not be actionable for being libelous?

          In Elizalde vs. Gutierrez,76 SCRA 448, it was held that in order that any news item relating to a judicial proceeding will not be actionable, the same must be [a] a true and fair report of the actual proceedings; [b] must be done in good faith; and [c] no comments nor remarks shall be made by the writer}

 

48. What are the tests of obscenity?

          The three (3) tests as held in Miller vs. California, 37 L. Ed. 2d 419 are:

1. Whether the average person applying to contemporary community standards would find the work appeals to prurient interest;
2. Whether the work depicts or describes a patently offensive sexual conduct;
3. Whether the work as a whole lacks serious literary , artistic, political or scientific value.

          

49. May the City Mayor order the confiscation without a search warrant magazines which he believes to be obscene? What is the correct procedure for him to follow?

          No.   (Pita vs. CA, 178 SCRA 362). A City Mayor may not order the warrantless seizure of magazines which he believes to be obscene; otherwise, he will become the complainant, prosecutor and judge at the same time. He should obtain a search warrant from a judge by following the procedure laid down by the Rules on how to secure a search warrant.

 

50. May public school teachers validly file mass leaves, instead of going on strike, after their demand to the government was not met.

          In GESITE et al. vs. COURT OF APPEALS, 444 SCRA 51 held that “these mass actions were to all intents and purposes a strike; they constituted a concerted and unauthorized stoppage of, or absence from, work which it was the teachers’ duty to perform, undertaken for essentially economic reasons.” It is undisputed fact that there was a work stoppage and that petitioners’ purpose was to realize their demands by withholding their services. The fact that the conventional term “strike” was not used by the striking employees to describe their common course of action is inconsequential, SINCE THE SUBSTANCE OF THE SITUATION, AND NOT ITS APPEARANCE, WILL BE DEEMED CONTROLLING.

          The right of government employees to organize IS LIMITED TO THE FORMATIONS OF UNIONS OR ASSOCIATIONS ONLY, WITHOUT INCLUDING THE RIGHT TO STRIKE. (Bangalisan vs. CA, 276 SCRA 619)

 

Source:

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

Baguio City

 

Pre-Bar Quizzer in Political Law – PART 2: Constitution of Liberty 31 – 40

31. May the police authorities validly search the rented apartment of a suspect without a search warrant or without the consent of the said person BUT WITH THE CONSENT OF THE OWNER OF THE APARTMENT?

          No. PEOPLE VS. DAMASO, 212 SCRA 547 abandoned the ruling in Lopez vs. Commissioner. In order that there is a valid consent to a warrantless search, the consent must come from the person directly affected by said warrantless search.

 

32. What is the “plain view doctrine” in connection with warrantless search and seizure?

As held in PEOPLE VS. VALDEZ, 341 SCRA 25, 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. As such, “plain view doctrine could not be used to justify the seizure of an unlicensed firearm in People vs. Damaso, supra, which was seen on top of a table after the opening of the apartment’s door without a warrant nor consent of the occupant therein.

 

33. Define probable cause in connection with the issuance of a search warrant.

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).

 

34. What is the “sufficiency test” in connection with applications for a search warrant?

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

 

35. May the police and military authorities validly search the citizens without warrant in checkpoints set up by them? What is the extent of the search that they may conduct?

          In RICARDO VALMONTE VS. GEN RENATO DE VILLA, GR No. 83988, September 29, 1989, the Supreme Court held that warrantless searches and seizures in 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 clarified that the military officers manning the checkpoints may conduct VISUAL SEARCH ONLY, NOT BODILY SEARCH.

 

36. Is an unlicensed firearm seized in the house of the accused without warrant by the military authorities, after they were given consent by the said owner of the house for them to search for rebel soldiers, admissible in evidence?

          No. In VEROY VS. LAYAGUE, 210 SCRA 97, the Supreme Court held that the owner of the house allowed the policemen to enter his house because they will be searching for rebel soldiers but when inside the house, they instead seized an unlicensed firearm. As such, there was no consent to search for firearms and as a consequence, the firearm is not admissible as evidence.

 

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

          It depends:

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)

 

38. If the applicant for a search warrant testifies that his knowledge of the facts and circumstances was derived from a “highly reliable informant”, would such fact sufficient to convince the court of the existence of “probable cause”?

          No, knowledge based on hearsay information does not justify the existence of probable cause. (Prudente vs. Dayrit, supra.) In fact, when the statements in the affidavits of witnesses are mere generalities, mere conclusions of law, and not positive statements of particular acts, the warrant issued by virtue thereof is not valid. Ponsica vs. Ignalaga, July 31,1987)

 

39. In the seizure of alleged pirated tapes, what must the applicant submit to the court in order that the search warrant to be issued shall be valid?

          In Century Fox vs. CA, 164 SCRA 655 and COLUMBIA PICTURES VS. CA, 261 SCRA 144, it was held that 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)

 

40. What is the effect on the evidence obtained in violation of Sections 2 and 3 of Article III?

          Any evidence obtained in violation of Sections 2 and 3 of Article III shall be inadmissible for any purpose in any proceeding.

 

Source:

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

Baguio City

 

Pre-Bar Quizzer in Political Law – PART 2: Constitution of Liberty 21 – 30

21. May a judge validly issue a Warrant of Arrest based from the Information and the Resolution of the Prosecutor finding probable cause against the accused?

No. There will be no basis for the issuance since the Prosecutor is neither the complainant nor the witness to the case. He could not have determined probable cause based from the said documents. (VICENTE LIM,SR. AND MAYOR SUSANA LIM VS.HON. N. FELIX , G.R. NO. 99054-57). As held 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.

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 determination.

(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.

 

22. As to the requirement that the judge must “personally” determine probable cause, must he examine the complainant and his witnesses face to face in order to comply with the said constitutional provision?

It depends.

In connection with the issuance of a SEARCH WARRANT, he must personally examine the complainant and the witnesses, with searching questions, face to face.

In connection with the issuance of a warrant of arrest, however, the word “personally” after the word determined does not necessarily mean that the judge should examine the complainant and his witnesses personally or face to face before issuing the   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. SOLIVEN VS. MAKASIAR, 167 SCRA 393

 

23. Is the judge bound by the findings of existence of “probable cause” by the Prosecutor as indicated in his Certification in the information so that the issuance of a warrant of arrest is only ministerial? If not satisfied of the existence of probable cause, may the judge require the Prosecutor to submit additional evidence?

The judge is not bound by the findings of the Prosecutor because the said finding is only “probable cause” that a crime was committed. Probable cause to justify the issuance of a warrant of arrest is a judicial function vested only in the judge. In fact, he can require the Prosecutor to submit additional evidence if he is not convinced of the existence of probable for the issuance of a warrant of arrest. (P. vs. Villanueva, 110 SCRA 465; Placer vs. Villanueva, 126 SCRA 463).

 

24. Is “Operation Kapkap” being done by the police because the suspect has something bulging in his waist and keeps on touching his abdomen as if touching a gun valid?

As held in PEOPLE VS. MENGOTE, G.R. No. 87059, June, 1992, 210 scra 174, “Operation Kapkap” or warrantless search without probable cause is unconstitutional. Such search is valid only if covered by Section 5, Article 113 of the Rules of Court which 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.

Compare this case to 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 was declared valid by the Supreme Court. Note, however, that in MALACAT VS. CA, 283 SCRA 159, the SC held that mere suspicions not sufficient to validate warrantless arrest.

 

25. May the Iloilo Police arrests without warrant or search the person disembarking from a ship passenger without warrant based solely on an information relayed to them by an informant that the suspect’s bag contains marijuana?

No. As held in PEOPLE vs. AMMINUIDIN, 163 SCRA 402   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.

 

26. In arrests without warrant based on the fact that a crime has just been committed, what kind of knowledge is required on the part of the arresting officer?

In PEOPLE VS. GALVEZ, 355 SCRA 246, the Supreme Court held that t he 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.

 

27. What is the effect on the illegality of the arrest by the subsequent act of the accused in posting bond for his provisional liberty and entering a plea during his arraignment?

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. (PEOPLE VS. GALVEZ, 355 SCRA 246)

 

28. Is a warrantless search and seizure by a private individual valid?

Yes, since the constitutional provision is not applicable to him. (PEOPLE OF THE PHILIPPINES VS. ANDRE MARTI, G.R. NO. 81561, January 18, 1991; SILAHIS INTERNATIONAL HOTEL, INC. VS. ROGELIO SOLUTA, ET AL., 482 SCRA 660)

 

29. What are the requisites of a valid search incidental to a valid arrest?

As held in 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. Or as held in 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.

 

30. If the accused was validly arrested without warrant inside a night club for illegal possession of firearm, may the arresting officers validly search his car parked several meters from the place of arrest based on “search incidental to a valid arrest”?

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 because of his consent, not due to search incidental to a valid arrest. 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. (PEOPLE VS. GO, 354 SCRA 338)

      

Source:

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

Baguio City

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:

1. Notice; and
2. Hearing

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:

1. There must be real and substantial distinctions;
2. It must be germane tot he purposes of the law;
3. It must not be limited to existing conditions only; and
4. 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:

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. (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)

 

Source:

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

Baguio City