MARIE BETH D. REVILLA
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:
Section 21 specifies the protocol to be
practiced by police officers while treating confiscated substances in order to
protect their reputation and the value of their evidence. Under that provision,
pursuant to its modification the apprehending party shall, among others,
immediately that after arrest and seizure, carry out a physical count and take
photos of the recovered objects in the presence of that same accused Or the
person from whom the supplies have been recovered, or his or her agent or
lawyer, a representative of the media and the DOJ, and any elected public
official who is expected to sign copies of the inventory and to include a copy
thereof, and the confiscated drugs must be handed over to the Philippine
National Police Crime Laboratory within twenty-four hours of the date of the
confiscation for review.
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.
ANSWER:
No they cannot be subjected to double jeopardy because
the filed case is not of the same offense. It has been deemed Constitutional it
was held that people do not have to exist under pressure or censorship without
a fair basis. Although the Court retains the power to decide what is and what
is not obscene, the requirements for determination must differ by case and must
change over time. Any law that aims to limit the practice of freedom of speech
and expression whether local or national must be revoked. The general rule is that before parties can raise a
constitutional question upon things and they must first show that direct injury
was sustained or will be sustained. As said that taxpayers, voters, concerned
citizens, and legislators may be accorded standing to sue, provided that the
following requirements are met:
1. the cases involve constitutional issues;
2. for taxpayers, there must be a claim of illegal disbursement
of public funds or that the tax measure is unconstitutional;
3. for voters, there must be a showing of obvious interest in
the validity of the election law in question;
4. for concerned citizens, there must be a showing that the
issues raised are of transcendental importance which must be settled early; and
5. for legislators, there must be a claim that the official
action complained of infringes upon their prerogatives as legislators.
The Court rejected the
petition on the basis of mootness and overbreadth that the petition does not
allege that the OCP Manila is performing a preliminary examination process
without or outside its control of criminal prosecution, and thus the
petitioners are not the proper parties to contest the legality of Ordinance No.
7780 and enjoy the presumption of constitutionality.
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:
I Shall invoke the 1987 Constitution for the protection of Juan’s rights in
section 12 that any person under investigation shall have the right to 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.
Proper investigation is needed to be done before an arrest and the Police did
not have a proper warrant for searching and did not follow proper protocols in
acquiring an arrest for drug operations. The police failed to follow the chain
of custody therefore him just seeing things is not a justifiable reason.
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:
It is stated that a persons right cannot be
prejudiced by the action or omission. These punishments may refer to torture
and punishment for a crime may be committed during these punishments. Res inter
Alios acta rule helps guarantee due process unto convicted criminals in cases
of hazing activities. In the case presented it is said that the public
respondents have claimed that the penalty for reclusion perpetua that is
imposed is not an unusual punishment. It is argues that with jurisprudent
penalties such as life imprisonment or death may be imposed to discourage
crimes harmful to the public. When it comes to the Anti-Hazing Law, reclusion
perpetua is imposable only on the participants of the hazing and only if it
results in rape or even death.
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.
ANSWER:
A.) BUY-BUST - It is an undercover operation used
by police of detectives to catch unsuspecting drug dealers.
B.) CHAIN OF CUSTODY RULE - It requires the order
that a piece of evidence must be dealt with when prosecuting a crime. That is a
chronological paper trail that records that have gathered, treated, examined or
otherwise controlled evidence during the investigation. In order to conform
with the rules and conditions of the statute, it is important for the chain of
custody to be an unbroken course without holes or contradictions.
C.) INSULATING WITNESSES - Isulating witnesses
shall be present during the tagging, the actual inventory and the taking of
photos of the recovered objects for evidence in order to prevent [possible
planting] of evidence.
D.) SECTION 5 - Sale, Trade, Administration,
Dispensation, Supply, Distribution and Shipment of Hazardous Narcotics and/or
Regulated Precursors and Critical Chemicals. -The sentence of life imprisonment
and a fine of five hundred thousand pesos (P500,000.00) to ten million pesos
(P10,000,000.00) shall be levied on any person. Who, unless approved by
statute, sells, exchanges, administers, dispenses, deliveries, delivers to
another human, distributes in transit or transport any harmful substance,
including any and all species of opium poppy, irrespective of the quantity and
purity involved, or serves as a broker in any other transaction.
E.) SECTION 11 - Possession of dangerous drugs.
-The sentence of life imprisonment to death and a fine of five hundred thousand
pesos (P500,000.00) to ten million pesos (P10,000,000.00) shall be imposed on
any person who, unless allowed by statute, consumes any harmful substance in
any amount, irrespective of the degree of purity.
F.) STRICT NEUTRALITY V. BENEVOLENT NEUTRALITY ON
RELIGIOUS FREEDOM – Otherwise referred to as division strict or tame. The
weight of the new jurisdiction both judicial and terms of volume, seems to lie
with the separators. Protects the principle of distinction between the Church
and the State with a strict interpretation of the principle.
G.) MILLER TEST ON OBSCENITY –
Are the
following:
(1)Whether the average person applying
contemporary community standard would find work, taken as a whole, appeals to
the prurient interest.
(2)
whether the work depicts or describes, in a patently offensive way, sexual
conduct specifically defined by the applicable state law;
(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.
ANSWER:
1.
Yes there
will be double jeopardy in this situation because the first offense already
stated that it was murder using an unlicensed firearm another case for the use
of unlicensed firearm will constitute as double jeopardy if it is derived from
the same case situation.
2.
Principle of Agote Doctrine says that an
accused is not liable for illegal possession of firearm if the firearm was used
in the commission of an offense such as a violation of the election gun ban.
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:
There is absolutely no indication that either
of the petitioners is a subsistence or marginal fisherman. Moreover, the
purpose of Section 2 of Article XII is primarily not to grant any right to
subsistence fishermen, but to emphasize the State's obligation to protect the
marine resources of the country. In compliance with the Regalian Doctrine, the
maritime resources belong to the State and, according to the first paragraph of
Section 2, Article XII of the Constitution, their discovery, production and
exploitation shall be subject to the complete oversight and supervision of the
State.
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:
This ordinance
is specifically intended to offer a helping hand to the various landless city
dwellers and the so-called 'Squatters' on the Baguio Townsite, in their quest
to obtain residential lots which they may properly call their own. Recorded
citizens who have broken the City Building Codes have not been so guarded by
any criminal perversity, but have been granted more by circumstances of
necessity and are thus entitled to more fair consideration, more understanding
and more pity than to be kept before the courts, relative to hardened criminals
and intentional violators of the 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.
ANSWER:
In this case the Residence of Saludo is in Makati City as he may
have acquired papers and created a
business there but he does not stay there for long periods of time therefore
results that Southern Leyte is his Domicile where he works as a congressman. A residence is a home
you hope to live in for a brief period of time, while a Domicile is a home
you intend to live in for an infinite period of time. Any place you own or live
for a forbidden period of time can be your home. But only the one location
where you want to make your permanent residence and reside forever can be your
domicile. So you can have a number of residences, but you
can only have one domicile in one location.
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, the first ordinance is ORDINANCE NO. 3353 ban the activity
of casinos because they require gambling that is harmful to citizens.
Gambling is not approved by common legislation or also by the
Constitution itself. The regulatory authority bestowed on local government
units can be exercised on all forms of gambling and not just "illegal
gambling" as the respondents incorrectly claim.
Even if the operation of casinos could have been approved. In
compliance with the authority delegated to it by the Local Government Code, the
Government of Cagayan de Oro City has the right to ban them within its
jurisdiction. But the ordinance has to be valid so it does not contravene the
statute.
End of the Examination
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