Bill of Rights

Question 1

BILL OF RIGHTS

Answer 1

The set of prescriptions setting forth the fundamental civil and political rights of the individual, and imposing limitations on the powers of government as a means of securing the enjoyment of those rights. Generally, any governmental action in violation of the Bill of Rights is void. These provisions are also generally self-executing.

Question 2

Can a person invoke the Bill of Rights during interregnum?

Answer 2

In Republic v. Sandiganbayan, G.R. No. 104768, July 21, 2003, the Supreme Court held that the Bill of Rights under the 1973 Constitution was not operative from the actual and effective take-over of power by the revolutionary government following the EDSA revolution until the adoption, on March 24, 1986, of the Provisional (Freedom) Constitution. During this period, the directives and orders of the revolutionary government were the supreme law, because no constitution limited the extent and scope of such directives and orders. Thus, during the interregnum, a person could not invoke any exclusionary right under the Bill of Rights, because there was neither a constitution nor a Bill of Rights at the time. However, the protection accorded to individuals under the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights remained in effect during the interregnum.

Question 3

Due Process of Law

Answer 3

fSec. 1. Art. Ill: “No person shall be deprived of life, liberty or property without due process of law x xx “.] “A law which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial” [Darmouth College v. Woodward, 4 Wheaton 518],

Question 4

Meaning of life, liberty and property

Answer 4

a) Life includes the right of an individual to his body in its completeness, free from dismemberment, and extends to the use of God-given faculties which make life enjoyable [Justice Malcolm, Philippine Constitutional Law, pp. 320321]. See: Buck v. Bell, 274 U.S. 200. b) Liberty includes “the right to exist and the right to be free from arbitrary personal restraint or servitude, x x x (It) includes the right of the citizen to be free to use his faculties in all lawful ways x x x” [Rubi v. Provincial Board of Mindoro, 39 Phil 660], c) Property is anything that can come under the right of ownership and be the subject of contract. It represents more than the things a person owns; it includes the right to secure, use and dispose of them [Torraco v. Thompson, 263 U.S. 197]. i)

Question 5

Can a person recover public office invoking the right to property?

Answer 5

Public office is not property; but one unlawfully ousted from it may institute an action to recover the same, flowing from the de jure officer’s right to office [Nunez v. Averia, 57 SCRA 726], Indeed, the Court while public office is not property to which one may acquire a vested right, it is nevertheless a protected right [Bince v. Commission on Electiions

Question 6

Are licenses considered a property right?

Answer 6

Mere privileges, such as the license to operate a cockpit, are not property rights and are revocable at will [Pedro v. Provincial Board of Rizal, 53 Phil 123].

Question 7

Suspension from office amounts to deprivation of property without due process of law. is the contention valid?

Answer 7

The mandatory suspension from office of a public official pending criminal prosecution for violation of RA 3019 cannot amount to deprivation of property without due process of law

Question 8

Requisites of Substantive due process

Answer 8

i) The interests of the public, in general, as distinguished from those of a particular class, require the intervention of the State. [See discussion on Police Power, Chapter IV.] ii) The means employed are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive on individuals.

Question 9

a law prohibiting traders from keeping their books of accounts in a language other than English, Spanish or any local dialect. Is substantive due process violated?

Answer 9

In Yu Eng Cong v. Trinidad, 271 U.S. 500, the Court declared as unconstitutional a law prohibiting traders from keeping their books of accounts in a language other than English, Spanish or any local dialect. Act No. 2972 deprives the Chinese merchants of something indispensable to the carrying on of their business, and is obviously intended to affect them (as distinguished from the rest of the community).

Question 10

Sec. 18, PD 1146, which provides that the surviving spouse has no right to survivorship pension benefits if the surviving spouse contracted marriage with the pensioner within three years before the pensioner qualified for the pension benefit. Is substantive due process violated?

Answer 10

In GS/S v.Montesclaros, 434 SCRA41, the Supreme Court declared as invalid Sec. 18, PD 1146, which provides that the surviving spouse has no right to survivorship pension benefits if the surviving spouse contracted marriage with the pensioner within three years before the pensioner qualified for the pension benefit. In a pension plan where employee participation is mandatory, employees have vested rights in the pension. Thus, where the employee retires and meets the eligibility requirements, he acquires a vested right to benefits protected by the due process clause. Sec. 18, PD 1146 is seriously oppressive in outrightly denying the claim of a dependent spouse for survivorship pension benefits if the dependent spouse contracted marriage within the three-year prohibited period.

Question 11

Requisites of Procedural Due Process

Answer 11

i) An impartial court or tribunal clothed with judicial power to hear and determine the matter before it. ii) Jurisdiction must be lawfully acquired over the person of the defendant and over the property which is the subject matter of the proceeding. ill) The defendant must be given an opportunity to be heard. iv) Judgment must be rendered upon lawful hearing

Question 12

Commissioner Opinion, who was formerly a law partner of respondent Pacificador, became a judge in case involving Pacifador What requisite of Procedural due process was violated?

Answer 12

An impartial court or tribunal clothed with judicial power to hear and determine the matter before it.

Question 13

the transcript of stenographic notes showed that the trial court intensively questioned the witnesses (approximately 43% of the questions asked of prosecution witnesses and the accused were propounded by the judge), Is there a violation of the 1st requisite of procedural due process?

Answer 13

Supreme Court held that the questioning was necessary. Judges have as much interest as counsel in the orderly and expeditious presentation of evidence, and have the duty to ask questions that would elicit the facts on the issues involved, clarify ambiguous remarks by witnesses, and address the points overlooked by counsel. the Supreme Court said that questions which merely clear up dubious points and elicit relevant evidence are within the prerogative of the judge to ask.

Question 14

A judge calls a witness a liar. Is there a violation of the 1st requisite of procedural due process?

Answer 14

In People v. Larranaga, 421 SCRA 530, theSupreme Court said that the test is whether the intervention of the judge tends to prevent the proper presentation of the case or the ascertainment of the truth in the matter where he interposes his questions or comments. When the judge remarked that the testimonies of two witnesses were incredible, that another witness was totally confused and appeared to be mentally imbalanced, and that two witnesses were liars, his comments were just honest observations intended to warn the witnesses to be candid to the court. He merely wanted to ascertain the veracity of their contradictory statements.

Question 15

petitioners’ contention that they were denied due process ostensibly because the Civil Service Commission acted as investigator, complainant, prosecutor and judge. Is there a violation of the 1st requisite of procedural due process?

Answer 15

In Cruz v. Civil Service Commission, G.R. No. 144464, November 22, 2001, the Court rejected petitioners’ contention that they were denied due process ostensibly because the Civil Service Commission acted as investigator, complainant, prosecutor and judge. The CSC is mandated to hear and decide administrative cases instituted by it or instituted before it directly or on appeal.

Question 16

the petitioner attributed partiality to Ombudsman Desierto for having participated in the reinvestigation of the instant case despite hishaving earlier participated in the initial preliminary investigation of the same when he was Special Prosecutor Is there a violation of the 1st requisite of procedural due process?

Answer 16

In Tejano v. Ombudsman, The Supreme Court agreed with the petitioner, saying that it is a steadfast rule that the officer who reviews a case on appeal should not be the same person whose decision is under review.

Question 17

Instances where a judge is disqualified from ruling a case. Is there an exception?

Answer 17

Rule 137, Rules of Court, No judge or judicial officer shall sit in any case in which he, or his wife or child, is pecuniarily interested as heir, legatee, creditor or otherwise, or in which he is related to either party within the sixth degree of consanguinity or affinity, or to counsel within the fourth degree, or in which he has been executor, administrator, guardian, trustee or counsel, or in which he has been presided in any inferior court when his ruling or decision is the subject of review, without the written CONSENT of all parties in interest, SIGNED by them and entered upon the record. A judge may, in the exercise of his sound discretion, disqualify himself from sitting in a case, for just or valid reasons other than those mentioned above.

Question 18

Will a court acquire jurisdiction over the defendant when he submits an answer to a complaint?

Answer 18

While jurisdiction over the person of the defendant can be acquired by the service of summons, it can also be acquired by voluntary appearance before the court, which includes submission of pleadings in compliance with the order of the court or tribunal./De los Santos v. NLRC

Question 19

the notice to petitioner to report back to work within five days otherwise he would be dropped from the rolls, was sent to petitioner’s Quezon City address when even if the office knew where petitioner was temporarily residing in San Jose, California Is there a violation of the 3rd requisite of procedural due process?

Answer 19

there was deemed a denial of due process where the notice to petitioner to report back to work within five days otherwise he would be dropped from the rolls, was sent to petitioner’s Quezon City address when the office knew where petitioner was temporarily residing in San Jose, California.

Question 20

Can person be immediately convicted under BP 22 by issuing a check payment which is refused by the drawee bank for insufficiency of funds?

Answer 20

Knowledge of insufficiency of funds with the bank is presumed from the act of making, drawing, and issuing a check payment which is refused by the drawee bank for insufficiency of funds when presented within 90 days from the date of issue. But this presumption does not hold when the maker or drawer pays or makes arrangements for the payment of the check within 5 banking days after receiving notice that such check had been dishonoured. Thus, it is essential for the maker or the drawer to be notified of the dishonor of the check, so that he can pay the value thereof, or make arrangements for its payment within the period prescribed by law. Absent such notice of dishonor, the maker or the drawer cannot be convicted of violating B.P. 22, as there would be a violation of procedural due process [Caras v. Court of Appeals,

Question 21

a case is decided on the basis only of position papers submitted by the parties Is there a violation of procedural due process?

Answer 21

Not all cases require a trial-type hearing. Due process in labor cases before a Labor Arbiter is satisfied when the parties are given the opportunity to submit their position papers to which they are supposed to attach all the supporting documents or documentary evidence that would support their respective claims [Mariveles Shipyard v. Court of Appeals

Question 22

Section 64 (i) of the Revised Administrative Code which empowered the Governor-General to authorize arrest of person who violated the conditions of their parol without the opportunity to be heard is violative of due process. Is the contention valid?

Answer 22

in Torres v. Gonzales, 152 SCRA 272,the Supreme Court said that Sec. 64 of the Revised Administrative Code is not repugnant to the due process clause, and the accused is not constitutionally entitled to another judicial determination of whether he breached the condition of his pardon. The grant of pardon and the determination of the terms and conditions of a conditional pardon are purely executive acts which are not subject to judicial scrutiny. There is no violation of due process Because due process is not always judicial process, and the convict had already been accorded judicial due process in his trial.

Question 23

Does an extraditee have the right to notice of the pending case against him?

Answer 23

In Government of the United States of America v. Judge Puruganan.. Prior to the issuance of the warrant, the judge must not inform or notify the potential extraditee of the pendency of the petition, lest the latter be given the opportunity to escape and frustrate the proceedings.

Question 24

Does an extraditee have the right to bail?

Answer 24

In Mejoff v. Director of Prisons, this Court, in granting bail to a prospective deportee, held that under the Constitution, the principles set forth in the Universal Declaration of Human Rights are part of the law of the land. If bail can be granted in deportation cases, considering that the Universal Declaration of Human Rights applies to deportation cases, there is no reason why it cannot be invoked in extradition cases. The potential extraditee must prove by “clear and convincing evidence” that he is not a flight risk and will abide with all the orders and processes of the extradition court for entitlement to bail.

Question 25

Is the right to examine witnesses indispensable?

Answer 25

The right of a party to cross-examine the witness against him in a civil case is an indispensable part of due process [Ortigas v. Lufthansa, 64 SCRA 610], But in administrative proceedings, technical rules of procedure and evidence are not strictly applied. Since nothing on record shows that petitioner asked for cross-examination, he cannot argue that he has been deprived of due process merely because no cross-examination took place

Question 26

The respondent filed a motion for reconsideration because he was not given opportunity to be heard. Is there a violation of procedural due process?

Answer 26

The filing of a motion for reconsideration cures the defect of absence of a hearing [Chua v. Court of Appeals The essence of due process in administrative proceedings is an opportunity to explain one’s side

Question 27

The dismissal of the case due to previous counsel negligence and failure to file the answer deprived the petitioner the opportunity to be heard. Is the contention valid?

Answer 27

In Villaruel v. Fernando, G.R. No. 136726, September 24, 2003, it was held that there was no denial of due process where the appellate court dismissed petitioner’s appeal for failure of the Office of the Solicitor General to file the required memorandum. As a rule, the negligence of counsel binds the client. Moreover, petitioner in this case is not entirely blameless for the dismissal of his appeal. After the OSG’s failure to file the answer to the petition for mandamus and damages, and to have the order declaring the petitioner in default lifted, petitioner should have already replaced the OSG with another lawyer.

Question 28

Give instances in which notice and hearing may be dispensed with without violating due process

Answer 28

Among these are the cancellation of the passport of a person sought for the commission of a crime [Suntay v. People, 101 Phil 833], the preventive suspension of a civil servant facing administrative charges [Co v. Barbers, 290 SCRA 717], the distraint of property for tax delinquency; the padlocking of restaurants found unsanitary or of theaters showing obscene movies, and the abatement of nuisances per se. And in Equitable Banking Corporation v. Calderon, G.R. No. 156168. December 14, 2004, the Supreme Court ruled that no malice or bad faith attended the Bank’s dishonor of Calderon’s credit card, inasmuch as the dishonor was justified under its Credit Card Agreement which provided that the the cardholder agreed not to exceed his approved credit limit, otherwise the card privilege would be automatically suspended without notice to the cardholder.

Question 29

What is the defense of a person not impleaded in the complaint but is ordered to return the property upon which title is already transferred to him?

Answer 29

A person who is not impleaded in a complaint cannot be bound by the decision rendered therein, for no man shall be affected by a proceeding in which he is a stranger In this case, the respondent is adversely affected by such judgment, as he was the subsequent purchaser of the subject property, and title was already transferred to him. It will be the height of inequity to allow respondent’s title to be nullified without the respondent being given the opportunity to present any evidence in support of his ostensible ownership of the property. It is tantamount to a violation of the constitutional guarantee that no person shall be deprived of property without due process of law

Question 30

Right of Hearing in the Constitution

Answer 30

Sec. 14, Art. VIII, which provides that no decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based.

Question 31

Rules on Preliminary Investigation

Answer 31

It is now provided in Sec. 1, Rule 112, Rules on Criminal Procedure, that a preliminary investigation is required to be conducted before the filing of a complaint or information for an offense where the penalty prescribed by law is at least 4 years, 2 months and 1 day, without regard to the fine. However, when a person is lawfully arrested without a warrant involving an offense which requires a preliminary investigation, the complaint or information may be filed by a prosecutor without need of such investigation provided an inquest has been conducted in accordance with existing rules. In the absence or unavailability of an inquest prosecutor, the complaint may be filed by the offended party or a peace officer directly with the proper court on the basis of the affidavit of the offended party or arresting officer. Before the • complaint or information is filed, the person arrested may ask for a preliminary investigation in accordance with this Rule, but he must sign a waiver of the provisions of Art. 125 of the Revised Penal Code, as amended, in the presence of his counsel. Notwithstanding the waiver, he may apply for bail and the investigation must be terminated within 15 days from its inception. After the filing of the complaint or information in court without a preliminary investigation, the accused may, within 5 days from the time he learns of its filing, ask for a preliminary investigation with the same right to adduce evidence in his defense as provided in this Rule [Sec. 7, Rule 112, Rules on Criminal Procedure].

Question 32

After arraignment, the accused filed a motion to quash on the ground of lack of preliminary investigation. Will the motion prosper?

Answer 32

Be that as it may, the lack of preliminary investigation is not a ground for a motion to quash. The case must be suspended with respect to the petitioner even if the case is already undergoing trial [Yusop v. Sandiganbayan, supra.]. The right is not waived by the filing of motion to be admitted to bail. But the right is waived when the accused fails to invoke it before or at the time of entering a plea at arraignment [People v. Velasquez

Question 33

Meaning of Equal Protection of the laws

Answer 33

All persons or things similarly situated should be treated alike, both as to rights conferred and responsibilities imposed.

Question 34

Requisites for Valid Classification (Equal Protection Clause)

Answer 34

a) Substantial distinctions which make for real differences. b) Germane to the purpose of the law. c) Not limited to existing conditions only. d) Must apply equally to all members of the same class.

Question 35

DPWH Administrative Order No. 1, which prohibited motorcycles on limited access highways is violative of the equal protection clause Is the contention valid?

Answer 35

In Mirasol v. DPWH, G.R. No. 158793, June 8, 2006, where the petitioners assailed the validity of DPWH Administrative Order No. 1, which prohibited motorcycles on limited access highways on the basis of RA 2000 (Limited Access Highway Act), the Supreme Court held that there is a real and substantial distinction between a motorcycle and other motor vehicles.Not all motorized vehicles are created equal — real and substantial differences exist between a motorcycle and other forms of transport sufficient to justify its classification among those prohibited from plying the toll ways

Question 36

A law exempting CAGELCO from the payment of VAT is violative of the equal protection clause. Is the contention correct?

Answer 36

Tolentino v. Secretary of Finance, supra., the Court rejected the contention that the exemption from VAT of electric cooperatives and sales of realty to the “homeless poor” violated the equal protection clause. The classification between electric and other cooperatives rests on a Congressional determination that there is greater need to provide cheaper electric power to as many people as possible, especially in the rural areas; and there is a difference between the “homeless poor” and the “homeless less poor”, because the latter class can afford to rent houses in the meantime that they cannot yet buy their own homes, while the former cannot.

Question 37

Retail Trade Nationalization Law prohibited aliens from engaging in retail trade is violative of equal protection clause Is the contention correct?

Answer 37

In Ichong v. Hernandez, supra., the Court upheld the validity of the Retail Trade Nationalization Law despite the objection that it violated the equal protection clause, because there exist real and actual, positive ,and fundamental differences between an alien and a national.

Question 38

The preventive suspension of a policeman lasted until termination of the criminal case against him. He claims that an imposition of preventive suspension of over 90 days is contrary to the Civil Service Law and would be a violation of his constitutional right to equal protection of laws. Is he correct?

Answer 38

The preventive suspension of a policeman lasting until termination of the criminal case against him, as provided in Sec. 47, RA 6975 (DILG Act of 1990), does not violate the policeman’s right to equal protection of the laws. There is substantial distinction between policemen and other government employees; policemen carry weapons and the badge of the law, which can be used to harass or intimidate witnesses against them. Besides, Sec. 42 of P.D. 807 (Civil Service Law), which was raised as argument for equal treatment, refers to preventive suspension in administrative cases, not in criminal cases Himagan v. People

Question 39

investigation of the ombudsman on the basis of an anonymous letter is violative of due process clause. is the contention correct?

Answer 39

In Almonte v. Vasquez, 244 SCRA 286, it was held that the fact that the Ombudsman may start an investigation on the basis of an anonymous letter does not violate the equal protection clause. Firstly, there can be no objection to this procedure because it is provided in the Constitution itself; secondly, in permitting the filing of complaints “in any form and in any manner”, the framers of the Constitution took into account the well-known reticence of people which keep them from complaining against official wrongdoing; finally, the Office of the Ombudsman is different from other investigatory and prosecutory agencies of government because those subject to its jurisdiction are public officials who, through official pressure and influence, can quash, delay or dismiss investigations held against them.

Question 40

A law providing for different tax treatment to Broadcast media and Print media is violative of the equal protection clause. is the contention correct?

Answer 40

In Telecommunications and Broadcast Attorneys of the Philippines v. Comelec, 289 SCRA 337, the Supreme Court found substantial distinction between the print and the broadcast media which would justify different treatment under B.P. 881, viz: the physical limitations of the broadcast spectrum, the pervasive presence of the broadcast media in the lives of Filipinos, and the earlier ruling that the freedom of television and radio broadcasting is somew`hat lesser than the freedom accorded to the print media.

Question 41

The Union claims that the point-of-hire classification employed by the School is discriminatory to Filipinos and that the grant of higher salaries to foreign-hires constitutes racial discrimination. Is there a violation of equal protection clause?

Answer 41

in International School Alliance of Educators v. Quisumbing, G.R. No. 128845, June 1, 2000, it was held that there was no reasonable distinction between the services rendered by “foreign hires” and “local hires” as to justify the disparity in salaries paid to these teachers. If an employer accords employees the same position and rank, the presumption is that these employees perform equal work.

Question 42

law prohibiting members of non-Christian tribes from drinking foreign liquor Is there a violation of equal protection clause?

Answer 42

In People v. Cayat, 68 Phil 12, the Supreme Court upheld the validity of the law prohibiting members of non-Christian tribes from drinking foreign liquor, on the ground that their low degree of culture and unfamiliarity with the drink rendered them more susceptible to its effects. The term ‘non-Christian tribes’ refers, not to religious belief, but, in a way, to the geographical area, and, more directly, to natives of the Philippine Islands of a low grade of civilization, usually living in tribal relationship apart from settled communities.” the free use of highly intoxicating liquors by the non-Christian tribes have often resulted in lawlessness and crimes, thereby hampering the efforts of the government to raise their standard of life and civilization. The law is not limited in its application to conditions existing at the time of its enactment. It is intended to apply for all times as long as those conditions exist.

Question 43

D. Searches and seizures. fSec. 2. Art. Ill:

Answer 43

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 a judge, after examination under oath or affirmation of the complainant and the witnesses he may produce, particularly describing the place to be searched, or the persons or things to the seized

Question 44

Johnny was arrested without warrant. His father filed a case and filed a motion to dismiss on the ground of warantless arrest. Will the motion prosper?

Answer 44

The right is personal; it may be invoked only by the person entitled to it [Stonehill v. Diokno, 20 SCRA 383].

Question 45

The security guards of SM Downtown confiscated shabu in the car of Daniel which was discovered by the opening of the trunk without his consent. Is there a violation of his right against unreasonable search and seizure

Answer 45

The right applies as a distraint directed only against the government and its agencies tasked with the enforcement of the law. The protection cannot extend to acts committed by private individuals so as to bring them within the ambit of alleged unlawful intrusion by the government [People v. Marti, 193 SCRA 57]. the Bill of Rights does not protect citizens from unreasonable searches and seizures by private individuals.

Question 46

is a search warrant after the search valid? what about an arrest warrant after the arrest?

Answer 46

where the search and consequent seizure offish allegedly caught by the use of explosives was made without a warrant, and a search warrant was obtained by the officers only much later, it was held that there was a violation of this constitutional guarantee. The filing of charges and the issuance of the warrant of arrest against a person invalidly detained will cure the defect of that detention, or at least deny him the right to be released [Francisco Juan Larranaga v. Court of Appeals

Question 47

After the accused entered a plea of not guilty, he filed a motion to dismiss on the ground that that the arrest was unlawful. Will the motion prosper?

Answer 47

Objections to the warrant of arrest must be made before the accused enters his plea [People v. Codilla, 224 SCRA 104; People v. Robles, G.R. No. 101335, June 8, 2000]. Failure to do so constitutes a waiver of his right against unlawful restraint of liberty [People v. Penaflorida, G.R. No. 130550, September 2, 1999, reiterating Filoteo v. Sandiganbayan, 263 SCRA 222; People v. Gastador, G.R. No. 123727, April 14, 1999]. Indeed, even assuming that their arrest was illegal, their act of entering a plea during their arraignment constituted a waiver by the accused of their right to question the validity of their arrest [People v. Cachola,

Question 48

Which court should issue the search warrant?

Answer 48

It may be conceded, as a matter of policy, that where a criminal case is pending, the Court wherein it is filed, or the assigned branch thereof, has primary jurisdiction to issue the search warrant; and where no such criminal case has yet been filed, the executive judges, or their lawful substitutes, in the areas and for the offense contemplated in Circular 1-91, shall have primary jurisdiction [Malalaon v. Court of Appeals, 232 SCRA 249], This does not mean, however, that a Court, whose territorial jurisdiction does not embrace the place to be searched, cannot issue a search warrant therefor, where the obtention of such search warrant is necessitated and justified by compelling considerations of urgency, subject, time and place [llano v. Court of Appeals,

Question 49

the Executive Judge of the Regional Trial Court of Manila issued Search Warrant upon application of the Presidential Task Force on Intelligence and Counter-Intelligence (PTFIC). The warrant authorized a search of the house of petitioner William A. Garaygay located in Marigondon, Lapu-Lapu City, a place outside the territorial jurisdiction of the issuing court. Thereafter the PTFIC through its Regional Task Group conducted a raid on the house of petitioner resulting in the seizure of several items of firearms, explosives, ammunition and other prohibited paraphernalia. an Information for violation of PD 18662 was filed before the Regional Trial Court of Lapu-Lapu City against petitioner who upon being arraigned pleaded not guilty. Subsequently, petitioner filed with the Regional Trial Court of Lapu-Lapu City a Motion to Quash Search Warrant and To Exclude Illegally Seized Evidence. On the other hand, the prosecution argued that the motion to quash should have been filed with the RTC of Manila which issued the warrant. Will the Motion Prosper?

Answer 49

Yes. Where a search warrant is issued by one court and the criminal action based on the results of the search is afterwards commenced in another court, the motion to quash may be filed for the first time in either the issuing court or that in which the criminal action is pending.

Question 50

May judge quash the warrant that he personally issued?

Answer 50

The judge may order the quashal of the warrant he issued even after the same had already been implemented, particularly when such quashal is based on the finding that there is no offense committed. This does not trench upon the duty of the prosecutor. The effect of such a quashal is that the items seized shall be inadmissible in evidence [Solid Triangle Sales v. Sheriff

Question 51

may a government agency such as the Bureau of Immigration issue a warrant of arrest?

Answer 51

Only a judge may validly issue a warrant. The Constitution grants the authority to issue a warrant of arrest or a search warrant only to a judge upon fulfillment of certain basic constitutional requirements. Exception. However, in Morano v. Vivo, 20 SCRA 562, it was held that orders of arrest may be issued by administrative authorities, but only for the purpose of carrying out a final finding of a violation of law, e.g., an order of deportation or an order of contempt, but not for the sole purpose of investigation or prosecution. This is reiterated in Sy v. Domingo, infra., where the Supreme Court held that the Bureau of Immigration may issue a warrant of arrest only for the purpose of carrying out a final decision of deportation or when there is sufficient proof of the guilt of the alien.

Question 52

May the Immigration Commissioner order an arrest based on probable cause?

Answer 52

An aberrant case is Harvey v. Santiago, 162 SCRA 840, where the Supreme Court upheld the validity of the arrest of pedophiles on orders of Immigration Commissioner Santiago because there was probable cause, occasioned by months of surveillance made by CID agents on the suspected pedophiles. According to the Court, the requirement that probable cause is to be determined only by a judge does not extend to deportation cases which are not criminal but purely administrative in nature. The existence of probable cause justified the arrest, as well as the seizure of the photo negatives, photographs and posters without warrant.

Question 53

Probable Cause.

Answer 53

Such facts and circumstances antecedent to the issuance of the warrant that in themselves are sufficient to induce a cautious man to rely on them and act in pursuance thereof [People v. Syjuco, 64 Phil 667; Alvarez v. CFI, 64 Phil 33], For a search: “such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place sought to be searched” [Burgos v. Chief of Staff and that he does not have the license or permit to possess the same. Probable cause as applied to illegal possession of firearms should be such facts and circumstances which would lead a reasonably discreet and prudent man to believe that a person is in possession of a firearm and that he does not have the license or permit to possess the same.

Question 54

Is the judge bound by the determination of the fiscal of probable cause?

Answer 54

the Supreme Court ruled that the issuance of a warrant of arrest is not a ministerial function of the judge. While he could rely on the findings of the fiscal, he is not bound thereby. Thus, the determination of probable cause depends to a large extent upon the finding or opinion of the judge who conducted the required examination of the applicant and the witnesses [Kho v. Judge Makalintal,

Question 55

The accused contended the warrant of arrest was invalid as the judge did not personally examined the witnesses as there was no hearing on the existence of probable cause. Is the contention valid?

Answer 55

It is sufficient that the judge “personally determine” the existence of probable cause. It is not necessary that he should personally examine the complainant and his witnesses [Soliven v. Makasiar, 167 SCRA 393]. In Reyes v. Montesa, 247 SCRA 85, the Supreme Court said that a hearing is not necessary for the determination of the existence of probable cause for the issuance of a warrant of arrest. The judge should evaluate the report and prosecutor or require the submission of the supporting affidavits of witnesses to aid him in determining whether probable cause exists.

Question 56

Procedure of issuance warrant of arrest under Rules of Court

Answer 56

Sec. 6, Rule 112 of the Revised Rules on Criminal Procedure now embodies the rulings in Soliven and Lim, with modifications, as follows: “Sec. 6. When warrant of arrest may issue. - (a) By the Regional Trial Court - Within ten days from the filing of the complaint or information, the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause. If he finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused has already been arrested pursuant to a warrant issued by the judge who conducted the preliminary investigation or when the complaint or information was filed pursuant to Sec. 7 of this Rule. In case of doubt on the existence of probable cause, the judge may order the prosecutor to present additional evidence within five days from notice and the issue must be resolved by the court within thirty days from the filing of the complaint or information.”

Question 57

An Information was filed for violation of PD 49 (Protection of Intellectual Property). The judge issued a search warrant for pirated cd or dvds based on the sole evidence of photographs of pirated cds in the place to be searched. Is the search warrant valid?

Answer 57

In cases involving violation of PD 49 (Protection of Intellectual Property), a basic requirement for the validity of the search warrant is the presentation of the master tape of the copyrighted films from which the pirated films are supposed to have been copied [20th Century Fox v. Court of Appeals, 162 SCRA 655].

Question 58

Where a search warrant was issued for the seizure of shabu and drug paraphernalia, but probable cause was found to exist only with respect to the shabu Is the search warrant invalid?

Answer 58

Where a search warrant was issued for the seizure of shabu and drug paraphernalia, but probable cause was found to exist only with respect to the shabu, the warrant cannot be invalidated in toto; it is still valid with respect to the shabu [People v. Salanguit, supra.].

Question 59

Distinguish determination of probable cause during Preliminary Inquiry from determination of probable cause Preliminary Investigation

Answer 59

There is a distinction between the preliminary inquiry which determines probable cause for the issuance of a warrant of arrest and the preliminary investigation proper which ascertains whether the offender should be held for trial or be released. The determination of probable cause for purposes of issuing the warrant of arrest is made by the judge. The preliminary investigation proper whether or not there is reasonable ground to believe that the accused is guilty of the offense charged is the function of the investigating prosecutor. The former is judicial in nature while the latter is an executive function.

Question 60

Judge issued a warrant of arrest solely based on the certificate from the prosecutor of probable cause. Is the warrant valid?

Answer 60

in Okabe v. Judge Gutierrez, G.R. No. 150185, May 27, 2004, the Supreme Court found the respondent judge to have committed grave abuse of discretion amounting to lack or excess of jurisdiction in finding probable cause for the petitioner’s arrest, because the investigating prosecutor had submitted to the respondent judge only the resolution after his preliminary investigation of the case and the affidavit-complaint of the private complainant. The prosecutor failed to include the affidavits of the witnesses of the private complainant, and the latter’s reply affidavit, the counter-affidavit of the petitioner, as well as the evidence adduced by the private complainant. More reprehensible was the action of the judge who issued a warrant of arrest not only without following the procedure to determine the existence of probable cause but was so negligent not to notice that there was not even a prosecutor’s certification to rely upon because there was no information that had yet been filed in court [Talingdan v. Judge Eduarte,

Question 61

Procedure for search warrant

Answer 61

Section 4, Rule 126 of the Rules of Court requires that the judge must personally examine in the form of searching questions and answers, in writing and under oath, the complainants and any witnesses he may produce on facts personally known to them, and attach to the record their sworn statements together with any affidavits submitted

Question 62

A judge personally examined the complainants and other witnesses but failed to attached the written depositions in the record for the issuance of search warrant. Is the search warrant valid? Will your answer be the same if affidavits of witnesses were attached?

Answer 62

Yes. Where the judge failed to conform with the essential requisites of taking the deposition in writing and attaching them to the record, it was held that search warrant is invalid, and the fact that the objection thereto was raised only during the trial is of no moment, because the absence of such depositions was discovered only after the arrest and during the trial [People v. Mamaril, G.R. No. 147607, January 22, 2004], However, the Bill of Rights does not make it an imperative necessity that the depositions be attached to the records of an application for a search warrant. The omission would not be fatal if there is evidence on record showing that such personal examination was conducted and what testimony was presented [People v. Tee, In Mata v. Bayona, 128 SCRA 388, it was held that mere affidavits of the complainant and his witnesses were not enough to sustain the issuance of a search warrant. it must be depositions made by the judge.

Question 63

General warrant and scatter-shot warrant

Answer 63

“General warrants” are proscribed and unconstitutional [Nolasco v. Pano, 139 SCRA 152; Burgos v. Chief of Staff, 133 SCRA 800], In Tambasen v. People, 246 SCRA 184, where the search warrant charged violations of two special laws, it was considered a “scatter-shot warrant”, and was declared null and void. Indeed, as held in People v. Tee, supra., what the Constitution seeks to avoid are search warrants of broad and general characterization or sweeping descriptions which will authorize police officers to undertake a fishing expedition to seize and confiscate any and all kinds of evidence or articles relating to an offense.

Question 64

Warrant of Arrest.

Answer 64

A warrant of arrest is said to particularly describe the person to be seized if it contains the name/s of the person/s to be arrested. If the name of the person to be arrested is not known, then a “John Doe” warrant may be issued. A “John Doe” warrant will satisfy the constitutional requirement of particularity of description if there is some descriptio persona which will enable the officer to identify the accused.

Question 65

the search warrant allows the confiscation of an undetermined amount of marijuana is the search warrant valid?

Answer 65

However, in Kho v. Judge Makalintal, G.R. No. 94902- OS, April 21, 1999, it was held that the failure to specify detailed descriptions in the warrant does not necessarily make the warrant a general warrant. Citing Justice Francisco, the Supreme Court said that the “description of the property to be seized need not be technically accurate nor necessarily precise, and its nature will necessarily vary according to whether the identity of the property, or its character, is a matter of concern. The description is required to be specific only in so far as circumstances will allow.” Thus, in People v. Tee, supra., “an undetermined amount of marijuana” was held to satisfy the requirement for particularity of description.

Question 66

Properties subject to seizure

Question 67

Conduct of the Search.

Answer 67

Sec. 7, Rule 126, Rules of Court, requires that no search of a house, room or any of the 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, in the presence of two witnesses of sufficient age and discretion, residing in the same locality. Failure to comply with this requirement invalidates the search [People v. Gesmundo

Question 68

Warrantless arrests

Answer 68

[Sec. 5, Rule 113, Rules of Court]. A peace officer, or even a private person, may effect an arrest without a warrant: a) When the person to be arrested has committed. is»actuallv committing, or is attempting to commit an offense in his presence.

Question 69

As kidnapping with serious illegal is continuing crime. the accused can be arrested anytime? Is there a violation of unlawful arrest?

Answer 69

In Umil v. Ramos, 187 SCRA 311, the Supreme Court held that rebellion is a continuing offense. Accordingly, a rebel may be arrested at any time, with or without a warrant, as he is deemed to be in the act of committing the offense at any time of day or night. See also the Resolution on the Motion for Reconsideration, 202 SCRA 252. However, even if in Parulan v. Director of Prisons, kidnapping with serious illegal continuing crime, it can be considered as such only when the deprivation of liberty is persistent and continuing from one place to another

Question 70

Manila Ordinance No. 7783, which prohibited “the establishment or operation of businesses providing certain forms of amusement, entertainment, services and facilities in the Ermita-Malate area Is the police power in accordance with the law?

Answer 70

In City of Manila v. Judge Laguio, G.R. No. 118127, April 12, 2005,the Supreme Court declared as an invalid exercise of the police power City of Manila Ordinance No. 7783, which prohibited “the establishment or operation of businesses providing certain forms of amusement, entertainment, services and facilities in the Ermita-Malate area”. Concedely, the ordinance was enacted with the best of motives and shares the concern of the public for the cleansing of the Ermita-Malate area of its social sins. Despite its virtuous aims, however, the enactment of the ordinance has no statutory or constitutional authority to stand on. Local legislative bodies cannot prohibit the operation of sauna and massage parlors, karaoke bars, beerhouses, night clubs, day clubs, supper clubs, discotheques, cabarets, dance halls, motels and inns, or order their transfer or conversion without infringing the constitutional guarantees of due process and equal protection of the laws, not even in the guise of police power.

Question 71

Limitations for the valid excercise of police power:

Answer 71

1. Lawful Subject: The interests of the public generally, as distinguished from those of a particular class, require the interference of the state(Equal Protection Clause) 2. Lawful Means: The means employed are reasonably necessary for the attainment of the object sought to be accomplished and not duly oppressive (Due Process Clause) 3. Exercisable only within the territorial limits of the LGU, except for protection of water supply (LGC, Sec. 16) 4. Must not be contrary to the Constitution and the laws.

Question 72

“An Ordinance” prohibiting short time admission in hotels, motels, lodging houses, pension houses and similar establishments in the City of Manila. Is the ordinance valid?

Answer 72

(Cite substantive requirements for valid ordinance here) (Cite Requisites for Valid Police Power here) 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. White light Corporation vs Manila

Question 73

An ordinance imposing 1. P6,000.00 fee per annum for first class motels and P4,500.00 for second class motels; 2. require the owner a hotel to refrain from entertaining or accepting any guest or customer without his filling up the prescribed form in a lobby open to public view at all times 3. the premises and facilities of such hotels would be open for inspection either by the City Mayor, or the Chief of Police is the ordinance valid?

Answer 73

Yes Ordinance is a valid exercise of police power to minimize certain practices hurtful to public morals. There is no violation o constitutional due process for being reasonable and the ordinance is enjoys the presumption of constitutionality absent any irregularity on its face. .As such a limitation cannot be viewed as a transgression against the command of due process. It is neither unreasonable nor arbitrary. Precisely it was intended to curb the opportunity for the immoral or illegitimate use to which such premises could be, and, according to the explanatory note, are being devoted Ermita Malate Hotel

Question 74

Equipoise rule.

Answer 74

The equipoise rule invoked by the petitioner is applicable only where the evidence adduced by the parties are evenly balanced, in which case the constitutional presumption of innocence should tilt the scales in favor of the accused Corpus v. People,

Question 75

The Sangguniang Panlungsod of Davao City enacted Ordinance No. 0309, Series of 2007, after a committee hearing and consultations with various stakeholders, on imposing a ban against aerial spraying as an agricultural practice by all agricultural entities within Davao City. Mayor Rodrigo Duterte approved the said ordinance and took effect on March 23, 2007. Is the Ordinance valid?

Answer 75

Ordinance No. 0309-07 violates the Due Process Clause (Cite substantive requirements for valid ordinance here) Section 5 of Ordinance No. 0309-07 is unreasonable and oppressive in that it sets the effectiveness of the ban at three months after publication of the ordinance. The impossibility of carrying out a shift to another mode of pesticide application within three months can readily be appreciated given the vast area of the affected plantations and the corresponding resources required therefor. Ordinance No. 0309-07 violates the Equal Protection Clause (Cite Requisites for Valid Classification here) The total ban on aerial spraying runs afoul with the equal protection clause because it does not classify which substances are prohibited from being applied aerially even as reasonable distinctions should be made in terms of the hazards, safety or beneficial effects of liquid substances to the public health, livelihood and the environment. Mosqueda v Pilipino Banana Growers and Exporters Association

Question 76

Substantive (due process) requirements for an ordinance to be valid:

Answer 76

For an ordinance to be valid, 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

Question 77

Whether the failure to give petitioner the opportunity to comment or oppose private respondent’s Manifestation and Motion for Partial Reconsideration is a denial of due process

Answer 77

. In Quintos v. Comelec, G.R. No. 149800, November 21, 2002,it was held that there was no denial of due process since petitioner subsequently filed a motion for reconsideration which the COMELEC considered and acted on, albeit unfavorably. The essence of due process is simply an opportunity to be heard, or as applied to administrative proceedings, an opportunity to explain one’s side or an opportunity to seek a reconsideration of the assailed action or ruling. Petitioner cannot successfully invoke deprivation of due process since the COMELEC gave petitioner the chance to be heard in his motion for reconsideration.

Question 78

Discuss the Quinto v Comelec Decision vis-a-vis the Resolution

Answer 78

The original decision, penned by J. Nachura held that the resign to run provision is unconstitutional. It held that right to run for public office is a fundamental right protected by the Philippine Constitution, specifically section 4 on Freedom of Expression and section 8 Right to Association of Article III. The right to run provision should be struck down because it is a sweeping restriction that would create an absurdity that even a utility worker who intends to run for an elective post would be automatically resigned even if he cannot in any way use his position as utility worker to influence the results of the election. Thus, it was held that this restriction was overbroad since it applied to all appointive officials indiscriminately. The original ruling also saw no valid justification in applying the automatic resignation rule exclusively to appointive officials and not to elected ones. On the other hand, in the reversed ruling, penned by J. Puno, it held that the resign to run rule is constitutional. There was substantial distinction between appointive and elective official. It was emphasized that the purpose of the law is to allow elective officials serve until the end of their term regardless of the filing of their certificates of candidacy. On the contrary, the automatic resignation rule was imposed upon appointive officials because unlike elected politicians, “appointive officials, as officers and employees in the civil service, are strictly prohibited from engaging in any partisan political activity. candidacy is not a fundamental right and is neither covered by the freedom of expression nor the right to association. More importantly, it was ruled that the resign-to-run rule on appointive officials does not violate a person’s right to run for public office because such right must give way to the substantial public interest —to maintain a civil service that is impartial and free from the evils of partisan politics.

Question 79

EO 1 was issued by President Aquino to investigate reported cases of graft and corruption of the Arroyo administration. Is such action valid?

Answer 79

A: NO. 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. (Biraogo v. Philippine Truth Commission of 2010, G.R. No. 192935, December 7, 2010)