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POLITICAL LAW REVIEWER

(May 2015 Edition)


PART I

POLITICAL LAW
1. Define Political Law
It is that branch of public law which deals with the organization and
operations of the governmental organs of the State and defines the
relations of the State with the inhabitants of its territory. (PEOPLE VS.
PERFECTO, 43 Phil. 887)
2. What are included in Political Law?

Constitutional Law;
Administrative Law
Law of Public Officers
Law on Public Corporation
Election Law

3. What is the doctrine of constitutional supremacy?


Under the doctrine of constitutional supremacy, if a law or
contract violates any norm of the constitution that law or contract
whether promulgated by the legislative or by the executive branch
or entered into by private persons for private purposes is null and
void and without any force and effect. Thus, since the Constitution is
the fundamental, paramount and supreme law of the nation, it is
deemed written in every statute and contract. (Manila Prince
Hotel Corporation Case)
4. What are the requisites for the valid exercise of peoples
initiative to propose amendments to the Constitution?
It is provided under Section 2, Art. XVII of the Constitution which provides that
Amendments to this Constitution may likewise be directly proposed by the people
through initiative upon a petition of at least 12% of the total number of registered
voters, of which every legislative district must be represented by at least 3% of the
registered voter therein. The Congress shall provide for the implementation of the
exercise of this right---which means that there must be complete and adequate law for
the said purpose.
5. Is there a law which would provide for the mechanism for the
people to propose amendments to the Constitution by peoples initiative?
While Congress had enacted RA 6735 purportedly to provide the mechanisms
for the peoples exercise the power to amend the Constitution by peoples initiative,
the Supreme Court in MIRIAM DEFENSOR-SANTIAGO,
et al. Vs. COMELEC,
G.R. No. 127325, March 19, 1997 & June 10, 1997, the Supreme Court held that
RA 6735 is incomplete, inadequate or wanting in essential terms and

conditions insofar as initiative on amendments to the Constitution is


concerned. Its lacunae on this substantive matter are fatal and cannot be
cured by empowering the COMELEC to promulgate such rules and
regulations as may be necessary to carry the purposes of this act.
However, in LAMBINO VS. COMELEC, the Supreme Court
on
November 21, 2006, in the Minute Resolution of the petitioners Motion for
Reconsideration, held that RA No. 6735 is adequate and complete for the
purpose of proposing amendments to the Constitution through peoples
initiative by a vote of 10 members as per Certification of the En Bancs Clerk
of Court.
5-a. May the question Do you approve the amendment of Articles VI
and VII of the 1987 Philippine Constitution changing the form of government
from Presidential-Bicameral to Parliamentary-Unicameral be allowed to be
submitted to the people for their ratification or rejection as a means of
amending the Constitution by peoples initiative if the requisite number of
signatories (12% nationwide and at least 3% for every legislative district)
are met?
No, for two (2) reasons.
1. The said proposal did not indicate which provisions of Articles VI and VII
are actually being amended which is a must under Section 2, Art. XVII. Otherwise, who
shall make the amendments if the people in a plebiscite approve the same?;
2. Changing the form of government from presidential to parliamentary is an
act of REVISING the Constitution which is not allowed under Art. XVII, Section 2.
Peoples initiative may only be allowed to propose amendments to the Constitution,
not revision.
6. What are the requisites before an amendment to the Constitution
by peoples initiative is sufficient in form and in substance?
In the case of RAUL L. LAMBINO and ERICO B. AUMENTADO , together
with 6,327,952 registered voters vs. THE COMMISSION ON ELECTIONS, G.R.
No. 174153, October 25, 2006, 505 SCRA 160, the following requisites must be
present:
1.
2.

The people must author and must sign the entire proposal. No agent or
representative can sign for and on their behalf;
As an initiative upon a petition, THE PROPOSAL MUST BE EMBODIED IN
THE PETITION ITSELF.

These essential elements are present only if the full text of the
proposed amendments is first shown to the people who will express their
assent by signing such complete proposal in a petition. Thus, an amendment is
DIRECTLY PROPOSED BY THE PEOPLE THROUGH INITIATIVE UPON A PETIITON ONLY
IF THE PEOPLE SIGN ON A PETITION THAT CONTAINS THE FULL TEXT OF THE
PROPOSED AMENDMENTS.
7. Distinguish Revision from amendment of the Constitution.
Revision is the alterations of the different portions of
the entire document [Constitution]. It may result in the rewriting
whether the whole constitution, or the greater portion of it, or

2
perhaps some of its important
provisions. But whatever results the
revision may produce, the factor that
characterizes it as an act of revision
is the original intention and plan
authorized to be carried out. That
intention and plan must contemplate
a consideration of all the provisions
of the Constitution to determine
which one should be altered or
suppressed or whether the whole
document should be replaced with
an entirely new one.
Amendment
of
the
Constitution, on the other hand,
envisages a change or only a few
specific provisions. The intention of
an act to amend is not to consider
the advisability of changing the
entire constitution or of considering
that possibility. The intention rather
is to improve specific parts of the
existing constitution or to add to it
provisions deemed essential on
account of changed conditions or to
suppress portions of it that seem
obsolete,
or
dangerous,
or
misleading in their effect. (SINCO,
Vicente, PHILIPPINE POLITICAL
LAW, as cited in Santiago vs.
COMELEC
&
LAMBINO
VS.
COMELEC)
8. May Congress propose amendments
to the Constitution while at the same time
enacting a law calling for a Constitutional
Convention to propose amendments to
the
Constitution?
Yes, there is no prohibition for
Congress to propose amendments to the Constitution
and at the same time call for the convening of a
Constitutional Convention to amend the Constitution.
The word or in the provision Congress, upon a
vote of of all its members; OR [2] A constitutional
Convention under Section 1, Art. XVII also means
AND. (GONZALES VS. COMELEC, 21 SCRA 774).
IN SHORT, IT APPEARS THAT THERE IS NO
PROHIBITION
FOR
CONGRESS,
A
CONSTITUTIONAL CONVENTION AND THE PEOPLE
MAKING
A
PROPOSAL
TO
AMEND
THE
CONSTITUTION AT THE SAME TIME SINCE THIS IS
A POWER SEPARATELY GRANTED TO THEM BY
THE CONSTITUTION UNDER ART. XVII OF THE
1987 CONSTITUTION.

11. What are the elements of a state?


As held in COLLECTOR VS. CAMPOS RUEDA,
42 SCRA 23, the elements of a state are.
1. people
2. territory
3. sovereignty
4. government
12. Are the two-fold function of
government as enumerated by the Supreme
Court in BACANI VS. NACOCO, 100 Phil. 468
(Ministrant [merely directory] and Constituent
[Mandatory] Functions) still applicable today?
No more as held in ACCFA VS. CUGCO, 30
SCRA 649. This is due to complexities of the changing
society, the two-fold function of the government as
classified by President Wilson is no longer relevant as a
result of the changing society wherein what are
considered merely ministrant functions of the State
before are now considered constituent , or vice versa.
13. What kind of government was the
Aquino Government after former President
Marcos left Malacanang for Hawaii due to the
EDSA Revolution in February 1986.
As held in In Re: SATURNINO BERMUDEZ,
145 SCRA 160, the same is de jure. A government
formed as a result of a peoples revolution, is
considered de jure if it is already accepted by the
family of nations or other countries like the United
States, Great Britain, Germany, Japan, and others.
14. What are the
facto government?

As held in CO KIM CHAM VS. VALDEZ TAN


KEH, 75 Phil. 113, the three (3) kinds of de facto
governments are:
a.

The
first,
or
government
de
facto in a proper
legal sense, is that
government
that
gets
possession
and control of, or
usurps, by force or
by the voice of the
majority,
the
rightful
legal
governments and
maintains
itself
against the will of
the latter, such as
the government of
England under the
Commonwealth,
first by Parliament
and
later
by
Cromwell
as
Protector.

b.

The second is that


which
is
established
and
maintained
by
military forces who
invade and occupy
a territory of the
enemy
in
the
course of war, and

9. What is the Doctrine of Proper


Submission in connection with proposed
amendments to the Constitution?
Doctrine of Proper Submission means all
the proposed amendments to the Constitution shall be
presented to the people for their ratification or
rejection at the same time, not piecemeal.
(TOLENTINO VS. COMELEC, 41 SCRA 702)
10. What is the archipelagic doctrine or
archipelago theory?
It is the 2nd sentence of Section 1, Art. I of the
Constitution which states that the waters around,
between and connecting the islands of the
archipelago, regardless of their breadth and
dimensions, form part of the internal waters of
the Philippines.

three (3) kinds of de

3
which
is
denominated
a
government
of
paramount force,
as the cases of
Castine, in Maine,
which was reduced
to
British
possession in the
war of 1812, and
Tampico, Mexico,
occupied
during
the
war
with
Mexico,
by
the
troops
of
the
United States.
c.

And the third is


that established as
an
independent
government by the
inhabitants of a
country who rise in
insurrection
against the parent
state of such as
the government of
the
Southern
Confederacy
in
revolt
not
concerned in the
present case with
the first kind, but
only
with
the
second and third
kinds of de facto
governments.
"But
there is another
description
of
government, called
also by publicists a
government
de
facto, but which
might, perhaps, be
more
aptly
denominated
a
government
of
paramount
force.
Its
distinguishing
characteristics are
(1),
that
its
existence
is
maintained
by
active
military
power
with
the
territories,
and
against the rightful
authority
of
an
established
and
lawful government;
and
(2),
that
while it exists it
necessarily
be
obeyed
in
civil
matters by private
citizens who, by
acts of obedience
rendered
in
submission to such
force,
do
not
become
responsible,
or

wrongdoers,
for
those acts, though
not warranted by
the laws of the
rightful
government.
15.
What
postliminy
theory
postliminium?

is
or

the
jus

When a foreign power occupies a state and


exercises the powers of government, the political laws
of the said state are deemed automatically suspended
but the former government automatically comes to life
and will be in force and in effect again upon the reestablishment of the former government. (Taylor,
International Law, p. 615.)
16. What is the doctrine of sovereignty
as auto limitation?
In the succinct language of
Jellinek, it "is the property of a
state-force due to which it has
the exclusive capacity of legal
self-determination
and
selfrestriction." A state then, if it
chooses to, may refrain from the
exercise of what otherwise is
illimitable competence."
The
opinion was at pains to point out
though that even then, there is at
the most diminution of jurisdictional
rights, not its disappearance. (Cited
in
Reagan
vs.
Commissioner,
PEOPLE VS. GOZO, 53 SCRA 476
and
COMMISSIONER
VS.
ROBERTSON, 143 SCRA 397)
17. What is the incorporation theory
or
the
Incorporation
Clause
of
the
Constitution?
It is the principle embodied in Section 2,
Article II of the Constitution which states that The
Philippines
adopts the generally accepted
principles of international law as part of the law
of the land.
(MEJOFF VS. DIRECTOR OF
PRISONS, 90 Phil. 70) As such, even if the
Philippines is not a signatory to a generally
accepted principle of international law like the
Geneva Convention on Land Warfare, it may
validly use the same in the trial of war criminals
during the Second World War.
KURODA VS.
JALANDONI, 83 Phil 171, and AGUSTIN VS. EDU,
88 SCRA 195).
18. In case of conflict between a
constitutional right of a citizen and a generally
accepted principle of international law, which
shall prevail?
In the case of
4) AGUSTIN VS.
EDU, 88 SCRA 195
REYES VS. BAGATSING,125 SCRA 553, the
Supreme Court held that the constitutional right
shall prevail. Though Article 22 of the Vienna
Convention on Diplomatic Relations prohibits
rallies within 500 feet of any foreign embassy, the
same shall give way to the constitutional right of
the citizens to peaceably assemble and to
petition the government for redress of their
grievances.

4
19. May a citizen refuse to render
personal military service/training because he
does not have military inclination or he does not
want to kill or be killed?
No as held in PEOPLE VS. LAGMAN, 66
Phil. 13. The appellants argument that he does
not want to join the armed forces because he
does not want to kill or be killed and that he has
no military inclination is not acceptable because it
is his obligation to join the armed forces in
connection with the defense of the State
provision of the Constitution.
20. Is the separation of church and
state a myth or a reality?
It is a reality as shown by the following
provisions of the Constitution.
1.

ART. III, Sec. 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.

2.

ART. VI, Sec. 28 (3). Charitable


institutions, churches, mosques, nonprofit cemeteriesactually, directly
and exclusively used for religious,
charitable, or educational purposes
shall be exempt from taxation.

3.

ART. VI, Sec. 29 .(2). No public


money
or
property
shall
be
appropriated, applied, paid, for the
benefit, directly or indirectly, for the
use, benefit, or support of any sect,
church, denomination or religion,
except when such priest, minister.. is
assigned to the armed forces, or to any
penal
institution,
or
government
orphanage or leprosarium.

4.

ART.
IX,
C,
2(5).
Religious
denominations and sects shall not be
registeredas political parties. (NOTE:
Religious
organizations
are
also
prohibited ion connection with sectoral
representatives under Art. VI)

5.

ART. XIV, Sec. 3(3). At the option in


writing by parents, religion shall be
allowed to be taught to their children in
elementary and high schools within the
regular class hours by instructors
designated or approved by religious
authorities to which said children
belong, without additional cost to the
government.

21. What are the factors to be


considered by the Philippines in dealing with
other nations?
As provided in Section 7 of Art. II, The
Philippines shall pursue an independent foreign policy.
In its relations with other states the paramount
consideration shall be [1] national sovereignty, [2]
territorial integrity, [3] national interest, and [4]
the right to self-determination,

22. Is there absolute prohibition for the


Philippines to be equipped with nuclear
weapons?
No, as stated in Section 8, Art. II, the
Philippines, consistent with the national interest,
adopts and pursues a policy of freedom from nuclear
weapons in its territory. As such, if it is consistent with
national interest, the same is not prohibited.
23. Is divorce prohibited by the 1987
Philippine Constitution?
:
Father Bernas opines that the provision of
the Constitution (Section 12, Art. III) which provides in
part that the State shall strengthen the family does
not take a stand on divorce though it appears that a
divorce law would break the family instead of
strengthening it. As such, a Divorce Law to be
passed by Congress may or may not be
unconstitutional.
23.
Philippines?

Is

abortion

allowed

in

the

Section 12, Art. II prohibits all forms of


abortion except therapeutic abortion or when the life
of the mother is in danger. (Note: In the United States,
abortion is allowed but only up to the 2 nd trimester of
the pregnancy [ROE vs. WADE])
23-a.
Is
the
provision
of
the
Reproductive Health law allowing contraceptives
violative of Section 12, Art. II of the Constitution
which prohibits abortion?
No provided said contraceptives do not kill or
destroy a fertilized ovum. But contraceptives that
prevent the union of male sperm and female ovum are
not prohibited by the Constitution. Contraceptives
before fertilization are not prohibited. (IMBONG VS.
OCHOA, GR No. 204819, April 8, 2014)
23-b. Does the provision of the RH Law
allowing a spouse to undergo reproductive
health
procedures
like
tubal
ligation
or
vasectomy without the knowledge and consent
of the husband constitutional?
It is unconstitutional because it violates the
provisions on family. Family is shared by both souses.
One person cannot complete a family. There should be
mutual decision-making on the part of the spouses on
said procedures. IMBONG VS. OCHOA,
GR No.
204819, April 8, 2014)
23-c. Does the provision of the RH Law
allowing
contraceptives
violative
of
the
constitutional provision on the right to health
since contraceptives are hazardous to ones
health?
No. There exists adequate safeguards in the
RH Law which safeguards that only contraceptives
which are safe shall be made available to the public
because
dispensation
and
distribution
of
contraceptives shall still require the prescription of a
physician. IMBONG VS. OCHOA, GR No. 204819,
April 8, 2014)
24. Is a law prohibiting the sale of girlie
(bold) magazines to minors violates the right
of parents in rearing their children for civic
efficiency?

5
No, as held in the case of GINSBERG VS.
NEW YORK, 390 US 629 (1969), a law prohibiting
the sale of girlie magazines [bold?) is constitutional
and does not violate the above provision. This is so
because parents could buy said magazines for their
children if they believe the same is already suitable to
the understanding of their child. This is in accordance
with this provision which states that the parents have
the natural and primary right in rearing their
child for civic efficiency
25. May the State prohibit the teaching
of a particular language in any school?
No as held in MEYER VS. NEBRASKA, 260
US 260 (1922) because the child is not a mere
creature of the State and the parents have the natural
right and duty of rearing their children for civic
efficiency.
26. May the State require parents to
enroll their small children only to public schools
valid?
As held in PIERCE
VS. SOCIETY OF
SISTERS, 268 US 510 (1925), a law requiring small
kids to be enrolled in public schools only is
unconstitutional since it interferes with the right of
parents in rearing their children. They have the right to
choose which school is best suited for the development
of their children without interference from the State.
THIS IS SO BECAUSE THE CHILDREN ARE NOT MERE
CREATURES OF THE STATE.
27. Do we practice the free enterprise
system in the Philippines or is it the welfare
state concept? Distinguish the two.
As held in
ACCFA VS. CUGCO, 30 SCRA 649
the Philippines never practiced the free enterprise
system. It is the welfare-state concept which is being
followed as shown by the constitutional provision on
agrarian reform, housing, protection to labor (NOTE,
however, that the 1987 Constitution have provisions
which provide for free enterprise). The said doctrine
was
reiterated
in
PHILIPPINE
COCONUT
DESICCATORS
VS.
PHILIPPINE
COCONUT
AUTHORITY, 286 SCRA 109 where it was held that
the Philippine Constitutions, starting from the 1935
document, HAVE REPUDIATED laissez faire (or the
doctrine of free enterprise) as an economic principle,
and although the present Constitution enshrines free
enterprise as a policy, it nevertheless reserves to the
government the power to intervene whenever
necessary to promote the general welfare. As such,
free enterprise does not call for the removal of
protective regulations for the benefit of the general
public. This is so because under Art. XII, Sections 6 and
9, it is very clear that the government reserves the
power to intervene whenever necessary to promote
the general welfare and when the public interest so
requires.
27-a. Is the Trade Liberalization Act of
2000, RA No. 8762 which allows foreigners to
engage in retail trade in the Philippines violative
of Secs. 9, 19 and 20 , At. II of the Constitution
which mandates that the national economy shall
be effectively controlled by Filipinos?
No, said law is constitutional. As held by the
Supreme Court in REP. GERARDO ESPINA ET AL VS.
EXEC. SEC. RONALDO ZAMORA, G.R. No. 143855,
September 21, 2010 (The Trade Liberalization Act of
2000, RA No. 8762) which allows foreigners to engage

in retail trade in 4 categories is not unconstitutional for


alleged violation of Secs. 9, 19 and 20 of Art. II which
mandates that the national economy shall be
effectively controlled by Filipinos. The constitutional
provisions does not prohibit foreign investments BUT
ONLY TO REGULATE THE SAME. As such, the claim that
as a result of the law, WALMART and KMART retailers
could come to the Philippines and would KILL Filipino
retailers has no basis because foreign participation in
retail business is limited.
27-b. May the PCGG Commissioners refuse to
appear before a Senate Committee conducting alleged
irregularities committed by them while sitting in the
Board of PHILCOMSAT, a private firm sequestered by
the government on account of Executive Order No. 1
providing that they should not be the subject of any
investigation in connection with their acts in
connection with the performance of their duties as
such?
No. Such act would violate Section 28, Art. II
of the Constitution mandating disclosure of all public
transactions involving the public interest. Such act
would also violate the right to information on matters
of public concern as well as the public accountability
of public officials as embodied in Section 1, Art. XI of
the 1987 Constitution, not to mention that such would
render nugatory the power of Congress under Section
21, Art. VI. IN FACT, GOVERNMENT OFFICIALS HAVE
ONLY A LIMITED RIGHT TO PRIVACY. (SABIO VS.
GORDON, 504 SCRA 704)
28. What Are the limitations to the
Congress power to exercise legislative power?
The limitations are:
1. it cannot pass irrepealable laws
2. principle of separation of powers
3. non-delegability of legislative powers
28-a. Is the Pork Barrel System or the
Priority Development Assistance Fund (PDAF) of
Senators and Congressmen constitutional?
It is unconstitutional for it
following
provisions
or
principles
Constitution:

violates
under

the
the

1.

SEPARATION OF POWERS. This is so


because Congress should enact laws only
and that the executive department shall
implement the same.In the case of the
Pork Barrel System, Congress will enact it
but the individual members of Congress
still play a role in its implementation. The
Supreme Court in ABAKADA PARTY
LIST VS. PURISIMA, 562 SCRA 251
had already held that from the
moment the law becomes effective,
any provision of the law which
empowers Congress or any of its
Members to play any role in the
implementation or enforcement of
the law violates the separation of
powers.

2.

NON-DELEGATION OF LEGISLATIVE
POWERS. The power of appropriation is
lodged in CONGRESS AS A WHOLE. The
Pork
Barrel
System
confers
on
INDIVIDUAL
LEGISLATORS
postenactment
authority on his pork
barrel . This violates the non-delegation
of legislative power because such act
ALLOWS
EACH
LEGISLATOR
TO

6
EFFECTIVELY EXERCISE THE POWER OF
LEGISLATION on his appropriated pork
barrel.
3.

4.

5.

CHECKS AND BALANCES. Since the


PDAF
does
not
contain
specific
appropriations of money but only a
general
provision
granting
P200,000,000.00 for each Senator and
P70,000,000.00 for each Member of the
House of Representatives, the President
is deprived of his veto power on specific
item in the General Appropriations Act.
The PDAF violates Section 25 [4], Art. VI
of the 1987 Philippine Constitution which
provides that special appropriations shall
specify the purpose for which it is
intended. In the case of the PRIORITY
DEVELOPMENT ASSISTANCE FUND
(PDAF), after the General Appropriations
Act is passed, individual legislators would
then receive their personal lump-sum
allocations
and
could
effectivewly
appropriate PDAF Funds based on their
discretion.
ACCOUNTABILITY
OF
PUBLIC
OFFICERS. While Congress has the
oversight powers over the funds which it
appropriated and implemented by the
executive agencies of the government
and therefore they could monitor the use
of said funds during budget hearings
through examination of the officials of the
executive department and its power of
inquiry in aid of legislation, the same
could not be done for the lump-sum
allocations or PDAF of members of
Congress.
AUTONOMY OF LOCAL GOVERNMENT.
As a result of the power granted by the
General Approriations Act authorizing the
Members of Congress to participate in
the post-enactment implementation of
the funds covered by their pork barrel,
it subverts local autonomy because
legislators, in effect, intervene in purely
local matters. GRECO BELGICA, ET AL.
VS.
EXECUTIVE
SECRETARY
PPAQUITO OCHOA, ET AL., G.R. No.
208560, November 19, 2013 and
companion cases)

NOTE: The Supreme Court did not rule on whether or


not the pork barrel system perpetuates political
dynasty because up to the present, there is yet no
Political Dynasty Law enacted by Congress even
though the latter was mandated by the Constitution to
enact on. The Supreme Court, however, recognized the
effect of said pork parrel of each legislator as very
effective in perpetuating his and his familys control
over his district.
29. What are the constitutionally allowed
delegation of legislative power by Congress?
The permissible
power are.

delegation of legislative

1)
Sec. 23 (2) of Article VI
(Emergency powers to the President in case of
war or other national emergency, for a limited
period and subject to such restrictions as

Congress may provide, to exercise powers


necessary and proper to carry out a declared
national policy. Unless sooner withdrawn by
Resolution of Congress, such powers shall
cease upon the next adjournment thereof.
2) Sec. 28 (2) of Article VI. 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.
3)

Delegation

to

local

governments
4) Delegation of
power to administrative bodies

Rule-making

5) Delegation to the People


(Section 2, Art. XVII of the Constitution and Section 32,
Article VI---The Congress shall, as early as possible,
provide for a system of initiative and referendum, and
the exceptions therefrom, whereby the people can
directly propose and enact laws or approve or reject
any act or law or part thereof passed by the Congress
of local legislative body after the registration of a
petition thereof signed by at least 10% of the total
number of registered voters, of which every legislative
district must be represented by at least 3% of the
registered voters thereof.
30. What is the completeness test? The
sufficiency of standard test?
As held in PELAEZ VS. AUDITOR GENERAL,
15 SCRA 569:
(a) Completeness Test simply means that
the law must be complete in itself when it left
Congress. It must set forth therein the policy to be
executed, carried out or implemented by the delegate
which is not given any discretion; and
(b) Sufficiency of Standards Test simply
requires Congress to fix a standard, the limits of which
are sufficiently determinate or determinable to which
the delegate must conform in the performance of his
functions.
Some of the standards to guide the
delegate are general welfare, public interest, etc.
31. Is it constitutional for the COMELEC
to require candidates for all elective offices,
including those for President, VP, Senators and
members of the House of Representatives to
submit a Certification from a governmentaccredited drug-testing centers that they are
free from prohibited drugs before their
Certificate of Candidacy is admitted?
No,
the
COMELEC
Resolution
is
unconstitutional. It adds additional qualifications to
those provided for by the Constitution for the
President, VP, Senators and Members of the House of
Representatives. (PIMENTEL VS. COMELEC, G.R.
No. 161658, November 3, 2008)
31-a. Is a Filipino citizen who became a
member of the US Armed Forces and therefore
at one time a US Citizen considered natural
born for purposes of complying with the
qualifications of a member of the House of
Representatives?

7
Yes as held in ANTONIO BENGSON III VS.
HOUSE
OF
REPRESENTATIVES
ELECTORAL
TRIBUNAL and TEODORO CRUZ, 357 SCRA 545
because Rep. Act No. 2630 provides that Any person
who had lost his Philippine Citizenship by rendering
service to, or accepting commission in, the Armed
Forces of the United States, or after separation from
the Armed Forces of the United states, acquired US
citizenship, MAY REACQUIRE PHILIPPINE CITIZENSHIP
BY TAKING AN OATH OF ALLEGIANCE TO THE REPUBLIC
OF THE PHILIPPINES AND REGISTERING THE SAME
WITH THE LOCAL CIVIL REGISTRY IN THE PLACE WHERE
HE RESIDES OR LAST RESIDED IN THE PHILIPPINES.
The said Oath of allegiance shall contain a renunciation
of any other citizenship. And he shall still be
considered natural born Filipino citizen.
32. If the candidate for Congressman is
subsequently disqualified for non-compliance of
the residence requirement under Art. VI, may
the 2nd placer be declared the winner in his
place? When may the 2nd placer be allowed to be
declared the winner?
It depends. As held in OCAMPO VS. HOUSE
ELECTORAL TRIBUNAL
and MARIO CRESPO,
a.k.a. MARK JIMENEZ, June 15, 2004.
1.

2.

There must be a final judgment disqualifying


a candidate in order that the votes of a
disqualified candidate can be considered
stray. This final judgment must be rendered
BEFORE THE ELECTION. (FR. NARDO
CAYAT VS. COMELEC, 2007). This was the
ruling in the case of CODILLA VS. DE VENECIA.
Hence, when a candidate has not been
disqualified by final judgment and on election
day he obtained the highest number of votes,
the votes cast in his favor cannot be declared
stray.
To
do
so
would
amount
to
disenfranchising the electorate in whom
sovereignty resides. The reason behind this is
that the people voted for him bona fide and in
the honest belief that the candidate was then
qualified to be the person to whom they
would entrust the exercise of the powers of
government.
The
disqualification of a candidate who
obtained the highest number of votes AFTER
THE ELECTION does not entitle the second
placer to be declared the winner. The said
principle was laid down as early as 1912 in
TOPACIO VS. PAREDES and reiterated in the
cases of LABO VS. COMELEC, ABELLA VS.
COMELEC and DOMINO VS. COMELEC.

[NOTE: WHILE THIS CASE INVOLVES A MEMBER


OF THE HOUSE OF REPRESENTATIVES, THE
SUPREME COURT IN THE CASE OF MAQUILING
VS. COMELEC & ARNADO THAT IF THE
CANDIDATE FOR MAYOR WHO RECEIVED THE
HIGHEST NUMBER OF VOTES IS DISQUALIFIED
EVEN AFTER THE ELECTION, THE SECOND
PLACER SHALL TAKE HIS PLACE, NOT THE VICE
MAYOR, BECAUSE THE FORMERS VOTES SHOULD
NOT HAVE BEEN COUNTED AND THE LATTER IS
THE QUALIFIED CANDIDATE WHO OBTAINED THE
HIGHEST NUMBER OF VOTES. (MAQUILING VS.
COMELEC, G.R. No. 195649, April 16, 2013)
32-a. In order to validly create an aditional
district for Cagayan de Oro City, must the
law creating it be first submitted to the
people therein in a plebiscite in accordance

with Section
Constitution?

10,

Art.

of

the

1987

No, because the creation of another district


when the same is warranted as when there is an
increase of population justifying the creation of a
new district does not create a new or divide a local
government unit. What is applicable is Section 5,
Art. VI of the Constitution, not Section 10, Art. X.
(BAGABUYO VS. COMELEC, December 8,
2008)
32-b. Is the creation of a fifth district in
Camarines Sur by dividing the existing 1st
District into two (2) valid even though it will
only have 177,000 plus population which is
short of 250,000 as required under Section 5
[3], Art. VI of the Constitution?
No. The 250,000 population requirement
applies only to make a city entitled to one
legislative district or in the creation of a
new province, NOT IN THE CREATION OF A
NEW DISTRICT IN AN EXISTING PROVINCE.
(BENIGNO AQUINO III VS. COMELEC, April 7,
2010) [Dissenting Opinion of Justice Carpio:
If the majority ruling is to be followed, as
long as the new district or districts will be
carved out from an existing province, then,
even an area with only 200 inhabitants are
allowed to constitute a new district? It
violates the requirement of proportional
representation as well as based on uniform
and progressive ratio]
32-c.
Is the law creating the
new
legislative
district
for
Malolos
City
constitutional since the National Statistics
Office had projected that it will have a
population of 254,030 by the year 2010?
No, there must be 250,000 population on or
before the May 10, 2010 elections. In this case, it
was not clear that it has complied with the
population requirement on election day. 2010 is up
to December of said year. (ALDABA VS.
COMELEC, G.R. No. 188078, January 25,
2010)
32-d. In the computation of party-list
representatives, is the Veterans Federation
Party
vs.
COMELEC
Formula
or
the
Panganiban Formula still applicable?
No more because it results in a mathematical
impossiblity. To strictly comply with it requiring at
least 2% for every sectoral representative to
obtain in order to garner 1 seat would require
116% in order that there will be 58 sectoral
representatives [in 20130 based on the number of
legislative districts at present. Also, the 20%
party-list
membership
in
the
House
of
Representatives shall be fully filled up, not just 20,
21, 22, or 23 when the Panganiban Formula was
used.
32-e. Is Dan Fernandez qualified to run
for Congressman of the First District of
Laguna since he is renting an apartment in
Sta. Rosa, Laguna, even though his
residential house is at Pagsanjan, Laguna
which is a part of the 5th district where he
was residing before though he resided in
that rented apartment for more than 1 year
before the 2007 elections?

8
Yes. Ownership of a real property in the place
where one runs for Congressman is not required
by Section 6, Art. VI of the Constitution. (DAN
FERNANDEZ VS. HRET, December 21, 2009)
32-f. If a candidate for the House of
Representatives, actor Richard Gomez, was
disqualified by the COMELEC based on Section 78
of the Omnibus Election Code because he was
not a resident of Ormoc City at least one (1) year
before the May 10, 2010 elections, may he be
substituted by his wife Lucy Torres? Assuming Lucy
wins, may she validly be declared the
representative for said District?
No, a candidate disqualified under Section 78
of the Omnibus Election Code
cannot be
substituted because the Certificate of Candidacy
of of Richard is not valid for lack of the
qualification mandated by the Constitution. A valid
COC is a condition sine qua non for a valid
candidate substitution. Thewre was material
representation in the COC of Richard when he
claimed he is a resident of Ormoc City when he
was not. As such, Richard was not considered a
candidate or there was no candidate to speak of
so there would be no candidate to be substituted.
It is different for a candidate disqualified
under Section 68 of the OEC. He could be
substituted because he has all the qualifications
but was disqualified due to an election offense like
vote-buying, terrorism, etc. (TAGOLINO VS.
HOUSE OF REPRESENTATIVES ELECTORAL
TRIBUNAL AND LUCY TORRES-GOMEZ, March
19, 2013)
33. In case of vacancy in the Senate or
in the House of Representatives under
Section 9 of Article VII, is it automatic
for the COMELEC to hold a special
election?
No, there must be a law passed by Congress
appropriating the funds for the said purpose.
( LOZADA vs. COMELEC, 120 SCRA 337)
34. While a Member of Congress is not
allowed to appear as counsel for any party in
court or before administrative bodies, may he do
so as a stockholder?
No as held in
PUYAT vs. DE GUZMAN,
113 SCRA 31. What could not be done directly
could not likewise be done indirectly. So a
member of Congress who is a stockholder of the
corporation involved in a case is not allowed to appear
under the guise that he is appearing as such, not as
counsel for the corporation.
(Note: Was the Supreme Court correct in
allowing Senator Joker Arroyo to argue before the
Supreme Court as COUNSEL for the Senate of the
Philippines in the cases (Drilon vs. Ermita, NERI vs.
Blue Ribbon Committee, etc.) where the Senate
was a respondent therein despite Section 14, Art VI
which provides that No Senator or Member of the
House of Representatives may personally appear as
counsel before any court of justice?
35. May a court suspend a member of
Congress when Section 16 [3], Article VI appears
to give such exclusive power to each House only
for
disorderly
behavior,
and
with
the
concurrence of 2/3 of all its members, suspend

or expel a Member. A penalty of suspension,


when imposed, shall mot exceed sixty days?
Yes, this was the rulings of the Supreme Court
in the cases of MIRIAM DEFENSOR and REP.
PAREDES VS. SANDIGANBAYAN. RA 3019 applies
to all government officers and employees.
36. In case of conflict between the
entries in a journal of both Houses of Congress
and extraneous evidence like affidavits of
witnesses, which shall prevail?
As held in U.S. vs. PONS, 34 Phil. 729, the
journal prevails over extraneous evidence
like accounts of newspaper journalists and
reporters as to what the proceedings all
about.
37. In case of conflict between the
journal and the enrolled bill, which shall prevail?
In CASCO PHIL. VS. GIMENEZ, 7 SCRA 347,
it was held by the Supreme Court that The
enrolled bill prevails over the journal. If the
enrolled bill provides that it is urea
formaldehyde is the one exempt from tax,
and not urea and formaldehyde which
appears in the journal which was really
approved, the former prevails and only
CURATIVE LEGISLATION COULD CHANGE
THE SAME, NOT JUDICIAL LEGISLATION.
However,
if
the
President
of
the
Philippines, Senate President and the
Speaker of the House of Representatives
withdraw their signatures as a result of an
anomaly surrounding the printing of the
final copy of the bill, then, the journal will
prevail since what is left is no longer
considered an enrolled bill.
(NOTE, however, that the journal
prevails over the enrolled bill on all matters
required to be entered in the journals, like
yeas and nays on the final reading of a bill or
on any question at the request of 1/5 of the
members present. [Justice Isagani Cruz])
38. May the COMELEC continue to decide
a
pending
disqualification
petition
against a candidate for the House of
Representatives after said candidate has
been proclaimed and already discharging
his duties as such?
No more. Only the House of Representatives
Electoral Tribunal (HRET) has the jurisdiction to
do that being the sole judge of all contests
relating
to
the
election,
returns
and
qualifications of said Member in accordance
with Section 17, Art. VI of the Constitution.
[LIMKAICHONG VS. COMELEC, April 1,
2009]
38-a. How about members of the House
of Representative representing the partylist groups?
All
questions
regarding
the
qualifications of members of the different
party-list groups are within the exclusive
jurisdiction
of
the
HRET
after
their
proclamation as such and that the COMELEC
may no longer continue to decide it. (ABAYON

9
& PALPARAN
2010)

VS.

HRET,

February

11,

38-b. May Lesbians, Gays, Bisexuals and


Transgenders marginalized or underrepresented considering that they are
not included in the twelve marginalized
groups enumerated by the Supreme
Court in
ANG BAGONG BAYANI VS.
COMELEC?
Yes because the enumerated sectors
therein, i.e., labor, peasant, fisherfolk, urban poor,
indigenous
cultural
communities,
elderly,
handicapped, women, youth, veterans, overseas
workers, and professionals, is not exclusive.
38-c. May an individual who does not
belong to a particular marginalized group
validly become the nominee of said sector?
Yes provided he must have a track
record of advocacy for their respective sectors.
(ATONG PAGLAUM, INC VS. COMELEC, G.R. No.
203766,
and companion cases, February 26,
2013).
38-d. May national parties qualified to
join the party-list elections?
While the Supreme Court answered the same
in the negative in the cases of Ang Bagong Bayani and
BANAT, they were allowed in ATONG PAGLAUM, INC
VS. COMELEC, G.R. No. 203766, and companion
cases, February 26, 2013.
38-e. May Congress change the existing
membership of the Commission on
Appointments or Electoral Tribunals as a
result of the changes of membership of
the different political parties?
Yes If the changes in the political
party affiliations of the members of Congress
is substantial and at the same time permanent
so as to dramatically increase
the
membership of one party while significantly
reducing
the
other,
the
number
of
representatives of the different parties in the
Commission on Appointments may also be
changed in proportion to their actual
memberships.
[DAZA
VS.
SINGSON,
December 21, 1989] (NOTE: In Cunanan
vs. Tan, the membership of the Senators
was only temporary so as not to result in
the change of membership in the Commission
on Appointments)
38-f. May a political party (LDP) replace
its representative in the House of
Representatives Electoral Commission
who, in a preliminary voting in a protest
case against an LDP Member, voted in
favor of the other party and against the
candidate of his very own party?
While as a rule the different political
parties may change their representatives in
the Electoral Tribunal or Commission on
Appointments, it may not change a Member
who completely heard and participated in a
particular case [and has already indicated his
vote to the members of the tribunal] and
replace him with another who has no
participation therein, except only to vote for a

party-mate who is involved in the protest.


Such would be a travesty of justice. (BONDOC
VS. PINEDA, September 26, 1991)
38-g. May the COMELEC continue to
decide a disqualification case against a
candidate
for
the
House
of
Representatives after the latter has been
proclaimed and taken her oath or shall it
be
the
House
of
Representatives
Electoral Tribunal?
In the case of REGINA ONSIAKO REYES VS.
COMELEC, GR No. 207264, June 25, 2013,
the Supreme Court held that the COMELEC
retains jurisdiction because a 3rd requisite
before the COMELEC loses jurisdiction and that
the HRET takes over jurisdiction, is absent.
This is the assumption of office. Senators and
Congressmen assume office on the 30 th day of
June following their elections. Since the
COMELECs decision was promulgated before
June 30, 2013, then, it still has jurisdiction to
decide the disqualification case.
39. May a committee of Congress cite a
person for contempt of court for refusing to
answer its questions during investigations in aid
of legislation? How long may it imprison such
witness?
As held in
ARNAULT vs. NAZARENO, 87
Phil. 29, A witness who refuses to answer a query by
the Committee may be detained during the term of the
members imposing said penalty but the detention
should not be too long as to violate the witness right
to due process of law.
40. May the President validly prohibit
members of the Cabinet and those of the
executive department from appearing before
any Committee of Congress without her
consent?
It depends. If the appearance is due to the
power of Congress to investigate in aid of legislation
under Section 21, Art. VI, such act of the President is
unconstitutional for it would violate the oversight
powers of Congress and because the appearance of
said executive officers is MANDATORY. It would also
violate the right to information on the part of the
citizens. However, if the invitation to appear is based
on Section 22, Art. VI or during the question hour,
then the President may validly demand that they must
get her consent first because such appearance is
DISCRETIONARY. (SENATE OF THE PHILIPPINES,
represented by SENATE PRESIDENT FRANKLIN
DRILON, ET AL., VS. EXEC. SEC. EDUARDO
ERMITA, ET AL., G.R. No. 16977, April 20, 2006 ,
488 SCRA 1)
40-a. While a Member of the Cabinet
may be compelled to appear before Congress
under Section 21, Art. VI of the Constitution,
may he be compelled to answer questions
regarding his conversations with the President
on matters subject of the investigation/inquiry
in aid of legislation?

10
No if the conversations are covered by the
executive privilege.
40-b. Explain the executive privilege
doctrine.
Distinguish
the
presidential
communications privilege and the deliberative
process
privilege
which
comprise
said
executive privilege. Who are covered by this
rule?
The
Nixon
and
post-Watergate
cases
established the broad contours of the presidential
communications privilege .
In United States v.
Nixon ,
the U.S. Court recognized a great public
interest in preserving the confidentiality of
conversations that take place in the Presidents
performance of his official duties.
It thus
considered
presidential
communications
as
presumptively
privileged.
Apparently,
the
presumption is founded on the Presidents
generalized interest in confidentiality.
The
privilege is said to be necessary to guarantee the
candor of presidential advisors and to provide the
President and
those who assist him with
freedom to explore alternatives in the process
of shaping policies and making decisions and to
do so in a way many would be unwilling to
express except privately.
In In Re: Sealed Case, the U.S. Court of
Appeals delved deeper. It ruled that there are two (2)
kinds of executive privilege; one is the presidential
communications privilege and, the other is the
deliberative process privilege.
The former
pertains to communications, documents or
other
materials
that
reflect
presidential
decision-making and deliberations and that the
President believes should remain confidential.
The
latter
includes
advisory
opinions,
recommendations and deliberations comprising
part of a process by which governmental
decisions and policies are formulated.
Accordingly, they are characterized by
marked distinctions. Presidential communications
privilege applies to decision-making of the
President
while,
the
deliberative
process
privilege, to decision-making of
executive
officials.
The first is rooted in the constitutional
principle of separation of power and the Presidents
unique constitutional role;
the second on
common law privilege. Unlike the deliberative
process
privilege,
the
presidential
communications
privilege applies to documents in their entirety,
and covers final and post-decisional materials as
well as pre-deliberative ones . As a consequence,
congressional or judicial negation of the presidential
communications privilege is always subject to
greater scrutiny than denial of the deliberative
process privilege.
Turning on who are the officials covered by
the presidential communications privilege, In Re:
Sealed Case confines the privilege only to White House
Staff that has operational proximity to direct
presidential decision-making. Thus, the privilege is
meant to encompass only those functions that form
the core of presidential authority, involving what the
court characterized as quintessential and nondelegable Presidential power, such as commanderin-chief power, appointment and removal power, the
power to grant pardons and reprieves, the soleauthority to receive ambassadors and other public
officers, the power to negotiate treaties, etc .

The situation in Judicial Watch, Inc. v.


Department of Justice , tested the In Re: Sealed Case
principles. There, while the presidential decision
involved is the exercise of the Presidents pardon
power, a non-delegable, core-presidential function, the
Deputy Attorney General and the Pardon Attorney were
deemed to be too remote from the President and his
senior White House advisors to be protected. The
Court conceded that functionally those officials were
performing a task directly related to the Presidents
pardon power, but concluded that an organizational
test was more appropriate for confining the potentially
broad sweep that would result from the In Re: Sealed
Cases functional test. The majority concluded that,
the lesser protections of the deliberative process
privilege would suffice. That privilege was, however,
found insufficient to justify the confidentiality of the
4,341 withheld documents.
The above cases, especially, Nixon, In Re
Sealed Case and Judicial Watch, somehow provide the
elements
of
presidential
communications
privilege, to wit:
1)

The protected communication


must
relate
to
a
quintessential
and nondelegable
presidential
power.
The communication must be
authored or solicited and
received by a close advisor
of the President or the
President
himself.
The
judicial test is that an advisor
must be in operational
proximity with the President.
The
presidential
communications privilege
remains a qualified privilege
that may be overcome by a
showing of adequate need,
such that the information
sought
likely
contains
important evidence and by
the unavailability of the
information elsewhere by an
appropriate
investigating
authority .

Simply put, the bases are presidential


communications privilege and executive privilege
on matters relating to diplomacy or foreign
relations.
Using the above elements, we are convinced
that, indeed, the communications elicited by the three
(3) questions are covered by the presidential
communications
privilege.
First,
the
communications relate to a quintessential and nondelegable power of the President, i.e. the power to
enter into an executive agreement with other
countries. This authority of the President to enter into
executive agreements without the concurrence of the
Legislature has traditionally been recognized in
Philippine jurisprudence .
Second,
the
communications are received by a close advisor of
the President. Under the operational proximity test,
petitioner can be considered a close advisor, being a
member of President Arroyos cabinet. And third,
there is no adequate showing of a compelling need
that would justify the limitation of the privilege and of
the unavailability of the information elsewhere by an

11
appropriate investigating authority.
(
N
O
T
E
:
I
n
N
i
x
o
n
,
t
h
e
U
S
S
u
p
r
e
m
e
C
o
u
r
t
h
e
l
d
t
h
a
t
i
n
v
o
c
a
ti
o
n
o
f

e
x
e
c
u
ti
v
e
p
ri
v
il
e
g
e

i
s
u
n
a
v

a
il
i
n
g
if
it
i
n
v
o
l
v
e
s
t
h
e
c
o
m
m
i
s
s
i
o
n
o
f
a
c
ri
m
e
a
n
d
t
h
e
r
e
i
s
a
lr
e
a
d
y
a
p
e
n
d
i
n
g
c
ri
m
i
n
a
l
c
a
s
e
.)
We see no dispute on this. It is settled in
United States v. Nixon , that demonstrated, specific
need for evidence in pending criminal trial
outweighs the Presidents generalized interest in

12
confidentiality.
However, the present cases
distinction with the Nixon case is very evident.
In
Nixon, there is a pending criminal proceeding
where the information is requested and it is the
demands of due process of law and the fair
administration of
criminal justice that the
information be disclosed. This is the reason why the
U.S. Court was quick to limit the scope of its
decision.
It stressed that it is not concerned
here with the balance between the Presidents
generalized interest in confidentiality x x x
and congressional demands for information.
Unlike in Nixon, the information here is elicited, not in
a criminal proceeding, but in a legislative inquiry. In
this regard, Senate v. Ermita stressed that the validity
of the claim of executive privilege depends not only on
the ground invoked but, also, on the procedural
setting or the context in which the claim is made.
Furthermore, in Nixon, the President did not interpose
any claim of need to protect military, diplomatic or
sensitive national security secrets. In the present case,
Executive Secretary Ermita categorically claims
executive privilege on the grounds of presidential
communications privilege in relation to her
executive and policy decision-making process and
diplomatic secrets.
41. May a person validly refuse to honor
an invitation to appear before the Senate Blue
Ribbon Committee in connection with its alleged
investigation in aid of legislation?
Yes. In Bengzon, Jr. vs. Senate Blue
Ribbon Committee, Nov. 20, 1991, it was held that
the power of both houses of Congress to conduct
inquiries in aid of legislation is not, absolute or
unlimited.
"The rights of persons appearing in or
affected by such inquiries shall be respected." It
follows then that the rights of persons under the Bill of
Rights must be respected, including the right to due
process and the right not to be compelled to testify
against one's self. But broad as is this power of
inquiry, it is not unlimited. There is no general
authority to expose the private affairs of individuals
without justification in terms of the functions of
Congress. Nor is the Congress a law enforcement or
trial agency. These are functions of the executive and
judicial departments of government. No inquiry is an
end in itself; it must be related to and in furtherance of
a legitimate task of Congress. Investigations
conducted solely for the personal aggrandizement of
the investigators or to "punish" those investigated are
indefensible. As such, if the person invited is already
an accused before the Sandiganbayan or facing a case
in the Ombudsman in connection with a subject matter
related to the House or Senate inquiry, then he could
validly refuse to attend to said hearing.

therein or to answer the questions of the


members thereof?
No. In NEGROS ORIENTAL II ELECTRIC
COOPERATIVE VS. SANGGUNIANG PANGLUNGSOD OF
DUMAGUETE CITY, G.R. No. 72492, Nov. 5, 1987, 155
SCRA 421, the Supreme Court held that such power
was not delegated by Congress to local government
units.
41-c. May the Senate Committee on
Foreign Affairs conduct an investigation of an
incident involving ranking members of the PNP
that took place in Moscow, Russia?
Yes. It has the authority to investigate on all
matters relating to the relations of the Philippines with
all other nations. (DE LA PAZ VS. SENATE
COMMITTEE ON FOREIGN AFFAIRS, February 13,
2009)
42. What are the bills
exclusively originate from the
Representatives?

that must
House of

Under
Section
24,
Art.
VI,
All
appropriations,
revenue
or
tariff
bills,
bills
authorizing increase of the public debt, bills of local
application,
and
private
bills
shall
originate
exclusively in the House of Representatives, but the
Senate may propose or concur with amendments. (NOTE:
In Tolentino vs. Secretary of Finance, the Supreme Court
held that the E-VAT Law is constitutional even if the same
was the VERSION which came from the Senate, not from the
House of Representatives. This is so because the Senate is
allowed to propose amendments to bills which must
exclusively originate from the House of Representatives.)
43. When is transfer of appropriations
allowed by the Constitution?
Only those covered by Section 25 [5] which
provides that No law shall be passed authorizing any
transfer of appropriations; however, the President, the
President of the Senate, the Speaker of the house of
Representatives, the Chief justice of the Supreme
Court, and the heads of the constitutional commissions
may, by law, be authorized to augment any item in the
general appropriations law for their respective offices
from savings in other items of their respective
appropriations.

41-a. May the PCGG Chairman and


commissioners refuse to attend inquiries in ad
of legislation being done by the Senate because
Executive Order No. 1 provides that they should
not be questioned regarding their activities as
such?

43-a. Is the Disbursement Acceleration


Program
(DAP)
of
the
executive
department under the Department of
Budget and Management constitutional if
it uses: [1]savings from completed
programs;
[2]
funds
intended
for
discontinued or abandoned programs;
and
[3] unpaid appropriatons for
compensation--- to be used for projects
without a law appropriating it for specific
projects or to be given to Members of
Congress for projects identified by them?

No, the provision of Exec. Order No. 1


regarding their privilege not to attend such hearings is
unconstitutional. It violates Section 28, Art. II, The right
to information under Art. III, Section 21, Art. VI and
Section 1, Art. XI or the accountability of public
officers.

It is unconstitutional. It violates Section 25 [5]


and Section 29 [1] of Article VI of the 1987 Constitution
which provides that no money shall be paid out of the
Treasury except in pursuance of an appropriations
made by law. ARAULLO VS. BENIGNO SIMEON C.
AQUINO III, et al., GR No. 209287, July 1, 2014)

41-b. May local legislative bodies validly


cite a person in contempt of court (as what
Congress could do) for refusing to appear

43-b. What is the Disbursement Acceleration


Program (DAP)? Is DAP an appropriation measure?

13
It is a government policy or strategy designed
to stimulate the economy through accelerated
spending. It is not an appropriation measure and as
such, no law was necessary for the adoption and
implementation of the DAP because it is neither a fund
nor an appropriation, but a program or an
administrative system of prioritizing spending and that
the adoption of the DAP was by virtue of the authority
of the President as the Chief Executive to ensure that
laws are faithfully executed. (ARAULLO VS. BENIGNO
SIMEON C. AQUINO III, et al., GR No. 209287, July
1, 2014)
43-c. Are the unreleased appropriations
and withdrawn unobligated allotments under the
DAP considered as SAVINGS ?
No. They are not SAVINGS and therefore, its
use in the DAP violates Section 25 [5] Art. VI of the
Constitution.
43-d. What are the requisites before
appropriated funds may be validly transferred
under Section 25 [5] Art. VI of the Constitution?
The requisites are:
1.

There must be a law authorizing the


President, Senate President, Speaker of
the House of Representatives, Chief
Justice and heads of the Constitutional
Commissions
to
TRANSFER
FUNDS
WITHIN THEIR RESPECTIVE OFFICES;

2.

The funds to be transferred are savings


generated from the appropriations for
their respective offices; and

3.

The purpose of the transfer is to augment


an item in the general appropriations law
for their respective offices. (ARAULLO
VS. BENIGNO SIMEON C. AQUINO III,
et al., GR No. 209287, July 1, 2014)

43-e. Are the unreleased appropriations and


unobligated allotments may be considered savings to
be used for DAP purposes before the end of the fiscal
year?
No.
(ARAULLO VS. BENIGNO
SIMEON C. AQUINO III, et al., GR No.
209287, July 1, 2014)
43-f. What is known as the cross-border
augmentations or cross-border transfers? Is it
allowed by the Constitution?
It is the transfer of savings from one
department to the other like savings in the
executive department crossing its borders
and given to the legislative department under
the guise of augmentation of a deficient item
or items in the latters budget. This is what is
exactly prohibited by Section 25 [5] of Article
VI. (ARAULLO VS. BENIGNO SIMEON C.
AQUINO III, et al., GR No. 209287, July 1,
2014)
44. What is the so-called executive
impoundment?
It means that although an item of
appropriation is not vetoed by the President, he
however refuses for whatever reason, to spend funds

made possible by Congress. It is the failure to spend or


obligate budget authority of any type. Proponents of
impoundment have invoked at least three (3) principal
sources of authority of the President. [1] authority to
impound given to him by Congress, either expressly or
impliedly; [2] the executive power drawn from his
power as Commander-in-chief; and [3] the Faithful
execution clause of the Constitution. Note that in this
case the SC held that the Countryside Development
Fund (CDF) or Pork Barrel of Congressmen and
Senators is CONSTITUTIONAL because the same is set
aside for infrastructure, purchase of ambulances and
computers and other priority projects and activities,
and credit facilities to qualified beneficiaries as
proposed and identified by said Senators and
Congressmen. (PHILCONSA VS. ENRIQUEZ, 235
SCRA 506)
45. May the President refuse to enforce
a law on the ground that in his opinion it is
unconstitutional?
No. Otherwise, he will be violating the
doctrine of separation of powers because by doing so,
he will be arrogating unto himself the power to
interpret the law, not merely to implement it. (L.S.
MOON & CO. VS. HARRISON, 43 Phil.38)
46. The President of the Philippines, by
Administrative Order, mandates the ADOPTION
OF A NATIONAL COMPUTERIZED IDENTIFICATION
REFERENCE SYSTEM and appropriating funds
therefore?Is this within his executive power?
No as held by the Supreme Court in BLAS
OPLE VS. RUBEN TORRES, ET AL., G.R. No. 127685, July
23, 1998, the AO establishes a system of identification
that is all-encompassing in scope, affects the life and
liberty of every Filipino citizens and foreign residents
and therefore, it is supposed to be a law passed by
Congress that implements it, not by an Administrative
Order issued by the President. Administrative Power,
which is supposed to be exercised by the President, is
concerned with the work of applying policies and
enforcing orders as determined by
proper
governmental organs. It enables the President to fix a
uniform standard of administrative efficiency and
check the official conduct of his agents. Prescinding
from the foregoing precepts, AO 308 involves a subject
that is
not appropriate to be covered by an
Administrative Order. An administrative order is an
ordinance issued by the President which relates to
specific aspects in the administrative operation of the
government. It must be in harmony with the law and
should be for the sole purpose of implementing the law
and carrying out the legislative policy. The subject of
AO 308 therefore is beyond the power of the President
to issue and it is a usurpation of legislative power.
47. What is the totality test used by
the Supreme Court in holding that former
President Joseph Estrada resigned as President
on January 20, 2007?
THIS IS THE TOTALITY TEST, THE TOTALITY OF
PRIOR, CONTEMPORANEOUS AND POSTERIOR FACTS
AND CIRCUMSTANTIAL EVIDENCE BEARING MATERIAL
RELEVANCE TO THE ISSUE.
48. Is President Gloria Macapagal Arroyo a
de jure or a de facto President when she took
over President Joseph Estrada in January 2001?
If de jure, how did she succeed? Resignation or
permanent disability of
former President
Estrada?

14
1.
Since both Houses of Congress had
recognized that Arroyo is the President when they
passed Resolution expressing their support to the
administration of Her Excellency Gloria Macapagal
Arroyo, President of the Philippines which was passed
on January 24, 2001; another resolution dated January
24, 2001 expressing full support to the assumption
into office by VP Arroyo as President of the
Philippines; and the Resolution dated February 7,
2001 confirming President Arroyos nomination of
Senator Teopisto Guingona, Jr. as Vice President of the
Philippines, her government is de jure.
49.
May
the
President
makes
appointment to vacancies in the judiciary within
two months immediately before the next
presidential election and up to the end of his
term in order to comply with the requirement
of Sections 4 and 8, Art. VIII for him to fill up
vacancies in the judiciary within 90 days from
the submission of the list of nominees by the
Judicial and Bar Council?
No. Section 15, Article VII applies only to
temporary appointments to executive positions when
continued vacancies therein will prejudice public
service or endanger public safety and not to the
judiciary. (IN RE VALENZUELA & IN RE: JUDGE
VALLARTA. November, 1998)
However, in the case of ARTURO DE
CASTRO VS. JUDICIAL AND BAR COUNCIL, G.R.
No. 191032, March 17, 2010 , a divided Supreme
Court allowed President Arroyo to appoint a new Chief
Justice within the prohibited period by holding that
the prohibition under Section 15, Article VII
does not apply to appointments to fill a vacancy
in the Supreme Court or to other appointments
to the Judiciary.
Note, however, that while nine (9) justices
voted to allow the President to appoint the Chief
Justice during the prohibited period, only five (5)
justices voted to reverse IN RE VALENZUELA & IN
RE: JUDGE VALLARTA. As such, the President is
not allowed to make any other appointments in
the judiciary during said period, except the Chief
Justice. IS THE APPOINTMENT OF THE CHIEF
JUSTICE MADE AS AN EXCEPTION IN SECTION 15,
ART. VII?
50. What appointments made by the
President shall be the subject of confirmation by
the Commission on Appointments?
Only those covered by the 1st sentence of
Section 16, Art. VII which are the heads of the
executive departments, ambassadors, other
public ministers and consuls, or officers of the
armed forces from the rank of colonel or naval
captain, and other officers are vested in him in
this Constitution.
51. May the President make temporary
appointments involving the members of the
Cabinet while Congress in session or not in
session? Distinguish ad interim appointment and
appointment in an acting capacity.
Yes provided the temporary appointments of
cabinet members do not exceed one (1) year. (SEN.
AQUILINO PIMENTEL, et al., vs. EXEC. SECRETARY
EDUARDO ERMITA, et al., 472 SCRA 587)

The temporary appointments are valid.


The power to appoint is essentially
executive in nature and the legislature
may not interfere with the exercise of
this executive power except in those
instances
when
the
Constitution
expressly allows it to interfere. The
essence of an appointment in an acting
capacity is its temporary nature. It is a
stop-gap measure intended to fill an
office for a limited time until the
appointment of a permanent occupant to
the office. In case of vacancy in an office
occupied by an alter ego of the
President, such as the office of a
department secretary, the President
must necessarily appoint an alter ego of
her choice as acting secretary before the
permanent appointee of her choice could
assume office. Congress, through a law
cannot impose on the President the
obligation of automatically appointing
the Undersecretary as her alter ego. He
must be of the Presidents confidence
and provided that the temporary
appointment does not exceed one (1)
year.

There is a need to distinguish ad interim


appointments and appointments in an acting
capacity. While both are effective upon
acceptance, ad interim appointments are
extended only during the recess of Congress,
whereas acting appointments may be
extended any time that there is a vacancy.
Moreover, ad interim appointments are
submitted
to
the
Commission
on
Appointments for confirmation or rejection;
acting appointments are not submitted to the
Commission
on
appointments.
Acting
appointments are a way of temporarily
circumventing the need of confirmation by
the Commission on Appointments.
51-a. May the President appoint a Chief
Justice within the prohibited period under
Section 15, Art. VII of the Constitution?
Yes because the prohibition applies only to the
Executive Department. (ARTURO DE CASTRO VS.
JBC, MARCH 17, 2010 & APRIL 20, 2010 ON THE
MOTION FOR RECONSIDERATION. [Note, however,
that only five justices voted on the issue on whether
the President could appoint justices and judges lower
than the Chief Justice. Therefore, the doctrine in IN RE
VALENZUELA & IN RE VALLARTA, 298 SCRA 408
is still applicable]
51-b. Must the Commissioner of Customs
be subjected to confirmation by the Commission
on Appointments considering the importance of
his position?
No because he does not fall under the 1 st
sentence of Section 16, Art. VII of the Constitution.
(SARMIENTO VS. MISON, 156 SCRA 549)
51-c. Shall the new Bangko Sentral
Governor be required to be confirmed by the
Commission on Appointments as the law
creating it requires?
No. Congress could not add to the list of
officials subject of confirmation by the Commission on
Appointments under the 1st sentence of Section 16,
Art. VII of the Constitution. (TARROSA VS. SINGSON,

15
May 25, 1994; CALDERON VS. CARALE, April 23,
1992). Congress may not add the officials
subject of confirmation by the Commission on
Appointments in Section 16 [First Sentence],
Art. VII of the Constitution.
52-d. May the President validly appoint
the DOTC Assistant Secretary Maria Elena
Bautista as Acting Manager of MARINA which is
under DOTC?
No. The same falls under the prohibition on
multiple positions of officials in the executive
department under Section 13, Art. VII of the
Constitution. (DENNIS FUNA VS. ERMITA & MARIA
ELENA BAUTISTA, February 11, 2010)
52. What is the take care power of the
President of the Philippines?
It is the power of the President under Section
17, Art. VII which provides that The President shall
have control of all the executive departments , bureaus
and offices. He shall ensure that the laws be
faithfully executed (RANDY DAVID VS. ARROYO,
G.R. No. 171396, May 3, 2006).
53. What is the power of control of the
President.
Distinguish
it
from
power
of
supervision.
"Control" has been defined as "the power of
an officer to alter or modify or nullify or set aside what
a subordinate officer had done in the performance of
his duties and to substitute the judgment of the former
for test of the latter." "Supervision" on the other
hand means "overseeing or the power or authority of
an officer to see that subordinate officers perform their
duties. (MONDANO VS. SILVOSA)
54. May the President validly require all
officers and employees under the executive
department to maintain an ID system and have
ID cards?
Yes in accordance with her power of control
under Section 17, Art. VII of the Constitution.
(KILUSANG
MAYO
UNO
VS.
EXECUTIVE
SECRETARY EDUARDO ERMITA, ET AL., April 19,
2006 & June 20, 2006) But not for a national ID
system which includes civilians as held in Ople vs.
Torres, supra.
55. What is the doctrine of qualified
political agency?
It simply means that the President is not
expected to perform in person an the
multifarious
executive
and
administrative functions. The Office of
the Executive Secretary is an auxillary
unit which assists the President. Under
our constitutional set-up, the Executive
Secretary acts for and in behalf of the
President: and by authority of the
President, he has undisputed jurisdiction
to affirm, modify, or even reverse any
order of the Secretary of Natural
Resources
and
other
Cabinet
Secretaries. Where the Executive Secretary
acts "by authority of the President" his
decision is that of the President. (LacsonMagallanes Co., Inc. vs. Pano, 21 SCRA
895).

55.a. What is the power of executive


impoundment?
It means that although an item of
appropriation is not vetoed by the President, he,
however, refuses for whatever reason, to spend
funds made possible by Congress. It is the failure
to spend or obligate budget authority of any type.
Proponents of impoundment have invoked at least
three (3) principal sources of the authority of the
President on this matter. [1] authority to impound
given by Congress, either expressly or impliedly;
[2] the executive power drawn from his power as
the commander-in-chief; and [3] the faithful
execution clause of the Constitution under Section
17, Art. VII of the Constitution. (PHILCONSA VS.
ENRIQUEZ, 235 SCRA 506)
56. What are the differences between the
power of the President to declare martial law
or suspend the privilege of the writ of
habeas corpus under the 1987 Constitution
and the previous Constitutions?
Under the 1987 Philippine Constitution, such
acts of the President may be reviewed not only by
the Supreme Court but also the Congress of the
Philippines. Previously, such would be considered
political question which is beyond the review
powers of the courts. Likewise, there is a definite
period for the said suspension unlike before and
more importantly, the grounds are only invasion
and rebellion WHEN THE PUBLIC SAFETY REQUIRES
IT. The Supreme Court may review, in an
appropriate proceeding filed by any citizen, the
sufficiency of the factual basis of the proclamation
of martial law or suspension of the privilege of the
writ or the extension thereof, and
must
promulgate its decision thereon within 30 days
from its filing.
A state of martial law does not suspend the
operation of the Constitution, nor supplant the
functioning of the civil courts or legislative assemblies,
nor authorize the conferment of jurisdiction on military
courts and agencies over civilians where civil courts
are able to function, nor automatically suspend the
privilege of the writ.
The suspension of the privilege of the writ
shall apply only to persons judicially charged for
rebellion or offenses inherent in or directly connected
with invasion.
During the suspension of the privilege of the
writ, any person thus arrested or detained shall be
judicially charged within 3 days, otherwise, he shall be
released.
57. May the President under the 1987
Constitution validly issue decrees which shall
form part of the laws of the land
after
declaring a state of national emergency but did
not declare martial law. May she direct the takeover of business affected with national interest
by reason of the emergency which she herself
proclaimed?
I n
t h e
c a s e
o f
PROF.
RANDOLF S. DAVID,
et Al
VS. GLORIA
MACAPAGAL-ARROYO,
AS PRESIDENT AND
COMMANDER-IN-CHIEF, et al., G.R. No. 171396,
May 3, 2006, it was held that in declaring a state of
national emergency, President Arroyo did not only rely
on Section 18, Article VII of the Constitution, a
provision calling on the AFP to prevent or suppress

16
lawless violence, invasion or rebellion. She also relied
on Section 17, Article XII, a provision on the States
extraordinary power to take over privately-owned
public utility and businesses affected with public
interest. The Supreme Court ruled that the assailed
PP 1017 is unconstitutional insofar as it grants
President Arroyo the authority to promulgate
decrees. Legislative power is peculiarly within the
province of the Legislature.
Section 1, Article VI
categorically states that [t]he legislative power shall
be vested in the Congress of the Philippines which
shall consist of a Senate and a House of
Representatives. To be sure, neither Martial Law nor a
state of rebellion nor a state of emergency can justify
President Arroyos exercise of legislative power by
issuing decrees.
Likewise, the exercise of emergency powers,
such as the taking over of privately owned public utility
or business affected with public interest, is also
unconstitutional.
This requires a delegation from
Congress which shall enumerate the said businesses
affected with national interest.
57-a. May the President validly declare a
State of National Emergency in the Province of
Maguindanao without a law enacted by Congress
in accordance with Section 23 [2], Art. VI of the
Constitution?
Yes because the calling out the armed forces
is within the Presidents power under the 1 st Section of
Section 18, Art. VII of the Constitution. (ZALDY
AMPATUAN VS. PUNO, June 7, 2011)
57-b. Is former President Joseph Estrada
qualified to run for Mayor of the City of Manila
as a result of his conviction for Plunder with
accessory penalties of civil interdiction during the
period
of
sentence
and
perpetual
absolute
disqualification despite the pardon extended to him
by former President Gloria Arroyo?

Yes because the pardon extended to him was


absolute. The power of the President to extend pardon
could not be limited by Section 40 of the Local
Government Code nor Section 12 of the Omnibus
Election Code. There are only three (3) restrictions on
the pardoning power of the President. These are:

impeachment cases;
cases that have not yet resulted in a final
conviction; and
cases involving violations of election laws,
rules and regulations in which there was no
favorable recommendation coming from the
COMELEC.

-under Section 19, Art. VII of the


Constitution.
(ATTY. ALICIA RISOS-VIDAL VS.
COMMISSION ON ELECXTIONS AND JOSEPH
EJERCITO ESTRADA, GR No. 206666, JANUARY 21,
2015)

review?

58. What are the requisites of judicial

Courts may exercise the power of judicial


review only when the following requisites are present:
first, there must be an actual case or controversy;

second, petitioners have to raise a question of


unconstitutionality; third, the constitutional question
must be raised at the earliest opportunity; and fourth,
the decision of the constitutional question must be
necessary to the determination of the case itself.
59. When may the courts still validly
decide moot and academic cases?
A moot and academic case is one that ceases
to present a justiciable controversy by virtue of
supervening events, so that a declaration thereon
would be of no practical use or value. Generally, courts
decline jurisdiction over such case or dismiss it on
ground of mootness. The moot and academic
principle is not a magical formula that can
automatically dissuade the courts in resolving a case.
Courts will decide cases, otherwise moot and
academic, if:
first, there is a grave violation of the
Constitution (Province of Batangas vs.
Romulo, .R. No. 152774, May 27,
2004, 429 SCRA 736).
second, the exceptional character of
the situation and the paramount public
interest is involved (Lacson vs. Perez, G.R.
No. 147780, May 10, 2001, 357 SCRA
756);
third, when constitutional issue
raised requires formulation of controlling
principles to guide the bench, the bar, and the
public (Province of Batangas vs. Romulo);
and
fourth, the case is capable of
repetition yet evading review (Albaa v.
Commission on
Elections, G.R. No.
163302, July 23, 2004, 435 SCRA 98,
Acop v. Guingona, Jr., G.R. No. 134855,
July 2, 2002, 383 SCRA 577, Sanlakas v.
Executive Secretary,
G.R. No. 159085,
February 3, 2004, 421 SCRA 656. )
60. Define locus standi.
Locus standi is defined as a right of
appearance in a court of justice on a given question.
In private suits, standing is governed by the realparties-in interest rule as contained in Section 2, Rule
3 of the 1997 Rules of Civil Procedure, as amended. It
provides that every action must be prosecuted or
defended in the name of the real party in
interest. Accordingly, the real-party-in interest is
the party who stands to be benefited or injured
by the judgment in the suit or the party entitled
to the avails of the suit. Succinctly put, the
plaintiffs standing is based on his own right to the
relief sought.
61. What are the tests of locus standi in
the Philippines?
The original was: [1] If the act involves the
disbursement of public funds, mere taxpayer has the
capacity to sue and question such act. [2] If it does not
involve disbursement of public funds, only those who
are directly injured by the said law or contract
entered into by the government.

17
Case law in most jurisdictions now allows both
citizen and taxpayer standing in public actions.
The distinction was first laid down in Beauchamp v.
Silk,
where it was held that the plaintiff in a
taxpayers suit is in a different category from the
plaintiff in a citizens suit.
In the former, the
plaintiff is affected by the expenditure of public
funds, while in the latter, he is but the mere
instrument of the public concern
However, to prevent just about any person
from seeking judicial interference in any official policy
or act with which he disagreed with, and thus hinders
the activities of governmental agencies engaged in
public service, the United State Supreme Court laid
down the more stringent direct injury test in Ex
Parte Levitt, later reaffirmed in Tileston v. Ullman. The
same Court ruled that for a private individual to invoke
the judicial power to determine the validity of an
executive or legislative action, he must show that
he has sustained a direct injury as a result of
that action, and it is not sufficient that he has a
general interest common to all members of the
public.
This Court adopted the direct injury test
in our jurisdiction. In People v. Vera, it held that the
person who impugns the validity of a statute must
have a personal and substantial interest in the
case such that he has sustained, or will sustain
direct injury as a result. The Vera doctrine was
upheld in a litany of cases, such as, Custodio v.
President of the Senate, Manila Race Horse Trainers
Association v. De la Fuente, Pascual v. Secretary of
Public Works and Anti-Chinese League of the
Philippines v. Felix.
However,
being
a
mere
procedural
technicality, the requirement of locus standi may be
waived by the Court in the exercise of its discretion.
This was done in the 1949 Emergency Powers
Cases,
Araneta
v.
Dinglasan,
where
the
transcendental
importance
of
the
cases
prompted the Court to act liberally.
Such liberality
was neither a rarity nor accidental.
In Aquino v.
Comelec, this Court resolved to pass upon the issues
raised due to the far-reaching implications of the
petition notwithstanding its categorical statement that
petitioner therein had no personality to file the suit.
Indeed, there is a chain of cases where this liberal
policy has been observed, allowing ordinary citizens,
members of Congress, and civic organizations to
prosecute actions involving the constitutionality or
validity of laws, regulations and rulings.

(2)
Bagong
Alyansang
Makabayan v. Zamora, wherein the
Court
held
that
given
the
transcendental importance of
the issues involved, the Court
may
relax
the
standing
requirements and allow the suit
to prosper despite the lack of
direct injury to the parties
seeking judicial review of the
Visiting Forces Agreement;
(3)
Lim
v.
Executive
Secretary,
while the Court noted
that the petitioners may not file suit
in their capacity as taxpayers absent
a showing that Balikatan 02-01
involves the exercise of Congress
taxing or spending powers, it
reiterated its ruling in Bagong
Alyansang Makabayan v. Zamora,
that in cases of transcendental
importance, the cases must be
settled promptly and definitely
and standing requirements may
be relaxed.
By way of summary, the following rules may
be culled from the cases decided by this Court.
Taxpayers, voters, concerned citizens, and legislators
may be accorded standing to sue, provided that the
following requirements are met:
1

the cases involve constitutional issues;

for taxpayers, there must be a claim


of illegal disbursement of public funds
or
that
the
tax
measure
is
unconstitutional;

for voters, there must be a showing of


obvious interest in the validity of the
election law in question;

for concerned citizens, there must be


a showing that the issues raised are of
transcendental importance which must
be settled early; and

for legislators, there must be a claim


that the official action complained of
infringes upon their prerogatives as
legislators.

Thus, the Court has adopted a rule that even


where the petitioners have failed to show direct injury,
they have been allowed to sue under the principle of
transcendental importance. Pertinent are the
following cases:

Significantly, recent decisions show a certain


toughening in the Courts attitude toward legal
standing.

(1) Chavez v. Public Estates


Authority, where the Court ruled that
the
enforcement
of
the
constitutional
right
to
information and the equitable
diffusion of natural resources
are matters of transcendental
importance which clothe the
petitioner with locus standi;

In Kilosbayan, Inc. v. Morato, the Court ruled


that the status of Kilosbayan as a peoples organization
does not give it the requisite personality to question
the validity of the on-line lottery contract, more so
where it does not raise any issue of constitutionality.
Moreover, it cannot sue as a taxpayer absent any
allegation that public funds are being misused. Nor can
it sue as a concerned citizen as it does not allege any
specific injury it has suffered.

18
In
Telecommunications
and
Broadcast
Attorneys of the Philippines, Inc. v. Comelec, the Court
reiterated the direct injury test with respect to
concerned citizens cases involving constitutional
issues. It held that there must be a showing that the
citizen personally suffered some actual or threatened
injury arising from the alleged illegal official act.

[1] Pardon is granted by the Chief


Executive and as such it is a private act which
must be pleaded and proved by the person
pardoned, because the courts take no notice
thereof; while amnesty by Proclamation of the
Chief Executive with the concurrence of
Congress, and it is a public act of which the
courts should take judicial notice.

In Lacson v. Perez, the Court ruled that one of


the petitioners, Laban ng Demokratikong Pilipino
(LDP), is not a real party-in-interest as it had not
demonstrated any injury to itself or to its leaders,
members or supporters.

[2] Pardon is granted to one after


conviction (of ordinary crimes) ; while amnesty
is granted to classes of persons or communities
who may be guilty of political offenses,
generally before or after the institution of the
criminal prosecution and sometimes after
conviction.

In Sanlakas v. Executive Secretary, the Court


ruled that only the petitioners who are members of
Congress have standing to sue, as they claim that the
Presidents declaration of a state of rebellion is a
usurpation of the emergency powers of
Congress, thus impairing their legislative
powers. As to
petitioners
Sanlakas, Partido
Manggagawa, and Social Justice Society, the Court
declared them to be devoid of standing, equating them
with the LDP in Lacson.
62. What is the take over provision of
the Constitution. May the President validly
exercise the same?
This is Section 17, Article XII , which reads:
Sec. 17. In times of national
emergency, when the public interest
so requires, the State may, during
the
emergency
and
under
reasonable terms prescribed by it,
temporarily take over or direct the
operation of any privately-owned
public utility or business affected
with public interest.
While the President alone can declare a
state of national emergency, however, without
legislation, he has no
power to take over privatelyowned public utility or business affected
with public
interest. The President cannot decide whether
exceptional
circumstances exist warranting the take
over of privately-owned
public utility or business
affected with public interest. Nor can he determine
when such exceptional circumstances have ceased.
Likewise, without legislation, the President has no
power to point out the types of businesses affected
with public interest that should be taken over.
In
short, the President has no absolute authority to
exercise all the powers of the State under Section 17,
Article VII in the absence of an emergency powers act
passed by Congress.
63. What are the limitations of the
Presidents power of executive clemency?
The same is not available in cases of
impeachment as well as violation of election laws,
rules
and
regulations
without
the
favorable
recommendation of the Commission on Elections.
(Section 19, Art. VII and Section 5, Art. IX-C))
64. Distinguish pardon from amnesty.
As
held
in
BARRIOQUINTO
VS.
FERNANDEZ, 82 Phil. 642, the distinctions
are as follows:

[3] Pardon looks forward and relieves


the offender from the consequences of an
offense of which he has been convicted, that is,
it abolished or forgives the punishment, and for
that reason it does ""nor work the restoration of
the rights to hold public office, or the right of
suffrage, unless such rights be expressly
restored by the terms of the pardon," and it "in
no case exempts the culprit from the payment
of the civil indemnity imposed upon him by the
sentence" article 36, Revised Penal Code).
while amnesty looks backward and abolishes
and puts into oblivion the offense itself, it so
overlooks and obliterates the offense with
which he is charged that the person released
by amnesty stands before the law precisely as
though he had committed no offense. (section
10[6], Article VII, Philippine Constitution;
State vs. Blalock, 62 N.C., 242, 247; In re
Briggs, 135 N.C., 118; 47 S.E. 402., 403;
Ex parte Law, 35 GA., 285, 296; State ex
rel AnheuserBusch Brewing Ass'n. vs. Eby,
170 Mo., 497; 71 S.W 52, 61; Burdick vs
United States, N.Y., 35 S. Ct., 267; 271;
236 U.S., 79; 59 Law. ed., 476.)
[4] Pardon is complete with the act of the
President while Amnesty is valid only with the
concurrence of the majority of the members of
all the members of Congress.
65. Is it required for the person
applying for amnesty to admit his guilt before
his amnesty application can be considered?
Yes as held in VERA VS. PEOPLE, 7 SCRA 152.
Before one may validly apply for executive
clemency (pardon or amnesty) he MUST ADMIT
HAVING
COMMITTED
THE
ACTS
WHICH
RESULTED IN HIS IMPRISONMENT. This rule
abandoned the contrary ruling in Barrioquinto
vs. Fernandez.
66. May a public officer, who has been
granted an absolute pardon by the Chief
Executive, entitled to automatic reinstatement
to her former position without need of a New
appointment?
No. As held in MONSANTO VS.
FACTORAN,February, 1989, a pardon
looks to the future. It is not retrospective.
It makes no amends for the past. It
affords no relief for what has been
suffered by the offender. It does not
impose upon the government any
obligation to make reparation for what
has been suffered. "Since the offense
has
been
established
by
judicial

19
proceedings, that which has been done
or suffered while they were in force is
presumed to have been rightfully done
and justly suffered, and no satisfaction
for it can be required." This would
explain
why
petitioner,
though
pardoned, cannot be entitled to
reinstatement,
unless
appointed
again by the appointing authority,
as well as to receive backpay for
lost earnings and benefits.

67.
May the power of executive
clemency applied to administrative cases like
the suspension of a Provincial Governor?
Yes. This was the ruling of the Supreme
Court in Llamas vs. Exec. Sec. Orbos, Oct. 15,
1991. The word conviction in Section 19, Art.
VII of the Constitution
may be used either in a
criminal case or in an administrative case.
68. Is the mere filing of a criminal case
against a recipient of a conditional pardon with
the condition "not again violate any of the penal
laws of the Philippines and this condition be
violated, he will be proceeded against in the
manner prescribed by law" sufficient to revoke
such conditional pardon without first securing
conviction against the grantee?
Yes. As held in TORRES VS. GONZALES,
152 SCRA 272, the determination of whether the
conditions of a convicts pardon had been breached
rests exclusively in the sound judgment of the
President and that such determination would not be
reviewed by the courts. As held in Tesoro vs. Director
of Prisons, in accepting the terms under which the
parole had been granted, Tesoro had in effect agreed
that the Governor-General's determination (rather than
that of the regular courts of law) that he had breached
one of the conditions of his parole by committing
adultery while he was conditionally at liberty, was
binding and conclusive upon him.
69. What are the requisites before the
President or his representatives may
validly contract or guarantee foreign
loans?
Under Section 20, Art. VII, the President may
contract or guarantee foreign loans on behalf of the
Republic of the Philippines subject to the following
conditions:
a. there must be prior concurrence of the
Monetary Board;
b. subject to such limitations as may be
provided for by law.
Further, the Monetary Board shall, within 30
days from the end of every quarter of the calendar
year, submit to the Congress a complete report of its
decisions on applications for loans to be contracted or
guaranteed by the government or government owned
and controlled corporations which would have the
effect of increasing the foreign debt, and containing
other matters as may be provided for by law.
70. What is judicial power?
Judicial power includes the duty of the courts
of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to
determine whether or not there has been a grave

abuse of discretion amounting to lack or in excess of


jurisdiction on the part of any branch or
instrumentality of the government. (Section 1, 2nd
paragraph, Art. VIII of the Constitution)
71. May judicial power be exercised by
the Supreme Court in cases involving the
decisions of the House of Representatives
Electoral Tribunal since Section 16, Art. VI of the
Constitution provides that the HRET is the sole
judge of all contests involving the election,
returns and qualifications of the members of the
House of Representatives?
Yes if there is allegation of grave abuse of
discretion amounting to lack or in excess of jurisdiction
on the part of the HRET (BONDOC VS. HRET & PINEDA)
72. What is a political question?
In ALMARIO VS. ALBA, 127 SCRA 6, it was
defined as a question which deals with the necessity,
expediency and wisdom of a particuar act, the same is
political and not justiciable
In Sanidad vs. Comelec, 73 SCRA 333,
political questions was defined as questions which are
neatly associated with the wisdom, not the legality of a
particular act. Where the vortex of the controversy
refers to the legality or validity of the contested act,
the matter is definitely justiciable or non-political.
In Tanada vs. Cuenco, 103 Phil., political
question was defined as questions to be answered by
the people in their sovereign capacity or in regard to
which full discretionary authority is vested to the
executive or legislative branch of the government.
Or in Gonzales vs. COMELEC, 21 SCRA
774 , when the crux of the problem deals with the
wisdom of an act, it is political).
73. What is the extent of the fiscal
autonomy granted to the judiciary under
the 1987 Constitution?
As provided under
Section 3, At.
VIII, the judiciary shall enjoy fiscal autonomy
and as such appropriations for the judiciary
may not be reduced by the legislature below
the amount appropriated for the previous year
and, after approval, shall be automatically and
regularly released.
74. What are the cases to be decided by
the Supreme Court en banc?
All cases involving the constitutionality of a
treaty, international or executive agreement,
or law, which shall be heard by the Supreme
Court en banc, including those involving the
constitutionality, application, or operation of
presidential decrees, proclamations, orders,
instructions, ordinances, and other regulations,
shall be decided with the concurrence of a
majority of the members who actually took
part in the deliberations on the issues in the
case and voted thereon. Also, no doctrine or
principle of law laid down by the court en banc
or in division may be modified or reversed
except by the court sitting en banc.
Also if two (2) divisions of the
Supreme Court have conflicting decisions, the
same shall be resolved by the Supreme Court

20
en banc. Cases referred to by the division to
the banc involving novel questions of law , the
same shall be decided by the en banc
accepted by the latter.
Finally, dismissal of judges and disbarment of
lawyers are also decided by the Supreme
Court en banc.

question
law
involved.

(3) Assign temporarily judges of


lower
courts
to
other
stations as public interest
may require. Such temporary
assignment shall not exceed
6
months
without
the
consent
of
the
judge
concerned.
(4) Order a change of venue or
place of trial to avoid a
miscarriage of justice.
(5) Promulgate rules concerning
the
protection
and
enforcement
of
constitutional
rights,
pleading , practice , and
procedure in all courts, the
admission to the practice of
law, the Integrated Bar, and
legal
assistance
to
the
underprivileged. Such rules
shall provide a simplified
and inexpensive procedure
for the speedy disposition of
cases, shall be uniform for
all courts of the same grade,
and
shall
not
diminish,
increase
or
modify
substantive rights. Rules of
procedure of special courts
and
quasi-judicial
bodies
shall remain effective unless
disapproved by the Supreme
Court.
(6) Appoint all officials and
employees of the judiciary in
accordance with the civil
service law.

75. What are the powers of the Supreme


Court?
As enumerated in Art. VIII, Section 5, t he
Supreme Court shall have the following
powers:
(1) Exercise original jurisdiction
over
cases
affecting
ambassadors, other public
ministers and consuls, and
over petitions for certiorari,
prohibition, mandamus, quo
warranto,
and
habeas
corpus.
(2) Review,
revise,
reverse,
modify, or affirm on appeal
or certiorari as the law or
the Rules of Court may
provide, final judgments and
orders of lower courts in:
(a) All cases in
which
the
constitutiona
lity
or
validity
of
any
treaty,
international
or executive
agreement,
law,
presidential
decree,
proclamation
,
order,
instruction,
ordinance, or
regulation is
in question;
(b) All
cases
involving the
legality
of
any
tax,
impost,
assessment,
or
toll,
or
any penalty
imposed
in
relation
thereto;
(c) All cases in
which
the
jurisdiction
of any lower
court is in
issue;
(d) All
criminal
cases
in
which
the
penalty
imposed
is
reclusion
perpetua or
higher;
(e) All cases in
which
only
an error or

of
is

76. What are the 3-fold Functions of


Judicial Review?
These are the:
1) legitimizing
function
or
to
declare the law valid and
constitutional;
2) checking function or to declare
the law unconstitutional;
3)
symbolic
or
educational
function or when the supreme
court decide a case even if it is
moot and academic to educate
the lower courts and other
government officials.
77. May inferior courts also exercise the
power of judicial review (declaring a law, treaty,
etc. unconstitutional) in the light of the
requirements of Section 4(2) of Article VIII that
not even any of the Supreme Courts three (3)
divisions, sitting separately could not declare a
law, treaty, etc., unconstitutional?
Yes because the power of judicial review is
just a part of judicial power which is available to all
courts (Section 1, Art. VIII). Likewise, as shown by
Section 5 [2] (a), the decision of lower courts declaring
a law unconstitutional is subject to review by the
Supreme Court. (YNOT VS. IAC, March 20, 1987)
78.
doctrine?

What

is

the

operative

fact

21
It simply means that the declaration of
unconstitutionality of a law, treaty, etc., is prospective.
As such, all acts done in connection with the said law
before its declaration of unconstitutionality shall be
considered legal, valid and binding. It is only the
declaration of unconstitutionality which is the
operative fact which would stop the people from
complying with its provisions. (DE AGBAYANI VS.
PNB, 38 SCRA 429)
78-a. Is the declaration of the DAP as
unconstitutional
covered
by
the
operative fact doctrine?
Yes. Its application to DAP proceeds
from equity and fair play. The consequences
resulting from the DAP and its related
issuances could not be ignored or could no
longer be undone. (ARAULLO VS. BENIGNO
SIMEON C. AQUINO III, et al., GR No.
209287, July 1, 2014). Otherwise, the
executive department and the offices under it
could be required to undo everything they
have implemented in good faith under the
DAP. Thar scenario would be enourmously
burdensome for the government since the
DAP yielded undeniably positive results that
enhanced the economic welfare of the
country. To count the positive results like
public infrastructure, roads, bridges, homes
for the homeless, hospitals, classrooms and
the like may be impossible but not to apply
the operative fact doctrine for the DAP could
literally cause the physical undoing of such
worthy
results by destruction, and would
result in most undesirable wastefulness.
79.
A,
an
employee
of
the
Sandiganbayan, was found guilty of
dishonesty
by
the
Civil
Service
Commission and ordered dismissed from
the government service because it was
shown that another person took the Civil
Service Examination for him that is why
he passed. He was given the opportunity
to answer said charge but failed to do
so. Decide.
The Decision of the Civil Service
Commission is not valid. Only the Supreme
Court has the power remove officials and
employees in the judiciary under its power
enunciated in Section 6, Art. VIII of the
Constitution. (CSC VS. ANDAL, December
16, 2009)
80. What are the qualities of one
aspiring to become a member of the
judiciary aside from the citizenship and
age qualifications?
A member of the judiciary must
be a person of proven competence,
integrity, probity and independence.
81. Under the 1987 Constitution, may
the salaries of the members of the judiciary be
taxed without violating Section 10, Article VIII
which would have the effect of decreasing the
same?
No. This was the ruling in
NITAFAN VS.
COMMISSIONER, 152 SCRA 284 which abandoned
the contrary rulings in the cases of PERFECTO VS.

MEER, 85 Phil. 552 and ENDENCIA VS. DAVID, 93 Phil.


696
81-a.
May
the
Congress
of
the
Philippines be represented by a Member of the
House of Representatives and a member of the
Senate in the Judicial and Bar Council
separately?
No. Under Section 8, Art. VIII of the
Constitution, the Judicial and Bar Council shall have
seven (7) members only and the Congress of the
Philippines is entitled to only one (1) member. As such,
the House of Representatives shall send only one (1)
member in the Judicial and Bar Council. (FRANCISCO
CHAVEZ VS. JUDICIAL AND BAR COUNCIL, July 18,
2012 and April 13, 2013)
82. Up to when are members of the
judiciary entitled to hold on to their positions?
Section 11, Art. VIII provides that the
Members of the Supreme Court and judges of the
lower court shall hold office [1] during good behavior
until they reach the age of 70 years or [2] become
incapacitated to discharge the duties of their office.
The Supreme Court en banc shall have the power to
discipline judges of lower courts, or order their
dismissal by a vote of majority of the members who
actually took part in the deliberations on the issues in
the case and voted thereon.
83. May an RTC Judge be appointed as a
member of the Provincial Peace and Order
Council of the place where he holds office?
No. The members of the Supreme Court
and other courts established by law shall not be
designated to any agency performing quasijudicial or administrative functions. (IN RE: JUDGE
RODOLFO MANZANO, October 5, 1988)
84. Are the different administrative and
quasi-judicial
bodies
(COMELEC,
NLRC,
NAPOLCOM, MILITARY COMMISSIONS) bound by
the requirement of Section 14, Art. VIII 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?
No. It applies only to the courts as
defined or included by Section 1, Art. VIII. (AIR
FRANCE VS. CARRASCOSO, 18 SCRA 155, VDA DE
ESPIRITU VS. CFI, 47 SCRA 354, BUSCAYNO VS.
ENRILE, 102 SCRA 7, MANGCA VS. COMELEC, 112
SCRA 273, VALLADOLID VS. INCIONG, 121 SCRA 205,
NAPOLCOM VS. LOOD, 127 SCRA 75, NUNAL VS. CA,
169 SCRA 356 and Mangelen vs. CA, 215 SCRA 230)
85. What are the periods given to the
different courts to decide cases before them?
Under
Section 15, Art. VIII, all cases or
matters filed after the effectivity of this Constitution
must be decided or resolved within 24 months from
date of submission for the Supreme Court, and unless
reduced by the Supreme Court, 12 months for all lower
collegiate courts, and 3 months for all other lower
courts. A case shall be deemed submitted for decision
or resolution upon the filing of the last pleading, brief
or memorandum required by the Rules of Court or by
the court itself.
Under Section 18, Art. VII, however, a
case questioning the validity of the declaration
of martial law or suspension of the writ of

22
habeas corpus must be decided within 30 days
from the date of filing.
86. Is the requirement under Section 15,
Art. VIII mandatory or merely directory?
Section 15, Art. VIII is mandatory in all courts
except the Supreme Court where said provision is
considered merely directory. This is so because it is
impossible for the Supreme Court to comply with
such provision considering the volume of cases filed
before it. (CORPUS VS. CA 98 SCRA 424 ,
MALACORA VS. CA, 117 SCRA 435, MARCELINO
VS. CRUZ, 121 SCRA 51 and DE ROMA VS. CA,
152 SCRA 205)
87. What are covered by the powers of
the Civil Service Commission?
Under Section 2, Article IX-B of the
Constitution, the civil service embraces all branches,
subdivisions, instrumentalities, and agencies of the
government, including government owned and
controlled corporations WITH ORIGINAL CHARTERS.
88. What are the requirements before
one may be appointed in the civil service?
Exceptions?
Appointments in the CS shall be made only
according to merit and fitness to be determined as far
as practicable, and except as to positions which
are policy determining, primarily confidential or
highly technical, by competitive examination.
89. Define the three (3) exceptions to the
rule that the appointee must be chosen based on merit
and fitness to be determined by competitive
examination?
Policy determining is one charged with
laying down of principal or fundamental
guidelines or rules, such as that head of a
department.
Primarily confidential position is one
denoting not only confidence in the aptitude
of the appointee for the duties of the office
but primarily close intimacy which ensures
freedom
of
intercourse
without
embarrassment or freedom from misgivings
or betrayals of the personal trust on
confidential matters of the state (Example:
Chief Legal Counsel of the PNB, Besa vs. PNB,
33 SCRA 330)
Highly technical position requires the
appointee thereto to possess technical skill or
training in the supreme or superior degree.
89-a. May a government employee under
probationary period entitled to security of tenure?
May he be dismissed without just cause and due
process?
No. The CSC
position that a civil service
employee does not enjoy security of tenure during his
6-month probationary period is contrary to the
Constitution and the Civil Service Law itself. Section 3
(2) Article 13 of the Constitution guarantees the rights
of all workers not just in terms of self-organization,
collective bargaining, peaceful concerted activities,
the right to strike with qualifications, humane
conditions of work and a living wage but also to
security of tenure, and Section 2(3), Article IX-B is
emphatic in saying that, "no officer or employee of

the civil service shall be removed or suspended


except for cause as provided by law."
Consistently, Section
Service Law provides that no
in the Civil Service shall
dismissed except for cause
after due process.

46 (a) of the Civil


officer or employee
be suspended or
as provided by law

Our Constitution, in using the expressions all


workers and no officer or employee, puts no
distinction between a probationary and a permanent or
regular employee which means that both probationary
and permanent employees enjoy security of tenure.
Probationary employees enjoy security of tenure in the
sense that during their probationary employment, they
cannot be dismissed except for cause or for failure to
qualify as regular employees. (CSC vs. Magnaye,
April 23, 2010)
90. Is the position of City Engineer of
Baguio City a highly technical position?
No. The position of City Engineer of Baguio
City is technical but not highly so. (DE LOS SANTOS
VS. MALLARE, 87 Phil. 289)
91. Is there such a thing as next-inrank or seniority rule in filling up vacancies in
the classified civil service?
No. As held in Medenilla vs. CSC, February
19, 1991, there is no need to wait for the deadwoods
to retire before one may be promoted to fill-up a
vacancy as a result of the presence of other
employees with longer years of service or next-inrank. What is important is that the appointee meets
all the qualifications for the said position.
92. What is the extent of the powers of
the CSC in appointment cases?
It has only the power to approve the
appointment if the appointee meets all the
qualifications and the power to deny the appointment
if the appointee does not meet the qualifications. IT
DOES NOT HAVE THE POWER TO SUBSTITUTE THE
APPOINTEE CHOSEN BY THE APPOINTING AUTHORITY
WITH ANOTHER WHICH IT BELIEVES TO BE MORE
QUALIFIED. (BARROZO VS. CSC & VALENTINO
JULIAN)
93. Is the position of City or Provincial
Legal Officer a primarily confidential position?
Yes, as held in CADIENTE VS. SANTOS, 142
SCRA 280, the Provincial Legal Officer is a
primarily confidential office, but not his
assistant. The same was reiterated in SAMSON
VS. CA, 145 SCRA where it was held that The City
Legal officer is a primarily confidential officer.
94. May gov't. employees form unions
for purposes of collective bargaining and to
strike against the government?
As held in ALLIANCE OF GOVT. WORKERS VS.
MOLE, 124 SCRA and Executive Order No. 180 , June
1, 1987, government employees may form unions but
not authorized to strike or demand for collective
bargaining
agreement
with
the
government.
authorizing govt. employees to form unions.

23
95. May government employees be
removed without cause as a result of a
government reorganization?
No. This is clear from RA 6656, June 10, 1988 ,
which is An act to protect the security of tenure of civil
service officers and employees in the implementation
of government reorganization. There must be full
compliance of the due process requirement. It must be
based on just cause and with due process.( DARIO
VS. MISON, August 8, 1989 , FLOREZA VS.
ONGPIN, February 26, 1990 , MENDOZA VS.
QUISUMBING, June 4, 1990,
DOTC vs. CSC,
October 3, 1991, Romualdez vs. CSC, August 12,
1993 and Torio vs. CSC, 209 SCRA 677)
96. May a person be appointed in a
temporary capacity as a Commissioner of the
Commission on Elections?
No, Section 1, Art. IX-C provides that In no
case shall any member be appointed or
designated in a temporary or acting capacity.
(Brillantes vs. Yorac, Dec. 18, 1991)
97. What are the more important powers
of the COMELEC?
Under Section 2, Art. IX-C, its powers are
to enforce and administer all laws relative to the
conduct of election, plebiscite, initiative, referendum
and recall.original jurisdiction over all contests
relating to the elections, returns, and qualifications of
all elective regional, provincial and city officials and
appellate jurisdiction over all contests involving
elective municipal officials decided by courts of
general jurisdiction and elective barangay officials
decided by trial courts of limited jurisdiction. Also, it
has the power to:
a.
b.
c.
d.

Deputize law enforcement agencies,


including the AFP..
Register political parties, except
religious groups
File complaints for violation of
election laws
Regulate
the
enjoyment
or
utilization of all franchises for the
operation of transportation and
other public utilities, media of
communication..

98. Which court has jurisdiction over


election cases involving municipal and barangay
officials?
Election cases involving municipal official
shall be filed before the RTC whose decision may be
appealed to the COMELEC. Those involving barangay
officials shall be filed with the MTC whose decision is
likewise subject to appeal to the COMELEC whose
decision in both instances is final and not appealable.
99. Where must electionprotest cases
involving city and provincial officials be filed?
It must be filed with the COMELEC, not with
the courts.
99-a. May the COMELEC EN BANC decide
on Appeal the Decision of RTC Agoo, La Union,
regarding
the
election
protest
involving
candidates for Municipal mayor because the
Division where the appeal was raffled could not

decide it due to the inhibition of its members


resulting in no quorum therein?
No. The COMELEC en banc could only decide
Motions for Reconsideration from a Decision of a
Division of the COMELEC.(SANDRA ERIGUEL VS.
COMELEC, February 26, 2010)
100. Does the President have discretion
on the release of the Internal Revenue Allotment
(IRA) for the Local Government Service
Equalization Fund (LGSEF) and may she validly
impose conditions for the release thereof?
No, local governments have fiscal autonomy
under Art. X of the 1987 Constitution. As held by the
Supreme Court in the case of PROVINCE OF
BATANGAS VS. HON. ALBERTO ROMULO, ET AL.,
May 27, 2004, automatic release of funds of Local
Government Units, particularly the IRA, is mandated
with no conditions imposed for its release. To allow the
President to impose conditions for the release of the
IRA amounts to control to local government units when
the Presidents power over local government units is
confined to general supervision, not power of control
as enunciated in Drilon vs. Lim, 235 SCRA 135.
100-A.
May
the
Secretary
of
Environment and Natural Resources validly
reverse and set aside the small-scale mining
permit issued by a Provincial Governor without
violating Section 4, Art. X of the Constitution
which provides that the President shall have
general supervision only, not control, over local
governments?
Yes. Paragraph 1 of Section 2, Article XII
(National Economy and Patrimony) of the
Constitution
provides that [t]he exploration,
development and utilization of natural resources shall
be under the full control and supervision of the State .
Moreover, paragraph 3 of Section 2, Article XII of
the Constitution provides that [t]he Congress
may, by law, allow small-scale utilization of
natural resources by Filipino citizens x x x.
Pursuant to Section 2, Article XII of the Constitution,
R.A. No. 7076 or the People's Small-Scale Mining Act of
1991, was enacted, establishing under Section 4
thereof a People's Small-Scale Mining Program to be
implemented by the DENR Secretary in coordination
with other concerned government agencies. (LEAGUE
OF
PROVINCES
OF
THE
PHILIPPINES vs.
DEPARTMENT OF ENVIRONMENT and NATURAL
RESOURCES and HON. ANGELO T. REYES, in his
capacity as Secretary of DENR, GR. No. 175368,
APRIL 11, 2013)
101. What are the requirements for a
valid change of residence for purposes of the
requirement on residence under the Local
Government Code?
In the case of DUMPIT-MICHELENA VS.
COMELEC, 475 SCRA 290, it was held that to validly
effect a change of residence, there must be animus
manendi coupled with animus non revertendi.
The intent to remain in the new domicile of choice
must be for an indefinite period of time,
must be
voluntary and the residence at the
new domicile
must be actual.
102. Is the 3-term limit of elected local
officials applicable to a term acquired through
succession?

24
No, the 3-term limit applies only if the
official was DULY ELECTED to the said position
for three (3) consecutive terms, not by
succession. (BENJAMIN BORJA VS. COMELEC, and
JOSE T. CAPCO, JR., G.R. No. 133495, September
3, 1998, 295 SCRA 157)
102-a. Montebon was elected Municipal
Councilor of Tuburan, Cebu during the 1998,
2001 and 2004 elections. He was number
councilor in the election of 2004. In 2005, the
Vice Mayor died and he took over the said
position by way of succession in accordance with
the Local Government Code. May he validly run
again for Municipal Councilor during the May,
2007 elections?
Yes,
because
there
was
INVOLUNTARY RENUNCIATION of his 3 rd terms. It was
not voluntary which could have resulted in the
counting of his election in 2004 as his 3 rd term. He was
forced by law to vacate his position as Municipal
Councilor. (MONTEBON VS. COMELEC,
April 8,
2008)
102-b. Nicasio Bolos, Jr. was elected
Barangay Captain of Barangay Biking, Dauis,
Bohol during the 1994, 1997 and 2002 Barangay
elections. Without having completed his 3 rd
term, he ran for Municipal Councilor of Dauis,
Bohol during the 2004 National and Local
Elections and won. His term ended on June 30,
2007. Is he qualified to run for Barangay Captain
of his barangay during the barangay elections of
October, 2007?
No more because he was elected to
three consecutive terms. His non-completion of his 3 rd
term WAS VOLUNTARY when her run for Municipal
Councilor. (BOLOS, JR. VS. COMELEC, March 17,
2009)
102-c. Hagedorn was elected and served
for three (3) consecutive terms as Mayor of
Puerto Princesa City but did not run during his
supposed 4th term. However, after just a year in
office of his successor, a recall election was held.
May Hagedorn run in the recall elections without
violating the 3-consecutive rule provision of the
Constitution?
Yes. An elective official, who has served for
three consecutive terms and who did not seek the
elective position for what could be his fourth term, but
later won in a recall election, had an interruption in the
continuity of the officials service. For, he had become
in the interim, i.e., from the end of the 3rd term up to
the recall election, a private citizen for more than 1
year. (Adormeo vs. COMELEC, February 4, 2002
and Socrates
vs.
COMELEC
and Edward
Hagedorn, , November 12, 2002).
102-D. For four (4) successive regular
elections, namely, the 2001, 2004, 2007 and
2010 national and local elections, Abundo vied
for the position of municipal mayor of Viga,
Catanduanes. In both the 2001 and 2007 runs,
he emerged and was proclaimed as the winning
mayoralty candidate and fully
served the
corresponding terms as mayor. In the 2004
elections, however, the Viga municipal board of
canvassers initially proclaimed as winner one
Jose Torres (Torres), who, in due time,
performed the functions of the office of mayor.
Abundo
protested
Torres
election
and
proclamation. Abundo was eventually declared

the winner of the 2004 mayoralty electoral


contest, paving the way for his assumption of
office starting May 9, 2006 until the end of the
2004-2007 term on June 30, 2007, or for a period
of a little over one year and one month. May he
validly run for the same position in the May,
2010 elections?
Yes. He has not served 3-consecutive
terms. The consecutiveness of what otherwise would
have been Abundos three successive, continuous
mayorship was effectively broken during the 20042007 term when he was initially deprived of title to,
and was veritably disallowed to serve and occupy, an
office to which he, after due proceedings, was
eventually declared to have been the rightful choice of
the electorate.
The three-term limit rule for elective local
officials, a disqualification rule, is found in Section 8,
Article X of the 1987 Constitution, which provides:
Sec. 8. The term of office of
elective
local
officials,
except
barangay officials, which shall be
determined by law, shall be three
years and no such official shall
serve for more than three
consecutive terms.
Voluntary renunciation of
the office for any length of time shall
not be considered as an interruption
in the continuity of his service for the
fullterm for which he was elected.
(Emphasis supplied.)
To constitute a disqualification to run for an
elective local office pursuant to the aforequoted
constitutional and statutory provisions, the following
requisites must concur.
(1) that the official concerned has
been elected for three
consecutive
terms in the same local government
post; and
(2) that he has fully served three
consecutive terms. (MAYOR
ABELARDO ABUNDO., SR. VS.
COMELEC & ERNESTO VEGA, G.R.
No. 201716, JANUARY 08, 2013)
102-e. He was elected for 3-consecutive terms as
Municipal Mayor of Digos, Davao del Sur. Her
served 9 years as such. Before the end of his 3 rd
term, Digos was converted into a component
city. May he run again for City Mayor?
No. The abolition of an elective local
office due to the conversion of a municipality to a city
does not, by itself, work to interrupt the incumbent
officials continuity of service. He is barred by the 3consecutive rule. (Latasa vs. COMELEC, December
10, 2003).
102-f. He was elected for 3-consecutive
terms but was the subject of a preventive
suspension by the Ombudsman for several
months during one of his terms. Is he qualified
for a 4th term?
No. Preventive suspension is not a terminterrupting event as the elective officers continued

25
stay and entitlement to the office remain unaffected
during the period of suspension, although he is barred
from exercising the functions of his office during this
period (Aldovino, Jr. vs. COMELEC, December 23,
2009).
102-g. A candidate for mayor was
elected to 3-consecutive terms. In one of his
terms 3 terms, however, he was proclaimed
winner but he was ousted from office due to an
election protest several months before the end
of his term. May he run again for a supposed
4th term?
Yes. When a candidate is proclaimed as
winner for an elective position and assumes office, his
term is interrupted when he loses in an election protest
and is ousted from office, thus disenabling him from
serving what would otherwise be the unexpired portion
of his term of office had the protest been dismissed.
The break or interruption need not be for a full term of
three years or for the major part of the 3-year term; an
interruption for any length of time, provided the cause
is involuntary, is sufficient to break the continuity of
service. (Lonzanida vs. COMELEC, 311 SCRA 602
and Dizon vs. COMELEC )

No. In the case of IN RE: REQUEST OF THE


PHILIPPINE
CENTER
FOR
INVESTIGATIVE
JOURNALISM (PCIJ( FOR THE 2008 STATEMENT OF
ASSETS AND LIABILITIES AND NET WORTH
(SALN) AND PERSONAL DATA SHEETS OF THE
SUPREME COURT AND COURT OF APPEALS
JUSTICES, A.M. No. 0908-07-CA, June 13, 2012,
the Supreme Court held that they could be given to
requesting parties
subject to the limitations and
prohibitions
provided
in
R.A.
No. 6713,
its
implementing rules and regulations, and the following
guidelines:

1.

All requests shall be filed with


the Office of the Clerk of Court
of the Supreme Court, the Court
of Appeals, the Sandiganbayan,
the Court of Tax Appeals; for the
lower courts, with the Office of
the Court Administrator; and for
attached agencies, with their
respective heads of offices.

2.

Requests shall cover only copies


of the latest SALN, PDS and CV
of the members, officials and
employees of the Judiciary, and
may cover only previous records
if so specifically requested and
considered
as
justified,
as
determined by the officials
mentioned in par. 1 above,
under the terms of these
guidelines and the Implementing
Rules and Regulations of R.A. No.
6713.

3.

In the case of requests for


copies of SALN of the Justices of
the Supreme Court, the Court of
Appeals, the Sandiganbayan and
the Court of Tax Appeals, the
authority to disclose shall be
made by the Court En Banc.

4.

Every request shall explain the


requesting
partys
specific
purpose and their individual
interests sought to be served;
shall state the commitment that
the request shall only be for the
stated purpose; and shall be
submitted
in
a
duly
accomplished
request
form
secured
from
the
SC
website. The
use
of
the
information secured shall only
be for the stated purpose.

5.

In the case of requesting


individuals other than members
of the media, their interests
should go beyond pure or mere
curiosity.

6.

In the case of the members of


the media, the request shall
additionally be supported by
proof under oath of their media
affiliation and by a similar
certification of the accreditation
of their respective organizations

102-h. Mayor Morales was elected for 3


consecutive terms and had FULLY SERVED said 3
terms. However, in one of said terms,
his
opponent protested and was declared the real
winner, not Morales. Unfortunately, said decision
removing Morales from office became final only
after he had fully served the same. May he run
again for a 4th term?
No more. The case of Lonzanida is
not applicable because he was not able to serve the
full term and his opponent took over the rest of one of
his terms thus disenabling him to full serve 3
consecutive terms. When an official is defeated in an
election protest and said decision becomes final after
said official had served the full term for said office,
then his loss in the election contest does not constitute
an interruption since he has managed to serve the
term from start to finish. His full service, despite the
defeat, should be counted in the application of term
limits because the nullification of his proclamation
came after the expiration of the term (Ong vs.
COMELEC, January 23, 2006
and Rivera vs.
COMELEC & MARINO BOKING MORALES, May
9, 2008).
103. In the creation of a new province,
city, municipality or barangay or when it will be
divided, merged or abolished, or its boundary
substantially altered, who shall vote in the
plebiscite to be conducted?
All the residents of the political units affected,
i.e., former and new local government unit to be
formed, must participate in the plebiscite. (TAN VS.
COMELEC, 142 SCRA 727 and Padilla vs.
COMELEC, 214 SCRA 735
Please take note of the contrary rulings in
PAREDES VS. EXECUTIVE SECRETARY, 128 SCRA 6
and LOPEZ VS. METRO MANILA COMMISSION,
136 SCRA 633)
104. Are the statement of assets and
liabilities and , Personal Data Sheet of Justices
and Judges confidential and shall not be
released to the public?

26
as
legitimate
practitioners.
7.

media

different dates but simultaneously tried against the


said impeachable officer, there is no prohibition to
Section 3 [5] of Art. XI. (GUTIERREZ VS. HOUSE OF
REPRESENTATIVES COMMITTEE ON JUSTICE, ET
AL., February 15, 2011)

The requesting party, whether


as individuals or as members of
the media, must have no
derogatory record of having
misused
any
requested
information previously furnished
to them.

107. Who investigates and prosecutes


public officials for crimes committed in the
performance of their official duties? Exception

The requesting parties shall complete their


requests in accordance with these guidelines. The
custodians of these documents (the respective Clerks
of Court of the Supreme Court, Court of Appeals,
Sandiganbayan, and Court of Tax Appeals for the
Justices; and the Court Administrator for the Judges of
various trial courts) shall preliminarily determine if the
requests are not covered by the limitations and
prohibitions provided in R.A. No. 6713 and its
implementing rules and regulations, and in accordance
with the aforecited guidelines. Thereafter, the Clerk of
Court shall refer the matter pertaining to Justices to
the Court En Banc for final determination.
This is in accordance with the constitutional
provision on public accountability and transparency
under Section 1, Art. XI and Section 7, Art. III or the
right to information on matters of public concern as
well as access to official records

It is the Office of the Ombudsman and the


Office of the Special Prosecutor except if the offense
is in violation of election laws, rules and
regulations wherein only the COMELEC has the
power to investigate and to file the appropriate
information in court. (Corpuz vs. Tanodbayan, 149
SCRA 281)
108. What is covered by the academic
freedom provision of the 1987 Constitution?
It covers not only academic freedom on the
part of the school but also those of the teachers,
professors and the students because the provision
states that Academic freedom shall be enjoyed in all
institutions of higher learning while under the 1973
Constitution, only institutions of higher learning enjoy
academic freedom because the provision then states
that all institutions of higher learning shall
enjoy academic freedom (Art. XV, Section 8 [1],
1973 Constitution.
109. What is the extent of academic
freedom on the part of schools?

104-a.
impeachment?

What

are

the

grounds

for

Only for
Culpable violation of the
constitution, treason, bribery, graft and corruption,
other high crimes, or betrayal of public trust.
105. What is the extent of a judgment in
impeachment cases?
Judgment in cases of impeachment shall not
extend further than removal from office and
disqualification to hold any other office under the
Republic of the Philippines but shall nevertheless be
liable to prosecution, trial and punishment according to
law.
106. When is an impeachment complaint
deemed initiated to bar another complaint
within a period of one year?
As held in FRANCISCO VS. SPEAKER JOSE
DE VENECIA, ET AL, 415 SCRA 44, November 10,
2003, an impeachment complaint deemed initiated
to be a bar to the filing of another complaint within a
1-year period upon its [a] filing; and [b] COUPLED
WITH CONGRESS TAKING INITIAL ACTION OF SAID
COMPLAINT.
107. Does the prohibition under Section
3 [5] of Art. XI applies when the 1 st impeachment
complaint was filed on July 22, 2010 and the 2 nd
on July 27, 2010 against the same impeachable
officer though both complaints were referred to
the appropriate committee on the same day?
No. What is prohibited is having more than
one impeachment proceedings within a period of one
(1) year. Even if there are several cases filed on

It includes the power to determine:


a.
b.
c.
d.

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], GARCIA VS. FACULTY
ADMISSION, 68 SCRA 277).

110. Does academic freedom on the part


of the school carries with it the power to revoke
a degree or honor it has bestowed to its
students?
Yes. As held in UP BOARD OF REGENTS VS.
CA, August 31, 1999, academic Freedom
includes the power of a University to REVOKE
a degree or honor it has conferred to a
student after it was found out that the
students graduation was obtained through
fraud. Academic freedom is given a wide
sphere of authority. If an institution of higher
learning can decide on who can and cannot
study in it, it certainly can also determine on
whom it can confer the honor and distinction
of being its graduates.
111. May a school punish its students for
illegal acts committed outside the school
premises and beyond school hours but within
the semester where they are enrolled?
Yes because they still carry the name of the
school and their actuations affect the reputation of the
school. (ANGELES VS. SISON, 112 SCRA 26) This
rule was reiterated in the cased of DE LA SALLE

27
UNIVERSITY VS. CA (2008) where a rumble between
members of two fraternities took place outside the
school campus but the students involved were
EXPELLED by the school. The Supreme Court, however,
while conceding the power of the school over its
students held that the penalty of expulsion is too harsh
a penalty. It should be EXCLUSION, meaning, they are
not allowed to enroll at the De La Salle but they should
be given transfer credentials so that they may enroll in
another school.
111-a. Are students entitled to cross-examine
the witnesses against them in an administrative case
to satisfy their right to due process?
No. What is important is that they were given
the opportunity to be heard. DE LA SALLE
UNIVERSITY VS. CA (December, 2008).
112. What are the underlying principles
behind the constitutional proscription that the
State may not be sued without its consent?
By reason of public policy (if every citizen is
allowed to sue the government, it will be distracted
from performing its functions to serve the people and
it will be left just answering cases in court), by reason
of sovereignty (the people shall not be allowed to sue
the very entity that gives it said right;) and by reason
of consent (when the people ratified the Constitution
which includes the provision that the State cannot be
sued without its consent, it has consented or waived
said right to sue).
113. How may
consent to be sued?

the

State

gives

its

Expressly when there is a law allowing it and


impliedly when it enters into a contract with an
individual because in the latter, it descended to the
level of an individual making it susceptible to
counterclaims or suits.
114. May the government be sued in the
exercise of its governmental functions?
Yes if the government agency has a charter
which allows it to be sued.
(RAYO VS. CFI OF
BULACAN, 110 SCRA 456). Also, the government is
not allowed to invoke its immunity from suit if by doing
so, it will be causing an injustice to its citizens.
(MINISTERIO VS. CFI of Cebu, 40 SCRA and SANTIAGO
VS. REPUBLIC, 87 SCRA 294)
115. Is the US Government also immune
from suit in the Philippines in connection with
the exercise of its governmental functions?
Yes. This was the ruling in U.S. VS. RUIZ, 136
SCRA where it was held that even if there is a contract
entered into by the US Government but the same
involves its jusre imperii functions (governmental
functions, it cannot be sued. It is only when the
contract involves its jus gestiones or business or
proprietary functions that it may be sued.

by the local government in connection with its


town fiesta?
Yes,
a town fiesta is a business or proprietary
function, not governmental, since no law requires any
town, city, province or barangay to hold an annual
fiesta. (TORIO VS. FONTANILLA, 85 SCRA 599)
118. May a local government validly
invoke state immunity from suit in a case where
there is a contract entered into with a private
corporation for the delivery of trucks to the said
municipality? May the court trying the same
validly issue a writ of preliminary attachment
against
the
municipality?
The municipality may not validly invoke its
immunity from suit in a case where it entered into a
contract with a private corporation since it is deemed
to have waived state immunity from suit. However,
unlike in cases of ordinary defendants, the Trial Court
may not validly issue a writ of preliminary attachment
against the properties of the municipality even if the
grounds under Section 1, Rule 57 of the 1997 Rules of
Civil Procedure are present. Suability is different from
liability. (MUNICIPALITY OF HAGONOY, BULACAN
VS. JUDGE DUMDUM, JR., RTC 7, CEBU CITY,
March 22, 2010)
119. May the government still be held
liable to a private individual if the contract it
entered into is void but the other party had
already complied with his obligations under said
agreement?
Yes, because the government shall not enrich
itself at the expense of its citizens. (DEPARTMENT OF
HEALTH VS. C.V. CANCHELA, et al., 475 SCRA
218) Also, the said immunity from suit defense is not
applicable if to do so would cause an injustice to a
citizen (MINISTERIO VS. CFI OF CEBU, 40 SCRA) It
does not also apply if it was the government which
violated its contract with its citizen (SANTIAGO VS.
REPUBLIC, 87 SCRA 294)
PART II
CONSTITUTIONAL
LAW
1.

Define police power.

It is the power vested in the legislature by the


Constitution to make, ordain, establish all manner of
wholesome and reasonable laws for the good and
welfare of the State and its people. (ERMITA MALATE
HOTEL VS. CITY MAYOR, July 31, 1967)
2.

What are the basic purposes/aspects


police power:
a.

to promote the general welfare, comfort


and
convenience
of
the
people;
(ASSOCIATION
OF
SMALL
LANDOWNERS VS. SECRETARY, 175
SCRA 343; US VS. TORIBIO, 15 Phil.
85

b.

to promote and preserve public health;


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

116. Are local governments also entitled


to invoke immunity from suit?
Yes.
117. May a municipality be held liable
for damages as a result of the death of a person
arising from the collapse of a stage constructed

of

28
c.

d.
e.

f.

to promote and protect public safety;


(AGUSTIN VS. EDU, 88 SCRA 195;
TAXICAB OPERATORS VS. JUINIO, 119
SCRA 897 )
to maintain and safeguard peace and
order; (GUAZON VS. DE VILLA)
to protect public morals; (DE LA CRUZ
VS. PARAS, 123 SCRA 569; ERMITA
MALATE HOTEL VS. CITY MAYOR, July
31, 1967; JMM PROMOTIONS VS. CA,
260
SCRA
319;
VELASCO
VS.
VILLEGAS, February 13, 1983)
to promote the economic security of the
people. (ICHONG VS. HERNANDEZ,
101 Phil. 11155)

2-a. May an Ordinance of the City of Manila


validly require people/couples checking in the
different motels in the city to [1] register at the
motels desk facing a public street; and [2] show
their identification card, etc.?
A. Yes. It is a valid exercise of police power to
promote public morals, i.e., curb prostitution or illicit
relationships. ERMITA MALATE HOTEL VS. CITY
MAYOR, July 31, 1967)

2-b. May the City of Manila validly prohibit the


operation of
night clubs, sauna parlors,
massage parlors, karaoke bars, beerhouses, and
similar establishments in the Ermita-Malate Area
and gives the existing establishments three (3)
months to transfer to any place outside said
area under pain of imprisonment of up to 1 year
and fine of P5,000.00 or change the nature of
their business to gift shops, restaurants, etc. ?
A. The Ordinance is unconstitutional. It
violates the due process clause by depriving the
owners of said establishments of their legitimate
businesses. It likewise violates the equal protection
clause. There is no logic in allowing said
establishments in other parts of the City of Manila but
not in the Ermita-Malate area. Finally, even assuming
that the said Ordinance is intended to promote public
morals, the means employed is constitutionally infirm
and not a valid exercise of police power. (CITY OF
MANILA, represented by Mayor Alfredo Lim VS.
JUDGE PERFECTO LAGUIO, JR. and MALATE
TOURIST DEVELOPMENT CORPORATION, G.R. No.
118127, April 12, 2008)

4. What are the tests for a valid exercise


of police power
a.

b.

2-c. May the City of Manila validly prohibit


hotels and motels, etc., at the Ermita-Malate
area, to offer short time admission therein?
A. The Ordinance is unconstitutional and is
not a valid exercise of police power. There is nothing
immoral in staying in a motel or hotel for a period of
three (3) hours only because a persons stay therein
could be for purposes other than having sex or using
illegal drugs. Further, there is nothing that would
prevent people engaged in illicit relationships to check
in in said motels by paying 12 hours or more though
they will just stay there for 3 hours. (WHITE LIGHT
CORPORATION VS. CITY OF MANILA, represented
by MAYOR ALFREDO LIM, G.R. No. 122846,
January 20, 2009.)
3. Distinguish police
eminent domain.

power

with

power

of

The distinctions are:


1

The power of eminent


domain is the inherent right

of the State to condemn or


to take private property for
public use upon payment of
just compensation while
police power is the power of
the state to promote public
welfare by restraining and
regulating the use of liberty
and
property
without
compensation;
In the exercise of police
power, enjoyment of a
property
is
restricted
because the continued use
thereof would be injurious
to public welfare. In such
case,
there
is
no
compensable
taking
provided
none
of
the
property
interests
is
appropriated for the use or
for the benefit of the public.
Otherwise, there should be
compensable taking if it
would result to public use.
Properties
condemned
under police power are
usually noxious or intended
for noxious purpose; hence ,
no compensation shall be
paid.
Likewise,
in
the
exercise of police power,
property rights of private
individuals are subjected to
restraints and burdens in
order to secure the general
comfort,
health
and
prosperity of the state.
(DIDIPIO EARTH SAVERS
MULTI
PURPOSE
ASSOCIATION
VS.
DENR
SEC. ELISEA GOZU, ET AL.,
485 SCRA 586)

the interests of the public, not


mere particular class, require
the exercise of police power;
(LAWFUL SUBJECT)
the
means
employed
is
reasonably necessary for the
accomplishment of the purpose
and not unduly oppressive to
individuals. (LAWFUL MEANS).
In short, the end does not justify
the means.

5. Define due process.


Due process is a law which
hears before it condemns, which
proceeds upon inquiry and renders
judgment only after trial (Per Daniel
Webster
in
the
DARTMOUTH
COLLEGE CASE)
6. What are the Kinds of Due Process?
a.

substantive due process---requires the


intrinsic validity of the law in interfering
with the rights of the person to life,
liberty or property. In short, it is to
determine whether it has a valid
governmental objective like for the

29
b.

interest of the public as against mere


particular class.
Procedural due process---one which hears
before it condemns, or the procedure as
pointed out by Daniel Webster.

7. What are the requisites of judicial


due process?
As held in BANCO ESPANOL VS. PALANCA,
37 Phil. 921. The requisites are:
1.

2.

3.
4.

There must be an impartial court or


tribunal clothed with judicial power
to hear and decide the matter before
it;
Jurisdiction must be lawfully acquired
over the person of the defendant or
over the property subject of the
proceedings;
The defendant must be given the
opportunity to be heard;
Judgment must be rendered only
after lawful hearing.

8. What are the requisites


process before administrative bodies?

of

due

As held in TIBAY VS. CIR, 69 Phil. 635, the


requisites are:
a.
b.
c.
d.
e.
f.
g.

the right to a hearing which includes


the right to present evidence;
the tribunal must consider the
evidence presented;
the decision must have something to
support itself;
the evidence must be substantial;
the decision must be based on the
evidence presented during the
hearing;
the tribunal or body must act on its
own independent consideration of
the law or facts;
the board or body shall in all
controversial questions, render its
decision in such a manner that the
parties to the proceedings can know
the various issues involved.

9. If an accused was represented by a


non-lawyer during the trial of his criminal case,
what right of the said accused was violated? Is
he entitled to a new trial?
If an accused was represented by a nonlawyer during the entire trial (though she
thought that he was a lawyer), his right to due
process was violated and therefore, he
entitled to a new trial. (DELGADO VS. CA,
November 10, 1986).
9-a. Consulta was represented by one
Atty. Jocelyn Reyes from arraignment up to the
time that the prosecution rested its case. He
was represented by another lawyer when he
presented his evidence. It turned out that Atty.
Reyes was not a member of the Bar. May he
validly claim violation of his right to due process
and have a new trial like in Delgado?
No more. Even if he was not represented by
a non-lawyer at the start of the criminal trial,
particularly when the prosecution presented
its evidence,
but was represented by a

lawyer when he presented his evidence, there


is no violation of his right to due process or
right to counsel. All the requisites of
judicial
due
process
are
present.
(CONSULTA
VS.
PEOPLE,
G.R.
No.
179642, February 12, 2009)
9-b. Mayor Maliksi was furnished copies
of the Resolutions of the COMELEC directing his
opponent, who appealed the decision of the RTC
against him, to deposit amounts for the
decrypting, copying and printing of the ballot
images from CF Cards. Thereafter, the COMELEC
unseated Mayor Maliksi. He went to the
Supreme Court and claimed violation of his right
t to due process because he was not informed of
the dates when the decryption, copying and
printing of the ballot images.
Yes, his right to due process was violated. HE
WAS NOT INFORMED OF THE DATES WHEN THE
decryption, copying and printing of the ballot images
took place.
9-c. Is Senator Jinggoy Estradas right to
due process of law violated when the
Ombudsman did not furnish him copies of the
Counter-Affidavits of his co-respondents in the
graft and plunder cases against him?
No. There is no law or rule which requires the
Ombudsman to furnish a respondent with copies of the
counter-affidavits of his co-respondents. Sen. Estrada
claims that the denial of his Request for the counteraffidavits
of
his
co-respondents
violates
his
constitutional right to due process. Sen. Estrada,
however, fails to specify a law or rule which
states that it is a compulsory requirement of due
process in a preliminary investigation that the
Ombudsman furnish a respondent with the
counter-affidavits of his co-respondents. Neither
Section 3(b), Rule 112 of the Revised Rules of Criminal
Procedure nor Section 4(c), Rule II of the Rules of
Procedure of the Office of the Ombudsman supports
Sen. Estradas claim. The right is merely statutory, not
constitutional in preliminary investigation of criminal
complaints before the Prosecutors Office or Office of
the Ombudsman. (SENATOR JINGGOY EJERCITO vs.
OFFICE OF THE OMBUDSMAN, G.R. Nos. 21214041, January 21, 2015)
9-d. How about if the case is an
administrative case? Is a respondent entitled to be
furnished copies of the Counter-Affidavits of his corespondents?
Yes. (Office of the Ombudsman v. Reyes) , an
administrative case, in which a different set of rules
of procedure and standards apply. Sen. Estradas
Petition, in contrast, involves the preliminary
investigation stage in a criminal case. Rule III on the
Procedure in Administrative Cases of the Rules of
Procedure of the Office of the Ombudsman applies in
the Reyes case, while Rule II on the Procedure in
Criminal Cases of the Rules of Procedure of the Office
of the Ombudsman applies in Sen. Estradas Petition.
In both cases, the Rules of Court apply in a suppletory
character or by analogy.
In the Reyes case, failure to furnish a
copy of the counter-affidavits happened in the
administrative proceedings on the merits, which
resulted in Reyes dismissal from the service. In
Sen. Estradas Petition, the denial of his Request
happened during the preliminary investigation where

30
the only issue is the existence of probable cause for
the purpose of determining whether an information
should be filed, and does not prevent Sen. Estrada
from requesting a copy of the counter-affidavits of his
co-respondents during the pre-trial or even during the
trial. We should remember to consider the differences
in adjudicating cases, particularly an administrative
case and a criminal case:
Note that in administrative cases, the same
may be decided on the merits immediately
based on said pleadings unlike in preliminary
investigations where the only issue is the
existence of probable cause before trial could
proceed where all those evidence are available
to the respondent.
9-e. Is there a violation of the accuseds
right to due process when his motion for a new
trial because he was accorded grossly insufficient
legal assistance by his former lawyer was denied
by the Sandiganbayan?
No. The petitioner was given an
opportunity to be heard during trial. This opportunity
to be heard is the essence of due process. While
petitioner claims that he was incorrectly advised by his
former counsel that the presentation of evidence is no
longer necessary, this unfortunate mistake cannot
qualify as gross negligence or incompetence that
would necessitate a reopening of the proceedings. In
fact, not once did petitioner refute, or at the very least,
address the Sandiganbayans finding that he had
expressly consented to the waiver of the presentation
of evidence by affixing his signature as conformity to
the manifestation submitted by his former (EDELBERT
C. UYBOCO vs. PEOPLE OF THE PHILIPPINES, G.R.
No. 211703, December 10, 2014 )
9-f. Is the accuseds right to due process of
law violated when the court denied his motion for
reconsideration and/or new trial based on
former
counsels mistake who categorically admitted that he
did not know of petitioners ailment and thus did not
make the proper manifestations in Court?
No. . While his counsel represents him, the
latters mistakes should not deprive him of his day in
court to present his side. (ALEJANDRO C.
ALMENDRAS, JR. vs. ALEXIS C. ALMENDRAS, G.R.
No. 179491, January 14, 2015.)
.
10. What are the requisites of procedural
due process in disciplinary actions against
students?
As held in GUZMAN VS. NU, 142 SCRA
706, the requisites are:
1. the students must
be informed in writing of
the nature and cause of
any accusation against
them;
2.
they shall have
the right to answer the
charges against them,
with the assistance of
counsel;
3.
they shall be
informed of the evidence
against them;

4.
they shall have
the right to adduce
evidence in their own
behalf;
5.
the evidence
must be duly considered
by
the
investigating
committee
or
official
designated by the school
authorities to hear and
decide the case.
11. What are the requisites of due
process before a private employee may be
dismissed from his work?
The requisites of Due Process before the NLRC
are:
1.
2.

Notice; and
Hearing

12. Is due process satisfied in


administrative
proceedings
if
the
respondent was not assisted by counsel?
There is no law, whether the Civil Service Act
or the Administrative Code of 1987, which provides
that a respondent in an administrative case should be
assisted by counsel in order that the proceedings
therein is considered valid. Not only, that, petitioner
herein was given the opportunity several times to
engage the services of a lawyer to assist him but he
confidently informed the investigators that he could
protect himself. (LUMIQUED VS. EXENEA, 282 SCRA
125)
12-a. Is there a violation of a persons
right to due process before an administrative
body like the Civil Service Commission if a party
was not allowed to cross-examine the witnesses
against him despite his request?
No. The right to due process is not violated
even if a party to an administrative case was
not allowed to cross-examine the other party
or his witnesses. What he is entitled to is the
right to be heard. (ATTY. ROMEO ERECE VS.
LYN MACALINGAY, ET AL., G.R. No.
166809, April 22, 2008)
12-b. How about in investigations
involving disciplinary actions against students,
are the latter entitled to cross-examine the
complainant and his witnesses?
A. No. The right to due process on the part of
a student is not violated even if he was not
allowed to cross-examine the other party or
his witnesses. Due process is served if he was
given the chance to present his evidence.
(DE LA SALLE UNIVERSITY VS. JUDGE
WILFREDO REYES, RTC 36, Manila, G.R.
No, 127980, December 19, 2007)
12-c. Is there a violation of the right to
due process if members of a faction of the
Liberal Party were expelled from said party in a
meeting where they were not even notified nor
given the chance to be heard?
No. Due process could be invoked only before
tribunals created by the State through which
governmental
acts
or
functions
are
performed. The right to due process guards
against unwarranted encroachment by the

31
State into fundamental rights and cannot be
invoked in private controversies involving
private rights. (ATIENZA VS. COMELEC &
MANUEL ROXAS III, ET AL., February 16,
2010)
13. What are the requisites for a valid
classification?
As held in People vs. Cayat, 68
Phil. 12, the requisites are:
a.
b.
c.
d.

There
must
be
real
and
substantial distinctions;
It must be germane tot he
purposes of the law;
It must not be limited to existing
conditions only; and
It must apply equally to all
members of the same class.

14. Is there violation of the equal


protection clause if policemen who are charged
of a criminal offense punishable for more than
six (6) years will remain suspended until after
the his acquittal unlike other public officers
whose maximum suspension even when facing
graft and corrupt charges is only three (3)
months?
No there is o violation. In HIMAGAN VS.
PEOPLE, the Supreme Court held that the fact that
policemen charged with a criminal offense
punishable by more than 6 years are to be
suspended during the entire duration of the case
unlike other government employees is valid since it
rests on valid classification because policemen
carry weapons and the badge of the law which can
be used to harass or intimidate witnesses against
them.
14-a. Is there a violation of the right to
equal protection of the laws of appointed
government
officials
who
are
deemed
automatically resigned upon the filing of their
certificate of candidacy while elected officials
are not?
No, there is real and substantial distinction.
Most elected officials have a fixed term under
the Constitution and said term could not be
shortened by means of a law. (QUINTO VS.
COMELEC, February 22, 2010)
14-b. Is there violation of the equal
protection clause if policemen and soldiers are
given allowances in the General Appropriations
Act while other government workers are not
since the allowances of all government workers
were incorporated already in their salaries
under
the
Compensation
and
Position
Classification Act of 1989?
No. There is real and substantial distinction.
Policemen and soldiers are in charge of the
defense of the country and could be
transferred to virtually anywhere in the
country. Since their basic pay does not vary on
location, the continued grant of COLA to them
is intended to help them offset the effects of
living in higher cost areas. (GUTIERREZ VS.
DEPARTMENT OF BUDGET AND MANAGEMENT,
March 18, 2010)

14-c. Is Executive Order No. 1, Series of


2010 creating the Philippine Truth
Commission of 2010 to investigate
officers and employees of the previous
administration for graft and corruption
constitutional?
It is unconstitutional for violation of the equal
protection clause. It singles out the officials of
the previous administration only even though
there are also alleged graft and corruption in
other administrations before that of President
Arroyo. (BIRAOGO VS. PHILIPPINE TRUTH
COMMISSION, December 7, 2010)
14-d. Is there a violation of the equal
protection
clause
if
appointed
government
officials
are
deemed
automatically resigned upon the filing of
their certificates of candidacy while
elected
officials
may
continue
discharging the duties of their office
despite the filing of their COCs?
No violation of their right to equal protection
because there is real and substantial
distinctions. Note that the term of office of
Members of Congress, President and Vice
President are mandated by the Constitution
which is up to noon of June 30, 3 years or 6
years after their election and as such,
Congress could not shorten their term by
providing that they are deemed resigned upon
the filing of their COCs..
14-e. Is there a violation of the equal
protection c lause if medical practitioners may
not be compelled to perform a reproductive
health procedure by reason of their religious
beliefs but provincial health officers, city or
municipal health officers, chiefs of hospitals, ,
nurses and midwifes must do it regardless of
their religious beliefs by reason of their offices
and they could not be considered as
conscientious objectors?
Yes, said provision is violative of the
equal protection clause. There is no real and
substantial
distinction
why
medical
practitioners could not be compelled by reason
of their religious beliefs while the provincial
health officers, city or municipal health
officers, chiefs of hospitals, , nurses and
midwifes could be compelled just because
that is their work even if against their religious
beliefs. (IMBONG VS. OCHOA, GR No.
204819, April 8, 2014)
14-e. Is there a violation of the equal
protection clause because the penalty
for online Libel is one degree higher than
the penalty for libel through newspapers,
etc.?
No violation. Aside from the fact that fixing
the penalties is the prerogative of Congress,
the stiffer penalty is justified because the
offender in using the internet often evades
identification and is able to reach far mor
victims or cause greater harm. The higher
penalties is proportionate to the evil sought tro
be punished. (DISINI VS. SECRETARY OF
JUSTICE, GR No. 203335, February 18,
2014)

32
15. What are the requisites of a valid
search warrant or warrant of arrest?
No search warrant or warrant of arrest shall
issue except upon probable cause to be determined
personally by the judge after examination under oath
or affirmation of the complainant and the witnesses he
may produce, and particularly describing the place to
be searched and the persons or things to be seized.
(Section 2, Art. III)
In addition, Rule 126 of the Rules on Criminal
Procedure requires that no warrant shall be issued for
more than one (1) specific offense and that in the
implementation of a search warrant when the
respondent is not present, witnesses are required.
Finally, a Circular issued by the Supreme Court
requires that no warrant or warrant of arrest shall be
implemented during the night, week-ends or holidays,
except in exceptional cases.
15-a. What are the two (2) kinds of
probable cause?
The two (2) kinds of probable cause are:
[1] The executive determination of probable
cause by the Prosecutor where he determines
whether to file a criminal case in court or not;
and
[2] Judicial determination
be done by the judge
issuing a warrant of
accused. (LEVISTE VS.
August 3, 2010)

of probable cause to
for the purpose of
arrest against the
JUDGE ALAMEDA,

15-b. May the AntiTerrorism


Council
issue a warrant of
detention against
terrorists
or
suspected
terrorists
without
violating
Section
2, Art. III of the
Constitution which
allows
only
judges to issue
warrants?
In the cases of [1]
[1] SOUTHERN
HEMISPHERE ENGAGEMENT NETWORK,
INC., on behalf of the South-South
Network (SSN) for Non-State Armed
Group Engagement, and ATTY. SOLIMAN
M. SANTOS, JR.,
[2] KILUSANG MAYO
UNO (KMU;
[3] BAGONG ALYANSANG
MAKABAYAN (BAYAN), [4] KARAPATAN,
ALLIANCE FOR THE ADVANCEMENT OF
PEOPLES RIGHTS, [5] THE INTEGRATED
BAR OF THE PHILIPPINES (IBP), vs. THE
ANTI-TERRORISM COUNCIL, ET AL., G.R.
No. 178552, October 5, 2010 , the
Supreme Court failed to decide on the
constitutionality of the said law because the
petitioners were held
to have no legal
standing or personality to sue.
Please note of the questionable provisions of
the said law:
Sec. 18. Period of detention without
judicial warrant of arrest.- The
provisions of Article 125 of the
Revised Penal Code, notwithstanding,

any police or law enforcement


personnel, who, having been duly
authorized in writing by the AntiTerrorism
Council
has
taken
custody of a person charged with or
suspected of the crime of terrorism
or the crime of conspiracy to commit
terrorism shall, WITHOUT INCURRING
ANY CRIMINAL LIABILITY FOR DELAY
IN THE DELIVERY OF DETAINED
PERSONS TO THE PROPER JUDICIAL
AUTHORITIES,
DELIVER
SAID
CHARGED OR SUSPECTED PERSON
TO THE PROPER JUDICIAL AUTHORITY
WITHIN A PERIOD OF THREE (3) DAYS
counted from the moment said
charged or suspected person has
been apprehended or arrested,
detained, and taken into custody by
the said police, or law enforcement
personnel: Provided, That the arrest
of those suspected of the crime of
terrorism or conspiracy to commit
terrorism must result from the
surveillance under Section 7 and
examination of bank deposits under
Section 27 pf this Act.
Section 19. Period of
Detention in the event of an actual
or imminent terrorist attack.- In the
vent of an actual or imminent
terrorist attack,, suspects may not be
detained for more than three days
without the written approval of a
municipal, city, provincial or regional
official
of
a
Human
Rights
Commission,
or
judge
of the
municipal, regional trial court, the
Sandiganbayan or a justice of the
Court of Appeals nearest the place of
arrest. If the arrest is made during
Saturdays, Sundays or holidays, or
after office hours, the arresting
police of law enforcement personnel
shall bring the person thus arrested
to the residence of any of the
officials mentioned above that is
nearest the place where the accused
was arrested. The approval in writing
of any of the said officials shall be
secured by the police or law
enforcement personnel concerned
within five days after the date of the
detention of the persons concerned;
Provided, however, That within three
days after the detention the suspects
whose connection with the terror
attack or threat is not established,
shall be released immediately.
(NOTE: Under the
Human
Security
Act/Anti-Terrorism
Law, Republic Act
No.
9372,
Approved on March
6,
2007
and
effective on July
15, 2007 (This Law
shall
be
automatically
suspended one (1)
month before and
two (2) months

33
after the holding of
any
election)
a
person
may
be
taken into custody
by the police if
there is a written
authorization
by
the Anti-Terrorism
Council and such
detention may be
extended
upon
written approval of
the Commission of
Human Rights in
case of actual or
imminent terrorist
attack..)

20. What is a scatter-shot warrant?


It is a search warrant issued for more
than one (1) specific offense like a search
warrant issued for estafa, robbery, theft and
qualified theft. (TAMBASEN VS. PEOPLE,
July 14, 1995; PEOPLE VS. CA, 216 SCRA
101)
21. May a judge validly issue a warrant
of arrest based only from the Information and
the Resolution of the Prosecutor finding
probable cause against the accused?

16. In case the place to be searched as


indicated in the search warrant is erroneous
because it is different from the place mentioned
by the applicants who searched the place
indicated by them in their affidavit, are the
things seized admissible in evidence?
No. As held in PEOPLE VS. CA, 291 SCRA
400, WHAT IS MATERIAL IN DETERMINING THE VALIDITY
OF A SEARCH IS THE PLACE STATED IN THE WARRANT
ITSELF, NOT WHAT THE APPLICANTS HAD IN THEIR
THOUGHTS, OR HAD REPRESENTED IN THE PROOFS
THEY SUBMITTED TO THE COURT ISSUING THE
WARRANT.
17. What are the different instances
when a warrantless search and seizure is
allowed under our existing jurisprudence?
Warrantless search is allowed in the
following instances:
1.
2.
3.
4.
5.
6.

customs searches;
searches of moving
vehicle;
seizure of evidence in
plain view;
consented searches;
search incidental to a
lawful arrest; and
stop
and
frisk
measures. (PEOPLE VS.
ARUTA, 288 SCRA 626)

18. May a judge deputize


Court to take the deposition of the
a search warrant subject to
questions after his hearing in other

his Clerk of
applicant for
clarificatory
cases?

No. As held in Bache vs. Ruiz, 37 SCRA 823,


the examination of the complainant ant the witnesses
he may produce must be done personally by the
judge. Otherwise, the warrant shall be void. As such,
the SC held in PENDON VS. CA, November 16, 1990
that when the questions asked to the applicant for a
search warrant was pre-typed, the same is not valid
since there could have been no searching questions.
19. May a single search warrant be
issued for the crimes of
estafa, falsification,
tax evasion and insurance fraud?
No, such would be a general warrant and
violates the rule that a warrant shall be issued for one
(1) specific offense. (Asian Surety vs. Herrera, 54
SCRA 312)

No. There will be no basis for the issuance


since the Prosecutor is neither the complainant nor the
witness to the case. He could not have determined
probable cause based from the said documents.
(VICENTE LIM,SR. AND MAYOR SUSANA LIM
VS.HON. N. FELIX , G.R. NO. 99054-57). As held in
the case of Soliven vs. Makasiar, decided under the
1987 Constitution, the Court noted that the addition of
the word personally after the word determined and the
deletion of the grant of authority by the 1973
Constitution to issue warrants to other respondent
officers as to may be authorized by law does not
require the judge to personally examine the
complainant and his witness in his determination of
probable cause for the issuance of a warrant of
arrest.What the Constitution underscores is the
exclusive and personal responsibility of the issuing
judge to satisfy himself of the existence of probable
cause. Following established doctrine and procedures,
he shall:
(1) personally evaluate the
reports and the supporting documents
submitted by the fiscal regarding the
existence of probable cause and, on the basis
thereof, issue a warrant of arrest;
(2) If on the basis thereof he
finds no probable cause, he may disregard the
fiscal's report and require the submission of
supporting affidavits of witnesses to aid him
in arriving at a conclusion as to the existence
of probable cause.
The case of People vs. Honorable
Enrique B. Inting reiterates the following
doctrines:
(1)
The determination of
probable cause is a function of the judge. It is
not for the Provincial Fiscal or Prosecutor nor
for the Election Supervisor to ascertain. Only
the judge alone makes this determination.
(2) The preliminary inquiry made
by the prosecutor does not bind the judge. It
merely assist him to make the determination
of probable cause. The judge does not have to
follow what the prosecutor's present to him.
By itself, the prosecutor's certification of
probable cause is ineffectual. It is the report,
the affidavits, the transcripts of stenographic
notes, and all other supporting documents
behind the prosecutor's certification which are
material in assisting the judge to make his
determination.
(3) Preliminary inquiry should be
distinguished
from
the
preliminary
investigation proper. While the former seeks
to determine probable cause for the issuance
of warrant of arrest, the latter ascertains

34
whether the offender should be held for trial
or be released.
22. As to the requirement that the judge
must personally determine probable cause,
must he examine the complainant and his
witnesses face to face in order to comply with
the said constitutional provision?
It depends.
[1]. In connection with the issuance of a
SEARCH WARRANT, he must personally examine the
complainant and the witnesses, with searching
questions, face to face. (Bache vs. Judge Ruiz, supra)
[2]. In connection with the issuance of a
warrant of arrest, however, the word personally
after the word determined does not necessarily mean
that the judge should examine the complainant and his
witnesses personally or face to face before issuing the
warrant of arrest but the exclusive responsibility on the
part of said judge to satisfy himself of the existence of
probable cause. As such, there is no need to examine
the complainant and his witnesses face to face. It is
sufficient if the judge is convinced of the existence of
probable cause upon reading the affidavits or
deposition of the complainant and his witnesses.
SOLIVEN VS. MAKASIAR, 167 SCRA 393
23. Is the judge bound by the findings of
existence of probable cause by the Prosecutor
as indicated in his Certification in the
information so that the issuance of a warrant of
arrest is only ministerial on his part? If not
satisfied of the existence of probable cause,
may the judge require the Prosecutor to submit
additional evidence?
The judge is not bound by the findings of the
Prosecutor because the said finding is only probable
cause that a crime was committed. Probable cause to
justify the issuance of a warrant of arrest is a judicial
function vested only in the judge. In fact, he can
require the Prosecutor to submit additional evidence if
he is not convinced of the existence of probable for the
issuance of a warrant of arrest. (P. vs. Villanueva,
110 SCRA 465; Placer vs. Villanueva, 126 SCRA
463).
24. Is "Operation Kapkap" being done
by the police because the suspect has
something bulging in his waist and keeps on
touching his abdomen as if touching a gun valid?
As held in PEOPLE VS. MENGOTE, G.R. No.
87059, June, 1992, 210 SCRA 174, OPERATION
KAPKAP or warrantless search without probable cause
is unconstitutional. Such search is valid only if covered
by Section 5, Article 113 of the Rules of Court which
provides:
Sec.
5. Arrest without
warrant; when lawful.A peace
officer or private person may,
without warrant, arrest a person:
(a) When, in his
presence, the person to be
arrested has committed, is
actually committing, or is
attempting to commit an
offense;
offense

(b)
has

When
in fact

an
just

been committed, and he


has personal knowledge of
facts indicating that the
person to be arrested has
committed it; and
(c)
When
the
person to be arrested is a
prisoner who has escaped
from a penal establishment
or place where he is serving
final
judgment
or
temporarily confined while
his case is pending, or has
escaped
while
being
transferred
from
one
confinement to another.
Compare this case to MANALILI VS. PEOPLE,
October 9, 1997. The policemen saw several
suspicious looking men at dawn who ran when they
went near them. As the policemen ran after them, an
unlicensed firearm was confiscated. The search was
declared valid by the Supreme Court. Note, however,
that in MALACAT VS. CA, 283 SCRA 159, the SC held
that mere suspicions not sufficient to validate
warrantless arrest.
24-a. Is the provision of the Online Libel
Law which authorizes the DOJ to restrict or block
computer data because in its opinion, the same
is obsene, pornographic, etc.?
The said provision is unconstitutional. It would
violate the search and seizure provision and makes
the DOJthe judge, jury and executioner rolled into one.
It also restrains free speech. (DISINI VS. SECRETARY
OF JUSTICE, GR No. 20335, February 18, 2014)
25. May the Iloilo Police arrest or makes
a search
without warrant
the person
disembarking from a ship
based solely on an
information relayed to them by an informant
that the suspects bag contains marijuana?
No. As held in PEOPLE vs. AMMINUIDIN,
163 SCRA 402 a warrantless arrest of the accused
was unconstitutional. This was effected while he was
coming down the vessel, to all appearances no less
innocent than the other disembarking passengers. He
had not committed nor was actually committing or
attempting to commit an offense in the presence of
the arresting officers. He was not even acting
suspiciously. In short, there was no probable cause
that, as the prosecution incorrectly suggested,
dispensed with the constitutional requirement of a
warrant.
26. In arrests without warrant based on
the fact that a crime has just been committed,
what kind of knowledge is required on the part
of the arresting officer?
In PEOPLE VS. GALVEZ, 355 SCRA 246,
the Supreme Court held that the policeman
arrested the accused-appellant on the basis solely of
what Reynaldo Castro had told him and not because he
saw the accused-appellant commit the crime charged
against him. Indeed, the prosecution admitted that
there was no warrant of arrest issued against accusedappellant when the latter was taken into custody.
Considering that the accused-appellant was not
committing a crime at the time he was arrested nor
did the arresting officer have any personal knowledge

35
of facts indicating that accused-appellant committed a
crime, his arrest without a warrant cannot be justified.
27. What is the effect on the illegality of
the arrest by the subsequent act of the accused
in posting bond for his provisional liberty and
entering a plea during his arraignment?
By entering a plea of not guilty during the
arraignment, the accused-appellant waived his right to
raise the issue of illegality of his arrest. IT IS NOW
SETTLED THAT OBJECTION TO A WARRANT OF ARREST
OR THE PROCEDURE BY WHICH A COURT ACQUIRES
JURISDICTION OVER THE PERSON OF AN ACCUSED
MUST BE MADE BEFORE HE ENTERS HIS PLEA,
OTHERWISE, THE OBJECTION IS DEEMED WAIVED. THE
FACT THAT THE ARREST WAS ILLEGAL DOES NOT
RENDER THE SUBSEQUENT PROCEEDINGS VOID AND
DEPRIVE THE STATE OF ITS RIGHT TO CONVICT THE
GUILTY WHEN ALL THE FACTS POINT TO THE
CULPABILITY OF THE ACCUSED. (PEOPLE VS.
GALVEZ, 355 SCRA 246)
28. Is a warrantless search and seizure
by a private individual valid?
Yes since the constitutional provision is not
applicable to him. (PEOPLE OF THE PHILIPPINES
VS. ANDRE MARTI, G.R. NO. 81561, January 18,
1991; SILAHIS INTERNATIONAL HOTEL, INC. VS.
ROGELIO SOLUTA, ET AL., 482 SCRA 660)
29. What are the requisites of a valid
search incidental to a valid arrest?
As held in NOLASCO VS. PANO, 139 SCRA
541, a search incidental to a valid arrest must be
done at the place where the accused is arrested or its
immediate vicinity or on the person of the accused. As
such, if accused was arrested while inside a jeepney,
there is no valid search incidental to a valid arrest if
she will be brought to her residence and thereafter
search the said place. Or as held in ESPANO VS. CA,
288 SCRA 588, if the accused was arrested in the
street during a buy-bust operation, the search of his
house nearby is not a valid search incidental to a valid
arrest.
30. If the accused was validly arrested
without warrant inside a night club for illegal
possession of firearm, may the arresting officers
validly search his car parked several meters
from the place of arrest based on search
incidental to a valid arrest?
Where the gun tucked in a persons waist is
plainly visible to the police, no search warrant is
necessary and in the absence of any license for said
firearm, he may be arrested at once as he is in effect
committing a crime in the presence of the police
officers. No warrant is necessary in such a situation, it
being one of the recognized exceptions under the
Rules. As a consequence of the accuseds valid
warrantless arrest inside the nightclub, he may be
lawfully searched for dangerous weapons or anything
which may be used as proof of the commission of an
offense, without a search warrant in accordance with
Section 12, Rule 126. This is a valid search incidental
to a lawful arrest.

In fact, the subsequent discovery in his car


(which was parked in a distant place from where the
illegal possession of firearm was committed [after he
requested that he will bring his car to the Police Station
after his warrantless arrest---with a policeman
escorting him]) , of a drug paraphernalia and shabu,
CANNOT BE SAID TO HAVE BEEN MADE DURING AN
ILLEGAL SEARCH because of his consent, not due to
search incidental to a valid arrest. As such, the items
do not fall under the exclusionary rule and the
unlicensed firearms, drug paraphernalia and the
shabu, can be used as evidence against the accused.
accused.
(PEOPLE VS. GO, 354 SCRA 338)
31. May the police authorities validly
search the rented apartment of a suspect
without a search warrant or without the consent
of the said person BUT WITH THE CONSENT OF
THE OWNER OF THE APARTMENT?
No. PEOPLE VS. DAMASO, 212 SCRA 547
abandoned the ruling in Lopez vs. Commissioner where
the alleged wife could give a valid consent for the
search of the hotel room of her husband as held by the
Supreme Court---even though it turned out that she
was just a manicurist of the suspect . In order that
there is a valid consent to a warrantless search, the
consent must come from the person directly affected
by said warrantless search.
32. What is the plain view doctrine in
connection with warrantless search and seizure?
As held in PEOPLE VS. VALDEZ, 341 SCRA
25, the plain view doctrine, which may justify a
search without warrant, APPLIES ONLY WHERE THE
POLICE OFFICER IS NOT SEARCHING FOR EVIDENCE
AGAINST THE ACCUSED, BUT INADVERTENTLY COMES
ACROSS AN INCRIMINATING OBJECT. As such, plain
view doctrine could not be used to justify the seizure of
an unlicensed firearm in People vs. Damaso, supra,
which was seen on top of a table after the opening of
his apartments door without a warrant nor consent of
the occupant therein.
32-a. The police received an information
that accuseds house is surrounded by fully
grown marijuana. Thereafter, the police went to
the place of the accused and it turned out that
the information was correct. The accused was
arrested and the police took his pictures infront
of his marijuana plants and other pictures with
him after uprooting the same. Is the seizure of
the marijuana plants justified under the plain
view doctrine?
No, the seizure is not valid. Nor can it be
justified under the plain view doctrine. In order that the
plain view doctrine could be validly applied, the
marijuana plants must have been INADVERTENTLY
FOUND. In this case, the policement went there
specifically to look for it. (PEOPLE VS. VALDEZ, 341
SCRA 25)
33. Define probable cause in connection
with the issuance of a search warrant.
The "probable cause" for a valid search
warrant, has been defined "as such facts and
circumstances which would lead a reasonably discreet
and prudent man to believe that an offense has been
committed, and that the objects sought in connection
with the offense are in the place sought to be
searched". (Quintero vs. NBI, June 23, 1988). This
probable cause must be shown to be within the
personal knowledge of the complainant or the

36
witnesses he may produce and not based on mere
hearsay. (P. VS. SY JUCO, 64 PHIL. 667; ALVAREZ VS.
CFI, 64 PHIL. 33; US VS. ADDISON, 28 PHIL. 566).
34. What is the sufficiency test in
connection with applications for a search
warrant?
"The true test of sufficiency of a deposition or
affidavit to warrant issuance of a search warrant is
whether it was drawn in a manner that perjury
could be charged thereon and the affiant be held
liable for damage caused. The oath required must
refer to the truth of the facts within the personal
knowledge of the applicant of a search warrant and/or
his witnesses, not of the facts merely reported by a
person whom one considers to be reliable." (DR.
NEMESIO PRUDENTE VS. THE HON. EXECUTIVE JUDGE
ABELARDO M. DAYRIT, RTC 33, Manila & People of the
Philippines, GR No. 82870, December 14, 1989)

one like that obtaining in this case for


murder, the
Judge must issue a
warrant of arrest after determining
the existence of probable cause)
38. If the applicant for a search warrant
testifies that his knowledge of the facts and
circumstances was derived from a highly
reliable informant, would such fact sufficient to
convince the court of the existence of probable
cause?
No, knowledge based on hearsay information
does not justify the existence of probable cause.
(Prudente vs. Dayrit, supra.) In fact, when the
statements in the affidavits of witnesses are mere
generalities, mere conclusions of law, and not positive
statements of particular acts, the warrant issued by
virtue thereof is not valid. Ponsica vs. Ignalaga,
July 31,1987)

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

39. In the seizure of alleged pirated


tapes, what must the applicant submit to the
court in order that the search warrant to be
issued shall be valid?

In RICARDO VALMONTE VS. GEN RENATO


DE VILLA, GR No. 83988, September 29, 1989,
the Supreme Court held that warrantless searches and
seizures in military and police checkpoints are not
illegal as these measures to protect the government
and safeguards the lives of the people. The
checkpoints are legal as where the survival of the
organized government is on the balance, or where the
lives and safety of the people are in grave peril.
However, the Supreme Court clarified that the military
officers manning the checkpoints may conduct VISUAL
SEARCH ONLY, NOT BODILY SEARCH.

In Century Fox vs. CA, 164 SCRA 655


and COLUMBIA PICTURES VS. CA, 261 SCRA 144,
it was held that the master copy of the allegedly
pirated tape should be presented before the judge in
order to convince him of the existence of probable
cause)

36. Is an unlicensed firearm seized in


the house of the accused without warrant by the
military authorities, after they were
given
consent by the said owner of the house for them
to search for rebel soldiers,
admissible in
evidence?
No. In VEROY VS. LAYAGUE, 210 SCRA 97,
the Supreme Court held that the owner of the house
allowed the policemen to enter his house because they
will be searching for rebel soldiers but when inside the
house, they instead seized an unlicensed firearm. As
such, there was no consent to search for firearms and
as a consequence, the firearm is not admissible as
evidence.
37. If the judge finds that there's
probable cause, must he issue a warrant of
arrest as a matter of course?
It depends:
1.

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

2.

GOZO VS. TAC-AN, 300 SCRA 265.


If the offense committed is a serious

40. What is the effect on the evidence


obtained in violation of Sections 2 and 3 of
Article III?
Any evidence obtained in violation of Sections
2 and 3 of Article III shall be inadmissible for any
purpose in any proceeding.
41. Under the Human Security Act/AntiTerrorism Law, Republic Act No. 9372, Approved
on March 6, 2007 and effective on July 15, 2007,
may police authorities the listen to, intercept
and record, with the use of any mode, form or
kind or type of electronic or other surveillance
equipment or intercepting and tracking devices,
or with the use of any other suitable ways or
means for that purpose, any communication,
message, conversation, discussion, or spoken or
written words of a person without violating the
right to privacy?
Yes under Sections 7 and 8 of the law which
provides:
Section 7. Surveillance of
suspects
and
interception
and
recording of communications. The
provisions
of
RA
4200
(AntiWiretapping Law) to the contrary
notwithstanding, a police or law
enforcement
official
and
the
members of his team may, upon a
written order of the Court of Appeals,
listen to, intercept and record, with
the use of any mode, form or kind or
type
of
electronic
or
other
surveillance
equipment
or
intercepting and tracking devices, or
with the use of any other suitable
ways or means for that purpose, any
communication,
message,
conversation, discussion, or spoken

37
or written words between members
of a judicially declared and outlawed
terrorist organization, association, or
group of persons or of any person
charged with or suspected of the
crime of terrorism or conspiracy to
commit terrorism.
Provided, That surveillance,
interception
and
recording
of
communications between lawyers
and clients, doctors and patients,
journalists and their sources and
confidential
business
correspondence
shall
not
be
authorized.
42. Under the Human Security Act/AntiTerrorism Law, Republic Act No. 9372, Approved
on March 6, 2007 and effective on July 15, 2007,
may police authorities examine the bank
accounts of individuals without violating their
right to privacy?
Yes under Sections 27 and 28 of the said law.
It provides:
Section 27. Judicial authorization required to
examine bank deposits, accounts and records.
The justices of CA designated as special court
to handle anti-terrorism cases after satisfying
themselves of the existence of probable cause in a
hearing called for that purpose that:
A person charged with or suspected of
the crime of terrorism or conspiracy
to commit terrorism;
Of a judicially declared and outlawed
terrorist organization or group of
persons;
Of a member of such judicially declared
and
outlawed
organization,
association or group of persons, may
authorize in writing any police or law
enforcement
officer
and
the
members of his team duly authorized
in writing by the anti-terrorism
council to:
examine
or
cause
the
examination
of,
the
deposits, placements, trust
accounts,
assets,
and
records in a bank or
financial institution; and
gather or cause the gathering of
any relevant information
about
such
deposits,
placements, trust accounts,
assets, and records from a
bank or financial institution.
The
bank
or
financial
institution shall not refuse
to allow such examination
or to provide the desired
information,
when
so
ordered by and served with
the written order of the
Court of Appeals.
Sec. 28. Application to examine deposits,
accounts and records.
The written order of the CA authorizing the
examination of bank deposits, placements, trust
accounts, assets and records:

A person charged with or suspected of


the crime of terrorism or conspiracy
to commit terrorism;
Of a judicially declared and outlawed
terrorist organization or group of
persons;
Of a member of such judicially declared
and
outlawed
organization,
association or group of persons, in a
bank or financial institution-SHALL
ONLY
BE
GRANTED
BY
THE
AUTHORIZING DIVISION OF THE CA UPON AN EX-PARTE
APPLICATION TO THAT EFFECT OF A POLICE OR LAW
ENFORCEMENT OFFICIAL who has been duly authorized
by the Anti-Terrorism Council to file such ex-parte
application and upon examination under oath or
affirmation of the applicant and his witnesses he may
produce to establish the facts that will justify the need
and urgency of examining and freezing the bank
deposits, placements, trust accounts, assets and
records:
Of A person charged with or suspected of
the crime of terrorism or conspiracy
to commit terrorism;
Of a judicially declared and outlawed
terrorist organization or group of
persons;
Of a member of such judicially declared
and
outlawed
organization,
association or group of persons.
43. May a wife validly seize the diaries,
checks and greeting cards
of the
alleged
paramours of her husband in the latters clinic
and use the same as evidence in a legal
separation case between them?
As held in ZULUETA VS. CA, February 10,
1996, the evidence obtained by the wife who forcibly
opened the drawers at the clinic of her doctor-husband
and took diaries, checks and greeting cards of his
alleged paramours is inadmissible as evidence. This is
so because the intimacies of husband and wife does
not justify the breaking of cabinets to determine
marital infidelity. It violates the right to privacy.
43-a. What are the two (2) categories of
the right to privacy?
The two (2) categories are:
1. Decisional privacy which involves the
right to independence in making certain important
decisions; and
2. Informational privacy which refers to
the
interest in avoiding
disclosures on personal
matters. (WHALEN VS. ROE, 429 US 589, cited in
DISINI VS. SECRETARY OF JUSTICE, GR No. 20335,
February 18, 2014)
43-b. What are the two (2) aspects of
informational privacy?
These are: [1] the right not to have
private information disclosed; and [2] the right
to live freely without surveillance and intrusion.
DISINI VS. SECRETARY OF JUSTICE, GR No. 20335,
February 18, 2014)
43-c. Is the freedom of speech and
expression affected by the Human Security Act?
Yes, under Section 26 of the law, it provides
that persons who have been charged with terrorism or

38
conspiracy to commit terrorism---even if they have
been granted bail because evidence of guilt is not
strongcan be: Prohibited from using any
cellular phones, computers, or other means of
communications with people outside their
residence.
44. What is the rule on criticisms on the
acts of public officers?
A public official should not be too onionskinned with reference to comments upon his official
acts. The interest of the government and the society
demands full discussion of public affairs. (US vs.
Bustos, 37 Phil. 731)
45. May the above rule applicable to
private individuals who are public figures or
private individuals who are candidates for public
office?
As held by the Supreme Court in the case of
BAGUIO MIDLAND COURIER & CECILLE AFABLE
VS. COURT OF APPEALS & RAMON LABO, JR., 444
SCRA 28 [November 25, 2004 , the article involving a
private individual running for Mayor of Baguio City is
still within the mantle of protection guaranteed by the
freedom of expression provided in the Constitution
since it is the publics right to be informed of the
mental, moral and physical fitness of candidates for
public office. This was recognized as early as the case
of US VS. SEDANO, 14 Phil. 338 [1909] and the case of
NEW YORK TIMES VS. SULLIVAN, 376 U.S. 254 where
the US Supreme Court held:

it is of
the
utmost
consequ
ence that
the
people
should
discuss
the
characte
r
and
qualificat
ions
of
candidat
es
for
their
suffrages
.
The
importan
ce to the
State
and
to
society
of
such
discussio
ns is so
vast, and
the
advantag
es
derived
so great,
that they
more
than
counterb
alance
the
inconven

ience of
private
persons
whose
conduct
may
be
involved,
and
occasion
al injury
to
the
reputatio
ns
of
individua
ls
must
yield to
the
public
welfare,
although
at times
such
injury
may
be
great.
The
public
benefit
from
publicity
is
so
great
and the
chance
of injury
to
private
characte
r
so
small,
that such
discussio
n
must
be
privilege
d.
Clearly, the questioned articles
constitute fair comment on a matter of public
interest as it dealt with the character of the
private respondent who was running for the top
elective post in Baguio City at that time.
46. May the COMELEC validly prohibit
columnists,
radio
announcers
and
TV
commentator for commenting for or against any
issue during the plebiscite period since they can
air their views in a program sponsored by the
COMELEC itself?
No, such would be an undue interference on
the freedom of expression. IT IS STILL A RESTRICTION
ON
THE
COLUMNIST,
ANNOUNCER
OR
COMMENTATORS CHOICE OF THE FORUM WHERE HE
MAY EXPRESS HIS VIEW. Plebiscite issues are matters
of public concern and importance. The people's right to
be informed and to be able to freely and intelligently
make a decision would be better served by access to
an unabridged discussion of the issues, INCLUDING
THE FORUM. The people affected by the issues
presented in a plebiscite should not be unduly
burdened by restrictions on the forum where the right
to expression may be exercised. (PABLITO V.
SANIDAD VS. COMELEC, G.R. NO. 90878, January
29, 1990)

39
47.
What are the requisites that a
newspaper must comply in order that its news
item on an ongoing trial in court will not be
actionable for being libelous?
In Elizalde vs. Gutierrez,76 SCRA 448, it
was held that in order that any news item relating to a
judicial proceeding will not be actionable, the same
must be [a] a true and fair report of the actual
proceedings; [b] must be done in good faith; and [c] no
comments nor remarks shall be made by the writer}
48. What are the tests of obscenity?
The three (3) tests as held in Miller vs.
California, 37 L. Ed. 2d 419 are:
1.

Whether the average person


applying
to
contemporary
community standards would find
the
work appeals to prurient
interest;
2. Whether the work depicts or
describes a patently offensive
sexual conduct;
3. Whether the work as a whole
lacks serious literary , artistic,
political or scientific value.
49. May the City Mayor order the
confiscation
without
a
search
warrant
magazines which he believes to be obscene?
What is the correct procedure for him to follow?
No.
(Pita vs. CA, 178 SCRA 362). A City
Mayor may not order the warrantless seizure of
magazines which he believes to be obscene;
otherwise, he will become the complainant, prosecutor
and judge at the same time. He should obtain a search
warrant from a judge by following the procedure laid
down by the Rules on how to secure a search warrant.
50. May public school teachers validly
file mass leaves, instead of going on strike, after
their demand to the government was not met
In GESITE et al. vs. COURT OF APPEALS, 444
SCRA 51 held that these mass actions were to all
intents and purposes a strike; they constituted a
concerted and unauthorized stoppage of, or absence
from, work which it was the teachers duty to perform,
undertaken for essentially economic reasons. It is
undisputed fact that there was a work stoppage and
that petitioners purpose was to realize their demands
by withholding their services. The fact that the
conventional term strike was not used by the striking
employees to describe their common course of action
is inconsequential, SINCE THE SUBSTANCE OF THE
SITUATION, AND NOT ITS APPEARANCE, WILL BE
DEEMED CONTROLLING.
The right of government employees to
organize IS LIMITED TO THE FORMATIONS OF UNIONS
OR ASSOCIATIONS ONLY, WITHOUT INCLUDING THE
RIGHT TO STRIKE. (Bangalisan vs. CA, 276 SCRA
619)
51. What is the procedure to be followed
in the application of rally permits before the City
or Municipal Mayor in accordance with BP Bilang
880?
The applicants for a permit to hold an
assembly should inform the licensing authority of the
date, the public place where and the time when it will

take place. If it were a private place, only the consent


of the owner or the one entitled to its legal possession
is required. Such application should be filed well
ahead in time to enable the public official concerned to
appraise whether there may be valid objections to the
grant of the permit or to its grant but at another public
place. It is an indispensable condition to such refusal
or modification that the clear and present danger test
be the standard for the decision reached. If he is of
the view that there is such an imminent and grave
danger of a substantive evil, the applicants must be
heard on the matter. Thereafter, his decision, whether
favorable or adverse, must be transmitted to them at
the earliest opportunity. Thus if so minded, they can
have recourse to the proper judicial authority.
(BAYAN, KARAPATAN, KILUSANG MAGBUBUKID
NG PILIPINAS (KMP),
and GABRIELA vs.
EDUARDO ERMITA, in his capacity as Executive
Secretary, Manila City Mayor LITO ATIENZA, Chief of
the Philippine National Police, Gen. ARTURO M.
LOMIBAO, NCRPO Chief Maj. Gen. VIDAL QUEROL,
and Western Police District Chief Gen. PEDRO
BULAONG, G.R. No. 169848, May, 2006)
51-a. May the City Mayor of Manila
validly deny the application for a rally permit, or
to change the venue thereof, if he finds
evidence of clear and present danger in
accordance with the JBL Reyes vs. Mayor
Bagatsing doctrine?
Compliance with the Reyes vs. Bagatsing
doctrine is no longer enough. Under the Public
Assemble Act, if the Mayor believes in the existence of
clear and present danger, HE MUST FIRST INFORM THE
APPLICANT OF THE SAID EVIDENCE AND GIVE HIIM THE
CHANCE TO SUBMIT CONTROVERTING EVIDENCE
BEFORE HE COULD DENY THE SAID APPLICATION FOR A
RALLY PERMIT. (INTEGRATED
BAR
OF
THE
PHILIPPINES VS. MAYOR JOSE ATIENZA, JR.,
February 24, 2010)
52. Is BP 880 unconstitutional for being
vague (Void for Vagueness Doctrine) and
overbroad (Overbreadth Doctrine)?
No. It is very clear that it deals only on public
assemblies that deals with rallies, mass actions and
similar acts and not all kinds of public assemblies. As
such, it is not vague.
Neither is the law overbroad. It regulates the
exercise of the right to peaceful assembly and petition
only to the extent needed to avoid a clear and present
danger of the substantive evils Congress has the right
to prevent.
53. Is the Calibrated Pre-emptive
Response (CPR) of the Arroyo Administration
towards rallyists constitutional?
The Court reiterates its basic policy of
upholding the fundamental rights of our people,
especially freedom of expression and freedom of
assembly.
For this reason, the so-called calibrated
preemptive response policy, the policy of dispersing
rallyists through water cannons, has no place in our
legal firmament and must be struck down as a
darkness that shrouds freedom. It merely confuses our
people and is used by some police agents to justify
abuses. On the other hand, B.P. No. 880 cannot be
condemned as unconstitutional; it does not curtail or
unduly restrict freedoms; it merely regulates the use of
public places as to the time, place and manner of
assemblies.
Far from being insidious, maximum
tolerance is for the benefit of rallyists, not the
government. The delegation to the mayors of the

40
power to issue rally permits is valid because it is
subject to the constitutionally-sound clear and
present danger standard. (BAYAN, KARAPATAN,
KILUSANG MAGBUBUKID NG PILIPINAS (KMP),
and GABRIELA vs. EDUARDO ERMITA, in his
capacity as Executive Secretary, Manila City Mayor
LITO ATIENZA, Chief of the Philippine National Police,
Gen. ARTURO M. LOMIBAO, NCRPO Chief Maj. Gen.
VIDAL QUEROL, and Western Police District Chief
Gen. PEDRO BULAONG,
G.R. No. 169848, May,
2006)
54. May the MTRCB suspend for three
(3) months the airing of the program Ang Dating
Daan of Brother Eliseo Soriano as a result of
vulgar and uncouth language he uttered against
the host of the program Ang Tamang Daan of the
Iglesia Ni Kristo?
Yes as subsequent punishment. In fact, it is a
valid prior restraint measure on the
part of the MTRCB (SORIANO VS.
LAGUARDIA, April 29, 2009) [Dissenting
Opinion: The suspension of the program
is illegal. It constitutes prior restraint.
He is prevented from hosting the
program during the succeeding days
even if he will just say the Lords
Prayer or to greet good morning to his
viewers. Per Justice Antonio Carpio]
54-a. May the City of Cauayan, Isabela,
validly close the Bombo Radio Stations therein
on the ground that their building was
constructed on an agricultural land [that is
why the City did not issue business permit for it
to operate] which has not been converted to
commercial land by the DAR despite the fact
that it has been there for so many years and
was questioned only when the said station was
critical of the Dys in Isabela who own the only
other radio station therein?
A. The act of the City of Cauayan, Isabela
constitutes prior restraint. It shall pay P10M in
damages for the losses suffered by Bombo Radyo as a
result
of
the
illegal
closure.
(NEWSOUNDS
BROADCASTING
NETWORK
INC.
and
CONSOLIDATED BROADCASTING SYSTEM, INC. vs.
HON. CEASAR G. DY, FELICISIMO G. MEER,
BAGNOS MAXIMO, RACMA FERNANDEZ-GARCIA
and THE CITY OF CAUAYAN, G.R. Nos. 170270
&179411, April 2, 2009)
54-b. Distinguish clear and present
danger, dangerous tendency rule and
balancing of interest test.
Clear and present danger and dangerous
tendency rule (whether the words used in such
circumstances and are of such a nature as to create a
clear and present danger that they will bring about the
substantive evils that the State has the right to
prevent)
Dangerous tendency rule (If the words uttered
create a dangerous tendency which the State has the
right to prevent, then such words are punishable)
The balancing-of-interest test (When a
particular conduct is regulated in the interest of the
public order, and the regulation results in an indirect,
conditional, partial abridgment of speech, the duty of
the courts is to determine which of the 2 conflicting

interests demand greater


circumstances presented.)

protection

under

the

55. May Senator Juan Ponce Enrile


prevent the movie producer of the EDSA I
Revolution
movie
from
including
his
participation during the uprising since it violates
his right to privacy?
No, as between Enriles right to privacy and
the freedom of expression on the part of the movie
producer, the latters right prevail because Enriles part
in the movie deals solely on his acts as a public officer
then. To exclude him as integral part of the revolution
would be a distortion of history. (AYER PRODUCTION
VS. JUDGE CAPULONG, JUAN PONCE ENRILE, ET AL.,
160 SCRA 861)
56. May the mother of a murdered Mayor
stop the filming of the life story of her son which
would include his alleged
love affairs which
would blacken his memory?
Yes. As between the right to privacy invoked
by the mother and the freedom of expression invoked
by the movie producer, the state shall balance their
respective interests. Since the movie producer is
primarily after profits only, the right to privacy shall
prevail. (Lagunzad vs. Gonzales).
57. What are the two (2) aspects of the
RIGHT
TO
RELIGIOUS
PROFESSION
AND
WORSHIP ? Distinguish each.
a.
b.

Freedom to believe; and


Freedom to act.

IN the first, such freedom is absolute. He may


indulge in his own theories about life and death;
worship any god he chooses, or none at all. He may
not be punished even if he cannot prove what he
believes.
In the second, if the individual externalizes
what he believes, his freedom to do so becomes
subject to the authority of the State. This is so because
religious freedom can be exercised only with due
regard to the rights of others. Example: Go forth and
multiply---cannot marry several times just to comply.
58. May a Jehovahs Witnesses Member
who is the Court Interpreter of RTC Branch 253,
Las Pinas City, be held
liable for grossly
immoral conduct for living with a married man
while her very own marriage was still subsisting?
No. As held in ESTRADA VS. SOLEDAD
ESCRITOR, 492 SCRA 1 (Resolution of the Motion
for Reconsideration), 408 SCRA 1, the Supreme
Court held that she is not liable for
grossly
immoral conduct because:
1.

She is a member of the Jehovahs


Witnesses and the Watch Tower Society;
2. That the conjugal arrangement was in
conformity with their religious beliefs;
3. That the conjugal arrangement with
Quilapio has the approval of her
congregation.
Escritor likewise claimed that [4] she had
executed a DECLARATION OF PLEDGING
FAITHFULNESS in accordance with her
religion which allows members of the
Jehovahs
witnesses
who
have
been

41
abandoned by their spouses to enter into
marital relations. The Declaration thus makes
the resulting union moral and binding within
the congregation all over the world except in
countries where divorce is allowed. Escritors
conjugal arrangement cannot be penalized as
she has made out a case for exemption from
the law based on her fundamental right to
religion. However, this mode of living with
another other than his or her spouse by a
married person does not apply in places
where divorce is allowed.

Upon application of the prosecutor,


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

59. May children of Jehovahs Witnesses


in public schools be forced to sing the National
Anthem; recite the Patriotic Pledge; and Salute
the Flag under pain of being expelled for noncompliance?

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

No since such is in violation of their religious


beliefs. (ROEL EBRALINAG, ET AL VS. THE DIVISION
SUPERINTENDENT OF SCHOOLS OF CEBU, March 1,
1993). Religious freedom is superior to the statute
requiring the pupils to sing the National Anthem; recite
the Patriotic Pledge; and Salute the Flag. The doctrine
laid down in Gerona vs. Secretary of Education was
reversed.
59-a. May LGBT Party of lesbians, gays
bisexuals
and
transgenders
be
denied
accreditation as a party-list group because it
allegedly espouses an obscene doctrine of
same sex marriage which is allegedly contrary
to the teachings of the Bible and the Koran?

Our Constitution provides in Article III, Section


5 that [n]o law shall be made respecting an
establishment of religion, or prohibiting the free
exercise thereof. At bottom, what our nonestablishment clause calls for is government
neutrality
in
religious
matters.
Clearly,
governmental reliance on religious justification is
inconsistent with this policy of neutrality. We thus
find that it was grave violation of the nonestablishment clause for the COMELEC to utilize the
Bible and the Koran to justify the exclusion of Ang
Ladlad. (ANG LADLAD LGBT PARTY VS. COMELEC, G.R.
No. 190582, April 7, 2010 )
60. How may the right to
travel be impaired?
The liberty of abode and of changing the
same within the limits prescribed by law shall not be
impaired except upon lawful order of the court. Neither
shall the right to travel be impaired except in the
interest of national security, public safety, or public
health, as may be provided by law.
61. Is the right to travel affected by the
Human Security Act?
Yes, Section 26 provides that persons who
have been charged with terrorism or conspiracy to
commit terrorism---even if they have been granted bail
because evidence of guilt is not strongcan be:

Detained
under
house
arrest;
Restricted
from traveling;
and/or

62. May Former President Marcos validly


compel the government to issue him his travel
papers in order that he could return to the
Philippines from his US exile in accordance with
his constitutional right to travel?
No. (FERDINAND MARCOS, ET AL. VS.
HON. RAUL MANGLAPUS, ET AL., G.R. NO. 88211,
September 15, 1989 and the Resolution of the
Motion for Reconsideration dated October 27,
1989). What is provided by the Philippine Constitution
is the right to travel and not the right to return. These
two (2) rights are different under the Universal
Declaration of Human Rights and International
Covenant on Civil and Political Rights. THE RIGHT TO
RETURN TO ONE'S COUNTRY IS NOT AMONG THE
RIGHTS SPECIFICALLY GUARANTEED BY THE BILL OF
RIGHTS, WHICH TREATS ONLY OF THE LIBERTY OF
ABODE AND THE RIGHT TO TRAVEL, BUT IT IS OUR
WELL-CONSIDERED VIEW THAT THE RIGHT TO RETURN
MAY BE CONSIDERED AS A GENERALLY ACCEPTED
PRINCIPLE OF INTERNATIONAL LAW, UNDER OUR
CONSTITUTION, IS PART OF THE LAW OF THE LAND.
63. What is the residual power of the
President?
It is the power of the President in balancing
the general welfare and the common good against the
exercise of rights of certain individuals. The power
involved is the
President's RESIDUAL POWER to
protect the general welfare of the people.
64. May a person out on bail be validly
allowed to travel abroad?
Yes, subject to the following requisites
( Manotoc vs. CA, 142 SCRA 149):
He must however [1] convince the courts of
the urgency of his travel, [2] the duration thereof, and
[3] that his sureties are willing to undertake the
responsibility of allowing him to travel.
65. Is the right to information on
matters of public concern absolute?
No. While the right of the people to
information on matters of public concern shall be
recognized and access to official recordsshall be
afforded the citizen, it must be
subject to such
limitations as may be provided by law as well as
reasonable conditions imposed by public officials in
custody of said records like the payment of the
expenses of reproduction of public documents; the
request must be done during office hours, etc.

42
66. May the COMELEC be compelled to
publish the names of the nominees of the
different party-list groups for the May 14, 2007
elections despite the prohibition on such
publication as embodied by the Party-List Act?

1.

YES, the COMELEC must publish the


same despite the prohibition in the law. Such
prohibition violates the right to information on
matters of public concern on the part of the
citizen. (BANTAY REPUBLIC VS. COMELEC, MAY 4,
2007)

2.

67. May the President validly prohibit


members of her Cabinet as well as other officers
in the executive department from attending
investigations in aid of legislation by Congress?
No. Such would violate the right of the people
to information on matters of public concern. It is only
through said investigations that the people will be
informed of the workings of the different departments
of the government. (SENATE OF THE PHILIPPINES,
represented by SENATE PRESIDENT FRANKLIN
DRILON, ET AL., VS. EXEC. SEC. EDUARDO
ERMITA, ET AL., G.R. No. 16977, April 20, 2006 )
68. May a Barangay validly exercise the
power of eminent domain?
Yes, subject to the approval by the President.
( Barangay Matictic vs. Elbinias, 148 SCRA 83)
69. What are the requisites before an
expropriator may validly obtain a writ of
possession
to take over possession of the
expropriated property?

70. Who determines the just compensation


in expropriation cases? What are the factors to
be considered in determining the same?
Determination of just compensation is a
judicial
function
with
the
assistance
or
recommendation
of
the
court-appointed
commissioners. (Manotok vs. CA, May 21,1987)
The factors to be considered in determining
the just compensation/market value are:
1.

2.

If the expropriation is for a National


government
projects
or
national
infrastructure projects, like those covered
by the Build-Operate-Transfer, RA 8974 shall
be followed. This means that there must be a
[a] Complaint for expropriation which is
sufficient in form and in substance; and [2]
the 100% of the market value of the property
sought to be expropriated must first be paid
to the owner of the property. (REPUBLIC OF
THE PHILIPPINES VS. JUDGE GINGOYON,
478 SCRA 474)
In ordinary expropriation cases, the rule is
that in the case of BIGLANG-AWA VS. JUDGE
BACALLA, 354 SCRA 562. It provides:

PURSUANT TO SECTION 2, RULE 67 OF THE


1997 RULES OF CIVIL PROCEDURE AND THE DOCTRINE
LAID DOWN IN THE ROBERN DEVELOPMENT CASE, THE
ONLY REQUISITES FOR THE IMMEDIATE ENTRY BY THE
GOVERNMENT IN EXPROPRIATION CASES ARE:
the

filing of a complaint for


expropriation sufficient in form
and substance; and
the making of a deposit equivalent
to the ASSESSED VALUE OF THE
PROPERTY
SUBJECT
TO
EXPROPRIATION.
3.

If the expropriation is being done by a Local


Government Unit, the Supreme Court decision
in the case of THE CITY OF ILOILO VS.
JUDGE LEGASPI, RTC 22, ILOILO CITY, 444
SCRA 269, shall be complied with:

cost

of

acquisition;

It depends:
1.

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

2. the current
value of like properties;
3. its actual or
potential uses;
4.
particular
case of lands;
5.
their
size,
shape, location; and
6.
the
tax
declarations thereon.
Finally, note that as held in the case of
Republic vs. Santos, 141 SCRA 30, the market value
as recommended by the board of commissioners
appointed by the court were at best only ADVISORY
AND PERSUASIVE AND BY NO MEANS FINAL OR
BINDING. (BERKENKOTTER, INC. VS. COURT OF
APPEALS AND REPUBLIC OF THE PHILIPPINES,
December 14, 1992).
71. What are the requisites of taking
in expropriation cases?
The Requisites of taking are:
a.
b.
c.
d.
e.

the expropriator must enter the property;


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

43
72. May a private property already used
as a private cemetery be expropriated for
another public purpose?

investigation in any form shall


be conducted except in the
presence of his counsel or after
a valid waiver has been made;

No, a private property which is already


devoted to public use may not be expropriated for
another public purpose. (City of Manila vs. Chinese
Community, 40
Phil. 349).

6.

The person arrested must be


informed that, at any time, he
has the right to communicate or
confer by the most expedient
means---telephone, radio, letter
or messenger---with his lawyer
(either retained or appointed),
any member of his immediate
family; or any medical doctor,
priest or minister chosen by him
or by any one from his
immediate family or by his
counsel, or be visited by/confer
with duly accredited national or
international non-governmental
organization. IT SHALL BE THE
RESPONSIBILITY
OF
THE
OFFICER TO ENSURE THAT THIS
IS ACCOMPLISHED;

7.

He must be informed that he has


the right to waive any of said
rights provided it is made
voluntarily,
knowingly
and
intelligently and ensure that he
understood the same;

8.

In addition, if the person


arrested waives his right to a
lawyer, he must be informed
that it must be done in writing
AND in the presence of counsel,
otherwise, he must be warned
that the waiver is void even if he
insist on his waiver and chooses
to speak;

9.

That the person arrested must


be informed that
he may
indicate in any manner at any
time or state of the process that
he does not wish to be
questioned with the warning
that once he makes such
indication, the police may not
interrogate him if the same had
not yet commenced, or the
interrogation has begun;

72-a. In case the government will not be


able to use the land expropriated for the
purpose for which it was intended, may the
landowner ask for its reversion to him?
Yes, provided he complies with the following:
1. Return the just compensation paid by
the government;
2. pay the legal interest;
3. pay the necessary expenses incurred
by the government in maintaining
the lot; and
4. pay the pecuniary value of the
services in managing it to the extent
that the landowner will be benefited
thereby.
(MACTAN
CEBU
INTERNATIONAL
AIRPORT
AUTHORITY
VS.
LOZADA,
February 25, 2010)
73. What are the rights of a person
under
custodial
investigation
under
the
Mahinay Doctrine or the Expanded Miranda
Doctrine?
The rights are:
1.

2.

The person arrested, detained,


invited
or
under
custodial
investigation must be informed
in a language known to and
understood by him of the reason
for the arrest and he must be
shown a copy of the warrant of
arrest, if any; Every other
warnings,
information
or
communication must be in a
language
known
to
and
understood by said person;
He must be warned that he has
the right to remain silent and
that any statement he makes
may be used as evidence
against him;

3.

He must be informed that he has


the right to be assisted at all
times and have the presence of
an independent and competent
lawyer, preferably of his own
choice;

4.

He must be informed that if he


has no lawyer or cannot afford
the services of a lawyer, one will
be provided for him; and that a
lawyer may also be engaged by
any person in his behalf, or may
be appointed by the court upon
petition of the person arrested
or one acting in his behalf;

5.

That whether or not the person


arrested has a lawyer, , he must
be informed that no custodial

10. The person arrested must be


informed that his initial waiver of
his right to remain silent, the
right to counsel or any of his
rights does not bar him from
invoking it at any other time
during the process, regardless of
whether he may have answered
some questions or volunteered
some information or statements;
11. He must be informed that any
statement OR EVIDENCE, as the
case may be, obtained in
violation of any of the foregoing,
whether
inculpatory
or
exculpatory, in whole or in part,
SHALL BE INADMISSIBLE IN
EVIDENCE.
under

74. What are the rights of a person


custodial detention or
for one

44
suspected or arrested as a terrorist under the
Human Security Act?
The rights of an accused under the AntiTerrorism Act are embodied under Section 21 thereof
which states:
Section 21. Rights of a person
under custodial detention.- The moment a
person charged with or suspected of the
crime of terrorism or the crime of conspiracy
to commit terrorism is apprehended or
arrested and detained, he shall forthwith be
informed by the arresting police or law
enforcement officers to whose custody the
person concerned is brought, of his or her
right:
1. to be informed of the nature
and cause of his arrest, to
remain silent and to have
competent and independent
counsel preferably of his
own choice. If the person
cannot afford the services
of counsel of his or her
choice, the police or law
enforcement
officers
concerned
shall
immediately contact the
free legal assistance unit of
the IBP or the Public
attorneys office (PAO). It
shall be the duty of the free
legal assistance unit of the
IBP or the PAOs thus
contacted to immediately
visit the person detained
and provide him with legal
assistance. These rights
cannot be waived except in
writing and in the presence
of the counsel of choice;
2. informed of the cause or
causes of his detention in
the presence of his legal
counsel;
3. allowed to communicate
freely with his legal counsel
and to confer with them at
any time without restriction;
4. allowed to communicate
freely and privately without
restrictions
with
the
members of his family or
with his nearest relatives
and be visited by them; and
5. allowed freely to avail of the
services of a physician or
physicians of choice.
75. Are the above rights available to a
suspect if he is under investigation by a private
person?
No. (THE PEOPLE OF THE PHILIPPINES VS.
JOSE TING LAN UY, JR., et al., 475 SCRA 248). The claim
that his affidavit is inadmissible in evidence in
accordance with section 12 [1] of the Bill of Rights is
not tenable. The investigation under said provision
refers to custodial investigation where a suspect has
already been taken into police custody and that the
investigating officers begin to ask questions to elicit
information and confessions or admissions from the
suspect. Succinctly stated, custodial investigation
refers to the critical pre-trial stage when the

investigation ceases to be a general inquiry into an


unsolved crime but has began to focus on a particular
person as a suspect (People vs. Duenas, Jr., 426 SCRA
666). Clearly, therefore, the rights enumerated
by the accused are not available BEFORE
GOVERNMENT
INVESTIGATORS
ENTER
THE
PICTURE. The protective mantle of section 12, article
III does not apply:
[1] to administrative investigations (People vs.
Judge Ayson, 175 SCRA 216);
[2] confession to a private individual (Kimpo
vs. CA, 232 SCRA 53);
[3] verbal admission made to a radio
announcer who was not a part of the investigation
(People vs. Ordono, 334 SCRA 673);
[4] or even to a Mayor approached as a
personal confidante and not in his official capacity
(People vs. Zuela, 323 SCRA 589).
[5] In fact, even a videotaped interview where
the accused willingly admit his guilt in the presence of
newsmen is not covered by the said provision though
the trial courts were warned by the supreme Court to
take extreme caution in admitting similar confessions
because of the distinct possibility that the police, with
the connivance of unscrupulous media practitioners,
may attempt to legitimize coerced extrajudicial
confessions and place them beyond the exclusionary
rule by having an accused admit an offense on
television (People vs. Endino, 353 SCRA 307).
76. When is custodial investigation
deemed to have started so as to entitle the
suspect to be informed of his rights under the
Mahinay Doctrine or the Expanded Miranda
Doctrine? How about if the suspect is walking
towards the police station with the policemen
who invited him to the police station, is he
entitled to be informed of his rights already if
the latter will ask him questions regarding the
commission of a crime where he is the suspect?
Custodial investigation begins when it is no
longer a general inquiry into an unsolved crime but
starts to focus on a particular person as a suspect, i.e.,
when the police investigator starts interrogating or
exacting confession from the suspect in connection
with an alleged offense.
THE PLACE OF INTERROGATION IS NOT
DETERMINATIVE OF THE EXISTENCE OR ABSENCE
OF CUSTODIAL INVESTIGATION BUT THE TONE
AND MANNER OF QUESTIONING BY THE POLICE
AUTHORITIES. Thus, there was custodial investigation
when the police authorities, upon their arrest of some
of the accused, immediately asked them regarding
their participation in the commission of the crime ,
even while they were still walking along the highway
on their way to the police station. (PEOPLE VS.
BARIQUIT, 341 SCRA 600)
77. Are spontaneous admissions made
before a person could be informed of his rights
during custodial investigation admissible as
evidence?
Yes.
Spontaneous
statements
voluntarily given, as where appellant orally
admitted killing the victim before the
barangay captain (who is neither a police
officer nor a law enforcement agent), do not
fall under custodial investigation. Such

45
admission, even without the assistance of a
lawyer,
does
not
violate
appellants
constitutional
rights
AND
THEREFORE
ADMISSIBLE IN EVIDENCE. (PEOPLE VS.
DANO, G.R. NO. 117690, 339 SCRA 515,
SEPT. 1, 2000; PEOPLE VS. MAYORGA,
G.R. NO. 135405, 346 SCRA 458,
NOVEMBER 29, 2000).
78. What are the requisites before an
extrajudicial confession is admissible?
To be admissible in evidence, an
extrajudicial confession
must be: (i)
voluntary; (ii) made with the assistance of
competent and independent counsel; (iii)
express; and (iv) in writing.
A suspects confession, whether
verbal or non-verbal, when taken without the
assistance of counsel, without a valid waiver
of such assistance, regardless of the absence
of coercion or the fact that it had been
voluntarily given, is inadmissible in evidence,
even if appellants confession were gospel
truth. (PEOPLE VS. DANO, G.R. NO.
117690, 339 SCRA 515, SEPT. 1, 2000;
PEOPLE VS. SAMOLDE, G.R. NO. 128551,
336 SCRA 632, JUL. 31, 2000).

interrogation should be of the latter's own choice, not


one foisted on him by the police investigators or other
parties. In this case, the former judge whose
assistance was requested by the police was evidently
not of Marcos Jimenez' own choice; she was the police
officers' own choice; she did not ask Marcos if he was
willing to have her represent him. This is not the mode
of solicitation of legal assistance contemplated by the
Constitution. Furthermore, the former judge was not
present when Marcos was being interrogated by the
police. While she asked him if he had voluntarily given
the statements contained in the typewritten document,
this is far from being substantial compliance with the
constitutional duty of police investigators during
custodial interrogation.
81. Is the extrajudicial confession of a
suspect obtained without the assistance of a
lawyer, but speaks of gospel truth, admissible in
evidence?
No. In PEOPLE VS. GALIT, 135 SCRA 465,
PEOPLE VS. PANFILO CABILES, 284 SCRA 199; and
PEOPLE VS. TAN, 286 SCRA 207, it was held that even
if the confession of the accused speaks the truth, if it
was made without the assistance of counsel, it is
inadmissible in evidence regardless of the absence of
coercion or even if it was voluntarily given.
In order that a confession is admissible, the
following requisites must be present:

To be admissible in
evidence, an extrajudicial confession
must be: (i) voluntary; (ii) made with
the assistance of competent and
independent counsel; (iii) express;
and (iv) in writing.
A
suspects
confession,
whether verbal or non-verbal, when
taken without the assistance of
counsel, without a valid waiver of
such assistance, regardless of the
absence of coercion or the fact that
it had been voluntarily given, is
inadmissible in evidence, even if
appellants confession were gospel
truth.
79. Is the presence of a lawyer to assist
the suspect during custodial investigation
sufficient to comply with the requirements of
the Constitution?
No. As held in
PEOPLE VS.
PATUNGAN, 354 SCRA 413, the mere presence of a
lawyer is not sufficient compliance with the
constitutional requirement of assistance of counsel.
Assistance of counsel must be effective, vigilant and
independent. A lawyer who could just hear the
investigation going on while working on another case
hardly satisfies the minimum requirements of effective
assistance of counsel. Not only was the accused
subjected to custodial investigation without counsel,
he was likewise denied effective assistance of counsel
during the taking of his extra-judicial confession.
80. From what time must the counsel
assist
the
suspect
during
custodial
investigation? Who must select such counsel?
In PEOPLE V. JIMENEZ, G.R. No. 82604.
December 12, 1991, it was held that the counsel
must be present from the inception of the custodial
investigation not at any time thereafter. Also, the
lawyer who assists the suspect under custodial

a.
b.
c.
d.

the confession must be voluntary;


the confession must be made with
the assistance of a competent and
independent counsel;
the confession must be express; and
the confession must be in writing.

The above requirements, however, are not


applicable when the suspect makes an spontaneous
statement, not elicited through questioning by the
authorities, BUT GIVEN IN AN ORDINARY MANNER
WHEREBY THE ACCUSED ORALLY ADMITTED HAVING
COMMITTED THE CRIME. This was the decision of the
Supreme Court in the case of PEOPLE VS. ANDAN,
March 3, 1997 when the accused made a voluntary
and verbal confession to the Municipal Mayor that he
committed the crime imputed to him. As such, his
uncounselled confession is admissible in evidence.
82. What are the two (2) kinds of
coerced or involuntary confessions under
Section 12, Art. III of the Constitution?
The two (2) kinds of involuntary or coerced
confessions under Art. III, Section 12 of the
Constitution. These are:
a.
b.

confession which are the product of third


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

83. What is the status


confessions as evidence in court?

of

coerced

Coerced or involuntary confessions are


inadmissible as evidence being the fruit of the
poisoned tree.
84. Is the right to counsel satisfied if the
suspect was assisted by the Station Commander
of the Western Police District while he was being

46
investigated by the policemen of the same
station? How about if the investigation is being
conducted by the NBI and the suspect was
ordered assisted by a lawyer-applicant therein?
There is no compliance of the constitutional
requirement of competent and independent counsel to
assist an accused during custodial investigation when
the accused was assisted by the Station Commander
of the WPD, Atty. De los Reyes, while being
investigated by other policemen of the same police
station because the interest of the police is naturally
adverse to the accused. In fact, the SC in the case of
PEOPLE VS. JANUARIO, 267 SCRA 608 held that a
lawyer applying for a position in the NBI could not
validly assist an accused being investigated then by
the NBI. (PEOPLE VS. OBRERO, 332 SCRA 190)
85. Is the right to counsel available to a
suspect during a police line-up?
The Supreme Court had conflicting decisions
on this aspect but ended up with the rule that since
the accused will not be made to make any testimony
or statement during the police line-up, then he is not
under custodial investigation and therefore, there is no
need for him to be assisted by a lawyer. ( P vs.
Usman Hassan, 157 SCRA 261; Gamboa vs. Judge
Cruz, 162 SCRA 642; DE LA TORRE VS. CA, 294
SCRA 196 and PEOPLE VS. HATTON)
86.
Is
there
a
valid
custodial
investigation if the lawyer who assisted him
during custodial investigation is a public
attorney who was not chosen by the accused
himself but given to him free of charge? Could
the Fiscal also represent the accused during
custodial
investigation
to
satisfy
the
requirement of the Constitution that the
accused is assisted by counsel?
The counsel must be the choice of the
accused or suspect. (P. vs. Alegria, September 28,
1990) Also, the Fiscal could not have protected the
rights of the suspect, even if they are known to each
other, since the Fiscal is there for the private
complainant. (P. vs. Matos-Viduaya, September 11,
1990)
86-a. The appellants were arrested by
the PAOCTF for Kidnapping and Murder of two
(2) minor children of a businessman from
Bulacan. While under custodial investigation by
Col. Cesar Mancao, the lawyers given to assist
them tare the lawyers of PAOCTF. Was the
confessions obtained during the custodial
investigation admissible in evidence?
Yes. As held in the case of PEOPLE OF THE
PHILIPPINES VS. DOMINGO REYES, ET AL., G.R.
No. 178300, March 17, 2009, the Supreme Court
held that since the evidence shows that the lawyers of
PAOCTF assisted them from the start up to the end of
their custodial investigation and that their rights were
protected, the same is admissible as evidence
especially so that there is no evidence of compulsion.
86-b.
What
are
the evidence
of
voluntariness in the suspects extrajudicial
confession making it admissible in evidence?
May such confession be used against a coaccused? Up to what extent?
In People vs. Pia, 229 Phil. 577 and
PEOPLE VS. REYES, G.R. No. 178300, March 17,
2009, the Supreme Court enumerated the following as

evidence of voluntariness
confession of a suspect:

in

the

extrajudicial

Their physical examination reports certify that


no external signs of physical injury or any form of
trauma were noted during their examination
In
People v. Pia, we held that the following factors
indicate voluntariness of an extra-judicial confession:
(1) where the accused failed to present
credible evidence of compulsion or duress or
violence on their persons;
(2) where they failed to complain to the
officers who administered the oaths;
(3) where they did not institute any
criminal or administrative action against their
alleged intimidators for maltreatment;
(4) where there appeared to be no
marks of violence on their bodies; and
(5) where they did not have themselves
examined by a reputable physician to buttress
their claim.
It should also be noted that the extra-judicial
confessions of appellants Arnaldo and Flores are
replete with details on the manner in which the
kidnapping was committed, thereby ruling out the
possibility that these were involuntarily made. Their
extra-judicial confessions clearly state how appellants
and their cohorts planned the kidnapping as well as
the sequence of events before, during and after its
occurrence. The voluntariness of a confession may be
inferred from its language if, upon its face, the
confession exhibits no suspicious circumstances
tending to cast doubt upon its integrity, it being
replete with details which could only be supplied by
the accused.
With respect to appellant Reyess claim that
the extra-judicial confessions of appellants Arnaldo and
Flores cannot be used in evidence against him, we
have ruled that although an extra-judicial confession is
admissible only against the confessant, jurisprudence
makes it admissible as corroborative evidence of other
facts that tend to establish the guilt of his co-accused .
In People v. Alvarez ,
we ruled that where the
confession is used as circumstantial evidence to show
the probability of participation by the co-conspirator,
that confession is receivable as evidence against a coaccused
86-c. If a lawyer applying for a position in the
NBI will be the one to assist during the custodial
investigation of a person arrested by the NBI, is his
confession admissible in evidence?
No. There is violation of the constitutional
right to a competent and independent counsel of his
own choice. (PEOPLE VS. JUANERIO, 267 SCRA
608)
86-d. Is the right to counsel during
custodial investigation carries with it the
obligation of preventing the
suspect from
admitting the commission of a crime or
incriminating himself?
No. The presence of a lawyer during custodial
investigation is not intended to stop an accused from
saying anything which might incriminate him; but
rather, it was adopted in our Constitution to preclude
the slightest coercion on the accused to admit
something else. THE COUNSEL SHOULD NEVER
PREVENT
AN
ACCUSED
FROM
FREELY
AND
VOLUNTARILY TELLING THE TRUTH. (PEOPLE VS.

47
BASE, 385 Phil. 803 (2000) and reiterated in
People vs. Domingo Reyes.
87. If the extrajudicial admission or
confession
of
the
accused
is
declared
inadmissible as evidence, must the accused be
acquitted as a matter of right?
If there is no other evidence aside from the
extrajudicial confession, yes, as held by the Supreme
Court in People vs. Galit, supra. However, if there are
other evidence to prove his guilt beyond reasonable
doubt, no. In PEOPLE VS. ROLANDO FELIXMINIA y
CAMACHO, GR No. 125333, March 20, 2002, the
Supreme Court held that though the extrajudicial
confession of the accused was declared inadmissible
for violation of his right to counsel, if there are
evidence sufficient to prove his guilt beyond
reasonable doubt, like circumstantial evidence, then
he can still be convicted of the crime charged. This is
so because [1] the compromising circumstances
were duly proven which were consistent with
each other and which lead with moral certainty
to the conclusion that he was guilty of the crime
charged;
and
[2]
the
totality
of
such
circumstances eliminated beyond doubt the
possibility of his innocence. In People vs.
Mahinay, it was held that conviction may be had on
circumstantial evidence provided the following
requisites are present: [a] there is more than one
circumstance; [b] the facts from which the
inferences are derived are proven; and [c] the
combination of all circumstances is such as to
produce a conviction beyond reasonable doubt.
88. May a convicted person be released
from jail through recognizance?
No. In
ATTY. JULIANA ADALIMWHITE VS. JUDGE ARNULFO BUGTAS, RTC 2
BORONGAN, SAMAR, 475 SCRA 175, it was held
that respondent Judge is guilty of gross ignorance of
the law for ordering the release of Bagaporo pending
the approval of his application for parole and before
the completion of the minimum period of the sentence
imposed upon him. It is patently erroneous to release a
convict on recognizance. Section 24, Rule 114 provides
that there shall no bail for a convict after final
judgment. The only exception is when the convict
applies for Probation before he commences to serve
his sentence and that the offense and the penalty for
the offense is within the purview of the Probation Law.
.
Sections 5 and 16 of Rule 114 of the Rules of
Court (on the different kinds of bail) APPLIES ONLY TO
AN
ACCUSED
UNDERGOING
PREVENTIVE
IMPRISONMENT DURING TRIAL OR ON APPEAL. THEY
DO NOT APPLY TO A PERSON CONVICTED BY FINAL
JUDGMENT AND ALREADY SERVING SENTENCE.
89. May a judge require cash bond
only?
No. The Rules provide for four (4) ways of
posting bond (cash, property, surety and recognizance)
and it is grave abuse of discretion on the part of the
judge to require cash bond only. (Almeda vs. Villaluz,
66 SCRA 38).
90. May an accused charged of a capital
offense and the evidence of guilt is strong be
granted bail?
Yes. It is a matter of discretion on the part of
the court. The purpose of the bond is to assure the
court of the presence of the accused during the trial of

his case. If the probability of flight is nil, then the


accused may be allowed to post bail. (BELTRAN VS.
THE SECRETARY OF JUSTICE, April, 2007)
91. May a person subject of extradition
from another country and where the cases
against him in said country are bailable, be
allowed to post bail pending the extradition
hearings?
No. As held in UNITED STATES VS.
JUDGE PURUGGANAN & MARK JIMENEZ , 389
SCRA 623 through former Chief justice Panganiban,
the Supreme Court held that a person facing
extradition proceedings is not entitled to bail even if
the crime he was charged of in a foreign country is
bailable. This is so because the constitutional provision
on the right to bail under Art. III of the 1987
Constitution applies only to criminal cases, not in
extradition proceedings. (EDUARDO RODRIGUEZ
VS. THE PRESIDING JUDGE, RTC 17, MANILA, 483
SCRA 290). This is so because of the possibility
of flight.
BUT IN THE CASE OF GOVERNMENT OF
HONGKONG VS. OLALIA, 521 SCRA 470, it was
held that the potential extraditee may be granted
bail if :
[1] he can prove by clear and convincing
evidence that he is not a flight risk; and
[2] will abide with all the orders and
processes of the extradition court. Clear and
convincing evidence is an evidence
with a
standard lower than proof beyond reasonable
doubt but
more than
preponderance
of
evidence.
92.
In
extradition
cases,
is
the
respondent therein entitled to notice and
hearing before the issuance of a warrant of
arrest against him?
No. In SECRETARY OF JUSTICE VS. JUDGE
LANTION, 322 SCRA 160 (The Mark Jimenez Case) , the
Supreme Court on a 9-6 vote held that the extraditee
is entitled to notice and hearing when a request for
extradition by another country is still being evaluated.
However, on Motion for Reconsideration in the same
case, in a 9-6 decision, the Supreme Court held that
the prospective extraditee is not entitled to notice and
hearing while his case is still under evaluation because
this would defeat the purpose of the arrest warrant
since it could give warning that respondents would be
arrested and even encourage them to flee but entitled
to notice and hearing if the case is already filed in
court. However, if bail was granted to an extradite, the
same may not be cancelled without notice and
hearing. Otherwise, his right to due process will be
violated.
(EDUARDO
RODRIGUEZ
VS.
THE
PRESIDING JUDGE, RTC 17, MANILA, 483 SCRA
290)
93. What is the EQUIPOISE RULE?
If the evidence in a criminal case is evenly
balanced, the constitutional presumption of innocence
tilts the scale of justice in favor of the accused and he
should be acquitted from the crime charged. Where
the inculpatory facts and circumstances are capable of
two or more interpretations one of which is consistent
with the innocence of the accused and the other
consistent with his guilt, then the evidence does not
fulfill the test of moral certainty and is not sufficient to
support a conviction because of the accuseds

48
constitutional presumption of innocence.(PEOPLE VS.
DE LOS SANTOS, 355 SCRA 415)
94. May the court reverse the order of
trial in a criminal case?
No. such would violate the right of the
accused to presumption of innocence. To be required
to present his evidence first would be making him
prove his innocence and not the State proving his guilt.
(Alejandro vs. Pepito, 96 SCRA 322) However, if the
accused does not object to such a procedure, then a
reverse order of trial is allowed by the Rules. (Sacay
vs. Sandiganbayan, July 10,l986) In fact it should be
noted that under the newly adopted 1985 Rules of
Criminal Procedure (Sec. 3e), Rule 119)the said
procedure is now expressly sanctioned. Thus:
"However,
when the accused
admits the act or
omission charged
in the complaint or
information
but
interposes a lawful
defense, the order
of trial may be
modified
accordingly."
95. What is the extent of the obligation
of a counsel de oficio for an accused in a
criminal case?

accused, and after the latter had already filed a


Demurrer to Evidence with leave of court by the
previous judge?
No.
The
judge
committed
gross
ignorance of the law. It is also violative of the
right to impartial trial on the part of the
accused. (GACAYAN VS. JUDGE PAMINTUAN,
September 17, 1999)
97. When may speedy trial be raised
by the accused to cause the dismissal of his
case? What kind of delays must occur before the
same could be invoked?
In JAIME BERNAT VS. SANDIGANBAYAN, May
20, 2004, it was held that the right to speedy trial is
violated only if the proceedings were attended by
vexatious, capricious and oppressive delays. The
determination of whether the delays are of said nature
is relative and cannot be based on mere mathematical
reckoning of time. Particular regard to the facts and
circumstances of the case. As held in the case of DE LA
PENA VS. SANDIGANBAYAN, certain factors shall be
considered and balanced to determine if there is delay,
as follows:
Length of the delay;
Reasons for the delay;
Assertion or failure to assert
such right by the accused;
and
Prejudiced caused by the delay.

While an accused may be given a counsel de


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

There is no violation of the right to speedy


disposition of his case because petitioner failed to
assert his constitutional right to a speedy disposition of
his case. During the 8-year period prior to April 19,
2002, petitioner did not complain about the long delay
in deciding his case.

96. If the accused has the right


to be present during the trial of his case, can he
also refuse to appear during the hearings of his
case?

The determination of whether an accused had


been denied the right to speedy trial depends on the
surrounding circumstances of each case, not a
mathematical computation of the years, months and
days. Although it took about 8 years before the trial of
this case was resumed, such delay did not amount to
violation of petitioners right to speedy trial
considering that such delay was not attributable to the
prosecution.

No.
During
arraignment,
promulgation of the decision and when he is to be
identified by the witnesses for the prosecution, he
must be present. However, he can validly waive his
presence after arraignment when he state in open
court or in an affidavit that whenever a witness
mentions his name during the presentation of the
prosecutions evidence, he admits that he is the one
being
referred
to.
(Aquino
vs.
Military
Commission, 63 SCRA 546; P vs. Judge, 125
SCRA 269)
96-a. May a Judge direct the witnesses
for the prosecution to appear before him and
examined
them
anew
regarding
their
testimonies in a Homicide case, without notice
to the prosecution and the counsel for the

98. May the right to speedy disposition


of cases be invoked for the dismissal of cases
pending before quasi-judicial bodies like the
Office of the Ombudsman?
Yes, unreasonable delays like failure to decide
a complaint against the respondent for more than
three (3) years from the time all the pleadings were
filed
violates the respondents right to a speedy
disposition of his case and the case must be dismissed.
(DUTERTE VS. SANDIGANBAYAN, 289 SCRA 721;
ANGCHANGCO VS. OMBUDSMAN, 269 SCRA 301)

The factors to consider in determining


whether or not such right has been violated:
1.
2.
3.

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

49
(ii) Speedy Trial Act of 1998.
The authority of the Secretary of
Justice to review resolutions of his
subordinates
even
after
an
information has already been filed in
court
does
not
present
an
irreconcilable conflict with the 30-day
period prescribed in Sec. 7 of the
Speedy
Trial
Act
of
1998.
(SUMBANG VS. GEN. COURT
MARTIAL, G.R. NO. 140188, 337
SCRA 227, AUG. 3, 2000; BLANCO
VS. SANDIGANBAYAN, G.R. NOS.
136757 58, 346 SCRA 108, NOV.
27,
2000;
SOLAR
TEAM
ENTERTAINMENT,
INC.
HON.
HOW, G.R. NO. 140863, 338
SCRA 51, AUG. 22, 2000).
99. Was the failure of the court to have a
sign language expert to inform the accused
who is a deaf-mute of the contents of the
criminal information fatal to the validity of the
proceedings which resulted in the conviction of
the said accused?
Yes because the accused was denied of the
right to be informed of the nature and cause of the
accusation against him. As such, the entire
proceedings is null and void and another trial be
conducted in the presence of a sign language expert to
inform the accused of the proceedings. (Sales vs. CA,
164 SCRA 717; P vs. Crisologo, 150 SCRA 653)
100. In an Information for RAPE, is
there violation of the right to be informed of the
nature and cause of accusation against the
accused if the alleged rape took place
sometime from January 1990 up to December 6,
1998 or a period of almost nine (9) years,
without specifying the exact date when the
alleged rape took place?

None. The accused should have filed a Motion


for a Bill of Particular or a Motion to Quash. When he
failed to do any of the two (2), he is deemed to have
waived the defect in the information. Clearly, he
slumbered on his rights and awakened too late. Finally,
the date is not an element in rape cases. (PEOPLE
VS. JERRY NAZARENO, April 8, 2008)
100-a. May an accused in a Homicide
case be convicted of Murder without violating
his right to be informed of the nature and cause
of accusation against him?
Yes. Even if the Information was captioned
For: Homicide only but the body of the Information
alleges treachery or evident premeditation and the
same was read to the accused, he could be convicted
of Murder. This is so because it is the body of the
Information that is binding, not the caption thereof and
therefore, the accused was duly informed of the nature
and cause of accusation against him. (P vs.
Resavaga, 159 SCRA 426)
100-b. May an accused for alleged sale
of marijuana be convicted of possession of
marijuana without violating his right to informed
of the nature and cause of accusation against
him?
No. While no conviction for the unlawful sale
of prohibited drugs may be had under the present

circumstances, the established principle is that


possession of marijuana is absorbed in the sale
thereof, except where the seller is further
apprehended in possession of another quantity
of the prohibited drugs not covered by or
included in the sale and which are probably
intended for some future dealings or use by the
seller. (PEOPLE OF THE PHILIPPINES vs. CHAD
MANANANSALA, G.R. No. 175939, April 3, 2013)
The rule is that when there is a variance between the
offense charged in the complaint or information, and
that proved or established by the evidence, and the
offense as charged necessarily includes the offense
proved, the accused shall be convicted of the offense
proved included in that which is charged. According to
Section 5, Rule 120, Rules of Court (1985), the rule
then applicable, an offense charged necessarily
includes that which is proved, when some of the
essential elements or ingredients of the former, as this
is alleged in the complaint or information, constitute
the latter.
101. What is the effect of the testimony
of a witness who did not return to court for his
cross examination? How about if there is only
partial cross-examination?
A witness who did not return to court for his
cross-examination would render his entire testimony
inadmissible for being hearsay. It likewise violated the
right of confrontation on the part of the accused.
(Ortigas, JR. vs. Lufthansa, 64 SCRA 610; DELA CRUZ
VS. PAPA, December 8, 2010) If the witness was
partially examined, only the portion of his direct
testimony where he was cross-examined shall be
admissible as evidence.( P vs. Seneris, 99 SCRA
92).
102. What are the requisites of a valid
trial in absentia? May an accused who jumped
bail after arraignment be validly convicted by
the trial court?
The requisites of a valid trial in absentia are
the following:
The accused was duly arraigned;
The accused was notified of the
hearing; and
The accuseds absence [during the
trial] is unjustifiable.
103. May an accused compel the trial
court to issue subpoena to a Physician who is
already working in the United States to testify
on his treatment of the accused? Would the
failure of said witness to appear and testify for
the accused violates his right to subpoena
witnesses and the production of evidence in his
favor?
No. Such witness is beyond the jurisdiction of
the Philippine Courts. Further, his right to subpoena
witnesses and the production of evidence will not be
violated since the hospital could produce said records
and another physician could testify on the contents
thereof. (Cavili vs. Hon. Florendo, 154 SCRA 610;
Fajardo vs. Garcia, 98 SCRA 514)
104. May the accused be presented by
the prosecution as the latters witness?
accused

No. Such would violate the right of the


against self-incrimination and if such

50
happened, the proceedings shall be null and void.
(Chavez vs. CA, 24 SCRA 663)

Injection is the most humane way of implementing the


death penalty.

105. Generally, to what kind of evidence


does
the
right
against
self-incrimination
applies?

111. What are the requisites before an


accused may validly invoke double jeopardy?

Generally,
it
applies
only
to
testimonial compulsion. As such, forcing a person to
give a sample of his urine to determine whether a
woman is pregnant (Villaflor vs. Summers, 41 Phil. 62);
whether a person is suffering from sexually
transmitted disease (US vs. Tang Teng, 23 Phil. 145) or
under the influence of prohibited drugs (PEOPLE VS.
BANIHIT, G.R. NO. 132045, 339 SCRA 86, AUG. 25,
2000; PEOPLE VS. CONTINENTE, G.R. NOS. 100801- 02,
339 SCRA 1, AUG. 25, 2000) does not violate the
persons right against self-incrimination. Likewise
forcing one to try a pair of shoes, pants or shirt does
not fall under the above proscription.
106. How about forcing a person to give
a sample of his handwriting?.
Though the same does not require testimonial
compulsion, the right against self-incrimination will be
violated by said act. This is so because it involves the
use of the intelligence of the person. (Beltran vs.
Samson, 50 Phil. 570)
107. Does the right against
incrimination
applicable
to
civil
administrative cases also?

selfand

Yes but unlike in criminal cases where the


accused could not be presented by the prosecution
and his right not to take the witness stand is absolute,
an adverse party in a civil or administrative cases may
be presented by the other party but could refuse to
answer only if the question propounded calls for an
incriminatory answer.
108. May a court stenographer who had
resigned from the government be compelled to
transcribe her notes under pain of contempt
without violating her right against involuntary
servitude?
Yes. This is so because the testimony was
taken while she was still in the government and as
such, it was her obligation to transcribe the same,
having received her salary for the day when the
testimony was taken. (Aclaracion vs. Gatmaitan, 64
SCRA 131)
109. Is
abolished by the

the Death Penalty


1987 Constitution?

already

While the Supreme Court answered the same


in the affirmative in the cases of P vs. Gavarra, 155
SCRa 327; P vs. Masangkay, 155 SCRA 113; P vs.
Atencio, 156 SCRA 242; P vs. Intino, September 26,
1988 it held in People vs. Munoz, 170 SCRA 107, that
it was merely suspended.
110. Is death as a penalty a cruel or
unuasual
punishment?
No. (P vs. Estoista, 93 Phil. 647). It is only
when the punishment is shocking to the conscience of
the community and disproportionate to the offense
charged that the penalty becomes cruel and unusual.
In fact, the Supreme Court held in ECHEGARAY VS.
SECRETARY OF JUSTICE that death through Lethal

There is double jeopardy


when there is:
[1] valid complaint of
information;
[2] filed in a court of
competent jurisdiction;
[3] the accused was validly
arraigned; and
[4] the accused
was convicted or acquitted,
or the case was dismissed
or otherwise terminated
without the express consent
of the accused. (PEOPLE
(PEOPLE VS.
ALMARIO, 355 SCRA 1)
112. If the dismissal was
express consent of the accused,
dismissal result in double jeopardy?

with
may

the
the

Yes in two (2) instances.


As
a
general
rule, if the
dismissal is
through the
instance of
the accused
or with his
express
consent,
there is no
double
jeopardy.
However,
this
rule
admits
of
two
(2)
exceptions:
1)

the
motion
to
dismiss
is
based
on
insuffici
ency of
evidenc
e or
Demurr
er to
Evidenc
e; and
2) the motion
to dismiss is based
on the denial of the
accuseds right to
speedy trial.
trial.
(PEOPLE VS.
ALMARIO, 355 SCRA
1)
-double jeopardy has set in. In these two (2)
instances, the correct description of what happened is

51
that the accused was acquitted and not the case
was dismissed with his consent.
It must be pointed out, however, that in
PEOPLE VS. TAMPAL, 244 SCRA 202 and PEOPLE
VS. LEVISTE, 255 SCRA 238, the SC reversed the
dismissal of the criminal case by the trial court based
on speedy trial since the same was not predicated
on the clear right of the accused to speedy trial. It is
only when there is a clear violation of the accuseds
right to speedy trial that the dismissal results in double
jeopardy.
112-a. The accused was arrested with an
unlicensed firearm in Mabalacat, Pampanga. He
was charged for violation of PD 1866 with the
RTC of Pampanga in an Information signed by
the City Prosecutor of Angeles City. At the
middle of the trial, the Judge dismissed the case
without the consent of the accused. When
another information for the same offense was
filed by the Provincial prosecutor of Pampanga,
the accused moved for the dismissal of the 2nd
case based on double jeopardy. Decide.
Double jeopardy has not set in because the
first requisite of valid complaint or information is not
present. The City Prosecutor of Angeles City has no
jurisdiction to file an information for an offense that
took place in Mabalacat, Pampanga. (CUDIA VS. CA,
284 SCRA 173)
113. The accused was charged of theft
of electricity based on the City Ordinance of
Batangas City. After arraignment, the case was
dismissed because it was found out that the
same has prescribed because it was filed after
more than 60 days. The Fiscal filed another
information based on the Revised Penal Code.
Has double jeopardy set in?
Yes. If the accused was charged of theft of
electricity based on the City Ordinance of Batangas
and not based on the Revised Penal Code and later on
the case is dismissed by the judge due to the fact that
the crime has prescribed, the government can no
longer charge the accused of the same crime under
the Revised Penal Code since double jeopardy has set
in. If an act is punished by law and an ordinance,
acquittal or conviction in one shall bar prosecution
from the other. (PEOPLE VS. RELOVA, 148 SCRA
292)
114. The accused was charged of grave
coercion before the MTC and was duly
arraigned. The Judge dismissed it without any
motion form the accused because the case is
allegedly outside the MTCs jurisdiction. Another
information for the same offense was filed with
the RTC which was likewise dismissed because
of lack of jurisdiction. As such, the Fiscal filed a
3rd information for grave coercion before the
MTC. The accused pleaded double jeopardy. Is
he correct?
Yes. Since the accused was already arraigned
in the 1st information before the MTC which has
jurisdiction over the same and the case was
subsequently dismissed without his express consent,
then double jeopardy has set in.
115. The accused was arraigned of
homicide and entered a plea of guilty but prayed
that he be given the chance to prove incomplete
self-defense which the court granted. After
presenting his evidence to prove incomplete

self-defense, the court acquitted him because


what was allegedly proven by him was complete
self-defense. May the accused validly invoke
double jeopardy if the Prosecutor moves for the
reinstatement of the case for him to present the
evidence of the prosecution?
No because one of the requisites of double
jeopardy is missing. There was no valid arraignment.
This is so because his plea was one of guilty and yet,
he was acquitted. In this case, he has to be rearraigned for him to enter a plea of not guilty in
order that he could be validly acquitted.(PEOPLE VS.
BALISACAN, 17 SCRA 1119)
116. The accused was convicted of
frustrated murder. Within 15 days from
promulgation, he filed a Motion for New Trial
based on a newly-discovered evidence which
was granted by the court. After the presentation
of the alleged newly-discovered evidence, the
accused was acquitted. May the prosecution
appeal the acquittal since the evidence
presented was not really a newly-discovered
evidence but a forgotten one and that even
assuming that the same is a newly-discovered
evidence, it was insufficient to overturn the
evidence of guilt as proven by the prosecution.
In the case of P vs. Judge Hernando, 108
SCRA 121, the Supreme Court held that indeed, the
evidence presented was not newly-discovered
evidence and that assuming it to be so, it was not
sufficient to overturn the evidence of guilt as shown by
the prosecutions evidence. However, though the
decision was erroneous, double jeopardy has set in and
the government could no longer appeal the decision.
So even if the court obviously erred in the appreciation
of the evidence resulting in a decision of acquittal
instead of conviction, appeal would put the accused in
double jeopardy. (Mazo vs. Mun. Court, 113 SCRA 217)
117. May the government appeal a
judgment of acquittal or for the increase of the
penalty imposed?
As a general rule, No since double jeopardy
has set in. (PEOPLE VS. HON. VELASCO, G.R. NO.
127444, 340 SCRA 207, SEPT. 13, 2000). As
mandated by the Constitution, statutes and cognate
jurisprudence, an acquittal is final and unappealable
on the ground of double jeopardy, whether it happens
at the trial court of a judgment of acquittal brought
before the Supreme Court on certiorari cannot be had
unless there is a finding of mistrial, as in Galman vs.
Sandiganbayan.
However, if the accused was the one who
appealed the decision of the CFI convicting him of
homicide (though he was charged of murder), the
appellate court may convict him of murder if the
evidence warrants and that the lower court misappreciated the evidence. This is so because if the
accused appeals the decision, the same will be subject
to a complete re-examination of the evidence on
record. (PEOPLE VS. DOMINGO, March 2, 2009)
Please take note, however, that in the case of
[1] ARTEMIO VILLAREAL VS. PEOPLE OF THE
PHILIPPINES, G.R. No. 151258, February 1,
2012 ; [2] PEOPLE OF THE PHILIPPINES VS. THE
HOMORABLE COURT OF APPEALS, et al., G.R. No.
154954, February 1, 2012; [3] PEOPLE OF THE
PHILIPPINES
VS.
SANDIGANBAYAN,
IMELDA
MARCOS, JOSE CONRADO BENITEZ and GILBERT

52
DULAY, G.R. No. 153304-05, February 7, 2012;
and [4] YSIDORO VS. HON. TERESITA CASTRO,
February 6, 2012, the Supreme Court held that a
PETITION FOR CERTIORARI UNDER RULE 65 IS
ALLOWED IF THERE IS GRAV E ABUSE OF DISCRETION
ON THE PART OF THE LOWER COURT IN DISMISSING
THE CRIMINAL CASE OR IN IMPOSING A LOWER
PENALTY.

118-a. May the government , by way of


Petition for Certiorari under Rule 65, question
the Decision of Acquittal by the trial court, or
for the increase of the penalty imposed by the
trial court?
Yes. In cases of: [1] in a judgment of acquittal
rendered with grave abuse of discretion amounting to
lack or in excess of jurisdiction [PEOPLE VS.
SANDIGANBAYAN, 491 SCRA 185, June 16, 2000];
and [2] where the prosecution had been deprived of
due process due to misfeasance of the prosecutor.
[MERCIALES VS. COURT OF APPEALS, 379 SCRA
345; PEOPLE VS. VELASCO, 340 SCRA 207,
September 13, 2000], cited PEOPLE VS.
SANDIGANBAYAN & IMELDA MARCOS, ET AL.,
February 7, 2012; VILLAREAL VS. PEOPLE,
February 1, 2012; YSIDORO VS. HON. TERESITA
CASTRO, February 6, 2012.
Likewise if the penalty was wrong like
imposing slight physical injuries to some accused and
Homicide for the others when all of them participated
in inflicting injuries resulting into the death of
Lenny
during his initiation rites , the defense of double
jeopardy is unavailing and the Supreme Court
increased the penalties for those earlier sentenced to
slight physical injuries only. (VILLAREAL VS. PEOPLE,
February 1, 2012)
118-b. Jason Ivler was charged of: [1]
Reckless imprudence resulting to slight physical
injuries; and [2] Reckless imprudence resulting
to Homicide and Damage to Property as a result
of his single negligent act of bumping the
vehicle of the victims. He entered a plea of
guilty in the first case and was sentenced to
CENSURE. When he was about to be arraigned in
the second case, he invoked double jeopardy
and prayed for the dismissal of the said 2 nd
case. Decide.
Yes, double jeopardy has set in. He could not
be tried again for the 2 nd case. A single negligent act
could not be the subject of two (2) criminal
informations. [IVLER VS. JUDGE PEDRO, G.R. No.
172716, November 17, 2010] (NOTE: Very
important in your Criminal Law. Article 48 of the
Revised Penal Code allows complexing a crime if it
involves grave and less grave felonies but the Ivler
case does not involve grave or less grave felonies. The
Supreme Court held that Art. 48 does not apply to
negligence cases and should be complexed regardless
of the kind of felonies involved)
118-c. May the private complainant
validly file a Motion for Reconsideration of a
Decision of the Supreme Court ACQUITTING
Hubert Webb and company of Rape with
Homicide and Murder without violating the rule
on double jeopardy?

No. The acquittal of Hubert Webb and his coaccused by the Supreme Court in the Vizconde
Rape/Murder cases is final. Double jeopardy has set in.
(LEJANO VS. PEOPLE & PEOPLE VS. HUBERT WEB
ET AL., January 18, 2011)
118-d. Sharon Cuneta filed two (2) cases of
Libel against the editors and columnist of the tabloid
Bandera. After the prosecution rested its case, the
accused filed a Demurrer to Evidence which the trial
court granted. Sharon questioned the dismissal before
the Court of Appeals on Certiorari under Rule 65 which
was granted by the latter and ordered the trial court
shall proceed to receive the evidence of the accused.
The editors went to the Supreme Court alleging that
their right against double jeopardy was violated.
Yes, the right of said accused against double
jeopardy will be violated by remanding the case for the
reception of evidence for the said accused. Dismissal
of a criminal case based on demurrer to evidence
amounts to acquittal and as such, double jeopardy has
set in.
Finally, the Court of Appeals should not have
entertained Sharons petition because only the
Solicitor General could file such a petition questioning
the decision of the lower court in criminal cases before
the CA or SC, not the private complainant. (BAUTISTA
VS. Sharon Cuneta-Pangilinan, October 24, 2012)
118-e. What is the "Supervening Fact
Doctrine."
It simply provides that an accuseds
conviction shall not be a bar to another prosecution for
an offense which necessarily includes the offense
charged in the former complaint or information when
the graver offense developed due to supervening facts
arising from the same act or omission constituting the
former charge or that the facts constituting the graver
charge became known only or were discovered after a
plea was entered in the former complaint or
information. (Section 7, Rule 117, 2000 Rules of
Criminal Procedure; P vs. Tarok, 73 Phil. 260; P
vs. Villasis, 46 O.G. 268; Melo vs. People, 85
Phil. 766; P vs. Buling, 107 Phil. 712; P vs. Adil,
76 SCRA 462; P. vs. Tac-an, 182 SCRA 601; and P
vs. City Court of Manila, 121 SCRA 637
118-f. If the same libelous article will be
published by the author in the internet and
in a daily newspaper, can he be charged
separately for Libel under the Revised Penal
Code and Libel under the Cybercrime
Prevention Act of 2012 since the acts are
covered by two (2) different laws?
No, that would violate his right against double
jeopardy. (DISINI VS. SECRETARY OF JUSTICE,
GR No. 203335, February 18, 2014)
118-g. May a person be criminally
charged separately under the Cybercrime
Prevention Act of 2012 and Anti-Child
Pornography Act since they are punished by
different laws?
No, that would violate his right against double
jeopardy. (DISINI VS. SECRETARY OF JUSTICE,
GR No. 203335, February 18, 2014)
119. When may the ex-post facto law
rule be invoked?

53
Only if the law sought to be applied is a [1]
criminal law or penal in nature; [2] it is applied
retroactively; and that [3] it is prejudicial to the
accused. Otherwise, the same may not be invoked
as when the questioned law involves the
jurisdiction of the Sandiganbayan which is not a
penal law. Ex post facto law prohibits the
retrospectivity of penal laws. RA 8249 is not a
penal law. It is a substantive law on jurisdiction
which is not penal in character. (PANFILO M.
LACSON VS. THE EXECUTIVE SECRETARY, THE
SANDIGANBAYAN, ET AL., ROMEO ACOP &
FRANCISCO ZUBIA, JR., G.R. No. 128096, January
20, 1999)

d.

120. What are the different forms of expost facto law?

g.

In order that a law is an ex post facto law, the


same must be one
a.

b.
c.

which makes an act done


criminal before the passing of
the law and which was innocent
when committed, and punishes
such action;
which aggravates a crime or
makes it greater than when it
was committed;
which changes the punishment
and
inflicts
a
greater
punishment
than
the
law
annexed to the crime when it
was committed;

e.

f.

which alters the legal rules of


evidence and receives less or
different testimony than the law
required a the time of the
commission of the offense in
order to convict the defendant;
every law which, in relation to
the offense or its consequences,
alters the situation of a person
to his disadvantage;
that which assumes to regulate
civil rights and remedies but in
effect imposes a penalty or
deprivation of a right which
when done was lawful;
deprives a person accused of a
crime of some lawful protection
to which he has become
entitled, such as the protection
of a former conviction or
acquittal, or a proclamation of
amnesty
(KAY
VILLEGAS
KAMI, 35 SCRA 429; MEJIA
VS. PAMARAN, 160 SCRA
457; TAN VS. BARRIOS, 190
SCRA
686;
PEOPLE
VS.
SANDIGANBAYAN, 211 SCRA
241).