constitution 2.doc

CONSTITUTIONAL LAW REVIEW 2-BILL OF RIGHTS Atty. Vincent Paul Montejo

INDIVIDUAL RIGHTS

It can be generally understood to mean that this is a study of a balance between the exercise of authority on one hand and limitation based on the rights of citizens on the other, so that while government authority may not be exercised absolutely, so much the rights cannot be claimed absolutely as well. So there has to be a balance between the two. In our understanding, we do not know that the Constitution, we believe that the Constitution is a study or is a limitation on all authorities and thus, there is that conception that Constitutional provisions are generally applicable only against the State. In fact in a manner of speaking, in construing constitutional provisions, it is always construed as a limitation on government authority. We all understand that it is not a grant when a provision of the constitution mentions or speaks of or refers to a particular government authority, it is not a grant of that power or authority but rather it is suppose to be a limitation. The problem in some cases is that, mostly in the Bill of Rights, can private citizens or persons claim rights found in it because it would seem that a strict interpretation of the decisions of the Supreme Court on Constitutional violations affecting rights of persons, it usually is a clash between the power of the State as exercised by its agents as against the right of the citizens, so that if there is a claim of a violation of a constitutional right by a private person as against another private person, normally, there is improper invocation of the Bill of Rights. You have seen this, say in allowable searches and seizures or unreasonable arrests. Can the privilege or right against unreasonable arrests or seizures be claimed by a private person as against another private person? Normally we invoke the limitations or proscriptions under the Bill of Rights, it is not capable simply because by interpretation, the Bill of Rights or the Constitutional provision affecting rights are rightfully claimable only by a valid person against the State. However, if the invocation of a violation of a Constitutional right is not for the protection under the Constitution but for purposes of claim for damages, then Article 32 of your New Civil Code gives you or grants you the right. A reading of Article 32 grants a private person a right to claim damages if there is a violation of a Constitutional right, a rundown of that would tell you:

1. Freedom of Religion;2. Freedom of Speech;3. Freedom of Right to the Press;4. Freedom Against Illegal Detention;5. Freedom of Suffrage;6. Right against deprivation of Property without due

process of Law

Up to Freedom of Access to the Courts there are nineteen (19) listed rights there. This entitles a private person to claim for damages. So then again, correctly construed therefore, while the Constitutional provision or the Bill of Rights cannot be the basis of proscription (*prohibition), it can be the basis of a Right based on a claim for damages. So, if say a private person has detained you, can that Private Person be liable for unreasonable arrests? Definitely not, but may he be liable for damages? Definitely he can be and in fact under Article 32, the claim for damages can range from all applicable damages which can be claimed, from moral to exemplary, actual damages is even included. So for example, actual liability based on a violation of a right, then a private person may claim as against that right. So that is the extent of the claim of a private person for violation of his

constitutional right as against another private person. The rights guaranteed under the Bill of Rights respecting those, cannot be claimed as against a private person simply because, we have to understand, that these are limitations to government authority.

So, the powers are: Police Power, Eminent Domain, and Power to Tax.

POWER TO TAX

There’s not much discussion on Power to Tax because this is mostly discussed in your Taxation Law although the Constitution requires some rules to be followed with respect to

Legislation, as we have taken last in Political Law I, like the rule on Taxation must be uniform and there are certain provisions with respect to exemptions - Real Property Tax, Income Tax and some other taxes which non-profit or non-stock institutions are suppose to be exempted from.

EMINENT DOMAIN

With respect to Eminent Domain, the discussion there under Section 9 of Article 3 would lead to the question of whether or not the taking is for public use. As you all understand, Eminent Domain is one of the classes or rights or Powers of the State which is generally subject to so many restrictions. From the definition or characterization of Eminent Domain:

1. there must have to be a law;2. there must have to be taking of private property;3. there must have to be payment of just compensation;4. the taking must be for Public Use.

a. Concept of Public Use

In time, the concept of Public Use has somehow evolved from the concept of being available to so many, the Direct Advantage Test, now it has evolved to meet or to include the Indirect Advantage Test as well, which grants or allows taking for Public Use even if there are a few direct beneficiaries also knows as the Indirect Beneficiaries would be the public in general. Also it is not limited to taking for free because even if the taking is for free, there should be taking for Public Use. The entire idea being that, it generally benefits the public in general although not limited to direct advantage.

b. Just Compensation

With respect to the Payment of Just Compensation, well, most of the questions there or cases at least, while there are a few cases involving the actual valuation, most of the cases on just compensation deals with when should compensation or the value be determined. Ordinarily, when property is taken for public use, the ordinary courts in your Rules on Civil Procedure, the Expropriator must have to file a petition for expropriation. Therefore, normally, the property is valued at the time a petition is filed. So, normally, it is determined when a petition for expropriation is filed. However, there are certain situations where, the actual taking precedes the actual filing. Meaning, there is actual expropriation without going through the process of filing a petition. In that case, the question is again asked, when should

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the petition or the value of the property valued: at the time the property was actually taken or at the time the Petition for the taking of the property has been actually filed. A consideration must have to be determined, whether or not the property has in fact, in the meantime increased its value because of the actual taking. If the actual taking has a necessary increase in the value of the property, meaning, were it not for the actual expropriation, the property should have had increased in value, then the property should be valued at the time the property is taken not at the time the Petition is filed because it will unnecessarily benefit or it will amount to unjust enrichment on the part of the property owner if the property should be valued after the expropriation has been had. But if the increase in value is the normal increase, increment so to speak, of the value of the property by mere passage of time, then the property should be valued at the time the Petition is filed and not at the time the property has been taken.

There is also that consideration whether or not the property has been taken wholly or only in part because of the concept of Consequential Damage and Consequential Benefit. Consequential Benefit, as the term suggests, means that because of the expropriation, there is benefit which belongs to the property owner. Conversely, if it shall be Consequential Damages because of the expropriation, the remainder of the property is not that in value (siguro invaluable gusto niya sabihin.☺) to the property owner because it is more disadvantageous than beneficial, in which case, just compensation has to be determined.

I think 10 years back in the Bar exams, there’s not much in Eminent Domain because again, it’s something that you ought to know.

POLICE POWER

With respect to Police Power, however, there is this legal notion that Police Power is the least limitable of all the powers of the State. It affects almost all facets of our lives and normally, it is in ___ regulation. By the way, correctly understood, the powers of the state are normally exercised through regulation. Even if you talk about execution, none can be executed unless there is prior legislation. So for example, when you talk about regulatory or prohibitory legislation being implemented, it always starts with or is preceded by legislation. So normally, it is exercised by Congress. In the case of Eminent Domain, because of the nature of Expropriation, it is allowable that the Expropriator is a private individual because the subject of their activity is with some Public character like Public Utility Services – your water, electricity, telecommunications – these are quasi-public in character, for which they have been granted by law, the Right to Expropriate.

In Police Power, however, generally it is limited to Congress or law-making bodies. Remember in Valid Delegation in Political Law I, we said one of the exceptions which is generally allowed is delegation to Local Government Units. We said that this is one occasion where there is no positive rule of law but it is allowed by practice since time immemorial and this is more seen in terms of legislation regarding police power exercise. So anything that is affecting any Public Interest, Public Health, Public Morality, anything of those Public in character, the State

has the right to deal with or intrude into because it has the power to regulate such rights or exercise of rights.

With respect to Local Government Units, the allowed or existing legislation allowing it is the General Welfare Clause in your Republic Act 7160 or the Local Government Code of 1991. This is where all which is beneficial to the Public Welfare is allowable. In Local Government Units, there are basically 2 Types of Delegate Authority with respect to Police Power :

1. General Grant which is that provided under Section 16 of RA 7160; the other is

2. Specific Grant which may come in the form of Special Legislation.

So, every now and then, while there may have been a General Grant to Local Government Units, under the General Welfare Clause, every now and then Congress may come up with a legislation which would be beneficial to the welfare of the citizens, so the Local Government Units. So these are Special or Specific Grants. Now with respect to Congress in general, the test used to determine the validity of the Police Power measure is limited to two (2) :

1. Lawfulness of the Subject; and 2. Lawfulness of the Means.

a. Lawfulness of the Means

When we say Lawfulness of the Means, it simply is characterized by the demands of the many as compared to the protection of a few. So to illustrate it, an activity or the right may be regulated because it is beneficial to many as compared to being beneficial to a few. So, if it is beneficial to so many, then it may be allowable as a Lawful Means. In most cases involving exercise of Police Power, it is usually tested in these two (2) : Lawfulness of the Subject and the Lawfulness of the Means and the usual issues are on the Lawfulness of the Means, not so on Lawfulness of the Subject.

b. Lawfulness of the Subject

Lawfulness of the Subject is usually given or granted because there's not much difficulty in understanding any of those Public Interest matters whether it's Public Health, Public Morality, Public

Safety. Anything that is Public to us, generally, that is given as a lawful subject. However, as to the means, it would be a different matter because there must have to be a reasonable relationship between the objectives of the legislation and the means to achieve it because the end is never justified by the means or vice-versa. Both must have to be lawful. So in most cases, this has to be done. Assuming that there is a question on the propriety or validity of a Police Power measure or regulatory measure, one must have to dig deep whether this has been subject or there has been a decision on the matter already, so assuming that there is, your answer shall be based on that decision. But assuming that you could not remember any decision on the matter, then it is safe to deal with the question based on these two tests:

1. Is there a Lawful Subject; and2. Whether the means employed were lawful.

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So, it largely depends on whether the Means are lawful.

DUE PROCESS

The case of YRASUEGI vs. PAL on the application of the Bill of Rights (BoR) against the primary actions, whether or not the flight attendant steward who failed to meet the weight requirement, on the policy of weight requirement, based on height and build or structure. Petitioner repeatedly failed to meet the requirement, he was 5'8" and his ideal weight is 166 lbs., he was more than 200 despite the fact the company gave him time to lower down his weight, he did not reach the desired weight, he was dismissed. One of petitioner's contention on the dismissal is that the policy is the rule imposition by PAL regarding his weight is violative of his equal protection because it discriminates the obese people. SC said that the BoR is not meant to be invoked against acts of private individuals, even the US SC in interpreting this

amendment which is the source of our equal protection guarantee has been consistent in saying that equal protection directs no shield against private conduct.

SUBSTANTIVE DUE PROCESS

ROMUALDEZ vs. COMELEC the OEC has amended relating to election offenses, Sec 45(j) OEC, a provision which states that: "x x x violation of any provision of this Act." Under the law on registration of voters there is this requirement that if you were to register anew, you have to declare under oath that you are an existing registered voter. Petitioners Romualdez registered as voter without actually declaring beforehand that they were registered voters already. Thus they were charged under the Sec. 45(j).

Petitioner's contention: without substantial due process because lack of notice, based on that PRINCIPLE OF VOID FOR VAGUENESS DOCTRINE, PEOPLE vs. NASARIO, a statute is void if men of ordinary intelligence would necessarily differ as to its meaning would necessarily differ as to its application so that if it cannot be really be saved even with the use of construction then the law is supposed to be void because by its vagueness, people could not ordinarily determine what acts to comply or what acts not to do in order to be covered by the law. It starts with the principle that ignorance of the law excuses no one from compliance, and therefore if we were made aware of it, then we are covered by it, but because of the fact that the law is vague on its terms how could we be covered or apprised if we do not know what the law is.

But the matter on VOID FOR VAGUENESS DOCTRINE is not based simply on the so-called difficulty in understanding due to lack of precision or specification in the phraseology, Congress is not expected to define all terms or all acts with specification or certainty that there is no variance in definition or understanding. The variance in understanding may necessarily be brought about by the imprecise language used, but such fact of imprecision should not make the provision vague and therefore void, it is only when no amount of construction can save the provision of the law.

In this case of Romualdez, the SC even made a pronouncement on so-called FACIAL INVALIDATION or otherwise known as ON-ITS-FACE INVALIDATION. In American jurisprudence, this has been discussed to mean that the court should not declare a statute vague on its face simply because of the language used, in some jurisdiction there is even a LINE BY LINE SCRUTINY.

Facial Invalidation is not accepted to declare a statute as unconstitutional because it covers even those who are not yet charged before the law by reason of violation of statute. It says: " in Facial Invalidation or Line by Line Scrutiny is an examination of the entire law pinpointing its flaws and defects not only on the basis on its actual operation of the parties involved but on the assumption or prediction that its very existence may cause others not before the court to refrain from constitutionally protected speech or on the ground that there may be applied to others not before the court whose activities are constitutionally protected. The court cannot declare a law unconstitutional based on facial invalidation because it places others who are not yet charged before the law possibly to be made liable or may be excused accordingly.

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If a person therefore will challenge a law, the person must have to show before the court why he is not covered under the statute and if so, then the court will interpret the provision based on his personal circumstances. Again, this has something to do with the vagueness of a provision of a law, of course if the terms or phrases or the provision itself are not vague, then there is no application for facial invalidation or void for vagueness doctrine.

That provision ("violation of any provision of this Act shall be penalized") is not void because that provision should be read in relation with the rest of the provisions which are penal in character, of course there are some provisions really which cannot be violated, but if there is a specific provision which by intent of the law ought to be penalized, then that phrase "violation of any provision of this Act or law" are to be interpreted accordingly.

In DE LA SALLE UNIV. vs. CA, in due process (DP) there are two matters there, one is procedural and one is substantive. In substantive like in the case of Romualdez, it requires:

1) the law is intrinsically valid,

2) law must have to be published before it takes effect, otherwise you cannot be held liable under it.

Assuming that the substantive validity is given, the law cannot be imposed upon the individual if the individual's procedural DP is likewise violated.

In Procedural Due Process (PDP) we have: 1) judicial , which is common, 2) adminstrative cases , as the ANG TIBAY vs. CIR ruling, 3) questions on procedure with repsect to school

disciplinary tribunal, 4) termination of employment in private sector,

necessarily follows the three-notice rule because of the requirement of DP. But that ruling has been changed. It is part of statutotry right, not constitutional DP.

In fact, new ruling: it does not require so-called formal-type hearing, but only requires the grant of the employee sufficient opportunity. DO NOT CONFUSE SUFFICIENT OPPORTUNITY AS THE SAME AS DUE PROCESS CLAUSE, where ample opportunity is likewise given. One is based on the constitution. In the labor code is substantive, wherein if not for that provision of law on termination, then the employee may not be entitled at all to such notice and hearing which is not the formal-type.

In the old case of ATENEO and GUZMAN case, and now this case of DLSU, both involve fraternity related violence, where these students were proceeded against in the school's disciplinaty tribunal, they were tried, decision was rendered and they were expelled, but the expulsion order was not granted by the CHED, it was not approved, and therefore it went all the way up to the court and DLSU went eventually up to the SC. While there is some sort of a formal-type of investigation or hearing, the hearing is summary. Procedure requires only:

1) the students must be informed in writing of the nature and cause of the accusation against them,

2) they shall have the right to answer the charges against them and with assistance of counsel if desired,

3) they shall be informed of the evidence against them, 4) they shall have the right to adduce evidence on their own

behalf, 5) the evidence must be duly considered by the

investigating community or official designated by the school authorities to hear and decide the case.

Due Process grants notice and hearing. So for long as there is opportunity for him to present their case or side of the controversy, no matter how informal the proceeding is, Due Process is satisfied, and the right to cross-examination is never allowed in disciplinary tribunal hearings. DP in disciplinary cases involving students does not entail proceedings and hearings similar to those prescribed for actions and proceedings in courts of justice. The proceedings in school discipline cases must be summary and cross-examination is not an essential part. Since the case of GUZMAN vs. NATIONAL UNIV. (1986), it has remained to be the same up to today.

DUE PROCESS & EMINENT DOMAIN

The case of NEPOMUCENO vs. CITY OF SURIGAO, a case of actual expropriation where a portion of their property was taken by the government in the city of Surigao for highway, taken in 1960, but they only filed the case in the 1990s. Property shall be valued at the time of actual exproriation or taking (1960s) because this was when they actually suffered loss because of the taking of their property. They cannot be benefited with the increase in value because it has been turned into a highway or road necessarily the value has increased substantially because of the exercise of eminent domain, that should not benefit them . However, it does not mean that they are not entitled to any increase in increment because the law says if there is money due then there is supposed to be legal interest. It shall bear legal interest from time it was taken up to the time the amount are actually paid to them.

In this case of PNOC vs. MAGLASANG (2008), involves 2 properties which initially were leased to PNOC. After a couple of years, in 1994, the PNOC filed a petition for exproriation in the trial court, a writ of execution was issued after they paid initial valuation and then the problem: how much and when should the property be valued. Taking must be more than a momentary period and that it must have to substantially affect the right of the property owner of the ordinary uses of his property. Even if the government or exproriator has not actually physically taken your property, if the property owner has been deprived substantially of the ordinary uses or inherent limitation attached to it. When PNOC took the property under lease in 1992, there was no taking in concept of eminent domain because while PNOC may have taken possession of those properties, they did not take it in the concept of an exproriator, meaning, when taking the property lease, the taking was of momentary period, that is, the period of lease. TAKING MUST BE MORE THAN A MOMENTARY PERIOD.

EQUAL PROTECTION

"…nor shall any person be denied the equal protection of the laws".

This is part of DP. However, when there is a general issue on violation of DP, it is usually under the DP clause, but if there is a specific violation of a particular class of persons involved, they usually claim violation of equal protection. Just like Eminent

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domain, this is supposed to be dynamic, it depends on the circumstances and time as to what constitutes a valid classification or valid application of the law. Equal Protection definition: all things or persons similarly situated should be treated alike, both as to as the rights conferred and responsibilities imposed. So the law does not require absolute application of the law to everyone but absolute application of the law to those in a particular class so the law allows classification among individuals, persons or things. The classification to be valid, must generally follow these conditions or requisites:

1) must be based on substantial distinction; 2) germane to the purpose/s of the law; 3) must not be limited in existing conditions only, applies

to all things and people in present and future conditions; and

4) applicable equally to all members of the same class.

These requisites have been reiterated in the case of BRITISH AMERICAN TOBACCO vs. CAMACHO, involving amendment to the NIRC provisions regarding sin taxes which has something to do with tobacco obviously. There are certain provisions there which increase taxes on tobacco and there has been classification based on whether or not the tobacco brand imported, but there is a provision there which provides for new brands, there is a classification – freeze provision. Tax is frozen for a while because the tobacco brand is new.

So, if there is a new brand, even if it falls under the same classification, there is a provision to freeze the rates per volume. So one of the issues raised is whether or not this provision is confiscatory or violative of equal protection. Now, the SC stated the conditions for valid classifications (see above). It went on to say that normally the basis for discussing or testing the validity of classification. Whereas in police power, we made mention yesterday it is generally tested on the lawfulness of the subject and the lawfulness of the means.

In classification, what is used is RATIONAL BASIS TEST - a legislative classification to survive an equal protection challenge must be shown to:

1) rationally further legitimate state interest, 2) classification must be reasonable, 3) basis for valid classification, 4) it must rest upon some ground of difference having a

fair and substantial relation to the object of the legislation.

In this particular case, the government has increased sin taxes. What is the legitimate state interest? So that they will have more money to pay dinner in the Time New York Restaurant? Perhaps this is for public health. Increase sin taxes so that people will not buy sin products.

In testing or questioning the violation of equal protection, not only must you show the rational basis test, you must also have to show that there is a differential attitude to legislative classification and the reluctance and show to the court such because of his reluctance to be valid along it. A law is supposed to be presumed valid and not unconstitutional. So you must show, based on the rational basis test that there is really no valid classification and secondly, you must have to show there is a differential to legislative classification, otherwise, the court will not easily

declare a law to be invalid and in violation of equal protection clause.

The case of MANILA INTERNATIONAL AIRPORT vs. OLONGAPO MAINTENANCE, highlights the last requisite or condition of valid classification which is "it applies equally all those belonging to the same class". This case involves the NAIA 3 project which was not granted to Olongapo Maintenance Inc., whether or not the laws on bidding for this particular type of project is valid, sort of saying it favors some and it is disadvantageous to others.

SC said: the law as it is may not be invalid, because it is not discriminatory but even if the law itself is not discriminatory it may become so and therefore violative of equal protection if it is applied discriminatorily.

It cited the case of REYES CONSTRUCTION vs. CA, it said that although the law may be fair on its face and impartial in appearance, yet if applied and administered by the public authorities charged with the administration with an evil eye and unequal hand so as to practically make unjust and illegal determination, the denial of equal protection is still within the prohibition of the constitution.

So when valid classification requires that the classification of the law must have to be applied equally to all those who belong in the same class, it must be applied with equal force and effect because even if such law based on the classification on its face is not discriminatory but if its application is or has become discriminatory then it still be a violation of equal protection.

SEARCH AND SEIZURES

Now we are starting with Criminal Procedure under Art. III. These are the pre-arrest rights of the accused referring to Sections 2, 3; Post arrest refers to Section 12, 13, and 19; during trial under Section 14, 19; and after trial will be under Section 16, 19 and 21.

Now, under Article 2 respecting unreasonable search and seizure, the proscription is against unreasonable warrantless search. So for so long as the search and seizure, whether with or without warrant is real then they are all proscribed. Under Rule 126 of your Rules of Court, which speaks of search and seizure, this will be the rule respecting applications, respecting issuances and implementation of a search warrant. Section 2 of Rule 126 provides for places where a search warrant may be filed. It may be filed:

RULE 126SEC. 2. Court where application for search warrant shall be filed.—An application for search warrant shall be filed with the following:(a) Any court within whose territorial jurisdiction a crime was committed.(b) For compelling reasons stated in the application, any court within the judicial region where the crime was committed if the place of the commission of the crime is known, or any court within the judicial region where the warrant shall be enforced.

However, if the criminal action has already been filed, the application shall only be made in the court where the criminal action is pending, (n)

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This is a new provision. If you relate this to present day Davao events, the issuance for a search warrant for the Laud Quarry which was made in Metro Manila, eventually such issuance of the warrant was quashed because a warrant issued in Manila, cannot be served in Davao City, ordinarily.

Do you know the exceptions to that rule where an application shall be made in Metro Manila but it can be served elsewhere? –

Applications for Search Warrants under the Intellectual Property Law. This is allowed to be filed in the National Capital Judicial Region before a Judge even if it is to be served in Jolo or Basilan.

But ordinarily, that warrant must have to be issued in the court which has territorial jurisdiction over the crime or in the court in the Judicial Region where the crime has been committed. This somehow would modify the rulings before involving Malaluan that the warrant issued in one judicial region can be served elsewhere provided that the applicant and/or witnesses are presented before the issuing court. It would seem now in the new provision, that it must have to be in the court where the crime or the elements of the crime have been committed.

Now, what are the requisites for a Search Warrant? Under Section 4:

1. It shall not issue except upon probable cause; 2. in connection with one (1) specific offense; 3. to be determined personally by the Judge after

examination under oath or affirmation of the complainant and the witnesses he may produce; and

4. particularly describing the place to be searched and the things to be seized which may be anywhere in the Philippines.

Now this case of SANTOS vs. PRYCE GASES, Nov. 23, 2007. The basic issue here on the issuance of the Search warrant is whether the Judge in issuing a search warrant, can thereafter quash the search warrant on the ground that there is no probable cause to charge or indict the respondent.

This has something to do with violating the Intellectual Property because of the LPG Tanks of Pryce Gases. Apparently the distributor was in possession of LPG tanks which were not of Pryce’s. So a warrant was issued. A warrant was applied for and the judge found probable cause to issue the warrant. When the warrant was served and it was implemented, the LPG Tanks were surrendered, a Motion to Quash was filed and the judge in the Motion to Quash granted the same saying that there is no probable cause to charge or indict the respondent.

So was the order of Quashal issued by the judge valid? The Supreme Court said it was not valid . The reason for the ruling of the Supreme Court was based on the definition or determination of probable cause.

What is probable cause for purposes of issuing a warrant - such facts and circumstances which would lead a reasonably discreet and prudent man to believe that a crime has been committed, that the objects or things or effects of the crime is probably in the place intended to be searched and therefore must

be seized. That is the determination of a probable cause for the issuance of a warrant.

What is probable cause for the filing of an information in court? Under your Rules 112 on Preliminary Investigation, is it the same? The answer is NO. So that even if the Judge has not found probable cause to charge the respondent for trial, Probable Cause under Rule 112 on Preliminary Investigation - such facts and circumstances which would lead a Judge to believe or the investigating officer to believe that a crime has been committed and that the respondents are probably guilty thereof and must therefore be held for trial.

That is the probable cause required to charge a respondent or a person in court which is now the same probable cause which is required for the issuance of the warrant.

So while the judge may have found probable cause to issue a warrant, the fact that thereafter, he does not find probable cause to officially and formally charge the respondent in court, which does not mean that the warrant should be quashed.

However, Supreme Court made it clear that while the probable cause termination in the issuance of a warrant is different from probable cause in the filing of the charges, the prosecutor should not be bound by the finding of probable cause by the issuing court. Meaning, those two (2) are differently appreciated.

So, while eventually if the warrant will be quashed, the question is, should there be probable cause to charge respondent for trial. That should depend on the appreciation by the investigating officer, of whether or not a crime has been committed, whether or not the respondent could probably be guilty thereof and should be held for trial. That should be different from the probable cause determination in the issuance of a warrant.

Then in this case of HON NE CHAN V HONDA (541 SCRA 249), this is still on determination of probable course. In this case, what happened was, Honda Motors Corporation - Japan filed an application for violation of Intellectual Property because this Hon Ne Chan has been distributing motorcycles bearing the same models of Honda: Wave, DSM Wave, DSM Super Wave 110 and Wave R125. So, there were several questions raised. One is determination on probable cause. The Supreme Court re-stated what definition of probable cause is and quoted a decision of the court in Microsoft Corporation (Microsoft vs. Maxicorp ata – 438 SCRA 224):

The determination of probable cause does not call for the application of rules and standards of proof that a judgment of

RULE 112SECTION 1. Preliminary investigation defined; when required.—Preliminary investigation is an inquiry or proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial.

Except as provided in section 7 of this Rule, a preliminary investigation is required to be conducted before the filing of a complaint or information for an offense where the penalty prescribed by law is at least four (4) years, two (2) months and one (1) day without regard to the fine, (1a)

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conviction requires after trial on the merits. As implied by the words themselves, "probable cause" is concerned with probability, not absolute or even moral certainty.

The prosecution need not present at this stage proof beyond reasonable doubt. The standards of judgment are those of a reasonably prudent man, not the exacting calibrations of a judge after a full-blown trial.So, it is summary in character except to determine whether or not the objects or effects of a crime are probably in the place where the search is intended, so that these effects or objects can be seized not the proof beyond reasonable doubt whether or not the respondent should be held liable therefore.

DETERMINATION OF PROBABLE CAUSE

Now, with respect to the determination of probable cause, the rules require that there must have to be personal examination by the judge of the applicant and/or the witnesses and the testimonies of the applicant and/or witnesses must be based on personal knowledge.

Well, we all understand the concept of personal knowledge. It’s a testimony therefore excluded, those which he himself has perceived by the use of any of his senses. So, he has tasted the illegal item and he has personal knowledge of the illegal item.

Now, in the same case of Hon Ne Chan, the application started with this phrase, “that the Special Investigator of the NBI has information and verily believes that respondent is in possession or is in control of the properties sought to be seized..” That’s the phrase used as information and verily beliefs. The second paragraph, however, mentioned that the same NBI Agent that personally verified the report and found it to be a fact. Now, petitioner contended that such a first statement, he has information and verily belief is insufficient to constitute personal knowledge and therefore hearsay, could not be the basis for determining probable cause. Supreme Court says while that statement may be so, this was also corrected by the second paragraph.

This only points to show therefore, that while information may not be the basis of personal knowledge of facts which may be used by the court in appreciating the presence or absence of probable cause.

If the information, however, is verified by the applicant and of his witnesses and has witnessed or observed or has personally seen it as a fact, then such information is no longer hearsay.

Now, the judge is not duty-bound to exact from the applicant and his witnesses, so much so as to prove beyond reasonable doubt that a crime has been committed and respondent is most likely guilty, only that the judge is convinced that there is a necessity to seize the items and therefore a warrant must have to be issued.

PARTICULARITY IN DESCRIBING THE THINGS TO BE SEIZED

The other question in this Hon Ne Chan case was on the requirement of particularly describing the place to be searched and the things to be seized.

How particular should the description be with respect to the things to be seized? It depends largely on what kind the warrant has been issued for because from the reading or rundown of cases which I presume you have read (ack!!Have we? patay..he he.☺), this would necessarily be different if say the warrant was issued for illegal possession of firearms or for say illegal possession of drugs. This is so because of the difficulty in ascertaining the specific description of the drugs as well as the firearms with respect to model, brand, serial number, make, volume or patent.

So for so long as it is descriptive enough to prevent the unrivaled authority of the executive officers to determine which items or object should be seized, that it necessarily therefore limits the exercise of discretion on the part of these officers, that would be sufficient description.

In this case of HON NE CHAN, the Supreme Court said that particular description of the things to be seized is primarily meant to enable the law officers serving the warrant to:

1. readily identify the properties to be seized and thus preventing them from seizing the wrong item;

2. leave said officers with no discretion regarding the articles to be seized and thus prevent unreasonable searches and seizures.

It is not, however, required that the things to be seized must be described in precise and minute detail as to leave no room for doubt on the part of the searching authority. So, it largely depends. So for example, drugs normally, the volume or quantity may vary, or for firearms, perhaps the caliber and the number of rifles or firearms would vary in terms of circumstances but in some, if it were to be, in one case, “chop-chop” vehicle or parts, there is no requirement other than that to describe them with more particularity.

However, in those computer cases, Microsoft, Sony Communications, if it were to be infringement or violation of Intellectual Property Rights, there must have to be specification which of these “illegal” objects or items are used for illegal purposes constituting infringement because the possession of legal objects are not violations or unlawful. So for example, if your are in possession of a computer unit or a laptop or a notebook, if these notebooks or laptops or computer units are not alleged to have been used to violate a law or Intellectual Property, not all of these items can be seized. Possession of these items are not otherwise declared unlawful or illegal but there’s another case where for example, program use or operating system use in your macbook is actually a macbook pirated, then that may be seized.

The question then is that, should your macbook be described in sufficient particularity as to its serial number? It is not required because that would be requiring more than what is reasonably required for purposes of particularity in description.

The only thing with respect to items or objects which possession are legal, nonetheless, would be to identify them, to make their description as unlawful. Otherwise, without such description, it could not be seized under a warrant because again, possessions of these objects are not per se unlawful.

QUESTIONING BY THE COURT

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Now, with respect to the questioning of the court, the rules require that there must have to be examination in writing , under oath or affirmation, which require that the transcripts must have to be attached to the records of the case. That would be a procedural requirement. Other than that, the proceedings are delved in utmost secrecy. If you have personally attended a hearing for the application for a search warrant, the public is normally excluded and it is usually in the chambers of the judge, but there will still be a stenographer, and everybody else who normally would participate in the case.

PARTICULAR DESCRIPTION OF THE PLACE

Now, with respect to particular description of the place: How particular should the place be. The problem with that is, it should be understood that the description of the place is known both to the applicant and the judge. The theory being that the search warrant is the document authorizing intrusion into one’s privacy. So, in an application for a search warrant, it is not for the witnesses to convince themselves of the necessity or propriety. It is for the applicant and for the witnesses to convince the judge on the propriety of the issuance so that when it comes to the description of the place, the submission is that, the judge as well as the applicant must know what that place to be searched is.

In fact, the rules require the sketch of the place to be searched must have to be attached and likewise indicated in the application. The problem, most likely, that one can encounter in the particular description of the place, in actual application is that the streets in the Philippines are not mostly named and even of they are named, the houses or establishments are not normally numbered, consequently at that. So, a house in McArthur Highway, you can just imagine.

If the place intended to be searched is in McArthur Highway, Matina, Davao City. McArthur Highway would be from just after the bridge of Governor Generoso, known to us as Bankerohan, up to that bridge in Balusong, at the LTFRB. No, Matina is still up to that curve in Tahimik Avenue. See how long the stretch is? Are the houses numbered? Much more chronologically? So that would be the difficulty.

In actual practice, the application must have to be sketched attached to the application and there has to be a description as to where it is..it is that small house beside Jollibee and Centerpoint in Matina. There is a drawing or sketch to determine it. That is known to the applicant. If that is the same address or place known or made known to the judge and the judge believed it to be, that should sufficiently be considered as compliance with the requirement.

The problem is what is there is a mistake in the description? Mistake in the sense that, while the warrant indicates one place, it was actually served in another place which was the actual intended place.

There are 2 schools of thought: (1) If you look at into the TRADITIONAL ASPECT,

meaning the warrant being the document authorizing intrusion into one’s privacy, a search on a different address other than that included in the warrant is an

UNLAWFUL SEARCH. No questions or discussions allowed.

(2) But if the second school of thought if the mistake in the address as indicated in the warrant is CLEARLY TYPOGRAPHICAL, a manual error, then the search on the correct address, though different from the stated address in the warrant is considered VALID.

Again, it assumes that that is the address known to both the applicant and as well as the judge, even if there was an address wrongfully indicated in the warrant. It think that’s the decision of the case of UY V BIR.

The problem in this case is the name of the streets is common to all places. For example, Rizal Street. While it was to be served, say, in Mandaue City, the address indicated is Cebu City. And there is no such street in one.

For example the application was made in Cebu City, Rizal Street. But in the warrant, what was indicated was Rizal Street, Mandaue City. So it was actually served in Rizal Street, Cebu City which is the place intended, though not the address indicated in the warrant.

Now, is the service valid? The SC said YES because it was the place intended. It was clearly typographical to indicate the Mandaue Address because there is no street of that nature in Mandaue. The establishment that was sought to be searched is not even located in Mandaue.

Again, that is based on the assumption that the place intended to be searched is the same place known to both the applicant and the judge issuing the warrant. It would be different if, say, the intended place to be search was the place intended in the warrant but they actually served it in a different place. So, clearly typographical or mechanical error may be an excuse for serving the warrant in a place other than that indicated therein.

One specific offense – this simply requires that the warrant is issued to one specific offense purposely for the judge to determine the issuance of the probable cause. It is not actually for the searching and seizing officer to know. It is for the judge, because the question asked is how can the judge determine the existence of the probable cause if the warrant is served or issued or applied for several offenses.

This is what we refer to as a scatter-shot warrant or a general warrant. If the warrant is to be issued, it is only in connection for one specific offense because that is the determination of a judge in determining the existence of probable cause.

The specification of one specific offense, however, does not require that the violation being referred to by Statute number or provision. It depends. A recitation, even without reference to actual number or the article or section of the law, may be sufficient. So “violation of the illegal possession of firearms as amended,” or the description is “violation of the Revilla law.” That’s the illegal possession of firearms as amended. This would be sufficient.

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And even if there’s no specific reference to a particular section, a recitation may be valid, like “a possession of illegal or prohibited drugs” or “firearms without the necessary permit or license,” that presentation will be sufficient for a conclusion for that crime of Illegal Possession of Firearms or Illegal Drugs have been committed. So while ideally, the reference shall be made to the particular section of a particular law as numbered, that is not required in every and all circumstances.

So that is how a warrant is supposed to be considered as valid. Now, what are the objects of the search? In Section 3 of Rule 126:

RULE 126, Sec. 3. Personal property to be seized. – A search warrant may be issued for the search and seizure of personal property: (a) Subject of the offense; (b) Stolen or embezzled and other proceeds, or fruits of the offense; or (c) Used or intended to be used as the means of committing an offense.

Now the warrant therefore is only good for personal properties. You cannot distraint real properties. And these are normally in relation to a crime having been committed or crime to be committed. Other than that, no other personal property can be seized.

So for example: You may have come across instances where a vehicle is involved in an accident. Normally, the police authorities would “impound” the vehicle. For what purpose? Is that vehicle used for the commission of the offense? Or is it the product, or object, or fruits of the offense? Or was it used or intended to be used?

But the problem is police officers would always impound the vehicle. No problem with violations of special laws like Forestry Laws, Customs Laws, because there are specific provisions in the Customs and Tariff Code. Even the animals used to carry or pull these dutiable items can be seized. That’s a specific provision.

But ordinarily – Reckless Imprudence Resulting to Damage to Property or Physical Injury or Homicide. They would always impound the vehicle. Is that vehicle subject of the offense which can be seized? We will have to know the answer later.

Now, the search warrant is good for 10 days. There is an efficacy of 10 days unlike in warrants of arrest where it is not effective only for 10 days. And unlike in warrants of arrest, search warrants should be implemented only during day time. The time for execution or implementation, under the rules, is day time search.

Night time searches are allowed provided two things are complied:

(1) There must be a special application on why a night time search should be conducted;

(2) The court must have an issued and authorized in the warrant itself that a night time search is permissible.

One of the most common questions asked is: If the warrant is served today on the first day, can the searching officer take a recess, say, at 8pm tonight and come back tomorrow to continue the search?

It would seem to me that the rules do not cover that. But the assumption is that, because it’s an intrusion into one’s privacy, once a warrant is implemented or commenced to be served, it should be finished or terminated without any break. Because, the intention again is to not to disrupt the right to privacy more that what is necessary.

Of course, if it were to be a very huge warehouse, it may take longer. But then again, the search should be continuous, logically. They cannot, like, take a break at 10 pm and then go home and come back the next day. They should continue to conduct the search as it is a violation or intrusion into one’s privacy. So while the warrant allows them that conclusion, they should not intrude more than what is necessary.

The other question asked is: What if it was served on the 10th

day but it was not terminated or completed on that same day and it has to go beyond? Is that allowable? Is the warrant still be valid?

I would submit it would still be provided there is no reasonable break in the service or implementation of the warrant. Of course it would be dependent on circumstances.

Like, they had all the chance to serve on the 1st to the 9th day. Why serve it on the 10th? But if there is justifiable reason why they were able to serve only on the 10th, the fact that continuously it should be and there is no break and they went beyond the 10 th day, the search would still be valid under the said warrant because the intrusion commenced when the warrant was still valid.

Now, with respect to the service of the warrants, the Rules require that under Section 8, Rule 126:

RULE 126, Sec. 8. Search of house, room, or premises to be made in presence of two witnesses. – No search of a house, room, or any other premises shall be made except in the presence of the lawful occupant thereof or any member of his family or in the absence of the latter, two witnesses of sufficient age and discretion residing in the same locality.

The understanding of police officers is that mostly, barangay officials are witnesses. Well that is acceptable, but that is not necessary. Any resident in the locality of sufficient age and discretion can be the two witnesses.

Now the two witnesses are only required when there is no lawful occupant or any member of his family who can be witnesses to the said search.

And in several cases, the search in one room requires the presence of witnesses. The search in another room, even if the witnesses are in the same premises but not in the same room, may not be valid altogether because searches in this separate rooms must have to be witnessed by any those persons.

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Unless it’s an open facility where anybody or everybody can see because can be around. But if the rooms in that house are separated by walls and doors, the search in one place or room in the house must have to be witnessed by any of those persons.

Other provisions in Rule 126 - Motion to Quash:

RULE 126, Sec. 14. Motion to quash a search warrant or to suppress evidence; where to file. – A motion to quash a search warrant and/or to suppress evidence obtained thereby may be filed in and acted upon only by the court where the action has been instituted. If no criminal action has been instituted, the motion may be filed in and resolved by the court that issued search warrant. However, if such court failed to resolve the motion and a criminal case is subsequently filed in another court, the motion shall be resolved by the latter court

So this is a provision where, if there is a case already filed, you must have to file a Motion to Quash a Warrant in the criminal court where the case is pending.

If there is no case yet filed, you must file the motion with the issuing court.

The reason for this is to prevent forum shopping, so to speak, in order to facilitate the resolution of the issues. Anyway, if it were to be, the court hearing the criminal case would suppress the evidence or quash the warrant, then the criminal case may be dismissed.

You may have heard of this word – LIMINE. This is used in American cases, it also means Motion to Suppress Evidence.

A limine motion is filed as a pre-trial incident to question the admissibility of evidence. The purpose of that is to determine beforehand – should we proceed to trial or should we end it here right now.

The problem with Philippine Jurisprudence is that, the admissibility of the documentary or object evidence is normally objected while it is offered in evidence.

When are objects as evidence offered? After all testimonial evidence have been presented and received. In testimonial evidence you make the offer before the testimony is made. The problem of object evidence is that they are to be offered after everything has been done. So it comes normally at the end of the presentation of the evidence in chief of the prosecution. That is when you object. Well, the rules now allow suppression of evidence. This was taken from this procedure in the American law where they can file a motion to limine where you ask the court to determine here and now whether or not these objects can be admissible in evidence against the accused.

If it is, then you proceed with the trial. If it cannot be, then dismiss the case because if these are the only evidence which can prove the corpus delicti of the offense, there is no use continuing with the trial. So that’s how it’s done. But in the rules now, you can only do that in the court where the criminal case is pending or if there’s no criminal case yet, in the issuing court.

VALID WARRANTLESS SEARCHES AND SEIZURES

One party was able to beat the deadline of the Comelec rule in the party list election participation. In today’s news you may have read that the Alyansa ng mga Sabungero was able to file a certificate of registration to participate in the 2010 party list system election. Apparently it caters to the marginalized sector particularly the kristos, handlers and all those in the cock fighting industry excluding the financiers because they said they come from literally the “isang kahig isang tuka” sector. Former Justice Melo was flabbergasted upon knowing that there is such a party. But come to think of it if they could not be denied registration they would fall under the letter “A” category Alyansa ng mga Sabungero. They have a good chance of getting the 2% which is the guaranteed seat requirement. And also I think the first nominee is Manny Pacquiao.

Now let’s go to the exceptions of warranted searches and seizures. Originally we have been given 7 instances of valid warrantless search and seizures they range from

1. search which are consented;2. things are seized within the plain view of a searching

party;3. search incident to a lawful arrest;4. search of vessels and aircrafts for violation of custom

laws;5. search of moving vehicles;6. stop and frisk situations; and7. those cases involving exigencies.

In one case, People vs. Agulay, a 2008 ruling the Court mentioned of the eighth incident which is search of automobiles at borders or constructive borders. In our jurisdiction it seems that there is no jurisprudence yet on search on automobiles at borders and constructive borders however we take the principle to include search conducted in the airport as part of security. Cases of People vs. Johnson and People vs. Canton.

SEARCH OF MOVING VEHICLES

Now search of moving vehicle there’s nothing much with respect to search of moving vehicles except that in relation to search in check points the ruling in the De Villa cases (Valmonte vs. De Villa, 170 SCRA 256 and Valmonte vs. De Villa, 185 SCRA 665) would still be applicable. For check points must have to be

1. the location of the check point must be fixed; 2. the location shall be determined and fixed by responsible

officers; and3. the checkpoint must be manned by responsible officer

who takes responsibility over their respective personnel.

Importantly in the conduct of the actual search the vehicle must have to be detained momentarily there is no allowance for extensive search generally. The search is limited to visual search. The only exception that there shall be extensive search is when there is probable cause as determined by the manning officer that there is necessity of conducting more extensive search. Now this is where the problem lies because in questions involving searches and seizures without warrant is always a question of fact. The problem with this situation is that determination of probable cause shall be made by the officer so it is in a case to case basis. But generally just like any probable cause it should be defined and characterized as such facts and

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circumstances which would lead these men, the personnel manning the check point, to conclude that the crime has been committed and that in all probability that the object sought to be seized is inside the vehicle which is subject of the search . So it has to be dependent upon the availing attendant circumstances.

Now assuming that there is a checkpoint the problem asked is can the police officer simply flag down a vehicle? The case of People vs. Tuason the allowance of search of moving vehicle is based on one, there is no reasonable certainty for the application of search warrant because of the difficulty of the particular description of the motor vehicle sought to be searched. Secondly, and more importantly the nature of a moving vehicle can easily be removed from the jurisdiction of the issuing court.

While we all know that the search warrant can be served anywhere the court has jurisdiction to issue the warrant must have to be in the place where the crime was committed. So for example a warrant was issued in Davao City assuming you know the particular description of the motor vehicle if the motor vehicle is taken out of say the 11th or 12th judicial region.

The question then is: can the warrant be served validly? So to avoid that situation because of the nature of vehicle search of moving vehicle is allowable even without a warrant. Nevertheless, it has been emphasized in the case of People vs. Tuason that just because it is a motor vehicle it does not give the authorities an unbridled discretion to just flag down and stop the motor vehicle. Again there must have to be a necessity of determining probable cause that there is a need to flag down the motor vehicle and conduct the search. Again, these are not in check points.

In check points the rules are totally different altogether. Assuming there is no check point the police authorities can flag down vehicles if there is determination of probable cause that there is necessity of flagging down the vehicle and conducting the search. It would be on the same characterization that these police officers are of the opinion in all probability that a crime has been committed and the effects or subjects or products of the crime are inside the motor vehicle sought to be searched that is a minimum requirement. Now the question is: is that valid in all circumstances? Again it is a question of fact. If it is raised the court must determine whether or not there was a valid search.

SEARCH INCIDENT TO A LAWFUL ARREST

Search incident to a lawful arrest is based now on Section 13 of Rule 126 it states …

Section 13. Search incident to lawful arrest. — A person lawfully arrested may be searched for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense without a search warrant.

From the characterization of search incident to a lawful arrest it means that the arrest must precede the search it could not be the other way around so that if the search has preceded the arrest then it could not fall under warrantless search in this situation.

This search is limited in two ways one limited to time and second limited to space. When we say limited in time jurisprudence would tell us that the actual search must have to be reasonably connected to in terms of time to the time of the arrest meaning there must be no appreciable gap from the time the arrest was made to the time the search is conducted . Otherwise the allowance for a warrantless search is lost.

The basic allowance of warrantless search is anchored on the fact that there is no opportunity to secure warrant so if there is appreciable gap from the time of the arrest and the search then the question is: why was the warrant not secured? So there must have to be a limitation of time.

Limitation in space is brought about by the condition that the rule itself requires that the search is limited to dangerous weapons or anything which may have been used or constitute proof in the commission of an offense. So that if it has to be allowed as a manner of incidental search it has to be limited to the immediate vicinity where he has effective control where dangerous weapons have been concealed or the things used or constitute as proof of the commission of the offense has been discarded. So anything outside of the reasonable vicinity would not be part of admissible evidence and it presupposes a valid arrest to begin with.

Now in your outline you have 2008 cases the cases of People vs. Bohol, People vs. Dumangay, People vs. Agulay and Ching vs. People. All these are in what we call entrapment operation-- buy bust. The usual contention of the accused would be that it is not a valid search because there is no warrant. Consistently the Supreme Court said that if it is a valid entrapment and we all know what a valid entrapment is that criminal motivation must have to come from the accused and not coming from the authorities. So it’s a valid form of entrapment the arrest is valid because a crime is being committed or is actually committed in the presence of the arresting officers and therefore the incidental search necessarily falls under Section 13 Rule 126. Again, while it may be a search made incident to a valid arrest there must have to be limitations in time and space for it to be considered valid. The ruling in these cases tell us therefore that even if the arrest is made without warrant it may be valid but the thing is it must fall in any of those allowable circumstances. Similarly warrantless arrests are generally in six instances just like warrantless searches and seizures.

SEARCH WHICH ARE IN PLAIN VIEW

Search which are in plain view or so-called plain view doctrine. Now in the plain view doctrine the following are considered the conditions or requirements:

1. there must have to be a prior justification of the intrusion; 2. in the course of the activity the police should come

inadvertently across the piece of incriminating evidence;3. the evidence must be open to the eye and the hand of

the police officers;4. the most important is that the evidence of illegality is

readily apparent.

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Now in the case of People vs. Musa, which is one of the earlier leading case of the matter the Supreme Court had the occasion to discuss what justifies prior intrusion. Prior intrusion simply requires that police officers must have the right to be there to eventually view and see the evidence which is required thereafter to be immediately apparent as its illegality but they have a right to be there.

It could be in warranted cases or it could be in warrantless cases like in this case of People vs. Nuevas. In a supposed tip taken the accused were found to be walking with a bag and when the bag was eventually searched there were dried marijuana leaves wrapped in newspaper placed inside the bag. The question then was: were the police officers were justified in stopping them and conducting the inquiry and search thereafter? So that is a question of fact. It is important because if the intrusion is not justified to begin with whatever comes thereafter could never be considered as valid.

Assuming that the intrusion is justified then we have to see if the rest of the conditions are satisfied. And the last of the conditions which is that the evidence of illegality is readily apparent must have to be considered. In the case of People vs. Musa as you very well remember the marijuana leaves were placed inside the plastic bag so that the plastic bag was not transparent so from an ordinary view of it one could not determine what’s inside it one has to look into its contents which would negate the fourth condition which is the evidence of illegality must be readily apparent.

The same in this case of People vs. Nuevas where the marijuana could not have been seen just by looking at the bag they have to conduct an extensive search of the bag. All those conditions must have to be satisfied in order for the evidence in plain view could be appreciable against the accused.

So the problem normally for the evidence of illegality is based on the crime or charge for which the accused is eventually subjected to based on the evidence.

No problem literally with guns and drugs because of the presumption against its legality. If a person is in possession of prohibited drugs no amount of permit will justify the possession. You will not be asked, “Do you have a permit for that?” It’s regulated drugs probably which can be legalized if you are duly permitted like medicine or drug. So if you’re in possession of regulated drug you can show proof that you are permitted to possess that drug. So the evidence of illegality may be a question of fact.

But what about in other offenses? If you remember the very old case of Vinta vs. Court of Appeals involving obscene publication can a publication be determined as obscene just by looking at it? Because in that case the factual setting is that the mayor of Manila ordered the police force to conduct the search and seize publication in their opinion as obscene.

Now who determines what is obscene and what is not to constitute possession of obscene or peddling of obscene publications. Again it largely depends on the concept of evidence of illegality would largely depend on the nature of the offense from which the item to be seized.

We don’t have the right to bear arms so that possession of gun is presumed to be unlawful unless you so prove that you have a permit. So when your gun is seen in plain view it can be seized because the evidence of illegality is readily apparent you don’t wear your license across your neck like an ID or something so it’s always presumed to be unlawful. Later during the trial that is a matter of defense but for purposes of seizure the evidence of illegality is admittedly apparent once it is seen in plain view.

What other offenses are normally subject of a warrant and which may also be subjected to a warrantless search? Smuggled goods can you see just by looking at the goods or items that it is smuggled or the duties and taxes were not paid therefore they are illegal? You cannot be certain because what these items are normally valid. The only reason why they are considered unlawful is because of prohibition or definition of law because this is mala prohibitum.

The stop and frisk is based on the old case.

Ok before we leave the Abenes vs. People the conditions by which the "plain view" doctrine applies are the following:

1. the law enforcement officer in search of the evidence has a prior justification for an intrusion or is in a position from which he can view a particular area;

2. the discovery of the evidence in plain view is inadvertent; and

3. it is immediately apparent to the officer that the item he observes may be evidence of a crime, contraband or otherwise subject to seizure.

This case of Abenes the accused here was stopped in a checkpoint by reason of a gun ban Comelec resolution. When the motor vehicle was flagged down the police officer noticed the accused who was then a punong barangay had a gun tucked on his waist so he was asked to step down a body search was had and the gun was seized from him.

So was it evidence in plain view? The Supreme Court said yes because they had justification to be there because enforcement of the Gun Ban and were properly in a position from which they particularly viewed the area. Second, in the course of such lawful intrusion, the policemen came inadvertently across a piece of evidence incriminating the petitioner where they saw the gun tucked into his waist. The gun was in plain view and discovered inadvertently when the petitioner alighted from the vehicle. Is the evidence of illegality immediately apparent? The Supreme Court said yes because it is a gun by nature its possession generally is considered unlawful.

STOP AND FRISK

Now in this stop and frisk ruling this was based on the 1968 decision Terry vs. Ohio. The factual settings are as follows: Police officer Martin McFadden was patrolling the streets of downtown Cleaveland, Ohio on a fall in 1963 when he spotted two men behaving suspiciously near the jewelry store, these two men are by the way afro-America in 1963 they are called black now they are called afro-American.

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Suspecting the two men of "casing a job, a stick-up", the police officer stopped John Terry and Richard Chilton and proceeded to frisk them in a pat down search. He removed two guns from their overcoats. Terry and Chilton were convicted of carrying concealed weapons.

Terry appealed his conviction charging that it violated his right against unreasonable searches and seizures under the fourth amendment. Supreme Court ruled against it in 1968 holding that a police officer was entitled by the Constitution to stop and frisk individuals for weapons when he has an articulable suspicion of criminal activity and have reasonable fear for his own and others safety.

The state initially tried to argue that there is justification for the search as there was no violation of the fourth amendment because to stop a person and to do a pat down search does not constitute an arrest. The Supreme Court said, however, seizures of persons which do not eventuate in a trip to the station house and the prosecution for crime is included because it is arrest no matter how you take it.

As you remember Republic Act 7438 you know what that law is? It involves your rights against custodial interrogation. That the practice of inviting a person to stations is also included in the concept of arrests. In 1968 the US Supreme Court has already ruled that is so noting that whenever a police officer accosts an individual and restrains his freedom to walk away, he has 'seized' that person and “it is nothing less than sheer torture of the English language to suggest that a careful exploration of the outer surfaces of a person’s clothing all over his or her body in an attempt to find weapons is not a ‘search.”

But is that allowable despite the fourth amendment? The Supreme Court said one general interest is of course that of effective crime prevention and detection it is this interest that underlies the recognition that a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest.

At the time he seized petitioner and searched him for weapons officer McFadden had reasonable grounds to believe that petitioner was armed and dangerous, and it was necessary for the protection of himself and others to take swift measures to discover the true facts and neutralize the threat of harm if it materialized. The policeman carefully restricted his search to what was appropriate to the discovery of the particular items which he sought. Each case of this sort will, of course, have to be decided on its own facts.

Where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a

search is a reasonable search under the Fourth Amendment, and any weapons seized may properly be introduced in evidence against the person from whom they were taken.

So stop and frisk is dependent on several conditions:

One, the circumstances in which the stop and frisk was made. So in an appropriate manner, how appropriate is it? In 1968, a police officer with 30 years experience behind him is already aware that a stick-up job is usually done after. He saw this two accused going around this particular store and they met a third person talked for a while and suddenly this third person left hurriedly and then these two persons still continued. Knowing it to be the usual MO or modus operandi of robbers he conducted to what is now known as the stop and frisk. So appropriate manner and appropriate circumstance that is the first limitation.

You compare this with the Philippine settings in the case of People vs. Mengote. Mengote standing in the corner of two busy streets in broad day light about lunch time looking from left to right touching or holding his belly reported by the owner of a drugstore of his presence police officer jumped upon him after a brief chase found his possession was a hand gun. Supreme Court said evidence is inadmissible because there is nothing wrong in standing in the corner of two busy streets in broad day light looking from left to right and perhaps perspiring touching his belly. Mengote was decided in 1992 but in 1968 it could have been different.

Second, while the police officer may be allowed to stop a person as a seizure of that person because his freedom to move is restricted despite the sheer torture of the English language is considered an arrest. So if you stop a person the nature of the inquiry must have to be limited as well this is to determine the identity of the person and the activity which may be the subject of suspicion . So the police officer must announce that he is a police officer that he is making this inquiry to determine quote and quote a possible criminal activity. Objectively therefore it is required that the police officer is not of the impression that a crime is being committed but there is possible criminal activity.

Third, the search must be limited to pat down search in the language of the court of the outer clothing for concealed weapons. Why is that? So that while in the process of determining criminal activity he has to protect himself or that of the others.

So then again if these three conditions are met then stop and frisk is valid. That is why in some instances there seems to be a question on whther a stop and frisk is valid for purposes of admissibility of dried marijuana or sachet of shabu found in the pocket because it’s not a pat down search or seizure of this item is not a product of a pat down search.

Can you search a person in his “outer clothing” and find a sachet of shabu containing.001 gram? Or stick of dried marijuana leaves? No problem with concealed weapons because just by pat down search it can be felt from the outer clothing. So that if you have shabu put it inside your inner clothing in your briefs or bra because that should not be subjected to a stop and frisk. Not even evidence in plain view because whatever could be seen with or without a bra is not illegal. (huh? *naga joke si sir*)

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I was wondering I have this book given to me the title is “May It Please the Court” it’s a compilation of US Supreme Court rulings on constitutional issues. There is a CD with the actual recordings of the arguments of the US Supreme Court in constitutional issues some of which are familiar to you Terry vs. Ohio, Texas vs. Johnson and Roe vs. Uy. Those are familiar to you? Right? (class laughs) Ok,

Texas vs. Johnson is flag burning case and Roe vs. Uy is abortion. Earlier when I was in law school I thought Roe V. Uy is a name akala ko middle initial ang V because the US Supreme Court will not right versus as vs it’s only v so you thought ahh the name is Terry and the family name is Ohio.

EXPRESS WAIVER

Ok the next is express waiver. In express waiver there’s not much except that in two cases at least one in the case of Veroy vs. Layague we were made to understand that if there is a search by reason of the waiver the search must have to be conducted pursuant to the consent or waiver extended. If you remember that case was had in Skyline Subdivision where the permission was sought to search the house for presence of rebel soldiers. So the consent was had OK you may search the house to look for presence of rebel soldiers.

They were eventually charged with possession of documents in furtherance of rebellion assisting these rebel soldiers and these documents were found in places inside the house where no person could reasonably hide. So the question is: are those documents admissible? The Supreme Court said no because they were seized in violation of the terms of the consent or waiver granted to them. If they were found say scattered in the room no problem but they were found in cabinets and drawers where no person can hide. So why would you look for presence of rebels inside those small spaces. So they were not admissible because there was no warrant and while there was consent or waiver the actual search and eventual seizure was not within the terms or limitations of the consent or waiver granted.

The second thing mentioned there is the validity of the waiver and this was reiterated in the case of People vs. Nuevas. The Supreme Court said that constitutional immunity is a personal right and therefore can be waived. However, it must be that the consent to the search must have to be voluntary, it must be unequivocal, it must be specific and intelligently given and finally uncontaminated by any duress or coercion. Rightfully so as we always say that in the dead of the night at one o’clock in the morning while you were sleeping you heard a knock on your door and when you opened it a battalion of marines all dressed up to the times to go to war asking your permission in a low tone: “Can I search your house?” What will you do? Will you say, “No I have a constitutional right under Sec 2 of Article III? I don’t think so.

The question whether a consented search was in fact voluntary is a question of fact to be determined from the totality of all circumstances. Relevant to this determination is the characteristic of the person giving consent and the environment in which consent was given.

1. The age of the person giving consent

2. Whether he was in public or secluded location 3. Whether he objected to the search or passively looked on

which is usually the case4. The presence of coercive police procedures 5. The educational intelligence of the person giving consent 6. The defendant believes that no incriminating evidence

could be found 7. The nature of the police questioning 8. The environment in which the questioning took place 9. The possible vulnerable subjective state of the person

consenting

Those are the characteristics which have to be determined whether the consent was voluntary and therefore valid.

SEARCH OF WAREHOUSE IN VIOLATION OF CUSTOMS AND TARIFF CODE

Now search of warehouse in violation of the Customs and Tariffs Code there is no requirement of a warrant as we all know this is based on Sections 2208, 2210 in relation to 2530 of the Customs and Tariffs Code.

In the case of Rieta vs. People where these were discussed it was stated that under the Customs and Tariffs Code the search, seizure and arrest may be made without a warrant for purposes of enforcing customs and tariffs laws. Without mention to the need of obtaining a prior judicial warrant the Code specifically allows police authorities to enter pass any land, enclosure, warehouse, store or any building that is not a dwelling house and also to inspect, search or examine any vessel or aircraft any box or package or any person on board or to stop, inspect or examine any vehicle or person suspecting of holding or conveying any dutiable items.

So these are allowed under the Customs and Tariffs Code. These are based on police authority granted to them by law. But simply remember however that there is a specific exception to the listing which is a dwelling place. So if it is a dwelling place warrant must be secured first unless it is covered under any of those circumstances were warrant is not required except under this exception. So you cannot go to a dwelling place saying that I am conducting a search based on the Customs and tariffs Code. But for example it is based on search pursuant to the plain view doctrine assuming then you can conduct the search. So the thing that you are taught here is that if you have a contra band you have to hide it inside your dwelling place.

EXIGENCY

Exigency is a given exception but please take notice that it is used sparingly only when there is no reasonable opportunity to secure a warrant.

And there is only one case so far People vs. de Gracia this was at the height of the1989 coup courts were not functioning there was general chaos one is not expected for weekend to be over before an application can be made. Again it is based on the emergency

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nature of the situation. Other than that when the courts are open I think the rule on exigency is not applicable. By analogy it must have t be under similar circumstances where the courts in the area are not really functioning otherwise it should not apply.

AIRPORT SECURITY

As we made mention earlier border and constructive border searches the only reasonable reference we have in the Philippines is airport security because I would like to think so because like in Europe where there are borders are close because of the proximity of different states but in the Philippines which is archipelagic there is no reasonable expectation that there should be border control not only because of the nature of our state but also we do not have the capacity.

So this is the nearest we have in terms of border or constructive border searches of course there’s no need for a warrant in that situation because again there is no reasonable opportunity to secure a warrant.

SEARCH AND SEIZURE BY PRIVATE PERSONS

Now what about this search and seizure by private persons this must have to be understood in the light of:

One there is no application of Section 2 with respect to private individual however in relation to an eventual prosecution assuming that the person from whom the illegal item was seized by the private individual is eventually prosecuted for such illegal item, can that person seek the inadmissibility under Section 2?

Generally it would be if it is violative of the proscription against ___. That’s why in search and seizure by private persons the Supreme Court had somehow made some guidelines as to its validity and the most noticeable condition is that the state or its agents has no participation whatsoever except as to its actual seizure. It requires:

1. First, the search and seizure must have to be reasonable on the part of the private individual meaning there’s no violation of even private rights. You may relate this to prior intrusion meaning the private person had the right to conduct the search. Otherwise, if the private person had no right to conduct the search to begin with then it would never be justified in any case. Usually in the cases in your outline involves forwarding services an item was sent to the normal forwarding services which forwarding services have to inspect the items which are being shipped out of the country so they have reasonable right to conduct the search to begin with.

2. Second, there must be no trespass or intrusion on the part of the state agents meaning the actual discovery was had because of the valid prior intrusion by the private individual as may be had under certain circumstances he was not there for acting in conspiracy with nor was he instigated by members of the police force.

3. Finally, the intervention of the state or its agents is only on the actual seizure, nothing more. Otherwise, it would be a convenient excuse or scheme on the part of the state to short cut the methodology by just conducting the search through a private individual.

REMEDIES IN CASES OF VIOLATION

Ok remedies in cases of violation:

1. The first would be under your exclusionary rule. Evidences which are excluded by reason of violation of a right are therefore inadmissible.

As made mentioned last meeting there are several options if there’s a warrant you can quash the warrant and the warrant must be quashed by the issuing court if there is no case filed yet or if there’s a criminal case filed by reason of the search and seizure you must have to file it in the court where the criminal case is pending.

You may also file a motion to suppress evidence which in American law it’s a pre-trial process where the question is simply to determine whether the evidence is admissible or not.

If it is the trial will proceed if it’s not then the case should be dismissed provided there is no other evidence this assumes that the obtained evidence is the corpus delicti of the offense.

The third is the normal procedure followed in our Rules on Evidence is to ask for its inadmissibility by objecting to its admission and based on our rules objects as evidence are normally offered after the testimonial evidence are completed and the defendant or accused is given enough time to file its comments or objection to the offer.

Question: can these options be availed of at the same time? Or does one exclude the other? Meaning if you file a motion to suppress at the beginning and it was denied can you ask for its exclusion by objecting once these objects as evidence are formally offered? The answer is yes because the testimonies of the witnesses may bring some clarity in the mean time which were not there when you filed an initial pre trial motion the judge may not have a clear picture of how these evidences were obtained but once the trial is had assuming your motion to suppress has been denied you can eventually upon its offer you can actually ask for its inadmissibility by objecting to its admission.

2. The second option you have would be under Article 32 of the Civil Code on actions for damages.

3. The third option would be under Articles 128, 129 and 130 of the Revised Penal Code on violation of domicile, search warrants maliciously obtained and abused in the service of those legally obtained and searching domicile without witness respectively.

So those are your options.

The last question asked in searches would be this: if the evidence be excluded should the case be dismissed and the accused be

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acquitted? It would depend on whether the evidence constitute the corpus delicti of the offense or constitute part of the corpus delicti of the offense because of the evidence sought to be excluded and is therefore excluded is not material to prove the corpus delicti of the offense the offense could still be proven if there is still sufficient evidence to prove the guilt of the accused.

Good example would be receipt of objects taken during the search. By rule it is required that the searching and seizing party must have to issue a receipt to be left with the person from whom it was taken or at the place where it was taken when nobody wants to receive it. In some cases these receipts or documents were signed by the person against whom these items were taken. In those cases the act of signing these receipts were considered invalid for lack of counsel because these are incriminatory so these documents are therefore excluded as evidence if seasonably objected.

So without the receipt of evidence can you still prove the crime even without that? The answer is yes because what is excluded is the receipt not the evidence itself. So if the evidence is inadmissible the accused can still be convicted if there is sufficient proof beyond reasonable doubt .

Let us continue tomorrow.

WARRANT OF ARREST

As distinguished from one of the cases, there seems to be not much difficulty in the issuance of a warrant of arrest except for the procedure of judge may take thereafter, after receiving the information as filed by the prosecutor giving the records taken during the preliminary investigation or preliminary examination, as the case may be.

After Rule 112 Sec 6 (a), upon the receipt of the RTC, the judge may take either of the options:

1. If the judge don’t find probable cause to continue with the case, the judge may dismiss the case outright;

2. If the judge finds probable cause, however, to continue with the case based on the records of the case as forwarded to him, the judge should conduct a preliminary examination for the issuance of a warrant of arrest

RULE 112, Sec. 6. When warrant of arrest may issue. – (a) By the Regional Trial Court. – Within ten (10) days from the filing of the complaint or information, the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause. If he finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused has already been arrested pursuant to a warrant issued by the judge who conducted the preliminary investigation or when the complaint or information was filed pursuant to section 7 of this Rule. In case of doubt on the existence of probable cause, the judge may order the prosecutor to present additional evidence within five (5) days from notice and the issue must be resolved by the court within thirty (30) days from the filing of the complaint of information.chan robles virtual law library

(b) By the Municipal Trial Court. – When required pursuant to the second paragraph of section of this Rule, the preliminary investigation of cases falling under the original jurisdiction of the Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court, or Municipal Circuit Trial Court may be conducted by either the judge or the prosecutor. When conducted by the prosecutor, the procedure for the issuance of a warrant of arrest by the judge shall be governed by paragraph (a) of this section. When the investigation is conducted by the judge himself, he shall follow the procedure provided in section 3 of this Rule. If his findings and recommendations are affirmed by the provincial or city prosecutor, or by the Ombudsman or his deputy, and the corresponding information is filed, he shall issue a warrant of arrest. However, without waiting for the conclusion of the investigation, the judge may issue a warrant of arrest if he finds after an examination in writing and under oath of the complainant and his witnesses in the form of searching questions and answers, that a probable cause exists and that there is a necessity of placing the respondent under immediate custody in order not to frustrate the ends of justice.

(c) When warrant of arrest not necessary. – A warrant of arrest shall not issue if the accused is already under detention pursuant to a warrant issued by the municipal trial court in accordance with paragraph (b) of this section, or if the complaint or information was filed pursuant to section 7 of this Rule or is for an offense penalized by fine only. The court shall them proceed in the exercise of its original jurisdiction.

There seems to be some discussion with respect to the task of the judge in this situation vis-à-vis the task of the prosecutor in determine probable cause because the same term, probable cause, is used and it is the same term used in the Constitutional provision.

In the case of ROBERTS vs. CA, in the line older case of PRESTO vs. LOPUZ (?), the SC clarified that in the issuance of a warrant of arrest after the receipt of the records from the prosecutor, what the judge technically should do is preliminary examination wherein the determination is whether or not there are facts or circumstances which a reasonable man would conclude that a person has committed the offense and therefore be held under custody. Meaning it is by the definition of the word arrest.

Unlike in the determination of probable cause for indictment or to file the information to the court, this is to determine whether or not there are reasonable facts or circumstance to engender a probability that a crime has been committed and that the respondent is probably guilty and therefore be held for trial. It has nothing to do with placing him under detention or custody.

So in one hand, the prosecution’s task – the determination to file a case --- is an executive function which is to be done by the investigation officer, whether prosecutor or special prosecutor.

The task of the judge based on probable determination as to the issuance of warrant of arrest is judicial and is considered preliminary examination.

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But because of the rules now, it would seem that since the judge can do either of these things ---

(1) to dismiss the case, (2) whether there is probable cause to continue and

therefore issue the warrant based on preliminary examination, or

(3) the third option is the judge is not convinced that there is probable cause and then require the prosecutor within 5 days to submit additional evidence for purposes of proving to himself whether or not there is probable cause.

Now the problem there is: What is that determination of probable cause under Section 6 of Rule 112? Is it probable cause to continue with the indictment or probable cause to issue the warrant of arrest? Because, to be technical about it, it should have been to determine whether or not a warrant of arrest should be issued because that’s how the Constitution worded it --- that personal determination of the judge is required to be done by him personally in the sense that it could not be delegated to any other. In fact, in one case in your outline, in the case of TALINGDAN vs EDUARTE, this involves an administrative case against the judge who issued a warrant of arrest for libel against a lawyer --- the petitioner is a lawyer. The warrant for arrest for libel was issued by the judge through a prior approval, so to speak, of the clerk of court in the sense that the judge admitted that when he signed the warrant of arrest after believing that everything is in order based on the prior recommendation of the clerk of court. The SC reiterated the rule that the personal determination is literally required. Because unlike in search warrants, in the application, the personal determination of the judge by the personal knowledge of the witnesses and/or applicant as to the determination such facts and circumstances. The applicant and the witnesses are personally examined by the judge.

In the case of warrants of arrest, the personal examination of the judge is not on the witnesses but on the documents attached. Now, these documents, the information, the resolution, the affidavits of witness of both complainants as well as the respondents, should be before the judge. Well it is not required that everything must have to be there. The only thing required is that the pertinent and material documents based on the findings of the prosecutor are before the judge to go over them personally.

But anyway, going back to the rule: Is this determination of probable cause by the judge entitles him therefore to do the executive function of determining or not whether there is necessity of proceeding to trial or should it still be limited under the context of the Constitution that it is for the issuance of the warrant of arrest by placing the accused into custody?

Well, to be honest about it, the rules would somehow now grant the judge that determination. In fact, the fact that the judge can actually dismiss outright if he finds no probable cause makes him, to some extent, a reviewing officer of the investigating prosecutor’s findings which, under ordinary circumstances should not have been based on the decisions of the SC on determination of probable cause to issue of warrant of arrest. One should not be confused with the other in respect of understanding.

When the judge is tasked to determine to personally the existence of probable cause based on the case of LIM v FELIX and the case WEBB v DE LEON, the judge is required to go over the records personally.

In the case of WEBB, the counsel for petitioner Webb there raised the argument that the judge could not have issued a warrant of arrest after several hours from receipt of entire records because the records were voluminous already. So it could not have been humanly possible for the judge to have determined probable if he had gone over the records personally. The SC said there is no hard and fast rule. It does not mean that the records would be like 2 inches thick and there’s only 3 hours spent on it, there’s no such thing. For so long as the judge, after perusing personally over the records of the case, is convinced that there is a need to place the accused under custody of the law, then a warrant may be issued. The SC justified the notion based on the characterization of preliminary examination that this is summarily done. The basis of that is an Administrative Order issued by the SC for the matter, characterizing the preliminary examination as necessarily be summary, otherwise the judges will be unduly burdened with the task of reviewing the records as if it were conducting the preliminary investigation. This brings us back to the question raised --- should the judge be allowed to exercise the power to conduct preliminary investigation to determine probable cause, whether or not to continue the indictment and not limited to the issuance of warrant of arrest?

Now, the warrant of arrest is valid until served. There is no life, although the rules require that within 10 days from its issuance it has to be returned. So if it has not been implemented within the 10-day period, there has to be a return to be made by the warrant officer informing the court that the warrant has not yet been served and therefore outstanding.

And unlike in searches where arrest or searches are generally daytime search except on a valid application and by the order of the court, warrant of arrests can be implemented anytime, day or night.

And the other difference would be in warrants of arrest, for so long as a warrant has been issued, it need not be shown at the time of the arrest. In search warrants, that is the document verily required before there could be intrusion. If there is no warrant, even if it has been previously issued, the search cannot be had if the search warrant is not with the searching party.

As to the efficacy or effectivity in terms of area, the warrant of arrest is valid anywhere within the Philippine territory. Unlike in search warrants, we made mention of the requirement of particular description of the place necessarily limits the efficacy of the search warrant in that particular location.

WARRANTLESS ARRESTS

So then the warrant has been issued. There’s not much difficulty in understanding the requirements of a valid warrant. The discussions are mostly on warrantless arrest. Now Sec. 5 of Rule 113 practically gives us the instances or the 3 main instances of a valid warrantless arrest.

Sec. 5 (a) – In flagrante delicto cases

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Sec. 5 (b) – the offense has just been committed and the arresting officer or person has personal knowledge of the facts indicating that the person to be arrested has committed it, and

Sec. 5 (c) – detention prisoners

RULE 113, Sec. 5. Arrest without warrant; when lawful. – A peace officer or a private person may, without a 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 just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and (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 is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.There three other instances:

Under Rule 113 section 13 --- Arrest after escape or rescue of a person lawfully arrested, that person can be re-arrested without a warrant.

RULE 113, Sec. 13. Arrest after escape or rescue. – If a person lawfully arrested escapes or is rescued, any person may immediately pursue or retake him without a warrant at any time and in any place within the Philippines

So if a person is initially arrested without a warrant validly, and he has escaped or rescued, he can be re-arrested without a warrant.

Q: How long? Is there a limitation on time?

Under Section 23, Rule 114 is the next two circumstances: Arrest by a bondsperson of an accused under bond for

purposes of surrendering him because we verily understand that if a person is put on bail by a bondsperson or bonding company, the bondsperson or bonding company becomes the “jailer” of that person.

If an accused intends to depart from the Republic or the country without court permission, he can be rearrested at the so-called border that we have --- the airports or the seaports.

RULE 114, Sec. 23. Arrest of accused out on bail. – For the purpose of surrendering the accused, the bondsmen may arrest him or, upon written authority endorsed on a certified copy of the undertaking, cause him to be arrested by a police officer or any other person of suitable age and discretion.

An accused released on bail may be re-arrested without the necessity of a warrant if he attempts to depart from the Philippines without permission of the court where the case is pending.

Now, in Section 5 (a) and (b), this is where of the most discussions are. It generally requires the understanding of the same concept of personal knowledge.

In Section 5 (a), personal knowledge is characterized or limited to the commission of the offense because the offense has been committed, is being committed, or is about to be committed before the view of the person making the arrest. So personal knowledge is on the FACT OF COMMISSION.

In Section 5 (b), this is where most of the discussion has been because of the concept of personal knowledge. From the wordings of section 5 (b), the personal knowledge is not on the fact of commission but on the IDENTITY of the person to be arrested simply because the offense had already been committed. But it is also limited by that phrase “JUST BEEN.” What is meant by that phrase “just been?”

Several cases, perhaps the latest on the matter is the case of PEOPLE V. SINOC (1997) which extended the number of hours from the commission of the arrest to 12 hours. In the case of PEOPLE V. MANLULU (1994), 19 hours from the time of commission to the time of arrest, SC said it is not a valid arrest because the offense has not just been committed.

Q(Eman): Can a party question the implementation of a warrant?A: Yes, you can question the implementation of a warrant. The motion is normally denominated as Motion to Quash a warrant, or a Motion to Quash coupled with a prayer for its non-implementation for the mean time. That’s the nearest answer you could have. But the question is on what ground or basis is that Motion filed? Because if you remember the case of DULIAO (?), an accused is generally not allowed to ask for any relief in court if he does not submit himself to the jurisdiction of the court. That is the general rule. However, if you ask for a relief other than bail, in that case of Duliao, you can actually file a pre-arrest motion. The pre-arrest motion is just one --- to quash the warrant of arrest and to ask the court that it not be served for the mean time; that your issue is being heard or decided. But the question then again is: What is your basis for asking for the quashal of the warrant? So you argue. For example, that the warrant has not been validly issued because, as in the case of Talingdan, the judge did not personally determine probable cause. That could be a good ground. Or that the records of the case, like in the case of Lim vs. Felix, the entire records of the case, coming from the investigating prosecutor has not been presented and submitted to the court issuing the warrant. So how could the judge determine the existence of the probable cause when the material and substantial portion of the records are not before him. Because again, it is not required that all the records are there. What is required is that the material and pertinent portions of the proceedings before the case reached the judge are before the judge. So normally we talk about information, resolution, affidavits of complaint, affidavits of witnesses, transcripts --- that may be material. Of course all the other portions, if they’re not there, would not in anyway affect the determination of the judge. What is important is that the allegations of the parties would be sufficient for the judge to determine the existence of probable cause.

So, can you quash the warrant? Yes. The problem is what is your ground for quashing the warrant. It’s easy to file, but what is the basis that you will have to bring about. But if you file an application for bail, you cannot ask for any other relief if you have not surrendered yourself.

A notion in the case of DULIAO, precisely you don’t want to be arrested. So while should you submit to yourself to the jurisdiction

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of the court, you’re questioning the very process by which the court should or would acquire jurisdiction over the person. Again do not include bail application because, on the other hand, the SC said, if you apply for bail, you are admitting that you will be placed under custody. If a person is not detained or arrested, why should he apply for bail? So if you apply for bail, you must, before a relief is granted for that matter, submit yourself.

Now going back to Section 5 (b) --- so, Just been committed,12 hours committed is safe. Longer than that, that may become disputable. Again, in the case in PEOPLE V MANLULU, 19 hours is not considered as “just been committed.”

The next problem is “PERSONAL KNOWLEDGE.” The problem here is because it pertains to the IDENTITY OF THE PERSON. And when we talk about personal knowledge in evidence, it means something that the person has personally perceived based on the use of his senses. In most cases, the perception or the facts that would have led a police officer to form as to the identity of the person to be arrested is based on the claims of witnesses or testimonies. They were not there but it happened. So they normally would be basing the identity of the person to be arrested on what the witnesses had told them.

If that is the only basis for the identity of the person to be arrested, consistently the SC has said that that is not personal knowledge because it’s not based on their own perception. However, in some cases, where these information or informations is coupled with real facts, then it may be justifiable.

In the case of PEOPLE V DORIA (1999), an en banc ruling, the grounds of suspicion are reasonable when in the absence of actual belief of the arresting officers, the suspicion of the person to be arrested is probably guilty of committing the offense is based on actual facts. Reasonable suspicion therefore must be founded on probable cause coupled with good faith on the part of these officers making the arrest.

Now what does this actually mean? In most cases where the arrest based on personal knowledge were held to be valid is that, one, the victim is accompanying the arresting officers. In one case, in a robbery case, the accused was treated in the hospital. So at the scene of the crime, the victims reported that this is what happened and made identification or description of the accused and when they traced that the accused or that person is in the hospital, the victims were there and identified the person as the one who robbed them. So based on actual facts.

In the case of PEOPLE V GERENTE, one of the old cases, the claim of the witnesses that the victim was hit with a hollow block and a piece of wood, and when they saw the victim in the hospital, suffering injury consistent what was said, and the witnesses also told the description of the assailants who were earlier drinking with them. The SC said that it is based on personal knowledge because it is coupled with actual facts, verifiable facts which would not have been possible if it were based mainly on claims of witnesses. So claims plus actual facts verifying this information would make up personal knowledge in this particular kind of situation. It is not absolute but there is reasonable certainty on the supposed to be suspicion that this person would have committed the offense and is probably guilty. So that is the only limitation on this Section 5 (b).

Section 5 (c), no problem --- Detention prisoner while serving sentence or while pending trial and he has escaped, he can be arrested without warrant.

Now, the strict enforcement on the rules of arrest with or without warrant somehow has been relaxed or liberalized when it comes to Illegal Possession of Drugs or Illegal Possession of Firearms. The reason for this is the difficulty in making arrests much more prosecution in these kinds of offenses. They are not normally done publicly, in the sense that the transactions are almost as always done in utmost secrecy. So if the SC would strictly enforce the rule, there would be perhaps no arrest or there would be less prosecution when it comes to that. It does not mean however that the rules are relaxed, but somehow, a reading of these cases would tell us that if the case involves and drugs and/or guns, there is “presumption of regularity” which is normally given to the police officers unless there are really complicated (?) cases.

Like in this case of PEOPLE V BOHOL, Buy-bust and Entrapment. If it’s a valid buy-bust, a valid entrapment, even without a warrant, the SC had always decreed that it is a valid warrantless arrest under Section 5 (a).

In this case of PEOPLE V TALUNDAY, this is what happened: Apparently within a period of 3 months, the police officers conducted surveillance on the existence of a marijuana plantation somewhere in the Mountain Province. And then it was confirmed, say, today that in fact and indeed there is a marijuana plantation there. So the following day, after a team was formed, they conducted a “raid.” And when they arrived in the area, they saw the accused harvesting or tending to the marijuana plants. So the accused was arrested. Question is: Is the arrest valid without warrant?

The main contention of the accused is that, they were surveying us for 3 months. Isn’t it not, just like a warrantless searches and seizure, the justification for the warrantless arrest is the lack of reasonable opportunity to secure a warrant. Here, 3 months.

The SC said no. They may have been surveying for 3 months that the existence was actually confirmed a day before. So there is no reasonable opportunity to secure a warrant.

Q: How long is the warrant of arrest would come out in the ordinary course of proceedings? A: Based on Rule 112 on Preliminary Investigation (PI), assuming those on PI, the affidavit complaint including the affidavit of witnesses is filed with the investigating officer. Within 10 days, supposedly, the investigating should send out notification with a copy of the affidavits to the respondent informing him of the case filed against him and requiring him to submit counter-affidavit within a period of 10 days. Assuming that the respondent will submit it within 10 days, so there are 20 days already. And then, if there is a need to conduct clarificatory, the investigating officer would conduct clarificatory hearing and thereafter he is mandated to resolve the case within 30 days. So that would be like 2 months already. So in this case when it was confirmed that the existence of the marijuana plantation on August 2, the raid and arrest on August 3 is justified because there is no reasonable opportunity to secure the warrant. Not only 60 days, because the information, the

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resolution will be filed with the Clerk of Court of the RTC. How many days thereafter? (@.@)

In the Rules on Appeal of the National Prosecution Service, Rule 70 if I’m not mistaken, it should be filed after 15 days. If the information comes out today, it would not be forwarded to the court until after a lapse of 15 days to give the respondent an opportunity to file a motion for reconsideration. Assuming that the motion for reconsideration is not filed, and it was finally filed with the court, the information is raffled off. And the raffling is normally every Thursday. And when it reaches the court assuming on Thursday afternoon, you don’t expect the judge receiving 10-15 cases on that day will have the opportunity to personally determine probable cause for the issuance of warrants in all 15 cases in that day. So they will have to wait before a warrant is issued. Just imagine. That’s how long a warrant of arrest should be issued or could be issued. So that’s the case of PEOPLE V TALUNDAY which involves a drug case.

In the case of PEOPLE V PENA FLORIDA (April 10, 2003), I find this case quite interesting because, while it is a valid warrantless arrest but somehow it borders on some discussion because of the concept of plain view, or reasonable suspicion. They received a tip at 10 in the morning that a person will be “transporting” marijuana from this barangay to that barangay. So immediately they formed a team as always --- standard police line --- and they conducted a “road team patrol” --- the usual terminology. So they chanced upon the accused riding a bicycle, for obvious reason they were able to overtake him. And they saw him bringing a bag, and so they flagged him down and they inspected the bag marijuana in it. Question, is the arrest valid?

Ordinarily you’d think, no it’s not because there’s nothing suspicious about riding a bike and bringing a bag, being overtaken by a motor vehicle. But then the SC somehow quoted this Article II, Section 4 of RA 9425 as amended, the Dangerous Drugs Law, that what is prohibited is not only the sale or administration, but also to deliver, give away to another, distribute, dispatch in transit, or TRANSPORT any prohibited drug. And jurisprudence defines “transport” as to carry or convey from place to the other. In the instant case, the appellant was riding his bike when he was overtaken by the police. He admitted that he was about to convey the bag of marijuana.

So even without seeing… the case did not say that the bag was translucent. It’s kind of crazy for you to transport marijuana in a translucent or transparent bag. But he was committing an offense while arrested because he was TRANSPORTING DRUGS. He’s not selling, administering…. It’s transporting… which somehow was different in another case, this case of VALDEZ V PEOPLE.

The accused was noticed by the police on routing patrol. Alighting from a bus, the accused appeared suspicious to them and they approached the accused. When they approached the accused, apparently, the accused tried to run away. And they placed him arrest and found inside a bag a pair of denim, 18 pieces of eggplant, and dried marijuana leaves wrapped in newspaper and cellophane. And what did the SC said? It’s not a valid arrest because they have no personal knowledge that he was actually committing an offense when he was arrested. So if you are just carrying it, probably it’s different from transporting it.

So then again, you would see that somehow, if it has something to do with illegal drugs or guns, the SC has exercised discretion on whether it falls within the category of valid arrests without warrant. Because if you try to relate this or compare it with common offenses, is the arrest of the accused in a rape case valid? Like she claimed she was raped one week ago. And then, 3 days after she complained to the police that she was raped and pointed to the person that “I was raped and he was the one who raped me.” Is the arrest without a warrant valid? That could never be valid because it’s outside the phrase “just been committed.”

You see, these are ordinary offenses --- robbery, theft, estafa. But in the case of guns and drugs, somehow there is liberality in the application of straight in pursuit (?).

Generally again it must be strictly imposed because it violates our basic rights. But because of the difficulty in arresting this person in this case, then there is somehow discretion on its enforcement.

In the case of PEOPLE V VIOT (?) as well as the case of PEOPLE V SANTOS, these cases involves the questions of (1) when should you question the legality of the arrest? And (2) What is the effect of illegality of the arrest.All questions on legality or illegality of an arrest should be raised before arraignment, otherwise it is waived. You cannot raise it at any other time. As compared to admissibility of object evidence, we have options as we made mention yesterday. But in case of the validity of the arrest, before you enter a plea, you must have to raise the defect. In fact, if you remember that old case ILAGAN V ENRILE, an illegal arrest may even be validated by an issuance of a valid commitment order. The procedure would somehow go like this: If you arrest is with a warrant, the warrant is implemented, the accused is brought to court, the accused may post bail if it is bailable and the commitment order is issued by the court for that person to be committed to the jail. If the arrest is without warrant, the procedure normally is, there is inquest in the prosecutor. The prosecutor initially files the information. The court will not, as a matter of procedure, issue a warrant of arrest because the accused has already been arrested. It will issue then a commitment order to transfer his detention from the arresting officers to the city, municipal, or provincial jail, as the case maybe.

So in that situation, assuming that the arrest is without warrant and is claimed to be invalid, the fact that the court has issued the commitment order, though it may validate the invalid arrest, it will validate the detention subsequently. So a person cannot ask to be released even in a petition for habeas corpus if there is a commitment order validly issued even if the initial arrest and detention are considered invalid. Again, you must have to raise the defect before arraignment, otherwise it is deemed waived.

Q: If the arrest is illegal, what is the effect? Can the accused be released again?A: If there is a commitment order, he cannot be released.

Q: What about the effect of that illegal arrest?A: If so determined by the court as to his culpability, the answer is it depends.

Generally, it has nothing to do with is culpability. The illegality of the arrest would not entitle to the accused to be acquitted. Perhaps the only time or instance that he may be acquitted is when the

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object evidence was seized by reason of an arrest --- search incident to an arrest. Because if the arrest is illegal, the subsequent search is likewise invalid. And the evidence obtained therefrom is inadmissible. If that object evidence constitute part of or is the corpus delicti of the offense, it will not be appreciated, the logical conclusion is that the accused will be acquitted. So that is the only instance perhaps that the accused may be acquitted on the ground of illegal arrest.

Let us tackle this small item on immunity from arrest from members of congress in relation to arrest. Well, as you all know, under Section 11, Article VI, this involves offenses where the penalty is not more than 6 years and is claimable by members of congress while in congress is in session.

Q: What about there is conviction already? Is the privilege claimable?A: It is no longer claimable. The case of JALOSJOS including the case of TRILLANES.

RIGHT TO PRIVACY

Now, this concept of privacy, is not very much discussed in jurisprudence not because for any reason but the Constitution seemingly limits the express provision or mutual understanding that the right to privacy is limited to Section 3 on privacy on communications and correspondence. But through the years, by jurisprudence… if you remember the case of ARNAULT V NAZARENO, the refusal of Arnault caused his detention for contempt. His main argument then is that if he will be forced to testified in Congress, his right to privacy in his meetings with another would be violated. The SC said that there is no violation because the Congress has the right inquire into the matter.

In the case of MORFE V MUTUC, this has nothing to do with the SALN. RA 3019 requires all government employees to submit every January a SALN. The main argument then in that old case is that it will violate the right to privacy. It will make public our assets and liabilites. The SC said no. You are a public officer. There is no private about that. In the context that your right to privacy is generally limited.

In the case of GAANO V IAC, Anti-wiretapping Act. The SC said it does not violate because there is a court approval required before conversations are being tapped and recorded. So, the concept of right to privacy, though not expressly provided in the constitution, has long been considered to be part of our constitutional rights. It simply means or is characterized as “the right to be left alone or let alone.” Of course, just like any other right, this is not absolute and may be subject to reasonable restriction.

Q: What are the common provisions with respect to right to privacy?A: They are, among others, the following:

1. Sec. 2 – Right against unreasonable searches and seizure

2. Sec. 3 – Privacy of communication and correspondence.

3. Freedom to Associate

4. Freedom of Religion – the right to be left alone in the practice of your religion provided it does not violate somebody else’s right.

5. In our laws, in the RPC, we have provisions on protection of trade secrets. The trade secret cannot be made in public, otherwise you’d be liable for a penalty.

This right of privacy has somehow being involved in our system where in the case of OPLE V TORRES, the national ID system, this is also discussed… a new kind of information or data gathering which they impose. The newer case is this case of SAS V DANGEROUS DRUGS BOARD on the requirement of RA 9165 for mandatory random drug testing. Candidates for Senators, members of Congress, Students, Private employees, public employees, and those arrested in the commission of offenses. Is a random testing valid?

As to National Candidates or Congressional Candidates, candidates whose qualifications are provided for by the Constitution, RA 9165 is invalid because no law can be passed amending the qualifications set by the Constitution on these candidates.

With respect to students, because of the concept of loco parentis, the school acts as substitute parents for the students all the way up to the tertiary level. The school therefore is allowed based on the law. The apparent idea is that no person is identified. The reasonableness of the concept is based on the fact that you are not identified as a drug offender. It’s an objective assessment in line with the policy of the law to decrease or address the drug problems. So this is true to students. This is true also for private employees.

In the private sector, though not on the same breadth and argument on the discussion, the SC said that it is valid because employment in a private sector cannot claim right to privacy as normally because your employment is based on management policies to begin with. Your right to act is not absolute because your acts and conduct is generally limited by the company policy. There is CBA, rules on discipline; there are other reasonable policies that the company has imposed even before you came in. So that when you come in and is employed by the company, you all very well know that your right to privacy is no longer absolute. With all the more reason with those in the government service because public office is a public trust. If those employed in the private sector can be validly made to undergo random testing, with all the more reason that should be applied in government because of the nature of their office.

But it is totally different on those arrested for law violations because the objectivity factor is lost. What is the reason for subjecting this arrested person to drug testing? To use the result against him. So the policy of the law is lost and therefore mandatory drug testing for law violators is not valid. It is not valid because the law is of a different objective. Because if you ask on another situation, can all offenders be subjected to drug testing not based on 9165? I would say the objective of the law is to… like biometrics, data gathering… I think it would be valid. But not in this particular law, 9165, because the objective again is to address the drug problem and there is the objectivity factor that the person subjected to random testing is not identified or identifiable to be a drug user or offender.

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FREEDOM OF EXPRESSION

Under US Laws, the Bill of Rights is enshrined in the First Amendment. This is to emphasize its importance based on a democratic society. However, despite the freedom of expression guarantees, a free exchange of ideas to ascertain political truth, it

is available only so far as it protects matters of public interest or public issues. Purely private matters do not come under the guarantee although for some public officials there is a little bit of allowance for private matters so far as it affects their capacity to discharge their public functions.The modes of expression are verbal and the non verbal matter. Generally there are two components of freedom:

1. Freedom from prior restraint and 2. Freedom from subsequent punishment.

Almost in all cases the freedom from prior restraint is not normally construed against the State. But this is regarding content based restrictions. If it is content neutral, there is allowance for prior restraint provisions. Freedom from subsequent punishment is normally discussed as to whether the limitation is allowable. This is because the exercise of expression has been allowed although subjected to some form of punishment. In the case of Chavez v. Gonzales, this involves the “Hello Garci” scandal where the Department of Justice and the National Telecommunications Commission (NTC) issued official notices that those who will be distributing the so called “Hello Garci” recordings may be subjected to some kind of prosecution or punishment. Petitioner Frank Chavez questioned the validity of such issuance on the ground of valid suppression. While he did not have the legal standing, the Supreme Court nevertheless discussed the merits of the petition because of its transcendental importance. This case gives a good rundown of the history of Freedom of expression from its historical or philosophical basis up to the time of the modernization of life. It is stated that:“the vital need of a constitutional democracy for freedom of expression is undeniable, whether as a means of assuring individual self-fulfillment; of attaining the truth; of assuring participation by the people in social, including political, decision-making; and of maintaining the balance between stability and change.”

It is freedom for the thought that we make no less than for thought that agree __ with us. So it is to compete in the free market of ideas, not only to allow to adhere for what we want to express but also the freedom to be given or be subjected to those who do not want to hear. The scope is so broad that it extends protection to nearly all forms of communication. It protects speech, print and assembly regarding secular as well as political causes, and is not confined to any particular field of human interest. The protection covers myriad matters of public interest or concern embracing all issues, about which information is needed or appropriate, so as to enable members of society to cope with the exigencies of their period. The constitutional protection assures the broadest possible exercise of free speech and free press for religious, political, economic, scientific, news, or informational ends, inasmuch as the Constitution's basic guarantee of freedom to advocate ideas is not confined to the expression of ideas that are conventional or shared by a majority.

That is the reason why freedom of expression is not limited to section IV because it is also included in Section V, freedom of religion and section VII in freedom to access to information of public concerns are also included because the taking is that the right to express must not be based on ignorance of facts. You must have to be made aware so that you have the capacity to discuss these matters.

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Now the problem with expression is that in relation to the particular forms of media, is the so called regulation. In this case of Chavez v. Gonzalez, the Supreme Court made a distinction based on the history of regulations imposed by the State and in the past decided on. Why is there a difference in the treatment of different kinds of media whether its print or broadcast? In the old case of Eastern Broadcasting vs. Dans[G.R. No. L-59329

July 19, 1985], there is a difference because of the belief that the Broadcasting has far reaching effects than so called print media.

“The broadcast media have also established a uniquely pervasive presence in the lives of all Filipinos, Newspapers and current books are found only in metropolitan areas and in the poblaciones of municipalities accessible to fast and regular transportation. Even here, there are low income masses who find the cost of books, newspapers, and magazines beyond their humble means. Basic needs like food and shelter perforce enjoy high priorities.

On the other hand, the transistor radio is found everywhere. The television set is also becoming universal. Their message may be simultaneously received by a national or regional audience of listeners including the indifferent or unwilling who happen to be within reach of a blaring radio or television set. The materials broadcast over the airwaves reach every person of every age, persons of varying susceptibilities to persuasion, persons of different I.Q.s and mental capabilities, persons whose reactions to inflammatory or offensive speech would be difficult to monitor or predict. The impact of the vibrant speech is forceful and immediate. Unlike readers of the printed work, the radio audience has lesser opportunity to cogitate analyze, and reject the utterance.”

In the US, the Supreme Court said that there are 3 reasons why Broadcast Media stands apart from print media. One, the scarcity of the frequencies by which the medium operates. Second, the pervasiveness of the medium and Third, its unique accessibility to children. This has been the basis in the US which has been followed in the Philippines. Three major reasons why Broadcast media has been regulated strictly as opposed to print media.

In this case of Chavez as well, the first reason, the scarcity of the frequencies, television or radio broadcast are based on frequencies. There are so many or so few frequencies. But at present digital technology, the internet. Should there be a difference if even the internet is available, no more scarcity. The Supreme Court said that it is always on its unique accessibility to children although with respect to the digital age, the state regulation has not been updated. The thing is that, in the case of Eastern v. Dans, it is always the concept of accessibility of children. The reason why print media is not that regulated strictly is because its accessibility even to non children, newspapers, books, comics, you have to buy and you have to know how to read. Unlike in broadcast media, if you can understand what is said, you are subjected to the commentary. Just by viewing the TV, you know what it is all about. Even the most unwilling viewer is subjected to the expression. It must be distinguished however what is allowable restriction –

1. Content neutral or 2. Content based.

3.It is content based restriction that is construed strictly against the state. But if it is content neutral, the state may be given some leeway provided there is no unnecessary intrusion or limitation on the rights of free speech. The Supreme Court made mention of an “Intermediate Approach”. In your outline, it is actually referred to as the “O’Brien Test”. In this case of Chavez, the Supreme Court used the term “Intermediate Test”. The test is called intermediate because the Court will not merely rubberstamp the validity of a law but also require that the restrictions be narrowly-tailored to promote an important or significant governmental interest that is unrelated to the suppression of expression. The intermediate approach has been formulated in this manner:A governmental regulation is sufficiently justified if it is within the constitutional power of the Government, if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incident restriction on alleged [freedom of speech & expression] is no greater than is essential to the furtherance of that interest.

This Intermediate test, it is content based restriction. There are normally 2 tests used:

1. Balancing of Interests and

2. Clear and Present Danger.

The Supreme Court said that what is normally used is the Clear and Present Danger Test. There are 2 operative phrases there: clear and present. Clear means that the evil sought to be avoided would happen and there is a causal relation between that. Present means that the evil sought to be avoided inevitable. So, two considerations, the causal relations between the act sought to be prevented and the evil sought to be avoided. Present means the happening if it shall not be regulated.

Now, in this case of Chavez the Supreme Court also mentioned of the test by which freedom of the press. There are four(4) aspects of freedom of the press stated in the case. The first is

(1) Freedom from prior restraint, (2) freedom from punishment subsequent to publication;(3) freedom of access to information; and(4) freedom of circulation.

So, this is freedom of the press exclusively and does not refer to freedom of expression generally. So the first two are common to all but for the press there are two more additions: (3) freedom of access to information and (4) freedom from circulation. This access to information is applicable to all.

Now, this case of Tulfo v. People, speaks of __ and government functionaries. Remember that case of Justos v. People where the SC made that classic discussion on the rights of the media to criticize public officials or those in public office. The SC made mention that public officers must not be too thin skinned. That is generally what is applied when a public figure sues a media practitioner writes something defamatory. Usually it is 1. Criminal case for libel and 2. Civil case for damages. The allowance for criticism depends on the branch of government or the functions of such public officer. For example, if it is the Judiciary, it is stricter, the higher the court, the more strict the regulation is allowed. In ordinary discussions, if it were to be just by a government official, criticism must be specific, constructive, reasoned and tempered and not contemptuous contemplation of the entire government set

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up. Use of treaty or language must be on persuading the readers on the issue and not creating disturbance. What about in accuracies in the reporting? The SC said that if it has to be unavoided, care must be taken. For example, to avoid what is not true. If it were to be an unavoidable, that is actionable. But if it is a willful assertion of a falsehood or a reckless disregard on ascertaining what is true or not, that may not be the basis of avoiding any liability.

In the case of Tulfo, G.R. No. 161032. September 16, 2008, the Supreme Court referred to it as the “Reckless Disregard” test. Tulfo wrote a series of articles about a Customs commissioner allegedly committing corrupt practices. One of the defenses was that he did not know this person, Atty. So and there was no malice. So the Supreme Court said, based on the old case of New York Times vs. Sullivan, which should be to determine whether the defamatory statement was made with actual malice, that is, with knowledge that it was false or with reckless disregard of whether it was false or not. So if you were to write about something, under the idea of freedom of the press or freedom of expression, this must have to be based on what you have ascertained. There is reasonable care imposed upon media practitioners by law that what you wrote has been ascertained or there is no willful assertion of a falsehood. In fact, this is the main objections to the “Right to Reply” bill. There has been a discussion on 2 points. 1. To decriminalize libel and 2. If it should not be decriminalized, then the right to reply bill has to be passed. Meaning, if a person is a subject of a news article which may necessarily affect his reputation, that person must have to be given a right to reply. If the article is on the first page, the reply must be on the same first page. Normally, you see this where members of the media would indicate “reply to Mr. so and so for commentary”. The thing is that, media practitioners are not allowed to disregard basic sense of ascertaining what is true or avoiding reckless of ascertaining what is true or not. Otherwise, they can be held liable for such defamatory statement. The usual punishment that a person may undergo or suffer under free speech is either 1. Libel or 2. Contempt. As mentioned earlier, mostly if the government functionary criticized is not the court, there is much leeway rendered. If it is the court, there is stricter implementation of regulation. The Supreme Court tried to explain this in the case of In the Matter of the Allegations Contained in the Columns of Mr. Amado P. Macasaet Published in Malaya Dated September 18, 19, 20 and 21, 2007, this refers to the alleged bribery of the Supreme Court where a lady Justice who handled the case, Justice Santiago. The Supreme Court discussed whether Mr. Macasaet was liable and reiterated certain principles and one of these is the basis why. The Supreme Court said that this is part of what is said as the “Open Justice Principle”. It means that there is a close link with the right of freedom of speech and of press to the public right to criticize the government including the judiciary. This simply means that if the public is allowed to criticize the government, there is a certain degree of assurance that governance will be ? this is also true with the judiciary. However, there must have to be one safeguard against. In the open justice principle, it is allowable or justified because

1. There is a safeguard against judicial arbitrariness, 2. There is maintenance of public confidence in the

administration of justice if the judiciary is to be open to criticism as well.

However, this potentially devastating attacks and unjust criticism can threaten the independence of the judiciary. There are two types of attacks to the judiciary that are considered:

1. The so called “Individual Judicial Independence” and 2. Institutional Judicial Independence.

In the first, it focuses on each particular judge and seeks to ensure his ability to decide cases with autonomy so that if the Individual Judicial Independence is attacked , then the ability of that judge to render a case independently may necessarily be affected as well. The second concept of Institutional Judicial Independence focuses on the independence of the Judiciary as a branch of government. Is it subject to criticism? Yes it is. But not those which are potentially devastating. The problem is, what are those considered as potentially devastating? If you remember the case of Erwin Tulfo, his case was actually affirmed in the Supreme Court. Criticisms to the Judiciary must have to be

1. Made in Good Faith, 2. Couched in respectful language, 3. Must be on the merits, 4. Must not downgrade, or ridicule the court or insult its

members.

That should be fair criticism. The reason for that is, if the criticism is not fair, it may result into the following: 1. it will prevent judges from remaining insulated from the personal and political forces of making an unpopular decision and 2. The Judiciary would erode, its trust and confidence, as an institution. What is expected to happen in the public trust would be non active rights of government is lost. In recent history you have had experience well that 1. Involving bribery of the Justice of the Supreme Court, the GSIS and Meralco case the decision to fire Justice Reyes.

Now with respect to content neutral restrictions, while it has been generally accepted that if the restriction or regulation is content neutral, then it may be allowable. But care must have to be determined that it is really content neutral. It has nothing to do with the exercise or expression itself on the substance and if there is a relation between the exercise or the expression itself it is unrelated to what is necessary to further that substantial government interest. That is what we refer to as the O’Brien Test or in the case of Tulfo or Chavez, this is the “Intermediate Approach Test”.

“The O'Brien test, in which a regulation must only incidentally impugn the content of speech and be narrowly tailored to achieve a legitimate government interest”

The basic rule we have so far is the Public Assembly Act of 1985 which speaks of circumstances by which a public assembly can be had independent of the expression itself. This has something to do with the use of or requirements before any public streets or public places can be used other than those held in so called freedom parks.

ACADEMIC FREEDOM

Then we go to Academic Freedom. There are only 2 cases here. 3 aspects of academic freedom would be: 1. Right of the Institution of Higher Learning, 2. The right of members of the Faculty in Institutions of Higher Learning and 3. The right of students in Institutions of Higher Learning.

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It has to be emphasized that the academic freedom referred to under section 5, paragraph 2, Article XIV would necessarily refer to Institutions of Prior learning because of the concept of Parents Patriae or Locus Parentis with respect to the State or teachers or children or little kids. Emphasis is on institutions of higher learning. In the case of De La Salle v. CA, this has something to do with that hazing incident, where respondent students were eventually dismissed. The question was whether or not the students had the right to Academic Freedom, had the right to due process in school disciplinary tribunals, and whether la Salle, as an institute of higher learning, possesses Academic Freedom which includes determination of who to admit for study. The Supreme Court reiterated that same principle and said that this Academic Freedom under Section 5(2), Article XIV of the Constitution guaranties all institutions of higher learning academic freedom. This institutional academic freedom includes the right of the school or college to decide for itself, its aims and objectives, and how best to attain them free from outside coercion or interference save possibly when the overriding public interest calls for some restraint. According to present jurisprudence, academic freedom encompasses the independence of an academic institution to determine for itself (1) who may teach, (2) what may be taught, (3) how it shall teach, and (4) who may be admitted to study.

Is discipline part of that aspect? The Supreme Court said that by instilling discipline, the school teaches discipline. Accordingly, the right to discipline the student likewise finds basis in the freedom "what to teach." So, you teach your students discipline, then they do not follow the rules of discipline, they can be expelled, it is part of the “what to teach” as part of Academic Freedom.

In this case of Civil Service Commission vs. Henry Sojor, G.R. No. 168766, May 22, 2008, a presidential appointee to be the President of a State University when he has been subjected to administrative complaints ranging from nepotism, dishonesty, falsification of public documents, grave misconduct and Conduct Prejudicial to the Best Interest of the Service. Is he is beyond the scope of the CSC being a presidential appointee because he enjoys Academic Freedom? The Supreme Court said that the principles of Academic Freedom do not find application on the facts of the present case. Contrary to the matters traditionally held to be justified to be within the bounds of academic freedom, the administrative complaints filed against Sojor involve violations of civil service rules. He is facing charges of nepotism, dishonesty, falsification of official documents, grave misconduct, and conduct prejudicial to the best interest of the service. These are classified as grave offenses under civil service rules, punishable with suspension or even dismissal.

This Court has held that the guaranteed academic freedom does not give an institution the unbridled authority to perform acts without any statutory basis. For that reason, a school official, who is a member of the civil service, may not be permitted to commit violations of civil service rules under the justification that he was free to do so under the principle of academic freedom.

The school’s president is not equated to be the institution itself. So the president as well as all the other employees or teaching personnel of the school would have that aspect of Academic Freedom referring to teachers and members of the faculty of

Institutions of Higher learning. What is the scope of their right for Academic Freedom? It is the right of a member to pursue his studies, in his particular specialty, make known to the public the results without fear of retribution of such conclusions whether political, economic or academic establishments. This may also refer to freedom of Professionally qualified persons to inquire, discover, establish, recruit as they deem fit in the field of their competence subject to no control except rational and acceptable methods. So you have the rights of Atty. Dela Banda publishing a book on Criminal Procedure should not be subject to any control but only as to profit because that is his field of his expertise and competence, he has the right to publish works of his particular specialty.

FREEDOM OF RELIGION

Freedom of Religion speaks of the prohibitions included in two: 1. Excessive government entanglement with religious

institutions and 2. Government endorsement or disapproval.

That is the scope of the prohibition. Two prohibitions. The prohibitions are discussed of the scope of the freedom. There are two scopes of freedom as well.

1. Freedom to believe and 2. Freedom to act in accordance with one’s belief.

We all know that in the Freedom to believe, it remains in the realm of the mind, there is no regulation that can be had. But if it is referring to our right to act in accordance to one’s belief, then it may now be subjected to regulation. But regulation, however, must have to conform to the scope of the prohibitions mentioned earlier: 1. Excessive government entanglement with religious institutions and 2. Government endorsement or disapproval.

It simply means that if it is freedom from exercise in relation to one’s religious belief, the State must have to be ideally an innocent bystander. Meaning, it must not prevent the exercise of such right, nor should it endorse what is to be referred to as a State organized religion. For so long as it does not affect the right of the State to administer as well as the right to ___ , then the exercise must be allowable. In the constitution, we have the separation of the Church and the State imposed actively or passively. Actively by endorsing the religion or passively by limiting the practices of others.

The constitution likewise mentions of some provisions respecting the Religious exercises. Under section 5 of Article III this is the basic prohibition.

Article III, Section 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights.

Section 28 of Article VI, exemption on real estate taxation of properties used by the Churches for religious purposes, Article VI, section 28 (3) Charitable institutions, churches and personages or convents appurtenant thereto, mosques, non-profit

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cemeteries, and all lands, buildings, and improvements, actually, directly, and exclusively used for religious, charitable, or educational purposes shall be exempt from taxation.section 29, Article VI, public money Article VI, section 29 (2) No public money or property shall be appropriated, applied, paid, or employed, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian institution, or system of religion, or of any priest, preacher, minister, other religious teacher, or dignitary as such, except when such priest, preacher, minister, or dignitary is assigned to the armed forces, or to any penal institution, or government orphanage or leprosarium.

Article XIV, section 3, religion in public schools, this is a secondary element for secondary schools. It has to comply with such conditions and there should be no government expense. Article XIV, section 3 (3) At the option expressed in writing by the parents or guardians, religion shall be allowed to be taught to their children or wards in public elementary and high schools within the regular class hours by instructors designated or approved by the religious authorities of the religion to which the children or wards belong, without additional cost to the Government.

Section 4 of Article XIV, operation of religious institutions, though allowed but referred to the governing body.

Article XIV, section 4 (2) Educational institutions, other than those established by religious groups and mission boards, shall be owned solely by citizens of the Philippines or corporations or associations at least sixty per centum of the capital of which is owned by such citizens. The Congress may, however, require increased Filipino equity participation in all educational institutions.

For so long as the State does not in effect commit any act which has a non secular purpose, or that its primary purpose is it advances or inhibits a religious practice, then the State intervention with religion is allowed. It cannot be helped that the State, in some cases, commit acts which had somehow affected the practice of religion.

I think late last week Malacanang issued an official statement that religious leaders should not take advantage of their leadership for political ends. Since GMA is seen to be a bad leader, religious leaders are now eyeing to be presidents.

Can this religious persons qualify or are they disqualified to sit for elective public offices? In your outline there is this old case of Pamil v. Teleron, G.R. No. L-34854, November 20, 1978. In this old case, there is this prohibition because of the old law before but in the Local Government Code and in the Constitution respecting elective positions both national and local, being a religious is not a disqualification. In law, today, you can see that if it is a party list election, then there is a prohibition for a party to represent the religious sector. That is quite clear. But when a religious person to be a nominee of party, like, CIBAC, the first nominee is Villanueva. Is that a disqualification? The answer is no. For a religious to be a nominee, there is no disqualification. Similarly, other elective public office, there seems to be no disqualification. So is Governor Ed Panlilio disqualified if he is to run for President? So, they are not disqualified. Can the State

therefore prevent them? Can the State through Congress enact a law to create a disqualification? For national, it seems to be that a legislation cannot amend the constitution, just like in the Dangerous Drugs Board case. If the qualification is such, the law cannot add another qualification. No law can be enacted to put an additional qualification by providing for disqualification. But what about the local? Because that is not amending the Constitution. Can the Local Government Code be amended? I read somewhere that in the exercise of your right, no religious test must be applied. I don’t know.

RIGHTS OF PERSONS UNDER CUSTODIAL INTERROGATION

On March 2, 1963 a young woman from Arizona was … in a 1953 parked automobile driven into the desert. Miranda was then lead to the interrogation room. Then, the police officers proceeded to question him. Miranda had never been informed of his rights prior to the questioning. He was never told he had the right to an attorney to be present during the questioning. After two hours, the officers had succeeded in getting a written confession signed by Miranda. He was not given a chance to consult a lawyer. After being sentenced to 21 year prison term he went to the Supreme Court his argument the 5th amendment protection against self-incrimination and the 6th amendment guarantee of an assistance of a counsel for a criminal defense. Ruling in the 1966 case of Miranda vs. Arizona the Supreme Court granted Miranda a new trial. Ironically without his confession as evidence Miranda was again convicted and was again given another 21 yrs. This gives rise to what is now known as Miranda vs. Arizona the so-called Miranda Doctrine.

Section 12 of Article III of the Constitution provides:

“Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.”

In the 1966 decision of the case of Miranda the Miranda warning is on the 6th amendment on the assistance of a counsel clause in relation to the argument on the 5th amendment protection on the right against self-incrimination which is now Art.3 Sec. 17. The reason why the majority although there was 5 dissenting on the 15 member or 9 member 1 2 3 4 5 there were 5 dissents in this 1966 decision the Supreme Court of the US said that ___ custodial

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interrogation is psychological rather than physically oriented, coercion may be mental as well as physical and the blood of the accused has the only hallmark of an unconstitutional imposition. Interrogation still takes place in privacy, privacy results in secrecy and this in turn results in a gap in our knowledge of what in fact goes in or goes on in an interrogation. It is obvious that such an interrogation environment is dedicated to a no purpose other than to subject the individual to the will of the examiner. This atmosphere here is its own badge. To be sure it’s not physical intimidation but it is equally destructive of the human dignity.

Precisely because of the nature of an aid custody interrogation, the Constitution thus first institutionalized or incorporated the so called Miranda Doctrine, were based on earlier rulings of the Supreme Court, it shall be the duty of the officer conducting the investigation to give the person to be investigated the so-called Miranda warnings. The Miranda warnings consist of what the rights are and it has to be made to the person that he shall be understood by him intelligently. There must have to be meaningful transmission of the rights. Basically it refers to the right of the person to be informed that he has the right to a counsel, the right to remain silent, that he has a right to be assisted by a counsel and if he could not afford he has to be given such assistance. The Supreme Court said in that 1966 ruling that at the onset the person in custody must be informed in clear and unequivocal terms that he has the right to remain silent. We always have that question that if the person to be interrogated is a lawyer does he need to be given such warning? The answer is yes because even if that person knows, for him to be informed of this warnings or his rights, you give the individual the idea that this interrogators are prepared to recognize this privileges should he choose to exercise. The next part of the warning or of the right is the grant of the assistance of a counsel and importantly the Supreme Court said that these individuals must be informed that if he could not afford the assistance of a counsel he is also entitled to be appointed one to be his counsel or to represent him. This is to ensure that the persons being indigent will not be a bar for him to be protected and be given that 6th amendment rights.

While originally this privilege or right during investigation is discussed under the concept of the Miranda ruling in relation to that case of Escobelo vs. State of Illinois of what constitutes interrogation being or meaning that characterization of that said questioning or line of questioning that would no longer deal on the aspect of the crime under investigation but would already place that person as a possible suspect of the crime under investigation, that is already an investigation or interrogation. This has already been modified accordingly because of our RA 7438 which expanded the so-called protection. While originally the phrase, the right would only be available if the person is placed under custodial interrogation in the 73 in the 87 it now includes any form of investigation, so for so long as the person is being investigated in the concept of Escobelo meaning you are now a suspect or the line of questioning or the answers being elicited then your right is now claimable even if you are not under custody. It has further been expanded under 7438 considering that 7438 now extends to the time of arrest because this law pertains to rights granted to persons arrested, detained and under investigation. So, if you are arrested seemingly under 7438 your right to be informed begins or commences. So if there is no warning given or you were not apprised then there seems to be a

violation. Also in 7438 the practice of inviting persons to police stations for purpose of questioning is already a part of the phrase “custodial interrogation”. So it now expands to the time of arrest not only limited to investigation proper or when the person is placed under custody.

Now, despite the changes or the expansion of the rights claimable, there seems to be no question as to what is required as to meaningful transmission the rights are supposed to be meaningfully transmitted to the person, so that the person would understand what those rights are more importantly to know the consequences if and when those rights are waived. So the individual differences as to the person with respect to age, probably cultural background, language he speaks or understand, the degree of education are some of the factors which would affect what are supposed to be considered as meaningful transmission. Well of course this assumes that the officer is also capable of transmitting the rights. If the police officer is not capable then there will be a problem to begin with, how could there be meaningful transmission.

Now, despite that there is somehow a little difference with respect to the waiver of the rights because the rights where first incorporated in the 73 so the question then is, if the statements were given prior to the 1973 constitution are these statements suppose to be admissible? The pronouncement earlier was that confessions which were obtained by reason of torture or compelled testimonies are not generally accepted even if no Miranda warnings or rights were instituted because the state would not allow compelled or coerced confessions. So, for so long as the statements given prior to the 73 were voluntary then they are admissible. The only problem then is how do you consider a statement as voluntarily made? Then the 73 also requires it to be based on a valid waiver, assuming that the person investigated has confessed. The rule on valid waiver then however was not subject of any formality until that Galit ruling in 1985. The Galit ruling in 1985 that there has to be a requirement that the waiver must have been done voluntarily, knowingly and intelligently as almost similar to a pre 1973 confession. The only difference is that there must have to be a meaningful transmission. Prior to 1973 there was no such requirement. So for so long as the rights were given, the accused or person investigated was properly warned, that there was meaningful transmission, the waiver can be had by the fact that the person has voluntarily given the confession.

After that Galit ruling in 1985 there was some modifications and the modification was when there was still no need of a written waiver, the waiver must be done with the assistance of a counsel and this time around the assistance of counsel during the waiver cannot be waived.

The 1987 constitution made it more strict that the waiver must now be in writing and the assistance of a counsel is also required and the assistance of a counsel during the waiver cannot be waived. RA 7438 expands it further as we said, in the language of the law there are two documents required, the custodial investigation report and the extra judicial confession itself. The entire idea being that the documents will be submitted as evidence to prove the admission. The extra judicial confession, it must be in writing and signed by the person in the presence of his counsel or if there is no counsel but there is a valid waiver it must be signed in the presence of any of the parents, elder brother or sister, his spouse,

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the municipal mayor, the municipal judge, district school supervisor, priest or minister of the gospel as chosen by him otherwise the confession is inadmissible. So by just looking at the document it must have to contain the signature of the confessant, it must also contain the signature of the counsel if there is no signature of the counsel what must be found or attached document therein or included there in would be a valid waiver which would include the assistance of counsel and the signature of any of those persons listed. Other than that or if one is missing the confession not admissible. The custodial investigation report is almost the same. It must be read and adequately explained to the person or confessant by his counsel or the assisting counsel as provided by the investigating officer in the language that is known to the detained or arrested person, otherwise the report is inadmissible.

Now 7438 does not grant the accused any other right except for the exclusionary rule. What it grants however as another form of remedy is subjecting these persons who have violated his right to some penalties or criminal liabilities that is more of protecting him by penalizing omissions or non-feasance on the part of those persons tasked by law to grant him his rights under investigation or from the time he is arrested. That is the extent of the privileges granted under section 12 under RA 7438.

Now in your outline there are certain confessions which are not included obviously those which were executed before January17, 1973, those which are spontaneous or under the rules on evidence as res gestae. Spontaneous statements meaning those statements given as voluntarily admissions or confessions given before being asked. So in all these cases the common denominator is that these confessants offered the confessions even without being asked. Not applicable in administrative investigations for section 12 covers only those persons under investigation for the commission of an offense. That is the opening phrase of section 12, if the person is under administrative investigation cannot be claimed. But question is can a person in an administrative investigation say in an employee-employer relationship say in an office, is he entitled to be assisted by a counsel? In an investigation is he entitled to be assisted by a counsel? Not under section 12 but in any other law? Is he entitled to be assisted by a counsel in an investigation?

Custodial ___ police line ups. Well police line ups is not part of “in custody investigation” technically speaking because in a police line-up there are no questions asked except to point you to a direction. Like can you make a quarter turn. Again investigation in the case of Escobelo is characterized as line or series of questioning which would point out to a possible liability to a person being asked in the crime or crimes under investigation. So if it has nothing to do, like general inquiry or innocent questions like what’s your name, where do you live? Probably those are not part of investigation.

Now, we have two more points with respect to extra judicial confessions. One is on the voluntariness of the waiver and the other is on the voluntariness of the confession. Question is who has the burden of proving that the waiver is voluntary? The other question is that who has the burden of proving that the question is involuntary? As to the waiver it has always been consistently held that the state has the burden of proving that the confessant

has voluntarily waived his right to remain silent, as to counsel etc etc etc. This is one instance where the presumption of regularity in the performance of an official duty or function is not applicable. This is because there is protection granted to an individual, that the state has to prove to the court that it has discharged its obligation under the constitution which is to give the Miranda warnings in meaningful transmission of the rights, making them personally understand the consequences of a valid waiver the confessant still waive his rights under the Miranda rights. So the prosecution has that duty. But on the question of voluntariness in the confession it is the burden of the confessant to show that the confession was involuntary. The presumption is that when a person confesses it is an ordinary admission of guilt because of remorse. So that when the accused would then after raise that the confession is involuntary it is his burden to show not by allegations solely but by proof that he was tortured, threatened or was under duress.

In one case, in this case of Aquino vs. Paiste a 2008 decision what happened here is that there was a complaint for estafa and respondent was “invited” in the NBI. During the investigation several things happened. One he was provided by a counsel. A certain Uy whom the accused did not question and readily accepted the representation services. Secondly, they actually came up with an amicable settlement. They agreed that blah blah blah. So everybody signed the amicable settlement. You know what an amicable settlement is, the parties sign on the terms of the agreement and the lawyers sign as well. This amicable settlement was used thereafter in the criminal case to prove that there was an admission. One of the questions raised was that this amicable settlement should not be admissible because this is in violation of Section 12 he was not given the Miranda rights. So in concept, custodial investigation involves any questioning initiated by law enforcement officers after a person has been taken custody. So when he was taken to the NBI was that part of custodial investigation? Supreme Court said that because of what has been extended by RA 7438 the person which was not formally arrested but was merely been invited for questioning is already granted the ___. It is evident that when they went there, it turned out that there was an execution of an amicable settlement. Supreme Court further said that, it can be gleaned from the amicable settlement that the custodial investigation was either aborted or did not push thru as the parties settled amicably. Thus the amicable settlement with the waiver of right to counsels appended was executed with both parties affixing their signatures therein in the presence of Atty. Uy. Petitioners’ contention that the constitutional rights were breached must therefore fail. Also Supreme Court said even if it were so, it went to discuss that the argument on duress would fall on the following reasons. First, she was provided with a counsel. Second, petitioner did not raise an objection against the appointment of such counsel for the entire duration. Third petitioners counsel Atty. Uy was undoubtedly engaged by her when they executed the amicable settlement because she was an independent counsel and such right to counsel is intended to preclude the slightest coercion as to admit something that is false.

That brings us to a special provision in RA 7438 on who can be an assisting counsel. An assisting counsel under Sec 12 can be any lawyer who has no interest in the case or is not directly affected by the case, or those who are not charged on conducting preliminary investigation or those charged with the prosecution of crimes. So in some cases were the assisting counsel is the municipal attorney, or in some the municipal mayor, can they be an assisting counsel

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under the terms of 7438? Technically they cannot be because they are charged with the prosecution of crimes. Meaning executive officers, prosecution of crimes being an executive function. But a question may be asked: if you don’t know any lawyer except a prosecutor can that prosecutor be an assisting counsel? If you go by the letter of 7438 that cannot be possibly valid. But if you go by intent or spirit why is that term assisting counsel defined as such? To preclude as in the case of Aquino vs. Paiste to preclude the slightest coercion as would lead the accused to admit something false. So if a person or lawyer is directly affected by a case is charged with preliminary investigation or who is charged with the prosecution of offenses technically they would want you to be guilty. That is why they cannot be assisting counsel.

Now, if that prosecutor is your brother, unless you have a fight before, probably he would protect your interest and would not want you to admit guilt. So I think the spirit gives more validity to the assistance extended by that prosecutor simply. Now please take note that in this Sec.12 the phrase “preferably of his own choice” this phrase is not found under rights of the accused during trial to be assisted to a counsel. This differentiates therefore that in the investigation stage, the choice of counsel is given while in the trial stage, the choice of counsel is not guaranteed. What is guaranteed is that the accused during trial will be heard by himself or thru counsel. But whether or not the counsel to assist him is preferably of his own choice is not extended during trial. The difference is largely based on the fact that during investigation there is no court yet who can protect the rights of the accused. In trial, while an accused is ably represented by any other counsel, even one appointed by the court, the accused is still protected because the judge inherently must ensure that the rights of the parties more so of the accused are observed. Likewise the Supreme Court said that even assuming that the amicable settlement is, well they said that the amicable settlement is not an extra-judicial confession. Assuming that it is, the document that was signed would still be admissible since none of the constitutional rights were violated. Petitioners’ allegation of threat, intimidation, violence remain but mere ___ (murag allegations ata).

In another case, in the case of Eugenio vs. People, she or the accused was arrested and she alleged that she was neither informed of her constitutional right to counsel nor afforded a right to a phone call. Is the right to a phone call included in the Miranda rights? Jurisprudence have it or would say that it is not part. The only rights extended to her would be the right to remain silent, to be assisted by a counsel, the right to be given an assisting counsel preferably of her own choice but not a right to a phone call. Besides the Supreme Court said that the right under Sec12 attains significance only if the person under investigation makes a confession in writing without aid of counsel which is then sought to be admitted against the accused during the trial. In such case the taken confession obtained in violation of Sec 12 is inadmissible as evidence against the accused. Here, there is nothing of that sort being introduced as evidence. So section 12 is not claimable. So what does this case actually mean? As in search and seizure and arrest the questions in investigations whether there were Miranda rights given, whether there were meaningful transmission, whether the extra-judicial confession is valid all boils down to whether there is an extra-judicial confession sought to be admitted. Because if there is no extra-

judicial confession sought to be admitted, then there is no use claiming any of the rights under Sec 12 except perhaps if you are to file a claim for damages under Article 32 of your Civil Code or criminal prosecutions under RA 7438. But with respect to the accused now being charged in court, if there is no extra-judicial confessions sought to be admitted then there is no use claiming rights under Sec.12 whether or not you were given Miranda warnings is immaterial in court.

Now just like in arrests, the question is: when is the exclusionary rule claimable? It is claimable when the confession is sought to be introduced. Not at any other time. So, just like in arrest you have to raise the illegality before you place yourself under the custody of the law. That is normally before you are arraigned or you have applied for bail. In the case of extra-judicial confession before it is to be admitted and as object document they are usually admitted after testimonial evidence. If the extra-judicial confession is excluded therefore, should it mean the accused to be acquitted? The answer is it would not necessarily follow. If the confession is the only evidence which could have been the sole reason for the conviction, if it is to be excluded, then necessarily the accused would have to be acquitted. But if there are other evidences even without the extra-judicial confession, which is to be excluded, sufficient to establish the guilt of the accused then the extra-judicial confession would not have a bearing.

This case of People vs. Concepcion talks about the appropriate time when the question should be raised. Appellants’ contention that they were not apprised of their constitutional rights upon their arrest cannot lead to their acquittal. The arresting officers’ failure to inform them of their Miranda rights or nature of their arrest should have been raised before arraignment. It is too late to raise these alleged illegalities after valid information has been filed, accused arraigned, trial commences and judgment of conviction rendered. So, it cannot be raised on appeal, it must be raised at the appropriate time. Section 12 of Art 3 tries to incorporate the applicable provisions of 7438 because somehow it would require a little modification as to when the rights are claimable and the specific requirements on court (?) on an admissible extra-judicial confession and custodial investigation.

RIGHT TO BAIL

Bail, is somehow simply provided for in the constitution which is one supposed to be either a matter of right or a matter of discretion were the penalty imposable is not reclusion perpetua or higher being the median. if the penalty impossible is less than reclusion perpetua or higher bail becomes a matter of right but if it is reclusion perpetua or higher bail is a matter of discretion. Discretion there is supposed to be determined by the court in an appropriate summary hearing in a bail application to determine whether or not evidence of guilt is strong. If evidence of guilt is strong then bail is denied but if evidence of guilt is not strong then bail is to be granted. In the case of Valero vs. Court of Appeals the court found that the position of the court to grant bail despite the fact that the evidence of guilt is strong is reversible error. This just reiterates the principle that if bail is matter of discretion there must have to be a hearing to be conducted there must be sufficient opportunity granted to the prosecution to prove so much of the evidence of the prosecution that the evidence of guilt is strong. This is not to prove that the evidence of guilt is sufficient to prove guilt beyond reasonable doubt. Only that in all probability so much

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amount of the evidence by the prosecution is sufficient to establish that evidence of guilt is strong.

The entire idea is to grant temporary liberty while the case is pending. However, with the advent of the new rules on bail under Rule 114 of Revised Rules on Criminal Procedure somehow, the slight modification on when bail is a matter of right and when bail is a matter of discretion because seemingly there is discretionary bail grant if the decision is rendered by the RTC despite the fact that the penalty imposed is less than reclusion perpetua or higher. This is provided under Sec. 5 under Rule 114. If the penalty of the RTC exceeds 6 yrs, so obviously it is less than reclusion perpetua or higher and the accused suffers any of the ff circumstances:

(a) That he is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime aggravated by the circumstance of reiteration; (b) That he has previously escaped from legal confinement, evaded sentence, or violated the conditions of his bail without valid justification; (c) That he committed the offense while under probation, parole, or conditional pardon; (d) That the circumstances of his case indicate the probability of flight if released on bail; or (e) That there is undue risk that he may commit another crime during the pendency of the appeal.

His entitlement to a continued bail or to a bail for the first time is subject to the discretion of the court. The discretion is exercised to determine whether or not the person suffers any of these disqualifications. So while constitutionally the question is when a bail is a matter of right or a matter of discretion. Somehow the new rules has modified it to extend that after conviction with the RTC, 6 years and 1 day to 20 yrs and something and it suffers any of the disqualifications then bail may be denied. But before then bail is always a matter of right. In the MTC bail is a matter of right before or after conviction because the penalty range is not more than 6 yrs. So until the logical end or conclusion of the case bail can be enjoyed by the accused. The problem with the RTC is that if the penalty range is less than reclusion perpetua bail is only a matter of right before conviction. If there is conviction obviously penalty is 6 yrs and 1 day to 20 and suffers disqualification then bail is a matter of discretion. The problem is almost all cases now are covered. Why is that? If the prosecution alleges that there is undue risk that he may commit another crime or that there is probability of flight. You are charge say of estafa and the penalty is from 6 yrs to 1 day to 20 assuming. You were granted bail at the inception with the RTC. You were convicted, you appealed it to the RTC but the prosecution would file a motion to revoke the bail because there is probability of flight. How could you ever dispute that? So almost all cases would be covered. No problem with recidivist, quasi-recidivist. But probability of flight? Probability of committing an offense? However in this situation, while ordinarily bail is a matter of discretion, what is to be determined is when the evidence of guilt is strong or not, in these particular 5 instances the discretion is merely limited to whether or not the accused suffers any of those disabilities.

The other parts of bail is when is it claimable? Well, theoretically once a person’s freedom of mobility is substantially affected, even if you are not technically arrested or placed under

detention, you can apply for bail. What are the two modes by which you can seek relief from custody? One, is habeas corpus. But procedurally you must have to go thru the entire process. Where and when can you apply bail? You cannot apply to the police officer because what you apply there is bribe actually. So you can only apply bail under Section 17 of rule 114:

Sec. 17. Bail, where filed. – (a) Bail in the amount fixed may be filed with the court where the case is pending, or in the absence or unavailability of the judge thereof, with any regional trial judge, metropolitan trial judge, municipal trial judge, or municipal circuit trial judge in the province, city or municipality. If the accused is arrested in a province, city, or municipality other than where the case is pending, bail may also be filed with any regional trial court of said place, of if no judge thereof is available, with any metropolitan trial judge, municipal trial judge, or municipal circuit trial judge therein.

(b) Where the grant of bail is a matter of discretion, or the accused seeks to be released on recognizance, the application may only be filed in the court where the case is pending, whether on preliminary investigation, trial, or appeal. Any person in custody who is not yet charged in court may apply for bail with any court in the province, city, or municipality where he is held.

So you file it in the court where the case is pending or if the judge is unavailable in any court in the place where the case is pending. That is the general rule. However, if you have been arrested in any other place because your warrant of arrest is effective anywhere within the Philippine territory implementable day and night, then you can apply bail in the court, of the place where you have been arrested. However, if there is special circumstance for your bail application like bail is a matter of discretion or you want to seek release based on recognizance then you can only apply bail in the court where the bail is pending. So the case is pending in Davao City and you have been arrested in Metro Manila if you don’t want to sleep one night in the jail you just post bail there. But the problem is if you want any other relief like you want the bail to be reduced, so there is a bail hearing, it cannot be granted by any other court aside from the court where the case is pending, you have to be brought back to the place of the issuing court or where the case is pending.

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RIGHTS DURING TRIAL

Sec 15 par 1 restates the requirements of due process, while Sec1 of art3 is general due process clause.

Sec 14 par1 is a restatement to emphasize the need for due process in criminal cases this emphasis is due to the fact that in criminal prosecutions, the lone individual or accused is up against the entire machinery of the state. This explains reason why due process is uphold better or much more in criminal prosecutions.

Second paragraph Sec. 14 is also covered by Rule115 Sec. 1 and in fact the rule somehow expands some of the rights _ and even included the right to appeal in cases where appeal is provided for by law. The right to appeal is therefore not a constitutional right but statutory one including violation of due process that since when there is a law allowing appeal and appeal is not a granted to the accused, there is a violation of due process. Otherwise, if there is no law granting for appeal then there’s no right to appeal. Perhaps the only degree of review that the accused can have can be in the form of certiorari.

The 1st right of the accused under Sec 14 par 2 is the Presumption of innocence. Presumption of Innocence simply creates a burden of proof on the part of the prosecution to prove the guilt of the accused beyond reasonable doubt. This concept of Burden of Proof is usually is used and confused with the concept of burden of evidence. Burden of proof would not shift because it is given as a duty on the part of the party depending on what kind of cases, usually it is With the plaintiff or complainant but Burden of evidence usually shift so long as one party is able would come up with the necessary evidence to show or prove its cause or defense.

For example in criminal case, while Burden of Proof is with prosecution remains with it ,if the prosecution was been able to prove or present proof of guilt and to that extent maybe BRD the burden of evidence will then shift. The evidence of the defense must have to be presented in court to create that so called Reasonable Doubt. Reasonable doubt in the case of LUCAS vs. PEOPLE is that doubt engendered by an investigation of the whole group and immediately thereafter such investigation to let the mind rest easy upon the certainty of guilt, absolute certainty of guilt is not demanded by the law to convict the criminal charge but moral certainty is required as every opposition to prove requisite to constitute the offense.

This Proof Beyond Reasonable Doubt requirement is somehow different from or it usually is in variance with in concept of probable cause to a type of person. It is usually said that when a criminal complaint is filed or investigating officer is to find probable cause, The Concept of to doubt is to acquit is never the factor. to doubt whether a criminal charge to dismiss is not part of Probable cause because they say if there’s a doubt whether or not there’s intention to dismiss now or not is to be left to the court. But if the criminal case is then filed in court and evidence would show thereafter there is doubt as to the guilt of accuse the court is supposed is to acquit because reasonable doubt is needed. I think the difference lie in the fact that in Finding of Probable cause is an executive function is not determination on

judicial determination. But the question is this, if at the time the criminal complaint is filed, the evidence of complainant and that of its witnesses is it sufficient to prove guilt beyond reasonable doubt? is there a reason or expectation that after trial the evidence will now become sufficient to prove guilt beyond reasonable doubt, because logical thinking would tell you that if at the onset the evidence so presented by the complainant is not sufficient to prove guilt beyond reasonable doubt, is there a possibility that after trial, that same amount of evidence will now constitute proof beyond reasonable doubt. But there’s seems to be difference in determining whether or not the complaint should be filed in court to charge the person thereby holding a full trial and the concept of reasonable doubt or convicting ___. But then again it is a constitutional right which would even grant the defense/accused an opportunity not to present any evidence because if the prosecution has failed to meet its burden to prove guilt beyond reasonable doubt, it can even file a demurrer of evidence and the cause of dismissal is without even presenting a single defense. There are also several _ that may be attached to presumption which is the prosecution must rely on the strength of its own evidence and not to rely on the strength or weakness of evidence of the defense.

So whether or not the defense of evidence is weak will not give the evidence of the prosecution relative strength. For example, what are the _ defense available to a defendant “alibi and denial”, so even if the defense is denial or alibi, the fact that this are the weakest defenses available, does not give reliable strength to the evidence of the prosecution, evidence of the prosecution by itself must have strong and sufficient to prove guilt beyond reasonable doubt.

The accused shall also have the right to enjoy to be heard by himself or counsel.

In RULE 115 sec 1(c)To be present and defend in person and by counsel at every stage of the proceedings, from arraignment to promulgation of the judgment. XXX

Well, the only part of the prosecution/criminal stage where the accused has to be present in person would be “arraignment”, it is most important part because no proceeding thereafter could be valid if it was used on arraigned personally. But in any other stage, his presence may be waived and at the same time it may even amount to a valid trial in absentia.

The right to be heard by himself or by counsel or solicited by counsel, as we have distinguished it under his right during investigation, the right to counsel during trial is not given to the accused as a matter of preference unlike in the investigation the preference is given to him, this is because this is an out of court procedure unlike in during trial there is already a court where the court is supposed to administer justice and prosecution is not there to convict him but the prosecution is also there to administer justice, just the same, so that his right to _ has been protected.

So there are several rules regarding appointments or representation to him. The important thing is that he has ability to be guided in the prosecution of case as well as in the defense especially because there is a, there may be a situations where the accused may be convicted not because he is guilty of the offense but he does not know how to protect his innocence, not able to

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meet the burden of evidence to protect and to defend his innocence.

RULE 115 sec1 (b) To be informed of the nature and cause of the

accusation against him.

This is where the arraignment takes place, the arraignment as mentioned earlier is not a useless formality. As a matter of fact, it is an important part of criminal prosecution, without it, there could be no valid prosecution thereafter. If you were to relate this to transmission of rights, this is also a procedure or stage where there’s a meaningful transmission of the charges against him, the reason being that he will be informed what the case is against him, he will be informed what prosecution evidence to expect and to inform him whether or not there is a possibility for him to enter into a valid plea for purposes of that accusation. Now, this right to be informed requires some sort of the meaningful transmission to be able to understand. For which reason, personal or individual differences has to be taken into consideration. What language he could understand, the degree of education, probably, mental capacity because depending on the mental capacity or sanity of a person, this may even cause the exemption from any criminal liability. If a person is insane at the time of commission, what would be the effect? If the person or the accused is insane at the time of the arraignment? and what if he is insane at the time of trial? No effect? And what about if he is insane at the time of the promulgation? So these are matters to be considered for purposes of the right of the accused. Now, some of the cases regarding this arraignment thing or right to be informed has something to do with the requirement now of the Rules on Criminal Procedure regarding the necessity to include in the information itself the aggravating and/or qualifying circumstances.

In one case, in the case of PEOPLE vs. BAGUIO, he was charged with simple rape, the allegation in the info was thus…

“…that between June 13 and June 20, 2002 the said accused did then and there, unlawfully, feloniously and willfully, have carnal knowledge of mentally retarded AAA by means of force and intimidation three times all committed while the victim was alone inside their house and during nighttime which was taken advantage of to facilitate the commission of the crime”

The trial court convicted him of qualified rape under article 266-B because of the mental disability of the victim. The Supreme Court said that the conviction was invalid because the information did not state that he knew of the mental incapacity or handicap of the victim. What qualifies the offense is the knowledge of the accused of the mental state of the victim to constitute as such under 266-b. Failure in the information to allege that as a manner of the qualifying circumstance do not justify the conviction for qualified rape. This is because this is a violation of the right to be informed of the nature of the charge against him.

However, if the information accuses a person of a crime and eventually after trial the accused is convicted of a lesser offense, if the lesser offense is necessarily included in the offense charged there is no need to amend the information and there is no violation of the right to be informed of the charge against him if that is the case because he was charged of a serious or more

serious, some elements or all or some of elements of which constitute all of the elements of the less serious offense. That is not a violation.

The accused shall also have the right to a speedy, impartial and public trial.

That’s Section 1(h) of Rule 115.

Now, what is meant by the speedy, impartial and public trial.

Speedy trial. The only characterization of this is that the trial is free from vexatious, capricious or oppressive delay. But what is exactly that vexatious, capricious or oppressive delay?

UY vs. ADRIANO (October 27, 2006) where the SC have the occasion to restate the principles based on the constitution as well as in the rules of court involving the length of trial. The accused shall have, shall be entitled to have a speedy and impartial trial, but this is a relative term and necessarily a flexible concept. In determining whether the right of the accused to a speedy trial was violated, the delay should be considered in view of the entirety of the proceedings, mere mathematical reckoning of the time involved would not suffice as the realities of everyday life must be regarded in judicial proceedings which after all, we do not live in a vacuum. Like in Davao City this week, I don’t know how many days in this week did the court hold a trial. Monday, perhaps there were trials. Tuesday, Wednesday and Thursday, there was national convention of clerks of court, so all clerks of court were absent and the Court Administrator Jose Perez was here so all judges should be there to act as welcoming committee or whatever. Today and yesterday we have the MCLE and the deputy court administrator Velches was here so all the judges.... And Dean Quibod was in Mati expecting a trial only to find out that the Judge went to meet the deputy court administrator....They do not exist in a vacuum as well. So you have to understand.

The SC said that as early as 1972, the court has adopted what the court terms as the balancing test, to determine whether a defendant’s right to a speedy trial has been violated. This test is necessary to test the courts to approach speedy trial cases on an ad hoc basis. The conduct of both the prosecution and defendant are weighed based on a four-fold factor:

1. the length of the delay;2. reasons for the delay;3. defendant’s assertion or non assertion of these rights;4. prejudice to the defendant resulting from the delay

So all this have to be determined and balanced. While the accused’ right to a speedy trial is normally emphasized, it doesn’t mean that the prosecution does not have the right to speedy trial as well. But the only difference is the fact that a private complainant’s liberty is not at stake, the private complainant is not in jail, unlike in the accused, even if he is on bail, his right to liberty is at stake so that his guilt if it is to be determined or his innocence must have to be determined in such time consistent with what is free from capricious delay. The reasoning or rationale being that, an innocent person should be free from th e anxiety and the expense of the trial because he is innocent but for the guilty, so that he can take options. Dean Inigo used to ask, which would you prefer? A good judge, a judge who knows his law, knows his procedure, but would render decisions quite after a long time, that’s on one hand. Or

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would you rather have a judge who’s not so good at law, so good at his own procedure, not our procedure but his own, writes decisions which you could hardly understand, but he decides cases with swiftness, though you’re not assured whether you have won or you have lost legally, which would you prefer? Dean Inigo said he would prefer the latter because he could take new options, he could go to the court of appeals immediately and seek for a reversal. Rather than having correctly written one, but for a simple case for sum of money, it would take 10 years. By that time, your money judgment is no longer the money you would want. So better have a decision, which may not have been written properly or legally, at least you have the immediate of option of having it reversed. Ok.

Public trial is based on the rationale that there is this expectation or no incidents of violation of the rights of the accused if the trial is held public contrary to if it were to be held in private. So the publicity of the trial makes the proceedings open and therefore there is less opportunity or chance that the rights of the accused will be violated. Of course the concept of the public trial is to make it open to the public _ it does not require that everybody should be there. In fact, the rules now allows certain procedure which the accused may, the proceedings may be taken without the public’s participation. As a matter of fact, in criminal procedures, there’s a provision there which entitles the accused to exclude everybody or the public for no _ reason that the accused do not want it. Well, in ordinary cases where the testimony of the victim is of such character as would make it embarrassing for her, the nature of the testimony may compel the court to grant the request to exclude the public.

Also if a witness is a child, there are procedures now to be followed to protect the child when he or she testifies in court because of the inherent stressful situation that may be traumatic for the child witness, he or she _ testify as an ordinary witness. Now this special arrangement or rules, would not make the trial not public and therefore violating the right to public trial because of the special circumstance which the law allows for the trial to be closed to the public.

And the right to an impartial trial, this is part of the general requirement of due process that the judge must not only be impartial but must also appear to be. However, this is subject to the rules on voluntary inhibition and compulsory disqualification under the rules. There are just cases where the judges must have to inhibit himself or must have to disqualify himself from hearing the case. Inhibit is mostly based on perceived bias, this is not a mandatory rule but it is to call upon the sense of fairness on the part of the judge to inhibit himself voluntarily, unlike in _ disqualification, these are all mandatory by reason of relationship and/or prior or previous interest which the judge cannot refuse because these are compulsory grounds.

The accused shall also have the right to meet the witnesses face to face.

In Rule 115 section 1(f) to confront and cross-examine the witnesses against him at the trial. This is to ensure that the accused shall have the opportunity to cross-examine the witnesses. However, in the rules of court, this has been expanded a little bit to do away with actual confrontation. Either party may utilize as part of its evidence the testimony of a

witness who is deceased, out of or cannot with due diligence be found in the Philippines, unavailable, or otherwise unable to testify, given in another case or proceeding, judicial or administrative, involving the same parties and subject matter, the adverse party having the opportunity to cross-examine him. So if this is what the situation is, all you have to do is to file a motion in court, where the previous testimony is to be admitted or to be submitted and you have to _ actually certified copy or ask for stenographic notes. This is to do away with actual open court testimony. The only requirement would be, it involve the same parties. Perhaps, the most common example would be, you have filed a case against a public officer, there is a requisite case before the office of the ombudsman, a criminal case is then filed in court, and the office of the ombudsman conducted his investigation on the administrative aspect, we have trial witnesses. The testimony of those witnesses taken with the ombudsman can be admitted in court, if you were to present all of these witnesses again. But the important requirement in the rule is that the other party must have the opportunity to cross-examine. Again, opportunity was there not that actual cross-examination was done.

Then the right to have compulsory process to secure the attendance of witnesses for the production of evidence. Now, this is section 1(g) of rule 115. This compulsory process which is now covered by section 10 of Rule 21 on subpoenas is based on the 100-km rule. Before, it was 50-km radius, now it has been changed to 100 km in the ordinary course of travel. So if the witness is residing within the 100 km of the place where he is sought to testify, he can exercise what we know as viatory right. Viatory right of a witness refers to the right of a witness to refuse a subpoena because of valid reasons like, he resides more than 100 kilometers, in the case of production of documents as well as to be covered by the subpoena ad testificandum, if there is no expense. While the accused seemingly has the right to secure the attendance of witnesses, the rule on subpoena in rule 21 also requires the person requesting for the issuance of a subpoena to necessarily make payments for expenses. So while you may have been issued a subpoena, you may have been covered within the 100-km rule, but if no expenses were paid, you can still refuse. Of course, if you were a government official or employee, that would never be an excuse because you will be traveling under government expense. The right on the production of evidence is also covered by the rule on expenses. While you can request for issuance and the persons to testify in court under subpoena duces tecum, ad testificandum if no amount for expenses has been advanced for the production expense, you cannot compel the production of those documents. So that would be the extent of the rights of the accused both under Section 14 and Rule 115.

The last part of Section 14 paragraph 2 would be the so-called trial in absentia. Trial in absentia would only require 3 conditions for it.

1. There is valid arraignment;2. There is a valid notice to the accused;3. The absence of the accused is unjustifiable.

There has always been a question on whether when should trial in absentia be had? Assuming there is a prior arraignment, assuming there is a valid notice given. If the hearing in court is today, the accused is absent today. Can we proceed to receive evidence on trial in absentia today? Some would say yes, some would say no because trial in absentia means that the absence of the accused necessarily prolongs the proceedings. Meaning, before trial in

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absentia could be had, there must have to be proof shown that the accused is not willing to participate. Meaning, he continues to absent himself despite due notice because the absent for one hearing does not make a conclusion that the accused in unwilling to participate and be present during trial whenever that he has the right to be present and defend himself by person or through counsel in all stages of the proceedings from arraignment to promulgation. So just because he is absent today does not mean that trial in absentia should proceed. Trial in absentia has been incorporated constitutionally that is, as well, in order to protect the right or rights of the private complainants because before, if the presence of the accused was a condition precedent for proceedings to be valid, then the private prosecution’s right to be protected to ensure that justice is done will be held hostage, so to speak, by the accused by being absent. In order to avoid the situation, then if the accused has shown that he is not willing to participate provided there has been a valid arraignment and a valid notice to him, then trial in absentia could proceed.

Some judges would not grant trial in absentia because of a solitary absence, it must have to be “prolonged”, a showing that the accused would no longer want to participate in the proceedings. So assuming there is trial in absentia, some questions have been asked regarding some of rights of the accused. Going back to the _ of section 14 paragraph 2, what happens to this presumption of innocence right, well, it’s not affected. He is still presumed innocent. The burden of proof is still with the prosecution, to prove his guilt beyond reasonable doubt despite trial in absentia. What about his right to be heard in person? Of course that is lost. What about his right to be represented by a counsel that is never lost. It is never a reason for his lawyer not to participate simply because the accused was no longer there. It could not be used as a convenient excuse not to cross-examine prosecution witnesses simply because his accused’ life is not there because even if he is not paid he should not delay any man for money. Well, easier said. The right to have a speedy, impartial and public trial, these are not lost. Even if its trial in absentia, that does not mean that the prosecution has all the time in the world to present their evidence. They must have to present it within a reasonable time consistent with what is required under the circumstances, again not a hard and fast rule but would not be justified, would never justify, any delay on the part of the prosecution. Do not say “ah we will not submit evidence anyway this is a trial in absentia... we shall hold this trial in private, anyway, nobody is listening, the accused is not even here, he is not interested.” That could never be done because that is _. Perhaps some of the rights after trial. Promulgation. Can there be promulgations in absentia? There could be. What if the accused is convicted, would he have the right to appeal thereafter? If it is a judgment of conviction in absentia, after trial in absentia. Could he appeal thereafter? Yes, if he surrenders within the 15 day period, but if he is still at large after the 15 day period that means that he may have to lose all his rights.

PRIVILEGE AGAINST SELF-INCRIMINATION

Ok. Privilege against self-incrimination. The only discussion here is this is always discussed in relation to rights under investigation under Section 12. This is because self-incrimination is part of the so-called human rights, on the right to remain silent or not will it will incriminate itself. The discussion is had because of the cross reference to the Miranda rights on the duty of the investigator to inform whether there the excess of duty on the part of the person asking the question under Section 17. Section 17 is stated as “No person shall be compelled to be a witness against himself.” So if a person is asked an incriminating question, is there an obligation on the part of the person asking the question to inform the accused thereof. Also, with respect to when the right is claimable, in Section 12, it is specific that it is only claimable when a person is in investigated for the commission of an offense or in relation to an offense for a crime being investigated.

Section 17 is applicable to any proceeding and it is claimable by any person against whom the incriminating question is asked. So the only difference, aah the other difference is that in Section 17, the plea must have to be made before the question is asked. Unlike in Section 12, even if there is an admission but if the admission so sought to be produced thereafter has been taken by the protection under Section 12 and under Republic Act No. 7438, the admission will not be admissible if so objected to. We mentioned that in the case of Section 17, while a question may not be answered because it is incriminating but if the privilege is not

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claim by failing to object or by voluntarily answering the question, then the privilege is deemed waived. You can never argue with that.

The coverage of the privilege however is largely ordinarily limited to reduce sophistical or moral concoctions to extort oral communications. That’s the traditional and general concepts. So for so long as there is no oral communication amounting to an incriminating answer is given, then the privilege is not applicable or claimable. So medical examinations even in courts may not have to be covered. However, because of jurisprudence someone have or some cases would have had included what is referred to generally as verbal actions. Actions though they are not coupled with words or oral testimony but because the action require the use of mental active words they may be considered as covered with the privilege, if it amounts to an incriminating evidence. Aah, one example given is that signature in the receipt during the search conducted by reason of a valid warrantless or warrantless search. Under Rule 126, there is supposed to be a receipt issued for the items or things taken. Now, in some cases this receipt would have been served upon the person from whom the properties were taken and the signatures are supposed to have been or the person who is supposed to affix his signature therein. That is considered as incriminating evidence if there is no assistance of counsel as stated under Section 12(4) if the person would claim this privilege not to have sign it but still he was made to sign it forcibly, then that may be considered as inadmissible evidence.

The other would be reenactment. While in reenacting the commission of an offense, it does not involve any oral testimony but because it requires the use of mental faculty, it may be considered under the concept of verbal actions. The most common is handwriting. If say, the crime under consideration is one for Falsification. Is there a crime of Forgery if it is by handwriting? Can you forge a signature? Is there a felony of forging a signature? It’s Falsification. Article 172 in relation to Article 171 (RPC) made by private individual. You forge a note. You don’t forge a signature. The falsification there is that you made it appear that the person executed a document when in truth and in fact he did not. So you falsified the act. In Falsification, if you are made to copy a handwriting or signature, is that incriminating? No verbal or oral testimony compelled. But you were forced. In __ of thought the first is that it is a purely mechanical act. The second is or the more acceptable one is that it is covered. Because the basis actually of the concept of protection against incrimination is that the evidence which should convict an accused should not come from his very own confession or from his very mouth. But that is little in defect because in falsification although it is not taken from your mouth but from your hand making you made or copy the signature, that will still provide for the missing evidence to prove your guilt in the prosecution.

In the case of Sabio vs. Court of Appeals, Supreme Court said that the right against self-incrimination or the privilege against self-incrimination must have or can only be claimed in any proceedings except criminal cases against the accused only when the incriminating question is being asked. Since there is no way of knowing in advance the nature or effect of the question to be asked of the accused.

So, when is a question considered to be incriminating? The traditional concept is that it means that the person is subjected to a penal liability. But because of the applicability of the concept now to any proceeding, to any person against whom a question is asked, it necessarily covers questions or answers to questions, or questions the nature of which will subject the person to any liability. Not exactly limited to penal liability. So if a person is say ask in the administrative hearing before a company level whether or not he committed the particular act which constitutes a violation of public policy. Can that person be allowed to seek refuge from or exemption from being made to ask or answer the question from the privilege? It may if it amounts to any liability. Again, the traditional concept is that it’s limited to criminal liability. But because the applicability now is in any proceeding, to any witness against whom the question is ask, then if the answer to that question subjects him to any liability, the privilege will be claimed. Of course, if the question is harmless, or the answer to the question is harmless or will not subject him to any liability, then there is no applicability of the privilege.

The other matter with respect to self-incrimination would be the immunities available, transactional and use immunity, you know all these concepts, there’s nothing new in them. By the way, the requirement to subject a person to the DNA testing, is that covered by the privilege? Say, the accused is subjected to DNA testing. What does DNA means? (Sir is asking! Remember our Legal Med symposium, classmates? Sunggo!) Is it part of the privilege? The answer is not because again, it does not amount to any oral, compelled, compulsory oral testimony. However, if it pertains to the right to privacy the discussion would be different because there is some consideration with respect to privacy rights other than the privilege against self-incrimination.

RIGHT TO SPEEDY DISPOSITION OF CASES

This has been taken to mean similar to the concept of right to speedy trial. In the case of Ombudsman vs. Jurado, the Supreme Court said that the right to speedy disposition of cases is like the right to speedy trial. It is deemed violated only when the proceedings are attended by vexatious, capricious or offensive delays. Those words or terms are not capable of fixed definition but merely by characterization.

What are considered similar to right to speedy trial would be the following guidelines:

1. The length of the delay2. The reasons for the delay3. The assertion or opinion to assert such right, and4. The prejudice cause by the delay

What’s the difference then? The difference actually is based largely on when the right is claimable. Right to speedy trial is claimable during the entire period where trial is called to be conducted or supposed to be conducted. While the right to speedy disposition of cases refers to the right when the case is submitted for disposition or resolution after the time the judgment of the resolution is rendered.

Now based on the Constitution, judgments of the lower courts must have to be had within 90 days. Judgments of the lower collegiate courts must have to be had in 24 months. While judgments of the

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Supreme Court shall be had in 12 months except in petitions for questioning the sufficiency of the factual basis for the declaration of Martial Law, suspension of the privilege of the Writ of Habeas Corpus which must have to be issued or promulgated within 30 days after the filing of the petition. In special cases involving decisions of the Constitutional Commissions, there is a period of 60 days.

What about resolutions of the Investigating Prosecutor? How long, should the investigating prosecutor be had under the Rules in the Prosecutor’s Office for finding probable cause in relation to Rule 112 of the Rules on Criminal Procedure. How long should they resolve cases or in Republic Act No. 6775 under the Office of the Ombudsman including the implementing rules and regulations, how long should the Office of the Ombudsman resolve cases to find probable cause or in administrative cases filed and submitted to them for decision? These are the periods for consideration. If there is an undue delay in the rendition of the decision, judgment or resolution required of them, from the time they are submitted for such ruling up to the time the decisions are rendered, they may be held accountable by reason of the violation of the right to speedy disposition of cases.

Now, if you remember in the discussion on the period to decide cases under Article 8, Section 15 the result or the effect of the failure to decide on such periods will not affect the validity of the decision. The adverse effect only will be on the possible administrative liability of those tasks to render the decision or judgment and they have rendered it outside of the given periods. As to the validity of the decision, the periods are directory. As to the liability of those persons who are tasks to render the decisions, the provisions are mandatory.

So what would be the effect then if there is a violation of the right to speedy disposition of cases? There is difference when it comes to decisions on the merits and decisions on investigation. A rundown of the rulings on this matter would tell you that if the failure to decide, its failure to decide after full evidence has been presented by both parties, in a trial on the merits there is no adverse effect on the decision. The accused cannot be acquitted based on that violation alone.

So for example in a criminal case, the prosecution presented all its evidence, the defense also presented all its evidence; both parties submitted their case for decision. The judge failed to resolve it within the 90-day period. Assuming that there’s a violation of the “right to speedy disposition of cases”, would it mean that the accused would be acquitted? The answer is No. But if the issue at hand involves merely finding probable cause to file the criminal complaint or information thereafter and there is a violation of the right to speedy disposition of cases, then it may mean the dismissal of the case. Not the acquittal because there is no trial on the merits yet. But the State is deemed to have lost its right to prosecute that respondent in a subsequent criminal case intended to be filed because there’s a violation of the right to speedy disposition of cases.

The question is what’s so difficult about finding a well and gendered belief that there is necessity to hold respondent for trial. This is not a trial yet but only to find probable cause. Now if the failure to find probable cause on the part of the investigating officer is attended by capricious, oppressive delay that is

characteristic of a violation of the right. Then it will mean that the case must be dismissed and the prosecution can no longer be allowed. In that case, the respondent will never be found guilty thereof.

SUBSTANTIVE RIGHT UNDER DUE PROCESS

Section 18 merely relates on aspirations, debts of civil obligations under Section 20. Ok. Acts which is drawn therein is ex post facto law.

EX POST FACTO LAW AND BILL OF ATTAINDER

This ex post facto law is usually discussed in relation to bill of attainder. Section 22 provides that “No ex post facto law or bill of attainder shall be enacted.” Question is, Have you come across of bill of attainder or a law which is considered a bill of attainder? Probably you would never have. We have not yet come across because there is no existing law yet which the Supreme Court has ruled to be a bill of attainder. This is mainly a discussion on what ex post facto law is and what a bill of attainder is.

In the case of People vs. Casta, a September 16, 2008 ruling, the Supreme Court made mentioned that as an example for ex post facto. The Information was one for murder committed by the appellant sometime on August 20, 1999 which was before the effectivity of the death penalty law, Republic Act No. 7659, which raised the penalty of reclusion perpetua to death. The applicable penalty prior to the amendment was reclusion temporal in its maximum period to death. When the conviction was had, the trial court imposed the penalty of reclusion perpetua. So the Supreme Court took notice of the error in the imposition of the penalty and said that in the light of the greater penalty that attaches after the amendment, the previous penalty of reclusion temporal in its maximum period to death will have to be imposed in order not to run afoul on the constitutional prohibition against ex post facto law.

An ex post facto law, among others, is one that changes the penalty and inflicts a greater punishment than what the law annexed to the crime when committed. The situation that was obtained on the amendment under RA No. 7659 would be applied. So in this particular case, the applicable penalty when the crime was committed was still reclusion temporal maximum to death. In the interim, the death penalty law real position took effect. When the accused was convicted by the trial court, the trial court imposed the penalty based on the amendment which is reclusion perpetua

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to death. The Supreme Court changed the penalty applying the whole penalty of reclusion temporal maximum to death because it will constitute as ex post facto legislation.

The case of Salvador vs. Mapa lists down what constitutes ex post facto legislation. Actually this is just a restatement of what has been in the case included in your outline, In re: Kay Villegas Kami.

The Supreme Court said that there are six (6) instances of ex post facto legislation :

1. One which makes an action done before the passing of the law and which was innocent when done criminal and punishes such action.

2. One which aggravates a crime and makes it greater than it was when committed.

3. One which changes the punishment and inflicts a greater punishment than the law annexed to the crime when it was committed.

4. One which alters the legal rules of evidence and receive less or different testimony than the law required at the time of the commission of the offense in order to convict the defendant. The common example given here is the Law on Rehab. This law requires two witnesses under the two-witness rule. So at the time it was committed, the two-witness rule provision still applies but later on after a legislation amending this, it requires less. One witness can now be sufficient to convict a person and applied to that that will be considered as ex post facto.

5. It assumes to regulate civil rights and remedies but in effect imposes a penalty.

6. It 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.

But in formal situation are two general characteristics. One, it must be a penal law. Second, it must have to be applied retroactively.

Because if any of these six may be vested but it does not pertain to any penal law. Meaning a law which defines an act as a crime and provides for penalty therefore, then it is not considered as ex post facto. Moreover, it requires that its applicability is retroactive. Because if the applicability is prospective, for example in the previous case death penalty being imposed for murder can apply prospectively, it is not ex post facto. What is sought to be protected is the person of the accused must have to be protected from the adverse effects of an amendatory law which is criminal in character. If applied to him and its applicability would be beneficial to him then it is not ex post facto. But if it would be prejudicial to him, then it will be ex post facto.

Bill of attainder on the other hand is considered one because it is a judicial characteristic, determination of guilt by judicial trial. And it has ex post facto characteristic because it is applied retroactively as well. It is penal in character and it is applied retroactively.

By the way, in the case of Salvador vs. Mapa the question here was whether Administrative Order No. 13 and Memorandum Order No. 61 issued by then President Ramos, creating a committee to investigate the grant of Behest Loans. (Behest loans are loans granted by government banks or GOCC at the behest, command, or urging by previous government officials to the disadvantage of the Philippine government.) Are these orders considered as ex post facto law? Supreme Court said No. They are not penal in character to begin with. They are just administrative orders to create a committee to investigate grants of Behest Loans and Memorandum Order No. 61 was just to expand the functions and powers of the committee. Nothing more. It does not provide for any trial, it does not provide for the imposition of penalties, so it is not ex post facto in character.

EXCESSIVE FINES

What punishments cannot be imposed? Involuntary servitude, the excessive fines. What makes a fine excessive? Section 19 (1) provides excessive fines shall not be imposed. The excessiveness of a fine is measured not by the amount of the fine imposed but whether or not the amount is so disproportionate to the offense committed as to shock supposedly the moral sense of all reasonable men as to what is right or what is wrong. So this is a subjective consideration. But this is tested against the intent or the policy of the legislation defining an act as criminal and providing for the penalty of fine imposition. Imposition of fines can never be cruel or unusual because it is an accepted form of penalty. But then as to whether the fine is excessive should be dependent not only on the amount but also whether or not it is always proportionate and this factor we believe is the intent of the policy or legislation.

CRUEL PENALTY

Nor shall cruel penalty be imposed. What is cruel or unusual? In the case of People vs. Ferrer, this involves malversation committed by a government employee. The malversed amount or shortage is more than P72, 000.00. The penalty imposed upon conviction was 10 years and 1 day to 14 years and 8 months. The accused-appellant petitioner contended that this is cruel and unusual. Supreme Court said what constitutes cruel and unusual punishment has not been exactly defined. The 8 th amendment of the US Constitution, the source of Section 19, Article 3 of the Bill of Rights of our own Constitution has yet to be put to test to finally determined what constitutes cruel and inhuman. The cases that the Supreme Court has decided on the matter were more on description rather than tradition on what is meant by cruel and unusual. The clause in the US Constitution in the opinion of many commentators may be therefore progressive and is not fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by the humane justice. In one case quoted here, it has been opined that difficulty would attend the effort to define the exactness of the extent of the constitutional provision which provides that cruel and unusual punishment shall not be inflicted. But it is safe to affirm that punishment of torture and all others in the same light of unnecessary cruelty are forbidden by that amendment.

Death as a punishment is acceptable. But the manner by which it is to be executed may what may be considered as cruel and unusual. It implies something more inhuman and barbarous, something more than the mere extinguishment of the body. So it is more on

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the manner rather than the nature. If the nature is accepted in the society. Death. What else? Imprisonment. But the manner by which is imprisonment is carried out or death as a penalty is carried out, may be question as cruel or unusual because it is not reasonably acceptable in the humane or modern society.

PROTECTION AGAINST DOUBLE JEOPARDY

This double jeopardy protection, the Constitution says “No person shall be twice put in jeopardy for punishment of the same offense.” If an act is punished by law or an ordinance, conviction or acquittal of either shall constitute a bar to another prosecution for the same act.

Section 21, Article 3 of the Constitution therefore speaks of two kinds of double jeopardy protection. The first is on what is generally referred to as same offense rule and the second refers to the same act rule. Meaning if an act is defined as such and penalized in the concept of a statute and the other in the concept of an ordinance, then the law would consider that conviction, acquittal or dismissal in one constitute a bar or constitute jeopardy on the other. So the State has to choose whether to proceed against the person of the accused under the statute or under the ordinance.

The Rules of Court provision however with respect to double jeopardy under Rule 117, Section 7 speaks primarily of the first kind. Meaning the first offense rule. Section 7 states “whether an accused has been convicted or acquitted or the case against him has been dismissed or otherwise terminated without his express consent by a court of competent jurisdiction upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction, and after the accused had pleaded to the charge, the conviction or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution for the offense charged or for any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information.”

So, the first question normally asked is what are the elements of double jeopardy? In most cases, what we noticed is that they discussed the element of when would jeopardy attached? But properly asked, what are the elements of double jeopardy? There are simply two.

Elements of double jeopardy:1. The first jeopardy must have attached.2. The second jeopardy must be for the same offense.

So, the next question is when would the first jeopardy attached? Then, this is known to discussion perhaps. There is a valid complaint or information in a court of competent jurisdiction where the information is sufficient in form and substance to sustain a conviction, the accused must have to be validly arraign, he must have entered his plea and that the accused have been convicted, acquitted or the case dismissed without his express conformity. That is where the first jeopardy attached. Now, if he is

charge and he would for the same offense, then the second or double jeopardy protection applies.

So, when it is considered that one or he is charge of the same offense? Your rules would practically tell you that the same offense rule applies to one, literally the same offense. The same charge. Second, it is an attempt to commit the first charge. Or it is a frustration of the first charge. Or the second charge is necessarily included in the first charge. Or the second charge necessarily includes the first. This happens when some of the elements of the first constitute the element of the second. Say, murder and homicide. If the first charge is murder and the second charge is homicide, some of the elements of murder constitute the elements of homicide. Or the reverse. The first charge is homicide and the second charge is murder, all of the elements of the first constitute some of the elements of the second. So the first is necessarily be included in the second. The third is, also based on rule if there is a valid plea of guilt to a lesser offense. As you understand or remember, the plea of guilt to a lesser offense now has been limited. Well, as in the former rule it must have to be consented to by the private offended party. But what is new in the rule now or the amendment is that the lesser offense now must have to be necessarily included in the offense charge. It was not there before. Or you can plea or enter a plea of guilty for any lower offense regardless of whether or not such lower offense is necessarily included in the offense charge. But now it is necessarily included. Otherwise the plea of guilty for other offense is not bound. So any of those situations are covered by the concept of same offense. So if the second charge falls under the category of same offense provided the first jeopardy had attached, then you can now be invoked the protection of double jeopardy.

The usual situation asked in double jeopardy protection is there are two pending cases. In Civil Law, in civil cases; in Civil Procedure, one of the grounds for a motion to dismiss under Rule 16 would be if there is a pending action or litis pendencia. Is that applicable as a ground to quash an Information in criminal cases? What’s the rule for quashal in Criminal Procedure? (Sir is asking! He also answered Rule 116 but the grounds are actually found under Rule 117. Rule 116 talks about arraignment and plea.) Now, is it a valid ground to quash an information? No, it’s not. There is no such a thing. For example, you have been charge in Information 1 for PDA. There’s another Information 2, also for PDA. Can you seek the quashal or the dismissal of Information 2 on the ground that there are two pending cases? The answer is No because there is no such thing as litis pendencia in criminal cases. It is not one of the grounds to quash the Information. So, what you have to do is try the other one and have it logically ended and plea the ending of that one Information case as a bar to the prosecution of the other. Anyway, your right to be protected or to secure liberty whatever will not be more prejudiced simply because there are two cases pending.

You may have come across certain cases that Supreme Court may have ruled yes you can seek dismissal under double jeopardy protection. But try to be strict about the basis when can you claim double jeopardy protection. The first jeopardy must have attached and the last condition for the first jeopardy to attach is that, the accused must have to be convicted, acquitted or case dismissed without his express conformity. This express conformity is accepted with two exceptions.

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A. The first is when the accused asked for dismissal based on a violation of the right to a speedy trial. If the court grants it, it amounts to an acquittal.

B. The second is when the accused files a demurrer to evidence and the demurrer is granted, it amounts to an acquittal as well.

Two situations where the accused asked of the dismissal so the dismissal is with this concept is for obvious reasons yet the dismissal amounts to an acquittal therefore the jeopardy had attached. If he is charge anew for the same offense which is covered under six situations, he can claim double jeopardy protection.

Several cases speak of Castro vs. People. The MTC found the accused guilty of grave oral defamation. The Regional Trial Court on appeal however acquitted him on the ground of prescription because the RTC found him guilty of slight oral defamation and because it was while more than five (5) months after discovery, the crime had already prescribed. So he was acquitted. The private complainant Solicitor General filed a petition before the Court of Appeals. The Court of Appeals reversed the RTC decision and reinstated the decision of the MTC. The question before the Supreme Court now is whether or not there was double jeopardy violation. Supreme Court said yes because an acquittal amounts to the first jeopardy already attached. So when he was convicted in the MTC for the crime charge and the RTC dismissed the case and acquitted him on the ground of prescription that should end everything. The State could no longer seek a further review with the CA because that would violate double jeopardy protection.

The only instance where the acquittal may be subjected to further review or scrutiny is when there is a violation of the so-called right to due process on the part of the State.

In this case of People vs. Sandiganbayan, the Sandiganbayan granted the accused the demurrer to evidence. The State went up to the Supreme Court. One of the issues laid is that whether or not the grant of the demurrer to evidence is in grave abuse of discretion. If not, obviously there would be violation of double jeopardy. If not then it will be re-tried. The Supreme Court said that in this case there was grave abuse of discretion because the Sandiganbayan issued an order in violation of its own directive. The Sandiganbayan earlier denied the motion for him to file demurrer to evidence. We all know in Criminal Procedure, within five days from the time the prosecution rest; the defense may ask to file demurrer to evidence. If so granted, the court may grant an unextendible period of 10 days within which to file the demurrer of evidence. The Sandiganbayan initially denied the motion yet it granted and admitted the demurrer to evidence filed and thereafter granted the demurrer to evidence. If that is the case, then there is grave abuse of discretion. The Supreme Court said that the grant of the demurrer is with grave abuse of discretion and therefore they have to revert back the case to the Sandiganbayan.

Further, also in the case of Castro, Supreme Court said that if there’s an acquittal, it cannot be appealed as it is final on the ground of double jeopardy. The only exception is when there is grave abuse of discretion or when there is a mistrial. Because there is a violation of the right to due process on the part of the

State or the private offended party for which double jeopardy will not be claim.

The rules also provide for instances by which double jeopardy could not be claim as exception.

A) One, the graver offense developed due to supervening facts arising from the same act or omission constituting the former charge.

B) Second, the facts constituting the graver charge be made known or were discovered only after the plea presented in the former complaint or information.

C) Third, a plea of guilty to a lesser offense was made without the consent of the prosecutor and of the offended parties provided in Section 1(f) of Rule 116. Meaning, an invalid plea of guilt was entered.

This exception, exceptions to letter A and letter B were based on two cases. The first is the case of Melo vs. People. The facts were as follows: The accused was charged for frustrated homicide and he pleaded guilty on the day of the arraignment, December 29 at 8am. At 10am, the victim died. So subsequently an amended Information was filed for consummated homicide. Question is, Can the accused moved to quash the Information on the ground of double jeopardy? Supreme Court said No because as an exception, the graver offense developed due to a supervening fact. So when he entered the plea for frustrated, the death of the victim came later so that’s a supervening fact.

However, in the case of People vs. Yorac the victim was initially diagnosed for injuries which constitute slight physical injuries only. So when the accused was arraigned, he entered a plea accordingly for the charge of slight physical injuries. For the same incident, the victim underwent a more severe. No, not severe, a thorough examination and it was found out that he was suffering contusions with lacerated wounds and cerebral contusions for which an Information for frustrated murder was subsequently filed. Same incident. Same mauling incident. So the question there is, Is this a supervening fact? Supreme Court said No, it is not a supervening fact. The injuries were there when the first Information was filed. Only that it was discovered later so it will not fall under letter A. For which the correct situation, letter B was had, the facts constituting the graver charge were made known or were discovered after. So while not a supervening fact but because of perhaps a reasonable excuse, the graver offense or facts constituting graver offense were not discovered as yet when the case was filed. So it can still be considered as an exception.

WRIT OF HABEAS CORPUS

Ok, two more items. Writ of Habeas Corpus. The writ is directed to any person detaining another to produce the body of the person detained and to show cause why such person should not be released. One newer case is the case of Veluz vs. Villanueva involving the custody of … How old is this woman? A 94-year old widow. And the adopted children and some nephews and nieces were fighting over her custody. Perhaps this 94-year old woman has lots of money. Otherwise, they would really prefer her to die. So a petition for habeas corpus was filed. The Supreme Court denied it but discusses the concept of habeas corpus or restate it. The writ of habeas corpus extends to all cases of illegal confinement or detention by which any person is denied the right to

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his liberty or by which the custody of a person is being withheld from the one entitled to it. So, if you are unlawfully detained or the custody is unlawfully withheld from the person from whom the custody is supposed to be granted.

If there is a custody fight between the husband and the wife, can the writ of habeas corpus be filed against the husband for the custody of the minor children? Ok. A petition can be filed. But can the writ be granted? File lang gud. (Jeje!) But can the writ be granted? Yes, there’s a special rule on that. What is that? Ok. A decision will have when one is deprived. It contemplates two situations or two instances. One, deprivation of the person’s liberty either through illegal confinement or through detention and two, withholding the custody of any person from someone entitled to such custody. In habeas corpus, the restraint of liberty must be in the nature of an illegal and involuntary deprivation of rhythm of action. So, if there is a petition, the court or judge must personally inquire as to whether the petitioner is being retrained of his liberty. If he is not, the writ shall be repealed. Inquiry to the cause of detention may proceed only where such restraint exist. If the alleged cause is thereafter found to be unlawful then the writ should be granted. While habeas corpus is a writ of right, it will not issue as manner of course or as a mere perfunctory operation for the filing of the petition. Judicial discussion in this instance must be clear to the judge to whom the petition is presented at. Prima facie the petition must be intended on the merit. It is only when the court is satisfied that the person is being unlawfully restrained that the petition is granted. So, if there is no showing that the person is restrained or deprived of liberty, then there is no need for the court to proceed. If there is initial showing that this liberty is restrained or liberty is affected, then the court should proceed to determine what is the cause of the restraint or the effect of the restraint. If the court finds out that there is no legal cause or unlawful cause for the restraint like in this case, then the petition is granted. It is not a perfunctory obligation that once the petition is filed then it shall be granted.

WRIT OF AMPARO AND WRIT OF HABEAS DATA

The final writs in your outline will be the writ of amparo and writ of habeas data. There are three cases with respect to the writ of amparo. Aah well, this is special. This writ of amparo is special to me. This is the first question in my bar exam in 1991. Constitutional Law question no. 1 in the morning of the first Sunday, What is the writ of amparo? For all you have studied, you have make yourself believe. You have that sense of … How do you call it? Sense of belief. Believe in yourself that there is nothing that you have not read. There is nothing that they would asked that you don’t know. Whatever they would ask, you do know. And then you are ask in the bar, what is the writ of amparo? Naa ba gyud diay? Hahaha! Naa gyud silay nahibal-an nga wala ka kabalo. Then you look at the ceiling just like most of you are doing. Then you look at the side and everybody was looking at the ceiling. Jeje. So, you go to question no. 2. And then go back when there is still time to answer question no. 1.

In any case, the writ of amparo based on rules is remedy available to any person whose right to life, liberty and security are violated or threatened with violation by again the unlawful act or omission of the public official or employee or of a private individual or entity. In the Philippines, this was a reaction. Well,

amparo means literally “protection” based on the Mexican origin, in the Mexican constitution. But in the Philippines, the settling or the factual settling should be based on the need to limit the extrajudicial killings and forced disappearances and threats to life, liberty and security. There are three cases that you can read. One is the case of Tapuz vs. Del Rosario, case of Canlas vs. Napico and the case of Secretary of Defense vs. Manalo.

This Secretary of Defense vs. Manalo is where the writ of amparo was granted. And the two other cases it has not been because this refers to private rights. In the case of Canlas, this involves threatened demolition of a house by virtue of a final judgment of the court. And then they asked for the writ of amparo because they sought protection to life, liberty and security. Literally, kung mawala yung bahay nila, threatened yung kanilang mga buhay. Something like that. Or in the case of Tapuz vs. Del Rosario the same thing. The case went all the way and then there is a special order of demolition to demolish their houses and then thereafter they filed a petition for writ of amparo, among others, a petition for certiorari, a petition for a writ of amparo, a petition for habeas data. But what you can get in the case of Tapuz vs. Del Rosario is that the writ of amparo or the writ of habeas data is just like any writs issued as a preliminary remedy. Provisional remedies in civil cases where it can be… like a provisional remedy, it can be an action by itself or taken as a provisional remedy it can be attached or appended to a main action whether at the start or while the action is pending, it can be had. While it has not been granted by the court in the case of Tapuz, it simply reiterated that just like any other writs it can be an action by itself. Petition for writ of amparo by itself. Or in cases of pending civil or criminal action where you think that there is a violation to your right to life, liberty or security, you can apply “provisional remedy”. That’s the only principle probably that you can take in the case of Tapuz.

In the case of Secretary of Defense vs. Manalo, that is an extensive discussion on the origin, the nature and importantly the obligation on the part of the respondents. As you have read the rules or I assumed you have, there is a necessity to make a return and the rules require specific information which should be included in the return. And the return among others must include several obligations on the part of the respondents. And importantly, what must have to be included there are the following: That they must have to inform the court what actions they have taken or will undertake in relation to the acts complained of. For example, there is a petition for a writ of amparo because of a forced or unexplained disappearance. And then, the usual thinking then was if you file a petition for the writ of habeas corpus; they will just say we cannot or that person is not in our custody. We have not taken that person in our custody. That’s the end of it. Amparo seeks further. If he is not there, then where is he? What actions have you taken or will undertake to determine the whereabouts of that person. So in the return for a petition for a writ of amparo, the respondent must have to include that. What actions do they have taken before we undertake to investigate to determine the whereabouts of that person? They cannot just say I’d like to refer to the former writ of habeas corpus just by saying he was not taken by us or he has not been to any of our military camps or custody, so the petition is return. Just like that. The amparo, it requires further affirmative action. It really would require them to do something about the question under investigation.

That takes care of everything. Goodluck!

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