final mawile vanessa

 

MAWILE, Vanessa R.        JD-1

CONSTITUTIONAL LAW 1           FINAL EXAMINATION

 

1.  Answer: The apprehending officers immediately after confiscation has to conduct inventory and photograph of the seized items in the present of the accused, an elected official in that place they are in, a representative of the Department of Justice or the media, who are required to sign the inventory. This inventory has to be conducted in the same place or if found unsafe in the nearest police station. Failure to observe this procedure, even the absence of one witness without justifiable reason, would wipe out proof of guilt beyond reasonable doubt and would mean acquittal of the accused or the one possessing the said drugs.

2.  (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: No. They are not correct. Art. 200 of the RPC is not applicable in this case and the subject of the complaint is already covered in Art 201.

 

(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 case was dismissed citing that said ordinance is not unconstitutional.

Moreover, requisites for a valid ordinance according to our settled jurisprudence are: (1) it must not contradict to our Constitution or to any statute; (2) it has to be fair; (3) it must not be discriminatory; (4) it must not prohibit trade, but it may regulate it; (5) it must be general and in accordance with public policy; (6) lastly it has to be reasonable.

 

(C)   Answer: The petition was dismissed because the case has become moot and academic and the ordinance cannot be facially attacked on the ground of overbreadth because obscenity is unprotected speech.

A moot and academic case is one that ceases to present a justiciable issue with the presence of supervening events, and that a declaration would be of no value. Moreover, overbreadth doctrine applies only to free speech.

 

 

(D)   Answer: The overbreadth and vagueness doctrines are applicable only to free speech cases. Thus, this rationale does not apply to penal statutes. Such as, in criminal cases where the law cannot take chances as in the area of free speech.

 

3. 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 illegal warrantless arrest. Under the law, warrantless arrest is valid only if the person to be arrested is in (a) flagrante delicto; (b) when an offense has just been committed and the arresting officer has probable cause to believe that the person to be arrested has committed it; and (c) when the person to be arrested is an escapee.

In the present case, the police officer cannot reasoned out that the arrest was done in flagrante delicto because it would be impossible for him to see, from a 10-meter distance, that what Juan is handing to Maria is actually shabu given the fact of how small the pack of a shabu is.

Hence, the arrest is invalid and would mean acquittal of the case.

 

 

4.  a. Answer: No, as cited in the case of Fuertes, 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. The law only regulates the act of hazing and in fact it prohibits and penalizes physical harm in such practice. Further, it is not a bill of attainder for a bill of attainder refers the imposition of a punishment, penal or otherwise, and the lack of judicial trial.

Moreover, the presumption of innocence is a basic constitutional principle. It places the prosecution on the burden of proving that an accused is guilty of the offense charged by proof beyond reasonable doubt. The said law is not violative of the said presumption. As cited again in Fuertes, it is not violated when there is a logical connection between the fact proved and the ultimate fact presumed.

(b) Answer: Res inter alios acta states that a party's rights generally cannot be prejudiced by another's action or omission. This concept helps guarantee due process even to convicted criminals. In the present case, public respondents claim that the penalty of reclusion perpetua that will be imposed is not cruel and unusual punishment. They argue that consistent with our settled jurisprudence penalties such as life imprisonment and even death may be imposed to discourage crimes harmful to public interest. As for the Anti-Hazing Law, reclusion perpetua is only imposable on the actual participants in the hazing, and only when the hazing results in death, rape, etc.

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.   A buy-bust operation is an entrapment where a police officer disguised himself as a buyer of illegal drugs in a transaction with a seller that they plan to catch.

 

b.   Chain of custody rule is the rule, laid out by law that should be followed in recording the sequence of custody or disposition of the item seized or the evidences.

 

c.   Insulating witnesses is composed of an elected official in the place where the event happen and a representative of Department of Justice or from the media. Their presence id indispensable and their absence would mean acquittal of the accused.

 

d.   Sec. 5 of the Revised Rules of Criminal Procedure lays down the instances where a warrantless arrest is lawful. First, in flagrante delicto - when the person to be arrested has committed, is actually committing, or is attempting to commit an offense. Second, when an offense has just been committed and the apprehending officer has probable cause to believe that the person to be arrested has committed it. Lastly, an escapee, when the person to be arrested is a prisoner who has escaped from a penal establishment.

 

e.   Sec. 11 of the Dangerous Drug Act of 2002 imposes the penalty of possessing illegal drugs- which life imprisonment.

 

f.  Strict Neutrality v. Benevolent Neutrality on religious freedom

Strict neutrality or otherwise known as separation 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.

g.   The Miller test consists of three parameters to determine whether or not a material is considered obscene or not. The guidelines are: first, whether to the average person, would find the work appeals to the prurient interest or sexual matters; second, whether the work describes, in an offensive way, a sexual conduct; and lastly, whether the work, lacks literary, artistic, political, or scientific value.

 

6.  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)   There will be no double jeopardy in this situation. As discussed in Agote Case, if the

„other crime‟ is murder or homicide,  illegal possession of firearms becomes merely an aggravating circumstance, not a separate offense. In the present case, the other crime

is    murder    therefore    possession   of    illegal   firearm    constitutes   an    aggravating circumstance and the court cannot convict him for the said two offenses.

 

(2)   The Agote doctrine reads: “The law is clear, the accused can be convicted of simple illegal possession of firearms, provided that „no other crime was committed by the person arrested”. In the present case, the accused cannot be convicted of illegal possession of firearms because there was another crime committed which is murder. Hence, the accused is only criminally liable of murder.

 

 

7.  Answer:

Yes, the ordinance is valid. The ordinance was not violative of their preferential rights. This is a valid exercise of police power, 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 “preferential right” of subsistence fishermen to the use of marine resources is not at all absolute.

Moreover, 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.

 

 

8. Answer: No. The said ordinance is not valid. No disposition of public land could be made by the City of Baguio without prior legislative authority. The state possesses plenary power in law to determine recipients of public domain, and the Director of Lands the power of exclusive control, administration, disposition and alienation of public land. The squatters within the Baguio townsite are 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. 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:

Saludo‟s  residence  is  in  Makati  and  Leyte.  His  domicile  is  Leyte.  Residence  is used to indicate a place whether permanent or temporary, whereas domicile refers to a fixed permanent residence to which one has an intention of returning. In the instant case, since Saludo has a house in Makati City for the purpose of exercising his profession and also a house in Southern Leyte, for political purposes where he also lives or stays physically, personally and actually then he can have residences in these two places.

10.  Answer: No. The ordinances enacted are invalid. Ordinances should not contravene a statute. Municipal governments are only agents of the national government. Local Councils exercise only delegated powers conferred on them by the Congress as the national lawmaking body. The delegate cannot be superior to the principal or exercise powers higher than those of the latter. It is heresy to suggest that the local government units can undo the acts of Congress, from which they have derived their power in the first place.

Moreover, Casino gambling is authorized by a presidential decree. This decree has the status of a statute that cannot be nullified by a mere ordinance.