1. Define Police Power.
In such case, there is no compensable taking
It is the power vested in the legislature by the Constitution to make,
ordain, establish all manner of wholesome and reasonable laws for the
good and welfare of the State and its people. (ERMITA MALATE HOTEL
VS. CITY MAYOR, July 31, 1967)
2. What are the basic purposes/aspects of police power?
a. to promote the general welfare, comfort and convenience of the
people; (ASSOCIATION OF SMALL LANDOWNERS VS. SECRETARY, 175
SCRA 343; US VS. TORIBIO, 15 Phil. 85
b. to promote and preserve public health; (VILLANUEVA VS. CASTANEDA,
September 21, 1987; DECS VS. SAN DIEGO, 180 SCRA 533 [NMAT];
LORENZO VS. DIRECTOR OF HEALTH, 50 Phil. 595apprehend and
confine lepers in a leprosarium)
c. to promote and protect public safety; (AGUSTIN VS. EDU, 88 SCRA
195; TAXICAB OPERATORS VS. JUINIO, 119 SCRA 897 )
d. to maintain and safeguard peace and order; (GUAZON VS. DE VILLA)
e. to protect public morals; (DE LA CRUZ VS. PARAS, 123 SCRA 569;
ERMITA MALATE HOTEL VS. CITY MAYOR, July 31, 1967; JMM
PROMOTIONS VS. CA, 260 SCRA 319; VELASCO VS. VILLEGAS, February
13, 1983)
f. to promote the economic security of the people. (ichong vs.
hernandez, 101 Phil. 11155)
3. Distinguish Police Power with Power of Eminent Domain.
The distinctions are:
1. The power of eminent domain is the inherent right of the State
to condemn or to take private property for public use upon
payment of just compensation while police power is the power of
the state to promote public welfare by restraining and regulating
the use of liberty and property without compensation;
2. In the exercise of police power, enjoyment of a property is
restricted because the continued use thereof would be injurious to
public welfare.
provided none of the property interests is appropriated for the use
or for the benefit of the public. Otherwise, there should be
compensable taking if it would result to public use.
3. Properties condemned under police power are usually noxious or
intended for noxious purpose; hence , no compensation shall be
paid. Likewise, in the exercise of police power, property rights of
private individuals are subjected to restraints and burdens in
order to secure the general comfort, health and prosperity of the
state.(Didipio earth savers multi purpose association vs. denr sec.
Elisea gozu, et al., 485 scra 586)
4. What are the tests for a valid exercise of police power?
1. the interests of the public, not mere particular class, require the
exercise of police power; (LAWFUL SUBJECT)
2. the means employed is reasonably necessary for the
accomplishment of the purpose and not unduly oppressive to
individuals. (LAWFUL MEANS). In short, the end does not justify
the means.
5. Define Due Process.
Due process is a law which hears before it condemns, which proceeds
upon inquiry and renders judgment only after trial (Per Daniel Webster in
the DARTMOUTH COLLEGE CASE)
6. What are the Kinds of Due Process?
1. Substantive due process requires the intrinsic validity of
the law in interfering with the rights of the person to life, liberty or
property. In short, it is to determine whether it has a valid
governmental objective like for the interest of the public as
against mere particular class.
2. Procedural due process one which hears before it
condemns, or the procedure as pointed out by Daniel Webster.
7. What are the requisites of Judicial Due Process?
As held in BANCO ESPANOL VS. PALANCA, 37 Phil. 921. The
requisites are:
1. There must be an impartial court or tribunal clothed with judicial
power to hear and decide the matter before it;
2. Jurisdiction must be lawfully acquired over the person of the
defendant or over the property subject of the proceedings;
3. The defendant must be given the opportunity to be heard;
4. Judgment must be rendered only after lawful hearing.
8. What are the requisites of Due Process before administrative
bodies?
As held in TIBAY VS. CIR, 69 Phil. 635, the requisites are:
1. the right to a hearing which includes the right to present
evidence;
2. the tribunal must consider the evidence presented;
3. the decision must have something to support itself;
4. the evidence must be substantial;
5. the decision must be based on the evidence presented during
the hearing;
6. the tribunal or body must act on its own independent
consideration of the law or facts;
7. the board or body shall in all controversial questions, render its
decision in such a manner that the parties to the proceedings can
know the various issues involved.
9. If an accused was represented by a non-lawyer during the
trial of his criminal case, what right of the said accused was
violated? Is he entitled to a new trial?
If an accused was represented by a non-lawyer during the trial (though
he thought that he was a lawyer), his right to due process was violated
and therefore entitled to a new trial. (DELGADO VS. CA, November 10,
1986)
10. What are the requisites of Procedural Due Process in
disciplinary actions against students?
As held in GUZMAN VS. NU, 142 SCRA 706, the requisites are:
1. the students must be informed in writing of the nature and cause of
any accusation against them;
2. they shall have the right to answer the charges against them, with
the assistance of counsel;
3. they shall be informed of the evidence against them;
4. they shall have the right to adduce evidence in their own behalf;
5. the evidence must be duly considered by the investigating
committee or official designated by the school authorities to hear and
decide the case.
11. What are the requisites of Due Process before an employee
may be dismissed from his work?
The requisites of Due Process before the NLRC are:
1. Notice; and
2. Hearing
12. Is Due Process satisfied in administrative proceedings if the
respondent is not assisted by counsel?
There is no law, whether the Civil Service Act or the Administrative
Code of 1987, which provides that a respondent in an administrative
case should be assisted by counsel in order that the proceedings therein
is considered valid. Not only, that, petitioner herein was given the
opportunity several times to engage the services of a lawyer to assist
him but he confidently informed the investigators that he could protect
himself. (LUMIQUED VS. EXENEA, 282 SCRA 125)
13. What are the requisites for a valid classification?
As held in People vs. Cayat, 68 Phil. 12, the requisites are:
1. There must be real and substantial distinctions;
2. It must be germane tot he purposes of the law;
3. It must not be limited to existing conditions only; and
4. It must apply equally to all members of the same class.
14. Is there violation of the equal protection clause if policemen
who are charged of a criminal offense punishable for more than
six (6) years will remain suspended until after the his acquittal
unlike other public officers whose maximum suspension even
when facing graft and corrupt charges is only three (3) months?
No, there is no violation. In HIMAGAN VS. PEOPLE, the Supreme Court
held that the fact that policemen charged with a criminal offense
punishable by more than 6 years are to be suspended during the entire
duration of the case unlike other government employees is valid since it
rests on valid classification because policemen carry weapons and the
badge of the law which can be used to harass or intimidate witnesses
against them.
15. What are the requisites of a valid Search Warrant or
Warrant of Arrest?
No search warrant or warrant of arrest shall issue except
upon probable cause to be determined personally by the judge
after examination under oath or affirmation of the complainant
and the witnesses he may produce, and particularly describing
the place to be searched and the persons or things to be seized.
(Section 2, Art. III).
In addition, Rule 126 of the Rules on Criminal Procedure
requires that no warrant shall be issued for more than one (1)
specific offense and that in the implementation of a search
warrant when the respondent is not present, witnesses are
required. Finally, a Circular issued by the Supreme Court
requires that no warrant or warrant of arrest shall be
implemented during the night, week-ends or holidays, except in
exceptional circumstances.
NOTE: Under the Human Security Act/Anti-Terrorism Law, Republic Act
No. 9372, Approved on March 6, 2007 and effective on July 15, 2007
(This Law shall be automatically suspended one (1) month before and
two (2) months after the holding of any election) a person may be taken
into custody by the police if there is a written authorization by the Anti-
Terrorism Council and such detention may be extended upon written
approval of the Commission of Human Rights in case of actual or
imminent terrorist attack.
***Sec. 18. Period of detention without judicial warrant of arrest.-
The provisions of Article 125 of the Revised Penal Code, notwithstanding,
any police or law enforcement personnel, who, having been duly
authorized in writing by the Anti-Terrorism Council has taken
custody of a person charged with or suspected of the crime of terrorism
or the crime of conspiracy to commit terrorism shall, WITHOUT
INCURRING ANY CRIMINAL LIABILITY FOR DELAY IN THE DELIVERY OF
DETAINED PERSONS TO THE PROPER JUDICIAL AUTHORITIES, DELIVER
SAID CHARGED OR SUSPECTED PERSON TO THE PROPER JUDICIAL
AUTHORITY WITHIN A PERIOD OF THREE (3) DAYS counted from the
moment said charged or suspected person has been apprehended or
arrested, detained, and taken into custody by the said police, or law
enforcement personnel: Provided, That the arrest of those suspected of
the crime of terrorism or conspiracy to commit terrorism must result
from the surveillance under Section 7 and examination of bank deposits
under Section 27 pf this Act.
The police or law enforcement personnel concerned shall, before
detaining the person suspected of the crime of terrorism, present him or
her before any judge at the latters residence or office nearest the place
where the arrest took place at any time of the day or night. It shall be
the duty of the judge, among other things, to ascertain the identity of
the police or law enforcement personnel and the person or persons they
have arrested and presented before him or her, to inquire of them the
reasons why they have arrested the person and determine by
questioning and personal observation whether or not the subject has
been subjected to any physical, moral or psychological torture by whom
and why. The judge shall then submit a written report of what he/she
had observed when the subject was brought before him to the proper
court that has jurisdiction over the case of the person thus arrested.
The judge shall forthwith submit his report within 3 calendar days
from the time the suspect was brought to his/her residence or office.
Immediately after taking custody of a person charged with or
suspected of the crime of terrorism or conspiracy to commit terrorism,
the police or law enforcement personnel shall notify in writing the judge
of the court nearest the place of apprehension or arrest; provided, That
where the arrest is made during Saturdays, Sundays, holidays or after
office hours, the written notice shall be served at the residence of the
judge nearest the place where the accused was arrested. The penalty of
10 years and 1 day to 12 years imprisonment shall be imposed upon the
police or law enforcement personnel who fails to notify any judge as
provided in the preceding paragraph.
***Section 19. Period of Detention in the event of an actual or
imminent terrorist attack.- In the vent of an actual or imminent terrorist
attack,, suspects may not be detained for more than three days without
the written approval of a municipal, city, provincial or regional official of
a Human Rights Commission, or judge of the municipal, regional trial
court, the Sandiganbayan or a justice of the Court of Appeals nearest the
place of arrest. If the arrest is made during Saturdays, Sundays or
holidays, or after office hours, the arresting police of law enforcement
personnel shall bring the person thus arrested to the residence of any of
the officials mentioned above that is nearest the place where the
accused was arrested. The approval in writing of any of the said officials
shall be secured by the police or law enforcement personnel concerned
within five days after the date of the detention of the persons
concerned; Provided, however, That within three days after the
detention the suspects whose connection with the terror attack or threat
is not established, shall be released immediately.
16. In case the place to be searched as indicated in the Search
Warrant is erroneous because it is different from the place
mentioned by the applicants who searched the place indicated
by them in their affidavit, are the things seized admissible in
evidence?
No. As held in PEOPLE VS. CA, 291 SCRA 400, WHAT IS
MATERIAL IN DETERMINING THE VALIDITY OF A SEARCH IS THE
PLACE STATED IN THE WARRANT ITSELF, NOT WHAT THE
APPLICANTS HAD IN THEIR THOUGHTS, OR HAD REPRESENTED IN
THE PROOFS THEY SUBMITTED TO THE COURT ISSUING THE
WARRANT.
17. What are the different instances when a warrantless search
and seizure is allowed under our existing jurisprudence?
Warrantless search is allowed in the following instances:
1. customs searches;
2. searches of moving vehicle;
3. seizure of evidence in plain view;
4. consented searches;
5. search incidental to a lawful arrest; and
6. stop and frisk measures. (PEOPLE VS. ARUTA, 288 SCRA 626)
18. May a judge deputize his Clerk of Court to take the
deposition of the applicant for a Search Warrant subject to
clarificatory questions after his hearing in other cases?
No. As held in Bache vs. Ruiz, 37 SCRA 823, the examination of the
complainant ant the witnesses he may produce must be done personally
by the judge. Otherwise, the warrant shall be void. As such, the SC held
in PENDON VS. CA, November 16, 1990 that when the questions asked
to the applicant for a search warrant was pre-typed, the same is not
valid since there could have been no searching questions.
19. May a Search Warrant be issued for the crimes of Search
Warrant for estafa, falsification, tax evasion and insurance
fraud?
No, such would be a general warrant and violates the rule that a
warrant shall be issued for one (1) specific offense. (Asian Surety vs.
Herrera, 54 SCRA 312)
20. What is a Scatter-shot Warrant?
It is a search warrant issued for more than one (1) specific offense
like a search warrant issued for more than one specific offense like one
for estafa, robbery, theft and qualified theft. (TAMBASEN VS. PEOPLE,
July 14, 1995; PEOPLE VS. CA, 216 SCRA 101)
21. May a judge validly issue a Warrant of Arrest based from the
Information and the Resolution of the Prosecutor finding
probable cause against the accused?
No. There will be no basis for the issuance since the Prosecutor is neither
the complainant nor the witness to the case. He could not have
determined probable cause based from the said documents. (VICENTE
LIM,SR. AND MAYOR SUSANA LIM VS.HON. N. FELIX , G.R. NO.
99054-57). As held in the case of Soliven vs. Makasiar, decided under
the 1987 Constitution, the Court noted that the addition of the word
personally after the word determined and the deletion of the grant of
authority by the 1973 Constitution to issue warrants to other respondent
officers as to may be authorized by law does not require the judge to
personally examine the complainant and his witness in his determination
of probable cause for the issuance of a warrant of arrest.What the
Constitution underscores is the exclusive and personal responsibility of
the issuing judge to satisfy himself of the existence of probable cause.
Following established doctrine and procedures, he shall:
(1) personally evaluate the reports and the supporting documents
submitted by the fiscal regarding the existence of probable cause and,
on the basis thereof, issue a warrant of arrest;
(2) If on the basis thereof he finds no probable cause, he may disregard
the fiscals report and require the submission of supporting affidavits of
witnesses to aid him in arriving at a conclusion as to the existence of
probable cause.
The case of People vs. Honorable Enrique B. Inting reiterates the
following doctrines:
(1) The determination of probable cause is a function of the judge. It is
not for the Provincial Fiscal or Prosecutor nor for the Election Supervisor
to ascertain. Only the judge alone makes this determination.
(2) The preliminary inquiry made by the prosecutor does not bind the
judge. It merely assists him to make the determination of probable
cause. The judge does not have to follow what the prosecutors present
to him. By itself, the prosecutors certification of probable cause is
ineffectual. It is the report, the affidavits, the transcripts of stenographic
notes, and all other supporting documents behind the prosecutors
certification which are material in assisting the judge to make his
determination.
(3) Preliminary inquiry should be distinguished from the preliminary
investigation proper. While the former seeks to determine probable
cause for the issuance of warrant of arrest, the latter ascertains whether
the offender should be held for trial or be released.
22. As to the requirement that the judge must personally
determine probable cause, must he examine the complainant
and his witnesses face to face in order to comply with the said
constitutional provision?
It depends.
In connection with the issuance of a SEARCH WARRANT, he must
personally examine the complainant and the witnesses, with searching
questions, face to face.
In connection with the issuance of a warrant of arrest, however, the
word personally after the word determined does not necessarily
mean that the judge should examine the complainant and his witnesses
personally or face to face before issuing the warrant of arrest but the
exclusive responsibility on the part of said judge to satisfy himself of the
existence of probable cause. As such, there is no need to examine the
complainant and his witnesses face to face. It is sufficient if the judge is
convinced of the existence of probable cause upon reading the affidavits
or deposition of the complainant and his witnesses. SOLIVEN VS.
MAKASIAR, 167 SCRA 393
23. Is the judge bound by the findings of existence of probable
cause by the Prosecutor as indicated in his Certification in the
information so that the issuance of a warrant of arrest is only
ministerial? If not satisfied of the existence of probable cause,
may the judge require the Prosecutor to submit additional
evidence?
The judge is not bound by the findings of the Prosecutor because the
said finding is only probable cause that a crime was committed.
Probable cause to justify the issuance of a warrant of arrest is a judicial
function vested only in the judge. In fact, he can require the Prosecutor
to submit additional evidence if he is not convinced of the existence of
probable for the issuance of a warrant of arrest. (P. vs. Villanueva, 110
SCRA 465; Placer vs. Villanueva, 126 SCRA 463).
24. Is Operation Kapkap being done by the police because the
suspect has something bulging in his waist and keeps on
touching his abdomen as if touching a gun valid?
As held in PEOPLE VS. MENGOTE, G.R. No. 87059, June, 1992, 210 scra
174, Operation Kapkap or warrantless search without probable cause
is unconstitutional. Such search is valid only if covered by Section 5,
Article 113 of the Rules of Court which provides:
Sec. 5. Arrest without warrant; when lawful. - A peace officer or private
person may, without warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has
personal knowledge of facts indicating that the person to be arrested
has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a
penal establishment or place where he is serving final judgment or
temporarily confined while his case is pending, or has escaped while
being transferred from one confinement to another.
Compare this case to MANALILI VS. PEOPLE, October 9, 1997. The
policemen saw several suspicious looking men at dawn who ran when
they went near them. As the policemen ran after them, an unlicensed
firearm was confiscated. The search was declared valid by the Supreme
Court. Note, however, that in MALACAT VS. CA, 283 SCRA 159, the SC
held that mere suspicions not sufficient to validate warrantless arrest.
25. May the Iloilo Police arrests without warrant or search the
person disembarking from a ship passenger without warrant
based solely on an information relayed to them by an informant
that the suspects bag contains marijuana?
No. As held in PEOPLE vs. AMMINUIDIN, 163 SCRA 402 a warrantless
arrest of the accused was unconstitutional. This was effected while he
was coming down the vessel, to all appearances no less innocent than
the other disembarking passengers. He had not committed nor was
actually committing or attempting to commit an offense in the presence
of the arresting officers. He was not even acting suspiciously. In short,
there was no probable cause that, as the prosecution incorrectly
suggested, dispensed with the constitutional requirement of a warrant.
26. In arrests without warrant based on the fact that a crime
has just been committed, what kind of knowledge is required on
the part of the arresting officer?
In PEOPLE VS. GALVEZ, 355 SCRA 246, the Supreme Court held
that t he policeman arrested the accused-appellant on the basis solely
of what Reynaldo Castro had told him and not because he saw the
accused-appellant commit the crime charged against him. Indeed, the
prosecution admitted that there was no warrant of arrest issued against
accused-appellant when the latter was taken into custody. Considering
that the accused-appellant was not committing a crime at the time he
was arrested nor did the arresting officer have any personal knowledge
of facts indicating that accused-appellant committed a crime, his arrest
without a warrant cannot be justified.
27. What is the effect on the illegality of the arrest by the
subsequent act of the accused in posting bond for his
provisional liberty and entering a plea during his arraignment?
By entering a plea of not guilty during the arraignment, the accused-
appellant waived his right to raise the issue of illegality of his arrest. IT
IS NOW SETTLED THAT OBJECTION TO A WARRANT OF ARREST OR THE
PROCEDURE BY WHICH A COURT ACQUIRES JURISDICTION OVER THE
PERSON OF AN ACCUSED MUST BE MADE BEFORE HE ENTERS HIS PLEA,
OTHERWISE, THE OBJECTION IS DEEMED WAIVED. THE FACT THAT THE
ARREST WAS ILLEGAL DOES NOT RENDER THE SUBSEQUENT
PROCEEDINGS VOID AND DEPRIVE THE STATE OF ITS RIGHT TO CONVICT
THE GUILTY WHEN ALL THE FACTS POINT TO THE CULPABILITY OF THE
ACCUSED. (PEOPLE VS. GALVEZ, 355 SCRA 246)
28. Is a warrantless search and seizure by a private individual
valid?
Yes, since the constitutional provision is not applicable to him. (PEOPLE
OF THE PHILIPPINES VS. ANDRE MARTI, G.R. NO. 81561, January 18,
1991; SILAHIS INTERNATIONAL HOTEL, INC. VS. ROGELIO SOLUTA, ET
AL., 482 SCRA 660)
29. What are the requisites of a valid search incidental to a
valid arrest?
As held in NOLASCO VS. PANO, 139 SCRA 541, a search incidental to a
valid arrest must be done at the place where the accused is arrested. As
such, if accused was arrested while inside a jeepney, there is no valid
search incidental to a valid arrest if she will be brought to her residence
and thereafter search the said place. Or as held in ESPANO VS. CA, 288
SCRA 588, if the accused was arrested in the street during a buy-bust
operation, the search of his house nearby is not a valid search incidental
to a valid arrest.
30. If the accused was validly arrested without warrant inside a
night club for illegal possession of firearm, may the arresting
officers validly search his car parked several meters from the
place of arrest based on search incidental to a valid arrest?
Where the gun tucked in a persons waist is plainly visible to the police,
no search warrant is necessary and in the absence of any license for
said firearm, he may be arrested at once as he is in effect committing a
crime in the presence of the police officers. No warrant is necessary in
such a situation, it being one of the recognized exceptions under the
Rules. As a consequence of the accuseds valid warrantless arrest inside
the nightclub, he may be lawfully searched for dangerous weapons or
anything which may be used as proof of the commission of an offense,
without a search warrant in accordance with Section 12, Rule 126. This is
a valid search incidental to a lawful arrest.
In fact, the subsequent discovery in his car which was parked in a
distant place from where the illegal possession of firearm was
committed [after he requested that he will bring his car to the Police
Station after his warrantless arrest) , of a drug paraphernalia and shabu,
CANNOT BE SAID TO HAVE BEEN MADE DURING AN ILLEGAL SEARCH
because of his consent, not due to search incidental to a valid arrest. As
such, the items do not fall under the exclusionary rule and the
unlicensed firearms, drug paraphernalia and the shabu, can be used as
evidence against the accused. (PEOPLE VS. GO, 354 SCRA 338)
31. May the police authorities validly search the rented
apartment of a suspect without a search warrant or without the
consent of the said person BUT WITH THE CONSENT OF THE
OWNER OF THE APARTMENT?
No. PEOPLE VS. DAMASO, 212 SCRA 547 abandoned the ruling in
Lopez vs. Commissioner. In order that there is a valid consent to a
warrantless search, the consent must come from the person directly
affected by said warrantless search.
32. What is the plain view doctrine in connection with
warrantless search and seizure?
As held in PEOPLE VS. VALDEZ, 341 SCRA 25, the plain view
doctrine, which may justify a search without warrant, APPLIES
ONLY WHERE THE POLICE OFFICER IS NOT SEARCHING FOR
EVIDENCE AGAINS THE ACCUSED, BUT INADVERTENTLY COMES
ACROSS AN INCRIMINATING OBJECT. As such, plain view
doctrine could not be used to justify the seizure of an
unlicensed firearm in People vs. Damaso, supra, which was seen
on top of a table after the opening of the apartments door
without a warrant nor consent of the occupant therein.
33. Define probable cause in connection with the issuance of a
search warrant.
The probable cause for a valid search warrant, has been defined as
such facts and circumstances which would lead a reasonably discreet
and prudent man to believe that an offense has been committed, and
that the objects sought in connection with the offense are in the place
sought to be searched. (Quintero vs. NBI, June 23, 1988). This probable
cause must be shown to be within the personal knowledge of the
complainant or the witnesses he may produce and not based on mere
hearsay. (P. VS. SY JUCO, 64 PHIL. 667; ALVAREZ VS. CFI, 64 PHIL. 33; US
VS. ADDISON, 28 PHIL. 566).
34. What is the sufficiency test in connection with
applications for a search warrant?
The true test of sufficiency of a deposition or affidavit to warrant
issuance of a search warrant is whether it was drawn in a manner that
perjury could be charged thereon and the affiant be held liable for
damage caused. The oath required must refer to the truth of the facts
within the personal knowledge of the applicant of a search warrant
and/or his witnesses, not of the facts merely reported by a person whom
one considers to be reliable. (DR. NEMESIO PRUDENTE VS. THE HON.
EXECUTIVE JUDGE ABELARDO M. DAYRIT, RTC 33, Manila & People of the
Philippines, GR No. 82870, December 14, 1989)
35. May the police and military authorities validly search the
citizens without warrant in checkpoints set up by them? What is
the extent of the search that they may conduct?
In RICARDO VALMONTE VS. GEN RENATO DE VILLA, GR No. 83988,
September 29, 1989, the Supreme Court held that warrantless searches
and seizures in military and police checkpoints are not illegal as these
measures to protect the government and safeguards the lives of the
people. The checkpoints are legal as where the survival of the organized
government is on the balance, or where the lives and safety of the
people are in grave peril. However, the Supreme Court clarified that the
military officers manning the checkpoints may conduct VISUAL SEARCH
ONLY, NOT BODILY SEARCH.
36. Is an unlicensed firearm seized in the house of the accused
without warrant by the military authorities, after they were
given consent by the said owner of the house for them to search
for rebel soldiers, admissible in evidence?
No. In VEROY VS. LAYAGUE, 210 SCRA 97, the Supreme Court
held that the owner of the house allowed the policemen to enter his
house because they will be searching for rebel soldiers but when inside
the house, they instead seized an unlicensed firearm. As such, there was
no consent to search for firearms and as a consequence, the firearm is
not admissible as evidence.
37. If the judge finds that theres probable cause, must he issue
a warrant of arrest as a matter of course?
It depends:
1. SAmulde vs. Salvani, September 26, 1988 (No because a
warrant is issued in order to have jurisdiction of the court over the
person of an accused and to assure the court of his presence
whenever his case is called in court. As such, if the court believes
that the presence of the accused could be had even without a
warrant of arrest, then he may not issue said warrant. Note: This
case involves a minor offense)
2. GOZO VS. TAC-AN, 300 SCRA 265. If the offense committed is
a serious one like that obtaining in this case for murder, the Judge
must issue a warrant of arrest after determining the existence of
probable cause)
38. If the applicant for a search warrant testifies that his
knowledge of the facts and circumstances was derived from a
highly reliable informant, would such fact sufficient to
convince the court of the existence of probable cause?
No, knowledge based on hearsay information does not justify the
existence of probable cause. (Prudente vs. Dayrit, supra.) In fact, when
the statements in the affidavits of witnesses are mere generalities, mere
conclusions of law, and not positive statements of particular acts, the
warrant issued by virtue thereof is not valid. Ponsica vs. Ignalaga, July
31,1987)
39. In the seizure of alleged pirated tapes, what must the
applicant submit to the court in order that the search warrant to
be issued shall be valid?
In Century Fox vs. CA, 164 SCRA 655 and COLUMBIA PICTURES VS.
CA, 261 SCRA 144, it was held that the master copy of the allegedly
pirated tape should be presented before the judge in order to convince
him of the existence of probable cause)
40. What is the effect on the evidence obtained in violation of
Sections 2 and 3 of Article III?
Any evidence obtained in violation of Sections 2 and 3 of Article III
shall be inadmissible for any purpose in any proceeding.
41. Under the Human Security Act/Anti-Terrorism Law, Republic
Act No. 9372, Approved on March 6, 2007 and effective on July
15, 2007, may police authorities the listen to, intercept and
record, with the use of any mode, form or kind or type of
electronic or other surveillance equipment or intercepting and
tracking devices, or with the use of any other suitable ways or
means for that purpose, any communication, message,
conversation, discussion, or spoken or written words of a person
without violating the right to privacy?
Yes under Sections 7 and 8 of the law which provides:
Section 7. Surveillance of suspects and interception and
recording of communications. The provisions of RA 4200 (Anti-
Wiretapping Law) to the contrary notwithstanding, a police or law
enforcement official and the members of his team may, upon a written
order of the Court of Appeals, listen to, intercept and record, with the
use of any mode, form or kind or type of electronic or other surveillance
equipment or intercepting and tracking devices, or with the use of any
other suitable ways or means for that purpose, any communication,
message, conversation, discussion, or spoken or written words between
members of a judicially declared and outlawed terrorist organization,
association, or group of persons or of any person charged with or
suspected of the crime of terrorism or conspiracy to commit terrorism.
Provided, That surveillance, interception and recording of
communications between lawyers and clients, doctors and patients,
journalists and their sources and confidential business correspondence
shall not be authorized.
Section 8. Formal Application for Judicial Authorization.- The
written order of the authorizing division of the Court of Appeals to track
down, tap, listen, intercept, and record communications, messages,
conversations, discussions, or spoken or written words of any person
suspected of the crime of terrorism or the crime of conspiracy to commit
terrorism, shall only be granted by the authorizing division of the Court
of Appeals UPON AN EX-PARTE written application of a police or law
enforcement official who has been duly authorized in writing by the Anti-
Terrorism Council created in Section 53 of this Act to file such ex-parte
application, and upon examination under oath and affirmation of the
applicant and the witnesses who may produce to establish:
That there is probable cause to believe based on personal
knowledge of facts and circumstances that the said crime of
terrorism or conspiracy to commit terrorism has been committed,
or is being committed, or is about to be committed;
That there is probable cause to believe based on personal
knowledge of facts and circumstances that evidence which is
essential to the conviction of any charged or suspected person
for, or to the solution or prevention of any such crimes, will be
obtained; and
That there is no other effective means readily available for
acquiring such evidence.
Section 9. Classification and Contents of the Order of the Court.
The written order granted by the authorizing division of the Court of
Appeals as well as its order, if any, to extend or renew the same, the
original application of the applicant, including his application to extend
or renew, if any, and the written authorizations of the Anti-Terrorism
Council shall be deemed and are hereby declared as classified
information: Provided, That the person being surveilled or whose
communications, letters, papers, messages, conversations, discussions,
spoken or written words and effects have been monitored, listened to,
bugged or recorded by law enforcement authorities has the right to be
informed of the acts done by the law enforcement authorities in the
premises or to challenge, if he or she intends to do so, the legality of the
interference before the Court of Appeals which issued said written order.
The written order of the authorizing division of the court of Appeals shall
specify the following:
The identity, such as name and address, if known, of the
charged of suspected persons whose communications, messages,
conversations, discussions, or spoken or written words are to be
tracked down, tapped, listened to, intercepted or recorded and, in
case of radio, electronic, or telephone (whether wireless or
otherwise) communications, messages, conversations,
discussions, or spoken or written words, the electronic
transmission systems or the telephone numbers to be tracked
down, tapped, listened to, intercepted, and recorded and their
locations if the person suspected of the crime of terrorism or
conspiracy to commit terrorism is not fully known, such person
shall be subject to continuous surveillance provided there is
reasonable ground to do so;
The identity (name and address, and the police or law
enforcement organization) of the members of his team judicially
authorized to track down, tap, listen to, intercept, and record the
communications, messages, conversations, discussions, or spoken
or written words;
The offense or offenses committed, or being committed, or
sought to be prevented; and
The length of time which the authorization shall be used or
carried out.
Section. 10. Effective Period of Judicial Authorization. Any
authorization granted by the authorizing division of the court of
Appealsshall only be effective for the length of time specified in the
written order of the authorizing division of the Court of Appeals, which
shall not exceed 30 days from the date of receipt of the written order of
the authorizing division of the court of Appeals by the applicant police or
law enforcement official.
The CA may extend or renew the said authorization for another
non-extendible period, which shall not exceed 30 days from the
expiration of the original periodThe ex-parte application for renewal
has been duly authorized by the Anti-terrorism Council in writing.
42. Under the Human Security Act/Anti-Terrorism Law, Republic
Act No. 9372, Approved on March 6, 2007 and effective on July
15, 2007, may police authorities examine the bank accounts of
individuals without violating their right to privacy?
Yes under Sections 27 and 28 of the said law. It provides:
Section 27. Judicial authorization required to examine bank
deposits, accounts and records.
The justices of CA designated as special court to handle anti-
terrorism cases after satisfying themselves of the existence of probable
cause in a hearing called for that purpose that:
A person charged with or suspected of the crime of terrorism or
conspiracy to commit terrorism;
Of a judicially declared and outlawed terrorist organization or
group of persons;
Of a member of such judicially declared and outlawed
organization, association or group of persons, may authorize in
writing any police or law enforcement officer and the members of
his team duly authorized in writing by the anti-terrorism council
to:
1. examine or cause the examination of, the deposits,
placements, trust accounts, assets, and records in a bank
or financial institution; and
2. gather or cause the gathering of any relevant
information about such deposits, placements, trust
accounts, assets, and records from a bank or financial
institution. The bank or financial institution shall not refuse
to allow such examination or to provide the desired
information, when so ordered by and served with the
written order of the Court of Appeals.
Sec. 28. Application to examine deposits, accounts and records.
The written order of the CA authorizing the examination of bank
deposits, placements, trust accounts, assets and records:
A person charged with or suspected of the crime of terrorism or
conspiracy to commit terrorism;
Of a judicially declared and outlawed terrorist organization or
group of persons;
Of a member of such judicially declared and outlawed
organization, association or group of persons, in a bank or
financial institution-
SHALL ONLY BE GRANTED BY THE AUTHORIZING DIVISION OF THE
CA UPON AN EX-PARTE APPLICATION TO THAT EFFECT OF A POLICE OR
LAW ENFORCEMENT OFFICIAL who has been duly authorized by the Anti-
Terrorism Council to file such ex-parte application and upon examination
under oath or affirmation of the applicant and his witnesses he may
produce to establish the facts that will justify the need and urgency of
examining and freezing the bank deposits, placements, trust accounts,
assets and records:
Of A person charged with or suspected of the crime of terrorism
or conspiracy to commit terrorism;
Of a judicially declared and outlawed terrorist organization or
group of persons;
Of a member of such judicially declared and outlawed
organization, association or group of persons.
43. May a wife validly seize the diaries, checks and greeting
cards of the alleged paramours of her husband and use the
same as evidence in a legal separation case between them?
As held in ZULUETA VS. CA, February 10, 1996, the evidence
obtained by the wife who forcibly opened the drawers at the clinic of her
doctor-husband and took diaries, checks and greeting cards of his
alleged paramours is inadmissible as evidence. This is so because the
intimacies of husband and wife does not justify the breaking of cabinets
to determine marital infidelity.
43. Is the freedom of speech and expression affected by the
Human Security Act?
Yes, under Section 26 of the law, it provides that persons who
have been charged with terrorism or conspiracy to commit terrorism
even if they have been granted bail because evidence of guilt is not
strongcan be: Prohibited from using any cellular phones, computers,
or other means of communications with people outside their residence.
44. What is the rule on criticisms on the acts of public officers?
 A public official should not be too onion-skinned with reference to
comments upon his official acts. The interest of the government and the
society demands full discussion of public affairs. (US vs. Bustos, 37 Phil.
731)
45. May the above rule applicable to private individuals who are
public figures or private individuals who are candidates for
public office?
As held by the Supreme Court in the case of BAGUIO MIDLAND
COURIER & CECILLE AFABLE VS. COURT OF APPEALS & RAMON LABO, JR.,
444 SCRA 28 [November 25, 2004 , the article involving a private
individual running for Mayor of Baguio City is still within the mantle of
protection guaranteed by the freedom of expression provided in the
Constitution since it is the publics right to be informed of the mental,
moral and physical fitness of candidates for public office. This was
recognized as early as the case of US VS. SEDANO, 14 Phil. 338 [1909]
and the case of NEW YORK TIMES VS. SULLIVAN, 376 U.S. 254 where the
US Supreme Court held:
It is of the utmost consequence that the people should
discuss the character and qualifications of candidates for their
suffrages. The importance to the State and to society of such
discussions is so vast, and the advantages derived so great,
that they more than counterbalance the inconvenience of
private persons whose conduct may be involved, and occasional
injury to the reputations of individuals must yield to the public
welfare, although at times such injury may be great. The public
benefit from publicity is so great and the chance of injury to
private character so small, that such discussion must be
privileged.
Clearly, the questioned articles constitute fair
comment on a matter of public interest as it dealt with the
character of the private respondent who was running for the top
elective post in Baguio City at that time.
46. May the COMELEC validly prohibit columnists, radio
announcers and TV commentator for commenting for or against
any issue during the plebiscite period since they can air their
views in a program sponsored by the COMELEC itself?
No, such would be an undue interference on the freedom of expression.
IT IS STILL A RESTRICTION ON THE COLUMNIST, ANNOUNCER OR
COMMENTATORS CHOICE OF THE FORUM WHERE HE MAY EXPRESS HIS
VIEW. Plebiscite issues are matters of public concern and importance.
The peoples right to be informed and to be able to freely and
intelligently make a decision would be better served by access to an
unabridged discussion of the issues, INCLUDING THE FORUM. The people
affected by the issues presented in a plebiscite should not be unduly
burdened by restrictions on the forum where the right to expression may
be exercised. (PABLITO V. SANIDAD VS. COMELEC, G.R. NO. 90878,
January 29, 1990)
47. What are the requisites that a newspaper must comply in
order that its news item on an ongoing trial in court will not be
actionable for being libelous?
In Elizalde vs. Gutierrez,76 SCRA 448, it was held that in order that
any news item relating to a judicial proceeding will not be actionable,
the same must be [a] a true and fair report of the actual proceedings;
[b] must be done in good faith; and [c] no comments nor remarks shall
be made by the writer}
48. What are the tests of obscenity?
The three (3) tests as held in Miller vs. California, 37 L. Ed. 2d 419
are:
1. Whether the average person applying to contemporary
community standards would find the work appeals to prurient
interest;
2. Whether the work depicts or describes a patently offensive
sexual conduct;
3. Whether the work as a whole lacks serious literary , artistic,
political or scientific value.
49. May the City Mayor order the confiscation without a search
warrant magazines which he believes to be obscene? What is
the correct procedure for him to follow?
No. (Pita vs. CA, 178 SCRA 362). A City Mayor may not order the
warrantless seizure of magazines which he believes to be obscene;
otherwise, he will become the complainant, prosecutor and judge at the
same time. He should obtain a search warrant from a judge by following
the procedure laid down by the Rules on how to secure a search warrant.
50. May public school teachers validly file mass leaves, instead
of going on strike, after their demand to the government was
not met.
In GESITE et al. vs. COURT OF APPEALS, 444 SCRA 51 held
that these mass actions were to all intents and purposes a
strike; they constituted a concerted and unauthorized stoppage
of, or absence from, work which it was the teachers duty to
perform, undertaken for essentially economic reasons. It is
undisputed fact that there was a work stoppage and that
petitioners purpose was to realize their demands by
withholding their services. The fact that the conventional term
strike was not used by the striking employees to describe
their common course of action is inconsequential, SINCE THE
SUBSTANCE OF THE SITUATION, AND NOT ITS APPEARANCE, WILL
BE DEEMED CONTROLLING.
The right of government employees to organize IS LIMITED
TO THE FORMATIONS OF UNIONS OR ASSOCIATIONS ONLY,
WITHOUT INCLUDING THE RIGHT TO STRIKE. (Bangalisan vs. CA,
276 SCRA 619)
51. What is the procedure to be followed in the application of
rally permits before the City or Municipal Mayor in accordance
with BP Bilang 880?
The applicants for a permit to hold an assembly should inform the
licensing authority of the date, the public place where and the
time when it will take place. If it were a private place, only the consent
of the owner or the one entitled to its legal possession is required. Such
application should be filed well ahead in time to enable the public official
concerned to appraise whether there may be valid objections to the
grant of the permit or to its grant but at another public place. It is an
indispensable condition to such refusal or modification that the clear and
present danger test be the standard for the decision reached. If he is of
the view that there is such an imminent and grave danger of a
substantive evil, the applicants must be heard on the matter. Thereafter,
his decision, whether favorable or adverse, must be transmitted to them
at the earliest opportunity. Thus if so minded, they can have recourse to
the proper judicial authority. (BAYAN, KARAPATAN, KILUSANG
MAGBUBUKID NG PILIPINAS (KMP), and GABRIELA vs. EDUARDO
ERMITA, in his capacity as Executive Secretary, Manila City Mayor LITO
ATIENZA, Chief of the Philippine National Police, Gen. ARTURO M.
LOMIBAO, NCRPO Chief Maj. Gen. VIDAL QUEROL, and Western
Police District Chief Gen. PEDRO BULAONG, G.R. No. 169848, May,
2006)
52. Is BP 880 unconstitutional for being vague (Void for
Vagueness Doctrine) and overbroad (Overbreadth Doctrine)?
No. It is very clear that it deals only on public assemblies that
deals with rallies, mass actions and similar acts and not all kinds of
public assemblies. As such, it is not vague.
Neither is the law overbroad. It regulates the exercise of the right
to peaceful assembly and petition only to the extent needed to avoid a
clear and present danger of the substantive evils Congress has the right
to prevent.
53. Is the Calibrated Pre-emptive Response (CPR) of the Arroyo
Administration towards rallyists constitutional?
The Court reiterates its basic policy of upholding the fundamental
rights of our people, especially freedom of expression and freedom of
assembly. For this reason, the so-called calibrated preemptive response
policy, the policy of dispersing rallyists through water cannons, has no
place in our legal firmament and must be struck down as a darkness
that shrouds freedom. It merely confuses our people and is used by
some police agents to justify abuses. On the other hand, B.P. No. 880
cannot be condemned as unconstitutional; it does not curtail or unduly
restrict freedoms; it merely regulates the use of public places as to the
time, place and manner of assemblies. Far from being insidious,
maximum tolerance is for the benefit of rallyists, not the government.
The delegation to the mayors of the power to issue rally permits is
valid because it is subject to the constitutionally-sound clear and
present danger standard. (BAYAN, KARAPATAN, KILUSANG
MAGBUBUKID NG PILIPINAS (KMP), and GABRIELA vs. EDUARDO
ERMITA, in his capacity as Executive Secretary, Manila City Mayor LITO
ATIENZA, Chief of the Philippine National Police, Gen. ARTURO M.
LOMIBAO, NCRPO Chief Maj. Gen. VIDAL QUEROL, and Western
Police District Chief Gen. PEDRO BULAONG, G.R. No. 169848, May,
2006)
54. Distinguish clear and present danger, dangerous
tendency rule and balancing of interest test.
Clear and present danger and dangerous tendency rule (whether
the words used in such circumstances and are of such a nature as to
create a clear and present danger that they will bring about the
substantive evils that the State has the right to prevent)
Dangerous tendency rule (If the words uttered create a dangerous
tendency which the State has the right to prevent, then such words are
punishable)
The balancing-of-interest test (When a particular conduct is
regulated in the interest of the public order, and the regulation results in
an indirect, conditional, partial abridgment of speech, the duty of the
courts is to determine which of the 2 conflicting interests demand
greater protection under the circumstances presented.)
55. May Senator Juan Ponce Enrile prevent the movie producer
of the EDSA I Revolution movie from including his participation
during the uprising since it violates his right to privacy?
No, as between Enriles right to privacy and the freedom of
expression on the part of the movie producer, the latters right prevail
because Enriles part in the movie deals solely on his acts as a public
officer then. To exclude him as integral part of the revolution would be a
distortion of history. (AYER PRODUCTION VS. JUDGE CAPULONG, JUAN
PONCE ENRILE, ET AL., 160 SCRA 861)
56. May the mother of a murdered Mayor stop the filming of the
life story of her son which would include his alleged love
affairs which would blacken his memory?
Yes. As between the right to privacy invoked by the mother and
the freedom of expression invoked by the movie producer, the state
shall balance their respective interests. Since the movie producer is
primarily after profits only, the right to privacy shall prevail. (Lagunzad
vs. Gonzales).
57. What are the two (2) aspects of the RIGHT TO RELIGIOUS
PROFESSION AND WORSHIP ? Distinguish each.
1. Freedom to believe; and
2. Freedom to act.
IN the first, such freedom is absolute. He may indulge in his own
theories about life and death; worship any god he chooses, or none at
all. He may not be punished even if he cannot prove what he believes.
In the second, if the individual externalizes what he believes, his
freedom to do so becomes subject to the authority of the State. This is
so because religious freedom can be exercised only with due regard to
the rights of others. Example: Go forth and multiplycannot marry
several times just to comply.
58. May a Jehovahs Witnesses Member who is the Court
Interpreter of RTC Branch 253, Las Pinas City, be held liable for
grossly immoral conduct for living with a married man while
her very own marriage was still subsisting?
No. As held in ESTRADA VS. SOLEDAD ESCRITOR, 492 SCRA 1
(Resolution of the Motion for Reconsideration), 408 SCRA 1, the
Supreme Court held that she is not liable for grossly immoral
conduct because:
She is a member of the Jehovahs Witnesses and the Watch
Tower Society;
That the conjugal arrangement was in conformity with their
religious beliefs;
That the conjugal arrangement with Quilapio has the approval of
her congregation.
Escritor likewise claimed that she had executed a DECLARATION OF
PLEDGING FAITHFULNESS in accordance with her religion which allows
members of the Jehovahs witnesses who have been abandoned by their
spouses to enter into marital relations. The Declaration thus makes the
resulting union moral and binding within the congregation all over the
world except in countries where divorce is allowed. Escritors conjugal
arrangement cannot be penalized as she has made out a case for
exemption from the law based on her fundamental right to religion.
59. May children of Jehovahs Witnesses in public schools be
forced to sing the National Anthem; recite the Patriotic Pledge;
and Salute the Flag under pain of being expelled for non-
compliance?
No since such is in violation of their religious beliefs. (ROEL
EBRALINAG, ET AL VS. THE DIVISION SUPERINTENDENT OF SCHOOLS OF
CEBU, March 1, 1993). Religious freedom is superior to the statute
requiring the pupils to sing the National Anthem; recite the Patriotic
Pledge; and Salute the Flag. The doctrine laid down in Gerona vs.
Secretary of Education was reversed.
60. How may the right to travel be impaired?
The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired except upon lawful order of the
court. Neither shall the right to travel be impaired except in the interest
of national security, public safety, or public health, as may be provided
by law.
61. Is the right to travel affected by the Human Security Act?
Yes, Section 26 provides that persons who have been charged
with terrorism or conspiracy to commit terrorismeven if they have
been granted bail because evidence of guilt is not strongcan be:
Detained under house arrest;
Restricted from traveling; and/or
Upon application of the prosecutor, the suspects right to travel shall
be limited to the municipality or city where he resides or where the case
is pending, in the interest of national security and public safety. Travel
outside of said municipality or city, without the authorization of the
court, shall be deemed a violation of the terms and conditions of the bail
which shall then be forfeited as provided in the Rules of Court.
These restrictions shall be terminated upon acquittal of the accused;
or the dismissal of the case filed against him; or earlier upon the
discretion of the court or upon motion of the prosecutor.
62. May President Marcos validly compel the government to
issue him his travel papers in order that he could return to the
Philippines from his US exile?
No. (FERDINAND MARCOS, ET AL. VS. HON. RAUL MANGLAPUS, ET
AL., G.R. NO. 88211, September 15, 1989 and the Resolution of the
Motion for Reconsideration dated October 27, 1989). What is provided by
the Philippine Constitution is the right to travel and not the right to
return. These two (2) rights are different under the Universal Declaration
of Human Rights and International Covenant on Civil and Political Rights.
THE RIGHT TO RETURN TO ONES COUNTRY IS NOT AMONG THE RIGHTS
SPECIFICALLY GUARANTEED BY THE BILL OF RIGHTS, WHICH TREATS
ONLY OF THE LIBERTY OF ABODE AND THE RIGHT TO TRAVEL, BUT IT IS
OUR WELL-CONSIDERED VIEW THAT THE RIGHT TO RETURN MAY BE
CONSIDERED AS A GENERALLY ACCEPTED PRINCIPLE OF INTERNATIONAL
LAW, UNDER OUR CONSTITUTION, IS PART OF THE LAW OF THE LAND.
63. What is the residual power of the President?
It is the power of the President in balancing the general welfare and the
common good against the exercise of rights of certain individuals. The
power involved is the Presidents RESIDUAL POWER to protect the
general welfare of the people.
64. May a person out on bail be validly allowed to travel abroad?
Yes, subject to the following requisites ( Manotoc vs. CA, 142
SCRA 149):
 He must however [1] convince the courts of the urgency of his
travel, [2] the duration thereof, and [3] that his sureties are willing to
undertake the responsibility of allowing him to travel.
65. Is the right to information on matters of public concern
absolute?
No. While the right of the people to information on matters of
public concern shall be recognized and access to official recordsshall
be afforded the citizen, it must be subject to such limitations as may be
provided by law as well as reasonable conditions imposed by public
officials in custody of said records like the payment of the expenses of
reproduction of public documents; the request must be done during
office hours, etc.
66. May the COMELEC be compelled to publish the names of the
nominees of the different party-list groups for the May 14, 2007
elections despite the prohibition on such publication as
embodied by the Party-List Act?
Yes, the COMELEC must publish the same despite the prohibition
in the law. Such prohibition violates the right to information on matters
of public concern on the part of the citizen. (bantay republic vs. comelec,
may 4, 2007)
67. May the President validly prohibit members of her Cabinet
as well as other officers in the executive department from
attending investigations in aid of legislation by Congress?
No. Such would violate the right of the people to information on
matters of public concern. It is only through said investigations that the
people will be informed of the workings of the different departments of
the government. (SENATE OF THE PHILIPPINES, represented by SENATE
PRESIDENT FRANKLIN DRILON, ET AL., VS. EXEC. SEC. EDUARDO ERMITA,
ET AL., G.R. No. 16977, April 20, 2006 )
68. May a Barangay validly exercise the power of eminent
domain?
Yes, subject to the approval by the President.( Barangay Matictic
vs. Elbinias, 148 SCRA 83)
69. What are the requisites before an expropriator may validly
obtain a writ of possession to take over possession of the
expropriated property?
It depends:
1. If the expropriation is for a National government projects
or national infrastructure projects, like those covered by
the Build-Operate-Transfer, RA 8974 shall be followed. This
means that there must be a [a] Complaint for expropriation which
is sufficient in form and in substance; and [2] the 100% of the
market value of the property sought to be expropriated must first
be paid to the owner of the property. (REPUBLIC OF THE
PHILIPPINES VS. JUDGE GINGOYON, 478 SCRA 474)
2. In ordinary expropriation cases, the rule is that in the case of
BIGLANG-AWA VS. JUDGE BACALLA, 354 SCRA 562. It provides:
Pursuant to Section 2, Rule 67 of the 1997 Rules of Civil Procedure
and the doctrine laid down IN THE ROBERN DEVELOPMENT CASE, the
only requisites for the immediate entry by the government in
expropriation cases are:
the filing of a complaint for expropriation sufficient in
form and substance; and
the making of a deposit equivalent to the ASSESSED
VALUE OF THE PROPERTY SUBJECT TO EXPROPRIATION.
3. If the expropriation is being done by a Local Government Unit,
the Supreme Court decision in the case of THE CITY OF ILOILO
VS. JUDGE LEGASPI, RTC 22, ILOILO CITY, 444 SCRA
269, shall be complied with:
1. the complaint for expropriation filed in court is sufficient in form
and substance; and
 2. the expropriator must deposit the amount equivalent to 3. its actual or potential uses;
15% of the fair market value of the property to be
expropriated based on its current tax declaration. 4. particular case of lands;

5. their size, shape, location; and

70. Who determines the just compensation in expropriation 6. the tax declarations thereon.
cases? What are the factors to be considered in determining the
same? Finally, note that as held in the case of Republic vs. Santos, 141
SCRA 30, the market value as recommended by the board of
Determination of just compensation is a judicial function with the commissioners appointed by the court were at best only ADVISORY AND
assistance or recommendation of the court-appointed commissioners. PERSUASIVE AND BY NO MEANS FINAL OR BINDING. (BERKENKOTTER,
(Manotok vs. CA, May 21,1987) INC. VS. COURT OF APPEALS AND REPUBLIC OF THE
PHILIPPINES, December 14, 1992).
The factors to be considered in determining the just
compensation/market value are:

1. cost of acquisition;

2. the current value of like proerties;