FINAL ALBERTINE JUNE DIN

 Albertine June Din FINAL EXAMINATION IN POLITICAL LAW January 16, 2021 

5%1. Answer: Section 21 of RA 9165 along with jurisprudence provides that immediately after confiscation of the drugs, marking of the confiscated items must be done at the place of confiscation in the presence of the accused. Immediately after which, photograph and physical inventory must be done in the presence of the accused, his/her counsel, an elected public official and either a representative of the National Prosecution Service or the media. This is done in order to ensure that the chain of custody of the evidence obtained is properly carried out. If the authorities fail to follow this procedure, the court will not be convinced of the authenticity of the pieces of evidence and the accused will have to be acquitted.

 2. 

5%(A) Answer: The claim of the respondents of double jeopardy is incorrect since it lacks all the requisites of a double jeopardy. A case of double jeopardy requires that a subsequent case is filed against the same person after the valid acquittal or dismissal of a prior case, when both cases are filed on the ground of the same facts and same offense. In the instant case, the charge was made on the same filing of case or complaint-affidavit, with the complainants citing two laws which the respondents allegedly violated. 

(B) Answer: The ordinance in question in this case can be considered unconstitutional not only because it provides vague definitions of obscenity and pornography, but because it failed to apply the Miller test used in this jurisprudence in determining what is considered obscene. An ordinance that has vague provisions violates the constitutionally protected right of due process, which is one of the requirements for an ordinance to be valid. Other requisites are that the ordinance must not be unfair, not discriminatory, not be prohibiting trade, not unreasonable and must be consistent with public policy. 

(C) Answer: The petition was dismissed on the grounds that the dismissal of the criminal charges has rendered the case moot and academic and that Ordinance No. 7780 cannot be facially challenged since it is an anti-obscenity law and not a penal law limiting free speech. As regards the first ground, the case has become moot and academic because the charges have already been dismissed and thus there is no actual case for the Court to rule on and this means that it is outside of their jurisdiction. For the Court to discuss cases which have already been resolved and the remedy already provided, the Court will only be giving academic discussion on fictional and hypothetical cases which is outside of its jurisdiction. As regards the second ground, the overbreadth doctrine and facial challenge only applies to penal laws which limit free speech, a constitutionality protected right. According to the Court, Ordinance 7780 is on anti-obscenity, and obscenity is not protected under the freedom of speech clause. In sum, Ordinance 7780 does not involve the free speech clause. 

(D) Answer: The challenge on the constitutionality of Ordinance No. 7780 is valid as penal laws on obscenity must be aligned with the Miller test. That is, it must pass the tree-pronged test to determine whether an item is obscene, lest it run the risk penalizing art forms which are not necessarily obscene. According to the Miller test, an item is obscene if it appeals to prurient interest or only invokes lustful desires, if it portrays offensive sexual conduct, and if it taken as a whole it does not have other political, scientific, cultural or literary value.

 (E) Answer: This means that facial challenge cannot be used against statutes which are criminal and penal in nature and does not involve free speech. In this case, it cannot be applied in the question on the constitutionality of Ordinance No. 7780 because it is considered to be a statute regarding obscenity and not free speech. To rule on face value that the questioned ordinance is violative of the freedom of speech would be to overlook other cases where it can be constitutional. As such, this rule states that there must be an actual case considered to rule on the constitutionality of Ordinance No. 7780. 

3. Answer: As Juan’s defense counsel, I would invoke illegal warrantless search which should acquit Juan. This is so because there are only specific situations provided in jurisprudence for a warrantless search to be valid. This includes being incidental to a lawful arrest, a search of moving vehicle, in plain view where the accused are acting suspiciously, customs search, stop-and-frisk and consented warrantless search. The instant case does not fall in any of these circumstances and thus is an illegally obtained evidence. Following the doctrine of fruit of the poisonous tree, illegally obtained evidence are inadmissible in court. 

4. Answer: The Anti-Hazing Law is not unconstitutional as it is not a bill of attainder. A bill of attainder is that which punishes a person or group of persons without benefit of the judicial process. However, the law in question does not punish the people in fraternities or sororities but prohibits the practice of hazing. Moreover, there is no provision in the law which restricts one from going to court and to initiate judicial proceedings. As such, this law is not a bill of attainder. On the other hand, a constitutional presumption of innocence means that the accused is presumed to be innocent until proven guilty. Again, the Anti-Hazing Law is not violative of this presumption of innocence because due to the secretive nature of hazing, the burden of proof is on the defense to prove that one did not participate in the killing of the victim, and instead was preventing the incident. Due to the secrecy of the activity, one’s presence during the hazing is prima facie evidence and basis of the presumption of actual participation.

 (4.b) Answer: The res inter alios acta rule provides that one’s rights cannot be prejudiced by another’s act or omission. Under the Philippine jurisdiction, a cruel and unusual punishment is considered to be one that is inhumane, degrading, oppressive and disproportionate to the offense being punished. Examples of cruel and unusual punishment would be whipping or a punishment of reclusion perpetua for a debt of small value or bouncing checks. Reclusion perpetua per se is not cruel and unusual punishment if it is reasonable considering the offense and the damage resulting from the offense. However, it is cruel if it is disproportionate and unreasonable. In the instant case, the Supreme Court ruled that the punishment imposed on violation of the Anti-Hazing Law is not cruel and unusual because they are reasonable and are indicative of the State’s acknowledgement of the preponderance of hazing by fraternities and sororities in the country, and the State’s policy to prohibit them.

3% 5. Explain the following terms (a)“buy-bust” Answer: A buy-bust operation is a planned and organized police operation to arrest suspects of substance abuse based on a tip, wherein one police agent poses as a buyer and uses marked money to trap the suspected drug seller. Once the transaction is complete, that is, once there is exchange of the marked money and the substance, the poser signals the other police in the vicinity to proceed with the arrest. While this practice is legal, there are strict guidelines provided in order to ensure that the police will not fabricate evidence.

 (b)chain of custody rule Answer: The chain of custody refers to how the police should handle pieces of evidence obtained during arrests of drugs-related cases, such as buy-bust operations. The chain of custody rule indicates that the evidence should be marked immediately after the arrest, and is photographed, put in inventory, sent out for testing, and must be the same evidence used in the subsequent charge filed against the accused. 

(c) insulating witnesses Answer: 

(d) Sec. 5 Answer: 

(e) Section 11 Answer:

 (f) Strict Neutrality v. Benevolent Neutrality on religious freedom Answer: Strict Neutrality and Benevolent Neutrality on religious freedom was explained in Estrada v. Escritor as two different applications of the doctrine of separation of Church and State. In the strict neutrality interpretation, the State is more hostile towards the Church in order to ensure that there is no influence of religion in the issues of the state, and there is complete separation and independence of the two, wherein the State will not give any form of support or aid to any religion. On the other hand, the benevolent neutrality, which is applied in the Philippine jurisprudence, only ensures that the State does not sponsor or give preference to any religion, and that any religious consideration must not be used as basis for policy decisions. 

(g) Miller Test on obscenity. 

Answer: The Miller Test on obscenity is a three-pronged test to determine if an item is obscene and thus outside the protection of the freedom of speech provision. The three questions which must be present are: (1) whether the item in question would be considered by an average person using community standards as appealing to prurient interest, (2) whether it portrays offensive sexual conduct, and (3) whether, if taken as a whole, if it has other cultural, political, literary or artistic value. 

6. (6.1) Answer: There is no double jeopardy in this situation since a case of double jeopardy requires that a subsequent case was filed against the same person after the valid acquittal or dismissal of a prior case, for the same offense. In the instant case, there is no previous acquittal, and therefore there is no double jeopardy. However, PD1866 is clear that a person can be charged with violation of PD 1866 if there is no other crime committed. Since there is also murder committed in this case, the accused cannot be charged separately for violation of PD1866. 

(6.2) Answer: The Agote doctrine says that since the provision of PD1866 stating that it is only applicable if there are no other crimes committed does not distinguish that it is only applicable to cases of homicide and murder, and thus, it should also be applied to other cases such as violation of the gun ban of election laws. As applied in this case, the accused cannot be charged separately because there was another crime committed—murder.

Answer: The accused can be charged separately, but he cannot be convicted of two offenses in accordance with the agote doctrine. If he is convicted of murder, then the gun ban charge had to be dismissed. If he is convicted of the gun ban charge, then the murder case could be dismissed Otherwise, jeopardy would set in.

 7. Answer: This ordinance is valid because it is a valid exercise of the State of the Regalian doctrine, wherein all marine resources are properties of the State as provided in the Constitution. Moreover, the devolution of powers and decentralization through the Local Government Code gives the local government authority to enact ordinances to protect marine resources in consideration of the general welfare. On the first contention, when ordinances are passed, they go through community and stakeholder consultations, thus, the petitioners cannot claim that the ordinances has deprived them of due process of law. On the second contention, the Mayor has the authority to regulate the waters within his jurisdiction in consideration of the general welfare, through the powers vested in him in the Local Government Code. Lastly, on the third consideration, the petitioners are not subsistence fishermen, and even if they were, the right of the fishermen to use the marine resources owned by the State is not absolute. The State has the power to regulate and ensure the welfare of the marine resources.

 8. Answer: This ordinance is invalid for being inconsistent with public policy. Squatting, by definition, is illegal settling in another’s property. As the Philippines has a system of law to maintain peace and order, which also recognizes property rights, the illegal use of another’s real property to the exclusion of the right of possession of the owner cannot be sanctioned or given legal approval by local legislators going against national and public policy.

 9. Answer: In this case, the Saludo has two residences: one in Metro Manila and one in Sotuthern Leyte. This is because he frequents both residences due to his job as a legislator from Southern Leyte. A residence may be either permanent or temporary and is proven by the physical presence of a person in the residence. As such, a person may have two or more residences. On the other hand, a domicile is the residence where a person has intention of permanently staying. This is the place where one intends to return. As such, there is only one domicile for each person. However, for election law, the definition of residence is stricter, and almost the same as one’s domicile.

 10. Answer: These ordinances are invalid for being inconsistent with public policy. Casinos are legal in the Philippines and are regulated by a national statute, PD 1869. As such, the local legislative council of CDO has no power to go against national legislation, rendering the ordinances invalid