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POLITICAL LAW REVIEWER

(July 1, 2016)

Exclusively for 2016 UC Students,


Reviewees and Examinees for the 2016
Bar Examinations
Prepared by
ATTY. LARRY D. GACAYAN
Professor of Law
UNIVERSITY OF THE CORDILLERAS
Baguio City
(POLITICAL LAW REVIEW, CONSTITUTIONAL LAW I, CONSTITUTIONAL LAW II )
BAR REVIEWER
(Constitutional Law)
C.P.R.S. BAR REVIEW CENTER
Cagayan de Oro City, Zamboanga City, Davao City, Ozamis City,
Iligan City, Iloilo City, Baguio City,and Tacloban City,
POWERHAWS BAR REVIEW CENTER
Baguio City, Santiago City, Isabela, San Fernando City, La Union,
Manila, Naga City, Tacloban City, Dipolog City and Tagbilaran City
COSMOPOLITAN REVIEW CENTER (CRC)
University of the Cordilleras, Baguio City
EXCELLENT BAR REVIEW CENTER
Baguio City, Cebu City and Tacloban City
HOLY TRINITY COLLEGE PRE-BAR REVIEW CENTER
General Santos City
UNIVERSITY OF PANGASINAN BAR REVIEW CENTER
Dagupan City

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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

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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. The people must author and must sign the entire proposal. No
agent or representative can sign for and on their behalf;
2. 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
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.

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.
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 three (3) kinds of de 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 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
postliminium?

is

the

postliminy

theory

or

jus

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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 re-establishment 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 self-restriction." 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
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.
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

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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,
non-profit 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?

9
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. Is abortion allowed in the Philippines?
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)

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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?
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.

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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 violates the following provisions or principles
under the Constitution:

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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 nondelegation of legislative power because such act ALLOWS EACH
LEGISLATOR TO EFFECTIVELY EXERCISE THE POWER OF
LEGISLATION on his appropriated pork barrel.
3. 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.
4. 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.
5. 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

13
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 delegation of legislative power are.
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 Rule-making power to

administrative

bodies
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:

14

(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 government-accredited 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?
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 2 nd 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. There must be a final judgment disqualifying a candidate in order that
the votes of a disqualified candidate can be considered stray. This

15
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.
2. 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 10, Art. X of the
1987 Constitution?
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)

16
[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?
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

17
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.

18
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 party-list 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 & PALPARAN VS. HRET,
February 11, 2010)

19
38-b. May Lesbians, Gays, Bisexuals and Transgenders
marginalized or under-represented 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

20
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 3 rd 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 30th 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?

21

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

22
characterized as quintessential and non-delegable Presidential power, such
as commander-in-chief power, appointment and removal power, the power to
grant pardons and reprieves, the sole-authority 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


quintessential and non-delegable 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 non-delegable 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 .

23
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 appropriate investigating authority.
(NOTE: In Nixon, the US
Supreme
Court
held
that
invocation of executive privilege
is unavailing if it involves the
commission of a crime and there
is already a pending criminal
case.)
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 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

24
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.
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?
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.
41-b. May local legislative bodies validly cite a person in
contempt of court (as what Congress could do) for refusing to appear
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 that must exclusively originate from the
House of Representatives?
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.)

25

43. When
Constitution?

is

transfer

of

appropriations

allowed

by

the

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.
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?
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)
43-b. What is the Disbursement Acceleration Program (DAP)? Is
DAP an appropriation measure?
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?

26
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

27
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?
Since both Houses of Congress had recognized that Arroyo is the
President when they passed Resolution expressing their support to the

28
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.

29
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)
1. 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)

30
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 1 st sentence of
Section 16, Art. VII of the Constitution. (TARROSA VS. SINGSON, 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?

31

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. (Lacson-Magallanes 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.

32
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 take-over 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 COMMANDERIN-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 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 1st 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?

33

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 ELECTIONS AND JOSEPH
EJERCITO ESTRADA, GR No. 206666, JANUARY 21, 2015)
58. What are the requisites of judicial review?
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

34
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 real-partiesin 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.
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.

35
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 farreaching 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.
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:
(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;
(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;

36
2.

for taxpayers, there must be a claim of illegal disbursement of


public funds or that the tax measure is unconstitutional;

3.

for voters, there must be a showing of obvious interest in the


validity of the election law in question;

4.

for concerned citizens, there must be a showing that the


issues raised are of transcendental importance which must be
settled early; and

5.

for legislators, there must be a claim that the official action


complained of infringes upon their prerogatives as legislators.

Significantly, recent decisions show a certain toughening in the Courts


attitude toward legal standing.
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.
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.
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.
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:

37
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
privately-owned 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 [1] impeachment as well as [2]
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). [3] It is not also available unless there is already
conviction by final judgment if the one to be exercised are those
enumerated in the first paragraph of Section 19, Art. VII of the
Constitution. (Atty. Vidal vs. COMELEC & JOSEPH ESTRADA, G. R. No.
206666, January 21, 2015)
63-a. Was the pardon extended to former President Joseph
Estrada conditional or absolute which would qualify him to be a
candidate for Mayor in the City of Manila wherein one of the whereas
clauses provides that WHEREAS, JOSEPH EJERCITO ESTRADA HAS
PUBLICLY COMMITTED TO NO LONGER SEEK ANY ELECTIVE
POSITION OR OFFICE?
Yes because the said whereas clause is not controlling but the phrase
HE IS HEREBY RESTORED TO HIS CIVIL AND POLITICAL RIGHTS. (Atty.
Vidal vs. COMELEC & JOSEPH ESTRADA, G. R. No. 206666, January 21,
2015)
64. Distinguish pardon from amnesty.
As held in BARRIOQUINTO VS. FERNANDEZ, 82 Phil. 642, the
distinctions are as follows:
[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,

38
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.
[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.
[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 proceedings, that

39
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
administrative cases like the suspension of a Provincial Governor?

to

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.

40

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.

41
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 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.
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 constitutionality 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 question
of law is involved.

42
(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.
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. What is the operative fact doctrine?
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)

43

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?

44
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
quasi-judicial 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.

45

Under Section 18, Art. VII, however, a case questioning the validity
of the declaration of martial law or suspension of the writ of 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.

46
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 selforganization, 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 46 (a) of the Civil Service Law provides that no
officer or employee in the Civil Service shall be suspended or dismissed
except for cause as provided by law after due process.
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-in-rank 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-in-rank. 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

47
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.
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:

48
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
provincial officials be filed?

cases involving city and

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

49
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?
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 terms. It was not voluntary which could have resulted in the counting of
his election in 2004 as his 3rd term. He was forced by law to vacate his
position as Municipal Councilor. (MONTEBON VS. COMELEC, April 8,
2008)
rd

50

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 3rd 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.

51
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
3rd 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 3-consecutive 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 term-interrupting event as the
elective officers continued 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 4 th term?

52

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 )
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 4 th
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).
102-i. If the mayor-elect is declared inieligible as a result of the
fact that after re-acquiring his Philippine citizenship, he again used his
US Passport, who shall be declared the new Mayor? The Vice mayor or
the second placer?
Since the votes cast for an ineligible candidate are considered stray
votes, then the second placer shall be declared as the duly elected mayor
since he obtained the highest number of valid votes during the elections.
(MAQUILING VS. COMELEC and ARNADO, G.R. No. 195649, April 16,
2013)
102-j. After his disqualification in the 2010 elections because of
his use of his US Passport after he executed an Affidavit of Repatriation,
Arnado again executed another Affidavit of Repatriation and did not use
anymore his US Passport, is he now qualified to be elected Municipal
Mayor of Kauswagan, Lanao del Norte for the May, 2013 elections?

53
No. in order to be qualified for any elective position, the candidate must
have total and undivided allegiance to the Republic of the Philippines.
(ARNADO VS. COMELEC, August 18, 2015)
102-k. What is the condonation theory or the forgiveness
doctrine as applied to local government officials?
It simply means that the administrative liability of elected local officials
committed in their previous term is deemed forgiven if they were reelected
by htheir constituents in the next election. However, their criminal liability for
the said acts is not affected.(AGUINALDO VS. HON. LUIS SANTOS, G. R.
No. 94115, August 21, 1992)
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?
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

54
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 as legitimate media
practitioners.

7.

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.

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
104-a. What are the grounds for impeachment?
Only for Culpable violation of the constitution, treason, bribery, graft
and corruption, other high crimes, or betrayal of public trust.

55

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 1st impeachment complaint was filed on July 22, 2010 and the
2nd 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 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)
107. Who investigates and prosecutes public officials for crimes
committed in the performance of their official duties? Exception
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.

56

109. What is the extent of academic freedom on the part of


schools?
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
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).

57
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 the State gives its consent to be sued?
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.
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
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)

58
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)

59

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 of 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. 595apprehend and confine lepers in a leprosarium)
c. to promote and protect public safety; (AGUSTIN VS. EDU, 88
SCRA 195; TAXICAB OPERATORS VS. JUINIO, 119 SCRA 897 )
d. to maintain and safeguard peace and order; (GUAZON VS. DE
VILLA)
e. 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)
f. 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)

60
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 ErmitaMalate 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)
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.)
2-d. requisites of a valid ordinance;
1. Must not be contrary to the Constitution or the laws;
2. Must not be partial or discriminatory;
3. it must not be unfair oppressive;
4. It must not be unreasonable;
5. Must not prohibit but may regulate trade;
6. it must be general and consistent with public policy. (CITY OF
MANILA VS. LAGUIO, 455 SCRA 308, WHITE LIGHT CORPORATION VS.
CITY OF MANILA, January 20, 2009)
3. Distinguish police power with power of eminent domain.
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

61
by restraining and regulating the use of liberty and
property without compensation;
2. 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.
3. 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)
4. What are the tests for a valid exercise of police power
a. the interests of the public, not mere particular class, require
the exercise of police power; (LAWFUL SUBJECT)
b. 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 interest of the public as against mere particular
class.
b. 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:

62

1. There must be an impartial court or tribunal clothed with judicial


power to hear and decide the matter before it;
2. Jurisdiction must be lawfully acquired over the person of the
defendant or over the property subject of the proceedings;
3. The defendant must be given the opportunity to be heard;
4. Judgment must be rendered only after lawful hearing.
8. What are the requisites of due process before administrative
bodies?
As held in TIBAY VS. CIR, 69 Phil. 635, the requisites are:
a. the right to a hearing which includes the right to present
evidence;
b. the tribunal must consider the evidence presented;
c. the decision must have something to support itself;
d. the evidence must be substantial;
e. the decision must be based on the evidence presented during
the hearing;
f. the tribunal or body must act on its own independent
consideration of the law or facts;
g. 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 non-lawyer 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)

63
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 counter-affidavits 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.
212140-41, 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 co-respondents?
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 counteraffidavits happened in the administrative proceedings on the merits,
which resulted in Reyes dismissal from the service. In Sen. Estradas

64
Petition, the denial of his Request happened during the preliminary
investigation where 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;

65

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. Notice; and
2. 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

66
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
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

67
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

68
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)
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 of probable cause to be done by the judge for
the purpose of issuing a warrant of arrest against the accused.
(LEVISTE VS. JUDGE ALAMEDA, August 3, 2010)
15-b. May the Anti-Terrorism 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?

69
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 ANTITERRORISM 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 Anti-Terrorism
Council has taken custody of a person charged with or
suspected of the crime of terrorism or the crime of conspiracy to
commit terrorism shall, WITHOUT INCURRING ANY CRIMINAL
LIABILITY FOR DELAY IN THE DELIVERY OF DETAINED
PERSONS TO THE PROPER JUDICIAL AUTHORITIES,
DELIVER SAID CHARGED OR SUSPECTED PERSON TO
THE PROPER JUDICIAL AUTHORITY WITHIN A PERIOD OF
THREE (3) DAYS counted from the moment said charged or
suspected person has been apprehended or arrested, detained,
and taken into custody by the said police, or law enforcement
personnel: Provided, That the arrest of those suspected of the
crime of terrorism or conspiracy to commit terrorism must result
from the surveillance under Section 7 and examination of bank
deposits under Section 27 pf this Act.
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

70
connection with the terror attack or threat is not established,
shall be released immediately.
(NOTE: Under
the Human Security Act/AntiTerrorism Law, Republic Act No. 9372, Approved
on March 6, 2007 and effective on July 15, 2007
(This Law shall be automatically suspended one
(1) month before and two (2) months after the
holding of any election) a person may be taken
into custody by the police if there is a written
authorization by the Anti-Terrorism Council and
such detention may be extended upon written
approval of the Commission of Human Rights in
case of actual or imminent terrorist attack..)
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 his Clerk of Court to take the deposition
of the applicant for a search warrant subject to clarificatory questions
after his hearing in other cases?
No. As held in Bache vs. Ruiz, 37 SCRA 823, the examination of the
complainant ant the witnesses he may produce must be done personally by
the judge. Otherwise, the warrant shall be void. As such, the SC held in
PENDON VS. CA, November 16, 1990 that when the questions asked to the
applicant for a search warrant was pre-typed, the same is not valid since there
could have been no searching questions.

71

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)
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?
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. 9905457). 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.

72

(2) The preliminary inquiry made by the prosecutor does not


bind the judge. It merely assist him to make the determination of
probable cause. The judge does not have to follow what the
prosecutor's present to him. By itself, the prosecutor's certification of
probable cause is ineffectual. It is the report, the affidavits, the
transcripts of stenographic notes, and all other supporting documents
behind the prosecutor's certification which are material in assisting the
judge to make his determination.
(3) Preliminary inquiry should be distinguished from the
preliminary investigation proper. While the former seeks to determine
probable cause for the issuance of warrant of arrest, the latter
ascertains whether the offender should be held for trial or be released.
22. As to the requirement that the judge must personally
determine probable cause, must he examine the complainant and his
witnesses face to face in order to comply with the said constitutional
provision?
It depends.
[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).

73

24. Is "Operation Kapkap" being done by the police because the


suspect has something bulging in his waist and keeps on touching his
abdomen as if touching a gun valid?
As held in PEOPLE VS. MENGOTE, G.R. No. 87059, June, 1992, 210
SCRA 174, OPERATION KAPKAP or warrantless search without probable
cause is unconstitutional. Such search is valid only if covered by Section 5,
Article 113 of the Rules of Court which provides:
Sec. 5. Arrest without warrant; when lawful.- A peace
officer or private person may, without warrant, arrest a person:
(a) When, in his presence, the person to be
arrested has committed, is actually committing, or is
attempting to commit an offense;
(b) When an offense has in fact just been
committed, and he has personal knowledge of facts
indicating that the person to be arrested has committed it;
and
(c) When the person to be arrested is a prisoner
who has escaped from a penal establishment or place
where he is serving final judgment or temporarily confined
while his case is pending, or has escaped while being
transferred from one confinement to another.
Compare this case to MANALILI VS. PEOPLE, October 9, 1997. The
policemen saw several suspicious looking men at dawn who ran when they
went near them. As the policemen ran after them, an unlicensed firearm was
confiscated. The search was declared valid by the Supreme Court. Note,
however, that in MALACAT VS. CA, 283 SCRA 159, the SC held that mere
suspicions not sufficient to validate warrantless arrest.
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?

74
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 accusedappellant commit the crime charged against him. Indeed, the prosecution
admitted that there was no warrant of arrest issued against accused-appellant
when the latter was taken into custody. Considering that the accusedappellant was not committing a crime at the time he was arrested nor did the
arresting officer have any personal knowledge of facts indicating that
accused-appellant committed a crime, his arrest without a warrant cannot be
justified.
27. What is the effect on the illegality of the arrest by the
subsequent act of the accused in posting bond for his provisional
liberty and entering a plea during his arraignment?
By entering a plea of not guilty during the arraignment, the accusedappellant 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?

75

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
(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.

76
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
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

77
JUDGE ABELARDO M. DAYRIT, RTC 33, Manila & People of the Philippines,
GR No. 82870, December 14, 1989)
35. May the police and military authorities validly search the
citizens without warrant in checkpoints set up by them? What is the
extent of the search that they may conduct?
In RICARDO VALMONTE VS. GEN RENATO DE VILLA, GR No.
83988, September 29, 1989, the Supreme Court held that warrantless
searches and seizures in military and police checkpoints are not illegal as
these measures to protect the government and safeguards the lives of the
people. The checkpoints are legal as where the survival of the organized
government is on the balance, or where the lives and safety of the people are
in grave peril. However, the Supreme Court clarified that the military officers
manning the checkpoints may conduct VISUAL SEARCH ONLY, NOT BODILY
SEARCH.
36. Is an unlicensed firearm seized in the house of the accused
without warrant by the military authorities, after they were given
consent by the said owner of the house for them to search for rebel
soldiers, admissible in evidence?
No. In VEROY VS. LAYAGUE, 210 SCRA 97, the Supreme Court held
that the owner of the house allowed the policemen to enter his house because
they will be searching for rebel soldiers but when inside the house, they
instead seized an unlicensed firearm. As such, there was no consent to
search for firearms and as a consequence, the firearm is not admissible as
evidence.
37. If the judge finds that there's probable cause, must he issue a
warrant of arrest as a matter of course?
It depends:
1. SAMULDE VS. SALVANI, SEPTEMBER 26, 1988 (No because
a warrant is issued in order to have jurisdiction of the court over
the person of an accused and to assure the court of his
presence whenever his case is called in court. As such, if the
court believes that the presence of the accused could be had
even without a warrant of arrest, then he may not issue said
warrant. Note: This case involves a minor offense)
2. GOZO VS. TAC-AN, 300 SCRA 265. If the offense committed is
a serious one like that obtaining in this case for murder, the
Judge must issue a warrant of arrest after determining the
existence of probable cause)
38. If the applicant for a search warrant testifies that his
knowledge of the facts and circumstances was derived from a highly

78
reliable informant, would such fact sufficient to convince the court of
the existence of probable cause?
No, knowledge based on hearsay information does not justify the
existence of probable cause. (Prudente vs. Dayrit, supra.) In fact, when the
statements in the affidavits of witnesses are mere generalities, mere
conclusions of law, and not positive statements of particular acts, the warrant
issued by virtue thereof is not valid. Ponsica vs. Ignalaga, July 31,1987)
39. In the seizure of alleged pirated tapes, what must the applicant
submit to the court in order that the search warrant to be issued shall be
valid?
In Century Fox vs. CA, 164 SCRA 655 and COLUMBIA PICTURES
VS. CA, 261 SCRA 144, it was held that the master copy of the allegedly
pirated tape should be presented before the judge in order to convince him of
the existence of probable cause)
40. What is the effect on the evidence obtained in violation of
Sections 2 and 3 of Article III?
Any evidence obtained in violation of Sections 2 and 3 of Article III
shall be inadmissible for any purpose in any proceeding.
41. Under the Human Security Act/Anti-Terrorism Law, Republic
Act No. 9372, Approved on March 6, 2007 and effective on July 15, 2007,
may police authorities the listen to, intercept and record, with the use
of any mode, form or kind or type of electronic or other surveillance
equipment or intercepting and tracking devices, or with the use of any
other suitable ways or means for that purpose, any communication,
message, conversation, discussion, or spoken or written words of a
person without violating the right to privacy?
Yes under Sections 7 and 8 of the law which provides:
Section 7. Surveillance of suspects and interception and
recording of communications. The provisions of RA 4200 (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 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.

79

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/Anti-Terrorism Law, Republic
Act No. 9372, Approved on March 6, 2007 and effective on July 15, 2007,
may police authorities examine the bank accounts of individuals without
violating their right to privacy?
Yes under Sections 27 and 28 of the said law. It provides:
Section 27. Judicial authorization required to examine bank deposits,
accounts and records.
The justices of CA designated as special court to handle anti-terrorism
cases after satisfying themselves of the existence of probable cause in a
hearing called for that purpose that:
A person charged with or suspected of the crime of terrorism or
conspiracy to commit terrorism;
Of a judicially declared and outlawed terrorist organization or group
of persons;
Of a member of such judicially declared and outlawed organization,
association or group of persons, may authorize in writing any
police or law enforcement officer and the members of his team
duly authorized in writing by the anti-terrorism council to:
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-

80

-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?

81
Yes, under Section 26 of the law, it provides that persons who have
been charged with terrorism or conspiracy to commit terrorism---even if they
have been granted bail because evidence of guilt is not strongcan be:
Prohibited from using any cellular phones, computers, or other means
of communications with people outside their residence.
44. Is the act of the COMELEC in ordering the Diocese of Bacolod
City to remove its big tarpaulin where it impliedly asked the voters to
vote for the TEAM BUHY or the Senators or Congressmen who opposed
the Reproductive Health Bill and against the members of TEAM PATAY
or the Senators and Congressmen who voted in favor of the
Reproductive Health Bill VALID? ( DIOCESE OF BACOLOD VS.
COMELEC, G.R. No. 205728, January 21, 2015)
No, the order violates the freedom of speech on the part of the
Diocese of Bacolod and the other petitioners.
44-a. Was there violation of the law regulating the size of tarpaulin
to be used during election campaign because the tarpaulin used by ther
Diocese of Bacolod in the TEAM BUHAY AND TEAM PATAY campaign is
bigger than that allowed by the law?
There is no violation because the size of the tarpaulins in this case is
beyond the constitutional powers of the COMELEC to regulate because this is
part of the protected speech of the petitioners WHO ARE NOT
CANDIDATES. DIOCESE OF BACOLOD VS. COMELEC, G.R. No. 205728,
January 21, 2015)
44-b. Distinguish political speech from commercial speech.
Political speech refers to speech both intended and received as a contribution
to public deliberation about the same issue fostering informed and civicminded deliberation while commercial speech is a speech that does no more
than to propose a commercial transaction. DIOCESE OF BACOLOD VS.
COMELEC, G.R. No. 205728, January 21, 2015)
44-c. Distinguish content-based regulation from content-neutral
regulation as restrictions to free speech.
Content-based regulation can either be based on the viewpoint of the
speaker or the subject of the expression. Content-based regulations bears a
heavy presumption of invalidity and the Supreme Court had consistently used
the clear and present danger as a measure of its validity or invalidity. A
content-based restraint or censorship refers to restrictions based on the
subject matter of the utterance or speech.

82
Content-neutral regulation controls merely on the incident of free
speech such as time, place or the manner of the speech. DIOCESE OF
BACOLOD VS. COMELEC, G.R. No. 205728, January 21, 2015)
What is the rule on criticisms on the acts of public officers?
A public official should not be too onion-skinned with reference to
comments upon his official acts. The interest of the government and the
society demands full discussion of public affairs. (US vs. Bustos, 37 Phil.
731)
45. May the above rule applicable to private individuals who are
public figures or private individuals who are candidates for public
office?
As held by the Supreme Court in the case of BAGUIO MIDLAND
COURIER & CECILLE AFABLE VS. COURT OF APPEALS & RAMON
LABO, JR., 444 SCRA 28 [November 25, 2004 , the article involving a
private individual running for Mayor of Baguio City is still within the mantle of
protection guaranteed by the freedom of expression provided in the
Constitution since it is the 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 consequence
that the people should discuss the
character
and
qualifications
of
candidates for their suffrages. The
importance to the State and to society of
such discussions is so vast, and the
advantages derived so great, that they
more
than
counterbalance
the
inconvenience of private persons whose
conduct
may
be
involved,
and
occasional injury to the reputations of
individuals must yield to the public
welfare, although at times such injury
may be great. The public benefit from
publicity is so great and the chance of
injury to private character so small, that
such discussion must be privileged.
Clearly, the questioned articles constitute fair comment on
a matter of public interest as it dealt with the character of the private
respondent who was running for the top elective post in Baguio City at
that time.

83

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)
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

84
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?

85
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 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

86
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 protection under
the circumstances presented.)
55. May Senator Juan Ponce Enrile prevent the movie producer of
the EDSA I Revolution movie from including his participation during the
uprising since it violates his right to privacy?
No, as between 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)

87
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. Freedom to believe; and
b. 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 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

88
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.
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 non-compliance?
No since such is in violation of their religious beliefs. (ROEL
EBRALINAG, ET AL VS. THE DIVISION SUPERINTENDENT OF SCHOOLS
OF CEBU, March 1, 1993). Religious freedom is superior to the statute
requiring the pupils to sing the National Anthem; recite the Patriotic Pledge;
and Salute the Flag. The doctrine laid down in Gerona vs. Secretary of
Education was reversed.
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 non-establishment 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 non-establishment 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

89
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.
These restrictions shall be terminated upon acquittal of the
accused; or the dismissal of the case filed against him; or earlier
upon the discretion of the court or upon motion of the prosecutor.
62. May 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?

90

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.
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 PartyList Act?
YES, the COMELEC must publish the same despite the
prohibition in the law. Such prohibition violates the right to information on
matters of public concern on the part of the citizen. (BANTAY REPUBLIC
VS. COMELEC, MAY 4, 2007)
67. May the President validly prohibit members of her Cabinet as
well as other officers in the executive department from attending
investigations in aid of legislation by Congress?
No. Such would violate the right of the people to information on matters
of public concern. It is only through said investigations that the people will be
informed of the workings of the different departments of the government.
(SENATE OF THE PHILIPPINES, represented by SENATE PRESIDENT
FRANKLIN DRILON, ET AL., VS. EXEC. SEC. EDUARDO ERMITA, ET AL.,
G.R. No. 16977, April 20, 2006 )
68. May a Barangay validly
domain?

exercise the power of eminent

Yes, subject to the approval by the President.( Barangay Matictic vs.


Elbinias, 148 SCRA 83)
69. What are the requisites before an expropriator may validly
obtain a writ of possession to take over possession of the expropriated
property?
It depends:
1. If the expropriation is for a National government projects or
national infrastructure projects, like those covered by the BuildOperate-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)

91

2. In ordinary expropriation cases, the rule is that in the case of


BIGLANG-AWA VS. JUDGE BACALLA, 354 SCRA 562. It provides:
PURSUANT TO SECTION 2, RULE 67 OF THE 1997 RULES OF
CIVIL PROCEDURE AND THE DOCTRINE LAID DOWN IN THE ROBERN
DEVELOPMENT CASE, THE ONLY REQUISITES FOR THE IMMEDIATE
ENTRY BY THE GOVERNMENT IN EXPROPRIATION CASES ARE:
the filing of a complaint for expropriation sufficient in form and
substance; and
the making of a deposit equivalent to the ASSESSED VALUE
OF THE PROPERTY SUBJECT TO EXPROPRIATION.
3. If the expropriation is being done by a Local Government Unit, the
Supreme Court decision in the case of THE CITY OF ILOILO VS.
JUDGE LEGASPI, RTC 22, ILOILO CITY, 444 SCRA 269, shall be
complied with:
1. the complaint for expropriation filed in court is
sufficient in form and substance; and
2. the expropriator must deposit the amount
equivalent to 15% of the fair market value of
the property to be expropriated based on its
current tax declaration.
70. Who determines the just compensation in expropriation cases?
What are the factors to be considered in determining the same?
Determination of just compensation is a judicial function with the
assistance or recommendation of the court-appointed commissioners.
(Manotok vs. CA, May 21,1987)
The factors to be
compensation/market value are:

considered

in

determining

the

just

1. cost of acquisition;
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).

92

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)

72. May a private property already used as a private cemetery be


expropriated for another public purpose?
No, a private property which is already devoted to public use may not
be expropriated for another public purpose. (City of Manila vs. Chinese
Community, 40
Phil. 349).
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. The person arrested, detained, invited or under custodial
investigation must be informed in a language known to and
understood by him of the reason for the arrest and he must
be shown a copy of the warrant of arrest, if any; Every other
warnings, information or communication must be in a
language known to and understood by said person;
2. He must be warned that he has the right to remain silent and
that any statement he makes may be used as evidence
against him;

93

3. He must be informed that he has the right to be assisted at


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

94
answered some questions or volunteered some information
or statements;
11. He must be informed that any statement OR EVIDENCE, as
the case may be, obtained in violation of any of the
foregoing, whether inculpatory or exculpatory, in whole or in
part, SHALL BE INADMISSIBLE IN EVIDENCE.
74. What are the rights of a person under custodial detention or
for one suspected or arrested as a terrorist under the Human Security
Act?
The rights of an accused under the Anti-Terrorism 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

95
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

96
authorities, upon their arrest of some of the accused, immediately asked them
regarding their participation in the commission of the crime , even while they
were still walking along the highway on their way to the police station.
(PEOPLE VS. BARIQUIT, 341 SCRA 600)
77. Are spontaneous admissions made before a person could be
informed of his rights during custodial investigation admissible as
evidence?
Yes. Spontaneous statements voluntarily given, as where
appellant orally admitted killing the victim before the barangay captain
(who is neither a police officer nor a law enforcement agent), do not fall
under custodial investigation. Such admission, even without the
assistance of a lawyer, does not violate 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).
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.

97
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 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:
a. the confession must be voluntary;
b. the confession must be made with the assistance of a
competent and independent counsel;
c. the confession must be express; and
d. the confession must be in writing.

98

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. confession which are the product of third degree methods such as
torture, force, violence, threat, intimidation; and
b. those which are given without the benefit of Miranda Warnings.
PEOPLE VS. OBRERO, 332 SCRA 190
83. What is the status of coerced confessions as evidence in
court?
Coerced or involuntary confessions are inadmissible as evidence being
the fruit of the poisoned tree.
84. Is the right to counsel satisfied if the suspect was assisted by
the Station Commander of the Western Police District while he was
being investigated by the policemen of the same station? How about if
the investigation is being conducted by the NBI and the suspect was
ordered assisted by a lawyer-applicant therein?
There is no compliance of the constitutional requirement of competent
and independent counsel to assist an accused during custodial investigation
when the accused was assisted by the Station Commander of the WPD, Atty.
De los Reyes, while being investigated by other policemen of the same police
station because the interest of the police is naturally adverse to the accused.
In fact, the SC in the case of PEOPLE VS. JANUARIO, 267 SCRA 608 held
that a lawyer applying for a position in the NBI could not validly assist an
accused being investigated then by the NBI. (PEOPLE VS. OBRERO, 332
SCRA 190)
85. Is the right to counsel available to a suspect during a police
line-up?
The Supreme Court had conflicting decisions on this aspect but ended
up with the rule that since the accused will not be made to make any
testimony or statement during the police line-up, then he is not under

99
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 co-accused? 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 in the extrajudicial confession of a suspect:
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;

100
(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 coaccused . In People v. Alvarez , we ruled that where the confession is used
as circumstantial evidence to show the probability of participation by the coconspirator, that confession is receivable as evidence against a co-accused
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. 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?

101

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 ADALIM-WHITE VS. JUDGE
ARNULFO BUGTAS, RTC 2 BORONGAN, SAMAR, 475 SCRA 175, it was
held that respondent Judge is guilty of gross ignorance of the law for ordering
the release of Bagaporo pending the approval of his application for parole
and before the completion of the minimum period of the sentence imposed
upon him. It is patently erroneous to release a convict on recognizance.
Section 24, Rule 114 provides that there shall no bail for a convict after final
judgment. The only exception is when the convict applies for Probation before
he commences to serve his sentence and that the offense and the penalty for
the offense is within the purview of the Probation Law.
.
Sections 5 and 16 of Rule 114 of the Rules of Court (on the different
kinds of bail) APPLIES ONLY TO AN ACCUSED UNDERGOING
PREVENTIVE IMPRISONMENT DURING TRIAL OR ON APPEAL. THEY DO
NOT APPLY TO A PERSON CONVICTED BY FINAL JUDGMENT AND
ALREADY SERVING SENTENCE.
89. May a judge require cash bond only?
No. The Rules 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?

102

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)

90-a. Senator Enrile was charged of the capital offense of Plunder


which is non-bailable. He filed a Motion to Fix Bail before the Sandiganbayan,
instead of Petition for Bail. Where the prosecution shall be given the
opportunity to prove that the evidence of guilt is strong and therefore, bail
shall be denied. Enrile claims that since he is over 90 years old and he
voluintarily surrendered which constitutes 1 degree lower, even if he will be
convicted, the penalty imposable on him is not reclusion pewrpetua or life
imprisonment. The same was denied by the Sandiganbayan. Is Enrile
correct?
A. Yes. Coupled with the fact that he is over 90 years old and with
failing health, bail is justified. These are the factors in fixing bail as enunciated
in the case of VILLASENOR VS. ABANO and the Rules on Criiminal
Procedure. (ENRILE VS. SANDIGANBAYAN, August 17, 2015)
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.

103
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 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?

104
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 cross-examination; and [c] his failure
not only to present evidence for the accused but to inform the accused of his
right to do so, if he desires. (PEOPLE VS. NADERA, JR., 324 SCRA 490)
96. If the accused has the right to be present during the trial
of his case, can he also refuse to appear during the hearings of his
case?
No. During arraignment, promulgation of the decision and when
he is to be identified by the witnesses for the prosecution, he must be present.
However, he can validly waive his presence after arraignment when he state
in open court or in an affidavit that whenever a witness mentions his name
during the presentation of the 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 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:

105
Length of the delay;
Reasons for the delay;
Assertion or failure to assert such right by the accused; and
Prejudiced caused by the delay.
There is no violation of the right to speedy disposition of his case
because petitioner failed to assert his constitutional right to a speedy
disposition of his case. During the 8-year period prior to April 19, 2002,
petitioner did not complain about the long delay in deciding his case.
98. May the right to speedy disposition of cases be invoked for
the dismissal of cases pending before quasi-judicial bodies like the
Office of the Ombudsman?
Yes, unreasonable delays like failure to decide a complaint against the
respondent for more than three (3) years from the time all the pleadings were
filed violates the 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 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.
The factors to consider in determining whether or not such right has
been violated:
1. length of delay,
2. reasons for such delay, and
3. assertion or failure to assert such rights by the
accused and the prejudice caused by the delay.
(ii) Speedy Trial Act of 1998. The authority of the
Secretary of Justice to review resolutions of his subordinates
even after an information has already been filed in court does
not present an irreconcilable conflict with the 30-day period
prescribed in Sec. 7 of the Speedy Trial Act of 1998.
(SUMBANG VS. GEN. COURT MARTIAL, G.R. NO. 140188,
337 SCRA 227, AUG.
3, 2000; BLANCO
VS.
SANDIGANBAYAN, G.R. NOS. 136757 58, 346 SCRA 108,
NOV. 27, 2000; SOLAR TEAM ENTERTAINMENT, INC. HON.
HOW, G.R. NO. 140863, 338 SCRA 51, AUG. 22, 2000).
99. Was the failure of the court to have a sign language expert
to inform the accused who is a deaf-mute of the contents of the criminal

106
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

107
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?
No. Such would violate the right of the accused against selfincrimination and if such happened, the proceedings shall be null and void.
(Chavez vs. CA, 24 SCRA 663)
105. Generally, to what kind of evidence does the right against
self-incrimination applies?

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

1987

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

109
Supreme Court held in ECHEGARAY VS. SECRETARY OF JUSTICE that
death through Lethal Injection is the most humane way of implementing the
death penalty.
111. What are the requisites before an accused may validly invoke
double jeopardy?
There is double jeopardy when there is:
[1] valid complaint of information;
[2] filed in a court of competent jurisdiction;
[3] the accused was validly arraigned; and
[4] the accused was convicted or acquitted, or the
case was dismissed or otherwise terminated without the
express consent of the accused. (PEOPLE
(PEOPLE VS.
ALMARIO, 355 SCRA 1)
112. If the dismissal was with the express consent of the accused,
may the dismissal result in double jeopardy?
Yes in two (2) instances.
As a general rule, if the dismissal is through
the instance of the accused or with his
express consent, there is no double jeopardy.
However, this rule admits of two (2)
exceptions:
1) the motion to dismiss is based on
insufficiency of evidence or Demurrer to
Evidence; 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 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

110
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 2 nd 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 1 st information
before the MTC which has jurisdiction over the same and the case was
subsequently dismissed without his express consent, then double jeopardy
has set in.
115. The accused was arraigned of homicide and entered a plea of
guilty but prayed that he be given the chance to prove incomplete selfdefense 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?

111
No because one of the requisites of double jeopardy is missing. There
was no valid arraignment. This is so because his plea was one of guilty and
yet, he was acquitted. In this case, he has to be re-arraigned for him to enter
a plea of not guilty in order that he could be validly acquitted.(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 newlydiscovered 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 mis-appreciated the evidence. This is so because if the
accused appeals the decision, the same will be subject to a complete reexamination 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,

112
2012; [3] PEOPLE OF THE PHILIPPINES VS. SANDIGANBAYAN, IMELDA
MARCOS, JOSE CONRADO BENITEZ and GILBERT 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 2nd 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

113
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 co-accused 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 CunetaPangilinan, 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)

114

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?
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)
120. What are the different forms of ex-post facto law?
In order that a law is an ex post facto law, the same must be one
a. which makes an act done criminal before the passing of the
law and which was innocent when committed, and punishes
such action;
b. which aggravates a crime or makes it greater than when it
was committed;
c. which changes the punishment and inflicts a greater
punishment than the law annexed to the crime when it was
committed;
d. 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;
e. every law which, in relation to the offense or its
consequences, alters the situation of a person to his
disadvantage;
f. 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;
g. 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).

115