Cuenca, DC Kimberly C. JD
– 1
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.
Answer:
First, immediately after seizure
and confiscation, the apprehending officers should conduct physical inventory
and photograph the seized dangerous drugs and drug paraphernalia in the
presence of the accused or the person/s from whom such items were confiscated,
or in the presence of his / her legal counsel or representative, a
representative from the media, and the Department of Justice, and any elected
public official who shall be required to sign the copies of the inventory and
be given a copy. The physical inventory and photograph should be conducted at
the nearest police station, in case of warrantless seizures, such as a buy-bust
operation. On the other hand, the physical inventory and photograph should be
conducted at the place where the search warrant is served.
Second, the seized
dangerous drugs and drug paraphernalia should be submitted to the PDEA Forensic
Laboratory for a qualitative and quantitative examination within twenty – four
(24) hours upon seizure.
Third, a forensic
laboratory examiner, under oath, will issue a certification of the forensic
laboratory examination results within twenty – four (24) hours after receiving the
seized items.
Fourth, the Court shall
conduct an ocular inspection of the seized dangerous drugs and drug
paraphernalia within seventy – two (72) hours after the filing of the criminal
case. The PDEA will then proceed with the destruction or burning of the seized
items within (24) hours in the presence of the accused, his / her legal counsel
or representative, a representative from the media and the DOJ, and any elected
public official. The Board will decide the guidelines on the manner of proper
disposition and destruction of such items.
Fifth, the Board will then
issue a sworn certificate that the seized items were destructed or burned,
along with the representative sample in the custody of the PDEA, shall be
submitted to the court handling the case. The Board will determine the minimum
quantity of the representative sample to be kept.
Sixth, the accused or his
/ her legal counsel or representative can personally observe all the mentioned
proceedings above. His / her presence will not constitute an admission of
guilt.
The consequence of not following the said procedures
is it will ensue an initial and fatal gap in chain of custody, and a doubtful
and suspicious way of ensuring the integrity of the seized items will arise.
The prosecution will have a hard time in proving the chain of custody, and that
from the time the seized items were confiscated from the accused until they are
disposed at the end of the criminal proceeding, there is no switching, “planting”,
or contamination of evidence. Failure to follow the said procedures will
amplify the need to acquit the accused – appellant.
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?
Answer:
Yes, this is correct. Section 21, Article III of the 1987 Constitution
stated no person shall be twice put in jeopardy if punishment for the same
offense. If an act is punished by a law and an ordinance, conviction, or
acquittal under either shall constitute a bar to another prosecution for the
same act. The respondents were already dismissed with prejudice; therefore,
they can no longer be refiled the same case as it will be subject to double
jeopardy then.
(B)
They also question the unconstitutionality of said ordinance.
Is the said ordinance unconstitutional? What are the requisites for an
ordinance to be valid?
Answer:
No, the said ordinance is
constitutional.
The requisites for an
ordinance to be valid are (1) it must not contravene the Constitution or any
statute; (2) it must not be unfair or oppressive; (3) it must not be partial or
discriminatory; (4) it must not prohibit but may regulate trade; (5) it must be
general and consistent with public policy; and (6) it must not unreasonable.
(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.
Answer:
(1) The dismissal
of the criminal charges against petitioners for violation of the provisions of
Ordinance No. 7780 has rendered the case moot and academic.
The Court dismissed the case on moot and academic because (a) there is no
grave violation of the Constitution; (b) the situation is not of exceptional
character and no paramount public interest in involved; (c) the constitutional
issue does not raise required formulation of controlling principles to guide
the bench, the bar, and the public; and (d) the case is not capable of
repetition yet evading review.
(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 finds special and limited application only to
free speech cases; however, the petition is stemmed from an obscenity
prosecution, and does not involve a free speech case.
(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.
Answer:
Sustained. The
petitioners’ challenge are only facial attacks against Ordinance No. 7780.
Ordinance No. 7780 criminalizes obscenity, and obscenity is an unprotected
speech.
(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.
Answer:
In the Madrilejos case, Ordinance No. 7780 is constitutional. Therefore,
the petitioners’ arguments should not be heard to attack the statute.
Furthermore, Ordinance No. 7780 criminalizes obscenity, thus, making Ordinance
No. 7780 a criminal statute.
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.
Answer:
If I were the defense counsel of
Juan, I would invoke on the grounds of initial and fatal gap in chain of
custody. The police officer failed to establish and follow the procedures in
arresting an accused and seizing evidence or in this case, the dangerous drugs
and or the drug paraphernalia perhaps. The integrity of the seized shabu is
questionable.
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.
Answer:
(a)
No, the Anti – hazing
law is constitutional.
No, it is not a bill
of attainder.
Bill of attainder is
a legislative act declaring persons guilty of a crime without judicial trial.
Constitutional
presumption of innocence is the accused is presumed innocent until proven
guilty beyond reasonable doubt in all criminal prosecutions. The constitutional
presumption of innocence is not violated when there is a logical connection
between the fact proved and the ultimate fact presumed.
No, the law is not
violative of said presumption.
(b) Res inter alios acta
rule is things done between strangers ought not to injure those who are not
parties to them. It also provides that the rights of a party cannot be
prejudiced by an act, declaration, or omission of another.
Cruel and unusual punishment are
punishments that are considered unacceptable due to the suffering, pain, or
humiliation it inflicts on the person subjected to the sanction. Cruel and
unusual punishment includes torture, deliberately degrading punishment, or
punishment that is too severe for the crime committed.
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.
Answers:
(a) buy – bust – is a form of entrapment, whereby a
police agent disguised as a buyer of illegal drugs undertakes a sales
transaction with a seller.
(b) Chain of custody rule – is when information is
gathered from the crime scene and is used to create a chain of custody to show
what was at the scene, its location, and its condition. It requires the
identification of the persons who handled the confiscated items for the purpose
of duly monitoring the authorized movements of the illegal drugs and / or drug
paraphernalia from the time they were seized from the accused until the time
they are presented in court.
(c) Insulating witnesses – are three required witnesses
physically present at the time of inventory of a buy-bust operation. The
insulating witnesses serves a very critical role in a buy-bust operation – to
ensure there is no planting of evidence.
(d)
(e)
(f)
Strict Neutrality believes that the “wall of separation” does not require the
state to be their adversary. The State must be neutral in its relations with
groups of religious believers and non – believers. While the Benovelent
Neutrality is premised on a different view of the “wall of separation”, the
wall is meant to protect the church from the state.
(g)
Miller test for obscenity includes (1) whether the average person, applying
contemporary community standards would find that the work taken as a whole, appeals
to prurient interest; (2) whether the work depicts or describes in a patently
offensive way, sexual conduct specifically defined by the applicable state law;
and (3) whether the work taken as a whole lacks serious literary, artistic,
political, or scientific value.
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.
Answers:
(1) Yes, there will be no double jeopardy in this
situation. There is double jeopardy when a person who was charged with an
offense and the case was terminated either by acquittal or conviction is
charged again with the same or identical offense. The two offenses are not the
same in the case at bar.
Yes, the court can convict him for
the said two offenses. The two offenses are different cases.
(2)
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.
Answer:
The ordinance is valid.
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.
Answer:
The said ordinance is invalid. The land
occupied by the squatters are scattered portions of the public domain within
the Baguio townsite. The City of Baguio cannot make a disposition without prior
legislative authority seeing that the said land is unquestionably a public
land.
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.
Answers:
The residence of Saludo is Makati City. His domicile is
Ichon, Macrohon, Southern Leyte. No, there is no difference between domicile
and residence in election cases. Under the political law, the residence for
election purposes is used synonymously with domicile.
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.
Answer:
No, these ordinances are invalid. PAGCOR is a
corporation created directly by P.D. 1869 to centralized and regulate all games
of chance, including casinos. Casino gambling is authorized by P.D. 1869, and
this Presidential Decree has the status of a statute that cannot be amended or
nullified by a mere ordinance. An ordinance has no power against a Presidential
Decree.
End of the Examination
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