TAKING in the Constitutional Sense
May include trespass without actual eviction of the owner, material impairment of the value of the
property or prevention of the ordinary uses fro which the property was intended. [notes]
Requisites for a valid taking:
1. Exproprietor must enter a private property
2. Entry must be for more than a momentary period
3. Entry must be under warrant or color of authority
4. Property must be devoted to public use or otherwise informally appropriated or injuriously
affected
5. Utilization of the property must be in such a way as to oust the owner and deprive him of
beneficial enjoyment
- Taking under Eminent Domain distinguished from Taking under the Police Power
PPI v. COMELEC, [G.R. No. 119694. May 22, 1995.]
To compel print media companies to donate "Comelec space" of the dimensions specified in
Section 2 of Resolution No. 2722, amounts to "taking" of private personal property for public use
or purposesxxx
The extent of the taking or deprivation is not insubstantial; this is not a case of a de minimis
temporary limitation or restraint upon the use of private property. The monetary value of the
compulsory "donation," measured by the advertising rates ordinarily charged by newspaper
publishers whether in cities or in non-urban areas, may be very substantial indeed. The taking of
private property for public use is, of course, authorized by the Constitution, but not without
payment of "just compensation" (Article III, Section 9). And apparently the necessity of paying
compensation for "Comelec space" is precisely what is sought to be avoided by respondent
Commission, whether Section 2 of Resolution No. 2772 is read as petitioner PPI reads it, as an
assertion of authority to require newspaper publishers to "donate" free print space for Comelec
purposes, or as an exhortation, or perhaps an appeal, to publishers to donate free print space, as
Section 1 of Resolution No. 2772-A attempts to suggest. The threshold requisites for a lawful
taking of private property for public use need to be examined here: one is the necessity for the
taking; another is the legal authority to effect the taking. The element of necessity for the taking
has not been shown by respondent Comelecxxx
Similarly, it has not been suggested, let alone demonstrated, that Comelec has been granted the
power of eminent domain either by the Constitution or by the legislative authority. A reasonable
relationship between that power and the enforcement and administration of election laws by
Comelec must be shown; it is not casually to be assumed. . . . Section 2 does not constitute a
valid exercise of the power of eminent domain.
TELEBAP, Inc. v. COMELEC, 289 SCRA 337, April 21, 1998 [Mendoza]
In truth, radio and television broadcasting companies, which are given franchises, do not own the
airwaves and frequencies through which they transmit broadcast signals and images. They are
merely given the temporary privilege of using them. Since a franchise is a mere privilege, the
exercise of the privilege may reasonably be burdened with the performance by the grantee of
some form of public service.
Consequently, a license permits broadcasting, but the licensee has no constitutional right to be
the one who holds the license or to monopolize a radio frequency to the exclusion of his fellow
citizens. There is nothing in the First Amendment which prevents the government from requiring
a licensee to share his frequency with others and to conduct himself as a proxy or fiduciary with
obligations to present those views and voices which are representative of his community and
which would otherwise, by necessity, be barred from the airwaves. As radio and television
broadcast stations do not own the airwaves, no private property is taken by the requirement that
they provide airtime to the Comelec.
Meaning of Public Use
Traditional Concept: The number of actual beneficiaries determines public purpose. If the
benefits redound in favor of individuals, then the purpose is not public.
Concept of vicarious benefit: Abandons the traditional concept. The purpose is public as
long as the society in general is indirectly benefited, i.e. conversion of a slum area into a model
housing community. There is a vicarious advantage to the society.
Republic v. Salem Investment Corporation, G.R. No. 137569, June 23, 2000, 2nd Div.
[Mendoza]
The first is concerned with the determination of the authority of the plaintiff to exercise the power
of eminent domain and the propriety of its exercise in the context of the facts involved in the suit.
It ends with an order, if not dismissal of the action, "of condemnation declaring that the plaintiff
has a lawful right to take the property sought to be condemned, for the public use or purpose
declared in the complaint, upon the payment of just compensation to be determined as of the date
of the filing of the complaint"xxx.
The second phase of the eminent domain action is concerned with the determination by the court
of "the just compensation for the property sought to be taken." This is done by the court with the
assistance of not more than three (3) commissionersxxx
It is only upon the completion of these two stages that expropriation is said to have been
completed. Moreover, it is only upon payment of just compensation that title over the property
passes to the government. Therefore, until the action for expropriation has been completed and
terminated, ownership over the property being expropriated remains with the registered owner.
Consequently, the latter can exercise all rights pertaining to an owner, including the right to
dispose of his property, subject to the power of the State ultimately to acquire it through
expropriation.
- Is prior unsuccessful negotiation a condition precedent for the exercise of eminent domain?
SMI Development Corporation v. Republic, 323 SCRA 862, Jan. 28, 2000, 3rd Div.
[Panganiban]
Current effective law on delegated authority to exercise the power of eminent domain is found in
Section 12, Book III of the Revised Administrative Code, which provides:
SEC. 12. Power of Eminent Domain The President shall determine when it is necessary or
advantageous to exercise the power of eminent domain in behalf of the National Government, and
direct the Solicitor General, whenever he deems the action advisable, to institute expropriation
proceedings in the proper court.
The foregoing provision does not require prior unsuccessful negotiation as a condition precedent
for the exercise of eminent domain. In Iron and Steel Authority v. Court of Appeals, the President
chose to prescribe this condition as an additional requirement instead. In the instant case,
however, no such voluntary restriction was imposed.
- When Ownership transferred to Expropriator
Republic v. Salem Investment Corporation, G.R. No. 137569, June 23, 2000, 2nd Div.
[Mendoza]
The recognized rule, indeed, is that title to the property expropriated shall pass from the owner to
the expropriator only upon full payment of the just compensation. Jurisprudence on this settled
principle is consistent both here and in other democratic jurisdictions.
When may the Expropriator enter the Property?
Upon receipt of the landowner of the corresponding payment or, in case of rejection or no response
from the landowner, upon the deposit with an accessible bank designated by DAR of the
compensation in cash or in Land Bank Bonds in accordance with this Act, the DAR shall take
immediate possession of the land xxx (Land Bank v. CA & DAR v. CA)
When used as Implement of Police Power
Power of Eminent Domain is utilized as an implement of Police Power to promote the welfare of
the people.
It is the Constitution itself which mandated the pursuit of Agrarian Reform Program to address
once and for all the plight of the landless and the poor which for centuries has been the source of
discontent and unrest. (ASLP v. Sec. DAR)
POWER OF TAXATION
Does the power to tax include the power to destroy?
The power to tax includes the power to destroy if it is used as an implement of the police power
(regulatory) of the State. However, it does not include the power to destroy if it is used solely for
the purpose of raising revenue. (ROXAS vs. CTA)
NOTES:
> If the purpose of taxation is regulatory in character, taxation is used to implement the police
power of the state.
> If the power of taxation is used to destroy things, businesses, or enterprises and the purpose is
to raise revenue, the court will come in because there will be violation of the inherent and
constitutional limitations and it will be declared invalid.
Tax Exemptions
Sec. 28[3], Art. VI, 1987 Constitution
SECTION 28. (3) Charitable institutions, churches and parsonages or convents appurtenant
thereto, mosques, non-profit cemeteries, and all lands, buildings, and improvements, actually,
directly, and exclusively used for religious, charitable, or educational purposes shall be exempt
from taxation.
Sec. 4[3], Art. XIV, 1987 Constitution
SECTION 4. (3) All revenues and assets of non-stock, non-profit educational institutions used
actually, directly, and exclusively for educational purposes shall be exempt from taxes and duties.
Upon the dissolution or cessation of the corporate existence of such institutions, their assets shall
be disposed of in the manner provided by law.
Proprietary educational institutions, including those cooperatively owned, may likewise be
entitled to such exemptions subject to the limitations provided by law including restrictions on
dividends and provisions for reinvestment.
POWER OF TAXATION
It is the inherent power of the state to raise revenues to defray the expenses of the
government or for any public purpose. This can be done through the imposition of burdens or
imposition on persons, properties, services, occupations or transactions.
The importance of taxation derives from the unavoidable obligation of the government to
protect the people and extend them benefits in the form of public projects and services. Taxation
is based on necessity and the reciprocal duties of protection and support between the state and
those that are subject to its authority.
Who may exercise the power of taxation?
It is the Congress who exercises the plenary power to tax. However, it may be delegated by
congress to local government units under such terms and conditions as may prescribed by law.
The following are the requisites or limitations on the power to tax:
1. Public purpose;
2. Territoriality;
3. Uniformity;
4. Due process and equal protection clause;
5. Constitutionally exempt properties cannot be taxed;
6. In the assessment and collection of certain kinds of taxes, notice and opportunity for hearing
must be provided.
Central Bank of the Philippines v. CA, 220 SCRA 536, march 30, 1993, En Banc [Bellosillo]
(When prior notice and hearing may be dispensed with)
We held that a previous hearing is nowhere required in Sec. 29 nor does the
constitutional requirement of due process demand that the correctness of the
Monetary Board's resolution to stop operation and proceed to liquidation of first adjudged before
making the resolution effective.
One can just imagine the dire consequences of a prior hearing; bank runs would be the
order of the day, resulting in panic and hysteria. In the process, fortunes may be wiped out and
disillusionment will run the gamut of the entire banking community." Admittedly, the mere filing of
a case for receivership by the Central Bank cab trigger a bank run and drain its assets in days or
even hours leading to insolvency even if the bank be actually solvent. The procedure prescribed
in Sec. 29 is truly designed to protect the interest of all concerned, i.e., the depositors, creditors
and stockholders, the bank itself, and the general public, and the summary closure pales in
comparison to the protection afforded public interest. At any rate, the bank is given full opportunity
to prove arbitrariness and bad faith in placing the bank under receivership, in which event, the
resolution may properly nullified and the receivership lifted as the trial court may determine.
REALTIVE CONSTITUTIONALITY
The ponencia advocates the application of the theory of relative constitutionality to the present
case. The theory says that a statute valid at one time may become unconstitutional at another,
because of altered circumstances or changed conditions that make the practical operation of such
a statute arbitrary or confiscatory. Thus, the provisions of that statute, which may be valid as
applied to one set of facts but invalid as applied to another, cannot be merely compared with those
applicable under the Constitution.
HIERARCHY OF RIGHTS
In the hierarchy of civil liberties, the rights of free expression and of assembly occupy a
preferred position as they are essential to the preservation and vitality of our civil and political
institutions; 10 and such priority "gives these liberties the sanctity and the sanction not permitting
dubious intrusions." 11
The superiority of these freedoms over property rights is underscored by the fact that a mere
reasonable or rational relation between the means employed by the law and its object or purpose
that the law is neither arbitrary nor discriminatory nor oppressive would suffice to validate a
law which restricts or impairs property rights. 12 On the other hand, a constitutional or valid
infringement of human rights requires a more stringent criterion, namely existence of a grave and
immediate danger of a substantive evil which the State has the right to prevent. So it has been
stressed in the main opinion of Mr. Justice Fernando in Gonzales vs. Comelec and reiterated by
the writer of the opinion in Imbong vs. Ferrer. 13 It should be added that Mr. Justice Barredo in
Gonzales vs. Comelec, supra, like Justices Douglas, Black and Goldberg in N.Y. Times Co. vs.
Sullivan, 14 believes that the freedoms of speech and of the press as well as of peaceful assembly
and of petition for redress of grievances are absolute when directed against public officials or
"when exercised in relation to our right to choose the men and women by whom we shall be
governed," 15 even as Mr. Justice Castro relies on the balancing-of-interests test. 16 Chief Justice
Vinson is partial to the improbable danger rule formulated by Chief Judge Learned Hand, viz.
whether the gravity of the evil, discounted by its improbability, justifies such invasion of free
expression as is necessary to avoid the danger.
PROPERTY RIGHT
Section 1, Article III of the Constitution provides that no person shall be deprived of life, liberty or
property without due process of law. Petitioner invokes this provision, asserting that the revocation
of his PTCFOR pursuant to the assailed Guidelines deprived him of his vested property right
without due process of law and in violation of the equal protection of law.
Petitioner cannot find solace to the above-quoted Constitutional provision.
In evaluating a due process claim, the first and foremost consideration must be whether life, liberty
or property interest exists.[32] The bulk of jurisprudence is that a license authorizing a person to
enjoy a certain privilege is neither a property nor property right. In Tan vs. The Director of
Forestry,[33] we ruled that a license is merely a permit or privilege to do what otherwise would be
unlawful, and is not a contract between the authority granting it and the person to whom it is
granted; neither is it property or a property right, nor does it create a vested right. In a more
emphatic pronouncement, we held in Oposa vs. Factoran, Jr.[34] that:
Needless to say, all licenses may thus be revoked or rescinded by executive action. It is not a
contract, property or a property right protected by the due process clause of the Constitution.
Aspects of Due Process of Law (Sec. 1, Art. III)
a. substantive due processrequires 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 processone which hears before it condemns as pointed out by Daniel
Webster.
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)
Requisites of judicial due process
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.
The requirements of procedural due process are as follows:
1. There must be an IMPARTIAL AND COMPETENT COURT with judicial power to hear
and determine the matter before it
2. Jurisdiction MUST HAVE BEEN LAWFULLY ACQUIRED over the person of the defendant
or over the property subject of the proceeding
3. The defendant must be given an OPPORTUNITY TO BE HEARD
4. Judgment must be RENDERED UPON LAWFUL HEARING
The void-for-vagueness doctrine states that "a statute which either forbids or requires the doing
of an act in terms so vague that men of common intelligence must necessarily guess at its meaning
and differ as to its application, violates the first essential of due process of law."[13] The
overbreadth doctrine, on the other hand, decrees that "a governmental purpose may not be
achieved by means which sweep unnecessarily broadly and thereby invade the area of protected
freedoms."
A facial challenge is allowed to be made to a vague statute and to one which is overbroad
because of possible "chilling effect" upon protected speech. The theory is that "[w]hen statutes
regulate or proscribe speech and no readily apparent construction suggests itself as a vehicle for
rehabilitating the statutes in a single prosecution, the transcendent value to all society of
constitutionally protected expression is deemed to justify allowing attacks on overly broad statutes
with no requirement that the person making the attack demonstrate that his own conduct could
not be regulated by a statute drawn with narrow specificity."[15] The possible harm to society in
permitting some unprotected speech to go unpunished is outweighed by the possibility that the
protected speech of others may be deterred and perceived grievances left to fester because of
possible inhibitory effects of overly broad statutes.
In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed
for testing "on their faces" statutes in free speech cases or, as they are called in American law,
First Amendment cases. They cannot be made to do service when what is involved is a criminal
statute. With respect to such statute, the established rule is that "one to whom application of a
statute is constitutional will not be heard to attack the statute on the ground that impliedly it might
also be taken as applying to other persons or other situations in which its application might be
unconstitutional."[20] As has been pointed out, "vagueness challenges in the First Amendment
context, like overbreadth challenges typically produce facial invalidation, while statutes found
vague as a matter of due process typically are invalidated [only] 'as applied' to a particular
defendant."[21] Consequently, there is no basis for petitioner's claim that this Court review the
Anti-Plunder Law on its face and in its entirety.