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:
In my own
understanding, the following chain of custody to be followed:
The first chain of custody rule is the immediate marking and
labelling of the illegal
drugs or related items upon seizure and confiscation
is indispensable to ensure the integrity of the seized dangerous drugs and drug
related items.
Marking or labelling must be done
immediately in the presence of the three witnesses to the physical inventory
and photography of the illegal drugs or related items.
The three witnesses rule includes
the accused or the person/s from whom such items were confiscated and/or
seized, or his/her representative or counsel, with an elected public
official and a representative of the National
Prosecution Service or the media who shall be required to
sign the copies of the inventory and be given a copy.
It is also noted that the physical
inventory and photograph shall be executed at the exact place where the
search warrant is served; or at the nearest police station or at the
nearest office of the apprehending officer/team, whichever is practicable.
Next would be the issuance of the
certificate of the forensic laboratory examination results, which shall be done
by the forensic laboratory examiner, shall be issued immediately upon the
receipt of the subject item/s. If the laboratory examination is not completed
within the time frame, a partial lab exam result will be issued provisionally,
provided, that a final certification shall be issued immediately upon
completion of the said examination and certification.
Noncompliance of these requirements
without justifiable reasons, shall render void and invalid on such seizures and
custody over said items.
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, 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 correct.
This is the same in the Madrilejos case, where the officers and
publishers of seven men's magazines and tabloids has informed the Court that
the Office of the Prosecutor’s Office had already made a resolution dismissing
the same charges for violation of Art. 200/201 and under the Ordinance No. 7780
of the City of Manila.
In such case, the dismissal of the criminal charges against the
respondents is clearly rendered moot and academic. A moot and academic case is one that
ceases to present a justiciable controversy by virtue of supervening events, so
that a declaration thereon would be of no practical use or value. Generally,
courts decline jurisdiction over such case or dismiss it on ground of mootness.
(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:
According to the
dissenting opinion of Justice Leonen, an
ordinance with terms so broad and vague that it easily allows repeated
prosecution, chilling both creative and political expression, is unconstitutional.
It violates the fundamental tenets of both free expression and due process of
law. Good intentions are never sufficient. Laws pertaining to restrictions of
expression must be clearly articulated so that they could not provide any
possibility for abuse.
The
requisites fir an ordinance to be valid are as follows:
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 pubic policy and
6.
It
must not be 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:
The
petition was dismissed on the following grounds:
(1)
The dismissal of the criminal charges against petitioners for violation of the
provisions of Ordinance No. 7780 has rendered this case moot and academic;
In such instance of moot and academic,
there is no actual substantial
relief which a petitioner would be entitled to, and which will anyway be negated by the dismissal of the basic petition. When its purpose has become out-of-date or when it ceases to present a justiciable
controversy owing to the onset of supervening
events, so that a resolution of the case or a declaration
on the issue would be of no
practical value or use.
(2)
Ordinance No. 7780, an anti-obscenity law, cannot be facially attacked on the
ground of overbreadth because obscenity is unprotected speech.
Obscenity has
always been considered an unprotected speech. Before speech may be considered
obscene (unprotected speech) it must first be declared by the legislation to be
so. The law has to embrace the idea of any speech or expression that is
obscene. Thus, anti-obscenity statutes may still be subjected to a
constitutional challenge to determine if they violate certain constitutional
freedoms. Only when the statute overcomes questions of overbreadth can any
speech or expression proscribed by it be considered obscene or unprotected
speech.
(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:
Petitioners
contest that Ordinance No. 7780 provides a definition of "obscene"
and "pornography" that disregards the Miller doctrine. They assert
that the standards in the Ordinance are vague as it uses expansive language,
which made it possible for the complaining pastors and preachers "to
impose upon the public what, in their religious estimation, is 'unfit to be
seen or heard' by the residents of Manila or what is violative of the
'proprieties of language or behavior.' They argue that these pastors or
preachers cannot be the "average person" referred to in Miller,
who may be called upon to apply contemporary community standards to determine
what is obscene.
Petitioners also
argue that Ordinance No. 7780 violates the guidelines in the Miller test
for the following reasons: (1) its expansive language fails to consider
contemporary community standards in its application; (2) it considers certain
acts as obscene without determining whether it was made in a patently offensive
manner; and (3) it fails to take into account whether a certain expression,
when taken as a whole, lacks serious literary, artistic, political, or
scientific value.
(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:
As pointed out in
the Madrilejos case, the "vagueness challenges in the First Amendment
context, like overbreadth challenges typically produce facial invalidation,
while statutes found vague as a matter of due process typically are invalidated
[only] 'as applied' to a particular defendant."
A statute may be
declared invalid if it is vague. Vague is when its provisions fail to
"inform those who are subject to it what conduct on their part will render
them liable to its penalties."
Specifically, a
statute or act suffers from the defect of vagueness when it lacks
comprehensible standards that men of common intelligence must necessarily guess
at its meaning and differ as to its application. It is repugnant to the
Constitution in two respects: (1) it violates due process for failure to accord
persons, especially the parties targeted by it, fair notice of the conduct to
avoid; and (2) it leaves law enforcers unbridled discretion in carrying out its
provisions and becomes an arbitrary flexing of the Government muscle.
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:
As the defense
counsel of Juan, I will invoke for his acquittal on the grounds of violating Article
III, Section 1 of the Constitution,
“SECTION 1. No person shall be deprived of life, liberty, or property
without due process of law, nor shall any person be denied the equal protection
of the laws.”
Just like in the case of Banding, a broken chain of custody of
evidence can be grounds for acquittal in criminal trials.
That the
discrepancy in the prosecution evidence on the identity of the seized and
examined shabu and that formally offered in court cannot but lead to serious
doubts regarding the origins of the shabu presented in court. This discrepancy
and the gap in the chain of custody immediately affect proof of the corpus
delicti without which the accused must be acquitted.
In
the case at bar, it is obviously wrong when the police officer under his
regular performance of official duty arrests the alleged Juan without a warrant
of arrest and noncompliance of Sec 21, RA 9165 and following the procedures.
RA 91665 mandates
to conduct physical inventory and take photographs "immediately after
seizure and confiscation" necessarily means that these shall be
accomplished at the place of arrest.
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?
Answer:
No, Anti-hazing law is not
unconstitutional. Under Section 14, P4 of the Anti- Hazing Law, the paragraph provides 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.
Is it a bill of attainder? What is a bill of attainder?
Answer:
No, it is not a bill of attainder.
A bill of attainder is a legislative act which inflicts
punishment without trial. Its essence is the substitution of a legislative for
a judicial determination of guilt — 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.
What do you mean by the term “constitutional presumption of innocence?
Answer:
It is a
Constitutional right guaranteed by the 1987 Constitution. Article III,
Sec. 14 (2) states that in all criminal prosecutions, the accused
is presumed innocent until proven guilty beyond reasonable doubt.
This outcome is infinitely better than imprisoning an innocent person.”
Is the law violative of said presumption?
Answer:
No, the law is not violative of said presumption. The constitutional presumption of
innocence 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. However, the prosecution must still prove the
guilt of the accused beyond reasonable doubt. The existence of a disputable presumption
does not preclude the presentation of contrary evidence.
(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?
Answer:
The rule on res inter alios acta provides that the
rights of a party cannot be prejudiced by an act, declaration, or omission of
another. Consequently, an extrajudicial confession is binding only on the
confessant, is not admissible against his or her co-accused and is considered
as hearsay against them.
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”?
Answer:
Cruel and unusual punishment measures a
particular punishment against society's prohibition
against inhuman treatment. It prevents the government from imposing a
penalty that is either barbaric or far too severe for the crime committed.
Cite some examples.
Answer:
Examples includes, execution
of those who are insane; exposure to the direct sunlight for several hours
while standing and hands are tied; for life sentencing a prisoner just by
forging a cheque for a small amount of 10,000.0 pesos. Life sentencing a
juvenile delinquent who has not committed murder.
Is reclusion perpetua as a punishment “cruel”? Explain as to how the
Supreme Court ruled on said claims.
Answer:
According to the Supreme Court, they claimed
that the penalty of reclusion perpetua that will be imposed is
not cruel and unusual punishment as according to the Supreme Court it is
consistent with the cases of Furman v. Georgia and Perez v.
People, where the 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.
Answers:
A. 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. In short, the prosecutor must prove that the
sale took place, and that the accused was the seller.
B. Chain
of custody is a legal term referring to the order and manner in which physical
or electronic evidence in criminal and civil investigations has been handled
C. Insulating witnesses is the the presence of the
three witnesses at the time of seizure and confiscation of the drugs must be
secured and complied with at the time of the warrantless arrest; such that they
are required to be at or near the intended place of the arrest so that they can
be ready to witness the inventory and photographing of the seized and
confiscated drugs “immediately after seizure and confiscation.”
D. I will presume my answer here is related to RA
9165.
Section 5 of RA 9165 is about the Sale, Trading, Administration, Dispensation, Delivery, Distribution and
Transportation of Dangerous Drugs and/or Controlled Precursors and Essential
Chemicals.
l The penalty of life
imprisonment to death and a fine ranging from Php 500K to 10M is imposed to any
person who is unauthorized to sell, deliver, give away to another, distribute
dispatch in transit or transport illegal drugs.
E. I will presume my answer here is related to RA 9165.
Section 11 of RA 9165 is: Possession of Dangerous Drugs.
l The penalty of life
imprisonment to death and a fine ranging from Five hundred thousand pesos
(P500,000.00) to Ten million pesos (P10,000,000.00) shall be imposed upon any
person, who, unless authorized by law, shall possess any dangerous drug in the
following quantities, regardless of the degree of purity thereof:
F. Strict Neutrality v. Benevolent Neutrality on religious freedom
Answer:
Strict Neutrality is the separation - strict or tame - protects the principle of
church-state separation with a rigid reading of the principle while benevolent
neutrality protects religious realities, tradition and established practice
with a flexible reading of the principle.
G. Miller Test on obscenity.
Miller is a test to determine what is obscene or
not, its proper application is to "zero-in" on the actual material.
In this regard, Miller is not – strictly speaking – the
test to determine the constitutionality of a particular ordinance or statute.
However, this does not mean that the Miller parameters
are completely taken out of the equation in constitutional entreaties related
to free speech issues. Since Miller provides the prevailing proper
standard to determine what is obscene, an obscenity regulation that fails to
take into account Miller's three (3) parameters effectively
foists an over broad definition of obscenity and therefore, dangerously
suppresses what should have been protected speech or expressions.
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?
Answer:
In
my opinion, there will be no double jeopardy on this situation. The court can
convict him with the murder committed under the RPC. Also, in PD 1866
the court can also convict the accused.
(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:
The
accused can be convicted of simple illegal possession of firearms, provided
that ‘no other crime was committed by the person arrested’. If the intention of
the law in the second paragraph were to refer only to homicide and murder, it
should have expressly said so, as it did in the third paragraph. The law is
clear. Verily, where the law does not distinguish, neither should we.
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 Waters petitioners.
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-Ã -vis the first, second and third
contentions.
Answers:
Based on my
answers in question #2, The requisites for an
ordinance to be valid are as follows:
l It must not contravene the
Constitution or any statute
l It must not be unfair or oppressive
l It must not be partial or
discriminatory;
l It must not prohibit but may
regulate trade;
l It must be general and consistent
with pubic policy and
l It must not be unreasonable
In the first
contention the ordinance is not valid as it must not prohibit but to regulate
only.
The second
contention, the ordinance is being oppressive and discriminatory making it invalid. Standard guidelines or
criteria should be imposed in issuance of permits.
The third
contention, the ordinance here is being unreasonable for being without any
distinction whether it was caught or gathered through lawful fishing method.
This makes the ordinance invalid.
8. An Ordinance
is passed, with the pertinent provisions: (1)All public lands within Baguio town
site 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:
Yes,
the said ordinance is valid as it complies the requisites for an ordinance to be valid. It has uphold the
interest of the common good.
Requisites:
l It must not contravene the
Constitution or any statute
l It must not be unfair or oppressive
l It must not be partial or
discriminatory;
l It must not prohibit but may
regulate trade;
l It must be general and consistent
with pubic policy and
l It must not be unreasonable
In the case of City of Baguio where and ordinance was passed to legalize
the squatting of land.
It carried out its social re-adjustment
policies,where the government have not simply lay aside moral standards, and
aim to favor usurpers, squatters, and intruders, unmindful of the lawful and
unlawful origin and character of their occupancy. Such a policy would
perpetuate conflicts instead of attaining their just solution.
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 the case at bar, the residence of Saludo is Ichon, Macrohon, Southern Leyte. The term "resides" as employed in the rule on venue
on personal actions filed with the courts of first instance means the place of
abode, whether permanent or temporary, of the plaintiff or the defendant, as
distinguished from "domicile" which denotes a fixed permanent
residence to which, when absent, one has the intention of returning.
Residence in civil law is a
material fact, referring to the physical presence of a person in a place. A
person can have two or more residences, such as a country residence and a city
residence. Residence is acquired by
living in a place; on the other hand, domicile can exist without actually
living in the place. The important thing for domicile is that, once residence
has been established in one place, there be an intention to stay there
permanently, even if residence is also established in some other place.
There is a difference between domicile and
residence. Residence is used to indicate a place of abode, whether permanent or
temporary; domicile denotes a fixed permanent residence to which when absent,
one has the intention of returning. A man may have a residence in one place and
a domicile in another. Residence is not domicile, but domicile is residence
coupled with intention to remain for an unlimited 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. His place of residence generally is his place of domicile,
but is not by any means, necessarily so since no length of residence without intention
of remaining will constitute 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, 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.
End
of the Examination
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