CONSTITUTIONAL CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
“All the effort in the world won't matter if you're not inspired.” ― Chuck Palahniuk, Diary 26 July 2012 DUE PROCESS AND EQUAL PROTECTION AS LIMITATIONS ON POLICE POWER, EMINENT DOMAIN AND TAXATION A. Fundamental Principles on Constitutional Law and the Bill of Rights
Okay, now we are starting with the Bill of rights. Based on the discussions of fundamental powers, you already know police power, eminent domain and the power to tax. Their constant is that they are called inherent. Once the State comes into being, meaning the elements of the state - people, territory, government, sovereignty are present and existing, these fundamental powers can be exercised without any need of a constitutional or statutory conferment. The provisions in the Constitution as well as in related issuances by Congress in terms of statute are therefore considered as limitations of these fundamental powers.
Now, this power can be used through the exercise of eminent domain or through the exercise of the power to tax. For example, there is a regulation on importation so that there is protection of the interest of the Filipino manufacturer or producer, the State may impose higher duties and taxes for imported products. So while ostensibly it is considered as a taxation measure, the actual or real intent of the regulation is to protect or promote the local manufacturers.
For the valid exercise of police power, the police power is considered the most limitable, most demanding of all the powers of State. It is the most demanding because it would affect any human activity that can be imaginable in terms of regulation. It is however dynamic because it is supposed to adapt to the demands of the times. What have been considered as valid regulations before in the exercise of certain rights may no longer be considered valid today because they are no longer considered part of the regulation.
It can also be through eminent domain; the classic exercise is the enactment of the CARP law. The CARP law has long been declared as not unconstitutional as early as the case of Association of Small Sma ll Land Owners vs. v s. DAR Secretary where the SC said it is actually not purely an exercise of eminent domain for taking of real property for public use upon giving of just compensation comp ensation because it is actually a regulatory measure to regulate property ownership for the promotion of common good based on the social justice provisions in the Constitution equitably defusing wealth by supposedly distributing these lands. That is the intent of the Constitution, to give to the poor and take from the rich.
Lawful Subject viz Lawful Means Now the general test used for the exercise of police power, would be 1) the lawfulness of the subject or subject or lawful subject and and 2) the lawfulness of the means or means or lawful means. The lawfulness of the subject simply answers the question of which interest should be protected by reason of the regulation or the exercise of police power. More or less, this refers to any public interest matter. So if what is to be protected is the interest of the many as compared to a few, then the required lawfulness of the subject is generally satisfied or complied with. Now, the
1
lawfulness of the means means require that there must be a causal connection between the means employed to achieve the purposes of the regulation. The means must be reasonable by themselves because even if the objective of the regulation is for public interest but if the means are unreasonable, they may not be considered as valid or legal means, and the regulatory measures maybe tested for the lawfulness of the means. This is where most of the cases in police power are destined because the lawfulness of the subject is generally given whereas the lawfulness of the means would have tested whether or not these are reasonable or necessary in order to achieve the objectives of the law. It does not follow the general principle that the end should justify the means. The means must be reasonable or lawful.
Eminent Domain
Association of Small Landowners vs. Secretary of DAR G.R. No. 78742 July 14, 1989 FACTS: Article FACTS: Article XIII on Social Justice and Human Human Rights includes a call for the adoption by the State of an agrarian reform program. The State shall, by law, undertake an agrarian reform program founded on the right of farmers and regular farm workers, who are landless, to own directly or collectively the lands they till or, in the case of other farm workers, to receive a just share of the fruits thereof. RA 3844, Agricultural Land Reform Code, had already been enacted by Congress on August 8, 1963. This was
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pe •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Panga ndatun•Pinoon•Go•Pangandaman• ndaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Maga •Dumagan•Limbo-Cabuhat •Belen•Rubinos•Magabilen•Trinidad•Ley bilen•Trinidad•Leyes•Givero•Travilla• es•Givero•Travilla•Elman•Paras•Tinapa Elman•Paras•Tinapay•Orcullo•Macla•La y•Orcullo•Macla•Ladeza deza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
substantially superseded almost a decade later by PD 27, which was promulgated on Oct 21, 1972, along with martial law, to provide for the compulsory acquisition of private lands for distribution among tenant-farmers and to specify maximum retention limits for landowners. On July 17, 1987, Cory issued EO 228, declaring full land ownership in favor of the beneficiaries of PD 27 and providing for the valuation of still unvalued lands covered by the decree as well as the manner of their payment. This was followed on July 22, 1987 by PP 131, instituting a comprehensive agrarian reform program (CARP), and EO 229, providing the mechanics for its implementation. After which is the enactment of RA 6657, Comprehensive Agrarian Reform Law of 1988, which Cory signed on June 10. This law, while considerably changing the earlier mentioned enactments, nevertheless gives them suppletory effect insofar as they are not inconsistent with its provisions. In considering the rentals as advance payment on the land, the executive order also deprives the petitioners of their property rights as protected by due process. The equal protection clause is also violated because the order places the burden of solving the agrarian problems on the owners only of agricultural lands. No similar obligation is imposed on the owners of other properties. The petitioners maintain that in declaring the beneficiaries under PD 27 to be the owners of the lands occupied by them, EO 228 ignored judicial prerogatives and so violated due process. Worse, the measure would not solve the agrarian problem because even the small farmers are deprived of their lands and the retention rights guaranteed by the Constitution. In his comment the Sol-Gen asserted that the alleged violation of the equal protection clause, the sugar planters have failed to show that they belong to a different class and should be differently treated. The Comment also suggests the possibility of Congress first distributing public agricultural lands and scheduling the expropriation of private agricultural lands later. From this viewpoint, the petition for prohibition would be premature. ISSUE: Whether or not there was a violation of the equal protection clause. HELD: The SC ruled affirming the Sol-Gen. The argument of the small farmers that they have been denied equal protection because of the absence of retention limits has also become academic under Sec 6 of RA 6657. Significantly, they too have not questioned the area of such l imits. There is also the complaint that they should not be made to share the burden of agrarian reform, an objection also made by the sugar planters on the ground that they belong to a particular class with particular interests of their own. However, no evidence has been submitted to the Court that the requisites of a valid classification have been violated. Classification has been defined as the grouping of persons or things similar to each other in certain particulars and different from each other in these same particulars. To be valid, it must conform to the following requirements:
2
(1) it must be based on substantial distinctions; (2) it must be germane to the purposes of the law; (3) it must not be limited to existing conditions only; and (4) it must apply equally to all the members of the class. The Court finds that all these requisites have been met by the measures here challenged as arbitrary and discriminatory. Equal protection simply means that all persons or things similarly situated must be treated alike both as to the rights conferred and the liabilities imposed. The petitioners have not shown that they belong to a different class and entitled to a different treatment. treatment. The argument that not only landowners but also owners of other properties must be made to share the burden of implementing land reform must be rejected. There is a substantial distinction between these two classes of owners that is clearly visible except to those who will not see. There is no need to elaborate on this matter. In any event, the Congress is allowed a wide leeway in providing for a valid classification. Its decision is accorded recognition and respect by the courts of justice except only where its discretion is abused to the detriment of the Bill of Rights.
Now eminent domain as understood is the highest and most exact idea of property right… the State which entitled to acquire private property in the concept of compulsory sale. The traditional characterization of the exercise of eminent domain is based on the old and traditional concept of eminent domain as taking of lands. Under the so-called Regalian doctrine, doctrine, all lands originally belong to the State. It is only by State allowance that these lands are thereafter classified as alienable, disposable and therefore can be subjected to private ownership. So when the State takes these lands, it is just taking what it rightfully belongs to it. But as we all know, private property in eminent domain, as society develops, is not necessarily limited to real property or lands. There can be expropriation of private property which includes personal property except the two traditional exceptions of money, and those considered personal actions or personal options of an individual. These cannot be expropriated. Other than these, any other property, even if they form intangible things like connectivity, for example mobile phone providers, as held in the case of PLDT. PLDT. The SC has said that the compulsory interconnection in PLDT and other providers would come in the form of expropriation. The property of PLDT is private property even if we talk about connectivity, which is also considered private property. REPUBLIC OF THE PHILIPPINES PHILIPPINES VS. PLDT 26 SCRA 620 (1969) FACTS: FACTS: Public petitioner commenced a suit against private respondent praying for the right of the Bureau of Telecommunications to demand interconnection between the Government Telephone System and that of PLDT, so that the
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pe •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Panga ndatun•Pinoon•Go•Pangandaman• ndaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Maga •Dumagan•Limbo-Cabuhat •Belen•Rubinos•Magabilen•Trinidad•Ley bilen•Trinidad•Leyes•Givero•Travilla• es•Givero•Travilla•Elman•Paras•Tinapa Elman•Paras•Tinapay•Orcullo•Macla•La y•Orcullo•Macla•Ladeza deza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
Government Telephone System could make use of the lines and facilities of the PLDT. Private respondent contends that it cannot be compelled to enter into a contract where no agreement is had between them. ISSUE: ISSUE: Whether or not interconnection between PLDT and the Government Telephone System can be a valid object for expropriation. HELD: HELD: Yes, in the exercise of the sovereign power of eminent domain, the Republic may require the telephone company to permit interconnection as the needs of the government service may require, subject to the payment of just compensation. The use of lines and services to allow inter-service connection between the both telephone systems, through expropriation can be a subject to an easement of right of way.
Now, in eminent domain, while the limitations are provided for in the Constitution that there must have to be taking, being in the concept of ousting the owner from its beneficial or common use and it has to be more than a momentary period, there must be a degree of permanence required. It must also take private property as we said except those two which cannot be expropriated; it must also be taking for public use. Concept of Public Use The concept of public use has developed through jurisprudence and as required by the demands of time. While traditionally eminent domain is exercised over land, the old concept is that, there must have a benefit to the public in general. So that the old concept of public use is based on the number of people benefited. So if it is only benefiting the few, the taking is not considered for public use because the direct advantage must be for the many. However, in several cases, usually involving land reform whether in rural and urban areas, the SC has allowed that taking of these lands for distribution for a few is considered taking for public use. Although it would only directly benefit the few, it would actually indirectly benefit the public. The same with the taking of lands for conversion into economic zones, like ecotourism zones. While only few individuals benefit directly from the taking, but because of the business employment that these businesses will generate, there will be indirect benefit to workers and their family so taking there is for public use. Just Compensation
3
Just compensation is actually a concept and theory that it must be based on owner's loss. However, there are several laws on the matter of just compensation. The traditional one would refer to the cost of the land or market value, which will consider of course the cost of acquisition, the present use of the property, the potential use of the property. In later legislations like the CARP law, the law has even provided for certain formulae for computing the value of the property while there are some laws which have also provided for the minimum value, meaning the law has stated in the provision that the minimum value of the property should be this much. Now with respect to the determination of just compensation, the principle has always been that the owner must have to be given a chance to prove the value of the property though that is not necessarily the value that has to be paid, at least, there is that opportunity in compliance to the requirement of due process. The owner has to be given that. So while a law may provide for the minimum value or say formula to compute the value, the owner must be allowed to present evidence to prove the value of just compensation. In the end, that would be for the court to decide how much the value should be. Now there are instances when a property, let us say land, most especially land, where not the entire property is expropriated, so there is a remainder for the owner to use. Now, the use of the remainder will have to be considered under the concept of consequential damage or consequential benefit. If the remainder of the property will not be that useful to the owner that will be considered consequential damage and therefore that will have to be added to the value of the property. Conversely, if the remainder after the expropriation will increase in value benefitting the owner more than its potential uses before the expropriation, then the property owner must have to suffer because the consequential benefit will have to be deducted from the just compensation. Question of Propriety Now, despite all these, that all these conditions or requirements of the Constitution are complied with, the first question to ask in the exercise of eminent domain is always the question of propriety or necessity. Is it necessary to exercise the power of eminent domain or expropriation? In several cases, the SC ruled that eminent domain is an extraordinary remedy if the property owner is not willing to sell. Which presupposes therefore that when the expropriator would want to take property, there is no immediate expropriation but there must have to be an offer to buy
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pe •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Panga ndatun•Pinoon•Go•Pangandaman• ndaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Maga •Dumagan•Limbo-Cabuhat •Belen•Rubinos•Magabilen•Trinidad•Ley bilen•Trinidad•Leyes•Givero•Travilla• es•Givero•Travilla•Elman•Paras•Tinapa Elman•Paras•Tinapay•Orcullo•Macla•La y•Orcullo•Macla•Ladeza deza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
the property at the level of the buyer and the seller. It is only when the property owner is not going to sell or that there is no agreement as to the price to the property like in an ordinary sale, that there should be eminent domain. So the question of necessity or propriety.
that the just compensation is for the entire property which is affected by the transmission towers and transmission lines because the owner is ousted from the full use of the property.
In one old case, the question of propriety was asked because the private property of the petitioner was expropriated despite the fact that the local government unit has existing vacant property. The question is, could the expropriator expropriate a property, in this case a LGU, for purposes of let us say construction of an amusement center when it has an existing vacant lot which could serve the same purpose? The SC said you cannot because again it is always be a question of propriety or necessity.
By the way, the power to tax, there is not much to discuss than your knowledge of taxation. The only reference to the part of tax in the Constitution is the uniform and equitable rule in taxation under Article VI section 28 paragraph 1,
By the way, in taking, there is a concept that the taking is not limited to the literal act of taking. The taking now is characterized as ousting the owner of the beneficial of use of the property or preventing the owner from exercising full enjoyment of the right to use over his property. So, good examples would be, in a dam project, if there is a dam to be constructed, the lands upstream would necessarily be inundated. There is no actual taking. The expropriator, NAPOCOR in that case, did not actually take actual property but because of the increase in the level of the water upstream because of the construction of the dam, necessarily the riverbanks of the property by the banks would be inundated. So the owners will be deprived of full enjoyment of the potential uses of the property. So that will also be considered as taking. Or if there is a prohibition on easement, then there would also be taking because the property cannot be fully enjoyed by the owner. Good example would be if your property is adjacent to an airport runway. You can be prevented from constructing a highrise building. It could cause safety issues on the airplanes taking of and landing to the airport. So while the property is for you to enjoy, you can be prevented from fully enjoying the property. Or commonly, you may have been exposed to the transmission towers or transmission lines. In the old cases you must have come across decisions where the SC said that the property owner will have to be paid just compensation in the form of an “easement of the right of way” because you can still use the parts of the land surrounding transition towers and under or beneath the transition lines. However, in later cases, the SC says no, that should be fully paid because the property owners have actually been deprived of the full enjoyment of the property. So, from the old concept of just paying the easement of right of way for the transmission lines crossing your property, now the entire value of the property has to be paid for just compensation. This means
4
Power of Taxation
“(1) The rule of taxation shall be uniform and equitable. The Congress shall evolve a progressive system of taxation” the flexible tariff laws under paragraph 2, “(2) The Congress may, by law, authorize the president to fix within specified limits, and subject to such limitations and restrictions as it may impose, tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts within the framework of the national development program of the Government.” the exemption under paragraph 3, for real property tax on charitable institutions, etc. “(3) charitable institutions, churches, and parsonages or convents appurtenant thereto, mosques, non-profit cemeteries, and all lands, buildings, and improvements, actually, directly, and exclusively used for religious, charitable, or educational purposes shall be exempt from taxation.” Under paragraph 4, tax exemption can be granted provided there is majority vote of Congress. “(4) no law granting any tax exemption shall be passed without the concurrence of a majority of all the members of Congress.” Article XIV, Section 4, paragraph 3 revenues and assets of non-stock, nonprofit educational institution are exempt from income taxes
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
(3) All revenues and assets of non-stock, non-profit educational institutions used actually, directly, and exclusively for educational purposed shall be exempt from taxes and duties. xxx”
The power to tax cannot be delegated except to the local government. From the national government, the Local Government Code provides taxing power to the LGUs. It cannot be delegated to private entities.
and paragraph 4 of the same article, grants, endowments, donations or contributions which are actually, directly and exclusively used educational purposes are exempt.
Now, we have had discussed the rule on construction of constitutional provisions. Now, generally, with respect to the Bill of rights, the Bill of rights is supposed to be, in the study of constitutional law, limitation of the state powers. They are therefore claimable exclusively against the exercise of the any of the state powers. In a limited sense however, there can be exercise of or claim of the bill of rights to limit acts of private individuals or private entities when – at least in 2 occasions: 1) when the action of the private entity is considered as state action. Remember the case of Manila Prince Hotel vs. GSIS. Manila Hotel is supposed to be considered as a GOCC. GSIS is also considered also a GOCC but can the acts of these entities be questioned and limited by the bill of rights? The SC said in a limited sense, it can considered state action they can be limited by the bill of rights.
“(4) Subject to conditions prescribed by law, all grants, endowments, donations, or contributions used actually, directly, and exclusively for educational purposes shall be exempt from tax.” Now, these powers can be delegated. Police power can be delegated by Congress to the LGUs. That has been provided for under Section 16 of RA 7160. This is the General Welfare Clause. In Section 16 there are 2 distinct powers there of LGUs on police power. First would refer to the general grant of power to enact ordinances and regulate the activities for the protection of general welfare and second, those which Congress may delegate specifically to LGUs from time to time. If there is none, the LGUs can exercise police power under the general welfare clause. Section 16. General Welfare. - Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall ensure and support, among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific and technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants.
Eminent domain can be delegated not only to LGUs but also to private entities which are usually considered quasi-public corporations because of the services that they have, that they offer, like PLDT and all these Telcos, water districts, the electric companies and cooperatives. Under the National Electrification Administration Law, the electric cooperatives have the power to exercise eminent domain in relation to the services they are offering. So, not limited to LGUs but also to private entities.
5
MANILA PRINCE HOTEL vs. GSIS G.R. No. 122156 February 3, 1997 Pursuant to the privatization program of the government, GSIS decided to sell 30-51% of the Manila Hotel Corporation. Two bidders participated, MPH and Malaysian Firm Renong Berhad. MPH’s bid was at P41.58/per share while RB’s bid was at P44.00/share. RB was the highest bidder hence it was logically considered as the winning bidder but is yet to be declared so. Pending declaration, MPH matches RB’s bid and invoked the Filipino First policy enshrined under par. 2, Sec. 10, Art. 12 of the 1987 Constitution**, but GSIS refused to accept. In turn MPH filed a TRO to avoid the perfection/consummation of the sale to RB. RB then assailed the TRO issued in favor of MPH arguing among others that: 1. Par. 2, Sec. 10, Art. 12 of the 1987 Constitution needs an implementing law because it is merely a statement of principle and policy (not self-executing); 2. Even if said passage is self-executing, Manila Hotel does not fall under national patrimony.
ISSUE: Whether or not RB should be admitted as the highest bidder and hence be proclaimed as the legitimate buyer of shares. HELD: No. MPH should be awarded the sale pursuant to Art 12 of the 1987 Const. This is in light of the Filipino First Policy. Par. 2, Sec. 10, Art. 12 of the 1987 Constitution is self executing. The Constitution is the fundamental, paramount and supreme law
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
of the nation, it is deemed written in every statute and contract. Manila Hotel falls under national patrimony. Patrimony in its plain and ordinary meaning pertains to heritage. When the Constitution speaks of national patrimony, it refers not only to the natural resources of the Philippines, as the Constitution could have very well used the term natural resources, but also to the cultural heritage of the Filipinos. It also refers to our intelligence in arts, sciences and letters. Therefore, we should develop not only our lands, forests, mines and other natural resources but also the mental ability or faculty of our people. Note that, for more than 8 decades (9 now) Manila Hotel has bore mute witness to the triumphs and failures, loves and frustrations of the Filipinos; its existence is impressed with public interest; its own historicity associated with our struggle for sovereignty, independence and nationhood. Herein resolved as well is the term Qualified Filipinos which not only pertains to individuals but to corporations as well and other juridical entities/personalities. The term “qualified Filipinos” simply means that preference shall be given to those citizens who can make a viable contribution to the common good, because of credible competence and efficiency. It certainly does NOT mandate the pampering and preferential treatment to Filipino citizens or organizations that are incompetent or inefficient, since such an indiscriminate preference would be counter productive and inimical to the common good. In the granting of economic rights, privileges, and concessions, when a choice has to be made between a “qualified foreigner” and a “qualified Filipino,” the latter shall be chosen over the former.” **Section 10. The Congress shall, upon recommendation of the economic and planning agency, when the national interest dictates, reserve to citizens of the Philippines or to corporations or associations at least sixty per centum of whose capital is owned by such citizens, or such higher percentage as Congress may prescribe, certain areas of investments. The Congress shall enact measures that will encourage the formation and operation of enterprises whose capital is wholly owned by Filipinos. In the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos. The State shall regulate and exercise authority over foreign investments within its national jurisdiction and in accordance with its national goals and priorities.
An action of a private entity is considered a state action if the State is supposed to be, by the circumstances defined, to have acted employing itself to the controversy or the action in question. The other is 2) in the concept of the right to privacy. You all know that the Constitution does not provide for any provision with respect to rights to privacy. The nearest perhaps is
6
the right to privacy in correspondence and communication. And based on the ruling in the Zulueta case, the SC has somehow applied that section or provision in the Constitution to be claimable by a private individual against a private individual. Again, generally, these are only claimable against the State for those considered as state action. ZULUETA vs. CA February 10, 1996 FACTS: The wife forcibly opened the drawers at the clinic of her doctor-husband and took diaries, checks and greeting cards of his alleged paramours. Thereafter, she used the same in their legal separation case. ISSUES: (1) Whether or not there was a violation of the right to privacy. (2) Whether or not right to privacy can be invoked by a private individual. HELD: Said documents are inadmissible in evidence. This is so because the intimacies of husband and wife does not justify the breaking of cabinets to determine marital infidelity. The constitutional injunction declaring “the privacy of communication and correspondence [to be] inviolable” is no less applicable simply because it is the wife (who thinks herself aggrieved by her husband’s infidelity) who is the party against whom the constitutional provision is to be enforced. The only exception to the prohibition in the Constitution is if there is a “lawful order [from a] court or when public safety or order requires otherwise, as prescribed by law.” Any violation of this provision renders the evidence obtained inadmissible “for any purpose in any proceeding.”
There are several provisions in the Constitution which may refer to the rights to privacy, most common there is your right against reasonable search and seizure. But this is not a direct provision that the person has the right to privacy. “Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.” The State, under section 2, cannot search your house, cannot search your belongings, and cannot even arrest you without warrant, generally. That is because you are entitled to be left or left alone under the concept of right to privacy. There are other statutes on the right to privacy but they are more on statutory rights rather than constitutional rights. The discussion on the right to privacy as affecting private individuals, meaning the constitutional right is claimed against a private individual may be had in that limited respect. But largely, it should be claimed only against the State. Due Process: Substantive and Procedural Now, due process, the basic concept of due process is fairness. There has to be some form of fairness when the State would have to take some of our rights and there are two components there – the substantive and procedural. Substantive due process would refer to the intrinsic validity of the law, there is a proper exercise of the legislative power, there is a valid government purpose, the law is not oppressive and arbitrary, and part of the constitutional requirement to make a law effective is to comply the requirement of publication. If the law has not been passed in accordance with the processes of passing a bill under the Constitution, then it affects the substantive validity of such legislation. The procedural, this is simply characterized as that which hears before it condemns, proceeds upon inquiry and renders judgment only after trial. So, there has to be some form of opportunity on the part of the accused or defendant to be heard before judgment is rendered based on the rules with respect to trial. Now, the law or the concept of due process treats procedural due process differently in the judicial cases and the administrative cases. In administrative cases, you already know the several cardinal primary rights while in judicial cases there are technically four conditions. Impartial court with jurisdiction over the persons of the parties, there opportunity to be heard, and judgment is rendered upon a lawful hearing. The essence of procedural due process is based on the discussions in several cases would lead us to conclude that it is only an opportunity. For so long as the opportunity is there, and it has not been deprived of that party there is sufficient chance or opportunity for him to be heard then that is supposed to be complying with the constitutional
7
requirement of due process. Same with administrative cases because of the seven cardinal primary rights would not even require a formal type of hearing. What the procedural due process in administrative cases require substantially would still be on the opportunity to present evidence which is required in any proceeding. Now, the question is asked whether due process is a constitutional right or a statutory right. In certain respects, the general characterization should be that due process is a constitutional right because Section 1 would tell us that there is that Due Process Clause. But because of certain rules that the SC or the different administrative agencies may have issued and promulgated pursuant to a valid delegation that there are instances or issues which would refer to statutory grants. So for example, the right to appeal is technically not a constitutional right. The right to appeal is a statutory right being provided in the rules in cases as may be allowed or provided for. Because the constitutional right to due process is always complied when the case is heard for the first time. Because that is the only requirement that there is opportunity of the party to be heard and allowed to present his evidence before judgment is rendered in favor or against that party. So if that has been complied with, the other modes of appeal, review will have to be granted by law or the rules and not by the constitution. So if what is violated is the right to due process it must have to be distinguished whether it is a constitutional or statutory violation. In any cases however, if there is already that mode of review or appeal on the part the party as provided for by the rules, which has not been granted him or deprived of him, the usual disposition of the SC is that there is a violation of this due process. This disposition of the SC has also led to some questions on whether or not the twin notice rule for example, under the labor code, is a requirement of legal process. Before the employee is supposed to be terminated or otherwise disciplined, he must be entitled to the two notices. The first is the notice of the violation with the opportunity to explain. There must have to be an investigation where he may be represented by counsel if he so desires. And he must be given reasonable time for that. How many days is reasonable time? Is there a requirement on days? Okay. And the second notice if the employee will have to be disciplined, he mus6t have to be given a copy of the order in writing. Now if this is not complied with, the twin notice rule, is there a violation of due process rights? Now, you very well remember the case of Isetan where the SC has said that this is not actually a question of due process because the constitutional provision on due process is the State denying a person his right to due process. In the case of an
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
employee as against his employer, its not a case against the State against the employee. It is a case between the employer and the employee where the constitutional due process clause does not come into play. Nonetheless, the two notice rule is also a requirement if you have to stress it as a form of a statutory due process, to give that person the employee the right to be heard before he is condemned. Again, this is not the constitutional concept of due process but that which has been provided for by law. Imagine in the case of a student who is facing a disciplinary case before the school’s disciplinary tribunal. Now under the “procedural due process” in school’s disciplinary tribunal, we all know that the student must have to be informed as well in writing the charges with sufficient opportunity to present his evidence as well and that the tribunal must render its decision based on the evidence presented. The parties however do not have the right to cross-examine the witnesses against them. They only have the right to present witnesses for them in their favor or, to rebut the evidence or testimonies of the other party. Now that is part supposedly the procedural due process of school’s disciplinary court. Now the question is again asked is that the constitutional due process mentioned. That is not the constitutional due process because that is not between the student and the State. It is between the school and the student. Nonetheless, because of the requirement of fairness, that before a judgment or decision is rendered against a person he must be heard, there is that consideration that is also part of due process. Definitely, not the constitutional kind but those which may have been provided by statutes or by rules. Now, you’re familiar with the drug related cases. In the ordinary course of things, if you are the respondent in a criminal case, you are notified by the prosecutor that a case is filed against you and you are required to file a counter-affidavit. Then if there is no clarificatory hearing, there is a resolution to indict you for example. What is your first remedy available? File a motion for reconsideration. If that MOR is denied, what is your available remedy? You can file a Petition for Review before the Regional State Prosecutor or the Dept. of Justice depending on the type of hearing. After that from the RSPO you can DOJ Secretary or from DOJ Secretary you can go to the Office of The President, part of the administrative remedies that you must have to exhaust. Now in drug related cases and that there is a resolution, circular by the DOJ that in case the resolution of the prosecutor is for dismissal, it goes to an automatic review to the DOJ Secretary and the parties are not given a copy of the resolution. Now what if the Secretary of Justice will reverse the ruling from dismissal to
8
indicting. What is your remedy now from the DOJ Secretary? So you lose one or several remedies available. Or for example, under the law creating the Sandiganbayan, we have now several criminal cases which are triable with the Sandiganbayan against public officers. There are two considerations there. One is the salary grade of the employee. What’s the salary grade? 27 or higher. Lower if there is a conspiracy theory. And there are aside from that the consideration of the violation. There are only a few violation that are triable with the Sandiganbayan. Now if you are a public officer with salary grade less than 27, and your are charge none of those crimes triable with the Sandiganbayan law, from the trial court, say MTC, when you are convicted, you can appeal it to the RTC right? From the RTC to the CA. and eventually by certiorari with the SC. But if you are salary grade 27 and you commit any of those crimes, you are tried in the Sandiganbayan. And if you are convicted in the Sandiganbayan, where do you go? See. You lose some of these available remedies if you were not in that category. Now in one case, that case of Sandiganbayan, that has been asked if whether it violates equal protection because there is a different statement with respect to these covered employees and those not covered. Those not covered have several chances of paying their way to freedom (class laughs). Uh no. Having every decision reviewed or appealed, not paid. It was wrong. While those with the Sandiganbayan, they only have one chance of review or appeal. Well the SC held that is justified because they belong to different classes. But again, if it were to be due process, it will have to be in the constitution as against the exercise of the State of its power. So no person shall be denied of his life, liberty or property without due process. So when the person is charged for committing a criminal act, it is to deprtive him of his liberty because death penalty cannot be imposed as of the moment. So before that liberty can be taken away from him, he must have to be granted his due process. And that is the opportunity to be heard. In any other context if it were not as between the State, the due process takes a different perspective because it is no longer constitutional. Though cases will use the phrase “denial of due process” “violated his due process right” that should not be taken in the context of the constitutional grant but in another only statutory allowances.
PARAS, TINE TINAPAY, EARL
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
“The study of law can be disappointing at times, a
matter of applying narrow rules and arcane procedure to an uncooperative reality; a sort of glorified accounting that serves to regulate the affairs of those who have power--and that all too often seeks to explain, to those who do not, the ultimate wisdom and justness of their condition. But that's not all the law is. The law is also memory; the law also records a long-running conversation, a nation arguing with its conscience.” ― Barack Obama, Dreams from My Father
9
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
1 August 2012
DUE PROCESS IN GENERAL
PROCEDURAL AND SUBSTANTIVE DUE PROCESS When the State exercises its inherent powers with respect to the constitutional right guaranties, we have come across a lot of cases where the SC has tried to balance the conflicting interest– the power of the State in exercising its inherent power as against the protection of these constitutional rights. Generally, the SC has applied of what we now know as of balancing of interest test to determine whether the State authority or power should be upheld over the claim of individual protection of rights. In these cases, the SC has considered a conscious effort to determine in taking into consideration of these powers and would decide cases with respect to this interplay in a given situation or type of situation. With respect to these constitutional rights that we have, there is such a thing as hierarchy of rights. Which of these rights are preferred under the Constitution? Generally, there are 3 rights which occupy the highest or the first 3 in the hierarchy of rights which are generally not permitted to be derogated by any of the power of the State. These are: 1. arbitrary deprivation of life; 2. freedom from torture, cruel, degrading or inhuman punishment and; 3. freedom of thought, conscience and religion which includes political belief or aspirations and no religious test for exercise of civil or political rights. In the hierarchy of rights, these are the rights under consideration generally there are no state regulation. The rest of the rights in the hierarchy will be arbitrary arrest, detention, search and seizure which should include the provisions on ex-post facto or bill of attainder and involuntary servitude, the provision of equal protection, the rights of accused, presumption of innocence, rights during investigation, double jeopardy, privilege against self incrimination, the next will be the right to privacy and privacy of communication, next will be abode and travel, next will be speech, assembly and formation, and the last would be the right to association. These rights can be derogated or there can be permissible derogation particularly during times of emergencies.
10
The rest of the rights in our Constitution are only provided for peculiar to our Constitution. These are eminent domain, nonimpairment clause, right to bail, suspension of the writ of the habeas corpus, speedy disposition of cases, use of inadequate or substandard penal facility and non-imprisonment for debt. These are so called peculiar to our Constitution because they are not normally found in other constitutions or more else which discusses the so called hierarchy of rights. Now in substantive due process, there are 3 general standards being used. This has been discussed in the case of Southern vs. Anti-terrorism, 632 SCRA 146. These 3 general standards used to review substantive due process if there is a question of whether the law or action of the government violates substantive due process. The 3 tests are (very important!): 1. Strict Scrutiny Test 2. Intermediate Scrutiny Test 3. Rational or Differential Test. These 3 tests were originally or first used under the discussion of equal protection on the basis of classification. However, the SC has used these tests to test cases involving questions of substantive due process. In strict scrutiny test, there must have to be a compelling state interest that must have to be shown and that there are available means which are less restrictive to individual freedoms (murag ang dapat kay there are no other available less restrictive available means ☺) that must be proven also to allow a valid government regulation. So if a regulation is to be tested under strict scrutiny there must have to be 2 things to be proven; 1. That there is a compelling state interest that must have to be observed and 2. There are less restrictive available means of regulating individual liberties to allow possible state regulation. (I think dapat there are no other less restrictive available means ☺) But this test is usually used when the law in question deals with fundamental rights such as speech, gender or race. In strict scrutiny, the presumption of constitutionality has a very narrow application. To state it differently, the presumption of constitutionality may not even apply because the State has to prove that there is a compelling state interest and that there are no other less restrictive means available to regulate individual liberties.
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
In intermediate review, the substantiality of government interest is seriously looked into and the availability of less restrictive alternatives is considered. Here, 2 things; 1. There is government interest which must have to be shown to be substantial not necessarily compelling and 2. That there are available less restrictive alternatives for regulating liberties. This test is usually used when the laws in question affect gender and legitimacy. The last test is differential or rational review test. There is only a need to show that the regulation rationally further a legitimate government interest. There is no need for the court to inquire into the substantiality of that government interest or that there are less restrictive alternatives available. What is needed to be shown is that the legislation rationally furthers a government interest. This test is used when the law in question affects economics or the economy. So it largely depends on what rights are played as against a government interest. If it refers to fundamental rights, it’s always a strict scrutiny test, that there is no presumption of constitutionality, the State has the burden of proving 2 thingsstate interest that is compelling and that there are no less restrictive means available for regulating it. The strict scrutiny test has also been applied to laws dealing with freedom of the mind or political process. The US Supreme Court has expanded it to suffrage, judicial access and interstate travel. Interstate travel to us is actually liberty of travel within the Philippines. There is no interstate travel here because we are not comprised of sub states. These standards are applied when there is a question on validity of deprivation and as we all know if it is tested under judicial review, there’s always that question of grave abuse of discretion. While these are the general test used, there are individual tests which are applicable to individual exercises of authority. As we have mentioned before, like in police power, the 2 standard tests, the lawfulness of the subject and the lawfulness of the means. There are also standard tests used to determine of whether the regulation is valid. In eminent domain we have the validity of the exercise of regulation based on the elements or conditions.
In regulatory ordinance for local governments as stated in the case of White Light Corp. vs. City of Manila , 576 SCRA 1416, the local regulatory ordinance must have to be within the powers of the LGU to pass, must have been passed by the LGU according to the procedure as provided in LGC and third it must satisfy 6 other substantial requirements. These are: 1. Regulatory ordinance must not contravene the Constitution or the law; 2. It must not be unfair or oppressive; 3. It must not be partial or discriminatory; 4. It must not prohibit a legitimate activity but can only regulate; 5. It must be general and must be consistent with public policy and; 6. The ordinance must not be administrative (?) (please check this because ingon ni sir admin pero sa case na White Light it must not be unreasonable) hite Light Corporation s. City of Manila G.R. No. 122846. January 20, 2009 Facts: On December 3, 1992, City Mayor Alfredo S. Lim signed into law and ordinance entitled An Ordinance Prohibiting Short-time Admission, Short-time Admission Rates, and Wash-up Schemes in Hotels, Motels, Inns, Lodging Houses, and Similar Establishments in the City of Manila. On December 15, 1992, the Malate Tourist and Development Corporation (MTDC) filed a complaint for declaratory relief with prayer for a writ of preliminary injunction and/or temporary restraining order (TRO) with the Regional Trial Court of Manila, Branch 9 and prayed that the Ordinance be declared invalid and unconstitutional. On December 21, 1992, petitioners White Light Corporation, Titanium Corporation and Sta. Mesa Tourist Development Corporation filed a motion to intervene, which was granted by the RTC. MTDC moved to withdraw as plaintiff which was also granted by the RTC. On January 14, 1993, the RTC issued a TRO directing the City to cease and desist from enforcing the Ordinance. On October 20, 1993, the RTC rendered a decision declaring the Ordinance null and void. The City then filed a petition for review on certiorari with the Supreme Court. However, the Supreme Court referred the same to the Court of Appeals. The City asserted that the Ordinance is a valid exercise of police power pursuant to Local government code and the Revised Manila charter. The Court of Appeals reversed the decision of the RTC and affirmed the constitutionality of the Ordinance. Issue: Whether the Ordinance is constitutional. Held: No, it is not constitutional. The test of a valid ordinance is well established. A long line of decisions
11
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
including City of Manila has held that for an ordinance to be valid, it must not only be within the corporate powers of the local government unit to enact and pass according to the procedure prescribed by law, it must also conform to the following substantive requirements: (1) must not contravene the Constitution or any statute; (2) must not be unfair or oppressive; (3) must not be partial or discriminatory; (4) must not prohibit but may regulate trade; (5) must be general and consistent with public policy; and (6) must not be unreasonable. The Ordinance prohibits two specific and distinct business practices, namely wash rate admissions and renting out a room more than twice a day. The ban is evidently sought to be rooted in the police power as conferred on local government units by the Local Government Code through such implements as the general welfare clause. The apparent goal of the Ordinance is to minimize if not eliminate the use of the covered establishments for illicit sex, prostitution, drug use and the like. These goals, by themselves, are unimpeachable and certainly fall within the ambit of the police power of the State. Yet the desirability of these ends does not sanctify any and all means for their achievement. However well-intentioned the Ordinance may be, it is in effect an arbitrary and whimsical intrusion into the rights of the establishments as well as their patrons. The Ordinance needlessly restrains the operation of the businesses of the petitioners as well as restricts the rights of their patrons without sufficient justification.
Also in the case of Southern vs. Anti-Terrorism, 632 SCRA 146 (2010), there was a mentioned of void for vagueness doctrine. We have come across this doctrine in People vs. Siton, 600 SCRA 476 (2009) and the previous case to that that under the void for vagueness doctrine there is an issue in substantive due process the law which is vague. Under this doctrine, it is stated that a law which is vague is void because it generally, one, it would fail to give the subjected persons or activity fair notice of the law and secondly, it would give the state authorities a right or discretion in the implementation. A statute is void therefore considered vague if the provisions of the law are by characteristic that men of common intelligence would necessarily differ as to its meaning or a guess as to its meaning can differ as to its application. The voidness however of the law is not to be based on the use of imprecise language or that the law is ambiguous. It is vague if it cannot be interpreted, that with the application of the rules of statutory construction the statute cannot be interpreted and given meaning. It is only then the statute is considered vague and therefore considered void.
12
The void for vagueness doctrine has resulted into three other discussions. They are: 1. Facial Challenge 2. Overbreadth doctrine 3. As applied challenge Facial Challenge is a challenge of law that it is not constitutional. There is a word by word, phrase by phrase, provision by provision examination on whether or not the law is valid or whether the law is unconstitutional. Facial challenges are generally allowed only in cases involving free speech and related activities. It is also extended to religious freedom and other fundamental rights such as life, liberty, conscience, petition, assembly, pursuit of happiness and privacy. It is not however applicable to penal laws in general. The reason for disallowing facial challenges on penal laws in general is because it will prevent the state from prosecuting any person simply because the person can question the constitutionality of penal statute which ruling may also affect part persons who are not parties to the case. That is the difference with respect to “as applied challenge”. When the criminal statute is questioned as unconstitutional and it does not involve speech and any of those fundamental rights, “as applied challenge” maybe allowed, the reason for that as to that specific accused or defendant, the law maybe unconstitutional. I may have mentioned here before about the decision of RTC 11 Judge Europa about unconstitutionality of that provision on vagrancy law. That is an example of “as applied challenge” as against that individual the law has to be considered by that court as unconstitutional. Of course it does not apply to all the rest who are not parties to the case. That is allowed because each person charged before the court in violation of criminal statute may have different circumstance than the rest. If the circumstance is so and that tested against the law in question, that law maybe considered as unconstitutional to him if applied. So that maybe allowed even in ordinary criminal case provided it is made “as applied challenge”. Again, facial invalidation is generally not allowed in criminal cases except those involving speech or those involving fundamental rights. This allowance is considered by court as permissible because these are our fundamental rights. If this regulation of one’s right to speech is declared unconstitutional, the effect would not only be to the person challenging the constitutionality of the law but also to those who may in the future commit the same act or exercise the same right and also with respect to other fundamental rights.
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
Overbreadth doctrine on the other hand has nothing to do with what is void, what is vague or what is should be under facial challenge. This doctrine applies to statue which are clear, there is no vagueness, there’s no ambiguity as to who are covered, what acts are covered, what are the penalties, but they cover certain fundamentally protected rights. So the State in promulgating a law has covered an act have been covered to begin with that’s why there’s an overbreadth in the application of the power of the state in relation to the law having been promulgated. That can be questioned by anybody and usually this would involve fundamental rights because even if you are not a party to the case because it affects you just the same if that law is not declared unconstitutional – a law maybe declared unconstitutional under the overbreadth doctrine. There is an over breadth in the application or in the exercise of the power of the state by defining an act, providing penalties therefor because it have been defined as regulated and it should not have been regulated to begin with. That is the overbreadth doctrine. PEOPLE VS. SITON 600 SCRA 476 (2009) FACTS: Respondents Evangeline Siton and Krystel Kate Sagarano were charged with vagrancy pursuant to Article 202 (2) of the Revised Penal Code. Instead of submitting their counter-affidavits as directed, respondents filed [3] separate Motions to Quash on the ground that Article 202 (2) is unconstitutional for being vague and overbroad. In an Order dated April 28, 2004, the municipal trial court denied the motions. Respondents thus filed an original petition for certiorari and prohibition with the Regional Trial Court of Davao City, directly challenging the constitutionality of the anti-vagrancy law, claiming that the definition of the crime of vagrancy under Article 202 (2), vague, results as well in an arbitrary identification of violators, since the definition of the crime includes in its coverage persons who are otherwise performing ordinary peaceful acts. The State, through the Office of the Solicitor General, argued that pursuant to the Court’s ruling in Estrada v. Sandiganbayan, the overbreadth and vagueness doctrines apply only to free speech cases and not to penal statutes. It also asserted that Article 202 (2) must be presumed valid and constitutional, since the respondents failed to overcome this presumption. The Regional Trial Court issued the assailed Order granting the petition. In declaring Article 202 (2) unconstitutional, the trial court opined that the law is vague. It held that the “void for vagueness” doctrine is equally applicable in testing the validity of penal statutes. ISSUE: WHETHER THE REGIONAL TRIAL COURT
13
COMMITTED A REVERSIBLE ERROR IN DECLARING UNCONSTITUTIONAL ARTICLE 202 (2) OF THE REVISED PENAL CODE HELD: The Court finds for petitioner.The power to define crimes and prescribe their corresponding penalties is legislative in nature and inherent in the sovereign power of the state to maintain social order as an aspect of police power. The legislature may even forbid and penalize acts formerly considered innocent and lawful provided that no constitutional rights have been abridged. However, in exercising its power to declare what acts constitute a crime, the legislature must inform the citizen with reasonable precision what acts it intends to prohibit so that he may have a certain understandable rule of conduct and know what acts it is his duty to avoid. This requirement has come to be known as the void-for-vagueness doctrine which states that “a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.” The Regional Trial Court, in asserting the unconstitutionality of Article 202 (2), take support mainly from the U.S. Supreme Court’s opinion in the Papachristou v. City of Jacksonville case. The underlying principles in Papachristou are that: 1) the assailed Jacksonville ordinance “fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute;” and 2) it encourages or promotes opportunities for the application of discriminatory law enforcement. The said underlying principle in Papachristou that the Jacksonville ordinance, or Article 202 (2) in this case, fails to give fair notice of what constitutes forbidden conduct, finds no application here because under our legal system, ignorance of the law excuses no one from compliance therewith. Thus, the U.S. Supreme Court in Jacksonville declared the ordinance unconstitutional, because such activities or habits as nightwalking, wandering or strolling around without any lawful purpose or object, habitual loafing, habitual spending of time at places where alcoholic beverages are sold or served, and living upon the earnings of wives or minor children, which are otherwise common and normal, were declared illegal. But these are specific acts or activities not found in Article 202 (2) . The closest to Article 202 (2) – “any person found loitering about public or semi-public buildings or places, or tramping or wandering about the country or the streets without visible means of support ” – from the Jacksonville ordinance, would be “ persons wandering or strolling around from place to place without any lawful purpose or object .” But these two acts are still not the same: Article 202 (2) is qualified by “without visible means of support” while the Jacksonville ordinance prohibits wandering or strolling “without any lawful purpose or object,” which was held by the U.S. Supreme Court to
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
constitute a “trap for innocent acts.” Finally, we agree with the position of the State that first and foremost, Article 202 (2) should be presumed valid and constitutional. When confronted with a constitutional question, it is elementary that every court must approach it with grave care and considerable caution bearing in mind that every statute is presumed valid and every reasonable doubt should be resolved in favor of its constitutionality. The policy of our courts is to avoid ruling on constitutional questions and to presume that the acts of the political departments are valid in the absence of a clear and unmistakable showing to the contrary. To doubt is to sustain, this presumption is based on the doctrine of separation of powers which enjoins upon each department a becoming respect for the acts of the other departments. The theory is that as the joint act of Congress and the President of the Philippines, a law has been carefully studied, crafted and determined to be in accordance with the fundamental law before it was finally enacted. Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council FACTS: This case consists of 6 petitions challenging the constitutionality of RA 9372, “An Act to Secure the State and Protect our People from Terrorism,” aka Human Security Act of 2007. Petitioner-organizations assert locus standi on the basis of being suspected “communist fronts” by the government, whereas individual petitioners invoke the” transcendental importance” doctrine and their status as citizens and taxpayers. KARAPATAN, Hustisya, Desaparecidos, SELDA, EMJP, and PCR allege they have been subjected to “close security surveillance by state security forces,” their members followed by “suspicious persons” and” vehicles with dark windshields,” and their offices monitored by “men with military build.” They likewise claim they have been branded as “enemies of the State.” BAYAN, GABRIELA, KMP, MCCCL, COURAGE, KADAMAY, SCW, LFS, Anakbayan, PAMALAKAYA, ACT, Migrante, HEAD, and Agham would like the Court to take judicial notice of respondents’ alleged action of tagging them as militant organizations fronting for the CPP and NPA. They claim such Tagging is tantamount to the effects of proscription without following the procedure under the law.
in to an unlawful demand” are nebulous leaving law enforcement agencies with no standard to measure the prohibited act. ISSUE: WON RA 9372 is vague and broad in defining the crime of terrorism. Held: NO. 1. The doctrines of void-for-vagueness and overbreadth find no application in the present case since these doctrines apply only to free speech cases and that RA 9372 regulates conduct, not speech. a. Romualdez v. Sandiganbayan: The overbreadth and the vagueness doctrines have special application only to free speech cases, and are not appropriate for testing the validity of penal statutes. b. Romualdez v. COMELEC: A facial invalidation of criminal statutes is not appropriate, but the Court nonetheless proceeded to conduct a vagueness analysis, and concluded that the therein subject election offense under the Voter’s Registration Act of 1996, with which the therein petitioners were charged is couched in precise language. c. The aforementioned cases rely heavily on Justice Mendoza’s Separate Opinion in the Estrada case: Allegations that a penal statute is vague and overbroad do not justify a facial review of its validity. A facial challenge is allowed to be made to a vague statute and to one, which is overbroad because of possible chilling effect upon protected speech. This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect. If facial challenge is allowed, the State may well be prevented from enacting laws against socially harmful conduct. Overbreadth and vagueness doctrines then have special application only to free speech cases. They are inapt for testing the validity of penal statutes. 2. Since a penal statute may only be assailed for being vague as applied to petitioners, a limited vagueness analysis of the definition of “terrorism” in RA 9372 is legally impossible absent an actual or imminent charge against them. a. The doctrine of vagueness and the doctrine of overbreadth do not operate on the same plane. i. A statute or acts suffers from the defect of vagueness when: It lacks comprehensible standards that men of common intelligence must necessarily guess at its meaning and differ as to its application.
•
Meanwhile, IBP and CODAL base their claim of locus standi on their sworn duty to uphold the Constitution. Petitioners claim that RA 9372 is vague and broad, in that terms like “widespread and extraordinary fear and panic among the populace” and “coerce the government to give
14
It is repugnant to the Constitution in 2 ways: a. Violates due process for failure to accord fair notice of conduct to avoid
•
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
conduct nor the essence of the whole act as conduct and not speech.
b. Leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle.
EQUAL PROTECTION
ii. The over breadth doctrine decrees that a governmental purpose to control or prevent activities constitutionally subject to state regulations may not be achieved by means, which sweep unnecessarily broadly and thereby invade the area of protected freedoms.
Now, let’s go to equal protection.
b. A “facial” challenge is likewise different from an “as applied” challenge. i. “As applied” challenge considers only extant facts affecting real litigants. ii “Facial” challenge is an examination of the entire law, pinpointing its flaws and defects, not only on the basis of its actual operation to the parties, but also on the assumption or prediction that its very existence may cause others not before the court to refrain from constitutionally protected speech oractivities. Under no case may ordinary penal statutes be subjected to a facial challenge. If facial challenge to a penal statute is permitted, the prosecution of crimes may be hampered. No prosecution would be possible. 3. There is no merit in the claim that RA 9372 regulates speech so as to permit a facial analysis of its validity. a. Section 3 of RA 9372 provides the following elements of the crime of terrorism: i. ii.
iii.
Offender commits an act punishable under RPC and the enumerated special penal laws; Commission of the predicate crime sows and creates a condition of widespread and extraordinary fear and panic among the populace; The offender is actuated by the desire to coerce the government to give in to an unlawful demand.
b. Petitioners contend that the element of “unlawful demand” in the definition of terrorism must necessarily be transmitted through some form of expression protected by the free speech clause. The argument does not persuade. What RA 9372 seeks to penalize is conduct, not speech. c. Petitioners’ notion on the transmission of message is entirely inaccurate, as it unduly focuses on just one particle of an element of the crime. Almost every commission of a crime entails some mincing of words on the part of offender. Utterances not elemental but inevitably incidental to the doing of the criminal conduct alter neither the intent of the law to punish socially harmful
15
There’s a case between Surigao Electric vs. ERC . This is a case involving imposition of rates by public utilities. The question, can they be regulated under the police power? It is a no brainer, it should be regulated. The only discussion here perhaps is the nature of the rate fixing authority of our regulatory bodies. In rate fixing, there are two considerations: One, the quasi-judicial function of the regulatory office or the quasi-legislative function of the regulating office in fixing the rate. If the rates are fixed under the body’s quasi-judicial function, then the requirements of due process or notice and hearing must have to be satisfied. Because it will only apply to a particular party or particular operator in that case. But if the rate is fixed under the exercise of its quasilegislative power then notice and hearing need not be complied as a requirement of due process because regulatory departments or offices involved in public utilities are always given the power to fix the rates based on public hearings and consultations and that should satisfy the requirement of due process because anyway it is not only applicable to one specific operator or public utility operator but it will affect the rest or all of those in the particular industry. There is no specific operator targeted because all of the operators are targeted and the power of these regulatory offices to fix rates are not limited to the exercise of quasi-judicial power.
G.R. No. 183626 October 4, 2010 SURIGAO DEL NORTE ELECTRIC COOPERATIVE, INC. (SURNECO) vs. ENERGY REGULATORY COMMISSION Petitioner Surigao Del Norte Electric Cooperative, Inc. (SURNECO) is a rural electric cooperative organized and existing by virtue of Presidential Decree No. 269. On February 8, 1996, the Association of Mindanao Rural Electric Cooperatives, as representative of SURNECO and of the other 33 rural electric cooperatives in Mindanao, filed a petition before the then Energy Regulatory Board (ERB) for the approval of the formula for automatic cost adjustment and adoption of the National Power Corporation (NPC) restructured rate adjustment to comply with Republic Act (R.A.) No. 7832. Held: It is beyond cavil that the State, in the exercise of police power, can regulate the rates imposed by a public utility such as
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
SURNECO. As we held in Republic of the Philippines v. Manila Electric Company— The regulation of rates to be charged by public utilities is founded upon the police powers of the State and statutes prescribing rules for the control and regulation of public utilities are a valid exercise thereof. When private property is used for a public purpose and is affected with public interest, it ceases to be juris privati only and becomes subject to regulation. The regulation is to promote the common good. Submission to regulation may be withdrawn by the owner by discontinuing use; but as long as use of the property is continued, the same is subject to public regulation. Likewise, SURNECO cannot validly assert that the caps set by R.A. No. 7832 are arbitrary, or that they violate the non-impairment clause of the Constitution for allegedly traversing the loan agreement between NEA and ADB. Striking down a legislative enactment, or any of its provisions, can be done only by way of a direct action, not through a collateral attack, and more so, not for the first time on appeal in order to avoid compliance. The challenge to the law’s constitutionality should also be raised at the earliest opportunity. Even assuming, merely for argument’s sake, that the ERC issuances violated the NEA and ADB covenant, the contract had to yield to the greater authority of the State’s exercise of police power. It has long been settled that police power legislation, adopted by the State to promote the health, morals, peace, education, good order, safety, and general welfare of the people prevail not only over future contracts but even over those already in existence, for all private contracts must yield to the superior and legitimate measures taken by the State to promote public welfare.
This case of White Light vs. City of Manila ... This is an old case involving an old problem in the City of Manila. As you have read, this involves the power of the local government unit to enact an ordinance to limit or regulate the business involving operations of hotels and motels to curb the increasing problem of prostitution.
G.R. No. 122846 January 20, 2009 WHITE LIGHT CORPORATION, TITANIUM CORPORATION and STA. MESA TOURIST & DEVELOPMENT CORPORATION vs.CITY OF MANILA, represented by DE CASTRO, MAYOR ALFREDO S. LIM On December 3, 1992, Mayor Lim signed into law the Ordinance prohibiting short time admission in hotels, motels, lodging houses, pension houses and similar establishments in the City of Manila. On December 15, 1992, the Malate Tourist and Development Corporation (MTDC) filed a complaint for declaratory relief with prayer for a writ of preliminary injunction and/or temporary restraining order (TRO). MTDC prayed that the Ordinance, insofar as it includes motels and inns as among its prohibited establishments, be declared invalid and unconstitutional. MTDC
16
claimed that as owner and operator of the Victoria Court in Malate, Manila it was authorized by P.D. No. 259 to admit customers on a short time basis as well as to charge customers wash up rates for stays of only three hours. On December 21, 1992, petitioners White Light Corporation (WLC), Titanium Corporation (TC) and Sta. Mesa Tourist and Development Corporation (STDC) filed a motion to intervene and to admit attached complaint-in-intervention on the ground that the Ordinance directly affects their business interests as operators of drive-in-hotels and motels in Manila. The Court of Appeals reversed the decision of the RTC and affirmed the constitutionality of the Ordinance. Held: That the Ordinance prevents the lawful uses of a wash rate depriving patrons of a product and the petitioners of lucrative business ties in with another constitutional requisite for the legitimacy of the Ordinance as a police power measure. It must appear that the interests of the public generally, as distinguished from those of a particular class, require an interference with private rights and the means must be reasonably necessary for the accomplishment of the purpose and not unduly oppressive of private rights. It must also be evident that no other alternative for the accomplishment of the purpose less intrusive of private rights can work. More importantly, a reasonable relation must exist between the purposes of the measure and the means employed for its accomplishment, for even under the guise of protecting the public interest, personal rights and those pertaining to private property will not be permitted to be arbitrarily invaded. Lacking a concurrence of these requisites, the police measure shall be struck down as an arbitrary intrusion into private rights. As held in Morfe v. Mutuc, the exercise of police power is subject to judicial review when life, liberty or property is affected. However, this is not in any way meant to take it away from the vastness of State police power whose exercise enjoys the presumption of validity. The Ordinance makes no distinction between places frequented by patrons engaged in illicit activities and patrons engaged in legitimate actions. Thus it prevents legitimate use of places where illicit activities are rare or even unheard of. A plain reading of section 3 of the Ordinance (“SECTION 3. Pursuant to the above policy, short-time admission and rate, wash-up rate or other similarly concocted terms, are hereby prohibited in hotels, motels, inns, lodging houses, pension houses and similar establishments in the City of Manila.) shows it makes no classification of places of lodging, thus deems them all susceptible to illicit patronage and subject them without exception to the unjustified prohibition. The behavior which the Ordinance seeks to curtail is in fact already prohibited and could in fact be diminished simply by applying existing laws. Less intrusive measures such as curbing the proliferation of prostitutes and drug dealers through active police work would be more effective in easing the situation. So would the strict enforcement of existing laws and regulations penalizing prostitution and drug use. These measures would have minimal intrusion on the businesses of the petitioners and other legitimate merchants. Further, it is apparent that the Ordinance can easily be circumvented by merely paying the whole day rate without any
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
hindrance to those engaged in illicit activities. Moreover, drug dealers and prostitutes can in fact collect "wash rates" from their clientele by charging their customers a portion of the rent for motel rooms and even apartments. The Decision of the RTC is REINSTATED. Ordinance No. 7774 is hereby declared UNCONSTITUTIONAL.
This is an old issue because in the old case of Ermita-Malate Hotel and Motel Operations Association, Inc., v. Hon. City Mayor of Manila, (the City ordinance requiring patrons to fill up a prescribed form stating personal information such as name, gender, nationality, age, address and occupation before they could be admitted to a motel, hotel or lodging house. This earlier ordinance was precisely enacted to minimize certain practices deemed harmful to public morals. A purpose similar to the annulled ordinance in City of Manila which sought a blanket ban on motels, inns and similar establishments in the Ermita-Malate area. However, the constitutionality of the ordinance in ErmitaMalate was sustained by the Court.) The SC has upheld as discussed the matter of the regulation requiring several providing for an ordinance requiring several acts to be done before a person may be permitted inside the motel in Metro Manila. One of which was the requirement of lighting in the lobby. There is a requirement of filling-up of registration documents. There is a limitation for not allowing the room to be let out for more than once in a period of 24 hours. There is a limitation in allowing minors to be admitted as guests without the company of their parents or legal guardians and there are corresponding penalties for violations. In that old case, the SC has ruled that this regulation is permissible. And in this new case White Light, the same issue was raised. There is also a provision in the ordinance providing for the same regulations on the exercise of this business. And the SC had the occasion to discuss what I have mentioned earlier, that aside from the general test of lawfulness or standards of lawfulness of the means, the local ordinance exercised in its regulatory function must have to comply with those three (3) basic requirements or conditions and the six (6) substantive requirements. “The test of a valid ordinance is well established. A long line of decisions including City of Manila has held that for an ordinance to be valid, it must not only be within the corporate powers of the local government unit to enact and pass according to the procedure prescribed by law, it must also conform to the following substantive requirements: (1) must not contravene the Constitution or any statute; (2) must not be unfair or oppressive; (3) must not be partial or discriminatory; (4) must not
17
prohibit but may regulate trade; (5) must be general and consistent with public policy; and (6) must not be unreasonable. I think that what is most important there is that the ordinance must not prohibit but must only regulate the business. A business which is otherwise legal can be regulated and cannot be totally prohibited or declared to be illegal per se or per accidens like operation of motels or hotels. There is nothing illegal about it. It can be regulated for the protection of the public interest matter like public health because of the responsible parenthood thing. Ok. What other cases? This case of Office of the Solicitor General vs. Ayala (G.R. No. 177056, September 2009). This involves private parking in malls which collect fees. Now, in this case, there was a proposal where private malls cannot collect parking fees, so can that be allowed? SC said that the law is not valid and it is not in the valid exercise of police power because mall owners have obviously spent money for the construction of these parking areas and they have the right to exact reasonable parking fees. If there is a law prohibiting from collecting parking fees, it will result into taking in the concept of eminent domain and they must have to be paid with just compensation if the ordinance prohibits them from exacting parking fees because they are prevented them from the beneficial use of the property which has been converted into a parking lot. G.R. No. 177056 September 18, 2009 THE OFFICE OF THE SOLICITOR GENERAL vs. AYALA LAND INCORPORATED, ROBINSON'S L AND CORPORATION, SHANGRI-LA PLAZA CORPORATION and SM PRIME HOLDINGS, INC. The shopping malls operated or leased out by respondents have parking facilities for all kinds of motor vehicles, either by way of parking spaces inside the mall buildings or in separate buildings and/or adjacent lots that are solely devoted for use as parking spaces. Respondents received information that, pursuant to Senate Committee Report No. 225, the DPWH Secretary and the local building officials of Manila, Quezon City, and Las Piñas intended to institute, through the OSG, an action to enjoin respondents from collecting parking fees, and to impose upon said establishments penal sanctions under PD No. 1096 (National Building Code) and its IRR. With the threatened action against it, respondent SM Prime filed, on 3 October 2000, a Petition for Declaratory 8 Relief under Rule 63. Held: The Building Code, which is the enabling law and the Implementing Rules and Regulations do not impose that parking spaces shall be provided by the mall owners free of charge. Absent such directive, respondents are under no obligation to provide them for free. In conclusion, the total prohibition against
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
the collection by respondents of parking fees from persons who use the mall parking facilities has no basis in the National Building Code or its IRR. The State also cannot impose the same prohibition by generally invoking police power, since said prohibition amounts to a taking of respondents’ property without payment of just compensation.
Ok. Equal protection. We have said that the inclusion of the equal protection clause under the same Section 1 of the due process clause is by design and not by accident. General violations of due process or arbitrariness are usually questioned under the due process clause but specific instances of violations or acts of arbitrariness are usually raised under equal protection issues because it affects a particular class or individual. Now, the equal protection clause in the Constitution simply requires that all persons or things similarly situated should be treated alike both as to the rights conferred and responsibilities imposed. The equal protection just like due process has two components: (1) the substantive parts and (2) the procedural parts. Procedural is simply that the law must have to be applied equally to those in the same class. Equal protection does not require absolute equality, it only requires substantive equality among equals and the equality is measured or determined on the basis of valid classification which is based on similarities and some particular which is not shared by the rest with respect to the same particulars. There is, again, no absolute similarity in all but at least to these specifics they are similar and they are not shared with the rest who do not belong to said class. Now for there to be a valid classification the law has always required that the classification must rest on (1) substantial distinction. (2) It must be germane to the purpose of the law. The classification must (3) not be limited to existing conditions only and that (4) it must be equally applicable to those belonging to the same class. When it is said that the law must be based on substantial distinction, the distinction must be of considerable value or importance. As to what or how considerable the classification or distinction is actually based on the second condition that it must be germane to the purpose of the law, meaning, there is reasonable connection with the means to accomplish the purpose of the law. For example, when you say classification based on gender, it may be substantial if the purpose of the law is to grant maternity or paternity benefits but gender if used for purposes of granting minimum wages then it is not substantial because it is not germane to the purpose of the law. The purpose being is to give a fair day’s wage to a fair day’s labor. A fair day’s
18
labor is not dependent on whether one is a man or woman. So far as long as one gives a fair day’s labor, he must be paid a fair day’s wage. So gender, in that case, cannot be considered substantial. Age like minority or majority may be substantial if you look into protecting public morality or morality of children, also health. But if for the purpose of education, you could not say that children should have more access to education than those who are adults because each one should have an equal access to education whether it should be free or at least given a substantial subsidy. Again, the substantiality of the distinction must have to be based on whether the distinction is germane to the purpose of the law. Aliens or citizens, if you are talking about the exercise of profession, it cannot be argued that constitutionally exercise of profession is reserved for Filipino citizens only except in cases provided by law. But if you say enjoyment of the rights under the Bill of Rights, citizenship is not a valid classification because every citizen except every person, except the right to information, should be allowed to enjoy protection under the Constitution. As mentioned earlier, the classification must not be limited to existing conditions only. This should also mean that for so long as the problem sought to be addressed by the legislation then the ordinance or the law must have to be existing as well. While we all know that there are laws which would take effect only after a fixed period of time, that is not unconstitutional because these are laws which are necessary to protect only the particular issue which is to be addressed for a limited period of time. But if it is a purely regulatory measure, for example, it cannot be made to apply only for the present because if there is only one individual, entity or activity covered by the legislation for now, it maybe considered as unconstitutional because it becomes a specific target of the legislation and not applicable to those who may come under the classification. The classification, to be reasonable, should be in terms applicable to future conditions as well. Now, the classification must also be equally applicable to all in the same class, this requires substantial symmetry not literal equality in the application for it has always been an example that is given in the income tax payment in your law on taxation. There are income tax brackets where individuals may have different income taxes but because they belong to the same category or class, they have the same burden so while they do not pay the same amount, the burden imposed to them under the laws of taxation are the same because they belong to the same class. Now, standards of judicial review as mentioned before… the rational of the intermediate and strict scrutiny test have first been used in equal protection cases. They have just been used also in cases involving substantive due process. Now, they are of the same discussions whether in equal protection or in substantive
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
due process. The strictest test here would be the strict scrutiny test and this is used on issues on a equal protection or discrimination is based on the fundamental rights. So I think if the local ordinance in Davao on anti-discrimination eventually pass and if there should be a question, it should be tested under the strict scrutiny test. Whether or not it is a valid regulation on an issue on discrimination based on race, gender, power, religion and other factors mentioned therein. There are constitutionallyimposed equalities in the Constitution: provisions on economic equality, on political equality and on social equality. There is a provision there where political wealth or economic wealth should be diffused or property ownership, I have read somewhere, I do not know who wrote this which says “you cannot legislate the poor into prosperity by legislating the wealthy out of property” which is actually true, you take property from the wealthy does not mean that the poor can prosper. I don’t know. You cannot multiply wealth by dividing it or that the government cannot give to anybody anything that the government does not take first from somebody else. The government will not actually give something it owns to the poor to prosper. It takes it somewhere else normally from the rich to give to the poor. So, we, the poor will be happy. I remember those because I had a discussion one time with another professor and he said these are fundamental mistakes in the Constitution. Fundamental because it is the fundamental law of the land. How could you diffuse property or legislate the poor into prosperity by taking the wealth of the rich? Because if you take it from the rich, normally, government will still have to pay just compensation. So where will the government take what it will have to pay for just compensation? Take them from the rich, but as Obama would have it, “tax the rich to give to the poor”. Probably I took this from Obama’s political opponents. Ok, let’s continue tomorrow.
GIVERO, KATRINA “KONGKONG” LEYES, HANNA ������� ��������� ���� ����� ���������� ���� ��������� ― ������ �����
19
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
executive departments, and extend to all actions of a state denying equal protection of the laws, through whatever agency or whatever guise is taken.
2 August 2012 EQUAL PROTECTION
Before we leave the item on Equal Protection, there’s 1 case involving EO 1 of PNoy creating the Philippine Truth Commission. In this case of Biraogo vs. Philippine Truth Commission, the SC nullified the creation of the Commission on the ground of violation of equal protection. The dismissal was based on the reasoning that the non-inclusion of past administrations similarly situated (since the only object of the investigation was the Arroyo administration) constitutes arbitrariness. The Arroyo administration, according to the SC, is not a class by itself and if the object of the commission is to inquire into the excesses of the previous administration, then everybody (i.e. those before Arroyo) must have to be included. The non-inclusion therefore of the other past administrations constitutes class legislation. LOUIS "BAROK" C. BIRAOGO vs. THE PHILIPPINE TRUTH COMMISSION OF 2010 G.R. No. 192935 December 7, 2010 Concept of the Equal Protection Clause One of the basic principles on which this government was founded is that of the equality of right which is embodied in Section 1, Article III of the 1987 Constitution. The equal protection of the laws is embraced in the concept of due process, as every unfair discrimination offends the requirements of justice and fair play. It has been embodied in a separate clause, however, to provide for a more specific guaranty against any form of undue favoritism or hostility from the government. Arbitrariness in general may be challenged on the basis of the due process clause. But if the particular act assailed partakes of an unwarranted partiality or prejudice, the sharper weapon to cut it down is the equal protection clause. "According to a long line of decisions, equal protection simply requires that all persons or things similarly situated should be treated alike, both as to rights conferred and responsibilities imposed." It "requires public bodies and institutions to treat similarly situated individuals in a similar manner." "The purpose of the equal protection clause is to secure every person within a state’s jurisdiction against intentional and arbitrary discrimination, whether occasioned by the express terms of a statue or by its improper execution through the state’s duly constituted authorities." "In other words, the concept of equal justice under the law requires the state to govern impartially, and it may not draw distinctions between individuals solely on differences that are irrelevant to a legitimate governmental objective." The equal protection clause is aimed at all official state actions, not just those of the legislature. Its inhibitions cover all the departments of the government including the political and
20
It, however, does not require the universal application of the laws to all persons or things without distinction. What it simply requires is equality among equals as determined according to a valid classification. Indeed, the equal protection clause permits classification. Such classification, however, to be valid must pass the test of reasonableness. The test has four requisites: ( 1) The classification rests on substantial distinctions; (2) It is germane to the purpose of the law; (3) It is not limited to existing conditions only ; and (4) It applies equally to all members of the same class . "Superficial differences do not make for a valid classification." For a classification to meet the requirements of constitutionality, it must include or embrace all persons who naturally belong to the class. "The classification will be regarded as invalid if all the members of the class are not similarly treated, both as to rights conferred and obligations imposed. It is not necessary that the classification be made with absolute symmetry, in the sense that the members of the class should possess the same characteristics in equal degree. Substantial similarity will suffice; and as long as this is achieved, all those covered by the classification are to be treated equally. The mere fact that an individual belonging to a class differs from the other members, as long as that class is substantially distinguishable from all others, does not justify the non-application of the law to him." The classification must not be based on existing circumstances only, or so constituted as to preclude addition to the number included in the class. It must be of such a nature as to embrace all those who may thereafter be in similar circumstances and conditions. It must not leave out or "underinclude" those that should otherwise fall into a certain classification. As elucidated in Victoriano vs. Elizalde Rope Workers' Union and reiterated in a long line of cases, The guaranty of equal protection of the laws is not a guaranty of equality in the application of the laws upon all citizens of the state. It is not, therefore, a requirement, in order to avoid the constitutional prohibition against inequality, that every man, woman and child should be affected alike by a statute. Equality of operation of statutes does not mean indiscriminate operation on persons merely as such, but on persons according to the circumstances surrounding them. It guarantees equality, not identity of rights. The Constitution does not require that things which are different in fact be treated in law as though they were the same. The equal protection clause does not forbid discrimination as to things that are different. It does not prohibit legislation which is limited either in the object to which it is directed or by the territory within which it is to operate. The equal protection of the laws clause of the Constitution allows classification. Classification in law, as in the other departments of knowledge or practice, is the grouping of things in speculation or practice because they agree with one another in certain particulars. A law is not invalid because of simple inequality. The very idea of classification is that of inequality, so that it goes without saying that the mere fact of inequality in no manner determines the matter of constitutionality. All that is required of a
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
valid classification is that it be reasonable, which means that the classification should be based on substantial distinctions which make for real differences, that it must be germane to the purpose of the law; that it must not be limited to existing conditions only; and that it must apply equally to each member of the class. This Court has held that the standard is satisfied if the classification or distinction is based on a reasonable foundation or rational basis and is not palpably arbitrary. [Citations omitted] Applying these precepts to this case, Executive Order No. 1 should be struck down as violative of the equal protection clause. The clear mandate of the envisioned truth commission is to investigate and find out the truth "concerning the reported cases of graft and corruption during the previous administration" only. The intent to single out the previous administration is plain, patent and manifest. Mention of it has been made in at least three portions of the questioned executive order. Specifically, these are: WHEREAS , there is a need for a separate body dedicated solely to investigating and finding out the truth concerning the reported cases of graft and corruption during the previous administration, and which will recommend the prosecution of the offenders and secure justice for all; SECTION 1. Creation of a Commission. – There is hereby created the PHILIPPINE TRUTH COMMISSION , hereinafter referred to as the "COMMISSION," which shall primarily seek and find the truth on, and toward this end, investigate reports of graft and corruption of such scale and magnitude that shock and offend the moral and ethical sensibilities of the people, committed by public officers and employees, their co-principals, accomplices and accessories from the private sector, if any, during the previous administration; and thereafter recommend the appropriate action or measure to be taken thereon to ensure that the full measure of justice shall be served without fear or favor. SECTION 2. Powers and Functions. – The Commission, which shall have all the powers of an investigative body under Section 37, Chapter 9, Book I of the Administrative Code of 1987, is primarily tasked to conduct a thorough fact-finding investigation of reported cases of graft and corruption referred to in Section 1, involving third level public officers and higher, their co-principals, accomplices and accessories from the private sector, if any, during the previous administration and thereafter submit its finding and recommendations to the President, Congress and the Ombudsman. [Emphases supplied] In this regard, it must be borne in mind that the Arroyo administration is but just a member of a class, that is, a class of past administrations. It is not a class of its own. Not to include past administrations similarly situated constitutes arbitrariness which the equal protection clause cannot sanction. Such discriminating differentiation clearly reverberates to label the commission as a vehicle for vindictiveness and selective retribution. Though the OSG enumerates several differences between the Arroyo administration and other past administrations, these distinctions are not substantial enough to merit the restriction of the investigation to the "previous administration" only. The reports of widespread corruption in the Arroyo administration cannot be taken
21
as basis for distinguishing said administration from earlier administrations which were also blemished by similar widespread reports of impropriety. They are not inherent in, and do not inure solely to, the Arroyo administration. As Justice Isagani Cruz put it, "Superficial differences do not make for a valid classification." The public needs to be enlightened why Executive Order No. 1 chooses to limit the scope of the intended investigation to the previous administration only. The OSG ventures to opine that "to include other past administrations, at this point, may unnecessarily overburden the commission and lead it to lose its effectiveness." The reason given is specious. It is without doubt irrelevant to the legitimate and noble objective of the PTC to stamp out or "end corruption and the evil it breeds." The probability that there would be difficulty in unearthing evidence or that the earlier reports involving the earlier administrations were already inquired into is beside the point. Obviously, deceased presidents and cases which have already prescribed can no longer be the subjects of inquiry by the PTC. Neither is the PTC expected to conduct simultaneous i nvestigations of previous administrations, given the body’s limited time and resources. "The law does not require the impossible" (Lex non cogit ad impossibilia). Given the foregoing physical and legal impossibility, the Court logically recognizes the unfeasibility of investigating almost a century’s worth of graft cases. However, the fact remains that Executive Order No. 1 suffers from arbitrary classification. The PTC, to be true to its mandate of searching for the truth, must not exclude the other past administrations. The PTC must, at least, have the authority to investigate all past administrations. While reasonable prioritization is permitted, it should not be arbitrary lest it be struck down for being unconstitutional. In the often quoted language of Yick Wo vs. Hopkins, Though the law itself be fair on its face and impartial in appearance, yet, if applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the constitution. [Emphasis supplied] It could be argued that considering that the PTC is an ad hoc body, its scope is limited. The Court, however, is of the considered view that although its focus is restricted, the constitutional guarantee of equal protection under the laws should not in any way be circumvented. The Constitution is the fundamental and paramount law of the nation to which all other laws must conform and in accordance with which all private rights determined and all public authority administered. Laws that do not conform to the Constitution should be stricken down for being unconstitutional. While the thrust of the PTC is specific, that is, for investigation of acts of graft and corruption, Executive Order No. 1, to survive, must be read together with the provisions of the Constitution. To exclude the earlier administrations in the guise of "substantial distinctions" would only confirm the petitioners’ lament that the subject executive order is only an "adventure in partisan hostility." In the case of US v. Cyprian, it was written: "A rather limited number of such classifications have routinely been held or assumed to be arbitrary; those include: race, national origin, gender, political activity or membership in a political party, union
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
activity or membership in a labor union, or more generally the exercise of first amendment rights." To reiterate, in order for a classification to meet the requirements of constitutionality, it must include or embrace all persons who naturally belong to the class. "Such a classification must not be based on existing circumstances only, or so constituted as to preclude additions to the number included within a class, but must be of such a nature as to embrace all those who may thereafter be in similar circumstances and conditions. Furthermore, all who are in situations and circumstances which are relative to the discriminatory legislation and which are indistinguishable from those of the members of the class must be brought under the influence of the law and treated by it in the same way as are the members of the class." The Court is not unaware that "mere underinclusiveness is not fatal to the validity of a law under the equal protection clause." "Legislation is not unconstitutional merely because it is not allembracing and does not include all the evils within its reach." It has been written that a regulation challenged under the equal protection clause is not devoid of a rational predicate simply because it happens to be incomplete. In several instances, the underinclusiveness was not considered a valid reason to strike down a law or regulation where the purpose can be attained in future legislations or regulations. These cases refer to the "step by step" process. "With regard to equal protection claims, a legislature does not run the risk of losing the entire remedial scheme simply because it fails, through inadvertence or otherwise, to cover every evil that might conceivably have been attacked." In Executive Order No. 1, however, there is no inadvertence. That the previous administration was picked out was deliberate and intentional as can be gleaned from the fact that it was underscored at least three times in the assailed executive order. It must be noted that Executive Order No. 1 does not even mention any particular act, event or report to be focused on unlike the investigative commissions created in the past. "The equal protection clause is violated by purposeful and intentional discrimination."
REQUIREMENTS OF FAIR PROCEDURE
A. Arrests, Searches and Seizures Section 2, Article III, 1987 Constitution Section 3, Article III, 1987 Constitution Now, let’s go to the requirements of fair procedure, search and seizure and arrest. The concept of the protection against unreasonable search and seizure is largely based on privacy (the right to be let and left alone). The State therefore is not allowed to conduct searches in any house, dwelling or search the documents or other effects of any person unless it is warranted. The Constitution extends the protection to unreasonable search and seizure only so that if the search and seizure is reasonable,
22
then that is not protected. The unreasonable searches and seizures would cover: 1. 2.
search without warrant where it does not fall in any of the 6 general/common exceptions or even if there is a warrant, either the warrant was illegally obtained or the warrant legally obtained is illegally presented.
So in those cases the search would become unreasonable and subject to the rule on exclusion (i.e. any items seized on the occasion of the unreasonable search would be considered as inadmissible in evidence.)
REQUIREMENTS OF SEARCH WARRANTS
The Rules of Court provide for the requirements for the issuance of search warrants: 1. an application must be under oath or affirmation; 2. there is determination of probable cause to be done personally by the judge. Probable cause has been defined as such amount of facts or circumstances which would lead a prudent judge to believe that a crime has been committed and that the fruits, effects or objects of the crime are in the place to be searched. There is also a requirement of a hearing for the determination of probable cause. The hearing is obviously summary in character but what is required under the Rules is that there must have to be an oath or affirmation during or before the examination and that the judge must have to ask searching questions on the applicant and/or witnesses. There were several cases in the past that [ruled that] leading questions would not be allowed or are insufficient for the judge to determine probable cause. The answers must have to be based on the personal knowledge of the applicant and/or witnesses. This is a rule on Evidence i.e. that a person can only be allowed to testify on facts which he has perceived through the use of his senses so that if the matters taken in the application turn out to be false, such applicant and/or witnesses can be held liable for false testimony. Now in one case, People vs. Mamaril (October 6, 2010), the SC had occasion to characterize the test for the proper determination of probable cause. The issue raised by the appellant on appeal was that there was no proper determination of probable cause based on the line of questioning of the applicant (a police officer) considering that there were only few questions asked. The SC said that there are no general criteria on the amount of probable
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
cause (or the amount of questions that the judge must ask for probable cause to be properly determined). What is important is that the judge must personally believe that there exists probable cause based on the facts and circumstances of the case. Again, there is no hard and fast rule as to how the determination of probable cause should be made because it is largely dependent on findings and the application of these facts by the judge. PEOPLE OF THE PHILIPPINES vs. OLIVE RUBIO MAMARIL G.R. No. 171980 October 6, 2010 The contention of the accused-appellant, as asserted through the Public Attorney’s Office, is that the issued search warrant was not based on probable cause. The accused-appellant relied heavily on its argument that SPO4 Gotidoc, as the applicant of the search warrant, did not testify on facts personally known to him but simply relied on stories that the accused- appellant was peddling illegal drugs. The requisites for the issuance of a search warrant are: (1) probable cause is present; (2) such probable cause must be determined personally by the judge; (3) the judge must examine, in writing and under oath or affirmation, the complainant and the witnesses he or she may produce; (4) the applicant and the witnesses testify on the facts personally known to them; and (5) the warrant specifically describes the place to be searched and the things to be seized. On the other hand, probable cause means such facts and circumstances which would lead a reasonable 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. Based on the records, the Court is convinced that the questioned search warrant was based on a probable cause. A portion of the direct testimony of SPO4 Gotidoc is hereby quoted: Q: What is your basis for applying for search warrant against the accused? A: Because there were many persons who were going to her place and we’ve been hearing news that she is selling prohibited drugs and some of them were even identified, sir. Q: But you did not conduct any surveillance before you applied for search warrant? A: Prior to the application for search warrant, we conducted surveillance already.
23
Q: Because personally you heard that the accused was dealing prohibited drugs and that was the basis for you to apply for search warrant with Branch 66? A: Yes, sir. (Emphasis supplied) x x x Section 6, Rule 126 of the Rules on Criminal Procedure provides that: If the judge is satisfied of the existence of facts upon which the application is based or that there is probable cause to believe that they exist, he shall issue the warrant, which must be substantially in the form prescribed by these Rules. (Emphasis supplied) There is no general formula or fixed rule for the determination of probable cause since the same must be decided in light of the conditions obtaining in given situations and its existence depends to a large degree upon the findings or opinion of the judge conducting the examination. It is presumed that a judicial function has been regularly performed, absent a showing to the contrary. A magistrate’s determination of a probable cause for the issuance of a search warrant is paid with great deference by a reviewing court, as long as there was substantial basis for that determination. The defense’s reliance of the quoted testimony of the police officer alone, without any other evidence to show that there was indeed lack of personal knowledge, is insufficient to overturn the finding of the trial court. The accused-appellant, having failed to present substantial rebuttal evidence to defeat the presumption of regularity of duty of the issuing judge, will not be sustained by this Court.
Also, the next requirement is that the warrant must be issued in connection with one specific offense, thus, avoiding what is known as scatter shot warrant . The theoretical basis for disallowing a warrant issued for more than one specific offense is that the judge will have difficulty in determining probable cause that a crime has been committed and such will be subjected to a search warrant with respect to the fruits, proceeds or things to be used (for purposes of determining probable cause, if the warrant should be issued for more than 1 specific offense). So only 1 offense for every warrant. In this case of Tan vs. Sy Tiong Gue, the search warrant here was issued for robbery but the information (for robbery) was dismissed thereafter. The question raised here is: can the item seized under the warrant be used as evidence in a case of qualified theft? Remember that double jeopardy had not set in yet because the information (for robbery) had been dismissed. The SC said NO considering that the dismissal of the information (for robbery) was for lack of sufficient
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
cause or prima facie case of taking. If there’s no taking, there could be no qualified theft. ROMER SY TAN vs. SY TIONG GUE G.R. No. 174570 February 22, 2010 A search warrant is an order in writing issued in the name of the People of the Philippines, signed by a judge and directed to a peace officer, commanding him to search for personal property described therein and to bring it before the court. The issuance of a search warrant is governed by Rule 126 of the Rules of Court, the relevant sections of which provide: Section 4. Requisites for issuing search warrant. — A search warrant shall not issue except upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the things to be seized which may be anywhere in the Philippines.1avvphi1 Section 5. Examination of complainant; record. — The judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath, the complainant and the witnesses he may produce on facts personally known to them and attach to the record their sworn statements together with the affidavits submitted. Section 6. Issuance and form of search warrant. — If the judge is satisfied of the existence of facts upon which the application is based or that there is probable cause to believe that they exist, he shall issue the warrant, which must be substantially in the form prescribed by these Rules. Therefore, the validity of the issuance of a search warrant rests upon the following factors: (1) it must be issued upon probable cause; (2) the probable cause must be determined by the judge himself and not by the applicant or any other person; (3) in the determination of probable cause, the judge must examine, under oath or affirmation, the complainant and such witnesses as the latter may produce; and (4) the warrant issued must particularly describe the place to be searched and persons or things to be seized. In the case at bar, the CA concluded that the RTC did not comply with any of the requisites required for the issuance of the subject search warrants. The CA ratiocinated that although the RTC judge personally determined if probable cause existed by examining the witnesses through searching questions, and although the search warrants sufficiently described the place to be searched and things to be seized, there was no probable cause warranting the issuance of the subject search warrants. We do not agree. Jurisprudence dictates that probable cause, as a condition for the issuance of a search warrant, is such reasons supported by facts
24
and circumstances as will warrant a cautious man to believe that his action and the means taken in prosecuting it are legally just and proper. Probable cause requires facts and circumstances that would lead a reasonably prudent man to believe that an offense has been committed and that the objects sought in connection with that offense are in the place to be searched. In Microsoft Corporation v. Maxicorp, Inc., this Court stressed that: The determination of probable cause does not call for the application of rules and standards of proof that a judgment of conviction requires after trial on the merits. As implied by the words themselves, "probable cause" is concerned with probability, not absolute or even moral certainty. The prosecution need not present at this stage reasonable doubt. The standards of judgment are those of a reasonably prudent man, not the exacting calibrations of a judge after a full-blown trial. Applying these set standards, this Court finds that there was no grave abuse of discretion on the part of the RTC judge in issuing the subject search warrants. A perusal of the Sinumpaang Salaysay and the Transcript of Stenographic Notes reveals that Judge Lanzanas, through searching and probing questions, was satisfied that there were good reasons to believe that respondents, accompanied by five maids, took five boxes of Hennessy XO owned by the Guan Yiak Hardware and brought them to the 8th floor of 524 T. Pinpin St., Binondo, Manila; and that a person named "Yubol" took various checks from the company’s vault, which was later brought to the 7th floor of 524 T. Pinpin St., Binondo, Manila. When they entered the premises, Felicidad Chan Sy was accompanied by two policemen, which stunned Romer Sy Tan, so that he was not able to do anything in the face of the calculated and concerted actions of his grandmother, Felicidad Chan Sy, and her seven companions. Based on the foregoing circumstances, Romer Sy Tan believed that the crime of robbery was committed by the respondents. The power to issue search warrants is exclusively vested in the trial judges in the exercise of their judicial functions. A finding of probable cause, which would merit the issuance of a search warrant, needs only to rest on evidence showing that, more likely than not, a crime has been committed and that it was committed by the accused. The determination of whether probable cause exists as to justify the issuance of a search warrant is best left to the sound discretion of a judge. Apparent in the case at bar and as aptly found by the RTC judge, there was probable cause justifying the issuance of the search warrants. This was established by the Sinumpaang Salaysay and the testimonies, consisting of no less than 37 pages, given by witnesses who had personal knowledge of facts indicating that the crime of robbery had been committed and that the objects sought in connection with the offense were in the place sought to be searched. The facts narrated by the witnesses while under oath, when they were asked by the examining judge, were sufficient justification for the issuance of the subject search warrants.
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
ROMER SY TAN vs. SY TIONG GUE (MR) G.R. No. 174570 December 15, 2010 On March 22, 2010, respondents filed a Motion for Reconsideration wherein respondents informed this Court, albeit belatedly, that the Regional Trial Court (RTC) granted their motion for the withdrawal of the Information filed in Criminal Case No. 06241375. As such, respondents prayed that the decision be reconsidered and set aside and that the quashal of the subject search warrants be rendered moot and academic on the basis of the dismissal of the criminal case. Consequently, in view of the withdrawal of the Information for Robbery, the quashal of the subject search warrants and the determination of the issue of whether or not there was probable cause warranting the issuance by the RTC of the said search warrants for respondents’ alleged acts of robbery has been rendered moot and academic. Verily, there is no more reason to further delve into the propriety of the quashal of the search warrants as it has no more practical legal effect. Furthermore, even if an Information for Qualified Theft be later filed on the basis of the same incident subject matter of the dismissed case of robbery, petitioner cannot include the seized items as part of the evidence therein. Contrary to petitioner’s contention, he cannot use the items seized as evidence in any other offense except in that in which the subject search warrants were issued. Section 4, Rule 126 of the Revised Rules of Court provides: Section 4. Requisites for issuing search warrant. — A search warrant shall not issue except upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and things to be seized which may be anywhere in the Philippines.1avvphi1 Thus, a search warrant may be issued only if there is probable cause in connection with only one specific offense alleged in an application on the basis of the applicant’s personal knowledge and his or her witnesses. Petitioner cannot, therefore, utilize the evidence seized by virtue of the search warrants issued in connection with the case of Robbery in a separate case of Qualified Theft, even if both cases emanated from the same incident. Moreover, considering that the withdrawal of the Information was based on the findings of the CA, as affirmed by this Court, that there was no probable cause to indict respondents for the crime of Robbery absent the essential element of unlawful taking, which is likewise an essential element for the crime of Qualified Theft, all offenses which are necessarily included in the crime of Robbery can no longer be filed, much more, prosper.
25
The last 2 requisites for the issuance of a search warrant would be: 3. the particularity in the description of the place to be searched and 4. the particularity in the description of the things to be seized. Now, with respect to the place to be searched…In this case of People vs. Tuan , 628 SCRA 226, the issue raised by the appellant with respect to the description of the house to be searched was based on the fact that the warrant application and the warrant itself did not include the description of the house as a 2 storey house with several rooms. The judge issued a warrant for a particular house in a specific address. So is that sufficient to satisfy the requirement of particularity of description? The SC said YES. What is important (in particularity of description) would be to allow the searching officer (the one with the warrant) to sufficiently determine which place is sought to be searched and the subject of the search warrant. We must remember that the warrant is the authority which gives the searching party the right to enter the premises. So that if the warrant is sufficient by itself, like in this case where there is a specific address, there is no more need to put in the description that the house is a 2 storey structure with several rooms. The appellant apparently raised the issue because 1 of the rooms of the said 2 storey house was not used by him but had been rented for quite a while to somebody. But that was not taken by the RTC and the CA considering that this is a question on the particularity in the description of the place (to be searched). PEOPLE OF THE PHILIPPINES vs. ESTELA TUAN y BALUDDA G.R. No. 176066 August 11, 2010 Equally without merit is accused-appellant’s assertion that the Search Warrant did not describe with particularity the place to be searched. A description of the place to be searched is sufficient if the officer serving the warrant can, with reasonable effort, ascertain and identify the place intended and distinguish it from other places in the community. A designation or description that points out the place to be searched to the exclusion of all others, and on inquiry unerringly leads the peace officers to it, satisfies the constitutional requirement of definiteness. In the case at bar, the address and description of the place to be searched in the Search Warrant was specific enough. There was only one house located at the stated address, which was accusedappellant’s residence, consisting of a structure with two floors and composed of several rooms.
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
In view of the foregoing, the Court upholds the validity of the Search Warrant for accused-appellant’s house issued by MTCC Judge Cortes, and any items seized as a result of the search conducted by virtue thereof, may be presented as evidence against the accused-appellant.
Now, don’t confuse this with that old case involving PICOP in Bislig City. The issue there was on the particularity in the description of the place (to be searched) because PICOP is a very big compound. What was sought to be searched there were the structures where illegal firearms and ammunitions were supposed to have been kept and stored. In that case, the SC said that the warrant failed to describe the particular structure to be searched simply because it (PICOP) is a very big compound (including forest land, among others). So if it were to be a big compound where the structures are considerably separated from each other, there must have to be a sufficient description of which structure in the said address is sought to be searched—not only of the address of the big compound. PAPER INDUSTRIES CORPORATION OF THE PHILIPPINES (PICOP) vs. JUDGE MAXIMIANO C. ASUNCION G.R. No. 122092 May 19, 1999 Thus, this Court has held that "this constitutional right [i]s the embodiment of a spiritual concept: the belief that to value the privacy of home and person and to afford it constitutional protection against the long reach of government is no less than to value human dignity, and that his privacy must not be disturbed except in case of overriding social need, and then only under stringent procedural safeguards." Additionally, the requisite of particularity is related to the probable cause requirement in that, at least under some circumstances, the lack of a more specific description will make it apparent that there has not been a sufficient showing to the magistrate that the described items are to be found in particular place. In the present case, the assailed search warrant failed to described the place with particularly. It simply authorizes a search of "the aforementioned premises," but it did not specify such premises. The warrant identifies only one place, and that is the "Paper Industries Corporation of the Philippines, located at PICOP Compound, Barangay Tabon, Bislig[,] Surigao del Sur." The PICOP compound, however, is made up of "200 offices/building, 15 plants, 84 staff houses, 1 airstrip, 3 piers/wharves, 23 warehouses, 6 POL depots/quick service outlets and some 800 miscellaneous structures, all of which are spread out over some one hundred fifty-five hectares." Obviously, the warrant gives the police officers unbridled and thus illegal authority to search all the structures found inside the PICOP compound. In their Opposition, the police state that they complied with the constitutional requirement, because they submitted sketches of the
26
premises to be searched when they applied for the warrant. They add that not one of the PICOP Compound housing units was searched, because they were not among those identified during the hearing. These arguments are not convincing. The sketches allegedly submitted by the police were not made integral parts of the search warrant issued by Judge Asucion. Moreover, the fact that the raiding police team knew which of the buildings or structures in the PICOP Compound housed firearms and ammunitions did not justify the lack of particulars of the place to be searched. Otherwise, confusion would arise regarding the subject of the warrant — the place indicated in the warrant or the place identified by the police. Such conflict invites uncalled for mischief or abuse of discretion on the part of law enforces. Thus, in People v . Court of Appeals, this Court ruled that the police had no authority to search the apartment behind the store, which was the place indicated in the warrant, even if they intended it to be the subject of their application. Indeed, the place to be searched cannot be changed, enlarged or amplified by the police, viz .: . . . In the instant case, there is no ambiguity at all in the warrant. The ambiguity lies outside the instrument, arising from the absence of a meeting of the minds as to the place to be searched between the applicants for the warrant and the Judge issuing the same; and what was done was to substitute for the place that the Judge had written down in the warrant, the premises that the executing officers had in their mind. This should not have been done. It [was] neither fair nor licit to allow police officers to search a place different from that stated in the warrant on the claim that the place actually searched — although not that specified in the warrant — [was] exactly what they had in view when they applied for the warrant and had demarcated in the supporting evidence. What is material in determining the validity of a search is the place stated in the warrant itself, not what the applicants had in their thoughts, or had represented in the proofs they submitted to the court issuing the warrant. Indeed, following the officers' theory, in the context of the facts of this case, all four (4) apartment units at the rear of Abigail's Variety Store would have been fair game for a search. The place to be searched, as set out in the warrant, cannot be amplified or modified by the officers' own personal knowledge of the premises, or the evidence they adduced in support of their application for the warrant. Such a change is proscribed by the Constitution which requires inter alia the search warrant to particularly describe the place to be searched as well as the persons or things to be seized. It would concede to police officers the power of choosing the place to be searched, even if it not be that delineated in the warrant. It would open wide the door to abuse of the search process, and grant to officers executing a search warrant that discretion which the Constitution has precisely removed from them. The particularization of the description of the place to be searched may properly be done only by the Judge, and only in the warrant itself; it cannot be left to the discretion of the police officers conducting the search. (Emphasis supplied.)
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
The other matter with respect to the description of the place to be searched is mistake of the address. Now, in all warrant applications, it is required now (under a separate issuance of the SC) that there must have to be a sketch so that the judge also will be informed of the place intended to be searched. This supposed sketch is to be included in the records for the purpose of issuing the warrant.
This is because under the circumstances, it is not reasonably expected that the applicant or witnesses would have a clear and accurate description as to the quantity or quality. So, mostly, it would be phrased as “so much of the drugs,” described as methamphetamine hydrochloride or marijuana leaves, or in case of firearms, “pistols or rifles” would suffice—all based on the circumstances.
What if there is a mistake in the description of the place, say as to the address indicated in the warrant? Would the warrant be valid and therefore served validly as well in the correct address— not in the address as mistakenly indicated in the warrant? The first consideration is that the warrant is the piece of paper which authorizes entry into a property. Most often than not, the ones serving the warrant would be the applicant and the witnesses. There are instances (however) where these [search warrants] are not served by the applicant and the witnesses but by any other law enforcement agency. Normally these are the same persons [the applicant and the witnesses] who have previously conducted surveillance on the determination of probable cause later when they are to testify in the summary hearing. So they usually know where the place is actually located (the subject of the search). If the mistake in the warrant as to the address is clearly typographical (not really a mistake which would give rise to confusion), then the service of the warrant in the correct address and the search conducted therein would be considered valid— not because of the knowledge of the searching party per se but because the search was really intended in that place. This has happened in one case. It’s no longer included in the outline. This involves an address somewhere in Cebu, in Mandaue City. A person applied for SW where the address was, say, 123 Bonifacio St., a common name for a street in every locality. However, what was typed in the search warrant (SW) was merely Cebu City. That notwithstanding, the SW indicated also the business name for which the SW was issued. The SC said this was already sufficient. The error in this case was merely typographical. The SW was considered to have been validly issued; hence, it could be validly executed.
Case in Point (CIP): Ty v. De Jemil (2010)
4. Particularity in the description of the things to be seized What is required here is sufficiency of description. As such, based on the circumstances, the exact quantity of say, the drugs, or identity of the firearms to be seized (i.e. the serial number, the caliber)—these are not necessary for the purpose of complying with this requirement.
27
It was held that the property to be seized based on the warrant need not belong to the person against whom the warrant was issued. It must be remembered that in crimes (where searches are usually done) say, drugs or illegal possession of firearms, the criminal act is not premised on one’s ownership of the drugs or firearms, rather, it is based on one’s possession. Mere possession or (effective) control is sufficient to constitute a prima facie proof of your culpability. The fact of your non-ownership (of the drugs or firearms) will not destroy said proof since ownership was never, in the first place, a consideration for your apprehension. This also holds true if your defense is non-ownership of the place where the things seized were found—mere possession or control of the items is enough. ARNEL U. TY, MARIE ANTONETTE TY, JASON ONG, WILLY DY, and ALVIN TY vs. NBI SUPERVISING AGENT MARVIN E. DE JEMIL, PETRON GASUL DEALERS ASSOCIATION, and TOTALGAZ DEALERS ASSOCIATION, G.R. No. 182147; December 15, 2010 Petitioners were stockholders of Omni Gas Corporation (Omni). It is engaged in the business of trading and refilling of Liquefied Petroleum Gas (LPG) cylinders. The case started when the JGAC Law Office sent a letter to the NBI requesting, on behalf of their clients (Shellane Dealers Association, Inc., Petron Gasul Dealers Association, Inc., and Totalgaz Dealers Association, Inc., ) for the surveillance, investigation, and apprehension of persons or establishments in Pasig City that are engaged in alleged illegal trading of petroleum products and underfilling of branded LPG cylinders in violation of BP 33, as amended by PD 1865. The NBI’s test-buy yielded positive results for violations of BP 33. Thus, the NBI served warrants which resulted in the seizure of several items from Omni’s premises. Before the Supreme Court, Omni argued, among others, whether a probable cause exists against them for violations of Sec. 2 (a) and (c) of BP 33. The SC found probable cause based on, among others, the following grounds:
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
x x x Fourth. The issue of ownership of the seized branded LPG cylinders is irrelevant and hence need no belaboring. BP 33, as amended, does not require ownership of the branded LPG cylinders as a condition sine qua non for the commission of offenses involving petroleum and petroleum products. Verily, the offense of refilling a branded LPG cylinder without the written consent of the brand owner constitutes the offense regardless of the buyer or possessor of the branded LPG cylinder.After all, once a consumer buys a branded LPG cylinder from the brand owner or its authorized dealer, said consumer is practically free to do what he pleases with the branded LPG cylinder. He can simply store the cylinder once it is empty or he can even destroy it since he has paid a deposit for it which answers for the loss or cost of the empty branded LPG cylinder. Given such fact, what the law manifestly prohibits is the refilling of a branded LPG cylinder by a refiller who has no written authority from the brand owner. Apropos, a refiller cannot and ought not to refill branded LPG cylinders if it has no written authority from the brand owner. Fifth. The ownership of the seized branded LPG cylinders, allegedly owned by Omni customers as petitioners adamantly profess, is of no consequence. The law does not require that the property to be seized should be owned by the person against whom the search warrants is directed. Ownership, therefore, is of no consequence, and it is sufficient that the person against whom the warrant is directed has control or possession of the property sought to be seized. Petitioners cannot deny that the seized LPG cylinders were in the possession of Omni, found as they were inside the Omni compound. In fine, we also note that among those seized by the NBI are 16 LPG cylinders bearing the embossed brand names of Shellane, Gasul andTotalgaz but were marked as Omnigas. Evidently, this pernicious practice of tampering or changing the appearance of a branded LPG cylinder to look like another brand violates the brand owners’ property rights as infringement under Sec. 155.1 of RA 8293. Moreover, tampering of LPG cylinders is a mode of perpetrating the criminal offenses under BP 33, as amended, and clearly enunciated under DOE Circular No. 2000-06-010 which provided penalties on a per cylinder basis for each violation. Foregoing considered, in the backdrop of the quantum of evidence required to support a finding of probable cause, we agree with the appellate court and the Office of the Chief State Prosecutor, which conducted the preliminary investigation, that there exists probable cause for the violation of Sec. 2 (a) in relation to Sec. 3 (c) of BP 33, as amended. Probable cause has been defined as the existence of such facts and circumstances as would excite belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted. After all, probable cause need not be based on clear and convincing evidence of guilt, as the investigating officer acts upon reasonable belief—probable cause implies probability of guilt and requires more than bare suspicion but less than evidence which would justify a conviction.
28
5. The issuance of the SW was pursuant to a proper application with the issuing court GR: SEC. 2, RULE 126 EXC: A.M. ORDER 3-8-02 Under Sec. 2, Rule 126, as a rule, the warrant must be issued by the court which has territorial jurisdiction over the place where the crime was supposedly committed and where it shall be enforced. The exception would be if there is no court or judge in that court of said place, then the proper court is any court within the judicial region where the crime was supposed to have been committed. (For instance, if there is no RTC, then you can apply with MTC).
Sec. 2. Court where application for search warrant shall be filed.* --An application for search warrant shall be filed with the following: 1. 2.
Any court within whose territorial jurisdiction a crime was committed. For compelling reasons stated in the application, any court within the judicial region where the crime was committed if the place of the commission of the crime is known, or any court within the judicial region where the warrant shall be enforced.
SC A.M. No. 99-20-09-SC, Resolution clarifying guidelines on the application for enforceability of search warrants. It can be seen with said provision thus that gone are the days when the judge can issue a SW in one place but it will be enforced in any another place. In the case earlier cited, PICOP v. Asuncion, the warrant there was issued in the Quezon City and was served in BISLIG. This was valid before, but not now. Under Rule 126, the proper issuing court would be those as enumerated therein. There is however a special exception to Rule 126, Sec. 2, that is: SC A.M. Order 03-8-02
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
GUIDELINES ON THE SELECTION AND DESIGNATION OF EXECUTIVE JUDGES AND DEFINING THEIR POWERS, PREROGATIVES AND DUTIES (See attached file for Full Text) This AM Order concerns crimes which are heinous, illegal gambling…. (see enumeration). The SC said that SW for any of these crimes can be applied for in the Executive Judge (or if they are not available, the ViceExecutive Judges) of RTC of Manila or Quezon City and the SW issued shall be valid for service ANYWHERE in the Philippines. Chapter V. Specific Powers, Prerogatives and Duties of Executive Judges in Judicial Supervision xxx SEC. 12. Issuance of search warrants in special criminal cases by the Regional Trial Courts of Manila and Quezon City.– The Executive Judges and, whenever they are on official leave of absence or are not physically present in the station, the ViceExecutive Judges of the RTCs of Manila and Quezon City shall have authority to act on applications filed by the National Bureau of Investigation (NBI), the Philippine National Police (PNP) and the Anti-Crime Task Force (ACTAF), for search warrants involving heinous crimes, illegal gambling, illegal possession of firearms and ammunitions as well as violations of the Comprehensive Dangerous Drugs Act of 2002, the Intellectual Property Code, the Anti-Money Laundering Act of 2001, the Tariff and Customs Code, as amended, and other relevant laws that may hereafter be enacted by Congress, and included herein by the Supreme Court. The applications shall be personally endorsed by the heads of such agencies and shall particularly describe therein the places to be searched and/or the property or things to be seized as prescribed in the Rules of Court. The Executive Judges and ViceExecutive Judges concerned shall issue the warrants, if justified, which may be served in places outside the territorial jurisdiction of the said courts. The Executive Judges and the authorized Judges shall keep a special docket book listing names of Judges to whom the applications are assigned, the details of the applications and the results of the searches and seizures made pursuant to the warrants issued. This Section shall be an exception to Section 2 of Rule 126 of the Rules of Court.
Period of Validity of Search Warrant
The SW is valid 10 days from issuance, and not from the receipt of copy of the same by the law officers.
29
a)
It is within said period that searches and seizures can be made. Otherwise, it will be void. (Sec. 10, Rule 126 )
b)
Any search and seizure conducted in a day can be continued to another day, provided the next day falls within that 10 day period. Time of the Search
As a rule, the search can be conducted only during daytime. (Sec. 9, Rule 126 ). Search during nighttime may be conducted as an exception if authorized by the court thru a special order after application therein. The reason for this is that there are more “evils” during nighttime which must be avoided. Requirement of Witnesses
Under Sec. 8, Rule 126: Sec. 8. Search of house, room, or premises to be made in presence of two witnesses. – No search of a house, room, or any other premises shall be made except in the presence of the lawful occupant thereof or any member of his family or in the absence of the latter, two witnesses of sufficient age and discretion residing in the same locality.
As such, it is common in searches that barangay officials are present as independent persons witnessing the same. CIP:
Del Rosario v. Donato, Sr. (2010)
The SC said that the applicants and witnesses need not be residents of the place intended to be searched. This ruling came about because the reason for the provision Sec. 2, Rule 126 (requiring that the court where the SW must be applied for should be the court which has territorial jurisdiction over the place where the crime was committed ) was the belief that witnesses to crimes are usually found (or residing) in the same place intended to be searched. That is the general rule only; there is no requirement that they must be so. ARTHUR DEL ROSARIO and ALEXANDER DEL ROSARIO, Petitioners, v. HELLENOR D. DONATO, JR. and RAFAEL V. GONZAGA, Respondents. March 5, 2010
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
Philip Morris Products, Inc. Philip Morris wrote the NBI, requesting assistance in curtailing the proliferation of fake Marlboro cigarettes in Angeles City, Pampanga. After doing surveillance work in that city, Respondent Donato, Jr., the NBI agent assigned to the case, succeeded in confirming the storage and sale of such fake cigarettes at the house that belonged to petitioner del Rosario. Respondent Donato applied for a search warrant. The NBI agents proceeded to implement the warrant; however, their search yielded no fake Marlboro cigarettes. Subsequently, Petitioners filed a complaint for P50 million in damages against Respondents. The latter answered the complaint with a motion to dismiss on the grounds of: a) the failure of the complaint to state a cause of action; b) forum shopping; and c) the NBI agents’ immunity from suit, they being sued as such agents. The RTC denied the motion, which was annulled by CA. Petitioners sought reconsideration of the decision but the CA denied it; hence, this petition for review. Issues 1. Whether or not the CA correctly ruled that the complaint of the petitioners did not state a cause of action; and 2. Whether or not the CA correctly ruled that the petitioners were guilty of forum shopping. Rulings [One] The CA held that the petitioners’ complaint before the RTC failed to state a cause of action. This was because while said complaint alleged that the NBI agents unlawfully procured and enforced the search warrant issued against the Del Rosarios, it failed to state the ultimate facts from which they drew such conclusion. According to the Del Rosarios, the allegations in their complaint stated a cause of action against respondents NBI agents. However, the court found that all that the Del Rosarios alleged was that respondents NBI agents used an unlawfully obtained search warrant against them, evidenced by the fact that, contrary to the sworn statements used to get such warrant, the NBI agents found no fake Marlboro cigarettes in petitioner Alexander del Rosario’s premises. It must be noted that a judicially ordered search that fails to yield the described illicit article does not of itself render the court’s order “unlawful.” The Del Rosarios did not allege that respondents NBI agents violated their right by fabricating testimonies to convince the RTC of Angeles City to issue the search warrant. Their allegation that the NBI agents used an unlawfully obtained search warrant is a mere conclusion of law. While a motion to dismiss assumes as true the facts alleged in the complaint, such admission does not extend to conclusions of law. Statements of mere conclusions of law expose the complaint to a motion to dismiss on ground of failure to state a cause of action.
30
Further, the allegation that the search warrant in this case was served in a malicious manner is also not sufficient . Allegations of bad faith, malice, and other related words without ultimate facts to support the same are mere conclusions of law. The Del Rosarios’ broad assertion in their complaint that the search was conducted “in full and plain view of members of the community” does not likewise support their claim that such search was maliciously enforced. There is nothing inherently wrong with search warrants being enforced in full view of neighbors. In fact, when the respondent or his representative is not present during the search, the rules require that it be done in the presence of two residents of the same locality. These safeguards exist to protect persons from possible abuses that may occur if searches were done surreptitiously or clandestinely. [Two] Invoking Section 21 of this Court’s AM 02-1-06-SC, the CA held that, rather than file a separate action for damages, the Del Rosarios should have filed their claim for compensation in the same proceeding and with the same court that issued the writ of search and seizure. The Del Rosarios were thus guilty of forum shopping. The SC found this untenable as the subject search warrant was not issued under A.M. 02-1-06-SC, which governed the issuance of a writ of search and seizure in a ci vil action for infringement filed by an intellectual property right owner against the supposed infringer of his trademark or name. Philip Morris, the manufacturer of Marlboro cigarettes, did not go by this route. Philip Morris did not file a civil action for infringement of its trademark against the Del Rosarios before the RTC of Angeles City. Instead, Philip Morris sought assistance from the NBI for the apprehension and criminal prosecution of those reportedly appropriating its trademark and selling fake Marlboro cigarettes. In turn, the NBI instituted a police action that included applying for a search and seizure warrant under Sections 3, 4, 5 and 6 of Rule 126 of the Rules of Criminal Procedure (not under the provisions of A.M. 02-1-06-SC) against the Del Rosarios upon the belief that they were storing and selling fake Marlboro cigarettes in violation of the penal provisions of the intellectual property law. The proceeding under Rule 126, a limited criminal one, does not provide for the filing of counterclaims for damages against those who may have improperly sought the issuance of the search warrant . Consequently, the Del Rosarios had the right to seek damages, if the circumstances warranted, by separate civil action for the wrong inflicted on them by an improperly obtained or enforced search warrant. Unfortunately, their complaint, as worded, failed to state a proper cause of action. Petitioner Arthur del Rosario claims that respondents NBI agents wrongfully included him as respondent in their application for a search warrant since he neither owned the house at 51 New York Street nor resided in it.
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
office, is to determine probable cause for the issuance of warrant only.
The court said that the rules do not require respondents in search warrant proceedings to be residents of the premises to be searched. If this were the case, criminals in possession of illegal articles could simply use other people’s residence for storing such articles to avoid being raided and searched.
In the old case of Lim (no citation), the SC said that the judge in determining the probable cause for the existence of a warrant is actually performing a judicial function, whereas the determination by the investigating officer as to the existence of a probable cause to indict a person in court is an executive function.
The procedure for the issuance of SW and Warrant of Arrest is different.
This is so even if the Constitution provides that (together) they shall not issue except upon…. (see provision: Sec. 2, Article III).
But now, under the Rules of Court, the judge, upon receiving the full set of documents from the investigating officer can both, one, perform the executive function by determining the existence of probable cause whether or not there is a well-engendered belief to charge the person in court. If there is none (probable cause), the judge must require the prosecution to submit additional evidence.
As to Warrants of Arrest Under the Rules of Court, the criminal case against an accused has already been processed during preliminary investigation or preliminary examination. As such, what is now before the court for the issuance of warrant (of arrest) is a complete set of records coming from the investigating officer him or herself (whether from the prosecutor or the MTC judge [if s/he is still allowed to do so, today? No longer…] or by the Ombudsman in appropriate cases).
And second, if after that or even before that the judge really believes there is no really probable cause to continue with the indictment or prosecution of the case, then the judge can dismiss the case. This is the second right:
The judge is required to personally go over these complete records, meaning all the affidavit complaint/s, counter-affidavit/s (if any), documentary evidences, the finding of the investigating officer (resolution) and the Information (which is prepared by the investigating office and approved by the officer therein). The judge must go over these. With those records in hand, under the Rules of Court, the judge has these three rights: 1.
To determine whether or not there is probable cause to proceed, that is, whether or not there is probable cause to cause the indictment of the accused.
a)
b) If the judge does not find any probable cause or does not continue with the indictment, the judge must require the investigating officer (the prosecutor) to submit, within a certain period of time, further documents or evidence for him or her (the judge) to determine whether or not there is probable cause to proceed. It would seem that under the Rules of Court, the judge can determine probable cause just like a prosecutor (referring to this right). This is a variation from the previous discussions that the determination by the judge of the existence of a probable cause, when the case docket is received by him from the investigating
31
2.
If the judge believes there is no probable cause to continue with the indictment or prosecution of the case, then the judge can dismiss the case.
3.
The judge, upon finding the existence of a probable cause to continue with the indictment, must then determine whether or not there is a probable cause to issue the warrant of arrest.
Now, is there a difference between those two? There is: In the first determination, it is for the purpose of determining whether there is a need to proceed or continue with the indictment; In the second, it is for the purpose of determining whether or not there is a need to place the person under the custody of the court. Thus, if the judge finds there is a probable cause to issue a warrant of arrest, then the warrant shall issue.
Now if you compare that with Search Warrants: As to Search Warrants
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
The difference as to the procedure for their issuance primarily lies on the presence or absence of an indictment. When the search warrant is applied for, granted, and issued by the court, there is yet to be an indictment or charge. This is because the reason why the SW was applied for in the first place is to secure evidence so that the subject person may be indicted (under a proper charge or case). But when it is the warrant of arrest that is going to be issued, there is already a prior determination by the investigating officer that the crime has been committed and there is already a wellfounded belief that the person respondent has probably committed the same and, therefore, s/he must be brought to trial. As such, after the warrant of arrest is issued by the judge, there would be then no longer issue as to whether or not there would be case against that person to be tried before the court. The same has been resolved initially.
2.
3.
As to the time of implementat ion
As to the manner of implementat ion
Further Distinctions
1.
As to lifetime
its
SEARCH WARRANT 10 days from its issuance
WARRANT OF ARREST
The arrest can be made at anytime of the day and there is no limitation as to place. It can be implemented anywhere within the territorial jurisdiction of the court. It must be This need not be shown to shown to the the person to be arrested. person who is in control Although it must be shown of the place to the accused at some intended to later time when the same be searched will be requested, but definitely not needed during the arrest per se.
None. It is valid until it is served. The 10 day period referred to under the Rules of Court (Sec. 4, Rule 113) refers to the requirement of return or the duty of the enforcing officer to return the warrant to the court, whether or not it has been served. This is not the life of warrant of arrest. In practice, if after the return was made the accused was not yet indicted or the arrest was not successful, an alias warrant is issued upon application by the prosecution. This issues as a matter of course.
32
As a rule, it must be in daytime.
That alias warrant will be outstanding and will continue to have effect until the accused has been arrested. None.
VALID INSTANCES OF WARRANTLESS SEARCHES AND ARRESTS
There are 6 generally known exceptions to warrantless searches and seizures. There are also 6 as to warrantless arrests. However, there is a common exception for both: Common ground:
Lack of sufficient opportunity to secure a warrant
That would justify generally the so called warrantless search or warrantless arrest. Again, there is no sufficient opportunity to secure a warrant. Now, the 6 exceptions are: 1.) 2.) 3.) 4.) 5.)
Search of moving vehicles Search incident to a valid arrest Evidence seized in plain view The stop and frisk situation Searches under express waiver, and
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
6.) Search under the Customs and Tariffs Code
arrest. There is no such thing as arrest then searched in cases of search of moving vehicles. So, this is always the situation.
SEARCH OF MOVING VEHICLES
Now, in relation to putting up of checkpoints, the Supreme Court has already made a pronouncement in the case of Davilla where putting up of checkpoints and the searches conducted in the checkpoint must have to follow certain guidelines:
Now, search of a moving vehicle is largely justified on account of the nature of a vehicle which is easy to take away from the jurisdiction of the place where it is intended to be searched. Nonetheless, even if it is a known exception, what is required is a minimum determination of probable cause, that the vehicle must be stopped and therefore must be searched.
1.
It is not correct to assume that just because search of moving vehicles is a known exception that law enforcement agents would just or be allowed to stop a vehicle and search that vehicle for no apparent reason.
The decision to put up a checkpoint must have to be determined by the responsible officers, the one in command, because that person would be in the best position to determine which of his men will be allocated for purposes of putting up a checkpoint.
2.
Again, there is a minimum determination of probable cause that there is a need to stop that vehicle and search it. What is that probable cause?
The checkpoint must have to be manned not only by enlisted personnel, but also, there must have to be for purposes of responsibility.
3.
The checkpoint must have to be stationary. It must not be mobile except in emergency situations like there is an ongoing bank robbery, there is an ongoing crime being committed, where police officers in the field will determine which would be the best locations to set up the checkpoints to avoid the escape of the perpetrators. Generally, it would have to be stationary.
4.
The search in the checkpoints must have to be limited to visual search. So that the vehicles must have to be detained in those checkpoints consistent with what is required for the conduct of a visual search. The rule is visual search—no extensive search is allowed unless, (here we go again), there is a minimum determination of probable cause that an extensive search must have to be conducted. In Davao, we are used to the checkpoints of Task Force Davao and I think they have largely complied with the requirement of a visual search unless, you look suspicious, where an extensive search will have to be conducted.
Almost the same as that of a judge but this time, only to be determined by a police officer and not by a judge. So, such facts and circumstances which would lead that police officer that a crime has been committed and the goods, effects, and objects to be used for the commission of the crime are in the motor vehicle. That minimum determination is a state of mind and would not be easy to dispute. Now, in relation to search of moving vehicles, most of the cases here, you would notice, would involve the participation of informants, the putting up of checkpoints and the police officers eventually getting hold of that vehicle in a checkpoint. Those are usually the same set of facts in almost all cases of search of moving vehicles that have reached the Supreme Court. So: An information is received, reliable information from a reliable source that this person will be travelling in that motor vehicle. There is a sufficient description of a motor vehicle travelling along this route and bringing with him illegal items or contraband; and true to the information relayed, at some point in time later in the day, this motor vehicle is stopped at a checkpoint purposely put up based on that information.; and a person which would fit the description given by the reliable informant is… not really apprehended because it is supposed to be searched and then
33
That is why I was wondering, I’ve read in today’s local papers that one person is violated for violation the special gun ban rule
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
in Davao from August 1 – 31 in the task force Davao checkpoint in the south wondering because, how was that firearm discovered? Was that person carrying it with him or pointing it to the task personnel? (giggles). If you have been to those checkpoints regularly, you would notice that, in the visual search they would look at you, look at your dashboard, and look at the direction of the glove compartment. They would not even ask you to open the glove compartment because that is not part of visual search. Unless of course you are acting suspiciously. Perhaps that person was acting suspiciously because there was an extensive search, and it (gun) was found in his glove compartment. If you regularly pass those checkpoints, why would you place your handgun in the glove compartment, why not place it somewhere else where they do not usually conduct this search. Either magaling yung task force or tanga yung nahuli. I was reminded when some lawyers were in the list thingy… there was a time when lawyers were firing their firearms to distressed themselves and a lot of lawyers had firearms, some were license some with not. And for those licensed, some do not even have the permit to carry the firearm outside the residence. So there were questions asked, how would I bring my handgun or my guns to the firing range and there were several who said “Why? If you are bringing them to the firing range, would you place them on your hood? Of course you will have to conceal them, place them in places where they would not look for it. Because if there is nothing suspicious about you running your vehicle in a highway going to the firing range, they will not stop and search your vehicle… ahh.. Okay. Do not place it on the hood of your vehicle, place it somewhere else. SEARCH INCIDENT TO A VALID ARREST
Okay, now the second instance is search incident to a valid arrest. Now, I mentioned earlier in search of moving vehicles based on those usual set of facts, they do not effect an arrest, they just conduct the search and then effect the arrest later, after the discovery of the illegal item or contraband. Mostly, if they see this person fitting the description, they will search the bags or belongings nearest to that person. And in all these cases where the Supreme Court upheld the search for moving vehicles, they validated it because there was a search first before the arrest was made.
34
Now, search incident to a valid arrest is of a different species as that of search of moving vehicles situation, because here there must have to be an arrest first before a search will have to be conducted. The arrest must have to be valid before the search is allowed and would be considered as valid. The search however, to be valid, must have to follow the two limitations: 1.) Limitation on time 2.) Limitations on space Limitation on time because, the reason why a search is allowed immediately after a valid arrest is, to protect the arresting officer form any act of violence that may be committed on him by the person arrested on account of concealed weapons. That is why search is allowed immediately after the arrest. Second, in order for the arresting officer to secure the evidence that may have been used or fruits or objects which may be used for the commission of the offense—which may have been in the possession or in the person of the person arrested or, within his immediate vicinity. And that should be the reason for allowing the requirement of the second limitation, limitation on space. The search must have to be conducted on the person only of the person arrested as well as within the immediate environment which he has effective control. Again, this is in relation to the objects or fruits of the crime or other objects that he may use to commit a crime or other weapons which he may use to effect an escape or to avoid an arrest. So, the limitation is extended to the immediate vicinity where he has effective control. Otherwise, it if were to be literally on his person then it would be easy for that person arrested to escape liability simply by throwing away all those things that would have been seized from his person to avoid any liability. It will not however extend to the space or environment where he no longer has effective control. In one earlier case, the arrest for example, was effected in the living room of the house, the search conducted in the separate rooms of the safe house were not considered as valid searches because they were not already complying with the limitation on space. It must have to be in the living room. EVIDENCE SEIZED IN PLAIN VIEW
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
This is the so called “plain view doctrine”. Now in plain view doctrine, this justifies also the seizures made of items not listed or described in the search warrant. There is some confusion, (I know it’s not you but for some),where, the question is asked, can an item be seized even if it is not described or listed in the warrant. The answer is yes, provided it falls under any of these exceptions, and one of the most common exceptions would be the so called evidence in plain view. Now in evidence in plain view, the requirements are: 1.) There is a justification for the prior intrusion – meaning, the police officers must have a right to be in the place where the search was made before there can be an allowed seizure therein. If they were not properly equipped with any right to be in the place to be searched to begin with, then any search conducted thereafter would not be considered as valid. 2.) The evidence is inadvertently discovered—meaning , there was no intent to look for this object or thing except that in the course of the search, these things were accidentally discovered. Again, this is a state of mind, but, it is usually appreciated if say, the search was conducted on account of a search warrant. There were items listed on the search warrant, say, the items were drugs. And the conduct of the search where drugs would normally be stashed or normally be found if kept or hidden, found firearms which turned out to be not licensed. Then this is a good example of that (mumbles, sounds like ”daywhore”), “ inadvertently” or “accidentally” discovered. 3.) Evidence is open to the eye or hand of the searching officer – it simply means, again, that it strengthens the requirement that there is no intent to really search for these things. They were just discovered, they are open for the eye to see or open for the hand to feel when the valid search was conducted. 4.) The evidence of illegality is immediately apparent—this is where most of the cases are discussed. The evidence of illegality to be apparent is literal. It must be, just by looking at it, the officer can make a conclusion
35
that this is an illegal item or contraband. There is no need for the police officer to exercise discretion that this could be or may be illegal. Now this plain view doctrine is almost always applied in cases involving drugs and firearms simply, because the presumptions here in the country on possession of firearms and drugs are against regularity or allowance. We do not have the constitutional right to bear arms and therefore, if a person is caught possessing a firearm, the obligation is on him, to prove that he is duly permitted and duly allowed to carry that farm. So the presumption is always against regularity. Same with drugs—regulated rugs included. We have prohibited and regulated drugs. Even where the drugs are regulated drugs, it is the person arrested in possession of these regulated drugs to prove that he is duly permitted to have or possess these drugs. Of course, if prohibited, there is no other recourse but that person is to be arrested. You cannot prove that you are in possession of marijuana duly authorized by the state because it is medicinal for you. It is not accepted as a theory or law in the country. In other states in the US, marijuana is medicinal in certain quantities, wag lang mag overdose. (NB: there is no practical toxic level of marijuana; hence, you cannot overdose on it”—Wa El). Okay. So, there was one case, ahhmmm… it’s no longer here, one of the older cases. The arrest was made in the living room because of a buy bust operation. And so they searched the immediate vicinity of the living room. They went to the next room; it was actually the kitchen, where they found a plastic bag. The plastic was opaque; it was not translucent, hanging by a nail on the wall. Hey brought it down and they opened it. They saw some item wrapped in newspaper. When they opened it up, they were bricks of dried marijuana. So the question is, are those bricks of dried marijuana leaves admissible in evidence? (Actually, it should be “buds” not “leaves”, the flowering portion of the plant, and it is “cured”, not “dried”—Wa El) Supreme Court said: -It will not fall under search incident of a valid arrest because they went in the next room. The living room was partitioned with a wall from the kitchen.
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
ASONG, JP LEO KINTANAR, KRISZA JOY LAMAN, JAHMES ”WA EL”
-Secondly, it could not fall under evidence in plain view because, the evidence of illegality is not immediately apparent. They had to bring down the bag, opened the packing of newspaper, to determine, to discover that it was indeed a prohibited drug. That being the case, the Supreme Court said, the evidence of illegality is not immediately apparent. For illegal gambling for example, if there is a raid for illegal gambling, what can be seized in plain view? Money? Can money be seized when there is a search on account of illegal gambling under plain view doctrine?
Without inspiration the best powers of the mind remain dormant. There is a fuel in us which needs to be ignited with sparks. — Johann Gottfried Von Herder
Is the evidence of illegality just by looking at money immediately apparent? Di noh? That is why in relation to these special offenses, not when the possession is illegal per se by presumption, like drugs and firearms. If they were to be like, violation of the Internal Revenue Code, violation of Intellectual Property Code. The description of the things to be seized must also be indicated to have been illegally used or illegally obtained in violation of these laws. Otherwise, the mere identification of these items which are not illegal per se will not constitute as sufficient justification on description to validate the seizure of these items.
�� ��������� ��� ��� ����� ��� ���� ���� ��� ���� �� ��� �� ��� ������ ��� ��� ������ �� ��� ������� ������� ��� ����� �� ��� ����� ��� ��� ������ �� ��� �� �������������� ��� ��� ������ �� ��� �� ������ ��� ���� ��� ������ ��������� �� ���� ����� ������������� ����
In some old cases involving piracy, or video piracy, this case of Sunny Philippines, this case of Columbia Pictures... The seizure of television sets and video recorders and other items used in the so called violation of intellectual property rights, but which were not sufficiently described as having been used for such illegal activity were ordered returned by the court because the possession of these items are not illegal per se. What is so illegal for possessing a television set? Or a video recorder? Eh mahilig lang talaga akong mag record kaya may sampu ako dyan. So there must have to be a description that these items are illegally used in violation of these laws. Gambling, the same, normally the money or monies are always described as bets. Because if you only indicate there, “money”, it will end up to be kept by the police officer.. no no (sniggles). They will return… not kept, returned to the person from whom they were taken. Let us continue next meeting.
36
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
August 7, 2012 VALID INSTANCES OF WARRANTLESS SEARCHES AND SEIZURES
barged into the residence. There, they verified the informant’s tip that the accused were actually in pot session. There were several items taken consisting of sachets which turn out to be MET (shabu). So, the question was whether or not the search and seizure of these drugs was considered valid and therefore admissible under the doctrine of pain view. The SC reiterated the conditions in which search in plain view shall be applicable.
A. SEARCH OF MOVING VEHICLES
The exception as to warrantless searches and seizures has also been applied to searches and seizure of MOVING VESSELS. Like searches on MOTOR VESSELS (in the same characterization of MOVING VEHICLES), [they] can be also be brought out of the territorial jurisdiction of the search warrant where it is supposed to be implemented or served. As such, searches of moving vessels are considered covered by the instance of search of moving vehicles. Thus, there must have to be also that minimum determination of probable cause. Also covered are searches on AIRCRAFTS. These vehicles have the same characteristics as that of those previously mentioned. In their case, however, the visible searches will be to determine violations of customs and tariff laws as well as immigration laws. Also, in some cases, the search-of-moving-vehicles-exception has been applied to cover instances of SEARCHES OF VEHICLES IN BORDERS. In that case, checkpoints are conducted at the borders (land border, no border as to seas). These are [conducted and] allowed when the vehicles to be searched would cross the border to get to another state. So again, invariably, those instances are covered under searches of moving vehicles, which by their nature, are moving in or out the territory where the search warrant will have to be implemented.
The first—and which is the most important requisite or condition—is that there must have to be a valid prior intrusion. The intrusion must have to be valid before all the rest of the conditions will be appreciated in favor of the applicability of the doctrine. Now, based on the facts of the case, the knowledge of the police officers was based on the informant’s tip. Neither did they have any personal knowledge, nor anything which consisted of probable cause so as to make the entry. Therefore, the intrusion was not justifiable. Since the intrusion was not justified, the discovery of the drugs later on would not be justified as well because they should not have been there to begin with.
G.R. No. 191366 December 13, 2010 PEOPLE OF THE PHILIPPINES vs. ARNOLD MARTINEZ Y NGELES, EDGAR DIZON Y FERRER, REZIN MARTINEZ Y CAROLINO, and RAFAEL GONZALES Y CUNANAN This case would appear to fall under either a warrantless search incidental to a lawful arrest or a plain view search, both of which require a lawful arrest in order to be considered valid exceptions to the constitutional guarantee. Rule 113 of the Revised Rules of Criminal Procedure provides for the circumstances under which a warrantless arrest is lawful. Thus: Sec. 5. Arrest without warrant; when lawful . – A peace officer or a private person may, without a warrant, arrest a person:
B. PLAIN VIEW DOCTRINE
(a)
Now, the last instance to be discussed is SEARCH IN PLAIN VIEW. Case in point is PEOPLE vs. MARTINEZ . This involves a search of residence in Trinidad Subdivision, Dagupan City while the occupants of the house were having pot session. So, the police officer, with the help of the informants,
37
(b)
(c)
When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.xxx The manner by which accused-appellants were apprehended does not fall under any of the above-enumerated categories. Perforce, their arrest is illegal. First, the arresting officers had no personal knowledge that at the time of their arrest, accused-appellants had just committed, were committing, or were about to commit a crime. Second, the arresting officers had no personal knowledge that a crime was committed nor did they have any reasonable ground to believe that accused-appellants committed it. Third, accused-appellants were not prisoners who have escaped from a penal establishment. Neither can it be said that the objects were seized in plain view. First, there was no valid intrusion. As already discussed, accusedappellants were illegally arrested. Second, the evidence, i .e., the tea bags later on found to contain marijuana, was not inadvertently discovered. The police officers intentionally peeped first through the window before they saw and ascertained the activities of accused-appellants inside the room. In like manner, the search cannot be categorized as a search of a moving vehicle, a consented warrantless search, a customs search, or a stop and frisk; it cannot even fall under exigent and emergency circumstances, for the evidence at hand is bereft of any such showing. On the contrary, it indicates that the apprehending officers should have conducted first a surveillance considering that the identities and address of the suspected culprits were already ascertained. After conducting the surveillance and determining the existence of probable cause for arresting accused-appellants, they should have secured a search warrant prior to effecting a valid arrest and seizure. The arrest being illegal ab initio, initio, the accompanying search was likewise illegal. Every evidence thus obtained during the illegal search cannot be used against accused-appellants; hence, their acquittal must follow in faithful obeisance to the fundamental law. It has been held that personal knowledge of facts in arrests without warrant must be based upon probable cause, which means an actual belief or reasonable grounds of suspicion. The grounds of suspicion are reasonable when the suspicion, that the person to be arrested is probably guilty of committing an offense, is based on actual facts, that is, supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. Xxx Neither can it be said that the subject items were seized in plain view. The elements of plain view are: (a)
38
(b) The evidence was inadvertently discovered by the police who have the right to be where they are; (c) The evidence evidence must be immediately immediately apparent; and (d) "Plain view" justified mere seizure of evidence without further search. The evidence was not inadvertently discovered as the police officers intentionally entered the house with no prior surveillance or investigation before they discovered the accused with the subject items. If the prior peeking of the police officers in Bolasa was held to be insufficient to constitute plain view, then more so should the warrantless search in this case be struck down. Neither can the search be considered as a search of a moving vehicle, a consented warrantless search, a customs search, a stop and frisk, or one under exigent and emergency circumstances. circumstances. The apprehending officers should have first conducted a surveillance considering that the identity and address of one of the accused were already ascertained. After conducting the surveillance and determining the existence of probable cause, then a search warrant should have been secured prior to effecting arrest and seizure. The arrest being illegal, the ensuing search as a result thereof is likewise illegal. Evidence procured on the occasion of an unreasonable search and seizure is deemed tainted for being the proverbial fruit of a poisonous tree and should be excluded. The subject items seized during the illegal arrest are thus inadmissible. The drug, being the very corpus delicti of the crime of illegal possession of dangerous drugs, its inadmissibility thus thus precludes conviction, and calls for the acquittal of of the accused.
The SC noted some other cases In the case of PEOPLE vs. BOLASA, BOLASA, the SC said that even peeping from a hole does not even constitute plain view . In the case of BOLASA, there was also an informant’s tip. An informant relayed to the police officers that a man and a woman, supposedly spouses, were packing marijuana leaves in their residence. So what the police did was that they went to the house, peeped through the hole and actually saw in fact that the spouses were indeed packing marijuana leaves. They then entered the residence, announced the arrest and seized the evidence. The SC said there was no justifiable intrusion. They should have, as in the case of Martinez , applied for a warrant. The SC made a rule that the police should have conducted surveillance under the circumstance. circumstance. And based on their (police) personal knowledge, they could have applied for search warrant and thereafter serve or implement said search warrant.
A prior valid intrusion based on the valid warrantless warrantless arrest arrest in which the police are legally present in the pursuit of their official duties;
G.R. No. 125754. December 22, 1999
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pe •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Panga ndatun•Pinoon•Go•Pangandaman• ndaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Maga •Dumagan•Limbo-Cabuhat •Belen•Rubinos•Magabilen•Trinidad•Ley bilen•Trinidad•Leyes•Givero•Travilla• es•Givero•Travilla•Elman•Paras•Tinapa Elman•Paras•Tinapay•Orcullo•Macla•La y•Orcullo•Macla•Ladeza deza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
PEOPLE OF THE PHILIPPINES vs. ZENAIDA BOLASA Y NAKOBOAN and ROBERTO DELOS REYES. An anonymous caller tipped off PO3 Dante Salonga and PO3 Albert Carizon that a man and a woman were repacking prohibited drugs at a certain house in Manila. PO3 Salonga and PO3 Carizon together with SPO1 Fernando Arenas immediately proceeded to the house of the suspects and parked their car some some three hundred (300) meters away. away. They walked towards their quarry's lair accompanied this time by their unnamed informer. When they reached the house they "peeped (inside) through a small window and x x x saw one man and a woman repacking suspected marijuana." They entered the house and introduced themselves as police officers to the occupants and thereupon confiscated the tea bags and some drug drug paraphernalia. paraphernalia. They arrested the two (2) (2) who turned out to be the accused Zenaida Bolasa y Nakoboan and Roberto delos Reyes. Subsequent examination of the tea bags by NBI Forensic Chemist Rubie Calalo confirmed the suspicion that the tea bags contained marijuana. RULING Arrests and seizures in the following instances are not deemed “unreasonable” and are thus allowed even in the absence of a warrant – 1. Warrantless search incidental incidental to a lawful lawful arrest (Sec. 12, Rule Rule 126 of the Rules of Court and prevailing jurisprudence); 2. Search of evidence in “plain view.” The elements are: (a) a prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties; (b) the evidence was inadvertently discovered by the police who have the right to be where they are; (c) the evidence must be immediately apparent; and, (d) "plain view" justified mere seizure seizure of evidence without further search. 3. Search of a moving vehicle. Highly regulated by the government, the vehicle’s inherent mobility reduces expectation of privacy especially when its transit in public thoroughfares furnishes a highly reasonable suspicion amounting to probable cause that the occupant committed a criminal activity; 4. Consented warrantless search; 5. Customs search; 6. Stop and Frisk; and 7. Exigent and emergency circumstances. circumstances. An arrest is lawful even in the absence of a warrant: (a) when the person to be arrested has committed, is actually committing, or is about to commit an offense in his presence; (b) when an offense has in fact been committed and he has reasonable ground to believe 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.
39
A person charged with an offense may be searched for dangerous weapons or anything which may be used as proof of the commission of the offense. IN THIS CASE, the manner by which accused-appellants were apprehended does not fall under any of the above-enumerated categories. Perforce, their arrest arrest is illegal. First, the arresting arresting officers had no personal knowledge that at the time of their arrest, accusedappellants had just committed, were committing, or were about to commit a crime. Second, the arresting officers had no personal knowledge that a crime was committed nor did they have any reasonable ground to believe that accused-appellants accused-appellants committed it. Third, accused-appellants were not prisoners who have escaped from a penal establishment. Neither can it be said that the objects were seized in plain view. First, there was no valid intrusion. As already discussed, accusedaccusedappellants were illegally arrested. Second, the evidence, evidence, i.e., the tea bags later on found to c ontain marijuana, was not inadvertently discovered. The police officers officers intentionally peeped first through the window before they saw and ascertained the activities of accused-appellants inside the room. In like manner, the search cannot be categorized as a search of a moving vehicle, a consented warrantless search, a customs search, or a stop and frisk; it cannot even fall under exigent and emergency circumstances, for the evidence at hand is bereft of any such showing. On the contrary, it indicates that the apprehending officers should have conducted first a surveillance considering that the identities and address of the suspected culprits were already ascertained. After conducting the surveillance and determining the existence of probable cause for arresting accused-appellants, they should have secured a search warrant prior to effecting a valid arrest and seizure. The arrest being illegal ab initio, the accompanying accompanying search was likewise likewise illegal. Every evidence thus obtained during during the illegal search cannot be used against accused-appellants; hence, their acquittal must follow in faithful obeisance to the fundamental law.
C. STOP AND FRISK
This has been considered as an exception because to begin with, there is no actual intention to search. The STOP and FRISK SITUATION is based on the 1968 ruling of the US SC in the case of TERRY vs. OHIO. OHIO.
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pe •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Panga ndatun•Pinoon•Go•Pangandaman• ndaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Maga •Dumagan•Limbo-Cabuhat •Belen•Rubinos•Magabilen•Trinidad•Ley bilen•Trinidad•Leyes•Givero•Travilla• es•Givero•Travilla•Elman•Paras•Tinapa Elman•Paras•Tinapay•Orcullo•Macla•La y•Orcullo•Macla•Ladeza deza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
What happened in that case was that there were 3 accused, apparently colored people, who were suspiciously facing a business establishment, according to the police officer who arrested them. The business establishment was a jewelry store. They were acting suspiciously, so the police officer stopped and frisked them for the presence of concealed deadly weapon which they may use to harm the police officer while effecting the search. And, eventually they were arrested. When they were convicted by the state court of Ohio, they appealed to the SC, which affirmed the decision. The SC said that there was no search in the ordinary course of search and seizure. There was only a stopping and frisking of the person and incidentally the concealed weapon or contraband was discovered upon such. This is where a police officer is given ample latitude based on his experience on a possible crime activity on going and therefore the rule allows him to stop the person and frisk him for the purpose . First, the general purpose is based on crime prevention. Because of his (police officer) experience, he may have thought that there is an on going criminal activity but he is not sure of it, thus, he is given the right to stop and frisk that person. Second, this was for him to be safe while safe while he is still determining whether or not there is indeed an ongoing criminal activity. In such a case, he is allowed to search that person for concealment of weapon that the person may use to commit violence. That characterization however is based on several factors. The most important is the appropriateness of circumstances.
the
In this case of POSADAS Y ZAMORA vs CA (G.R. CA (G.R. No. 89139), an old case originally decided in Davao, the landmark case of TERRY vs. OHIO was applied. This is the circumstance that happened on the height of the “Sparrow unit” of the CPP- NPA. The persons (involved) while walking, apparently innocent, and bringing with them market baskets or “buri bags,” were approached by police officers. They attempted to run but they were eventually accosted. The bags turned out to contain deadly weapons and ammunitions. So, based on the circumstances, the search would be allowable. The local judge here applied the TERRY vs. OHIO ruling. G.R. No. 89139 August 2, 1990 ROMEO POSADAS y ZAMORA, vs.
40
THE HONORABLE COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES Pat. Ursicio Ungab and Pat. Umbra Umpar were conducting a surveillance along Magallanes Street, Davao City. While they were within the premises of the Rizal Memorial Colleges they spotted petitioner carrying a "buri" bag and they noticed him to be acting suspiciously. They approached the petitioner and identified themselves as members of the PNP. Petitioner attempted to flee but his attempt to get away was thwarted by the two notwithstanding his resistance. They then checked the "buri" bag of the petitioner where they found one (1) caliber .38 Smith & Wesson revolver with two (2) rounds of live ammunition for a .38 caliber gun, a smoke (tear gas) grenade, and two (2) live ammunitions for a .22 caliber gun. Then, they brought the petitioner to the police station for further investigation. In the course of the same, the petitioner was asked to show the necessary license or authority to possess firearms and ammunitions found in his possession but he failed to do so. He was then taken to the Davao Metrodiscom office and the prohibited articles recovered from him were indorsed to M/Sgt. Didoy the officer then on duty. He was prosecuted for illegal possession of firearms and ammunitions. RULING Clearly, the search in the case at bar can be sustained under the exceptions. There are many instances where a warrant and seizure can be effected without necessarily being preceded by an arrest, foremost of which is the "stop and search" without a search warrant at military or police checkpoints, the constitutionality or validity of which has been upheld by this Court in Valmonte vs. de Villa. It was held in said case that “[n]ot all searches and seizures are prohibited. Those which are reasonable are not forbidden. A reasonable search is not to be determined by any fixed formula but is to be resolved according to the facts of each case.” Where, for example, the officer merely draws aside the curtain of a vacant vehicle which is parked on the public fair grounds, or simply looks into a vehicle or flashes a light therein, these do not constitute unreasonable search. The setting up of the questioned checkpoints in Valenzuela (and probably in other areas) may be considered as a security measure to enable the NCRDC to pursue its mission of establishing effective territorial defense and maintaining peace and order for the benefit of the public. Checkpoints may also be regarded as measures to thwart plots to destabilize the government in the interest of public security. In this connection, the Court may take judicial notice of the shift to urban centers and their suburbs of the insurgency movement, so clearly reflected in the increased killings in cities of police and military men by NPA "sparrow units," not to mention the abundance of unlicensed firearms and the alarming rise in
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pe •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Panga ndatun•Pinoon•Go•Pangandaman• ndaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Maga •Dumagan•Limbo-Cabuhat •Belen•Rubinos•Magabilen•Trinidad•Ley bilen•Trinidad•Leyes•Givero•Travilla• es•Givero•Travilla•Elman•Paras•Tinapa Elman•Paras•Tinapay•Orcullo•Macla•La y•Orcullo•Macla•Ladeza deza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
lawlessness and violence in such urban centers, not all of which are reported in media, most likely brought about by deteriorating economic conditions — which all sum up to what one can rightly consider, at the very least, as abnormal times. Between the inherent right of the state to protect its existence and promote public welfare and an individual's right against a warrantless search which is however reasonably conducted, the former should prevail. True, the manning of checkpoints by the military is susceptible of abuse by the men in uniform in the same manner that all governmental power is susceptible of abuse. But, at the cost of occasional inconvenience, discomfort and even irritation to the citizen, the checkpoints during these abnormal times, when conducted within reasonable limits, are part of the price we pay for an orderly society and a peaceful community” Thus, as between a warrantless search and seizure conducted at military or police checkpoints and the search thereat in the case at bar, there is no question that, indeed, the latter is more reasonable considering that unlike in the former, it was effected on the basis of a probable cause. The probable cause in this case was that when the petitioner acted suspiciously and attempted to flee with the buri bag, there was a probable cause that he was concealing something illegal in the bag and it was the right and duty of the police officers to inspect the same. It is too much indeed to require the police officers to search the bag in the possession of the petitioner only after they shall have obtained a search warrant for the purpose. Such an exercise may prove to be useless, futile and much too late. The Court reproduces with approval the following disquisition of the Solicitor General: The assailed search and seizure may still be justified as akin to a "stop and frisk" situation whose object is either to determine the identity of a suspicious individual or to maintain the status quo momentarily while the police officer seeks to obtain more information. This is illustrated in the case of Terry vs. Ohio, 392 U.S. 1 (1968). In this case, two men repeatedly walked past a store window and returned to a spot where they apparently conferred with a third man. This aroused the suspicion of a police officer. To the experienced officer, the behaviour of the men indicated that they were sizing up the store for an armed robbery. When the police officer approached the men and asked them for their names, they mumbled a reply. Whereupon, the officer grabbed one of them, spun him around and frisked him. Finding a concealed weapon in one, he did the same to the other two and found another weapon. In the prosecution for the offense of carrying a concealed weapon, the defense of illegal search and seizure was put up. The United States Supreme Court held that "a police officer may in appropriate circumstances and in an appropriate manner approach
41
a person for the purpose of investigating possible criminal behaviour even though there is no probable cause to make an arrest." In such a situation, it is reasonable for an officer rather than simply to shrug his shoulder and allow a crime to occur, to stop a suspicious individual briefly in order to determine his identity or maintain the status quo while obtaining more information. . . .”
Meanwhile, in the case of ESQUILLO vs. PEOPLE, G.R. No. 182010, the police officer was sent on a mission to make surveillance on an activity of an alleged pickpocket. When he reached the area, he chanced upon petitioner Susan Equillo, standing and apparently placing what appears to be a small sachet inside a false bottom of a lighter. Since the police officer, based on his experience, had knowledge that drugs are contained in such sachets, he went to the appellant and introduced himself as a police officer. The woman started to run but she was eventually caught up. When the officer inspected the lighter, it turned out to be shabu. So the question there was whether there was a valid arrest and seizure upon search and frisk. The SC made it fall under the STOP and FRISK SITUATION because there was no intention really to arrest that person or any intention to search the appellant. The police officer was there for different reason. But because of his experience, he noticed that the woman was acting suspiciously, for which reason the seizure was considered valid under the STOP and FRISK. ESQUILLO vs PEOPLE G.R. No. 182010 On the basis of an informant’s tip, PO1 Cruzin, together with PO2 Angel Aguas (PO2 Aguas), proceeded to Pasay City to conduct surveillance on the activities of an alleged notorious snatcher operating in the area known only as “Ryan.” As PO1 Cruzin alighted from the private vehicle that brought him and PO2 Aguas to the target area, he glanced in the direction of petitioner who was standing three meters away and seen placing inside a yellow cigarette case what appeared to be a small heatsealed transparent plastic sachet containing white substance. While PO1 Cruz was not sure what the plastic sachet contained, he became suspicious when petitioner started acting strangely as he began to approach her. He then introduced himself as a police officer to petitioner and inquired about the plastic sachet she was placing inside her cigarette case. Instead of replying, however, petitioner attempted to flee to her house nearby but was timely restrained by PO1 Cruzin who then requested her to take out the transparent plastic sachet from the
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
cigarette case. After apprising petitioner of her constitutional rights, PO1 Cruzin confiscated the plastic sachet on which he marked her initials “SRE.” A case was filed against her. In her present petition, petitioner assails the appellate court’s application of the “stop-and-frisk” principle in light of PO1 Cruzin’s failure to justify his suspicion that a crime was being committed, he having merely noticed her placing something inside a cigarette case which could hardly be deemed suspicious. To petitioner, such legal principle could only be invoked if there were overt acts constituting unusual conduct that would arouse the suspicion. circumstances leading to petitioner’s arrest. RULING Appellant’s conviction stands. Elucidating on what includes “stopand-frisk” operation and how it is to be carried out, the Court in People v. Chua held: . . . the act of a police officer to stop a citizen on the street, interrogate him, and pat him for weapon(s) or contraband. The police officer should properly introduce himself and make initial inquiries, approach and restrain a person who manifests unusual and suspicious conduct, in order to check the latter’s outer clothing for possibly concealed weapons. The apprehending police officer must have a genuine reason, in accordance with the police officer’s experience and the surrounding conditions, to warrant the belief that the person to be held has weapons (or contraband) concealed about him. It should therefore be emphasized that a search and seizure should precede the arrest for this principle to apply. This principle of “stop-and-frisk” search was invoked by the Court in Manalili v. Court of Appeals. In said case, the policemen chanced upon the accused who had reddish eyes, walking in a swaying manner, and who appeared to be high on drugs. Thus, we upheld the validity of the search as akin to a “stop-and-frisk.” In People v. Solayao, we also found justifiable reason to “stop-andfrisk” the accused after considering the following circumstances: the drunken actuations of the accused and his companions, the fact that his companions fled when they saw the policemen, and the fact that the peace officers were precisely on an intelligence mission to verify reports that armed persons w[h]ere roaming the vicinity. (emphasis and underscoring supplied; citations omitted) xxx What is, therefore, essential is that a genuine reason must exist, in light of the police officer’s experience and surrounding conditions, to warrant the belief that the person who manifests unusual suspicious conduct has weapons or contraband concealed about him. Such a “stop-and-frisk” practice serves a dual purpose: (1) the general interest of effective crime prevention and detection, which underlies the recognition that a police officer may, under appropriate circumstances and in an appropriate manner, approach a person for purposes of investigating possible criminal behavior even without probable cause; and (2) the more pressing
42
interest of safety and self-preservation which permit the police officer to take steps to assure himself that the person with whom he deals is not armed with a deadly weapon that could unexpectedly and fatally be used against the police officer. From these standards, the Court finds that the questioned act of the police officers constituted a valid “stop-and-frisk” operation. The search/seizure of the suspected shabu initially noticed in petitioner’s possession - later voluntarily exhibited to the police operative - was undertaken after she was interrogated on what she placed inside a cigarette case, and after PO1 Cruzin introduced himself to petitioner as a police officer. And, at the time of her arrest, petitioner was exhibiting suspicious behavior and in fact attempted to flee after the police officer had identified himself.
This case should be differentiated from the case of PEOPLE vs. MENGOTE. This case was still based on informant’s tip. The police station received a phone call that there was a man acting suspiciously in the corner of 2 streets because there was something on his waistline. So, the police officer went to that place and saw that man based on the description and jumped on him and found in his possession unlicensed firearms. So he was charged accordingly. The question thus is whether it was a valid stop-andfrisk situation. The SC said NO because the circumstance was not appropriate. The facts of the case will show that this happened around noon time in the corner of two busy streets and that the person was not the only person there because again, these are two busy streets. The SC said there was nothing suspicious with a man holding his tummy; it might be that he was just experiencing something that requires him to touch his stomach.
G.R. No. 87059 June 22, 1992 THE PEOPLE OF THE PHILIPPINES vs. ROGELIO MENGOTE There is no question that evidence obtained as a result of an illegal search or seizure is inadmissible in any proceeding for any purpose. That is the absolute prohibition of Article III, Section 3(2), of the Constitution. This is the celebrated exclusionary rule based on the justification given by Judge Learned Hand that "only in case the prosecution, which itself controls the seizing officials, knows that it cannot profit by their wrong will the wrong be repressed." The Solicitor General, while conceding the rule, maintains that it is not applicable in the case at bar. His reason is that the arrest and search of Mengote and the seizure of the revolver from him were
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
lawful under Rule 113, Section 5, of the Rules of Court reading as follows:XXX In cases failing under paragraphs (a) and (b) hereof, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail, and he shall be proceeded against in accordance with Rule 112, Section 7. We have carefully examined the wording of this Rule and cannot see how we can agree with the prosecution. Par. (c) of Section 5 is obviously inapplicable as Mengote was not an escapee from a penal institution when he was arrested. We therefore confine ourselves to determining the lawfulness of his arrest under either Par. (a) or Par. (b) of this section. Par. (a) requires that the person be arrested (1) after he has committed or while he is actually committing or is at least attempting to commit an offense, (2) in the presence of the arresting officer. These requirements have not been established in the case at bar. At the time of the arrest in question, the accused-appellant was merely "looking from side to side" and "holding his abdomen," according to the arresting officers themselves. There was apparently no offense that had just been committed or was being actually committed or at least being attempted by Mengote in their presence. The Solicitor General submits that the actual existence of an offense was not necessary as long as Mengote's acts "created a reasonable suspicion on the part of the arresting officers and induced in them the belief that an offense had been committed and that the accused-appellant had committed it." The question is, what offense? What offense could possibly have been suggested by a person "looking from side to side" and "holding his abdomen" and in a place not exactly forsaken? These are certainly not sinister acts. And the setting of the arrest made them less so, if at all. It might have been different if Mengote had been apprehended at an ungodly hour and in a place where he had no reason to be, like a darkened alley at 3 o'clock in the morning. But he was arrested at 11:30 in the morning and in a crowded street shortly after alighting from a passenger jeep with his companion. He was not skulking in the shadows but walking in the clear light of day. There was nothing clandestine about his being on that street at that busy hour in the blaze of the noonday sun. On the other hand, there could have been a number of reasons, all of them innocent, why his eyes were darting from side to side and he was holding his abdomen. If they excited suspicion in the minds of the arresting officers, as the prosecution suggests, it has nevertheless not been shown what their suspicion was all about. In fact, the policemen themselves testified that they were dispatched to that place only because of the telephone call from the informer that there were "suspicious-looking" persons in that vicinity who were about to commit a robbery at North Bay
43
Boulevard. The caller did not explain why he thought the men looked suspicious nor did he elaborate on the impending crime.
Again, the STOP and FRISK is based on the appropriateness of the situation. So the appropriateness of the circumstance would define whether or not the STOP and FRISK situation should be a ground for warrantless situation. D. EXPRESS WAIVER
There are several matters to remember on EXPRESS WAIVER. First, the waiver must have to be express. It cannot be considered a waiver therefore if there is a failure of the person to whom the right pertains to object or to refuse, or to avoid the search of his person because most often than not, the failure to object expressly is supposed to be based on one’s fear or perhaps, one’s respect from authority, and not because he actually allows the search to be conducted. Second, it must be given by the person to whom the right pertains. In this case of PEOPLE vs. NUEVAS , that was the principle laid down by the Court. It must be given by the person to whom the right pertains. That is why in some cases, there are instances on the question on “to whom the right pertains?” For example, in a lease room in a boarding house, who has the right to grant consent? Is it the landlord/lady or the lessee of the room? What is the object of the lease? Is the object turn over ownership or only possession to lessee? Even if there is consent, the search must have to be conducted in relation or within the terms of the consent. No problem if the consent is general, “okay you can search the house etc...”, then there is no limitation as to the scope of the search to be conducted. PEOPLE VS. NUEVAS Police officers Fami and Cabling, during a stationary surveillance and monitoring of illegal drug trafficking in Olongapo City, came across Jesus Nuevas, who they suspected to be carrying drugs. Upon inquiry, Nuevas showed them a plastic bag which contained marijuana leaves and bricks wrapped in a blue cloth. He then informed the officers of 2 other persons who would be making marijuana deliveries. The police officers then proceeded where Nuevas said his associates, Reynaldo Din and Fernando Inocencio, could be located. Din was carrying a plastic which contained marijuana packed in newspaper and wrapped therein. When the police
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
officers introduced themselves, Din voluntarily handed the plastic bag over them. After the items were confiscated, the police officers took the three men to the police office.
Thus, the search is to be conducted only in the place where it is reasonably expected that a person would hide.
Police officer Fami then revealed that when the receipt of the evidence was prepared, all 3 accused were not represented by counsel. He likewise disclosed that he was the one who escorted all the accused during their physical e xamination. He also escorted all 3 to the fiscal’s office where they were informed of the charges against them.
Based on the facts of the case, however, they found the supposed documents, firearms, and ammunitions in the places where it cannot be reasonably expected to a person to be hiding, that is, in the drawer and small cabinet where no human can fit. The SC said that the search was INVALID.
The 3 were found guilty by the trial court, and the case was automatically elevated to the CA for review. However, Nuevas withdrew his appeal. Thus, the case was considered closed and terminated as to him. The CA affirmed the trial court. Issue Whether or not Din and Inocencio waived their right against unreasonable searches and seizures? Held No. The search conducted in Nuevas’ case was made with his consent. However, in Din’s case there was none. There is a reason to believe that Nuevas indeed willingly submitted the plastic bag with the incriminating contents to the police officers. It can be seen that in his desperate attempt to exculpate himself from any criminal liability, he cooperated with the police, gave them the plastic bag, and even revealed his associates, offering himself as an informant. His actuations were consistent with the lamentable human inclination to find excuses, blame others, and save oneself even at the cost of others’ lives. Thus, the Court would have affirmed Nuevas’ conviction had he not withdrawn his appeal. On the other hand, with respect to the search conducted in the case of Din, the Court finds that no such consent had actually been given. The police officers gave inconsistent, dissimilar testimonies regarding the manner by which they got hold of the plastic bag. Neither can Din’s silence at the time be construed as implied acquiescence to the warrantless search. Thus, the prosecution failed to clearly show that Din intentionally surrendered his right against unreasonable searches. As to Inocencio’s case, his supposed possession of the dried marijuana leaves was sought to be shown through his act of looking into the plastic bag that Din was carrying. The act attributed to Inocencio is insufficient to establish illegal possession of the drugs or even conspiracy to illegally possess the same. The prosecution failed to show by convincing proof that Inocencio knew of the contents of the bag and that he conspired with Din to possess the illegal items.
But in one case, that case of VEROY vs. LAYAGUE, the consent there to conduct a search was allowed [but only for the purpose of ] searching the house for the presence of rebel soldiers. So these are people supposedly hiding in the residential building.
44
VEROY VS. LAYAGUE (210 SCRA 92) Petitioners are husband and wife who owned and formerly resided at Skyline, Davao City. In June 1988, they transferred to Quezon City where they are presently residing. The care and upkeep of their residence was left to two (2) houseboys. The key to the master's bedroom as well as the keys to the children's rooms were retained by petitioners. On April 12, 1990, Capt. Obrero, raided the house of herein petitioners in Davao City on information that the said residence was being used as a safehouse of rebel soldiers. They were able to enter the yard with the help of the caretakers but did not enter the house since the owner was not present and they did not have a search warrant. Petitioner Ma. Luisa was contacted by telephone to ask permission to search the house. Ma. Luisa Veroy responded that she is flying to Davao City to witness the search but relented if the search would not be conducted in the presence of Major Ernesto Macasaet. The authority given by Ma. Luisa Veroy was relayed by Capt. Obrero to Major Macasaet who answered that Ma. Luisa Veroy has called him twice by telephone on the matter and that the permission was given on the condition that the search be conducted in his presence. The following day, Capt. Obrero and Major Macasaet conducted the search pursuant to the authority granted by petitioner Ma. Luisa Veroy. The caretakers facilitated their entry into the yard, and using the key entrusted to Edna Soguilon, they were able to gain entrance into the kitchen. A locksmith, Badiang, had to be employed to open the padlock of the door leading to the children's room. Capt. Obrero and Major Macasaet then entered the children's room and conducted the search. Capt. Obrero recovered handgun, printed materials, etc. Issue Whether the articles were inadmissible as evidence for being violative of the prohibition against unreasonable searches and seizures? Held Yes. Petitioners aver that while they concede that Capt. Obrero had permission from Ma. Luisa Veroy to break open the door of their residence, it was merely for the purpose of ascertaining
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
thereat the presence of the alleged "rebel" soldiers. The permission did not include any authority to conduct a room to room search once inside the house. The Constitution guarantees the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures. However, the rule that searches and seizures must be supported by a valid warrant is not an absolute one. Among the recognized exceptions thereto are: (1) (2) (3)
E. VIOLATION OF CUSTOM AND TARIFF LAWS
These searches are allowed because of the difference in effecting searches therein. In this kind of search, however, there must have to be a prohibition that these searches are limited to the warehouses as well as any modes of transport .
A search incidental to an arrest; A search of a moving vehicle; and Seizure of evidence in plain view.
None of these exceptions pertains to the case at bar. The reason for searching the house of herein petitioners is that it was reportedly being used as a hideout and recruitment center for rebel soldiers. While Capt. Obrero was able to enter the compound, he did not enter the house because he did not have a search warrant and the owners were not present. This shows that he himself recognized the need for a search warrant, hence, he did not persist in entering the house but rather contacted the Veroys to seek permission to enter the same. Permission was indeed granted by Ma. Luisa Veroy to enter the house but only to ascertain the presence of rebel soldiers. Under the circumstances it is undeniable that the police officers had ample time to procure a search warrant but did not. Undeniably, the offense of illegal possession of firearms is malum prohibitum but it does not follow that the subject thereof is necessarily illegal per se. Motive is immaterial in mala prohibita but the subjects of this kind of offense may not be summarily seized simply because they are prohibited. A search warrant is still necessary. Hence, the rule having been violated and no exception being applicable, the articles seized were confiscated illegally and are therefore protected by the exclusionary principle. They cannot be used as evidence against the petitioners in the criminal action against them for illegal possession of firearms. Besides, assuming that there was indeed a search warrant, still in mala prohibita, while there is no need of criminal intent, there must be knowledge that the same existed. Without the knowledge or voluntariness there is no crime. The criminal case against the petitioners for illegal possession of firearms is DISMISSED.
45
Second, it must have to be given by the person whose right pertains and the search must have to be conducted in relation to the consent given.
As such, these searches cannot extend to residential units or dwelling. Thus, if the search is to be conducted in residential units or dwelling places there must have to be a search warrant duly applied for and secured from the judge. Now, in your outline, there are instances not covered by the six general instances. It is not covered because they have not reached the status of the six in the discussion. They have just been laid lately because of the jurisprudence of the SC. They are as follows: F. EXIGENT CIRCUMSTANCES
Again based on our discussion on hierarchy of rights, in cases of emergency, the right against unreasonable searches and seizure can be regulated and even be violated in some extent because of the nature of exigency. So in cases of EXIGENCY, where the organized state or government is at stake, then there can be so called allowance for unwarranted searches and seizure. In airports, because of the 9/11 incident, we have seen the increase of airport security. While there is no compulsion for you to undergo this checks as part of airport security, if you don’t want your personal right to be violated, you cannot compel the airport personnel or management to allow you to take a flight without going through the security control of these aircrafts.
SO, the waiver must have to be express and not implied. Failure to object is not considered an express waiver.
G. JAIL SAFETY
In sum, express waiver requires an understanding of the right of that person for unreasonable searches and seizure, and full understanding of the effect of waiving or granting consent to the search.
In the case of PEOPLE vs. CONDE , the SC made mention that when you are (inmate) incarcerated, there is a diminished right to privacy of the inmate. That is why many matter or things delivered by a relative can be searched. As such, if you delivered
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
a cake, the guard can slice it without violation because the right to privacy is diminished because you are supposed to be incarcerated. It is based on the protection of STATE INTEREST .
CIVIL ACTION for DAMAGES
REMEDIES
The 2nd remedy is civil action for damages under Article 32 of the CC. This refers to violation of civil liberties including the rights against unreasonable searches and seizure. You can claim damages under CIVIL LAW.
The following are the remedies in case of violations:
In fact, not only the person conducting the search and seizure, but also the officials who ordered the same under the concept of RESPONDEAT SUPERIOR .
EXCLUSIONARY RULE
This is the constitutional provision protecting the right of the people against unreasonable searches and seizure. All evidence obtained in violation of the right against unreasonable searches and seizure shall be inadmissible. H owever this RIGHT MUST HAVE TO BE CLAIMED. Normally it could be claimed when the object evidence is being offered. Under the rules on evidence, oral testimony is offered upon presentation of the witness or his own testimony while objects or other documents are offered after the presentation of the oral testimonies of the witnesses. So, it is usually around that time when there is a formal offer of documentary evidence that the EXCLUSIONARY RULE is claimed by objecting to the offer of the prosecution.
CRIMINAL VIOLATIONS
Also these 3 Articles in the RPC are considered as remedies: 1. ART 128 Violation of domicile. 2.
ART 129 -
Search warrants maliciously obtained and abuse in the service of those legally obtained.
3.
ART 130 -
Searching domicile without witnesses .
These crimes carry the penalty from the range of arresto mayor maximum to prision correccional minimum.
MOTION to QUASH
There is also another procedure by which you could seek a ruling on the admissibility and this is to file a motion to quash the information.
So, you can claim these protections, SIMULTANEOUSLY. They are not exclusive.
The motion to quash the information is usually filed in the court where the case is pending. It is provided for in your Rule 116, Rules of Court. in such a case, the court will have to determine whether the evidence is inadmissible. The motion to quash is filed normally before the start of the trial and not during the trial after the presentation of the prosecution of its evidence.
COMMON INSTANCES
LIMINE
There is also what have been allowed (at least in local practice but not in the rules of court) the so-called LIMINE. This is a pre trial proceeding where the accused would ask the court before trial for [a] determination whether [an evidence] should be excluded.
46
The damages would range from the actual damages based on actual injuries suffered due to loss or destruction of property. It could also be moral damages for the moral suffering.
In warrantless arrests, there are also six common instances in warrantless searches. It is provided in Section 5, Rule 113 of Rules of Court: First , the inflagrante delicto case, Second , when the offense has just been committed and that the person arresting has personal knowledge of the facts that the person to be arrested has committed it. Third , when the person to be arrested has escaped from detention facility whether serving prior sentence or pending trial. The 3 more are provided for in different provisions: Under Section 24, Rule 114, Rules of Court:
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
1.
If a person is arrested by bonds person, the bonds person need not be armed by a warrant; or 2. If the accused attempts to leave the country, he can be arrested even without a warrant in order to prevent situation that he will be out the jurisdiction of the court.
But again, in hot pursuit situations, there must have to be NO APPRECIABLE BREAK in the sequence of events from the time of the commission in the pursuit until the arrest is made. That is the essence of hot pursuit, NO APPRECIABLE GAP.
The last instance is still under Rules of Court, Sec. 13, Rule 113: 1. The person legally arrested can be rearrested without warrant.
The reason there being that there is no reasonable opportunity to secure a warrant of arrest because if there is an appreciable gap from the time of commission to the pursuit until the arrest is made, then the police officer should have filed a case and should have secured a warrant before effecting the arrest.
So, a person who was legally arrested but has escaped before he was turned over to penal facility or has been rescued, then that person can be rearrested without warrant. So those are the 6 common instances of warrantless arrest. DISCUSSIONS
So the discussions here are on the first 2 instances. First, the in flagrante delicto case and second, where an offense has just been committed. Now, in the in flagrante delicto cases, a personal knowledge is required that there has been a commission of an offense because the offense here is being committed, has just been committed, is about to be committed, is being committed, or has just been committed in the presence of the person arresting. So, the personal knowledge is upon the offense. It goes without saying that since it is in flagrante delicto, the identity goes there as well. But then again, the emphasis is on the offense because the offense must have been committed in the presence of the person arresting. Now, as to the second situation, there are two considerations: the phrase “that the offense has just been committed” and the 2nd phrase “personal knowledge of facts indicating to the person to be arrested has committed it.”
47
Now, as to “personal knowledge of facts indicating that the person to be arrested has committed,” that is where most of the discussion are also had. This is because the question would be whose knowledge is supposed to be considered ? Is it the knowledge of the witnesses as relayed to the arresting officer ? The rule is quite clear that it must be the personal knowledge of the person making the arrest. But when the person making the arrest was not there when the offense is committed, it is hardly expected that all the knowledge or perspective of the witnesses would be based on their own perceptions. There are some which will come from the testimony or information of eyewitness. But what is important is that these information or testimony coming from the witnesses must have been coupled with the evidence they have found in the scene of the crime and therefore their perception would become personal to them, making this as knowledge personal through them. If the information as to the identity is based mainly on what the informant or witnesses have relayed to them and it is not coupled with what they have discovered personally in the scene of the crime, then there is no satisfaction of the requirement. They must have personally knowledge of the fact indicating the identity of the person to be arrested.
Now, in the phrase “that the offense has just been committed.” the safest rule, I think, is less than 24 hours.
In one case involving a fight where the two accused persons were picking woods and hollow blocks, crushing the skull of the victim resulting to his death.
There is a case 12 hours or 18 hours which are still within the phrase “that the offense has just been committed.” The only exception perhaps in some cases that it can go beyond 24 hours from the time of commission until the time of arrest would be those considered in “HOT PURSUIT” situations.
When the call for police investigation came, the police officer went to the hospital and there, they were able to see the condition of the victim, that is, there were pieces of wood and hollow block in his skull. Also, they went to the scene of the crime and they discovered that there was a wood and broken hollow
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
block soaked in blood. And, the identities of the persons were actually provided to them by the other persons.
Neither could the “arrest” effected 6 days after be reasonably regarded as effected “when the shooting had in fact just been committed.”
Thus, the officers eventually made the arrest within 12 hours and the SC said that it was valid based on Rule 113 section 5 paragraph B because the personal knowledge of the witness were also confirmed by the person who were in the scene of the crime upon their investigation.
Plus, none of the “arresting” officers had any “personal knowledge” of facts indicating that Go was the gunman. The police merely relied on the statements of an alleged eyewitness.
In the famous case of ROLITO GO vs. CA, while the name of the accused ROLITO GO was simply relayed to them, being the arresting officer, the arresting officer was able to determine his identity through the credit card receipt payment that the accused paid. His identity was also determined based on the car registration and therefore based on their investigation, there is a reasonable conclusion that the identity of the accused was not merely provided to them by the witness but they were also able to personally determine by their investigation that that is the identity of the person to be arrested.
STRICT ENFORCEMENT of the rule is the general rule for warrantless arrests because this is really a violation of one’s personal privacy.
ROLITO GO VS. COURT OF APPEALS On July 2, 1991, Eldon Maguan was allegedly shot to death by accused Rolito Go due to a traffic altercation when petitioner’s car and the victim’s car nearly bumped each other. The security guard of the Cravings Bake Shop saw the whole incident and pointed herein petitioner as the gunman, which he positively identified when questioned by the authorities. Being convinced of the suspect’s identity, the police launched a manhunt operation that caused petitioner to present himself before the San Juan Police Station to verify the said issue; he was then detained by the police.
Meaning, there must have to be adherence to the determination of probable cause if there is a warrant for the arrest or, if there is no warrant, they must have to follow strictly within the 6 allowable instances. TAKE NOTE: The exception to that would be arrest without warrant in relation to the Comprehensive Dangerous Drugs Law as well as the Illegal possession of firearms, ammunitions and explosives. The reason for that based on the SC decision is that there is difficulty in effecting arrest for people engaged by reason of secrecy attending the same. There is no such thing as business of selling drugs and firearms and the like as opposed to those ordinary goods or business. That is why there is a little leeway granted to state authorities if the warrants of arrest involve these.
Issue: Whether or not the warrantless arrest of herein petitioner was lawful Held No. The reliance of both petitioner and the Solicitor General upon Umil vs. Ramos is, in the circumstances of this case, misplaced.
CARCEDO, HARVEY LADEZA, ROEL PAGUICAN, JOSHUA PELONIO, AM
In Umil vs. Ramos, there was a valid warrantless arrest because the offense (subversion) constituted a “continuing crimes.” Here, the offense was murder, not a continuing crime. The warrantless “arrest” does not fall within the terms of Section 5 of Rule 113 of the 1985 Rules on Criminal Procedure. Go’s “arrest” took place 6 days after the shooting. The “arresting” officers obviously were not present at the time petitioner allegedly shot Maguan.
48
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
August 8, 2012 Rendition normally is not allowed under our Constitutional set-up because warrants of arrest are supposed to be issued only after the determination of probable cause in relation to the criminal offense. We have said earlier that in case of the president, in the exercise of his powers over foreign relations, he has the authority to issue a warrant for the arrest of an undesirable alien for his immediate deportation. That is a form of an administrative arrest. It is a long established exception to the rule that warrants of arrest can only be issued by the courts. Now the other form of administrative arrest would be the issuance of warrants of arrest on account of a refusal or disobedience to a subpoena. If it is issued by a court in relation to a court case, there might not be a difficulty of understanding that such warrant may be issued for disobeying the subpoena because that would constitute contempt of court. Nonetheless, in our system there are certain non-judicial bodies which have the power to issue subpoena where the refusal or disobedience would also result into a contemptuous act resulting into that body to issue a warrant for the arrest. That is also a form of an administrative arrest. So for example, Congress has the power to issue subpoena and while it is not based on any positive rule or express provision of law, but by reason of its mission that the National Legislature should have all the necessary authority to ensure that all its processes are made effective (just like the courts, in relation to its legislative functions specifically in its legislative investigations, its can issue warrants of arrest directing the arrest of persons for refusal to obey or follow the subpoena and that contempt power of the national legislature need not be exercised by the courts). That is again a form of an administrative arrest. The next item in your outline is PRIVACY OF COMMUNICATIONS
We have made mention already that this privacy of communications or privacy or the right to privacy is not actually a --- there is no direct provision in the constitution with respect to one’s right to privacy, at most is this Section 3, Article III – Privacy of Communications: Section 3. 1. The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or
49
2.
when public safety or order requires otherwise, as prescribed by law. Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.
This privacy of communications is just one of those provisions in the Constitution which relates to one’s right to privacy. One’s right to privacy, though not expressed in the Constitution is a known constitutional right. The provisions respecting unreasonable searches and seizures, or the provision on unreasonable arrest are examples of provisions in the Constitution that guarantees one’s right to privacy or the right to be left or let alone. So the State in the exercise of its powers cannot affect a right to privacy unless of course it is consistent with the general requirement of due process among others for a valid exercise of its police power. The right to privacy is something new as discussed in Philippine jurisprudence because again there is a dearth in the Constitution as to the expressed provision respecting one’s right to privacy. Nonetheless, there are several provisions in our Constitution which would pertain to one’s right to privacy. They are referred to as zones of privacy. Several provisions on the matter in the Civil Code, like Article 26: Article 26. Every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons. The following and similar acts, though they may not constitute a criminal offense, shall produce a cause of action for damages, prevention and other relief: (1) Prying into the privacy of another's residence; (2) Meddling with or disturbing the private life or family relations of another; (3) Intriguing to cause another to be alienated from his friends; (4) Vexing or humiliating another on account of his religious beliefs, lowly station in life, place of birth, physical defect, or other personal condition. and this may be a cause of action for damages if there is a violation. Also there is an act punishable (for torts) on account of
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
persons meddling or prying into the privacy of another that is under the same article 26; and Article 32 holds any public officer or employee or any private individual for damages for any violation of the rights and liberties of other persons. Under Article 723, which is a mirror of Article III, Sec. 3, the privacy of letters and other private communications are also covered. The Revised Penal Code has also several provisions with respect to rights to privacy under Art. 229 (violation of secrets), Art. 290-292 (revelation of trade and industrial secrets, trespass to dwelling). Invasion of privacy is also an offense under special law, R.A. 4200 the Anti-Wire Tapping Act. Also included are the old laws, R.A. 425 (the Secrecy of Bank Deposits) and R.A. 8293 (the Intellectual Property Code). The Rules of Court a lso recognize privilege communications and also pertain to privacy of certain information under the Rules on Evidence. There are information or matters which cannot be elicited in the ordinary course of testimony because they are considered privileged communication. The right to privacy is not new in American Jurisprudence because it has long been established. The right to privacy has been discussed in a lot of regulations which would include (it may be discussed today because of the RH Bill in the understanding that because of the information that the government is supposed to make available to the public so that they can make intelligent choices in terms of their reproductive health. The use of contraceptives is an issue which has long been decided in the US. In relation to the use of contraceptives amongst spouses, it has long been decided that this has been considered a situation to one’s privacy because the use of contraceptives in the bedroom is beyond the authority or powers of the court to inquire. What happens in the bedroom supposedly would be left to the discretion of these people which the State has no right to intervene. So in that old case involving the use of contraceptives which would prevent the use of contraceptives in certain situations, the court said it could not be allowed as a regulatory measure because that involves one’s right to privacy.) In another case, there was a case involving a regulation on the availability of contraceptives to minors – meaning below 18. The age ranges from 16 to 18, meaning these people are already capable of reproduction or reproducing children. The law in the US has disallowed to make these contraceptives available to minors. SC also struck down the provision of that law because the use of contraceptives is actually in relation to one’s right to privacy. You don’t actually announce it publicly… you have heard
50
of the joke that there was this man, because of the unavailability of these kinds of information or education in Philippine society, Filipinos would normally have a hard time dealing with these things, words or phrases. So there was this one man who was to buy a condom and so he told the pharmacist, the sales lady in the pharmacy: “Miss, condom Miss” in a very low tone and voice as if… and the sales lady said “Saiz Sir” and then he said again “Miss, condom Miss”. Lady: “Saiz lagi Sir”, Man: “Small Miss”, Lady: “Tag Saiz Pisos Sir ba, Sa-iz”. ☺ By the way, do they come in sizes? I’ve heard they come in different flavors? ☺ This also led to the controversial decision in that American decision in Roe vs. Wade. Abortion or the right to have an abortion has long been decided by the US Supreme Court in this case where in the first trimester it is allowed and there is no limitation or regulation allowed by the State. In the second trimester, there is a little regulation; in the third trimester, State has the right to regulate abortion except for medical reasons. So that is something which is not an issue about anything else but more on the right of the mother to be let and left alone in her decision whether she would want to have a child. Again this is in relation to her right to privacy, to be left her the decision whether she would want a child. Now, in the Constitution, this right to privacy under Sec. 3, Article III was included for the first time in the 1935 Constitution and the prevailing rule from which this was copied from (American rule) was that the right to privacy is extended only to tangible objects (Tangibles Only Rule) and there must be a trespass. Now in the privacy of communication and correspondence, if there is no trespass, there is no applicability of the right (to privacy in relation to the search and seizure clause). That’s why it has to be extended. The search and seizure clause in the American experience at the time this provision was included in 1935 Constitution was that for the search and seizure clause to apply, there must have to be an actual trespass and what is sought to be seized are tangible items. Now letters of communication are not tangible if they are electronically transmitted and normally if there is such electronic seizure of this communication, there is no actual trespass. So to extend that to communications and correspondence they can include this provision in ’35, which was copied until the present Constitution. The term communications here is used in its general sense. But what is actually covered by this privacy of communications is communications between a government official and a private citizen, and the communications between private citizens which cannot be violated by the State. So the question is, what about
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
the communications between government officials? Are these communications covered by this prohibition? Because again the general concept is that the Bill of rights is a limitation to State authority. So it is a clash between the right of the State to exercise its powers and the right of its citizens to claim their rights and privileges. But what if the communications are between public officers like the Hello Garci scandal? President talking to the Commissioner of the Comelec, can that communication be intercepted and recorded with the use of government facility? That has not been answered but if you try to look at this provision in relation to the general concept of the Bill of rights, only communications between the individuals or government officials and individuals are generally covered by this provision. Please don’t forget the case of ZULUETA vs. CA because that’s a peculiar decision. Peculiar in the sense that they have applied this provision when the claim is between private individuals. That is no encroachment or alleged violation coming from the State. It is a case between husband and the wife over the supposed letters which were sent by the paramour to the husband and which were unlawfully taken from the private office of the husband and introduced as evidence in the same case. So the SC in that case applied this provision saying that generally when two persons contract marriage they do not actually surrender all the rights to privacy. That is a limitation of what is being surrendered. For obvious reasons the most common of what is to be surrendered are known to you, all the rest… and so when the wife unlawfully entered the private office of the husband and unlawfully or forcibly opened the cabinet where these letters, documents and pictures were found, the SC said they are inadmissible under the second paragraph of this Sec. 3. And it has not been applied since then probably because there has been no case filed with the same set of facts or husbands had become, since they have already known the decision, had become more….. Okay.
Issue: Whether or not the constitutional injunction declaring that “the privacy of communication and correspondence to be inviolable” apply even to the spouse of the aggrieved party. Held: The documents and papers are inadmissible in evidence. The constitutional injunction declaring “the privacy of communication and correspondence [to be] inviolable” is no less applicable simply because it is the wife (who thinks herself aggrieved by her husband’s infidelity) who is the party against whom the constitutional provision is to be enforced. The only exception to the prohibition in the Constitution is if there is a “lawful order [from a] court or when public safety or order requires otherwise, as prescribed by law.” Any violation of this provision renders the evidence obtained inadmissible “for any purpose in any proceeding.” The intimacies between husband and wife do not justify any one of them in breaking the drawers and cabinets of the other and in ransacking them for any telltale evidence of marital infidelity. A person, by contracting marriage, does not shed his/her integrity or his right to privacy as an individual and the constitutional protection is ever available to him or to her. The law insures absolute freedom of communication between the spouses by making it privileged. Neither husband nor wife may testify for or against the other without the consent of the affected spouse while the marriage subsists. Neither may be examined without the consent of the other as to any communication received in confidence by one from the other during the marriage, save for specified exceptions. But one thing is freedom of communication; quite another is a compulsion for each one to share what one knows with the other. And this has nothing to do with the duty of fidelity that each owes to the other. Hence, the petition for review is DENIED.
ZULUETA vs. CA G.R. No. 107383 ; Feb. 20, 1996 Facts: Cecilia Zulueta is the wife of Dr. Alfredo Martin. On 26 March 1982, Zulueta entered the clinic of her husband, a doctor of medicine, and in the presence of her mother, a driver and Martin’s secretary, forcibly opened the drawers and cabinet in her husband’s clinic and took 157 documents consisting of private correspondence between Dr. Martin and his alleged paramours, greetings cards, cancelled checks, diaries, Dr. Martin’s passport, and photographs. The documents and papers were seized for use in evidence in a case for legal separation and for disqualification from the practice of medicine which Zulueta had filed against her husband. Dr. Martin brought the action for recovery of the documents and papers and for damages against Zulueta with the RTC. After trial,
51
the trial court rendered judgment for Martin. It (1) declared that the documents and papers are properties of Dr. Martin, (2) ordered Zulueta to return them and (3) enjoined her from using them in evidence. On appeal, the Court of Appeals affirmed the decision of the Regional Trial Court. Hence, Zulueta filed this petition for review with the Supreme Court.
The usual law in point with respect to privacy of communications violation is R.A. 4200, the Anti-Wire Tapping Act. Now that law basically allows wiretapping for reporting purposes for presentation as evidence thereafter, provided, there is compliance with the requirements for getting the warrant. The warrant application is just like the search warrant application only that what is sought to be seized here is the communication between two private individuals, which may be used by the state for filing a case against them. This law however has been outdated so to speak because at the time this law was enacted, the
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
usual modes of communication, though covered by RA 4200, did not anticipate the forms of communication today. The age of technology where mobile phones are already here or the so called equipment which can be used for surveillance and eventual recording by intercepting the electronic messages have not also been envisioned in the Anti-Wire Tapping Act. The law as the title suggests would require that there is an actual cutting of the line, i.e. tapping it and tapping it for listening AND recording because if it is only for listening, there is no violation. Violation eventually would have to result from the recorded communication which is eventually presented to the court where there was no warrant previously secured. This is supposed to have been amended on account of the Committee Report hearing of the Hello Garci scandal. But you know, Congress(men) are only good at that during investigations because of the free media publicity that they get. And they don’t push with the recommendations of the Committee that there should be an amendment to RA 4200 to cover present day situation. Just like in your law on libel... Is libel in the internet, do the defamatory statements or comments in the internet constitute libel? That has been questioned always because if you try to look at the law on libel, the publication is supposed to be in any of those modes or means. And when this law was enacted in the 1930’s or 50’s, internet was never imagined yet. The latest case which has been dismissed I think was that.... I don’t know... here in Davao there was a case that’s been filed against Aportadera, which the prosecutor found probable cause. [EDITOR’S NOTE: Congress has recently passed RA 10175 or the Cybercrime Prevention Law. This lecture was delivered prior to the passage of said Act. See for example Sec. 4(c) (4): xxx Libel. — The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code, as amended, committed through a computer system or any other similar means which may be devised in the future.] In libel there are several aspects to consider like 1. Where was the publication made; 2. Where was the publication first made or where was it first read; 3. The person defamed is a public officer or private person, there are considerations for purposes of jurisdiction When you post a defamatory statement on Facebook, is that particular medium included in the definition of libel where the
52
defamatory statement is supposed to be found? Ok. Now the intrusion as allowed will only be upon lawful order of the court based on the Constitution. And even without lawful order of the court, if public order or safety requires there can be an intrusion into one’s right to privacy of communications. Now the intrusion must have to be issued by an Executive Order. So if it is a Court order, no problem. If there is no court order, it can be by executive order, provided, there is still public order or safety requirement. So for example, the public order or safety is at stake where human lives, property, and liberty are at stake then the executive can order intrusion into one’s right to privacy of communications. In relation to this privacy of communications by executive order where there can be proper intrusion provided public order or safety requirement would be your SC Resolution on the Writ of Habeas Data. The Writ of Habeas Data refers to one’s right to privacy in life, liberty and security. So that would include your right to privacy and it may relate to privacy of communications. The writ is applicable if there is a violation or threatened violation of such right to privacy by unlawful act or omission of any person or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party. The objective of the writ is to enjoin the act or order the deletion, destruction, rectification of the erroneous data of information. This writ is normally addressed to those or properly addressed to those who are tasked with gathering these information. There are two things that may be the object of this writ: 1. If the information gathered is violative of your right to privacy, life, liberty or security; or 2. If there is a need to update the facts taken of you then the data, they can be ordered corrected. FREEDOM OF EXPRESSION
The theory under freedom of expression is that it is only through a free speech that ultimately government is to be hold. When there is a competition of ideas in the free market of ideas where everybody could freely speak and compete therein that government is ultimately ran by __ of public opinion. The entire idea is that based on philosophical basis of it, desired ultimate good is better reached if people are free to speak against the ills of government because if people are not free to speak, abuses in the government or in the administration may not be made public and therefore not corrected.
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
are not actually a form of censorship because they can be shown in appropriate theatres but, again, we don’t have one yet.
Scope of Freedom of Expression The scope of freedom of expression is only available in discussion of matters affecting public interest. Purely private matters are not covered and are not supposed to be guaranteed under free speech. The two components or elements are: 1. Prior restraint 2. Freedom from subsequent punishment Prior restraint is normally in the form of censorship. There is an injunction for the expression prior to them being made. There are some government regulations which must have to be complied before the activity involving the freedom can be exercised. And sometimes they are confused to be in the form of censorship just like the requirement of permits and fees. If, say ABS-CBN, a media facility, is required to secure a franchise first before it could exercise an activity involving free speech or freedom of the press or media and/or required thereafter to secure business permit, that is not censorship because it is not a non-content based regulation. They are imposed as a matter of constitution with respect to franchise because to engage in mass media is not a right but a privilege. The privilege there is made as a matter of course because the government has the right to control them in certain situations not as to their content but as to their coverage as the need arises. The most common of which is when the government as part of the franchise, conditions the grant by requiring these media facilities to give them free government time. You have seen these on TV: “the public service is brought to you by blah blah...” Those are normally part of the conditions of the franchise. The other form of regulation, which the State has imposed and which the SC has refused also to consider as censorship, is the imposition of the ratings and classifications by the MTRCB. In several cases that had been brought to the SC, all of them turned out to have been ruled in favour of the MTRCB because this is just a ratings and classifications board. If a movie, motion picture or a television show has been rated as X or XX or XXX, they cannot be shown in theatres other that those which have been established and allowed for business to publicly show X, XX or many X rated motion pictures. We don’t have those kinds. That’s why it cannot be publicly displayed or shown. But in reality, if there are theatres established for that purpose, they can actually be exhibited publicly just like in the other countries. Again, there is none yet established here and none yet allowed for that purpose. But if there is such, they can be publicly shown. That is basically the common reasoning why the classification and rating
53
In prior restraints, the usual course of the SC’s decision on the validity of the prior restraint regulation is to declare against its constitutionality or validity. The presumption is that, the prior restraint is not valid or unconstitutional. Again this is only for purely censorship provisions of law or laws providing for censorship, but if it is rating or classification, it has long been established that the MTRCB has the power. There’s special mention with respect to movies, television and radio programs that they can be classified and rated for public exhibition not (as forms of censorship) but because there is a need to protect the intended viewers or listeners of these programs or motion pictures. The rule of thumb is that, the greater access of the public to this form of mass media, the greater there is allowance for state regulation. If there is less access of this form of mass media by the public, there is less state regulation. Radio and television... there is more access on radio than in TV that’s why in radio there is more regulation that TV Motion pictures as against TV shows... there is more regulation in TV than in motion pictures because sometimes the prohibitive cause of viewing a motion picture in public theatres would limit or prevent a lot more to view the motion picture. Going back to the new forms of mass media today like the internet, is that regulated? Do you know of a law which has regulated the use of the internet as a form of mass media? I think there is no law, as far as I know. I have not come across a law which has dealt directly with the use of the internet. There are some... there is a law regarding recording and uploading of sex scandal videos [Anti-Voyeurism Act]. There is a law on that. It is violative of the right of those people on the video. But it’s just one, but you go to other forms, what about selling on Facebook? There may be allowable regulation when it comes to these normal forms (like TV, motion pictures...). Between radio and printed mass media, there is less regulation in printed form because its form makes it not available to everybody. If the printed publication is not available to certain localities, automatically those will never go to targeted individuals. And since it is printed, it has to be read. Those who cannot read will necessarily be excepted of that target group unless those would refer to pictures. Subsequent punishment
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
Subsequent punishment... the second component... the restrictions come in the form of punishments. There are two considerations when a regulation in a form of subsequent punishment is tested: 1. It has to be determined whether it is a content-based restriction or a content neutral restriction In content-based restriction, the usual tests would be: a. Dangerous Tendency Test b. Clear-and-Present Danger Test c. Balancing of Interest Test Those are the three most common tests. There are two tests mentioned also in your outline: d. Direct Incitement e. Grave but Improbable Danger They are cited there because they have been quoted in some cases though they may not have been applied. The Dangerous Tendency Test: when there is a state interest which has to be protected from the evils to be brought about by the speech or expression and there is a dangerous tendency that the speech or expression will bring about that evil, then the State has the right to prevent it from happening. This test is normally used if the speech or regulation has something to do with national security interest. When the very existence of an organized government is at stake, the State will not wait that there is a clear-and-present danger. The mere tendency that these utterances claimed under free speech will bring about the evil which will generally affect the very existence of an organized government is sufficient for the State to regulate that particular form of expression. In Clear-and-Present Danger Test, there are two operative phrases there. Clear meaning there is a causal relation between the expression or the exercise of the right and the evil sought to be avoided. Present that it is inevitable that the evil sought to be avoided will happen because of the subject expression. Now in this test, it is not only the words which are supposed to be tested, it is also to consider the circumstances that these utterances are made. Usual example is when you shout the word “fire” in an open field. Though fire or the existence of fire or expressing that there is a fire will bring about some form of distraction but if it is uttered in the open field it cannot bring about such distraction. But if it is uttered in a movie house, then that will bring about stampede, distraction, injury or death to the movie theatre goers. So the circumstances are also considered in determining whether
54
or not the evil sought to be avoided will inevitably happen if the expression is not regulated. The Balancing of Interest Test is normally used when there are clashes of rights or claims of rights. Remember when we mentioned about the hierarchy of rights? The Constitution has preferred rights in accordance with their importance or value in our system of existence. And when there are several of these rights clashing with each other, then the court will have to exercise its discretion with the use of this Balancing of Interest test. Which of these interests should be upheld in this particular situation? Again, while there is a hierarchy of these rights not because one occupies a higher level than the other (that automatically this right in the higher level will prevail over that which pertains to a lower right in the hierarchy), it is to be decided or resolved based on the circumstances of the case and which of these rights will prevail using the Balancing of Interest test. Let’s continue tomorrow.
TRINIDAD, CHE MAGABILEN, DARLENE It is not enough to take steps which may some day lead to a goal; each step must be itself a goal and a step likewise.
~Johann Wolfgang von Goethe You got a dream... You gotta protect it. People can't do somethin' themselves, they wanna tell you you can't do it. If you want somethin', go get it. Period. ~ Will Smith, Smith The Pursuit of Happyness
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
August 9, 2012 FREEDOM OF EXPRESSION
Now we are still with content neutral restrictions and we have discussed the various tests generally used in determining whether the regulation under subsequent punishment is supposed to be valid based on the applicable tests. Now in various situations as applied, to restate, in print media, we have mentioned that there is lesser latitude as compared to the other forms of mass media based on the extent of the reach of coverage of said form of mass media. In print media itself, there is also a distinction to be made if it were to be a news item or a feature story. When the item subject of the regulation is an action for libel or damages, for example, is based on a news story, the SC has given a wider latitude for freedom of expression of media in deference of the fact that in news items there is a daily deadline to meet so that if there are in accuracies in the statements, provided there is no malice intended then the expression would be upheld over the regulation. However, if it were to be a feature story, there is supposed to be a lesser latitude as compared to that of the news item because in a feature story there is a reasonable amount of time to verify the sources and to verify the veracity or falsity of a fact which is subject of a feature story. In one case, an old case, SC said that care is to be taken that in publication, there is avoidance of affirming of what is not true or reckless disregard to take necessary steps in ascertaining its truth or falsity. That is why in news items, where there is another person or entity involved, they would always have a statement that they had taken steps to secure the comment of the persons subject of the item before they have published the item in deference to or in response to their obligation that they must have acted diligently or prudently to ascertain the truth or falsity of the item before it seize the libel thing in print media because if the reason for the failure to seek or verify its truth or falsity is careless disregard for the truth or there is really a willful assertion of what is false then they could not be protected under the freedom of speech, media or expression. Now in broadcast media, we mentioned yesterday that there is stringent regulatory powers on the part of the government due to its nature and its accessibility. As between TV and radio, there is more government regulation in radio based on the nature of radio coverage and the reach of audiences which is not similar to that of TV.
55
Now in freedom of the press there are four aspects to it that was discussed in the cases of News Sound Broadcasting vs Dy and Soriano vs Laguardia. The four aspects are as follows: 1. Freedom from prior restraint 2. Freedom from subsequent punishment which are actually the two main components of free speech 3. Freedom to access for information under Article 3,Section 7 4. Freedom of circulation (CHAVEZ vs GONZALES) G.R. No. 168338 February 15, 2008 FRANCISCO CHAVEZ vs. RAUL M. GONZALES THIS CASE IS ABOUT THE GARCI SCANDAL Generally, restraints on freedom of speech and expression are evaluated by either or a combination of three tests, i.e., (a) the dangerous tendency doctrine which permits limitations on speech once a rational connection has been established between the speech restrained and the danger contemplated; (b) the balancing of interests tests, used as a standard when courts need to balance conflicting social values and individual interests, and requires a conscious and detailed consideration of the interplay of interests observable in a given situation of type of situation; and (c) the clear and present danger rule which rests on the premise that speech may be restrained because there is substantial danger that the speech will likely lead to an evil the government has a right to prevent. This rule requires that the evil consequences sought to be prevented must be substantive, "extremely serious and the degree of imminence extremely high." As articulated in our jurisprudence, we have applied either the dangerous tendency doctrine or clear and present danger test to resolve free speech challenges. More recently, we have concluded that we have generally adhered to the clear and present danger test.XXX Anatomy of Restrictions: Prior Restraint, Content-Neutral and Content-Based Regulations Philippine jurisprudence, even as early as the period under the 1935 Constitution, has recognized four aspects of freedom of the press. These are (1) freedom from prior restraint; (2) freedom from punishment subsequent to publication; (3) freedom of access to information; and (4) freedom of circulation. Considering that petitioner has argued that respondents’ press statement constitutes a form of impermissible prior restraint, a closer scrutiny of this principle is in order, as well as its sub-specie of content-based (as distinguished from content-neutral) regulations.
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
At this point, it should be noted that respondents in this case deny that their acts constitute prior restraints. This presents a unique tinge to the present challenge, considering that the cases in our jurisdiction involving prior restrictions on speech never had any issue of whether the governmental act or issuance actually constituted prior restraint. Rather, the determinations were always about whether the restraint was justified by the Constitution. Be that as it may, the determination in every case of whether there is an impermissible restraint on the freedom of speech has always been based on the circumstances of each case, including the nature of the restraint. And in its application in our jurisdiction, the parameters of this principle have been etched on a caseto-case basis, always tested by scrutinizing the governmental issuance or act against the circumstances in which they operate, and then determining the appropriate test with which to evaluate. Prior restraint refers to official governmental restrictions on the press or other forms of expression in advance of actual publication or dissemination. Freedom from prior restraint is largely freedom from government censorship of publications, whatever the form of censorship, and regardless of whether it is wielded by the executive, legislative or judicial branch of the government. Thus, it precludes governmental acts that required approval of a proposal to publish; licensing or permits as prerequisites to publication including the payment of license taxes for the privilege to publish; and even injunctions against publication. Even the closure of the business and printing offices of certain newspapers, resulting in the discontinuation of their printing and publication, are deemed as previous restraint or censorship. Any law or official that requires some form of permission to be had before publication can be made, commits an infringement of the constitutional right, and remedy can be had at the courts Given that deeply ensconced in our fundamental law is the hostility against all prior restraints on speech, and any act that restrains speech is presumed invalid, and "any act that restrains speech is hobbled by the presumption of invalidity and should be greeted with furrowed brows," it is important to stress not all prior restraints on speech are invalid. Certain previous restraints may be permitted by the Constitution, but determined only upon a careful evaluation of the challenged act as against the appropriate test by which it s hould be measured against.
56
its validity. Because regulations of this type are not designed to suppress any particular message, they are not subject to the strictest form of judicial scrutiny but an intermediate approach— somewhere between the mere rationality that is required of any other law and the compelling interest standard applied to contentbased restrictions. The test is called intermediate because the Court will not merely rubberstamp the validity of a law but also require that the restrictions be narrowly-tailored to promote an important or significant governmental interest that is unrelated to the suppression of expression. The intermediate approach has been formulated in this manner: A governmental regulation is sufficiently justified if it is within the constitutional power of the Government, if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incident restriction on alleged [freedom of speech & expression] is no greater than is essential to the furtherance of that interest. On the other hand, a governmental action that restricts freedom of speech or of the press based on content is given the strictest scrutiny in light of its inherent and invasive impact. Only when the challenged act has overcome the clear and present danger rule will it pass constitutional muster, with the government having the burden of overcoming the presumed unconstitutionality. Unless the government can overthrow this presumption, the content-based restraint will be struck down. With respect to content-based restrictions, the government must also show the type of harm the speech sought to be restrained would bring about— especially the gravity and the imminence of the threatened harm – otherwise the prior restraint will be invalid. Prior restraint on speech based on its content cannot be justified by hypothetical fears, "but only by showing a substantive and imminent evil that has taken the life of a reality already on ground." As formulated, "the question in every case is whether the words used are 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 Congress has a right to prevent. It is a question of proximity and degree." The regulation which restricts the speech content must also serve an important or substantial government interest, which is unrelated to the suppression of free expression.
Hence, it is not enough to determine whether the challenged act constitutes some form of restraint on freedom of speech. A distinction has to be made whether the restraint is (1) a contentneutral regulation, i.e., merely concerned with the incidents of the speech, or one that merely controls the time, place or manner, and under well defined standards; or (2) a content-based restraint or censorship, i.e., the restriction is based on the subject matter of the utterance or speech. The cast of the restriction determines the test by which the challenged act is assayed with.
Also, the incidental restriction on speech must be no greater than what is essential to the furtherance of that interest. A restriction that is so broad that it encompasses more than what is required to satisfy the governmental interest will be invalidated. The regulation, therefore, must be reasonable and narrowly drawn to fit the regulatory purpose, with the least restrictive means undertaken.
When the speech restraints take the form of a content-neutral regulation, only a substantial governmental interest is required for
Thus, when the prior restraint partakes of a content-neutral regulation, it is subjected to an intermediate review. A content-
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
based regulation, however, bears a heavy presumption of i nvalidity and is measured against the clear and present danger rule. The latter will pass constitutional muster only if justified by a compelling reason, and the restrictions imposed are neither overbroad nor vague. Applying the foregoing, it is clear that the challenged acts in the case at bar need to be subjected to the clear and present danger rule, as they are content-based restrictions. The acts of respondents focused solely on but one object—a specific content— fixed as these were on the alleged taped conversations between the President and a COMELEC official. Undoubtedly these did not merely provide regulations as to the time, place or manner of the dissemination of speech or expression.
So these are the four aspects generally followed under freedom of press. The usual form and which is still a good law today as a form of subsequent punishment which has not been declared as unconstitutional as yet is our law on libel whether it be a case for libel arising from a statement which is claimed to be defamatory either in its criminal form or as a form of claim for civil damages. This has been the usual form of subsequent punishment imposed after the expression has been made. We all know that the law on libel is still a good law although in the news paper you may have read that Sen. Honasan has introduced a bill in the senate which will decriminalize libel. They would want libel to be decriminalized so it’s free for everybody to defame anybody else. So libel is any public and malicious imputation of a crime, vice, or defect, real or imaginary of an act, status, condition, commission or omission or circumstance tending to cause dishonor, discredit or contempt of person or blacken the memory of the dead. In several cases, it has also been said that praise undeserved is libel in disguise. Several matters with respect to libel, as you very well know, there is no need to particularly name a person as the person defamed to constitute a violation and therefore be criminally liable for libel for so long as from the statement it can be ascertained by the readers, if it is in print media or by the mass who have heard it if it is orally made, that the person defamed is identifiable. Of course, it is not based solely on the fact that the person defamed could identity itself, it must have to be that the readers or the listeners could identify the person defamed although not named. That is why the most common, even the broad sheet of the Phil Inquirer, would make these blind items and give clues as to who these particular persons are but necessarily giving up the identity of that person from the printed item to avoid any liability for libel be it criminal or civil.
However, there are certain situations where malice is not presumed though it can be proven or that the presumption of malice can be overcome. So for the following statements: private communication for legal, moral or social duty or fair and true report in good faith without comment of any judicial, legislative or other official proceedings not confidential in nature or the court or speech in such proceedings as exercised by public officials are considered relatively privilege statements that malice in those statements is not presumed but they can be actually be proven as a fact. So that if the statement for example refers to a letter that is made in relation to the call of social, civic or moral duty addressed to a person of position who could address the problems sought to be addressed in the said letter, if there is no unnecessary publication then that may be considered as relatively privilege. It would be different if there is an unnecessary publication of that letter because that would erase the fact that there is no malice in fact. Or if there are comments on official proceedings this is not a fair and true report, malice in fact may be considered as present. Now, the absolutely privilege statements that may not be subjected to any cause of action, the most common could be under speech and debate clause of members of congress. They shall not be held liable in any other place for any speech or debate made in congress or in any committee thereof while congress is in session, so absolutely privilege statements. Also, statements in pleadings which are material to the cause or case under consideration are also considered as absolutely privilege statements. So that if the statements in the pleadings are not material to the cause or the case under consideration they may not fall under the relatively privilege statements. So statements like, in the answer “the allegations in paragraph 16 of the complaint is denied, the claims of the plaintiff being absolutely false and the plaintiff is an absolute liar”. That statement cannot be subjected to a criminal case or civil case for libel because it is material to the case because there is a denial of the claim. Now the other matter with respect to libel would be your truth or proof as a defense so that question is: can you prove that truth of the statement to avoid liability? “Burikat mana siya! ☺ She is a prostitute! “. If you can prove that she is a prostitute, can you avoid liability for libel? OK, so the general rule is that if the statement is true provided that it is established for good motive and for justifiable ends, proof of truth is a defense. The problem is what is so called “justifiable” about claiming that the person is “burikat”.
Now in libel, malice is also presumed, so that when the statement is defamatory it is presumed in law that it is maliciously made.
57
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
If the defamatory statement is not a crime, it is only accepted as a defense for pubic officers in relation to discharge of official duties. And if it amounts to a crime, it can be used as proof or defense if the defamation is against public or private person. So if you call a private person a thief if you can prove that he is really a thief because he has committed theft or thievery then you can be exempted from liability.
APPLICATION OF TESTS IN VARIOUS CONTEXTS A. FREEDOM OF EXPRESSION AND NATIONAL SECURITY
The other situation where the matter of free speech is usually tested is when there is the question of the free exercise and against or versus our national security interest. As we have said, the dangerous tendency test is the normal test used if the utterances or expression is directed against the very existence of organized government. When the national security is at stake, the State will not wait that the evil sought to be avoided in the expression is not regulated or prevented to happen. So usually, it is resolved in favor of the State again if there is dangerous tendency that the speech sought to be avoided, if the speech is not regulated, will come true.
B. FREEDOM OF EXPRESSION AND THE RIGHT TO PRIVACY
In a clash of rights between the freedom of expression and freedom to be left or let alone or the right to privacy of the individuals, there should be a distinction if the depiction of a person in the exercise of freedom of expression, like in the motion picture or in the TV show, involves a public officer or a private person. If it is a public officer, generally there is leeway granted in favor of the freedom expression because of the character of that public personality. If it is a private person there is always a need for some arrangement with respect to the public depiction of a private life of a private person. So you have contracts to that effect then if you produce a movie involving Manny Pacquiao when he was not yet a member of congress then there must have to be some sort of agreement to that person and the person exercising freedom of expression to be able to be allowed to, in a limited sense, invade that person’s right to privacy. But with respect to a public person, there is
58
somehow much greater leeway given to the exhibition in the form of motion picture or, say, TV show of the public character of that public person’s life. Of course, it does not include his private life. For example if he is a government official and the government officials to be depicted - that his life would be depicted in that art form is supposed to be important because it involves a public incident or public event. For so long as there is no fictionalization to that extent then there is no need for an agreement with respect to that public person’s depiction of public life in that art form. That is to that extent. However, there are situations where the person is not a public functionary, strictly speaking, but because of his status in society there has, somehow, been a conversion of his person as a private character to a public personality. A lot of the movie actors would fall in this category. So, can their lives or can they be depicted in an art form without their permission? The answer is only with their respect, again, to the public character of that public personality not the private aspects of their private lives. C. FREEDOM OF EXPRESSION AND THE ADMINISTRATION OF JUSTICE (CONTEMPT OF COURT)
The last of these would be the freedom of expression and administration of justice. The discussion here is with respect to - the first is criticism to the court or of court actions or proceeding or decision. And the second would be that of concept SUB JUDICE RULE. In FAIR CRITICISM, the SC had already lain down in TULFO VS. PEOPLE (2008) that there is allowable criticism to court’s decision provided it is made fairly or this is the FAIR CRITICISM RULE, which must comply with the following conditions: 1. Must be made in good faith; 2. Must be couched with respectful language; 3. Must be directed at the merits; and 4. Must not that grave or ridicule in court or insults its members. TULFO VS. PEOPLE Facts: Atty. Ding So of the Bureau of Customs filed four separateInformations against Erwin Tulfo, Susan Cambri, Rey Salao, JocelynBarlizo, and Philip Pichay, accusing them of libel in
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
connection with the publication of articles in the column “Direct Hit” of the daily tabloid Remate. The column accused So of corruption, and portrayed him as an extortionist and smuggler. After trial, the RTC found Tulfo, et al. guilty of libel. T he CA affirmed the decision. Issues: W/N the assailed articles are fair commentaries. Ruling: NO. a. Good faith is lacking, as Tulfo failed to substantiate or even attempt to verify his story before publication. He provided no details on the acts committed by the subject. They are plain and simple baseless accusations, backed up by the word of one unnamed source. b. Not “fair” or “true” because “fair” is defined as “having the qualities of impartiality and honesty.” “True” is defined as “comfortable to fact; correct; exact; actual; genuine; honest.” Tulfo failed to satisfy these requirements, as he did not do research before making his allegations, and it has been shown that these allegations were baseless. The articles are not “fair and true reports,” but merely wild accusations. The elements of fair commentary (to be considered privileged): a. That it is a fair and true report of a judicial, legislative, or other official proceedings which are not of confidential nature, or of a statement, report, or speech delivered in said proceedings, or of any other act performed by a public officer in the exercise of his functions; b. That it is made in good faith; c. That it is without any comments or remarks. Journalists may be allowed an adequate margin of error in the exercise of their profession, but this margin does not expand to cover every defamatory or injurious statement they may make in the furtherance of their profession, nor does this margin cover total abandonment of responsibility. The mere fact that the subject of an article is a public figure or a matter of public interest does not mean it is a fair commentary within the scope of qualified privileged communication, which would automatically exclude the author from liability. The confidentiality of sources and their importance to journalists are accepted and respected. What cannot be accepted are journalists making no efforts to verify the information given by a source, and using that unverified information to throw wild accusations and besmirch the name of possibly an innocent person. Journalists have a responsibility to report the truth, and in doing so must at least investigate their stories before publication, and be able to back up their stories with proof. Journalists are not storytellers or novelists who may just spin tales out of fevered imaginings, and pass them off as reality. There must be some foundation to their reports; these reports must be warranted by facts. Freedom of expression as well as freedom of the press may not be unrestrained, but neither must it be reined in too harshly.***
Now this fair criticism rule would relate only to decisions, resolutions or orders of the court disposing of a case or a petition pending before the Court. It is not ordinarily allowable in situations where the court is yet to decide or which is actually
59
hearing still the case or petition pending before it because any of those persons who would make the said criticism will the subjected to what we know as a violation of sub judice rule and may be held liable for contempt of court. The sub judice rule, strictly speaking, applies to situations where the utterances or actions or actuations are directed against or to courts to sway his decision in favor of one course of action and against another. To say or state or utter something with respect to a pending case is not per se violative of the sub judice rule. The expression or utterances or actuations or actions must be directed to unduly influence the court in coming up its decision. So if the intent and objective of that utterance, expression, actuation or action is to sway the decision of the court and duly influence it to be one and not the other is what is contemplated under the sub judice rule. Most often than not, the public or lawyers will refuse to comment on a pending action for a fear that they will be held liable for contempt of court. But then again, if it is not intended to unduly influence the outcome of the case then there is no violation of the sub judice rule. With all the more reason here in the Philippines where we do not follow the jury system. The sub judice rule has taken its roots from countries where the case is decided under jury system because it would be difficult to insulate the members the jury from any utterances made outside of court which may bring about them to decide the case one way and not the other. In our system where case is decided by a sole presiding judge or as differentiated in collegiate courts, the so called sub due dice rule, though applicable, would not really be that prejudicial for parties because judges are supposed to have this proven probity and independence that they should be swayed by public’s persuasions on a pending action. In fact, if you remember the case of WEBB vs. DE LEON and in the onset of that case, there was a question of whether there is violation of the sub due dice rule, the media has kept on covering the particular case and at that point of having prejudicial coverage of that of case in the media. The SC made an obiter that the judges are supposed to be insulated from all these media coverage whether it may be prejudicial or not because of the fact that they are supposed to be deciding cases based on the facts and evidence presented. The so called prejudicial coverage would only be considered as having unduly influence the judge if there is a direct showing that there is a causal relation between the prejudicial coverage and the decision or the resolution of the judge.
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
Now, in relation, still, to the fair criticism rule, the SC has mentioned two principles affecting one’s right to criticize court’s proceedings, namely: 1. 2.
OPEN JUSTICE POLICY; and PRINCIPLE OF JUDICIAL INDEPENDENCE.
The open justice policy allows a person’s right to criticize the judiciary in order to prevent arbitrariness in the exercise of judicial power and thus, maintaining the public’s confidence in that system. However in the principle of judicial independence, in order for the courts to decide cases fair and square and not unduly influence by these criticisms, it states that the courts should be free from unjust criticisms and the freedom of the court from these unjust criticisms are in two aspects, namely: 1. 2.
The institutional; and The individual.
Institutional, meaning that the courts in general must be insulated from unfair criticism so that it will not or the judiciary being the non-reactive branch of government and being a non political office, it is supposed to be insulated from the pressures of public opinion where it is mostly desired in the executive and legislative department. The philosophical basis of the freedom of expression that the government’s objective is best achieved through the competing ideas in the free market should not be applied to ordinary court decisions because courts must decide cases based on the facts, evidence and the applicable laws on the particular case. Individual because judges are also human beings. They must also be free from unjust criticisms. While public officers are not immune from criticisms, in one old case, the SC made a statement that the balm of clean conscience would actually assuage the wounded feelings brought about by unfair criticisms is not only applicable to other public officers but must also be applicable to judges. But then again, since judges are, like the judiciary, are not political officers, they should be insulated from unjust criticisms so that they will be able to maintain their judicial independence - that they will decide cases based on what has been presented to them or before them, with the evidence and apply it to the applicable laws in that particular case.
Now, CONTENT NEUTRAL RESTRICTIONS, the regulation, as a form of subsequent punishment, may be allowed because it is on the circumstances when the expression is made and not on the content of the expression. The normal test used is the O’BRIEN TEST taken from the US decision of US vs. O’BRIEN (1968). This was adopted in the case of ADIONG VS. COMELEC (1992).
If you remember this case, this refers to the political exercise where the COMELEC issued, then, what was referred to COMELEC TIME and COMELEC SPACE -that the public or that the election propaganda of any candidate in printed form can only be posted in areas designated as COMELEC SPACES. Now this refers to cars, stickers or decals bearing the name of a candidate. Now, can the COMELEC penalize or regulate the posting of these election propaganda in the form of stickers or decals to be posted only in COMELEC spaces not to be allowed to be posted in anywhere else like a motor vehicle. So, the SC quoted the case the principle in the case of US vs. O’BRIEN, the regulation is valid 1. if it is within the constitutional powers of government; 2. if it furthers an important or substantial government interest; 3. if the governmental interest is unrelated to the suppression of free expression; and 4. if the incidental restriction on alleged freedom of expression is greater than is essential to the furtherance of government interest.
ADIONG VS. COMELEC Facts: COMELEC promulgated Resolution No. 2347 which provides that decals and stickers may be posted only in any of the authorized posting areas, prohibiting posting in "mobile" places, public or private. Petitioner Blo Umpar Adiong, a senatorial candidate in the May 11, 1992 elections now assails the Resolution. In addition, the petitioner believes that with the ban on radio, television and print political advertisements, he, being a neophyte in the field of politics stands to suffer grave and irreparable injury with this prohibition.
Issue: Whether unconstitutional.
or
Not
the
COMELEC’s
prohibition
CONTENT NEUTRAL RESTRICTIONS Held: The prohibition unduly infringes on the citizen's fundamental right of free speech. The preferred freedom of expression calls all
60
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
the more for the utmost respect when what may be curtailed is the dissemination of information to make more meaningful the equally vital right of suffrage. The so-called balancing of interests — individual freedom on one hand and substantial public interests on the other — is made even more difficult in election campaign cases because the Constitution also gives specific authority to the Commission on Elections to supervise the conduct of free, honest, and orderly elections. When faced with border line situations where freedom to speak by a candidate or party and freedom to know on the part of the electorate are invoked against actions intended for maintaining clean and free elections, the police, local officials and COMELEC, should lean in favor of freedom. The regulation of election campaign activity may not pass the test of validity if it is too general in its terms or not limited in time and scope in its application, if it restricts one's expression of belief in a candidate or one's opinion of his or her qualifications, if it cuts off the flow of media reporting, and if the regulatory measure bears no clear and reasonable nexus with the constitutionally sanctioned objective. The posting of decals and stickers in mobile places like cars and other moving vehicles does not endanger any substantial government interest. There is no clear public interest threatened by such activity so as to justify the curtailment of the cherished citizen's right of free speech and expression. Under the clear and present danger rule not only m ust the danger be patently clear and pressingly present but the evil sought to be avoided must be so substantive as to justify a clamp over one's mouth or a writing instrument to be stilled. The regulation strikes at the freedom of an individual to express his preference and, by displaying it on his car, to convince others to agree with him. A sticker may be furnished by a candidate but once the car owner agrees to have it placed on his private vehicle, the expression becomes a statement by the owner, primarily his own and not of anybody else. The restriction as to where the decals and stickers should be posted is so broad that it encompasses even the citizen's private property, which in this case is a privately-owned vehicle. In consequence of this prohibition, another cardinal rule prescribed by the Constitution would be violated. Section 1, Article III of the Bi ll of Rights provides that no person shall be deprived of his property without due process of law. The prohibition on posting of decals and stickers on "mobile" places whether public or private except in the authorized areas designated by the COMELEC becomes censorship.
REGULATION OF POLITICAL CAMPAIGN OR ELECTION ACTIVITY
Now in that election related activity, as discussed also in the case of OSMENA VS. PHILIPPINE PRESS INSTITUTE (not found in the outline). In relation to that O’BRIEN TEST, in the case of ADIONG, the regulation of election related activity: 1.
61
must not be too general or limited in time and scope on its application;
2. 3. 4.
does not restrict one’s the expression or belief or opinion of qualification; does not cut off the flow of media reporting; and must bear clear and reasonable connection with the sanction and objective of the regulation.
What was subject of this case of OSMENA whether or not media practitioners should be regulated in COMELEC time and space if they would write something about a candidate. No problem if it were to be a plebiscite because in a plebiscite, there is no candidate to be elected but the ones to be voted on are issues, so media practitioners to be allowed to defend a position on that issue in a plebiscite. But with respect to the election, there seems to be a way of media practitioners in right to circumvent the regulation on equal access to public office. This so called COMELEC time and space before were instituted in order to equalize the supposed exposure of candidates to have the resources and those who have none under the constitutional concept of equal chances or opportunity to public office. Those rules have been changed substantially by the Fair Elections Act of 2001. There are more allowable time, there are more allowable exposure in print media but just the same principle should apply the principle on whether or not the State through the COMELEC which is tasked to enforce or implement all elections related laws would have the power to regulate the exercise of media practitioners over qualifications or other considerations of a candidate during an election campaign. Now, the SC has resolved this issue in favor of the press people - that for so long as it is a legitimate reporting on that qualifications of that candidate in trying to illicit from the readers an approval or disapproval of the qualifications or non-qualifications of a candidate, that should be allowable. Now, in the O’BRIEN case which was adopted in the case of ADIONG, the putting up and the sticking of these decals or stickers in places other than the COMELEC space was held by the SC as unconstitutional because to stick the decals or stickers in cars or privately owned properties are actually considered as a form of expression because this is the choice of the person as to his candidate. So, it is not normally expected that the candidate would just be allowed to stick the sticker in any car without the permission of the owner because it is the owner’s choice and preference on which candidate sticker will be allowed to be posted or to be placed on this motor vehicle. So it goes beyond the supposed regulation if it were to cover that situation.
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
That is why even in the FAIR ELECTIONS ACT you may have noticed that during election campaign, there are a lot of posters or streamers which are not compliant that are posted in private places. Because there is a question, even if you read the Fair Elections Act, what is covered by the regulation to be posted in COMELEC spaces must have to be compliant is no question. It must compliant to the regulated sizes. But what if you would want it to be placed in your own private place, should your poster or sticker be compliant? In the past several elections, this 2001 Fair Elections Act had always maintained that if it is in a private property, you can put everything there, in whatever size, because it is your expression. If you have a wall by your building, write your name there, put your face there and let the COMELEC bring it down and let us see who shall win because it is your expression. The reason why they regulate the sizes in the COMELEC Space is to give everybody a fair chance. If the regulation is one long bond paper size, why put up a poster size? Your face will be bigger than the rest.
And under the law, which is correct, if under BP 880, if there is no word within, I think, 24 or 48 hours from the time the application is made, it is deemed approved. BATAS PAMBANSA BLG. 880 AN ACT ENSURING THE FREE EXERCISE BY THE PEOPLE OF THEIR RIGHT PEACEABLY TO ASSEMBLE AND PETITION THE GOVERNMENT FOR OTHER PURPOSES
Section 4. Permit when required and when not required - A written permit shall be required for any person or persons to organize and hold a public assembly in a public place. However, no permit shall be required if the public assembly shall be done or made in a freedom park duly established by law or ordinance or in private property, in which case only the consent of the owner or the one entitled to its legal possession is required, or in the campus of a government-owned and operated educational institution which shall be subject to the rules and regulations of said educational institution. Political meetings or rallies held during any election campaign period as provided for by law are not covered by this Act. Section 5. Application requirements - All applications for a permit shall comply with the following guidelines:
FREEDOM OF ASSEMBLY
The other allowable or which still continue to be allowed under present day consideration is the Public Assembly Act of 1985 or BP 880. Under BP 880, the law primarily requires a permit to be secured first if the public assembly is to be held in a public place other than those designated as freedom parks. Now, this requirement of permit is content neutral because it has nothing to do with the utterances or the expression made in that public assembly. The reason why permit is required is in-order for the LGU or for the State, for that matter, to allocate from among the public using the public facility on who shall be allowed to use this for the efficient use of everybody. If it is in a private place, BP 880 is not applicable. So you can do your own thing in that private place. The only requirement is that, there must have consent from the private place owner. If it is in the freedom park or established to be a freedom park, still no requirement of permit because it is supposed to be established for such purpose.
(a) The applications shall be i n writing and shall include the names of the leaders or organizers; the purpose of such public assembly; the date, time and duration thereof, and place or streets to be used for the intended activity; and the probable number of persons participating, the transport and the public address systems to be used. (b) The application shall incorporate the duty and responsibility of applicant under Section 8 hereof. (c) The application shall be filed with the office of the mayor of the city or municipality in whose jurisdiction the intended activity is to be held, at least five (5) working days before the scheduled public assembly. (d) Upon receipt of the application, which must be duly acknowledged in writing, the office of the city or municipal mayor shall cause the same to immediately be posted at a conspicuous place in the city or municipal building. Section 6. Action to be taken on the application –
Now, if you have noticed there was an issue on this permit during the last SONA because from the vantage point of the applicant, the one who conducted the rally going to Batasang Pambansa they said they have made an application and there was no response - either to grant it or to deny it.
62
(a) It shall be the duty of the mayor or any official acting in his behalf to issue or grant a permit unless there is clear and convincing evidence that the public assembly will create a clear and present danger to public order, public safety, public convenience, public morals or public health.(b) The mayor or any
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
official acting in his behalf shall act on the application within two (2) working days from the date the application was filed, failing which, the permit shall be deemed granted. Should for any reason the mayor or any official acting in his behalf refuse to accept the application for a permit, said application shall be posted by the applicant on the premises of the office of the mayor and shall be deemed to have been filed.(c) If the mayor is of the view that there is imminent and grave danger of a substantive evil warranting the denial or modification of the permit, he shall immediately inform the applicant who must be heard on the matter. (d) The action on the permit shall be in writing and served on the application within twenty-four hours. (e) If the mayor or any official acting in his behalf denies the application or modifies the terms thereof in his permit, the applicant may contest the decision in an appropriate court of law. (f) In case suit is brought before the Metropolitan Trial Court, the Municipal Trial Court, the Municipal Circuit Trial Court, the Regional Trial Court, or the Intermediate Appellate Court, its decisions may be appealed to the appropriate court within fortyeight (48) hours after receipt of the same. No appeal bond and record on appeal shall be required. A decision granting such permit or modifying it in terms satisfactory to the applicant shall, be immediately executory. (g) All cases filed in court under this Section shall be decided within twenty-four (24) hours from date of filing. Cases filed hereunder shall be immediately endorsed to the executive judge for disposition or, in his absence, to the next in rank.
with local government officials concerned and law enforcers to the end that the public assembly may be held peacefully;(d) To see to it that the public assembly undertaken shall not go beyond the time stated in the permit; and(e) To take positive steps that demonstrators do not molest any person or do any act unduly interfering with the rights of other persons not participating in the public assembly. Section 9. Non-interference by law enforcement authorities - Law enforcement agencies shall not interfere with the holding of a public assembly. However, to adequately ensure public safety, a law enforcement contingent under the command of a responsible police officer may be detailed and stationed in a place at least one hundred (100) meter away from the area of activity ready to maintain peace and order at all times.xxx Section 15. Freedom parks - Every city and municipality in the country shall within six months after the effectivity of this Act establish or designate at least one suitable "freedom park" or mall in their respective jurisdictions which, as far as practicable, shall be centrally located within the poblacion where demonstrations and meetings may be held at any time without the need of any prior permit. In the cities and municipalities of Metropolitan Manila, the respective mayors shall establish the freedom parks within the period of six months from the effectivity of this Act.
And also, in this case of IBP vs. ATIENZA, a 2010 case, 2 matters are subject of discussion, to wit; 1.
One, the application for a permit under the BP 880 can be denied based on clear and present danger. So, if the rally is to be allowed since a permit is to be granted and there is a clear and present danger that the evil sought to be avoided will happen then the application must have to be denied. However, if it is to be denied, the applicant must have to be heard. So, relating this to the last SONA, if the city government of QC would have denied it because they thought that it will bring about chaos and violence if this rally will be allowed to get in the Batasan complex when the President will deliver his SONA, then they should have denied the application after hearing the applicant why they would want to have permit.
2.
The second is that, still in the case of IBP, the SC said that when the application is made, it should be granted based on the terms of the application. So for example, the application is made for a particular day, and that the rally particular day at a particular place, it should be granted based on those terms. If the LGU chief executive would wish to grant it on different
(h) In all cases, any decision may be appealed to the Supreme Court. (i) Telegraphic appeals to be followed by formal appeals are hereby allowed. Section 7. Use of public thoroughfare - Should the proposed public assembly involve the use, for an appreciable length of time, of any public highway, boulevard, avenue, road or street, the mayor or any official acting in his behalf may, to prevent grave public inconvenience, designate the route thereof which is convenient to the participants or reroute the vehicular traffic to another direction so that there will be no serious or undue interference with the free flow of commerce and trade. Section 8. Responsibility of applicant - It shall be the duty and responsibility of the leaders and organizers of a public assembly to take all reasonable measures and steps to the end that the intended public assembly shall be conducted peacefully in accordance with the terms of the permit. These shall include but not be limited to the following:(a) To inform the participants of their responsibility under the permit; (b) To police the ranks of the demonstrators in order to prevent non-demonstrators from disrupting the lawful activities of the public assembly;(c) To confer
63
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
terms from that of the application, the clear and present danger test should be used to determine why there should be a change in the terms for the application and that grant of the application would also require hearing for that purpose of determining whether there is clear and present danger for a allowing the LGU to change the terms of the application.
What happened in this case was that the IBP National Office applied for a rally permit to conduct a rally at Mendiola Bridge. It was granted without any hearing but they were allowed to conduct that public assembly or rally at Plaza Miranda. The IBP still proceeded to conduct their rally at the designated time and date per application and also at the place of the application but not in the place as indicated in the permit. They went to Plaza Mendiola and they were charge for violation of BP 880, for conducting a rally without a permit. They went to the SC on that issue eventually and the SC upheld the position of the IBP because the change of the tenor of the application in the grant of the permit as applied for can only be done if there is justifiable reasons for doing so under the clear and present danger rule and there is a hearing conducted to determine whether or not indeed there is a need to alter or change the terms of the application. OK! G.R. No. 175241 February 24, 2010 INTEGRATED BAR OF THE PHILIPPINES vs. MAYOR JOSE "LITO" ATIENZA In Bayan, Karapatan, Kilusang Magbubukid ng Pilipinas (KMP) v. Ermita, the Court reiterated: x x x Freedom of assembly connotes the right of the people to meet peaceably for consultation and discussion of matters of public concern. It is entitled to be accorded the utmost deference and respect. It is not to be limited, much less denied, except on a showing, as is the case with freedom of expression, of a clear and present danger of a substantive evil that the state has a right to prevent. Even prior to the 1935 Constitution, Justice Malcolm had occasion to stress that it is a necessary consequence of our republican institutions and complements the right of free speech. To paraphrase the opinion of Justice Rutledge, speaking for the majority of the American Supreme Court in Thomas v. Collins, it was not by accident or coincidence that the rights to freedom of speech and of the press were coupled in a single guarantee with the rights of the people peaceably to assemble and to petition the government for redress of grievances. All these rights, while not identical, are inseparable. In every case, therefore, where there is a limitation placed on the exercise of this right, the judiciary is called upon to examine the effects of the challenged governmental actuation. The sole justification for a
64
limitation on the exercise of this right, so fundamental to the maintenance of democratic institutions, is the danger, of a character both grave and imminent, of a serious evil to public safety, public morals, public health, or any other legitimate 14 public interest. (emphasis supplied) The Court in Bayan stated that the provisions of the Public Assembly Act of 1985 practically codified the 1983 ruling in Reyes 15 v. Bagatsing. In juxtaposing Sections 4 to 6 of the Public Assembly Act with the pertinent portion of the Reyes case, the Court elucidated as follows: x x x [The public official concerned shall] 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 16 the proper judicial authority. (italics and underscoring supplied) In modifying the permit outright, respondent gravely abused his discretion when he did not immediately inform the IBP who should have been heard first on the matter of his perceived imminent and grave danger of a substantive evil that may warrant the changing of the venue. The opportunity to be heard precedes the action on the permit, since the applicant may directly go to court after an unfavorable action on the permit. 1avvphi1 Respondent failed to indicate how he had arrived at modifying the terms of the permit against the standard of a clear and present danger test which, it bears repeating, is an indispensable condition to such modification. Nothing in the issued permit adverts to an imminent and grave danger of a substantive evil, which "blank" denial or modification would, when granted imprimatur as the appellate court would have it, render illusory any judicial scrutiny thereof. It is true that the licensing official, here respondent Mayor, is not devoid of discretion in determining whether or not a permit would be granted. It is not, however, unfettered discretion. While prudence requires that there be a realistic appraisal not of what may possibly occur but of what may probably occur, given all the relevant circumstances, still the assumption – especially so where the assembly is scheduled for a specific public place – is that the permit must be for the assembly being held there. The exercise of such a right, in the language of Justice Roberts, speaking for the American Supreme Court, is not to be "abridged on the plea that it may be exercised in some other place." (emphasis and underscoring supplied) Notably, respondent failed to indicate in his Comment any basis or explanation for his action. It smacks of whim and caprice for respondent to just impose a change of venue for an assembly that
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
was slated for a specific public place. It is thus reversible error for the appellate court not to have found such grave abuse of discretion and, under specific statutoryprovision, not to have modified the permit "in terms satisfactory to the applicant."
Now final items on freedom of expression. Commercial speech. Now, what is a commercial speech? A commercial speech is a speech done in behalf of a company or individual for economic or financial gains. Common example of it would be your advertisements. So for example VIC SOTTO will say something about TIDE ba yon? The name is BLAH BLAH… Can the government regulate that speech because it is not true, that there is no truth to that statement because in reality it is surf which has the characteristic? “Iba nga dyan sa commercial ilalagay ko lang walang kuso kuso, malilinis na daw. San kaya yang sabon na yan?” Can the government regulate that? OK! In the US, there is truth in advertising. That is why, it is common in them that if there is brand X, Y, Z, A, B, C as front cover in the Philippines, there, there is none. It is really by brand name. If I am selling TIDE and I have a brand SURF here, ARIEL here and state that TIDE is the BEST! In the Philippines, it is always X, Y, Z, and that TIDE because they don’t want to be held liable for those other brands. Now, can that be regulated - commercial speech? Commercial speech meaning those expressions in relation to commercial transactions. They are not protected speech in the same category as private speech. OK? So the ordinary expression, say, media practitioners, you as a commentator or member of non government organizations participating in public assemblies for regress and grievances, speeches thereto are protected speech and they are greatly protected than the commercial speeches. So, commercial speeches because for they are for commercial transactions or commercial gains or financial gains, they are protected but not the same category as protected speech. Now government speech. Government speech, of course, are government messages. Question is that, are they subject to regulation? Well, the common subsequent answer is that, NO they are not because they are made by the State anyway. But the question here is really, if there is, say, an untruthful statement in a government speech, can they be held liable for it? Like for
65
example, if you, as a media practitioner, has written a news item or a feature story which turns out to be false, could you be held liable for it? YES! Of course you can because that is no longer protected speech. But how about government speech? If PNOY says that the Philippines GDP last year 6.4 blah blah number one…. If that turns out to be false, could you hold him liable? That is the question. Or in, (NAGRING ANG CELL NI CHAM, sir: “HELLO!”) public advertisements, government advertisements on TV…. “This has been brought to you by Kapisanan ng mga Broadcasters ng Pilipinas through the help Government information office, blah blah…” Can those messages regulated, that if it turns out to be false or there is an ascertion of falsehood making it as true, can they be held liable? And finally, there is a matter of HECKLER’s VETO. What is a HECKLER’s VETO? A person who is to deliver a speech which is expected to arouse violence from the reactionary group, may be called as a heckler. Can that heckler be vetoed or enjoined from actually making utterances? So for example here is a group of pro RH bill. “When was this when the catholic church had these? …last Sunday.” that the nationwide call for a rally. There is one in manila, there is one in, I think Nograles, in Davao. Sila lang ata mag-isa, but di ko lang sure. But I read in the newspapers that Karlo Nograles is anti-RH bill. So, for example, there is a group of nun and priest, an antiRH, and there is this one guy, what is his name? The famous intramuros guy, (CES BELTRAN) - that guy is pro-RH. In fact he was one who is charged for some misdemeanor when he went to church in Intramuros and shouted statements against the church leaders for being anti-RH, that same guy. What if he is about to deliver his piece in front or before this group of religious including Bishops who were there for an ANTI-RH rally, could he be prevented from uttering or from making his speech for fear that there will be a violent reaction from the targeted group which is the anti-RH bill proponents? Now, it has not been tested here but in the US, there is a mix reaction on whether a HECKLER’s veto is allowed. AGAIN, the HECKLER’S VETO is that act of the state of preventing that person considered as a heckler from making his speech or
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
utterance for fear that violence may erupt if he will be allowed to make his expression. Some would say that there is no heckler’s veto because of the right of the person to express which may illicit a violent reaction from the rest should not be curtailed simply because of the perceived violent reaction because who has the right to express and whose right of expression should be upheld - the one of the heckler or one of the reacting group? If there the reacting group has the right to express their selves, why should the heckler be prevented from expressing his opinion as well on the matter? Who should be prevented, the heckler or the reactionary group? The heckler’s utterances may bring about violence, so who should be prevented, the reacting group which will commit violence or the heckler whose expression would illicit some violence from the rest? We shall continue tomorrow.
MACLA, JAMAIL ORCULLO, HAZEL BETH
“If you want to make your dreams come true, the first thing you have to do is wake up.” - J.M. Power
If we are facing in the right direction, all we have to do is keep on walking. ~Buddhist Saying
66
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
August 14, 2012 FREEDOM OF ASSOCIATION
Section 8. The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law, shall not be abridged. ARTICLE IX B 2(5) 5. The right to self-organization shall not be denied to government employees. ARTICLE XIII, Section 3. XXX It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law. Under freedom of association, we have this case of GSIS vs. Villariza. GOVERNMENT EMPLOYEES HAVE THE FREEDOM TO ASSOCIATE, HOWEVER, THEY DO NOT HAVE THE RIGHT TO STRIKE
We all know that government employees have the right to associate themselves or to exercise their right or freedom to associate. However, they do not have the right to strike (public sector) considering that the right to strike is mentioned in the Constitution must have to be exercised in accordance with law. Where there is a law prohibiting strike or work stoppage in the public sector considering the nature of the service, they may engage in concerted activities to some extent but they can not engage in any activity that is considered a strike or work stoppage. Now in this case of GSIS vs Villariza, this was a mass action by GSIS employees against the GSIS management. They were eventually held administratively liable for it. Now the question here is whether their actions were prohibited under law. What is prohibited under the law is any act with the intent of effecting work stoppage or service disruption in order to realize their
67
demands or force concessions, economic or otherwise. Only if the actions would be constitutive of such extent with the intent to force the government to give in to their demands under threat of a work stoppage would it be constitutive of a prohibited act. What they simply did here was to wear shirts and arm bands supposedly to redress their grievances to GSIS management. They did not actually commit an act of work stoppage because they reported to work so the administrative sanctions against them were not justified. So must that be for all other government employees. While they may form an association and collectively bargain with the government, they cannot collectively bargain with the government as if they were employees from the private sector for several reasons. REASONS WHY GOVERNMENT EMPLOYEES CANNOT COLLECTIVELY BARGAIN First, would be the nature of the job is public service. It’s not actual employment. Second is, government cannot give concessions especially economic demands as ordinary CBA negotiations would have because this is largely dependent upon items already appropriated for by Congress.
Everything with respect to money -------- public treasury requires appropriations made by Congress, they cannot involve themselves into any activity which would force the government to (disburse public funds?). GSIS VS VILLARIZA GR 180291 In this case, CSC found that the acts of respondents in going to the GSIS-IU office wearing red shirts to witness a public hearing do not amount to a concerted activity or mass action proscribed above. CSC even added that their actuations can be deemed an exercise of their constitutional right to freedom of expression. The CA found no cogent reason to deviate therefrom. As defined in Section 5 of CSC Resolution No. 02-1316 which serves to regulate the political rights of those in the government service, the concerted activity or mass action proscribed must be coupled with the “intent of effecting work stoppage or service disruption in order to realize their demands of force concession.” Wearing similarly colored shirts, attending a public hearing at the GSIS-IU office, bringing with them recording gadgets, clenching their fists, some even badmouthing the guards and PGM Garcia, are acts not constitutive of an (i) intent to effect work stoppage or service disruption and (ii) for the purpose of realizing their demands of force concession.
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
Precisely, the limitations or qualifications found in Section 5 of CSC Resolution No. 02-1316 are there to temper and focus the application of such prohibition. Not all collective activity or mass undertaking of government employees is prohibited. Otherwise, we would be totally depriving our brothers and sisters in the government service of their constitutional right to freedom of expression. Government workers, whatever their ranks, have as much right as any person in the land to voice out their protests against what they believe to be a violation of their rights and interests. Civil Service does not deprive them of their freedom of expression. It would be unfair to hold that by joining the government service, the members thereof have renounced or waived this basic liberty. This freedom can be reasonably regulated only but can never be taken away.
FREEDOM OF INFORMATION
Section 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law. Now this case of CenPEG vs COMELEC involves freedom of information refers to the matter of disclosure of the source code of the automated national and local elections of 2010. The source code is actually as described in this case the readable representation of the instructions on how the machine would work during the elections. In simple terms, the SC even likened it to a blueprint of instructions or a recipe if you would want to be more simple about it on how the machine would read and eventually count, canvass and eventually transmit the votes. Freedom of information-- the petitioner here wanted to examine the source code. The COMELEC, however, failed to make the source code available until the source code was delivered and deposited with the Banko Sentral ng Pilipinas. It was too late because the elections have already been conducted. But still in this petition for mandamus, the SC granted the petition compelling the COMELEC to disclose the source code of the AES technology for the automated elections. Rightfully so because this will be the same source code, perhaps, that we will be using in the 2013 elections. G.R. No. 189546 September 21, 2010 CENTER FOR PEOPLE EMPOWERMENT IN GOVERNANCE, vs.COMMISSION ON ELECTIONS,
Election System (AES) technologies it used in the 2010 national and local elections. The Court finds the petition and this last manifestation meritorious. The pertinent portion of Section 12 of R.A. 9369 is clear in that "once an AES technology is selected for implementation, the Commission shall promptly make the source code of that technology available and open to any interested political party or groups which may conduct their own review thereof." The COMELEC has offered no reason not to comply with this requirement of the law. Indeed, its only excuse for not disclosing the source code was that it was not yet available when CenPEG asked for it and, subsequently, that the review had to be done, apparently for security reason, "under a controlled environment." The elections had passed and that reason is already stale. WHEREFORE, the Court GRANTS the petition for mandamus and DIRECTS the COMELEC to make the source codes for the AES technologies it selected for implementation pursuant to R.A. 9369 immediately available to CenPEG and all other interested political parties or groups for independent review.
ANY MATTER OF PUBLIC INTEREST, NOT COVERED BY NATIONAL SECURITY ISSUES
Now in the freedom of information we always know that what is supposed to be covered here are any matter of public interest which is not covered by national security issues. And even if there is access supposedly to this kind of information, this information is not to be given out for free or if there is an absence of any good intention requiring such information. The freedom of information must have to be related to the so called freedom of expression that would include the speech, media because only an informed individual can intelligibly formulate his thoughts to be able to compete in the free market of ideas. So if the reason for acquiring a certain information of a public office is not based on that good will of intentions, then denial of that request for absolute information would not be a denial of the right to information simply because again there is no bona fide, legitimate purpose for securing that particular information. ACADEMIC FREEDOM
Now the other matter in your outline with respect to freedom of expression would be the academic freedom. We have always related this academic freedom with respect to, in relation to freedom of expression. Because of the aspect or ---- affecting one’s free speech when one enters an institution of higher learning.
This case concerns the duty of the Commission on Elections (COMELEC) to disclose the source code for the Automated
68
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
In Garcia v. The Faculty Admission Committee, Loyola School of Theology (68 SCRA 277 [1975]), the Court had occasion to note the scope of academic freedom recognized by the Constitution as follows: (I)t is to be noted that the reference is to the 'institutions of higher learning' as the recipients of this boon. It would follow then that the school or college itself is possessed of such a right. It decides for itself its aims and objectives and how best to attain them. It is free from outside coercion or interference save possibly when the overriding public welfare calls for some restraint. It has a wide sphere of autonomy certainly extending to the choice of students. This constitutional provision is not to be construed in a niggardly manner or in a grudging fashion. That would be to frustrate its purpose, nullify its intent. xxx "To clarify further the distinction between the freedom of the university and that of the individual scholar, he says: "The personal aspect of freedom consists in the right of each university teacher recognized and effectively guaranteed by society to seek and express the truth as he personally sees it, both in his academic work and in his capacity as a private citizen. Thus the status of the individual university teacher is at least as important, in considering academic freedom, as the status of the institutions to which they belong and through which they disseminate their learning."'
what subjects to teach, what courses to offer, who to hire as part of the members of the faculty, who to admit to study in the institution.
That goes with it the discretion to determine what are the reasonable rules for engagement of the members of the faculty as well as reasonable rules for admission and continued admission of its students. That would also include the right to form its own objectives, mission, what its policies are in relation to running the institution of higher learning. ACADEMIC FREEDOM WITH RESPECT TO THE TEACHERS
The second would be with respect to the teachers, the members of the faculty because the members of the faculty would have their academic freedom in relation to the way they teach the subject, the way they would want to impart their knowledge to their students, they way they handle their particular sections or subjects.
He likewise quoted from the President of the Queen's University in Belfast, Sir Eric Ashby: "'The internal conditions for academic freedom in a university are that the academic staff should have de facto control of the following functions: (i) the admission and examination of students; (ii) the curricula for courses of study; (iii) the appointment and tenure of office of academic staff; and (iv) the allocation of income among the different categories of expenditure.
And in the interest of their higher learning, they are supposed to be protected also with respect to the results of any studies that they may have done in relation to their further studies on account of their being members of the faculty without fear of retribution from the school for any mistake or error that may have been caused on account of that particular study.
It would be a poor prospect for academic freedom if universities had to rely on the literal interpretation of their constitutions in order to acquire for their academic members control of these four functions, for in one constitution or another most of these functions are laid on the shoulders of the law governing body .'" XXXX
Of course if results of the research were, for example, or a paper based on a research is plagiarised or something done to come up with a false result, then that would not be protected under academic freedom
It is the business of a university to provide that atmosphere which is most conducive to speculation, experiment and creation. It is an atmosphere in which there prevail the four essential freedom of a universityto determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study"' (Emphasis supplied; citing Sinco, Philippine Political Law, 491, (1962) and the concurring opinion of Justice Frankfurter in Sweezy v. New Hampshire (354 US 234 [1957]).
FREEDOM WITH RESPECT TO THE STUDENTS
Academic freedom has practically types or components. ACADEMIC FREEDOM OF THE INSTITUTION
The first would be academic freedom of the institution. The right of the institution to decide for itself:
69
1. 2. 3. 4.
The third which is mostly related to freedom of expression is that of the students. Because there have been several cases in the past decided on which should prevail- the right of the students to freely express themselves in joining activities in redress of their grievances or whether the school has the right to discipline them according to the reasonable rules of the school. Now, it’s a given that when students enter a school or institutions for higher learning would not divest themselves of their right to freedom of expression. They would always continue to have the right to express themselves. But since everything is not absolute, they must be subjected to reasonable rules of the school with
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
respect to when they would be able to express their sentiments or thoughts on a particular issue. Again, for so long as these reasonable regulations are imposed by the school at least are content neutral restrictions then they would not be considered to be unreasonable regulations on the content of the speech. That is why the school would always require that the students would have to express their grievances or conduct rallies or similar activities in areas of the school were the holding of regular classes would not be disturbed. Of course these students engaged in these activities would not also be allowed without fear of penalty to disrupt the holding of regular classes because the other students who are in their classes would also have the right to continue their study in that institution of higher learning. So there would always be that clash in that particular context. Now when the students under the Magna Carta would have the right to be allowed enrolment in a school and also allowed re enrolment until the full completion of the course requirement to earn a degree. These are subject to reasonable rules of academics as well as rule on behaviour or rules of discipline in school. Everything is supposed to have been given at the time of engagement in the sense that they are admitted to study in the institution of higher learning. So that the students cannot later on complain that they were proceeded against and penalized accordingly based on the rules they do not know. I think after some time for those who studied here in the Ateneo undergraduate courses, before the males did not have uniforms. But a certain time they have required the freshmen light blue colored upper garment. Everybody now is wearing that, for the males at least. And I think students have been made to sign an acknowledgement, furnished with, read of and understood the rules respecting the academic rules. Now in relation to that is the procedural due process in the institutions of higher learning. When the students supposed to be proceeded against by the school for violations rules whether academic or rules of discipline. In academic rules, there’s not much discussion because it’s as simple as you make the grade or you don’t. There’s no such thing as the holding of a hearing, investigation you would be made to explain yourself because you have been heard when you took the exam. That’s the opportunity to be heard already ☺ and during the exam you were supposed to give all the evidence why
70
you should pass the subject and not fail the subject. So everything is given for you to explain or even allowed you to attach your countervailing evidence if there is. But for violation of the school’s rules on discipline, you always follow that procedural due process. It has been applied in several cases already. One of the landmark cases is that of the Ateneo involving fraternity Aquila Legis where the SC said that the respondent student must be furnished with the charge in writing, given the opportunity to present his evidence. There must be a hearing conducted where the parties be allowed to offer evidence. Although, there is no allowance for cross examination. The investigating committee must act independently and must also decide the case based on the evidence on record adduced by the parties. These are the minimum requirements for procedural due process when the school for higher learning will impose sanctions upon a student.
ADMU vs Capulong G.R. No. 99327 May 27, 1993 Corollary to their contention of denials of due process is their argument that it is Ang Tibay case 25 and not theGuzman case which is applicable in the case at bar. Though both cases essentially deal with the requirements of due process, the Guzman case is more apropos to the instant case, since the latter deals specifically with the minimum standards to be satisfied in the imposition of disciplinary sanctions in academic institutions, such as petitioner university herein, thus: (1) the students must be informed in writing of the nature and cause of any accusation against them; (2) that they shall have the right to answer the charges against them with the assistance of counsel, if desired: (3) they shall be informed of the evidence against them (4) they shall have the right to adduce evidence in their own behalf; and (5) the evidence must be duly considered by the investigating committee or official designated by the school authorities to hear and decide the case. It cannot seriously be asserted that the above requirements were not met. When, in view of the death of Leonardo Villa, petitioner Cynthia del Castillo, as Dean of the Ateneo Law School, notified and required respondent students on February 11, 1991 to submit within twenty-four hours their written statement on the incident, 27 the records show that instead of filing a reply, respondent students requested through their counsel, copies of the charges. 28While of the students mentioned in the February 11, 1991 notice duly submitted written statements, the others failed to do so. Thus, the latter were granted an extension of up to February 18, 1991 to file their statements. Indubitably, the nature and cause of the accusation were adequately spelled out in petitioners' notices dated February 14 and 20, 1991. 30 It is to be noted that the February 20, 1991 letter
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pe •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Panga ndatun•Pinoon•Go•Pangandaman• ndaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Maga •Dumagan•Limbo-Cabuhat •Belen•Rubinos•Magabilen•Trinidad•Ley bilen•Trinidad•Leyes•Givero•Travilla• es•Givero•Travilla•Elman•Paras•Tinapa Elman•Paras•Tinapay•Orcullo•Macla•La y•Orcullo•Macla•Ladeza deza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
which quoted Rule No. 3 of its Rules of Discipline as contained in the Ateneo Law School Catalogue was addressed individually to respondent students. Petitioners' notices/letters dated February 11, February 14 and 20 clearly show that respondent students were given ample opportunity to adduce evidence in their behalf and to answer the charges leveled against them. The requisite assistance of counsel was met when, from the very start of the investigations before the Joint Administration FacultyStudent Committee, the law firm of Gonzales Batiler and Bilog and Associates put in its appearance and filed pleadings in behalf of respondent students. Respondent students may not use the argument that since they were not accorded the opportunity to see and examine the written statements which became the basis of petitioners' February 14, 1991 order, they were denied procedural due process. 31 Granting that they were denied such opportunity, the same may not be said to detract from the observance of due process, for disciplinary cases involving students need not necessarily include the right to cross examination. An administrative proceeding conducted to investigate students' participation in a hazing activity need not be clothed with the attributes of a judicial proceeding. A closer examination of the March 2, 1991 hearing which characterized the rules on the investigation as being summary in nature and that respondent students have no right to examine affiants-neophytes, reveals that this is but a reiteration of our previous ruling inAlcuaz. Respondent students' contention that the investigating committee failed to consider their evidence is far from the truth because the February 14, 1992 ordered clearly states that it was reached only after receiving the written statements and hearing the testimonies of several witnesses. 33 Similarly, the Disciplinary Board's resolution dated March 10, 1991 was preceded by a hearing on March 2, 1991 wherein respondent students were summoned to answer clarificatory questions.
While student again has the right to continue re-enrolment at a completion of a degree, but of course, that would be... it would always remain as the right of the school under its academic freedom to determine who to allow to study based on its reasonable rules on its academics... THREE-FLUNK RULE
As to the right of the student to allow enrolment, that has long been decided and one of the cases is the case of DECS vs. Sandiego, where the “three-flunk rule” in the examinations for admission in a Medical school in the Philippines, has been to test the argument of the respondent... is that a student has the right to be admitted to a school of higher learning or a medical school for that matter. But the SC said, ruling in favor of DECS, that a three-flunk rule is reasonable considering that the profession eventually coming coming out from the medical school has a close link to a public interest issue which is public health. Stated differently,
71
the closer the link of a profession to a public interest or a public interest matter, the greater there is the state regulation allowable. So that if it were to be a different kind of profession, there may not be stringent government regulation given for admission in the school. But if it is a school or a degree which has closer relation to public interest matter, then there may be greater state regulation allowable as to who shall be admitted. And also, the school itself has the right under its academic freedom to impose reasonable rules for admission. Some would require as to take entrance examinations and there is the requirement of passing the entrance exam, is ordinarily considered to be reasonable regulations or rule for admission. So, student knows he has a right under academic freedom to enrol in the institution, he must have to comply with reasonable regulations imposed. DECS v San Diego (1989) FACTS: Roberto Rey San Diego, the private respondent is a graduate of the University of the East with a degree of Bachelor of Science in Zoology. The petitioner claims that he took the NMAT three times and flunked itas many times. ISSUE: Whether the private respondent who has thrice failed the National Medical Admission Test (NMAT) is entitled to take it again as it is a requirement for admission to any Medical School in the Philippines. He invoked of his constitutional rights to academic freedom and quality education, squarely challenging the constitutionality of MECS Order No. 12, Series of 1972. HELD: The private respondent cannot take the NMAT again and pursue his medical profession because of the following grounds: 1. For the purpose of gauging at least initially by the admission test and by the three-flunk rule, a student shall not be allowed to take the NMAT again after three successive failures. 2. The State ensures that medical profession is not permeated by incompetents to whom patients may unwarily hand over their lives and health. 3. It is not enough to simply invoke the right to quality education as a guarantee of the Constitution, while one has the right to aspire to be a doctor, he does not have the constitutional right to be a doctor; one must show that he is entitled to it because of his preparation and promise. 4. The conflict that the challenged rule violates the equal protection clause is not well-taken. Conformable to Article III, Section 1 of the Constitution, a law does not have to operate with equal force on all person or things.
In an old case, there is this case of Garcia vs. Faculty of Admission, Admission , faculty of admission is the School of Theology of
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pe •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Panga ndatun•Pinoon•Go•Pangandaman• ndaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Maga •Dumagan•Limbo-Cabuhat •Belen•Rubinos•Magabilen•Trinidad•Ley bilen•Trinidad•Leyes•Givero•Travilla• es•Givero•Travilla•Elman•Paras•Tinapa Elman•Paras•Tinapay•Orcullo•Macla•La y•Orcullo•Macla•Ladeza deza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
Ateneo, there is this woman who would want to be admitted to that school of theology. Per practice or traditions for the Catholic Church, Schools for Theologies are always reserved for biologically male persons. ☺ (at least biologically....) if you are biologically female, you may not force yourself into admission for school of theology, at least for catholic church. OKAY... Now, this case of Mercado vs. Ama, Ama, this case involves AMA members of faculty or teachers who were terminated by the school based on non-renewal of the fixed term contracts. The argument of the school was that, they have the right under its academic freedom to engage the services of a teacher for whom to employ as members of the faculty. But the question is that, is their claim of academic freedom proper? SC looked into the basis of the claim of petitioners, the petitioners here won in the NLRC and eventually lost in the CA. The SC reversed the CA ruling and decided in their favor of the faculty members. Here is the question of whether these teachers can be terminated based on non-renewal of contract or whether they could be terminated because of non-regularization after the probationary status. We all know that in the teaching profession under the Magna Carta for teachers, the probationary period is how long? THREE YEARS... 6 semesters actually... that would be 3 school years. Now these teachers involved were hired for 7 trimesters (AMA follows trimester, 1 trimester is 1/3) almost 2 years and 1/3... Short for the 3 years. AMA terminated them on two grounds: 1. Non-renewal of fixed term contract; and 2. The contracts, they will never be regularized because they fail to pass the probationary status. There was a “test”, they failed to pass the test... the Performance Appraisal System for Teachers (PAST) and other requirements for regularization that the school implements to maintain its high academic standards. So they were terminated for separate concerns. The SC said that there may be a problem if the probationary status period overlapped the fixed term status. We all know that as way back as the Brent Ruling, a fixed term contract is allowed, so there is no regularization or expectation of regularization after the expiration of the fixed term contract. You are agreed for a period of 1-year, you’re a temporary faculty because the regular faculty left for further studies abroad. So you’re hired for a fixed term of 1 year. If the period expires, automatically you lose your work, and you are therefore not considered to be regular or there is no violation of security of tenure. The problem here is that, the person is supposed to have been hired for a fixed term as provided in their probationary status, like, you’re in contract for 3 years, how would, SC asked,
72
if that 3 year period as fixed in the contract... is that probationary also or is it a fixed term? SC said that when, the fix term overlaps the probationary status, then the probationary status required under Article 281 of the Labor Code, that an employee must have to be regularized after the probationary status unless, 1. he has been informed of what must be achieved during the probationary status otherwise, he will not be regularized; 2. Second, the employees was not able to meet those standards conditioned to be met at that time of service. So since, the employees here were serviced or both there’s an overlapped within the fixed term and the probationary status by law, then the SC SC said that it should be treated as probationary status. And that the failure of AMA’s duty to inform them of the reasonable requirements to pass the probationary status, would make their termination or the claim of academic freedom of school or institution of higher learning was not considered as valid.
MERCADO VS AMA (2010) FACTS: The teachers in this case were on probationary status on fixed term contracts from the time they were employed and until the expiration of their teaching contracts. Subsequently, before they were able to complete three consecutive years of service, they were informed by the school that with the expiration of their contract to teach, their contract would no longer be renewed. Hence, they filed a complaint for illegal dismissal. The Labor Arbiter ruled that the teachers were illegally dismissed and stated that Article 281 of the Labor Code on probationary employment applied to the case. On appeal, the NLRC ruled that the applicable law is Section 92 of the Manual regulations for Private Schools and not Article 281 of the Labor Code. However, the NLRC affirmed the Labor Arbiters decision since the teachers were terminated on the basis of standards which were made known to them only near the end of their probationary period. On a petition for certiorari, the Court of Appeals reversed the decision of the NLRC because the teachers were not actually dismissed in that their contracts merely expired. RULING: The Supreme Court stated that nothing is illegitimate in defining the school-teacher on fixed term basis. The school, however, cannot forget that its s ystem of fixed-term contract is a system that operates during the probationary period and for this reason is subject to the terms of Article 281 of the Labor Code. Unless this
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pe •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Panga ndatun•Pinoon•Go•Pangandaman• ndaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Maga •Dumagan•Limbo-Cabuhat •Belen•Rubinos•Magabilen•Trinidad•Ley bilen•Trinidad•Leyes•Givero•Travilla• es•Givero•Travilla•Elman•Paras•Tinapa Elman•Paras•Tinapay•Orcullo•Macla•La y•Orcullo•Macla•Ladeza deza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
reconciliation is made, the requirements of this Article on probationary status would be fully negated as the school may freely choose not to renew contracts simply because their terms have expired. Given the clear constitutional and statutory intents, the Supreme Court concluded that in a situation where the probationary status overlaps with a fixed-term contract not specifically used for the fixed term it offers, Article 281 should assume primacy and the fixed-period character of the contract must give way. To highlight what the Supreme Court mean by a fixed-term contract specifically used for the fixed term it offers, a replacement teacher, for example, may be contracted for a period of one year to temporarily take the place of a permanent teacher on a one-year study leave. The expiration of the replacement teacher's contracted term, under the circumstances, leads to no probationary status implications as she was never employed on probationary basis; her employment is for a specific purpose with particular focus on the term and with every intent to end her teaching relationship with the school upon expiration of this term. While the Supreme Court can grant that the standards were duly communicated to the teachers and could be applied beginning the 1st trimester of the school year 2000-2001, glaring and very basic gaps in the school's evidence still exist. The exact terms of the standards were never introduced as evidence; neither does the evidence show how these standards were applied to the teachers. Without these pieces of evidence the Supreme Court had nothing to consider and pass upon as valid or invalid for each of the teachers. Inevitably, the non-renewal (or effectively, the termination of employment of employees on probationary status) lacks the supporting finding of just cause that the law requires and, hence, is illegal.
“ln my experience, Nick, lessons not learned in blood are soon forgotten” -Clyde Shelton, Law Abiding Citizen FREEDOM OF RELIGION
Section 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights. Religion: any system of belief, worship, conducts, often involving ethics, which includes the freedom not to believe. The Freedom of religion is found in several provisions in the constitution. The first is the separation of the Church and the State.
73
SEPARATION OF THE CHURCH AND STATE
ARTICLE II, Section 6. The separation of Church and State shall be inviolable. Already understood in its original concept, the separation of the Church and State, prohibits the State from intruding into religious matters. But it does not work the other way around, there is no such thing as religion prohibiting from engaging itself into political matters, because by origin the church has always been intruding into the realm of politics, as it is today. EXEMPTION FROM REALTY TAXES
ARTICLE VI, Section 28. 1. xxx 2. xxx 3. Charitable institutions, churches and personages or convents appurtenant thereto, mosques, non-profit cemeteries, and all lands, buildings, and improvements, actually, directly, and exclusively used for religious, charitable, or educational purposes shall be exempt from taxation. 4. Xxx There can also be no payment of public funds for religious services, except for those ministers, preacher who have been employed in the government penal institutions, orphanage. They are paid not because they are religious people, but because of the tasks. And we have mentioned before, there was a question in the bar, several years ago. OFWs in Hong Kong who converge in public squares every Sunday, for “tsismis”. ☺ and in order to give in to their religious needs, the OWWA, decided to engage the services of a Catholic Priest, to deliver mass every Sunday. Can this religious service be valid? … BELIEF AND ACTION TEST
Now the scope of the freedom would refer to what is known as the BELIEF AND ACTION TEST. The first is the BELIEF, the second is the ACTION. In BELIEF, whatever is in the realm of the thought that is supposed to be absolutely protected. There is no such thing as
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
reasonable regulation allowable if it remains in the realms of thought. In ACTION however, to act in accordance to one’s belief, then it may be subject to reasonable regulation under the Police Power. The right is not absolute. The prohibitions are as follows: 1.Non-establishment clause 2.Free exercise of Religion
so, as you may have seen, the bigger religious groups or sects, we have are those who encourage freedom of thought and freedom conscience of its members. For those who have these thought and conscience imposed on them, they may be good in numbers but they are not good in (……) The Philippines is how many percent Catholics? (80% according to Wikipedia, citing the NSO Census of 2000 as its source.)
(School District v. Schempp, 374 US 203) The non-establishment clause does not depend upon any showing of direct governmental compulsion. It is violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce non-observing individuals or not. The test of compliance with the non-establishment clause can be stated as follows: What are the purposes and primary effect of the enactment? If either is the advancement or inhibition of religion, the law violates the non-establishment clause. Thus, in order for a law to comply with the non-establishment clause, two requisites must be met. First, it has a secular legislative purpose. Second, its primary effect neither advances nor inhibits religion.
Government Neutrality should be summarized as follows: 1. Government must not prefer one religion or no-religion over another 2. Government funds must not be applied for religious purposes 3. Government action must not aid religion 4. Government action must not result into excessive entanglement with religion.
The free exercise of religion clause withdraws from legislative power the exertion of any restraint on the free exercise of religion. In order to show a violation of this clause, the person affected must show the coercive effect of the legislation as it operates against him in the practice of his religion. While the freedom to believe (non-establishment) is absolute, the moment such belief flows over into action, it becomes subject to government regulation.
For the non-establishment clause, there are acts permitted and these are called as non-discriminatory concessions (?) and these are the cases mentioned earlier under the Constitutions exemptions on realty taxes, public schools (primary and secondary schools) the constitution allows it provided it would comply with the requirements, that there is no additional expenditure allowing religious instructions in public schools.
NON-ESTABLISHMENT CLAUSE
They must also be based on the religion, where the child belongs, upon the written request and approval by the administrators and parents, and there shall be no discrimination.
1. 2.
Prohibits excessive governmental entanglement with religious institutions and; Government endorsement or disapproval of religion FREE EXERCISE CLAUSE
Prohibits the government from inhibiting religious beliefs with imposition of penalties on (such) religious beliefs. The concept of freedom of religion with respect to the participation or the entanglement of the government is that the government must have to be an innocent by-stander with respect to religion and religious practices.
No problem with private schools, they are not regulated as those with the public primary and secondary schools. In the Ateneo, we have religious instructions. In the Law School, we also have Christian Ethics, at least man lang meron. ☺ The test used normally when the issue pertains to nonestablishment, is the so called benevolent neutrality or accommodation, again the State is considered to be innocent bystander with respect to the exercise of the different religions which is practiced among the different sects. There should be a wall of separation between the Churches and the State. OPERATION OF SECTARIAN SCHOOLS
Religion can be best achieved by the volunteerism of its members not because the State has imposed upon them to be religious or from prohibiting them from being religious. Rightfully
74
ARTICLE XIV, Section 2. The State shall: 1. XXX
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
2. Establish and maintain, a system of free public education in the elementary and high school levels. Without limiting the natural rights of parents to rear their children, elementary education is compulsory for all children of school age; RELIGIOUS INSTRUCTIONS IN PUBLIC SCHOOLS
ARTICLE XIV, Section 3. 1. XXX 2. XXX 3. At the option expressed in writing by the parents or guardians, religion shall be allowed to be taught to their children or wards in public elementary and high schools within the regular class hours by instructors designated or approved by the religious authorities of the religion to which the children or wards belong, without additional cost to the Government. CIVIL CODE, Article 359. The government promotes the full growth of the faculties of every child. For this purpose, the government will establish, whenever possible: (1) Schools in every barrio, municipality and city where optional religious instruction shall be taught as part of the curriculum at the option of the parent or guardian; PUBLIC AID TO RELIGION
ARTICLE VI, Section 29. 1. XXX 2. No public money or property shall be appropriated, applied, paid, or employed, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian institution, or system of religion, or of any priest, preacher, minister, other religious teacher, or dignitary as such, except when such priest, preacher, minister, or dignitary is assigned to the armed forces, or to any penal institution, or government orphanage or leprosarium. 3. XXX Aglipay vs. Ruiz (Not Discussed by Atty. Montejo) In Aglipay v. Ruiz, this Court had occasion to state that the government should not be precluded from pursuing valid objectives secular in character even if the incidental result would be favorable to a religion or sect. It has likewise been held that the statute, in order to withstand the strictures of constitutional prohibition, must have a secular legislative purpose and a primary effect that neither advances nor inhibits religion. Assessed by these criteria, Republic
75
Act No. 3350 cannot be said to violate the constitutional inhibition of the "no-establishment" (of religion) clause of the Constitution. Act 4052 contemplates no religious purpose in view. W hat it gives the Director of Posts is the discretionary power to determine when the issuance of special postage stamps would be “advantageous to the Government.” Of course, the phrase “advantageous to the Government” does not authorize the violation of the Constitution; i.e. to appropriate, use or apply of public money or property for the use, benefit or support of a particular sect or church. In the case at bar, the issuance of the postage stamps was not inspired by any sectarian feeling to favor a particular church or religious denominations. The stamps were not issued and sold for the benefit of the Roman Catholic Church, nor were money derived from the sale of the stamps given to that church. The purpose of the issuing of the stamps was to take advantage of an event considered of international importance to give publicity to the Philippines and its people and attract more tourists to the country. Thus, instead of showing a Catholic chalice, the stamp contained a map of the Philippines, the location of the City of Manila, and an inscription that reads “Seat XXXIII International Eucharistic Congress, Feb. 3-7, 1937.”
In the Free exercise clause, the government is prohibited from inhibiting religious beliefs, with imposition of penalties for religious beliefs and practices. Three basic accommodations for Free exercise: 1. MANDATORY ACCOMODATION a. Those which are found to be constitutionally compelled and required by the free exercise clause. 2. PERMISSIVE ACCOMODATION a. Those which are discretionary, that is not required by the free exercise clause, but nonetheless permitted by the establishment clause. 3. PROHIBITED ACCOMODATION a. THOSE WHICH THE RELIGIOUS CLAUSES PROHIBITS, WHICH IS PROHIBITTED (?) b. In this, the establishment prevails over potential accommodation requests. When there is an exercise of an act, the State may prohibit such exercise depending on these 3 accommodations.
Boy Pick-up: Neneng, Hinding hindi kita sasagutin ng OO. Neneng B: Bakit? Boy Pick-up: Kasi, True or False ang tanong mo. Boom!
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
ELMAN, JENIKA TRAVILLA, CHERRYL PENDATUN, DATS DUMAGAN, MENCHIE "What's your road, man?--holyboy road, madman roa d, rainbow road, guppy road, any road. It's an anywhere road for anybody anyhow." ~ Jack Kerouac, On the Road , Part 4, Ch. 1
The important thing is to strive towards a goal which is not immediately visible. That goal is not the concern of the mind, but of the spirit. ~Antoine de Saint-Exupéry, Flight to Arras, 1942
76
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
Agust 24, 2012
Issue: Whether or not school children who are members or a religious sect may be expelled from school for disobedience of R.A. No. 1265 and Department Order No. 8.
FREEDOM OF RELIGION
So we are still under freedom of religion. Now, the multiple test used in the free exercise clause is at least based on the decisions of the SC would be: 1.) Clear and Present Danger - this was applied in discussion on flag salute cases. Remember the case of Ebralinag. This is similarly applied in the discussion on freedom of expression, the question in every case is whether the words used in such circumstances and is in such a nature as to create a clear and present danger that they will make about the serious evil which the state has a right to prevent. If you relate this to the case Ebralinag v. Division Superintendent of Schools of Cebu, is the regulation on flag salute constitutive of a violation of free exercise by reason of the penalty imposable? However the claim of freedom of religion must have to be upheld over that regulation. To put it differently whether to allow the freedom of religion to create a situation that will bring about the evil sought to be avoided. In the old case, the possibility that the citizenry will be composed of un-nationalistic individuals because children were not compelled to salute the flag. In the Ebralinag case it was explained that the evil sought to be avoided is presumed happen will come to pass simply because to be patriotic or nationalist will not be achieved by requiring the children to salute the flag among others. EBRALINAG v. THE DIVISION SUPERINTENDENT OF SCHOOLS OF CEBU G.R. No. 95770 March 1, 1993 Facts: The petitioners in both (consolidated) cases were expelled from their classes by the public school authorities in Cebu for refusing to salute the flag, sing the national anthem and recite the patriotic pledge as required by Republic Act No. 1265 (An Act making flag ceremony compulsory in all educational institutions) of July 11, 1955 , and by Department Order No. 8 (Rules and Regulations for Conducting the Flag Ceremony in All Educational Institutions) dated July 21, 1955 of the Department of Education, Culture and Sports (DECS)making the flag ceremony compulsory in all educational institutions. Jehovah's Witnesses admitted that they taught their children not to salute the flag, sing the national anthem, and recite the patriotic pledge for they believe that those are" acts of worship" or "religious devotion" which they "cannot conscientiously give to anyone or anything except God". They consider the flag as an image or idol representing the State. They think the action of the local authorities in compelling the flag s alute and pledge transcends constitutional limitations on the State's power and invades the sphere of the intellect and spirit which the Constitution protect against official control.
77
Held: No. Religious freedom is a fundamental right which is entitled to the highest priority and the amplest protection among human rights, for it involves the relationship of man to his Creator The sole justification for a prior restraint or limitation on the exercise of religious freedom is the existence of a grave and present danger of a character both grave and imminent, of a serious evil to public safety, public morals, public health or any other legitimate public interest, that the State has a right (and duty) to prevent." Absent such a threat to public safety, the expulsion of the petitioners from the schools is not justified. (Teehankee). The petitioners further contend that while they do not take part in the compulsory flag ceremony, they do not engage in "external acts" or behavior that would offend their countrymen who believe in expressing their love of country through the observance of the flag ceremony. They quietly stand at attention during the flag ceremony to show the irrespect for the right of those who choose to participate in the solemn proceedings. Since they do not engage in disruptive behavior, there is no warrant for their expulsion. The Court is not persuaded that by exempting the Jehovah's Witnesses from saluting the flag, singing the national anthem and reciting the patriotic pledge, this religious group which admittedly comprises a "small portion of the school population" will shake up our part of the globe and suddenly produce a nation "untaught and uninculcated in and unimbued with reverence for the flag, patriotism, love of country and admiration for national heroes" .What the petitioners seek only is exemption from the flag ceremony, not exclusion from the public schools where they may study the Constitution, the democratic way of life and form of government, and learn not only the arts, sciences, Philippine history and culture but also receive training for a vocation of profession and be taught the virtues of "patriotism, respect for human rights, appreciation for national heroes, the rights and duties of citizenship, and moral and spiritual values (Sec. 3[2], Art. XIV, 1987 Constitution) as part of the curricula. Expelling or banning the petitioners from Philippine schools will bring about the very situation that this Court had feared in Gerona . Forcing a small religious group, through the iron hand of the law, to participate in a ceremony that violates their religious beliefs, will hardly be conducive to love of country or respect for dully constituted authorities. Also, the expulsion of members of Jehovah's Witnesses from the schools where they are enrolled violates their right as Philippine citizens, under the 1987 Constitution, to" protect and promote the right of all citizens to quality education . . . and to make such education accessible to all (Sec. 1, Art. XIV).
In the case of Texas vs. Johnson regarding the flag burning issue it has been upheld that such is a valid freedom of expression provided that the flag that you burn is you own, meaning that it is
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
your own property and for so long as you burn your own property which will not result in burning of another person's property that is sufficiently protected under freedom of expression. So the flag is therefore not icon or an object which would be imbued with such interest that it will promote nationalism or patriotism on individual. There are a lot of acts which would ordinarily be shown as disrespect in relation to how flags are tainted in certain national activities. Of course it would be different if it is the flag owned by the state which would be subjected to such acts because that would necessarily show disrespect. Even in the Philippines, we still have that law which would penalize unauthorized use or destruction of Philippine flag which are ordinarily used in the course or conduct of official business. There is a way of disposing a tattered flags which if not followed will subject the person to a criminal liability. The other case is Estrada vs. Escritor, if you remember this case, there was an administrative case for gross immorality involving a Supreme Court employee because of a supposed to be immoral liaison between two married individuals separated from their respective spouses. They have claimed that their association or union is authorized as part of their religious practices and in fact they were able to show that this practice had long been practiced in their religion and there is a document signed by them, supposedly witnessed by their God that their union is a union base on their belief. The SC applied the compelling interest test. We have discussed this already in freedom of expression, that if there is a compelling state interest, the state has the right to protect. The state may regulate the expression, in this case between the exercise of religion. As we have known from our freedom of expression discussion, there must have a compelling interest that must be shown. What that compelling state interest is not defined or contained in an enumerated list of items that would fall under that. It is merely characterized as something preferred like national security, preservation of the lives of multiple individuals and not violating explicit constitutional protection. So if we go by the extreme of your religion. Take for example your religion believes of offering a virgin to your god, we have always said that it may be regulated not only because it is difficult to find one now (just kidding ☺) but because it would result to something that the state has the right to prevent. Nobody is entitled to kill a person; it is said under the Constitution, without due process of law. So even if with the claim of religious right, that this is free exercise -- we believed that we can be saved from all of these if we offer a virgin to our god –
78
that may not be allowable because there is a compelling state interest. Under that compelling state interest in relation to our discussion in freedom of expression we also mentioned that there must have to be showing that the intrusion or regulation of the government is necessary and that It is the least intrusive measure on the free exercise to be an allowable regulation. If the means to regulate in order to protect the state interest is not the least intrusive, that regulation cannot be also considered as valid. So there must have to be a determination of the court on whether or not of all the available means to protect the compelling state interest, this is the least intrusive of all these measures. In the case of Estrada, the SC clarified that they were charge of an administrative case, again, it would have been different if they were charge with a criminal case, say for bigamy or concubinage, because the state has the right to protect its citizens from commission of offenses. It must remain clear that, it may be different if they have been charge criminally because then again, the state has always have the right to ensure that the task to protect its citizens is done. ESTRADA v. ESCRITOR AM No. P ‐02‐1651 June 20, 2000 Facts: Escritor is a court interpreter since 1999 in the RTC of Las Pinas City. She has been living with Quilapio, a m an who is not her husband, for more than twenty five years and had a son with him as well. Respondent’s husband died a year before she entered into the judiciary while Quilapio is still legally married to another woman. Complainant Estrada requested the Judge of said RTC to investigate respondent. According to complainant, respondent should not be allowed to remain employed therein for it will appear as if the court allows such act. Respondent claims that their conjugal arrangement is permitted by her religion—the Jehovah’s Witnesses and the Watch Tower and the Bible Trace Society. They allegedly have a ‘Declaration of Pledging Faithfulness’ under the approval of their congregation. Such a declaration is effective when legal impediments render it impossible for a couple to legalize their union. Issue: Whether or Not the State could penalize respondent for such conjugal arrangement. Held: No. The State could not penalize respondent for she is exercising her right to freedom of religion. The free exercise of religion is specifically articulated as one of the fundamental rights in our Constitution. As Jefferson put it, it is the most inalienable and sacred of human rights. The State’s interest in enforcing its prohibition cannot be merely abstract or symbolic in order to be sufficiently compelling to outweigh a free exercise claim. In the
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
case at bar, the State has not evinced any concrete interest in enforcing the concubinage or bigamy charges against respondent or her partner. Thus the State’s interest only amounts to the symbolic preservation of an unenforced prohibition. Furthermore, a distinction between public and secular morality and religious morality should be kept in mind. The jurisdiction of the Court extends only to public and secular morality. The Court further states that our Constitution adheres the benevolent neutrality approach that gives room for accommodation of religious exercises as required by the Free Exercise Clause. This benevolent neutrality could allow for accommodation of morality based on religion, provided it does not offend compelling state interests. Assuming arguendo that the OSG has proved a compelling state interest, it has to further demonstrate that the state has used the least intrusive means possible so that the free exercise is not infringed any more than necessary to achieve the legitimate goal of the state. Thus the conjugal arrangement cannot be penalized for it constitutes an exemption to the law based on her right to freedom of religion.
Remember the discussion on facial invalidation or void for vagueness, in criminal offenses, that may not be ordinarily allowed, unless it involves free speech. Now religion is closely related to expression because freedom of religion is placed under the category of freedom of thought or conscience. So, while in the Estrada case administrative liability is observed to be nonexistent during the exercise of religious right, in criminal cases, there must have to be a greater scrutiny of whether or not the claim is a valid claim. Now, in this compelling state interest there are 3 questions to be asked: 1.) Is the claim for religious right a sincere claim? – Apparently, there must be sincerity of the claim of the exercise of religious right although the court will not look into its truthfulness or validity. Sincerity because it must have to be practiced and the practice have been established already, a standard practice of the religion and that person claiming exemption from the coverage of the state regulation must have been practicing that religion. The most common is been akin to a joke: They say that can I convert my religion from Christianity to Islam so that I may be allowed to marry more than once. I don’t know why they would want to marry more than once, having one is difficult enough, they want more difficulty.
3.) Least Intrusive of all means. Those three questions must have to be answered in order that a valid claim for free exercise may be vested. FREEDOM TO PROPAGATE RELIGIOUS DOCTRINES
The usual question here in relation to propagation of religious doctrines is the requirement in acquiring permit prior to dissemination of religious publication. One must distinguish between what is regularly required as part of the conduct of business. Like a requirement of a business permit. The licensing requirement there must not be confused with the licensing to propagate in relation to free exercise and the licensing in relation to the privilege of conducting business. So, Daugthers of St. Paul which sells religious publication as well as religious items, is that entity exempt from the payment of license fees or permits? So one must be able to distinguish that. The other is in the case of Iglesia ni Cristo, the ratings and classification of television show involving religious programs. The SC has always upheld the power of the MTRCB over motion pictures and television shows and the law creating the MTRCB as well as the powers granted therein have not yet been declared as unconstitutional. As mentioned before, the only problem with the classification board is that, there are not enough medium or places by which those rated other than the usual can be publicly exhibited or shown. The ratings and classification is not a form of censorship yet it can be shown in the appropriate place that is consistent with the ratings of the firm. EXEMPTION FROM UNION SHIP IN RE FREEDOM TO ASSOCIATE
It has always been allowed that members of certain religious groups who are not allowed to associate themselves other than their own religious groups are not covered by the terms of the union shop clauses. In admission however, they are not prohibited from associating by themselves by reason of their religious beliefs and aspiration. Again in all of these, the sincerity of the claim must have to be established. It cannot be like a rule just promulgated yesterday for the convenience of the members. It must be established in the religious dogma or being as practiced in that particular religion.
2.) Whether there is sufficient compelling interest?
79
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
DISQUALIFICATION FROM LOCAL ELECTIVE OFFICE
would end up being the Secretary of Education it will become more expensive. ☺
This old case of Pamil vs. Teleron discuss the old provision of the Revised Administrative Code that there is a disqualification for priest or religious persons to participate in elections or to be elected to the public office because of the Constitutional principle of the separation of the Church and the state.
One matter in freedom of religion is the conscientious objector . So what is a consensus objector? This has relation to an individual who has claim the right to refuse to perform military service on the grounds of freedom of thought, conscience, and/or religion. Perhaps, the most famous of whom is Cassius Clay because he was about to be drafted in Vietnam War, he changed his religion to Islam and became Muhammad Ali for which the dodged the drafting and he was penalized accordingly. He was made to suffer and penalized and jailed. That, I think has not happened in the Philippines because we have no force drafting in the military. Since the martial law, the military has been the blatant source of employment and it has increase in number ever since, and because the maximum allowable age for service has been fixed. Despite the retirement of previous ones there are so many more enlisted throughout the year, so there is no need to forcible draft everybody to perform a military service.
PAMIL v. TELERON G.R. No. L-34854 November 20, 1978 Facts: Private respondent, Father Margarito R. Gonzaga, was, in 1971, elected to the position of municipal mayor of Alburquerque, Bohol. Therefore, he was duly proclaimed. A suit for quo warranto was then filed by petitioner, himself an aspirant for the office, for his disqualification based on this Administrative Code provision: "In no case shall there be elected or appointed to a municipal office ecclesiastics, soldiers in active service, persons receiving salaries or compensation from provincial or national funds, or contractors for public works of the municipality." The suit did not prosper, respondent Judge sustaining the right of Father Gonzaga to the office of municipal mayor. He ruled that such statutory ineligibility was impliedly repealed by the Election Code of 1971. The matter was then elevated to this Tribunal by petitioner. It is his contention that there was no such implied repeal, that it is still in full force and effect. Thus was the specific question raised. Issue: WON the disqualification of the respondent based on Administrative Code provision Constitutional. Held: The challenged Administrative Code provision, certainly insofar as it declares ineligible ecclesiastics to any elective or appointive office, is, on its face, inconsistent with the religious freedom guaranteed by the Constitution. To so exclude them is to impose a religious test. Here being an ecclesiastic and therefore professing a religious faith suffices to disqualify for a public office. There is thus an incompatibility between the Administrative Code provision relied upon by petitioner and an express constitutional mandate.
But since the Revised Administrative Code has been repealed and we have with respect to local government official the Local Government Code, the national official in the Constitution there seems to be no prohibition now on elective offices that religious persons cannot run or even elected to office. The only effect is that, for the church policy is that they must have to resign or take a leave so that there will be no confusion when they are sitting in that capacity, that they are there to act as public officers and not as officers of their respective religion. In the Cabinet now we have Bro. Armin A. Luistro of the Department of Education. Perhaps the president believes that the Jesuits could offer better policy in the Education or perhaps they believe that if Jesuit
80
Now this has been allowed in some jurisdiction but generally, again, the claim is supposed to be sincere. If you were to avoid forced drafting into the military because of the religious belief, you are a conscientious objector, your freedom of religion would prevent you from joining the service because it against your religion. But then again, it is allowed in certain jurisdiction but certainly not in the state because they can compel you to render civilian service. Just compulsory service. You must have heard of the National Guard, the National Guard that is used to be kept as a reserve force for the purposes of augmenting regular armed forces of the US if there is a local emergency or strike. In need not be a war, if there is a national emergency or there is a need for military personnel to participate in a search and rescue operations or similar activities. They can call in the National Guard and these are technically military service. Clay v. United States 403 U.S. 698 June 28, 1971 In 1966, Muhammad Ali (formerly Cassius Clay) was classified as 1-A (eligible for service in the U.S. armed forces), two years after being classified as I-Y (not qualified), due to an amendment in his mental aptitude test. In response, Ali applied for conscientious objector status but was turned down by both his local draft board and the State Appeal Board. According to existing statutes, the matter was then referred to the Justice Department for an advisory recommendation and the FBI, in preparation for a hearing on "the character and good faith of the [petitioner's] objections," conducted more than 35 interviews with Ali's family, friends, neighbors, and business and religious associates. The hearing officer at Ali's hearing, after listening the testimony of Ali's parents, one of his
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
attorneys and Ali himself (and after reviewing the report generated by the FBI to which he had access), recommended to the Justice Department that Ali be granted his conscientious objector status. However, the Justice Department, in a letter to the Appeal Board, advised against granting such status. The Board honored this request without stating the reasons it was basing its decision. According to the U.S. Supreme Court: "That denial, for which no reasons were ever given, was, as we have said, based on a recommendation of the Department of Justice, overruling its hearing officer and advising the Appeal Board that it 'finds that the registrant's conscientious-objector claim is not sustained and recommends to your Board that he be not [so] classified.' This finding was contained in a long letter of explanation, from which it is evident that Selective Service officials were led to believe that the Department had found that the petitioner had failed to satisfy each of the three basic tests for qualification as a conscientious objector." The three basic tests for conscientious objector status that the Justice Department letter argued Ali did not meet were: 1.
2.
3.
an applicant's objection must be against participating in war in any form, not just a particular war (the Justice Department letter indicated that Ali's objection was "limited to military service in the Armed Forces of the United States"); an applicant's objection to service in the military must be based on religious training and belief (the Justice Department letter stated that Ali's "claimed objections to participation in war i nsofar as they are based upon the teaching of the Nation of Islam rests on grounds which primarily are political and racial"); and that an applicant's objection must be sincere (the Justice Department letter stated that Ali "has not shown overt manifestations sufficient to establish his subjective belief where, as here, his conscientious-objector claim was not asserted until military service became imminent")
Now, before the Supreme Court, the government conceded that Muhammad Ali's objection was based upon the "religious training and belief" of the Nation of Islam after all, and that his reasons for doing so were indeed sincere (and the Supreme Court agreed with the government's revised thinking). However, the government continued to argue that Muhammad Ali was not against all war, but only wars that were not declared by Allah, which in fact Ali had personally stated many times. However, the Supreme Court found that: "Since the Appeal Board gave no reasons for its denial of the petitioner's claim, there is absolutely no way of knowing upon which of the three grounds offered in the Department's letter it relied. Yet the Government now acknowledges that two of those grounds were not valid. And the Government's concession aside, it is
81
indisputably clear, for the reasons stated, that the Department was simply wrong as a matter of law in advising that the petitioner's beliefs were not religiously based and were not sincerely held."
LIBERTY OF ABODE and of Changing the same
There is not much change there. Liberty of abode and of changing the same can be affected by lawful order of the court. THE RIGHT TO TRAVEL
The reasons for infringing it would be interest of national security, public safety and public health. These are not limitations on the court, the court can actually impose its powers and jurisdiction over the person and thereby protect the right of the person to travel even if the constitution says it is only to infringe in the interest of national security, public safety or public health. Under Rules of Court, the courts have the inherent power to make its functions work. If the person is under the jurisdiction of the court, the court can issue any order to prevent that person from getting out of the court’s jurisdiction and outside the effects of the warrant. Remember that old case of Marcos vs. Manglapus, the discussion here was on whether or not the right to travel in the Constitution includes one’s right to travel back or to enter into the country. The liberty of abode means the liberty or your right to choose where to live and to change the place of your residence that can only be infringe upon lawful order of the court. The most common example we give is Destierro. You have been penalized as a concubine in concubinage and you are also penalized with distierro, you cannot enter within the 200km radius. The right to travel is intra-country, within the country, or going outside of the country. In the US where there are several state, the right to travel include travel within the state going to another state provided it within the entire United States. But the right to travel back in the case of Manglapus was discussed not as an express provision in the Constitution included in Section 6 of Article III but rather under the principle of Incorporation. In the Doctrine of Incorporation, generally accepted principles of international law are deemed part of the law of the land. The Universal Declaration of Human Rights among others states that everyone has the right to freedom of movement and residence within the borders of each state and everyone has the right to leave any country including his own and to return to his country.
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
That is the generally accepted principle and that deemed incorporated as part of the law of the land. Marcos vs. Manglapus G.R. No. 88211 Sept. 15, 1989 Facts: This case involves a petition of mandamus and prohibition asking the court to order the respondents Secretary of Foreign Affairs, etc. To issue travel documents to former Pres. Marcos and the immediate members of his family and to enjoin the implementation of the President's decision to bar their return to the Philippines. Petitioners assert that the right of the Marcoses to return i n the Philippines is guaranteed by the Bill of Rights, specifically Sections 1 and 6. They contended that Pres. Aquino is without power to impair the liberty of abode of the Marcoses because only a court may do so within the limits prescribed by law. Nor the President impair their right to travel because no law has authorized her to do so. They further assert that under international law, their right to return to the Philippines is guaranteed particularly by the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, which has been ratified by the Philippines. Issue: Whether or not, in the exercise of the powers granted by the constitution, the President (Aquino) may prohibit the Marcoses from returning to the Philippines. Held: "It must be emphasized that the individual right involved is not the right to travel from the Philippines to other countries or within the Philippines. These are what the right to travel would normally connote. Essentially, the right involved in this case at bar is the right to return to one's country, a distinct right under international law, independent from although related to the right to travel. Thus, the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights treat the right to freedom of movement and abode within the territory of a state, the right to leave the country, and the right to enter one's country as separate and distinct rights. What the Declaration speaks of is the "right to freedom of movement and residence within the borders of each state". On the other hand, the Covenant guarantees the right to liberty of movement and freedom to choose his residence and the right to be free to leave any country, including his own. Such rights may only be restricted by laws protecting the national security, public order, public health or morals or the separate rights of others. However, right to enter one's country cannot be arbitrarily deprived. It would be therefore inappropriate to construe the limitations to the right to return to ones country in the same context as those pertaining to the liberty of abode and the right to travel. The Bill of rights treats only the liberty of abode and the right to travel, but it is a well considered view that the right to return may be considered, as a generally accepted principle of International Law and under our Constitution as part of the law of the land. The court held that President did not act arbitrarily or with grave abuse of discretion in determining that the return of the Former
82
Pres. Marcos and his family poses a serious threat to national interest and welfare. President Aquino has determined that the destabilization caused by the return of the Marcoses would wipe away the gains achieved during the past few years after the Marcos regime. The return of the Marcoses poses a serious threat and therefore prohibiting their return to the Philippines.
RIGHT OF PERSONS UNDER CUSTODIAL INVESTIGATION miranda rights / warnings
In 1963, the US Supreme Court in the case of Miranda vs. State of Arizona, the court made a ruling that known as the Miranda Rule. Ernesto Miranda by his family name Hispanic was arrested on account of a complaint for abduction and rape of a female and the car plate was taken and it was traced to him. So several days later, he was arrested and placed in custody and brought to the police station and after several hours of interrogation he signed a confession. The court of Arizona convicted him solely on the basis of the extrajudicial confession and on appeal, the US Supreme Court discussed and reversed the decision of the lower court and remand the case to the lower court for presentation of other evidence because the extrajudicial confession was excluded. The trial court nonetheless upon the trial convicted him and imposed a penalty. But in the Supreme Court, it had a discussion of what are the rights of the person if that person is placed under investigation. There are two distinct rights because the Miranda Rule was not yet established which were sought to be reviewed as having been violated in the case of Ernesto Miranda: 1.) His privilege against self-incrimination which under Sec. 17 of Art. III now; 2.) His right to be represented by counsel. Should a person be assisted by counsel when he is under investigation? And so we came to be what we have now what we know as Miranda Warning. This was first incorporated in the 1973 Constitution of the Philippines, simply because the decision was in 1963, it could not have been incorporated in 1935. What the ruling simply requires is that the person must have to be informed of these so called Miranda Rights, and that information is what we know as Miranda Warning. The Miranda Rights are: 1.) The right to remain silent; 2.) The right to be informed that if he would waive his right to remain silent anything that he will provide and say will be and can be used against him in the court of law.
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
3.) He will also be informed that his Miranda Rights include the right to be represented by counsel; and 4.) If he could not afford the service of a counsel the state will provide a counsel for him. To give the Miranda Warning would require much more than the perfunctory presentation of the rights. In the US, there is no such thing or only some as difficulty in the manner or way that the Miranda Warnings are given but not as much as here because English is not a first language. So, in the previous decisions of the Supreme Court on the manner, the SC simply characterizes it that there must be a meaningful transmission of a right. Meaningful transmission requires that individual differences of person to whom these warnings are given and to whom these rights are afforded must have to be taken into consideration. The SC assumed that the public servant would easily recite these rights. I would have to pose that it should have been better that there must have to be a requirement that the police officer giving these warnings must also be able to give them properly and intelligently. The Supreme Court decisions have placed importance that the person to whom the right pertains have understood the meaning and import of these rights and that would include the meaning and import of any waiver of such rights. Constitutionally, it is simply required that there is a meaningful transmission of a right and that if there is a waiver, the waiver must have to be in writing and must have to be with the assistance of counsel. The question is asked today that have the answers ready because if it were to be asked prior to the 1987 Constitution, there was this case of People vs. Galit which somehow defined how the rights are to be waived based on the decision of March 20, 1985 which have since then been incorporated in the 1987 Constitution. So atleast those problems were answered in the Constitution: 1.) Meaningful transmission of a right; 2.) Meaningful transmission of the consequences of a waiver; 3.) The waiver must have to be in writing; and 4.) The waiver must have to be made with the assistance of counsel. (Distinction) So, while the assistance of counsel during the taking of the testimony or during the investigation may be waived the requirement that the waiver must be in writing with the assistance of counsel, the assistance of counsel there may not be waived.
83
The currently question asked is that, why should the so called Miranda Rights be considered as claimable. Constitutionally, it must have to be when a person is taken under investigation. In the ’73 Constitution it was originally placed to require Custodial Investigation. The person must have to be placed under custody. Meaning they must have been arrested at the very least for a substantial restriction of his freedom to go around. It is not necessary that he is in jail but at least his freedom to move around or mobility is substantially affected, he is considered to be theoretically placed under custody. In the case of Escobedo vs. Illinois which was the basis for ’87 Draft, one need not be under the custody anymore because the experience in the ’73 Constitution would show that persons investigated, admissions are taken even if these persons are not in custody. So the Escobedo v. Illinois ruling on investigation has been adopted under the ’87 Constitution. The investigation happens when the person is asked or the questions asked relating to that persons possible complicity of the crime under investigation. These would go beyond the general line of questioning on the person or persons whereabouts but is now pointing to that person as possible suspect. So if that question is pointing to that person as a possible suspect then that is already considered investigation regardless of the fact that the person is in custody or not. So as soon as the investigation is or has commenced then the right is now at play.
Escobedo v. Illinois 378 U.S. 478 June 22, 1964 Facts: Danny Escobedo's brother-in-law was killed on January 19, 1960. At about 2:30 in the morning, Escobedo was arrested without a warrant and taken to the Chicago police headquarters for questioning. Escobedo made no statement to the police and was released at approximately 5:00 that afternoon, after his lawyer obtained a writ of habeascorpus. Ten days later, on January 30, Escobedo was again arrested, handcuffed, and driven to the police station. On the way to the sta tion, the police allegedly informed Escobedo that a man named Benedict DiGerlando had said it was Escobedo who had fired the shots that killed his brother-in-law. The police also allegedly told Escobedo that the case against him was pretty secure and he might as well "come clean" and admit to the killing. At that point, Escobedo asked to have his lawyer present before answering any questions. The police questioned Escobedo for several hours, during which he continued to ask for his attorney. He was told that he could do so after the police concluded their interrogation. Escobedo's attorney, who was at the police station on another matter, discovered that Escobedo was in custody. He asked repeatedly to
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
speak to his client but got the same answer: He could see Escobedo after the questioning. While interrogating Escobedo, the police told him that they had DiGerlando in custody. They asked Escobedo if he would like to call DiGerlando a liar to his face. Escobedo said he would, and when the two men met, Escobedo said to DiGerlando: "I didn't shoot Manuel-yo4 did." This statement placed Escobedo at the crime scene for the first time or, at the least, showed that he had knowledge of the crime. As the questioning continued, Escobedo gave other information that incriminated himself, his sister, and DiGerlando in the murder of his brother-in-law. Before his trial, and on appeal, Escobedo asked the court to suppress all information gathered during the interrogation without his attorney. The motion was denied, and Escobedo was convicted of the murder of his brother-in-law. In February 1963, the Illinois Supreme Court heard Escobedo's appeal, ruled that the information should not have been allowed as evidence, and reversed the decision of the lower court. However, the state appealed for a rehearing. Saying that Escobedo had given the information voluntarily, the state asked the court to rule in favor of the prosecution and admit the evidence. The court agreed. Escobedo then petitioned the United States Supreme Court to review the case. Issue: Was the refusal by police to honor Escobedo's request to consult with his lawyer a violation of his Sixth Amendment rights? Held: The U. S. Supreme Court, by a vote of 5-4, said that Escobedo's rights had been violated. Overturning the ruling of the state supreme court, it declared that the information was not admissible as evidence because it had been unlawfully obtained. Writing for the Court, Justice Arthur Goldberg explained the point at which a police procedure became "accusatory" instead of 'investigatory:" ... [when] the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular subject, ... the police carry out a process of interrogation that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied 'the Assistance of Counsel" in violation of the Sixth Amendment .... [N]o statement elicited by the police during the interrogation may be used against him at a criminal trial. The dissenting justices expressed their serious concerns that this decision would make it much more difficult for the police to obtain information and for prosecutors to gain convictions.
We say that in the Constitutional context because R.A. No. 7438 (April 27, 1992) as you all know, it has expanded the applicability of Miranda Rule because, a person who is arrested detained or
84
investigated can claim the right, now as we know as Miranda Rights. So, before in the Constitutional context, if the person is not yet arrested, he could not claim Miranda Rights. He need not be informed of his Miranda Rights through a Miranda Warning. R.A. No. 7438 has expanded it to cover time of arrest already. This is also not claimable for statement taken before the ’73 Constitution because there is no Miranda Warning to talk about. It is not also considered in situations like police line-up where there is no questioning technically. When the person is faced or identification in a police line-up, that person is not placed under investigation. That is the in the Constitutional context again, because in R.A. No. 7438, the practice of inviting persons to the police station to shed light on the crime being investigated is considered covered under R.A. No. 7438. So if you were, for example, invited to a police station for purposed of identification. The Police Line-up, if it were to be in the construction of the Constitution that is not covered, but if you were to argue that this is covered by the R.A. No. 7438 then the answer should be, that the Miranda Warning should have been given. Now, there are also some other discussion on the Miranda Rights, under R.A. No. 7438. There two documents there required: 1.) The custodial investigation report; and 2.) Extra-judicial confession. In the original context of the Constitution of the application of the Miranda Warnings and of the Miranda Rights, there was no need of any written extra-judicial protection. Before the practice of police officers would be one of two things: 1.) There is a signed confession; 2.) The police investigator would testify in court that the accused has admitted to a committing the said crime. In order to do away with the said practices the R.A. No. 7438 has responded by requiring them to document the custodial investigation report which must be: 1.) In writing; 2.) Read and understood by the confessant and 3.) Explained to him, if the he does not know how to read and write; 4.) In the language that he speaks and understands.
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
Extra-judicial confession have the same requirement before it will be signed, which are: 1.) It must be in writing; 2.) It must be read and understood by the person and 3.) It must be explained to him, if the he does not know how to read and write; 4.) The explanation must be in the language that he speaks and understands; 5.) It must be signed by him with the assistance of his counsel. If there is no counsel because there is a valid waiver, the law still requires that it must still have to be signed by that person in the presence of any of his parents, older brothers and sisters, his spouse, the municipal mayor, the municipal judge, district school supervisor, or priest or minister of the gospel as chosen by him. Otherwise, such extrajudicial confession shall be inadmissible as evidence in any proceeding. Remember, when a person is arrested without warrant, the usual proceedings to be conducted by the prosecutor against the person is called inquest proceeding. Then the information is thereafter filed in court and if the accused wants to avail himself of the provisions of Rule 112 of the Rules of Court on Preliminary Investigation, can he avail of that and what are the conditions? Well, the ROC requires that he must avail of that in 5 days from knowledge that the information has been filed and he must have waived his right under Art. 125 of the Revised Penal Code which is arbitrary detention (ang arbitrary detention kay Art. 124 man, basi Delay in the delivery of detained persons to the proper judicial authorities, you mean?) R.A. No. 7438 covers Art. 125. Any waiver of the right under Art. 125 of the RPC must have to be in writing and must have to be signed by that person with the assistance of counsel. Again, this is in an expansion of the ROC and because this is substantive law, it shall govern and this is also the law which has expanded somehow the Constitutional provision, though it did not violate the Constitutional provision in the right of the persons under investigation. Other matter in R.A. No. 7438 is assisting of counsel. There are a lot of questions and cases before R.A. No. 7438, on who can be an assisting counsel for purposes of waiving his right to remain silent or his right to be assisted by counsel under the
85
Constitutional context. So in one case, I think in Samal where the MTC Judge acted as counsel, there were questions as to whether they could be an assisting counsel and most questions would be if the fact that the assisting counsel has been provided by the police officers did not be a ground for excluding the confession because the assisting counsel is one provided by the investigating officer. The answer is not necessarily because Miranda Rights include the right to be represented by counsel and if he cannot afford that the State will provide him with one. So for so long as the counsel who assisted the person is there to protect his rights then that lawyer assisting is fine. R.A. No. 7438 defines who can be an assisting counsel as any lawyer, except those directly affected by the case, those charged with conducting preliminary investigation or those charged with the prosecution of crimes cannot be assisting counsel. That would be the general rule, then if you are the municipal attorney, city attorney, provincial legal officer, you cannot be an assisting counsel because you’re interested in the prosecution of offenses. The exemption probably is when you are a relative of that person. In this right under investigation, the choice of counsel use the word “preferably” and as we always maintained the word should be understood liberally if it is claimed by that person that “preferably” means that – if allowed or allowable under the statute. Final item with respect Extra-Judicial Confession would be the rule on admissibility. There are always two things that would affect the admissibility of the extra-judicial confession: 1.) Question on the validity of the waiver; 2.) Question on the validity of the confession. Whether the waiver is voluntary or involuntary given, and whether the confession is voluntary or involuntary given. Now with respect to the waiver, the burden is always on the State. Because this is a Constitutional Right, the presumption of regularity does not work in this particular situation. The presumption is that the waiver is not valid. It is for the State to prove that the waiver was validly given. So we start with: 1.) Meaningful transmission of the right; 2.) Meaningful transmission of the consequence of the waiver; 3.) That the waiver is in writing;
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
4.) That the waiver has been given with the assistance of a counsel. But with respect to the confession, we still follow the presumption that people would always easily confess if they are liable or guilty of it. So that if the confessant or the person investigated would claim otherwise, it is his burden to prove that the confession was obtained by reason of vitiated consent, or by force, intimidation, torture or the like. There is no presumption of torture or any vitiation of consent even if it were true. The presumption is that, the police officers are performing their regular function and torture is not part of their regular function. Republic Act No. 7438
(d) Any extrajudicial confession made by a person arrested, detained or under custodial investigation shall be in writing and signed by such person in the presence of his counsel or in the latter's absence, upon a valid waiver, and in the presence of any of the parents, elder brothers and sisters, his spouse, the municipal mayor, the municipal judge, district school supervisor, or priest or minister of the gospel as chosen by him; otherwise, such extrajudicial confession shall be inadmissible as evidence in any proceeding.
April 27, 1992
AN ACT DEFINING CERTAIN RIGHTS OF PERSON ARRESTED, DETAINED OR UNDER CUSTODIAL INVESTIGATION AS WELL AS THE DUTIES OF THE ARRESTING, DETAINING AND INVESTIGATING OFFICERS, AND PROVIDING PENALTIES FOR VIOLATIONS THEREOF Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:: Section 1. Statement of Policy . – It is the policy of the Senate to value the dignity of every human being and guarantee full respect for human rights. Section 2. Rights of Persons Arrested, Detained or Under Custodial Investigation; Duties of Public Officers. – (a) Any person arrested detained or under custodial investigation shall at all times be assisted by counsel. (b) Any public officer or employee, or anyone acting under his order or his place, who arrests, detains or investigates any person for the commission of an offense shall inform the latter, in a language known to and understood by him, of his rights to remain silent and to have competent and independent counsel, preferably of his own choice, who shall at all times be allowed to confer privately with the person arrested, detained or under custodial investigation. If such person cannot afford the services of his own counsel, he must be provided with a competent and independent counsel by the investigating officer. (c) The custodial investigation report shall be reduced to writing by the investigating officer, provided that before such report is signed, or thumbmarked if the person arrested or detained does not know how to read and write, it shall be read and adequately explained to him by his counsel or by the assisting counsel provided by the
86
investigating officer in the language or dialect known to such arrested or detained person, otherwise, such investigation report shall be null and void and of no effect whatsoever.
(e) Any waiver by a person arrested or detained under the provisions of Article 125 of the Revised Penal Code, or under custodial investigation, shall be in writing and signed by such person in the presence of his counsel; otherwise the waiver shall be null and void and of no effect. (f) Any person arrested or detained or under custodial investigation shall be allowed visits by or conferences with any member of his immediate family, or any medical doctor or priest or religious minister chosen by him or by any member of his immediate family or by his counsel, or by any national non-governmental organization duly accredited by the Commission on Human Rights of by any international non-governmental organization duly accredited by the Office of the President. The person's "immediate family" shall include his or her spouse, fiancé or fiancée, parent or child, brother or sister, grandparent or grandchild, uncle or aunt, nephew or niece, and guardian or ward. As used in this Act, "custodial investigation" shall include the practice of issuing an "invitation" to a person who is investigated in connection with an offense he is suspected to have committed, without prejudice to the liability of the "inviting" officer for any violation of law. Section 3. Assisting Counsel . – Assisting counsel is any lawyer, except those directly affected by the case, those charged with conducting preliminary investigation or those charged with the prosecution of crimes. The assisting counsel other than the government lawyers shall be entitled to the following fees; (a) The amount of One hundred fifty pesos (P150.00) if the suspected person is chargeable with light felonies; (b) The amount of Two hundred fifty pesos (P250.00) if
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
the suspected person is chargeable with less grave or grave felonies; (c) The amount of Three hundred fifty pesos (P350.00) if the suspected person is chargeable with a capital offense. The fee for the assisting counsel shall be paid by the city or municipality where the custodial investigation is conducted, provided that if the municipality of city cannot pay such fee, the province comprising such municipality or city shall pay the fee: Provided, That the Municipal or City Treasurer must certify that no funds are available to pay the fees of assisting counsel before the province pays said fees.
to secure his safety and prevent his escape. Section 5. Repealing Clause. – Republic Act No. No. 857, as amended, is hereby repealed. Other laws, presidential decrees, executive orders or rules and regulations, or parts thereof inconsistent with the provisions of this Act are repealed or m odified accordingly. Section 6. Effectivity . – This Act shall take effect fifteen (15) days following its publication in the Official Gazette or in any daily newspapers of general circulation in the Philippines. Approved: April 27, 1992
In the absence of any lawyer, no custodial investigation shall be conducted and the suspected person can only be detained by the investigating officer in accordance with the provisions of Article 125 of the Revised Penal Code. Section 4. Penalty Clause. – (a) Any arresting public officer or employee, or any investigating officer, who fails to inform any person arrested, detained or under custodial investigation of his right to remain silent and to have competent and independent counsel preferably of his own choice, shall suffer a fine of Six thousand pesos (P6,000.00) or a penalty of imprisonment of not less than eight (8) years but not more than ten (10) years, or both. The penalty of perpetual absolute disqualification shall also be imposed upon the investigating officer who has been previously convicted of a similar offense.
PINOON, LOREVILL
The greatest results in life are usually attained by simple means and the exercise of ordinary qualities. These may for the most part be summed in these two: common-sense and perseverance.
Owen Feltham
~
The same penalties shall be imposed upon a public officer or employee, or anyone acting upon orders of such investigating officer or in his place, who fails to provide a competent and independent counsel to a person arrested, detained or under custodial investigation for the commission of an offense if the latter cannot afford the services of his own counsel. (b) Any person who obstructs, prevents or prohibits any lawyer, any member of the immediate family of a person arrested, detained or under custodial investigation, or any medical doctor or priest or religious minister chosen by him or by any member of his immediate family or by his counsel, from visiting and conferring privately with him, or from examining and treating him, or from ministering to his spiritual needs, at any hour of the day or, in urgent cases, of the night shall suffer the penalty of imprisonment of not less than four (4) years nor more than six (6) years, and a fine of four thousand pesos (P4,000.00). The provisions of the above Section notwithstanding, any security officer with custodial responsibility over any detainee or prisoner may undertake such reasonable measures as may be necessary
87
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
by any person in any proceeding, criminal or administrative, because the privilege is different. August 28, 2012 In one of the cases in your outline, the accused there, on the date the victim died, forcibly took the victim to his vehicle. The victim jumped out of the vehicle. After the incident the accused went directly to the police station to voluntarily give the statement that the victim jumped out of the motor vehicle. Now, that statement was taken as part of the evidence of the prosecution and the accused was convicted. It was admissible as it was not taken under custodial interrogation. The Supreme Court rationalize on the ground that the statement was voluntarily given. It should be treated as one of the exceptions that the rights under Miranda Rule are not claimable because there is no questioning on the part of the police officer that may have elicited the extra judicial confession. So, if the statement is voluntarily given, it is considered admissible. This is commonly observed when persons suspected of committing a crime are interviewed by media and perhaps because of lack of any knowledge of such rights, they would normally give information as to whether they have committed the crime and those are admissible because they are elicited not by reason of questioning where they are place under investigation. Now in administrative investigations which ordinarily are not in relation to criminal offense, the Mirada rule is not applicable. But they must have the right to be represented by counsel as required in the fundamental rules of due process. But as to whether they should be given the warning and as to whether they could be extended to the so called Miranda rights, it’s another thing. Example, if an employee is charge administratively by an employer for violating a company rule or policy, he is entitled to representation in accordance to the labor code. However, as to whether he is entitled to be informed of his rights to remain silent, it is not included. It is also not an obligation of the employer to provide him a counsel if he can’t afford one, though it is provided under the Miranda rights. But as to entitlement of counsel and to be informed on this right it is mandated under the labor code. Same principle would apply in cases of students with administrative cases in tertiary level, it is mandated that they should be allowed representation but the school has no obligation to give Miranda warnings or provide a counsel if they can’t afford one. This should not be confused with the privilege of self-incrimination under section 17 because here it is claimable
88
RIGHT TO BAIL
When Right may be Invoked Right to bail. It must be understood in relation to Rule 114 of the Rules on Criminal Procedure because when the Constitution provides when bail is a matter of right or when it is a matter of discretion, the basis is when the offense which a person is charged would carry with it the penalty of Reclusion Perpetua or higher, bail is a matter of discretion. However, in the Rules of Court, it provides for certain circumstances which a person in a criminal case may have bail as a matter of discretion even if the penalty is less than Reclusion Perpetua, this is when the penalty is six years and one day to twenty years and there is showing of the following circumstances such as being a recidivist, habitual delinquent, that the accused has previously escape, there is probability of flight a free list or on bail or risk that he would commit another crime. Rule 114 section 5. Sec. 5. Bail, when discretionary. – XXX If the penalty imposed by the trial court is imprisonment exceeding six (6) years, the accused shall be denied bail, or his bail shall be cancelled upon a showing by the prosecution, with notice to the accuse, of the following or other similar circumstances: (a) That he is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime aggravated by the circumstance of reiteration; (b) That he has previously escaped from legal confinement, evaded sentence, or violated the conditions of his bail without valid justification; (c) That he committed the offense while under probation, parole, or conditional pardon; (d) That the circumstances of his case indicate the probability of flight if released on bail; or (e) That there is undue risk that he may commit another crime during the pendency of the appeal. XXX If a person is not yet charged, can a person put up bail? If he is under custody he could. What if the accused is already charged in court but not yet arrested? Can he put up bail? I think the
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
logical thinking would tell us that as soon as the information is charged, even if no warrant is issued yet, you must be allowed to post bail. Nonetheless, remember our discussion on arrest. When the information is filed in court the rules of court provide for three things that a judge can do. 1.
Bail in Military Courts
Judge would determine whether or not there is a probable cause to proceed with the case. So the judge can dismiss the case without issuing a warrant. If there is doubt as to the probable cause it can require the prosecution to present additional evidence to prove probable cause to proceed. If there is reason to proceed the judge will determine whether there is a probable cause to issue a warrant.
Okay now, we already know that there is no bail in military courts involving military personnel as to the respondent or accused because of the condition or nature of the proceedings in military courts, including the offenses are not ordinary as it involves offenses against the state, such as treason. If they would be allowed bail, they could be out there and commit same acts of treason.
Now if the judge can determine the probable cause whether or not to proceed and thereby dismisses the case, what should happen then if the accused already posted bail even before he was arrested? I don’t know the answer but just a thinking based on the provisions of the Rules of Court.
Now when bail is a matter of right, section 9 of rule 114 (standard for fixing bail) may be taken by the court in relation to the request of the prosecution to increase bail or request of the defense to reduce bail. Now in case where bail is a matter of discretion hearing is mandated. It is a condition precedent, to determine the presence of those circumstances under section 5 in rule 114 however, if bail is a matter of right, hearing is not normally required. The court would just issue the release after the accused is complied with the undertaking requirements. But again, if there is a request in increase or reduced bail, then hearing is normally taken to determine it.
2.
3.
Now in relation to the court where you have to post bail… when bail is a matter of discretion, you cannot file it anywhere but in the issuing court. If you want bail to be reduced or want to post another kind of bail other than cash, it must be applied for in the issuing court. It is only the issuing court can exercise discretion if there is a need to exercise discretion if there is none then you could file it in any of those court mentioned under the rules. Section 17, Rule 114. Sec. 17. Bail, where filed. – (a) Bail in the amount fixed may be filed with the court where the case is pending, or in the absence or unavailability of the judge thereof, with any regional trial judge, metropolitan trial judge, municipal trial judge, or municipal circuit trial judge in the province, city or municipality. If the accused is arrested in a province, city, or municipality other than where the case is pending, bail may also be filed with any regional trial court of said place, of if no judge thereof is available, with any metropolitan trial judge, municipal trial judge, or municipal circuit trial judge therein. (b) Where the grant of bail is a matter of discretion, or the accused seeks to be released on recognizance, the application may only be filed in the court where the case is pending, whether on preliminary investigation, trial, or appeal.
89
Any person in custody who is not yet charged in court may apply for bail with any court in the province, city, or municipality where he is held.
Standards for Fixing Bail
Sec. 9. Amount of bail; guidelines. – The judge who issued the warrant or granted the application shall fix a reasonable amount of bail considering primarily, but not limited to, the following factors:chanroblesvirtuallawlibrary (a) Financial liability of the accused to give bail; (b) Nature and circumstance of the offense; (c) Penalty for the offense charged; (d) Character and reputation of the accused; (e) Age and health of the accused; (f) Weight of the evidence against the accused; (g) Probability of the accused appearing at the trial; (h) Forfeiture of other bail; (i) The fact that the accused was a fugitive from justice when arrested; and (j) Pendency of other cases where the accused is on bail. Excessive bail shall not be required.
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
Now these standards in section 9 are not the hard and fast rule, they are just guidelines that may be used in determining amount of bail the court may use any other reason for granting bail.
Let’s go to rights during trial. Now, the first of these rights during trial is your due process in criminal cases. We have said that in section 14, that is a restatement of the due process right or rule in criminal cases, not because of anything else but because there is a need to restate that considering that in our system, an accused is charged an the entire resources of the government is against him. That’s why there is a need to restate, to put more emphasis on that due process clause in criminal cases.
Court of Appeals and when the lawyer received the notice to file the appellant’s brief within 20 days, in relation to Rule 124 of our Rules of Court, the lawyer failed to file the appellants brief despite 4 extensions sought. The appeal was dismissed on the ground of failure to prosecute by the Court of Appeals. The accused’s lawyer filed a motion for reconsideration stating, among others, that the reason for failure to file the brief was his own fault considering that he was suffering from some personal problem on account of an ailment and, on the same motion for reconsideration, undertook to file the appellant’s brief within a period of 7 days. Despite that, he still failed to file the appellants brief for which reason the motion for reconsideration was denied. Thereafter, the accused filed an omnibus motion for reconsideration stating again the reasons for the delay, and this time raising the ground that based on the Rules of Court, there must have to be a notice to the appellant. The CA is allowed to dismiss the appeal motu proprio upon the failure of the appellant to file the appellant’s brief but with prior notice to the appellant. The reason for granting the appellant to give the appellant such notice is to give the appellant to state the reason for the failure and for the court to determine whether the reasons are satisfactory or justified. Can the CA in this particular case motu proprio dismiss the appeal for failure to file the appellant’s brief even without notice to the appellant and if so should this be a violation of his right to due process? The Supreme Court said in this case, there is no violation of due process. There is even no need for notice as may have been required by the rules. Ordinarily, it is so required in order to give the accused the reasons for the failure and for the court to appreciate whether those reasons are satisfactory or justified. But, the facts of the case would tell us, according to the SC, that accused’s appellant failed to file appellant’s brief despite 4 extensions sought and granted. He even failed to file the undertaking in the motion for reconsideration filed. Again due process is merely to give an opportunity to the party to plead his case. The facts of the case would show that more than sufficient opportunity has been granted. It also highlights the constitutional discussion on due process which does not include the right to appeal. As we made mention, the right to appeal is only included in the Rules of Court under Rule 115, Section 1(i) with respect to the accused having this right to appeal. The right to appeal is therefore statutory and not constitutional with respect to cases or parties where cases are filed in our system because the due process is satisfied substantially when the case is heard even in the first instance that it is filed, tried and decided.
This case of Dimarucot vs. People involves an accused who has been convicted in the trial court. The accused appealed to the
G.R. No. 183975 September 20, 2010 GREGORIO DIMARUCOT y GARCIA vs. PEOPLE
Now, bail is not required when the law does not require any bail or would allow recognizance. When is recognizance allowed? Ordinarily, if the person is charged with a violation of ordinance or of a light felony, the bail to be granted there is merely recognizance. Under R.A. 7636, when the penalty range does not exceed 6 months or a fine of not more than P2000.00 or both, recognizance shall be granted. When the accused has been incarcerated for a period of at least equal to or more than the minimum of the principal penalty, without applying the modifying circumstances, the accused shall be released on recognizance even if that case shall have to continue. If the accused has applied for probation and he is not on bail pending the grant of the application, the accused may be released on recognizance. Youthful offender under P.D. 603 shall be released on recognizance. No bail shall be required. And, as we all know recognizance shall be to place the obligation to a responsible member of the community to ensure that the accused will be present every time the case is called and the presence of the accused is required. Now, in cash, property or surety as bond, it is quite easy to understand that in case of violation of the undertaking of the accused, the cash bond shall be forfeited in favor of the government as well as the property bond and the surety company will be liable for the entire amount of bail under his guaranty. Now, what should happen if the accused is released on recognizance and the accused does not appear as required by the court? Will that responsible member of the community be incarcerated instead until the accused appears? What happens? OK. RIGHTS DURING TRIAL
90
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
Petitioner cannot simply harp on the mistakes and negligence of his lawyer allegedly beset with personal problems and emotional depression. The negligence and mistakes of counsel are binding 18 on the client. There are exceptions to this rule, such as when the reckless or gross negligence of counsel deprives the client of due process of law, or when the application of the general rule results in the outright deprivation of one’s property or liberty through a technicality. However, in this case, we find no reason to exempt petitioner from the general rule. The admitted inability of his counsel to attend fully and ably to the prosecution of his appeal and other sorts of excuses should have prompted petitioner to be more vigilant in protecting his rights and replace said counsel with a more competent lawyer. Instead, petitioner continued to allow his counsel to represent him on appeal and even up to this Court, apparently in the hope of moving this Court with a fervent plea for relaxation of the rules for reason of petitioner’s age and medical condition. Verily, diligence is required not only from lawyers but also from their clients. Negligence of counsel is not a defense for the failure to file the appellant’s brief within the reglementary period. Thus, we explained in Redeña v. Court of Appeals: In seeking exemption from the above rule, petitioner claims that he will suffer deprivation of property without due process of law on account of the gross negligence of his previous counsel. To him, the negligence of his former counsel was so gross that it practically resulted to fraud because he was allegedly placed under the impression that the counsel had prepared and filed his appellant’s brief. He thus prays the Court reverse the CA and remand the main case to the court of origin for new trial. Admittedly, this Court has relaxed the rule on the binding effect of counsel’s negligence and allowed a litigant another chance to present his case (1) where the reckless or gross negligence of counsel deprives the client of due process of law; (2) when application of the rule will result in outright deprivation of the client’s liberty or property; or (3) where the interests of justice so require. None of these exceptions obtains here. For a claim of counsel’s gross negligence to prosper, nothing short of clear abandonment of the client’s cause must be shown. Here, petitioner’s counsel failed to file the appellant’s brief. While this omission can plausibly qualify as simple negligence, it does not amount to gross negligence to justify the annulment of the proceeding below. (Emphasis supplied.) The right to appeal is not a natural right and is not part of due process. It is merely a statutory privilege, and may be exercised only in accordance with the law. The party who seeks to avail of the same must comply with the requirements of the Rules. Failing to do so, the right to appeal is lost. Strict compliance with the Rules of Court is indispensable for the orderly and speedy disposition of justice. The Rules must be followed, otherwise, they will become meaningless and useless.
91
PRESUMPTION OF INNOCENCE
The next right of the accused is the presumption of innocence. The presumption of innocence, as the term suggests, is merely a presumption. It does not create any protection on the part of the accused that the state cannot in any other way prove his guilt. The presumption simply gives the state the burden of proving, first, that the accused has committed the act and that the act constitutes a crime. When that burden is met, then, the burden of evidence shifts to the accused. The accused has now the burden of proving his innocence. The state is not even barred from legislating a law which would provide for a prima facie presumption of guilt like your law on anti-fencing. When you are in possession of a property which was not brought through legal means, which you know or should have known to have been stolen, you are supposed to be prima facie liable for fencing. Now, that law has not been declared as unconstitutional because what the law creates is merely a prima facie presumption. It does not destroy the presumption of innocence because presumption of innocence is also prima facie in effect because the state can prove that you are not innocent of such crime. The same thing with the procedure on preliminary investigation or examination, when a complaint is processed in the investigation level, whether it be the prosecutor or any other authorized officer. The determination of that investigating officer as to the guilt is only prima facie. Meaning, they find probable cause or a well-founded belief that the accused has committed the offense and therefore must be held for trial. That does not destroy the presumption because it’s only a prima facie finding of liability. The state still has the burden in the first instance to prove that the accused has committed the act and that the act is constitutive of a crime and that the accused must therefore be held liable. RIGHT TO BE HEARD PERSONALLY OR BY COUNSEL
This simply means the right to present your evidence. I often would relate that to my personal experience with Atty. Gil dela Banda. When we were still in the legal aid office we have this accused who was charged with possessing and or pushing marijuana leaves one sack of that. The penalty was death. There was still death penalty before. Since he was my supervising lawyer, I was just a new lawyer then. We kept on arguing or discussing whether or not we should allow the accused to be heard in person because the accused wanted to say his piece, saying that if he will be allowed to testify, he will be able to
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
convince the judge that he did not commit the crime. The usual thing with the legal aid office before, during our time, when it comes to drugs or drug related cases, it’s always the inadmissibility of the evidence because we were not there, we would not know what would have happened and while there may be reason to doubt as to the doing of the police officers, we have no basis in fact to doubt what they say. So it’s their word against the word of the police. But we had difficulty because there were, I think 4 occasions that we interviewed the accused, some in the jail, some in the courthouse, switching his story 4 times also. So we said, ok should we present him or not? You know Sir Gil, he’s a, not that I am not, but he was looking at the moral side of it. Meaning, if you know that the accused is going to perjure himself, would you as an officer of the court participate in that actuation? To allow a witness to state a falsehood and be an instrument in that falsehood. On the other hand, there’s a question of, again, either legal or moral, what authority do you have as a lawyer to prevent the accused from taking his constitutional right to be heard in person simply because you have your opinion that he is going to tell a lie? So, that’s the moral or legal dilemma. Finally, we said that we will file a motion for leave to file a motion for a demurrer to evidence and file a demurrer and cross a bridge when there is a bridge. Because, when you file a demurrer there is no defense evidence yet. So we did just that and try to put the question to be answered later hoping that the demurrer will be granted. The demurrer was granted, and so, we did not cross the bridge because there was no bridge yet. The short of the long story is that the accused was killed. You know the Davao Dog Squad. Ok, the question is, if the accused had the right to be heard by himself personally, again, there’s that moral or legal question, if you know that he is going to perjure himself would you put him in the stand? You ask the question, what made you conclude that he is going to tell a falsehood? Was his first story the correct story? The second, the third, the fourth? You can never know because you were never really there as much as the court was not there and also the prosecutors. So it leaves him to tell his story. Objectively, we have known in legal ethics, you take the case regardless of your opinion as to the innocence or guilt of the person. At least, that’s what the book says. It’s different if you tell the person to tell a lie. But, with your set of questions, the answers have been different in four occasions. While there may be suspicion that he is not telling the truth, the question is, which truth? Your truth or his truth? Or which of those answers really are true? And which are not? So, that is when he has to claim his right to be heard.
92
To be heard by counsel, well, there is that old saying, that a person may be convicted not because he is guilty but because he does not know how to protect his innocence. Even the most learned man in the law, if he is personally involved in litigation, may not have the test of objectivity in proceeding with the case. He might be too emotional about it. He may be too distracted to be able to properly try the case. Objections, I watch a portion of this civil action in HBO and John Travolta was trying a case against a seasoned lawyer. The seasoned lawyer is a teacher in remedial law, particularly in evidence so there were clips of him teaching. He was telling his student that you object. If you, by chance, slept during the trial, upon waking up what do you say? Objection, your honor! In any case, to be assisted by counsel, is different from the right to be assisted by counsel preferably of his own choice under section 12. In the rights of the accused during trial, to be assisted by counsel, the court has the obligation to inform the accused just like the investigating officer in the investigation under section 12 that he has the right to be represented by counsel and if he cannot afford one, the state will provide him with one. But that is the extent of the similarity between section 12 and section 14. Because in section 12, we have already mentioned that the phrase “preferably of his own choice” is found which is not found on section 14, the rational being that it is already before a court or a judge. The right of the accused during trial is better protected because it is already in court. The judge is not there to convict the accused. The judge is there to see that justice is delivered or administered. So, unlike in the investigation where the proceeding is out of court, the one asking the question are the police officers that would be witnesses against you, who have been the person who arrested you, you must have to be given better protection. That’s why the choice of counsel is with that phrase “preferably the choice of the person to be prosecuted. IMPORTANT: In any case “to be assisted by counsel” must have to be differentiated with the phrase “to be assisted by counsel preferably of his own choice” under Sec. 12. In the rights of the accused during trial to be assisted by counsel, the court has the obligation to inform him and just like the investigating officer in investigation under Section 12 that he has the right to be represented by counsel and if he cannot afford one, the State will provide him with one. But that is the extent of the similarity between Section 12 and 14. In Section 12, we have already mentioned that the phrase “preferably of his own choice” is found which is not found in Section 14. The reason being this is already for the court or the judge. The rights of the accused during trial is better protected
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
because it is already in court. The Judge is not there to convict the accused, the judge is there to see that justice is delivered or administered. Unlike in an investigation where there is proceeding out of court, the one asking the questions are the police officer, the same officers that would be witnesses against you or may have been the person who arrested you, they must have to be given better protection as well as the choice of counsel and so there is that phrase “preferably of his own choice”. What would happen here in reality is the judge will appoint a counsel de officio. If the accused appears before the court without any representation. The usual counsel de officio are those found in court and those new practitioners, so that they will be given experience also. Supposedly, if you go by the technicality of it, the appointment of counsel de officio involves 2 matters: one, the competence of the counsel to represent the accused and second, the competence on the case, on the complexity or nature of the offense. There is a presumption that the lawyer knows the law and the procedure. But the complexity of the case may somehow change – that level of competence or skill of the lawyer. If the client or accused is facing a death penalty case, would a new practitioner be in a better position than one who has the experience of trying these cases? If that is the question, the Judge would be able to answer himself so that the counsel de officio would be properly appointed. Second is that by the rules of court, when you are appointed as counsel de officio, you are supposed to be paid by the Supreme Court for the services you rendered. The Rules of Court will not make it difficult for you to seek payment for your services because of the reportorial requirement. The ROC – you will be paid so little and the reportorial requirement would require you to spend so much. In the case of People vs. Siongco, the regular counsel of the accused here was a lawyer from the Public Attorneys Office, however, when the PAO lawyer was absent, the court appointed a counsel de officio to assist the accused for at least 6 hearings and the accused later on complained that he was not my regular counsel. My regular counsel was the PAO lawyer and so my right to be heard by counsel has been violated. The SC said that there was no violation, there was no denial of the right to be heard by counsel because you have had legal representation. The appointment of the counsel de officio does not follow with that of Section 12 that it is preferably of his own choice. The right to free legal assistance under Section 11 is in relation to the right under Section 14. The free legal assistance here is
93
after finishing 3 years in law school
still on the right to be heard by counsel. I must have mentioned that the Supreme Court has promulgated a rule on limited law student practice. If you have finished your 3rd year in law school, you can perform the acts as if you are a lawyer provided you are supervised by a member of the Philippine bar. This is to give legal representation for those who may not be able to afford legal representation or there may have been too many cases already handled by the PAO where a case of a person may not be handled well. I would like to believe that new lawyers or law students have a better grasp of the law or procedure although they may not have the experience; they have a better understanding of the latest jurisprudence or the application of the law. It does not follow that if you have been in the practice for so long that you have better commands. The experience that they may have had may only be with respect to skill on trial but not necessarily on the substantive aspect of the law or the correct interpretation of the Rules of Court which may have decided recently. At most, old practitioners may have better delivery but it does not follow that when they talk a lot that they know about it. So, those who have finished their 3rd year in law school, not 3 years. In 4th year, there is really nothing much there, its just review. In trial practice, what is important is the Rules of Procedure because the substantive law, you can always go back to your office and study your case. In procedure, there is too little time while you are already in court to read. They say, just remember the basics in objecting in Evidence. RIGHT TO BE INFORMED OF THE NATUR E AND CAUSE OF ACCUSATION
Now, the right to be informed of the nature and the causes of accusation is normally satisfied between the period or stay of arraignment. During arraignment, the accusations is read to the accused and this must be read to him in a language he speaks and understands because there must be meaningful transmission of what the charges are with respect to the accused. If there is no prior arraignment, there is no valid proceeding. The arraignment must be…personally to the accused and the accused must also personally enter his plea. However, if he refuses to enter a plea after the reading of the information, the court may enter a plea of not guilty; and he must be there in person. Unlike in the US as we may have seen in some shows or movies…arraignment may be dispensed with and the counsel may enter a plea. There are 3 reasons why the information must have to be read: 1.) to furnish the accused of the charge and allow him to prepare for his defense
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
2.) for the accused to avail of any conviction or acquittal from any further prosecution, meaning, he will have to or he may be able to claim double jeopardy 3.) to inform the court of a sufficiency of information if it warrants a conviction because before arraignment, we all know that the Prosecution can still amend the information whether in form or in substance. But after it is read, it can only be amended when it refers to form and if substance, there must have to be the exercise of discretion by the court in order to protect the rights of the rights of the accused. And normally, this is with respect to his rights against double jeopardy. So if the information does not charge an offense, then probably the defense can seek the quashal of the information. Again, this is to inform the court as to whether the information is sufficient. In the case of People vs. Bartolini , the information did not indicate the age of the victim. I think, it is a crime of rape. (Note: It was a 2010 case, 626 SCRA 527, it was really a rape case and the information did not indicate the age of the victim) The question is: Is the defect fatal? The SC said: Yes, the defect is fatal because the accused upon reading the information must have been informed that he could possibly face the death penalty. Again, age here is an essential element of the offense so to qualify it and make the penalty death. So, if that was not included in the information, as we all know that would never be appreciated to qualify the offense and make death as the imposable penalty. G.R. No. 179498 August 3, 2010 PEOPLE OF THE PHILIPPINES vs. RUSTICO BARTOLINI y AMPIS Similar to (People vs.) Tagud, the qualifying circumstance of relationship of BBB to appellant was specifically alleged and proven during the trial. Notably absent in the information, however, is a specific averment of the victim’s age at the time the offense against her was committed. Such an omission committed by the prosecutor is fatal in the imposition of the supreme penalty of death against the offender. It must be borne in mind that the requirement for complete allegations on the particulars of the indictment is based on the right of the accused to be fully informed of the nature of the charges against him so that he may adequately prepare for his defense pursuant to the constitutional requirement on due process, specially so if the case involves the imposition of the death penalty in case the accused is convicted. Thus, even if the victim is below eighteen (18) years of age and the offender is her parent, but these facts are not alleged in the information, or if only one (1) is so alleged such as what happened in the instant case, their proof as such by evidence offered during trial cannot sanction the imposition of the death penalty.
94
Ok, I was in a North Cotabato town a couple of weeks ago and there was an arraignment and reading of the information. One of the local languages in the town is Ilocano so they were looking for somebody to interpret the information in Ilocano. Luckily, the court employee knows how to speak Ilocano and he was able to interpret/translate the information in Ilocano because the accused does not know or cannot understand English as much as he could speak and understand Ilocano. The problem there is: What if that person is not a court employee? Could they just ask anybody from the public to act as interpreter? By the way, is that an interpreter or a translator? What do they exactly do, do they interpret or do they translate? If you translate, what do you do? – you interpret and when you interpret, you translate. You must have read in the internet in the archives of the file of OJ Simpson – the killing of his spouse and of the lover. That was in the first time that we were at least in Philippine history being spot doing court room proceedings or case because the court room proceedings were televised from start to finish and the Judge there, a Japanese American allowed that coverage to be done and so everybody who was interested in law follow those proceedings. There was a question on interpretation or translation raised because one the witnesses was a househelp who was Mexican and apparently saw OJ going in or coming out because she was there…for the dogs of her employer. She was testifying in Spanish or Mexican and there was a question on whether what the court employee should do, to interpret or to translate. Because to translate is literally to transpose it from English to Ilocano or Cebuano and vice-versa, so to translate is to give your understanding of the question or of the answer and it may give it another meaning. The Judge was saying you should not translate, you should interpret. If you have seen those proceedings, the stenograhers were using this machines “attached” to a CPU and the lawyers would automatically read everything in English. Here, we don’t have those and what’s worse, if you go to trial your English in the transcript of stenographic notes would be horrible. There was one trial and I have this question, “Is it not that your motor vehicle is a Route 10 vehicle?” The case was reckless imprudence, a client’s vehicle has bumped along Ladislawa road. The thing was my client’s vehicle bumped that PUJ and the PUJ was Route 10, which supposedly should not pass that Buhangin Road, it should be within downtown only. And so that PUJ was
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
plying that area which he was not supposed to do, he was negligent – that was our defense. So when the driver was testifying, I asked, “Is it not that your motor vehicle is a Route 10 vehicle?” Here comes the interpreter: “Tinuod ba nga ang imong sakyanan daut-daut?”
DUMANDAN, GAB ILUSTRISIMO, ROGIE TORRES, EGAY
The difference between a successful person and others is not a lack of strength, not a lack of knowledge, but rather a lack in will.
Vince Lombardi
—
����� ��� ������� ��� ��� ������� ����� ���� ������� ��� ��� ���� ������ ��������
The significance of a man is not in what he attains but in what he longs to attain. ~Kahilil Gibran 95
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
August 29, 2012 RIGHT OF THE ACCUSED TO A SPEEDY, IMPARTIAL AND PUBLIC TRIAL
was a violation of the constitutional right to speedy trial, that there was a delay from the arraignment to the actual pre trial. The SC applied the balancing of interest test between the right of the accused to speedy trial and the right of the State to prosecute. (IMPORTANT)These four-fold factors in balancing the interest are as follows:
Speedy Trial This includes the right of the parties to a free and impartial court or tribunal. The impartiality is not only required as a matter of procedure but the judge must also be impartial for which there is a corresponding rule in the Rules of Court for mandatory disqualification of judges by reason of conflicting interests and the voluntary grounds for their inhibition. There is no mandatory ground if the judge may still be sought to be refused from hearing the case on the voluntary ground provision (of the Rules) on the assumption that judge can no longer be impartial in this case. The most that is asked with respect to the impartiality during the conduct of the trial is the behavior of Judges in relation to the proceedings. Ideally, though (the one) presiding in the conduct of the hearing must have to be an innocent bystander with respect to the respective claims of the parties, nonetheless, the judge is not also prohibited from asking clarificatory questions in order that he may be clarified as to certain matters. But the line dividing what is clarificatory and what is helping the cause of one party is very thin; this is where most motions to refuse answer … because of the assumption or the notion that the judge asking questions are actually helping a party in his cause or defense. The right to speedy trial is given to the accused and it is characterized as a trial that is (free) from any capricious/ unauthorized delay. This characterization however is not subject to hard and fast rule. There is no definite set of rules even if the right to speedy trial act has been incorporated in the Rules of Court. We are aware that there is a law, the right of speedy trial act, and there is an allowable number of days for the time of filing, from the time of arraignment and from the time of the prosecution to present evidence and defense (vice versa) including the full presentation of respective rebuttal and answer to rebuttal by the parties. The case is thereafter submitted for decision. The Rules of Court as well as the law itself have been interpreted by the court to allow reasonable and justifiable delays. In the case of Olbes vs. Buemio, 607 SCRA 336, there was a total of 253 days from the time the accused was arraigned…or a lapse of 105 days and from the first pre-trial to the actual trial conducted there was a lapse of 148 days, a total of 253 days delayed. The claim of the accused (was ) that there
96
1.) the delay , 2.) the reason of the delay 3.) the assertion or non-assertion of the right of speedy trial of the accused; and 4.) the prejudice due to the delay or may have been caused by the delay. There is a BALANCE OF INTEREST… while the accused has the right to speedy trial to free himself from the anxiety and expense so that this guilt or innocence will be determined to the most reasonable time possible required to protect both the interest of the accused as well as the prosecution, the court shall note that balance using the four-fold factors mentioned. G.R. No. 173319 December 4, 2009 FEDERICO MIGUEL OLBES vs. HON. DANILO A. BUEMIO Petitioner draws attention to the time gap of 105 days from his arraignment on February 12, 2003 up to the first pre-trial setting on May 28, 2003, and another gap of 148 days from the latter date up to the second pre-trial setting on October 23, 2003 or for a total of 253 days - a clear contravention, according to petitioner, of the 80-day time limit from arraignment to trial. It bears noting, however, that on his arraignment on February 12, 2003, petitioner interposed no objection to the setting of the pre-trial to May 28, 2003 which was, as earlier stated, later declared a non-working day. Inarguably, the cancellation of the scheduled pre-trial on that date was beyond the control of the trial court. Petitioner argues, however, that the lapse of 253 days (from arraignment to October 23, 2003) was not justified by any of the excusable delays as embodied in the time exclusions 22 specified under Section 3 of Rule 119. The argument is unavailing. In Solar Team Entertainment, Inc. v. Judge How, the Court stressed that the exceptions consisting of the time exclusions provided in the Speedy Trial Act of 1998 reflect the fundamentally recognized principle that "speedy trial" is a relative term and necessarily involves a degree of flexibility. This was reiterated in People v. Hernandez, viz:
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
The right of the accused to a speedy trial is guaranteed under Sections 14(2) and 16, Article III of the 1987 Constitution. In 1998, Congress enacted R.A. No. 8493, otherwise known as the "Speedy Trial Act of 1998." The law provided for time limits in order "to ensure a speedy trial of all criminal cases before the Sandiganbayan, [RTC], Metropolitan Trial Court, Municipal Trial Court, and Municipal Circuit Trial Court." On August 11, 1998, the Supreme Court issued Circular No. 38-98, the Rules Implementing R.A. No. 8493. The provisions of said circular were adopted in the 2000 Revised Rules of Criminal Procedure. As to the time limit within which trial must commence after arraignment, the 2000 Revised Rules of Criminal Procedure states: Sec. 6, Rule 119. Extended time limit.-- Notwithstanding the provisions of section 1(g), Rule 116 and the preceding section 1, for the first twelvecalendar-month period following its effectivity on September 15, 1998, the time limit with respect to the period from arraignment to trial imposed by said provision shall be one hundred eighty (180) days. For the second twelve-month period, the time limit shall be one hundred twenty (120) days, and for the third twelve-month period, the time limit shall be eighty (80) days. R.A. No. 8493 and its implementing rules and the Revised Rules of Criminal Procedure enumerate certain reasonable delays as exclusions in the computation of the prescribed time limits. They also provide that "no provision of law on speedy trial and no rule implementing the same shall be interpreted as a bar to any charge of denial of speedy trial as provided by Article III, Section 14(2), of the 1987 Constitution." Thus, in spite of the prescribed time limits, jurisprudence continues to adopt the view that the concept of "speedy trial" is a relative term and must necessarily be a flexible concept. In Corpuz v. Sandiganbayan, we held: The right of the accused to a speedy trial and to a speedy disposition of the case against him was designed to prevent the oppression of the citizen by holding criminal prosecution suspended over him for an indefinite time, and to prevent delays in the administration of justice by mandating the courts to proceed with reasonable dispatch in the trial of criminal cases. Such right to a speedy trial and a speedy disposition of a case is violated only when the proceeding is attended by vexatious, capricious and oppressive delays. x x x While justice is administered with dispatch, the essential ingredient is orderly, expeditious and not mere speed. It cannot be definitely said how long is too long in a system where justice is supposed to be swift, but deliberate. It is consistent with delays and depends upon circumstances. It secures rights to the accused, but it does not preclude the rights of public justice. Also, it must be borne in mind that the rights given to the accused by the Constitution and the Rules of Court are shields, not weapons; hence, courts are to give meaning to that intent.
A balancing test of applying societal interests and the rights of the accused necessarily compels the court to approach speedy trial cases on an ad hoc basis. In determining whether the accused has been deprived of his right to a speedy disposition of the case and to a speedy trial, four factors must be considered: (a) length of delay; (b) the reason for the delay; (c) the defendant’s assertion of his right; and (d) prejudice to the defendant. The time limits set by the Speedy Trial Act of 1998 do not thus preclude justifiable postponements and delays when so warranted by the situation. To the Court, the reasons for the postponements and delays attendant to the present case reflected above are not unreasonable. While the records indicate that neither petitioner nor his counsel was notified of the resetting of the pre-trial to October 23, 2003, the same appears to have been occasioned by oversight or simple negligence which, standing alone, does not prove fatal to the prosecution’s case. The faux pas was acknowledged and corrected when the MeTC recalled the arrest warrant it had issued against petitioner under the mistaken belief that petitioner had been duly notified of the October 23, 2003 pretrial setting. Reiterating the Court’s pronouncement in Solar Team Entertainment, Inc. that "speedy trial" is a relative and flexible term, Lumanlaw v. Peralta, Jr. summons the courts to maintain a delicate balance between the demands of due process and the strictures of speedy trial on the one hand, and the right of the State to prosecute crimes and rid society of criminals on the other. Applying the balancing test for determining whether an accused has been denied his constitutional right to a speedy trial, or a speedy disposition of his case, taking into account several factors such as the length and reason of the delay, the accused’s assertion or non-assertion of his right, and the prejudice to the accused resulting from the delay, the Court does not find petitioner to have been unduly and excessively prejudiced by the "delay" in the proceedings, especially given that he had posted bail.
In the case of Apollo vs. Sandiganbayan, the SC reiterated that the right of the State to prosecute its case in order to prosecute criminal offenders is also a protected right. There must have to be also a balancing of interest of claims of the right of the accused to speedy trial and the right of the state to prosecute the offenders of the state. there are 2 rights: 1. right of the accused 2. right of the state
Public Trial The Right to Public Trial is not to be understood to (apply to) everybody i.e. the public to observe the conduct of the trial.
97
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
Public trial is characterized as granting the person of the accused the right to have an open session and only when there is no secrecy in the conduct of the proceeding. There are several exceptions to this: when the nature of testimony is delicate, then the public may be excluded or if the witness is a child witness. Also, under the Rule 119, Sec. 21, the accused may ask for the exclusion of the public for any other reason. Right to Confront Witnesses The right of the accused to meet the witnesses face to face would include the right to cross-examine them. It has a two-fold purpose : 1. to test the credibility of the witness ; 2. to observe the demeanor of the witness when testifying, this is based on the principle that the evidence to be credible must not only be credible in itself but must also come from a credible witness. So in order to test the credibility of the witness the accused must have the right to cross examine. Of course, there are some exceptions. One, from dying declarations. Also during preliminary investigation stage. We all know that even if there should be a clarificatory hearing required by the investigating officer to be conducted, the parties do not have the right to cross examine the other witness. During preliminary conference/investigation, if there are matters which they wish to ask ot the other party on the matter under investigation, the question must have to be coursed through a hearing officer or prosecutor. He can’t be asked directly because there is no right to cross-examine the witnesses of the respondent. Right to Secure the Attendance of Witnesses
subpoena
This would be in reference to right to compulsory process. There is no question that the accused can seek the issuance of a subpoena for the witness to testify in court for his for his defense. That is his constitutional right, among others. No problem with the state because it has all the resources. It can even take care of the expenses of all its witnesses, even if the latter are living outside the 100km limit of their place of residence or office. But for the accused, he does not have the same right with that of the State. The problem is while the accused may have the right to compulsory process that is the extent of his right. Under the rules to issue subpoena, the party requesting for a witness to a subpoena duces tecum requires some fees and expenses. Those are not included in the right of the accused to compulsory process. The accused may still have to shoulder the expenses for the issuance of the service order of the subpoena as well as the expense of the intended witnesses for the defense as requested. The rule of subpoena would be applicable only within
98
100 km ordinary course of travel (rule). Before, we follow the 50 km radius rule. This was amended and it is now 100 km in the ordinary course of travel. If the person intended to be presented by reason of a subpoena resides outside or without (in the place of 100 km in the ordinary course of travel rule), then the subpoena may no longer be effective as to him and he can actually refuse to such subpoena. And he will not face any contempt charges. - does not apply to public officials; only private ones VIATORY RIGHTS Also in relation to subpoena is the so called viatory rights of witnesses—which refers to the right of a witness to refuse to honor the subpoena for valid and justifiable reason . The most common is one when he resides or is in a place more than 100kms. This would apply normally to private citizens and not to public officials. Because if you are a public official witness, the viatory rule does not apply. You can be compelled to be a witness by reason of your position or else you will be held in contempt. The viatory rights can also be claimed by an ordinary citizen witness. Let us say the expenses of his testimony or travel to testify is not paid because that is always part of the obligation of the one requesting the issuance of subpoena to advance and make his payments needed. Again the right merely includes the issuance of the subpoena. But as to the fees and expenses relative to the issuance or service of the subpoena would be another. That is not included in the right of the accused to a compulsory processes. There is Rule 119, Sec. 14— a part of a right of the accused to compulsory process. This is applicable to all but this is most applicable to the accused in criminal case to secure the appearance of a material witness. If a witness is not willing to testify, the witness may be arrested and incarcerated if he does not post bail until he will testify as he is so requested. The bail will not be discharged until he will testify in accordance to the court order. The problem here is if you caused to arrest this person and incarcerate her/him for refusing to testify, his testimony may no longer be in your favor. TRIAL IN ABSENTIA
It is a procedure provided for in the rules as well as in the Constitution with respect to the right of the accused to be present and in relation to he right of the state to prosecute the criminal .The conduct and proceedings of the trial shall not be made dependent upon the presence of the accused. We all know that when the accused has not been arraigned, no proceedings
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES trial in absentia condition
can be validly made. But after the accused has been arraigned and in a hearing, the accused has been duly notified and his absence is unjustified the state may proceed even in his absence . Only when the three conditions are met that there be trial in absentia. The most important is that there must have to be a prior valid arraignment. When the accused is absent in a case for example despite due notice, the court may exercise discretion to hear the case today or transfer it in another day. But if a case he would want to hear today in absentia that is totally valid because of the filing of the petition and the absence is not justified. Nonethe less, if the accused appear in the next schedule hearing, then there is no more trial in absentia as there is the presence of the accused of course. However, if the accused jumps bail there is the effect on his right to hear the proceedings against him and every time the accused jumps bail or escapes from confinement the absence thereafter on account of the jumping bail or the escape from confinement his absence is unjustified and there will be trial in absentia.
obligation to the client who is tried in absentia ends. But before then or until then, the accused’s right to be heard through his counsel will remain.
There are several questions ask with respect to rights of the accused in the constitution as well as those reflected in the rules of court on due process. Is the due process is affected? The answer is no. It will not be affected if the accused jumps bail and he will be tried in absentia, the rights of the accused to due process will not be affected. Still the duty of the prosecution and of the court to ensure that the rights of the due process are observed and accorded even in his absence.
The Privilege against Self-Incrimination under Section 17 is based on two considerations: Consideration of Public Policy and Consideration of Humanity.
The presumption of innocence… the presumption is not simply destroyed because the accused is tried in absentia. There is also related principle in criminal law that plying is indicative of guilt , that the innocent stands while the guilty flees even if no one pursues him , that principle does not automatically destroys the presumption of innocence of the accused. The prosecution has the still 1st the burden to prove prima facie evidence of guilt of the accused. Just because accused jumps bail or escapes confinement does not make the accused guilty beyond reasonable doubt .Actually THAT IS INDICATIVE OF GUILT BUT NOT HE IS GUILTY. The right to be heard personally is waived because he not present and is tried in absencia but the right to be heard by counsel is not affected, the counsel must still act as his the counsel until the counsel is discharged. 3.) The right to be heard personally. Of course that is considered waived because he is no longer present because he is tried in absentia. But the right to be heard by counsel is not affected. The counsel must still act as his counsel until the counsel is discharged. If the counsel is discharged then the
99
4.) Right to speedy discharge in relation to right to counsel is the same. It would still remain. 5.) Right to speedy, impartial public trial. That would, with respect to impartial public trial they would technically not be affected. With respect to speedy trial, there may be some effects though it does not give the State the right or license to delay the proceedings for the trial. Then they must have to conduct trial consistent with the demands of speedy trial taking into consideration the fact of course that the accused has jumped bail or has escaped from prison.
PRIVILIGE AGAINST SELF-INCRIMINATION
Public Policy because to compel a person to testify against himself will place him in the greatest temptation to perjure himself because he has no other way out. He will be compelled under the circumstances to lie about everything so that he will not be placed in jail. The second is humanity: to prevent extorting evidence to convict that person by his own testimony, by compulsion or duress. So the State must be able to prove its case not because it has compelled somebody to provide evidence, but it must prove its case based on available evidence. Now, as we made mention in relation to the discussion of the right of the person under investigation, the privilege against selfincrimination is claimable by any person who is asked an incriminating question. An incriminating question is one the answer to which would subject the person to a penal liability. If it is civil or non-penal liability then that would not be considered as a self-incriminating question. If you joke about it, if you ask a woman her age normally they would not tell her age because that would be self-incriminating. But that is not a self-incriminating question because being old is not a crime ☺ It would not produce a criminal liability. Only that would subject to a criminal liability be considered a self-incriminating question.
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
Now, traditionally, the privilege against self-incrimination is applicable only to those which would be a result of the use of physical or moral compulsion to extort communications or verbal confessions or admissions. So if there is use of duress, force, or any other acts which may vitiate consent to secure the oral, verbal confession or admission of a person that is what is usually covered by the privilege against self-incrimination. So that purely mechanical acts or any incriminating evidence which is not a product of a verbal or oral admission or confession are not covered. For example, in some old cases a person is required to undergo medical examination for purposes of determining whether she is pregnant by reason of an extramarital affair or while a woman undergoes a physical examination to determine such act of pregnancy may be invasive. That is not covered by the privilege because all she has to do would be to lie down there, not say anything, there is no oral admission or confession extorted by reason of the examination. Or in one case where a person was accused of robbery and during such robbery a shoe was left, a size 10 shoe. So that was one of the exhibits presented by the prosecution during trial and the accused was asked to fit the shoe. If the shoe fits, convict. If the shoe does not fit, acquit. The claim of self-incrimination was not allowed because it is a purely mechanical act to fit the shoe. In the O.J. Simpson case as I mentioned last night, if you were familiar with that, one of the defense evidence was to let O.J. fit the leather glove; one piece of those gloves was left and was soaked in blood. So to make the presentation more dramatic, the defense presented that and asked Mr. OJ Simpson to fit the glove. And they used it in the closing argument because the glove did not fit. Of course because it was leather, it was soaked in blood and kept in the laboratory by the custodian. And if you know when a leather is soaked in a liquid like blood, it will necessarily shrink and at that time OJ’s left hand— I think— just like Michael Jackson’s, was surprisingly bloated on that day. Conveniently his hand was big enough. It was made bigger. And then in the closing argument, the defense lead counsel said “If the glove did not fit, you must acquit.” And so they did. What would these ordinary laymen know about the leather glove being soaked in blood? They would never, not that they would never, they would not necessarily know that. So these are the mechanical acts which are not covered by the privilege. However, today, there is some sort of a change in the strict application because of development in jurisprudence that to
100
which if the matter or the “mechanical act” would require the use of one’s intelligence, the use of one’s mind or brain, then it does not become a purely mechanical act. The most common example is handwriting. When the issue in the criminal case involves handwriting, say falsification, it requires the signature, of course, you only falsify a signature. Forgery in our Revised Penal Code refers to bank notes, you make one and make it appear as if it were a valid bank notes. You do not forge a signature. But outside of law school “i-forge na bai, i-forge na bai. Sige i-forge nalang. But it is actually falsification. You make it appear in Articles 171 and 172 of RPC that the person participated in the making of an act when in fact that should not have been done. So when the issue in the criminal case is falsification whether a signature or a writing and the accused is made to copy certain words and phrases to prove that his handwriting is similar to that in the questioned document. The Supreme Court has said that is not a purely mechanical act because to copy a writing with his own handwriting would require him to use his intelligence or use of his brain. So it would go with an act that an accused is required to… by the police officers to reenact a crime. In reenactment, if the person is compelled, again there must be compulsion, to reenact a crime then it may be covered by the privilege because the accused will have the right to refuse to answer the question requiring him to reenact the commission of the offense. Because if he really did the act or crime, that he would have to recall what he had done with the use of his intelligence or his brain or his mind and it is not a purely mechanical act. The problem however with this privilege against self-incrimination although it is applicable to any person, in any proceedings regardless of whether it is civil or criminal or administrative, whether the person is the accused or party defendant maybe or an ordinary witness is that this right is waivable immediately upon the fact that the question is answered. Unlike in say, rights under investigation even if you answered right then and there, even if you said I do not need a lawyer, but if such waiver is not valid in law you can still ask for its exclusion when it is presented in evidence. But in the privilege against self-incrimination, to refuse to answer under a claim of the privilege of an incriminating question, it must have to be raised before the question is answered. Once the question is answered, it is automatically. You can not say Oopps!
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
Mali ako. Can I have it stricken off the record? In fact it can not be done because you must have to claim it before it is answered. That is why we said the difference between the privilege and the right under Section 12 is that, in Section 12 you can have it excluded later. And in Section 17 you can not. You must refuse to answer by claiming the privilege. Also in section 12, if there is a lawyer assisting you, the lawyer may very well that if it is the investigation is conducted he may very well protect your rights by preventing you from answering the question because there is a lawyer assisting the confessant during an investigation. But in section 17, let us say, as made mention yesterday, if you were to make an investigation in the company level and the employee was not assisted by a counsel, he may not know of his privilege against self-incrimination. He may be answering these questions subjecting himself not only by answering administrative liability on account of his employment or by violation of company rules and policy but he may open himself up to a criminal liability. So, for example, a cashier in a private company has been charged administratively of a violation of a fact that he has taken some money she has received in trust for the company and this was for cashier’s violation of company’s rules and violation against taking company property and when it is considering it may result to dismissal even if it were committed as a first offense based on company’s rules. Now if the cashier answers that question: “did you take that? Yes. Do you admit how much money? Yes. And used it for your own benefit?” The cashier may not only be liable administratively, the cashier can be dismissed from employment and he can also be subjected to a criminal liability. And the claim that he was not afforded his Miranda warnings during that administrative investigation will not prevent the filing of the criminal case nor the admission of his testimony during that administrative proceeding because he was not actually investigated for a commission of an offense but for a commission of an act in violation of a company rule.
IMMUNITIES
The final item would be the so-called immunities. In your outline, there are two immunities stated. They are USE IMMUNITY and TRANSACTIONAL IMMUNITY. There are situations where a person maybe compelled to testify and by reason of his compulsion to testify, his right against self-incrimination maybe
101
violated in order not to put him in jeopardy or be penalized for such compulsory admission or confession which he cannot escape by reason of being invoked that would always or usually would grant that person some form of immunity from prosecution either under the innocent rule or transactional rule. The most common of TRANSACTIONAL IMMUNITY is that there is an agreement between that person and the investigating body or person that any testimony will be provided for the crime under investigation cannot be used against him. So there is an agreement. The most common of which is when the person of the accused is discharged as a state witness. When can an accused be discharged as a state witness under our rules of court? There are several accused and he (one of them) does not appear to be the most guilty; there is no other direct testimony that may be utilized by the prosecution to prove the guilt of the accused. And there is the requirement that the testimony of the State Witness can be corroborated by other witness on certain material point. It is also required under the Rules of Court that the state witness must have to execute an affidavit which would contain his testimony for which he must actually testify. If he does not testify on that then it is not. If he refuses to testify based on the terms of the discharge, the discharge will not be valid; he can still be prosecuted and the transactional immunity cannot be claimed. There are situations wherein the State Witness is discharged only and eventually the prosecution may think that they may no longer need the testimony of the State Witness. So if it was not his fault that he was not able to testify, then, the transaction may still be valid and the immunity still stands. But if the failure is based on his refusal, then, the transaction will be invalidated and the discharge will not be applied. NOTE: The USE and FRUITS IMMUNITY, as the term suggests, would simply exempt that person investigated, and who has been compelled to give incriminating answers, from the use of his testimony and the fruits of his testimony against him. Meaning, if there are still other evidence which could be used to prove his guilt, then, he may still be prosecuted and will not exempt him from prosecution. The State will use other evidence that are outside of what he has provided for the fruits of his testimony of which he has been compelled to provide. RIGHT TO SPEEDY DISPOSITION OF CASES
In relation to your periods of deciding cases not only for the Courts, but as well as for the administrative agencies. Now,
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
under the Rules of Court, how long in time is given to the investigating prosecutor to resolve cases filed in the prosecution office and under preliminary investigation. How long? 30 days? From the time the case is needed for resolution. In Article 7, Section 18, if the Supreme Court hears a petition for the questions on the sufficiency of factual basis for the declaration of Martial Law or for the suspension of the privilege of the writ of habeas corpus. How many days does the Supreme Court have to decide the petition? 30 days from the filing of the petition. And not from the time the case is submitted for decision. And under Article 8, Section 15, there are several periods for the Supreme Court, how long? 24 months. For the lower collegiate courts, 12 months. For the Lower courts, 3 months from the time the cases are submitted for resolution or decision. We have learned that this period in the Constitution for the Court to decide or issue a decision is considered mandatory with respect to the judges or the justices to promulgate their decision; but are considered directory when it refers to the validity of the decision, meaning, decisions rendered outside of these mandatory periods do not make these decisions invalid. Nonetheless, they are mandatory against the judges or justices concerned. If they fail to comply with these periods, they shall be subjected to some form of administrative liability, from reprimand up to fines. You have come across several cases where the judges are fined for failing to resolve the cases within the said mandated periods. Now, you will notice in your outline, this case of DIMARUCUT VERSUS PEOPLE OF THE PHILIPPINES. There was an abandonment of an appeal. The court still applied the rule on speedy disposition of justice even if the appeal had been abandoned. The court still resolved it, dismissed it, on consideration that there is still this right to speedy disposition of cases. DIMARUCOT vs. PEOPLE OF THE PHILIPPINES 630 SCRA 456 Section 8, paragraph 1, Rule 124 of the Revised Rules of Criminal Procedure, as amended, provides: SEC. 8. Dismissal of appeal for abandonment or failure to prosecute. – The Court of Appeals may, upon motion of the appellee or motu proprio and with notice to the appellant in either case, dismiss the appeal if the appellant fails to file his brief within
102
the time prescribed by this Rule, except where the appellant is represented by a counsel de oficio. It is clear under the foregoing provision that a criminal case may be dismissed by the CA motu proprio and with notice to the appellant if the latter fails to file his brief within the prescribed time. The phrase "with notice to the appellant" means that a notice must first be furnished the appellant to show cause why his appeal should 13 not be dismissed. In the case at bar, there is no showing that petitioner was served with a notice requiring him to show cause why his appeal should not be dismissed for failure to file appellant’s brief. The purpose of such a notice is to give an appellant the opportunity to state the reasons, if any, why the appeal should not be dismissed because of such failure, in order that the appellate court may determine whether or not the reasons, if given, are satisfactory. Notwithstanding such absence of notice to the appellant, no grave abuse of discretion was committed by the CA in considering the appeal abandoned with the failure of petitioner to file his appeal brief despite four (4) extensions granted to him and noncompliance to date. Dismissal of appeal by the appellate court sans notice to the accused for failure to prosecute by itself is not an indication of grave abuse. Thus, although it does not appear that the appellate court has given the appellant such notice before dismissing the appeal, if the appellant has filed a motion for reconsideration of, or to set aside, the order dismissing the appeal, in which he stated the reasons why he failed to file his brief on time and the appellate court denied the motion after considering said reasons, the dismissal was held proper. Likewise, where the appeal was dismissed without prior notice, but the appellant took no steps either by himself or through counsel to have the appeal reinstated, such an attitude of indifference and inaction amounts to his abandonment and renunciation of the right granted to him by law to prosecute his appeal. Here, the Court notes the repeated non-observance by petitioner and his counsel of the reglementary periods for filing motions and perfecting appeal. While still at the trial stage, petitioner’s motion to admit and demurrer to evidence was denied as it was not seasonably filed (petitioner was granted fifteen (15) days from August 8, 2001 within which to file demurrer to evidence but filed his motion to dismiss only on September 4, 2001), in accordance with Section 23, Rule 119 of the Revised Rules of Criminal Procedure, as amended. Before the CA, petitioner and his counsel filed no less than four (4) motions for extension to file brief, which was never filed nor attached in the motion for reconsideration of the August 29, 2007 Resolution dismissing the appeal. The last extension given expired on June 6, 2007, without any brief submitted by petitioner or his counsel. And even when he filed the Omnibus Motion on May 8, 2008, still no appellant’s brief was attached by petitioner. Neither did petitioner file any petition before this Court questioning the validity of the August 29, 2007 resolution and the November 27, 2007 denial of his motion for reconsideration. The dismissal of his appeal having become final, it was indeed too late in the day for petitioner to file the Omnibus
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
Motion on May 8, 2008, which was four (4) months after the finality of the resolution dismissing the appeal. Having been afforded the opportunity to seek reconsideration and setting aside of the motu proprio dismissal by the CA of his appeal for non-filing of the appeal brief, and with his subsequent inaction to have his appeal reinstated after the denial of his motion for reconsideration, petitioner cannot impute error or grave abuse on the CA in upholding the finality of its dismissal order. Noncompliance with the requirement of notice or show cause order before the motu proprio dismissal under Section 8, paragraph 1 of Rule 124 had thereby been cured. Under the circumstances, the petitioner was properly declared to have abandoned his appeal for failing to diligently prosecute the same.
In this case of ANGELES VERSUS SEMPIO-DIY, the court here also asked for several extensions because a Motion for Reconsideration was not resolved within a period of six months. However, the Supreme Court admonished the judge’s concern even if there were several extensions sought; the Court said that the judge must still resolve such motion within a reasonable time limit, 3 months. A.M. No. RTJ-10-2248 September 29, 2010 JUDGE ADORACION G. ANGELES vs. JUDGE MARIA ELISA SEMPIO DIY It appears that respondent has simply forgotten about the pending motion for reconsideration in Criminal Case Nos. Q-95-61294 and Q-95-62690 after said cases became inactive due to the failure of the defense to submit its reply. The realization of the blunder came only during the semi-annual inventory of the court’s cases. This situation could have been avoided had respondent adopted an effective system of record management and organization of dockets to monitor the flow of cases for prompt and efficient dispatch of the court’s business. Elementary court management practice requires her to keep her own records or notes of cases pending before her sala, especially those that are pending for more than 90 days, so that she can act on them promptly and without delay.
The case of RAYMUNDO VERSUS ANDOY … the Summary Rules, BP 22 Case… the case was submitted for decision on October 19, 2005 and a Motion for Reconsideration was filed on 2006. The judge despite two motions to render judgment failed to render a decision or resolution on the motion for reconsideration after 3 years. The judge here was fined Php 20,000.00. A.M. No. MTJ-09-1738 October 6, 2010 (Formerly OCA I.P.I. No. 08-2033-MTJ) CIRILA S. RAYMUNDO vs. JUDGE TERESITO A. ANDOY
103
The Constitution mandates that all cases or matters filed before all lower courts shall be decided or resolved within 90 days from the time the case is submitted for decision. Judges are enjoined to dispose of the court’s business promptly and expeditiously and to decide cases within the period fixed by law. Failure to comply with the mandated period constitutes a serious violation of the constitutional right of the parties to a speedy disposition of their cases – a lapse that undermines the people’s faith and confidence in the judiciary, lowers its standards and brings it to disrepute. This constitutional policy is reiterated in Rule 3.05, Canon 3 of the Code of Judicial Conduct which requires a judge to dispose of the court’s business promptly and decide cases within the required periods. In the present case, the subject cases had been submitted for decision since October 12, 2005. As correctly pointed out by the OCA, while the respondent judge attributed his failure to render a decision to the heavy caseload in his sala, he did not ask for an extension of time to decide the cases. This failure to decide within the required period, given that he could have asked for an extension, is inexcusable; it constitutes neglect of duty as well as gross inefficiency that collectively warrant administrative sanction.
Unlike speedy trial, if there is a valid claim and the grant is also valid and justified, it will be put to a stop to the criminal prosecution. It means that the Court will grant the right of the accused to speedy trial, will dismiss the case, and the dismissal is always with prejudice. It would be considered as an adjudication of the merits, and the accused is thereby freed. But if all the evidences are in, the trial has already been terminated and the only reason why there is no disposition yet is because the court has failed to resolve the case by failing to render a decision or failing in to render a resolution on the motion for reconsideration on account of a motion for reconsideration filed. This will not mean that if the right to speedy disposition of cases is claimed that that court will consider the case dismissed. The only situation, as you may have noticed in all these cases on the speedy disposition of the cases you may have read, that will result in the dismissal of the charges is when it is still on reinvestigation stage. Take for example the old case of TATAD VERSUS SANDIGANBAYAN. When Tatad was investigated it took eleven years for the investigation to be completed. And so when Tatad asked for dismissal, the Sandiganbayan refused. However, the Supreme Court granted the petition, and it caused the dismissal of the case because there is no justifiable reason why the investigation by the investigating officer would determine whether there is probable cause or well founded belief to charge
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
respondent in court. This is not a full-blown trial on the merits where the guilt or innocence of the accused is determined. So if there is such delay, again, the Supreme Court has used the FOUR FOLD FACTORS: the length of the delay in disposing the case; the reason for such delay in disposing the case; the fact that the respondent has claimed or not claimed his right to speedy disposition of cases, and the prejudice that is caused by the delay on the person of the respondent. The Supreme Court has applied the FOUR FOLD FACTORS to balance if whether the State has still the right to prosecute upon finding probable cause or should the accused be freed from the anxiety of criminal prosecution despite the lapse and delay in resolving whether or not there is probable cause to charge him in court. Again, when there is already full presentation of evidence, the clam for speedy disposition of cases will not be resolved for dismissal. But if there is yet to be a formal charge or information in court, the delay will be or within the stage of the investigation level then the court may grant the right to resolve the claim for speedy disposition of cases which eventually dismiss the case. This must have to be related to the provisional dismissal of cases, which we shall be taking up later, based on double jeopardy. The same principle must still be applied in provisional dismissal. You remember this TIME BAR RULE, right? The one year period. Does that change the substantive law on presentation of offenses? The answer is no. But under the TIME BAR RULE, the principle is that, if there is failure to prosecute within that one or two years, there is a disputable presumption that the State could no longer prove this case and it therefore waived to prosecute the offender. The rationale behind the TIME BAR RULE is the same with disposition of cases when the case is still under investigation. If indeed, there is a prima facie case or probable cause and wellfounded belief to charge accused in court, why take so long? It does not need a full-blown trial on the merits. But the investigating officer has to read and compare the complaint, counter-affidavits and other pleadings. If there is so much unjustified delay, then there is that presumption that the State waived its right to prosecute; and therefore it dismissed the criminal charges, and not the information itself as there is yet to be one.
the conduct of preliminary investigation, including substantial compliance with the time limitation prescribed by the law for the resolution of the case by the prosecutor, is part of the procedural due process constitutionally guaranteed by the fundamental law. Not only under the broad umbrella of the due process clause, but under the constitutional guarantee of "speedy disposition" of cases as embodied in Section 16 of the Bill of Rights (both in the 1973 and the 1987 Constitutions), the inordinate delay is violative of the petitioner's constitutional rights. A delay of close to three (3) years can not be deemed reasonable or justifiable in the light of the circumstance obtaining in the case at bar. We are not impressed by the attempt of the Sandiganbayan to sanitize the long delay by indulging in the speculative assumption that "the delay may be due to a painstaking and gruelling scrutiny by the Tanodbayan as to whether the evidence presented during the preliminary investigation merited prosecution of a former high ranking government official." In the first place, such a statement suggests a double standard of treatment, which must be emphatically rejected. Secondly, three out of the five charges against the petitioner were for his alleged failure to file his sworn statement of assets and liabilities required by Republic Act No. 3019, which certainly did not involve complicated legal and factual issues necessitating such "painstaking and gruelling scrutiny" as would justify a delay of almost three years in terminating the preliminary investigation. The other two charges relating to alleged bribery and alleged giving of unwarranted benefits to a relative, while presenting more substantial legal and factual issues, certainly do not warrant or justify the period of three years, which it took the Tanodbayan to resolve the case.
KINTANAR, LOVELY LIMBO-CABUHAT, VERNA DINIAY, DONNI
You can only become truly accomplished at something you love. Don’t make money your goal. Instead pursue the things you love doing and then do them so well that people can’t take their eyes off of you.” ― Maya Angelou
G.R. No. 72335-39 March 21, 1988 FRANCISCO S. TATAD vs. SANDIGANBAYAN We find the long delay in the termination of the preliminary investigation by the Tanodbayan in the instant case to be violative of the constitutional right of the accused to due process. Substantial adherence to the requirements of the law governing
104
“...kapag binisita ka ng idea, gana o inspirasyon, kailangan mong itigil LAHAT ng ginagawa mo para lang di masayang ang pagkakataon. Walang “sandali lang” o “teka muna”. Dahil pag lumagpas ang
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
maikling panahong yon, kahit mag-umpog ka ng ulo sa pader mahihirapan ka nang maghabol.” ― Bob Ong, Stainless Longganisa
105
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
The future belongs to those who believe in the beauty of their dreams.
Eleanor Roosevelt
August 30, 2012 SUBSTANTIVE RIGHTS UNDER THE DUE PROCESS CLAUSE
A. What acts cannot be criminalized Section 18. No person shall be detained solely by reason of his political beliefs and aspirations. Mere beliefs and aspirations under Sec. 18 (1)… this is part of freedom of political beliefs. This is actually a part of the general discussion of due process as well as on the free speech and expression. In relation to free speech on the so called freedom of thought or freedom of thoughts, for so long as it remains in the realm of thought, no person should be penalized for such mere beliefs and aspirations. As we all know, once the thoughts are converted into overt acts, these overt acts may be subjected to reasonable regulations. Non-imprisonment for non-payment of debts and other civil obligations under Sec. 20 Section 20. No person shall be imprisoned for debt or non payment of a poll tax. This is largely traceable to the age of slavery in the US experience because the prohibition is based on coercive payment or non-payment of debt, either by cancellation of the debtor or his being taken as a slave for failing to pay an honest debt. It must be remembered however with respect to debts and civil obligations that the liability to pay the money or debt must be one arising from contract which must constitute a debt, whether express or implied. And that payment or the act of compelling payment must have to be by reason of a valid contract and not one which may have been entered through fraud or misrepresentation. So this old case of Lozano vs. Martinez with respect to the constitutionality of Batas Pambansa Bilang 22 while ostensibly it
106
would show that the penalty imposable under the said law was placed there to compel, to make good the payment of the check, the check being paid for an outstanding obligation. The fact that the issuance of check was attended by fraud takes it away from the protection of non-payment or non-imprisonment for nonpayment of civil debts and obligations because that would substantively change the nature of the violation of a mere civil obligation to one which would be criminal in character. As have been discussed therein the Supreme Court said that the gravamen of the offense is the introduction into the economy or in circulation checks which are valueless or which would bounce or without which could not have been cashed upon presentment or when it is presented for payment when it is due and demandable. So it is not simply by reason of non-payment of a debt. Lozano vs. Martinez (Dec. 18, 1986) Facts: A motion to quash the charge against the petitioners for violation of the BP 22 was made, contending that no offense was committed, as the statute is unconstitutional. Such motion was denied by the RTC. The petitioners thus elevate the case to the Supreme Court for relief. The Solicitor General, commented that it was premature for the accused to elevate to the Supreme Court the orders denying their motions to quash. However, the Supreme Court finds it justifiable to intervene for the review of lower court's denial of a motion to quash. Issue: Whether BP 22 transgresses the constitutional inhibition against imprisonment for debt. Held: The offense punished by BP 22 is the act of making and issuing a worthless check or a check that is dishonored upon its presentation for payment. It is not the non-payment of an obligation which the law punishes. The law is not intended or designed to coerce a debtor to pay his debt. The thrust of the law i s to prohibit, under pain of penal sanctions, the making of worthless checks and putting them in circulation. take note of the term - contractual debts
So is the same reason for the subsidiary imprisonment for nonpayment of a fine. Under the Revised Penal Code the judgment imposed of penalizing the accused to pay a fine and if such fine may not be paid, subsidiary imprisonment may be imposed. That is not a violation of this Section 20 because the payment of a fine is not a payment of a contractual debt. It is supposed to be a form of a penalty which if not paid can make the accused convict subjected to subsidiary imprisonment. Acts which when done were innocent this discusses the concept of ex post facto laws as well as bill of attainder under Section 22.
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
Section 22. No ex post facto law or bill of attainder shall be enacted. A bill of attainder technically involves a law which makes a person liable for the crime defined therein without the need of a judicial trial. Technically by history it is supposed to impose the capital penalty. If it is less than the capital penalty it is supposed to be called bills of pains and penalties not bills of attainder. But in our jurisdiction there is not much distinction between the penalties imposable without need of judicial trial. If there is such a law it will be considered as a bill of attainder. To distinguish it from the ex post facto law, a bill of attainder is always ex post facto, meaning it is always applied retroactively to cover acts which when done were not supposed to be criminal or punishable. Conversely however, not all ex post facto laws are considered bill of attainders because the 6 most common listed forms of ex post facto laws are not necessarily bill of attainders because they do not impose a penalty without a judicial trial. The 6 common instances of ex post facto laws are: 1. It criminalizes an act which when done was innocent; 2. It aggravates a crime; 3. It changes a penalty of a crime and increases it; 4. One which alters legal rules of evidence requiring less for conviction; 5. One which assumes civil rights or remedies but in effect penalizes an innocent man; and 6. Deprivation of some lawful protection such as former conviction, acquittal or amnesty. Now these 6 situations or instances must have to be applied retroactively. Because if there is prospective application as it is always presumed when there is a criminal statute passed by Congress, then this is not considered as ex post facto law because the covered subjects or persons targeted by the law can avoid being penalized under a new law which is applied prospectively by refusing to commit the act or by nonperformance of the act or omission covered by the said new law. What makes it ex post facto in any of the 6 circumstances is when the law is applied retroactively and therefore there is no escape from liability from the targeted class of persons or requirements. What punishments cannot be imposed? INVOLUNTARY SERVITUDE
107
Section 18. x x x No involuntary servitude in any form shall exist except as a punishment for a crime whereof the party shall have been duly convicted. The first there is under Section 18 (2) that would be involuntary servitude. We all understand that involuntary servitude is allowed only when it is so provided for in the Constitution or by law. And these would cover only involuntary servitude based upon a lawful order of the court. The other is when there is involuntary servitude in the sense or in the form of compulsory military or civil training with respect to defense of the State. When we discussed the freedom of religion we discussed that matter of conscientious objector, a person by reason of his freedom of conscience or thought or religion may object to such form of compulsory military service because this is disallowed by his religion. But nonetheless that is a form of an involuntary service that the Constitution would allow. Now similar with non-imprisonment for non-payment of debt, this involuntary servitude was based on the anti-slavery provision in the American Constitution under its Thirteenth Amendment. The 13th Amendment of the US Constitution prohibits or punished acts of slavery. This technically ended the slavery period as practiced in the American jurisdiction. However when as mention if it is by reason of punishment for a crime upon a lawful order of the court where the accused has been duly convicted there may be a form of involuntary servitude. And when one is under detention to serve the sentence this form of forced labor, the chained gangs during the days of slavery have been reaming as rehabilitation. So when prisoners are compelled to perform work, they are not actually forced to work but are actually rehabilitated. This is part of their rehabilitation in order to make them ready for their future reintegration into the society. Now the early cases on domestic service which are the usual form of involuntary servitude are before the enactment of the Labor Code and its amendment particularly on the rights and benefits or privileges of helpers or house helpers. The common practice is that these house helpers if they would still have some debt from their employers they are made to work continuously until their debts are paid. Under the Labor Code now as amended in relation to the rights of house helpers that are not supposed to be allowable. If the employer still has money claim against the house helper or employee then the employee cannot be forced to continue working because that is a form of involuntary servitude.
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
EXCESSIVE FINES, CRUEL, DEGRADING AND INHUMAN PUNISHMENTS
Section 19. 1. Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment inflicted. Neither shall death penalty be imposed, unless, for compelling reasons involving heinous crimes, the Congress hereafter provides for it. Any death penalty already imposed shall be reduced to reclusion perpetua. Now the form of punishments to make them excessive, cruel, degrading or inhuman is not the type, kind of imposable punishment which makes it excessive, cruel, degrading or inhuman. There are acceptable forms of penalties like death for example. Death per se is not supposed to be cruel, degrading or inhuman. Or it should refer to a fine just because the fine is of such amount that it should be considered to be per se as excessive. With respect to the imposition of the fine, what makes it excessive is when the penalty of fine must be flagrantly or grossly disproportionate to the offense no matter under what circumstance the offense may be committed. Differently stated, if there is no public interest consideration in the imposition of the fine and therefore the imposed fine or the fine as imposed by law which may be imposed by the court is so grossly disproportionate then the fine maybe excessive. But by reason of certain considerations of public interest, more common example would be price control laws or for example special protection for special kinds of people like special protection to children under Republic Act 7610. You may have noticed that in 7610 the imposed penalties of incarceration as well as fines are so much increased. Even the recommendation for bail, places 7610 under heinous offenses, where the normal recommendations with the Department of Justice is P1,000 for every year of imprisonment has been provided for by law, in 7610 places it under heinous offenses the recommended bail is normally placed at P10,000.00 for every year of service. So for slapping a child which is supposed to be slight physical injuries where there may be no warrant of arrest issued, if it is under 7610 it becomes a minimum of prision mayor. That is a special law because of the intent of Congress to protect special, in this case children. So absent any of these special circumstances affecting the imposition of a fine that it will be greatly disproportionate and in the language in another case it is “flagrantly and plainly oppressive that shocks the moral senses of the community”, then it will be considered as excessive. Again it is not the value as imposed but it should be based on lack of any
108
special consideration for imposing the fine which will make it grossly disproportionate to the offense having been committed and to the penalty to be imposed for that particular offense. The cruel, degrading and inhuman punishment refers to the form or character of the penalty or how it is implemented rather than the severity of the penalty. Acceptable in our jurisdiction would be incarceration for certain periods as well as the capital penalty of death. Those per se are acceptable forms of penalties. But as to the character of form of that penalty or as to how the penalty is implemented may make the penalty cruel, inhuman or degrading. Death now in the Philippines at least per law which has been suspended will be implemented by lethal injection. In some states in the US they still have this death penalty and most are by lethal injection. I don’t think in China they have lethal injection, they have firing squad. You have to pay for the cost of the bullet that is to be placed at the back of your head. So for them it is not cruel, degrading or inhuman. And it is largely based on societies and for those who probably would not believe in the propriety of the imposition of death penalty, death for them per se is not acceptable, it is cruel, degrading and inhuman. But there is a debate whether death per se or it is the manner that death penalty is supposed to be imposed. In one case the Supreme Court said that if it is supposed to be considered cruel, degrading and inhuman, it must be one that involves torture, lingering death or something barbaric or barbarous. It is the severity with respect to the implementation of the penalty imposed. Imprisonment, we have accepted it that there are ranges, and there is a range that even what we know as reclusion perpetua. How long is reclusion perpetua? Better than cadena perpetua which we know as marriage. ☺ PROTECTION AGAINST DOUBLE JEOPARDY
Section 21. No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act. There are two basic situations contemplated, the same act and the same offense. The same act rule or the same offense rule are the two situations contemplated under Section 21. The same act, which is the 2nd sentence actually, when an act is punished by a statute and an ordinance, the prosecution, conviction or acquittal in one constitutes a bar to another prosecution. This is to prevent from being harassed or punished twice for the same act. It’s easy to understand, one act is punished by a national law
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
or statute and the other is by a local ordinance. So that if one is prosecuted, convicted or acquitted in one, in either the law or the ordinance, then that person may no longer be charged again for the same act in relation to the other. This has been provided as the second situation contemplated in the double jeopardy rule because the original context of the double jeopardy protection only covers the same offense rule. Under the same offense rule, if a person is charged before a statute in an ordinance it could never fall under the same offense rule because both laws are not enacted by the same legislative body. One is by a local council and the other is by a statue and normally they do not have the same elements or one is not necessarily included in the other or vice versa and therefore there could be no protection from being prosecuted twice for the same act. Now that has been added on again as part of the double jeopardy protection. Now with respect to the same offense rule, an act must be punished by the same statute or of different statutes but are considered of the same offense. Of the same statutes or of different statutes but they are considered to be falling under the term same offense. The reason for this is to prevent from being harassed or punished twice for the same offense not for the same act. Now invariably you have come across a lot of cases involving double jeopardy and the requisites of double jeopardy would range from 3 to 5 to 6, depending on the decision of the Supreme Court. But to put in simpler terms, the requisites of double jeopardy are as simple as: 1. The first jeopardy must have attached; and 2. The accused is charged for the same offense. Those are the simplest requisites of when the double jeopardy protection would be claimable. The first jeopardy has attached and he is charged again for the same offense. But when should the first jeopardy attach? This is when the decisions of the Supreme Court would put on all those 5 or 6 conditions as depending on who wrote the decision. So, 1. there must have to be a court of competent jurisdiction; 2. that there is a valid information sufficient in form and substance; 3. that the accused must have been validly arraigned; – meaning there is a valid entry of plea 4. that the case has been terminated, dismissed or the accused have been convicted or acquitted; (and then they put on the next) 5. that the accused is charged for the same offense But if we try to look into when is it considered that the first jeopardy have attached, it simply would require that there is a
109
valid indictment in a court with competent jurisdiction with the case has been dismissed without the express consent of the accused or that the accused have been convicted or acquitted. And then the second requisite would be that the accused is charge for the same offense. When we say that there is a court of competent jurisdiction, obviously the simplest test there is on the penalty ranges. But because of the Supreme Court circulars on other special courts, there are some cases which would discuss that if this should have been tried in a special court, even in the same RTC that court which is not designated as a special court where that case or information should have been filed would be considered that the court has no jurisdiction, so the first jeopardy will never attach. So, again while ordinarily the penalty range is determinative of whether the court has jurisdiction or not, there are special instances by reason of Supreme Court circulars in relation to existing laws that special courts re designated to handle special kinds of cases. When is information considered sufficient in form and substance? If just like in your Criminal Procedure the information is sufficient to convict the accused. Meaning there is at least a prima facie recitation of facts in the information which is sufficient to afford a conviction. So that if conversely the information is totally defective in form and substance even if the accused pleads guilty thereto, the accused cannot be convicted of any crime simply because the information charges no offense. Now, with respect to the case being dismissed without the expressed consent of the accused, that would accept of two exceptions. The first would be when the accused invokes his right to speedy trial. Of course when the accused files a motion to dismiss invoking his right to speedy trial that is with his consent. But nevertheless because we all know that the court grants the dismissal because of the valid claim of right to speedy trial, it is considered an adjudication on the merits, the accused is considered acquitted and first jeopardy will attach. The second situation is when the accused files a demurrer to evidence. We all know that after the presentation of the prosecution’s evidence, the accused may ask within five days therefrom motion for leave to review to evidence and file thereafter within ten days from the grant the demurrer to evidence, simply asking the court that based on the prosecution’s evidence, the evidence cannot be sufficient to prove his guilt
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
beyond reasonable doubt. If the court grants it even if the dismissal is sought by the accused, it is considered an adjudication on the merits, the accused considered acquitted and therefore first jeopardy will attach. When the second offense is filed, when is it considered that it is filed for the same offense? One, it is literally for the same offense. The second case is literally the same as that of the first. When the second case is an attempt of the crime subject of the first case. Third, when the second case is a frustration of the crime subject of the first case. Next, when the second offense is necessarily included in the crime subject of the first offense. So necessarily included, meaning all of the elements in the second case constitutes some of the elements of the first case. Good example would be second case is homicide, first case is murder. And conversely if the second offense necessarily includes that of the first case. Some of the elements in the second case constitute all of the elements of the first case. And under the Rules of Court, when there is a valid plea of guilty to a lesser offense. Under the present rules now, the plea of guilt to a lesser offense is subject to two conditions: 1. There must have to be the express consent of the private offended party and of the prosecutor. That of the private offended party can be dispensed with if that private offended party fails to appear during the pre-trial but generally, his consent must have to be sought also when there is a plea of guilt to a lesser offense. 2. The second requisite which is the more important requisite is that the lesser offense must necessarily be connected or included in the offense charged. Prior to this amendment in the Rules of Criminal Procedure, you can plead guilty to any lower offense. There is no requirement that the lower offense must be included in the original offense as charged. So you were charged before with say rape, you can plead guilty to the felony of trespass to dwelling or illegal whatever. Now it must necessarily be included in the offense charged. So if you are charged say of murder, can you plead guilty to a lesser offense of physical injuries? So the question is is physical injuries necessarily included in murder? Is it? Pitik nimo ang mata, naigo, nilakay, naa may lansang, homicide. Okay, for so long as the lesser offense is necessarily included in the original offense as charged then you can.
110
Now the exceptions to the application of the claim of double jeopardy: 1. Supervening fact. In the supervening fact, it presupposes that the graver offense was or has developed as a supervening fact after the first jeopardy had attached. Now there are three cases here in your outline: Melo vs. People, People vs. City Court and People vs. Yorac. In this case of Melo vs. People, it involved the supervening fact doctrine. So for example the accused was charged with attempted homicide, he immediately pleaded guilty but the victim was not yet discharged from the hospital, even if the accused has already pleaded guilty and thereafter died of the same injuries he sustained which was then present when the accused was charged and was convicted of attempted homicide. Will the case for consummated homicide now be allowable or would it be barred by reason of double jeopardy protection? The answer is it should be allowed because of the concept or the doctrine of supervening fact. MELO VS. PEOPLE The rule of identity does not apply when the second offense was not in existence at the time of the first prosecution, for the simple reason that in such case, there is no possibility for the accused, during the first prosecution, to be convicted for an offense that was then inexistent. Thus, where the accused was charged with physical injuries and after conviction, the injured person dies, the charged for homicide against the same accused does not put him twice in jeopardy.
In a later case, the SC, the case of People vs. Yorac, the SC did not apply the supervening fact doctrine because the victim was mauled and he was hit in different parts of his body including his head but the initial medical examination showed that his injuries will heal or there is only a 10-day period for him to heal or to be out of his regular confinement(?) for which he was only charged with slight physical injuries. Not more than 10 days, slight physical injuries. The accused upon arraignment has pleaded guilty and was sentenced accordingly. However, when the victim was still in the hospital had undergone another medical examination. And found that under the second medical examination that the victim was actually suffering from or has suffered from severe head concussion which if not attended may result to his death. There was actually a crack which was not seen before when he underwent his first medical examination. So they filed this time another case for frustrated murder and the SC
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
said that this is not a supervening fact. The injury was there before, however, it was not discovered and so the 2. Second exception now has been provided for by the rules, the facts constituting the graver offense became known or were discovered only after the filing of the former information. I think that they put it in a very simple term that there is a filing of a former information. It should have been that after the first jeopardy could have attached. Filing an information and there must have to be arraignment at least of the accused. At the very least. Just the same when it could not be a supervening fact, the fact constituting graver offense was discovered or was made known to him only after the first information. 3. When there is an invalid plea of guilt to a lesser offense. PEOPLE VS. YORAC (1971) Rodrigo Yorac was prosecuted for frustrated murder arising allegedly from having assaulted, attacked, and hit with a piece of wood the offended party, for which he had been previously tried and sentenced for slight physical injuries, his plea being one of guilt. The later information for frustrated murder was based on a second medical certificate after the lapse of one week from the former previously given by the same physician who, apparently, was much more thorough the second time, to the effect that the victim did suffer a greater injury than was at first ascertained. The lower court, considering that there was no, supervening fact that would negate the defense of double jeopardy, sustained the motion to quash. Issue: Whether the defendant, who had already been convicted of slight physical injuries before the City Court of Bacolod for injuries inflicted upon Lam Hock, and had served sentence therefore, may be prosecuted anew for frustrated murder for the same act committed against the same person. Held: If after the first prosecution “a new fact supervenes on which defendant may be held liable, resulting in altering the character of the crime and giving rise to a new and distinct offense, “the accused cannot be said to be in second jeopardy if indicted for the new offense.” We attribute the new finding of fracture, which evidently lengthened the period of healing of the wound, to the very superficial and inconclusive examination made on December 10, 1956. Had an X-ray examination been taken at the time, the fracture would have certainly been disclosed. The wound causing the delay in healing was already in existence at the time of the first examination, but said delay was, caused by the very superficial examination then made. As we have stated, we find therefore that no supervening fact had occurred which justifies the application of the rule in the case of Melo vs. People and People vs. Manolong
111
for which reason we are constrained to apply the general rule of double jeopardy.”
Motions for reconsiderations or appeals. Generally, if there is an acquittal, there is no motion for reconsideration or appeal allowed. Well there is always an exception from that general rule, if there is a denial of due process on the part of the State. When the State is precluded by reason of grave abuse of discretion from publicly trying the accused in proving his guilt, the trial court supposed to be ousted of its jurisdiction. And the people or prosecution may therefore seek a review of the dismissal order or acquittal order by the trial court. There is one case here in your outline, the case of Flores vs. Montemayor . This case involves a BIR Regional Director in Region IV who was charged with the Presidential Anti-Graft Commission (PAGC) for failing to include in his SALN 3 motor vehicles (an Expedition, Land Cruiser and a Galant) and so he was charged administratively in the PAGC and the PAGC recommended to the Office of the President that he be removed from service. Before the Office of the President was able to promulgate its decision, another complaint was filed before the Office of the Ombudsman for administrative liability as well as criminal liability for unexplained wealth. Now, we all know that the Office of the Ombudsman under RA 6770 has two primary functions with respect to malfeasance, misfeasance, nonfeasance or other feasances like other public officers and employees and administratively, they can hear, try, and impose administrative liabilities and penalties but with respect to criminal liability, they can only conduct preliminary investigation. They could not impose any penalties. Side story about a lawyer applying with the Office of the Ombudsman and he was asked to decide a criminal case. He decided guilty. Lesson: The Office of the Ombudsman is not empowered to find public officers guilty. Atty. Montemayor raised basically that question of whether or not the investigation subjecting him to another investigation with the Office of the Ombudsman violates his right or privilege against or his protection against double jeopardy. The SC said no because the elements of double jeopardy are not present. When he was charged, found liable in the Office of the President, that was for an administrative liability. Even if he were to be charged again in the Office of the Ombudsman administratively, double jeopardy will not apply because double jeopardy protection is only applicable in criminal prosecutions. With respect to the criminal charge in the Office of the Ombudsman where he was made to
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
undergo or his case was processed under the power of the Ombudsman to conduct criminal investigation, the SC said still double jeopardy does not apply because preliminary investigation is not part of trial. Jeopardy attaches when there is a valid complaint or information in a court of competent jurisdiction sufficient in form and substance in the information and the accused has pleaded guilty and the case has been dismissed, accused has been acquitted or convicted. When the case is subjected or processed to PI in any investigating body, if the investigator says there is no case, there is no prima facie case and therefore the case is dismissed, question: can it be filed again? Will double jeopardy apply? On the first question: can it be filed again? It depends. If there are new evidence probably it can be re-filed but if the argument is that it cannot be filed because there is violation of double jeopardy, that should not apply because PI, the results of the PI is of the same result as the accused has been acquitted or convicted or the case is dismissed against him after an information which is sufficient in form and substance has been filed in the court of competent jurisdiction. PI is never part of trial. Perhaps if your normal argument with respect to the fact that it could not be re-filed, is that it is now as to the parties the law between them. If you have like did not file for a motion for a motion for reconsideration, did not seek further review on appeal, then it becomes final. The dismissal becomes final and it may be constitutive of res adjudicata between the parties, you can argue on that line. But definitely you cannot argue that to re-file it would violate your privilege or protection against double jeopardy. Double jeopardy; elements. Double jeopardy attaches only (1) upon a valid indictment, (2) before a competent court, (3) after arraignment, (4) when a valid plea has been entered, and (5) when the defendant was convicted or acquitted, or the case was dismissed or otherwise terminated without the express consent of the accused. None of these requisites applies where the Ombudsman only conducted a preliminary investigation of the same criminal offense against the respondent public officer. The dismissal of a case during preliminary investigation does not constitute double jeopardy, preliminary investigation not being part of the trial. Hon. Waldo Q. Flores, et al v. Atty. Antonio F. Montemayor, G.R. No. 170146, June 8, 2011. WRIT OF HABEAS CORPUS
discussed under Section 18 of Article 7 is the appropriate remedy to inquire into all matter of involuntary restraint and to leave such person therefrom. It is sometimes used as the most efficient and effective way and expeditious way to leave a person from any form of involuntary or unlawful restraint. The principle purpose here is to set the individual to liberty. Some would ask why not file a petition for writ? The problem is in bail petitions, it is usually applicable only when the person is based under custody by reason of a criminal violation. There are instances where a person is detained and there is no criminal charge and the most effective way to go(?) there is to file a petition for a writ of habeas corpus. This is also used as a post-conviction remedy where the incarceration or continued incarceration of the petitioner is supposed to be without any legal basis either because the accused has already served his full sentence or that the accused should benefit from any reduction of period of incarceration by reason of a law which is beneficial to him or the decision of the SC on the same term of imprisonment which is beneficial to him. As to the excess, there is no more legal justification for the continued incarceration of the accused. The accused cannot go to court, go back to that court which has convicted him because once the accused starts to serve sentence, everything is finished, the court is ousted of jurisdiction. The court cannot entertain anymore anything because that accused has already started serving sentence, the proceedings is considered to have become final already. So if he wishes to be relieved from further incarceration because of the beneficial law or decision of the SC he must have to file a petition for habeas corpus as a postconviction remedy. This does not however… there’s this case here of Fletcher vs. Director of Bureau, the petitioner here contends that he should be released from detention because he has already served the minimum of the indeterminate sentence imposed by law. He said that his continued incarceration has no legal basis already. Remember that under the Indeterminate Sentence Law, while an accused can be released as a parolee, released on parole, there is yet to be a determination to be made whether indeed you are eligible for parole. It is not automatic. So that one cannot file a petition for habeas corpus simply because he has supposedly serve the minimum sentence under the ISL. There must have to be a determination by the Parole Board whether that person is eligible or not eligible for parole.
Then the final items here in your outline would be the privilege of the writ of habeas corpus. The writ of habeas corpus as we have
112
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
Fletcher vs. Director of Bureau (2009) F: Petitioner Martin Gibbs Fletcher seeks his release from prison in this petition for the issuance of the writ of habeas corpus. He claims that his prison sentence of 12 to 17 years was commuted by then President Fidel V. Ramos to nine to 12 years. Since he had already served 14 years, three months and 12 days, including his good conduct allowance, his continued imprisonment is illegal.
tempts and lures us, it is the desire to fall, against which, terrified, we defend ourselves.” ~Milan Kundera, The Unbearable Lightness of Being
H: Petitioner is not entitled to the issuance of the writ. The writ of habeas corpus extends to all cases of illegal confinement or detention by which any person is deprived of his liberty. However, Section 4, Rule 102 of the Rules of Court provides: Sec. 4. When writ not allowed or discharge authorized. – If it appears that the person to be restrained of his liberty is in the custody of an officer under process issued by a court or judge; or by virtue of a judgment or order of a court of record, and that court or judge had jurisdiction to issue the process, render the judgment, or make the order, the writ shall not be allowed; or if the jurisdiction appears after the writ is allowed, the person shall not be discharged by reason of any informality or defect in the process, judgment, or order. Nor shall anything in this rule be held to authorize the discharge of a person charged with or convicted of an offense in the Philippines, or of a person suffering imprisonment under lawful judgment. (emphasis supplied) Plainly stated, the writ obtains immediate relief for those who have been illegally confined or imprisoned without sufficient cause. The writ, however, should not be issued when the custody over the person is by virtue of a judicial process or a valid judgment.
Right to bail is not impaired, even the writ is suspended and under that constitutional suspension of the privilege under Article 7, section 18, simply extends period of detention without charge but does not actually allow continued detention without any formal information charged. So the 12, 18 and 36 hours are just extended to 72 hours because under Art. 7, Sec. 18, the person arrested must have to be charged in court within 72 hours.
CAÑETE, CHAM GO, FAITH
“All our dreams can come true – if we have the courage to pursue them.” - Walt Disney “Anyone whose goal is 'something higher' must expect someday to suffer vertigo. What is vertigo? Fear of falling? No, Vertigo is something other than fear of falling. It is the voice of the emptiness below us which
113
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
This case of Manila Electric Company somehow made the comparison that both these Writ of Amparo and Habeas Data are anchored on those basic or two situations contemplated: extralegal killing and enforced disappearances or threats of them being committed.
August 31, 2012
Writ of Amparo and Writ of Habeas Data as distinguished from Writ of Habeas Corpus
MANILA ELECTRIC COMPANY, ALEXANDER S. DEYTO and RUBEN A. SAPITULA vs. ROSARIO GOPEZ LIM G.R. No. 184769. October 5, 2010
IMPORTANT DISTINCTIONS In Habeas Corpus, the subject of this petition is any form of involuntary restraint or detention. In Writ of Amparo, it involves a violation, or a threatened violation of the right to life, liberty or security. In Habeas Data, it is a violation, or a threatened violation of the right to privacy, life, liberty or security by those engaged in gathering and collecting, or storing data or information. The respondent in Habeas Corpus would be any private or public person, same with Amparo.
By respondent’s allegation, petitioners’ unlawful act and omission consisting of their continued failure and refusal to provide her with details or information about the alleged report which MERALCO purportedly received concerning threats to her safety and security amount to a violation of her right to privacy in life, liberty and security, correctible by habeas data. Respondent thus prayed for the issuance of a writ commanding petitioners to file a written return x x x SC: Respondent’s plea that she be spared from complying with MERALCO’s Memorandum directing her reassignment to the Alabang Sector, under the guise of a quest for information or data allegedly in possession of petitioners, does not fall within the province of a writ of habeas data. Section 1 of the Rule on the Writ of Habeas Data provides:
In Habeas Data, private or public person but he must have to be tasked with gathering, collecting, or storing data or information. In Habeas Corpus, the respondent must show cause to the court why the person detained must not be released. There must have to be a legal justification for the continued detention. The respondent must show to the court the victim designated in the writ. With respect to the writ of Amparo, the respondent/respondents must show what actions or steps were taken to determine the name or whereabouts of the aggrieved party, the identity of persons responsible.
114
Section 1. Habeas Data. – The writ of habeas data is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party. The habeas data rule, in general, is designed to protect by means of judicial complaint the image, privacy, honor, information, and freedom of information of an individual. It is meant to provide a forum to enforce one’s right to the truth and to informational privacy, thus safeguarding the constitutional guarantees of a person’s right to life, liberty and security against abuse in this age of information technology.
While in Habeas Data, the respondents must show what data or information has been gathered or protected by this court, and what steps or action were taken to ensure the security or confidentiality of the data or information.
It bears reiteration that like the writ of amparo, habeas data was conceived as a response, given the lack of effective and available remedies, to address the extraordinary rise in the number of killings and enforced disappearances. Its intent is to address violations of or threats to the rights to life, liberty or security as a remedy independently from those provided under prevailing Rules.
Now, both the Writ of Amparo and the Writ of Habeas Data, as discussed in this case of Manila Electric Company versus Rosario Gopez Lim, 632 SCRA 195 (2010), are both based on a reaction of the court to so-called extra-legal killing and enforced disappearances or threats thereof.
Manila Electric Company case does not actually say what are the matters actually covered, like the Writ of Habeas Data, unlike in the case of Tapuz vs. del Rosario and this case of Secretary vs. Manalo (568 SCRA 1), the Supreme Court was able to explain what the so-called Writ of Amparo should or would lie on.
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
And by reason of this lack of decision, that lack of discussion as to what Writ of Habeas Data is, we are left with the definitions as provided for in Section 1 of the Supreme Court Circular (A.M. No. 08-1-16-SC) on what this would actually cover. DANIEL MASANGKAY TAPUZ et al. VS. HONORABLE JUDGE ELMO DEL ROSARIO, et al. G.R. No. 182484. June 17, 2008 SC: The petition for the issuance of the writ of amparo, on the other hand, is fatally defective with respect to content and substance. The writ of amparo was originally conceived as a response to the extraordinary rise in the number of killings and enforced disappearances, and to the perceived lack of available and effective remedies to address these extraordinary concerns. It is intended to address violations of or threats to the rights to life, liberty or security, as an extraordinary and independent remedy beyond those available under the prevailing Rules, or as a remedy supplemental to these Rules. What it is not, is a writ to protect concerns that are purely property or commercial. Neither is it a writ that we shall issue on amorphous and uncertain grounds. Consequently, the Rule on the Writ of Amparo - in line with the extraordinary character of the writ and the reasonable certainty that its issuance demands - requires that every petition for the issuance of the Writ must be supported by justifying allegations of fact, x x x Petitioners' present recourse via the remedy of the writ of amparo is a mere subterfuge to negate the assailed orders that the petitioners sought and failed to nullify before the appellate court because of the use of an improper remedial measure. We discern this from the petitioners' misrepresentations pointed out above; from their obvious act of forum shopping; and from the recourse itself to the extraordinary remedies of the writs of certiorari and amparo based on grounds that are far from forthright and sufficiently compelling. To be sure, when recourses in the ordinary course of law fail because of deficient legal representation or the use of improper remedial measures, neither the writ of certiorari nor that of amparo - extraordinary though they may be - will suffice to serve as a curative substitute. The writ of amparo, particularly, should not issue when applied for as a substitute for the appeal or certiorari process, or when it will inordinately interfere with these processes - the situation obtaining in the present case.
THE SECRETARY OF NATIONAL DEFENSE, THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES vs. RAYMOND MANALO and REYNALDO MANALO G.R. No. 180906. October 07, 2008 (First petition for a writ of amparo filed before Supreme Court. Writ of Amparo took effect on October 24, 2007.) Brothers Raymond and Reynaldo Manalo were abducted by
115
several armed soldiers wearing white shirts, fatigue pants and army boots. They were detained and tortured for 18 months, thereafter they escaped. SC: We now come to the right of the respondents to the privilege of the writ of amparo. There is no quarrel that the enforced disappearance of both respondents Raymond and Reynaldo Manalo has now passed as they have escaped from captivity and surfaced. But while respondents admit that they are no longer in detention and are physically free, they assert that they are not "free in every sense of the word” as their "movements continue to be restricted for fear that people they have named in their Judicial Affidavits and testified against (in the case of Raymond) are still at large and have not been held accountable in any way. These people are directly connected to the Armed Forces of the Philippines and are, thus, in a position to threaten respondents' rights to life, liberty and security.” Respondents claim that they are under threat of being once again abducted, kept captive or even killed, which constitute a direct violation of their right to security of person. In sum, respondents assert that their cause of action consists in the threat to their right to life and liberty, and a violation of their right to security. Let us put this right to security under the lens to determine if it has indeed been violated as respondents assert. The right to security or the right to security of person finds a textual hook in Article III, Section 2 of the 1987 Constitution which provides, viz: Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge... At the core of this guarantee is the immunity of one's person, including the extensions of his/her person - houses, papers, and effects - against government intrusion. Section 2 not only limits the state's power over a person's home and possessions, but more importantly, protects the privacy and sanctity of the person himself. In addition, it was likewise ruled that a petition for a writ of amparo is confined to instances of extralegal killings and enforced disappearances or to threats thereof.
In the case of Manalo, the Supreme Court mentioned that the rights which fall within the protected mantle of the Writ of Amparo are: 1. right to life; 2. right to liberty; 3. right to security. Right to Life. What is included in the right to life? It is mentioned, essentially the right to be alive and the security of,
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
and a secure quality of life, live not in fear that this person may be unreasonably violated by a powerful ruler, but a life lived with the assurance that the Government he established and consented to will protect the security of this person. And it goes to tell that it includes therefore the right to be protected or secure in your whole person and in your limbs and in your parts of your body there will be nothing that should harm, much more that will cause your death, because again it is a reaction against extra-legal killings. Right to liberty. According to the Supreme Court, citing the case of City of Manila vs. Honorable Judge Laguio, includes the right to live and the right to be free from arbitrary restraint or servitude, not limited to freedom from physical restraint of a person or citizen, but is deemed to embrace the right to command and the right to enjoy the liberties in which he has been endowed by his creator, subject only to such restraint as may be necessary for common welfare.
Right to security. It includes guarantee of bodily and psychological integrity, freedom from fear, freedom from threat and the guarantee of protection of one’s rights by the government. For which reason, the basic distinction between Writ of Habeas Corpus and the Writ of Amparo is that, while in the Writ of Habeas Corpus, the respondents who are supposed to have taken into custody a person can, has detained that person (sic ).
Again, in reaction to supposed forced extra-legal disappearances so one, the Writ of Amparo covers that right to liberty.
For him to defeat the Writ of Habeas Corpus, they can simply reason with the court that the person supposedly detained is not detained by them.
CITY OF MANILA, HON. ALFREDO S. LIM as the Mayor of the City of Manila, HON. JOSELITO L. ATIENZA, in h is capacity as Vice-Mayor of the City of Manila and Presiding Officer of the City Council, et al. vs. HON. PERFECTO A.S. LAGUIO, JR., as Presiding Judge, RTC, Manila and M ALATE TOURIST DEVELOPMENT CORPORATION G.R. No. 118127. April 12, 2005
It has happened a lot, in a lot of circumstances, that when, say, for example, PNP personnel or the Armed Forces are made respondents for a petition for a Writ of Habeas Corpus for an annullable warrantless arrest, the subsequent detention or charge, they can easily the defeat the Writ of Habeas Corpus by reasoning out with the court that “they are not in our custody.”
The issue in this Petition under Rule 45 seeking the reversal of the Decision of the RTC of Manila is the validity of Ordinance No. 7783 of the City of Manila. The Ordinance disallows the operation of sauna parlors, massage parlors, karaoke bars, beerhouses, night clubs, day clubs, super clubs, discotheques, cabarets, dance halls, motels and inns in the Ermita-Malate area. In Section 3 thereof, owners and/or operators of the enumerated establishments are given three (3) months from the date of approval of the Ordinance within which “to wind up business operations or to transfer to any place outside the ErmitaMalate area or convert said businesses to other kinds of business allowable within the area.” Further, it states in Section 4 that in cases of subsequent violations of the provisions of the Ordinance, the “premises of the erring establishment shall be closed and padlocked permanently.” It is readily apparent that the means employed by the Ordinance for the achievement of its purposes, the governmental interference itself, infringes on the constitutional guarantees of a person’s fundamental right to liberty and property.
116
Liberty as guaranteed by the Constitution was defined by Justice Malcolm to include “the right to exist and the right to be free from arbitrary restraint or servitude. The term cannot be dwarfed into mere freedom from physical restraint of the person of the citizen, but is deemed to embrace the right of man to enjoy the facilities with which he has been endowed by his Creator, subject only to such restraint as are necessary for the common welfare.” In accordance with this case, the rights of the c itizen to be free to use his faculties in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; and to pursue any avocation are all deemed embraced in the concept of liberty.
In the Writ of Amparo, it goes right beyond that because the right of security includes a guarantee that the State will protect you. The Writ of Amparo requires the respondent not simply to show reason why the writ is defeated or it to be dismissed, but to show to the courts what steps or actions were taken by the, to ascertain what happened to this person, what is the fate of this person supposedly subject of the Writ of Amparo. It is not enough for them to just to state that these persons are not in their custody, or they were not responsible for their arrest but there must have been steps taken by them once the report or demand be made by those who filed the petition for the persons who disappeared to show to the court what actions or steps were taken by them to ascertain the whereabouts and fate. It goes beyond the usual coverage or command or directive of Habeas Corpus.
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
Now, if you relate this to Writ of Habeas Data based on the Manila Electric Company case, it seems that those are based on so-called extra-legal killings and enforced disappearances. But with respect to Habeas Data, it is quite clear that it refers to the right of privacy over one’s right to life, liberty, or security, that the data stored or data gathered, collected and stored would somehow affect the right of a person’s privacy with respect to his right of liberty or security. Now what exactly is that? In real terms or common experience, the enforced disappearances or extra-legal killings has somehow been the result of actions of State agents by or over those persons who are supposedly believed to be enemies of the State. And the reason why these persons are considered enemies of the State, so to speak, is because the Government has collected information or data against them through prolonged surveillance. And normally this will result into the, what is commonly known as dossier, where there is a recording of data or information of this particular person that this person is considered “the enemy of the State” and thereafter, that person could disappear and eventually some would turn up dead and some would turn up, would turn out not to be found at all. Now if you relate this to the Writ of Habeas Data based on the Manila Electric Company case, it seems that both are based on the so called “extra-legal killings and enforced disappearances”. But with respect to Habeas Data, it is quite clear that it refers to the right of privacy over ones right to life, liberty or security. That the data gathered, collected and stored would somehow affect the right of a person’s privacy with respect to his right to liberty and security. Now what exactly is that? In real terms or common experience, the enforced disappearances and extra-legal killings, have somehow been the result of actions of state agents over those persons who are supposed to be or believed as enemies of the state. And the reason why these persons are considered as enemies of the state, so to speak, is because the government has collected information or data against them through prolonged surveillance. And normally this would result into what is commonly known as dossier where there is a recording of data or information on this particular person that this person is considered “an enemy of the state” and thereafter that person would disappear and eventually,
117
some would turn up dead, some would turn up, well not to be found at all. Just like yesterday, there was this supposed suspect in the killing of that gym instructor. And supposedly that suspect fought it out with the police, that is why he died. Common sense would dictate that that is not easily acceptable, if you only knew where that killing happened. It was in that Panganiban St. if you’re familiar with that. It’s that small alley, it’s a road actually, perpendicular to both Torres and Mapa, where only one vehicle can pass at a time or if two, they must have to be very careful so that their sidemirrors would not hit each other. And with the number of polices officers which supposedly had to shoot down, it’s a house or a shanty actually, would you expect that the suspect would fight it out with the police officers? So this is part of, perhaps, with by reason of the practices of these state agents and where information is gathered, stored and collected and thereafter stored on some individuals which will meet the definition of the state, that you have a right, this is the ruling in the case of Manila Electric Company, the Supreme Court said this is the sign to protect by means of judicial complaint, the image, privacy, honor, information and freedom of information of an individual. It is meant to provide a forum to enforce one’s right to the truth and to informational privacy. Thus safeguarding the constitutional guarantee of a person’s right to life, regarding liberty and security against abuse in this age of information or technology. In the Writ of Habeas Data Rule, if a complaint is filed, and the court finds the petition to be sufficient and duly proven in the course of time, the court can direct these persons who are responsible for collecting, storing and gathering and storing these data to: 1. 2.
Erase the data if it is not correct, or to Correct it if it is not accurate.
The court can do that. But who are the persons tasked with gathering, collecting or storing data? Nobody would admit that. We have filed a case here, involving some lawyers who were supposed to have been in the list of, in the order of battle(?) of the military. The problem is nobody would admit that there is such a order of battle.The military officers simply argued before the court, “No we don’t have any recording” . Do you store or gather data, “No we don’t” . So what is there to erase or what is there to correct? So that petition was dismissed. We filed a
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•
CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
review by certiorari to the Supreme Court. It still has to be acted on. The practice may be known but the practice is not part of the standard operating procedure. This is like your spy; no one would actually admit they have done it. I don’t know if you are familiar with Republic Act 9595 the Antiphoto and Voyeurism Act of 2009. This republic act penalizes the act of taking a photograph or video recording of , well the law says, naked body, female breasts, private parts, private area, (Sir M: “I don’t know what that is” .) and the violation of ones right to privacy or expectation, reasonable expectation to privacy. So that probably means that if you were in a room and you were doing a private act, whatever that private act is, and you take the photograph or a video of your partner without his or her consent, that would be punishable under this law. And the subsequent copying and distribution of these would also be punishable. Now I raise the matter because, if you were the object of that sex photograph or “sex video scandal” can you file a petition to the court for a Writ of Habeas Data? That your partner, a private person, has collected gathered and stored information against you which would violate your right to privacy of life, because your limbs were shown, or perhaps of security. Can you do that? This Manila Electric Company case involves an employee who has supposed to have been subject of a transfer order because of a complaint. He filed a petition for a Writ of Habeas Data, wanting to get a copy of that complaint. The Manila Electric Company refused him. And so this case reached the court because the court granted it. The Supreme Court said that just like the Writ of Amparo, this covers what is supposed to be within the ambit of right to life, right to liberty and right to security. It does not include purely, or those which involve property rights or those filed for commercial, amorphous or uncertain grounds. Since employment is a property right, the Wirt of Habeas Data is not applicable when it pertains to the employee. The data collected, gathered and stored must have to be in relation to your right to privacy in life, liberty and security.
HELD: No. Respondent’s plea that she be spared from complying with MERALCO’s Memorandum directing her reassignment to the Alabang Sector, under the guise of a quest for information or data allegedly in possession of petitioners, does not fall within the province of a writ of habeas data. Section 1 of the Rule on the Writ of Habeas Data provides: Section 1. Habeas Data. – The writ of habeas data is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party. The habeas data rule, in general, is designed to protect by means of judicial complaint the image, privacy, honor, information, and freedom of information of an individual. It is meant to provide a forum to enforce one’s right to the truth and to informational privacy, thus safeguarding the constitutional guarantees of a person’s right to life, liberty and security against abuse in this age of information technology. It bears reiteration that like the writ of amparo, habeas data was conceived as a response, given the lack of effective and available remedies, to address the extraordinary rise in the number of killings and enforced disappearances. Its intent is to address violations of or threats to the rights to life, liberty or security as a remedy independently from those provided under prevailing Rules. Castillo v. Cruzunderscores the emphasis laid down in Tapuz v. del Rosario that the writs of amparo and habeas data will NOT issue to protect purely property or commercial concerns nor when the grounds invoked in support of the petitions therefor are vague or doubtful.[16] Employment constitutes a property right under the context of the due process clause of the Constitution.
That should end our discussion. ☺
CALIZO, RUBY LINOG, HANNAH
MANILA ELECTRIC COMPANY, ALEXANDER S. DEYTO and RUBEN A. SAPITULA vs. ROSARIO GOPEZ LIM , (G.R. No. 184769, October 5, 2010) ISSUE: May an employee invoke the remedies available under such writ where an employer decides to transfer her workplace on the basis of copies of an anonymous letter posted therein ─ imputing to her disloyalty to the company and calling for her to leave, which imputation it investigated but fails to inform her of the details thereof?
118
Transcribed by: IV-MANRESA, 2012-2013 © Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman• •Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza •Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
•