Principe, Audey G.
JD 1
ABC School of Law
FINAL EXAMINATION IN POLITICAL LAW
January 16, 2021
1. Section 21 defines the procedure to be followed by the
apprehending officers to ensure the integrity of the seized dangerous drugs and
drug paraphernalia. State in your own understanding the procedure to be
followed and the consequence of not following the said procedure.
Section 21, Article II of RA 9165, the applicable law at
the time of the commission of the alleged crimes, lays down the procedure that
police operatives must follow to maintain the integrity of the confiscated
drugs used as evidence. The provision requires that: (1) the seized items be inventoried and
photographed immediately after seizure or confiscation; and
(2) the physical inventory and
photographing must be done in the presence of (a) the accused or his/her representative or
counsel, (b) an
elected public official, (c) a representative from the media, and (d) a representative from the Department of
Justice (DOJ), all of whom shall be required to sign the copies of the
inventory and be given a copy thereof. It further requires the
apprehending team to conduct a physical inventory of the seized items and the
photographing of the same immediately after seizure and confiscation. The said inventory
must be done in the presence of the aforementioned required witness, all of
whom shall be required to sign the copies of the inventory and be given a copy
thereof. The phrase "immediately after seizure and confiscation"
means that the physical inventory and photographing of the drugs were intended
by the law to be made immediately
after, or at the place of apprehension. In some Jurisprudence decided by the
Supreme Court, not following this procedure will make the apprehension void and
unconstitutional.
2. On July 7, 2008, 12 pastors and
preachers from various churches filed a joint complaint-affidavit against
the officers and publishers of seven men's magazines and tabloids. The
complainants alleged that sometime during the period of September 2007 to July
2008, the identified magazines and tabloids, which were printed, published,
distributed, circulated, and/or sold in the City of Manila, contained material
which were "clearly scandalous, obscene, and pornographic within the
meaning and in violation of Articles 200 and 201 of the Revised Penal Code and
Ordinance No. 7780 of the City of Manila.
Questions
(A) The respondents claim
that they cannot be charged under Article 200/201 and under the Manila
Ordinance because they can be subjected to double jeopardy. Is this correct?
(B) They also question the unconstitutionality
of said ordinance. Is the said ordinance unconstitutional? What are the
requisites for an ordinance to be valid?
(C) Despite the dismissal of the charge for violation of Ordinance
No. 7780, petitioners did not move to withdraw the present action, adamant that
the Ordinance "violates the constitutional guarantees to free speech and
expression, violates the right to due process, and offends privacy
rights." On April 26, 2016 and upon petitioners' motion, Criminal
Case No. 13-30084 was ordered dismissed with prejudice. The petition was
dismissed on what grounds? Explain each ground.
(D)
Petitioners challenge the constitutionality of Ordinance No. 7780, alleging
that it defines the terms "obscene" and "pornography" in
such a way that a very broad range of speech and expression are placed beyond
the protection of the Constitution, thus violating the constitutional guarantee
to free speech and expression.Specifically, petitioners take issue with the
"expansive" language of Ordinance No. 7780 which, petitioners claim,
paved the way for complainants, a group of pastors and preachers, to impose
their view of what is "unfit to be seen or heard" and
"violate[s] the proprieties of language and behavior. Rule on said
challenge. (5) In sum,
the doctrines of strict scrutiny, overbreadth, and vagueness are analytical
tools developed for testing "on their faces" statutes in free speech
cases or, as they are called in American law, First Amendment cases. They
cannot be made to do service when what is involved is a criminal statute. With
respect to such statute, the established rule is that "one to whom application
of a statute is constitutional will not be heard to attack the statute on the
ground that impliedly it might also be taken as applying to other persons or
other situations in which its application might be unconstitutional. Explain
this statement as applied in the Madrilejos case.
A. Yes it
is correct. When the criminal charges against petitioners were dismissed with
prejudice, they can no longer be refiled without offending the constitutional
proscription against double jeopardy. Herein the petitioners have also failed
to demonstrate a reasonable likelihood that they will once again be hailed
before the Office of the City Prosecutor Manila for the same or another
violation of Ordinance No. 7780.48 It should be noted that the OCP Manila did
not even question the dismissal of the case.
B. In order
for an ordinance to be valid in substance, it (1) must not contravene the
Constitution or any statute; (2) must not be unfair or oppressive; (3) must not
be partial or discriminatory; (4) must not prohibit, but may regulate trade;
(5) must be general and consistent with public policy; and (6) must not be
unreasonable.
C. (1) The dismissal of the criminal charges
against petitioners for violation of the provisions of Ordinance No. 778014 has
rendered this case moot and academic. It was rooted from the express
constitutional rule under paragraph 2 of Section 1, Article VIII of the 1987
Constitution that "judicial power includes the duty of the courts of
justice to settle actual controversies involving rights which are legally
demandable and enforceable. (2) Ordinance No. 7780, an anti-obscenity law,
cannot be facially attacked on the ground of overbreadth because obscenity is
unprotected speech. The overbreadth doctrine has to necessarily
apply a facial type of invalidation in order to plot areas of protected speech,
inevitably almost always under situations not before the court, that are
impermissibly swept by the substantially overbroad regulation. Otherwise
stated, a statute cannot be properly analyzed for being substantially overbroad
if the court confines itself only to facts as applied to the litigants.
D. The overbreadth and vagueness doctrines then have special
application only to free speech cases. They are inapt for testing the validity
of penal statutes. This rationale does not apply to penal statutes. Criminal
statutes have general in terrorem effect resulting from their very existence,
and, if facial challenge is allowed for this reason alone, the State may well
be prevented from enacting laws against socially harmful conduct. In the area
of criminal law, the law cannot take chances as in the area of free speech.
3. Juan was seen handing an item to Maria along an alley. A
police officer 10 meters away saw this and it being that Juan is a notorious
drug pusher, he immediately arrested Juan and a charge of illegal pushing of
shabu was filed against him. Juan denied the charge saying that he did not sell
shabu, the evidence however showed that the item was really shabu. Question: If
you were the defense counsel of Juan what grounds would you invoke under our
constitution to acquit him from said charge? Explain.
As a defense counsel
to Juan, I will invoke the due process of law. In the case at bar, the evidence
got from Juan was a violation of Section 21, in addition, there was no warrant
of arrest or search warrant presented prior to detaining the accused. Thus,
with this invocation, there is a large margin of possibility that the criminal
case will dismissed.
4. Section 14, paragraph 4 of
the Anti-Hazing Law,which provides that an accused's presence
during a hazing is prima facie evidence of
his or her participation, is being questions whether it violates constitutional
presumption of innocence. The petitioners also say that said provision is a
bill of attainder. Said provision in particular provides that that one's
presence during the hazing is prima facie evidence of
participation as a principal, unless proven to have prevented or to have
promptly reported the punishable acts to law enforcement authorities if they
can, without peril to their person or their family. Question: (a)Is the
Anti-hazing law unconstitutional? Is it a bill of attainder? What is a bill of
attainder? What do you mean by the term “constitutional presumption of
innocence? Is the law violative of said presumption? (b) Petitioner claims that Sections 3 and 4 of the Anti-hazing Law are unconstitutional, as they would allow for the
conviction of persons for a crime committed by others, in violation of
the res inter alios acta rule. What is your
understanding of the res inter alios acta rule? She also argues that these
provisions violate Article III, Sections 1 and 19 of the Constitution for
constituting a cruel and unusual punishment, as she was charged as a principal,
and penalized with reclusion perpetua, for a non-bailable
offense. What is a “cruel and unusual punishment”? Cite some examples. Is reclusion perpetua as a punishment “cruel”?
Explain as to
how the Supreme Court ruled on said claims.
A. No.
Legislative acts are presumed constitutional. To be declared
unconstitutional, a statute or any of its provisions must be shown to have
clearly and unmistakably breached the Constitution. No it is not bill of
attainder, by definition this is a legislative act declaring persons guilty of
a crime without judicial trial because they treat members of a particular group
as principals or co-conspirators, even if they have no actual knowledge or
participation in the act. The presumption of innocence of an accused in a
criminal case is a basic constitutional principle, fleshed out by procedural
rules which place on the prosecution the burden of proving that an accused is
guilty of the offense charged by proof beyond reasonable doubt. The said law it
is not violative in the said presumption, is not violated when there is a
logical connection between the fact proved and the ultimate fact presumed. When
such prima facie evidence is unexplained or not contradicted by the accused,
the conviction founded on such evidence will be valid.
B. By
definition, res inter alios acta provides that a party's rights generally
cannot be prejudiced by another's act, declaration, or omission. A Cruel and
unusual punishment includes torture, deliberately degrading punishment, or
punishment that is too severe for the crime committed. This concept helps
guarantee due process even to convicted criminals. In the case at bar, public respondents claim that the penalty
of reclusion perpetua that will be imposed is not cruel and unusual punishment.
They argue that; consistent with Furman v. Georgia 28 and Perez v. People,29
penalties such as life imprisonment and even death may be imposed to discourage
crimes harmful to public interest. As for the Anti-Hazing Law itself, reclusion
perpetua is only imposable on the actual participants in the hazing, and only
when the hazing results in death, rape, sodomy, or mutilation.
5.
Explain the following terms (a)“buy-bust”, (b)chain of custody rule ,(c)
insulating witnesses (d) Sec. 5 and (e) Section 11 (f) Strict Neutrality
v. Benevolent Neutrality on religious freedom (g) Miller Test on obscenity.
A buy-bust operation is a form of
entrapment, whereby a police agent disguised as a buyer of illegal drugs
undertakes a sales transaction with a seller.
Chain of custody rule from Section 21, the mandate to conduct
inventory and take photographs "immediately after seizure and
confiscation" necessarily means that these shall be accomplished at the
place of arrest. When this is impracticable, the Implementing Rules and
Regulations of Republic Act No. 9165 as allowed.
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.
Article 11 protects your right to protest by holding meetings
and demonstrations with other people. You also have the right to form and be
part of a trade union, a political party or any another association or
voluntary group.
Strict neutrality or otherwise known as separation, strict or
tame. The weight of current authority, judicial and in terms of sheer volume,
appears to lie with the separationists. Protects the principle of church-state
separation with a rigid reading of the principle. Whereas, benevolent
neutrality protects religious realities, tradition and established practice
with a flexible reading of the principle. Suggesting a preference for
accommodating over inhibiting religion congruent with the sociological
proposition that religion serves a function essential to the survival of
society itself. Thus, there is no human society without one or more ways of
performing the essential function of religion.
The Miller test, also called the three-prong obscenity test,
is the United States Supreme Court's test for determining whether speech or expression
can be labeled obscene.
6.
SECTION 1. Section 1 of Presidential Decree No. 1866, as
amended, is hereby further amended to read as follows:
‘SECTION 1. Unlawful Manufacture, Sale,
Acquisition, Disposition or Possession of Firearms or Ammunition or Instruments
Used or Intended to be Used in the Manufacture of Firearms or Ammunition.
— The penalty of prision
correccional in its maximum period and a fine of not less than
Fifteen thousand pesos (P15,000) shall be imposed upon any person who shall
unlawfully manufacture, deal in, acquire, dispose, or possess any low powered firearm,
such as rimfire handgun, .380 or .32 and other firearm of similar firepower,
part of firearm, ammunition, or machinery, tool or instrument used or intended
to be used in the manufacture of any firearm or ammunition: Provided,
That no other crime was committed.
Question: (1) An accused committed murder using an unlicensed firearm. He was
charged of two offenses, one under the revised penal code for murder and the
other under P.D. 1866. Will there be no double jeopardy in this situation? Can
a court convict him for the said two offenses? (2) There is such principle as
the Agote doctrine.
What is this principle and how would you apply said principle in the case at
bar? Explain.
1. Under the Revised Penal Code, special laws
or statutes shall be primarily used to charge a commission of a crime. The RPC,
on the other hand, shall be supplementary. Thus, there will be no double
jeopardy.
7. An
Ordinance is passed "Prohibiting the catching, gathering, possessing,
buying, selling and shipment of live marine coral dwelling aquatic organisms,
to wit: 1. Family: Scaridae (Mameng), 2. Epinephelus Fasciatus (Suno) 3.
Cromileptes altivelis (Panther or Senorita), lobster below 200 grams and
spawning), 4. Tridacna Gigas (Taklobo), 5. Pinctada Margaretefera (Mother
Pearl, Oysters, Giant Clams and other species), 6. Penaeus Monodon (Tiger
Prawn-breeder size or mother), 7. Epinephelus Suillus (Loba or Green Grouper)
and 8. Family: Balistidae (T[r]opical Aquarium Fishes) for a period of five (5)
years in and coming from Palawan Waterspetitioners. Petitioners contend that:
First, the Ordinances deprived them of
due process of law, their livelihood, and unduly restricted them from the
practice of their trade, in violation of Section 2, Article XII and Sections 2
and 7 of Article XIII of the 1987 Constitution.
Second, Office Order No. 23 contained no
regulation nor condition under which the Mayor's permit could be granted or
denied; in other words, the Mayor had the absolute authority to determine
whether or not to issue the permit.
Third, as Ordinance No. 2 of the
Province of Palawan "altogether prohibited the catching, gathering,
possession, buying, selling and shipping of live marine coral dwelling
organisms, without any distinction whether it was caught or gathered through
lawful fishing method," the Ordinance took away the right of
petitioners-fishermen to earn their livelihood in lawful ways; and insofar as
petitioners-members of Airline Shippers Association are concerned, they were
unduly prevented from pursuing their vocation and entering "into contracts
which are proper, necessary, and essential to carry out their business
endeavors to a successful conclusion."
Question: Is the ordinance valid or not?
Discuss vis-à-vis the first, second and third contentions.
No. The Supreme
Court found the petitioners contentions baseless and held that the challenged
ordinances did not suffer from any infirmity, both under the Constitution and
applicable laws. There is absolutely no showing that any of the petitioners
qualifies as a subsistence or marginal fisherman. Besides, Section 2 of Article
XII aims primarily not to bestow any right to subsistence fishermen, but to lay
stress on the duty of the State to protect the nation’s marine wealth. The
so-called “preferential right” of subsistence or marginal fishermen to the use
of marine resources is not at all absolute.
In accordance
with the Regalian Doctrine, marine resources belong to the state and pursuant
to the first paragraph of Section 2, Article XII of the Constitution, their
“exploration, development and utilization...shall be under the full control and
supervision of the State.
In addition, one of the devolved powers of the LCG on devolution is the
enforcement of fishery laws in municipal waters including the conservation of
mangroves. This necessarily includes the enactment of ordinances to effectively
carry out such fishery laws within the municipal waters. In light of the
principles of decentralization and devolution enshrined in the LGC and the
powers granted therein to LGUs which unquestionably involve the exercise of
police power, the validity of the questioned ordinances cannot be doubted.
8. An Ordinance is passed, with the
pertinent provisions: (1)All public lands within Baguio townsite which are
occupied by squatters who are duly registered as such at the time of the
promulgation of this Ordinance such public lands not designated by city and
national authorities for public use, shall be considered as embraced and
comprising a City Government Housing Project; PROVIDED, HOWEVER, That areas
covered by Executive Orders or Presidential Proclamations but the city had made
official representation for the lifting of such orders or proclamation shall be
deemed to be part of the Baguio Townsite for the purposes of this ordinance;
Section 2.—Building permits shall have
been deemed issued to all squatters as contemplated by this Ordinance, giving
such squatters five years from the approval of this Ordinance to satisfactorily
comply with city building specifications and payment of the corresponding city
building permit fees;
Section 3.—All cases pending in court
against squatters be dropped without prejudice to the full prosecution of all
subsequent violations in relation to the provisions of existing city ordinances
and/or resolutions.
Question: Is said ordinance valid?
Explain.
No. Being
unquestionably a public land, no disposition thereof could be made by the City
of Baguio without prior legislative authority. It is the fundamental principle
that the state possesses plenary power in law to determine who shall be favored
recipients of public domain, as well as under what terms such privilege may be
granted not excluding the placing of obstacles in the way of exercising what
otherwise would be ordinary acts of ownership. And the law has laid in the
Director of Lands the power of exclusive control, administration, disposition
and alienation of public land that includes the survey, classification, lease,
sale or any other form of concessions or disposition and management of the
lands of public domains. Nor could the enactment of Ordinance 386 be justified
by stating that "this Ordinance is primarily designed to extend a helping
hand to the numerous landless city residents and the so called squatters within
the Baguio townsite in their desire to acquire residential lots which they may
rightly call their own and that the reported people who have violated the
City's building ordinances were not so guided by any criminal perversity, but
were given to it more by circumstances of necessity and that they are,
therefore, entitled to a more human treatment, more understanding and more of
pity rather than be herded before the courts, likened to hardened criminals and
deliberate violators of our laws and ordinances.
9. Aniceto
G. Saludo, Jr. filed a complaint for damages against the American Express
International, Inc. (AMEX) and/or its officers Ian T. Fish, Vice-President and
Country Manager, and Dominic Mascrinas, Head of Operations, with the RTC of
Maasin City, Southern Leyte. The case was raffled to Branch 25 of the said
court.
The complaint alleged, inter alia, that
plaintiff (herein petitioner Saludo) "is a Filipino citizen, of legal age,
and a member of the House of Representatives and a resident of Ichon, Macrohon,
Southern Leyte, Philippines." On the other hand, defendant (herein
respondent AMEX, Inc.) "is a corporation doing business in the Philippines
and engaged in providing credit and other credit facilities and allied services
with office address at 4th floor, ACE Building, Rada Street, Legaspi Village,
Makati City." The other defendants (herein respondents Fish and Mascrinas)
are officers of respondent AMEX, and may be served with summons and other court
processes at their office address.
The complaint's cause of action stemmed
from the alleged wrongful dishonor of petitioner Saludo's AMEX credit card and
the supplementary card issued to his daughter. The first dishonor happened when
petitioner Saludo's daughter used her supplementary credit card to pay her
purchases in the United States some time in April 2000. The second dishonor
occurred when petitioner Saludo used his principal credit card to pay his
account at the Hotel Okawa in Tokyo, Japan while he was there with other
delegates from the Philippines to attend the Congressional Recognition in honor
of Mr. Hiroshi Tanaka.
The dishonor of these AMEX credit cards
were allegedly unjustified as they resulted from respondents' unilateral act of
suspending petitioner Saludo's account for his failure to pay its balance
covering the period of March 2000. Petitioner Saludo denied having received the
corresponding statement of account. Further, he was allegedly wrongfully
charged for late payment in June 2000. Subsequently, his credit card and its
supplementary cards were canceled by respondents on July 20, 2000.
Petitioner Saludo claimed that he
suffered great inconvenience, wounded feelings, mental anguish, embarrassment,
humiliation and besmirched political and professional standing as a result of
respondents' acts which were committed in gross and evident bad faith, and in
wanton, reckless and oppressive manner. He thus prayed that respondents be
adjudged to pay him, jointly and severally, actual, moral and exemplary
damages, and attorney's fees.
In their answer, respondents specifically
denied the allegations in the complaint. Further, they raised the affirmative
defenses of lack of cause of action and improper venue. On the latter,
respondents averred that the complaint should be dismissed on the ground that
venue was improperly laid because none of the parties was a resident of Leyte.
They alleged that respondents were not residents of Southern Leyte. Moreover,
notwithstanding the claim in his complaint, petitioner Saludo was not allegedly
a resident thereof as evidenced by the fact that his community tax certificate,
which was presented when he executed the complaint's verification and
certification of non-forum shopping, was issued at Pasay City. To buttress
their contention, respondents pointed out that petitioner Saludo's complaint
was prepared in Pasay City and signed by a lawyer of the said city. Respondents
prayed for the dismissal of the complaint a quo.
Thereafter, respondents filed an
Opposition to Ex-Parte Motion (to Set Case for Pre-Trial) and Motion for
Preliminary Hearing (on Affirmative Defense of Improper Venue) to which
petitioner Saludo filed his Comments and/or Objections to the Affirmative
Defense of Improper Venue. He asserted that any allegation refuting his
residency in Southern Leyte was baseless and unfounded considering that he was
the congressman of the lone district thereof at the time of the filing of his
complaint. He urged the court a quo to take judicial notice of this particular
fact. As a member of Congress, he possessed all the qualifications prescribed
by the Constitution including that of being a resident of his district. He was
also a member of the Integrated Bar of the Philippines-Southern Leyte Chapter,
and has been such ever since his admission to the Bar. His community tax
certificate was issued at Pasay City only because he has an office thereat and
the office messenger obtained the same in the said city. In any event, the
community tax certificate is not determinative of one's residence.
In the Order dated September 10, 2001,
the court a quo denied the affirmative defenses interposed by respondents. It
found the allegations of the complaint sufficient to constitute a cause of
action against respondents. The court a quo likewise denied respondents'
affirmative defense that venue was improperly laid. It reasoned, thus:
x x x [T]he fact alone that the
plaintiff at the time he filed the complaint was and still is, the incumbent
Congressman of the Lone District of Southern Leyte with residence at Ichon,
Macrohon, Southern Leyte, is enough to dispel any and all doubts about his
actual residence. As a high-ranking government official of the province, his
residence there can be taken judicial notice of. As such his personal, actual
and physical habitation or his actual residence or place of abode can never be
in some other place but in Ichon, Macrohon, Southern Leyte. It is correctly
stated by the plaintiff, citing the case of Core v. Core, 100 Phil. 321 that,
"residence, for purposes of fixing venue of an action, is synonymous with
domicile. This is defined as the permanent home, the place to which, whenever
absent for business or pleasure, one intends to return, and depends on the
facts and circumstances, in the sense that they disclose intent. A person can
have but one domicile at a time. A man can have but one domicile for one and
the same purpose at any time, but he may have numerous places of residence.
Venue could be at place of his residence.
Questions:
IN THIS case what is the residence of Saludo? What is his domicile? In election
cases, is there a difference between domicile and residence? EXPLAIN.
Saludo’s residence is in Ichon, Macrohon, Southern Leyte, Philippines.
His domicile is in Quezon City. In the instant case, since plaintiff has a
house in Makati City for the purpose of exercising his profession or doing
business and also a house in Ichon, Macrohon, Southern Leyte, for doing
business and/or for election or political purposes where he also lives or stays
physically, personally and actually then he can have residences in these two
places. Because it would then be preposterous to acknowledge and recognize
plaintiff Aniceto G. Saludo, Jr. as congressman of Southern Leyte without also
recognizing him as actually, personally and physically residing thereat, when
such residence is required by law.
10. Two ordinances were passed by the
Cagayan De Oro Council.
(1)AN ORDINANCE PROHIBITING THE ISSUANCE
OF BUSINESS PERMIT AND CANCELLING EXISTING BUSINESS PERMIT TO ANY ESTABLISHMENT
FOR THE USING AND ALLOWING TO BE USED ITS PREMISES OR PORTION THEREOF FOR THE
OPERATION OF CASINO.
(2)AN ORDINANCE PROHIBITING THE
OPERATION OF CASINO AND PROVIDING PENALTY FOR VIOLATION THEREFOR:
QUESTION: ARE THESE ORDINANCES VALID?
Explain.
No. The
ordinances enacted are invalid. Ordinances should not contravene a statute.
Municipal governments are merely agents of the National Government. Local
Councils exercise only delegated powers conferred by Congress. The delegate
cannot be superior to the principal powers higher than those of the latter. PD
1869 authorized casino gambling. As a statute, it cannot be amended/nullified
by a mere ordinance. As to petitioners attack on gambling as harmful and
immoral, the Court stressed that the morality of gambling is not a justiciable
issue. Gambling is not illegal per se. While it is generally considered
inimical to the interests of the people, there is nothing in the Constitution
categorically proscribing or penalizing gambling or, for that matter, even
mentioning it at all. It is left to Congress to deal with the activity as it
sees fit. In the exercise of its own discretion, the legislature may prohibit
gambling altogether or allow it without limitation or it may prohibit some
forms of gambling and allow others for whatever reasons it may consider
sufficient. Thus, it has prohibited jueteng and monte but permits lotteries,
cockfighting, and horse-racing. In making such choices, Congress has consulted
its own wisdom, which this Court has no authority to review, much less reverse.
Well has it been said that courts do not sit to resolve the merits of
conflicting theories. That is the prerogative of the political departments. It
is settled that questions regarding the wisdom, morality, or practicability of
statutes are not addressed to the judiciary but may be resolved only by the legislative
and executive departments, to which the function belongs in our scheme of
government. That function is exclusive. Whichever way these branches decide,
they are answerable only to their own conscience and the constituents who will
ultimately judge their acts, and not to the courts of justice.
End of the Examination
